Parker v. State

• Decision Date: 22 January 2004
• Docket Number: No. SC01-172.,SC01-172.
• Citation: 873 So.2d 270
• Parties: J.B. PARKER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

873 So.2d 270

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

No. SC01-172.

Supreme Court of Florida.

January 22, 2004.

Rehearing Denied April 28, 2004.

David M. Lamos, Fort Pierce, FL, for Appellant.

Charles J. Crist, Jr., Attorney General, and Melanie Ann Dale, Assistant Attorney General, West Palm Beach, FL, for Appellee.

PER CURIAM.

J.B. Parker appeals a death sentence imposed following a new penalty phase after his previous death sentence was vacated because the State failed to produce exculpatory evidence.¹ We previously affirmed Parker's convictions for kidnapping, robbery with a firearm, and first-degree murder. For the reasons that follow, we affirm Parker's death sentence.

FACTS AND PROCEDURAL HISTORY

In 1982, Parker and three other defendants, John Earl Bush, Alphonso Cave, and Terry Wayne Johnson, robbed a convenience store. The facts are set forth in detail in our opinion on Parker's first direct appeal. See Parker v. State, 476 So.2d 134, 135 (Fla.1985)

. We summarized the facts in our most recent opinion in this case as follows:

Money was taken from the store and the female store clerk [Frances Slater] was also taken from the store and placed in Bush's car. The victim was later found dead; she had been shot and stabbed. Death was caused by a gunshot wound to the back of the head. Bush's girlfriend testified that Parker had admitted to her that he shot the victim and that Bush had stabbed her. The girlfriend's mother and sister testified that she told them of Parker's confession. Parker's pre-trial statements to police regarding the crime were also introduced and Parker also testified at trial. In those statements, he implicated himself in the crimes but denied being the shooter.

State v. Parker, 721 So.2d 1147, 1148 (Fla. 1998).

In 1998, Parker was granted a new penalty phase due to the discovery of favorable evidence withheld by the State in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). See Parker, 721 So.2d at 1149

. During the new penalty phase, the State presented witnesses to establish the facts of the original crime and Parker's culpability, including codefendant Johnson, who recounted the events leading to Slater's murder.

Johnson testified that the first time the defendants went to the convenience store, all four went in to buy potato chips and that when they returned to the store later that evening, Parker went into the store with Cave and Bush to commit the robbery. Johnson also testified that when they arrived at the location where Slater was killed, Parker took the gun from Cave. Johnson stated that he heard a shot but did not know who shot Slater, that after the murder Parker told Bush to get rid of the knife, and that the four later split the money taken from the store.

The State also introduced a statement made by Parker on May 7, 1982, when he went with Detective David Powers to the area where the victim was killed. During this time, Parker stated that Bush both stabbed and shot the victim, indicated where Bush had thrown the knife after the murder, and recounted that the four defendants discussed killing a sheriff's deputy, Timothy Bargo, who stopped the car in which they were riding on the night of the murder.

Parker presented several witnesses in mitigation. Of significance for the purposes of Parker's appeal is the testimony of Richard Barlow, who was the prosecutor during Cave's 1993 penalty phase. Barlow stated that he relied on the testimony of Michael Bryant, who was in the same cell as Cave at the Martin County jail, to establish that Cave was a principal in Slater's murder. Barlow testified that Bryant went to Arthur Jackson, who was running the jail at the time, and told Jackson that he overheard a conversation between Cave and Bush, in which Cave admitted that he "popped a cap" in the back of Slater's head.

In addition, portions of Michael Bryant's testimony given during Cave's 1993 penalty phase were read into the record. Bryant testified about the conversation he overheard between Cave and Bush:

Well what I overheard, Bush was a couple of cells down and what it was, you know, they started talking about it and Bush told Cave, says, we wouldn't never be in here if you didn't try to burn her with a cigarette butt. He says, well, you stabbed her in the stomach and Bush told Cave, he says, well, you popped a cap in the back of her head.

