Parker v. State, No. 76172

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM; GRIMES, C.J., OVERTON, SHAW, KOGAN and HARDING, JJ., and McDONALD
• Citation: 641 So.2d 369
• Parties: 19 Fla. L. Weekly S322 Dwayne Irwin PARKER, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 16 June 1994
• Docket Number: No. 76172

Page 369

641 So.2d 369 19 Fla. L. Weekly S322 Dwayne Irwin PARKER, Appellant,
v.
STATE of Florida, Appellee. No. 76172. Supreme Court of Florida. June 16, 1994.
Rehearing Denied Aug. 31, 1994.

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Richard L. Jorandby, Public Defender and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen. and Sara D. Baggett, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Dwayne Parker appeals his convictions of first-degree murder and other crimes and sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution, and affirm Parker's convictions and sentence.

Shortly after 11 p.m. on April 22, 1989, Ladson Marvin Preston and Dwayne Parker entered a Pizza Hut in Pompano Beach. Preston was unarmed, but Parker was armed with both a small pistol and a semi-automatic machine pistol. They forced the manager to open the safe at gunpoint, and then Parker returned to the dining room and robbed the customers of money and jewelry. Sixteen customers and employees were in the restaurant, and Parker fired six shots from the machine pistol during the robberies, wounding two customers.

While Parker was in the dining room, an employee escaped from the restaurant and telephoned 911 from a nearby business. Broward County deputies arrived shortly, and first Preston and then Parker left the restaurant. Deputy Killen confronted Parker in the parking lot, and Parker fired five shots at him with the machine pistol. Parker then ran into the street and tried to commandeer a car occupied by Keith Mallow, his wife, and three children. Parker fired the machine pistol once into the car and then fled.

When someone entered a nearby bar and told the patrons that the Pizza Hut was being robbed, several of those patrons, including William Nicholson, the homicide victim, left the bar and went out into the street. Tammy Duncan left her house when she heard shots and saw Parker, carrying a gun, running down the street with Nicholson running after him. She heard another shot and saw Nicholson clutch his midsection and then fall to the ground.

Eventually deputies Baker, Killen, and McNesby cornered Parker between two houses. McNesby's police dog subdued Parker, and he was taken to the sheriff's station. The machine pistol and some of the stolen jewelry were found on the ground when Parker was taken into custody. At the station money and more of the stolen jewelry were found on Parker.

The state charged Parker with one count of first-degree murder, two counts of attempted murder, and nine counts of armed robbery. Six shell casings were found inside the restaurant, five in the parking lot, and one in the street near where Nicholson fell. ¹ The state's firearms expert testified that all twelve shell casings, as well as the bullet recovered from Nicholson's body, had been

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fired from Parker's machine pistol. The theory of defense, however, was that the bullet was misidentified and that a deputy shot Nicholson. The jury convicted Parker as charged on the murder and armed robbery charges and of aggravated battery with a firearm on the two counts of attempted murder. The trial court agreed with the jury's recommendation and sentenced Parker to death.

As his first point on appeal, Parker argues that the court erred in denying his challenges for cause to sixteen prospective jurors, four of whom served on the jury. ² Parker challenged these people because at one time or another they indicated that they would always vote for the death penalty, did not believe that life imprisonment meant spending the rest of one's life in jail, expected the defense to demonstrate innocence, or were too nervous to concentrate on the case, among other things. The court and the prosecutor, however, posed additional questions to the prospective jurors after the challenges, and each indicated affirmatively that he or she would follow the law and instructions given by the court and base the decision on the instructions and the evidence. Parker used all of his original ten peremptory challenges and requested six more, stating: "There are at least six jurors that should be stricken, I believe, to give us a shot at a fair and impartial jury." Parker did not identify those six jurors, however. The court held that no cause had been shown, but, in its discretion, gave two more peremptory challenges to the defense. When the jury was seated, Parker renewed his challenges for cause to the four people left that he originally challenged. He has preserved the issue for review.

