BILLY T. KRUGLAK, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Billy Kruglak appeals his conviction for unlawful marijuana possession and conspiracy to commit a felony. The Florida appellate court affirmed the conviction, rejecting arguments that the prosecutor's closing remarks were improper, that the trial court erred in allowing witnesses whose identities were not disclosed, and that joint representation of multiple defendants required severance.
The appellate court held that none of the alleged errors constituted reversible error. The prosecutor's remarks were responsive to defense counsel's initial closing argument and no objection was raised; the trial court did not abuse its discretion in allowing witness testimony despite late disclosure, particularly since the chief witness was identified in the information and the trial court offered the defendant opportunity to speak with witnesses; and no severance was required because no severance was requested at trial and the defenses were not shown to be antagonistic.
[1] Improper and prejudicial remarks made by a prosecuting attorney in closing argument, if made in response to statements by defense counsel, may not constitute reversible e…
[2] A defendant generally may not raise objections to remarks of a prosecutor for the first time on appeal, absent fundamental error.
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“Except for fundamental error, in absence of a timely objection interposed at trial, defendant may not raise objections to remarks of the prosecutor for the first time on appeal.”
Establishes the procedural requirement that prosecutorial comments must be objected to at trial or constitute fundamental error to be reviewable on appeal.
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Join FLexlaw to unlock all legal intelligenceKruglak and three co-defendants were jointly tried by jury for unlawful marijuana possession and conspiracy to sell marijuana. All four defendants wer…
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PER CURIAM.
Appellant seeks review of a judgment of conviction for (1) unlawful possession of marijuana, and (2) conspiracy to commit a felony.
Defendant-appellant, Billy T. Kruglak, was informed against for unlawful possession of marijuana and conspiracy to sell marijuana. Four other co-defendants were informed against in the same information and three of the co-defendants were charged in the conspiracy count along with the defendant. Appellant and these three codefendants were tried by jury and were represented by one counsel. At the conclusion of the trial, the jury found appellant guilty of both counts. Thereafter, the trial judge sentenced the defendant to six months in the county jail, to be served on weekends. The defendant appeals therefrom and urges three points wherein error on the part of the trial court allegedly has occurred.
Defendant Kruglak first contends that the prosecuting attorney’s closing argument was improper and prejudicial thereby denying the appellant his right to due process of law. We cannot agree.
After a close examination of the record, we conclude that the allegedly improper and prejudicial remarks of the prosecuting attorney in his closing argument were made in response to statements of defense counsel made in the initial closing argument. Cf. Evans v. State, Fla.App. 1965, 178 So. 2d 892; Ricks v. State, Fla. App.1971, 242 So. 2d 763. Moreover, no objection was interposed at the time the remarks were made. Except for fundamental error, in absence of a timely objection interposed at trial, defendant may not raise objections to remarks of the prosecutor for the first time on appeal. State v. Jones, Fla. 1967, 204 So. 2d 515; Hall v. State, Fla.App.1967, 203 So. 2d 202; Smith v. State, Fla.App. 1971, 243 So. 2d 602.
Appellant secondly argues that the trial court erred in allowing witnesses to testify for the state, whose identities were not supplied to the appellant, even though he timely had demanded their identities.
Upon the failure of a party to make discovery, the trial court' should make a careful inquiry as to why the disclosure was not made, the extent of the prejudice to the other party and the feasibility of rectifying that prejudice by some intermediate procedure. Although under RCrP 3.220(j), a trial judge may prohibit witnesses from testifying, this sanction should be exercised only under the most compelling circumstances and where the omission cannot be otherwise remedied. Williams v. State, Fla.App. 1972, 264 So. 2d 106 and cases cited therein.
