Wike v. State

• Decision Date: 23 November 1994
• Docket Number: No. 81117,81117
• Citation: 648 So.2d 683
• Parties: 19 Fla. L. Weekly S617 Warfield Raymond WIKE, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 683

648 So.2d 683

19 Fla. L. Weekly S617

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

No. 81117.

Supreme Court of Florida.

Nov. 23, 1994.

Rehearing Denied June 25, 1995.

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

Robert A. Butterworth, Atty. Gen. and Gypsy Bailey, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Warfield Raymond Wike, Jr., appeals his sentence of death for first-degree murder imposed after a remand for a new sentencing proceeding. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const. We hold that the trial judge erroneously denied Wike his vested procedural right to conclude the closing arguments before the jury, and, consequently, we must reverse his sentence and remand this cause for resentencing.

Wike was convicted of first-degree murder, kidnapping, sexual battery, and attempted murder and was sentenced to death for the first-degree murder conviction. ¹ On appeal, we affirmed the convictions but ordered a new sentencing proceeding. On remand, the jury unanimously recommended the death penalty, which the trial judge subsequently imposed. It is this death sentence that is now before the Court.

In this appeal, Wike raises eleven issues, ² the first of which we find to be dispositive. In his first issue, Wike asserts that the trial judge erroneously denied him the right to final closing argument. The facts pertinent to this claim are as follows. After remand by this Court, but before the new sentencing proceeding, Wike filed a motion requesting that he be allowed to give final closing argument, i.e., that his closing argument follow the State's closing argument. In making this request, Wike's counsel relied on Florida Rule of Criminal Procedure 3.250, which governs the presentation of arguments during the guilt phase. At the hearing on Wike's motion, the trial judge asked: "Do the rules specifically address opening and closing with regard to a penalty phase?" (Emphasis added). The State responded, "It does not address that as I recall, Judge. That is 3.250, I believe." Additionally, the State informed the judge that Wike's request did "not comport with the Rules of Criminal Procedure." The trial court denied Wike's motion.

Wike renewed his request for final closing argument near the close of the resentencing proceeding. At that time, the following colloquy took place:

TRIAL JUDGE: [A]gain, it does not seem to be clear law right on point. It appears to be a procedural matter.

WIKE'S COUNSEL: OK, then for the record I'll request that we be allowed rebuttal after the State.

TRIAL JUDGE: I don't know of any--The norm in the sentencing phase is argument. I'm not familiar with rebuttal.... What is the State's position?

STATE: [Rebuttal] is not justified under the cases that presently exist.

TRIAL JUDGE: I'm a little surprised there is not more guidance on this area, but there is not and it appears as though the [prior] ruling of [this] Court has logic to it.

After the jury returned its recommendation and the penalty phase proceeding had concluded, Wike's counsel, in a motion for a mistrial, brought to the attention of the trial judge and the state attorney Florida Rule of Criminal Procedure 3.780(c), which governs the presentation of arguments in penalty phase proceedings. The trial judge denied the motion for mistrial, stating:

Neither the State nor defense counsel cited [rule 3.780(c) ] to the Court at the time the Pretrial Motion was argued or at the Charge Conference when the issue was again raised. This Court finds that the term "will" [within rule 3.780] is not mandatory and allows the Court discretion with regard to the order of argument.

However, even if the Court has no discretion in this case and allowing the State closing argument was error, the issue remains is it harmless error or is it fundamental error which would require a mistrial. In that this is a capital case, the rule differs from Rule 3.250, Florida Rules of Criminal Procedure which provides a Defendant offering no testimony in his own behalf, except his own, shall be entitled to the concluding argument before the jury. (Emphasis added). The Defendant in the instant case did in fact offer testimony in his own behalf (other than his own) and would not have been entitled to closing argument before the jury under Rule 3.250. Additionally, the defense did not bring to the Court's attention anything argued by the State during its argument that the defense believed was necessary to rebut nor did the defense request additional or rebuttal argument subsequent to the State's closing argument. In order to assign denial of the right to a closing argument available as error, the Defendant must have tendered and been refused the right to have his counsel make a closing argument subsequent to a closing argument against him made for the prosecution. (Emphasis added). Hall v. State, 160 So. 511, 512 (Fla.1935).

