SALVATORE CHARLES GRECH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1971-01-19
No. 69-854
Before PEARSON, C. J., and HEN-DRY and SWANN, JJ.
243 So. 2d 216 Florida District Court of Appeal, Third District (1971) Caution
Cited by 24 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Salvatore Grech was convicted by jury of breaking and entering, robbery, and aggravated assault. He appealed on multiple grounds including improper jury exclusion based on religious observance, denial of severance, and evidentiary issues. The appellate court affirmed the conviction, finding no reversible error.


Holding

The court held that excusing prospective jurors for valid personal reasons (including religious observance) does not constitute systematic exclusion violating constitutional rights. The denial of severance was not an abuse of discretion where counsel cooperated, defenses were not antagonistic, and each defendant merely asserted his own innocence. In-court identifications were properly admitted either because they had an independent basis not tainted by prior line-up suppression, or alternatively as harmless error. No prejudicial prosecutorial misconduct occurred.


Headnotes

[1] Excusing prospective jurors of a particular faith upon their request due to a religious observance does not constitute systematic exclusion from jury service.

[2] A motion for severance is addressed to the sound discretion of the trial court, and its denial will not be reversed absent a palpable abuse of discretion.

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Key Quotes

“Anyone of the Hebrew faith that requested of the Court that they be excused because of Yom Kippur, the Court had excused them along with other individuals who were on the jury venire who had a valid reason to be excused, such as physical or medical reasons supported by a doctor's statement.”

Trial court's explanation for excusing prospective jurors, showing the basis was individual request for valid personal reason, not systematic exclusion based on religion.

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Facts & Procedural History

Grech and three others were charged with breaking and entering, robbery, and assault with intent to commit murder. Grech and co-defendant Paul Gagnon …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Defendant, Salvatore Grech, and three others were informed against for breaking and entering, robbery and assault with intent to commit murder. See related cases of State v. Grech, Fla.App.1969, 219 So.2d 96 and Gagnon v. State, Fla.App.1970, 243 So.2d 219. He and Paul Gagnon, one of the three others, were tried together over his objection.

Defendant Grech was convicted in a trial by jury of breaking and entering with intent to commit a felony, robbery, and aggravated assault and was sentenced to a term of fifteen years in the state penitentiary.

The defendant seeks reversal of the judgment and sentence on numerous grounds. The principal grounds upon which he argues for reversal are that the court erred in that it: excused a class of persons from jury service prior to the selection of the jury; improperly denied severance; allowed in-court identifications where a prior line-up identification had been suppressed; admitted into evidence testimony linking the co-defendants before the crime; refused to reduce the charge to attempted robbery; failed to grant a mistrial for prosecutor’s prejudicial indirect references to defendant’s failure to testify; and refused to instruct as to the lesser included offense of trespass. We find no reversible error and affirm.

The trial of defendant commenced on Yom Kippur, the holiest day of the Hebrew religion. Prior to the jury selection, defendant objected to prospective jurors of that faith being excused, alleging deprivation of the constitutional right to a trial by his peers. The record indicates that the defendant is a member of the white race of Italian descent, but his religion does not appear of record. The trial judge explained :

“ * * * Anyone of the Hebrew faith that requested of the Court that they be excused because of Yom Kippur, the Court had excused them along with other individuals who were on the jury venire who had a valid reason to be excused, such as physical or medical reasons supported by a doctor’s statement.
“So this was done through the usual procedure through the Clerk of the Court.”

The defendant relies upon Cassell v. Texas (1950), 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839, and Simmons v. State, Fla.App.1966, 182 So.2d 442. Cassell v. Texas reversed a conviction on the grounds that the indictment was defective where Negro grand jurors had been purposefully excluded. Cassell v. Texas has been followed in Florida. Simmons v. State held it was reversible error to deny the defendant’s motion to quash the jury panel, reasoning that the venire from which it was drawn was not selected according to law where “common laborers” were “unlawfully excluded from the master lists.” In the instant case Jewish jurors were chosen from the list of veniremen to participate on the day of the trial, and were excused on the prospective juror’s request by the court for a valid reason, just as if they had a valid *218medical or physical reason. In North v. State, Fla. 1952, 65 So.2d 77, at pp. 79-80, the Florida Supreme Court found that the trial judge did not abuse his broad discretion in excusing prospective jurors for reasons personal to such individuals. In State v. Ceaser (1966), 249 La. 435, 187 So.2d 432, 436-437, the trial judge’s excusing large numbers of jury veniremen was not systematic exclusion. See also Scott v. State, Fla.App.1968, 207 So.2d 493. On the basis of the foregoing authorities, we hold that there was no systematic exclusion.

Defendant further urged before the trial court that severance should have been granted because of incompatibility of counsel and allegedly inculpatory statements made by the co-defendant, and on appeal also argues existence of antagonistic defenses. The general rule is that a point cannot be raised on appeal for the first time. Bertone v. State, Fla.App.1969, 224 So.2d 400, 403. We assume, arguendo, that the error has been properly preserved on appeal. Nevertheless, application for severance is addressed to the sound discretion of the trial court, and the order will not be reversed except for palpable abuse of judicial discretion. Reddick v. State, Fla.App.1966, 190 So.2d 340, 347 and 349 (and cases cited); Woodside v. State, Fla.App.1968, 206 So.2d 426, 429.

