LeCroy v. State, 69484

• Decision Date: 20 October 1988
• Docket Number: No. 69484,69484
• Citation: 13 Fla. L. Weekly 628,533 So.2d 750
• Parties: , 13 Fla. L. Weekly 628 Cleo Douglas LeCROY, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
• Court: Florida Supreme Court

Page 750

533 So.2d 750

57 USLW 2332, 13 Fla. L. Weekly 628

Cleo Douglas LeCROY, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.

No. 69484.

Supreme Court of Florida.

Oct. 20, 1988.

Rehearing Denied Dec. 15, 1988.

Charles W. Musgrove, West Palm Beach, for appellant/cross-appellee.

Robert A. Butterworth, Atty. Gen. and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee/cross-appellant.

SHAW, Justice.

Cleo Douglas LeCroy appeals his convictions on two counts of first-degree murder and two counts of robbery with a firearm. He also appeals a sentence of death on one count of first-degree murder and sentences of thirty-years' imprisonment on each robbery count with a minimum mandatory of three years. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

The victims, John and Gail Hardeman, husband and wife, failed to return home from camping and hunting in a wild area of Palm Beach County on 4 January 1981. An intensive search was initiated. Their bodies were not found until 11 January 1981. John had died from a single shotgun slug to the head. His wallet and a .30-06 hunting rifle were missing. Gail's body was found approximately 400 feet away. A .38 revolver belonging to her was missing, her trousers were unzipped and her brassiere was partially dislocated. She died from three small caliber gunshots to the chest, head and neck. Appellant Cleo, his brother Jon, and their parents, who were camping nearby during the weekend of the disappearance, assisted in the search. During the search, appellant Cleo and Jon professed to be great trackers who could find the bodies if the police would let them search alone and Cleo speculated to search members on various scenarios concerning what happened to the victims. In addition, Cleo discovered a backpack and cushions belonging to the victims which could not be seen by other searchers present with him. The first body, Gail's, was discovered by Jon, in the company of police officers. Immediately after the discovery of the bodies, Cleo and Jon were questioned. Appellant Cleo received and waived his Miranda ¹ rights and gave two inculpatory statements to the police. In his first statement, he claimed to have killed John by accident with his shotgun while shooting at a hog. According to Cleo, the "slug" ricochetted around. He claimed to have killed Gail, without knowing who she was, when she burst on the scene. During the course of the statement, he changed the story to say that Gail shot at him first and, also, that he killed her to eliminate a witness. He denied going near or touching the bodies and claimed to have left immediately without taking the victims' .30-06 rifle and .38 revolver. Cleo said he told his brother Jon about the killings and where the bodies were that same day, but denied Jon was present at, or had anything to do with, the killings.

After giving this first statement, Cleo almost immediately asked to speak to a second officer to correct his earlier story. He again received and waived his Miranda rights. This time he admitted taking the victim's guns and said he unzipped Gail's trousers to check for a pulse but denied any sexual molestation. He said he shot her three times with his .22 caliber pistol when she came up yelling after he shot John. He again said he told his brother Jon about the killings and the approximate location of the bodies on the day of the killings, and again on the day the bodies were discovered, but denied that Jon had anything to do with the crimes. Cleo said he first hid the guns near the campsite, later retrieved them, and gave the rifle to a friend and the revolver to Jon.

Cleo's girlfriend corroborated his statements. She said that Cleo told her on 3 January about taking a gun from a hunter at the campsite that day and returning it before it was missed. She testified that she arrived at the campsite during the morning of the 4th and that Cleo was out hunting and Jon was in camp. When Cleo returned that afternoon, he told her of killing John and, later, of killing Gail. The details of the killings were consistent with Cleo's statements to the police and the physical evidence from the autopsies. She said Cleo retrieved the rifle and revolver from their hiding place and later sold the rifle to an acquaintance. The police retrieved the rifle from the acquaintance who confirmed he bought the rifle from Cleo during the week following the killings and that he had earlier, well prior to the killings, discussed buying a .30-06 from Cleo. Cleo also told the girlfriend that he took John's wallet and money. She also testified that Cleo said he had blood on his pants and burned the pants. She testified that Cleo later told her he was going to mutilate the barrel of his .22 to prevent identification and that he wanted to cut the bullets out of the bodies to prevent identification. Weapons experts later testified that the barrel had been mutilated. There was also testimony from a jailmate of Cleo's that Cleo admitted the killings. Contrary to Cleo's statements, the medical examiner testified that the shots which killed Gail were fired at point blank range and in two of them the gun was probably in contact with her body. Again, contrary to Cleo's statements that he killed Gail when she burst on the scene, and did not move the bodies, the two bodies were found approximately 400 feet apart, separated by brush and other growth which prevented visual sighting between the two scenes.

