Vizzi v. State
| Decision Date | 04 November 1986 |
| Docket Number | 86-2071,Nos. 86-1934,s. 86-1934 |
| Parties | 11 Fla. L. Weekly 2316 Carl VIZZI, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Jack M. Denaro, Miami, for appellant.
Jim Smith, Atty. Gen., and Richard L. Polin, Asst. Atty. Gen., for appellee.
Before HUBBART, BASKIN and DANIEL S. PEARSON, JJ.
This is an appeal from an adjudication and sentence for direct criminal contempt entered against an assistant public defender. The basis of the contempt conviction was an alleged disobedience of a trial court order by counsel, committed during the trial of a criminal case. For the reasons which follow, we affirm.
The facts relating to the contempt conviction are as follows. The appellant Carl Vizzi, an assistant public defender, was assigned, upon court appointment of the Public Defender, to represent Alberto Murillo who was charged by information with: (1) sexual battery, (2) kidnapping, and (3) false imprisonment, before the Circuit Court for the Eleventh Judicial Circuit of Florida. On July 29, 1986, a jury was empaneled, with Circuit Judge Amy Steele Donner presiding, and the case proceeded to trial.
The state and the defense presented opening statements to the jury. During the defense opening statement, Mr. Vizzi focused his argument on the character of the complainant:
"MR. VIZZI: She works at a peep show, exhibits her body, sells her body, get tips. This is a woman who's trash, gutter filth.
MR. BAGLEY [prosecutor]: Objection, your Honor, to the character.
THE COURT: Sustained." (emphasis added).
The trial judge then requested a side-bar conference and admonished defense counsel:
"THE COURT: Number one, Mr. Vizzi, your characterization of the victim in this case is totally uncalled for totally and I don't want to hear it again." (emphasis added).
Defense counsel resumed his opening argument and it proceeded as follows:
Defense counsel then concluded his opening statement.
The following day the prosecutor petitioned the court, outside the presence of the jury, to instruct Mr. Vizzi not to call the victim a prostitute again. The trial court ruled, based on its interpretation of the Rape Victim Shield Statute [§ 794.022, Fla.Stat. (1985) ], that Mr. Vizzi was not permitted to attack the character of the victim by (a) delving into the prior sexual behavior of the victim, except as to any prior sexual activity the victim may have had with the defendant, or (b) calling the victim a prostitute, whore, or words of similar import, although it could be shown that the victim had previously taken money from the defendant for sexual favors. Mr. Vizzi, it is fair to say, strongly disagreed with the court's rulings on these points, but was unsuccessful in persuading the court to change its position thereon. 1 These rulings eventually became the predicate for the contempt conviction under review.
The complainant in the case on trial then took the witness stand before the jury. She testified that she worked as a striptease dancer at a club named "Live Peeps" in Miami, Florida. She would dance completely nude in an arena for fifty cents and in a private viewing booth for five dollars a customer. She stated that she was paid by tips, that she was not allowed to ask customers for money or to have any relationships with customers, and that customers were not allowed to touch the dancers. She claimed that the defendant Murillo, a perfect stranger, came to the establishment in question one morning, that she proceeded to a private room to change her clothes, that she conversed with Murillo about "many things," that she later voluntarily left with him to have a cup of coffee, that they drove and talked in his vehicle for two hours, that they stopped in a park where she performed an act of oral sex on him against her will, and that she then took a taxi back to "Live Peeps" without reporting the incident to anyone, although eventually she complained to the police.
Mr. Vizzi, on cross examination, attempted to establish that "Live Peeps" was, in fact, a house of prostitution, that the complainant was an exhibitionist-prostitute, and that her husband (who worked at "Live Peeps") was a voyeur who got sexual gratification when she took her clothes off at "Live Peeps," but became very angry when she engaged in acts of prostitution with the customers. This was done in support of an overall defense theory that the complainant had falsely accused the defendant of a forced sex act in this case in order to avoid the ire of her husband when he found out she had gone off with the defendant. The defendant later gave testimony that no sexual act had taken place on the date in question, that he previously had sex with the complainant but refused to pay for it, that she had threatened to expose him to his wife unless he paid, and that he had come to "Live Peeps" that day to talk her out of the alleged blackmail threats.
Mr. Vizzi, accordingly, cross examined the complainant as follows:
Q. --and wanted to do a little bit more with them that could be done in those rooms where you work?
Isn't it true that that happens all the time?
Later, he engaged in the following cross examination of the complainant which led to his contempt conviction:
Q. Isn't it true that your husband is a voyeur and you're an exhibitionist and he doesn't like it to get any further than that. He gets sexual gratification when you take your clothes off, but he gets very angry when you perform tricks with customers?
....
THE COURT: Michell, at this time I'm holding Mr. Vizzi in contempt of court. He directly violated an order which concerned the mentioning the possible prostitution of this victim and at this time I'm holding him in contempt of court.
Do you have anything to say to purge the contempt?
....
The next day, the prosecuting attorney again petitioned the court, outside the presence of the jury, to exclude all testimony of the complainant's prior sexual conduct unconnected with the defendant. Mr. Vizzi responded that there was an exception to the Rape Victim Shield Statute, which related to motive and bias of the victim, and he asserted that the defense was that the victim fabricated the story to protect herself from her jealous husband. The court granted the state's request, pointing out that even for exceptions permitted under the law, an in camera hearing is required, and that counsel could not undertake to bypass the court and go straight to the jury.
The trial then proceeded to its conclusion without further incident. The jury found the defendant Murillo not guilty on all charges. The trial court then conducted a sentencing hearing on Mr. Vizzi's contempt conviction. Mr. Vizzi stated, in his own defense, that he had no intent to disobey any of the trial court's orders, that he presented a vigorous defense in the case because he believed the defendant to be falsely accused, and that he had asked the offending question of the complainant to bring out her motive in accusing the defendant. He apologized to the court for asking the question and said he would not violate the trial court's orders in the future. He further stated that perhaps he misunderstood what the court was trying to order as he had no intention to violate the Rape Victim Shield Statute, but that he felt it was essential to bring out what he did in order to accord the defendant a fair trial. 2
The trial court stated for the record that it found Mr. Vizzi's conduct "so outrageous that it was forced to use the most severe sanction available to maintain order and fairness." The trial court then sentenced Mr. Vizzi to five days in jail on the criminal contempt conviction, from which an appeal was immediately taken to this court. After a stay pending appeal was denied by the trial court, this court issued, upon Mr. Vizzi's application, a writ of habeas corpus, granted a stay pending appeal, and ordered the appeal expedited. 3 Counsel for the respective parties are to be commended for the speed and efficiency with which this appeal has been subsequently conducted and for the highly competent briefs filed and oral argument presented in this cause.
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