Whitton v. State, 80536

• Decision Date: 01 December 1994
• Docket Number: No. 80536,80536
• Citation: 649 So.2d 861
• Parties: 19 Fla. L. Weekly S639 Gary Richard WHITTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 861

649 So.2d 861

19 Fla. L. Weekly S639

Gary Richard WHITTON, Appellant, v. STATE of Florida, Appellee.

No. 80536.

Supreme Court of Florida.

Dec. 1, 1994.

Rehearing Denied Feb. 14, 1995.

Nancy A. Daniels, Public Defender and Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.

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

PER CURIAM.

Gary Richard Whitton appeals his convictions and sentences for first-degree murder and robbery, including his sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution, and affirm both the convictions and sentences.

The evidence presented at trial revealed that Whitton and James S. Mauldin met each other in March 1989, while receiving alcohol treatment at a halfway house in Pensacola. After leaving the halfway house, they continued to see each other at occasional Alcoholics Anonymous meetings. On October 6, 1990, Mauldin arrived at Whitton's Pensacola home in a taxicab. Whitton then gave Mauldin a ride to the halfway house where they originally met. On Sunday October 7, an intoxicated Mauldin returned to Whitton's home. He stayed with Whitton that day, as well as Monday, October 8.

On October 8, Whitton drove Mauldin to a bank in Destin so Mauldin could withdraw some money. The two men went to Mauldin's bank in Destin rather than a bank in Pensacola because Mauldin had lost his passbook and he believed he needed it to withdraw money from a bank other than his own. Mauldin's bank was closed when the two men arrived, but they returned to the bank on October 9. Upon their arrival, a teller told Mauldin he could not make a withdrawal without his passbook. Upset by this information, Mauldin closed his account and obtained $1135.88 in cash. Whitton assisted Mauldin in completing the transaction because Maudlin, who was apparently intoxicated, was unable to complete it himself.

Whitton then took Mauldin to a motel in Destin at Mauldin's request. Whitton completed the motel registration forms due to Mauldin's intoxication, but provided the motel clerk with false information about his own vehicle's license plate number. The motel clerk noticed the discrepancy and put Whitton's correct license plate number on the form. Whitton then assisted Mauldin to his room and left the motel sometime before noon.

Whitton originally told investigators that he did not revisit Mauldin that night. He later admitted returning to the motel and stated that he did so to tell Mauldin his mother was looking for him. Whitton claimed Mauldin was dead when he arrived and that he remained in the room for only a few moments. The motel clerk, however, testified that he saw Whitton's car arrive at approximately 10:30 p.m. that night and leave at around 12:30 a.m.

The same motel clerk discovered Mauldin's body the next day. An officer called to the scene testified that Mauldin's pockets had been turned inside out and that no money, other than a few coins, remained in the room. The officer testified that the blood found throughout the room made it appear as though a struggle had taken place. Blood spatter evidence confirmed the officer's conclusion. An expert in bloodstain analysis testified that the initial bloodshed began on the south bed, then continued to the foot of that bed, then to the floor between the beds, and finally ended between the north bed and north wall.

An autopsy revealed that Mauldin sustained numerous injuries during the attack which caused his death. Mauldin's skull was fractured and he suffered stab wounds to his shoulder, cheek, neck, scalp, and back. In addition, Mauldin sustained three fatal stab wounds to the heart. The medical examiner testified that these wounds prevented Mauldin's heart from beating properly and, consequently, caused his death. The medical examiner also testified that Mauldin had wounds to his arms and hands consistent with his attempting to defend himself. Accordingly, the medical examiner concluded that Mauldin was conscious during the attack, although a blood alcohol test indicated Mauldin's blood alcohol level was .34 at the time of death.

The correct license plate number ascertained by the alert motel clerk led the police to Whitton's home. At approximately 1:30 a.m. on October 11, several officers knocked on Whitton's door after observing his car parked outside the house. Whitton invited the officers inside. Although the officers explained that Whitton was not under arrest and that he was not required to answer their questions, Whitton agreed to talk with them. After about twenty minutes, during which Whitton changed from his night clothes, he also agreed to accompany the officers to the police station. At the police station, several officers continued questioning Whitton regarding Mauldin's death until he invoked his right to remain silent.

