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Lugo v. State2/20/2003
ed. Moreover, our review of the prosecution's comments does not reveal that any of Lugo's defenses were specifically and pointedly discredited. Therefore, we decline to grant relief on that basis.
The other cases on which Lugo relies are distinguishable. In First v. State, 696 So. 2d 1357 (Fla. 2d DCA 1997), the district court reversed the defendant's conviction when the prosecution, during opening argument, called the defendant's main alibi witness a "liar." Unlike the circumstances in this case, counsel for the defendant in First contemporaneously objected to the prosecution's comment. Moreover, in First the district court noted the completely circumstantial nature of the evidence against the defendant and its less than compelling nature. Conversely, in Lugo's case, direct evidence in the form of testimony by Jorge Delgado and others familiar with Lugo's involvement in the various schemes with which he was charged-not to mention the physical evidence garnered against Lugo along with his leading police to the location where Griga and Furton's body parts could be found-presents a much more compelling case for Lugo's guilt. We therefore cannot conclude that error occurred in the prosecution's opening statement such that it "reache down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." McDonald v. State, 743 So. 2d 501, 505 (Fla. 1999) (quoting Urbin v. State, 714 So. 2d 411, 418 n.8 (Fla. 1998)).
Lugo's reliance on Traina v. State, 657 So. 2d 1227 (Fla. 4th DCA 1995), is also unavailing. While the opinion in Traina states that it is improper for a prosecutor to attack a defendant's character, the court nevertheless concluded in Traina that the challenged comments did not constitute reversible error in light of the evidence of the defendant's guilt. Finally, in Fernandez v. State, 730 So. 2d 277 (Fla. 1999), on which Lugo also relies, we noted that although the prosecution characterized the defendant as a "robber" and "murderer," these statements were generally supported by record evidence. In Lugo's case, the evidence shows that the murder victims were in fact preyed upon, tortured, dismembered, and burned, which the prosecution detailed in its opening statement in sometimes graphic terms. While we caution both prosecution and defense counsel in every trial to focus the opening statements on the evidence and facts to be proven, we cannot say that when viewed in the totality of the circumstances of Lugo's case, the prosecution's comments drifted so far afield from the evidence adduced at trial as to constitute fundamental error. At most, selected comments by the prosecutor were intemperate and may have walked the edge of emotion, but the error, if any, was ultimately harmless. Therefore, no relief is warranted on this issue.
Adverse Cross-Examination by Co-defendant Doorbal
Next, Lugo claims that his right to a fair trial was impinged by co-defendant Noel Doorbal's adverse cross-examination of several State witnesses. Lugo asserts that this cross-examination attempted to shift all blame to Lugo and effectively compelled Lugo to defend against two different prosecution teams: the State and his co-defendant, Doorbal.
Lugo asserts a litany of instances in the record in which he alleges that cross-examination by Doorbal made him appear to be doubly guilty in the eyes of the jury. However, we agree with the State that in most, if not all, of the instances cited by Lugo, Doorbal's cross-examination of witnesses amounted to an examination of the evidence the State had presented. This evidence in many instances not only inculpated Lugo but also Doorbal. Each defenda
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