Jennings v. State, s. 75689

• Decision Date: 13 June 1991
• Docket Number: 74926,Nos. 75689,s. 75689
• Citation: 583 So.2d 316
• Parties: Bryan Fredrick JENNINGS, Appellant, v. STATE of Florida, Appellee. Bryan Fredrick JENNINGS, Petitioner, v. Richard DUGGER, Respondent. 583 So.2d 316, 16 Fla. L. Week. S452
• Court: Florida Supreme Court

Page 316

583 So.2d 316

Bryan Fredrick JENNINGS, Appellant, v. STATE of Florida, Appellee.

Bryan Fredrick JENNINGS, Petitioner, v. Richard DUGGER, Respondent.

Nos. 75689, 74926.

583 So.2d 316, 16 Fla. L. Week. S452

Supreme Court of Florida.

June 13, 1991.

Rehearing Denied Aug. 20, 1991.

Larry Helm Spalding, Capital Collateral Representative, Martin J. McClain, Chief Asst. CCR, and Jerome H. Nickerson and Bret R. Strand, Asst. Capital Collateral Representatives, Office of the Capital Collateral Representative, Tallahassee, for appellant/petitioner.

Robert A. Butterworth, Atty. Gen., and Barbara C. Davis and Kellie A. Nielan, Asst. Attys. Gen., Daytona Beach, for appellee/respondent.

PER CURIAM.

Bryan Fredrick Jennings appeals to this Court from the trial court's denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Jennings additionally petitions this Court for habeas corpus relief. Because the death penalty was imposed in this case, we have jurisdiction under article V, sections 3(b)(1), (9), of the Florida Constitution.

The facts of Jennings' murder of six-year-old Rebecca Kunash were summarized by the trial judge in his original sentencing order and quoted by this Court in a prior opinion in this case:

"In the early morning hours of May 11, 1979, Rebecca Kunash was asleep in her bed. A nightlight had been left on in her room and her parents were asleep in another part of the house. The Defendant went to her window and saw Rebecca asleep. He forcibly removed the screen, opened the window, and climbed into her bedroom. He put his hand over her mouth, took her to his car and proceeded to an area near the Girard Street Canal on Merritt Island. He raped Rebecca, severely bruising and lacerating her vaginal area, using such force that he bruised his penis. In the course of events, he lifted Rebecca by her legs, brought her back over his head, and swung her like a sledge hammer onto the ground fracturing her skull and causing extensive damage to her brain. While she was still alive, Defendant took her into the canal and held her head under the water until she drowned. At the time of her death, Rebecca Kunash was six (6) years of age."

Jennings v. State, 512 So.2d 169, 175-176 (Fla.1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1061, 98 L.Ed.2d 1023 (1988). After two initial trials and convictions, ¹ Jennings was again tried and convicted of first-degree murder, kidnapping, sexual battery, aggravated battery, and burglary, all in connection with Rebecca's death. ² This Court affirmed those convictions and the death sentence in Jennings, 512 So.2d 169.

First, we consider Jennings' appeal from the trial court's denial of his rule 3.850 motion. Jennings' first claim in this appeal is that the state withheld material, exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Jennings claims that the state withheld a taped interview with Judy Slocum, who had driven Jennings home to change his clothes on the night of the murder. In the interview, Slocum stated that Jennings was "very much loaded" when she drove him home. Jennings argues that Slocum's testimony would have been material to both the guilt and penalty phases of the trial.

In rejecting this claim, the trial court stated:

In this claim defendant contends and the State concedes that the State violated the discovery rules by failing to disclose and produce the taped statement of Judy Slocum. Trial defense counsel now avers that had he known of the contents of the tape he would have used Slocum both in the guilt phase to bolster his defense of intoxication and during the penalty phase to add to his proof of the defendant's intoxication as a mitigating factor. Although this contention is not unexpected at this juncture of these proceedings, it is, nevertheless, belied by the record.

First, without doubt, the defendant had knowledge not only of Slocum's name but also the subject matter of her knowledge about the case. Not only was Jennings aware of her participation in the evening's events, defense was aware of the statement of Russell Schneider that Judy Slocum drove Bryan to his mother's house at about 11:30-12:00 p.m. to change his pants because his zipper was broken and that Jennings had been drinking large amounts of beer. Defense was also aware of the statement of Charles Clawson that Jennings had a girl drive him over to his mother's house about 10:00-11:00 p.m. because he felt he was unable to drive. Is it surprising, then, that Slocum's statement indicates that she drove Jennings home to change his pants because his zipper was broken and that he appeared "much loaded"? The Slocum statement merely confirmed the Schneider and Clawson statements.

