Windom v. State

Decision Date27 April 1995
Docket NumberNo. 80830,80830
Citation656 So.2d 432
Parties20 Fla. L. Weekly S200 Curtis WINDOM, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

James B. Gibson, Public Defender and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen. and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.


Curtis Windom appeals his convictions of three counts of first-degree murder and one count of attempted first-degree murder, and his sentences of death for each of the murder convictions with a consecutive term of twenty-two years' imprisonment for the attempted first-degree murder charge. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const.

In her sentencing order, the trial judge set out the details of this tragic event, which occurred in the City of Winter Garden in west Orange County, Florida on February 7, 1992. Before the event was over, defendant, armed with a gun, had murdered three people and seriously wounded a fourth. The pertinent facts taken from the trial record and stated in the trial judge's order are as follows:

Jack Luckett testified that he had talked with the Defendant the morning of the shootings. In their discussion, the Defendant asked Jack if Johnnie Lee had won money at the dog track and Jack said, "Yes, $114." The Defendant said Johnnie Lee owed him $2,000. When the Defendant learned Johnnie had won money at the track, he said to Jack, "My nigger, you're gonna read about me." He further said that he was going to kill Johnnie Lee. That same day at 11:51 a.m. (per the sales slip and the sales clerk) the Defendant purchased a .38 caliber revolver and a box of fifty .38 caliber shells from Abner Yonce at Walmart in Ocoee. Mr. Yonce remembered the sale and recalled there was nothing unusual about the Defendant and that he was "calm as could be."

Within minutes of that purchase, the Defendant pulled up in his car next to where Johnnie Lee was standing talking to two females and Jack Luckett on the sidewalk. All three testified that the Defendant's car was close and the Defendant leaned across the passenger side of the vehicle and shot Johnnie Lee twice in the back. (Johnnie Lee's back was towards the Defendant and there was no evidence he even saw the Defendant.) ... After the victim fell to the ground, the Defendant got out of the car, stood over the victim and shot him twice more from the front at very close range.... The Defendant then ran towards the apartment where Valerie Davis, his girlfriend and mother of one of his children, lived. (The Defendant lived with Valerie Davis off and on.) She was on the phone, and her friend Cassandra Hall had just arrived at the apartment and was present when the Defendant shot Valerie once in the left chest area within seconds of arriving in the apartment and with no provocation....

From the apartment, the Defendant went outside, encountered Kenneth Williams on the street, and shot him in the chest at very close range. Mr. Williams saw the gun but did not think the Defendant would shoot him. Right before he was shot, he turned slightly and deflected the bullet somewhat. Although he was in the hospital for about 30 days and the wound was serious, he did not die. He said the Defendant did not look normal--his eyes were "bugged out like he had clicked." ...

From there, the Defendant ended up behind Brown's Bar where three guys, including the Defendant's brother, were trying to take the weapon from him. By that time, Valerie's mother had learned that her daughter had been shot, so she had left work in her car and was driving down the street. The Defendant saw her stop at the stop sign, went over to the car where he said something to her and then fired at her, hitting her twice, and killing her.

Windom was charged and convicted of three counts of first-degree murder and one count of attempted first-degree murder. The jury unanimously recommended death, and the judge followed the recommendation, sentencing Windom to death for all three counts of first-degree murder. Windom was also sentenced to a consecutive term of twenty-two years' imprisonment for the attempted first-degree murder charge.

In support of each death sentence, the trial judge found two aggravating factors: (1) the defendant had been previously convicted of another capital offense or felony involving the use of threat or violence to the person; 1 and (2) the crime was cold, calculated, and premeditated. 2 The court also found a number of statutory and nonstatutory mitigating factors 3 but determined they were not of sufficient weight to preclude the death penalty.

