Denny v. State, XX-138
| Decision Date | 13 October 1981 |
| Docket Number | No. XX-138,XX-138 |
| Citation | 404 So.2d 824 |
| Parties | Duane Hubert DENNY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Charles A. Wade, Fort Walton Beach, for appellant.
Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
Denny appeals his conviction for first degree murder. He alleges error in the use of certain photographs, in an alleged improper closing argument by the prosecutor, and in the playing to the jury of a tape recording of a statement made to the police by a witness the day of the crime. Denny did not dispute the allegations that he shot and killed the victim. Instead his defense was that he was intoxicated at the time and had no premeditated intent to kill the victim. He contends that the jury would not have convicted him of "anything higher than second degree murder" but for the alleged errors in the trial. We find no error, and, therefore, affirm.
Denny argues that photographs of the victim taken at the morgue should not have been admitted, contending that the state breached discovery rules because a police officer allegedly broke a pretrial promise to send the defense lawyer a copy of any such photographs that might be printed. It is undisputed that the existence of the photographs (or negatives) was properly disclosed long before trial and that they were continuously available for inspection or copying by the defense. Fla.R.Crim.P. 3.220(1)(xi). However, the defense attorney never contacted the prosecutor to exercise his right to copy or inspect. Therefore, Denny has not demonstrated that the state violated the rules of discovery. See Floyd v. State, 361 So.2d 802 (Fla.3d DCA 1978).
The claim that the State's closing argument was improper is also without merit. In his closing comments, the defense counsel argued that Denny lacked the ability to form the intent to kill on the night of the crime. In rebuttal, the prosecutor reminded the jury about statements made that night by Denny that he was going to kill Wellman, and the prosecutor recounted that Denny had the mental acuity to find a gun and shells, locate Wellman, and shoot him. Denny claims this was improper rebuttal because it went beyond the scope of defense closing argument and deprived the defense of an opportunity to respond. However, the prosecutor's remarks were directed at the issue of premeditation, which was the focus of the defense argument.
We also find no error in the prosecutor playing for the jury a tape recorded statement made by state witness Linda Denny, the appellant's former wife, shortly after the killing. In an effort to rehabilitate Linda after she was impeached by the defense, the prosecutor...
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