Pomeranz v. State

• Decision Date: 24 December 1997
• Docket Number: No. 82467,82467
• Citation: 703 So.2d 465
• Parties: 23 Fla. L. Weekly S8 Stuart Leslie POMERANZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 465

703 So.2d 465

23 Fla. L. Weekly S8

Stuart Leslie POMERANZ, Appellant, v. STATE of Florida, Appellee.

No. 82467.

Supreme Court of Florida.

Dec. 24, 1997.

Richard L. Jorandby, Public Defender and Richard B. Greene, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for Appellant.

Robert A. Butterworth, Attorney General and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, for Appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Stuart Leslie Pomeranz. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

On April 19, 1992, Pomeranz and Lyndon Kinser robbed the A & M Discount Beverage Store, located in Martin County, Florida. Kinser waited in the car while Pomeranz went into the store and pulled a gun on the cashier, Ranjit Patel. Patel tried to grab the gun and Pomeranz shot him three times. Pomeranz then went behind the counter and shot Patel two more times at close range while Patel lay collapsed on the floor. Pomeranz grabbed $51, fled the store, and dove into the front passenger window of the car as Kinser drove by.

Kinser, the State's main witness against Pomeranz, pled guilty to first-degree murder and received a life sentence without possibility of parole for twenty-five years. At trial, Pomeranz's defense counsel argued that it was Kinser who committed the murder. The jury found Pomeranz guilty of first-degree murder and robbery with a firearm. At the sentencing phase, the jury recommended a life sentence for Pomeranz by a vote of eight to four. The trial court overrode the jury's recommendation and imposed the death penalty on Pomeranz for the murder of Patel and imposed a consecutive life sentence for the armed robbery.

In its sentencing order, the trial court found that the following aggravators applied to Pomeranz: (1) a previous conviction for a violent felony based on a prior armed robbery conviction; (2) the murder was committed during the commission of a robbery and the murder was committed for pecuniary gain (combined as one aggravator); (3) the murder was committed for the purpose of avoiding or preventing a lawful arrest; and (4) the murder was committed in a cold, calculated, and premeditated manner without pretense of legal or moral justification. The trial court also found that the following non-statutory mitigators applied: (1) Pomeranz was a good nephew and son; (2) Pomeranz could have been mentally abused by his stepfather; (3) Pomeranz could have been neurologically misdiagnosed as a child; and (4) Pomeranz had displayed behavior that could be more akin to one of less maturity than his chronological age. However, the trial court concluded that none of these mitigating factors could reasonably tip the scales against the aggravators that applied to the case and that when the aggravators and mitigators were weighed in a reasoned and deliberate process, any reasonable person using this weighing process could not conclude that there were any reasonably convincing mitigators established that outweighed the aggravating circumstances.

The Guilt Phase

Pomeranz raises seventeen guilt-phase issues in this appeal, only seven of which require discussion. ¹ We first address Pomeranz's claim that the trial court erred in excluding a prior inconsistent statement made by Kinser during a prior trial for a May 1, 1992, robbery committed by Kinser and Pomeranz. Pomeranz contends that Kinser committed perjury when he testified at the trial of the case at bar that he and Pomeranz had planned the May 1 robbery on the day it was committed. At the trial for the May 1 robbery, Kinser had testified differently, stating that the robbery had been planned about a week or so before it was actually committed. When Pomeranz attempted to use this prior inconsistent statement to impeach Kinser, the trial court found that the defense had committed a discovery violation in failing to notify the State that it intended to use Kinser's prior testimony and thus ruled that the prior statement could not be used as impeachment evidence.

Pomeranz asserts that he had no duty to notify the State of the impeachment evidence because the same state attorney's office conducted both the trial for the May 1 robbery and the trial below and that the State was therefore already in possession of Kinser's prior inconsistent testimony. Pomeranz contends that the outcome of the trial below possibly might have been different if the jury had known that Kinser had lied either to it or to the jury in the robbery trial.

