Anderson v. State

• Citation: 574 So.2d 87,16 Fla. L. Weekly 61
• Decision Date: 03 January 1991
• Docket Number: No. 72127,72127
• Parties: 16 Fla. L. Weekly 61 Richard Harold ANDERSON, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 87

574 So.2d 87

16 Fla. L. Weekly 61

Richard Harold ANDERSON, Appellant, v. STATE of Florida, Appellee.

No. 72127.

Supreme Court of Florida.

Jan. 3, 1991.

Rehearing Denied Feb. 27, 1991.

James Marion Moorman, Public Defender and Paul C. Helm, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen. and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Richard Harold Anderson appeals his conviction for the first-degree murder of Robert Grantham and the ensuing sentence of death. ¹ We affirm.

Anderson's conviction rested primarily upon the trial testimony of his girlfriend, Connie Beasley. Beasley testified at trial that in 1987 Grantham had offered her $30,000 in exchange for her sexual favors. She rejected Grantham's offer but told Anderson of the proposal. Beasley testified that Anderson believed Grantham was rich and would return from a gambling trip to Las Vegas with a lot of money. Anderson told her to agree to spend one night with Grantham for $10,000. Anderson and Beasley prearranged for her to get Grantham drunk, after which Anderson would rob him. Beasley agreed to implement the plan by meeting Grantham on May 7, 1987, when he returned from Las Vegas. Following drinks and dinner, Beasley lured Grantham to Anderson's apartment. Anderson arrived later, ostensibly to return Beasley's car and to request a ride. Grantham agreed to drive Anderson, and Anderson insisted that Beasley join them. While in the car, Anderson shot Grantham four times and left Grantham's body in a wooded area. He then drove to the Tampa Airport, abandoned the car, and returned with Beasley to the apartment. He cut open Grantham's satchel and found $2,600.

The state also presented the testimony of two of Anderson's business acquaintances. David Barile testified that Anderson had told him the day after the murder that he had shot a man four times and dumped his body in the woods. Larry Moyer testified that Anderson had said on June 2, 1987, that he and his girlfriend "wasted a guy that was supposed to have a million dollars, and he only had $3,000." A firearms expert testified that four discharged .22-caliber cartridge casings found in Grantham's In the penalty phase, Scott Hopkins, an investigator for the state attorney, testified that he arrested Anderson in 1973 for the first-degree murder of a Clearwater resident and that Anderson pled guilty to the crime. On cross-examination, investigator Hopkins testified that an accomplice, not Anderson, was the actual perpetrator of that murder.

car had been fired from a pistol recovered from the Hillsborough River. Florida Department of Law Enforcement ("FDLE") agents recovered the pistol near the bridge where, according to Beasley, Anderson had thrown it.

Anderson refused to permit defense counsel to call any witnesses on his behalf during the penalty phase. Defense counsel merely introduced the information charging Beasley, Anderson's girlfriend, with third-degree murder, to show that Anderson was treated more harshly than Beasley. The jury recommended the death penalty by an eleven-to-one vote. The trial court found two aggravating circumstances, ² a single mitigating circumstance, ³ and imposed the death penalty.

GUILT PHASE

Anderson contends in his first point that the trial court erred when it failed to dismiss the indictment because the indictment was based upon Beasley's perjured testimony before the grand jury. During her trial testimony, Beasley admitted that her grand jury testimony differed from her trial testimony. When she appeared before the grand jury on July 15, 1987, she minimized her role in the killing and said that Grantham had been killed outside of her presence. She told the grand jury that Anderson and Grantham went for a ride while she remained in Anderson's apartment. When Anderson returned alone, he had blood all over the front of his shirt and on his hands, and his eyes were wild. She charged that Anderson admitted killing Grantham and threatened to kill her unless she helped him take Grantham's car to Tampa Airport.

After testifying before the grand jury, Beasley told a different story to FDLE agents. She told the agents on July 16 that Anderson walked into the apartment while Grantham was trying to rape her. Anderson pulled Grantham away, told her to get dressed, and forced Grantham into the car at gunpoint. Beasley also stated that she told agents that she saw Anderson shoot Grantham four times.

On July 24, Beasley negotiated a plea to third-degree murder with a maximum sentence of three years. Beasley told the prosecutor that she was present when Anderson shot and killed Grantham in accordance with a prearranged plan. She told the same story at trial. Anderson argues that because the state knew prior to trial that Beasley's grand jury testimony was perjured and did nothing to correct the testimony, the indictment should have been dismissed.

