Thorp v. State, SC91663.

Decision Date16 November 2000
Docket NumberNo. SC91663.,SC91663.
Citation777 So.2d 385
PartiesGary Lee THORP, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Division, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, Florida, for Appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Gary Lee Thorp. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For reasons which follow, we reverse appellant's conviction for first-degree murder because we find harmful error in the admission of improper evidence at trial and remand for a new trial.

MATERIAL FACTS

Gary Thorp was convicted of first-degree murder1 and sentenced to death for the murder of Sharon Chase. The record reflects that Chase's nude body was discovered in the bushes in Bean Park on June 24, 1993. Her body was lying face up, with her legs spread apart and knees partially bent. Her shirt had been pulled down to her waist, and her shorts were discovered some thirty feet away from the body. Semen discovered inside the victim's vagina matched Thorp's DNA profile. The medical examiner opined that death was caused by strangulation.2 Thorp subsequently was arrested for the murder of Sharon Chase in October of 1996.

Evidence presented at trial indicates that at approximately midnight on June 23, 1993, the victim and a white male were seen together crossing a bridge into Bean Park near U.S. 1 in Melbourne, Florida. The witness, Paul Symeon, was fishing in the marina across the street from the park and observed Chase and a man enter the park. Symeon described the man as "skinny or lanky," taller than the victim, with a dark complexion and dark, wavy hair. Symeon testified that the two "milled around for a while" and were then approached by another unidentified couple. After approximately ten minutes, Symeon heard rustling sounds in the bushes for a couple of minutes and then heard a sound similar to a moan. When he turned to look, he could not see what was causing the noises. However, Symeon noticed that no one was in the park at that time. At trial, Symeon identified Chase as the woman he had seen in the park. However, Thorp did not fit the physical description given by Symeon of the man he saw with Chase and Symeon could not identify Thorp as being present in the park the night of the crime.

Other evidence at trial revealed that Thorp and another man, William Deering, had been living at the Christ Is The Answer (CITA) Mission in Melbourne. On the night of the homicide, Thorp and Deering both missed the 11 p.m. bed check at the mission and, as a result, were not permitted to sleep there that night. David Gallamore, an employee at the mission, saw Thorp around 1:15 a.m. and noticed Thorp had been drinking and had blood on his shirt and bruises on his knuckles. Gallamore asked Thorp why he missed the earlier bed check. Thorp stated that he had been in a fight at a Burger King restaurant. He also asked Gallamore if Deering had been at the mission that night. In fact, Gallamore saw Deering at the mission at around 12:30 a.m.

Finally, the State presented Timothy Bullock, an inmate housed with Thorp at the Brevard County Jail during the spring of 1994 where Thorp was serving time for an unrelated crime. Bullock testified that Thorp told him that he and another man "took a hooker down by the bridge and did her," during which he got a lot of blood on himself. Bullock testified that Thorp admitted that he expected to be blamed for the Chase murder. In addition, and over defense counsel's objection, Bullock was allowed to testify that he interpreted Thorp's statement that he "did a hooker" to mean that Thorp killed her. Finally, Bullock testified that Thorp had admitted that, in order to be allowed into the mission with blood on his clothes that night, he had told the mission employee that the blood was caused by a fight at Burger King.

The defense did not present any witnesses during the guilt phase of the trial. After deliberation, the jury found Thorp guilty of first-degree murder. During the penalty phase, the State presented two witnesses, the prosecutor and the lead investigating officer in a 1994 murder case in which Thorp pled nolo contendere to a charge of second-degree murder for the fatal stabbing of Randy Appleman. The defense presented several witnesses of their own who testified that Thorp got along with others, was a hard worker, and assisted the mission director as his "right hand man" at the mission where he lived. Both of Thorp's parents testified that Thorp was born prematurely, suffered from cerebral palsy as a child, and ultimately developed a serious drinking problem. Thorp testified on his own behalf about his difficult early life, his cerebral palsy, his struggles with drugs and alcohol, and his checkered educational and employment history. During his testimony Thorp admitted to having consensual sexual intercourse with the victim but denied killing her. Thorp also denied killing Appleman, although he admitted to stealing Appleman's property and forging some of Appleman's checks. Thorp expressed remorse for his past lifestyle but denied killing anyone. The jury recommended a sentence of death by a vote of ten to two, and the trial court followed this recommendation.3

