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12/30/86 WAYNE TOMPKINS, v. STATE OF FLORIDA,
[Editor's note: footnotes (if any) trail the opinion]
[1] SUPREME COURT OF FLORIDA
[2] WAYNE TOMPKINS, Appellant
v.
[3] STATE OF FLORIDA, Appellee
[4] No. 67,974
[5] 502 So. 2d 415, 12 Fla. Law W. 44
[6] December 30, 1986
[7] An Appeal from the Circuit Court in and for Hillsborough County, Harry
Lee Coe, III, Judge, No. 84-10538 A.
[8] Rehearing Denied March 9, 1987
BLUE BOOK CITATION FORM: 1986.FL.2899 (http://www.versuslaw.com)
[9] APPELLATE PANEL:
[10] Barkett, J., McDonald, C.J., and Adkins, Boyd, Overton, Ehrlich and
Shaw, JJ., concur.
[11] DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARKETT
[12] Wayne Tompkins appeals his conviction for first-degree murder and the
sentence of death imposed by the trial judge in accordance with the jury's
recommendation. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We
affirm both the conviction and sentence.
[13] The victim, Lisa DeCarr, aged 15, disappeared from her home in Tampa on
March 24, 1983. In June 1984, the victim's skeletal remains were found in a
shallow grave under the house along with her pink bathrobe and jewelry.
Based upon a ligature (apparently the sash of her bathrobe) that was found
tied tightly around her neck bones, the medical examiner determined that
Lisa had been strangled to death. In September 1984, Wayne Tompkins, the
victim's mother's boyfriend, was charged with the murder.
[14] At trial, the state's three key witnesses testified as follows. Barbara
DeCarr, the victim's mother, testified that she left the house on the
morning of March 24, 1983, at approximately 9 a.m., leaving Lisa alone in
the house. Lisa was dressed in her pink bathrobe. Barbara met Wayne Tompkins
at his mother's house a few blocks away. Some time that morning, she sent
Tompkins back to her house to get some newspapers for packing. When Tompkins
returned, he told Barbara that Lisa was watching television in her robe.
Tompkins then left his mother's house again, and Barbara did not see or
speak to him again until approximately 3 o'clock that afternoon. At that
time, Tompkins told Barbara that Lisa had run away. He said the last time he
saw Lisa, she was going to the store and was wearing jeans and a blouse.
Barbara returned to the Osborne Street house where she found Lisa's
pocketbook and robe missing but not the clothes described by Tompkins.
Barbara then called the police.
[15] The state's next witness, Kathy Stevens, a close friend of the victim,
testified that she had gone to Lisa DeCarr's house at approximately 9 a.m.
on the morning of March 24, 1983. After hearing a loud crash, Stevens opened
the front door and saw Lisa on the couch struggling and hitting Tompkins who
was on top of her attempting to remove her clothing. Lisa asked her to call
the police. At that point, Stevens left the house but did not call the
police. When Stevens returned later to retrieve her purse, Tompkins answered
the door and told here that Lisa had left with her mother. Stevens also
testified that Tompkins had made sexual advances towards Lisa on two prior
occasions.
[16] Kenneth Turco, the final key state's witness, testified that Tompkins
confided details of the murder to him while they were cellmates in June
1985. Turco testified that Tompkins told him that Lisa was on the sofa when
he returned to the house to get some newspapers for packing. When Tompkins
tried to force himself on her, Lisa kicked him in the groin. Tompkins then
strangled her and buried her under the house along with her pocketbook and
some clothing (jeans and a top) to make it appear as if she had run away.
[17] After the state rested its case, the trial court denied Tompkins'
motion for acquittal, finding that the evidence was sufficient to prove
premeditation and that the state had established a prima facie case. The
defense rested after the close of the state's case without presenting any
additional evidence. The jury found Tompkins guilty as charged.
[18] At the penalty phase, the state presented evidence from three witnesses
to show that Tompkins had been convicted of kidnapping and rape stemming
from two separate incidents in Pasco County which occurred after Lisa
DeCarr's disappearance. The defense presented testimony from three witnesses
regarding Tompkins' good work record, shy and nonviolent personality, and
honesty.
