Correll v. State
| Decision Date | 14 January 1988 |
| Docket Number | No. 68393,68393 |
| Citation | 13 Fla. L. Weekly 271,523 So.2d 562 |
| Parties | 13 Fla. L. Weekly 271 Jerry William CORRELL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
James R. Valerino, Orlando, for appellant.
Robert A. Butterworth, Atty. Gen. and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for appellee.
Jerry William Correll appeals his four death sentences imposed for the first-degree murders of his ex-wife, Susan Correll, her sister, Marybeth Jones, their mother, Mary Lou Hines, and the Corrells' five-year-old daughter, Tuesday. We have jurisdiction under article V, section 3(b)(1), Florida Constitution.
On the morning of July 1, 1985, the bodies of the four victims were discovered in Mrs. Hines's home in Orlando. All had been repeatedly stabbed and died from massive hemorrhages; the three older victims had defensive type wounds on their hands. A sheriff's department investigator was called to the crime scene and approximately an hour and a half after his arrival encountered Jerry Correll there. Correll was asked for a statement and subsequently went to the sheriff's department where he gave first an oral and then a tape recorded statement. In his statement, Correll indicated that on the night of the murders he had been drinking and smoking marijuana with a woman, who later drove with him to Kissimmee. While at the sheriff's department, Correll consented to having his fingerprints taken and having pictures of the scratches, cuts and bruises on his hands and forearms taken. The next day, Correll was again interviewed and subsequently arrested. After being advised of and waiving his Miranda rights, Correll gave another statement after his arrest. Several bloody fingerprints and palm prints found at the murder scene were later matched to Correll's. Evidence that he had previously threatened to kill his ex-wife was also admitted. In addition, he could not be ruled out as the person whose bloodstains were found at the scene and whose sperm was found in Susan Correll's vagina.
The jury convicted Correll of four first-degree murders and recommended the death penalty with respect to each of them. The trial court found the following aggravating factors: Correll had been previously convicted of another capital offense; the murder of Susan Correll was heinous, atrocious and cruel and was committed during a sexual battery; the murder of Marybeth Jones was committed during a robbery and for the purpose of avoiding arrest; the murder of Tuesday Correll was heinous, atrocious and cruel, committed in a cold, calculated and premeditated manner and was for the purpose of avoiding arrest; and the murder of Mary Lou Hines was heinous, atrocious and cruel. Finding no mitigating factors, the trial court sentenced Correll to death for all four murders.
Correll raises sixteen issues in this appeal, only six of which require discussion. * The first issue concerns the statements he made to police on July 1, 1985, prior to his arrest the following day. Correll contends that these statements should have been suppressed because he was not apprised of his Miranda rights before he gave the statements. Under the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), a suspect involved in a custodial interrogation by law enforcement officials is entitled to the procedural safeguard of the Miranda warning, the key being that the suspect must be in custody. The ultimate inquiry in determining whether a suspect is in custody is "whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977)).
The record indicates that a sheriff's department investigator asked Correll to go to the sheriff's office so that elimination fingerprints could be taken. Correll agreed to this and was taken to the sheriff's office by his brother and sister-in-law. After his arrival, a detective interviewed Correll for approximately half an hour to one hour because he was a family member of the victims and had information which might have been useful in solving the crime. Correll was not under arrest and was free to leave the station at anytime. He never objected to any of the questions and did not refuse to talk. When the interview was over, Correll left the station the same way he arrived, with his brother and sister-in-law. Therefore, we conclude that Correll was not in custody for the purposes of Miranda and the police were not required to advise him of his constitutional rights. See Roman v. State, 475 So.2d 1228 (Fla.1985) (), cert. denied, 475 U.S. 1090, 106 S.Ct. 1480, 89 L.Ed.2d 734 (1986).
The next issue for consideration relates to the admissibility of certain statements made by a witness concerning Susan Correll's fear of Jerry Correll prior to the murders. During Donna Valentine's testimony, the following colloquy occurred:
This is merely a characterization on part of the witness, and I don't think that this is the kind of thing that is anything more than hearsay testimony and opinion testimony on her part.
Whereupon, the court overruled the objection and the following then occurred:
Susan Correll's statements, as related by Valentine, were hearsay. In the absence of an applicable exception, hearsay evidence is inadmissible. § 90.801, Fla.Stat. (1985). It is well settled that the state-of-mind exception to the hearsay rule allows the admission of extra-judicial statements only if the declarant's state of mind is at issue in a particular case or to prove or explain the declarant's subsequent conduct. § 90.803(3)(a), Fla.Stat. (1985). Because Susan Correll's state of mind was not at issue and her statements could not be used to prove Correll's state of mind, the testimony was inadmissible. Hunt v. State, 429 So.2d 811 (Fla. 2d DCA 1983); Bailey v. State, 419 So.2d 721 (Fla. 1st DCA 1982); Kennedy v. State, 385 So.2d 1020 (Fla. 5th DCA 1980). However, in view of the other evidence against Correll, we find that the admission of such testimony was harmless error. See Palmes v. State, 397 So.2d 648 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981).
Correll next argues that the trial court erred in granting the state's motion to redact a portion of his statement taken July 1, 1985. The bulk of the statement dealt with Correll's whereabouts on the night of the murders. In the last portion of his statement, Correll accused Susan Correll of being a drug user and dealer and suggested that there were other people with motives for killing her. The trial court determined that the state was not required to put on Correll's defense and granted the motion to redact this portion of his statement.
Ordinarily, a defendant's statement should be introduced into evidence in its entirety, absent totally extraneous matters. However, the trial court here concluded that the matters contained in the last portion of Correll's statement were irrelevant. We cannot say that the judge abused his discretion in so ruling, particularly since he made it clear that Correll was at liberty to introduce the redacted portion himself. Even Correll must not have believed that the redacted portion was of great significance because he did not seek to introduce it in his case-in-chief, even though he presented several witnesses in his defense.
Correll's next point involves the admission of testimony that Correll had slashed Susan Correll's tires some two years prior to the murders in light of evidence that on the night of the murders, the tires of the man Susan was then dating had been slashed outside the ABC Bar sometime after Correll had seen the two of them inside the bar. Before trial, the state filed a notice of intent to offer similar fact evidence, and a hearing was conducted. Defense counsel objected to the admission of this testimony on the ground that it was too remote in time to be relevant, but the trial court ruled it admissible as it went toward lack of mistake, identity and motive.
Correll argues that this testimony violated section 90.404, Florida Statutes (1985), which prohibits the introduction of similar fact evidence when it is used solely to prove bad character or propensity. However, the point is not properly before this Court because of defense counsel's failure to object to the testimony at trial. Even when a prior motion in limine has been denied, the failure to object at the time collateral crime evidence is introduced waives the issue for appellate review. Phillips v. State, 476 So.2d 194 (Fla.1985); German v. State, 379 So.2d...
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