Way v. State, No. SC78640.

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM.
• Citation: 760 So.2d 903
• Parties: Fred Lewis WAY, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. SC78640.
• Decision Date: 20 April 2000

760 So.2d 903

Fred Lewis WAY, Appellant,
v.
STATE of Florida, Appellee

No. SC78640.

Supreme Court of Florida.

April 20, 2000.

Rehearing Denied June 15, 2000.

760 So.2d 906

Gregory C. Smith, Capital Collateral Counsel—Northern Region, Heidi E. Brewer, Assistant CCRC and David F. Chester, CCRC Staff Attorney—Northern Region, Tallahassee, Florida; and James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Appellant

Robert A. Butterworth, Attorney General, and Candance M. Sabella and Robert A. Krauss, Assistant Attorneys General, Tampa, Florida, for Appellee.

PER CURIAM.

Fred Lewis Way appeals a sentence imposing the death penalty following a resentencing proceeding and the trial court's denial of post-conviction relief following an evidentiary hearing. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

The facts of this case are set forth in our previous opinions. See Way v. Dugger, 568 So.2d 1263 (Fla.1990) (Way II); Way v. State, 496 So.2d 126 (Fla.1986) (Way I). On July 11, 1983, a fire occurred in the garage of the home occupied by the defendant, Fred Lewis Way, and his family. Both his fifteen-year-old daughter, Adrienne Way, and his wife, Carol Way, were found dead in the garage.

The state presented evidence that Way, who was having marital difficulties, argued with his wife in the garage of their Tampa home, ultimately striking her in the head with a hammer. He called Adrienne into the garage and also struck her in the head with a hammer. He then set both mother and daughter, and the garage, on fire.

Way II, 568 So.2d at 1264.

At trial, the medical examiner testified that Carol had suffered twelve traumas to the skull that had been caused by a blunt instrument, such as a hammer. Adrienne had suffered two similar blows to the head, the second of which was severe enough to crack her skull. Expert witnesses for the State testified at trial that the fire was intentionally set and gasoline had been used as the primary accelerant. See id. The cause of death for both victims was blunt trauma and 100% body burns, either of which could have caused their deaths. See Way I, 496 So.2d at 127.

At trial, Way's surviving daughter Tiffany testified that her mother and father had been in the garage together when Way called Adrienne into the garage. Moments later, Tiffany heard Adrienne screaming in the garage. When Tiffany looked out her bedroom window, she saw a fire in the garage. However, her father did not respond when Tiffany asked whether she should call the fire department.¹

760 So.2d 907

Witnesses to the fire also testified that Way did not respond to questions concerning whether anyone was in the burning garage. After hearing screams from inside the garage, Way answered that his daughter was in the garage. A witness also saw a body² engulfed in flames attempting to rise up on all fours as if to crawl out of the burning garage and then finally collapsing. See Way II, 568 So.2d at 1265. The jury, rejecting Way's defense that the mother and daughter were killed while engaged in mutual combat, found Way guilty of second-degree murder in the killing of Carol Way, but guilty of first-degree murder for the killing of Adrienne as well as first-degree arson. In accordance with the jury's seven to five recommendation, the trial court imposed the death penalty for the murder of Adrienne Way. The trial court also imposed a sentence of ninety-nine years' imprisonment for the second-degree murder conviction and a thirty-year sentence for the first-degree arson conviction. This Court affirmed the convictions and sentences on direct appeal. See Way I, 496 So.2d at 129

The trial court denied Way's first motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850,³ which this Court affirmed on appeal. See Way II, 568 So.2d at 1266-67. However, we granted a writ of habeas corpus, vacated the death sentence and remanded for resentencing as required by Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), because the error that occurred when the jury was not instructed that it could consider nonstatutory mitigation was not harmless beyond a reasonable doubt.⁴ See Way II, 568 So.2d at 1266-67.

Prior to the resentencing proceeding, Way filed an emergency 3.850 motion in the trial court alleging that photographs withheld from the defense showed that the fire had been started by an "accidental propane gas explosion" instead of having been intentionally set by Way using gasoline. Way v. State, 630 So.2d 177, 178 (Fla.1993) (Way III). The trial court summarily denied relief on the 3.850 motion and proceeded with the resentencing.

