Stewart v. State, No. 70015

• Court: United States State Supreme Court of Florida
• Writing for the Court: SHAW; EHRLICH; BARKETT, J., concurs in part and dissents in part with an opinion, in which KOGAN; BARKETT; KOGAN
• Citation: 14 Fla. L. Weekly 430,549 So.2d 171
• Docket Number: No. 70015
• Decision Date: 31 August 1989
• Parties: 14 Fla. L. Weekly 430 Kenneth Allen STEWART, Appellant, v. STATE of Florida, Appellant.

Page 171

549 So.2d 171 14 Fla. L. Weekly 430 Kenneth Allen STEWART, Appellant,
v.
STATE of Florida, Appellant. No. 70015. Supreme Court of Florida. Aug. 31, 1989.
Rehearing Denied Oct. 17, 1989.

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James Marion Moorman, Public Defender, and Douglas S. Connor, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., and Joseph R. Bryant, Asst. Atty. Gen., Tampa, for appellee.

SHAW, Justice.

This cause is before us on appeal from convictions and sentences of first-degree murder, attempted second-degree murder with a firearm, robbery with a firearm, and arson. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

In April 1985, Michele Acosta and Mark Harris picked up appellant, Kenneth Stewart, while he was hitchhiking. When Acosta stopped to drop Stewart off, he struck her on the head with the butt of a gun and fired three shots, hitting Acosta in the shoulder and Harris in the spine. Stewart then forced Acosta and Harris from the car before driving off and picking up a friend, Terry Smith. The two removed items from the car's trunk and Stewart burned the car after telling Smith that the car belonged to a woman and man whom he had shot. Acosta recovered from her injuries; Harris later died.

Stewart was arrested and ultimately charged with first-degree murder, attempted first-degree murder, armed robbery, and arson. He consented to a search of his apartment, which yielded the items he and Smith had taken from Acosta's car. When shown a photopack display of suspects, Harris, who had not yet expired, and Acosta identified Stewart as the assailant. Acosta also identified Stewart in person at a preliminary hearing. While in jail, Stewart telephoned his grandparents. Detective Lease, who was visiting the grandparents, obtained their permission to secretly listen in on an extension. Via pretrial motions, Stewart sought to suppress the identifications made by Acosta and Harris, and the telephone conversation overheard by Lease. The court excluded the identification made by Harris, but ruled admissible both of Acosta's identifications and the telephone conversation.

During the culpability phase of the trial, the defense presented no evidence or testimony, conceding that Stewart had done the shooting but arguing that he was guilty of only second-degree murder or manslaughter. The jury found Stewart guilty of first-degree murder, attempted second-degree murder with a firearm, robbery with a firearm, and arson. The trial judge, following the jury's recommendation, sentenced Stewart to death on the murder charge, imposed two consecutive fifteen-year sentences for the attempted second-degree murder and arson convictions, and, departing from the sentencing guidelines, imposed a life sentence for the armed robbery.

TRIAL PHASE

The first point on appeal is that the telephone conversation between Stewart

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and his grandmother should have been suppressed. Lease testified that during the conversation Stewart admitted shooting "that guy and the girl" and that his reason was "I guess to rob them." According to Stewart, the incriminating part of Lease's testimony was his admission that robbery had been his motive. He claims that had this statement been suppressed, the jury might have found him guilty only of second-degree murder. He asserts that admission of this testimony violated article I, section 12 of the Florida Constitution, which provides that persons have a right to be secure "against the unreasonable interception of private communications by any means." Unfortunately for Stewart, the same provision states that this right "shall be construed in conformity with the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court." In United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), the Court ruled that no fourth amendment violation occurred where government agents testified at trial concerning a conversation they had monitored between the defendant and an informant wearing a warrantless bug. The passive role played by Detective Lease in the instant case with the consent of the grandparents is far less intrusive than that played by the government officers in White. We detect no article I, section 12 violation.

Stewart further claims that evidence of the conversation was obtained in violation of his sixth amendment right to counsel. He asserts that this right to counsel had attached at his first appearance hearing, which had been held two days earlier, and that Lease's actions violated United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). In Henry, the Court ruled that the right to counsel was violated where a cellmate was told not to question or initiate any conversation with Henry, who was represented by counsel, but merely to listen. The cellmate later testified in court as to what Henry said concerning details of the crime. Stewart's reliance on Henry is misplaced; there is a significant distinction. Henry's cellmate was acting as a government agent; he was a paid informant expressly commissioned to obtain incriminating evidence and to deceive Henry as to that purpose. No such encounter took place here. Stewart conversed only with his grandmother, not with a state agent. There was no point at which prosecution and accused interacted. The right enunciated in Henry applies only during significant encounters between prosecution and accused. See United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Stewart's argument that his fifth amendment rights were violated under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is equally unpersuasive. Suffice it to say that Miranda warnings are required to combat the "inherently compelling pressures" of "in-custody interrogation." Id. at 467, 86 S.Ct. at 1624, 16 L.Ed.2d at 719. No such interrogation occurred here.

Stewart next argues that his legs should not have been shackled during the guilt and sentencing phases of the trial. The initial in-court exchange concerning shackles took place prior to jury selection:

THE COURT: It has been requested by defense counsel that his client's leg shackles be removed. I have, apparently, the defendant has complained that they are too tight. I have had Mr. Morone check those.

Mr. Morone, how tight are those ankle shackles?

THE BAILIFF: I can pass my fingers down between his shackles and legs. I have very large fingers.

....

MR. BARBAS: It gives a false impression to the jury that, in fact, he is already under some type sentence, is another reason.

THE COURT: I disagree that it gives a false impression he is under sentence. I think the fewer comments made is the better procedure here. The Court has had problems with this particular defendant in the past, where there has been

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allegations he may attempt to run. I am having him shackled in the courtroom.

MR. SKYE: Maybe it would not bring more attention if you didn't ask him to stand, like you normally do.

THE COURT: I would prefer to have him standing. His feet are wide enough apart. If they are going to see them, they are going to see them.

MR. BARBAS: Yes sir.

Later, on Stewart's motion for a new trial, the court, after hearing argument from both sides, ruled that the shackles were both unobtrusive and necessary. The judge pointed out that Stewart had remained stationary during the trial, thus giving the jury no opportunity to see him walk in shackles, and that the shackles were barely visible under the table. The judge was also aware that Stewart had on a previous occasion slipped off his manacles, and was facing charges of escape and attempted escape. The judge therefore had reason to believe that Stewart was a high risk prisoner who had previously tried to escape and thus presented a security risk. Though we recognize that shackling is an "inherently prejudicial practice," Holbrook v. Flynn, 475 U.S. 560, 568, 106 S.Ct. 1340, 1345, 89 L.Ed.2d 525, 534 (1986), the trial court, in this instance, properly exercised its discretion to ensure the security and safety of the proceeding.

SENTENCING PHASE

During the penalty phase, judgments that had been rendered against Stewart in the trial phase were entered into evidence by the state. The bailiff testified for the state, stating that he had placed Stewart's fingerprints on the documents and that Stewart was the same person who had been adjudged guilty of the offenses. Stewart contends that this link between prosecution and bailiff prejudiced the jury. We disagree. No prejudice results when a court officer serves as a witness for the state in a nonmaterial matter. See Rhone v. State, 93 So.2d 80 (Fla.1957).

The trial court refused to give one of Stewart's requested special jury instructions which stated that

no defendant can be sentenced to death...