Lebron v. State (799 So. 2d 997, 2001)

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Jermaine Lebrón for the 1995 murder of Larry Neal Oliver. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For reasons which follow, we affirm Lebron’s convictions, but vacate his sentence of death, and remand for a new penalty phase proceeding.

I. FACTS

Guilt Phase Proceedings

Appellant, Jermaine Lebrón (“Lebrón”) was arrested in New York City for the murder of Larry Neal Oliver. During the first trial concerning the charge, Lebrón was represented by Mr. Slovis (a New York attorney, appearing pro hac vice on Lebron’s behalf) and Mr. Norgard (a Florida lawyer, also representing Lebrón on appeal). This first trial resulted in a mistrial, based upon the trial court’s finding of a jury deadlock.

At the beginning of Lebron’s retrial, Norgard was involved in another capital case, and, therefore, the pretrial and guilt phase proceedings were conducted with only Slovis appearing on Lebron’s behalf. During this second trial, it was established that Lebrón was a major participant in the robbery and murder of the victim (who worked with one of Lebron’s acquaintances, Danny Summers). Indeed, all of the eyewitnesses testified that it was Le-brón (nicknamed “Bugsy”) who had directed the events both before and after the victim’s death, and who, using a sawed-off shotgun (which he called “Betsy”), had fatally shot the victim.

According to eyewitnesses, the victim had been lured to a house in Osceola County (the “Gardenia house”) where Le-brón and several others were staying after Lebrón offered to sell the victim some “spinners” for his truck. Shortly after the victim arrived at the home, Lebrón called to him to come toward the back bedrooms. As the victim entered the hallway leading to the bedrooms, he was forced to lie face down, and was shot at short range in the back of the head. Eyewitnesses testified that, after the victim was shot, Lebrón was smiling and laughing, yelling, “I did it. I did it,” and describing how it felt to kill the victim, and what it looked like. Money, checks, and a credit card were taken from the victim, and stereo equipment was stripped from his truck. Lebrón directed others present at the time to burn the victim’s identification papers, to dispose of the victim’s body, and to clean up the area where the victim had been shot.

Over the next several days, Lebrón and some of the others used the victim’s credit card, pawned his stereo equipment, and cashed his checks. An attempt was also made to burn the victim’s truck. During this time, Lebrón admitted to his former girlfriend, Danita Sullivan, that he had shot a man, that “he had killed someone.” He also told his current girlfriend, Christina Charbonier, that he had killed a man for his truck. Shortly thereafter, Le-brón left for New York City, the place where “Legz Diamond,” a topless juice bar owned by his mother, was located.

The victim’s body was later discovered in a rural area near the Walt Disney World property. Although the body was covered with a blanket and some shrubs, it was still visible from the road.

The medical examiner, Dr. Julia Martin, performed the autopsy on Oliver’s body after it was discovered. She testified that the head was badly decomposed, and that the trauma to the head, which incorporated the left portion of the lip, was consistent with a gunshot wound or other type of trauma, with no evidence of any abrasion around it. The entrance of the gunshot wound was to the right back of the head, slightly to the right of the midline and low in the back of the head. X-ray films showed the shot pellets traveling in a slightly upward fashion, right to left. There was a laceration of the scalp consistent with a shot at close or contact range. There were some bones missing from the back of the head. There were no bruises to the hands consistent with defensive wounds. The cause of death, which was instantaneous, was from a shotgun wound to the head.

After Lebrón left for New York, the others having knowledge of the event reported the murder to law enforcement officers. All of the witnesses claimed that they had followed Lebron’s directions throughout the unfolding events because Lebrón had threatened them, and they were afraid that he might do to one of them what he had done to Oliver. Initially, two of these individuals, Joe and Mark Tocci, did not tell the complete truth concerning the extent to which members of the group had been involved in the murder. During the course of the interview, however, the witnesses, who were questioned by the officers separately, eventually recounted the events of the murder and its aftermath consistently with their testimony at trial. All of the witnesses other than the Tocci brothers gave statements which were consistent throughout, and also consistent with what the police were able to verify with evidence and other statements (such as where the body was hidden; where the truck was burned; how the checks were cashed; and where Oliver’s property was pawned).

