Florida sent Robert Joe Long to death row twice, and one of the two cases ended in an acquittal. In March 1997 the Supreme Court of Florida reviewed his third conviction for the murder of Virginia Johnson, an eighteen-year-old whose skeletal remains were found off a dirt road in Pasco County on November 6, 1984, one shoelace wrapped twice around her neck and another around her hand, and held that the evidence could not prove him guilty beyond a reasonable doubt. The reason lay in his other cases. His confession had been thrown out in 1987 because detectives kept questioning him after he said, “I think I might need an attorney,” and the plea agreement that secured eight murder convictions in neighboring Hillsborough County had to be honored, which kept most of that evidence away from a Pasco jury. What was left was not enough, and the court directed the trial judge to enter an acquittal.
The death sentence the state carried out came from Hillsborough County, where Long pleaded guilty to eight first-degree murders and related crimes in exchange for life sentences on all but one: the murder of Michelle Denise Simms, whose body was found on May 27, 1984, in a wooded area along Park Road just north of Interstate 4 near Plant City, with rope tied around her. The 1988 opinion upholds the pleas but sends the Simms sentence back to a new jury, because the first had heard about the Pasco conviction the court had since reversed. The second jury recommended death unanimously, and on October 15, 1992, the court affirmed. On the same day it reversed the Pasco conviction a second time and set out what a third jury could hear, including the videotaped interview Long had given CBS. He was executed at Florida State Prison on May 23, 2019.
Every one of these opinions starts from the same arrest. In November 1984 a Tampa and Hillsborough County task force was working a run of unsolved killings when a young woman who had been abducted from her apartment and sexually assaulted gave detectives a description of her attacker and his car, a red Dodge Magnum with a white interior, the word “Magnum” and a digital watch on the glovebox door. She also remembered a Howard Johnson’s and a Quality Inn near the automatic teller where he had stopped, and the police found the only machine in Tampa that fit, with a transaction recorded at 3:49 a.m. Long was arrested at the Main Street Theater on November 16, 1984. In the Simms resentencing the defense did not dispute that he killed her; it argued that bipolar disorder and temporal lobe epilepsy, brought on by a series of head injuries, lay behind what one of his experts called sexual sadism. The jury was not persuaded.
Long stands convicted of eight murders, every one of them by guilty plea in Hillsborough County, and the only murder a jury tried him for, Virginia Johnson’s, ended in an order of acquittal after two reversals. The 1997 court calls him a serial killer in its first paragraph and then holds, in plain terms, that the evidence it could lawfully consider did not prove he killed Johnson; both statements are in the opinion, and neither cancels the other. The Hillsborough victims other than Michelle Simms appear here only as counts in a plea agreement. And the facts about the Simms murder come from a penalty proceeding in which his own lawyers conceded guilt, which is why the court states them with so little dispute.
These five opinions of the Supreme Court of Florida are public records that anyone may reproduce in full. The woman whose escape and description led to Long’s arrest survived a kidnapping and a sexual assault, and whatever she has chosen to say publicly since, this archive does not print a survivor’s name from a court record; she appears as L.M. throughout, thirty-one times. Michelle Simms, Virginia Johnson and the other women the court names were murdered and keep their names, as do the detectives, the psychiatrists and psychologists who testified at the resentencing, and the lawyers on both sides.
The Caselaw Access Project’s text of these opinions is clean, and each court’s footnotes are gathered after its opinion. The only repair we made was to close five words the printer had split across lines, Hillsborough twice among them; there was nothing garbled to take out, and nothing has been spell-checked or reworded. The captions show how the name changed on paper: the 1988 opinion is styled “Robert Joe LONG, a/k/a Bobby Long,” and the 1997 opinion “Robert J. LONG,” with “a/k/a Bobby Joe Long” in its first sentence, which is worth knowing for anyone searching the reports under the name the newspapers used.
Robert Joe LONG, Appellant, v. STATE of Florida, Appellee.
No. 67103.
Supreme Court of Florida.
Nov. 12, 1987.
Rehearing Denied Jan. 27, 1988.
James Marion Moorman, Public Defender, Tenth Judicial Circuit, and W.C. McLain, Asst. Public Defender, Chief, Capital Appeals, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., and James A. Young, Asst. Atty. Gen., Tampa, for appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Robert Joe Long appeals his conviction for first-degree murder and his sentence of death imposed by the trial judge in accordance with the jury’s recommendation. We have jurisdiction, article V, section 3(b)(1), Florida Constitution. For the reasons expressed below, we find we are mandated by the United States Supreme Court decisions in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), to vacate appellant’s conviction and sentence and remand for a new trial.
The relevant facts reflect that on November 6,1984, two women discovered a young woman’s skeletonized remains in a horse pasture in rural Pasco county. The remains were identified as those of Virginia Johnson, a prostitute who had been reported missing since October. The medical examiner concluded that death occurred by strangulation, probably from a shoestring found around the neck, perhaps by manual strangulation.
In mid-November, 1984, Tampa and Hillsborough County law enforcement officials assembled a special task force to investigate a series of unsolved homicides pending in the area, including the Johnson murder. Based on information provided by a victim, L.M., who had been abducted from her apartment and sexually assaulted, officers were given a BOLO for a white male, approximately thirty years old, medium build, slightly pudgy, with conservatively cut brown hair and a mustache. The suspect was believed to be driving a red Dodge Magnum with white interior, the word “Magnum” and a digital watch located on the glovebox door. On November 15, two detectives spotted a vehicle and subject fitting the description. After stopping the suspect, detectives identified the vehicle’s interior and observed additional facts confirming their initial suspicion. The driver identified himself as Robert Long. Rather than arrest Long, the detectives photographed the automobile, then released the suspect and notified their superiors. Based on an affidavit containing the above information, the detectives obtained an arrest warrant for Long and a search warrant for his apartment and car. Hair and fiber evidence found in Long’s car and similar evidence received from an FBI analysis of L.M.’s clothing linked Long to the L.M. sexual battery and kidnapping.
Long was arrested on November 16, 1984, pursuant to a warrant on the abduction, kidnapping, and involuntary sexual battery of L.M. After his arrest, Long was transported to the Hillsborough County sheriff’s office for questioning. Initially, detectives read Long a form Miranda waiver. Long reviewed the waiver and signed it. According to detectives, Long spoke freely for approximately the next hour and one-half, answering questions and cooperating with police, who eventually obtained a full confession in the L.M. case. At this point in the interrogation, one of the detectives left the room to retrieve snapshot photographs of recent murder victims. After his return, the detective asked Long if he had ever picked up prostitutes in the area. Long responded, “I would prefer not to answer that.” The detectives immediately began to show Long the murder victims’ photographs. Long’s attitude changed at this point and he remarked to the detective, “The complexion of things have sure changed since you came back into the room. I think I might need an attorney.” The record is clear that the officers continued the interrogation. A portion of the suppression hearing testimony of one of the investigating officers reflects the following:
Q Okay. After Mr. Long said he’d rather not answer the question about Tampa prostitutes, after you showed him pictures of some prostitutes in Tampa, some maybe not prostitutes in Tampa, do you recall at that point Mr. Long saying “I think I might need an attorney”?
A Yes, sir.
Q Were those his exact words the best you recall?
A No, they weren’t his exact words. Best of my recollection his exact words— he looked at myself, made the statement, “The complexion of things sure have changed since you came back into the room.”
Q And?
A And he continued by saying, “I think I might need an attorney.”
Q Complexion of things have changed, hadn’t they?
A Yes, sir.
Q You told him they haven’t?
A I said, “Nothing has changed. I’m still being honest with you.”
Q Were you — were you being honest with him in fact?
A Nothing had changed for me. I was pursuing the interrogation.
Q You told him nothing had changed. After he said, “I think I might need an attorney.”
A That’s true.
Q Did you attempt to clarify that?
A Yes, sir. I told Mr. Long not to try to fool himself or me, that he knew upon his arrest at the Main Street Theater that the interview being conducted in regards to L.M. would eventually turn into the investigation of the homicides of the nine women.
(Emphasis added.) Subsequent to this exchange, Long made a full, explanatory confession of Virginia Johnson’s murder.
The jury found Long guilty of murdering Virginia Johnson and recommended the death penalty. The trial judge found four aggravating and no mitigating circumstances, and sentenced Long to death.
Long raises ten challenges to his conviction and sentence. We need only address the confession issue since it is dispositive.
In Miranda v. Arizona, the United States Supreme Court stated that if an accused person “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.” 384 U.S. at 444-45, 86 S.Ct. at 1612. This safeguard was designed “to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.” Id. at 469, 86 S.Ct. at 1625. Subsequently, the United States Supreme Court, in its decision in Edwards v. Arizona, made clear that, once an accused invokes his right to counsel, all questioning must cease and the accused is not subject to further interrogation until counsel has been provided. The Court in Edwards held that “when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.” 451 U.S. at 484, 101 S.Ct. at 1884-85 (footnote omitted).
The question in this case is whether Long clearly asserted his right to counsel by his statement, “I think I might need an attorney.” Some courts have held that this type of statement requires questioning to cease immediately. People v. Plyler, 86 Mich.App. 272, 277, 272 N.W.2d 623, 626 (1978) (“An ambiguous indication of an interest in having counsel requires cessation of police interrogation.”). Compare People v. Cerezo, 635 P.2d 197, 198 (Colo.1981) (“I think I better have a lawyer.”); People v. Traubert, 199 Colo. 322, 325, 608 P.2d 342, 344 (1980) (“I think I need to see an attorney.”); Singleton v. State, 344 So.2d 911, 912 (Fla. 3d DCA 1977) (“Maybe I better ask my mother if I should get [an attorney].”); State v. Blakney, 185 Mont. 470, 477, 605 P.2d 1093, 1097 (1979) (“[Mjaybe I should have an attorney.”); Wentela v. State, 95 Wis.2d 283, 287, 290 N.W.2d 312, 316 (1980) (“I think I need an attorney,” or “I think I should see an attorney.”). Since Edwards, however, we have not accepted this view and have characterized similar statements as equivocal which permit an investigating official to continue questioning for the sole purpose of clarifying the equivocal request. In so holding, we made clear that, until clarified, this is the limit of the permitted inquiry. Valle v. State, 474 So.2d 796 (Fla.1985), vacated on other grounds, 476 U.S. 1102, 106 S.Ct. 1943, 90 L.Ed.2d 353 (1986); Waterhouse v. State, 429 So.2d 301 (Fla.1983); Cannady v. State, 427 So.2d 723 (Fla.1983); In Cannady, we expressly stated:
When a person expresses both a desire for counsel and a desire to continue the interview without counsel, further inquiry is limited to clarifying the suspect’s wishes. Thompson v. Wainwright, 601 F.2d 768 (5th Cir.1979); Nash v. Estelle, 597 F.2d 513 (5th Cir.), cert. denied, 444 U.S. 981, 100 S.Ct. 485, 62 L.Ed.2d 409 (1979).
