Gibson v. State, 97-03477.

• Decision Date: 28 October 1998
• Docket Number: No. 97-03477.,97-03477.
• Citation: 721 So.2d 363
• Parties: Mark L. GIBSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

721 So.2d 363

Mark L. GIBSON, Appellant, v. STATE of Florida, Appellee.

No. 97-03477.

District Court of Appeal of Florida, Second District.

October 28, 1998.

Donald A. Smith, Jr., of Smith & Tozian, P.A., Tampa, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Jean-Jacques Darius and Michael J. Scionti, Assistant Attorneys General, Tampa, for Appellee.

ALTENBERND, Acting Chief Judge.

Mark L. Gibson appeals his judgments and sentences for capital sexual battery and lewd and lascivious acts upon an 8-year-old victim. We affirm. Neither the conduct of law enforcement during pretrial interviews nor the events immediately preceding this trial resulted in preserved, reversible error. Although a sentence of life with no possibility of parole—effectively imprisonment until death—must seem harsh from the perspective of this 23-year-old prisoner with no prior criminal record, he was convicted of a serious offense for which this penalty is neither cruel nor unusual.

I. THE EVIDENCE

Mr. Gibson was the stepfather of the 8-year-old female victim. On Friday, January 17, 1997, the mother and the victim were watching a television show involving a young child who had been sexually molested. The mother asked her daughter if anything similar had ever occurred to her. Initially, the child put her head down and would not answer. Following a few more questions, she said that her "daddy" had touched her. The child did not provide any detailed description of the events.

The mother placed the child in her car and drove to her husband's place of employment. She confronted him about the allegations. She testified that he admitted that he had "messed" with the child. She did not ask her husband for details of these events, but learned that the last occurrence had been in early January. The mother asked Mr. Gibson to leave the home, but did not immediately report the matter to the police. The mother revealed this incident to her own mother, who reported the matter to the sheriff's department. A deputy sheriff came to the home on Sunday, January 19, 1997, and filed a report. A few days later, a detective interviewed the child and Mr. Gibson. At trial, the deputy did not testify concerning the statements of the victim. He primarily testified regarding his recorded interview of Mr. Gibson, which took place in a police interrogation room. An edited transcript of that interview was read to the jury.

At the beginning of the interview, the officer read Mr. Gibson his Miranda¹ rights. After reading these rights, the officer stated: "A lot of legal garbage but it basically comes down to the point that you don't have to talk to me if you don't want to." Mr. Gibson then asked the officer whether the victim was present behind a two-way mirror. Once he knew the victim was not present, he agreed to talk to the officer. After initially denying any wrongdoing, Mr. Gibson's statement gradually evolved toward admitting misconduct. Near the end of the interview, the detective asked:

Okay. So, your penis has actually touched her vaginal area? I'm not saying up inside, but it's touched the lips of her vaginal area?

Mr. Gibson answered the question: "Yes, sir."

The victim was the first witness to testify at trial. During direct examination, she testified that Mr. Gibson put his hand or fingers into her "private part." She also claimed that he put his private part "halfway" into her private part and that it hurt. Each of these acts occurred on several occasions. In addition, she said he also touched her bottom with his mouth and his private part. She touched his private part with her hands because he told her to do this. On cross-examination, the victim confirmed that she knew the meanings of the words "vagina" and "penis," and that Mr. Gibson had placed his penis into the opening of her vagina. Her vagina did not bleed. She explained that, on several occasions, "white stuff" had come out of his penis during these events. The fluid came out when his penis was "soft." She further testified that Mr. Gibson licked her vagina.

A nurse, who had examined the victim in late January, testified that her examination of the victim was essentially normal. The child's hymen was intact. Although this physical examination would not be consistent with extensive penetration of the child's vagina by an adult penis, it did not rule out the possibility that Mr. Gibson's penis touched the opening of her vagina. The nurse, who was an experienced member of a child protective team, testified that girls with little sexual experience sometimes confuse insertion of a penis into the labia with vaginal penetration.

