Johnston v. StateJohnston v. State
David Eugene Johnston appeals his conviction for first-degree murder and sentence of death. We have jurisdiction.
At approximately 3:30 a.m. on November 5, 1983, David Eugene Johnston called the Orlando Police Department, identified himself as Martin White, and told the police “somebody killed my grandma” at 406 E. Ridgewood Avenue. Upon their arrival, the officers found the dead body of 84-year-old Mary Hammond. The victim‘s body revealed numerous stab wounds as well as evidence of manual strangulation. The police arrested Johnston after noticing that his clothes were blood-stained, his face was scratched and his conversations with the various officers at the scene of the crime revealed several discrepancies as to his account of the evening‘s events.
The record reveals that prior to the murder Johnston had been working at a demolition site near the victim‘s home and had had contact with the victim during that time. In fact, Johnston was seen washing dishes in the victim‘s apartment five nights before the murder.
Johnston was seen earlier on the evening of the murder without any scratches on his face and the clothing he was wearing tested positive for blood. In addition, the watch that Johnston was seen wearing as late as 1:45 a.m. on the morning of the murder was found covered with blood on the bathroom countertop in the victim‘s home. Further, a butterfly pendant that Johnston was seen wearing as late as 2:00 a.m. that morning was found entangled in the victim‘s hair. The record also reveals that a reddish-brown stained butcher-type knife was found between the mattress and the boxspring of the victim‘s bed, a footprint matching Johnston‘s shoe was found outside the kitchen window of the victim‘s house, and that silver tableware, flatware, a silver candlestick, a wine bottle and a brass teapot belonging to the victim were found in a pillowcase located in the frontend loader parked at the demolition site.
Appellant now alleges that twenty-two errors occurred below. As in Medina v. State, 466 So.2d 1046, 1048 n. 2 (Fla. 1985), we summarily reject many of the issues raised by appellant that we have rejected in the past and similarly do not warrant reversal in this instance. Thus, we conclude that the trial court did not err in denying the following motions: to preclude challenge for cause of the potential jurors; to vacate the death penalty because the aggravating and mitigating circumstances enumerated in
Other issues which the record clearly reveals do not entitle Johnston to relief are the following: whether the trial court erred in denying appellant‘s motion to voir dire individual grand jurors, Porter v. State, 400 So.2d 5 (Fla. 1981); whether the trial court erred in denying the defendant‘s motion to dismiss the indictment as vague, O‘Callaghan v. State, 429 So.2d 691 (Fla. 1983); whether the trial court erred in denying the defendant‘s motion for judgment of acquittal; whether the trial court erred in admitting a photograph of the victim into evidence, Foster v. State, 369 So.2d 928 (Fla.), cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979); whether the trial court erred in refusing to instruct the jury on aggravated battery, battery and assault, Martin v. State, 342 So.2d 501 (Fla. 1977); and whether comments made by the prosecutor during the sentencing phase of the trial were improper. Bertolotti v. State, 476 So.2d 130 (Fla. 1985).
In an argument that warrants little discussion, we note that appellant‘s contention that the trial court erred in denying his motion for notification of convening the grand jury is moot because counsel for appellant appeared before the grand jury when the state presented its case against Johnston.
Appellant contends that the trial court erred in denying his motion to enforce
The office of the state attorney issued subpoenas duces tecum to both of the appellant‘s attorneys, seeking any written statement which purported to be a confession to the killing of the victim by any person other than appellant. Appellant filed a motion to quash the subpoenas which, after a hearing, was denied. Both attorneys then responded to the subpoenas and turned the two letters over to the prosecutor. In a later statement to Investigator Mundy, appellant revealed that he had written both letters. The letters and appellant‘s statement regarding the letters were subsequently introduced at trial.
