Scott v. State, 72091

• Decision Date: 30 May 1991
• Docket Number: No. 72091,72091
• Parties: Bradley P. SCOTT, Appellant, v. STATE of Florida, Appellee. 581 So.2d 887, 16 Fla. L. Week. S416
• Court: Florida Supreme Court

Page 887

581 So.2d 887

Bradley P. SCOTT, Appellant, v. STATE of Florida, Appellee.

No. 72091.

581 So.2d 887, 16 Fla. L. Week. S416

Supreme Court of Florida.

May 30, 1991.

Rehearing Denied July 26, 1991.

Dennis J. Rehak, Fort Myers, for appellant.

Robert A. Butterworth, Atty. Gen., and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Bradley P. Scott appeals his conviction for first-degree murder and his resulting death sentence. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla.Const. We find that we must reverse and vacate the conviction and sentence because the seven-year, seven-month delay in the prosecution of this cause constituted a violation of due process and because the circumstantial evidence was insufficient to support the conviction.

The relevant facts of this case are as follows. On Thursday, October 12, 1978, a twelve-year-old girl, Linda Pikuritz, left her home in Charlotte County at around 3:45 p.m., wearing blue jeans, a yellow T-shirt, red and white tennis shoes, and a shell necklace. That afternoon several witnesses who knew the girl saw her on her bicycle around her neighborhood and at the local "Li'l General" convenience store, where she bought a package of bubble gum. She did not return home that day, and the police were called at 9:00 p.m.

A body which appeared to be that of a young female was discovered at the scene of a fire at approximately 11:57 p.m. on that same day, October 12. At the scene police officers found a shell necklace, a leather visor, a pair of underpants, a red and white tennis shoe, and a package of bubble gum. Linda Pikuritz's name was written on the shoe, her sister-in-law's name was on the visor, and the underpants were similar to those which she wore. The medical examiner concluded that the body was consistent with that of a girl approximately twelve years old, that smoke and soot inhalation had caused the victim's death, that she was unconscious at the time of death, and that there was no evidence of trauma or injuries not caused by the fire. Further, there was no evidence of a sexual assault. On October 13, the day after the murder, Linda Pikuritz's bicycle was found hidden in some bushes next to a road near the Li'l General store.

The Charlotte County Sheriff's office originally investigated this murder in 1978-79. The appellant, Bradley P. Scott, was a primary subject of the investigation, but he had produced an alibi for the night of the murder that included details of where he and his girlfriend had been that evening. The state attorney declined to seek an indictment against Scott at that time, principally because of the alibi. An indictment was eventually filed against Scott in 1986, seven years and seven months after the murder. Scott was tried before a jury in 1988. Prior to the trial, the court heard and denied Scott's pretrial motion to dismiss the indictment, which was based on the assertion that he was prejudiced by the delay.

The state's entire case against Scott was based upon circumstantial evidence. One witness saw Scott on the evening of Linda Pikuritz's disappearance in his car speaking in a nonthreatening manner to a young girl on a bicycle. However, his identification of Scott took place almost seven years after his observation. Another witness testified that she had seen the victim at the Li'l General store with Scott during the early evening of the day of the murder, that they were both standing between the open car door and the car, and that their conversation appeared to be friendly. She did not identify Scott until seven years after the murder, even though she knew him, she had been introduced to him and had seen him on more than one occasion prior to the murder, and she had seen and recognized him at a restaurant less than an hour before she went to the Li'l General store. Also, a classmate and friend of the victim testified that she, another girl, and the victim met Scott at the Li'l General store on a number of occasions during the month preceding the murder; that he sometimes bought them beer and smoked marijuana with them; and that she was supposed to meet the victim, who was bringing marijuana, at the Li'l General store on October 12, but she did not go. The other friend confirmed these facts, adding that the girls had flirted with other older men, that other men bought them beer, and that Phil Drake was the girls' source for marijuana. Another witness testified that she had seen a girl resembling the victim talking to a man in a car resembling Scott's 100 yards down the street from the witness's home on the day of the murder. Her description of the car changed during the five years following the murder, but in 1984 she did pick out Scott's car as being similar to the one she saw. The place at which she saw the conversation between the girl and the man in the car was in close proximity to where the victim's bicycle was found the day after the murder.

