DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2012
IVANA LINIC,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D09-4706
[February 8, 2012]
EHRLICH, MERRILEE, Associate Judge.
The defendant appeals a conviction a n d sentence for “culpable
negligence” child neglect causing serious bodily injury, as a lesser
included offense of aggravated manslaughter of a child. She raises nine
points which relate to the denial of her motions for judgment of acquittal,
several alleged evidentiary errors, and alleged inappropriate comments
which the prosecutor made during closing arguments. We conclude that
five of these points are meritorious, and reverse and remand for a new
trial.
The defendant’s infant son died o n February 21, 2007, d u e to
malnutrition and prematurity. The baby was born prematurely at a
hospital after thirty-three weeks’ gestation, in September, 2006. He
weighed four-and-a-half pounds at birth. For the first three weeks of life,
he stayed in the neonatal care unit at another hospital due to his
susceptibility to infections.
On January 14, 2007, the defendant brought the baby to the
hospital’s emergency room because the baby was constipated and acting
as if he was in discomfort. After the ER pediatrician, Dr. Marchand,
examined the baby, he diagnosed the baby with colic and constipation.
The baby, then three months and twenty days old, weighed seven
pounds, two ounces, having gained three pounds since his birth. The
emergency room physician testified that h e did not think there was
anything seriously wrong with the baby, and he did not even think that
the baby suffered from failure to thrive because the baby was not
emaciated or dehydrated, and despite being small, was premature. His
instructions to the defendant included adding one ounce of water a day
between feedings. He also testified that it is not uncommon for parents
without insurance, money, or Medicaid to come to the emergency room
with their children.
The baby died five weeks later, on February 21, 2007, and weighed six
pounds, one-half ounce.
Dr. Graham, the medical examiner who
performed the autopsy, testified that the baby died of malnutrition and
prematurity. He testified that the baby either had not received sufficient
food or was not able to process food in a constructive fashion. He
concluded that the baby had clearly been fed because he found a small
amount of stool in the small and large intestines and a small amount of
liquid in the child’s stomach, indicating that the child had been given a
bottle the morning of his death. He was unable to determine the exact
point the baby was fed, as normal functions tend to slow down with
starvation. The stool, however, clearly showed that the baby’s body was
able to take in food, swallow it, and then take the compounds from the
food and distribute them to the rest of the body. He was unsure what
the small amount of nonspecific fluid found in the stomach and large
and small intestines meant. However, Dr. Graham further concluded
that anyone who saw the baby would know that he needed medical care
if they were “people in the United States who are of sound mind.”
Dr. Graham explained that the baby did not look as if he had eaten
food or that he was able to use food in order to grow, the loose skin folds
over him were striking, his fat was nil, his muscle was greatly reduced,
and his ribs could be counted. Dr. Graham otherwise described a baby
that looked as though he was starving. He opined that the decline from
inability to process food or lack of feeding and lack of hydration would
take at least a week, but probably weeks, to occur. The baby may or may
not have had a medical condition related to starvation. Dr. Graham said
that it is easier to determine the reason for malnutrition in a live child.
Dr. Graham stated, however, that the baby’s condition would have
been apparent long before he had cardiac arrest, and that had he been
brought to a doctor long before cardiac arrest, he probably would still be
alive. He further stated that it was apparent, on February 21, 2007, that
the baby needed medical care as he had lost 20% of his body weight
since h e ha d been seen b y th e emergency room doctor in January,
weighing six pounds, one-half ounce at the time of death, five (5) weeks
later and there would be a reasonable expectation, “when you get into a
circumstance of terminal malnutrition,” that the baby will be very
listless, almost to the point of “suspended animation.” The cause of
death was dehydration and nutritional deprivation with a contributing
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cause being that the child was born premature. The manner of death
was undetermined as to whether it was natural, accidental, suicidal or
homicidal.
