Dailey v. State

594 So. 2d 254, 1991 WL 238638
CourtSupreme Court of Florida
DecidedNovember 14, 1991
Docket71164
StatusPublished
Cited by27 cases

This text of 594 So. 2d 254 (Dailey v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dailey v. State, 594 So. 2d 254, 1991 WL 238638 (Fla. 1991).

Opinion

594 So.2d 254 (1991)

James DAILEY, Appellant,
v.
STATE of Florida, Appellee.

No. 71164.

Supreme Court of Florida.

November 14, 1991.
Rehearings Denied March 19, 1992.

*255 James Marion Moorman, Public Defender and A. Anne Owens, Assistant Public Defender, Tenth Judicial Circuit, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen. and Joseph R. Bryant, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Dailey appeals his conviction for first-degree murder and sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the conviction and reverse the sentence.

On May 5, 1985, fourteen year-old Shelly Boggio, her twin sister Stacey, and Stephanie Forsythe were hitchhiking near St. Petersburg when they were picked up by James Dailey, Jack Pearcy and Dwaine Shaw. The group went to a bar and then to Pearcy's house, where they met Gayle Bailey, Pearcy's girlfriend. Stacey and Stephanie returned home. Shelly, Gayle and the men went to another bar and then returned to Pearcy's house about midnight. Shelly left in the car with Dailey and Pearcy, and when the two men returned without Shelly several hours later Dailey was wearing only a pair of wet pants and was carrying a bundle. The next morning, Dailey *256 and Pearcy visited a self-service laundry and then told Gayle to pack because they were leaving for Miami. Shelly's nude body was found that morning floating in the water near Indian Rocks Beach. She had been stabbed, strangled and drowned. Dailey and Pearcy were charged with her death.

Pearcy was convicted of first-degree murder and sentenced to life imprisonment. At Dailey's subsequent trial, three inmates from the county jail testified that Dailey had admitted the killing to them individually and had devised a plan whereby he would later confess when Pearcy's case came up for appeal if Pearcy in turn would promise not to testify against him at his own trial. Pearcy refused to testify at Dailey's trial. Dailey presented no evidence during the guilt phase. The jury found him guilty of first-degree murder and unanimously recommended death. At sentencing, Dailey requested the death penalty and the court complied, finding five aggravating[1] and no mitigating circumstances.

GUILT PHASE

Dailey was extradited from California to stand trial in Florida and in opening argument the prosecutor made the following comment: "Detective Halliday will indicate to you he had to go out because Mr. Dailey was fighting extradition to come back to Florida." Defense counsel unsuccessfully moved for a mistrial. During Detective Halliday's testimony, the following exchange took place:

Prosecutor: When was Mr. Dailey arrested on that arrest warrant?
Halliday: Mr. Dailey was arrested on that, I believe, it was in November of '85.
Prosecutor: As a result, did you take a further part in returning him to the State of Florida?
Halliday: Yes, in the extradition procedures, yes.
Prosecutor: Could you explain to the jury what extradition proceedings are?

At that point, defense counsel again moved for a mistrial, which was again denied. When testimony resumed, the prosecutor stated briefly, "Okay. Detective Halliday, we were talking about the extradition before." The prosecutor then asked Halliday the reason for going to California and the detective replied that he did so in order to identify Dailey. No further mention of extradition was made.

Dailey claims that mention of his efforts to avoid extradition was irrelevant and prejudicial. The State, on the other hand, contends that the evidence was relevant to show flight and consciousness of guilt. Dailey had moved to Florida only months before the murder. The day after the murder, he fled to Miami, but then left the next day. The fact that many months later Dailey was residing in California and exercised his right to resist extradition there has no bearing on flight following the crime or consciousness of guilt. The evidence should have been excluded. Because the statements were extremely brief and the testimony undeveloped, however, we find beyond a reasonable doubt that the error did not affect the verdict.[2]See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986).

The prosecutor introduced into evidence a photograph of Dailey taken at the time he was booked into jail in Florida following extradition. Defense counsel objected, claiming that the photograph had not been provided during discovery. The trial court responded:

*257 Here's what I am going to do. I will ask the jury to step out. If you desire special voir dire of this witness, you may have it.

Defense counsel declined the offer. Dailey now claims that the trial court committed per se reversible error by not conducting a hearing into the alleged discovery violation pursuant to Richardson v. State, 246 So.2d 771 (Fla. 1971). We conclude that because defense counsel declined the offer of a special inquiry outside the jury's presence and failed to request any alternative inquiry, the trial court properly overruled the objection. We note that the photograph was similar to one that had already been admitted and the effect of its admission was inconsequential.

Detective Halliday testified that he went to Kansas to interview Pearcy's mother and obtained Pearcy's shirt, which was introduced into evidence. The following exchange then took place:

Prosecutor: Now, Jack Pearcy was ultimately returned to Pinellas County?
Halliday: Yes, he was.
Prosecutor: When was he returned to Pinellas County?
Halliday: It was on the 21st, I believe of May. I am not exactly sure of the date but he came back with us after we went out there.
Prosecutor: Did you collect any further evidence after he returned?
Halliday: Yes, we collected shoes from him and we also, when we returned here, found a sheath at the Walsingham Reservoir which was a knife sheath.

Defense counsel objected and moved for a mistrial, which was denied. Dailey now claims that although Pearcy refused to testify at Dailey's trial the above statement was designed to introduce into evidence the content of Pearcy's out-of-court statement concerning the location of the knife sheath and was thus inadmissible hearsay.[3] The testimony, however, does not explicitly or by implication attribute the finding of the sheath to statements by Pearcy. It merely describes the temporal sequence in which evidence was uncovered.[4] We find no error.

As part of the guilt phase jury instructions, the court gave Florida Standard Jury Instruction (Criminal) 3.01 concerning principals, including the sentence: "To be a principal, the defendant does not have to be present when the crime is committed." Dailey contends this was error because no evidence was introduced showing that he was not present. As the trial court pointed out, however, it gave the complete instruction in an abundance of caution in case either side argued in closing that Dailey had not been present. The instruction is a correct statement of the law and we find no error.

During the trial, Dailey did not take the stand. The prosecutor made the following statement in closing argument:

Now, there are only three people who know exactly what happened on that Loop area... .

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Bluebook (online)
594 So. 2d 254, 1991 WL 238638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dailey-v-state-fla-1991.