Gary Richard Whitton v. State of Florida ( 2014 )

Supreme Court of Florida
____________
No. SC11-2083
____________
GARY RICHARD WHITTON,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC12-2522
____________
GARY RICHARD WHITTON,
Petitioner,
vs.
MICHAEL D. CREWS, etc.,
Respondent.
[October 9, 2014]
PER CURIAM.
Gary Richard Whitton appeals an order of the circuit court denying his
motion to vacate his conviction of first-degree murder and sentence of death filed
under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ
of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
FACTS
Whitton was convicted for the 1990 murder of James Mauldin. On direct
appeal, this Court summarized the events leading to Mauldin’s murder, and
Whitton’s subsequent arrest and conviction as follows:
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.
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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.
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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; (2) Whitton was previously
convicted of another felony involving the use or threat of violence; (3)
the crime was committed to avoid arrest; (4) the crime was committed
for pecuniary gain; and (5) the crime was heinous, atrocious, or cruel.
The judge also found a number of nonstatutory mitigating factors [:(1)
Whitton suffered a deprived childhood and poor upbringing; (2)
Whitton was abused as a child; (3) Whitton was abused by his two
alcoholic parents; (4) Whitton was a hard worker when employed; (5)
Whitton had shown potential for rehabilitation; (6) Whitton had
performed various humanitarian deeds; (7) Whitton was an alcoholic;
(8) Whitton had an unstable personality consistent with alcoholism
and child abuse; (9) Whitton is a human being and child of God,] but
determined they did not outweigh the aggravating factors.
Whitton v. State, 649 So. 2d 861, 862-64 (Fla. 1994) (footnotes omitted).
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Whitton raised seven issues on appeal.1 This Court did not grant relief on
any of Whitton’s claims and affirmed his convictions and sentences. Id. at 867.
On March 26, 1997, Whitton filed a shell motion for postconviction relief
pursuant to rule 3.850. Whitton subsequently filed three amendments to his
motion; the third and last was filed on November 1, 2004. Whitton raised twenty-
nine claims. The court summarily denied eleven claims and conducted an
evidentiary hearing on the remaining eighteen claims. After the evidentiary
hearings held on October 31 through November 3, 2005, the court denied each of
Whitton’s remaining claims in a 102-page order issued on June 2, 2011.
Whitton appeals the denial of five claims, and has filed a petition for a writ
of habeas corpus, raising two additional claims. Because we find that Whitton has
failed to establish that he is entitled to relief on any of his claims, we affirm the
postconviction court’s denial and deny Whitton’s petition for a writ of habeas
corpus.
1. (1) The trial court erred in denying Whitton’s motion for mistrial after the
prosecutor commented on his post-arrest silence during closing argument; (2) the
trial court erred in denying in part Whitton’s motion to suppress statements he
made to officers because the statements were allegedly the product of an illegal
arrest; (3) the heinous, atrocious, or cruel instruction provided by the court was
unconstitutionally vague; (4) the trial court erred in finding that the murder was
especially heinous, atrocious, or cruel; (5) the trial court erred in failing to give a
limiting instruction with respect to the avoiding arrest circumstance; (6) the trial
court erred in finding that the murder was committed to avoid arrest; and (7) the
death sentence is not proportionate in this case.
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DISCUSSION
Brady and Giglio
In his first issue on appeal, Whitton raises several claims purported to be
violations of Brady v. Maryland, 373 U.S. 83 (1963). Whitton’s claims appear to
be a mixture of Brady, Giglio v. United States, 405 U.S. 150 (1972), and improper
argument claims. The theme of Whitton’s claims is that, overall, the prosecution
was corrupt and sought to convict him by any necessary means. In each of these
claims, Whitton fails to establish each of the prongs necessary to maintain a claim.
Accordingly, we find that the postconviction court properly denied these claims.
Standards of Review
To successfully raise a Brady violation claim, Whitton must show that: (1)
the evidence was favorable to him, either because it was exculpatory or
impeaching; (2) the evidence was suppressed by the State; and (3) that the
suppression resulted in prejudice. Conahan v. State, 118 So. 3d 718, 729 (Fla.
2013) (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Johnson v. State,
921 So. 2d 490, 507 (Fla. 2005); Rogers v. State, 782 So. 2d 373, 378 (Fla. 2001)).
“To establish the materiality element of Brady, the defendant must demonstrate a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” Conahan, 118 So. 3d at 730
(quoting Guzman v. State, 868 So. 2d 498, 506 (Fla. 2003)) (internal quotation
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marks omitted). The review of a postconviction court’s denial of this claim is
under a mixed standard where this Court defers to the lower court’s factual
findings that are supported by competent, substantial evidence and reviews the
application of law de novo. Id. at 730 (quoting Sochor v. State, 883 So. 2d 766,
785 (Fla. 2004)).
Likewise, there are three elements to a successful Giglio claim, Whitton
must demonstrate that (1) the testimony was false; (2) the prosecutor knew it was
false; and (3) the testimony was material. See Conahan, 118 So. 3d at 728 (citing
Guzman, 868 So. 2d at 505). If Whitton successfully demonstrates the first two
elements, “the State bears the burden of proving that the testimony was not
material by showing that there is no reasonable possibility that it could have
affected the verdict because it was harmless beyond a reasonable doubt.” Id. at
728-29 (citing Johnson v. State, 44 So. 3d 51, 64-65 (Fla. 2010); Guzman, 868 So.
2d at 506-07). And, the claim carries the same mixed standard of review. Id. at
729 (citing Suggs v. State, 923 So. 2d 419, 426 (Fla. 2005)).
