Florida Criminal Law Opinions

MARCOS SEGURA, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D06-3642

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

January 30, 2008, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey Levenson, Judge; L.T. Case No. 05-4464 CF10A.

COUNSEL:   Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Julie D. Lindahl, Assistant Attorney General, West Palm Beach, for appellee.

JUDGES:   WARNER, J. FARMER and GROSS, JJ., concur.

OPINION BY:   WARNER

OPINION  

WARNER, J.

Marcos Segura was charged by information with second-degree murder for the fatal stabbing of his father, Marcos Segura, Sr. He claimed self-defense. The jury convicted him as charged and he appeals, raising several trial court errors. These include the admission of gruesome photographs, permitting an officer to testify regarding blood stain evidence, and fundamental error with respect to the jury instructions on self-defense. We affirm on all issues.

Segura argues that the trial court erred in admitting numerous, oversized, redundant, and gruesome photographs into evidence, as they were prejudicial and distracted the jury from a fair consideration of the evidence in reaching its verdict. He claims that this error was harmful. State v. DiGuilio, 491 So. 2d 1129, 1137 (Fla. 1986);  [*2]  Walker v. State, 665 So. 2d 1070 (Fla. 4th DCA 1995). The state counters that the photographs provided relevant evidentiary value tending to prove and disprove material facts, and that the photographs corroborated testimony.

“The admission of photographic evidence of a murder victim is within the sound discretion of the trial court, and absent abuse, the trial judge’s ruling will not be disturbed on appeal.” England v. State, 940 So. 2d 389, 399 (Fla. 2006). See also Zack v. State, 911 So. 2d 1190, 1209 (Fla. 2005) (a trial court’s ruling on the admission of photographic evidence will not be disturbed on appeal unless there is a showing of clear abuse of discretion). Photographs are relevant when they establish the manner in which the murder was committed, show the position and location of the victim as found by police, or assist crime scene technicians in explaining the condition of the crime scene when police arrived. Douglas v. State, 878 So. 2d 1246, 1255 (Fla. 2004). Similarly, this court has stated that photographs are relevant where they “bear on the issues of the nature and extent of injuries, the nature and force of the violence used, premeditation or intent . . . .” Grey v. State, 727 So. 2d 1063, 1065 (Fla. 4th DCA 1999).

Although  [*3]  we note that Segura did not object to most of the admitted photographs of which he now complains, we nevertheless conclude that, even if the issue had been properly preserved, the admission of the photographs was not an abuse of discretion. They were admitted to assist in explaining the position and location of the body and the reconstruction of the crime scene. They were also useful in the medical examiner’s explanation of the wounds on the body.

In his second issue on appeal, Segura complains of the admission of the detective’s expert testimony on blood stain evidence, claiming that the detective was not properly qualified to offer the testimony that he did. The trial court did not abuse its discretion in permitting the testimony. See Anderson v. State, 863 So. 2d 169, 179-80 (Fla. 2003). Nor do we agree with Segura’s contention that the prosecutor’s questioning was more prejudicial than probative.

Finally, Segura argues that the jury instruction on self-defense was misleading and confusing, because Segura was in his own home and the father was a co-occupant. The state maintains the trial court did not abuse its discretion in instructing the jury as to both a duty to retreat and an  [*4]  absence of that duty, where the jury was thoroughly explained its application in the context of co-occupants, and the state did not exploit the conflicting instruction. Weiand v. State, 732 So. 2d 1044 (Fla. 1999).

We have previously rejected the argument that the reading of both instructions on the duty to retreat and the absence of a duty to retreat is confusing. See Liotta v. State, 939 So. 2d 333, 334 (Fla. 4th DCA 2006); Dias v. State, 812 So. 2d 487, 492 (Fla. 4th DCA 2002); Wilson v. State, 707 So. 2d 1200, 1201 (Fla. 4th DCA 1998). Accord Barnes v. State, 922 So. 2d 380 (Fla. 1st DCA 2006), quashed on other grounds, 970 So. 2d 332, 32 Fla. L. Weekly S770 (Fla. 2007); Wiggins v. State, 792 So. 2d 642 (Fla. 1st DCA 2001). We likewise reject Segura’s contention in this case.

The trial court did not abuse its discretion in any of the rulings raised on appeal. We therefore affirm Segura’s conviction and sentence.

FARMER and GROSS, JJ., concur.