A subsequent search of Whitton's home revealed a pair of boots stained with blood matching Mauldin's blood type. A search of his car revealed blood stains matching Mauldin's blood type, as well as receipts indicating that Whitton paid several overdue bills on October 10. In addition, a receipt indicating that Whitton obtained a car wash on October 10 at 2:37 a.m. was found in his car. Consequently, Whitton was charged with first-degree murder and robbery.

While incarcerated and awaiting trial, Whitton confessed to another inmate that he went back to the motel the night Mauldin was murdered to get the money Mauldin had withdrawn from the bank, that a fight ensued, and that he stabbed and killed Mauldin. Whitton told the inmate he had to commit the murder in order to prevent Mauldin from testifying against him in any parole violation proceeding that might occur as a result of the robbery. This confession was overheard by a third inmate and both inmates testified at Whitton's murder trial. A jury found Whitton guilty of murder and robbery.

In the penalty-phase proceeding the jury unanimously recommended the death sentence. The trial judge followed the jury's recommendation and sentenced Whitton to death for the murder conviction and to a consecutive nine-year sentence for the robbery conviction. In support of the death penalty the judge found five aggravating factors: (1) Whitton committed the crime while on parole for a 1981 armed robbery conviction; ¹ (2) Whitton was previously convicted of another felony involving the use or threat of violence; ² (3) the crime was committed to avoid arrest; ³ (4) the crime was committed for pecuniary gain; ⁴ and (5) the crime was heinous, atrocious, or cruel. ⁵ The judge also found a number of nonstatutory mitigating factors ⁶ but determined they did not outweigh the aggravating factors.

In this appeal, Whitton raises two issues relating to his convictions ⁷ and five issues relating to his sentence. ⁸ We find that only three of these issues merit full discussion.

First, we address Whitton's claim that the state violated Whitton's privilege against self-incrimination by commenting three separate times on his post-arrest silence. All three comments pertained to Whitton's invocation of his right to remain silent after he admitted he was present at the motel the night Mauldin was murdered. Whitton, however, only objected to the final comment made during the prosecutor's closing argument. The prosecutor stated:

But in the last part of that interview, before the defendant says "I'm not talking to you anymore," he tells him, "I went back over there, I walked in, and I saw my friend dead and I left." Then he doesn't say anything else. He realizes at that point, "Uh-oh."

We agree this statement is fairly susceptible of being interpreted by the jury as a comment on silence and, therefore, conclude that the trial court properly sustained the defense's objection to the comment. See State v. Kinchen, 490 So.2d 21 (Fla.1985). However, we also approve the trial court's denial of defense counsel's subsequent motion for mistrial because our examination of the record indicates that there is no reasonable possibility that the improper comment contributed to Whitton's conviction. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Although Whitton did not object to the first two alleged comments on Whitton's post-arrest silence, he argues that the cumulative impact of all three comments requires reversal. We agree that we must consider all three comments in our harmless error analysis because the harmless error test requires an examination of the entire record. The reviewing court must examine both the permissible evidence on which the jury could have legitimately relied and the impermissible evidence which might have influenced the jury's verdict. DiGuilio, 491 So.2d at 1135.

In applying the harmless error test to this case we find that the record contains a substantial amount of permissible evidence that conclusively proves Whitton's guilt. Whitton, as well as several other witnesses, testified that he was with Mauldin the day of the murder and returned to Mauldin's room later that night. Although Whitton claimed he remained in Mauldin's room for only a few moments after discovering Mauldin's body, the motel clerk testified that he saw Whitton's car outside the room that night for approximately a two-hour period. Whitton himself told several investigating officers that he had not loaned his car to anyone during this period. In addition, two inmates testified that Whitton admitted killing Mauldin. One of the inmates testified that Whitton told him he returned to the motel to rob Mauldin and then "killed the bastard."

There is, likewise, physical evidence upon which a jury could rely in finding Whitton guilty. Police found blood matching Mauldin's blood type in Whitton's car and on Whitton's boots. The search of Whitton's car uncovered receipts indicating that Whitton had paid off several overdue bills following Mauldin's murder. Although Whitton denied using any of...