Lawrence v. State, 82256

• Citation: 691 So.2d 1068
• Decision Date: 13 March 1997
• Docket Number: No. 82256,82256
• Parties: 22 Fla. L. Weekly S125 Michael Alan LAWRENCE, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 1068

691 So.2d 1068

22 Fla. L. Weekly S125

Michael Alan LAWRENCE, Appellant, v. STATE of Florida, Appellee.

No. 82256.

Supreme Court of Florida.

March 13, 1997.

Rehearing Denied April 18, 1997.

Nancy A. Daniels, Public Defender and Nada M. Carey, Assistant Public Defender, Second Judicial Circuit, Tallahassee, for Appellant.

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

PER CURIAM.

Michael Alan Lawrence appeals the death sentence imposed upon him after remand. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution, and we affirm Lawrence's sentence.

Lawrence was convicted for the first-degree murder, kidnapping, and armed robbery of a convenience store clerk. ¹ On appeal, this Court affirmed Lawrence's conviction for first-degree murder. Lawrence v. State, 614 So.2d 1092, 1096 (Fla.), cert. denied, 510 U.S. 833, 114 S.Ct. 107, 126 L.Ed.2d 73 (1993). The Court, however, vacated Lawrence's kidnaping conviction because it determined the evidence presented did not support the conviction. Id. The Court also vacated Lawrence's sentence of death. Id. In reviewing the sentence, the Court found inapplicable and struck four aggravators. ² Id. The Court then determined that because of the peculiar facts of this case, it could not find the trial court's error harmless. Id. The Court noted that the State introduced similar fact evidence of other crimes during the guilt phase and then relied on its guilt-phase evidence in the penalty phase. Although the Court determined the introduction of the similar fact evidence was harmless in the guilt phase, it could not say the State demonstrated beyond a reasonable doubt that the similar fact evidence did not affect the penalty phase. Id. at 1096-97.

On remand, the jury unanimously recommended death. The trial judge found three aggravating factors ³ and rejected the statutory mental mitigators Lawrence asked the court to consider. ⁴ Although Lawrence did not argue the existence of any specific nonstatutory mitigating factors, the trial judge considered whether the same arguments defense counsel made in support of the statutory mental mitigators supported a finding of nonstatutory mitigation. After reconsidering the evidence, however, the trial court found that no nonstatutory mitigation existed and alternatively that even if it did, the mitigation was not entitled to substantial weight. The judge then determined that the aggravating factors outweighed the mitigating factors and sentenced Lawrence to death.

Lawrence raises eight issues on appeal: (1) the trial judge failed to instruct the sentencing jury as to the meaning of the term reasonable doubt; (2) the trial judge erroneously permitted the introduction of inadmissible collateral crime evidence; (3) the trial judge erroneously permitted the State to read the trial testimony of Sonya Gardner after finding her unavailable to testify; (4) Lawrence's waiver of his right to present mitigating evidence was not knowing, intelligent, and voluntary; (5) the prosecutor erroneously exploited the jurors' religious beliefs; (6) the evidence did not support the pecuniary-gain aggravator; (7) the judge should have considered Lawrence's cocaine use on the night of the murder as a mitigating factor; and (8) section 921.141(7), Florida Statutes (1993), allowing for the introduction of victim-impact evidence is unconstitutional.

We find that the first and final issues Lawrence raises require only minimal consideration in light of several recent decisions from this Court. In Archer v. State, 673 So.2d 17 (Fla.), cert. denied, --- U.S. ----, 117 S.Ct. 197, 136 L.Ed.2d 134 (1996), this Court addressed the first issue Lawrence now raises. In Archer, as in this case, the trial judge gave the resentencing jury the standard penalty-phase instructions. An instruction stated that the State has the burden of proving each aggravator beyond a reasonable doubt. Another instruction stated that mitigating factors need not be proven beyond a reasonable doubt. Although Archer did not object to the standard jury instructions at trial, he argued on appeal that the trial judge erred in failing to provide the resentencing jury a definition of reasonable doubt. We held that failure to define reasonable doubt to the jury in the sentencing phase of a capital trial is not fundamental error. Id. at 20. Consequently, a party challenging the standard penalty-phase instructions on the basis that they do not define reasonable doubt must do so by means of a contemporaneous objection. Because Lawrence, like Archer, failed to timely object to the standard jury instructions given by the trial judge, we reject his claim. ⁵

