Lark v. State, 91-1641

• Decision Date: 28 April 1993
• Docket Number: No. 91-1641,91-1641
• Citation: 617 So.2d 782
• Parties: 18 Fla. L. Week. D1113 James I. LARK, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 782

617 So.2d 782

18 Fla. L. Week. D1113

James I. LARK, Jr., Appellant, v. STATE of Florida, Appellee.

No. 91-1641.

District Court of Appeal of Florida First District.

April 28, 1993.

Rehearing Denied June 4, 1993.

James B. Fensom and Michael J. Hauversburk of Barron, Redding, Hughes, Fite, Bassett & Fensom, Panama City, and Henry M. Coxe, III of Coxe & Mitchell, Jacksonville, for appellant.

Robert A. Butterworth, Atty. Gen., Amelia L. Beisner, Asst. Atty. Gen., for appellee.

KAHN, Judge.

James I. "Skipper" Lark, Jr. appeals his convictions and sentences for first degree murder of Carole Lark and second degree murder of Wesley Butler. The state obtained two indictments charging murder in the first degree, and at trial sought the death penalty on each charge. As to the charge of killing Mr. Butler, the jury convicted Lark of second degree murder. On the Carole Lark charge the jury recommended mercy, and the trial judge imposed a life sentence. We reverse and remand for a new trial because the trial court allowed the prosecuting attorney to improperly comment to the jury that Lark invoked his constitutional rights to silence and counsel, and also because the trial court erred in excluding a response made by Lark when informed by a deputy sheriff of the charges against him (points three and four on appeal).

In Lark's first point he contends that the trial court should have dismissed the charges against him because the state deliberately obstructed his attorneys from adequately preparing and presenting an effective state of mind defense to the original first degree murder charges. Many of the factors upon which Lark bases this point are touched upon in our discussion under sections I and II, infra. It should be apparent that law enforcement authorities may not with impunity deliberately block the timely and reasonable efforts of defense counsel to gather probative evidence essential to the preparation of a defense. We need not, however, reach the question of whether such a violation occurred in the present case, since we have determined that on the facts before us dismissal of the charges would not, in any event, have been an appropriate remedy.

In his second point Lark relies upon our decision in Reed v. State, 496 So.2d 213 (Fla. 1st DCA 1986), rev. denied, 504 So.2d 768 (Fla.1987), to argue that the conviction must be reversed because the state pursued the death penalty in bad faith. In the present case, the state initiated the prosecution against Lark as a death penalty case. After nine months of discovery, Lark's attorneys, and the assistant state attorney assigned to the case, Mr. Harper, entered into a preliminary agreement whereby the state would not seek the death penalty in exchange for Lark's agreement to be tried before a six member jury. When the State Attorney, Mr. Appleman, became aware of the agreement, he fired Mr. Harper, personally assumed control of the case and publicly announced he would seek the death penalty without regard to the preliminary agreement. Consequently, Lark filed a motion to compel enforcement of the agreement reached with Mr. Harper and a motion to dismiss on the ground that the state was seeking the death penalty in bad faith. The trial court denied both motions.

As indicated by this court in Reed, the state will not be allowed to death-qualify a jury in a case in which it appears that the death penalty may not be imposed as a matter of law. Although the state continued to pursue two charges of first degree murder against Lark, and to seek the death penalty on each, the jury returned a verdict of second degree murder as to one charge, and the trial court declined to impose the death penalty as to the remaining charge. Accordingly, Lark may not again be subjected to the death penalty, Wright v. State, 586 So.2d 1024 (Fla.1991), nor may he be retried on a charge of first degree murder as to the count on which the jury convicted him of second degree murder. H.L.A. v. State, 395 So.2d 250 (Fla. 1st DCA 1981). Since there exists, therefore, no possibility that Lark will ever be tried before a death-qualified jury on these charges, we do not reach this point on appeal.

Lark's fifth point raises the sufficiency of the evidence of premeditation. We find that the evidence viewed in a light most favorable to the state was sufficient to present a question for the jury. See Tibbs v. State, 397 So.2d 1120, 1125 (Fla.1981), affirmed, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982) ("No appellate court should reverse a conviction or judgment on the ground that the weight of the evidence is tenuous or insubstantial"). See also Aguilera v. State, 606 So.2d 1194 (Fla. 1st DCA 1992).

