Jackson v. State

• Decision Date: 09 April 1992
• Docket Number: No. 75970,75970
• Citation: 599 So.2d 103
• Parties: 17 Fla. L. Weekly S237 Douglas Marshall JACKSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 103

599 So.2d 103

17 Fla. L. Weekly S237

Douglas Marshall JACKSON, Appellant, v. STATE of Florida, Appellee.

No. 75970.

Supreme Court of Florida.

April 9, 1992.

Rehearings Denied June 22, 1992.

Michael D. Gelety, Fort Lauderdale, for appellant.

Robert A. Butterworth, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Douglas Marshall Jackson, a prisoner under sentence of death, appeals his multiple convictions of first-degree murder and kidnapping and the appendant sentences. ¹ We affirm the convictions and the life sentences imposed in connection with three of the first-degree murder convictions. However, we vacate the death sentences and the sentences imposed in connection with the kidnapping convictions.

Jackson was arrested and charged, along with codefendant, Aubrey Livingston, with the kidnappings and first-degree murders of Larry Finney, Walter Washington, Edna Manuel Washington, and Edna's children, four-year-old Terrence Manuel, and fourteen-month-old Reginald Manuel. The two were also charged with the kidnapping of Jackson's ex-wife, Karen Jackson. Jackson was convicted and sentenced to death, but the initial convictions and sentences were reversed by this court in Jackson v. State, 464 So.2d 1181 (Fla.1985). A second trial ended in a mistrial. A third trial resulted in convictions on all counts except the count charging Jackson with kidnapping his wife. Jackson was sentenced to death for three of the murders. However, the convictions and sentences again were reversed on appeal. Jackson v. State, 545 So.2d 260 (Fla.1989).

The facts as revealed during the fourth trial are as follows. In January, 1981, Jackson and his wife, Karen separated due to domestic problems. Karen Jackson and the Jackson children went to live with Walter and Edna Washington. While at the Washington home, Karen became involved in an intimate relationship with Larry Finney.

During the early morning hours of March 1, 1981, the charred hulk of a car containing the bodies of Larry Finney, Walter and Edna Washington, and the two Manuel children was discovered by police. Autopsies revealed that Finney and the According to Karen Jackson's testimony at trial, Jackson and his codefendant, Aubrey Livingston, came to the Washington home on the evening of February 28, 1981. Jackson forced his way into the bedroom where his wife was hiding. Jackson ordered her to pack her belongings and to come with him. Karen Jackson and the Jackson children were put into the cab of Jackson's truck. Finney, the Washingtons, and Manuel children were put into the camper. Jackson told his wife that he was going to hold the others hostage. According to Karen Jackson, Livingston had a gun but Jackson did not. Jackson drove off, returning briefly to the Washington home to retrieve a jacket for one of the children. After driving around for some time, Jackson drove by an abandoned car several times, eventually stopping. Jackson and Livingston took the victims from the truck and placed them in the car. Karen Jackson then heard popping sounds. Livingston returned to the truck and yelled to Jackson to "hurry up." Karen Jackson then heard an explosion. When Jackson returned to the truck, his face had been burned. After dropping Livingston off at his house, Jackson and Karen returned to the appellant's residence.

Washingtons died of gunshot wounds, while the children died from smoke inhalation.

Aubrey Livingston also testified. Livingston previously had been convicted and sentenced to death. However, on appeal his convictions and sentences were reversed and the cause was remanded for a new trial. Livingston v. State, 458 So.2d 235 (Fla.1984). Prior to resentencing after retrial, Livingston agreed to testify against Jackson and was given a life sentence. Livingston's testimony at trial was basically consistent with that of Karen Jackson. However, Livingston claimed that Jackson rather than he had the gun and that he (Livingston) stayed in the truck while Jackson took the victims to the car.

Jackson testified in his own defense, denying any involvement in the murders. Jackson testified that at the time of the murders, he and his wife were having marital problems and that he was about to divorce her and seek custody of their children. According to Jackson, the marital problems arose due to the fact that Karen Jackson allegedly used drugs and had been unfaithful with a number of different men. He testified that on the evening of the murders, his wife brought the children to his house, left the children with him, and took his truck. The next morning, he found her sleeping on the couch. She looked tired and seemed dazed and depressed. He further testified that he received the burns observed at the time of his arrest while barbecuing.

