446 So.2d 1038 (Fla. 1984), 59146, Lusk v. State

Docket Nº:59146.
Citation:446 So.2d 1038
Party Name:Bobby Earl LUSK, Appellant, v. STATE of Florida, Appellee.
Attorney:Michael E. Allen, Public Defender; Michael M. Corin and Nancy A. Daniels, Assistant Public Defenders, Tallahassee, Florida, for Appellant.
Case Date:January 26, 1984
Court:Supreme Court of Florida

Page 1038

446 So.2d 1038 (Fla. 1984)

Bobby Earl LUSK, Appellant,


STATE of Florida, Appellee.

No. 59146.

Supreme Court of Florida.

January 26, 1984

Page 1039

Rehearing Denied April 10, 1984.

Page 1040

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.


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.

Page 1041

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...

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