Stephenson v. State

• Decision Date: 21 April 2010
• Docket Number: No. 3D08-1107.,3D08-1107.
• Citation: 31 So.3d 847
• Parties: Amy STEPHENSON, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

31 So.3d 847

Amy STEPHENSON, Appellant, v. The STATE of Florida, Appellee.

No. 3D08-1107.

District Court of Appeal of Florida, Third District.

March 3, 2010.

Rehearing and Rehearing En Banc Denied April 21, 2010.

Michael B. Cohen, Fort Lauderdale and Eileen I. Landy, Melbourne, for appellant.

Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.

Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge.

Amy Stephenson appeals from her conviction and twenty-five year sentence¹ for aggravated manslaughter of a child, a first degree felony, following a jury verdict finding that the death of her thirteen-month old daughter was caused "by the neglect of Defendant, a caregiver." § 782.07 Fla. Stat. (2007).

The State alleged and the jury apparently agreed that the child, who had suffered serious health problems since her premature birth and throughout her short life,² died as a result of the mother's conduct in depriving the child of food and other care. Although there was sufficient evidence to support the verdict, the case was hotly contested on numerous issues, including whether any alleged misconduct was the cause of the child's death³ and the degree of the crime, if any, involved in the mother's care of the child, particularly, whether she may have been guilty of a lesser offense such as neglect of a child by culpable negligence with great bodily harm, a second degree felony. See § 827.03(3)(b) (2007).

It is in this context that, without considering any of the other issues presented,⁴ we reverse on the ground that, although there was no appropriate objection, fundamental error occurred when the prosecutor commented on cross-examination and again during final argument on the fact that in the course of her pregnancy, the mother had contemplated aborting the decedent child. The transcript reveals the following:

Q: Prosecutor Let's go back to when you were in the hospital. When you were in the hospital after delivering Jasmine, you had occasion to speak to Colleen Cullen a social worker employed by Baptist Hospital; isn't that correct?

Defense counsel: Your honor—

A: defendant Not that accurate, not.

Q: What did you—

A: I had thought about it.

Q: You had thought about terminating your pregnancy; is that correct?

A: When I first learned that I was pregnant.

Q: And that's part of the reason you had late prenatal care; isn't that correct?

A: No.

Emphasizing this point in closing, the prosecutor stated:

Then, of course, the defendant testified. She admitted at first she was ambivalent about whether or not she wanted this baby at all.

The cases tell us—as if we needed to be told—that "abortion is one of the most inflammatory issues of our time," Cook v. State, 232 Ga.App. 796, 503 S.E.2d 40, 42 (1998), and, more important, that one who takes or even approves of this course is very adversely regarded by many in our society. Accordingly, numerous decisions reverse convictions after trials which improperly implicate that issue, including several, as in this case, which are necessarily based on a finding of fundamental error in the absence of proper preservation. See Billett v. State, 317 Ark. 346, 877 S.W.2d 913, 915 (1994) (approving decision not to allow evidence of witness's prior abortions and defendant's condemnation of her to show bias, where bias had otherwise been shown and "any probative value was clearly outweighed by the danger of unfair prejudice"); Brock v. Wedincamp, 253 Ga. App. 275, 558 S.E.2d 836, 842 (2002) (observing "even if evidence of the decedent's abortions and adoptions and sex life were somehow relevant, courts must consider whether `its probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice or of confusing the issues or of misleading the jury).'" (quoting Metro. Property & Ins. Co. v. Shepherd, 166 Ga. App. 300, 304 S.E.2d 74 (1983) (citation and punctuation omitted.)); Collman v. State, 116 Nev. 687, 7 P.3d 426, 436 (2000) (agreeing that information about abortion "was a collateral matter and the minimal value of it was `overwhelmingly outweighed' by the danger of unfair prejudice, confusing the issues, and misleading the jury."); Schneider v. Tapfer, 92 Or. 520, 180 P. 107, 108 (1919) (testimony that defendant had approved of abortion held irrelevant to issues involved and "was simply evidence which tended to debase and degrade the defendant.... Certainly none could have been offered which was more likely to inflame and prejudice the minds of the jury against the defendant"); see also Hudson v. State, 745 So.2d 1014, 1016 (Fla. 5th DCA 1999) (concluding "that the inflammatory evidence of two prior abortions certainly contributed to Hudson's conviction" and thus should not have been admitted); Wilkins v. State, 607 So.2d 500, 501 (Fla. 3d DCA 1992) (calling evidence that the defendant and his wife considered having an abortion of the baby-victim "excludable ... as ... an impermissible assault on the defendant's character and was otherwise irrelevant and inflammatory"). Cf. People v. Harris, 633 P.2d 1095, 1100 (Colo.App.1981) (concluding that admission of evidence that defendant suggested that wife's pregnancy be aborted (in trial for son's murder) not sufficiently prejudicial to warrant retrial, but acknowledging "it would have been better to exclude some of such evidence").

