Herzog v. State, 61513

CourtUnited States State Supreme Court of Florida
Citation439 So.2d 1372
Docket NumberNo. 61513,61513
PartiesFredrick HERZOG, Appellant, v. STATE of Florida, Appellee.
Decision Date22 September 1983

Michael D. Gelety, Fort Lauderdale, for appellant.

Jim Smith, Atty. Gen., and Max Rudmann and Sharon Lee Stedman, Asst. Attys. Gen., West Palm Beach, for appellee.

ADKINS, Justice.

This is an appeal by Fredrick Herzog from his conviction of first-degree murder and from the trial judge's imposition of the death sentence after the jury had recommended life imprisonment. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the conviction, but direct that the death sentence be reduced to a sentence of life imprisonment in accordance with the jury's recommendation.

Although the testimony of two eyewitnesses is somewhat inconsistent, the facts are as follows:

The victim, Ginger Mackert, who was defendant's paramour, shared an apartment with defendant and his two male roommates, Alongi and Carrier. The victim had resided with the three for approximately two months, except for brief intervals when the victim would move out after arguments with the defendant.

On February 8, 1981, the defendant and victim hosted a small party to celebrate their recent engagement. Those attending the party consumed various quantities of alcohol, quaaludes, and marijuana. Later that evening, victim and defendant had an argument that resulted in the dispersal of the party. Those remaining at the apartment were the victim, defendant, Alongi, and Carrier.

The argument ceased when the victim retired to the bedroom and defendant fell asleep on the couch. The victim was apparently heavily intoxicated. Shortly thereafter Carrier and Alongi heard a banging noise, and, being concerned because of her intoxicated and despondent state, broke down the door to find the victim in the bathtub banging her head against the wall. They helped her out, and took her to her bedroom where she was placed in bed and fell asleep. During this whole time, defendant was asleep in the living room.

Sometime later, the victim got up and came out to where defendant was sleeping, and attempted to get a handgun from somewhere underneath him. It is unclear whether she actually acquired possession of the gun. Nevertheless, Carrier intervened and emptied the gun and hid it behind a refrigerator. The victim returned to the bedroom.

Later that evening, the defendant woke up; Carrier related the previous facts to the defendant who demanded the return of the gun; Carrier complied. Thereafter, the defendant went into the bedroom where the victim was, and they engaged in another argument. Carrier and Alongi left the apartment shortly after being told by the defendant to mind their own business. The argument had apparently subsided before their departure.

After one or two hours, Carrier and Alongi returned to the apartment. Although it was quiet at first, the defendant and victim began arguing again; this time they were in the kitchen. Carrier and Alongi, who were in their respective bedrooms, investigated and saw the victim consuming more quaaludes. Although the testimony on this point is inconsistent, the defendant was apparently inducing the victim to take the drugs.

The defendant and victim next apparently returned to the bedroom. A short while later, Carrier and Alongi joined the defendant in the bedroom. Carrier gagged the victim, and recommended that they take her to her brother's house. Carrier testified that the victim offered no resistance when gagged. After the gag was applied and while the victim was lying on the bed, the defendant and Alongi attempted to smother her with a pillow. Alongi testified that he helped the defendant because the defendant was armed with a gun; however, the evidence on this issue is tenuous. After the suffocation attempt failed, the apparently unconscious victim was dragged into the living room whereupon the defendant, assisted by Alongi, strangled her to death using a telephone cord.

The next morning Herzog, Alongi, and Carrier discussed disposing of the body and shortly thereafter Carrier left for work. Herzog and Alongi then wrapped victim in a garbage bag and placed her in the trunk of Herzog's car. The two men drove to Alligator Alley, drenched the corpse with gasoline, and set it afire. Victim was found smoldering February 10, 1981.

Herzog was arrested, indicted, and found guilty by a jury of first-degree murder. Co-defendant Paul Alongi entered a plea of guilty to the lesser included offense of manslaughter and was placed on five years' probation. Carrier was granted total immunity.

The defendant's first contention is that the trial court erred in conducting critical stages of the trial in his absence. The precise duration of defendant's absence is in dispute. However, the only reasonable inference to be drawn from the record is that the defendant was absent during a defense motion to suppress certain photographs from introduction as evidence for the state. The relevant portion of the transcript is as follows:

Mr. Blackman: If I may, your Honor, I forgot one other thing, and I would like to mention it right now.

