Fotopoulos v. State

Decision Date15 October 1992
Docket NumberNo. 77016,77016
Parties17 Fla. L. Weekly S643 Konstantinos X. FOTOPOULOS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Douglas N. Duncan of Wagner, Nugent, Johnson, Roth, Kupfer and Rossin, P.A., and Philip G. Butler, Jr., West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., and Kellie A. Nielan, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Konstantinos X. Fotopoulos appeals his numerous convictions and sentences, which include two sentences of death. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm the convictions and sentences.

The following is a brief summary of the facts that were developed at Fotopoulos' trial. During the summer of 1989, Fotopoulos began an affair with Deidre Hunt, a bartender at Fotopoulos' bar. Hunt testified that one day in mid-to-late October 1989 Fotopoulos, Hunt, and Kevin Ramsey drove out to an isolated rifle range. According to her testimony, after they arrived Fotopoulos told Hunt she was going to have to shoot Ramsey or she would die. Ramsey, who had been led to believe he was being initiated into a club, was tied to a tree. While Fotopoulos videotaped, Hunt shot Ramsey three times in the chest and once in the head with a .22. Fotopoulos then stopped taping and shot Ramsey once in the head with an AK-47. According to testimony, Ramsey was chosen as the victim because he was blackmailing Fotopoulos concerning Fotopoulos' alleged counterfeiting activities. The videotape of Hunt shooting Ramsey was recovered from Fotopoulos' residence pursuant to a search warrant. The voice on the tape was identified as that of Fotopoulos.

According to Hunt, Fotopoulos later used the videotape as leverage to insure that she would murder his wife, Lisa. Hunt was warned that if she did not cooperate the videotape of the Ramsey murder would be turned over to police. Hunt testified that Fotopoulos wanted Lisa dead so he could recover $700,000 in insurance proceeds. Fotopoulos later instructed Hunt that rather than kill Lisa herself she should hire someone to do the job. Prior to enlisting Bryan Chase to kill Lisa, Hunt offered three different individuals $10,000 to do the job. For various reasons, either the plans never materialized or the attempts to murder Lisa were unsuccessful. Chase then agreed to do the job for $5,000. He too botched several attempts to murder Lisa. However, on November 4, 1989, Chase entered the Fotopoulos home and shot Lisa once in the head. The shot was not fatal. After Chase shot Lisa, Fotopoulos shot Chase repeatedly in an attempt to make it appear that Chase was killed during a burglary.

Fotopoulos and Hunt eventually were charged with two counts of first-degree Fotopoulos testified in his own defense. He acknowledged his relationship with Hunt, but maintained that he had nothing to do with Ramsey's murder. He stated that he had loaned Hunt his business partner's video camera and she later gave him a tape as a surprise but he never looked at it. He admitted shooting Chase, but denied that he knew Chase was coming to shoot Lisa.

murder, two counts of attempted first-degree murder, two counts of solicitation to commit first-degree murder, one count of conspiracy to commit first-degree murder, and one count of burglary of a dwelling while armed. Hunt pled guilty to all charges. She was given two death sentences prior to testifying at Fotopoulos' trial. See Hunt v. State, 1992 WL 289670, No. 76,692 (Fla. Oct. 15, 1992).

A jury found Fotopoulos guilty of all charges and recommended that he be sentenced to death for each murder. The trial court followed the jury's recommendation. In connection with the Ramsey murder, the court found that 1) Fotopoulos was previously convicted of another violent felony; 2) the murder was committed for the purpose of avoiding or preventing a lawful arrest; and 3) the murder was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification. As to the Chase murder, the court found the three aggravating factors found in connection with the Ramsey murder plus 4) the murder was committed while Fotopoulos was engaged or was an accomplice in the commission or an attempt to commit a burglary; and 5) the murder was committed for pecuniary gain. Although no statutory mitigating factors were found, the following nonstatutory mitigating factors were found as to both murders: 1) Fotopoulos was a good son; 2) he came from a good family; 3) he was hard-working; 4) he had good manners and he had a good sense of humor; and 5) he completed his education through the master's level. Fotopoulos was sentenced to concurrent life sentences in connection with the remaining convictions.

