Smith v. State, 76491.

• Decision Date: 12 September 1994
• Docket Number: No. 76491.,76491.
• Citation: 641 So.2d 1319
• Parties: Derrick Tyrone SMITH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

641 So.2d 1319

Derrick Tyrone SMITH, Appellant, v. STATE of Florida, Appellee.

No. 76491.

Supreme Court of Florida.

June 9, 1994.

Rehearing Denied September 12, 1994.

James Marion Moorman, Public Defender and Paul C. Helm, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen. and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Derrick Tyrone Smith appeals his conviction of first-degree murder and his sentence of death for the murder of a cab driver in St. Petersburg. We have jurisdiction based on article V, section 3(b)(1) of the Florida Constitution.

This case is an appeal of Smith's conviction on retrial for the killing of cab driver Jeffrey Songer.¹ On retrial, the jury convicted Smith of first-degree murder and recommended death by a vote of eight to four. The trial judge followed the jury's recommendation and sentenced Smith to death. We affirm both the conviction and the death sentence.

At retrial, the evidence showed that Smith and a friend, Derrick Johnson, planned a robbery. To carry out the plan, Smith called a cab from a restaurant's pay telephone at 12:28 a.m. on March 21, 1983. Smith's fingerprint was later matched with a print found on that phone. Songer picked up Smith and Johnson outside the restaurant, then reported to his dispatcher that he was taking the fares to a nearby residential area. A few minutes later, Songer called in "D-16," which was a coded distress call. The dispatcher called the police and sent another cab driver to assist Songer. The driver found Songer lying face down about seventy feet from his cab, dead of a single shot in the back.

An eyewitness testified that he recognized Smith and Johnson. The witness also testified that he saw Smith aim and fire at Songer as the driver tried to run from the cab. Although authorities never found the murder weapon, several witnesses linked Smith to a .38-caliber pistol. Smith's uncle, with whom Smith had once lived, testified that a .38-caliber pistol was missing from his home. A lead fragment found on the victim matched the lead composition of bullets Smith's uncle obtained when he bought the gun. Other witnesses testified that they saw Smith with a gun during the day before the shooting. Johnson's testimony also placed a gun in Smith's possession.

One witness, a Canadian tourist, testified that Smith robbed his wife and him in their motel room about twelve hours after Songer was killed. The robbery victim's description of Smith's gun resembled the description of the gun Smith used in the shooting; however, it was never established that the gun was the same because the weapon was never found. Smith's fingerprints were found on a suitcase in the motel room, and, after Smith's arrest, police recovered a watch that the robbery victim identified as one Smith took.

Smith did not testify at his retrial. Larry Martin, who had been in the Pinellas County Jail with Johnson, testified that Johnson told him Smith did not shoot the cab driver.

Smith raises five issues that he argues require reversal of both his conviction and death sentence.² We disagree.

The first issue is whether the trial court violated Smith's constitutional right to effective assistance of counsel and self-representation by failing to inquire into his letter expressing dissatisfaction with court-appointed counsel. Several months before trial Richard Sanders, Smith's court-appointed counsel, moved to withdraw because Smith wanted to present testimony that Sanders believed was false.³ After a hearing, the trial court denied the motion. Neither the trial judge nor Sanders questioned Smith at the hearing, and Smith did not address the court.

On the same day the hearing concluded, however, Smith wrote the trial judge and asked her to "reconsider your decision to deny Sanders' motion to withdraw." Smith questioned Sanders' lack of experience in first-degree murder cases and wrote, "I don't want Richard Sanders representing me on this particular case." The trial judge responded by letter and told Smith that any communication with the court must be through his attorney. The record reflects that the trial judge communicated with Smith during the trial, but Smith never raised this issue again. Thus, Sanders continued to represent Smith.

Nonetheless, Smith claims the trial court committed reversible error by not conducting a hearing to determine whether there was reasonable cause to believe that Sanders was not rendering effective counsel and, if not, appointing a substitute. In addition, Smith argues that the trial court should have informed him of his right to self-representation and determined whether he knowingly and intelligently chose to waive his right to counsel. This claim is without merit.

