Matera v. State

• Decision Date: 21 January 1969
• Docket Number: 67-806,Nos. 67-575,s. 67-575
• Parties: John MATERA and Gennero GALTIERI, Appellants, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 180

218 So.2d 180

John MATERA and Gennero GALTIERI, Appellants, v. The STATE of Florida, Appellee.

Nos. 67-575, 67-806.

District Court of Appeal of Florida, Third District.

Jan. 21, 1969.

Rehearing Denied Feb. 20, 1969.

Milton E. Grusmark, Miami Beach, Philip Carlton, Jr., Miami, and Louis Vernell, Miami Beach, for appellants.

Earl Faircloth, Atty. Gen., and Harold Mendelow, Asst. Atty. Gen., for appellee.

Before BARKDULL, HENDRY and SWANN, JJ.

PER CURIAM.

The appellants were tried and found guilty by a jury of the crime of robbery. These appeals, which were consolidated for appellate purposes, are taken from the judgment of conviction and sentence of the two appellants. They have presented six points on appeal, contending that reversible error was committed at various stages of the pretrial and trial proceedings. We shall examine these points in the order in which they occurred, rather than the order in which they have been presented on appeal.

In the course of all the proceedings, counsel for the appellants sought numerous continuances by motion to the trial court. These were denied, and the appellants now contend that two of these denials were abuses of the court's discretion. The robbery occurred on March 31, 1966, at the Harbor Island Spa. After the filing of the first information on April 15, 1966, but before the trial commenced, a series of discovery motions were filed by the appellants and granted in part by the court. The state filed a total of four informations in this case. The first was quashed by the state in September, 1966, at which time the second information was filed. On February 20, 1967, counsel for the appellant Galtieri filed discovery motions directed to that information. The state then quashed the information and then filed a third information on March 14, 1967, which was identical to the second one except for the addition of a third co-defendant. Again, counsel for Galtieri directed discovery motions to the third information, which were granted on March 21, 1967, the trial court allowing the state ten days to respond to the defendant's bill of particulars.

On March 24, 1967, the state quashed the third information and filed a fourth information, which differed from its predecessor in several non-essential details and also particularized in part the subject matter of the robbery. Then, on March 31, the state, still not having responded to defendant's bill of particulars, was granted a fifteen day extension of time in which to so respond. On April 17, 1967, both the appellants filed additional discovery motions directed to the fourth information. These motions were again granted although the state responded by requiring the defendants to secure a court order as to the manner of inspection of tangible evidence it held. This response was pursuant to § 925.04 Fla.Stat., F.S.A., and although not common practice within the criminal bar, did not constitute an act of bad faith. The state did, however, on April 19, furnish a list of the names of its witnesses; a response declaring that it had no signed or unsigned statements of the defendants pertinent to the case; and an additional response to the defendants' motion for a bill of particulars consisting of written answers to questions regarding custody of stolen cash, the nature of an assault on one of the witnesses, and information as to additional witnesses.

Asserting that the state had been dilatory in its tactics and responses, the appellants moved for a continuance from the pending trial date of May 2, 1967, by a motion filed April 26, 1967. That same day, a hearing was held by the court on all pending motions, which included previous discovery motions plus the motion for continuance. At the conclusion of this hearing, the court decided to deny the motion for continuance, thus maintaining May 2 as the date for trial. ¹

Appellants now contend that this denial of continuance was an abuse of discretion and constitutes reversible error. On the other hand, the state argues that its responses were always made in good faith, and in strict accordance with the law. Moreover, our attention is drawn to the general rule that the trial judge is vested with broad discretion in matters of a requested continuance, and by virtue of his closeness and intimacy with the circumstances of the case, he will not be reversed on appeal unless there is a clear showing of a palpable abuse of this judicial discretion. Acree v. State, 1943, 153 Fla. 561, 15 So.2d 262; § 916.02(2) Fla.Stat., F.S.A. After close scrutiny of the record, we are in accord with the state's position that the trial court's action was not an abuse of its discretion.

Defendants made another motion for continuance on May 17, 1967, after voir dire, but before the actual commencement of the trial. The basis for the motion was that defense counsel had not had enough time in which to prepare a defense because of deliberate misrepresentations by the state as to the whereabouts of certain witnesses, and also because of the unavailability of certain defense witnesses. The court denied this motion. After searching the record, we must again rely on the aforementioned rule which vests a trial court with broad judicial discretion in matters of continuances, and therefore find no reversible error on this issue. As was said in Shepherd v. State, Fla.1950, 46 So.2d 880, 885:

'Frequently the minds of reasonable men differ on what constitutes sufficient time to prepare for trial. The answer is found in the facts of each particular case.'

Appellants have based a second point of their appeal on the contention that two of the jury members were disqualified to serve, and therefore the jury's verdict was void. The appellants' premise was that the two jurors in question were held over at the expiration of their seven day term as veniremen, and ultimately sworn in as members of the trial jury nine days after they had been called as prospective jurors. The procedure for holding over prospective jurors is set forth in § 40.41 Fla.Stat., F.S.A., which states:

'Petit jurors shall serve for one week only, unless the circumstances in the opinion of the judge, requires such jurors to serve for a longer time.'

We hold that the discretion given a trial judge by this statute was not abused in this case, and find no error in the court's handling of the selection of the jurors.

A third point on appeal is whether the court was in error when it admitted certain testimony of one of the witnesses. During the trial, the court called as its own witness Bruce Braverman who at the time was incarcerated in the state of New York. Initial questions were posed by the court regarding Braverman's knowledge of the defendants, and/or the crime. In response, the witness testified that he had no such knowledge. At this point, the state began its cross-examination, utilizing a transcript of the minutes taken at one of two ² New York grand jury appearances by Braverman. This transcript contradicted the witness's earlier testimony, and the state proceeded to impeach Braverman by reading long excerpts over the objection of the defense. The record discloses a lengthy argument of law by the...