Petruschke v. State

• Decision Date: 06 March 2013
• Docket Number: No. 4D11–883.,4D11–883.
• Citation: 125 So.3d 274
• Parties: Luke PETRUSCHKE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

125 So.3d 274

Luke PETRUSCHKE, Appellant,

v.STATE of Florida, Appellee.

No. 4D11–883.

District Court of Appeal of Florida, Fourth District.

March 6, 2013.

Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

Appellant, Luke Petruschke, appeals his convictions for two counts of lewd and lascivious molestation committed upon C.V., a three-year-old boy. We reverse for a new trial because the prosecutor made improper remarks that deprived appellant of a fair trial. We also write to address evidentiary issues that are likely to arise on retrial.

By way of background, appellant was a good friend of C.V.'s father and frequently came over to C.V.'s family's house. According to C.V.'s mother, appellant was always “very, very nice” to C.V. and seemed concerned about him. When C.V. was alone in his room watching movies, sometimes appellant would go in and sit with him with the door open.

On the evening of the alleged incident, appellant was at C.V.'s family's home, drinking and partying with C.V.'s father and another adult relative of C.V. Between 9 and 11 p.m., C.V.'s mother put C.V. to bed in his grandmother's room, which was the room closest to the living room. Appellant stayed over at C.V.'s house and eventually went to sleep on the couch in the living room. At some point in the night, C.V.'s father went to check on C.V. and saw appellant lying down next to C.V. near the foot of the bed. The father told appellant to come back to the living room. The father thought “nothing of it” and did not have any suspicions that appellant had done anything.

The next morning, C.V.'s mother developed a gut feeling that something might have happened to C.V. She testified that she felt this way because when her adult male neighbor came over that morning, C.V. jumped in his lap and hugged him, which the mother believed was unusual.

When appellant was gone, the mother asked C.V. if anyone had ever touched him in his private areas. C.V. answered: “Yes. Luke did last night.” When the mother asked C.V. to show her how appellant touched him, C.V. put his hands in the front of his pants and again in the back. The mother told C.V. that this was serious and he could not lie about it. C.V. said, “Mommy, I wouldn't lie to you about that.” The mother then had C.V. repeat the allegations to his father. C.V. again said that appellant touched “his butt and his PP” and then demonstrated to his father how appellant touched him.

When appellant returned, C.V.'s father confronted him, asking him why he would touch a boy. Appellant's reaction was “like a deer in the headlights” and appellant left without saying anything. Shortly thereafter, C.V.'s father again confronted appellant and screamed, “You like to touch boys?” C.V.'s father started coming toward appellant, and appellant said, “I'm sorry.” Appellant ran into his car and locked the door, but C.V.'s father broke the car window with a rock and started beating him. C.V.'s father was arrested and charged with aggravated battery; he spent about thirty days in jail and was ultimately placed on probation for the offense.

A detective spoke to C.V.'s mother and then conducted a taped interview of C.V. In the interview, C.V. told the detective that appellant touched his PP and his butt underneath his clothing for a “little bit” of time “yesterday ... [i]n my room.”

Following these allegations, appellant was charged by information with two counts of lewd or lascivious molestation committed upon a child under twelve-years of age.

The case proceeded to trial. The jury heard evidence of the facts set forth above, including testimony from C.V. about the incident. Additionally, the state elicited testimony from both parents—over appellant's objections that the evidence was irrelevant, prejudicial, and unsupported by expert testimony—that, after the incident, C.V. wet his bed almost every night, woke up crying in terror, and went to counseling. Although the father was in jail for about a month following his arrest for attacking appellant, both parents denied that this could have caused C.V.'s behavior. The father talked to C.V. every day on the phone, saw him once a week at the jail, and told him he would be coming home soon. The mother stated that C.V.'s bed wetting continued after the father got out of jail.

After the parties gave their closing arguments, which will be discussed in greater detail below, the jury found appellant guilty as charged on both counts. This appeal ensued.

Improper Prosecutorial Comments

We first address appellant's argument that the state's improper comments deprived him of a fair trial.

