SCOTT C. SACKETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Scott Sackett was convicted of aggravated battery on a pregnant woman but appeals on multiple grounds including improper voir dire, discovery violations, evidentiary errors, and prosecutorial misconduct. The appellate court found merit in several issues and reversed the conviction.
The court found merit in all five issues and reversed the conviction. The cumulative effect of the prosecutor's improper voir dire questions prejudiced Sackett; the trial court failed to conduct an adequate Richardson hearing on the discovery violation; it was error to question Sackett on cross-examination about a felony he had already disclosed on direct; the prosecutor improperly shifted the burden of proof by arguing Sackett failed to tell officers LaPoint was drunk; and Officer Rodgers was not qualified to testify that the mark was consistent with a punch.
[1] Prosecutorial questions during voir dire that imply future criminal conduct or address the general issue of domestic violence are improper.
[2] A trial court abuses its discretion by denying a motion to strike a jury panel after cumulative improper prosecutorial questions during voir dire.
Previewing 2 of 6 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“the defense is procedurally prejudiced if there is a reasonable possibility that the defendant's trial preparation or strategy would have been materially different had the violation not occurred”
Establishes the standard for prejudice in discovery violations, focusing on impact on trial preparation rather than impact on the fact finder.
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Join FLexlaw to unlock all legal intelligenceSackett was arrested after police responded to a domestic violence call at his residence. Officer Rodgers spoke to Mary LaPoint, with whom Sackett had…
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WHATLEY, Judge.
Scott Sackett appeals his conviction of aggravated battery on a woman he knew or should have known was pregnant in violation of section 784.045(l)(b), Florida Statutes (1997). We find merit in several of the numerous issues he has raised in this appeal, and we reverse.
Sackett was arrested after the Tarpon Springs Police responded to a domestic violence call. Officer Will Rodgers testi fied at trial that he arrived at Sackett’s residence two minutes after he was dispatched. He spoke to Sackett for no more than a minute before going next door and speaking to Mary LaPoint, a woman with whom Sackett has lived for approximately ten and a half years. LaPoint was visibly shaken, sobbing, and holding her right chest area as if in pain. She told him that she had come to her next-door neighbor’s and called 911 after Sackett hit her twice in the chest area during an argument. Officer Rodgers testified over objection that the red mark he observed on La-Point’s chest was consistent with someone having been punched. He also testified over objection that LaPoint told him that Sackett had told her he knew where to hit so no marks would show. Officer Rodgers was four or five feet from LaPoint as they spoke and he did not smell any alcohol on her breath. She did not slur her speech, and she was concise in what she said.
LaPoint testified at trial that Sackett knew she was pregnant at the time of the incident. Her memory was foggy because she had been intoxicated at the time of the incident, having drunk between six and twelve beers. She declined several offers by the prosecutor for' her to look at the police report of the incident, saying that her statements that evening were made while she was intoxicated. However, she was able to remember that she and Sack-ett had a loud and obnoxious argument. She felt things were escalating and she decided to get out of the house. Sackett pushed her out of the way in her chest area, trying to start a fight if she did not leave. She suffered no injuries or bruises, although she does bruise easily. She did not remember telling the police that she had been punched on the right side of her chest area.
Against the backdrop of these facts, we address the issues raised by Sackett in which we find merit.
VOIR DIRE
During voir dire, the prosecutor asked the following questions which elicited objections by defense counsel and some of which also elicited requests that the jury panel be stricken or given a curative instruction.
Do you think we need to have a real serious injury in order to be here, that we should wait for that to happen? [Defense counsel objected and his request for a curative instruction was denied.]
Do you talk to other nurses1 as well about the cycle of violence that they see? [Defense counsel’s objection was denied.]
[I]f the victim didn’t want to prosecute, and if I prove to you beyond a reasonable doubt that a crime had occurred, would you be able to follow the law and still find that person guilty, the fact that that person didn’t want to prosecute. [Defense counsel’s objection was sustained but his motion to strike the jury panel was denied.]
[I]f people become involved in domestic violence-type situations and the police become involved, and feelings change later on; how would you feel about that situation? [Defense counsel’s objection was sustained, but his motion to strike the jury panel was denied.]
The first two questions were improper because, they clearly implied to the prospective jurors that if Sackett did not strike her this time he would do so in the future and the epidemic of domestic violence must be stopped. Future acts were obviously not an issue at trial and neither was the general issue of domestic violence. Defense counsel’s objection to the third question was properly sustained. Despite the trial court’s ruling, the prosecutor ventured directly back into the same subject area by simply rephrasing the question. Thus, the trial court’s denial of defense counsel’s motion to strike the jury panel after the fourth question was an abuse of discretion. See Davis v. State, 698 So. 2d 1182 (Fla.1997). At that point, Sackett was prejudiced by the cumulative impact of the prosecutor’s improper questions.
RICHARDSON VIOLATION
Florida Rule of Criminal Procedure 3.220(b)(1)(C) requires the State to disclose to the defense, inter alia, “the substance of any oral statements made by the defendant.” Defense counsel objected to Officer Rodgers’ testimony regarding a previously undisclosed comment by La-Point to him that Sackett stated he knew how to hit her without leaving a mark. In response to defense counsel’s request for a Richardson2 hearing, the trial court noted the requirement of rule 3.220(b)(1)(C), but made no inquiries. Rather, the court allowed defense counsel to inquire of Rodgers what the statement was about and why it was not noted in the police report. These inquiries do not satisfy the requirements of a Richardson hearing. See State v. Hall, 509 So. 2d 1093, 1096 (Fla.1987) (“At a minimum the scope of this inquiry should cover such questions as whether the state’s violation was willful or inadvertent, whether the violation was trivial or substantial, and, most importantly, whether the violation affected the defendant’s ability to prepare for trial.”).
