Florida Criminal Law Opinions

DERRICK MCLEAN, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. SC07-2297.

Supreme Court of Florida.

February 11, 2010.

An Appeal from the Circuit Court in and for Orange County, Julie Hions O’Kane, Judge — Case No. 48-2004-CF-15923-O.

James S. Purdy, Public Defender, and George D.E. Burden, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, for Appellant.

Bill McCollum, Attorney General, Tallahassee, Florida, and Scott A. Browne, Assistant Attorney General, Tampa, Florida, for Appellee.

PER CURIAM.

This case is before this Court on appeal from the judgment of the trial court convicting Derrick McLean of first-degree murder and sentencing him to death.¹ For the reasons that follow, we affirm his conviction and sentence.

I. FACTS AND PROCEDURAL BACKGROUND

Derrick McLean was sentenced to death for the November 2004 murder of Jahvon Thompson. The jury found McLean guilty of first-degree felony murder, attempted home invasion robbery with a firearm, attempted first-degree murder, kidnapping with intent to commit a felony with a firearm, and attempted robbery with a firearm.

The evidence at trial revealed that on November 24, 2004, McLean, along with his cousin, Maurice Lewin, and acquaintance, James Jaggon, drove to the apartment where the victim, fifteen-year-old Jahvon Thompson, lived with his father in Orlando. McLean, Lewin, and Jaggon planned that morning to rob the apartment of marijuana or money or both. On the way to the apartment, the three men agreed that McLean and Jaggon would commit the robbery and Lewin would wait in the car. Although all three men had guns, there was no discussion of shooting or killing anyone during the commission of the robbery. McLean and Jaggon, each armed with a gun, knocked on the victim’s door and, when the victim opened the door, rushed into the apartment. McLean was wearing a black baseball cap and batting gloves, and Jaggon was wearing a ski mask. Lewin remained nearby in the car, his gold Buick, and maintained an open line between his Samsung cell phone and McLean’s Nokia cell phone.

Meanwhile, the victim’s next-door neighbor, Theothlus Lewis, heard loud noises he thought might be music coming from Thompson’s apartment. Lewis told his girlfriend that he was going over to Thompson’s apartment to ask him to turn down the music. When Lewis knocked on the door, McLean opened the door, brandished a gun, and motioned for Lewis to enter the apartment. When Lewis entered the living room area, McLean asked him “where was the money at,” and Lewis turned his pockets inside-out, revealing he had nothing.

Then, Lewis saw Jahvon Thompson and Jaggon come from the hallway. Both Thompson and Lewis were ordered to sit on the couch. While McLean searched the apartment, Jaggon held Lewis and Thompson at gunpoint. At some point, McLean grabbed a blue pillow sham from a shelf and ordered Jaggon to leave the apartment, telling him to shoot the female next door if he saw her. Lewis testified that he sensed danger from the look in McLean’s eyes, so he dove to the floor, crawling toward the back of the apartment. McLean shot at Lewis, hitting him once in the back, and then fired several more shots at Thompson. The medical examiner found that each of the three gunshots to Thompson’s chest would have been fatal. After waiting for McLean to leave, Lewis returned to his apartment, where his girlfriend and her daughter had already called 911.

Meanwhile, Lewin and Jaggon drove off, McLean left the scene on foot, and the three men met up at a nearby restaurant. McLean, still carrying the blue pillow sham from the apartment, got into the car with Lewin and Jaggon, and Lewin pulled the car out onto the road. A police officer, who was driving an unmarked car in the vicinity and had been notified of the shooting, saw the gold Buick pass by, and he activated his lights and initiated pursuit. Lewin sped up and attempted to elude the officer but soon crashed into the marked patrol car of a sheriff’s deputy who was investigating an unrelated incident nearby. The deputy, who was in his marked car, saw the Buick coming at him and ran from his vehicle in order to get out of the way. Lewin’s car struck the marked car, sending it into the deputy, who was struck in the hip and thrown fifteen to twenty feet. The deputy saw Jaggon sitting in the front passenger seat of the Buick. He also saw McLean running from the Buick.

Additional law enforcement arrived on the scene of the crash. Officers who searched the area discovered a batting glove, black baseball cap, Nokia cell phone, shirt, and handgun discarded in the woods adjacent to the crash. A blue pillow sham containing marijuana was found in the backseat of Lewin’s Buick. McLean’s DNA was later detected on the shirt, pillow sham, and batting glove. The Nokia cell phone discovered in the woods near the crash was determined to be registered to McLean’s girlfriend. Cell phone records revealed calls between this Nokia phone and Lewin’s phone on the day of the crime. The Nokia phone also contained images of a semiautomatic firearm.

At trial, Lewin and Jaggon testified that the weapon McLean carried during the crimes was a .380. Eight shell casings found in the victim’s apartment were consistent with having been fired from a .380 Hi-Point semiautomatic. About six months after the crime, law enforcement found a .380 Hi-Point semiautomatic in the woods about fifteen feet from the road where the crash had occurred. This handgun appeared to be the weapon in the images found on McLean’s cell phone.

The day after the crimes, Lewis worked with a police sketch artist to develop a composite of his shooter. Over the next few days, the Orlando Police Department showed Lewis three photo lineups—none including McLean, whose identity they had not yet learned—but Lewis did not recognize any of the individuals as the shooter. On December 1, Jaggon’s father told the police that a third man, who was Lewin’s cousin and named Derrick, was involved in the crime. A crime line tip also implicated a person named Derrick and provided information about where he lived, and this information led police to identify McLean as a suspect in the crime.

On December 9, police showed Lewis another photo lineup—this one containing McLean—and Lewis identified McLean as the shooter. Lewis said he was 90% certain about his identification but would be absolutely sure if he saw the suspect in person. Police then took McLean into custody for violation of probation, questioned him briefly about the murder, and arranged a live lineup of six individuals from which Lewis identified McLean as the shooter. Lewis also made an in-court identification of McLean as the man who shot him.

At trial, Jaggon and Lewin testified against McLean as part of their plea agreements for charges related to the events of November 24, 2004.² Jaggon and Lewin gave consistent accounts of McLean’s participation in the crime. Lewin also testified that when he asked McLean why he fired shots during the robbery, McLean replied that he “wanted to feel like what it feels like to shoot and kill somebody.”

During the penalty phase, the defense offered expert testimony regarding McLean’s psychological, mental, and emotional health as well as testimony from McLean’s older brother. One defense psychologist diagnosed McLean with an organic brain impairment, although the psychologist had no medical records or diagnostic studies to confirm any brain injury. Another defense psychologist testified that McLean had some history of substance abuse and functioned at the emotional level of an adolescent. Both psychologists diagnosed McLean with borderline personality disorder but found that he was of average intelligence. McLean’s brother testified to a history of some family dysfunction.

The jury voted nine to three in favor of a death sentence. After conducting a Spencer³ hearing, the trial court followed the jury’s recommendation, finding that the three aggravating factors outweighed several mitigating factors. Of the aggravators, the court found (1) that when McLean committed the murder, he had been previously convicted of a felony and placed on felony probation (moderate weight); (2) that McLean was previously convicted of a felony involving the use or threat of violence, based on McLean’s prior armed robbery conviction and the contemporaneous conviction for the attempted first-degree murder of Lewis (great weight); and (3) that McLean committed the murder during the commission of a robbery (great weight). The trial court found two statutory mitigating circumstances: (1) McLean’s mental or emotional disturbance at the time of the crime (little weight); and (2) McLean’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law (little weight). The court also found six categories of nonstatutory mitigating circumstances: (1) mental health issues (no weight); (2) substance abuse issues (little weight); (3) disparate treatment of codefendants (no weight); (4) family problems (little weight); (5) brain injury (little weight); and (6) miscellaneous factors, such as poor grades in high school, good behavior in court, and lack of positive role models in his youth (little weight).

II. ISSUES RAISED ON APPEAL

McLean claims that (A) the trial court erred by admitting photographic and live lineup identifications when law enforcement did not offer assistance of counsel; (B) the trial court erred in conducting a portion of the Nelson⁴ hearing in camera, outside McLean’s presence; (C) the trial court erred in instructing the jury on the avoid arrest aggravator; and (D) McLean’s death sentence is disproportionate.⁵ None of these claims warrant relief.

A. Motion to Suppress Lineup Identifications

McLean first claims that the trial court erred in denying his motion to suppress photographic and live lineup identifications because law enforcement did not offer assistance of counsel. We disagree.

Here, the trial court’s ruling on the motion to suppress was proper. Because both the photographic and live lineups occurred before any charges were filed against McLean, they were not critical stages of proceedings and did not trigger a right to counsel. See Ibar v. State, 938 So. 2d 451, 469-70 (Fla. 2006) (“The pre-arrest investigatory lineup . . . was not a `critical stage’ of the proceedings because when the lineup was conducted, it was not apparent that the government had decided to prosecute [the defendant] . . . .”). Because McLean was not entitled to the presence of counsel during these investigatory lineups, his rights were not violated when law enforcement failed to offer assistance of counsel. Accordingly, we affirm the trial court’s denial of McLean’s motion to suppress the results of the lineup identifications.

B. The Nelson Hearing

Next, McLean argues that that the trial court erred in conducting a portion of the Nelson hearing in camera, outside McLean’s presence. We disagree.

Before trial, McLean sent a letter to the trial court requesting that he be assigned new counsel, and the trial court held a Nelson hearing to consider McLean’s several grievances. During the Nelson hearing, McLean told the court that he had provided his counsel with the names of alibi witnesses but that “they never wanted to go speak to the people.” The trial court allowed defense counsel to respond in camera, outside the earshot of McLean or the State, to that particular issue so that it would not be on record with the State. Defense counsel adequately explained, to the trial court’s satisfaction, her investigator’s discussions with the alibi witnesses identified by McLean and her decision not to pursue their use as witnesses.

No error occurred when McLean could not hear a portion of the Nelson hearing proceedings because McLean was not entitled to a Nelson hearing on the issue being discussed. This Court has held that a defendant is not entitled to a Nelson hearing “where a defendant presents general complaints about defense counsel’s trial strategy and no formal allegations of incompetence have been made.” Morrison v. State, 818 So. 2d 432, 440 (Fla. 2002); see also Sexton v. State, 775 So. 2d 923, 931 (Fla. 2000) (holding that the defendant was not entitled to a Nelson hearing when he “was merely noting his disagreement with his attorney’s trial strategy . . . and was not asserting a sufficient basis to support a contention that his attorney was incompetent”). Here, McLean’s argument regarding the alibi issue raised disagreement with trial strategy and did not assert a sufficient basis to support a contention that his attorneys were incompetent. See Morrison, 818 So. 2d at 442. Furthermore, as in Morrison, 818 So. 2d at 442, the trial court made “sufficient inquiry to determine whether there was reasonable cause to believe that counsel was not rendering effective assistance.” Therefore, we find McLean’s Nelson argument to be without merit.

C. Jury Instruction on the Avoid Arrest Aggravator

McLean also claims that the trial court erred in instructing the jury on the avoid arrest aggravator, which the trial court ultimately rejected. We disagree.

Florida law provides that “evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating or mitigating circumstances.” § 921.141(1), Fla. Stat. (2004). Then, the trial court must instruct the jury on any aggravators for which competent substantial evidence is received. Aguirre-Jarquin v. State, 9 So. 3d 593, 607 (Fla. 2009) petition for cert. filed, No. 09-7370 (U. S. Aug. 10, 2009).

The avoid arrest aggravating circumstance applies when “[t]he capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.” § 921.141(5)(e), Fla. Stat. (2004). When the victim is not a law enforcement officer, the evidence must demonstrate beyond a reasonable doubt that “the sole or dominant motive for killing was to eliminate a witness.” Bevel v. State, 983 So. 2d 505, 518 (Fla. 2008) (quoting Buzia v. State, 926 So. 2d 1203, 1209 (Fla. 2006)). This Court has held that the evidence presented on the avoid arrest aggravator may be in the form of “circumstantial evidence from which the motive for the murders may be inferred.” Hoskins v. State, 965 So. 2d 1, 19 (Fla. 2007) (quoting Farina v. State, 801 So. 2d 44, 54 (Fla. 2001)).

Here, the State presented competent substantial evidence to support the avoid arrest aggravator. The victims were compliant and helpless when McLean shot them, and McLean had obtained the marijuana and was exiting the apartment when he fired the fatal shots. Such circumstances suggest that the shooting was intended to eliminate the witnesses. See Thompson v. State, 648 So. 2d 692, 695 (Fla. 1994) (“Once Thompson had obtained the $1,500 check from Swack and Walker, there was little reason to kill them other than to eliminate the sole witnesses to his actions.”). Also, McLean had instructed Jaggon to shoot the woman next door if he saw her, further indicating McLean’s intent to eliminate any potential witnesses. During the crime, McLean did not wear a mask or otherwise disguise his appearance, making a subsequent identification by one of the victims likely if McLean did not eliminate the witnesses.

With these facts presented, the jury instruction on this aggravator was not error. That the trial court later declined to find the aggravator does not render the jury instruction improper. See, e.g., Davis v. State, 928 So. 2d 1089, 1132 (Fla. 2005) (rejecting the defendant’s claim that “the trial court erred in allowing the jury to consider the avoiding or preventing a lawful arrest aggravator when the trial court found that this aggravating circumstance did not exist”); Pace v. State, 854 So. 2d 167, 181 (Fla. 2003) (“The fact that the state did not prove [the avoid arrest] aggravator to the trial court’s satisfaction does not require a conclusion that there was insufficient evidence . . . to allow the jury to consider the factor.”) (quoting Bowden v. State, 588 So. 2d 225, 231 (Fla. 1991)). Accordingly, the trial court did not err in instructing the jury on the avoid arrest aggravator.

D. Proportionality

McLean further claims that his death sentence is disproportionate. This claim is without merit.

Proportionality review “is not a comparison between the number of aggravating and mitigating circumstances.” Crook v. State, 908 So. 2d 350, 356 (Fla. 2005) (quoting Urbin v. State, 714 So. 2d 411, 416 (Fla. 1998)). Instead, the Court considers the totality of the circumstances to determine if death is warranted in comparison to other cases where the death sentence has been upheld. Davis v. State, 859 So. 2d 465, 480 (Fla. 2003).

The circumstances of this case reveal murder by shooting, committed during the course of a robbery. Evidence was presented indicating that McLean was of average intelligence and suffered from borderline personality disorder. McLean was a felon on probation and was also subject to the prior violent felony aggravator based on his previous conviction for armed robbery and for his contemporaneous conviction for attempted first-degree murder. Of these three aggravators, the trial court gave “moderate weight” to McLean’s status as a felon on probation, “great weight” to the contemporaneous robbery, and “great weight” to McLean’s prior violent felony convictions. The trial court gave “little weight” to the statutory mental mitigators of McLean’s mental or emotional disturbance at the time of the crime and his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, “little weight” to the nonstatutory mitigators of substance abuse issues, family problems, brain injury, and miscellaneous factors, and “no weight” to the nonstatutory mitigators of mental health issues and the disparate treatment of codefendants.

Considering those circumstances, the aggravating and mitigating factors weighed by the trial court, and other cases with similar facts, we conclude that the death sentence imposed on McLean is proportionate. See, e.g., Hayward v. State, 34 Fla. L. Weekly S486 (Fla. Aug. 27, 2009) (death sentence proportionate with prior violent felony aggravator and merged committed during a robbery/committed for pecuniary gain aggravator and nonstatutory mitigators including academic problems, an absent father, some capacity for rehabilitation, and financial stress at the time of the crime); LaMarca v. State, 785 So. 2d 1209 (Fla. 2001) (death sentence proportionate with prior violent felony aggravator and nonstatutory mitigators of good behavior at trial, substance abuse issues, and mental disorders); Shellito v. State, 701 So. 2d 837 (Fla. 1997) (death sentence proportionate with prior violent felony aggravator and merged pecuniary gain/committed during a robbery aggravator and mitigators involving the defendant’s age, background, and character); Pope v. State, 679 So. 2d 710 (Fla. 1996) (death sentence proportionate with prior violent felony aggravator and pecuniary gain aggravator, statutory mitigators of mental or emotional disturbance at the time of the crime and impaired capacity to appreciate the criminality of conduct or to conform conduct to the requirements of the law, and nonstatutory mitigators including that defendant was intoxicated, was under the influence of mental or emotional disturbance, and acted after a disagreement with his girlfriend); Heath v. State, 648 So. 2d 660 (Fla. 1994) (death sentence proportionate with prior violent felony aggravator and commission during a robbery aggravator and mitigators of extreme mental or emotional disturbance caused by substance abuse, good character demonstrated in prison, and disparate treatment of codefendant).

III. SUFFICIENCY

McLean does not challenge the sufficiency of the evidence, but in death sentence appeals, this Court independently reviews the record to confirm that the jury’s verdict is supported by competent, substantial evidence. See Delgado v. State, 948 So. 2d 681, 689 (Fla. 2006).

The following evidence presented at trial is consistent with McLean’s guilt: (1) McLean’s two coperpetrators testified against him and described his participation in the crimes; (2) one of the victims identified McLean as the shooter in both photographic and live lineups; (3) several items containing McLean’s DNA were found discarded near the getaway car; (4) a .380 handgun of the type McLean was seen wielding during the crime was found discarded near the getaway car and was consistent with the bullets that killed Jahvon Thompson; (5) images of a similar-looking handgun were found on McLean’s cell phone; (6) cell phone records revealed calls between McLean and his coperpetrator Lewin on the day of the crimes; and (7) Lewin testified that McLean stated his motive for the murder was that “he wanted to feel what it feels like to shoot and kill somebody.”

Based on all of the above, we find the evidence sufficient to support McLean’s first-degree felony murder conviction.

IV. CONCLUSION

For the foregoing reasons, we affirm McLean’s conviction and his sentence of death.

It is so ordered.

PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

QUINCE, C.J., concurs in result only.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

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Notes:

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Courtesy of David Edelstein

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RORY ENRIQUE CONDE, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. SC06-1998.

Supreme Court of Florida.

February 11, 2010.

An Appeal from the Circuit Court in and for Dade County, Jerald Bagley, Judge — Case No. F95-019816.

Gustavo J. Garcia-Montes, Miami, Florida, for Appellant.

Bill McCollum, Attorney General, Tallahassee, Florida, Sandra S. Jaggard and Lisa A. Davis, Assistant Attorneys General, Miami, Florida, for Appellee.

PER CURIAM.

This case is before the Court on appeal from an order denying Rory E. Conde’s first motion to vacate his first-degree murder conviction and sentence of death under Florida Rule of Criminal Procedure 3.851 after an evidentiary hearing. Because the order concerns postconviction relief from a capital conviction for which a sentence of death was imposed, this Court has jurisdiction. See Art. V, § 3(b)(1), Fla. Const. We affirm the postconviction court’s order denying relief.

I. FACTS AND PROCEDURAL HISTORY

The facts of the underlying crime are set out in this Court’s opinion on Conde’s direct appeal, Conde v. State, 860 So. 2d 930 (Fla. 2003). We summarize them here only briefly. On January 13, 1995, Conde picked up Rhonda Dunn, a prostitute, and took her to his apartment. After engaging in sexual relations, Conde followed her out of the room and strangled her to death. Conde then drove to another location and left her body on the side of the road. Conde had done the same on five prior occasions to five other prostitutes. This series of murders was preceded by the breakup of Conde’s marriage, which occurred when his wife discovered that Conde was using the services of prostitutes. Conde was arrested in June 1995, after fire rescue personnel discovered a woman, naked and bound in duct tape, trapped in his apartment. Conde later confessed to all six murders and stated that after each murder, he knelt over the deceased body and verbally blamed the victim for his marital problems.

Conde was charged with the first-degree murder of all six victims. The counts were severed and his first trial, held in October 1999, was for Dunn’s murder. The trial court permitted the State to introduce Williams¹ rule evidence of the other five murders. The jury found Conde guilty of first-degree murder and recommended the death penalty by a nine-to-three vote. The trial court imposed a sentence of death, finding three aggravating circumstances,² one statutory mitigating circumstance,³ and five nonstatutory mitigating circumstances.⁴ Conde, 860 So. 2d at 937-38. On direct appeal, Conde raised thirteen claims.⁵ This Court affirmed. See id. at 959. Conde then filed the present rule 3.851 motion, wherein he raised seven claims.⁶ The postconviction court conducted a Huff⁷ hearing and then held an evidentiary hearing.⁸ The postconviction court ultimately denied relief on all grounds and this appeal followed, wherein Conde raises five claims.⁹

II. APPLICABLE STANDARDS

Pursuant to the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984), we have held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986). This requires that the defendant show that “counsel made errors so serious that counsel was not functioning as the `counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. Next, the reviewing court must determine whether there is a reasonable probability that, but for the deficiency, the result would have been different. Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

Under the Strickland standard, the Court employs a mixed standard of review, deferring to the postconviction court’s factual findings that are supported by competent, substantial evidence, but reviewing legal conclusions de novo. Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004).

III. ISSUES ON APPEAL

First, Conde contends that trial counsel was ineffective for failing to object to several allegedly improper prosecutorial statements made during closing arguments. The postconviction court summarily denied this claim, stating that the “[d]efendant cannot show prejudice pursuant to Strickland, supra.” We find that the prosecutor’s comments were insufficient to undermine confidence in the outcome as required under the Strickland prejudice standard. See Maxwell, 490 So. 2d at 932; see also Hitchcock v. State, 755 So. 2d 638, 643 (Fla. 2000) (“Any error in prosecutorial comments is harmless if there is no reasonable probability that those comments affected the verdict.”) (citing King v. State, 623 So. 2d 486, 487 (Fla.1993)). “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Strickland, 466 U.S. at 700. Having reviewed this claim, we find that Conde has failed to demonstrate that trial counsel was ineffective under Strickland . Accordingly, we affirm the postconviction court’s denial of relief.

In his second claim, Conde argues that the postconviction judge erred by not allowing Conde’s expert to testify to the prevailing norms of effective representation in capital cases relevant to Conde’s proceeding. Because we resolve the ineffectiveness issues in this case based on the prejudice prong of Strickland, we decline to address this issue. Accordingly, we deny relief on this claim.

In his third claim, Conde argues that his trial counsel was deficient in failing to timely discover and introduce the testimony of Chaplain Bazaro. Bazaro allegedly would have testified that Conde confided to him that Conde had been sexually abused as a child. Conde alleges that this testimony would have refuted the State’s claim that he recently fabricated his claims of abuse. We affirm the postconviction court’s denial of relief. This Court has already considered this claim in another form. In Conde’s direct appeal, he alleged that the trial court erred by excluding Chaplain Bazaro’s testimony. He raised the same substantive reasons there that he raises now in the guise of an ineffective assistance claim. This Court denied relief on direct appeal, explaining that “even if the trial court erred in excluding the chaplain’s testimony, the error was harmless beyond a reasonable doubt under the standard set forth in State v. DiGuilio.” Conde, 860 So. 2d at 958. Because this Court has already held that the exclusion of Bazaro’s testimony was harmless error, Conde cannot establish prejudice in his ineffective assistance of counsel claim. See, e.g., Cox v. State, 966 So. 2d 337, 347-48 (Fla. 2007). Accordingly, this claim is meritless.

Conde next alleges that his trial counsel was ineffective for failing to convey the negative impact on possible mitigation which resulted from a retracted plea offer of life imprisonment and for failing to seek enforcement of the plea offer. The postconviction court denied this claim. We affirm that denial. Though the postconviction court originally denied an evidentiary hearing on this issue at the Huff hearing, the court nevertheless received evidence at the evidentiary hearing over the State’s objection. The postconviction court noted the testimony from the evidentiary hearing claiming generally that once the plea offer was revoked, other potential witnesses in the case lost interest and stopped volunteering to help the defense team. Id. The postconviction court then denied relief because Conde had not alleged which witnesses lost interest and failed to testify or allege what their testimony would have been. The court further held that the claim was refuted by the record since coworkers as well as neighbors testified at trial on Conde’s behalf. Id.

In making an ineffective assistance of counsel claim, Conde was required to “identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards.” Maxwell, 490 So. 2d at 932. Further, he had to show that some deficiency “so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.” Id. Conde has not done either. He has not established what, if any, negative result occurred. He has not established who the additional witnesses were, what they would have testified to, or otherwise established how any disinterest resulting from the retracted plea agreement prejudiced him. He has also failed to explain what information the additional witnesses or additional evidence would have provided that was not already given by the witnesses who did testify in his defense.

By failing to demonstrate that additional witnesses would have testified and what those witnesses would have said, failing to explain how that testimony would improve on the testimony that was given in his case, and failing to explain how the additional testimony would interact with the other evidence and circumstances of his case, Conde has also failed to establish that he suffered any prejudice from counsel’s alleged deficiencies. These burdens of proof and of pleading were Conde’s to carry. See Strickland, 466 U.S. at 687; see also Chavez v. State, 12 So. 3d 199, 213 (Fla. 2009) (“The defendant has the burden of affirmatively establishing each prong of the Strickland standard.”). Accordingly, because Conde failed to establish prejudice under Strickland, we affirm the postconviction court’s denial of relief.

In Conde’s final claim, he argues that the postconviction court improperly denied his Ring v. Arizona, 536 U.S. 584 (2002), claim. This claim is procedurally barred as it was raised and rejected in Conde’s direct appeal. See Conde, 860 So. 2d at 959 (“Conde asserts that Florida’s capital sentencing scheme violates the United States Constitution under the holding of Ring v. Arizona . . . . We find that Conde is . . . not entitled to relief on this claim.”). Even if this claim were not barred, this Court has consistently rejected Ring claims similar to those Conde raises. See, e.g., Doorbal v. State, 837 So. 2d 940, 963 (Fla. 2003). Finally, Conde’s case involved the prior violent felony aggravator. This Court has held that this aggravator satisfies the requirements of Ring. See, e.g., Rodgers v. State, 948 So. 2d 655, 673 (Fla. 2006). Thus, we affirm the postconviction court’s rejection of this claim.

Conde has failed to demonstrate that he was prejudiced by any of the alleged deficiencies below and is not entitled to the requested relief. Accordingly, we affirm the postconviction court’s order denying Conde’s 3.851 motion.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

—————

Notes:

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Courtesy of David Edelstein

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DERRICK MCLEAN, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. SC07-2297.

Supreme Court of Florida.

February 11, 2010.

An Appeal from the Circuit Court in and for Orange County, Julie Hions O’Kane, Judge — Case No. 48-2004-CF-15923-O.

James S. Purdy, Public Defender, and George D.E. Burden, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, for Appellant.

Bill McCollum, Attorney General, Tallahassee, Florida, and Scott A. Browne, Assistant Attorney General, Tampa, Florida, for Appellee.

PER CURIAM.

This case is before this Court on appeal from the judgment of the trial court convicting Derrick McLean of first-degree murder and sentencing him to death.¹ For the reasons that follow, we affirm his conviction and sentence.

I. FACTS AND PROCEDURAL BACKGROUND

Derrick McLean was sentenced to death for the November 2004 murder of Jahvon Thompson. The jury found McLean guilty of first-degree felony murder, attempted home invasion robbery with a firearm, attempted first-degree murder, kidnapping with intent to commit a felony with a firearm, and attempted robbery with a firearm.

