Valle v. State, 72328

• Decision Date: 02 May 1991
• Docket Number: No. 72328,72328
• Citation: 16 Fla. L. Weekly 303,581 So.2d 40
• Parties: 16 Fla. L. Weekly 303 Manuel VALLE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 40

581 So.2d 40

16 Fla. L. Weekly 303

Manuel VALLE, Appellant, v. STATE of Florida, Appellee.

No. 72328.

Supreme Court of Florida.

May 2, 1991.

Rehearing Denied July 15, 1991.

Louis M. Jepeway, Jr., Miami and Michael A. Mello of Vermont Law School, South Royalton, Vt., for appellant.

Robert A. Butterworth, Atty. Gen. and Richard L. Polin, Asst. Atty. Gen., Miami, for appellee.

PER CURIAM.

Manuel Valle appeals his death sentence for the 1978 murder of Officer Louis Pena. We have jurisdiction under article V, section 3(b)(1) of the Florida Constitution.

This Court originally reversed Valle's conviction and sentence of death on the ground that his counsel had not been given an adequate time to prepare for his defense. Valle v. State, 394 So.2d 1004 (Fla.1981). Following a retrial, we affirmed Valle's conviction and death sentence. Valle v. State, 474 So.2d 796 (Fla.1985). Thereafter, upon remand from the United States Supreme Court ¹ for further consideration in light of Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), we remanded the case for a new sentencing proceeding. Valle v. State, 502 So.2d 1225 (Fla.1987).

We detailed the facts of this murder in Valle, 474 So.2d at 798:

On April 2, 1978, Officer Louis Pena of the Coral Gables Police Department was on patrol when he stopped appellant and a companion for a traffic violation. The events that followed were witnessed by Officer Gary Spell, also of the Coral Gables Police Department. Officer Spell testified that when he arrived at the scene, appellant was sitting in the patrol car with Officer Pena. Shortly thereafter, Spell heard Pena use his radio to run a license check on the car appellant was driving. According to Spell, appellant then walked back to his car and reached into it, approached Officer Pena and fired a single shot at him, which resulted in his death. Appellant also fired two shots at Spell and then fled. He was picked up two days later in Deerfield Beach. Following his jury trial, appellant was also found guilty of the attempted first-degree murder of Spell and after a non-jury trial, he was found guilty of possession of a firearm by a convicted felon.

At the resentencing hearing, the jury recommended a sentence of death by an eight-to-four vote. The court then imposed the death penalty, finding in aggravation that: 1) Valle had been previously convicted of another violent felony; 2) the murder was of a law enforcement officer; 3) the murder was for the purpose of preventing lawful arrest; 4) the murder hindered the enforcement of laws; and 5) the murder was cold, calculated, and premeditated. ² The judge merged factors 2, 3, and 4, treating them as only one aggravating factor. The judge did not find any mitigation.

Valle's first claim on this appeal is that during jury selection the judge failed to hold an adequate inquiry into the state's peremptory challenges of black venire members. He argues that this constitutes reversible error under the principles established in State v. Slappy, 522 So.2d 18 (Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988), and State v. Neil, 457 So.2d 481 (Fla.1984). We reject this claim because, as demonstrated in the following facts, Valle failed to preserve the issue for appeal.

After the jury had been selected but before it had been sworn, one of Valle's attorneys claimed "an impropriety in the record" as to the state's use of peremptory challenges against certain jurors. The defense attorney noted that six blacks and two Hispanics were peremptorily excused by the state. The judge then observed that if there was a problem with any particular juror he wanted "the state to be able to respond in whichever manner they wish." One of the prosecutors then asked the judge if he was making a finding that the state had somehow improperly excused jurors. The judge responded, "I've been asked to make no findings and I am making no findings but for record-keeping purposes she has some objection to the state's action and, of course, I'm giving the state an opportunity to respond in time." The state then voluntarily gave its reasons for peremptorily excusing the eight jurors. ³ After the prosecutor finished giving his reasons for exercising the peremptory challenges, the defense attorney stated, "I object on the basis of [Valle's] Sixth, Eighth and 14th amendment rights, to the combination of the challenges for cause, either peremptory challenges leading to a jury that is in favor of the death penalty."

