Oscar Ray Bolin Jr. was tried nine times. Three women were killed in Hillsborough and Pasco Counties in the winter of 1986, and for each of the three he was convicted, had the conviction thrown out, and was tried again, some of them twice over. The last jury verdict came down in 2001, fifteen years after the killings. He was executed in January 2016.
That is what makes this file worth reading rather than summarizing. Dockets 78468, 80794 and 78905 in the Supreme Court of Florida, 264 pages, are the rounds in which the first set of convictions came apart: the defense briefs, the replies, and the three opinions. A record that contains the same fight several times over shows which parts of a case hold and which keep collapsing on review.
The recurring problems were the evidence the juries were allowed to hear, hearsay among it, and testimony from Bolin's former wife.
One side of the argument is missing, and you should know that before you start. This set holds the defense briefs, the defense replies and three opinions of the court across dockets 78468, 80794 and 78905, but no answer brief from the State is in the digitized record, so the prosecution's written case is simply absent. What that leaves is the defense's account of what went wrong at trial and the court's rulings on it.
Nine trials is the fact to keep in front of you. Bolin was convicted for each of the three killings, the convictions were reversed, and the cases were tried again, some more than once, with the last verdict returned in 2001 and the execution carried out in January 2016. That is why the record is worth publishing rather than summarizing: a file containing several rounds of the same fight shows which parts of a case hold up under repetition and which keep collapsing.
The State's answer brief is absent from this set and that is a gap in the digitization, not a restriction: nobody withheld it. FSU's law library scanned what the collection held, and what it held for these three dockets was the defense side and the opinions. The missing brief is on the docket in Tallahassee and the clerk of the Supreme Court of Florida can supply it. Everything on this page is public record and free to reproduce.
Nine trials produced nine rounds of paperwork, and the scan quality moves with the decades: the 1991 filings read worse than the 2001 ones. Across the 264 pages it averages roughly three quarters legible. We split 320 run-together words, repaired 674 misreadings where the answer was unambiguous, and left every capitalized token exactly as scanned. The citation tables are not reproduced.
FILED S1D J. WHITE
IN THE SUPREME COURT OF FLORIDA 41% 8 1993 CLERK, SUPREURp
OSCAR RAY BOLIN,
By Chief Deputy Clerk Appellant, vs. Case No. 7 5, 468
STATE OF FLORIDA,
Appel 1 ee.
APPEAL FROM THE CIRCUIT COURT
STATE OF FLORIDA
INITIAL BRIEF OF APPELLANT
JAMES MARION MOORMAN
PUBLIC DEFENDER
TENTH JUDICIAL CIRCUIT
ASSISTANT PUBLIC DEFENDER
FLORIDA BAR NUMBER 350141
Public Defender's Office Polk County Courthouse
P. 0. Box 3000--Drawer PD Bartow, FL 33830
(813) 534 - 4200
ATTORNEYS FOR APPELLANT
PAGE NO.
ISSUE I
THE TRIAL COURT ERRED BY RULING THAT
LEGE BY FAILING TO PREVENT HIS EX-
WIFE, A STATE WITNESS, FROM REPEAT-
ING MARITAL COMMUNICATIONS DURING A
DISCOVERY DEPOSITION, ADMISSION AT
ISSUE I1
THE TRIAL COURT ERRED BY FAILING TO
CONDUCT A SUFFICIENT INQUIRY INTO
APPELLANT'S PRO SE MOTION TO DIS-
ISSUE I11
THE TRIAL JUDGE ERRED BY FAILING TO
REQUIRE THE PROSECUTOR TO GIVE HIS
REASONS FOR EXERCISING PEREMPTORY
STRIKES AGAINST AFRICAN-AMERICAN
ISSUE IV
THE TRIAL COURT ERRED BY GIVING THE
STATE'S SPECIALLY REQUESTED JURY
INSTRUCTION ON THE LAW OF ACCESSORY
AFTER THE FACT BECAUSE IT DID NOT
PROPERLY RELATE TO THE EVIDENCE AND
COULD BE CONSTRUED BY THE JURY AS A
COMMENT ON THE CREDIBILITY OF THE
TOPICAL JNDEX TO BRIEF (continued) ISSUE V
THE TRIAL COURT ERRED BY DENYING
APPELLANT'S CHALLENGE FOR CAUSE TO
1. Findings in Support of Death Sentence
CERTIFICATE OF SERVICE
TABLE 0F CITATIONS
CASES PAGE NO.
Blackshear v. State, Butler v. State, Capehart v. State, Chiles. St Doyle v. State, Driver v. State, Eddinas v, Ok 1ahoma, Griffin v. State, Hamilton v. Hamilton Steel CorD., Hamilton v. State, Hardwick v. State, Hill v iii TABLE OF CITATIONS (continued) Hitchcock v. Duqqer, In..re/ Jones v. State, Kerlin v. State, Koon v. State, Moraan v. Illinois, Nelson v. State, People v. Simpson, Reynolds v. Stat e, Schette r v. Sche tter, Slappy. State, State v. D iGuilio, State v. Johu,
34 State v. Neil, Thompson v. State, TABLE OF C f T19TIONS (continued) Tibado v. Brees, Truly Nolen Exterm ina tina v. Thomasson, Tucker v. State, 484 S O. 2d 1299 (Fla. 4th DCA), rev. den., 494 So. 2 d united States v. A.T, T. co. I Whitfield. State,
R AUTHORITIES
STATEMENT OF THE CASE
A Hillsborough County Grand Jury returned an Indictment on August 1, 1390 charging Oscar Ray Bolin, Jr, with first degree murder, armed robbery and kidnapping (R1272-5). The Court granted Appellant's Motion for Protective Order to prevent dissemination of any of the materials provided in discovery to the media of: ''any other member of the general public" on November 2, 1990 (R12S2-6).
Subsequently, over Appellant's objection, the State's Motion to Perpetuate Testimony of the witness Cheryl Coby was granted November 21, 1390 (R1289-91,1741-8).
Subsequently, Appellant moved to continue the deposition of Coby, citing the vast amount of discovery and the State's failure to supply tapes of conversations between the witness and Appellant in a timely fashion (R1236-8,1748,1767-78). On January 8, 1991, the discovery deposition of Cheryl Coby commenced and Appellant's request to be present in person was denied by the court (R1133-43, 1146-60). The court also denied Appellant access to the deposition by electronic means, allowing him only to be in a nearby room where counsel could visit him (Rll62-3).
Before the commencement of the videotaped deposition to perpetuated testimony, defense counsel requested that a judge be present to rule on objections (R1755,1757). The State contended that if the videotape were ever to be played for the jury, the court could rule on defense objections at that time (R1760).
On March 11, 1991, Appellant filed a Motion in Limine Regarding Husband/Wife Privilege seeking to exclude from evidence all communications from Appellant to his spouse during the time they were married (R1303 - - l l). At a hearing held on this motion, March 22, 1991, the State contended that Appellant waived the spousal privilege when his counsel questioned Cheryl Coby about statements she had made to law enforcement revealing communications Appellant had made to her during their marriage (R1337-9,1085-5), The court denied Appellant's motion in limine, stating that counsel waived the "defendant's husband/wife privilege... unless Defense counsel can establish ineffective assistance of coUn5el by competent evidence" (R1340).
Appellant, acting pro m, then filed a "Motion to Discharge Counsel" asserting that he was dis satisfied with his attorneys because they had waived his spousal privilege without his consent
(R1386-7). He requested appointment of substitute counsel (R1387).
hearing held April 12, 13'31, the court addressed Appellant and told him that his counsel had previously appeared before him and were competent (R1129). He denied the motion far discharge (R1129- The case came t o trial before Circuit Judge M. William Graybill and a jury on July 5-12, 1'391 (Rl-1077). During jury selection, defense counsel objected to the State's excusal by peremptory strike of two African-American prospective jurors and asked the Court to require the prosecutor to give reasons for their excusal (R462,468). The Court ruled that the defense had nat shown a strong likelihood that the State based their strikes on racial bias (R463,468-9).
Appellant also challenged for cause a prospective juror who said on voir dire that he would not consider mitigating evidence
(R465-6). The Court denied the challenge for cause and defense counsel used a peremptory strike to excuse him (R467). Appellant subsequently exhausted his peremptory strikes, moved for an additional peremptory, and identified the member of the jury panel who he would excuse if granted the additional strike (R470). The court refused to allow an additional peremptory strike (R474).
During the guilt or innocence trial, Appellant objected to the introduction into evidence of an altered portion of a letter which he wrote, while incarcerated, to a police detective (R755-63). The court allowed the State to elicit testimony from the detective about the contents of the letter (R762-5).
Over Appellant's objection, the Court agreed to give, c a State requested special jury instruction on the law of accessory after the fact although it was not applicable to Appellant (R825-6,829- 30,1585). The jury returned verdicts of guilty as charged to first degree murder, robbery with a weapon and kidnapping (R898,1580-1).
the subsequent penalty trial, the jury was instructed on the aggravating circumstances: (1) prior conviction of violent felony, (2) during the caurse of a kidnapping, and (3) committed for financial gain (R1065-6,1582). The jury was permitted to consider the mitigating Circumstances of: (I) impaired capacity to conform behavior to the requirement of law, and (2) any other aspect of character or background (R1066,1583). The jury returned a recommendation of death (R1071,1592).
A sentencing hearing was held July 31, 19'31 (Rl213-37).
Appellant's motion for new trial was denied (R1227,1593-7). After hearing arguments of counsel (R1227-32), the court recessed and returned with findings that the three aggravating circumstances instructed upon were proved (R1232-3,1605, see Appendix), The court found two mitigating circumstances: (1) impaired capacity due to a mental disturbance, and (2) abused childhood (R1233-4,1606, see Appendix).
The court sentenced Appellant to death on the first degree murder count (R1234,1601). On the robbery and kidnapping charges, the court departed from the guidelines recommended sentence of 17- 22 years (R1607) and imposed consecutive sentences of thirty years and life (R1234-5,1603-4). As area son for guidelines departure, the court cited the unscored capital felony (R1236-7,1607).
Appellant filed a timely notice of appeal on August 12, 1991
(R1610-1). Pursuant to Article V, Section 3(b)(l) of the Florida Constitution and Fla. R. Crim. P. 9.030(a)(l)(A)(i), jurisdiction lies in this Court.
STATEMENT OF THE FACTS
A. State's Evidence - Guilt or Innocence Phase On January 2 5, 1986 around 8: OO a.m., a jogger discovered a body in the woods near his home (R635-6). He notified the Hillsborough County Sheriff's Office (R636). When they arrived, he pointed out set of tire tracks which had crossed over those of his daughters car (R636-7). She had returned home shortly after1:00 a.m. that morning (R636-7).
Associate Medical Examiner, Lee Miller, went to the scene and concluded that the victim had died from multiple stab wounds (R698- 3). Be testified that the victim, determined to be Natalie Holley, was fully clothed and was wearing several items of jewelry (R702- Vinda Woodson, Natalie Holley's co-worker data Church's Fried Chicken restaurant in Tampa, said that the two of them closed up the restaurant around midnight on January 2 4, 1986 (R502-3). After cleaning up and locking up the cash receipt, she and Natalie Holley walked out together and left in their respective cars about Holley's automobile was found abandoned at the intersection of Smitter Road and Lake Magdalene Boulevard, estimated at 5. 4 miles from where her body was discovered (R647,656), Sergeant Raney, a homicide investigator, found a shoe impression in the sand nextto the driver's door (R642,649). He purchased a pair of Trax tennis shoes from a K-Mart outlet for comparison purposes (R652-4,663).
The FBI laboratory later determined that it was highly likely that this shoe impression was made by a Trax tennis shoe (R689).
However, the FBI Agent could not connect questioned shoe impressions from the scene where the body was found with the one at the victim's car (R693).
On the opposite corner from where the victim's car was found, Deputy Ronald Valenti had observed two vehicles, one with its hazard lights on, around 2: OO a.m., January 25, 1986 (R509-11). He stopped to investigate and found a man and a woman in the vehicle which had its hazard lights on (R516). Deputy Valenti put the tag number into his computer and learned that the 1384 Pontiac Grand Prix was registered to Cheryl and Oscar Bolin (R515-6).
The male driver explained to the deputy that he had run out of gas and that the woman was taking him to get some (R518). Deputy 0 Valenti asked the woman if she was okay and she replied that
the victim's vehicle parked on the southwest corner of the intersection at the same time that he was investigating the two cars stopped on the northwest corner (R531). He said that he had come to believe that he hadn't seen Holley's Dodge Dart on the southwest corner until after this incident (R531-2). Deputy Valenti could not recall what type of vehicle was parked in front of Bolin's Pontiac when he checked the tag (R531). He agreed that a little over two weeks after the incident he had written, "writer i s almost sure that the victim's vehicle was at said location when writer observed a the other two parked vehicles" (R552).
Sergeant Raney, as part of his investigation of the homicide, contacted Cheryl Bolin on January 28, 1986 with reference to Deputy Valenti's report about her car (R666). She told him that she hadn't been driving and that as far as she knew it was parked outside her home on the night in question (R580-1).
this point, the investigation of the Holley homicide remained in limbo until July 1990. Cheryl Bolin had been remarried to Danny Coby and was living in Indiana (R614-5). In response t o a telephoned tip from Danny Coby, police officers interviewed Cheryl on July 16, 1330 about the Holley homicide (R615-6). At trial, over Appellant's objection that her testimony violated the spousal privilege, she was the State's key witness against Appellant (RS44-6).
Appellant's ex-wife testified that on the evening of January 2 4, 1986, she and Appellant drove to a Burger King restaurant which was directly across the street from the Church's Chicken restaurant where Natalie Holley worked (R559-60). They bought coffee and sat in their car in the Burger King parking lot for "at least an hour" facing the Church's Chicken outlet (R560). Cheryl Coby testified that Appellant told her he was "scoping the place out" (R564).
They returned home, watched television and went to bed at 10:20 p.m. (R602). Cheryl Coby testified that she fell asleep, but was awakened by her husband around 2: OO a.m. (R565,604-5). He was fully dressed and told her to get up, saying "I got to show you ~ something" (R565--6). The witness testified that while Bolin was changing his shoes, she noticed blood QII the new Trax tennis shoes they had recently purchased (R566-7). He dropped a purse in front of her and then dumped the contents out on the bed (R567-8).
Cheryl Coby testified that her husband said that the purse belonged to the manager of the Church's Chicken restaurant (R569).
Church's Chicken as she drove away from work and got her to pull over by flash ing his headlights (R572). Appellant said he believed that the manager would be carrying the cash bank deposit with her (R573). H e intended to rob her of this money (R573).
Bolin further told his wife that after he had stopped the Church's Chicken manager, a policeman pulled up (R574). Bolin held a gun at the woman's side and told
(R574). He convinced the police officer that they were just having car trouble and the officer left (R574).
Next, Bolin said he searched the managers car, but could not find any money (R573). He and the woman then went to a orange grove (R575). Appellant's ex-wife said that he told her that he couldn't shoot the manager because it would make too much noise
(R575). He stabbed her to death instead (R575).
Cheryl Coby further testified that she and Appellant left their mobile home and drove to where a car was parked (R570-2).
The witness identified a photographic exhibit as depict ing the car and the location where she and her husband drove the early morning of January 25, 1986 (R576). While she watched, Appellant took branch and wiped over tracks on the ground (R577). He also took towel and wiped down both the inside and outside of the parked 0 automobile (R577). Then, Bolin and his wife drove north on Interstate 275 as far as the intersection of Route 52 (R578). During this drive, Bolin threw the blood-stained tennis shoes and the purse out the window (R578).
Appellant's ex-wife said that a few days later she was cantac ted by a law enforcement officer who asked about the whereabouts of her vehicle on the night of the homicide (R580-1). She told him that she didn't drive anymore and that as far as she knew, the car was parked outside her mobile home (R581). She didn't mention anything concerning her husband's admissions because he was "sitting right there" (R581). Cheryl Coby testified that the first person she told about what happened was her next husband, Danny Coby
(R581). She admitted that she was very upset when Danny Coby informed the Indiana police in July 1990 about the homicide (R616).
She said that she was afraid that she might face prosecution for her part in covering up the homicide (R617).
Some corroboration for Cheryl Coby's testimony came from Deputy Ronald Valenti. On July 16, 1390 (approximately 4 1/2years after the stop), he was shown a photo pack and asked to identify the man who was driving the Grand Prix on the night of the homicide
(R525-8). He selected Bolin's photo (R52G-3). However, he was never able to identify the woman (R523).
The Hillsborough County Sheriff's Office was able to locate the Pontiac Grand Prix in July 1990, although Bolin had sold it years earlier (R708-11). Comparison between two nylon fibers in the clothing of Natalie Holley and the rear seat cover of the Grand Prix showed that they matched (R739-40). FBI Agent Michael Malone was able to conclude that the fibers on the victim's clothing came from either Appellant's Grand Prix or another vehicle with the same upholstery (R739-40,744).
Captain Gary Terry of the Hillsborough County Sheriff's Office became involved in 1390 with the investigation of the Holley homicide (R747). He testified that on June 2 2, 1931 he received a letter written to him by Appellant (R764-5). In the letter, Bolin told Captain Terry to ask Cheryl if there was anything else he wanted to know because Cheryl 'I knows just about everything that he was ever a part of" (R765). Captain Terry further testified that Bolin wrote that Cheryl knew about "this homicide he's charged with" (R765).
B. Defense Evidence - Guilt or Innocence Phase Danny Coby, Sr., testified that he married Bolin's ex-wife in April, 1989 (R770). Around July 16, 1930 he contacted the police with regard to this homicide which Cheryl had told him about
(R771). Coby testified that his wife never acted as though she intended to tell the police about the crime (R771-2). This contradicted her earlier testimony (R583). In fact, she reacted this disclosure to the police by saying she "hated a f-in snitch"
(R772). Danny Coby further testified that Cheryl "bragged" about how she had misled the police officer who investigated the stop of Bolin's Grand Prix on the night of the homicide (R772-3).
own defense (R785-823). He explained that his stepsister, Milanda Williams, who resided with the Bolins, warked at Church's Chicken (R786). She had told him that Church's deposited their receipt during the day (R737). Therefore, he was aware that a manager leaving at night would not have the bank deposit (R787).
night in question, a friend of Appellant, Harold Jackson, asked to borrow Bolin's car (R800). Appellant left the keys in the Grand Prix for Jackson (R800). After Bolin and his wife watched the news on television, they went
Appellant was awakened by a telephone call from Jackson (R788). Jackson said that he had had a "confrontation" with Natalie Holley and that he was in trouble (R788).
Jackson didn't give Appellant all of the details, but told him that since Appellant's Grand Prix was involved, he had better "clean UP a car'' on Smitter Road (R78S).
Bolin woke up his wife and made her accompany him to the parked vehicle (R790). Contradicting the testimony of his ex-wife, Bolin testified that he found the victim's pocket book on the floor of the abandoned car (R730-1). He wiped the victim's car down and drove away (R791). While they were driving an the interstate, Cheryl went through the pocket book and took out seventy--fivedollars (R792), Then she threw the pocket book out the window (R7'32).
Bolin denied that he was the person to whom Deputy Valenti spoke on the night of the homicide (R792-3). Appellant explained that Harold Jackson was of a similar height and weight to himself
(R790,820) Both men had long brown hair and mustache (RS20-1).
a Appellant was not surprised that Deputy Valenti mistakenly identified him as being the person driving the Grand Prix on Smitter Road the morning of the homicide (R821-2).
Appellant further testified that Harold Jackson telephoned him again on the Monday following the homicide (R812). Jackson admitted over the phone that he had killed Natalie Holley (R813).
Jackson also explained the details of the incident (R813-5). Bolin then repeated to his ex-wife what Jackson had told him (R733-4, Sherry Jauregui, Appellant sister, testified that her brother and an individual named Harold Jackson visited her home in Union City, Indiana, during the latter part af 1986 (R778-9). Bolin was driving a truck at the time (R773). Jackson had about the same build as Bolin (R779). It was a short visit during which her brother and Jackson took showers to avoid stopping data truck stop
C. Penalty Phase Evidence The State published a stipulation agreed to by the defense that Bolin had Ohio convictions in 1388 for rape and kidnapping
(R926). No further evidence in aggravation was presented by the State.
The defense presented testimony by Bolin's mother, his sister and a mental health expert (R926-1042). Mary Baughman, Appellant's mother, testified that she was never married to Oscar Bolin, Sr., Appellant's father, but had four children with him (R927-8).
Appellant, the oldest, was raised in a nightmarish home environment, where the parents fought constantly, both verbally and physically (R927-9). Appellant's father would not provide for the children (R929). He threatened the children's mother with a gun on many occasions (R333). He physically abused Appellant "whenever he felt like he wanted to do it" (R934-5).
Appellant's parents separated and the children spent some time with each (R'335-6). Appellant's mother testified that Appellant would return from the custody of his father "dirty, half-starved to death" and sometimes bruised (R337). Nonetheless, Appellant often tried to run away from his mother's custody and she kept him bound with a dog chain at home to prevent this (R'336), When Appellant was 12 or 13, he went to live with his father permanently (R939). When he returned, around age 17, he soon met Cheryl and married her (R939-40).
Appellant's younger sister, Sherry Jauregui, also testified about their upbringing (R949-68). She said that they grew up in West Liberty, Kentucky with two parents who " tried to kill each other all the time" (R950-1). The father often abused Appellant, beating him with a baseball bat and a dog chain (R'353). On one occasion, the father locked the family in the house, doused it with gasoline, and tried to set it on fire (R954). The grandfather intervened and prevented the burning (R954). The witness said she got married at age 14 in order t o get away from home (R955).
Sherry Jauwcgui further testified that Appellant was devastated by the murder of their brother Arthur, at age 18 (R955,928).
Appellant was also deeply depressed about the death of his firstborn son (R956). The witness herself had twice attempted suicide and had been a juvenile delinquent (R967).
Dr. Robert Berland, a board certified forensic psychologist testified that he did an extensive evaluation of Bolin (R969-74).
He administered the Minnesota Multiphasic Personal Inventory to Bolin on two occasions (R975). Dr. Berland said that the results of those tests indicated that Bolin was psychotic (R987-90). Particularly significant was Bolin's unusually high score on the mania scale in addition to high scores on the paranoia and schizophrenia scales (R987-9).
Dr. Berland also administered the Weschler Adult Intelligence Scale (R990). Bolin showed clinically significant deviation in his performance on different parts of this test from well above average I.Q. to low average (R991-2). Dr. Berland testified that this type of disparity indicates damage to same part of the brain
The doctor conducted a clinical interview with Appellant and interviews with family members and other people who knew him (R333, 939). These interviews supported the conclusion that Bolin had a genuine genetically inherited mental illness (R996-7,1007-3), There was also a history of head injuries which could have caused brain damage (R1001-3). His mother drank heavily on a daily basis throughout the pregnancy (R1001). A t age 17, Balin was in jail and tried to hang himself (R1003). Efforts at reviving him took some time (R1003). Finally, Appellant reported abusing amphetamines far a period of five years on a daily basis (R1003). Dr. Berland explained that such persistent use of amphetamines causes measurably brain damage and "an acute paranoid condition which appears to be permanent'' (R1003).
Dr. Berland gave his opinion that Bolin suffered from an organic personality syndrome from an early age (Rl009). From his late teens or early twenties on, he had either schizo-affect ive disorder or bipolar disorder (Rl009). While Bolin was not legally insane, he was under the influence of a biologically-caused mental or emotional disturbance for a long time before the offense and continues to be mentally ill (R1012-3). Bolin was capable of recognizing the criminality of his conduct, but was substantially impaired in his ability to resist illegal impulses (R1013-4).
The State presented a rebuttal witness, Corporal Lee Baker of the Hillsborough County Sheriff's Department (Rl042-3). He testified that he interviewed Bolin's mother, Mary Baughman on July 27, 1990 (R1043). At that time, she said that she placed Appellant with his father at age 12 because he was beating up his brothers and sisters (R1043). Allegedly, he was "attempting to tear the arms and legs off these children" (R1043).
SUMMARY OF THE ARGUMENT
Appellant did not waive the husband-wife privilege which would have prevented Cheryl Coby from testifying about the admissions Bolin allegedly made to her about this homicide at the time they were married. The trial court's ruling that Appellant waived the privilege by failing to file a motion in limine prior to the taking of Cheryl Coby's deposition to perpetuated testimony was error.
Appellant did object to the confidential communications being revealed in the deposition to perpetuated testimony. Defense coun--.
sells prior inquiry into the communications during the discovery deposition was not a waiver because Coby had previously told law enforcement about Bolin's statements. Defense counsel merely asked to discover what Coby had told law enforcement. Significantly, a protective order had already been granted which precluded Coby's deposition from becoming public record. Indeed, there was no actual public disclosure of the privileged communications until trial. Also, Appellant had always asserted the privilege personally and had attempted to attend the deposition. H e never ratified his counsel's action. If counsel did impair the spousal privilege, it was adverse to Bolin and he should have been entitled to bar the marital communications from coming in at trial. Finally, the privileged communications were a highly prejudicial and substantial part of the evidence against Appellant. The error in admitting them cannot be harmless.
After the trial court's ruling that defense counsel had waived the husband--wife privilege, Appellant filed a pro se motion to discharge his counsel and have other counsel appointed, Although the 8 trial judge held a hearing on this motion, he did not allow Appellant to be heard until after he had already denied the motion. The trial court did not follow the procedure mandated by this Court pertaining to the necessary inquiry when an indigent defendant desires to discharge his court-appointed counsel.
two peremptory challenges to strike African-American prospective jurors, but the trial court refused to make the prosecutor state non-racial reasons. One of these challenged jurors had said nothing on voir dire which would suggest that she would not be impartial. The court erred by not requiring the prosecutor to give reasons for his excusal of this prospective juror.
The State's specially requested jury instruction on accessary after the fact was not relevant to the evidence and should not have been given. It was prejudicial to Appellant because the jury could have interpreted it as the trial judge's comment on the credibility of the State's key witness, Cheryl Coby.
A prospective juror stated that he believed in "an eye for an eye" and would not be interested in hearing mitigating evidence about the defendant's background. Appellant's challenge for cause t o this prospective juror should have been granted because a reason able doubt about the juror's impartiality was raised and neither the State nor the trial judge did anything t o rehabilitated the challenged juror.
ARGUMENT
ISSUE I
THE TRIAL COURT ERRED BY RULING THAT
LEGE BY FAILING TO PREVENT HIS EX-
WIFE, A STATE WITNESS, FROM REPEAT-
ING MARITAL COMMUNICATIONS DURING A
DISCOVERY DEPOSITION. ADMISSION AT
TIONS WAS REVERSIBLE ERROR.
Section 9 0. 504 of the Florida Evidence Code (1991) sets forth the Husband-Wife privilege:
a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouse while they were husband and wife.
The privilege may be claimed by either spouse Since Oscar Ray Bolin and Cheryl Coby were husband and wife a t the time when both this homicide and the alleged admissions occurred, the privilege is applicable to Coby's testimony. In fact, the State specifically conceded that the communications between Appellant and his ex--wife ouldnot come into evidence at trial absent waiver by Appellant of the husband-wife privilege (R1037).
Waiver of privilege has been addressed by the legislature.
Section 90.507 of the Florida Evidence Code provides:
Waiver af privilege by voluntary disco - sure. Aperson who has a privilege against the disclosure of a confidential matter or communication waives the privilege if he, or his predecessor while holder of the privilege, voluntarily dis closes or makes the communication when he does not have a reasonable expectat ion of privacy, or consents to disclosure of, any significant part of the matter or communication. This section is not applicable when the disclosure is itself a privileged communication.
Professor Ehrhardt sums up this provision as meaning that "the party who is the holder of a privilege against the disclosure of confidential communications waives the privilege when the contents of the communication are voluntarily disclosed." Ehrhardt, Florida Evidence 5507.1 (1932 edition). A waiver of the privilege lets "the horse out of the barn" and the privilege cannot be reinstated later. Hamilton v. Hamilton Steel Carp., 409 So. 2d 1111 at 1114 (Fla. 4th DCA 1952).
defense coufisel first invoked the husband-wife privilege during the January 11, 1331, deposition to perpetuated testi- 0 mony of Appellant's ex-wife, Cheryl Coby (R1086,10~9-1101). The State took the position both then and in the hearing held March 2 2, 1991 on Appellant's "Motion in Limine Regarding Husband/Wife Privilege" that Appellant had already waived his privilege during the discovery deposition of Cheryl Coby by asking her questions about statements she attributed to her husband (R1086-8). The prosecutor argued that Appellant had t G elect between haw ing discovery of his former wife's statements to law enforcement and preservation of the husband-wife privilege (R1085-8,1093-5), The court asked defense counsel why, prior t o taking the discovery deposition, he didn't file a motion t o prohibit the State from elicit ing marital commune-- cations during the deposition to perpetuated testimony (R1101-3).
The court eventually ruled that defense questioning of Cheryl Coby about marital communications during the discovery deposition was a waiver of the husband-wife privilege "unless such delving is tanta-- mount to ineffective assistance of counsel" (R1340).
At trial, the judge acknowledged the possible legal infirmity of his ruling and suggested that the State "give serious consideration" before elicit ing testimony of marital communications from the witness, Cheryl Coby (R7). The State offered and defense counsel accepted a stipulation granting a standing objection to each spousal communication introduced into evidence by the testimony of Cheryl Coby (R544-5). The court noted that the discovery deposition of Coby was not public record yet and ordered it to be a sealed portion of the court file for appellate purposes (R545-7).
Before Cheryl Coby divulge any communication from Bolin in her 0 testimony, defense counsel objected (R561) and was instructed by the court to make no more objections based on the spousal privilege unless the confidential communication elicited had not been apart of the discovery deposition (R562--4).
A. Appellant Did Not Waive the Husband-Wife Privilege at the Discoverv D e ~ option s Because His Ex-Wife, Cheryl Coby, Only Disw m Which She Had Already Disclosed to Law Enfor cement.
is undisputed that Cheryl Coby had already told law enforcement about Appellant's statements during their marriage which tended to incriminate him in the homicide of Natalie Holley.
her voluntary disclasures before the discovery deposition. However, Appellant retained the power to prevent his ex-wife from testifying at his trial as to his communications which occurred during their marriage under Section 90.504, Florida Evidence Code (1991). Brown
v. May, 76 S o. 2d 652 (Fla. 1954).
The important feature of the discovery deposition is that defense counsel only sought to discover from Cheryl Coby what marital communications she had already disclosed to law enforcement
(R1083-4). The prosecutor took the position that defense counsel had to rely upon "the pal ice accounts of Ms. Caby's statements concerning what has occurred between these two" or else waive the privilege by asking Caby about the statements "in any type of proceeding" (R1085-6). The trial judge cited Tibado v. Brees, 212 SO.
2d 61 (Fla. 2d DCA 1968) and asked defense counsel why a similar waiver had not occurred at bar (R108S-9).
0 Tibado presented a quite different situation from the case at bar. The husband in Tibado testified voluntarily at deposition about confidential communications between himself and his wife, Then, he tried at trial to assert the husband-wife privilege to prevent his disclosure from coming into evidence. The Second District correctly held that he waived the privilege by divulging confidential communications in a deposition that was filed as public record.
however, Appellant did not reveal any Confidential communications, s o he retained his privilege. His ex-wife only disclosed what she had already told law enforcement. Finally, Coby's deposition was not and could not be made public i n accord with the protective order issued by the trial court (R5-6,1285-6).
Another case heavily relied upon by the State was Tucker v.
2d 1153 (Fla. 1356). In Tucker, the defendant's attorney-client privilege was waived when defense counsel listed his confidential expert psychiatrist appointed pursuant to Fla. R. Crim. P. 3.216(a) as a witness and allowed the State to take her deposition.
Tucker might be on point with the case at bar if Cheryl Coby were adefense witness. However, Coby was always a state witness.
Moreover, she had already disclosed the confidential communications t o the State; therefore, the State did not gain information through the discovery deposition as was the case in Tucker. Tucker's rationale is no more than the general rule of law tht "any voluntary disclosure by the holder of... a privilege is inconsistent with the confidential relationship and thus waives the privilege."
United States v. A.T.T. Co., 642 F. 2d 1285 at 1299 (D.C. Cir.
defense because the privileged communications had already been disclosed to the State by Coby's betrayal of Bolin's confidential communications.
Another case for comparison is People v. Simpson, 68 Ill. 2d of Illinois held in Simpson that the defendant waived his privilege when he made a public reply to his wife's revelation of confided-- tial communications. The Simpson court emphasized that the wife's disclosure of confidential communications to police officers while c in the defendant's presence did not waive the privilege. However, the defendant's response which admitted the confidential communication acted as a waiver. The court wrote:
When confronted by his prior, privileged statement in the trailer he could have remained silent or denied having made such a statement. Under these circumstances, the privilege of the communication in the trailer would, no doubt, have been preserved, despite his wife's revelation of that conversation to the police.
369 N.E.2d at 1252.
police and at her discovery deposition. Accordingly, under the rationale of the maps o n court, no waiver occurred because Appellant did not reveal anything himself or adopt Coby's account.
2d 201 court noted the "strong public policy in favor of the marital pri -.
held that it was reversible error to admit testimony from the defendant's wife which disclosed marital communications over her husband's objection. 463 So. 2d at 204. Moreover, this CGurt rejected the State's contention that Koon waived his privilege by making admissions about the murder to two other people.
At bar, Appellant neither made admissions about the homicide nor disclosed marital communications. Consequently, he never waived his privilege to prevent his ex-wife from testifying at his trial to the confidential communications.
