Kight v. State, 65749

CourtUnited States State Supreme Court of Florida
Citation512 So.2d 922,12 Fla. L. Weekly 357
Docket NumberNo. 65749,65749
Parties12 Fla. L. Weekly 357 Charles KIGHT, Petitioner, v. STATE of Florida, Respondent.
Decision Date09 July 1987

Page 922

512 So.2d 922
12 Fla. L. Weekly 357
Charles KIGHT, Petitioner,
STATE of Florida, Respondent.
No. 65749.
Supreme Court of Florida.
July 9, 1987.
Rehearing Denied Oct. 14, 1987.

Page 923

William J. Sheppard, Elizabeth L. White and Courtney Johnson of Sheppard and White, P.A., Jacksonville, for petitioner.

Page 924

Robert A. Butterworth, Atty. Gen. and Mark C. Menser, Asst. Atty. Gen., Tallahassee, for State.

EHRLICH, Justice.

Charles Kight appeals his conviction of first-degree murder and sentence of death. We have jurisdiction, article V, section 3(b)(1), and affirm both the conviction and sentence.

On December 7, 1982, Lawrence Butler, a black Jacksonville cab driver, was reported missing. Butler's body was found seven days later in a remote area of northside Jacksonville. The apparent cause of death was multiple (51) stab wounds to the upper region of his body. On the same day Butler was reported missing, Kight and codefendant, Gary Hutto, were arrested for the unrelated armed robbery of a second black cab driver, Herman McGoogin. McGoogin had identified the pair as the individuals who robbed him at knife point after he had picked them up at a Main Street bar. During Kight's pretrial incarceration on the McGoogin charge and while under investigation for the Butler murder, Kight admitted his presence during the murder but maintained that Hutto had robbed and murdered Butler. At Kight's trial, the main evidence against him consisted of his exculpatory statements to police, his admissions to "jailhouse informants" and McGoogin's testimony concerning the unrelated robbery.

Kight made three statements concerning the murder to police, all of which were admitted into evidence. In the most detailed of these statements, which was read to the jury, Kight recounted how Hutto approached him in a Main Street bar and asked if he wanted to go with him to visit a friend. Hutto had already called a cab and when it arrived the pair got in and Hutto directed the driver to a dirt road on the north side of town. Once on the dirt road, Hutto put a knife to the driver's throat and told him to stop the car. When the driver made an unexpected move, Hutto stabbed him in the chest. The driver then jumped from the car and ran. Kight described the rings, watch and knife taken from the driver and gave a detailed account of how Hutto continued the attack on Butler outside the car, finally cutting his throat "because he was still breathing." Kight described how Hutto then drove the car off a bridge into the river and hid the rings in a deserted house. After giving this statement Kight took the police first to where the car had been ditched and then to the house where the rings were hidden.

Four former inmates at the Duval County jail testified that on various occasions during his incarceration at that facility Kight bragged that he had killed Butler and was going to blame it on Hutto. A fifth inmate from the Duval County jail testified for the defense that Hutto had bragged to him about killing Butler and getting away with it.

On the defendant's request, Gary Hutto was called as a court witness. On cross-examination by the state Hutto testified that after spending the day of December 6 together drinking and taking drugs he and Kight left the R & R Bar on Main Street at about midnight. Hutto claimed he passed out outside the bar and the next thing he remembers he was sitting in the back seat of a cab. He testified that he got out of the cab to find Kight holding "some guy" down in the trunk stabbing him in the chest. When he asked Kight what he was doing, Kight responded "I robbed him, I got to kill him so he can't identify me." Kight then told the man to get up and the man ran about thirty or forty feet before he fell to the ground. Kight knealt down by the man but Hutto was unable to see what he was doing. Kight then returned to the car, got in, Hutto got in the back seat, and they drove to a bridge where Kight drove the car into the river. Hutto testified that he had blacked out after the incident and could not remember what had happened for four months.

Kight was convicted of first-degree murder. The jury recommended and the trial court imposed the death penalty. Kight raises seventeen issues in this appeal, 1 only ten of which warrant discussion.

