Farina v. State

• Decision Date: 18 April 1996
• Docket Number: No. 81118,81118
• Citation: 679 So.2d 1151
• Parties: 21 Fla. L. Weekly S176 Anthony Joseph FARINA, Appellant, Cross-Appellee, v. STATE of Florida, Appellee, Cross-Appellant.
• Court: Florida Supreme Court

Page 1151

679 So.2d 1151

21 Fla. L. Weekly S176

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

No. 81118.

Supreme Court of Florida.

April 18, 1996.

Rehearing Denied Sept. 24, 1996.

Notice and Cross-Notice of Appeal from the Circuit Court in and for Volusia County; Uriel Blount, Judge. No. 92-32105 CFAES.

Thomas R. Mott, Daytona Beach, for Appellant, Cross-Appellee.

Robert A. Butterworth, Attorney General and Margene A. Roper, Assistant Attorney General, Daytona Beach, for Appellee, Cross-Appellant.

PER CURIAM.

Anthony J. Farina, a prisoner under sentence of death, appeals his conviction of first-degree murder and the penalty imposed. He also appeals his convictions and six consecutive life sentences for three counts of attempted first-degree murder, armed robbery, burglary, and conspiracy to commit murder. We have jurisdiction based on article V, section 3(b)(1) of the Florida Constitution.

We reach the same result as we did in the case involving Farina's brother and codefendant. See Jeffery A. Farina v. State, 680 So.2d 392 (Fla.1996). We affirm all of Anthony Farina's convictions, and we affirm the sentences for the noncapital offenses. We vacate the death sentence, however, because we find that the trial court erroneously excused for cause a prospective juror who was qualified to serve.

Farina was convicted in the fatal shooting of Michelle Van Ness, a seventeen-year-old employee of a Taco Bell restaurant in Daytona Beach. Jeffery Farina fired the fatal shot during a robbery at the restaurant on May 9, 1992. Three other employees were wounded. For a more complete recitation of the facts, see Jeffery A. Farina, 680 So.2d 392.

After finding Anthony Farina guilty of first-degree murder, the jury recommended death by a vote of seven to five. The trial judge followed that recommendation and sentenced Farina to death.

In imposing the death penalty, the trial judge found five aggravating factors: (1) previous conviction of another capital felony or a felony involving the use or threat of violence; (2) capital felony committed to avoid or prevent a lawful arrest or to effect an escape from custody; (3) capital felony committed for pecuniary gain; (4) capital felony was heinous, atrocious, or cruel; and (5) capital felony was a homicide committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. § 921.141(5)(b), (e), (f), (h), (i), Fla.Stat. (1991).

The trial judge found no statutory mitigation, but found nonstatutory mitigation including abuse as a child and that Farina was raised with limited emotional and financial support.

The judge determined that the aggravating factors clearly outweighed any mitigation.

Farina raises ten issues on this direct appeal. ¹

We first consider the issues affecting the guilt phase of the trial. ² Farina argues in Issue 1 that he was denied a fair trial because he was tried by biased and partial jurors. The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the law as instructed by the court. Lusk v. State, 446 So.2d 1038, 1041 (Fla.) (citing Singer v. State, 109 So.2d 7 (Fla.1959)), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984).

Our review of the record indicates that the five jurors about whom Farina complains met the Lusk test for juror competency. Although some of the jurors gave conflicting answers during voir dire, all ultimately indicated that they could base their decision on the evidence. Thus, we find no abuse of the trial judge's discretion either in refusing to excuse these jurors for cause or in refusing to grant additional peremptories to exercise on these jurors. See Lambrix v. State, 494 So.2d 1143, 1146 (Fla.1986) (standard on review is abuse of discretion because trial court can observe and evaluate prospective juror's demeanor and credibility).

In Issue 2, Farina argues that he was forced to use peremptory challenges on a number of prospective jurors who should have been excused for cause. As a result, he argues, objectionable jurors were seated. This Court has held that " '[t]o show reversible error, a defendant must show that all peremptories had been exhausted and that an objectionable juror had to be accepted.' " Trotter v. State, 576 So.2d 691, 693 (Fla.1990) (quoting Pentecost v. State, 545 So.2d 861, 863 n. 1 (Fla.1989)). Farina used sixteen peremptory challenges, including seven that he claims were used on prospective jurors who should have been excused for cause. Under Trotter, a defendant seeking reversal because he claims he was wrongfully forced to exhaust peremptory challenges must identify a specific juror he otherwise would have struck peremptorily. 576 So.2d at 693. Although Farina sought additional peremptories to excuse certain jurors, we have already found that the jurors Farina complains of in Issue 1 were acceptable. Thus, there were no objectionable jurors on his panel, so it does not matter that he was forced to exercise peremptory challenges as he argues in Issue 2.

