Stewart v. State, 70245

• Citation: 558 So.2d 416
• Decision Date: 15 March 1990
• Docket Number: No. 70245,70245
• Parties: 15 Fla. L. Weekly S138 Kenneth Allen STEWART, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 416

558 So.2d 416

15 Fla. L. Weekly S138

Kenneth Allen STEWART, Appellant, v. STATE of Florida, Appellee.

No. 70245.

Supreme Court of Florida.

March 15, 1990.

James Marion Moorman, Public Defender, and A. Anne Owens, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., and Erica M. Raffel and Joseph R. Bryant, Asst. Attys. Gen., Tampa, for appellee.

PER CURIAM.

Stewart appeals his convictions of first-degree murder and second-degree arson and his sentences of death and fifteen years' imprisonment. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the convictions and sentences, with the exception of the death penalty.

Daniel Clark heard two gunshots on December 6, 1984, at about 12:15 a.m., "just a split second or two" apart. He got out of bed, walked outside, looked down the road in both directions, but saw nothing. At approximately 1:00 that same morning, Linda Drayne spotted a body lying alongside the road and reported it to the police. Investigation revealed that the body was that of Ruben Diaz, who had been shot twice from a distance of a foot or less, once in the front of the head, and once behind the right ear. Sometime after midnight, police also discovered Diaz's car, which had been set on fire in a mall parking lot. Several months later, Stewart was arrested in connection with another crime and while in custody was charged with first-degree murder and second-degree arson for the instant offenses. During the guilt phase of the trial, Randall Bilbrey, who shared a trailer with Stewart from December 9 to December 19, 1984, testified that Stewart told him that he and another man were looking for someone to rob when they spotted a big, expensive-looking car outside a bar. They went in and engaged the car's owner, Diaz, in conversation, convincing him to give them a ride. Once in the car, Stewart, who sat in the back seat, pulled a gun and ordered Diaz to drive to a wooded area where he ordered Diaz to get out of the car, lie on the ground, and place his hands on his head. He took Diaz's wallet, which contained fifty dollars, and a small vial of cocaine, and then, at the urging of the second man, shot Diaz twice in the head. Stewart and the second man later burned the car to destroy fingerprints.

The state's second key witness was Terry Smith, a friend with whom Stewart shared an apartment. Smith testified that Stewart told him that a man picked him up hitchhiking and that he pulled a gun, ordered the man to drive to a certain location where Stewart ordered the man out of the car, made him lie on the ground, robbed him, and shot him twice. Stewart was convicted of both crimes. He was sentenced to fifteen years in prison for arson, and, consistent with the jury recommendation, death for first-degree murder.

Stewart first claims that the trial court deprived him of an effective defense. During cross-examination, Stewart's lawyer asked Smith whether Stewart had told him that it was Bilbrey who really committed the murder. The prosecutor objected, saying it was unethical for the lawyer to be making such statements in the form of questions unless a later witness was going to substantiate the content of the questions. The objection was sustained. Later, during closing argument, defense counsel twice tried to argue that Stewart had merely related to Smith what Bilbrey had told Stewart about the murder. The state's objections again were sustained. Stewart argues that the trial court thus deprived him of a viable defense and that this constitutes a violation of his fundamental right to present a defense and his sixth amendment right to cross-examine witnesses. We do not find reversible error for the following reasons: When the court sustained the prosecutor's objection on cross-examination, the witness had already twice denied that Stewart told him Bilbrey had committed the murder, thus effectively closing off this approach with this particular witness. There were no further questions that could have been asked on this point without being repetitive or abusive. As to closing argument, the court erred when it precluded defense counsel from arguing that Stewart told Smith what Bilbrey told him. The lawyer was hypothesizing from evidence that had been presented during the trial and should have been allowed to continue. However, this error was harmless; counsel presented on several occasions and the jury rejected his theory that Bilbrey was the real killer who related the murder to Stewart.

Stewart claims that the trial court wrongly allowed Detective Marsicano to testify as to what Stewart told Smith about the crimes. After he was arrested in connection with other offenses, Smith told Marsicano that Stewart had related to him details of the instant crimes. After Smith testified, the state called Marsicano. Defense counsel objected to the anticipated testimony as hearsay. The prosecutor countered that the prior consistent statement was nonhearsay since it was being offered to combat Stewart's claim that Smith had recently fabricated his testimony in return for favorable treatment by the state. The objection was overruled and Marsicano testified as to what Smith had told him. Stewart alleges that this testimony should not have been allowed under the recent fabrication provision because the same reason that was given for discounting Smith's in-court testimony existed at the time Smith spoke to Marsicano, and thus the prior consistent statement was not made before the reason to falsify came into existence. We disagree. During cross-examination of Smith, defense counsel indicated that Smith was not to be believed because he was attempting to obtain favored treatment at sentencing on convictions that had been obtained on other charges. This was a recent situation; when Smith spoke to Marsicano, no convictions had been obtained and no sentences were pending. Marsicano's testimony was properly offered to combat Stewart's charge of recent fabrication. See DuFour v. State, 495 So.2d 154 (Fla.1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1332, 94 L.Ed.2d 183 (1987); § 90.801(2)(b), Fla.Stat. (1983).

Before the penalty phase began, defense counsel moved to withdraw on the grounds that because he had previously represented to the jury that Stewart did not commit the crime, he had now lost all credibility before the jury since they had found his client guilty. The motion was denied. Stewart now claims that the denial was error that prevented him from receiving effective assistance of counsel during the penalty phase. We find no merit in this claim. Under Stewart's argument, new counsel would have to be appointed prior to conducting the penalty phase in every capital case in which there is a conviction after a not guilty plea, a clearly impractical and unnecessary practice.

During the penalty phase, the court allowed into evidence testimony by victims of crimes for which Stewart earlier had been convicted. Stewart claims that entry of the judgment of conviction alone should have been permitted; he asserts that testimony concerning the facts of the prior crimes was prejudicial since the victims were persons Stewart had shot. We have previously addressed this matter in Elledge v. State, 346 So.2d 998, 1001 (Fla.1977):

The question then arises whether it was proper to permit Mrs. Nelson to testify concerning the events which resulted in the conviction as opposed to restricting the evidence to the bare admission of the conviction. We conclude it was appropriate to admit Mrs. Nelson's testimony. This is so because we believe the purpose for considering aggravating and mitigating circumstances is to engage in a character analysis of the defendant to ascertain whether the ultimate penalty is called for in his or her particular case. Propensity to commit violent crimes surely must be a valid consideration for the jury and the judge.

We find no error here.

Stewart points out that this Court has held that a defendant cannot be precluded from offering as a mitigating factor any aspect of his character and record that could justify reduction of a death sentence. Perry v. State, 395 So.2d 170, 174 (Fla.1980). Yet, according to Stewart, the trial court wrongly excluded: 1) testimony of Stewart's uncle relating to how Stewart's father was killed in a barroom fight, 2) testimony of Stewart's grandmother concerning cigarette burns on Stewart when he was an infant, and 3) a letter of remorse from Stewart to the family of one of his victims. We find no error. The details of the barroom fight were simply irrelevant. The witness began to relate obscure details: the name of the tavern, the people who were playing pool, who was with whom, the issue over who was losing. The court determined that this was pointless and confusing. As to the alleged cigarette burns, this proffered testimony was speculative in the extreme: The grandmother testified that three days before trial a relative told her that a second relative had told the first that twenty-one years ago the second relative had seen marks on infant Stewart that could have been burns. The court properly ruled that the probative value of this testimony was negated by its highly speculative nature. The letter of remorse concerned an unrelated crime. Stewart's remorse as to the present crime was attested to by his girlfriend.

Stewart claims that the jury should not have been instructed that it could consider "cold, calculated, and premeditated" as a factor, since the judge made no mention of this factor when he sentenced Stewart. Evidence on the cold, calculated, and premeditated nature of the crime was presented at trial, and the trial court is required to instruct on all aggravating and mitigating circumstances "for which evidence has been presented." Fla.Std.Jury Instr. (Crim.) at 78, 80....