Biscardi v. State

Decision Date08 April 1987
Docket NumberNo. 85-1541,85-1541
Citation511 So.2d 575,12 Fla. L. Weekly 986
Parties12 Fla. L. Weekly 986 Cyrus BISCARDI, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

H. Dohn Williams, Jr., of H. Dohn Williams, Jr., P.A., Fort Lauderdale, and Melvin S. Black, Miami, for appellant.

Robert A. Butterworth, Jr., Attorney General, Tallahassee, Sarah B. Mayer and Diane Leeds, Asst. Attys. Gen., West Palm Beach, for appellee.

GLICKSTEIN, Judge.

This is an appeal from a conviction for armed kidnapping and simple assault, arising out of the same incidents which are the subject of our decision being issued simultaneously in Huhn v. State, 511 So.2d 583 (Fla.App.1987), and with the PCA issued by another panel of this court in Mones v. State, 485 So.2d 9 (Fla. 4th DCA 1986).

Prior to trial and again during trial, Biscardi unsuccessfully sought severance of his trial from those of the codefendants, Huhn and Mones.

In Biscardi's pretrial motion for severance, he summarized the facts which he believed justified severance, saying that he and the victim, Fiola, had been hired to drive a large quantity of cocaine to California; that they had turned the car with the contraband over to someone there and flown back to Fort Lauderdale; that later they flew back to San Francisco to pick up the car and drive it back; that nearly $500,000 in cash had been sewn into the car's rear seat cushions; that on the return trip, there had been no prior plan to stop at Turkey Lake Plaza on the Florida Turnpike, but Fiola told Biscardi to stop there, and while Fiola was in the restroom, two armed men hijacked the car with Biscardi aboard; that they threw Biscardi out of the car at the next Turnpike exit and drove off with the car and the cash; and that Fiola had arranged for this hijacking in a conspiracy with Jimmy Varone, Carl Sarrow (or Simone) and Paul Costello.

The main point of appellant's severance motion was that when he and Fiola got back to Biscardi's Miramar home, Eduardo Huhn was waiting for them with a gun, and threatened to kill them both, and their respective families, if he did not get his money back. After an unsuccessful attempt to find the hijackers in the Orlando area, they returned to Broward County. Biscardi called Huhn, and told Fiola he had to accompany Biscardi to Biscardi's home. When Fiola tried to leave Biscardi's home Biscardi kept him there to wait for Huhn's arrival, by exhibiting a small calibre gun. Huhn arrived with three others. Huhn accused Fiola of conspiring to commit the robbery and threatened to kill Fiola unless the money was returned. Fiola's hands and feet were then handcuffed. Another man arrived. He threatened to kill Fiola unless the money was returned.

When the various men left, Biscardi was ordered to stand guard over Fiola. Biscardi told Fiola he had put him in a "hell of a spot" and that Fiola would get $50,000 if the money was returned. Fiola denied involvement in the robbery and asked to be released, but Biscardi said he would be killed if he released Fiola. Ultimately Fiola admitted being an accomplice in the robbery and agreed to telephone Carl to try to get the money back. Carl did not answer the phone.

The next afternoon Huhn and another of the men returned. Again they threatened to kill Fiola unless he cooperated. Fiola agreed to call Jimmy Varone, and did so. Varone said he had not seen Carl in four days. Huhn got on the phone and said Jimmy had until 11 a.m. the next day to return the money, or Jimmy's gas station would be blown up and his family killed.

Late that day or early the next day Huhn again returned with one of the other men. Again Fiola was threatened. Huhn and the other man then left. Biscardi fell asleep and Fiola called the 911 number. The Miramar police came. They freed Fiola and detained Biscardi.

All of the above facts were derived from either Biscardi's deposition or Fiola's sworn statement to the police.

Biscardi's theory for severance was that he would assert a defense of coercion and duress by Huhn and his cohorts, and since his interests were antagonistic to Huhn's he should not be tried with Huhn.

Huhn denied that he had forced Biscardi to commit any criminal action towards Fiola or that he personally had committed such an action against Fiola.

Biscardi also moved for severance during trial, based on Fiola's testimony about threats from Huhn when he and Biscardi first returned without the car; about his and Biscardi's expressed fears they and their families would be killed, when they were unable to find the car, and the threats and actual violence after they returned from the unsuccessful search. Fiola testified that Biscardi told him Biscardi would suffer the same fate as Fiola if Biscardi did not detain Fiola as ordered.

