Romero v. State, 4D02-5070.

• Decision Date: 27 April 2005
• Docket Number: No. 4D02-5070.,4D02-5070.
• Citation: 901 So.2d 260
• Parties: Liborio ROMERO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

901 So.2d 260

Liborio ROMERO, Appellant, v. STATE of Florida, Appellee.

No. 4D02-5070.

District Court of Appeal of Florida, Fourth District.

April 27, 2005.

Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

Liborio Romero appeals his criminal convictions for first degree murder and manslaughter in a double slaying. We affirm the denial of the defendant's motions for judgment of acquittal. However, we reverse and remand this case for a new trial, because the trial court erred in limiting the defendant's cross-examination of a state witness, and the state compounded the error by commenting on the excluded testimony during closing argument.

There were no witnesses to this double-homicide and very little physical evidence to shed any light on the killings. The state's theory was that the defendant killed both Galaciano Trujillo-Lopez (Galaciano) and Adan Cornejo-Cornejo (Adan) with his pistol after an evening of drinking, for motives that were unclear. The defendant asserted that Adan shot and killed Galaciano, after which the defendant attacked Adan with a pipe, retrieved the gun from him, and shot him in self-defense.

According to the state's evidence, Adan's wife, Linda Cornejo-Cornejo, drove Adan and his friend, Galaciano, to a cantina on the night of the shootings. Mrs. Cornejo-Cornejo and Galaciano's wife, Agueda Benitez, testified that the two men were good friends who never fought or argued. The owner of the cantina, Joaquin Dominguez, testified that Adan, Galaciano, and the defendant were drinking and "talking between them." At closing time, the three men left the cantina. The defendant's truck was parked in front. Within a few minutes after locking the door to the cantina, Dominguez heard a loud noise but saw nothing in the parking lot when he looked outside the window.

Upon leaving the cantina about thirty minutes later, Dominguez saw a body lying on the ground near the telephone booth in the parking lot. It was identified as the body of Adan. The body of Galaciano was found lying on the other side of the building. Both men had sustained gunshot wounds to the head.

The medical examiner testified that the cause of Galaciano's death was a gunshot wound to his face. Adan had two kinds of injuries. He had a gunshot wound to the top right side of his head and multiple mechanical injuries, bruising, abrasions, and lacerations on his right forehead, right brow, nose, right face, chest, left clavicle, neck, and left shoulder blade. The medical examiner testified that the implement used to inflict the mechanical injuries was long and blunt and forcefully applied. He thought the weapon was shaped like a broomstick, only heavier. His examination revealed that Adan was struck three times in the back and sustained four separate injuries to his face. The medical examiner opined that these mechanical injuries were inflicted before the shooting.

The crime scene investigator, Captain Noel Stephen, testified to finding two spent .22 caliber shell casings and one live.22 caliber shell at the crime scene. Forensic firearm's expert, Michael Kelley, explained that if one pulls back the slide of a semi-automatic pistol with an unfired cartridge in the chamber, it will be ejected where the shooter is standing. The unfired cartridge found at the scene had been cycled through the gun in this fashion based on the tool marks left on the unfired cartridge.

The defendant was stopped by police as he left home the morning after the murders. In his first taped statement taken that morning, the defendant said that he had drunk about eighteen beers during the previous evening. The defendant seemed surprised at news of the killings and asked if Galaciano was one of the men who died. He denied being at the scene and said that Adan and Galaciano left him in the parking lot. He could not explain how blood got on his truck.

The defendant consented to a police search of his home. He did not initially volunteer any information about the firearm. When Deputy Gonzalez told him that they found a .22 magnum shell in a dresser, the defendant claimed that he had thrown the gun away. After being asked several times, the defendant finally disclosed that the gun was hidden above a tile in the drop ceiling. Kelley testified that in his opinion the bullet recovered from Adan's head was fired from the gun found at the defendant's residence. The defendant was taken back to the police station, where he gave a second taped statement. In his second statement, he said that after the three men came out of the bar they went directly to his truck, where they sat for five to ten minutes before Galaciano and Adan got into an argument. He saw Adan reach under the middle of the front seat, where the defendant kept his gun. Adan and Galaciano exited the vehicle and continued arguing. He saw them in front of the truck, with Galaciano backing up. He got out and picked up a pipe he saw on the ground. At that point, Adan shot Galaciano in the face. The defendant came up behind Adan and hit him with the pipe to knock the gun out of his hand. When he grabbed and kicked Adan, he was able to retrieve the gun. Then, when Adan came back at him, he shot him. As discussed below, the defendant's version of these events varied as he related them to the police.