[19] The trial judge, finding three aggravating circumstances (previous
conviction of felonies involving the use or threat of violence to the
person;*fn1 murder committed while the defendant was engaged in an attempt
to commit sexual battery;*fn2 murder was especially heinous, atrocious, or
cruel)*fn3 and one statutory mitigating circumstance (defendant's age at the
time of the crime),4 followed the jury's recommendation and sentenced
Tompkins to death.
[20] Appellant challenges his conviction on four grounds. First, appellant
argues that the admission of his confession through Turco's testimony was
error because the state had not proven the corpus delicti of the crime by
independent evidence.5 State v. Allen, 335 So.2d 823 (Fla. 1976). We find no
merit in this contention. We first note that appellant never objected to the
introduction of the confession at trial. However, assuming arguendo that
appellant's motion for judgment of acquittal at the close of the state's
case preserved the issue, we find no trial court error. The medical
examiner's testimony that, within a reasonable degree of medical certainty,
death was caused by strangulation, coupled with the location of the victim's
remains in a grave underneath the victim's residence, is more than
sufficient to meet the "substantial evidence" standard required under Allen.
See id. at 824.
[21] Appellant next argues that the trial court violated his sixth amendment
right to confront witnesses by limiting his cross-examination of state's
witnesses Barbara DeCarr and Detective K.E. Burke. Appellant contends that
curtailment of his right to cross-examine these witnesses prevented him from
establishing his defense, i.e., that Lisa DeCarr did in fact run away and
met her death sometime after March 24, 1983. We find no violation of
appellant's sixth amendment rights. Although wide latitude is permitted on
cross-examination in a criminal trial, its scope and limitation lies within
the sound discretion of the trial court and is not subject to review except
for a clear abuse of discretion. Sireci v. State, 339 So.2d 964, 969-70
(Fla. 1981), cert. denied, 456 U.S. 984, 72 L. Ed. 2d 862, 102 S. Ct. 2257
(1982). The trial court found that each of the questions to which the state
objected was irrelevant or called for hearsay testimony. After careful
review of the record, we find no abuse of discretion.
[22] In his third point, appellant argues that the trial court erred in
permitting the state to elicit certain testimony from Barbara DeCarr on
redirect examination. The record reveals that on cross-examination of
DeCarr, defense counsel asked DeCarr to confirm that Lisa had never
complained to her mother about Tompkins making any type of sexual advances.
DeCarr replied, "She never." On redirect, the prosecutor asked whether Lisa
had voiced any complaint to DeCarr about Tompkins in February 1983. Finding
that defense counsel had opened the door to this line of questioning, the
trial court permitted DeCarr to testify that Lisa had begged her not to go
back with Tompkins. Appellant contends that the defense did not open the
door because his question on cross-examination was limited to complaints
about sexual advances. We cannot agree. Generally, testimony is admissible
on redirect which tends to qualify, explain, or limit cross-examination
testimony. Tampa Electric Co. v. Charles, 69 Fla. 27, 67 So. 572 (1915);
Hinton v. State, 347 So.2d 1079, 1080 (Fla. 3d DCA), cert. denied, 354 So.2d
981 (Fla. 1977). Moreover, defense counsel's question on cross-examination
could have led the jury to infer that Lisa had never complained to her
mother about Tompkins. We find that the state was properly allowed to pursue
this line of questioning to rebut such an inference. Cf. McCrae v. State,
395 So.2d 1145, 1151-52 (Fla. 1980) (state properly entitled to transcend
normal bounds of cross-examination in order to negate delusive innuendos of
defense counsel), cert. denied, 454 U.S. 1041, 70 L. Ed. 2d 486, 102 S. Ct.
583 (1981).
[23] Appellant next argues that death-qualified juries are unconstitutional.
This argument has been rejected by this Court, Kennedy v. Wainwright, 483
So.2d 424 (Fla.), cert. denied, 479 U.S. 890, 107 S. Ct. 291, 93 L. Ed. 2d
265 (Oct. 14, 1986), and by the United States Supreme Court in Lockhart v.
McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986).