In addition, Scott's employer and his employer's wife testified concerning statements that he made shortly after the day of the murder. Scott's employer's wife testified that Scott called her between 7:30 and 7:45 a.m. on the day after the murder to ask if he could pick up his pay check. She testified that, during the telephone conversation, Scott asked her if she had "heard about the little girl that had been murdered by [her] house." According to her testimony, she asked Scott "how he had heard such a thing," and he told her that "he had been stopped at a road block the night before." On cross-examination, she admitted having previously told a police investigator that Scott's statements were related to her by her neighbor, from whom Scott had picked up his check. Scott's employer testified that his neighbor, from whom Scott picked up the check, had told him that Scott had mentioned the murder of a little girl. He also stated that during a conversation with Scott on the Monday following the murder, Scott had told him that he was stopped by a police roadblock on the way to pick up his check. The employer testified that he and another employee had then driven with Scott to the point where Scott had said he was stopped by the police, but the other employee's testimony contradicted this assertion. The state presented evidence that no police roadblock had been set up at the location identified by the employer. In a statement to police seven years after the incident, but two years before trial, the employer had not remembered Scott's having taken him to the site of the roadblock. Also, cross-examination revealed several inconsistencies between the employer's testimony at trial and his earlier statements.

Finally, the state presented physical evidence, consisting of hair samples and a seashell, which were obtained from Scott's car one year after the murder. The vehicle was obtained from a used car dealer, who had bought the vehicle and had kept it on his lot for four months. Investigators obtained the hair samples from vacuum sweepings of the car after it was retrieved from the used car lot. No hair samples had been taken from the deceased victim. However, five years after the murder, the victim's mother gave the police a wool ski cap which had belonged to the victim. An expert testified that a hair from the car sweepings was indistinguishable from hairs retrieved from the wool cap and that, in his opinion, they were from the same person. The expert acknowledged on cross-examination that positive identification of a person from a hair sample is not possible. He also testified that an ideal sampling for comparison was "20 to 15 hairs." In this instance, the expert had only two hairs to do the comparison. In addition, the expert testified that he had compared all of the sweepings from the car to textile fibers that came from the victim's clothing and that the results of these comparisons had been negative.

The other item of physical evidence was a small seashell, or "dove" shell, which was found underneath the rear seat of Scott's car during the same search that produced the hair samples. The state's expert witness testified that the one dove shell could have fit into the broken shell necklace found at the scene of the murder, but he did not know if the necklace's monofilament line had been stretched. He also opined that the broken ends of the monofilament line were probably once joined and that they were broken, not cut. An importer of such necklaces testified that hundreds of thousands of such necklaces had been imported into this country by 1978 and that his main customer was a shell factory in nearby Fort Myers. Scott's mother testified for the defense that she had transported shells on many occasions in Scott's car, explaining that one of her hobbies was collecting and working with shells. She testified that she had transported shells, including dove shells, in cigar boxes and other containers in the back seat of Scott's car and that, on numerous occasions, these shells had spilled and fallen underneath the back seat.

At the conclusion of the state's presentation of evidence, Scott moved for a judgment of acquittal, contending that the state's case was circumstantial and failed to make a prima facie showing of guilt. The trial judge, in denying the motion, said And the Jury could take the view of this evidence in my opinion, that every reasonable hypothesis of innocence has been excluded, if they believe that the hair found in the car was that of Linda Pikuritz. And if they believe that the shell found in the car is the shell that came from that particular necklace that she wore the day she died.

Scott renewed this motion at the conclusion of his case, and the trial judge again denied the motion.

We find that, in considering the issues in this cause, we must also consider the evidence that was presented to the court before trial on Scott's motion to dismiss the indictment because of prejudicial delay. The record of that hearing reflects that...