Turning to the case sub judice, we find that defense counsel’s motion was not made pursuant to any specific rule of criminal procedure and further the motion requested the trial court to furnish the names of the witnesses; that the defense never set the motion down for hearing; that only after the jury had been sworn did defense counsel bring this motion to the court’s attention; that the trial court thereupon made an inquiry and thereafter offered defense counsel an opportunity to speak with the individual witnesses the prosecution would call; that counsel for defense refused and thereupon the trial judge denied the defense motions for production of evidence, better particulars and a witness list. The record further reflects that the prosecution’s chief witness, Officer Ahearn, was listed in the state’s information as a witness. Under these circumstances we cannot say that the trial court abused its discretion in allowing the prosecution’s witnesses to testify. See Howard v. State, Fla.App. 1970, 239 So. 2d 83 at 84 and cases cited therein. Thus, this point of appellant must fail.
Third and last, defendant alleges as error the fact that one attorney represented the appellant and the three co-defendants and a severance should have been granted.
We find this point lacks merit as there was no request for a severance prior to or during the trial and there was no showing that the defenses were antagonistic. See Jenkins v. State, Fla.App. 1969, 228 So. 2d 114.
For the reasons cited hereinabove, the judgment and sentence herein appealed hereby are affirmed.
Affirmed.
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Jones v. State, 360 So. 2d 1293 (Fla. 3d DCA 1978)…uire reversal whether or not the state had acted in good faith. [*1297] Holman, supra; Pizzo, supra. But where prejudice is not shown by the non-compliance, reversal is not warranted. Richardson v. State, 246 So. 2d 771 (Fla.1971); Kruglak v. State, 300 So. 2d 315 (Fla. 3d DCA 1974). Relevant evidence should not be excluded from the jury unless no other remedy suffices. Cooper v. State, 336 So. 2d 1133 (Fla.1976); Williams v. State, 264 So. 2d 106 (Fla. 4th DCA 1972); Holman, supra. In the instant case, the…
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O'Brien v. State, 454 So. 2d 675 (Fla. 5th DCA 1984)…never be imposed except in the most extreme eases, such as when purposeful, prejudicial and with intent to thwart justice. Anderson v. State, 314 So. 2d 803 (Fla. 3d DCA 1975); Williams v. State, 264 So. 2d 106 (Fla. 4th DCA 1972); Kruglak v. State, 300 So. 2d 315 (Fla. 3d DCA 1974); Patterson v. State, 419 So. 2d 1120 (Fla. 4th DCA 1982). No sanction should be imposed, least of all the most extreme, without an adequate hearing to determine the cause and effect of the failure to disclose. Richardson v. State,…
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Holman v. State, 347 So. 2d 832 (Fla. 3d DCA 1977)…consistent with the seriousness of the breach. Relevant evidence should not be excluded from the jury unless no other remedy suffices. * * % Jt $ 4: ‡ 4: 4: 4; See, also, Williams v. State, 264 So. 2d 106 (Fla. 4th D.C.A. 1972); Kruglak v. State, 300 So. 2d 315 (Fla. 3rd D.C.A. 1974). The key question in any discovery violation is prejudice. Where a defendant is prejudiced by the State’s failure to comply with the rule or failure to produce evidence, it does not matter whether that failure was purposeful…
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
- State v. Jones, 204 So. 2d 515 (Fla. 1967)
- Williams v. State, 264 So. 2d 106 (Fla. 4th DCA 1972)
- Ricks v. State, 242 So. 2d 763 (Fla. 3d DCA 1971)
- Howard v. State, 239 So. 2d 83 (Fla. 1st DCA 1970)
- Merlin Evans v. State, 178 So. 2d 892 (Fla. 3d DCA 1965)
- Hall v. State, 203 So. 2d 202 (Fla. 4th DCA 1967)
- Rebon v. State, 203 So. 2d 202 (Fla. 2d DCA 1967)
- Grady Eugene Jenkins v. State, 228 So. 2d 114 (Fla. 3d DCA 1969)
- Hollis Smith and Edmond J. Duhart v. State, 243 So. 2d 602 (Fla. 3d DCA 1971)