B. Appellant Did Not Waive the Husband-Wife Privilese Because No Actual Public Disclosure of the Confidential Communications In Truly Nolen Exterminatins v. Thomasson, 554 S o. 2d 5 (Fla.
argued that the work-product privilege was waived when a party failed to assert it at the earliest opportuni-- ty. The Third District, however, held that there was no waiver because there had never been an actual disclosure of the privileged information. Consequently, a pleading asserting the privilege is effective anytime before an actual disclosure has occurred.
Applying this analysis to the case at bar, Appellant's objection at the taping of the deposition to perpetuated testimony and the subsequent Motion in Limine Regarding HusbandlWife Privilege preserved his right to invoke the privilege. While the trial court's observation that Appellant could have filed a motion prior to the discovery deposition of Cheryl Coby was correct, Appellant still did not waive his privilege by waiting until a later time to assert it. As the court noted, there was no public disclosure of Cheryl Coby's deposition or any communications prior to testimony a t trial
(R545-6). Defense counsel was entitled to rely an the court'spro - - tective order entered November 2, 1390 to prevent any public dis - closure of the marital communications (R1285-6). Hence, there was no waiver.
Another case which is relevant by analogy is In re Doe, 964F, 2d 1325 (2d Cir. 1992). In m, a government witness asserted the psycho therapist-patient privilege in refusing to allow the defense 0 access this psychiatric files or to answer defense counsel's questions at a pretrial hearing. The trial court held the witness in contempt of court, On appeal, the Second Circuit recognized the psycho therapist-patient privilege, but affirmed the district court.
Because a protective order was in force, there would be no public disclosure of confidential matters by answers of the witness. The court wrote:
The discovery concerning appellant's history of mental illness and treatment may go on in camera subject to the protective order and that rulings as tothe admissibility of particular items of evidence must await trial.
964F. 2d at 1329.
In essence, the Second Circuit took the position that there is no waiver when privileged matters are disclosed in discovery as long as they are not made public. Indeed, a witness may be held in contempt for asserting a privilege when the witness is otherwise protected from having a confidential matter publicly disclosed.
bar, it is evident that defense counsel could question Cheryl Coby during discovery about privileged communications without waiving the right to assert the privilege at trial. The fact that a pro-, tective order prevented public disclosure of confidential communications was sufficient to ensure appellant's ability to claim the husband-wife privilege. Accordingly, the trial court erred by finding a waiver of the privilege where the marital communications could not be made public.
C. Appellant Did Not Personally Waive the Husband-Wife Privileqe: Neither Did He Authorize His Lawyers to Waive It.
At all times during the proceedings, Appellant personally continued to assert the husband-wife privilege. Prior to his exwife's discovery deposition, he requested permission from the court to be present (R1146,1153-5,1746). The court ruled that Appellant could not be physically present at the discovery deposition; he could only be in a nearby room where counsel could consult with him
(R1146-7,1160-1). The court also rejected requests that Appellant have electronic access to the deposition and that he be made cocounsel in order to be present (R1162-4).
After the court's ruling that Appellant's counsel had waived the husband-wife privilege, Appellant moved rise to discharge his attorneys (R1386-7). In his motion, he speci fied that he did not consent to waive the privilege (R1386).
Under these circumstances, i t should be held that if counsel did impair the husband-wife privilege by deposing Cheryl Coby, the action did not bind Bolin personally because he never ratified his course1"s action. The decision of Schetter v. Schetter, 239 So. 2d 51 (Fla. 4th DCA 1370) is relevant here. In Schetter, the defendant's attorney tape recorded a conversation with the defendant and submitted the recording to a psychiatrist without the consent of the defendant. The psychiatrist then testified at a hearing, basing his opinion that the defendant was incompetent on the taped conversations. On appeal, the Fourth District reversed, holding that the lawyers adverse action in giving the tape to the psychiatrist did not waive the attorney-client privilege. Therefore, the defendant was entitled to bar the psychiatrist from testifying at the hearing.
If, as the trial court ruled, Appellant's counsel should have filed a motion to prohibit the State from elicit ing any confidential communications prior to taking the discovery deposition of Cheryl Coby (R1103), i t follows that counsel's elicit ing of confidential communications was adverse to Appellant. Accordingly, it should be held that Appellant did not waive his husband-wife privilege because his attorneys' action at the discovery deposition was neither authorized by him nor in his interest.
D. Harmless Error Analysis If the State cannot prove beyond a reasonable doubt that impermissible evidence did not contribute to the jury's verdict, the error is not harmless. State v. DiGuilio, 491 S o. 2d 1129 (Fla.
1386). Froper application of the test requires "a close exam ination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination a f the impermissible evidence which might have possibly influenced the jury verdict." - I d., 491 So. 2d at 1135.
is clear that Cheryl Coby was the State's star witness and that Bolin could not have been convicted without her testimony. Absent the marital communications, Coby would still have been permitted to testify to her observations of Appellant's conduct at the time surrounding the homicide. See, Kerlin V.
4 5 (Fla. 1377). However, without the verbal admissions Appellant allegedly made to his ex-wife, the observations themselves were only marginally incriminating as to the homicide of Natalie Holley.
For instance, Coby could properly testify that she and Bolin drank coffee in the parking lot of a Burger King restaurant facing the Church's Chicken outlet where the victim was employed (R560).
However, without Appellant's communication that "he was scoping the place out" (R564), the fact of drinking coffee in proximity to the victim's place of employment is practically irrevelant.
Similarly, Coby could properly testify to her observations when Bolin awakened her at home in the early morning hours. These observations were that Appellant was acting nervous (R5€€), that there was blood on his new tennis shoes (R566-7), and that he 0 dumped out the contents of a purse which did not belong to her
(R567-9). However, without Appellant's statement that the purse belonged to "the manager of the Church's Chicken" (R569), there is nothing t o connect the purse with the victim of this homicide.
Even the excursion where Coby accompanied Appellant and watched him wipe a car clean inside and out was only circumstantial evidence without the accompanying marital communications. Coby did not remember anything specific about the car; only that it "looked like an alder ear" (R572). While Balin's throwing his shoes and the purse out the car window is also some evidence of covering up a crime, there is no evident connection with this particular crime.
The same is true with regard to Bolin's thorough cleaning of the couple's Pontiac Grand Prix the following day (R579-80).
By contrast, the marital communications which Coby divulge were highly incriminating. Bolin allegedly confessed to his exwife that he "followed the manager of Church's Chicken and got her to pull over" (R572). Bolin said that his intention was to rob her of the restaurants cash receipt which he thought she would be carrying (R573). Bolin told Coby about a police officer stopping while he was with the victim (R573-4). Coby testified that Bolin said he took the victim to an orange grove and stabbed her to death
These marital communications were highly prejudicial to Appellant, particularly because they were corroborated by the other evidence. A reasonable juror might well question Deputy Valenti's ability to make an identification of Bolin 4 1/2yearsaftera routine encounter (R528). However, Coby's testimony that Bolin told her about the incident buttressed the deputy's credibility.
In short, the revealed marital communications transformed a weak case of circumstantial evidence against Appellant into a case where the jury had to convict unless they believed Coby was a total liar. If the marital communications were admitted in error, the error clearly contributed to the jury's verdict.
ISSUE I $
THE TRIAL COURT ERRED BY FAILING TO
CONDUCT A SUFFICIENT INQUIRY INTO
APPELLANT'S PRO SE MOTION TO DIS -
CHARGE COUNSEL.
After the trial judge had ruled that Appellant waived his spousal privilege, Appellant filed apro se "Motion to Discharge Counsel" (R1386-7). He stated that he was dis satisfied with his lawyers' performance (R1386). He stated that he had not intended to waive his spousal privilege and that his attorneys rendered ineffective assistance when they didso (R1386-7), A hearing on this motion was held April 12, 1'391 (R1114-34).
At this hearing, the judge questioned defense counsel as to whether they were aware of the husband-wife privilege in the Florida Evidence Code at the time they took Cheryl Coby's discovery deposition
(R1116-7). Both counsel said that they had researched the law before taking Coby's discovery deposition and were of the opinion that asking her questions about marital communications would not waive the husband-wife privilege (R1118-9). Counsel also stated that there was no tactical decision involved (R1127). I f, as the trial judge had found, defense counsel should have moved the court for an order precluding the State from delving into marital communications prior to taking the discovery deposition, counsel made a mistake by not following that procedure (R1128-9).
The trial judge then proceeded to rule, as follows:
Mr. Bolin, both Mr. Firmani and Mr.
O'Connor have been before this court on cases that do not involve your case, o r cases. I have found both attorneys to be very competent. Mr. O'Connor has years a f experience in handling first degree murder cases and Mr.
Firmani, I've already told you that in this Court's opinion, is a fine lawyer. Your motion to discharge-- THE DEFENDANT: Can I say something?
THE COURT: -- the Public Defender is denied.
THE DEFENDANT: So I can't say nothing?
THE COURT: Yes, you can say something.
I've denied your motion.
denying his motion t o discharge counsel, Bolin was deprived of the elementary due process right to be heard before a ruling was made. Furthermore, the trial court's handling of this motion did not com port with the procedure endorsed by this Court in Hardwick
v. State, 521 S o. 2d 1071 (Fla.), cert.den., 488U.S. 871 (1'388).
The J-Iardwick court wrote:
assigned by the defendant...the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether o r not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant. If reasonable cause for such belief appears, the court should make a finding to that effect on the record and appoint a substitute attorney who should be allowed adequate time to prepare for the defense. If no reasonable basis appears for a finding of ineffective representat ion, the trial court should so state on the record and advise the defendant that if he dis charges his original counsel the State may not thereafter be required to appoint a sub-- statute.
521 S o. 2d at 1074--5), quoting from Nelson v. State, 274So, 2d 256 at 258 - 9 (Fla. 4th DCA 1973).
the trial judge not only made no "sufficient inquiry of the defendant"; h e made no inquiry whatsoever. He forced Bolin to proceed with counsel who he had come to distrust. Above all, the court did not even clearly rule whether Bolin had received ineffective assistance of counsel.
When an indigent criminal defendant establishes adequate ground, he has a constitutional right to replacement of his courtappointed counsel. Capehart v. State, 583 S o. 2d LO09 at 1014 the procedure mandated by Hardwick and Nelaoq requires reversal.
(1984), Unlike the situation in Bowden v. State, 588 So. 2d 225 (Fla. (1991), cert.
Ct. 1596 (1392), where a majority of this Court found @ the inquiry "adequate", the inquiry at bar was inadequate. See alsQf Jon es v. State, 18 Fla. L. Weekly S 11 (Fla. December 17, 1992) (Justice Barkett, dissenting opinion at S 13). Appellant should now be granted anew trial.
ISSUE 111
THE TRIAL JUDGE ERRED BY FAILING TO
REQUIRE THE PROSECUTOR TO GIVE HIS
REASONS FOR EXERCISING PEREMPTORY
STRIKES AGAINST AFRICAN-AMERICAN
PROSPECTIVE JURORS.
During jury selection, the State used one of its peremptories to strike prospective juror Fellcia Lee (R462). Defense counsel objected, painted out that Ms. Lee was African-American, and asked the trial court to require the prosecutor togivea reason for the excusal (R462). The judge denied the defense request (R463).
Later, the State used another peremptory challenge to excuse prospective juror Linda Presley, also an African-American (R468).
Again, defense counsel objected and asked the court to inquire into the prosecutors reason for the strike (R468). The court ruled that the defense had not established a strong likelihood of racial bias in the exercise of the State's peremptories (R468-9). He did not require the prosecutor to give reasons.
Weekly S 124 (Fla. February 18, 1993), this Court held that a Neil 1 inquiry into reasons for exercise of a peremptory strike must be held whenever a party objects that a peremptory ha5 been used in a racially discriminatory manner. However, the Johans opinion also states that the holding is to be given prospective application only. Therefore, the case at bar must be analyzed within the frame work of "whether there was a showing of a 'strong likelihood' that the venire member was State v. Neil, 457 So. 2d 481 (Fla. 1984).
being challenged solely because of race." Joham, 18 Fla. L.
In this appeal, Appellant will abandon the objection at trial to the excusal of prospective juror Lee. However, the record shows no indication whatsoever that prospective juror Presley would not have been a fair and impartial juror. Ms, Presley said that she had been employed as a custodial by the University of South Florida for four years (R96). She was in favor of the death penalty (R96). She had seen a news flash on television about Bolin's upcoming trial, but had not formed an opinion about the case (R368- Although the record reflects that two African-Americans ultimately sat on Appellant's jury, even one racially motivated strike e violates both the Equal Protection Clause of the Fourteenth Amend-.
merit and the Florida Constitution, Art. I, sec. 16. Remolds v.
487U. S. 121'3 (1388). Any doubt about whether the object ing party has shown a likelihood of racial motivation in peremptory strikes should be resolved in favor of that party.
S ~ ~ P P Y5 2,2 So. 2d at 2 2; Tillman v. State, 522 So. 2d 14 at 17 (Fla. 1988).
This Court has found reversible error in situations similar to the one at bar where the trial judge refused to conduct a Neil Lee said that she was generally opposed to the death penalty, but could vote far it under same circumstances (R77-8).
inquiry. In Blackshear v. State, 521 So. 2d 1083 (Fla. l988>, this Court observed “no indication that any of the excluded blacks would be unfair or partial.” 521 S o. 2d at 1084. Again in Reynolds v, State, 576 So. 2d 1300 (Fla. 1991), reversible error was found where the minority prospective juror's answers did not suggest a valid ground for excusal and the trial court failed to require the prosecutor to give reasons for his peremptory strike. Since the prospective juror at bar, Linda Presley, also said nothing which would suggest a reason to excuse her, this Court should hold that the trial judge committed error by dec lining to require the prosecutor to give non-racial reasons.
Because Appellant was convicted by a jury which may have been selected under the taint of racial bias, he was deprived of rights under Article I, sections 2 and 16 of the Florida Constitution and the Equal Protection Clause of the Fourteenth Amendment, United States Constitution. He should now be granted a new trial.
ISSUE I V
THE TRIAL COURT ERRED BY GIVING THE
STATE'S SPECIALLY REQUESTED JURY
INSTRUCTION ON THE LAW OF ACCESSORY
AFTER THE FACT BECAUSE IT DID NOT
PROPERLY RELATE TO THE EVIDENCE AND
COULD BE CONSTRUED BY THE JURY ASA
COMMENT ON THE CREDIBILITY OF THE
STATE'S KEY WITNESS.
Over Appellant's objection, the trial judge agreed to give a special jury instruction which the State requested (R825-6,1585).
As modified by the trial judge, Appellant's jury was instructed:
Spouses, parents, grandparents, children or grandchildren of any person who has committed a felony cannot be prosecuted in Florida as an accessory after the fact for giving the a f - fender any aid or assistance with the intent of helping the offender cover up the crime or avoid 01: escape detection, arrest, trial or Punishment.
(R888-9,1574)
a crime for which Bolin could be convicted, the purpose of the instruction was evident. On defense cross--examinationof Cheryl Coby, the fall owing occurred:
Q. Were you not worried, madam, that you might be charged with an offense related to the death of Natalie Holley?
A. I don't know. The thought entered my mind, yes.
Q. So, did you not fear that you might be arrested for being an accessory after the fact atthe very least?
A. That's a possibility, yes.
Q. Would I be correct in saying that fact has passed through your mind on more than one occasion since July the 16th of 1990?
A. The thought of being arrested, you mean?
Q. Yes.
A. On more than one occasion, yes.
(R617) The State's reason for requesting the special jury instruction was to rebut the defense impeach ment of Cheryl Coby as it related to possible bias and motive in testifying for the prosecution.
However, this was not proper rebuttal. It is entirely immater ial whether Coby could have been prosecuted as an accessory after the fact; the point is that she was afraid of being prosecuted for her role in assisting Bolin to cover up evidence from the homicide and taking the money from the victim's purse. It is this fear of prosecution which supplies a motive for her to testify falsely. What exact charges she might face and whether her fears were realistic are beside the point.
Consequently, the special instruction read to the jury was irrelevant t o any fact in evidence. It was prejudicial to Appellant however, because the jury might have interpreted the instruction as a comment by the judge on the credibility of Cheryl Coby.
In effect, the court's instruction tended to negate the proper impeach ment of Coby's testimony.
This Court held in Butler v. State, 433So. 2d 451 (Fla. 1956) that trial judges should only give jury instructions which concern evidence received a t trial and that the instructions must not be misleading or confusing. This Court has also said:
It is fundamental that instructions should be confined to the law applicable to the controversy. Abstract instructions on questions of law not applicable should nat be given by a trial court.
719 (Fla. 1350). The instruction at bar clearly falls within the category prescribed b y these deci - sions. Jury instructions pertaining to crimes which were unrelated to the evidence or confusing have been the basis for reversal in such decisions as Griffin v. State, 370 S o. 2d 860 (Fla. 1st DCA 1979) (instruction on possession of stolen property) and Doyle v, State, 483 So. 2d S9 (Fla. 4th DCA 1986) (altered instruction on third degree murder).
a This Court has also found error where the trial court's instruction can be construed as a comment on the evidence. In Whitfield v, State, 452 So. 2d 548 (Fla. 1984), this Court reversed a conviction stating:
Especially in a criminal prosecution, the trial court should take great care not to intimate to the jury the court's opinion as to the weight, character, or credibility of any evidence adduced.
452So. 2d at 459. Accord, Fenelon v. State, 594Sa. 2d 292 (Fla.
(1992). The prejudice caused by a judge's comment on the evidence was explained by the Third District in Hamilton v. State, 109 5. 0.
2d 422 (Fla. 3d DCA 1959):
The dominant position occupied by a judge in the trial of a cause before a jury is such that his remarks or comments, especially as they relate to the proceedings before him, over shadow those of the litigant, witnesses and other court officers. Where such comment expresses or tends t o express the judge's view as to the weight of the evidence, the credibility of a witness, or the guilt of an accused, i t thereby destroy the impartiality of the trial t o which the litigant o r accused is entity 1 ed.
Appellant's trial was impaired by the judge's instruction as accessory after the fact. Because the trial was essentially a contest between Coby's accusation of Bolin and his version of the events, the error cannot be harmless.
Appellant should be granted a new trial.
ISSUE V
THE TRIAL COURT ERRED BY DENYING
APPELLANT'S CHALLENGE FOR CAUSE TO
PROSPECTIVE JUROR LOPEZ.
Prospective juror Lopez was initially questioned during voir dire about his attitude towards capital punishment. He stated, ''I was raised in believing that an eye for an eye, tooth fora toath, a life for a life'' (R453). Defense counsel later asked prospective juror Lopez:
MR. O'CONNOR: Now, as far as things in mitigation, Mr. Lopez, would you be interested in knowledge of the defendant's past and his background in making a determination about the appropriate ness of the sentence, should you convict him for it?
MR. LOPEZ: I don't believe so.
MR. O'CONNOR: Excuse me?
MR. LOPEZ: I don't think s o.
MR. O'CONNOR: I'm sorry, sir, I didn't hear you.
M R. LOPEZ: No.
Defense counsel then moved to excuse Mr. Lopez for cause on the ground that he would not consider Appellant's background as possible mitigation (R465-6). The court denied Appellant's challenge for cause (R467).
The initial inquiry in any jury selection issue on appeal is whether the issue was properly preserved. At bar, Appellant ex-- haunted his ten peremptory challenges, one of which was used to excuse prospective juror Lopez (R467,469-70). Defense counsel requested an additional peremptory challenge (R470). Counsel further stated that if he had an additional peremptory, he would excuse juror McCombs (R470). After hearing argument (R470-3), the court declined to grant any additional peremptory challenges
Appellant followed the procedure which this Court required in Trotter v. State, 576 So. 2d 691 at 693 (Fla. 1930) (defendant must show that peremptories were exhausted and that an objection able juror sat on his jury). At bar, Appellant objected to having juror McCombs on his jury, but McCombs was seated (R470-,1,478).
Consequently, Appellant did all that was required to preserve his claim that denial of his challenge for cause was error. Bot ter;
merits of the claim, the United States Supreme Court has recently made clear that a capital defendant's Sixth and Fourteenth Amendment rights to trial by an impartial jury are violated if a juror is seated who would vote to impose a death sentence regardless of whatever mitigating evidence might be presented. Morsan v. Illinois,
2d 492 (1'392). The Court declared that Any juror who would impose death regardless of the facts and circumstances of conviction cannot follow the law.
506. Basically, the Morsan decision applied the (capital sentencer may not refuse to consider any relevant miti-- (Florida penalty jury must be instructed to consider evidence of non statutory mitigating circumstances) to the Sixth Amendment requirement of juror impartiality.
grounds of lack of impartiality should be granted is that set forth by this Court in Sinqer v. State, 109 S o. 2d 7 (Fla. 1959). The Sinser court wrote:
any juror's possessing the state of mind which will enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial he should be excused....
109 So. 2d at 2 3 - 4. Accord, Hill v. State, 477 So. 2d 553 (Fla.
(1985).
bar, the statement of prospective juror Lopez that his basic attitude was "an eye for an eye" combined with his statement that he wouldn't consider the background of a defendant when determine ing the appropriate sentence to recommend was sufficient to raise a reasonable doubt about his impartiality. When the trial judge noted that Mr. Lopez did not say "if he's told by the Court that he must consider it [the defendant's background], that he would not follow the law" (R466), the Sinser test was not applied.
If Appellant had shown that prospective juror Lopez would have refused to follow the court's instruction, he would have conclusively proved that Lopez was not an impartial juror. The Sinaer test requires only a "reasonable doubt" that the prospective juror lacks impartiality.
When presented with similar situations in the past, this Court has found reversible error. A prospective juror in Hill v. State, 477 So. 2d 553 (Fla. 1385) admitted that he was inclined toward recommending a death sentence if the defendant was found guilty of first-degree murder. In holding that this prospective juror should have been excused for cause, this Court stated that the trial judge "failed to apply the rules of law set forth in Sinser."
Even more on point with the case at bar is this Court's deci-- sion in Brv ant. State, 601 S o. 2d 529 (Fla. 19'32). There, eleven prospective jurors agreed that if the defendant were found guilty of premeditated murder, they would "pretty much automatically" vote to impose death. In denying the defendant's challenge for cause to these jurors, the trial judge stated that defense counsel did not "explain to them their options under mitigating circumstances. ' I 601 S o. 2d at 532. On appeal, this Court held that "it is not defense counsel's obligation to rehabilitated a juror who has responded to questions in a manner that would sustain a challenge for cause." 601 So. 2d a t 532. Rather the burden is on the prosecutor or the judge "to make sure the prospective juror can be an impartial member of the jury." 601 S o. 2d at 532. Since there was no rehabilitation, the J&ya-& court reversed for a new penalty proceeding.
the judge to attempt to rehabilitated prospective juror Lopez before denying Appellant's challenge for cause when the prospective juror said that he wouldn't be interest-.
ed in considering the defendant's background with regard t o the penalty recommendation. I t was up to the prosecutor or the judge t o inquire whether Mr. Lopez would follow the court's instruction t o consider nonstatutowy mitigating evidence despite theprospec - tive juror's disinclination ta do so. Since this did not occur, Appellant's challenge for cause should have been granted. His death sentence should now be vacated and a new penalty proceeding ordered.
CONCLUSION
Based upon the foregoing arguments, reasoning and authorities, Oscar Ray Bolin, Jr. Appellant, respectfully requests this Court to grant him relief as follows:
As t o Issues I - I V -- remand for a new trial.
As to Issue V - vacation of death sentence and remand fora new penalty proceeding before a new jury.
Respectfully submitted, JAMES MARION MOORMAN DOUGL#S S. CONNOR PUBLIC DEFENDER Assistant Public Defender TENTH JUDICIAL CIRCUIT Florida Bar Number 350141
(813) 534 - 4200 P. 0. BOX 9000 - Drawer PD Bartow, FL 33830
APPENDIX
PAGE NO.
1. Findings in Support of Death Sentence
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT OF THE
STATE OF FLORIDA, IN AND FOR HILLSBOROUGH COUNTY
3 CRIMINAL JUSTICE D~VISION
STATE OF FLORIDA
vs.
OSCAR RAY BOLIN, JR., 1 r>: r:
if,.3
FINDINGS IN SUPPORT OF DEATIf SENTENCE. *" c= The following Statutory Aggravating Circumstances were proved beyond a reasonable doubt:
1. The defendant has been previously convicted of another felony involving the use o r threat of violence to some person as evidenced by his stipulation that he was convicted of the crimes of Kidnapping and Rape in the State of Ohio back in 1988.
sentenced was committed for financial gain as evidenced by his conviction of Robbery with a Weapon under Count Two of the Indictment.
evidenced by his conviction of Kidnapping under count Three of the Indictment.
The following Statutory and Non-statutory Mitigating Circumstances were properly established.
mental disturbance as evidenced by the expert testimony of Dr. Robert M.
2. Any other aspect of the defendant's character or background as evidenced by the testimony of his mother and sister to the effect that during his childhood he was subjected to a nightmarish home environment and was physically and mentally abused by his father.
The jury's 11 to 1 recommendation was reasonable since the Aggravating Circumstances outweigh the Mitigating Circumstances to such an extent that the defendant deserves the death penalty.
CERTIFICATE OF SERVICE
certify that a copy has been mailed to Robert Krauss, Suite 7 0 this 2002 N. Lois Ave., Tampa, FL 33607, (813) 573-3730, on day of April, 1993.
Respectfully submitted,
PUBLIC DEFENDER Assistant Public: Defender TENTH JUDICIAL CIRCUIT Florida Bar Number 350141
(513) 534 - 4200 P. 0. BOX 9000 -- Drawer PD Bartow, FL 33830
FILED StD J. WHITE IN THESUPREMECOURT OF FLORIDA OCT 8 t9p3 CLERK, 3U/%fQl: COUa
OSCAR RAYBOLIN JR..
By Chief Deputy Clerk Appellant, VS. Case No. 78.468
STATE OF FLORIDA,
Appellee.
APPEAL FROM THE CIRCUIT COURT
IN ANDFORHILLSBOROUGH COUNTY
STATE OF FLORIDA
REPLY BRIEF OF APPELLANT
JAMES MARION MOORMAN
PUBLIC DEFENDER
TENTH JUDICIAL CIRCUIT
ASSISTANT PUBLIC DEFENDER
FLORIDA BAR NUMBER 350141
Public Defender'sOffice Polk County Courthouse
P. 0. Box 9000--Drawer P D Bartow, F L 33830
(813) 534-4200
ATTORNEYS FOR APPELLANT
TOPICAL INDEX TO BRIEF
PAGE NO.
ISSUE I
THE TRIAL COURT ERRED BY RULING THAT
LEGE BY FAILING TO PREVENT HIS EX-
WIFE, A STATE WITNESS, FROM REPEAT-
ING MARITAL COMMUNICATIONS DURING A
DISCOVERY DEPOSITION. ADMISSION AT
ISSUE I1
THE TRIAL COURT ERRED BY FAILING TO
CONDUCT A SUFFICIENT INQUIRY INTO
APPELLANT'S PRO SE MOTION TO DIS-
CHARGE COUNSEL.
ISSUE I11
THE TRIAL JUDGE ERRED BY FAILING TO
REQUIRE THE PROSECUTOR TO GIVE HIS
REASONS FOR EXERCISING PEREMPTORY
STRIKES AGAINST AFRICAN-AMERICAN
ISSUE IV
THE TRIAL COURT ERRED BY GIVING THE
STATE'S SPECIALLY REQUESTED JURY
INSTRUCTION ON THE LAW OF ACCESSORY
AFTER THE FACT BECAUSE IT DID NOT
PROPERLY RELATE TO THE EVIDENCE AND
COULD BE CONSTRUED BY THE JURY AS A
COMMENT ON THE CREDIBILITY OF THE
TOPICAL INDEX TO BRIEF (continued) ISSUE V
THE TRIAL COURT ERRED BY DENYING
APPELLANT'S CHALLENGE FOR CAUSE TO
TABLE OF CITATIONS
CASES PAGE N O.
Bryant v. State, Davenport. State, Davis. Wainwriqht, 342F.Supp. 3 9 (M. D. Fla. 1971). affirmed, 464F.2d 1405 (5their. 1972) Fraser v. United States.
Cir. 1944) Pennv. State, 574 So. 2d 1079 (Fla. (1991) Perkins v. State, 585So. 2 d 390 (Fla. 1st DCA (1991) Saenzv. Alexander, 584 So. 2d 1061 (Fla. 1st DCA (1991) State. DelGaudio, 445So. 2 d 605 (Fla. 3 d DCA). rev. denied, 453 So.
State v. Neil, State. Slappy, Sullivan v. Louisiana, Tibado v. Brees, Tucker v. State, Valentine v. State, Yates v. Evatt, iii TABLE OF CITATIONS (continued
OTHER AUTHORITIES
Fla. R. Crim. P. 3.220 3. 4
STATEMENT OF THE CASE
Appellant will rely upon the Statement o f the Case a s presented in his initial brief.
STATEMENT OF THE FACTS
Appellant will rely upon the Statement of the Facts a s presented in his initial brief.
SUMMARY OF THE ARGUMENT
Contrary to Appellee's assertion. Bolin did not waive his husband/wife privilege. He did not personally disclose any marital communications. Nor did the deposition of Cheryl Coby amount to a consent to disclosure of marital communications because the deposition never became public record. Moreover. there is no authority far the State's position that a criminal defendant must elect between preserving his privilege and pursuing his right to discovery. In further argument that any error in admitting marital communications was harmless. the State utilized an erroneous standard for harmless error.
The trial court's failure to inquire of the defendant as well as his court-appointed counsel when ruling on Appellant‘ motion to discharge counsel was reversible error.
A case decided by this Court: since Appellant‘s initial brief is directly on point in support of Appellant's argument that the trial court's failure to require the prosecutor to give a nonracial reason for exercise of a peremptory strike against pro spective juror Presley was reversible error.
Prospective juror Lopez should have been excluded for cause because neither the prosecutor nor the judge attempted to rehabilitated him after he stated that he would not consider the defendant's character and background in mitigation when recommending a sentence.
ARGUMENT
ISSUE I
THE TRIAL COURT ERRED BY RULINGTHAT
LEGE BY FAILING TO PREVENT HIS EX-
WIFE, A STATE WITNESS, FROM REPEAT-
ING MARITAL COMMUNICATIONS DURING A
DISCOVERY DEPOSITION. ADMISSION A T
a The State has conceded that Cheryl Coby could not have testified at trial to the marital communications between her and Appellant unless Bolin took some action which amounted to a waiver.
Brief of Appellee, p. 10. The State contends that such a waiver took place when Bolin chose todepose Coby and elicit marital communications at the deposition. x.
waive the husband/wife privilege, the holder must either (a) make a voluntary disclosure; or (b) consent "to disclosure of any significant part of the matter or communication." $98.507, Florida Evidence Code.
A t bar, Bolin never personally disclosed any marital communication. Therefore, there was no waiver by voluntary disclosure.
Accordingly. authorities cited by the State such as Tibado v.
. So. 2d 61 (Fla. 2d DCA 1968); Fraser v. United States.
on point. In all of them.
the defendant personally disclosed privileged communications or made admissions which he knew would be conveyed to third persons.
The tougher question is whether Appellant con sented to disclosure of the marital communications by deposing Cheryl Coby. If the deposition had become public record. Tucker v. State, 484 So.
2d 1299 (Fla. 4th DCA 1986) suggests that a voluntary waiver would have occurred. A t bar, however. Coby's deposition never became public and remains a sealed portion of the appellate record (R545- Additionally, there is no authority for the State's position that a criminal defendant must elect between having discovery under Fla. R. Crim. P. 3.220 or protecting privileged communications.
Rather. Rule 3.220(b)(l)(c) obligates the prosecutor to disclose:
any oral statements made by the accused. including a copy of any statements contained in police reports or report summaries, together with the name and address of each witness to the statements;
Following up the alleged oral statements made by the defendant by deposing the witness who claimed to hear the statements is a Appellee's brief notes that the trial judge said at one point that he had not: ordered the deposition sealed from public scrutiny (R1089). Brief of Appellee. p. 13. Appellant contends that the earlier protective order precluded making the deposition public record. In any case. Coby's deposition was never made public.
further substantial right granted to a defendant. Fla. R. Crim. P.
3.220(h). A waiver is not voluntary when the defendant is forced to either waive his privilege or relinquish a substantial right.
m, Davis v. Wainwriqht. 342 F.Supp. 39 (M.D. Fla, 1971), affirmed. 464 F.2d 1405 (5th Cir. 1972). Compare, State v.
45 (Fla. 1984) (defendant not required to waive right: to speedy trial in order to compel State to fulfill its discovery obligation).
Finally, the State argues that any error in admitting the marital communications is harmless because the remaining evidence was "sufficient to support the judgment and sentence." Brief of Appellee, p.17. This is not the correct standard of harmless error review. As the United States Supreme Court recently clarified in Sullivan v. Louisiana. 124L. Ed. 2d 182 (1993). the question is not what effect the error might be expected to have on a hypothetical '"reasonable jury," but its effect upon the guilty verdict in the instant case. The reviewing court must look "to the basis on which 'the jury actually rested its verdict.'" 124 L. Ed. 2d at 189, quoting from Yates v. Evatt, 114 L. Ed. 2d 432 at 449 (1991).
the jury clearly rested its verdict of guilt to first degree murder on Coby's testimony that her ex-husband admitted killing "the manager of Church's Chicken" and describing how he did it. Without the marital communications, only a weak case of circumstantial evidence could have been presented. The error cannot be harmless.
ISSUE I1
THE TRIAL COURT ERRED BY FAILING TO
CONDUCT A SUFFICIENT INQUIRY INTO
APPELLANT'S PRO SE MOTION TO DIS-
CHARGE COUNSEL.