Appellant raises eight issues challenging the convictions and sentences. He first argues that we should revisit our earlier ruling in State v. LeCroy, 461 So.2d 88 (Fla.1984), cert. denied, 473 U.S. 907, 105 S.Ct. 3532, 87 L.Ed.2d 656 (1985), where we held that his second statement to the police was admissible. We decline to do so. Moreover, having now received and reviewed the full record of the trial, it is clear beyond a reasonable doubt that admission of this second statement, even if error, did not impact on the jury verdict. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The second statement attempted to correct certain patently false details given by Cleo in his first statement, e.g., that he had not taken the victims' guns and had not touched Gail after the killing. In a variation on this issue, appellant now argues that the playing to the jury of the taped confession containing the advice that the statement was being taken to refresh his memory in the event he was called on to testify at trial was a comment on the exercise of his right to remain silent at trial. We do not agree that this pretrial refresher advice is fairly susceptible of being interpreted as a comment on the failure to testify at trial. State v. Kinchen, 490 So.2d 21 (Fla.1985). We also note that appellant declined the state's offer to excise this portion of the tape because appellant believed that the jury should hear it in order to weigh voluntariness.

Appellant also argues that we should revisit an issue resolved by the district court below in the earlier interlocutory appeal. In State v. LeCroy, 435 So.2d 354 (Fla. 4th DCA 1983), the district court held that the charge on the robbery counts was sufficient to apprise appellant of the nature of the crimes charged and did not mislead or embarrass appellant in the preparation of a defense. We decline to revisit this issue which became the law of the case with the holding below. Preston v. State, 444 So.2d 939 (Fla.1984).

Appellant Cleo and brother Jon were indicted as codefendants in these crimes. Prior to trial, both defendants moved for severance and jointly represented to the court that Cleo wished to testify in exculpation at Jon's trial if it were held separately, but could not do so if they were jointly tried. The court granted a severance and Jon was tried following the trial here. However, at his own trial, Cleo attempted to develop a defense which placed the responsibility for the crimes, in whole or part, on Jon. ² He now argues that the trial court erred in refusing to admit hearsay evidence that Jon told others that he had seen dead bodies before and was the last to see the victims alive which, appellant urges, is a statement against interest within the meaning of section 90.804(2)(c), Florida Statutes (1979). Concerning the statement that Jon saw the victims last, this is based on the testimony of a witness that Jon said he saw the victims at 11 a.m. the day of the murder and the testimony of another witness that Cleo told him he last saw the victims at approximately 10:30 a.m. Thus, appellant reasons, Jon made an admission against interest by saying he saw the victims after Cleo. We do not agree that a hearsay statement by Jon that he saw the victims at 11 a.m. is an admission against interest. Another witness testified he saw Cleo with the victims around 10 a.m. and Cleo admitted in his statement to the police that he had conversed with the victims that morning, for approximately twenty minutes, that they had separated, and that the killings occurred later after a period of hunting. As to Jon saying that he had seen dead bodies before, the statement is meaningless without further development and could only have been developed by calling Jon as a witness. The state points out that had this been done, the state would have been able to elicit Jon's statement to the police that he had seen the victims bodies shortly after Cleo killed them. This would have been consistent with Cleo's statements to the police that he told Jon of the killings, and the approximate location of the bodies, shortly after the crimes. We see no error. Moreover, as the state argues, even if it was error, the error was clearly harmless. Evidence showing that Jon had also been indicted and had some role in either the crimes or in attempting to conceal the crimes was given to the jury. ³ We do not see how this ambiguous hearsay could have affected the verdict.

Relying on State v. Hegstrom, 401 So.2d 1343 (Fla.198...