Trease v. State

• Decision Date: 17 August 2000
• Docket Number: No. SC89961.,SC89961.
• Citation: 768 So.2d 1050
• Parties: Robert TREASE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

768 So.2d 1050

Robert TREASE, Appellant, v. STATE of Florida, Appellee.

No. SC89961.

Supreme Court of Florida.

August 17, 2000.

Rehearing Denied October 11, 2000.

James Marion Moorman, Public Defender, and Andrea Norgard, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Robert J. Landry, Assistant Attorney General, Tampa, Florida, for Appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty on Robert Trease. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm the convictions and sentence.

On August 17, 1995, Hope Siegel arranged a date with the victim, Paul Edenson, so Trease could learn where the victim hid his safe. When Siegel arrived at the victim's home they talked for a while, after which Siegel departed and walked to Trease's location, and told him that the victim did not have a safe. Trease followed her back to the victim's house where he surprised the victim and battered him in an effort to get the sought-after information. Upon the victim's insistence that he did not have a safe in the house, Trease told Siegel to get a gun which Trease put to the victim's head as he continued the questioning. The victim remained uncooperative so Trease fired a nonlethal bullet into his head and then sent Siegel for a knife with which he cut the victim's throat. An expert medical witness testified that the victim would have died a few minutes later.

Subsequent to their arrest, Trease denied any knowledge of the crime, but Siegel made a taped statement implicating both. The State had no physical evidence tying Trease to the crime, so Siegel's testimony was critical at trial. The jury found Trease guilty of first-degree murder, burglary, and robbery with a firearm.

During the penalty phase of the trial, the State submitted aggravating evidence that Trease had been previously convicted of several violent felonies; that the murder was committed to facilitate a burglary or robbery, to gain a pecuniary interest, and to avoid lawful arrest; and that the murder was heinous, atrocious, and cruel. Trease submitted mitigating evidence that he was abused as a child, that he adjusted well to incarceration, that he helped prevent the suicide of an inmate, and that Siegel had received a disparate sentence. The trial court imposed the death sentence¹ in compliance with the jury's eleven-to-one vote and Trease filed the instant appeal.

Trease argues on appeal that the trial court abused its discretion in denying his motion for the appointment of co-counsel based on his pretrial argument that his court-appointed counsel would lack credibility with the sentencing jury after having lost in the guilt phase. The appointment of multiple counsel to represent an indigent defendant is within the discretion of the trial court judge, and is based on a determination of the complexity of the case and the attorney's effectiveness therein. See Ferrell v. State, 653 So.2d 367, 369-70 (Fla.1995)

; Armstrong v. State, 642 So.2d 730, 737 (Fla.1994). Here, the trial court properly denied Trease's request because he failed to show that the case was so complex that co-counsel was necessary. Furthermore, the trial court emphasized that he specifically appointed Trease's defense counsel because he could handle the case since he was one of the best capital defense attorneys in their circuit. The trial court also stated that counsel could take as much time as he needed to prepare the defense, and invited Trease to renew the request if he could make a better showing of a need for co-counsel. We find no abuse of discretion.²

Trease next claims that the trial court erred in denying his motion for new counsel based on his attorney's legal advice and two generalized statements not concerning this case. When a defendant requests that the trial court discharge his court-appointed attorney for ineffective assistance, the court is obligated to determine whether adequate grounds exist for the attorney's discharge. See Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.1988)

(holding that a motion to discharge counsel for incompetence requires that the trial court inquire into the actual effectiveness of counsel); Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973). If the court finds that the defendant does not have a legitimate complaint, then the court is required to advise the defendant that if his request to discharge is granted, the court is not required to appoint substitute counsel and that the defendant would be exercising his right to represent himself. See Hardwick, 521 So.2d at 1074. If the defendant still desires to discharge his counsel, the court must determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

In the present case, the trial court properly denied Trease's motion because he failed to state a legitimate reason for discharge. Trease's displeasure with defense counsel's negative response to his desire to file a motion to change venue was not an adequate reason to support discharge because counsel properly advised Trease that such a motion was untimely in that the trial court would not grant such a motion without first trying to empanel an impartial jury. Moreover, Trease's displeasure with counsel's advice regarding a plea offer entailing life imprisonment was not a sufficient reason for discharge. Defense counsel's theoretical statement regarding a heightened level of work for a client he knew to be 100% innocent and his impression that most of his clients were guilty do not support a finding of incompetence. Finally, Trease repeatedly stated that he did not want to represent himself.³ We find no abuse of discretion.

