No. 13-02-00432-CR
Memorandum Opinion delivered and filed July 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 130th District Court of Matagorda County, Texas.
Before Chief Justice VALDEZ and Justices HINOJOSA and CASTILLO.
Memorandum Opinion by Justice HINOJOSA.
A jury found appellant, Randy Lamberti, II, guilty of the offense of murder and assessed his punishment at life imprisonment and a $10,000 fine. The trial court has certified that this case "is not a plea-bargain case, and the defendant has the right to appeal." See TEX. R. APP. P. 25.2(a)(2). In four issues, appellant contends the trial court erred by: (1) overruling his objection to the prosecutor's comment on his right to remain silent; (2) allowing the victim's mother to testify when she was not on the witness list; (3) denying his motion for a mistrial when the victim's mother had an emotional breakdown on the stand; and (4) denying his motion for a mistrial when a juror saw him in restraints. We affirm.
A. FACTUAL BACKGROUND
On September 7, 2000, appellant shot Munye Griggs on the left side of her chest at his residence in Bay City. She was shot at close range and died shortly thereafter. After he shot her, appellant drove to the Colorado River and threw the firearm into the water. The firearm was not recovered by the police. Appellant then returned to his residence. He telephoned his mother, Sandra Cowart, told her he had shot Munye, and asked her to come to his residence. When Cowart arrived, she found Munye in a sitting position. Munye did not have a pulse. Cowart called 9-1-1 for assistance. The police, as well as EMS personnel, arrived soon thereafter. B. RIGHT TO REMAIN SILENT 1. Standard of Review
In his first issue, appellant contends the trial court erred by overruling his objection to the prosecutor's comment on appellant's right to remain silent. The standard of review in determining whether a trial court erred in its admission of evidence is abuse of discretion. Mozon v. State, 991 S.W.2d 841, 846 (Tex.Crim.App. 1999). An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably, without reference to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1991). 2. Applicable Law
The failure to testify at trial shall not be used against any defendant, nor shall counsel comment on the defendant's right to remain silent and failure to testify. TEX. CODE CRIM. PROC. ANN. art. 38.08 (Vernon Supp. 2004). Before a question is held to be a comment that violates the right against self-incrimination, the language, when viewed from the jury's standpoint, must be either manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on the accused's failure to testify. Stoker v. State, 788 S.W.2d 1, 17 (Tex.Crim. App. 1989). The question referring to a defendant's right to remain silent must be clear. Id. An indirect or implied allusion to a defendant's failure to testify does not violate a defendant's right to remain silent and will not result in reversible error. Id. Calling attention to the absence of evidence that only the defendant could supply will result in reversal only if the remark can only be construed to refer to appellant's failure to testify and not the defense's failure to produce evidence. Fuentes v. State, 991 S.W.2d 267, 275 (Tex.Crim. App. 1999). 3. Analysis
In the instant case, the complained-of "comment" was the prosecutor's questions to law-enforcement witnesses on direct examination regarding whether appellant had explained: (1) the location of the weapon, (2) what had occurred on the day of the shooting, and (3) whether it was an accident. The record reflects that during opening statement, appellant's attorney claimed he would show that appellant had told an officer he needed to talk to someone, he had shot his girlfriend, and that it was an accident. On direct examination, the prosecutor's questions addressed whether appellant had indeed made such statements. The questions called attention to evidence the defendant could produce, but also could be construed as addressing the defense's claim that it would produce such evidence. Moreover, the State did not directly state or imply that appellant failed to testify. We do not conclude that the questions were manifestly intended, or were of such a character that the jury would naturally and necessarily take them to be a comment on the accused's failure to testify. Accordingly, we hold the trial court was within its discretion in overruling appellant's objection. Appellant's first issue is overruled. C. FAILURE TO INCLUDE WITNESS ON WITNESS LIST
In his second issue, appellant contends the trial court erred in overruling his objection on the basis of prejudice and surprise when the victim's mother, Diane Griggs, was allowed to testify after the State failed to include her name on the witness list. When a discovery order is signed in a case, all witnesses expected to testify at any stage of the trial should be disclosed. See Young v. State, 547 S.W.2d 23, 27 (Tex.Crim. App. 1977). When a trial court allows a witness to testify who does not appear on the State's witness list, we review the decision under an abuse of discretion standard. Hightower v. State, 629 S.W.2d 920, 925 (Tex.Crim.App. 1981). The factors we will consider in determining abuse of discretion are whether the prosecutor's actions constituted bad faith or whether the defendant could reasonably anticipate the witness testifying. Id. The State included Griggs's name on its initial potential witness list, but omitted her name on four subsequent lists. The State explained that the omission was a clerical error and took full responsibility for not ensuring that Griggs was identified on subsequent lists. During voir dire, the State identified Griggs as a potential witness and asked the panel whether they knew the Griggs family. Before trial, appellant acknowledged Griggs as a potential witness and asked the trial court to swear her in as a potential witness and to exclude her from the courtroom. Based on these actions, we find the State's actions do not constitute bad faith and appellant could reasonably anticipate that Griggs would testify. Accordingly, we hold it was within the court's discretion to overrule appellant's objection. Appellant's second issue is overruled. D. GRIGGS' TESTIMONY
