Herman v. State
| Citation | 396 So.2d 222 |
| Decision Date | 25 March 1981 |
| Docket Number | No. 78-1104,78-1104 |
| Parties | Mark HERMAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
The defendant, Mark Herman, was convicted of the first degree murder of Richard George Kreusler, and sentenced to life imprisonment. On appeal, he raises ten separate points. We affirm for the reasons hereinafter set forth, and for that reason the cross-appeal by the state is moot.
The trial evidence revealed that Kreusler was fatally injured by two or three shotgun blasts as he answered his doorbell on the evening of January 16, 1976, in Palm Beach County, Florida. There were no witnesses to the crime. Several neighbors testified to seeing a small yellow or orange car with a black top in the area near the time of the shooting. The police recovered two discharged 12-gauge "double aught" shotgun shell casings outside the Kreusler home, and three shotgun shell wads. No other physical evidence was found at the scene of the crime. Ballistic tests and other evidence 1 indicated these shell casings had been fired by a pump-style shotgun.
The defendant, who was not then a suspect, was questioned in May, 1976, about the Kreusler homicide and told officers that a shotgun he had received and subsequently returned to a third party was a 20-gauge double-barrelled shotgun. Subsequently, in August, the police came into possession of a sworn statement from one Ronald Gates, a fugitive facing state robbery charges and federal extortion charges. As a result of that statement, Herman became a suspect in the Kreusler homicide. Based on information in the statement, the police ascertained that a shipment of the defendant's goods were in a warehouse in Tempe, Arizona. A search warrant was obtained and a 12-gauge pump shotgun was seized, together with various shotgun shell casings, none of which was "double aught." Subsequent ballistic tests in regard to this weapon were "inconclusive."
In November, 1976, Herman was convicted of unrelated crimes in state criminal court. He was incarcerated in the Palm Beach County Jail between then and the following January, awaiting sentencing. In December, one Dexter Drake Coffin, III, a twice-convicted felon, produced a confession to the Kreusler homicide, allegedly authored by the defendant. Coffin and Herman had been incarcerated together in the same jail, but in separate cells. Coffin, a "jailhouse lawyer," purportedly was advising Herman on the procedures of an insanity defense to preclude the imminent sentencing. The note explained the Kreusler homicide as a case of mistaken identity, the We consider appellant's ten points on appeal seriatim :
idea being to shoot a neighbor of Kreusler's, Billy Glocker, who had cheated Herman in a drug deal. Herman, intoxicated by the effects of morphine and delaudid, mistakenly went to the wrong house, according to the note. A fingerprint analysis of the note confirmed the prints of Coffin and an alleged jail intermediary, Kane, on the document, but none from the defendant. Coffin used his delivery of the confession to the state attorney as a basis for a motion to mitigate the sentence he was serving. Testimony was adduced at trial from two other inmates concerning inculpatory verbal statements made by the defendant in the jail.
POINT I
Appellant moved for a new trial below on the ground that the state, in violation of the Brady rule, 2 failed to disclose promises made to a state witness, Gerard DeNono. The record reveals this point to be frivolous. No deal was made with DeNono by the state that required disclosure. The fact that DeNono was hoping for leniency as a result of his testimony was not a deal requiring disclosure. DeNono's counsel had been advised by the assistant state attorney in regard to the law of Florida concerning the doctrine of use immunity i. e., that DeNono's testimony in the Herman trial could not be used against DeNono in his forthcoming first degree murder trial and the prosecutor had stated that, if subpoenaed to testify at DeNono's sentencing procedure, he would tell the sentencing judge of the fact that DeNono had cooperated in the Herman case.
An explanation of a point of law to defense counsel and a representation to tell the truth in response to a subpoena are not "promises" to a witness by a state that compel disclosure. Cf. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).
POINT II
The appellant contends that the indictment against him was fatally tainted by the participation of a grand juror, Teresita Herron, who was married to Major Robert G. Herron, head of the detective bureau within the Palm Beach County Sheriff's Office, which investigated the Kreusler homicide. The question appellant seeks to raise is whether or not section 905.04(1)(b), Florida Statutes (1977), disqualified 3 Mrs. Herron from grand jury duty because of her interest in the subject matter: the homicide her husband had investigated.