Dr. Colaizzo, the medical director of the child protection team,
testified as to why the baby died. He reviewed all of the baby’s medical
records after the fact. His opinion differed from that of the medical
examiner. He conceded that he did not know why the baby died, but the
baby’s “overall condition was such that this was a child that was clearly
in trouble in the days prior to death.” Dr. Colaizzo viewed the photo of
the baby taken post-mortem and determined that the baby appeared
extremely malnourished and wasted with extremely skinny arms and
legs. Dr. Colaizzo stated that this premature baby could have had a
congenital defect in his intestines, which did not form properly and
absorb nutrients, or anatomical or metabolic problems, and that often
failure to thrive infants have trouble feeding and th e choice of food
and/or the manner of feeding must be altered accordingly. He testified
that while in the neonatal unit of the hospital, when the baby was
started on bottles from intravenous feeding, in October, 2006, he was
spitting up but when started on lactose-free formula, he was tolerating
food.
The opinions of Dr. Colaizzo and the defendant’s expert, Dr. Welty,
also differed from those of Dr. Marchand, the emergency room doctor
who saw the baby on January 14, 2007. Dr. Colaizzo opined that Dr.
Marchand’s instructions to the child’s mother to add one ounce of water
to the baby’s intake between feedings could compromise the infant’s
nutritional intake and there was no reason to give water to an infant
under six months of age unless the baby lived in a really, really hot
climate. He agreed with the medical examiner that the baby was being
fed, as there was stool in the child’s intestines; however, he opined that,
on the day of his death, the child would have appeared listless like
survivors of the Nazi concentration camps, and that had the baby been
brought to the hospital earlier, he would have survived. He compared
the amount of subcutaneous tissue, fat and muscle content relative to a
normal sized baby and noted that the dramatic decrease in the baby’s fat
and muscle happened over a period of time. In his medical opinion, “the
child died of cachexia, or lack of food, and dehydration.” Although he
testified that there are conditions with which one can be born that can
do the same, he did not believe that these types of conditions caused the
baby’ s death, as these other conditions are usually associated with
symptoms like chronic diarrhea or vomiting. He believed that the caloric
intake was woefully inadequate and that the baby would have survived if
he had been brought to a doctor.
3
Dr. Welty also reviewed the child’s medical records, post mortem. He
too came to the conclusion that the baby had been compromised from
birth. According to his testimony, the baby had not been orally fed until
October 9, 2006, a few days before his discharge from the hospital. At
that time, the baby had not adequately adapted to oral feedings and was
spitting up. Blood tests done on the baby at the time were quite unusual
and not normal. He was greatly concerned that the emergency room
doctor, Dr. Marchand, had not done a growth chart on the baby during
his hospital visit in January, 2007, as it was his opinion that the baby
was already failing and that the doctor’s instructions to give the baby
more water would have compromised the child’s caloric intake. He
stated that, upon reviewing the histology slides that Dr. Graham made at
the autopsy, he found that the child’s lungs were “definitely impaired”
which h e related to the baby’s premature birth. He explained the
difficulty in feeding premature infants a n d opined that respiratory
impairment and malabsorption could not b e ruled out as causes of
death.
Deputy Umphrey took a voluntary statement from the defendant on
the d a y th e child died.
Sh e confirmed that the baby was born
prematurely and stated that until the date of the baby’s birth, she was
unaware of her pregnancy. The defendant was twenty years old and lived
with her parents, two brothers, and her sixteen-month old daughter.
She was no longer living with her children’s father due to his drug use
and other issues. The defendant’s parents helped her care for her
children when she went to work. The defendant regularly fed her baby.
She denied knowing that anything was wrong with her baby and was at a
loss to explain what happened to cause his death.
The defendant’s father testified in the defense case that the baby was
always thin, even skinny, but he never saw anything wrong with the
baby. He and his wife and their nineteen-year-old son who also lived
with them helped care for the baby, gave him bottles, and played with
him.
