Bruno v. State

• Citation: 16 Fla. L. Weekly 65,574 So.2d 76
• Decision Date: 03 January 1991
• Docket Number: No. 71419,71419
• Parties: 16 Fla. L. Weekly 65 Michael George BRUNO, Sr., Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 76

574 So.2d 76

16 Fla. L. Weekly 65

Michael George BRUNO, Sr., Appellant, v. STATE of Florida, Appellee.

No. 71419.

Supreme Court of Florida.

Jan. 3, 1991.

Rehearing Denied Feb. 27, 1991.

Richard L. Jorandby, Public Defender, and Steven H. Malone and Richard B. Greene, Asst. Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen. and John M. Koenig, Jr., Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Michael G. Bruno, Sr., was convicted of the first-degree murder of Lionel Merlano. The jury recommended death by a vote of eight to four, and the judge imposed the sentence of death. We have jurisdiction of this appeal pursuant to article V, section 3(b)(1) of the Florida Constitution.

Direct evidence of how the crime occurred was furnished by Bruno's fifteen-year-old son, Michael, Jr., and by Bruno himself in the form of a taped confession. According to Michael, Jr., he and his father went to Merlano's apartment on the night of August 8, 1986. After drinking some beer and listening to the stereo, Bruno went to the bathroom. Later, when Merlano was playing with the stereo, Bruno pulled a crowbar from the front of his trousers and began hitting Merlano. The man fell to the floor but appeared to still be alive. Bruno told Michael, Jr., to bring him a gun from under the sink in the bathroom. Michael, Jr., obtained the gun and handed it to his father. Bruno put a pillow over the gun and shot Merlano twice in the head. Bruno made several trips back to Merlano's apartment for the purpose of stealing the stereo and its associated equipment. Merlano's body was not found until August 11, 1986.

In his taped confession, Bruno said that he and his son drank some beers with Merlano in his apartment. Bruno was carrying a crowbar. Merlano began playing his stereo and "started getting loud with my son." Ultimately, a fight erupted between Bruno and Merlano. Bruno hit Merlano with the crowbar several times. Merlano retrieved a pistol from his room, but Bruno hit him again and thought he knocked Merlano unconscious. When Bruno began to walk away, Merlano reached for the gun, but Bruno grabbed it and shot him in the head once or twice.

In addition, Christopher Tague testified that Bruno borrowed his .22-caliber revolver in late July or early August of 1986. On August 8, 1986, Tague testified that Bruno borrowed another man's car so that he and his son could go to the apartments where Merlano lived. Bruno returned alone about one-and-a-half to two hours later. Tague also testified that on August 11, 1986, at Bruno's request, Tague, Bruno, and Jody Spalding stopped at Merlano's apartment because Bruno wanted to remove some "prints." Bruno could not get into the apartment, so they left. Diana Liu testified that on the night of the murder she was in the pool area at Merlano's apartment complex. Bruno asked her if she wanted to go to another party, stating "[i]t's a murder party. It's going to be a great killing." Arthur Maheu testified that on a Saturday morning in early August 1986, he observed a .22-caliber pistol under the pillow on which Bruno was laying. Bruno told Maheu that the stereo equipment "came from this house where he killed this guy, and he ransacked it."

Jody Spalding testified that early in the morning on August 9, 1986, Bruno told him "that he had just gotten into a big fight with this guy and he was dead." He further told him "that he was going to get some equipment and stuff from the guy's house." Later that morning, Jody saw Bruno with a VCR and other electronic equipment, and he told him that "he got it from the guy's house who he killed." They then left together to go to Bruno's parents' house, but on the way they stopped at a canal into which Bruno threw what looked to be a "steel bar" wrapped up in a cloth. They went to another canal into which Bruno threw a gun also wrapped in cloth. At another canal Bruno threw in the cylinder from the gun. Later in the week, Bruno called Jody and asked him to throw away a pair of shoes for him because he had gotten blood on them when he was "murdering this guy." An expert firearms examiner testified that one of the projectiles recovered from the victim was fired from the gun retrieved from the canal.

