Allen v. State

• Decision Date: 20 July 1995
• Docket Number: No. 81639,81639
• Citation: 662 So.2d 323
• Parties: 20 Fla. L. Weekly S397 Lloyd Chase ALLEN, Appellant, Cross-Appellee, v. STATE of Florida, Appellee, Cross-Appellant.
• Court: Florida Supreme Court

Page 323

662 So.2d 323

20 Fla. L. Weekly S397

Lloyd Chase ALLEN, Appellant, Cross-Appellee, v. STATE of Florida, Appellee, Cross-Appellant.

No. 81639.

Supreme Court of Florida.

July 20, 1995.

Rehearing Denied Nov. 1, 1995.

Bennett H. Brummer, Public Defender and Valerie Jonas, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for appellant, cross-appellee.

Robert A. Butterworth, Atty. Gen., and Randall Sutton, Asst. Atty. Gen., Miami, for appellee, cross-appellant.

PER CURIAM.

Lloyd Chase Allen, a prisoner under sentence of death, appeals his convictions for grand theft of an automobile and first-degree murder and the attendant sentences. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. For the reasons expressed below, we affirm both the convictions and the sentences imposed.

Allen was indicted for the first-degree murder of Dortha Cribbs in Summerland Key, Florida, on November 13, 1991. He was also charged with kidnapping, robbery with a deadly weapon, grand theft, and grand theft of an automobile.

Cribbs left her home in Ohio to drive to Florida in November 1991. She apparently met Allen at a truck stop in Atlanta. Allen accompanied Cribbs during her visit with friends in Jacksonville Beach and during a stop in Bunnell to sell her trailer.

Allen, whom Cribbs introduced as "Lee Brock," told Cribbs' friends in Jacksonville Beach and Bunnell that he owned a ranch in Texas and a trucking rig. Cribbs told the friends that she was going into the trucking business with Allen after she sold her trailer in Bunnell and vacation home in Summerland Key. Cribbs was paid $4100 in hundred dollar bills for the trailer. Allen witnessed this transaction on November 12. The friends in both locations stated that Cribbs was wearing a diamond-studded horseshoe-shaped ring, which was valued at $8,000.

A man working at the house across the street from Cribbs' Summerland Key house saw her exit and re-enter the house early on the morning of November 13. He also observed Allen exit and re-enter the house around 11 a.m. The worker left for lunch at 11:45 a.m. When he returned a little after 1 p.m., the worker noticed that Cribbs' 1988 Ford Taurus was gone.

The real estate agent who managed Cribbs' property arrived between 12:30 and 1 p.m. to investigate Cribbs' unexpected arrival at the house. When no one responded to his knocks, the agent used his own key to enter the house. The television set, which was on high volume, was emitting loud static and a snowy picture. The coffee pot was turned on and half-full. The agent discovered Cribbs' body on the floor of the master bedroom. She was lying face down on a pillow and her body was surrounded by a puddle of blood.

The medical examiner placed the time of death between 4 a.m. and 2 p.m. on November 13. There were two stab wounds to the right side of Cribbs' face, ligature marks on her wrists and ankles, and a stab wound to her left neck that severed the carotid artery. The angle of the neck wound indicated that it was inflicted as Cribbs lay face down. The left stab wound caused Cribbs to bleed to death. The medical examiner estimated that Cribbs lived for fifteen to thirty minutes after this wound was inflicted and was conscious for fifteen minutes. Based upon the lack of defensive wounds and blood splatter, the medical examiner opined that Cribbs was bound at the time that she was stabbed.

The following items were recovered from the scene: a suitcase containing a blue shirt and a camera loaded with undeveloped film depicting Allen; a pair of grey lizard skin boots; a pair of blue jeans containing a blood stain on the right knee, found at the foot of the bed; a sperm-stained hand towel, found by the side of the bed; a piece of window sash cord found under Cribbs' left arm consistent with the ligature marks and also consistent with a cord that had been cut in the spare bedroom; and a sheathed knife and a rag found in the spare bedroom. The contents of Cribbs' purse were scattered across the bed; the $4100 and diamond ring were missing. There were no signs of forcible entry and no fingerprints of value were found. The interior of the house and its contents appeared to have been wiped clean with a damp rag.

