Finney v. State

• Decision Date: 20 July 1995
• Docket Number: No. 80990,80990
• Citation: 660 So.2d 674
• Parties: 20 Fla. L. Weekly S401 Charles W. FINNEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 674

660 So.2d 674

20 Fla. L. Weekly S401

Charles W. FINNEY, Appellant, v. STATE of Florida, Appellee.

No. 80990.

Supreme Court of Florida.

July 20, 1995.

Rehearing Denied Sept. 18, 1995.

James Marion Moorman, Public Defender, and Steven L. Bolotin, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., and Carol M. Dittmar, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Charles W. Finney, a prisoner under sentence of death, appeals his convictions and sentences. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const.

According to the testimony at trial, Sandra Sutherland was discovered stabbed to death in her apartment shortly after 2 p.m. on January 16, 1991. The victim was found lying face down on her bed. Her ankles and wrists were tied and she had been gagged. On a nightstand near the bed was an open jar of face cream. The lid was lying next to the jar. The victim's bedroom had been ransacked, the contents of her purse had been dumped on the floor, and her VCR was missing.

According to the medical examiner the cause of death was multiple stab wounds to the back. Of the thirteen stab wounds, all but one penetrated the lungs causing bleeding and loss of oxygen, ultimately resulting in death. No bruises or other trauma was observed.

Numerous fingerprints were gathered from the victim's apartment, including prints from a piece of paper with German writing and from the jar on the nightstand. Fingerprints also were taken from the missing VCR, which was located at a local pawn shop. Pawn shop records indicated that the VCR was brought in on January 16 at 1:42 p.m. by Charles W. Finney for a loan of thirty dollars. Finney's fingerprints matched prints taken from the pawn ticket, the VCR, the jar lid, and the paper with German writing.

After it was determined that Finney had pawned the victim's VCR, Detective Bell of the Tampa Police Department interviewed Finney on the afternoon of January 30, 1991. Finney told Bell that he knew the victim due to the fact that they had lived near each other in the same apartment complex. Finney told Bell that he had seen the victim twice since she moved to another apartment in the complex. Once, he had talked to her about putting a screened porch on the back of her new apartment and then about two months prior to the murder he talked to her by the mailboxes at the complex. When asked about his whereabouts on the day of the murder, Finney told Detective Bell that he was home sick all day and never left his apartment. Upon being confronted with the fact that he had pawned the victim's VCR, Finney told the detective he found it near the dumpster when he took out the garbage and then pawned it.

Finney called a witness who testified that the day before the murder he saw the victim arguing with a white male near the mailboxes at the apartment complex. Another defense witness testified that around 10 a.m. on the day of the murder, he saw William Kunkle, who worked as a carpenter at the apartment complex, come out of the victim's apartment. According to the witness, when Kunkle saw him, Kunkle came out of the door very quickly, locked the door with a key, and walked around the corner. The witness's girlfriend offered similar testimony as to Kunkle's conduct. In rebuttal, Kunkle testified that on January 16 he worked in the building next door to Ms. Sutherland's apartment, but had not been in her apartment that day. He denied ever having any conversation or interaction with the victim. The fingerprint examiner also testified during rebuttal that Kunkle's fingerprints did not match those found in the victim's apartment.

The defense sought to recall the medical examiner, Dr. Diggs, to testify that the crime scene was consistent with both a consensual sexual bondage situation and a situation where the victim consented to being bound and gagged out of fear. The State objected to the testimony as speculative. During proffer, Dr. Diggs told the court that whether a bondage situation was consensual was not something that a medical examiner would typically testify about or try to determine. The trial judge disallowed any testimony about the circumstances being consistent with sexual bondage, but allowed Dr. Diggs to testify concerning the probable positions of the victim and of the attacker and about the fact that there were no defensive wounds or other signs of a struggle.