Kenneth McCollough
Whitton’s claims regarding McCollough are that: (1) the State coerced him
into providing false testimony at Whitton’s trial, and (2) the State suppressed
knowledge of McCollough’s crimes and relationship with the prosecutor’s mother,
Inez Adkinson. Whitton fails to establish that McCollough presented false
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testimony at his trial or that the State was aware that any testimony was false.
Second, the record refutes Whitton’s assertion that the State suppressed knowledge
of McCollough’s relationship with Mrs. Adkinson because trial counsel impeached
McCollough on the basis of this knowledge.
Whitton’s Giglio claim is that the State knowingly presented McCollough’s
false testimony at trial. McCollough testified at trial that Whitton had confessed to
him that he killed Maudlin. Because McCollough’s testimony concerned
Whitton’s confession, this evidence is clearly material. See Shellito v. State, 121
So. 3d 445, 460 (Fla. 2013) (“False evidence is material ‘if there is any reasonable
likelihood that the false testimony could have affected the judgment of the jury.’ ”
(quoting Guzman, 868 So. 2d at 506)). However, Whitton has not demonstrated
with certainty that the testimony McCollough provided was false, nor that the State
knew it to be false.
At the evidentiary hearing, witnesses testified generally about McCollough’s
reputation as a known snitch and liar. However, no witness provided admissible
evidence that McCollough lied specifically about Whitton’s confession. Billy Key
testified that McCollough intended to recant his trial testimony. George Broxon
testified that he knew McCollough had committed a sexually deviant crime that he
wanted to cover up. Broxon did not testify that he had specific knowledge that
McCollough had lied at Whitton’s trial in order to secure a deal with the
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prosecution. Whitton also introduced the testimony of Sheila Lowe (formerly
McCollough), stating that McCollough was a liar and that she would not believe
anything he said. She did not testify specifically about Whitton’s case or that she
had any specific knowledge that McCollough had lied during his testimony at
Whitton’s trial. Whitton also produced a transcript of Lowe’s police interview
describing the nature of McCollough’s crimes. Additionally, McCollough never
executed an affidavit prior to his death. It seems that the only evidence that
McCollough may have wanted to recant his trial testimony was hearsay evidence
presented by a third party. Accordingly, the postconviction court’s ruling that
Whitton failed to demonstrate that a Giglio violation occurred is supported by
competent, substantial evidence.
Next, Whitton alleges that the State suppressed knowledge of McCollough’s
relationship with the prosecutor’s mother in violation of Brady. This claim is
procedurally barred and refuted by the record. Whitton failed to raise this claim as
a Brady violation in his motion for postconviction relief and, therefore, the
postconviction court did not address it. Accordingly, Whitton is procedurally
barred from raising this claim here.
Jake Ozio
Whitton’s claim regarding Ozio is similar to his McCollough claim.
Whitton alleges that Ozio recanted his trial testimony that Whitton confessed to
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him in prison. However, Whitton failed to present any evidence in support of his
claim. Accordingly, the postconviction court properly denied this claim.
First, Whitton has failed to demonstrate that the evidence was false. Ozio
refused to testify and Whitton did not seek to have Ozio’s affidavit submitted into
evidence. Additionally, this Court has stated that recantations are highly
unreliable. See Spann v. State, 91 So. 3d 812, 816 (Fla. 2012) (stating that because
recanting testimony is so unreliable, a new trial will be granted only when it
appears that the witness’s testimony changes to such an extent as to render a
probable different verdict) (citing Armstrong v. State, 642 So. 2d 730 (Fla. 1994)).
The only testimony presented at the evidentiary hearing to support this claim was
from Kevin Wallace, Ozio’s co-defendant, who never stated that Ozio lied at trial.
Wallace testified that Ozio told him that Ozio was the only reason they had gotten
out of jail. Furthermore, even if Ozio’s trial testimony was false, Whitton has not
demonstrated that the State was aware that Ozio intended to present false
testimony. Accordingly, the lower court properly denied this claim.
Shirley Ziegler
Whitton alleges that the prosecutor and sheriff’s office threatened Ziegler
and that this deprived him of a fair trial. This is neither a Brady nor Giglio claim
because Whitton does not allege that the State either presented false testimony or
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suppressed evidence, but rather alleges that the State attempted to suppress
evidence or coerce Ziegler into testifying falsely about her laboratory results.
Even if we were to address this claim on the merits, the record demonstrates
that defense counsel was aware of the alleged threats during trial. Further, Ziegler
testified at the evidentiary hearing that she testified truthfully and did not withhold
any information. Accordingly, Whitton’s claim is refuted by the record and
without merit.
DNA Samples
Whitton additionally claims that the blood that Ziegler tested was from a
different location than that tested by the State’s expert, Lonnie Ginsberg. During
his postconviction proceedings, it appears that Whitton argued the opposite—that
the State attempted to discredit Ziegler’s testimony by stating that she tested a
different location than Ginsberg. Because Whitton’s claim on appeal is different
from his claim below, it is procedurally barred.
The Other DNA Lab
Whitton also alleges that the State suppressed its attempt to secure additional
DNA testing and an audio-taped conversation between Lt. Mann and Brian
Wraxall at the Serological Research Institute. The postconviction court listened to
the audiotape and determined that there was no exculpatory evidence contained on
it. On the tape, Lt. Mann opines that Ziegler probably performed part of the testing
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process incorrectly, which altered the results. Thereafter, the postconviction court
found that Whitton’s claim was refuted by the record and properly denied this
claim.
Cellmark
Whitton alleges that the State suppressed the Cellmark report stating that the
test results were inconclusive. Alternatively, Whitton argues that the State
presented false testimony stating that the Cellmark report concluded that there was
insufficient material to test. Whitton has failed to establish either a Brady or
Giglio violation because he presented no evidence in support of this claim.
First, Whitton has not demonstrated that this evidence would be exculpatory.
