Wike v. State, 86537

• Decision Date: 17 July 1997
• Docket Number: No. 86537,86537
• Citation: 698 So.2d 817
• Parties: 22 Fla. L. Weekly S483 Warfield Raymond WIKE, Jr., Appellant, Cross-Appellee, v. STATE of Florida, Appellee, Cross-Appellant.
• Court: Florida Supreme Court

Page 817

698 So.2d 817

22 Fla. L. Weekly S483

Warfield Raymond WIKE, Jr., Appellant, Cross-Appellee, v. STATE of Florida, Appellee, Cross-Appellant.

No. 86537.

Supreme Court of Florida.

July 17, 1997.

Rehearing Denied Sept. 2, 1997.

Nancy A. Daniels, Public Defender and Chet Kaufman, Assistant Public Defender, Second Judicial Circuit, Tallahassee, for Appellant/Cross-Appellee.

Robert A. Butterworth, Attorney General and Sara D. Baggett, Assistant Attorney General, West Palm Beach, for Appellee/Cross-Appellant.

PER CURIAM.

We have before us an appeal of a trial court's judgment imposing a sentence of death upon Warfield Raymond Wike and a related cross-appeal filed by the State. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons expressed, we affirm the sentence.

Wike was convicted of two counts of kidnapping and one count each of attempted first-degree murder, first-degree murder, and sexual battery. He was sentenced to twenty-two years' imprisonment for the kidnapping and attempted first-degree murder convictions and to life imprisonment without possibility of parole for the sexual battery, each to run concurrently. He was sentenced to death for the first-degree murder charge. All but the death sentence were upheld on appeal in Wike v. State, 596 So.2d 1020 (Fla.1992). In that case, this Court reversed the sentence of death and remanded the case for a new penalty-phase proceeding based on the trial judge's failure to grant a continuance to allow Wike to obtain the presence of witnesses for mitigation. After remand, Wike again received the death penalty, but that sentence was also reversed based on the trial judge's failure to follow the rule regarding order of argument. See Wike v. State, 648 So.2d 683 (Fla.1994). On remand, Wike was once again sentenced to death. It is this third death sentence that is the subject of this appeal.

In this resentencing proceeding, the following evidence was presented to familiarize the jury with the facts of Wike's underlying convictions in this case. Patricia Rivazfar lived in Escambia County, Florida, with her son, Arash, age four, and two daughters, Sayeh, age eight, and Sara, age six. On September 22, 1988, Wike, who was an ex-boyfriend of Patricia's, forcibly entered the Rivazfar home and kidnapped Sayeh and Sara while they were asleep. Patricia, who was asleep in another room, was unaware of the intrusion and kidnapping. Wike drove the girls to a remote location in Santa Rosa County. He bound Sara's hands behind her with tape. He removed Sayeh from the car and sexually battered her on the hood of his car. Subsequently, he took the children deeper into the woods. He told Sayeh to "say a prayer," after which he slit her throat with a knife, stabbed her in the throat one time, and allowed her to fall to the ground. During this time, Sara's hands were still bound behind her and Sayeh could hear her crying and screaming. Wike then slit Sara's throat multiple times, which resulted in her death. Sayeh managed to walk out of the woods and a couple found her.

As a result of information Sayeh provided to law enforcement officials and other physical evidence connecting Wike to the crimes, Wike was arrested, indicted, and convicted of the charges set forth above.

Evidence was also submitted to establish that Wike was convicted of robbery in 1974. The trial judge refused to allow the State to present testimony from the victim's parents, finding such victim impact evidence to be too prejudicial.

In his defense, Wike presented a number of witnesses to testify that he had a difficult childhood and lost his father at a young age; that he did not present a future danger to society in prison; and that he drank and used marijuana and had done so on the night of the murder. Wike himself testified that he was innocent.

At one point in this penalty-phase proceeding, Wike struck one of his attorneys, for which he was held in contempt. The attorney moved to withdraw and moved for a mistrial. The trial judge denied both motions and gave a curative instruction to the jury.