Without addressing the merits of this issue, we hold that if error was committed by the trial court, it was harmless beyond a reasonable doubt. The question of whether the May 1 robbery was planned in advance or on the same day that it was committed was immaterial to the issue of Pomeranz's guilt in the instant case. In light of all of the other extensive impeachment testimony heard by the jury regarding Kinser's credibility problems, including his extensive criminal record, his involvement with Patel's murder, and his $3000 a week cocaine habit, there is no reasonable probability that not allowing the jury to hear Kinser's inconsistent testimony regarding the May 1 robbery contributed to the verdict. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

Pomeranz next claims that the trial court conducted an inadequate Richardson ² hearing and improperly allowed the State to use prior deposition testimony to impeach a court witness. The State moved to have Elizabeth Hernandez Calderone called as a court witness because she had given numerous inconsistent statements regarding what she witnessed at the A & M Discount Beverage Store on the night of the murder. ³ During the State's questioning of Calderone at the trial below, she testified that she saw Pomeranz next to a telephone outside the A & M Discount Beverage Store and Kinser inside the store on the night of the murder. However, in a deposition conducted by Kinser's attorney prior to Pomeranz being charged with Patel's murder, Calderone had stated that it was Pomeranz she saw in the store that night. The State used this prior deposition testimony to impeach Calderone's testimony at trial.

Pomeranz asserts that the State committed a discovery violation when it failed to provide him with a copy of Calderone's deposition prior to trial and that the trial court conducted an inadequate Richardson inquiry into whether a discovery violation occurred and improperly allowed the State to use the deposition to impeach Calderone. See Richardson, 246 So.2d at 775.

While we agree with Pomeranz that a discovery violation occurred when the State failed to provide him with a copy of Calderone's deposition, we do not agree that reversible error resulted when the trial court conducted an inadequate inquiry into the violation and then allowed the State to use the deposition. "In determining whether a Richardson violation is harmless, [we] must consider whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense." State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995). A defendant is procedurally prejudiced

if there is a reasonable probability that the defendant's trial preparation or strategy would have been materially different had the violation not occurred. Trial preparation or strategy should be considered materially different if it reasonably could have benefited the defendant. In making this determination every conceivable course of action must be considered. If the reviewing court finds that there is a reasonable possibility that the discovery violation prejudiced the defense or if the record is insufficient to determine that the defense was not materially affected, the error must be considered harmful. In other words, only if the appellate court can say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation can the error be considered harmless.

Id. at 1020-21.

Pomeranz's only assertions regarding how his trial strategy would have been different had he known that the State intended to use Calderone's deposition were that he might have objected to having her called as a court witness or might have redeposed her. We cannot see how these potential changes in trial tactics would have resulted in a more favorable outcome. Consent of both parties is not a prerequisite for having a witness called as a court witness. See, e.g., Brumbley v. State, 453 So.2d 381, 384 (Fla.1984) (decision to call witness as a court witness rests within discretion of the trial court "on motion of a party on ground that the witness has become uncooperative, or because the moving party does not wish to vouch for the credibility of the witness, or because the party previously calling the witness has been surprised at trial by the testimony given" (citations omitted)). Moreover, defense counsel had the same opportunity as the State to lead and cross-examine Calderone and therefore could have elicited an explanation from her regarding her inconsistent testimony. In any event, whether Pomeranz was inside the store or immediately outside the store several minutes before the murder made little difference. Because the State's failure to provide Pomeranz with Calderone's deposition did not materially hinder Pomeranz's defense, the trial court's failure to adequately inquire into whether a discovery violation occurred and the admission of this evidence was harmless beyond a reasonable doubt.

We next address Pomeranz's claim that the trial court erred in admitting evidence that he robbed Mark Meachum at gunpoint on May 1, 1992, as collateral crime evidence. After the trial in the case at bar was completed, the May 1 armed robbery conviction was reversed for a new trial, ⁴ and on remand, Pomeranz pled guilty to grand theft. Pomeranz asserts that when his conviction was reduced to grand theft, a lesser offense, he was...