Bogle v. State, 81345

• Citation: 655 So.2d 1103
• Decision Date: 16 February 1995
• Docket Number: No. 81345,81345
• Parties: 20 Fla. L. Weekly S77 Brett A. BOGLE, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 1103

655 So.2d 1103

20 Fla. L. Weekly S77

Brett A. BOGLE, Appellant, v. STATE of Florida, Appellee.

No. 81345.

Supreme Court of Florida.

Feb. 16, 1995.

Rehearing Denied June 15, 1995.

James Marion Moorman, Public Defender and Robert F. Moeller, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen. and Candance M. Sabella, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Brett A. Bogle appeals his convictions of burglary with assault or battery, retaliation against a witness, and first-degree murder and his respective sentences, including a death sentence for the first-degree murder conviction. We have jurisdiction pursuant to article V, section 3(b)(1), of the Florida Constitution. For the reasons expressed, we affirm Bogle's convictions and sentences.

The record reflects the following facts regarding this case. Margaret Torres (the victim) was the sister of Katie Alfonso and stayed at Alfonso's house four or five nights a week. In June 1991, Bogle met Alfonso and shortly thereafter he moved in with Alfonso and the victim. Bogle and the victim did not get along and Alfonso eventually asked Bogle to move out. The following week, Bogle, Alfonso, the victim, and another person went out together and things seemed to be going better. During the outing, however, Bogle and the victim began to argue again. Subsequently, Alfonso and the victim refused to allow Bogle into Alfonso's house. Bogle then broke through the screen door of Alfonso's house, grabbed Alfonso's neck to push her out of the way, grabbed the victim's arm to remove the telephone from her hand as she tried to call 911, pulled the telephones out of the kitchen and bedroom, and took clothing from the house. As he left the house, Bogle told the victim that she would not live to tell about it if she called the police and pressed charges. In response to the victim's uncompleted call to 911, a deputy sheriff arrived shortly after Bogle left. The deputy referred the matter to the state attorney's office. Several days later, Bogle called Alfonso and again threatened the victim, stating that, if the victim pressed charges, she would not live to tell about it.

About two weeks later, Bogle called Alfonso to ask if he could come over to her house. The victim was out for the evening. When Alfonso told Bogle that he could not come over, he became furious and hung up. Later that night, Bogle and the victim ran into each other at a bar called Club 41. Witnesses saw them talking briefly. Witnesses also noticed that Bogle was clean and had no noticeable injuries of any kind when he arrived at Club 41. The victim left Club 41 at about 1 a.m.; Bogle left approximately five minutes later. About forty-five minutes after that, Bogle approached a car outside Club 41 and asked for a ride. At that time, his forehead was scratched, his clothes were dirty, and his crotch was wet.

The next day, the victim's nude and badly beaten body was found outside an establishment located next to Club 41. Her head had been crushed with a piece of cement, and she had died of blows to the head. Additionally, she had semen in her vagina and trauma to her anus consistent with sexual activity that was likely inflicted before death. The DNA extracted from the semen was consistent with Bogle's DNA (12.5% of Caucasian males could have contributed the semen), and a pubic hair found on the crotch area of Bogle's pants matched the victim's.

Bogle put on no evidence in his defense. The jury found him guilty of burglary of Alfonso's home with force, retaliation against the victim as a witness to that burglary, and first-degree murder of the victim. A penalty phase proceeding was held on the first-degree murder conviction, and the jury recommended death by a seven-to-five vote. The trial judge, however, granted a new penalty phase proceeding after determining that improper rebuttal evidence had been presented by the State.

At the second penalty phase proceeding, the State presented the same evidence it relied on in the guilt phase. Bogle put on eight witnesses who testified that Bogle had been subjected to physical and mental abuse as a child, had used drugs at his father's urging from the time he was five or six years old, was under the influence of alcohol at the time of the murder, had a personality disorder and suffered from some mental disturbance at the time of the murder, was kind to others, and had been injured in an automobile accident a week before the murder. The jury recommended death by a ten-to-two vote. The trial judge subsequently sentenced Bogle to death, finding four aggravating circumstances: (1) previous conviction of a violent felony (burglary with force on Alfonso and the victim two weeks before the murder); (2) the murder was committed while engaged in the commission of a sexual battery; (3) the murder was committed for the purpose of avoiding arrest; and (4) the murder was heinous, atrocious, or cruel (HAC). In mitigation, the trial judge gave some weight to the statutory factor of impaired capacity but stated that substantial impairment had not been proven; gave substantial weight to Bogle's family background; little weight to his alcohol and drug abuse; gave some weight to his good conduct during trial; gave some, but not a great deal, of weight to his kindness to others; and gave no weight to his involvement in an automobile accident. Bogle also received consecutive sentences of life in prison for the burglary-with-assault-or-battery conviction and five years in prison for the retaliation-against-a-witness conviction.

