Moody v. State, 52907

• Decision Date: 15 July 1982
• Docket Number: No. 52907,52907
• Citation: 418 So.2d 989
• Parties: Eldred Lonnie MOODY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 989

418 So.2d 989

Eldred Lonnie MOODY, Appellant, v. STATE of Florida, Appellee.

No. 52907.

Supreme Court of Florida.

July 15, 1982.

Rehearing Denied Sept. 14, 1982.

Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender, and Jerry L. Schwarz, Richard B. Greene and Jon A. May, Asst. Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.

ALDERMAN, Chief Justice.

Eldred Lonnie Moody was convicted of the first-degree, premeditated murder of Murray Bell and, consistent with the jury's recommendation, was sentenced to death by the trial court. On appeal, we affirm his conviction, but we reverse his sentence of death and remand for resentencing without an additional jury recommendation because the trial court considered an improperly found aggravating circumstance in this case where there was also a properly found statutory mitigating circumstance and because the trial court apparently did not consider nonstatutory mitigating circumstances.

The victim, Murray Bell, a man in his sixties, lived alone in his trailer and mowed lawns and sold peanuts for a living. Bell knew Moody and apparently thought him to be a friend. On several occasions, Moody asked Bell for money and advised Bell that the money was for religious purposes. He told Bell that if Bell did not give him the money, Bell would die. He also told an elderly lady friend of Bell's that if she did not raise the money for him, he was going to see either her or Bell murdered.

On February 17, 1977, Moody was without money and without a place to live. He, Athena Mock, Sherry Bassett, and Mock's child had been sleeping in Bassett's Volkswagen for several days prior to the murder. The morning of February 17, 1977, Moody went to Bell's trailer with the intention of getting Bell's van. When Bell refused to give Moody the van, Moody again threatened him. Moody, along with Mock, Bassett, and the child, then left Bell's trailer. Moody stopped at a TG&Y store and bought a knife. Then between 3 and 5 p.m., he, Mock, Bassett, and the child returned to Bell's trailer and entered through the back door. Moody ransacked the trailer and spread paper towels throughout the trailer. In response to her inquiry as to what he was doing, Moody told Mock that paper towels burn easily. They then waited for Bell to return, without having turned on any lights. When Bell returned, Moody motioned for the women and the child to go to the back bedroom, which they did. Mock testified that she heard much noise from the living room--banging around, scuffling, and grunting and groaning, and yelling from the victim. She heard Bell beg Moody not to kill him. Moody then came to the bedroom door and told them they could come out. He then took a paper sack with money in it and his yellow jacket and placed these in the Volkswagen. As they were leaving, Mock saw a puddle of blood on the floor.

At Moody's direction, Mock left in the Volkswagen, and Bassett drove away in Bell's van. He told them to wait for him down the road because the Lord still wanted him to burn the trailer. Several minutes later after he had joined them, Moody told Mock and Bassett that he did not realize that a man the victim's age had so much strength and that he did not know that it took a man so long to die. He also told them that he did not kill Bell of his own will, that God wanted him to do it, and that he would not have had enough strength to do it on his own.

The fire in Bell's trailer alerted the neighbors and the fire department. Bell's blood-soaked body was found in a south bedroom in his trailer. The sheriff's department was immediately notified, and sheriff's deputies were advised to be on the lookout for the green Volkswagen beetle, which had been observed by Bell's neighbors outside his trailer at the time of the murder, and for the van which belonged to Bell. Within approximately an hour and a half after the murder, Moody, who was driving Bell's van enroute to Jacksonville, was stopped by a deputy sheriff. At the time he was stopped, Moody had a bloodstain on his face and blood on his shirt, pants, belt, and shoes. The blood on his pants was of the same blood type as Bell's. Bassett and Mock, who were in the Volkswagen, were also stopped and detained. A search of the Volkswagen pursuant to a search warrant revealed a bag containing Moody's bloodstained, yellow jacket, a small bag of coins, a display card for an "Old Hickory" household knife, a TG&Y sales slip for the knife, and four paper bags containing $7.10 in coins. The "Old Hickory" household knife was found on the kitchen sink in Bell's trailer.