The evidence at trial revealed that on November 24, 2004, McLean, along with his cousin, Maurice Lewin, and acquaintance, James Jaggon, drove to the apartment where the victim, fifteen-year-old Jahvon Thompson, lived with his father in Orlando. McLean, Lewin, and Jaggon planned that morning to rob the apartment of marijuana or money or both. On the way to the apartment, the three men agreed that McLean and Jaggon would commit the robbery and Lewin would wait in the car. Although all three men had guns, there was no discussion of shooting or killing anyone during the commission of the robbery. McLean and Jaggon, each armed with a gun, knocked on the victim’s door and, when the victim opened the door, rushed into the apartment. McLean was wearing a black baseball cap and batting gloves, and Jaggon was wearing a ski mask. Lewin remained nearby in the car, his gold Buick, and maintained an open line between his Samsung cell phone and McLean’s Nokia cell phone.

Meanwhile, the victim’s next-door neighbor, Theothlus Lewis, heard loud noises he thought might be music coming from Thompson’s apartment. Lewis told his girlfriend that he was going over to Thompson’s apartment to ask him to turn down the music. When Lewis knocked on the door, McLean opened the door, brandished a gun, and motioned for Lewis to enter the apartment. When Lewis entered the living room area, McLean asked him “where was the money at,” and Lewis turned his pockets inside-out, revealing he had nothing.

Then, Lewis saw Jahvon Thompson and Jaggon come from the hallway. Both Thompson and Lewis were ordered to sit on the couch. While McLean searched the apartment, Jaggon held Lewis and Thompson at gunpoint. At some point, McLean grabbed a blue pillow sham from a shelf and ordered Jaggon to leave the apartment, telling him to shoot the female next door if he saw her. Lewis testified that he sensed danger from the look in McLean’s eyes, so he dove to the floor, crawling toward the back of the apartment. McLean shot at Lewis, hitting him once in the back, and then fired several more shots at Thompson. The medical examiner found that each of the three gunshots to Thompson’s chest would have been fatal. After waiting for McLean to leave, Lewis returned to his apartment, where his girlfriend and her daughter had already called 911.

Meanwhile, Lewin and Jaggon drove off, McLean left the scene on foot, and the three men met up at a nearby restaurant. McLean, still carrying the blue pillow sham from the apartment, got into the car with Lewin and Jaggon, and Lewin pulled the car out onto the road. A police officer, who was driving an unmarked car in the vicinity and had been notified of the shooting, saw the gold Buick pass by, and he activated his lights and initiated pursuit. Lewin sped up and attempted to elude the officer but soon crashed into the marked patrol car of a sheriff’s deputy who was investigating an unrelated incident nearby. The deputy, who was in his marked car, saw the Buick coming at him and ran from his vehicle in order to get out of the way. Lewin’s car struck the marked car, sending it into the deputy, who was struck in the hip and thrown fifteen to twenty feet. The deputy saw Jaggon sitting in the front passenger seat of the Buick. He also saw McLean running from the Buick.

Additional law enforcement arrived on the scene of the crash. Officers who searched the area discovered a batting glove, black baseball cap, Nokia cell phone, shirt, and handgun discarded in the woods adjacent to the crash. A blue pillow sham containing marijuana was found in the backseat of Lewin’s Buick. McLean’s DNA was later detected on the shirt, pillow sham, and batting glove. The Nokia cell phone discovered in the woods near the crash was determined to be registered to McLean’s girlfriend. Cell phone records revealed calls between this Nokia phone and Lewin’s phone on the day of the crime. The Nokia phone also contained images of a semiautomatic firearm.

At trial, Lewin and Jaggon testified that the weapon McLean carried during the crimes was a .380. Eight shell casings found in the victim’s apartment were consistent with having been fired from a .380 Hi-Point semiautomatic. About six months after the crime, law enforcement found a .380 Hi-Point semiautomatic in the woods about fifteen feet from the road where the crash had occurred. This handgun appeared to be the weapon in the images found on McLean’s cell phone.

The day after the crimes, Lewis worked with a police sketch artist to develop a composite of his shooter. Over the next few days, the Orlando Police Department showed Lewis three photo lineups—none including McLean, whose identity they had not yet learned—but Lewis did not recognize any of the individuals as the shooter. On December 1, Jaggon’s father told the police that a third man, who was Lewin’s cousin and named Derrick, was involved in the crime. A crime line tip also implicated a person named Derrick and provided information about where he lived, and this information led police to identify McLean as a suspect in the crime.

On December 9, police showed Lewis another photo lineup—this one containing McLean—and Lewis identified McLean as the shooter. Lewis said he was 90% certain about his identification but would be absolutely sure if he saw the suspect in person. Police then took McLean into custody for violation of probation, questioned him briefly about the murder, and arranged a live lineup of six individuals from which Lewis identified McLean as the shooter. Lewis also made an in-court identification of McLean as the man who shot him.

At trial, Jaggon and Lewin testified against McLean as part of their plea agreements for charges related to the events of November 24, 2004.² Jaggon and Lewin gave consistent accounts of McLean’s participation in the crime. Lewin also testified that when he asked McLean why he fired shots during the robbery, McLean replied that he “wanted to feel like what it feels like to shoot and kill somebody.”

During the penalty phase, the defense offered expert testimony regarding McLean’s psychological, mental, and emotional health as well as testimony from McLean’s older brother. One defense psychologist diagnosed McLean with an organic brain impairment, although the psychologist had no medical records or diagnostic studies to confirm any brain injury. Another defense psychologist testified that McLean had some history of substance abuse and functioned at the emotional level of an adolescent. Both psychologists diagnosed McLean with borderline personality disorder but found that he was of average intelligence. McLean’s brother testified to a history of some family dysfunction.

The jury voted nine to three in favor of a death sentence. After conducting a Spencer³ hearing, the trial court followed the jury’s recommendation, finding that the three aggravating factors outweighed several mitigating factors. Of the aggravators, the court found (1) that when McLean committed the murder, he had been previously convicted of a felony and placed on felony probation (moderate weight); (2) that McLean was previously convicted of a felony involving the use or threat of violence, based on McLean’s prior armed robbery conviction and the contemporaneous conviction for the attempted first-degree murder of Lewis (great weight); and (3) that McLean committed the murder during the commission of a robbery (great weight). The trial court found two statutory mitigating circumstances: (1) McLean’s mental or emotional disturbance at the time of the crime (little weight); and (2) McLean’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law (little weight). The court also found six categories of nonstatutory mitigating circumstances: (1) mental health issues (no weight); (2) substance abuse issues (little weight); (3) disparate treatment of codefendants (no weight); (4) family problems (little weight); (5) brain injury (little weight); and (6) miscellaneous factors, such as poor grades in high school, good behavior in court, and lack of positive role models in his youth (little weight).

II. ISSUES RAISED ON APPEAL

McLean claims that (A) the trial court erred by admitting photographic and live lineup identifications when law enforcement did not offer assistance of counsel; (B) the trial court erred in conducting a portion of the Nelson⁴ hearing in camera, outside McLean’s presence; (C) the trial court erred in instructing the jury on the avoid arrest aggravator; and (D) McLean’s death sentence is disproportionate.⁵ None of these claims warrant relief.

A. Motion to Suppress Lineup Identifications

McLean first claims that the trial court erred in denying his motion to suppress photographic and live lineup identifications because law enforcement did not offer assistance of counsel. We disagree.

Here, the trial court’s ruling on the motion to suppress was proper. Because both the photographic and live lineups occurred before any charges were filed against McLean, they were not critical stages of proceedings and did not trigger a right to counsel. See Ibar v. State, 938 So. 2d 451, 469-70 (Fla. 2006) (“The pre-arrest investigatory lineup . . . was not a `critical stage’ of the proceedings because when the lineup was conducted, it was not apparent that the government had decided to prosecute [the defendant] . . . .”). Because McLean was not entitled to the presence of counsel during these investigatory lineups, his rights were not violated when law enforcement failed to offer assistance of counsel. Accordingly, we affirm the trial court’s denial of McLean’s motion to suppress the results of the lineup identifications.

B. The Nelson Hearing

Next, McLean argues that that the trial court erred in conducting a portion of the Nelson hearing in camera, outside McLean’s presence. We disagree.

Before trial, McLean sent a letter to the trial court requesting that he be assigned new counsel, and the trial court held a Nelson hearing to consider McLean’s several grievances. During the Nelson hearing, McLean told the court that he had provided his counsel with the names of alibi witnesses but that “they never wanted to go speak to the people.” The trial court allowed defense counsel to respond in camera, outside the earshot of McLean or the State, to that particular issue so that it would not be on record with the State. Defense counsel adequately explained, to the trial court’s satisfaction, her investigator’s discussions with the alibi witnesses identified by McLean and her decision not to pursue their use as witnesses.

No error occurred when McLean could not hear a portion of the Nelson hearing proceedings because McLean was not entitled to a Nelson hearing on the issue being discussed. This Court has held that a defendant is not entitled to a Nelson hearing “where a defendant presents general complaints about defense counsel’s trial strategy and no formal allegations of incompetence have been made.” Morrison v. State, 818 So. 2d 432, 440 (Fla. 2002); see also Sexton v. State, 775 So. 2d 923, 931 (Fla. 2000) (holding that the defendant was not entitled to a Nelson hearing when he “was merely noting his disagreement with his attorney’s trial strategy . . . and was not asserting a sufficient basis to support a contention that his attorney was incompetent”). Here, McLean’s argument regarding the alibi issue raised disagreement with trial strategy and did not assert a sufficient basis to support a contention that his attorneys were incompetent. See Morrison, 818 So. 2d at 442. Furthermore, as in Morrison, 818 So. 2d at 442, the trial court made “sufficient inquiry to determine whether there was reasonable cause to believe that counsel was not rendering effective assistance.” Therefore, we find McLean’s Nelson argument to be without merit.

C. Jury Instruction on the Avoid Arrest Aggravator

McLean also claims that the trial court erred in instructing the jury on the avoid arrest aggravator, which the trial court ultimately rejected. We disagree.

Florida law provides that “evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating or mitigating circumstances.” § 921.141(1), Fla. Stat. (2004). Then, the trial court must instruct the jury on any aggravators for which competent substantial evidence is received. Aguirre-Jarquin v. State, 9 So. 3d 593, 607 (Fla. 2009) petition for cert. filed, No. 09-7370 (U. S. Aug. 10, 2009).

The avoid arrest aggravating circumstance applies when “[t]he capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.” § 921.141(5)(e), Fla. Stat. (2004). When the victim is not a law enforcement officer, the evidence must demonstrate beyond a reasonable doubt that “the sole or dominant motive for killing was to eliminate a witness.” Bevel v. State, 983 So. 2d 505, 518 (Fla. 2008) (quoting Buzia v. State, 926 So. 2d 1203, 1209 (Fla. 2006)). This Court has held that the evidence presented on the avoid arrest aggravator may be in the form of “circumstantial evidence from which the motive for the murders may be inferred.” Hoskins v. State, 965 So. 2d 1, 19 (Fla. 2007) (quoting Farina v. State, 801 So. 2d 44, 54 (Fla. 2001)).

Here, the State presented competent substantial evidence to support the avoid arrest aggravator. The victims were compliant and helpless when McLean shot them, and McLean had obtained the marijuana and was exiting the apartment when he fired the fatal shots. Such circumstances suggest that the shooting was intended to eliminate the witnesses. See Thompson v. State, 648 So. 2d 692, 695 (Fla. 1994) (“Once Thompson had obtained the $1,500 check from Swack and Walker, there was little reason to kill them other than to eliminate the sole witnesses to his actions.”). Also, McLean had instructed Jaggon to shoot the woman next door if he saw her, further indicating McLean’s intent to eliminate any potential witnesses. During the crime, McLean did not wear a mask or otherwise disguise his appearance, making a subsequent identification by one of the victims likely if McLean did not eliminate the witnesses.

With these facts presented, the jury instruction on this aggravator was not error. That the trial court later declined to find the aggravator does not render the jury instruction improper. See, e.g., Davis v. State, 928 So. 2d 1089, 1132 (Fla. 2005) (rejecting the defendant’s claim that “the trial court erred in allowing the jury to consider the avoiding or preventing a lawful arrest aggravator when the trial court found that this aggravating circumstance did not exist”); Pace v. State, 854 So. 2d 167, 181 (Fla. 2003) (“The fact that the state did not prove [the avoid arrest] aggravator to the trial court’s satisfaction does not require a conclusion that there was insufficient evidence . . . to allow the jury to consider the factor.”) (quoting Bowden v. State, 588 So. 2d 225, 231 (Fla. 1991)). Accordingly, the trial court did not err in instructing the jury on the avoid arrest aggravator.

D. Proportionality

McLean further claims that his death sentence is disproportionate. This claim is without merit.

Proportionality review “is not a comparison between the number of aggravating and mitigating circumstances.” Crook v. State, 908 So. 2d 350, 356 (Fla. 2005) (quoting Urbin v. State, 714 So. 2d 411, 416 (Fla. 1998)). Instead, the Court considers the totality of the circumstances to determine if death is warranted in comparison to other cases where the death sentence has been upheld. Davis v. State, 859 So. 2d 465, 480 (Fla. 2003).