Appellant seeks to circumvent the abovementioned deficiencies in his argument by asserting that since the letters were sent by him to his attorneys for their own personal viewing, the documents then became subject to the attorney-client privilege. Proceeding on this premise, appellant claims that the issuance of a subpoena duces tecum was equivalent to an issuance to him personally, and thus, once he was compelled, through his attorneys, to produce the letters,
Appellant alleges that the trial court‘s denial of the public defender‘s motion to withdraw as counsel denied him the effective assistance of counsel. In a related claim, appellant contends that he was denied his right to self-representation by the trial court‘s denial of his oral motion to discharge counsel, which was made at a hearing on counsel‘s motion to withdraw. The trial court correctly denied both motions.
The public defender sought to withdraw from the case, in part, because Johnston disregarded his advice by continually calling the Orlando Police Department and inviting them to the jail so that he could give statements about the murder. Counsel also indicated that he could not pursue a line of defense suggested by appellant. The public defender considered the line of defense completely unethical. Counsel never disclosed this line of defense to the court because of the attorney-client privilege.
In verbalizing the reasons why he sought to discharge counsel and represent himself, appellant alleged that his lawyers invaded his right to privacy because they were in possession of a letter he had written to his stepmother. Appellant also expressed dissatisfaction with his attorney‘s failure to pursue a requested line of defense. As mentioned earlier, counsel considered this line of defense unethical.
At a hearing held on the public defender‘s motion to withdraw, the trial court advised Johnston of the various alternatives in regard to representation: 1) he could elect to retain his own attorney privately from his own source of funds, 2) he could elect to be represented by the public defender, or 3) he could elect to represent himself. The trial court then went on to explain the dangers and disadvantages of self-representation, as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The public defender still insisted that he be allowed to withdraw and Johnston continued to assert his right to self-representation.
A trial court is obligated to examine the reasons given by a defendant to support his motion to discharge counsel and the grounds behind counsel‘s motion to withdraw. Smith v. State, 444 So.2d 542 (Fla. 1st DCA 1984). The trial court examined the reasons underlying the defendant‘s motion and properly concluded that they were insufficient. As the trial court explained to Johnston, counsel did not invade his right to privacy because Johnston‘s stepmother, on her own initiative, delivered the letter in question to the public defender‘s office. Further, the trial court commented that all attorneys are constrained by ethical considerations, and, in all likelihood, all attorneys would be precluded from pursuing the line of defense advocated by Johnston. In addition counsel cannot withdraw from a case merely because his client failed to follow his advice. Were we to hold otherwise, the floodgates would open, and substitution of counsel would be warranted in an untold number of cases. Significantly, neither appellant
The trial court properly denied appellant‘s request for self-representation. A criminal defendant has a right to represent himself. State v. Cappetta, 216 So.2d 749 (Fla. 1968), cert. denied, 394 U.S. 1008, 89 S.Ct. 1610, 22 L.Ed.2d 787 (1969). However, the right to self-representation is not absolute.
In determining whether a defendant has knowingly and intelligently waived his right to counsel, a trial court should inquire into, among other things: defendant‘s age, mental status, and lack of knowledge and experience in criminal proceedings. Keene v. State, 420 So.2d 908 (Fla. 1st DCA 1982), review denied, 430 So.2d 452 (Fla. 1983). The trial judge made the proper inquiry in this case and correctly concluded that the desired waiver of counsel was neither knowing nor intelligent, in part, because of Johnston‘s mental condition. In fact the court‘s order denying Johnston‘s motion for self-representation and counsel‘s motion to withdraw specifically cited Johnston‘s age, education, and reports of psychiatrists and past admissions into mental hospitals. Clearly, the trial court was correct in concluding that Johnston would not receive a fair trial without assistance of counsel.
