Davis v. State, 75467
| Decision Date | 16 July 1992 |
| Docket Number | No. 75467,75467 |
| Citation | 604 So.2d 794 |
| Parties | 17 Fla. L. Weekly S462 Henry Alexander DAVIS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
James Marion Moorman, Public Defender and Robert F. Moeller, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen. and Ralph Barreira, Asst. Atty. Gen., Miami, for appellee.
Henry Alexander Davis was convicted of first-degree murder, armed robbery, and burglary and sentenced to death for the murder. He appeals his conviction and death sentence. Our jurisdiction is mandatory. Art. V, Sec. 3(b)(1), Fla.Const.
On the evening of March 18, 1987, the body of seventy-three year old Joyce Ezell was discovered in the foyer of her house just inside the front door. She had suffered twenty-one stab wounds. There were no signs of forced entry. Several items were missing from Ezell's home, including silver serving pieces, her purse and wallet, a pearl-handled pistol, some rare coins, jewelry, a ring belonging to her late husband, and her car. Davis was acquainted with Ezell because he had done yard work at her house with his stepfather.
Ezell's neighbor, Harold Brown, told police officers that he saw a black man walk up to Ezell's door at approximately 7:15 a.m. March 18. Several days later, Brown identified Davis from a photographic lineup as the man he had seen.
Ezell's car was discovered the day after the murder in a sink hole approximately five miles from her residence. Evidence indicated that at least three people had occupied the car recently. Silver serving pieces belonging to the victim were in the trunk. Davis's fingerprints were found on the power window control on the driver's side of the car and on several items recovered from the trunk of the vehicle. Fingerprints taken from inside the victim's house also matched Davis's fingerprints.
John Johnson, an acquaintance of Davis's, testified that he took Davis to a pawn shop the morning after the murder so that Davis could pawn a ring and an old pistol. The description Johnson gave of the pistol matched the pistol missing from Ezell's house. The ring, which had belonged to Ezell's late husband, was recovered from the pawn shop.
Davis was arrested on March 20, 1987. He denied committing the murder and said that he had not been in the victim's house or car. He initially said that he had been picking watermelons on the day of the murder but later said that he had been babysitting. A few days after his arrest, Davis told officers that the day before the murder, a black man who looked exactly like him showed him a weapon similar to an ice pick and said that he was going to rob Ezell. Davis said that he saw the man the day after the murder and the man asked him if he heard what happened. Davis also told the officers that he had seen Ezell at the post office on the day before the murder and he offered to go to her house to put up groceries. He said that he went to her house, put up groceries, then locked her car and left.
Davis was initially found incompetent to stand trial after he performed poorly on certain tests and indicated that he had no recall of events on the day of the murder. He was sent to Florida State Hospital where he was treated and evaluated for approximately nine months. Upon his release from the hospital, Davis was evaluated again, was found to be competent, and went to trial. After the conviction, the trial judge followed the jury's unanimous recommendation and imposed the death penalty for the murder.
In his first claim on appeal, Davis asserts that he was denied a fair trial by the State's suggestion to the jury on two occasions that he had been involved in other criminal activity. During the guilt phase of trial, State witness Harold Brown testified that after the murder he went through several books at the police station and selected pictures that looked similar to the man he had seen at Ezell's door on the morning of the murder. The prosecutor then showed Brown a folder containing a photographic lineup from which Brown had identified Davis shortly after the murder. Defense counsel objected and moved for a mistrial, claiming that the pictures were "mug shots" and implied to the jury that Davis had a record. The court denied the motion.
We find nothing in the photographs, the testimony, or the circumstances that would have suggested to the jury that Davis had a prior criminal record. Neither the witness nor the prosecutor referred to the photographs as mug shots. The pictures were closely cropped, showing only the neck and face and leaving no marks that would identify their origin. See D'Anna v. State, 453 So.2d 151 (Fla. 1st DCA 1984). Davis argues that because Brown identified him in court, there was no need for testimony or evidence relating to the picture identification. Under the facts of this case, Brown's identification of Davis from the photographic lineup was relevant and probative. Brown identified Davis from the six photographs shortly after the murder. That identification carried more weight and credibility than Brown's in-court identification of Davis more than three years later.
The second incident about which Davis complains occurred during the penalty phase. Davis's mother testified that Davis fell from a tree approximately four months before the murder. She claimed that the fall caused pronounced behavioral changes in Davis. Davis's sister, Alma Sheppard, testified that Davis acted abnormally and behaved quite differently after the fall. The following interchange occurred during the State's cross-examination of Sheppard:
[Prosecutor]: Was there anything else Henry had become involved in that you thought might have added to his change in behavior?
[Sheppard]: I don't know. When you say involved in?
[Prosecutor]: Well, isn't it true, Alma, that Henry became involved in cocaine back about the same time?
[Sheppard]: I cannot answer that because I do not know.
Defense counsel objected and moved for a mistrial. The trial court denied the motion, finding that the prosecutor had a good faith basis for the question.
We do not reach the issue of whether the prosecutor's question was proper because we find that any error was harmless beyond a reasonable doubt. Sheppard denied any knowledge that Davis used cocaine. There was no further reference to the matter before the jury. Further, there was evidence presented during the guilt phase from which the jury could have concluded that Davis used drugs. A witness testified that he saw Davis the day after the murder and that he "seemed like he was high or something." In addition, a bent soft drink can was found in the victim's car which suggests that a person or persons in the car had used crack cocaine.
Next, Davis argues that the trial court erred in denying his motion for a mistrial and failing to give a curative instruction after the prosecutor made an improper "Golden Rule" argument. Near the end of his penalty phase closing argument, the prosecutor told the jury "it might not be a bad idea to look at [the knife] and think about what it would feel like if it went two inches into your neck." The court sustained defense counsel's objection to this argument. At the end of the prosecutor's argument, defense counsel moved for a mistrial. The court concluded that the bulk of the State's argument was technical and unemotional and appealed to the jury to follow the rules. The judge denied the motion for mistrial and determined not to give a curative instruction because it would only emphasize the comment.
Although the comment was improper, we find that under these circumstances a mistrial is not warranted. The remark occurred at the end of a lengthy and otherwise unemotional closing argument. The comment was not so egregious as to fundamentally undermine the reliability of the jury's recommendation. See Pope v. Wainwright, 496 So.2d 798, 803 (Fla.1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987); Bertolotti v. State, 476 So.2d 130 (Fla.1985). Any error resulting from this single, isolated comment was harmless beyond a reasonable doubt.
Next, Davis challenges two of the aggravating circumstances found by the trial court. 1 Davis argues that the evidence does not support the finding that the murder was especially...
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...either individually or collectively, so undermined the jury's recommendation as to warrant a new sentencing proceeding. Davis v. State, 604 So.2d 794, 797 (Fla. 1992). Jones v. State, 652 So.2d 346, 352-53 (Fla. In his petition, Mr. Jones cites to "examples" of the State Attorney's inapprop......
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