Coney v. State

• Decision Date: 05 January 1995
• Docket Number: No. 80072,80072
• Citation: 653 So.2d 1009
• Parties: 20 Fla. L. Weekly S16, 20 Fla. L. Weekly S204, 20 Fla. L. Weekly S255 Jimmie Lee CONEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1009

653 So.2d 1009

20 Fla. L. Weekly S16, 20 Fla. L. Weekly S204,

20 Fla. L. Weekly S255

Jimmie Lee CONEY, Appellant, v. STATE of Florida, Appellee.

No. 80072.

Supreme Court of Florida.

Jan. 5, 1995.

Rehearing Denied April 27, 1995.

Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for appellant.

Robert A. Butterworth, Atty. Gen., and Anita J. Gay, Asst. Atty. Gen., Miami, for appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Jimmie Lee Coney. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const. We affirm.

Jimmie Coney set his putative jailhouse lover ablaze. Coney was incarcerated in the Dade Correctional Institution (DCI) serving a 420-year sentence for sexual battery, robbery, burglary with assault, and attempted murder, all arising from the assault of a twelve-year old girl in 1976. While at DCI Coney's homosexual lover, Patrick Southworth, spurned him. Coney obtained a key to Southworth's cell, entered at about 5 a.m., April 6, 1990, doused him with a flammable liquid, and set him afire. Southworth was burned over a large portion of his body, remained conscious for several hours, lapsed into unconsciousness, and died the following day. No one saw the crime take place except Southworth, who awoke when the liquid was splashed on him. An empty "butt can" was found under Southworth's bunk, and a shoebox containing empty soda cans, tissue paper, and cell keys was found in a garbage container near the fire. The cans contained trace amounts of a flammable liquid and the keys fit Southworth's cell door.

A prison official testified at trial that Southworth told him shortly after he was burned that when he felt the liquid poured on him he looked up and saw James Coney. He said Coney set him on fire because he, Southworth, is a homosexual. The paramedic who treated the victim testified that Southworth told him that his lover set him on fire because he, Southworth, left him. The prison officer who accompanied Southworth to the hospital testified that Southworth told him that Jimmie Coney did it because he, Southworth, would no longer have sex with him.

Inmate Young testified that a week before the murder Coney asked him to get some lacquer thinner from the prison auto shop. Young gave him the liquid in a soda can. Inmate Hoover testified that Coney and Southworth were often seen together touching and that Coney introduced Southworth to Hoover as "his boy," i.e., his homosexual lover. On the day before the murder, Coney seemed angry at Southworth and told Hoover, "I'm going to get that motherfucker.... I'm going to burn his ass." Coney's cellmate, inmate Jones, testified that at 4 a.m. on the night of the murder, Coney awoke, took the shoebox later found near the fire from under his bed, poured paint thinner from two soda cans into a "butt can," left the cell, and returned later announcing, "I got the key."

Coney was convicted of first-degree murder and arson. The State put on the following witnesses during the penalty phase: Former Assistant State Attorney Jacobs testified concerning the details of Coney's prior rape of an eighteen-year-old woman who had car trouble. Coney abducted her, bit her on the face and leg, and raped her. Next, a young woman testified that Coney forced his way into her house when she was twelve years old and sexually assaulted and strangled her, leaving her for dead. The woman's mother testified concerning her daughter's condition when she, the mother, arrived home following the assault. Coney, in turn, put on eight witnesses, including relatives who testified concerning his childhood and upbringing. The jury recommended death on the first-degree murder charge by a seven-to-five vote, and the judge imposed death, finding five aggravating and no mitigating circumstances. ¹ The judge imposed a thirty-year consecutive sentence on the arson charge. Coney appeals his convictions and sentences, raising ten issues. ²

Coney first claims that the trial court erred in failing to give a requested jury instruction on dying declarations. As noted above, three State witnesses gave key testimony concerning Southworth's statements to them before he died; two testified that Southworth said that Coney did it. Defense counsel requested the following instruction:

A statement claimed to have been made by the deceased, Patrick Southworth, has been placed before you. That statement is claimed to have been made while Patrick Southworth was conscious of immediate and impending death. Such a statement should always be considered with caution and be weighed with great care to make certain that Patrick Southworth was conscious of immediate and impending death.

