Palazzolo v. State, 2D98-416.

• Decision Date: 12 January 2000
• Docket Number: No. 2D98-416.,2D98-416.
• Citation: 754 So.2d 731
• Parties: Raymond PALAZZOLO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

754 So.2d 731

Raymond PALAZZOLO, Appellant, v. STATE of Florida, Appellee.

No. 2D98-416.

District Court of Appeal of Florida, Second District.

January 12, 2000.

Rehearing Denied April 6, 2000.

Bruce G. Howie of Piper, Ludin, Howie & Werner, P.A., St. Petersburg, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Patricia E. Davenport, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Acting Chief Judge.

Raymond Palazzolo appeals his convictions and sentences for one count of capital sexual battery and one count of lewd and lascivious conduct. He raises numerous issues on appeal arising from a trial that was both procedurally and factually complex. We reverse his convictions due to several errors and remand for a new trial.

I. THE PROCEEDING BELOW

The State's information alleged that on an evening in the fall of 1996, when C.G. was six years old, Mr. Palazzolo penetrated her vagina with his finger, had union between his mouth and her sex organ, and exposed his penis in her presence. For this conduct, the State charged two counts of capital sexual battery and one count of lewd and lascivious conduct. The information was amended three times. Initially, the information alleged that this conduct occurred on Saturday, November 9, 1996. Six months later, the State amended the information to allege an unspecified date between November 7 and December 15. Finally, a few months before trial, the State alleged a date between November 7 and November 29, 1996. Mr. Palazzolo was the former boyfriend of C.G.'s mother. The State claimed that she had allowed him to babysit her young son and daughter one night in November while she went to the store. The State maintained that the mother left her children with Mr. Palazzolo, even though she had recently obtained a domestic violence injunction to keep him away from her. The criminal episode allegedly took place while the mother was on that shopping trip. Thus, the only direct witnesses were the two children, who were under the age of eight. The State had no physical evidence to support the charges. The dates in the information were apparently changed because the boy's testimony suggested this event took place on a Sunday. Later investigation established that the children were with their father on Saturday and Sunday. The mother claimed the event took place on the preceding Friday.

Mr. Palazzolo claimed that the mother hated him because of an incident of domestic violence that occurred in front of the children in May. He maintained that he had never been to the mother's apartment after she moved out of his house. It was his theory that the children's father, S.G., may have assaulted C.G. on Sunday, and the children had psychologically transferred this event to him. The trial court prevented him from introducing evidence that S.G. was a convicted sex offender and also excluded proffered testimony from a psychologist about his transference theory. Neither party called S.G. as a witness, and the State provided no independent witness to establish that Mr. Palazzolo had ever been to the mother's apartment.

During the trial, the court granted Mr. Palazzolo's motion for judgment of acquittal on the count of capital sexual battery alleging oral union, but denied the remaining motions for judgment of acquittal. The trial court denied Mr. Palazzolo's requests for a twelve-person jury. It also refused to give an instruction describing the penalty for capital sexual battery. It declined to allow him to voir dire the victim to establish whether she was competent to testify prior to her testimony. It allowed the State to introduce extensive child victim hearsay as cross-examination in the defense's case without complying with the requirements of section 90.803(23), Florida Statutes (1997). The trial court gave jury instructions that were not the standard instructions and allowed digital "union" to constitute capital sexual battery.

At the conclusion of the trial, the jury found Mr. Palazzolo guilty of the two remaining charges, and he was sentenced to life imprisonment without possibility of parole on the capital sexual battery charge and to a concurrent term of 26 months in prison for the lewd and lascivious charge.

II. THE EVIDENCE

C.G. is a little girl who was born in the fall of 1990. Mr. Palazzolo was a friend of C.G.'s mother. The mother, C.G., and C.G.'s eight-year-old brother lived with Mr. Palazzolo until May 1996. In May, the mother and Mr. Palazzolo had a domestic dispute. As a result, she obtained a domestic violence injunction against him. Nevertheless, she claims that he came to her apartment with her approval on at least six occasions over the next few months, and that she left her two children with him on an evening in November 1996.

