Savino v. State

• Decision Date: 08 November 1989
• Docket Number: No. 87-0955,87-0955
• Citation: 555 So.2d 1237,14 Fla. L. Weekly 2567
• Parties: 14 Fla. L. Weekly 2567 Joseph SAVINO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1237

555 So.2d 1237

14 Fla. L. Weekly 2567

Joseph SAVINO, Appellant, v. STATE of Florida, Appellee.

No. 87-0955.

District Court of Appeal of Florida,

Fourth District.

Nov. 8, 1989.

Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol Cobourn, Asst. Atty. Gen., West Palm Beach, for appellee.

DELL, Judge.

Joseph Savino appeals from his conviction of third-degree murder. Appellant raises four points on appeal. He contends he did not waive his presence, or acquiesce to or ratify counsel's waiver of his presence during a witness's testimony or during the court's response to a jury question. Next, he contends the trial court erred when it failed to suppress the oral and recorded statements he gave to the police because he did not make a knowing and intelligent waiver of his Miranda rights. He also contends the trial court erred when it denied his request for a special instruction on insanity caused by the long and continued use of intoxicants. Finally, he contends the court erred when it refused to admit evidence that his wife admitted that she had killed her daughter several years earlier. We reverse and remand for a new trial.

Appellant's six-year-old stepson, Johnny Griffin, died from multiple injuries caused by blunt trauma to the abdomen. Appellant gave an oral statement at his home and a recorded statement at the police station. He stated that he had been drinking two and three days before the victim died, and that on several occasions during that time, he had hit the victim in the face and the stomach. Appellant moved to suppress the statements on the ground that he was too intoxicated or mentally disturbed to have knowingly and intelligently waived his Miranda rights. The trial court found that the police properly advised appellant of his rights, and that his intoxication or mental disturbance did not prevent him from making a knowing and intelligent waiver of his rights.

First, we hold the trial court did not err when it denied appellant's motion to suppress his statements. Appellant does not contend the police obtained his confession by use of coercion or other misconduct. He relies only upon evidence which he argues supports his claim of diminished mental capacity. The record contains sufficient evidence to support the trial court's conclusion that appellant freely, voluntarily, intelligently and knowingly waived his Miranda rights.

Next, the trial court permitted the state, after it had rested, to call a witness out of turn who identified the victim and testified that she baby-sat for the victim between 1983 and 1985. Appellant was not present in the courtroom during the witness's testimony. When appellant's counsel moved to strike the testimony, the prosecutor offered to repeat the questioning in appellant's presence, but his counsel waived his presence. On appeal, the state argues that appellant's counsel's waiver should be dispositive of this issue or that appellant's absence should be construed as harmless error. We disagree.

Notwithstanding counsel's waiver of appellant's presence, the record must demonstrate that appellant made a knowing, intelligent and voluntary waiver of his right to be present at essential stages of the trial. See Turner v. State, 530 So.2d 45 (Fla.1987), cert. denied, 489 U.S. 1040, 109 S.Ct. 1175, 103 L.Ed.2d 237 (1989). This record does not show that appellant's counsel advised him of his right to be present or that the court questioned appellant concerning his possible ratification of counsel's waiver. Although appellant remained silent when his counsel waived the state's offer to repeat the testimony of the witness, his silence cannot be construed as acquiescence or ratification of his counsel's action. See Francis v. State, 413 So.2d 1175 (Fla.1982), cert. denied, 474 U.S. 1094, 106 S.Ct. 870, 88 L.Ed.2d 908 (1986). We find merit in appellant's argument that while the witness's testimony may not have been crucial to the outcome of the case, his absence during the testimony deprived him of his right to confront her and to confer with his counsel during cross examination. We cannot construe, as the state suggests, appellant's absence during the witness's testimony as harmless error.

Appellant's counsel again waived appellant's presence when the court answered a jury question on third degree murder. We reject the state's argument that appellant's absence during the court's answer of the jury's question should be held as harmless error because the jury asked only a legal question. The state misplaces its reliance on Meek v. State, 487 So.2d 1058 (Fla.1986). We find nothing in this record which would permit us to conclude that counsel informed appellant of the jury's question or that appellant acquiesced to or ratified waiver by counsel of his presence during the court's response to the question. Therefore, we hold that appellant's absence from the courtroom constituted reversible error. See Smith v. State, 453 So.2d 505 (Fla. 4th DCA 1984), review denied, 462 So.2d 1107 (Fla.1985).

We also hold that the trial court erred when it denied appellant's request for an instruction on the effect of the long and continued use of intoxicants. The appellant requested the court to instruct the jury that:

The law recognizes insanity superinduced by the long and continued use of intoxicants so as to produce a fixed and settled frenzy or insanity, either permanent or intermittent.

Florida Standard Jury Instruction 3.04(b), the general instruction on insanity directs a trial judge, when drugs or alcohol are involved, to the case of Cirack v. State, 201 So.2d 706 (Fla.1967). In Cirack, the Supreme Court recognized that insanity could be superinduced by the long and continued use of intoxicants. Appellant presented sufficient expert testimony to support the reading of this instruction in conjunction with the trial court's general charge on insanity.

Finally, we hold that the trial court erred when it excluded evidence concerning appellant's wife's alleged admission that in 1978 she killed her daughter. The state made a motion in limine to prohibit appellant from presenting testimony concerning statements made by his wife, Carolyn Savino, that she had caused the death of her daughter. The trial court granted the motion, but stated that appellant's wife could take the stand and testify about the death of her daughter if she wished. When appellant called her as a witness, she invoked the Fifth Amendment and refused to testify. Appellant sought to present this evidence by a witness who would have testified that his wife had admitted the act and by a videotape deposition of the medical examiner who conducted the autopsy on the child. In the deposition, the medical examiner testified that the child died as the result of a skull fracture caused by a blunt instrument and that the trauma was consistent with child abuse.

Appellant argues that the trial court should have admitted the testimony as Williams Rule evidence. Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). Section 90.404(2), Florida Statutes (1987), codified the rule enunciated in Williams:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant...