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Bush v. State3/6/2002
ffect of all the prosecutor's errors must be of such a prejudicial magnitude that the defendant was denied a fair trial. Nowitzke v. State, 572 So. 2d 1346, 1350 (Fla. 1990); Barnes v. State, 743 So. 2d 1105, 1108 (Fla. 4th DCA 1999). Here, the State's errors were not of such a prejudicial magnitude that Bush was denied a fair trial. The prosecutor's character reference was obviously designed to suggest that the jury not guess at Bush's motives for abusing her child. When this argument was made, Bush's counsel himself thought so little of any possible sinister meaning that he did not move for a mistrial. In response to three of the alleged improper burden-shifting comments, the trial court provided curative instruction in an abundance of caution. The remaining comment was a valid response to Bush's comments during opening statements. Finding no fundamental error, we are unable to agree that a new trial is warranted.
Bush next argues that she is entitled to a new trial as a result of two prosecutorial remarks during its opening statement. The purpose of opening statements is to outline what an attorney expects the evidence will establish, and control of opening statements is within the trial court's discretion. Occhicone v. State, 570 So. 2d 902, 904 (Fla. 1990). The prosecutor's first comment was a proper outline of what the prosecutor expected to establish by the evidence. At trial, Dr. Wright testified that he was consulted by HRS to evaluate whether this was a case of child abuse and concluded that most of Jennifer's medical problems were the result of chronic fabricated illness.
The prosecutor's second comment, that Dr. Deleo fired Bush from his employment, was not a proper outline of what the prosecutor expected to establish by the evidence, however. The evidence at trial showed only that Bush ceased working for Dr. Deleo in 1993 and not that Bush was fired by Dr. Deleo. Thus, the trial court properly sustained Bush's objection to the comment. See, e.g., Rivera v. State, 745 So. 2d 343 (Fla. 4th DCA 1999) (testimony that defendant was discharged from the army for sexual harassment was improper collateral crimes evidence).
The court also properly exercised its discretion in denying Bush's motion for mistrial. A mistrial should be granted only when an error during trial is "so prejudicial and fundamental that the expenditure of further time and expense would be wasteful if not futile." Ferguson v. State, 417 So. 2d 639, 641 (Fla. 1982). The prosecutor's remark did not rise to that level. Whether Bush was fired from Dr. Deleo's employment or simply quit was not a pivotal matter in the case, which revolved around months of medical testimony. Also, the trial court sustained Bush's objection, thereby alerting the jury to disregard the comment. Moreover, before opening statements the trial court explained to the jury that what the lawyers say during opening statements is not evidence. Thus, the remark did not deprive Bush of a fair trial.
Bush also argues that a new trial is warranted because the trial court permitted the state to present a rebuttal witness to discredit a defense witness. One of the two nurses to testify in Bush's favor, Mary Blank testified that she believed Bush was a victim of hospital rumors and nurse fabrication, as she never observed any abuse of Jennifer. On cross examination, the state asked Blank whether just after she started working for Bush she contacted her supervisor and asked to not work at the Bush home anymore because Bush was abusing her child. Blank stated that event did not happen and was untrue. She left Bush's employment because she quit working for the home nursing agency. In rebuttal and over Bush's objection, the state presented the
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