C.G., who was seven when she testified at trial, initially claimed that she did not remember the night that Mr. Palazzolo came to babysit. After a little coaxing, she remembered the night and that her mother had gone shopping. She said that Mr. Palazzolo played games with her for awhile, but then pulled down his pants and exposed his "pee-pee" to her in her mother's bedroom. When she refused to touch his penis, he grabbed her hand and forced her to touch it. This frightened C.G., so she ran into the living room to be with her brother. He appeared to be sleeping.

In the living room, while C.G. was lying on a couch, Mr. Palazzolo lifted up her nightgown and stuck his two fingers "up [her] crotch." This "stung." She "kept on scooting up" until she banged her head on "the pole" because his fingers hurt her. The record does not establish what she meant by the pole. Then she fell asleep and her mother came home. She denied that Mr. Palazzolo did anything with his tongue.

C.G.'s brother had not seen Mr. Palazzolo for more than a year before the trial and did not identify him at trial. He admitted that he disliked Mr. Palazzolo, apparently because of the earlier domestic violence incident. He testified that Mr. Palazzolo babysat the two children on an evening and that they initially played a Mighty Morphin Power Ranger game. Then Mr. Palazzolo took his sister into his mother's bedroom. At first, the boy pretended to be asleep on the couch. Then, he tip-toed to the doorway of the bedroom. He saw Mr. Palazzolo expose his privates to his sister. He also heard Mr. Palazzolo ask her to touch his penis and saw her touch it. Then the boy accidentally made a noise and was afraid that he would be discovered, so he returned to the couch and pretended to sleep. When Mr. Palazzolo and his sister returned to the living room, he heard Mr. Palazzolo warn her not to tell anyone or she would get in trouble. He did not testify about any incident of digital penetration in the living room. It is obvious from the record that the two children had discussed their testimony with one another prior to the trial. The boy testified that he told his mother about the incident the day after it occurred. C.G.'s mother testified that her son told her about this incident on the Monday after this incident. This is significant because, if the boy's testimony is accurate, the incident took place on Sunday. The two children spent Saturday and Sunday with their father, who is divorced from the children's mother. The father is a convicted sex offender. As explained later, the jury was never allowed to know about the father's criminal record.

After her son told her about the incident, the mother took her daughter aside to ask her about the event. The girl was reluctant to talk and told her that Mr. Palazzolo had shown her his pee-pee. The daughter did not disclose any incident of digital penetration at that time, but the mother implied that her daughter told her later about such an event. At some point, the daughter told her mother that she might have dreamed the incident. The mother claims that she confronted Mr. Palazzolo and that he denied everything. She claims he threatened to harm her if she reported the incident to the police. This incident was reported to the police by an undisclosed source about ten days later.

As part of the State's investigation, C.G. was examined by a physician on December 18, 1996. He found no physical evidence of digital penetration. He admitted that it would be very unusual for a young girl to have no physical damage if her vagina had been penetrated by two fingers because the opening at the hymen would only be five to six millimeters wide. Then he stated:

Well, again, it depends on what you call penetration. If penetration includes the concept of touching or union with the external genitalia, then this is, of course, quite possible to happen with any number of fingers.

Although an investigation occurred, the State did not call any child abuse investigator as a witness. It did call a police officer who had attempted to arrange an interview with Mr. Palazzolo. The officer testified that Mr. Palazzolo agreed to be interviewed, but he did not appear for the interview. Instead, Mr. Palazzolo left the state.

Mr. Palazzolo testified at the trial. He claimed that the mother and her two children lived with him during the first six months of 1996, and that he babysat the children on occasions prior to that time. He admitted that the couple had a fight in May, and that he hit the mother hard enough to require stitches in her head. The children had witnessed this fight. The mother was granted an injunction for protection against domestic violence on the basis of this incident and, as a part of this injunction, Mr. Palazzolo was to have no contact with the mother.

He went to New York after the fight in May, but called the mother in July to tell her she had to leave his house because he was coming home and could not live with her. He claimed she was irate about being forced to move out. In October, he pleaded guilty to some offense stemming from the incident of domestic violence and was placed on one year's probation....