Floyd v. State

• Decision Date: 13 September 1990
• Docket Number: No. 72207,72207
• Citation: 569 So.2d 1225
• Parties: 15 Fla. L. Weekly S465 James FLOYD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1225

569 So.2d 1225

15 Fla. L. Weekly S465

James FLOYD, Appellant, v. STATE of Florida, Appellee.

No. 72207.

Supreme Court of Florida.

Sept. 13, 1990.

Rehearing Denied Dec. 11, 1990.

James Marion Moorman, Public Defender, and Robert F. Moeller, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

James Floyd appeals the reimposition of the death penalty. ¹ In Floyd v. State, 497 So.2d 1211 (Fla.1986), we affirmed Floyd's conviction of first-degree murder, vacated the sentence of death, and remanded for a resentencing hearing before a jury. We affirm the new sentence of death.

The state's case at resentencing revealed that on January 17, 1984, the St. Petersburg Police Department received a telephone call requesting police to check on the welfare of Annie Barr Anderson, who was eighty-six years old. Upon arrival at Anderson's home, Officer Ray Olsen was met by Anderson's pastor. He explained that he was concerned because he had not seen Anderson that day, her car was in the rear driveway, her newspaper had not been picked up, her mail remained in the mail box, and she failed to answer after several knocks on her door. Olsen entered the home through the unlocked back door and discovered Anderson lying on her bed, dead. The medical examiner testified that Anderson had received multiple stab wounds, one to the upper chest that penetrated the heart and was rapidly fatal; eleven to the abdomen that were potentially fatal; and one in the left wrist that exited the hand.

Officer Donald Crotty of the St. Petersburg Police Department testified that Floyd cashed a $500 check on Anderson's account on January 16, 1984. Two days later, the bank summoned police when Floyd tried to cash a $700 check on her account. When detectives confronted Floyd, he fled. The detectives gave chase, arrested Floyd, and discovered Anderson's checkbook in his pocket. The detectives also discovered in Floyd's jacket an athletic sock containing dried blood. Officer Robert Engelke testified that the blood on the sock was consistent with Anderson's blood type, but not Floyd's. The officer also testified that tire tracks on the driveway alongside Anderson's home were similar to the tire tread on Floyd's motorcycle.

In mitigation, the defense offered the testimony of numerous witnesses who had known Floyd for many years. Eula Williams regarded Floyd as a son. She stated that he was always respectful and helpful to her, especially in maintaining her yard. Rex Estelle, Floyd's supervisor at the First Baptist Church, testified that Floyd had been a willing and good worker and had been promoted to custodian about six months before the murder.

Floyd's father died of cancer within one year before the murder. Estelle testified that after Floyd's father died, Floyd exhibited extreme mood swings and had been fired after the church discovered missing property and money. Evidence also showed that Floyd's mother was an alcoholic who was hospitalized for her illness.

Thomas Snell, a police communications officer who had known Floyd for fifteen years, testified that Floyd took over Floyd's father's lawn service business after his death. Floyd was known as a conscientious, dependable, and hard worker who cared for his family during the period surrounding his father's demise and mother's alcoholism. He never knew Floyd to be a violent person or to have been in any kind of trouble.

Floyd's mother urged the jury to spare her son's life. Ann Shirley Anderson, the victim's daughter, testified that she corresponded with and visited Floyd in prison, and she urged the jury to consider that "[t]he people that God gives life to are worthwhile." Defense counsel proffered additional testimony from Ms. Anderson. He asked whether she thought that Floyd should be executed for his crimes, and she responded that he should not be executed. The trial court ruled that Ms. Anderson could not express her opinion about the specific sentence to be imposed in the case.

The jury recommended the death penalty by a vote of eight to four. The trial court found two aggravating circumstances ² and no mitigating circumstances, and it sentenced Floyd to death.