Palm Beach County Fire Rescue Paramedic David Prescott, who
responded to an emergency call at 11:45 a.m. on the date of the baby’s
death, described the baby as “ashen,” meaning ashy and gray and
lifeless. He testified that paramedics found a thin, lifeless baby on the
dining room table, with no breath or pulse. Their attempts to resuscitate
him were unsuccessful. Prescott wrote in his report that the baby had
“thin arms, thin legs, and a prominent rib structure.” Paramedics took
the baby to Palms West Hospital where he was pronounced dead.
4
Dr. Matese, the emergency room attendant on February 21, 2007 at
Palms West, read his report into the record with regard to what the
defendant stated: “she put the child down for a nap at 9 am and I
checked on him every 5 minutes.” When she found him in respiratory
distress, she called 911. According to Dr. Colaizzo’s testimony, it is
difficult to estimate the time of death in a ba b y utilizing body
temperature measurement because children lose heat more quickly than
adults. He opined, though, that the baby died within hours of the
emergency response.
Elizabeth Rodon, a crime scene investigator, testified that she looked
for infant foodstuffs in the apartment and found two canisters of infant
formula, a box of cereal for babies, a refrigerated half full bottle of white
fluid, and a plastic cup with white fluid.
Maria Flores, a former receptionist for Dr. Aquino, the pediatrician
who treated the baby’s older sister, testified that there was a record of
the defendant bringing the baby’s older sister for an office visit five
months after the baby’s death.
The defendant was convicted after a jury trial of the second-degree
felony “culpable negligence” child neglect causing serious bodily injury as
a lesser included offense of aggravated manslaughter of a child. The trial
court, based o n three separate grounds for downward departure,
sentenced the defendant to eight years of probation with a condition that
she serve one year in the county jail. The defendant has already served
the jail term component.
The defendant raises the following nine arguments in this appeal:
(1) whether the trial court a b u s e d its discretion by
sustaining the State’s relevancy objections to evidence of
the defendant’s background as a Bosnian refugee;
(2) whether the trial court a b u s e d its discretion by
sustaining the State’s hearsay objections to the
defendant’s father’s testimony that: (a) the defendant was
denied Medicaid for the baby; and (b) a local clinic did not
see the baby because the defendant did not have a
Florida identification card;
(3) whether the trial court a b u s e d its discretion by
prohibiting the defendant from cross-examining Detective
5
Umphrey on the subject of the defendant’s cooperation in
giving other statements at Detective Umphrey’s request
after the statement the defendant gave at the hospital on
the day the baby died;
(4) whether the trial court abused its discretion by overruling
the defendant’s hearsay objection to statements by “the
mother” and “EMS” contained in the baby’s February 21,
2007 hospital medical records;
(5) whether the trial court abused its discretion by overruling
the defendant’s objection to Dr. Colaizzo’s opinion
testimon y about th e rate at whic h the baby’ s body
temperature would have declined after death;
(6) whether the trial court a b u s e d its discretion by
permitting: (a) Dr. Colaizzo’s testimony as to how
someone could become aware of programs and clinics in
the community that provide free medical care to infants
to prevent caloric deprivation; a n d (b) Dr. Aquino’s
receptionist’s testimony that she had not seen Dr. Aquino
turn anyone away for lack of health insurance;
(7) whether the trial court erred b y overruling the
defendant’s hearsay a n d relevancy objections to the
receptionist’s testimony that she searched Dr. Aquino’s
medical records and found a record for the baby’s older
sister, but not for the baby;
(8) whether the trial court erred by denying the defendant’s
motions for judgment of acquittal on the basis that the
evidence was insufficient to support the conviction for
“culpable negligence” child neglect causing serious bodily
injury;
(9) whether the trial court sufficiently addressed the
prosecutor’s multiple comments during closing argument
that were inflammatory and prejudicial to the defendant
a n d were unsupported by th e evidence a n d thus
harmless, or whether the comments necessitated a new
trial.
We address these arguments in turn below.
