Farina v. State

• Decision Date: 18 April 1996
• Docket Number: No. 80985,80985
• Citation: 680 So.2d 392
• Parties: 21 Fla. L. Weekly S173 Jeffery Allen FARINA, Appellant, Cross-Appellee, v. STATE of Florida, Appellee, Cross-Appellant.
• Court: Florida Supreme Court

Page 392

680 So.2d 392

21 Fla. L. Weekly S173

Jeffery Allen FARINA, Appellant, Cross-Appellee, v. STATE of Florida, Appellee, Cross-Appellant.

No. 80985.

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, Jr., Judge--Case No. 92-32128 CFAES.

James B. Gibson, Public Defender and Larry B. Henderson, Assistant Public Defender Seventh Judicial Circuit, 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.

Jeffery A. 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 with a battery, and conspiracy to commit first-degree murder. We have jurisdiction based on article V, section 3(b)(1) of the Florida Constitution.

We affirm all of Farina's convictions, and we affirm the sentences for the noncapital offenses. We vacate his death sentence, however, because we find that the trial court erroneously excused for cause a prospective juror who was qualified to serve.

Farina and his brother, Anthony J. Farina, were tried together and convicted of fatally shooting seventeen-year-old Michelle Van Ness during the May 1992 robbery of a Taco Bell restaurant in Daytona Beach. See also Anthony J. Farina v. State, 679 So.2d 1151 (Fla.1996). Jeffery Farina fired the shot to the head that killed Van Ness.

The jury convicted Jeffery Farina of first-degree murder and recommended death by a vote of nine to three. The trial judge followed the jury's 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 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), (g), (i), Fla.Stat. (1991).

The trial judge found two statutory mitigating factors: (1) no significant history of criminal activity and (2) Farina's age (sixteen) at the time of the crime. § 921.141(6)(a), (g), Fla.Stat. (1991). The judge also found nonstatutory mitigating factors, including abuse as a child and that Farina was raised with limited emotional and financial support.

The trial judge found that the aggravating factors clearly outweighed any mitigating factors.

Van Ness and the other three victims all worked at Taco Bell. After the restaurant closed early on May 9, 1992, Jeffery and Anthony Farina confronted Van Ness and Derek Mason, 16, while the two employees were emptying trash. Jeffery was armed with a .32-caliber pistol, Anthony carried a knife and rope, and both wore gloves.

The Farinas ordered Van Ness and Mason into the restaurant, where they rounded up two other employees. Jeffery held three employees at gunpoint, while Anthony forced employee Kimberly Gordon, 18, to open the safe and hand over the day's receipts. Although there were assurances that no one would be hurt, the Farinas tied the employees' hands behind their backs and Anthony forced them into a walk-in freezer.

Survivors testified that Van Ness was shaking and crying as she entered the freezer and she was afraid she would be hurt. Shortly after the employees were led to the freezer, Jeffery shot Mason in the mouth. He then shot employee Gary Robinson, 19, in the chest, and finally shot Van Ness in the head. Gordon was stabbed in the back.

The Farinas fled the restaurant, but were arrested later that day after another Taco Bell employee saw Anthony buying gasoline at a service station and called the police. When arrested, Jeffery had a receipt from a local store indicating that he had purchased .32-caliber bullets, gloves, and clothesline on May 8. The Farinas had $1,885 of the $2,158 that was taken from Taco Bell.

Van Ness died on May 10. The Farinas were charged with first-degree murder and six other offenses.

Farina raises six issues on direct appeal. ¹

We turn first to the issues affecting the guilt phase. Farina argues that the trial court should not have allowed television cameras, surviving victims, and the victims' families to be positioned so close to jurors and prospective jurors (Issue 3). The defense was concerned that a television camera was about four feet away from the nearest juror's seat in the jury box, and the distance from the lens to the face of the juror sitting in that seat was approximately one foot. Farina also claims that the presence of the camera--and its repeated turning to take pictures of the victims and their families--prejudiced him.

