Rogers v. State

• Decision Date: 09 May 2003
• Docket Number: No. 5D01-3211.,5D01-3211.
• Citation: 844 So.2d 728
• Parties: Justin Lee ROGERS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

844 So.2d 728

Justin Lee ROGERS, Appellant, v. STATE of Florida, Appellee.

No. 5D01-3211.

District Court of Appeal of Florida, Fifth District.

May 9, 2003.

James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and David H. Foxman and Patrick W. Krechowski, Assistant Attorneys General, Daytona Beach, for Appellee.

TORPY, J.

Appellant was convicted of first-degree murder and sentenced to life in prison. Appellant raises one issue on appeal: whether the trial judge erred in permitting the State to reopen its case in the middle of closing argument for the purpose of introducing a previously suppressed confession. We reverse.

On January 5, 2000, Thomas Rogers, Appellant's uncle, died from five gunshot wounds. Appellant confessed to deputies that he had killed his uncle while robbing him. The confession was obtained during a custodial interrogation. Despite numerous requests by Appellant for a lawyer, sheriff's deputies continued to interrogate him until he confessed by saying, "I just pulled the gun out; I shot, man! I closed my eyes and I shot!" During the remainder of the confession, Appellant described in detail what had occurred and emphasized on numerous occasions that he did not "mean to" kill his uncle. The State and Appellant stipulated that the confession should be suppressed. Based thereon, the trial judge entered an order suppressing the confession.

The State proved its case against Appellant primarily through the testimony of three co-defendants, all acquaintances of Appellant who had accepted negotiated "plea bargains" in exchange for their agreements to provide truthful testimony in the trial of Appellant. All of the co-defendants testified that they went with Appellant to his uncle's house the night of January 5, 2000, and each acknowledged some degree of culpability. Christy Larsen, for example, testified that she drove Appellant and the other co-defendants to the victim's house on the night of the murder, knowing that Appellant had a gun and having reason to believe that Appellant intended to rob the victim. Shortly after Larsen saw Appellant approach the victim's home, she heard the gunshots. Appellant returned to the vehicle and told her to leave quickly, and she drove Appellant from the scene of the murder. Later, Larsen rented a motel room using the victim's money and snorted cocaine which had been purchased using the victim's money. Nick Northfield, another co-defendant, assisted Appellant in attempting to borrow a gun from Larsen's neighbor, Ed Spagenski. He rode in the vehicle to the victim's house on the night of the murder and admittedly assisted in discarding the murder weapon after the murder. Nick Haggermeister admitted to having assisted Appellant in stealing the gun to be used in the robbery from Spagenski, admitted that he knew Appellant's intended purpose for procuring the gun, and assisted Northfield in discarding the murder weapon in a wooded area in Sanford.

All of the co-defendants acknowledged that they initially lied to police concerning their knowledge of the murder. Later, however, they changed their stories and implicated Appellant as the murderer. All three testified that they waited in the car while Appellant shot and robbed the victim, and that Appellant had confessed to them.

The State also presented the testimony of Justin Hall and Kelly Snyder, friends of the co-defendants, who testified that Appellant had admitted to them that he had shot his uncle, and James Greeley, who testified that Appellant had told him around Christmas of 1999 that he intended to rob and kill his uncle. Greeley was an acquaintance of Appellant for some time before the murder.

Ed Spagenski testified that Appellant tried to borrow his gun the day before the murder. Spagenski refused. The next day Spagenski discovered that his apartment had been burglarized, and his gun was missing. Although the murder weapon was not recovered, it was established without dispute that the gun that fired the fatal shots was the same gun that had been stolen from Ed Spagenski.¹

The defense strategy was to suggest that the co-defendants had falsely implicated Appellant so as to minimize their own liability, and that one of the co-defendants could have been the shooter. During cross-examination of the co-defendants, defense counsel elicited information about the plea bargains made with the State to establish a motivation to lie. Defense counsel further elicited from each co-defendant the fact that they had repeatedly lied to police about their knowledge of the robbery/murder. Finally, each co-defendant was asked, without objection, whether they (the co-defendants) had in fact committed the murder, a fact which each denied.