Bogle raises no issues regarding the guilt phase of his trial, and he raises six issues regarding the second penalty phase proceeding. Although Bogle raises no issues regarding his convictions, having reviewed the entire record in this proceeding, we find that the evidence was clearly sufficient to justify Bogle's convictions of burglary with assault or battery, retaliation against a witness, and first-degree murder, and we find no error that would merit reversal.

We now turn to the six issues raised by Bogle regarding the second penalty phase proceeding. In the first issue, Bogle claims that the office of the state attorney for the Thirteenth Circuit should have been prevented from prosecuting Bogle after one of Bogle's attorneys went to work for that office. The record reflects that Bogle was represented by two assistant public defenders, Douglas Roberts and Paul Firmani, during his trial. After the trial judge granted a new penalty phase proceeding, Roberts was hired by the state attorney's office for the Thirteenth Judicial Circuit. The public defender's office then filed a "Notice of Potential Conflict and Request for Hearing on Recusal" in Bogle's case given that Roberts would be working with the state attorney's office during Bogle's new penalty phase proceeding.

The trial judge held a hearing on this issue, at which Roberts and Nick Cox, the assistant state attorney handling Bogle's case, testified. They both acknowledged that, as they passed in the hall one day, they had a brief conversation about the case. Roberts stated that he asked Cox if the case was over yet. Cox stated that they briefly discussed the guilt phase of the trial and that Roberts told him that he and Firmani had a good relationship with Bogle, but that nothing was revealed by the conversation that was not already known to the State. The judge was distressed by the conversation but refused to disqualify the state attorney's office, finding no prejudice to Bogle.

Bogle argues that, under these circumstances, the trial judge erred in allowing the state attorney's office of the Thirteenth Judicial Circuit to prosecute him at the second penalty phase proceeding. According to Bogle, even if no prejudicial information was provided to Cox by Roberts, the appearance of impropriety raised by the conversation between the two is sufficient to warrant disqualification. We disagree. Disqualification of an entire state attorney's office is unnecessary when a disqualified attorney such as Roberts does not provide prejudicial information and does not personally assist in the prosecution of the charge. State v. Fitzpatrick, 464 So.2d 1185 (Fla.1985). Moreover, although we have stated that the appearance of impropriety created by certain situations may demand disqualification, we have evaluated such situations on a case-by-case basis. For instance, in Reaves v. State, 574 So.2d 105 (Fla.1991), we determined that the appearance of impropriety mandates the disqualification of a prosecutor who seeks to prosecute a defendant whom he or she previously defended. Likewise, in Castro v. State, 597 So.2d 259 (Fla.1992), we held that personal assistance to the prosecution by a defendant's prior counsel creates a sufficient appearance of impropriety to warrant disqualification. In Reaves and Castro, the result turned on the exchange of prejudicial information or the personal assistance of the disqualified attorney to the prosecution, both of which are specifically prohibited by Fitzpatrick.

In this case, the trial judge found, after holding a formal hearing, that no prejudicial information had been exchanged between Roberts and Cox and that Roberts had not assisted the prosecution in this case in any capacity. While we agree with the trial judge's conclusion that the conversation between Roberts and Cox should have never taken place, we also agree that any appearance of impropriety raised by the conversation was not so great that disqualification was mandated. Consequently, we reject this claim.

In his second claim, Bogle contends that the trial judge erroneously prevented his penalty phase jury from considering critical evidence. According to Bogle, one of the important pieces of evidence used by the State against Bogle at the second penalty phase proceeding to support the aggravating circumstances was that Bogle's face was not scratched before he and the...