Brown v. State
| Decision Date | 31 January 1980 |
| Docket Number | No. 46925,46925 |
| Parties | Joseph Green BROWN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
J. Michael Shea, Tampa, for appellant.
Jim Smith, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for appellee.
This is an appeal from a conviction of murder in the first degree and a sentence of death. Jurisdiction vests pursuant to article V, section 3(b)(1), Florida Constitution.
The appellant, Joseph Green Brown, was convicted of rape, robbery, and first-degree murder. The conviction was based primarily on the testimony of Ronald Floyd, who was with the appellant immediately prior to the crime and immediately afterwards. The facts, as revealed by Floyd's testimony indicate that on the date of the murder the defendant, Floyd, and a third man known as "Poochie" who has never been located, drove to a clothing shop where the murder was committed. The appellant and Poochie parked the car across the street from the shop and walked into the shop. Apparently unaware of the reason for the visit to the shop, Floyd was left sitting in the car. After waiting for approximately fifteen minutes, Floyd got out of the car and walked over to the front door of the shop. He then heard a gunshot and immediately opened the door and entered the shop. He saw Poochie standing in the doorway of what appeared to be a storage room in the rear of the shop. When Floyd looked over the counter, he saw the body of the victim on the other side of the storage room door. The three men then raced out of the shop and drove speedily away. While in the car, Poochie turned to the appellant and said, "Man, you didn't have to do that." Floyd testified that when appellant first got out of the car to cross the street and enter the clothing store, he had a bulge in his shirt which seemed to be a gun. According to Floyd, all of these events took place in the early afternoon of July 7, 1973.
At approximately 9:30 that evening, the body of the victim was discovered in the storage room of the clothing store. She had been raped and murdered. On the evening of and subsequent to the murder, the defendant and Floyd robbed a couple in a motel and appellant sexually assaulted the female. The following day, the appellant turned himself in to law enforcement officers for the motel robbery.
A verdict of guilty was returned by the jury and an advisory recommendation of a sentence of death was rendered. Appellant was adjudged guilty and sentenced to death on July 3, 1974. On appeal, appellant seeks a new trial on the grounds that: (1) after the trial, Floyd denied that his testimony was true, although he ultimately reaffirmed the truth of his testimony; (2) the prosecuting attorney failed to furnish Floyd's statements pursuant to rule 3.220(a), Fla.R.Crim.P.; (3) the state failed to inform appellant's counsel that Floyd's testimony was given in return for favorable consideration in criminal matters pending against him; (4) the appellant was denied a fair trial by an impartial jury due to the systematic exclusion of prospective jurors who voiced opposition to the death penalty; and (5) the appellant was denied a fair trial by an impartial jury due to the prejudicial effect of admitting testimony of other unrelated offenses.
We are not persuaded by appellant's argument that Floyd's subsequent recantation of his trial testimony, when coupled with his reaffirmation of that testimony, constitutes grounds for a new trial. After appellant was convicted, appellant's counsel secured from Floyd an affidavit wherein Floyd stated that his testimony against appellant in this murder trial was false. The affidavit was notarized by the defense counsel and given by Floyd while he was incarcerated at the Union Correctional Institute. Floyd and appellant's counsel were the only persons present at the time the affidavit was prepared and signed. While the case was here on appeal, this court granted appellant's motion for remand for further consideration in light of the Floyd affidavit. At a hearing on appellant's motion, Floyd admitted signing the affidavit, but reaffirmed his trial testimony and said that statements to the contrary in the affidavit were false. As to some questions, he exercised his right to remain silent. The trial court denied appellant's motion for a new trial because it was based solely on the Floyd affidavit which had been retracted and denounced by Floyd at the hearing on the motion. We considered a similar challenge in Bell v. State, 90 So.2d 704, 705 (Fla.1956). There we said, citing Henderson v. State, 135 Fla. 548, 185 So. 625, 630 (1939):
We agree with the trial court that a witness's post trial recantation of testimony, followed by a clear retraction of the post trial statements, is not sufficient to overturn a jury verdict and sentence. Under the circumstances here, as in Bell, "the trial judge's skepticism as to the truth of the matter contained in the affidavit is understandable." Id. at 705. We find no abuse of discretion in his denying the motion for new trial on this ground.
Appellant next charges that the state failed to furnish several of Floyd's statements to his counsel pursuant to rule 3.220(a), Fla.R.Crim.P. We previously remanded this cause to the circuit court for determination of whether Floyd's statements were in the possession of the state and not produced for the defense. After an evidentiary hearing on the matter, the trial court determined that all statements made by the witness to which the defense would be entitled were in fact furnished to defense counsel prior to the trial. Since we find nothing in the record to cast doubt on that determination, we find no merit in this point.
Appellant next argues that he is entitled to a new trial on grounds that the state failed to inform defense counsel that the testimony of the state's key witness, Floyd, was given in return for favorable consideration in this and other criminal matters pending against Floyd. Floyd testified at trial that the state had given him no promises of favorable consideration in this case or any other case as an inducement for his testimony against appellant. This testimony is consistent with the state's version of the pre-trial discussion with Floyd. The appellant's claim is based on statements made in the March, 1975, affidavit of Floyd which indicated that the state had promised favorable treatment in exchange for his testimony against the appellant. Although Floyd retracted part of that statement at an evidentiary hearing on the matter, at that same time he reaffirmed his claim as to promises of favorable treatment. At that same hearing, the state denied that any such promises were made. The appellant's claim rests solely on the affidavit of Floyd. There is nothing in the record to suggest that the state did in fact make such promises. Although he had an opportunity to do so at the evidentiary hearing on the matter, appellant offered no testimony to substantiate the affidavit. By remaining silent while a witness testifies in a manner wholly consistent with the state's view of the facts, we do not believe that the prosecution engaged in the "deliberate deception of a court and jurors" which is necessary to reverse a conviction on these grounds. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).
Appellant charges that he was denied a fair trial by an impartial jury due to the systematic exclusion of prospective jurors who voiced opposition to the death penalty. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). We disagree. Nine of the ten jurors who were excluded had been excused before the appellant made his objection on this ground. In Paramore v. State, 229 So.2d 855 (Fla.1969), vacated on other grounds, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 751 (1972), we responded to a similar argument by stating:
If defendant objects to a prospective juror being excused he should make his objection before the juror is excused. . . . When these three prospective jurors expressed their convictions against the infliction of the death penalty, appellant's attorney made no effort to qualify them for service. Perhaps he did not want them for some other reason. It was not the duty of the trial court to take other steps toward attempting to qualify the veniremen, and the Witherspoon case, supra, should not be construed as imposing this additional duty upon the trial court in the absence of any expression of a desire by defense counsel to keep the prospective jurors. . . . The appellant is in no position to complain in the instant case because no objection was interposed . . . .
The one prospective juror who was excused after timely objection was properly excused for cause in accordance with the Witherspoon standards. During the voir dire examination of that prospective juror, the following colloquy occurred:
A I have been listening all afternoon but sitting up there I just don't think I could recommend a verdict of death. Capital punishment.
Q (Prosecuting attorney) Well, would this stem from your feeling that...
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