Thompson v. State

• Citation: 565 So.2d 1311
• Decision Date: 14 June 1990
• Docket Number: No. 73300,73300
• Parties: 15 Fla. L. Weekly S347 Joey Burton THOMPSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1311

565 So.2d 1311

15 Fla. L. Weekly S347

Joey Burton THOMPSON, Appellant, v. STATE of Florida, Appellee.

No. 73300.

Supreme Court of Florida.

June 14, 1990.

Rehearing Denied July 12, 1990.

Wm. J. Sheppard, Elizabeth L. White, Cyra C. O'Daniel and Matthew P. Farmer of Sheppard and White, P.A., Jacksonville, for appellant.

Robert A. Butterworth, Atty. Gen., and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.

BARKETT, Justice.

Joey Burton Thompson ("Thompson") appeals his conviction of first-degree murder and sentence of death. We affirm the conviction but vacate the sentence of death and remand for imposition of a sentence of life imprisonment. ¹

Evidence presented at trial showed that Thompson and his wife, Janice, were living together in Jacksonville, Florida, in early 1988 when Thompson began having an affair with the victim, Annette Louise Place. Janice learned of the affair and moved out with the couple's two children. On the morning of February 11, Janice asked the police to accompany her to the Thompson home so that she could retrieve clothing that she had left there. She and two officers went to the home and knocked on the door. After about five minutes, Thompson came to the door and appeared to be dazed. Janice pushed Thompson aside and entered. Thompson told the officers that his girlfriend was in the bedroom, dead. The officers found Place's body in the bed, covered by a comforter. She had been shot once in the back of the head and stabbed once in the back. Either wound was fatal.

Oral and written statements, which Thompson had made to police both at the scene and later in jail, were introduced into evidence. Thompson told police that he and Place had an argument on the night of February 9 because Thompson decided to go back to his wife. Place objected and threatened to blow up the house. When Thompson awoke on the morning of February 10, he decided to kill Place and commit suicide. He said he shot Place as she lay sleeping, then he stabbed her because she was still moving and he wanted her to feel no pain. Thompson wrote a suicide note to his wife, which police found at the scene. He told police that he tried to shoot himself, but when he could not, he slashed at his wrists with a razor blade. However, he could not go through with it. He later indicated to police that he wanted to die, and he asked one officer to shoot him to death.

Thompson testified at trial and contradicted his prior account of the murder, saying that his wife Janice killed Place in a fit of jealous rage. He said he wanted to kill himself to protect his wife and children, and because it would be "better all the way around, it would be easier for me to deal with it." He said he attempted suicide with the gun, by taking an overdose of pills, and finally with a razor blade, each time to no avail. Because he could not kill himself, he said, he confessed in the belief that the state's death penalty would do the job for him.

The jury voted to convict Thompson of first-degree murder, and the trial court followed the jury's recommendation to sentence Thompson to death.

I. GUILT PHASE

Thompson made three claims regarding the grand jury proceedings, two of which merit brief discussion. ² First, he contends that the trial court erred by denying his pretrial request to record the grand jury proceedings. Sections 905.17 and 905.27 of the Florida Statutes (1987), do not establish a duty to record grand jury proceedings, nor do we find any constitutional basis to impose such a duty in all cases. In re Report of the Grand Jury, 533 So.2d 873, 875 (Fla. 1st DCA 1988); accord United States v. Head, 586 F.2d 508 (5th Cir.1978). Although recordation may be the best and most desirable practice, e.g., State v. McArthur, 296 So.2d 97, 100 (Fla. 4th DCA), cert. denied, 306 So.2d 123 (Fla.1974); United States v. Head, 586 F.2d at 511, that choice generally is one for the legislature. We agree with McArthur that the interests of justice may require trial courts to order recordation in some instances. McArthur, 296 So.2d at 100. However, no showing was made to establish that Thompson had a particular need to preserve grand jury testimony through recording. Under these circumstances, the trial court did not abuse its discretion by denying the motion.

We also know of no statutory or constitutional authority to support Thompson's second contention, that the state should be precluded from conducting voir dire of prospective grand jurors. Implicit in the statutory right to challenge individual prospective grand jurors, section 905.04, Florida Statutes (1987), is the opportunity to obtain information from them about their qualifications. We have been presented with no argument to show why that should not be done through voir dire. Certainly, Thompson has a right to fair treatment by a lawfully composed grand jury. However, he did not present us with the record of the voir dire, nor did he present any evidence to show that his rights were jeopardized by the voir dire. This claim has no merit.

