LEONARD CAPERS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Leonard Capers was charged with first-degree murder but convicted of third-degree murder. On appeal, he raised several challenges to his conviction, including claims about jury selection, jury instructions, and his presence during peremptory challenges, all of which the court rejected.
The court found no abuse of discretion in jury selection where jurors stated they could base verdicts solely on evidence; no systematic exclusion where three of twelve jurors were black; no error in failing to instruct on underlying felonies to third-degree murder; the presence issue was not properly preserved for appeal; and incriminating evidence relevant to one defendant in a joint trial need not be excluded if accompanied by proper jury instructions.
[1] A trial court does not abuse its discretion by refusing to excuse a juror for cause when the juror states they can base their verdict solely on the evidence, and no other…
[2] A claim of systematic exclusion of black jurors is without merit when black jurors are included on the jury, including as foreman.
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Join FLexlaw to unlock all legal intelligence“no abuse of discretion is demonstrated by the court's refusal to excuse for cause several jurors where those jurors said that they could base their verdicts solely on the evidence”
Establishes the standard for whether jurors can be properly seated despite defendant's objections
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Join FLexlaw to unlock all legal intelligenceCapers was charged with first-degree murder and tried before a jury of twelve, three of whom were black with one serving as foreman. The trial court r…
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PER CURIAM.
Appellant, charged with first-degree murder, was convicted of third-degree murder. . He raises several points as error, none of which merit lengthy discussion.
First, no abuse of discretion is demonstrated by the court’s refusal to excuse for cause several jurors where those jurors said that they could base their verdicts solely on the evidence, and no other evidence or statements of the jurors suggests otherwise. See Singer v. State, 109 So. 2d 7 (Fla.1959); Ashley v. State, 370 So. 2d 1191 (Fla. 3d DCA 1979); § 913.08(10), Fla.Stat. (1981).
Second, appellant’s claim of systematic exclusion of black jurors was without merit where three of the twelve jurors were black, one of whom was foreman. See State v. Simpson, 326 So. 2d 54 (Fla. 4th DCA 1976).
Third, the court’s failure to instruct the jury on the underlying felony or felonies to the lesser-included offense of third-degree murder, upon which offense defendant was convicted, is not error. Fuller v. State, 414 So. 2d 264 (Fla. 3d DCA 1982) (where a defendant was charged with second-degree murder and the jury was instructed on that charge and on third-degree murder and manslaughter, no error was committed in failing to instruct the jury on an underlying non-enumerated felony to the lesser degree crime of third-degree murder of which defendant was convicted).
Fourth, the court will not consider an issue never presented to the trial court, i.e., whether defense counsel’s waiver of defendant’s presence during the exercise of peremptory challenges was with the defendant’s consent. Cf. Francis v. State, 413 So. 2d 1175 (Fla.1982) (where defendant filed a motion for new trial, contending that he had not consented to his counsel’s waiver of his right to be present during counsel’s exercise of his peremptory challenges, and that he was told by his counsel that he could not accompany him in the jury room where selection was taking place, reversible error was committed and defendant was entitled to a new trial). Appellant may challenge the voluntariness of the waiver by a motion for post-conviction relief. See Johnson v. State, 267 So. 2d 114 (Fla. 2d DCA 1972) (where defendant raised for the first time on appeal questions which Florida Rule of Criminal Procedure 3.850 required to be first submitted to trial court, judgment of conviction would be affirmed without prejudice to defendant’s right to seek post-conviction relief).
Finally, evidence which is incriminating to one defendant in a joint trial, but irrelevant as to the other defendant, need not be excluded, if, when coupled with careful instructions to the jury to consider the evidence only as to the defendant to whom it relates, prejudice is avoided. See United States v. Gattie, 511 F. 2d 608 (5th Cir.1975).
Affirmed.
BASKIN, Judge
(dissenting in part).
I agree with the majority opinion except with regard to the trial court’s failure to instruct the jury on underlying offenses pertaining to third degree felony murder. On that issue I adhere to the views expressed in Fuller v. State, 414 So. 2d 264, 266 (Fla. 3d DCA 1982) (Baskin, J. dissenting in part), review granted, (Fla. Nos. 62,153 & 62,259, 1983).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Capers v. State, 479 So. 2d 187 (Fla. 3d DCA 1985)…ges of the trial, does not mandate a new eviden-tiary hearing. Middleton v. State; Johnson v. Wainwright. Reversed and remanded. . Capers v. State, 433 So. 2d 1324 (Fla. 3d DCA 1983), rev. denied, 444 So. 2d 416 (Fla.1984) and Capers v. State, 433 So. 2d 1323 (Fla. 3d DA 1983), approved, 455 So. 2d 358 (Fla.1984).…
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Perez v. State, 489 So. 2d 1206 (Fla. 3d DCA 1986)…were both prejudicial and the product of ineffectiveness, concededly was not presented to the trial court. We note further that the argument is not supported by any record evidence. For these reasons the issue is not reviewable. See Capers v. State, 433 So. 2d 1323 (Fla. 3d DCA 1983), rev. denied, 444 So. 2d 416 (Fla.1984). Cf. Francis v. State, 413 So. 2d 1175 (Fla.1982) (ineffectiveness of counsel claim entertained in direct appeal where presented to trial court by post-trial motion and supported by record),…
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Capers v. State, 433 So. 2d 1324 (Fla. 3d DCA 1983)…PER CURIAM. Affirmed. Capers v. State, 433 So. 2d 1323 (Fla. 3d DCA 1983); State v. Dodd, 396 So. 2d 1205 (Fla. 3d DCA 1981), aff’d, 419 So. 2d 333 (Fla.1982); Griffin v. State, 419 So. 2d 320 (Fla.1982).…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Singer v. State, 109 So. 2d 7 (Fla. 1959)
- Francis v. State, 413 So. 2d 1175 (Fla. 1982)
- Ashley v. State, 370 So. 2d 1191 (Fla. 3d DCA 1979)
- Fuller v. State, 414 So. 2d 264 (Fla. 3d DCA 1982)
- Perkins v. Fla. Parole & Prob. Comm'n, 414 So. 2d 264 (Fla. 1st DCA 1982)
- United States v. Gattie, 511 F.2d 608 (5th Cir. 1975)
- State v. Simpson, 326 So. 2d 54 (Fla. 4th DCA 1976)
- Johnson v. State, 267 So. 2d 114 (Fla. 2d DCA 1972)
- Abnar v. Abnar, 267 So. 2d 114 (Fla. 2d DCA 1972)