APPEAL

On appeal, Thorp raises seven issues for this court's review.4 We agree with Thorp that reversal is required on two of his claims: claim (1), concerning the trial court's failure to suppress evidence obtained from a substantially misleading affidavit for search warrant, and claim (3), concerning the trial court's error in allowing improper opinion testimony to go to the jury. Because we are reversing Thorp's conviction and sentence based on those asserted errors, we do not address claims (4), (5), (6), and (7) as they are now moot.

Sufficiency of the Evidence

Thorp argues the trial court erred in denying his motion for judgment of acquittal because the State's evidence failed to exclude the reasonable hypothesis of innocence that someone other than Thorp killed the victim. He contends that the DNA evidence proved only that he had sexual intercourse with the victim, not that he killed her. In addition, Thorp further contends that the evidence at trial contradicts the State's theory of how the murder occurred. Although we find prejudicial error with regard to two aspects of the State's case, we nevertheless find that the evidence was sufficient to overcome Thorp's motion for judgment of acquittal.

Because there were no eyewitnesses or other direct evidence of Thorp's commission of the murder, the State's case against Thorp was predicated chiefly upon circumstantial evidence. As we stated in State v. Law, 559 So.2d 187 (Fla.1989):

A special standard of review of the sufficiency of the evidence applies where a conviction is wholly based on circumstantial evidence. Jaramillo v. State, 417 So.2d 257 (Fla.1982). Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. McArthur v. State, 351 So.2d 972 (Fla.1977); Mayo v. State, 71 So.2d 899 (Fla.1954). The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse. Heiney v. State, 447 So.2d 210 (Fla.), cert. denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984); Rose v. State, 425 So.2d 521 (Fla.1982), cert. denied, 461 U.S. 909, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983), disapproved on other grounds, Williams v. State, 488 So.2d 62 (Fla.1986)

.

Law, 559 So.2d at 188. On the basis of the above rule, we held in Law that where the State fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt, the court should grant a motion for judgment of acquittal. Id.

Thorp contends that the State's evidence fails to exclude the possibility that someone other than Thorp killed the victim since several people were seen in the park on the night of the murder and none of the witnesses could actually identify Thorp as the person they observed walking with the victim prior to the murder. He also points out there is no physical evidence that Thorp killed the victim.

The State's principle evidence linking Thorp to the crime includes the DNA evidence, Thorp's statements to his cellmate Bullock, and Thorp's physical appearance and condition on the night of the crime (i.e., that he was observed with blood on his clothing). We conclude that this evidence was sufficient to require this case to be submitted to the jury.

As noted above, the DNA evidence indicates that Thorp was with the victim and had sexual intercourse with her the night of the murder. We recognize that while the DNA evidence, like fingerprint evidence, does not conclusively prove that Thorp committed the murder, cf. Jaramillo v. State, 417 So.2d 257, 257 (Fla.1982)

(disregarding fingerprint evidence where State failed to prove the defendant's fingerprints could only have been placed on items in victim's home at time murder was committed), the DNA evidence supports the State's contention that Thorp was with the victim in the park around the time she was killed.

The other significant evidence against Thorp is his supposed confession of the murder to cellmate Timothy Bullock. While Bullock testified that Thorp admitted he expected to be blamed for the murder of a prostitute, Bullock did not testify that Thorp ever directly admitted to killing the victim.5 His actual statement, according to Bullock was that Thorp and...

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