II. AMENDING THE INFORMATION AND CHANGING LAWYERS PRIOR TO TRIAL

The original information in this case charged Mr. Gibson with three counts of capital sexual battery based on penile penetration or union, digital penetration, and oral union. The information included a fourth count of lewd and lascivious conduct based on Mr. Gibson's request to have the child touch his penis. On the Friday before trial in June 1997, the State amended the information to allege two counts of capital sexual battery, dropping the charge of oral union. The amended information included three counts of lewd and lascivious conduct, adding charges based on improper contact with the victim's buttocks and fondling the victim's vagina. It is clear that the State was not adding any new incidents to the information, but was merely attempting to reconfigure the charges arising out of the events as reported in January.

On Monday, immediately preceding trial, Mr. Gibson moved for a continuance. Although he was concerned with the amendment to the information, he was primarily concerned that the public defender had unilaterally assigned his attorney to another division. Mr. Gibson had been assigned a new assistant public defender to defend his capital felony charges only one working day before the trial. The trial court denied the continuance, maintaining that the policy decision of the public defender's office was not the court's concern. After jury selection, Mr. Gibson was represented by both his original lawyer and the new lawyer.

III. THE VERDICT

At the conclusion of the case, the jury convicted Mr. Gibson of capital sexual battery on the charge of penile penetration or union, and of lewd and lascivious conduct for the touching of his penis and for his touching of the victim's buttocks. The jury acquitted him of the remaining charges. As the jury was leaving the courtroom, the judge began adjudicating Mr. Gibson and then commented: "Am I correct, as to the first count of the information, the penalty is life imprisonment without possibility of parole?" The assistant state attorney confirmed that this was the mandatory sentence.

Mr. Gibson refused to be fingerprinted. As the court was resolving that problem, the jury returned to the courtroom. One of the jurors, not the foreperson, made a passionate speech, explaining that the jury concluded that something bad had happened in the child's home, but that the misconduct was not entirely Mr. Gibson's fault. Near the end of his speech, the juror said:

We feel the defendant deserves to be punished. I heard you say something about a life sentence. He doesn't deserve a life sentence. I hope it is not a mandatory life sentence. If I would have known that, I don't think I would have voted guilty for it.

If I were King, I would take this child and put it with a different family altogether and hope that she had a great life. This is not to disparage your son or Mrs. Gibson. It's just a very sad situation, and we're all very concerned for the welfare of the child.

Then, the juror turned to the other jurors and said: "Does anybody else have anything they may want to add, or did I sum it up pretty well?" The court reporter then placed in the transcript the comment, "Jurors indicating affirmatively."

The trial court imposed the mandatory life sentence at a later hearing, after Mr. Gibson had rejected an unusual post-verdict proposal from the State that he plead guilty to some offense and waive his appellate rights in exchange for a sentence of imprisonment with the possibility of release after 25 years.

IV. THE ISSUES RELATING TO THE CONVICTION

For the first time on appeal, Mr. Gibson argues that his statements to the detective should have been suppressed because he did not make a knowing and voluntary waiver of his Miranda rights. See Moran v. Burbine, 475 U.S. 412, 422, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986); Brookins v. State, 704 So.2d 576, 577 (Fla. 1st DCA 1997); State v. Mallory, 670 So.2d 103, 106-107 (Fla. 1st DCA 1996). He emphasizes both the detective's characterization of the United States Supreme Court decision as "legal garbage," and the officer's failure to point out that the crime as described by the victim would result in a mandatory sentence of life imprisonment without possibility of parole.

The State responds that this issue is not preserved. We agree that Mr. Gibson's attorneys never filed a motion to suppress his statement and affirmatively indicated no objection to its introduction into evidence. Thus, this issue cannot be reviewed on direct appeal. See § 924.051, Fla. Stat. (Supp. 1996).

Mr. Gibson also argues that the trial court erred in refusing to grant his motion for continuance, based on the amendment to the information and on the change in his legal representation. Concerning the late amendment to the information, it is not clear from the record that his attorneys perfected an objection to this amendment. The amendment was briefly addressed during a much longer discussion about the problem created by the shuffling of attorneys in the public defenders' office. In light of the failure of the lawyers to suggest how this amendment changed their defense strategy in any fashion, and given that the amendment did not add a new factual basis for these charges and actually downgraded one of the charges, ...