[24] We turn now to appellant's six claims of error in the penalty phase of
the proceeding. First, appellant argues that the trial court erred in
allowing two police officers to testify as to details of previous crimes he
had committed. Appellant acknowledges that details of prior felonies
involving the use or threat of violence to the person are properly admitted
in the penalty phase of a capital trial and that hearsay testimony is
admissible provided the defendant has a fair opportunity to rebut it. §
921.141(1), Fla. Stat. (1985); Perri v. State, 441 So.2d 606, 608 (Fla.
1983). He contends, however, that he had no opportunity to rebut or confront
the officers' testimony in this case, and that his death sentence must
therefore be reversed. We disagree.
[25] We note, first of all, that appellant did not argue at trial, as he
does here, that he was denied the opportunity to confront witnesses
testifying against him. The record shows that Detective Gell identified
Tompkins as the person he had arrested for a kidnapping and rape in Pasco
County. When defense counsel objected to "any hearsay testimony" regarding
the prior offenses, the trial court sustained the objection, in part, and
limited the officer to saying that the victim of that crime was a white
female convenience store clerk and that she had identified Tompkins in a
lineup. The trial court stated that it would permit the lineup testimony
because the officer was present at the lineup. The trial court similarly
limited the other officer's testimony to the statement that Tompkins had
pleaded guilty to another kidnapping and rape of a convenience store clerk.
[26] Although appellant did not argue a constitutional error at trial, we
recognize that the admission of hearsay in criminal proceedings may
constitute a violation of the accused's sixth amendment right to confront
witnesses testifying against him. See Engle v. State, 438 So.2d 803 (Fla.
1983), cert. denied, 465 U.S. 1074, 79 L. Ed. 2d 753, 104 S. Ct. 1430
(1984). We also recognize that the right of confrontation protected by
cross-examination is a right that has been applied to the sentencing
process. Engle, 438 So.2d at 813 (citing Specht v. Patterson, 386 U.S. 605,
18 L. Ed. 2d 326, 87 S. Ct. 1209 (1967)). However, even if we assume that
the victims of the prior offenses were unavailable for appellant to
confront, the officers' testimony was clearly harmless under the facts of
this case. The state introduced certified copies of appellant's prior
convictions, establishing two separate instances of kidnapping and sexual
battery. The certified copies disclosed that appellant had pleaded guilty to
the kidnap and rape charges filed in the other incident. this evidence alone
is sufficient to establish the aggravating circumstance under section
921.141(5)(b), Florida Statutes (1985) (prior convictions for felonies
involving use or threat of violence to the person). We find no prejudice to
Tompkins resulting from the officers' testimony.
[27] Appellant next asserts that the trial court's finding of an aggravating
circumstance under section 921.141(5)(b) was improperly based on hearsay
evidence, and that the trial judge gave this aggravating circumstance undue
weight. We have already found that the certified copies of judgment and
sentence established this aggravating circumstance beyond a reasonable
doubt. We also find meritless appellant's claim of error as to the weight
given this aggravating circumstance. One the trial court has found which, if
any, aggravating circumstances apply, it must then decide the weight to be
given particular mitigating circumstances, if any, and whether they offset
the established aggravating circumstances. Herring v. State, 446 So.2d 1049,
1057 (Fla.), cert. denied, 469 U.S. 989, 105 S. Ct. 396, 83 L. Ed. 2d 330
(1984). The trial court properly found this aggravating circumstance and we
find no indication that this factor was improperly doubled or otherwise
given undue weight.
[28] In his third point, appellant contends that the trial court erroneously
found the aggravating circumstance that this murder was committed during an
attempted rape. Appellant argues that the trial court's use of the word
"rape" rather than "sexual battery" invalidates its finding of this
aggravating circumstance. This argument is meritless. Adams v. State, 412
So.2d 850, 856 (Fla.) (act itself, rather than its nomenclature, constitutes
the aggravating circumstance), cert. denied, 459 U.S. 882, 74 L. Ed. 2d 148,
103 S. Ct. 182 (1982). Appellant also contends that if we discount his
confession to Turco the evidence is insufficient to establish an attempted
sexual battery. Having already concluded that the confession was properly
admitted, this argument must be rejected. Moreover, appellant's confession
that the victim was strangled after she refused his sexual advances is
consistent with the testimony of Kathy Stevens that appellant was attempting
to remove the victim's clothes as she struggled to fight him off. We find
the evidence sufficient to establish this aggravating circumstance.