The State misapprehends Appellant's argument by asserting that Bolin did not prove his counsel was ineffective at the pretrial hearing. This is not the issue. Rather. Appellant's complaint concerns procedural due process because he was not allowed to present his reasons for requesting that counsel be discharged before the trial court denied his motion.
Before a trial judge can rule on a claim of ineffective ness.
he must examine both court-appointed counsel and the defendant.
Perkins v. State. 585 So. 2d 390 (Fla. 1st DCA 1991); Davenport v.
a State. 596 S o. 2d 9 2 (Fla. 1st DCA 1992).
do s o at bar mandates reversal fora new trial.
The court's failure to
ISSUE I11
THE TRIAL JUDGE ERRED BY FAILING TO
REQUIRE THE PROSECUTOR TO GIVE HIS
REASONS FOR EXERCISING PEREMPTORY
STRIKES AGAINST AFRICAN-AMERICAN
PROSPECTIVE JURORS.
Since Appellant filed his initial brief. this Court has decided Valentine v. State, 616 So. 2d 971 (Fla. 1993), Valentine is directly on point here; even the trial judge is the same.
The State evidently agrees that "nothing objection able appears in the record about [prospective juror] Presley." Brief of Appellee, p. 2 8. Neither did the trial judge put any observation about this excluded juror on the record which would rebut the defense contention that the excusal was racially motivated. In Valentine.
this Court said unless a court can cite specific circumstances in the record that eliminate all question of discrimination, it must conduct an inquiry.
487 U. S. 1219 (1988). The trial court's failure at bar either to inquire about the prosecutors reason for striking prospective juror Presley or to express a non-racial reason for the excusal on the record requires reversal for a new trial.
Appellee argues that "the trial judge was in a much better position to determine whether the challenge was racially motivated." Briefof Appellee, p.28. No doubt this is true. However, without anything on the record to suggest why the State exercised a peremptory strike on prospective juror Presley, there is nothing for an appellate court to review. And this Court has emphasized from the start in State v. Neil. 457 So. 2 d 481 (Fla. 1984) that appellate review is part of the process in ensuing non-discriminatory exercise of peremptory strikes.
Accordingly, Bolin's convictions and sentences should be vacated and a new trial ordered.
ISSUE IV
THE TRIAL COURT ERRED BY GIVING THE
STATE'S SPECIALLY REQUESTED JURY
INSTRUCTION O N THE LAW OF ACCESSORY
AFTER THE FACT BECAUSE IT DID NOT
PROPERLY RELATE TO THE EVIDENCE AND
COULD BE CONSTRUED BY THE JURY AS A
COMMENT ON THE CREDIBILITY OF THE
STATE'S KEY WITNESS.
Appellant will rely upon his argument as presented in his initial brief.
ISSUE V
THE TRIAL COURT ERRED BY DENYING
APPELLANT'S CHALLENGE FOR CAUSE TO
PROSPECTIVE JUROR LOPEZ.
The State contends in its brief that this issue is controlled by Penn v. State, 574So. 2d 1079 (Fla. 1991). Brief of Appellee, p.33. However, Penn presented a much different factual scenario because the prospective jurors ultimately demonstrated their competency by stating that they would base their decisions on the evidence and instructions.
1081. A t bar, prospective juror Lopez said that he wouldn't consider the defendant's background as a factor in recommending a sentence (R454-5). Lopez was never asked if he could follow the court's instruction if told that he should weigh character evidence in mitigation.
A simple inquiry by either the trial judge or the prosecutor could have clarified whether prospective juror Lopez could be rehabilitated. Because prospective juror Lopez was never asked the question, we are left with his assertion that he wouldn't consider the defendant's background in recommending an appropriate sentence.
is controlled by this Court's decision in Bryant v. State. 601 So. 2d 529 (Fla. 1992) where this Court held it was not "defense counsel's obligation t o rehabilitated a juror who has responded to questions in a manner that would sustain a challenge for cause.'' 601 So. 2d at 532. This burden belongs to the prosecutor o r judge "to make sure the prospective juror can be an impartial member
Because prospective juror Lopez was never rehabilitated. the case at bar must be reversed, like Bryant, fora new penalty trial.
CONCLUSION
Appellant will rely upon his conclusion as presented in his initial brief.
Respectfully submitted,
Assistant Public Defender Florida Bar Number 350141
P. 0. Box 9000 - Drawer PD Bartow, FL 33830
CERTIFICATE OF SERVICE
Icertify chat a copy has been mailed to Candance Sabella, 2002 N. Lois Ave.. Tampa, F L 33607, (813) 873-4730, on this day of October, 1993.
Respectfully submitted, JAMES MARIONMOORMANPublic Defender Assistant Public Defender TenthJudicial Circuit Florida Bar Number 350141 (813) 534-4200 P, 0. Box 9000 - Drawer P D Bartow, F L 33830
OSCAR RAY BOLIN, JR., Appellant, STATE OF FLORIDA, Appellee.
[ April 21, 19941
PER CURIAM.
Oscar Ray Bolin, Jr., appeals his conviction of firstdegree murder and sentence of death. We have jurisdiction pursuant to article V, section 3 (b) (1), Florida Constitution.
Because of reversible error in the admission of evidence, we remand for a new trial.
On the morning of January 25, 1986, a jogger found the body of a Tampa restaurant worker in the woods near his home.
The woman's abandoned car was found more than five miles from the body. A deputy ran a license tag check on one of two cars parked on the same corner the previous evening and discovered the car was registered to Oscar and Cheryl Bolin. The murder investigation stalked, however, until July 1990. Then, on a tip from Danny Coby, Indiana police interviewed his wife, the former Cheryl Bolin, about the killing. After that interview, the state indicted and tried Bolin for first-degree murder, armed robbery, and kidnapping.
Over objection Cheryl Coby testified that she was with Bolin when he llscoped out" the restaurant, that they returned home where she fell asleep, that Bolin awakened her around 2 a.m.
killed the victim, and that she went with him to clean up the victim's car, after which he threw away his blood-stained tennis shoes and the victim's purse.
The jury convicted Bolin as charged and recommended that he be sentenced to death, which the trial court did.
As his first point on appeal, Bolin argues that the trial court erred in admitting into evidence statements made by Bolin to his wife predicated on a ruling that Bolin waived his spousal privilege by taking his ex-wife's discovery deposition. We agree with Bo1in.l The spousal privilege is modified in section 90.504, Florida Statutes (1991), and provides, in pertinent part, as follows:
a privilege during and after the marital relationship to refuse to disclose, and to prevent another from dis closing, communications Due to our resolution of this issue, we do not address the other issues raised on appeal.
which were intended to be made in confidence between the spouse while they were husband and wife.
Cheryl Coby disclosed statements Bolin made to her in her interviews with police, during her discovery deposition taken by Bolin and her deposition to perpetuated testimony taken by the state,' and at trial. The defense objected both before and at trial that Mrs. Coby could not relate Bolin's statements because the spousal privilege had not been waived. The trial court, however, agreed with the state that questioning her about Bolin's statements during the discovery deposition, even though that deposition was kept confidential, constituted a waiver and allowed the state to introduce those statements through his exwife's testimony at trial.
first impression because neither we nor the parties have found any case law that is directly on point. An analogous situation exists, however, with the testimonial privilege set out in the dead man's statute, section 90.602, Florida Statutes (1991).3 Numerous Florida Because of Mrs. Coby's ill health, the trial court allowed the deposition to perpetuated her testimony. The state never used that deposition because she testified at trial.
Subsection (1) of this statute reads as follows:
person interested in an action or proceeding against the personal representative, her at law, assigned, legatee, devi see, or survivor of a deceased person, or against the assigned, committee, or guardian of a mentally incompetent person, shall be examined as a witness regarding any oral communication between the interested person and the person who is deceased or mentally incompetent at the time of the examination.
courts have considered the effect of taking and using discovery depositions on the privilege in the dead man's statute and have uniformly concluded that, while using a discovery deposition waives the privilege, merely taking such a deposition does not.
(Fla. 2d DCA 1984); Harrell v. Florida First National Bank, 354 So. 2d 420 (Fla. 1st DCA 1978); In re Estate of Bechtel, 348 So.
2d 927 (Fla. 2d DCA 1977), cert. denied, 360 So. 2d 1247 (Fla.
(1978); Bordacs v. Kimmel, 139 So. 2d 506 (Fla. 3d DCA 1962).
This is the appropriate rule to apply in connection with the spousal privilege. A discovery deposition is designed to elicit what a witness knows. The defense needs to ascertain what a spouse might know, but, if the privilege will be waived by merely asking, engaging i n discovery can become extremely A defendant can, of course, waive the privilege after engaging in discovery, but a waiver then would b e knowing.
In the instant case Bolin and his attorneys tried to maintain the spousal privilege at every step of the proceedings.
This can be risky for attorneys as well as their clients.
attorney is deemed to have waived the clients privilege by engaging in discovery, that attorney might well be charged with being ineffective. The same is true, however, if the attorney fore goes discovery to maintain the privilege and then i s surprised at trial by something that should have been discovered beforehand. Such a catch-22 situation will be avoided by our decision in this case.
We reject the trial courtls conclusion that taking Mrs. Coby's deposition wa ved t at privilege.
wife were an integral part of the state's case. While it may be that sufficient evidence apart from those statements existed to convict Bolin, we cannot say that they did not play a significant role in the jury's determination. Harmless error in their admission cannot be found. Therefore, w e vacated Bolin's sentence, reverse his convictions, and remand for a new trial.
It is so ordered.
BAARKETT, C. J., and OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
FILED, DETERMINED.
An Appea.1 from the Circuit Court in and for Hillsborough County,
Wm. Graybill, Judge - Case No. 90-11832CFAWS James Marion Moorman, Public Defender and Douglas S. Connor, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Appellant Robert A. Butterworth, Attorney General and Candance M. Sabella, Assistant Attorney General, Tampa, Florida, for Appellee
I N THE SUPREME COURT OF FLORIDA
FEB 28 1994
OSCAR RAY BOLIN, JR.
Appellant,
Appellee.
APPEAL FROM THE CIRCUITCOURT
I N AND FOR PASCO COUNTY
STATE OF FLORIDA
INITIAL BRIEF OF APPELLANT
JAMES MARION MOORMAN
PUBLIC DEFENDER
TENTH JUDICIAL CIRCUIT
ASSISTANT PUBLIC DEFENDER
FLORIDA BAR NUMBER 350141
Public Defender'sOffice Polk County Courthouse
P. 0. Box 9000--Drawer PD Bartow, F L 33830
(813) 534-4200
ATTORNEYS FOR APPELLANT
TOPICAL INDEX TO BRIEF
PAGE NO.
PRELIMINARY STATEMENT
ISSUE I
APPELLANT WAS DENIED DUE PROCESS OF
LAW WHEN THE STATE OBTAINED A FAVOR-
ABLE PRETRIAL RULING ADMITTING COL-
TIES CONNECTING THE COLLATERAL
ISSUE I1
APPELLANT WAS DENIED A FAIR TRIAL ON
THIS PARTICULAR CHARGE AND DUE PRO-
CESS OF LAW BECAUSE THE PROSECUTION
WAS PERMITTED TO MAKE THE COLLATERAL
CRIMES EVIDENCE A FEATURE OF THE
ISSUE 111
THE COLLATERAL CRIME EVIDENCE SHOULD
NOT HAVE BEEN ADMITTED BECAUSE THE
HOMICIDES OF NATALIE HOLLEY AND
STEPHANIE COLLINS WERE NOT SUFFI-
CIENTLY SIMILAR TO THE CASE AT BAR
AS TO BE ADMISSIBLE ON THE ISSUE OF
TOPICAL INDEX TO BRIEF (continued)
ISSUE IV
THE TRIAL JUDGE ERRED BY FAILING TO
CONDUCT ANY INQUIRY WHATSOEVER INTO
POSSIBLE JUROR MISCONDUCT WHEN AP-
PELLANT'S REQUESTS FOR INQUIRY HAD A
ISSUE V
THE TRIAL COURT ERRED BY FOLLOWING
THE RULING FROM APPELLANT'S PRIOR
TRIAL IN HILLSBOROUGH COUNTY THAT
LEGE, ADMISSION OF THE MARITAL COM-
ISSUE VI
THE TRIAL COURT ERRED BY ALLOWING
SERGEANT KLLNG TO TESTIFY IN PENALTY
PHASE ABOUT AN INCIDENT WHICH PHILIP
BOLIN RELATED TO HIM BECAUSE APPEL-
LANT WAS DENIED HIS SIXTH AMENDMENT
RIGHT TO CONFRONTATION OF ADVERSE
ISSUE VII
THE SENTENCING JUDGE ERRED BY FIND-
ING THAT THE COLD, CALCULATED AND
PREMEDITATED AGGRAVATING CIRCUM-
THE TRIAL JUDGE ERRED BY INSTRUCTING
THE PENALTY JURY THAT ESCAPE IS A
VIOLENT FELONY QUALIFYING FOR THE
TOPICAL INDEX TO BRIEF (continued)
APPENDIX
1. Order Conditionally Granting State's Motion toAdmit Williams' Rule Evidence
2. Findings in SupportofSentence of Death
CERTIFICATE OF SERVICE
iii
TABLE OF CITATIONS
CASES PAGE NO.
Crump v. State, 622 So. 2d 963 (Fla. 1993) 35. 53. 54 Denson v. State, Derrickv. State.
Giqliov. United States.
Gore v. State.
Hallv. State, Heurins v. State, 513 S o. 2 d 122 (Fla. 1987) 3s Hillv. State.
TABLE OF CITATIONS (continued) Johnson. State,
(Fla. 1985) 55, 5 6 Jonesv. State, Kruse v. State, Livinqston v. State, Lonq v. State, Mann v. State, Martinez v. UnitedStates, Matera v. State, Matthews. State, Miller v. Pate, Napue v. Illinois, Ornelusv. State, Owen v. State, Pace v. State, Peek. State,
488 So. 2d 5 2 (Fla. 1986) 3 2, 34 People v. Feldman, People v. Pelchat.
Power v. State.
Randolnh v. State, Robinson v. State.
Rosers v. State, Rutherford v. State, State v. DiGuilio, State v. Lee, 531 So. 2 d 133 (Fla. 1988) 26. 36 State v. Pierce.
State v. Williams.
Sweet v. State, Trotter v. State.
United States. Resko, Walton v. State.
TABLE OF CITATIONS (continued) Waterhouse v. State, Williams v. State, Williams. State, Winebrenner v. United States.
OTHER AUTHORITIES
vii
', PRELIMINARY STATEMENT
The record o n appeal consists of documents filed with the clerk of court. pretrial and post trial proceedings which are numbered 00001 - 00724 followed by transcripts of the trial, numbered 1 - 1229. Referencestothe documents in the clerk's file, the pretrial and posttrialproceedingswill be designated " R ". followed bathe appropriate page number. References to thetrial transcripts will be designated "T", followed by the appropriate page number.
STATEMENT OF THE CASE
Pasco County grand jury returned an indictment on February
11. 1991 charging Oscar Ray Bolin, Jr.. Appellant, with murder in the first degree (Rl-2). Prior to trial. the State gave notice of an intent to introduce Williams Rule evidence at trial (R31). A hearing on the State's motion to admit Williams Rule evidence was held before Circuit Judge Stanley Mills on June 12. 1992 (R267- 337). On June 29, 1992, the trial court entered an order conditionally granting the motion
The State also moved for an order to perpetuated the testimony of a witness, Cheryl Coby, who had been married to Bolin at the time when the homicide took place (R79). Ata hearing held August 17, 1992, the court ruled that the State could take a deposition to perpetuated Coby's testimony (R227). The court also ordered that Coby's original deposition be sealed in the court file (R228). On August 31. 1992, the deposition of Coby (now Cheryl Haffner) was taken with the trial judge present (R401-469). Defense counsel objected to the portion of the testimony which contained matter subject to the husbandlwife evidentiary privilege (R456-7). The court noted that a judge in Hillsborough County had previously ruled that Bolin waived his spousal privilege (R459-60). In accord with the prior ruling, the court found that the privilege had been waived and could not be reasserted at this point (R465-6). The deposition was ordered sealed to prevent public dissemination
Trial was held before Circuit Judge Stanley Mills and a jury on October 5 through 14, 1992 (R472-675, T1-1229). During jury selection, Appellant moved fora mistrial on the ground that the prosecutor repeatedly mentioned that Appellant had murdered other young girls (R583-4). The trial judge denied the motion for mistrial and noted that the collateral crime evidence would be admissible subject to the State's connecting the cases to Appellant
(R586-7). At trial, defense counsel renewed his objection to Williams Rule evidence every time that the State offered it (T187, 686, 747). When defense counsel moved for judgment of acquittal following the State's case, he also moved for a mistrial based on dis similarity of the collateral crime evidence and because it became a feature of the case (T760-1). The trial court denied both motions (T760-1. 766).
During the trial proceedings, the jury submitted four written questions to the trial judge (T427-8). After a discussion of the questions, defense counsel moved fora mistrial an the basis that the questions indicated that the jury was already deliberating before all of the evidence had been received (T432). The court denied the motion for mistrial and also declined to question the jurors about their conduct (T432). Later, after both the State and defense rested their cases. the judge allowed the jury to g o home for the weekend (T759, 762-3). When the jury reassembled on Monday, Appellant requested that the court inquire whether any o f the jurors had heard or read about the case over the weekend (T790). The court declined to doso in absence of any evidence o f improper juror conduct (T791).
The jury returned a verdict o f guilt to first degree murder as charged (T855, R119).
In the subsequent penalty trial, a police detective was permitted, over defense objections to hearsay and confrontation clause violation, to testify about an incident that Appellant's stepbrother, Philip Bolin, had told him about (T967 - 7 0). The jury recommended that Bolin be sentenced to death (R157, T1218).
On October 30, 1992, Judge Mills conducted sentencing pro - ceedings (R676-707). Appellant's motion for new trial was heard and denied (R174-6, 678-98). After hearing argument, the court recessed to prepare a written sentencing order (R704). A sentence of death was imposed (R191-2, 705). In his written "Findings in Support of Sentence of Death ", the judge found three aggravating circumstances proved (prior violent felony, HAC, and CCP) (R178-80, see Appendix). The court considered three statutory and four nonstatutory mitigating circumstances, but gave each of them little weight (R181 - 3, see Appendix).
Appellant filed a timely Notice of Appeal on November 3, 1992 I (R190). Jurisdiction lies in this Court pursuant to Article V, section 3 (b) (l) Fla. Const. and Fla. R. App.
STATEMENT OF THE FACTS
GUILT OR INNOCENCE PHASE
Sometime after midnight on December 5, 1986. Philip Bolin answered a knock on the door and found his step brother Oscar Ray Bolin. Appellant. at the door step (T458). Appellant asked Philip t o get dressed and come outside (T459). When he got outside.
Philip heard strange sounds. which made him think at first that his dog had gotten run over (T459). Philip followed Appellant to the side of Appellant's camper. where he discovered that the sounds were coming from a bundle wrapped in a white sheet (T460). Ray told Philip that it was a girl who had been shot in adrug deal at the Land 0' Lakes post office (T461).
Appellant then got a garden hose and doused the bundle with water (T461-2). He took wooden club. possibly atire buddy. off the wrecker he was driving and started "thumping" the body (T462-3.
467). The noises stopped (T464). Ray then doused the body again with the water hose (T463-4). Appellant asked Philip to help him load the body onto his wrecker (T464). When Philip com plied, he noticed that the feet were covered by stockings but the shoes were missing (T465).
Around 10:00 a.m, that morning, a female body was discovered about 1/2 mile from the Bolin residence (T222, 225). The body was fully clothed except for the shoes and was wrapped in a white sheet marked St. Joseph's Hospital (T223-4. 240. 281, 336). Homicide investigator Kenneth Hagin of the Pasco County Sheriff's Office testified that it struck him “odd“ that the victim's clothing was wet because it had not rained (T337). The medical examiner, Edward Corcoran, M.D. determined that death was caused by a combination of five stab wounds and blunt trauma to the head (T282-4).
The victim. identified as Teri Lynn Mathews. appeared on a videotape taken by a surveillance camera at the Land 0' Lakes post office during the night in question (T292. 317). Her automobile was found in the parking lot of the post office with the head lights still on (T297, 303). The car was unlocked and her purse was sitting on the front seat (T303). The victim had apparently stopped at the post office to pick up mail from the box she maintained there with her parents (T296, 325, 329-30). Bolin also had a post office box at the Land 0 ' Lakes post office (T325, 724-5).
A semen stain found on the pants that Teri Mathews was wearing was submitted to CellmarkDiagnostics for DNA analysis (T541. 544).
was compared to a blood sample taken from Appellant (T543-4, 547-51). Forensic scientists David Walsh testified that there was a match between the two (T551-2).
Further evidence tending to incriminate Bolin included testimony by his former employer that Appellant drove a wrecker for them during December 1986 (T438. On December 4, 1986, Bolin was dispatched to a service call in Pasco County (T439-40). He should have returned with the wrecker to Tampa by late afternoon, but did not report until 10:00 a.m. the following morning (T443-5). Tire tracks at the scene where Teri Mathews' body was discovered were made by a vehicle having duval wheels on the rear, consistent with the wrecker Bolin was driving that night (T341, 351-2, 355, 360).
The deposition of Appellant‘s ex-wife, Cheryl Haffner, which was read into evidence, included her admission that she brought hospital property home with her after her stay in St. Joseph's Hospital during 1985 (T692). She also said that sometime after this homicide while she was riding with Bolin, h e pointed out the spot where Mathews' body was found (T727).
The greater part of the case presented by the State consisted of evidence linking Bolin toto other homicides committed in Hillsborough County during 1986. Captain Gary Terry of the Hillsborough County Sheriff's Office testified that he headed up a task force created in July 1990 to examine links between the murders of Natalie Holley, Stephanie Collins and Teri Mathews (T487-8). He pointed out locations on a map of Hillsborough County where events related to the Holley and Collins homicides had occurred (T491, 496-7). He detailed similarities between the victims and the manner in which they were killed (T497).
January 25,1986, the body o f Natalie Holley was discovered in an overgrown orange grove (T511). Over defense objection, photographs of the victim came into evidence (T514-8). Dr. Lee Miller, an associate medical examiner testified that Holley was stabbed multiple times in the chest and neck (T533). Tests for acid phosphatase were negative except: far the mouth where the results were equivocal (T535-6). There was no evidence of a sexual attack (T537). Over Appellant's objection, the clothing and shoes found on the body of Natalie Holley were admitted into evidence
Deputy sheriff Ron Valenti testified that around 1:00 a.m. the morning o f January 2 5, 1986. he encountered two vehicles parked on Smktter Road (T521-2). He stopped parallel to the occupied car and rolled down his passenger side window (T522-3). The male driver told Valenti that the woman passenger was taking him to get gas (T523). The woman told the deputy that everything was fine (T523).
saw that night in 1986 (T524). When Valenti was shown a photograph o f Natalie Holley, he said "the similarity was very close to what she looked like" (T525).
December 5, 1986, a body was found 10-15 feet from the side o f Morris Bridge Road in Hillsborough County (T566-7). Over Appellant's objection. photos o f the heavily decomposed body were admitted into evidence (T568-71). Former chief medical examiner, Peter Lardizabal testified that the body was identified as that of Stephanie Collins. who had been missing fora month (T397, 402).
determined that the cause of death was multiple blunt trauma to the head (T400). Although there were slits in Collins' clothing, the decomposed state of the body prevented Lardizabal from determining what stab wounds might have been inflicted (T401, 403- FBI special agent Michael Malone. senior examiner of the hair a nd fibers unit of the FBI laboratory, testified that he received fibers from the three homicides for testing (T587-8, 590). He found dark black woo fibers. consistent with coming from the same source, on all three victims (T593-4). He also found red woo fibers in all three cases which were consistent with coming from the same source (T599-600). He identified a head hair found on the body of Stephanie Collins a s consistent with coming from Bolin (T602). However. Malone conceded that he couldn't connect Bolin in any way to a source for the red and black fibers (T606-7).
The deposition of Cheryl Haffner, read into evidence over Appellant's multiple objections, provided the most incriminating portion o f the State's case in regard to the homicide victims Holley and Collins (T659-737). According to Haffner, on the evening o f January 2 4. 1986, she and Bolin (her husband at that time) drove to aBurger King restaurant and sat in the parking lot drinking coffee (T694-5). They were facing the Church's Fried Chicken restaurant; where Natalie Holley worked (T695-6). Appellant said he was "scoping the place out" (T696). They returned home, watched television and the witness went
In the early morning o f January 2 5. Appellant awakened her.
changing his shoes and she noticed that there was blood on the tennis shoes he took off (T698-9). He emptied out the contents of a purse on the bed and told his wife that it belonged t o the manager of the Church's Chicken (T699-700). Appellant explained that he had tried to rob the manager of the nights receipt. but that she did not have them (T700). Bolin took $75 from the wallet;
which was in the purse (T700-1).
Next. the witness accompanied Appellant to the site where the managers car was parked (T702). On the way, Bolin explained that he had intended to rob the manager, but he had t o kill her because she could identify him (T702). Bolin said that after he had got the victim to pull over to the side o f the road. a police officer drove up (T703). He put a gun in the managers ribs and told her to get rid of the officer (T703). When she told the policeman that she had car trouble and that Bolin was helping her, the officer left (T703). Bolin said that he then took the manager to an orange grove where he stabbed her seven times (T703).
When Bolin and his wife arrived at the location where the manager'scar was found, Bolin took a towel and wiped down the entire inside and outside of the vehicle (T704-5). From photographs. the witness identified Halley'scar as the one which Bolin had wiped down (T706). When Bolin finished, he and Cheryl drove north an the interstate to the Route 5 2 exit (T708). During this drive, Bolin threw his tennis shoes and the manager'spurseout the window (T708). They returned home where Appellant wiped down the Pontiac Grand Prix belonging to the couple (T708-9).
The witness never told anyone about this incident until she had divorced Bolin and was planning to get remarried to Danny Caby in April 1989 (T709). She told Coby because she "felt he had a right to know" (T709-10). In July 1990 she was questioned by detectives from the Hillsborough County Sheriff's Office. but initially denied that she knew anything (T710). Later that evening. she told the detectives what she knew (T710).
Turning to the homicide of Stephanie Collins, Cheryl Haffner testified that on November 5, 1986, she was at a Waffle House restaurant with friends (T712-3). Between 7 and 8 p. m.. Bolin came in and joined them (T713). Then Bolin insisted that she leave with him because there was "something important that he needed to talk to me about" (T713-4). The witness left with Appellant in his black and gray Ford pickup (T711, 714).
A s they drove. Bolin told his wife that there was a dead body in the travel trailer where they had been living (T714). He gave three different stories as to how the body happened to be there (T 715). In the first version, Bolin was discussing a plan to kidnap aboy with another man when the other man's girlfriend over heard them (T715). The other man killed the girl and then Bolin killed him (T715). The second version was similar except that Bolin killed the girl after she started screaming (T715). In the final version. Bolin said that he killed the girl because she could identify him and he would beina lot of trouble (T715). Appellant said that he hit the girl over the head and then stabbed her (T715).
When Bolin and his wife arrived at the travel trailer. she stayed i n the truck compartment while he went into the trailer (T716). Appellant returned with a bundle over his shoulder wrapped in a blue quilt (T717). The witness said that it appeared to be a human being (717). Bolin put the body in the back of the pickup (T718). Then he went back into the trailer for about ten minutes (T719). When Bolin returned to the truck. he said that he had cleaned up the trailer the best he could (T719).
The couple then drove out of Tampa on Morris Bridge Road (T719-20). Bolin stopped the truck on the roadway, took the body out of the back and threw it in a ditch (T720-1). We tested to see that the head lights wouldn't shine on the blanket that the body was wrapped in (T721). Then the witness and Balin returned to the travel trailer (T721). This time. she went inside and saw that everything was wet in the bathroom (T721-2). She saw what appeared to be blood on the curtain, the ceiling, the walls and the carpet (T722). Her butcher knife, its handle wet. was by the sink (T722).
One month later. December 5, 1986. Cheryl was confined at Tampa General Hospital when Appellant came to visit her (T723).
They were watching a television newscast about the discovery of Stephanie Collins' body when Bolin exclaimed. "That's her, the girl in the travel trailer" (T723-4).
PENALTY PHASE
In the subsequent penalty trial, a Wood County. Ohio detective testified about Bolin's convictions in that state (T952-61). In 1987. twenty-one year old Jenny LeFever finished her shift as a fuel clerk at a Truck Stops of America location about 12:30 a.m.
about a mile and then matched the victim into truck occupied by two other men (T953).
The victim was forced to dis robe in the sleeper compartment of the truck (T954). During the next five hours as the truck was being driven into Pennsylvania. Bolin repeatedly raped LeFever (T954-5.
958-9). She was eventually turned loose in a field (T955).
an exercise room (T956). With a metal pipe from the exercise equipment, he attacked a jailer in an escape attempt (T956-7). The jailer was hospitalized; but other inmates subdued Appellant and thwarted his escape (T954).
The certificates of conviction for the two Ohio offenses were entered into evidence (T958). Also, the certificates of conviction for the offenses involved in the Holley and Collins homicides came into evidence (T964-5).
Over objection. Sergeant Gary Kling was permitted to testify about an incident that Philip Balin had recounted tohim (T966-70).
Philip said that around Thanksgiving o f 1986 he was a passenger in a truck being driven by Appellant (T968-9). When they saw a young female jogger, Appellant told his brother to take a gun, poke it in the girl's ribs, and force her into the truck (T969). Philip refused (T969). According to Detective Kling. Appellant then belittled Philip, roasting that he had "done it several times in the past" (T969).
The sole defense witness was Dr. Robert Berland, a forensic psychologist (T974-1088), In the course of evaluating Bolin. he administered two psychological tests, the Minnesota Multiphasic Personal Inventory and the Wexler [sic] Adult Intelligence Scale (T985). The results of the MMPI showed elevated schizophrenia and paranoia scales (T1001). Also, Bolin scored quite high on the mania scale, suggesting that he was "energized because of some psychological defect in [his] brain" (T1001). Berland concluded that the MMPI profile showed evidence of both sociopathic thinking and biological mental illness (T1002).
The doctor testified that the WAIS test was useful not only a s a measure of intelligence, but also as a reliable indicator of brain damage (T1013). Bolin scored an estimated full scale IQ of 99, placing him right at the average for intelligence (T1015). D r.
Berland found it significant that there was a37 point difference between Bolin's highest score on the sub tests and his lowest score (T1016). This wide difference suggests that Bolin once functioned at a higher level before brain injury reduced his cap abilities in many areas (T1016-7).
the testing, Dr. Berland conducted a clinical interview o f Appellant (T1017). Bolin admitted having some hallucinations and delusions which are commonly observed in mentally ill people (T1019-21). He acknowledged episodes of hypomania and depression (T1021-2). Dr. Berland said that Bolin's thinking was organized and that he "is able t o present a normal appearance when you look at him" (T1024). Consequently, Berland classified Bolin's mental illness as mild to mode rate (T1024).
Regarding brain damage, the doctor listed seven incidents during Bolin's life which could have injured the brain (T1025-29).
These included heavy alcohol use by his mother during pregnancy, an automobile accident where his head went through the windshield, being knocked unconscious at age eight o r nine when he hit a rock pile after going down a steep hill in a wagon, and an attempted suicide in jail at age 17 where Bolin was revived after being without oxygen for six to seven minutes (T1025-7).
Dr. Berland also stated that Bolin‘s upbringing was disorganized, violent and abusive (T1029). As a child, he was moved frequently between living with his mother and living with his father (T1030). He suffered beatings from his father (T1030).
When Appellant was five or six, his father shot a gun at his feet during a domestic dispute (T1030). Later, the father locked the family in the house, doused it with gasoline, and tried to set it on fire (T1031).
The doctor found a history o f mental illness in both of Bolin's parents (T1032). Appellant's sister had also been admitted to a mental hospital (TJ032). Family members and other lay witnesses reported that Bolin had a long standing pattern of psychotic disturbance (T1035). Dr. Berland concluded that Bolin was suffering from a mental or emotional disturbance when he committed the homicide (T1039). Although Bolin could appreciate the criminality of his conduct, his ability to conform his conduct to the law was impaired by mental illness (T1042).
The State presented rebuttal testimony from Sydney Merin, a clinical psychologist (T1090-1123). Dr. Merin testified that he reviewed results from MMPI tests given by Dr. Berland, depositions of D r. Berland and police reports (T1093). He disagreed with Dr.
Berland's conclusion that Bolin was psychotic (T1094). Merin a described the MMPI results as showing "odd o r peculiar thought processes " best designated as a character disorder (T1094). He said there was reason to question whether the person who took the MMPI was exaggerating certain types of mental disturbance (T1099).
D r. Merin stated that the combination of scores on Bolin's MMPI was most frequently found in antisocial personalities (T1100-05).
The witness further testified that despite the reports that Balin's mother drank heavily during her pregnancy, there was no evidence that Bolin suffered from fetal alcohol syndrome (T1108).
Dr. Merin disagreed with Dr. Berland's assessment of the WAIS results (T1188 - 1111). Rather than indicating that the restof his brain functioning had been impaired, Bolin's particularly high score on one sub test merely "means that he may like numbers"
no reason to think that Bolin was psychotic or suffering from a biological mental illness in 1986 (T1114-6). He concluded that Bolin was "behaviorally impaired, but not mentally impaired" (T1119).
