MICHAEL ANDINO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fifth District Court of Appeal reversed Andino's conviction, holding that a trial court erred by prospectively ruling that cross-examination of co-defendants would constitute 'offering testimony in his own behalf' and forfeit closing argument rights. The court found this placed an unconstitutional burden on the defendant and that the evidence was insufficient to support the conviction on one count.
A defendant's exercise of the constitutional right to cross-examine does not forfeit his statutory right to closing argument. The trial court erred in issuing such a prospective ruling, and the error cannot be considered harmless. Additionally, the evidence was insufficient to uphold Andino's conviction on Count II for being a principal to trafficking in cocaine.
[1] A defendant does not forfeit the right to closing argument by exercising the constitutional right to cross-examine a co-defendant.
[2] A trial court's prospective ruling that a defendant's exercise of the right to cross-examine a co-defendant constitutes offering testimony in his own behalf, thereby forf…
Previewing 2 of 5 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“To hold that by availing himself of the constitutional right of cross-examination an accused thus forfeits his statutory right to the concluding argument to us seems beyond the realm of logic and reason.”
Establishes the core holding that cross-examination rights cannot be conditioned on forfeiture of closing argument rights.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAndino was tried jointly with co-defendants and faced a trial court ruling that if he cross-examined his co-defendants should they testify, he would f…
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COBB, Judge.
The primary issue raised by this appeal is whether the trial court erred by prospectively ruling that cross-examination by An-dino’s counsel of Andino’s co-defendants, in the event they testified in their own behalf, would constitute “offering testimony in his own behalf” under Florida Rule of Criminal Procedure 3.250 so as to forfeit his right to first and last final argument.
We answered this question in Hart v. State, 526 So. 2d 124 (Fla. 5th DCA 1988), wherein we said:
To hold that by availing himself of the constitutional right of cross-examination an accused thus forfeits his statutory right to the concluding argument to us seems beyond the realm of logic and reason. Such a rule would place upon a defendant the intolerable burden of electing to either refrain from the exercise of his constitutional right to cross-examine and thereby suffer adverse testimony to stand in the record unchallenged and un-impeached or forfeit the valuable procedural right to closing argument. Beard v. State, 104 So. 2d 680 (Fla. 1st DCA 1958).
Andino’s counsel specifically waived his right to cross-examine the co-defendants in order to preserve his procedural right to final closing argument. We find no merit in the state’s argument that the error was not preserved. Any further argument subsequent to the trial court’s ruling would have been unavailing. See Reaves v. State, 531 So. 2d 401 (Fla. 5th DCA 1988).'
It should be noted that when the state chooses to try several defendants together, it takes the risk that a witness called by one defendant will give testimony favorable to others. Faulk v. State, 104 So. 2d 519 (Fla.1958). We cannot consider the error harmless. Faulk; Hart; Dampler v. State, 336 So. 2d 683 (Fla. 2d DCA 1976). In this case, Andino was faced with the burden of electing to either refrain from the exercise of his constitutional right to cross-examine or to “forfeit the valuable procedural right to closing argument.” Beard, supra.
We also agree with Andino that the evidence was insufficient to uphold his conviction under Count II, wherein he was charged with being a principal to trafficking in cocaine. It is not necessary for us to reach the third point on appeal concerning the imposition of a departure sentence.
REVERSED AND REMANDED FOR NEW TRIAL.
DAUKSCH and COWART, JJ., concur.
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Wynn v. State, 550 So. 2d 553 (Fla. 5th DCA 1989)…COBB, Judge. Reversed and remanded for a new trial on the authority of Andino v. State, 547 So. 2d 1046 (Fla. 5th DCA 1989). Appellant’s second point, in regard to entrapment, is without merit. REVERSED AND REMANDED FOR NEW TRIAL. DAUKSCH and COWART, JJ., concur.…
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Garland D. Lewis v. State, 550 So. 2d 553 (Fla. 5th DCA 1989)…COBB, Judge. We reverse and remand for a new trial in regard to appellant’s first point concerning the trial court’s application of Florida Rule of Criminal Procedure 8.250. See Andino v. State, 547 So. 2d 1046 (Fla. 5th DCA 1989). We find no merit in appellant’s re [*554] maining arguments, concerning the admissibility of a taped telephonic conversation and entrapment. REVERSED AND REMANDED FOR NEW TRIAL. DAUKSCH and COWART, JJ., concur.…
Authorities Cited
- Jewell Faulk v. State, 104 So. 2d 519 (Fla. 1958)
- Beard v. State, 104 So. 2d 680 (Fla. 1st DCA 1958)
- Reaves v. State, 531 So. 2d 401 (Fla. 5th DCA 1988)
- Hart v. State, 526 So. 2d 124 (Fla. 5th DCA 1988)
- Dampier v. State, 336 So. 2d 683 (Fla. 2d DCA 1976)