Street v. State, 76928

• Citation: 636 So.2d 1297
• Decision Date: 31 March 1994
• Docket Number: No. 76928,76928
• Parties: 19 Fla. L. Weekly S159 Charles Harry STREET, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 1297

636 So.2d 1297

19 Fla. L. Weekly S159

Charles Harry STREET, Appellant, v. STATE of Florida, Appellee.

No. 76928.

Supreme Court of Florida.

March 31, 1994.

Rehearing Denied June 6, 1994.

Geoffrey C. Fleck of Friend, Fleck & Gettis, South Miami, and Lee Weissenborn, Miami, Sp. Asst. Public Defenders, for appellant.

Robert A. Butterworth, Atty. Gen. and Anita J. Gay, Asst. Atty. Gen., Miami, for appellee.

PER CURIAM.

Charles Harry Street appeals his conviction for first-degree murder and his sentence of death. We have jurisdiction under article V, section 3(b)(1) of the Florida Constitution.

Charles Street was released from the Glades Correctional Institution on November 18, 1988. Ten days later, on November 28 at around 2 a.m., Metro-Dade Police Officers Richard Boles and David Strzalkowski responded to a call of someone creating a disturbance near a trailer park. Upon arrival, the officers approached Street who had been the cause of the disturbance. A struggle ensued during which Street took Boles' gun and shot Strzalkowski three times, the final bullet striking him in the head and fatally wounding him. Street then shot Boles three times, ran out of ammunition, and went back to get Strzalkowski's gun. Street pursued Boles, already shot in the chest and face, around Boles' car and shot him one more time in the chest. ¹ Street then got into the police car, remarked "now I have got my lift," and proceeded north. ²

After eluding two pursuing officers, Street parked the police car and approached a man and woman talking. He pointed Boles' shotgun at them, ordered them to give him the car in which the woman was sitting, got in the car and continued to proceed north. Street was again followed by the police when an officer noticed the car traveling without its lights on. Street lost the officer but was eventually apprehended after he pulled off to the side of the road.

After a jury trial, Street was convicted of two counts of first-degree murder, three counts of armed robbery with a firearm, one count of robbery, two counts of armed burglary with a firearm, one count of attempted armed robbery with a firearm, and one count of possession of a firearm in the commission of a felony. The jury recommended death for both murders by a vote of twelve to zero, and the trial court followed this recommendation. The court found three aggravating factors to have been established for both murders, an additional two aggravating factors for the murder of Officer Boles, and some nonstatutory mitigating factors. ³ Street now appeals, claiming errors in both the guilt and sentencing phases of the trial.

Street raises numerous claims regarding the guilt phase of the trial. Street first argues that the court erred in permitting the State to introduce prior unrelated collateral evidence of the defendant's misconduct that had the effect of making the defendant's propensity for criminal conduct the predominant theme of the prosecution. Much of the evidence about which Street complains was clearly admissible and need not be discussed. However, there was one aspect of Street's argument that deserves consideration.

Street's defense in this case was that he was voluntarily intoxicated through the use of cocaine and that as a consequence he was unable to form the specific intent to commit first-degree murder. In rebuttal the State called Officer DeCarlo who testified that on a prior occasion he and another officer approached Street while he was standing on the sidewalk to arrest him for disorderly conduct. Street began to resist the officers and attempted to pull DeCarlo's gun out of his holster. DeCarlo was able to hold on to his pistol, and the officers were able to subdue Street. DeCarlo, who had extensive police training on the subject of cocaine addiction, expressed the opinion that Street was not under the influence of cocaine at that time.

In Rossi v. State, 416 So.2d 1166 (Fla. 4th DCA 1982), the State introduced evidence of a similar criminal act committed by the defendant ten years before in an effort to negate an insanity defense. In affirming the conviction, Judge Anstead wrote:

In essence appellant's defense in this case was that his actions against the victim resulted from an isolated and temporary mental breakdown. In considering the validity of such assertion we believe the jury was entitled to know that the appellant had engaged in virtually the identical conduct on a prior occasion. This evidence, of course, may give rise to differing inferences. One inference may be that the appellant's conduct, as opposed to being an isolated instance, was merely one episode in a series of wilful actions. Another inference may be that the alleged mental instability of the appellant is one of long standing and the occurrence of the prior episode simply adds credence to its existence. Regardless of these possibly conflicting inferences, however, we cannot accept the appellant's contention that the prior act was not relevant to a determination of his mental state at the time of the subsequent act.