6
First, the defendant argues that the trial court abused its discretion
b y sustaining the State’s relevancy objections to evidence of the
defendant’s background as a Bosnian refugee. “The standard of review
for admissibility of evidence is abuse of discretion, limited by the rules of
evidence.” Lucas v. State, 67 So. 3d 332, 335 (Fla. 4th DCA 2011)
(citation omitted). Whether evidence falls within the statutory definition
of hearsay is a matter of law subject to de novo review. Id. Here, the
trial court was correct to sustain the State’s objection to testimony by the
defendant’s father as to background evidence of the defendant and her
family being Bosnian refugees to prove the defendant’s state of mind and
because the testimony was hearsay and not relevant. Further, some of
this testimony was heard by the jury, in any event, and any error was
therefore harmless. State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).
Second, the defendant argues that the trial court abused its discretion
by sustaining the State’s hearsay objections to the defendant’s father’s
testimony that: (1) the defendant was denied Medicaid for the baby; and
(2) the local clinic did not see the baby because the defendant did not
have a Florida identification card. Although testimony about the official
letter from DCF denying the defendant Medicaid should have been
admitted as a verbal act, not hearsay, the failure to admit it was
harmless, because the testimony throughout the trial established that
the defendant tried multiple times to obtain Medicaid for the baby, but
was unable to do so. However, the trial court properly sustained the
unresponsive objection to the defendant’s father’s Florida identification
card testimony. Defense counsel never addressed the hearsay issue; and
defense counsel never asked the defendant’s father if the clinic turned
away the defendant because she had an out-of-state identification card
rather than a Florida identification card. A correctly phrased question
from defense counsel would have elicited an admissible response.
Third, the defendant argues that the trial court abused its discretion
b y prohibiting her from cross-examining Detective Umphrey o n the
subject of the defendant’s cooperation in giving other statements at
Detective Umphrey’s request after the statement the defendant gave at
the hospital on the day the baby died. A defendant has a right to full
and complete confrontation and cross examination on issues raised by
direct examination. § 90.612(2), Fla. Stat. (2009) (“Cross-examination of
a witness is limited to the subject matter of the direct examination and
matters affecting the credibility of the witness.”). Detective Umphrey and
the defendant spoke on several additional occasions after the date of the
baby’s death. Th e attempts b y defense counsel to elicit that these
additional interactions occurred was certainly relevant and within the
scope of direct examination. The State opened the door to this line of
7
inquiry. What direction further cross-examination might have taken and
what doors that might have then opened for the State or for the court, is
unknown because the questioning never got that far, as the court
improperly sustained the State’s objection. See Boyd v. State, 910 So. 2d
167, 185 (Fla. 2005); Johnston v. State, 863 So. 2d 271, 278-79 (Fla.
2003); Steinhorst v. State, 412 So. 2d 332, 337 (Fla. 1982).
Fourth, the defendant argues that the trial court abused its discretion
by overruling the defendant’s hearsay objections to statements by “the
mother” and “EMS” contained in the child’s February 21, 2007 hospital
medical records. We agree. These were not resuscitative efforts being
made bedside on the baby at the time that Dr. Matese was collecting
medically necessary information from the defendant as to what happened
the morning the baby died and from EMS about th e baby’s body
temperature at that time. The EMS information reflected that the baby’s
temperature was 80 degrees. Dr. Matese was the attending physician at
the hospital where the baby was taken, post mortem. He testified that he
had no recollection of the particulars in the hospital medical records. He
was not the custodian of records. Dr. Matese’s entries were one of
several individuals’ entries in the baby’s hospital records that date, and
read into the record by Dr. Matese, over the defense’s proper objection.
Fifth, the defendant argues that the trial court abused its discretion
b y overruling the defendant’s objection to Dr. Colaizzo’s opinion
testimony about the rate at which the baby’s body temperature would
have declined after death. The defendant failed to preserve the issue for
appeal because her objection was untimely. However, “[c]ourts are
cautioned not to admit speculation, conjecture, or inference that cannot
be supported by sound scientific principles,” especially from an “expert”
witness. Rider v. Sandoz Pharms. Corp., 295 F.3d 1194, 1202 (11th Cir.
