Johnston v. State

Decision Date13 November 1986
Docket NumberNo. 65525,65525
Citation11 Fla. L. Weekly 585,497 So.2d 863
Parties11 Fla. L. Weekly 585 David Eugene JOHNSTON, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Ronald R. Findell, Orlando, for appellant.

Jim Smith, Atty. Gen. and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for appellee.

ADKINS, Justice.

David Eugene Johnston appeals his conviction for first-degree murder and sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the conviction and death sentence.

At approximately 3:30 a.m. on November 5, 1983, David Eugene Johnston called the Orlando Police Department, identified himself as Martin White, and told the police "somebody killed my grandma" at 406 E. Ridgewood Avenue. Upon their arrival, the officers found the dead body of 84-year-old Mary Hammond. The victim's body revealed numerous stab wounds as well as evidence of manual strangulation. The police arrested Johnston after noticing that his clothes were blood-stained, his face was scratched and his conversations with the various officers at the scene of the crime revealed several discrepancies as to his account of the evening's events.

The record reveals that prior to the murder Johnston had been working at a demolition site near the victim's home and had had contact with the victim during that time. In fact, Johnston was seen washing dishes in the victim's apartment five nights before the murder.

Johnston was seen earlier on the evening of the murder without any scratches on his face and the clothing he was wearing tested positive for blood. In addition, the watch that Johnston was seen wearing as late as 1:45 a.m. on the morning of the murder was found covered with blood on the bathroom countertop in the victim's home. Further, a butterfly pendant that Johnston was seen wearing as late as 2:00 a.m. that morning was found entangled in the victim's hair. The record also reveals that a reddish-brown stained butcher-type knife was found between the mattress and the boxspring of the victim's bed, a footprint matching Johnston's shoe was found outside the kitchen window of the victim's house, and that silver tableware, flatware, a silver candlestick, a wine bottle and a brass teapot belonging to the victim were found in a pillowcase located in the front-end loader parked at the demolition site.

Appellant now alleges that twenty-two errors occurred below. As in Medina v. State, 466 So.2d 1046, 1048 n. 2 (Fla.1985), we summarily reject many of the issues raised by appellant that we have rejected in the past and similarly do not warrant reversal in this instance. Thus, we conclude that the trial court did not err in denying the following motions: to preclude challenge for cause of the potential jurors; to vacate the death penalty because the aggravating and mitigating circumstances enumerated in section 921.141, Florida Statutes (1983), are impermissibly vague and overbroad; to allow individual voir dire and sequestration of the jurors during voir dire; to strike death as a possible penalty and dismiss the indictment because it failed to allege applicable aggravating circumstances; and to prohibit the state from questioning any prospective jurors as to their attitudes towards capital punishment prior to a conviction. Further, based on Medina and the record in this case, we find that the following issues are without merit and do not warrant discussion: whether a defendant is entitled to a statement of aggravating circumstances; whether the shackling of defendant resulted in prejudice; and whether the trial court erred in refusing to instruct the jury on circumstantial evidence.

Other issues which the record clearly reveals do not entitle Johnston to relief are the following: whether the trial court erred in denying appellant's motion to voir dire individual grand jurors, Porter v. State, 400 So.2d 5 (Fla.1981); whether the trial court erred in denying the defendant's motion to dismiss the indictment as vague, O'Callaghan v. State, 429 So.2d 691 (Fla.1983); whether the trial court erred in denying the defendant's motion for judgment of acquittal; whether the trial court erred in admitting a photograph of the victim into evidence, Foster v. State, 369 So.2d 928 (Fla.), cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 (1979); whether the trial court erred in refusing to instruct the jury on aggravated battery, battery and assault, Martin v. State, 342 So.2d 501 (Fla.1977); and whether comments made by the prosecutor during the sentencing phase of the trial were improper. Bertolotti v. State, 476 So.2d 130 (Fla.1985).