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ANTHONY SMALLS, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D06-6464

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

January 28, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PRIOR HISTORY:    [*1]

An appeal from the Circuit Court for Duval County. L. P. Haddock, Judge.

COUNSEL:   Anthony Smalls, Pro se, Appellant.

Bill McCollum, Attorney General, Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   WEBSTER, BENTON, and POLSTON, JJ., CONCUR.

OPINION  

PER CURIAM.

Appellant seeks review of the summary denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part, reverse in part, and remand for further proceedings.

Pursuant to a guilty plea, appellant was sentenced as an habitual felony offender to 15 years in prison for burglary of a dwelling, concurrent with one year in prison for battery. In his motion, appellant raised several claims. We affirm without discussion the summary denial of all except the claim that his guilty plea was involuntary because his counsel advised him to enter the plea to burglary of a dwelling when no factual basis existed to support the charge. Specifically, appellant alleges that, had his counsel been aware of the definition of a dwelling, he would have known that the detached garage involved in appellant’s crime did not qualify as a dwelling. Appellant further alleges that, had his counsel properly  [*2]  advised him regarding the elements of burglary of a dwelling, he would not have entered a plea.

Before appellant entered his plea, the state offered its factual basis, which included the representation that appellant broke into a detached garage in the victim’s enclosed yard. Unfortunately, appellant was not asked whether the state’s recitation of the facts was accurate. A detached garage may qualify as part of a dwelling if the yard is “substantially enclosed.” See McAllister v. State, 859 So. 2d 611 (Fla. 1st DCA 2003). However, appellant has alleged that the victim’s yard was not “substantially enclosed” and that, as a result, the garage did not qualify as part of a dwelling. The portions of the record attached by the trial court to its order do not establish that the yard was, in fact, “substantially enclosed.” If appellant’s allegation is correct, no factual basis existed to support a conviction for burglary of a dwelling. Appellant further claims that he would not have entered his guilty plea but for his counsel’s ineffectiveness. As such, appellant’s allegations constitute a facially sufficient claim for ineffective assistance of counsel. See Brazeail v. State, 821 So. 2d 364, 367-68 (Fla. 1st DCA 2002)  [*3]  (stating that the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), is satisfied when the defendant states that, but for counsel’s errors, he would not have pleaded guilty); Sassnett v. State, 838 So. 2d 650, 652 (Fla. 1st DCA 2003) (reversing a summary denial of a rule 3.850 claim for ineffective assistance of counsel because defense counsel appeared to have been unfamiliar with the elements of burglary of a dwelling).

We reverse the summary denial of that portion of appellant’s motion that claims his attorney was ineffective because the attorney advised him to enter a plea to burglary of a dwelling when no factual basis existed to support that charge. Should the trial court again summarily deny this claim on remand, it shall attach to the order such portions of the record as conclusively show that appellant is entitled to no relief; otherwise, it shall hold an evidentiary hearing. In all other respects, the order is affirmed.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

WEBSTER, BENTON, and POLSTON, JJ., CONCUR.

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MARTIN COLOMBO, Appellant, v. STATE OF FLORIDA, Appellee.

CASE NO. 1D 07-2452

COURT OF APPEAL OF FLORIDA, FIRST DISTRICT

January 28, 2008, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PRIOR HISTORY:    [*1]

An appeal from the Circuit Court for Clay County. William A. Wilkes, Judge.

COUNSEL:   Martin Colombo, Pro se, Appellant.

Bill McCollum, Attorney General, Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellee.

JUDGES:   WEBSTER, BENTON, and POLSTON, JJ., CONCUR.

OPINION  

PER CURIAM.

Appellant seeks review of the trial court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse, and remand for further proceedings.

Following a guilty plea, appellant was sentenced to 15 months in prison for lewd and lascivious molestation. In his rule 3.850 motion, appellant alleged that he received ineffective assistance of counsel when his defense attorney advised him that his plea would not subject him to civil commitment pursuant to the Jimmy Ryce Act.

To state a facially sufficient claim of ineffective assistance of counsel, appellant’s burden was to demonstrate that his counsel’s performance was outside of the wide range of reasonable professional assistance, and that such conduct in fact prejudiced the outcome of the proceedings because, without the conduct, there is a reasonable probability that the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);  [*2]  Spencer v. State, 842 So. 2d 52, 61 (Fla. 2003); Cherry v. State, 659 So. 2d 1069, 1072 (Fla. 1995); Betts v. State, 792 So. 2d 589, 589-90 (Fla. 1st DCA 2001). Appellant met his burden by stating that he was given affirmative misadvice that entering a plea would not subject him to civil commitment pursuant to the Jimmy Ryce Act and that, but for this misadvice, he would not have entered his plea.

