Thornton v. State

• Decision Date: 01 August 2007
• Docket Number: No. 3D05-1892.,3D05-1892.
• Parties: Henry G. THORNTON, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

963 So.2d 804

Henry G. THORNTON, Appellant, v. The STATE of Florida, Appellee.

No. 3D05-1892.

District Court of Appeal of Florida, Third District.

August 1, 2007.

Rehearing Denied September 11, 2007.

David S. Molansky, for appellant.

Bill McCollum, Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.

Before RAMIREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.

LAGOA, J.

After this court reversed and remanded for a new trial in Thornton v. State, 852 So.2d 911 (Fla. 3d DCA 2003)("Thornton I"), the State tried and convicted the defendant for a second time on the charges of first-degree murder and armed robbery. For the reasons set forth below, we are obliged to reverse the defendant's conviction.

I. FACTUAL HISTORY

In 1998, the defendant, Thornton, along with a co-defendant, was charged with the first-degree murder and armed robbery of Garyn Perriman. Thornton was also charged with unlawful possession of a firearm while engaged in a criminal offense and grand theft of a motor vehicle. After a jury trial, Thornton was convicted of first-degree murder and armed robbery. In Thornton I, we reversed that conviction for two reasons, one of which related to the following question asked by the prosecutor to a state witness, Luis Varnado:

Q. Did Defendant Thornton talk to you about an incident, where something he did by club V.I.P. or near club V.I.P.?

A. No.

Q. Did Mr. Thornton tell you that he had to quote unquote, "Burn a n____r near the V.I.P.?"

Id. at 911. This Court held that, among the several errors which resulted from this statement, was a violation of the rule established in Williams v. State, 110 So.2d 654 (Fla.1959). As we stated:

It is difficult to imagine a more serious violation of the rules of evidence and due process, indeed of the rule of law itself, than this statement. . . . [Because] it was not shown to be related to the crime with which Thornton was charged, the question was in simultaneous violation of several important principles of law. These include: 1. the principle of Williams v. State, 110 So.2d 654 (Fla. 1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), which forbids references to alleged prior unrelated offenses purportedly committed by the defendant . . . .

Thornton, 852 So.2d at 911 (footnote omitted). Thus, in Thornton I, we held that any reference to a statement made by Thornton as to any incident near or by the "V.I.P." was improper, as the statement referred to prior unrelated offenses committed by Thornton. See id.

Despite our ruling on this issue in Thornton I, the State successfully introduced testimony regarding the statement in Thornton's retrial. Over defense counsel's objection, the State relied upon the statement in its opening argument.¹ During the trial, defense counsel again objected to Varnado's testimony regarding the statement.² The State then proffered Varnado's testimony, and argued that the statement regarding the "V.I.P." was in fact a confession to the charged crime rather than a collateral crime.³ The trial court ultimately found that the statement "related to" Perriman's murder.⁴ As a result, the trial court permitted Varnado to testify regarding the statement.⁵ Detective Ford, the lead investigator of the crime, also testified about Thornton's statement to Varnado.⁶ The State relied upon the statement in its closing argument, in which it characterized the statement as a "confession,"⁷ and again in its rebuttal.⁸

II. ANALYSIS

The doctrine of the law of the case requires that "questions of law actually decided on appeal govern the case in the same court and the trial court, through all subsequent stages of the proceeding." See State v. McBride, 848 So.2d 287, 289 (Fla.2003); Florida Dep't of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001); U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061 (Fla.1983); State, Dep't of Revenue v. Bridger, 935 So.2d 536, 538 (Fla. 3d DCA 2006). This doctrine "is limited to rulings on questions of law actually presented and considered on a former appeal." U.S. Concrete, 437 So.2d at 1063; see also Juliano, 801 So.2d at 106 ("Additionally, the law of the case doctrine may foreclose subsequent consideration of issues implicitly addressed or necessarily considered by the appellate court's decision."). These rulings are then, necessarily, "except in exceptional circumstances, no longer open for discussion or consideration in subsequent proceedings in the case." Greene v. Massey, 384 So.2d 24, 28 (Fla.1980). A trial court, therefore, generally lacks discretion to change the law of the case. Bridger, 935 So.2d at 539. There are two exceptions to the confines of the doctrine: first, a trial court is not bound to follow the prior ruling if the facts upon which the prior ruling was made are no longer the facts of the case; and, second, an appellate court may reconsider and correct an erroneous ruling that has become the law of the case where a manifest injustice would result. See Juliano, 801 So.2d at 106.

