Pacifico v. State

Decision Date29 September 1994
Docket NumberNo. 93-728,93-728
Citation642 So.2d 1178
Parties19 Fla. L. Weekly D2100 Joseph PACIFICO, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Victor L. Chapman and Antoinette Dipalma, Barrett & Chapman, P.A., Orlando, for appellant.

Robert A. Butterworth, Atty. Gen., and Joseph S. Garwood and Thomas Falkinburg, Asst. Attys. Gen., Dept. of Legal Affairs, Tallahassee, for appellee.


Appellant, Joseph Pacifico, appeals his conviction and sentence, after a jury found him guilty of sexual battery with physical force not likely to cause serious personal injury, and not guilty of kidnapping. The issues on appeal are: (1) whether the cumulative effect of prosecutorial misconduct deprived appellant of a fair trial; (2) whether the trial court erred in excluding testimony as to the victim's state of mind at the time of the incident; and (3) whether the trial court erred in admitting testimony regarding the victim's statements to her roommates under the "first complaint" exception to the hearsay rule. We reverse and remand for a new trial.

When the events giving rise to these charges occurred, the victim was an eighteen-year-old freshman at Florida State University (F.S.U.). She shared a two-bedroom apartment with three other young women, who were students at Tallahassee Community College. Appellant, a Tampa resident, moved to Tallahassee ostensibly planning to attend F.S.U. He shared a three-bedroom, two-bath house with two other young men, both of whom were F.S.U. students and members of Sigma Pi fraternity. Appellant was then twenty-five years of age; he told his housemates that he was twenty-one, and that he was an F.S.U. student. Appellant never applied for admission to the university; it appears he claimed to be an F.S.U. student so he could join Sigma Pi fraternity.

At the trial of this cause, the prosecutor began her opening statement in the following manner:

This case is about an older slick fraternity guy who targeted a naive freshman girl, tricked her into coming to his house and then by physical force, insults and threats confined her there and forced her to have sexual intercourse against her will, leaving her with injuries to her sex organs described by the emergency room physician as more severe than those he had seen in most sexual battery cases. 1

The facts relevant to the issues on appeal, as reflected by the trial testimony, establish that on the evening of January 14, 1992, the victim and a friend who dated a Sigma Pi fraternity member, attended a Sigma Pi rush party. The two women arrived at the fraternity party at 11:00 p.m., with plans to attend an "after" party at the off-campus residence of one of the fraternity members.

The victim and her fellow student were both acquainted with appellant through mutual friends who were Sigma Pi fraternity members. At the party, the victim encountered appellant. Subsequently, the victim agreed to ride to the "after" party with appellant, who said he knew where the party was being held. After driving for a while, appellant told the victim he was lost. With the victim's acquiescence, appellant stopped and bought beer. Appellant then suggested that they stop at his house so he could show the victim some pamphlets on spring break week, an event she had been invited to attend. When they arrived, the house was dark. The victim followed appellant to his room, where he changed into boxer shorts and a T-shirt.

According to appellant's account of events, the victim wanted to change into a T-shirt, which he provided to her, and then she voluntarily engaged in sexual intercourse with him. The victim testified that appellant wrestled with her, removed her clothes by force, and told her it would not matter if she screamed, because his roommates would think that he was having a good time. After the sexual intercourse, the victim dressed and appellant drove her to her apartment.

The trial court denied a defense motion to prevent the victim's roommates from relating the statements made to them by the victim upon her return to the apartment after the sexual encounter. One of the victim's roommates testified that at 3:00 a.m. of the night in question, she responded to the victim's knock at the apartment door, and immediately asked the victim what was wrong. The roommate further testified that the victim's hair was matted, her head was down, she was shaking as though she had been crying but did not want her roommates to know, her mascara had run down her face, and she was an emotional wreck. The victim told her roommates that nothing had happened, and she just wanted to go to bed.

When the victim and her roommate were in their bedroom, the roommate again asked what had happened, whereupon the victim stated over and over, "he hurt me." When her roommate asked what he did, the victim stated, "he raped me." At that point, the roommate called to the other woman, who rushed into the bedroom. The victim's roommates testified that the victim was "crying hysterically," "in a fetal position," and was "crying and gasping for air." After attempting to comfort the victim, her roommates drove her to the hospital. On the drive to the hospital, the victim sat in the car in a dazed state, shaking and crying.

