Geralds v. State

Decision Date22 February 1996
Docket NumberNo. 81738,81738
Citation674 So.2d 96
Parties21 Fla. L. Weekly S85 Mark Allen GERALDS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

An Appeal from the Circuit Court in and for Bay County; Don T. Sirmons, Chief Judge; Case No. 89-0495.

Nancy A. Daniels, Public Defender and W.C. McLain, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General and Gypsy Bailey, Assistant Attorney General, Tallahassee, for Appellee.


Mark Allen Geralds appeals the imposition of the death penalty on resentencing. We have jurisdiction based on article V, section 3(b)(1), of the Florida Constitution. For the reasons expressed below, we affirm the reimposition of the death penalty.

Geralds was convicted and sentenced to death in February 1990 for the first-degree murder of Tressa Lynn Pettibone. On appeal, this Court affirmed Geralds' conviction but, due to trial court errors, remanded for resentencing and a new penalty phase hearing. See Geralds v. State, 601 So.2d 1157 (Fla.1992). 1

After the new penalty phase hearing, the jury recommended death by a twelve-to-zero vote. At sentencing, the trial court found the following aggravating factors: (1) the murder was committed during the commission of a robbery and/or burglary; 2 (2) the murder was especially heinous, atrocious, or cruel; 3 and (3) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. 4 The court found the statutory mitigator of age 5 but afforded it little weight. The defendant was twenty-two years old at the time of the offense. As for non-statutory mitigation, the trial court found the following but gave them "very little weight": (1) defendant's love and concern for his daughter and former wife; (2) defendant came from a divorced family and was unloved by his mother; and (3) defendant's antisocial behavior and bipolar manic personality. The trial court determined the aggravating factors outweighed the mitigating factors and sentenced Geralds to death.

On appeal, Geralds raises ten claims. 6 At the outset, we note that claims six and seven are procedurally barred because defense counsel failed to object with the requisite specificity in the trial court. See Jackson v. State, 648 So.2d 85, 90 (Fla.1994); Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982).

As his first issue on appeal, Geralds argues that the trial court abused its discretion in denying his motion for continuance to secure Dr. William Sybers as a witness at the conclusion of the defense's case. We cannot agree. "While death penalty cases command [the Court's] closest scrutiny, it is still the obligation of an appellate court to review with caution the exercise of experienced discretion by a trial judge in matters such as a motion for a continuance." Cooper v. State, 336 So.2d 1133, 1138 (Fla.1976); see also Rose v. State, 461 So.2d 84, 87 (Fla.1984), cert. denied, 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 706 (1985). The denial of a motion for continuance should not be reversed unless there has been a palpable abuse of discretion; this abuse must clearly and affirmatively appear in the record. Magill v. State, 386 So.2d 1188 (Fla.1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981).

To prevail on his motion for continuance, the defendant was required to show: (1) prior due diligence to obtain the witness's presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance caused material prejudice. United States v. O'Neill, 767 F.2d 780, 784 (11th Cir.1985); see also Robinson v. State, 561 So.2d 419, 421 (Fla. 1st DCA 1990); Goree v. State, 411 So.2d 1352, 1353 (Fla. 3d DCA 1982). Geralds has failed to demonstrate compliance with any of these requirements. 7 Accordingly, we find that the trial court did not abuse its discretion in denying the appellant's motion for continuance.

Geralds' second claim is that the prosecutor's cross-examination of him during the penalty phase proceeding was beyond the scope of his testimony on direct examination about evidence linking him to the murder. Section 90.612(2), Florida Statutes (1993), states that "[c]ross-examination of a witness is limited to the subject matter of the direct examination and matters affecting the credibility of the witness." We have defined the permissible bounds of cross-examination as follows:

When the direct examination opens a general subject, the cross-examination may go into any phase, and may not be restricted to mere parts ... or to the specific facts developed by the direct examination. Cross-examination should always be allowed relative to the details of an event or transaction a portion only of which has been testified to on direct examination. As has been stated, cross-examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut, or make clearer the facts testified to in chief....

