Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-1768 _____________________________ MIKEL GARY MCCLUSKY, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Linda F. McCallum, Judge. February 11, 2021 TANENBAUM, J. In 2018 the State charged McClusky with committing two separate acts of sexual battery on a victim through the use of physical force. The charged crimes had occurred twelve years earlier. Based on the jury’s verdict, the trial court adjudicated McClusky guilty on both counts, but with one count excluding the punishment-enhancing, use-of-force element. McClusky received concurrent sentences of life and fifteen years in prison. On appeal, he makes three claims, but none has merit. We briefly address each to explain why. First, McClusky contends there is fundamental error in the trial court’s allowing, without objection, a nurse to offer testimony derived from her report, which was prepared at the time she conducted a sexual assault examination of the victim. The nurse testified that she had special training in the treatment of sexual assault victims and that she had conducted many sexual assault examinations. She worked at a sexual assault resource center at the health department, which kept the reports that nurses like her would generate during their examinations. The nurse testified that she did not have an independent recollection of the examination she conducted of the victim in 2006, but that she had prepared a report in conjunction with that examination so there would be “a record of what happened.” She acknowledged that she needed to refer to the report to “testify accurately.” The State asked the trial court for permission to have the witness testify while referencing her report. The defense raised no objection to the request, and the trial court permitted the testimony to proceed. For an error to be fundamental, it must reach down and vitiate the legality of the trial itself. Hamilton v. State, 88 So. 2d 606, 607 (Fla. 1956). Here, though, we find no error at all. With the proper foundation, a recorded recollection is not inadmissible as hearsay, and a declarant—here, the nurse—could even have read the recollection into evidence. See § 90.803(5), Fla. Evid. Code (allowing a witness to testify by reading his or her report into evidence, if the report concerns “a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately,” and if the witness made the report “when the matter was fresh in the witness’s memory . . . to reflect that knowledge correctly”). The nurse testified that she had prepared her report at the time of and in conjunction with the examination to have a “record of what happened,” and that the report would help her “testify accurately.” There in turn was a sufficient evidentiary foundation for the admissibility of the contents of her report through her testimony. See Polite v. State, 116 So. 3d 270, 278 (Fla. 2013) (reaffirming that “the admission of past recollection recorded under section 90.803(5) requires the witness to indicate that the statement was made at a time when the events were fresh in his or her mind and also attest to the accuracy of the memorandum or record”); id. at 279 (“Accordingly, a witness must testify that the recorded statement accurately reflects the witness’s knowledge.”); Garrett v. Morris Kirschman & Co., Inc., 336 So. 2d 566, 570 n.6 (Fla. 1976) (noting that when a witness testifies that a writing was “made 2 contemporaneously (or nearly so) with events as to which testimony is elicited, and testifies that he knew at the time it was written that it was accurate, he incorporates into his testimony by reference the record of past recollection” (emphasis supplied)); see also Middleton v. State, 426 So. 2d 548, 551 (Fla. 1982) (explaining “that a memorandum, to be available in such cases, must have been made at or about the time of the happening of the transaction, so that it may safely be assumed that the recollection was then sufficiently fresh to correctly express it”); Blount v. State, 152 So. 3d 29, 30 (Fla. 1st DCA 2014) (finding sufficient foundation for admission of a victim’s deposition under section 90.803(5) of Florida Evidence Code where the victim testified at trial that he did not remember events surrounding shooting, that “he described the events in his deposition when they were still fresh in his mind,” and that he was truthful in his deposition testimony about the events). Here, rather than simply reading her report into evidence, the nurse testified from her report in response to specific questions. Whether the nurse read her report into evidence in narrative form, or instead testified from it in response to questions designed to extract the information contained in the report, the result would be the same: the evidence presented through the nurse’s testimony is the admissible content of the report. Cf. Polite, 116 So. 3d at 278 (“We have previously explained that recording the statement while the matter is fresh in the witness’s mind is important because the statement is the record of the event or matter.”); id. at 279 (concluding that “when statements of past recollection recorded are admitted under this hearsay exception, the facts are being offered from the record or memorandum, not from the witness’s testimony,” so “the contents of the record substitute for the witness’s testimony” (internal quotation and citations omitted)). We hasten to note that the nurse was subject to cross-examination by the defense about her testimony from the report. Cf. Garrett, 336 So. 2d at 570 n.6 (explaining that upon proper foundation, a record of a witness’s past recollection “becomes admissible since it is supported by the witness’[s] oath, and he is available for cross examination”). The supreme court’s decision in Middleton v. State, 426 So. 2d 548 (Fla. 1982) helps here. In that case, the court explained the 3 distinction between admissibility of a stenographer’s testimony from a transcript he prepared “based on the theory of refreshed memory” and admissibility based “on the theory that his transcription