At about the same time, a crime-scene investigation was being conducted by the Osceola County Sheriffs Department. Investigators observed several drops of what appeared to be dried blood in a big area at the southeast bedroom door of the home where the event allegedly occurred. They also discovered what appeared to be blood that had some foreign substance on it. The area was at least twelve to fourteen inches in diameter. A very strong stench of dried blood was detected immediately upon entering the residence.

Plastic balls were found inside the southeast bedroom, along with sponges and pellets. A spent Winchester twelve-gauge pheasant shotgun shell was found in a drawer in another bedroom. In a third bedroom, the police found four shotgun shells and the decedent’s ring in a pair of sneakers.

Shortly after these eyewitness reports were made to law enforcement, Lebrón, accompanied at the time by Stacie Kirk and Howard Kendall (who was involved in burning Oliver’s truck), was apprehended in a car parked on the street outside of Legz Diamond, and arrested. Incident to the arrest, a search of the vehicle was conducted, and a day planner was recovered from the center console underneath the dashboard between the passenger seat and the driver’s seat. Upon opening the planner, an identifying card with the name “Larry N. Oliver” was found. Detective Rodriguez retrieved the planner and secured it for safekeeping. He also found four shotgun shells in the center console.

After searching the vehicle, Detective Rodriguez returned to the precinct offices where Lebrón was being held, and was present while Detective Thompson interrogated Lebrón. Prior to speaking with Le-brón, Thompson read him the standard Miranda rights from two forms. Lebrón was also allowed to read the forms, and he signed or initialed the forms, indicating that he understood their content.

Rodriguez and Detective Delroeo from the Manhattan precinct were also present. They began questioning Lebrón at approximately 3:15 in the morning. Thompson obtained Lebron’s statement, and it was recorded on a microcassette. This was received into evidence, and played for the jury. In his recorded statement, Lebrón told the officer that he had stayed at the Gardenia house, sleeping on the couch, or in one of the rooms. He denied being at the house on the night of the murder, claiming to have gone to his former girlfriend’s house that night. He repeatedly said he did not know Oliver, although, at the end of the statement, he said “it could have happened” that he met Oliver that night, but simply did not remember the meeting. He recalled that one of the others had pawned a stereo in Orlando, and admitted having gone to Kinko’s with the others (where they had initially gathered on the night of the murder). He acknowledged having seen information about the missing red truck in a flyer, and having heard Oliver’s parents make an appeal on the news. When questioned about whether he had noticed any blood spot at the house, or smelled any strange odors there, he said: “It always smelled like that. We always — everybody said it was Mary. That’s what everybody always said, it was Mary.”

After he was arrested, Lebrón was charged with first-degree murder and armed robbery. While in jail, Lebrón wrote letters to Christina, who did not respond to them. In the letters, which were written in his own hand, Lebrón stated that he loved Christina, called her his fiancee, and referred to her testifying as an alibi witness for him. About a week before trial, however, Christina went to the Osceola County Sheriffs office with the information to which she testified (as a State’s witness) at trial. She stated that Lebrón threatened her at that time, so she had sought advice about what she should do. She decided to testify, because she “started thinking about if anything happened to, if anything happened to my daughter I would want somebody to come forward.”

Use of Special Verdict Forms at Trial

When it came time for the jury’s deliberation, special verdict forms were presented to the jurors. Pursuant to these forms, the jury was to determine whether Lebrón was or was not guilty of premeditated murder or felony murder, first degree (Count I). If the jury found Lebrón guilty of felony murder, it was to indicate whether Lebrón had a firearm in his possession at the time the offense was committed. The jury was also to determine whether Lebrón was or was not guilty of robbery (Count II). If the jury found find Lebrón guilty of robbery, it was to indicate whether Lebrón had a firearm in his possession at the time the robbery was committed. Lastly, the jury was provided with a special verdict form which applied only if the jury found Lebrón guilty of the felony murder charge, and which contained the following options: “We, the jury, having found the defendant guilty of felony first degree murder, find as follows: [Option 1] Jermaine Lebrón is the person who killed Larry Neal Oliver, Jr. [Option 2]' Larry Neal Oliver, Jr. was killed by a person other than Jermaine Lebrón.”