The jury again recommended the imposition of the death penalty by a vote

760 So.2d 908

of seven to five. The trial court imposed the death penalty after finding that the applicable statutory aggravating circumstances⁵ outweighed the statutory mitigating⁶ and nonstatutory mitigating⁷ circumstances. On appeal of the resentencing proceedings and the summary denial of the postconviction motion, we remanded for an evidentiary hearing to determine

whether there was an improper withholding of the photographs and whether, even if there was, it would have affected the outcome of Way's trial. We are unable to conclusively determine from the record that this "new" evidence could not support an alternative theory of the deaths of his wife and daughter and provide a basis on which a jury could find him innocent.

Id. at 178-79. We withheld ruling on the issues raised in Way's direct appeal of the resentencing proceedings. See id. at 179. After holding an evidentiary hearing, the trial court denied relief on the Brady⁸ claim and this appeal follows.

In the present appeal, Way raises three issues on appeal from the denial of postconviction relief⁹ and eight issues remain outstanding from his appeal of the imposition of the death penalty in the resentencing proceedings.¹⁰ We first address the trial court's denial of Way's Brady claim.

BRADY CLAIM

The evidence presented at the evidentiary hearing centered on two photographs that Way asserted had been suppressed by the State in violation of Brady. One photograph showed the condition of the circuit breaker box following the fire. A number of circuit breakers had been tripped and black lines radiated out of the panel. The second photograph of the garage after the

760 So.2d 909

fire showed a weight bench with a broken leg extension bar

The photographs had been taken by Henry Regalado, an arson investigator who had conducted an arson investigation the day following the fire for a private company. The defense claimed that the photograph of the circuit breaker box would have supported a defense that the fire was accidentally started and the photograph of the weight bench would have provided an explanation of Adrienne's head wounds.

In order to support the Brady claim, the defense presented the testimony of Eleanor Posey, an expert in electrical engineering and forensic fire examination, who testified that in her opinion the photograph of the electrical panel when viewed in conjunction with the other evidence at the scene refuted the State's theory that the fire had been intentionally set by Way. Instead, according to Posey, a spark from an open circuit breaker ignited flammable vapors present from chemicals used to refinish furniture. This explosion would have been sufficient to hurl a person to the ground.

As to the significance of the photograph of the weight bench, the defense also presented the expert testimony of Dr. Feegel, a medical pathologist, who testified that in his opinion, one of the wounds on the heads of Adrienne and Carol could have occurred when their heads hit a round object, such as the weight extension bar, during an explosion. However, in Dr. Feegel's opinion, it was unlikely that the remaining wound on Adrienne's head or the remaining eleven wounds on Carol's head were caused by mutual combat between the victims.

In response to the defense testimony, the State presented expert testimony explaining that based on all of the physical evidence at the scene, the fire had been intentionally set and gasoline had been used as an accelerant. The State's experts testified that the burn patterns in the garage were inconsistent with an explosion, but consistent with the fire starting when a pile of combustibles had been soaked with gasoline and set using a trail of gasoline. The most intense burns surrounded the bodies, and little combustible materials were close to the bodies. This indicated to the State's experts that the bodies had been doused with gasoline. After the fire, gasoline had accumulated in pools, and tests conducted demonstrated that the gasoline would not have flowed to these areas had it not been intentionally poured.

The trial court denied the Brady claim, finding that the photographs had been disclosed to Way because the arson investigator referenced them in his report and brought the photographs to his deposition prior to trial. The trial court further found that the photographs were not exculpatory and "the suggested alternative theory of the defense is incredible." Specifically, the trial court found that:

The victim of the capital murder suffered two (2) severe, one probably even lethal, blows to her skull. According to the alternative theory these wounds occurred when she was knocked down against a weight-lifting bench by the force of an explosion which occurred when unknown flammable vapors were ignited by some unknown malfunction of the circuit breaker box. Incredibly, according to the alternative theory, this occurred a moment after the victim had inflicted about a dozen severe wounds, identical to her own and again probably even lethal, to the skull of her mother. Then, according to the alternative theory, the force of the explosion caused gasoline to spill on the victim, her

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