Brown v. State, 48229

Citation367 So.2d 616
Decision Date01 February 1979
Docket NumberNo. 48229,48229
PartiesHenry BROWN, Appellant, v. STATE of Florida, Appellee.
CourtUnited States State Supreme Court of Florida

Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, Miami, for appellant.

Jim Smith, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Appellant Brown was convicted of first-degree murder and sentenced to death following a jury recommendation of life imprisonment. Our review of this case is predicated on article V, section 3(b)(1) of the Florida Constitution and section 921.141(4), Florida Statutes (1975).

FACTS

On August 3, 1973, Abraham Goldstone drove to a shopping mall to cash a social security check. When he failed to return, his wife reported him missing. That evening a police officer saw five young men pushing a car later identified as belonging to Goldstone. All fled when the officer approached, but he caught up with two and they in some manner implicated Brown. The car was impounded, and an examination disclosed Goldstone's bankbook in the trunk, scuff marks on the interior of the trunk lid, bloodstains and bloodstained towels in the car, and at least one fingerprint later identified as Brown's. In the early morning hours of August 4, officers went to Brown's home, informed his father of their purpose, told Brown his rights, and questioned him. He admitted possession of the car and said he got it from Steve Benyard. Brown was then arrested for possession of a stolen car. After Brown was released, officers developed additional data linking Brown to Goldstone's disappearance and, after again informing Brown of his rights, they questioned him further. He amplified his earlier statement by revealing that he had come across Benyard and Mack Simmons with the car in a school parking lot and that Benyard had said he obtained it at the Sky Lake shopping mall in North Miami Beach.

In the due course of investigation officers discovered Goldstone's body at a small lake near the shopping mall. Goldstone had died from drowning, but his body showed that he also had been shot in the shoulder and hit about the head. On August 10, Simmons was arrested for first-degree murder. Brown and Simmons were then brought together by police officers and told their rights. Simmons was asked whether Brown was involved in the killing and answered in the affirmative. (At trial this statement was introduced through the testimony of the interrogating officer, over objection by the defense on the ground that the statement was inadmissible hearsay.) After being advised of his rights once again, Brown conceded to the police that he was implicated in Goldstone's death.

He related that on August 2 Benyard and Simmons asked him to join them in robbing a bank. He had agreed, and on August 3 they went to the shopping mall to steal a car. They picked Goldstone's car, and when he approached to enter his vehicle Benyard struck him, forced him into the car, and then forced him into the trunk. They drove

to Simmons' home. Simmons and Brown wanted to leave Goldstone in an isolated area, but Benyard wanted to kill him. They drove to the lake and Benyard forced Goldstone into the water. All three of them struck Goldstone several times with their fists and with boards, and both Brown and Benyard took turns shooting at Goldstone with Benyard's gun. They left Goldstone for dead, but as they started to leave they observed Goldstone climbing out of the lake. They returned to the water's edge, forced their victim back into the water, and Benyard then held Goldstone below the surface until he was dead. The three conspirators split Goldstone's money, and Brown received Goldstone's watch after asking Benyard's permission to take it. On the night of the crime, but after the police had recovered Goldstone's car, Benyard had come to Brown's home, had threatened and hit Brown, and had taken Goldstone's watch. The facts revealed in Brown's confession are consistent with the physical evidence of the crime and the testimony of Timothy Gordon, a friend of the conspirators who visited them at Simmons' house on the day of the murder.

PROCEDURE

On October 10, Brown was indicted for first-degree murder. He entered a negotiated plea of guilty to second-degree murder, which was accepted by the trial judge. A condition of the plea was that Brown aid the state in the prosecution of Benyard. Brown submitted to a polygraph test and went before the grand jury. He later refused to testify at Benyard's trial, as a consequence of which the negotiated plea was vacated and a plea of not guilty was entered by the trial judge when Brown stood mute. Brown was brought to trial on a charge of first-degree murder, but a hung jury necessitated a second trial. It is from Brown's conviction and sentence in the second trial that review is now sought.

Following Brown's conviction for first-degree murder, a separate sentencing trial was held pursuant to section 921.141(1), Florida Statutes (1975). The jury there learned that Brown was sixteen years old at the time of the crime, that he was not under the influence of any mental or emotional disability, and that he claimed to have fired away from Goldstone, not at him, when the conspirators took turns shooting at him in the lake. The defense elicited testimony that Simmons and Benyard had not received the death penalty, but the trial judge held this revelation to be irrelevant. With the "door opened" by this testimony, however, the trial court permitted the state to show that Brown and Simmons had each negotiated second-degree murder pleas in return for testifying against Benyard, that each had refused to testify (as a consequence of which the state was unable to go to trial against Benyard), and that Benyard was now immune from criminal prosecution. 1 On this record, the jury recommended that Brown be sentenced to life imprisonment.

The trial judge sentenced Brown to death, finding Brown's age at the time of the crime to be the only possible statutory mitigating circumstance but rejecting its significance because Brown "is mature, well beyond his age, and does not appear or act as a juvenile." The trial judge found that Brown's lack of a significant prior criminal record was not a mitigating circumstance because he had an extensive, intervening record of arrests and charges following an escape from the county jail. In regard to aggravating circumstances, the trial judge found that the murder of Goldstone was especially heinous, atrocious, and cruel, and that it was committed during the course of a robbery and kidnapping.

ISSUES

Before us Brown has argued that at least eight errors marred his conviction and sentence. His challenge to the constitutionality of Florida's death penalty statute does not warrant discussion. 2 Additionally, there is no merit whatsoever to his assertions that comments of the trial judge prejudiced his trial, 3 that his confession was involuntary, or that faulty instructions were submitted to the jury. We believe it necessary, however, to discuss fully the four remaining contentions. These are (1) that the double jeopardy clause of the Florida and federal constitutions barred his being tried for first-degree murder, (2) that impermissible hearsay evidence was allowed to go to the jury, (3) that reversible error occurred as a result of prosecution comments on the defendant's silence, and (4) that the death penalty is improper under the circumstances of this case.

(a) Double Jeopardy

Brown argues that he was unconstitutionally twice placed in jeopardy when the state sought to prosecute him for first-degree murder, since an earlier negotiated plea of guilty to second-degree murder had been "accepted" by the trial judge. He relies principally on this Court's decision in Troupe v. Rowe, 283 So.2d 857 (Fla.1973). The state argues that further prosecution was not barred because Brown refused to testify against Benyard, an understood condition of his bargain which was known to the judge at the time he accepted Brown's "conditional" plea. 4

There are two distinct questions which arise from Brown's plea of former jeopardy. The first is whether jeopardy in fact "attached." The second is whether, if it did, a reprosecution is nonetheless permitted. We agree with Brown that jeopardy had attached once the trial court accepted his plea of guilty following a full inquiry into its factual foundation. We are not led to conclude, however, that under the circumstances of this case there is any constitutional bar to his second trial.

1. Jeopardy did attach. Article I, section 9 of the Florida Constitution provides that "No person shall . . . be twice put in jeopardy for the same offense . . . ." The fifth amendment to the United States Constitution, applicable to the states through the due process clause of the fourteenth amendment, 5 is substantially identical. The policy of this constitutional right is succinctly stated in Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957):

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

The exact points at which jeopardy will "attach" are relatively clear. The United States Supreme Court has held that jeopardy attaches in a jury case when the jury is impaneled and sworn, and in a non-jury trial when the trial judge begins to hear evidence. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). We have held that jeopardy attaches on an unconditional guilty plea when the plea is or...

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