JON HALL WYATT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1991-04-23
No. 89-1040
Before FERGUSON, LEVY and GODERICH, JJ.
578 So. 2d 811 Florida District Court of Appeal, Third District (1991) Caution
Cited by 26 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Jon Hall Wyatt was convicted of sexual battery and lewd assault on an eight-year-old child and sentenced to consecutive life sentences with 25-year minimums. He appeals challenging the exclusion of expert testimony that he does not fit the profile of a pedophile and claiming prosecutorial misconduct regarding comments on his silence. The appellate court affirms the conviction and sentences.


Holding

The trial court properly excluded the expert testimony because Florida law limits character evidence to reputation or specific instances of conduct, not character opinions. Any error regarding the state's comments about the defendant's silence was harmless because the same evidence was already before the jury through unchallenged cross-examination testimony, and the defendant failed to make timely objection to preserve the cross-examination issue for appeal.


Headnotes

[1] A trial court has broad discretion in determining the admissibility of expert testimony, and its decisions will not be disturbed on appeal absent a clear showing of error…

[2] Character evidence may not be introduced through the opinion of a psychologist when a statute limits such evidence to reputation or specific instances of conduct.

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Key Quotes

“A trial court has broad discretion in determining the range of subjects on which an expert witness may be allowed to testify and unless there is a clear showing of error, its decision will not be disturbed on appeal.”

Establishes the standard of review for admissibility of expert testimony, requiring a clear showing of abuse of discretion to overturn trial court decisions.

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Facts & Procedural History

Wyatt was charged with four counts of sexual battery and one count of lewd and lascivious assault upon an eight-year-old child (K.S.). Multiple witnes…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The defendant, Jon Hall Wyatt, appeals from a final judgment of conviction and sentence for sexual battery and lewd assault. We affirm.

The defendant was charged by information with four counts of sexual battery upon an eight year old child [hereinafter referred to as either K.S. or child] and one count of lewd and lascivious assault upon a child. Prior to trial, the court excluded the testimony of an expert witness, Dr. Syvil Marquit, a clinical psychologist, whom the defense intended to call at trial to testify that the defendant does not fit the profile of a pedophile. During trial, each witness testified that K.S. had complained that the defendant had molested him.

However,' there were differences among the stories that K.S. related to these witnesses. Dr. Jerome Poliacoff, a psychologist, testified that K.S. fits the profile of a child who has been sexually abused, that his behavior during the incident was consistent with the child abuse accommodation syndrome, and that K.S. suffers from post-traumatic stress syndrome.

The trial court dismissed one count of sexual battery at the close of the evidence and the jury found the defendant guilty of the remaining charges.

The trial court sentenced the defendant to three consecutive life sentences with minimum, mandatory twenty-five year terms for the sexual battery convictions and a concurrent five year term for the lewd assault conviction. The defendant appeals.

The defendant raises two points on appeal. First, that the trial court erred in disallowing expert testimony that the defendant does not fit the profile of a pedophile where such testimony was relevant to the evidence presented at the trial and essential to refute the state’s expert testimony that K.S. was suffering from several syndromes and, therefore, fit the profile of a child who had been sexually abused. We disagree.

A trial court has broad discretion in determining the range of subjects on which an expert witness may be allowed to testify and unless there is a clear showing of error, its decision will not be disturbed on appeal. Johnson v. State, 393 So. 2d 1069, 1072 (Fla.1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981).

A trial court also has wide discretion concerning the admissibility of evidence, and unless there is a clear showing of abuse of discretion, its ruling regarding admissibility will not be disturbed on appeal. Jent v. State, 408 So. 2d 1024, 1029 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982), modified sub nom. Preston v. State, 444 So. 2d 939 (Fla.1984).

In the instant case, we find no abuse of discretion in regards to precluding Dr. Mar-quit from testifying that the defendant does not fit the profile of a pedophile.

Additionally, section 90.405, Florida Statutes (1987), specifically limits the introduction of character evidence to reputation or specific instances of conduct. Wrobel v. State, 410 So. 2d 950 (Fla. 5th DCA), rev. denied, 419 So. 2d 1201 (Fla. 1982).

This statute does not permit evidence of character to be made by opinion. See Alvarado v. State, 521 So. 2d 180 (Fla. 3d DCA 1988).

In the instant case, the defendant sought to introduce evidence of his character through the expert opinion of a psychologist, which is not permitted by the statute. Cf. State v. Sinnott, 24 N.J. 408, 132 A. 2d 298 (1957) (court determined that based on evidence code in existence at that time evidence of good character must be made by proof of a good reputation; not by opinion evidence);1 Williams v. State, 649 S.W. 2d 693 (Tex.Ct.App.1983) (defendant not permitted to introduce testimony of psychologist that defendant did not possess character disorders usually found in child molesters because character evidence could not be introduced in form of an opinion).