The jury expressed some confusion in attempting to use these forms. The jurors sent the judge the following note: “Does option # 2 mean the same as the “or” in (3) under Felony Murder-First Degree. Is this a standard document can an option be added.” After consulting with counsel, the judge clarified with the jury foreman (in counsels’ presence) what this question meant — ie., was the second option on the special verdict form (“Larry Neal Oliver, Jr. was killed by a person other than Jermaine Lebrón”) the same as the (3) “or” option in the Felony Murder First Degree instruction (“Larry Neal Oliver, Jr. was killed by a person other than Jermaine Lebrón but both Jermaine Lebrón and the other person who killed Larry Neal Oliver, Jr. were principals in the commission of robbery”). The jury was then advised that “the following part of the felony murder first degree instruction, ‘(3) Larry Neal Oliver was killed by a person other than Jermaine Lebrón but both Jermaine Le-brón and the person who killed Larry Neal Oliver were principals in the commission of robbery,’ is reflected by special finding as to felony murder option number 2, which reads ‘Larry Neal Oliver, Jr. was killed by a person other than Jermaine Lebrón.’ ” The jury was also asked, “What other options are you referring to?” However, the jury did not, thereafter, send the judge any further notes.

Upon full deliberation, the jury returned the verdict forms and found, as to Count I, that Lebrón was guilty of felony murder first degree. It found that Oliver was killed by a person other than Lebrón, and that Lebrón did not have a firearm in his possession during the commission of the offense charged in Count I. As to Count II, the jury found Lebrón guilty of robbery with a firearm. It found that Lebrón did have a firearm in his possession during the commission of Count II. Based upon the jury’s findings, Lebrón was convicted of first-degree murder and armed robbery.

Penalty Phase Proceedings

The penalty phase consisted of the presentation by the State of additional evidence, a Spencer hearing, and a sentencing hearing. During the penalty phase, the State maintained that it had been improper to use a special verdict form in the guilt phase to determine whether Lebrón was the shooter, because this issue should appropriately be determined during the penalty phase; that the jury’s findings were contrary to the evidence; and that the court was thus not bound by these findings. Foreclosing this argument, the court indicated that the jury had made its determination.

The State proceeded to present evidence of three aggravators during the penalty phase: (1) that Lebrón had committed the capital felony after having been convicted of a prior felony and placed on felony probation (possession of cocaine with intent to sell); (2) that Lebrón was previously convicted of a felony involving the use of violence to a person, and (3) that the capital felony was committed while Lebrón was engaged in the commission of a robbery. (Rather than merging the pecuniary gain aggravator with this one, the court found that the pecuniary gain aggravator was not present). Specifically, the State presented the testimony of Ronald H. Schroeder, a Sergeant with the Tactical Force Unit, Kissimmee Police Department. Schroeder was involved with two relevant investigations: an aggravated assault with a firearm on Brandi Gribbin (which occurred prior to Oliver’s murder), and an attempted first-degree murder, robbery with a firearm, and kidnaping of Roger Nasser (which took place after Oliver’s murder). Both of these events had resulted in convictions prior to the penalty phase in the Oliver murder.

Shroeder testified that Lebrón became embroiled in an argument with Brandi Gribbin over nonpayment of rent she owed for an apartment which he did not own, and in which he did not live. “An argument ensued and escalated where Mr. Le-brón left the apartment, came back in with a shotgun and ordered her to leave.... He pointed it at her, ordered her out and he also struck her in the face with the butt of the shotgun.”

