King v. State, 68631

• Decision Date: 24 September 1987
• Docket Number: No. 68631,68631
• Citation: 12 Fla. L. Weekly 502,514 So.2d 354
• Parties: 12 Fla. L. Weekly 502 Amos Lee KING, Jr., Appellant. v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 354

514 So.2d 354

12 Fla. L. Weekly 502

Amos Lee KING, Jr., Appellant. v. STATE of Florida, Appellee.

No. 68631.

Supreme Court of Florida.

Sept. 24, 1987.

Rehearing Denied Nov. 20, 1987.

Baya Harrison, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Michael J. Kotler and Robert J. Krauss, Asst. Attys. Gen., Tampa, for appellee.

PER CURIAM.

King appeals his sentence of death imposed on resentencing. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm the sentence.

While he was an inmate at a work-release correctional facility, the state charged King with the first-degree murder of an elderly woman, the robbery and arson of her home, escape, and the attempted murder of a prison counselor. The jury convicted him as charged and recommended that he be sentenced to death. The trial court imposed a death sentence, and this Court affirmed both the conviction and sentence. King v. State, 390 So.2d 315 (Fla.1980), cert. denied, 450 U.S. 989, 101 S.Ct. 529, 67 L.Ed.2d 825 (1981).

In 1981 the governor signed a death warrant on King who then filed a motion for postconviction relief, alleging ineffective assistance of trial counsel. After an evidentiary hearing, the trial court denied the motion, and this Court affirmed that denial. King v. State, 407 So.2d 904 (Fla.1981). King then filed a petition for writ of habeas corpus in federal court, and, on appeal, the eleventh circuit found that King's trial counsel had provided ineffective assistance at the penalty phase of his trial and remanded to the district court for entry of an appropriate writ. King v. Strickland, 714 F.2d 1481 (11th Cir.1983). The United States Supreme Court, however, vacated the eleventh circuit's judgment and remanded for reconsideration in light of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland v. King, 467 U.S. 1211, 104 S.Ct. 2651, 81 L.Ed.2d 358 (1984). On reconsideration the circuit court adhered to its original holding that King's trial counsel rendered ineffective assistance at the penalty phase of King's trial. King v. Strickland, 748 F.2d 1462 (11th Cir.1984), cert. denied, 471 U.S. 1016, 105 S.Ct. 2020, 85 L.Ed.2d 301 (1985).

At the federally mandated resentencing proceeding the trial court empanelled a new jury, both sides presented evidence and argument, and the jury unanimously recommended that King be sentenced to death. The trial court imposed a death sentence, finding five aggravating circumstances (committed while under sentence of imprisonment, previous conviction of violent felony, great risk of death to many persons, committed during burglary and sexual battery, and wicked, evil, atrocious, or cruel) and no mitigating factors. On appeal King claims that the trial court erred by 1) allowing the state to exclude blacks from the jury panel; 2) refusing to allow King to present evidence of his innocence while allowing the state to present evidence of his guilt; 3) refusing to allow presentation of evidence that the death penalty is imposed in a racially discriminatory manner; and 4) allowing the state to present evidence based on hearsay.

The jury pool apparently contained three black prospective jurors. Neither the state nor the defense challenged the first of them, a young black woman, and she eventually sat on the jury. The state did, however, use a peremptory challenge on the second black venireman, a pastor who also drove a school bus. Defense counsel objected to his excusal, citing State v. Neil, 457 So.2d 481 (Fla.1984). Noting the state's acceptance of the first black prospective juror, the court refused to find excusing the second to be a systematic exclusion and overruled the objection.

Defense counsel also objected to the state's excusing the third black prospective juror, a young woman who worked as a police department clerk-typist, claiming that the state was establishing a pattern of systematically excluding blacks from the jury panel. This woman had initially indicated that she would be unable to follow the law if she were a juror, and the following discussion occurred:

Ms. McKeown [assistant state attorney]: Judge, I still don't believe that we have in any way set any type of systematic exclusion. There is no proof of it. If the Court feels there is, at that juncture we will give a reason for why we are excluding her.

The Court: I think it might be appropriate to give a reason in that the record has something in it. I think it is safe to do that.

