Tumulty v. State, 84-2505
| Decision Date | 28 May 1986 |
| Docket Number | No. 84-2505,84-2505 |
| Citation | 489 So.2d 150,11 Fla. L. Weekly 1211 |
| Parties | 11 Fla. L. Weekly 1211 Jean TUMULTY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Jeffrey Anderson, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Carolyn V. McCann, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant, Jean Tumulty, was indicted by a grand jury for the first degree murder of Frank Marrs. She was found guilty by a trial jury of first degree murder and sentenced to life imprisonment with a mandatory minimum of twenty-five years.
The evidence most favorable to the jury verdict indicates that Tumulty was a drug broker who acted as a middleman between drug smugglers and buyers of the contraband. Between August and November, 1980, Tumulty did business with her close friend and business associate, Judy Haas, in finding buyers for drugs, which Haas smuggled into the United States. Haas owned a Cessna Queenaire airplane, which transported the drugs from points outside the United States to locations in the United States. The cast of characters involved herein, besides Tumulty and Haas, are Frank Marrs, the victim of this crime, and George Kersting, who piloted Haas' plane on various smuggling operations. Gary Childers also worked for Haas. John Parella worked for Tumulty and assisted in the distribution of the drugs when they arrived stateside. Haas had successfully smuggled three loads of marijuana into Sylvester, Georgia, and Tumulty participated in the distribution thereof to various buyers. In a fourth operation, carried out by Haas, Frank Marrs was the pilot. Tumulty was not directly involved. When Haas was unable to sell the contraband and, thus had not paid Marrs, Marrs decided to keep possession of the Cessna. That fatal decision was apparently his undoing. Without the plane Hass's operation, as well as Tumulty's, was effectually shut down.
On the evening of December 29, 1980, Tumulty, Haas, Childers and Parella met at Tumulty's house to discuss ways to recover the Cessna from Marrs. The options discussed were to get a different pilot to fly the plane away from the location where Marrs had it; have Parella "persuade" Marrs to return the plane; or, as Childers heard Tumulty say, "kill the greedy bastard." The next day, during a further meeting on the same subject, Parella heard Tumulty offer Parella's services to kill Marrs. Later that day Haas and Childers met with Marrs without success. As a result, Haas was upset and told Childers to call Tumulty to get "our friend" ready. After Childers and Parella were unable to get Marrs to release the plane, Tumulty told Childers to tell Parella to "take care of Frank." Childers, Parella and Marrs then went to look at an airstrip and, during their trip, Parella killed Marrs. Upon their return they advised Tumulty that everything had been taken care of. Tumulty is quoted as asking Parella if he was sure Marrs was dead or was he going to come crawling out of the woods. This apparently had reference to Parella's previous failure to kill an intended victim. When Marrs's body was later found, Tumulty told Parella if he had just called her, she could have told him where to dump the body so it would never be found.
Tumulty took the stand and, of course, denied all of the inculpatory statements charged to her.
Six points are presented in this appeal. The first involves a denial of Tumulty's motion to dismiss the indictment because the grand jury was improperly empaneled according to the dictates of section 90.501, Florida Statutes (1983). The last point contends error was committed in the denial of Tumulty's motion for mistrial, based upon the cumulative effect of the many errors allegedly committed. We have carefully considered both of said points and find no reversible error demonstrated therein.
In another point, Tumulty contends error was committed by the court in failing to require the state to furnish the present address of Parella, Childers and Kersting, pursuant to Florida Rule of Criminal Procedure 3.220(a)(1)(i). Tumulty knew the identities of the mentioned witnesses, their prior addresses and other prior information. The problem issue presented is that Parella and Kersting were in the federal witness protection program and Childers, though not actually in the program, was being funded so that he might move from place to place to prevent identification. The evidence is that all of them were in fear of reprisals because they had testified against Haas and Tumulty during their prior criminal conviction in Georgia. Tumulty contended the addresses were needed to check out some allegedly inconsistent statements. She argued that the foregoing rule required that she be furnished the addresses; that the personal safety exception to the rule was to be narrowly applied, relying on State v. Hassberger, 350 So.2d 1 (Fla.1977). We find that the cases relied on by Tumulty, Pena v. State, 432 So.2d 715 (Fla. 3d DCA 1983) and Garcia v. State, 379 So.2d 441 (Fla. 3d DCA 1980), are inapposite because of our peculiar facts, i.e., appellant's familiarity with all of the prior facts and the known identity of the witnesses. In any event, the court considered the arguments of counsel and concluded that Tumulty had failed to demonstrate the requisite need to support such an order. We find no error involved in that decision under the facts of this case.
Next, Tumulty complains of the trial court's ruling admitting hearsay statements of Haas without independent evidence of a conspiracy between Haas and Tumulty. Of course, resolution of these evidentiary questions is for the court in its sound discretion and will not be disturbed absent an abuse thereof. Booker v. State, 397 So.2d 910 (Fla.), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981); Ashley v. State, 370 So.2d 1191 (Fla. 3d DCA 1979). The foundation for the admission of said hearsay was the testimony of Parella and Childers, who were present, heard and participated in various of the discussions between the co-conspirators. It is clear that the record in this case will support a jury's finding of a conspiracy. A resume of that evidence from appellee's brief is:
Testimony established that Appellant and Judy were close friends as well as business associates who worked together in a sophisticated drug smuggling operation. Judy Haas smuggled drugs into the country and Appellant acted as her broker. Both women had an interest in seeing that the drugs were purchased. Appellant herself testified that she became involved with the fourth load of marijuana when she flew...
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