DANIEL M. COULLIETTE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the prosecutor's improper questioning of the defendant regarding the truthfulness of state witnesses did not constitute fundamental error, as a timely objection and curative instruction could have addressed the issue.
The defendant was convicted of lewd and lascivious molestation. During cross-examination, the prosecutor repeatedly asked the defendant whether the vi…
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PER CURIAM.
Daniel M. Coulliette appeals a conviction for lewd and lascivious molestation upon a ten-year-old boy, contending that the trial court committed fundamental error by allowing the prosecutor to ask him whether he believed the state’s witnesses were telling the truth. We affirm.
After Coulliette testified on direct that he did not molest the child, the prosecutor asked him several times on cross-examination whether the child and Coulliette’s wife had been lying or telling the truth when they provided testimony contradicting his. This was improper. See, e.g., Knowles v. State, 632 So. 2d 62 (Fla.1993); Mosley v. State, 569 So. 2d 832 (Fla. 2d DCA 1990). However, courts have reversed on this issue only in circumstances wherein defense counsel objected. The only case we have found in which a court considered whether such questioning constituted fundamental error declined to so find, and concluded instead that an objection and curative instruction may have been sufficient to avoid a mistrial. See Olson v. State, 705 So. 2d 687 (Fla. 5th DCA 1998) (citing Hunter v. State, 660 So. 2d 244 (Fla.1995)).
In the case at bar, a timely objection and instruction to the jury could have limited the prosecutor to one improper question. We cannot rule out the possibility that defense counsel may have allowed such questioning to continue as part of her trial strategy. Accordingly, Coulliette’s conviction is
AFFIRMED.
DAVIS and BENTON, JJ., and ERVIN, III, RICHARD W., Senior Judge, concur.
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Hendricks v. State, 34 So. 3d 819 (Fla. 1st DCA 2010)…r on appeal once it is clear that the strategy failed. Such an approach is the type of gamesmanship the contemporaneous objection rule was designed to prevent. See Sailor, 816 So. 2d at 184; accord Farrow, 573 So. 2d at 163; cf. Coulliette v. State, 949 So. 2d 1078, 1078 (Fla. 1st DCA 2007) (declining to find fun [*832] damental error in improper questioning of the defendant where the court could not “rule out the possibility that defense counsel may have allowed such questioning to continue as part of her tri…
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Roseline Louidor v. State, 162 So. 3d 305 (Fla. 3d DCA 2015)…ssibility that counsel’s failure to object to the admission of evidence was strategic? I recognize that some courts have utilized the “any possibility” standard in determining whether a failure to object was strategic. See e.g., Coulliette v. State, 949 So. 2d 1078 (Fla. 1st DCA 2007). As a practical matter, however, such a standard is illusory in this context, and will bar any claim of fundamental error as applied to a failure to object to inadmissible evidence. A reviewing court can almost always conceive of…
Authorities Cited
- Hunter v. State, 660 So. 2d 244 (Fla. 1995)
- Knowles v. State, 632 So. 2d 62 (Fla. 1993)
- Olson v. State, 705 So. 2d 687 (Fla. 5th DCA 1998)
- Olas Mosley v. State, 569 So. 2d 832 (Fla. 2d DCA 1990)