Hansbrough v. State, 67463

• Decision Date: 18 June 1987
• Docket Number: No. 67463,67463
• Parties: 12 Fla. L. Weekly 305 Kirk Allen HANSBROUGH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1081

509 So.2d 1081

12 Fla. L. Weekly 305

Kirk Allen HANSBROUGH, Appellant, v. STATE of Florida, Appellee.

No. 67463.

Supreme Court of Florida.

June 18, 1987.

Rehearing Denied Aug. 12, 1987.

Chandler R. Muller and Warren W. Lindsey of Muller, Kirkconnell and Lindsey, P.A., Winter Park, for appellant.

Robert A. Butterworth, Atty. Gen., and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Hansbrough appeals his conviction of first-degree murder and sentence of death. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm his conviction. Because we find that he should not have been sentenced to death, however, we vacate Hansbrough's death sentence and remand to the trial court to impose a term of life imprisonment with no possibility of parole for twenty-five years.

On June 20, 1984 a customer entered an insurance agency's office and found the agency's employee dead. The victim had been stabbed over thirty times, and money was missing from the office. An Orlando policeman stopped Hansbrough on July 17, 1984 for traffic infractions and, after checking, arrested him for driving with a suspended license. While in custody Hansbrough stated that he had been at the scene of the homicide on the day the crime occurred. The police arrested him for this murder on July 23, 1984. After trial, the jury convicted Hansbrough of first-degree felony murder and armed robbery and recommended that he be sentenced to life imprisonment. The trial court overrode that recommendation, however, finding that four aggravating circumstances outweighed the evidence of a nonstatutory mitigating circumstance.

Sometime prior to his arrest on July 17, the police received a tip that Hansbrough had been involved in the instant homicide. After receiving that tip, a tactical intelligence unit started watching Hansbrough, and two members of that unit gave the arresting officer information about Hansbrough after he had been stopped for the traffic infractions. After being arrested for driving with a license suspended for driving under the influence, Hansbrough gave the police permission to take his shoes and the names of people he had been with on the day of the murder; he was then released on his own recognizance. The police had the shoes tested for blood and, after further investigation, arrested Hansbrough for murder. Hansbrough refused to give a statement until he talked with his girlfriend, but, after speaking with her, made an oral incriminating statement.

At trial Hansbrough moved to suppress his statement and the evidence against him, claiming that they had been procured subsequent to an illegal arrest; that the police had made his girlfriend their tool and that, therefore, his statement had been coerced; and that he had, in fact, exercised his right to remain silent. The trial court conducted a suppression hearing and ruled against Hansbrough. On appeal Hansbrough argues that the court erred. We disagree.

"A lawful investigatory stop for a traffic violation is not invalidated by the fact that an officer would not have stopped a defendant but for the suspicion that the defendant was involved in criminal activity." State v. Ogburn, 483 So.2d 500, 501 (Fla. 3d DCA 1986). Moreover, stopping a person suspected of further criminal activity for a minor traffic infraction for which any citizen could be stopped is not an unlawful pretext stop. Bascoy v. State, 424 So.2d 80 (Fla. 3d DCA 1982). The officer who arrested Hansbrough saw him make an illegal turn and observed that his car had a broken windshield. These are infractions for which any citizen could have been stopped notwithstanding the officer's knowledge that Hansbrough was a possible suspect in a crime. Likewise, after finding that the driver's license had been suspended for a second violation, the officer could have arrested any citizen for driving with such a suspended license. We therefore find the initial stop and arrest to have been valid. Because the stop and initial arrest were valid, we hold that the trial court did not err in failing to suppress the evidence flowing from that stop and arrest. We find no merit to Hansbrough's arguments that his statement had been coerced and that he had exercised his right to remain silent. Rather, the record demonstrates that Hansbrough talked to the police freely and voluntarily.

