Garcia v. State

• Decision Date: 05 June 1986
• Docket Number: No. 64841,64841
• Citation: 492 So.2d 360,11 Fla. L. Weekly 251
• Parties: 11 Fla. L. Weekly 251 Enrique GARCIA, Appellant, Cross-Appellee, v. STATE of Florida, Appellee, Cross-Appellant.
• Court: Florida Supreme Court

Page 360

492 So.2d 360

11 Fla. L. Weekly 251

Enrique GARCIA, Appellant, Cross-Appellee, v. STATE of Florida, Appellee, Cross-Appellant.

No. 64841.

Supreme Court of Florida.

June 5, 1986.

Rehearing Denied Aug. 25, 1986.

James Marion Moorman, Public Defender and Robert F. Moeller, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant, cross-appellee.

Jim Smith, Atty. Gen. and Frank J. Migliore, Jr., Asst. Atty. Gen., Tampa, for appellee, cross-appellant.

SHAW, Justice.

Appellant Garcia was convicted on two counts of first-degree murder, three counts of robbery, and one count of conspiracy to commit armed robbery with a firearm. The jury recommended, and the trial judge imposed, two death sentences on the murder convictions. The trial judge also sentenced Garcia to fifteen years on the conspiracy conviction and a consecutive life sentence on one of the robbery convictions. Guilt was adjudicated but sentences withheld on two of the robbery convictions. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

The relevant facts are as follows. Appellant and three accomplices planned to rob a farm market. The plan was discussed for a period of days and scheduled for a time when the market was expected to have substantial cash on hand for cashing pay checks. Because at least one of the four men was known by the two owners and their employee, the plan included the murder of witnesses. On the selected day, the four men entered the market, drew guns and forced the two owners, an elderly husband and wife, into a back room. The employee was held briefly in the front of the store at gunpoint and then taken to the back room. A relatively small sum of approximately eighty dollars was taken from the cash register, but the owners could not, or would not, provide the large sum of cash the robbers demanded even though they were threatened with death. When their demands were refused, the robbers killed first the husband and then the wife by multiple shots into the back of their heads as the victims lay prone on the floor. The employee was also shot five times but survived and testified at trial.

Appellant raises ten points for our consideration. He first argues that his absence at several stages of the proceedings violated his constitutional right to be present at trial and cites ten instances when he was absent. The first absence was at a pretrial conference immediately prior to the start of jury selection. At this conference, appellant's counsel purported to waive his presence and moved the court to grant a change of venue, to grant additional peremptory challenges, to sequester the jury during proceedings, and to grant individual voir dire of the jury panel. The trial judge granted the latter motion and deferred action on the first three. Appellant is correct in his assertion that he has a constitutional right to be present at all crucial stages of his trial where his absence might frustrate the fairness of the proceedings. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934); Francis v. State, 413 So.2d 1175 (Fla.1982); Fla.R.Crim.P. 3.180(a). It is also true that counsel's waiver of a defendant's absence at a crucial stage of a trial, without acquiescence or ratification by the defendant, is error. State v. Melendez, 244 So.2d 137 (Fla.1971). However, appellant is incorrect in asserting that his absence frustrated the fairness of the proceeding. We do not see how his presence would have aided defense counsel in arguing the motions for a change in venue, for additional peremptory challenges, to sequester the jury, and to grant individual voir dire of the jury panel. Of these four motions, the trial judge granted the last, and deferred ruling on the first three. Appellant has not shown that he was prejudiced by his absence inasmuch as no adverse rulings were made on the motions.

Appellant also points out that Florida Rule of Criminal Procedure 3.180(a)(3) requires that the defendant be present at any pretrial conference unless the defendant waives his presence in writing. Appellant thus urges that rule 3.180(a) defines crucial stages of adversary proceedings, the violation of which is per se reversible error. This reasoning overlooks this Court's treatment of violations of the rule in Francis v. State, 413 So.2d 1175 (Fla.1982). In Francis, we determined it was error to deny the defendant the right to be present during the exercise of peremptory challenges and that this constituted a crucial stage of the trial. Nevertheless, we applied harmless error analysis to the error. Because we were unable to assess the extent of the prejudice, if any, we concluded that the error was reversible, i.e., harmful. It is clear then that while rule 3.180(a) determines that the involuntary absence of the defendant is error in certain enumerated circumstances, it is the constitutional question of whether fundamental fairness has been thwarted which determines whether the error is reversible. In other words, when the defendant is involuntarily absent during a crucial stage of adversary proceedings contrary to rule 3.180(a), the burden is on the state to show beyond a reasonable doubt that the error (absence) was not prejudicial. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The state in this instance has met its burden of showing that the defendant suffered no prejudice as a result of the rule violation and that the error was thus harmless.

The other nine absences can be dealt with more briefly. Appellant was present during the proffered testimony of a prosecution witness but absent when counsel argued to the trial judge that the testimony was not admissible. Although the judge ruled that the testimony was admissible, the state did not call the witness and appellant suffered no prejudice. Appellant was next absent when counsel argued that a particular gun was not admissible. The judge ruled the gun was inadmissible and appellant was not prejudiced. Appellant was also absent during arguments on the chain of custody of certain evidence. Prior to the argument, appellant and counsel requested and obtained the permission of the court for appellant to be absent. Appellant's next absence occurred during the conference on jury instructions. Prior to the conference, in the presence of the court, counsel consulted appellant as to whether he wished to be present and, thereafter, in the presence of appellant, requested and obtained permission of the court for appellant to be absent. Appellant's next absence occurred after the jury retired to deliberate and sent a question to the judge concerning jury instructions. The judge discussed the question with both counsel and they agreed on an answer. Appellant was not present during this discussion. However, the record shows that immediately after the jury retired to resume deliberations, appellant and counsel approached the bench and requested that appellant not be summoned for further questions from the jury; that he waived his absence and only wanted to come back when the jury reached a verdict. In response to the court's question, appellant indicated satisfaction with everything to that point. We see no error in this "absence"; indeed, it appears that the partial absence occurred only because counsel was immediately available when the question came from the jury and it simply took longer to get appellant, a prisoner in custody, into court than it did counsel. In any event, appellant was present when the jury was summoned to receive the answer and ratified his previous absence. Later, in the same evening, the jury requested that certain testimony be read to them. This was done and the jury retired. Appellant was absent as per his earlier waiver. We see no error in the court respecting his desire to be present only for a final verdict.

Appellant's next two absences occurred during the penalty phase after the jury retired to consider its recommendations on the appropriate penalty for the two convictions of first-degree murder. When it initially retired, the jury had been given only one verdict form. It was brought into open court and given the required two forms so that it could record recommendations on each conviction. Appellant was not present. Counsel waived his presence and represented to the court that there were two reasons for appellant's absence. One, he had previously indicated he did not want to be there except for verdicts. Two, during his last presence appellant had said aloud that he hoped the jury would give him death. Apparently this remark was only heard by defense counsel, but counsel was concerned that appellant might prejudice himself at this stage by the same or a similar remark to the jury. The judge acquiesced in the absence. Later, a second question was received from the jury. Again, defense counsel waived appellant's absence for the same reasons. It seems clear to us that appellant's absence was consistent with good trial strategy and appellant's earlier request that he not be brought back for jury questions. His absence under such circumstances does not constitute error.

Appellant's final absence occurred after the jury returned its recommendation of death and was discharged, but prior to sentencing. A hearing was held at which the trial judge granted appellant's motion that a pre-sentence investigation (PSI) be conducted and denied his motion for an additional sentencing hearing. Appellant's counsel represented to the court that appellant waived his presence. In view of the record showing that appellant did not wish to appear when purely legal arguments were made and counsel's representation that appellant had reiterated his desire not to be present, we are satisfied that he waived his...