Zeigler testified at trial that the blood sample in question did not match that of
Whitton or the victim. Further, Whitton admitted that the victim’s blood was on
his boots because, according to Whitton’s version of events, he walked through the
victim’s blood in his hotel room after he had been murdered. Whitton’s admission
makes it impossible for him to demonstrate prejudice. Likewise, Whitton has not
established that any false evidence was presented at trial. Accordingly, the
postconviction court properly denied this claim.
Car Wash Ticket
Whitton next alleges that the State presented false testimony regarding a car
wash ticket found in Whitton’s vehicle. Whitton has not established that the
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evidence was false, that the State was aware that it was false, or that he was
prejudiced.
The car wash ticket was purchased at 2:37 a.m. at a Conoco gas station on
October 10, 1990. Such tickets were given when anyone purchased at least eight
gallons of gasoline at that particular service station. A person who purchased
regular grade gasoline would get one car wash, but a person who purchased mid-
or super-grade gasoline would receive a double car wash. The testimony at trial
established that Whitton’s ticket was a double wash ticket. Accordingly, Whitton’s
argument that the ticket’s use by Lt. Mann proves that Whitton could not have used
the ticket is incorrect. Furthermore, the ticket was not used to demonstrate that
Whitton had washed his car to remove evidence. The ticket was presented at trial
to establish Whitton’s whereabouts during the time of the murder because Whitton
alleged that he was at home when Maudlin was murdered. The car wash ticket
demonstrates that Whitton was not at home and that he was in the vicinity of the
victim’s hotel.
Whitton has not established that the State presented false testimony. At the
evidentiary hearing, Whitton presented a report written by Lt. Mann who
concluded that Whitton did not use the car wash. However, in light of the
testimony that Whitton’s receipt was valid for a double wash, this evidence is
insufficient to establish that the State’s argument at trial was improper. Further,
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because it was not used to demonstrate that Whitton attempted to wash blood off of
his car, Whitton cannot demonstrate that the State knew the evidence to be false.
Finally, Whitton cannot demonstrate prejudice.
Maureen Fitzgerald
Whitton appears to raise another improper argument claim under the guise of
Brady and Giglio. Whitton does not allege that Fitzgerald lied at trial, but that the
State improperly argued that Whitton lied to Fitzgerald about Maudlin’s
whereabouts. To the extent that this represents an improper argument claim, it is
procedurally barred because it should have been raised on direct appeal. To the
extent that this is a Brady or Giglio argument, the postconviction court properly
denied this claim.
Fitzgerald testified at trial that Whitton called her on October 8 or 9, 1990,
and told her that Mauldin was staying at a hotel in Destin. She testified that she
was uncertain of the name, but that she had likely written it down and thought the
name might be “Sun Den.” Whitton testified that he did not pay attention to the
name of the hotel and was not certain what name he had given to Fitzgerald. She
was not certain of the name of the hotel and gave several different names. During
closing arguments, the State argued that Whitton had misrepresented the hotel’s
name to Fitzgerald and gave her a different name than the “Sun and Sand” where
Mauldin was actually staying.
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Whitton cannot raise an improper argument claim as proper grounds for
postconviction relief. Because this claim should have been raised on direct appeal,
it is procedurally barred. See Jennings v. State, 123 So. 3d 1101, 1102 (Fla. 2013)
(citing Spencer v. State, 842 So. 2d 52, 60 (Fla. 2003)).
To the extent that Whitton is alleging a violation of Giglio, Whitton does not
argue and cannot demonstrate that the evidence presented was false, nor that the
State knew it to be false. Finally, because Whitton also testified that he was
uncertain of the name of the hotel, he cannot establish prejudice. Accordingly, the
postconviction court properly denied this claim.
The “Corrupt” Prosecution
Here, Whitton argues that the overall corruptness of the prosecution in his
trial warrants a reversal. Treating this claim as a claim of cumulative error,
Whitton has failed to demonstrate that he is entitled to relief. See Merck v. State,
124 So. 3d 785, 802 (Fla. 2013) (“ ‘[W]here individual claims of error alleged are
either procedurally barred or without merit, the claim of cumulative error must
fail.’ ”) (quoting Griffin v. State, 866 So. 2d 1, 22 (Fla. 2003)).
Ineffective Assistance of Trial Counsel
In his second claim, Whitton alleges multiple instances of ineffective
assistance of trial counsel. In addition to reasserting the claims above as
ineffective assistance of counsel, Whitton raises novel claims that involve his
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assertion that trial counsel failed in multiple respects to establish an alternative
theory of the crime by: (1) failing to call an expert to testify that a fingerprint could
not have been deposited on the inside of a sandwich bag during manufacturing, (2)
failing to call a forensic pathologist to dispute the length of time it took the victim
to die, (3) failing to establish a different time of death, (4) failing to establish that
the State’s theory of motive was not supported, (5) failing to argue that the crime
scene was not properly processed, (6) failing to argue that the victim was “looking
to get rolled,” and (7) failing to impeach John Maleszewski’s testimony. Because
Whitton has failed to establish deficiency or prejudice for each of these sub claims,
his claim of ineffective assistance of counsel in the guilt phase fails.
Standard of Review
In accordance with Strickland v. Washington, 466 U.S. 668 (1984), this
Court employs the following standard of review:
First, the claimant must identify particular acts or omissions of the
lawyer that are shown to be outside the broad range of reasonably
competent performance under prevailing professional standards.
Second, the clear, substantial deficiency shown must further be
demonstrated to have so affected the fairness and reliability of the
proceeding that confidence in the outcome is undermined.
