Jackson v. State, 64973

• Citation: 498 So.2d 406,11 Fla. L. Weekly 589
• Decision Date: 13 November 1986
• Docket Number: No. 64973,64973
• Parties: 11 Fla. L. Weekly 589 Andrea Hicks JACKSON, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 406

498 So.2d 406

11 Fla. L. Weekly 589

Andrea Hicks JACKSON, Appellant, v. STATE of Florida, Appellee.

No. 64973.

Supreme Court of Florida.

Nov. 13, 1986.

Rehearing Denied Jan. 5, 1987.

Michael E. Allen, Public Defender, Second Judicial Circuit, and Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen. and Henri C. Cawthon, Asst. Atty. Gen., Tallahassee, for appellee.

BOYD, Justice.

Andrea Hicks Jackson appeals her conviction and death sentence for the first-degree murder of Jacksonville police officer Gary Bevel. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution, and we affirm the conviction and sentence.

Late in the evening of May 16, 1983, appellant vandalized her own automobile, breaking out the windows and removing the car's battery, spare tire and license plate. Police were notified by area residents who observed her actions. After officers Griffin and Bevel arrived separately appellant told them that someone had destroyed the windows of her car and, upon the officers' request, went to an apartment to obtain the car's bill of sale. At this point officer Griffin left Bevel to write a criminal mischief report and upon receiving appellant's permission Bevel had the car towed.

Bevel then spoke to witnesses who stated that appellant had in fact destroyed her own car. He arrested her, apparently for filing a false report. Appellant's response was to kick, scream and strike the officer as he restrained her and placed her in the back of his patrol car. Once in the back seat appellant said, "Wait a minute. You made me drop my damned keys." As officer Bevel stepped back and bent down, apparently looking for the keys, appellant shot him six times, four times in the head, once in the shoulder and once in the back. Bevel fell into her lap and she pushed him aside and ran from the area. Several hours later she was arrested while hiding on the steps outside her ex-husband's apartment. Inside the apartment police found the handgun used to kill Bevel hidden in a clothes basket.

A jury found appellant guilty of first-degree murder and recommended the death penalty. The trial judge imposed the death sentence, finding three aggravating factors: that the murder was committed for the purpose of avoiding a lawful arrest, section 921.141(5)(e), Florida Statutes (1983); that the murder was committed to hinder law enforcement, section 921.141(5)(g); and that the murder was cold, calculated and premeditated, section 921.141(5)(i). Although both statutory and nonstatutory mitigating factors were presented to the jury and considered by the court, none were found to be applicable.

Appellant asserts twelve errors in seeking reversal of her conviction and sentence. First she argues that the trial judge erred in not dismissing the indictment against her on the grounds that discrimination against blacks and women in the selection of grand jury foremen empaneled in Duval County violated her fifth, sixth and fourteenth amendment rights under the United States Constitution. As appellant concedes in her brief, this issue has been decided against her on testimony quite similar to what was presented in this case. Andrews v. State, 443 So.2d 78 (Fla.1983). See also Hobby v. United States, 468 U.S. 339, 104 S.Ct. 3093, 82 L.Ed.2d 260 (1984).

Prior to trial, appellant filed a motion in limine to preclude group questioning of prospective jurors concerning their attitudes toward capital punishment and a motion for individual and sequestered voir dire. Appellant argues that the trial court's denial of both motions violated her right to be tried by an impartial jury. However, "[t]he granting of individual and sequestered voir dire is within the trial court's discretion." Davis v. State, 461 So.2d 67, 69, (Fla.1984), cert. denied, 473 U.S. 913, 105 S.Ct. 3540, 87 L.Ed.2d 663 (1985). Appellant has failed to demonstrate any abuse of discretion.

Appellant's next claim is somewhat more complex. Following the shooting she went to Shirley Ann Freeman's home and washed her clothes. She told Ms. Freeman that she had shot a cop because she "wasn't going back to jail" and she didn't like men touching her. While at Freeman's house, appellant had in her possession a .22 calibre handgun and when she left she took the gun with her.

