| [1] | SUPREME COURT OF FLORIDA |
| [2] | No. 81,793 |
| [3] | 1996.FL.43861 <http://www.versuslaw.com> |
| [4] | decided: March 28, 1996. |
| [5] | VIRGINIA GAIL LARZELERE, APPELLANT, v. STATE OF FLORIDA, APPELLEE. |
| [6] | An Appeal from the Circuit Court in and for Volusia County, John W.
Watson, III, Judge - Case No. 91-2561 CFAES. |
| [7] | James B. Gibson, Public Defender and Christopher S. Quarles, Assistant
Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, for
Appellant. |
| [8] | Robert A. Butterworth, Attorney General and Gypsy Bailey, Assistant
Attorney General, Tallahassee, Florida, for Appellee. |
| [9] | Grimes, C.j., and Overton, Shaw, Kogan, Harding, Wells and Anstead,
JJ., concur. |
| [10] | Per Curiam. |
| [11] | Virginia Gail Larzelere appeals her conviction of first-degree murder
and the trial court's imposition of the death penalty. We have
jurisdiction. Art. V, § 3(b)(1),
Fla. Const. For the reasons expressed, we affirm the conviction and
sentence. |
| [12] | The appellant was married to Norman Larzelere (the victim), a dentist,
and she worked as the office manager for his dentistry practice. On March
8, 1991, at approximately one o'clock in the afternoon, a masked gunman
came into the victim's dental office, chased the victim, shot him with a
shotgun, and fled. The victim died within a short time after being shot.
At the time of the shooting, a dental assistant, a patient, and the
appellant were in the office. |
| [13] | The appellant and her adult son, Jason Larzelere,*fn1
were charged with the victim's murder. The State's theory was that the
appellant and Jason conspired to kill the victim to obtain approximately
$2 million in life insurance and $1 million in assets. Jason and the
appellant were tried separately. The appellant was tried
first. |
| [14] | The State presented the following evidence at the appellant's trial.
Two men testified that they had affairs with the appellant during her
marriage to the victim and that the appellant asked them to help her have
her husband killed. Two other witnesses, Kristen Palmieri and Steven
Heidle, were given immunity and testified to a number of incriminating
actions and statements made by the appellant and Jason regarding the
murder. Specifically, their statements reflected that the night before the
murder the appellant sent Jason to a storage unit to pick up documents,
which included the victim's will and life insurance policies; that the
appellant told Jason after the murder, "Don't worry, you'll get your
$200,000 for taking care of business"; that the appellant told both
witnesses that Jason was the gunman and that he "screwed up . . . he was
supposed to be there at 12:30, but he was a half hour late, so [the dental
assistant] and a patient were there. That's why I had to fake a robbery.";
that the appellant directed the two witnesses to dispose of a shotgun and
a .45 handgun by having them encase the guns in concrete and dump them
into a creek; and, that, in the days following the murder, Jason and the
appellant reenacted the murder, with Jason playing the role of the gunman
and the appellant playing the role of the victim. With Heidle's
assistance, police recovered the guns from the creek but were unable to
conclusively determine whether the shotgun was the murder
weapon. |
| [15] | Additional testimony reflected that the appellant gave several
conflicting versions of the murder to police, with differing descriptions
of the gunman and the vehicle in which he left. The patient who was
present at the time of the murder heard the victim call out just after he
was shot, "Jason, is that you?" |
| [16] | It was further established that over the six-year period preceding the
murder, the appellant obtained seven different life insurance policies on
the victim and that within the six months preceding his death, the
appellant doubled the total amount payable on his life from over $1
million to over $2 million. Although the victim assisted in obtaining
these policies, it was shown that the appellant was the dominant motivator
in securing the policies. In addition, evidence was introduced to show
that the appellant gave false information and made false statements to
obtain the policies (in securing the policies she falsely represented to
several insurance agents that pre-existing policies had been cancelled,
did not exist, or were being replaced by the new policy). Further, soon
after the victim's death, the appellant filed a fraudulent will,*fn2
which left the victim's entire estate to the appellant. The fraudulent
will was prepared on the same date one of the largest insurance policies
on the victim's life became effective. |
| [17] | In her defense, the appellant presented evidence in an attempt to show
that her inconsistent versions of the murder were due to her state of mind
due to the distress of having just lost her husband; that the victim
assisted in obtaining all of the insurance policies; that the appellant's
lovers did not think she was serious about having her husband killed; that
Heidle and Palmieri were not believable and perjured themselves; and that
Heidle and Palmieri were unable to obtain incriminating statements from
the appellant after they had been requested to do so by
police. |
| [18] | The jury found the appellant guilty as charged. |
| [19] | No evidence was presented by either side at the penalty phase
proceeding. The jury recommended death by a seven-to-five vote. In his
sentencing order, the trial judge found the following two factors in
aggravation: cold, calculated, and premeditated and committed for
financial gain. He found no statutory mitigating factors, but he did find
the following non-statutory mitigating factors: ability to adjust and
conform to imprisonment (marginal weight); and the appellant was not the
shooter (insignificant weight due to fact that appellant was the
mastermind behind the killing). Finding that the two aggravating factors
outweighed the relatively minor mitigating evidence, the trial judge
sentenced the appellant to death. |
| [20] | Following the appellant's trial, Jason was tried and acquitted of all
charges. |
| [21] | GUILT PHASE |
| [22] | Appellant raises twelve issues regarding her conviction phase
proceeding. First, she contends that the trial judge improperly limited
her impeachment of Stephen Heidle, one of the State's key witnesses.
Appellant attempted to introduce the testimony of two witnesses who would
have testified as to Heidle's unsavory reputation for truth and veracity.
After hearing the proffered testimony of the witnesses, however, the trial
judge excluded this testimony on the grounds that the witnesses' knowledge
of Heidle was too limited and that the community from which their
knowledge arose was too small to establish sufficient reliability.
Appellant argues that these were the only witnesses who could testify
concerning Heidle's reputation for truthfulness given his limited exposure
to others in the months preceding the murder and that the failure to allow
this testimony deprived the appellant of a fair trial. |
| [23] | Under section 90.609, Florida Statutes (1991), a
party may attack the credibility of a person by introducing character
evidence in the form of reputation provided that the evidence relates only
to the person's reputation for truthfulness. Section 90.405 governs the type of evidence that may be used
to prove reputation. As a predicate to the introduction of such evidence,
a foundation must be laid to prove that the witness testifying as to
reputation is aware of the person's general reputation for truthfulness in
the community. Charles W. Ehrhardt, Florida Evidence § 405.1 (1995 ed).
Essentially, it must be established that the community from which the
reputation testimony is drawn is sufficiently broad to provide the witness
with adequate knowledge to give a reliable assessment. This assessment
must be based on more than "mere personal opinion, fleeting encounters, or
rumor." Rogers v. State, 511 So.2d 526, 530 (Fla.
1987), cert. denied, 484 U.S. 1020, 108 S. Ct. 733, 98 L. Ed. 2d 681
(1988). Further, reputation evidence "must be based on discussions among a
broad group of people so that it accurately reflects the person's
character, rather than the biased opinions or comments of . . . a narrow
segment of the community." Ehrhardt, supra, § 405.1 at 197 (footnote
omitted). |
| [24] | In this case, the proffered testimony of the two proposed witnesses
indicated that they both knew Heidle from a very limited community segment
and for a very limited period of time. They both knew Heidle through a
small number of individuals from his association at gay bars. Moreover,
each of the witnesses had known Heidle for less than four months before
the murder occurred. After reviewing the proffered testimony, the trial
judge declined to admit this reputation evidence based on the limited
amount of time the witnesses had known Heidle, the limited number of
people from whom this reputation evidence was gathered, the extremely
narrow section of the community from which the witnesses knew Heidle, and
the fact that the testimony would be based largely on personal opinion and
rumor. Under these circumstances, we cannot say that the trial judge
abused his discretion in refusing to admit this testimony. See Heath v.
State, 648 So.2d 660 (Fla. 1994)(trial court has wide discretion in ruling
on the admissibility of evidence and its rulings will not be disturbed
absent an abuse of discretion), cert. denied, 115 S. Ct. 2618, 132 L. Ed.
2d 860 (1995); Welty v. State, 402 So.2d 1159 (Fla.
1981)(same); Wisinski v. State, 508 So.2d 504 (Fla.
4th DCA)(trial court did not abuse its discretion in refusing to admit
reputation testimony given the small number of people, the limited
cross-section, and the relatively short period of time on which the
reputation testimony was based), review denied, 518 So.2d 1279 (Fla. 1987); Gamble v. State, 492 So.2d 1132 (Fla. 5th DCA 1986)(trial judge has wide discretion in
admitting or excluding reputation testimony; one learns of another's
general reputation in a community over a period of time and through
miscellaneous contact with many people). |
| [25] | Even were we to find that the trial judge abused his discretion in
excluding this testimony, we would find such error to be harmless. Defense
counsel conducted an extensive cross-examination of Heidle and impeached
him with evidence that he had an illegal identification card, had a
pending DUI charge, had committed perjury, and had lied to police. The
State even conceded to the jury that Heidle probably had not testified
truthfully as to the full extent of his involvement in this crime.
Consequently, we find beyond a reasonable doubt that the exclusion of this
evidence did not have an effect on the outcome of the jury's verdict.
State v. DiGuilio, 491 So.2d 1129 (Fla.
1986). |
| [26] | In her next issue, appellant argues that the trial judge erroneously
denied her motion for mistrial, which was based on Kristen Palmieri's
statement that Jason had used cocaine in her presence. The record reveals
that, before Palmieri testified, the State stipulated that evidence
regarding Jason's purported drug use was inadmissible. As a result,
Palmieri was instructed to avoid mentioning this subject. During her
testimony, however, she inadvertently made the following statement in
discussing the victim's funeral: "As I was getting dressed downstairs,
Jason proceeded to come downstairs and do coke in the tanning room in
front of me." Defense counsel immediately moved for a mistrial. The trial
judge denied the motion but struck the offensive testimony and instructed
the jury to disregard it. According to appellant, the motion should have
been granted because the introduction of testimony that the appellant's
son and co-conspirator was snorting cocaine prior to the victim's funeral
could not have been disregarded by the jury and because it implicated the
appellant based on "guilt by association." We disagree. This statement was
not solicited by the State, was apparently inadvertent on the part of the
witness, and was in no way suggestive of the appellant's guilt. Even
though the State's theory was that the appellant and Jason committed this
crime together, the appellant was portrayed as the orchestrator of the
crime and no reference was made to any drug use on her part. We find that
this brief reference to Jason's drug use was insufficient to warrant a
mistrial given its limited nature and the trial court's curative
instructions. Cf. Craig v. State, 510 So.2d 857, 865
(Fla. 1987)("We are not persuaded that any prejudice flowed from the
evidence of illegal drug use when there was ample direct evidence of
appellant's guilt . . . of first-degree murder."), cert. denied , 484 U.S.
1020, 108 S. Ct. 732, 98 L. Ed. 2d 680 (1988). |
| [27] | Appellant also asserts that the trial judge erred in refusing to
specially instruct the jury. The appellant asked the judge to instruct the
jury that the jury should consider the witnesses' interest in the outcome
of the case; that the fact one party called more witnesses and introduced
more evidence should not necessarily result in a verdict for that side;
that the testimony of police officers should not be given more or less
weight than the testimony of other witnesses; and that accomplice
testimony must be scrutinized with great care. The appellant also
requested that the jury be given the former standard jury instruction on
circumstantial evidence. The trial judge refused to give these
instructions. Although the appellant concedes that most of these
instructions are covered in the standard jury instructions, she asserts
that the requested instructions were warranted because they would have
offered a more thorough and accurate explanation of the applicable law.
Further, she asserts that the requested instructions on circumstantial
evidence and credibility of the police are not covered by the standard
instructions and that the failure to give her requested instructions
deprived her of due process. |
| [28] | As conceded by the appellant, all but two of the requested
instructions are covered by the standard jury instructions. We find that
the standard instructions provide adequate guidance in this regard. As to
the other two instructions, we note that the appellant withdrew her
requested instruction regarding the credibility of police, and we find her
requested instruction on circumstantial evidence was properly denied. In
1981, this Court eliminated the circumstantial evidence instruction from
the standard instructions. See In re Use by Trial Courts of Std. Jury
Instr. in Crim. Cases, 431 So.2d 594 (Fla.),
modified, 431 So.2d 599 (Fla. 1981). In eliminating
this instruction, we did state that judges could continue to use the
instruction if, in their discretion, they felt it was appropriate.
Nevertheless, we concluded that "the giving of the . . . instructions on
reasonable doubt and burden of proof . . . renders an instruction on
circumstantial evidence unnecessary." Id. at 595. |
| [29] | Next, appellant contends that the trial judge erred in admitting
selected portions of taped statements and in refusing appellant's request
to introduce the complete statements. At trial, the State introduced
selected portions of taped statements the appellant and Jason made to
police. Defense counsel objected to the introduction of this evidence and
requested, under the "doctrine of completeness" and section
90.108, Florida Statutes (1991), that the entire
tapes be introduced. The judge refused to allow the statements to be
played in their entirety during the State's case-in-chief on the ground
that the defense had not established prejudice by the partial introduction
of the tapes at that time. The judge stated that the defense could
introduce the tapes in their entirety during its case-in-chief. The
appellant argues that a showing of prejudice is not required, that section
90.108 allows an adverse party to require the
contemporaneous introduction of the entire taped statements, and that the
failure of the court to allow this testimony deprived appellant of a fair
trial. |
| [30] | Section 90.108, Florida Statutes (1991), provides
in pertinent part: |
| [31] | 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. |
| [32] | This rule is known as the "rule of completeness," and its purpose is
to avoid the potential for creating misleading impressions by taking
statements out of context. Ehrhardt, supra, § 108.1. Under this provision,
once a party "opens the door" by introducing part of a statement, the
opposing party is entitled to contemporaneously bring out the remainder of
the statement in the interest of fairness. Long v. State, 610
So.2d 1276 (Fla. 1992). This right, however, is not absolute.
