Duest v. State, No. SC00-2366.

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM.
Citation855 So.2d 33,39 Fla. 2003
PartiesLloyd DUEST, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. SC00-2366.

855 So.2d 33
39 Fla. 2003

Lloyd DUEST, Appellant,
v.
STATE of Florida, Appellee

No. SC00-2366.

Supreme Court of Florida.

June 26, 2003.

Rehearing Denied September 8, 2003.


855 So.2d 37
Martin J. McClain, Special Assistant Public Defender, Tallahassee, FL, for Appellant

Charles J. Crist, Jr., Attorney General, and Melanie Ann Dale and Celia A. Terenzio, Assistant Attorneys General, West Palm Beach, FL, for Appellee.

PER CURIAM.

Duest appeals a death sentence imposed at the conclusion of a new penalty phase after the previous sentence of death was vacated. We have jurisdiction. See Art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the sentence of death.

FACTS AND PROCEDURAL HISTORY

This Court's opinion in Duest's direct appeal set forth the following facts:

On February 15, 1982, defendant was seen by witnesses carrying a knife in the waistband of his pants. Subsequently, he told a witness that he was going to a gay bar to "roll a fag." Defendant was later seen at a predominantly gay bar with John Pope, the victim. The two of them then left the bar in Pope's gold Camaro. Several hours later, Pope's roommate returned home and found the house unlocked, the lights on, the stereo on loud, and blood on the bed. The sheriff was contacted. Upon arrival, the deputy sheriff found Pope on the bathroom floor in a pool of blood with multiple stab wounds. Defendant was found and arrested on April 18, 1982.

Duest v. State, 462 So.2d 446, 448 (Fla. 1985). A jury instructed on both felony murder and premeditated murder found Duest guilty of first-degree murder in a general verdict, and the trial court sentenced him to death. This Court affirmed the judgment and sentence, concluding that there was sufficient circumstantial evidence of premeditation based on the following evidence:

The record reflects that defendant had stated he gets his money by "rolling gay guys" and that he intended to do the same on the day that the victim was murdered. Defendant was seen with the victim at a gay bar immediately prior to the murder and was seen leaving the bar with the victim in the victim's car. Shortly thereafter, defendant was seen driving the victim's car alone. At that time, witnesses saw blood stains on the sleeve of his jogging suit. The victim's stolen jewelry case was also seen in the car which was being driven by defendant after the murder. Moreover, on the day of the murder, defendant had in his possession a seven-inch knife. The cause of death in this case was multiple stab wounds. We find that there was sufficient circumstantial evidence to sustain defendant's conviction of premeditated murder.

Id. at 449. This Court also approved the trial court's finding of the aggravating circumstances that the killing was cold, calculated and premeditated (CCP), and especially heinous, atrocious, or cruel (HAC). See id.1 As to CCP, this Court stated:

In finding that this aggravating circumstance applied, the trial court found:
Evidence adduced at trial indicated that defendant informed witness Demezio
855 So.2d 38
some two days prior to the murder that he brings homosexuals back to their apartments, beats them up, and takes their money or jewelry. Defendant on the day of the murder went to his temporary residence with the victim, went into the closet where Demezio kept a dagger and left the residence with John Pope, Jr., the victim. The dagger was later discovered missing, and John Pope, Jr. was later discovered at his home, dead. His car and jewelry box were missing.
We find that the evidence supports the finding that the homicide was committed in a cold, calculated, and premeditated manner.

Id. at 449-50. As to HAC, this Court noted:

The evidence presented at trial shows that the victim received eleven stab wounds, some of which were inflicted in the bedroom and some inflicted in the bathroom. The medical examiner's testimony revealed that the victim lived some few minutes before dying.

Id. at 449. This Court subsequently affirmed the denial of a motion for postconviction relief and denied a petition for a writ of habeas corpus. See Duest v. Dugger, 555 So.2d 849 (Fla.1990). The United States Court of Appeals for the Eleventh Circuit vacated the death sentence based on the reversal, subsequent to the judgment of guilt and imposition of sentence in this case, of a Massachusetts conviction that had been used to support the aggravating factor of previous conviction of a violent felony. See Duest v. Singletary, 997 F.2d 1336 (11th Cir.1993).2

On resentencing, the trial court instructed the jury on four aggravating circumstances: (1) the murder was committed in the course of a robbery or for pecuniary gain, (2) Duest was previously convicted of a crime of violence, (3) the murder was especially heinous, atrocious or cruel, and (4) the murder was committed in a cold, calculated and premeditated manner without the pretense of moral or legal justification. The court also instructed the jury on fourteen nonstatutory mitigating factors, but denied requests for an instruction on statutory mitigators. The jury recommended death by a ten-to-two vote. The trial court found three of the four aggravating factors submitted to the jury, but rejected CCP. The court found no statutory mitigating circumstances and twelve nonstatutory mitigating circumstances.3 The court sentenced Duest to death.

