Mann v. State

• Decision Date: 25 April 2001
• Docket Number: No. 3D99-1221.,3D99-1221.
• Citation: 787 So.2d 130
• Parties: Andrew Henry MANN, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

787 So.2d 130

Andrew Henry MANN, Appellant, v. The STATE of Florida, Appellee.

No. 3D99-1221.

District Court of Appeal of Florida, Third District.

April 25, 2001.

Bennett H. Brummer, Public Defender, and Rosa C. Figarola, and Manuel Alvarez, Assistant Public Defenders, for appellant.

Robert A. Butterworth, Attorney General and Jill K. Traina, Assistant Attorney General, for appellee.

Before COPE, GERSTEN, and GREEN, JJ.

GREEN, J.

Andrew Henry Mann appeals his conviction and sentence for first degree arson entered after a jury trial. We affirm for the reasons which follow.

Mann was charged with starting a fire in his jail cell at the South Florida Reception Center. At the time, Mann was an inmate serving a seventy month sentence. On the morning of the fire, Mann had been ordered to a confinement cell for arguing with and threatening a corrections officer.

Before Mann was taken to the cell, it was searched and cleaned to ensure that it contained no contraband materials (i.e. matches, clothing, bed sheets, paper cups, magazines, etc.). The cell was approximately four feet wide by eight feet long, and contained a bunk bed, sink, and a toilet. It had a four-by-four inch glass window in the steel door, and a latch through which inmates receive food and medication.

Mann's clothes were thoroughly inspected and he was strip searched to ensure that he was not hiding any contraband, and none was found. He was then taken to the cell where he, along with Officer Holder, inventoried the cell's contents. Mann claimed that the mattress on his assigned top bunk was torn, and that he removed it from the bunk and placed it on the floor by the door to be exchanged for another mattress. Mann further stated that he declined to sign the cell inspection sheet detailing the contents and condition of the cell. At trial, however, a signature which purported to be Mann's, was on the inspection sheet.¹ Further, the cell inspection sheet indicated that the mattress was worn rather than torn as claimed by Mann.

Approximately thirty minutes after Mann was placed in the cell, Holder was performing routine security checks of the dorm when he smelled smoke. He looked through the glass window of Mann's cell and saw Mann standing by the mattress that had been placed on the floor. The mattress was on fire. Holder believed that Mann was feeding the fire because he saw Mann drop toilet paper onto the mattress. Thereafter, Holder radioed his sergeant, Officer Heard, and informed him that there was a fire in the dormitory.

Holder then went to inform Officer Bridges, another corrections officer, that there was a fire in Mann's cell. Bridges gave Holder a fire extinguisher and accompanied him and Heard to Mann's cell. When they arrived at the cell, they saw Mann standing by the wall looking at the fire. Mann was instructed to place his hands through the latch in the door so that he could be handcuffed.² He was then escorted to the infirmary to be evaluated for possible injuries and smoke inhalation. After Mann was taken from the cell, Holder extinguished the fire on the mattress. These officers saw no evidence of another fire in the cell.

Later, Lieutenant Dresback, a Metro Dade Para Fire Investigator, and Fire Marshall Olon arrived and found evidence of two separate fires in the cell. In addition to the mattress fire on the floor, they saw evidence of a fire on the top bunk which had burned itself out. Dresback and Olon also found blue issue pants, magazines, and cups inside the cell.

At trial, the inspectors opined that a fire was started on the top bunk, which was then transferred to the mattress that lay on the floor. The fire inspectors also testified that they did not observe any scorching on the bottom of the cell door, and thus they did not believe that the source of the fire was from a flame underneath the door. Dresback, however, did acknowledge that if the mattress had been by the door, and the mattress cover was separated to expose the filler material located in the mattress, a wick could have been passed underneath the door and started the fire. He claimed that a "quick pass-through" of a flame would not have scorched the bottom of the door.

During Olon's testimony, the prosecutor asked, over objection, whether he, based on his thirty arson investigations in the prison system, had come to have an opinion as to why inmates start fires in their cells. The objection was overruled, and Olon testified that inmates in the state facility start fires to be transported to a county facility for better conditions. The state elicited similar testimony from Bridges and Heard who claimed that inmates generally start fires so that they can be transferred to the Dade County Jail to enjoy better living conditions such as airconditioning, cable television and visitation rights.

After the state rested its case, Mann took the stand and gave a different version of the events. He testified that prior to the fire, he had been standing at a window located on the back wall of the cell attempting to attract the attention of an inmate in the next dormitory. Mann explained that he wanted someone to notify his family that he was in confinement so that they would not attempt to visit him. While talking by the window, Mann claims that he overheard inmates in the next cell yelling and asking him whether he had matches. Mann responded that he did not and then heard a trustee nicknamed "Pompano" walk by. Mann returned to his conversation at the window. A short time later, Mann claimed that he smelled smoke and turned around. When he realized that the smoke was coming from within his cell, he grabbed toilet paper, dipped it in the toilet, and threw it on the mattress in an effort to put the fire out. Corrections officers came to the door, took him out of the cell, and put the fire out.

During his testimony, Mann, a former trustee, explained that trustees regularly traded items of value for a light to allow inmates to smoke. The trustees would pass a wick or a lit paper, under the door so the inmate could light a cigarette. Mann speculated that this may have been how the fire started on his mattress, although he did not see it happen.

On cross-examination, the state sought to discredit Mann by confronting him about not telling the correction officers that he had heard the trustee, Pompano, outside his cell just before the fire. There was no objection and Mann acknowledged that prior to his trial testimony, he had told no one about his theory of how the fire started. The state argued Mann's silence to the jury again during at closing argument.³

The jury convicted Mann as charged and he brought the instant appeal. Essentially, he argues that the cumulative affect of several evidentiary errors, and/or impermissible prosecutorial comments deprived him of a fair trial, thus warranting reversal of his conviction. We disagree and will address each issue presented.

Mann first argues that the trial court erred in permitting corrections officers, Bridges and Heard, to testify that inmates in confinement generally start fires so that they can be transferred back to the Dade County Jail where living conditions are more favorable. Mann, citing to Nowitzke v. State, 572 So.2d 1346 (Fla. 1990); Doherty v. State, 726 So.2d 837 (Fla. 4th DCA 1999); and Lowder v. State, 589 So.2d 933, 935 (Fla. 3d DCA 1991), asserts that the admission of generalized criminal behavior by law enforcement officers to prove a particular defendant's guilt constitutes reversible error. We note at the outset that this issue was not properly preserved for appellate review. During Bridge's testimony defense counsel merely objected to said testimony as having "no predicate," and counsel never objected at all to Heard's direct examination testimony. See Castor v. State, 365 So.2d 701 (Fla.1978)

.⁴

Even if we were to deem that the admission of such evidence to be error, given the fact that Mann's motive or intent was not an issue in this case, we would nevertheless have to find such error to be harmless in light of the fact that Fire Marshall Olon was permitted to similarly opine that inmates start fires in their cells to be transferred to the county jail facility with better living conditions.

Mann next claims that the trial court erred when it permitted the state to present the highly prejudicial evidence of his prior bad acts where he had not placed his character at issue and where character was not an element of the charge. Specifically, Mann asserts that the trial court erred in permitting the state to elicit evidence of Mann's prior confinement a month earlier in an effort to demonstrate that Mann knew the procedure...