I

On the afternoon of August 29, 1989, Lark, an alcoholic, visited his stepmother, Carole Lark, at her home in Panama City. This home was the family residence of Lark's deceased father. Upon Lark's arrival, Carole was not at home, but another friend, Wesley Butler, was on a riding mower in the driveway. Shortly afterwards, Carole arrived and the three visited. Carole soon made a phone call to Margaret Bailey, Lark's girlfriend, for the purpose of explaining to Bailey that Lark was too drunk to drive and would require assistance in getting home. Ms. Bailey drove immediately to the Lark home.

A conversation then ensued between Skipper Lark, Carole Lark, Margaret Bailey and Wesley Butler. Primarily the four talked about their recollections of years past when Lark's deceased father developed the Miracle Strip Amusement Park and Shipwreck Island Water Park at Panama City Beach.

Around 4:15 in the afternoon, Lark excused himself to go to the bathroom. He returned a few minutes later carrying a pistol. At first Margaret Bailey thought the gun was one from Lark's father's collection, and that Lark wanted to talk about it. Instead, Lark began firing off rapid shots from the pistol. The shots struck Carole Lark, who fell to the floor, and Wesley Butler, who ran outside and collapsed in the driveway. Bailey, alarmed and frightened for her own safety, ran from the house, caught a ride to a nearby resort, and informed a security person of the events.

In approximately half an hour, emergency medical personnel, as well as deputies from the Bay County Sheriff's Department, arrived at the home. The deputies took Lark into custody and recovered the pistol from Harris, an EMT. Carole Lark was dead at the scene, and Wesley Butler died from his wounds later that evening at a local hospital.

At the Bay County Jail, sheriff's investigators Dufresne and Nolin took Lark to an office and began a taped interview. Lark's private attorneys, including Mr. Robert Hughes, arrived at the jail within minutes after the interview began and Hughes met with Lark. After meeting with Lark, attorney Hughes asked that the questioning be stopped. Hughes further requested that Lark be taken to a local hospital in order to have blood drawn for a blood alcohol test. Hughes made this request at approximately 6:30 p.m. In addition to the blood test, Hughes also desired to have his client seen immediately by a psychologist, psychiatrist, or other physician. Sheriff's personnel denied the request, but eventually agreed to take Lark to the hospital to have blood drawn after Lark signed a document in which he consented to the procedure. At 9:05 p.m. a blood sample was drawn at Bay Medical Center, which upon analysis revealed a .23 percent blood alcohol level as of that time. The next day Lark was admitted to the hospital with symptoms of alcohol withdrawal.

Dr. William A. Sybers, Bay County Medical Examiner, performed autopsies of Carole Lark and Wesley Butler. The doctor determined that Mrs. Lark was shot three times and died from a bullet wound to the heart. Butler was shot twice and died from loss of blood.

When informed that he was being charged with first degree murder in the deaths of both Mrs. Lark and Mr. Butler, Lark responded, "Who shot Wes Butler?" In the course of his defense, Lark presented no evidence that he did not shoot and kill both victims. His defense centered upon voluntary intoxication and, according to his view, lack of the degree of premeditation necessary to support a conviction for first degree murder. The prosecution adduced no evidence of motive.

At trial Lark introduced evidence that his whole blood alcohol level was .23 percent at 9:05 p.m. on the night of the shooting. Experts in the case testified that at the time of the shooting some four hours earlier, Lark's blood alcohol level would have been between .35 percent and .40 percent. Dr. Susan Danahy, a clinical psychologist and program director at the Friary, a recovery facility in Gulf Breeze, testified that at such a level one is not able to function mentally and reflect upon what he is doing even though he may be able to function physically. As a result of the turn of events after Lark's arrest, the only direct evidence of the degree of intoxication was that derived from the blood sample drawn after 9:00 p.m.

II

During the trial, attorney Hughes took the stand as a witness for the defense. Hughes testified that at 6:30 p.m. he requested Investigator Dufresne to allow Lark to have a blood test and a medical examination. Hughes explained to Investigators Dufresne and Nolin the purpose of having the blood drawn, which was to preserve it for evidentiary purposes and to insure that the proper procedures were followed so the blood test results would ultimately be admissible. Hughes was certain his client could have his blood drawn at the Bay Medical Center by a person legally qualified to do the procedure. Sheriff's personnel declined the request to go to Bay Medical Center and suggested that a nurse from the jail would be available to draw the blood. After considering the matter for about half an hour, Hughes, who was at first reluctant to have the nurse draw the blood because of uncertainty about qualifications, told Dufresne to go ahead and have...