Holsworth v. State

• Decision Date: 18 February 1988
• Docket Number: No. 67973,67973
• Citation: 522 So.2d 348,13 Fla. L. Weekly 138
• Parties: 13 Fla. L. Weekly 138 Eric Brian HOLSWORTH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 348

522 So.2d 348

13 Fla. L. Weekly 138

Eric Brian HOLSWORTH, Appellant, v. STATE of Florida, Appellee.

No. 67973.

Supreme Court of Florida.

Feb. 18, 1988.

Rehearing Denied April 18, 1988.

H. Dohn Williams, Jr., Sp. Public Defender of H. Dohn Williams, Jr., P.A., Fort Lauderdale, for appellant.

Robert A. Butterworth, Atty. Gen., and Noel A. Pelella and Penny H. Brill, Asst. Attys. Gen., West Palm Beach, for appellee.

BARKETT, Justice.

Eric Brian Holsworth appeals his conviction of first-degree murder and sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm as to guilt but reduce his sentence to life in accordance with the jury's recommendation.

On June 9, 1984, Alice Dzikowski and her mother Gloria Salerno were attacked in their mobile home. Alice was on the couch in the living room when Gloria went to bed in a back bedroom. Shortly after midnight, Gloria was awakened by her daughter's screams from the living room. When she ran to her daughter's aid, Mrs. Salerno was grabbed from behind by appellant, who placed his hand over her mouth, brandished a knife, and said, "I'll get you bitch--I'll get you mama." Mrs. Salerno struggled, breaking the knife with her hand. Appellant grabbed another knife from the kitchen and continued to slash at Mrs. Salerno. After wounding her, appellant ran away from the trailer. Gloria Salerno received stab wounds to her arms, hands, lung, chest, and face as well as a severed tendon in her thumb. Alice Dzikowski received multiple stab wounds, including a five-inch wound to the heart that killed her. Appellant was arrested several months later in California during a routine traffic stop and returned to Florida for trial.

At trial, Mrs. Salerno positively identified appellant as the assailant. Penny Lindsey, who lived nearby, testified that she saw appellant covered in blood near her trailer approximately one hour after the murder. Further testimony at the trial revealed that appellant had quit his job the day after the murder and left town, saying that he was "going up north," that he was "in trouble" and had done "a stupid thing." Fingerprints identified as appellant's were found on a back bedroom window at the victims' trailer, the apparent point of entry and exit, and on one of the two knives used in the attack. Finding appellant guilty of attempted first-degree murder, armed burglary, and first-degree murder, the jury recommended life imprisonment on the murder charge. Overriding the jury's recommendation, the trial court sentenced appellant to death.

Appellant challenges his conviction on six grounds. First, appellant argues that the trial court erred in denying his motion for change of venue. The motion was prompted by a newspaper article which appeared in the Miami Herald, containing appellant's picture and reporting his confession, including parts of it that were suppressed. One of the prospective jurors was seen reading the newspaper (not the article) prior to jury selection. To further support his argument, appellant notes that an associate publisher of the Miami Herald subsequently was seated on the jury. Appellant contends that under these facts, automatic reversal is required under Oliver v. State, 250 So.2d 888 (Fla.1971). We disagree and take this opportunity to clarify Oliver. ¹

Generally, the test to determine whether a change of venue is required is

"whether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely on the evidence presented in the courtroom."

McCaskill v. State, 344 So.2d 1276, 1278 (Fla.1977) (quoting Kelley v. State, 212 So.2d 27, 28 (Fla. 2d DCA 1968)). In order to meet this test, the defendant must establish that the general atmosphere of the community was deeply hostile to him, which can be demonstrated either by inflammatory publicity or great difficulty in selecting a jury. Copeland v. State, 457 So.2d 1012, 1017 (Fla.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2051, 85 L.Ed.2d 324 (1985). Given this general rule, appellant contends that a special rule relating to confessions was established in Oliver, to wit, that the requisite showing of hostility must be presumed whenever "a 'confession' is featured in news media coverage of a prosecution" and that "the voir dire process cannot cure the effect of a 'confession' which has been given news media coverage." 250 So.2d at 890.