A defendant must show prejudice of constitutional proportions to have cameras excluded from a courtroom. Jent v. State, 408 So.2d 1024, 1029 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982). The only overt indication of prejudice came during voir dire questioning of a prospective juror:

Q [by Anthony Farina's lawyer]: As I understand it you have not been exposed [to pretrial publicity] as much as most everybody else. You were out of town for some period of time?

A [by prospective juror]: Yes.

Q: But despite that, the exposure you did have, have you had time to think about it?

A: I still don't know anything. I think I heard more yesterday from a judge saying there was someone else involved, a 13 year old, I believe, and that's all I know. I don't know a thing about this.

Q: Okay.

A: And I don't think the paper is smart enough. I do have a comment though. If it's bad for the paper to project to the people what's going on, and then you allow television in here, you're working against the principle of the court, I think. That's my opinion.

Q: Okay.

A: You're making it very difficult for the jurors to be unbiased.

This prospective juror did not serve on the jury.

Farina also notes that the trial court overruled his objection that victims and their families were seated in the first two rows in front of the jury box. He argues that this was prejudicial because the jurors and prospective jurors could see the families become emotional or embrace. Victims do, however, have a constitutional right to be present at court proceedings. Art. I, § 16, Fla. Const. Farina has not demonstrated prejudice from jurors seeing these victims or family members. The jurors undoubtedly could have seen the families' emotions or embraces even if they were seated at other locations in the courtroom. Thus, we find no merit to this issue.

Farina's fourth issue concerns both the guilt and penalty phase. Before Farina's trial, the State Attorney asked the court clerk to assign the case to another division where a particular judge was the only sitting judge. Although the request was contrary to an administrative order controlling the assignment of cases, the clerk granted the request. The defense then filed a motion to disqualify the State Attorney's office. The trial court conducted an evidentiary hearing, but denied the defense motion because no prejudice to the defendant had been shown. While we do not condone the prosecutor's actions, we do not find that the trial court abused its discretion in declining to disqualify the State Attorney's office. We have held that disqualification is proper only if specific prejudice can be demonstrated. State v. Clausell, 474 So.2d 1189, 1190 (Fla.1985). Actual prejudice is "something more than the mere appearance of impropriety." Meggs v. McClure, 538 So.2d 518, 519 (Fla. 1st DCA 1989). Disqualification of a state attorney is appropriate "only to prevent the accused from suffering prejudice that he otherwise would not bear." Id. at 519-20. Based on the record before us--including the fact that the judge the State may have hoped would try the case did not preside--we cannot say that Farina suffered any actual prejudice.

As a second part of this issue, Farina identifies three acts of prosecutorial misconduct that occurred during the penalty phase. He claims that the prosecutor made improper argument in his opening statement during the penalty phase; the State sought to re-enact the crime by using the surviving victims, other State Attorney employees, and props including a .32-caliber pistol, a dagger, and rope; and the State called Van Ness's father to the stand to testify despite an order prohibiting the use of victim impact testimony. Our resolution of Issue 2, see infra op. at 396-99, renders this part of the issue moot.

Farina's second issue, which concerns jury selection, is dispositive of the penalty phase. ² He argues that the trial court erroneously excused for cause three jurors who were qualified to serve. We find merit to Farina's arguments about prospective juror Fannie Hudson and that alone requires us to vacate his death sentence.

In a capital case, it is reversible error to exclude for cause a juror who can follow his or her instructions and oath in regard to the death penalty. ³ See Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987); Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976). The relevant inquiry is whether a juror can perform his or her duties in accordance with the court's instructions and the juror's oath. Gray, 481 U.S. at 658, 107 S.Ct. at 2051. The record shows that Hudson was qualified to serve:

Q [by the trial court]: Miss Hudson--Mrs. Hudson and Mr. Nichols, in this particular case the defendants are charged with murder in the first degree. Are either of you...