The circumstances of this case reveal murder by shooting, committed during the course of a robbery. Evidence was presented indicating that McLean was of average intelligence and suffered from borderline personality disorder. McLean was a felon on probation and was also subject to the prior violent felony aggravator based on his previous conviction for armed robbery and for his contemporaneous conviction for attempted first-degree murder. Of these three aggravators, the trial court gave “moderate weight” to McLean’s status as a felon on probation, “great weight” to the contemporaneous robbery, and “great weight” to McLean’s prior violent felony convictions. The trial court gave “little weight” to the statutory mental mitigators of McLean’s mental or emotional disturbance at the time of the crime and his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, “little weight” to the nonstatutory mitigators of substance abuse issues, family problems, brain injury, and miscellaneous factors, and “no weight” to the nonstatutory mitigators of mental health issues and the disparate treatment of codefendants.

Considering those circumstances, the aggravating and mitigating factors weighed by the trial court, and other cases with similar facts, we conclude that the death sentence imposed on McLean is proportionate. See, e.g., Hayward v. State, 34 Fla. L. Weekly S486 (Fla. Aug. 27, 2009) (death sentence proportionate with prior violent felony aggravator and merged committed during a robbery/committed for pecuniary gain aggravator and nonstatutory mitigators including academic problems, an absent father, some capacity for rehabilitation, and financial stress at the time of the crime); LaMarca v. State, 785 So. 2d 1209 (Fla. 2001) (death sentence proportionate with prior violent felony aggravator and nonstatutory mitigators of good behavior at trial, substance abuse issues, and mental disorders); Shellito v. State, 701 So. 2d 837 (Fla. 1997) (death sentence proportionate with prior violent felony aggravator and merged pecuniary gain/committed during a robbery aggravator and mitigators involving the defendant’s age, background, and character); Pope v. State, 679 So. 2d 710 (Fla. 1996) (death sentence proportionate with prior violent felony aggravator and pecuniary gain aggravator, statutory mitigators of mental or emotional disturbance at the time of the crime and impaired capacity to appreciate the criminality of conduct or to conform conduct to the requirements of the law, and nonstatutory mitigators including that defendant was intoxicated, was under the influence of mental or emotional disturbance, and acted after a disagreement with his girlfriend); Heath v. State, 648 So. 2d 660 (Fla. 1994) (death sentence proportionate with prior violent felony aggravator and commission during a robbery aggravator and mitigators of extreme mental or emotional disturbance caused by substance abuse, good character demonstrated in prison, and disparate treatment of codefendant).

III. SUFFICIENCY

McLean does not challenge the sufficiency of the evidence, but in death sentence appeals, this Court independently reviews the record to confirm that the jury’s verdict is supported by competent, substantial evidence. See Delgado v. State, 948 So. 2d 681, 689 (Fla. 2006).

The following evidence presented at trial is consistent with McLean’s guilt: (1) McLean’s two coperpetrators testified against him and described his participation in the crimes; (2) one of the victims identified McLean as the shooter in both photographic and live lineups; (3) several items containing McLean’s DNA were found discarded near the getaway car; (4) a .380 handgun of the type McLean was seen wielding during the crime was found discarded near the getaway car and was consistent with the bullets that killed Jahvon Thompson; (5) images of a similar-looking handgun were found on McLean’s cell phone; (6) cell phone records revealed calls between McLean and his coperpetrator Lewin on the day of the crimes; and (7) Lewin testified that McLean stated his motive for the murder was that “he wanted to feel what it feels like to shoot and kill somebody.”

Based on all of the above, we find the evidence sufficient to support McLean’s first-degree felony murder conviction.

IV. CONCLUSION

For the foregoing reasons, we affirm McLean’s conviction and his sentence of death.

It is so ordered.

PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.

QUINCE, C.J., concurs in result only.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

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Notes:

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Courtesy of David Edelstein

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MARK BARROW, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D07-3420

District Court of Appeal of Florida, Fourth District.

February 10, 2010.

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Jorge Labarga, Judge, L.T. Case No. 05-15322CFA02R.

Frederick R. Susaneck of Levine & Susaneck, P.A., West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

GROSS, C.J.

We reverse for a new trial because the trial judge abused his discretion by responding to the jury’s question about the availability of transcripts in the negative, without advising the jury about the potential for read backs of witnesses’ testimony, ignoring the request of both the state and defense. We also note that the trial judge’s apparent adoption of an ad hoc rule prohibiting read backs amounted to a failure to exercise the discretion granted to trial judges in this area.

Mark Barrow was convicted of the first degree murder of Rae Meichelle Tener, whose body was never found. No witness observed the murder, nor did any witness observe any violence between Barrow and Tener on the night she disappeared.

By way of background, appellant lived in a trailer park with his girlfriend, Peggy LaSalle, and her two daughters. The victim and her 13 year old son, Zack Tener, lived in the same trailer park. Importantly, the victim had a history of disappearing for days at a time, leaving her young son alone.

On the night the victim was last seen, appellant hosted a drinking party in his trailer. Some of the partygoers testified at trial, not always consistently, their memories perhaps clouded by alcohol and drugs. From their testimony, this version of the party emerged.

Shannon Rasmussen and her boyfriend Mark Jones were part of a group that included the victim’s son, Zack. The group was hanging out

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at appellant’s trailer playing a drinking game and “doing weed.” At some point, Zack passed out on a couch. The victim came to appellant’s trailer around 11:00 p.m. and she and appellant took Zack home to the victim’s trailer. After a while, appellant and the victim returned to appellant’s trailer. Both appeared to be “buzzed.” Jones and Rasmussen left once the victim asked them to leave appellant’s trailer.

When Zack awoke in the morning, his mother was not home. Zack walked to appellant’s trailer and saw two packs of his mother’s “cherry cigars” and a lighter on the ground. He looked in appellant’s trailer and saw him asleep on the couch. He picked up his mother’s cigars and lighter and went home. On cross-examination, Zack said the cigars were not “messed up” and he had not seen any blood where he found them.

A few days after the victim was last seen, her mother went to the victim’s trailer and found all of her daughter’s belongings. The victim’s car was in her driveway. Her driver’s license and money were in pants on the floor of the bedroom.

When the state called Peggy LaSalle to the stand, appellant objected on the ground that the state had not established a corpus delicti. The trial court overruled the objection.

Peggy testified that she had known the victim since eighth grade. Peggy was not at the party in her trailer on the day the victim was last seen because appellant had driven her to a drug rehabilitation facility to cope with a Xanax overdose. The next day, Peggy called someone to wake appellant so he could pick her up. When he arrived, appellant was not acting “normal.” He seemed angry, and there was a stench in the van that had not been there the day before. Peggy asked appellant what was wrong. He started crying and punching the steering wheel. At home, he explained that the house was trashed because he had hosted a party.

Several days later, after detectives interviewed appellant about the victim, Peggy asked him where she might be. Appellant did not answer. Peggy found the victim’s car keys in the van and gave them to appellant.

Some time later, in a room she was cleaning, Peggy smelled the stench she had first smelled in the van, only stronger. The odor emanated from a brown paper bag containing a pair of jeans covered in blood. Peggy confronted appellant with this discovery.

Ultimately, appellant told Peggy he had killed the victim. He said

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that, after the victim made sexual advances to him, he physically threw her out of the trailer. She hit her head and was bleeding. When the victim threatened to call the police, appellant “snapped,” because he did not want to go to jail again. He picked her up and hit her head on a rock. Then he put her body in a black trash bag, put the bag on the passenger seat in his van, and drove her to water. Once there, he hit her with a sledge hammer, looped a “plastic thing” around her neck, put his foot on the victim’s shoulder, and broke her neck. He then picked up her body and threw it into the water. According to Peggy, appellant stripped on the way home and threw his clothes out the window. Appellant told Peggy that the passenger seat was covered with blood before he came to pick her up, so he wiped it up with a big towel.

Peggy related appellant’s story to an ex-boyfriend, who told the police. The police came to interview Peggy the next day. In this same time period, the trailer was severely damaged by hurricanes.

On cross-examination, Peggy agreed that she would have been upset if she had found out that appellant was with the victim. She had previously filed a domestic violence complaint against appellant, in which she claimed that he had thrown her out of the trailer, causing her to hit her head on a rock. Peggy’s testimony was not consistent with the statements she gave the police. For example, she could not explain how appellant could have been covered with blood and yet stop at a gas station and pay for gas in cash, which would require a trip inside.

Various state witnesses testified concerning forensic evidence removed from appellant’s van. In the back of the van, a technician found a cell phone box containing a phone that had blood in the screw areas. Six areas of the van seats and doors initially tested positive for blood. No blood was detected in the foam cushions of the seats. DNA was detected in three locations—including blood from the cell phone and from the left side of the passenger seat. All of the DNA came from the same donor. The police took samples from appellant, Zack, and the victim’s mother; appellant was excluded as being the donor. The test could not exclude Zack as the biological child of the DNA donor, or the mother as the biological parent. The state offered expert testimony that the blood in the van came from the victim. No fingerprints were recovered.

Appellant gave two recorded statements to the police, which were both played at trial. In the first statement, he told the detectives that he did not like the victim, because she gave Peggy Xanax. He also stated that he had never had a sexual relationship with the victim because she was “a whore.” Appellant said that on the night the victim disappeared, she

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came to his trailer looking for Peggy and was there for two minutes. He had been to the victim’s trailer one time about a week and a half before. He asserted that Zack was lying if he said appellant had gone to the victim’s trailer on the night she was last seen.

After the detective talked with Peggy a second time, he conducted a second interview with appellant, which was played for the jury over his corpus delicti objection. On the tape, appellant described the party at his trailer and said it ended about 1:30 a.m.; he then had another beer and went to bed. The victim was not at the party, although she came to the trailer twice, once to get Zack and once for Peggy. After appellant told her Peggy was in rehab, she left. He was unsure about the time, however, because he was drunk. Appellant denied having a conversation with Peggy about the victim, whom he did not like because she did drugs and was a “slut.” He agreed that the victim had come on to him three times before, but said she had not tried anything that night. She left by herself. He said the victim had been in the van at some point before that night when she and Peggy had gone to the store with him.

Ten minutes into its deliberations, the jury sent out a question asking for “all the transcripts of the witnesses’ testimonies, Zack, Shannon, Peggy, Mark Jones, Mark Barrow.” The trial judge told the lawyers that he received that question in every trial. The trial judge observed that because there were no transcripts, his response would be that “there are no transcripts.” The prosecutor suggested that the trial judge tell the jury that they could request read backs. Instead, the trial judge responded, “No, I don’t do read backs.”

Then, noting that the defense attorney was giving him “that Courthouse common law look,” the trial judge discussed case law, with citations, supporting the proposition that the jury was not entitled to a read back because the issue was within the broad discretion of the trial court.¹ The trial judge ruled that he would not tell the jury about read

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backs, saying that for the jury

to ask within the first ten minutes to have the entire trial read back to them, that’s impractical, can’t be done. They took copious notes. That’s why I let them have notes. They should rely on their own recollection. So, I am not going to put in there that they can ask for read backs. I am just going to write . . . that there are no transcripts, please rely on your own recollection of the proceedings.

The defense attorney then asked the trial judge to instruct the jury that they have a right to ask the court for a read back. The trial court denied the request and sent the jury a note saying

There are no transcripts available for your review. Please rely on the evidence presented during the proceedings.

Hours later, the jury found appellant guilty of first degree murder.

A major question presented in this case is the obligation of a trial judge in a criminal case when faced with a deliberating jury’s request to see transcripts.

Florida Rule of Criminal Procedure 3.410 concerns a jury’s request for “any testimony” to be “read to them”:

After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorney

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and to counsel for the defendant.

Rule 3.410 gives a trial judge “wide latitude in the area of the reading of testimony to the jury.” Avila v. State, 781 So. 2d 413, 415 (Fla. 4th DCA 2001). The Florida Supreme Court has recognized that “courts have found no abuse of discretion even where the trial judge has, without much consideration, entirely rejected the jury’s request for a read back.” Francis v. State, 808 So. 2d 110, 130 (Fla. 2001) (citing McKee v. State, 712 So. 2d 837, 838 (Fla. 2d DCA 1998)).

However, several Florida cases have found an abuse of judicial discretion when a trial court responds to a jury question about trial testimony or transcripts without letting the jurors know that they may ask for testimony to be read back to them.

The leading case is Roper v. State, 608 So. 2d 533 (Fla. 5th DCA 1992). This case involved sexual abuse of a minor. The deliberating jury “asked to `see’ the victim’s cross-examination testimony.” Id. at 533. After conferring with the attorneys, the trial judge told the jury that no transcript was available to them, so there was no way that the jury could “see” the victim’s cross examination. Id. at 533-34. The judge told the jury to “rely upon your collective recollections and remembrances as to what each of the witnesses testified to in order to render your verdict.” Id. at 534.

On appeal, the state argued “that if the jury does not ask that the testimony be read back, but only requests to see a transcript, the court does not abuse its discretion by simply instructing the jury to rely upon their recollections.” Id. at 535. The fifth district rejected this argument, writing that the judge’s response to the jury’s question “may well have led the jury to conclude that their only recourse was to rely upon their `collective recollections and remembrances’ as to the cross-examination of the minor.” Id. In analysis equally applicable to this case, the fifth district concluded in Roper that

the trial judge here narrowly focused upon the word “see” (as distinguished from “hear”) in the jury’s request and deftly side-stepped the problem. As we see it, he employed a semantic shell game effectively negating an option allowed the jury under Rule 3.410. At the very least, the trial judge should have apprised the jury that a method was available to have the cross-examination, or specific portions of it, read to them. Then, if the jury requested it, the trial court could have weighed that request in light of any applicable

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considerations.

