Solano v. State

35 So. 3d 930, 2010 Fla. App. LEXIS 4507, 2010 WL 1329575
District Court of Appeal of Florida·Decided April 7, 2010·No. 3D07-3210·Published·Cited by 3 cases

Opinions

COPE, J.

Mynor Solano appeals his conviction for second-degree murder, claiming that there is a reversible evidentiary error and contending that there is fundamental error in a jury instruction. We conclude that while there was an evidentiary error, the error is harmless under the circumstances of this case, and we reject the claim of fundamental error with regard to the jury instruction.

Defendant-appellant Solano had a romantic and sexual relationship with the victim, Gregorio Rodriguez, for approximately four years. Eventually the victim began dating another man and the defendant found out about it. The defendant and the victim quarreled about this. The State contended that the defendant had killed the victim out of jealousy. The defendant testified that during the quarrel, the victim attacked him and the defendant killed the victim in self-defense.

The first question is whether the trial court erred by admitting into evidence a small cauldron in which the murder weapon, a hammer, was found. When the police searched the defendant’s apartment, they found the cauldron in the defendant’s closet. The cauldron, which might otherwise be described as a miniature black kettle, is about six inches across and six inches tall. It contained 20 small sticks, a knife, a small stake,1 and the murder weapon. The police photographed the hammer in the cauldron as they found it.

[932]*932Prior to trial, the defense filed a motion in limine seeking to exclude the cauldron, and photographs of the cauldron, from evidence. The defendant practices Santería, a religion which is controversial because its practices include animal sacrifice. See Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). According to the defense, the cauldron was an object which was related to the defendant’s practice of Santería. The defense argued that the unfair prejudice from introducing the cauldron and photos into evidence would outweigh whatever marginal relevance the object might have. See § 90.403, Fla. Stat. (2007). The court precluded the introduction of several items which would connect the defendant with Santería. The State contended, however, that it was permissible to introduce the cauldron and photos to show chain of custody of the murder weapon.

The trial court allowed the cauldron and two photographs to come into evidence, but prohibited the parties from mentioning Santería, or the purpose of the cauldron and its contents. The court also allowed the cauldron and sticks to be introduced into evidence and shown to the jury.2 In closing argument, the prosecutor mentioned the cauldron several times and said “A person who is defending himself does not take those items [the victim’s property] and put them in a cauldron in a closet surrounded by candles.”

We respectfully disagree with the trial court regarding the ruling on this motion in limine. In this case the defendant had admitted killing the victim with the hammer and the entire issue was whether he had done so in self-defense. All the jury needed to know was the undisputed fact that the hammer had been found in the defendant’s closet, a point the defense conceded. As the defense argued, if the hammer had been found in a wastebasket instead of a cauldron, it is unlikely that the State would have sought to introduce the wastebasket into evidence. In any event, there was an unacceptable risk that one or more jurors would know, or guess, the purpose of the cauldron and its contents— and any such juror knowledge or speculation would not be favorable to the defendant. We therefore conclude that the unfair prejudice outweighed the probative value, if any. See State v. Williams, 992 So.2d 330, 333-34 (Fla. 3d DCA 2008). The item should have been excluded.

Under the circumstances of this case, however, we conclude that the error was harmless beyond a reasonable doubt. That is so because the Medical Examiner’s testimony demonstrated that the murder could not have occurred in the way that the defendant testified. By the defendant’s account, the defendant and the victim quarreled about the new boyfriend the victim was seeing. The conversation became heated and according to the defendant, the victim said “go to hell, I feel like killing you.” The defendant said he then concluded that “before he does it, I’ll do it myself.” The defendant stated that the victim was seated on the edge of the bed. According to the defendant, the victim leaned forward to grab an exercise dumbbell, apparently intending to use the dumbbell to attack the defendant. The defendant stated that he grabbed a hammer which was on the floor. The defendant stated that he struck the victim on the back of the head with the hammer and pushed him on the bed. According to the defendant, the victim fell face down onto the bed and the defendant hit him with the hammer two more times.

[933]*933The Medical Examiner testified that this scenario was highly unlikely. The victim was killed with three severe hammer blows to the top and upper rear portion of the skull. The Medical Examiner said that after the first blow, the victim likely would have fallen to the floor and been incapacitated.

When the victim was found, he was in his bed, lying on his stomach with his arms moderately outstretched along each side of his head. His shirt was off. His glasses, which he always wore, were neatly folded and being held in the victim’s left hand. There was extensive blood spattered on the headboard of the bed and the wall above the headboard. There was no blood trail, no physical evidence that the body had been moved, and no testimony by the defendant that he had moved the body.

By the defendant’s account, the defendant struck the -victim while he was seated on the edge of the bed and was reaching downward. According to the Medical Examiner’s testimony, the victim likely would have fallen and not been able to move. Under the defendant’s account, despite receiving this blow, the victim would have had to stand up, be pushed by the defendant and turn around, collapse on the bed, and remove his own glasses, after which the defendant struck two more severe blows which caused blood spatter all over the headboard and wall above the headboard. Given the Medical Examiner’s testimony, no reasonable juror could have accepted the defendant’s account of the murder.3

By the defendant’s account the victim lived for two or three minutes. Although the defendant professed great love for the victim, he did not summon emergency assistance. Instead he stayed in the victim’s apartment for two hours, in which he used the victim’s cellphone to take pictures of the now-deceased victim. Claiming that he was owed money, the defendant took the victim’s wallet, laptop computer, and two cellphones, plus the victim’s family photographs. The defendant used the victim’s cellphones to send text messages pretending to be the victim. These included a message to the victim’s new boyfriend (about whom the victim and the defendant had quarreled), telling the new boyfriend that the victim was breaking up with him. We are satisfied that the evidentiary error regarding the cauldron is harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

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Solano v. State, 35 So. 3d 930, 2010 Fla. App. LEXIS 4507, 2010 WL 1329575 (Fla. Ct. App. 2010).

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