For instance, in Correll v. State, 523 So.2d 562, 566
(Fla.), cert denied, 488 U.S. 871, 109 S. Ct. 183, 102 L. Ed. 2d 152
(1988), we stated: |
| [33] | Ordinarily, a defendant's statement should be introduced into evidence
in its entirety, absent totally extraneous matters. However, the trial
court here concluded that the matters contained in the last portion of
Correll's statement were irrelevant. We cannot say that the judge abused
his discretion in so ruling, particularly since he made it clear that
Correll was at liberty to introduce the redacted portion himself. Even
Correll must not have believed that the redacted portion was of great
significance because he did not seek to introduce it in his case-in-chief,
even though he presented several witnesses in his defense. |
| [34] | See also Mulford v. State, 416 So.2d 1199, 1201
(Fla. 4th DCA 1982)(section 90.108 gives parties
"only a qualified right to seek the admission" of an entire
statement)(emphasis added); Ehrhardt, supra, § 108.1 at 35 ("Under . . .
section 90.108, the remainder to the document or
writing is not automatically admissible when requested or offered by the
adverse party."). Under a plain reading of the statute, parties may seek
the introduction of other statements when those statements "in fairness
ought to be considered contemporaneously" with the introduction of the
partial statement. § 90.108, Fla. Stat. Such a
fairness determination falls within the discretion of the trial judge.
Correll (trial judge did not abuse his discretion in holding matters
irrelevant). |
| [35] | In this case, the State asked to introduce only selected portions of
the statements made by the appellant and Jason, contending that the
remaining portions of the statements were not relevant. The trial judge
allowed the selected portions to be played over defense counsel's
objection because defense counsel was unable to establish how the
appellant would be prejudiced by the introduction of the partial
statements. The trial judge ruled, however, that the defense could
introduce the remaining portions of the statements during its
case-in-chief. We find that the trial judge erred in requiring the defense
to show prejudice. As indicated above, the correct standard is whether, in
the interest of fairness, the remaining portions of the statements should
have been contemporaneously provided to the jury. After a full reading of
the record, however, we find this error to be harmless because there is no
reasonable probability that exclusion of the redacted statements affected
the outcome of the jury's verdict. State v. DiGuilio, 491 So.2d
1129 (Fla. 1986). The statements introduced by the State
constituted only a finite portion of the extensive record in this case.
Moreover, as we found in Correll, even the appellant must not have
believed that the redacted portions of the statements were of great
significance because she did not seek to introduce them in her
case-in-chief even though the trial judge specifically stated that she
could do so and even though she produced a number of
witnesses. |
| [36] | In her fifth claim, the appellant maintains that the trial judge
improperly denied her motion to discharge counsel and various other
motions connected to that request. Appellant was represented by two
attorneys, John Wilkins and John Howes. Both of these attorneys also
represented Jason. The record reflects that both the trial judge and the
State were concerned with the conflict of interest that might occur as a
result of this dual representation. As a result, the trial judge
extensively advised and questioned appellant about the potential for
conflict in this dual representation, after which the trial judge made a
specific finding that appellant knowingly and intelligently waived the
right to raise any apparent or possible conflicts. |
| [37] | After the jury recommended a sentence of death but before the trial
judge imposed sentence, appellant filed a pro se motion for a new trial
alleging that the trial judge erred in accepting her waiver of
conflict-free counsel. She also raised a number of substantive issues
regarding alleged errors at trial and ineffective assistance of counsel.
Thereafter, the judge conducted a hearing on the motion in which he
questioned both appellant and her counsel. At the hearing, appellant
requested a continuance asserting that she needed to bring in F. Lee
Bailey and others to support her motion. The trial judge denied the motion
for continuance, ruling that appellant had to state the grounds to support
the motion at the instant hearing. Appellant stated she would rely on her
motion. The judge then denied the motion to discharge, finding there had
been no showing of ineffective assistance or conflict that would warrant
discharging appellant's counsel. He offered appellant the opportunity to
represent herself, which she declined. Thereafter, Wilkins asked to be
discharged, which request the trial judge also denied. |
| [38] | An actual conflict of interest that adversely affects counsel's
performance violates the Sixth Amendment of the United States
Constitution. Barclay v. Wainwright, 444 So.2d 956
(Fla. 1984). Nevertheless, a defendant's fundamental right to
conflict-free counsel can be waived. United States v. Rodriguez, 982 F. 2d
474 (11th Cir.), cert. denied, 114 S. Ct. 275, 126 L. Ed. 2d 226 (1993);
Woseley v. State, 590 So.2d 979 (Fla. 1st DCA 1991).