The record does not reveal incompatibility of counsel. The attorneys joined in motions and objections. They both attempted to discredit identifications by the victims and offered a joint exhibit. Gretch offered to proceed to trial, if the severance had been granted, even though the voir dire of the jury had been conducted substantially by counsel for the co-defendant. Each attorney asserted that his defendant was not at the scene of the crime.

Largely because each defendant asserted his absence from the scene of the crime, each co-defendant’s evidence fails to implicate the other and is not antagonistic. Defendant fails to indicate with specificity at what point the defenses were so antagonistic or inculpatory as to be prejudicial to the extent of reversible error. Woodside v. State, Fla.App.1968, 206 So.2d 426, 429.

Next, as to the validity of the in-court identification, Mrs. White made an in-court identification of the defendant Grech. At the time of such in-court identification and testimony about Grech’s conduct during the robbery, counsel made no objection. However, he adopted the motion by Gagnon’s counsel to strike the in-court identification even to the extent of not arguing such motion himself, but relying upon that advanced by the Public Defender. We assume, but do not decide, that the point was properly preserved and not waived.

The U. S. Supreme Court, in deciding whether an in-court identification by an eyewitness will be allowed over a pretrial identification by photograph, has said that the test is whether, on a case by case basis, such identification would have been so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States (1968), 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247. The same test was applied to an in-court identification by an eyewitness after a previously tainted lineup identification, and the identification was allowed. Coleman v. Alabama (1970), 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed. 387, 394.

The voir dire examination of Mrs. White shows that her eyewitness’ in-court identification of the defendant “did not stem from an identification procedure 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification’ ”; rather, such in-court identification was based upon an independent ground. In Coleman v. Alabama (1970), 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed. 387, 394, the U. S. Supreme Court allowed an in-court identification, because there was no error in trial court finding that it was not based upon a prior tainted police line-up and the trial court could have found *219that line-up identification was based upon observation of the crime and not the tainted police line-up. Alternatively, the introduction of such identification was harmless error. § 924.33, Fla.Stat., F.S.A.

Jill Henderson (who was ten years old) testified about the robbery, and made what the defendant characterizes as an uncertain and speculative in-court identification of the defendant because of the use of the words “I think” and “I believe.” The trial court’s rulings on the questions of this in-court identification prefaced by such language was not reversible error. Martin v. State, 100 Fla. 16, 129 So. 112, 116; Eizenman v. State, Fla.App.1961, 132 So.2d 763; see also: VI Wigmore on Evidence, § 1906, p. 575, and III Wigmore on Evidence, § 729, pp. 62-63 (3d Ed., 1940).

The defendant contends that the trial court erred in not granting his motion for mistrial based upon indirect references to the failure of the defendant to take the stand on his own behalf, which defendant alleges are prejudicial. We set out the statements and rhetorical questions in a note.1 We have considered the prosecutor’s remarks and the defendant’s contentions, and we find that no prejudicial error has been demonstrated. See: Chapman v. State of California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Sanders v. State, Fla.App.1970, 241 So.2d 430.

Therefore, the judgment and sentence are affirmed.

Affirmed.


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Citator

Cited By (12 total)

  • Stripling v. State, 349 So. 2d 187 (Fla. 3d DCA 1977)
    …id not receive a fair trial because of the denial of the motion to sever. Abbott v. State, 334 So. 2d 642 (Fla.3d DCA 1976). See also State v. Talavera, 243 So. 2d 595 (Fla.1971); Rodriguez v. State, 237 So. 2d 772 (Fla.3d DCA 1970); Grech v. State, 243 So. 2d 216 (Fla.3d DCA 1971); Dove v. State, 287 So. 2d 384 (Fla.1st DCA 1973). After a review of the record, we conclude Stripling has failed in his burden of showing the denial of his severance motion constituted an abuse of discretion. In light of the abov…
  • Dalton Abbott v. State, 334 So. 2d 642 (Fla. 3d DCA 1976)
    …he guilt or innocence of one of more defendants . . .” Motions for severance are addressed to the sound discretion of the trial judge and the order will not be reversed except for palpable abuse of judicial discretion. Grech v. State, Fla.App.1971, 243 So. 2d 216, 218. Therefore, it is incumbent upon a defendant who appeals a denial of his motion for severance to show at least a likelihood that he did not get a fair trial because of the denial of the motion to sever. The only possibility of prejudice to Abbo…
  • Downer v. State, 375 So. 2d 840 (Fla. 1979)
    …upon public access to TMH in order to promote the health of their patients as well as the efficient functioning of the facility. . Harris v. State, 129 Fla. 733, 177 So. 187 (1937); Martin v. State, 100 Fla. 16, 129 So. 112 (1930); Grech v. State, 243 So. 2d 216 (Fla. 3d DCA 1971); accord, United States v. Sullivan, 456 F. 2d 1273 (5th Cir. 1972). But see Anderson v. State, 92 Fla. 477, 110 So. 250 (1926).…

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