SUMMARY OF THE ARGUMENT
Due process provisions of the federal and state constitutions do not permit the State to misrepresent evidence in order to obtain a criminal conviction. A t bar, in a pretrial hearing on the admissibility of Williams Rule evidence, the State misrepresented evidence to make the three homicides appear more similar. The trial court's findings o f fact in an order admitting the collateral crime evidence relied upon four similarities, two of which were bonus and based upon State misrepresentations. The record reflects that dur - ing trial. the judge showed misgivings about allowing the col literal crime evidence. Consequently, the misrepresentations were material and violated Appellant's rights.
Even when collateral crime evidence is properly admissible, the prosecution cannot be permitted to make collateral crimes the "feature" of the case. From the beginning, the prosecutor emphasized to the jury that Bolin was a serial killer. Much of the testimony and evidence admitted during trial bore no relevance whatsoever to the homicide for which Bolin was being tried. The prosecutor created reversible error by presenting collateral crime evidence to demonstrate Appellant's bad character rather than prove material issues o f the case.
order for collateral crime evidence to be admissible on the issue of identity. the crimes must bear more than ageneral similarity. The homicides of Natalie Holley and Stephanie Collins did not exhibit unique characteristics shared by the homicide for which Bolin was tried here. The collateral crimes should not have been admitted into evidence at all.
f written questions submitted by the jury during trial suggested that the jurors might be engaging in premature deliberations. The judge denied defense motions for mistrial and to inquire of the jurors to ascertain whether discussion had occurred and whether Bolin could have been prejudiced. Later, the court also denied a defense request for inquiry of the jurors as to whether they had been exposed to any media publicity about the case during their weekend recess. The court's failure t o inquire of the jurors under these circumstances denied Balin a fair trial.
The trial judge followed an earlier ruling by a Hillsborough County circuit judge that Bolin waived his marital communication privilege by deposing his ex-wife. The propriety of the Hillsborough ruling is currently pending before this Court in Case Nos.
78,905. If this Court rules in Appellant's favor in this issue in Case Nos. 78,468 and 7 8, 905, his conviction in the case at bar should also be reversed because of the extensive and highly prejudicial testimony about marital communications.
Although Philip Bolin was a witness at the guilt phase o f Appellant's trial, the State did not call him asa penalty phase witness. Instead. on a theory that hearsay is admissible, Sergeant Kling testified about an incident reported to him where Appellant allegedly suggested to Philip that he should abduct a female jogger by sticking a gun in her ribs. Under prior decisions of this Court, due process including the Sixth Amendment right of confrontat ion applies to the penalty phase ofa capital prosecution. The defense could not effectively cross-examine Sergeant Kling or rebut his testimony because Kling had no first hand knowledge about the incident. Furthermore. the testimony was irrelevant to any aggravating circumstance; it merely proved bad character.
The limited evidence available surrounding the homicide of Teri Matthews suggests a chance encounter at the Land O'Lakes post office precipitated the episode. There is no evidence to prove a careful plan o r pre arranged design to the killing. Therefore, the cold, calculated and premeditated aggravating circumstance was erroneously considered by the jury and found by the sentencing judge.
Finally, the trial judge should not have instructed the penalty jury that Bolin‘s escape conviction from Ohio was a prior violent felony. Escape, like burglary, is a felony which may or may not be violent, depending upon the circumstances. Any finding about its violent or non violent character should have been made by the jury under appropriate instruction. Viewed in combination with the other penalty phase errors, this instructional error was not harmless.
ARGUMENT
ISSUE I
APPELLANT WAS DENIED DUE PROCESS OF
LAW WHEN THE STATE OBTAINED A FAVOR-
ABLE PRETRIAL RULING ADMITTING COL -
TIES CONNECTING THE COLLATERAL
CRIMES.
Supreme Court reversed a state conviction where the state'scase included physical evidence consisting of a pair of under shorts allegedly containing dried bloodstains consistent with the victim‘s blood type. In fact, it was known t o the prosecution that the stains on the under shorts came from paint, not blood. The Miller court affirmed the principle that the Due Process Clause o f the Fourteenth Amendment cannot countenance a criminal conviction obtained by the prosecution's knowing misrepresentation of evidence.
The prosecution's failure t o correct testimony f r om a state witness known to be false is alsoadue process violation. Napue this principle was extended to attribute responsibility to the prosecutor for failure to correct false testimony even where the use was negligent rather than knowing.
A t bar, the prosecutors misrepresentation of evidence did not occurbeforethe jury. but before the judge at a pretrial hearing.
Appellant asserts a due process violation because the misrepresentat ion was a material factor in the trial court's ruling allowing evidence of other crimes committed by Appellant to be presented before the jury at trial. I t should be noted that due process principles have been applied to vacated a conviction where the State's misrepresentation occurred before the grand jury and the defendant subsequently pled guilty. People v. Pelchat, 62N.Y.2d 97, 464 N.E.2d 447 (1984). Consequently, due process can be violated by prosecution misrepresentation even if the conviction does not directly rest on the false testimonyor evidence.
In addition to Fourteenth Amendment due process, Appellant relies upon Article I, section 9ofthe Florida Constitution, which this Court has construed more broadly than federal due process.
See. State v. Williams, 623 So. 2d 462 (Fla. 1993); Glosson v.
State, 462 So. 2d 1082 at 1085 (Fla. 1985).
In the case at bar, a pretrial hearing on the admissibility of
other crimes, o r Williams Rule, evidence was held June 1 2, 1992
(R287-337). The court heard testimony from Corporal Lee Baker of the Hillsborough County Sheriff's Department (R291-311) and arguments by counsel before deciding to defer ruling (R337). On June 2 9, 1992, the court released a written "Order Conditionally Granting State's Motion to Admit Williams' Rule Evidence" (R70 - 2, A1-3). In finding that a "unique and unusual pattern of criminal activity" which would permit evidence o f the collateral crimes to be introduced, the trial judge wrote:
What are the odds that three young women would be abducted from theircarsandstabbedto death in the same general geographic area, in the same year and have in common the following factors: (1) A11 have matching black fibers on their bodies with two o f them also having matching red fibers an their bodies. (2) Two of the decedent were missing their shoes.
Two of the decedent were wrapped in hospital items. (4) The same two decedent that were wrapped in hospital items were last seen near State Road 41, a road which runs through both Hillsborough and Pasco Counties.
reality, two of the four factors upon which the court relied (Nos. 2 and 4) were non existent and based upon misrepresentations by the State.
A. Missinq Shoes It is undisputed that the victim in the case at bar. Teri Matthews. was found without shoes o n her feet (T223). With regard to the Natalie Holley homicide, Corporal Baker testified at the pretrial Williams Rule hearing:
Q. Now. could you tell us about Natalie Holley, when her body was located. was there anything missing that your personnel o r yourself could observe?
A. I believe her shoes and her purse was missing.
(R299). Based upon chis testimony. the trial judge made his finding that "Two of the decedent were missing their shoes" as similar fact evidence (R71.A2).
However, at trial, the State actually introduced into evidence the shoes found on the body of Natalie Holley as State'sExhibit 28' (T561.563-4). The prosecutor knew or should have known that Listed a s exhibits TT and SS for identification.
of the prime similarities upon which the trial court relied in allowing the collateral crime evidence was false - - yet he did nothing to correct the State's misrepresentation.
B. Proximity to State Road 41 Initially, there seems to be some confusion over what road is meant. Both State Road 41 and U. S. Highway 41 run through both Hillsborough and Pasco Counties. However, the only connection which either road seems to have with respect to the homicides is that the Land O'Lakes post office, where the car of Teri Matthews was found, is located on U. S. 41 in Pasco County (T321).
Nevertheless, the following testimony was adduced at the hearing:
Q. Okay. Is there any connection that you're aware of between the street locations, that you're aware o f?
A. A s far as the Collins girl, no. The Matthews and Holley girls - - strike that. The Collins girl and the Matthews girl were both located near what would b e known as State Road 41, which they were last seen at.
Q. Okay. And that's Stephanie Collins and Teri Lynn Matthews
A. Yes.
(R304-5). The prosecutor followed this up in his argument by stating, "The Collins and Mathews girls, the geographical location is all 41" (R324).
Appellant concedes that Teri Matthews was last seen by the camera at the Land O'Lakes post office on U. S. Highway 41. As Corporal Baker testified, Collins was last seen at an Eckerds drugstore in a mall o n Dale Mabry Highway in northwest Hillsborough County (R299). Her body was discovered on Morris Bridge Road in northeast Hillsborough County (R297-8). Accordingly, this is another uncorrected State misrepresentation upon which thetrial judge relied in ruling the Williams Rule evidence admissible.
pretrial hearing, the prosecutor exaggerated the similarity between the manner of killing the three victims. He represented:
death, we had Natalie Holley, she died from stab wounds. We had Collins' cause of death, multiple stab wounds. Matthews' cause of death, multiple stab wounds.
(R323). Yet at trial, medical examiner Lardizabal testified that the cause o f Collins' death was " severe multiple blunt impact of the head" (T400). Matthews died from a combination of blunt trauma and stab wounds,; but the stab wounds alone would have only been "possibly" fatal (T284). Thus. the trial judge ' s conclusion in his order that all the women were "stabbed to death" (R71) relies upon the prosecutors misrepresentation.
D. Materiality During the progress of the trial, the trial judge voiced misgivings about the Williams Rule evidence. At one point, the court said to the prosecutor:
But that's what bothers me. We should never have got involved with the Williams Rule in this case at all. But I understand that it's your case to run.
(R502-3). Later, after the State had rested its case, the judge commented:
Frankly, I'm not asking the State fora comment, but my guess is if they had to do it over again based on hindsight they might not mention the ruling Williams Rule, but in any event --
misleading the court on the collateral crime issue, the judge's comments indicate that he probably would have changed his ruling admitting the Williams Rule evidence had he been correctly informed about its relation to the case at bar.
Ordinarily, a trial court's ruling on the admissibility of evidence enjoys a presumption o f correctness on appeal and will not be reversed unless an abuse of discretion can be shown. Hall v.
State, 568 So. 2d 882 (Fla. (1990) (expert witness testimony); Duest v. State, 462 So. 2d 446 (Fla. (1985) (photographs); Owen v. State, motion to suppress); Martinez v. United States, 770 F.Supp. 621 (M.D. (Fla. 1991) (admission o f similar fact evidence). However, this presumption of correctness should not apply when the trial court's ruling was based in part upon prosecutorial misrepresentation. It especially should not apply where, as here, the trial judge made repeated comments suggesting that he wished he had ruled differently. * The only proper remedy is to grant Appellant a new trial without regard to whether Bolin's collateral crimes were sufficiently similar a s to be otherwise admissible. Due Process cannot permit the State t o benefit from its misrepresentation of evidence at the pretrial hearing. Nor can admission of collateral crime evidence be held harmless when it is " afocal point of the trial."
See, State v. Lee, 531 So. 2d 133 at 137 (Fla. 1988). Bolin should now be awarded a new trial.
See e.g. T505 ("in any event, we're sort of tied up in Williams Rule now. Sometimes I wish we weren't").
ISSUE I1
APPELLANT WAS DENIEDAFAIRTRIALON
THIS PARTICULAR CHARGE AND DUE PRO-
CESS OF LAW BECAUSE THE PROSECUTION
WASPERMITTED TO MAKE THE COLLATERAL
CRIMES EVIDENCEAFEATURE OF THE
CASE.
for whichBolinhadbeenconvicted. During voir dire, the prosecutor make repeated mention of thehomicidesof StephanieCollins and Natalie Holley as well as thevictiminthe caseatbar (R569,582-3). Thispromptedoneprospective juror t o inquire, " Are we tryingthisdefendant: asaserialkilleror just foronemurder? " (R590). The trial judge echoed the prospective juror's sentiment when he exclaimed to the prosecutor mid way through the trial:
whatarewetrying him for andwhatisthe nature? Itsoundstomelikethe volume of evidence we aregoingtostartendingupwith two thirds of theevidencedealingwiththings that aren't really before us.
of Natalie Holley and StephanieCollins (T395-405,510-38,558-86,620-46.689- 724.731-7). Another sixtypagesoftestimonyrelatedtheHolley andCollinshomicidesin some way tothecaseatbar (T487 - 507, 587 - 612,738-48). Thisincluded testimony fromtheleaderofthetask forceinvestigatingthethree homicides, Captain Terry (T487-507), and from the detective who accompanied Cheryl Haffner to the various locations where events in the three homicides took place (T738-48). F. B. I. Agent Malone provided the only classic Williams Rule testimony when he linked fibers found on the three victims
The jury heard testimony solely connected to the Holley homicide from the medical examiner who performed the autopsy on her body (T530-8). Hillsborough County Sheriff's Deputy Ron Valenti testified about seeing Bolin parked beside the road on January 25, 1986 with an unidentified female who might have been Natalie Holley (T520-9). The clothing which Holley was wearing when she was killed was identified before the jury and admitted into evidence (T558-65). Numerous photographs of Holley's body, chain of custody testimony, and even photographs of vehicles belonging to Balin and Holley came into evidence (T510-19.584-6.613.620-46).
A similar plethora o f evidence about the Stephanie Collins homicide was presented. The medical examiner testified (T395 - 405).
Several photographs of the body were admitted into evidence and the physical evidence was described (T566-83,620-46).
However. the most prejudicial testimony came from the deposition of Bolin‘s ex-wife, Cheryl Haffner. Haffner described in great detail her participation in coverup activities related t o the Holley homicide (T691-710). She related Appellant's account of how he stopped Natalie Holley's car with the intention of robbing her and eventually stabbed her to death (T700 - 3). Haffner gave a blowby-blow account o f the removal o f Stephanie Collins' body from the travel trailer she shared with Bolin and its disposal beside a rural road (T711-23). She testified to three different explanations which Bolin gave her concerning the circumstances of the homicide (T715). She recounted Bolin's reaction when a television broadcast reported the discovery of Collins' body (T723-4).
contrast. Haffner had very little to say relevant to the homicide at bar. She provided evidence that Bolin was at the Land O'Lakes post office at some time to pick up her social security check) (T724-5). She said that once when she was riding with him after the homicide, Appellant pointed to the area where Teri Matthews' body was found without admitting that he was responsible in any way (T727-8).
conducted a three-ring circus where both the Holley and Collins homicides received equal bill ing with the Matthews homicide for which Bolin was actually being tried. Appellant does not concede that any of the collateral crime evidence was properly admissible (see Issue 111, infra); but even if it were. it is reversible error when Williams Rule evidence becomes a feature rather than a sideshow o f the case. Williams v.
State, 117 So. 2d 473 (Fla. 1960).
The rationale of this Court's decision in Williams3 i s that where collateral crime evidence is admissible, the State may not "go too far in introduction o f testimony about the later crime so that the inquiry transcend[s] the bounds of relevancy t o the charge being tried." 117 S o. 2d at 476. The trial may not become "an Not to be confused with Williams v. State. 110 S o. 2 d 654 (Fla. 1959) which permit collateral crime evidence where relevant to issues other than criminal propensity.
assault on the character of the defendant whose character is insulated from attack unless he introduces the subject." 117 S o.
2d at 476.
Under circumstances similar to those at bar. Florida court5 have found reversible error. For instance, in Denson v. State. 264 So. 26 442 (Fla. 1st DCA 1972), the court noted that the evidence of guilt was "almost conclusive. " Nonetheless, the conviction was reversed because the prosecutor "parade[ed] before the jury a full review of the defendant's subsequent criminal conduct." 264 S o. 2 d at 442. Other decisions where extensive evidence of collateral crimes led to reversal include Lonq v. State, 610 S o. 2 d 1276 (Fla.
(1992); Zeiqler v. State, 404 So. 2d 861 (Fla. 1st DCA 1981); Matera
v. State, 409 So. 2d 257 (Fla. 4th DCA 1982); and Matthews v.
170 (Fla. 3d DCA 1979). The Matthews court additionally noted that when collateral crimes become the feature of a trial. the defendant is deprived of due process under the Fourteenth Amendment, U. S. Constitution and Article I, sections 9 and 16, Florida Constitution.
186 at 189 (Fla. 1984). this Court suggested a test for determining whether collateral crime evidence exceed permissible bounds. In affirm ing the defendant's conviction, the Randolph court wrote:
Testimony was geared toward proving amaterial issue of the case rather than demonstrating Randolph's bad character.
was relevanttoanymaterialissueofthe Matthews homicide. The prosecutor was simply intent on impress ing thejury with Appellant's bad characterasaserialkillertoen - surethatthejurywouldreturnaverdictofguilty as charged.
ISSUE I11
THE COLLATERAL CRIMEEVIDENCE SHOULD
NOT HAVE BEEN ADMITTED BECAUSE THE
HOMICIDES OF NATALIE HOLLEY AND
STEPHANIE COLLINS WERE NOT SUFFI-
CIENTLYSIMILAR TO THE CASE AT BAR
AS TO BE ADMISSIBLE O N THE ISSUE OF
IDENTITY.
52 (Fla. 1986). thisCourtemphasizedthatcollateral crime evidencedoesnot become relevant andadmissiblemerelybecausetheoffenseisthe same anditoccurs inthe same vicinity. This holding is particularly pertinent i n the case a t bar becausethethree victims were murdered inthe Tampa Bay metropolitan are a (populationofnearly2million) Over aperiod of almost eleven months. Unfortunately, other young women were alsomurderedduringthistimeperiodinthe Tampa Bay area.
court wentontodiscusstheappropriatetest for admissibility of collateral crime evidence on the issue of the identity of the perpetrator. Quoting from Drake v. State, 400 So.
2d1217at1219 (Fla. 1981). thisCourtwrote:
mere generalsimilaritywillnotrender thesimilarfactslegallyrelevantto show identity. Theremust be identifiable points of similarity. which pervadethe compared factual situations. Given sufficient similarity. inorder for thesimilarfactsto be relevant, the points of similarity must have some specialcharacterorbesounusualasto point t o the defendant.
488 S o. 2dot55. Moreover. thetrial judge must notonlyconsider similarities between the crimes, he mustconsiderthedissimilari - ties as well. Id.. 488so. 2d at55.
Bearing these considerations i n mind, we mustcompareand contrast the details of each of the two homicides admitted as Williams Rule evidence with the details of the Teri Matthews homicide.
A. Natalie Holley The incident with NatalieHolleyoccurredJanuary25. 1986.
overtenmonthsbeforethehomicideatbar (T697). Unlike the case atbar, Appellant ' smotiveforstoppingHolley was robbery (T702).
The manner i n which the Holley incident occurred was also dissimilar. Bolin followed Holley ' scarandgothertopullover to the side of the road by flash ing his lights (T703). By contrast. theevidenceatbarindicatesthatMatthews was probably interceptedwhile on footintheparkinglot of the post office
Holley was simplystabbedtodeath (T533-4,703). While Matthews was also stabbed. the primary cause of death was blunt trauma (T284). More significantly. HolLey was killed atthe site where her body was found (T703). Matthews, on theotherhand. was killed at onelocationandherbody was dumped atanother. Also. Holley's body was leftuncoveredwhilethatofMatthews was wrapped
The onlyspecificdetailof great similarity was the fiber evidence. F.B.I. Agent Malone testifiedthathefoundblack woo fibers on all three bodies which had consistent microscopic characteristics (T598-9). He also found a "very fine" red woo fiber on Holley's body which matched fibers from the other cases as to the dyer characteristics (T596-7). Malone speculated that such fibers could have come from a blanket (T600).
However. the significance o f this fiber evidence was diminished by the fact that the State could not show the source of the fibers. In fact. Malone conceded that the fibers could have come from different sources at different times (T606). There was no known connection between the fibers and Appellant
B. Stephanie Collins Although Stephanie Collins was also a white female. she was a high school student almost: ten years younger than Teri Matthews (T398). Collins was apparently abducted from shopping mall parking lot during broad daylight a s opposed to the apparent abduction of Matthews around 2:30 a. m. (T299).4 Admittedly, there are similarities in the manner that Collins and Matthews were killed and in the way that their bodies were dumped at sites several miles from where they were killed. However. the most glaring aspect of the Collins case is the total absence of evidence as to what occurred before she was murdered in Bolkn's travel trailer. We d o not even have any idea of what Appellant's motive was.
In Peek, supra. at 55, this Court found a significant dis similarity between a crime committed at night and the collateral crime committed in daylight.
C. Conclusion The dis similarities between the Holley and Matthews homicides far outweigh the similarities. The standard set forth by this Court in Heurins v. State, 513 So. 2d 122 at 124 (Fla. 1987) is:
The charged and collateral offenses must be not only strikingly similar, but they must also share some unique characteristic or combination of characteristics which sets them apart from other offenses.
This standard was not met by the different characteristics of the Holley and Matthews homicides.
As regards the Collins and Matthews homicides, there simply is not enough evidence available to conclude that the crimes were significantly similar and set apart from other homicides. This Court should compare the pervasive similarities found sufficient to admit the collateral crime evidence in Gore v. State. 599 So. 2d 978 (Fla. 1992) and Crump v. State, 622So. 2d 963 (Fla. 1993) with the paucity of evidence in Drake v. State, 400 So. 2 d 1217 (Fla.
1981). The circumstances at bar are closer to those in Drake than to those in Gore and Crump. Consequently, this Court should now hold that the admission of the collateral crime evidence against Bolin showed only bad character and propensity to murder young women rather than proof that he committed the charged offense of murdering Teri Matthews.
The error in admitting the collateral crime evidence cannot be harmless. A large part of the State's case was devoted to it (see Issue I1 supra). In Ellis v. State, 622So. 2d 991 at 998 (Fla.
(1993). this Court wrote:
Whenever improper evidence becomes so prom - nentafeature of the trial, a court cannot findthattheerror was harmless beyond a reasonable doubt.
Accord, State v. Lee, 531 So. 2d 133 (Fla. 1988); State v.
DiGuilio, 491 So. 2 d 1129 (Fla. 1986). Appellant should now be granted anew trial.
ISSUE IV
THE TRIAL JUDGE ERRED BY FAILING TO
CONDUCT ANY INQUIRY WHATSOEVER INTO
POSSIBLE JUROR MISCONDUCT WHEN A P -
PELLANT'S REQUESTS FOR INQUIRY HAD A
REASONABLE BASIS.
A. Premature Deliberations During the State's evidence portion of the trial, the bailiff informed the judge that the jury asked why jurors couldn't ask questions in court (R421). The bailiff told the jury to put their questions in writing (R421). As presented tothe court, the ques - tions were:
(1) Has Mr. Bolin entered a plea?
(2) Did the man from Kales & Kales know who was driving the truck when the truck came in?
(3) Can we play cards in the back room?
(4) Can we help Cindy count the votesfar Homecoming Queen for her school? This will b e tomorrow?
Defense counsel expressed concern that the first two questions were not appropriate topics for discussion among the jurors at this time (T429). He suggested that the judge inquire o f the jury as to how those questions happened tobe written and whether there had been any discussion (T429-30). The court decided not to make an inquiry; but would merely instruct the jury (R432). Defense counsel's motion for mistrial was denied (R432).
The judge then addressed the jury in a rambling explanation of their role (T433-7). Regarding the first two jury questions, the judge stated:
The first two questions deal with facts and matters that have been the results of question ing by the attorneys at this paint. My problem is that I can't comment on that.
The judge did allude to the possibility o f premature deliberations:
Then there's this second problem that in order t o formulated the questions it might actually be necessary for jurors to talk about the case together, which as I‘ve told you before, you certainly can't do until you have all the tools that you need to properly d o your job in this case.
(T434-5). The court concluded:
good questions. The first two ' m afraid 1 can‘t help you with except to explain to you again that these attorneys are quite experienced, they know what they can bring out and what they should not be bringing out....
The problem with the court's response to the jury questions is that he never ascertained whether the jury had discussed the case and whether Appellant could have been prejudiced. Moreover, the judge did not; clearly admonish the jury that they should not be discussing the evidence presented until the case was submitted to them for deliberations.
There does not appear to be any Florida case law with regard to premature deliberations. However, in jurisdictions where this issue has been addressed, the likelihood o f prejudice t o the defendant has been noted. In Commonwealth v. Kerpan,
A. 2d 829 (1985), the Pennsylvania court expressly prohibited premature jury discussions. The Kerpan court explained:
Therearegenerallyfivereasonsgiven for prohibiting premature jury discussion. First, since the prosecution's evidence i s presented first, any initial opinions formed by the jurorsarelikelyto be unfavorable tothe defendant. and there isatendency for ajuror t o pay greaterattentionto evidence that conform his initial opinion. (Citation omitted) Second, once a juror declared himself before his fellow jurorsheislikelytostand byhisopinionevenif contradicted bysubse - quent evidence. (Citation omitted) Third. thedefendantisentitledto have his case considered by thejury as awhole, not by separate groups of cliquesthat might be formedwithinthejurypriortotheconclu - sion of the case. (Citation omitted) Fourth, jurors might form premature conclu - sionswithouthaving had the benefit of the court ' sinstructions concerning what law they aretoapplytothefacts of the case. (Citation omitted) Fifth, jurors might form prematureconclu - sions without havingheardthefinalarguments of both sides. (Citations omitted).
C. 1986). a murder conviction was reversed where the trial judge told the jurorsthattheycould talk aboutthecaseduringtrialaslongas they didn ' t make uptheirmindsabouttheverdict. The courtob - servedthatonceajurordeclaresan opinion. " heisapttostand by hisutterancestothe other jurors indefianceof evidence."
346 S.E. 2d a t 709. The "inherently prejudicial" instruction requiredreversalwithoutanyfurtherproofthatthedefendant was denied a fair trial. See also. People. Feldman, 87Mich. App.
Inclination would be t o give special attention t o testimony that confirm their prior expression" 1.
Inthefederal system, the courtin Winebrenner v. United States. 147F. 2d322 (8th Cir.), cert. den., 325U.S. 863 (1945) found that premature jury consideration of the evidence implicated bothdueprocessandtheSixth Amendment righttoafairtrialby an impartial jury. Failuretoadmonishthejury that they should notdiscussthecase among themselvesbeforetheyhadheardalloftheevidence, argumentsofcounselandinstructionbythecourt was held reversible error.
InFlorida, premature jury discussions are barred by Section 918.06, FloridaStatutes (1991). which providesinpart:
The court shall admonishthejurythatit istheirdutynottoconverse among themselves orwith any one else on a subject connected with thetrial or toform or express ano pin - ion on asubjectconnectedwiththetrial untilthecauseissubmittedto them.
law hadbeengiventothem (T200-01). However, when the jury later submitted the written questions, there was good reasontosuspectthattheadmonitionhadbeendisregardedto some extent. Itwould seem thatatleastonejurorhadaskedtheothers if theyheardaboutapleainthe case or what the witness from "Kales andKales " [ sic ] hadtestifiedto. Perhaps there were even full blown jury discussions of these points and othersbeforethe questions were submitted t o the court. Since the trial judge declined t o question the jurorsaboutthis, wesimplycan ' t know whathappenedin the jury room topromptthewrittenquestions.
The circumstances at bar at most like those presented in United States v. Resko, 3 F. 3 d 684 (3 d Cir. 1993). There, it came to light mid-trial that the jurors had been discussing the case among themselves. The trial judge declined to individually voir dire the jurors or grant a mistrial. A questionnaire asking fora "yes" o r "no" answer to whether there had been discussions and whether the juror had formed an opinions to guilt o r innocence was distributed to the jurors. The jurors unanimously checked "yes" to discussing the case and "no" to forming a conclusion regarding guilt o r innocence. On this basis, the trial judge ruled that the defendants had suffered no prejudice by premature deliberations.
The questionnaire revealed neither the nature nor the extent of the jurors' discussions. Consequently, the appellate court held that the district court erred by dec lining to engage in further inquiry - - such as individualized voir dire - - upon which it could have determined whether the jurors had maintained open minds.
at 691. Reversal was required because without evaluating the impact which the premature deliberations had on the jury, the court could only guess a s to whether there was prejudice.
bar. the trial judge similarly failed to conduct an adequate inquiry once the possibility of premature jury discussions was presented. Telling the jury that they asked good questions which he couldn't answer was nosubstitutefarfindingout the nature of thejury discussions which ledtothequestionsandthe extentofany jury discussionsoftheevidence. As i n Resko, the recordonlyallow us toguesswhetherjurormisconductresultedin prejudice t o Bolin.
B. Publicity Durincr Trial When courtreconvenedafteraweekendrecess, Appellant: r e - quested thetrial judge toinquire of thejury whether any juror had readorheardanythingaboutthecaseduringtheweekend. The
these folks have been instructed repeatedly andIthink it would be counterproductiveto basicallyinsultthembylettingthem know thattheJudgesuspects them o f somehow vio - latingtheirduties as jurors. I see no evidencethatanyofthemwouldhave done that.
jurorswhetherthey had read newspaper articles during the trial. The Robinson court held that when potentiallyprejudicialpublicity arises after thejury has been selected, thetrialcourtmust1) inquireifanyofthe jurors had read the material, and (2) i f any juror has been exposed, the juror mustbequestionedtodeterminewhetherthedefendanthasbeen prejudiced. Because thetrialjudgeinRobinsonfailed " totakeany actionto determine whether the jurors had been exposed
Other Floridacourts have followed Robinson infindingrever - sible error when the trial courtdenieddefenserequeststoinquire whether jurorshadbeenexposedtomedia reports during trial.
m, Krusev. State, 483So. 2d 1383 (Fla. 4th DCA 1986). rev.
(Fla. 1987); Duque v. State. 498So. 2d 1334 S o. 2 d 31 (Fla. 1991) wherethisCourtquotedwithapprovalfrom Robinson and stated:
the judge should have examined the subject news article when defensecounselfirstcalled it tothe court ' sattention.
581 S o. 2 d a t 35. However, theerrorinDerrick was cured when the judgelaterinquiredwhetheranyofthejurorshadreadany newspaper accounts during thetrial and thejurorsrepliedtheyhadn ' t.
Atbar, incontrasttoDerrick, the jurors were neveraskedif they had been exposed t o any publicityduringthetrialortheir weekend recess. Because the jury hadbeenseparated for anentire weekend after all of the evidence had beenreceivedinthiscapital case, theinherentdanger of improper influences was great. Cf.
jurysequestrationpriortodeliberations, butweekendrecess during deliberations was reversible error despite jurors' negative responses to inquiry about exposure to media coverage). Appellant's right to a fair trialundertheSixth Amendment, United States Constitution, and Article I. section 16. Florida Constitution was impermissibly compromised. Anew trial should b e ordered.
ISSUE V
THE TRIAL COURT ERRED BY FOLLOWING
THE RULING FROM APPELLANT'SPRIOR
TRIAL IN HILLSBOROUGH COUNTY THAT
LEGE, ADMISSION OF THE MARITAL COM-
MUNICATIONS WAS REVERSIBLE ERROR.
At Cheryl Haffner'sdeposition to perpetuated testimony held August 31, 1992, the husband/wife marital communications privilege was discussed with regard to the portion of Haffner’s testimony which repeated statements that Bolin made to her during their marriage (R453 - 6 7) The prosecutor relied upon the earlier ruling in Hillsborough County that Bolin had waived his marital privilege by taking his ex-wife's deposition (R453). Defense counsel con - tended that the issue could be relitigated in the case at bar
The trial judge ruled that once a privilege is waived, it is waived forever (R468.465). He adopted Judge Graybill'sHills - boroughs County finding that Appellant waived his spousal privilege
At trial. Appellant preserved this issue for appellate review by object ing t o the reading of Cheryl Haffner’s deposition because of the marital communications it contained (T682). The court adheredto his pretrial ruling and noted that everyone was relying upon what occurred in Hillsborough County (T683).
The marital privilege issue was thoroughly briefed in Appellant's appeals from his Hillsborough convictionsto this Court in Case Nos. 78.468 and 7 8. 905 currently pending. Because the ruling in thecaseatbar was predicated upon thecourt ' sruling forthetwoHillsboroughCountycases, it follows thatthe dis position by this Court of theissueon the already pending appeals should controltheresult here.
ISSUE VI
THE TRIAL COURTERRED BY ALLOWING
SERGEANT KLING TO TESTIFY IN PENALTY
PHASE ABOUT A N INCIDENT WHICH PHILIP
BOLIN RELATED TO HIM BECAUSE APPEL-
LANT WAS DENIED HIS SIXTH AMENDMENT
RIGHT TO CONFRONTATION OF ADVERSE
WITNESSES.
(Fla. 1983), cert.den., 465 U.S. 1074 (1984), this Court stated that "[tlhe requirements of due process of law apply to all three phases of a capital case in the trial court."' 438 S o. 2d at 813. In particular, the sixth amendment right to confrontation secured by cross-examination of adverse witnesses is a fundamental right applicable to capital penalty and sentencing proceedings. Id. at 814; Pointer v. Texas, 380 U.S. 400 (1965). Relying on Enqle, this Court ordered a new penalty proceeding in Walton v. State. 481. S o. 2d 1197 (Fla. 1985).
because confessions given by Walton's codefendants were presented to the penalty jury without the codefendants being available for At bar, a comparable error occurred when Sergeant Kling was allowed to present to the penalty jury an account of an incident where Appellant and his step brother encountered a female jogger.
