Giamo v. Purdy

• Decision Date: 02 March 1972
• Docket Number: Civ. No. 71-1784.
• Citation: 346 F. Supp. 1
• Parties: Tony GIAMO, Petitioner, v. E. Wilson PURDY, Respondent.
• Court: U.S. District Court — Southern District of Florida

346 F. Supp. 1

Tony GIAMO, Petitioner, v. E. Wilson PURDY, Respondent.

Civ. No. 71-1784.

United States District Court, S. D. Florida.

March 2, 1972.

Shalle Stephen Fine, Miami, Fla., for petitioner.

Joel D. Rosenblatt, Asst. Atty. Gen., Miami, Fla., for respondent.

ORDER OF DISMISSAL

MEHRTENS, District Judge.

Tony Giamo has filed a Petition for Writ of Habeas Corpus attacking a five-year sentence imposed on May 15, 1970 in the Criminal Court of Record in and for Dade County, Florida after a jury trial resulted in a verdict of guilty for the crime of bribery. Petitioner's conviction was affirmed on direct appeal to the Florida Third District Court of Appeal. Giamo v. State of Florida, 245 So.2d 116 (Fla.App. 3 1971). Petitions for Certiorari were then denied by the Florida and United States Supreme Courts on August 31, 1971 and January 10, 1972 respectively.

The grounds raised on direct appeal and in the petitions for certiorari, as well as in this instant petition are as follows:

(1) The introduction into evidence of acts allegedly committed by petitioner similar to the crime charged, both prior and subsequent to the date of the crime charged, resulted in the petitioner not being convicted of a specified crime thereby depriving him of due process of law.

(2) Prejudicial comments by the prosecutor in closing argument to the jury deprived petitioner of a fair trial.

It appears that petitioner has exhausted his state remedies. Malone v. Wainwright, 433 F.2d 927 (5 Cir.1970).

Petitioner, at the time he filed the instant petition was in the custody of E. Wilson Purdy, Sheriff of Dade County, Florida, apparently awaiting transfer to a state prison to continue service of his sentence. Presently, petitioner is serving his sentence in the custody of Louie L. Wainwright, Director of Florida State Prisons. Louie L. Wainwright will, therefore, be substituted as respondent in this cause.

As to petitioner's first ground for relief, the record reveals that petitioner was charged in an information alleging that petitioner had committed an act of bribery on February 29, 1968 in violation of Florida Statute § 838.011, F.S.A. The state's case against petitioner rested almost exclusively on the testimony of one Charles Celona, a former Dade County Deputy Sheriff. The transcript of the trial reveals that Celona testified that he was a plainclothes vice officer for 10 years whose duties were to enforce the gambling and prostitution laws of the state; that after the beginning of 1966 he started "protecting" the lounges in Dade County against arrests for prostitution in return for money; that one of the first lounges he "protected" was the Bonfire Lounge, where the petitioner was employed as a Maitre d'; that pursuant to a deal with Radio Winer, owner of the Bonfire Lounge, he picked up money bi-monthly in return for the "Protection;" that on one occasion, February 29, 1968, he came to the lounge and picked up the money from the petitioner; that on dates prior and subsequent to February 29, 1968 he visited the lounge and picked up money from petitioner pursuant to this agreement.

The admission of evidence of prior and subsequent payments was upheld on direct appeal as relevant evidence tending to prove a common scheme or plan under the authority of Williams v. State, 110 So.2d 654 (Fla.1959). It is clear that such evidence was properly admitted for this purpose. Petitioner's objection that the general verdict of the jury precludes a determination of the specific crime he was convicted of is without merit in view of the clear testimony concerning the bribe received by Celona on February 29, 1968.

Petitioner's second ground for relief centers around two comments made by the prosecutor in summation to the jury. The record reveals the following remarks made by the prosecutor:

Yesterday, I read to you in my opening statement this information and it set forth certain basic material facts to be established. I assure you his Honor will go over again with you the basic or material facts to be established in this case against Tony Giamo, this Defendant, and I assure you if Mr. Fine's argument was correct— that we have failed to prove some material allegation of this information, you would not be hearing me now. The Judge would be.

MR. FINE: I don't think that is proper.

MR. DAVIS: I think it is proper argument. He attacked the material allegations of the complaint. I think we can explain to the jury that he moved the Court to dismiss and the Court has not dismissed. It is a jury question.

MR. FINE: I have a motion.

THE COURT: Please take the jury out.

(Thereupon, the jury retired from the courtroom.)

* * * * * *

THE COURT: Ladies and gentlemen of the jury, you have heard some reference made to questions of law, which may have been gone into with Court and with counsel, both in and out of your presence. You are not to concern yourselves with those arguments on law, or the outcome of such arguments.

You are only to concern yourselves with the testimony which you have heard, the evidence which you have received and the instructions which I will give you shortly. You may proceed.

* * * * * *

MR. DAVIS: The defense counsel has talked about this information and about Robert Egan signing it. He read the last part on this page, but he didn't happen to go over to the last page. He just happened to forget about it. That is the part which says that Robert Egan, being first duly sworn, says this is based upon an indictment of the Grand Jury of Dade County, Florida.

Twenty-three people believed Charles Celona. That's how this information got—are you going to make a motion?

MR. FINE: Yes.

THE COURT: There is no motion necessary. Again, I ask you not to consider the statement

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