VALENCIA v. STATE (2006)

The primary issue raised on this appeal from a conviction for first degree murder with a firearm concerns the admission of evidence-over a general objection to all three references-that, a few weeks before the crime, the defendant displayed three firearms, one of which may well have been the weapon involved in this offense.¹  We conclude that, even if this ruling may arguendo have been erroneous-which we do not decide, see O'Connor v. State, 835 So.2d 1226, 1230-31 (Fla. 4th DCA 2003), and cases collected-it was, under the circumstances of all of the evidence in the case, which raised no substantial question that the defendant committed the crime, harmless beyond a reasonable doubt.   See § 924.051, Fla. Stat. (2005);  Knowles v. State, 848 So.2d 1055 (Fla.2003);  Goodwin v. State, 751 So.2d 537 (Fla.1999);  Moore v. State, 701 So.2d 545 (Fla.1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1536, 140 L.Ed.2d 685 (1998);  State v. Lee, 531 So.2d 133 (Fla.1988);  State v. DiGuilio, 491 So.2d 1129 (Fla.1986);  O'Connor, 835 So.2d at 1232;  Herman v. State, 396 So.2d 222 (Fla. 4th DCA 1981), cert. dismissed, 402 So.2d 610 (Fla.1981).²

The other point concerns a jury instruction which was not shown to be harmfully erroneous-let alone, as required for reversal because there was no preservation below-fundamentally so.

Affirmed.

The firearm testimony was properly admitted into evidence.   That being so, it is not necessary to reach the issue of harmless error.

The firearm examiner testified that the projectile which struck the victim was .38 caliber.   He said that the projectile was probably fired from a revolver, most likely a .38 special or .357 magnum.

Witness Sanchez, a friend of the defendant, testified that several weeks before the murder, the defendant showed him three guns he owned, a .38, a .22, and a nine millimeter.   This testimony was admitted over objection in substance that the weapon was insufficiently tied to the crime, and that the testimony was unfairly prejudicial.   The trial court overruled the objection.

The trial court's ruling was within its discretion.   The Fourth District has summarized the rule applicable in this situation as follows:

In Herman v. State, 396 So.2d 222 (Fla. 4th DCA 1981) cert. dismissed, 402 So.2d 610 (Fla.1981), the state's expert testified that he was unable to say one way or another whether the shotgun admitted at trial was the murder weapon.   Testimony showed only that the defendant's shotgun was of the same caliber as the shell casings found at the murder scene.   Nonetheless, our court held that the matching caliber was a circumstance of some probative value, stating:

The expert's testimony that he could not say one way or the other whether the shotgun admitted was the murder weapon, was not conclusive or binding on the jury which was free to determine credibility and weight to be ascribed․ Under those circumstances, the jury would be entitled to consider the shotgun and give whatever weight was due in light of the expert's testimony.

Council v. State, 691 So.2d 1192, 1194 (Fla. 4th DCA 1997);  see also United States v. Gandolfo, 577 F.2d 955, 959 (5th Cir.1978).

The majority opinion suggests that the decision in O'Connor v. State, 835 So.2d 1226, 1230-31 (Fla. 4th DCA 2003), is to the contrary, but it is not.   In O'Connor, the murder weapon was a nine millimeter handgun.   The State introduced a photograph of a shotgun found in O'Connor's room, even though the victim had been shot by a handgun, not a shotgun.   In O'Connor the introduction of the photograph of the shotgun was error, because there was no evidence indicating that the shotgun had been used in the crime.   In the present case, by contrast, the murder weapon was either a .38 or .357 revolver, and the defendant owned a .38 at the relevant time.   I concur with the disposition of the jury instruction issue.

FOOTNOTES

1.   The defendant showed a witness a .22 caliber, a .38 caliber and a 9 millimeter firearm.   Although the actual murder weapon was not recovered, the testimony concerning the fatal bullets, which were, demonstrated only that they “could” have been fired from either a .38 special caliber revolver or a .357 magnum caliber revolver.

2.   In McIntosh v. State, 858 So.2d 1098 (Fla. 4th DCA 2003), review denied, 870 So.2d 823 (Fla.2004), the court held it was harmful error not to exclude two guns not shown to be involved in the crime, while admitting the murder weapon which was found with them.   While we consider this holding dubious even on its own facts, it is distinguishable because, unlike this case where there was only a blanket objection to all three weapons, McIntosh objected specifically to the two weapons unconnected to the crime.   See Cannady v. State, 620 So.2d 165 (Fla.1993)(general objection to four potential jurors does not preserve issue of qualifications of any one of them);  Thompson v. State, 589 So.2d 1013, 1014 (Fla. 2d DCA 1991)(general hearsay objection to victim's entire statement does not preserve issue when “[p]ortions of that statement were admissible as exceptions to the hearsay rule [and][n]o attempt was made to limit the objection to the inadmissible portions of the statement”);  55 Fla. Jur.2d Trial § 74, at 442 (2000)(“An objection to evidence as a whole, part of which is admissible, is properly overruled.   Thus, an objection to the entire testimony of a witness is properly overruled when a part of his statement is admissible.”).

SCHWARTZ, Senior Judge.

WELLS, J., concurs.