For the foregoing reasons, we find that the trial court properly precluded the defendant from introducing Dr. Marquit’s testimony.

Next, the defendant contends that the trial court erred in denying the defendant’s motions for mistrial where during cross-examination the state dwelled upon the defendant’s failure to come forward prior to trial with his exculpatory testimony and where the state commented on the defendant’s purported silence during closing argument.

The defendant complains that certain questions posed to him by the state constituted an impermissible comment upon his right to remain silent. “An improper comment on defendant’s exercise of his right to remain silent is constitutional error, but it is not fundamental error.” Clark v. State, 363 So. 2d 331, 333 (Fla.1978), overruled in part on other grounds, State v. DiGuilio, 491 So. 2d 1129 (Fla.1986);2 cf. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh’g denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967); Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

Therefore, in order to preserve for appellate review an improper comment on the defendant’s right to remain silent, there must be an objection and a motion for mistrial based upon the alleged error. Simpson v. State, 418 So. 2d 984 (Fla.1982), cert. denied, 459 U.S. 1156, 103 S.Ct. 801, 74 L.Ed.2d 1004 (1983); Clark, 363 So. 2d at 331; Harris v. State, 564 So. 2d 1211 (Fla. 3d DCA 1990), rev. denied, 576 So. 2d 287 (Fla.1990).

Furthermore, any objection must be timely made during the time that the evidence is offered. Owens v. State, 349 So. 2d 197 (Fla. 1st DCA) (defendant failed to raise timely objection where he moved to strike testimony and for mistrial after state had rested), cert. dismissed, 353 So. 2d 677 (Fla.1977).

In the instant case, the defendant did not make a timely objection to the allegedly improper questions. Following the alleged improper line of questioning, the state presented two rebuttal witnesses, the defense rested its case and moved for judgment of acquittal, and the case was adjourned for the day. The following morning, the defendant moved for a mistrial based upon the alleged improper line of questioning which had taken place the day before. Accordingly, this issue was not properly preserved for appeal.

The defendant also maintains that he is entitled to a new trial based upon the comments made by the state during closing argument which referred to the defendant’s silence. While the defendant made a timely objection to the comments made by the state, the evidence contained in the comments, that the defendant had not previously told others the story he was presenting in court, was already before the jury. The same testimony was elicited previously during cross-examination without a timely objection. See Huff v. State, 495 So. 2d 145 (Fla.1986); Thomas v. State, 563 So. 2d 207 (Fla. 4th DCA 1990). Thus, any error was harmless. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986).

Affirmed.

. In 1967 the State of New Jersey adopted Rule 47 thereby allowing a trait of character to be proved by opinion as well as reputation evidence. Despite this change, evidence of the type excluded in Sinnott has been held inadmissible on other grounds. State v. Cavallo, 88 N.J. 508, 443 A. 2d 1020 (1982).

. State v. DiGuilio, 491 So. 2d 1129, 1137 (Fla.1986) held that comments on the defendant's post-arrest silence are subject to the harmless error analysis and thereby overturned the part of Clark v. State, 363 So. 2d 331 (Fla.1978) that held that any comment by the state on the defendant’s exercise of his right to remain silent was per se reversible error.


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Cited By (14 total)

  • Flanagan v. State, 586 So. 2d 1085 (Fla. 1st DCA 1991)
    …did not fit the profile of a pedophile was disallowed because the court considered that section 90.405, pertaining to the methods of proving character, did not permit evidence of character to be established by opinion testimony. See Wyatt v. State, 578 So. 2d 811 (Fla. 3d DCA 1991). . The court in Bowker — as had the Bledsoe court — held the erroneous reception of CSAAS harmless, due to the overwhelming nature of the evidence otherwise admitted. . None of the courts that permitted admission of such testimo…
  • Rigterink v. State, 66 So. 3d 866 (Fla. 2011)
    …sented his testimony with regard to Mullins’ allegedly violent nature in terms of his own opinion and generalized personal experiences, which is not a proper method to establish character or reputation evidence in Florida. See, e.g., Wyatt v. State, 578 So. 2d 811, 813 (Fla. 3d DCA 1991) (holding that section 90.405, Florida Statutes, “specifically limits the introduction of character evidence to reputation ... [and] does not permit evidence of character to be made by opinion” (citations omitted)). Thus, Far…
  • Whitton v. State, 649 So. 2d 861 (Fla. 1994)
    …ts regarding Whitton’s silence were already in evidence without objection. Thus, even if the trial court failed to sustain defense counsel’s objection, any error would have been harmless. See Huff v. State, 495 So. 2d 145 (Fla.1986); Wyatt v. State, 578 So. 2d 811 (Fla.3d DCA), review denied, 587 So. 2d 1331 (1991). But here the trial court sustained Whitton’s objection to the prosecutor’s comment and considered Whitton’s cumulative impact theory in reviewing the motion for mistrial. We agree with the trial c…

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