Amos v. State, 76061

• Decision Date: 18 March 1993
• Docket Number: No. 76061,76061
• Citation: 618 So.2d 157
• Parties: 18 Fla. L. Weekly S163 Vernon AMOS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 157

618 So.2d 157

18 Fla. L. Weekly S163

Vernon AMOS, Appellant, v. STATE of Florida, Appellee.

No. 76061.

Supreme Court of Florida.

March 18, 1993.

Rehearing Denied June 1, 1993.

Bert Winkler, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen. and Kellie A. Nielan, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Vernon Amos appeals his convictions of two counts of first-degree murder, an attempted first-degree murder, four counts of robbery with a firearm, and one count of aggravated assault with a firearm, and his sentences, including a sentence of death for one of the murders. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const. This case has had an extensive and tortuous history. Amos has been involved in four separate trials. During this case's history, Amos has had different counsel and has also appeared pro se. The convictions and sentences of both Amos and his codefendant, Leonard Spencer, were initially reversed by this Court in Amos v. State, 545 So.2d 1352 (Fla.1989), and Spencer v. State, 545 So.2d 1352 (Fla.1989), because of the restrictive means utilized in selecting the petit jury for those trials. In October, 1989, a second trial was held for both defendants and resulted in a hung jury. A third trial commenced in November, 1989, at which Spencer was convicted of all counts. The third trial resulted in a hung jury as to Amos. Amos's fourth trial commenced in January of 1990 and is the subject of this appeal.

We find that, due to the multiple errors that occurred during the guilt phase of this trial, we must once again reverse Amos's The relevant facts reflect that, on June 12, 1986, two men entered a Mr. Grocer store in West Palm Beach. The taller of the two men grabbed a customer, held a gun to his side, and ordered the customer to lie face down on the floor. The evidence established that the taller of the two men was Spencer, while the shorter man was Amos. As the customer was lying on the floor, a shot was fired, killing the store clerk. The customer also heard one of the men say, "Open the cash register." The customer was not certain which of the men made the statement. At no point did the customer see the smaller of the two men with a weapon. One of the men went over to the customer and demanded the keys to his car and his wallet. One of the men then shot the customer in each arm. Another witness, who was outside the store, observed the two men get into a yellow Ford automobile, with the shorter man entering on the driver's side and the taller man entering on the passenger's side.

convictions and order a new trial. Although some of the errors might be considered harmless when considered independently, we find that, when considered collectively, these errors cannot be found to be harmless beyond a reasonable doubt.

The second incident occurred a short time later outside a bar located approximately one mile from the Mr. Grocer. A witness testified that, as the car in which he was riding pulled into the bar parking lot, he observed one tall black male and one white male fighting by a pickup truck over something in their hands. He stated that a short black male was standing on the other side of the truck. The witness testified that, after the shorter man grabbed the white male around the face, a shot was fired and the white male fell forward. That victim, later identified as Robert Bragman, was shot in the head and later died. The taller of the two men entered the truck on the driver's side while the other entered the passenger's side. The witness could not positively identify either of the black men and never actually saw either man with a gun.

A second witness was driving down the street when he heard a description of the two men over his police scanner. He then saw two men fitting the descriptions walking down the street near the scene of the second shooting. The taller man approached the witness's vehicle and forced the witness to exit the vehicle at gunpoint. This witness testified that the smaller man remained at the front of the car. Both men then got into the witness's car and started to drive away. The men then stopped the car, switched seats, and proceeded to drive away.

After being pursued by law enforcement officers for two hours, Amos was located in a junk yard and was arrested. Amos was interviewed and gave a lengthy statement, only a portion of which was tape-recorded. During the course of the statement, Amos admitted that he was present at the two incidents but denied shooting the victims. Because of promises made to Amos, the State did not use his statements in its case in chief but did present the tape in rebuttal to Amos's testimony in his own behalf. Furthermore, the prosecution did not present any direct evidence that Amos possessed the weapon used to kill Bragman. The prosecution presented the testimony of the medical examiner, who stated that the shot that killed Bragman could not have been fired by a person in Spencer's position at the time of the incident. The medical examiner testified that the fatal bullet could only have been fired by a person in Amos's position, given Spencer's and Amos's positions at the time the weapon was fired. In support of this testimony, the State introduced a composite of the autopsy photographs.

