Gibson v. State, 81769

• Decision Date: 05 October 1995
• Docket Number: No. 81769,81769
• Citation: 661 So.2d 288
• Parties: 20 Fla. L. Weekly S512 Brian Keith GIBSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 288

661 So.2d 288

20 Fla. L. Weekly S512

Brian Keith GIBSON, Appellant, v. STATE of Florida, Appellee.

No. 81769.

Supreme Court of Florida.

Oct. 5, 1995.

James Marion Moorman, Public Defender and Paul C. Helm, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General and Robert J. Landry, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

This is an appeal by Brian Keith Gibson from his criminal convictions and sentences, including a conviction for first-degree murder and a sentence of death. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const. We affirm appellant's convictions but remand for resentencing, and, because the trial judge failed to enter written sentencing orders in accord with statutory and case law, we vacate Gibson's sentence of death.

FACTS

The following facts are based on the evidence presented at trial. In the morning hours of September 30, 1991, Lupita Luevano was murdered in her home. Richard Murrish, her live-in boyfriend, found her nearly nude body lying face down on the bed of the master bedroom. The room was in disarray and the contents of her purse were scattered on the floor, although nothing of value was missing. Murrish also observed that the bed The police found an Indianhead charm underneath the master bedroom bed and a gold chain on the bed. A shirt was tied around part of Luevano's face and neck. Her underwear was ripped and pulled up around her waist, and a pair of white shorts was found next to her body. In the back bedroom, they discovered an open jalousie with a cut screen and fingerprint smudges on the wall below the window. Inside the room, a green towel was found on the bed that appeared to have blood on it. Outside, beneath the open window, the police found a ladder, cement block, bucket, and an unopened bottle of a soft drink, Sprite. The officers also observed a shoe print with a triangular, diamond, or round dimple pattern; however, a pattern cast was never taken. A portion of the back fence was pressed down and it looked like someone had been standing there in the grass.

was twisted sideways, and the dresser had been moved. Blood was splattered on the walls, floor, dresser, and ceiling. Next to Luevano's body was a barbell with a three-pound weight attached, and a three-pound weight was also found at the foot of the bed. An autopsy showed that Luevano had likely died of blunt injuries to the face and skull, although, based on bruising on the back of her neck, the medical examiner could not rule out strangulation as a contributing factor.

Gibson had reported to work at approximately 4 a.m. on September 30 at the Clewiston Fertilizer Plant, located across a canal from Luevano's home. That morning, Gibson was working alongside three other men: Jay Odum, Kenneth Bryant, and Matthew Street. At approximately 4:43 a.m., Gibson weighed in a truckload of fertilizer. At 6:30 a.m., when Odum received an order to mix another load of fertilizer, Gibson could not be located and the load was made without him. All three of his co-workers testified that they did not see Gibson for the hour and a half preceding that second load. Sometime between 7:15 and 7:30 a.m., when Gibson returned to the plant, Odum noticed Gibson had fresh scratches on his face and a bruise under his eye, injuries that were not present earlier that morning. Bryant testified that Gibson looked like he had been in a fight. Several other co-workers also testified that Gibson looked like he had been fighting because of the scratches on his face on the morning of the murder. When asked how he sustained the scratches, Gibson gave contradictory stories to various individuals.

Randy Perryman, an employee at Super Stop, a convenience store near the plant, testified that Gibson entered his store about 5:30 a.m. on September 30 and purchased a bottle of Sprite. Kimberly Murphy, a dispatcher/bookkeeper at Gibson's workplace, testified that on the morning of the murder, between 7:10 a.m. and 7:15 a.m., she saw Gibson off plant property walking along the The police received an anonymous call on the morning of the murder that a Mexican male was seen running towards the Cuban market, but no witnesses verified this report. Several of his co-workers testified that Gibson told them that he had seen a Mexican male running towards the market.

canal. She noticed he was wearing a white T-shirt and work pants or blue jeans, but she did not notice any stains on his clothing.