Dr. Alexander, the examining emergency room physician, stated the victim told him she knew appellant, and she went to his house voluntarily. The victim told Dr. Alexander that she was in a bedroom in the house, and that appellant grabbed her, threw her on a bed, and was verbally and physically insistent that she have sex with him. The victim said she resisted, by biting and striking appellant, but he undressed her by force and forced her to have intercourse with him. The medical examination revealed early bruises on the victim's right thigh and left leg, swelling of the area around the vagina, and swelling of the opening of the vagina. The doctor said the findings were consistent with the details of forced sexual intercourse related by the victim. The doctor also stated that he thought the degree of swelling was more severe in this instance than in the majority of sexual assault patients he had examined.

During closing arguments, the prosecutor's remarks elicited several objections, two motions for mistrial, and occasional admonishments by the trial court. The prosecutor began her closing argument thusly:

Ladies and gentlemen of the jury, this case is about a chronic liar, a convicted felon, 2 a sadistic selfish bully who lied his way into a fraternity because he liked the social opportunities and the life style that it offered him. He targeted a naive trusting freshman girl. He tricked her into coming to his apartment by manipulation and ruse.

Continuing in this vein, the prosecutor advised the jurors that "[t]his defendant is a criminal, and he needs to be convicted." Noting that appellant's girlfriend was in the courtroom, the prosecutor said,

Sex is available to him, ... but rape is not about sex. It is not an act of love or affection or intimacy. It is an act of violence and power, domination and control. You can't get that with your girlfriend.

We find all the time that rapists have girlfriends.

After being admonished by the trial court, the prosecutor continued along the same line, stating Rapists get their kicks off dominating, off terrorizing, off of demeaning another person. He can't do that with a relationship with a girlfriend.

. . . . .

People are raped in their homes all the time. They're raped in shopping malls. They're raped in cars. They're raped walking down the streets. They're raped in alleyways.

. . . . .

You cannot unrape __ __. You cannot unkidnap her.

After an objection by defense counsel, and an admonishment by the trial court, the prosecutor again stated:

There she [the victim] sits. She was raped. You cannot unrape her. She was kidnapped. She was confined. She was abducted.

Defense counsel again objected, argued that the prosecutor was invoking the golden rule, and moved for a mistrial on the basis of cumulative error throughout the trial. The trial court denied the motion, but again directed the prosecutor to limit her argument to comments upon the evidence. When the motion for mistrial was denied, defense counsel requested a curative instruction. Concluding that a curative instruction would be misunderstood by the jury, the trial court refused the requested instruction, and also denied the renewed request for a mistrial.

With reference to the credibility of the witnesses, the prosecutor stated that appellant--

... is a convicted felon. He is a chronic liar. He told about lying to get into the fraternity. He wasn't really a student. He lied about his age. His roommates said he lied.

In her rebuttal, the prosecutor again referred to appellant as a liar, stating, "He lied and he lied and he lied." After a characterization of appellant as "sadistic," and a defense objection which was overruled, the prosecutor stated:

Now, does he walk out of this courtroom today laughing, or do you make him take responsibility for what he did to __ __ that night?

The jury found appellant guilty as charged of the offense of sexual battery, and not guilty of the offense of kidnapping. The trial court sentenced appellant in accordance with the minimum recommended guidelines sentencing range, to a term of five and one-half years of incarceration.

The first issue concerns various instances of improper prosecutorial comment. It is well settled that control of the prosecutor's comments to the jury is a matter of trial court discretion, and the exercise of that discretion will not be disturbed absent a clear showing of abuse. Crump v. State, 622 So.2d 963, 972 (Fla.1993). A failure to object to improper prosecutorial comment will preclude review, unless the comments were so prejudicial as to constitute fundamental error. Street v. State, 636 So.2d 1297 (Fla.1994); Craig v. State, 510 So.2d 857, 864 (Fla.1...

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    ...question is whether Petitioner had other felony convictions that could be used for impeachment purposes. Pacifico v. State, 642 So. 2d 1178, 1183 (Fla. 1st DCA 1994) (per curiam) ("a prosecutor may use a defendant's prior conviction as an impeachment tool"). Petitioner states he assured his......
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