Pope v. State

• Decision Date: 13 June 1996
• Docket Number: No. 81797,81797
• Citation: 679 So.2d 710
• Parties: 21 Fla. L. Weekly S362 Horace Melvin POPE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 710

679 So.2d 710

21 Fla. L. Weekly S362

Horace Melvin POPE, Appellant, v. STATE of Florida, Appellee.

No. 81797.

Supreme Court of Florida.

June 13, 1996.

Rehearing Denied Sept. 5, 1996.

Wendy E. Friedberg of Aidif & Friedberg, Orlando, for Appellant.

Robert A. Butterworth, Attorney General and Carol M. Dittmar, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

We have on appeal the judgment of conviction and sentence of death imposed on Horace Melvin Pope. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

After midnight on February 17, 1992, Alice Mahaffey told police officer Ronald Wright, paramedic Venetia Giger, and neighbor William Tice, that Horace Pope had beaten her, stabbed her, and kicked her in the head repeatedly with his cowboy boots. She added that he took her car keys, left her for dead, and drove away in her car with his eighteen-year-old niece Marsha Pope. After Pope and Marsha left, Alice managed to drag herself across the street to William Tice's residence where she lay slumped on his sofa, covered in blood until the police and paramedics arrived. She died in the hospital eight days after surgery for her wounds and an ensuing infection.

Marsha was an eyewitness to the attack by Pope which she described as follows: She was alone in her parents' home on February 16, 1992, when Pope and Alice, both alcoholics, arrived in Alice's car. Both had been drinking and while Alice was placing beer in the kitchen, Pope and Marsha were left alone in the living room. Pope, at this time, told Marsha that he was going to kill Alice for her car and money. Thinking Pope was drunk and not to be taken seriously, Marsha retired to her bedroom, leaving Pope and Alice in her parents' bedroom.

Later, Pope summoned Marsha and forced her to watch him beat, kick, and stab Alice. Marsha witnessed Pope beat Alice's head against the sink and wall while Alice was sitting on the toilet after which he pushed her off the toilet and stomped on her head and back with his boots. While Alice was lying face down on the floor, Pope straddled and stabbed her. When Marsha tried to escape, Pope threatened to kill her if she attempted to leave. Pope then left Alice lying on the bathroom floor and went to the kitchen to wash his hands, after telling Marsha to see if Alice was dead. In order to prevent Pope from inflicting further violence, Marsha confirmed that Alice was dead. Marsha then left with Pope in Alice's car. After being threatened again with death, Marsha persuaded Pope to drop her off at a friend's house at which time she immediately called 911. After dropping Marsha off, Pope drove to the trailer where his brother's family was staying and attempted to borrow money. Upon being refused, he made the following statement: "Well, I've killed a woman in your house and your bathroom's in a mess." Pope then drove away in Alice's car and was apprehended by the police at which time he made two spontaneous statements. He said calmly, "I hope I killed the bitch" and, as the officers were discussing Alice's condition, Pope said loudly, "I hope I didn't go through all that for nothing. I hope she's dead as a doornail."

Pope was found guilty of first-degree murder and robbery and acquitted of kidnapping. The court found two aggravating circumstances, two statutory mitigating circumstances, and three nonstatutory mitigating circumstances. ¹ Pope was sentenced to death for the homicide and to a consecutive life term for robbery with a deadly weapon. He raises nine issues on appeal. ²

First, we address Pope's contention that the trial court erred by permitting William Tice and Officer Ronald Wright to testify regarding Alice's statements to them. We conclude that the trial judge did not err in admitting the statements as excited utterances. We reiterate the following essential elements from our decision in State v. Jano, 524 So.2d 660, 661 (Fla.1988). To fall within the excited utterance exception to the hearsay rule as set forth in section 90.803(2), Florida Statutes (1993), there must be an event startling enough to cause nervous excitement; the statement must be made before there is time to contrive or misrepresent; and the statement must be made while the person is under the stress of excitement caused by the event. Alice made her statements to Tice within a minute after she saw him. She was lying on his couch covered in blood, slurring her speech, moaning, and having trouble breathing. Tice called the police immediately and they arrived within the next two to three minutes. Before the paramedics arrived ten to fifteen minutes later, Officer Wright interviewed Alice. During this brief interview, Alice made a statement to Wright which we also find to be an excited utterance. In both cases, Alice's statements were made while she was under the stress of excitement caused by the attack. The circumstances belie the suggestion that she had time to contrive or misrepresent. Her statements merely identified Pope as her attacker and described the attack.

