Kindell v. State, 78-1884

• Decision Date: 18 May 1982
• Docket Number: No. 78-1884,78-1884
• Citation: 413 So.2d 1283
• Parties: Janice Marie KINDELL, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1283

413 So.2d 1283

Janice Marie KINDELL, Appellant, v. The STATE of Florida, Appellee.

No. 78-1884.

District Court of Appeal of Florida Third District.

May 18, 1982.

Bennett H. Brummer, Public Defender, Robert R. Schrank and Elliot H. Scherker, Asst. Public Defenders and Bart J. Eagle, Legal Intern, for appellant.

Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.

Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.

NESBITT, Judge.

The defendant appeals her conviction of multiple offenses of aggravated assault with a deadly weapon committed upon Betty Jean Williams (Count I) and Wallace Hyman (Count II); felonious display of a firearm (Count III); and discharge of a dangerous weapon into an occupied dwelling (Count IV). The trial court stayed and withheld imposition of judgment and sentence but nonetheless ordered that the defendant be placed upon four five-year concurrent terms of probation with a special term and condition thereof, and with respect to Counts I and II, that she be imprisoned for three years.

It is the defendant's contention that during closing argument the prosecutor made an impermissible comment upon her right to silence. In the alternative, she argues the state adduced evidence of the defendant's failure to produce witnesses at trial and later exploited that improper issue by arguing it to the jury during summation.

We are of the view that because the matter was not properly preserved for appellate review it cannot serve as a basis for reversal.

The alleged error occurred during the state's examination of one of the arresting officers [through whom the state produced the defendant's confession] as follows:

PROSECUTOR: Did the defendant ever tell you that she was with two other women at the time this incident took place?

....

POLICE OFFICER: No. She didn't say anything about two other women.

During closing argument, the assistant state attorney made the following argument to the jury:

PROSECUTOR: One of the best defense witnesses in this case would have been the two people that were with the defendant when she was arrested.

Did you hear one word from either of those two people that were with the defendant when she was arrested? Were either of those people called?

DEFENSE COUNSEL: Objection, Your Honor, I move for a side-bar at this time.

THE COURT: Motion for a side-bar at this time denied. I will hear it later.

PROSECUTOR: Were either of those two witnesses called? Of course not. You did not hear any testimony from them, did you?

All they had to do was come in and say, "Yes. Janice was with us at the time this shooting happened. She could not have been where everyone else says she was ..."

Following completion of closing arguments, the jury was immediately instructed and retired to deliberate. At that point, the following transpired:

DEFENSE COUNSEL: If it please the Court, at this time in reference to my objection during the State's final argument, I would make a motion for mistrial.

At that point, I believe the State, and the record will bear me out, made reference to the fact why didn't the defense bring in the two people Janice Kindell was with, et cetera, et cetera. I believe that is totally uncalled for.

It reflects not only on the defendant's right to remain silent, that the defendant in this case did, in fact, remain silent. It is reversible error, Your Honor, in not allowing me to make my objection. You were not in a position to give a curative instruction. I believe at this point a mistrial should be granted.

THE COURT: You chose to do it at side-bar. Most counsel like to make their objections to the Court. Nothing was suggested about a curative instruction.

In fact, I did give them one. I told them the burden was not on you. Your client is presumed innocent. The burden is on the State.

DEFENSE COUNSEL: If I might respond?

THE COURT: I do not think it is necessary unless you want to put something on the record for later reading.

DEFENSE COUNSEL: Yes, Your Honor. That would be the purpose.

THE COURT: It is really not necessary.

DEFENSE COUNSEL: I felt at the time a side-bar could have been granted, should have been granted so that I could have requested a curative instruction.

I will state for the record I do not believe a curative instruction would have corrected what is harmful and prejudicial error.

THE COURT: All right, sir.

DEFENSE COUNSEL: May I have a ruling?

THE COURT: I deny it. I already denied it, counsel. [emphasis supplied]

We have been unable to locate any case directly holding that comments of this nature constitute an impermissible comment on the defendant's right to silence. However, assuming arguendo that it was such a comment, plainly, under the colloquy above recited, defense counsel did not make and save the point for appellate review either by timely objection, curative instruction, or motion for mistrial as required by State v. Cumbie, 380 So.2d 1031 (Fla.1980) and Clark v. State, 363 So.2d 331 (Fla.1978).

