Lidiano v. State

• Decision Date: 24 October 2007
• Docket Number: No. 3D05-2898.,3D05-2898.
• Citation: 967 So.2d 972
• Parties: Roberto LIDIANO, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

967 So.2d 972

Roberto LIDIANO, Appellant, v. The STATE of Florida, Appellee.

No. 3D05-2898.

District Court of Appeal of Florida, Third District.

October 24, 2007.

Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.

Before RAMIREZ, ROTHENBERG, and LAGOA, JJ.

On Motion for Rehearing

ROTHENBERG, Judge.

We grant the appellant's motion for rehearing, withdraw our former opinion dated May 9, 2007, and substitute the following opinion in its stead.

The defendant, Roberto Lidiano, appeals from his convictions and sentences for two counts of attempted second degree murder. He claims that the trial court erred in denying his peremptory challenge of a juror, Emelia Abadin ("Ms. Abadin"), and in denying his motions for mistrial made during the testimony of the lead detective. We affirm.

The defendant was charged with the attempted first degree murders of Yoraidyl Rodriguez (Count 1) and Lorenzo Retureta (Count 2). Prior to trial, the trial court excluded Ms. Rodriguez as a witness based on the State's inability to locate her.

During jury selection, when defense counsel attempted to use a peremptory challenge to strike juror Ms. Abadin, the State requested that the defense proffer a race and/or gender neutral reason. In response, the defense stated that Ms. Abadin could not relate to the charged crimes because she lives in Kendall and the alleged crimes occurred in Hialeah; she had previously served on civil and criminal juries; and her nephew is an attorney. The trial court specifically noted that "Ms. Abadin is female, she's also Hispanic," and concluded that the reasons given by defense counsel for exercising his challenge to Ms. Abadin were not genuine and were pretextual. The record reflects that Ms. Wong, who is not Hispanic, was not challenged by the defense. Like Ms. Abadin, Ms. Wong responded that she was not from Hialeah. She lives in Palmetto Bay, which is located in the Kendall area. Also similar to Ms. Abadin, Ms. Wong responded that her two children are attorneys and the record reflects that she had previously served on a jury. The trial court disallowed the challenge, defense counsel accepted the jury subject to his objection to Ms. Abadin, and both Ms. Abadin and Ms. Wong sat on the jury which convicted the defendant.

The only eyewitness who testified against the defendant was one of the alleged victims, Mr. Retureta. Mr. Retureta testified that he is the owner of a restaurant/bar in Hialeah and the defendant was a regular customer who came in two to three times a week. On the evening of December 9, 2004, while the defendant was at the restaurant, he called Ms. Rodriguez, a waitress at the restaurant, a name, and when she slapped him, he threw a bottle at her. Mr. Retureta had the defendant removed from the restaurant. As the defendant was exiting, he warned that he would be back. The defendant returned to the restaurant and began shooting at Mr. Retureta, who tried to defend himself by throwing bottles at the defendant. The defendant then fired shots at Ms. Rodriguez and again at Mr. Retureta. When the police responded, Mr. Retureta described the incident but told the police that he did not know the person who had fired the shots. At trial, Mr. Retureta explained that this was untrue, that he did know the defendant, and that he had lied to the police because he had initially wanted to take care of the problem himself.

Mr. Retureta testified that, approximately five days after the shooting, the defendant returned to the restaurant and told him that he wanted to forget about the incident and "remain friends." When Mr. Retureta told the defendant that he could not be his friend, the defendant warned once again that he would be back. When Mr. Retureta realized he could not take care of the situation himself, as he had originally hoped, he called the police and spoke with Detective Elosegui, the officer who had originally investigated the shooting. Mr. Retureta provided Detective Elosegui with the defendant's first name, and he eventually was able to provide Detective Elosegui with the defendant's surname and the name of the car wash where he believed the defendant worked. Based upon the information Mr. Retureta provided to the police, a photographic line-up was prepared and shown to Mr. Retureta, who immediately positively identified the defendant as the shooter. The defendant was arrested, and after waiving his Miranda rights, he denied being in the restaurant on the night of the shooting or being involved. The defendant further claimed that he had never been in that restaurant and denied knowing anyone who worked there.

The jury found the defendant guilty of two counts of attempted second degree murder, the lesser included offense of attempted first degree murder, and the defendant was sentenced accordingly.

