Jennings v. State

• Decision Date: 27 August 1987
• Docket Number: No. 68835,68835
• Citation: 12 Fla. L. Weekly 434,512 So.2d 169
• Parties: 12 Fla. L. Weekly 434 Bryan F. JENNINGS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 169

512 So.2d 169

12 Fla. L. Weekly 434

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

No. 68835.

Supreme Court of Florida.

Aug. 27, 1987.

Rehearing Denied Oct. 22, 1987.

James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., and Kevin Kitpatrick Carson, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Bryan F. Jennings was convicted of first-degree murder, two counts of first-degree felony murder, kidnapping with intent to commit sexual battery, sexual battery, and burglary in connection with the 1979 abduction and death of six-year-old Rebecca Kunash. ¹ Following a penalty hearing, the jury recommended he be executed. The trial court imposed the death sentence. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the convictions and the sentence of death.

Appellant alleged sixteen errors in the guilt and penalty phases of the trial. Several merit discussion.

Guilt phase

Point I concerns whether application of the "fruit of the poisonous tree" doctrine, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), required the suppression of certain photographs taken as a result of an illegally obtained confession. Appellant confessed after his arrest, but that confession was suppressed by our ruling in Jennings v. State, 473 So.2d 204 (Fla.1985). Thereafter, the court denied appellant's motion to suppress photographs which showed two abrasions on appellant's penis. The relevancy of the photographs was that a pathologist had said that the person who raped the physically immature victim would have likely injured his penis. The trial judge permitted the introduction of the photographs on the premise that regardless of the confession, they would inevitably have been obtained in the course of the investigation.

Assuming without deciding ² that the poisonous tree doctrine applies to physical evidence obtained as a consequence of a voluntary confession elicited in violation of the prophylactic rules of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny, we agree that the photographing of appellant's genitalia would have been accomplished irrespective of his confession. See Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). Appellant became one of many suspects early in the investigation, due in part to his having been accused as a juvenile of burglary and in part because his physical description matched that of an unknown man who had been seen in the victim's neighborhood around the time of her abduction. Further investigation showed that appellant's shoes matched footprints found at the victim's house, his fingerprints were found at the house, and he had returned home on the night of the murder with his clothes and hair wet (the victim's body had been found in a canal). The police had probable cause to arrest the defendant without the confession, and the photographs would have been inevitably obtained.

Point II concerns the admissibility of a prior sworn statement of a state witness which was inconsistent with his trial testimony. Clarence Muszynski, a cellmate of appellant's, testified that appellant told him how he had broken into the sleeping victim's room, taken her outside and bashed her head on the pavement, driven her to a canal, raped her, and then held her underwater until she was drowned and where her body would be disposed of by "the sharks and the turtles and the fish and the animals of the sea...." Defense counsel sought to attack Muszynski's credibility by showing that he had alleged in his own sworn pretrial motions that he was insane. Muszynski acknowledged having made the motions and admitted to lying therein. As part of appellant's case, defense counsel sought to introduce the sworn motions into evidence. Appellant now argues that the court erred in sustaining the state's objection to the introduction of these motions.

The motions could not be introduced for purposes of impeachment because Muszynski admitted that he had made the prior inconsistent statements. § 90.614(2), Fla.Stat. (1985). The statements were not admissible as an exception to the hearsay rule for purposes of substantive evidence because they were not given "at a trial, hearing, or other proceeding or in a deposition." § 90.801(2)(a), Fla.Stat. (1985). In any event, appellant received whatever benefits the motions could give him because their contents were made clear to the jury and defense counsel read aloud the oath in its entirety.

Point III concerns statements made by the victim's father and her school principal that on the day she was killed the child was going to be narrator at her school play because she had learned to read faster than her classmates. Appellant argues these statements should not have been admitted because they had no relevance and served only to play upon the jurors' sympathies. To the contrary, the testimony was relevant in that it tended to show that the victim was looking forward to her role and thus would not have left home willingly. Moreover, on this record, testimony of this nature could not have affected the outcome of appellant's trial.