Farina argues in Issue 4 that the trial court improperly restricted his voir dire, which he said was especially significant because the vote for death was seven to five. Whether a trial judge should have allowed interrogation on specific subjects is reviewed under an abuse of discretion standard. For example, hypothetical questions about a particular legal document are appropriate if they are essential to determine whether challenges for cause or peremptory challenges should be made. Lavado v. State, 469 So.2d 917, 919-20 (Fla. 3d DCA 1985) (Pearson, J., dissenting), dissent adopted by Lavado v. State, 492 So.2d 1322 (Fla.1986).

Defense counsel tried on many occasions to solicit prospective jurors' personal opinions. The defense was allowed to ask questions such as, "If the judge instructs you that age is a factor you should consider in reaching the determination of the applicability of the death penalty would you agree with that?" The court did sustain the State's objections to questions about personal opinions such as, "Now, aside from following the instructions of the court, is that something that you think is good or bad, in your personal opinion?"

While it is true that defense counsel was restricted from exploring jurors' attitudes on every potential mitigator, the record shows that the defense, the State, and the trial court either asked or instructed prospective jurors on numerous occasions whether they could be fair to Farina and his brother. Thus, we find no merit to this issue.

We also find no merit to Issue 5, in which Farina argues that the trial court erred in denying his motion for change of venue. The crimes at issue occurred in May 1992, and the trial began in November 1992. During that time there were numerous media accounts of the crime, including reports of the defendants' confessions.

The fact that jurors were exposed to pretrial publicity, however, is not enough to raise the presumption of unfairness. Bundy v. State, 471 So.2d 9, 19 (Fla.1985), cert. denied, 479 U.S. 894, 107 S.Ct. 295, 93 L.Ed.2d 269 (1986). "It is sufficient if the juror can lay aside his opinion or impression and render a verdict based on the evidence presented in court." Id. at 20. Even publicity about a confession is not a per se ground for granting a change of venue. Holsworth v. State, 522 So.2d 348, 351 (Fla.1988). Although most people questioned during voir dire had heard about the case, all of those ultimately chosen indicated they could base their verdicts on the evidence presented.

Farina argues in Issue 6 that he was denied a fair trial because he was tried with a codefendant and that codefendant's incriminating statements were offered at trial when Farina could not cross-examine the codefendant. Police monitored conversations between Jeffery and Anthony Farina on two occasions while the Farinas were in custody and sitting in a police car. In these conversations, the Farinas discussed the crimes. We have held that a person in custody in the back of a police car has no right of privacy. State v. Smith, 641 So.2d 849, 851 (Fla.1994).

Anthony Farina argues that the admission of Jeffery's statements violated his Sixth Amendment right to confront witnesses as explained in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). We find no Confrontation Clause violation under the circumstances of this case.

In Bruton, the United States Supreme Court held that a defendant's Sixth Amendment right to confrontation is violated when a codefendant's confession is admitted at their joint trial, despite the fact that the jury is instructed that the confession is admissible only against the codefendant. Id. at 126, 88 S.Ct. at 1622-23. One year later, the Supreme Court ruled that a Bruton violation did not automatically require reversal of an otherwise valid conviction and was subject to harmless error analysis. Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728-29, 23 L.Ed.2d 284 (1969).

In Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979), abrogated by Cruz v. New York, 481 U.S. 186, 191-92, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), the Supreme Court considered the question of whether Bruton applies where the defendant's own confession, which corroborates that of the codefendant, has also been introduced at trial. A plurality of four justices found the Bruton prohibition inapplicable to cases involving interlocking confessions. Id. at 69-76, 99 S.Ct. at 2137-41. The remaining four justices expressed the view that the defendant's own interlocking confession might render the Confrontation Clause violation harmless but did not cause the introduction of the nontestifying codefendant's confession not to constitute a violation. Id. at 77-91, 99 S.Ct. at 2141-48.

The Supreme Court revisited the...