LUIS RAMIREZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Luis Ramirez appeals his conviction for aggravated battery after the trial court allowed him to display tattoos to the jury without establishing they existed at the time of the crime, then permitted the State to comment on this evidentiary deficiency during closing argument. The appellate court affirmed the conviction, holding that the State's argument was permissible and did not constitute improper comment on Ramirez's failure to testify.
The State's argument was not fairly susceptible of being a comment on the defendant's failure to testify or call witnesses because it was phrased in terms of an absence of testimony from the witness stand. Allowing comment on the lack of a proper predicate was a permissible remedy under the circumstances, and the defendant could not invite error at trial and then take advantage of it on appeal.
[1] A party may not invite error at trial and then seek to benefit from that error on appeal.
[2] A defendant must lay a proper predicate, through appropriate witnesses, to show that physical evidence, such as tattoos, was present at the time of the charged crime.
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Join FLexlaw to unlock all legal intelligence“It is incumbent upon the defense to make a showing, through appropriate witnesses, that the tattoos were present at the time of the crime.”
Establishes the required legal standard for introducing physical evidence of a defendant's characteristics as identification evidence
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Join FLexlaw to unlock all legal intelligenceRamirez was charged with slashing a victim with a sword. During trial, over the State's objection, the defendant displayed tattoos on his arms to the …
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PER CURIAM.
Luis Ramirez appeals his conviction for aggravated battery. We affirm.
Defendant-appellant Ramirez was charged with slashing the victim with a sword. The victim and other witnesses testified during the State’s case in chief. The defense called a witness in support of its defense of mistaken identification.
Over State objection, the defendant was allowed to show the jury the tattoos on his arms. The State had objected at sidebar that there was no proper predicate for this demonstration, because there was no evidence that the defendant had the tattoos on the date of the charged crime, and there was no mention of the tattoos in the arrest documentation.
After the defendant showed the tattoos to the jury, the trial court reconsidered and concluded that the State’s objection had been well taken. “It is incumbent upon the defense to make a showing, through appropriate witnesses, that the tattoos were present at the time of the crime.” Kulick v. State, 614 So. 2d 672, 673 (Fla. 2d DCA 1993); see also Miller v. State, 667 So. 2d 1009 (Fla. 3d DCA 1996).
Out of the presence of the jury, the court ruled that the State would be allowed to comment in closing argument regarding the absence of a predicate showing that the defendant had the tattoos on the date of the charged crime. The State pointed out that the defendant’s mother was present in the courtroom, and could lay the proper predicate if the defense so desired. The defense did not call the mother as a witness or otherwise establish the predicate.
During closing argument the State argued the absence of any evidence that the defendant had the tattoos on the day of the crime. The defense objection and motion for mistrial were denied. From his conviction, the defendant has appealed.
We conclude that the State’s argument was not fairly susceptible of being a comment on the defendant’s failure to testify, or to call witnesses. See Dufour v. State, 495 So. 2d 154, 160 (Fla.1986); see also Rodriguez v. State, 753 So. 2d 29, 39 (Fla.2000). The argument was phrased permissibly in terms of an absence of testimony from the witness stand.
Further, allowing comment on the lack of a proper predicate was a permissible remedy under the circumstances present here. Finally, “a party may not make or invite error at trial and then take advantage of the error on appeal.” Czubak v. State, 570 So. 2d 925, 928 (Fla.1990) (citations omitted).
Affirmed.
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Citator
Authorities Cited
- Rodriguez v. State, 753 So. 2d 29 (Fla. 2000)
- Czubak v. State, 570 So. 2d 925 (Fla. 1990)
- Dufour v. State, 495 So. 2d 154 (Fla. 1986)
- Kulick v. State, 614 So. 2d 672 (Fla. 2d DCA 1993)
- Miller v. State, 667 So. 2d 1009 (Fla. 3d DCA 1996)
- Gerstenberger v. State, 667 So. 2d 1009 (Fla. 2d DCA 1996)