Parker v. State, 63177

• Decision Date: 22 August 1985
• Docket Number: No. 63177,63177
• Citation: 476 So.2d 134,10 Fla. L. Weekly 415
• Parties: 10 Fla. L. Weekly 415 J.B. PARKER, Appellant v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 134

476 So.2d 134

10 Fla. L. Weekly 415

J.B. PARKER, Appellant v. STATE of Florida, Appellee.

No. 63177.

Supreme Court of Florida.

Aug. 22, 1985.

Rehearing Denied Oct. 28, 1985.

Robert G. Udell, Stuart, for appellant.

Jim Smith, Atty. Gen. and Lydia M. Valenti and Richard G. Bartmon, Asst. Attys. Gen., West Palm Beach, for appellee.

OVERTON, Justice.

The appellant, J.B. Parker, was convicted of the first-degree murder of a convenience store clerk, in addition to kidnapping and robbery with a firearm. In accordance with the jury's recommendation, the trial judge imposed the death sentence for the first-degree murder. He also imposed consecutive ten-year sentences for the kidnapping and the robbery. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and we affirm the convictions and the imposition of the death sentence.

The essential facts are as follows. On April 27, 1982, the 18-year-old victim was working the late shift in a convenience store in Stuart, Florida. The appellant and his codefendants, John Earl Bush, Alfonso Cave, and Terry Wayne Johnson, had set out in Bush's car from Fort Pierce to West Palm Beach. Appellant's taped statement reflects that, during the course of the trip, Bush told the appellant, "We're going to rob something." Later, Bush and Cave went into the convenience store where the victim was working, after previously visiting the store to stake it out. Bush and Cave took the money and the woman, placing her in the back seat of the car. The victim pleaded, "You aren't going to hurt me," and Bush responded, "Man, I'm going to kill this bitch. I done been to prison for six years and I ain't going back, 'cause this whore going to identify us." At an isolated location the victim was dragged out of the car by her hair. During the course of the 20-minute trip, the victim had pleaded that she not be hurt. At trial, Bush's girlfriend testified that, after the victim was removed from the car, Bush stabbed her and the appellant shot her. The victim apparently sank to the ground in a kneeling posture after being stabbed and was shot in the back of the head, execution-style, from a distance of approximately two feet. Medical testimony established that the gunshot--not the stabbing, which was a two-inch shallow wound--killed the victim. The appellant and the codefendants then drove back to Fort Pierce and split the money four ways, the appellant receiving twenty to thirty dollars.

A few days after the victim was found, the codefendant Bush made a statement to the police implicating Parker along with the other codefendants. The appellant was arrested and taken to the Martin County jail where, aware that Bush had made a statement, he advised a jailer that he wanted to talk about the case. The jailer told the appellant that he could not talk to him, and that appellant had to talk to his attorney. The appellant responded that he did not want to talk to his attorney, but indicated that he wanted to talk to the sheriff. The sheriff also told appellant that he could not talk to him and that counsel had been appointed to represent him. The sheriff called the public defender's office, which sent a representative to the jail who advised the appellant not to say anything. Notwithstanding this advice, appellant stated that he wanted to go ahead and speak anyway to clear his conscience and to tell them that he did not kill the girl. The sheriff repeatedly advised appellant that a lawyer had been appointed to represent him and that nobody was going to force the appellant to make a statement. In response, Parker advised the sheriff that he still wanted to make a statement. In his statement, appellant denied participating in the killing and stated that Bush both stabbed and shot the victim. The appellant later retraced with law enforcement officials the route he and the codefendants had taken and showed them where they had taken the victim out of the car and where they had put the body.

The evidence also reflects that Bush's girlfriend, Georgeanne Williams, went to visit Bush in jail, during which time she also visited Parker. She testified concerning her conversation with Parker as follows:

Williams: I asked him what had happened. He said, "Didn't John [Bush] tell you." I said, "No, John didn't tell me anything." I said, "I just want to know who shot the girl, that's all."

Prosecutor: Okay. And after you told J.B. Parker you just wanted to know who shot the girl, what did J.B. Parker tell you, Georgeanne?