Id. at 1168 (footnote omitted).

In the same vein, we believe that DeCarlo's testimony of an encounter similar to Street's involvement with the officers in the instant case was admissible in rebuttal of the contention that Street's actions were the result of the influence of cocaine.

Street further argues that even if the DeCarlo testimony was admissible, the trial judge erred in refusing to continue the trial so that he could present a witness who would testify that Street was not the aggressor in the DeCarlo encounter. DeCarlo testified on July 16, 1990. The State concluded its other rebuttal testimony at noon on July 19, 1990. At that time defense counsel stated that he had only recently located Terry Hickson who would be able to dispute DeCarlo's version of the struggle with Street. He requested a continuance until the following day in order that she could testify on surrebuttal. After the State pointed out that defense counsel had known what DeCarlo was going to say for at least two months, that it appeared that Hickson was Street's girlfriend, and that the State had not been furnished her name and address until that morning, the judge denied the motion for continuance. Under the circumstances, we cannot say that the judge abused his discretion in denying the motion for continuance. In any event, even if the court erred in refusing to allow Hickson to testify, the error was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Street also complains that the court unduly restricted the testimony of his addictionologist Dr. Trop. Based on a hypothetical question which included assumptions with respect to Street's behavior on the night of the killings, Dr. Trop was permitted to testify that Street was experiencing cocaine intoxication at that time. He expressed the opinion that the cocaine intoxication lessened Street's capacity to reason, to understand accurately the events going on around him, and to make rational choices. The court properly refused to permit him to testify that Street was suffering the mental infirmity of cocaine psychosis ⁴ because Street was not raising a defense of insanity. Chestnut v. State, 538 So.2d 820 (Fla.1989).

The court also refused to allow Dr. Trop to testify that because of his cocaine intoxication Street did not have the mental capacity to premeditate the homicides of Officers Boles and Strzalkowski. Ordinarily, an expert witness would be able to render such an opinion to support the defense of voluntary intoxication. However, in this case there was no evidence that Street had ingested cocaine on the night of the shootings. In fact, an analysis of Street's blood taken several hours after the shootings reflected the absence of cocaine in his bloodstream. The blood did contain evidence of a small amount of a cocaine metabolite known as benzoylecognine, but this only went to prove that Street had taken cocaine some time in the past. Therefore, the court did not err in limiting Dr. Trop's testimony. Holsworth v. State, 522 So.2d 348 (Fla.1988) (expert testimony as to effect of intoxicants on a defendant's mind is inadmissible absent some proof of ingestion other than defendant's hearsay statements to the expert).

Street's next contention is that the trial judge erred in its handling of juror misconduct and improper comments made by an outsider to the jury. Street complains that the trial court improperly denied defense counsel's request to make an inquiry of the jurors regarding their ability to continue listening to testimony after one juror was observed with his eyes closed during the direct examination of a State rebuttal witness. Instead of granting the request, the judge declared a recess before cross-examination began and after that the trial adjourned for the day. We find no abuse of discretion in the trial court's failure to question the jury about their stamina and ability to continue to listen to testimony. The trial court's exercise of discretion in this matter should not be disturbed absent a showing of bias or prejudice to the defendant, which appellant has not argued or proven. United States v. Hernandez, 921 F.2d 1569, 1578 (11th Cir.), cert. denied, 500 U.S. 958, 111 S.Ct. 2271, 114 L.Ed.2d 722 (1991); United States v. Holder, 652 F.2d 449, 451 (5th Cir.1981); Amazon v. State, 487 So.2d 8, 11 (Fla.), cert. denied, 479 U.S. 914, 107 S.Ct. 314, 93 L.Ed.2d 288 (1986); Ivey v. State, 132 Fla. 36, 45, 180 So. 368, 372 (1938). In any event, defense counsel did not request replacement of the juror with an alternate or make a motion for a mistrial.

Street also complains that a comment made by an outsider and heard by four of the jurors fundamentally corrupted the proceeding. When passing the jury in a hallway, someone uttered the word "guilty." Upon learning of the comment, the judge investigated the incident and individually questioned the jurors...