Owen v. State, 68549

• Decision Date: 23 January 1992
• Docket Number: No. 68549,68549
• Citation: 596 So.2d 985
• Parties: 17 Fla. L. Weekly S71 Duane Eugene OWEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 985

596 So.2d 985

17 Fla. L. Weekly S71

Duane Eugene OWEN, Appellant, v. STATE of Florida, Appellee.

No. 68549.

Supreme Court of Florida.

Jan. 23, 1992.

Rehearings Denied April 1, 1992.

Craig Boudreau and Anthony J. Natale, West Palm Beach, for appellant.

Duane Eugene Owen, pro se.

Robert A. Butterworth, Atty. Gen., and John W. Tiedemann and Celia A. Terenzio, Asst. Attys. Gen., West Palm Beach, for appellee.

PER CURIAM.

Owen appeals his convictions for first-degree murder, sexual battery and burglary, and the imposition of the death penalty. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const. We affirm.

The body of the victim, Georgianna Worden, was discovered by her children on the morning of May 29, 1984, as they prepared for school. An intruder had forcibly entered the Boca Raton home during the night and bludgeoned Worden with a hammer as she slept, and then sexually assaulted her. Owen was arrested the following day on unrelated charges and was interrogated over several weeks. He eventually confessed to committing numerous crimes,

including the present murder and a similar murder in Delray Beach in March 1984. See Owen v. State, 560 So.2d 207 (Fla.), cert. denied, --- U.S. ----, 111 S.Ct. 152, 112 L.Ed.2d 118 (1990). At trial on the present murder, sexual battery and burglary, the evidence consisted of Owen's confession, his fingerprint on a library book at the murder scene, and other corroborating evidence. The jury returned guilty verdicts on the charges and recommended death by a vote of ten to two. The trial judge followed the jury's recommendation and imposed death, finding the aggravating circumstances ¹ outweighed the mitigating. ²

GUILT PHASE

Several of Owen's guilt phase issues can be disposed of briefly. He first alleges that his convictions for murder and sexual battery were improper because the victim was dead prior to sexual union. Whether the victim was alive or dead at the time of sexual union, however, is an issue of fact to be determined by the jury. Competent substantial evidence supports its finding. See Owen. Owen's next claim, that police lacked sufficient grounds for stopping and arresting him, is without merit. He was stopped and arrested based on outstanding warrants and photographic identifications made by two burglary victims. Owen's assertion that his statements to police were obtained through psychological coercion has already been rejected by this Court. Id. His claim that his confession was obtained in violation of the rules established in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is without merit. He was routinely informed of his rights and voluntarily waived them. ³ Owen's argument that the jury was "death qualified" and "conviction prone" has already been rejected by this Court. See, e.g., Diaz v. State, 513 So.2d 1045 (Fla.1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1061, 98 L.Ed.2d 1022 (1988).

Owen raises three guilt phase issues in a pro se brief. He argues that his fifth amendment rights were violated when police failed to act on his request to speak with an assistant state attorney concerning charges that were to be filed against him. We are unaware of any constitutional right to consult with a state attorney. Owen also argues that his due process rights were violated when police failed to videotape every occasion when he was interviewed by police. We find this argument to be totally without merit.

In his third pro se argument, Owen contends that his confession to the Worden murder was obtained in violation of his Sixth Amendment right to counsel. As noted above, Owen was arrested on burglary charges and outstanding warrants on May 30, 1984. The following day, he attended first appearance, where he requested and received appointment of counsel on those charges. Owen confessed to the Worden murder on June 21, during police-initiated questioning. The next day, he attended first appearance on the murder charge and counsel was appointed. He was indicted on this charge on July 11.

The Sixth Amendment right to counsel attaches when "judicial criminal proceedings" begin:

The initiation of judicial criminal proceedings is far from a mere formalism.

It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the "criminal prosecutions" to which alone the explicit guarantees of the Sixth Amendment are applicable.

