Farina v. State

• Decision Date: 16 August 2001
• Docket Number: No. SC93050.,SC93050.
• Citation: 801 So.2d 44
• Parties: Anthony Joseph FARINA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

801 So.2d 44

Anthony Joseph FARINA, Appellant, v. STATE of Florida, Appellee.

No. SC93050.

Supreme Court of Florida.

August 16, 2001.

Rehearing Denied November 29, 2001.

Jeffrey L. Dees, Daytona Beach, FL, for Appellant.

Robert A. Butterworth, Attorney General, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, FL, for Appellee.

PER CURIAM.

Anthony Joseph Farina appeals the imposition of the death penalty upon resentencing. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. For the reasons expressed below, we affirm the death sentence.

Anthony¹ and his brother Jeffery Farina were convicted and sentenced to death for the fatal shooting of Michelle Van Ness during the robbery of a Taco Bell restaurant in Daytona Beach in 1992. The record shows that both brothers planned and participated in the robbery, but that Jeffery actually fired the fatal shot, shot two other restaurant employees, and stabbed the assistant manager in the back after his gun misfired.

On appeal, this Court affirmed Anthony's conviction for first-degree murder, but vacated his death sentence and remanded for a new sentencing proceeding due to error in the jury selection process. See Farina (Anthony) v. State, 679 So.2d 1151, 1157 (Fla.1996)

. We also remanded codefendant Jeffery's case for resentencing due to the same error. See Farina (Jeffery) v. State, 680 So.2d 392, 396-99 (Fla.1996). On remand, a joint penalty proceeding was held before a new jury. By a vote of twelve to zero the jury recommended the death penalty for each defendant. The trial court followed the jury recommendation and sentenced both defendants to death.

In imposing the death penalty on Anthony, the trial judge found five aggravating factors: (1) defendant was previously convicted of another capital felony or felony involving the use or threat of violence based upon the attempted murders of the other restaurant employees; (2) the murder was committed to avoid arrest; (3) the murder was committed for pecuniary gain; (4) the murder was heinous, atrocious, or cruel (HAC); and (5) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP). The judge found three statutory mitigating factors (Anthony had no significant history of prior criminal activity; he was an accomplice in the capital felony committed by Jeffery and his participation was relatively minor; he was eighteen years old at the time of the crime) and fifteen nonstatutory mitigating factors (abused and battered childhood, history of emotional problems, cooperation with the police, involvement in Christianity and Bible study courses while in prison, good conduct in prison, remorse for what happened, assertion of a positive influence on others, no history of violence, abandonment by his father, poor upbringing by his mother, lack of education, good employment history, and amenability to rehabilitation). The trial judge concluded that the aggravating factors far outweighed the mitigating factors, and imposed the death penalty.

On appeal after resentencing, this Court vacated Jeffery's death sentence based upon our decision in Brennan v. State, 754 So.2d 1 (Fla.1999), that the imposition of a death sentence for a crime committed when the defendant was sixteen years of age constitutes cruel or unusual punishment in violation of article I, section 17 of the Florida Constitution. See Farina (Jeffery) v. State, 763 So.2d 302, 303 (Fla. 2000)

.

On appeal, Anthony raises twelve issues, including two claims presented in a supplemental brief which relate to the appropriateness of his death sentence now that Jeffery has been sentenced to life imprisonment. Anthony claims that: (1) the State improperly used peremptory challenges to strike two African-American jurors; (2) the trial court erred in denying his motion in limine to prohibit the introduction of his taped conversation with his brother Jeffery; (3) the trial court erred in denying his motion to suppress this taped conversation; (4) the trial court erred in denying his motion to sever his resentencing proceeding from Jeffery's; (5) the trial court erred in admitting victim impact evidence, in allowing the evidence to become the main feature of the trial, and in refusing to give a requested limiting instruction; (6) the HAC aggravating circumstance was improperly found; (7) the CCP aggravating circumstance was improperly found; (8) the avoid arrest/witness elimination aggravating circumstance was improperly found; (9) the death sentence is not proportionally warranted; (10) Florida's death penalty is unconstitutional on numerous grounds; (11) he is entitled to a new sentencing proceeding so that the judge and jury can consider Jeffery's life sentence under Brennan in determining the appropriate sentence for him; and (12) death is disproportionate in light of other cases where the triggerman received a life sentence.

