Robinson v. State, 68971
| Decision Date | 28 January 1988 |
| Docket Number | No. 68971,68971 |
| Citation | 520 So.2d 1,13 Fla. L. Weekly 63 |
| Parties | 13 Fla. L. Weekly 63 Johnny ROBINSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
James B. Gibson, Public Defender and Christopher S. Quarles, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen. and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.
Johnny Robinson appeals his conviction for first-degree murder and sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. Finding no reversible error in appellant's conviction, we affirm the conviction. However, we reverse the sentence of death because of improper and prejudicial argument and testimony during the penalty phase and remand for a new sentencing hearing before a jury.
On August 12, 1985, the body of Beverly St. George was found in Pellicer Creek Cemetery in St. Johns County, Florida. An autopsy revealed that she had died early that morning as a result of two gunshot wounds, one to the forehead and one to the left cheek. The medical examiner testified that the wound to the forehead was caused by discharge of a gun that was six inches to two feet away from the skin; the other wound was caused by a gun in contact with the cheek when fired. The sequence of the wounds could not be determined. The medical examiner testified, however, that either shot would have killed her virtually instantly.
Johnny Robinson and Clinton Bernard Fields, a juvenile, were arrested for the murder on August 17. Upon arrest, Robinson waived his rights and gave a sworn statement to the police. According to his statement, Robinson and Fields left a party around 11:30 p.m. on the evening of August 11, 1985, and headed towards Orlando to visit Robinson's girl friend. On the way, they saw a car pulled off on the side of the road and stopped to help. The woman told them that she was tired and had stopped to rest. Robinson claimed that when the woman noticed that Robinson had a gun, she wished aloud that she had something similar so she could kill her ex-husband. She agreed to go with the two men in their car to Pellicer Cemetery. Once there, Robinson and Ms. St. George engaged in consensual sex on the hood of his car. During this activity, Robinson took the gun out of his pants and placed it on the hood. Afterwards, according to Robinson's statement, a scuffle ensued during which the gun went off accidentally, hitting Ms. St. George in the face. He said when he realized what had happened, he shot her again out of fear that no one would believe a black man had accidentally shot a white woman.
Fields testified against Robinson at trial and told a different story. According to Fields' testimony, when they stopped at the car on the side of the road, Robinson ordered Ms. St. George at gunpoint into the backseat of Robinson's car where he handcuffed her. Robinson ordered Fields to go through her purse but he refused. At Pellicer Creek Cemetery, Robinson raped Ms. St. George and then ordered Fields to do likewise. Fields further testified that after the sexual activity, Robinson expressed fear that the woman could identify him and his car and said that the only way she could not make an identification was if she were dead. Robinson then walked up to the victim and put the gun to her cheek. Fields turned his head, heard a shot, and later saw the woman on the ground. Robinson then shot her a second time. They drove to a desolate area where Robinson took the money from the woman's purse and then burned the rest of her property.
At the penalty phase, the state introduced evidence that Robinson was convicted of rape in Maryland in 1979, sentenced to ten years in prison, and was out on parole at the time of this incident. The defense presented Dr. Harry Krop, a clinical psychologist, who testified to six nonstatutory mitigating circumstances: that Robinson was severely intoxicated, resulting in impaired judgment; that Robinson was severely emotionally deprived because he had never known his mother; that he had been physically abused by the man (not his biological father) who had raised him; that he had been sexually abused by an uncle, resulting in a psychosexual disorder; and that he had suffered emotional trauma as a result of being incarcerated in an adult prison at the age of 13. Krop was of the opinion that Robinson, who frequently made extra money as a mechanic, originally stopped his car to help Ms. St. George. He was convinced that the subsequent sexual involvement and violence occurred as a result of poor judgment. At sentencing, additional testimony was presented from a guard at the St. Johns County Jail that Robinson was an outstanding inmate and was responsible on four occasions for quelling possible disturbances at the jail.
Appellant was found guilty of first-degree murder, kidnapping, armed robbery, and sexual battery. The jury, by a vote of 9 to 3, recommended death for the murder and the trial court, finding seven aggravating circumstances and one mitigating circumstance, sentenced Robinson to death.
Appellant argues that his conviction should be reversed because the trial court erred in: (1) conducting portions of the trial without appellant's presence, (2) denying appellant's motion for mistrial after evidence of a collateral crime was admitted in violation of a pretrial ruling, (3) refusing to give a requested instruction on the affirmative defense of voluntary intoxication, and (4) chastising defense counsel during closing argument in the presence of the jury. After reviewing the record, we find no reversible error.
Appellant was absent on two brief occasions during the trial. The first occasion was during the general qualification of the venire. 1 The trial judge presiding over Robinson's trial was qualifying the jury panel from which prospective jurors for the instant trial as well as for another trial would be chosen. Prior to qualifying the jurors, the following colloquy occurred:
Now, we're going to have you sworn, first of all, and Mr. Clerk, if you would swear the jurors touching upon their qualifications to serve as jurors in this Court.
(Thereupon, the prospective jury panel was sworn by the clerk.)
Thereafter, the trial court made the brief statutory inquiry required by sections 40.01 and 40.013(1) & (2), dispatched half of the venire to another courtroom for another trial, and called for the defendant:
(Thereupon, the following proceedings were had in open court.)
(Thereupon, the prospective jury panel was sworn by the clerk.)
Clearly, the defendant was present from the beginning of his trial. We do not reach the question of whether appellant validly waived his presence during the prior general qualification process because we do not find that process to be a critical stage of the proceedings requiring the defendant's presence. We see no reason why fundamental fairness might be thwarted by defendant's absence during this routine procedure. Thus, we find no merit to appellant's contention regarding this absence.
Appellant's second absence from the courtroom occurred during the penalty phase when Dr. Harry Krop testified about Robinson's childhood and psychosexual history which included incestuous homosexual experiences. This testimony was embarrassing to Robinson, and through counsel, he asked to be excused from the courtroom. Robinson concedes that the record reflects that he consulted with his attorney and had actual knowledge of trial counsel's waiver. The record also reveals that the court took great care to assure Robinson that he could return at any time. Clearly, appellant knowingly and voluntarily waived his presence at this stage of the proceedings, and thus we find no error. See Amazon v. State, 487 So.2d 8, 11 (Fla.), cert. denied, 479 U.S. 914, 107 S.Ct. 314, 93 L.Ed.2d 288 (1986).
Robinson's second claim involves an alleged violation of the trial court's in limine order suppressing testimony concerning a prior burglary. One week before Beverly St. George's murder, the weapon used to kill her was stolen in a burglary. The state had substantial evidence indicating that Robinson was the burglar, and thus had the murder weapon. To avoid the introduction of evidence of the prior burglary, the defense stipulated with the state that Robinson had fired the fatal shots. As a result of the stipulation, the state acquiesced in appellant's motion in limine. During the state's attempt to introduce a photograph of a weapon similar to the murder weapon, the following occurred:
MR. ALEXANDER (prosecutor): I'm going to show you what's been previously...
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