Id. at 728-29 (emphasis supplied).
The state argues that both officers did not believe appellant’s statement was a request for counsel and asserts that appellant’s willingness to discuss some areas and not others after his equivocal statement clearly supports the conclusion that he voluntarily waived his Miranda rights and did not intend to terminate the interrogation to consult with counsel. That type of argument was expressly rejected by the United States Supreme Court in Edwards when that Court said, “[A] valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation_” 451 U.S. at 484, 101 S.Ct. at 1885.
The statement, “I think I might need an attorney,” was, in our view, equivocal, but it did put the police officers on notice that the only permissible further questioning would be questions attempting to clarify Long’s request for counsel. The record is clear, however, that the investigating officers did not attempt to clarify the equivocal request for counsel, but continued to interrogate Long to obtain the eventual confession. We are bound by the United States Supreme Court decisions in Miranda, Edwards, and Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), which we conclude mandate suppression of Long’s confession. Without this equivocal request for counsel, we would find this confession voluntary and admissible. Miranda and Edwards, however, establish a bright line test that controls this case and requires suppression of the confession.
Accordingly, we vacate the conviction and sentence and remand for a new trial.
It is so ordered.
MCDONALD, C.J., and OVERTON, EHRLICH, SHAW, BARKETT, GRIMES and KOGAN, JJ„ concur.
Robert Joe LONG, a/k/a Bobby Long, Appellant, v. STATE of Florida, Appellee.
No. 69259.
Supreme Court of Florida.
June 30, 1988.
Rehearing Denied Aug. 26, 1988.
Ellis S. Rubin and David M. Rappaport of Ellis Rubin Law Offices, P.A., Miami, for appellant.
Robert A. Butterworth, Atty. Gen. and James A. Young, Asst. Atty. Gen., Tampa, for appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Robert Joe Long appeals the validity of his guilty pleas to multiple first-degree murders and related offenses in Hillsborough County and the imposition of a death sentence after a penalty phase proceeding in accordance with a jury recommendation. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We recently reversed appellant’s first-degree murder conviction and death sentence for a similar offense committed in Pasco County. Long v. State, 517 So.2d 664 (Fla.1987). Evidence in both cases arose in part from the same confession given to law enforcement officials by the appellant. We find the guilty plea valid and affirm the multiple life sentences, as well as the sentence for the probation violation imposed as part of the agreement. However, we find it was error to use the prior Pasco County conviction as an aggravating circumstance in the penalty phase proceeding in view of our subsequent reversal of the Pasco County conviction. Consequently, we remand only for a new death sentencing proceeding.
As in our prior Long decision, the record reflects that Robert Long was arrested on November 16, 1984, and charged with the sexual battery and kidnapping of L.M. Long signed a form Miranda waiver and consented to questioning. After the detectives procured a confession for the L.M. case, their questioning focused on a series of unsolved sexual battery homicides pending in the area. As the detectives began to question Long about the murders, he replied, “I’d rather not answer that.” The detectives continued the interrogation and handed Long photographs of the various murder victims. At this point, Long stated, “The complexion of things sure have changed since you came back into the room. I think I might need an attorney.” No attorney was provided and Long eventually confessed to eight murders in Hillsborough County and one murder in Pasco County.
Subsequently, on April 22, 1985, Long was tried for the Pasco County murder, where a jury returned a guilty verdict and a unanimous recommendation of death on April 27,1985. The trial judge subsequently imposed a death sentence on May 10, 1985.
The Hillsborough County cases, in which the appellant was charged with multiple sexual battery and homicide offenses, were ready for trial in September, 1985. On September 23, 1985, Long entered into a plea agreement with the state for all the offenses charged in Hillsborough County. In summary, Long pleaded guilty to eight counts of first-degree murder, eight counts of kidnapping, and seven counts of sexual battery. In addition, Long pleaded guilty to charges of sexual battery and kidnapping in the L.M. case. Under the agreement, except for the first-degree murder, kidnapping, and sexual battery counts in the Michelle Denise Simms murder, Long received life sentences on every count of each case and a five-year sentence on the probation revocation charge. The plea agreement provided for a full penalty phase proceeding before a jury in the Simms case and contained an express provision waiving Long’s right to contest the admissibility of any statements he had given police. In the agreement Long also expressly waived the right to contest the admissibility of a knife found near his residence and other evidence seized from his car and apartment. The state agreed not to utilize any of the Hillsborough convictions resulting from this plea agreement as aggravating factors in the penalty phase of the Simms case, but retained the right to use prior convictions obtained in other counties as aggravating factors. After appropriate inquiry in open court, the trial judge, on September 23, 1985, adjudicated Long guilty and pronounced sentence in each case except the Simms murder charge, which was set for a penalty phase proceeding.
On December 11, 1985, Long moved to withdraw from the plea agreement based on the unavailability of a crucial defense witness and his earlier misunderstanding regarding his right to appeal the confession’s admissibility. A hearing was held on the motion, during which the appellant testified as follows:
Dr. Morrison was the key to this thing as far as I was concerned. She was the main ingredient to the defense when I pleaded, with this plea bargain that took place a month or so ago.
My counsel advised me that she would be here. I went on what my counsel told me. They were mistaken. They were wrong. I don’t know. But I know that they told me something that has not come about. I have no faith in anything in this thing now. I have no faith in my counsel. I have no faith in the doctors. I don’t know what to do.
He continued, regarding his right to appeal the confession, by stating:
Back before this thing, before I pleaded, I was under the impression that further appeals as to my confession would not be jeopardized, that I was not giving up the right to appeal that suppression of the confession. I found out Monday, just this past Monday, that, indeed, that was a part of the deal with the plea. That I am giving up all appellate rights to challenge this confession. At the time I made the plea agreement, I wasn't aware of this.
It should be noted that this proceeding took place while the judge was attempting to seat the penalty phase jury. The trial court, after hearing the testimony on the plea, determined that appellant should be allowed to withdraw his previously entered guilty pleas.
Following the trial judge’s ruling, counsel for the appellant stated:
As I understand it, the Court has authorized the defendant to make an election whether he wishes to continue on his previously-entered pleas of guilty or affirmatively wishes to elect to withdraw them. As I understand it subject to the Court, that decision still rests with the defendant at this point?
The court agreed and subsequently, with the state’s consent, granted Long a twenty-four-hour continuance. On the following day, December 12, 1985, the appellant elected not to withdraw his previously entered pleas of guilty. The judge conducted a full inquiry of the appellant concerning his decision in open court. The transcript of the proceedings reflects the following:
THE COURT: All right, sir. Is it your intention to, not to withdraw your guilty pleas and to reiterate the plea agreement that was previously entered into and read into the court record by this Court at an earlier date?
THE DEFENDANT: Yes, sir.
THE COURT: All right, sir. Have you had time to seriously consider the consequences of that withdrawal of your motion to actually withdraw your previously-entered plea of guilty? Have you thoroughly discussed it with your attorney?
THE DEFENDANT: Yes, sir. That is about all I have thought about for the last forty-eight hours.
THE COURT: I can presume so. Do you feel that you have confidence in the advice that has been given to you by Mr. O’Connor and any of his associates from the Public Defender’s Office?
THE DEFENDANT: Yes, sir.
THE COURT: All right, sir. Do you feel that it’s in your personal best interest, after thinking about it over this period of time, to reiterate the plea agreement that was previously entered into?
THE DEFENDANT: Yes, I do.
THE COURT: All right, sir. Another point that was at issue was, that you were concerned about, was a preservation of your right to appeal the matter of the confession.
THE DEFENDANT: Yes, sir.
THE COURT: There was a great amount of discussion on that yesterday.
Do you understand, sir, that if I allow this plea bargaining to go forward ... that you are giving up your right to appeal on any issues in these matters?
Do you understand that, sir?
THE DEFENDANT: On any issues?
THE COURT: On any issues, yes, sir.
THE DEFENDANT: I wasn’t aware of that.
MR. BENITO [DEFENSE ATTORNEY]: On any issues as to ... this particular plea agreement, if any appellate issues arise in the second phase, you can appeal that.
THE DEFENDANT: Okay.
THE COURT: Obviously. Maybe I misworded it. Anything that is behind us.
THE DEFENDANT: Okay.
THE COURT: We are not talking about the punishment issue we are going to try this week.
THE DEFENDANT: Yes, sir, I understand that.
THE COURT: Especially, the matter of the confession, that you are waiving your right to appeal that.
Do you understand, sir?
THE DEFENDANT: Yes. Yes, I do.
THE COURT: All right, sir. Also, one of the issues that you mentioned yesterday was that you felt that you based your agreement to the plea bargain on the fact that you would have a forensic psychologist, Doctor Helen Morrison, specifically, in this case, here to testify as a keystone witness for you at this second phase of this trial. I believe that is what you indicated to me.
THE DEFENDANT: Yes, sir.
THE COURT: I made comments on that, too. Do you understand, sir, that there is no guarantee when we come to the trial of the second phase of this case involving Michelle Simms, that this plea agreement is not based on a guarantee of a forensic psychologist being one of your expert witnesses at this penalty phase whenever it’s heard.
Do you understand that?
THE DEFENDANT: Yes, I do.
THE COURT: All right, sir. So that would not be an issue at any other time. Do you understand?
THE DEFENDANT: Yes.
At the time of the plea, Long had already been tried and sentenced to death for the Virginia Johnson murder. The new sentencing proceeding was set for July 9, 1986. Before those proceedings began, appellant’s new counsel filed a motion to again set aside the plea agreement on the grounds that the plea agreement was based upon circumstances directly affecting Long's rights. Specifically, counsel claimed the plea agreement provided for a waiver of the right to contest the admissibility of unconstitutionally obtained statements and evidence. Further, counsel argued that the plea agreement directly affected appellant’s right to a fair penalty phase proceeding, because the agreement expressly provided for the introduction into evidence of Long’s confession and the knife discovered pursuant to the confession. The trial court denied the motion to set aside the plea agreement.
The penalty phase proceedings commenced on July 10, 1986, and the state presented evidence of Long’s confession with regard to the killing of Michelle Denise Simms and Virginia Johnson. The state also submitted a certified copy of the judgment entered in Pasco County for the Johnson murder. The state presented testimony by two expert witnesses, who concluded that Long, at the time of the Simms murder, was not under the influence of extreme mental or emotional disturbance, nor was his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law substantially impaired. One of the state’s experts did testify that when the appellant killed his victim, he was also unconsciously killing his mother by extension.
The appellant presented testimony from four expert witnesses who stated Long was under the influence of extreme mental or emotional disturbance at the time of the murders and was unable to conform his conduct to the requirements of law. The evidence reflected that appellant led an extremely troubled family life, had suffered numerous head injuries, which had led to brain damage and severe mental problems. The advisory jury recommended the death penalty by a vote of eleven-to-one.
The trial judge, in imposing sentence, found four aggravating circumstances: (1) previous conviction of a violent felony, including, specifically, that Long had “previously been convicted of the first-degree murder of Virginia Johnson in Pasco County, Florida”; (2) the murder was committed in commission of a kidnapping; (3) the murder was heinous, atrocious, and cruel; and (4) the murder was cold, calculated, and premeditated. The trial court found two mitigating circumstances had been established: (1) the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance; and (2) the appellant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. In so holding, the trial court stated:
There is no question in the court’s mind that for some period of time prior to the murder of Michelle Denise Simms that the defendant, Robert Joe Long, had had serious mental and/or emotional problems. The history of this defendant’s development as a human being shows with stark clarity the effect that parental actions and physical trauma to the brain of a person can have on his subsequent actions and his interactions with other members of society.
The court, however, found the statutory aggravating circumstances “far outweigh the two mitigating circumstances determined by the court to have been firmly established,” and concluded “the facts justifying the imposition of the death penalty are so clear and convincing that virtually no reasonable person could differ with this conclusion.”
Long raises four issues in this appeal. He contends the trial court erred by: (1) denying his motion to vacate the plea agreement; (2) admitting in the penalty phase proceedings the confession and knife found pursuant to the confession; (3) denying his motion for a continuance; and (4) imposing the death penalty.
Validity of the Plea
Appellant claims the trial court erred by refusing to vacate the plea agreement. Florida Rule of Criminal Procedure 3.170(f) provides:
Withdrawal of Plea of Guilty. The court may, in its discretion, and shall upon good cause, at any time before a sentence, permit a plea of guilty to be withdrawn....
A plea of guilty is both a confession of guilt in open court and an agreement for the entry of a conviction. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Williams v. State, 316 So.2d 267 (Fla.1975). Appellant does not argue that his plea was involuntary, that he did not understand the nature of the charges, or that the plea lacked a factual basis. Instead, Long asserts that the plea should be set aside because the agreement was entered into “inadvisedly and the defendant [Long] could not possibly receive a fair sentencing phase trial under the plea agreement.”
The principal point of appellant’s argument is that, because the confession’s admissibility was in question, the plea agreement must be invalidated. We disagree. In this case, appellant received multiple life sentences for each of the other seven murders and eight sexual battery offenses with which he was charged in Hillsborough County, all but one of which were concurrent sentences, and an agreement not to use those convictions in the penalty phase of this proceeding. Appellant entered the plea after extended discussions with counsel and the court. On its face, the plea agreement reflects that the number of possible offenses in Hillsborough County for which a death sentence could be imposed was reduced from seven to one. The record clearly reflects that appellant made an informed choice with full knowledge that the admissibility of the confession was an issue to which he was waiving his appeal rights.
The guilty plea itself is a confession. Appellant is arguing that, because the confession entered into on November 16, 1984, was later invalidated, see Long v. State, 517 So.2d 664 (Fla.1987), the confession by guilty plea entered on December 12, 1985, should also be declared invalid. In Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), the United States Supreme Court rejected Parker’s claim that his plea was involuntary because it was made on the advice of his counsel who thought his prior confession was admissible. Parker, who was charged with burglary and rape, had confessed and later entered a guilty plea. He contended that his guilty plea was invalid because the plea was the product of a coerced confession that was obtained in clear violation of Miranda. The Supreme Court stated Parker’s position as follows:
On the assumption that Parker’s confession was inadmissible, there remains the question whether his plea, even if voluntary, was unintelligently made because his counsel mistakenly thought his confession was admissible. As we understand it, Parker’s position necessarily implies that his decision to plead rested on the strength of the case against him: absent the confession, his chances of acquittal were good and he would have chosen to stand trial; but given the confession, the evidence was too strong and it was to his advantage to plead guilty and limit the possible penalty to life imprisonment. On this assumption, had Parker and his counsel thought the confession inadmissible, there would have been a plea of not guilty and a trial to a jury. But counsel apparently deemed the confession admissible and his advice to plead guilty was followed by his client. Parker now considers his confession involuntary and inadmissible. The import of this claim is that he suffered from bad advice and that had he been correctly counseled he would have gone to trial rather than enter a guilty plea. He suggests that he is entitled to plead again, a suggestion that we reject.
Id. at 796 (emphasis added; footnotes omitted). Further, we note that in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), the Supreme Court held that a guilty plea, motivated by existence of a coerced confession, was not subject to a collateral attack if the defendant had counsel unless counsel was incompetent. There is no question from our review of this record that appellant’s decision to plead guilty, after consulting with his attorney, was a tactical decision. Under this plea agreement, if counsel could obtain a jury recommendation of life because of appellant’s mental problems, a life sentence could probably be sustained and appellant would not be subject to be tried for any other offenses in Hillsborough County for which the death penalty could be imposed. We find no basis in this record to show that appellant’s counsel was incompetent or ineffective. Under the facts, the plea agreement was clearly voluntary and entered with appellant’s full understanding that he was expressly waiving his right to challenge the confession’s admissibility. To accept appellant’s argument would mean that there never could be an express waiver of prior legal challenges in pretrial matters by a guilty plea. As reiterated above, that is not the law. Since we have upheld the validity of the plea, appellant’s other related claims are without merit.
Validity of Sentencing Proceedings
Our recent decision in Long v. State, 517 So.2d 664 (Fla.1987), was submitted as supplemental authority. In that decision, we reversed Long’s conviction for the Pasco County murder of Virginia Johnson based on the inadmissibility of his confession. Evidence of the Virginia Johnson murder and appellant’s conviction for that offense was presented to the jury in this penalty phase proceeding. That evidence was presented to the jury as an aggravating factor and utilized by the trial judge in his first aggravating circumstance. We have expressly held that a conviction used as an aggravating circumstance, which is valid at the time of the sentence but later reversed and vacated by an appellate court, results in an error in the penalty phase proceeding. The reversal eliminates the proper use of the conviction as an aggravating factor. See Oats v. State, 446 So.2d 90 (Fla.1984). The Johnson conviction was the only prior murder conviction available for use in the sentencing proceeding, although there were other criminal convictions of violent crimes presented in the penalty phase.
Eliminating the Pasco County murder as an aggravating factor changed the factual circumstances that could properly be considered by both the jury and the judge. Given this circumstance, and the fact that the trial court found two firm statutory mitigating circumstances concerning Long’s mental condition, we must decide the question posed in Elledge v. State, 346 So.2d 998 (Fla.1977): Would the result of the weighing process by both the jury and the judge have been different had the prior murder conviction not been used as an aggravating circumstance? In answer to this question, we find we are unable to say there is no reasonable probability that the elimination of this factor would change the weighing process of either the jury or the judge, particularly in view of the mitigating circumstances. See, e.g., Dragovich v. State, 492 So.2d 350 (Fla.1986); Dougan v. State, 470 So.2d 697 (Fla.1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1499, 89 L.Ed.2d 1098 (1986); Elledge v. State. Under the particular facts of this case, we are compelled to conclude appellant is entitled to a new sentencing proceeding.
Accordingly, we affirm all of appellant’s convictions and each of the sentences imposed except the death sentence imposed for the murder of Michelle Denise Simms, which we vacate and remand for a new sentencing proceeding before a new jury.
It is so ordered.
McDonald, C.J., and OVERTON, EHRLICH, SHAW, GRIMES and KOGAN, JJ., concur.
BARKETT, J., concurs in result only in the convictions, but concurs with the sentence.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). .The plea agreement reads, in pertinent part: The State and Defense do hereby stipulate to the following plea negotiations in the above-styled cases subject to the Court’s approval. In exchange for Defendant’s pleas of guilty to the following case numbers the State would recommend to this Court the following plea negotiations: [Paragraphs 1 through 9 of the plea agreement set forth the sentences agreed to for nine separate incidents that include seven murders, eight sexual batteries, eight kidnappings, and one probation violation. The agreement provides that two life sentences in the first incident would be concurrent with each other but would be consecutive to one life sentence without the possibility of parole for twenty-five years, each of these sentences arising out of the first incident. All remaining sentences were concurrent with this sentence.] 10. Case Number 84-13346B (victim — Michelle Denise Simms) Defendant will plead guilty to all three counts of said Indictment. The Court will withhold imposition of sentence on all three counts until the completion of á second phase proceeding before a jury empaneled for that specific purpose. After an advisory sentence is recommended by said jury, this Court will impose a sentence of death or life without the possibility of parole for 25 years as to count III of said Indictment 84-13346B. The parties further stipulate and agree as follows: 1. Defendant waives his right to contest the admissibility of any statements he has given law enforcement and such statements are admissible at the sentencing hearing in Case Number 84-13346-B if otherwise relevant; 2. Defendant waives his right to contest the admissibility of evidence seized from his car or at or near his apartment, and specifically waives his right to contest the admissibility of a knife found in a wooded area near his apartment in the sentencing hearing in Case Number 84-13346-B; 3. To the extent any sentence imposed as to any plea of guilty as to any count contained in this agreement, the parties recognize the negotiations may require sentences which depart from the sentencing guidelines, and specifically agree to departure from the guidelines and to waive any issues caused by such departures; 4. The manner of voir dire of the sentencing phase jury is to be determined by the Court; 5. The number of peremptory challenges to the sentencing phase jury panel is to be determined by the Court; 6. The State of Florida shall not rely upon the pleas of guilty entered in any other case in the Thirteenth Judicial Circuit as aggravating circumstances in Case Number 84-13346-B, but may introduce into evidence and rely upon any other conviction of the defendant previously obtained, including those in Pasco, Pinellas, and Orange Counties; 7. Upon acceptance of pleas of guilty to Counts I and II of Case Number 84-13346-B, the sentences imposed on the defendant as to those counts shall run concurrently to the sentence imposed on Count III of that indictment.
