Keen v. State

• Decision Date: 19 March 1987
• Docket Number: No. 67384,67384
• Citation: 12 Fla. L. Weekly 138,504 So.2d 396
• Parties: 12 Fla. L. Weekly 138 Michael Scott KEEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 396

504 So.2d 396

12 Fla. L. Weekly 138

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

No. 67384.

Supreme Court of Florida.

March 19, 1987.

Michael D. Gelety, Fort Lauderdale, for appellant.

Robert A. Butterworth, Jr., Atty. Gen., and Carolyn V. McCann, Asst. Atty. Gen., West Palm Beach, for appellee.

EHRLICH, Justice.

The appellant, Michael Scott Keen, appeals his conviction for first-degree murder and his sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We reverse and remand for a new 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 twenty-one 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 Sheriff's 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 sheriff's 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. 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.

Following a trial before a Broward County jury Keen was convicted of first-degree murder. The trial judge followed the jury's unanimous recommendation and imposed the sentence of death.

Keen's first claim here is that Florida is without jurisdiction to try him for this murder. According to Keen's theory, because the murder was committed on the high seas outside Florida's territorial jurisdiction, the federal government has exclusive jurisdiction to try him for this crime by virtue of 18 U.S.C. § 7. We disagree. Our decision in Lane v. State, 388 So.2d 1022 (Fla.1980), controls. In Lane we were faced with the factual situation wherein the charged offense, first-degree murder, was commenced in Florida and concluded in Alabama. Recognizing that the fatal blow to the victim was probably struck in Alabama, we held that pursuant to section 910.005(2), Florida Statutes (1977), Florida had jurisdiction to try the defendant. Id. at 1026. We reasoned that when one of the essential elements of the offense occurs in Florida, Florida courts have the power to try the defendant; whether an essential element of the offense occurred within the state is a factual question to be determined by the jury under appropriate instructions. Id. at 1028. Sub judice, it is clear from the record that the essential element of premeditation occurred within Florida. The jury was properly instructed by the trial court that in order to return a verdict of guilty, they must find that an essential element of the crime occurred within the state. Keen attempts to avoid our holding in Lane by alleging that Lane is applicable only in cases involving conflicting jurisdictional claims between states. As this case theoretically involves a claim between Florida and the federal government, ² Keen argues that the federal courts have exclusive jurisdiction. However, none of the cases cited by Keen suggests such exclusive jurisdiction. Indeed, the cases cited all recognize that concurrent jurisdiction exists between a state and the federal government where the offense violates both sovereigns' laws. See, e.g., Leonard v. United States, 500 F.2d 673, 674 (5th Cir.1974); Hoopengarner v. United States, 270 F.2d 465, 471 (6th Cir.1959); Murray v. Hildreth, 61 F.2d 483, 485 (5th Cir.1932).

The next issue which we choose to address is that a statement Keen gave to the arresting detectives should have been suppressed. We reject this contention and find the trial court's denial of Keen's motion to suppress was proper. Keen was arrested in Seminole County on August 24 at approximately 10 a.m. and was read his Miranda ³ rights. He was booked at the Seminole County Detention Center at approximately 2 p.m. where he was again advised of his rights which he acknowledged in the booking form. Although Keen had upon his initial arrest asked an employee to contact an attorney for the purpose of seeking bail, Keen initiated conversations with the detectives throughout the remainder of the day. At 8 a.m. the next morning Keen was again informed of his rights before Detectives Amabile and Scheff began transporting him by car back to Broward County. Keen again initiated conversations with the detectives during this trip. They arrived in Broward County at approximately 12:30 p.m. whereupon Keen was advised of his rights for the fourth time; he also signed a waiver of rights form which was witnessed by both detectives. Keen desired to give the detectives a statement but did not want it tape recorded. Detective Amabile wrote out in question and answer form the contents of the conversation he had just had with Keen. Although he refused to sign the statement, Keen made additions to and corrections in the statement. In this handwritten statement Keen claimed that he and the victim had been embracing by one of the boat's railings when Shapiro came up from behind and pushed Keen and Lopez overboard. According to this account, Keen did not see the victim once he was in the water and speculated that she must have hit her head on the diving platform. Keen also claimed to have gotten back on board the boat, which was traveling in circles at a speed of ten knots, by "leading" the boat and grabbing the dive platform in order to hoist himself back on board. Once Keen was again on board and driving, they searched for the victim until darkness set in. Keen also told the detectives that he went along with Shapiro's original version of the events because he did not want Shapiro to appear to be a liar.

Keen urges three reasons why his statement should have been suppressed. First, he claims that pursuant to Rule of Criminal Procedure 3.130, which requires an arrested person to be taken before a judicial officer within twenty-four hours of arrest, any statement made in violation of the rule must be suppressed. Keen points out that the statement at issue here was made more than twenty-four hours after his arrest. While a violation of the rule has been shown, we reject Keen's suggestion that an otherwise voluntary statement given after twenty-four hours is per se...