Opinion
4D2023-2007
12-11-2024
ALFREDO BLESS, Appellant, v. STATE OF FLORIDA, Appellee.
Carey Haughwout, Public Defender, and Devin Johnson, Assistant Public Defender, West Palm Beach, for appellant. Ashley Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Caroline Shepherd, Judge; L.T. Case No. 502019CF002831.
Carey Haughwout, Public Defender, and Devin Johnson, Assistant Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
LEVINE, J.
Appellant appeals his convictions for second-degree murder with a firearm and shooting into a building. Appellant argues that the trial court abused its discretion by removing appellant from the courtroom during voir dire, opening statements, witness testimony, and sentencing. We disagree. We find that the trial court did not commit fundamental error by removing appellant from the courtroom due to his disruptive behavior. As such, we affirm.
As to the other issue raised by appellant, we affirm without further comment.
A trial was held on appellant's charges for second-degree murder and shooting into a building. Immediately on the morning of the first day of trial, appellant demanded to "address the court":
THE DEFENDANT: I need to address the Court.
THE COURT: How are you, [appellant]?
THE DEFENDANT: I need to address the Court.
THE COURT: All right. Here we are. State of Florida verses [appellant]. Ready for jury trial.
....
THE DEFENDANT: I need to address the Court before the jury comes-
THE COURT: I'll give you a minute. No, the jury is on their way up.
THE DEFENDANT: No, because you can't-I-listen, I'm going to address-
THE COURT: Mr.-
THE DEFENDANT: -the Court-
THE COURT: -[Appellant], give me a second.
THE DEFENDANT: No, no.
THE COURT: So, [appellant], hold on.
THE DEFENDANT: (Indiscernible) you're not-
THE COURT: Hold on.
THE DEFENDANT: -(Indiscernible).
THE COURT: I don't want to take you out of the courtroom. I just need you to listen to me for a minute. So you cannot interrupt me. You cannot say hold on and tell me to stop....
I want you to be here. I want you to be present. I want you to be able to sit next to [defense counsel] and talk to him quietly the whole time so that together you participate in your trial because this is your trial. This is a very important day for you.
If you cannot do that, then you will be voluntarily absenting yourself from the trial and I will have to remove you from the courtroom because I do a very good job of not wasting the jury's time.
After these warnings by the trial judge, appellant was allowed to address the court. The trial judge then sought to speak with appellant about testifying:
THE COURT: . . . All right, [appellant]. Raise your right hand.
THE DEFENDANT: No, no. You not abiding by the law.
THE COURT: [Appellant].
THE DEFENDANT: You are going against the 4th DCA.
THE COURT: Raise your-
THE DEFENDANT: I'm not required to-
THE COURT: -right hand.
THE DEFENDANT: -(Indiscernible) with that.
No, you not going by the law. And I told you I'm not the defendant Mr. Bless. So now you trying to get me to lie on the record. No.
The trial judge explained to appellant his right to testify. The following exchange was had after a discussion between appellant and his attorney:
[DEFENSE COUNSEL]: Now I think it's probably going to be in my client's best interest not to be in here.
THE DEFENDANT: No, no, I disagree with you.
THE COURT: So once-once-
THE DEFENDANT: Now, Judge, I was going to tell you-
THE COURT: Hold on, [appellant]. Stop. Stop.
THE DEFENDANT: No, I got a 1040 for the case. No, no, no, no, no. You said-
THE COURT: Oh, my goodness.
THE DEFENDANT: I got a 1040 for the case. Now you want to run out of the courtroom. No. See, this is wrong. This is wrong.
Appellant was eventually removed from the courtroom. The court deputy returned to the courtroom and reported that appellant was requesting to be brought back to the courtroom. According to the court deputy, appellant said, "He doesn't want to act out." Defense counsel went back to the holding cell to speak with appellant. When defense counsel returned, he said, "I've conferred with my client and he wishes to be taken back to the jail and not participate or watch the proceedings."
The court proceeded with jury selection without appellant present in the courtroom. The trial judge informed the prospective jurors that although appellant was told he had the right to be here, appellant "opted to not do that." Jury selection was completed, the jurors were sworn in, and both parties gave their opening statements.
