Larzelere v. State, 81793

• Citation: 676 So.2d 394
• Decision Date: 28 March 1996
• Docket Number: No. 81793,81793
• Court: United States State Supreme Court of Florida
• Parties: 21 Fla. L. Weekly S147, 21 Fla. L. Weekly S311 Virginia Gail LARZELERE, Appellant, v. STATE of Florida, Appellee.

Page 394

676 So.2d 394

21 Fla. L. Weekly S147, 21 Fla. L. Weekly S311

Virginia Gail LARZELERE, Appellant, v. STATE of Florida, Appellee.

No. 81793.

Supreme Court of Florida.

March 28, 1996.

As Revised July 11, 1996.

Rehearing Denied July 11, 1996.

James B. Gibson, Public Defender and Christopher S. Quarles, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General and Gypsy Bailey, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Virginia Gail Larzelere appeals her conviction of first-degree murder and the trial court's imposition of the death penalty. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons expressed, we affirm the conviction and sentence.

The appellant was married to Norman Larzelere (the victim), a dentist, and she worked as the office manager for his dentistry practice. On March 8, 1991, at approximately one o'clock in the afternoon, a masked gunman came into the victim's dental office, chased the victim, shot him with a shotgun, and fled. The victim died within a short time after being shot. At the time of the shooting, a dental assistant, a patient, and the appellant were in the office.

The appellant and her adult son, Jason Larzelere, ¹ were charged with the victim's murder. The State's theory was that the appellant and Jason conspired to kill the victim to obtain approximately $2 million in life insurance and $1 million in assets. Jason and the appellant were tried separately. The appellant was tried first.

The State presented the following evidence at the appellant's trial. Two men testified that they had affairs with the appellant during her marriage to the victim and that the appellant asked them to help her have her husband killed. Two other witnesses, Kristen Palmieri and Steven Heidle, were given immunity and testified to a number of incriminating actions and statements made by the appellant and Jason regarding the murder. Specifically, their statements reflected that the night before the murder the appellant sent Jason to a storage unit to pick up documents, which included the victim's will and life insurance policies; that the appellant told Jason after the murder, "Don't worry, you'll get your $200,000 for taking care of business"; that the appellant told both witnesses that Jason was the gunman and that he "screwed up ... he was supposed to be there at 12:30, but he was a half hour late, so [the dental assistant] and a patient were there. That's why I had to fake a robbery."; that the appellant directed the two witnesses to dispose of a shotgun and a .45 handgun by having them encase the guns in concrete and dump them into a creek; and, that, in the days following the murder, Jason and the appellant reenacted the murder, with Jason playing the role of the gunman and the appellant playing the role of the victim. With Heidle's assistance, police recovered the guns from the creek but were unable to conclusively determine whether the shotgun was the murder weapon.

Additional testimony reflected that the appellant gave several conflicting versions of the murder to police, with differing descriptions of the gunman and the vehicle in which he left. The patient who was present at the time of the murder heard the victim call out just after he was shot, "Jason, is that you?"

It was further established that over the six-year period preceding the murder, the appellant obtained seven different life insurance policies on the victim and that within the six months preceding his death, the appellant doubled the total amount payable on his life from over $1 million to over $2 million. Although the victim assisted in obtaining these policies, it was shown that the appellant was the dominant motivator in securing the policies. In addition, evidence was introduced to show that the appellant gave false information and made false statements to obtain the policies (in securing the policies she falsely represented to several insurance agents that pre-existing policies had been cancelled, did not exist, or were being replaced by the new policy). Further, soon after the victim's death, the appellant filed a fraudulent will, which left the victim's entire estate to the appellant. The fraudulent will was prepared on the same date one of the largest insurance policies on the victim's life became effective.

In her defense, the appellant presented evidence in an attempt to show that her inconsistent versions of the murder were due to her state of mind due to the distress of having just lost her husband; that the victim assisted in obtaining all of the insurance policies; that the appellant's lovers did not think she was serious about having her husband killed; that Heidle and Palmieri were not believable and perjured themselves; and that Heidle and Palmieri were unable to obtain incriminating statements from the appellant after they had been requested to do so by police.

