Tacoronte v. State, 81-867

• Decision Date: 28 September 1982
• Docket Number: No. 81-867,81-867
• Citation: 419 So.2d 789
• Parties: Felix TACORONTE, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 789

419 So.2d 789

Felix TACORONTE, Appellant, v. The STATE of Florida, Appellee.

No. 81-867.

District Court of Appeal of Florida,

Third District.

Sept. 28, 1982.

Bennett H. Brummer, Public Defender, and Stuart R. Mishkin, Sp. Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., for appellee.

Before HENDRY and DANIEL S. PEARSON, JJ., and MELVIN, WOODROW M. (Ret.), Associate Judge.

HENDRY, Judge.

Felix Tacoronte, defendant below, appeals his conviction following a jury trial, for murder in the second degree and unlawful possession of a firearm while engaged in a criminal offense.

Two friends of the victim, Palenzuela, observed Tacoronte argue with Palenzuela about a bill or ticket in a bar. Tacoronte then took a gun from under his shirt and shot Palenzuela. The two friends later identified Tacoronte as the man who shot Palenzuela and so testified at trial.

Tacoronte testified on his own behalf at trial, stating that he worked for Palenzuela bringing drugs into the country. He said he owed Palenzuela about $40,000 for one kilo of cocaine and that Palenzuela had threatened him if he did not pay. On the evening of the murder, Tacoronte had gone to the bar to get something to eat, and while there Palenzuela, intoxicated, came over and violently demanded that Tacoronte pay his debt. Tacoronte testified that he saw a gun under Palenzuela's open coat and that Palenzuela reached for it. Tacoronte then grabbed the gun, stepped back, and when Palenzuela jumped at him, fired. He struggled with one of the victim's friends, both of whom were standing nearby, and fired more shots.

Defense counsel and police detective Richard Bohan arranged for Tacoronte to turn himself in on charges of first degree murder. Accompanied by counsel, Tacoronte surrendered to the sergeant on duty at the Public Safety Department, for an unrelated cocaine charge also pending against him. At trial, on cross-examination by defense counsel, detective Bohan testified as to what happened next:

At that point I told that sergeant--identified myself and told him I was taking custody of him and adding additional charges and you [referring to defense counsel] advised me not to speak to him [referring to the defendant]. I said I wouldn't.

Defense counsel moved for a mistrial on the basis that this testimony was a reference to defendant's failure to make a statement following his arrest. The judge denied the motion and gave a curative instruction to the jury.

Two other occurrences at trial are also alleged to constitute reversible error. First, during voir dire of prospective jurors, one of whom was a local school teacher, the prosecutor asked whether any of them knew the victim or his wife. He then asked, "what about the dead man's little nine year old daughter or ten year old son?" Defense counsel moved for mistrial arguing that the question was calculated to prejudice the jury. The court denied the motion, advising the prosecutor to ask the question in a more appropriate manner without arousing sympathy for the victim, and advised the jurors they must lay aside any personal feelings or sympathy in favor of or against the state or the defendant. The questioning continued:

[PROSECUTOR]: Ms. O'Neal, you are a teacher in the Dade County Public School System. Is that right?

MS. O'NEAL: Yes.

THE COURT: Do you know a little nine year old girl, Dixie Palenzuela, the daughter of Jorge Palenzuela, the dead man in the indictment?

MS. O'NEAL: No.

[PROSECUTOR]: Do you know his ten year old son, Alexius Palenzuela?

[DEFENSE COUNSEL]: Objection. Same kind of thing.

THE COURT: You understand the purpose of the question is whether you know any of these people? I do not think the children of the victim are going to participate in this case in any manner, but if you know them, we want to know. Understand that I hope that the state is not trying to provide any sympathy for their case just by mentioning the children. You must understand you must not do that.

Second, the prosecutor stated during closing argument:

[Defense counsel] says, well, that is the truth somehow. It would have been better prepared. I would suggest to you the defense lawyer has been spending four months going over and preparing for this murder trial, and it is a very important point. His whole story is self-defense. He knows he has a guy who knew his client's last name standing in the middle triangle while this happened. He knew his name was Tacoronte. He has to come up with something to counter it.

