final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 14-16526A, Charles Johnson, Judge.
F. Zenobi, Criminal Conflict and Civil Regional Counsel,
Third Region, and Philip L. Reizenstein, Chief Assistant
Regional Counsel, for appellant.
Moody, Attorney General, and Linda Katz, Assistant Attorney
General, for appellee.
LOGUE, HENDON, and LOBREE, JJ.
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.
The State's opening statement.
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, 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
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
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)).
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