In support of this argument, the appellant relies on Cawthon v. State, 115 Fla. 801, 156 So. 129 (1934). In that case, the Florida Supreme Court held that a statute providing that neither a sheriff nor deputy sheriff could be qualified as jurors applied to a commissioned deputy sheriff of Santa Rosa County who had accepted his commission, but had not given bond nor exercised the duties of a deputy sheriff at the time he served as a grand juror. That case is clearly distinguishable from the instant situation.
The state argues that the challenge to Mrs. Herron as a grand juror came too late, because it was after the jury was impanelled. See section 905.05, Florida Statutes (1977). The state maintains that the appellant presented no proof to the trial court that he came within the statutory exception regarding persons ignorant of the prospective grand jury investigation and, therefore, the motions challenging Mrs. Herron were untimely and properly denied. Seay v The state further argues that the hearing evidence did not meet the burden of proving that Mrs. Herron had a state of mind which would have prevented her from acting impartially and without prejudice to Herman's substantial rights. At the hearing on appellant's motion to disqualify Mrs. Herron, both she and Major Herron testified. He stated that he never discussed his work with his wife, and that he himself did not have any part in the investigation of the Kreusler case; Mrs. Herron disavowed any communication with her husband in regard to the case, and swore that she was impartial and unprejudiced. No evidence to the contrary was adduced, and the trial court denied the challenge.
State, 286 So.2d 532 (Fla.1974), cert. denied, Seay v. Florida, 419 U.S. 847, 95 S.Ct. 84, 42 L.Ed.2d 77 (1974); Whitney v. State, 132 So.2d 599 (Fla.1961).
We believe the record reveals that the appellant raised the challenge to Mrs. Herron in timely fashion, and that the trial court considered the motion on the merits, rather than dismissing it as untimely. Moreover, the state's objection to the timeliness of the challenge was not made to the trial court, which entertained and decided the motion on its merits. The state cannot raise timeliness for the first time on appeal. See State v. Giardino, 363 So.2d 201 (Fla. 3d DCA 1978).
On the merits, however, we find no evidentiary basis, other than the inferences available from the fact of the marital relationship itself, to support a finding that Mrs. Herron had a state of mind which prevented her from acting impartially. No specific statutory basis existed to disqualify her. The burden to show the basis for discharge at the hearing was on the movant. See State v. Demetree, 213 So.2d 709 (Fla.1968). The presumption is that a grand juror is qualified and exercises sound judgment. Clemmons v. State, 141 So.2d 749 (Fla. 1st DCA 1962), modified, 150 So.2d 231 (Fla.1963). There is not a sufficient basis before this court to overturn the trial court's denial of the challenge to Mrs. Herron.
POINT III
The appellant asserts he was prejudiced in trial preparation by the denial of his motion for a continuance. The motion was made on the day trial was set to commence (it had been scheduled for six months), and following more than six months of discovery. The trial court systematically determined that the defendant would have the opportunity to at least depose each state witness prior to his or her testimony. Open file discovery had been afforded the defendant. Under these circumstances, we cannot find that the trial court violated its broad discretion in matters of requested continuances. See Mobley v. State, 327 So.2d 900 (Fla. 3d DCA 1976), cert. denied, 341 So.2d 292 (Fla.1976).
POINT IV
The appellant urges that the trial court erroneously denied his motion to suppress the shotgun seized in the warehouse in Tempe, Arizona, because of the insufficiency of the affidavit upon which the search warrant issued.
The state responds, inter alia, that the defendant lacked standing to raise this issue because he did not have a legitimate expectation of privacy in the invaded place. United States v. Salvucci, --- U.S. ----, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rawlings v. Kentucky, --- U.S. ----, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure. Rakas, 99 S.Ct. at 423-424, n.1. The defendant was placed on notice of this burden when the state raised the issue of standing before the trial court. The hearing evidence in the instant case shows that the affiant, Officer Harry Hawkins of the Phoenix Police Department, after receiving information...
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