Sireci v. State

• Decision Date: 19 September 1991
• Docket Number: No. 76087,76087
• Citation: 587 So.2d 450
• Parties: Henry Perry SIRECI, Appellant, v. STATE of Florida, Appellee. 587 So.2d 450, 16 Fla. L. Week. S623
• Court: Florida Supreme Court

Page 450

587 So.2d 450

Henry Perry SIRECI, Appellant, v. STATE of Florida, Appellee.

No. 76087.

587 So.2d 450, 16 Fla. L. Week. S623

Supreme Court of Florida.

Sept. 19, 1991.

Rehearing Denied Nov. 4, 1991.

James B. Gibson, Public Defender and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen. and Barbara C. Davis, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Henry Sireci appeals the sentence of death imposed upon him for the 1976 murder of Howard Poteet. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const.

We detailed the facts of the murder in Sireci v. State, 399 So.2d 964 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982), in which we affirmed Sireci's conviction and original death sentence. Sireci went to Poteet's used car lot armed with a wrench and knife. The defense argued that Sireci intended to take car keys so that he could steal an automobile later. According to the State, Sireci's intent was to rob Poteet at that time. While the two were in the victim's office, Sireci hit the victim with the wrench and stabbed him numerous times during the course of a struggle. Poteet sustained approximately fifty-five stab wounds and numerous lacerations and abrasions. His neck was slit. Sireci took the victim's wallet.

This Court affirmed the denial of Sireci's first 3.850 motion. Sireci v. State, 469 So.2d 119 (Fla.1985), cert. denied, 478 U.S. 1010, 106 S.Ct. 3308, 92 L.Ed.2d 721 (1986). The trial court held an evidentiary hearing on Sireci's second 3.850 motion and ultimately ordered a new sentencing hearing on grounds that two court-appointed psychiatrists conducted incompetent evaluations at the time of the original trial. Upon resentencing, the jury recommended the death penalty by a vote of eleven to one and the trial court again imposed the death penalty. ¹

Sireci raises six claims of error in this appeal. First, he alleges that the trial judge abused his discretion in refusing to waive the jury sentencing recommendation. Prior to the resentencing proceeding, Sireci submitted a waiver of the jury sentencing recommendation to which the State objected. The trial court refused to grant the waiver. Sireci argues on appeal that the waiver should have been granted because, given the time lapse between the conviction and the resentencing proceeding, the jury would necessarily know of and be prejudiced by the prior death sentence.

The law is clear that a trial judge "upon a finding of a voluntary and intelligent waiver, may in his or her discretion either require an advisory jury recommendation, or may proceed to sentence the defendant without such advisory jury recommendation." State v. Carr, 336 So.2d 358, 359 (Fla.1976). See also Palmes v. State, 397 So.2d 648, 656 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981). Regardless of the jury's recommendation, the trial judge must conduct an independent review of the evidence and make his or her own findings regarding aggravating and mitigating factors. Spaziano v. Florida, 468 U.S. 447, 466, 104 S.Ct. 3154, 3155-56, 82 L.Ed.2d 340 (1984). The trial judge here noted that if he found the jury was influenced by improper considerations, he had "the ability and the duty to lessen the reliance upon the jury's verdict." Even if the jury may have surmised that the defendant had been previously sentenced to death, we find no abuse of discretion in the trial court's refusal to waive an advisory jury sentencing recommendation.

While admitting that under the circumstances of this case the jury could not help but perceive that Sireci had been on death row, Sireci also claims that the trial court erred in refusing to grant a mistrial after the prosecutor made reference to this fact. The trial court had issued a pretrial order prohibiting the State from revealing that Sireci had been sentenced to death previously for the Poteet murder. Dr. Lewis, one of Sireci's mental health experts, had conducted a study of death row inmates, including Sireci. The following interchange occurred during the State's cross-examination of Dr. Lewis:

Q. [Prosecutor]: Maybe it's not a paranoid ideation, is that correct?

A. [Dr. Lewis]: Maybe it's not, but I would put my reputation on the fact that it is. It is--I mean it's demonstrated. It's one of the research criteria.

