Dean v. State, 79-937

• Decision Date: 05 April 1983
• Docket Number: No. 79-937,79-937
• Citation: 430 So.2d 491
• Parties: Nathaniel DEAN, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 491

430 So.2d 491

Nathaniel DEAN, Appellant, v. The STATE of Florida, Appellee.

No. 79-937.

District Court of Appeal of Florida Third District.

April 5, 1983.

Rehearing Denied May 11, 1983.

Bennett H. Brummer, Public Defender and Michael A. Rosen, Sp. Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., Janet Reno, State Atty. and Anthony C. Musto, Asst. State Atty., for appellee.

Before BARKDULL, HUBBART and FERGUSON, JJ.

PER CURIAM.

This is an appeal from a series of criminal convictions and sentences entered below for the crimes of conspiracy and grand larceny. The defendant Nathaniel Dean raises a number of contentions on this appeal in an effort to upset these convictions and sentences. After a thorough and painstaking review of the record and applicable law, we have concluded that there is no merit to any of these contentions, and, accordingly, we affirm.

First, the defendant contends that the trial court committed reversible error in refusing to allow his counsel the right to make the concluding argument before the jury as required by Fla.R.Crim.P. 3.250. ¹ We cannot agree. The state waived any argument before the jury in this cause and prior thereto the defendant's counsel was allowed to make a full and complete argument before the jury. Moreover, the state's waiver addressed to the court ["I think I can save the court some time. The evidence speaks for itself. We rest."] cannot legitimately be construed, as urged, as an indirect jury argument which required a rebuttal by defense counsel. Menard v. State, 427 So.2d 399 (Fla. 4th DCA 1983). Even if we were to construe the state's waiver as an oblique one sentence jury argument, the error, if any, in not allowing a reply to so fleeting a comment can hardly be considered a reversible error. See Palmes v. State, 397 So.2d 648, 653-54 (Fla.1981), pet. for cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981); §§ 59.041, 924.33, Fla.Stat. (1981).

Second, the defendant contends that the trial court committed reversible error in denying his motions for severance of defendants so as to be tried separately from his co-defendant Nimrod Harmon. We cannot agree. The evidence of guilt against the defendant Dean was so overwhelming that his otherwise proper joinder with the co-defendant Harmon under Fla.R.Crim.P. 3.150(b) could have had no real impact on the outcome of this case and, therefore, a severance of defendants was not called for under Fla.R.Crim.P. 3.152(b). True, the co-defendant's counsel did assert the defendant Dean's guilt in the co-defendant's opening statement and closing argument to the jury, but this added little or nothing to the already powerful case against the defendant Dean, a case so strong that no real defense was ever marshaled below against it. As such, we are unwilling to upset these convictions based on the subject severance issue. Menendez v. State, 368 So.2d 1278 (Fla.1979). Moreover, the defendant's companion hearsay point has no merit. Tresvant v. State, 396 So.2d 733 (Fla. 3d DCA), pet. for review denied, 408 So.2d 1096 (Fla.1981).

Third, the defendant contends that the trial court committed reversible error in denying, on grounds of untimeliness, a particular defense requested jury instruction. We cannot agree. The requested charge was not submitted at the charge conference below nor within the additional time allowed by the court to submit such a request. Instead, the request was made after final arguments to the jury and just before the jury charge; as such, the request was untimely under Fla.R.Crim.P. 3.380(c) and was properly denied on that ground alone. Beyond that, the defendant makes no contention that he was in any way prejudiced by the failure to give the requested charge; indeed, we find no prejudice is shown on this record in view of the trial court's more than adequate jury instructions which, in effect, covered the substance of the requested charge. See Lowman v. State, 353 So.2d 652, 653 (Fla. 3d DCA 1977).

