IGNACIO VERGARA, FAUSTO VERGARA, AND HENRY ELOZUA, APPELLANTS,
v.
THE STATE OF FLORIDA, APPELLEE
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Three defendants appealed their convictions and sentences on multiple grounds, including alleged prosecutorial misconduct, evidentiary errors, ineffective assistance of counsel from joint representation, and sentencing guideline departures. The Third District Court of Appeal affirmed all convictions and sentences, finding no reversible error on any of the raised issues.
The court affirmed all convictions and sentences, holding that: (1) any error in prosecutorial comment was harmless beyond a reasonable doubt given overwhelming evidence of guilt; (2) the Bruton objection was not preserved for appeal; (3) the defendants' waiver of separate counsel was valid and competent; (4) no error existed in refusing the instruction lacking evidentiary support; and (5) the sentencing departure was properly justified.
[1] Prosecutorial comment on the absence of evidence is harmless error beyond a reasonable doubt when overwhelming evidence of guilt exists.
[2] A defendant's failure to object to the admission of post-arrest statements at trial waives the right to raise a Bruton claim on appeal.
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Join FLexlaw to unlock all legal intelligence“no reversible error is shown in allowing the prosecutor to comment in closing argument to the jury on the absence of evidence concerning a "911 call"; the error, if any, was harmless beyond a reasonable doubt in view of the overwhelming evidence of guilt presented at trial”
Establishes harmless error standard for prosecutorial comment on absent evidence
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Join FLexlaw to unlock all legal intelligenceThree defendants—Ignacio Vergara, Fausto Vergara, and Henry Elozua—were convicted at trial. The prosecution commented during closing argument on the a…
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PER CURIAM.
The final judgments of conviction and sentences under review are affirmed based on the following, briefly stated legal analysis. First, no reversible error is shown in allowing the prosecutor to comment in closing argument to the jury on the absence of evidence concerning a “911 call”; the error, if any, was harmless beyond a reasonable doubt in view of the overwhelming evidence of guilt presented at trial in this cause. See United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983); accord State v. Murray, 443 So. 2d 955 (Fla.1984); Hall v. State, 444 So. 2d 1019 (Fla. 3d DCA 1984); Carr v. State, 430 So. 2d 978 (Fla. 3d DCA), dismissed, 436 So. 2d 97 (Fla.1983).
Second, no reversible error is shown in the admission of certain post-arrest statements to the police by the defendant Henry Elozua based on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), because no Bruton objections were ever raised below and thus the alleged error has not been preserved for appellate review. See Ferguson v. State, 417 So. 2d 639, 641 (Fla.1982); Castor v. State, 365 So. 2d 701, 703 (Fla.1978); Clark v. State, 363 So. 2d 331, 333-35 (Fla.1978); Winters v. State, 425 So. 2d 203, 204 (Fla. 5th DCA 1983).
Third, the ineffective assistance of counsel claim based on one lawyer representing all three defendants in this case must be rejected on this record because the defendants individually waived their right to be represented by separate counsel after the trial court conducted a pre-trial inquiry on this subject. The record fails to demonstrate, as urged, that this waiver was not a competent or intelligent waiver of the right to separate counsel — although we do not pretermit the defendants from more fully developing this issue on a motion to vacate judgment and sentence under Fla.R.Crim.P. 3.850. See State v. Barber, 301 So. 2d 7, 9 (Fla.1974).
Fourth, no reversible error is presented in refusing to give a certain defense-requested instruction as no evidence was presented below to support such an instruction. See Williams v. State, 400 So. 2d 542 (Fla. 3d DCA 1981), cert. denied, 459 U.S. 1149, 103 S.Ct. 793, 74 L.Ed.2d 998 (1983); Jackson v. State, 251 So. 2d 702 (Fla. 2d DCA 1971); Hamilton v. State, 152 So. 2d 793 (Fla. 2d DCA), cert. denied, 156 So. 2d 388 (Fla.1963).
Finally, no reversible error is presented in the trial court’s departure from the sentencing guidelines inasmuch as the reasons stated for said departure fully justified the departure based on this record. See Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985); see generally Smith v. State, 454 So. 2d 90, 91 (Fla. 2d DCA 1984).
Affirmed.
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Harris v. State, 564 So. 2d 1211 (Fla. 3d DCA 1990)…ony had already been presented without objection. In addition, Anthony Harris failed to object to the closing argument. M.H. v. State, 538 So. 2d 1389 (Fla. 3d DCA 1989); Thomas v. State, 249 So. 2d 510 (Fla. 3d DCA 1971); see also Vergara v. State, 486 So. 2d 14 (Fla. 3d DCA 1986). Thus, any error was harmless. State v. DiGuilio, 491 So. 2d 1129 (Fla.1986). Finally, Anthony Harris failed to object to any of the other errors he contends the trial court committed. Vergara. We therefore affirm the convictions…
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Cruz v. State, 554 So. 2d 586 (Fla. 3d DCA 1989)…y the trial court’s failure to instruct the jury on the “defense” of abandonment. See Ray v. State, 403 So. 2d 956, 960-61 (Fla.1981); Castor v. State, 365 So. 2d 701, 703 (Fla.1978); Baker v. State, 241 So. 2d 683, 687 (Fla.1970); Vergara v. State, 486 So. 2d 14, 15 (Fla. 3d DCA 1986); Williams v. State, 400 So. 2d 542, 544 (Fla. 3d DCA 1981), cert. denied, 459 U.S. 1149, 103 S.Ct. 793, 74 L.Ed.2d 998 (1983). The state concedes, however, and we agree that it was a fundamental error for the trial court to…
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Ravel v. State, 563 So. 2d 212 (Fla. 3d DCA 1990)…PER CURIAM. Affirmed. Moore v. State, 530 So. 2d 61 (Fla. 1st DCA 1988); Vergara v. State, 486 So. 2d 14 (Fla. 3d DCA 1986).…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (19 total)
- Bruton v. United States, 391 U.S. 123 (U.S. 1968)
- United States v. Hasting, 461 U.S. 499 (U.S. 1983)
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- Clark v. State, 363 So. 2d 331 (Fla. 1978)
- State v. Murray, 443 So. 2d 955 (Fla. 1984)
- State v. Barber, 301 So. 2d 7 (Fla. 1974)
- Ferguson v. State, 417 So. 2d 639 (Fla. 1982)
- Williams v. State, 400 So. 2d 542 (Fla. 3d DCA 1981)
- Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984)
- Terence A. Baker v. State, 466 So. 2d 1144 (Fla. 3d DCA 1985)