Appellant next alleges that the trial court erred in denying three motions for mistrial, all of which were made following a statement which was allegedly admitted in violation of Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). Williams proscribes the admission of evidence pertaining to bad character or propensity before the defendant places his character in issue before the jury. See also
The first remark complained of involves a friend of Johnston‘s who testified that he found a bag of marijuana in Johnston‘s clothes. Immediately following this remark defense counsel requested that the attorneys approach the bench, at which time he objected to the reference to the drugs. However, counsel never asked for a curative instruction and failed to make a motion for a mistrial. As the court pointed out, “I have nothing to rule on at this point.” We refuse to find that the trial court erred in denying a motion that had never been made. Further, the record reveals that there had been prior testimony that Johnston had been drinking that night and testimony was forthcoming about appellant‘s heavy drug usage on the evening in question. Hence, aside from the fact that the propriety of the reference to the bag of marijuana had not been properly objected to, the reference to the drugs was hardly prejudicial in light of the subsequent evidence regarding appellant‘s heavy drug usage on the evening in question.
The second and third allegedly prejudicial remarks both involve comments pertaining to Johnston‘s prior incarceration. The second remark occurred during the questioning of Jose Mena, an acquaintance of Johnston‘s, who testified that he met Johnston in jail. Counsel objected to the remark and moved for a mistrial only after four additional questions had been asked and answered. We reject the state‘s contention and the trial court‘s finding that
The third remark was made by Robert Mundy, an investigating officer, who testified about a phone call he had received from Johnston in which Johnston indicated that he wanted to make a deal with the judge. The following comment then occurred:
Q. Okay. At this point in time were you asking Mr. Johnston any questions or were you just listening to what he was saying?
A. I was listening to what Mr. Johnston was telling me.
Q. All right, and did he go on to tell you anything further?
A. Yes, he did. He stated that he was scared because he had already gone to jail for two years for something.
The trial court sustained counsel‘s contemporaneous objection, instructed the jury to disregard the remark, and denied the motion for a mistrial.
A motion for a mistrial is addressed to the sound discretion of the trial judge and should only be granted in the case of absolute necessity. Salvatore v. State, 366 So.2d 745 (Fla. 1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979). In Williams v. State, 354 So.2d 112 (Fla. 3d DCA 1978), the court held that a witness’ reference to the defendant having previously been imprisoned was not sufficient to require a mistrial in light of the curative instruction given by the trial court. In Ferguson v. State, 417 So.2d 639 (Fla. 1982), we held that the trial court did not abuse its discretion in denying a motion for a mistrial made immediately after a witness testified that he met the defendant in prison. Having carefully reviewed the record, we conclude that any alleged prejudice which may have resulted from a reference to prior incarceration was fully alleviated by the curative instruction. The trial court did not abuse its discretion in denying the motion for a mistrial.
Appellant next alleges that the trial court erred in swearing in each individual juror as selected, thus preventing “backstriking” of jurors. Absent exigent circumstances, Tedder v. Video Electronics, 491 So.2d 533 (Fla. 1986), the procedure used by the trial court violated
The next issue raised by appellant is whether the trial court erred in overruling his objection to questioning during the redirect examination of Karen Fritz, the victim‘s granddaughter and next door neighbor, and Officer Roberts, an officer called to the scene of the crime. The trial court did not err. A party may re-examine a witness about any matter brought up on cross-examination, Noeling v. State, 40 So.2d 120 (Fla. 1949), and a trial court has broad discretion in determining the proper scope of the examination of witnesses. Maggard v. State, 399 So.2d 973 (Fla.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981). As the record indicates, the redirect examination of Karen Fritz and Officer Roberts was completely within the scope of questions asked on cross-examination and the trial court did not abuse its discretion in so finding.
At the outset, we note that trial counsel never made a motion for a new trial in regard to the specific testimony in question. The only possible relation between a request for a new trial and Ostermeyer‘s testimony rests in a motion for a new trial which refers to all objections made at trial. Given the fact that an appellate court will not overturn a trial court‘s order granting or denying a new trial absent an abuse of discretion, Baker v. State, 336 So.2d 364 (Fla. 1976); Bell v. State, 90 So.2d 704 (Fla. 1956), and all of the grounds alleged in the motion for a new trial are without merit, we refuse to overturn the trial court‘s order denying appellant‘s motion for a new trial. Warren v. State, 443 So.2d 381 (Fla. 1st DCA 1983). Nevertheless, we will examine the propriety of the objections made to Ostermeyer‘s testimony.
