Austin v. State

679 So. 2d 1197, 1996 WL 425679
District Court of Appeal of Florida·Decided July 31, 1996·No. 94-778, 94-1209·Published·Cited by 6 cases

Opinion

679 So.2d 1197 (1996)

Cornell AUSTIN and Kelvin Leroy Bryant aka Jit, Appellants,
v.
The STATE of Florida, Appellee.

Nos. 94-778, 94-1209.

District Court of Appeal of Florida, Third District.

July 31, 1996.
Rehearings Denied October 16, 1996.

McKenna & Obront and Curt Obront, Coconut Grove; Sheryl Lowenthal, Coral Gables, for appellants.

Robert A. Butterworth, Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.

Before BARKDULL, GERSTEN and GREEN, JJ.

BARKDULL, Judge.

Six co-defendants were charged, by indictment, with first degree murder, attempted first degree murder, robbery, kidnapping, burglary, arson and conspiracy to commit a felony. At the outset of the evening of these offenses, the defendants discussed plans to rob someone. The plan was for the woman in the group to pull cars over as if to have sex and the others would then come out to *1198 rob them. They made an attempt to stop a car in order to rob the occupants, but that plan did not work out because the occupants were suspicious and possibly police officers. The individuals then followed a second car into a motel parking lot, and all six approached the other car. The victims, Trevor Munnings and Bridgette Gibbs, were approached from behind and thrown to the ground. One individual took Munnings' wallet, cash and car keys and the victims were then ordered to get into the trunk of Munnings' car. Since Gibbs resisted, one of the perpetrators grabbed her, hit her head against the trunk of the car, and put her inside. The perpetrators drove around with the victims in the trunk, making several stops along the way. At one of the stops, the trunk was opened, and the victims were removed so that their hands, face and feet could be tied with tape (type not specified). Munnings attempted to crawl under the car, but was pulled back and hit over the head with a rock. Since the tape was not holding up well, the victims were placed back into the trunk while one of the perpetrators went to get duct tape. When he returned, Munnings was taken out of the trunk, taped again, and placed back into the trunk. Gibbs was then removed from the trunk, taped and sexually battered with a stick. Once again, Gibbs was returned to the trunk, and the perpetrators continued driving. At the next stop, Gibbs was removed from the trunk and thrown over a bridge. The car continued driving and about half an hour later Munnings was removed from the trunk and also thrown over a bridge into a canal. The perpetrators then proceeded to a gas station to purchase gasoline before driving to another location to pour gas on the car and ignite it with a flaming cloth. The perpetrators then fled in their car, which had been left in the vicinity, went out for breakfast using the stolen cash, and divided the remainder of the cash before heading home. In the meantime, Munnings was able to extricate himself from the duct tape and obtain assistance from a police officer. His burned car was found shortly thereafter. Gibbs' body was found the following morning, and the medical examiner testified that the cause of death was homicide by drowning. During the next several weeks, all six of the codefendants confessed to being involved in the offenses. These statements were made after Miranda warnings had been given.

Co-defendant Cobb's trial was severed, and co-defendants Glass and Nolden entered guilty pleas prior to trial and testified on behalf of the prosecution. In the case presently under review, three co-defendants, Austin, Bryant and Smith, were tried at a joint trial. The jury found the three defendants guilty as charged. Austin received six life sentences and three 30-year sentences, all to run consecutively, and Bryant received a life sentence on the murder with concurrent sentences of 15 and 20 years on the remaining counts. The life sentences for the first degree murder also carried a mandatory minimum of 25 years. Smith was sentenced to death, and as such, his direct appeal went before the Florida Supreme Court. As for Austin and Bryant, their appeals were consolidated for record and briefing purposes and the oral arguments were scheduled consecutively. The case is now consolidated for the purposes of this opinion.

Prior to the trial of the three co-defendants, the trial court heard extensive motions. Primarily, these were motions to sever the trials and motions to suppress the statements of various codefendants. These motions were denied, and again denied when renewed during trial, prior to the admission of the statements. Each of the statements made by a co-defendant had been redacted prior to trial, so that references to other co-defendants were deleted and replaced with nondescript pronouns. Additionally, the jurors were advised that they were to consider the individual codefendant's statement only as to the co-defendant giving that particular statement. The jury found all three co-defendants guilty as charged.

Austin and Bryant raise five issues on appeal, all of which we find to be without merit. First, the defendants contend that the trial court erred in refusing to grant the motions for severance. The Confrontation Clause was not violated in this instance by the admission of statements of non-testifying co-defendants with a limiting instruction, where each confession was redacted to eliminate *1199 the name of or reference to the other defendants. See Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987). Second, the defendants contend that the trial court erred in refusing to allow the defendants to bring in evidence regarding failed polygraph examinations taken by key prosecution witness Kevin Nolden. The Florida courts have long held that polygraph evidence is inadmissible absent a stipulation between the parties. See Davis v. State, 520 So.2d 572 (Fla.1988); Delap v. State, 440 So.2d 1242 (Fla.1983), cert. denied 467 U.S. 1264, 104 S.Ct. 3559, 82 L.Ed.2d 860 (1984); Cohen v. State, 581 So.2d 926 (Fla. 3d DCA 1991), review denied 592 So.2d 679 (Fla.1991); Carter v. State, 474 So.2d 397 (Fla. 3d DCA 1985), review denied 488 So.2d 69 (Fla.1986). The defendants' third contention is that they are entitled to a new trial based upon improper remarks or comments made by the prosecutor throughout the proceedings. We agree with the state that these comments did not result in reversible error. See § 924.33 Fla.Stat. (1995). Next, defendants argue that the trial court erred in denying the motions to suppress post-arrest statements. The determination of voluntariness is based upon the totality of the circumstances, and the situation must be viewed in the light most favorable to the prevailing party. See Traylor v. State, 596 So.2d 957 (Fla.1992); State v. Rizo, 463 So.2d 1165 (Fla. 3d DCA 1984). Accordingly, we find the statements to have been voluntarily made. Finally, the defendants argue that the trial court erred in permitting the prosecutor to exercise a peremptory challenge against an African-American juror for reasons that were not neutral, not record supported, or otherwise pretextual.

The trial court, the prosecutor and defense counsel questioned this juror regarding her employment as a guidance counselor. Defense counsel's primary concern was that this juror might have a problem weighing the mitigating circumstances while serving on a penalty phase jury. When questioned about her position on this issue, and on the death penalty in general, the juror stated that she would te

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