Amazon v. State
| Decision Date | 13 March 1986 |
| Docket Number | No. 64117,64117 |
| Citation | 11 Fla. L. Weekly 105,487 So.2d 8 |
| Parties | 11 Fla. L. Weekly 105 Ira Martin AMAZON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
James Marion Moorman, Public Defender, and W.C. McLain, Asst. Public Defender, Chief, Capital Appeals, Tenth Judicial Circuit, Bartow, for appellant.
Jim Smith, Atty. Gen., and James H. Dysart, Asst. Atty. Gen., Tampa, for appellee.
We review Ira Amazon's convictions and sentences to death for the murders of a mother and daughter. Jurisdiction is mandatory pursuant to article V, section 3(b)(1), Florida Constitution. We affirm the convictions, but vacate the sentences and remand with directions.
Neighbors found Joy Chapin and her eleven-year-old daughter, Jennifer, dying from multiple stab wounds in their Pinellas County home early in the morning of December 1, 1981. A neighbor had been alerted when she received a telephone call from Jennifer, interrupted by screams. Jennifer was found lying next to the telephone, her mother was found downstairs.
Amazon, who lived next door to the Chapins, was among the crowd watching the subsequent police investigation. He concocted a burglary of his own home, either before or after the murders, and went to A grand jury indicted Amazon on two counts of first-degree murder. The same day as the indictments, the state filed an information charging burglary and sexual battery. Before trial, Amazon pleaded guilty to the burglary and sexual battery charges then moved to dismiss the murder charges on double jeopardy grounds. The trial judge denied the motion, and the district court declined to review the order, without prejudice to raise the issue on appeal. Amazon was convicted of first-degree murder on both counts. The jury recommended life sentences, but the trial judge overrode the recommendation and sentenced Amazon to death.
police with an exculpatory story, i.e. there had been two homes entered that night. Twelve hours later, he was arrested after his fingerprints were matched to those found on a window screen pried off the Chapin's window to gain entry. Other circumstantial evidence also linked him to the murders. At first denying the crimes, Amazon eventually confessed to detectives.
Amazon first challenges his prosecution for felony murder after he was subjected to jeopardy for the underlying crimes of burglary and sexual battery. The prosecution proceeded under both premeditated and felony first degree murder theories, and the jury was instructed accordingly. The verdict form did not specify upon which theory the jury based its finding of guilt.
Amazon's double jeopardy claim fails. In State v. Enmund, 476 So.2d 165 (Fla.1985), we held that a felony underlying a felony murder charge is not the "same offense" for purposes of double jeopardy, and therefore a separate conviction and sentence may be had for the underlying felony. Serial prosecutions are permissible for crimes which are not the "same offense" under the rule of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). In Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), the Supreme Court held that a prior conviction for failure to reduce speed to avoid collision did not bar, on double jeopardy grounds, a subsequent prosecution for manslaughter arising from the same criminal episode. The Court held that this was so, even though the prosecution for manslaughter might entail proof of all the elements of failure to reduce speed to avoid collision, so long as the lesser offense was not the "same" under Blockburger. The Court distinguished the case from Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), wherein conviction for a prior lesser offense which was the "same" under Blockburger barred a subsequent prosecution on the greater offense.
In the case sub judice, the underlying felonies are not the "same" under Blockburger, and the state would not be barred from serial prosecutions of the underlying felonies and the felony murders. If serial prosecution is permitted, which raises more serious double jeopardy considerations than here, then there is no double jeopardy bar to accepting the guilty pleas to the underlying felonies and withholding adjudication and sentencing until the felony murder charges have been resolved, as was done here.
Amazon next challenges his absence from the jury view of the crime scene. He argues that he was unaware that testimony would be presented during the view (explanations by investigators of what they found and where they found it), and that it was fundamental error for the trial court to accept the waiver by his attorneys rather than to conduct a hearing to determine whether Amazon knowingly and voluntarily waived his presence. Following oral argument before this Court, we relinquished jurisdiction of the case for an evidentiary hearing on the circumstances surrounding the waiver. The trial judge concluded that Amazon "knowingly and intelligently" waived his presence.
A capital defendant is free to waive his presence at a crucial stage of the trial. Peede v. State, 474 So.2d 808 (Fla.1985). Waiver must be knowing, intelligent, and voluntary. Francis v. State, 413 So.2d 1175 (Fla.1982). Counsel may make the waiver on behalf of a client, provided that the client, subsequent to the waiver, ratifies the waiver either by examination by the trial judge, or by acquiescence to the waiver with actual or constructive knowledge of the waiver. See State v. Melendez, 244 So.2d 137 (Fla.1971). Here, trial counsel clearly waived Amazon's presence knowingly, intelligently and voluntarily. Amazon knew of the waiver, because he had been consulted by his attorneys on the point and advised to waive his presence. He authorized his attorneys to make the waiver. His authorization was knowing and intelligent and as voluntary as any decision made by a client who relies upon and accepts advice of counsel. Amazon subsequently acquiesced to the waiver, with actual notice, and now cannot be heard to complain. 1
Amazon next urges that certain conduct of the jurors requires reversal. After the trial was finished, the trial judge learned of violations of the sequestration rules and conducted a special hearing. Amazon urges that the burden is on the state to refute a presumption of prejudice raised whenever juror misconduct is shown. However, that is not the rule in Florida, as one of the cases cited by Amazon explains:
If the [misconduct is] such that [it] would probably influence the jury, and the evidence in the cause is conflicting, the onus is not on the accused to show he was prejudiced for the law presumes he was. But it should be clearly understood that not all [misconduct] will vitiate a verdict, even though such conduct may be improper. It is necessary either to show that prejudice resulted or that the [misconduct was] of such character as to raise a presumption of prejudice.
Russ v. State, 95 So.2d 594, 600-01 (Fla.1957). The United States Supreme Court has said:
In a criminal case, any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial.... The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.
Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954). In other words, potentially harmful misconduct is presumptively prejudicial, but the defendant has the initial burden of establishing a prima facie case that the conduct is potentially prejudicial.
The record in this case shows that three jurors went to the bar in the motel where the jury was sequestered on the evening after the guilty verdicts but before the sentencing phase of the trial. Clearly no prejudice could have resulted since the jury recommended life. One of the same jurors was seen in the bar one evening during the guilt phase of the trial. The record fails to show a prima facie case that any potentially prejudicial communication occurred during this visit. Another of the same jurors, an alternate, had dinner at the motel with his fiance, but the case was not discussed. Again, no prima facie potential prejudice is shown.
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