In addition, there are many cases in which the injection of other matters which are similarly objectionable—and sometimes significantly less so—has resulted in reversal, again often in the absence of appropriate objection below. Shootes v. State, 20 So.3d 434 (Fla. 1st DCA 2009) (concluding that defendant's right to an impartial trial was prejudiced by large number of law enforcement personnel in courtroom on last day of trial); Perez v. State, 689 So.2d 306, 307 (Fla. 3d DCA 1997) (observing that it is "highly improper to interject even a reference to, let alone an accusation of racism which is neither justified by the evidence nor relevant to the issues"); Gonzalez v. State, 588 So.2d 314, 315 (Fla. 3d DCA 1991) (finding fundamental error, in part, based on reference to defendant as a "sexual pervert"); see also Gluck v. State, 62 So.2d 71, 73 (Fla. 1952) (observing "neither defendant's religion, character, alleged prior offense, nor occupation were proper issues in the case ... and that prosecutor's comments were highly prejudicial and even if not calculated to, undoubtedly had an influence upon the jury"); Cordoba v. Rodriguez, 939 So.2d 319, 321-22 (Fla. 4th DCA 2006) (deeming fundamental error the admission of a physician's statement that an article (an outside source) that stated that "99 percent of automobile accidents result in lawsuits" was the basis for his conclusion that plaintiffs had not sustained permanent injuries, and observing "`fundamental error,' for purposes of granting a new trial, means an error which deprives a party of a fair trial or an error which objection or a curative instruction could not correct; such error gravely impairs the dispassionate and calm consideration of the evidence and merits by the jury."); Thornton v. State, 852 So.2d 911, 912 (Fla. 3d DCA 2003) (prosecutor's attempted impeachment asking whether defendant said he had to "burn a n----r" improperly referred to unrelated offenses and implied existence of inadmissible damaging facts); MCI Exp., Inc. v. Ford Motor Co., 832 So.2d 795, 800-02 (Fla. 3d DCA 2002) (characterizing as unfairly prejudicial, plaintiff CEO's reference to "Goddamn Cubans," which defendant exploited by taking phrase out of context, disparaging CEO's character, and exacerbating the phrase's prejudicial impact); McCallister v. State, 779 So.2d 615, 615-16 (Fla. 5th DCA 2001) (concluding that it was error to admit defendant's statement "that n----r is dead; when I get out, he better hope I never get out," made during transport after arrest); DeFreitas v, State, 701 So.2d 593, 601 (Fla. 4th DCA 1997) (concluding that comparison of case to O.J. Simpson case "coupled with reference to defendant as a stalker, possessive ex-boyfriend who disapproved of his ex-girlfriend's friends" violated rule against inflammatory argument); Kaas v. Atlas Chemical Co., 623 So.2d 525 (Fla. 3d DCA 1993) (granting defendant's motion for new trial where plaintiff's counsel during closing called witness a "liar"); Reynolds v. State, 580 So.2d 254, 256 (Fla. 1st DCA 1991) (concluding that despite lack of objection, "prosecutor's racial comments, which focused on the crucial issue of consent and improperly injected the issue of race ... were so egregious and so pervasive that Reynolds was deprived of his right to a fair trial.").

Speaking more generally,

for evidence to be admissible, it must be relevant. See § 90.402, Fla. Stat. (2002); Gore v. State, 719 So.2d 1197, 1199 (Fla. 1998). However, when the probative value of relevant evidence is substantially outweighed by the danger of unfair prejudice, it is inadmissible. § 90.403, Fla. Stat. (2002). "`Where a trial court has weighed probative value against prejudicial impact ... an appellate court will not overturn that decision absent a clear abuse of discretion.'" Sims v. Brown, 574 So.2d 131, 133 (Fla.1991) (quoting Trees v. K-Mart Corp., 467 So.2d 401, 403 (Fla. 4th DCA 1985)).

Jomolla v. State, 990 So.2d 1234, 1238 (Fla. 3d DCA 2008).

Here, the evidence at issue failed in both regards. It was not only not relevant, but any conceivable relevance was substantially outweighed by the danger of unfair prejudice to the defendant. At the trial, Stephenson's attorneys portrayed her as an inexperienced young woman who was let down by the system in caring for her premature and unhealthy baby. Counsel maintained that despite the mother's good efforts, the baby had serious and continuing health problems from the time of her birth. The state's position was that the baby died of...