Bolin v. State
| Citation | 650 So.2d 19 |
| Decision Date | 09 February 1995 |
| Docket Number | No. 80794,80794 |
| Parties | 20 Fla. L. Weekly S64 Oscar Ray BOLIN, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
James Marion Moorman, Public Defender, and Douglas S. Connor, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen. and Candance M. Sabella, Asst. Atty. Gen., Tampa, for appellee.
We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Oscar Ray Bolin. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const.
The trial of this case was based upon the indictment of defendant for the murder of Teri Lynn Mathews, who was last seen alive on December 5, 1986. Prior to this trial, the defendant was indicted in the Circuit Court of Hillsborough County for the murder of another woman. During the pretrial proceeding in the Hillsborough County case, a discovery deposition was taken by defendant's counsel of the defendant's former spouse. The circuit court ruled that the taking of this discovery deposition by defendant's counsel waived the spousal privilege as to spousal communications afforded by section 90.504, Florida Statutes (1991). The trial court in this case followed the ruling of the Circuit Court of Hillsborough County, reasoning that once the privilege was waived, the privilege could not be asserted in this subsequent proceeding. However, in Bolin v. State, 642 So.2d 540 (Fla.1994), we reversed the Circuit Court of Hillsborough County and held that the trial court erred in its ruling that the discovery deposition had waived the spousal privilege. Therefore, the trial court here, relying on the reasoning of the Hillsborough Circuit Court, also erred in ruling that the spousal privilege had been waived.
We have reviewed the record of this trial and conclude that the error in respect to the spousal communications was not harmless. Regarding these communications, the former spouse testified that she was told by defendant that he murdered a woman who was the manager of a Church's Fried Chicken restaurant, that he had murdered a person whose body was said by the former spouse to have been transported from a trailer in which she and defendant lived to a place off a road in Hillsborough County where defendant dumped the body, and that defendant pointed out a spot off another road and said, "[T]hat's where the Mathews girl was found." We cannot say that this testimony regarding defendant's admissions of murder did not contribute to the jury's determination of guilt. See Koon v. State, 463 So.2d 201 (Fla.), cert. denied, 472 U.S. 1031, 105 S.Ct. 3511, 87 L.Ed.2d 641 (1985); State v. DiGuilio, 491 So.2d 1129 (Fla.1986). For the purposes of retrial, we do point out that it is only the communications which are not admissible. The former spouse's testimony as to what she observed is admissible. Kerlin v. State, 352 So.2d 45 (Fla.1977).
Because this case is being remanded for a new trial, in order to facilitate the future proceedings, we will address two other issues raised in this appeal. First, in its brief, the State contends that even if the discovery deposition did not constitute a waiver, a letter sent by defendant to Captain Gary Terry was a valid waiver. This issue was not reached in the trial court because of the error in respect to the ruling that the discovery deposition was a waiver. In our opinion in Bolin v. State, 650 So.2d 21 (Fla.1995), we have set forth the procedure to be followed in determining whether the contents of the letter constituted a waiver.
The issue with respect to the waiver is whether the circumstances surrounding the letter and the content of the letter demonstrate that this defendant voluntarily consented to law enforcement officers talking with his spouse about her knowledge of his alleged criminal activities. 1 Because this issue was not addressed at trial, the record is not sufficiently complete for us to determine whether the letter constituted a voluntary consent. If on remand the trial court determines from the circumstances in which the letter was sent and from the content of the letter itself that the letter constituted a voluntary consent to such disclosure, then the marital privilege would be waived pursuant to section 90.507, Florida Statutes. Bolin's voluntary consent to the questioning of his former spouse about her knowledge of the criminal activities for which Bolin was being investigated would permit his former spouse to testify as to Bolin's statements to her regarding the murder because the statements comprised part...
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Lynch v. State
......, then there was not a waiver." (footnote omitted)) (quoting and reaffirming the totality-based test articulated in Bolin v. State, 650 So.2d 19, 21 (Fla.1995)). In relevant part, Lynch's March 3, 1999, murder-suicide letter [Y]ou will find copy of a letter she gave me Jan 11, and a card......
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Bolin v. Sec'y, Dep't of Corr.
...murder of Matthews. Petitioner was originally convicted and sentenced to death in 1992, but that conviction was reversed. Bolin v. State, 650 So.2d 19 (Fla. 1995). His second conviction and sentence of death was likewise reversed. Bolin v. State, 736 So.2d 1160 (Fla. 1999). 2. The Antiterro......
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BOLIN v. State of Fla.
...Matthews' murder in 1992, but that conviction was overturned by this Court because improper evidence was admitted at trial. Bolin v. State, 650 So.2d 19 (Fla.1995) (concluding that the trial court erred in finding waiver of spousal privilege based on defendant's deposition of ex-wife). On r......
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Bolin v. State, SC15–2149.
...murder in 1992, but that conviction was overturned by this Court because improper evidence was admitted at trial. State v. Bolin, 650 So.2d 19, 21 (Fla.1995) (concluding that trial court erred in finding waiver of spousal privilege based on defendant's deposition of ex-wife). On remand, Bol......