2002).
Dr. Colaizzo, the medical director for the child protection team, was
asked to opine on how long the baby had been dead when his body
temperature of 80 degrees was recorded. He testified that this was not
his field, but rather that of the medical examiner. Dr. Colaizzo further
stated that the research he had done pertaining to the loss of body
temperature in adults and that it is problematic because he was aware
that children lose body heat much more quickly than adults and that
this baby, having no body fat and being very wasted, would lose heat
even more quickly than other children. Despite this, Dr. Colaizzo gave
an unchallenged opinion of “hours” without further specificity.
8
Sixth, the defendant argues that the trial court abused its discretion
by permitting: (1) Dr. Colaizzo’s testimony as to how someone could
become aware of programs and clinics in the community that provide
free medical care to infants to prevent caloric deprivation; and (2) Dr.
Aquino’s receptionist’s testimony that she has not seen Dr. Aquino turn
anyone away for lack of health insurance. The trial court properly
overruled defense counsel’s speculation objection to Dr. Colaizzo’s
testimony. In his capacity as Director of the Child Protection Team and
as a doctor who works in an impoverished area of Pahokee, it is likely
that Dr. Colaizzo had firsthand knowledge of how underprivileged
individuals can become aware of places that offer free medical care.
Because his response was couched in terms of what people “could” do
rather than what they “usually do,” there is no reason to believe that Dr.
Colaizzo’s response was based on speculation, and the defendant failed
to show otherwise.
Also, the trial court properly overruled defense counsel’s hearsay and
relevancy objections to the receptionist’s testimony. The receptionist’s
statement was not hearsay because it was based on her personal
observations and not on what anyone told her. The statement was
relevant because it was necessary to rebut defense counsel’s claim
during opening statements that the defendant was turned away from Dr.
Aquino’s office for lack of health insurance.
Seventh, the defendant argues that the trial court abused its
discretion by overruling the defendant’s hearsay and relevance objections
to the receptionist’s testimony that she searched Dr. Aquino’s medical
records and found a record for the baby’s older sister, but not for the
baby. The defendant’s objections should have been sustained because:
(1) the State failed to introduce evidence that the receptionist was a
“person with knowledge” under section 90.803(6), Florida Statutes; and
(2) as the State concedes, the sister’s records are not directly relevant to
the facts of this case as the sister’s visit to Dr. Aquino occurred months
after the baby died, and that the defendant had Medicaid for the sister at
that time.
Eighth, the defendant argues that the trial court erred by denying her
motions for judgment of acquittal on the basis that the evidence was
insufficient to support the conviction for culpable negligence child
neglect causing serious bodily injury. We review this issue de novo.
Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). The properly admitted
evidence, taken in the light most favorable to the State, is sufficient to
establish culpable negligence (the only element at issue) and to refute the
defendant’ s reasonable hypothesis of innocence that she was merely
9
following the emergency room doctor’s instructions and that the baby
appeared normal and behaved normally between the emergency room
visit and his death.
Finally, the defendant argues that the State’s closing argument, which
she claims contains inflammatory and prejudicial argument, facts not in
evidence, and misstatements of the law, necessitates reversal for a new
trial. The control of comments during closing argument is within the
trial court’s discretion and an appellate court will not interfere unless an
abuse of discretion is shown. Thomas v. State, 326 So. 2d 413, 415 (Fla.
1975). Wide latitude is permitted in arguing to a jury during closing
argument. Breedlove v. State, 413 So. 2d 1, 8 (Fla. 1982). Logical
inferences may be drawn and prosecutors are allowed to advance all
legitimate arguments with the limits of their forensic talents in order to
effectuate their enforcement of the criminal laws. Spencer v. State, 133
So. 2d 729, 731 (Fla. 1961). A prosecutor is generally allowed a
considerable degree of latitude in closing argument. Crump v. State, 622
So. 2d 963, 972 (Fla. 1993).