For a waiver to be valid, the record must show that the defendant was
aware of the conflict of interest, that the defendant realized the
conflict could affect the defense, and that the defendant knew of the
right to obtain other counsel. Id. at 477. It is the trial court's duty to
ensure that a defendant fully understands the adverse consequences a
conflict may impose. Winokur v. State, 605 So.2d 100
(Fla. 4th DCA 1992), review denied, 617 So.2d 322
(Fla. 1993). |
| [39] | In this case, the trial judge specifically advised appellant of the
possible conflict of interest that could arise from the dual
representation. He then extensively questioned her to determine whether
she understood the potential for conflict and her right to obtain other
counsel. Clearly, on this record the trial judge met the burden of
assuring that appellant's waiver was made voluntarily, knowingly, and
intelligently. Once the jury recommended death, however, appellant chose
to revoke this waiver and wanted new counsel. At that point in the
proceedings, the trial judge found that no conflict of interest or other
basis existed to warrant removal of counsel. Under these circumstances, we
find that the trial judge properly denied the motions to discharge
counsel. First, appellant has failed to show how she was prejudiced by the
continued representation. See, e.g., Roberts v. State, 573 So.2d
964 (Fla. 2d DCA 1991) (once defendant voluntarily chooses to
proceed with dual representation, defendant must show prejudice in the
form of actual conflict to succeed in a subsequent claim for ineffective
assistance of counsel); Morgan v. State, 550 So.2d 151 (Fla. 3d DCA 1989). Second, appellant had no right to have
different counsel appointed after the trial judge found no existing
conflict of interest. Hardwick v. State, 521 So.2d 1071 (Fla.)(no constitutional right exists to obtain different
court appointed counsel), cert. denied, 488 U.S. 871, 109 S. Ct. 185, 102
L. Ed. 2d 154 (1988). Additionally, the trial judge conducted a proper
Nelson inquiry in the face of appellant's assertions of ineffective
assistance of counsel by allowing appellant to state her reasons for her
claims on the record, by questioning counsel regarding those assertions,
and by specifically finding that the claims were meritless and that
counsel was competent as to those assertions. Hardwick ; Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973). Consequently, we
find this claim to be without merit. |
| [40] | Sixth, appellant claims that the trial judge erred in failing to grant
her motion for new trial, which was based on allegations that the jury had
been contaminated by extra-judicial information. After the jury convicted
the appellant (but before the penalty phase proceeding began), a female,
who was unconnected to this case, approached three jurors in the
courthouse parking lot and threatened to blow up a juror's car. After the
incident was reported to the trial judge, he questioned the jurors
individually in the presence of counsel for the State and the appellant to
determine whether the jurors were prejudiced by the incident. After
ascertaining the facts, the trial judge asked the jurors whether they
thought that the appellant was in any way responsible for the incident.
Each of the jurors responded in the negative. The judge also asked the
jurors whether the incident affected their ability to serve as impartial
jurors, to which they also responded in the negative. The appellant moved
for a new guilt phase based on contamination of the jury and moved for a
mistrial of the penalty phase on the same grounds. The trial judge denied
the motions, finding that this incident did not prejudice or taint the
jury and that the jurors could remain impartial. |
| [41] | The incident occurred after the completion of the guilt phase.
Consequently, it in no way affected the jury's verdict as to appellant's
conviction. As to the penalty phase, the judge determined, after inquiry,
that the incident did not prejudice the jury in any way and that the
jurors could remain impartial. Because this incident occurred after the
conviction phase but before the penalty phase, the test for determining
whether a new jury for the penalty phase was warranted is somewhat
comparable to those cases involving pretrial publicity wherein a
determination must be made as to whether a juror can be fair and impartial
despite the pretrial publicity. Cf. Provenzano v. State, 497
So.2d 1177 (Fla. 1986)(test for determining prejudice from
pretrial publicity is whether publicity caused any accompanying prejudice,
bias, or preconceived opinions about case), cert. denied, 481 U.S. 1024,
107 S. Ct. 1912, 95 L. Ed. 2d 518 (1987). Nonetheless, because the
conviction and penalty phase proceedings of a death penalty case are so
intertwined,*fn3
the problem presented is more akin to those cases involving juror
contamination or misconduct during the course of the proceedings. While it
is appropriate to inquire into the thought processes of a juror in the
first instance, it is inappropriate to do so in the latter. See, e.g.,
State v. Hamilton, 574 So.2d 124 (Fla.