The defendant explained that he was drunk and did not have a license. With two dead men on the ground, he got nervous and drove to Arcadia. He then turned around and drove home.

In a second interview, the defendant stated (as translated by Deputy Gonzalez):

DEPUTY GONZALEZ: He says that when he parked in the driveway, he sat there and thought he ... didn't want to leave because he didn't want to have to run from the cops forever. He said that he ... understood that he made the error of killing the guy and now he's gonna have to pay for it.

LIEUTENANT SUTTLE: He—he said what?

DEPUTY GONZALEZ: He made the error of killing the guy and now he's gonna have to pay for it.

LIEUTENANT SUTTLE: Do you feel that you did anything wrong?

DEPUTY GONZALEZ: He says yes, he does.

LIEUTENANT SUTTLE: What does he feel—what do you feel that you have done wrong?

DEPUTY GONZALEZ: He says that he feels like he didn't have no reason to shoot him because he already had the gun in his hand. He says that—that he knows if [he] would have yelled at him, that [he] probably would have taken off running. But he says the alcohol and everything, he said by the time he did it, he already knew it was too late and when he noticed it was too late, it was too late.

At trial, the defendant testified consistent with his second statement to the police. He also testified that he does not keep a round in the chamber of his gun, but that his gun frequently fails. He explained that sometimes when it does not work, he has to rack the slide back and start over. He admitted that this is not something that Adan would have known.

Galaciano's wife testified that she and her husband had known Adan for about five years. She said that Adan and Galaciano were good friends, and that she never saw them argue or fight. On cross-examination, the defense asked Galaciano's widow whether Galaciano and the defendant were also friends. The state objected on the ground that the question was beyond the scope of direct examination. The trial court sustained the objection. The court advised defense counsel that he could recall the widow during his case in chief, but could not elicit this testimony on cross-examination. Defense counsel proffered that the widow would testify that Galaciano and the defendant were also friends. Rather than recall the widow during the defense's case (which consisted solely of the defendant's testimony), defense counsel chose to release Galaciano's widow from her subpoena.

The defendant testified that he and Galaciano were good friends. In closing argument, the state argued:

Okay, let's talk about that. Why should you eliminate Adan as the person who shot Galaciano? Liborio Romero says he ... could not possibly have killed [Galaciano]. He was good friends with [Galaciano]. Why would he kill his friend? Well, why wouldn't that apply to Adan? The difference is, we don't have Adan's word or Galaciano's word or anyone to tell us that they were friends. We have people who knew them. Adan's wife, Linda Cornejo told you that they were good friends and never fought and never argued. [Galacianos' widow] told you that they had known each other for a long time, they were good friends, they never fought they never argued. Mr. Dominguez said that they were regulars, that they were friends. He never saw them fight and never argue.

We only have the defendant's word to tell you they were friends. [Galaciano's widow] did not say, yeah, they are good friends. That's—maybe that's what she remembers, but she did not say that.

At this point, the defendant objected on the ground that the prosecutor was now trying to take advantage of the court's exclusionary ruling. His objection was overruled.

The jury returned a verdict of manslaughter on the count related to Galaciano's death and a verdict of first degree murder on the count related to Adan's death.

Motions for Judgment of Acquittal

In reviewing a motion for judgment of acquittal, we apply a de novo standard of review. See Johnston v. State, 863 So.2d 271 (Fla.2003). In Johnston, the Florida Supreme Court reviewed the principles that govern a motion for judgment of acquittal:

Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence. See Pagan [v. State], 830 So.2d at 803 (citing Donaldson v. State, 722 So.2d 177 (Fla.1998); Terry v. State, 668 So.2d 954, 964 (Fla.1996)). There is sufficient evidence to sustain a conviction if, after viewing

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