was a recording of the statement he heard.” Id. at 551. The court stated as follows: There is a clear and obvious distinction between the use of a memorandum for the purpose of stimulating the memory and its use as a basis for testimony regarding transactions as to which there is no independent recollection. In the former case it is immaterial what constitutes the spur to memory, as the testimony, when given, rests solely upon the independent recollection of the witness. In the latter case the memorandum furnishes no mental stimulus, and the testimony of a witness by reference thereto derives whatever force it possesses from the fact that the memorandum is the record of a past recollection, reduced to writing while there was an existing independent recollection. Id. (citation omitted) (emphasis supplied). The nurse’s preliminary testimony about the nature of the report sufficiently supported an inference that her report was an accurate and contemporaneous record of the details of her examination of the victim. The contents of that recorded recollection were admissible, so there is no error— let alone fundamental error—in the nurse’s answering questions in direct reliance on those contents. Second, McClusky points to what he contends were various flaws in the State’s closing argument that, “[v]iewed as a whole,” constitute fundamental error. To the extent any of the prosecutor’s remarks were improper, we find nothing in the comments—taken either individually or collectively—so fundamentally wrong as to support reversal. See Rose v. State, 985 So. 2d 500, 508 (Fla. 2008) (“The proper method in reviewing the effect, and therefore the prejudice, of the prosecutor’s comment in [the] case is to place the comment in context.”). We note that many of the comments that McClusky considers to be objectionable instead properly called for inferences that fairly could be drawn from testimony given at trial or from the photographs of the trailer that were admitted into evidence as exhibits. See Smith v. State, 7 So. 3d 473, 509 (Fla. 4 2009) (explaining that “the courts of this state allow attorneys wide latitude to argue to the jury during closing argument,” such that “[l]ogical inferences may be drawn, and counsel is allowed to advance all legitimate arguments”); see also Gonzalez v. State, 136 So. 3d 1125, 1143 (Fla. 2014) (“The proper exercise of closing argument is to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence.” (quotation and citation omitted)). Moreover, the bulk of the prosecutor’s closing remarks identified by McClusky on appeal went to the credibility of the victim, who testified at trial. In opening statements, during cross- examination, and at closing, McClusky’s counsel called into question the victim’s memory and credibility. There is no doubt that the prosecutor in turn was entitled to include remarks in closing that were based on evidence and reasonable inferences therefrom (including the victim’s demeanor on the stand) to rebut the defense’s theory about credibility. See Pagan v. State, 830 So. 2d 792, 809 (Fla. 2002) (holding that the prosecutor’s comments in closing argument were not erroneous when they constituted “fair statement of the evidence produced during the trial and fair rebuttal” of the defense’s comments on testimony during argument); see also Brown v. State, 304 So. 3d 243, 280 n.17 (Fla. 2020) (determining that the prosecutor’s statements during closing argument were “proper responses to defense counsel’s credibility attacks on [] witnesses in light of the evidence presented at trial”); Braddy v. State, 111 So. 3d 810, 839 (Fla. 2012) (holding that the prosecutor’s comment in closing argument was “within the wide latitude afforded to the State at closing to advance all legitimate arguments based on the evidence” and to rebut the defense’s theory and closing argument); Valentine v. State, 98 So. 3d 44, 56 (Fla. 2012) (explaining that “[i]t is also proper for a prosecutor to ask the jury to consider what motive a witness would have to lie” and to “question the plausibility of the defense’s theory of the case”); Dailey v. State, 965 So. 2d 38, 44 (Fla. 2007) (finding that the “prosecutor’s alleged improper vouching for [witness] was a fair comment in response to defense counsel’s attack on [witness’s] credibility”); Walls v. State, 926 So. 2d 1156, 1166 (Fla. 2006) (“A prosecutor’s comments [in closing argument] are not improper where they fall into the category of an ‘invited response’ by the preceding argument of defense counsel concerning the same 5 subject.”). There is no reversible error in the State’s closing argument. Third, McClusky fails in his contention that the trial court should have held a Richardson * hearing. His counsel objected to the following question put to the nurse who conducted the sexual assault examination: “So does the fact there’s no vaginal injury mean a sexual assault did not occur?” Counsel argued that the question elicited expert opinion testimony, but that the nurse had not been disclosed as anything but a lay witness. McClusky now contends that the trial court erred when it concluded there was no discovery violation that prejudiced his defense. We note initially that the question likely did not elicit expert opinion testimony. At best, the question seems to have elicited testimony from the nurse about a fact that she may or may not have had personal knowledge of based on her extensive experience conducting sexual assault examinations. That would be a different objection, though: one going to foundation. In any event, the nurse never answered the question that the defense considered objectionable, so there was no prejudice to McClusky. In the absence of any legally cognizable, reversible error, we AFFIRM. RAY, C.J., and ROWE, J., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Jessica J. Yeary, Public Defender, and Kathleen Pafford, Assistant Public Defender, Tallahassee, for Appellant. * Richardson v. State, 246 So. 2d 771 (Fla. 1971). 6 Ashley Moody, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee. 7