The trial judge stated: But I believe that there is a mistake on his part or a misapprehension. It’s uncontrovert-ed he felt that Dr. Morrison was going to be here to speak on his behalf. That was one of the basis this Court finds for him entering into this plea agreement. That was a misapprehension on his part. No misapprehension at the time of entering into the plea, but he was under the belief, it is this Court’s finding, that she would be here or someone of her stature. For reasons unconnected with the defendant and really with the Public Defender's Office, Dr. Morrison, and we have reviewed all of that — it’s on the record — has chosen not to be here. I believe that is a key element in granting the motion which I am going to do. I am going to grant the defendant’s motion to withdraw or for permission to withdraw his previously-entered pleas of guilty. I believe Mr. O’Connor made another telling point that I also was going to comment on, that he knows by withdrawing this and by my granting of the motion, he is now laying himself open, unless future plea agreements are worked out, to potential eight death penalties. And I think that would be a strong factor to prohibit him from asking his attorney to file this motion for permission to withdraw the guilty pleas. It substantially even dangers [sic] his future life, and I believe it is another factor which indicates to me the truth of the matter that his entry into this plea agreement was based on, among other things, two factors: That he would have the right to appeal on the matter of the confession, and that he would have someone like Dr. Morrison here to speak on his behalf at the penalty phase of the trial. Therefore, the motion for permission to withdraw previously-entered pleas of guilty is granted. With the granting of that motion I believe that it terminates further activity with this particular jury that we have spent so much time trying to seat.
We are not dealing with an automatic waiver that results from a guilty plea when there is no express reservation of a right to appeal some prior trial court action. We addressed the automatic waiver rule with regard to death penalty cases in Muehleman v. State, 503 So.2d 310 (Fla.), cert. denied, — U.S. -, 108 S.Ct. 39, 98 L.Ed.2d 170 (1987). The instant case involves an express waiver, both in the written plea agreement and in open court, and, consequently, our decision in Muehleman does not apply.
Robert Joe LONG, Appellant, v. STATE of Florida, Appellee.
No. 74512.
Supreme Court of Florida.
Oct. 15, 1992.
Rehearing Denied Jan. 26, 1993.
James Marion Moorman, Public Defender and A. Anne Owens, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen. and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Robert Joe Long appeals his sentence of death imposed after a new penalty phase proceeding. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons expressed, we affirm his sentence of death imposed in accordance with the jury’s unanimous recommendation and reaffirm the validity of Long’s guilty pleas.
At the outset, we note that the defense does not dispute that Long murdered the victim in this case, Michelle Denise Simms. The defense argued that Long is severely mentally ill and has been diagnosed as having a bipolar brain disorder and temporal lobe epilepsy, which purportedly resulted from brain damage caused by a series of head injuries. According to the defense, these illnesses caused a condition described by one of Long’s mental health experts as “sexual sadism.” Because of Long’s mental condition, the defense sought a life sentence in the penalty phase proceeding of this case. The jury was not persuaded and returned a unanimous verdict recommending the death sentence. The trial judge agreed and sentenced Long to death for first-degree murder.
Long now challenges his death sentence. To properly address the issues Long has raised, it is necessary to set forth a chronology of events given the number of crimes and homicides for which he has been convicted. In addition to the murder in this case, Long has confessed to seven other murders in Hillsborough County and has been convicted and sentenced to death for a murder in Pasco County. See Long v. State, 610 So.2d 1276 (Fla.1992). He has also been convicted of sexual battery in several other cases in which the victims were not murdered.
Chronology of Events
On November 28, 1984, a Hillsborough County grand jury indicted Long for the kidnapping, sexual battery, and first-degree murder of Simms. This murder occurred on May 27, 1984.
On April 27,1985, Long was convicted of the kidnapping and first-degree murder of another victim, Virginia Johnson, in Pasco County, for which he was sentenced to death on May 10, 1985. Johnson’s body had been discovered on November 6, 1984.
On September 23, 1985, Long entered into a plea agreement in which he pleaded guilty to all offenses charged against him in Hillsborough County. Those offenses included at least eight counts of first-degree murder, nine counts of kidnapping, eight counts of sexual battery, and one probation violation. In accordance with the plea agreement, Long agreed not to contest the admissibility of his confession or of physical evidence found in his car and apartment. In return, the State agreed to life sentences for all of the murders for which he was charged except that of the victim in this case. It was agreed that the State could seek the death penalty for this murder. Additionally, the agreement prohibited the State from using the other Hillsborough murder convictions that resulted from the plea agreement as aggravating factors for the murder in this case. However, it was agreed that convictions entered against Long before he executed the plea agreement could be used against him in aggravation.
On December 11, 1985, Long sought to withdraw the plea, but, on December 12, 1985, he changed his mind and elected not to withdraw his plea. The trial judge subsequently made extensive inquiries of Long in open court before finally accepting the plea agreement. The original penalty phase of this case was then held and the death penalty was imposed. The Pasco County conviction was presented to the jury in the first trial of this case as an aggravation factor, but this court later reversed the Pasco County conviction for reasons we need not address here.
On his first appeal in this case, Long challenged the validity of his guilty plea. We fully addressed that challenge in Long v. State, 529 So.2d 286 (Fla.1988), and found that Long’s guilty plea was valid. However, we found it necessary to vacate Long’s death sentence because we determined that the State’s introduction of Long’s Pasco County murder conviction in the penalty phase of that proceeding was harmful error. We explained that our subsequent reversal of the Pasco County murder conviction eliminated the proper use of that conviction as an aggravating factor.
Upon remand of this case, and before the new penalty phase proceeding, Long again challenged his guilty plea in a pro se motion before the trial court. He asserted that the consequences of the plea had not been fully explained to him. At the motion hearing, Long testified and set forth his claims before the trial judge. The trial judge denied the motion but granted a change of venue for the new penalty phase proceeding.
Evidence Presented in the Penalty Phase Proceeding
At the new penalty phase proceeding, the investigating officer in this case testified that, on May 27, 1984, Simms’ nude body was found in a wooded area along Park Road just north of Interstate 4 near Plant City, Florida; that rope was tied around her front and back and around both of her wrists to restrict movement of her hands; that her throat was cut; and that clothes were scattered around the area. He additionally noted that blood was found on her head and face and that rope burns were present across her neck and chin. Evidence from the medical examiner reflected three possible causes of death: (1) strangulation, (2) head injuries, and (3) bleeding from two knife slashes in her neck.
Evidence of Long’s November 16, 1984, confession, in which he gave the following account of Simms’ murder, was presented to the jury. On the evening before her murder Long purchased some rope, cut it into sections, and put it in the glove compartment of his car. He put a weapon in his car and drove along Kennedy Boulevard in Tampa looking for a prostitute. When he pulled up next to the victim, she asked if he wanted a date, and when he asked how much, she said, “Fifty dollars.” He agreed, she entered the car, and they drove for a distance of a half-mile to a mile. Long then pulled a knife, made the victim undress, reclined the passenger’s seat into a prone position, and, at knife point, tied her up. Long further stated that he then drove fifteen to twenty miles to eastern Hillsborough County where he raped the victim. Afterwards, he talked to her, intending to take her back to where he had picked her up, and he told her he would do so. He stated that, instead, he drove to the Plant City area and tried to strangle her. After the strangulation attempt failed to render the victim unconscious, he hit her on the head with a club, and threw her out of the car. He then cut her throat and left her alongside the road. He stated that he also threw her clothes out of the car.
The State also presented, as aggravating factors, testimony regarding Long’s convictions for two other crimes of violence in which the victims survived. It is important to note that both of these convictions occurred before Long entered into his September 1985 plea agreement in the Hillsborough County murders. The dialogue of the plea agreement clearly establishes that any prior convictions not the result of the plea agreement would be admissible against Long in the penalty phase proceeding. The first crime of violence occurred in Pasco County on March 6, 1984, a little more than two and one-half months before the murder in this case. The circumstances presented to the jury reflected that Long saw a house with a “For Sale” sign in front of it. He went up to the house and knocked on the door. A woman answered and Long asked the woman if he could look at the house. As soon as he gained entry, he placed his arm around the victim’s neck, put a gun to her temple, and walked her into the bedroom. Long then tied her hands behind her back, taped her mouth shut with rope and tape from his pocket, and raped her. Subsequently, he gathered up some jewelry, which he later pawned in Tampa, and left the house. Long was convicted of kidnapping, robbery, and sexual battery for this crime on April 17, 1985. This conviction was rendered approximately five months before Long entered his guilty plea in the Hillsborough County murders.
The second conviction was also for kidnapping, sexual battery, and robbery. This crime occurred on May 29, 1984, approximately two and one-half days after the murder at issue here. In this instance, the victim stated that she received a telephone call concerning her newspaper advertisement to sell furniture. The man told her that he was a salesman for IBM, and she gave him directions to her home in Palm Harbor. A short time later, Long, wearing a three-piece suit, arrived at her house. The victim led Long to the bedroom to show him the furniture. At that point, Long pushed her to the floor, sat on her, and tied her hands behind her. He then blindfolded and gagged her, cut her clothes off, and raped her. Long pleaded guilty to this offense on July 12, 1985, two months before his guilty plea in the Hillsborough County murders.