Williams: He told me, he said, "I shot her and John stabbed her." And he said if I mentioned it, it would be my word against his. He said that John already had a past record, it would be on him, anyway.

Williams recited Parker's admission to her mother and sister and they in turn testified about that fact at the trial. The defendant testified on his own behalf and denied participation in the killing. The jury returned a verdict of guilty of first-degree murder, in addition to kidnapping and robbery with a firearm.

In the penalty phase, Parker presented testimony of a clinical psychologist who testified that, in his opinion, Parker was a passive or non-aggressive type of individual. On cross-examination, it was brought out by the state that the appellant had a juvenile record of breaking and entering into schools. By a vote of eight to four, the jury recommended the imposition of the death penalty. In accordance with the jury's recommendation, the trial judge imposed the death penalty. In so ruling, the trial judge found five aggravating circumstances: (1) the defendant was previously convicted of a delinquent act involving the use or threat of violence to a person; (2) the capital felony was committed while the defendant was engaged in the commission of a kidnapping and robbery; (3) the capital felony was committed for pecuniary gain; (4) the capital felony was especially evil, wicked, and cruel; and (5) the capital felony was a homicide and was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. As mitigating circumstances, the trial judge found that the victim was not sexually molested; the defendant was of a young age (19) at the time of the offense; and the defendant's behavior at trial was acceptable.

The codefendants Bush and Cave were also convicted of first-degree murder and both received the death penalty. This Court affirmed Bush's conviction and sentence in Bush v. State, 461 So.2d 936 (Fla.1984). Cave's appeal of his conviction and sentence is presently before this Court on direct appeal.

Guilt Phase

The appellant challenges his conviction on five grounds. First, appellant asserts that the trial court erred by allowing the state, over appellant's objection, to introduce into evidence the testimony of the witness Williams' mother and sister to show that the statements made to them by Williams regarding appellant's admission of guilt were consistent with Williams' testimony at trial. It is argued that the admission of the testimony of the sister and mother violated the general rule in Florida that a witness's testimony may not be corroborated by his own prior consistent statement. Van Gallon v. State, 50 So.2d 882 (Fla.1951); McRae v. State, 383 So.2d 289 (Fla. 2d DCA 1980). The appellant recognizes that the Florida Evidence Code contains certain exceptions to this rule. Section 90.801(2)(b), Florida Statutes (1981), provides such an exception and reads, in part:

(2) A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is:

....

(b) Consistent with his testimony and is offered to rebut an express or implied charge against him of improper influence, motive, or recent fabrication....

Appellant argues that this exception is not applicable on the basis of McElveen v. State, 415 So.2d 746 (Fla. 1st DCA 1982), in which the district court held that a prior consistent statement was inadmissible because it was not made prior to the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify. See also Kellam v. Thomas, 287 So.2d 733 (Fla. 4th DCA 1974). In applying this principle to the facts of the instant case, appellant argues that it was error to allow the state to strengthen Williams' testimony by introducing evidence of her prior consistent statements made to her mother and sister, when the record clearly establishes a motive to falsify which existed at the time the consistent statement was made. The state argues that Williams' motive to falsify her testimony in order to save Bush from the death penalty was not present at the time she recited Parker's admission to her mother and sister. It asserts that the motive at that time was, at most, to make Bush look better in the eyes of her family. We disagree and find that a reasonable interpretation of the circumstances indicates that the same motive to falsify, namely, to keep Bush out of the electric chair, existed when both statements were made. We find that the admission of the challenged testimony was error because the testimony did not fall within the exception of section 90.801(2)(b). See McCormick, Handbook of the Law of Evidence (2d ed. 1972). We find, however, that the testimony of the mother and sister did not give significant additional weight to Williams' testimony and its admission was, therefore, harmless error. See Teffeteller v. State, 439 So.2d 840 (Fla.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 754 (1984).

We next address the contention that the trial court erred in denying appellant's motion to suppress his taped statement and admissions. Appellant contends that his request to see if his mother had gotten a lawyer to represent him was sufficient to invoke his right to remain silent. Prior to the interrogation which yielded appellant's admissions, appellant stated, "I want my mom...