Jimenez v. State

703 So. 2d 437, 1997 WL 672785
CourtSupreme Court of Florida
DecidedOctober 30, 1997
Docket85014
StatusPublished
Cited by42 cases

This text of 703 So. 2d 437 (Jimenez v. State) 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
Jimenez v. State, 703 So. 2d 437, 1997 WL 672785 (Fla. 1997).

Opinion

703 So.2d 437 (1997)

Jose Antonio JIMENEZ, Appellant,
v.
STATE of Florida, Appellee.

No. 85014.

Supreme Court of Florida.

October 30, 1997.
Rehearing Denied December 29, 1997.

*438 J. Rafael Rodriguez, Specially Appointed Public Defender of the Law Offices of J. Rafael Rodriguez, Miami, for Appellant.

Robert A. Butterworth, Attorney General and Fariba N. Komeily, Assistant Attorney General, Miami, for Appellee.

PER CURIAM.

We have on appeal the convictions of burglary with an assault and battery in an occupied dwelling and first-degree murder and the sentence of death imposed upon Jose Antonio Jimenez. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

On October 2, 1992, Jimenez beat and stabbed to death sixty-three-year-old Phyllis Minas in her home. During the attack her neighbors heard her cry, "Oh God! Oh my God!" and tried to enter her apartment through the unlocked front door. Jimenez slammed the door shut, locked the locks on the door, and fled the apartment by exiting onto the bedroom balcony, crossing over to a neighbor's balcony and then dropping to the ground. Rescue workers arrived several minutes after Jimenez inflicted the wounds, and Minas was still alive. After changing his clothes and cleaning himself up, Jimenez spoke to neighbors in the hallway and asked one of them if he could use her telephone to call a cab.

Jimenez's fingerprint matched the one lifted from the interior surface of the front door to Minas's apartment, and the police arrested him three days later at his parents' home in Miami Beach. In 1994, a jury found him guilty of first-degree murder and burglary of an occupied dwelling with an assault and battery and unanimously recommended the death sentence. The court followed the jury's recommendation, finding four aggravating circumstances,[1] one statutory mitigating circumstance,[2] and two nonstatutory mitigating *439 circumstances.[3] Jimenez raises nine issues on appeal.[4]

Jimenez first argues that the trial judge improperly denied his request to discharge his court-appointed second chair counsel, Andrew Kassier, and conducted an insufficient hearing on the matter. We disagree. First, a defendant has no right to co-counsel,[5] and second, a trial court must conduct an inquiry only if a defendant questions an attorney's competence. Smith v. State, 641 So.2d 1319, 1321 (Fla.1994); Watts v. State, 593 So.2d 198, 203 (Fla.1992). Jimenez requested that the court replace Kassier because he had a conflict with him, he could not reach him, and he did not know what was going on in his case. When the court inquired as to the nature of the conflict, Jimenez and Kassier declined to explain and lead counsel, Michael Matters, indicated that further inquiry would be fruitless. Under these circumstances, wherein Jimenez had no constitutional right to co-counsel, and he did not question Kassier's competence, we find no further inquiry was warranted. We also reject Jimenez's claim that the trial court should have informed him of his right to self-representation. If the court had discharged Kassier, Jimenez still would have been represented by lead counsel, Matters. Further, a request for self-representation must be stated unequivocally. Hardwick v. State, 521 So.2d 1071, 1074 (Fla.1988). Jimenez made no unequivocal request to represent himself, thus the trial court was not obliged to inform him of his right to self-representation. See Smith, 641 So.2d at 1321.

Jimenez next asserts that, even though he was present in the courtroom, it was error for him to be absent from two sidebar conferences during the jury selection process where the parties exercised cause challenges. We disagree. In Coney v. State, 653 So.2d 1009 (Fla.1995), we required the trial court to obtain from the defendant an on-the-record personal waiver of presence from the immediate site where pretrial juror challenges were being exercised, and we stated that the ruling was prospective only.[6] In State v. Mejia, 696 So.2d 339, 340 (Fla.1997), we ruled that Coney does not apply to trials that were conducted prior to April 27, 1995.[7] Thus, we find no error.

We also find no merit to Jimenez's claim that the trial court impermissibly restricted his right to cross-examination. Trial courts have wide latitude to impose reasonable limits on the scope of cross-examination. Jones v. State, 580 So.2d 143, 145 (Fla.1991). In Penn v. State, 574 So.2d 1079 (Fla.1991), we held that *440 questions on cross examination must either relate to credibility or be germane to the matters brought out on direct examination. If the defendant seeks to elicit testimony from an adverse witness which goes beyond the scope encompassed by the testimony of the witness on direct examination, other than matters going to credibility, he must make the witness his own. Stated more succinctly, this rule posits that the defendant may not use cross-examination as a vehicle for presenting defensive evidence.

Id. at 1082 (quoting Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982) (citations omitted)).

In the instant case, defense counsel attempted to cross-examine Detectives Pearce and Ojeda concerning the search of Jimenez's apartment and the particulars of the arrest warrant. Neither subject was raised by the State in its direct examination. The trial court sustained the State's objection and ruled that the questions concerning information furnished by others which formed the basis for the arrest warrant were not only beyond the scope of direct examination, but would elicit inadmissible hearsay. The trial court further ruled that the defense could call the two witnesses during its case in chief with respect to the matters it sought to elicit on cross-examination. We find no undue restriction on the development of Jimenez's defense, and thus no error.

Next, Jimenez contends that the trial court should have sought his personal waiver of the third-degree felony murder jury instruction pursuant to Harris v. State, 438 So.2d 787 (Fla.1983), Mack v. State, 537 So.2d 109 (Fla.1989), and Green v. State, 475 So.2d 235, 236 (Fla.1985). In Harris, we held that a defendant is entitled to have the jury instructed on all necessarily included lesser offenses, and the defendant must personally waive the right to these instructions. In Green, we held that third-degree felony murder is not a necessarily included offense of first-degree murder, but it is, under certain circumstances and evidence, a proper permissive lesser included offense of first-degree murder requiring a jury instruction to that effect.

Jimenez concedes that third-degree felony murder is not a necessarily included lesser offense of first-degree murder, but claims that his waiver was required because third-degree felony murder,[8] a permissive lesser included offense, is supported by the evidence,[9] and Mack, which reaffirms the waiver requirement in Harris, does not distinguish between necessarily included and permissive lesser included offenses. We reject Jimenez's argument because our review of the record reveals that there is no evidence to support a third-degree felony murder conviction; thus, an instruction on that offense was not required.[10] We find no error.

Jimenez next claims that the evidence was insufficient to support his first-degree murder and burglary convictions. We disagree.

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Bluebook (online)
703 So. 2d 437, 1997 WL 672785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jimenez-v-state-fla-1997.