Therefore, you must determine from the evidence that Patrick Southworth's statement was made while he was conscious of immediate and impending death.

If you conclude that Patrick Southworth's statements were not made when he was conscious of immediate and impending death, you should disregard it.

The court refused to give the instruction, concluding that it would be error to do so.

This Court addressed this issue in Soles v. State, 97 Fla. 61, 119 So. 791 (1929), wherein we ruled that it would be error to give a special instruction on dying declarations:

"That the judge is to pass on the preliminary condition necessary to the admissibility of evidence is unquestioned. It follows, as of course, that, since a consciousness of impending death is according to the foregoing principles legally essential to admissibility, the judge must determine whether that condition exists before the declaration is admitted.

"After a dying declaration, or any other evidence has been admitted, the weight to be given to it is a matter exclusively for the jury. They may believe it or may not believe it; but, so far as they do or do not, their judgment is not controlled by rules of law. Therefore, though they themselves do not suppose the declarant to have been conscious of death, they may still believe the statement; conversely, though they do suppose him to have been thus conscious, they may still not believe the statement to be true. In other words, their canons of ultimate belief are not necessarily the same as the preliminary legal conditions of admissibility, whose purpose is an entirely different one. It is, therefore, erroneous for the judge, after once admitting the declaration, to instruct the jury that they must reject the declaration, or exclude it from consideration, if the legal requirement as to consciousness of death does not in their opinion exist. No doubt they may reject it, on this ground or any other; but they are not to be expected to follow a definition of law intended for the Judge."

Id. at 64-65, 119 So. 791 (citations and emphasis omitted) (quoting 3 John Henry Wigmore, Wigmore on Evidence Sec. 1451 (2d ed. 1923)).

Whether a hearsay statement is nevertheless reliable and admissible because it was made with the knowledge of impending doom is a legal question for the judge. Once the judge decides in favor of admissibility, the statement passes into the realm of the trier of fact to determine weight, character, and credibility, and it would be error for the judge to comment on it. See Fenelon v. State, 594 So.2d 292, 294 (Fla.1992) ("[T]he judge should not invade the province of the jury by commenting on the evidence or indicating what inferences may be drawn from it."). ³ We find no error in the present case.

Coney next claims that the court erred in conducting in his absence two conferences: a pretrial meeting between the lawyers and judge, and a voir dire bench conference. As to the pre-trial meeting, Florida Rule of Criminal Procedure 3.180 states that "the defendant shall be present ... at any pretrial conference, unless waived by the defendant in writing." Here, although the defense lawyer purported to waive Coney's presence at the meeting, there was no express waiver by Coney himself. This was error. See Garcia v. State, 492 So.2d 360 (Fla.), cert. denied, 479 U.S. 1022, 107 S.Ct. 680, 93 L.Ed.2d 730 (1986). A review of the record, however, shows that the meeting was a routine status conference prompted by a delayed trial date, wherein several technical, procedural, and legal issues were discussed. ⁴ Coney's presence would not have assisted the defense in any way. The error was harmless. Id.

As to Coney's absence from the bench conference, this Court has ruled:

[The defendant] has the constitutional right to be present at the stages of his trial where fundamental fairness might be thwarted by his absence. Florida Rule of Criminal Procedure 3.180(a)(4) recognizes the challenging of jurors as one of the essential stages of a criminal trial where a defendant's presence is mandated.

Francis v. State, 413 So.2d 1175, 1177 (Fla.1982) (citations omitted). Florida Rule of Criminal Procedure 3.180 provides:

(a) Presence of the Defendant. In all prosecutions for crime the defendant shall be present:

....

(4) at the beginning of the trial during the ... challenging ... of the jury.

Fla.R.Crim.P. 3.180(a).

We conclude that the rule means just what it says: The defendant has a right to be physically present at the immediate site where pretrial juror challenges are exercised. See Francis. Where this is impractical, such as where a bench conference is required, the defendant can waive this right and exercise constructive presence through counsel. In such a case, the court must certify through proper inquiry that the waiver is knowing, intelligent, and voluntary. Alternatively, the defendant can ratify strikes made outside his presence by acquiescing in the strikes after they are made. See State v. Melendez, 244 So.2d 137 (Fla.1971). Again, the court must certify the defendant's approval of the strikes through proper inquiry. Our ruling today clarifying this issue is prospective only.

Juror...