ROBERT PETER SUAREZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Suarez appeals his first-degree murder conviction and life sentence, arguing that the trial court improperly refused to reopen the case for additional testimony and improperly gave a shortened jury instruction on excusable homicide. The appellate court affirmed the conviction, finding no error in either ruling.
The trial court did not err in refusing to reopen the case because the proffered testimony was not newly discovered evidence but had been available before trial. The trial court also did not err in giving the shortened excusable homicide instruction because Suarez was charged with first-degree murder (with manslaughter being two steps removed), his only defense was that he did not commit the crime, and any such error was harmless given the absence of self-defense or excusable homicide defenses.
[1] A trial court does not err in refusing to allow a party to reopen its case to present testimony that is not newly discovered evidence.
[2] A deposition transcript in the possession of a party's attorney prior to trial does not constitute newly discovered evidence.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“justifiable or excusable homicide is not a lesser included offense within the meaning of Florida Rule of Criminal Procedure 3.490 but is part of the language defining manslaughter as a residual offense which excludes justifiable and excusable homicide”
Explains why complete excusable homicide instructions are necessary when manslaughter is charged
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Join FLexlaw to unlock all legal intelligenceSuarez was convicted of first-degree murder and sentenced to life imprisonment with a mandatory twenty-five-year minimum. The proffered additional tes…
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CAMPBELL, Judge.
Appellant appeals his judgment and accompanying sentence to life imprisonment with a mandatory twenty-five years for first degree murder. Appellant first raises as error the trial court’s refusal to allow appellant to reopen the case to receive additional testimony. We find no error in the trial court’s refusal. The evidence was not newly discovered evidence. The deposition of the witness whose testimony was proffered had been taken prior to trial, and the transcript of the deposition had been in the possession of appellant’s attorney prior to trial.
Appellant’s second point raises as error the trial court’s refusal to give the full version of the instruction on excusable homicide. The court gave, instead, the shorter instruction on excusable homicide contained in the Florida Standard Jury Instructions in Criminal Cases section on “Introduction To Homicide” at page 61.
Appellant cites to us, as authority for his position, Delaford v. State, 449 So. 2d 983 (Fla. 2d DCA 1984), Niblack v. State, 451 So. 2d 539 (Fla. 2d DCA 1984), and Blitch v. State, 427 So. 2d 785 (Fla. 2d DCA 1983). Niblack and Delaford hold that in order to properly charge manslaughter, excusable and justifiable homicide instructions must be given. That rule arises because justifiable or excusable homicide is not a lesser included offense within the meaning of Florida Rule of Criminal Procedure 3.490 but is part of the language defining manslaughter as a residual offense which excludes justifiable and excusable homicide. Delaford, 449 So. 2d at 984. Blitch holds that in order for manslaughter to be adequately defined, a complete instruction on justifiable and excusable homicide must be given even where there is no evidence to support a finding of justifiable or excusable homicide. Delaford, however, involved a conviction of manslaughter. Niblack and Blitch both involved convictions for second degree murder. Hedges v. State, 172 So. 2d 824 (Fla.1965), on which Delaford, Niblack and Blitch were founded, was also a conviction for manslaughter. In the case before us, appellant’s only defense was that he did not commit the crime. Neither self-defense nor excusable or justifiable homicide were involved. Appellant was charged with, and found guilty of, first degree murder. Manslaughter was at least two steps removed from the offense for which appellant was convicted. Appellant only contends that the manslaughter instruction was deficient because it contained a summary rather than a complete excusable homicide instruction. Under State v. Abreau, 363 So. 2d 1063 (Fla.1978), any error because of an imperfect manslaughter instruction was harmless error. Affirmed.
RYDER, C.J., and HALL, J., concur.
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Alvarado v. State, 521 So. 2d 180 (Fla. 3d DCA 1988)…trial, and (b) no fundamental error is presented. See Castor v. State, 365 So. 2d 701, 703 (Fla.1978); Williams v. State, 400 So. 2d 542, 543-44 (Fla. 3d DCA 1981), cert. denied, 459 U.S. 1149, 103 S.Ct. 793, 74 L.Ed.2d 998 (1983); Suarez v. State, 478 So. 2d 1173, 1174 (Fla. 2d DCA 1985). Third, the defendant claims that the trial court committed reversible error in precluding defense cross-examination of state witnesses concerning “payments for testimony or possibility of rewards.” We have reviewed the th…
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Smith v. State, 194 So. 3d 483 (Fla. 3d DCA 2016)…other evidence to present, defense counsel failed to inform the' trial court that he had subpoenaed Ms. Darden but she had failed to appéar, or that he wanted to introduce her deposition testimony in lieu of her five testimony. See Suarez v. State, 478 So. 2d 1173, 1174 (Fla. 2d DCA 1985) (holding that'the trial court did not' err by refusing to allow the defendant to reopen the case to receive additional testimony where, the evidence was not. newly discovered evidence and the “deposition of the witness whose…
Authorities Cited
- Grant v. State, 363 So. 2d 1063 (Fla. 1978)
- Whitney v. Colonial INN, 172 So. 2d 824 (Fla. 1965)
- Butch v. State, 427 So. 2d 785 (Fla. 2d DCA 1983)
- Delaford v. State, 449 So. 2d 983 (Fla. 2d DCA 1984)
- Niblack v. State, 451 So. 2d 539 (Fla. 2d DCA 1984)