Id. at 535. This court cited Roper with approval in Volk v. State, 754 So. 2d 82 (Fla. 4th DCA 2000). In a case similar to Roper, we found an abuse of discretion where a trial judge responded to a jury question about witness testimony without letting the jury know that a read back of testimony was possible. The jury in Avila v. State, 781 So. 2d 413, 414 (Fla. 4th DCA 2001), stated “that it needed to review the timing of specific events set forth by the testimonies of four named alibi witnesses.” The trial judge told the jury that although the court reporter took “down the trial in shorthand notes,” there were “no printed transcripts” to “submit back to you.” Id. at 415.

We held that the trial judge abused his discretion by failing to tell the jury about the potential availability of a read back:

While the trial court has the discretion to deny a jury’s request to read back testimony, it may not mislead the jury into thinking that a readback is prohibited. In this case, the jury clearly sought a readback of specific testimony. The trial court, however, without mentioning that a method of readback was available, informed the jury that there were no transcripts and that the jury members should rely upon their collective recollection. Because such a statement may have confused the jury as to whether a readback of testimony was permissible, we conclude that the trial court abused its discretion.

Id. at 415-16 (citations omitted); see also Rigdon v. State, 621 So. 2d 475, 479 (Fla. 4th DCA 1993) (finding reversible error in instruction that any request for a read back would be refused, “because the trial judge’s comments may reasonably have conveyed to the jurors that to ask for … rereading of testimony would be futile or was prohibited”).

This case falls within the ambit of Roper and Avila. The jury requested to see “transcripts.” Both the prosecutor and the defense attorney asked that the trial judge tell the jury that it could request read backs. The trial judge refused and told the jury that no transcripts were available for their review. As in Roper, the judge’s instruction “effectively negat[ed] an option allowed the jury under Rule 3.410.” 608 So. 2d at 535. Especially when asked to do so by both the state and the defense, the court should have apprised the jury that a method of read back was available. Id.; Avila, 781 So. 2d at 415.

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We acknowledge that in a recent, similar case, the third district has reached a different result. In Hazuri v. State, 34 Fla. L. Weekly D2590, *1 (Fla. 3d DCA Dec. 16, 2009), a deliberating jury asked if they could “get transcripts from the trial.” Defense counsel asked the trial judge to tell the jury that they could have portions of the trial read back to them. Id. The trial judge sent the jury a note telling them that there were no transcripts available and that they would have to rely on their collective recollection of the evidence. Id. The Hazuri majority opinion found no error in the judge’s note, which was “legally accurate;” the court held that “[u]pon giving such an answer, the trial court was under no obligation—as defense counsel suggested—to inform the jurors that a `readback’ of trial testimony may be available upon request.” Id. at *2.²

We certify conflict with Hazuri. We believe that Roper and Avila are more in harmony with Florida’s view of a jury’s role in a criminal trial. Florida law encourages a jury to make a considered, careful evaluation of detailed evidence. As the Supreme Court has written, the “jury has a perfect right to return to the court room at any time and ask questions that are calculated to shed light on the controversy or that will in any way assist it or the court in developing the truth of the controversy.” Sutton v. State, 51 So. 2d 725, 726 (Fla. 1951). Part of a trial judge’s role is to forthrightly make the jury aware of those tools available under the rules of criminal procedure that will assist the jury in arriving at its decision. The judge’s role is to facilitate careful deliberation. Deference should be accorded to a jury’s request to more closely examine the trial

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testimony. See LaMonte v. State, 145 So. 2d 889, 892 (Fla. 2d DCA 1962).

As a second area of concern, we note that the lawyers’ request that the jury be advised of the availability of read backs may have been fruitless, in light of the judge’s stated policy: “I don’t do read backs.” It is an abuse of discretion for a trial judge to refuse to exercise discretion, to rely on an inflexible rule for a decision that the law places in the judge’s discretion. As Justice Thompson wrote in his concurrence to Barber v. State, 5 Fla. 199, 206 (Fla. 1853), the trial court’s “discretion is not an arbitrary exercise of the will and pleasure of the Judge, but it is a sound legal discretion, to be exercised according to the exigency of the case, upon a consideration of the attending circumstances.” See Massey v. State, 50 Fla. 109, 112 (Fla. 1905) (refusal to exercise discretion, “without any good reason for so doing,” deprives party of a substantial right); Boykin v. Garrison, 658 So. 2d 1090, 1090 (Fla. 4th DCA 1995) (where the court wrote that “[t]he law is well settled that a trial court must exercise its discretion where discretion has been provided; a refusal to so exercise is error.”); see also Albert v. Miami Transit Co., 17 So. 2d 89, 90 (Fla. 1944) (discussing the limits of judicial discretion);³ Fla. Fire & Cas. Ins. Co. v. Hart, 73 Fla. 970, 975-77 (Fla. 1917) (trial court deprives a party of a substantial right when it refuses to exercise its discretion on motion for new trial); Steinmann v. State, 839 So. 2d 832 (Fla. 4th DCA 2003) (where court wrote that “[i]t is error for the trial court to refuse or fail to exercise its discretion.” (citations omitted)).

We do not find the error in the trial court’s response to the jury’s question to be harmless. The decision in this case turned on the details. The jury asked for transcripts of the testimony of key witnesses who had

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first-hand knowledge of the events the night the victim disappeared, as well as the testimony of Peggy, who testified about appellant’s confession, and the statements appellant gave to the police. The witnesses from the party in appellant’s trailer were drunk or high on the night in question and their testimony varied on key points.

Peggy herself was not a strong witness. Her testimony conflicted with her earlier version of Barrow’s confession, and she told the jury that she did not care, because the details did not matter. She had multiple reasons to be angry with appellant. She had recanted an accusation that appellant had attacked her in exactly the same manner she said he confessed to attacking the victim—by throwing her out of the trailer onto a rock. The fact that Zack did not see any blood when he found the cherry cigars casts doubt on Peggy’s testimony that appellant had killed the victim by smashing her head on a rock in the same general area where the cherry cigars were found.

To conclude that an error is harmless, we must find “beyond a reasonable doubt” that the error “did not affect the jury’s verdict.” State v. Powell, 998 So. 2d 531, 542 (Fla. 2008) (citation omitted). Given the details, we cannot say that the inability of the jury to more closely examine the conflicting evidence did not affect its verdict.

On a remaining issue, we agree with the trial court that the state established the corpus delicti in this case so that Peggy’s testimony of appellant’s confession was properly admitted.

“To admit a defendant’s confession, the state must prove the corpus delicti either by direct or circumstantial evidence. . . . [P]roof beyond a reasonable doubt is not mandatory.” Meyers v. State, 704 So. 2d 1368, 1369-70 (Fla. 1997) (citations omitted). The phrase “corpus delicti”

refers to proof independent of a confession that the crime charged was in fact committed. Bassett v. State, 449 So. 2d 803, 807 (Fla. 1984). In order to prove corpus delicti in a homicide case, the state must establish: (1) the fact of death; (2) the criminal agency of another person as the cause thereof; and (3) the identity of the deceased person. Id. Regarding the second element—the criminal agency of another—the proof need not show that the defendant committed the crime.

Id. at 1369 (footnote omitted).

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Here, the state established the corpus delicti based on State v. Lindsey, 738 So. 2d 974, 977 (Fla. 5th DCA 1999). That case held that the corpus delicti of murder was established by evidence that (1) the victims’ continued absences without contacting family or friends were out of character for them and (2) the victims’ belongings left at their residences indicated that their absence was neither voluntary nor planned. Id. Similarly in Crain v. State, 894 So. 2d 59, 72 (Fla. 2004), the corpus delicti was established by evidence that a young child was last seen alive in the presence of Crain, that her blood was found on his clothing, that scratch marks were found on him, and that he had bleached his bathroom in the middle of the night and exhibited other unusual behavior the next morning.

In this case, the victim had not taken any of her belongings with her, including her identification and money. Three years had elapsed from the time the victim was last seen to the time of trial. She was last seen with appellant, and her blood was found in his van. Barrow’s story changed, and it was contradicted by the testimony of witnesses. Such evidence was sufficient to establish a corpus delicti. Even though this is a weaker case than Lindsey and Crain, in that the victim had a history of disappearing for periods of time, corpus delicti need not be proved beyond a reasonable doubt. See Davis v. State, 582 So. 2d 695, 700 (Fla. 1st DCA 1991) (“[T]he foundational evidence necessary to prove corpus delicti need not eliminate possible noncriminal explanations of a victim’s disappearance.”).

We find no fundamental error in the state’s closing argument.

Reversed and remanded for a new trial.

TAYLOR and HAZOURI, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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JEFFERY LENARD GREEN a/k/a JEFFREY L. GREEN, JR., Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-4326.

District Court of Appeal of Florida, Second District.

Opinion filed February 10, 2010.

Appeal from the Circuit Court for Polk County, Mark F. Carpanini, Judge.

Matthew P. Farmer of Farmer & Fitzgerald, Tampa, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Jeffrey Green appeals his convictions and sentences for one count of first-degree felony murder, one count of armed burglary of a dwelling, and one count of armed robbery. We reverse and remand for a new trial because the trial court erred in

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denying Green’s motions for mistrial predicated on the prosecutor’s improper comments concerning Green’s exercise of his right to remain silent.

Background Facts

Robert Cameron was shot and killed by a masked gunman who entered Cameron’s second-floor condominium through a balcony door. Through investigation, the police developed three men as possible suspects, Kelly Washington, Antonio Neal, and Desmond Davis, each of whom had been to Cameron’s condominium to socialize in the weeks before the shooting. During post-Miranda¹ statements to police, Washington, Neal, and Davis implicated Henry Jones and Jeffrey Green in the shooting.

According to the testimony presented at trial, Washington, Neal, and Davis knew that Cameron kept large quantities of marijuana at his condominium, and they decided to rob him of the marijuana and the cash associated with sales of that marijuana. The three then contacted Jones about obtaining a firearm. At Jones’s suggestion, the four men went to Green’s house and obtained two handguns. Green joined the group, and the five men drove to a spot near Cameron’s condominium. Washington waited in the car while Neal, Davis, Jones, and Green got out and jumped the wall surrounding the condominium complex. According to Davis, he and Neal boosted Jones and Green onto the second-floor balcony of Cameron’s condominium. According to Jones, Green shot Cameron when he initially refused to give them the marijuana and the cash. After being shot, Cameron got the marijuana and cash from his closet and gave it to Green. Both Jones and Green then fled the apartment. They rejoined Neal and Davis, ran back to the car where Washington was waiting, and

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returned to Green’s home. According to Davis, at Green’s house the five men divided the marijuana and the cash between them. They also allegedly each signed a piece of paper saying that none of them would tell anyone what had happened, although no one other than Davis testified to this and no such paper was ever found or introduced at trial.

According to Davis and Jones, while the five men were dividing the marijuana and cash Green admitted that he had fought with someone in the condominium and the gun went off and that person was shot. However, Neal testified that he had no idea that any shooting had occurred until the next day when Jones told him that Green had shot someone. Neal also testified that Green told him that Jones was the one who fired the shot.

Post-arrest, Davis confessed his involvement in the offenses to the police. In exchange for his cooperation, he was offered a plea agreement that included a ten-year cap on prison time. During Davis’s trial testimony, he was impeached with various lies that he told in his sworn statements to the police. His testimony was also impeached by the fact that the police had told him the substance of his codefendants’ statements before the police recorded his statement. Thus, the evidence showed that when Davis’s statement was recorded, he knew what the other alleged participants had told the police about the events.

Jones turned himself in to police after he learned that there was a warrant out for his arrest. In exchange for his cooperation and confession, he was offered a plea agreement that included a sentence of fifteen years in prison followed by three years’ probation. During his trial testimony, Jones was impeached with various lies that he told in his sworn statements to the police. Like Davis, Jones was also impeached by

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evidence that the police had told him the substance of his codefendants’ statements before the police recorded his statement.

Neal initially told the police that he was not with the others on the night in question. However, he later confessed to some involvement after the police told him that both Jones and Green had pointed to him as the triggerman. In exchange for his cooperation and confession, Neal was offered a plea agreement with a sentence of ten years in prison followed by three years’ probation. Like Davis and Jones, Neal’s confession was impeached by the fact that the police told him the substance of his codefendants’ statements before they recorded his statement.

After Green turned himself in to the police, he asserted his right to remain silent and chose not to give a statement to the police. Despite Green’s silence, the police told at least one codefendant—Neal—that Green had given a statement that detailed everyone’s involvement in the robbery and shooting.

Several days after the shooting, the police obtained a search warrant for Green’s residence based on the statements of his codefendants. At Green’s home, the police recovered three .380 firearms similar to the one allegedly used to shoot Cameron. However, forensic testing revealed that none of the three firearms fired the bullet that killed Cameron, and no other shots were fired during the burglary. Moreover, despite statements from Neal and Davis that Green’s Dodge Charger was the vehicle the men used to get to and from Cameron’s condominium on the night of the shooting, the police never obtained a search warrant for the Charger and they never conducted any forensic testing on the Charger. The State found no fingerprints at Cameron’s condominium connecting Green to the robbery, and the two other men present in

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Cameron’s condominium at the time of the robbery could not identify either of the intruders. Thus, the State had no physical evidence or eyewitness identification tying Green to the crimes. Instead, the only evidence tying him to any of the events was the testimony of Neal, Davis, and Jones. Washington did not testify at trial.

Green’s theory of defense was that he was not involved in these crimes at all and that his codefendants had accused him of the shooting to cover up their own involvement. He pointed out that each codefendant had initially lied to the police about their respective involvement and had changed their stories only after being told what the other codefendants had allegedly told police. He also argued that the codefendants each had a motive to minimize their own involvement due to their favorable plea agreements. Despite these arguments, the jury convicted Green as charged, and the court sentenced him to three concurrent terms of life in prison.

