Hill v. State

• Decision Date: 14 September 1989
• Docket Number: No. 70444,70444
• Citation: 549 So.2d 179,14 Fla. L. Weekly 446
• Parties: 14 Fla. L. Weekly 446 George Alexander HILL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 179

549 So.2d 179

14 Fla. L. Weekly 446

George Alexander HILL, Appellant, v. STATE of Florida, Appellee.

No. 70444.

Supreme Court of Florida.

Sept. 14, 1989.

James Marion Moorman, Public Defender, and Steven L. Bolotin, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Hill appeals his conviction for first-degree murder and his sentence imposing the death penalty. We have jurisdiction under article V, section 3(b)(1) of the Florida Constitution. We affirm the conviction but reverse and remand for resentencing.

The victim's body was discovered shortly after noon on 19 November 1985 by her husband in the temporary employment office operated by the couple. She was lying on her back with her clothes, including undergarments, removed or pulled down, suggesting a sexual crime. She had been brutally beaten, stomped, choked, and strangled. The medical examiner testified that she had been struck with great force with a coffee urn, breaking her cheekbone; that she had been stabbed with a broken broom handle, breaking ribs and puncturing her chest; that the broken handle of a hand mirror had been forced down her throat; that the handle of the broom had been pressed with great force across her throat; that she had been alive when these injuries were inflicted; and that she died of suffocation. Blood splatters on the lower wall indicated many of the blows were delivered after the victim was prone. Her billfold was missing. The physical evidence against appellant included finger and palm prints on the coffee urn, broom handle, and pocket mirror used in the attack. Shoe prints found in the gore, on the face of the victim, and on the hand mirror were similar to those of shoes hidden by appellant and discovered by the police. Clothes fibers and pubic and head hairs removed from the body were similar to standards taken from appellant. A coworker of appellant, who had been with him the morning of the murder at the employment office, testified that appellant stated he would rape and beat the victim if he had the chance. Appellant also gave a statement to the police admitting he attacked the victim. At trial, appellant testified he struck and threw the victim to the floor, after she attacked him, but denied killing her or leaving her in the condition she was in when the body was discovered. The jury recommended, and the trial judge imposed, the death penalty.

Appellant raises seven issues, three of which concern the guilt phase and which we address first. He argues that the trial judge erred in not conducting a Faretta ¹ inquiry prior to trial when appellant requested a new attorney based on his belief that the public defender's office was too busy to handle his defense. A Faretta inquiry is appropriate when a defendant invokes the right to act as counsel. It was not appropriate here where appellant asked for new counsel based on his belief that his assigned counsel was too busy.

Appellant next argues that the court erred in not admitting the testimony of a coworker (A) that a second coworker (B) told him (A) that a third coworker (C) admitted committing the murder. Neither B nor C was available to testify. Under the Florida Evidence Code, the statements of B and C are inadmissible hearsay except as provided by statute. §§ 90.801-90.802, Fla. Stat. (1985). Moreover, because the testimony of A is hearsay within hearsay in that it combines the hearsay statements of both B and C, it is inadmissible unless the hearsay statements of both B and C conform "with an exception to the hearsay rule as provided in s. 90.803 or s. 90.804." § 90.805, Fla. Stat. (1985). The statement of C would be admissible as an exception to the hearsay rule under section 90.804(2)(c), Florida Statutes (1985), because it tends to expose declarant C to criminal liability and exculpate the defendant provided: (1) declarant B was available to testify as a witness or B's hearsay statement to A itself qualified as a statutory exception to the hearsay rule; and (2) corroborating circumstances showed the trustworthiness of the statement. The proffered testimony of A fails on all counts. First, B was not available to testify. Second, B's hearsay statement of what C told him was not a statement against B's interests and was not otherwise an exception to the hearsay rule under either section 90.803 or 90.804. Third, the critical hearsay statement of C, while it is against his interest, is inadmissible regardless of whether offered by B or A because no corroborating circumstances show the trustworthiness of the statement. The trial court did not err in declining to admit the proffered hearsay within hearsay. As an alternative argument on the same point, appellant urges that by refusing the testimony the trial court deprived him of his due process right under the sixth and fourteenth amendments to the United States Constitution and article I, section 16 of the Florida Constitution to present witnesses in his behalf, contrary to Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). We disagree for several reasons.

