Terry v. State
| Decision Date | 04 January 1996 |
| Docket Number | No. 83002,83002 |
| Citation | 668 So.2d 954 |
| Parties | 21 Fla. L. Weekly S9 Kenneth Maurice TERRY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Barbara C. Davis of Whited & Davis, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General and Barbara J. Yates, Assistant Attorney General, Tallahassee, for Appellee.
We have on appeal the convictions and judgment of the trial court imposing a sentence of death upon Appellant Kenneth Maurice Terry. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm appellant's convictions but vacate the sentence of death and reduce appellant's sentence to life imprisonment without eligibility of parole for twenty-five years.
On July 14, 1992, shortly before 2 a.m., the Daytona Beach Police Department responded to a murder/robbery complaint at a Mobil Station in Daytona Beach. At the scene, the police found Joelle Franco dead in the store area of the station. On the floor of the store, the police found a white knit cap with "Down with O.P.P." printed on it along with a green and plastic bag with the words "Foot Action" printed on it. A red ski mask was found two blocks from the scene.
At trial, Mr. Franco testified that on the night of the murder he was in the station's garage and his wife was in the station's convenience store. Mr. Franco looked up when he heard a voice say, "Don't move or I shoot." A man in a red mask was pointing a small silver gun at him. Mr. Franco heard a scream and thirty seconds later a shot. A second man, who was not wearing a mask, emerged from the office.
Subsequently, Audrin Butler, the brother-in-law of codefendant Demon Floyd and appellant's girlfriend, informed the police about appellant and Floyd's involvement in a series of unconnected armed robberies. On the basis of this information, the police arrested appellant and Floyd and obtained a warrant to search the appellant's apartment. During the search, the police seized a mask similar to the ones found at or near the murder scene, an inoperable .25 caliber handgun, and an operable .38 caliber handgun. Ballistic testing proved that the fatal shot came from the .38 caliber handgun. After appellant was arrested his shoes were seized. DNA testing matched blood stains on appellant's shoes with the victim's blood.
After being arrested, Floyd confessed to his involvement in the murder. He told the police that he and appellant were riding around looking for places to rob and that appellant had the guns and masks in the green and white "Foot Action" bag. Floyd wore the red mask and had the inoperable .25 caliber gun, and Terry wore the white "O.P.P." mask and used the .38 caliber gun. Floyd held Mr. Franco in the garage while Terry went to rob Mrs. Franco.
Appellant argues that the trial court erred in refusing to suppress certain physical evidence 3 because the affidavit upon which the search warrant was based contained misleading information, which when excised did not leave an affidavit that supplied probable cause to search. We disagree.
A trial court's ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court's ruling. McNamara v. State, 357 So.2d 410, 412 (Fla.1978). If the affidavit causing a warrant to issue contains intentionally and knowingly or recklessly false statements, the court must excise the falsity from the affidavit and review the remainder of the affidavit to determine whether there remained sufficient grounds to establish probable cause. Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667, 672 (1978). If the remaining statements in the affidavit are sufficient to establish probable cause, the erroneous statement does not invalidate the search warrant. Blair v. State, 406 So.2d 1103, 1106 (Fla.1981). If the false statement is necessary for probable cause, the search warrant must be voided and the fruits of the search excluded. Franks, 438 U.S. at 156, 98 S.Ct. at 2676.
In this case, appellant's motion to suppress alleged that the affidavit was deficient in at least five respects. After considering all of the testimony presented at the suppression hearing, the trial judge found one "at least recklessly false" statement in the affidavit. The judge stated:
Detective Ladwig in the first paragraph on page 2 of the affidavit for search warrant states, "This citizen has provided crucial information about crimes in the past which has been useful in the solving of crimes and has provided truthful statements in open court concerning past information provided". The affidavit clearly implies that affiant Ladwig had personal knowledge that Butler had provided crucial information and testified in court about other crimes. Such is not the case. Testimony revealed that information was provided in only one case and that there was no in court testimony. Affiant Ladwig obtained his knowledge of Butler from Butler himself, an assistant state attorney, and another detective. The affiant's statement is at least recklessly false. The false information must be excised from the affidavit in considering whether probable cause existed to issue the warrant.
(Record references omitted.) After setting aside the erroneous statement, the trial court found sufficient facts in the affidavit to demonstrate probable cause. Given the facts remaining in the affidavit after the excision, the fact that the informant personally appeared and was sworn before the warrant-issuing judge, and the great deference we accord the trial court's probable cause determination, we agree with the trial judge's ruling that the affidavit still contained sufficient information to constitute probable cause. Thus, we find no error in the trial court's denial of appellant's motion to suppress.
Appellant claims that the state did not have probable cause to take a blood sample from him. However, this claim has not been preserved for appeal. To preserve an issue about evidence for appellate review, an appropriate objection must be made at trial when the evidence is offered. Robertson v. State, 94 Fla. 770, 775, 114 So. 534, 536 (1927). "The preliminary interposition of [a motion to suppress] prior to the trial, and an exception to an adverse ruling thereon, is not tantamount to a proper and seasonable objection to the questioned evidence at the trial upon the issue." Id.
In this case, appellant's blood sample, which was located in a vial, was admitted into evidence without objection by the defense. Therefore, this issue has not been preserved for review. 4
Appellant claims that the trial court improperly denied him access to the law enforcement analysts' notes. As a preliminary matter, we find, contrary to the state's argument, this issue to be preserved for review.
Appellant contends that Dr. Terrence Steiner's testimony regarding Mrs. Franco's position before death should have been disallowed because he was not qualified to give an opinion on this issue. 6 We disagree.
The determination of a witness's qualifications to express an expert opinion is peculiarly within the discretion of the trial judge whose decision will not be reversed absent a clear showing of error. Ramirez v. State, 542 So.2d 352, 355 (Fla.1989). An expert is permitted to express an opinion on matters in which the witness has expertise when the opinion is in response to facts disclosed to the expert at or before the trial. § 90.704, Fla.Stat. (1993). Section 90.702 requires that before an expert may testify in the form of an opinion, two preliminary factual determinations must be made by the court under section 90.105. First, the court must determine whether the subject matter is proper for expert testimony, i.e., that it will assist the trier of fact in understanding the evidence or in determining a fact in issue. Secon...
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