A few days after the murder, and after Gibson was given Miranda warnings, he gave police a taped statement. He told police that on the morning of the murder he had seen a Hispanic male running from the direction of Luevano's home holding his stomach. During this interview, Detective Cassells noticed scratches under Gibson's eye and chin. Gibson stated that his dog had injured him. Approximately eleven days after his initial statement, Gibson was asked to come to the police station to discuss the chain and charm found at the murder scene. At this time, Gibson told police that his jewelry was at home, and they could verify its identity with his wife Roxanne. Numerous witnesses, including Gibson's wife and girlfriend, identified the Indianhead charm and gold chain found at the murder scene as Gibson's. In addition, DNA evidence matching Gibson's was found in Luevano's vaginal area and at the scene, and Gibson's fingerprints were found outside the window of the Luevano residence.

The jury found Gibson guilty of all counts. As to the murder charge, the jury recommended death by a vote of seven to five. The trial court orally approved the jury's recommendation and orally sentenced Gibson to death. No written sentencing order was ever entered. As to the burglary count, the trial court departed from the sentencing guidelines and imposed a life sentence consecutive to the death sentence, but also failed to provide written reasons for the departure sentence.

GUILT PHASE CLAIMS

Gibson raises three claims ¹ relating to the guilt phase of the trial: (1) The trial court violated Gibson's right to be present and to the assistance of counsel by denying his counsel's request to consult with Gibson before exercising peremptory challenges. (2) The trial court violated Gibson's right to confront adverse witnesses by limiting his cross-examination of his wife. (3) The trial court erred by admitting the testimony of his wife and his girlfriend concerning his requests to have anal intercourse with them.

JURY SELECTION

During a small portion of a long jury selection process, Gibson's lawyer asked the trial court whether he could take a ten-minute recess to permit him to consult with his client:

Mr. Rinard: Your Honor, if I may have--if we may take an afternoon recess so I may have ten minutes or so to speak with Mr. Gibson to advise him of some things and see how he would like for me to proceed.

The Court: Let's proceed with this round. Are there any additional challenges for cause?

By this exchange, it is apparent the trial court implicitly denied counsel's request for a recess, and directed counsel to proceed with his challenges for cause. The record reflects that immediately thereafter, without further comment or objection, Gibson's counsel began making challenges for cause to the jury panel.

Based on this brief exchange, Gibson claims error in two respects. First, he argues that the trial court violated his right to be present with counsel during the challenging of jurors by conducting the challenges in a bench conference. Second, he argues that the trial court violated his right to the assistance of counsel by denying defense counsel's request to consult with Gibson before exercising peremptory challenges.

In Steinhorst v. State, 412 So.2d 332 (Fla.1982), we said that, "in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal

                ground for the objection, exception, or motion below."   In this case, we find that Gibson's lawyer did not raise the issue that is now being asserted on appeal.  If counsel wanted to consult with his client over which jurors to exclude and to admit, he did not convey this to the trial court.  On the record, he asked for an afternoon recess for the general purpose of meeting with his client.  Further, there is no indication in this record that Gibson was prevented or limited in any way from consulting with his counsel concerning the exercise of juror challenges.  On this record, no objection to the court's procedure was ever made.  In short, Gibson has demonstrated neither error nor prejudice on the record before this Court.  Cf. Coney v. State, 653 So.2d 1009, 1013 (Fla.1995) (holding trial court's error in conducting pretrial conference where juror challenges were exercised in absence of defendant was harmless beyond reasonable doubt)
                

CROSS-EXAMINATION

Gibson's second challenge to the guilt phase of his trial concerns the trial court's alleged error in limiting his cross-examination of his wife, Roxanne, as to whether she had heard he was having an affair with the victim. Gibson claims this question was critical to demonstrate her motive and bias in testifying against him.

Initially, we agree with Gibson that Roxanne's state of mind and possible motive for testifying were permissible subjects for inquiry. Our evidence code liberally permits the introduction of evidence to show the bias or motive of a witness. In relevant part, section 90.608(2) states:

Any party, including the party calling the witness, may attack the credibility of a witness by:

(2) Showing that the witness is biased.

Sec. 90.608(2), Fla.Stat. (1993). We further recognize that a defendant's right to cross-examine witnesses is secured by the Sixth Amendment to the United States Constitution and article I, section 16 of the Florida Constitution. Inherent within this right is a defendant's right to expose a witness's motivation in testifying because it is "the...