In this appeal, Green raises three issues for review. We reject without discussion Green’s argument that the trial court abused its discretion when it allowed Neal and Jones to testify even though they had refused to give depositions prior to trial. However, we agree with Green that he was entitled to a mistrial based on the prosecutor’s improper comments and arguments concerning the exercise of his right to remain silent. In addition, because we are remanding for a new trial, we also explain why the trial court abused its discretion in admitting evidence of the firearms found at Green’s residence that were unrelated to the charged crimes.

Post-Arrest Silence

Green first argues that he was entitled to a mistrial because the prosecutor improperly elicited evidence concerning Green’s decision not to make a

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statement to police and then improperly relied on this evidence during closing arguments. During the redirect examination of Detective Kent, the prosecutor asked whether Green had given any post-arrest statements to law enforcement. Kent replied that Green had “refused.” Despite this obvious comment on Green’s exercise of his right to remain silent, the trial court denied Green’s motion for mistrial. Later, during closing arguments, the prosecutor listed each of Green’s codefendants, noted that each had confessed post-arrest, and then argued, “When Jeffrey Green was given an opportunity to talk to the police, he refused.” Green again moved for a mistrial, and the trial court again denied the motion. These rulings constituted an abuse of discretion.

The due process clause of the Florida Constitution, article I, section 9, guards against prosecutorial comments on a defendant’s post-arrest silence. See State v. Hoggins, 718 So. 2d 761, 770 (Fla. 1998). The standard for determining what constitutes a comment on post-arrest silence is fairly liberal. “If the comment is fairly susceptible of being construed by the jury as a comment on the defendant’s exercise of his or her right to remain silent, it violates the defendant’s right to silence.” Id. at 769; see also State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). Thus, “[e]vidence or argument that is fairly susceptible of being deemed a comment on the right of silence should be excluded.” Giorgetti v. State, 821 So. 2d 417, 422 (Fla. 4th DCA 2002); see also State v. Smith, 573 So. 2d 306, 317 (Fla. 1990) (“[C]ourts must prohibit all evidence or argument that is fairly susceptible of being interpreted by the jury as a comment on the right of silence.”); Dixon v. State, 627 So. 2d 19, 20 (Fla. 2d DCA 1993) (holding that comments that are “fairly susceptible” to being interpreted as comments on the defendant’s silence are generally reversible error).

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Here, Detective Kent’s response that Green “refused” to give a statement was more than “fairly susceptible” of being interpreted as a comment on Green’s right to remain silent. Instead, it directly raised and negatively commented on Green’s exercise of that constitutional right. As such, the response was an improper comment that should have been excluded from both evidence and argument.

In defense of the trial court’s ruling otherwise, the State argues that Green “opened the door” to this comment and argument when he elicited testimony from Neal that the police told Neal before Neal confessed that Green had given a statement identifying Neal as the triggerman. Neal testified that he later learned that Green had not made a statement to the police. The State argued that since Green himself had elicited the testimony that he had not given a statement to the officers, he had “opened the door” to the State using this information against Green.

“[T]he concept of `opening the door’ allows the admission of otherwise inadmissible testimony to `qualify, explain, or limit’ testimony or evidence previously admitted.” Ramirez v. State, 739 So. 2d 568, 579 (Fla. 1999) (quoting Tompkins v. State, 502 So. 2d 415, 419 (Fla. 1986)). Applying this concept in the context of post-arrest silence, if a defendant raises the issue of his own post-arrest silence, the State may respond. See United States v. Robinson, 485 U.S. 25, 32 (1988); Ricardo v. State, 756 So. 2d 215, 216 (Fla. 4th DCA 2000); Wood v. State, 552 So. 2d 235, 236 (Fla. 4th DCA 1989). However, the extent and content of the State’s response is limited to a fair comment on the evidence of silence raised by the defendant. See Ricardo, 756 So. 2d at 216; Wood, 552 So. 2d at 236. Any comments that exceed the extent and content of the evidence elicited by the defendant remain objectionable.

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Here, the testimony presented by Green did not “open the door” to the comments elicited by the State. As to the response elicited from Detective Kent, nothing about her testimony that Green “refused” to give a statement either qualified, explained, or limited Neal’s prior testimony that the police told him that Green had made a statement implicating him when, in fact, Green had made no such statement. In addition, Green’s questions to both Neal and Detective Kent were narrowly tailored to elicit only testimony that would establish that the officers “set up” the codefendants against each other. Green then used this evidence to establish a possible motive for Neal to falsely accuse Green of being the triggerman. Given these narrowly tailored questions, the subsequent testimony from Detective Kent that Green “refused” to give a statement was not a fair comment on the evidence elicited by Green concerning his own post-arrest silence, and it should have been excluded.

Moreover, the State’s argument in closing that Green was the only one of the codefendants to not make a statement to the police was an egregiously improper comment on Green’s exercise of his right to remain silent. “Where the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant’s silence, . . . the privilege against compulsory self-incrimination is violated.” Robinson, 485 U.S. at 32. Here, nothing about the limited evidence elicited during Green’s cross-examination of Neal opened the door to the expansive argument made by the State. The State’s argument was a blatant appeal to the jury to convict Green because he was the only one of the codefendants who did not confess. This argument went far beyond the extent and content of the testimony elicited by Green, and Green’s motion for mistrial based on this improper argument should have been granted.

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We also reject the State’s argument that any error arising from these comments was harmless. An error is harmless only when “the state, as the beneficiary of the error, [can] prove beyond a reasonable doubt that the error complained of did not contribute to the verdict.” DiGuilio, 491 So. 2d at 1138. As a general proposition, “[w]hen the evidence against the defendant is not clearly conclusive, comment on postarrest silence is not harmless.” Hoggins, 718 So. 2d at 772; see also DiGuilio, 491 So. 2d at 1138. Here, the State had no physical evidence placing Green at the scene of the crime, and none of the surviving robbery victims identified Green as a participant in the events. The only evidence linking Green to the crimes was the testimony of his codefendants, each of whom had made a sweetheart deal with the State in exchange for their testimony and each of whom had a strong interest in fingering someone else as the shooter. Because the evidence of Green’s guilt was far from conclusive, the error in permitting these comments was not harmless. Accordingly, we reverse and remand for a new trial.

Firearms Evidence

Because we are remanding for a new trial, we also address Green’s argument that the trial court erred by admitting evidence of three firearms that were found in Green’s home two days after the shooting, none of which were tied to the charged offenses in any way. We agree with Green that the admission of this evidence was improper.

The three firearms at issue were found in Green’s home when a search warrant was executed two days after the shooting. Two of the firearms were found in Green’s roommate’s bedroom. The other firearm was found in Green’s bedroom. All

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three were .380 semiautomatic handguns, and Cameron was shot with a .380 firearm. However, the State’s forensic testing determined that none of the firearms seized from Green’s home fired the fatal shot. Thus, the State was unable to connect any of the three firearms to the charged offenses.

Despite this inability to connect the firearms to the offenses, the State nevertheless offered the firearms into evidence at trial. The State argued that the firearms were relevant to corroborate the codefendants’ testimony that Green had firearms at his home and that they went to Green’s house specifically to obtain firearms to use in the burglary. Green argued that even if the evidence of these firearms had some relevance, which Green did not concede, any relevance was significantly outweighed by the danger of unfair prejudice. The trial court overruled Green’s objections and admitted the firearms into evidence.

As to the two firearms found in Green’s roommate’s bedroom, the trial court erred by admitting any evidence of these guns because they were completely irrelevant. Relevant evidence is evidence that tends to prove or disprove a material fact. See § 90.401, Fla. Stat. (2007); see also Zabner v. Howard Johnson’s Inc. of Fla., 227 So. 2d 543, 545 (Fla. 4th DCA 1969) (holding that relevant evidence has “a tendency to establish a fact in controversy or to render a proposition in issue more or less probable”). Here, not only were these two firearms not connected in any way to the charged offenses, they were also not connected to Green. The fact that Green’s roommate possessed two .380 semiautomatic firearms that were not connected to the charged offenses did not tend to prove or disprove any material fact in controversy and

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thus had absolutely no relevance whatsoever. Therefore, those firearms should not have been admitted into evidence under any theory.

As to the firearm found in Green’s bedroom, the existence of such a firearm in Green’s bedroom would tend to render the proposition that the codefendants went to his house to get a firearm more probable. Thus, the existence of that firearm was marginally relevant to Green’s participation in the charged crimes.

However, even relevant evidence should be excluded when the relevance is substantially outweighed by the danger of confusion or unfair prejudice. See § 90.403. In conducting this weighing process, the trial court should “consider the need for the evidence, the tendency of the evidence to suggest to the jury an improper basis for resolving the matter, the chain of inference necessary to establish the material fact, and the effectiveness of a limiting instruction.” Denmark v. State, 927 So. 2d 1079, 1081-82 (Fla. 2d DCA 2006) (citing Steverson v. State, 695 So. 2d 687, 689 (Fla. 1997)). Evidence that requires an extended chain of inferences to be relevant or that suggests an improper basis for the jury’s verdict should be excluded.

For example, in Blair v. State, 667 So. 2d 834, 836 (Fla. 4th DCA 1996), the defendant was charged with burglary of an occupied structure, grand theft, dealing in stolen property, and conspiracy to commit burglary based on a burglary at a residence that was being renovated. During discovery, the State obtained a briefcase that was owned by the defendant and which contained wires, screwdrivers, magnets, and telephone wire endings. Id. at 840. The State sought to admit the briefcase and its contents at trial, arguing that the items were “probative based on the inference that [the] defendant probably planned to use the electronic equipment in the burglary[.]” Id.

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However, the State could not establish any nexus between the briefcase and its contents and the actual burglary. Id.

In finding that the prejudicial effect of this evidence outweighed its probative value, the Blair court noted that “[t]here is nothing unlawful about keeping electronic equipment in a briefcase, and there was no direct connection between the electronic equipment and the crimes with which the defendant was charged. Therefore, the evidence and testimony supported an improper implication that [the] defendant was a career burglar and thus, must have committed these crimes.” Id.

Here, as in Blair, any probative value of the firearm found in Green’s bedroom was outweighed by the danger of unfair prejudice. As with the briefcase in Blair, any possible probative value of Green’s legal possession of a firearm that was unconnected to the charged crimes was outweighed by the possibility that the jurors would improperly rely on this evidence to determine that since Green owned this .380 handgun, he must have owned another one that he used to commit the charged crimes. Because such an inference is not properly drawn from the evidence, the admission of the firearm was unduly prejudicial, and any evidence concerning this firearm should be excluded on retrial.

Reversed and remanded for further proceedings.

WALLACE and LaROSE, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

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Notes:

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Courtesy of David Edelstein

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GEORGE JOHNSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D08-2956.

District Court of Appeal of Florida, Second District.

Opinion filed February 10, 2010.

Appeal from the Circuit Court for Pinellas County, Joseph A. Bulone, Judge.

James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.

George Johnson, pro se.

Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano and Joseph H. Lee, Assistant Attorneys General, Tampa, for Appellee.

SILBERMAN, Judge.

George Johnson seeks review of the judgment and sentence the trial court entered after a jury found him guilty of aggravated battery with a deadly weapon. We

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reverse because the court erred in sustaining the State’s use of a peremptory strike during voir dire in the face of a defense objection on the basis of gender.

During voir dire, the defense objected when the State struck juror 9, who was the last male on the panel and would have taken the last seat on the jury. Defense counsel noted that the jury would consist entirely of females if the court upheld the strike and demanded a gender-neutral reason for the strike. The court asked the State to provide a gender-neutral reason for the strike, but the State merely replied that it had wanted jurors 1 and 7, who were both male, but the defense had struck them. The State also explained that it “didn’t get a good feel for” juror 9. The court asked if Johnson would accept either juror 1 or 7 on the jury, but Johnson declined.

The court opined that, because both Johnson and the victim were male, it did not see any advantage to the State from seating an all-female jury. The court went over the strikes by each side and found that jurors 1 and 7 were both male and were struck by the defense. Jurors 6 and 9 were male and were struck by the State. Jurors 2 and 14 were female and were struck by the State. Jurors 3, 8, 12, and 13 were female and were struck by the defense. Based on that analysis, the court sustained the State’s peremptory strike of juror 9. The court explained, “So just by looking at the math. . . I really don’t think anyone is striking anyone because of gender.”

The court then identified the next two individuals available to serve as the final juror and the alternate, and the parties accepted them without further discussion and without using any strikes. The court asked Johnson if he was satisfied with the jury selection process and the jury, and Johnson replied that he was. The court then recessed for lunch.

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Immediately upon reconvening, the court sua sponte revisited the defense objection to the peremptory strike of juror 9, noting the State’s lack of specificity as to why it wanted to strike that juror. The court again asked the State for a gender-neutral reason for the strike. The State attempted to explain, stating, “Your Honor, last minute I just thought — there was nothing about him I didn’t like. I had a bad feeling, so I struck him.” After further discussion with the prosecutor, the court ruled that the State’s reason was gender-neutral and genuine, and it upheld the strike based upon the fact that the State had struck an equal number of male and female jurors. This was error.

Gender is a valid basis for an objection to the exercise of a peremptory strike. Welch v. State, 992 So. 2d 206, 211 (Fla. 2008). When a party objects to the use of a peremptory strike on gender grounds, the party must allege that the juror belongs to a specific gender group and request a gender-neutral reason to support the strike. If the objecting party complies with these requirements, the court must ask the striking party to explain the reason for the strike. Id. at 211-12. At this point, the burden shifts to the striking party to establish a gender-neutral explanation for the strike. Id. at 212. The court should sustain the strike if the explanation given by the striking party is gender-neutral and the court believes that it is not a pretext. The court should focus on the genuineness of the explanation, not its reasonableness. Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996).