The trial court denied the motion, stating that appellant’s attorney was not required to inform appellant of the collateral consequences of the plea, including the application of the Jimmy Ryce Act. However, affirmative misadvice of counsel regarding the collateral consequences of entering a plea can constitute ineffective assistance of counsel and provide a basis for withdrawing a plea. See, e.g., State v. Sallato, 519 So. 2d 605 (Fla. 1988) (remanding to the trial court to determine whether the appellant was given misadvice about the effect his guilty plea would have on becoming a United States citizen); Watrous v. State, 793 So. 2d 6 (Fla. 2d DCA 2001) (remanding to the trial court to determine whether the appellant was given affirmative misadvice that after his plea he would be released  [*3]  on time already served). Furthermore, civil commitment of sexual predators is considered a collateral consequence of entering a plea to a qualifying offense. See Watrous, 793 So. 2d at 8-10.

Because appellant stated a facially sufficient claim of ineffective assistance of counsel and the trial court denied the motion without attaching portions of the record that conclusively refuted the claim, we reverse the summary denial of appellant’s motion. On remand, should the trial court elect again summarily to deny appellant’s claim, it shall attach to its order those portions of the record that demonstrate conclusively that appellant’s claim is without merit; otherwise, it shall hold an evidentiary hearing.

REVERSED and REMANDED, with directions.

WEBSTER, BENTON, and POLSTON, JJ., CONCUR.

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BENNY MORTON, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D06-4294

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

January 25, 2008, Opinion Filed

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Lake County, G. Richard Singeltary, Judge.

COUNSEL:   James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   EVANDER, J. GRIFFIN and ORFINGER, JJ., concur.

OPINION BY:   EVANDER

OPINION  

EVANDER, J.

Morton was convicted, after a jury trial, of sale of cocaine. The State’s primary witness was a confidential informant who had agreed to provide assistance to law enforcement after his own arrest for possession of cocaine. The confidential informant testified that he purchased two pieces of crack cocaine from Morton. The transaction occurred at a street corner with the confidential informant remaining in his car. The police officers supervising the confidential informant were not close enough to the intersection to observe the actual exchange. Although the confidential informant wore a wire, the recorded conversation was largely inaudible or indiscernible. The money allegedly given to Morton by the confidential informant was not recovered as Morton was not arrested until a later date.

During the confidential informant’s  [*2]  testimony, the following colloquy occurred:

PROSECUTOR: Can you tell the jury a little bit about how it came about that you thought you could buy some drugs from this particular person?

WITNESS: It was very clear that, you know [Morton] was selling drugs locally, and a lot of folks knew that, and I was able to have contact. . .Defense counsel immediately objected and, out of the presence of the jury, moved for a mistrial. The trial court declined to grant a mistrial, instead instructing the jury to disregard the witness’ answer. Morton renewed his motion for mistrial at the close of the State’s case and immediately prior to closing arguments.

The sole issue on appeal is whether the trial court erred in denying Morton’s motion for mistrial. The standard of review for a denial of a motion for mistrial is abuse of discretion. Goodwin v. State, 751 So. 2d 537 (Fla. 1999). A motion for mistrial should be granted when it is necessary to ensure that a defendant receives a fair trial. Power v. State, 605 So. 2d 856 (Fla. 1992), cert. denied, 507 U.S. 1037, 113 S. Ct. 1863, 123 L. Ed. 2d 483 (1993). When a jury is improperly informed of a defendant’s prior criminal activity, a curative instruction has frequently been found to be  [*3]  insufficient to preserve a defendant’s right to a fair trial. See, e.g., Coverdale v. State, 940 So. 2d 558 (Fla. 2d DCA 2006) (mistrial should have been granted after witness improperly commented that defendant had previously tried to molest witness’ daughter); Brooks v. State, 868 So. 2d 643 (Fla. 2d DCA 2004) (mistrial should have been granted after witness improperly commented that defendant had been “sent back to prison”); Henderson v. State, 789 So. 2d 1016 (Fla. 2d DCA 2000) (mistrial should have been granted after witness improperly commented that it appeared that defendant had committed prior robberies); Cornatezer v. State, 736 So. 2d 1217 (Fla. 5th DCA 1999) (mistrial should have been granted after witness improperly commented that defendant was convicted felon).