Pope argues that the court erred in permitting the emergency medical technician, Venetia Giger, to testify relative to the statements Alice made in her presence. The court admitted these statements as dying declarations. Mary Witcher, the paramedic with Giger at the time Alice made the statements, heard Alice repeat "I'm going to die" at least two dozen times.

Statements made concerning the cause or circumstances of what the declarant believes to be his or her impending death are admissible as hearsay exceptions. § 90.804(2)(b), Fla. Stat. (1993). Although it is not required that the declarant make express utterances that she knew she was going to die, the court should satisfy itself "that the deceased knew and appreciated [her] condition as being that of an approach to certain and immediate death." Henry v. State, 613 So.2d 429, 431 (Fla.1992). The trial court's determination that the predicate for the dying declaration was sufficient should not be disturbed unless clearly erroneous, and Pope has not demonstrated error. See id. We find that the court's admission of the statements as dying declarations was reasonable based on the totality of the circumstances.

Pope next asserts that the trial court erred by admitting inflammatory photographs of the bloody bathroom where the stabbing occurred, autopsy photographs, and the victim's bloody clothes. We disagree. The test for admissibility of photographic evidence is relevancy rather than necessity. Nixon v. State, 572 So.2d 1336, 1342 (Fla.1990), cert. denied, 502 U.S. 854, 112 S.Ct. 164, 116 L.Ed.2d 128, 116 L.Ed.2d 128 (1991). The photographs of the bathroom and the clothes were relevant to establish the manner in which the murder was committed and to assist the crime scene technician in explaining the condition of the crime scene when the police arrived. The autopsy photographs were relevant to illustrate the medical examiner's testimony and the injuries he noted on Alice. Relevant evidence which is not so shocking as to outweigh its probative value is admissible. Having viewed the photographs, we cannot say the trial judge abused her discretion. See Jones v. State, 648 So.2d 669, 679 (Fla.1994), cert. denied, --- U.S. ----, 115 S.Ct. 2588, 132 L.Ed.2d 836 (1995).

As his third issue, Pope maintains that the trial court should not have admitted evidence that several months prior to the murder, Pope battered Alice. ³ We agree that evidence of the battery should not have been admitted, but we conclude that the error was harmless. The state's theory was that Pope killed Alice shortly after his release from jail because he blamed her for his incarceration resulting from the battery. Originally, the court ruled that the battery and arrest were admissible under section 90.404(2), Florida Statutes (1993), ⁴ to prove motive and premeditation. The judge reversed her ruling and admitted evidence of the battery but not the arrest or incarceration after concluding that the additional evidence was too prejudicial. The fact that Pope battered Alice several months prior to her murder is of slight relevance when the jury is not told of the ensuing arrest and incarceration. Without knowledge of the arrest or incarceration, the prior battery does not show malice, premeditation, or that Pope's motive for killing Alice was vengeance. The isolated fact that Pope battered Alice in the past is irrelevant to the issue of her murder.

Generally, "[t]he admission of improper collateral crime evidence is 'presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt of the crime charged,' " Peek v. State, 488 So.2d 52, 56 (Fla.1986)(quoting Straight v. State, 397 So.2d 903, 908 (Fla.), cert. denied, 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 418 (1981)), but the error here satisfies the harmless-error test set forth in State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). When applying a harmless-error analysis, "[t]he question is whether there is a reasonable possibility that the error affected the verdict." Id. If the reviewing court can say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmless. Id. From our review of the record, we find no reasonable possibility that the admission of the prior battery on Alice affected the verdict in either the guilt or penalty phase of the trial; thus we conclude the error was harmless.

Although Pope did not request a limiting instruction, he argues that the court committed fundamental error by failing to instruct the jury that the battery was relevant solely to prove motive. We disagree. In order to be entitled to a limiting instruction, a defendant must request such an instruction. No request was made on Pope's behalf, therefore the trial judge did not commit error. ⁵

Pope asserts next that the trial court erred in refusing to instruct the jury regarding...