In a non-capital trial, the right to open and close the argument to the jury is a substantial procedural right, but never has been raised to constitutional status. Preston v. State, 260 So.2d 501, 505 (Fla.1972). The Supreme Court of Florida has held that the right to open and close belongs to the prosecution as the party with the burden of proof. Id. at 505.

This Court has not found any case authority holding that the right to close the argument to the jury in the penalty phase of a capital case rises to the level of a substantial procedural right where the jury returns an advisory verdict even though same must be given great weight by the sentencing Court. In the instant case, both sides had equal opportunity for argument, and altering the order of argument from Florida Rule of Criminal Procedure 3.780(c) does not appear to be fundamental error. Quince v. State, [414 So.2d 185 (Fla.), cert. denied, 459 U.S. 895, 103 S.Ct. 192, 74 L.Ed.2d 155 (1982) ].

In summary, throughout the proceedings, Wike's counsel asserted that Wike had a right to the concluding argument but did not cite rule 3.780; the State erroneously advised the trial judge that no rule of criminal procedure governed this situation; and the trial judge, after finally being advised of the correct rule, found that the rule was discretionary rather than mandatory.

Rule 3.250, which governs a defendant's right to conclude final arguments in the guilt phase of a criminal trial, provides that "a defendant offering no testimony in his or her own behalf, except the defendant's own, shall be entitled to the concluding argument before the jury." Rule 3.780, which governs a defendant's right to conclude final arguments in the penalty phase of a capital case, provides as follows: "Both the state and the defendant will be given an equal opportunity for argument, each being allowed one argument. The state will present argument first." (Emphasis added.) Both rules are clear and unambiguous--in a guilt phase proceeding, a defendant has the right to close in final argument only if the defendant presents no testimony other than his or her own; in a penalty phase proceeding of a death case, a defendant always has the right to close in final argument.

To fully understand the rights this state has historically provided to defendants regarding concluding arguments under either rule, it is necessary to examine the history of these rules. At common law, the generally accepted rule was that the party who had the burden of proof had the right to begin and conclude the argument to the jury. Huston v. Green, 91 Fla. 434, 108 So. 846 (1926). The rule applied to both civil and criminal cases. Faulk v. State, 104 So.2d 519 (Fla.1958); Smith v. State, 155 Fla. 148, 19 So.2d 698 (1944). The rationale behind this common law rule was to provide the party who shouldered the disadvantage of the burden of proof with the advantage of the opening and closing arguments before the jury. Faulk. In 1853, this common law rule was changed in Florida through chapter 539, Laws of Florida (1853), to provide that a defendant who produced no testimony at trial was entitled to the advantage of making the concluding argument before the jury. That law was later codified as section 918.09, Florida Statutes.

As early as 1858, this Court determined that a trial judge had no discretion in following the statutory predecessor of section 918.09 and that the erroneous denial of a defendant's right to concluding argument constituted reversible error. Heffron v. State, 8 Fla. 73 (1858). Throughout the years, Florida courts have never deviated from the holding that the denial of a defendant's right to close under this rule constitutes reversible error. Faulk; Morales v. State, 609 So.2d 765 (Fla. 3d DCA 1992); Graddy v. State, 606 So.2d 1242 (Fla. 2d DCA 1992); Lamar v. State, 583 So.2d 771 (Fla. 4th DCA 1991); Crowley v. State, 558 So.2d 529 (Fla. 4th DCA 1990); Terwilliger v. State, 535 So.2d 346 (Fla. 1st DCA 1988); Gari v. State, 364 So.2d 766 (Fla. 2d DCA 1978); Dampier v. State, 336 So.2d 683 (Fla. 2d DCA 1976); Cagnina v. State, 175 So.2d 577 (Fla. 3d DCA 1965). In fact, this is true even though in 1968 section 918.09 was incorporated as rule 3.250 and in 1970 section 918.09 was repealed. See, e.g., Wilson v. State, 284 So.2d 24 (Fla. 2d DCA 1973) (even though the opening and closing of final argument statute is now a procedural rule, the denial of that 120-year-old right still constitutes reversible error), quashed on other grounds, 294 So.2d 327 (Fla.1974). Further, Justice Thornal made clear in Birge v. State, 92 So.2d 819 (Fla.1957), that erroneous denial of a defendant's right to conclude the arguments is reversible error even when more than sufficient evidence exists to determine that a defendant is guilty. The Court explained in Birge that it is not this Court's privilege to disregard the right to concluding argument "even though we as individuals might feel that [a defendant] is as guilty as...