Page 925

Guilt Phase

First, we address Kight's claim that the statements made to police concerning the murder should have been suppressed because they were obtained in violation of his fifth and sixth amendment rights. After a thorough review of the circumstances under which the statements were given, we conclude that although Kight's initial statement to police was obtained in violation of his fifth amendment rights, the two more detailed statements were properly admitted into evidence.

On December 7, 1982, upon his arrest in connection with the McGoogin robbery, Detective Weeks gave Kight his Miranda warnings. When Kight declined to talk, questioning ceased. On December 8, at his first appearance, Kight was appointed counsel in connection with the robbery charge. One week after his arrest, on December 14, while still in custody on the robbery charge, Kight was again given his rights and questioned by police. The scope of this interrogation was limited solely to the Butler murder. After waiving his rights, Kight stated that he had no knowledge of the murder. Three days later, on December 17, Detective Weeks accompanied Kight from his cell to the property room in order to seize Kight's clothing for the purpose of testing them for traces of the murder victim's blood. While outside the property room, Kight made the unprovoked statement that he was "not afraid of the chair." Officer Weeks then inquired "what chair are you talking about?" Kight replied "the electric chair because Hutto stabbed the [cab driver] and cut his throat and he's still got the man's watch." At this point Detective Weeks promptly interrupted Kight and advised him of his Miranda rights. Kight waived his rights and added that he knew the location of the taxi cab and the murder victim's rings. Kight was then taken to the homicide division where he was again advised of his rights by Detective Kesinger. Kight again waived his Miranda rights. During further interrogation by Detective Kesinger, Kight gave the detailed account of the murder which was read to the jury.

Kight claims these statements were taken in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). In Edwards the court held that once an accused has expressed a desire to deal with the police only through counsel, he cannot be subjected to further interrogation until counsel has been made available to him, unless the accused has himself initiated further communication, exchanges or conversations with the police. 451 U.S. at 485, 101 S.Ct. at 1885. As supplemental authority in support of his Edwards claim Kight directs our attention to the recent decision of the Seventh Circuit Court of Appeals in Espinoza v. Fairman, 813 F.2d 117 (7th Cir.1987). Faced with a fifth amendment claim based on a factual scenario virtually identical to that presented in this case, the seventh circuit held that when an accused has been appointed counsel, while in custody on one charge it is a violation of his fifth amendment rights thereafter, while he remains in continuous custody, to subject him, in the absence of counsel, to police-initiated interrogation about an unrelated crime. Compare Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). (No fifth amendment violation where an accused asserts his right to remain silent in connection with one charge and is subsequently, while still in custody, questioned solely about an unrelated charge.) After concluding that by accepting counsel at his arraignment on a weapons charge, Espinoza had invoked his "fifth amendment right to counsel," the

Page 926

seventh circuit reasoned that this invocation remained in effect because the custodial interrogation concerning an unrelated murder occurred while Espinoza remained in continuous police custody and because interrogation was police initiated, Espinoza was incapable of waiving his rights. 813 F.2d at 122. Even if we were to adopt the seventh circuit's holding in Espinoza, there was no Edwards violation in this case because it was Kight who initiated the conversation outside the property room when he made the unprovoked statement to Detective Weeks that he was "not afraid of the chair." We cannot agree with Kight's contention that the mere removal of him from his cell in order to obtain a change in clothing constituted action on the part of the police that was reasonably likely to evoke an incriminating response, thus, amounting to an interrogation under Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980).

However, although we find no Edwards violation, Kight was entitled to a fresh set of warnings before further interrogation in connection with the Butler homicide. Kight was clearly in custody for Miranda purposes when the December 17 statements were obtained. Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968). Detective Weeks' inquiry "what chair?" constituted interrogation. The statement was an express question which was reasonably likely to and, in fact, did elicit an incriminating response. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297. Thus, Kight's initial statement to Detective Weeks should have been suppressed as the product of an unwarned custodial interrogation under Miranda. However, because the subsequent advisement of his rights by Detective Weeks and later by Detective Kesinger cured any technical procedural violation of Miranda, Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), Kight's subsequent statements to Weeks and Kesinger were properly admitted into evidence. We stress that these statements are...

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