Keen v. State

• Decision Date: 28 September 2000
• Docket Number: No. SC88802.,SC88802.
• Citation: 775 So.2d 263
• Parties: Michael Scott KEEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

775 So.2d 263

Michael Scott KEEN, Appellant, v. STATE of Florida, Appellee.

No. SC88802.

Supreme Court of Florida.

September 28, 2000.

Rehearing Denied October 31, 2000.

Richard Jorandby, Public Defender, and Richard B. Greene, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Appellant.

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

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon appellant Michael Scott Keen (Keen). We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we reverse Keen's first-degree murder conviction, vacate his sentence of death and remand for further proceedings consistent with this opinion.

PROCEDURAL HISTORY

This is the third time this case has been before us. Keen was originally indicted in 1984 and charged with first-degree murder in the death of his wife, Anita Lopez Keen. After Keen was convicted and sentenced to death, we reversed both the conviction and sentence on appeal and remanded for a new trial based on prosecutorial misconduct. See Keen v. State, 504 So.2d 396 (Fla.1987),

disapproved of on other grounds, Owen v. State, 596 So.2d 985 (Fla.1992). On remand, Keen was again convicted of first-degree murder and sentenced to death. As in the first appeal, we again reversed and remanded for a new trial based on the presence of unauthorized materials in the jury room, and the trial court's failure to conduct an in-camera inspection of the grand jury testimony of the State's star witness. See Keen v. State, 639 So.2d 597 (Fla.1994).

In his second retrial, Keen was once again convicted by the jury of first-degree murder on June 30, 1995. The penalty phase was held on August 14, 1995, and the jury¹ recommended, by a vote of seven to five, a sentence of life imprisonment without possibility of parole for twenty-five years. The trial judge held a sentencing hearing on October 19, 1995, and imposed a sentence of death on July 15, 1996, overriding the jury's advisory sentence of life imprisonment.²

MATERIAL FACTS

Guilt Phase

The following facts were adduced during Keen's first trial:

The evidence against Keen adduced at trial was primarily based on the testimony of Ken Shapiro. When Shapiro first moved to Florida in 1978 he was hired by Keen to work for a company managed by Keen. Shortly thereafter Keen invited Shapiro to become his roommate, a relationship which continued, with one brief interruption, until at least the end of 1981. Keen was very generous financially to Shapiro, providing him with numerous small loans and helping him out with rent and food; at one point Keen provided Shapiro with a Cadillac. There was no discussion that Shapiro was to repay Keen. According to Shapiro, some time in 1980 Keen informed him that he wished to retire before the age of forty and that the easiest way to accomplish this would be to find an unsuspecting girl, marry her, insure her life, murder her and then invest the proceeds. Keen met the victim, Anita Lopez, in late summer of 1980. Lopez was then twentyone years old, Cuban born and worked in a tractor factory. After Keen began seeing Lopez regularly, he told Shapiro, "I feel Anita is the girl." Shortly thereafter, Lopez moved in with Keen and Shapiro at their Ft. Lauderdale home. By early 1981 Keen began to discuss with Shapiro the actual manner in which his plan could be accomplished. Keen's first suggestion was to push the victim off a high building, but eventually drowning was decided upon. In June 1981, two separate insurance policies were taken out each insuring Anita Lopez's life for $50,000. Both policies contained double indemnity provisions in case Lopez met an accidental death and both policies named Keen as the primary beneficiary.

Keen and Lopez were married on August 1, 1981. Shortly thereafter it was discovered that Lopez was pregnant which, according to Shapiro's testimony, forced Keen to accelerate the implementation of his plan. Shapiro testified that Keen threatened to kill him or his grandparents if he went to the authorities. Shapiro further testified that he felt "boxed in" and so remained quiet and did not tell anyone of Keen's plan. Keen allegedly told Shapiro that this would be Shapiro's way of repaying his debt to Keen and to "wipe the slate clean."

In late October or early November of 1981 Keen informed Shapiro that if Sunday November 15 was a nice day, he would proceed with the plan. Sometime in the late morning or early afternoon of the 15th, Keen and the victim left their canal-front home and traveled in Keen's boat, the Foreplay Too, through the intercoastal waterway. By prearrangement, Keen and the victim stopped at a waterfront bar, Tug Boat Annie's; shortly thereafter, Shapiro arrived at the bar. After spending some period of time there the three boarded the boat and headed out into the ocean. When the boat was approximately fifteen to eighteen miles out, Keen, who had been driving, put the boat in neutral, walked to where the victim was standing and pushed her from behind into the ocean. Keen told Shapiro to move the boat out of the victim's range; Keen took over the controls and kept the boat out of the victim's range. According to Shapiro, the plan was to actually watch the victim drown so that her body could be recovered and Keen could then collect the insurance proceeds. However, darkness set in and Shapiro and Keen lost sight of the victim. They returned to Keen's backyard dock whereupon Shapiro called the Coast Guard and the Broward County Sheriffs office. Keen gave statements to the authorities that at some point the victim, who was four to five months pregnant at the time, went down into the cabin below to rest and that when they returned home, she was not there. A week later Shapiro gave a sworn statement to the sheriffs office corroborating Keen's version of an unexplained accident. Shapiro also repeated the story to an attorney hired by Keen to initiate the insurance claims process.

The next time Shapiro gave a statement concerning these events was in August 1984 when he was approached by detectives from Broward County. [Note 1] In this statement Shapiro related the same version of events that he later testified to at trial. Following Shapiro's August 1984 statement Broward County Detectives Scheff and Amabile located Keen who was living under an assumed name in Seminole County. Keen was arrested on August 23 at his place of business and was returned to Broward County on August 24.

[Note 1:] It appears that appellant's brother, Patrick Keen, contacted a representative of one of the companys[companies] who had insured Anita Lopez Keen's life, offering to tell the "true" story of her death in exchange for a finder's fee. The representative then contacted the Broward County authorities who in turn contacted Shapiro. At trial Shapiro explained that he finally told the truth about what had happened to the victim because his knowledge of the murder was devastating him and that he knew sooner or later he would have to tell someone. He further explained that he was testifying without immunity because he wanted to get the story off his chest.

Keen, 504 So.2d at 397-98.

Former Broward County deputy sheriff Hector Mimoso testified that he was dispatched to Keen's residence the night of Anita Keen's disappearance. He related that while he was asking Keen questions, Shapiro "was giving the answers." Keen reportedly "spent all of the time sitting on the couch and he was very calm." Mimoso inspected the boat and found it "very tidy, very well kept, put away, like they had just been cleaned." He also testified that he climbed up to the flying bridge and, in observing where it was in relation to the boat's stern, said "it would have been possible to hear a scream or splash of water." Mimoso testified that he returned to the house and asked Keen if he had heard a scream or splash of water, to which Keen replied that he had not. On cross-examination, Mimoso stated that he did not start the boat engines to determine how loud the sound would be and what could be heard with the engines running. Mimoso also reiterated that Shapiro answered all of the questions until he told Shapiro to cease and desist, and he observed Shapiro pacing around and hovering near where Mimoso was questioning Keen.

Detective Don Scarborough of the Broward County Sheriffs Department testified that he interviewed Keen on December 10, 1981, a tape recording of which was published to the jury. Keen related in that statement that Anita had grown tired as the boat returned to shore and went down to the cabin to sleep, but she was not there when the boat docked at his home. He also stated that the "engine was loud... [t]he music was blaring and we were talking. I didn't hear anything. I don't think Ken did either, and we did not see her or hear her come out during the course of this time that we were coming back."

The prior sworn testimony of Don Johnson, a Life of Virginia sales representative, was read into evidence.³ Servicing responsibility for Keen's life insurance policies was transferred to Johnson's territory when Keen moved to Fort Lauderdale from the Orlando area in June 1981. After being contacted by Johnson and not changing his own policies, Keen obtained a $50,000 double indemnity policy insuring Anita's life, meaning it would pay the beneficiary, Keen, an additional amount if Anita died an accidental death.

Maddie Genova, a former Prudential Insurance Company office worker, appeared at trial and identified a second $50,000 double indemnity, whole life insurance policy insuring the life of Anita Keen, for which Keen was also the beneficiary. This second policy was obtained when a Prudential agent made a cold call on the Keens. Keen himself already had $115,000 in life insurance with...