A trial court's rulings on objections to improper argument are reviewed under the abuse of discretion standard. Paul v. State, 958 So.2d 1135, 1136 (Fla. 4th DCA 2007). In order to require a new trial based on improper prosecutorial comments, the prosecutor's comments must either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise. Anderson v. State, 863 So.2d 169, 187 (Fla.2003).

Here, we agree with appellant that the prosecutor made numerous improper comments. Specifically, we find that the following comments the prosecutor made, over objection, were improper: 1) claiming that C.V. lacked the mental ability to fabricate the allegations; and 2) repeatedly referring to appellant as a “pedophile” and suggesting that a pedophile would “touch a kid whenever he feels like it.” ¹

1) Remark that C.V. Lacked the Mental Ability to Fabricate the Allegations

A prosecutor “is prohibited from commenting on matters unsupported by the evidence produced at trial.” Fenster v. State, 944 So.2d 477, 479 (Fla. 4th DCA 2006). Closing argument must be confined to record evidence and reasonable inferences from that evidence. Spoor v. State, 975 So.2d 1233, 1235 (Fla. 4th DCA 2008).

Here, although the trial court initially sustained defense counsel's objection to the prosecutor's argument that a three-year-old does not have the capacity to fabricate allegations of sexual abuse, the court ultimately denied appellant's motion for mistrial and then ruled that the prosecutor could argue that a three-year-old does not have the mental ability to fabricate allegations of sexual abuse. Allowing this type of argument was an abuse of discretion.

Contrary to the state's argument in this appeal, the prosecutor's remark was not a “fair inference” from the evidence. There was absolutely no evidence presented at trial that a three-year-old child lacks the mental ability to fabricate allegations of sexual abuse. The prosecutor simply invented this claim in closing argument.

While it might be permissible for a prosecutor to argue that a child of three would be unlikely to fabricate allegations of sexual abuse out of self-interest, there was no evidence to support a blanket assertion that a three-year old lacks the ability to fabricate allegations of sexual abuse. Here, the allegations of sexual abuse were not spontaneous, but rather were in response to questioning by an adult, and there was no evidence presented at trial that a three-year-old child lacks the mental ability to fabricate allegations of sexual abuse in such circumstances. In short, the prosecutor's argument that C.V. lacked the mental ability to fabricate the allegations was unsupported by the evidence and was not a reasonable inference from the evidence. It was therefore improper.

2) Repeatedly Calling Appellant a “Pedophile”

Arguments that have no purpose but to inflame the minds of jurors are prohibited, as are general attacks on the defendant's character. Chambers v. State, 924 So.2d 975, 978 (Fla. 2d DCA 2006). For example, a prosecutor's references to a defendant as a “sadistic, selfish bully,” a “criminal,” a “convicted felon,” a “rapist,” and a “chronic liar” were held to fall into the realm of improper character attacks. See Pacifico v. State, 642 So.2d 1178, 1183 (Fla. 1st DCA 1994). Similarly, our court has found that a prosecutor's thirty references to the defendant as a “condom-carrying masturbator” or a “masturbator” were designed to inflame the prejudices of the jury and constituted an impermissible general attack on the defendant's character, even though some evidence supported the comments in that the defendant admitted to masturbating in a bathroom stall. See Elisha v. State, 949 So.2d 271, 273 (Fla. 4th DCA 2007).

In a case where the facts were similar to those in this case, the Fifth District held that a prosecutor's reference to the defendantas a pedophile in the closing argument of the defendant's trial for sexual battery upon a child was improper because, in addition to suggesting that the defendant had committed prior illegal sexual acts involving children, it also improperly suggested a profile-type argument that, if the defendant had certain traits which fit the offender profile, he must have abused the victim. See Hudson v. State, 820 So.2d 1070, 1071–72 (Fla. 5th DCA 2002).²

Here, the prosecutor's repeated references to appellant as a pedophile were clearly designed to inflame the prejudices of the jury and constituted an impermissible general attack on appellant's character. Referring to appellant as a pedophile improperly suggested that he may have committed prior illegal sexual acts involving children and further suggested an improper “pedophile profile” argument. Although defense counsel objected only to the first reference to appellant as a pedophile, the court immediately overruled that objection, making it clear that the prosecutor would be permitted to pursue that line of argument. Cf. ...