Nonetheless, the defendant contends here that, under the so-called doctrine of futility, it was unnecessary, in the posture of this case, to object because, after the jury had retired and the defendant's side-bar request had been heard, the trial court stated: "I already denied it, counsel." In Brown v. State, 206 So.2d 377 (Fla.1968), our Supreme Court recognized that an attorney is not required to present a written request for jury instructions where the court made it abundantly clear that it would not give the charge, whether requested in writing or not, stating:

A lawyer is not required to pursue a completely useless course when the judge has announced in advance that it will be fruitless.

206 So.2d at 384. Likewise, in Birge v. State, 92 So.2d 819 (Fla.1957), the trial court indicated that the presentation of nominal evidence would exclude the defendant's right to open and close before the jury and that an objection was unnecessary. There, Justice Thornal, speaking for the Court, stated:

While it is true that on appeal every reasonable presumption is extended in favor of the correctness of the ultimate judgment of the trial court and the burden is upon the appellant to show reversible error, nevertheless, it is certainly unnecessary that an accused undertake to accomplish an obviously useless thing in the face of a positive adverse ruling by the presiding judge. In this case the trial judge had clearly and specifically announced his ruling to the effect that the appellant would not be permitted the opening and closing arguments. This ruling was announced just before the State rested its case. [emphasis supplied]

92 So.2d at 822.

In both Brown and Birge, supra, the defense counsel's tactical request was made prematurely but the defendant's ultimate position had been virtually postured out so as to enable the trial court and opposing counsel to be fully apprised as to the defendant's position. To have required the defendant to timely and formally lodge a proper objection would have amounted to nothing more than to mandate the undertaking of an idle gesture. In the present case, defense counsel only requested a side-bar conference, which the trial court postponed until the jury had been instructed and retired to deliberate. The purpose of an objection is to enlighten the trial court concerning the proper direction and rulings that should be made by it during the course of a trial, thereby obviating prejudicial error and the necessity of a new trial. In this case, defense counsel did not enlighten the trial court concerning his ultimate position. The trial court's ruling was simply too ambiguous, when gauged by objective standards, to presume that the trial court knew or ought to have known of the defendant's objection contemporaneously with the prosecutor's improper tactics. Consequently, we reject the defendant's argument on this point.

Although a side-bar conference may be a preferable method for resolving a dispute of such a delicate nature, neither the state nor the defendant enjoys the right to side-bar conference. Unless counsel clears such a procedure in advance with the individual trial judge, they ordinarily must abide by the teachings of Clark v. State, supra, and lodge objections and requests for curative instructions contemporaneously with the improper comment. In the case of a motion for a mistrial, it may be made sometime during closing argument but, at the very latest, it must be presented before the jury retires to deliberate. State v. Cumbie, supra.

The defendant also claims that the evidence does not demonstrate that the victims, Williams and Hyman, were placed in fear of imminent bodily harm. State v. White, 324 So.2d 630 (Fla.1976). We disagree. The evidence showed that the defendant, who, at the time of the incident, was pregnant, became enraged because of an insulting remark from her former boyfriend. Due to her condition, she proclaimed her inability to fight and stated that she would leave and return with a gun. She did, in fact, leave the apartment. Upon her return, she approached the door and one of the victims heard her remark that she was going to start shooting if no one opened the door. Shots then penetrated the door striking both victims. A threatening weapon need not be viewed by the assaulted victim to give rise to a well-founded fear of violence. United States v. James, 452 F.2d 1375 (D.C.Cir.1971). The defendant's verbal threats, that she would deal with the victims upon her return and would start shooting if the door was not opened, constituted sufficient circumstances to warrant a reasonable inference in the minds of the intended victims that bodily harm was imminent. Gilbert v. State, 347 So.2d 1087 (Fla. 3d DCA 1977).

The defendant also contends that her conviction of felonious display of a firearm must be reversed because the elements necessary to sustain that charge also form the basis of her conviction of the separate charge of...