“A criminal trial is a neutral arena wherein both sides place evidence
for the jury’s consideration; the role of counsel in closing argument is to
assist the jury in analyzing that evidence, not to obscure the jury’s view
with personal opinion, emotion, and nonrecord evidence.” Fenster v.
State, 944 So. 2d 477, 480 (Fla. 4th DCA 2006) (citation and alteration
omitted) (improper comments by prosecutor during closing argument of
attempted murder trial to rebut defendant’s claim of self-defense, which
were unsupported by th e evidence, were not harmless; trial was no
longer a neutral arena considering the number of improper comments,
a n d curative instructions were insufficient).
Improper appeal to
sympathy in prosecutor’s closing argument is improper. Id. “In order to
require a new trial based on improper prosecutorial comments, the
prosecutor’s comments must either deprive the defendant of a fair and
impartial trial, materially contribute to the conviction, be so harmful or
fundamentally tainted as to require a new trial, or be so inflammatory
that they might have influenced the jury to reach a more severe verdict
than that it would have otherwise.” Id. at 479 (citation omitted).
The defendant presents a litany of allegedly erroneous prosecutorial
comments for this court’s review. Some are preserved, whereas some are
not. Some that are erroneous would be harmless were it not for the
number and type of other improper prosecutorial comments and the
insufficient manner in which the trial court, in some instances,
responded to them.
10
For example, despite the egregiousness of the unsupportable
inference that the separation of the defendant from the baby’s father
caused the defendant to disconnect and ignore their baby may have been
harmless b y itself, as the jury apparently ignored the State’s
“indifference” argument b y acquitting the defendant of aggravated
manslaughter, this impropriety did not stand alone.
When raising the defendant’s alleged failure to seek medical attention
for the baby after the January 2007 emergency room visit, the State
argued that free medical services in Palm Beach County are provided to
every indigent person, who cannot be turned away even if they were
“illegal” immigrants and without insurance or a Medicaid card. Although
the court sustained the defense objection to this characterization, this
highly improper, prejudicial, a n d facts-not-in-evidence description
alluding to the defendant as an “illegal immigrant” as opposed to a
“refugee,” especially after the State objected to the admissibility of any
evidence with regard to the defendant being a Bosnian refugee, is
repugnant especially given the current controversial nature of illegal
immigration in this country.
Towards the end of closing argument, the prosecutor argued that the
defendant’s apartment was so clean when EMS arrived because the
defendant’s family had spent the four to five hours between the time that
the baby died and the time that they called the police destroying
evidence, an uncharged criminal offense. The court sustained defense
counsel’s objection on the ground of pure speculation. Although on this
occasion, defense counsel did not contemporaneously ask for a curative
instruction or a mistrial and thus, under a strict interpretation of the
rules of preservation, this argument was unpreserved, see Companioni v.
City of Tampa, 51 So. 3d 452, 454-56 (Fla. 2010), throughout the course
of the State’s closing argument, the trial court consistently refused to
hear defense counsel at side bar, requesting instead that defense
counsel’s motion b e ma d e after closing arguments. Thus, defense
counsel’s failure to make a contemporaneous motion is somewhat
explained. Additionally, after the trial court sustained the objection to
this argument, the prosecutor literally said five more sentences before he
concluded his closing argument and defense counsel immediately
reminded the trial court about the motions that still needed to be heard.
The trial court heard those motions after instructing the jurors and
sending them back to deliberate.