While Philip Bolin was not a codefendants and his statement was not a confession. Appellant's right to cross-examine Philip, the
(1) Guilt or innocence phase, (2) Penalty phase before the jury, and (3) Sentencing by the judge.
negate when the State unaccountably put Sergeant Kling on the stand instead of Philip Bolin.b The prosecutor admitted that Kling's testimony was hearsay, but argued that hearsay is admissible in the penalty phase. As authority. the prosecutor cited acase where this Court allowed an investigating detective to testify to the details of a prior conviction7 (T967). The trial court permitted Kling to testify and further observed that criminal propensity was relevant to the defendant's character -- thus admissible during penalty phase
Pursuant to this ruling, Detective Kling testified that around Thanksgiving of 1986, Philip Bolin was riding in a truck driven by Appellant (T968). They were parked beside a bar about 11 p.m. when a young female jogger passed them (T969). Appellant allegedly told Philip to take a gun, hold it to the jogger's side and force her into the truck (T969). Philip Balin refused; Appellant belittled him, saying it was easy and "he ha[d] done it several times in the past" (T969). Sergeant Kling conceded that there was no evidence of a gun being in the truck at the time (T970).
Philip Bolin testified in the guilt o r innocence phase of the trial (T455-78). The jogger incident was the subject of proffered testimony (T365-8). Although the trial judge ruled that Philip's testimony about this incident was admissible (T389). the prosecutor decided not to use it in the guilt or innocence phase (T421) The State cited Boardhouse [sic] v. State (T967). Presumably, Waterhouse v. State, 596 So. 2d 1008 (Fla. 1992) was the decision they meant.
Although the parties and the trial judge ter med Kling's testimony "hearsay", the significant portions (Appellant's alleged directions and admissions to his step brother) were actually double hearsay. Had Philip Bolin testified, Appellant's boast that he had abducted women in the past by putting a gun in their ribs would have been hearsay, but admissible a s an exception to the Hearsay Rule under section 90.803(18)(a) o f the Florida Evidence Code (admission of a party-opponent). Cf.Swafford v. State, 533 So. 2 d 270 (Fla. 1988). However, Kling's testimony about: Philip Bolin's report o f Appellant's declaration constituted double hearsay or "hearsay within hearsay" which has never been held admissible. For instance, this Court in Hill v. State, 549 S o. 2d 179 (Fla. 1989) rejected the defendant's argument that he should have been allowed to present testimony of a person who would have testified that co-worker told him that another co-worker had confessed to the homicide. The Hill court wrote:
the proffered testimony is hearsay within hearsayfroma witness who did not himself hear the declaration against penal interest and, thus, had n o knowledge of whether the declaration was actually made....
We conclude that the hearsay within hearsay was not admissible under Florida law..
The same result should apply to the facts at bar. While hearsay may be admissible in penalty phase, it is subject to the qualification that the defendant must be "accorded a fair opportunity to rebut any hearsay statements. '' g921.141(l), Fla. Stat.
(1991). Appellant could not effectively cross-examine Sergeant Kling because Kling had no firsthand knowledge as to whether the statements had been made. Realistically, Kling could only respond that Philip Bolin told him the entire substance o f his testimony.
In effect. Sergeant Kling was touching for the credibility of the witness who should have testified, Philip Bolin.
Another defect in the testimony should also be considered - - its lack of relevance to the penalty phase. If believed, the testimony about the jogger incident tends to shed light on how Ray Bolin persuaded his female victims to accompany him and also inculpates him a s to having done it; previously. These matters, however, are not germane to any statutory aggravating circumstance.
In reality, the testimony only goes to prove a highly prejudicial non statutory aggravating circumstance - - that Ray Bolin attempted to recruit his thirteen-year-old step brother into committing similar acts.
The State contended that the testimony was relevant to establish the cold, calculated and premeditated aggravating circumstance (T968).n However, at most, the incident with the jogger shows Bolin's readiness to engage in criminal activity on the spun of the moment. Appellant never said anything about killing the jogger o r proposed anything other than forcing her into the truck at gunpoint. I n any event, a pattern which demonstrates ' This Court should note that the prosecutor cited this Court's decision in Pace v. State, 596So. 2d 1034 (Fla.), authority for the proposition that Appellant's remarks to Philip showed heightened premeditation (T878-9). However, the cold, calculated and premeditated aggravating circumstance played no role whatsoever in Pace.
a method of attacking females has been held insufficient to establish the cold, calculated and premeditated aggravating circumstance. Power v. State, 605 So. 2d 856 at 864 (Fla. 1992), cert.den., -U.S.-, 113 S. Ct. 1863, 123 L. Ed. 2d 483 (1993).
Seealso, Issue VII infra.
I n conclusion. this Court should order a new penalty trial for Appellant where testimony about the jogger incident is either excluded as irrelevant o r else presented only by Philip Bolin, the sole witness tothe incident.
ISSUE VII
THE SENTENCING JUDGE ERRED BY FIND-
ING THAT THE COLD. CALCULATED AND
PREMEDITATED AGGRAVATING CIRCUM-
STANCE WAS PROVED.
Support of Sentence of Death," the judge started from this Court's pronouncement in Rutherford v. State, 545 So. 2d 853 (Fla. 1989) that the cold, calculated and premeditated aggravating circumstance "is not confined to contract or executionstyle murders" (R179, see Appendix)" However, the sentencing judge ignored the facts in Rutherford (plan formed weeks in advance to force victim to write alargecheck and then kill her i n manner that would appear to be an accidental drowning) which far med the basis of this Court's statement o n the aggravating factor.
evidence of any careful plan in Appellant's killing of Teri Matthews. The limited evidence available suggests a chance encounter between Bolin and Matthews at the Land O'Lakes post office. One can only speculate as t o how Bolin induced Matthews to accompany him. The semen stain left o n the victim's pants leg indicates that the attack on Matthews probably had asexual motivation. The only reason ever given for her killing [she had been involved in a drug deal (T461)] seems patiently absurd.
The totality of these circumstances is most like those presented in Gore v. State, 599 So. 2d 978 (Fla.), cert.den., kidnapped his female victim. took her to a remote area. and killed her. However, there was no evidence o f the circumstances surrounding the murder itself. Therefore, this Court found it possible that the murder resulted from "a robbery or sexual assault that got out of hand." 599 So. 2d at 987. Because there was no evidence o f " a calculated plan t o kill" the victim. the Gore court struck down the cold. calculated and premeditated aggravating circumstance.
the evidence tends to suggest a sexual assault that got out of hand. While Bolin may have "prowled the streets" [in the sentencing judge's words
evidence in the Teri Matthews homicide is devoid of any careful plan o r pre arranged design to kill her. Cf., Rasers v.
State, 511 S o. 2 d 526 (Fla. 1987), cert.den.. 484 U. S. 1020 (1988).
The question remains as to whether the evidence from Bolin's other crimes can support the cold, calculated and premeditated aggravating circumstance. The decision of this Court most relevant on this point is Crurnp v. State, 622 So. 2d 963 (Fla. 1993).
Williams Rule evidence was admitted in Crurnp t o show that the defendant had a pattern or picking up prostitutes, binding them, strangling them, and discarding their nude bodies near cemeteries.
This evidence was insufficient to prove the cold, calculated and premeditated aggravating circumstance because the State did not prove beyond a reasonable doubt that Crump had careful pre arranged plan to kill the victim before inviting her into his truck.
Comparing the case at bar to Crump. there is even less reason t o find the cold. calculated and premeditated aggravating factor here. Crimp had a restraint device in his truck which he used to hold his victims while he bound their wrists. Bolin, on the other hand, made no such careful preparations. Also, Bolin's victim in Ohio. Jenny LeFever, was eventually released after the kidnapping and rape ordeal. This suggests that Bolin did not necessarily intend to kill Teri Matthews when he encountered her at the Land O'Lakes post office. Cf. Power v. State. 605 So. 2 d 856 (Fla.
(1992). cert.den.. -u.s.-, 113 S. Ct. 1863, 123 L. Ed. 2d 483
(1993) (impossible to infer premeditated design to kill when previous similar crime did not result in death of victim).
Because the penalty jury heard both irrelevant testimony from Sergeant Kling and the prosecutors misleading legal argument a s to the applicability of the cold. calculated and premeditated aggravat ing circumstance, Appellant should now be granted a new penalty trial before a new jury. a, Jones v. State. 569 So. 2d 1234 (Fla. 1990); Trotter v. State, 576 So. 2d 691 (Fla. 1991); Omelus
v. State, 584 S o. 2d 563 (Fla. 1991).
THE TRIALJUDGEERRED BY INSTRUCTING
THE PENALTY JURY THAT ESCAPE ISA
VIOLENT FELONY QUALIFYING FOR THE
AGGRAVATING CIRCUMSTANCE.
d 499 (Fla. 1985), this Court consideredapenaltyphaseinstructiongivenbythe trial judge stating that burglary is a crime of violence. Citing Mann v.
578 (Fla. 1982), theJohnsoncourtremarkedthat whetherornot burglary lisa crime of violence depends upon the facts of offense. The courtheldr simply to instructthejuryatthesentencing phaseofacapitalfelonytrial that burglary isafelonyinvolving the useorthreatof violence for purposesofapplyingtheaggra - vatingcircumstanceinsection 921.141(5)(b), without making clearthatthisdependsonthe facts ofthe burglary, is error.
Similarly, i n Sweet v. State. 624 So. 2d 1138 (Fla. 1993).
this Court found error i n an instructionthatpossession of a firearm by aconvictedfelonqualifiedasapriorviolentfelony.
The jury must be instructed "that they had to consider the individualcircumstancesofthe crime inordertodetermineifit wasviolentbefore weighing it asapriorviolentfelony. " 624 So.
2d at 1143.
A t bar, during the penalty charge conference, the judge recognizedthedefenseobjectiontotheproposedinstruction on the prior violent felony aggravating factor (R1131). However. he overruled it, stating:
Ithinkheretheescape and feloniousassault arebasicallywrapped up allinonepackage andeachinvolvednotonlythe potential of violence butthe actual infliction of vio - lence.
The crimesofrape, kidnapping, felonious assault, and escape are feloniesinvolvingthe useoforthreat of violencetoanotherper - son.
Therearetworeasons why this instruction was error. First, Bolin ' s Ohio convictionsforfeloniousassault and escape derived from asingleincident where he hitajailguardwithapipe and attemptedtorunoutofthefacility (T956-7). The two convictions should be classified as one violent felony (feloniousassault) and one non violent felony (escape). Accordingly, the judge a t bar shouldnothavementionedtheescapeconviction when instructing
Alternatively, if the jury should have been permitted to consider the escape conviction, the judge should not have decided for himselfthatit was aviolentfelony. I n accord with Johnson and Sweet, supra, thejudgeshould have leftthisfindingtothe jury by instructingthentoconsiderthecircumstances of the crime
The question remains as towhetherthisinstructionalerror was harmless. I n Johnson and Sweet, this Court concludedthatsimilar error was harmless. A t bar, however, the penalty proceeding was infectedwithothererrorssuchasdenialofconfrontation anddueprocessinthehearsaytestimonyof Sergeant Kling (Issue VI) and erroneous consideration of the cold, calculated and premeditated aggravating circumstance (Issue VII). Viewed in combination with the other errors. the penalty jury instruction error produced acumulative effect which denied Bolinthe reliable capital sentencing proceeding guaranteed by the Eighth and Fourteenth Amendments. United States Constitution. Anew penalty proceeding should be ordered.
CONCLUSION
Based on the foregoing argument, reasoning and authorities, Oscar RayBolin, J r., Appellant, respectfullyrequeststhisCourt t o grant him reliefasfollows:
AstoIssues VI through VII. vacationofdeathsentenceand remand fora new penalty proceeding before new jury.
Respectfully submitted,
Public Defender Assistant Public Defender TenthJudicial Circuit FloridaBar Number 350141
(813) 534-4200 P. 0. Box 9000 - Drawer PD Bartow. F L 33830
APPENDIX
PAGE NO.
1. Order Conditionally Granting State's Motion to Admit Williams' RuleEvidence
2, Findings in SupportofSentence of Death
IN AND FOR PASCO COUNTY, FLORIDA -v SATE OF vs. CASE NO. 91-ooS21CFAWs-o3 WAR RAY Born, JR.
THIS CAUSE HAVING COME More the Cant upon the State's Motion to A M Williams' Rule Evidence and thecorXrtbavkg hrd the Wmny of L€zBak ~ oftk m g h County Sheriffs Ofika d the arguments of the attorneys and the Court Ixbg dberwisc M y advised in the prtmists, it is ORDERED AND AbJUlXED as follows: (a) Based upon the lkdcd ttxtkmy presented to the Courtatthispointiatimc, the Courtcaanotatablishthatthe &fendardhasboro positively with the two w€Iatadmima that have €XXYI speci fied. Such a psifive csoanectiooismbym,407S o. 3 247 (Fla. 2d D.C.A. 1981). In view ofthe fad that such apositive c dbasnatkn &mwsbated to the Court on the record, my rulings madc berein must, ofdty, te c0oditicma.l. @) It is assuined by the Court tbath 'similar fact" evidence pr@ by the State is king admitted for purposes of establishing identity. Tbe evidence preseatd to the Court 8s of the date of this Order is iosufficied to establish the exad purpose of the "similar fact" evidence and, therefore, the Court is making the (na. 1981):
A mere general Similarity will not render the similar facts legally relevant tho identity. There must l x idenlifiabk points of simkity which pen& tbe compared factual situations. Given sufficient Simitarity, in order for tbe sirnilat to lx rekvant, the points ofsimilarity must have some +al chancter m. be SO unusual as to pint
common tht following factors:.(I) AU have matching black fibers on tbtir Mes with two of them also having matching nxl fibers CHI their W e. (2) Two of tbc decedent were missing their shoes. (3) Two of t h decdents wert wrappedinhospitditems. (4) Tbcsamctwoda%htsthatwerewrappedin hospital items were last seen near state Rod 41, arced which runsthroughbdh -. €!uldmughand Pasco Countia. \ that moretbiln a general similarityhasbtw established. Tbe cwrt finds that a unique sad unusual pattern of criminal activity has b estabZ&bed which allows evidence of t k cokkal crimes to be admitted at the trig of the hve-style case uader Florida Statute 90.404, sub* to the ilmmctions called for UnLr Florida statute 90.404(2)(b)(2).
INTHE CIRCUITCOURT OF THE SIXTH ~C~DIC~PLL CIRCUIT
IN AND FOR PASCO COUNTY, FLORIDA
STATE OF FLORIDA
CASE NO. CRC 91-00521 CFAWS-03
evihe presentd at tbe sentencing w g, the Court maJm the following findings as required in Florida Statute 921.141(3):
coult InakatIle flowing finding of fact:
The defendant was previously convicted of and capital felony or of a felony involving the use of threat of violence to another pawn. Evicknce presented during tbc sentencing pba~ecEeariy estabIishe~tkat the defendant bas\~eencon* of first degree murder rn two previous axasbns and, in &ition to his convictions for k capital felonies, t defendant JUS atso previous~ybeen Avid of Ednapping, 'rape, escape a ~ felonious Tbere is aJmlukly w contradictloo coxerning bfa-. Although the escape might wl be considered violent in aad of itself,; it was clearly established by the State that the feloaious assa ~ was upon a guard and was perpztntd in an extremely violent fashion during the course of the escape attempt. Even if tbe defendant's prior convictions for first degree murder should Ix reversed ou appeal, aad the Court achwledges that those cmvictions are presently unek @, the remaining convictions set forth in this paragraph wwld still convince this Court that tbe State has clearly established this aggravating factor and that it is entitled to great weight.
outsd, the court ackwwledges that this aggravating factor requires tbe establishment of a heightad level of premeditation beyond t k level of premeditation which is wusuy to justify a conviction of premeditated fit.st &&nee murder. The Court hds that the State bar clearly established such a heightened level of premeditation in this case. The case law &lish tbat this aggravating factor is not coufmed to contract or execution-style murders.
853 (Fla. 1989). The combination of tbe similar fact evidence concerning the HiWmrwgf~County murders and the evidence concerning tbe kidnapping and rape of a young woman in tbe State of Ohio clearly wtablish a pattern c€emoastrathg tk defendant's deplorable attitude toward ywng women. With the possible exception of one of the to bave motivated the ldlIings perpetrated by the defendant. Nothing of significance was taken in two of the tbm murders and, in f a jewelry and otk, items of value, such as tbe contents of a purse, were deliberately left untwched and, other than evidence of cme %men stain 011 the clothingof the victim in the insrnnt kse, w evidence of sexual assault has ken developed in any of the murders. Under the circumstances, the Corn concludes that t& defendant's only mtivatioo in at least two of the three murders was to perpdmte a completely brutal and vicious assault upon innocent young wo!neon who had had no prior dealings with the defendant. Tbe evidence indjcxks that the defendant prowled the Stt, meets, seledag his helpless victims at random merely becaw k y were young women and alone. This factor is also assign4 great weight by th!court.
or cruel. The Court bchowledges tbat this factor is consbud and has bin construed by this Court in a very oarrow fashion and app only to consc*eoceless(K pitiless murders that are unnecessarily torturous to t t victim.
Court acknowledges that actions pwpetratd upon an unconscious victim cannot form ttK basis fcr this aggravating factor. In the evidence atablished during tbe course of tbe trial, it is clear that the defeo dant arrived at his step brother's house with the victim's body in cloth. The step-brother Wied that he bard sounds comhg from Within the material in wbichthe body was wqpd aad he described those sounds as s0und.s that reminded him of a dog that had been run over by a motor vehicle. It is obvious that the unfortunate victim was still alive when the &fenchat arrived at his step brother's borne. The state cal..rJ &listed that tbe defendant tea pmdd to viciwsly beat the victim with a club-like implement until the scwnds and, sadly, the victim's life, cased. Tbere was atso evidence mncerning a defensive wouad on we of tbe victim's hands, however, tbe medid examiner conceded that this cruise d d have cod in ways other than the, victim attempting to defend herself against a perceived attack. However, the medid examiner also indicated that there were rmmerws stab wounds present w the victim's body would have almost certainly inflicted &reat pain u p the victim. Tbe Court notes that the majority of these painful wounds were to the fnmt of the victim's My. Altfiougb the Court does give weight to this factor, the Court e~tpresslyfinds that tbe absence pf this factor would have I#) effect upon tbe sentence imposed by the Court.
Stame 921.141(6). The Court sp5ficaUy finds as follows:
of ‘reasonable certainty' the Court clearly finds that tbc defendant was apprOXimately twenty-four (24) years of age at the time of t k offense and is m approximately thirty (30)years of age. The court has serious doubts that relative youth on tbc part of the defendant is, standing alone, sufficient to &lish this stammy mitigating ktw.
Even if such relative youth were &termmd * to k a mitigating factor in aad of itself, there arc no other factors linked with the defencka's relative youth which would permit tbe C m to aa#d this mitigating faarx any significant weight.
triggered by stress Centeriog on tbe defendant's wife's dic - a lproblems and bospiralization due to problem pregnancies, tbae is pious little e/ick= &tion would go out of his way to h kha wit inforqratim concerning his outrageous a cmemptible conduct. In addition, it sbuld be noted that the defwdant's own expert was cldy unable to testify that the defendant's ability to conform his conduct to the requirements of law Was &sima& * impaired. In contrast, Dr. Sidney Merin, the expert called to mify on behalf of the State was quite definite in opening that, although a possibility of fetal alcohol expire existed, there was DO evidence whatsoever of organic brain damage and no indication that the defendant's ability to conform his conduct to the require men& of the law was even makrately impaired, much less subsbzrtially impaired. Having considered thae matters, the Cwrt assigns them onty slight weight
to non-statutory mitigating factors, the defendant presented extensive youth. Setting aside the fact that much of this information m e from the defendant's family and was ooc actually vaifed by any impartial sou~ct, it would appear thatthe majority ofthe alleged bead injuries were little more than the mmd injuries suffered by most active children during tbe cocrrse of their d y Livts. On the other hand, Dr. Berland was able to verify an extremely series suicide effort on tbe part of the defendant whkh may well have deprived bis ln-ainof oxygen for a significant amount of the. Despite this tcsthony, Dr. MCrin pruided powerful caxeding the likelihood tbat some amount of brain damage may have occurred as a result of carat can assign wlyIninid weight tothis factor.
e defendant rn emotionally, physically and possibly sexually abused as a child, the Carta@ notes that this idmnation was provided *, july by tbe defendant's mother and sister. Tbc evidence also indicted that tbe defendant's mother suffer from an extremely serious alcohol abuse problem and that the sister bas hwself suffered from mental problems. The testimony provided by the defendant's family memkrs was not corroborated in any fashion and is, of course, provided by individuals who have a significant interest in tbe sentence to k imposed in this case. Under tbe,- the Cwrt finds that t k defcodant bas established that he was crnoth.aJly, d sexually abused under a stan dad of 'reasonable ccminty”, however, the Colat, physically a previously set forth herein, accord little weight to this mitigating factor.
this ephk to have made an extremely serious e m to commit suicide by hanging himself. Wbile tbe Coat bas considered this factor, tbe Cwrt finds tbat the defendant's consideration of suicide many y m before tbe instant offense is oot a mitigating factor which can be affwded my Significant weight by tbe Court. Simitsrly, tk Court xhwldges that tbe defendant has establish to a ” del certainty” tbe fad that tkbasafbmily hismy ofmental illness. His family historyofmntal illness seems to have bad of the ckd~penalty. Tbe Court hereby determines that are sufficient aggravating fa- in existence tojurrify tbe sentence yf death aod that there are irwJfficiwt mitigating circumes to even come close to outweighing the aggravating circumstances that have ken established, The Court bas considered tbe possibility that one or bth of &hedefendant's previous convictim for first degree murder may t x overturned on appeal and the Court hds that, even
case, the mitigating circumstances established by the defense would stiU be insufficient to outweigh the remaining aggravating cKcumstaDces that have k n relied upon by tbe Court DONE AND ORDERED hChamhh New Port Rkhey, Pasco County, Florida this
Circuit Judge Copies furnished to:
CERTIFICATE OF SERVICE
Suite700, 2002 N. Lois Ave., Tampa, F L 33607, (813) 873-4730, on this27gday of February. 1994.
Respectfully submitted.
JAMES MARION MOORMAN DOUGL ~s. CONNOR Public Defender Assistant Public Defender Tenth JudicialCircuit Florida Bar Number 350141 (813) 534-4200 P. 0. Box 9800 - Drawer PI1 Bartow, FL 33830
FILED
IN THE SUPREME COURT OF FLORIDA
OSCAR RAY BOLIN, JR.,
Appellant, vs. Case No. 80,794
STATE OF FLORIDA,
Appellee.:
APPEAL FROM THE CIRCUIT COURT
IN AND FOR PASCO COUNTY
STATE OF FLORIDA
REPLY BRIEF OF APPELLANT
JAMES MARION MOORMAN
PUBLIC DEFENDER
TENTH JUDICIAL CIRCUIT
ASSISTANT PUBLIC DEFENDER
FLORIDA BAR NUMBER 350141
Public Defender's Office Polk County Courthouse
P. 0. Box 9000--Drawer PD Bartow, FL 33830
(813) 534-4200
ATTORNEYS FOR APPELLANT
TOPICAL INDEX TO BRIEF
PAGE NO.
ISSUE I
APPELLANT WAS DENIED DUE PROCESS OF
LAW WHEN THE STATE OBTAINED A FAVOR-
ABLE PRETRIAL RULING ADMITTING COL-
TIES CONNECTING THE COLLATERAL
ISSUE I1
APPELLANT WAS DENIED A FAIR TRIAL ON
THIS PARTICULAR CHARGE AND DUE PRO-
CESS OF LAW BECAUSE THE PROSECUTION
WAS PERMITTED TO MAKE THE COLLATERAL
CRIMES EVIDENCE A FEATURE OF THE
ISSUE I11
THE COLLATERAL CRIME EVIDENCE SHOULD
NOT HAVE BEEN ADMITTED BECAUSE THE
HOMICIDES OF NATALIE HOLLEY AND
STEPHANIE COLLINS WERE NOT SUFFI-
CIENTLY SIMILAR TO THE CASE AT BAR
AS TO BE ADMISSIBLE ON THE ISSUE OF
ISSUE IV
THE TRIAL JUDGE ERRED BY FAILING TO
CONDUCT ANY INQUIRY WHATSOEVER INTO
POSSIBLE JUROR MISCONDUCT WHEN APPE-
LLANT'S REQUESTS FOR INQUIRY HAD A
TOPICAL INDEX TO BRIEF (continued) ISSUE V
THE TRIAL COURT ERRED BY FOLLOWING
THE RULING FROM APPELLANT'S PRIOR
TRIAL IN HILLSBOROUGH COUNTY THAT
LEGE.ADMISSION OF THE MARITAL
COMMUNICATIONS WAS REVERSIBLE ER-
ISSUE VI
THE TRIAL COURT ERRED BY ALLOWING
SERGEANT KLING TO TESTIFY IN PENALTY
PHASE ABOUT AN INCIDENT WHICH PHILIP
BOLIN RELATED TO HIM BECAUSE APPEL-
LANT WAS DENIED HIS SIXTH AMENDMENT
RIGHT TO CONFRONTATION OF ADVERSE
ISSUE VII
THE SENTENCING JUDGE ERRED BY FIND-
ING THAT THE COLD, CALCULATED AND
PREMEDITATED AGGRAVATING CIRCUM-
THE TRIAL JUDGE ERRED BY INSTRUCTING
THE PENALTY JURY THAT ESCAPE IS A
VIOLENT FELONY QUALIFYING FOR THE
TABLE OF CITATIONS
CASES PAGE NO.
Bolin v. State, Crump v. State, Duncan v. State, Gislio v. United States, Justus V. State, Nasue v. Illinois, Rhodes V. State, State. DiGuilio, State v. Lee, UnitedStatesv. Koiavan, iii
STATEMENT OF THE CASE
Appellant will rely upon the Statement of the Case as presented in his initial brief.
STATEMENT OF THE FACTS
Appellant will rely upon the Statement of the Facts as presented in his initial brief.
ARGUMENT
ISSUE I
APPELLANT WAS DENIED DUE PROCESS OF
LAW WHEN THE STATE OBTAINED A FAVOR-
ABLE PRETRIAL RULING ADMITTING COL-
TIES CONNECTING THE COLLATERAL
CRIMES.
In her brief, Appellee does not contest Appellant's assertion that the prosecutor misrepresented the evidence before the trial judge when he obtained a favor able pretrial ruling allowing collateral crime evidence to be presented at trial. Instead, Appellee asks that this Court find a procedural bar because defense counsel did not discover the misrepresentation until the appellate record was carefully examined. In other words, Appellee would have the State rewarded for successfully deluding the trial judge by insulating the misrepresentations from attack on appeal.
Appellee also seeks to excuse the State's conduct. For instance, she writes: “Corporal Baker made it clear to the court that he was testifying from reports and that he wasn't positive as to all of the evidence. Brief of Appellee, p. 4. However, an examine tion of the record shows that Corporal Baker only said that his knowledge of the Pasco County (Matthews) case was limited to "what I've read and what I've seen" (R309) The misrepresentations of evidence concerning the alleged pattern of missing shoes and the crime scene locations had to do with the Hillsborough County cases.
Moreover, Corporal Baker was asked:
Q Are you familiar with the death investigation as it pertains to all three girls? (R291) He replied, "Yes sir" (R292).
Appellee also asserts that "The court told defense counsel that if at the end of the hearing he had a problem with the evidence that was presented that he could tell the court how it differed and the court would reserve ruling." Brief of Appellee, p.4.
However, the record reflects that the context of the trial court's remark was limited to any discrepancy between Corporal Baker's opinion on the cause of death of the victims and the medical examiners reports (R292-4). Again, this was not the area where the significant misrepresentations occurred.
Another question is whether defense counsel had a reasonable obligation to discover all of the evidence which the State possessed in the collateral crimes from Hillsborough County. Only if Appellant knew that the State had Natalie Holley's shoes in evidence could he have effectively rebutted the State"smisrepresentation which led the trial judge to conclude "Two of the decedent were missing their shoes" (R71). Appellee cites no authority for her assumption that the burden rests on Appellant to discover all misrepresentations. Rather, as Appellant contended in his initial brief, the prosecutor has an obligation to correct false testimony Finally, Appellee contends that any error was harmless. Since two of the four factors cited by the trial judge in allowing collateral crime evidence were founded only on the State's misrepresentations, there is a reasonable possibility that the judge's ruling would have been different had he known the true facts. The collateral crime evidence was such a significant part of the evidence which the jury considered that any error in its admission cannot be harmless. State v. Lee, 531 So. 2d 133 (Fla. 1988);
State v. DiGuilio, 491 So. 2d 1129 (Fla, 1986).
The remaining question is the proper remedy for the State's misrepresentation of evidence. In United States v. Kojavan, 8 F.3d 1315 (9th Cir. 1993), the Ninth Circuit considered similar prosecutorial misstatement of evidence. The court observed:
In determining the proper remedy, we must consider the government's willfulness in committing the misconduct and its willingness to own up to it.
at 1318. Because the government attorney on appeal failed to acknowledge the seriousness of the prosecutors misconduct at trial, the Kojayan court not only reversed the defendant's convic tion; it further remanded the case for a trial court determination "whether to retry the defendants or dismiss the indictment with prejudice as a sanction for the government's misbehavior".
8 F.3d at 1325.
Appellee has also sought to minimize the failure of the prosecutor to correct the misrepresentations of evidence upon which the trial judge relied in his ruling. It is often said that the prosecutor has an ethical responsibility to seek justice and to avoid over reaching in order to convict. When a conviction is reversed because of prosecutorial misconduct the taxpayers' resources are squandered if a retrial is required. It is therefore appropriate that the judiciary exercise its supervisory powers by holding a hearing in the trial court to determine whether misconduct on the State's part should be sanctioned by dismissal of the indictment or whether the State should be allowed to retry the defendant.
Accordingly, Appellant requests this Court to not only vacated his conviction for first degree murder, but also to order the trial court to determine the appropriate sanction for the prosecutors misconduct at trial coupled with Appellee's failure to acknowledge the ethical violation on appeal.
ISSUE TI
APPELLANT WAS DENIED A FAIR TRIAL
ON THIS PARTICULAR CHARGE AND DUE
PROCESS OF LAW BECAUSE THE PROSECU-
TION WAS PERMITTED TO MAKE THE
COLLATERAL CRIMES EVIDENCE A FEA-
TURE OF THE CASE.
In her brief, Appellee denies that the collateral crime evidence became an improper feature of the case and cites authorities for the proposition that the volume of evidence alone does not establish error. At bar however, the nature of the evidence as well as its volume prejudiced Appellant. In Duncan V. State, 619 So. 2d 279 (Fla. 1993), this Court held that it was error to permit the State to introduce into evidence a photograph of the victim of a prior unrelated homicide committed by the defendant.
At bar, not only were there numerous photographs of the bodies of Natalie Holley and Stephanie Collins in evidence; there was extens ive physical evidence and medical examiner testimony admitted as well. As in Duncan, the prejudicial effect of this collateral crime evidence clearly outweighed its probative value. See also, Rhodes v. State, 547 So. 2d 1201 at 1205 (Fla. 1989) (testimony about physical and emotional trauma suffered by victim of collateral crime was highly prejudicial and outweighed probative value).
It should also be remembered that the deposition of Bolin's ex-wife, Cheryl Haffner read into evidence, provided great detail with reference to the Holley and Collins murders, but very little concerning the case at bar. This plethora of highly prejudicial evidence concerning the collateral crimes ensured that they became a feature of the case for which Bolin was actually on trial. Accordingly, Bolin's conviction for the homicide of Teri Matthews must be reversed and a new trial held.
ISSUE I11
THE COLLATERAL CRIm EVIDENCE
SHOULD NOT HAVE BEEN ADMITTED BE-
CAUSE THE HOMICIDES OF NATALIE
HOLLEY AND STEPHANIE COLLINS WERE
NOT SUFFICIENTLY SIMILAR TO THE
CASE AT BAR AS TO BE ADMISSIBLE ON
THE ISSUE OF IDENTITY.
Comparing the case at bar to that of Crump v. State, 622 So.
2d 963 (Fla. 1993), Appellee claims that the common features of the three homicides, taken together, "establish a sufficiently unusual pattern of criminal activity". Brief of Appellee, p.20.
Appellee notes the fact that all three victims were white females between the ages of 17 and 26. Each had been abducted from her vehicle or while returning to it; each had been murdered at a different location; and the bodies were all dumped in rural areas. The only problem with this "unusual pattern of criminal activity" is that it fits other cases as well. For instance, in Justus v. State, 438 So, 2d 358 (Fla. 1983), the female victim was abducted at gunpoint from her vehicle in a parking lot of an Eckerds drugstore.' She was transported to a dirt road in Pasco County, where she was killed and her body abandoned.2 Appellee over states the other common features of the homicides in her brief. First, she states that "two of the victims were wrapped in sheets and towels from St. Joseph's Hospital".
Stephanie Collins was also abducted from the parking lot of a Hillsborough County Eckerds Drugs (R496-7).
'The body of the victim in the case at bar, Teri Matthews, was also found off a dirt road in Pasco County (T227).
Brief of Appellee, p.20. In fact, the body of Teri Matthews was found wrapped in a sheet marked St. Joseph's Hospital (T239-40);
while the body of Stephanie Collins was wrapped in a towel marked "hospital property" (T399). As Captain Terry testified, the only similarity was that both the sheet and the towel "had the word 'hospital' on them" (T497).
Second, Appellee's brief states that "matching black and red fibers were found on all three girls". 'Brief of Appellee, p.20.
In reality, the fiber evidence was much less conclusive as this excerpt from Corporal Baker's testimony reveals:
Q Okay. Now, these fibers, isn't it true that Mr. Malone, who was the fiber expert, testified that there were black fibers on each of the three girls?
That's correct, Q But because of the fact that they were black, he couldn't really say that they came from the same source; isn't that true?
A That's what he said, yes, sir.
Q Okay. And as ta the red fibers, the -- there were some red woo fibers found on the Matthews girl?
A Yes, sir.
Q And there were some similar fibers found on the Holley girl?