Long v. State, 118 So. 3d 798, 805 (Fla. 2013) (quoting Bolin v. State, 41 So. 3d
151, 155 (Fla. 2010)). Additionally,
There is a strong presumption that trial counsel’s performance was not
deficient. See Strickland, 466 U.S. at 690. “A fair assessment of
attorney performance requires that every effort be made to eliminate
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the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.” Id. at 689. The defendant carries
the burden to “overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial
strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101
(1955)). “Judicial scrutiny of counsel’s performance must be highly
deferential.” Id. “[S]trategic decisions do not constitute ineffective
assistance of counsel if alternative courses have been considered and
rejected and counsel’s decision was reasonable under the norms of
professional conduct.” Occhicone v. State, 768 So. 2d 1037, 1048
(Fla. 2000). Furthermore, where this Court previously has rejected a
substantive claim on the merits, counsel cannot be deemed ineffective
for failing to make a meritless argument. Melendez v. State, 612 So.
2d 1366, 1369 (Fla. 1992).
In demonstrating prejudice, the defendant must show a
reasonable probability that “but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.
Long, 118 So. 2d at 805-06 (parallel citations omitted) (quoting Johnston v. State,
63 So. 3d 730, 737 (Fla. 2011)).
Because both prongs of the Strickland test present mixed questions of
law and fact, this Court employs a mixed standard of review,
deferring to the circuit court’s factual findings that are supported by
competent, substantial evidence, but reviewing the circuit court’s legal
conclusions de novo.
Shellito, 121 So. 3d at 451 (citing Mungin v. State, 79 So. 3d 726, 737 (Fla. 2011);
Sochor, 883 So. 2d at 771–72).
Merits
In this claim, Whitton raises several instances where he argues that trial
counsel was ineffective. For each of the subclaims, Whitton has failed to establish
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both prongs of the Strickland test. Accordingly, the postconviction court properly
denied his claims.
Car Wash Ticket
Whitton first alleges that counsel was deficient for failing to introduce Lt.
Mann’s report at trial, which contained Lt. Mann’s opinion that Whitton did not
use the car wash. Because Lt. Mann’s report would have constituted hearsay
evidence, and Whitton did not call Lt. Mann to testify at the evidentiary hearing,
Whitton cannot establish that counsel was deficient. Additionally, as discussed
above, the jury heard testimony that Whitton’s ticket was a “double car wash”
ticket, meaning that Lt. Mann’s conclusion that Whitton did not use the ticket was
based on an erroneous assumption. Accordingly, even if counsel had submitted the
report into evidence, Whitton cannot establish that it would have affected the
outcome of his trial. Therefore, the postconviction court properly denied relief on
this claim.
Fingerprint on the Sandwich Bag
Whitton argues that counsel was deficient for failing to call an expert
witness to testify that a fingerprint could not have been deposited inside the
sandwich bag during the manufacturing process. The postconviction court
properly denied this claim because Whitton cannot establish prejudice or
deficiency.
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At trial Florida Department of Law Enforcement agent Tom Simmons
testified that fingerprints not matching the victim or defendant were found on
several items in the room. Simmons further testified that the print on the sandwich
bag could have been placed there by the person who opened the bag. Lastly,
during closing arguments, defense counsel argued that the prints created reasonable
doubt. Accordingly, counsel was not deficient for failing to call an expert witness
to testify that the prints could not have resulted from the manufacturing process
and the postconviction court properly denied this claim.
Failure to Question Zeigler
Whitton alleges that counsel was deficient for failing to question Zeigler
about the threats she received in front of the jury. Whitton argues that this would
have been compelling evidence for the jury to consider. However, Whitton cannot
establish that counsel was deficient nor can he establish that he was prejudiced
because Zeigler did not testify untruthfully at trial. Zeigler stated that she testified
truthfully and her testimony was favorable to Whitton. Counsel moved for
dismissal based on the threats Zeigler received, but the court denied the motion.
Counsel then moved for a new trial which was also denied. However, counsel
does not appear to have followed up. Counsel addressed the issue to the extent
available at trial. Accordingly, Whitton cannot establish that counsel was deficient
or that he was prejudiced, and the postconviction court properly denied his claim.
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Cellmark and Additional DNA Testing
Whitton alleges that trial counsel were deficient for failing to produce
evidence that the State attempted to obtain DNA testing at another lab. Whitton’s
claim here contravenes his claim above that the State suppressed the evidence of
such attempt. Whitton cannot establish that counsel was deficient. The FDLE
results were favorable to the defense and it was sound trial strategy not to call
attention to the State’s attempt to obtain additional testing that might have caused
the jury to doubt the credibility of the results. Further, Whitton cannot establish
prejudice because the results were favorable to him and it is not likely that the
outcome of the trial would have been different. Accordingly, the postconviction
court properly denied this claim.
Forensic Pathologist
Whitton alleges that trial counsel were ineffective for failing to present
evidence to rebut the coroner’s determination that Mauldin struggled for thirty
minutes before he died from his injuries. Whitton further alleges that counsel were
ineffective for failing to present evidence that there were likely two weapons used
and two people involved in Mauldin’s murder. Whitton presented the evidence of
Dr. Leroy Riddick at the evidentiary hearing. Dr. Riddick disagreed with the trial
testimony of Dr. Edmund Kielman.
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Whitton cannot establish prejudice. Although Dr. Riddick’s testimony
differed from that of Dr. Kielman, there was nothing presented at the evidentiary
hearing that affected Whitton’s guilt. It is therefore not likely that Whitton would
have been found not guilty if counsel had presented Dr. Riddick’s testimony at
trial. Further, Dr. Riddick’s testimony would not have negated the trial court’s
finding of the HAC aggravator. Therefore, it is also not likely that Whitton would
have received a lesser sentence. Accordingly, the postconviction court properly
denied relief on this claim.
