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Florida Supreme Court – Criminal Headnotes – May 11, 2017

KHALID ALI PASHA V. STATE OF FLORIDA — SELF-REPRESENTATION – SPEEDY TRIAL – DENIAL OF ALIBI JURY INSTRUCTION – ADMITTING PHOTOGRAPHIC EVIDENCE

The trial court did not err

  • in offering the defendant an opportunity re-litigate previously denied motions if he would accept appointment of counsel, nor in resetting the trial after the defendant again dismissed appointed counsel, treating the speedy trial demand as having been re-filed rather than “renewed,” nor in refusing to disqualify himself,
  • in denying the defendant’s motion to suppress evidence obtained in an investigative stop based on information relayed by a 911 dispatcher,
  • in reappointing standby counsel, despite the defendant having filed an ethics complaint against him, nor in requiring the defendant to communicate through counsel, nor in denying motions to dismiss standby counsel,
  • in admitting the 911 recording as an “excited utterance,” nor in distributing a transcript to jurors, where no inaccuracy was identified,
  • in denying the defendant’s request for a standard alibi instruction, where the defendant acknowledged he was in the immediate vicinity of the murders,
  • in repeatedly mentioning the need to reconvene for a penalty phase, arguably implying the court expected a guilty verdict, where this issue was not preserved,
  • in admitting morgue and crime scene photographs of the victims, where these were relevant to several disputed issues, nor
  • in a number of other evidentiary rulings.

Issues concerning comments made by the prosecutor which the defendant construed as commenting on his post-Miranda silence and as asserting personal knowledge of the defendant’s guilt were not preserved.

Remanded for penalty phase rehearing because jury determinations on each of two first-degree murder convictions were less than unanimous.

Justices Canady, Polston, and Lawson dissented without opinion on this latter issue.

STEVEN ANTHONY COZZIE V. STATE OF FLORIDA – FOR CAUSE CHALLENGES TO PROSPECTIVE JURORS – REBUTTAL TESTIMONY BY STATE’S MENTAL HEALTH EXPERT – EVIDENCE OF COLLATERAL CRIME –HURST ERROR HARMLESS

The trial court did not err in denying challenges for cause against two prospective jurors who would not consider recommending life if they were permitted a death recommendation. Trial court did not abuse its discretion in allowing rebuttal testimony of state’s mental health expert, despite mention of defendant’s “lack of remorse.” Any error in finding the “avoid arrest” aggravator, though this was not submitted to the jury, was harmless.

The trial court did not abuse its discretion in allowing noncumulative victim impact evidence and evidence of a very similar collateral crime during the penalty phase. The latter countered the defendant’s proposed mitigators — cognitive defects preventing him from planning or conforming his conduct to the requirements of the law, and no significant history of prior criminal conduct — and it was “strong circumstantial evidence” of the CCP aggravator (cold, calculated, and premeditated).

Any Hurst error was harmless.

Justice Polston concurred in an opinion in which Justices Canady and Lawson joined, saying there was no Hurst error, so no harmless error analysis was necessary.

Justice Pariente, concurring in the result, would have found harmless error in admitting testimony of the state’s mental health expert on “lack of remorse.”

Justice Quince, dissenting in part, would have found reversible Hurst error in failing to require “interrogatory verdict,” with separate findings on each of the aggravating factors.

NELSON SERRANO V. STATE OF FLORIDA – BRADY VIOLATION – DENIAL OF POSTCONVICTION RELIEF AFFIRMED – PETITION FOR HABEAS CORPUS DENIED – REMANDED FOR PENALTY PHASE HEARING POST-HURST

The state’s failure to disclose statements made in an effort to extradite appellant from Ecuador, to the effect the state would not seek the death penalty, did not violate the requirement of Brady v. Maryland, 373 U.S. 83 (1963), as these statements were not exculpatory. Trial counsel was not ineffective in failing to object to prosecutor’s closing arguments, nor in failing to investigate alibi travel timeline, nor in failing to object to prosecutor’s opening statement comment and law enforcement testimony concerning motive, nor in failing to offer evidence of appellant’s shoe size, absent a showing of a reasonable probability these affected the outcome.

The trial court did not err in denying post-conviction relief on the ground the State had knowingly presented false testimony in violation of Giglio v. United States, 405 U.S. 150 (1972), where there was competent, substantial evidence the testimony was not false. Trial counsel was not ineffective in failing to object to this testimony, nor in failing to seek admission of the witness’ hypnotically refreshed statements. New trial not warranted by post-conviction DNA testing results, where results were inconclusive and would not “probably” produce an acquittal on a retrial. Trial counsel was not ineffective in failing to object to trial court’s exclusion of polygraph evidence from other witnesses, nor in failing to object to evidence he had a collection of guns.

Remanded for penalty phase rehearing because jury determinations on each of four first-degree murder convictions were less than unanimous.

Justice Polston, with whom Justices Canady and Lawson concurred, would not have vacated the death sentences.

DAVID BEASHER SNELGROVE V. STATE OF FLORIDA — DENIAL OF POSTCONVICTION RELIEF AFFIRMED – PETITION FOR HABEAS CORPUS DENIED – REMANDED FOR PENALTY PHASE HEARING POST-HURST

Appellant did not establish that trial counsel was ineffective in presenting evidence during second penalty phase (on remand from prior appeal) of his diminished intellectual functioning, nor that additional evidence would have affected the outcome, the two prongs of Strickland v. Washington, 466 U.S. 668 (1984). Although appellant tested within the margin of error for mental retardation, per Hall v. Florida, 134 S.Ct. 1986 (2014), evidence of concurrent deficits in adaptive behavior and manifestation of the condition before age eighteen was equivocal at best.

Remanded for penalty phase rehearing because jury determinations on each of two first-degree murder convictions were less than unanimous.

Justice Pariente, dissenting in part, would have remanded for rehearing on intellectual disability claim in light of Hall. Justice Polston, with whom Justices Canady and Lawson concurred, would not have vacated the death sentences.

JOHN DOE V. STATE OF FLORIDA — JUDICIAL OFFICER MUST BE PHYSICALLY PRESENT FOR INVOLUNTARY COMMITMENT HEARING

Question certified by 2nd District appeals court on fifteen writ petitions to require judicial officers assigned to “Baker Act” involuntary commitment hearings in Lee County to appear in person at the facilities where the patients are held, rather than conducting hearings by videoconference. Supreme Court ruled the due process right of a patient to be present at hearing would be “meaningless” if the hearing officer were not also physically present.

Justice Canady, in a separate opinion joined by Justice Polston, concurred in result only, and would allow remote appearance per Rule 2.5