Trease further claims that the trial court abused its discretion in granting the State's pretrial motion in limine, thereby prohibiting the defense from cross-examining Siegel regarding her alleged $200 per day cocaine habit without defense counsel first proffering to the trial court the sought-after testimony. The trial court relied on Edwards v. State, 548 So.2d 656 (Fla.1989), wherein this Court held that the introduction of evidence of drug use for the purpose of impeachment would be excluded unless:

(a) it can be shown that the witness had been using drugs at or about the time of the incident which is the subject of the witness's testimony; (b) it can be shown that the witness is using drugs at or about the time of the testimony itself; or (c) it is expressly shown by other relevant evidence that the prior drug use affects the witness's ability to observe, remember, and recount.

Id. at 658. To that end, the trial court in the instant case ordered that

the defense is hereby prohibited from mentioning in front of the jury or eliciting testimony from any witness without first proffering said testimony outside the presence of the jury concerning the following:

. . . .

4. That Hope Siegel ever used or ingested any controlled substances other than at or about the time of the homicide or at or about the time of Hope Siegel's trial testimony, unless the defense demonstrates via a proffer of testimony [or] by other relevant evidence that any prior drug use affected Hope Siegel's trial testimony with respect to her ability to observe, remember and recount.

During cross-examination, the defense did not attempt to establish via a proffer that there was testimony regarding cocaine use that it wanted to elicit and that the testimony satisfied Edwards.⁴ Having failed to demonstrate the relevancy of the sought-after testimony by way of proffer, Trease cannot now claim error. See Finney v. State, 660 So.2d 674, 684 (Fla.1995)

("Without a proffer it is impossible for the appellate court to determine whether the trial court's ruling was erroneous and if erroneous what effect the error may have had on the result."); Lucas v. State, 568 So.2d 18, 22 (Fla.1990)(holding that a party's failure to proffer what a witness would have said on cross-examination renders an alleged trial court error in the exclusion thereof unpreserved). We find no error.⁵

Trease also claims that the trial court erred in assigning "little or no" weight to a nonstatutory mitigating factor in the sentencing order. The relative weight given each mitigating factor is within the discretion of the sentencing court. See Campbell v. State, 571 So.2d 415, 420 (Fla.1990)

. This Court has permitted trial courts to assign "little or no" or "little to no" weight to such factors. See Wike v. State, 698 So.2d 817, 819 n. 1, 823 (Fla.1997)(little or no), cert. denied, 522 U.S. 1058, 118 S.Ct. 714, 139 L.Ed.2d 655 (1998); Sims v. State, 681 So.2d 1112, 1119 (Fla.1996)(little to no). These findings, however, are inconsistent with this Court's holding in Campbell that "a mitigating factor once found cannot be dismissed as having no weight" since "little to no" or "little or no" incorporates the possibility that the mitigating factor though found has been accorded no weight. 571 So.2d at 420; see Gudinas v. State, 693 So.2d 953, 966 (Fla.1997).

We hereby recede from our opinion in Campbell to the extent it disallows trial courts from according no weight to a mitigating factor and recognize that there are circumstances where a mitigating circumstance may be found to be supported by the record, but given no weight. The United States Supreme Court has held that a sentencing jury or judge may not preclude from consideration any evidence regarding a mitigating circumstance that is proffered by a defendant in order to receive a sentence of less than death. See Hitchcock v. Dugger, 481 U.S. 393, 394, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987)

; Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Nevertheless, these cases do not preclude the sentencer from according the mitigating factor no...