Lozano v. State, 90-217

CourtCourt of Appeal of Florida (US)
Writing for the CourtBefore SCHWARTZ; PER CURIAM
Citation584 So.2d 19
Parties16 Fla. L. Weekly D1673 William LOZANO, Appellant, v. The STATE of Florida, Appellee.
Docket NumberNo. 90-217,90-217
Decision Date25 June 1991

Black & Furci, and Roy E. Black, and Marisa T. Mendez, Miami, for appellant.

Robert A. Butterworth, Atty. Gen., and Richard L. Shiffrin, Sp. Asst. Atty. Gen., for appellee.



Appellant, William Lozano (Lozano), appeals his convictions and sentences on two counts of manslaughter. We reverse for a new trial.


Lozano was employed as a City of Miami police officer. On the day of the incident giving rise to the convictions, and unknown to Lozano, Clement Lloyd (Lloyd) and Allan Blanchard (Blanchard), two males riding a motorcycle, were committing a traffic infraction some distance away. Another police unit attempted to stop the motorcycle to issue a citation, but it sped away and a chase ensued.

The police unit followed the motorcycle as it travelled in the direction of Lozano. As the chase neared Lozano's location, Lozano and his partner could hear the siren of an approaching police vehicle, and could even see the flashing emergency lights.

As the vehicles approached, Lozano stepped into the street on which the vehicles travelled. Within seconds, the driver and passenger of the motorcycle lay dead: Lloyd, the driver, shot by Lozano; Blanchard, the passenger, dead from the resultant crash.

Within minutes, the neighborhood erupted into civil disturbances. Normal police procedures could not be followed. The scene of the shooting was not preserved, and vital physical evidence was lost.

The riots were extensively reported by the media. The media coverage was further increased by the presence of national and international reporters in Miami to cover the Super Bowl. The Miami riots became world news.

Because of the extensive media coverage and the facts that violence had followed both the incident itself and prior acquittals in similar so-called police brutality cases, Lozano sought a change of venue. In support of his motion for that relief, he provided the court with more than 375 affidavits, 500 newspaper articles, as well as with other supporting exhibits.

Lozano also sought a hearing on the motion, in order to present live testimony regarding the widespread concern over the prospect of unrest in the area if there were verdicts of not guilty. The trial court denied the motion for a change of venue, and it denied Lozano a full-scale hearing on the motion. The case proceeded to trial.

During pretrial motions, the State sought to exclude evidence of past criminal acts by Lloyd, and drug use and drug possession by Blanchard. The trial court granted the State's motion, and precluded the defense from presenting any collateral crimes evidence relating to the victims.

Lozano sought to exclude from the trial evidence, testimony regarding police departmental policies on the use of deadly force. This testimony tended to show that Lozano violated the police department's policy prohibiting shooting at a moving vehicle. The trial court denied Lozano's motion in limine and permitted the State to present evidence of police policy, rules, and regulations.

Because this evidence was admitted, Lozano sought a jury instruction which would include a special instruction on the justifiable use of force by a police officer. The trial court denied the specially requested jury instruction. Instead, the trial court gave the standard jury instructions pertaining to the use of force by law enforcement officers, and to self-defense.


We hold that the evidence was amply sufficient to support the verdicts, and therefore reject Lozano's contention that he is entitled to an acquittal as a matter of law. However, we find that errors committed by the lower court require that a new trial be conducted.


Appellant contends that the failure to grant the motion for a change of venue, and the denial of a hearing on the motion, constitute an abuse of discretion. Appellant argues that such abuse deprived him of a fair trial. 1

The courts of this State have steadfastly held to two major principles: (1) that the application for a change of venue is addressed to the sound discretion of the trial court; 2 and, (2) that in determining a motion for a change of venue, of utmost consideration [A] determination must be made as to whether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely on the evidence presented in the courtroom.

                is whether the defendant can obtain a fair and impartial trial. 3  In addressing these two considerations, the Florida Supreme Court stated

Manning v. State, 378 So.2d at 276 (citing McCaskill v. State, 344 So.2d 1276 (Fla.1977)).

In determining the necessity for a change of venue, the court:

Must liberally resolve in favor of the defendant any doubt as to the ability of the State to furnish a defendant a trial by fair and impartial jury.