With respect to the incident involving Roger Nasser, Shroeder testified that he obtained Nasser’s sworn statement regarding what had happened to him. Nasser stated that he had stopped by the same apartment to help Stacie Kirk move. While Nasser was at the apartment, Kendall and Lebrón (whom Nasser did not know) entered the apartment and went to the back room. Shortly thereafter, they returned, with Lebrón carrying a shotgun, and Kendall having a stun gun in his hands. Lebrón and Kendall robbed Nasser. Lebrón pointed the shotgun at Nasser and, at some point, gave the shotgun to Kendall while Lebrón slapped and kicked Nasser. Then, Lebrón blindfolded Nasser and escorted him at gunpoint to a vehicle in the parking lot. After they entered the vehicle, Kendall drove and Nasser was seated in the back between Kirk and Le-brón. While Nasser was being transported to their destination, Kirk and Lebrón alternated in using the stun gun on Nasser to the head and [genital] area.

When the group arrived at a remote orange grove area in the Lake Gentry area of Osceola County, Nasser was ordered out of the vehicle. Lebrón still held the shotgun, and he required Nasser to kneel and face him. Nasser stated that Lebrón then put the shotgun to his chest and said, “Tell the Lord Bugsy said ‘Hi.’” Lebrón then squeezed the trigger, but the gun misfired.

Lebrón returned to the truck in an attempt to either reload or repair the weapon. Nasser was then able to run into the orange groves and hide. He waited some time before seeking safety in a nearby residence. Later that morning, Nasser gave his statement to law enforcement. He also identified Lebrón from a photographic lineup. Lebron’s convictions for the two incidents involving Gribbin and Nasser were entered into evidence. Le-bron’s New York convictions for attempted robbery and possession of cocaine with intent to sell, reflecting that Lebrón was on probation at the time of Oliver’s murder, were also entered into evidence. Finally, the State presented victim impact testimony from the Olivers regarding their son’s uniqueness.

The defense presented portions of the testimony of Joe Tocci and Charissa Wilburn given in the Gribbin assault trial. No other evidence was presented. During the penalty phase closing argument, the prosecutor said, “I would submit to you that it has been established beyond any question that the defendant, Jermaine Le-brón, is the individual who killed Larry Neal Oliver, Junior.” The defense objected, and moved for a mistrial. The court sustained the objection, and instructed the jury to disregard counsel’s remark, but did not declare a mistrial. The defense then argued that someone other than Lebrón was the shooter, that the other participants had received light sentences, and that Lebrón played a limited role in the murder. After receiving appropriate instructions, the jury retired to consider its recommendation. By a seven-to-five vote, the jury recommended that Lebrón receive the death penalty.

A Spencer hearing was held, at which deposition testimony of Lebron’s mother, Jocelyn Ortiz, was presented. Lebrón also presented certain school records from his childhood, which appear to have been compiled at the various State residential schools in which Lebrón was placed over the years through a New York State agency, at his mother’s request. Based upon consideration of all the evidence and the jury’s recommendation, the trial court found that three aggravating circumstances had been established: (1) the capital felony was committed by a person previously convicted of a felony and placed on felony probation; (2) the defendant was previously convicted of a felony involving the use or threat of violence to a person; and (3) the capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of the crime of robbery. The court did not find the pecuniary gain aggravating factor, since “the State may not rely upon a single aspect of the offense to establish multiple aggravating circumstances.”

The court rejected the proposed mitigating circumstance that “the defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor.” The defense .argued that the court was bound by the jury’s determination that Lebrón was not the shooter, and that such finding supported this mitigator, which should be found and given great weight. The court interpreted its obligation under section 921.141, Florida Statutes (1995), as imposing a “responsibility to independently review the evidence and consider the credibility of each witness.” The court then recited the evidence related to Lebron’s participation in the incident, concluding:

The evidence in this case, through the testimony of the witnesses, clearly establishes beyond any reasonable doubt that Jermaine Lebrón, the defendant, killed Larry Neal Oliver, Jr. The defendant was the one who lured the victim back to his house. It was the defendant who, on the way to his home, said he was going to jack this guy; that he was going to do it for all the guys to see. It was the defendant who lured the victim to the back of the house. It was the defendant who blew off the victim’s head with a shotgun. It was the defendant who directed the clean up of the crime scene and the disposal of the victim’s body and his truck.

