Beltran v. State, 86-1345

• Decision Date: 06 September 1988
• Docket Number: No. 86-1345,86-1345
• Citation: 530 So.2d 1045,13 Fla. L. Weekly 2088
• Parties: 13 Fla. L. Weekly 2088 Felipe BELTRAN, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1045

530 So.2d 1045

13 Fla. L. Weekly 2088

Felipe BELTRAN, Appellant, v. The STATE of Florida, Appellee.

No. 86-1345.

District Court of Appeal of Florida Third District.

Sept. 6, 1988.

Bennett H. Brummer, Public Defender, and Samek and Besser and Lawrence Besser, Sp. Asst. Public Defender, Miami, for appellant.

Robert A. Butterworth, Atty. Gen., and Steven T. Scott, Asst. Atty. Gen., for appellee.

Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

Felipe Beltran was charged in a three-count information with the robbery and attempted murder of one Miguel Perez on June 9, 1985, and the first-degree murder of Perez on the following day, June 10, 1985. The State's avowed theory of the joinder of these offenses was that Beltran had hired two individuals to kill Perez, and that the individuals' efforts were thwarted on the 9th, but successful on the 10th. Before trial, the defendant moved to sever as being improperly joined Counts Two and Three (the robbery and attempted murder counts arising from the activities of June 9) from Count One (the first-degree murder count arising from the activities of June 10). The trial court denied the severance, but at the conclusion of the State's case granted the defendant's motion for judgment of acquittal on the charges of robbery and attempted murder. The defendant was thereafter found guilty of manslaughter with a firearm, a lesser-included offense of the first-degree murder charge. He appeals from the judgment of conviction and sentence imposed upon him, raising as his primary point the denial of his severance motion.

The acts and transactions which occurred on June 9 and those which occurred on June 10 are not connected in the sense contemplated by Florida Rule of Criminal Procedure 3.150(a), which permits joinder of offenses in the same information when the offenses "are based on the same act or transaction or on two or more connected acts or transactions." True, the victim of the crimes--Perez--was the same, but such a connection, standing alone, is manifestly an insufficient predicate for joinder. Perez did not identify his assailants of June 9, and there was no other admissible evidence connecting the alleged hired guns of the 10th to the crimes committed on the 9th or anything to show, in the State's wishful words, that "[t]he same hit men were used. The motive was the same." ¹

But even as the offenses of the 9th and the 10th were so disconnected from each other as to create a misjoinder, the proof concerning the robbery and attempted murder of Perez on the 9th so utterly failed to establish that the two culprits of the 9th were the same as the manslaughterers of the 10th that the defendant can hardly be deemed to have been harmed by the jury having heard it. Indeed, it could well be argued that the State's wholly unsuccessful efforts to tie the defendant to the bungled crimes of the 9th might well have undermined its efforts to convince the very same jury that the defendant was tied to the crime of the 10th, thus making the joinder not only harmless but beneficial to the defendant. Needless to say, when it came time for closing argument, the State made no further mention of anything that occurred on the 9th and, it of course follows, any connection between the events of the 9th and 10th.

Considering all of these circumstances--the lack of any bolstering effect of the erroneously admitted hearsay evidence concerning the robbery and attempted murder of the 9th, the court's acquittal of the defendant on these charges and instruction to the jury to disregard all reference to them, and the substantial direct evidence through the testimony of two witnesses that the defendant had indeed hired two men to kill Perez to avoid paying a drug debt--we are convinced that the error of the misjoinder is harmless. The outcome of this case thus depends upon whether the error of misjoinder is properly subject to a harmless error analysis.

Florida Rule of Criminal Procedure 3.152(a)(1) provides that where there has been an improper joinder of offenses in the same information, "the defendant shall have a right to a severance of the charges upon timely motion thereof." While the language "shall have a right to a severance" suggests that a denial of a requested severance of charges results in a per se reversal, the language has not always been so literally construed. While this court has flatly announced that where charges are misjoined, prejudice to the defendant is conclusively presumed, see, e.g., Essex v. State, 478 So.2d 450 (Fla. 3d DCA 1985); Finlay v. State, 424 So.2d 967 (Fla. 3d DCA 1983); McMullen v. State, 405 So.2d 479 (Fla. 3d DCA 1981); Macklin v. State, 395 So.2d 1219 (Fla.3d DCA 1981); see also Puhl v. State, 426 So.2d 1226, 1227 (Fla. 4th DCA 1983) (noting that "[t]he weight of authority in this state ... is that prejudice is presumed from an improper joinder of offenses"), we have also declared that the misjoinder of offenses is reversible error "only if it results in a miscarriage of justice or has injuriously affected the substantial rights of the defendant." Harris v. State, 414 So.2d 557, 558 (Fla. 3d DCA 1982). Although the conclusive presumption of prejudice rule enjoyed the support of earlier federal cases construing the like federal joinder rule, since United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986), misjoinder of charges under the comparable federal rule no longer results in per se reversal, but instead is subjected to a harmless error analysis. ²

Of course, in construing our misjoinder rule, we need not follow the lead of Lane and its federal progeny; in the absence of a binding decision of the Florida Supreme Court on the subject, ³ we are free to adhere to a conclusive presumption of prejudice rule. Because, however, Florida courts have traditionally analyzed our rule on joinder by looking to federal decisions construing the rule's federal counterpart upon which our rule was based, see Adams v. State, 423 So.2d 439 (Fla. 4th DCA 1982); Wilson v. State, 298 So.2d 433 (Fla. 4th DCA 1974), we believe the appropriate resolution of this case is to follow the United States Supreme Court's lead in Lane (and our own prescient decision in Harris v. State, 414 So.2d 557) and apply a harmless error test to this case.

Recognizing that the harmless error inquiry is "an extremely weighty matter implicating profound notions of fairness and justice, and, thus, must be undertaken with great caution," United States v. Maggitt, 784 F.2d 590, 595 (5th Cir.1986), we nonetheless reemphasize that we have little difficulty in concluding that the misjoinder here was harmless. In this case, unlike others in which there is strong evidence of defendant's criminal conduct as to each of the misjoined counts which may result in a spillover effect, there was, as the trial court recognized in acquitting the defendant on Counts Two and Three, no evidence which pointed to the defendant's guilt of the crimes charged in Counts Two and Three. Compare, e.g., United States v. Foutz, 540 F.2d 733, 736 (4th Cir.1976) ("One inevitable consequence of a joint trial is that the jury will be aware of evidence of one crime while considering the defendant's guilt or innocence of another."); Drew v. United States, 331 F.2d 85, 88 (D.C.Cir.1964) (defendant may be prejudiced by jury's using evidence to infer criminal disposition to defendant or cumulate evidence to reach guilty verdict when evidence on each charge is insufficient); United States v....