Reese v. State, 82119
| Decision Date | 20 March 1997 |
| Docket Number | No. 82119,82119 |
| Citation | 694 So.2d 678 |
| Parties | 22 Fla. L. Weekly S150 John Loveman REESE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Nancy A. Daniels, Public Defender and Nada M. Carey, Assistant Public Defender, Second Judicial Circuit, Tallahassee, for Appellant.
Robert A. Butterworth, Attorney General and Barbara J. Yates, Assistant Attorney General, Tallahassee, for Appellee.
We have on appeal the judgment and sentence of the trial court imposing the death penalty upon John Loveman Reese. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.
Reese was charged with first-degree murder, sexual battery with great force, burglary with assault, and armed kidnapping for the rape and strangulation of Sharlene Austin on January 28 or 29, 1992. The kidnapping charge was dropped before trial, and Reese was found guilty of all remaining counts. He was sentenced to death following a jury recommendation of eight to four.
The evidence presented at trial reveals that Reese dated Jackie Grier on and off for seven years; the victim had been Grier's best friend for approximately two and a half years. Reese was extremely possessive and disliked Austin because of the amount of time Grier spent with her. Grier and Austin had begun making trips to Georgia where, unknown to Reese, both had met new boyfriends. They returned from the last of these trips on Monday, January 27, 1992. On Wednesday of the same week, Grier was concerned because she could not reach Austin by phone, and she and a neighbor went to Austin's house and entered through the unlocked back door. They found Austin lying face down in the bedroom, covered with a sheet. She had been strangled with an electrical extension cord that was doubled and wrapped around her neck twice with the ends pulled through the loop.
Reese was questioned by police after his palm print was found on Austin's waterbed. He confessed to breaking into her home around noon on Tuesday, January 28. He said he waited for her to return home because he wanted to talk to her about Grier, but when he saw Austin coming home from work around four o'clock he got scared and hid in a closet. Reese said that after Austin went to sleep on the sofa, he came out of the closet but panicked when she started to move. He grabbed her around the neck from behind and dragged her into the bedroom. He raped her, then strangled her with the extension cord. He was arrested after his confession.
Reese was indicted on May 14, 1992, and tried March 22-25, 1993. He testified on his own behalf at the guilt phase, detailing an intensely troubled childhood and his emotional relationship with Grier. He claimed to have killed Austin out of panicked emotion. Grier also testified. She claimed that Reese never liked Austin, and said that she (Grier) had in fact broken up with Reese before Austin was killed. Two detectives testified that Reese responded "yes" when he was asked if he had decided to hurt the victim while waiting for her to come home.
At the penalty phase, the state presented no additional evidence; Reese called several family members, former teachers, and a psychologist. The jury recommended the death penalty by a vote of eight to four. The judge found three aggravators: cold, calculated, and premeditated ("CCP"); heinous, atrocious, or cruel ("HAC"); and committed in the course of a sexual battery and a burglary. He found one nonstatutory mitigator--no significant criminal history--but found that the mitigator, along with other proposed nonstatutory mitigation, was of minimal or no value. He accepted the jury's recommendation and imposed the death penalty. Reese raises nine issues on appeal. We affirm the conviction but remand to the trial court for entry of a new sentencing order.
As to the guilt phase, Reese argues 1) error in finding that no Richardson violation 1 occurred when a witness testified that Reese made a statement as to the time of the homicide, and the statement had not been furnished to defense; 2) error in restricting cross examination of Grier as to Reese's confession where the state had already opened the door by mentioning another part of Reese's confession to her on direct; and 3) error in refusing Reese the opportunity to testify on redirect examination about his offer to plead where the state had already opened the door on cross.
As to the penalty phase, he argues 1) error both in instructing on and finding CCP; 2) error in giving an unconstitutional CCP instruction; 3) error in failing to expressly evaluate, find, and weigh unrebutted mitigation; 4) disproportionality of sentence; 5) unreliability of sentence due to improper, misleading and inflammatory closing arguments by the state; and 6) unconstitutionality of the HAC instruction given.
Reese first argues that the judge erred in finding that no Richardson violation occurred when a witness testified that Reese made a statement as to the time of the homicide, and the statement had not been furnished to defense. The state attorney in opening statement said, "[Reese] was asked what time did [the victim] go to sleep, and he said, oh, about ten o'clock that night." After the court had heard from four witnesses, the state proffered testimony from Detective Thowart. During the proffer, the defense attorney made the following statement:
Your Honor, my reason for asking for a moment here is during opening statements, [the state attorney] indicated that Mr. Reese had made a statement that I had not been made aware of, and that was that the actual killing of Ms. Austin occurred somewhere around ten o'clock p.m. that day. This written statement certainly doesn't reflect that.
After ascertaining that the relevant portion of the statement had not in fact been provided to defense counsel, the judge immediately held a Richardson hearing.
This item of information was not mentioned in the notes of either of the two detectives present for the statement. It was not brought out on deposition of either of the two detectives. Upon examination of Detective Thowart, Thowart said, "I do not see anything about ten o'clock, but that is the time he told us, Your Honor." He continued:
I don't remember that question, but if he had [asked me about the time], I would have told the truth, and I knew it was ten o'clock.... We asked what time it was, he said around ten. We said how long did you wait, he said he waited about an hour.
Later, the following exchange took place:
The Court acknowledged that the time-frame was important to the defense case:
After questioning Detective Thowart and asking him to review the notes made during the interview with Reese, and after examining the substance of Thowart's deposition, the judge held that there was no Richardson violation:
[W]hen you're deposed for a lengthy period of time about a conversation that took place for an hour to an hour-and-a-half, no one, certainly the law does not expect anyone to have a specific, verbatim memory of such conversations, and it appears in my reading of that part of the deposition that the officer was mostly concentrating on his partner's notes at the end of the deposition to make sure everything in the notes--so I find that there is no Richardson violation here.
It does not appear that there was any intent to hide this information from the defense. Certainly, the defendant's statements should be divulged as specifically as is humanly possible. It certainly doesn't appear to be any intent by the police officers to hide this one small detail of his testimony. And it appears that the fact that it wasn't mentioned in the deposition is a matter of innocence as far as their intent goes.
So I find that there is no Richardson violation. And I will deny the defendant's request to exclude that part of Officer Thowart's testimony.
We agree with the court's result denying exclusion of the testimony, but we disagree with the analysis. See Thompson v. State, 565 So.2d 1311, 1315-17 (Fla.1990) ().
In Richardson we held that where there is a violation of a procedural rule prescribed by this Court, reversal of a conviction is only necessary if the record discloses that noncompliance resulted in prejudice or harm to the defendant. Richardson, 246 So.2d at 774. The trial court does have the discretion to determine if non-compliance would result in prejudice or harm to a defendant, but to do so it must make "an adequate inquiry into all of the surrounding circumstances." Richardson, 246 So.2d at 775.
We adopted language stating that such an inquiry should cover "at least such questions as whether the state's violation was inadvertent or wilful, whether the violation was trivial or substantial, and most importantly, what effect, if any, did it have upon the ability of the defendant to properly prepare for trial." Richardson, 246 So.2d at 775 (quoting Ramirez v. State, ...
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