The role of the defendant, Jermaine Lebrón, in the murder and robbery of Larry Neal Oliver was anything but minor. The defendant was the producer, director, chief actor, and shooter in the murder of the victim.

While this Court is ever mindful that the jury found that someone other than the defendant killed the victim, the evidence presented in this case does not support that position. The only thing that supports that position was the argument of defense counsel. The Court has carefully reviewed the testimony of each and every witness that testified in this matter and considered the credibility of each witness in reaching its decision concerning this mitigating factor. The Court is also mindful that the jury was instructed concerning this mitigating factor and still a majority of the jury recommended a sentence of death. The court rejected the proposed mitigating circumstance that “the defendant was an accomplice in the capital felony committed by another person.

The Court finds that this mitigating factor is not present.

The court also found that the defendant’s age (twenty-one years old at the time the crime was committed) was not a mitigating factor, because there was “no evidence that the defendant was not mentally and emotionally mature.” The trial court found no other statutory mitigators, but found several nonstatutory mitigating factors, which it accorded either very little weight or some weight.

The trial court then engaged in an analysis to determine whether the culpability requirements of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), had been met, first stating the applicable standard established in Tison, 481 U.S. at 157-58, 107 S.Ct. 1676, that “the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result.” Based upon an articulated analysis of the record evidence, the court observed that it “established beyond a reasonable doubt that the defendant murdered Larry Neal Oliver, Jr., and that, if not, he was a major participant in the felony and acted with reckless disregard for human life.” He concluded, on this basis, that Lebrón “was a major participant in the felony committed in this case and at the very least was recklessly indifferent to human life,” and, therefore, that the Enmund-Tison culpability criteria had been satisfied. Finding that the aggravators here greatly outweighed the mitigators, the trial court sentenced Lebrón to death.

II. ANALYSIS

Double Jeopardy

Lebrón raises seven claims on appeal. First, he contends that his retrial was a violation of double jeopardy. Here, the trial judge had declared a mistrial based upon jury deadlock. This occurred after it had come to the trial court’s attention, through an in-camera, transcribed communication between a juror and the trial court (which was immediately disclosed by the court to both counsel, neither of whom objected), that the jury foreman had failed to disclose a bias against the police. Immediately following this disclosure, the jury had sent a note to the trial court indicating that the jury “continue[d] to be divided from beginning to the end.” The trial court then conducted the following proceeding in open court, with both counsel and the defendant (but not the jury) present:

THE COURT: You may be seated. Let the record reflect that the defendant is present along with counsel for the defendant, the assistant state attorney.

I have the following note from the jury: we, the jury, feel that we cannot and will not be able to reach a verdict on either counts one or count two. We continue to be divided from beginning to the end.

Signed, the foreman, [foreman’s name]

The court indicated that the jury was hopelessly deadlocked. It also related the substance of the in-camera discussion in which juror “Doe” had suggested that one of the other jurors may have lied during voir dire. The court indicated a belief that it would be useless to give an Allen charge.

Lebron’s counsel stated that he wanted-the Allen charge to be read to the jury. The State Attorney suggested that an alternate be substituted for juror 1227. The court announced its intention to bring the jury into the courtroom and inquire whether they felt that additional instructions or deliberations would help, indicating that, if the jury said “No,” the court would declare a mistrial. Neither side objected. The jury was then brought in, and the court read aloud the foreman’s note. The judge asked each juror if he or she thought that “any additional instructions by the court or any additional deliberations by you would end this impasse that you currently have?” Four of the jurors answered that they were “not sure”; eight answered either “no” or “I don’t think so.” Without objection, the court then declared a mistrial. The jury was dismissed, and a new trial date was discussed. When defense counsel later filed a motion to dismiss the indictment prior to retrial, the trial court denied the motion, indicating that, after the jury’s note was submitted following twelve hours of deliberation, there was no need to continue a hopeless task.

