Tompkins v. State

• Decision Date: 30 December 1986
• Docket Number: No. 67974,67974
• Citation: 12 Fla. L. Weekly 44,502 So.2d 415
• Parties: 12 Fla. L. Weekly 44 Wayne TOMPKINS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 415

502 So.2d 415

12 Fla. L. Weekly 44

Wayne TOMPKINS, Appellant, v. STATE of Florida, Appellee.

No. 67974.

Supreme Court of Florida.

Dec. 30, 1986.

Rehearing Denied March 9, 1987.

James Marion Moorman, Public Defender, Tenth Judicial Circuit, and Robert F. Moeller, Asst. Public Defender, Bartow, for appellant.

Jim Smith, Atty. Gen., and James A. Young, Asst. Atty. Gen., Tampa, for appellee.

BARKETT, Justice.

Wayne Tompkins appeals his conviction for first-degree murder and the sentence of death imposed by the trial judge in accordance with the jury's recommendation. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm both the conviction and sentence.

The victim, Lisa DeCarr, aged 15, disappeared from her home in Tampa on March 24, 1983. In June 1984, the victim's skeletal remains were found in a shallow grave under the house along with her pink bathrobe and jewelry. Based upon a ligature (apparently the sash of her bathrobe) that was found tied tightly around her neck bones, the medical examiner determined that Lisa had been strangled to death. In September 1984, Wayne Tompkins, the victim's mother's boyfriend, was charged with the murder.

At trial, the state's three key witnesses testified as follows. Barbara DeCarr, the victim's mother, testified that she left the house on the morning of March 24, 1983, at approximately 9 a.m., leaving Lisa alone in the house. Lisa was dressed in her pink bathrobe. Barbara met Wayne Tompkins at his mother's house a few blocks away. Some time that morning, she sent Tompkins back to her house to get some newspapers for packing. When Tompkins returned, he told Barbara that Lisa was watching television in her robe. Tompkins then left his mother's house again, and Barbara did not see or speak to him again until approximately 3 o'clock that afternoon. At that time, Tompkins told Barbara that Lisa had run away. He said the last time he saw Lisa, she was going to the store and was wearing jeans and a blouse. Barbara returned to the Osborne Street house where she found Lisa's pocketbook and robe missing but not the clothes described by Tompkins. Barbara then called the police.

The state's next witness, Kathy Stevens, a close friend of the victim, testified that she had gone to Lisa DeCarr's house at approximately 9 a.m. on the morning of March 24, 1983. After hearing a loud crash, Stevens opened the front door and saw Lisa on the couch struggling and hitting Tompkins who was on top of her attempting to remove her clothing. Lisa asked her to call the police. At that point, Stevens left the house but did not call the police. When Stevens returned later to retrieve her purse, Tompkins answered the door and told her that Lisa had left with her mother. Stevens also testified that Tompkins had made sexual advances towards Lisa on two prior occasions.

Kenneth Turco, the final key state's witness, testified that Tompkins confided details of the murder to him while they were cellmates in June 1985. Turco testified that Tompkins told him that Lisa was on the sofa when he returned to the house to get some newspapers for packing. When Tompkins tried to force himself on her, Lisa kicked him in the groin. Tompkins then strangled her and buried her under the house along with her pocketbook and some clothing (jeans and a top) to make it appear as if she had run away.

After the state rested its case, the trial court denied Tompkins' motion for acquittal, finding that the evidence was sufficient to prove premeditation and that the state had established a prima facie case. The defense rested after the close of the state's case without presenting any additional evidence. The jury found Tompkins guilty as charged.

At the penalty phase, the state presented evidence from three witnesses to show that Tompkins had been convicted of kidnapping and rape stemming from two separate incidents in Pasco County which occurred after Lisa DeCarr's disappearance. The defense presented testimony from three witnesses regarding Tompkins' good work record, shy and nonviolent personality, and honesty.

The trial judge, finding three aggravating circumstances (previous conviction of felonies involving the use or threat of violence to the person; ¹ murder committed while the defendant was engaged in an attempt to commit sexual battery; ² murder was especially heinous, atrocious, or cruel) ³ and one statutory mitigating circumstance (defendant's age at the time of the crime), ⁴ followed the jury's recommendation and sentenced Tompkins to death.