In Oliver, the sole daily newspaper in the area published a transcript of Oliver's confession in which he implicated himself and others, expressly stated that he had a motive for the crime, and gave a description of it. Moreover, Oliver dealt with a crime by a black man against a white woman during a period of racial unrest. On those facts, this Court found error without proof that members of the jury had seen the confession or been prejudiced by it.

This Court's holding in Oliver, however, has long since been "restricted and refined." See Straight v. State, 397 So.2d 903, 906 (Fla.), cert. denied, 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 418 (1981); Hoy v. State, 353 So.2d 826, 830-31 (Fla.1977), cert. denied, 439 U.S. 920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978). In Hoy, this Court declined to apply Oliver, noting that a retraction of the confession had also been published, the area in question was not dependent on a sole daily newspaper, and there was no evidence that any of the jurors read the article in question. In Straight, we again rejected the argument that the rule in Oliver required a change of venue solely because of publicity surrounding a confession. We noted that

the case received considerable media attention and ... knowledge of the murder was widespread. Four-fifths of the prospective jurors, and eight of the twelve jurors who served on the jury, had some prior knowledge of the case. The crucial consideration, however, is not knowledge, but whether such knowledge rendered the jurors prejudiced.

397 So.2d at 905-06 (emphasis added). Despite the widespread publicity in that case, we held that Oliver did not require reversal because

[t]he trial judge here presided over a long and painstaking voir dire procedure. The record shows that prospective jurors exhibiting even a hint of prejudice were excused. The court granted the appellant extra peremptory challenges and defense counsel did not use them all.

Straight, 397 So.2d at 906.

Thus, our cases since Oliver implicitly have held that publicity about a confession, standing alone, is not per se grounds for the granting of a change of venue. Although publicity about a confession may be inflammatory, the defendant still must demonstrate that the publicity was prejudicial either by evidence that the particular jury was affected or by evidence that the "general state of mind of the inhabitants of the community was so infected" that a fair trial could not be obtained. The critical factor where there is pretrial publicity of any kind is "the extent of the prejudice or lack of impartiality among potential jurors that may accompany the knowledge of the incident." Provenzano v. State, 497 So.2d 1177, 1182 (Fla.1986), cert. denied, 481 U.S. 1024, 107 S.Ct. 1912, 95 L.Ed.2d 518 (1987).

Turning to the facts of this case, we note initially that the trial court's ruling on a motion for change of venue will be upheld absent a manifest abuse of discretion. Davis v. State, 461 So.2d 67 (Fla.1984); Johnson v. State, 351 So.2d 10 (Fla.1977).

The record shows that the trial court denied the motion for change of venue because the jury selection process had not yet begun and there was no evidence that any of the potential jurors had even read the article in question. The only basis for defendant's motion was the presence of the newspaper in the jury assembly room, that is, the room occupied by the entire jury pool for the Broward County courts. In ruling on the motion, the trial court stated that any potential juror exposed to the Miami Herald article or any other press coverage of the case would be excused for cause. In fact, two prospective jurors who had been exposed to press coverage of the case were so excused.

As to appellant's arguments concerning the juror who was an associate editor of the Miami Herald, we fail to see a connection between this juror and the motion for change of venue since the motion was denied prior to seating her. Appellant could have exercised a peremptory challenge to excuse her but chose not to do so. Appellant cannot now complain in light of his acquiescence in her selection. Moreover, we cannot agree with appellant that because this juror was an associate editor of the Miami Herald, we must presume that she read the article concerning appellant's trial. This contention is factually refuted by this juror's unequivocal statements on voir dire that she avoided reading newspapers during the venire process and did not know or read anything about the case. We note, too, that the members of the jury, who at defense counsel's request were questioned a number of times throughout the trial about their exposure to media coverage of the case, repeatedly responded that they had not read or heard anything about it outside the courtroom.

Appellant has shown no evidence that even one of the jurors sitting on the case was exposed to any press coverage pertaining to the defendant nor any evidence of difficulty in selecting an impartial jury. In sum, the record fails to support any claim of prejudice. We find no abuse of discretion.

Appellant next argues that the trial court erred in refusing to allow the testimony of defense expert Dr. Antonio Varsida during the guilt phase of the trial on the issue of the affirmative defense of voluntary intoxication. Dr. Varsida would have testified that appellant's ingestion of alcohol and PCP on the night of the crime impaired...