Moore v. State, 82925
| Citation | 701 So.2d 545 |
| Decision Date | 02 October 1997 |
| Docket Number | No. 82925,82925 |
| Parties | 22 Fla. L. Weekly S619 Thomas James MOORE, Appellant, v. STATE of Florida, Appellee. |
| Court | United States State Supreme Court of Florida |
Nancy Daniels, Public Defender, Second Judicial Circuit, Tallahassee; and Bill Salmon, Gainesville, for Appellant.
Robert A. Butterworth, Attorney General; and Gypsy Bailey and Mark S. Dunn, Assistant Attorneys General, Tallahassee, for Appellee.
We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Thomas James Moore. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm Moore's conviction and the sentence of death.
Moore was charged on February 18, 1993, with six counts: first-degree murder, attempted armed robbery, conspiracy to commit robbery, armed burglary, arson, and possession of a firearm by a convicted felon. The possession of a firearm count was not submitted to the jury. Moore was convicted of all remaining counts, and the jury recommended the death sentence.
As aggravation, the court found that Moore was previously convicted of the violent felonies of armed robbery and aggravated battery, committed the capital felony for the purpose of avoiding arrest, and committed the capital felony for pecuniary gain. In mitigation, the court gave Moore's age of 19 slight weight (he had been tried as an adult at age 15 for his prior armed robbery charge). Also, testimony as to Moore's character, offered as a nonstatutory mitigator, was given little value because the witnesses had little knowledge of Moore's criminal history. The judge followed the jury's recommendation and imposed the death penalty.
Moore was convicted of robbing and killing Johnny Parrish--an adult resident of his neighborhood--and burning down Parrish's house. The two were friends, and Moore occasionally visited Parrish's home. On January 21, 1993, at about 3 p.m., Moore sat outside Parrish's house drinking with the victim. Moore claims that two other youths, Clemons and Gaines, approached the house. Moore claimed he saw the pair chase a neighborhood youth named "Little Terry" with a gun earlier that day, but Clemons denied it at trial. Clemons and Gaines testified that they had a conversation with Moore about robbing Parrish. Clemons said he agreed to go in the house with Moore, and Gaines was to be the lookout. Gaines said he stood outside but did not see either man go in. He said he heard two shots and then saw Clemons come out of the house and go back in. When Gaines started to walk away, Clemons caught up with him and told him Moore had shot Parrish.
Clemons said that when he and Moore went into the house, Moore pulled out a gun. Moore asked Parrish where his money was and then shot him when he got no response. Later, neighbors saw smoke in Parrish's house and ran in and pulled out Parrish. Parrish was already dead when exposed to the fire, and a fire investigator, Captain Mattox, said that there were two separate fires in the house, both of which were intentionally set.
A witness named Shorter testified that Moore brought him a bag of clothes and asked him to burn them. Shorter also testified that Moore told him he had shot Parrish and set fire to the house. Shorter stated that Moore said he shot Parrish twice, that Clemons ran out of the house, and that Moore took the top off a lawn mower he found and set it on fire to clean the house of fingerprints. Shorter did not call the police but did call his mother, who called the police.
A jail inmate, Jackson, testified that Moore told him that he did not mean to kill Parrish but had to because Parrish would recognize him. Another neighbor, Dean, testified that Moore asked him to rob Parrish.
At the penalty phase, the State submitted evidence of Moore's prior convictions of armed robbery and aggravated battery. Also, the State called Parrish's daughter for "victim impact evidence" limited to the fact that Parrish was a good man. The defense called Moore's mother, who testified that Moore was a bright child who had been troubled because his father, who had died when Moore was young, was married to another woman. Other family and friends testified that Moore had been a good student and a polite young man.
Moore presents seven claims on appeal: (1) it was error to limit Moore's cross-examination of two State witnesses on crucial points of fact; (2) it was error to limit cross-examination of a third witness, refuse to hear a proffer, and deny a motion for mistrial; (3) it was error when the court made prejudicial remarks in the presence of the jury commenting on evidence and disparaging the defense, denying Moore due process; (4) it was error to admit a witness's testimony that Moore was in possession of a firearm two days after the victim's death; (5) it was error to admit a copy of codefendant Clemons' written statements to police into evidence; (6) it was error to admit victim impact evidence which did not comport with the section 921.141(7), Florida Statutes (1995); and (7) it was error to allow the State to use mitigation as nonstatutory aggravation during penalty phase closing arguments. We find all of Moore's claims except one to be without merit; one claim of error has merit but we find the error to be harmless. Additionally, we have conducted a review of the record and find competent and substantial evidence to support his conviction and sentence.
In issues one and two Moore argues that the trial court improperly limited his cross-examination of three defense witnesses: Gaines, Clemons, and Mattox. Moore's counsel was prohibited from asking Gaines whether he and Clemons had chased a boy named Little Terry while carrying a gun on the day the victim was killed. When counsel asked to make a proffer, the judge said:
....
The Court refused to allow the questions, stating:
Defense counsel was allowed to ask if Gaines went to the park with Clemons, if Gaines saw Clemons with a gun, and if Gaines saw Little Terry. Gaines answered "no" to all three questions.
When Clemons testified, defense counsel asked what he had done with the gun he possessed on the day of the murder. The judge sustained the State's objection, stating that there was no evidence that Clemons actually possessed a gun then. After Clemons denied possessing a gun that day, defense counsel asked a series of questions about Little Terry. Defense counsel then asked again whether or not Clemons was armed. The court sustained the State's objection, stating that the question was repetitive.
Captain Mattox, an arson investigator with the Jacksonville Fire Department, testified that there were no accelerants present in the fire set at Parrish's house. Defense counsel asked whether the department had access to the Office of the Florida Fire College Laboratories if there was some question as to whether flammable liquids had been used. After Mattox answered "yes," defense counsel asked if those laboratories had gas chromatography machines. The judge sustained the State's objection as to the relevance of the question. Defense counsel was prohibited from making a proffer of the question, and the court denied defense counsel's request for a mistrial.
Moore's claim that it was error to limit the cross-examination of these three witnesses is without merit. The United States Supreme Court has stated that "trial judges retain wide latitude ... to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986); see also State v. Ford, 626 So.2d 1338, 1347 (Fla.1993). Limitation of cross-examination is subject to an abuse of discretion standard. See, e.g., Geralds v. State, 674 So.2d 96, 100 (Fla.), cert. denied, --- U.S. ----, 117 S.Ct. 230, 136 L.Ed.2d 161 (1996); Jones v. State, 580 So.2d 143, 145 (Fla.1991). Here, the judge clearly spelled out his reasons for limiting the cross-examination: in each instance the questions were either repetitive or irrelevant. We find no abuse of discretion.
In issue three, Moore argues that the court improperly commented on the evidence and disparaged the defendant. In Jones v. State, 612 So.2d 1370 (Fla.1992), we made it clear that the contemporaneous objection rule applies to such comments. Id. at 1373. The comments here were not objected to at trial. However, we have reviewed the record and find that the statements now objected to by Moore, when viewed in context, did not constitute improper comment. The court was seeking to control the pace and conduct of the trial and only rebuked counsel for being repetitive. We have clearly held that trial courts also have broad discretion in the procedural conduct of trials. Rock v. State, 638 So.2d 933, 934 (Fla.1994). These comments did not constitute error.
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