1991)(inappropriate for judge to inquire into jurors' thought processes as
to whether presence of materials in jury room was prejudicial). Under the
unique circumstances of this case, however, we find that the trial judge
properly determined that the jury had not been tainted by the incident
even if the trial judge improperly inquired as to whether the jurors were
prejudiced by this incident. The jurors saw no nexus between the defendant
and the threat, and the incident did not expose them to any non-record
information that was prejudicial. Consequently, we find that no reasonable
possibility exists that the incident affected the jury's verdict. McKinney
v. State, 579 So.2d 80 (Fla. 1991) (prejudice exists
where there is a reasonable possibility that the contact affected the
jury's verdict). |
| [42] | In a similar claim, appellant asserts that she is entitled to a new
trial based on juror misconduct. After the completion of the penalty
phase, one of the jurors (Juror Kelley) participated in an
interview with a writer in which she alleged that numerous improprieties
occurred during the trial.*fn4
Based on these allegations of juror misconduct, the appellant moved for a
new trial. The trial judge then interviewed Juror Kelley, as
well as all of the other jurors. After conducting the interviews, the
trial judge denied the motion. In an extremely detailed, well-reasoned
order, the trial judge found that Juror Kelley's testimony
was internally inconsistent, was unreliable, conflicted with the testimony
of the other eleven jurors, was based on speculation and confusion, and
exhibited bias and partiality. We find that the trial judge properly
denied the motion after finding that Juror Kelley's
allegations were without merit.*fn5 |
| [43] | In her next claim, appellant asserts that the trial judge erred in
admitting bullets appellant found at her residence and turned over to
police. Appellant contends the bullets were irrelevant and prejudicial.
The record shows that appellant told the police she dug the bullets out of
a fence at her home after she reported a drive-by shooting at her home.
The State introduced the bullets to show that the appellant attempted to
misdirect the police investigation away from her. At trial, a firearms
expert testified that the bullets had never been fired. We find that the
trial judge properly admitted the bullets as "after the fact evidence" of
a desire to evade prosecution, which was relevant to the issue of guilt.
Anderson v. State, 574 So.2d 87 (Fla.)(consciousness
of guilt could be inferred from defendant's after-the-fact statements,
and, thus, was relevant to the material issue of guilt), cert. denied, 502
U.S. 834, 112 S. Ct. 114, 116 L. Ed. 2d 83 (1991); Straight v. State, 397 So.2d 903 (Fla.)(after-the-fact evidence of a
desire to evade prosecution is relevant to the consciousness of guilt,
which may be inferred from such conduct), cert. denied, 454 U.S. 1022, 102
S. Ct. 556, 70 L. Ed. 2d 418 (1981). |
| [44] | Appellant also argues that the trial judge improperly denied her
motion to dismiss the indictment, which was based on the claim that the
State illegally intercepted a conversation she had with Jason in a holding
cell. Because appellant had invoked her constitutional right to silence
and was represented by counsel before the recording took place, she
contends that the police acted wrongfully in recording the conversation,
which, in turn, warrants dismissal of the charges against her. Appellant
acknowledges that a person loses much of the right to an expectation of
privacy during incarceration. See, e.g., Hudson v. Palmer, 468 U.S. 517,
528, 104 S. Ct. 3194, 3201, 82 L. Ed. 2d 393 (1984)(Fourth Amendment
proscription against unreasonable searches does not apply within the
confines of the prison cell); |
| [45] | State v. McAdams, 559 So.2d 601 (Fla. 5th DCA
1990)(recording of conversation between two defendants in police car after
defendants had invoked constitutional rights not illegal). Appellant
argues, however, that this case is distinguishable from those cases
because here the State fostered the illusion of privacy in placing her and
Jason in the cell together. See State v. Calhoun, 479 So.2d 241 (Fla. 4th DCA 1985)(fostering illusion of privacy when
placing two individuals in holding cell after invocation of constitutional
rights warranted suppression of recorded statements). Accordingly,
appellant argues that the charges should be dismissed. We do not agree
that the State acted wrongfully in recording the conversation between the
appellant and Jason. Unlike the situation in Calhoun, appellant did not
ask to speak to her son privately; they were simply placed in a cell
together before a hearing. Further, even were we to find that misconduct
occurred, we would still find that the trial judge properly denied the
motion. Under the circumstances of this case, the proper remedy for such
misconduct would have been for the trial judge to suppress the evidence
obtained as a result of the misconduct rather than to dismiss the
indictment.*fn6
In this case, both parties acknowledge that the recording of the
conversation was worthless. Consequently, there was nothing to
suppress. |
| [46] | In a similar issue, appellant contends that the trial judge
erroneously excluded the testimony of an investigator who was involved in
the recording of this conversation. Defense counsel attempted to call the
investigator to establish that the police would go to great lengths to
prove appellant's guilt. The trial judge disallowed the questioning of the
investigator regarding the "bugging" of appellant's cell, finding the
testimony to be irrelevant and prejudicial. We find that the trial judge
did not abuse his discretion in excluding this testimony. |
| [47] | In her tenth claim, appellant alleges that the trial judge erroneously
denied her motion for change of venue, which she filed because of
prejudicial pretrial publicity. The record indicates that appellant filed
a motion for change of venue, that the trial judge took the motion under
advisement, and that the trial judge denied the motion after a jury was
selected. After reviewing the record of the voir dire examination, we find
that the trial judge properly denied the motion. Although many of the
prospective jurors had read or heard media reports about the murder, the
extensive questioning of those jurors by the trial judge and by the
attorneys for both sides reflects that the jurors' knowledge of the
incident was not such that it caused them to form any prejudicial,
preconceived opinions about the case. Pietri v. State, 644 So.2d 1347
(Fla. 1994), cert. denied, 115 S. Ct. 2588, 132 L. Ed. 2d 836 (1995);
Provenzano (pretrial publicity is expected in certain cases, and, standing
alone, does not necessitate a change of venue; the critical factor is the
extent of the prejudice or lack of impartiality among potential jurors
that may accompany the knowledge of the incident). |
| [48] | In her next claim, appellant argues that the trial judge improperly
denied her motion for judgment for acquittal because the evidence is
legally insufficient to support the guilty verdict. According to
appellant, the evidence is almost entirely circumstantial and failed to
preclude the reasonable possibility that the appellant was not involved in
any way with her husband's murder. We find this claim to be totally
without merit. The evidence introduced at trial reflected that the
appellant planned and directed the murder, identified Jason as the gunman,
and directed the disposal of the murder weapon. |
| [49] | In her final guilt phase claim, appellant argues that the trial judge
improperly admitted a number of Jason's hearsay statements. The trial
judge admitted the statements under section
90.803(18)(e), the co-conspirator hearsay exception.
