NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
HENRY KEITH CAVALIERE, )
)
Appellant, )
)
v. ) Case No. 2D13-2452
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed July 18, 2014.
Appeal from the Circuit Court for Pinellas
County; Michael F. Andrews, Judge.
J. Andrew Crawford of J. Andrew Crawford,
P.A., St. Petersburg, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Wendy Buffington,
Assistant Attorney General, Tampa, for
Appellee.
CRENSHAW, Judge.
Henry Keith Cavaliere appeals his conviction and sentence for lewd and
lascivious molestation of a person less than sixteen years of age. He raises seven
issues on appeal; we affirm on five of them without comment. But because the trial
court erred in allowing testimony that bolstered the credibility of certain witnesses and
allowed a prejudicial video to be admitted into evidence and played at trial, we reverse
and remand for new trial.
Background
Cavaliere was charged after the alleged victim, C.S., accused him of
sexual misconduct. C.S. decided to come forward after watching a Hollywood film with
her mother and friend per her mother's direction: the film focuses on a teenager who
was sexually battered after meeting an online predator. After reporting Cavaliere's
purported conduct to the friend with whom she watched the film, C.S. then spoke with
her teacher. Detective Kolenda is a law enforcement officer who interviewed C.S. At
trial, Detective Kolenda testified to his interactions with C.S. as he learned her story;
C.S.'s teacher testified about C.S.'s revelation to her of the conduct and C.S.'s
demeanor thereafter.
Discussion
Florida's appellate courts have discussed credibility contests between
victims and defendants and the harmful effect of law enforcement bolstering a victim's
testimony. As the Third District has stated:
[T]he police detective's response served to bolster the
victim's credibility, and the admission of this testimony
constituted reversible error. If the trial court had sustained
the objection and immediately given a curative instruction,
perhaps the damage could have been mitigated, but by
overruling the objection, the jury was left with the impression
that it could properly take into account the detective's
opinion. In Perez v. State,
595 So. 2d 1096, 1097 (Fla. 3d
DCA 1992), we stated that errors committed from the
improper admission of a police officer's testimony that can
be used to bolster the credibility of a victim's trial testimony
cannot be deemed harmless. See also Rodriguez v. State,
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842 So. 2d 1053, 1054 (Fla. 3d DCA 2003) (where we stated
that "in cases such as this where the case consists of a
credibility contest between the victim and the defendant, the
error is not harmless.").
Lee v. State,
873 So. 2d 582, 583-84 (Fla. 3d DCA 2004). This court has long-
recognized similar harm as discussed in Lamb v. State: "In reversing Brown's conviction
and awarding him a new trial, we stated the police officer's testimony 'had the
immediate effect of putting a cloak of credibility upon the succeeding testimony of the
mother and the victim.' "
357 So. 2d 437, 438 (Fla. 2d DCA 1978) (quoting Brown v.
State,
344 So. 2d 641, 643 (Fla. 2d DCA 1977)).
Although the prohibitions on civilians vouching for a victim's credibility
have not been treated as harshly by the courts, such testimony can still be harmful
error:
It is error to admit the testimony of a witness that is
offered to vouch for the credibility of another witness. . . .
....
. . . Because the child victim's credibility was the
determinative issue at trial, trial counsel should have
objected to testimony and comments vouching for his
credibility.
Rhue v. State,
693 So. 2d 567, 568, 570 (Fla. 2d DCA 1996).
This case, like Lee, Lamb, and Rhue, turns on the credibility of the victim,
in this case, a child. "The credibility of witnesses is for the jury to decide." Rhue,
693
So. 2d at 568. In this case, Detective Kolenda and C.S.'s teacher vouched for C.S.'s
credibility, usurping the jury's role. See
id. Detective Kolenda testified to his training in
kinesics then testified that "Kinesics is basically you're a parent and you know your child
did something wrong, you could read it. You could look at him and say, 'John, you took
the cookie out of the cookie jar.' Certain movements and mannerisms—." Detective
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Kolenda then told the jury what truth qualification is: "Basically it establishes if the child
has kind of a grasp what the truth is." Most importantly, Detective Kolenda then stated
that the victim "had previously been truth qualified by the deputy. But not only that, her
age at the time was eleven and by looking at her and kind of getting a feel for her I
could tell that, you know, she was—she was acting appropriately. This wasn't a joke to
her." Defense counsel made a proper objection and moved for mistrial; the court
overruled the objection and denied the motion. The same error as in Lee was
duplicated here: a law enforcement witness vouched for a victim and the court overruled
the objection.