Fotopoulos raises the following sixteen claims in this appeal: 1) the trial court erred by permitting the State to use peremptory challenges to exclude black prospective jurors; 2) the trial court erred in denying repeated motions to sever count one (the Ramsey murder) from the remaining counts; 3) the trial court erred in permitting the State to impeach Fotopoulos on the basis of prior misconduct; 4) the trial court erred in permitting the State to impeach Fotopoulos on the basis of his prior testimony; 5) the trial court erred in failing to conduct a Richardson 1 hearing; 6) the cumulative errors committed require a new trial; 7) the refusal to sever the Ramsey homicide from the Chase homicide resulted in the denial of due process during the advisory sentencing proceedings; 8) the trial court erred in permitting the State to introduce during the penalty phase hearsay statements that the defense did not have a fair opportunity to rebut; 9) the trial court erred in not instructing the jury as to the Ramsey murder pursuant to this Court's decision in Jackson v. State, 502 So.2d 409 (Fla.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3198, 96 L.Ed.2d 686 (1987); 10) the trial court improperly found that the Ramsey homicide was committed in a cold, calculated, and premeditated manner; 11) the trial court erred in denying the defense's motion to sever the Chase murder from the Ramsey murder; 12) the trial court erred in finding that the Chase murder was committed while Fotopoulos was engaged in a burglary; 13) the trial court improperly doubled its consideration of the pecuniary gain and cold, calculated, premeditated aggravators; 14) the trial court improperly doubled its consideration of the pecuniary gain and witness-elimination aggravators; 15) the aggravating circumstance of cold, calculated, and premeditated is unconstitutional; and 16) Florida's death penalty is unconstitutional.

JURY SELECTION

First, we find no merit to Fotopoulos' contention that the State was allowed to use peremptory challenges to exclude At the time the State challenged Mrs. Bostic, defense counsel noted that the prospective juror was black and objected. The trial court noted that the defendant is white and there were four black jurors. When asked by the court, the defense declined to elaborate as to how it was prejudiced by the State's challenge. The prosecutor pointed out that two black jurors had already been accepted by the State. He then explained that he challenged Mrs. Bostic because her son had been involved with the juvenile section of the State Attorney's office since 1987 and he felt Mrs. Bostic's extensive exposure to the office would make it difficult for her to maintain impartiality. Defense counsel's only response to this reason was that Mr. Grisham and several others had children who had been involved with the law. The trial court found that the defense had failed to meet its initial burden of demonstrating that there was a strong likelihood that the State was exercising peremptory challenges in a racially discriminatory manner. The court also found that the State had given a racially neutral explanation for the challenge.

black prospective jurors contrary to this Court's decision in State v. Neil, 457 So.2d 481 (Fla.1984), clarified, State v. Castillo, 486 So.2d 565 (Fla.1985), and clarified, State v. Slappy, 522 So.2d 18 (Fla.), cert. denied 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988), and limited by Jefferson v. State, 595 So.2d 38 (Fla.1992). In this case, the State used two peremptory challenges to exclude black prospective jurors from the jury. The first black juror excluded was Mrs. Bostic; the second was Mrs. Gordon.

Although broad leeway should be granted a defendant attempting to make a prima facie showing that a likelihood of discrimination exists, State v. Slappy, 522 So.2d 18 (Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988), a trial court is vested with broad discretion in determining whether peremptory challenges are racially motivated. Reed v. State, 560 So.2d 203 (Fla.) cert. denied, --- U.S. ----, 111 S.Ct. 230, 112 L.Ed.2d 184 (1990). We find no abuse of discretion in connection with the trial court's findings.

The fact that a juror has a relative who has been charged with a crime is a race-neutral reason for excusing that juror. Bowden v. State, 588 So.2d 225, 229 (Fla.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1596, 118 L.Ed.2d 311 (1992). Fotopoulos' claim that this reason is not supported by the record was not raised below and therefore has been waived. 588 So.2d at 229. As noted above, defense counsel's only response to the asserted reason was that Mr. Grisham and several other jurors had children who had been involved with the law. The record demonstrates that Mr. Grisham's situation was distinguishable from that of Mrs. Bostic. It was Mr. Grisham's stepson, who had never lived with him, who had been involved with the law. In fact, after further questioning it was revealed that Mr. Grisham had been one of his stepson's victims and his dealings with the State Attorney's office was as a victim. Likewise, there is no indication that...

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