SATURNINO SERRANO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Saturnino Serrano appealed his convictions for attempted second-degree murder with a firearm, burglary of an occupied dwelling while armed, and simple battery. The appellate court rejected all three of his arguments and affirmed the convictions and sentences.
The trial court did not commit reversible error on any of the three issues. The late disclosure of the expert did not prejudice the defendant because the expert's opinion was effectively conceded and the central issue was aggressor status, not gunshot residue evidence. The jury reinstructions presented no fundamental error and were not objected to. The prosecutor's argument to the jury was proper.
[1] A trial court does not commit reversible error by allowing a gunshot residue expert to testify and denying a motion for continuance to obtain a rebuttal expert when a dis…
[2] A trial court's decision to allow expert testimony despite a discovery violation is proper when the violation is not willful and the defendant is not prejudiced.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The court conducted a Richardson hearing and properly concluded that (1) the discovery violation was not willful, and (2) the defendant was not prejudiced in his preparation for trial by this nondisclosure.”
Establishes the standard for evaluating late expert disclosure and the court's findings on willfulness and prejudice.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSerrano was convicted of attempted second-degree murder with a firearm, burglary of an occupied dwelling while armed with an assault and battery, and …
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PER CURIAM.
This is an appeal by the defendant Saturni-no Serrano from final judgments of conviction and sentences for attempted second-degree murder with a firearm, burglary of an occupied dwelling while armed [together with an assault and battery therein], and simple battery. The defendant presents three points on appeal, none of which present reversible error; accordingly, we affirm.
First, the trial court did not, as urged, commit reversible error by allowing a gunshot residue expert to testify for the state and in denying a motion for continuance to obtain a rebuttal expert witness, even though the identity of the state’s expert was not revealed to defense counsel until the day jury selection began below. The court conducted a Richardson hearing and properly concluded that (1) the discovery violation was not willful, and (2) the defendant was not prejudiced in his preparation for trial by this nondisclosure. The subject expert did not conduct his tests and obtain his results until the eve of trial, following which the defense counsel was promptly informed; moreover, the defendant in his statement to the police and argument to the jury did not deny the ex pert’s opinion in the case, and in effect conceded same to be true, namely, that both the defendant and the victim had touched a firearm in this case; the central issue tried below was whether the defendant or the victim was the aggressor in an otherwise admitted altercation between the defendant and the victim. Given this concession, it was affirmatively shown that the defendant was not prejudiced in his preparation for trial by this late-revealed expert witness; nor was a defense continuance required to obtain a defense rebuttal expert as such a witness would have contradicted, rather than supported the proffered defense in this ease. Cooper v. State, 336 So. 2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977).
Second, the defendant’s jury rein-struetion point has no merit as there is no indication in the record that the defendant objected to such reinstruction; moreover, the reinstruction does not present fundamental error. Castor v. State, 365 So. 2d 701 (Fla.1978). Finally, we conclude that the defendant’s point concerning the propriety of an argument to the jury made by the prosecuting attorney has no merit. See Breedlove v. State, 413 So. 2d 1, 8 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982); Gosney v. State, 382 So. 2d 838 (Fla. 5th DCA 1980).
Affirmed.
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Archibald v. State, 715 So. 2d 1154 (Fla. 4th DCA 1998)…ions, the trial court supplied the jury with a written copy of one instruction but failed to supply written copies of the remaining instructions. However, since appellant failed to object, the issue is not preserved for appeal. See Serrano v. State, 639 So. 2d 68, 69 (Fla. 3d DCA 1994); see also State v. Delva, 575 So. 2d 643, 644 (Fla.1991)(jury instruction errors subject to contemporaneous objection rule and are not reviewable absent objection); Rojas v. State, 552 So. 2d 914, 915 (Fla.1989)(objection requ…
Authorities Cited
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- Tison v. Arizona (two cases), 459 U.S. 882 (U.S. 1982)
- Cooper v. State, 336 So. 2d 1133 (Fla. 1976)
- Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 413 So. 2d 1 (Fla. 1982)
- Velsicol Chem. Corp. v. Env't Prot. Agency, 431 U.S. 925 (U.S. 1977)
- McArthur Breedlove v. State, 413 So. 2d 1 (Fla. 1982)
- Gosney v. State, 382 So. 2d 838 (Fla. 5th DCA 1980)