Mendoza v. State, 84370

• Decision Date: 16 October 1997
• Docket Number: No. 84370,84370
• Citation: 700 So.2d 670
• Parties: 22 Fla. L. Weekly S655 Marbel MENDOZA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 670

700 So.2d 670

22 Fla. L. Weekly S655

Marbel MENDOZA, Appellant, v. STATE of Florida, Appellee.

No. 84370.

Supreme Court of Florida.

Oct. 16, 1997.

Rehearing Denied Dec. 11, 1997.

John H. Lipinski, of the Law Offices of John H. Lipinski, Miami, for Appellant.

Robert A. Butterworth, Attorney General and Randall Sutton, Assistant Attorney General, Miami, for Appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing a death sentence upon Marbel Mendoza. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm.

Appellant asked Humberto Cuellar to participate in robbing Conrado Calderon, who owned a mini-market. Humberto asked his brother, Lazaro Cuellar, to act as the getaway driver. The three men observed Calderon's morning routine at his house in Hialeah. Then, before dawn on the morning of March 17, 1992, the three drove to Calderon's house where they stopped and waited. When Calderon appeared at his front door at 5:40 a.m., Humberto and appellant hid behind a hedge. Appellant carried a .38 caliber revolver, and Humberto carried a 9 mm automatic pistol. As Calderon left his house and approached his Ford Bronco, Humberto and appellant approached Calderon from the rear and held him in Calderon's driveway between his Ford and Cadillac automobiles. During the ensuing struggle, Humberto used his gun to hit Calderon on the head. Calderon took out a .38 special revolver and shot Humberto in the chest. The injured Humberto ran to Lazaro's car. As he ran, Humberto heard other shots. Less than a minute later, appellant arrived at Lazaro's car and told Humberto that appellant had shot Calderon. No money was taken. The three drove to a hospital in Hialeah. On the way, appellant told Humberto to say that Humberto had been shot by someone who had robbed him.

At the hospital, police recovered Lazaro's car containing Humberto's 9 mm automatic pistol. The pistol was still fully loaded and had hair embedded in the slide, which was consistent with the gun having been used to hit someone on the head. The same day, Humberto was taken to the Hialeah Police Station, where he gave a sworn statement that matched his later testimony for the State. When appellant was arrested on March 24, 1992, he had shaved his head and moved out of his normal residence. Items recovered from the scene included a bank bag, which was under the victim and contained $2,089, and other cash which was in Calderon's pockets and wallet. Appellant's fingerprints were found on Calderon's Cadillac, adjacent to where Calderon's body was found. Calderon's gun was found under his body. Casings and bullets were recovered from the scene and from the victim's body. An x-ray of Humberto showed that the bullet lodged near his spine was consistent with Calderon's .38 special. Three of the four .38 caliber shots that hit Calderon were fired from point-blank range, and the last was fired from less than six inches away.

Lazaro Cuellar pled guilty to manslaughter, conspiracy, and attempted armed robbery and was sentenced to ten years in state prison. He did not testify at appellant's trial. Humberto Cuellar pled guilty to second-degree murder, conspiracy, attempted armed robbery, burglary, and use of a firearm in the commission of a felony. He was sentenced to twenty years in state prison. Humberto testified as an eyewitness for the State at appellant's trial. Appellant was convicted of first-degree murder, conspiracy to commit robbery, attempted armed robbery, armed burglary with an assault, and possession of a firearm during the commission of a felony. By a seven-to-five vote, the jury recommended the death penalty. The court imposed a sentence of death after finding the following aggravating factors: (1) appellant was previously convicted of a violent felony; and (2) the murder was committed while appellant was engaged in the commission of a robbery and for pecuniary gain (merger of aggravators). The court considered the mitigating evidence presented but found no mitigating circumstances after giving little weight to appellant's alleged drug use and minimal weight to his mental health claims as nonstatutory mitigation. Appellant appeals his first-degree murder conviction and sentence of death, raising nine issues. ¹

Appellant first claims that the evidence presented at trial was insufficient to convict him for burglary as an underlying felony of his felony-murder conviction. He argues that no proof of burglary was presented because appellant never entered an enclosed area of Calderon's property which would qualify as a curtilage and subject appellant to a burglary charge under section 810.02, Florida Statutes (1991). We do not decide whether the State proved the elements of burglary because the State proved beyond a reasonable doubt that appellant committed the underlying felony of attempted armed robbery. In Kearse v. State, 662 So.2d 677 (Fla.1995), we held that any failure to prove the underlying felony of escape was harmless beyond a reasonable doubt in light of the evidence establishing felony murder based on the underlying felony of robbery. Id. at 682. Similarly, proof of appellant's underlying felony of attempted armed robbery is sufficient to support his felony murder conviction.

