An appeals court has ruled that an Orange County sex crimes prosecutor was so far out of bounds in what he told jurors about a defendant that the trial violated the man’s constitutional rights.
The Fifth District Court of Appeal overturned the conviction of Marco Antonio Rodriguez, 42, of Apopka.
It also referred the case to the Florida Bar for possible disciplinary action against Assistant State Attorney David Fear.
“The flood of improper prosecutorial comments in closing argument in this case was deep, wide, and unrelenting; it made a mockery of the constitutional guarantee of a fair trial for the Appellant [Rodriguez],” the court wrote in an opinion released Friday.
Fear, a five-year veteran of the Orange-Osceola State Attorney’s Office, did not respond to a request for comment.
In a prepared statement, Eryka Washington, a spokeswoman for State Attorney Aramis Ayala, wrote, “We respect the opinion of the 5th DCA and we take these issues seriously. Mr. Fear’s emotions during a closing argument involving the sexual abuse of a child led to some inappropriate and overzealous statements. Mr. Fear has been a dedicated and passionate prosecutor. We are confident he has learned from this experience.”
Ayala took office in January, more than a year after Rodriguez’s trial.
It is a mistake for an attorney to have an attitude of “winning at all costs,” the court wrote.
Specifically the court criticized Fear because he repeatedly said Rodriguez admitted to engaging in several inappropriate sexual activities with the child when, in fact, he had repeatedly denied them.
Fear also called Rodriguez a pedophile seven times. That kind of name calling, the court wrote, is unacceptable.
Rodriguez had no prior arrests, according to the Florida Department of Law Enforcement.
Rodriguez was convicted of sexually molesting a 5-year-old girl. On July 31, 2015, an Orange County jury found him guilty of two counts of lewd and lascivious molestation but not guilty of one count. Before the case went to the jury Circuit Judge Keith Carsten threw out a fourth count.
The judge later sentenced him to 18 years in state prison.
Rodriguez told Orange County deputies that the child was sexually precocious and “ she had … this thing for my genitalia,” according to court records.
“The jury may have reached the proper verdict, given the evidence in this case,” the appeals court wrote. “However, there is no doubt that Appellant [Rodriguez] was denied a fair trial due to egregious prosecutorial misconduct.”
Now, the court wrote, the victim will once again have to take the witness stand and recount what happened.
The opinion was written by Judge James A. Edwards, and Judge Richard B. Orfinger concurred.
Judge William D. Palmer wrote a brief dissent. Fear’s comments were improper, he wrote, but not so far out of line as to require a retrial.
Fear is no longer a sex crimes prosecutor, according to Washington, and prosecutorial misconduct was never an issue before.
The appeals court also found fault with the defense attorney and the trial judge. Defense attorney David Atcachunas should have objected to Fear’s comments but did not, the appeals court found. And although the defense attorney did not try to stop Fear, the trial judge should have.
“We note that trial courts have a duty, even without hearing any objection, to bring a swift and sure end to prosecutorial misconduct,” the appeals court wrote.
Atcachunas would not comment. Neither would Carsten.
The office of Florida Attorney General Pam Bondi handled the appeal for the state. A spokeswoman would not say whether Bondi would challenge the ruling.
rstutzman@orlandosentinel.com or 407-650-6394
A man wearing a bulletproof vest fled from DeLand police this morning, leading law enforcement on a chase that ended with a fiery crash in Lake County.
A man wearing a bulletproof vest fled from DeLand police this morning, leading law enforcement on a chase that ended with a fiery crash in Lake County.
Security footage shows two men taking off the lower assembly of a motor from an Oviedo boatyard.
Security footage shows two men taking off the lower assembly of a motor from an Oviedo boatyard.
Cpl. Shelby Riggs-Hopkins of the Orlando Police Department has been disciplined after making a false arrest based on an incorrectly-administered drug test which identified Krispy Kreme dougnut glaze as amphetamine.
Cpl. Shelby Riggs-Hopkins of the Orlando Police Department has been disciplined after making a false arrest based on an incorrectly-administered drug test which identified Krispy Kreme dougnut glaze as amphetamine.
The cause of death in a Winter Park teen death has been determined. 15-year-old Roger Trindade died from blunt force trauma and the medical examiner has ruled the death a homicide.
The cause of death in a Winter Park teen death has been determined. 15-year-old Roger Trindade died from blunt force trauma and the medical examiner has ruled the death a homicide.
rstutzman@orlandosentinel.com or 407-650-6394
Our editors found this article on this site using Google and regenerated it for our readers.
