Rhodes v. State

• Decision Date: 05 May 1994
• Docket Number: No. 79627,79627
• Parties: 19 Fla. L. Weekly S254 Richard W. RHODES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 920

638 So.2d 920

19 Fla. L. Weekly S254

Richard W. RHODES, Appellant, v. STATE of Florida, Appellee.

No. 79627.

Supreme Court of Florida.

May 5, 1994.

Rehearing Denied July 11, 1994.

James Marion Moorman, Public Defender and Robert F. Moeller, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen. and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Richard W. Rhodes appeals his sentence of death, which was imposed after a new sentencing proceeding before a jury. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm.

Rhodes was convicted of the first-degree murder of a woman whose decomposing body was found in debris being used to construct a berm in St. Petersburg. The body was found on March 24, 1984. The debris came from the Sunset Hotel in Clearwater, which had been demolished on March 15, 1984. Manual strangulation causing the hyoid bone in the victim's neck to break was determined to be the cause of death. Although the only clothing found on the body was a brassiere around the victim's neck, there was no physical evidence of sexual battery.

On March 2, 1984, Rhodes had been stopped by the Florida Highway Patrol in Hernando County while driving a car registered to the victim. After the body was identified, Rhodes was questioned and ultimately arrested for the murder. During the various interviews, Rhodes made different and sometimes conflicting statements, ultimately claiming that the victim died accidentally when she fell from the third floor of the Sunset Hotel. During the original trial, three of Rhodes' former cellmates at the Pinellas County Jail testified that Rhodes admitted killing the victim.

The jury found Rhodes guilty of first-degree murder and recommended that he be sentenced to death. The trial judge followed the recommendation. On appeal, the conviction was affirmed. However, because of various penalty phase errors, the death sentence was vacated and the cause was remanded for a new sentencing proceeding before a jury. Rhodes v. State, 547 So.2d 1201 (Fla.1989).

On remand, Judge W. Douglas Baird presided over the proceedings. The newly empaneled jury recommended death by a vote of ten to two. Judge Baird, who did not preside over the original trial, followed the jury recommendation. In aggravation, the sentencing judge found: 1) Rhodes committed the murder while on parole; 2) Rhodes was previously convicted of a violent felony; and 3) the murder was committed while Rhodes was engaged in the commission of an attempted sexual battery. ¹ In mitigation, he found: 1) Rhodes' age of thirty at the time of offense; and 2) Rhodes' capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. ² Judge Baird refused to find that at the time of the murder Rhodes was under the influence of extreme mental or emotional disturbance ³ or that he was under extreme duress ⁴ due to alcohol consumption and his family history. However, he did find as nonstatutory mitigation that 1) as a child, Rhodes was abandoned by his parents; and 2) Rhodes never experienced a normal family life because as a child he was never placed in a social environment that could address his needs and he spent most of his life in state hospitals and prisons.

Although Rhodes' original conviction had been affirmed on appeal, on the same date that he issued the sentencing order, Judge Baird entered a second judgment of conviction for first-degree murder, dated March 20, 1992. Rhodes appeals the sentence of death and seeks to have the second judgment of conviction set aside.

Rhodes raises the following eight claims in this appeal: 1) the trial court erred by sua sponte excusing two prospective jurors; 2) the court erred in permitting the State to present hearsay evidence during the resentencing proceeding; 3) the court erred in permitting the State to interject irrelevant matters into the proceedings, including evidence of statements Rhodes made following his 1973 Oregon arrest, which were allegedly taken in violation of his constitutional rights; 4) the jury was misled regarding its role in the sentencing process and instructed to consider a nonstatutory aggravating factor; 5) the court erred in instructing the jury on and finding in aggravation that the murder was committed while Rhodes was engaged in committing an attempted sexual battery; 6) the court erred in failing to afford Rhodes an opportunity to be heard before he was sentenced; 7) death is not proportionately warranted in this case; and 8) one of the two written judgments for first-degree murder must be stricken.