Next, appellant argues that the trial court erred in granting the State's request to admit as substantive evidence the prior sworn statement of eyewitness Humberto Cuellar after the defense used selected parts of Humberto's prior statement in attempting to impeach his trial testimony. We disagree. When one party presents part of a prior written or recorded statement, an adverse party may have the remainder of the statement introduced into evidence in the interest of fairness. § 90.108, Fla. Stat. (1991). This rule is known as the "doctrine of completeness," and its purpose is to avoid the potential for creating misleading impressions by taking statements out of context. Larzelere v. State, 676 So.2d 394, 401 (Fla.1996). Such determination of fairness falls within the discretion of the trial judge and is not to be disturbed absent an abuse of discretion. Id. at 402. Our review of the record reveals no abuse of discretion in the trial court's admission of the prior sworn statement of Humberto Cuellar. During the trial, defense counsel attempted to impeach Humberto's testimony by asking him about alleged inconsistent statements Humberto made as part of his overall sworn statement to police after the murder of Calderon on March 17, 1992, the day of the crime. The State informed the trial court that defense counsel's reading of random parts of the statement was likely to leave the jury with the mistaken impression that Humberto's prior sworn statement differed substantially from his trial testimony. The trial court then admitted the previous sworn statement insofar as it was consistent with the trial testimony. Under the circumstances, the prior statement was admissible under section 90.108, Florida Statutes (1991). Accordingly, we find no error in the trial court's admission of the prior statement.

As to his third issue, appellant argues that the trial court erred in denying his motion for mistrial following the court's out-of-court communications with jurors. The basis of this claim is the following comment by the court to the attorneys during the State's presentation of its case:

THE COURT: The state is taking the witness outside. J.R. mentioned about the communication, and I was thinking that I should have mentioned to all of the lawyers, when I was having lunch the jurors sat down about two tables away from me. One juror said, "Why aren't we allowed to ask questions?"

I simply told them if they have any questions to write them down at the end of the trial to see if they can be answered. I told them if they had any questions during the trial in terms of things that they should know that they should write them down, like I told them here in court.

Additionally, one juror gave me two shots of Cuban coffee and asked me if I wanted it with my lunch.

I am telling you these things because they happened at lunch and you should be aware so it doesn't come out later, something about an ex parte communication.

Thirdly, one juror said do I have any opinion on the Tonya Harding case, and I said, "You have to be fair and impartial and you have to wait until you hear everything."

Other than that, I read my newspaper and ate my lunch.

I just wanted you to be aware that that occurred.

First, we point out that this communication does not fall within the scope of Florida Rule of Criminal Procedure 3.410, which provides that if, after the jury retires to consider the verdict, the jurors request additional instructions, such instructions shall be given only after notice to the prosecuting attorney and to counsel for defendant. Fla. R.Crim. P. 3.410. See Hitchcock v. State, 413 So.2d 741, 744 (Fla.1982). These comments were made during the type of normal encounter between a judge and a jury which is likely to occur during a trial recess. In the courthouse in which this trial took place, the dining area is necessarily used by both the judge and jurors during a trial. Thus, the judge and jurors cannot avoid encountering one another outside the courtroom. It would be unrealistic and wrong for us to instruct a judge not to respond at all to jurors who ask questions during such encounters. Rather, we expect a judge to respond to jurors with no more than minimal, courteous answers. In this case, the record of the judge's response reflects exactly the course we would expect a trial judge to take. The judge replied as succinctly and as innocuously as common courtesy permitted under the circumstances. Shortly thereafter, the court put the encounter into the record so that the parties and the reviewing court would be aware of what had occurred. Accordingly, we find no error.

Finally, even if we considered the judge's comments to be error,...