Q. It's what you expected to find of this man on death row, isn't that correct?

The trial court denied defense counsel's motion for mistrial but cautioned the prosecutor to avoid reference to Sireci's death row status.

Determination of whether substantial justice warrants granting a mistrial is within the discretion of the trial judge. Dufour v. State, 495 So.2d 154, 163 (Fla.1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1332, 94 L.Ed.2d 183 (1987); Marek v. State, 492 So.2d 1055, 1057 (Fla.1986). The prosecutor's remark violated the pretrial order. Nevertheless, prosecutorial improprieties must be viewed in the context of the record as a whole to determine if a new trial is warranted. State v. Murray, 443 So.2d 955, 956 (Fla.1984). Although a prior sentence should not play a role in resentencing proceedings, we have found no error where the record reflected that the impact of merely mentioning a prior death sentence was negligible. Teffeteller v. State, 495 So.2d 744 (Fla.1986).

The prosecutor's reference to the prior death sentence was minimal. He did not indicate that a prior jury had recommended the death penalty. See id. at 747. Moreover, our analysis of a later colloquy with the court outside the presence of the jury leads us to conclude that the comment was inadvertent. In addition, the trial judge noted that any "halfway intelligent" juror would determine that Sireci had been sentenced to death previously for this crime. This was true for two reasons. First, most of the defense psychiatric information was accumulated while Sireci was on death row. Drs. Lewis and Pincus, mental health experts for the defense, had examined Sireci as part of a study of death row inmates. Although Dr. Lewis sought to avoid reference to death row during her testimony, it was impossible to eliminate such reference completely. Dr. Lewis testified during direct examination that she had conducted studies of death row inmates along with Dr. Pincus and others. She indicated that she had met Sireci as part of a study of men who had committed murder and that he was one of eight or ten individuals interviewed who were incarcerated in Starke. Jurors easily could have concluded from Dr. Lewis's direct examination that Sireci was part of the death row study. Second, given the time lapse between the conviction and the sentencing proceeding, it is likely that the jury would have suspected, if not known, that a death sentence had been imposed previously.

Based upon our review of the record, we find no abuse of discretion in the trial court's refusal to grant a mistrial. The prosecutor's reference to the prior death sentence did not prejudice the defendant or play a significant role in the resentencing proceeding so as to warrant a mistrial. Teffeteller, 495 So.2d at 747.

Sireci also claims reversible error in the trial court's refusal to poll the jurors concerning their use of the knowledge of the prior death sentence. We note only that the Evidence Code prohibits judicial inquiry into the emotions, mental processes, or mistaken beliefs of jurors. Sec. 90.607(2)(b), Fla.Stat. (1989); State v. Hamilton, 574 So.2d 124, 128 (Fla.1991).

Next, Sireci claims that the trial court erred in failing to find the four statutory mitigating factors asserted by the defense. The defense attempted to establish that Sireci was under the influence of extreme mental or emotional disturbance; that he acted under extreme duress or the substantial domination of another; that he lacked the capacity to appreciate the criminality of his conduct or that his capacity to conform his conduct to the requirements of law was substantially impaired; and that the crime was affected by his age at the time of its commission. The trial court concluded that no statutory mitigating factors were established but found the existence of nonstatutory mitigating evidence.

The decision as to whether a particular mitigating circumstance is established lies with the judge. Reversal is not warranted simply because an appellant draws a different conclusion. Stano v. State, 460 So.2d 890, 894 (Fla.1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 863 (1985). Further, it is the trial court's duty to resolve conflicts in the evidence, and that determination should be final if supported by competent, substantial evidence. Id.

The evidence was clearly insufficient to establish that Sireci acted under extreme duress or the substantial domination of another or that his age of twenty-seven played any part in the murder. There was conflicting testimony on the remaining statutory mitigators. Mental health experts agreed that Sireci suffered from brain damage which probably occurred when he was involved in an automobile accident at the age of sixteen. However, the experts...