873 So. 2d at 583-84. Because the court did so, there was no
opportunity for counsel to request a curative instruction. There was therefore no
opportunity to mitigate the damage done. And C.S.'s teacher's testimony that C.S. "was
happy. She was smiling. Happier I should say. She seemed like a ton of bricks was,
you know, lifted off her shoulder. She was relieved. Big difference since that day that
she told me what she told me" compounded the error by further vouching for the
witness. Because the primary evidence against Cavaliere was the victim's testimony,
we cannot say that the State has proved beyond a reasonable doubt that the error was
harmless. See Geissler v. State,
90 So. 3d 941, 948 (Fla. 2d DCA 2012) (citing State v.
DiGuilio,
491 So. 2d 1129, 1138 (Fla. 1986)). Accordingly, we reverse and remand for
new trial.
We also take this opportunity to comment on an error in admitting the
video clip at trial. The State showed a several-minute clip of a Hollywood-made film to
the jury. The clip, though not explicit, showed a teenage girl interacting in an intimate
way with an older man she met online and who made sexual advances toward her; it
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can be inferred from the off-screen conduct that what occurred was a nonconsensual
sexual battery of the teenage girl. C.S. viewed this film in its entirety with her mother
and friend. It was after watching this film that C.S. first divulged the conduct giving rise
to these proceedings.
"Relevant evidence is evidence tending to prove or disprove a material
fact[; a]ll relevant evidence is admissible, except as provided by law." §§ 90.401-.402,
Fla. Stat. (2012); Wright v. State,
19 So. 3d 277, 291 (Fla. 2009) ("The prerequisite to
the admissibility of evidence is relevancy. All evidence tending to prove or disprove a
material fact is admissible, unless precluded by law."). Section 90.403, which provides
that "[r]elevant evidence is inadmissible if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless
presentation of cumulative evidence," operates as just such a preclusion. See Wright,
19 So. 3d at 291 (quoting § 90.403). The probative value of the video clip was related
to being the spark for C.S.'s revelation of Cavaliere's alleged conduct. It was adduced
in response to defense counsel's questioning C.S. whether she told her friend—while
watching the film—that the events in the movie may have happened to her when she
was younger. But C.S.'s testimony that she watched the film and that the film gave her
the idea to come forward easily would have sufficed to describe the circumstances as
C.S. saw them and to rebut the defense's assertions. But instead, the video, depicting
only the circumstances of a dissimilar predatory sexual battery, was admitted into
evidence and shown to the jury. In this case the probative value of the video was low
and the prejudice and risk of confusion of the issues was great; thus, the court erred in
allowing the admission of the video. Cf. Banks v. State,
46 So. 3d 989, 998-99 (Fla.
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2010) (holding there was no error in admission of highly probative soundless
surveillance video despite prejudice of showing a violent but short-lived crime occur);
Singleton v. State,
783 So. 2d 970, 976 (Fla. 2001) (holding there was no error in
admission of highly probative video despite prejudice of showing defendant in prison
uniform).1
In allowing prejudicial evidence in this case, the court committed harmful
error. Accordingly, we reverse and remand for new trial.
Reversed; remanded for new trial.
NORTHCUTT and KELLY, JJ., Concur.
1Although the error is particularly problematic in this case where only the
prejudicial clip was shown, the rule of completeness, see § 90.108, provides no remedy
because it is designed to alleviate the prejudice emanating from usage of an excerpt of
a recorded statement, including videos; it neither adds probative value to the evidence
nor does it reduce the harm flowing from the evidence itself.
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