Busby v. State

Decision Date04 November 2004
Docket NumberNo. SC02-1364.,SC02-1364.
Citation894 So.2d 88
PartiesAndrew Darryl BUSBY, Appellant, v. STATE of Florida, Appellee.
CourtFlorida 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.

Trial Court's Error in Finding Lapan Competent to Serve

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

[By the defense]
Q Mr. Lapan, would you say that you oppose or you are in favor [of the death penalty]
A I am in favor of it. I worked in Florida state prisons.
Q Did you work on death row?
A Yes.
. . . .
Q Based upon your experiences as a correctional officer, if I told you that you would end up learning this homicide occurred inside a prison, do you think that would affect your ability to sit as a juror?
A Possibly.
Q Would that be something that knowing the position that you held before, you might consider something an aggravating circumstance beyond what the judge says, based on your own personal experiences?
A Possibility.
Q We talk about aggravating circumstances. You understand that's what the judge is going to read as far as the circumstances that are recognized by law to possibly warrant a death penalty?
A Yes.
Q And mitigating circumstances being those circumstances the law says you can consider as to whether a life imprisonment sentence might be appropriate. You understand that as well?
A Yes.
Q Knowing that you have worked on death row as well, you understand these days life means life?
A Right.
Q Knowing that, do you think that based on your experiences as a correctional officer that worked on death row, that there might be things in your mind that are aggravating circumstances that you would consider outside those that the judge read you, particularly once you learn that this homicide was —
A No. I don't think so. I think I can determine what the judge wants and go by what they feel are the parameters we are supposed to stay within.
Q So what you are saying, even though you worked as a correctional officer for eight years —
A Yes, sir.
Q — with part of that time spent on death row —
A Yes, sir.
Q — that you don't think that any of your own personal experiences would come into play as far as maybe you think something is an aggravating circumstance that could possibly warrant a death sentence that was not included in the judge's instructions?
A I would like to think I could be openminded enough.
. . . .
Q Do you believe that life in prison is severe enough punishment for someone who is found guilty of premeditated murder?
A No.
Q If — understanding that you have to find Mr. Busby guilty of premeditated murder for us to make it to a second phase?
A Yes.
Q Would that fact be considered by you as an aggravating circumstance that might cause you to vote for death — the judge is not going to tell you that is an aggravating circumstance. But knowing that — to get to the second phase you would have to find Mr. Busby guilty of premeditated murder, do you think that would be something that would weigh in favor of the death sentence in your mind?
A No, I don't think so.
Q Are there any cases that you can think of particularly based upon you working on death row? Are there any cases that you think would automatically warrant the death penalty regardless of aggravating and mitigating circumstances?
A Yes.
Q What would that be?
A Child molesters. Some of the heinous crimes that are committed, the way they murder or kill, what they have done to the victims. Their past history on — you know, can they, you know, what will happen when they have done their time — there isn't time. That's right.
. . . .
Q Are there any other circumstances that you can think of —
A I can't think of any offhand.
. . . .
Q Now you had mentioned someone having been convicted prior of crimes. Might in your mind be something that would cause you to automatically vote for the death sentence?
A Possibly.
Q I think you are anticipating my next question. Is that a situation where no matter what mitigation circumstances are given, vote for death regardless of the mitigating circumstances?
A Unless there is extremely — proof is proof. I am not understanding some of the questions. They are so hypothetical. That, you know —
Q I am going to clarify this one question involving a situation where someone had previously been convicted of a crime. What I am asking is, is that one of those situations where no matter how much proof of mitigation —
A No.
Q — you would say, no, that crime is a death penalty every time in my mind?
A No.
Q While you were at F.S.P., were you ever the victim of any assaults?
A Yes.
Q Do you think that is something in your own mind if you learn that this had taken place in a correctional institution would factor in regardless of what the judge said as far as affecting your mind?
THE COURT: You can answer that if that the going to affect your decision in this case.
BY MR. DOSS [The Defense]:
Q If the judge instructs you to set your personal feelings aside, would that be something you can or can't set aside?
A I believe I can.

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...

To continue reading

Request your trial
90 cases
  • Morgan v. Com., 2003-SC-0489-MR.
    • United States
    • United States State Supreme Court — District of Kentucky
    • 19 Enero 2006
    ...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......
  • Rigterink v. State
    • United States
    • Florida Supreme Court
    • 30 Enero 2009
    ...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......
  • Holland v. Tucker
    • United States
    • U.S. District Court — Southern District of Florida
    • 3 Abril 2012
    ...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......
  • Morgan v. Commonwealth, No. 2003-SC-0489-MR (Ky. 5/18/2006), 2003-SC-0489-MR.
    • United States
    • United States State Supreme Court — District of Kentucky
    • 18 Mayo 2006
    ...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......
  • Request a trial to view additional results
4 books & journal articles
  • The trial (conduct of trial, jury instructions, verdict)
    • United States
    • James Publishing Practical Law Books The Florida Criminal Cases Notebook. Volume 1-2 Volume 1
    • 30 Abril 2021
    ...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......
  • Trial
    • United States
    • James Publishing Practical Law Books Criminal Defense Tools and Techniques
    • 30 Marzo 2017
    ...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......
  • 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.
    • United States
    • Florida Bar Journal Vol. 82 No. 10, November 2008
    • 1 Noviembre 2008
    ...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......
  • The Preservation of Error During Voir Dire.
    • United States
    • Florida Bar Journal Vol. 94 No. 6, November 2020
    • 1 Noviembre 2020
    ...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......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT