Livingston v. State

565 So. 2d 1288, 1988 WL 215389
CourtSupreme Court of Florida
DecidedMarch 10, 1988
Docket68323
StatusPublished
Cited by61 cases

This text of 565 So. 2d 1288 (Livingston 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
Livingston v. State, 565 So. 2d 1288, 1988 WL 215389 (Fla. 1988).

Opinion

565 So.2d 1288 (1988)

Jessie James LIVINGSTON, Jr., Appellant,
v.
STATE of Florida, Appellee.

No. 68323.

Supreme Court of Florida.

March 10, 1988.
Rehearing Denied September 6, 1990.

*1289 Michael E. Allen, Public Defender, and David A. Davis, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Norma J. Mungenast, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Jessie Livingston appeals his conviction of, among other things, first-degree murder and his sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the convictions but vacate his death sentence and direct the trial court to sentence Livingston to life imprisonment with no possibility of parole for twenty-five years.

Livingston broke into a house around noon on February 18, 1985 and stole two cameras, a .38 caliber pistol, and some jewelry. About 8:00 that evening he entered a convenience store/gas station, shot the female attendant twice, fired one shot at another woman inside the store, and carried off the cash register. Livingston then went to the home of an acquaintance, Terry Baker, to get help with opening the register. The authorities were called, and the police arrested Livingston at the Baker residence.

When arrested, Livingston was wearing jewelry taken in the afternoon burglary. He confessed to that burglary as well as the armed robbery and shooting and told the police where to find the cash register and the pistol. The police then found these items where Livingston said he had put them. Technical examination showed his fingerprints on both the register and the pistol.

The state charged Livingston by information with burglary and grand theft. When the shooting victim died six weeks later, the state indicted Livingston for first-degree murder, attempted first-degree murder, armed robbery, and displaying a weapon during a robbery. On the state's motion *1290 the trial court consolidated all charges for trial. The jury convicted Livingston as charged and recommended death for the homicide conviction. The trial court agreed and imposed the death sentence.

Livingston's counsel objected to the consolidation, and, as his first point on appeal, Livingston claims that the trial court committed reversible error by consolidating all of the charges against him. We disagree.

Florida Rule of Criminal Procedure 3.151(b) provides that related offenses can be consolidated on a timely motion by either side. Offenses are related "if they are triable in the same court and are based on the same act or transaction or on two or more connected acts or transactions." Fla. R.Crim.P. 3.151(a). Relevant considerations for consolidation include the expense, efficiency, convenience, and judicial economy incident to having one trial as opposed to two. See State v. Vazquez, 419 So.2d 1088 (Fla. 1982); Crum v. State, 398 So.2d 810 (Fla. 1981). Prejudice to a defendant, however, will outweigh these considerations. Vazquez; Crum.

Livingston argues that the instant crimes did not arise from the same act or transaction or from two connected acts or transactions. He claims that only the pistol, stolen during the burglary and used during the armed robbery/murder, connects the charges against him. Therefore, according to Livingston, trying the charges together did nothing but demonstrate his criminal propensity.

Paul v. State, 385 So.2d 1371 (Fla. 1980), reflects the current law on consolidation. State v. Williams, 453 So.2d 824 (Fla. 1984). In Paul we adopted Judge Smith's dissent regarding consolidation to the district court's decision in Paul v. State, 365 So.2d 1063 (Fla. 1st DCA 1979). The state charged Paul with three counts of sexual battery and attempted sexual battery for attacking one woman in a college dormitory on April 9 and for attacking two women in their dormitories on May 14 and moved for consolidation. Judge Smith dissented to approving the consolidation because "the rules do not warrant joinder or consolidation of criminal charges based on similar but separate episodes, separated in time, which are `connected' only by similar circumstances and the accused's alleged guilt in both or all instances." 365 So.2d at 1065-66.

Paul dealt with similar fact evidence, attacks on three women in their college dormitories. Judge Smith objected to consolidation of the first incident with the last two because the similarities did not warrant introducing evidence of the first attack into consideration of the others and vice versa. Id. at 1066. This case is factually distinguishable from Paul. See Johnson v. State, 438 So.2d 774 (Fla. 1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984).

The crimes charged against Livingston are dissimilar (burglary and grand theft as opposed to armed robbery and murder). They are, however, connected in an episodic sense because they occurred only hours apart in the same small town and because the pistol stolen in the burglary became the instrument for effecting the armed robbery and murder. See King v. State, 390 So.2d 315 (Fla. 1980), cert. denied, 450 U.S. 989, 101 S.Ct. 1529, 67 L.Ed.2d 825 (1981); Green v. State, 408 So.2d 1086 (Fla. 4th DCA 1982). Granting consolidation is within the trial court's discretion. Ashley v. State, 265 So.2d 685 (Fla. 1972). We find no abuse of discretion in this case.

Even if we found that the court erred in granting the consolidation, we would not find that error to warrant reversal. In United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986), the Court held that the harmless error rule should be applied to misjoinders and that reversal is required only if misjoinder causes actual prejudice by having a damaging effect or influence on the jury's verdict. In view of the overwhelming evidence of Lane's guilt the Court found any error harmless. We find the same in the instant case.

The evidence against Livingston was overwhelming: he confessed to both the burglary and robbery/murder; he told *1291 friends he needed money and showed them the stolen pistol; when arrested, he was wearing the stolen jewelry; his fingerprints were found on the murder weapon; he made admissions to Baker; eyewitnesses identified him. Livingston has not demonstrated how consolidation caused him any prejudice. Therefore, if the court committed any error on this point, it was harmless beyond any reasonable doubt. See Zeigler v. State, 402 So.2d 365 (Fla. 1981), cert. denied, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982); King; Green.

These crimes occurred in February 1985, and the trial took place in September 1985. Shortly before trial the police arrested Terry Baker, a witness against Livingston, for an unrelated crime. At the time of trial Baker had not been formally charged. In cross-examining Baker defense counsel asked if Baker had ever been convicted of a crime; Baker responded that he had been convicted a couple of times for fighting and "stuff like that." Counsel then asked if the state had a case currently pending against Baker. The court sustained the state's objection to the question. Later, during the examination of a police investigator, the state asked about statements Baker made after Livingston's arrest. The court overruled Livingston's objection to this testimony as hearsay which amounted to a prior consistent statement.

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Bluebook (online)
565 So. 2d 1288, 1988 WL 215389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/livingston-v-state-fla-1988.