Bassett v. State, 58803

• Citation: 449 So.2d 803
• Decision Date: 08 March 1984
• Docket Number: No. 58803,58803
• Parties: Theodore Augustus BASSETT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 803

449 So.2d 803

Theodore Augustus BASSETT, Appellant, v. STATE of Florida, Appellee.

No. 58803.

Supreme Court of Florida.

March 8, 1984.

Rehearing Denied May 24, 1984.

Richard R. Cook and Carmen F. Corrente, Daytona Beach, for appellant.

Jim Smith, Atty. Gen. and Edward M. Chew, Asst. Atty. Gen., Daytona Beach, for appellee.

ALDERMAN, Chief Justice.

Appellant appeals his two convictions of first-degree murder and his sentence of death. We affirm the convictions and death sentence.

On December 12 and 13, 1978, appellant's codefendant, John Cox, directed the Volusia County Sheriff's Department to the skeletal remains of two bodies. Cox confessed to the murders and implicated appellant.

At the time the bodies were discovered, the sheriff's department was holding appellant, apparently on an unrelated felony charge. The state advised the trial court that appellant had relevant information concerning the disappearance of the victims and that appellant was willing to talk to authorities if the court would provide counsel. Because the public defender represented codefendant Cox, the court appointed private counsel to represent appellant during any questioning and negotiations arising from the state's investigation into the victims' deaths. After the investigation was complete, the appointed attorney moved to be discharged, advising the court that he had fulfilled his appointed duties, and stated that the appellant was incarcerated for "a felony charge for which counsel has not been appointed and he will require [further] services of appointed counsel." The appointed attorney further advised the court that he would be out of state and suggested the public defender be appointed. The trial court granted the motion to discharge but did not immediately appoint new counsel.

The investigating officers approached appellant after counsel had withdrawn. They testified that they advised appellant of his Miranda rights and that he then asked to speak with his attorney. The officers informed him that his attorney had withdrawn but that they could contact another one for him. When the officers stood up to leave, appellant responded "Well, what do you want anyway?" The officers told appellant that Cox had implicated him and that they had recovered the bodies. This led to appellant's two-day confession. The officers continually gave appellant Miranda warnings and obtained a signed waiver of rights form each day.

Appellant's confession revealed the following. Appellant met the victims, James Boucher and Daryl Barber, both age eighteen, while walking on Daytona Beach. They had a bag of marijuana with them and were smoking a marijuana cigarette at the time. Appellant told the two boys that he knew of the party they were looking for and offered to take them there. The three drove in the boys' car first to the boys' motel room so one could change clothes, and then to a nearby fast-food restaurant to pick up codefendant Cox. Appellant and Cox schemed to steal the boys' marijuana and any money that they might have. After smoking a few marijuana cigarettes and stopping for gas, either appellant or Cox displayed a gun and directed the boys to drive down an isolated dirt road. After they took the remaining marijuana and the money, Cox determined that the boys would have to be killed to cover up the robbery. Appellant and Cox then marched their victims approximately a mile through an adjacent swamp. At some point, the victims were instructed to discard their shoes, and their hands were tied behind their backs with their belts. Later, Cox told the boys to lie down and both captors beat the victims with a rotten tree limb. Frustrated because the limb kept breaking, Cox knocked one boy in the face with the pistol butt, apparently fracturing his jaw. After the captors decided that the murders could not be accomplished there, Cox returned for the car. The victims were forced into the vehicle's trunk so that no one would see them or hear screams for help. Appellant and Cox then returned to the victims' motel room and removed all belongings to make it appear as if the occupants had checked out. With the boys still in the trunk for what must have been hours, the captors went to Cox's trailer to decide how they would commit the murder. Subsequently, they drove the vehicle down another isolated dirt road. One boy was removed from the trunk and forced to make the second endorsement on his travelers checks. With both victims again secure in the trunk and appellant keeping watch, Cox placed a piece of hose in the vehicle's exhaust pipe and stuffed a sponge around it to ensure against leakage. He forced the opposite end into the trunk. One boy apparently guessed what was happening and attempted to push the hose away. At that, Cox retrieved a knife from the car's interior and poked it into the trunk until the hose was freed. The trunk was then sealed with air conditioning tape and the engine started. Two hours later, the bodies were extricated and dumped into nearby bushes where they remained undiscovered for four months.