THE TRIAL COURT'S DENIAL OF THE DEFENDANT'S PEREMPTORY CHALLENGE

The defendant contends that the trial court erred in denying his peremptory challenge of Ms. Abadin. Specifically, the defendant argues that: 1) the trial court erred by finding that the proffered reasons were not genuine and were pretextual without engaging in an oral genuineness analysis and in not articulating the basis for the court's findings, and 2) the reasons proffered by the defense were genuine and non-pretextual.

We begin our analysis, as we must, from the perspective that recognizes that a trial court's decision to accept or reject an attorney's explanation for the peremptory challenge of a juror turns primarily on an assessment of the attorney's credibility, which must be affirmed on appeal unless clearly erroneous. Melbourne v. State, 679 So.2d 759, 764-65 (Fla.1996) ("[T]he trial court's decision [regarding peremptory challenges] turns primarily on an assessment of credibility and will be affirmed on appeal unless clearly erroneous."); Reed v. State, 560 So.2d 203, 206 (Fla.1990) (holding that trial judges are vested with broad discretion in determining whether peremptory challenges are racially motivated and "we must necessarily rely on the inherent fairness and color blindness of our trial judges who are on the scene and who themselves get a `feel' for what is going on in the jury selection process"); see also Watson v. State, 841 So.2d 659, 660 (Fla. 4th DCA 2003); Anderson v. State, 750 So.2d 741, 743 (Fla. 3d DCA 2000); Young v. State, 744 So.2d 1077, 1082 (Fla. 4th DCA 1999); Greene v. State, 718 So.2d 334 (Fla. 3d DCA 1998).

The defendant argues that the trial court erred in failing to orally perform a genuineness analysis and to articulate the basis for its ruling denying defense counsel's peremptory challenge of Ms. Abadin. We disagree.

The trial court is not required to orally perform its genuineness analysis or to articulate the basis for its ruling. While this court has previously held that "where the objecting party challenges the explanation as being pretextual, the trial court would be wise to articulate its finding of genuineness, or lack of genuineness, in order to facilitate appellate review," Davis v. State, 691 So.2d 1180, 1183 (Fla. 3d DCA 1997), it is clear that there is no requirement to do so. See Johnson v. State, 706 So.2d 401, 404 (Fla. 3d DCA 1998) ("There is nothing in Melbourne which requires trial judges to articulate their thought process on the issue of pretext."); Watson v. State, 841 So.2d 659, 661 (Fla. 4th DCA 2003); Sharp v. State, 789 So.2d 1211, 1213 (Fla. 5th DCA 2001). Thus, the trial court's failure to orally perform its genuineness analysis or to articulate its thought process in finding that the proffered reasons were pretextual and not genuine does not warrant reversal.

The defendant also argues that the reasons proffered by the defense were genuine and thus the trial court erred in denying its peremptory challenge of Ms. Abadin. In support, the defendant argues that the State's Neil/Slappy/Melbourne objection was based upon gender, and the record does not support a finding that Ms. Abadin was challenged by the defense due to her gender because the jury selected was comprised entirely of women. The record, however, reflects that the State's objection was based upon both Ms. Abadin's gender and her ethnicity, and that the record supports a finding that she was challenged by the defense based upon her Hispanic heritage.

DEFENSE: We'll exercise a strike on No. 6, Ms. Abadin.

STATE: We'll ask for a raise [sic] neutral, gender neutral reason based on the fact that she a[sic] protected class, she's a woman.

DEFENSE: We are talking about a different neighborhood. She's from Kendall. She's been on a jury before, not only in civil but criminal and an attorney for a nephew.

COURT: Ray Abadin.

DEFENSE: Yeah.

COURT: Practices in a civil trial firm, Abadin, Hyro, and I believe, his wife too.

DEFENSE: I know who he is. His son played basketball with my son. But they're from a different neighborhood. She also has prior jury experience not only on civil but in criminal cases and we didn't feel comfortable with her based upon those reasons.

COURT: Anything else?

DEFENSE: No Sir.

COURT: Ms. Abadin is female, she's also Hispanic. The Court finds that the reasons given for the exercise of the peremptory are not genuine and are pretextural [sic] and I'm going to deny that one. Any other's defense?

(Emphasis added).

It is clear from this exchange that the State's objection to defense counsel's challenge to this juror was based upon both her gender and ethnicity; the trial court understood that the objection was based upon both of these factors; and the trial court's finding was made after consideration of both Ms. Abadin's gender and her ethnicity.

As previously stated, the decision to deny a peremptory challenge requires an assessment of motive and credibility. Credibility is a matter solely within the purview of the...