The State argues that no discovery violation occurred because there is no indication in the record that the State was ever in possession of the statement at issue. The record is silent on this point precisely because an inadequate Richardson inquiry was made. The State also argues that any error was harmless because the trial court instructed the jury to disregard Rodgers’ statement. That instruction is irrelevant because “the question of ‘prejudice’ in a discovery context is not dependent upon the potential impact of the undisclosed evidence on the fact finder but rather upon its impact on the defendant’s ability to prepare for trial....” Smith v. State, 500 So. 2d 125, 126 (Fla.1986). “[T]he defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred. Trial preparation or strategy should be considered materially different if it reasonably could have benefited the defendant.” State v. Schopp, 653 So. 2d 1016, 1020 (Fla.1995). Sackett asserts that he was prejudiced in his ability to prepare for trial because he would have filed a motion in limine to prevent Officer Rodgers from relaying the statement in his testimony before the jury. The statement was harmful to Sackett because it bolstered the officers’3 testimony that LaPoint had been hit. The bolstering of the officers’ testimony was prejudicial to Sackett in light of LaPoint’s testimony at trial that Sackett merely pushed her and that, because she had drunk between six and twelve beers that night, she did not remember telling the police she had been hit by Sackett. In light of the fact that a different trial preparation or strategy reasonably could have benefitted Sackett, we cannot consider the failure to conduct an adequate Richardson hearing harmless error. Id. See also Delgado v. State, 706 So. 2d 328 (Fla. 1st DCA 1998).
QUESTION REGARDING PRIOR FELONY
Sackett testified on direct that he had pleaded guilty to a felony and he even revealed the nature of that felony. Consequently, it was error for the State to further question Sackett about that conviction on cross-examination. See Gavins v. State, 587 So. 2d 487 (Fla. 1st DCA 1991).
STATE’S CLOSING ARGUMENT
The trial court overruled defense counsel’s objection to the prosecutor’s statement during closing argument that Sackett did not tell the officers when they arrived at his residence that LaPoint was drunk and making up allegations. This was error because the prosecutor’s statement was the equivalent of arguing to the jury that Sackett should have proclaimed his innocence to the officers. Such an argument improperly shifts the burden of proof. See Jackson v. State, 575 So. 2d 181, 188 (Fla.1991).
LAY OPINION TESTIMONY OF OFFICER RODGERS
The trial court overruled defense counsel’s objection to Officer Rodgers’ testimony that the red mark he observed on LaPoint’s chest was consistent with her having been punched. This was error because the State did not establish that Officer Rodgers had the special knowledge, skill, experience, or training to render such an opinion. See Floyd v. State, 569 So. 2d 1225 (Fla.1990).
Reversed and remanded.
BLUE, A.C.J., and SCHEB, JOHN M., (Senior) Judge, Concur. . The prospective juror to whom this question was addressed was a nurse.
. Richardson v. State, 246 So. 2d 771 (Fla.1971).
. Backup Officer Gellatly also testified and his testimony was consistent with Officer Rodgers'.
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Orrick Wilson v. State, 789 So. 2d 1127 (Fla. 2d DCA 2001)…ther the undisclosed evidence might have affected the outcome of the trial. Rather, the issue is whether the discovery violation affected the defendant’s ability to prepare for trial. Smith v. State, 500 So. 2d 125, 126 (Fla.1986); Sackett v. State, 764 So. 2d 719 (Fla. 2d DCA 2000). “The defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred. Trial preparation or strategy sh…
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Lenz v. State, 245 So. 3d 795 (Fla. 4th DCA 2018)…ction claim of ineffective assistance of counsel, which related to prosecutor’s argument that defendant should have proclaimed his innocence to the police, as the argument “improperly shifted the burden of proof to the defendant”); Sackett v. State, 764 So. 2d 719, 722-23 (Fla. 2d DCA 2000) (finding trial court erred in allowing prosecutor to argue that defendant did not tell officers investigating a domestic violence accusation that his accuser was drunk and making up allegations, as “the prosecutor’s state…
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Fowler v. State, 67 So. 3d 1073 (Fla. 1st DCA 2011)…this armed robbery. And these guys, I want to tell you who they are. Did he do that? No, he didn’t.” Defendant’s claim established prima facie that the prosecutor thereby improperly shifted the burden of proof to the defendant. See Sackett v. State, 764 So. 2d 719 (Fla. 2d DCA 2000). Finally, in Issue IX, defendant claimed he was entitled to a new trial based upon newly discovered evidence consisting of a written recantation by one of the state’s key witnesses. The court observed that defendant had not atta…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Richardson v. State, 246 So. 2d 771 (Fla. 1971)
- State v. Schopp, 653 So. 2d 1016 (Fla. 1995)
- Jackson v. State, 575 So. 2d 181 (Fla. 1991)
- Floyd v. State, 569 So. 2d 1225 (Fla. 1990)
- Smith v. State, 500 So. 2d 125 (Fla. 1986)
- Davis v. State, 698 So. 2d 1182 (Fla. 1997)
- State v. Hall, 509 So. 2d 1093 (Fla. 1987)
- Lambert Keith Gavins v. State, 587 So. 2d 487 (Fla. 1st DCA 1991)
- Delgado v. State, 706 So. 2d 328 (Fla. 1st DCA 1998)