Loren v. State, BD-485

• Decision Date: 15 December 1987
• Docket Number: No. BD-485,BD-485
• Citation: 518 So.2d 342,12 Fla. L. Weekly 2870
• Parties: 12 Fla. L. Weekly 2870 Judith Nichole LOREN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 342

518 So.2d 342

12 Fla. L. Weekly 2870

Judith Nichole LOREN, Appellant, v. STATE of Florida, Appellee.

No. BD-485.

District Court of Appeal of Florida,

First District.

Dec. 15, 1987.

Rehearing Denied Jan. 29, 1988.

Ronald W. Johnson of Kinsey, Myrick, Troxel, Johnson & Walborsky, Pensacola, for appellant.

Jim Smith, Atty. Gen., Royall P. Terry, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

SMITH, Chief Judge.

Appellant Loren was indicted on a charge of first degree murder of her husband, Kenneth Ray (Buddy) Cummings, along with codefendants Wesley Allen Briggs and Dean Charles Wilson. At appellant's separate jury trial, Briggs testified that he shot and killed the victim at the instance and request of appellant, who anticipated receiving double indemnity insurance benefits of $200,000 on Cummings' life. Appellant was convicted by the jury of first degree murder, and was sentenced in accordance with the jury's recommendation to life imprisonment without possibility of parole for twenty-five (25) years.

On appeal, the sufficiency of the evidence of guilt is not challenged. Instead, appellant seeks reversal and a new trial based upon her claims that various rulings of the trial court resulted in denial of her constitutional right to a fair trial. She asserts, particularly, that the trial court's denial of her motions for continuance denied her effective assistance of counsel. She also asserts as grounds for reversal rulings of the trial court pertaining to alleged discovery or Richardson violations, and the court's ruling allowing the jury, during the playing of audio and video tapes in the courtroom at trial, to use and refer to a typed transcript of these tapes. The tapes depicted a late-night motel room meeting between appellant and codefendant Briggs, wherein, among other things, Briggs sought and obtained from appellant a promise of monetary assistance to aid him in absconding to avoid arrest for the murder. Having carefully considered each of the points and arguments raised by appellant, and having reviewed the transcript of the trial proceedings in its entirety, we conclude that no reversible error has been presented.

Because the points raised on appeal must be viewed against the backdrop of the events leading up to the indictment and trial, and the facts as revealed during the trial itself, a brief factual recitation is necessary.

That codefendant Briggs shot and killed Cummings on October 14, 1983, at Cummings' home in Chipley, Florida, was proved by overwhelming evidence, and was conceded by defense counsel at the trial. The jury heard directly, through the testimony of Briggs, of his romantic involvement with appellant beginning shortly after her separation from the victim in the summer of 1983, and of appellant's participation with Briggs in a scheme for the murder of the victim in order to receive the insurance proceeds. After obtaining money from appellant, Briggs bought a gun from an individual in Pensacola, where he and appellant both resided at the time of the shooting. On October 14, 1983, Briggs and codefendant Dean Wilson bought a box of Blazer ammunition from a gun shop in Pensacola, and both drove in a rented automobile to Cummings' home in Chipley, using directions given by appellant.

In furtherance of the planned killing, Briggs had previously devised a plan for gaining access to Cummings' home by making telephone calls (using a false name) to set up an appointment to look at Cummings' home, which appellant had advised Briggs was for sale. These telephone messages were recorded on the message recording device in Cummings' home, a circumstance which later proved to be of crucial importance in linking Briggs to the homicide. Although the plan called for Cummings to be overpowered and drowned in the pond behind his house where he often swam--according to information furnished by appellant to Briggs--thus giving the appearance of an accident, the plan went awry when codefendant Wilson failed to position himself so as to assist in carrying out this method of disposing of Cummings. Consequently, Briggs, in accordance with his alternative plan, shot and killed Cummings on the spot with a single bullet to the head.

The jury also heard testimony concerning the issuance of the insurance policy on Cummings' life, which named appellant as the owner and beneficiary, and of her admitted payment of the renewal premium in July 1983, even though she and Cummings were at the time separated under strained circumstances, including Cummings' threats to kill her.

