Brookings v. State

• Decision Date: 28 August 1986
• Docket Number: No. 64221,64221
• Citation: 11 Fla. L. Weekly 445,495 So.2d 135
• Parties: 11 Fla. L. Weekly 445 Donald William BROOKINGS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 135

495 So.2d 135

11 Fla. L. Weekly 445

Donald William BROOKINGS, Appellant, v. STATE of Florida, Appellee.

No. 64221.

Supreme Court of Florida.

Aug. 28, 1986.

Rehearings Denied Oct. 28, 1986.

Samuel R. Mandelbaum of Smith and Williams, P.A., Tampa, for appellant.

Jim Smith, Atty. Gen., and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Donald William Brookings appeals his conviction for first-degree murder and the imposition of a sentence of death. We have jurisdiction, article V, section 3(b)(1), Florida Constitution. We affirm the conviction, but vacate the sentence and remand with directions.

In November 1978, during a barroom fight in Tampa, Irwin Ballard allegedly stabbed several persons. One of those victims died. Earl Sadler witnessed this murder. Shortly thereafter, Ballard's mother, Mrs. Cecil Murray, claimed to have received threats against her family and property which she attributed to Sadler. In March 1980, Murray hired Brookings for $5,000 to kill Sadler in order to prevent Sadler from testifying against her son. On April 11, 1980 Brookings and his girlfriend, Judith Lowery, went to Sadler's home driving a car owned by Murray. Lowery testified at trial that she backed the car into Sadler's driveway and induced Sadler to come outside to help her on the pretext that her car would not start. While Sadler was in front of the car (evidently inspecting the engine) Brookings shot Sadler dead. Lowery drove over the victim's body as they left the murder scene.

There were no leads as to who committed this murder until over a year later when Lowery, incarcerated on unrelated felony charges, sent her attorney to the state in order to get a "deal" for herself. This deal was consummated in June 1981 and gave Lowery total immunity for her participation in the Sadler killing in exchange for her truthful testimony against appellant. After entering into the immunity agreement, Lowery provided the state with the information implicating Brookings and Murray who were charged with the homicide. Subsequently, Murray entered a plea of nolo contendere to second-degree murder in exchange for a life sentence and her truthful testimony against appellant. Murray filed a motion to mitigate her life sentence and after a hearing following the trial herein, her life sentence was reduced to twenty years.

The jury found appellant guilty of first-degree murder and recommended life imprisonment. The trial court sentenced appellant to death after finding three non-statutory mitigating, and five statutory aggravating, circumstances.

Appellant challenges his conviction and sentence on twelve grounds. First, appellant claims that it was error for the trial court to deny his motion pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for production of the grand jury testimony of lead detective Nelms and witness Lowery. According to appellant, there were certain inaccuracies and conflicts "of a material nature" between these witnesses' depositions and Nelms' original criminal affidavit. This, claims appellant, justified at least an in camera inspection of the grand jury testimony by the trial court to determine if it would be useful to the defense.

We have previously held that there is no pretrial right to inspect grand jury testimony. Jent v. State, 408 So.2d 1024 (Fla.1981) (citing Minton v. State, 113 So.2d 361 (Fla.1959)), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982). While holding an in camera inspection of such testimony is within the discretion of the trial court, see State v. Drayton, 226 So.2d 469 (Fla.2d DCA 1969), the facts presented sub judice make our decision in Jent controlling. In Jent we held "[m]ere surmise or speculation regarding possible inconsistencies in testimony" was not enough to require the production of grand jury testimony. 408 So.2d at 1027. The United States Supreme Court recently reaffirmed the importance of maintaining the secrecy of grand jury proceedings and held that a party seeking disclosure must make a strong showing of a particularized need in order to outweigh the public interest in secrecy. United States v. Sells Engineering, Inc., 463 U.S. 418, 443, 103 S.Ct. 3133, 3148, 77 L.Ed.2d 743 (1983). In an attempt to show such a particularized need, appellant enumerates several instances of alleged inconsistencies between the grand jury testimony of Nelms and Lowery and their subsequent depositions. But we find here, as we did in Jent, that appellant's counsel, through cross-examination at trial of both Lowery and Nelms, was able to direct the jury's attention to any purported inconsistencies between the witnesses' trial testimony and their prior depositions, thus obviating any need for resort to the grand jury testimony.