According to appellant, the trial judge erred in admitting these
statements because the State failed to establish, using evidence
independent of the hearsay statements, that a conspiracy existed between
Jason and the appellant. We find this claim to be without merit. The facts
presented at trial established, independent of Jason's statements, that
appellant's calculated plan to murder the victim involved the
conspiratorial association of Jason. |
| [50] | PENALTY PHASE |
| [51] | We turn now to the issues regarding the penalty phase proceeding. In
her first claim, appellant contends that the trial judge erroneously found
that the murder was both cold, calculated, and premeditated (CCP) and
committed for financial gain. Appellant asserts that these two aggravating
circumstances are duplicative because both are based on the fact that the
appellant had her husband murdered in furtherance of her plan to receive
life insurance proceeds. In making this argument, the appellant concedes
that this Court has previously rejected a similar argument in other cases.
See Fotopoulous v. State, 608 So.2d 784 (Fla. 1992),
cert denied, 113 S. Ct. 2377, 124 L. Ed. 2d 282 (1993); Echols v. State, 484 So.2d 568 (Fla. 1985), cert. denied, 479 U.S.
871, 107 S. Ct. 241, 93 L. Ed. 2d 166 (1986). She argues, however, that
those cases were wrongly decided. We disagree. As we stated in those
cases, the facts in a given case may support multiple aggravating factors
provided the factors are not based on the same essential feature of the
crime. In this case, the aggravating circumstance of committed for
financial gain was based on the evidence that appellant killed her husband
to collect life insurance; the factor of CCP was based on evidence that
she meticulously staged her husband's murder to look as though it were
committed during a robbery. Under these circumstances, we do not find that
the trial judge improperly duplicated these two aggravating
factors. |
| [52] | Nor do we find the death penalty in this case to constitute a
disproportionate sentence even though two of the State's key witnesses
were apparently not prosecuted despite their involvement in this crime and
even though Jason was acquitted. When a co-defendant (or coconspirator) is
equally as culpable or more culpable than the defendant, disparate
treatment of the co-defendant may render the defendant's punishment
disproportionate. Downs v. State, 572 So.2d 895 (Fla.
1990), cert. denied, 502 U.S. 829, 112 S. Ct. 101, 116 L. Ed. 2d 72
(1991); Slater v. State, 316 So.2d 539 (Fla. 1975).
Thus, an equally or more culpable co-defendant's sentence is relevant to a
proportionality analysis. Cardona v. State, 641 So.2d 361 (Fla. 1994),
cert. denied, 115 S. Ct. 1122, 130 L. Ed. 2d 1085 (1995). Disparate
treatment of a co-defendant, however, is justified when the defendant is
the more culpable participant in the crime. Hayes v. State, 581
So.2d 121 (Fla.), cert. denied, 502 U.S. 972, 112 S. Ct. 450,
116 L. Ed. 2d 468 (1991). |
| [53] | In this case, the trial judge specifically examined the appellant's
culpability, stating: |
| [54] | The evidence established beyond a reasonable doubt that, although [the
appellant] was not the triggerman, she was present for the murder actively
participating in carrying out the murder which she planned in a cold and
calculated manner. Her participation was not relatively minor. Rather she
instigated and was the mastermind of and was the dominant force behind the
planning and execution of this murder and behind the involvement and
actions of the co-participants before and after the murder. Her primary
motive for the murder was financial gain, which motive was in her full
control. |
| [55] | As indicated by the trial judge, we find that the evidence establishes
beyond question that the appellant was the dominating force behind this
murder and that she was far more culpable than the State's two key
witnesses. Additionally, the evidence supports the judge's conclusion that
the aggravating factors outweigh the mitigating factors. Consequently, we
find that the appellant's sentence is not disproportionate. See, e.g.,
Garcia v. State, 492 So.2d 360 (Fla.)(prosecutorial
discretion in plea bargaining with less culpable accomplices is not
impermissible and does not violate the principles of proportionality),
cert. denied, 479 U.S. 1022, 107 S. Ct. 680, 93 L. Ed. 2d 730 (1986). In
making this determination, we note that Jason's acquittal is irrelevant to
this proportionality review because, as a matter of law, he was exonerated
of any culpability.*fn7 |
| [56] | In her final claim, the appellant raises a number of issues regarding
the constitutionality of Florida's death penalty scheme.*fn8
Most of the arguments raised under this claim have not been preserved for
review. Further, almost all of the arguments have been previously
rejected. We find that only one of appellant's arguments under this issue
merits discussion; that is her claim that the aggravating circumstance of
CCP is unconstitutionally vague. In this case, the trial judge provided
the jury with the standard jury instruction on CCP. We have since
determined that the standard instruction given in this case is, in fact,
unconstitutionally vague. See Jackson v. State, 648 So.2d 85 (Fla. 1994).
