Rogers v. State

• Decision Date: 09 July 1987
• Docket Number: No. 66356,66356
• Parties: 12 Fla. L. Weekly 368, 12 Fla. L. Weekly 457 Jerry Layne ROGERS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 526

511 So.2d 526

12 Fla. L. Weekly 368, 12 Fla. L. Weekly 457

Jerry Layne ROGERS, Appellant, v. STATE of Florida, Appellee.

No. 66356.

Supreme Court of Florida.

July 9, 1987.

Rehearing Denied Sept. 2, 1987.

James B. Gibson, Public Defender, Seventh Judicial Circuit, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for appellee.

BARKETT, Justice.

Jerry Layne Rogers appeals his conviction for first-degree murder and sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm both the conviction and sentence.

On December 19, 1983, Rogers was indicted for the first-degree murder of David Eugene Smith. The evidence at trial revealed that Rogers and Thomas McDermid, the state's chief witness, rented a car on January 4, 1982, in Orlando. By his own admission, Rogers personally signed the rental agreement. ^* After picking up two .45 caliber semi-automatic handguns, the pair drove to St. Augustine and "cased" an A & P and a Winn-Dixie grocery store. Deciding to rob the Winn-Dixie, Rogers and McDermid pulled into an adjoining motel parking lot, donned rubber gloves and nylon-stocking masks and proceeded inside. There, McDermid ordered the cashier, Ketsey Day Supinger, to open her register. When Supinger had difficulty complying, Rogers told McDermid to "forget it," and the two men ran out of the store toward their rental car. Rogers, however, trailed somewhat behind. During this interval, McDermid said he heard an unfamiliar voice behind him say, "No, please don't." These words were followed by the sound of one shot, a short pause, and two more shots.

On the drive back to Orlando with McDermid, Rogers allegedly said he had seen a man, the victim, slipping out the back of the store during the attempted robbery. At trial, McDermid testified that Rogers said the victim "was playing hero and I shot the son of a bitch."

Smith, the victim, in fact had been shot three times, once in the right shoulder and twice in the lower back. Police investigators later found three .45 caliber casings within six feet of the body. At trial a pathologist testified that two of the three shots, those to the back, caused severe damage to the lungs and a fatal loss of blood. In the pathologist's opinion, these two shots struck the victim while he was face-forward against a hard surface such as a pavement, resulting in characteristic exit wounds.

Following the murder, Rogers and McDermid were identified as suspects in a subsequent grocery-store robbery in Winter Park. Police obtained a warrant to search Rogers' home and there seized a number of firearms, a .45 caliber handgun and several boxes of spent .45 caliber shell casings that Rogers intended to reload for reuse. Analysis by firearms experts indicated that the casings found near the victim's body had not been fired by the gun taken from Rogers' home. However, sixty-nine of the spent casings seized by police had been fired by the same weapon that killed Smith.

At trial, the jury found Rogers guilty of murder and recommended imposition of the death penalty. The trial court found five separate aggravating circumstances and no mitigating factors and sentenced Rogers to death.

Rogers raises thirteen issues on appeal. Rogers first contends that the failure to provide written instructions for the jury to take into their deliberations was reversible error. This issue already has been resolved adversely to appellant in Delap v. State, 440 So.2d 1242 (Fla.1983), cert. denied, 467 U.S. 1264, 104 S.Ct. 3559, 82 L.Ed.2d 860 (1984). Florida Rule of Criminal Procedure 3.400 gives the trial court discretion to provide or not to provide written instructions. We recognize the efficacy of assisting the jury in understanding its task, and, although sending written instructions to the jury should be encouraged, we find no error here.

Second, Rogers questions whether the trial judge improperly excluded testimony meant to impeach McDermid based on an alleged reputation for dishonesty. We find no error because Rogers failed to provide the necessary predicate for such testimony. Extrinsic evidence of reputation is properly admitted when both the witness and the object of the testimony are members of the same general community of neighbors and associates. Reputation testimony is also permissible when members of that community are demonstrably unavailable if the trial court finds that the witness has sufficient knowledge to give a reliable assessment based on more than mere personal opinion, fleeting encounters, or rumor. See Hamilton v. State, 129 Fla. 219, 176 So. 89 (1937). Here, the only predicate in the record was the following colloquy:

Q: Now did you have the means to know the reputation for the truth and veracity of Thomas McDermid in his community?