A Yes, sir.
Q There wee also some other red fibers on the Matthews girl which were similar to some red fibers found on the Collins girl?
A That's correct.
Q But the red fibers on the Holley girl were different and didn't match the red fibers on the Collins girl; right?
A That's correct.
Q And in fact, Mr. Malone could not say where these red fibers came from, other than they came from a similar source?
A That's correct.
And Mr. Malone had absolutely no evidence presented to him with which he could connect any red fibers to Oscar Ray Bolin, did he?
A That's correct.
Finally, this Court should recognize that these homicides took place in 1986; while the task force to investigate the links between the three was not formed until July 1990 (T487-8).
Coincidentally, this was the same month that Danny Coby went to the Indiana authorities with information leading to the arrest of Bolin for the three homicides (T488-9). Clearly, the task force was created because Bolin was accused of all three homicides and not because someone noticed a unique pattern of criminal activity linking them.
Accordingly, the collateral crime evidence admitted against Appellant showed only a propensity to murder young women rather than a compelling modus operandi which would identify Bolin as the murderer of Teri Matthews. Appellant should be granted a new trial at which the collateral crime evidence will not be allowed.
ISSUE IV
THE TRIAL JUDGE ERRED BY FAILING TO
CONDUCT ANY INQUIRY WHATSOEVER INTO
POSSIBLE JUROR MISCONDUCT WHEN
APPELLANT'S REQUESTS FOR.1NQUIRY
HAD A REASONABLE BASIS.
Appellant will rely upon his argument as presented in his initial brief.
ISSUE V
THE TRIAL COURT ERRED BY FOLLOWING
THE RULING FROM APPELLANT'S PRIOR
TRIAL IN HILLSBOROUGH COUNTY THAT
LEGE. ADMISSION OF THE MARITAL
COMMUNICATIONS WAS REVERSIBLE ER-
As Appellee concedes, this Court has already decided this issue in Bolin v. State, Case No. 7 8, 468 (Fla. April 21, 1994).
Since the filing of Appellee's brief, rehearing has been denied;
the man date issued July 20, 1994. The arguments presented in Appellee's brief have already been considered and rejected by this Court when the State's motion for rehearing was denied in Case
The only remaining question posed by Appellee's brief is whether the error in admitting the marital communications was harmless beyond a reasonable doubt. Appellee points out that there was other evidence supporting Bolin's conviction for the murder of Teri Matthews. However, harmless error analysis is not concerned with whether a defendant would be convicted on retrial.
As this Court explained in State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986):
correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is an the effect of the error
The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state.
491 So. 2d at 1139.
the deposition testimony of Cheryl Haffner was filled with privileged marital communications, particularly concerning the two collateral homicides. By reversing Bolin's conviction in Case No. 78,468, this Court necessarily found that the marital communications were harmful error as to that conviction.3 Thus, the jury at bar considered testimony found to be harmful in another case as well as other collateral crime evidence supporting convictions which have been reversed. This was a substantial portion of the State's case and the jury clearly must have considered it when reaching their verdict. Accordingly, the error cannot be harmless.
31n Case No. 78,905 this Court also issued an opinion on April 21, 1994, reversing Bolin's conviction. However, an order rendered June 27, 1994, granted the State's motion for rehearing to the extent that an oral argument was scheduled.
ISSUE VI
THE TRIAL COURT ERRED BY ALLOWING
SERGEANT KLING TO TESTIFY IN PENAL-
TY PHASE ABOUT AN INCIDENT WHICH
PHILIP BOLIN RELATED TO HIM BECAUSE
APPELLANT WAS DENIED HIS SIXTH
AMENDMENT RIGHT TO CONFRONTATION OF
ADVERSE WITNESSES.
the authorities cited in his initial brief, Appellant direct this Court's attention to the decision of Rhodes V. State, 547 So. 2d 1201 (Fla. 1989), where this Court wrote:
Although this Court has approved the introduce ion of testimony concerning the details of prior felony convictions involving violence during the penalty phase of a capital trial, (citations omitted), the line must be drawn when that testimony is not relevant, gives rise to a violation of a defendant's confrontation rights, OF the prejudicial value out weighs the probative'value.
1204-5. At bar, Sergeant Kling's testimony suffer from all three defect; it is not relevant, it violates Appellant's confrontation rights, and the prejudice clearly out weighs any probative value,
ISSUE VII
THE SENTENCING JUDGE ERRED BY FIND-
ING THAT THE COLD, CALCULATED AND
PREMEDITATED AGGRAVATING CIRCUM-
STANCE WAS PROVED.
Appellant will rely upon his argument as presented in his initial brief.
THE TRIAL JUDGE ERRED BY INSTRUCT-
ING THE PENALTY JURY THAT ESCAPE IS
A VIOLENT FELONY QUALIFYING FOR THE
AGGRAVATING CIRCUMSTANCE.
Appellant will rely upon his argument as presented in his Initial brief.
CONCLUSION
Based upon the argument, reasoning and authorities in Issue I, Appellant respectfully requests this Court to vacated his conviction and to remand to the trial court with directions to consider whether to dismiss the indictment as a sanction for the State's misconduct or whether to retry Appellant. Otherwise, Appellant renews his request for the relief he sought in his initial brief.
CERTIFICATE OF SERVICE
I certify that a copy has been mailed to Candance M.
Sabella, Suite 700, 2002 N. Lois Ave., Tampa, FL 33607, (813) 873-4730, on this /5Mday of August, 1994.
Respectfully submitted,
JAMES MARION MOORMAN
Public Defender Assistait Public Defender Tenth Judicial Circuit Florida Bar Number 350141
(813) 534-4200 -
P. 0. Box 9000 Drawer PD Bartow, FL 33830
Supreme Court o€ mrih
OSCAR RAY BOLIN,
Petitioner, VS.
STATE OF FLORIDA,
Respondent.
[February 9, 19951
PER CURIAM.
judgment and sentence of the trial court imposing the death penalty upon Oscar Ray Bolin. We have jurisdiction. Art. V, 5 3 (b) (l), Fla. Const.
The trial of this case was based upon the indictment of defendant for the murder of Teri Lynn Mathews, who was last seen alive on December 5, 1986. Prior to this trial, the defendant was indicted in the Circuit Court of Hillsborough County for the murder of another woman. During the pretrial proceeding in the Hillsborough County case, a discovery deposition was taken by defendant's counsel of the defendant's former spouse. The circuit court ruled that the taking of this discovery deposition by defendant's counsel waived the spousal privilege as to spousal communications afforded by section 90.504, Florida Statutes (1991). The trial court in this case followed the ruling of the Circuit Court of Hillsborough County, reasoning that once the privilege was waived, the privilege could not be asserted in this subsequent proceeding. However, in Bolin v, State, 642 So. 2d 540 (Fla. 1994), we reversed the Circuit Court of Hillsborough County and held that the trial court erred in its ruling that the discovery deposition had waived the spousal privilege.
Therefore, the trial court here, relying on the reasoning of the Hillsborough Circuit Court, also erred in ruling that the spousal privilege had been waived.
We have reviewed the record of this trial and conclude that the error in respect to the spousal communications was not harmless. Regarding these communications, the former spouse testified that she was told by defendant that he murdered a woman who was the manager of a Church's Fried Chicken restaurant, that he had murdered a person whose body was said by the former spouse to have been transported from a trailer in which she and defendant lived to a place off a road in Hillsborough County where defendant dumped the body, and that defendant pointed out a spot off another road and said, "[Tlhat's where the Mathews girl was found.'I We cannot say that this testimony regarding defendant's admissions of murder did not contribute to the jury's determination of guilt. See Koon v. $tate, 463 So. 2d 201 (Fla.), cert. denied, 472 U.S. 1031, 105S. Ct. 3511,
only the communications which are not admissible. The former spouse's testimony as to what she observed is admissible. KPrlin v.
State, 352 So. 2d 45 (Fla. 1977).
Because this case is being remanded for a new trial, in order to facilitated the future proceedings, we will address two other issues raised in this appeal. First, in its brief, the State contends that even if the discovery deposition did not constitute a waiver, a letter sent by defendant to Captain Gary Terry was a valid waiver. This issue was not reached in the trial court because of the error in respect to the ruling that the discovery deposition was a waiver. In our opinion in Bolin v, State, NO. 78,905 (Fla. Feb. 9, 1995), we have set forth the procedure to be followed in determining whether the contents of the letter constituted a waiver.
The issue with respect to the waiver is whether the circumstances surrounding the letter and the content of the letter demonstrate that this defendant voluntarily con sented to law enforcement officers talking with his spouse about her knowledge of his alleged criminal activities.' Because this issue was not addressed at trial, the record is not sufficiently complete for us to determine whether the letter constituted a voluntary consent. If on remand the trial court determines from the circumstances in which the letter was sent and from the content of the letter itself that the letter constituted a voluntary consent to such disclosure, then the marital privilege would be waived pursuant to section 90.507, Florida Statutes.
Bolinls voluntary consent to the questioning of his former spouse about her knowledge of the criminal activities for which Bolin was being investigated would permit his former spouse to testify as to Bolin's statements to her regarding the murder because the statements comprised part of what she knew about his activities.
the court determines, however, that the circumstances together with the content of the letter do not indicate that Bolin voluntarily con sented to disclosure by Coby of what she knew about Bolinls alleged criminal activities, then there was not a waiver.
We address also the point raised in this appeal regarding collateral crime evidence. As set out in section 90.404(2)(a), Florida Statutes:
Similar fact evidence of other crimes, wrong, or acts is admissible when relevant to We note that Florida's Evidence Code does not require that the privilege holder's consent be knowing. See Charles W, Ehrhardt, Florida Evidence, 5 507.1 at 324 (1994 ed.).
prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.
So. 2d 52 (Fla. 1986), this Court emphasized that collateral crime evidence does not become relevant and admissible merely because the offense is the same and it occurs in the same vicinity.
Our review of the record in this case causes us to conclude that the evidence presented concerning the murders of Natalie Holley and Stephanie Collins was not relevant t o prove any of the material facts regarding the issues as delineated in section 90.404(2)(a). We note that the trial judge during the trial expressed grave reservation about the admissibility of this evidence, and in the retrial this evidence should not be admitted during the guilt phase on the basis of section 9 0. 404 (2) (a) and Wi 11i msv. State, 110 So. 2d 654 (Fla.), wrt. denied, 361 U.S.
2d 86 (1959). The evidence does not demonstrate sufficient similarities to come within the rules for admissibility stated in Crumn v. State, 622 So. 2d 963 (Fla.
(Fla. 1990). In those cases, the cumulative effect of the numerous similarities present identifying the defendants. Such is not the situation in this case.
Accordingly, we vacated Bolin's sentence, reverse his conviction, and remand for a new trial.
It is so ordered.
GRIMES, C.J., and OVERTON, SHAW, KOGAN, HARDING, WELLS and ANSTEAD, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
FILED, DETERMINED.
An Appeal from the Circuit Court in and for Pasco County, Stanley Mills, Judge - Case No. 9100521CFAWS-3 James Marion Moorman, Public Defender and Douglas S. Connor, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Appellant Robert A. Butterworth, Attorney General and Candance M. Sabella, Assistant Attorney General, Tampa, Florida, for Appellee
IN THE SUPREME COURT OF FLORIDA
OSCAR RAY BOLIN,
Appellant, vs. Case No. 7 8, 905 STATE OF FLORIDA,:
Appellee.
APPEAL FROM THE CIRCUIT COURT
IN AND FOR HILLSBOROUGH COUNTY
STATE OF FLORIDA
INITIAL BRIEF OF APPELLANT
JAMES MARION MOORMAN
PUBLIC DEFENDER
TENTH JUDICIAL CIRCUIT
ASSISTANT PUBLIC DEFENDER
FLORIDA BAR NUMBER 350141
Public Defender'sOffice Polk County Courthouse
P. 0. Box 9000--Drawer P D Bartow, FL 33830
(813) 534-4200
ATTORNEYS FOR APPELLANT
TOPICAL INDEX TO BRIEF
PAGE NO.
ISSUE I
THE TRIAL COURT ERRED BY RULING THAT
LEGE BY FAILING TO PREVENT HIS EX-
WIFE, A STATE WITNESS, FROM REPEAT-
ING MARITAL COMMUNICATIONS DURING A
DISCOVERY DEPOSITION. ADMISSION AT
ISSUE 11
THE TRIAL JUDGE ERRED BY RULING THAT
THE DEFENSE CROSS-EXAMINATION OF
CHERYL COBY OPENED THE DOOR TO EVI-
DENCE THAT BOLIN HAD COMMITTED A
ISSUE I11
THE TRIAL COURT ERRED BY DENYING
APPELLANT A CHANGE OF VENUE FOR
ISSUE IV
THE TRIAL COURT ERRED BY FAILING TO
CONDUCT A SUFFICIENT INQUIRY INTO
APPELLANT'S PRO SE MOTION TO DIS-
ISSUE V
THE TRIAL COURT ERRED BY GIVING THE
STATE'S SPECIALLY REQUESTED JURY
INSTRUCTION ON THE LAW OF ACCESSORY
TOPICAL INDEX TO BRIEF (continued)
AFTER THE FACT BECAUSE IT DID NOT
PROPERLY RELATE TO THE EVIDENCE AND
COULD BE CONSTRUED BY THE JURY AS A
COMMENT O N THE CREDIBILITY OF THE
APPENDIX
1. Findings in Support of Death
CERTIFICATE OF SERVICE
TABLE OF CITATIONS
@ CASES PAGE NO.
Arias v. State, Bolden v. State, Bowden v. State, Brown v. May, Bryan v. State, Butler, State.
8 Castro v. State, Chiles v. State, COCO v. State, Copeland v. State, Czubak v. State, Davenport v. State, Delsado v. State, Doyle v. State, 0 iii TABLE O F CITATIONS (continued) Driver v. State, Estesv. Texas, Fenelonv. State, Frieson v. State, Griffin. State, Hamilton v. Hamilton Steel Corp., Hamilton. State, Hardwick v. State, Henry v. State, Holsworthv. State.
In re Doc, Jackson v. State, Jenkins v. State, Jonesv. State, Keen v. State, Kerlin. State, TABLE OF CITATIONS (continued) Koon v. State.
Mannins v. State, Michelson v. United States, Murphy V. Florida, Nelson v. State, Nickels v. State, Oliver v. State, Peek v. State, People v. SimpSon.
68Ill. 2 d 276, 12111. Dec. 234, 369N.E.2d 1248 (1977) 22. 2 3 Periuv. State, Perkins. State.
Rideau v. Louisiana.
384 U. S. 333 (1966) 39. 41
Sinaerv. State, TABLE OF CITATIONS (continued) State v. DiGuilio.
State v. Lee, State v. Michaels, State v. Price.
Steinhorst v. State, Sullivan v. Louisiana, Tibado v. Brees, Truly Nolen Exterminatinq v. Thomasson, Tucker v. State.
UnitedStatesv. A.T.T. Co., Whitfield v. State, Wise v. State, Yates v. Evatt,
OTHER AUTHORITIES
STATEMENT OF THE CASE
A Hillsborough County grand jury returned a three-count indictmentonAugust1. 1990charging Oscar Ray Bolin. J r. with the firstdegreemurder, attempted robbery. and kidnappingofStephanie Collins on November 5, 1986 (R1202 - 4). The circuitcourtgranted Bolin ' sMotion for ProtectiveOrdertopreventdissemination of any ofthediscoverymaterialstothemediaor " any other member ofthe general public" on November 2. 1990 (R1879-80). Over defense objection, the State's Motion t o Perpetuate Testimony of the witness Cheryl Coby was granted November 21. 1990 (R1681 - 3. 1881 - 3).
Subsequently. Appellant moved tocontinuethedepositionof Coby, citingthevast amount of discoveryandtheState ' s failure tosupplytapes of conversations between the witness and Appellant inatimelyfashion (R1687-8.1143-54). On January8. 1991, the discovery deposition of Cheryl Coby commenced and Appellant's requestto be presentinpersonwasdenied by the court (R1847- 51.1854-68). The courtalsodeniedAppellantaccesstothedeposi - tionbyelectronicmeans, allowing him onlyto be ina nearby room wherecounselcouldvisit him (R1870-1).
Before the commencement of the videotaped deposition to perpetuated testimony. defense counsel requested that ajudge be presenttorule on objections (R1181,1183). The State contended that if the videotape were ever tobe played for thejury, the courtcouldrule on defenseobjectionsatthat time (R1186).
Limine Regarding Husband / WifePrivilegeseekingtoexcludefromevidence all communications from Appellant to his spouse during the time they were married (R1245-7). At a hearing held on his motion, March 22, 1991, the State contended that Appellant waived the spousal privilege at deposition when his counsel questioned Cheryl Coby about statements she made to law enforcement revealing communications Appellant had made to her during their marriage (Rl060-3). The court denied Appellant's motion in limine, stating that counsel waived the "defendant's husband/wife privilege...
unless Defense counsel can establish ineffective assistance of counsel by competent evidence" (R1273).
Appellant, acting pro se, then filed a "Motion to Discharge Counsel" asserting that he was dis satisfied with his attorneys because they had waived his spousal privilege without his consent
(R1884-5). He requested appointment of substitute counsel (R 18 8 5).
a hearing held April 12, 1991, the court addressed Appellant and told him that his counsel had previously appeared before him and were competent (R1105). He denied the motion for discharge (R1105 - On June 7, 1991. Appellant filed a motion for change o f venue, citing extensive and prejudicial media coverage of Appellant and his alleged crimes (R1321-1411). At a hearing on the motion, held the same date, the trial court "summarily denied" a change of venue until an attempt to seat an impartial jury had been made (R1620, 1625). Later in the hearing, the judge stated that his ruling only affected Appellant's first case set for trial and he would reserve ruling in the case at bar (R1628-9).
Then, on July29, 1991, priortojury selection, Appellant renewed his motion for changeof venue (R1709).
When the panel of prospective jurors was exposed t o a Guardian Angelsdemonstrationadvocatingthedeathpenalty for Bolin. the courtdischargedthe prospective jurors (R1840). Another defense motion for changeofvenuefollowingthetaintingofthejury was denied by thecourt (R1841).
for Changeof Venue" was filed July 30, 1991 (R1464-71). AttheJuly 31, 1991hearing on this motion. theState conceded thatthe publicity had been such that it would not be "prudent" t o attempt t o select ajuryatthattime
(R1637-8). While denying change of venue, thetrialcourt acceded tothe State ' ssuggestionthattrialbecontinued for two months
(R1638.1640-1).
Jury selection commenced on October 7, 1991 (Rl-424).
After questioning of the prospective jurors revealed that eightyone of the hundred inthe venire had knowledge of the case.
beselectedinHillsboroughCounty (R392-4). Thetrialcourtagain denied a change of venue (R394). Defense counsel eventually exhausted his peremptory challenges, requested more, and had to acceptajuror who had prior
t trial, defense counsel moved for a mistrial when the prosecution elicited testimony on redirect examination that Appellant had committed a prior murder in the course of a robbery (R706). The court ruled that defense impeach ment of the credibility of the witness on cross-examination "opened the door" to evidence of the unrelated murder (R708). When Appellant moved for judgment of acquittal, the prosecutor conceded that there was insufficient evidence of the attempted robbery charge
The court granted a judgment of acquittal to Count I1 of the Indictment (R755).
Over Appellant's objection. the Court agreed to gave aState - requested special jury instruction an the law of accessory after the fact although it was not applicable to Appellant (R814. 1493).
The jury returned a verdict of guilty to the first degree murder count (R881, 1516). On the kidnapping count, Appellant was found guilty of the lesser offense of false imprisonment (R881. 1516).
In the subsequent penalty trial, the trial judge denied a defense motion for continuance so that witnesses could be brought to testify (R899). Instead. the prior testimony of Bolin's mother and sister was read to the jury (R916 - 5 3). The jury was instructed on the aggravating circumstance of prior violent felony and the mitigating circumstances of substantially impaired capacity and the catch-all mitigator (R1038-9.1512-3). A recommendation of death was returned (R1044, 1517).
Immediately following rendition of the advisory sentence, the judge proceeded to sentencing (R1047 - 9). After a short recess, the court sentenced Appellant to death for first degree murder and to a consecutive five-year term for false imprisonment (R1050.1520-4).
The court's written "Findings in Support of Death Sentence" stated thatthe prior violent felony aggravating circumstance outweighed the mitigating circumstances of impaired capacity and "nightmarish home environment" as a child (R1526-7). see Appendix).
Appellant's motion for new trial was denied October 22, 1991
(R1115.1529-35). Notice of Appeal was given October 31. 1991
(R1536-7). Jurisdiction lies in this Court pursuant toArticleV.
Section3 (b) (l) of the Florida Constitution and Fla. R. App. P.
STATEMENT OF THE FACTS
A. Guilt o r Innocence Phase Evidence Donna Witmer, mother o f the homicide victim Stephanie Collins, testified that her daughter was asenior student at Chamberlain high school (R451). Stephanie was a member of the chorus group and held a part-time job at an Eckerds drugstore located in the Marketplace North shopping center (R451 - 2). On November 5, 1986.
the witness left for work early in the morning (R453). When her daughter did not come home that evening, she reported her missing
(R453-4). She later found Stephanie‘s car parked in the lot at the Marketplace North shopping center (R454).
A class mate of Stephanie's, Catherine Cumpstone, said that she and Stephanie left school together on November 5, 1986 (R459 - 6 1).
First they stopped at Stephanie‘s house; and then Stephanie drove her home (R461, 464). Stephanie told the witness that she was going to Eckerds (R462). Stephanie was also planning to attend a chorus Keith Copeland was an assistant manager with Eckerd Drugs on November 5, 1986 (R504). Around 4:00 p.m. on that day, Stephanie Collins came into the store and asked if she could work some additional hours (R505). Copeland offered to let her work that night, but she said she had to go to choir practice (R509).
Stephanie left the store after about fifteen o r twenty minutes
(R510). She did not tell the witness what she was planning to do until 7:00 p.m. when chorus practice started (R510).
Jerry Cooley, Stephanie Collins' ex-boyfriend, testified that he was at the Marketplace North shopping center on the evening o f November 5. 1986 (R467-9). He saw Stephanie's car parked there and waited for about fifteen minutes. thinking that Stephanie would be getting off work at Eckerds (R469-71). However. Stephanie did not come out and the witness left (R471).
Hennie Moss and David Fessler were driving to a jewelry store around 4:00 p.m. on November 5. 1986 when they saw Stephanie Collins in the passenger seat of a white van (R771-2,774,784-6).
trying to get their attention (R776,781). Hennie Moss said Stephanie was a very enthusiastic person; she thought Stephanie "was just being silly"
(R776). David Fessler testified that; it looked like Stephanie was arguing with the driver of the van (R785,787). Neither Moss nor e Fessler got a view of the driver's face (R774 ~ 777 ~ 789 ~ 791) A month later. December 5, 1986, the body of Stephanie Collins was found by a Hillsborough County roadside mowing crew (R477-9).
The body was clothed and lying in a ditch beside Morris Bridge Road
body and clothing matched the description of what Stephanie Collins was wearing when she disappeared (R536).
The victim's gold jewelry was also found intact (R543.546-7). The victim was positively identified by her dental records (R542,569).
The medical examiner, D r. Peter Lardizabal. testified that he performed an autopsy on the victim (R569). He found numerous fractured to the skull (R573-5). He found slits in the clothing which Stephanie Collins had been wearing (R570-2). consistent with 0 being caused by a sharp-bladed instrument (R587). He concluded that the cause of death was multiple blunt impact injuries of the head, caused by a heavy metal lic object such as a hammer or piece The police investigation of the homicide was unsuccessful until July 1990 when Danny Coby telephoned Crime Stoppers in Fort Wayne, Indiana, with information he had heard from his wife about the killing (R793). Cheryl Jo Coby had been married to Appellant and was living in Hillsborough County when the crime occurred
(R631-4). She became the State's star witness at trial.
Cheryl Coby testified that on November 5. 1986, Appellant was living in a travel trailer located at a trailer park on Nebraska Avenue (R635-7,641). She was staying with friends because her physical condition made it difficult for her to climb in and out of the trailer (R640-1,669).
1986, Coby was at a Waffle House restaurant with friends (R640-1). Appellant came in and joined them between 7:00 and 8:00 (R641-2). After eating. Bolin asked Coby to leave with him because "he said he needed to talk to me" (R642-3). Coby left and rode with Appellant in his silver and black Ford pickup truck (R646,666) Both Coby and witness Paula Cameron agreed that the only vehicle Bolin owned was a silver and black pickup truck (R524.665-6). No one ever saw Appellant driving a white van at any time during this period (R524.666).
While driving in the pickup, Appellant told Coby that there was a dead body in the travel trailer (R646). Bolin then tried to explain why the body was there (R647). Coby testified that altogether, Bolin gave three version of how the homicide occurred
(R648). In the first two explanations, a "guy" and a *'girl" were at the travel trailer with him and the "guy" killed the "girl"
(R648-9). In the third version, Bolin allegedly confessed that h e killed the girl by hitting her over the head and stabbing her "numerous" times (R649 - 5 0) Coby testified that Appellant backed his pickup truck to the door o f the travel trailer (R650). He went into the trailer while she waited in the truck (R651). Ten or fifteen minutes later, Bolin reappeared with something wrapped u p in Coby's quilt, which he placed in the back of the pickup truck (R651-2). Appellant then e reentered the trailer (R653). He emerged ten minutes later, saying that he had cleaned up and "hosed down the bathroom" (R653).
Bolin drove the truck out to Morris Bridge Road (R653). Then he stopped, took the body out of the back of the truck; and threw it into ditch by the side of the road (R653). He tested to see if the body would be visible in the trucks head lights (R653-4).
returned to the travel trailer (R654). Once inside, Coby saw that everything was wet; she also noticed blood on some curtain, on the wall, and a spot on the carpet (R654-5). She said that a butcher knife with a wet handle was beside the sink (R655).
Coby testified that she didn't ask any more questions of Bolin about what happened (R656-7). A month later. December 5, 1986, she was about to be discharged from a hospital stay and Appellant was visiting in her room (R657). They were watching television news coverage of the discovery of Stephanie Collins' body on Morris Bridge Road (R657-8). During the TV coverage Bolin exclaimed.
"That's her. You know. the travel trailer, that's her" (R658).
Appellant's ex-wife further testified that she never told anyone about this incident until she was about to be married to Danny Coby in April 1989 (R658-9.682). She was angry when she learned that Danny Coby had informed the police in July 1990
When the police first questioned her on July 16. 1990, she denied knowing anything about the case (R660.684). Corporal Baker of the Hillsborough County Sheriff's Off ice told her that there was a large reward offered fora conviction in this homicide (R685.690, 692-3). The potential amount according to the witness was $63,000
(R693). Coby also admitted that she worried about being charged with being an accessory after the fact and was still concerned that she could be arrested (R697-8). She testified that the present availability of the reward money was questionable; but that if it was awarded, she wanted part of it (R698-700).
On redirect examination. Coby said that this wasn't the first time that Bolin had taken her for a drive to watch him cover up evidence of a crime (R705). Coby said that in January. 1986, Bolin had taken her to the scene where he killed another woman in the course of anattemptedrobbery (R706). She provided the police 0 withinformationaboutbothmurders (R713) There was alittlecorroborationofCherylCoby ' s testimony presented. Captain Gary TerryoftheHillsboroughCountySheriff ' s OfficetestifiedthatCheryl Coby wasabletotake him tothe "same approximate location " where StephanieCollins ' body had been found
(R721). Appellant himself wrote anotetoCaptainTerrystating that Cheryl knew aboutthecase ' " becauseitwasherideaon how t o dump the body " (R721-2).
testimony came from the discovery of a head hair. consistent with Bolin's, on atowel wrappedaroundthebodyofStephanieCollins (R730.743) However, there were severalotherhairs from a n unknown originfoundonthe victim ' sbodyandthetowelsandbedspreadssurroundingit (R746- 50). The FBI expert, Mike Malone. also admittedthatthere was no way o f knowing when the hair resembling Bolin's had been transferredtothetowel (R744-5).
B. Penalty Phase Evidence The state's evidence consisted solely of a stipulation publishedtothejurythatBolinhadpriorconvictions for rape and kidnappinginOhioaswellaspriorconvictions for first degree murder, armed robbery and kidnapping in Florida (R914-5) The defensepresentedreadings of priortestimonygivenbyAppellant ' s motherandhis sister. Dr. Robert Berland, aforensic psychologist, also testified.
The testimonyof Mary Baughman, Bolin ' smother, showed that she was nevermarriedto Oscar Ray Bolin. Sr., Appellant ' sfather;
Appellant, the eldest child. was raised inahellish home environment. where the parents fought constantly, both verbally and physically (R917-9). Oscar Bolin,
weeksatatime (R919-20). On several occasions. he threatened Appellant ' smotherwitha gun infront of the children (R922). He physicallyabusedAppellant " wheneverhe feltlikehewantedtodoit " (R923-4).
of the time witheachparent (R924-5). Appellant's mother said that Bolin often returned from the custody of his father " dirty, half - starved to death," barefoot and sometimes bruised (R926).
Nonetheless, Appellantconstantlytriedtorun away from his mother becausehewantedtoresidewiththefather (R925). She restrained him with a dog chain to keep him from running away (R925-6).
However, bytheageof12 or 13. Appellantwaslivingexclusively withhisfather (R928-9). When h e was 17. hemetCheryl; and they subsequently married (R929).
The priortestimonyof Sherry Jauregui, Appellant's sister, was also readtothejury (R940-52). Shesaidthatshe, hersisterand two brothers, grewupin West Liberty, Kentucky (R940-1). The parents "'tried tokill each other all the time" (R941-2). The fatherfrequentlyabusedAppellant, beating him witha baseball bat andadogchain (R942-3). On one occasion, thefatherlockedthe family in the house. doused it with gasoline, and tried to set it on fire (R943). The grandfather prevented him (R943). The witness herself was physically abused by the father in the presence of Appellant (R944). She married at age 14 in order to get away from home (R945).
The testimony of Sherry Jauregui further asserted that Appellant was emotionally devastated by the murder of their brother. Arthur. at age 1 8 (R945. 918 - 9). Bolin was also deeply depressed by the death of his first born son (R946). The witness herself had been diagnosed as suffering from a mental illness
(R951). She was a juvenile delinquent while growing up and twice attempted suicide (R951-2).
Dr. Robert Berland, a board-certified forensic psychologist, testified that h e did an extensive evaluation of Bolin (R957 - 6 0).
He administered the MMPI test on two different occasions (R965).
The results of these tests indicated that Bolin had profiles "fairly typical of people who are psychotic" (R975). On the WAIS standardized intelligence test. Dr. Berland testified that Bolin's scores showed a "clinically significant" deviation indicating damage to the brain (R977-9).
From interviews with Appellant and lay witnesses. Dr. Berland compiled a list of fourteen incidents which could have caused brain injury (R979-80). His mother drank heavily during the pregnancy
3, during an automobile accident, Bolin was thrown into the windshield and broke it (R980). He was knocked unconscious when he was eight o r nine; his sister noticed a change of behavior after this incident (R980). Later at age 17, Appellant tried to hang himself in jail after being arrested (R980-1).
Although he was revived after several minutes, Dr. Berland explained that damage was probably done to brain tissue (R981).
Dr. Berland further testified that he compiled a list o f twelve incidents during Appellant's upbringing which likely affected his emotional development (R987). These included his being moved back and forth between parents and relatives (R987-8).
In one incident, Appellant's father demanded some money from the mother (R988). When she didn't comply, the father shot holes in the floor at Appellant's feet (R988). Bolin was five or six at the time (R988). Dr. Berland characterized Appellant's upbringing as "a pattern of instability and violence" (R989).
Dr. Berland concluded that Bolin had a psychotic disorder characterized by hallucinations, delusions and mood disturbance
attributed the psychosis too combination of brain injury and inherited mental disorder (R990). Appellant was diagnosed a s having an organic personality syndrome and organic mood disturbance (R991). Dr. Berland stated that Bolin acted under the influence of a biologically caused mental and emotional disturbance (R998). While Bolin's capacity t o appreciate the criminality of his conduct was not substantially impaired. his ability to conform his conduct to the requirements of law was substantially impaired (R998-9).
SUMMARY OF THE ARGUMENT
Appellant did not waive the husband-wife privilege which would have prevented Cheryl Coby from testifying about the admissions Bolin allegedly made to her about this homicide at the time they were married. The trial court's ruling that Appellant waived the privilege by failing to file a motion in limine prior to the taking of Cheryl Coby's deposition to perpetuated testimony was error.
Appellant did object to the confidential communications being revealed in the deposition to perpetuated testimony. Defense counsel'sprior inquiry into the communications during the discovery deposition was not a waiver because Coby had previously told law enforcement about Bolin's statements. Defense counsel merely asked to discover what Coby had told law enforcement. Significantly, a protective order had already been granted which precluded Coby's deposition from becoming public record. Indeed, there was no actual public disclosure o f the privileged communications until trial. Also, Appellant had always asserted the privilege personally and had attempted to attend the deposition. He never ratified his counsel's action. If counsel did impair the spousal privilege, it was adverse to Bolin and he should have been entitled to bar the marital communications from coming in at trial. Finally, the privile ged communications were a highly prejudicial and substantial part of the evidence against Appellant. The error in admitting them cannot be harmless.
The trial judge ruled that defense cross-examination of Cheryl Coby opened the door for the State, on redirect examination to elicit testimony about another homicide she had accused Bolin of committing. The judge ruled that attacking the witness' credibility was the factor which opened the door. However. impeach ing the credibility of a witness by showing bias or Self-interest is always a proper purpose of cross-examination. Allowing other crime evidence against Bolin did not serve to rehabilitated Coby; it was merely evidence of Bolin's propensity to commit murder. Even when the defense does open the door by cross-examination, the evidence admitted must still meet the test of probative value outweighing prejudice. Coby‘s testimony about a prior murder, kidnapping and robbery was highly prejudicial and not harmless error.
Highly inflammatory local media coverage of this case and. in particular, speculation about other homicides Appellant might have committed made it evident that Bolin's repeated motions for change of venue should have been granted. The pervasive and prejudicial publicity made it impossible to select an impartial jury i n Hillsborough County. Even if Bolin must further show great difficulty in the actual selection of the jury. this test was met also.
Almost fifty percent of the venire was immediately discharged upon their admission that they could not be impartial. Another thirtyfive percent had been exposed to publicity, but claimed a dubious ability to remain impartial. Appellant exhausted his peremptory strikes. requested more. and identified an unacceptable juror who actually sat on the jury.
After the trial court's ruling that defense counsel had waived the husband-wife privilege. Appellant filed apro se motion to discharge his counsel and have other counsel appointed. Although the trial judge held a hearing on chis motion, he did not allow Appellant to be heard until after he had already denied the motion. The trial court did not follow the procedure mandated by chis Court pertaining to the necessary inquiry when an indigent defendant desires to discharge his court-appointed counsel.
The State's specially requested jury instruction on accessory after the fact was not relevant to the evidence and should not have been given. It was prejudicial to Appellant because the jury could have interpreted it a s the trial judge's comment on the credibility of the State's key witness. Cheryl Coby.
ARGUMENT
ISSUE I
THE TRIAL COURT ERRED BY RULING THAT
LEGE BY FAILING TO PREVENT HIS EX-
WIFE, A STATE WITNESS, FROM REPEAT-
ING MARITAL COMMUNICATIONS DURING A
DISCOVERY DEPOSITION. ADMISSION AT
TIONS WAS REVERSIBLE ERROR.
Section 90.504 of the Florida Evidence Code (1991) sets forth the Husband-Wife privilege:
a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouse while they were husband and wife.
(2) The privilege may be claimed by either spouse.
Since Oscar Ray Bolin and Cheryl Coby were husband and wife at the time when both this homicide and the alleged admissions occurred, the privilege is applicable to Coby's testimony. In fact, the State specifically conceded that the communications between Appellant and his ex-wife could not come into evidence at trial absent a waiver by Appellant of the husband-wife privilege (R1072).
Waiver of privilege has been addressed by the legislature.
Section 90.507 of the Florida Evidence Code provides:
Waiver of privilege by voluntary disclosure. A person who has a privilege against the disclosure ofa confidential matter OF communication waives the privilege if he, o r his predecessor while holder o f the privilege, voluntarily dis closes or makes the communication when he does not have a reasonable expectat ion of privacy, or consents to disclosure of, any significant part of the matter or communication. This section is not applicable when the disclosure is itself privileged communication.
Professor Ehrhardt sums up this provision as meaning that "the party who is the holder of a privilege against the disclosure of confidential communications waives the privilege when the contents of the communication are voluntarily disclosed." Ehrhardt, Florida Evidence $507.1 (1992 edition). A waiver of the privilege lets "the horse out o f the barn" and the privilege cannot be reinstated later. Hamilton v. Hamilton Steel Corp.. 409 So. 2d 1111 at 1114 (Fla. 4th DCA 1982).
bar, defense counsel first invoked the husband-wife privilege during the January 11, 1991, deposition to perpetuated testimony of Appellant's ex-wife. Cheryl Coby (R1061.1074-6). The State
took the position both then and in the hearing held March 2 2. 1991 on Appellant's "Motion in Limine Regarding Husbaod/Wife Privilege" that Appellant had already waived his privilege during the discovery deposition of Cheryl Coby by asking her questions about statements she attributed to her husband (R1061 - 3). The prosecutor argued that Appellant had to elect between having discovery of his former wife's statements to law enforcement and preservation of the husband-wife privilege (R1060-3,1068-70), The court asked defense counsel why, prior to taking the discovery deposition, he didn't file a motion to prohibit the State from elicit ing marital cornmunications during the deposition to perpetuated testimony (R1076-8).
The court eventually ruled that defense questioning of Cheryl Coby about marital communications during the discovery deposition was a waiver of the husband-wife privilege "unless such delving is tantamount to ineffective assistance of counsel" (R1273).
At trial. the court reiterated his finding that "it was a tactical decision well within the realm of effective assistance of counsel to make the decision t o ask Ms. Coby concerning husband/wife communications, hoping that you would find some ammunition that would assist the Defense" (R26). When Cheryl Coby was on the witness stand. defense counsel objected when she was first asked to recount Bolin's conversation with her (R642). The trial judge then granted defense counsel a standing objection to all communications between Bolin and Coby while they were husband and wife (R644-5). The discovery deposition of Cheryl Coby was filed with the court and sealed so that it would not become public record
A. Appellant Did Not Waive the Husband-Wife Privilecre at the Discovery Deposition Because His Ex-Wife. Cheryl Coby. Only Disclosed Marital Communications Which She Had Already Disclosed to Law Enforcement.
is undisputed that Cheryl Coby had already told law enforcement about Appellant's statements during their marriage which tended to incriminate him in the homicide of Stephanie Collins.
Thus, she had already breached the confidential relationship by her voluntary disclosure before the discovery deposition. However.
Appellant retained the power to prevent his ex-wife from testifying at his trial a s to his communications which occurred during their marriage under Section 9 0. 504, Florida Evidence Code (1991). Brown 0 v. May, 76 S o. 2d 652 (Fla. 1954).
The important feature of the discovery deposition is that defense counsel only sought to discover from Cheryl Coby what marital communications she had already disclosed to law enforcement
(R1058-9). The prosecutor took the position that defense counsel had to rely upon '"the police accounts of Ms. Coby's statements concerning what has occurred between these two" or else waive the privilege by asking Coby about the statements "in any type of pro - ceeding" (R1060-1). The trial judge cited Tibado v. Brees, 212 So.
2d 61 (Fla. 2d DCA 1968) and asked defense counsel why a similar waiver had not occurred at bar (R1063-4).
Tibado presented a quite different situation from the case at bar. The husband in Tibado testified voluntarily at deposition about confidential communications between himself and his wife.
Then, he tried at trial to assert the husband-wife privilege to prevent his disclosure from coming into evidence. The Second District correctly held that he waived the privilege by divulging confidential communications in a deposition that was filed a s public record.
however, Appellant did not reveal any confidential communications, so he retained his privilege. His ex-wife only disclosed what she had already told law enforcement. Finally.
Coby's deposition was not and could not be made public in accord with the protective order issued by the trial court (R758-
9,767,1879-80).
Another case heavily relied upon by the State was Tucker v.
(Fla. 1986). In Tucker, the defendant's attorney-client privilege was waived when defense counsel listed his confidential expert psychiatrist appointed pursuant to Fla. R. Crim. P. 3.216(a) as a witness and allowed the State to take her deposition.
Tucker might be on point with the case at bar if Cheryl Coby were a defense witness. However, Coby was always a state witness.
Moreover, she had already disclosed the confidential communications to the State; therefore, the State did not gain information through the discovery deposition as was the case in Tucker. Tucker's rationale is no more than the general rule of law that " any voluntary disclosure by the holder of... a privilege is inconsistent with the confidential relationship and thus waives the privilege."
United States v. A.T.T. Co.. 642 F. 2d 1285 at 1299 (D.C. Cir.
defense because the privileged communications had already been disclosed to the State by Coby's betrayal of Bolin's confidential communications.
Another case for comparison is People v. Simpson, 68Ill. 2d of Illinois held in Simpson that the defendant waived his privilege when he made a public reply to his wife's revelation of confidential communications. The Simpson court emphasized that the wife's disclosure o f confidential communications to police officers while in the defendant's presence did not waive the privilege. However, the defendant's response which admitted the confidential communica- 0 tion acted asa waiver. The court wrote:
When confronted by his prior, privileged statement in the trailer he could have remained silent o r denied having made such a statement. Under these circumstances, the privilege of the communication in the trailer would, no doubt, have been preserved. despite his wife's revelation of that conversation to the police.
369 N.E.2d at 1252.
police and at her discovery deposition. Accordingly. under the rationale of the Simpson court. no waiver occurred because Appellant did not reveal anything himself o r adopt Coby's account.
This Court's prior decision in Koon v. State. 463 S o. 2d 201 (Fla.). cert.den., 472 U. S. 1031 (1985) applies at bar. The Koon court noted the "strong public policy in favor of the marital privilege" and held that it was reversible error to admit; testimony from the defendant's wife which disclosed marital communications over her husband's objection. 463 S o. 2 d at 204. Moreover, this Court rejected the State's contention that Koon waived his privilege by making admissions about the murder to two other people.
At bar. Appellant neither made admissions about the homicide nor disclosed marital communications. Consequently. he never waived his privilege to prevent his ex-wife from testifying at his trial to the confidential communications.
B. Appellant Did Not Waive the Husband-Wife Privilese Because No Actual Public Disclosure of the Confidential Communications Occurred Prior to Trial.
argued that the work-product privilege was waived when a party failed to assert it at the earliest opportunity. The Third District. however. held that there was no waiver because there had never been an actual disclosure of the privileged information. Consequently, a pleading asserting the privilege is effective anytime before an actual disclosure has occurred.
Applying this analysis to the case at bar, Appellant's objection at the taping of the deposition to perpetuated testimony and the subsequent Motion in Limine Regarding Husband/Wife Privilege preserved his right to invoke the privilege. While the trial court's observation that Appellant could have filed a motion prior to the discovery deposition of Cheryl Coby was correct, Appellant still did not waive his privilege by waiting until a later time to assert it. There has been no public disclosure of Cheryl Coby's deposition; in fact, it is still sealed by order of the court
(R758-9,767). Defense counsel was always entitled to rely upon the court‘s protective order entered November 2, 1990 to prevent any public disclosure of the marital communications (R1879-80). Hence, there was no waiver.
Another case which is relevant by analogy is In r e Doe, 964F.
1325 (2d Cir. 1992). In Doe. a government witness asserted the psycho therapist-patient privilege in refusing to allow the defense access to his psychiatric files or to answer defense counsel's questions at a pretrial hearing. The trial court held the witness in contempt of court. On appeal, the Second Circuit recognized the psycho therapist-patient privilege, but affirmed the district court.
Because a protective order was in force, there would be no public disclosure of confidential matters by answers of the witness. The court wrote:
The discovery concerning appellant's history of mental illness and treatment may g o on in camera subject to the protective order and that rulings a s to the admissibility o f particular items of evidence must await trial.
964 F. 2d at 1329.
In essence, the Second Circuit took the position that there is no waiver when privileged matters are disclosed in discovery as long as they are not made public. Indeed, a witness may be held in contempt for asserting a privilege when the witness is otherwise protected from having a confidential matter publicly disclosed.
bar, it is evident that defense counsel could question Cheryl Coby during discovery about privileged communications without waiving the right to assert the privilege at trial. The fact that a protective order prevented public disclosure of confidential communications was sufficient to ensure appellant's ability to claim the husband-wife privilege. Accordingly, the trial court erred by finding a waiver of the privilege where the marital communications could not be made public.
C. Appellant Did Not Personally Waive the Husband-Wife Privileqe: Neither Did He Authorize His Lawyers to Waive It.
At all times during the proceedings. Appellant personally continued to assert the husband-wife privilege. Prior to his exwife's discovery deposition, he requested permission from the court to be present (R1686,1854,1861-3). The court ruled that Appellant could not b e physically present at the discovery deposition; he could only be in a nearby room where counsel could consult with him
(R1854-5,1868-9). The court also rejected requests that Appellant have electronic access to the deposition and that he be'made cocounsel in order to be present (R1870-2).
After the court's ruling that Appellant's counsel had waived the husband-wife privilege. Appellant moved pro se to discharge his attorneys (R1884-5). In his motion, he speci fied that he did not consent to waive the privilege (R1884).
Under these circumstances, it should be held that if counsel did impair the husband-wife privilege by deposing Cheryl Coby, the action did not bind Bolin personally because he never ratified his counsel's action. The decision of Schetter v. Schetter, 239 S o. 2d 51 (Fla. 4th DCA 1978) is relevant here. In Schetter, the defendant's attorney tape recorded a conversation with the defendant and submitted the recording to a psychiatrist without the consent of the defendant. The psychiatrist then testified at a hearing. basing his opinion that the defendant was incompetent on the taped conversations. On appeal, the Fourth District reversed, holding that the lawyers adverse action in giving the tape to the psychiatrist did not waive the attorney-client privilege. Therefore, the defendant was entitled to bar the psychiatrist from testifying at the hearing.
a s the trial court ruled, Appellant's counsel should have filed a motion to prohibit the State from elicit ing any confidential communications prior to taking the discovery deposition of Cheryl Coby (Rl0781, it follows that counsel's elicit ing o f confidential communications was adverse to Appellant. Accordingly, it should be held that Appellant did not waive his husband-wife privilege because his attorneys' action at the discovery deposition was neither authorized by him nor in his interest.
D. Harmless Error Analysis If the State cannot prove beyond a reasonable doubt that impermissible evidence did not contribute to the jury's verdict, the error is not harmless. State v. DiGuilio, 491 S o. 2d 1129 (Fla.
1986). Proper application of the test requires "a close exam ination of the permissible evidence on which the jury could have legitimately relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict." - Id., 491 S o. 2d at 1135.
is clear that Cheryl Coby was the State's star witness and that Bolin could not have been convicted without her testimony. Absent the marital communications, Coby would still have been permitted to testify to her observations o f Appellant's conduct at the time surrounding the homicide. See, Kerlin v.
4 5 (Fla. 1977). However. without the verbal admissions Appellant allegedly made to his ex-wife, the observations themselves were only marginally incriminating as to the homicide of Stephanie Collins.
For instance. Coby could properly testify to her observations of Appellant leading the body from the travel trailer into the pickup truck. She could testify about abandoning the body and the efforts made at concealing it from view. Coby could also identify the sheets and quilt in which the body was wrapped. However, she could not properly testify that Bolin admitted to killing Stephanie Collins by beating her on the head and stabbing her.
Without Bolin's admission to the homicide, the mast incriminate ing evidence against him would not be heard by the jury.
Moreover, there are demonstrable indication from the verdicts actually returned that Coby's testimony about Bolin's admission to the homicide contributed to the verdict of guilt to the count of first degree murder. The jury, by comparison. returned a verdict of guilt t o the lesser crime o f false imprisonment on the kidnapping count. This verdict seems likely to result from the lack of evidence connecting Bolin to the white van in which the victim was last seen riding.
short. if the jury considered only the permissible evidence, they could conclude that Bolin was not the only person involved in the disappearance and killing of Stephanie Collins.
While ample evidence connect Bolin to the removal o f Collins‘ body from the travel trailer to its roadside abandonment, there would onlybeconjectureas to whether Appellant was the one who killed her.
182 (1993) recentlyclarifiedthesubjectof harmless errorreviewbyan appellate court. The question is not what effect the error might be expected t o have on a hypothetical "reasonable jury". butitseffect upon theguiltyverdictinthe instant case. The reviewingcourtmustlook " tothe basis on which 'the jury actually resteditsverdict. ' ' I 124 L. Ed. 2d at189, quoting from Yates. Evatt, 114 L. Ed. 2 d 432 at 449 (1991). A t bar, thejuryclearlyresteditsverdictofguilttofirstdegree murder on Coby ' s testimony that her ex-husband admitted killing Stephanie Collins and described how hedidit, This testimony cannot be harmless error.
ISSUE I1
THE TRIAL JUDGE ERRED BY RULING THAT
THE DEFENSE CROSS-EXAMINATION OF
CHERYL COBY OPENED THE DOOR TO EVI -
DENCE THAT BOLIN HAD COMMITTED A
PRIOR UNRELATED MURDER.
The general rule in Florida is that evidence of a collateral crime is inadmissible where it proves only bad character or propensity to commit a charged crime. Florida courts have reversed convictions where the State introduced evidence that the defendant previously committed an unrelated similar crime. See, Bolden v.
DCA 1989) (battery of another law enforcement officer a year earlier); Peek v. State, 488So. 2d 5 2 (Fla. 1986) (subsequent sexual battery); Frieson v. State,
1092 (Fla. 2 d DCA 1987) (attempted sexual battery which occurred two hours prior to the charged sexual battery); Periu v. State. 490 So. 2d 1327 (Fla. 3d DCA 1986) (police officer's testimony that he had recovered stolen motor vehicles from the defendant's body shop previously). Even where the evidence admitted was merely an unsupported boast by the defendant that he previously committed similar crimes, reversible error has been found. E.q.. Jackson v.
State, 451 So. 2d 458 (Fla. 1984) (witness testimony that Appellant claimed to be a "thoroughbred killer"); Dclqado v. State. 573 So.2d 8 3 (Fla. 2 d DCA 1990) (boast of having killed ten men).
The policy behind rejecting evidence of a defendant's propensity to commit a given crime was explained by this Court many years ago: 1 Evidence that the defendant has committed a similar crime, or one equally heinous. will frequently prompt a more ready belief by the jury that he might have committed the one with which he is charged, thereby pre disposing the mind of the juror to believe the prisoner guilty.
Nickels v. State, 90 Fla. 659,685, 106 So.
479. 488 (1925).
bar. the State never contended that Bolin's prior conviction for murder was admissible in their case-in-chief. Rather, a pretrial ruling was sought which would admit evidence of the second murder if Cheryl Coby were "impeached by cross-examination concerning the time period between when Collins murder occurred and her talking with the police" (R1481). The court deferred ruling on the State's motion on the ground that it was "premature" (R433-4).
After the defense cross-examination of Cheryl Coby, the State again requested a ruling that defense counsel had " opened the door" to evidence of the prior murder (R700). The judge merely stated:
Mr. Firmani (defense counsel) has attacked her credibility and on redirect, if you can come under the Evidence Code, ask your questions
Compare Michelson v. United States, 335 U.S. at 475-6 (1948). "The inquiry is not rejected because character is irrelevant; on the contrary, it is said t o weigh too much with the jury and to so over persuade them as to pre judge one with a bad general record and deny him a fair opportunity to defend against a particular charge.
After several defense objections were overruled. Cheryl Coby 0 was permitted to testify that in January 1986, Bolin had told her he had tried to rob the Church's Chicken girl of the nights receipt and because she could identify him, that he had to kill her.
(R706) Defense counsel then moved fora mistrial, contending that whatever probative value the unrelated murder might have was greatly outweighed by the prejudice (R706-7). The court stated:
you [defense counsel] made a trial tactical decision to attack Ms. Coby's credibility in frontof this jury and this Court has already ruled that by your cross-examination, you have opened the door for this line of redirect by the State.
If I'm wrong, the Florida Supreme Court will tell me that I am wrong... I've ruled the door has been opened and Mr. Atkinson has the absolute right to rehabilitated Ms. Coby in the presence of this jury based on Defense counsel's cross-examination of her.
(R708) The state then continued redirect examination:
Q. Mrs. Coby, to your knowledge, has there ever been any kind of reward offer for information concerning the death of the Church's Chicken manager?
A. No.
Q. S o. in July when the police came to see you, you actually had information to provide them about two murders?
A. That's correct.
Q. And did you, in fact. do s o?
A. Yes, I did.
And when you came to Tampa to assist them, did you, in fact, take them to locations having to do with the other murder, as well?
A. Yes, I did.
A. Defense Counsel Did Not Open the Door The Sixth Amendment, United States Constitution and Article I.
section 16, Florida Constitution provide the criminal defendant with the right to confront adverse witnesses. Essential t o the right of confrontation is a full and fair cross-examination. COCO
v. State, 62 So. 2 d 892 (Pla. 1953). Section 90.612(2) of the Florida Evidence Code defines the scope of cross-examination:
subject matter of the direct examination and matters affecting the credibility of the The parameters of cross-examination as a tool totest the credibility of a witnesses were defined by this Court in Steinhorst
v. State, 412 So. 2d 332 (Fla. 1982). The Steinhorst court wrote:
credibility of the witness, which may involve, among other things, showing his possible interest in the outcome of the ease. [citations omitted] Therefore it is held that questions on cross-examination must either relate to credibility o r be germane to the matters brought out on direct examination.
Therefore, it follows that "the credibility of witnesses is in issue at any trial." Wise v. State, 546 So. 2d 1068 at 1070 (Fla. 2d DCA 1989).
there is no doubt that Cheryl Coby's credibility was challenged vigorously. The witness was asked to explain why she initially told the police that she knew nothing about the case
(R684). The contradiction between her claim that she wanted to inform the police about the homicide and her anger at Danny Coby when he called Crimestoppers was explored (R682-3). Her prior statement at deposition that Bolin had never admitted to killing Collins was introduced to impeach her testimony at trial that Bolin gave three version of the events, and in the third he implicated himself in the killing (R672-5), Witness Coby was also questioned and later impeached about her own participation in disposing of Collins' body (R679-80,795-6).
Further challenges t o Coby's credibility came from her trial testimony that Bolin had a gun on the seat of his truck while Collins‘ body was taken from the travel trailer and that she later saw a knife in the travel trailer (R676-7). Coby admitted that she couldn't recall whether she had mentioned these weapons in her statements to the police (R676-7). There were also questions about her truthfulness in whether Danny Coby had given her the $1,000 he collected for reporting the crime and her desire to obtain the possible $63.000 reward which had been offered for conviction of Collins' killer (R685.693-5.699).
Certainly the State was entitled to attempt to rehabilitated Coby‘s credibility on redirect examination. a s the judge noted.
However. allowing the witness to testify that she had also accused Bolin of another murder does not: rehabilitated her own character; it is simply a further attack on Bolin's character. Perhaps the door might have been opened for Coby to present evidence (if any existed) of reputation for truthfulness. See, Arias v. Scat@, 593 So. 2 d 260 (Fla. 3d DCA 1992) (witness might be able to present good character evidence when character for truthfulness was attacked on cross-examination), Evidence of Bolin's propensity to murder young women does not reflect on whether Coby's testimony at his trial is credible.
1017 (Fla. 1st DCA 1989), where the trial court erroneously admitted prior consistent statements of the victim to bolster her credibility. The Jenkins court wrote:
A witness' credibility is always an issue at trial, and a general attack on that credibility does not satisfy the hearsay exception rule.
a charge of recent fabrication does not open the door to prior consistent statements, it should not open the door to evidence of the accused's bad character or propensity to commit the charged offense.
Another analogous case is this Court's decision in Czubak v.
925 (Fla. 1990). In Czubak, when the state's key witness was being cross-examined, she blurred out that the defendant was an escaped convict. In reversing the conviction.
this Court rejected the State's assertion that the error was invited. A s in the case at bar, a vigorous cross-examination does not "invite" or open the door to collateral crime evidence.
One further case for comparison is Carr v. State, 578 So. 2d 398 (Fla 1st DCA 1991). The defendant in Carr testified that the police had planted the cocaine on him which they accused him of possessing. As rebuttal evidence, the state was allowed to present the defendant's prior conviction for cocaine possession. The First District reversed, finding that the jury issue was witness credibility and that evidence of propensity should not have been admitted to derogate the defendant's credibility.
was equally erroneous to admit propensity evidence under theory that it rehabilitated Coby's testimony as it was to admit propensity evidence in Carr to rebut the defendant's credibility.
Even if the State Should Have Been Given Leeway on Redirect Examination. the Probative Value of the Collateral Crime was Greatly Outweished by the Prejudice.
So. 2d 74 (Fla. 1991). this Court considered circumstances where evidence of a second homicide was 0 admitted as part of the context of a prolonged criminal episode.
This Court observed that the test of Section 90.403 of the Florida Evidence Code must be applied even where collateral crime evidence is relevant and otherwise admissible. Holding that the danger of unfair prejudice from the collateral crime evidence substantially outweighed its probative value, the Henry court reversed for a new trial.
defense counsel's objections to mention of the prior homicide were (1) spousal privilege, land (2) probative value outweighed by prejudice (R707). The trial judge should at least
(R706) See Issue I for treatment of this ground for exclusion.
have weighed the prejudice caused to Bolin by evidence of the prior unrelated murder against the marginal probative value which the collateral crime evidence might have to explain Cheryl Coby's conduct. The trial court's failure to even address this inquiry was reversible error.
State v. Price. 491 So. 2d 536 (Fla. 1986) is another decision of this Court which is on point here. The Price court wrote:
Care must be taken, however, not to allow the introduction of unduly prejudicial evidence simply because the evidence i s admissible under different rule.
at 537. Another decision of this Court which found the probative value of evidence from a collateral crime outweighed by prejudice is Bryan v. State, 533 So. 2d 744 (Fla. 1988).
bar, the State's redirect examination of Cheryl Coby established that ten months earlier, Bolin had driven Coby to another homicide scene (R785-6). There was no reward for a conviction in the murder of the "Church's Chicken girl" (R706, 713). Coby gave the police information about both cases (R713).
Collectively, whatever probative value this testimony had with regard to Coby's credibility was greatly outweighed by the prejudice caused to Bolin by the jury hearing that he previously murdered another girl.
C. Harmless Error Analysis Improper admission of collateral crime evidence is presumed to b e harmful error. Castro v, State. 547 So. 2d 111 at 115 (Fla.
at 5 6 (Fla. 1986). Even where there is overwhelming evidence of guilt, the State bears the burden of proving that the erroneously admitted evidence did not affect or contribute to the verdict. State v. Lee, 531 S o. 2d 133 (Fla.
(1988); State v. Michaels, 454 So. 2d 560 (Fla. (1984).
o f the evidence against Bolin came from Cheryl Coby's testimony. He was never linked to Stephanie Collins' disappearance from the Marketplace North shopping center; indeed.
Collins riding in a white van suggests that Bolin was not involved because he never had access to that type of vehicle. Only a similar head hair links Bolin by way of physical evidence to the body of Stephanie Collins. While Appellant's note to Captain Terry suggests that both he and Cheryl were involved in "dumping the body," the note is not a confession to any crime, let alone murder. Consequently, the credibility of Cheryl Coby'stes - timony was the essential question for the jury to decide at trial.
directly comparable to that of Keen v. State, 504 S o. 2d 396 (Fla. 1987). As at bar, there was irrelevant evidence of a prior violent act (attempted murder) committed by the defendant introduced into Keen'strial. This Court reversed Keen's conviction, noting that "the real issue presented in this trial centered on the credibility of Shapiro (State's witness) versus the credibility of Keen." 504 S o. 2d at 401. The harmless error test is not met by the State when credibility of a key witness is essential to conviction. See also. Carr v. State.
supra at 400. Admission of testimony about Appellant's prior murder charge destroyed the fairness of his trial. His conviction must be reversed.
ISSUE I11
THE TRIAL COURT ERRED BY DENYING
APPELLANTACHANGE OF VENUE FOR
TRIAL.
In order to protect a criminal defendant's Sixth Amendment right to a fair trial and his Fourteenth Amendment due process rights, a trial court must grant a change o f venue when it appears that prejudicial publicity has impaired the ability to select an impartial jury. This Court wrote in Sinser v. State. 109 S o. 2d7 at 14 (Fla. 1959) that when a trial judge considers a motion for change of venue. the judge must literally resolve in favor of the defendant any doubt: a s to the ability o f the State to furnish a defendant a trial by fair and impartial jury.
bar. there was extensive publicity about the case in Hills- @ boroughs County since the disappearance of Stephanie Collins in November. 1986. However. what is most significant about the media reports was the attention focused upon other crimes attributed to Appellant and speculation about his involvement in dozens of other most of the printed stories o r news broad casts dealt with material which never came into evidence at trial.
newspaper articles presented as exhibits in Bolin's motion for change of venue and the two supplements to it shows the following inflammatory report age:
A. Bolin was a suspect in "at least eight other killings in three states" beside the two Hillsborough County murders he had been indicted for (R1363-4).
B. AppellantfoughtextraditionfromOhio while " [ llaw enforcement official sin Tennessee, Ohio. Georgia and Florida are scrambling todetermine which unsolvedslayingof young women mightbetiedtoBolin " (R1367).
C. Bolinshowed no remorse for a prior kidnapping and rape (R1371).
E. Deaththreats were reportedly made again sta " key witness " for the prosecution
Bolin was charged ina1987Texasrape and murder. " confirm ing... suspicions that the long-haul trucker could be ' responsible for othermurdersaroundthecountry " ' (R1382 -
H. Bolinandtwoothers were charged with conspiringto kidnap " sheriff ' sofficers and their families " t o secure his release (R1385),
I. Insurreptitiously taped conversations (which never came into evidence), Bolin was reported as admitting he killed Stephanie Collins and that he " only did [ killed ] five "
J. Bolin attempted suicide while awaiting trial; "suspected serial killer obtain lethal dose of medicine " (R1418-28).
K. '"Investigators think Bolin may be linkedto killings inas many as26 states"
L. Coverage of trial anddeathsentence recommendation i n the slaying of Natalie SeethehearingofJune7. 1991 (R1622 - 3) for discussionastowhether this statement was aconfess. ion.
M. Coverage of inflammatory Guardian Angels demonstration advocating death for Bolin R1469-70).
Although details of the radio and television coverage are not available, the motion exhibits reflect extensive news broad casts on the local television stations (R1390-1,1447,1471).
The effect of this extensive inflammatory publicity about Bolin was creation of deep hostility in the community towards him.
Unlike such cases a s Provenzano v. State, 497 So. 2 d 1177 (Fla.
1986) and Copeland v. State, 457 So. 2d 1012 (Fla. (1984), the pretrial publicity was neither "largely factual, rather than emotional, in nature" (457 So. 2d at 1017), nor "straight news stories.
at 1182). Rather, Appellant was branded a serial killer before he had ever been tried fora single homicide.
Supreme Court explained that a defendant can establish presumed prejudice sufficient to require a change of venue by showing pervasive inflammatory news media coverage prior to trial. State court convictions were overturned in Rideau v. Louisiana,
Maxwell, supra, without examination of the actual jury selection process because the "influence of the news media, either in the community at large or in the courtroom itself,
This Court has also recognized the need for change of venue 0 when pretrial publicity is pervasive and prejudicial. In Oliver v.
State, 250 So. 2d 888 (Fla. 1971), this Court stated as a general rule, when a 'confession' is featured in news media coverage of a prosecution, as here, a change of venue motion should be granted whenever requested.
2d 274 (Fla. 1979). this Court, in reversing fora new trial in another venue, held that A trial judge is bound to grant a motion for change of venue when the evidence presented reflects that the community is so pervasively exposed to the circumstances of the incident that prejudice, bias, and preconceived opinions are the natural result.
Bolin has met this test. The widespread publicity attributing not only the homicide of Stephanie Collins but numerous other homicides to Bolin made it impossible for him to receive a fair trial in Hillsborough County. On this basis alone, this Court should reverse Bolin's conviction and order a new trial in a different venue.
The second manner in which a defendant can establish that a change of venue should have been granted requires "showing great difficulty in selecting a jury." Copeland v. State, 457 So. 2 d 1012 at 1017 (Fla. 1984); Murphy v. Florida, supra. Balin has met this test also. When the prospective jurors were first questioned about their knowledge of the case, forty-six out of one hundred were immediately dismissed because they had read or heard about Bolin in the day preceding trial and could not be impartial (R28 - 9,392). Thirty-five of the remaining prospective jurors admitted knowledge of the case but claimed they were able to be impartial
(R29,392). When defense counsel argued to the court that the numbers indicated the impossibility of selecting an impartial jury, the following exchange took place:
MR. O'CONNOR (Defense counsel):.. The only fair way to give him a fair trial is t o relocated the venue, the location of the trial.
THE COURT: Where? To Australia?
MR. O'CONNOR: Sir?
THE COURT: Where? To Australia?
While it might have been necessary to change the venue "to Australia" in order to find a jury venire where no one had ever heard of Bolin, only in the Tampa area was there such intense and pervasive publicity. Of the three Florida murders for which Bolin was accused, two of the victims were killed in Hillsborough County and the third in neighboring Pasco County. Of the three victims, the one in the case at bar, Stephanie Collins, generated the most publicity and community outrage -- perhaps the most of any crime ever committed in this area. Given the facts that Collins was a pretty and popular seventeen-year-old high school senior, who was abducted in broad daylight from a shopping area and found a month later by the side of a road, brutally murdered, this case stirred public feeling even without the allegations that Bolin had killed numerous other young women.
Among the prospective jurors who had been exposed to publicity yet claimed impartiality, there were many who fit the Court's description in Murphy:
In a community where most veniremen will admit to a disqualifying prejudice, the reliability of the others's protestations may be drawn into question; for it is then more probable that they are part of a community deeply hostile to the accused, and more likely that they may unwittingly have been influenced by it.
S. at 803. For instance, prospective juror Reyor said that she was aware that Bolin was a suspect in multiple homicides, but it wouldn't affect her because "I'm here to sit on one case.
That's "it" (R269-71).' Defense counsel noted that it took "repeated and sometimes hostile and adversary questions" to get pro spective jurors to reveal their knowledge of the case (R393). Thus, even fair jurors had been alienated by the defense need to ferred out hidden prejudice to Bolin (R393-4).
Finally, it is significant that Appellant exhausted his peremptory challenges and requested additional peremptories (R405-7, 415). He identified juror Hart as an unacceptable juror who he would strike if he were able (R415,417).
Considering the total circumstances of the jury selection. it was an abuse of discretion for the trial court to deny Bolin's repeated motions for change of venue. Appellant was denied his Sixth Amendment right to trial before an impartial jury and his ' Appellant's challenge for cause to this prospective juror was denied; but error was alerted when the Court excused her anyway
Fourteenth Amendment right to due process. A new trialshouldbe granted.
