Larkins v. State, 78866

• Decision Date: 11 May 1995
• Docket Number: No. 78866,78866
• Citation: 655 So.2d 95
• Parties: 20 Fla. L. Weekly S228 Robert LARKINS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 95

655 So.2d 95

20 Fla. L. Weekly S228

Robert LARKINS, Appellant, v. STATE of Florida, Appellee.

No. 78866.

Supreme Court of Florida.

May 11, 1995.

Dwight M. Wells, Tampa, for appellant.

Robert A. Butterworth, Atty. Gen. and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Robert Larkins appeals his convictions for robbery and first-degree murder and his sentence of death. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const. For the reasons expressed below, we affirm Larkins' convictions, but reverse and remand for resentencing by the trial court with instructions consistent with this opinion with regard to the sentencing order.

FACTS

The facts set out herein are based on the evidence presented at trial. On August 30, 1994, the body of Roberta Faith Nicolas was found lying face down on the floor of a Circle K store. Debbie Santos, a customer in the store that day, testified that she was in the store with her baby and her young son when she saw a man with tape on his face walk in. Santos knew this man and identified him as Robert Larkins. She testified that he had tape on his nose, forehead, and each side of his face. He pointed a rifle at Ms. Nicolas, the store clerk, demanded money, and then shot her. Larkins then went over to the counter where the cash register was located, and backed out of the store. At some point during this episode, Santos' baby began to cry.

Another customer, Ruben Hernandez, was called by the defense and testified that the same man pointed a rifle at him and demanded money. The man's whole face was covered with tape. Hernandez responded that he had no money. The robber then demanded that the store clerk open the cash register, but it did not open, and the robber told the clerk to step away from the register. She did. When the clerk ducked down, the robber grabbed her by the arm and swung her to the side by some soda machines. Then he fired two shots at her.

When investigators arrived, they found the victim's body lying on the floor. The police also recovered a shell casing from a bullet for a .22 caliber rifle. Subsequently, a .22 caliber rifle was found on a nearby street next to a vacant house and adjacent to Larkins' home. Thomas Gibson testified that on the night of the robbery he had given Larkins this same .22 caliber rifle to hold for him. The spent bullet from the victim's body was identified by an expert as having been fired from this rifle. Larkins did not return the rifle to Gibson. In an alley behind the store, the police found a trail of dimes leading away in a northerly direction, and the store's cash register was found some 60 yards from the store. Ronnie and Charles Baker also saw Larkins with a rifle the night of the robbery. A jail inmate who shared a cell with Larkins testified that Larkins told him of committing the robbery and shooting.

The jury found Larkins guilty of robbery and first-degree murder. At the penalty phase, the State presented evidence that Larkins had previously been convicted of manslaughter and assault with intent to kill. Larkins presented the testimony of Dr. Henry L. Dee, a clinical psychologist, relating Larkins' personal history including substantial mental problems. He testified that Larkins suffers from organic brain damage and that he has a substantial memory impairment. Dr. Dee expressed the opinion that Larkins was under the influence of extreme emotional disturbance at the time the robbery occurred. He also stated that due to Larkins' brain damage, his ability to appreciate the criminality of his conduct "could be affected." The jury recommended that the death penalty be imposed by a 10-2 vote.

The trial court followed the jury's recommendation. In its sentencing order, the trial

                court found two statutory aggravating circumstances:  (1) the defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person;  and (2) the capital felony was committed for pecuniary gain. 1  The trial court acknowledged the testimony of Dr. Dee but found no statutory or non-statutory mitigating circumstances
                

ISSUES AS TO GUILT

As his first issue, Larkins sets out a broad, general objection to the jury selection process. However, Larkins concedes that any potential error is procedurally barred because no adequate objections were made at trial. Larkins requests that this Court either explicitly hold that such issues may be the proper subject of a motion under Florida Rule of Criminal Procedure 3.850, or remand the case for an evidentiary hearing. We reject this request. On appeal we are limited to considering alleged errors properly preserved and to certain fundamental claims of error. No such claims are raised here.