Time of Death
Whitton alleges that counsel were deficient for failing to more extensively
cross-examine Dr. Kielman regarding Mauldin’s time of death. The only evidence
presented at the evidentiary hearing to support this claim was Dr. Riddick’s
testimony that the struggle was likely approximately five minutes rather than the
thirty minutes Dr. Kielman opined elapsed. Dr. Riddick opined that the time of
death was between 5:00 p.m. and 11:00 p.m. on October 9. Dr. Kielman’s trial
testimony provided that the time of death could have been from 11:00 a.m. on
October 9 to 11:00 a.m. on October 10, 1990. Accordingly, Dr. Riddick’s
testimony did not contradict Dr. Kielman’s. Whitton cannot establish that he was
prejudiced, and the postconviction court properly denied this claim.
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Motive
Whitton alleges that trial counsel was deficient for failing to present the
testimony of Debra Sims at trial to rebut the State’s theory of Whitton’s motive for
killing Mauldin. Whitton alleges that Sims would have testified that she gave him
money to pay his bills and that he was not affected by losing his job because he
had another job lined up. As it relates to the testimony that Whitton had another
job, such testimony would have been hearsay. Counsel cannot be deemed deficient
for failing to submit inadmissible evidence at trial. Further, Whitton cannot
establish prejudice. Sims’ testimony that she gave him $200 would not likely have
changed the outcome of the trial. At trial, evidence was presented that Whitton’s
past due bills were paid on the day after the murder. It is not likely that the jury
would have reached a different verdict if it had heard Sims’ testimony.
Accordingly, the postconviction court properly denied this claim.
Blood Evidence Testimony
Whitton alleges that trial counsel were ineffective for failing to argue that
the blood evidence found in his car was consistent with his story that he walked
through Mauldin’s blood when he found Mauldin’s body. Whitton’s claim is
disputed by the record. Counsel argued during closing that only three drops of
blood were found in Whitton’s car and that the person who committed the murder
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would have been covered in blood. Whitton has failed to demonstrate that this was
deficient. Accordingly, the postconviction court properly denied this claim.
Crime Scene
Whitton alleges that counsel were ineffective for failing to present evidence
that the crime scene was not properly processed. By Whitton’s own allegation,
counsel were not aware that any evidence was returned to the victim’s family
without being tested. Counsel cannot be deficient for failing to introduce evidence
that was unknown at the time of trial. Further, Whitton failed to present evidence
to support this claim. See Dennis v. State, 109 So. 3d 680, 694-95 (Fla. 2012)
(finding that defendant’s failure to allege which experts should have been hired,
what these experts would have testified, and how the failure prejudiced the
defendant, was sufficient to support denial of the defendant’s postconviction
claim.). Accordingly, the postconviction court properly denied this claim.
Alternate Theory of Crime
Whitton alleges that counsel were deficient for failing to present testimony
that Mauldin was flashing his money, had previously been “rolled” by a prostitute,
and was seeking the services of a prostitute on the night of his murder. The
evidence presented at the evidentiary hearing does not support Whitton’s claim.
Whitton argues that Maudlin could have been “rolled” by a prostitute; however, at
the evidentiary hearing, the cab driver testified that he did not. Whitton, therefore,
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cannot establish that he was prejudiced by counsel’s failure to present evidence to
support this theory at trial. Whitton did not produce any credible evidence at the
evidentiary hearing that someone else murdered Mauldin. Accordingly, the
postconviction court properly denied this claim.
John Maleszewski
Whitton argues that counsel were ineffective for failing to impeach hotel
clerk Maleszewski’s inconsistent testimony. Whitton’s argument here is refuted by
the record. The record demonstrates that trial counsel impeached Maleszewski
extensively. Accordingly, Whitton has not established that counsel were deficient,
and the postconviction court properly denied this claim.
Investigation and Impeachment of Snitches
Whitton alleges that trial counsel were ineffective for failing to interview jail
inmates to find witnesses to refute Ozio’s and McCollough’s testimony. Whitton
failed to present any evidence that would have been admissible at trial. Further,
the record demonstrates that both McCollough and Ozio were impeached
extensively at trial. Whitton failed to demonstrate that counsel were deficient.
Accordingly, the postconviction court properly denied this claim.
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Juror Communication
Juror Notes
Whitton alleges that the trial judge and bailiff communicated with the jury
outside the presence of the defendant and counsel in violation of Florida Rule of
Criminal Procedure 3.410.2 Whitton’s allegation is based on five notes from the
jury of which he says he was unaware until recently. Whitton’s claim is refuted by
the record and thus without merit. Additionally, two of the notes do not comprise
communication within the scope of rule 3.410, and therefore do not constitute
error.3 Whitton’s claim fails because these communications do not fall within the
scope of rule 3.410. See Mendoza v. State, 700 So. 2d 670, 674 (Fla. 1997).
2. Rule 3.410 provides:
After the jurors have retired to consider their verdict, if they
request additional instructions or to have any testimony read or played
back to them they may be conducted into the courtroom by the officer
who has them in charge and the court may give them the additional
instructions or may order the testimony read or played back to them.
The instructions shall be given and the testimony presented only after
notice to the prosecuting attorney and to counsel for the defendant.
All testimony read or played back must be done in open court in the
presence of all parties. In its discretion, the court may respond in
writing to the inquiry without having the jury brought before the
court, provided the parties have received the opportunity to place
objections on the record and both the inquiry and response are made
part of the record.
Fla. R. Crim. P. Rule 3.410 (last amended November 8, 2012).
3. The first note in the record states, “Is it to our understanding that a
lady in the audience has a tape recorder recording this? We the jury object. It
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gives us an uneasy feeling.” In the trial record, this note appears to have been
presented at the beginning of the defense’s portion of the penalty phase, right
before counsel Tongue began questioning Dr. Larson. The trial judge responded
in open court, stating, “Let me make a general announcement before you call your
first witness, and that would be simply to advise the jury that I have dealt with the
situation that you brought to my attention. And I will, for the record, just file this
note with the clerk.”
