Lozano v. State

584 So. 2d 19, 1991 WL 110859
CourtDistrict Court of Appeal of Florida
DecidedJune 25, 1991
Docket90-217
StatusPublished
Cited by20 cases

This text of 584 So. 2d 19 (Lozano v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lozano v. State, 584 So. 2d 19, 1991 WL 110859 (Fla. Ct. App. 1991).

Opinion

584 So.2d 19 (1991)

William LOZANO, Appellant,
v.
The STATE of Florida, Appellee.

No. 90-217.

District Court of Appeal of Florida, Third District.

June 25, 1991.
Rehearing Denied September 11, 1991.

*20 Black & Furci, and Roy E. Black, and Marisa T. Mendez, Miami, for appellant.

Robert A. Butterworth, Atty. Gen., and Richard L. Shiffrin, Sp. Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and JORGENSON and GERSTEN, JJ.

PER CURIAM.

Appellant, William Lozano (Lozano), appeals his convictions and sentences on two counts of manslaughter. We reverse for a new trial.

FACTS

Lozano was employed as a City of Miami police officer. On the day of the incident giving rise to the convictions, and unknown to Lozano, Clement Lloyd (Lloyd) and Allan Blanchard (Blanchard), two males riding a motorcycle, were committing a traffic infraction some distance away. Another police unit attempted to stop the motorcycle to issue a citation, but it sped away and a chase ensued.

The police unit followed the motorcycle as it travelled in the direction of Lozano. As the chase neared Lozano's location, Lozano and his partner could hear the siren of an approaching police vehicle, and could even see the flashing emergency lights.

*21 As the vehicles approached, Lozano stepped into the street on which the vehicles travelled. Within seconds, the driver and passenger of the motorcycle lay dead: Lloyd, the driver, shot by Lozano; Blanchard, the passenger, dead from the resultant crash.

Within minutes, the neighborhood erupted into civil disturbances. Normal police procedures could not be followed. The scene of the shooting was not preserved, and vital physical evidence was lost.

The riots were extensively reported by the media. The media coverage was further increased by the presence of national and international reporters in Miami to cover the Super Bowl. The Miami riots became world news.

Because of the extensive media coverage and the facts that violence had followed both the incident itself and prior acquittals in similar so-called police brutality cases, Lozano sought a change of venue. In support of his motion for that relief, he provided the court with more than 375 affidavits, 500 newspaper articles, as well as with other supporting exhibits.

Lozano also sought a hearing on the motion, in order to present live testimony regarding the widespread concern over the prospect of unrest in the area if there were verdicts of not guilty. The trial court denied the motion for a change of venue, and it denied Lozano a full-scale hearing on the motion. The case proceeded to trial.

During pretrial motions, the State sought to exclude evidence of past criminal acts by Lloyd, and drug use and drug possession by Blanchard. The trial court granted the State's motion, and precluded the defense from presenting any collateral crimes evidence relating to the victims.

Lozano sought to exclude from the trial evidence, testimony regarding police departmental policies on the use of deadly force. This testimony tended to show that Lozano violated the police department's policy prohibiting shooting at a moving vehicle. The trial court denied Lozano's motion in limine and permitted the State to present evidence of police policy, rules, and regulations.

Because this evidence was admitted, Lozano sought a jury instruction which would include a special instruction on the justifiable use of force by a police officer. The trial court denied the specially requested jury instruction. Instead, the trial court gave the standard jury instructions pertaining to the use of force by law enforcement officers, and to self-defense.

I.

SUFFICIENCY OF EVIDENCE

We hold that the evidence was amply sufficient to support the verdicts, and therefore reject Lozano's contention that he is entitled to an acquittal as a matter of law. However, we find that errors committed by the lower court require that a new trial be conducted.

II.

