Mason v. State, 60703

• Decision Date: 08 September 1983
• Docket Number: No. 60703,60703
• Parties: Oscar MASON, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 374

438 So.2d 374

Oscar MASON, Jr., Appellant, v. STATE of Florida, Appellee.

No. 60703.

Supreme Court of Florida.

Sept. 8, 1983.

Rehearing Denied Oct. 27, 1983.

Jerry Hill, Public Defender, and W.C. McLain and Samuel R. Mandelbaum, Asst. Public Defenders, Tenth Judicial Circuit, Bartow, appellant.

Jim Smith, Atty. Gen. and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.

ADKINS, Justice.

We have for review an order by a circuit court imposing the death penalty upon appellant, Oscar Mason, Jr., (hereinafter appellant). We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

In the early morning hours of March 19, 1980, eleven-year-old Missy Chapman woke her two brothers, telling them that something was the matter with their mother, Linda Sue Chapman, who lay in bed making choking sounds. Mrs. Chapman, who had been stabbed, died before the police or an ambulance arrived. None of the children reported having seen or heard anyone in their home the night of the killing.

A few days after the killing, Missy contacted a detective working on the case and told him that she had seen her mother being stabbed and had acted asleep until the man left the house. Fear that the killer would return had kept her from disclosing what she saw, claimed Missy. She described the assailant as a skinny black male, seventeen to nineteen years old, with short, dark hair. At a later deposition, however, Missy stated that she could not "actually see what [the killer] looked like." She was also unable, at a line-up or from photographs, to identify appellant or anyone else as the killer. At trial, nevertheless, Missy pointed out appellant, stating that she was "sure" he was her mother's murderer.

Two of appellant's fingerprints were found on the siding of the Chapman home, but none were found inside. A state's witness also testified that in his opinion, hairs found at the scene were appellant's.

At trial, the judge held admissible evidence concerning appellant's conviction for a rape and robbery committed two days after the Chapman murder. The collateral crime evidence was found relevant to the issue of identity on the basis of the similarity of the modus operandi used in each instance.

Appellant was found guilty of first-degree murder and in accordance with the jury's recommendation, sentenced to death. This appeal followed.

Appellant first argues that the trial court erred in admitting evidence of "an unrelated rape and burglary incident ... purportedly to prove identity." The collateral crime evidence, which was admitted pursuant to and in compliance with section 90.404, Florida Statutes (1979), was introduced only to show bad character or propensity, and showed nothing unique or unusual about him or his supposed modus operandi, asserts appellant. We disagree.

There are, as appellant notes, several distinctions between the two crimes. For example, one was a homicide, the other a rape; one home was ransacked and robbed, the other was not; the knife used in one crime was taken from a kitchen drawer, the other from a kitchen sink, and so on. Especially important, states appellant, are the dissimilar physical descriptions of the attackers given by the state's witness in each case.

There are, however, many similarities between the crimes. They occurred within two days and eight-tenths of a mile of each other. In both cases the attacker entered the home through a window, armed himself with a knife from the kitchen and assaulted a woman in her bedroom. One victim was stabbed through the heart while the other was verbally threatened with the same, and a towel was found in the bedroom and outside near the points of entry at both locations. Finally, appellant's fingerprints were found at both scenes.

In Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), this Court held that "evidence of any facts relevant to a material fact in issue except where the sole relevancy is character or propensity of the accused is admissible unless precluded by some specific exception or rule of exclusion." 110 So.2d at 663. The similar facts here were intended to show that the same modus operandi was used in the incidents, which would be relevant to the identity of Mrs. Chapman's killer.

In Drake v. State, 400 So.2d 1217 (Fla.1981), we explained what is required for similar facts to be admissible to show a mode of operation and, hence, identity:

The mode of operating theory of proving identity is based on both the similarity of and the unusual nature of the factual situations being compared. A mere general similarity will not render the similar facts legally relevant to show identity. There must be identifiable points of similarity which pervade the compared factual situations. Given sufficient similarity, in order for the similar facts to be relevant the points of similarity must have some special character or be so unusual as to point to the defendant.

400 So.2d at 1219.

There are enough identifiable points of similarity in the cases here being compared, and they are unusual enough, that the trial court was warranted in permitting the introduction of the evidence. We will not disturb its ruling admitting the testimony regarding the rape and robbery.

Appellant next argues that certain comments made by the prosecutor during both the guilt and penalty phases of his trial constituted fundamental error. In closing argument at the guilt phase, the prosecutor warned the jury that if appellant were turned loose "he is going to do two days later ... just what he did two days after March the 18th"--[i.e. rob and rape]. In closing argument during the penalty phase of the trial, the prosecutor stated that appellant "has established a very, very clear pattern of criminality" and "absolutely cannot be rehabilitated." The comments were so prejudicial, claims appellant, that he is entitled to a new trial.

In Blair v. State, 406 So.2d 1103 (Fla.1981), citing several other cases, we refused to order a new trial despite allegedly improper remarks by a prosecutor. The remarks were not "of such a nature so as to poison the minds of the jurors or to prejudice them so that a fair and impartial verdict could not be rendered," did not "materially contribute" to the conviction, were not "so harmful or fundamentally tainted so as to require a new trial," and were not so inflammatory as to "have influenced the jury to reach a more severe verdict of guilt than it would have otherwise." 406 So.2d at 1107 (citations omitted).

The observations in Blair, lead us to conclude that although the comments of which appellant complains might warrant reversal in some cases, they do not here. Compelling evidence of appellant's guilt was presented during his trial, and the aggravating factors found applicable at sentencing significantly outweighed those in mitigation. We do not believe that the statements contributed materially to the verdict or the recommended sentence.

Also worth noting is that appellant's attorney objected to the statement made during the guilt phase of the trial, the court sustained the objection, and the jury was instructed to disregard the comment. While such an instruction alone does not eliminate fundamental error, it is further evidence that the relatively immaterial comment does not require a reversal. As for the statement made during the penalty phase, it was never objected to and so the matter was not preserved for appellate review. See Clark v. State, 363 So.2d 331 (Fla.1978). Had it been preserved, we would put it in the same category as the statement made during the guilt phase.

Appellant next alleges that the evidence identifying him as Mrs. Chapman's killer was insufficient and so the trial court erred in denying his motion for judgment of acquittal. Appellant contends that Missy Chapman's in-court identification was made under blatantly suggestive conditions and conflicted with prior statements that she had made to the police, that there was no evidence that his fingerprints found on the outside of the Chapman home were not placed there some time before the murder, that the comparison test which identified hairs found on a towel outside the house as his was scientifically unsound, and that there was no evidence of how his hairs ended up on the towel or how the towel ended up outside the house.

We agree with appellant that Missy Chapman's identification of him as the assailant has little credibility. Before trial she stated that when the murderer was in the bedroom, his back was towards her and that she could not "actually see what he looked like." At a line-up held one week after the killing Missy failed to identify appellant as the killer and when photographs of those in the line-up were later shown to her she again failed to pick him out. Finally, at trial, almost one year after the murder, Missy identified appellant as the man that she had seen. He was, however, the only black man at counsel's table and she had been informed that the man charged with killing her mother would be in the courtroom. The courtroom conditions were too suggestive, and her prior attempts too unsuccessful, to give much credence to Missy's identification of appellant.

The other evidence, however, was not so flawed. The fingerprints found at the scene were identified as appellant's and they were on the sill of the window through which the killer evidently entered the house. Appellant's speculation that the prints could...