In the present case, the doctrine of the law of the case precluded the trial court from finding that Thornton's alleged statement of his actions at the "V.I.P." was a reference to the charged crime. In Thornton I, the State introduced the statement during the attempted impeachment of Varnado and we held that the statement was improper testimony of a collateral bad act as "it was not shown to be related to the crime with which Thornton was charged." Thornton I, 852 So.2d at 911. In the retrial, the State made the same argument that it did in Thornton I, and the trial court concluded that the testimony was admissible because it "related to this incident." Because this issue was actually presented, considered, and ruled upon by this Court in Thornton I, the trial court's ruling on this issue was error. Additionally, given the State's argument in closing that the "confession" meant that "this is not a close case," the error cannot be considered harmless. See Valley v. State, 860 So.2d 464, 469 (Fla. 4th DCA 2003).

At oral argument, in an attempt to invoke one of the exceptions to the law of the case doctrine, the State argued that the facts in the retrial were different from those in Thornton I, and the trial court therefore could consider the issue of the admissibility of the statement. Specifically, the State asserted that, unlike Thornton I, in the retrial Detective Ford testified that his investigation revealed there had been no incidents involving a shooting at or near the "V.I.P.".⁹ Initially, we note that this argument was not made to the trial court and therefore not preserved. Indeed, the State did not make this argument in its answer brief, but instead first raised it at oral argument.

Even assuming that this issue was preserved, which it was not, we find unconvincing the State's argument that sufficient new facts were presented to the trial court in order to allow admission of this statement. First, Varnado — the only person with actual knowledge of Thornton's statement regarding the incident at the V.I.P. — testified that he did not understand Thornton to be referring to the crime charged in this case.¹⁰ Moreover, Detective Ford's search in the city database covering only a three-month period is, by itself, insufficient to qualify as new facts sufficient to avoid our prior ruling. As this Court pointed out during oral argument, not every shooting is reported to the police. Consequently, Detective Ford's testimony — without more — is insufficient to link Thornton's statement regarding the V.I.P. to the Perriman murder and the prior law of case remains. We therefore find that the facts established in Thornton I remained unchanged in the retrial and admission of the statement constitutes error requiring reversal.

Finally, we also write to address another issue raised by the defendant. Thornton's defense below was that of alibi and misidentification. Three eyewitnesses, Chavarri, Pender, and Davis, testified about the shooter's description. Chavarri testified that the shooter was a light-skinned, short-haired, and relatively short (approximately 5'7") black male, weighing approximately 165 pounds. During cross-examination, Detective Ford confirmed that two of the witnesses' descriptions matched that of a man whom Thornton had independently identified as the actual perpetrator of the crime.¹¹ When the State recalled Detective Ford to explain the process by which he ordered fingerprint cards, he also testified that he ordered fingerprints of the man whom Thornton had identified. During cross-examination, defense counsel sought to admit a photograph of the man, and the State objected contending that the photograph was irrelevant and constituted collateral evidence. Defense counsel argued that the photograph was relevant to Thornton's alibi and misidentification defense. The trial court sustained the objection, concluding that the photograph was "rooted in self-serving hearsay."¹²

The trial court erred in sustaining the State's objection to the introduction of the photograph. Absent a valid evidentiary objection, it is error for a trial court to deny the admission of evidence that tends to support the defendant's theory of the case. See Moreno v. State, 418 So.2d 1223, 1225 (Fla. 3d DCA 1982)("Where evidence tends, in any way, even indirectly, to prove a defendant's innocence, it is error to deny its admission."); see also Rivera v. State, 561 So.2d 536, 539 (Fla.1990)("[W]here evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant's guilt, it is error to deny its admission. . . . [T]he admissibility of this evidence must be gauged by the same principle of relevancy as any other evidence offered by the defendant."); Dean v. State, 916 So.2d 962 (Fla. 4th DCA 2005)(error for trial court to exclude pawn slip signed by a person using a different name than defendant and to exclude fingerprint on pawn slip not matching defendant when defenda...