JOSEPH M. BERTONE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1969-06-17
No. 68-728
Before CHARLES CARROLL, C. J., and HENDRY and SWANN, JJ.
224 So. 2d 400 Florida District Court of Appeal, Third District (1969) Positive Treatment
Cited by 39 cases

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Synopsis

Joseph Bertone was convicted of rape and appealed, claiming reversible error due to the prosecutrix's emotional outbursts during trial and the admission of medical examiner testimony regarding consistency between examination findings and the victim's account. The Third District Court of Appeal affirmed the conviction, holding that the trial judge's admonitions and jury instructions adequately protected the defendant's right to a fair trial and that the medical testimony was properly admitted.


Holding

The court affirmed the conviction on both issues. First, the trial judge's refusal to grant mistrial was not an abuse of discretion because his admonition to the witness and thorough jury instructions adequately protected the defendant's right to a fair trial. Second, the medical examiner's testimony was admissible because the defendant failed to preserve the hearsay objection at trial by properly stating that ground for objection when the evidence was offered.


Key Quotes

“It is our considered opinion that such discretion was not abused by a refusal to grant a motion for mistrial.”

The court upholds the trial judge's discretionary decision to deny mistrial despite the victim's emotional outbursts.

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Facts & Procedural History

Bertone was tried for rape. During the victim's testimony, she made three separate emotional outbursts: she volunteered that she had spent three hours…

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Opinion of the Court
HENDRY, Judge.

HENDRY, Judge.

The appellant was the defendant below, and was adjudicated guilty and sentenced for the crime of rape. By this appeal, he raises two issues, contending that reversible error was committed at trial.

*401The first of the appellant’s points on appeal urges that the court committed reversible error when it refused to grant a motion for mistrial after each of three separate outbursts, during direct examination, by the prosecutrix. The first remark complained of occurred when the victim, not in response to any question by counsel, volunteered that she had answered questions at defense counsel’s office for three hours the preceding day, and that such encounter had resulted in her hospitalization. At that point, the witness was admonished by the trial judge and instructed not to volunteer any further statements.1 Minutes later, however, she again volunteered that she had been in a deposition which resulted in her hospitalization. At this point, the trial judge again cautioned the witness not to discuss the above matters.2 Finally, during the course of cross-examination, the witness, in a moment of exasperation, made remarks indicating that she had been threatened and that she was still in great fear for her safety and the safety of her children. The court directed the jury to leave the courtroom, and heard argument of counsel directed to *402whether or not a mistrial should be granted because of the prosecutrix’ outburst. The court thereafter denied the motion for mistrial and ordered that prosecutrix be returned to the courtroom.

The record thereafter indicates a compassionate but firm admonition from the trial court to the prosecutrix, apprising her of the defendant’s right to an impartial trial, and urging her to restrain from further emotional outbursts. Thereafter, the jury was returned to the courtroom and the trial proceeded.3

It is the state’s position that the complained of remarks were not so prejudicial as to raise the absolute legal necessity of stopping the trial and discharging the jury. Kelly v. State, Fla.App., 1967, 202 So.2d 901. We agree with the state’s *403position, and observe that this area is obviously one of great latitude and discretion for the trial judge. It is our considered opinion that such discretion was not abused by a refusal to grant a motion for mistrial. See Furr v. State, 152 Fla. 233, 9 So.2d 801; Wirt v. Fraser, 158 Fla. 777, 30 So.2d 174. We note in passing that the cases relied on most heavily by the appellant are primarily concerned with voluntary remarks made by a police or investigatory officer working on the criminal case which was being tried. See Nalls v. United States, (5th C.A. 1957) 240 F.2d 707; Perecinsky v. Commonwealth, Ky., 1960, 340 S.W.2d 233; People v. Trinchillo, N.Y., 1956, 2 A.D.2d 146, 153 N.Y.S.2d 685. In the situation sub judice, however, we do not feel that the same principles would control regarding the testimony being elicited from the victim of a brutal and heinous sex crime. Within his area of discretion, the trial judge is certainly allowed to recognize the emotional impact that a trial, complete with its probing revelation of the facts of the crime, would have on the prosecutrix. In conclusion then, we hold that the trial judge’s admonition to the prosecutrix and thorough instructions to the jury were adequate to protect the appellant’s interest in a fair trial. •

