Lopez v. State
| Decision Date | 31 August 1977 |
| Docket Number | No. 77-179,77-179 |
| Citation | 349 So.2d 1198 |
| Parties | Rafael LOPEZ, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Thomas J. Hanlon, Tampa, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
Rafael Lopez, also known as Pedro Lovaina Duran, was convicted of aggravated battery and sentenced to fifteen years in prison, with credit for time served prior to sentencing. He appeals, contending the trial court erred in denying his right to elicit testimony from his co-defendant who invoked the fifth amendment and declined to testify. We find no reversible error; we affirm.
In October of 1975 appellant Lopez and Luis Libed were charged by the same information with aggravated battery for allegedly cutting Mahmoud Badran with a knife. The prosecution resulted from an incident which occurred in the parking lot of a restaurant in Hillsborough County. Charges against the two co- defendants were severed. Lopez was to be tried first with Libed scheduled to go on trial several days later.
At Lopez' trial in December of 1975, the complaining witness, Badran, testified that Lopez and another man (presumably Libed) had started the trouble and had been the aggressors in the incident. After the state rested, the defense called Libed as its first witness. Libed's attorney stepped forward and informed the court that his client would invoke his right not to testify on the grounds of self-incrimination and would refuse to answer any questions concerning the knifing incident. A conference involving Libed's attorney, Lopez' attorney, the state attorney, and the trial judge culminated in a ruling by the court that since Libed was charged under the same information for the same offense, he could not answer any questions that defense counsel might pose. Lopez' counsel objected, contending there had not been a proper predicate for Libed to invoke the Fifth Amendment.
Lopez subsequently took the stand in his own defense and claimed that the complaining witness, Badran, was the aggressor, and that he was merely protecting himself. On appeal Lopez argues it was error for the trial court not to require Libed to testify, as Libed was the only person who could confirm the veracity of his testimony and the falsity of the allegations made by the complaining witness.
Appellant contends that the trial judge incorrectly allowed Libed's counsel to be the judge of whether Libed should testify. Appellant argues that the trial court should have first inquired directly of Libed and then made his own independent determination of whether there was a basis for Libed to exercise his right to remain silent. Appellant points to this court's opinion in Talavera v. State, 227 So.2d 493 (Fla.2d DCA 1969), quashed in part on other grounds, 243 So.2d 595 (Fla.1971), holding that a trial judge should grant a severance to a defendant to afford him the right to compulsory process against his co-defendant. There Judge McNulty said:
A witness's refusal to answer under the 5th amendment privilege will only be sustained where it appears from the questions and...
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Suarez v. State, 65260
...voir dire is not required when it would constitute "an idle exercise of judicial labor to indulge in such inquiry." Lopez v. State, 349 So.2d 1198, 1199 (Fla. 2d DCA 1977), cert. denied, 359 So.2d 1216 at the fleeing suspects. Attorneys for Reyes and Sory objected, stating that their client......
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Town v. Reno
...to incriminate, or provide a link in the chain of evidence, State ex rel. Feldman v. Kelly, 76 So.2d 798 (Fla.1954); Lopez v. State, 349 So.2d 1198 (Fla.2d DCA 1977); Holmes v. State, 311 So.2d 780 (Fla.3d DCA 1975); Talavera v. State, 227 So.2d 493 (Fla.2d DCA 1969), the order under review......
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Baker v. State, 82-2255
...3d DCA 1980); Brinson v. State, 382 So.2d 322 (Fla. 2d DCA 1979); King v. State, 353 So.2d 180 (Fla. 3d DCA 1977). Cf. Lopez v. State, 349 So.2d 1198 (Fla. 2d DCA 1977). ANSTEAD, C.J., and GLICKSTEIN, J., WALDEN, J., dissents with opinion. WALDEN, Judge, dissenting. In my opinion the trial ......
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Wickham v. State, No. SC05-1012 (Fla. 9/25/2008)
...make a direct inquiry regarding a witness's claim of the Fifth Amendment privilege. See id., 481 So. 2d at 1208; Lopez v. State, 349 So. 2d 1198, 1199-1200 (Fla. 2d DCA 1977). However, when the patent facts within the four corners of the case clearly support the court's conclusion that a wi......