Biscardi also proffered that Fiola would testify he had been in hiding and in protective custody since the incident, and that anyone who incriminated Huhn would be in grave danger. Biscardi also called attention to testimony of Detective Mantesta that Fiola's initial refusal to cooperate was based on fear for his own and his family's safety. Mantesta testified that the day the police rescued Fiola, Biscardi said he was (himself) a dead man because through his negligence Fiola had been able to contact the police. Biscardi said to Mantesta he had not realized he had gotten in over his head; that the people he was dealing with were "big time" and capable of doing anything.

Mantesta also testified Biscardi tipped off the police that Huhn and the others would be returning to Biscardi's house that evening, and that they were very dangerous. Biscardi gave Mantesta the keys to his house, and permission to hide there and wait for Huhn.

Biscardi proffered testimony of Mantesta that Mrs. Biscardi had called the police because she feared for her own and her family's safety, and that police surveilled the house while she and family members removed their clothing from the house. Biscardi also proffered testimony of FDLE agent Coffey about Fiola's initial refusal to cooperate because of fear for his safety, and about the armed protection given Fiola since he agreed to cooperate, because of fear of reprisal from Huhn.

Counsel for Biscardi said in appellant's initial brief that Biscardi instructed him not to assert the defense of coercion and duress in a joint trial, for fear of reprisal.

It was Huhn's testimony he had known Fiola for about eleven years, as one who did carpenter and painter work in Huhn's shoe store chain. Fiola had asked for large loans to pay off loan sharks whom he owed gambling debts, but Huhn had turned him down. Huhn denied having a gun or threatening Biscardi and Fiola when they told him about being robbed of a car loaded with money, or the next day when Biscardi called him to come to his house for advice.

Huhn denied being in any way involved in drug and money transportation with Fiola and Biscardi.

After his severance motions were denied, Biscardi moved for a separate jury to try his case. This was also denied.

After jury selection, Biscardi moved the court to allow the jurors to take notes. The court denied the motion. Appellant also sought some changes in the jury instructions because he had certain objections, prior to the jury's retiring to deliberate, but to no avail.

The issues restated are:

I. Whether the trial court erred in that appellant's trial should have been severed from codefendant, Huhn's, because their defenses were antagonistic. We conclude it did not.

II. Whether the trial court erred in that appellant should have been tried by separate jury from that which heard the case against his codefendant, Huhn. We conclude it did not.

III. Whether the trial court's indication to the jury that there was no provision for reinstruction of the jury or review of testimony was error, particularly when the court had refused to tell the jury, early in the trial, that they could take notes. We conclude it did.

IV. Whether the trial court erred by giving an incomplete instruction on the defense of coercion and duress. We conclude it did.

V. Whether the court erred when it commented to the jury, as the court was about to instruct on the lesser included offenses of kidnapping, that the jurors had probably already decided on the verdict. We conclude it did not, but we comment thereon.

VI. Whether the court erred in implying to the jury that it must reach a verdict, thus depriving appellant of the benefit of having a hung jury. We conclude it did not, but we comment thereon.

I DENIAL OF SEVERANCE

Granting or denying a motion for severance is ordinarily a discretionary matter for the trial court. Crum v. State, 398 So.2d 810 (Fla.1981). Thus, for example, in a first degree murder prosecution, the defendant was not entitled to severance of his trial from that of his codefendants because their testimony directly contradicted his alibi testimony and asserted he shot the victim, so long as the appellant had had a full opportunity to confront and cross-examine each of the witnesses against him, and he was not surprised at trial by the codefendants' testimony. McCray v. State, 416 So.2d 804 (Fla.1982). See also O'Callaghan v. State, 429 So.2d 691 (Fla.1983).

Old case law states that where the defenses or interests of two or more persons charged jointly are antagonistic, severance should be granted. Suarez v. State, 95 Fla. 42, 115 So. 519 (1928). The heart of the present law is found in Florida Rule of Criminal Procedure 3.152(b). While that rule does not specifically mention antagonistic, defenses as a basis for severance of the trial of codefendants, the law still appears to countenance severance on that ground, but it is not a per se rule. As was stated in McCray and repeated in O'Callaghan, the object of the severance rule is not to provide defendants with an absolute right of severance when requested, when they blame each other for the crime, but to assure each of them of a fair...

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    ...2009), on the basis that it expressly and directly conflicts with decisions of the Fourth District Court of Appeal in Biscardi v. State, 511 So.2d 575 (Fla. 4th DCA 1987); Huhn v. State, 511 So.2d 583 (Fla. 4th DCA 1987); and Rigdon v. State, 621 So.2d 475 (Fla. 4th DCA 1993).1 The issue be......
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