JUAN CARLOS BURGAL, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Juan Carlos Burgal appeals his convictions for attempted first degree murder and armed burglary. The Florida Third District Court of Appeal affirms his convictions and sentences, rejecting challenges to the admission of prior domestic violence evidence, the prosecutor's conduct, jury management, and the trial court's sentencing decision.
The court held that prior domestic violence evidence was properly admitted to prove motive, intent, and premeditation without unfair prejudice. The trial court properly declined to grant a mistrial based on the prosecutor's laughter, as the judge took corrective action and mistrial determination is within the trial court's discretion. Removal of the sleeping juror and substitution with an alternate was within the trial court's discretion and any error was harmless. The upward departure sentence based on the heinous, atrocious, or cruel nature of the violence was proper, and the split sentence imposed was legal.
[1] Prior incidents of domestic violence are admissible to prove motive, intent, and premeditation, provided there is no unfair prejudice.
[2] A trial court has discretion to determine whether substantial justice warrants granting a mistrial.
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Join FLexlaw to unlock all legal intelligence“the prior incidents of domestic violence by defendant-appellant Burgal against the victim were properly admitted into evidence to prove motive, intent, and premeditation”
establishes the legal basis for admitting prior domestic violence evidence under Florida law
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PER CURIAM.
Juan Carlos Burgal appeals his convictions for attempted first degree murder and armed burglary. We affirm.
First, the prior incidents of domestic violence by defendant-appellant Burgal against the victim were properly admitted into evidence to prove motive, intent, and premeditation. See § 90.404(2), Fla. Stat. (1997); Brown v. State, 611 So. 2d 540, 542 (Fla. 3d DCA 1992). There was no unfair prejudice from the introduction of this evidence.
Second, defendant contends that the court should have granted a mistrial when the prosecutor laughed during a part of the defendant’s testimony. The trial court took corrective action but declined to grant a mistrial. “Determination of whether substantial justice warrants granting a mistrial is within the discretion of the trial judge,” Sireci v. State, 587 So. 2d 450, 452 (Fla.1991) (citations omitted), and we find no abuse of that discretion here.
Third, removal of the sleeping juror and substitution of the alternate was within the discretion of the trial court. See Orosz v. State, 389 So. 2d 1199, 1200 (Fla. 1st DCA 1980). “Even if the court were wrong, the error was harmless. The juror was replaced by a duly selected alternate who had been present during the entire proceedings and appellant has not shown that he was prejudiced by the substitution.” Id. (citing State v. Tresvant, 359 So. 2d 524 (Fla. 3d DCA 1978)).
Fourth, the trial court imposed an upward departure sentence based on the statutory reason that “[t]he offense was one of violence and was committed in a manner that was specially heinous, atrocious, or cruel.” § 921.0016(3)(b), Fla. Stat. (1995).1 Writing in the analogous context of the capital punishment statute, the Florida Supreme Court “has consistently upheld findings of heinous, atrocious, or cruel where the victim was repeatedly stabbed.” Finney v. State, 660 So. 2d 674, 685 (Fla.1995) (citations omitted). Defendant also suggests that the split sentence in this case is illegal, but the sentence imposed fits within the alternatives outlined in Poore v. State, 531 So. 2d 161, 164 (Fla.1988), and we perceive no illegality.
Affirmed.
. The date of the crime was September 22, 1996.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Finney v. State, 660 So. 2d 674 (Fla. 1995)
- Sireci v. State, 587 So. 2d 450 (Fla. 1991)
- Brown v. State, 611 So. 2d 540 (Fla. 3d DCA 1992)
- Derwin Brennan v. State Farm Mut. Auto. Ins. Co., 359 So. 2d 524 (Fla. 3d DCA 1978)
- Orosz v. State, 389 So. 2d 1199 (Fla. 1st DCA 1980)