James v. State

• Decision Date: 24 May 1984
• Docket Number: No. 62557,62557
• Citation: 453 So.2d 786
• Parties: Davidson Joel JAMES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 786

453 So.2d 786

Davidson Joel JAMES, Appellant, v. STATE of Florida, Appellee.

No. 62557.

Supreme Court of Florida.

May 24, 1984.

Rehearing Denied Aug. 30, 1984.

Judge C. Luckey, Jr., Public Defender, and Brian Donerly, Asst. Public Defender, Thirteenth Judicial Circuit, Tampa, and Jerry Hill, Public Defender, and Robert F. Moeller, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.

Jim Smith, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Davidson James appeals his conviction of first-degree murder and sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution, and affirm both the conviction and sentence.

A grand jury indicted James for the first-degree premeditated murder of Dorothy Satey, the attempted first-degree murder of her husband, Felix Satey, and the armed robbery of Mr. Satey. At trial the jury convicted James of all counts as charged and recommended the death penalty. The court sentenced James to death for the murder and to consecutive life sentences for the other crimes.

The crimes occurred on October 30, 1981 when Larry Clark and James entered a sign shop owned and operated by the Sateys. After Clark shot Satey twice and robbed him, he and James entered the office/residential portion of the premises. Satey pleaded with them not to harm his wife who was incapacitated due to a physical disability, but then heard a gunshot followed by his wife's moaning. She died from a single gunshot wound to the head. (In a separate trial Clark received the death penalty for her murder. Clark v. State, 443 So.2d 973 (Fla.1984)).

The night of the murder a detective awakened Satey, who had undergone surgery and who had been sedated, in his hospital room and asked him to look at photographs of five individuals. Satey, who did not have his eyeglasses at the time, tentatively identified the photographs of Larry Clark and of another person as being the men who shot and robbed him and his wife. Later, while wearing his glasses, Satey identified Clark from another photopack and identified James from a third group of pictures. The other person tentatively chosen from the first photopack turned out to be an unidentified juvenile ¹ whose picture happened to be on file with the police. ² The police apparently did not try to find and question the juvenile, and James now claims that withholding detailed information about him violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Brady provides that

suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment irrespective of the good faith or bad faith of the prosecution.

Id. at 87, 83 S.Ct. at 1196. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), however, qualifies Brady's broad holding somewhat:

[T]o reiterate a critical point, the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant's right to a fair trial.

Id. at 108, 96 S.Ct. at 2400. Moreover, "[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish 'materiality' in the constitutional sense." Id. at 109-10, 96 S.Ct. at 2400-01.

Florida Rule of Criminal Procedure 3.220(a)(2) provides that the state shall disclose "any material information within the State's possession or control which tends to negate the guilt of the accused as to the offense charged." The purpose of the rules of procedure was to avoid obtaining convictions by suppressing evidence favorable to a defendant. Cooper v. State, 336 So.2d 1133 (Fla.1976), cert denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977). In the absence of actual suppression of evidence favorable to an accused, however, the state does not violate due process in denying discovery. Antone v. State, 410 So.2d 157 (Fla.1982). This is especially true where a defendant and the state have the same access to the sought-after information. See State v. Counce, 392 So.2d 1029 (Fla. 4th DCA 1981).

In the instant case the unidentified photograph belonged to a juvenile with sealed records, which might have contained the information James requested. Because of the confidentiality of those records, they could be disclosed by the state or examined by James only on a court order. § 39.12, Fla.Stat. (1981). James concedes that he was aware of the possible existence of the photograph. Further, he raises only the "mere possibility" that the information might be "material" and, apparently, did not seek a court order pursuant to section 39.12. We see no Brady violation here. The photograph was equally accessible to the defense and the prosecution. Indeed, the defense was in a stronger position than the prosecution to argue that the confidential juvenile records should be opened to discovery. We find that the trial court did not err in denying the motion for sanctions for failure to provide discovery.

James also sought sanctions for the state's failure to produce a tape recording of Satey's call to the police reporting the shootings and robbery. The state did not concede that such a tape actually ever existed, but, not being able to find the tape, theorized that due to the passage of time any such tape would have been routinely erased prior to James' request for its production. James has not shown that what Satey said when calling the police would have been material. Moreover, there is no lack of due process if the requested material would not have been beneficial. State v. Sobel, 363 So.2d 324 (Fla.1978). In summary, there was no showing that the tape recording existed, was suppressed, was material, or was exculpatory. The nonproduction of the tape did not prejudice James, ³ and the trial court did not err in refusing to grant sanctions. Sobel; Weise v. State, 357 So.2d 755 (Fla. 4th DCA 1978).

As his second point on appeal James claims that the trial court erred in allowing an expert to use parole reports written by James as known examples of his handwriting. The state did not publish these reports to the jury and did not disclose the nature of the writings. The trial court did not err in allowing the expert to use the reports in his trial testimony.

As his last challenge to the conviction phase of his trial, James charges that the court improperly instructed the jury regarding felony murder. James claims that the state failed to establish "the essential element of nonconsent to entry" and that, therefore, no evidence supported the burglary felony-murder instruction. We recently held that consent is an affirmative defense to, rather than nonconsent an element of, burglary. State v. Hicks, 421 So.2d 510 (Fla.1982). The critical element in a charge of burglary "is that a defendant enter or remain in the premises 'with the intent to commit an offense therein.' " Id. at 512. The state's evidence met this test, and we find no error in the felony-murder instruction given here.

James makes several attacks on the instructions given during the penalty proceedings. The trial court, however, gave the standard instructions, and we find no error in his denying the instructions James requested. Moreover, we find no error in the "majority" language used in the verdict form because the trial court orally instructed the jury that life imprisonment would be the appropriate recommendation on a vote of six or more jurors. See Hitchcock v. State, 432 So.2d 42 (Fla.1983).

One instruction, however, requires discussion. In Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), the United States Supreme Court reversed our affirmance of Enmund's conviction and sentence of death for first-degree murder ⁴ because Enmund himself did not kill, attempt to kill, or intend that a killing take place or that lethal force be employed. James, the accomplice in the instant robbery/killing, asked the trial court to give a penalty proceeding instruction based on Enmund because he, like Enmund, did not commit the actual murder.

The trial court rejected part of James' proposed instruction, but, based on Enmund, instructed the jury as follows:

In addition to your deliberations on the penalty which you will recommend to me, there is one other task which you must perform. You need to find whether Davidson Joel James killed Dorothy Satey or attempted to kill Dorothy Satey or intended that a killing take place, or intended that a lethal force would be employed.

In determining this, you will rely on the same evidence that you heard in the first phase of this trial. You will use the same rules for deliberations that you were given in the first instructions, and weigh the evidence in the same manner.

Again, the burden of proof is on the State. The State must prove beyond and to the exclusion of every reasonable doubt that Davidson Joel James caused or intended to cause the death of Dorothy Satey, or intended to kill her, or intended that lethal force would be employed.

A reasonable doubt is defined as it was in the first phase, and may arise from the evidence, a conflict in the evidence or the lack of evidence.

Your verdict finding that Davidson Joel James did or did not kill Dorothy Satey, did or did not intend her death, or did or did not intend that lethal force would be employed, must be by a majority of the jury.

You will be given two verdict forms which I will now read to you:

"We, the jury, by a majority of ____, find that Davidson Joel James killed Dorothy Satey, or attempted to kill her, or intended that a killing take place or intended that lethal force would be employed;" or

"We, the jury, by a majority of ____, find that Davidson Joel James did not kill Dorothy Satey, nor attempt to kill her, nor did he intend a...