SEE FRAVEL
v.
HAUGHEY
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Lennon appealed his stalking conviction, claiming the trial judge erred by excluding evidence (a tracking device's box and instruction manual) and that the prosecutor made prejudicial closing arguments. The appellate court affirmed the conviction, finding the defendant waived his objection to the prosecutor's comments and any error in excluding the evidence was harmless.
The court affirmed the conviction. The exclusion of the box and instruction manual was harmless error because Lennon testified without objection about purchasing and installing the device and extensively explained the difference between passive and active devices. The prosecutor's comments did not rise to the level of fundamental error, and the defendant waived the issue by failing to make a contemporaneous objection and motion for mistrial.
[1] A defendant waives the right to assert prosecutorial misconduct as error on appeal by failing to make a contemporaneous objection and motion for mistrial during trial.
[2] Prosecutorial comments made during closing arguments that are not so improper or inflammatory as to rise to the level of fundamental error will not be grounds for reversa…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“By failing to make a contemporaneous objection and motion for mistrial, appellant has waived his right to assert as error that the prosecutor made prejudicial arguments in his closing argument to the jury.”
Establishes that the defendant forfeited the claim of prosecutorial misconduct by failing to timely object and request mistrial.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLennon was convicted of stalking his ex-wife. A tracking device was found underneath the ex-wife's car. Lennon installed the device and claimed it was…
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Appeal from the County Court of Orange County, Florida
Honorable Jerry L. Brewer, County Judge
Terrance Kehoe, Esquire, for Appellant
Christina J. Paterson, Assistant State Attorney For Appellee
Before Powell, MacKinnon, and J. Adams, J. J.
FINAL ORDER AFFIRMING LOWER COURT
Lennon appeals from a conviction for the crime of stalking his ex-wife, contending that the trial judge erred by excluding certain evidence, and that the prosecutor made prejudicial
comments in his closing argument. We dispense with oral argument pursuant to Florida Rule of Appellate Procedure 9.320. After careful consideration of the briefs filed by counsel, the record on appeal and the transcript of the trial proceedings, we affirm.
By failing to make a contemporaneous objection and motion for mistrial, appellant has waived his right to assert as error that the prosecutor made prejudicial arguments in his closing argument to the jury. Further, we conclude that the comments were not so improper or inflammatory as to rise to the level of fundamental error. See Fravel v. Haughey, 727 So. 2d 1033 (Fla. 5th DCA 1999) (citing cases).
The trial judge granted the prosecutor’s in-trial motion in limine to exclude as evidence the box and instruction manual which came with the tracking device found underneath appellant’s ex-wife’s car. Counsel argued in opposition to the motion that he planned to mark these items as demonstrative exhibits to show that the device was a “passive” and not an “active” one. He made no other proffer then (and makes none here) as to what more these items would prove. Appellant then took the stand in his own defense and without objection testified he purchased and installed the device, and that it was a “passive” device. He went on to testify extensively and in detail about the difference in the two devices and how they operated. In our view, if it was error to refuse to admit the box and instruction manual in evidence, the error was harmless. It is well settled that an appellate court will not reverse a judgment in a criminal case if the error is harmless. See Carraballo v. State, 35 Fla. L. Weekly S374 (Fla. June 24, 2010) for a good case applying the above rules to a prosecutor’s closing argument.
Consequently, for the foregoing reasons, the judgment appealed from is
AFFIRMED. DONE and ORDERED this 28th day of July, 2010.
/S/
Rom W. Powell, Senior Judge
/S/ /S/
Cynthia Z. MacKinnon, Circuit Judge
John H. Adams, Sr., Circuit Judge CERTIFICATE OF SERVICE
I hereby certify that a copy hereof has been furnished to Terrance Kehoe, Esq., attorney for appellant, 18 W. Pine St., Orlando FL 82801, and to Christina J. Patterson, Assistant State Attorney, attorney for appellee, 415 N. Orange Ave., Orlando FL 32801, by mail, this 28th day of July, 2010.
_/S/_______________________________
Judicial Assistant