Kearse v. State

Decision Date29 June 2000
Docket NumberNo. SC90310.,SC90310.
Citation770 So.2d 1119
PartiesBilly Leon KEARSE, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Richard L. Jorandby, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Sara D. Baggett, Assistant Attorney General, West Palm Beach, Florida, for Appellee.

PER CURIAM.

Billy Leon Kearse appeals the imposition of the death penalty upon resentencing. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm the death sentence.

Kearse was convicted of robbery with a firearm and first-degree murder for the shooting of Fort Pierce police officer Danny Parrish. The facts surrounding this crime are discussed in Kearse v. State, 662 So.2d 677, 680 (Fla.1995). Following the jury's recommendation, the judge sentenced Kearse to death for the first-degree murder. On appeal, this Court affirmed the convictions but vacated the death sentence and remanded for resentencing because a number of errors occurred during the penalty phase of the trial. See id. at 685-86. This Court concluded that the trial court improperly doubled the "avoid arrest/hinder enforcement of laws" and "murder of a law enforcement officer" aggravating circumstances, erred in denying Kearse's request for an expanded instruction on the cold, calculated, and premeditated aggravating circumstance, and erroneously applied the heinous, atrocious, or cruel aggravating circumstance. See id. Consequently, this Court vacated Kearse's death sentence and remanded to the trial court for a new penalty phase proceeding before a jury. See id. at 686.

The case was remanded to St. Lucie County, where the offense occurred, and pretrial hearings were conducted there. However, because venue had been changed to Indian River County in the original trial, the penalty proceeding was conducted there. The jury unanimously recommended that Kearse be sentenced to death; the trial court followed that recommendation and imposed the death sentence. The trial court found two aggravating circumstances: the murder was committed during a robbery; and the murder was committed to avoid arrest and hinder law enforcement and the victim was law enforcement officer engaged in performance of his official duties (merged into one factor). The court found age to be a statutory mitigating circumstance and gave it "some but not much weight." Of the forty possible nonstatutory mitigating factors urged by defense counsel, the court found the following to be established: Kearse exhibited acceptable behavior at trial; he had a difficult childhood and this resulted in psychological and emotional problems. The court determined that the mitigating circumstances, neither individually nor collectively, were "substantial or sufficient to outweigh the aggravating circumstances."

On appeal to this Court, Kearse raises twenty-two issues as error: (1) the trial court's refusal to return venue to the county where the offense occurred; (2) the denial of Kearse's objection to a motion to comply with a mental health examination; (3) the denial of Kearse's motion for a continuance; (4) the proportionality of the death penalty; (5) the trial court's evaluation of the mitigating circumstances in the sentencing order; (6) the trial court's failure to evaluate the nonstatutory mitigating circumstance of emotional or mental disturbance; (7) the denial of Kearse's motion to disqualify the prosecutor; (8) the denial of Kearse's motion for a mistrial based on the prosecutor's comments during argument; (9) the trial court informed the jury that Kearse had been found guilty in a previous proceeding, but that the appellate court had remanded the case for resentencing; (10) the denial of Kearse's motion to interview jurors in order to determine juror misconduct; (11) pretrial conferences were conducted during Kearse's involuntary absence; (12) the granting of the State's cause challenge to Juror Jeremy over Kearse's objection; (13) the denial of Kearse's cause challenges to Jurors Barker and Foxwell; (14) Kearse's compelled mental health examination constituted an unconstitutional one-sided rule of discovery; (15) the compelled mental health examination violated the ex post facto clauses of the United States and Florida Constitutions; (16) the compelled mental health examination violated Kearse's Fifth, Sixth, Eighth, and Fourteenth Amendment rights; (17) the victim impact jury instruction was vague and gave undue importance to victim impact evidence; (18) the trial court gave little weight to Kearse's age as a mitigating circumstance; (19) the trial court should have merged the "committed during a robbery" aggravating circumstance with the other aggravators; (20) the trial court should not have considered the "committed during a robbery" aggravating circumstance; (21) the admission of photographs of the victim; and (22) electrocution is cruel and unusual punishment.

