DERRICK MCPHEE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court affirmed the conviction, finding no merit in the defendant's four appellate issues.
[1] A challenge to a potential juror must be renewed and preserved before the jury is sworn to be reviewable on appeal.
[2] A prosecutor's isolated, improper comment during closing argument does not constitute fundamental error absent a showing of prejudice sufficient to undermine the outcome…
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of sexual activity with a minor after admitting to police he had sexual contact with the victim, though he later recanted …
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Derrick McPhee appeals from his conviction and sentence, following a jury trial, for two counts of sexual activity with a child by a person in custodial authority, and two counts of unlawful sexual activity with a minor. We affirm.
McPhee was charged with having sexual contact with a 17-year-old girl at a school for mentally challenged children while employed as a teachers’ aide at the school. McPhee admitted to police during a post-Miranda interview that he had sexual contact with the victim. He later recanted his confession, alleging that it was coerced. On appeal, the defendant raises four issues, none of which have merit.
McPhee first claims that the trial court committed fundamental error by not striking the entire jury panel, after one potential juror commented during the trial court’s voir dire that she thought the defendant looked like someone who had molested her younger sibling years earlier.1 McPhee attempts to characterize the one venire member’s passing comment as so thoroughly poisonous that the entire panel should have been stricken by the trial court. The defense, however, never objected at the time of the comment, and never moved to strike the panel once jury selection was complete.2 Having reviewed the transcript, and reading the comment in context, it is clear that the defendant was never implicated as the person who had committed the offense years earlier. Jury selection was uneventful, proceeded without any argument, and the jury was chosen and sworn without objection. We find this issue to be without merit. See Carratelli v. State, 961 So.2d 312, 318 (Fla.2007) (holding that preservation of a challenge to a potential juror requires more than one objection, and the objecting party must renew and preserve the objection before the jury is sworn); see also Trotter v. State, 576 So.2d 691, 693 (Fla.1990) (noting that these requirements exist so that “[t]he defendant cannot stand by silently while an objectionable juror is seated and then, if the verdict is adverse, obtain a new trial”); Martinez v. State, 655 So.2d 166 (Fla. 3d DCA 1995) (finding no prejudice where counsel failed to object to perceived juror bias, where record revealed no bias).
The defendant next accuses the prosecutor of misconduct when, in closing *1139argument, he once referred to the defendant as a pedophile.3 The defense did not object, and thus McPhee attempts to characterize the comment as fundamental error. Spencer v. State, 842 So.2d 52 (Fla.2008) (holding that in order for an error to be fundamental and justify reversal in the absence of a timely objection, the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error). The prosecutor made the comment following a review of the facts, which set forth the defendant’s sexual encounter with the young mentally-handicapped girl. The prosecutor only used the word once.4 The defendant has not shown that the one, isolated comment resulted in prejudice sufficient to undermine the outcome of the case. We conclude that it is not fundamental error.
McPhee next asserts that the trial court erred by disallowing evidence of the victim’s prior false accusations of sexual abuse. The defense sought to introduce this evidence to show the victim’s prior sexual knowledge. The trial court properly disallowed the evidence. Section 90.405(2), Florida Statutes (2008), provides that, “[w]hen character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may be made of specific instances of that person’s conduct.” Here, the victim’s character was not an essential element of the defense or charge. See Pantoja v. State, 59 So.3d 1092, 1097 (Fla.2011) (holding that statute governing use of criminal convictions for impeachment does not permit impeachment of a witness with evidence of a prior accusation that did not result in a criminal conviction). Because a trial judge’s ruling on the admissibility of evidence will not be disturbed absent abuse of discretion, we affirm the trial court’s decision. See id. at 1092.
Finally, the defendant claims that the trial court erred by failing to suppress his confession made on February 14, 2007. He alleges that his confession was coerced. The transcript of the interview belies that allegation. After hearing testimony from the interviewing detective and from the defendant, the trial court expressed its reasons for denying the motion to suppress, including that the defendant repeatedly acknowledged that he committed the offense, that he understood his rights, and that the statements he gave were freely and voluntarily made. The record conclusively supports the trial court’s decision to deny the defendant’s motion to suppress, and we find no abuse of discretion.
Affirmed.
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Citator
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Rodriguez v. State, 210 So. 3d 750 (Fla. 5th DCA 2017)…1072 (Fla. 5th DCA 2002). Here, the prosecutor referred to Appellant as a pedophile seven times, providing far greater potential for unfair prejudice than a single such reference might, as in the cases relied upon by the State. See McPhee v. State, 117 So. 3d 1137, 1139 (Fla. 3d DCA 2012); Hudson, 820 So. 2d at 1072. The prosecutor crossed the line again in closing by making the well-known and completely inappropriate “justice for the victim” argument, by stating: [T]he criminal justice system does not exis…
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Freddy Castellon-Lopez v. State, 230 So. 3d 518 (Fla. 3d DCA 2017)…hen the prejudicial conduct in its collective import is, so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury.”) (quotation omitted); McPhee v. State, 117 So. 3d 1137, 1139 (Fla. 3d DCA 2012). The defendant next argues that the trial court abused its discretion by denying the jury’s request for a read-back of the defendant’s and the victim’s trial testimony. However, this is not actually what occurred. The jury…
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Murphy v. State, 317 So. 3d 1255 (Fla. 3d DCA 2021)…f a false prior accusation constitutes a general attack on credibility, the court found where such evidence has minimal probative value, it may be excluded without running afoul of the Confrontation Clause. Id. More recently, in McPhee v. State, 117 So. 3d 1137 (Fla. 3d DCA 2012), our court considered whether the trial court erred in disallowing evidence of the alleged victim’s prior false allegations of prior sexual abuse in a sexual crime case. Citing Pantoja and section 90.405(2), Florida Statutes,…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Trotter v. State, 576 So. 2d 691 (Fla. 1990)
- Carratelli v. State, 961 So. 2d 312 (Fla. 2007)
- Dusty Ray Spencer v. State, 842 So. 2d 52 (Fla. 2003)
- Pantoja v. State, 59 So. 3d 1092 (Fla. 2011)
- Hudson v. State, 820 So. 2d 1070 (Fla. 5th DCA 2002)
- Martinez v. State, 655 So. 2d 166 (Fla. 3d DCA 1995)