CHANGE OF VENUE

Appellant contends that the failure to grant the motion for a change of venue, and the denial of a hearing on the motion, constitute an abuse of discretion. Appellant argues that such abuse deprived him of a fair trial.[1]

The courts of this State have steadfastly held to two major principles: (1) that the application for a change of venue is addressed to the sound discretion of the trial court;[2] and, (2) that in determining a motion for a change of venue, of utmost consideration *22 is whether the defendant can obtain a fair and impartial trial.[3] In addressing these two considerations, the Florida Supreme Court stated:

[A] determination must be made as to whether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely on the evidence presented in the courtroom.

Manning v. State, 378 So.2d at 276 (citing McCaskill v. State, 344 So.2d 1276 (Fla. 1977)).

In determining the necessity for a change of venue, the court:

Must liberally resolve in favor of the defendant any doubt as to the ability of the State to furnish a defendant a trial by fair and impartial jury.

Singer v. State, 109 So.2d at 14.

Where the evidence presented reflects prejudice, bias, and preconceived opinions, the trial court is bound to grant the motion. Manning v. State, 378 So.2d at 276.

The State correctly sets forth the test for judging a claim of prejudice in a denial for a change of venue:

[T]he defendant has the burden of coming forward and showing that the setting of the trial is inherently prejudicial because of the general atmosphere and the state of mind of the inhabitants of the community.

Manning v. State, 378 So.2d at 276; see Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975).

This case also invokes the doctrine, founded upon the Sixth Amendment right to an impartial jury, that every criminal defendant is entitled to a trial free of prejudice inherent in the circumstances which present an "unacceptable risk ... of impermissible factors coming into play." Estelle v. Williams, 425 U.S. 501, 505, 96 S.Ct. 1691, 1693, 48 L.Ed.2d 126, 131 (1976); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543, rehearing denied, 382 U.S. 875, 86 S.Ct. 18, 15 L.Ed.2d 118 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Woods v. Dugger, 923 F.2d 1454 (11th Cir.1991); Norris v. Risley, 918 F.2d 828 (9th Cir.1990).

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

Related

JONATHAN MATTHEW ALEDDA v. THE STATE OF FLORIDA
District Court of Appeal of Florida, 2022
State of Iowa v. Lee Samuel Christensen
929 N.W.2d 646 (Supreme Court of Iowa, 2019)
Silva v. State
259 So. 3d 278 (District Court of Appeal of Florida, 2018)
Wilson v. State
971 So. 2d 963 (District Court of Appeal of Florida, 2008)
Martinez v. State
933 So. 2d 1155 (District Court of Appeal of Florida, 2006)
Smith v. State
888 So. 2d 112 (District Court of Appeal of Florida, 2004)
State of Tennessee v. Jeremy Davis
Court of Criminal Appeals of Tennessee, 2004
Gensler v. State
868 So. 2d 557 (District Court of Appeal of Florida, 2004)
Berrios v. State
781 So. 2d 455 (District Court of Appeal of Florida, 2001)
Zile v. State
710 So. 2d 729 (District Court of Appeal of Florida, 1998)
Lopez v. State
632 So. 2d 188 (District Court of Appeal of Florida, 1994)
Vasilinda v. Lozano
631 So. 2d 1082 (Supreme Court of Florida, 1994)
Simon v. State
633 So. 2d 407 (Mississippi Supreme Court, 1993)
State v. Crafts
627 A.2d 877 (Supreme Court of Connecticut, 1993)
Gonzalez v. State
619 So. 2d 527 (District Court of Appeal of Florida, 1993)
State v. Lozano
616 So. 2d 73 (District Court of Appeal of Florida, 1993)
Fuentes v. State
613 So. 2d 481 (District Court of Appeal of Florida, 1992)
State v. Gary
609 So. 2d 1291 (Supreme Court of Florida, 1992)
Barnes v. State
592 So. 2d 1127 (District Court of Appeal of Florida, 1992)
Powell v. Superior Court
232 Cal. App. 3d 785 (California Court of Appeal, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
584 So. 2d 19, 1991 WL 110859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lozano-v-state-fladistctapp-1991.