On three occasions during the State’s closing argument, in addition to
overruling defense objections to facts not in evidence and denying
motions for a mistrial, the court also told the jurors to rely on their own
11
collective memory, that they were to decide what was evidence and what
was not, because “this is argument.” Where, as here, it may have been a
close call for the jury and the prosecutor improperly injected facts and
inferences that were not supported b y th e evidence o n multiple
occasions, which could only mislead a n d distract the jury from
considering the evidence it had heard, the trial court should have
affirmatively rebuked the offending prosecutor so as to impress upon the
jury the “gross impropriety of being influenced by improper arguments,”
Edwards v. State, 428 So. 2d 357, 359 (Fla. 3d DCA 1983), and
specifically instructed the jury, contemporaneously thereto, that the
comments made during closing arguments do not constitute evidence.
This was a “close call” evidentiary a n d testimonial trial with
competing experts on the cause of the baby’s death. The unpreserved
error can be considered with the preserved error in order to evaluate
whether the preserved error is harmless beyond a reasonable doubt.
Martinez v. State, 761 So. 2d 1074, 1082-83 (Fla. 2000); Ruiz v. State,
743 So. 2d 1, 7 (Fla. 1999). “While none of these comments in isolation
would have required a new trial, this court must look at the entire trial
record when considering whether the comments at issue are of such a
nature as to destroy the fairness of the proceeding.” Fenster, 944 So. 2d
at 480; see also DeFreitas v. State, 701 So. 2d 593, 596 (Fla. 4th DCA
1997). A mistrial is appropriate only when the error committed was “so
prejudicial as to vitiate the entire trial.” Wicklow v. State, 43 So. 3d 85,
87 (Fla. 4th DCA 2010). This is one of those cases.
Reversed and Remanded for a new trial.
POLEN, J., concurs.
WARNER, J., concurs specially with opinion.
WARNER, J., concurs specially.
I concur in the majority opinion. I write to address the closing
argument. I would find that the prosecutor’s closing argument was
egregious and would require a new trial even in the absence of the
evidentiary errors. In particular, on several occasions the prosecutor
made prejudicial statements without any evidentiary support or even a
plausible inference from the evidence presented. For instance, the
prosecutor suggested that the appellant was stressed by her life and by
her domineering father and that she had no future. As noted in the
majority, the prosecutor also argued without a n y support that the
separation from the baby’s father caused the appellant to disconnect and
12
ignore the baby. As well, the prosecutor hit the hot-button issue of
illegal immigrants, something sure to inflame the jury.
The prosecutor suggested that the child was unwanted and was just
another mouth to feed, which the family could not afford. That the
mother may have neglected her own child to the extent that she was
starving him to death is akin to the fundamentally erroneous closing
argument in Stephenson v. State, 31 So. 3d 847 (Fla. 3d DCA 2010),
where the prosecutor charged that the defendant had neglected her baby,
causing its death, because the child was unwanted, and commented that
the mother had contemplated having an abortion prior to the child’s
birth. While abortion was not mentioned in this case, the prosecutor
described the child from the defendant’s perspective as “one more mouth
to feed” and the family “just could not afford” to feed the child, claiming
that the defendant simply wanted to be done with this burden.
These are completely unfair and inflammatory characterizations of the
evidence and are not the only examples. Most objections were overruled,
but even if they had been sustained, I believe that some of the comments
were so inflammatory that they so “gravely impair[ed] the dispassionate
and calm consideration of the evidence and merits by the jury” that they
deprived this defendant of a fair trial. See Cordoba v. Rodriguez, 939 So.
2d 319, 322 (Fla. 4th DCA 2006). As our supreme court explained many
years ago, “[T]here are situations where the comments of the prosecutor
so deeply implant seeds of prejudice or confusion that even in the
absence of a timely objection at the trial level it becomes the
responsibility of this court to point out the error and if necessary reverse
the conviction.” Pait v. State, 112 So. 2d 380, 384 (Fla. 1959). For me,
this is one of those cases.
*
*
*
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jeffrey J. Colbath, Judge; L.T. Case No.
2007CF016903AMB.
Carey Haughwout, Public Defender, and Margaret Good-Earnest,
Assistant Public Defender, West Palm Beach, for appellant.
Pamela J o Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.
13