Whitton’s claim regarding this note fails for several reasons. First, as
demonstrated by the record, this communication did not fall under the scope of rule
3.140 because it was not a request from the jury for additional instruction during
deliberations. Second, the note was addressed in open court with counsel for the
defense, the State, the defendant, and the jury present. Accordingly, Whitton is not
entitled to relief.
The fifth note in the record states, “I understand you may have a question. If
so, please write it down and Tim will hand it to me.” L. Melvin, Judge. On the
same page, the jury appears to have written its response, “Mrs. Keyser’s feet
cannot touch floor in jury box which is causing feet to swell—could I get a box to
prop up feet.” This exchange was captured in the trial record. The trial judge and
counsel discussed the procedure for notes at length:
The Court: I’ve just gotten a note that reads: “Some of the
jurors want to ask a question. May they write it down?” The note
was handed to me by my bailiff. I will—If they’re going to ask a
question, I want it written down. I don’t want them to simply
verbalize it in the courtroom. Logistically, I think I need to bring
them in and tell them that if they have a question they need to write it
down and hand it to the bailiff.
Mr. Bishop: Judge, for the record, we would just allow Mr.
Crenshaw to deliver that message. I mean, we are all here in the
courtroom. I think, that for purposes of the record, we can lay out that
the jury room door is located in front of the Court, that we would be
able to observe Mr. Crenshaw enter the room, he can deliver the pad,
come back, pick the message up from them, and we can just find out
what it is at that time. We would have no objection to, the defense,
handling it that way.
The Court: All right. Does the State have any objection?
Mr. Adkinson: (Indicating in the negative)
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This Court has held that, where . . . there are communications
between the judge and the juror outside the express notice
requirements of rule 3.410, Florida Rules of Criminal Procedure, a
harmless error analysis applies. See Williams v. State, 488 So. 2d 62,
64 (Fla. 1986). Indeed, the United States Supreme Court has held
that, even where such communications are not recorded . . . and are
not subsequently disclosed to counsel . . . they are still subject to a
harmless error analysis. See Rushen v. Spain, 464 U.S. 114 (1983).
Lebron v. State, 799 So. 2d 997, 1015 (Fla. 2001).
The Court: I will then write a note for the bailiff to hand into
the jury room and wait outside for them to write a response back.
Mr. Bishop: Do you want to go forward with the testimony, or
take a break at this point?
The Court: Let me see what they say. My note to the jury
reads: “I understand you may have a question. If so, please write it
down and Tim will hand it to me.”
[an apparent break while they await the response]
The Court: What makes makes (sic) this funny is an inside
joke. I’m sitting in the burgundy chair now instead of the big one
because my feet don’t touch the floor in the big brown one. This note
says, “Mrs. Keyser’s feet cannot touch the floor in the jury box, which
is causing her feet to swell. Could I get a box to prop up my feet?”
And, so we do need to get her something to prop her feet up on.
This exchange happened during the State’s case-in-chief prior to the direct
examination of Dr. Kielman. Accordingly, the communication does not fall within
the scope of rule 3.140. Therefore, the note is subject to harmless error analysis.
See Lebron v. State, 799 So. 2d 997, 1015 (Fla. 2001). As indicated by the record,
the communication happened in open court and counsel did not object. Indeed,
defense counsel Bishop testified at the evidentiary hearing that he remembered the
note about the juror’s feet not being able to reach the floor. Additionally, this
portion of the record appears to demonstrate that the process for juror notes was
agreed upon by counsel for the defense, counsel for the State, and the trial judge.
Whitton cannot demonstrate that any error occurred or that the error was
prejudicial.
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While the remaining notes4 appear to fall within the scope of rule 3.410, we
agree with the postconviction court that these claims are refuted by the record.
Whitton’s argument that he was unaware of the notes is refuted by counsel’s
testimony that he remembered the content of at least two of the notes.
We have stated that:
Violations of rule 3.410 are per se reversible because communication
between the judge and the jury, without notice to and outside the
presence of the prosecutor, defense counsel, and the defendant, is too
possibly prejudicial to be tolerated. Bradley v. State, 513 So. 2d 112
(Fla. 1987); Williams v. State, 488 So. 2d 62 (Fla. 1986); Curtis v.
State, 480 So. 2d 1277 (Fla. 1985); Ivory v. State, 351 So. 2d 26 (Fla.
1977).
Brown v. State, 538 So. 2d 833, 834 (Fla. 1989). However, as we stated in
Thomas v. State, 730 So. 2d 667, 668 (Fla. 1998), “The per se reversible error rule
announced in Ivory is prophylactic in nature and must be invoked by
contemporaneous objection at trial. Where counsel communicates to the trial
judge his acceptance of the procedure employed, the issue will be considered
waived.” Id. at 668 (footnotes and emphasis omitted); see also, Lebron, 799 So. 2d
4. The second note in the record states, “List of her (Judge Melvin’s)
instruction (sic) to the jury.”
The third note in the record states, “What is the soonest possible time he
could get out of prison? Gain time? Model prisoner? etc. Or is 25 yrs the soonest
he could get out?”
The fourth note in the record appears to be Judge Melvin’s response to the
note above. It states, “With regard to your question, please refer to the jury
instructions. L. Melvin, Judge.”
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at 1017 n.2; Mendoza, 700 So. 2d at 674. Here, Whitton’s counsel remembered
several of the notes, including the one regarding Whitton’s sentence. Accordingly,
on the entire record before us, it appears that counsel could have objected
contemporaneously. See Thomas, 730 So. 2d at 668. We note, however, the
importance of ensuring a complete record during trial and admonish trial judges to
remember:
Any communication with the jury outside the presence of the
prosecutor, the defendant, and defendant’s counsel is so fraught with
potential prejudice that it cannot be considered harmless. . . .
