“Boogeyman” Can’t Get New Trial for Florida Prosecutor’s Inappropriate Name Calling

There are a number of procedural safeguards built into Florida laws that are designed to ensure that a person charged with a crime gets a fair trial without any preconceived notion of guilt. Those safeguards are particularly important in Florida sex crime cases, which often carry a certain stigma based on the allegations involved. Sometimes when those rules are broken, however, it may still not be enough to justify a new trial. Just look at a recent case out of Florida’s First District Court of Appeal.

gavelA defendant was charged with lewd and lascivious molestation of a person, stemming from an alleged incident involving a friend of his young daughter. The 11-year-old girl was staying at the defendant’s home one night when he allegedly entered the room in which she was sleeping and “rubbed the victim’s genital region,” according to the court. In an opening statement at trial, a state prosecutor referred to the defendant as a “boogeyman.” During trial, the prosecution also introduced evidence testimony about what the victim said happened. He was eventually convicted.

The defendant later appealed the conviction, asserting that the trial judge made a number of errors. He argued, for instance, that the judge should have granted a new trial after the prosecutor called the defendant a “boogeyman” during the opening statement. The First District noted, however, that his lawyer objected to the characterization and that the trial judge sustained that objection. Although the prosecutor’s comment was inappropriate, the appeals court said it wasn’t enough to justify a new trial. The court pointed to a 2017 decision in a different case, in which it found that a prosecutor’s reference to a defendant as a “creature that stalked the night” did not warrant a new trial.

The defendant also argued that the court should not have allowed the prosecutors to introduce hearsay evidence from others who were told by the victim what the defendant allegedly did to her. Florida law generally bans one person from testifying about what another person said outside court, if it’s being used to prove that what the person said is true. There are a number of exceptions to this general rule, however, including for out-of-court statements by a child victim. State law allows those hearsay statements to be introduced as evidence when the child testifies or is unavailable as a witness, and the court finds that the circumstances and content of the statement “provide sufficient safeguards of reliability.” In this case, the Court said the trial judge properly allowed the evidence to be considered.

As a result, the First District affirmed the defendant’s conviction.

If you or a loved one has been charged with lewd and lascivious molestation in Florida, it is essential that you seek the advice and counsel of an experienced lawyer. Clearwater sex crime attorney Will Hanlon is a seasoned lawyer who fights aggressively on behalf of clients charged with a wide range of offenses. Call our offices at (727) 897-5413 or contact us online to speak with Mr. Hanlon about your case.

More blog posts:

Double Jeopardy in Florida Sex Crime Cases

Proving Intent in Florida Sex Crime Cases

Constructive Possession in Florida Child Pornography Cases