Watts v. State

• Decision Date: 02 January 1992
• Docket Number: No. 74776,74776
• Parties: 17 Fla. L. Weekly S27 Tony Randall WATTS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 198

593 So.2d 198

17 Fla. L. Weekly S27

Tony Randall WATTS, Appellant, v. STATE of Florida, Appellee.

No. 74776.

Supreme Court of Florida.

Jan. 2, 1992.

Rehearing Denied March 3, 1992.

Nancy Daniels, Public Defender and David A. Davis, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Mark C. Menser, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Tony Randall Watts, a prisoner under sentence of death, appeals his convictions of first-degree murder, armed burglary with an assault, armed robbery, and sexual battery using physical force and sentences attendant thereto. We have jurisdiction under article V, section 3(b)(1) of the Florida Constitution.

Upon returning home from jogging on the morning of February 18, 1988, Glenda Jurado was forced toward her house at gunpoint by a man later identified as Watts. Watts told her he had just been released from prison and needed fifty dollars to leave town. When her husband, Simon, answered the door, Glenda told him Watts had a gun and wanted money. Although the Jurados gave him all the money they had, about fifteen dollars, Watts demanded more money and warned them if they did not give it to him he would kill Glenda. The Jurados then gave Watts a piggy bank from the study. After looking through the rest of the house, Watts told Simon to get undressed in the bathroom. While Simon was getting undressed, Watts told Glenda to undress also. She disrobed from the waist down. After penetrating Glenda with his finger, Watts attempted to have sexual intercourse with her but was unsuccessful. When her husband saw what was happening, he yelled at Watts and threw a chair at him. Watts was knocked into the hallway, where the two men began to struggle. Glenda ran from the house. She then heard a shot and her husband's scream. Watts ran from the house with a gun in his hand and fled down the street. After attempting to use the telephone, Simon ran out of the house and collapsed on the front lawn. He died shortly thereafter from a gunshot wound to the mouth that severed an artery leading to his brain.

During an argument over money in late February 1988, Watts told his girlfriend, who testified at trial, that he had killed someone for her. Watts explained that he and a "dude was tussling over a chair and then [Watts] shot him."

In September 1988 Glenda Jurado identified Tony Watts as the assailant when she was shown Watts' picture as part of a photopack. A neighbor who had seen the assailant flee also identified Watts. Watts' baseball cap was found inside the Jurados' house, hairs that were microscopically similar to Watts' were found on the cap, and Watts' fingerprints were found on the inside front porch door of the house.

Watts was charged with first-degree murder, armed burglary with an assault, armed robbery, and armed sexual battery. At the close of the State's case, the trial court granted Watts' motion for a judgment of acquittal as to the armed sexual battery count, reducing the charge to sexual battery using physical force. The jury found Watts guilty on all counts and voted seven to five to recommend that Watts receive the death penalty. The trial court followed this recommendation and sentenced Watts to death, finding four aggravating and two mitigating factors. Watts was sentenced to consecutive life terms for the armed burglary and armed robbery convictions and to a thirty-year prison term for the sexual battery conviction, to be served consecutive to the other sentences. The judge also imposed a minimum mandatory sentence of three years for the use of a firearm in connection with these offenses.

Watts raises the following claims in this appeal: (1) the trial court erred in failing to appoint the diagnosis and evaluation team of the Department of Health and Rehabilitative Services (HRS) to examine Watts when the issue of his mental retardation was raised; (2) the court erred in finding Watts competent to stand trial; (3) the court erred in failing to advise Watts of his right to represent himself and in failing to conduct an inquiry pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); (4) the court erred in overruling Watts' objection to the prosecution's closing argument which was designed to elicit sympathy for the murder victim's wife; (5) the court erred in finding this murder especially heinous, atrocious, or cruel and in instructing the jury on this factor; (6) death is not proportionally warranted in this case; and (7) it is cruel and unusual punishment to execute a mentally retarded person convicted of first-degree murder.

COMPETENCY DETERMINATION

Prior to trial, defense counsel filed a motion for the appointment of an expert to assist in the preparation of an insanity defense, pursuant to Florida Rule of Criminal Procedure 3.216(a). In this motion counsel stated that Watts' "school records indicate psychological problems and an I.Q. in the mentally handicapped range. He is almost totally illiterate." The motion was granted and Dr. Ernest Miller, a psychiatrist, was appointed as a confidential expert. Counsel later filed a suggestion of incompetence and request for continuance, pursuant to Florida Rules of Criminal Procedure 3.190(g) and 3.210. In this motion, counsel pointed out that there was evidence of mental retardation and requested that qualified experts be appointed to examine Watts to determine his competency to stand trial. This motion was also granted and Dr. Barnard, a psychiatrist, and Dr. Fennell, a clinical psychologist, were appointed to examine Watts.

Prior to the competency hearing, defense counsel filed a motion requesting that a third mental health professional be appointed to examine Watts to determine his competency to stand trial. Counsel specifically requested that an expert in mental retardation be appointed to evaluate Watts' competency and suggested that Dr. Joyce Carbonell, a clinical psychologist, be appointed. The motion was denied, but Dr. Carbonell was ultimately retained as a defense witness and testified on Watts' behalf during the competency proceedings.

At the hearing on competency, defense counsel and the State stipulated to the qualifications of the three mental health experts. Defense counsel never questioned Dr. Barnard's or Dr. Fennell's qualifications to express an opinion concerning Watts' competency to stand trial. Dr. Barnard testified that his examination revealed that Watts was competent to stand trial and was not retarded but was of borderline intelligence. In Dr. Fennell's opinion, Watts was competent to stand trial, as long as trial proceedings were explained to him in terms that he was capable of understanding and any questions asked of him were simplified and repeated. Dr. Fennell testified that test results revealed that Watts had an I.Q. of 71, which indicates a borderline intelligence. Dr. Carbonell, who was retained by the defense, testified that First, we reject Watts' claim that reversible error occurred because the trial court failed to appoint the HRS diagnosis and evaluation team to evaluate his level of mental retardation and his competency to stand trial, as required under section 916.11(1)(d), Florida Statutes (1987), which provides:

Watts had an I.Q. of 65 and would be considered mildly retarded. In her opinion Watts did not have the present ability to consult with his attorney with a reasonable degree of understanding or to understand the proceedings against him. Finding the testimony of Dr. Barnard and Dr. Fennell more credible than that of Dr. Carbonell, the trial court found Watts competent to stand trial.

If a defendant's suspected mental condition is mental retardation, the court shall appoint the diagnosis and evaluation team of the Department of Health and Rehabilitative Services to examine the defendant and determine whether he meets the definition of "retardation" in s. 393.063 and, if so, whether he is competent to stand trial.

(Emphasis added.)

A defendant has a fundamental right to a constitutionally adequate determination of his competency to stand trial when there is reasonable cause to believe that he is not mentally competent to proceed. See Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Lane v. State, 388 So.2d 1022 (Fla.1980). Although in Florida this determination is ultimately for the trial court, section 916.11(1)(b), Florida Statutes (1987), and Florida Rule of Criminal Procedure 3.210 provide for the appointment of no more than three nor fewer than two experts to examine a defendant and provide "advisory" reports regarding the defendant's competency to proceed. Muhammad v. State, 494 So.2d 969, 973 (Fla.1986), cert. denied, 479 U.S. 1101, 107 S.Ct. 1332, 94 L.Ed.2d 183 (1987).

We agree that where, as here, it is suspected that a defendant is mentally retarded, the clear language of section 916.11(1)(d), Florida Statutes (1987), mandates the appointment of the diagnosis and evaluation team of HRS. However, this subsection merely supplements the provisions for appointment of experts contained in subsection (b) of the statute and Florida Rule of Criminal Procedure 3.210 and is not necessary to ensure a constitutionally adequate determination of a defendant's competency.

Therefore, while the trial court's failure to abide by the requirements of subsection (d) would have been a clear abuse of discretion had defense counsel requested the appointment of the HRS team or otherwise challenged the trial court's failure to comply with this provision, Watts' entitlement under this subsection was waived by counsel's failure to bring the statutory requirement to the trial court's attention or otherwise raise the error below. See Fowler v. State, 255 So.2d 513 (Fla.1971). Further, even if the issue had been preserved for appeal, the failure to appoint the HRS team was harmless because Watts...