Bolin v. State

• Decision Date: 10 June 1999
• Docket Number: No. 89,385.,89,385.
• Citation: 736 So.2d 1160
• Parties: Oscar Ray BOLIN, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

736 So.2d 1160

Oscar Ray BOLIN, Jr., Appellant, v. STATE of Florida, Appellee.

No. 89,385.

Supreme Court of Florida.

June 10, 1999.

James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Candance M. Sabella, Assistant Attorney General, Tampa, Florida, for Appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Oscar Ray Bolin, Jr. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We reverse Bolin's conviction and sentence and order a new trial because the trial court erred in denying Bolin's motion for individual and sequestered voir dire of prospective jurors who had been exposed to prejudicial pretrial publicity and who eventually served on Bolin's jury.

Bolin was tried, convicted, and sentenced to death in Pasco County for the murder of Teri Lynn Mathews on the night of December 5, 1986, in the area of the Land O' Lakes Post Office where Mathews had a post office box.

This Court reversed Bolin's initial conviction in this case because improper evidence was admitted at trial. Bolin v. State, 650 So.2d 19 (Fla.1995). After retrial, the jury convicted Bolin and returned a unanimous recommendation of a sentence of death. The court sentenced Bolin to death, finding four aggravating circumstances: that Bolin had previously been convicted of violent felonies; that the murder was cold, calculated, and premeditated (CCP); that the murder was heinous, atrocious, or cruel (HAC); and that the murder was committed during a felony (kidnapping). The court gave great weight to each of the aggravators. The court found no statutory mitigating circumstances but found as nonstatutory mental-health mitigators that Bolin had minimal brain damage (moderate weight); that his capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law was "impaired but not substantially impaired" (slight weight); and that the crime was committed while Bolin was under the influence of mental or emotional disturbance (moderate weight). The court found and gave little weight to the following additional nonstatutory mitigators: that Bolin was abused during childhood; had a deprived childhood; was not disruptive during trial; had rescued a friend from potential drowning; and was gainfully employed at the time of the crime. Finding that the aggravators outweighed the mitigators, the court sentenced Bolin to death on October 9, 1996.

Bolin raises eight claims in this appeal.¹ Because we find that the trial court abused its discretion regarding the conduct of voir dire, we must again reverse Bolin's conviction and death sentence and remand for a new trial. Thus, the remaining claims on appeal are moot. Aside from the first claim, concerning voir dire, we will address claims two and four only as they relate to Bolin's next trial.

The first claim is dispositive and concerns Bolin's contention that the trial court abused its discretion in denying defense counsel's motion for individual and sequestered voir dire of prospective jurors who said they had read newspaper articles about Bolin's case that were published in Pasco County on the days leading up to Bolin's trial. Bolin contends that he was deprived of his right to a fair and impartial jury in that he was unable to ascertain how this exposure to pretrial publicity affected jurors who sat on his jury. Specifically, Bolin contends that the court erred in refusing to allow individual and sequestered voir dire of five prospective jurors with admitted prior knowledge of the case, which included possible knowledge of news reports concerning prior-crime evidence that was inadmissible in Bolin's retrial in Pasco County.

On Saturday, August 10, 1996, two days before jury selection began the following Monday in the instant trial, the Tampa Tribune published an article in its Pasco County edition that contained inadmissible and prejudicial information including the following:

During the first trial, Phillip Bolin was a willing witness for the state, and his testimony played an important part in putting Oscar Bolin, now 34, on death row....

. . . .

All three convictions were reversed in 1995 by the Florida Supreme Court, which ruled the trial judge erred in allowing testimony of Bolin's former wife, who is now deceased, as to what Oscar Bolin had told her about the killings.

Also during the weekend before the trial began, the St. Petersburg Times, which circulates in Pasco County, published an article containing the following inadmissible and prejudicial information:

Bolin, a 34-year-old former carnival worker, was convicted of Mathews' murder and of killing two other women in Hillsborough County, but the convictions were overturned by the state Supreme Court, taking Bolin off death row.

