Palazon v. State, 96-03267
| Decision Date | 15 April 1998 |
| Docket Number | No. 96-03267,96-03267 |
| Parties | 23 Fla. L. Weekly D982 Oswaldo PALAZON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Bartow, and Brad Permar, Assistant Public Defender, Clearwater, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appellee.
Oswaldo Palazon appeals his conviction and sentence for sexual battery. 1 He was sentenced as a habitual offender to twenty-five years' imprisonment, suspended after fifteen years with the remaining portion of the sentence to be served on probation. We reverse because we are unable to conclude that the prosecutor's improper closing argument was harmless error. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).
The alleged victim in this case is a woman in her mid-twenties who claims that Mr. Palazon raped her on June 10, 1995, at 6 a.m., after his girlfriend fell asleep. Mr. Palazon's defense was that the act of sexual intercourse was consensual. His former girlfriend testified that she saw the alleged victim flirting with Mr. Palazon before she fell asleep, that she saw them lying together when she awoke, and that she pounded the victim in the face. The testimony of all three witnesses may be clouded by the fact that they had consumed significant quantities of alcohol and illegal substances in the hours preceding this event.
To establish that the sexual act was not consensual, the alleged victim produced a tampon nine days after the event, which she claimed had been lodged inside her body during the attack. The tampon had not been discovered during a physical examination by a nurse shortly after the alleged attack. The victim did not appear to be menstruating at the time of that examination, and she had not reported the tampon to the examining nurse. The State did not preserve this evidence after the victim had provided the tampon during discovery.
The nature of the case along with this evidence did not make for a pleasant trial. The defense portrayed the alleged victim as someone who manufactured false evidence, even though her motive to do so was far from clear. The State had to attack the credibility of Mr. Palazon's former girlfriend, whom it chose to call as its first witness. The credibility issues in this trial undoubtedly resulted in an emotionally charged atmosphere. Unfortunately, the prosecutor, Richard A. Ripplinger, did not restrain his emotions and the trial court did not sustain the defense's objections to Mr. Ripplinger's closing argument.
Mr. Ripplinger began his closing argument:
This case isn't about no stupid tampon. This isn't about [the victim's] personal hygiene habits. It's about that man, right there, taking that little, mousy little girl in the middle of the night, in a strange neighborhood and strange house, dragging her into his living room, running his mouth and teeth all over her body, shoving her--her legs up in the air and shoving his penis into her repeatedly, eventually forcing that tampon back into her vaginal cavity.
....
What's the best he can do? Well--well, you know, today you said you thought that the Defendant, before you fell asleep, was sitting on the couch; didn't you tell that other officer about a year ago he was sitting on a chair? That's--that's the best he can do. After all these interviews, the uncontroverted testimony was that that girl was raped. She repeatedly said, no, no, no.
Mr. Yeazell: Objection, Your Honor--
Mr. Ripplinger: All he said was it's okay.
The Court: What's your objection?
Mr. Yeazell: My objection is obviously this is completely overboard, flagrant behavior by the State Attorney and is completely inappropriate in this courtroom.
The Court: Objection overruled. But let's continue, Mr. Ripplinger.
Mr. Ripplinger: I apologize. I call them like I see them.
....
You know, maybe Mr. Yeazell would be, you know, a pretty tough rape victim. You know, he'd know what to do. He'd know--he'd know how to scream, he'd know how to fight back.
Mr. Yeazell: Objection, Your Honor.
Mr. Ripplinger: He'd know how to jump out the window.
The Court: What's the objection?
Mr. Yeazell: My objection is that's improper argument. It's an attack on Defense counsel. It's completely inappropriate.
The Court: I don't think it's an attack. Objection overruled. Continue.
Mr. Ripplinger: Time and time again he's sitting there going over with this girl, you know, all the things that she could have done. It's pretty easy sitting back in his cushy law office, sitting in his chair, playing Monday-morning quarterback trying to think of all the things that could have been done or should have been done.
Mr. Ripplinger's statements amounted to an improper attack on defense counsel. See Redish v. State, 525 So.2d 928 (Fla. 1st DCA 1988) (); Ryan v. State, 457 So.2d 1084 (Fla. 4th DCA 1984) (); Jackson v. State, 421 So.2d 15 (Fla. 3d DCA 1982) (). Defense counsel objected to the prosecutor's improper remarks, but he did not move for a mistrial because all objections were overruled. When an objection is overruled, counsel is not required to move for a mistrial in order to preserve the issue for appellate review. See Simpson v. State, 418 So.2d 984 (Fla.1982).
Upon close examination of the record and the permissible and impermissible evidence on which the jury could have relied, we hold the State has not proven beyond a reasonable doubt that the error complained of did not contribute to the verdict. See DiGuilio, 491 So.2d at 1135. Because this case involved contradicting versions of the events, the credibility of all witnesses was a central issue, and the prosecutor's remarks were far from proper, we are compelled to grant a new trial.
Reversed and remanded.
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