As second grounds for reversal, the appellant contends that the court erred in permitting the county medical examiner to testify, over objection, that in his opinion, his findings from the examination of the victim were consistent with the medical history and details of the assault as related by her. On direct examination, Dr. Brodsky, the deputy medical examiner for Dade County, stated that the findings he made during his examination of the prose-cutrix were consistent within reasonable medical probability with violent, forceable sexual intercourse. Thereafter, during redirect examination of Dr. Brodsky, he was asked, based upon the history related by the prosecutrix and the results of his examination, supra, whether he had an opinion within reasonable medical probability that the results of his examination were consistent with the history received from the prosecutrix. Defense counsel objected in these words: “Objection. This is repetitious. He had previously stated that they were so consistent, your Honor.” The objection was overruled and the witness was permitted to testify that the examination was consistent with the history as related by the subject.

By this appeal, the appellant now contends that the witness was improperly allowed to testify, in his capacity as medical examiner, in regard to the relationship between his findings on examination and the history as given by the patient. Marshall v. Papineau, Fla.App., 1961, 132 So.2d 786. See also Troj v. Smith, Fla.App., 1967, 199 So.2d 285. The objection to such testimony is that it is essentially hearsay, being based upon information as related by the patient to the medical examiner. However, the general rule is that the grounds relied upon for objection at trial must be the same as those relied upon during appeal. Stated another way, 2 Fla. Jur. Appeals § 86 says in pertinent part:

“The proper method of preserving errors relating to the admissibility of evidence is to object when the evidence is offered to the trial court. If a proper objection is not interposed at the time the evidence is admitted by the court, the appellant will be regarded as having waived his objection * * * [Tjhese principles apply to the objection as well as the admission of evidence.”

See also Shea v. State, Fla.App., 1964, 167 So.2d 767. Therefore, we conclude that the trial court did not commit reversible error In permitting the deputy medical examiner to state that his findings were consistent with the history as related to him at the time of the examination by the victim.

The state has cross-appealed another point relating to similar factual evidence which was excluded by the trial court; *404however, in view of our holding, we deem it unnecessary to consider this cross-appeal.

Thus, for the foregoing reasons, the judgment and sentence being appealed are hereby affirmed.

Affirmed.


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Citator

Cited By (20 total)

  • State v. Barber, 301 So. 2d 7 (Fla. 1974)
    …review of only those questions which were before the trial court and upon which a ruling adverse' to the appealing party was made. Haverty v. State, 258 So. 2d 18 (Fla.App.2d 1972); Yost v. State, 243 So. 2d 469 (Fla.App.3d 1971); Bertone v. State, 224 So. 2d 400 (Fla.App.3d 1969). Nor may any comfort be found in that portion of F.A.R. 6.16(a) which states: “The court may also in its discretion, if it deems the interests of justice to require, review any other things said or done in the cause which appear i…
  • Yost v. State, 243 So. 2d 469 (Fla. 3d DCA 1971)
    …constitutional rights. We have considered the entire record, and have concluded that this point was not presented to the trial court. We have further concluded that the point is not properly before us on appeal. See Bertone v. State, Fla.App.1969, 224 So. 2d 400. During the course of his argument on defendant’s second point, the defendant also asserts a violation by the State of Rule 1.140(n) CrPR, 33 F.S.A., for failure, upon request, to disclose in the bill of particulars a summary of any oral statements…
  • Reis v. State, 248 So. 2d 666 (Fla. 3d DCA 1971)
    …ounts of drugs” seized as a result of her illegal arrest and the subsequent search and seizure. Generally, the grounds relied upon during an appeal must be the same as those relied upon for objection at trial. Bertone [*670] y. State, Fla.App.1969, 224 So. 2d 400; Shea v. State, Fla.App.1964, 167 So. 2d 767; and 2 Fla.Jur. Appeals § 86. Since a different ground is argued on appeal than the one relied upon at trial we hold that Reis has not shown that reversible error was made in the denial of her motion for…

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