Lowe v. State, 77972

• Decision Date: 23 November 1994
• Docket Number: No. 77972,77972
• Citation: 650 So.2d 969
• Parties: 19 Fla. L. Weekly S621, 20 Fla. L. Weekly S121 Rodney Tyrone LOWE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 969

650 So.2d 969

19 Fla. L. Weekly S621, 20 Fla. L. Weekly S121

Rodney Tyrone LOWE, Appellant, v. STATE of Florida, Appellee.

No. 77972.

Supreme Court of Florida.

Nov. 23, 1994.

Rehearing Denied March 9, 1995.

Richard L. Jorandby, Public Defender, and Margaret Good-Earnest, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., and Sara D. Baggett, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Rodney Tyrone Lowe appeals his conviction of first-degree murder and sentence of death. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm Lowe's conviction and death sentence.

The record reveals the following facts. On the morning of July 3, 1990, Donna Burnell was working as a clerk at the Nu-Pack convenience store in Indian River County when a would-be robber shot her three times with a .32 caliber handgun. Ms. Burnell suffered gunshot wounds to the face, head, and chest and died on the way to the hospital. The killer fled the scene without taking any money from the cash drawer.

During the week following the shooting, investigators received information linking the defendant, Rodney Lowe, to the crime. Lowe was questioned by investigators at the police station and, after speaking to his girlfriend, gave a statement that implicated him in the murder. Following this statement, Lowe was arrested and indicted for first-degree murder and attempted robbery.

At trial, the State presented witnesses who testified that, among other things, Lowe's fingerprint had been found at the scene of the crime, his car was seen leaving the parking lot of the Nu-Pack immediately after the shooting, his gun had been used in the shooting, his time card showed that he was clocked-out from his place of employment at the time of the murder, and Lowe had confessed to a close friend on the day of the shooting. The State also presented, over defense objection, the statement Lowe gave to the police on the day of his arrest. Lowe advanced no witnesses or other evidence in his defense. After closing arguments, the jury returned a verdict finding Lowe guilty of first-degree murder and attempted armed robbery with a firearm as charged.

In the penalty phase, the State introduced a certified copy of Lowe's previous conviction for robbery. Lowe presented testimony in mitigation from a principal at the correctional institution school who testified that Lowe earned his GED and did a good job working as a teacher's aide in her class; that Lowe helped other inmates with their education; that he adapted well to the structured environment of the prison; and that Lowe had not been in any serious trouble during his incarceration pending trial. A pastor of Bible studies at the correctional institution testified that he met Lowe in prison during his previous incarceration and had recommended him to stay at a halfway house, where he stayed for five months after he was released from prison; that Lowe handled responsibility well, was friendly, tried to do his best, and got a job with a lumber company; he concluded that Lowe seemed to have fallen in with a bad crowd after he left the halfway house. Lowe's employer at the lumber company testified that Lowe was an excellent employee, hard-working and reliable, and was liked by the other employees; further, that Lowe gained more responsibility over time and eventually was in charge of the yard when the foreman was not there. Other employees testified that Lowe was a good worker, reliable, and friendly. Lowe's aunt testified concerning his childhood and the fact that his father converted to the Jehovah's Witness faith when Lowe was a teenager. This, in her opinion, caused problems because the children rebelled. She explained that because of this Lowe was unhappy as a teenager and got into trouble as a teenager more serious than normal. Lowe's father was called by the State in rebuttal and explained that the aunt visited only twice a year; he agreed that he was a strict disciplinarian, but that he did not believe his religion caused his son to commit these acts. He stated that he would never speak to his son again. At the conclusion of the penalty phase, the jury, by a nine-to-three vote, recommended the imposition of the death penalty.