. . . it is prejudicial error for a trial judge to respond to a request from
the jury without the prosecuting attorney, the defendant, and
defendant’s counsel being present and having the opportunity to
participate in the discussion of the action to be taken on the jury’s
request.
Ivory, 351 So. 2d at 28.
Juror Interviews
The second part of Whitton’s juror communication claim is that the
postconviction court erred by denying him an opportunity to interview the jury.
This issue is reviewed for an abuse of discretion. Marshall v. State, 976 So. 2d
1071, 1076 (Fla. 2007) (citing Boyd v. State, 910 So. 2d 167, 178 (Fla. 2005)).
This Court has stated:
“Juror interviews are not permissible unless the moving party has
made sworn allegations that, if true, would require the court to order a
new trial because the alleged error was so fundamental and prejudicial
as to vitiate the entire proceedings.” Johnson v. State, 804 So. 2d
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1218, 1224 (Fla. 2001) (citing Baptist Hosp. of Miami, Inc. v. Maler,
579 So. 2d 97, 100 (Fla. 1991)).
Power v. State, 886 So. 2d 952, 957 (Fla. 2004). Because there was no
fundamental or prejudicial error, the postconviction court properly denied juror
interviews.
Investigation of Mitigation
In his fourth issue on appeal, Whitton alleges that trial counsel failed to
properly investigate mitigation. The trial court found in mitigation that Whitton
suffered a deprived childhood and poor upbringing, that he was abused as a child,
specifically that he was abused by his alcoholic parents, and that Whitton had an
unstable personality consistent with parental alcoholism and child abuse. Because
the evidence presented at the evidentiary hearing was cumulative to that considered
during Whitton’s penalty phase, he cannot establish that counsel’s failure to talk to
additional members of his family created prejudice. Accordingly, the
postconviction court properly denied this claim.
This Court has stated that trial counsel has a duty to investigate mitigation.
“ ‘In reviewing a claim that counsel’s representation was ineffective based on a
failure to investigate or present mitigating evidence, the Court requires the
defendant to demonstrate that the deficient performance deprived the defendant of
a reliable penalty phase proceeding.’ ” Simmons v. State, 105 So. 3d 475, 503
(Fla. 2012) (quoting Hoskins v. State, 75 So. 3d 250, 254 (Fla. 2011)).
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“It is unquestioned that under the prevailing professional
norms . . . counsel ha[s] an ‘obligation to conduct a thorough
investigation of the defendant’s background.’ ” Moreover, counsel
must not ignore pertinent avenues for investigation of which he or she
should have been aware. “[I]t is axiomatic that ‘counsel has a duty to
make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.’ ”
Id. Here, counsel spoke to several of Whitton’s family members who resided in
Florida. Their combined information supplied sufficient evidence for the trial
court to find multiple mitigating factors relating to Whitton’s childhood.
Admittedly, counsel did not travel to New York to inquire further into Whitton’s
background.
Relating to the evidence in support of mitigation, the trial court found:
The evidence is clear that the Defendant is an adult child of two
alcoholic parents, that he was physically and mentally abused by his
parents, and that he suffered a deprived childhood and poor
upbringing. The evidence also demonstrated that other siblings from
this same family environment are productive, law abiding citizens.
The Court finds that these mitigating circumstances have been
established and they are given considerable weight by this court.
The jury recommended the sentence of death in a unanimous verdict.
Whitton cannot establish that he was prejudiced. As noted, the additional
testimony provided at the evidentiary hearing was cumulative to that presented at
trial. It is therefore not likely that he would have received a lesser sentence if
counsel had presented the additional witnesses. Accordingly, the lower court
properly denied this claim.
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Whitton next alleges that counsel was deficient for failing to appoint experts
to testify regarding his likely fetal alcohol syndrome. Whitton’s claim is refuted
by the record. Counsel appointed Dr. James Larson, who testified “that the
Defendant had a full scale IQ of 84, indicating that his level of intellectual
functioning was in the Low Average range. . . . that the Defendant does not have a
major mental illness, but that he does have an unstable personality, consistent with
alcoholism and child abuse.” Pursuant to Dr. Larson’s testimony, the trial court
found mental problems as a mitigating factor and gave them some weight. Id.
This Court has stated that trial counsel is not deficient simply because
postconviction counsel could find a more favorable expert. See Hoskins v. State,
75 So. 3d 250, 255 (Fla. 2011) (“ ‘This Court has repeatedly held that counsel’s
entire investigation and presentation will not be rendered deficient simply because
a defendant has now found a more favorable expert.’ ” (quoting Card v. State, 992
So. 2d 810, 818 (Fla. 2008))). Accordingly, just because Whitton has found an
expert who would diagnose him as having fetal alcohol syndrome does not mean
that counsel provided deficient performance at the trial. Further, even if this Court
finds that counsel was deficient, because the evidence would be stronger, but
cumulative to that provided at trial, Whitton cannot establish prejudice. Therefore,
the postconviction court properly denied this claim.
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Cumulative Error
In his final claim on appeal, Whitton argues that the cumulative effect of the
errors in his trial entitle him to a new trial. The postconviction court denied this
claim below, finding that Whitton was not entitled to cumulative relief where there
had been no error found. The lower court is correct. As discussed above, Whitton
is not entitled to relief on any of his claims and is therefore not entitled to relief
based on cumulative error. See Merck, 124 So. 3d at 802.
