final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; Steven J. Levin, Judge; L.T. Case No.
Haughwout, Public Defender, and J. Woodson Isom, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Deborah Koenig,
Assistant Attorney General, West Palm Beach, for appellee.
Fahnestock, Fabienne E., Associate Judge.
Duane Slaughter appeals his convictions and sentences for
three charges involving the lewd or lascivious molestation of
a child under the age of twelve. Appellant raises two points
on appeal. First, Appellant argues that the trial court
abused its discretion in overruling defense counsel's
objection to the prosecutor's alleged misstatement of the
law during closing argument. Second, Appellant argues that
the cumulative effect of improper prosecutorial comments made
throughout the trial gave rise to fundamental error requiring
reversal. We disagree, and affirm on both issues, but write
only to further encourage the prosecution to exercise caution
in closing argument and avoid injecting emotion and fear into
the jury's deliberations.
trial, the victim testified she was a friend of
Appellant's stepdaughter and had slept over at
Appellant's house on several occasions. The victim
explained that Appellant had touched her while she pretended
to be asleep and, on one occasion, he placed her hand on his
exposed penis. In addition to the testimony provided by the
victim, the State called two Williams Rule witnesses
who both testified that Appellant had also touched them when
they had slept over at Appellant's house.
rebuttal closing argument, the prosecutor stated:
I was watching a Smithsonian thing last night it had lions
and it said that lions attack their prey when they're
handicapped by darkness. That's what this Defendant did.
He attacked M.D., he attacked L.M., he attacked S.H. when
they were isolated in the room. He came in when they were
supposed to be sleeping and he got-did what he wanted to do
to them, touching them in a lewd or lascivious manner.
counsel did not object to this comment. The jury found
Appellant guilty of two counts of lewd or lascivious
molestation of a child under the age of twelve and one count
of the lesser included battery.
failure to object to improper prosecutorial comment will
preclude review, unless the comments were so prejudicial as
to constitute fundamental error." Pacifico v.
State, 642 So.2d 1178, 1182 (Fla. 1st DCA 1994).
"Fundamental error in closing argument is error that
reaches down into the validity of the trial itself to the
extent that the verdict of guilty could not have been
obtained without the assistance of the alleged error."
Augustine v. State, 143 So.3d 940, 941 (Fla. 4th DCA
2014) (quoting Thompson v. State, 88 So.3d 322, 324
(Fla. 4th DCA 2012)).
Florida Supreme Court has consistently cautioned against
prosecutors injecting "elements of emotion and fear into
the jury's deliberations . . . ." Urbin v.
State, 714 So.2d 411, 419 (Fla. 1998) (quoting King
v. State, 623 So.2d 486, 488 (Fla. 1993) (further
quotations omitted)); accord Victorino v. State, 127
So.3d 478, 494 (Fla. 2013); Delhall v. State, 95
So.3d 134, 169 (Fla. 2012); Carroll v. State, 815
So.2d 601, 622 (Fla. 2002). "Arguments that have no
purpose but to inflame the minds or jurors are prohibited, as
are general attacks on the defendant's character."
Petruschke v. State, 125 So.3d 274, 279 (Fla. 4th
Appellant argues that the prosecutor's attempt to
demonize and dehumanize Appellant by characterizing him as a
wild animal constitutes fundamental error. While the
prosecutor's statement indeed analogizes Appellant's
predatory actions to the predatory actions of a lion, the
analogy refers to the scenario in which the victims, or prey,
are vulnerable. Furthermore, this statement fails to inflame
into the hearts and minds of ...