EMILIO SANCHEZ-BASULTO, A/K/A EL JABAO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Emilio Sanchez-Basulto appeals his convictions for second degree murder and unlawful possession of a weapon. The Third District Court of Appeal affirmed his convictions, rejecting arguments regarding a flight instruction error, cross-examination limitations, admission of victim photographs, and prosecutorial closing argument.
The court held that while the flight instruction was erroneous, the error was harmless given the uncontroverted eyewitness testimony establishing guilt beyond a reasonable doubt. The trial court did not abuse its discretion in limiting cross-examination, properly admitted victim photographs based on their relevance to wounds and weapon type, and the prosecutor's remarks were permissible comments on the evidence rather than impermissible references to the defendant's failure to testify.
[1] An erroneous flight instruction is harmless error when the state establishes beyond a reasonable doubt that the error did not contribute to the verdict.
[2] A trial court does not abuse its discretion by limiting cross-examination that is beyond the scope of direct examination, attempts to present defensive evidence, or is an…
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Join FLexlaw to unlock all legal intelligence“Upon consideration of the evidence supporting defendant's guilt, which included uncontroverted eyewitness testimony, we conclude that the state has established beyond a reasonable doubt that the error was harmless.”
Establishes that despite the trial court's error in giving a flight instruction, reversal was not required due to overwhelming evidence of guilt.
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Join FLexlaw to unlock all legal intelligenceSanchez-Basulto was convicted of second degree murder and unlawful possession of a weapon. The case involved uncontroverted eyewitness testimony regar…
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PER CURIAM.
Emilio Sanchez-Basulto seeks reversal of his convictions for second degree murder and unlawful possession of a weapon. Defendant raises several issues on appeal; none merits reversal. We affirm.
Addressing the issues, we conclude, first, that the trial court erred in giving a flight instruction-over defense objection. Fenelon v. State, 594 So. 2d 292 (Fla.1992); Bryant v. State, 602 So. 2d 966 (Fla. 3d DCA 1992). However, reversal is not man dated. Upon consideration of the evidence supporting defendant’s guilt, which included uncontroverted eyewitness testimony, we conclude that the state has established beyond a reasonable doubt that the error was harmless. Bryant.
Second, we find that the trial court did not abuse its discretion in limiting defendant’s cross-examination of several witnesses. The restricted cross-examination was either beyond the scope of direct examination, an improper attempt to present defensive evidence or an improper area of cross-examination. Gunsby v. State, 574 So. 2d 1085 (Fla.), cert. denied, — U.S. -, 112 S.Ct. 136, 116 L.Ed.2d 103 (1991); Penn v. State, 574 So. 2d 1079 (Fla.1991); Steinhorst v. State, 412 So. 2d 332 (Fla.1982).
Third, we find that the trial court properly admitted into evidence photographs of the victim. The medical examiner used the photographs in testifying about the victim’s wounds, the type of weapon used, how the wounds were inflicted, and the cause of the victim’s death. In addition, the medical examiner and a detective employed the photographs to depict the defensive nature of some of the wounds. The photographs were relevant to the issues at trial and their probative value outweighed any prejudicial effect. Thompson v. State, 565 So. 2d 1311 (Fla.1990); Haliburton v. State, 561 So. 2d 248 (Fla.1990), cert. denied, — U.S.-, 111 S.Ct. 2910, 115 L.Ed.2d 1073 (1991); McFarlane v. State, 593 So. 2d 305 (Fla.3d DCA 1992).
Finally, we hold that the prosecutor’s remarks during closing argument were not “ ‘fairly susceptible’ of being interpreted by the jury as referring to ... defendant’s failure to testify....” David v. State, 369 So. 2d 943, 944 (Fla.1979); see State v. DiGuilio, 491 So. 2d 1129 (Fla.1986); State v. Kinchen, 490 So. 2d 21 (Fla.1985). Instead, the remarks concerning the eyewitness testimony, taken in context, fell within the purview of permissible comment on the evidence. See Johnston v. State, 497 So. 2d 863 (Fla.1986); State v. Sheperd, 479 So. 2d 106 (Fla.1985); Torres v. State, 541 So. 2d 1224 (Fla. 2d DCA), reversed on other grounds, 548 So. 2d 660 (Fla.1989).
Accordingly, defendant’s convictions are affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Vargas v. State, 751 So. 2d 665 (Fla. 3d DCA 2000)…abuse of discretion where admitted photographs were probative of the premeditated murder charge); see also Gudinas v. State, 693 So. 2d 953, 963 (Fla.1997) (pictures were necessary to explain location and extent of wounds); Sanchez-Basulto v. State, 601 So. 2d 1263 (Fla. 3d DCA 1992) (admittance of photographs was probative of the nature of the victim’s wounds, type of weapon used, and cause of victim’s death). The defense next contends that his burglary conviction should be reversed because Elite was open to…
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Webb v. State, 609 So. 2d 728 (Fla. 5th DCA 1992)…that the Third District Court of Appeal has given Fenelon retrospective application but has also found harmless error. Wright v. State, 603 So. 2d 624 (Fla. 3d DCA 1992); Bryant v. State, 602 So. 2d 966 (Fla. 3d DCA 1992); Sanchez-Basulto v. State, 601 So. 2d 1263 (Fla. 3d DCA 1992). We hold that the retrospective application of Fenelon is unnecessary to a decision here because under the facts in this case an instruction on flight was inappropriate even prior to Fenelon. See Wright v. State, 586 So. 2d 1024…
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LEE v. State, 616 So. 2d 615 (Fla. 3d DCA 1993)…a.1992) is to be applied retroactively and is subject to harmless error analysis), cause dismissed, 618 So. 2d 212 (Fla.1993); Bryant v. State, 602 So. 2d 966 (Fla. 3d DCA 1992) (same), rev. denied, 613 So. 2d 9 (Fla.1993); Sanchez-Basulto v. State, 601 So. 2d 1263 (Fla. 3d DCA 1992) (same).…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Steinhorst v. State, 412 So. 2d 332 (Fla. 1982)
- King Anthony Green v. State, 594 So. 2d 292 (Fla. 1992)
- Johnston v. State, 497 So. 2d 863 (Fla. 1986)
- Haliburton v. State, 561 So. 2d 248 (Fla. 1990)
- State v. Kinchen, 490 So. 2d 21 (Fla. 1985)
- David v. State, 369 So. 2d 943 (Fla. 1979)
- Thompson v. State, 565 So. 2d 1311 (Fla. 1990)
- Penn v. State, 574 So. 2d 1079 (Fla. 1991)
- State v. Sheperd, 479 So. 2d 106 (Fla. 1985)