Barwick v. State
| Decision Date | 20 July 1995 |
| Docket Number | No. 80446,80446 |
| Citation | 660 So.2d 685 |
| Parties | 20 Fla. L. Weekly S405 Darryl BARWICK, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Nancy A. Daniels, Public Defender, and W.C. McLain, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Richard B. Martell, Chief, Capital Appeals, Tallahassee, for appellee.
Darryl Barwick appeals his convictions for first-degree murder, armed burglary, attempted sexual battery, and armed robbery, and his respective sentences including his sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution, and we affirm both the convictions and sentences.
On the morning of March 31, 1986, Michael Ann Wendt left her apartment in Panama City to travel to Fort Walton Beach. Rebecca Wendt, Michael Ann's sister and roommate, remained at the apartment complex and lay outside sunbathing until approximately 11:45 a.m. Another resident of the complex who was also outside sunbathing observed a man walking around the complex at about 12:30 p.m. The witness indicated that she saw the man walk toward the Wendts' apartment and later walk from the Wendts' apartment into the woods. She subsequently identified that man as Darryl Barwick.
On the evening of March 31, Michael Ann returned to the apartment and found Rebecca's body in the bathroom wrapped in a comforter. 1 Investigators called to the scene observed bloody footprints at various places throughout the apartment and bloody fingerprints on the victim's purse and wallet. Rebecca's bathing suit had been displaced, and she had been stabbed numerous times. An autopsy revealed that she sustained thirty-seven stab wounds on her upper body as well as a number of defensive wounds on her hands. The medical examiner concluded that the potentially life-threatening wounds were those to the neck, chest, and abdomen and that death would have occurred within three to ten minutes of the first stab wound. The examiner found no evidence of sexual contact with the victim, but a crime laboratory analyst found a semen stain on the comforter wrapped around the victim's body. After conducting tests on the semen and Barwick's blood, the analyst determined that Barwick was within two percent of the population who could have left the stain.
When initially questioned by investigators, Barwick denied any involvement in Rebecca's murder. However, following his arrest on April 15, 1986, he confessed to committing the crime. He said that after observing Rebecca sunbathing, he returned to his home, parked his car, got a knife from his house, and walked back to the apartment complex where he had previously observed Rebecca. After walking past her three times, he followed her into her apartment. Barwick claimed he only intended to steal something, but when Rebecca resisted, he lost control and stabbed her. According to Barwick, he continued to stab Rebecca as the two struggled and fell to the floor.
Barwick was indicted for first-degree murder, armed burglary, attempted sexual battery, and armed robbery. He was found guilty as charged and sentenced to death. On appeal, this Court found a violation of State v. Neil, 457 So.2d 481 (Fla.1984), reversed Barwick's convictions, and remanded for a new trial. Barwick v. State, 547 So.2d 612 (Fla.1989).
A new attorney was appointed to represent Barwick. The retrial was assigned to Judge Clinton E. Foster, after Judge W. Fred Turner, the judge initially assigned to the case, retired and a second judge assigned to the case recused himself. Barwick moved to disqualify Judge Foster claiming that the judge's conduct and statements indicated he had prejudged psychological issues critical to the defense and that the judge's concern for county finances had hindered Barwick in preparing his defense. Judge Foster denied the motion as well as a subsequent motion to disqualify.
Counsel for Barwick was again substituted on February 5, 1992. Barwick proceeded to trial on June 22, 1992, but shortly thereafter, a mistrial was declared. A new trial commenced on July 6, 1992. At the conclusion of this trial, the jury found Barwick guilty as charged and unanimously recommended a sentence of death. Judge Foster followed the jury's recommendation, sentencing Barwick to death for murder in the first degree. He also sentenced Barwick to life for armed burglary with a battery, thirty years for attempted sexual battery, and life for armed robbery.
In support of the death sentence, Judge Foster found six aggravators: (1) previous convictions for the violent felonies of sexual battery with force likely to cause death or great bodily harm and burglary of a dwelling with an assault; 2 (2) the murder was committed during an attempted sexual battery; 3 (3) the murder was committed to avoid arrest; 4 (4) the murder was committed for pecuniary gain; 5 (5) the murder was especially heinous, atrocious, or cruel; 6 and (6) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral justification. 7 In its sentencing order, the court set out the statutory mitigating circumstances proposed by the defense but found that each potential mitigator was either not established by the evidence or was not a significant mitigating circumstance. With regard to nonstatutory mitigating circumstances, the court recognized that Barwick suffered abuse as a child and considered expert testimony indicating that Barwick had some mental deficiencies, but determined that these were not mitigating circumstances in this case.