Coco v. State, 62 So.2d 892, 895 (Fla.1953) (quoting 58 Am.Jur. Witnesses, § 632, at 352 (1948)); see also Coxwell v. State, 361 So.2d 148, 151 (Fla.1978). In addition to the facts and circumstances connected to the matters testified to during direct examination, section 90.612(2) provides that all witnesses may be cross-examined concerning their credibility. Moreover, the trial judge has wide discretion to impose reasonable limits on cross-examination. Jones v. State, 580 So.2d 143, 145 (Fla.), cert. denied, 502 U.S. 878, 112 S.Ct. 221, 116 L.Ed.2d 179 (1991).

During his testimony on direct examination, Geralds covered six general subjects ranging from his personal history to learning from his wife that, after his arrest, she had been threatened by two individuals. Geralds also denied killing Tressa Pettibone and stated that he worked in the Pettibone home for two or three months. We find that by denying on direct examination that he murdered Tressa Pettibone, Geralds opened the door to be examined or impeached with evidence that linked him to the murder. Accordingly, we find no abuse of discretion by the trial court in permitting the state's cross-examination.

Geralds next argues the trial court abused its discretion by allowing Dr. James Lauridson, a pathologist who had not performed the victim's autopsy, to offer expert testimony as to the manner and cause of death of the victim. 8 The determination of a witness's qualifications to express an expert opinion is peculiarly within the discretion of the trial judge, whose decision will not be reversed absent a clear showing of error. Ramirez v. State, 542 So.2d 352, 355 (Fla.1989). An expert is permitted to express an opinion on matters in which the witness has expertise when the opinion is in response to facts disclosed to the expert at or before the trial. § 90.704, Fla.Stat. (1993); see Capehart v. State, 583 So.2d 1009 (Fla.1991) (holding chief medical examiner, who based her opinion on autopsy report, toxicology report, evidence receipts, photographs of body, and all other paperwork filed in case, could testify regarding cause of death and condition of victim's body, although she did not perform autopsy), cert. denied, 502 U.S. 1065, 112 S.Ct. 955, 117 L.Ed.2d 122 (1992).

The trial judge's ruling in this case does not represent a "clear showing of error." Although there may be a difference of opinion regarding the weight to be given to Dr. Lauridson's testimony concerning the manner and cause of the victim's death, its admissibility was within the properly exercised discretion of the trial judge. See Dragon v. Grant, 429 So.2d 1329, 1330 (Fla. 5th DCA 1983).

Moreover, there was no potential taint from Dr. Lauridson basing his opinion on the materials Dr. Sybers prepared and compiled because Dr. Lauridson based his independent conclusions largely on the objective evidence. Dr. Lauridson arrived at his conclusions by reviewing: (1) two to three hundred Kodachrome slides taken at the murder scene and during the autopsy; (2) written records prepared by Dr. Sybers; and (3) Dr. Sybers' previous testimony he offered in this case. Given the wealth of objective evidence (i.e., the slides) upon which Dr. Lauridson based his opinions, the trial court did not abuse its discretion in permitting Dr. Lauridson to testify.

As his fourth claim, Geralds argues that the trial court erred in refusing to instruct the jury that prior convictions for non-violent felonies are not aggravating circumstances. In Maggard v. State, 399 So.2d 973 (Fla.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981), we held that after a defendant expressly waives any reliance on the mitigating factor of "no significant prior criminal activity," the state is not allowed to present extensive evidence of defendant's prior criminal record of non-violent offenses to rebut the mitigating factor upon which the defendant expressly stated he would not rely. 9 Id. at 977; see also Geralds, 601 So.2d at 1162 (stating that "a defendant's convictions for non-violent felonies are inadmissible evidence of nonstatutory aggravating circumstances").

In this case, the defendant did waive reliance on the mitigating factor of no significant prior criminal activity. However, it was the defendant, not the state, who presented evidence of the defendant's prior non-violent felony convictions. 10 Therefore, our decision in Maggard is inapplicable. Pangburn v. State, 661 So.2d 1182 (Fla.1995). Consequently, the defendant was not entitled to an instruction that directed the jury not to consider his prior non-violent felony convictions as an aggravating circumstance. See Fla.Std.Jury Instr. (Crim.) 78 (providing that only if the defendant offers evidence of no significant history of prior criminal...

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