Blake v. State

Decision Date13 December 2007
Docket NumberNo. SC05-1302.,SC05-1302.
Citation972 So.2d 839
PartiesHarold A. BLAKE, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court
972 So.2d 839
Harold A. BLAKE, Appellant,
v.
STATE of Florida, Appellee.
No. SC05-1302.
Supreme Court of Florida.
December 13, 2007.

[972 So.2d 840]

Robert A. Norgard and Andre M. Norgard of Norgard and Norgard, Bartow, FL, for Appellant.

Bill McCollum, Attorney General, Tallahassee, Florida, and Katherine V. Blanco, Assistant Attorney General, Tampa, FL, for Appellee.

PER CURIAM.


Harold Blake appeals his convictions of first-degree murder, attempted armed robbery, and grand theft of a motor vehicle, as well as his sentence of death. He raises three issues: (A) that the trial court erred in denying the motion to suppress his recorded statement; (B) that the trial court erred in failing to advise him of his right to self-representation; and (C) that his death sentence is not proportionate. As explained below, we affirm.

I. FACTS AND PROCEDURAL HISTORY

On the morning of August 12, 2002, Maheshkumar "Mike" Patel was shot and killed as he stood inside the glass doors of a convenience store, called Del's Go Mart, that he owned and operated in Winter

972 So.2d 841

Haven, Florida. The store's video surveillance camera partially captured the shooting. The cause of death was a gunshot wound to the chest.

Witnesses testified that on August 12, 2002, at about 6 a.m., they heard a gunshot and saw a black male run and enter a light-colored car parked in front of the store. A detective found the car abandoned a little over a mile away. A K-9 tracked a scent from the car to a building in the Lake Deer Apartments. At the time, Teresa Jones was living in that complex with her children and her boyfriend, Richard Green.1

At about 7:00 or 7:10 that morning, Richard Green, Kevin Key, and Blake came to Teresa's home. She took Key to a store and Blake to the Scottish Inn, where he was staying. On the way, they stopped by a light-colored car on the side of the road, and Blake removed two guns from it. Blake told Teresa he had shot someone. Blake took the guns with him. Later the same day, Blake told Demetrius Jones that he, Green, and Key were attempting a robbery and someone was shot. Blake asked Demetrius to dispose of a gun, and Demetrius agreed to attempt to sell it. However, Blake did not give Demetrius the gun. At around 6 or 7 p.m. that night, Green gave Demetrius a 9 mm handgun and they attempted to sell it, but no one bought it. Later that night or early the next morning, Green threw the gun in a nearby lake.

On August 14, Detectives Louis Giampavolo and Ivan Navarro interviewed Richard Green. Green took the officers to the apartment where Blake was located, and Blake was arrested without incident. Blake began talking as soon as Giampavolo and Deputy Sheriff Kenneth Raczynski placed him in Giampavolo's car. Giampavolo read Blake his Miranda2 rights on the way to the station. When they arrived, they placed Blake in an interview room with hidden audio and video equipment. They did not reread his Miranda rights or have him sign a waiver.

Giampavolo and Raczynski interviewed Blake. Blake said he stole a vehicle and then met Green and an unknown black male. He initially said he sold the car and was not involved with the Patel shooting. Blake then said "all three of us will get charged," made a statement about the death penalty, and began to cry. He admitted that they went to the store to commit a robbery. Blake said he was in the backseat and had a 9 mm handgun and a .38 caliber revolver. All three of the men got out of the car. Blake had the 9 mm handgun. When Patel made a sudden movement and tried to lock the door, Blake shot him. Giampavolo then asked Blake to give an audiotaped statement. Blake did not agree to taping the statement, but said he would detail the events one more time. The officers decided to videotape the statement anyway.

As seen on the videotape, Blake said he stole a car and picked up Richard Green, who was with an unknown male. Green drove to the store. The men walked up to the door of the store. Blake carried a gun with his finger on the trigger. As they approached, Patel scared him and Blake shot him with the 9 mm handgun. Blake claimed that it was an accident, however— it was intended to be a warning shot. Blake acknowledged he had been treated well and that Giampavolo had read him his rights in the car:

972 So.2d 842

Blake was indicted for first-degree murder, attempted armed robbery, and grand theft of an automobile. At trial, he testified in his own defense. He admitted that he stole the car, but claimed that when the trio arrived at the store, he stayed in the car and heard gunshots. He claimed the entire incident was against his will.