Appellant's next claim concerns the contract of immunity between the state and Lowery which was introduced into evidence without defense objection. In addition to requiring Lowery to testify truthfully at appellant's trial, the contract required Lowery to submit to a polygraph examination if requested by the state. Defendant made no request to excise or remove that provision from the document. At trial the prosecution asked Lowery if she had lived up to the contract and testified truthfully to which Lowery answered affirmatively. There was no specific mention of the polygraph. During a defense proffer, appellant attempted to question detective Nelms as to whether he had given Lowery a polygraph exam. Upon determining that Nelms had no personal knowledge of this fact, the trial judge prohibited questioning Nelms on this point in front of the jury as Nelms' testimony would not be relevant.

Although results of a polygraph examination are inadmissible as evidence, Sullivan v. State, 303 So.2d 632 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976); Kaminski v. State, 63 So.2d 339 (Fla.1952), they may be admitted into evidence by stipulation or waiver by the parties. Delap v. State, 440 So.2d 1242 (Fla.1983), cert. denied, 467 U.S. 1264, 104 S.Ct. 3559, 82 L.Ed.2d 860 (1984). The gravamen of appellant's complaint is that the state, by introducing the contract of immunity into evidence, created an inference that Lowery had taken and passed a polygraph, thus bolstering her credibility with the jury. Having substantially benefited from this inference, appellant concludes, the state waived its right to object to the defense's questioning of Nelms on this point.

If the prosecution had elicited explicit testimony from Lowery concerning the polygraph examination there might be some basis for appellant's position but this did not happen here. See Bollinger v. State, 402 So.2d 570 (Fla. 1st DCA 1981); Kaminski.

In Sullivan, one of the state's key witnesses testified that he would "have to have taken a polygraph test and passed it" under his plea agreement. The witness made only this one reference to a polygraph in front of the jury. The state admitted that it intended to elicit this reference to a polygraph exam. 303 So.2d at 634. While condemning such prosecutorial conduct, this Court nevertheless held the error to be harmless, stating:

We cannot know how the jury construed his answer, or what weight was given to it; therefore, to assert that it was construed as meaning that he had already passed it would be pure speculation on our part. Reversible error cannot be predicated on conjecture.

Id. at 635 (citation omitted).

In the case at bar, the only reference to a polygraph exam was within Lowery's contract of immunity introduced into evidence. The contract itself called for a polygraph exam if requested by the state. These two facts lend themselves to various possible inferences which the jury could have drawn. It would be pure conjecture on our part as to which one the jury drew. We conclude that this is too tenuous to support a finding of harmful error.

Appellant's next contention is that it was error for the trial court to restrict his examination of Lowery and her attorney as to the allegedly different version of the Sadler murder Lowery gave her attorney before he approached the state seeking a plea bargain. Appellant's theory is that Lowery, by sending her attorney to the state, and by testifying at trial, waived her attorney-client privilege. ¹ We disagree.

Various reasons have historically been cited for the existence of the attorney-client privilege. The modern view is that the privilege promotes the administration of justice by "encouraging clients to lay the facts fully before their counsel." McCormick's Handbook of the Law of Evidence § 96 (E. Cleary 2d ed. 1972). By encouraging full disclosure, a client is able to receive fully informed legal advice without the fear that his statements may later be used against him. As the United States Supreme Court has observed:

As a practical matter, if the client knows that damaging information could more readily be obtained from the attorney following disclosure than from himself in the absence of disclosure, the client would be reluctant to confide in his lawyer and it would be difficult to obtain fully informed legal advice.

Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976).

This Court has said that:

The attorney-client privilege arises in the context of a relationship having great significance for the protection of fundamental personal rights. For example, the ability to speak freely to one's attorney helps to preserve rights protected by the fifth amendment privilege against self-incrimination and the sixth amendment right to legal representation.

Mills v. State, 476 So.2d 172-176, (Fla.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349 (1986).

Appellant's contention that Lowery's testimony against appellant waived her attorney-client privilege is erroneous. We hold that the mere fact that a witness-client testifies to facts which were the subject of...