Long’s mother, his former wife, and other members of his family testified on his behalf concerning his upbringing. This testimony reflected that Long was born when his mother was seventeen, and that, when Long was eight months old, his mother left his father. Other evidence reflected that he slept with his mother off and on until he was approximately twelve years of age and that he disapproved of his mother’s occupation and dress. His mother worked as a carhop and barmaid and wore hot pants, boots, and sexy outfits. At one point she was married to a man who became a father figure to Long and who taught him the electrical trade. However, his mother later determined that the man was already married and, consequently, had the marriage annulled. According to his mother, Long thought a lot of this man, and the annulment hurt him. Long quit school at age fifteen. Later, when Long was sixteen or seventeen, his mother began living with another man, whom Long despised.
Testimony was also presented that Long had suffered the following head injuries: he had fallen out of a swing and was knocked unconscious for a few minutes; he had fallen down a flight of stairs and had been knocked out for fifteen to twenty minutes; he had been hit by a car at age seven and had his face tom up (this resulted in his being hospitalized for a week or more); he had been thrown from a horse and knocked unconscious; and, finally, at age twenty and while in the army, he had been in a serious motorcycle accident in which he had been thrown over a car and had suffered serious head injuries.
Long’s former wife testified that they were married for more than six years and had two children. She testified that after Long’s motorcycle accident he was a different person. She stated that he would explode about little things or nothing at all. Additionally, she indicated that his sexual appetite increased and that he often wanted to have sex three or four times a day. Moreover, she stated that his moods varied, that he experienced temper tantrums in which he sometimes became violent, and that he took amphetamines for nine months to a year after the accident.
Two mental health professionals testified on behalf of Long. The first was Dr. John Money, a professor of medical psychology and pediatrics at John Hopkins University School of Medicine. He testified that Long had the disease of “sexual sadism,” a brain disorder that, according to Dr. Money, caused Long’s criminal behavior. Dr. Money also diagnosed Long as having temporal lobe epilepsy. He indicated that this was a peculiar kind of epilepsy because it does not cause seizures; instead, it causes one to enter an altered state of consciousness. Dr. Money stated that temporal lobe epilepsy often occurs with paraphilia of sexual sadism. He explained that an overlapping syndrome is a manic depressive disorder in which a person experiences alternating periods of extreme high or mania and melancholy or despair. It was his opinion that a head injury could be one hundred percent responsible for sexual sadism. Dr. Money also stated that the change in Long’s sexual behavior from normal to hypersexual following his motorcycle accident and related head injuries was characteristic'of sexual sadism and could result from damage to certain areas of the brain. He stated that Long’s description of his feelings during the two rapes for which he had been convicted and during the murder at issue indicated that he was in an altered state of consciousness brought on by the temporal lobe epilepsy. Dr. Money explained that sexual sadists become sexually aroused by inflicting pain, but that such an individual is also capable of having sex in a normal fashion. Dr. Money expressed the view that, although Long knew what he was doing when he killed Simms, he had no control over his actions and that, in his opinion, Long lacked the capacity to appreciate the criminality of his conduct. He also expressed the view that Long’s ability to conform his conduct to the requirements of law was substantially impaired when he killed Simms.
The second mental health expert who testified on Long’s behalf was Dr. Robert Berland, a forensic psychologist. Dr. Berland interviewed Long on several occasions and subjected him to psychological testing. He determined that Long was above average in intelligence, with an IQ of 118. He diagnosed Long as having four kinds of disorders, two of which were nonpsychotic — paraphilia and antisocial personality disorder — and two of which were psychotic. The two psychotic disturbances consisted of an inherited bipolar or manic depressive psychosis and an organic personality syndrome caused by damage to brain tissue. He believed that the second psychosis may have been caused by Long’s motorcycle accident or his chronic amphetamine abuse following the accident. He explained that, when brain damage is added to an inherited bipolar disorder, the psychosis is worsened. Dr. Berland concluded that, in his opinion, the evidence suggested there was no substantial impairment of Long’s ability to appreciate the criminality of his act in murdering the victim in this case, but he found that Long was substantially impaired in his ability to conform his behavior to the requirements of law because of his mental condition. In Dr. Berland’s view, Long was under the influence of extreme mental or emotional disturbance when he killed the victim and Dr. Berland believed that Long killed her in a fit of rage.
The State, in rebuttal, presented the testimony of Dr. Daniel J. Sprehe. Dr. Sprehe had been appointed by the court to evaluate Long because his counsel filed a notice of intent to rely on the insanity defense. Dr. Sprehe was directed to determine Long’s competency to stand trial and competency at the time of the offense. He based his conclusions on several face-to-face interviews with Long in 1985 as well as a review of relevant records, police reports, and Dr. Berland’s and Dr. Money’s findings. Dr. Sprehe stated that Long told him he had with him a rope, a piece of wood, and a knife when he killed the victim, and that he would not have killed her had a policeman been standing there. He further stated that Long told him he killed the victim to “eliminate a witness” and that Long was not sure whether he hit her with the board to kill her or so she would not suffer. Although Dr. Sprehe stated that Long did suffer from a severe antisocial personality disorder, it was his opinion that Long did not suffer from a mental illness or disease. Additionally, Dr. Sprehe believed that Long’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired.
The Sentence
After hearing the evidence and closing arguments, the jury returned a unanimous verdict recommending the death sentence. The trial judge sentenced Long to concurrent life sentences for the sexual battery and kidnapping counts and imposed the death sentence for the first-degree murder. In doing so, the trial judge found the following aggravating factors: (1) that the crime was committed while Long was engaged in the commission of a kidnapping; (2) that the crime was especially heinous, atrocious, or cruel; (3) that Long was previously convicted of a felony involving the use or threat of violence; and (4) that the crime was committed in a cold, calculated, and premeditated manner. In mitigation, the trial judge found: (1) that Long’s capacity to appreciate the criminality of his conduct or conform his actions to the law was substantially impaired, and (2) that the capital felony was committed while Long was under the influence of extreme mental or emotional disturbance. Finding that the aggravating circumstances outweighed the mitigating circumstances, the trial judge imposed the death penalty. In doing so, he fully articulated the reasons justifying the sentence, stating:
The Court finds and concludes after a proper consideration of the mitigating circumstances that the aggravating circumstances outweigh the mitigating circumstances.
While it is true that the Defendant established a history of mental and emotional problems brought on by a deprived childhood, organic brain damage and use of drugs, it is this Court’s opinion that such problems, in the context of this case, did not give this Defendant, who has a propensity of violence to women as evidenced by his actions in this case and in the cases involving [the two Pasco County convictions], a license to deliberately stalk and abduct a woman he believed to be a prostitute for the purpose of committing sexual battery on her and later murdering her in an especially heinous, atrocious and cruel manner.
Moreover, the evidence is clear that had the Defendant encountered a police officer prior to the murder of his victim, he would not have committed this crime. This evidence, coupled with the deliberate steps the Defendant took to accomplish his nefarious scheme of seeking out, abducting, sexually battering and then killing a woman he believed to be a prostitute serves to lessen the mollifying impact of the mitigating circumstances found by this Court to exist when balanced against the aggravating circumstances found by this Court to exist.
In sum, the two statutory mitigating circumstances found to exist, when balanced against the statutory aggravating circumstances found to exist, do not sufficiently demonstrate that the Defendant lacked the cognitive volitional and moral capacity to act with the degree of culpability associated with the imposition of a sentence of death. That is, even taking into careful consideration the Defendant’s personal and family background and relationships and his emotional and mental health problems, the Court concludes that these two statutory mitigating circumstances did not lessen his culpability when weighed against the statutory aggravating circumstances.
Although this Court is very mindful that it must exercise its independent judgment and discretion in the sentencing process in this case, the Court is in complete agreement with the unanimous recommendation of the jury that this Defendant suffer the ultimate penalty as provided by law.
In that regard it must be emphasized that the jury’s recommendation was in no way contaminated by evidence that the Defendant confessed to and pled guilty to the multiple murders of the other young women as prohibited by the plea agreement.
This Court is convinced beyond all reasonable doubt that this unanimous recommendation of death was based only on the evidence presented at the sentencing proceeding. Therefore, this Court is convinced that based on its own independent review of only the evidence presented at the sentencing proceeding and the additional matters presented by the parties following the sentencing proceeding that death is the only appropriate sentence and that the recommendation of the jury should not be disturbed in that after a careful consideration of all of the relevant aggravating circumstances and mitigating circumstances there is no strong reason to believe that reasonable persons could not agree with this recommendation of death.
Simply put, it is this Court’s independent judgment based on all relevant data that the jury’s recommendation of death is reasonable and that the facts compel a sentence of death in that the facts are so clear and convincing virtually no reasonable person could differ with the imposition of the death sentence in this case.
The Issues
Long claims that the trial court erred in: (1) denying Long’s motion to withdraw his guilty pleas; (2) allowing the hearsay testimony of two detectives regarding the details of the two other rapes as crimes of violence in aggravation; (3) allowing Dr. Sprehe’s testimony during rebuttal because he was appointed to determine competence and sanity rather than determining aggravation and mitigation; (4) denying defense counsel’s motion to exclude Dr. Sprehe’s rebuttal testimony regarding Long's alleged statement that he killed the victim in this case to “eliminate a witness”; (5) permitting Dr. Berland to testify that Long knew right from wrong; (6) denying Long's motion to prohibit television cameras without an adequate hearing; (7) denying Long’s motion to preclude mention during voir dire that the jury verdict was advisory, failing to give a jury instruction that the jury verdict is binding in some circumstances, and denying Long’s motion for a mistrial; (8) allowing the State to make closing arguments that were not based on the evidence in the case and by urging the jury to consider factors outside the scope of jury deliberations; (9) considering transcripts of expert witness testimony because the transcripts contained references to other murders committed by Long; (10) finding that the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification; (11) failing to consider and find nonstatutory mitigating factors which were reasonably established and were not rebutted; (12) sentencing Long to death because it is unconstitutional to execute the mentally ill; and (13) sentencing Long to death because the trial court found both mental mitigating factors and should have found nonstatutory mitigating factors, all of which outweigh the aggravating factors. We have examined each of these assertions and find that only four merit discussion.
In his first claim, Long asserts that he should be entitled to withdraw his guilty pleas. He claims he was not told that his confessions and pleas could be used against him in his Pasco County case as Williams rule evidence to convict him and as aggravation in the penalty phase of that case. He also contends that his attorney led him to believe that the other Hillsborough County homicides could not be used against him in any court.