Jackson's fourth trial resulted in five first-degree murder and five kidnapping convictions. The jury recommended life sentences for the five murder convictions. The trial court sentenced Jackson to consecutive life sentences for the murders of the adults, but sentenced him to death in connection with the children's murders. Jackson also was sentenced to consecutive life sentences in connection with the five kidnapping convictions.

Jackson raises the following seven claims in this appeal: 1) the trial judge erred by failing to recuse himself; 2) the trial court erred by admitting Livingston's prior consistent statement; 3) comments by the trial court prevented Jackson from receiving a fair trial; 4) the trial court erred by restricting the presentation of a defense; 5) the trial court erred in imposing the death sentence; 6) the trial court erred in imposing improper sentences on the noncapital felonies; 7) the cumulative effect of various trial court rulings requires a new trial be granted.

MOTION TO DISQUALIFY TRIAL JUDGE

Jackson's first claim involves the trial judge's refusal to recuse himself. Prior to his fourth trial, Jackson filed a motion for disqualification, alleging his belief that the trial judge was prejudiced due to the three previous trials over which he had presided. This motion was denied as legally insufficient.

A renewed motion for disqualification was filed. The second motion reiterated the defendant's belief that the judge was prejudiced due to the fact that he had heard the case no less than five times, including the two trials of Jackson's codefendant. The motion further alleged that the defendant's fear of prejudice was well founded in light of certain comments allegedly made by the trial judge which "seem to infer a predisposition by [the judge] as to the facts that are expected to be presented at his new trial." After a second hearing, the renewed motion also was found to be legally insufficient. In the order denying the second motion, the trial court specifically noted that no further motions to disqualify would be considered due to the ten-day provision in Florida Rule of Criminal Procedure 3.230(c).

After the second motion to disqualify was denied, Jackson sought a writ of prohibition in the Fourth District Court of Appeal. Although the petition was denied, review of that denial by this Court was never sought. Despite the trial court's ruling that no further motions for disqualification would be considered, a third motion was filed prior to sentencing. This motion, which basically reiterated the allegations contained in the first two motions, was denied without a hearing as legally insufficient and as untimely under Florida Rule of Criminal Procedure 3.230(c).

A motion to disqualify must be well-founded and contain facts germane to the judge's undue bias, prejudice, or sympathy. See Gilliam v. State, 582 So.2d 610, 611 (Fla.1991); Dragovich v. State, 492 So.2d 350, 352 (Fla.1986). The fact that a judge has previously made adverse rulings is not an adequate ground for recusal. Gilliam, 582 So.2d at 611; Suarez v. State, 95 Fla. 42, 115 So. 519 (1928). Nor is the mere fact that a judge has previously heard the evidence a legally sufficient basis for recusal. Dragovich, 492 So.2d at 352. Likewise, allegations that the trial judge had formed a fixed opinion of the defendant's guilt, even where it is alleged that the judge discussed his opinion with others, is generally legally insufficient to mandate disqualification. Id. at 352. The motions in this case were properly denied as legally insufficient. Accordingly, we find no error in connection with this claim.

GUILT PHASE

Jackson's next claim focuses on the admission of a prior taped statement by Aubrey Livingston that corroborated Livingston's trial testimony. This taped statement was introduced by the state to rebut the inference that Livingston had a motive to fabricate his story in light of his agreement to testify against Jackson. To the extent the taped statement was consistent with Livingston's trial testimony, it was properly admitted under section 90.801(2)(b), Florida Statutes (1989). ² Alvin v. State, 548 So.2d 1112, 1114 (Fla.1989); accord Stewart v. State, 558 So.2d 416, 419 (Fla.1990); Kelley v. State, 486 So.2d 578, 583 (Fla.), cert. denied, 479 U.S. 871, 107 S.Ct. 244, 93 L.Ed.2d 169 (1986); Dufour v. State, 495 So.2d 154, 160 (Fla.1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1332, 94 L.Ed.2d 183 (1987). Although it was error to admit those portions of the taped statement that contained information that was not elicited during the trial testimony, on this record, any error was harmless beyond a reasonable doubt. Alvin v. State, 548 So.2d at 1114.

Jackson's next claim deals with a number of comments by the trial court that Jackson contends deprived him of a fair trial. A similar claim was urged and rejected in Jackson's prior appeal to this Court. See 545 So.2d at 264. With the exception of an inadvertent reference to a charge of which Jackson previously had been acquitted, none of the allegedly improper comments were challenged at trial and therefore are not preserved for our...