The judge followed the jury's recommendation and imposed the death penalty, finding two aggravating circumstances, specifically: (1) the defendant was previously convicted of a felony involving the use or threat of violence to the person; and (2) the capital felony was committed while the defendant was engaged in or was an accomplice in the attempt to commit any robbery. In imposing the death penalty, the trial judge expressly found the mitigating circumstances did not outweigh the aggravating factors. The trial judge also sentenced Lowe to fifteen years' imprisonment for the attempted robbery conviction. In this appeal, Lowe raises ten issues concerning the guilt phase of his trial and seven issues regarding the penalty phase.

Guilt Phase

We find that seven of the guilt phase claims merit discussion.

In his first claim, Lowe asserts that the trial court erred in admitting his confession at trial primarily because the police used his girlfriend as an agent to coerce a confession from him after he had invoked his right to counsel. ¹

The following background facts are pertinent to this claim. One week after the murder, two investigators that had been working on the case, Investigator Kerby and Sergeant Green, learned that Lowe and his girlfriend had gone to the Vero Beach Sheriff's Office to discuss a matter unrelated to the instant case. Already suspecting Lowe's involvement in the murder, Kerby and Green went to the sheriff's office where they separated Lowe and his girlfriend and, after Lowe had waived his Miranda ² rights, began to question him concerning the murder of Donna Burnell. Lowe denied any involvement in the murder and eventually invoked his right to counsel. The interrogation ceased and Lowe was left alone in the interrogation room. Neither Kerby nor Green bothered to put Lowe in contact with an attorney because, as they were to later testify, they did not expect to continue the questioning.

Throughout the interrogation, Lowe's girlfriend had been sitting in a nearby room and had overheard much of the conversation. She became emotional and was moved to another room. After Kerby and Green left Lowe, they went to the room where the girlfriend was waiting and, at her request, explained to her the extent of the evidence they had compiled against Lowe. The girlfriend stated to the investigators that she wanted to speak to Lowe to find out what happened. She also agreed to have her conversation with Lowe recorded. Kerby later testified that, although no one urged the girlfriend to speak to Lowe, he knew there was "a good possibility" that she was going to try to get Lowe to admit his involvement in the murder.

The girlfriend succeeded in convincing Lowe to speak to the police. When Kerby returned to the interrogation room to get the girlfriend, Lowe, without prompting, told Kerby that he wanted to speak with him again. Lowe then gave the investigators a statement in which he confessed that he was the driver of the getaway car involved in the crime but denied any complicity in the murder, which he blamed on one of two alleged accomplices. Lowe's confession to Kerby ended when Lowe once again asked for an attorney.

Based on these facts, Lowe argues that the police incited his girlfriend by telling her the extent of the evidence they had compiled against him and then sent her in to the interrogation room with the hope that she would get Lowe to confess. Lowe relies on Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), in support of his argument that these actions amount to improper police custodial interrogation. We find that the facts in Innis are clearly distinguishable from the circumstances in the instant case. Lowe relies on the following language in that opinion:

A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect ... amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.

Innis, 446 U.S. at 302, 100 S.Ct. at 1690 (footnote omitted). According to Lowe, he was unconstitutionally interrogated by the police through the agency of his girlfriend because the police should have known that the girlfriend would elicit an incriminating response from him under the circumstances of this case.

We reject Lowe's argument because we find that a more recent case from the United States Supreme Court is directly on point with the instant case and it permits this confession to be admitted at trial. In Arizona v. Mauro, 481 U.S. 520, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987), the defendant was arrested for murder and taken to the police station for questioning, which ended after the defendant asked for an attorney. Throughout the interrogation of the defendant, the police were questioning the defendant's wife in a nearby room. The wife suspected her husband of the murder and persisted in speaking with him. After obtaining the approval of a supervisor, and with the expressed knowledge that the defendant would possibly incriminate himself, the police allowed the wife to speak with the defendant in the interrogation room.

The trial court in Mauro refused to suppress a recording made by the police of the defendant's incriminating conversation with his wife and he was subsequently convicted of the murder. On appeal, the Arizona Supreme Court reversed the conviction based on the above quote from Innis and because the police...