We fully articulated why Long’s plea agreement was valid in our decision in Long v. State, 529 So.2d 286 (Fla.1988), and we reiterate here our conclusion that Long’s guilty plea was valid. The record clearly reflects Long’s understanding that the convictions occurring before the time he entered into the plea agreement could be used against him in aggravation. Long is an intelligent defendant, and he entered the plea agreement with full knowledge of his prior convictions. His decision to plead was based on a reasonable defense theory to avoid the imposition of the death penalty in the other murders and to escape the death penalty in this case by establishing that he was a severely mentally ill individual.
Long’s claim that he was not told that his confessions and pleas could be used against him in his Pasco County case as Williams rule evidence and as aggravation in the penalty phase if that case was retried is moot. In our decision in Long v. State, 610 So.2d 1276 (Fla.1992), issued contemporaneously with this opinion, we reversed Long’s Pasco County conviction, in part on the ground that his Hillsborough County pleas and confessions were improperly introduced into evidence in that case. Additionally, we held that, upon remand, Long’s pleas and confessions could not be used against him in aggravation during a new penalty phase proceeding. We therefore deny this claim.
In his second claim, Long alleges it was error to allow the State to present evidence in the penalty proceeding regarding his two prior rape convictions. Although the record reflects that Long’s counsel stipulated and agreed that Long had been convicted of those offenses, Long asserts that the hearsay testimony of the investigating officers in those cases should not have been allowed. We disagree. In sentencing proceedings, “evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant.” § 921.141(1), Fla.Stat. (1985). This is true even if the evidence would not be admissible under the exclusionary rules of evidence so long as the defendant has been provided a fair opportunity to rfebut any hearsay statements. See Chandler v. State, 534 So.2d 701 (Fla.1988) (holding section 921.141(1) to be constitutional), cert. denied, 490 U.S. 1075, 109 S.Ct. 2089, 104 L.Ed.2d 652 (1989). Here, when a question was raised about these convictions during the penalty proceeding, the court asked Long’s counsel whether the police report contained correct information. He answered the court’s inquiry by stating that the reports were “complete and correct.” Additionally, he indicated that he could offer no rebuttal to the evidence the State wanted to present regarding these convictions. Given the state of this record, we find no merit in Long’s claim on this point.
Long additionally asserts that it was error for the judge to allow Dr. Daniel Sprehe to testify for the State in rebuttal to the two mental health experts presented by Long in this proceeding given the confidentiality requirement in rule 3.211(e), Florida Rules of Criminal Procedure. Two points are important on this issue. First, Dr. Sprehe was initially appointed because Long’s counsel filed a notice of intent to rely on insanity. Thus, Dr. Sprehe was appointed to determine both Long’s competency to stand trial under rule 3.211 and his sanity at the time of the offense. Dr. Sprehe’s psychiatric examination of Long occurred only after Long had placed his sanity in issue and after notice to his counsel. Additionally, the trial court’s order appointing Dr. Sprehe specifically stated that Dr. Sprehe was to determine whether Long was sane at the time of the offense. Second, and as important, Dr. Sprehe was only allowed to testify in rebuttal to direct mental health testimony presented by Long. Given these circumstances, we find that Dr. Sprehe’s testimony was proper. See Preston v. State, 528 So.2d 896 (Fla.1988) (psychiatrist’s testimony regarding court-ordered psychiatric examination was permissible because examination took place only after defendant placed his sanity in issue and after notice to his counsel), cert. denied, 489 U.S. 1072, 109 S.Ct. 1356, 103 L.Ed.2d 824 (1989); and Hargrave v. State, 427 So.2d 713 (Fla.1983) (defendant who initiates psychiatric examination and introduces psychiatric evidence is precluded from objecting to State’s use of psychiatrist regarding statutory mitigating circumstances). See also Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).
Finally, Long contends that it was error for the trial court to allow Sprehe to testify that Long told him he killed the victim in this case “to eliminate a witness.” In Parkin v. State, 238 So.2d 817, 820 (Fla.1970), cert. denied, 401 U.S. 974, 91 S.Ct. 1189, 28 L.Ed.2d 322 (1971), we did state that “[t]he court should prohibit [a] psychiatrist from testifying directly as to the facts surrounding the crime, where such facts have been elicited from the defendant during the course of a compulsory mental examination.” However, in this case, no objection was made to Dr. Sphere’s statement at the time it was uttered. The objection and motion for mistrial were not made until the jury instruction conference when the parties were discussing the applicable aggravating circumstance instructions. We conclude Long’s claim fails for lack of a timely objection. Even if a timely objection had been made, we find that the admission of that particular testimony was harmless error. The trial judge and counsel agreed that the witness elimination. aggravating factor had not been established, and the judge did not instruct the jury on the aggravating factor of witness elimination. Additionally, the State did not argue this as an aggravating factor to the jury in its closing argument, and it was not used by the trial court in imposing the death penalty in this case. Any error was harmless beyond a reasonable doubt.
As stated, Long’s remaining claims are without merit and do not require discussion. Accordingly, we affirm Long’s sentence of death in this case.
It is so ordered.
BARKETT, C.J., and OVERTON, McDonald, shaw, grimes, kogan and HARDING, JJ., concur.
See Long v. State, 517 So.2d 664 (Fla.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 216 (1988).
Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).
Robert Joe LONG, Appellant, v. STATE of Florida, Appellee.
No. 74017.
Supreme Court of Florida.
Oct. 15, 1992.
Rehearing Denied Jan. 27, 1993.
James Marion Moorman, Public Defender and Steven L. Bolotin, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen. and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Robert Joe Long appeals his conviction of first-degree murder and sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We reverse the conviction and sentence and remand for a new trial.
Long was indicted for first-degree murder in this case on December 6, 1984. Originally, he was convicted and sentenced to death in April 1985. However, on appeal, we reversed that conviction on the grounds that Long’s confession was obtained in violation of his right to counsel under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). See Long v. State, 517 So.2d 664 (Fla.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1754, 100 L.Ed.2d 216 (1988). On remand, an attempt to impanel a jury for his new trial in Pasco County failed and venue was changed to Fort Myers where the new trial, which is the subject of this appeal, was conducted.
At the new trial, the State first introduced evidence to establish the victim’s identity. The facts reflect that the remains of Virginia Johnson, the murder victim in this case, were discovered on November 6, 1984, off a dirt road in Pasco County. The body was badly decomposed. There was a piece of cloth tied around the victim’s neck and a little bit of dark or grey hair on the skull. Additionally, a shoelace was found around the victim’s neck and appeared to have been used as a ligature. A mass of blonde hair and a pair of women’s underpants were found near the body. An autopsy was performed and it was determined that the victim had been dead from ten to fifteen days. The medical examiner noted that the shoelace was wrapped twice around the neck and double knotted. A second shoelace was also found at the crime scene near the small bones of one hand. There were two loops tied in this shoelace, each big enough for a human wrist. The medical examiner testified that the cause of death was “homicidal violence, probably garrotment,” although she could not absolutely rule out other causes of death. Additionally, she could not tell whether the victim was conscious or unconscious at the time of death.
Although the body had been found on November 6, 1984, testimony reflected that it was not until November 18 that the victim was reported missing. A friend reported that she had been missing for about a month, and evidence established that she had officially last been seen by a Hillsborough County nurse on October 15, 1984. After she was reported missing, her parents were contacted and she was identified through the use of her dental records.
After the victim’s identity had been established, the State introduced testimony, over defense counsel’s objection, from L.M., a woman who had been raped by Long. In connection with that rape, Long was convicted of kidnapping and sexual battery. The court instructed the jury that the evidence of these other crimes was to be considered only for the limited purpose of proving Long’s motive, plan, and identity-
L.M. testified to the following. In November 1984, she was working at a doughnut shop in Tampa. On November 3, she got off work around 2:30 a.m. and began to ride home on her bicycle. Before she got home she was abducted at gunpoint and blindfolded. Her abductor dragged her into the passenger seat of his car, loosely tied her hands, and told her to strip. She did so. Because she was blindfolded, she never saw her abductor. However, from underneath the blindfold, she saw that she was in a maroon car with a white interior that had the word “Magnum” on the dashboard. Judging from sounds, it appeared they were driving on the interstate.
They arrived at an apartment building. She had gotten dressed again and her abductor took her up a flight of stairs. Once inside, he raped her four or five times in rapid succession. She saw and felt a gun and believed he had a knife. Several hours before daybreak, the rapes stopped and her abductor slept most of the following day. He untied her hands and feet before daybreak. However, she did not try to get away because she felt that if she cooperated he might not kill her.
Around three o’clock the next morning, her abductor awakened her, told her it was time to go, and asked where she lived. On the way, they stopped at an automatic bank teller machine. When they stopped, she could see a Howard Johnson’s and a Quality Inn located nearby. Her abductor then dropped her off in a parking lot at the intersection of Hillsborough and Rome. He told her to describe him to the police as an “ugly man with a beard.” However, as far as she could see or feel, he appeared to have a pockmarked face, a mustache but no beard, small ears, and brown hair. After he left the area, she walked home and called the police.
The investigating officer stated that the police located the only automatic teller machine in Tampa that was near both a Quality Inn and a Howard Johnson’s. The bank had recorded a transaction on its automatic teller machine at 3:49 a.m. on the day the victim was taken to the parking lot. Bank records revealed that the personal identification number used in the automatic teller machine transaction belonged to Long. The officer also testified that a motor vehicle records search indicated that Long owned a Dodge Magnum automobile.
Further testimony reflected that two other detectives received information that a maroon Dodge Magnum automobile was possibly involved in the rape. On November 15,1984, they saw such a vehicle driven by a man matching the description L.M. had provided. The detectives stopped the vehicle and asked the driver for identification. The driver produced a driver’s license that identified him as Long. The officers then fabricated a story to see if they could get Long to consent to a search. He declined but did allow them to photograph him and his car. Going to the address Long provided as his residence, the officers found a strip of stores with what appeared to be apartments upstairs. Based on this information, warrants were subsequently obtained for his arrest and for searches of his automobile and apartment. Long was arrested on November 16, 1984, and was interrogated at the police department, where he admitted abducting and raping L.M.