Singer v. State, 109 So.2d at 14.

Where the evidence presented reflects prejudice, bias, and preconceived opinions, the trial court is bound to grant the motion. Manning v. State, 378 So.2d at 276.

The State correctly sets forth the test for judging a claim of prejudice in a denial for a change of venue:

[T]he defendant has the burden of coming forward and showing that the setting of the trial is inherently prejudicial because of the general atmosphere and the state of mind of the inhabitants of the community.

Manning v. State, 378 So.2d at 276; see Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975).

This case also invokes the doctrine, founded upon the Sixth Amendment right to an impartial jury, that every criminal defendant is entitled to a trial free of prejudice inherent in the circumstances which present an "unacceptable risk ... of impermissible factors coming into play." Estelle v. Williams, 425 U.S. 501, 505, 96 S.Ct. 1691, 1693, 48 L.Ed.2d 126, 131 (1976); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543, rehearing denied, 382 U.S. 875, 86 S.Ct. 18, 15 L.Ed.2d 118 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Woods v. Dugger, 923 F.2d 1454 (11th Cir.1991); Norris v. Risley, 918 F.2d 828 (9th Cir.1990).

Applying these principles, we must conclude that even the limited, yet uncontroverted, evidence presented by Lozano required a holding that the case could not then be fairly tried in Dade County. 4 We simply cannot approve the result of a trial conducted, as was this one, in an atmosphere in which the entire community--including the jury 5--was so obviously, and, it must be said, so justifiably concerned with the dangers which would follow an acquittal, but which would be and were obviated if, as actually occurred, the defendant was convicted. Surely, the fear that one's own county would respond to a not Although we find that the circumstances at the time of trial were such that the trial court erred in not granting a change of venue at that point, we do not mandate a transfer of venue after remand. Instead, that question will be resolved below, after hearing, on the basis of the conditions existing at the time of any such motion.

guilty verdict by erupting into violence is as highly "impermissible [a] factor," Estelle v. Williams, 425 U.S. at 505, 96 S.Ct. at 1693, as can be contemplated. Surely too, there was an overwhelmingly "unacceptable risk," Turner v. Louisiana, 379 U.S. 466, 473, 85 S.Ct. 546, 550, 13 L.Ed.2d 424, 429 (1965), of its having adversely affected Lozano's--and every citizen's--most basic right under our system: the one to a fair determination of his guilt or innocence based on the evidence alone. The trial court's failure to grant the motion for a change of venue, therefore, mandates reversal for a new trial. 6


Addressing the issues likely to arise in the new trial required by this opinion, we hold:

1. State's Motion in Limine--The State's motion in limine sought to exclude the introduction of evidence regarding Lloyd's previous drug arrests, and Blanchard's drug possession and use. The trial court granted the motion as far as Blanchard's possession of marijuana, and Lloyd's arrests. The trial court did not, however, limit evidence about Lloyd's use and possession of drugs.

A defendant who asserts that he acted in self-defense, must lay a proper foundation before presenting evidence of the victim's character. E.B. v. State, 531 So.2d 1053 (Fla. 3d DCA 1988). The victim's character becomes relevant to resolve an issue as to the reasonableness of the defendant's fear at the time of the incident. E.B. v. State, 531 So.2d at 1054.

Evidence of a deceased's violent character is admissible if an issue exists as to whether the victim was the first aggressor, or the reasonableness of the defendant's belief concerning imminent danger from the deceased. Burk v. State, 497 So.2d 731 (Fla. 2d DCA 1986).

Evidence regarding prior arrests and bad acts of a victim is also admissible to show a reasonable apprehension of harm on the part of the defendant. Taylor v. State, 513 So.2d 1371 (Fla. 2d DCA 1987). However, evidence of prior arrests and bad acts is not admissible where, as here, a defendant has no knowledge of the matters sought to be introduced. See Mozqueda v. State, 541 So.2d 777 (Fla. 3d DCA 1989); Taylor v. State, 513 So.2d at 1372; see also Sanchez v. State, 445 So.2d 1 (Fla. 3d DCA 1984).

We find no error because we find no relevance between Blanchard's possession of marijuana and...

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