Barwick raises five issues relating to the guilt phase of his trial 8 and nine issues relating to the penalty phase. 9 We find that only six of these issues merit full discussion. 10
We first address Barwick's claim that his initial motion to disqualify was legally sufficient and, thus, should have been granted. On June 5, 1991, Judge Foster held a hearing on Barwick's motion. After reviewing the allegations as well as the affidavit of Barwick's attorney filed in support of the motion, Judge Foster determined that the motion was not legally sufficient to form a basis for disqualification and, thus, entered an order denying it on June 6, 1991.
On June 11, 1991, while a second motion for disqualification filed by Barwick was pending, Barwick filed a petition for writ of prohibition asking this Court to prevent Judge Foster from hearing his case. We denied the petition on June 14, 1991, without requesting a response. The State contends that this denial of Barwick's petition should be read as a merits ruling on Barwick's claim that the trial court erred in denying his initial motion to disqualify. In support of its position, the State relies on Obanion v. State, 496 So.2d 977 (Fla. 3d DCA 1986), review denied, 504 So.2d 768 (Fla.1987), and Justice Anstead's concurring opinion in DeGennaro v. Janie Dean Chevrolet, Inc., 600 So.2d 44 (Fla. 4th DCA 1992), which recognize that a denial of a petition for writ of prohibition in those districts should henceforth constitute a ruling on the merits unless otherwise indicated. Prior to these decisions, the Fourth and Third Districts, like other districts, agreed that a denial of a writ of prohibition without an opinion would not serve as the "law of the case" unless it was affirmatively established that the denial was on the merits or a merits determination was the sole possible grounds for denial. See Cappetta v. State, 471 So.2d 1290 (Fla. 3d DCA), review denied, 480 So.2d 1296 (Fla.1985); Fyman v. State, 450 So.2d 1250 (Fla. 2d DCA 1984); Thomas v. State, 422 So.2d 93 (Fla. 2d DCA 1982); Public Employees Relations Comm'n v. District School Bd. of DeSoto County, 374 So.2d 1005 (Fla. 2d DCA 1979), cert. denied, 383 So.2d 1193 (Fla.1980).
We approve of the procedure adopted by the Third District in Obanion and advocated by Justice Anstead's concurring opinion in DeGennaro as to the effect of the denial of a petition for writ of prohibition in those district courts, but we do not agree that our denial of the prohibition petition in this particular case was a decision on the merits. The order issued by this Court did not indicate on what grounds the petition was denied. Nor has this Court clearly expressed an intention to have a denial of a petition for writ of prohibition, without more, serve as a ruling on the merits. In light of the differing approaches taken by the district courts, however, we recognize a need to clarify the effect of this Court's denial of a prohibition petition. We hold that from this time forward, if an order from this Court denying a petition for a writ of prohibition based upon an unsuccessful motion for disqualification is to constitute a decision on the merits and, thereby, foreclose further review of the disqualification issue on direct appeal, the order will state that it is "with prejudice."
Because we find that review of Barwick's motion is not foreclosed by our order denying a petition for writ of prohibition, we next consider the merits of Barwick's claim that the trial judge's denial of the motion to disqualify was error. We reject this claim because we agree that the motion was not legally sufficient. A motion is legally sufficient if it shows that the party making the motion has a well-grounded fear that he or she will not receive a fair trial from the presiding judge. Dragovich v. State, 492 So.2d 350, 352 (Fla.1986); Tafero v. State, 403 So.2d 355, 361 (Fla.1981), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 694 (1982); State ex rel. Brown v. Dewell, 131 Fla. 566, 573, 179 So. 695, 697 (1938). In his brief, Barwick summarized the allegations raised in his June 5, 1991, motion for disqualification as follows:
1. Judge Foster, on his own motion, rescinded previously entered orders granting the defense an investigator and mental health experts to aid in...
To continue reading
Request your trial
-
Thompson v. State
...party making the motion has a well-grounded fear that he or she will not receive a fair trial from the presiding judge." Barwick v. State, 660 So.2d 685, 691 (Fla.1995). However, the fact that a judge has ruled adversely to the party in the past does not constitute a legally sufficient grou......
-
Sochor v. State
...The court later held more public records hearings with both sides present. We rejected a claim similar to Sochor's in Barwick v. State, 660 So.2d 685 (Fla.1995). Barwick filed a motion to disqualify, alleging that the judge had denied his motion to appoint a psychiatrist "after an ex parte ......
-
Morrison v. State
...cut his own throat." Such a comment directing the jury to consider the evidence presented is not impermissible. See Barwick v. State, 660 So.2d 685, 694 (Fla.1995). Moreover, the prosecutor's second remark, i.e., that the prosecutor had not yet "heard the defense in this case," was true, as......
-
Looney v. State
...the actions of the defendants during the night of the murder was supplied by Dempsey's direct testimony. 28. Looney cites Barwick v. State, 660 So.2d 685 (Fla.1995), where this Court concluded that "the evidence presented does not demonstrate that Barwick had a careful plan or prearranged d......