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Barnes v. State

Florida Court of Appeals, Third District

September 11, 2019

Albert Louis Barnes, Appellant,
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, Lower Tribunal No. 14-16526A, Charles Johnson, Judge.

          Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Philip L. Reizenstein, Chief Assistant Regional Counsel, for appellant.

          Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney General, for appellee.

          Before LOGUE, HENDON, and LOBREE, JJ.

          HENDON, J.

         Albert Louis Barnes ("Barnes") was convicted after a jury trial of three counts of attempted first degree (premeditated) murder and one count of witness tampering. Barnes seeks a new trial, arguing that the trial court erroneously denied his motion for mistrial. Barnes asserts he was substantially prejudiced by the State's opening statement referring to certain Facebook photos that were later deemed inadmissible, as well as the introduction of certain Facebook photos admitted over defense counsel's objection. For the reasons that follow, we affirm.

         1) The State's opening statement.

         Background: The three shooting victims consistently testified that it was Barnes who shot them, and he shot them with a black semi-automatic handgun with an extended clip. The weapon Barnes was accused of using was not recovered from the scene of the charged offenses. Rather, it was recovered from George Avila[1], an associate of Barnes who was being investigated in a separate, unrelated matter. Bullet casings found at Barnes's crime scene, however, were proven to have been fired from the weapon found with Avila. No DNA or fingerprints were found on either the gun or the spent casings. Barnes does not dispute that the weapon recovered from Avila was the same gun used to shoot at the three victims in his case. His defense at trial was that he was merely a high school kid who was not involved in the shootings. Thus, the State sought to establish that Barnes had a more-than- passing connection to Avila, and consequently had access to the weapon that eventually made its way to Avila, thereby implicating Barnes in the crime. In its opening statement the prosecutor stated:

Now, you're also going to hear about a person named George Avila. On July 7, 2014 George Avila was arrested by the police on a completed unrelated case that has nothing to do with the charges in this case. When George was arrested, he had a gun on him, a semi-automatic firearm. That gun that he had on him is the exact same gun that was used in this attempted murder.
George Avila is an associate of Albert Barnes. And you're going to see also that Albert Barnes not only is associated with George Avila, Albert Barnes, they also have photos of him [Avila] holding a semiautomatic firearm with an extended clip just like the one that was used in this case.

         Barnes argues that the trial court should have granted a mistrial on grounds that the State's opening comment was so prejudicial as to vitiate the fairness of the trial, because there was no evidence to connect that gun to him or to the charged crime.

         We review denial of a motion for mistrial by an abuse of discretion standard. Knight v. State, 76 So.3d 879, 885 (Fla. 2011). The standard requires that a mistrial be granted only "when an error is so prejudicial as to vitiate the entire trial, and necessary to ensure that the defendant receives a fair trial." Id. The State's comments must either "deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise." Salazar v. State, 991 So.2d 364, 372 (Fla. 2008) (quoting Spencer v. State, 645 So.2d 377, 383 (Fla.1994)).

         The comment in the State's opening statement was not a basis to declare a mistrial. Opening statements "are not evidence, and the purpose of opening argument is to outline what an attorney expects to be established by the evidence." Occhicone v. State, 570 So.2d 902, 904 (Fla. 1990) (citing Whitted v. State, 362 So.2d 668 (Fla. 1978)). Further, the "control of comments is within the trial court's discretion." Occhione, 570 So.2d at 904; see also Gonzalez v. State, 990 So.2d 1017, 1024-25 (Fla. 2008). The trial court ultimately excluded from evidence the photo(s) of Avila and Barnes together. The trial court also did not allow into the trial the fact that Barnes and Avila were Facebook friends. Nonetheless, the State's comments did not lead to ...

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