Other testimony revealed that the police impounded Long’s car at the time of his arrest. Subsequently, sweepings from his vehicle were evaluated to determine if there was any evidence to connect Long with the murder of Virginia Johnson. A specialist in hair and fiber analysis testified that he found one forcibly removed, bleached-blonde Caucasian hair that was consistent with Johnson’s hair. The expert also testified that he found a single “red lustrous nylon carpet fiber” in the mass of blond hair found by Johnson’s body and that this carpet fiber matched the carpet found in Long’s automobile. However, the expert acknowledged that this was a very common carpet fiber that was manufactured throughout the country.
The State next produced, over defense counsel’s objection, a videotaped interview of Long by CBS News as Williams rule evidence. CBS had interviewed Long for approximately ninety minutes on November 25, 1986. That interview took place after the first Pasco County trial and conviction in this case and after Long had entered into a plea agreement in Hillsborough County wherein he pleaded guilty to eight murders. However, only an edited two-minute portion of that interview was supplied by CBS for viewing by the jury. Before showing the videotape, the trial judge instructed the jury that evidence of other crimes allegedly committed by Long was to be considered only to prove motive, plan, and identity. The videotape was then shown to the jury.
Subsequently, the State produced evidence regarding four of the murders to which Long had pleaded guilty in the Hillsborough County plea agreement. Graphic evidence was presented regarding each murder victim. One decomposed body had been found with a ligature around her neck and with her wrists bound behind her back. Testimony reflected that the cause of death-was strangulation. The second victim was found, nearly nude, in a wooded area; her hands had been tied behind her back with a bloody, green t-shirt; articles of her clothing were lying in the limb of a tree; her arms were tied together; her throat had been cut; and she had suffered severe head injuries. Three photographs of the victim were presented to the jury. Testimony regarding the third murder victim reflected that the victim had been found, semi-nude, in an orange grove and she was bound with cords and shoelaces. Two photographs of this body were presented to the jury. Finally, evidence of the fourth murder victim was presented. Testimony showed that the victim’s nude body was found off the side of a road. There were no ligatures or bindings found on the body or at the scene, but there were ligature marks on the neck and forearms. The medical examiner concluded that her death was caused by strangulation.
Next, the State presented hair, fiber, and tire track evidence from each of the crimes. Defense counsel objected to the tire track evidence because no such evidence had been present in the instant case. Nevertheless, the trial judge allowed the evidence. Additionally, the fiber analyst expert testified that the fibers taken from each of the victims matched the fiber found in the mass of blond hair found next to the victim in this case. Evidence of other fibers, not present in this case but present in the other cases, was also introduced and testimony connected these fibers to Long. Similarly, hair sample evidence was presented that connected the victims to Long.
Finally, the State introduced into evidence the fact that Long had pleaded guilty in accordance with the Hillsborough County plea agreement to each of the Hillsborough County murders outlined above. The State then rested. Long’s counsel moved for a mistrial based on the State’s use of Williams rule evidence. Counsel argued that the murders were not similar enough to the charged crime to justify admission of evidence regarding those murders. Additionally, counsel noted that the court had heard nearly three days of testimony, but that only four hours of that testimony actually related to the murder at issue. Counsel contended that the Hillsborough County murders, rather than the crime for which Long was charged, had become the central feature of the trial. The motion for mistrial was denied.
Subsequently, the jury returned a guilty verdict, recommending by a nine-to-three vote that the death penalty be imposed. The trial judge sentenced Long to death and this appeal followed.
Long claims that the trial judge erred by allowing the State to introduce: 1) edited portions of the CBS videotaped interview of Long while denying Long access to the remaining portions of the videotape; 2) the televised portion of the CBS videotape because it showed only criminal propensity and because it referred to the Hillsborough County murders that Long claims were improperly introduced as Williams rule evidence; 3) evidence of other crimes that became the overwhelming feature of the trial; 4) irrelevant and highly prejudicial Williams rule evidence of a rape for which Long was convicted; and 5) evidence of four Hillsborough County murders to which he had previously confessed. For the reasons expressed below, we find that several of these claims have merit and, consequently, that Long is entitled to a new trial.
We first address Long’s contentions regarding the CBS videotaped interview of Long. Long argues that the State’s introduction and use of selected portions of the interview deprived Long of his basic state and federal constitutional rights including the right to due process, the right to a fair trial, the right to compulsory process for obtaining material evidence, the right to present evidence in his own behalf, and the right to confrontation of adverse witnesses because Long was denied access to the remaining portions of the taped interview. We agree. Originally, the trial judge granted Long’s pretrial motion compelling CBS to comply with a subpoena to produce the entire unedited videotaped interview. CBS moved to quash the subpoena under the First Amendment. When the trial judge denied CBS’s motion, CBS appealed this issue to the Second District Court of Appeal. Despite defense counsel’s objection and the fact that this issue was pending before the district court, the trial judge elected to proceed with the trial.
During the course of the trial but before the district court’s decision, CBS did produce an additional thirteen-minute videotape consisting of “context out-takes” taken from the ninety-minute interview. That same day, the district court issued its opinion requiring CBS to release the entire interview. CBS, Inc. v. Cobb, 536 So.2d 1067 (Fla. 2d DCA 1988). By that time, however, the guilt phase of the trial was already completed, and the trial judge refused to order CBS to produce the entire videotape as requested by the defense. The trial judge ruled that the thirteen-minute portion was sufficient to determine whether other portions of the interview should have been admitted.
It is well established that, when the State offers in evidence a part of a confession or admission, the accused, in the interest of fairness, is entitled to bring out the remainder of that confession or admission. This concept is expressly set forth in section 90.108, Florida Statutes (1987), which provides in part:
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously.
This requirement was clearly violated in this instance. We therefore find that the trial judge erred in refusing to stay the proceedings until CBS complied with the court orders and produced the entire videotaped interview. As noted by the Second District Court of Appeal in Cobb, “Long is at somewhat of a disadvantage in that he cannot determine whether [the fairness of introducing other portions of the videotaped interview] arises in this case — or even whether there is anything on the tape he may want the jury to hear — without first viewing the entire statement.” 536 So.2d at 1070. The law is clear that, once the State opened the door by introducing Long’s statements during the interview, Long was entitled to have the entire interview or portions thereof placed into evidence in the interest of fairness.
We disagree, however, with Long’s contention that no part of the videotape is admissible because it merely shows criminal propensity and because it refers to the Hillsborough County murders that Long claims were improperly introduced as Williams rule evidence. We find that, upon remand, the videotape may be admissible as an admission against interest; however, whether portions of it are irrelevant or whether the probative value of some of Long’s statements are substantially outweighed by unfair prejudice are issues that can be addressed in the new trial. We emphasize that, pursuant to an order of this Court, CBS has now produced a videotape of the entire interview, and that videotape is currently available to both the State and Long.
Long next challenges the introduction of evidence regarding other crimes to which he pleaded guilty under a plea agreement entered into in Hillsborough County after the first trial of this cause but before the reversal of the first conviction in this case. Long asserts that he was deprived of a fair trial and due process because the prosecution was allowed to make the evidence of these other crimes the overwhelming feature of this trial. He also asserts that these other crimes were improperly admitted as Williams rule evidence.
The record reflects that these other crimes did become the central feature of this trial. Approximately four hours of testimony was presented concerning the murder in issue in this case while more than three days of testimony was presented concerning these other offenses. Under the unique circumstances of this case, including the plea agreement, we find that the four other murders could not be presented at this trial. We decline, however, to hold that all of the evidence regarding the L.M. incident is inadmissible. We note that the confession Long made in the L.M. case is valid and was made before he entered into the Hillsborough County plea agreement. Long was initially apprehended, as previously noted, through information supplied by L.M., and it was that arrest and the subsequent examination of his vehicle that supplied hair and fiber samples connecting him to the victim in this case. As such, that evidence is clearly admissible to establish Long’s identity and to connect him to the victim in this case. However, in our view, the details of Long’s treatment of L.M. in his apartment and his guilty plea are not admissible under the circumstances of this case.
Finally, with regard to the penalty phase, we note that the Hillsborough County pleas and convictions were considered as factors in aggravation against Long. In the Hillsborough County case, Long pleaded guilty to eight murders in return for, among other things, the promise that his guilty pleas would not be used against him in other subsequent penalty proceedings. Although that agreement was drafted to apply only to Hillsborough County and the Thirteenth Judicial Circuit, the record of the plea proceedings in that case indicates that both parties understood the agreement to mean that the pleas could not be used adversely against Long in any subsequent proceeding. Obviously, at the time he entered into that agreement, the first trial in this case had been completed and the death sentence had been imposed. Thus, although the record clearly reflects Long’s understanding that offenses for which he was convicted before he entered into the plea agreement could be used against him, there was no mention of the use of Long’s Hillsborough County pleas in a subsequent retrial of this case. Little doubt exists that one of the major benefits intended to be received by Long in entering into the plea agreement was that his guilty pleas could not be used against him in subsequent proceedings. Consequently, to ensure the continued validity of the Hillsborough County plea agreement, we find that it was error to allow evidence of those murders to be introduced in aggravation against him in this case. We emphasize, however, that our ruling in this case does not preclude the introduction of relevant evidence regarding offenses for which Long was convicted before he entered into the Hillsborough County plea agreement.
Accordingly, we reverse Long’s conviction and sentence of death and remand for a new trial at which: (1) the CBS interview may be admitted into evidence provided the entire videotape is available for viewing by the jury; (2) evidence of the murders to which Long entered guilty pleas in the Hillsborough County plea agreement may not be admitted under the circumstances of this case; (3) testimony concerning the L.M. incident may be admitted to identify Long in this case so long as the details of Long’s treatment of L.M. in his apartment and his subsequent plea of guilty in that case are excluded; and (4) evidence of the Hillsborough County guilty pleas and convictions resulting from Long’s plea agreement may not be admitted as aggravating factors given the terms of the plea agreement.
It is so ordered.
BARKETT, C.J., and OVERTON, McDonald, SHAW, GRIMES and HARDING, JJ., concur.
KOGAN, J., concurs in result only as to the conviction, and concurs as to the sentence.
Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).
Long was first convicted and sentenced to death in this case in April 1985. He pled guilty to the Hillsborough .County murders on September 23, 1985. The plea agreement is described in Long v. State, 529 So.2d 286 (Fla.1988).
We note that a significant part of the evidence that we determine to be inadmissible in this second trial was not available or presented in the first trial.