ISSUE IV
THE TRIAL COURT ERRED BY FAILING TO
CONDUCT A SUFFICIENT INQUIRY INTO
APPELLANT'SPRO SE MOTION TO DIS -
CHARGE COUNSEL.
After the trial judge had ruled that Appellant waived his spousal privilege. Appellant filed apro se "Motion to Discharge Counsel" (R1884-5). He stated that he was dis satisfied with his lawyers' performance (R1884). He stated that he had not intended to waive his spousal privilege and that his attorneys rendered ineffective assistance when they did so (R1884-5).
A hearing on this motion was held April 12, 1991 (R1090-1110).
A t this hearing. the judge questioned defense counsel as to whether they were aware of the husband-wife privilege in the Florida Evidence Code at the time they took Cheryl Coby's discovery deposition
(R1092-3). Both counsel said that they had researched the law before taking Coby's discovery deposition and were of the opinion that asking her questions about marital communications would not waive the husband-wife privilege (R1094-5). Counsel also stated that there was no tactical decision involved (R1103). If, as the trial judge had found, defense counsel should have moved the court for an order precluding the State from delving into marital communications prior to taking the discovery deposition, counsel made a mistake by not following that procedure (R1104-05).
The trial judge then proceeded to rule, as follows:
O'Connor have been before this court on cases that do not involve your case, or cases. I have found both attorneys to be very competent. Mr. O'Connor has years of experience in handling first degree murder cases
Firmani. I've already told you that in this Court's opinion. is a fine lawyer. Your motion to discharge-- THE DEFENDANT: Can I say something?
THE COURT: -- the Public Defender is denied.
THE DEFENDANT: So I can't say nothing?
THE COURT: Yes, you can say something.
I've denied your motion.
In denying his motion to discharge counsel, Bolin was deprived of the elementary due process right to be heard before a ruling was made. Furthermore. the trial court's handling of this motion did not com port with the procedure endorsed by this Court in Hardwick The Hardwick court wrote:
assigned by the defendant...the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant. If reasonable cause for such belief appears, the court should make a finding to that effect an the record and appoint a substitute attorney who should be allowed adequate time to prepare for the defense. If no reasonable basis appears fora finding of ineffective representat ion, the trial court should s o state on the record and advise the defendant that if h e dis charges his original counsel the State may not thereafter be required to appoint a substitute.
521 So. 2d at 1074-5). quoting from Nelson v. State. 274 S o. 2 d 256 at 258 - 9 (Fla. 4th DCA 1973).
the trial judge not only made no "sufficient inquiry of the defendant"; h e made no inquiry whatsoever. Immediately prior to trial. the trial court had an opportunity to correct this error. The following transpired:
MR. O'CONNOR: On behalf of our client, we are moving to withdraw because he feels we are ineffective. And we are going to acquiesced with his judgment and move the Court to allow us to withdraw.
THE COURT: Based on what claim?
MR. O'CONNOR: Ineffective assistance of counsel.
THE COURT: Based on what, Mr. O'Connor?
MR. O'CONNOR: In that he perceives us to have effectively and incompetently waived his husband/spousal privilege while taking adepo - sit ion months ago.
THE COURT: Specifically limited to that?
MR. O'CONNOR: You have to ask him, Your Honor THE COURT: Oh, no, I'm not going to ask him. I don't have to listen to any motions.
(R25-6) The court went on to rule again that Appellant was represented "by highly competent counsel" without permitting Bolin to state his complaints about counsel (R26).
When an indigent criminal defendant establishes adequate ground. he has a constitutional right to replacement of his courtappointed counsel. Capehart v. State, 583 S o. 2d 1009 at 1014 the procedure mandated by Hardwick and Nelson requires reversal.
(1984). Unlike the situation in Bowden v. State. 588 S o. 2d 225 (Fla. (1991). cert.
Ct. 1596 (1992). where a majority of this Court found the inquiry of the defendant "adequate". the inquiry at bar was non existent. See also. JQneS v. State. 612 So. 2d 1378 (Fla. 1992) (Justice Barkett. dissenting opinion at 1376).
Other Florida cases which emphasized the necessity for the trial judge to examine both court-appointed counsel and the defendant before ruling on a claim of ineffective ness are Perkins v.
State. 585 So. 2 d 390 (Fla. 1st DCA 1991) and Davenport v. State.
596 So. 2 d 92 (Fla. 1st DCA 1992). Appellant should now be granted a new trial.
ISSUE V
THE TRIAL COURT ERRED BY GIVING THE
STATE'S SPECIALLY REQUESTED JURY
INSTRUCTION ON THE LAW OF ACCESSORY
AFTER THE FACT BECAUSE IT DID NOT
PROPERLY RELATE TO THE EVIDENCE AND
COULD BE CONSTRUED BY THE JURY AS A
COMMENT ON THE CREDIBILITY OF THE
STATE'S KEY WITNESS.
Over Appellant's objection, the trial judge agreed to give a special jury instruction on the law of accessory after the fact, as requested by the state, (R814). The jury was instructed:
Spouses, parents, grandparents, children or grandchildren of any person who has committed a felony cannot be prosecuted in Florida as an accessory after the fact for giving the offender any aid or assistance with the intent of helping the offender cover up the crime or avoid or escape detection, arrest, trial or punishment.
a crime for which Bolin could be convicted, the purpose of the instruction was evident. On defense cross-examination of Cheryl Coby, the following occurred:
Q. Isn't it true that since November the 5th of 1986. until the time when the detectives spoke with you in Indiana on July the 16th, of 1990, you had been worried of being arrested for accessory after the fact?
A. Yes.
Q. Of course. now, you've been told that as a wife of Ray Bolin. you cannot be arrested as being an accessory after the fact?
A. No, no one's told me that.
Q. Thatwasaconcern for you back then before the detectives spoke with you, wasn ' t
Q. Infact, thatthoughtcrossedyour mind severaltimesbetween November the5tho ' 8 6 until July16tho 1990 anditapparentlygoes on, does it not?
A. Yes.
A. That's correct.
(R697-8). Clearly, the State's reason for requesting a jury instruction on thelawofaccessoryafterthefact was to rebut the defenseimpeachmentofCheryl Coby asitrelatedtopossiblebias and motive intestifyingfortheprosecution.
isentirely immater ial whether Coby could have been prosecuted as a n accessory after thefact; thepointisthatshe was afraidofbeingprosecut - edforherroleinassistingEolintocover up evidence from the homicide. Itisthisfear of prosecution which suppliesamotive for her totestify falsely. What exact chargesshemightfaceand whetherherfears were realisticarebesidethepoint.
Consequently, the special instruction read tothejurywas irrelevantto any faction evidence. I t was prejudicialtoAppel - lant however, because thejury might have interpretedtheinstruc - tion asa comment bythejudge on the credibility of Cheryl Coby.
I n effect, thecourt ' s instruction tended t o negate the proper impeach ment of Coby'stestimony.
This Court held in Butler v. State. 493 S o. 2d 451 (Fla. 1986) that trial judges should only give jury instructions which concern evidence received at trial and that the instructions must not be misleading or confusing. This Court has also said:
It is fundamental that instructions should be confined to the law applicable to the controversy. Abstract instructions on questions o f law not applicable should not be given by a trial court.
719 (Fla. 1950). The instruction at bar clearly falls within the category prescribed by these decisions. Jury instructions pertaining to crimes which were unrelated to the evidence or confusing have been the basis for reversal in such decisions a s Griffin v. State, 370 S o. 2 d 860 (Fla. 1st DCA 1979) (instruction on possession of stolen property) and Doyle v.
State, 483 So. 2d 89 (Fla. 4th DCA 1986) (altered instruction on third degree murder).
This Court has also found error where the trial court's instruction can be construed as a comment on the evidence. In Whitfield v. State, 452 S o. 2 d 548 (Fla. 1984). this Court reversed a conviction stating:
Especially in a criminal prosecution. the trial court should take great care not to intimate to the jury the court's opinion as to the weight, character. o r credibility of any evidence adduced.
452 So. 2d at 459. Accord, Fenelon v. State, 594 So. 2d 292 (Fla.
(1992). The prejudice caused by a judge's comment on the evidence was explained by the Third District in Hamilton v. State. 109 S o.
2d 422 (Fla. 3d DCA 1959):
the litigant. witnesses and othercourtofficers. Where such comment expresses or tendstoexpressthejudge ' sview as tothe weight of the evidence, thecredi - bilityofawitness, ortheguiltof an accused, it therebydestroystheimpartiality of thetrialtowhichthe litigant oraccusedis entitled.
whethertheythought Cheryl Coby was a credible witness, this jury instruction which tendedto bolster Coby's credibility was prejudicial error. Bolin shouldbegranteda new trial.
CONCLUSION
Based upon the foregoing argument, reasoning and authorities.
Oscar Ray Bolin, Jr., Appellant, respectfully requests this Court t o reverse his convictions, vacated his sentences. and grant him a new trial.
P. 0. Box 9000 - Drawer PD Bartow, FL 33830
APPENDIX
PAGE NO.
1. Findings in Support of Death Sentence (R1526-7) A1-2
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT OF THE
STATE OF FLORIDA, IN AND FOR HILLSBOROUGH COUNTY
CRIMINAL JUSTICE DIVISION
STATE OF FLORIDA
Case No. 90-11833 vs. TRIAL DIVISION 1
OSCAR RAY BOLIN, JR.,
FINDINGS IN SUPPORT OF DEATH SENTENCE -
The following Statutory Aggravating Circumstance was proved beyond a reasonable doubt: I ' The defendant has been previously convicted of another felony involving the use or threat of violence to some person, to-wit: Convicted of Rape and Kidnapping in the State of Ohio and convicted of Murder in the First Degree, Armed Robbery and Kidnapping in the State of Florida.
The following Statutory and Non-statutory Mitigating Circumstances were properly established:
substantially impaired, as evidenced by the expert testimony of D r. Robert
2. Any other aspect of the defendant's character or background as evidenced by the testimony of his mother and sister to the effect that during his childhood he was subjected to a nightmarish home environment and was physically and mentally abused by his father.
The afore said Aggravating Circumstance out weighs the afore said Mitigating Circumstances to such an extent that the defendant deserves the death penalty as unanimously recommended by the jury.
DONE at Tampa, Hillsborough County, Florida, this // M- day of October, 1991.
Copies furnished to:
Counsel for State and Defendant
CERTIFICATE OF SERVICE
I certify that copy has been mailed to Robert J. Krauss, Suite 700, 2002 N. Lois Ava.. Tampa, FL 33607. (813) 873-4730. on this 2011 day of July, 1993.
JAMES MARIONMOORMAN DOUG@S S. CONNOR Public Defender Assistant Public Defender Tenth Judicial Circuit Florida Bar Number 350141 (813) 534-4200 P. 0. Box9000 - DrawerPD Bartow, FL 33830
FILED
I N THE SUPREME COURT OF FLORIDA JAN 26 1994
CLERK, fjfjt?? coyOSCAR RAY BOLIN, BY Chle Deputy clerk Appellant, vs. Case No. 78.905
STATE OF FLORIDA,
Appellee.
APPEAL FROM THE CIRCUIT COURT
IN AND FOR HILLSBOROUGH COUNTY
STATE OF FLORIDA
REPLY BRIEF OF APPELLANT
JAMES MARION MOORMAN
PUBLIC DEFENDER
TENTH JUDICIAL CIRCUIT
ASSISTANT PUBLIC DEFENDER
FLORIDA BAR NUMBER 350141
Public Defender'sOffice Polk County Courthouse
P. 0. Box 9000--Drawer PD Bartow. F L 33830
(813) 534-4200
ATTORNEYS FOR APPELLANT
TOPICAL INDEX TO BRIEF
PAGE NO.
STATEMENT OF THE CASE
STATEMENT OF THE FACTS
ARGUMENT
ISSUE I
THE TRIAL COURT ERRED BY RULING THAT
LEGE BY FAILING TO PREVENT HIS EX-
WIFE, A STATE WITNESS, FROM REPEAT-
ING MARITAL COMMUNICATIONS DURING A
DISCOVERY DEPOSITION. ADMISSION AT
ISSUE I1
THE TRIAL JUDGE ERRED BY RULING THAT
THE DEFENSE CROSS-EXAMINATION OF
CHERYL COBY OPENED THE DOOR TO EVI-
DENCE THAT BOLIN HAD COMMITTED A
ISSUE I11
THE TRIAL COURT ERRED BY DENYING
APPELLANT A CHANGE OF VENUE FOR
ISSUE IV
THE TRIAL COURT ERRED BY FAILING TO
CONDUCT A SUFFICIENT INQUIRY INTO
APPELLANT'SPRO SF; MOTION TO DIS- ISSUE V
THE TRIAL COURT ERRED BY GIVING THE
STATE'S SPECIALLY REQUESTED JURY
INSTRUCTION ON THE LAW OF ACCESSORY
AFTER THE FACT BECAUSE IT DID NOT
PROPERLY RELATE TO THE EVIDENCE AND
COULD BE CONSTRUED BY THE JURY AS A
TOPICAL INDEX TO BRIEF (continued)
COMMENTON THE CREDIBILITY OF THE
TABLE OF CITATIONS
CASES PAGE NO.
Bates v. State, Bundy v. State, Bundy v. Duqqer, Bundy v. State, Davenport. State, Davis v. Wainwrisht, Fraser. UnitedStates, Perkins. State, Saeqz v. Alexander, Savino v. Luciano, Smithv. State, State. DelGaudio, Sullivan. Louisiana, Tibado v. Brees, Tucker v. State, United States. Perez-Garcia, iii TABLE OF CITATIONS (continued) Yates v. Evatt, Younsv. State,
OTHER AUTHORITIES
STATEMENT OF THE CASE
Appellant will rely upon the Statement of the Case a s presented in his initial brief.
STATEMENT OF THE FACTS
Appellant will rely upon the Statement of the Facts in his initial brief.
ARGUMENT
ISSUE I
THE TRIAL COURT ERRED EY RULING THAT
LEGE BY FAILING TO PREVENT HIS EX-
WIFE, A STATE WITNESS, FROM REPEAT-
ING MARITAL COMMUNICATIONS DURING A
DISCOVERY DEPOSITION. ADMISSION AT
TIONS WAS REVERSIBLE ERROR.
In his brief, Appellee asserts that defense counsel questioning of the State's witness, Cheryl Coby. at a discovery deposition waived Bolin's husband/wife communications privilege. Appellee recognizes that the privilege belongs to both parties in a marriage and that one party's waiver of the privilege does not preclude the other party from claiming it. Brief of the Appellee, p. 9. Thus, Cheryl Coby's choice to tell law enforcement about communications between Appellant and herself during their marriage waived the privilege only for herself and not for Appellant, Bolin. Brief of Appellee, p.9.
Appellee's claim is that defense counsel‘s questioning during the discovery deposition o f Cheryl Coby on communications where Coby had already waived her privilege acted as a waiver on the part of Bolin. To this end, Appellee cites Tibado v. Brees, 212 So. 2d 61 (Fla. 2 d DCA 1968); Savino v. Luciano, 9 2 So. 2 d 817 (Fla.
1061 (Fla. 1st DCA 1991). However.
these cases are simply not on paint because in all of them the party waived his privilege when he personally volunteered privileged communications or made admissions which he knew would be conveyed to third persons. At bar, Bolin personally neither revealed nor commented upon marital communications between Coby and himself.
The closer case is Tucker v. State, 484 So. 2d 1299 (Fla. 4th DCA1986) where a defendant listed his confidential psychiatric expert as a witness and allowed the State to take the psychiatrist's deposition. The Tucker court held that these actions constituted a waiver because the privileged communications were made public without any defense objection. Therefore, the psychiatrist was properly allowed to testify for the State in rebuttal ta the defendant's insanity defense.
Tucker, however, can be distinguished from the case at bar on two grounds. First, unlike the defense confidential expert in Tucker, Cheryl Coby was always an adverse witness to Bolin. Bolin never listed Coby asa witness and strenuously objected to the State‘s motion that a deposition to perpetuated her testimony be conducted (R1681 - 2). Taking the deposition of an adverse witness who has already waived her own marital communications privilege is not comparable t o failing to protect a privilege belonging to your own witness.
unlike the one in Tucker never became public record. It was filed with the court and ordered to be a sealed part of the appellate record (R758-60).
Additionally, there is no authority for the State's position that criminal defendant must elect between having discovery under F1a.R.Crim.P. 3.220 or protecting privileged communications.
Rather, Rule 3.220(b)(l)(c) obligates the prosecutor to disclose:
any oral statements made by the accused, including a copy of any statements contained in police reports or report summaries, together with the name and address of each witness to the statements;
Following up the alleged oral statements made by the defendant by deposing the witness who claimed to hear the statements is a further substantial right granted to a defendant. F1a.R.Crim.P.
3.220(h). A waiver is not voluntary when the defendant is forced to either waive his privilege o r relinquish a substantial right.
See. Davis v. Wainwrisht. 342 F. Supp. 39 (M.D. Fla. 1971).
affirmed, 464 F. 2d 1405 (5th Cir. 1972). Compare, State v.
45 (Fla. 1984) (defendant: not required to waive right to speedy trial in order to compel State to fulfill its discovery obligation).
Finally, Appellee contends that any error in admitting the marital communications is harmless. Brief of Appellee, p. 16-18.
Appellee speculates that the two people who last saw Stephanie Collins alive were mistaken when they testified that the victim was riding in a white commercial van. Brief of Appellee, p.17. This speculation is not, however. supported by the jury's verdict which found Bolin guilty of the lesser offense o f false imprisonment rather than kidnapping.
Plainly. the evidence supports a theory that another man was responsible for abducting Stephanie Collins and transport ing her i n his white van to Bolin's trailer, While the blood seen in the trailer supports an inference that Collins was killed there, only Coby's testimony that Bolin finally admitted committing the slaying refuses the possibility that another person was solely responsible for the homicide.
As the United States Supreme Court recently clarified in Sullivan v. Louisiana, 124 L. Ed. 2 d 182 (1993). the question I s not what effect the error might be expected to have on a hypothetical "reasonable jury," but its effect upon the guilty verdict in the instant case. The reviewing court must look "to the basis on which 'the jury actually rested its verdict.'" 124 L. Ed. 2d at 189, quoting from Yates v. Evatt. 114 L. Ed. 2d 432 at 449 (1991).
jury clearly rested its verdict o f guilt to first degree murder on Coby's testimony that her ex-husband admitted killing Stephanie Collins and describing how he did it. Without the marital communications, only a weak case of circumstantial evidence could have been presented. The error cannot be harmless.
ISSUE I1
THE TRIAL JUDGE ERRED BY RULING THAT
THE DEFENSE CROSS-EXAMINATION OF
CHERYL COBY OPENED THE DOOR TO EVI-
DENCE THAT BOLIN HAD COMMITTED A
Inhisbrief, Appellee asserts thattheevidenceintroduced of anotherhomicidecommittedbyBolin was properrebuttaltodefense cross-examination of Cheryl Coby. Brief of Appellee, p.22.
Contending that the other crimes testimony was "impeach ment," AppelleecitesUnited States v. Perez - Garcia. 904F. 2d 1534 (11th Cir. 1990) and Smith v. State, 515 So. 2d182 (Fla. 1987) assup - port ing the trial court's ruling that Cheryl Cobycould testify about the Natalie Holley homicide. However, Perez - GarciaandSmith arenotatall on pointbecauseinbath of those cases the defen - dantputhischaracterinto evidence by defense testimony. Thus.
theprosecutionwasentitledto impeach adefensewitness claim thatthedefendant "would never harm anyone " bythedefen - dant's prior juvenile conviction far killing a class made. In Perez-Garcia, theprosecutionwaslikewiseentitledto refute the defendant ' sclaimthathedidn ' trememberbeing on a boat bytesti - mony ofarebuttalwitness.
Atbar, however, Bolindidn ' t claim tohave harmed anyone nor did he otherwise put his character into evidence. This is a necessary predicate for the State to enter evidence of bad character. s90. 404 (1) (a), FloridaEvidenceCode; Batesv. State, 422So. 2 d 1033 (Fla. 3d DCA1982); Youns v. State, 195 S o. 2d569 (Fla. 1939). See generally, Ehrhardt, Florida Evidence 1404.5 (1993).
Although the State concedes that " a defendant has an absolute right to fully cross-examine adverse witnesses to dis credit them by showing bias, prejudice. interest, o r possible ulterior motive for testifying" (Brief of Appellee, p.25). somehow (in Appellee's eyes) Appellant's proper cross-examination of Cheryl Coby "opened the door" to introduction o f his prior criminal act. Brief of Appellee, p.25. It must be emphasized that the defense cross-exam inationof Cheryl Coby was entirely proper. Her trial testimony that Bolin threatened her with a gun was properly impeached by the fact that she never previously mentioned the gun to the investigating detectives (R676) Cross-examination elicit ing the fact that there was a reward offered for conviction in this homicide was proper t o show that Cheryl Coby had a pecuniary interest in the outcome of this trial (R699-700). It was entirely appropriate for the jury to assess the credibility of Coby's testimony with these factors in mind. Std. Jury Inst. Crim., $2.04 (1992).
ISSUE I11
THE TRIAL COURT ERRED BY DENYING
APPELLANT A CHANGE OF VENUE FOR
TRIAL.
Appellee concedes that there was extensive publicity in this case throughout the Tampa Bay area both when Stephanie Collins disappeared and later when Bolin was charged with her murder.
Brief of Appellee, p. 30. However, Appellee's contention that "most of the publicity was factual in nature" (Brief of Appellee, pp. 30-1) ignores the large amount of inflammatory publicity dwelling an items which were inadmissible in evidence and speculation upon numerous homicides nationwide where Bolin was a suspect.
See Initial Brief o f Appellant.
Appellee cites to both this Court's and the Eleventh Circuit's decisions involving Theodore Bundy. Bundy v. State, 471 So. 2d 9 (Fla. 1985); Bundy v. Duqger, 580 F. 2 d 1402 (11th Cir. 1988). The comparison is apt because both Appellant and Bundy received extensive pretrial publicity including speculation about a nationwide trail of victims. However, this Court should spec ifically note that Bundy was granted one change of venue in each o f his prosecutions. Bundy v. State, 471 S o. 2d9 at 11 (Fla. 1985) (from Suwanee to Orange County); Bundy v. State, 455 S o. 2d 330 (Fla. 1984) (from Leon to Dade County).
Thus, although Bundy still had to accept jurors who had been exposed to publicity, at least there was an effort made to afford him due process by changing venue. It should also be recognized that jurors in a different venue are more able to set aside initial impressions received from publicity because they have not developed the sense of community outrage which arises from a nefarious crime committed in the local vicinity. The record establishes that Appellant, like Bundy, should have been tried in a different venue from where the homicide occurred. The trial court's failure to grant a change of venue even after Balin had already been convicted of one homicide in Hillsborough County and provoked a Guardian Angels demonstration at the courthouse was an abuse of discretion.
ISSUE IV
THE TRIAL COURT ERRED BY FAILING TO
CONDUCT A SUFFICIENT INQUIRY INTO
APPELLANT'S PRO SE MOTION TO DIS -
CHARGE COUNSEL.
The State misapprehends Appellant's argument by asserting that Bolin did not prove his counsel was ineffective at the pretrial hearing. This is not the issue. Rather, Appellant's complaint concerns procedural due process because he was not allowed to present his reasons for requesting that counsel be discharged before the trialcourt denied his motion.
Before a trial judge can rule on a claim of ineffective ness.
he must examine both court-appointed counsel and the defendant.
Perkins v. State. 585 So. 2d 390 (Fla. 1st DCA 1991); Davenport Y.
2d92 (Fla. 1st DCA 1992). The court's failure to examine Appellant personally before ruling on the motion mandates reversal fora new trial.
ISSUE V
THE TRIAL COURT ERRED BY GIVING THE
STATE'S SPECIALLY REQUESTED JURY
INSTRUCTION ON THE LAW OF ACCESSORY
AFTER THE FACT BECAUSE IT DID NOT
PROPERLY RELATE TO THE EVIDENCE AND
COULD BE CONSTRUED BY THE JURY AS A
COMMENT ON THE CREDIBILITY OF THE
STATE'S KEY WITNESS.
With regard to Cheryl Coby's motive to testify against Bolin because she feared prosecution herself. Appellee writes:
While this false fear of prosecution may have been relevant to her initial motive in making statements to the police officers, this fear was obviously without basis by the time o f the trial. Clearly, Coby would have been told by the state that she did not fact prosecution under the law. Therefore, the defense assertion that she was testifying against Bolin out of fear of reprisal is without basis.
Brief of Appellee, p. 41-2. This assertion should be juxtaposed against Coby's actual testimony at trial:
Q. Isn't it true that since November the 5th o f 2986. until the time when the detectives spoke with you in Indiana on July the 16th. 1990, you had been worried of being arrested for accessory after the fact?
A. Yes.
Q. Of course, now, you've been told that as a wife of Ray Bolin, you cannot be arrested as being an accessory after the fact?
A. No, no one's told me that.
Q. That was a concern for you back then before the detectives spoke with you, wasn't
A. It's still a concern.
The instruction on accessory after the fact requested by the State and given by the trial court could only be understood by a reasonable juror as an instruction not to consider her motive to avoid prosecution when weighing the credibility o f Cheryl Coby's testimony. Since the credibility of Coby was the most important issue for the jury's determination in the case at bar, the error in giving the instruction cannot be harmless.
CONCLUSION
Appellant will rely upon his Conclusion a s stated in his initial brief.
CERTIFICATE OF SERVICE
been mailed to Robert. Krauss, Suite 700, 2002 N. LoisAve., Tampa. F L 33607, (813) 873-4730. on this gy# day of January, 1994.
Respectfully submitted, JAMES MARION MOORMAN DOUGLffS S. CONNORPublic Defender Assistant Public DefenderTenthJudicial Circuit Florida Bar Number 350141 (813) 534-4200 P. 0. Box 9000 - Drawer PD Bartow, F L 33830
No. 78,905
OSCAR RAY BOLIN,
Appellant, vs.
STATE OF FLORIDA,
Appellee.
[February 9, 19951
ON REHEARING GRANTED
PER CURIAM.
judgment and sentence of the trial court: imposing the death penalty upon Oscar Ray Bolin, Jr. We have jurisdiction pursuant to article V, section 3 (b) (1) of the Florida Constitution. In accord with our decision i n State, 642 So. 2d 540 (Fla. 1994) (herein after Pol in L), we hold that evidence protected by the spousal privilege was improperly 4 admitted in this case. As in, the trial court erroneously decided that the privilege had been waived by the taking of a discovery deposition.' We have reviewed the record in this case to determine if the admission of this evidence requires reversal. Based on our review, we cannot conclude that the error in the admission of the spouse's testimony was harmless. We therefore remand for a new trial to be held in accordance with this opinion.
Stephanie Collins was last seen on November 5, 1986, in the passengers seat of a white van. On December 5, 1986, her body was discovered alongside a road in Hillsborough County. An autopsy revealed that Collins sustained a number of stab wounds and several potentially fatal blows to the head.
The investigation into Collins' murder proved unavailing until July 1990, when Danny Coby telephoned Crime Stoppers in Ft.
Wayne, Indiana, with information about the murder. Danny Coby obtained the information from his wife, Cheryl Coby, who had acquired the information during her prior marriage to Bolin.
After Mr. Coby's call, Mrs. Coby told investigators that on Prior to both cases, the State filed a motion to perpetuated the testimony of the defendant's former spouse. In granting the State's motion, the court indicated that the State could ask questions about each of the homicides Bolin allegedly committed, including the murder in this case and the murder we addressed in Bolin 1. To prepare for the taping of the former spouse's testimony, the defendant took a discovery deposition.
During the deposition, defense counsel asked Bolin's former spouse about statements she made to law enforcement officers regarding her communications with Bolin.
Because we find this issue dispositive, we do not address the other issues raised by Bolin on appeal.
November 5, 1986, Bolin, her husband at the time, picked her up from a restaurant and took her back to their travel trailer.
Coby stated that while they were driving, Bolin made several attempts to explain the presence of a dead body in their trailer.
Bolin finally told Coby that he killed a girl by hitting her over the head and stabbing her. Coby further explained that, upon their arrival at the trailer, she saw Bolin 'load what appeared to be the body wrapped in a quilt onto his truck. He and Coby then drove to a spot where Bolin dumped the body. Coby later identified that spot to police. when she returned to the trailer, Coby observed that everything inside, including a knife beside the kitchen sink, appeared wet. Coby also noticed several blood stains in the trailer.
Bolin was charged with first-degree murder, attempted robbery, and kidnapping. The court granted a judgment of acquittal with respect to the attempted robbery charge, and the jury found Bolin guilty of first-degree murder and the lesser offense of false imprisonment. The jury unanimously recommended death, and the judge followed the recommendation, sentencing Bolin to death for first-degree murder and to five years for the remaining charge.
The testimony of Bolin's former spouse regarding her observations of Bolin's alleged criminal activity was admissible and may be admitted in the new trial. & mlinv. State, 352 So. 2d 4 5 (Fla. 1977). Coby, however, could not testify as to what Bolin told her about the murders because those statements constituted privileged communications,. During their privileged communications, Bolin offered his spouse three different accounts of how the victim, whose body he and his spouse later i transported, was murdered. With regard to the final account, Coby testified to the following:
A. The third version was that he had t o kill the girl because she could I.D. him.
Q. When he said "he, you mean who?
A. Ray.
Q. Did he explain to you how he had done that?
A. Said he hit her over the head and then he stabbed her a
Q. Did he indicate what, if anything, he had hit her with?
A. No.
Q. Did he indicate how many times he had stabbed her?
A. He just said numerous, times; he didn't say how many.
Additionally, Bolin's former spouse impermissibly recounted her discussions with the defendant, which occurred when they arrived at the trailer the night of the murder and during her stay in the hospital sometime later. We cannot say that these marital communications, in which Bolin admitted to committing the murder, did not contribute to the jury's determination of guilt. Sgg Kom v. Stat@, 463 SO. 2d 201 (Fla.),, 472U.S.
2d 641 (1985). Thus, we cannot conclude that the admission of the privileged communications was harmless error..., 491 So. 2d 1129 (Fla.
&e State v. DiGuilio 1986).
In this appeal, the State also claims that even if Bolin did not waive the spousal privilege by taking Coby's deposition, he personally waived the privilege in a letter he wrote to an investigating detective. There was no need to consider this issue at trial because the trial. court ruled that Bolin waived the spousal privilege by taking the discovery deposition. In light of our conclusion here and in pilin I that the discovery deposition did not waive Bolin's spousal privilege, the State will certainly raise at the retrial the issue of whether the letter was a voluntary waiver. We therefore address that issue here.
862 P.2d 1000 (Colo. Ct. App. 19931, cert. denied, No. 91CA0388 (Colo. Dec. 6, 1993); Mid-American Na L ' l & Trust C o. v. Cincinnati; Ilns. Cn,, 599 N.E.2d 699 (Ohio Ct. App. 1991). We further agree that if a person volunteers that his or her spouse may be questioned about his or her involvement in an event or events, this may equate t o Consent which constitutes a waiver pursuant to section 90.507, Florida Statutes (1993). Shell v. Stat?, 554 S O. 2d 887, 894 (Miss. 19891, revld in Dart on QLWr around,
2d 1 (1990). Section 90.507 specifically states that a waiver occurs when the person Ilconsents to disclosure of any significant part of the matter or communication.
The issue then with respect to the waiver is whether the circumstances surrounding the letter and the content of the letter demonstrate that this defendant voluntarily con sented to law enforcement officers talking with his spouse about her knowledge of his alleged criminal activities. Because this issue was not addressed at the trial, the record is not sufficiently complete for us to determine whether the letter constituted a voluntary consent.4 If on remand the trial court determines from the circumstances in which the letter was sent5 and from the content of the letter itself that the letter constituted a voluntary consent to such disclosure, then the marital privilege would be waived pursuant to section 90.507.
We note that Florida's Evidence Code does not require that the privilege holder's consent be knowing. a Charles W.
Ehrhardt, V', 5 507.1, at 324 (1994 ed.).
There is testimony in the record about the letter, but the letter itself is not included.
The testimony of the officer who received the letter indicates that it might have been written in con junction with a suicide attempt by Bolin, That fact alone would not render the content of the letter involuntary. The court, however, should consider the alleged suicide attempt as evidence relevant to whether the letter contained a voluntary consent.
questioning of his former spouse about her knowledge of the criminal activities for which Bolin was being investigated would permit his former spouse to testify as to Bolin's statements to her regarding the murder because the statements comprised part of what she knew about his activities. & Hovas v. State, 456 So. 2d 1225 (Fla. 3d DCA 1984). Ifthe court determines, however, that the circumstances together with the content of the letter do not indicate that Bolin voluntarily con sented to disclosure by Coby of what she knew about Bolin's alleged criminal activities, then there was not a waiver.
reasoning set forth above, we vacated Bolin's sentence, reverse his convictions, and remand for a new trial in accordance with our decision.
It is so ordered.
GRIMES, C.J., and OVERTON, SHAW, KOGAN, HARDING, WELLS and ANSTEAD, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
FILED, DETERMINED.
An Appeal from the Circuit Court in and for Hillsborough County,
Wm. Graybill, Judge - Case No. 90-11833 Div. I James Marion Moorman, Public Defender and Douglas S. Connor, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Appellant Robert A. Butterworth, Attorney General and.Robert J. Rrauss, Senior Assistant Attorney General, Chief of Criminal Law, Tampa, Florida, for Appellee