The medical examiner testified that this knife could have caused the wounds on Bell's body. Bell had been stabbed twenty-seven times--seventeen in the chest and back and ten on the hands. The wounds on Bell's hands were described by the medical examiner as defensive wounds, wounds caused by attempting to take the knife from the killer. Bell's death was caused by the stab wounds, not the fire. The evidence clearly demonstrates that the murder was consummated before Moody set fire to the trailer.

Moody was indicted for the premeditated stabbing murder of Bell. Two psychiatrists found that he was legally sane to stand trial and that he was legally sane at the time of commission of the murder. He appeals his conviction of the premeditated, first-degree, stabbing murder of Bell on several grounds.

He argues that he was deprived of his sixth amendment right to compulsory process of witnesses and his right to present a defense by the trial court's denial of his petition for writ of habeas corpus ad testificandum directed to Bassett who was committed to a state mental hospital in Georgia after having been declared incompetent to stand trial in that state upon the charge of first-degree murder of her mother. The trial court had granted Moody's motion to depose Bassett, but Bassett refused to answer any questions on the basis that she might incriminate herself. The court held a hearing on the motion to compel testimony and motion for habeas corpus ad testificandum to determine whether Bassett's claim of her fifth amendment privilege was valid and whether she was competent to testify. After the hearing, the court denied these motions.

Moody acknowledges that the issuance of a habeas corpus ad testificandum is discretionary with the court, but contends that the trial court abused its discretion. We hold that the trial court did not abuse its discretion and that the denial of Moody's request does not constitute reversible error. We also reject Moody's contention that he was denied due process of the law by the prosecutor's failure to give Bassett immunity. Furthermore, we hold that the trial court's excluding from evidence Bassett's Florida counsel's testimony that, after being released from the Orange County jail, Bassett went to Georgia and killed her mother was entirely proper.

Moody next argues that the court's instructions on murder were misleading and may have caused Moody to be wrongfully convicted of first-degree murder. During the jury charge conference, the court agreed with Moody's counsel that the felony murder instruction should not be given because the evidence was tenuous at best as to whether there was a first-degree felony murder. The court did not give the separate instruction on felony murder, but in giving the definition of first-degree murder, it did include the entire statutory definition of first-degree murder which includes a reference to felony murder. ¹ This reference to felony murder in the context of the definition of first-degree murder did not amount to reversible error since, in the present case, there is not only sufficient but also overwhelming evidence of premeditation. See Knight v. State, 394 So.2d 997 (Fla.1981). The record shows that Moody threatened Bell's life on several occasions prior to February 17, 1977, in order to force Bell to give him money. On the morning of the murder, Moody asked Bell for his van, and when Bell refused, he again threatened him. Moody then went to the store, bought a knife, returned to the trailer, and waited several hours for Bell to return. When Bell returned, he signaled the women and the child accompanying him to go to the bedroom and close the door, and he then proceeded to stab Bell seventeen times in the chest and back while Bell begged for his life and tried to ward off the knife with his hands. The evidence is overwhelming that Moody went to Bell's trailer with the intention of killing him and with the intention of getting Bell's van.

Moody next challenges his conviction on the basis that reversible error was committed when the prosecutor, during voir dire of the prospective jurors, asked the venire certain questions which Moody characterizes as asking the jury to prejudge the credibility of a witness. The prosecutor asked potential jurors whether they would never return a verdict of guilty under any circumstances where the evidence presented was from a witness who was present at the scene of the crime and who was granted immunity by the State. The State urges that this questioning was used to ferret out prejudice and to secure an unbiased jury and that the prosecutor was not asking the potential jurors to predecide the witness's credibility.

The purpose of the voir dire proceeding is to secure an impartial jury, and impartiality requires not only freedom from jury bias against the accused and for the prosecution but also freedom from jury bias against the prosecution and for the accused. Downs v. State, 386 So.2d 788 (Fla.), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 238 (1980); Lewis v. State, 377 So.2d 640 (Fla.1979). See also Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979).

The prosecutor's question is...