855 So.2d 39
In his appeal to this Court, Duest raises eleven issues,4 which we address as follows

BRADY5 CLAIM

In his first issue, Duest asserts that the testimony in the new penalty phase by medical examiner Dr. Ronald Wright as to the manner of the victim's death constitutes material, exculpatory evidence unlawfully withheld by the State. In his 1983 testimony at deposition and trial in this case, Dr. Wright testified that the victim was initially attacked both on his bed and in the bathroom, and died soon after a final blow in the bathroom, and that death would have occurred from ten to fifteen seconds to no more than five minutes after the stab wound to the right side of the heart. After reviewing the evidence, including crime-scene photographs, Dr. Wright testified in the 1998 penalty phase that the evidence showed that the stab wounds were inflicted only in the bedroom and that the victim then made his way to the bathroom, where he collapsed and died. Dr. Wright also testified in the new penalty phase that the victim was alive and conscious for fifteen minutes or longer after the attack and might not have died from his injuries had he promptly telephoned for emergency medical help. Duest claims that this change in testimony shows that the assailant left the victim alive and therefore calls into question the intent to kill, requiring a new trial on his guilt of first-degree murder.

We conclude that Duest's challenge to the murder conviction, which became final in 1985, is not properly before this Court in an appeal from the reimposition of a death sentence after the previous death sentence was vacated. Duest did not object to the testimony below, instead impeaching Dr. Wright on his change in testimony from 1983 to 1998. Nor has Duest filed a motion for postconviction relief asserting that the change in testimony constitutes either undisclosed exculpatory evidence or newly discovered evidence entitling him to a new trial.6 The absence of a pending motion for postconviction relief distinguishes this case from Way v. State, 630 So.2d 177 (Fla.1993), in which this

855 So.2d 40
Court reversed the summary denial of a motion for postconviction relief raising a Brady claim and withheld ruling on the direct appeal from resentencing pending disposition of the postconviction motion. Id. at 179. In recognition of Duest's efforts to raise this issue during the direct appeal, our affirmance is without prejudice to Duest raising the issue in the trial court via Florida Rule of Criminal Procedure 3.851 after this appeal

EVIDENCE AND INSTRUCTION ON RESIDUAL DOUBT

Duest asserts that the trial court erred in precluding the defense from impeaching witnesses whose identifications of Duest helped establish his commission of the murder and accompanying robbery, and in denying an instruction that the jury could consider "lingering doubt" in rendering its advisory sentence. The trial court disallowed evidence indicating that Duest was in Massachusetts at the time of the murder in Fort Lauderdale. Duest sought to present this evidence to impeach the state witnesses who testified that on the day of the murder, they saw Duest with Pope and then later saw Duest in possession of Pope's car and jewelry box. In finding Duest guilty of the murder, the jury in Duest's 1983 trial rejected an alibi defense based on the same theory.

This Court has held that a defendant's right to present evidence challenging an aggravating circumstance may not be used to relitigate the guilt determination through the introduction of evidence suggesting lingering or residual doubt. See Way v. State, 760 So.2d 903, 916 (Fla. 2000); Waterhouse v. State, 596 So.2d 1008, 1015 (Fla.1992). In Waterhouse, this Court ruled that the trial court, which had allowed a defendant convicted of felony murder to present evidence during the penalty phase that no sexual battery occurred, appropriately precluded cross-examination of state witnesses and presentation of evidence that would have called into question the defendant's guilt of the murder. See 596 So.2d at 1015. Similarly, in Way, we ruled that the trial court did not abuse its discretion in allowing the defense to question police witnesses in an attempt to establish that a fire had not been intentionally set, relevant to the "murder in the course of a felony" aggravator, but precluded questioning on the adequacy of the police investigation, an issue resolved against Way when he was convicted of arson at trial. See 760 So.2d at 918.

We conclude that in this case, the trial court correctly applied the law in determining...

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