The trial resumed the following morning. Appellant was brought back to the courtroom for the second day of trial. Before the jury entered, the trial judge told appellant he was invited to stay in the courtroom and participate in the trial. The trial judge said, "[A]s long as you can not do anything improper in front of the jury, you are welcome to stay." The trial judge noted that this was the third attempt to hold a trial for appellant.
The trial continued on the second day until one of the state's witnesses was asked to identify appellant:
[STATE:] Can you please point to him and identify an article of clothing that he's wearing?
[WITNESS:] Right-
THE COURT: [Appellant], sir, would you remove your mask please?
THE DEFENDANT: No, you need to identify me without-
THE COURT: [Appellant] -
THE DEFENDANT: -no-
THE COURT: -remove your mask, please.
THE DEFENDANT: No. No.
THE COURT: [Appellant], I'll have to have the deputies help you if you don't.
THE DEFENDANT: My thing is, if I can't be (Indiscernible)-
THE COURT: [Appellant].
THE DEFENDANT: No, you need to identify me (Indiscernible).
The jury was excused from the courtroom. The trial judge told appellant that he could remain in the courtroom if he would cooperate, otherwise he would be taken to a cell in the back. Appellant said the trial court was violating his constitutional rights because the witness had to identify him "just the way I am." The trial judge told appellant that if he refused to comply with the trial judge's order to remove his mask, appellant would be removed from the courtroom. Appellant said he would not remove his mask, so he was removed from the courtroom.
On the third and final day of trial, appellant testified on his own behalf. The trial judge asked appellant to remove his mask so his entire face was visible to the jury. Appellant removed his mask. Appellant continued to argue with the trial judge on various matters. The trial judge expressed her opinion that she did not think appellant would be able to testify because he could not get through a simple colloquy. Appellant continued to talk, and he was removed from the courtroom. The trial judge had a conversation with appellant and his lawyer over Zoom in the holding cell. Ultimately, the trial judge agreed to let appellant return to the courtroom, and appellant testified in person.
The jury convicted appellant of both second-degree murder and shooting into a building. Appellant's sentencing hearing was conducted six months later. Immediately at the beginning of the hearing, appellant stated that he "object[ed] to the proceedings." Appellant continued to object, stating that his case was "still in the Fourth DCA" so the trial judge could not proceed. The trial judge told appellant he could follow the rules, or he would be removed from the courtroom and sentencing would continue without appellant present. Appellant continued to speak over the trial judge and was removed from the courtroom to "cool off." Defense counsel spoke with appellant who indicated that he would like to return to the courtroom. Appellant returned to the courtroom and the trial judge warned appellant that he was "welcome to be present as long as you can maintain yourself and not interrupt the proceedings."
Appellant had filed a pro se petition in this court. This court had issued an order requiring appellant to file an appendix, which appellant had not yet filed. Before appellant's trial began, the trial court confirmed that there was no order preventing trial from proceeding.
Appellant began to interrupt the trial judge again to "challenge the jurisdiction of court." Appellant was again removed from the sentencing hearing. Sentencing was conducted without appellant present. This appeal follows.
We find that appellant did not preserve this issue for appellate review because appellant did not make a timely, contemporaneous objection to his removal from the courtroom. See Harrell v. State, 894 So.2d 935, 940 (Fla. 2005). Issues which have not been preserved for appellate review may be reviewed only for fundamental error. Jackson v. State, 983 So.2d 562, 568 (Fla. 2008); Brown v. State, 335 So.3d 123, 128 (Fla. 4th DCA 2002) (reviewing the defendant's argument only for fundamental error where the defendant did not object to appearing by video for his sentencing hearing). Whether an error is fundamental is reviewed de novo. Brown, 335 So.3d at 128. "[T]he fundamental error standard imposes a high burden on the defendant to establish that 'fundamental fairness has been thwarted.'" Id.
While appellant made various statements to the effect of objecting to his removal from the courtroom, appellant was represented by counsel at trial who did not object to appellant's removal from the courtroom. Appellant cannot have the benefit of being represented by counsel as well as representing himself at trial. See State v. Tait, 387 So.2d 338, 340 (Fla. 1980) ("We conclude that article I, section 16 does not embody a right of one accused of crime to representation both by counsel and by himself."); see also Mora v. State, 814 So.2d 322, 328 (Fla. 2002) ("[T]here is no constitutional right for hybrid representation at trial."); Sheppard v. State, 391 So.2d 346, 347 (Fla. 5th DCA 1980) ("The defendant has no right, however, to partially represent himself and, at the same time, be partially represented by counsel."). Thus, appellant's objections to his removal from the courtroom did not preserve this issue for appellate review.