In this case, Johnson met his burden of alleging that juror 9 belonged to a specific gender group and requesting a gender-neutral reason to support the strike. The trial court asked the State for a gender-neutral explanation, and the State responded that it “didn’t get a good feel for” the juror. The State later elaborated,

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stating that it “had a bad feeling” about the juror. Although the trial court appears to have been troubled by the State’s explanation, it sustained the strike based on the composition of the jury that had been seated.

A party’s unsupported “bad feeling” about a juror is not a sufficient explanation to rebut the assertion that the strike was motivated by gender. See Daniel v. State, 697 So. 2d 959, 961 (Fla. 2d DCA 1997); Ruger v. State, 941 So. 2d 1182, 1184 (Fla. 4th DCA 2006); Bullock v. State, 670 So. 2d 1171, 1172 (Fla. 3d DCA 1996). Furthermore, it is improper for the court to consider the overall make-up of the jurors that have been seated in determining the sufficiency of a gender-neutral reason for a peremptory strike. Welch, 992 So. 2d at 212. Indeed, “a gender neutral justification cannot be inferred from the composition of the panel.” Id. at 211. Accordingly, the trial court erred in sustaining the State’s use of the peremptory strike on juror 9 in this case.

The State argues that Johnson failed to preserve this issue for review. Based on the sequence of events here, we reject that argument. Generally, a party does not preserve an objection to the use of a peremptory strike if he affirmatively accepts the jury “immediately prior to its being sworn without reservation of his earlier-made objection.” Joiner v. State, 618 So. 2d 174, 176 (Fla. 1993). Acceptance of the jury without renewal of the objection leads to a “reasonable assumption” that the earlier objection is abandoned. Id. In that circumstance, “It is reasonable to conclude that events occurring subsequent to [counsel's] objection caused him to be satisfied with the jury about to be sworn.” Id.

Here, however, the record does not support the conclusion that Johnson abandoned his earlier objection based on subsequent events, and the court itself did not

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view Johnson as having abandoned his objection. After the court initially overruled the objection, the jury panel was completed. Following the lunch recess and before either party spoke, the court revisited Johnson’s objection and asked for further explanation only from the State. The court accepted the State’s explanation and sustained the peremptory strike, again overruling Johnson’s objection.

The purpose of the requirement that an error be preserved is to put the trial judge on notice that error may have been committed and to give the judge an opportunity to correct the error. Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005). In this case, that purpose was fulfilled. When the court reconsidered Johnson’s objection after lunch, there was no need for Johnson to renew his objection. The court itself raised the issue, heard argument by the State, and overruled Johnson’s objection. It is clear that the court understood, reconsidered, and rejected Johnson’s objection immediately prior to swearing in the jury. These circumstances lead us to conclude that the issue was preserved for review. See Gootee v. Clevinger, 778 So. 2d 1005, 1009 (Fla. 5th DCA 2000). A further objection after the court again overruled Johnson’s objection “`would have been an obviously futile gesture.’” Sparks v. Allstate Constr., Inc., 16 So. 3d 161, 164 (Fla. 3d DCA 2009) (quoting Webb v. Priest, 413 So. 2d 43, 46 (Fla. 3d DCA 1982)).

Because the State’s given reason in support of its use of a peremptory strike of juror 9 was insufficient, the trial court erred in sustaining the State’s use of the peremptory strike. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

VILLANTI and LaROSE, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

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Jesus Rodriguez, Appellant,
v.
The State of Florida, Appellee.

No. 3D08-182.

District Court of Appeal of Florida, Third District.

Opinion filed February 10, 2010.

An Appeal from the Circuit Court for Miami-Dade County, Julio A. Jimenez, Judge, Lower Tribunal No. 02-10536.

Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.

Before RAMIREZ, C.J., and GERSTEN, and SUAREZ, JJ.

RAMIREZ, C.J.

Jesus Rodriguez appeals his final judgment of conviction and sentence for first-degree murder, kidnapping, burglary of a dwelling and aggravated stalking. Finding neither fundamental error nor an abuse of discretion, we affirm.

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I. Facts

The State charged Rodriguez with the murder of his wife. The grand jury indicted him on (1) first-degree murder, (2) kidnapping, (3) burglary with an assault or battery, and (4) aggravated stalking. The evidence against him on the murder charge was mostly circumstantial, as his wife’s body was never found.

The charges stem from a domestic dispute dating back to October of 2001, when Rodriguez’s wife Isabel petitioned for divorce. She obtained a restraining order against Rodriguez after she received a phone call from him threatening to kill her. Rodriguez was served on November 1, 2001. At trial, two witnesses, including the officer who served the injunction, testified that Rodriguez became very angry when he was served with the order and that he made threatening remarks to Isabel.

On November 13, 2001, Isabel became missing. Judith Almeida, who was a tenant on Isabel’s property, testified that she received a call from Rodriguez asking her if she would be going to work the next morning and that she saw someone hiding behind a car on the property the next morning while taking out the trash. Rodriguez’s adult daughter, Rochelle, testified that she and Rodriguez had planned to take her car to his farm on the morning of November 13 for him to work on it. At Rodriguez’s farm, Rochelle noticed a fire burning on the property and that Rodriguez had scratches on his nose and was pressure cleaning his Lincoln

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Continental, which had been seen at Isabel’s house earlier in the day. Rodriguez’s girlfriend also testified that he did not have scratches on his body before he left the house that day, but did have scratches on his back and nose when he returned in the evening.

On November 15, investigators transported Rodriguez’s Lincoln Continental to the medical examiner’s office for processing. The homicide detective that transported the vehicle testified that immediately upon opening the trunk, he noticed the smell of a decomposed body and the smell of a cleaning agent. The detective also testified that the entire trunk was soaked and was wet from condensation. On November 26, 2001, an investigating officer went to Isabel’s home to serve a search warrant and encountered Rodriguez on the property. Rodriguez invited the officer inside the home to show him the property, and told the officer that he need not worry about the restraining order because Isabel would never be coming back. Rodriguez was arrested on April 11, 2002. While the detective was preparing paperwork on the arrest, Rodriguez spontaneously stated that the police were mistaken about his motive for killing Isabel, namely that it was about money and not jealousy.

Rodriguez testified on his own behalf at trial, admitting that he was at Isabel’s home on November 13 in violation of the restraining order. The jury found him guilty as charged on all four counts, and he was sentenced to life in

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prison for the murder and kidnapping counts, thirty years for the burglary count, and five years for the aggravated stalking count.

II. Law

On appeal, Rodriguez first argues that the prosecutor committed fundamental error in closing argument when she impermissibly shifted the burden of proof from the State to the defense by arguing that there was nothing in the jury instructions that required the State to have a body, or proof of how the victim died. The prosecutor stated during closing:

There is nothing that says any of that. All it says in the jury instruction is, we have to prove that she is dead and we have to prove that he did it. Do any of you believe, if any of you believe, beyond a reasonable doubt that she is not dead, well, you know that I invite you go ahead and acquit him. If you believe beyond a reasonable doubt that she is not dead acquit him. But nobody can look at this evidence as a whole, you’re all smart people you all have common sense that’s why you’re on this jury. You’re not like him. He has no common sense.

There was no objection to this statement, but Rodriguez argues that this constituted fundamental error. The Florida Supreme Court has stated:

[F]ailing to raise a contemporaneous objection when improper closing argument comments are made waives any claim concerning such comments for appellate review. The sole exception to the general rule is where the unobjected-to comments rise to the level of fundamental error, which has been defined as error that “reaches 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.”

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Mosley v. State, 34 Fla. L. Weekly S468 (Fla. July 16, 2009) (quoting Simpson v. State, 3 So. 3d 1135, 1146 (Fla. 2009).

We recognize that the prosecutor misstated the law. In Gore v. State, 719 So. 2d 1197 (Fla. 1998),¹ the Florida Supreme Court recognized that it is error for a prosecutor to attempt to shift the burden of proof from the State to the defense. See also Northard v. State, 675 So. 2d 652, 653 (Fla. 4th DCA 1996); Clewis v. State, 605 So. 2d 974, 975 (Fla. 3d DCA 1992). What she should have said was that “if you do not believe beyond a reasonable doubt that the victim is dead, go ahead and acquit him.” There is no suggestion that the prosecution intentionally misstated that law. Furthermore, the misstatement could have been readily corrected with a curative instruction had the defense objected. For example, in Heinz v. State, 615 So. 2d 238, 239 (Fla. 3d DCA 1993), we affirmed a conviction after the prosecutor made an improper burden shifting argument where the defense objected and which the trial court immediately sustained with a cautionary instruction. Id.

Nevertheless, Rodriguez argues that the misstatement improperly shifted the burden of proof regarding an essential element of the crime and affected the fairness of the trial, thus constituting fundament error. We disagree.

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Rodriguez relies heavily on Murray v. State, 937 So. 2d 277 (Fla. 4th DCA 2006) to argue that the error here was fundamental. In Murray, however, the Fourth District Court of Appeal dealt with a judge that gave improper jury instructions that the defense had to prove self-defense beyond a reasonable doubt. Id. at 280. There is no improper jury instruction here. Furthermore, the misstatement of the law here occurred only once, during closing argument, and evidently went unnoticed until after Rodriguez was convicted and the transcript was examined.

Given that the prosecution did not intentionally misstate the law, we view the improper remark in context. The misstatement was preceded by the prosecution stating that “we have to prove that she is dead …” In her initial closing argument, the prosecutor argued that “there’s not a doubt in the world that Isabel Rodriguez is dead,” apparently a higher burden than “reasonable doubt.” Later she states that “[t]here is no reasonable doubt that Isabel Rodriguez is dead.” In her rebuttal argument, after misstating her burden, she states that she does not have to prove how she died, “I just have to prove that she’s dead.” Later still, she admits that the defendant “doesn’t have to prove anything to you, that burden is mine.” She then goes over the jury instructions and states: “[b]efore you can find the defendant guilty of first degree premeditated murder [sic] State must prove the following three elements beyond a reasonable doubt. Number one, that the victim

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is dead. Generally we do have a body. You don’t have a body here. The State would submit to you that we have proved beyond a reasonable doubt that Isabel Rodriguez is dead ….” Two pages later in the transcript, the prosecutor repeats that the State must prove beyond a reasonable doubt that the victim is dead. Five pages later, she states: “[a]nd the one thing that is proven beyond a reasonable doubt, and that is a doubt that you can attach a reason to, which has been proven beyond every reasonable doubt, that is he killed her.”

During the jury instructions, because they contained lesser-included offenses, the judge charged the jury five different times that the State had to prove beyond a reasonable doubt that Isabel Rodriguez is dead. This was in addition to the standard instruction on reasonable doubt and burden of proof.

Thus, we have a jury that is repeatedly told that the State had the burden to prove that Isabel Rodriguez was dead and one instance where the prosecution inadvertently misstated the State’s burden of proof. Consequently, we do not believe that the error here, to quote from Mosley, supra, “reaches 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.”

We decline to address the remaining issue raised on appeal as we conclude that it is meritless and/or harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

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III. Conclusion

We affirm Rodriguez’s judgment of conviction and sentence.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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Courtesy of David Edelstein

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DENNIS STARK, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D07-3913.

District Court of Appeal of Florida, Second District.

Opinion filed February 10, 2010.

Appeal from the Circuit Court for Pinellas County, Richard A. Luce, Judge.

James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Judge.

In several motions pursuant to Florida Rule of Criminal Procedure 3.800, Dennis Stark challenged the legality of the sentences imposed following his burglary convictions. The postconviction court granted Stark’s motions and resentenced him.

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But the new sentence was, again, illegal. Therefore, we reverse and remand for resentencing.

Stark entered open guilty pleas to several charges, including two separate charges of burglary of a dwelling. He challenges only the sentences imposed for the burglaries. At sentencing, the court orally announced that Stark would be sentenced for these crimes as both a prison releasee reoffender and a habitual felony offender. For each of the burglaries, the court orally imposed a fifteen-year minimum mandatory PRR prison term and a concurrent thirty-year HFO term, the last fifteen years of the latter to be suspended and served on probation.

For some reason the original sentencing documents omitted the PRR and HFO designations. Stark, however, filed a rule 3.800(a) motion asserting that the orally pronounced sentences were illegal under the Prison Releasee Reoffender Punishment Act (PRRPA) because the incarcerative portions of the concurrent HFO sentences did not exceed the PRR terms. See § 775.082(9)(c), Fla. Stat. (2002); Grant v. State, 770 So. 2d 655, 659 (Fla. 2000) (holding that imposing equal, concurrent incarcerative terms as a PRR and a HFO violates the PRRPA); Johnson v. State, 927 So. 2d 251, 252 (Fla. 2d DCA 2006) (stating that HFO term of thirty years’ imprisonment, suspended after fifteen years, to be served concurrently with a fifteen-year PRR term violated the PRRPA); Michel v. State, 935 So. 2d 1228, 1230 (Fla. 5th DCA 2006).

When considering Stark’s motion, the postconviction court recognized that both the orally pronounced sentences and the sentences as written were problematic. The sentences as orally pronounced were illegal because they included equal concurrent PRR and HFO incarcerations. The written sentences were erroneous

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because they did not comport with the orally pronounced sentences, and they were illegal because, without the omitted HFO sentencing enhancements, the thirty-year terms exceeded the maximum permissible sentences for second-degree felonies.¹ See § 775.082(3)(c) (stating that the maximum sentence for a second-degree felony is fifteen years’ imprisonment); Williams v. State, 744 So. 2d 1156 (Fla. 2d DCA 1999) (holding that if a discrepancy exists between the oral pronouncement of sentence and the written sentencing documents, the documents must be corrected to conform to the oral imposition of sentence).

