Lusk v. State

• Decision Date: 26 January 1984
• Docket Number: No. 59146,59146
• Citation: 446 So.2d 1038
• Parties: Bobby Earl LUSK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1038

446 So.2d 1038

Bobby Earl LUSK, Appellant, v. STATE of Florida, Appellee.

No. 59146.

Supreme Court of Florida.

Jan. 26, 1984.

Rehearing Denied April 10, 1984.

Michael E. Allen, Public Defender, Michael M. Corin and Nancy A. Daniels, Asst. Public Defenders, Tallahassee, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Carolyn M. Snurkowski, Asst. Atty. Gen., Miami, for appellee.

PER CURIAM.

This is an appeal from a final judgment of the Circuit Court of Bradford County imposing the death penalty. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and we affirm both the conviction and sentence.

At the Thanksgiving Day noon meal in the Florida State Prison cafeteria on November 23, 1978, Bobby Earl Lusk fatally stabbed inmate Michael Hall. Lusk was serving three consecutive life terms for two convictions of armed robbery with a pistol and a simultaneous conviction of first-degree murder. The victim, Hall, was serving a 30-year sentence for the second-degree stabbing murder of an inmate at Sumter Correctional Institution. Lusk initially made a statement to prison officials that Hall and two other inmates had robbed him in his cell on the morning of the murder, stabbed his mattress several times and threatened him if he reported the incident. He then said he would not take it anymore and resolved to kill one of the men. According to Lusk, he took his homemade knife to the dining hall at lunchtime and stabbed Hall in the back two or three times. (The body had three stab wounds in the back.) He concluded the statement by saying that Hall had been sitting when he stabbed him and Hall had thrown a tray at him after the stabbing. Lusk moved to suppress the confession as being involuntary but this was denied; the actual tape recording was not used at trial but only portions of a transcript of the tape. At trial, Lusk testified and offered self-defense as an explanation for the crime, stating that Hall threatened to "take him out" and that Hall attacked him first with a knife of his own. The jury returned a verdict of guilty as charged, and at the sentencing phase the jury recommended a sentence of life imprisonment. The judge disagreed and pronounced a sentence of death.

Lusk raises six issues on this appeal: 1.) denial of request for a thirty-day continuance; 2.) denial of a challenge for cause; 3.) prejudicial statement by the court; 4.) double jeopardy; 5.) jury override; and 6.) Gardner violation. Each of these has been carefully considered by the Court and found to be without merit.

Lusk argues first that the trial court erred in refusing to grant his motion for a thirty-day continuance of trial. Initially, Lusk had been represented by Shon Saxon of the Public Defender's Office but because Lusk filed a section 1983 suit against Saxon, Saxon moved to withdraw as Lusk's attorney. On October 9, 1979, the trial court granted the motion to withdraw and appointed another lawyer, Mack Futch, to represent Lusk. Trial date was set for December 3. On November 14, Futch filed for a thirty-day continuance alleging problems in getting depositions transcribed and in getting prison witnesses interviewed. The trial court entered an order on November 19 directing immediate transcription of the deposition material but denied the motion for continuance. On November 28, Futch filed an amended motion for continuance, and this too was denied.

The granting or denial of a motion for continuance is within a court's discretion and will not be overturned absent a palpable abuse of discretion. Jent v. State, 408 So.2d 1024 (Fla.), cert. denied, 457 U.S 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1981); Ziegler v. State, 402 So.2d 365 (Fla.1981), cert. denied, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982); Magill v. State, 386 So.2d 1188 (Fla.1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981). No abuse of discretion appears clearly and affirmatively on the record and we therefore refuse to say that the trial court committed error.

For his second issue, Lusk argues that the trial court erred in denying his challenge for cause of a prospective juror who was a prison correctional officer and who had heard conversations about the offense. Prior to trial, Lusk made an oral motion in chambers to disqualify present and past prison employees and their relatives from the venire. The court denied the motion, ruling that the offense did not involve acts against prison personnel. Lusk later challenged for cause prospective juror Williams, an employee at Union Correctional Institution (U.C.I.). The court overruled the challenge and Lusk then excused the juror with a peremptory challenge.