Finally, the defendant contends that the trial court committed reversible error in denying the defendant's pre-trial motion to suppress certain evidence obtained pursuant to a subpoena duces tecum. We have no trouble in rejecting this contention as the defendant clearly had no "standing" to move to suppress the evidence herein. Indeed, the defendant's pre-trial motion to suppress contains no factual or legal allegations of any kind that the defendant had "standing" in this case to object to the fruits of the subject subpoena. [R. 99-100]. When the state challenged the lack of such "standing" at the hearing below on the motion to suppress, the defendant orally argued to the court that his "standing" herein was based entirely on the fact that he was the chief executive officer of the non-profit corporation against which the subpoena was issued; no other basis for "standing" was urged below. [R. 43-45]. Plainly, the trial court was correct in rejecting this showing of "standing" because a corporate official can never, by virtue of his office alone, derive "standing" to object to a subpoena which directs, as here, the production of corporate books and records. United States v. Bush, 582 F.2d 1016 (5th Cir.1978); United States v. Britt, 508 F.2d 1052 (5th Cir.1975); 3 W. LaFave, Search and Seizure § 11.3 at 565-66 (1978). Moreover, the defendant made no contention below and, in essence, makes no contention now that his "standing" rests on some other valid legal basis. The trial court, then, had no alternative but to deny the motion to suppress, for lack of "standing," and was not required to take testimony on the legal merits of the motion to suppress.

Beyond that, we think there are abundant other grounds for rejecting the defendant's suppression point herein. The pre-trial motion to suppress was patently defective on its face and was, therefore, subject to summary denial on that basis alone. Besides failing to contain any allegations whatever concerning the defendant's "standing," the motion fails to state with any particularity the legal grounds or legal reasons upon which the motion was based as required by Fla.R.Crim.P. 3.190(h)(1), (2). The motion merely alleges in conclusory terms that "the form and manner of [s]ervice of said subpoena were contrary to law, therefore the aforesaid seizure was illegal" [R. 99], a ground or reason so general and vague as to constitute no ground or reason at all, even when combined with the motion's bare-boned factual recital. As such, the trial court was authorized under Fla.R.Crim.P. 3.190(h)(3) to deny summarily the motion to suppress. Herring v. State, 394 So.2d 433 (Fla. 3d DCA 1980); State v. Butterfield, 285 So.2d 626 (Fla. 4th DCA 1973).

As a final blow to the suppression point, it is plain beyond doubt that the merits of the defendant's search and seizure contentions on appeal [defendant's main brief, pp. 15-17] have not been properly preserved for appellate review. As previously stated, a vague, conclusory and totally inadequate pre-trial motion to suppress was filed below; this was followed, in turn, by a series of short, vague and sporatic defense objections at trial to some of the items of evidence when offered below by the state--objections which mirrored the patently defective nature of the motion to suppress. At no time did the defendant argue with any specificity or case authority, as he does now, that his rights were violated below because the subject subpoena was unconstitutionally overbroad and was used as a ruse to conduct a general exploratory search for evidence. Based on a long and well-settled line of authority, we are precluded by law from considering the search and seizure contentions raised herein as they were never clearly presented to the trial court and, in essence, are urged here for the first time on appeal. See e.g., Ferguson v. State, 417 So.2d 639, 641 (Fla.1982); Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982); State v. Jones, 377 So.2d 1163, 1164 (Fla.1979); Castor v. State, 365 So.2d 701, 703 (Fla.1978); Paul v. Kanter, 155 So.2d 402 (Fla. 3d DCA 1963).

Affirmed.

FERGUSON, Judge (dissenting).

Appellant, at all pertinent times herein, was the president of a nonprofit corporation subsidized by government funds. Sometime in 1977 he became the target of a criminal investigation for misappropriation of corporate funds. He was subsequently convicted and sentenced on thirty counts of conspiracy and grand theft.

The Motion to Suppress documentary evidence alleged that on November 7, 1977, Dade County police officers went to the office of the corporation, which appellant heads as president, armed with a subpoena styled "State of Florida vs. Nathaniel Dean and Nimrod Harmon, Investigation Witness Subpoena Duces Tecum", which commanded the custodian of records to produce:

All books and all records of [the corporation] ... from January 1, 1975, through October 31, 1977, including general ledger, accounts receivable ledgers, check stubs, cancelled checks, bank statements, receipts, invoices, all other records and documents, correspondence and memos relating to receipt of money, property and funds from Dade County, Florida, or any agency of the U.S. Government or State of Florida, directly or indirectly, and the disbursements or expenditures of said funds during the aforesaid time period.

After law officers served the subpoena upon an employee who was not the custodian of records, they searched the premises, then seized a "truck load" of records from the office, including some which, admittedly, were not described in the subpoena. The records were first transported to the office of a government auditor, then eventually to the state attorney's office. The motion, which alleged that the documents had been illegally obtained, was set for pretrial hearing. Without conducting an evidentiary hearing on the motion the court adopted the state's argument and ruled summarily that appellant, as a corporate officer,...