Likewise, we reject Lawrence's final claim, based on our recent decision in Windom v. State, 656 So.2d 432 (Fla.), cert. denied, --- U.S. ----, 116 S.Ct. 571, 133 L.Ed.2d 495 (1995). In his appeal, Lawrence challenges section 921.141(7), Florida Statutes (1993), on several constitutional bases. At trial, however, he objected to the statute on only a single basis. ⁶ He argued that victim-impact evidence was not admissible in his resentencing because it was not admissible at the time of the original sentencing proceeding. In Windom, we upheld section 921.141(7) against a similar ex post facto challenge. We found that the statute was procedural and thus did not violate any prohibition against ex post facto laws. Windom, 656 So.2d at 439; see also Allen v. State, 662 So.2d 323 (Fla.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1326, 134 L.Ed.2d 477 (1996).

In his second claim, Lawrence alleges that the trial judge admitted irrelevant evidence of a collateral crime. We disagree with Lawrence's representation of the State's evidence. In particular, we do not find that the testimony which Lawrence challenges referred to a collateral crime.

At trial, the prosecutor asked a witness whether Lawrence said anything to her in September 1986 about a plan to commit a robbery. After the trial judge overruled defense counsel's objection to the question, the witness responded, "Some type of plan to get money." The prosecutor then asked the witness whether Lawrence said anything to her around the first week of October 1986 about an attempted Majik Market robbery. Lawrence objected and moved for a mistrial. The trial judge overruled the objection, and the witness responded: "He said that he--from what I remember, that he did go across the street in an attempt to rob it, but he couldn't do it after looking at the clerk."

Lawrence claims the witness's statements referred to a separate attempted robbery and that, consequently, it was not relevant to any aggravating factor in this case. However, on the basis of the trial record, it can be inferred that the testimony referred to a statement Lawrence made about the instant crime and that Lawrence, in making the statement, simply was not truthful as to his completing the robbery. Based upon the record, the testimony was therefore relevant to the pecuniary-gain aggravator. The trial judge therefore did not abuse his discretion in admitting this testimony.

As his third issue, Lawrence contends that because the State did not show that Sonya Gardner was unavailable pursuant to section 90.804, Florida Statutes (1993), the trial judge erred in allowing the State to read her guilt-phase testimony to the resentencing jury. Specifically, he contends that allowing the State to read the trial testimony of a witness who was available to testify violated his right to confrontation.

The trial judge initially agreed that Gardner was not unavailable. When the State first requested that Gardner's former testimony be read to the jury, the trial judge denied the request. The trial judge later, over objection by defense counsel, decided the testimony should be read to the jury because Gardner, who was with Lawrence the night of the murder, might provide evidence relevant to several mitigating circumstances.

We agree that the State did not demonstrate that Gardner was unavailable. The investigator hired to locate Gardner determined that she was camping somewhere in Blackwater State Park in Santa Rosa County. He testified that he spoke with Gardner by telephone and that she initially agreed to appear. On the day she was scheduled to appear, however, she called to inform the investigator that she would not be present. Gardner's boyfriend later contacted the investigator by phone and told him that Gardner would come only if forced. The boyfriend also offered to provide the investigator with directions to Gardner's location, but the investigator did not obtain those directions. Instead, the investigator told Gardner's boyfriend he would call back the next day to tell Gardner if there was any way the State could get around her being present. The investigator did not call the boyfriend back before appearing at Lawrence's resentencing proceeding. Due to the investigator's failure to obtain the directions offered by Gardner's boyfriend, a subpoena was never issued to Gardner's current location. Based on these facts, we find that the State's efforts to procure Gardner as a witness were not sufficient to establish Gardner's unavailability, as that term is defined by section 90.804(1), Florida Statutes (1993).

Although we find the trial judge erred in his determination as to Gardner's unavailability, we do not find that the error was harmful in this proceeding. Because Gardner was not unavailable her testimony amounted to hearsay. Lawrence's objection to Gardner's prior testimony was thus ultimately a hearsay objection. Section 921.141(1), Florida Statutes (1993), states that in the penalty proceeding

evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsect...