Snowden v. State, 82-1740

• Decision Date: 29 March 1984
• Docket Number: No. 82-1740,82-1740
• Citation: 449 So.2d 332
• Parties: James Michael SNOWDEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 332

449 So.2d 332

James Michael SNOWDEN, Appellant, v. STATE of Florida, Appellee.

No. 82-1740.

District Court of Appeal of Florida Fifth District.

March 29, 1984.

James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.

ORFINGER, Chief Judge.

A jury convicted James Michael Snowden of the crimes of third degree murder and grand theft. He appeals these convictions and separate sentences, contending that he should not have been separately sentenced for both crimes and that the court erred in sentencing him as an habitual felon.

Appellant was charged in separate counts with the first degree murder and armed robbery of Bruce Cundiff, Sr. The State presented the testimony of Henry Harrell, one of the participants in the robbery, who testified that with Snowden giving directions, Harrell, Snowden, and a third man, Snipes, drove to a dirt road near the Shrimp Boat Restaurant in Titusville where, according to Harrell, defendant Snowden and Snipes left Harrell with the car and headed across U.S. 1 toward the restaurant. Harrell drove the car around for a while and then, as he returned to the dirt road, he heard one gunshot and saw Snowden, followed by Snipes, running back to the car. According to Harrell, as soon as the two men were in the car, Snipes asked Snowden "Why?" and Snowden replied, "I didn't want to shoot him; I didn't mean to." The three men then returned to Snowden's house where they removed the money from the cash box, and then headed for Moore Haven, Florida. During the drive the men split the money between them.

On November 3, 1982, the jury returned its verdict, finding Snowden guilty of third degree murder on Count I and of grand theft on Count II. Following a sentencing hearing on December 9, 1982, at which time the court found Snowden to be an habitual offender, the trial court adjudicated Snowden guilty and sentenced him to thirty years on the third degree murder conviction and ten years on the grand theft conviction with credit for time served. The court retained jurisdiction over one-third of the appellant's murder sentence, and ordered that the two jail terms be served consecutively. Snowden now appeals arguing improper prosecutorial comment, double jeopardy, and error in the enhancement of his sentence.

Improper Prosecutorial Comment

Appellant contends that the prosecutor improperly commented on the exercise of appellant's right to remain silent and that such comment requires reversal. During the evidence phase of the trial, the State presented testimony that Snowden, while in a holding cell in the Titusville Police Department, overheard policemen talking about confiscating Snowden's shoes as possible evidence. The tread on the shoes was similar to the tread on a footprint found near the Shrimp Boat Restaurant, according to one of the police officers. Soon thereafter, Snowden ripped off the soles of his tennis shoes and tried to flush them down the toilet in his cell. Snowden did not testify at trial.

During closing arguments, the prosecutor, in referring to the significance of these actions by the defendant, made the following statement:

Why would a Defendant destroy his shoes if he knew there was no way any shoe impressions would be there at the scene? The answer is clearly this: he knew that the police wanted those shoes. He immediately suspected there was some kind of shoe impression. He proceeded to destroy his shoes and to render their use as evidence on one of them almost impossible, and on the second he was intercepted before he completed. And then at one of the Court appearances he told Bo Harrell, "I did it, flushed them down the toilet, tore the soles off because they had a shoe print." He thought they had a shoe print.

Ron Sinclair [police officer] says, yes, these match, correspond, but there are no distinctive characteristics.

But it's the reaction of the Defendant which cries in loud corroboration that Bo Harrell is telling the truth, that Margaret Wilkerson is telling the truth; because, ladies and gentlemen, there is no circumstance from which you can infer that the Defendant did this for any other reason than to conceal his guilt of the homicide of Bruce Taylor Cundiff. There is no inference.

I challenge the Defendant to present a reasonable inference to explain why the Defendant tore these soles off and flushed them down the commode at Titusville Police Department. [Emphasis supplied].

Defense counsel objected on the grounds that the last mentioned sentence was a comment on the accused's failure to testify. He then moved to strike the comments and asked for a curative instruction as well as a mistrial. The court denied these motions, finding that the prosecutor was merely commenting on the evidence and not on the defendant's failure to testify.