Floyd asserts that various errors warrant a new penalty proceeding. First, Floyd, a black man, contends that the state exercised a peremptory challenge to excuse a prospective juror for racially motivated reasons. When the state moved to challenge juror Edmonds, the sole black prospective juror remaining on the panel, ³ defense counsel objected in a timely manner. As an explanation for excusing Edmonds, the prosecutor alleged that when asked about the propriety of the death penalty Edmonds had said that twenty-five years' imprisonment was sufficient punishment. The trial court accepted the state's explanation, although the court conceded that it did not recall what Edmonds had said on that subject, noting that the juror's "answer ... is on the record." ⁴

There is no question that the state's explanation was race-neutral, and if true, would have satisfied the test established in State v. Neil, 457 So.2d 481 (Fla.1984), clarified, State v. Castillo, 486 So.2d 565 (Fla.1986), and State v. Slappy, 522 So.2d 18, 22 (Fla.1988), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988). It is uncontroverted, however, that the explanation was not true. At oral argument, the state conceded that the record indicates that Edmonds never made such a statement. Thus, we must determine the parameters of the trial court's responsibility to ascertain if the state has satisfied its burden of producing a race-neutral reason for the challenge.

It is the state's obligation to advance a facially race-neutral reason that is supported in the record. If the explanation is challenged by opposing counsel, the trial court must review the record to establish record support for the reason advanced. However, when the state asserts a fact as existing in the record, the trial court cannot be faulted for assuming it is so when defense counsel is silent and the assertion remains unchallenged. Once the state has proffered a facially race-neutral reason, a defendant must place the court on notice that he or she contests the factual existence of the reason. Here, the error was easily correctable. Had defense counsel disputed the state's statement, the court would have been compelled to ascertain from the record if the state's assertion was true. Had the court determined that there was no factual basis for the challenge, the state's explanation no longer could have been considered a race-neutral explanation, and Juror Edmonds could not have been peremptorily excused. Because defense counsel failed to object to the prosecutor's explanation, the Neil issue was not properly preserved for review. We reject Floyd's first claim of error.

Next, Floyd contends that the trial court should have excused prospective juror Hendry for cause. Floyd's claim is based on the following colloquy:

MR. HENDRY: I think there is some kind of a deterrent for capital crimes. If you don't, I think there would be more capital crimes. In some circumstances, premeditated murder proven beyond a reasonable doubt, I think the death penalty is warranted.

MR. LOVE [Defense Counsel]: Okay. So, I just want to be clear, sir. If you have a premeditated murder, somebody's been pounding, what have you, on the system, that the death penalty would be warranted under your views?

MR. HENDRY: Right.

MR. LOVE [Defense Counsel]: Do you think that's the case in all cases of those premeditated, finding death penalties warranted?

MR. HENDRY: Yes.

Hendry's response to defense counsel belies the state's claim that he could render an impartial verdict. As we said in Hill v. State, 477 So.2d 553 (Fla.1985):

A juror is not impartial when one side must overcome a preconceived opinion in order to prevail. When any reasonable doubt exists as to whether a juror possesses the state of mind necessary to render an impartial recommendation as to punishment, the juror must be excused for cause.

Id. at 556. Hendry's unqualified predisposition to impose the death penalty for all premeditated murders warranted excusal for cause. Hamilton v. State, 547 So.2d 630, 632-33 (Fla.1989); Moore v. State, 525 So.2d 870, 872-73 (Fla.1988); Hill, 477 So.2d at 556.

However, our inquiry does not end there. Although the trial court erred in failing to excuse Hendry for cause, reversal is warranted under our case law only if Floyd exhausted his peremptory challenges, requested additional peremptories, and had that request denied by the trial court. See Hamilton; Moore; Hill. Although Floyd used a peremptory to remove juror Hendry, and he exhausted his peremptory challenges, he failed to request any additional peremptories to replace the one used to excuse juror Hendry. Nor did he show that a juror unacceptable to him served on the jury. Thus, Floyd failed to preserve his position for appeal. Reilly v. State, 557 So.2d 1365, 1367 (Fla.1990); Hill, 477 So.2d at 556; Young v. State, 234 So.2d 341, 348-49 (Fla.1970), receded from on other grounds, State v. Retherford, 270 So.2d 363 (Fla.1972), cert. denied, 412 U.S. 953, 93 S.Ct. 3020, 37 L.Ed.2d 1007 (1973); Rollins v. State, 148 So.2d 274, 276 (Fla.1963).

We reject Floyd's third claim that the trial court erred in preventing Anderson's daughter from expressing her opinion that Floyd should not receive the death penalty. The trial court permitted Anderson to testify about her knowledge of Floyd's character, based upon her correspondence and visits with him in prison. The court's decision to prevent her from further testifying about her opinion as to whether Floyd should be executed was not an abuse of discretion.

Fourth, Floyd contends that the trial court admitted irrelevant and prejudicial testimony from his cell mate, Greg Anderson. Anderson testified without...