Kessler v. State

752 So. 2d 545, 1999 WL 1044173
CourtSupreme Court of Florida
DecidedNovember 18, 1999
Docket90,035
StatusPublished
Cited by7 cases

This text of 752 So. 2d 545 (Kessler 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
Kessler v. State, 752 So. 2d 545, 1999 WL 1044173 (Fla. 1999).

Opinion

752 So.2d 545 (1999)

Berry KESSLER, Appellant,
v.
STATE of Florida, Appellee.

No. 90,035.

Supreme Court of Florida.

November 18, 1999.

*546 James Marion Moorman, Public Defender, and Paul C. Helm, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Candance M. Sabella, Assistant Attorney General, Tampa, Florida, for Appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Berry Kessler. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We reverse the conviction because the trial court failed to allow adequate screening of prospective jurors concerning pretrial publicity.

Berry Kessler and John Deroo established Custom Craft Cabinetry, a cabinet manufacturing shop, in Hudson, Florida, in 1990. A year later, on February 3, 1991, Deroo's body was found in the shop by Kessler and two friends. He had been shot six times in the face. Based on evidence uncovered in subsequent years, Kessler was indicted for first-degree murder in May 1994. Evidence at trial showed the following: Kessler had purchased a $500,000 "key man" life insurance policy on Deroo in March 1990, and then just weeks before the murder had tried to increase its value to $1,000,000; after Deroo's death, when Kessler was told that Deroo had not kept up the payments on the policy, Kessler exclaimed, "Oh my god" (Kessler had been sending Deroo funds to pay the premiums); Kessler subsequently initiated a scheme to set up another corporation (XTC Leather and Lace), hire a figurehead ("Bo" Yankee), insure him for up to $1,000,000 as a "key man," and then murder him; this latter scheme was infiltrated by the FBI and in the course of this plot Kessler made many inculpatory remarks concerning the Deroo murder, which were recorded by the FBI.[1]

Kessler was tried for the Deroo murder, and the FBI tapes were introduced at trial. He was convicted as charged. The trial court pursuant to the jury's nine-to-three vote sentenced him to death based *547 on two aggravating circumstances,[2] two statutory mitigating circumstances,[3] and several nonstatutory mitigating circumstances.[4] Kessler raises six issues on appeal,[5] but we find a single claim dispositive.

Prior to trial, Kessler on September 6, 1996, filed with the court a three-page "Motion for Individual and Sequestered Voir Dire," stating in part:

The defendant, by and through undersigned counsel, respectfully moves this Honorable Court to order that prospective jurors in this cause be questioned in voir dire individually and out of the hearing of other prospective jurors, for the purpose of discerning their ... knowledge of the case based upon pre-trial publicity and asserts the following grounds in support of his motion:
A. In order to obtain a fair and impartial jury, it is absolutely essential to inquire of each prospective juror about his knowledge of the offense, the parties and the witnesses. It is necessary to inquire what the veniremen's knowledge is and to ask questions to determine how that knowledge will affect his deliberations.
1. By explaining what he or she has heard about the charges or what he or she knows about parties or witnesses, a venireman may very likely impart his knowledge to the other prospective jurors unless there is individual, sequestered voir dire. Such knowledge, which is often based on opinion, rumors, hearsay, media coverage and other sources of inadmissible evidence, can taint the entire venire that is exposed to it and serve to deny the Defendant a fair trial by an impartial jury.
2. Whenever there is believed to be a significant possibility that individual jurors will be ineligible to serve because of exposure voir dire shall take place outside the presence of other chosen and prospective jurors.
. . . .
D. To deny this motion it to deny the Defendant his right to a fair trial by an impartial jury comprised of a representative cross-section of the community, in violation of Amends. V, VI and XIV, United States Constitution and Art. I, Sect. 2, 9, 16 and 22, Florida Constitution.

(Citations omitted.) The court denied the motion and instead required prospective jurors to complete a brief (i.e., three-question) *548 form asking if they were familiar in any way with the named individuals or charged crimes.[6] The court made no provision for private follow-up questioning of jurors who responded affirmatively to the general questions on the form. During voir dire, defense counsel renewed his request for individual and sequestered questioning, and the court again denied the request.[7]

On the morning of the second day of voir dire, Tuesday, December 10, 1996, the St. Petersburg Times newspaper published on the front page of its Pasco County edition an article concerning the trial. The title read: "Murder-for-hire trial starts today." The subtitle stated: "The state is pursuing charges against a defendant who has already been convicted in federal court of killing a Hudson cabinet-maker." The caption below a picture of Kessler read: "Berry Kessler is serving a life sentence with no possibility of parole." The text of the article stated in part:

The trial is unusual for a number or reasons, chief among them that Kessler already has been convicted in federal court in the killing of Hudson cabinet-maker John Deroo and an Ohio businessman. Kessler is serving a life sentence in prison with no possibility of parole.
. . . .
He was arrested two years [after the killing of Deroo] and convicted of trying to arrange a second hit on another business partner, who was involved in a pornography shop with Kessler in Columbus, Ohio.
At the time, Columbus police said Kessler had been a suspect in at least five other slayings of business associates. The cases have never been solved.

T. Christian Miller, Murder-for-Hire Trial Starts Today, Pasco Times, St. Petersburg Times, Dec. 10, 1997, at 1B.

Prior to commencement of voir dire that day, defense counsel asked the court to poll the venire concerning the newspaper article, and the court refused:

MR. EBLE (defense counsel): Would the Court please ask if [prospective jurors] *549 read the St. Pete Times, or the Court would let us ask them if they're Times readers?
THE COURT: I'm not inclined to do that, because that simply brings up specificity, which only goes back—I think the standard questionnaire covers it, so your request is denied.

During the subsequent voir dire, the following discussions took place with venireperson Mengel:

THE COURT: ... Mr. Mengel, do you feel that you can put aside anything that you may have read or heard about this case and serve with an open mind and reach a verdict based only on the law and the evidence presented during the course of the trial?
THE COURT: Yes, sir.
. . . .
THE COURT: All right. Thank you, sir. Mr. Mengel, is your knowledge concerning this charge based upon firsthand knowledge, that is, something you actually saw or heard, or upon secondhand knowledge?
PROSPECTIVE JUROR MENGEL: Newspaper this morning.
THE COURT: All right.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dalia Dippolito v. State
143 So. 3d 1080 (District Court of Appeal of Florida, 2014)
Suri v. State
937 So. 2d 216 (District Court of Appeal of Florida, 2006)
Whitby v. State
933 So. 2d 557 (District Court of Appeal of Florida, 2006)
Busby v. State
894 So. 2d 88 (Supreme Court of Florida, 2005)
Rodas v. State
821 So. 2d 1150 (District Court of Appeal of Florida, 2002)
Crawford v. State
805 So. 2d 997 (District Court of Appeal of Florida, 2001)
Hamdeh v. State
762 So. 2d 1030 (District Court of Appeal of Florida, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
752 So. 2d 545, 1999 WL 1044173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kessler-v-state-fla-1999.