Salas v. State

• Decision Date: 17 May 1989
• Docket Number: No. 87-1402,87-1402
• Citation: 14 Fla. L. Weekly 1221,544 So.2d 1040
• Parties: 14 Fla. L. Weekly 1221 Lucio John SALAS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1040

544 So.2d 1040

14 Fla. L. Weekly 1221

Lucio John SALAS, Appellant, v. STATE of Florida, Appellee.

No. 87-1402.

District Court of Appeal of Florida,

Fourth District.

May 17, 1989.

Richard L. Jorandby, Public Defender, and Jeffrey L. Anderson, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Amy Lynn Diem, Asst. Atty. Gen., West Palm Beach, for appellee.

DELL, Judge.

Lucio John Salas appeals his conviction and sentence for four counts of sexual battery, two counts of kidnapping and one count of burglary with intent to commit assault and battery.

The victim, while driving north on U.S. 1, observed an automobile driving slowly in front of her. She passed the car and continued northbound. The car she passed then gained speed and stayed behind her. While traveling on Indrio Road, the car she had passed overtook her vehicle and forced her off the road. The operator of the vehicle, later identified by the victim as the appellant, opened her car door, grabbed her hair with his right hand and her arm with his left hand, pulled her from the car and dragged her to the side of his car. The victim struggled and screamed. Appellant repeatedly slapped her across her face and temple while telling her to shut up. When she resisted his attempt to push her into his automobile, he slammed her head against the car. She stated that she blacked out but remembered being pulled off her knees by her hair and shoved into appellant's car. He pushed her down onto the floorboard of the vehicle and shoved her face into a changeholder located on the transmission hump. The victim, while being forced into the car, noticed a dent on the front passenger side of the vehicle. She described the vehicle as a middle-to-late 1970's model Chevrolet Impala or Caprice, off-white or of pale color, having four doors and vinyl bench seats. Appellant's wife testified that in December, 1984, appellant owned a 1980 Chevrolet Caprice, light gray in color, four doors with vinyl bench seats, a change holder and damage to the right front fender. She also testified that in 1984, appellant smoked Kool cigarettes.

Appellant proceeded west with the victim and asked her where she lived. He told her that he had a knife and that if she tried to get away, he would kill her. She recalled that appellant threatened several times to use a knife. Appellant turned off the paved road and stopped the vehicle in an orange grove. He told the victim that if she tried to run or didn't cooperate, he would cut her up and throw her in the canal where her children would find her. Appellant forced the victim to perform oral, vaginal and anal sex with him. He then told the victim to get a cigarette for him from the front dashboard. She noted that appellant smoked Kool cigarettes. When appellant finished smoking his cigarette, he again forced her to have vaginal sex. He told her to get dressed and then started the car, making the victim lie on the floor. He drove from the orange grove to the parking lot of a store where he stopped and asked the victim if the store was close to where she lived. He then told her that he was not going to take her home and drove to another wooded area where he told her to partially disrobe and again sexually assaulted her. He released the victim at an intersection in Lakewood Park and told her to forget him and he would forget her.

When the victim arrived at the hospital, she had pain in her eye, head and scalp area, pain through her nose, and pain that radiated down her cheek. This latter pain lasted for over a year from the time of the sexual assault. Physical examination revealed that the victim had a one-inch vaginal tear, injury to the cornea, and abrasions, dirt particles and semen in the vaginal and anal areas. Laboratory analysis of the vaginal and anal swabs confirmed the presence of seminal fluid containing blood group "A" secretions. Appellant had type "A" blood. The victim had type "O" blood. Laboratory analysis of hairs found on the victim's slacks confirmed the presence of pubic hair identical to specimens of pubic hair taken from appellant.

The victim identified appellant from a photographic lineup and during a live lineup conducted at the jail. She identified appellant in court as her assailant and stated she was "absolutely positive" and would "never forget it." A jury found appellant guilty of four counts of sexual battery, two counts of kidnapping and one count of burglary with intent to commit assault and battery.

