PULCINI v. State of Fla., 4D08-2885.

Citation41 So.3d 338
Decision Date21 July 2010
Docket NumberNo. 4D08-2885.,4D08-2885.
PartiesArthur PULCINI, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

OPINION TEXT STARTS HERE

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Paul Morris of Law Offices of Paul Morris, P.A., Miami, Jonathan Kasen, P.A., Fort Lauderdale, and Stephen H. Rosen, P.A., Coral Gables, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.

POLEN, J.

Arthur Pulcini appeals his conviction and sentence for unlawful sexual activity with a minor, C.H. He contends that the trial court erred in (1) admitting the testimony of the Williams rule witness; (2) allowing the prosecution to treat witness Brandon Meloche as hostile; (3) refusing to admit appellant's statement to police in its entirety; and (4) denying appellant's motion for mistrial following the State's suggestion during closing argument, in the absence of any evidence, that appellant had been arrested for the prior conduct introduced as Williams rule evidence. We reverse and remand for a new trial on the first issue, finding that the trial court allowed the presentation of improper Williams rule evidence. This moots the fourth issue, but we do comment briefly on the other two issues as they may arise again on retrial.

In September of 2005, C.H. was dating appellant's nephew, Brandon Meloche. She was sixteen years old at the time. She visited appellant's house often. Tommy and Tracy Burton lived on the property, and were always present when C.H. visited, including on the evening in question. The State's case centered around the credibility of C.H.'s testimony. C.H. said she went to appellant's house after work, around 7:00 p.m. The Burtons were there, and a man named Larry,1 who also lived on the property. When C.H. arrived, appellant told her to meet him in his office. They talked about Brandon. C.H. was upset because she could not reach him. Appellant gave C.H. two white, oblong pills, which he said were antidepressants. C.H. took the pills with a rum and coke. At this point, she and appellant were sitting at the cabana bar with the Burtons and Larry. Appellant asked C.H. if she wanted to go for a ride on his ATV around the property. C.H. felt tired and "woozy," but agreed to go. Appellant stopped the ATV far away from the cabana, so he and C.H. could talk in private. As they were talking, appellant grabbed the back of C.H.'s head, unzipped his pants, pushed C.H.'s head forward, and forced her to perform oral sex on him. He kept one hand on her head and put the other under her shirt; he felt her breast, over her bra. He also unzipped her pants and felt her vagina underneath her underwear. Appellant then drove them back to the bar area, where they got off the ATV. He grabbed C.H.'s wrist, gave her $100 and said, "we're going to have problems," if she told anyone. When they got back to the bar, the Burtons were still there. C.H. did not say anything to them, but tried to "star[e] them down" to get their attention. At one point, C.H. kicked Tommy Burton's chair. Appellant called C.H. over and reminded her that if she said anything they would have problems. C.H. drove herself home and went straight to bed. When she woke up the next day she had several new voice messages from Brandon. She called him and told him what had happened with appellant. The following day, C.H. went to the police department, where she gave a statement to Detective Chastain.

C.H. was examined at a sexual assault treatment center, two days after the incident. She provide several items of clothing, blood and urine samples for a toxicology screen, as well as vaginal, oral and breast swabs, and a hair sample, for DNA testing. C.H. told the examining nurse that appellant digitally penetrated her, forced her to perform oral sex on him, may have kissed her breast area, and that his semen may have gotten in her hair. C.H. said she had not bathed since the assault, but had brushed her teeth, eaten, ingested liquids, and had been vomiting since the incident. She had no physical injuries or trauma to her genital area. C.H. gave the nurse a $100 bill, which she said appellant had given her when he told her not to say anything. C.H. asked for the money back before she left.

No semen or foreign DNA was detected on any of the samples. Toxicology results revealed the presence of nicotine in C.H.'s urine, but no other drugs. C.H.'s blood sample revealed the presence of an anticonvulsant used to treat seizures and headaches. No alcohol was detected.

On cross-examination, C.H. acknowledged she had lied in her deposition when she said she did not leave the house for a year and a half after the incident because she was afraid of appellant. She then clarified that she left her house only to go to work. C.H. did not seek mental health treatment until a week before trial (two and a half years after the incident).

Appellant's phone records reflected that C.H. called him multiple times in the weeks before the incident, though C.H. denied making all of the calls. She said Brandon often used her cell phone.

When Brandon was called as a witness, he said he did not want to be at the trial; he was there only because he was subpoenaed. After identifying appellant in the courtroom as his uncle, he requested a break. The court took a brief recess. Back on the record, Brandon testified that he had previously been intimate with C.H., who was a friend. He remembered giving a statement over the phone, to Detective Chastain, two days after the incident, but did not recall exactly what he said to the detective. Brandon also remembered going to his uncle's home the day after the incident and having a verbal confrontation with him, but could not recall what his uncle had said to him that day to make him angry. When Brandon's statement did not refresh his recollection, the State requested permission to treat the witness as hostile. The trial court granted the request, noting: "He already said he doesn't want to be here, the first question. When he — within the first couple of questions he began to cry, and we had to take a break. So the State's request is granted." The court clarified that the prosecutor could not read the statement, but could ask leading questions. In the colloquy that followed, Brandon was confronted with statements he made to Detective Chastain — such as, that his uncle had told him that C.H. "gave him oral." However, Brandon did not remember making any of these statements.

On cross-examination, Brandon said the only way he knew about any pills was from C.H. His statement also reflected that appellant never mentioned pills to him. Brandon said he could not remember the details of the verbal confrontation with his uncle because he was high on marijuana, which he smoked daily at that time. He did not recall being high when he spoke to Detective Chastain.