Thompson also raises two issues regarding petit jury selection, one of which merits discussion here. ³ He claims that he was denied fair treatment when the state was allowed to use background information on the criminal arrest records of prospective jurors, while denying Thompson the same information or the funds to acquire that information. He argues that it gave the state an unfair advantage and enhanced the danger of jury bias in the state's favor.

Thompson alleges that the state gets such information as a routine matter, and that it routinely denies defense attorneys access to that information. But the record does not make clear whether the state did in fact possess any information about the prospective jurors. The record also fails to establish whether Thompson could have obtained access to that information through his own resources, or whether it was information to which only the state reasonably or lawfully had access. We empathize with Thompson's concerns for fairness, but the record here is insufficiently developed for us to determine that he was denied fair treatment.

We agree with Thompson's next claim, that the trial court erred when it allowed Place's father to identify his deceased daughter from a photograph. However, we find the error harmless beyond a reasonable doubt in this case. Courts of this state have followed a long-standing rule that relatives may not be called solely to identify their deceased victims when unrelated, credible witnesses are available to make an identification. The rule is based on the theory that the testimony of relatives is likely to be inflammatory and may arouse unwarranted jury sympathy for the victim, interjecting matters not germane to the issue of guilt or punishment. See, e.g., Dougan v. State, 470 So.2d 697 (Fla.1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1499, 89 L.Ed.2d 900 (1986); Welty v. State, 402 So.2d 1159 (Fla.1981); Lewis v. State, 377 So.2d 640 (Fla.1979); Rowe v. State, 120 Fla. 649, 163 So. 22 (1935). When the state intends to offer such evidence, it must show that it made an effort to find witnesses other than relatives to identify the victim. The family member should be a witness of last resort.

The state argues that it knew of only one witness--the father--who could identify the body from the photograph. The state says it had a nonrelative witness available who had known Place, but that the witness was unable to identify Place from the postmortem photograph. Thompson's argument, that the state could have sought other witnesses, is well taken. There is no evidence in the record that the state made a concerted effort to find other competent witnesses to identify Place.

The record shows that the trial judge was concerned enough to have the state assure that it would not ask the witness to disclose his relationship to the victim. However, the court's precautions proved to be insufficient, as the following colloquy discloses:

Q [by the state] Sir, I now show you State's Exhibit A and I ask you to look at the photograph that's been marked for identification and ask you if you recognize that photograph?

A Yes, I do.

Q And what is that a photograph of; is that Annette Louise Place?

A That's my daughter, Annette Louise Place.

The trial judge immediately recognized the error and considered ordering a mistrial. However, after reviewing the law, the judge ruled that the error was harmless because the witness displayed no emotional outburst or other unduly prejudicial behavior to improperly influence the jury. Upon this record, we concur with the trial judge and find the error harmless beyond a reasonable doubt. Dougan, 470 So.2d at 699; Welty, 402 So.2d at 1162.

Thompson next claims that the trial court should not have permitted the jury to see highly prejudicial photographs of the victim. The law is clear that the trial court has discretion, absent abuse, to admit photographic evidence so long as the evidence is relevant. E.g., Patterson v State, 513 So.2d 1257, 1260 (Fla.1987); Wilson v. State, 436 So.2d 908, 910 (Fla.1983); Welty, 402 So.2d at 1163; see §§ 90.401-.403, Fla.Stat. (1987). The photographs here were relevant to establish the victim's identity and to show that Thompson's out-of-court confessions were consistent with the physical evidence found at the scene. The gruesome nature of the homicide photographs here does not render the decision to admit them into evidence an abuse of discretion.

Finally, Thompson claims that the trial court erroneously allowed Janice Thompson to testify as a rebuttal witness for the state after she deliberately hid from the defense prior to trial, allegedly with the state's acquiescence.

The record discloses the following facts. Thompson tried to depose Janice in September 1988, weeks before the trial. The state disclosed to Thompson all of Janice's addresses that it had, and the defense attempted to serve Janice with...