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Florida Third District Court Of Appeal - Criminal Headnotes - May 3, 2017

ROQUE ESTEBAN CALAFELL V. STATE OF FLORIDA – DENIAL OF “AFTERTHOUGHT” JURY INSTRUCTION

Trial court erred in refusing defense counsel’s request for an “afterthought” defense special jury instruction on robbery charge. Robbery charge was basis for felony murder conviction so robbery conviction reversed and remanded for new trial on that charge. Sufficient evidence existed to convict defendant of premeditated first degree murder independent of felony murder conviction. Conviction and sentence for first-degree murder affirmed.

JEFF SCOTT V. STATE OF FLORIDA – TESTIMONY OF VICTIM’S SUICIDE ATTEMPT NOT UNFAIRLY PREJUDICIAL OR IRRELEVANT – EXPERT WITNESS DID NOT VOUCH FOR VICTIM’S CREDIBILITY – IMPROPER PROSECUTORIAL STATEMENTS IN CLOSING ARGUMENT NOT FUNDAMENTAL ERROR

Court affirmed convictions on three counts of sexual activity with child by person in familial or custodial authority. Issues raised on appeal not preserved, thus reviewed only for fundamental error, not abuse of discretion. Victim’s testimony that she attempted suicide as a result of defendant’s abuse is probative evidence of whether the sexual abuse occurred. Testimony by Child Protective Team counselor that she recommended the victim receive therapeutic services for her victimization did not leave jury with the clear impression that the expert believed the victim was telling the truth. While prosecutor’s objected-to statements during rebuttal closing argument were inexcusable, they did not rise to level of fundamental error. Court held that trial counsel was not ineffective for failing to object to prosecutor’s closing argument statements because record is not clear whether defense counsel had some tactical reason for not objecting.