Ballard v. State
| Decision Date | 09 December 1975 |
| Docket Number | 75--261,Nos. 75--25,s. 75--25 |
| Citation | 323 So.2d 297 |
| Parties | Bernard BALLARD and Archie Curtis, Appellants, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Phillip A. Hubbart, Public Defender, and Gerald D. Hubbart, Asst. Public Defender, for appellants.
Robert L. Shevin, Atty. Gen., and J. Robert Olian, Asst. Atty. Gen., and Steven D. Ginsburg, Legal Intern, for appellee.
Before PEARSON, HAVERFIELD and NATHAN, JJ.
This is the consolidation of an appeal by Beanard Ballard and an appeal by Archie Curtis, co-defendants in a joint jury trial, from a judgment of conviction and sentence pursuant to a verdict, providing two concurrent 40-year sentences, in the state penitentiary, for second degree murder and robbery for Ballard, and two concurrent life sentences, in the state penitentiary, for first degree murder and robbery for Curtis.
The facts of the case are relatively undisputed. On July 29, 1974, Curtis, holding a .22 caliber pistol, and Ballard, holding a .38 caliber pistol, approached two men who were sitting in a car, and demanded all of their money. One of the men, Jackson, gave his cash to Ballard. The other claimed he had no money and Curtis shot him in the head, killing him. Both Curtis and Ballard ran away. That evening, Jackson accompanied Miami Police Department officers to a residence where they located Ballard and Curtis. Jackson identified both men. Detective Walter Martinez, who was present at the time, found a .38 caliber revolver and several rounds of .22 caliber and .38 caliber ammunition, under a bed on which Ballard was lying. Ballard's fingerprints were on the .38 caliber revolver. Detective Martinez testified, over Ballard's objection, that he advised Ballard of his constitutional rights to remain silent and to have a lawyer. When the detective testified that Ballard elected to remain silent, Ballard's counsel moved for a mistrial which was denied. Ballard's counsel contended that Martinez did not properly advise Ballard of his constitutional rights, but the trial court made a determination that his constitutional rights had been protected. Martinez then testified that when he asked about the gun found under the bed, Ballard said it did not belong to him and he never saw it before.
Detective Bryant, of the Miami Police Department, testified that on the following morning, he obtained a .22 caliber pistol from one Robert Wright. The testimony of the medical examiner and a ballistics expert showed that an autopsy revealed that the bullet removed from the deceased victim's head was fired from the gun recovered by Detective Bryant. The State rested its case and both defendants moved for directed verdicts which were denied.
Robert Wright, listed as a State's witness, but not called by the State to testify, was called to testify on Ballard's behalf. Curtis objected and moved for severance and mistrial. The court deferred ruling until after hearing the testimony. Wright testified that on July 29, 1974, he gave Ballard the .22 caliber pistol in question and drove Ballard and Curtis to the area where the shooting occurred. He further testified that Curtis and Ballard left the car for about 15 minutes and when they returned, Curtis said, '. . . damn, I shot that boy.' Wright also testified that Curtis later returned the gun to him; that he did not see Ballard take part in the robbery and that Ballard told him Curtis 'had shot that boy.' The motions for severance and mistrial were denied. Neither of the defendants testified. In summation, the prosecution stated that he did not vouch for Wright's credibility, but he referred to Wright's motive for testifying as a 'street sense of justice.' Following a jury verdict, Curtis was adjudged guilty and sentenced to two concurrent life sentences in the state penitentiary for first degree murder and robbery, and Ballard was adjudged guilty and sentenced to two concurrent 40-year terms in the state penitentiary for second degree murder and robbery.
In this consolidated appeal, Curtis contends that the court erred in denying his motions for severance and mistrial made before and after the testimony of Robert Wright, thus effectively denying Curtis the constitutional right to confront and cross-examine witnesses (namely the co-defendant), and the right to a fair trial when the defendants' defenses became mutually antagonistic. Ballard contends that the trial court erred in failing to find that Ballard's statements to Detective Martinez were voluntarily made and in permitting Martinez to testify over Ballard's objection as the record does not show that Ballard was adequately advised of his constitutional rights under the Fifth, Sixth and Fourteenth Amendments to the Constitution.
Curtis' argument, essentially, is that Wright's testimony contained an accusatory statement by co-defendant Ballard against Curtis, and since Ballard did not testify, Curtis was deprived of the opportunity to cross-examine Ballard who had become an accuser by virtue of Wright's testimony. The law in Florida as to severance of defendants is set forth in Rule 3.152(b)(1)(ii) as follows:
'(1) On motion of the State or a defendant, the court shall order a severance of defendants and separate trials:
(ii) during trial, only with defendant's consent and upon a showing that such order is necessary to achieve a fair determination of the guilt of innocence of one or more defendants.'
The granting or denying of a motion for severance is largely discretionary with the trial judge and his rulings will not ordinarily be disturbed on...
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...there is present in this case the antagonism of interests between codefendants which would require their severance. See Ballard v. State, 323 So.2d 297 (Fla. 3d DCA 1975); Frazier v. State, 287 So.2d 386 (Fla. 1st DCA 1973). The defenses of the appellants were consistent; they took the stan......
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