Ms. McKeown: Okay. She is a young black female, the Defendant is a young black male. Her response to the Court's inquiry with regard to her feelings about the death penalty we felt were sufficient for us to have concern about how she would apply the law.

Mr. Harrison [defense counsel]: Your Honor, I think that the State has said it better than I could. Miss McKeown wants to excuse this lady in part because of her race, because she is black. She has said that and that is not a Constitutional reason to exclude someone.

* * *

* * *

Mr. Sandefer [assistant state attorney]: Miss McKeown and I are working on this together. And we agreed, although we didn't discuss our reasons for it in very much detail to excuse her. My problem that I had with this lady was she originally said she could not follow the law. She then indicated later she could. That caused me some concern. Then she threw up a situation where she said in my reading of the death penalty it is not appropriate for somebody who killed one person. That caused me concern.

Apparently she feels like there has to be past murders involved. Obviously we don't have that. I have concern over her being able to follow the law because of the changes in what she said and the final statement about the death penalty.

The Court: ... She is indicating the law is not evenly followed in all cases.

Mr. Sandefer: That is correct, and that is our concern.

The Court: She said that.

Ms. McKeown: Judge, I would be less than candid if I didn't state the other--I plan on being honest with the Court. I think it is whether or not the sole basis for exclusion is race, and that is certainly not the sole basis for excluding that lady. And, as I think the Court recognizes, we have accepted, do intend to plan on accepting Mrs. McBride who is another young black female on that jury.

Mr. Harrison: Well, Your Honor, I think we have made our position clear. I think that the State has failed the Neal versus State [sic] test. They want to exclude a person because of their race, at least in part, and I think what Sandefer is doing is coming up with excuses to try to reinforce.

The Court: I'll make a ruling. I think her statement with regard to uneven imposing of the death penalty is certainly more than sufficient justification for excusing her. Overrule the objection.

In State v. Neil, 457 So.2d 481 (Fla.1984), this Court held that peremptory challenges cannot be exercised solely on the basis of race. To challenge the other side's peremptory excusals, a party must object in a timely manner and demonstrate on the record both that those persons challenged are members of a distinct racial group and that there is a strong likelihood they are being challenged solely because of their race. Id. at 486. King has met the first two parts of the Neil test but not the third, i.e., a strong likelihood of being challenged solely because of race. As the above-quoted portion of the record shows the state had several reasons for excusing this prospective juror. The trial judge listened to and questioned this woman, listened to counsels' argument, and evaluated the credibility of all concerned on this issue. We see no reason to disturb his ruling on excusing this prospective juror or his ruling that no systematic exclusion had occurred when the state previously excused the second black prospective juror. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 1724 n. 21, 90 L.Ed.2d 69 (1986); Neil, 457 So.2d at 487, n. 10.

King also claims that the trial court erred in allowing the state to present evidence that he committed this murder and in refusing to let him introduce evidence showing his innocence because the federal court "virtually mandated" the introduction of evidence which would have created "lingering doubt" about his guilt. King's current attorney wanted to present an FBI agent's testimony on hair and fiber analysis, wanted to show that the knife admitted into evidence was inconsistent with the victim's wounds, and wanted to attack the circumstantial evidence against King, among other things. At a pretrial consideration of King's motion to present exculpatory evidence King's counsel stated that he disagreed with the eleventh circuit's assessment of King's prior counsel's effectiveness during the guilt portion of King's trial. He said that he "sincerely felt that that question [guilt/innocence] had never been completely resolved" and that he wanted to create in the minds of the jurors a "serious, serious question, serious doubt, a lingering doubt if you will, some doubt of his guilt." The trial court stated that guilt or innocence had been put to rest on appeal and that the current proceeding dealt only with the penalty to be imposed. The state argued that King could testify and deny his guilt, but that he should not be allowed to relitigate his guilt. The court ruled that the question of guilt could not be relitigated, that the proffered evidence was irrelevant to the appropriate penalty, and that the presentation of evidence would be limited to evidence going to aggravating and mitigating circumstances.

We find no error on this point. The state had several witnesses testify as to the circumstances of the crimes and the injuries to the victims. Defense counsel objected numerous times, chiefly to the relevancy of the testimony to the sentencing proceeding, but the court found the state's evidence relevant to showing the existence of statutory...