Cooper v. State
| Decision Date | 08 July 1976 |
| Docket Number | No. 45966,45966 |
| Citation | 336 So.2d 1133 |
| Parties | Vernon Ray COOPER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Richard W. Ervin, III, Public Defender, and Judith J. Dougherty, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
Vernon Cooper was convicted of the robbery of a grocery store in Pensacola and the first degree murder of Pensacola Deputy Sheriff Charles Wilkerson. He was sentenced to death by the trial judge following the jury's advisory sentence of death. We have jurisdiction to review this case under Article V, § 3(b)(1) of the Florida Constitution.
Cooper admitted at trial that he and one Steve Ellis robbed the grocery store, and that as they were making their escape in Cooper's black Camaro they were stopped by Deputy Wilkerson, who had stationed himself close to Interstate 10 in order to close off a possible escape route. There was conflicting testimony as to what then transpired. After being stopped, either Cooper or Ellis walked to Deputy Wilkerson's patrol car and fired two shots into his head. He was killed instantly.
A prompt report of Wilkerson's death caused officers Bates and Joy to begin patrolling Interstate 10. They observed and stopped the Camaro after it had crossed into Alabama. Ellis, who was driving, left the Camaro and approached Bates, who began to frisk him. Joy approached the Camaro, observed Cooper sitting in the passenger's seat, and returned to his patrol car. While doing so, he heard a shotgun fired from inside the Camaro. At that moment Ellis pulled a gun on Bates, but Bates reacted faster and shot Ellis fatally. Cooper then drove off in the Camaro. Both the officers fired several shots and gave chase, but Cooper escaped into the countyside. Cooper was captured the next day, with a shotgun in his possession, after a manhunt by over four hundred persons.
Before us Cooper has argued that at least seventeen errors marred his trial. Many of these alleged errors are devoid of merit and deserve only passing discussion. 1 A few require more extensive analysis.
,1. Inadmissible statements. Cooper raises a threshold issue of whether he was properly advised of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and whether a subsequent statement was voluntarily given. The arresting officer, acting to insure Cooper's safety, placed him in a squad car and informed him of his constitutional rights. Cooper then acknowledged his understanding of his rights and was taken to a temporary headquarters set up by the police. He was given a refreshment, and Alabama officers entered the car. He was then questioned for a short time, at which time he told the same story he would later tell at trial. Although there were some members of the search party in the area around the car at this time, they were orderly and were not shown to have made threats of any sort. The trial judge made a thorough inquiry into these matters, and he concluded that the warning was understood and the statements voluntarily given.
We find no reason to reverse the trial judge's determination. The factual circumstances were not inherently intimidating. The trial judge properly inquired to determine whether Cooper was coherent and aware of what he was doing. 2 The state had the burden to prove voluntariness by a preponderance of the evidence, 3 and the trial judge did not err in finding that the burden was carried.
2. State violations of criminal rules. Cooper seeks a reversal of his conviction on the ground that the state violated the rules of criminal discovery. On Wednesday, June 12, 1974, five days prior to trial, the state provided defense counsel with the names of seven witnesses and informed him of the existence of a four-hour tape recording of police messages which had been recorded by a private citizen tuned in to the broadcast frequency of the sheriff's office. The state's attorney had learned of these witnesses and the tape only a few days earlier. Defense counsel moved for a continuance in order to conduct discovery and study any new evidence. A hearing was held, after which the motion was denied with leave to ask for reconsideration should any relevant new matters be uncovered. On the morning of Monday, June 17, 1974, defense counsel renewed his motion for a continuance. Again a hearing was held and the motion was denied. At both hearings it was uncontroverted that the state's attorney supplied defense counsel with the new witnesses' names soon after he learned of them, and that all but one were in possession of information which was identical to that known by other, previously identified witnesses. Only one of these witnesses was called to the stand during the trial, and he only testified for a few minutes.
The only new evidence of any significance to emerge from these late revelations was the tape, which served to place in chronological order the various pieces of other evidence. Defense counsel failed to complete his review of the tape prior to trial due to his unwillingness to retain possession of the tape out of the presence of the state attorney, fearing the consequence of possible damage to the tape.
As the trial date nears, a prosecutor has the duty under Rule 3.220(f) to 'promptly disclose' previously unidentified witnesses and material. A delay of days Our rules were not designed to eliminate the onerous burdens of trial practice. Their purpose was to avail the defense of evidence known to the state so that convictions would not be obtained by the suppression of evidence favorable to a defendant, or by surprise tactics in the courtroom. While death penalty cases command our closent scrutiny, it is still the obligation of an appellate court to review with caution the exercise of experienced discretion by a trial judge in matters such as a motion for a continuance. We cannot say that the judge's discretion was palpably abused in this case. 5
might be sufficiently prompt where several months remain before trial, but where a complex trial involving a human's life was scheduled to begin in one week, immediate disclosure is dictated by the Rule. Nonetheless, failure to obey the Rule should be remedied in a manner consistent with the seriousness of the breach. Relevant evidence should not be excluded from the jury unless no other remedy suffices. 4 Here the trial judge properly denied the initial request to postpone the trial on the ground that any prejudice could be best assayed after defense counsel had an opportunity to depose the witnesses. By directing the state's attorney to act speedily in making these witnesses available, the trial judge did all that was reasonably required at that time. When he later reconsidered the motion, the witnesses' testimony was found to be cumulative and non-prejudicial. The only hardship then shown by the defense was the failure to have listened to all of the tape, causing an increased burden on defense counsel during the week of the trial. The trial judge concluded that there was no prejudice to Cooper's defense, and that the increased workload was in part the result of a tactical decision by the defense rather than the state's breach of the rules
On the third day of trial, another breach of Rule 3.220(f) became apparent when the state announced that a ballistics expert had been inadvertently left off its list of witnesses. In accordance with our holding in Richardson v. State, 246 So.2d 771 (Fla.1971), the trial judge held a lengthy hearing to determine whether the defense had been unfairly surprised. He ascertained that there was no surprise. The defense had learned that a ballistics test was being performed as early as February 1974, in the course of deposing a witness. During March 1974, defense counsel's investigator spoke to the state's expert and requested that a copy of any ballistics report be sent to defense counsel. The investigator customarily placed memorands summarizing his activities in counsel's case file, and there was no showing that this did not occur in this instance. For this reason, defense counsel should at least have been aware that a request for any ballistics report had been made and that the investigator had been in contact with this particular expert. Additionally, the state attorney informed the defense one month before trial that the gun which had in Ellis' possession when he was apprehended and fatally shot was not the same gun which had fired the fatal shots at Deputy Wilkerson. This fact was the substance of the expert's testimony at trial. It must have been obvious to defense counsel that a ballistics report had been received by the state, and that the state was going to attempt to prove that Cooper himself fired the fatal shots, rather than relying solely upon a felony-murder theory.
Once again the state may have violated a Rule. But when that fact was discovered, the trial judge properly denied the request to exclude the witness or to recess the trial to enable defense counsel to obtain a ballistics expert of his own. Seeking a less drastic remedy, he recessed the court to allow the defense counsel to depose the expert
before he was called to the stand. Since the defense should have been aware of the state's proposed proof by reason of information already known to it, the trial judge acted within the scope of his discretion to remedy whatever prejudice might have resulted from the state's breach.
Cooper attacks the sentencing aspect of his trial on several grounds.
1. Proffers in mitigation. His first alleged error was the trial court's refusing, on grounds of relevance, proffered testimony concerning Cooper's employment prior to the crime, Ellis' reputation for violence, and Cooper's attempts to avoid Ellis on some prior occasions. Defense counsel sought to...
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