Kirby v. Illinois, 406 U.S. 682, 689-90, 92 S.Ct. 1877, 1882-83, 32 L.Ed.2d 411 (1972). ⁴ Although adversary judicial proceedings may commence in a number of ways--via "formal charge, preliminary hearing, indictment, information, or arraignment," id. 406 U.S. at 689, 92 S.Ct. at 1882--the federal Court ⁵ and commentators ⁶ are in agreement Once the right attaches, an accused is entitled to assistance of counsel at each "critical stage" of the prosecution, including police questioning. Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). Where the right has attached and been invoked, any subsequent waiver in the absence of counsel during police-initiated questioning is invalid. Id. The right to counsel, however, is offense-specific: attachment and invocation of the right on one charge imposes no restrictions on police inquiry concerning other charges against the same defendant. McNeil v. Wisconsin, --- U.S. ----, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991).

that such proceedings clearly have begun when an accused is placed in custody, haled before a magistrate on a warrant or formal complaint, and then tentatively charged with a particular crime at this initial appearance or "arraignment." ⁷

In the present case, although Owen's right to counsel had attached and been invoked on the initial burglary charge and outstanding warrants by the time of his first appearance on those offenses, this fact is unrelated to his rights concerning the Worden murder. His rights on the murder charge attached when he attended first appearance on that offense. Because the questioning session during which he confessed took place prior to this first appearance, Owen had no Sixth Amendment right to counsel at that time. Thus, no Sixth Amendment right was violated.

PENALTY PHASE

Although the trial judge heard "victim impact" testimony ⁸ from the victim's father, we find this harmless in light of the fact that the judge did not give this evidence any weight at sentencing. See Grossman v. State, 525 So.2d 833 (Fla.1988), cert. denied, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989). All of Owen's arguments that Florida's capital-sentencing scheme is unconstitutional have been rejected by this Court. ⁹

During the penalty proceeding before the jury, the State introduced evidence of Owen's convictions in the Delray Beach murder, sexual battery, and armed burglary. See Owen. The trial court used these convictions as a basis for finding as an aggravating factor that Owen had previously been convicted of another capital or violent felony. Owen now claims that he is entitled to a new sentencing proceeding because the Delray Beach convictions were subsequently reversed by this Court. Id. Based on our examination of the record, however, we conclude that use of this evidence was harmless error. Given the nature and extent of other evidence in aggravation presented to the jury we conclude that its recommendation would have been unchanged. We similarly conclude that the trial court's sentence would have been the same because the aggravating circumstance concerning prior conviction of a violent felony was adequately supported by Owen's conviction for attempted first-degree murder in a third case.

Owen's claim that the trial court erred in finding as an aggravating circumstance that the murder was committed during the course of a sexual battery or burglary is without merit in light of our discussion concerning sexual battery above. Sufficient evidence also supports the court's finding that the murder was especially heinous, atrocious, or cruel. The sleeping victim was struck on the head and face with five hammer blows. She awoke screaming and struggling after the first blow and lived for a period of from several minutes to an hour. Her neck was constricted with sufficient force to break the bones therein. She was sexually assaulted and the walls of her vagina were torn by a foreign object, such as the hammer handle. The court's finding that the murder was committed in a cold, calculated, and premeditated manner was also adequately established. Owen selected the victim, removed his own outer garments to prevent them from being soiled by blood, placed socks on his hands, broke into the home, closed and blocked the door to the children's room, selected a hammer and knife from the kitchen, and bludgeoned the sleeping victim before strangling and sexually assaulting her.

Based on the foregoing, we affirm the convictions and sentences. We disapprove language in Kight v. State, 512 So.2d 922 (Fla.1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1100, 99 L.Ed.2d 262 (1988); and Keen v. State, 504 So.2d 396 (Fla.1987), to the extent it is inconsistent with the Sixth Amendment analysis above.

It is so ordered.

SHAW, C.J., and OVERTON, McDONALD and GRIMES, JJ., concur.

BARKETT, J., dissents with an opinion, in which KOGAN, J., concurs.

KOGAN, J., dissents with an opinion.

BARKETT, Justice, dissenting.

I dissent because I believe that the confession to the Worden murder was obtained in violation of Owen's right to counsel under article I, section 9 of the Florida Constitution. When Owen attended first appearance on the...