Hamilton v. State, 86021

• Decision Date: 23 October 1997
• Docket Number: No. 86021,86021
• Parties: 22 Fla. L. Weekly S673 Richard Eugene HAMILTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1038

703 So.2d 1038

22 Fla. L. Weekly S673

Richard Eugene HAMILTON, Appellant, v. STATE of Florida, Appellee.

No. 86021.

Supreme Court of Florida.

Oct. 23, 1997.

Rehearing Denied Jan. 8, 1998.

Nancy A. Daniels, Public Defender and David A. Davis, Assistant Public Defender, Second Judicial Circuit, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General and Carolyn M. Snurkowski, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty on Richard Eugene Hamilton. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm.

Richard Hamilton and Anthony Wainwright escaped from a North Carolina prison, stole guns and a Cadillac, and headed for Florida. When the car overheated, April 27, 1994, in Lake City, Florida, they abducted Carmen Gayheart, a young mother of two, at gunpoint from a Winn-Dixie parking lot as she loaded groceries into her Ford Bronco. The men stole the Bronco and proceeded north on I-75. They raped, strangled, and executed Gayheart by shooting her twice in the back of the head. The men were arrested the next day in Mississippi following a shootout with a trooper.

Hamilton gave several statements to police wherein he admitted kidnapping, robbing, and raping Gayheart, but he claimed Wainwright strangled and shot her. Wainwright, on the other hand, admitted participating in the kidnapping and robbery, but asserted that Hamilton raped and killed her. Hamilton was charged with first-degree murder, sexual battery, robbery, and kidnapping, all with a firearm, and was found guilty as charged. During the penalty phase, Hamilton called two relatives and a friend, who testified that he grew up in a dysfunctional family in a poor neighborhood, and was shot in the eye with a BB gun as a child. The jury recommended death by a ten-to-two vote and the judge imposed a sentence of death based on six aggravating circumstances, ¹ no statutory mitigating circumstances, and five nonstatutory mitigating circumstances. ² Hamilton raises nine issues on appeal. ³

At trial, the defense attempted to portray co-perpetrator Wainwright as the "bad guy" and true killer, and presented testimony of inmates to whom Wainwright had confessed, in a bragging way, that he was the shooter. On rebuttal, the State presented the testimony of Wainwright's cellmate, Robert Murphy, in an attempt to show that Wainwright's self-inculpatory claims were not to be believed because he had made similar claims about shooting the Mississippi trooper (and this was patently untrue). The following transpired:

Q. Did he say whether or not she [Gayheart] was naked or clothed when she was killed?

A. Naked.

Q. Did he tell you that he killed anybody else?

A. He did. He mentioned something about after they had escaped on the way down from wherever they had escaped from, South Carolina, or North Carolina, somewhere, that they run across some black people, a drug dealer or whatever, they robbed and killed them. He didn't go into no detail about that. That was about it.

....

MR. HUNT: Judge, I object to the testimony solicited from the witness that, on the grounds that it is testimony that the defendant was involved in a murder for which he has not been accused, for which the State has not offered any prior indication they would offer evidence.

MR. DEKLE: I didn't know he was going to say that.

....

MR. DEKLE: ... I expected Mr. Murphy to testify to the killing of a Mississippi State highway patrolman, and I was quite surprised by what he said. I was offering that testimony to show that Mr. Wainwright is a bald faced liar.

The court offered to instruct the jury that there had in fact been no other murder, but defense counsel balked, claiming that this would bolster the State's theory that Wainwright was a "bald faced liar." After some discussion (and with the approval of both sides), the court gave the following curative instruction: "Members of the jury, you are to disregard the last statement by this witness. It is not to play any part in your decision in this case." Hamilton now claims that Murphy's improper statement concerning the fictional murder requires reversal. We disagree.

A mistrial is appropriate only where the error is so prejudicial as to vitiate the entire trial. See, e.g., Buenoano v. State, 527 So.2d 194, 198 (Fla.1988). A ruling on a motion for mistrial is within the trial court's discretion. See, e.g., Merck v. State, 664 So.2d 939, 941 (Fla.1995). In the present case, the improper comment was unanticipated by the State and was brief. The court offered to instruct the jury that there had been no other murder but defense counsel declined. An alternative instruction was given. On this record, we cannot say that the court abused its discretion in denying the motion for mistrial--i.e., reasonable persons could agree with the trial court's ruling. See Huff v. State, 569 So.2d 1247, 1249 (Fla.1990). We find no error.