The defense presented the testimony of another eyewitness to the Bragman killing, who confirmed the positions of both Spencer and Amos during their struggle with Bragman. However, this witness testified that the taller of the two men (Spencer) appeared to throw something into Bragman's truck as they were attempting to leave the scene, the inference being that it was Spencer who shot the second victim. This witness also stated that he never actually saw a weapon and that the taller man's Amos took the stand and testified that he never saw Spencer or Edward Caine, a friend of Spencer's who traveled with them from Belle Glade to West Palm Beach, with a weapon prior to arriving at the Mr. Grocer. ¹ Amos testified that, as he entered the Mr. Grocer to buy cigarettes, Spencer followed him in and, as he was purchasing the cigarettes, Spencer grabbed the customer, Terry Howard, and shot the store clerk, Allen McAninch; that Spencer then ordered Amos to open the cash register and then shot Terry Howard; that Amos followed Spencer out of the store and did exactly what Spencer told him to do out of fear for his life. Amos also described how Spencer killed the second victim.

motion may have been made in an effort to get into the truck.

At the end of Amos's testimony, over the defense's objection, the prosecution requested that the court take a lunch recess. Simultaneously, the prosecutor requested that the court remind Amos that he "cannot talk to his attorney." The prosecutor stated that she was "concerned [that] Vernon will approach Craig [appellant's counsel] on his own." The court agreed with the State and stated that Amos could not confer with his counsel during the recess.

During the prosecution's cross-examination, the State asked Amos if he had had an opportunity to make another statement on tape and if the investigators had given him the opportunity to add to the taped statement at the time he made it. Amos answered that he had been given such an opportunity. In response, defense counsel, on redirect, attempted to have Amos explain that there were many hours that he spoke to the police that were not in fact on the tape. The State objected on the grounds that this line of questioning was beyond the scope of the cross-examination. The court sustained the objection.

The State, in rebuttal, called as a witness Edward Caine. Defense counsel moved to challenge Caine's competency to testify because of prior evidence that Caine could not "differentiate between reality" and requested a hearing to determine Caine's competency. The court denied the request for a hearing and overruled the defense's objection. Caine testified in rebuttal to Amos's statements that he was under duress and coerced by Spencer. Caine testified that Amos was involved in planning the robbery and was in possession of a firearm prior to the murders. The jury returned a verdict of guilty on all counts.

Subsequently, Amos filed a pro se motion for disqualification of the judge. Amos also moved to discharge his counsel on the ground that a conflict had arisen between them. The trial court denied the motion for disqualification but granted Amos's request to discharge his attorney. The trial court did not provide other counsel and the next day directed Amos to represent himself during the sentencing hearing. The trial court, in explaining the counsel situation to the jury, stated:

I have been asked to explain the absence of Mr. Boudreau, whom you will remember, who was Mr. Amos' attorney. Mr. Amos, in a hearing we held yesterday, indicated that he wanted to discharge Mr. Boudreau. Of course, he is aware that he is entitled to be represented by counsel, that counsel being Mr. Boudreau, who is ready, willing, and able to serve him. But he doesn't want Mr. Boudreau. And I cannot force it on him. So he is going to fly this airplane by himself. I think we caught him a little flat-footed. He has some depositions he needs to review that were delivered to him only this morning. So we are going to take a ten-minute recess. You folks get a cup of coffee, and we will be ready. And you will stay in here, and--Vernon, you read your depositions.

Amos advised the court that he could not put on any evidence without an attorney. Amos also rejected an opportunity to make argument to the jury, stating that he had not had sufficient time to prepare, had not read the depositions that he had received When the appellant appeared for sentencing, he again requested "conflict-free counsel." The request was denied and the trial judge sentenced Amos to life imprisonment with no possibility of parole for twenty-five years for the murder of the store clerk. The...