On appeal, however, appellant contends that the comments were not on the evidence but on the lack of testimony from the defendant to explain the reasons for his actions. The State responds that the prosecuting attorney was arguing an inference to be taken from an undisputed fact and was simply challenging the attorney for the defense to present a better one. Therefore, because the statement was merely an interpretation of the evidence, the State contends that the comment was not one on the defendant's failure to testify.

It is a well-established rule that comments on the accused's failure to testify violate the fifth amendment privilege against self-incrimination, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and that such a comment requires a reversal of the conviction without regard to the harmless error rule. Harris v. State, 438 So.2d 787 (Fla.1983); David v. State, 369 So.2d 943 (Fla.1979); Trafficante v. State, 92 So.2d 811 (Fla.1957). See also Fla.R.Crim.P. 3.250. Specifically, any comment which is "fairly susceptible" of being interpreted by the jury as referring to a criminal defendant's failure to testify constitutes reversible error without resort to the harmless error doctrine. David, Trafficante; Brazil v. State, 429 So.2d 1339 (Fla. 4th DCA 1983); Wilson v. State, 371 So.2d 126 (Fla. 1st DCA 1978).

When viewed in the context of the complete statement, the complained of language does not appear to us to be a comment on defendant's silence, but a comment on the evidence. A prosecutor may comment on the general lack of defense evidence, and such comment is not improper. White v. State, 377 So.2d 1149 (Fla.1979); Helton v. State, 424 So.2d 137 (Fla. 1st DCA 1982), pet. rev. denied, 433 So.2d 519 (Fla.1983); also see, Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980). Here, the State had opening and closing final arguments to the jury, and the comment complained of was made during the State's opening portion of the final argument. We view the language as an invitation to the defense lawyer to come up with a better explanation than was provided by the prosecutor, a situation similar to that found in Duncan v. Stynchcombe, 704 F.2d 1213 (11th Cir.1983), where the court said:

It appears more likely that the prosecutor was attempting to point out to the jury the lack of evidence concerning Duncan's whereabouts at the time of the robbery. A comment on the failure of the defense, as opposed to that of the defendant to counter or explain the testimony presented or evidence introduced is not an infringement of defendant's fifth amendment privilege.

Id. at 1215-1216. We discern no error in the denial of defendant's motion for mistrial.

Double Jeopardy

Snowden contends that the trial court erred in convicting and sentencing him for grand theft in addition to the conviction of third degree murder, defined by statute as a felony murder. ¹ His contention appears to be well taken.

With regard to the murder charge, the jury was instructed on the various degrees of homicide from first degree premeditated murder to third degree murder and manslaughter. Then, at the request of defense counsel and with the consent of the prosecutor, the court instructed the jury that grand theft was a crime which could be considered as an underlying felony of third degree murder and the jury, clearly finding the evidence insufficient to support a higher degree murder conviction, returned a verdict of guilty on third degree murder and grand theft. The question then is whether the defendant may legally be convicted of third degree (felony) murder and also be convicted of the underlying felony on which the murder conviction is based.

In State v. Pinder, 375 So.2d 836 (Fla.1979) the supreme court held that the State could prosecute a first degree murder charge on the theory of felony murder although premeditated murder was charged, but where the only evidence to sustain the murder conviction was furnished by proof that the killing occurred as the result of one of the felonies enumerated in Section 782.04(1), Florida Statutes, the defendant could not be convicted and punished for both the felony murder and the underlying felony. Id. at 839. In State v. Hegstrom, 401 So.2d 1343 (Fla.1981), the supreme court concluded that conviction on both the underlying felony and the felony murder on which it was based was constitutionally permissible, but that section 775.021(4), Florida Statutes proscribed punishment for the underlying felony offense, and to that extent receded from Pinder.

State v. Monroe, 406 So.2d 1115 (Fla.1981) followed Hegstrom and approved conviction of both robbery with a firearm and possession of a firearm while committing a felony (which the district court of appeal had held to be a lesser included offense) but vacated the sentence for the possession count. In Faison v. State, 426 So.2d 963 (Fla.1983) the court approved a conviction for both burglary with an assault and sexual battery (the underlying assault in...