After listening to appellant's story Ms. Freeman called a cab and gave appellant money for the cab fare. Taxicab driver Carl Lee, Jr., picked her up from the Freeman home and during the ensuing ride Mr. Lee discovered the gun on appellant, struggled with her and threw the gun from the car. It was also alleged that appellant exited the cab, retrieved the gun and shot at the back window of the cab. Appellant was later charged with the attempted first-degree murder of Mr. Lee. In a separate trial held before the trial of the present case she was acquitted of that charge. However, during appellant's trial for Gary Bevel's murder the trial court allowed Lee's testimony that he picked up appellant at Ms. Freeman's house, that they struggled over the gun and that he threw the gun from the cab. No testimony was allowed concerning the alleged shooting or concerning the facts of the alleged crime of which appellant was acquitted.

Appellant asserts that Mr. Lee's testimony was inadmissible as evidence of a collateral crime of which she had been acquitted, and that admission of this testimony violated the fifth and fourteenth amendments to the United States Constitution. See State v. Perkins, 349 So.2d 161 (Fla.1977). However, appellant misapprehends the nature of Mr. Lee's testimony. The testimony was admitted for the purposes of showing consciousness of guilt concerning Bevel's murder, flight, and possession of the murder weapon. It was not admitted to expose a collateral crime and was in fact not evidence of a collateral crime at all. Although this testimony had been introduced at appellant's trial for attempted first-degree murder, it had not been introduced to establish any element of the crime charged. The trial judge here was careful to limit the scope of Lee's testimony to those facts not contested in the original trial, facts that merely placed appellant in Lee's cab, with a handgun, possibly in the process of flight from Bevel's murder.

Appellant also claims prejudicial error in allowing Ms. Freeman to testify concerning appellant's statement that "she wasn't going back to jail." Appellant cites Jackson v. State, 451 So.2d 458 (Fla.1984), to support her position that Ms. Freeman's testimony was inadmissible as a comment implying past criminal conduct. Reliance on Jackson is misplaced. In that case testimony was admitted that the defendant had boasted of being a "thoroughbred killer" from Detroit. The statement had no relevance except as to the character and propensity of the defendant to commit the murder charged. In this case, Ms. Freeman's testimony was relevant to prove appellant's motive for killing Gary Bevel and therefore its admission was proper.

Appellant also challenges the sufficiency of the evidence to support a conviction for first-degree murder. This argument has no merit. After reviewing the record we conclude that the evidence was sufficient to prove premeditation. Sireci v. State, 399 So.2d 964, 967 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982). Moreover, even without the evidence of premeditation, the jury could have found felony murder based on the commission of the crime of escape. See State v. Ramsey, 475 So.2d 671 (Fla.1985) (attempting to flee following arrest is escape).

During the conviction phase of the trial, over defense objection, the jury was instructed on self defense and justifiable use of deadly force. Appellant asserts that because self defense was not raised as an affirmative defense, giving the instruction led the jury to believe that she had failed to prove the defense, depriving her of the presumption of innocence guaranteed under the fourteenth amendment. However, as noted by the trial judge, there was evidence before the jury from which they could have inferred the excuse of self defense: the disparity in size between appellant and Bevel, comments during the struggle to the effect that Bevel might be hurting appellant, and scratches and welts on appellant's back noticed by Shirley Freeman following the shooting. From our review of the record the state was entitled to the instruction; in any event appellant has demonstrated no prejudice.

Appellant also takes issue with comments made by the prosecutor in both the conviction and guilt phases of the trial. Appellant argues that the egregious prosecutorial misconduct so infected the proceedings as to deny her due process of law and to deprive her of the constitutional rights to a fair trial and to an impartial jury.

On several occasions this Court has admonished attorneys concerning the propriety of arguments in capital cases. See, e.g., Bertolotti v. State, 476 So.2d 130, 133-34 (Fla.1985); Jennings v. State, 453 So.2d 1109 (Fla.1984), vacated on other grounds, 470 U.S. 1002, 105 S.Ct. 1351, 84 L.Ed.2d 374 (1985); Teffeteller v. State, 439 So.2d 840 (Fla.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 754 (1984). We have gone so far as to warn counsel that such misconduct may form the basis for disciplinary proceedings by The Florida Bar. Bertolotti. We note that the state attorney who prosecuted this case is a man of extensive experience who should be sensitive to the ethical restrictions governing the conduct of state prosecutors. The kind of argument complained of here is not such as this Court can approve. The comments shown in the record are not an appropriate model for young lawyers. However, after a complete review of the record we cannot say that the comments are so offensive as to warrant a new trial. As we stated in Davis v. State, 461 So.2d 67, 70 (Fla.1984), "[t]he control of comments in...