Hooper v. State

• Court: Florida Supreme Court
• Writing for the Court: ALDERMAN; McDONALD; OVERTON, J., dissents with an opinion, in which BOYD, C.J., and McDONALD; McDONALD; OVERTON; BOYD, C.J., and McDONALD
• Citation: Hooper v. State, 476 So.2d 1253, 10 Fla. L. Weekly 393 (Fla. 1985)
• Decision Date: 15 August 1985
• Docket Number: No. 64299,64299
• Parties: 10 Fla. L. Weekly 393 Harold W. HOOPER, Appellant, v. STATE of Florida, Appellee.

Page 1253

476 So.2d 1253

10 Fla. L. Weekly 393

Harold W. HOOPER, Appellant, v. STATE of Florida, Appellee.

No. 64299.

Supreme Court of Florida.

Aug. 15, 1985.

Rehearing Denied Nov. 13, 1985.

Michael E. Allen, Public Defender, and David A. Davis, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Thomas H. Bateman, III, Asst. Atty. Gen., Tallahassee, for appellee.

ALDERMAN, Judge.

Harold Hooper appeals his convictions for first-degree murder and for attempted second-degree murder and his death sentences. Finding no reversible error, we affirm the convictions and sentences.

Defendant had been living with his brother, James Hooper, and his family for several months. On the morning of August 20, 1982, James returned to his apartment where he found the mutilated body of his wife, Kathaleen Hooper, whose throat had been slashed twice, severing her jugular veins and whose arms and hands were cut with what appeared to be defensive wounds. Her fingers on one hand were almost severed from attempting to grab the knife with which she was being stabbed. Her body was found near the front door of the apartment. The body of his nine-year-old daughter, Rhonda Hooper, was found in the master bedroom between the bed and the dresser. She had been strangled with a garrote made out of a white dish towel, and her neck had been slashed. His twelve-year-old son, James Scott Hooper, was alive but had been beaten severely on his head by a hard object, causing his skull to be crushed in several areas. James Scott testified that he was awakened on the night of August 19, 1982, and realized that his uncle, Harold Hooper, was severely beating him on the head with a hard object held in a pillow case, causing him to sustain a fractured skull. Testimony revealed that a slight deviation from the location of the blows to his head could have been fatal. When his father returned home the next morning, James Scott, in response to his father's inquiries, told him that defendant had done all this. James Scott testified that he did not smell any alcohol on the person attacking him. He also told the rescue unit that Harold had hit him. The rescue squad stated that James Scott was coherent and oriented.

Immediately following these murders, defendant left the state. A week later, he was arrested in Ohio, at which time he attempted to commit suicide by slashing his wrists because, he stated, he did not want to go back to jail. His defense at trial was explicit and detailed. He testified that on August 19, 1982, after having some drinks during the afternoon and evening hours, he drove around the city. He, however, did not testify that he was intoxicated. That night, he returned to his brother's apartment. He had no key to the apartment and, finding the door to the apartment locked and being unable to arouse James Scott by throwing pebbles at his window, he gained entry through an unlocked, sliding glass door after climbing up onto the sun porch. He testified that he encountered a 5-foot 10-inch, 190-pound, male stranger in the apartment who struck him in the head and knocked him down. Defendant at that time weighed 325 pounds and is 6 feet 8 inches tall. He gave a detailed description of this alleged assailant to the police. He said that he then found the victims and checked their pulses and that he left, intending to go to the convenience store several blocks away to get help. He left the city without reporting the murders, asserting that he suffered a black out and loss of memory after striking a tree as he left the apartment complex. He stated that he drove to Cincinatti, Ohio, and stayed at the Salvation Army. His entire defense rested on his claim that someone else had committed these murders.

Blood consistent with defendant's blood type, which was of a type distinctive from the victims or his brother, was found on the bed clothing near the murdered child, on her night shirt, and on the ligature around her neck. His distinctive blood type was also found on the tee shirt worn by James Scott, as well as several other places in the apartment. Defendant was convicted for first-degree murder of his sister-in-law, Kathaleen Hooper, first-degree murder of his nine-year-old niece, Rhonda Hooper, and attempted second-degree murder of his twelve-year-old nephew, James Scott Hooper. The jury recommended sentences of death for the murder of Kathaleen and for the murder of Rhonda. The trial court imposed two death sentences to run consecutively and imposed a fifteen-year sentence for the attempted second-degree murder of James Scott.