After the State rested, the defense rested without offering evidence. Defense counsel then delivered his first closing. He argued that the proof was consistent with the co-defendants having robbed and killed the victim and having blamed Appellant to minimize their liability. He pointed out that the gun was taken from Larsen's neighbor, then was wrapped in Northfield's shirt after the murder and hidden in a place suggested by Haggermeister. He further argued that Northfield and Larsen had used the dead man's money to buy drugs and rent a room. These facts, which defense counsel called "hard evidence," were what counsel argued tended to prove that the co-defendants had committed the murder. Conversely, argued defense counsel, no "hard evidence" implicated the defendant. All of these arguments were consistent with the theory of defense presented during opening and during cross-examination of the State's witnesses.

The State never objected to defense counsel's closing argument. Instead, after the first closing was concluded, the State asked the Court to permit it to reopen its case for the purpose of playing Appellant's recorded confession. The State argued that defense counsel's closing argument had opened the door for introduction of the otherwise inadmissible confession. After hearing argument on this issue, although acknowledging that it was "out on a limb," the trial court authorized the State to reopen its case and play the previously suppressed confession. While the confession was being published to the jury, and at the point on the taped confession where Appellant admitted shooting his uncle, Appellant, apparently provoked by the playing of the tape, exclaimed as follows:

Turn it off, man! Turn it off! God damn, man, turn the fucking thing off! I didn't mean to do it, man! I didn't mean to kill my uncle! You-all mother fuckers got what you wanted!

After Appellant's courtroom outburst, the court ordered a recess during which time a Motion for Mistrial was made by Appellant but was denied. Thereafter, the trial resumed. During defense counsel's second closing, he argued that Appellant was guilty of no more than second-degree murder. The jury found Appellant guilty as charged, and the court adjudicated him guilty and sentenced him to life in prison without the possibility of parole.

The State concedes, as it conceded below, that Appellant's confession was obtained in violation of the rights guaranteed to him by the United States Constitution. The State argues, nevertheless, that because defense counsel made argument that he knew to be false in fact, the admission of the confession was necessary to prevent Appellant from misleading the jury by suppressing the truth. We disagree.

Although the search for truth is the goal in all legal controversies, established rules must be followed or the truth might be suppressed. Application of the exclusionary rule, for example, usually results in the suppression of evidence, either physical or testimonial, that might disrupt the truth-seeking objective of a jury trial. On balance, however, the courts have reasoned that the suppression of truth is justified when important constitutional rights are to be vindicated. There are limits, however, beyond which a defendant may not go without losing the shield of the exclusionary rule. For example, in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Court recognized that a defendant may not use the shield of the exclusionary rule to permit the defendant to "affirmatively resort to perjurious testimony in reliance on the government's disability to challenge his credibility." Id. at 225, 91 S.Ct. 643. Thus, the Court held that a statement procured in violation of Miranda² may nevertheless be used to impeach a testifying defendant in the same manner as any other prior inconsistent statement. The Court reasoned that use of an otherwise voluntary confession, even though obtained wrongfully by police, was justified to avoid a greater wrong, to-wit: perjury.

The State suggests that the Court's reasoning in Harris applies here, and this court should extend Harris to permit the suppressed confession to be used to rebut statements made by an attorney in closing argument. No court has thus far extended Harris in this manner, and we believe to do so is erroneous.

There is a marked contrast between perjured testimony and statements made by an attorney during closing. Perjured testimony is evidence; statements made by an attorney during closing are not. Perjury is a crime and, if not exposed by the tools of the adversary process, might lead to an injustice. Although improper closing argument, left unchecked, might result in an injustice, appropriate rules exist to prevent improper argument or to temper its impact.³ We do not believe, therefore, that the use of a confession procured in violation of the Constitution is justified to rebut a misleading closing argument under the reasoning of Harris.⁴

Even assuming that use of an impermissibly obtained confession is justified to rebut improper argument by counsel, the facts of this case do not justify use of the confession because...