Detective Chastain Mirandized appellant and took his statement. Appellant said C.H. was at his house on the day in question, and that they took a short ride on his ATV around the property. Afterwards, they went back to the bar and sat around for an hour. Appellant went swimming, and C.H. came over to say goodbye on her way out. Appellant denied giving C.H. any pills, but said he did give C.H. money that night. When asked whether or not he had touched the victim's vagina, appellant said, "no, now you're getting too crazy for me."

Williams rule witness, C.S., testified that she used to keep her horse on appellant's property nineteen or twenty years ago. She took care of his horses and babysat his children, in exchange for board. C.S. was about twelve years old at the time. Two incidents with appellant at his home made her uncomfortable. The first occurred when C.S. and a girlfriend were in a bathroom getting ready. C.S. was showering. Appellant entered the bathroom, undressed, put C.S.'s friend in the shower with C.S. and then got in himself. He said he had to rinse off. Appellant did not touch C.S.

The second incident occurred in appellant's office one afternoon. C.S. was there, along with two other kids. "[E]veryone was wrestling around," when appellant got on top of C.S., straddled her, held her hands above her head, pulled her blouse over her face and put his mouth on her breast. The incident happened quickly. Appellant did not give C.S. any money or provide her with any alcohol or drugs.

After these incidents, C.S. told her mother she did not want to go over to appellant's house anymore because she "was uncomfortable with the situation that [she] was becoming a part of."

Prior to C.S.'s testimony, the trial court gave a Williams rule instruction, advising the jury that the testimony should be considered only as it relates to proof of motive, intent, plan, the absence of mistake or accident on the part of the defendant or to corroborate the testimony of C.H.

The defense called the Burtons as witnesses. Tom Burton testified that he had lived on appellant's property for three and a half years, with his wife and two children. C.H. visited the house often with appellant's nephew, to hang out. On the night in question, they were all sitting around the tiki bar, listening to music and talking. No one, including C.H., drank alcohol that night. Appellant rode up on his ATV and wanted to know what was going on. For the next twenty minutes or so, they all sat there, talking and laughing. Then appellant said he had some things to do and went back over to his ATV. C.H. jumped up and asked to go for a ride. She hopped on the back of the vehicle and they drove off, returning less than five minutes later.

Mr. Burton lost sight of appellant and C.H. when they were gone, but could hear the engine of the ATV. When they returned, appellant went into the house and C.H. came back over to the tiki bar where the Burtons were sitting. A song came on that C.H. liked, and she...

To continue reading

Request your trial
10 cases
  • Pridemore v. State, No. 4D19-1555
    • United States
    • Florida District Court of Appeals
    • August 5, 2020
    ...the prior act was remote in time or where the charged crime is less severe than the collateral crime.For example, in Pulcini v. State , 41 So. 3d 338 (Fla. 4th DCA 2010), the defendant was tried and convicted of unlawful sexual activity with his nephew's sixteen-year-old girlfriend. Id. at ......
  • Ruffa v. Saftpay, Inc.
    • United States
    • Florida District Court of Appeals
    • April 29, 2015
  • Schwartzberg v. State
    • United States
    • Florida District Court of Appeals
    • March 29, 2017
    ...not absolute and a trial court may exercise its discretion to exclude irrelevant portions of a recorded statement." Pulcini v. State , 41 So.3d 338, 348 (Fla. 4th DCA 2010).For example, in Mason , the defendant was seen leaving the scene of a recent burglary and told a witness, "I told him ......
  • Carlisle v. State
    • United States
    • Florida District Court of Appeals
    • May 7, 2014
    ...which is governed by section 90.404, Florida Statutes, and is commonly referred to as ‘Williams rule evidence.’ ” Pulcini v. State, 41 So.3d 338, 344 (Fla. 4th DCA 2010) (citing Williams v. State, 110 So.2d 654 (Fla.1959)). “ ‘Reverse Williams rule’ evidence” refers to evidence of other cri......
  • Request a trial to view additional results
4 books & journal articles
  • Witness
    • United States
    • James Publishing Practical Law Books Trial Objections
    • May 5, 2022
    ...killing, when witness appeared “reluctant to answer,” suggesting he was evasive rather than truly forgetful . FLORIDA Pulcini v. State , 41 So.3d 338, 347 (Fla. Dist. Ct. App. 2010). In prosecution for unlawful sexual activity with a minor, witness’s stated reluctance to testify against def......
  • Evidence
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 2
    • April 30, 2021
    ...charged incident is not sufficiently similar to the collateral incident to allow admission of the collateral crime.) Pulcini v. State, 41 So. 3d 338 (Fla. 4th DCA 2010) When collateral crimes are used to establish a fact other than identity, the similarity of facts between the charged and c......
  • The trial (conduct of trial, jury instructions, verdict)
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 1
    • April 30, 2021
    ...prior inconsistent statement. Held: Under the circumstances the court properly allowed leading and allowed impeachment. Pulcini v. State, 41 So. 3d 338 (Fla. 4th DCA 2010) (See Kovaleski v. State , 1 So. 3d 254 (Fla. 4th DCA 2009) and cited cases, including dissent, for discussion of whethe......
  • Witness questioning and answering
    • United States
    • James Publishing Practical Law Books Florida Family Law Trial Notebook
    • April 30, 2022
    ...interest the witness may have in the outcome of the litigation. Erp v. Carroll , 438 So.2d 31 (Fla. 5th DCA 1983); Pulcini v. State , 41 So.3d 338 (Fla. 4th DCA 2010). 7.8.3 Adverse Party F.S. §90.612(2)(3) A party may call an adverse witness and interrogate that person by leading questions......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT