Huhn v. State

• Decision Date: 08 April 1987
• Docket Number: No. 85-1471,85-1471
• Citation: 12 Fla. L. Weekly 2254,511 So.2d 583
• Parties: 12 Fla. L. Weekly 2254, 12 Fla. L. Weekly 975 Eduardo HUHN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 583

511 So.2d 583

12 Fla. L. Weekly 2254, 12 Fla. L. Weekly 975

Eduardo HUHN, Appellant, v. STATE of Florida, Appellee.

No. 85-1471.

District Court of Appeal of Florida Fourth District.

April 8, 1987.

On Motion for Rehearing Sept. 16, 1987.

Marc Cooper and Sharon L. Wolfe of Cooper, Wolfe, & Bolotin, P.A., Miami, and Donald L. Ferguson, Coconut Grove, for appellant.

Robert A. Butterworth, Jr., Atty. Gen., Tallahassee, and 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 aggravated assault with a firearm. We reverse and remand for new trial because the errors by the prosecutor and the trial court were not harmless. In the opinion we shall refer to appellant's codefendants in Biscardi v. State, 511 So.2d 575 (Fla. 4th DCA 1987), a decision issued today, and in Mones v. State, a PCA reported in 485 So.2d 9 (Fla. 4th DCA 1986).

The record reflects a bizarre scenario. A 911 call was received by the Broward County Sheriff's Department Communications Division at approximately 3:15 a.m. on February 5, 1984. The caller reported that he was going to be killed; that he was handcuffed to a table; that three men were involved, two of whom were not there at the time, and that the men were armed. Miramar police were dispatched to the location. The door was answered by codefendant Biscardi, who stated everything was fine, and that the person inside was drunk. Yells for help were heard from inside. Inside the house the police found the victim handcuffed to a table, screaming for help. Biscardi then told the police that he did not know what to do now, as he was only doing this as a favor. The victim and the said codefendant were taken to the Miramar police station.

According to state witness Sergeant Mantesta, of the Miramar police, Biscardi told the police at the station that he was "a dead man" for failing to tape the victim's mouth, and that he was in trouble with the "big guys"; the "guys" were to return at 11 a.m. to kill the victim, and that they were capable of doing anything. A later search of the codefendant's house produced a receipt from the Avis office at the Orlando airport for a blue four-door Chevy sedan.

Nick Fiola, the victim, testified that he and Biscardi had driven cocaine to California and the payment money back to Miami--all for Huhn. Fiola admitted to making six such "drug" trips. Fiola also decided to "rip off" the drug payment money on the way back to Miami. To this end, he plotted in 1983 with "Carl" and "Paul" whom he had met at Jimmy Varone's service station. However, at that time the plan was abandoned. Before his last drug trip, Fiola, who actually saw the cocaine he and Biscardi were to transport (because Fiola had to pack it in the car) again plotted with Carl to rip off the drug money. This plan was successful. The car with the drug money was stolen at the Turkey Lake Service Plaza, where Fiola and Biscardi stopped on their return from California. Biscardi was taken with the car. Fiola waited a while at the rest area, and he was called by the highway patrol, who located Biscardi at turnpike exit 75. The highway patrol looked for the stolen car but did not find it. The highway patrol must have taken Fiola to that exit, as Fiola testified he and Biscardi took a cab from there to the airport to rent a car. Then they drove the rented car to Fort Lauderdale airport so that Fiola could pick up his car. Biscardi instructed Fiola to drive past Biscardi's home, and if defendant Huhn's car was there, Fiola was to stop and come in. Huhn's BMW was there, so Fiola stopped and went in. Huhn was there. He threatened to kill Fiola and Biscardi with a gun unless they found his money, then sent Biscardi and the victim back to Orlando to try to find the car that had been stolen. The two looked at different hotels in the area, but could not find the car, so they went home, afraid Huhn was going to kill them.

Biscardi refused to allow Fiola to go home. When Fiola attempted to leave, Biscardi produced a small pistol and ordered Fiola into Biscardi's house to await Huhn. Fiola was eventually handcuffed to the table, repeatedly threatened, and held for two days.

Huhn got the handcuffs from one of the other codefendants, put them on Fiola, then placed a gun to Fiola's head and said he was going to blow Fiola's brains out because Fiola had set up the "trick." Biscardi punched the victim in the face. Codefendant Mones threatened to chop the victim up and feed him to the fishes. Huhn handcuffed Fiola's right hand to the table and cuffed Fiola's feet together. Fiola's face was bleeding. Huhn threatened to kill Fiola and his family; and he also threatened to cut Fiola's son's arms and legs off. Fiola was scared by these threats and by Huhn's gun. Huhn wanted his money back, saying there was approximately $485,000 in the car.

Huhn and Mones left, with Fiola alone with Biscardi, who repeatedly exhorted Fiola to tell the truth, saying Fiola would not be harmed if Huhn got his money back. Biscardi even offered to pay Fiola $50,000 to tell him (Biscardi) who took the money. Finally, tired, exhausted and scared, Fiola told Biscardi that he had set up the theft whereupon Biscardi made a phone call, and in a half hour or an hour, codefendant Mones returned and questioned Fiola as to where the "guys" who took the car and the money lived. Fiola told Mones where Carl's shop was; and Mones left.

The next morning, Saturday, Huhn returned with Mones and another man. Huhn, who was armed, began interrogating Fiola, and threatened to kill Fiola, his son and his ex-wife. Mones instructed Biscardi to go to the kitchen and get a knife as he (Mones) was going to cut up the victim and throw him to the fish. The defendant grabbed one of Fiola's feet and took one handcuff off, and Biscardi gave a knife to Mones, who threatened to cut Fiola's leg off.

Fiola was moaning, so Huhn put a handkerchief in Fiola's mouth so he could not scream. Finally, Huhn dropped Fiola's foot, replaced the handcuff and again threatened to kill Fiola if he did not get in touch with somebody.

Fiola gave Huhn the phone number of Jimmy Varone, who was Fiola's only means of contacting Carl. They dialed the number and gave the phone to Fiola. Huhn held a gun to Fiola's head and threatened to kill him if he made a wrong move. Huhn had a pad or paper in his hand with instructions on what Fiola was to say to Varone. Fiola asked Varone to find Carl and to have Carl meet him, Fiola, at the shop the next morning. While Fiola was talking with Varone, Huhn grabbed the phone and threatened Varone, his family and his gas station. Fiola's conversation with Varone was being listened to by someone on the extension phone in the kitchen.

The "guys"--Huhn, Mones and the other man--left Biscardi's house about 11 p.m. Saturday evening; the last thing they told him was that he would be dead the next morning.

Later, when Fiola awoke, he found Biscardi asleep and snoring; so he got off the couch and managed to pull the coffee table along until he could reach the phone, from which he made the 911 call.

Fiola later identified the photograph of Huhn that Fiola had identified for the police.

A tape recording of Fiola's 911 call was played. On cross-examination Fiola admitted that for about six months he maintained that he did not know who the other people involved in his kidnapping (besides Biscardi) were. He had also denied knowing who the others were when he appeared at Biscardi's bond hearing.

Carl Lord of the state attorney's office testified that he took a handwriting exemplar from Huhn. Despite Mr. Lord's instructions to defendant Huhn to write in cursive or script, or his normal handwriting, the defendant printed. Huhn wrote very slowly and deliberately. Lord had him write out some of the numbers and phrases which were found on a document or piece of paper in Biscardi's house. Huhn asserted that printing was the only way he wrote.

Janine McKenzie, a latent print examiner for the Broward County Sheriff's Department, testified that she had identified Huhn's palm print from a latent print lifted off the coffee table in Biscardi's house, another palm print of Huhn from the dining room table in Biscardi's house, and another palm print of Huhn from a piece of paper found in Biscardi's house. Ms. McKenzie's identification was verified by Detective Ellery Richtarcik and by Sandra Yorkman, two other latent print examiners from the Broward County Sheriff's department.

Jimmy Varone corroborated Fiola's testimony regarding his plan to rip off the money, first in 1982 and then at the time the car was actually taken. Varone testified he received a call for help from Fiola, saying they were going to cut his legs off if Carl didn't give the money back. During this call someone else got on the phone and threatened Mr. Varone and his wife, and to blow up his house. The voice said there was a half-a-million dollars involved, and if Varone got the money for the caller, he (Varone) would get $200,000 for himself.

John Coffey of the Florida Department of Law Enforcement (FDLE), testified that he arrested Huhn in July 1984. Coffey identified a gun, and the receipt for its purchase, which he had removed from the glove compartment of the car in which Huhn was driving when he was arrested. Huhn objected to the testimony about the gun and moved for a mistrial, claiming it was prejudicial and unconnected with the alleged crime.

Ronald Dick, formerly a document examiner for Florida Department of Law Enforcement, testified that he was asked to compare the specimens taken of Huhn's handwriting, i.e., on checks, Alcohol, Tobacco and Firearm (AFT) forms, and his American Express credit card application, as well as with the writing on two envelopes found in Biscardi's home. Mr. Dick's opinion was that the same person who wrote the checks, the three AFT forms, and the American...