Ford v. State

• Decision Date: 13 September 2001
• Docket Number: No. SC95972.,SC95972.
• Citation: 802 So.2d 1121
• Parties: James D. FORD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

802 So.2d 1121

James D. FORD, Appellant, v. STATE of Florida, Appellee.

No. SC95972.

Supreme Court of Florida.

September 13, 2001.

Rehearing Denied December 13, 2001.

James Marion Moorman, Public Defender, and Robert F. Moeller, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Appellant.

Robert A. Butterworth, Attorney General, and Carol M. Dittmar, Assistant Attorney General, Tampa, FL, for Appellee.

SHAW, J.

James D. Ford was convicted of sexual battery with a firearm, child abuse, and two counts of first-degree murder. He was sentenced to 19.79 years' imprisonment, five years' imprisonment, and death, respectively. He appeals his convictions and sentences. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm.

I. FACTS

James ("Jimbo") Dennis Ford and Greg Malnory were co-workers at the South Florida Sod Farm in Charlotte County. On Sunday morning, April 6, 1997, Ford made plans to go fishing later that day with Greg and his wife Kim on the sod farm. The relevant facts are set forth in the trial court's sentencing order:

In the early afternoon of April 7, 1997, an employee of the South Florida Sod Farm made a gruesome discovery on the grounds of the 7,000 acre farm located in a remote area of Charlotte County. At the scene of these crimes, authorities found the pickup truck owned by Greg and Kim Malnory in the middle of a field. Some distance away, they found the body of Greg Malnory. He had been shot in the head from behind by what was later determined to be a .22 caliber rifle.

The shooting evidently occurred somewhere in the vicinity of the crime scene, perhaps between the Malnorys' truck and a nearby pond. Greg then apparently staggered out into the middle of the field, followed by the Defendant.

The Defendant then inflicted at least seven blunt force injuries to the head and face of Greg Malnory with what has been described by the medical examiner as a blunt instrument consistent with an axe. Greg was found lying on his back in the middle of the field with his throat slit nearly from ear to ear, so deeply that underlying muscle tissue was exposed. The massive amount of blood found on Greg Malnory's chest and shirt lead [sic] to the inescapable conclusion that Greg was first shot in the head, that the bullet only disabled him, and that the Defendant then savagely killed him by beating him to death and slitting his throat while Greg was lying on his back in the middle of the field.

The body of Kimberly Malnory was found near the truck. Evidence revealed the existence of nine blunt force injuries to her head, one of which fractured and penetrated her skull. Defensive wounds were found on the backs of Kim's arms indicating that she put up a struggle. There was also evidence of two oval discolorations on the superficial tissues on the inside of Kimberly Malnory's thighs which were suggestive of thumb prints. These marks were made by the Defendant while Kimberly Malnory was alive.

DNA testing revealed the presence of the Defendant's semen inside Kimberly Malnory and on her shirt. The single piece bathing suit that Kimberly Malnory was wearing under her shirt at the time of the killings had been sliced clean through the crotch as if with a sharp knife. Before raping Kimberly Malnory, the Defendant took the weapon he had used to shoot Gregory Malnory, a .22 caliber singleshot, bolt-action rifle named "old Betsy," and reloaded it with another bullet. A cast of Kimberly Malnory's pallet [sic] revealed that the Defendant then stuck the end of the barrel of the rifle inside Kimberly Malnory's mouth and pulled the trigger.

Authorities also discovered the Malnorys' 22 month old baby girl, Maranda, in the car seat inside the Malnorys' truck. The baby had been strapped inside the vehicle for well over 18 hours with the doors wide open, exposed to the elements overnight and for much of the next day. Little Maranda was found with mosquito bites over most of her body and her mother's blood over both the front and back of her clothes and on her shoe....

Although the evidence is in some dispute as to the exact series of events which occurred at the sod farm on the afternoon of April 6, 1997, it is not necessary for the Court to determine the precise sequence by which these horrible crimes were committed ....

Suffice it to say that the Court is convinced that Gregory Malnory was initially shot in the head by the Defendant at an angle slightly from behind. The Defendant may have then hit Kimberly Malnory in order to disable her. At some point the Defendant realized that Greg was not yet dead, and then the Defendant followed him out into the middle of the field where he bludgeoned him and slit his throat.