In his first issue, Kearse contends that the trial court erred by not permitting him to withdraw his waiver of venue. The shooting of Officer Parrish occurred in St. Lucie County. Kearse moved for a change of venue before his original trial on the basis of pretrial publicity and possible difficulty in seating an impartial jury. The motion was granted and the first trial was held in Indian River County, which is in the same judicial circuit as St. Lucie County. The judge transferred the case back to St. Lucie County for the sentencing hearing and final sentencing. Thus, Kearse's appeal came to this Court as a conviction from the circuit court in St. Lucie County. Venue was never raised as an issue in Kearse's first appeal and this Court simply remanded to "the trial court with directions to empanel a new jury, to hold a new sentencing proceeding, and to resentence Kearse." Kearse, 662 So.2d at 686. Thus, there was initially some confusion as to which county would be the location for the resentencing. A pretrial conference was conducted by Judge Thomas J. Walsh in St. Lucie County on January 30, 1996. During this hearing, defense counsel moved to change venue back to St. Lucie County, in effect withdrawing Kearse's previous waiver of venue. Initially, the State indicated no opposition to such a change, but the judge deferred consideration of venue until Kearse could be present for the discussion. At a subsequent hearing on February 6, 1996, the State indicated that the proper venue was Indian River County and should not be changed back to St. Lucie County. Kearse personally agreed to the resentencing proceeding being conducted in Indian River County. After Kearse successfully moved to recuse Judge Walsh, however, defense counsel renewed the motion for resentencing to be held in St. Lucie County. Newly appointed Judge C. Pheiffer Trowbridge also deferred consideration of the motion until Kearse could be heard personally. After hearing from all parties and Kearse, the judge denied the motion. The judge noted that all of the reasons for granting the original change of venue (pretrial publicity and possible difficulty in seating an impartial jury) were still factors in the case and that this guided his decision to keep venue in Indian River County.

A motion for a change of venue is addressed to the trial court's discretion and will not be overturned on appeal absent a palpable abuse of discretion. Cole v. State, 701 So.2d 845, 854 (Fla.1997), cert. denied, 523 U.S. 1051, 118 S.Ct. 1370, 140 L.Ed.2d 519 (1998). Given the trial court's articulated reasons for denying a change of venue back to St. Lucie County and Kearse's original request for the change to Indian River County, the denial here cannot be deemed an abuse of discretion and thus we find no merit to this issue.

Kearse also claims that he was involuntarily absent at two pretrial conferences where the venue issue was discussed and that he did not properly waive his presence at pretrial proceedings (claim 11). Florida Rule of Criminal Procedure 3.180(a) states that "the defendant shall be present ... at any pretrial conference, unless waived by the defendant in writing." Because Kearse had not waived his presence at the time of the January 30, 1996, hearing, we find that error occurred. See Pomeranz v. State, 703 So.2d 465, 471 (Fla.1997)

(conducting pretrial conferences in defendant's absence without defendant's express waiver was error although defense counsel purported to waive defendant's presence); Coney v. State, 653 So.2d 1009, 1012 (Fla.1995) (same), receded from on other grounds by Boyett v. State, 688 So.2d 308, 310 (Fla.1996).

However, such violations are subject to harmless error analysis and the proceeding will only be reversed on this basis if "fundamental fairness has been thwarted." Pomeranz, 703 So.2d at 471. Here the record reflects that Judge Walsh took the venue issue under advisement and delayed hearing arguments on any motions until Kearse could be present. On February 6, 1996, Kearse filed a written waiver of his presence at all pretrial conferences. At a hearing that same day, Judge Walsh acknowledged the written waiver and informed Kearse that the venue issue would be discussed in his presence. Kearse then personally represented to the court that he wanted resentencing in Indian River County. Thus, Kearse's absence during the January 30 conference was harmless beyond a reasonable doubt. See id.

On June 21, 1996, after Kearse successfully moved to recuse Judge Walsh from the case, defense counsel renewed the motion for resentencing to be held in St. Lucie County and raised the issue in Kearse's absence. Although defense counsel acknowledged on the record that Kearse had previously filed a waiver of his right to appear at the hearing, Judge Trowbridge took the matter under advisement until Kearse could be heard personally. Because Kearse had...

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