Turner v. State
| Decision Date | 14 May 1987 |
| Docket Number | No. 67987,67987 |
| Citation | 12 Fla. L. Weekly 238,530 So.2d 45 |
| Parties | 12 Fla. L. Weekly 238, 13 Fla. L. Weekly 426 William T. TURNER, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Clyde M. Collins, Jr., Jacksonville, for petitioner.
Robert A. Butterworth, Atty. Gen., and Royall P. Terry, Jr., Asst. Atty. Gen., Tallahassee, for respondent.
We have for review the first-degree murder convictions of William T. Turner. The court imposed the jury recommended sentences of life imprisonment for the stabbing death of Turner's estranged wife, Shirley, and death for the stabbing death of Joyce Brown. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.
We previously relinquished jurisdiction to the trial court on Turner's request for an evidentiary hearing regarding his claimed involuntary absence from crucial stages of trial. Defense counsel asserted the attorney-client privilege on Turner's behalf, * during Turner's testimony and the testimony of Turner's trial counsel. He, thus, successfully prevented disclosure of conversations necessary for a determination of whether Turner waived his absence through counsel or acquiesced in counsel's waiver. Relying, inter alia, on Francis v. State, 413 So.2d 1175 (Fla.1982), he now claims that, since the record fails to show an affirmative waiver or acquiescence, he is entitled to a new trial. We disagree.
The record is silent only because Turner's counsel thwarted the requested evidentiary inquiry by asserting Turner's attorney-client privilege. The attorney-client privilege is not absolute and "may be outweighed by public interest in the administration of justice in certain circumstances." Sepler v. State, 191 So.2d 588, 590 (Fla. 3d DCA 1966). Section 90.502, Florida Statutes (1985), Lawyer-Client Privilege, provides in part:
(4) There is no lawyer-client privilege under this section when:
....
(c) A communication is relevant to an issue of breach of duty by the lawyer to his client ... arising from the lawyer-client relationship.
Further, "a lawyer who represents a client in any criminal proceeding may reveal communications between him and his client when accused of wrongful conduct by his client concerning his representation where such revelation is necessary to establish whether his conduct was wrongful as accused." Wilson v. Wainwright, 248 So.2d 249, 259 (Fla. 1st DCA 1971). See also Laughner v. United States, 373 F.2d 326 (5th Cir.1967); Bennett v. State, 293 So.2d 1 (Miss.1974) (citing Wilson). The Rules Regulating The Florida Bar are in accord:
4-1.6 Confidentiality of information
....
(c) A lawyer may reveal such information to the extent the lawyer believes necessary:
................................................................................
* * * (4) To respond to allegations in any proceeding concerning the lawyer's representation of the client; ...
Despite protestations to the contrary, Turner bases his involuntary absence claim on the alleged breach of defense counsel's duty. Specifically, he claims counsel failed to advise him of his right to voir dire and charge conference participation. In addition, he denies authorizing counsel to waive his presence, thereby implying that counsel did in fact waive his presence without his consent.
Accordingly, we find that Turner no longer has any attorney-client privilege as to communications concerning his crucial stage presence or waiver thereof. In an abundance of caution aimed at protecting Turner's constitutional right to be present at critical stages of his trial, we again relinquish jurisdiction to the Circuit Court of the Fourth Judicial Circuit in and for Duval County, Florida, for a determination of whether Turner's presence was properly waived. Since a finding that Turner was erroneously denied his critical stage presence will be dispositive of this case, we temporarily withhold review of the remaining issues raised on this appeal.
It is so ordered.
William T. Turner appeals his first-degree murder convictions and sentences of life imprisonment for the murder of his wife, Shirley Turner, and death for the murder of her roommate, Joyce Brown. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the convictions and sentences.
Turner broke into his estranged wife's apartment and stabbed her twenty-two times in the presence of their daughter, Anetra. Shortly thereafter, he stabbed Shirley's roommate, Joyce Brown, while she called the police from a nearby telephone booth. The jury found Turner guilty of the murders and recommended life imprisonment for the first murder and death for the second. The court found four aggravating factors as to Brown's murder: (1) Turner was previously convicted of a violent capital felony; (2) Turner committed the murder during a burglary; (3) the murder was heinous, atrocious and cruel; and (4) the murder was cold, calculated and premeditated. Finding that the aggravating factors far outweighed the statutory and nonstatutory mitigating factors, the court imposed the jury's recommended sentence of death.