Where a defendant objects to the declaration of a mistrial, the burden is on the State to show that there was a manifest necessity for the trial court’s determination; otherwise, double jeopardy attaches. See Thomason v. State, 620 So.2d 1234, 1237-1238 (Fla.1993). As stated by this Court in Thomason, “[t]he manifest necessity standard must be applied on a case-by-case basis and cannot be applied mechanically.” Id. (citing Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); Strawn v. State ex rel. Anderberg, 332 So.2d 601 (Fla.1976); Adkins v. Smith, 205 So.2d 530, 532 (Fla.1967)). This Court has indicated that jury deadlock is a valid ground for the declaration of a mistrial. See State ex rel. Williams v. Grayson, 90 So.2d 710, 713 (Fla.1956) (“Illustrative of the urgent or necessary reasons that would justify the discharge of the jury at the stage of the trial mentioned would be: (a) the illness of the judge, the accused, or a juror requiring the absence of any of them from the court, or (b) the inability of the jury to agree on a verdict after due and proper deliberation, or (c) a consent of the accused himself.”). Thus, if the trial court in this case properly-declared a mistrial based upon sufficient record evidence of a hung jury, then double jeopardy does not attach. See United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824) (holding that a defendant in a capital case might be retried after the trial judge had, without the defendant’s consent, discharged a jury that reported itself unable to agree); see generally Rose v. Dugger, 508 So.2d 321 (Fla.1987).

In Rose — a case in which the defendant’s first trial had ended in a mistrial which was concededly due to a hung jury — this Court approved the analysis set forth in Richardson v. United States, 468 U.S. 317, 326, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984), stating:

[Rose] contends that if his motions for judgment of acquittal at the close of the state’s case and at the close of all the evidence were improperly denied in the first trial, then his later trial and convictions would be barred by the double jeopardy clauses of the fifth amendment of the United States Constitution and article I, section 9 of our state constitution. This contention, as it relates to the United States Constitution, has been considered and rejected in Richardson v. United States, 468 U.S. 317, 326, 104 S.Ct. 3081, 3086, 82 L.Ed.2d 242 (1984):

[W]e reaffirm the proposition that a trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which petitioner was subjected. The Government, like the defendant, is entitled to resolution of the case by verdict from the jury, and jeopardy does not terminate when the jury is discharged because it is unable to agree. Regardless of the sufficiency of the evidence at petitioner’s first trial, he has no valid double jeopardy claim to prevent his retrial. (Emphasis supplied.)

See United States v. Brack, 747 F.2d 1142, 1148 (7th Cir.1984) (regardless of the sufficiency of the evidence presented at the first trial, when first trial ended in mistrial due to a hung jury, no valid double jeopardy claim to prevent retrial), cert. denied, 469 U.S. 1216, 105 S.Ct. 1193, 84 L.Ed.2d 339 (1985); Berry v. State, 458 So.2d 1155, 1156 (Fla. 1st DCA 1984) (double jeopardy applies only if there has been some event, such as an acquittal, that terminates the original jeopardy; the failure of a jury to reach a verdict and a trial court’s declaration of a mistrial due to a hung jury are not events terminating original jeopardy). See also Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652, (1982) (“[a] deadlocked jury ... does not result in an acquittal barring retrial under the Double Jeopardy Clause”).

We recognize that this Court has the power and authority to construe our Florida Constitution in a manner which may differ from the manner in which the United States Supreme Court has construed a similar provision in the federal constitution. See PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741 (1980). See also State v. Kinchen, 490 So.2d 21, 23 (Fla.1985) (Ehrlich, J., concurring in part and dissenting in part). We are persuaded, however, that the view expressed in Richardson is logically correct and we see no intent on the part .