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Louisy v. State
BERNARD LOUISY,
Appellant, v. STATE OF FLORIDA, Appellee.
CASE No. 94-3714.
COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT
667 So. 2d 972; 1996 Fla. App. LEXIS 1044; 21
Fla. L. Weekly D 437
February 14, 1996, Filed
SUBSEQUENT HISTORY:
[**1] Released for Publication March 1, 1996.
PRIOR HISTORY: Appeal
from the Circuit Court for Palm Beach County;
Richard B. Burk, Judge. L.T.CASE NO. 94-001720CF
A02.
CASE SUMMARY
PROCEDURAL POSTURE:
Appellant sought review of a Circuit Court for
Palm Beach County (Florida) decision that convicted
him, after a jury trial, of various sex crimes
involving a child after denying his request
to reopen his case so that he could retake the
witness stand to present testimony that was
allegedly crucial to his defense that his counsel
had forgotten to inquire about during his initial
examination.
OVERVIEW: Appellant challenged
a trial court decision that convicted him, after
a jury trial, of various sex crimes involving
a child after denying his request to reopen
his case and retake the witness stand to present
allegedly crucial evidence that his counsel
forget to inquire about during his initial examination.
The appellate court reversed the decision of
the trial court and remanded for a new trial.
The trial court abused its discretion by denying
appellant's request to reopen his case and denied
appellant a fair trial. The proffered testimony
would have provided the jury with an alternative
reason for the victim's vaginal injuries. The
trial court also erred by not giving lesser-included
offense jury instructions that were supported
by the evidence.
OUTCOME: The appellate
court reversed a trial court decision that convicted
appellant, after a jury trial, of various sex
crimes involving a child and remanded for a
new trial. The trial court abused its discretion
by denying appellant's request to present testimony
his counsel forgot to inquire about during his
initial examination and that was allegedly crucial
to his defense because such evidence provided
an alternative source for the victim's injuries.
COUNSEL: Peter Grable,
P.A. of Peter Grable Law Office, West Palm Beach,
for appellant.
Robert A. Butterworth, Attorney General, Tallahassee,
and Patricia A. Ash, Assistant Attorney General,
West Palm Beach, for appellee.
JUDGES: STEVENSON,
J., GLICKSTEIN and PARIENTE, JJ., concur.
OPINIONBY: STEVENSON
OPINION:
[*973] STEVENSON, J.
Appellant, Bernard Louisy, appeals his convictions
for various sex crimes involving a child. We
reverse because we agree with appellant that
the trial court abused its discretion in denying
appellant's request to re-open his case so that
he could re-take the witness stand to present
testimony crucial to his defense.
The proffered testimony, if believed by the
jury, would have provided an alternative reason
for the victim's vaginal injuries. n1 Other
than the physical evidence of the injuries,
the case was essentially a matter of credibility
between the defendant and the victim. The proffered
testimony was not elicited when appellant first
testified because trial counsel became "distracted"
[**2] and "forgot" to make the necessary
inquiry. Although the state had rested, the
jury had not been charged and no closing argument
had been made. Thus, the case was not "technically
closed." State
v. Ellis, 491 So. 2d 1296 (Fla. 3d DCA 1986).
Footnotes
n1 Because of the appalling nature of the
proffered testimony combined with the fact that
the victim is a child, we decline to recount
the evidence here.
End Footnotes
While we fully appreciate the
trial judge's frustration with "forgetful"
trial counsel, without the opportunity to present
the testimony requested, appellant was denied
a fair trial through no fault of his own.
Although the decision to allow a case to
be reopened involves sound judicial discretion
not usually interfered with on the appellate
level, Burk
v. State, 497 So. 2d 731, 733 (Fla. 2d DCA
1986), a denial will be reversed where
the request is timely made and the jury will
be deprived of evidence [*974] which might
have had a significant impact upon the issues
to be resolved.
Delgado
v. State [**3] , 573 So. 2d 83, 86 (Fla. 2d
DCA 1990) (citing State
v. Ellis, 491 So. 2d 1296 (Fla. 3d DCA 1986);
Barry
v. Walker, 103 Fla. 533, 137 So. 711, 716 (Fla.
1931); and Steffanos
v. State, 80 Fla. 309, 86 So. 204, 205-206 (Fla.
1920).
For the purpose of avoiding error on re-trial,
we note that the trial court should have instructed
the jury on the lesser included offenses of
lewd assault, battery and assault which the
defense requested. Although the state's evidence
was strong that appellant's conduct involved
familial or custodial authority, a jury may
have determined that at the time and under the
circumstances of the charged incident, appellant
was not in a position of custodial authority,
thus making some of the requested lesser included
offenses applicable. "Even if the weight
of the evidence is overwhelmingly in favor of
the state's charge, the defendant is entitled
to an instruction on a lesser offense as to
which there is any evidence." Kolaric
v. State, 616 So. 2d 117, 119 (Fla. 2d DCA 1993).
Accordingly, we reverse appellant's convictions
on two counts of sexual activities with a child
and vacate the sentences. We remand for a new
trial.
GLICKSTEIN and [**4] PARIENTE, JJ., concur.
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