Blanco v. Wainwright

507 So. 2d 1377
CourtSupreme Court of Florida
DecidedMay 7, 1987
Docket68,263, 68,839
StatusPublished
Cited by141 cases

This text of 507 So. 2d 1377 (Blanco v. Wainwright) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blanco v. Wainwright, 507 So. 2d 1377 (Fla. 1987).

Opinion

507 So.2d 1377 (1987)

Omar BLANCO, Petitioner,
v.
Louie L. WAINWRIGHT, Etc., et al., Respondents.
Omar BLANCO, Appellant,
v.
STATE of Florida, Appellee.

Nos. 68,263, 68,839.

Supreme Court of Florida.

May 7, 1987.
Rehearing Denied July 10, 1987.

*1380 Larry Helm Spalding, Capital Collateral Representative and Mark E. Olive, Litigation Coordinator for Office of the Capital Collateral Representative, Tallahassee, for petitioner/appellant.

Robert A. Butterworth, Atty. Gen., and Penny H. Brill and Carolyn V. McCann, Asst. Atty. Gen., West Palm Beach, for respondents/appellee.

SHAW, Justice.

The appellant/petitioner Omar Blanco is a Florida prisoner whose conviction for first-degree murder and sentence of death were affirmed by this Court in Blanco v. State, 452 So.2d 520 (Fla. 1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 953 (1985). A death warrant was signed and execution set for February 3, 1986. Blanco petitioned the trial court for post-conviction relief under Florida Rule of Criminal Procedure 3.850 and this Court for a writ of habeas corpus. After granting a stay of execution and evidentiary hearings, the trial court denied all relief. We have jurisdiction, article V, sections 3(b)(1) and (9), Florida Constitution. We affirm the denial of rule 3.850 relief and deny the petition for writ of habeas corpus.

3.850 Relief

Appellant presented eleven claims to the trial court. We find that eight of these claims are procedurally barred because they either were or should have been presented on direct appeal: (1) did the trial court err in permitting appellant to call witnesses against the advice of defense counsel; (2) did the trial court conduct critical stages of the trial in the absence of appellant or an interpreter; (3) did the trial court err in questioning appellant concerning the presentation of his defense; (4) did the instructions to the jury unconstitutionally denigrate the jury's role in recommending life or death; (5) did the trial court improperly instruct the jury on the number of jurors required to return a life recommendation; (6) did the trial court improperly rely on the conviction for armed burglary as an aggravating factor; (7) did the trial court improperly rely on a previous conviction for armed robbery as an aggravating factor; and (8) did the prosecutor use inflammatory closing arguments. Herring v. State, 501 So.2d 1279 (Fla. 1986); Adams v. State, 484 So.2d 1216 (Fla.), cert. denied, ___ U.S. ___, 106 S.Ct. 1506, 89 L.Ed.2d 907 (1986); Smith v. State, 457 So.2d 1380 (Fla. 1984); Jones v. State, 446 So.2d 1059 (Fla. 1984); Demps v. State, 416 So.2d 808 (Fla. 1982). Only two of these procedurally barred claims merit any comment. Claim two was raised in part on direct appeal. Appellant now attempts to expand the claim by arguing that he did not receive a simultaneous translation of all proceedings and was not present at bench conferences held outside the hearing of the jury. Neither argument is cognizable on collateral review. Moreover, Suarez v. State, 481 So.2d 1201 (Fla. 1985), cert. denied, ___ U.S. ___, 106 S.Ct. 2908, 90 L.Ed.2d 994 (1986), is directly on point. The public defender retained a personal translator for appellant and assigned a Cuban-born, Spanish-speaking attorney as assistant trial counsel. Both had served appellant in a previous trial for armed robbery and advised the court they had no difficulty communicating with him. The trial record contains a notation that the translator was seated next to the defendant throughout the trial. The record also shows that the trial judge required the translator and assistant counsel to demonstrate their proficiency in open court. The record also shows that at a noon recess, after the jury was excused, the trial judge conducted a short conference and noted that the translator had left with the jury, presumably with the permission of appellant and counsel. The trial judge later queried assistant counsel if he had advised appellant, in his native tongue, as to what had occurred and was assured that he had done so. We are satisfied, as in Suarez, that the court ensured that the *1381 appellant had the assistance of a competent translator at all times. On the question of appellant's presence at bench conference, the record shows that these conferences were held in appellant's presence. Nothing in the record supports the notion that appellant was not permitted to listen to these conferences, if either he or counsel so desired. On claim three, appellant attempts to revise claim one, which was presented and rejected on direct appeal, into a claim that the trial judge violated appellant's right against self-incrimination by questioning him on disagreements he had with defense counsel concerning the calling of witnesses. We rejected the core of this argument on direct appeal and see no impropriety in the judge directly addressing appellant concerning his desires on the conduct of the trial. The issue is not cognizable on collateral review.