In an argument that warrants little discussion, we note that appellant's contention that the trial court erred in denying his motion for notification of convening the grand jury is moot because counsel for appellant appeared before the grand jury when the state presented its case against Johnston.

Appellant contends that the trial court erred in denying his motion to enforce section 914.04, Florida Statutes (1983), and his motion in limine requesting the court to prohibit the state from introducing into evidence the statement of the defendant discussing two letters. We disagree. On December 19, 1983, appellant requested to speak to Investigator Mundy, at which time he confided that he had received a letter from someone named "Sissy" who confessed to the murder. Appellant explained that he gave a copy of the letter to his attorney. Appellant also told his girlfriend that he received a different letter from someone confessing to the murder.

The office of the state attorney issued subpoenas duces tecum to both of the appellant's attorneys, seeking any written statement which purported to be a confession to the killing of the victim by any person other than appellant. Appellant filed a motion to quash the subpoenas which, after a hearing, was denied. Both attorneys then responded to the subpoenas and turned the two letters over to the prosecutor. In a later statement to Investigator Mundy, appellant revealed that he had written both letters. The letters and appellant's statement regarding the letters were subsequently introduced at trial.

Section 914.04 provides that neither testimony given pursuant to a subpoena nor evidence procured through a subpoena duces tecum shall be received against the person compelled to give the testimony or produce the evidence. We find that no considerations of immunity came into play in this instance because the letters were produced by appellant's attorney and received at trial against the defendant. Further, no considerations of immunity come into play since it was appellant who intiated the conversation; the state did not compel his testimony.

Appellant seeks to circumvent the above-mentioned deficiencies in his argument by asserting that since the letters were sent by him to his attorneys for their own personal viewing, the documents then became subject to the attorney-client privilege. Proceeding on this premise, appellant claims that the issuance of a subpoena duces tecum was equivalent to an issuance to him personally, and thus, once he was compelled, through his attorneys, to produce the letters, section 914.04 was activated and the immunity thus created required the trial court to grant his motions.

Section 90.502, Florida Statutes (1983), recognizes the attorney-client privilege. Subsection (2) provides that a client may refuse to disclose confidential communications between the client and his attorney. The privilege is limited to confidential communications between the client and attorney. The attorney-client privilege is inapplicable to the case at bar because the letters do not constitute confidential communications. Subsection (1)(c) defines a confidential communication as one not intended to be disclosed to third persons. The existence of the letter was revealed to Investigator Mundy and its contents were revealed to appellant's girlfriend. Obviously, appellant cannot claim that what he "communicated" to his lawyers was confidential or in any way privileged. See Mobley v. State, 409 So.2d 1031 (Fla.1982). Accordingly, the denial of the motion to enforce section 914.04 was correct. Further, the combination of the lack of immunity in regard to the letters and the failure of defense counsel to object to the testimony regarding statements made by Johnston about the letters leads us to conclude that the motion in limine was properly denied and the testimony regarding the statements was admissible.

Appellant alleges that the trial court's denial of the public defender's motion to withdraw as counsel denied him the effective assistance of counsel. In a related claim, appellant contends that he was denied his right to self-representation by the trial court's denial of his oral motion to discharge counsel, which was made at a hearing on counsel's motion to withdraw. The trial court correctly denied both motions.

The public defender sought to withdraw from the case, in part, because Johnston disregarded his advice by continually calling the Orlando Police Department and inviting them to the jail so that he could give statements about the murder. Counsel also indicated that he could not pursue a line of defense suggested by appellant. The public defender considered the line of defense completely unethical. Counsel never disclosed this line of defense to the court because of the attorney-client privilege.

In verbalizing the reasons why he sought to discharge counsel and represent himself, appellant alleged that his lawyers invaded his right to privacy because they were in possession of a letter he had written to his stepmother. Appellant also expressed dissatisfaction with his attorney's failure to pursue a requested line of defense. As mentioned earlier, counsel considered this line of defense unethical.

At a hearing held on the public defender's motion to withdraw, the trial court advised Johnston of the various alternatives in regard to...

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