In Long, 517 So.2d 664, we determined that Long’s confessions to a number of murders had been obtained in violation of his right to counsel. However, his confession regarding the L.M. incident was obtained before Long indicated that he needed an attorney and before his right to counsel had been violated.
See, for example, the convictions used in aggravation against Long in the penalty phase proceeding of the Michelle Simms murder in Hillsborough County and described in our affir-mance of Long's conviction and sentence in that proceeding issued in Long v. State, 610 So.2d 1268 (Fla.1992).
Robert J. LONG, Appellant, v. STATE of Florida, Appellee.
No. 83593.
Supreme Court of Florida.
March 6, 1997.
James Marion Moorman, Public Defender and A. Anne Owens, Assistant Public Defender, Tenth Judicial Circuit, Bartow, for Appellant.
Robert A. Butterworth, Attorney General and Robert J. Landry, Assistant Attorney General, Tampa, for Appellee.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Robert J. Long, a/k/a Bobby Joe Long. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. Long is a serial killer who has had two separate cases before this Court involving the death penalty: one for the murder of Virginia Johnson (this case) and one for the murder of Michelle Simms. The Simms conviction was the result of a Hillsborough County plea agreement between the State and Long, in which Long pleaded guilty to eight murders in exchange for life sentences on all but the Simms murder. In the Simms case, the State was allowed to seek and Long was eventually sentenced to the death penalty. The agreement provided that the State would not use the convictions obtained through the plea agreement in subsequent proceedings. The instant case, which involves the Johnson murder, occurred in Pasco County and is now before us for the third time.
A number of the problems surrounding this case have involved the use of facts from the Hillsborough County cases to obtain a conviction in this case. In analyzing the issues before us here, we must emphasize the importance of upholding the Hillsborough plea agreement to sustain the eight murder convictions obtained against Long through that agreement. Because of the limited evidence available in this case due to that agreement, we are compelled to conclude that there is insufficient evidence available to find Long guilty beyond a reasonable doubt of the first-degree murder at issue. As a result, we must reverse the conviction in this case.
The facts of this case as presented at trial are as follows. Virginia Johnson was an eighteen-year-old prostitute who was last seen around the middle of October 1984. On November 6, 1984, the skeletal remains of her body were discovered off a dirt road in Pasco County, Florida. Bones, hair, panties, two shoelaces, and a cloth item were found with the remains. One shoelace had been wrapped twice around the victim’s neck. The other shoelace was found wrapped around the victim’s hand. It was estimated that the victim had been dead from ten to fifteen days. The cause of death was most likely the result of “homicidal violence, probably garrotment.” The victim was identified through dental records.
On November 16,1984, Long was arrested for the abduction of L.M., who was allowed to testify in this case as to some of the details of her abduction. After Long was arrested in the L.M. ease, his automobile was impounded and an extensive search of the vehicle was conducted. Two hairs found in the car were consistent with the victim’s hair in this case. Additionally, a carpet fiber found at the crime scene matched the carpet of Long’s automobile.
The State introduced a portion of a videotaped CBS interview of Long. In the tape, Long specifically referred to abducting L.M. and gave vague references to the fact that he had killed others. In addition to other statements, he told the interviewer:
When I saw them walking down the street, it was like A, B, C, D. I pull over, they get in, I drive a little ways, stop, pull a knife, a gun, whatever, tie them up, take them out. And that would be it. And they all went exactly the same until L.M. came along.
On this evidence, Long was convicted of first-degree murder.
At the penalty-phase proceeding, the State relied on the evidence produced at trial and introduced evidence of Long’s prior convictions, including burglary, kidnapping, armed robbery, and several sexual batteries. No murder convictions were introduced. Long put on no evidence in mitigation. The jury recommended death by a vote of seven to five. The trial judge followed that recommendation, finding three factors in aggravation, one statutory mitigating factor, and several nonstatutory mitigating factors.
Long raises twelve issues in this appeal, one of which we find to be dispositive.
Long argues that the evidence in this case is insufficient to sustain the conviction for first-degree murder. Based on the evidence presented, the law requires us to agree. The State bears the responsibility of proving a defendant’s guilt beyond and to the exclusion of a reasonable doubt. Cox v. State, 555 So.2d 352 (Fla.1989); Davis v. State, 90 So.2d 629 (Fla.1956). In order for the State to prove premeditated first-degree murder through circumstantial evidence, the evidence must be inconsistent with any reasonable hypothesis of innocence. Bedford v. State, 589 So.2d 245 (Fla.1991), cert. denied, 503 U.S. 1009, 112 S.Ct. 1773, 118 L.Ed.2d 432 (1992); Wilson v. State, 493 So.2d 1019 (Fla.1986); McArthur v. State, 361 So.2d 972 (Fla.1977). The question of whether the evidence is inconsistent with any other reasonable inference is a question of fact for the jury. Bedford, 589 So.2d at 250; Holton v. State, 573 So.2d 284 (Fla.1990), cert. denied, 500 U.S. 960, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991). Nevertheless, a jury’s verdict on this issue must be reversed on appeal if the verdict is not supported by competent, substantial evidence. Evidence that creates nothing more than a strong suspicion that a defendant committed the crime is not sufficient to support a conviction. Cox; Scott v. State, 581 So.2d 887 (Fla.1991); Williams v. State, 143 So.2d 484 (Fla.1962).
In this case, the State introduced evidence that Long abducted and then released L.M.; that a search of Long’s car after he was apprehended for the L.M. abduction revealed two hairs consistent with that of the victim; that a carpet fiber from the scene of the crime matched the carpet in Long’s car; and that Long made vague statements to the effect that he had killed “others.” While the hair and fiber evidence in conjunction with the other evidence m this case certainly raises a very strong suspicion that Long killed the victim, we find that it is insufficient to establish beyond a reasonable doubt that he did so. First, no one saw Long with the victim, and no statements were introduced in which Long stated that he killed the victim in this case. Further, as explained below, the critical evidence linking Long to the murder in this case, the two strands of hair and the carpet fiber, is not competent to support the conviction.
Hair comparisons cannot constitute a basis for positive personal identification because hairs from two different people may have precisely the same characteristics. Scott v. State, 581 So.2d 887 (Fla.1991); Cox; Horstman v. State, 530 So.2d 368 (Fla. 2d DCA), review denied, 539 So.2d 476 (Fla. 1988); Jackson v. State, 511 So.2d 1047 (Fla. 2d DCA 1987). Moreover, even where evidence does produce a positive identification, such as fingerprints, the State must still introduce some other evidence to link a defendant to a crime. See, e.g., Jaramillo v. State, 417 So.2d 257 (Fla.1982) (where only evidence connecting defendant to crime was fact that defendant’s fingerprints were left at scene, evidence insufficient to convict). Here, the other evidence connecting Long to this murder was the carpet fiber; yet the State introduced no evidence to indicate that the carpet fiber could have come only from Long’s car or that the carpet was placed in only a few cars.
The facts of this case are similar to those presented to us in Cox. In that case, the evidence reflected that hair and blood consistent with the defendant’s were found in the victim’s car. Also found in the car was a boot print that appeared to have been made by a military boot and the defendant was in the military. The defendant did not know the victim and no one testified that they had been seen together. While we noted that this evidence created a suspicion that Cox had murdered the victim, it did not prove beyond a reasonable doubt that he had done so. This was especially true given that hair analysis and comparison is not an absolutely certain and reliable method of identification. Just as we were compelled to find the evidence insufficient in Cox, so, too, must we do here.
In holding that the evidence in this case was insufficient, we recognize that the State was limited in the evidence it could introduce given our previous rulings in this case. However, as we indicated previously, the evidence that could be introduced in this ease was extremely limited because of previously committed errors and the need to uphold the Hillsborough County plea agreement. In fact, in one of his other issues in this proceeding, Long contends that the evidence introduced regarding the L.M. incident violated that agreement. Our resolution of the sufficiency-of-the-evidenee claim, however, precludes the need for this Court to address the proper admission of that evidence.
Accordingly, for the reasons expressed, we vacate Long’s death sentence, reverse his conviction, and remand to the trial court with directions to enter an order of acquittal for this crime.
It is so ordered.
OVERTON, SHAW, GRIMES, HARDING, WELLS and ANSTEAD, JJ., concur.
See Long v. State, 610 So.2d 1268 (Fla.1992), cert. denied, 510 U.S. 832, 114 S.Ct. 104, 126 L.Ed.2d 70 (1993).
Long v. State, 517 So.2d 664 (Fla.1987); Long v. State, 610 So.2d 1276 (Fla.1992).
Long was previously convicted of another violent felony, the murder was especially heinous, atrocious, or cruel (HAC), and the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP).
Long’s capacity to conform his conduct to the requirements of law was substantially impaired.
Long was slightly remorseful, had rescued a cousin from drowning, was a good father, had mental problems that did not reach a statutory mitigating level, and was mistreated as a child.
Long contends that (1) the trial judge erroneously allowed the testimony of L.M. regarding her abduction by Long; (2) the trial judge erred in admitting into evidence the CBS taped interview of Long because Long was told it could not be used against him; (3) the trial judge erred in admitting the taped interview because it was irrelevant and concerned crimes that were excluded by the plea agreement; (4) the trial judge erred in allowing opinion testimony by a hair and fiber expert; (5) the evidence was insufficient to sustain a conviction; (6) hearsay evidence on other victims in police reports was erroneously read to the jury; (7) the murder was not CCP; (8) the jury instruction on HAC was unconstitutional; (9) the murder was not HAC; (10) the trial judge improperly found and weighed factors in mitigation; (11) the death penalty is inappropriate under the circumstances of this case; and (12) the death penalty is unconstitutional.
We note that in Crump v. State, 622 So.2d 963 (Fla. 1993), the defendant was convicted on evidence similar to that presented in this case. However, in that case, the defendant had confessed to a previous murder that was almost identical to the crime at issue and that previous murder was used to prove identity under the Williams rule. Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). While we did state in Long v. State, 610 So.2d 1276 (Fla. 1992), that the L.M. abduction could be used to prove identity, we did not do so in the Williams rule context; we did so to enable the State to show how Long was apprehended and identified as possibly being connected to this crime. Further, Long did not kill L.M. and the L.M. incident is insufficiently similar to qualify for admission under the Williams rule.