The jury returned a verdict recommending a sentence of death for Parker by a vote of eleven to one. The trial court found five aggravating factors: (1) the capital felony was committed while the defendant was engaged in the commission of a kidnapping; (2) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest; (3) the capital felony was committed for pecuniary gain; (4) the capital felony was especially heinous, atrocious, or cruel ("HAC"); and (5) the capital felony was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification ("CCP"). The trial court found one statutory mitigator,² that the defendant was nineteen years of age at the time of the crime (very little weight), and found thirteen nonstatutory mitigators, giving all but two little or very little weight.³ The trial court rejected the nonstatutory mitigator that Parker was not the actual triggerman. Finding that the aggravating circumstances outweighed the mitigating circumstances, the trial court agreed with the jury's recommendation and imposed the death penalty. On appeal Parker raises numerous issues, each of which we address below.⁴

I. MOTION TO SUPPRESS

Prior to his initial trial, Parker filed a broad motion to suppress seeking to exclude "all written and oral statements made by the Defendant to police authorities or other agents of the State of Florida." After an evidentiary hearing, the trial court denied the motion.

On direct appeal to this Court, Parker argued that the trial court erred in denying his motion to suppress. Specifically, Parker asserted that a taped statement given to police on May 5, 1982, was taken in violation of his Fifth Amendment right to remain silent until he was able to speak with an attorney. We concluded that the trial court did not err in denying the motion to suppress. See Parker, 476 So.2d at 137-38

. On appeal from the denial of his federal habeas petition, the Eleventh Circuit Court of Appeals concluded that the May 5 statement was taken in violation of Parker's Fifth Amendment right to counsel. See Parker v. Singletary, 974 F.2d 1562, 1574 (11th Cir.1992). However, the Eleventh Circuit held that the admission of this statement was harmless error as to both the guilt and penalty phases. Id. at 1576-77.

Prior to the penalty phase at issue in this appeal, Parker filed another motion to suppress, focusing primarily on his May 7 statement to Detective Powers. Parker argued that the May 7 statement resulted directly from the May 5 statement found to be inadmissible by the Eleventh Circuit, see id. at 1574, and that because the police initiated the May 7 interview, the United States Supreme Court's decision in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), decided after Parker's original trial, required suppression of the May 7 statement.⁵ The State did not challenge the Eleventh Circuit's ruling that the May 5 statement was taken in violation of Parker's Fifth Amendment right to counsel and did not seek to introduce this statement during the new penalty phase. However, the State filed a motion to quash Parker's motion to suppress, asserting that Parker was barred from raising the issue of the admissibility of the May 7 statement because he had previously filed a motion to suppress this statement and had not pursued the issue on appeal. The trial court granted the motion to quash and never reached the merits of Parker's motion to suppress his May 7 statement.

After oral argument in this appeal, we relinquished jurisdiction to the trial court with directions to conduct an evidentiary hearing on the motion to suppress and thereafter to issue an order on the merits of the motion. We reached the conclusion that the trial court should have considered the merits of the motion to suppress, for two related reasons. First, because this was a new penalty phase, the "clean slate" principle discussed in Preston v. State, 607 So.2d 404, 408-09 (Fla.1992), applied. Second, and contrary to the State's assertion, because the admissibility of Parker's May 7 statement had never been litigated and decided in any prior appeals, Parker was not barred from litigating this issue under either the doctrine of law of the case or res judicata.

We recently clarified the scope of both res judicata and law of the case, stating:

[T]he doctrines of the law of the case and res judicata differ in two important ways. First, law of the case applies only to proceedings within the same case, while res judicata applies to proceedings in different cases. Second, the law of the case doctrine is narrower in application in that it bars consideration only of those legal issues that were actually considered and decided in a former appeal, while res judicata bars relitigation in a subsequent case or action not only of claims raised, but also claims that could have been raised.

Florida Dep't of Transp. v. Juliano, 801 So.2d 101, 107 (Fla.2001) (emphasis supplied) (citations omitted). Clearly, law of the case does not apply to Parker's claim in that, as the State admits, the issue of the admissibility of the May 7 statement was never actually considered and decided by this Court in Parker's first appeal. Further, even if law of the case applied, "[t]his Court has the power to reconsider and correct erroneous rulings in exceptional circumstances and where reliance on the previous decision would result in manifest injustice." State v. Owen, 696 So.2d 715, 720 (Fla.1997).

As to res judicata, the key question is...