The constitutional argument grounded on due process and Chambers was not presented to the trial court. Failure to present the ground below procedurally bars appellant from presenting the argument on appeal. Glendening v. State, 536 So.2d 212 (Fla.1988); Tillman v. State, 471 So.2d 32, 34 (Fla.1985); Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982). Second, there is no due process right to present uncorroborated and untrustworthy evidence to the trier of fact from witnesses who cannot be cross-examined because they have no knowledge of the substantive truth of their testimony. Chambers, on which appellant relies, bears no factual or constitutional similarity to the case at hand. In Chambers, Mississippi law prohibited the introduction of a hearsay statement against penal interest. Florida law does not. In Baker v. State, 336 So.2d 364 (Fla.1976), acknowledging and relying in part on Chambers, we held that hearsay declarations against penal interests were admissible. Baker was subsequently codified in the Florida Evidence Code adopted by chapter 76-237, Laws of Florida. See C. Ehrhardt, Florida Evidence § 804.4 (2d ed. 1984). Moreover, unlike here, the hearsay statements in Chambers "bore persuasive assurances of trustworthiness," 410 U.S. at 302, 93 S.Ct. at 1049, and all were corroborated by evidence from witnesses available to testify of their own knowledge. Here, the proffered testimony is hearsay within hearsay from a witness who did not himself hear the declaration against penal interest and, thus, had no knowledge of whether the declaration was actually made. We note, finally, that the exclusion of the hearsay in Chambers was coupled with the refusal of the state to permit meaningful cross-examination of the person who allegedly made the declarations against penal interests. There, unlike here, all potential witnesses were available for direct and cross-examination on the hearsay statements. We conclude that the hearsay within hearsay was not admissible under Florida law and its exclusion did not deny appellant a fair trial. Card v. State, 453 So.2d 17 (Fla.), cert. denied, 469 U.S. 989, 105 S.Ct. 396, 83 L.Ed.2d 330 (1984).

Appellant next argues that the trial court erred in permitting the jury to use a transcript of his inculpating statement to the police as an aid in understanding the taped statement played to the jury. Appellant does not challenge the accuracy of the transcript but urges that we overrule Golden v. State, 429 So.2d 45 (Fla. 1st DCA), review denied, 431 So.2d 988 (Fla.1983), on the ground that the tape itself was the best evidence. We see no error. The transcript was used as an aid to understanding. There is no suggestion that the transcript conflicted with or added information to the tape itself. The transcript was not carried into the jury room and there is no suggestion it became the focal point of inquiry. Finding no reversible error in the guilt phase, we affirm the conviction.

The trial judge found three aggravating circumstances in imposing the death penalty: section 921.141(5)(h), Florida Statutes (1985), the capital felony was especially heinous, atrocious, or cruel; section 921.141(5)(d), the capital felony was committed in the course of committing attempted sexual battery; and section 921.141(5)(f), the capital felony was committed for pecuniary gain. In mitigation, the trial court found that appellant had no significant criminal history.

Appellant does not challenge the first two aggravating circumstances. There was competent, substantial evidence showing that the murder was committed in the course of a sexual battery and that the murder was especially heinous, atrocious, or cruel. We approve these findings.

Appellant urges error, however, in the finding that the murder was committed for pecuniary gain. First, it is argued that the evidence does not show that appellant took the victim's billfold allegedly containing her money. Instead, appellant argues, he told another person of the attack immediately afterwards and asked that he check on the victim's condition. This person, appellant argues, might have taken the billfold and may even have committed the murder. We disagree. There was evidence that the victim carried her money in her billfold, carried her billfold in her purse, and that the billfold was missing when her body was discovered. Based on this evidence and appellant's conviction for the murder, the fact finder could reasonably infer that appellant also took the billfold and money. Second, appellant argues, even if it is conceded that he took the money, there is inadequate evidence to show that the murder was committed for pecuniary gain. Appellant urges instead that the murder was an unfortunate consequence of the attempted sexual battery and pecuniary gain was...