Stano v. State

• Decision Date: 11 July 1985
• Docket Number: No. 64687,64687
• Parties: 10 Fla. L. Weekly 385 Gerald Eugene STANO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1282

473 So.2d 1282

10 Fla. L. Weekly 385

Gerald Eugene STANO, Appellant, v. STATE of Florida, Appellee.

No. 64687.

Supreme Court of Florida.

July 11, 1985.

Rehearing Denied Sept. 4, 1985.

James B. Gibson, Public Defender and Christopher S. Quarles, Chief, Capital Appeals, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen. and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Gerald Stano appeals his conviction of first-degree murder and sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution, and affirm both the conviction and sentence.

In 1981 Stano confessed to having killed a young woman in 1974, and a grand jury indicted him for first-degree murder. When the jury could not reach a unanimous verdict, the court declared a mistrial. On retrial the jury convicted Stano as charged and recommended the death penalty, which the trial court imposed.

Numerous members of the venire for the second trial had been exposed to publicity regarding Stano, the instant crime, and the first trial. At voir dire defense counsel asked one prospective juror how the pretrial publicity would affect her deliberations if she were selected to serve, and she responded that she would "block it out." When defense counsel asked how she would do that, the court sustained the state's objection to that question. Stano now claims that the court improperly limited the scope of his voir dire. We disagree.

While "counsel must have an opportunity to ascertain latent or concealed prejudgments by prospective jurors," it is the trial court's responsibility to control unreasonably repetitious and argumentative voir dire. Jones v. State, 378 So.2d 797, 797-98 (Fla. 1st DCA 1979), cert. denied, 388 So.2d 1114 (Fla.1980). The test for determining a juror's competency is whether that juror can lay aside any prejudice or bias and decide the case solely on the evidence presented and the instructions given. Davis v. State, 461 So.2d 67 (Fla.1984); Lusk v. State, 446 So.2d 1038 (Fla.), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). The prospective juror that Stano now complains about met that test, as did all those persons who eventually served on the jury. Stano has shown no abuse of discretion in the trial court's restriction of defense counsel's voir dire.

As his second point on appeal, Stano complains that the trial court improperly restricted his presentation of evidence at both the guilt and penalty phases of his trial. Stano's attorney proffered the testimony of a psychiatrist that certain people confess to crimes they did not commit and of a police officer to whom Stano had confessed a murder which he, Stano, did not commit. After hearing both sides' arguments, the trial court refused to allow the jury to hear this testimony.

In arguing to the court the state relied on three cases: Grove v. State, 211 Tenn. 448, 365 S.W.2d 871 (1963); Grove v. State, 185 Md. 476, 45 A.2d 348 (1946); and State v. Humphrey, 63 Or. 540, 128 P. 824 (1912). In Humphrey the Oregon Supreme Court held that a trial court properly refused to admit testimony regarding a defendant's false confession to several murders because that testimony would have confused the issue being tried and would have been unprofitable and irrelevant. In the Maryland Grove case the appellate court found that testimony about false confessions to other crimes would be irrelevant. The Tennessee Supreme Court reached the same conclusion in its Grove opinion.

To be relevant, and, therefore, admissible, evidence must prove or tend to prove a fact in issue. Coler v. State, 418 So.2d 238 (Fla.1982), cert. denied, 459 U.S. 1127, 103 S.Ct. 763, 74 L.Ed.2d 978 (1983). Moreover, the person seeking admission of testimony must demonstrate its relevance. Hitchcock v. State, 413 So.2d 741 (Fla.) cert. denied, 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982). None of the defendants in Humphrey and the Grove cases could prove the relevance of the proffered testimony. Stano's proffer suffers from the same defect, i.e., a lack of demonstrated relevance. The fact that some people confess to crimes they did not commit is not evidence that Stano's confession in this case was infirm or tainted. There was no proffer of an opinion to such a contention, even though Stano's theory of defense was that he killed someone other than the alleged victim in this case.