After the confession, indictments were returned and new counsel appointed for appellant. Thereafter, both appellant and Cox entered into a stipulation with the state which provided that the only issue in dispute was whether the state could prove corpus delicti sufficiently for the admission of defendants' confessions into evidence. The stipulation provided that if the trial judge found in a pretrial hearing that the corpus delicti could be established, appellant and Cox would enter pleas of nolo contendere to two counts of first-degree murder, conditional upon the trial court imposing concurrent life sentences on each count. The state also agreed to nol-pros all other counts in the indictment. Before the pretrial hearing, appellant withdrew from the stipulation and proceeded to trial. Cox proceeded under the agreement. The trial court found that corpus delicti could be established and, after receiving Cox's nolo plea, sentenced Cox to life imprisonment in accordance with the stipulation's terms.

At appellant's trial, two dentists qualified as experts positively identified the skeletons as their respective former patients, James Boucher and Daryl Barber. The state also presented an expert in forensic anthropology and medical archaeology who testified concerning the reconstruction of the skeletons and of the site where the remains were found. He related that one skeleton had a chip out of the skull frontal bone, a fractured jaw, and a rib broken into two pieces and opined that the injuries occurred at or about the time of death. He also testified that the bodies appeared to have completely decomposed while fully clothed, one lying almost on top of the other, and that they lacked identification, wallets, shoes, and belts. Another expert witness, the medical examiner, testified that in his opinion the victims died from nonsuicidal, nonaccidental, and nonnatural causes, and that the deaths resulted from the criminal act of another. During the course of the trial and outside the presence of the jury, the trial judge held an evidentiary hearing on the admissibility of appellant's confession and expressly found it had been knowingly and voluntarily given. Appellant was convicted as charged, the jury returned a recommendation of death, and the trial court imposed the death sentence.

Trial Phase

Bassett contends that his conviction should be set aside because (1) his statements were taken in violation of his right to counsel; (2) the state did not establish corpus delicti sufficiently to allow the admission into evidence of appellant's confession; (3) corpus delicti was not established beyond a reasonable doubt so to permit appellant's conviction; and (4) the prosecutor made prejudicial remarks in his closing arguments. We reject each of these contentions.

Appellant first contends that the state violated his constitutionally guaranteed right to counsel. Under the facts of the instant case, the investigating officers approached appellant after the trial court had discharged appointed defense counsel and read appellant his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant immediately asked for his attorney. Appellant charges that the mandates of Miranda required questioning to cease at that point and that his ensuing confession was therefore illegally obtained.

We have considered appellant's contention in light of Miranda and in light of the United States Supreme Court decision in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Appellant is correct that once a defendant asks for counsel, questioning must stop under Miranda until counsel is present. "Miranda itself indicated that the assertion of the right to counsel was a significant event and that once exercised by the accused, 'the interrogation must cease until an attorney is present.' 384 U.S., at 474, 86 S.Ct. at 1627." 451 U.S. at 485, 101 S.Ct. at 1885. Miranda also provided, however, that a defendant may waive effectuation of his rights, if he does so voluntarily, knowingly, and intelligently. In Edwards, the Supreme Court held that an accused "having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police." 451 U.S. at 484-85, 101 S.Ct. at 1884-85 (emphasis ours).

In the present case, after appointed counsel had withdrawn, police officers approached appellant and advised him of his rights. When appellant asked for his attorney, the officers informed appellant that his attorney had withdrawn, told him that they would get another for him, and stood up to leave. Appellant then responded "Well, what do you want anyway?" The officers replied that the victims' bodies had been discovered...