All three statements, however, seem less significant than another statement known to the defense. Floyd Canada stated that he was with Jennings up to a few minutes before the murder occurred. He stated that he observed Jennings and a couple of other guys share four or five pitchers of beer at the Barleycorn and that Jennings was pretty loaded by around two o'clock. He then went with Jennings to the Booby Trap where they continued to drink until around 4:30 a.m. Jennings passed out in Canada's car on the way back to the Barleycorn. When they reached the Barleycorn, Jennings had trouble getting out of Canada's car and then staggered towards his own car. If defense counsel were truly interested in an intoxication defense, how could he ignore the Canada testimony and yet claim prejudice because he was not given the Slocum statement? The fact is that intoxication was never intended to be a part of Jennings' defense strategy. Defense counsel stated on more than one occasion, "The issue in this case is identity."

Defense requested and received a charge on intoxication not because it put on a case for intoxication, but because of the almost incidental testimony of Mrs. Danna, Jennings' mother, during the state's case. She testified that during the early morning hours of the day of the murder, she was awakened by Mrs. Music who told her that Jennings had come home drunk, almost knocked a picture off the wall, and went out again in search of cigarettes. This was the defense's total intoxication defense.

Mrs. Music, who observed the "drunk" Jennings and reported it to her sister, was not called. Neither Canada (nor his deposition if he were unavailable) nor Schneider were offered for this defense. Donna Clement, who heard her aunt, Catherine Music, talking to Jennings at about 6:00 a.m. and asking him if he were drunk, was not called. Charles Clawson, who was with Jennings until 2:30 a.m. at the Barleycorn and was aware that Jennings asked Slocum to drive him home because he felt he was unable to drive, was not called. It is inconceivable that had the state disclosed Slocum's statement, which merely confirms that which the record reflects she would have said, the theory of the defense would have changed.

(Footnotes omitted.) We agree with the trial court's analysis of the effect the tape would have had on the trial. The trial court properly rejected this claim because there was not a reasonable probability that the tape would have caused a different outcome at the trial. See Duest v. Dugger, 555 So.2d 849 (Fla.1990).

We do find merit in Jennings' next claim that he is entitled to certain portions of the state's files as public records under chapter 119, Florida Statutes (1989). In State v. Kokal, 562 So.2d 324, 327 (Fla.1990), we held that

that portion of the state attorney's files which fall within the provisions of the Public Records Act are not exempt from disclosure because Kokal's conviction and sentence have become final. Thus, the state attorney should have provided Kokal with these records upon his request. If he had a doubt as to whether he was required to disclose a particular document, he should have furnished it in camera to the trial judge for a determination. Of course, the state attorney was not required to disclose his current file relating to the motion for postconviction relief because there is ongoing litigation with respect to those documents.

Therefore, in accordance with Provenzano v. Dugger, 561 So.2d 541 (Fla.1990), the two-year time limitation of rule 3.850 shall be extended for sixty days from the date of the disclosure solely for the purpose of providing Jennings with the time to file any new Brady claims that may arise from the disclosure of the files.

Jennings' next claim is that he received ineffective assistance of counsel during the guilt phase of his trial. He claims that his defense counsel failed to contact two witnesses who could have testified to his extreme intoxication. The trial court rejected this claim as follows:

Contrary to trial counsel's belated contention, the record reflects that the defense elected a strategy to obtain a not guilty verdict based on lack of identity. Since intoxication would not have been a defense to felony murder based on the underlying felony of sexual battery (an offense for which Jennings was also convicted), this appears to have been sound strategy. Having failed in his "lack of identity" defense, Jennings is now asking this court for relief not requested from the jury.

It cannot be said that the defense strategy to seek acquittal on the basis of insufficient identity rather than raise the defense of intoxication was negligence as a matter of law. After all, the most damning evidence, Jennings' confession, had been suppressed and the trial was being conducted over three hundred miles and seven years from the murder. On the other hand, the strongest evidence of intoxication, even if a viable defense, would have to be weighed against the mental alertness and physical dexterity evident in the planning and execution of this murder. It cannot be said that defense counsel failed to present an "intelligent and knowledgeable defense."

And the record refutes...