In his third issue, appellant contends the trial court erred in denying his motion for mistrial when Diane Griggs was allowed to testify and had a breakdown on the stand 1. Standard of Review
We review the trial court's denial of a motion for mistrial under an abuse-of-discretion standard. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App. 1993). A mistrial is a device used to halt proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). Whether a given error necessitates a mistrial is determined by examining the facts of each case. Hernandez v. State, 805 S.W.2d 409, 414 (Tex.Crim.App. 1990). Generally, a mistrial is only required when the improper evidence is "clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury." Id. Conduct that interferes with the normal proceedings of a trial will not result in reversible error unless the defendant shows, by reasonable probability, that the conduct interfered with the jury's verdict. Stahl v. State, 749 S.W.2d 826, 827 (Tex.Crim.App. 1988) (op. on reh'g); Landry v. State, 706 S.W.2d 105, 112 (Tex.Crim. App. 1985), overruled in part on other grounds, Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). This determination is made on a case-by-case basis. Landry, 706 S.W.2d at 112. Appellant asserts the trial court erred in denying his motion for mistrial because Griggs' emotional victim-impact testimony during the guilt/innocence phase of the trial provided minimal evidence but maximum jury effect. 2. Applicable Law
In all prosecutions for murder, the State or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing. Tex. Code Crim. Proc. Ann. art. 38.36(a) (Vernon Supp. 2004). Trial judges have discretion to allow juries to receive information from a proper preliminary inquiry into a witness's background to enable the jury to assess the weight to be given the testimony and to evaluate the witness's credibility. See Williams v. State, 604 S.W.2d 146, 148-49 (Tex.Crim.App. 1980); Ward v. State, 787 S.W.2d 116, 120 (Tex. App.-Corpus Christi 1990, pet. ref'd). Generally there are two types of victim-related evidence: "victim impact" evidence and "victim character" evidence. See Mosley v. State, 983 S.W.2d 249, 261 (Tex.Crim.App. 1998). "Victim impact" evidence is evidence that is "generally recognized as evidence concerning the effect that the victim's death will have on others, particularly the victim's family members." Id. "Victim character" evidence is evidence that is "generally recognized as evidence concerning good qualities possessed by the victim." Id. 3. Analysis
The testimony at issue here does not fall under either category of victim-related evidence. Unlike the situation where evidence involves testimony regarding a victim's good qualities and the effect the death had on her family, the testimony in the present case did not involve testimony about how third persons were affected by the crime, nor was there any discussion about the good character of the victim. We find that appellant's characterization of Griggs' testimony as victim-impact evidence is incorrect. Appellant suggests that the victim's mother's conduct interfered with the jury's verdict, but he has not shown that the jury's deliberations and verdict were affected by the emotional outbursts. Moreover, he has not shown that the objected-to conduct was the result of prosecutorial misconduct. See Stahl, 749 S.W.2d at 827. The trial court was within its discretion in allowing Griggs to testify regarding whether appellant contacted the victim before her death on September 7, 2000. The court was also within its discretion in allowing Griggs to testify regarding her family. Accordingly, we hold the trial court was well within its discretion in denying appellant's motion for mistrial. Appellant's third issue is overruled. E. APPELLANT SEEN IN RESTRAINTS
In his fourth issue, appellant contends the trial court erred in denying his motion for mistrial because a juror saw him in restraints. As we previously stated, the denial of a motion for mistrial is reviewed under an abuse-of-discretion standard. See Gonzalez, 855 S.W.2d at 696. Requiring an accused person to wear handcuffs before the jury infringes the constitutional presumption of innocence, and all efforts should be maintained to see that this does not ever occur. Clark v. State, 717 S.W.2d 910, 918-19 (Tex.Crim.App. 1986). However, a momentary, inadvertent, and fortuitous encounter away from the courtroom between a handcuffed accused and one or more of the jurors does not necessarily call for a mistrial or reversal. Id. In this instance, the trial court granted appellant's motion to appear in court in personal clothing without restraints. There was conflicting testimony from appellant and the deputy officer escorting him regarding whether a juror actually saw appellant wearing handcuffs outside the courtroom. Even if the juror saw appellant handcuffed outside the courtroom, the record contains no evidence that the matter was discussed with the other jurors or that it influenced the jury's verdict. At most, the occurrence did not rise above a momentary, inadvertent, and fortuitous encounter away from the courtroom. We hold it was within the trial court's discretion to deny appellant's motion for mistrial. Appellant's fourth issue is overruled. The judgment of the trial court is affirmed.