Reed v. State, No. 1D99-2562.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: WOLF, J.
• Citation: 783 So.2d 1192
• Parties: Loretta REED, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 01 May 2001
• Docket Number: No. 1D99-2562.

783 So.2d 1192

Loretta REED, Appellant,
v.
STATE of Florida, Appellee

No. 1D99-2562.

District Court of Appeal of Florida, First District.

May 1, 2001.

783 So.2d 1194

Nancy A. Daniels, Public Defender; Jamie Spivey, Assistant Public Defender, Tallahassee, for appellant

Robert A. Butterworth, Attorney General; Sherri Tolar Rollison, Assistant Attorney General, Tallahassee, for appellee.

WOLF, J.

Loretta Reed (appellant) appeals her conviction of aggravated child abuse of her minor daughter, a second-degree felony under section 827.03, Florida Statutes (1997). Appellant contends that the trial court reversibly erred (1) by refusing to allow the jury to have a current view of the victim's wounds, which purportedly could have led the jury to believe the injuries inflicted upon the child were less severe or long-lasting than the state's charges indicated; and (2) by giving an erroneous standard jury instruction defining an essential element of the crime in a manner directly contrary to the requirements set forth in State v. Gaylord, 356 So.2d 313 (Fla.1978), as recently construed in Young v. State, 753 So.2d 725 (Fla. 1st DCA 2000). We find no abuse of discretion in the lower court's refusal to require the victim to reveal her physical wounds at the trial. As to the second issue, we affirm based upon appellant's failure to preserve the issue for appellate review but certify a question of great public importance as to this issue.

FAILURE TO ALLOW JURY TO VIEW CURRENT INJURIES

The state's second-amended information alleged that between May 1 and October 29, 1997, appellant did "commit an aggravated battery upon and/or willfully torture or maliciously punish" the victim, a child under age 18, "by repeatedly hitting her with a stick and/or an electrical cord."¹ The trial took place 19 to 24 months after the window period in which the offense had been committed. During the state's case, a detective's photographs of wound marks on the victim's back, leg, buttocks, and side (taken very soon after the injuries had been inflicted and reported to the authorities) were entered in evidence without an objection. Noting the amount of time that had elapsed since the occurrence of the injuries, defense counsel asked that the jury be allowed to view the current appearance of the victim's back and body. The defense's strategy was that if the injuries from the whipping were no longer visible, or were barely visible, this would constitute exculpatory evidence on the disputed issue of the severity and permanency of the wounds. The state objected to a current viewing on the ground that requiring the child to reveal her wounds to a

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jury of strangers would be traumatic and would constitute an unwarranted invasion of her right to privacy. Alternatively, the state asserted that neither a live viewing nor the taking and disclosure of current photographs of the wounds were appropriate or necessary, in that the victim's treating physician would testify that the wound marks observable in the state's earlier photos had "almost completely" faded. The defense's request, which was renewed at the beginning of its own case over the state's objection, was denied. The court also declined a defense request to inform the jury that the court had refused to allow a current physical display or photographic viewing of the wounds

A trial court's ruling on the admissibility of evidence is subject to the abuse of discretion standard of review, see Sexton v. State, 697 So.2d 833, 837 (Fla. 1997), and comes to this court clothed with a presumption of correctness. See Savage v. State, 156 So.2d 566, 568 (Fla. 1st DCA 1963). Appellant concedes that "[t]here is no general constitutional right to discovery in a criminal case." Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977). She acknowledges also that witnesses for the state are protected by article I, sections 12 ("searches and seizures") and 23 ("right of privacy") of the Florida Constitution. See State v. Brewster, 601 So.2d 1289 (Fla. 5th DCA 1992). We conclude that appellant has not met her burden of demonstrating that the refusal to allow a current viewing or current photographs of the victim's wounds constituted "prejudicial error." § 924.051(7), Fla. Stat. (1997). Here, the victim was not a witness. The state correctly asserts that a current viewing or current photographic evidence of the injuries showing that the wounds had faded was not relevant to the question of whether the injuries had occurred. As no contrary evidence was presented, such evidence was not needed to impeach. Assuming for the sake of argument that a current viewing would have been relevant, we would still conclude that, absent a showing that "strong or compelling reasons" existed for the jury to be permitted to view the current wounds, the trial court properly found no basis for requiring a viewing. See State v. Smith, 260 So.2d 489 (Fla.1972) (holding trial court lacked authority to order witnesses, who might be used by the state to identify persons involved in perpetration of crime alleged to have been committed by defendants, to be examined for visual acuity by specified physician prior to trial); State v. Kuntsman, 643 So.2d 1172 (Fla. 3d DCA 1994) (holding that trial court departed from essential requirements of law by ordering prosecution witnesses to view array of 38 photographs and then be questioned about photos during the course of criminal depositions where defense had failed to present strong or compelling reasons for discovery order). The refusal to allow a current viewing did not in any manner impinge upon appellant's constitutional right to due process. See Fuller v. State, 669 So.2d 273 (Fla. 2d DCA 1996); State v. Farr, 558 So.2d 437 (Fla. 4th DCA 1990). Furthermore, the requested viewing would have merely corroborated the testimony of appellant's pediatrician that the child's wounds had almost completely faded.