[29] Appellant's next point is that the trial court incorrectly found that
the murder was especially heinous, atrocious, or cruel. We have already
determined that there was sufficient evidence upon which to conclude that
the victim's death was caused by strangulation. We have previously held that
it is permissible to infer that strangulation, when perpetrated upon a
conscious victim, involves foreknowledge of death, extreme anxiety and fear,
and that this method of killing is one to which the factor of heinousness is
applicable. Johnson v. State, 465 So.2d 499, 507 (Fla.), cert. denied, 474
U.S. 865, 106 S. Ct. 186, 88 L. Ed. 2d 155 (1985); Adams, 412 So.2d at 857;
Alvord v. State, 322 So.2d 533, 541 (Fla. 1975), cert. denied, 428 U.S. 923,
49 L. Ed. 2d 1226, 96 S. Ct. 3234 (1976). The medical examiner testified
that death by strangulation is not instantaneous. Furthermore, there is
sufficient competent evidence in the record to support a finding that the
victim was not only conscious but struggling and fighting to get away when
appellant strangled her. Death under these circumstances is heinous,
atrocious, and cruel. See Adams, 412 So.2d at 857; Smith v. State, 407 So.2d
894, 903 (Fla. 1981), cert. denied, 456 U.S. 984, 72 L. Ed. 2d 864, 102 S.
Ct. 2260 (1982). The trial court did not err in finding this aggravating
circumstance.
[30] Appellant next contends that the trial court did not give adequate
consideration to the evidence of non-statutory mitigating circumstances.
With respect to non-statutory mitigating circumstances, the trial court
stated that it found "NONE, notwithstanding testimony to the effect that the
defendant was a good family member and good employee." We conclude that the
judge did consider the evidence but found that it did not rise to a
sufficient level to be weighed as a mitigating circumstance. See Woods v.
State, 490 So.2d 24 (Fla. 1986).
[31] Appellant's final claim of error is that the trial judge did not make a
reasoned independent judgment of whether or not the death penalty should be
imposed. Appellant bases this argument on the trial judge's written order
stating that the jury's death recommendation is "entitled to great weight."
We reject this claim. The trial court expressly stated: "After considering
only the evidence before the jury, the court finds that the aforesaid
statutory aggravating circumstances clearly outweigh the statutory
mitigating circumstance." There is nothing in the court's order or elsewhere
in the record to suggest that the trial court imposed the death penalty
because it felt compelled to do so by the jury's recommendation. Cf. Ross v.
State, 386 So.2d 1191 (Fla. 1980) (remand for resentencing required where
trial court expressly stated it found no compelling reason to override
jury's recommendation).
[32] Finding no reversible error in either the guilt or penalty phases of
appellant's trial, we affirm both the conviction and sentence imposed.
[33] It is so ordered.
[34] McDONALD, C.J., and ADKINS, BOYD, OVERTON, EHRLICH and SHAW, JJ.,
Concur.
***** BEGIN FOOTNOTE(S) HERE *****
[35] *fn1 § 921.141(5)(b), Fla. Stat. (1985).
[36] *fn2 § 921.141(5)(d), Fla. Stat. (1985).
[37] *fn3 § 921.141(5)(h), Fla. Stat. (1985).
[38] *fn4 § 921.141(6)(g), Fla. Stat. (1985).
[39] *fn5 Appellant notes that Tompkins' confession may have been obtained
by Turco acting as a state agent, in violation of the privilege against
self-incrimination or right to counsel under United States v. Henry, 447
U.S. 264, 65 L. Ed. 2d 115, 100 S. Ct. 2183 (1980), but concedes that this
issue was not preserved for review on direct appeal.
***** END FOOTNOTE(S) HERE *****
[Editor's note: Illustrations from the original opinion, if any, are
available in the print version]
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19861230
1986.FL.2899