Brennan v. State

Decision Date08 July 1999
Docket NumberNo. 90,279.,90,279.
Citation754 So.2d 1
PartiesKeith BRENNAN, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

J.L. "Ray" LeGrande of LeGrande & LeGrande, P.A., Fort Myers, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Carol M. Dittmar, Assistant Attorney General, Tampa, Florida, for Appellee.


We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Keith Brennan, who was sixteen years old at the time of the crime. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. For the reasons expressed below, we affirm the conviction and sentences imposed upon Brennan, with the exception that the death penalty is vacated and his sentence reduced to life imprisonment without the possibility of parole. We have affirmed the conviction and death sentence for Brennan's codefendant, Joshua Nelson. See Nelson v. State, 748 So.2d 237 (Fla.1999)



The evidence presented at trial, viewed in the light most favorable to the State, established the following facts. Brennan, age sixteen, and Nelson, age eighteen, wanted to leave Cape Coral and travel to Fort Lauderdale. The two devised a plan to steal Tommy Owens' car. On March 10, 1995, Brennan and Nelson lured Owens out of his car and Nelson hit Owens with a baseball bat. After a number of hits, Owens eventually fell to the ground. Brennan attempted to slice Owens' throat with a box cutter. Brennan and Nelson also continued to strike Owens a number of times with the bat. The two eventually dragged Owens' body to nearby bushes where Owens later died.

Brennan and Nelson picked up Tina and Misty Porth, and the four left Cape Coral in Owens' car. After stopping in Daytona Beach, the four proceeded to leave the state, eventually ending up in New Jersey. At different times during the trip, Brennan and Nelson informed Tina and Misty that they had murdered Owens. Tina and Misty both testified at trial.

Brennan and Nelson were apprehended in New Jersey. Brennan was charged with first-degree premeditated murder, first-degree felony murder, and robbery with a deadly weapon. Brennan gave a taped confession of his account of the murder, in which he admitted his involvement in the murder but denied that there had been any prior plan to kill Owens. The taped confession was played to the jury. Brennan was found guilty on all three counts.

At the time of the crime, Brennan was a sophomore in high school. He had no significant history of prior criminal activity, and his juvenile records showed only prior crimes against property. His codefendant was eighteen. Professionals who treated Brennan and his family members described him as a follower.

During the penalty phase, Brennan presented evidence that he was two years of age when his mother committed suicide. Prior to her death, his mother was confined to a mental institution and suffered from severe mental depression. When Brennan was approximately eight years of age, he was sexually abused by an older brother for a period of six months. He was small in stature, suffered from a speech impediment, and was often "picked on" by others. In 1993, he received inpatient treatment for drug and alcohol addiction. Brennan had been using LSD the night before the homicide.

After hearing all the evidence, the jury recommended death by a vote of eight to four. The trial judge found four aggravators: (1) the capital felony was committed in the course of a robbery; (2) the capital felony was especially heinous, atrocious, or cruel (HAC); (3) the capital felony was committed in a cold, calculated, and premeditated manner without any pretense of legal or moral justification (CCP);1 and (4) the capital felony was committed for the purpose of avoiding arrest. The judge also considered six statutory mitigators and twenty-five nonstatutory mitigators. The statutory mitigator of age (sixteen) was given great weight and the statutory mitigator of no significant criminal history was given moderate weight. The judge concluded that Brennan had failed to establish the statutory mitigators of (1) extreme emotional disturbance, (2) accomplice with minor participation, (3) acting under the domination of another person, and (4) limited capacity to appreciate the criminality of his conduct. The trial judge weighed each of the nonstatutory mitigators that were established.2

While giving significant weight to Brennan's young age and moderate weight to his lack of significant criminal history, the trial court concluded that Brennan had "nonetheless wielded a baseball bat and box cutter to murder another young man." In the end, the trial court followed the jury's recommendation and imposed the death penalty for the first-degree murder charge. The trial judge sentenced Brennan to 160 months imprisonment on the robbery charge. Brennan now appeals, raising fourteen guilt and penalty phase issues.