In Bolin's trials for the 1986 murders of Natalie Blanche Holley, 25, and Stephanie Collins, 17, his ex-wife, Cheryl Jo Colby, testified that he had confessed to the killings. A conviction in the Mathews case was based in part on Bolin's previous convictions.

On Monday, August 12, 1996, the day that jury selection began, the Tampa Tribune published another article about Bolin's case based on interviews with the victim's mother and sister. Inadmissible and prejudicial information in that article included the following:

Bolin was convicted in 1992 in Teri's death. Juries also found him guilty of murdering two young Hillsborough women and the 34-year-old former truck driver was sentenced to die in the electric chair in all three cases.

But while he sat on death row, Bolin's convictions were overturned.

The same article quoted Teri Lynn Mathews' mother as follows: "`How do you get three murder convictions and not be guilty of something?' [Mathews' mother] says. `I brought my child up to obey the law and to trust it. This is a sham of justice. And it's draining the life out of all of us.'" This article also quoted Mathews' sister as saying: "`This is a predator among all of us. If he gets out, he'll kill again. It will be someone else's daughter. It will be someone else's sister.'"

On Monday, August 12, 1996, the Tampa Tribune published a separate article containing inadmissible and prejudicial information including in relevant part:

Accused serial killer Oscar Ray Bolin's retrial begins today in New Port Richey under tight security.

The 34-year-old former truck-driver was convicted in 1992 and sentenced to die for killing 26-year-old Teri Lynn Mathews. But the Florida Supreme Court overturned that murder conviction and two others from Hillsborough County.

. . . .

From his jail cell in 1990, Bolin was accused of plotting to kidnap the wives of the Hillsborough sheriff and two other officers.

In the months prior to the trial, defense counsel twice moved the court to conduct individual and sequestered voir dire concerning trial-related publicity and prospective jurors' opinions concerning the death penalty. Bolin sought individual voir dire to question each prospective juror who indicated exposure to pretrial publicity apart from the other venirepersons in order not to "`educate' all jurors as to prejudicial and incompetent material, thereby rendering it impossible to select a fair and impartial jury." On the day that jury selection began, the judge denied defense counsel's renewed motion for individual and sequestered voir dire but agreed to accept proffered questions as to the extent of publicity exposure that defense counsel would have asked during such voir dire. Rather than ordering individual voir dire, the judge required each prospective juror to complete a questionnaire concerning prior knowledge of the case before entering the courtroom for collective voir dire. The judge initially excused, without objection, a total of seventeen venirepersons based on the judge's assessment that these prospective jurors had indicated in their questionnaire responses "that they had some knowledge of the defendant and as a result of that knowledge that they would not be able to serve with an open mind and render ... an impartial decision based only on the law and the evidence."

During the State's voir dire of this first panel, the prosecutor asked if anyone had read about the case. Five prospective jurors raised their hands. The prosecutor then asked if anyone would have a problem basing his or her verdict solely on the evidence presented at trial. No hands were raised. Subsequently, defense counsel asked whether anyone who had read about the case had formed an opinion as to the guilt or innocence of Bolin and, if so, whether he or she could set aside that opinion. No hands were raised. As to the second group of venirepersons, neither the judge nor the prosecutor asked any collective questions concerning exposure to publicity. However, defense counsel asked, "After further reflection, do any of you who have indicated that you have some knowledge feel that your opinion about this case or the guilt or innocence of my client is so strong that you cannot set that opinion aside?" No hands were raised.

Bolin then challenged six of the remaining prospective jurors for cause based upon his inability to determine whether their exposure to pretrial publicity would make them unsuitable jurors. The judge denied the cause challenges. Defense counsel exercised peremptory strikes on two of the six venirepersons whom he had challenged for cause. In the second round of challenges, defense counsel challenged for cause prospective juror Moses, who stated that he had been exposed to pretrial publicity. When the judge denied the cause challenge, defense counsel exercised a peremptory strike to excuse Moses. Defense counsel requested four extra peremptories after his ten allowed peremptory strikes were exhausted in order to excuse the four prospective jurors remaining on the panel who indicated prior...