As we have long held, "the competency of a challenged juror is a mixed question of law and fact, the resolution of which is within the trial court's discretion." Hall v. State, 614 So.2d 473, 476 (Fla.), cert. denied, --- U.S. ----, 114 S.Ct. 109, 126 L.Ed.2d 74 (1993); Singer v. State, 109 So.2d 7 (Fla.1959). The test for determining that competency "is whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court." Lusk v. State, 446 So.2d 1038, 1041 (Fla.), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984); Foster v. State, 614 So.2d 455 (Fla.1992), cert. denied, --- U.S. ----, 114 S.Ct. 398, 126 L.Ed.2d 346 (1993); Pentecost v. State, 545 So.2d 861 (Fla.1989). In evaluating a juror's qualifications, the trial judge should evaluate all of the questions and answers posed to or received from the juror. Our study of the transcripts of the jury selection does not support Parker's allegations that an unqualified or biased juror failed to be excused for cause. Rather, questioning by the state and the court established that the prospective jurors that Parker challenged for cause met the Lusk standard for competency. We find no abuse of the judge's discretion in his denying the challenges for cause and no merit to this issue.

Parker also claims that the trial court committed reversible error by requiring the parties to exercise their peremptory challenges simultaneously in writing. He asked that each side be allowed to exercise its peremptories in turn and now argues that the method used by the trial court violated Ter Kuerst v. Miami Elevator Co., 486 So.2d 547 (Fla.1986). In that case we quashed the district court's approval of the simultaneous exercise of peremptory challenges that resulted in the excusal of only five prospective jurors when the two sides had six challenges between them. There is no claim here that either side was precluded from exercising all of the peremptories allotted to it and no harm from the method employed is demonstrated.

Parker also argues that three discovery violations occurred. First, he claims that a continuance should have been granted because of the state's tardy disclosure of two

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witnesses. ³ These witnesses' names were disclosed two weeks prior to trial, and counsel declared he was satisfied with discovery after deposing them and did not object when they testified. Therefore, we see no discovery violation, and no error in denying a continuance, regarding these two minor witnesses. See Duest v. State, 462 So.2d 446 (Fla.1985); Taylor v. State, 589 So.2d 918 (Fla. 4th DCA 1991).

Second, Parker claims that the court failed to conduct a Richardson ⁴ hearing when the state introduced an undisclosed grand jury report during re-direct examination of Deputy McNesby. Parker's theory of defense was that McNesby shot the victim and, on cross-examination, counsel quizzed him sharply about being the subject of a previous internal affairs investigation. On redirect the state introduced the grand jury report exonerating McNesby. Parker objected, claiming a discovery violation, and requested time to review the document. After reviewing it, counsel questioned McNesby again and made no further objection and did not request a Richardson hearing. These facts demonstrate no error and that this issue has no merit.

Third, Parker claims that the court erred by allowing into evidence photographs of the bullet removed from Nicholson that were different in coloring than the original prints. ⁵ Detective Cerat attended the autopsy and took the photographs that yielded the original and subsequent prints and testified that, because of the flash, the bullet in the original prints appeared white in the middle and gold at the edges. Parker cross-examined Cerat extensively about photography. The state later sought to introduce the new prints, and the court inquired about a discovery violation. After listening to the parties, the judge held that the two newest prints constituted an inadvertent discovery violation, but, since the defense had known about the color variation, that Parker had suffered no prejudice. We hold that the court conducted an adequate Richardson hearing as to the photographs and that Parker has demonstrated no reversible error regarding this issue.

As his next point, Parker claims that the court ignored his complaints about his counsel's competency. ⁶ Our review of the

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record shows that Parker was complaining about the criminal justice system, not about his counsel's abilities as an advocate, and that he did not request substitute counsel. Therefore, we find no merit to the instant argument.

Parker also argues that reversible error occurred regarding three guilt-phase instructions and the prosecution's argument. We disagree. This trial occurred before our amendment of the excusable homicide instruction in State v. Smith, 573 So.2d 306 (Fla.1990), and we find any error in the instruction given to have been harmless beyond a reasonable doubt. The court did not err in denying the specially requested instruction requiring jury unanimity as to whether a premeditated or felony murder was committed because special verdicts identifying the type of murder are not required. E.g., Haliburton v. State, 561 So.2d 248 (Fla.1990), cert. denied,...