Point V deals with photographs of the victim. Appellant says these postmortem photos were so inflammatory their potential prejudice outweighed their slight probative value. We disagree. The photographs were not so shocking in nature as to defeat the value of their relevancy. Bush v. State, 461 So.2d 936, 939-940 (Fla.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1237, 89 L.Ed.2d 345 (1986); State v. Wright, 265 So.2d 361, 362 (Fla.1972).

Penalty phase

Point IX raises an issue that is, if not unique, at least unusual. After the jury had been sworn and some testimony given, a juror told the court she had not been completely candid about her feelings concerning the death penalty. She stated that while she still could render an impartial verdict in the guilt phase, she could not recommend a death sentence. When informed of the juror's comments, the state did not object to her sitting in the guilt phase but announced that it would request her removal if a penalty phase were necessary. Defense counsel did not object to her participation in the determination of guilt or innocence but declined to stipulate to her replacement for the penalty phase. Before the penalty phase, the trial court granted the state's motion to substitute that juror with an alternate. Appellant now argues that his right to a fair trial was abridged by interfering with the "magical" composition of the jury in the middle of the trial.

The trial judge has broad discretion in deciding whether a juror may sit. Calloway v. State, 189 So.2d 617 (Fla.1966). Aside from the fact that neither side requested it, we see no compelling reason why the judge should have excused the juror from the guilt phase. She said that despite her feelings about imposing the death penalty she would render a verdict as to guilt or innocence based solely on the law and the evidence. Therefore, section 913.13, Florida Statutes (1985), does not apply, as it disqualifies only those who cannot vote for guilt in a capital case.

In Tresvant v. State, 359 So.2d 524 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1375 (Fla.1979), the court approved the substitution of an alternate juror when it was learned midway through a criminal trial that one of the impaneled jurors had failed to disclose on voir dire a series of prior arrests. The court said:

Concealment by a juror on voir dire of information which may have been of materiality as to whether the juror would be excused on peremptory challenge or for cause, which having occurred is not revealed or discovered until after trial, can justify the granting of a new trial. Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379 (Fla. 2d DCA 1972). Therefore, when such occurs and is disclosed during a trial, a mistrial would be indicated unless, as in this instance, there is available an acceptable alternate juror to replace the offending juror when removed. United States v. Taylor, 554 F.2d 200 (5th Cir.1977). It follows that if there existed a legal need to excuse the juror in question, the procedure employed in this case did not constitute error in law; and if the situation did not legally require the removal of the juror for cause her removal with substitution of the alternate juror was not shown to have caused any prejudice and, if error, was harmless.

359 So.2d at 526.

Likewise, in the instant case we cannot see how the trial judge's solution to this unusual problem could have prejudiced the appellant. At the outset, we note that it may be to a defendant's advantage (though obviously it was not here) to have a juror who is apprehensive about the death penalty consider guilt or innocence. Moreover, this juror could not have had the same influence on the penalty phase as she would have had in the guilt phase. (Indeed the jury vote was eleven to one.) Finally, the fact that the alternate did not deliberate guilt with the other panel did not prevent that juror from reaching a sound decision as to the penalty. Florida Rule of Criminal Procedure 3.280 authorizes the court to substitute alternates for jurors who "become unable or disqualified to perform their duties." Had the subject juror originally stated during voir dire that she could not vote for death at the penalty phase, she would have been subject to removal for cause. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Hellman v. State, 492 So.2d 1368 (Fla. 4th DCA 1986).

We also note that under Florida's bifurcated system for capital cases a judge is given authority to change the jury panel under certain circumstances. "If, through impossibility or inability" the trial jury cannot reconvene for the penalty phase, the judge "may summon a special juror or jurors...." § 921.141(1), Fla.Stat. (1985)....