As his second point, Larkins asserts that there was insufficient evidence to warrant his conviction for armed robbery and murder. It is well-settled that where a conviction rests on purely circumstantial evidence, a conviction will not be sustained "unless the evidence is inconsistent with any reasonable hypothesis of innocence." State v. Law, 559 So.2d 187, 188 (Fla.1989). "[W]here there is substantial competent evidence to support the jury verdict" this Court will not reverse. Id. (citing Heiney v. State, 447 So.2d 210 (Fla.1984), cert. denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984)). Here, there was direct evidence of Larkins' guilt, including eyewitness testimony. We have already discussed much of that evidence. Our review of the record reflects competent substantial evidence to support Larkins' convictions.

Third, Larkins argues that the trial court committed fundamental error when it failed to declare a mistrial. The trial court initially permitted the introduction of a pair of surgical gloves into evidence over Larkins' relevancy objection, and later ordered the gloves excluded from evidence when the State was unable to time them to the crime or Larkins.

While we agree that the initial introduction of the surgical gloves may have been error, we do not believe that the trial court was obligated to declare a mistrial on its own motion when it later granted the request to remove the gloves from evidence. Rather, at the time the gloves were withdrawn, defense counsel had an obligation to request and move for a mistrial if he believed such drastic relief was necessary. See Clark v. State, 363 So.2d 331 (Fla.1978). Furthermore, as we expressly stated in Clark, "if the defendant ... does not move for a mistrial, he cannot, after trial, in the event he is convicted, object for the first time on appeal." Id. at 335. Larkins concedes that he did not seek a mistrial at trial. The trial court granted the relief sought by Larkins at trial and instructed the jury to disregard this evidence from their deliberations. For this reason, we find no error in the trial court's failing to act on its own to declare a mistrial.

Fourth, Larkins argues that the State was improperly allowed to introduce a gruesome photograph depicting the victim after she had been turned over lying in a pool of blood wearing her bloody smock. In admitting photographs, the primary focus should be relevancy. Wyatt v. State, 641 So.2d 355 (Fla.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1372, 131 L.Ed.2d 227 (1995); Thompson v. State, 565 So.2d 1311, 1314 (Fla.1990); Sec. 90.402, Fla.Stat. (1993). We have upheld the admission of photographs to explain a medical examiner's testimony, to show the manner of death, the location of wounds, and the identity of the victim. See, e.g., Jackson v. State, 545 So.2d 260 (Fla.1989) (admission of photographs depicting victim's charred remains is within discretion of trial court).

While a trial court should exercise caution in admitting particularly gruesome photographs, and in limiting their numbers, such photographs may still be relevant. Here, the record supports the State's assertion that the photograph was relevant to Next, Larkins argues that it was error to admit the victim's smock into evidence. Again, a determination of whether a certain piece of evidence is admissible should be made in the context of whether the evidence meets the relevancy test. Adams v. State, 412 So.2d 850 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982). Here the record reflects that the smock was used to explain the presence of a hole in the smock consistent with the entry of a small caliber bullet, as well as the entry into and track of the bullet through the victim's body. We find no abuse of discretion.

assist the medical examiner in explaining the cause of death to the jury, as well as how and where the victim died. We conclude that the trial court did not abuse its discretion in admitting the photograph into evidence.

On his fifth point, Larkins argues that it was reversible error for the trial court to deny him the right to impeach two State witnesses by questioning them about pending charges. In Torres-Arboledo v. State, 524 So.2d 403, 408 (Fla.), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988), we said that "when charges are pending against a prosecution witness at the time he testifies, the defense is entitled to bring this fact to the jury's attention to show bias, motive or self-interest." Consistent with Torres-Arboledo, we agree that Larkins should have been permitted to inquire as to Charles and Ronnie Baker's pending charges. The question then becomes whether the error was harmless.

The strict standard announced in State v. DiGuilio, 491 So.2d 1129 (Fla.1986), is whether there is a reasonable possibility that the error complained of affected the verdict. Harmless error, as DiGuilio cogently pointed out, is not "a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence." Id. at 1139.

To evaluate the harmfulness of the error, we must first examine all of the evidence and consider the strength of the case against Larkins. For...