During Murphy's testimony, the prosecutor attempted to elicit from Murphy his earlier version of the crime wherein Murphy said that Wainwright told him that "we strangled her." The following transpired:

Q. What did he tell you?

A. He told me that him and his partner had broke out of prison and come down to Florida and run up on this lady at some sort of store or something, and abducted her and her truck or van, whatever it was, vehicle, and took her to the woods, and had sex with her and this and that. And then Wainwright had her get out of the truck and lay in front of it on the ground buck naked, and commenced to strangle her. And what he told me that she didn't die. I said, "What do you mean, she didn't die?" You know, he said, "Well, like when you hit a puppy in the head and it kind of kicks before it dies, that's what she was doing. And that's when I shot her in the back of the head twice and drug her off in the ditch."

Q. Did he say, "I strangled her," or "we strangled her"?

A. He said, "I strangled her."

Q. Are you sure about that?

A. I think so, yes.

Q. Do you recall being interviewed at the Taylor County Correctional Institution on February the 23rd?

MR. HUNT: I object, and ask to approach.

At that point, defense counsel argued that the State was improperly impeaching its own witness, and the prosecutor countered by saying that he was simply trying to refresh Murphy's recollection with his prior inconsistent statement. The court allowed the inquiry to continue and Murphy eventually explained that he may have said "we" at the earlier interview but currently could not remember. Hamilton now claims that the above dialogue constituted improper testimony because the impeachment served as "mere subterfuge" for getting the prior inconsistent statement before the jury. See generally § 90.608, Fla. Stat. (1995). We disagree.

Hamilton's argument is belied by both the record and his own brief. The record contains no indication whatsoever that the prosecutor knew ahead of time that Murphy would say, "I strangled her," instead of "we strangled her." There is nothing in the transcript of the proceeding that would have alerted the trial court to this possibility. Further, Hamilton's brief concedes as much: "In this case, Murphy's testimony that only Wainwright strangled Gayheart differed from what the prosecutor expected him to say: that Wainwright and Hamilton had strangled her." On this record, we cannot say that the trial court abused its discretion in concluding that the prosecutor was proceeding in good faith. See Huff v. State, 569 So.2d 1247, 1249 (Fla.1990). We find no error.

On cross-examination of State witness Robert Kinsey (a law enforcement officer to whom Hamilton had given a statement), defense counsel inquired at length about Hamilton's account of the crime. On redirect examination, the prosecutor elicited testimony showing that whereas Hamilton had told Kinsey that he had thrown the murder weapon away near Colquit, Georgia, the weapon in fact had been found near Quitman, many miles away. Hamilton now claims that this inquiry was an improper attempt to show that he was a liar. We disagree. The record shows that the prosecutor's inquiry constituted a fair exploration of the accuracy of Hamilton's statement as it related to the facts and circumstances of the crime. Cf. § 90.404, Fla. Stat. (1995) (excluding character evidence in general). We find no error.

Hamilton claims as his fourth point that he is entitled to a new trial because the court refused to give his requested instruction on withdrawal. We disagree. The standard for giving an instruction on withdrawal is as follows:

To establish the common-law defense of withdrawal from the crime of premeditated murder, a defendant must show that he abandoned and renounced his intention to kill the victim and that he clearly communicated his renunciation to his accomplices in sufficient time for them to consider abandoning the criminal plan. For a defendant whose liability is predicated upon the felony murder theory, the required showing is the same and the defense is available even after the underlying felony or felonies have been completed. Again the defendant would have to show renunciation of the impending murder and communication of his renunciation to his co-felons in sufficient time to allow them to consider refraining from the homicide.

....

Appellant correctly points out that a defendant is entitled to have the jury instructed on the rules of law applicable to his theory of defense if there is any evidence to support such instructions. If there is any evidence of withdrawal, an instruction should be given. The trial judge should not weigh the evidence for the purpose of determining whether the instruction is appropriate. Appellant's pretrial statement [wherein he said that he tried to talk the codefendant out of the murder], however, testified to by a state witness, seems hardly sufficient to raise the issue of...