Finney took the stand in his own defense. He testified that he had lived near Ms. Sutherland in the same apartment complex until she moved about eight months prior to the murder. A couple of months after she moved, Ms. Sutherland talked to him about screening in the patio of her new apartment. At that time, she handed him a piece of paper to write down measurements but took the paper back. Finney testified that he returned about a week or two later but Ms. Sutherland had decided not to screen the patio. On that occasion he was in the victim's apartment, helped her move boxes and took various items out of the boxes. According to Finney the last time he saw Ms. Sutherland was a day or two before the murder. She was coming out of her apartment early one morning. She came over to his car and they talked. He further testified that he found the VCR near the dumpsters at the complex and had pawned it the same day for pocket cash. He stated that he did not steal the VCR and that he did not kill Ms. Sutherland.

Finney was convicted of first-degree murder, armed robbery, and dealing in stolen property. The jury recommended death by a vote of nine to three. The trial judge followed the recommendation. The judge found three aggravating factors: 1) Finney previously had been convicted of a violent felony; 2) the murder was committed for pecuniary gain; and 3) the murder was especially heinous, atrocious or cruel. ¹ She found five nonstatutory mitigating factors: 1) Finney's contributions to the community as evidenced by his work and military history; 2) Finney's positive character traits; 3) Finney would adjust well to a prison setting and had potential for rehabilitation; 4) Finney had a deprived childhood; and 5) Finney's bonding with and love for his daughter.

Finney raises the following claims in this appeal: 1) there was insufficient evidence to support his convictions and the finding of the pecuniary gain aggravator; 2) the trial court erred in excluding the proffered testimony of Dr. Diggs that the murder scene was consistent with a consensual sexual bondage situation; 3) the trial court erred in denying defense counsel's request that Finney's shackles be removed during the penalty phase; 4) the trial court erred in allowing the victim of the prior violent felony conviction to testify as to the circumstances of that crime; 5) the trial court erred in prohibiting cross-examination of the prior victim regarding her description of her attacker; 6) the trial court erred in denying the request for individual jury instructions on the specific nonstatutory mitigating factors urged; and 7) the trial court erred in instructing on and finding the three aggravating factors and in imposing the death penalty.

First, we find sufficient evidence to support the convictions. There was evidence that Finney pawned Ms. Sutherland's VCR within hours after she was killed and that Finney's fingerprints were found on two items in the victim's apartment--the lid of the face cream jar found on the night stand next to the body and the piece of paper with German writing. According to Finney, he was in possession of the victim's VCR because he found it next to the dumpster at his apartment complex. Further, it could be inferred from his testimony that his fingerprints were on the lid and paper because the victim had handed him a piece of paper to write on and he later helped the victim move and unpack boxes.

In order to convict on this evidence, the State had to present evidence that was inconsistent with Finney's hypothesis of innocence. Cox v. State, 555 So.2d 352 (Fla.1989). Finney's theory that Kunkle, who was seen leaving the victim's apartment on the morning of the murder, committed the murder was rebutted by Kunkle's testimony that he was not in the apartment and did not kill the victim. In connection with the fingerprints found in the victim's apartment, the State offered expert testimony that fingerprints will be destroyed by subsequent handling and that over time they will be destroyed by the elements.

The State also presented evidence that was inconsistent with Finney's testimony at trial. Detective Bell testified that Finney told him that he was home sick and did not leave his apartment the day of the murder. Finney never mentioned pawning the VCR until confronted with that information. Finney also told the detective that he had seen the victim only twice since she moved to a different apartment, but never mentioned being handed a piece of paper or helping Ms. Sutherland move and unpack boxes. In light of Finney's inconsistent statements concerning his interactions with the victim and his activities on the day of the murder, the jury was free to reject Finney's version of events as unreasonable. Bedford v. State, 589 So.2d 245 (Fla.1991), cert. denied, 503 U.S. 1009, 112 S.Ct. 1773, 118 L.Ed.2d 432 (1992).

Finney's argument that the State did not present evidence that was inconsistent with every hypothesis except premeditation is based on the proffered testimony of Dr. Diggs that the murder scene was consistent with both consensual sexual bondage that escalated into a homicide and with a situation where the victim submitted to being bound and gagged out of fear. As noted below, the proffered testimony was properly excluded. However, even if the proffered testimony were admissible, Finney's contention that he did not kill the victim was sufficiently inconsistent with the hypothesis that he killed the victim during a consensual sexual encounter gone bad to allow the...