Appellant alleges that the opinion testimony of Officer Ostermeyer is inadmissible because he was never qualified as an expert in the detection of blood as required by
Although never qualified as an expert, Officer Ostermeyer was an evidence technician and a member of the Orlando Police Department for twelve years. It can be inferred from the record that had defense counsel requested that the prosecutor `prove’ that Officer Ostermeyer was an expert in the field of Luminol testing, the prosecutor would have had little trouble in qualifying Officer Ostermeyer as an expert.
The testimony given by Officer Ostermeyer in this instance is analogous to the non-expert testimony held admissible in Jones v. State, 440 So.2d 570 (Fla. 1983), and Peacock v. State, 160 So.2d 541 (Fla. 1st DCA), cert. denied, 168 So.2d 148 (Fla. 1964), cert. denied, 381 U.S. 916, 85 S.Ct. 1541, 14 L.Ed.2d 436 (1965).
In Jones, we held that a police officer‘s testimony that the mark on the “stash house” window sill was made by the recoil of a high-powered rifle was admissible. Our holding was based, in part, on the fact that the police officer “possessed a working knowledge of firearms gained through his training as a police officer and through his extensive work as an evidence technician.” 440 So.2d at 574. Similarly, Officer Ostermeyer demonstrated that he possessed a sufficient working knowledge of Luminol testing. In Peacock, the court allowed a deputy to testify as to his visual comparison of a defendant‘s automobile tires with casts of tire prints found on and near the scene of the crime. In affirming the trial court‘s decision to admit such testimony, the court stressed the fact that the jury ultimately determines the credence and weight of the testimony. 160 So.2d at 543. Likewise, in this instance, the jury properly determined the value and accuracy of the results of the admittedly “presumptive” Luminol blood test.
Appellant complains that the testimony of Officer Stickley and the closing argument of the prosecutor both contain improper comments on Johnston‘s fifth amendment right to remain silent. This contention has not been preserved for appellate review because not only were the required contemporaneous objections never lodged at trial, Clark v. State, 363 So.2d 331 (Fla. 1978), but counsel never even belatedly objected to the comments. As an aside, we note that the allegedly improper comment made by the prosecutor was merely a comment on the evidence and was not fairly susceptible of being interpreted by the jury as a comment on the defendant‘s right to remain silent. State v. Kinchen, 490 So.2d 21 (Fla. 1985); State v. Sheperd, 479 So.2d 106 (Fla. 1985).
Appellant admits that the trial court was justified in finding, as an aggravating circumstance, that he was previously convicted of a felony involving the use or threat of violence to the person.
Appellant contests the finding, as an aggravating circumstance, that the capital felony was committed while the defendant was engaged in the commission of a burglary.
Appellant contests the application of the aggravating circumstance that the murder was especially heinous, atrocious or cruel.
Lastly, appellant contends that the trial court erred in failing to find any mitigating circumstances. The trial court has broad discretion in determining the applicability of the various mitigating circumstances, so long as all of the evidence and all of the mitigating circumstances are properly considered. Lemon v. State, 456 So.2d 885 (Fla. 1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1233, 84 L.Ed.2d 370 (1985); White v. State, 446 So.2d 1031 (Fla. 1984). As indicated by the sentencing order and the complete record of this case, the trial court fulfilled its obligation to consider all of the evidence and all of the mitigating
Appellant cites several factors to support his contention that the capital felony was committed while he was under the influence of extreme mental and emotional disturbance,
Johnston‘s age, twenty-three years at the time of the murder, does not warrant a finding of age as a mitigating factor.
A sentence of death is appropriate upon a finding of three aggravating and no mitigating circumstances. White v. State, 446 So.2d 1031 (Fla. 1984).
For the reasons expressed, we affirm appellant‘s conviction and imposition of the death sentence.
It is so ordered.
McDONALD, C.J., and BOYD, OVERTON, EHRLICH and SHAW, JJ., concur.
BARKETT, J., concurs in result only.