Turning to the sentencing portion, a defendant should be allowed to introduce in mitigation any aspect of his character or record or any evidence regarding the circumstances of the offense that might justify less than a sentence of death. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); Perry v. State, 395 So.2d 170 (Fla.1980). In other words, any relevant evidence as to a defendant's character or the circumstances of the crime is admissible at sentencing. Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982). Conversely, irrelevant evidence is inadmissible.

The testimony Stano sought to present at sentencing was irrelevant. The psychiatrist, who had not examined Stano, would have testified that some people confess to crimes they do not commit. The detective would have testified that Stano made a false confession to him. We fail to see (a) the relevancy of testimony not about Stano himself and (b) the relevancy and efficacy of telling the jury that Stano was a liar as well as a convicted murderer. A trial court's discretion extends to determining what is relevant evidence at sentencing, and a trial court's finding will not be disturbed unless an abuse of discretion is shown. Christopher v. State, 407 So.2d 198 (Fla.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1761, 72 L.Ed.2d 169 (1982). Stano has demonstrated no abuse of discretion on this point.

The victim's parents testified at the first trial. Prior to the second trial, however, they stated that, because they were so upset, they would not testify again. The state filed a motion to compel their testimony, but the parents stated that they would not testify regardless of fines or imprisonment. The state then filed a motion of unavailability, and the parents reiterated that they would not testify and that sanctions would not induce them to testify. On the day trial was to begin, the state renewed its motion of unavailability. The parents, who were in the courtroom, again refused to testify. After holding a hearing on the matter, the trial court declared them unavailable and allowed the state to read the transcripts of their testimony at the first trial into evidence. Stano now claims that the court erred in declaring these people unavailable and in allowing their former testimony into evidence.

Subsection 90.804(1)(b), Florida Statutes (1983), provides that a witness is unavailable if he "[p]ersists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so." At the hearing immediately prior to trial the parents adamantly refused to testify and persisted in that refusal even when told by the court that their continued refusal could subject them to fines or imprisonment. The requirements of subsection 90.804(1)(b) have been met here. We see no purpose that would have been served in this instance in, as Stano argues, calling these people at trial to have them reiterate their refusal to testify or in actually fining or imprisoning them. The state made an adequate showing of unavailability, and we find no abuse of discretion in the trial court's rulings. See Outlaw v. State, 269 So.2d 403 (Fla. 4th DCA 1972), cert. denied, 273 So.2d 80 (Fla.1973).

To set the scene for reading into the record the prior testimony of the victim's parents, a deputy court clerk testified that they had testified at the first trial and authenticated the exhibits that had been introduced through their testimony. The court reporter then read the parents' former testimony into the record. The court overruled the defense's objections to this procedure.

Stano now claims that allowing the deputy clerk to testify violated the rule of witness sequestration and also resulted in a loss of the trial court's appearance of impartiality. Excluding persons from the rule of sequestration is within a trial court's discretion, West v. State, 149 Fla. 436, 6 So.2d 7 (1942), and Stano has demonstrated no abuse of discretion or any prejudice here. Moreover, it appears that the deputy clerk's testimony performed a purely administrative function. As such, it did not impinge upon the trial court's appearance of impropriety. We therefore find no merit to this point.

When found, the victim's body was in an advanced state of decomposition. At trial her former dentist identified the victim's skull through her dental records. He had not, however, seen her for a number of years, and, in fact, the last dental charts he had made of his former patient showed twelve baby teeth. On the other hand, the five amalgam restorations (fillings) present in the victim's first four permanent molars exactly matched the dental charts and the material the dentist used for restorations at that time. The dentist testified that, based on his dental expertise, the victim was his former patient.

The court overruled the defense's objection to the dentist's identification of the victim. Stano now argues that the dentist testified to an ultimate fact beyond his expertise and qualifications and that his testimony denied him a fair trial. We disagree.

An expert's opinion must be based on facts in evidence or within his knowledge. Cirack v. State, 201 So.2d 706 (Fla.1967). The dentist's testimony meets this standard, and he identified the victim to a reasonable medical certainty. See Stone v. State, 378 So.2d 765 (Fla.1979), cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980). A trial court has wide discretion concerning...