Appellant presents four separate but overlapping arguments asserting that he received ineffective assistance of trial counsel. Appellant came to the United States from a Cuban prison during the 1980 boatlift from Mariel, Cuba. His brother, who was also in prison there, preceded him by several months. Both were detained at camps in the United States and released to the same sponsor in Dade County. The crimes here occurred, and were tried, in adjacent Broward County in 1982. Prior to the trial, defense counsel was concerned that the bad public reputation of Mariel refugees might prejudice the jury. Accordingly, the defense filed a motion for a change of venue but withheld moving it to hearing pending jury selection. On voir dire, without disclosing that appellant was a Mariel refugee from a Cuban prison, defense counsel questioned jurors closely and repeatedly on any prejudices they might have against Cuban emigrants in south Florida. The answers were satisfactory and each juror voiced impartiality. Appellant asserts, nevertheless, that counsel was ineffective for not dealing effectively with prejudice against Mariel refugees. In support, appellant produced the testimony of two Cuban emigre college professors who reviewed, at length, Cuban immigration to the United States and the negative public perception of Mariel refugees. The primary thrust of their testimony appears to have been that an overwhelming majority of the Mariel refugees were not criminal prisoners in Cuba and that the public perception of them as such was false. One professor opined that a Mariel refugee could not obtain a fair trial anywhere in the United States; the other professor concluded that a Mariel refugee could not receive a fair trial in south Florida. Neither was familiar with trial court procedures for ensuring that a defendant has an impartial jury or the actual measures taken in this case.

Claims of ineffective assistance of counsel are controlled by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A claimant who asserts ineffective assistance of counsel faces a heavy burden. First, he must identify the specific omission and show that counsel's performance falls outside the wide range of reasonable professional assistance.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

T.T.S., A CHILD v. STATE OF FLORIDA
253 So. 3d 1154 (District Court of Appeal of Florida, 2018)
Omar Blanco v. State of Florida
249 So. 3d 536 (Supreme Court of Florida, 2018)
Vass v. State
224 So. 3d 279 (District Court of Appeal of Florida, 2017)
Yves J. J. Milord v. State
225 So. 3d 305 (District Court of Appeal of Florida, 2017)
Randy W. Tundidor v. State of Florida
221 So. 3d 587 (Supreme Court of Florida, 2017)
Whitfield v. Department of Corrections
202 So. 3d 116 (District Court of Appeal of Florida, 2016)
Marty v. State
210 So. 3d 121 (District Court of Appeal of Florida, 2016)
Ralph Monroe v. State of Florida
191 So. 3d 395 (Supreme Court of Florida, 2016)
McComb v. State
174 So. 3d 1111 (District Court of Appeal of Florida, 2015)
Facin v. State
188 So. 3d 859 (District Court of Appeal of Florida, 2015)
Romine v. State
162 So. 3d 1102 (District Court of Appeal of Florida, 2015)
Smith v. State
121 So. 3d 602 (District Court of Appeal of Florida, 2013)
Robards v. State
112 So. 3d 1256 (Supreme Court of Florida, 2013)
Bracey v. State
109 So. 3d 311 (District Court of Appeal of Florida, 2013)
Farr v. State
124 So. 3d 766 (Supreme Court of Florida, 2012)
Fox v. State
104 So. 3d 371 (District Court of Appeal of Florida, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
507 So. 2d 1377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blanco-v-wainwright-fla-1987.