We also stated in Jackson, however, that a claim that the CCP aggravating
circumstance is unconstitution-ally vague is procedurally barred unless a
specific objection is made at trial. A review of the record reflects that
defense counsel failed to properly preserve this issue for appeal;
consequently, this issue is procedurally barred. Moreover, even were we to
find this issue properly preserved, we conclude that the giving of this
instruction was harmless error because the facts of this murder as set
forth earlier in this opinion establish that this murder was CCP under any
definition. Foster v. State, 654 So.2d 112 (Fla.), cert. denied, 116 S.
Ct. 314, 133 L. Ed. 2d 217 (1995). |
| [57] | Accordingly, for the reasons expressed, we affirm Virginia Gail
Larzelere's conviction for first-degree murder and sentence of
death. |
| [58] | It is so ordered. |
| [59] | GRIMES, C.J., and OVERTON, SHAW, KOGAN, HARDING, WELLS and ANSTEAD,
JJ., concur. |
| [60] | Disposition |
| [61] | Accordingly, for the reasons expressed, we affirm Virginia Gail
Larzelere's conviction for first-degree murder and sentence of
death. |
|
| |
| Opinion Footnotes | |
|
| |
| [62] | *fn1
Jason Larzelere was adopted by the victim after he and the appellant were
married. |
| [63] | *fn2
It was established that the witnesses' signatures on the will were
fraudulent. |
| [64] | *fn3
In this case, for example, neither side presented any evidence in the
penalty phase proceeding, relying instead on the evidence presented in the
conviction phase proceeding. |
| [65] | *fn4
She asserted that jurors discussed evidence before deliberations; that
several jurors concluded the appellant was guilty during the first week of
the four week trial; that one juror revealed information regarding Jason
and a plea bargain; that several jurors perjured themselves about the
parking lot incident; that, contrary to court order, several jurors read
media accounts of the case; and that she herself was misled and pressured
into finding the appellant guilty. |
| [66] | *fn5
Appellant also contends that the trial judge erroneously inquired into the
thought processes of the jurors in questioning them about Juror
Kelley's assertions. The record reflects that the judge
properly questioned the jurors in an objective manner, asking questions
only about any overt acts that might have prejudicially affected the
jurors in reaching their own verdict. |
| [67] | *fn6
Contrary to appellant's assertions, the conduct at issue was not so
egregious as to warrant dismissal due to a violation of Florida's due
process clause. Cf. State v. Williams, 623 So.2d 462
(Fla. 1993)(law enforcement personnel's manufacturing of crack cocaine for
use in sting operation was so egregious as to warrant dismissal of
charges). |
| [68] | *fn7
On this record, we are unable to determine what evidence was presented
against Jason in his trial; however, it is obvious that some of the
evidence that was admissible against the appellant would have been
inadmissible against Jason. |
| [69] | *fn8
Appellant claims that: the CCP instruction is vague and arbitrarily
applied; the death penalty statute is unconstitutional because it
authorizes a death recommendation on the basis of a bare majority vote;
the lack of a unanimous verdict as to any aggravating circumstance is
unconstitutional; the jury is told its role is only advisory; the
sentencing judge was selected by a racially discriminatory system; the
statute unconstitutionally prevents the evenhanded application for
appellate review; a number of the aggravating circumstances are
unconstitutional because they do not rationally narrow the class of
death-eligible persons; the use of the contemporaneous objection rule
prevents the consistent application of the death penalty; special verdict
forms should be provided; the criminal rules unconstitutionally forbid the
mitigation of a death sentence; the death penalty is presumed where a
single aggravating circumstance is found; juries are not allowed to
consider sympathy; and electrocution is cruel and unusual
punishment. |