Further, the jury heard testimony from Briggs, from appellant herself, and from witnesses Darrell Senn, James Stone, Steve Carden, and Steve Simons, that she hated Cummings and wanted him dead, particularly after learning in August 1983 of Cummings' attempted sexual molestation of her daughter. Steve Carden testified that appellant offered him money ($5,000.00) to kill Cummings.

Appellant denied that she arranged for Briggs to kill her husband in return for a percentage of the insurance proceeds. She admitted, however, talking to Stone, Carden and Simons about wanting Cummings dead, about being extremely angry with and hating Cummings, and of various ways in which Cummings' death might occur, such as by drowning, or another "accident" of some kind, or by being bitten by poisonous snakes. Although she denied ever asking any of them to kill Cummings, appellant admitted that she "might have mentioned money" in talking with them, but they didn't take it seriously, and neither was she serious. Appellant further stated that she didn't want them to kill "Buddy" (Cummings), but that she just wanted something to happen to him.

Briggs testified that appellant knew the day after it happened that he had killed Cummings. A witness, Darrell Senn, a boyfriend of appellant's daughter, who resided in appellant's home in Pensacola at one time, testified that appellant told him about Cummings' impending death, stating: "They're going to get him tomorrow night." According to Senn, appellant told him she would have an alibi, since she would be out with a preacher that night; and that she further told him two mornings later: "They got him. Buddy is dead."

Appellant denied that Briggs told her he was responsible for the death until New Year's Day, 1984, and she testified that he also later told her that he had not done it, but again told her after that that he had. Nevertheless, it is not disputed that appellant and Briggs maintained a relationship after the killing, though not seeing each other as frequently as before. Then, at the end of November 1983, appellant moved to Tallahassee, and from that time until the arrest of both in May 1984, they maintained contact by telephone.

It is also undisputed that after the shooting, appellant gave her gun to Darrell Senn, instructing him to bury it. She testified at the trial that she later learned that Senn had dug it up again, so she then gave the gun to Briggs, telling him to get rid of it. Appellant explained this action by stating that she did not know what gun Cummings had been killed with, and she had denied to the police that she had a gun.

At no time did appellant inform the police that Briggs had admitted the killing, although she was fully aware that police and investigators were making inquiries concerning her and Briggs. At some undisclosed time, prior to her arrest, appellant secured the services of her present counsel, with whom she discussed information pertaining to the ongoing investigation into the death of her husband. During this time, her attorney shared with her the information, furnished to him by the prosecutor's office, that the gun used by Briggs had been found in the waters of Escambia Bay, where it had been thrown by Wilson and Briggs on their way back to Pensacola after the shooting. Appellant was also told by her attorney that the authorities could do nothing unless they found "the person who pulled the trigger."

On May 21, 1984, investigators went to Briggs' home in Pensacola, played the recorded telephone message from Cummings' home telephone answering machine, and Briggs confessed to the crime. Almost immediately, law enforcement officers arranged, with Briggs' consent, for Briggs to induce appellant to meet with him in a motel room in Tallahassee in which the officers would install audio and video recording devices, with electronic monitoring equipment set up in an adjoining room. Pursuant to this arrangement, Briggs telephoned appellant at her Tallahassee apartment at 1:30 or 2:00 A.M. on May 22, 1984, and told her that he needed to talk with her in his motel room at the Ramada Inn. Appellant complied, went to the room, and the conversation later presented to the jury through audio and video tape recordings occurred.

Turning first to the alleged error in the trial court's refusal to grant a continuance, both before and during the trial, we conclude that appellant's attorney's contention that these rulings forced him to proceed with trial without having had the opportunity for adequate preparation will not bear close examination. As noted above, appellant had engaged the services of her trial counsel in advance of her arrest, was represented on the date of her arrest, at her arraignment, and throughout all subsequent proceedings. Appellant, as previously noted, was arrested on May 22, 1984. She was indicted on June 5, 1984. Her demand for discovery was filed on June 14, 1984, and the state filed a response on June 28, 1984. Discovery by appellant's attorney was not commenced until October 25, 1984, with only ten days remaining to the scheduled trial date of November 5, 1984, even though the state's response to discovery listed 41 witnesses, including the two codefendants, and also disclosed the existence of statements of the defendants, including electronic surveillance of conversations to which appellant was a party. No justification has been shown for defense...