BERNARD LOUISY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bernard Louisy appeals his convictions for sex crimes involving a child. The Florida appellate court reversed his convictions because the trial court abused its discretion in denying his request to reopen his case to present crucial testimony that could have provided an alternative explanation for the victim's injuries, thereby denying him a fair trial.
The court reversed the convictions because the trial court abused its discretion in denying the reopening request. A defendant is entitled to present evidence crucial to his defense when the case is not technically closed and the proffered testimony might have significant impact on the jury's verdict. Additionally, the trial court should have instructed the jury on lesser included offenses of lewd assault, battery, and assault for which there was evidence.
[1] A trial court abuses its discretion by denying a defendant's request to re-open their case to present crucial defense testimony when the jury has not yet been charged or…
[2] A defendant is denied a fair trial when prevented from presenting testimony that could have provided an alternative explanation for physical evidence and significantly im…
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Join FLexlaw to unlock all legal intelligence“The proffered testimony, if believed by the jury, would have provided an alternative reason for the victim's vaginal injuries. Other than the physical evidence of the injuries, the case was essentially a matter of credibility between the defendant and the victim.”
Establishes that the omitted testimony was crucial and directly relevant to a key issue in a credibility-based case.
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Join FLexlaw to unlock all legal intelligenceLouisy was convicted of various sex crimes involving a child. The case hinged on physical evidence of vaginal injuries and credibility between the def…
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STEVENSON, Judge.
Appellant, Bernard Louisy, appeals his convictions for various sex crimes involving a child. We reverse because we agree with appellant that the trial court abused its discretion in denying appellant’s request to re-open his case so that he could re-take the witness stand to present testimony crucial to his defense.
The proffered testimony, if believed by the jury, would have provided an alternative reason for the victim’s vaginal injuries.1 Other than the physical evidence of the injuries, the case was essentially a matter of credibility between the defendant and the victim. The proffered testimony was not elicited when appellant first testified because trial counsel became “distracted” and “forgot” to make the necessary inquiry. Although the state had rested, the jury had not been charged and no closing argument had been made. Thus, the case was not “technically closed.” State v. Ellis, 491 So. 2d 1296 (Fla. 3d DCA 1986).
While we fully appreciate the trial judge’s frustration with “forgetful” trial counsel, without the opportunity to present the testimony requested, appellant was denied a fair trial through no fault of his own.
Although the decision to allow a case to be reopened involves sound judicial discretion not usually interfered with on the appellate level, Burk v. State, 497 So. 2d 731, 733 (Fla. 2d DCA 1986), a denial will be reversed where the request is timely made and the jury will be deprived of evidence which might have had a significant impact upon the issues to be resolved.
Delgado v. State, 573 So. 2d 83, 86 (Pla. 2d DCA 1990) (citing State v. Ellis, 491 So. 2d 1296 (Fla. 3d DCA 1986); Barry v. Walker, 103 Fla. 533, 137 So. 711, 716 (Fla.1931); and Steffanos v. State, 80 Fla. 309, 86 So. 204, 205-206 (Fla.1920)).
For the purpose of avoiding error on re-trial, we note that the trial court should have instructed the jury on the lesser included offenses of lewd assault, battery and assault which the defense requested. Although the state’s evidence was strong that appellant’s conduct involved familial or custodial authority, a jury may have determined that at the time and under the circumstances of the charged incident, appellant was not in a position of custodial authority, thus making some of the requested lesser included offenses applicable. “Even if the weight of the evidence is overwhelmingly in favor of the state’s charge, the defendant is entitled to an instruction on a lesser offense as to which there is any evidence.” Kolaric v. State, 616 So. 2d 117, 119 (Fla. 2d DCA 1993).
Accordingly, we reverse appellant’s convictions on two counts of sexual activities with a child and vacate the sentences. We remand for a new trial.
GLICKSTEIN and PARIENTE, JJ„ concur. . Because of the appalling nature of the proffered testimony combined with the fact that the victim is a child, we decline to recount the evidence here.
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Vazquez v. State, 700 So. 2d 5 (Fla. 4th DCA 1997)…ed the detective as his own' witness, and thereby offered the tapes into evidence. He did not do so because he did not wish to assert a defense and thus lose the right to open and close final argument. See Fla. R.Crim. P. 3.250. In Louisy v. State, 667 So. 2d 972 (Fla. 4th DCA 1996), we reversed a trial court’s refusal to reopen the defense to present crucial evidence, saying that: “Although the decision to allow a case to be reopened involves sound judicial discretion not usually interfered with on the app…
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Knight v. State, 919 So. 2d 628 (Fla. 3d DCA 2006)…re-trial line-up identification. The trial court refused defense counsel’s request. A trial court’s decision not to allow re-cross-examination is reviewed for abuse of discretion. Hurst v. State, 825 So. 2d 517 (Fla. 4th DCA 2002); Louisy v. State, 667 So. 2d 972 (Fla. 4th DCA 1996). We find that the trial court did not abuse its discretion in disallowing defense counsel from re-crossing Ceocarelli. Defense counsel opened the door to the line-up issue during cross-examination and no new issues were raised on…
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Register v. State, 718 So. 2d 350 (Fla. 5th DCA 1998)…eview of the cases wherein an appellate court has reversed the denial of a defendant’s motion to reopen his case reveals that the reasons supporting the defendants’ motions were both reasonable and clearly set forth. For example, in Louisy v. State, 667 So. 2d 972, 973 (Fla. 4th DCA 1996), the defendant sought to reopen his case because defense counsel had failed to elicit certain “crucial” questions when the defendant was first called to testify. In Delgado v. State, 573 So. 2d at 86, the defendant asked to…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Holmes v. The Atl. Nat'l Bank of Jacksonville, 103 Fla. 1071 (Fla. 1932)
- Barry v. Walker, 103 Fla. 533 (Fla. 1931)
- Steffanos v. State, 80 Fla. 309 (Fla. 1920)
- Delgado v. State, 573 So. 2d 83 (Fla. 2d DCA 1990)
- Burk v. State, 497 So. 2d 731 (Fla. 2d DCA 1986)
- A.P. v. State, 491 So. 2d 1296 (Fla. 3d DCA 1986)
- State v. Ellis, 491 So. 2d 1296 (Fla. 3d DCA 1986)
- Kolaric v. State, 616 So. 2d 117 (Fla. 2d DCA 1993)