Here, the witness improperly advised the jury that “a lot of folks” knew that Morton was a drug dealer. Evidence that a defendant has previously committed a similar crime is particularly prejudicial because of the risk that a juror will be predisposed to believe that the defendant is guilty of the charged offense. Nickels v. State, 90 Fla. 659, 106 So. 479, 488 (Fla. 1925). A curative instruction was simply insufficient to “unring  [*4]  the bell.” Cornatezer, 736 So. 2d at 1218-19.

REVERSED and REMANDED for a new trial.

GRIFFIN and ORFINGER, JJ., concur.

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SEAN JOSEPH MONTANYE, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D07-829

COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT

January 25, 2008, Opinion FiledPRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Marion County, William T. Swigert, Judge.

COUNSEL:   James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.

JUDGES:   PALMER, C.J. GRIFFIN and SAWAYA, JJ., concur.

OPINION BY:   PALMER

OPINION  

PALMER, C.J.,

Sean Montanye (defendant) appeals his judgment and sentence which were entered by the trial court after a jury found him guilty of committing the crime of felony battery. Determining that unobjected-to improper comments made by the prosecutor during his closing argument do not rise to the level of fundamental error, we affirm. However, we write to address the impropriety of the prosecutor’s comments.

The defendant was charged with committing the crime of felony battery. The charges arose out of a fight that occurred at a party between the defendant and the victim, who was an off duty policemen and an invited guest to the party. The victim was severely injured as a result of the fight.

During the trial, several eyewitnesses testified that the defendant had committed the battery. Thereafter, the defendant’s brother,  [*2]  Josh Montanye, took the stand and testified that he, not the defendant, had committed the battery. On cross-examination, Josh acknowledged the fact that he was aware that the statute of limitations on the crime had already expired.

During his closing argument, the prosecutor made several statements which the defendant argues were improper. Defense counsel only objected to one of the comments and that objection was sustained and led to the issuance of a curative instruction. Accordingly, as to all of the other statements, appellate relief is only available if the unobjected-to comments rose to the level of fundamental error. See Merck v. State, 32 Fla. L. Weekly S789, 2007 Fla. LEXIS 2271 (Fla. Dec. 6, 2007). Fundamental error has been defined as being error which “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Kilgore v. State, 688 So.2d 895, 898 (Fla. 1996)(quoting State v. Delva, 575 So.2d 643, 644-45 (Fla. 1991)). See also Capron v. State, 948 So.2d 954, 956-957 (Fla. 5th DCA 2007).

Our review of the record leads us to the conclusion that several of the statements made by the prosecutor  [*3]  were indeed improper. For example, at one point during his argument, the prosecutor stated: “If Josh Montanye is lying, Sean is guilty. Josh Montanye is lying. Josh Montanye is lying, and he is doing it to get you all to buy it.” This comment not only improperly expressed the prosecutor’s personal opinion about the credibility of a witness, but also attempted to improperly shift the burden of proof to the defense (since simply proving that Josh Montanye was lying would not meet the State’s burden of proving the case of Sean’s guilt beyond a reasonable doubt). See Gore v. State, 719 So.2d 1197, 1200 (Fla. 1998)(condemning a prosecutor’s closing statement because it “enunciated an erroneous and misleading statement of the State’s burden of proof because it improperly asked the jury to determine whether Gore was lying as the sole test for determining the issue of his guilt.”).

In Gore, our supreme court further noted that it is improper for a prosecutor to “engage in vituperative or pejorative characterizations of a defendant or witness.” Id. at 1201. Such was done by the prosecutor in this case when he demeaned the defendant’s defense by stating: “I was expecting them to say that the  [*4]  sun was in their eyes and the dog ate their homework.” The most egregious comment along these lines occurred when the prosecutor was discussing why Josh Montanye’s wife, who was present during the altercation, was not called as a witness by the defense. He stated: “Maybe one perjurer in the family was enough.”

Upon careful review of the instant record we conclude that the prosecutor’s improper statements do not rise to the level of fundamental error; however, we admonish the prosecutor that such comments are improper.

AFFIRMED.

GRIFFIN and SAWAYA, JJ., concur.

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