The jury unanimously recommended that Wike be sentenced to death. In following that recommendation, the trial judge found four aggravating circumstances: prior violent felonies (1974 robbery, and contemporaneous attempted murder, kidnapping, and sexual battery of Sayeh); committed to avoid arrest; heinous, atrocious, or cruel (HAC); and cold, calculated, and premeditated (CCP). Additionally, the judge gave little or no weight to the statutory mitigating circumstance of age (Wike was 32 at the time of the murder). He also considered a number of nonstatutory mitigating circumstances. ¹

In this appeal, Wike raises four issues. In the first issue, he contends that the trial judge erroneously refused to allow Wike's counsel to withdraw after Wike struck his counsel in open court. Before the penalty-phase proceeding, Wike filed a pro se motion to be co-counsel and a motion to discharge the public defender. The trial judge denied the motions, finding that Wike was not receiving ineffective assistance of counsel. During this penalty-phase proceeding, Wike was represented by two attorneys, B.B. Boles and Henry Barksdale. On the first day of the penalty-phase proceeding, Wike renewed his complaints, contending that his attorneys would not ask the questions he wanted or conduct the proceedings as he wanted. Again, the judge found no basis to discharge counsel and advised Wike of his right to self-representation, which Wike declined. Two days into the penalty-phase proceeding and just after Wike's witness testified that he posed no future danger to society, Wike struck defense counsel Boles. The trial judge immediately removed the jury and held Wike in contempt.

After he was struck, Boles moved to withdraw, stating that he could not ethically continue to represent someone under these circumstances. He additionally noted that Barksdale could not continue alone because Boles was the attorney who was to handle the evidence in mitigation, which was just beginning. He also moved for a mistrial and moved to individually voir dire the jurors. The judge denied the motions, finding that "it would be a manifest miscarriage of justice to the victims and the citizens of this community to declare a mistrial under the circumstances herein when the circumstances have been created by the defendant himself." The trial judge also again found that counsel was not ineffective. The judge then gave a curative instruction to the jury.

Wike argues that the failure of the trial judge to grant Boles' motion to withdraw deprived him of a fair penalty-phase proceeding. We disagree. During the first day of trial, defense counsel indicated that Wike wanted to address the court and counsel indicated his concern that Wike would "engage in a courtroom demonstration." On inquiry, the court found that Wike was upset because his attorneys were not asking the questions he wanted. After finding that Wike's counsel were not ineffective, the trial judge cautioned Wike against any outburst. Subsequently, defense counsel objected to filming equipment that was brought into the courtroom. The trial judge explained that filming would occur only in the event Wike "acted out." Thereafter, Wike struck his attorney. In holding Wike in contempt, the trial judge noted that Wike had been warned twice not to disrupt the proceedings. After having a chance to think things over, Wike stated that he wanted to discharge his attorneys but did not want to represent himself. The court refused to dismiss counsel.

During Wike's subsequent testimony, he stated that he had attacked Boles because he was under a lot of stress and was lashing out because he "was not being ... represented." He also stated that "I wasn't trying to accomplish anything except to get rid of the public defender's office."

Under these circumstances, we conclude that the trial judge did not abuse his discretion in refusing to dismiss Boles as Wike's counsel. First, the trial judge determined on a number of occasions throughout these proceedings that Wike was being competently represented. Further, Wike specifically stated that he did not want to represent himself. We have repeatedly concluded that there is no constitutional right for a defendant to choose a particular court-appointed counsel. Spaziano v. State, 660 So.2d 1363, 1370 (Fla.1995), cert. denied, --- U.S. ----, 116 S.Ct. 722, 133 L.Ed.2d 674 (1996); Jones v. State, 612 So.2d 1370 (Fla.1992); Hardwick v. State, 521 So.2d 1071 (Fla.1988). Moreover, a defendant's right to conflict-free counsel cannot be used as a device to abuse the dignity of the court or to frustrate orderly proceedings. Cf. Jones v. State, 449 So.2d 253 (Fla.1984)(neither exercise of right to self-representation nor to appointed counsel may be used as device to abuse dignity of court or to frustrate orderly proceedings). As this Court stated in Waterhouse v. State, 596 So.2d 1008 (Fla.1992), when conflict between a defendant and the defendant's counsel is attributable solely to the defendant's own contumacious behavior and not to any competing interest of counsel, a defendant has not been denied the right to counsel due to such conflict of interest. In a somewhat analogous situation, the United States Supreme Court aptly made the following observation:

[O]ur courts, palladiums of liberty as they are, cannot be treated disrespectfully with impunity. Nor can the accused be permitted by his disruptive conduct indefinitely to avoid being tried on the charges brought against him. It would degrade our country and our judicial system to permit our courts to be bullied, insulted, and humiliated and their orderly progress thwarted and obstructed by defendants brought before them charged with crimes. As guardians of the public welfare, our state and federal judicial systems strive to administer equal justice to the rich and the poor, the good and the bad, the native and...