"Generally, 'any error in denying a defendant her or his right to be present at a critical stage of any proceeding is fundamental error.'" Id. (citation omitted). Voir dire, opening statements, witness testimony, and sentencing are all critical stages of the proceeding at which a defendant has a right to be present. Fla. R. Crim. P. 3.180(a); Garcia v. State, 694 So.2d 815, 817 (Fla. 4th DCA 1997).
However, as the United States Supreme Court has stated:
[A] defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.Illinois v. Allen, 397 U.S. 337, 343 (1970).
Appellant has failed to show fundamental error in removing appellant from the courtroom following his disruptive behavior. Appellant made numerous outbursts both in the presence of the jury and outside the presence of the jury. Appellant routinely interrupted the trial judge and spoke out of turn, even after appellant was warned multiple times that this behavior would result in his removal from the courtroom. Despite these warnings, appellant's disruptive behavior continued. As a result, appellant was removed from the proceedings.
Thus, we find the trial judge was justified in removing appellant from the courtroom. Medina v. State, 573 So.2d 293, 295 (Fla. 1990) ("[T]rial courts have 'wide latitude' to regulate proceedings before them 'in order that the administration of justice be speedily and fairly achieved in an orderly, dignified manner' and that '[i]n this function the trial Judge exercises the sound discretion with which he is vested.'") (quoting Hahn v. State, 58 So.2d 188, 191 (Fla. 1952)); McCray v. State, 71 So.3d 848, 877 (Fla. 2011) ("[I]n order to prevent an obstreperous defendant from disrupting trial, trial courts may be justified in removing that defendant from the courtroom.").
The instant case is similar to Mulvaney v. State, 831 So.2d 777, 778 (Fla. 4th DCA 2002), where the defendant repeatedly said that his trial was unfair, that state witnesses lied, and that he was innocent. "The court tried to get [the defendant] to make directed statements in order to get his point across, but [the defendant] continued to ramble." Id. The court gave the defendant numerous warnings before removing him from the courtroom. Id. On appeal, this court held that the defendant's "repeated insults to the police officers, the trial judge and the assistant state attorney, in addition to his consistent interruptions and disruptive behavior constitute sufficient grounds to remove him from the court room." Id. at 779.
Similar to Mulvaney, in this case, appellant was offered multiple opportunities to address the court and air his concerns; however, appellant "continued to ramble" and interrupt the trial judge, even after numerous warnings from the trial court. Id. at 778. Appellant also continued to question the trial court's authority by telling the trial judge that she was violating his constitutional rights and not following the law. Appellant's disruptive behavior throughout various parts of the trial demonstrates that the trial judge properly exercised her discretion to have appellant removed from the courtroom. Brown v. State, 540 So.2d 924, 925 (Fla. 3d DCA 1989) ("Brown's disruptive behavior during the voir dire and the proceedings prior to the trial itself demonstrates that the trial judge properly exercised the discretion he possesses to insure a properly conducted trial. In a word, the so-called punishment fit the so-called crime."). Thus, the trial court did not err by removing appellant from the courtroom.
Additionally, the record reflects that defense counsel also affirmatively waived any objection to appellant's absence from voir dire, when defense counsel stated on the first day of trial that he "think[s] it's probably going to be in my client's best interest not to be in here." Defense counsel then spoke with appellant who said that he wished to be taken back to jail and did not want to participate in the proceedings. Thus, appellant waived any objection to his absence from voir dire and opening statements. See Muehleman v. State, 503 So.2d 310, 315 (Fla. 1987) (stating that a defendant may waive his presence at a critical stage of the proceedings); Krause v. State, 98 So.3d 71, 73-74 (Fla. 4th DCA 2012) (recognizing that fundamental error can be waived).
In sum, we find that the trial court did not commit fundamental error in removing appellant from the courtroom due to his continued disruptive behavior. As such, we affirm.
Affirmed.
DAMOORGIAN and ARTAU, JJ., concur.