Brennan raises five guilt phase issues: (1) the trial court improperly permitted the testimony of a critical witness who was incapacitated; (2) the trial court erred by giving the State advice on trial strategy; (3) the trial court erred in permitting the State to utilize a substitute medical examiner to introduce evidence; (4) the trial court violated Brennan's right to confrontation by admitting a nontestifying codefendant's out-of-court statement; and (5) the trial court erred by failing to properly determine the admissibility of testimony by the State's DNA expert.

In the first and second guilt phase issues, Brennan asserts that the trial court erred in admitting the testimony of a witness who was incapacitated and by giving the State advice on trial strategy regarding this witness. Dr. William Ross Maples, a forensic anthropologist, was called by the State to testify in order to establish that the dental remains found at the crime scene matched Owens' dental records. At the time of the trial, Dr. Maples had been diagnosed with terminal brain cancer. This condition occasionally affected his ability to recall information. Dr. Maples had testified normally months earlier in the Nelson trial; however, during Brennan's trial, Dr. Maples misidentified the dental records in question as belonging to Brennan. As a result, the State requested a recess to discuss Dr. Maples' condition with the court.

The parties met with the trial court to discuss how the examination of Dr. Maples should proceed in light of his condition. During the discussion, the trial court acknowledged that Dr. Maples was "definitely incapacitated." Counsel for Brennan also stated that Dr. Maples "may be incompetent to testify." The parties discussed the possibility of introducing Dr. Maples' testimony from the previous Nelson trial or his deposition in this case. Counsel for Brennan pointed out that Brennan was not a party to the Nelson trial and that there was inadmissible testimony in Dr. Maples' deposition. The trial court and both parties agreed that it would be best for the State to continue questioning Dr. Maples. Thereafter, the trial court stated:

THE COURT: I think you're [the State] gonna have to ask him about that, you know, you identified this x-ray as Keith Brennan, you know, without letting him know. You know, is that correct, I mean, is this x-ray of Keith Brennan, and see what he says.... On the other hand, if you [the State] can say something, you have some physical difficulties now....

After the recess, Dr. Maples identified the dental records as belonging to Owens without objection.

Brennan now asserts that it was error for the trial court to permit Dr. Maples to testify because he was incapacitated. Further, Brennan alleges that the trial court erred by giving the State advice on how to proceed in questioning Dr. Maples. We find that these issues were not preserved for appeal as Brennan's counsel both agreed to the procedure followed by the trial court and failed to make contemporaneous objections at trial either to the trial court's comments or to Dr. Maples' testimony. See generally J.B. v. State, 705 So.2d 1376, 1378 (Fla.1998)

(stating that except in cases involving fundamental errors, "to raise an error on appeal, a contemporaneous objection must be made at the trial level when the alleged error occurred").

In his third issue, Brennan alleges that the trial court erred in permitting Dr. Carol Huser, a medical examiner who had not performed Owens' autopsy, to testify as to Owens' cause of death. Whether a witness is qualified to express an expert opinion is a matter within the discretion of the trial judge, and this ruling will not be reversed absent a clear showing of error. See Ramirez v. State, 542 So.2d 352, 355 (Fla.1989)

. We find this case to be similar to Geralds v. State, 674 So.2d 96, 100 (Fla.1996), where this Court held that the trial judge did not err in permitting a medical expert to testify as to the victim's cause of death, despite the fact that the expert did not perform the autopsy. In that case, we focused on the fact that the substitute examiner developed independent conclusions using objective evidence. See id. In the present case, Dr. Huser testified that in reaching her conclusions she reviewed, among other things, the autopsy report, a report by Dr. Maples, depositions, photographs, and dental records. Therefore, because Dr. Huser made independent conclusions using objective evidence, we find that the trial court did not abuse its discretion in permitting her to testify.

Brennan also claims error regarding the authenticity of the documents upon which Dr. Huser relied. However, this claim is not preserved for appellate review as no objection was raised at trial regarding the authenticity of the documents. See generally J.B., 705 So.2d at 1378


In issue four, Brennan asserts that the trial court violated his right to confrontation by admitting statements codefendant Joshua...

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