While the Defendant was completing the killing of Gregory Malnory, Kimberly Malnory did what she could to save Maranda. This explains the presence of her blood on the baby. Upon his return to the pickup truck, the Defendant then raped Kimberly Malnory, brutally beat her and executed her with his rifle.

Evidence of guilt presented by the State showed the following: Ford was seen with the victims in the area of the crime just prior to the killings; Ford was seen that evening in a distracted state with blood on his face, hands, and clothes; he was observed the next day, Monday, with scratches on his body; the rifle stock of a .22 caliber single-shot Remington rifle that belonged to Ford was found in a drainage ditch in the area where Ford's truck ran out of gas Sunday evening; DNA from human debris found inside an Old Timer's folding knife recovered from Ford's bedroom matched Greg Malnory's DNA type; DNA from a stain on a shoe in Ford's truck matched Kim Malnory's type; DNA from a stain on the seat cover in Ford's truck matched Kim's type; DNA from semen found on the shirt Kim was wearing when murdered matched Ford's type; DNA from vaginal swabs taken from Kim matched Ford's type.

Ford was convicted of sexual battery with a firearm, child abuse, and two counts of first-degree murder. During the penalty phase of the trial, Ford presented more than two dozen witnesses, including two mental health professionals and several family members and friends. The State presented evidence in rebuttal. The jury recommended death on each murder count by an eleven-to-one vote, and the court imposed a sentence of death on each count based on four aggravating circumstances,¹ several statutory mitigating circumstances,² and several nonstatutory mitigating circumstances.³ The court imposed a sentence of 19.79 years' imprisonment (with a three-year mandatory minimum term) on the sexual battery with a firearm count and a concurrent five-year sentence on the felony child abuse count. Ford raises six issues on appeal.⁴

II. GUILT PHASE

A. Prosecutorial Comments

Ford claims that the trial court erred in not granting a mistrial based on prosecutorial comments at four points in closing argument during the guilt phase. Ford claims that the court should have granted defense counsel's motion for a mistrial at the following points: (1) when Ford challenged the propriety of the prosecutor's football analogy that "the best defense is a good offense";⁵ (2) when Ford challenged the propriety of the prosecutor's statement that defense counsel (as well as the prosecutor) got the numbers confused when handling evidence at trial;⁶ (3) when Ford challenged the prosecutor's statement wherein the prosecutor invited jurors to consider the prospect of defense counsel questioning Alexander Graham Bell concerning the workings of the telephone;⁷ and (4) when Ford challenged the prosecutor's statement that defense counsel mixed up the numbers of a State exhibit.⁸ We disagree.

Both the prosecutor and defense counsel are granted wide latitude in closing argument.⁹ A mistrial is appropriate only where a statement is so prejudicial that it vitiates the entire trial.¹⁰ A trial court's ruling on a motion for a mistrial is within the sound discretion of the court and will be sustained on review absent an abuse of discretion.¹¹ In the present case, the trial court responded to defense counsel's objections by ruling in favor of the defense on each point: (1) The court sustained the objection and gave a cautionary instruction to the prosecutor; (2) the court sustained the objection; (3) the court sustained the objection; and (4) the court sustained the objection and gave a curative instruction to the jury. In light of the trial court's response, the prosecutor's statements —either individually or cumulatively —do not appear to be so prejudicial that no reasonable person would have allowed the trial to continue. We find no abuse of discretion.

B. Use of the Term "Flesh"

During direct examination of Dr. Martin Tracy, who was the State's expert on DNA statistics, the prosecutor asked Tracy a question concerning the "flesh" found inside Ford's folding knife.¹² Defense counsel objected to use of the word "flesh" and requested a mistrial. Ford claims that the court erred in failing to grant a mistrial. We disagree.

As noted above, a mistrial is appropriate only where a statement is so prejudicial as to vitiate the entire trial.¹³ A trial court's ruling on a motion for a mistrial is within the sound discretion of the court and will be sustained on review absent an abuse of discretion.¹⁴ In the present case, the trial court sustained the objection, denied defense counsel's motion for a mistrial, and gave a curative instruction as requested by defense counsel. The prosecutor's comment, when viewed in the context in which it was made, appears to be inadvertent and, in light of the court's corrective action, does not appear to be so prejudicial that no reasonable person would have allowed the trial to continue. We find no abuse of discretion.

C. The Child Abuse Charge

The indictment charged Ford with child abuse, among other offenses. After the State rested its case in the guilt phase, Ford filed a motion for judgment of acquittal and...