We recently addressed the same issue in Morgan v. State, 415 So.2d 6 (Fla.), cert. denied, 459 U.S. 1055, 103 S.Ct. 473, 74 L.Ed.2d 621 (1982). In that case, Morgan was tried for the stabbing murder of a fellow inmate at U.C.I. He moved to exclude employees of the state prison system from the jury, basing his argument on section 40.07(2), Florida Statutes (1977) [now section 40.013(2) ], which disqualified sheriffs, deputies and municipal police officers from jury service. We declined in that case to include all correctional officers within the classes of persons disqualified from jury service. Lusk argues that section 40.013(2) should disqualify correctional officers since a law enforcement position inherently creates a disability to serve as a fair and impartial juror. We disagree and reaffirm our holding in Morgan that state prison employees are not automatically disqualified from jury service.

The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court. Singer v. State, 109 So.2d 7 (Fla.1959). Lusk has presented no evidence that prospective juror Williams would not have rendered his verdict solely upon the evidence presented. This Court has reviewed the transcript of jury selection and we are satisfied that Williams was not subject to challenge for cause because of any bias or prejudice.

In any event, Williams was peremptorily challenged and excused from the venire. Lusk argues that Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) and Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919) stand for the rule that it is error for a court to force a party to exhaust his peremptory challenges on persons who should be excused for cause since it has the effect of abridging the right to exercise peremptory challenges. We need not reach this issue since Lusk's counsel agreed at oral argument before this Court that, although the record is somewhat unclear, Lusk indeed had not exhausted his peremptory challenges. See Young v. State, 85 Fla. 348, 96 So. 381 (1923). Furthermore, a review of the jury selection transcript discloses no sitting juror who appears unqualified and who should have been excused. No proof has been submitted by Lusk that casts any doubt on the conclusion that Lusk was convicted by a fair and impartial jury.

The third issue raised by Lusk is that the trial court erred when it instructed the jury that other prejudicial evidence was available for use against the defendant. Prior to the introduction of Lusk's confession, the court instructed the jury that the actual tape of the statement was not going to be introduced, only certain portions of the tape transcript. During that instruction, the court said:

The Court wishes to advise the jury that while the tape of this interview is available, there are some portions of the tape involving statements attributed to the defendant that do not relate to these proceedings and their use during the course of this trial before the jury may be prejudicial to the defendant. The Court does not wish such prejudicial matters to be presented to and considered during the course of this trial by the jury, and for that reason the tape will not be admitted into evidence nor used during the course of these proceedings. But, the transcript itself will be and is now declared to be admissible and you may proceed.

Lusk argues that the above remarks were a comment on the evidence which fundamentally destroyed his right to a fair trial.

Defense counsel, however, did not object to the above remarks. Had there been an objection, the jury could have been given curative instructions to disregard any inferences that could be drawn from said remarks. Because of a lack of an objection we must hold that the issue was not preserved for appeal and thus is not properly before this Court. Collins v. Farley, 147 So.2d 593 (Fla. 3d DCA 1962). Even if this issue were properly preserved, the trial court's remarks do not constitute grounds for reversal. Viewed in relationship to the totality of circumstances, the above comments clearly appear incidental within the scheme of the overall record. In addition, the comments were couched in qualifying terms. Also, if taken to its logical conclusion, the remarks certainly imply that the statements that were going to be presented to the jury were not prejudicial to Lusk. We hold, then, that the above comments by the trial court were not harmful error.

The fourth issue that Lusk raises is that the double jeopardy clause of the United States Constitution bars imposition of the death penalty by a trial court where the jury has made a life recommendation. Lusk bases his argument on Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). But the Missouri statute at issue in that case is not identical to Florida's death penalty statute, the major and crucial difference being the binding nature of the jury sentence in that state. As we recently said in Dobbert v. State, 409 So.2d 1053, 1058 (Fla.1982), "[b]ecause of the substantial differences between the sentencing procedures of Florida and Missouri, Bullington is clearly...