Initially, we find the trial court was not required to conduct a hearing on Sanders' representation. Although Smith's letter raises concerns about Sanders, the letter was, in effect, a motion for rehearing. A trial court must conduct an inquiry only if a defendant questions an attorney's competence. Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.), cert. denied, 488 U.S. 871, 109 S.Ct. 185, 102 L.Ed.2d 154 (1988). Smith expressed dissatisfaction with Sanders, but did not question his competence.

Further, Smith's letter did not contain an explicit assertion of his right to self-representation, so a Faretta⁴ inquiry was not required. Raulerson v. Wainwright, 732 F.2d 803, 808 (11th Cir.), 736 F.2d 1528 (11th Cir.), cert. denied, 469 U.S. 966, 105 S.Ct. 366, 83 L.Ed.2d 302 (1984). Thus, the trial court was not obliged to inform Smith of this right and to determine whether he knowingly and intelligently chose to waive his right to counsel. We find no error on this issue.

The second issue Smith raises is whether the trial court erred in failing to conduct a Richardson⁵ hearing before admitting testimony about a defense witness's prior convictions. Larry Martin testified during the guilt phase that Derrick Johnson told him Smith did not shoot the cab driver. When defense counsel asked Martin how many times he had been convicted of a crime, Martin replied, "A couple times, I think. I'm not sure." The prosecutor then requested a bench conference, where he said Martin had eight prior felony convictions and the State planned to use them for impeachment purposes.

Smith asserts that the State violated a discovery rule because it had not previously disclosed the prior convictions. He argues that the trial court was required to conduct a Richardson hearing to determine whether the violation was trivial or substantial and whether the violation affected the defendant's ability to prepare for trial. The trial court found no discovery violation.⁶

We agree that there was no discovery violation. The State is required to produce for discovery the criminal records of any witness the prosecution intends to call at trial. Yanetta v. State, 320 So.2d 23, 24 (Fla. 3d DCA 1975); Comer v. State, 318 So.2d 419, 420 (Fla. 3d DCA 1975). The State has no duty, however, "to actively assist the defense in investigating the case." Hansbrough v. State, 509 So.2d 1081, 1084 (Fla. 1987); see also Medina v. State, 466 So.2d 1046, 1049 (Fla. 1985); State v. Crawford, 257 So.2d 898, 900 (Fla. 1972). This Court held that

the defense has the initial burden of trying to discover impeachment evidence, and the state is not required to prepare the defense's case. This is especially true when the evidence is as accessible to the defense as to the state.

Hansbrough, 509 So.2d at 1084 (citation omitted).

There was no assertion here that the records were not available. Thus, the trial court correctly determined that no discovery violation occurred. Even if the trial court erred, the error would have been harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986).

Third, Smith claims the trial court erred by admitting, over his objection, evidence that he committed an armed robbery about twelve hours after the homicide. Evidence of other crimes is admissible if it is relevant. Bryan v. State, 533 So.2d 744, 746 (Fla. 1988), cert. denied, 490 U.S. 1028, 109 S.Ct. 1765, 104 L.Ed.2d 200 (1989). The evidence revealed that Smith robbed a Canadian couple at gunpoint in their motel room. At trial the man's description of the gun was similar to the description of the gun used to kill Songer. Smith argues that the robbery was not relevant to any material fact in issue and that it shows only a propensity to commit robbery.

To the contrary, evidence of the robbery was relevant to proving Smith's motive to obtain money and to proving that he possessed the same gun in both offenses. The trial court instructed the jury to consider the evidence only insofar as it was relevant to show motive and possession of the gun. These were material facts in issue, and it was not error to admit testimony about the robbery.

Smith argues as his fourth issue that the trial court violated his constitutional rights by limiting cross-examination of a State witness. Melvin Jones, one of two eyewitnesses to the Songer murder, testified that he saw Smith shoot the cab driver. He further acknowledged that he had twenty-four prior felonies. On cross-examination, Jones testified that after he was arrested on outstanding warrants for various offenses, he wrote to the State Attorney and the Public Defender about who shot the cab driver. Jones testified that he did not receive a deal for his testimony, but that the prosecutor testified for him at sentencing. Jones said he did not think the prosecutor's testimony had helped very much. The record reveals that defense counsel had...