Farinas v. State, 70361
| Decision Date | 11 October 1990 |
| Docket Number | No. 70361,70361 |
| Citation | 569 So.2d 425 |
| Parties | 15 Fla. L. Weekly S555 Alberto FARINAS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
William A. Cain, Sp. Asst. Public Defender, North Miami Beach, for appellant.
Robert A. Butterworth, Atty. Gen., and Mark S. Dunn, Asst. Atty. Gen., Miami, for appellee.
Alberto Farinas appeals his conviction of first-degree murder and sentence of death. He also appeals his convictions of armed burglary and armed kidnapping, and sentences imposed thereon. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm the conviction of first-degree murder, but find the sentence should be reduced to life imprisonment without eligibility for parole for twenty-five years. We vacate the sentence of death. We also affirm the convictions and sentences imposed for armed kidnapping and armed burglary.
Testimony at trial established that the appellant, Farinas, had previously lived with the victim, Elsidia Landin, for approximately two years but they were not married. During this time, the couple had a child. Two months before the victim was killed, she left Farinas and moved into her parents' home, taking the child with her. On November 25, 1985, the victim and her sister drove their father to work. Farinas was waiting outside the home and followed the car. Farinas continued to follow the car after the two women dropped their father off at work and tried several times to force the victim's car off the road, finally succeeding in stopping her vehicle. Farinas then approached the victim's car and expressed anger at the victim for reporting to the police that he was harrassing her and her family.
When the victim's sister urged her to drive away, Farinas leaned into the vehicle and removed the keys from the ignition, ordered the victim out of the vehicle, and guided her by the arm to his car. After returning the keys to the victim's sister, Farinas drove away with the victim in his car despite the pleas of the victim and her sister. When Farinas stopped the car at a stoplight near the Palmetto Expressway, the victim jumped out of the car and ran, screaming and waving her arms for help. Farinas also jumped from the car and fired a shot from his pistol which hit the victim in the lower middle back. According to the medical examiner, this injury caused instant paralysis from the waist down. Farinas then approached the victim as she lay face down and, after unjamming his gun three times, fired two shots into the back of her head.
Farinas was charged with first-degree murder, armed burglary, and kidnapping with a firearm. He pleaded not guilty by reason of insanity. The jury found Farinas guilty on all three counts charged in the indictment and recommended the death penalty. In sentencing Farinas to death, the trial judge found the following aggravating circumstances to be applicable: (1) the capital felony was committed while the defendant was engaged in the commission of kidnapping 1; (2) the capital felony was especially heinous, atrocious, or cruel 2; and (3) the capital felony was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. 3 In regard to mitigation, the trial court found that while Farinas was under the influence of a mental or emotional disturbance, 4 it was not of such a nature or degree as to be considered extreme. The trial court also found that although Farinas' capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law was impaired, 5 the impairment was not of such a nature or degree as to be considered total or substantial. The trial court found that the evidence of these mitigating factors, considered alone or in conjunction with the other, were entitled to little weight and were outweighed by the aggravating factors. Farinas raises ten issues on appeal, of which only seven merit discussion. 6
Farinas first contends the trial court erred in denying a defense motion to suppress the murder weapon which was recovered by the police at the residence where Farinas was arrested. Farinas argues that the warrantless search was unreasonable and that the improper introduction of the weapon into evidence during his trial prejudiced him. We find it unnecessary, however, to determine whether the trial court erroneously denied the defense motion to suppress. Any error in admitting the weapon into evidence is clearly harmless. Farinas admitted committing the crime. Additionally, eye witnesses testified that they saw Farinas shoot the victim with a pistol. On the record before us, we can declare beyond a reasonable doubt that the admission of the weapon into evidence, even if erroneous, did not affect the jury verdict. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).
We next address Farinas' argument that the trial court abused its discretion by denying a defense motion for mistrial based upon alleged improper cross-examination and impeachment of the key defense witness, Dr. Rothenberg. The first line of questioning now challenged by Farinas involved the following exchange between the prosecutor and Dr. Rothenberg on cross-examination:
Q. When did you work for them?
A. It was a seven year period from the early 50's to the late 60's.
Q. And, did there come a time when you terminated or you ceased your employment relationship with the City of Miami Beach?
A. Yes, sir. The City closed the office because they felt that there was other services that should be provided at a county-level rather than a municipal level so they did not include it in the next budget.
Q. Do you know whether or not the City of Miami Beach terminated you because the City of Miami Beach felt that you were ethically and purposely referring private patients to yourself after you had made contact with those patients as an employee of the City of Miami Beach?
A. No. That's absolutely not true and it couldn't have happened because the City of Miami Beach was servicing people who were not able to afford private fees and they had to be screened as being eligible for public service because they only provided service for those and there was no way for me to refer those indigent people to anyone.
Q. So as far as you are concerned, you did nothing unethical in that instance?
A. I have never been unethical, sir.
The second line of questioning now challenged by Farinas occurred a few moments later. On redirect examination of Dr. Rothenberg, defense counsel twice inquired if the doctor knew whether Farinas had ever read the Diagnostic Statistical Manual of Disorders and was aware of "the sentences that are in there." The doctor replied During recross-examination, the prosecutor inquired as follows:
Q. Mr. Gonzalez has asked if he had read it and I would like to ask you also, Doctor, would you be surprised if he talked to individuals over in the jail already about possible defenses in this case?
A. No. I wouldn't be surprised.
Q. You wouldn't be surprised that he had talked about possible defenses--
At this point, defense counsel objected, asking that the trial court direct the prosecutor to stop making any further inquiry of this issue and stated that she had a motion for mistrial. The objection was overruled. After the conclusion of Dr. Rothenberg's testimony, defense counsel stated that there were two grounds for the motion for mistrial. One ground was "the innuendo concerning Dr. Rothenberg and Miami Beach." A second ground was the inference by the prosecutor that Farinas consulted with others in the jail as to possible defenses.
The trial court correctly denied the motion for mistrial. Evidence of particular acts of misconduct cannot be introduced to impeach the credibility of a witness. The only proper inquiry into a witness' character, for impeachment purposes, goes to reputation for truth and veracity. Hitchcock v. State, 413 So.2d 741, 744 (Fla.), cert. denied, 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982). See also §§ 90.608-90.610, Fla.Stat. (1985). In the present case, the line of questioning regarding unethical conduct on the part of the doctor while employed by the City of Miami Beach was improper impeachment of a witness, as the state concedes.
Absent fundamental error, an issue will not be considered for the first time on appeal. Clark v. State, 363 So.2d 331 (Fla.1978). The improper impeachment of the witness complained about is not fundamental error. Because defense counsel in the present case failed to make a contemporaneous objection to this improper line of questioning impeaching the defense witness, the issue is not properly preserved for appeal. Davis v. State, 461 So.2d 67, 71 (Fla.1984), cert. denied, 473 U.S. 913, 105 S.Ct. 3540, 87 L.Ed.2d 663 (1985). Farinas' reliance upon Fulton v. State, 335 So.2d 280 (Fla.1976) is misplaced. In Fulton, defense counsel interposed immediate objections to improper questions by the prosecutor impeaching a defense witness. 7
We also reject the argument that the trial court erred in overruling the objection and motion for mistrial based upon the prosecutor's inquiring whether Dr. Rothenberg would be surprised if Farinas had talked to individuals in jail about possible defenses. Defense counsel opened this area to inquiry on redirect by asking Dr. Rothenberg if he felt Farinas had read the Diagnostic Statistical Manual of Disorders. It was not outside the scope of redirect examination for the state to inquire whether the doctor thought it was possible that Farinas had acquired knowledge of possible defenses from sources other than the manual. Therefore, this line of questioning was permissible. § 90.612(2), Fla.Stat. (1985).
In the final issue which we will address concerning the guilt phase of the trial, Farinas argues the trial court erred in entering judgment upon the verdicts of guilty of...
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