Appellant contends that the trial court erred in denying his request to poll the jury to determine their exposure to a newspaper article published on the first day of trial which contained potentially prejudicial information; in failing to grant his motion for judgment of acquittal on the charges of kidnapping; in entering a judgment of conviction on the charge of burglary of a conveyance; in failing to grant a mistrial because the prosecutor commented on his right to remain silent; in failing to enter a judgment of acquittal on the four counts of sexual battery because the record does not contain sufficient evidence of force likely to cause serious personal injury or evidence of a threat to use a deadly weapon. Appellant also contends that the trial court failed to state valid reasons for departing from the sentencing guidelines.

Appellant first argues that he should have a new trial because the trial court failed to voir dire the jury to determine whether they had been exposed to a newspaper article that he claims contained information which, if disclosed to the jury, would have denied him a fair trial. At the commencement of the second day of trial, appellant's counsel requested the trial court to voir dire the jury concerning an article published on page 4A of the Vero Beach Press Journal which read in pertinent part,

Prosecutor Seeks Lifelong Sentence

A rapist already serving a life prison sentence went to trial Tuesday on additional rape charges after a prosecutor refused to make a plea bargain.

"This man must be put away forever," Assistant State Attorney Tom Walsh said of Lucio John Salas, 38, of St. Lucie County, who was sentenced to life in prison last October for the knifepoint rape of a woman, whose 4-year-old daughter watched the attack.

Tuesday, an Indian River County jury was selected to hear a second case against Salas that includes four counts of sexual battery with deadly force, two counts of kidnapping and burglary of a conveyance.

....

"This is a classic case of a gross waste of taxpayers' money," Killer [appellant's attorney] said during a trial break, noting that his client might have accepted a plea bargain in the case, but none was offered.

Walsh said that under current gain time statutes, Salas will spend between seven and 15 years in prison on his life sentence.

Walsh said Circuit Judge Rupert Smith refused the prosecutor's request to sentence Salas to 200 years in prison on top of the life term.

....

Killer said he expects the trial to last until Monday, as Walsh will attempt to introduce Williams Rule evidence that will give jurors specific evidence about the defendant's past misconduct. Such evidence is generally not presented to jurors.

The victim is slated to testify sometime today in the trial presided over by Circuit Judge Dwight Geiger.

The trial court denied appellant's motion to voir dire the jury based upon the absence of any indication that any of the jurors had been exposed to the article. We find nothing in the record which indicates that any of the jurors violated the court's order prohibiting them from coming into contact with news coverage. The trial court gave the following preliminary instruction to the jury:

Further, you are not permitted to come into contact with any news media coverage of the trial and this, again, until you are finally excused as a juror. So do not read any newspaper articles or headlines about the trial. Do not listen to any news accounts on the radio or television or view any news accounts on the television, again, until you are finally excused as a juror.

In Robinson v. State, 438 So.2d 8 (Fla. 5th DCA), review denied, 438 So.2d 834 (Fla.1983), the Fifth District Court of Appeal stated:

There do not appear to be any Florida cases addressing the procedure to be followed when a claim of potentially prejudicial publicity arises after the jury has been selected. However, numerous federal circuit courts of appeal and other state courts have considered the question and developed the following procedure. Initially, the trial court must determine whether the published material has the potential for prejudice. United States v. Perrotta, 553 F.2d 247 (1st Cir.1977); Commonwealth v. Jackson, 376 Mass. 790, 383 N.E.2d 835 (Mass.1978); Brown v. State, 601 P.2d 221 (Alaska 1979); If it does, then a two-step process is necessary. First, the court should inquire of the jurors as to whether any of them read the material in question. If none of the jurors read the material, then its publication could not have prejudiced the defendant and the trial may proceed.

United States v. Carter, 602 F.2d 799 (7th Cir.1979); United States v. Khoury, 539 F.2d 441 (5th Cir.1976). If any of the jurors indicate they have read the material, they must be questioned to determine the effect of the publicity, i.e., whether they can disregard what they read and render an impartial verdict based solely on the evidence at trial. See, e.g., Margoles v. United States, 407 F.2d 727 (7th Cir.1969). This procedure has been deemed necessary even though the trial court repeatedly admonished the jury, as here, regarding the reading of newspapers during the trial. (footnotes omitted).

Id. at 9.

This court approved the procedure outlined in Robinson in Kruse v. State, 483 So.2d 1383 (Fla. 4th DCA 1986), dismissed, 507 So.2d 588 (Fla.1987). In Kruse, we held that the court erred when it refused to poll the jury to determine...