Hansbrough also argues that the trial court erred in not allowing him to demonstrate a state witness' motive, bias, or interest in testifying at this trial and in denying his motion to compel disclosure of promises and immunity given to this witness. The witness, Shadrick Martin, testified that, while in jail, Hansbrough told him that he had not lost consciousness during this murder and that he had lied when he said he could not remember stabbing the victim. At the time of Hansbrough's trial Martin was awaiting sentencing on a felony burglary plea. Additionally, he had previously been acquitted of an unrelated murder charge which had been prosecuted by the same state attorney trying the state's case against Hansbrough. Martin testified that the state had made no deals with him, and the state attorney advised defense counsel that Martin had not been given immunity. The trial court refused to allow defense counsel to question Martin about possible promises made him by the state, but ruled that counsel could review the transcript of Martin's plea to the burglary charge and could interview the state's attorney handling that case to determine if any promises had been made to Martin in return for his testimony against Hansbrough.

We agree with the trial court's resolution of this issue. While the state cannot withhold material evidence favorable to an accused, it is not the state's duty to actively assist the defense in investigating the case. State v. Coney, 294 So.2d 82 (Fla.1973). The defense has the initial burden of trying to discover impeachment evidence, and the state is not required to prepare the defense's case. Medina v. State, 466 So.2d 1046 (Fla.1985). This is especially true when the evidence is as accessible to the defense as to the state. See James v. State, 453 So.2d 786 (Fla.), cert. denied, 469 U.S. 1098, 105 S.Ct. 608, 83 L.Ed.2d 717 (1984). The prosecutor in the instant case was not the same one that prosecuted Martin on the felony burglary charge, and the court's allowing the defense to review the plea transcript and interview Martin's prosecutor was reasonable. Any error in the court's ruling, if indeed there be any, is harmless beyond a reasonable doubt.

Hansbrough also claims that the trial court erred in refusing to let a defense witness, another cellmate, testify as to Martin's fear of the state attorney prosecuting Hansbrough. According to Hansbrough, this precluded his impeachment of Martin's credibility. In reality, however, several of Hansbrough's witnesses testified that Martin had a reputation of not telling the truth and that he feared being sentenced as an habitual offender, among other things. Therefore, we cannot see how disallowing the complained-about testimony prejudiced Hansbrough, and we find no merit to this point.

During the state's rebuttal on Hansbrough's sanity, a state witness mentioned that he had reviewed the results of a polygraph examination conducted on Hansbrough. Defense counsel moved for a mistrial, which the trial court denied. Although polygraph evidence is inadmissible, Delap v. State, 440 So.2d 1242 (Fla.1983), cert. denied, 467 U.S. 1264, 104 S.Ct. 3559, 82 L.Ed.2d 860 (1984), the mere mention of a polygraph examination is not necessarily reversible error. Davis v. State, 461 So.2d 67 (Fla.1984), cert. denied, 473 U.S. 913, 105 S.Ct. 3540, 87 L.Ed.2d 663 (1985); Sullivan v. State, 303 So.2d 632 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976). After reviewing this record, we do not find that this witness' mention of a polygraph examination unduly prejudiced Hansbrough.

As a theory of defense, Hansbrough claimed that he suffered a "psychotic break" while committing these crimes. According to this theory, he was sane when he robbed the victim but insane when he stabbed her. Hansbrough requested four special jury instructions on sanity. The court refused the requested instructions and, instead, gave the standard jury instructions on felony murder and insanity. Hansbrough now claims that the trial court committed reversible error by not giving the requested instructions.

The defense is entitled to jury instructions on rules of law applicable to a theory of defense if evidence has been introduced to support those instructions. Smith v. State, 424 So.2d 726 (Fla.1982), cert. denied, 462 U.S. 1145, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983). Nine psychiatrists and psychologists, called by both sides, testified at this trial. Some testified that Hansbrough had suffered a psychotic break or an episode of temporary insanity; others stated that he remained criminally responsible throughout the robbery and murder. After reading this record and comparing the requested instructions with those actually given, we agree with the state that the standard instructions adequately apprised the jury as to the law and the evidence and that the requested instructions would only have engendered confusion.

At trial Hansbrough tried to introduce testimony through the medical examiner, a deputy sheriff, and her parents and husband that the homicide victim had been raped seven years prior to her death. According to Hansbrough, a prior violent act committed on the victim was relevant to her grabbing Hansbrough's hair when he took the money bag from her, thereby triggering his temporary insanity. The trial court found this testimony not relevant and refused to allow it into evidence. The admission of evidence is within the trial court's discretion. Medina. Other witnesses testified about the hair-pulling incident and its possible effect on...