In Johnson v. State, 157 Fla. 685, 694, 27 So.2d 276, 281 (1946), cert. denied, 329 U.S. 799, 67 S.Ct. 491, 91 L.Ed. 683 (1947), this Court held that courts may not inquire into the sufficiency, legality, or character of evidence presented to a grand jury. Johnson addressed whether the trial court denied the defendant due process when it denied his motion to quash the information assertedly based on insufficient evidence. Until now Florida has not directly addressed the specific issues raised when the state presents false testimony to the grand jury or discovers prior to trial that the indictment upon which a defendant is to be tried is based upon perjured testimony. However, federal courts as well as other state courts have considered these questions.

In United States v. Basurto, 497 F.2d 781 (9th Cir.1974), the chief state witness notified the prosecuting attorney that all his grand jury testimony relating to the defendants, and upon which the indictment was based, was untrue. The prosecuting attorney informed opposing counsel of the perjured grand jury testimony. Nevertheless, the court of appeals reversed the defendants' convictions because the prosecutor failed to notify the trial court and the grand jury of this material perjured testimony. The Ninth Circuit Court of Appeals held that

the Due Process Clause of the Fifth Amendment is violated when a defendant has to stand trial on an indictment which the government knows is based partially on perjured testimony, when the perjured testimony is material, and when jeopardy has not attached. Whenever the prosecutor learns of any perjury committed before the grand jury, he is under a duty to immediately inform the court and opposing counsel--and, if the perjury may be material, also the grand jury--in order that appropriate action may be taken.

Id. at 785-86. See also Fla.R. Regulating Fla. Bar 4-3.3(a) ("A lawyer shall not knowingly: ... (4) Offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.").

Likewise, in People v. Pelchat, 62 N.Y.2d 97, 464 N.E.2d 447, 476 N.Y.S.2d 79 (1984), the Court of Appeals reversed the defendant's conviction even though it was based upon his guilty plea. The only evidence linking Pelchat to the crime was the grand jury testimony of a police officer who admitted to a prosecutor before the plea that he had been mistaken and the testimony was untrue. Under the circumstances, the court held that the prosecutor was duty bound to disclose the admission to the court and seek its permission to reindict the defendant. Id. at 106, 464 N.E.2d at 452, 476 N.Y.S.2d at 84. See also Escobar v. Superior Court, 155 Ariz. 298, 301, 746 P.2d 39, 42 (App.1987) (prosecutor in child abuse case was aware that material testimony of police detective was erroneous concerning the nature, extent, and severity of burns inflicted on child and the prosecutor should have informed the court and grand jury); State v. Reese, 91 N.M. 76, 79, 570 P.2d 614, 617 (Ct.App.1977) (defendant's conviction reversed because prosecutor knowingly presented to a grand jury an officer's false testimony relating to question of defendant's constructive possession of the drugs he was charged with possessing).

We agree with the authorities cited by Anderson that due process is violated if a prosecutor permits a defendant to be tried upon an indictment which he or she knows is based on perjured, material testimony without informing the court, opposing counsel, and the grand jury. This policy is predicated on the belief that deliberate deception of the court and jury by the presentation of evidence known by the prosecutor to be false "involve[s] a corruption of the truth-seeking function of the trial process," United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342 (1976), and is "incompatible with 'rudimentary demands of justice.' " Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 765, 31 L.Ed.2d 104 (1972) (citation omitted). Moreover, deliberate deception is inconsistent with any principle implicit in "any concept of ordered liberty," Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959), and with the ethical obligation of the prosecutor to respect the independent status of the grand jury. Standards For Criminal Justice § 3-3.5, 3-48--3-49 (2d ed.1980); United States v. Hogan, 712 F.2d 757, 759-60 (2d Cir.1983); Pelchat, 62 N.Y.2d at 108-09, 464 N.E.2d at 453, 476 N.Y.S.2d at 85 (the "cardinal purpose" of the grand jury is to shield the defendant against prosecutorial excesses and the protection is destroyed if the prosecution may proceed upon an empty indictment).

The Florida Constitution provides that "[n]o person shall be deprived of life, liberty or property without due process of law." Art. I, § 9, Fla. Const. The state violates that section when it requires a However, this principle is unavailing in...