A: Except what I've heard, you know, from people. Personally I didn't, because I didn't associate with him anymore than I had to.

The trial court did not err in finding that this was an insufficient basis for the admission of reputation testimony.

Similarly, Rogers argues that the court improperly excluded (1) medical records showing that a state witness, James Lancia, was a mentally unbalanced individual who suffered from delusions and hallucinations during his jail stay; (2) evidence that McDermid threatened to implicate members of Rogers' family in criminal conduct; and (3) the written version of a St. Augustine police bulletin issued the night of the murder. We find no error, since this evidence was cumulative. The trial court has discretion to exclude evidence that does no more than corroborate other evidence already before the jury. Sims v. State, 444 So.2d 922 (Fla.1983), cert. denied, 467 U.S. 1246, 104 S.Ct. 3525, 82 L.Ed.2d 832 (1984). In this case, Lancia's medical records were cumulative of evidence presented by both Lancia himself and the medical supervisor of the jail. Lancia testified that he suffered from depression and took medication for this condition. Carol Guemple, the medical supervisor, testified that Lancia had been receiving psychotropic medication to control his hallucinations and delusions during his jail stay. Similarly, McDermid freely admitted on the stand that he had made threats against members of Rogers' family. Finally, although the written police bulletin was not admitted into evidence, its contents were read to the jury.

In the same vein, Rogers argues that the trial court erred in limiting the testimony of John Brigham, an expert in the accuracy of eyewitness identifications. We disagree. This precise issue was considered in Johnson v. State, 393 So.2d 1069 (Fla.1980). In Johnson, this Court ruled that the trial court's exclusion of an expert witness who would have testified about the fallibility of eyewitness perception and identification did not constitute an abuse of discretion. Moreover, in this case appellant was permitted to ask his expert hypothetical questions concerning an eyewitness' ability to make an accurate identification several months or years after the fact.

As his third point on appeal, Rogers contends the trial court erred in not dismissing the indictment because it was issued by a grand jury whose members included Robert Supinger, father-in-law of the Winn-Dixie cashier on duty when the store was robbed. We note that at the time of the indictment this relationship did not exist, since the marriage between the cashier and Supinger's son did not occur until later. Even assuming arguendo that this grand juror was biased and participated in returning the indictment, the petit jury's subsequent guilty verdict rendered any resulting error presumptively harmless. Porter v. Wainwright, 805 F.2d 930, 941 (11th Cir.1986). Rogers has not presented any evidence to defeat this presumption, such as impropriety in constituting the grand jury or serious prosecutorial misconduct during grand jury proceedings. See id. at 941-42. Nor can we independently discern any resultant harm from the record. Accordingly, any error arising from the indictment was harmless.

Fourth, Rogers urges us to overturn his conviction based on alleged prejudice caused by the state's delay of nearly a year in obtaining its indictment. During this period, argues Rogers, the memories of those familiar with the St. Augustine murder faded and two alibi witnesses, John and Laura Norwood, allegedly disappeared. We reject this contention as mere speculation unsupported by any substantial evidence and find no error, since Rogers has failed to meet his burden of showing actual prejudice. In reaching this conclusion, we approve the test applied by the First District in Howell v. State, 418 So.2d 1164 (Fla. 1st DCA 1982) (adopted from United States v. Townley, 665 F.2d 579 (5th Cir.1982)). When a defendant asserts a due process violation based on preindictment delay, he bears the initial burden of showing actual prejudice. Rogers has not met this burden through the speculative allegations made here of faded memories or the purported disappearance of alibi witnesses whose significance or existence was doubtful. See Howell, 418 So.2d at 1170. If the defendant meets this initial burden, the court then must balance the demonstrable reasons for delay against the gravity of the particular prejudice on a case-by-case basis. The outcome turns on whether the delay violates the fundamental conception of justice, decency and fair play embodied in the Bill of Rights and fourteenth amendment. See Townley, 665 F.2d at 581-82. Because Rogers has not met his initial burden of proof, we conclude that he has suffered no prejudice proscribed by the constitution.

As his fifth argument, Rogers contends that the trial court erred in admitting evidence of collateral crimes, specifically of two grocery-store robberies by Rogers and McDermid subsequent to the St. Augustine murder. We disagree. The trial court,...