Appellant challenges his conviction on four grounds. First, appellant argues that the admission of his confession through Turco's testimony was error because the state had not proven the corpus delicti of the crime by independent evidence. ⁵ State v. Allen, 335 So.2d 823 (Fla.1976). We find no merit in this contention. We first note that appellant never objected to the introduction of the confession at trial. However, assuming arguendo that appellant's motion for judgment of acquittal at the close of the state's case preserved the issue, we find no trial court error. The medical examiner's testimony that, within a reasonable degree of medical certainty, death was caused by strangulation, coupled with the location of the victim's remains in a grave underneath the victim's residence, is more than sufficient to meet the "substantial evidence" standard required under Allen. See id. at 824.

Appellant next argues that the trial court violated his sixth amendment right to confront witnesses by limiting his cross-examination of state's witnesses Barbara DeCarr and Detective K.E. Burke. Appellant contends that curtailment of his right to cross-examine these witnesses prevented him from establishing his defense, i.e., that Lisa DeCarr did in fact run away and met her death sometime after March 24, 1983. We find no violation of appellant's sixth amendment rights. Although wide latitude is permitted on cross-examination in a criminal trial, its scope and limitation lies within the sound discretion of the trial court and is not subject to review except for a clear abuse of discretion. Sireci v. State, 399 So.2d 964, 969-70 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982). The trial court found that each of the questions to which the state objected was irrelevant or called for hearsay testimony. After careful review of the record, we find no abuse of discretion.

In his third point, appellant argues that the trial court erred in permitting the state to elicit certain testimony from Barbara DeCarr on redirect examination. The record reveals that on cross-examination of DeCarr, defense counsel asked DeCarr to confirm that Lisa had never complained to her mother about Tompkins making any type of sexual advances. DeCarr replied, "She never." On redirect, the prosecutor asked whether Lisa had voiced any complaint to DeCarr about Tompkins in February 1983. Finding that defense counsel had opened the door to this line of questioning, the trial court permitted DeCarr to testify that Lisa had begged her not to go back with Tompkins. Appellant contends that the defense did not open the door because his question on cross-examination was limited to complaints about sexual advances. We cannot agree. Generally, testimony is admissible on redirect which tends to qualify, explain, or limit cross-examination testimony. Tampa Electric Co. v. Charles, 69 Fla. 27, 67 So. 572 (1915); Hinton v. State, 347 So.2d 1079, 1080 (Fla. 3d DCA), cert. denied, 354 So.2d 981 (Fla.1977). Moreover, defense counsel's question on cross-examination could have led the jury to infer that Lisa had never complained to her mother about Tompkins. We find that the state was properly allowed to pursue this line of questioning to rebut such an inference. Cf. McCrae v. State, 395 So.2d 1145, 1151-52 (Fla.1980) (state properly entitled to transcend normal bounds of cross-examination in order to negate delusive innuendos of defense counsel), cert. denied, 454 U.S. 1041, 102 S.Ct. 583, 70 L.Ed.2d 486 (1981).

Appellant next argues that death-qualified juries are unconstitutional. This argument has been rejected by this Court, Kennedy v. Wainwright, 483 So.2d 424 (Fla.), cert. denied, 479 U.S. 890, 107 S.Ct. 291, 93 L.Ed.2d 265 (1986), and by the United States Supreme Court in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).

We turn now to appellant's six claims of error in the penalty phase of the proceeding. First, appellant argues that the trial court erred in allowing two police officers to testify as to details of previous crimes he had committed. Appellant acknowledges that details of prior felonies involving the use or threat of violence to the person are properly admitted in the penalty phase of a capital trial and that hearsay testimony is admissible provided the defendant has a fair opportunity to rebut it. § 921.141(1), Fla.Stat. (1985); Perri v. State, 441 So.2d 606, 608 (Fla.1983). He contends, however, that he had no opportunity to rebut or confront the officers' testimony in this case, and that his death sentence must therefore be reversed. We disagree.

We note, first of all, that appellant did not argue at trial, as he does here, that he was denied the opportunity to confront witnesses testifying against him. The record shows that Detective Gell identified Tompkins as the person he had arrested for a kidnapping and rape in Pasco County. When defense counsel objected to "any hearsay testimony" regarding the prior offenses, the trial court sustained the objection, in part, and limited the officer to saying that the victim of that crime was a white female convenience store clerk and that she had identified Tompkins in a lineup. The trial court stated that it would permit the lineup testimony because the officer was present at the lineup. The trial court similarly limited the other officer's testimony to the statement that Tompkins had pleaded...