The jury found Blake guilty of first-degree murder, attempted robbery (with a finding that he discharged a firearm resulting in death), and grand theft of a motor vehicle. At the penalty phase, the jury unanimously recommended that he be sentenced to death. After a Spencer3 hearing, the trial court followed the jury's recommendation, finding three aggravating factors: (1) previous conviction of another capital felony or of a felony involving the threat of violence to the person—first-degree murder and attempted robbery with a firearm (great: weight); (2) commission by a person previously convicted of a felony and under sentence of imprisonment, or placed on community control, or on felony probation (some weight); and (3) commission while the defendant was engaged in an attempt to commit the crime of armed robbery (merged with commission for financial gain) (moderate weight). The court found one statutory mitigator— age of the defendant at the time of the offense (moderate weight)—and seven nonstatutory mitigators: (1) appropriate courtroom behavior (some weight); (2) never displayed violence in the presence of his family, was a good son, and formed a loving relationship with his family (moderate weight); (3) remorseful for his conduct (some weight); (4) cooperated with the deputies at the time of arrest (some weight); (5) the co-participant. Richard Green was sentenced to life imprisonment (very little weight); (6) no prior violent felony convictions, except the capital felony committed two weeks prior to the death of Patel (little weight); and (7) adjustment to confinement and institutional living and no danger to the community at large if incarcerated for life (some weight). This appeal followed.

II. DISCUSSION OF LAW

Blake raises three issues: (A) that the trial court erred in denying the motion to suppress his recorded statement; (B) that the trial court erred in failing to advise him of his right to self-representation; and (C) that his death sentence is not proportionate. We address these issues below, as well as (D) sufficiency of the evidence.

A. Admissibility of the Videotaped Statement

Blake first argues that the trial court erred in denying his motion to suppress his recorded statement. The relevant facts are undisputed. Blake acknowledges that he "made two statements to law enforcement after his arrest, the second of which was video tape recorded," and that "Fun the videorecording Mr. Blake provided essentially the same factual recitation of the incident." The State agrees that Blake's statement was recorded secretly after he refused to give a taped statement.

Blake argues that by asking him to agree to a taped statement, the detective implicitly promised that his refusal would be honored, rendering the recording involuntary. Therefore, the trial court should have granted his motion to suppress his videotaped statement. In reviewing the trial court's ruling on a motion to suppress, we accord a presumption of correctness to the determination of historical facts, but "independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and, by extension, article I, section 9 of the Florida

972 So.2d 843

Constitution." Nelson v. State, 850 So.2d 514, 521 (Fla.2003) (quoting Connor v. State, 803 So.2d 598, 608 (Fla.2001)).

Many courts have held it permissible to record a confession without the defendant's knowledge or consent. See, e.g., Lester v. Wilson, 363 F.2d 824, 826 (9th Cir.1966) ("[P]olice secrecy and deception in obtaining a tape recording of incriminating statements, unassociated with a right to counsel problem or other circumstance which would render such statements inadmissible, do not present a constitutional violation."); Bell v. State, 802 So.2d 485, 485 (Fla. 3d DCA 2001) (rejecting a claim that a videotaped statement must be suppressed because the defendant was not aware that his statement was being videotaped); Davis v. State, 271 Ga. 527, 520 S.E.2d 218, 219 (1999) (finding that the failure to inform defendant that his statement was being videotaped did not render the statement involuntary); State v. Wilson, 755 S.W.2d 707, 709 (Mo.Ct.App.1988) ("Secret recordation of in-custody questioning of an accused, standing alone, is not unconstitutional."). Therefore, Blake acknowledges that the detectives could have simply recorded the statement without his consent. Nevertheless, he argues that because the detective asked him for permission and he refused, the videotaped confession was a result of an implied promise that it would not be taped.

This is a question of first impression in this Court. In fact, our research has revealed only two cases addressing this issue: Woods v. McDonough, No. 8:03-CV2336-T-27MAP, 2007 WL 1017666. (M.D.Fla. Mar.30, 2007), a recent case from the United States District Court for the Middle District of Florida; and Wilson, 755 S.W.2d at 709, a Missouri appellate court case. Although it involved an audio rather than a video recording, the circumstances in Woods are nearly identical to those here. In that case, the defendant gave oral post-Miranda statements regarding his involvement in the crime. Woods, 2007 WL 1017666, at *9. A detective asked if he would give a taped statement, but the defendant...

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