In issue one Anthony claims that the State improperly used peremptory challenges to exclude two African-American jurors (Edwards and Hilton) and that the court failed in its duty to critically examine these challenges. Under Melbourne v. State, 679 So.2d 759 (Fla.1996), and its progeny, the following procedure must be followed for challenging peremptory strikes of prospective jurors: (1) the objecting party must make a timely objection, must show that the venire person is a member of a distinct racial group, and must request that the court ask the striking party the reasons for the strike; (2) if the first step is met, the court must ask the proponent of the strike to explain the reason for the strike; and (3) if the reason given is facially race-neutral and the court believes that given all the circumstances surrounding the strike, the explanation is not pretext, the strike will be sustained. Id. at 764. In the third step, the court's focus is on the genuineness of the explanation, not its reasonableness. See id. On appeal, reviewing courts must be mindful of two guiding principles: peremptory challenges are presumed to be exercised in a nondiscriminatory manner; and the trial court's decision, which turns primarily on an assessment of credibility, will be affirmed on appeal unless clearly erroneous. See id.; Rodriguez v. State, 753 So.2d 29, 40 (Fla.2000),

cert. denied, 531 U.S. 859, 121 S.Ct. 145, 148 L.Ed.2d 96 (2000).

In the instant case, the State peremptorily struck juror Edwards on two grounds: that she expressed concern over her son's guilt for a drug conviction; and that she voiced hesitancy about the death penalty. The trial judge ruled that "prosecutors very frequently challenge jurors for those types of reasons. So I find it to be a race-neutral reason that is very common in our system for challenging jurors." The State peremptorily struck juror Hilton on the grounds that she had been thirty minutes late in arriving for voir dire on the previous day, was tentative in her support of the death penalty, was a member of a church that was involved in a prison ministry program, and might allow feelings of Christian forgiveness to creep into her decision. The trial judge ruled that he was "supposed to just sustain the challenge if I find that the attorney making it is making it in his or her world of good faith, not whether I agree with it or not. And I don't think that [the prosecutor] is making a racial-based challenge ... And I don't think [the prosecutor] is lying to me." Based upon our review of the voir dire record and the fact that the court's rulings turned on an assessment of the genuineness of the State's reasons for striking these two prospective jurors, we conclude that the trial court's ruling was not clearly erroneous and Anthony is not entitled to relief on this claim.

Issues two and three both involve a recorded conversation between the brothers in the back seat of a police car, which was recorded without the brothers' knowledge. During this conversation, both Anthony and Jeffery made incriminating statements about the crime. The taped conversation was introduced during the original guilt phase trial and this Court found no error in its admission. See Farina, 679 So.2d at 1157

. After we remanded for a new sentencing proceeding, Anthony filed a motion in limine to prohibit the use of the statement in the penalty phase on the grounds that it was not relevant to any aggravating circumstance. See Kormondy v. State, 703 So.2d 454, 463 (Fla.1997) (explaining that evidence presented by the State during the penalty phase must be directly related to proving a statutory aggravating circumstance). Anthony also filed a motion to suppress the statement, claiming that the police intentionally violated criminal procedure statutes and rules in obtaining the statement. After hearing, the trial court denied the motion in limine and struck the motion to suppress as repetitive.

The State argues that because the taped conversation was properly admitted during the guilt phase of Anthony's first trial and the sentencing jury would have heard the statements had this Court not remanded the case for a new sentencing proceeding, there is no error in admitting the taped conversation. We do not agree with the State that a resentencing jury is entitled to hear everything that was introduced during the guilt phase of the trial. Evidence presented by the State during the penalty phase must be relevant to an issue properly being considered during that phase, such as an aggravating circumstance. See Kormondy. However, the evidence presented here is unlike the situation in Kormondy where the court committed reversible error by allowing testimony regarding statements made by the defendant in jail in which he expressed his intent to kill in the future. We concluded that "a statement allegedly made in jail (after the relevant criminal episode) as to a future intent to kill [cannot] shed[ ] any light on Kormondy's intent at the...