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Florida Supreme Court - Criminal Headnotes - January 11, 2018

DONTAE R. MORRIS V. STATE OF FLORIDA – CHANGE OF VENUE FOR PRETRIAL PUBLICITY; BOLSTERING TESTIMONY OF STATE'S WITNESS; REMAND FOR PENALTY PHASE POST-HURST WHERE JURY RECOMMENDATION NOT UNANIMOUS

Direct appeal from conviction and sentencing for first-degree murder.

The defendant raised numerous issues on appeal, arguing the trial court had erred:

(1) in granting the state's motion to reverse an earlier ruling on the defendant's for a change of venue due to pre-trial publicity concerning other murders for which he had been charged, including the murders of two police officers; and

(2) in admitting a statement the defendant had voluntarily made while in custody, "repenting" for having killed, and in preventing him from introducing testimony of a psychologist concerning his mental state at the time he made the statement; and that certain statements the prosecutor had made in opening and closing argument had deprived him of a fair trial, including:

(a) that a state's witness "had not yet been convicted of any felonies" at the time she contacted the police, which the defendant argued was improper bolstering of her testimony. The trial court sustained the defendant's objection, but denied his request for a curative instruction;

(b) various remarks concerning witness credibility, including the statement that there had been "no suggested motive" for the witness to lie, which the defendant argued impermissibly shifted the burden of proof to him; and

(c) various comments concerning statements the defendant had made to the witness in the course of a recorded jailhouse telephone call, which the defendant argued invited the jury to convict him for matters mentioned in that call, rather than for the murder itself.

The Court rejected each of these arguments, finding that the trial court had not abused its discretion in ruling as it had, and that the prosecutor's statements, even if improper, did not compromise the integrity of the trial.

Because the penalty phase jury was not unanimous in its recommendation of the death penalty, the Court vacated the death sentence and remanded for a new penalty phase, in light of Hurst v. Florida, 136 S.Ct. 616 (2016). The Court therefore declined to reach other penalty phase issues, including the proportionality of the sentence.

Conviction affirmed, death sentence vacated, case remanded for new penalty phase.

VAHTIECE ALFONZO KIRKMAN V. STATE OF FLORIDA – REMAND FOR PENALTY PHASE POST-HURST WHERE JURY RECOMMENDATION NOT UNANIMOUS

Direct appeal from conviction and sentencing for first-degree murder.

The defendant's argument on appeal centered on the testimony of the state's primary witness, who had pleaded guilty to his participation in another, earlier murder in which the defendant was also charged. The trial court had allowed the witness to mention that fact, but without going into the details of the earlier murder.

The state's theory was that the defendant wanted to silence the victim, who he feared was talking to the police about the earlier murder, and that the witness cooperated in this second murder because he was afraid of the defendant. On appeal, the defendant argued it would have been sufficient to disclose that he and the witness were engaged in an ongoing criminal enterprise, without mentioning the earlier murder specifically.

The Court rejected this argument, finding that the trial court had not abused its discretion in allowing relevant evidence of an unrelated crime, without allowing it to become "a feature of the trial."

Because the penalty phase jury was not unanimous in its recommendation of the death penalty, the Court vacated the death sentence and remanded for a new penalty phase, in light of Hurst v. Florida, 136 S.Ct. 616 (2016). The Court therefore declined to reach other penalty phase issues, including the constitutionality of the state's death penalty scheme and the proportionality of the sentence.

Conviction affirmed, death sentence vacated, case remanded for new penalty phase.