Expert witnesses testified that the body fluids found on the hand towel were consistent with Cribbs' and Allen's blood types and DNA genotypes; the blood on the jeans was consistent with Cribbs' blood. The suitcase, boots, and shirt recovered from the scene were identified by witnesses as items that Allen had or wore in Jacksonville Beach and Bunnell. Pursuant to the State's motion granted by the court, Allen tried on these items of clothing, which, with the exception of the jeans, fit him. Allen's inability to fit into the jeans was explained by a considerable weight gain following his arrest.

A taxi driver testified that he picked up Allen at the Buccaneer Lodge Tiki Lounge between 12:30 and 12:45 p.m. on November 13, that he took Allen to Key Largo, and that Allen paid the eighty-dollar fare with a hundred-dollar bill. Cribbs' automobile was located in the parking lot of the Buccaneer Lodge on December 23. The car was covered with debris, indicating that it had been parked there for some time. Allen's prints were lifted from the car. A trucker's log book containing a credit card number and a sequence of telephone numbers led the police to Allen's location in California, where he was arrested on February 18, 1992.

At the close of all evidence, the trial court entered a judgment of acquittal for robbery of the cash and for theft of the ring. The court found insufficient evidence that force was employed in connection with any taking and insufficient evidence that Allen had taken the ring. Allen also informed the court that he wished to proceed pro se during the penalty phase, if one was necessary. The jury found Allen guilty of first-degree murder and grand theft of an automobile, but not guilty of kidnapping.

After the verdict was announced, defense counsel moved to withdraw from representation during the penalty phase. Counsel informed the court that Allen wanted to waive presentation of mitigating evidence and to affirmatively argue for imposition of the death penalty. Defense counsel explained that he was uncomfortable advocating this position and that Allen was competent to represent himself. The court conducted a Faretta ¹ inquiry and concluded that Allen knowingly and voluntarily waived his right to counsel and was competent to represent himself. The court ordered Allen's defense attorney to remain present in a stand-by counsel status. The court also ordered an examination for psychological competency pursuant to Florida Rule of Criminal Procedure 3.210. At the subsequent competency hearing, two mental health experts testified that Allen satisfied all six items of competency under Florida Rule of Criminal Procedure 3.211 ² and was competent to proceed to the penalty phase. The court found Allen competent to represent himself in the penalty phase.

In his closing argument to the jury, Allen expressly denied the existence of mitigating evidence and specifically denied that he was abused in childhood or that he suffered from alcoholism or drug abuse. While Allen asserted his factual innocence of murder, he also urged the jury to vote for death because he felt responsible and remorseful for Cribbs' death. Allen theorized that Cribbs had been murdered by an unnamed associate that he had summoned to assist with house repairs and whom he had told that Cribbs carried a large sum of cash in her purse. Allen also stated that he preferred death to life in prison. The jury recommended death by a vote of eleven to one.

The court followed the jury's recommendation and imposed a sentence of death, and also sentenced Allen to five years for grand theft of an automobile. The court found three aggravating factors: the murder was committed while under a sentence of imprisonment based upon Allen's escape from a work release program in Kansas; the murder was committed for pecuniary gain based upon Allen's statements, the contents of the purse scattered across the bed, and the theft of the automobile; and the murder was especially heinous, atrocious, or cruel based upon the medical examiner's testimony that it took fifteen to thirty minutes for death to occur and that Cribbs would have been conscious for fifteen minutes after being stabbed. Secs. 921.141(5)(a), (f), (h), Fla.Stat. (1991). The court also found two nonstatutory mitigators that were not argued but were contained within the record: Allen's family background and his military service in Vietnam. The court also stated that it did not consider Allen's request for the death sentence in imposing the sentence.

On appeal, Allen raises six issues as error: 1) the admission of a photograph and victim impact testimony, and prosecutorial argument thereon; 2) the waiver of the presentation of mitigation evidence without meeting the requirements of Koon v. Dugger, 619 So.2d 246 (Fla.1993); 3) Allen's unsworn and unsupported denials of applicable mitigating factors in argument to the jury during the penalty phase; 4) application of the pecuniary gain aggravating factor; 5) application of the heinous, atrocious, or cruel (HAC) aggravating factor; and 6) prosecutorial argument of a nonstatutory aggravating factor during the penalty phase. On cross-appeal, the State argues that the mitigating circumstances found by the court are not supported by the record and are refuted by the evidence.

Allen raises only one issue regarding the guilt phase of the proceedings. He contends that the court erred in admitting a photograph of Cribbs in which one of her grandchildren is seated on her lap. The photograph in question was admitted to depict the distinctive diamond ring that Cribbs wore. That ring was the basis for the grand theft charge against Allen. The test for the admissibility of a...