GIVING AN ERRONEOUS JURY INSTRUCTION ON AN ESSENTIAL ELEMENT

The statute under which appellant was charged states, in pertinent part:

(2) "Aggravated child abuse" occurs when a person:

783 So.2d 1196

(a) Commits aggravated battery on a child;

(b) Willfully tortures, maliciously punishes, or willfully and unlawfully cages a child; or

(c) Knowingly or willfully abuses a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child.

§ 827.03(2), Fla. Stat. (1997). The state's charging instrument essentially tracked subsections (2)(a) and (2)(b).

The standard jury instruction for this crime states, "`Maliciously' means wrongfully, intentionally, without legal justification or excuse." Fla. Std. Jury Instr. (Crim.) 227. In Young v. State, 753 So.2d 725 (Fla. 1st DCA 2000), we held that the standard jury instruction did not adequately define malice because it did not state that to find the defendant guilty, it must be determined that the accused "`actually harbored' ill will, hatred, spite or an evil intent." Id. at 729. Unlike the defendant in Young, however, the defendant in this case did not object to the incomplete instruction.²

In the instant case, the judge instructed the jury in accordance with the standard jury instruction which had been adopted by the supreme court, and he was never alerted to a potential problem with that instruction. The instruction which was read, while overly inclusive, did not totally fail to address the element of malice, and there is no allegation that the prosecutor misused the inaccurate instruction in closing argument.

Fundamental error in a criminal case has been described as "error that reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Barnes v. State, 743 So.2d 1105, 1108 (Fla. 4th DCA) (quoting Kilgore v. State, 688 So.2d 895 (Fla.1996)), rev. denied, 744 So.2d 457 (Fla. 1999). Challenges to an inaccurate or erroneous instruction must be preserved for

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appeal. See State v. Delva, 575 So.2d 643, 644-645 (Fla.1991); see also Archer v. State, 673 So.2d 17, 20 (Fla.1996); Geralds v. State, 674 So.2d 96, 98-99 n. 6 (Fla. 1996); Tolbert v. State, 679 So.2d 816, 818 (Fla. 4th DCA 1996) (en banc). Even alleged errors in instruction that are asserted to mislead the jury concerning an element of the crime must be preserved for appeal. See Auger v. State, 725 So.2d 1178, 1178-79 (Fla. 2nd DCA 1998); see also Smith v. State, 772 So.2d 625 (Fla. 4th DCA 2000). But see Hubbard v. State, 751 So.2d 771, 772 (Fla. 5th DCA 2000). If the challenged instructions define either a nonexistent crime or totally fail to address an element of a crime, the alleged error may be considered to be fundamental. See Mosely v. State, 682 So.2d 605, 606 (Fla. 1st DCA 1996) (holding that instructing jury on nonexistent crime constituted fundamental error); Mercer v. State, 656 So.2d 555, 556 (Fla. 1st DCA 1995) (holding that failing to instruct on an essential element of a crime constituted fundamental error). The instant case involves an alleged inaccurate definition of an element of a crime rather than a total failure to address a necessary element

Appellant relies heavily on language in Young which indicated that giving an inaccurate definition of the term "maliciously" constituted fundamental error. See Young, 753 So.2d at 727. This language was dicta.³ This court specifically stated in Young that the issue "was adequately preserved for appellate review." Id. The two cases cited in Young for the proposition that giving an incorrect instruction on an element of a crime constitutes fundamental error—Mercer and Steele v. State, 561 So.2d 638 (Fla. 1st DCA 1990)—are factually distinguishable from this case and do not stand for the general proposition that the Young court stated.⁴

While we understand the dissent's concern (as well as the Young court's concern) about...