The jury found the appellant guilty as charged.

No evidence was presented by either side at the penalty phase proceeding. The jury recommended death by a seven-to-five vote. In his sentencing order, the trial judge found the following two factors in aggravation: cold, calculated, and premeditated and committed for financial gain. He found no statutory mitigating factors, but he did find the following nonstatutory mitigating factors: ability to adjust and conform to imprisonment (marginal weight); and the appellant was not the shooter (insignificant weight due to fact that appellant was the mastermind behind the killing). Finding that the two aggravating factors outweighed the relatively minor mitigating evidence, the trial judge sentenced the appellant to death.

Following the appellant's trial, Jason was tried and acquitted of all charges.

GUILT PHASE

Appellant raises twelve issues regarding her conviction phase proceeding. First, she contends that the trial judge improperly limited her impeachment of Stephen Heidle, one of the State's key witnesses. Appellant attempted to introduce the testimony of two witnesses who would have testified as to Heidle's unsavory reputation for truth and veracity. After hearing the proffered testimony of the witnesses, however, the trial judge excluded this testimony on the grounds that the witnesses' knowledge of Heidle was too limited and that the community from which their knowledge arose was too small to establish sufficient reliability. Appellant argues that these were the only witnesses who could testify concerning Heidle's reputation for truthfulness given his limited exposure to others in the months preceding the murder and that the failure to allow this testimony deprived the appellant of a fair trial.

Under section 90.609, Florida Statutes (1991), a party may attack the credibility of a person by introducing character evidence in the form of reputation provided that the evidence relates only to the person's reputation for truthfulness. Section 90.405 governs the type of evidence that may be used to prove reputation. As a predicate to the introduction of such evidence, a foundation must be laid to prove that the witness testifying as to reputation is aware of the person's general reputation for truthfulness in the community. Charles W. Ehrhardt, Florida Evidence § 405.1 (1995 ed). Essentially, it must be established that the community from which the reputation testimony is drawn is sufficiently broad to provide the witness with adequate knowledge to give a reliable assessment. This assessment must be based on more than "mere personal opinion, fleeting encounters, or rumor." Rogers v. State, 511 So.2d 526, 530 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988). Further, reputation evidence "must be based on discussions among a broad group of people so that it accurately reflects the person's character, rather than the biased opinions or comments of ... a narrow segment of the community." Ehrhardt, supra, § 405.1 at 197 (footnote omitted).

In this case, the proffered testimony of the two proposed witnesses indicated that they both knew Heidle from a very limited community segment and for a very limited period of time. They both knew Heidle through a small number of individuals from his association at gay bars. Moreover, each of the witnesses had known Heidle for less than four months before the murder occurred. After reviewing the proffered testimony, the trial judge declined to admit this reputation evidence based on the limited amount of time the witnesses had known Heidle, the limited number of people from whom this reputation evidence was gathered, the extremely narrow section of the community from which the witnesses knew Heidle, and the fact that the testimony would be based largely on personal opinion and rumor. Under these circumstances, we cannot say that the trial judge abused his discretion in refusing to admit this testimony. See Heath v. State, 648 So.2d 660 (Fla.1994) (trial court has wide discretion in ruling on the admissibility of evidence and its rulings will not be disturbed absent an abuse of discretion), cert. denied, --- U.S. ----, 115 S.Ct. 2618, 132 L.Ed.2d 860 (1995); Welty v. State, 402 So.2d 1159 (Fla.1981) (same); Wisinski v. State, 508 So.2d 504 (Fla. 4th DCA) (trial court did not abuse its discretion in refusing to admit reputation testimony given the small number of people, the limited cross-section, and the relatively short period of time on which the reputation testimony was based), review denied, 518 So.2d 1279 (Fla.1987); Gamble v. State, 492 So.2d 1132 (Fla. 5th DCA 1986) (trial judge has wide discretion in admitting or excluding reputation testimony; one learns of another's general reputation in a community over a period of time and through miscellaneous contact with many people).

Even were we to find that the trial judge abused his discretion in excluding this testimony, we would find such error to be harmless. Defense counsel conducted an...