Turner raises twelve issues on appeal, only four of which require discussion. 1 He first argues that he is entitled to a new trial because of his claimed involuntary absence from the voir dire conference. The record shows that at the close of voir dire examination, the trial judge stated:
Now, ladies and gentlemen, it's going to be necessary that I have a brief conference with the attorneys involved in the case. I'm not going to let anybody go anywhere, but we're going to retire to the chambers back here briefly and we'll be in recess.
The judge and counsel then removed themselves to chambers for the exercise of juror challenges, leaving Turner in the courtroom. We recognized in Francis v. State, 413 So.2d 1175, 1177 (Fla.1982), that the defendant
has the constitutional right to be present at the stages of his trial where fundamental fairness might be thwarted by his absence. Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934). See also Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Florida Rule of Criminal Procedure 3.180(a)(4) recognizes the challenging of jurors as one of the essential stages of a criminal trial where a defendant's presence is mandated. This rule expressly provides:
(a) Presence of Defendant. In all prosecutions for crime the defendant shall be present:
....
(4) At the beginning of the trial during the examination, challenging, impanelling, and swearing of the jury; ...
We relinquished jurisdiction to the trial court for an evidentiary hearing regarding the voluntariness of Turner's absence. The trial court found that he had waived his right to be present, stating in pertinent part:
This court finds:
a. Mr. Smith testified that he did not advise Turner that he had a right to be present in the jury room when the challenges--which had already been agreed upon by the defendant and his attorneys--were announced, nor did they specifically discuss the question of his being or not being in the jury room (July 28, 1987, Tr. p. 27).
b. Mr. Smith had visited Turner in the jail and familiarized him with the progression of a trial, including some discussion of the jury selection process.
c. During the jury selection process (in open court), Mr. Smith questioned Turner concerning his (Turner's) impressions of the prospective jurors and if there was any prospective juror he did not want (July 28, 1987, Tr. p. 29).
d. Mr. Smith advised Turner concerning the attorney's intentions as to challenges of certain jurors. Turner was asked if he liked any of these people (July 25, 1987, Tr. p. 29).
e. Mr. Smith testified: that he saw no difference between the way the jury challenges were handled in the jury room or in the same room with Turner. "[W]e were going to do the same thing after we had discussed it with him" (emphasis added) (July 28, 1987, Tr. p. 30).
f. Mr. Smith explained to Turner that both the State and the defense can take people off the jury for no reason at all (July 28, 1987, Tr. p. 35).
g. During voir dire, after each of the two questioning sessions (in open court), the defendant and his attorneys discussed who they liked and who they wanted to challenge among the prospective jurors (July 28, 1987 Tr. p. 36, 38-39). After each challenging session, the defendant was informed by counsel, which veniremen remained for jury service (July 28, 1987, Tr. 40).
The trial jury was selected on August 12, 1985. During that voir dire process, the defendant only exercised 9 of the 10 peremptory challenges allotted to him. The jury was not sworn until August 13, 1985. The defendant saw and was fully informed by counsel on August 12, 1985, which veniremen were on the jury. The defendant never expressed dissatisfaction with his jury and never sought to exercise the remaining challenge on August 13, 1985, before the jury was sworn (July 28, 1987, Tr. p. 16, 17-18 & September 19, 1986, Tr. p. 147).
h. Neither counsel nor any other witness in these proceedings was aware of anything done by anyone to prevent Turner from going into the jury room with his attorneys (July 28, 1987, Tr. p. 43).
The record reflects that all the bailiffs who participated in this trial during voir dire, stated that the defendant never requested to go to the jury room during the challenging session. They all stated that if the defendant had made such a request, or any request at all, they would have honored his request or at the very least, brought it to the attention of the trial judge or the defense attorneys.
This court specifically finds that the defendant never requested to be present in the jury room during the time when the challenges--already agreed upon by the defendant and his attorneys--were...
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