Defendant challenges his convictions on several grounds. He argues that the trial court reversibly erred in denying his request not to be present during the individual voir dire of prospective jurors in the trial court's chambers. He asserted at trial that due to his large size, the jurors may be intimidated in their responses to questions during voir dire. He contends that although he has the constitutional right to be present, this right is waivable.

The record reflects, and the trial court noted, that the defendant sat immediately to the court's right, that defendant's two trial counsel sat to his immediate right between him and the prospective juror, that the prospective juror sat at the end of the table, and that there were two bailiffs present in the chambers to provide adequate and sufficient protection to any person in there. The trial court denied defendant's request to absent himself because it determined that in weighing the interests of the defendant, his right to be there to observe the prospective jurors outweighed any intimidation a juror may have felt, if any. The trial court determined that if there was any merit to defendant's motion, it was outweighed by defendant's need to be present.

In Francis v. State, 413 So.2d 1175 (Fla.1982), we reversed defendant's conviction because the court had proceeded with the jury selection process in his absence and because, in the particular factual context of the record, we could not say that the error was harmless. Because he had not voluntarily absented himself from the courtroom, we found it unnecessary to decide whether a defendant may waive his right to be present in a capital case. We emphasized the importance of voir dire and stated:

The exercise of peremptory challenges has been held to be essential to the fairness of a trial by jury and has been described as one of the most important rights secured to a defendant. Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894); Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892). It is an arbitrary and capricious right which must be exercised freely to accomplish its purpose. It permits rejection for real or imagined partiality and is often exercised on the basis of sudden impressions and unaccountable prejudices based only on the bare looks and gestures of another or upon a juror's habits and associations. It is sometimes exercised on grounds normally thought irrelevant to legal proceedings or official action, such as the race, religion, nationality, occupation or affiliations of people summoned for jury duty. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). In the present case, we are unable to assess the extent of prejudice, if any, Francis sustained by not being present to consult with his counsel during the time his peremptory challenges were exercised. Accordingly, we conclude that his involuntary absence without waiver by consent or subsequent ratification was reversible error and that Francis is entitled to a new trial.

413 So.2d at 1178-79.

The trial court in the present case, in an effort to protect Hooper's constitutional right to be present at the stages of his trial where fundamental fairness may be thwarted by his absence, denied his request to waive his presence. This request was not denied on the basis that Hooper might not have the right to waive his presence, but rather on the basis of the trial court's weighing the ultimate importance to defendant of his need to be present against his asserted ground for waiver of possible intimidation of prospective jurors. The trial court did not reversibly err in denying defendant's motion to waive his presence. In light of our holding, we need not address the issue of whether a defendant may waive his right to be present at any critical stage of a capital trial.

Relative to the jury selection process, defendant also argues that a particular venireman should have been excluded for cause because he said that he would recommend death if Hooper was found guilty. Reading the entire voir dire of this venireman, we find defendant's claim unsupported by the record. The trial court properly refused to excuse this venireman for cause. Moreover, we find no merit to defendant's contention that the trial court erred in denying his request for additional peremptory challenges. Florida Rule of Criminal Procedure 3.350 provides in pertinent part:

(e) If an indictment or information contains two or more counts or if two or more indictments or informations are consolidated for trial, the defendant shall be allowed the number of peremptory challenges which would be permissible in a single case, but in the interest of justice the judge may use his judicial discretion in extenuating circumstances to grant additional challenges to the accumulate maximum based on the number of charges or cases included when it appears that there is a possibility that the State or the defendant may be prejudiced. The State and the defendant shall be allowed an equal number of challenges.

The trial court allowed thirty peremptory challenges. The trial court has the discretion to grant or deny additional peremptories. Parker v. State, 456 So.2d 436 (Fla.1984). Defendant has not demonstrated any abuse of the court's discretion.

Furthermore, we find no error in the court's excusal for...