To correct these problems, the court resentenced Stark only as a HFO on one of the burglaries and imposed a thirty-year sentence, to be suspended after fifteen years. On the other, separate burglary conviction, the court resentenced Stark only as a PRR, to the minimum mandatory term of fifteen years’ imprisonment. Stark filed a rule 3.800(b) motion challenging the resentencing because he had not been present. The court again granted Stark’s motion and held yet another resentencing hearing.

At the second resentencing hearing Stark’s counsel argued that the court’s new sentencing scheme was illegal because the State had sought PRR enhancement as to both charges. He pointed out that when the State invoked the PRR statute and proved that Stark qualified as a PRR, a PRR sentence became mandatory. Thus, Stark claimed, the court had no discretion to forgo sentencing him as a PRR on one of the burglary charges, as the court had attempted to do at the first resentencing hearing. The postconviction court apparently agreed with this argument because it returned to

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the original sentencing scheme, imposing fifteen-year PRR and thirty-year HFO sentences on both burglary counts. However, in order to avoid the problem with the original sentencing arrangement, the court lengthened the incarcerative terms of the HFO sentences. It ordered the HFO sentences suspended after fifteen years and one month, such that the HFO incarcerations exceeded the PRR sentences.

Stark then filed yet another motion to correct sentencing error, arguing that by extending the incarcerative portions of the HFO sentences, the court had impermissibly increased his sentences after he had begun serving them. The court denied that motion, and this appeal followed.

As the State concedes, Stark is correct. Increasing a sentence after the defendant has begun serving it violates the constitutional prohibition against double jeopardy. See Ashley v. State, 850 So. 2d 1265, 1267 (Fla. 2003); Pate v. State, 908 So. 2d 613, 614 (Fla. 2d DCA 2005). Accordingly, we reverse the sentences imposed at the second resentencing and remand for another resentencing.

The parties’ only dispute in this appeal centers on the postconviction court’s resentencing options on remand. Because the court may not increase the incarcerative portions of the HFO sentences beyond the fifteen years already imposed, Stark maintains that its only recourse is to strike the HFO sentences altogether. This is because the court is unable to impose HFO incarcerations that exceed the PRR terms which, he points out, are mandatory. See State v. Garcia, 923 So. 2d 1186, 1187-88 (Fla. 3d DCA 2006).

But the proposition that a court may not forgo PRR sentencing when the State has invoked the Act and proved its applicability, while generally true, is not

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absolute. The PRRPA was designed to increase, not decrease, the potential punishments of those who qualify under the Act’s terms. “If a defendant is eligible for a harsher sentence `pursuant to [the habitual offender statute] or any other provision of law’ the court may, in its discretion, impose the harsher sentence.” State v. Cotton, 769 So. 2d 345, 354 (Fla. 2000) (quoting § 775.082(9)(c)). That purpose would not be served by limiting the court’s ability “to opt out of the PRR designation when it recognized, post-sentencing via a defendant’s 3.800(b) motion . . . that choosing to maintain the PRR designation could result in a lesser sentence.” Phillips v. State, 834 So. 2d 272, 275 (Fla. 5th DCA 2002).

This court has held that PRR sentences and HFO sentences may be legally imposed for separate offenses. James v. State, 17 So. 3d 753, 754 (Fla. 2d DCA 2009); Tolbert v. State, 827 So. 2d 278 (Fla. 2d DCA 2002). Stark’s two burglary offenses were not part of the same criminal episode and were separate crimes. It is apparent, then, that the court’s first attempt to restructure Stark’s sentences, imposing a fifteen-year PRR sentence for one of the burglaries and a thirty-year HFO sentence suspended after fifteen years for the other, was permissible. A court may restructure erroneous sentences to come close to, but not to exceed, the original sentencing intent. Suarez v. State, 974 So. 2d 451, 453 (Fla. 3d DCA 2008); see also Blackshear v. State, 531 So. 2d 956 (Fla. 1988).

We offer no opinion on what new sentences should be imposed on remand. The court may choose to strike Stark’s HFO sentences, see Michel, 935 So. 2d at 1230, or it may reimpose the sentence structure devised at the first resentencing,

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or it may fashion another sentencing scheme altogether so long as the new sentences do not exceed Stark’s original sentences.

Reversed and remanded.

KELLY and VILLANTI, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

—————

Notes:

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Courtesy of David Edelstein

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VICTOR BRANCACCIO, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-2664.

District Court of Appeal of Florida, Fourth District.

February 10, 2010.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County, Gary L. Sweet, Judge, L.T. Case No. 561993CF001592A.

Marcia J. Silvers of Marcia J. Silvers, P.A., Miami, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

Appellant, Victor Brancaccio, challenges the trial court’s denial of his motion for postconviction relief based upon newly discovered evidence. While the trial court found that evidence of the effects of the drug Zoloft could be considered newly discovered in that the drug warnings issued by the Food and Drug Administration came well after the trial in this action, it concluded that the evidence would not, as a matter of law, establish an involuntary intoxication defense and would not produce an acquittal on retrial. It thus denied the motion. We affirm.

To succeed on a motion for postconviction relief on the grounds of newly discovered evidence, the defendant must prove two factors. First, to qualify as newly discovered evidence, “the asserted facts `must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence.’” Jones v. State, 591 So. 2d 911, 916 (Fla. 1991), (quoting Hallman v. State, 371 So. 2d 482, 485 (Fla. 1979)). Second, “the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.” Jones, 591 So. 2d at 915 (emphasis in original).

The standard of review following denial of a rule 3.850 claim after an evidentiary hearing requires deference to the trial court’s factual findings. See Jeantilus v. State, 944 So. 2d 500, 501 (Fla. 4th DCA 2006). The legal conclusions of the trial court are reviewed de novo. Demps v. State, 761 So. 2d 302, 306 (Fla. 2000). Absent an abuse of discretion, a trial court’s decision on a motion claiming newly discovered

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evidence will not be reversed. Mills v. State, 786 So. 2d 547, 549 (Fla. 2001).

An accused may be completely relieved of criminal responsibility if, because of involuntary intoxication, he was temporarily rendered legally insane at the time he committed the offense. Brancaccio v. State, 698 So. 2d 597, 599 (Fla. 4th DCA 1997) (“Brancaccio I’) (quoting Phillip E. Hassman, Annotation, When Intoxication Deemed Involuntary so as to Constitute a Defense to Criminal Charge, 73 A.L.R.3d 195 (1976)). Stated differently, the definition of insanity has been expanded to include situations in which a person could not distinguish right from wrong as a result of the involuntarily-induced intoxicated state. Miller v. State, 805 So. 2d 885, 887 (Fla. 2d DCA 2001).

In order to establish an involuntary intoxication defense, a defendant must first present sufficient evidence that an intoxicated condition was brought about by the introduction into the defendant’s body “of any substance which he does not know and has no reason to know has a tendency to cause an intoxicated or drugged condition.” Brancaccio, 698 So. 2d at 600 n.4. The defendant would then have the burden to prove that this involuntary intoxication rendered him unable to understand what he was doing and to understand the consequences of his actions, or if he did understand, that he was unable to know that his actions were wrong. See generally Hall v. State, 568 So. 2d 882 (Fla. 1990). “If a defendant introduces evidence sufficient to present a reasonable doubt about sanity, the presumption of sanity vanishes and the state must prove the accused’s sanity beyond a reasonable doubt.” Id. at 885 n.6.

In Brancaccio I, we reversed Brancaccio’s murder conviction for a new trial after ruling that he was entitled to a jury instruction on involuntary intoxication where he presented evidence of intoxication resulting from his use of Zoloft pursuant to a prescription. On retrial, several expert witnesses testified for the defense that at the time of the incident, Brancaccio was suffering from negative side effects of Zoloft. These defense experts opined that Brancaccio was involuntarily intoxicated by Zoloft and was unable to form the intent to commit the offense, noting that his symptoms of anger, aggression and hyperactivity were made worse by his use of Zoloft. By contrast, the state presented several experts of its own who testified that Brancaccio was not involuntarily intoxicated because of his use of Zoloft. At the conclusion of the retrial, Brancaccio was again convicted as charged. On direct appeal, this court affirmed his convictions. See Brancaccio v. State, 773 So. 2d 582 (Fla. 4th DCA 2000).

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In 2006, Brancaccio filed a motion for postconviction relief based on newly discovered evidence consisting of new advisories, warnings and publications of the FDA and other drug regulatory agencies concerning the possible side effects of Zoloft in minors, including aggressive and impulsive behavior. The trial court conducted an extensive evidentiary hearing and analyzed the evidence, comparing it to the evidence of guilt. The court concluded that the evidence of the drug’s side effects and the FDA warnings constituted newly discovered evidence. However, as to the second factor, the court concluded that the evidence would not have resulted in an acquittal on retrial, because the other evidence in the case showed that an involuntary intoxication defense would not have succeeded.

Other evidence showed that Brancaccio knew that his actions in striking his victim and then moving her behind a berm to continue the beating until she was dead were wrong, negating any involuntary intoxication defense. For example, the state presented evidence that Brancaccio told witnesses that he continued his initial assault on the victim so that she would not remember him, and that he killed her because he feared she would go to the police. Additionally, his subsequent actions showed that he was trying to avoid the consequences of his actions, also providing evidence of his knowledge that he knew his actions were wrong and thus could distinguish right from wrong. Concluding from the evidence that Brancaccio had engaged in a two-day systematic course of conduct to kill the victim and then cover up the evidence, the trial court denied relief.

As there was substantial, competent evidence to support this view, the trial court did not err in rejecting the claim that the newly discovered evidence regarding the warnings of the side effects of Zoloft would have probably resulted in an acquittal on retrial. We thus affirm the trial court’s thorough ruling.

POLEN and FARMER, JJ., concur.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DEMETRIUS WOODY, Appellant,
v.
STATE OF FLORIDA, Appellee.

No. 4D08-2017.

District Court of Appeal of Florida, Fourth District.

February 10, 2010.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Mily Rodriguez-Powell, Judge, L.T. Case No. 02-4607CF10B.

Richard C. Klugh, Jr., of Law Offices of Richard C. Klugh, Jr., Miami, and Abe A. Bailey of Law Offices of Abe A. Bailey, P.A., Miami, for appellant.

Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

The defendant appeals an order denying his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. Among the issues raised, he alleged ineffective assistance of counsel based upon an improper Miranda¹ warning and his counsel’s failure to object to an incomplete jury instruction. We affirm the court’s order on the Miranda issue. See Anthony v. State, 980 So. 2d 610, 612 (Fla. 4th DCA 2008) (stating that trial counsel was not ineffective by failing to raise the Miranda issue prior to the Roberts² decision). However, we reverse and remand the case on the jury instruction issue for either the attachment of relevant portions of the record that conclusively refute the defendant’s claims or an evidentiary hearing. We find no merit in the other issues raised.

The defendant alleges his trial counsel was ineffective when he failed “to object, contest, and preserve for intelligent appellate review, the trial court’s erroneous incomplete jury instruction on manslaughter.” The defendant was charged with murder in the second degree with a firearm. During the charge conference, defense counsel requested instructions on manslaughter including justifiable and excusable homicide. According to the record before us, the trial court instructed the jury as follows:

The Court: If you decide that, a main accusation is not

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proven beyond a reasonable doubt, you need next to decide if the defendant was guilty of the lesser included crime. The lesser included crime [of] Murder in the Second Degree with a firearm is Manslaughter. Before you can find the defendant guilty of manslaughter the state must prove the following elements beyond a reasonable doubt:

1. Ezra Buckner is dead.

2. The death was caused by Demetrius Woody. A) Intentionally Caused the death of Ezra Buckner, or B) The death was caused by the culpable negligence of Demetrius Lamar Woody. However, the defendant cannot be guilty of manslaughter if the defendant was justified or excusable homicide.

The defendant claims trial counsel was ineffective in failing to object when the trial court omitted the definitions of justifiable and excusable homicide from the instruction. He argues that had the proper instruction been given, the jury could have found him not guilty based on his claim of self-defense. Here, the trial court summarily denied the ineffective assistance of counsel claim because the jury instruction issue could have been raised on direct appeal.³

As a general rule, where manslaughter appears on the verdict form, the jury must be instructed as to the definitions of justifiable and excusable homicide because manslaughter is a residual offense, which can be fully defined only by exclusion of the properly explained defenses of excusable and justifiable homicide. Avila v. State, 745 So. 2d 983, 984 (Fla. 4th DCA 1999). “The only exception . . . is where defense counsel affirmatively agreed to or requested the incomplete instruction.” State v. Lucas, 645 So. 2d 425, 427 (Fla. 1994) (citing Armstrong v. State, 579 So. 2d 734 (Fla. 1991)).

Although the record before us reveals that the definitions were requested, it does not reflect whether the trial court gave the full instruction including the definitions of excusable and justifiable homicide or whether defense counsel objected to or agreed to the

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modified instruction.⁴ The trial court summarily denied this claim. Such a resolution is proper only where the claims are either facially invalid or conclusively refuted by the record. Willacy v. State, 967 So. 2d 131, 138 (Fla. 2007).

This court has previously reversed a summary denial and ordered an evidentiary hearing on a Rule 3.850 motion where the trial court had, allegedly due to trial counsel’s mistake, failed to instruct on excusable homicide as part of the manslaughter instruction. See Platt v. State, 697 So. 2d 989 (Fla. 4th DCA 1997). For the reasons explained in Platt, we reverse and remand the summary denial for attachment of the record conclusively refuting the defendant’s claim or for an evidentiary hearing on the issue.

Affirmed in part; Reversed in part and Remanded.

GROSS, C.J., and LEVINE, J., concur.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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