Busby v. State
| Decision Date | 04 November 2004 |
| Docket Number | No. SC02-1364.,SC02-1364. |
| Citation | 894 So.2d 88 |
| Parties | Andrew Darryl BUSBY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Nancy A. Daniels, Public Defender and David A. Davis, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Appellant.
Charles J. Crist, Jr., Attorney General and Cassandra K. Dolgin, Assistant Attorney General, Tallahassee, FL, for Appellee.
Andrew Darryl Busby appeals his conviction of first-degree murder and sentence of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Based on our determination that the trial court committed reversible error in the denial of a challenge for cause, we reverse the conviction and vacate the sentence.
Although the reversal today renders the evidence, procedures, findings, and facts a total nullity, the facts and proceedings upon which the jury error operated in this case are important for analysis of the error and its impact. Busby was convicted of the July 3, 2000, first-degree murder of Elton Ard. Ard was a fellow inmate of Busby's at the Columbia Correctional Institution (CCI). Ard was Busby's cellmate and was one of seven potential victims targeted by Busby and another inmate, Charles Globe. Evidence ascertained during trial indicated that the pair targeted Ard because he was harassing Busby.
On the morning of July 3, 2000, Ard was found dead in the cell he shared with Busby. Busby and Globe were also locked in the cell. An autopsy revealed that Ard had died from strangulation. In trial testimony, the medical examiner stated that Ard had injuries consistent with blunt force blows to his head, which did not contribute to his death. A garrote found in the cell was consistent with the pattern of bruising found on Ard's neck. Evidence recovered from the murder scene included a handwritten sign, photographs of writings on the prison wall, the magic marker used to make the writings, photographs of bloody fingerprints, a cigarette lighter found in Ard's hand, and a cigarette found in Ard's mouth.
After a series of interviews beginning around noon on July 3, 2000, both Busby and Globe confessed to killing Ard. At trial, the prosecution relied on Busby's July 3 statement as well as subsequent statements in which Busby revealed the sequence of events that transpired the night Ard was murdered. Busby did not testify in his own defense, but submitted a videotaped statement given by Globe in which Globe asserted responsibility for Ard's death.1 The defense also offered the testimony of a jailhouse friend of Busby's who stated that Busby was small in stature and had been subjected to harassment while in prison.
On March 22, 2002, after the close of the evidence, instructions, and arguments by counsel, the jury found Busby guilty of first-degree murder. The penalty phase commenced during which both the prosecution and defense submitted evidence. At the close of the penalty phase, the jury voted eleven to one to recommend the death penalty. On May 16, 2002, the trial court followed the jury's recommendation and sentenced Busby to death.
The trial court found four statutory aggravating factors2 and no statutory mitigating factors, and listed fifty-four nonstatutory mitigating factors that were presented by the defense.3 The court noted that some of the nonstatutory mitigating factors were repetitious and stated that each of the aggravating factors in this case, standing alone, would be sufficient to outweigh all the mitigation that was presented.
Busby has asserted thirteen issues on appeal. We conclude that the trial court's error in denying Busby's challenge for cause against potential juror Kim Lapan requires reversal of Busby's conviction, and, therefore, decline to address the remaining twelve issues.4 "Where an appellant claims he was wrongfully forced to exhaust his peremptory challenges because the trial court erroneously denied a cause challenge, both error and prejudice must be established." Conde v. State, 860 So.2d 930, 941 (Fla.2003). Based on the record before us, we conclude that Busby satisfies both prongs of that standard.
According to Busby, the trial court erred when it refused to grant Busby's challenge for cause against Kim Lapan, a former guard of death row inmates at Florida State Prison. He argues that Lapan's acknowledged biases against death row inmates and admitted willingness to execute persons who had committed premeditated murders presented reasonable doubts as to his impartiality. We agree.
Lapan was not only a former correctional officer at Florida State Prison, he had worked directly on death row. He stated during voir dire that some of the correctional officers involved in the prison death of Frank Valdez5 were friends of his. During voir dire, the following exchange occurred between Lapan and defense counsel:6
The defense moved to strike Lapan for cause after individual voir dire based on his experience as a correctional officer on Florida's death row. Defense counsel expressed doubt that Lapan could set aside those...
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Morgan v. Com., 2003-SC-0489-MR.
...of prejudice since they require an objectionable juror to have sat on the jury before reversal will be granted. See Busby v. State, 894 So.2d 88, 96-97 (Fla.2004)(explaining that "expenditure of a peremptory challenge to cure the trial court's improper denial of a cause challenge constitute......
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Rigterink v. State
...This Court is the ultimate "arbiter[ ] of the meaning and extent of the safeguards provided under Florida's Constitution." Busby v. State, 894 So.2d 88, 102 (Fla.2004). To protect this right within the "incommunicado" confines of such questioning, the United States Supreme Court created a p......
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Holland v. Tucker
...to challenge peremptorily or otherwise objectedto after his peremptory challenges had been exhausted”); see also Busby v. State, 894 So.2d 88, 96–97 (Fla.2004) (requiring a defendant to “show that an objectionable juror has served on the jury” before finding a defendant was prejudiced by th......
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Morgan v. Commonwealth, No. 2003-SC-0489-MR (Ky. 5/18/2006), 2003-SC-0489-MR.
...of prejudice since they require an objectionable juror to have sat on the jury before reversal will be granted. See Busby v. State, 894 So.2d 88, 96-97 (Fla. 2004)(explaining that "expenditure of a peremptory challenge to cure the trial court's improper denial of a cause challenge constitut......
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...error is preserved. (See this case for extensive discussion of the continuing legal validity of peremptory challenges.) Busby v. State, 894 So. 2d 88 (Fla. 2005) Defendant appeals the trial court’s denial of a peremptory challenge of a juror. The trial court correctly found that defense’s a......
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Trial
...for appeal because the biased juror did not sit. [ United States v. Martinez-Salazar , 528 U.S. 304 (2000). But see Busby v. State , 894 So.2d 88, 101-03 (FL 2004) (disagreeing with Martinez-Salazar and holding that if the defendant peremptorily strikes the objectionable juror, exhausts his......
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Back to the future: how Rodriguez v. Lagomasino got it right in 2008 and why modern voir dire should be guided by 1929's Johnson v. Reynolds.
...granted an additional number of peremptory challenges equal to the number of challenges for cause that were denied, as in Busby v. State, 894 So. 2d 88, 97 (Fla. 2004), cert. denied, 545 U.S. 1150 (2005). On appeal, the trial court's decision is reviewed for manifest error, and the cases re......
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The Preservation of Error During Voir Dire.
...2d 1266 (Fla 4th DCA 1985). (23) Aquila v. Brisk Transp., L.P., 170 So. 3d 924, 926 (Fla. 4th DCA 2015). (24) Id. (25) Busby v. State, 894 So. 2d 88, 99 (Fla. 2004) ("[U]se of a peremptory challenge need not be supported by a reason, so long as the challenge is not used to discriminate agai......