Lark v. State, 94-1753
| Decision Date | 09 April 1996 |
| Docket Number | No. 94-1753,94-1753 |
| Parties | 21 Fla. L. Weekly D865 James I. LARK, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
An appeal from the Circuit Court for Bay County. Don T. Sirmons, Judge.
James B. Fensom of Barron, Redding, Hughes, Fite, Bassett & Fensom, P.A., Panama City; Henry M. Coxe, III, Jacksonville; and Michael J. Hauversburk, Panama City, for Appellant.
Robert A. Butterworth, Attorney General and Amelia L. Beisner, Assistant Attorney General, Tallahassee, for Appellee.
ON MOTION FOR REHEARING AND CERTIFICATION
On consideration of appellant's motion for rehearing and certification, and the state's response, we withdraw our opinion of November 3, 1995, and substitute the following opinion in its place. Appellant's motion is otherwise denied.
This is an appeal, following retrial, from convictions for first degree murder and manslaughter. We affirm. We address only one of the issues raised pertaining to the first degree murder conviction.
The basic facts of the case, and circumstances leading to the retrial, are set forth in this court's opinion in Lark v. State, 617 So.2d 782 (Fla. 1st DCA 1993). In his first appeal, appellant contended the State violated his constitutional right to counsel by deliberately blocking his efforts to gather evidence in support of his voluntary intoxication defense, and he sought dismissal of the first degree murder charges on this basis. While noting 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," 617 So.2d at 783, this court determined dismissal of the charges would not have been an appropriate remedy, and did not attempt to decide whether a violation had occurred. The reversal of the first conviction was based in part on the prosecutor's improper comment on appellant's invocation of his constitutional rights.
On remand, prior to the second trial, appellant filed with the trial court a Motion for Remedy for Interference with Right to Counsel and Right to Prepare a Defense. After setting forth the facts surrounding the thwarted defense efforts to obtain an earlier blood alcohol level, psychological testing to determine level of intoxication, access to a psychiatrist to determine state of mind, or examination by an emergency room physician, appellant pointed out that this court, in its decision on appeal, held 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," but stated that dismissal of the charges was not the appropriate remedy. He asserted that the trial court should decide the appropriate remedy, and that possible remedies included striking the premeditation element of the charge (count I as to Carole Lark) or suppressing the state's premeditation evidence collected from the time of the shooting.
In its order on the motion for remedy for interference with right to counsel, the trial court found that the actions of the state constituted a violation of appellant's rights, but denied the relief requested in the motion, stating that "the First District Court of Appeal opinion did not provide such a remedy and neither will this court." The trial court determined that there was available "comparable evidence by other reasonable means to establish his state of mind at the time of the offense." The trial court noted that there were numerous witnesses available to testify as to level of intoxication; the blood alcohol level test was, eventually, taken; "the Court notes the importance of keeping in mind that the Defendant's state of mind or level of intoxication was not what existed at the jail but what existed at the time the offense was committed"; at the original trial, defense experts placed the BAL at the time of the shooting at .35 to .40, thus evidence was available, on retrial, as to the BAL at the time of the shooting; appellant could use the testimony of defense attorney Hughes as to what happened at the jail to explain why no BAL was available before 9:05 PM; expert witnesses were available to testify as to the effect of the BAL at the time of shooting on appellant's ability to function and act.
The trial court also stated that in most cases involving issues of sanity at the time of the offense, mental health experts and other experts are called to give opinions as to sanity at the time of the offense, based on examinations that take place months after the offense, thus the time of the examination by the expert is not crucial to the issue. The court further noted that "the remedy the Defendant is seeking has been granted by the District Court's opinion in that the State will not be permitted to bring out as rebuttal the Defendant's invocation of his constitutional rights when, and if, the defense offers testimony as to the non-availability of an earlier blood sample." The court finally determined that to grant the remedy requested, striking premeditation from count I or suppressing the state's premeditation evidence collected from the time of the...
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