GARY LAMAR WINTERS, A/K/A GARY COLLIER WALLACE, A/K/A WALLACE G. COLLIER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gary Winters appealed his conviction for sexual battery while using a deadly weapon, arguing prosecutorial misconduct regarding comments on his silence, improper closing arguments, and improper exclusion of evidence of the victim's prior sexual activity. The Fifth District Court of Appeal affirmed the conviction, finding no reversible error.
The court found no improper comments on the defendant's right to remain silent when examining the entire context of the questioning; prosecutorial remarks in closing argument were not fundamentally inflammatory; and evidence of isolated instances of prior sexual activity did not meet the statutory requirement of showing a pattern of conduct or behavior and was properly excluded.
[1] A prosecutor's questions are not improper comments on a defendant's right to remain silent when viewed in the entire context of the questioning.
[2] To preserve an issue for appeal, an objection must be sufficiently specific to apprise the trial judge of the alleged error and allow for intelligent appellate review.
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes the requirement that trial objections must be specific and clearly identify the basis of error for proper appellate review
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Join FLexlaw to unlock all legal intelligenceWinters was convicted by jury of sexual battery while using a deadly weapon. During trial, Winters took the stand in his own defense and was questione…
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ORFINGER, Chief Judge.
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 evidence of some specific consensual sexual activities between the victim and other persons, but this does not meet the test of the statute. The few isolated instances presented did not present a “pattern of conduct or behavior,” see Hodges v. State, 386 So. 2d 888 (Fla. 1st DCA 1980), and the trial court properly excluded that evidence.
We have considered appellant’s remaining issues and found them without merit.
AFFIRMED.
FRANK D. UPCHURCH, Jr., and CO-WART, JJ., concur. . § 794.022(2), Fla.Stat. (1981):
Specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in prosecutions under § 794.-011; however, when consent by the victim is at issue, such evidence may be admitted if it is first established to the court outside the presence of the jury that such activity shows such a relation to the conduct involved in the case that it tends to establish a pattern of conduct or behavior on the part of the victim which is relevant to the issue of consent.
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Etavius Carlyle v. State, 945 So. 2d 540 (Fla. 2d DCA 2006)…t the sexual encounter which he had with the victim was in connection with an act of prostitution.” Robinson, 575 So. 2d at 702. However, “[t]he few isolated instances presented did not present a ‘pattern of conduct or behavior.’ ” Winters v. State, 425 So. 2d 203, 204 (Fla. 5th DCA 1983) (quoting Hodges v. State, 386 So. 2d 888, 889 (Fla. 1st DCA 1980)). The victim’s “pattern must be so distinctive and so closely resemble the defendant’s version of the encounter that it tends to prove that the complainant co…
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Vergara v. State, 486 So. 2d 14 (Fla. 3d DCA 1986)…elow and thus the alleged error has not been preserved for appellate review. See Ferguson v. State, 417 So. 2d 639, 641 (Fla.1982); Castor v. State, 365 So. 2d 701, 703 (Fla.1978); Clark v. State, 363 So. 2d 331, 333-35 (Fla.1978); Winters v. State, 425 So. 2d 203, 204 (Fla. 5th DCA 1983). Third, the ineffective assistance of counsel claim based on one lawyer representing all three defendants in this case must be rejected on this record because the defendants individually waived their right to be represente…
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Wichael v. State, 567 So. 2d 549 (Fla. 5th DCA 1990)…k the issue of proper proof of the prior convictions has been preserved for appeal. Bohannon v. State, 546 So. 2d 1081 (Fla. 3d DCA 1989), rev. denied, 557 So. 2d 35 (Fla.1990); Anderson v. State, 546 So. 2d 65 (Fla. 5th DCA 1989); Winters v. State, 425 So. 2d 203 (Fla. 5th DCA 1983). The sentencing guidelines forbid any scoring as “prior record” for convictions for crimes committed after the offense for which a defendant is being sentenced. Fla. R.Crim.P. 3.701.d.5. The guidelines also forbid using criminal…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- Hufham v. State, 400 So. 2d 133 (Fla. 5th DCA 1981)
- Gosney v. State, 382 So. 2d 838 (Fla. 5th DCA 1980)
- Hodges v. State, 386 So. 2d 888 (Fla. 1st DCA 1980)