Opinion
No. 3D17-1979
09-11-2019
Albert Louis BARNES, Appellant, v. The STATE of Florida, Appellee.
Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Philip L. Reizenstein, Chief Assistant Regional Counsel, for appellant. Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney General, for appellee.
Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Philip L. Reizenstein, Chief Assistant Regional Counsel, for appellant.
Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney General, for appellee.
Before LOGUE, HENDON, and LOBREE, JJ.
HENDON, J. Albert Louis Barnes ("Barnes") was convicted after a jury trial of three counts of attempted first degree (premeditated) murder and one count of witness tampering. Barnes seeks a new trial, arguing that the trial court erroneously denied his motion for mistrial. Barnes asserts he was substantially prejudiced by the State's opening statement referring to certain Facebook photos that were later deemed inadmissible, as well as the introduction of certain Facebook photos admitted over defense counsel's objection. For the reasons that follow, we affirm.
1) The State's opening statement.
Background: The three shooting victims consistently testified that it was Barnes who shot them, and he shot them with a black semi-automatic handgun with an extended clip. The weapon Barnes was accused of using was not recovered from the scene of the charged offenses. Rather, it was recovered from George Avila , an associate of Barnes who was being investigated in a separate, unrelated matter. Bullet casings found at Barnes's crime scene, however, were proven to have been fired from the weapon found with Avila. No DNA or fingerprints were found on either the gun or the spent casings. Barnes does not dispute that the weapon recovered from Avila was the same gun used to shoot at the three victims in his case. His defense at trial was that he was merely a high school kid who was not involved in the shootings. Thus, the State sought to establish that Barnes had a more-than-passing connection to Avila, and consequently had access to the weapon that eventually made its way to Avila, thereby implicating Barnes in the crime. In its opening statement the prosecutor stated:
The record refers to this person as, variously, Avile, Avila, or Aviles.
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Now, you're also going to hear about a person named George Avila. On July 7, 2014 George Avila was arrested by the police on a completed unrelated case that has nothing to do with the charges in this case. When George was arrested, he had a gun on him, a semi-automatic firearm. That gun that he had on him is the exact same gun that was used in this attempted murder.
....
George Avila is an associate of Albert Barnes. And you're going to see also that Albert Barnes not only is associated with George Avila, Albert Barnes, they also have photos of him [Avila] holding a semi-automatic firearm with an extended clip just like the one that was used in this case.
Barnes argues that the trial court should have granted a mistrial on grounds that the State's opening comment was so prejudicial as to vitiate the fairness of the trial, because there was no evidence to connect that gun to him or to the charged crime.
We review denial of a motion for mistrial by an abuse of discretion standard. Knight v. State, 76 So. 3d 879, 885 (Fla. 2011). The standard requires that a mistrial be granted only "when an error is so prejudicial as to vitiate the entire trial, and necessary to ensure that the defendant receives a fair trial." Id. The State's comments must either "deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise." Salazar v. State, 991 So. 2d 364, 372 (Fla. 2008) (quoting Spencer v. State, 645 So. 2d 377, 383 (Fla.1994) ).
The comment in the State's opening statement was not a basis to declare a mistrial. Opening statements "are not evidence, and the purpose of opening argument is to outline what an attorney expects to be established by the evidence." Occhicone v. State, 570 So. 2d 902, 904 (Fla. 1990) (citing Whitted v. State, 362 So. 2d 668 (Fla. 1978) ). Further, the "control of comments is within the trial court's discretion." Occhicone, 570 So. 2d at 904 ; see also Gonzalez v. State, 990 So. 2d 1017, 1024–25 (Fla. 2008). The trial court ultimately excluded from evidence the photo(s) of Avila and Barnes together. The trial court also did not allow into the trial the fact that Barnes and Avila were Facebook friends. Nonetheless, the State's comments did not lead to substantial prejudice or compromise the fairness of the trial, especially in light of the three eyewitnesses' testimony. As explained in Lebron v. State, 135 So. 3d 1040, 1059 (Fla. 2014) :
Since it is clear that the prosecutor's fleeting remarks during opening statements did not warrant a mistrial, we conclude that Lebron has failed to establish prejudice, as a reasonable probability does not exist sufficient to undermine confidence in his guilt that, but for the allegedly improper prosecutorial remarks made during opening statements, the result of the trial would have been different.
A mistrial based on the prosecutor's passing comments in opening statement is not justified, and the trial court's refusal to grant a mistrial on this basis was not an abuse of discretion.
2) The Facebook photo.
The State proffered a Facebook photo of Barnes that showed him displaying what appeared to be a 9mm black, semi-automatic handgun with an extended clip sticking out of the waistband of his pants. The photo was obtained, pursuant to a valid warrant, from Barnes's Facebook account. It was unclear exactly when the photo was taken or posted to that account but was determined to have been taken relatively close in time to the offense. The record shows that the defense, the prosecution, and the trial court engaged in a significant exchange concerning the prejudicial nature of the photo versus its relevance to show Barnes's general participation in gun-related activity. After one of the shooting victims was voir dired as to her perception of the Facebook photo, the defense once again argued that its prejudice outweighed its relevance. The trial court concluded that the photo clearly showed Barnes displaying a handgun with an extended clip similar to what the eyewitness victim testified Barnes shot her with. When the victim testified about the photo at trial, she said it looked "similar to" the one she observed Barnes shooting. The photo was placed on Barnes's Facebook page during the timeframe of the shooting. The trial court concluded that the photo's relevance outweighed its prejudice and admitted it into evidence.
A trial court's ruling on admissibility is reviewed for an abuse of discretion. Heath v. State, 648 So. 2d 660, 664 (Fla. 1994) (A "trial court has broad discretion in determining the relevance of evidence and such determination will not be disturbed absent an abuse of discretion"); Knight v. State, 15 So. 3d 936, 938 (Fla. 3d DCA 2009). The trial court did not abuse its discretion by admitting the Facebook photo showing Barnes partially displaying a gun similar to the one he was seen shooting. It was relevant to dispute the defense characterization of him as an innocent high-schooler with no involvement with guns, and probative of the State's argument that Barnes was indeed the shooter. See Jones v. Moore, 794 So. 2d 579, 585 (Fla. 2001) (concluding that the trial judge did not commit harmful error by admitting the photos of the guns, finding them similar and relevant to the guns used in the offense).
Finally, after close examination of the record on appeal, we find no merit in Barnes' remaining argument that his defense counsel, in opening statement, conceded Barnes' guilt on the charge of witness tampering. Finding no abuse of discretion in the challenged evidentiary decisions, we affirm.
Affirmed.