Rhodes' first claim, dealing with the trial court's excusal of two prospective jurors for cause, was not adequately preserved below. During voir dire examination by the State both Jurors Blackham and Varellan expressed some difficulty in imposing the death penalty. Prior to examination by defense counsel, the court, sua sponte, sought to exclude the two prospective jurors because of their reluctance to impose the death penalty.

We have held that a trial court's refusal to allow defense counsel to attempt to rehabilitate death-scrupled jurors on voir dire violated the defendant's due process rights. O'Connell v. State, 480 So.2d 1284 (Fla.1985). However, unlike defense counsel in O'Connell, counsel in this case never asked to examine either juror. When asked if there was any reason the two jurors should not be excused for cause, defense counsel merely said that he would like to keep Ms. Blackham.

After counsel for Rhodes expressed a preference to keep Ms. Blackham on the jury, the court left it up to counsel to either question the two jurors and then let the State have another shot at them, or allow the jurors to be excused. However, after being given the option, defense counsel made no effort to rehabilitate either juror. Rather, counsel affirmatively acquiesced in the court's decision to excuse them, by stating, if you excuse them "for cause I can't say anything about it." Any claim that the court erred in refusing to allow the defense to examine Jurors Blackham and Varellan was waived by this apparent acquiescence in the court's decision to excuse the jurors for cause.

We also find no merit to Rhodes' second claim that hearsay was erroneously admitted during the resentencing proceeding. Because Rhodes failed to challenge the admission of much of the hearsay testimony addressed in this claim, those portions of the claim have been waived. Mordenti v. State, 630 So.2d 1080 (Fla.1994) (absent fundamental error, claims not raised at trial are procedurally barred); Steinhorst v. State, 412 So.2d 332 (Fla.1982) (same). Moreover, hearsay evidence is generally admissible in the penalty phase of a capital trial if the defendant is afforded a fair opportunity to rebut the evidence. Sec. 921.141(1), Fla.Stat. (1991). We need only address Rhodes' challenges to the admission of hearsay statements contained in a doctor's report and to the admission of the prior testimony of his former cellmates.

Rhodes maintains that reversible error occurred when Gary Wright, a former Oregon police officer who provided evidence of Rhodes' 1973 armed robbery conviction, was asked to testify about the contents of a doctor's report that was made at the time of the 1973 arrest. Counsel objected based on the defense's inability to rebut the report and moved for a mistrial. Although the objection was sustained, the motion for mistrial was denied. The defense's request for an instruction to disregard any reference to the doctor's report was also denied because the court did not think that Wright had made reference to the report, but rather had merely testified that he, the witness, thought Rhodes was faking.

A review of the record reveals that when asked what the doctor's report said about Rhodes' mental condition at the time of the 1973 offense Wright responded "that he did not appear to have a mental condition, as I recall. I don't have the particular report here with me today. But his actions on the 26th appeared to be fake to me." Thus, it appears Wright did testify, however briefly, regarding the contents of a report the defense had no opportunity to rebut. While this was error, the trial court did not abuse its discretion by denying the motion for mistrial. Breedlove v. State, 413 So.2d 1, 7 (Fla.) (mistrial not warranted where error does no substantial harm), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982). Although the error was not serious enough to warrant a mistrial, we agree that the requested instruction to disregard any reference to the report should have been given. See Id. (when error occurs, curative instruction generally should be given when mistrial is not warranted). However, we find the failure to give the instruction harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The reference to the report was very brief and, as noted by the trial court, Wright's answer dealt primarily with his impression of Rhodes' mental state at the time of Rhodes' arrest. It also does not appear that the doctor's report was relied on by the State.

Although defense counsel raised an initial objection to the admission of the prior testimony of the three former cellmates who testified at the original trial, he appears to have acquiesced in the trial court's decision to admit the testimony. Before the testimony was read to the jury, defense counsel raised the issue of whether the "jailhouse snitches" were truly unavailable for purposes of Florida Rule of Criminal Procedure 3.640(b), which addresses the admission of former testimony at a new trial. ⁵ Counsel raised the issue "for the record," but also expressly left the determination up to the court. The prosecutor then represented to the court that all three witnesses were in prison. Defense counsel agreed to allow ...