Defense counsel moved for a mistrial, stating that the remarks imputed perjury. The court admonished the jury to remember the evidence they had heard and that counsel's argument was simply that--argument. The prosecutor then continued without objection:

The defense had to come up with some story to counter the eyewitnesses, so let us create this self-defense. It makes sense, Latins. We all know every Latin in town is a big drug dealer. Let us play on the community's feeling about people that come from a Latin origin. Let us make this story up. Let us say this big drug dealing story. That is the critical issue.

We address the three issues in the order presented. First, whether detective Bohan's testimony was a comment on defendant's silence depends upon the circumstances in which it was made and whether the jury could fairly conclude that the intended inference was that the defendant stood mute at that time. Gosney v. State, 382 So.2d 838 (Fla. 5th DCA 1980). Based on this standard, we hold that the statement was not a comment on the defendant's postarrest silence. Indeed, the testimony refers to a conversation which occurred, not after arrest, but as the defendant was being booked into jail, and relates instructions given the police by defense counsel not to question his client and an assurance that they would honor this request. In this context, we do not believe that the jury could fairly conclude that this testimony meant that the defendant refused to make a statement. See David v. State, 369 So.2d 943 (Fla.1979); Gosney v. State, supra. Additionally, even assuming the testimony was improper comment on defendant's silence, we find that this case falls within the exceptions announced by the supreme court in Clark v. State, 363 So.2d 331 (Fla.1978), holding that no error occurs when defense counsel comments upon or elicits testimony concerning the defendant's exercise of his Fifth Amendment privilege: "A defendant may not make or invite an improper comment and later seek reversal based on that comment." Id. at 335. Accord Jackson v. State, 359 So.2d 1190 (Fla.1978), cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63 (1979). Since the objectionable testimony was clearly responsive to the line of questions being asked, and was elicited by defense counsel on cross-examination, it does not constitute reversible error. See Castle v. State, 305 So.2d 794 (Fla. 4th DCA 1974), cert. denied, 317 So.2d 766 (Fla.1975).

Second, whether the prosecutor's question to one of the jurors during voir dire regarding the victim's children is improper, depends, again, upon the full context in which it was made. Here, the context of the challenged statement related to whether a particular juror, a teacher in the public school system, knew any of the victim's school age children. The court's curative instruction to the jury that this question was not intended to evoke sympathy for the victim, but solely to determine whether any of the jurors, particularly the school teacher, might have known the victim's children, adequately cured any error which might have resulted. See Johnson v. State, 393 So.2d 1069 (Fla.1980).

Tacoronte's final contention urges that the trial court erred in denying his motion for mistrial based on comments made by the prosecutor during final argument which allegedly imputed perjury to defendant and his counsel.

Generally, a considerable degree of leeway is allowed the prosecutor in closing argument. Thomas v. State, 326 So.2d 413 (Fla.1975); Gosney v. State, supra; Frierson v. State, 339 So.2d 312 (Fla. 3d DCA 1976). An attorney is allowed to urge the conclusions he thinks the jury should draw from the evidence, United States v. Allen, 588 F.2d 1100 (5th Cir.), cert. denied, 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071 (1979), and where there is sufficient basis in the record to support a comment, the conviction will be affirmed. Darden v. State, 329 So.2d 287 (Fla.1976), cert. dismissed, 430 U.S. 704, 97 S.Ct. 1671, 51 L.Ed.2d 751 (1977); James v. State, 334 So.2d 83 (Fla.3d DCA 1976).

On the basis of the record before us, however, we find it unnecessary to determine whether the inference which the prosecutor attempted to draw in his closing argument was beyond the evidence, ¹ since it did not materially contribute to Tacoronte's conviction. Improper remarks entitle an accused to a new trial only in those cases where the reviewing court is not satisfied beyond a reasonable doubt that the error did not contribute to a conviction. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); McMillian v. State, 409 So.2d 197 (Fla. 3d DCA 1982); James v State, supra. Here, evidence of Tacoronte's guilt was overwhelming; the self-defense issue raised by defendant's own self-serving testimony was decisively contradicted by the two eyewitnesses who testified that defendant shot the victim at point blank range several times without provocation, and a policeman immediately called to the scene who testified he found no weapons on or near the victim. Accordingly, in the context of this case, where the trial court properly instructed the jury to disregard the comments and further admonished them that argument of counsel is not evidence and they should rely solely on the evidence, we conclude that the state's argument was not so prejudicial nor fundamentally tainted as to require a new trial. Blair v. State, 406 So.2d 1103 (Fla.1981); State v. Cumbie, 380 So.2d 1031 (...