Winters v. State, 82-26
| Decision Date | 19 January 1983 |
| Docket Number | No. 82-26,82-26 |
| Citation | 425 So.2d 203 |
| Parties | Gary Lamar WINTERS, a/k/a Gary Collier Wallace, a/k/a Wallace G. Collier, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Div., Asst. Public Defender, Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
Appellant appeals a judgment of conviction for sexual battery while using a deadly weapon, following a jury trial. We affirm.
Appellant first contends that when he took the stand in his own defense, the prosecutor improperly asked questions which were comments on his earlier exercise of his right to remain silent. We have examined the entire context of the line of questions, see Gosney v. State, 382 So.2d 838 (Fla. 5th DCA 1980), and cannot characterize them as comments on defendant's right to remain silent.
We write, however, for the purpose of making it clear to the trial bar that there must be an objection to any such line of questioning if the issue is to be properly preserved for appeal, and the objection must specifically point the trial judge to the error complained of. It is not sufficient, as here, to merely object that the question "is not a proper question under the circumstances." A question may be improper for a variety of reasons, and the trial judge should not be made to guess at the basis for counsel's objection. It has been said many times, that:
To meet the objectives of any contemporaneous objection rule, an objection must be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal. Castor v. State, 365 So.2d 701 (Fla.1973).
Hufham v. State, 400 So.2d 133, 136 (Fla. 5th DCA 1981).
Similarly, appellant cannot object now to remarks of the prosecutor in closing argument as inflammatory, because as to most of the remarks complained of there was no objection made at the trial. We do not find the comments to be so fundamentally inflammatory as to require a reversal.
Appellant contends that the trial court improperly excluded evidence of prior sexual activity of the prosecuting witness, where, as here, the defense to the charge is consent. The admissibility of evidence of prior sexual activity of the victim where consent is at issue is regulated by statute. 1 Appellant proffered...
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