Bruno first argues that his confession should have been suppressed because it was obtained by coercion and improper promises with respect to the treatment of his son. The record reflects that when the police first approached Bruno he told them that he was not involved in the killing. After obtaining other evidence, the police arrested Bruno and took him to the station. Detective Edgerton, who was in charge of the investigation, told Bruno that while the police did not have any evidence linking his son to the crime, they thought his son was involved. At some point that evening, he also told him that if Michael, Jr., was involved, he would likely go to jail. Following Miranda ¹ warnings, Bruno told the officers that he had already told them everything he knew. Thereupon, the police terminated the questioning.

Later, when Lieutenant Manfre was checking on Bruno pursuant to department regulations, Bruno initiated a conversation with Manfre and began expressing concern about his son who was also being held by police at that time. When asked what would happen to his son, Manfre told Bruno that "only he would know what would happen to his son because he would know what the total involvement of his son was in this case." Bruno then indicated that he wanted to talk about the case. Manfre told Bruno that he did not want to take any statements from him but that if he wanted to talk to Detective Edgerton, Manfre would notify the detective. Manfre then told Edgerton that Bruno desired to make a statement. Edgerton once again gave Bruno the appropriate Miranda warnings, after which Bruno made a recorded confession.

While Bruno gives a different version of these events, the trial judge could properly find that no improper promises were made. Even taking into account that Detective Edgerton later testified at the trial that he had told Bruno that if he gave a sworn statement exculpating his son, his son would not be charged, the record supports the conclusion that the confession was freely and voluntarily made. The police legitimately believed that Bruno's son was involved but recognized that if Bruno gave a sworn statement exculpating his son there would be no basis upon which his son could be charged. Statements suggesting leniency are only objectionable if they establish an express quid pro quo bargain for the confession. State v. Moore, 530 So.2d 349 (Fla.2d DCA 1988). Before taking his confession, Edgerton specifically told Bruno that the police would not make any promises to either Bruno or his son, and if he wanted to give a statement, it was of his own accord. There was no police overreaching, and the fact that Bruno's confession was motivated in part by concern over the welfare of his son does not provide a basis for suppressing the confession.

Relying upon Haliburton v. State, 514 So.2d 1088 (Fla.1987), Bruno further argues that the police should have stopped questioning him when an attorney hired by his family to represent him called the station and asked the police not to take any statements from Bruno. We need not decide whether a telephone request to cease questioning was sufficient to trigger the principle of Haliburton because there was sufficient evidence to support the judge's conclusion that this call came after Bruno confessed. Moreover, Haliburton does not have retroactive application and Bruno's confession occurred before our decision in Haliburton. Jones v. State, 528 So.2d 1171 (Fla.1988). Bruno's remaining attacks on his confession are totally without merit.

Bruno also assails the testimony of two witnesses who said they did not immediately report their activities to the police because they were afraid that Bruno might harm them or their families. Absent direct threats attributable to the defendant, testimony such as this should be limited to rebuttal after the witness's credibility has been attacked for not promptly reporting the defendant's conduct. However, defense counsel failed to preserve this point by making appropriate objections. In any event, in view of the overwhelming evidence of guilt, the admission of this testimony would constitute no more than harmless error.

Bruno was also convicted of robbery. Asserting that there was insufficient evidence of robbery, he attacks both this conviction and the instruction on first-degree felony murder which was predicated upon the underlying crime of robbery. He contends that the taking of the stereo was nothing more than an afterthought that was unrelated to his attack on Merlano. However, the state presented evidence that one month prior to the murder Bruno asked Steve Mizella if he could use his car to borrow a bunch of stereo equipment. On the night of the killing, Bruno borrowed Mizella's car and said he was going "[t]o get stereo equipment." While at Merlano's apartment he was admiring the stereo just prior to hitting Merlano over the head with a crowbar. When he took his son back home, Bruno told Spalding that he was going back to get some stereo equipment from the "guy's house who he killed." He thereafter took Spalding's mother's car to remove the electronic equipment. From this sequence of events, the jury could reasonably conclude that Bruno possessed the requisite intent to commit the crime of robbery at the time he committed the murder.

Bruno also contends that the trial judge erred in failing to properly instruct the jury on excusable homicide. The judge gave the short-form standard jury instruction on excusable homicide which has been held to be inadequate in Blitch v. State, 427 So.2d 785 (Fla.2d DCA 1983), and Bowes v. State, 500 So.2d 290 (Fla.3d DCA 1986), review denied, 506 So.2d 1043 (Fla.1987)....