Smith v. State
| Decision Date | 12 January 2022 |
| Docket Number | 1D20-106 |
| Court | Florida District Court of Appeals |
| Parties | Michael Smith, Appellant, v. State of Florida, Appellee. |
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Leon County. Francis Allman, Judge.
Michael Ufferman of Michael Ufferman Law Firm, P.A. Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Tabitha Rae Herrera, Assistant Attorney General, Tallahassee, for Appellee.
Michael Smith appeals his convictions and life sentence for capital sexual battery, raising four arguments for reversal: (1) the prosecutor made improper comments during closing arguments (2) the trial court improperly admitted child hearsay testimony despite untimely notice; (3) the court should have held a pretrial hearing on Smith's request for a statement of particulars; and (4) the cumulative effect of these errors denied Smith a fair trial. We affirm.
Hannah Conley, a senior case coordinator with the Child Protection Team, ("CPT") interviewed the two alleged victims:
W.R. and C.H., ages eight and fifteen, respectively, around the time of the offense. The victims shared their story with Ms. Conley in the interview. They were riding in Smith's truck one evening when he instructed the victims to perform oral sex on him. Later that same evening, Smith once again made C.H. perform oral sex on him in a house. W.R. also stated that Smith had anal sex with him at this house.
Five days before trial, the State gave notice of its intent to use a recording of the CPT interview as child hearsay evidence. The trial court ultimately admitted the video over Smith's objection.
The State filed an Amended Information that alleged the offenses occurred between January 1, 2015, and December 31, 2015. The defense then moved for a statement of particulars, asking the State to narrow the date range of the alleged offenses. Attempts to schedule a hearing for the motion fell through; defense counsel told the judicial assistant he could resolve the issue with the State without a hearing. As a result, the trial court did not hold a hearing and the State never amended the date range.
At trial, both victims testified to the sexual acts Smith committed against them. Hannah Conley testified about the interviewing methods she employed in her interviews with child witnesses and the purpose of those methods. Finally, the State played the video of the CPT interviews. Defense counsel never sought to cross-examine Ms. Conley during the trial.
During closing arguments, the State made a few remarks that sparked objections. Following the State's initial argument, Smith moved for a mistrial, arguing the State improperly bolstered the victims' testimony. Smith's counsel explained why the motion came at the end of the State's argument: "I tactically, intentionally waited until Ms. Scott was finished with her very, very well said closing argument," and "tactically, I wanted a record, you know, so there -- we now have a cumulative record . . . I don't believe in, in interrupting counsel in closing arguments." The court treated the motion as a contemporaneous objection and denied it.
Then during the State's rebuttal, the prosecutor told the jury:
This defendant does not have to prove his innocence. I am not asserting that to you at all. But when you have this kind of evidence put against you, two children saying these sort of things, swearing to these things the way they have, then, yes, if you believe them, that shifts to him. If you believe these children, then you find him guilty. He has not proven that he did not do this, if you believe them.
Again, Smith's counsel waited to object-this time until after the jury had retired to deliberate. Counsel explained why he waited: The court agreed that the State's comments on the burden of proof were improper, and even looked to counsel for an objection during the rebuttal. But this time, the court declined to treat counsel's objection as contemporaneous.
Despite the tardy objection, the court offered to bring the jury back out and give a curative instruction. Counsel declined, fearing that drawing more attention to the statement would do more harm than good. The court then noted that although the comment was improper, it was isolated and did not warrant a mistrial.
After deliberation, the jury returned a guilty verdict on all counts, and Smith was sentenced to life in prison. Smith moved for a new trial on three grounds: (1) the court's failure to order the State to respond to the Motion for Statement of Particulars and failure to grant the motion; (2) the admission of the recorded interviews with the victims; and (3) the State's improper burden-shifting comments during closing arguments. The court denied his motion, and this appeal followed.
Smith first points to four categories of improper prosecutorial comments he believes warrant reversal: (1) shifting or misstating the burden of proof; (2) bolstering the victims' testimony; (3) inflaming jurors' emotions; and (4) re-victimization. We affirm as to the last three categories without comment. Before addressing the State's remarks on the burden of proof, we must determine whether Smith preserved his argument for appeal.
Under the contemporaneous objection rule, parties must object when an error occurs during trial to allow appellate review. Shootes v. State, 20 So.3d 434, 437 (Fla. 1st DCA 2009). The party must then make the same specific contention on appeal. Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982).
This rule of course has exceptions, and one exists when a trial court treats a late objection as contemporaneous and rules on it. White v. Consolidated Freightways Corp. of Delaware, 766 So.2d 1228, 1233 (Fla. 1st DCA 2000). For closing arguments, this Court has limited the exception in White to apply only when a party raises an error "before the jury retire[s] for deliberations" and objects "at the first possible moment following the prosecution's closing argument." Cole v. State, 866 So.2d 761, 764 (Fla. 1st DCA 2004).
Counsel objected twice during the State's closing arguments, but neither objection preserved the arguments Smith makes on appeal. Smith's first objection, made right after the State's initial closing argument, falls within the exception to the contemporaneous objection rule set forth in White. Yet on appeal, Smith points to different comments, ones made in the State's rebuttal argument. And while counsel's second objection was aimed at some of the same comments Smith contests on appeal, the objection was too late. Because the jury had retired to deliberate, the objection falls outside the exception in White and failed to preserve Smith's arguments on comments the State made during rebuttal.
Smith then looks to Shootes, arguing that his motion for a new trial preserved his arguments. But Shootes is distinguishable. There, this Court held that a motion for a new trial preserved an issue for appeal when counsel "had no opportunity to [contemporaneously] object" and moved for a new trial "[a]s soon as counsel learned of [the error]." Shootes, 20 So.3d at 437. Here, Smith had a chance to object-the trial court even expected him to. But counsel chose to wait until after the jury left for deliberations to move for a new trial. As a result, his motion for a new trial preserved no errors for appeal.
Finally, Smith contends that his counsel's failure to preserve these issues constitutes ineffective assistance of counsel on the face of the record. We disagree. This claim can be brought on direct appeal "only if it is obvious from the record that counsel was ineffective, 'the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.'" Fox v. State, 104 So.3d 371, 371-72 (Fla. 1st DCA 2012) (quoting Dailey v. State, 46 So.3d 647, 647 (Fla. 1st DCA 2010)). We can conceive a tactical explanation for counsel's conduct because he gave one himself. Counsel told the trial court that he "tactically" avoids objection during the closing argument to build a record and that he refused a curative instruction to prevent further attention to the comments.
Since Smith preserved none of his arguments about improper comments, we review the contested comments for fundamental error. See Breeden v. State, 226 So.3d 336, 337 (Fla. 1st DCA 2017). A fundamental error is one 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." Id.
"The purpose of closing argument is to help the jury understand the issues in a case by 'applying the evidence to the law applicable to the case.'" R.J. Reynolds Tobacco Co. v. Kaplan, 321 So.3d 267, 272 (Fla. 4th DCA 2021) (quoting Murphy v. Int'l Robotic Sys., Inc., 766 So.2d 1010, 1028 (Fla. 2000)). Attorneys have wide latitude in presenting closing arguments. Cardona v. State, 185 So.2d 514, 520 (Fla. 2014). Yet, "it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt." Gore v. State, 719 So.2d 1197, 1200 (Fla. 1998).
The prosecutor here told the jury that if they believed the victims, the burden shifted to Smith and that Smith had not proven his innocence. On appeal, the State admits the argument was "badly articulated" but stops short of conceding error. These statements mischaracterized the burden of proof and sought to shift the...
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