Windom appeals his convictions and sentences, raising thirteen claims. We find that only the following nine merit discussion: 4 (1) the prosecutor's discriminatory use of peremptory challenges denied Windom his right to an impartial jury; (2) the trial court erred in allowing the State to introduce irrelevant, prejudicial evidence of a nonstatutory aggravating factor; (3) the trial court erred in failing to conduct an adequate hearing concerning the competency of trial counsel; (4) the trial court erred in allowing the introduction of prejudicial photographs of the victims; (5) the trial court erred in denying defendant's attempt to call a witness; (6) the trial court erred in its instruction on cold, calculated, and premeditated; (7) the trial court erred in finding that the crimes were committed in a cold, calculated, and premeditated manner; (8) the trial court erred in finding the prior violent felony aggravating factor; and (9) the death penalty is disproportionate in this case.

First, we address Windom's contention that the State's discriminatory use of peremptory challenges to exclude minorities from the jury denied him an impartial jury. Defendant argues that he is entitled to a new trial based upon Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); State v. Alen, 616 So.2d 452 (Fla.1993); State v. Slappy, 522 So.2d 18 (Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988); and State v. Neil, 457 So.2d 481 (Fla.1984). We conclude that the record does not support defendant's assertion.

For the defendant's trial, the jury was selected after some individual and some collective voir dire. The parties examined juror questionnaires prior to questioning in order to determine which of the venire persons were to be questioned individually. During the questioning, the trial court granted and denied cause challenges from both sides. At the end of voir dire, each side exercised peremptory challenges.

The State exercised the first peremptory challenge which defense counsel questioned as a "race issue." The trial court, in accord with Neil, followed the procedure required pursuant to State v. Johans, 613 So.2d 1319 (Fla.1993), and inquired as to the reason for the challenge. The State expressed a race-neutral reason to which the defendant did not object.

Defendant next exercised a peremptory challenge on a venireman who was African-American. The State questioned this challenge on the basis of Neil, noting that all the murder victims were African-American. Defense counsel then stated a race-neutral reason for the challenge to which the State had no further objection.

The State then exercised a challenge in respect to a prospective juror which initiated a debate between both sides' counsel and the court concerning the ethnicity of the particular juror. When the prosecutor announced his intent to challenge this person the following dialogue ensued:

[DEFENSE COUNSEL]: I'd like to question that choice, too, assuming she is black.

[PROSECUTOR]: I don't believe she is.

THE COURT: It says Hispanic.

[PROSECUTOR]: I think she is actually Indian.

With this uncertainty, the court and counsel agreed to inquire of the person further:

THE COURT: Hi. What is your nationality?

[JUROR]: East Indian.

THE COURT: Okay. That's all we need to know. Thank you. She is definitely not a recognized minority. She's East Indian.

[DEFENSE COUNSEL]: Everybody in Trinidad is black.

[PROSECUTOR]: Not everybody because she is, obviously, not.

[DEFENSE COUNSEL]: She may be Indian.

THE COURT: All right. She's Indian but I'm going to let him strike her if that's what he wants to do.

The defendant relies on this peremptory strike in alleging that it was reversible error for the trial court not to require the State to have and express a race-neutral reason for the challenge.

Consistent with what we have held in Alen and Johans, and from our review of the voir dire record, we conclude, in respect to this prospective juror, that the defendant's expressed objection did not make it necessary for the trial court to require the State to have and express a race-neutral reason for the challenge. We reiterate once again what we stated specifically in Neil: there is an initial presumption that peremptories will be exercised in a nondiscriminatory manner. A party concerned about the other side's use of peremptory challenges must make a timely objection which demonstrates on the record that the challenged persons are members of a distinct racial group and that there is a strong likelihood that they have been challenged solely because of their race. We followed this statement in Johans by requiring a Neil inquiry when an objection is raised that a peremptory challenge is being used in a racially discriminatory manner. However, a timely objection and a demonstration on the record that the challenged person is a member of a distinct racial group have consistently been held to be necessary.

In Johans, the objection was timely and the factual demonstrations made. Johans, 613 So.2d at 1321. Moreover, we pointed out in Alen that because the question of one's membership in a cognizable class is a matter of fact, the trial judge is granted discretion in making this determination when an objection is made to a...

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    • October 1, 1998
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