The Court: Do you waive the presence of your client? He's gone.

Mr. Blackman: Yes, sir, I waive the presence of my client for this particular motion.

The state has shown me a number of pictures, a load of pictures, some of which may be relevant, but others which I think might be inflammatory.

After the trial court noted the defendant's absence, trial counsel waived defendant's presence and proceeded with the motion. The trial court elected not to rule on the admissibility of the photos at that time, but rather, to rule on the photos individually before they were introduced. Immediately thereafter, the court recessed for the day. There is no indication, nor is it asserted, that the defendant's absence was not voluntary.

In asserting this argument, the defendant places heavy emphasis on our recent decision in Francis v. State, 413 So.2d 1175 (Fla.1982). In Francis, also a murder case, trial counsel waived the defendant's presence for a portion of the jury selection and told the defendant that he could not go into the jury room where peremptory challenges were being exercised. Id. at 1178. We reversed, holding that the involuntary absence of the defendant, during a crucial stage of a trial for a capital offense, is error notwithstanding the waiver by trial counsel. Id. at 1178-79. We relied on Florida Rule of Criminal Procedure 3.180(a)(4) which recognizes the challenging of jurors as a crucial stage in the trial, thus the defendant's presence is necessary. We also emphasized that the arbitrary nature of peremptory challenges requires the defendant's presence to consult with counsel during the time of exercise. Id. at 1179.

Defendant's reliance on Francis is misplaced. First, Francis involved the involuntary absence of the defendant as contrasted with the voluntary absence in the instant case. Id. at 1178. Secondly, and more importantly, the absence in the case sub judice was not during a crucial stage of the trial as defined by Rule 3.180 or constitutional principles ("where fundamental fairness might be thwarted by his absence"). Francis, 413 So.2d at 1177 (citing Snyder v Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934)).

Hence, the absence of the defendant during the motion was not error irrespective of the waiver by defense counsel.

We are not called upon to, and do not, answer the question of whether a defendant's involuntary absence, during a noncrucial stage of a trial for a capital offense, would be error. Nor is it necessary that we answer the hypothetical question left open in Francis; whether the defendant's voluntary absence, during a crucial stage of a trial for a capital offense, constitutes error. Francis, 413 So.2d at 1178. We continue to note, however, Lowman v. State, 80 Fla. 18, 85 So. 166 (1920).

As his second point of error the defendant contends that certain comments made by the court below, as well as interruptions in cross-examination constitute reversible error. Defendant concedes the lack of contemporaneous objection by him below; however, he urges that such an objection would have proved futile and does not preclude appellate review. Defendant urges that our decision in Thomas v. State, 419 So.2d 634 (Fla.1982) is controlling. Thomas, however, is inapposite. In that case defense counsel stated his desire to make a motion in response to a statement by the prosecutor. However, the trial court, anticipating what the motion was, overruled it and denied counsel's request to further argue the issue. We held that counsel's compliance with the court directive did not constitute waiver and counsel is not required to "pursue a completely useless course when the judge has announced in advance that it will be fruitless." Id. at 635. (Citing Brown v. State, 206 So.2d 377, 384 (Fla.1968) (emphasis supplied)). The record in the instant case reveals nothing that should have dissuaded counsel from making a contemporaneous objection.

In the alternative, defendant argues that the comments made by the trial court are of such a nature as to constitute fundamental error and are, hence, reviewable irrespective of the lack of contemporaneous objection.

Our review of the record fails to disclose any remarks that could be deemed "so prejudicial to the rights of an accused that neither rebuke nor retraction could eradicate its evil influence." Grant v. State, 194 So.2d 612, 613 n. 1 (Fla.1967). Hence, the failure of the defendant to object to the alleged prejudicial comments is fatal and subsequent review by this Court cannot be had. See Maggard v. State, 399 So.2d 973, 976 (Fla.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981); Ray v. State, 403 So.2d 956, 960 (Fla.1981); Castor v. State, 365 So.2d 701, 703 (Fla.1978); Clark v. State, 363 So.2d 331, 333-34 (Fla.1978).

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