Millett v. State, AX-377
| Decision Date | 10 December 1984 |
| Docket Number | No. AX-377,AX-377 |
| Citation | 460 So.2d 489 |
| Parties | Kevin Michael John MILLETT, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, Michael J. Minerva, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., John Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant Millett appeals from his conviction and sentence of four years for child abuse, urging that the trial court erred for the following reasons: (1) in denying appellant's right to a fair trial by commenting to the jury on his credibility as a witness; (2) in failing to apprise appellant that in exchange for a guideline sentence he had relinquished his protection against ex post facto laws; and (3) in deviating from the recommended guideline sentence without stating in writing clear and convincing reasons justifying the deviation. We affirm as to the first two issues raised and reverse the last.
At the time of the offense, appellant was living with his girlfriend, then separated from her husband, and the girlfriend's 17-month old daughter, the victim. The morning of September 6, 1982, the mother left appellant and her daughter at her house, for the purpose of seeking a job. Appellant testified at trial that while the mother was gone, the infant began spitting up bananas, and after unsuccessfully telling the infant to stop, he "smacked" the child off the cushions and onto a dresser. The infant suffered a near mortal head injury and possible permanent physical injuries following the incident.
During cross-examination of appellant, the state sought to pinpoint the time of the offense. The following then transpired:
Q. She had a bottle, and she had a banana.
A. Earlier, she had had a bottle, and we had just got done eating lunch. I can't remember what we had for lunch.
Q. What time of the morning was it?
A. What time that we are (sic) or--
Q. What time of the morning was it when she was eating the bananas or eating the piece of banana?
A. I guess 12:00 o'clock. I'm not really sure about the time.
Q. What time of the morning was it when you had breakfast?
A. About 10:30 or 11:00 o'clock.
Q. All right, sir. You gave her a piece of banana, and what else did you give her for lunch?
A. I can't remember what we had--We had just eaten breakfast.
(e.s.) Shortly thereafter, counsel for the state sought to clarify the location of the parties prior to the offense. The following then occurred:
Q. All right. And I take it she was in her room at the time?
A. Right.
Q. And where were you at the time?
A. In the bedroom.
Q. You were in your bedroom or her bedroom?
(e.s.) Thereafter, counsel for the state sought to pinpoint the severity and the intent with which appellant had struck the child by asking appellant to demonstrate the striking. The following then transpired:
Q. All right. You indicated that you got upset, and you smacked her, and you were aggravated. And on your Direct testimony you said, "I guess I smacked harder than that." Demonstrate to the Jury just how hard you struck her?
A. I don't even remember how hard I did hit her. I just struck out.
Q. Go ahead. You just struck out in anger?
A. Struck out, but not to do--to do any kind of harm like this to her--
Q. That's not my question.
(e.s.) On re-cross, the judge sustained as argumentative a defense objection to a prosecution question which implied that appellant was unconcerned by what he had done to the victim. Thereafter, appellant testified that he had been in the victim's bedroom a "couple of minutes" before striking her and the following exchange ensued:
A. A couple of minutes.
Q. And you gave her two minutes to stop spitting out the banana before you smacked her up against the dresser drawers?
(e.s.)
Following a lunch recess, the defense moved for a mistrial on the ground that the judge, during the four above quoted exchanges, had "commented" upon appellant's "credibility" before the jury. Appellant did not move for a curative instruction. Appellant's counsel stated:
With all due respect to the Court, I need to make an objection. Move for a mistrial as to the Court's comments during my client's testimony relating--on the weight of that--believability of that evidence.
Appellant argues that the trial judge violated Section 90.106, Florida Statutes, providing: "A judge may not sum up the evidence or comment to the jury upon the weight of the evidence, the credibility of the witnesses, or the guilt of the accused." In Ehrhardt, Florida Evidence § 106.1, p. 22, it is stated:
During a jury trial, the judge occupies a dominant position. Any remarks and comments that the judge makes are listened to closely by the jury and are given great weight. Because of the credibility that the comments are given and because they would likely overshadow the testimony of the witnesses themselves and of counsel, Section 90.106 recognizes that a judge is prohibited from commenting on the weight of the evidence, or the credibility of the witness, and from summing up the evidence to the jury. If such comment and summing up were permitted, impartiality of the trial would be destroyed.
(footnotes omitted)
During cross-examination of appellant, the judge's comments "could have been interpreted by a jury as a comment on appellant's veracity and therefore influenced their deliberations." Gordon v. State, 449 So.2d 1302, 1304 (Fla. 4th DCA 1984). We agree that the trial judge, during the four aforementioned exchanges, "commented" on appellant's credibility before the jury. The only remaining question is whether the motion for mistrial should have been granted.
Appellee relying on Ferguson v. State, 417 So.2d 639 (Fla.1982), responds that an appellant who fails to accompany his unsuccessful motion for a mistrial with a motion for a curative instruction is not entitled to a reversal of his conviction. Here, following a lunch recess, counsel first moved for a mistrial as to the court's comments earlier made during appellant's testimony. The judge overruled the objection and did not grant the mistrial. Appellant, however, never moved for a curative instruction. As the Florida Supreme Court has observed in Ferguson v. State, "[E]ven if the comment is objectionable on some obvious ground, the proper procedure is to request an instruction from the court that the jury disregard the remarks." Id. at 641 (e.s.). Appellee urges that appellant's failure to request such an instruction should prevent a reversal of his conviction.
Although the proper procedure normally would have been for appellant's counsel to move for a curative instruction, we do not regard his failure to do so, under the circumstances presented, as now barring his right to urge the point as error. The ordinary situation in which the rule requiring a motion for curative instructions occurs when the prosecutor--not the trial judge--makes the offending comments. In the case at bar the court on four occasions made statements in the presence of the jury relating to the responsiveness of defendant's answers, which may have caused the jury to question his credibility. Once the trial judge overruled appellant's objection to the "comments", and later the motion for mistrial, we consider that it would have been a...
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...the trial judge in fashioning a jury instruction on this subject should avoid unnecessary comments on the evidence. Millett v. State, 460 So.2d 489 (Fla. 1st DCA 1984); § 90.106, Fla.Stat. For the court to apprise the jury of the subjective "strengths and weaknesses" of polygraph evidence a......
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