PETITION FOR WRIT OF HABEAS CORPUS
In Whitton’s first habeas issue, he refashions one of his postconviction
claims into an ineffective assistance of appellate counsel claim. In his
postconviction motion, he alleged both that the State had offered false testimony
through McCollough and Ozio, and had suppressed evidence relating to
McCollough. Whitton argues that appellate counsel was ineffective for failing to
follow up on McCollough’s recantation.
Claims of ineffective assistance of appellate counsel are properly raised in a
petition for writ of habeas corpus. See Jackson v. State, 127 So. 3d 447, 476 (Fla.
Sept. 2013) (citing Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000)). “In
raising such a claim, the defendant has the burden of alleging a specific, serious
omission or overt act upon which the claim of ineffective assistance of counsel can
be based.” Id. (internal quotation marks and alterations omitted). Consistent with
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the Strickland standard, to grant habeas relief based on ineffective assistance of
counsel, this Court must determine:
first, whether the alleged omissions are of such magnitude as to
constitute a serious error or substantial deficiency falling measurably
outside the range of professionally acceptable performance and,
second, whether the deficiency in performance compromised the
appellate process to such a degree as to undermine confidence in the
correctness of the result.
Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986); see also Freeman, 761 So.
2d at 1069; Thompson v. State, 759 So. 2d 650, 660 (Fla. 2000). In raising such a
claim, “[t]he defendant has the burden of alleging a specific, serious omission or
overt act upon which the claim of ineffective assistance of counsel can be based.”
Freeman, 761 So. 2d at 1069; see also Knight v. State, 394 So. 2d 997, 1001 (Fla.
1981).
Whitton has not established that appellate counsel’s omission constitutes a
substantial deficiency outside the range of professionally acceptable performance.
Saunders testified that she received the communication from Billy Key that
McCollough wished to issue a statement recanting his trial testimony. She
contacted trial counsel, who asked her to secure the statement. Saunders attempts
were thwarted because McCollough refused to issue a statement unless the State
agreed that he would not be prosecuted for perjury. Because Saunders could not
overcome his refusal, McCollough did not submit a statement. Whitton does not
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provide any caselaw to support his assertion that Saunders owed him a greater
duty.
Further, Whitton cannot establish prejudice. As discussed above,
recantations are not credible. Without McCollough’s testimony, Ozio’s testimony
would still have provided the jury with evidence that Whitton admitted to
murdering Maudlin. That, coupled with the overwhelming evidence against
Whitton, makes it extremely unlikely that McCollough’s recantation would have
changed the outcome of the trial.
Because we determine that the specific error alleged is not one for which
Whitton is entitled to relief, we find that counsel is not deficient for failing to raise
a meritless argument. “If a legal issue ‘would in all probability have been found to
be without merit’ had counsel raised the issue on direct appeal, the failure of
appellate counsel to raise the meritless issue will not render appellate counsel’s
performance ineffective.” Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000)
(quoting Williamson v. Dugger, 651 So. 2d 84, 86 (Fla. 1994)).
In Whitton’s second habeas issue, he argues that appellate counsel was
ineffective for failing to ensure the record was complete by ensuring that the notes
to and from the jury were included in the record. As with the previous issue, this
claim is properly raised and the standard is as discussed above. See Jackson, 127
So. 3d at 476. Because we determined that Whitton would not have been entitled
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to relief on this issue, we likewise determine that counsel was not deficient. See
Rutherford, supra.
CONCLUSION
For the foregoing reasons, we affirm the postconviction court’s denial of
Whitton’s 3.851 motion and deny his petition for a writ of habeas corpus.
It is so ordered.
LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.
LABARGA, C.J., concurs with an opinion, in which PARIENTE, J. concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
LABARGA, C.J., concurring.
I concur with the majority opinion. I write separately, however, to address
the lack of clarity in the record with respect to the notes submitted by the jury and
to emphasize the need for trial courts to fully comply with the requirements of
Florida Rule of Criminal Procedure 3.410. Rule 3.410 establishes a procedure for
trial courts to follow when jurors request that additional instructions be provided or
that testimony be read or played back. This rule serves the dual purpose of
protecting the interests of parties and preserving the record. Its purpose is clear.
Jury deliberations are sacrosanct, and the impact of a jury’s deliberations
cannot be overstated. It is of paramount importance that both parties be made
aware of any inquiries from the jurors and that the treatment of these inquiries is
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fully reflected in the record. Although not every juror inquiry that falls within the
scope of rule 3.410 will result in the jury being brought back into open court to
receive additional instructions or a read-back or play-back of testimony, the rule is
clear that every inquiry will result in notice to counsel for both parties. Moreover,
rule 3.410 envisions that the record will clearly reflect the discussion and the
resolution of the juror inquiry, which necessarily involves input from both parties.
When the trial court receives an inquiry from the jury, after notifying the
prosecuting attorney and counsel for the defendant, the court should go on the
record and read the note aloud in the presence of the defendant, defense counsel,
and the prosecuting attorney. Then, still on the record, the trial court should invite
input from both parties as to how to respond to the inquiry. The trial court should
not respond to any inquiry from the jurors without first discussing the matter on the
record with both parties. Strict adherence to this procedure is necessary to protect
the defendant and the State, preserve the record, and assist the appellate court upon
review.
PARIENTE, J., concurs.
Two Cases:
An Appeal from the Circuit Court in and for Walton County,
Michael Gordon Allen, Judge - Case No. 661990CF000429CFAXMX
And an Original Proceeding – Habeas Corpus
- 37 -
Mark Evan Olive of the Law Offices of Mark E. Olive, P.A., Tallahassee, Florida,
for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, and Carolyn Marie Snurkowski, Associate
Deputy Attorney General, Tallahassee, Florida, and Carol Marie Dittmar, Senior
Assistant Attorney General, Tampa, Florida,
for Appellee/Respondent
- 38 -