This Court has previously set out the procedure to be followed under these circumstances. There must be an objection that the challenges are being exercised in a racially discriminatory manner. At this point, the judge should determine if there has been a prima facie showing that there is a strong likelihood that the jurors have been challenged because of their race. Neil. If legitimate reasons for the challenges are not apparent from the jurors' statements but there are other reasons why the challenges do not appear to be racially motivated, the judge should note these reasons on the record. If the judge rules that a prima facie showing has been made, the burden shifts to the challenging party to demonstrate valid, nonracial reasons why each minority juror has been stricken. Thompson v. State, 548 So.2d 198 (Fla.1989). The judge must then evaluate the proffered reasons in deciding whether the objection is well taken.

We believe that under the facts of this case Valle did not properly preserve this issue for appeal. When Valle's attorney first referred to the state's use of peremptory challenges, the judge specifically noted that he had not been asked to make any finding. The defense did not ask the judge to find that it had carried its initial burden of showing that there was a strong likelihood that the jurors were challenged because of their race. After the prosecution volunteered its reasons for challenging the eight jurors, the defense again did not ask the judge to find that it had carried its burden of showing that it was substantially likely that the jurors were challenged because of their race. The only objection that the defense made after the prosecutor gave his reasons for using the peremptory challenges was that the challenges were used to create a jury in favor of the death penalty. This objection certainly cannot be interpreted to preserve the issue of the adequacy of a judge's inquiry under Neil and Slappy. ⁴

The next issue Valle raises is whether the trial judge should have allowed the defense to exercise a peremptory challenge after the jury was sworn but prior to any testimony. Florida Rule of Criminal Procedure 3.310 provides that a trial court "may, for good cause, permit [a challenge] to be made after the juror is sworn, but before any evidence is presented." After the jury was sworn in this case, the state learned of information about one of the jurors and promptly advised the defense and the judge. The victim's first wife, who was in the audience, told the prosecutors that she recognized one of the jurors because her employer had borrowed money from him in order to loan it to her approximately one and one-half years prior to the trial. She said she did not believe he recognized her because she looked different at the present time. Valle's attorney sought to exercise a peremptory challenge of this juror. However, the defense declined the judge's offer to ask either the juror, separately, or all of the jurors, generally, if they recognized anyone in the courtroom. The judge did not allow the challenge, finding that the new information did not constitute good cause for a challenge. ⁵

Valle argues that the challenge was "for good cause" because the defense did not learn of this information until after the jury was sworn. He argues that the "for good cause" requirement should be interpreted as relating to the point in time that the party seeking to use the challenge discovers the information on which the challenge is based. He essentially argues that a trial court cannot look at the underlying information on which such a challenge is based as long as the information was not available until after the jury was sworn.

We reject this interpretation of rule 3.310. Rule 3.310 vests the trial court with discretion to determine whether the newly discovered information constitutes good cause for a challenge. A trial court certainly may consider the reason for a challenge on its merits when determining whether the challenge is "for good cause." The fact that the information was discovered after the jury was sworn does not of itself constitute good cause as a matter of law under the rule, ⁶ depriving the trial judge of the discretion to determine whether the new information constitutes good cause.

Valle next claims that the trial judge erred because he allowed the state to retry its entire case as to guilt. We have previously held

that it is within the sound discretion of the trial court during resentencing proceedings to allow the jury to hear or see probative evidence which will aid it in understanding the facts of the case in order that it may render an appropriate advisory sentence. We cannot expect jurors impaneled for capital sentencing proceedings to make wise and reasonable decisions in a vacuum.

Teffeteller v. State, 495 So.2d 744, 745 (Fla.1986). Further, during resentencing the state must prove the aggravating circumstances beyond a reasonable doubt. King v. State, 514 So.2d 354 (Fla.1987), cert. denied, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 947 (1988). We find that the trial judge did not abuse his discretion in the amount of evidence he allowed the state to present in this case.

Valle further claims that his prior death sentence became a feature of the resentencing proceeding. At the outset, it should be noted that Valle requested the judge to instruct the jury that he previously had been sentenced to death and that the...