Muhammad v. State

Decision Date18 January 2001
Docket NumberNo. SC90030.,SC90030.
Citation782 So.2d 343
PartiesAkeem MUHAMMAD, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Richard L. Jorandby, Public Defender, and Gary Caldwell, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Appellant.

Akeem Muhammad, Raiford, FL, Appellant, pro se.

Robert A. Butterworth, Attorney General, and David M. Schultz and Leslie T. Campbell, Assistant Attorneys General, West Palm Beach, FL, for Appellee.


We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Akeem Muhammad. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we uphold the conviction but vacate the death penalty and remand for new sentencing proceedings.

Akeem Muhammad was convicted and sentenced to death for the July 20, 1995, murder of Jimmy Lee Swanson. Swanson was at a convenience store talking on the phone with his mother when a man carrying two handguns approached and demanded, "Where is the girl?" Attempting to flee, Swanson ran toward the busy highway adjacent to the store. The man chased Swanson, while shooting both weapons. Swanson fell down in the middle of the road, and the man stood over him and fired several shots at close range. Although the fatal gunshot wounds were received at close range, several of Swanson's gunshot wounds had been inflicted from a distance. The manager of the convenience store, as well as motorists on the highway, all subsequently identified the perpetrator as Muhammad.

To explain the motive for the murder, the State presented testimony that approximately three days prior to the shooting, Sandra DeShields had stolen between $2000 and $3000 from Muhammad. After the theft, DeShields sought Swanson's help, and he provided her with a place to live for a few days. The night before the murder, DeShields overheard Muhammad threaten that he knew who had "his shit" and that he would kill DeShields and her son. Swanson drove DeShields to the bus station the night before the murder so that she could leave town. DeShields gave Swanson $300 of Muhammad's money for helping her. DeShields testified that Muhammad had seen Swanson at her house previously.

Hours after the murder, a police officer saw a rust-colored vehicle matching the description of the getaway car. Before the officers turned on the lights or sirens of the police cars, the driver of the rust-colored car stopped in a turn lane and threw his hands out the window. Muhammad told the officers that he knew he was wanted for murder. On the drive to the police station, the officer commented that he was glad that Muhammad had cooperated in the arrest and that the officers did not have to use deadly force. Muhammad responded that he wished he had provoked the officers because he had nothing to live for.

The jury found Muhammad guilty of first-degree murder. During jury selection, Muhammad had discharged his penalty phase counsel because he did not want counsel to continue investigating mitigating circumstances. Before penalty phase counsel was discharged, the trial court asked what mitigating factors counsel had discussed with Muhammad. Counsel stated that Muhammad had prevented him from investigating mitigating factors. However, counsel also informed the court that he had repeatedly advised Muhammad that possible mitigating factors existed, such as age (twenty-three years old at the time of the crime), childhood abuse and neglect, living in a foster home from a young age,1 possible mental health problems, and a heart condition.

At the close of the guilt phase, Muhammad also requested a waiver of sentencing proceedings before a jury, but the trial court denied this request. Muhammad did not present any mitigating evidence. As a result, the jury heard only the State's evidence and argument as to why the death penalty should be imposed.

The jury returned with a recommended sentence of death by a vote of ten to two. At the sentencing phase, the trial court considered mitigating circumstances contained in the presentence investigation report (PSI), which had not been presented to the jury. The trial court imposed a death sentence, finding two aggravating factors applicable: (1) previous conviction of a violent felony—two convictions for armed robbery; and (2) the defendant knowingly created a great risk of death to many people. In mitigation, the court considered: (1) the defendant's age of twenty-three at the time of the crime (some weight); (2) the defendant's good behavior during trial (little weight); (3) the defendant's cooperation when arrested (little weight); (4) the defendant's difficult and unstable childhood (some weight). Muhammad raises sixteen points on appeal2 and seven points in his supplemental pro se brief.3


We first consider the guilt phase issues in the order in which they arose at trial.

A. Muhammad's absence from sidebar

During voir dire, the trial court had informed the jurors that if they wanted to answer any questions confidentially, the court would hold sidebar conferences with the jurors and counsel. Several potential jurors requested sidebar conferences to answer questions concerning whether their previous experiences with law enforcement officers or the court system would affect their ability to be impartial jurors. In addition, two jurors were questioned at a sidebar conference concerning whether their views on capital punishment would prevent them from following the law in making a sentencing recommendation pertaining to whether the death penalty should be imposed. Although Muhammad was in the courtroom during these sidebar conferences, he was not present at the bench. Muhammad had the opportunity to consult with his attorneys before the exercise of peremptory challenges and was present for the exercise of the challenges. At trial, no objection was raised to this procedure, but Muhammad now claims the sidebar conferences violated his constitutional right to be present at critical stages of the proceedings, which include jury selection, as well as his procedural right to be present pursuant to Florida Rule of Criminal Procedure 3.180.

Criminal defendants have a due process right to be physically present in all critical stages of trial, including the examination of prospective jurors. See Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). In Francis v. State, 413 So.2d 1175, 1178 (Fla.1982), we recognized that the process of exercising challenges to members of the jury constitutes a critical stage of the proceedings where a defendant has a right to be present. We found reversible error in Francis because the defendant did not have an opportunity to consult with his counsel while peremptory challenges were being exercised and the defendant did not subsequently waive the right to be present or ratify the procedure. See id.

During the proceedings at issue here, the jurors were being questioned concerning their ability to serve on this particular jury, for example, whether the jurors had prior experiences with the law enforcement agencies involved in this case. For that reason, we reject the State's reliance on cases stating that the questioning of jurors during the general qualifications process does not constitute a critical stage of the proceedings requiring the defendant's presence. See Wright v. State, 688 So.2d 298 (Fla.1996). We have previously explained the difference:

It is important to understand the distinction between the general qualification of the jury by the court and the qualification of a jury to try a specific case. In the former, the court determines whether prospective jurors meet the statutory qualification standards or whether they will not qualify because of physical disabilities, positions they hold, or other personal reasons. The general qualification process is often conducted by one judge, who will qualify a panel for use by two, three, or more judges in multiple trials. Counsel or a defendant does not ordinarily participate in this type of qualification process, although neither is excluded from doing so.

Remeta v. State, 522 So.2d 825, 828 (Fla. 1988). Rather than involving the general qualifications of jurors, jurors were being questioned here to determine whether they were competent to serve on this particular jury. This constituted a critical stage of the proceeding and Muhammad had a right to be present.

We explained in Francis that the exercise of peremptory challenges "permits rejection [of jurors] for real or imagined partiality and is often exercised on the basis of sudden impressions and unaccountable prejudices based only on the bare looks and gestures of another or upon a juror's habits and associations." Francis, 413 So.2d at 1179.4 As correctly observed in Matthews v. State, 687 So.2d 908, 910 (Fla. 4th DCA 1997), "[l]ogic mandates that for a defendant to intelligently participate in jury challenges, the defendant must be present for the questioning of the jurors." A defendant is entitled to more than "second hand descriptions of the prospective jurors' responses to questions during voir dire," and thus "a defendant who requests the court to permit him to participate should be allowed to obtain as much first hand information as feasible to facilitate his ability to participate in the selection of a jury." United States v. Washington, 705 F.2d 489, 497 (D.C.Cir. 1983).

In State v. Melendez, 244 So.2d 137, 139 (Fla.1971), defense counsel consented to the continued examination, challenging, and empaneling of the jury even though the defendant was physically absent from the courtroom. This Court held that no error occurs when the defendant is represented by counsel who waives the presence of the defendant and the defendant later ratifies the action...

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