Mollica v. State

374 So. 2d 1022
CourtDistrict Court of Appeal of Florida
DecidedJuly 27, 1979
Docket78-1756
StatusPublished
Cited by14 cases

This text of 374 So. 2d 1022 (Mollica v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mollica v. State, 374 So. 2d 1022 (Fla. Ct. App. 1979).

Opinion

374 So.2d 1022 (1979)

David P. MOLLICA, Appellant,
v.
STATE of Florida, Appellee.

No. 78-1756.

District Court of Appeal of Florida, Second District.

July 27, 1979.
Rehearing Denied September 17, 1979.

A.P. Gibbs of Gibbs & McAlvanah, P.A., Dade City, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

David P. Mollica appeals from his conviction for first degree murder, contending that the trial judge erred in failing to grant his motion for a new trial. The amended motion alleged newly discovered evidence in the form of recanted testimony by the sole, material prosecution witness. We hold that the denial of appellant's motion for new trial was proper and therefore affirm the final order.

Mollica and co-defendant Robert Ogden were convicted of the first degree murder *1023 of Donald Mills. A third defendant, Daniel Fortune, Sr., pled guilty to the same charge and testified against Mollica and Ogden at their trial in April, 1978. Fortune was the only eyewitness to the crime, and the trial court summarized his testimony as follows:

Mr. Fortune testified that robbery was the only motive for the murder. He also testified that Mr. Ogden suggested to him in the men's room at the Interstate Lounge in Tampa that they rob Donald Mills. Mr. Fortune testified that Mr. Mollica tacitly agreed to the robbery while sitting at a table in the Interstate Lounge in Tampa just a few minutes after his initial conversation about the robbery with Mr. Ogden. He testified that Mr. Ogden then drove the party in Mr. Ogden's car north on Interstate 75 into Pasco County on the pretext of looking for a bottle club. Mr. Ogden carefully located a secluded spot in the orange grove in Pasco County to set the stage for the robbery. According to his testimony, on the trip into Pasco County Mr. Ogden was driving the automobile, Mr. Fortune was sitting in the front passenger seat with Mr. Mollica directly behind him, and Mr. Mills in the left rear seat. Mr. Fortune testified that during the trip to the site of the murder that Mr. Mollica quietly passed Mr. Fortune's knife to him from the back seat. Mr. Fortune testified that before leaving the Interstate Lounge, but while not in the company of Mr. Mills, they discussed and organized the location of the knives to be used as implements to effect the robbery of Mr. Mills.
Mr. Fortune further testified that after he and perhaps Mr. Mollica had stabbed Mr. Mills numerous times and had incapacitated him, if not killed him, that they then dragged Mr. Mills some distance into the orange grove where Mr. Ogden went through his pockets removing his wallet, money, and jewelry.

On May 27, 1978, Fortune gave a written statement to Mollica's attorney recanting the substance of his trial testimony and exonerating Mollica and Ogden. Subsequently, Fortune wrote to an assistant state attorney recanting his written statement of May 27 and reaffirming his trial testimony. On June 15, Fortune gave a deposition under oath in which he again recanted his trial testimony. He stated at that time that he had implicated appellant at trial because he thought Mollica and Ogden had "ratted" on him at the initial police interrogation.

At the hearing on appellant's motion for new trial, Fortune denied the truth of his statements on May 27 and June 15 and reaffirmed his trial testimony with one exception. He stated that the victim, Donald Mills, had mentioned having sexual relations with Fortune's wife. This remark was made just prior to Mills' death. At trial, Fortune had denied that Mills made such a statement or that it was a motive for the killing. He also denied at trial that he told a cellmate, Ronnie Holly, that at least part of the reason he killed Mills was that Mills had been intimate with Fortune's wife. However, at the motion hearing, Fortune stated that he did not remember whether he had made that statement to Holly. Fortune claimed that his life had been threatened if he refused to recant his incriminating trial testimony. He further stated that if the case were tried again, he would reaffirm his original testimony except for the added element that the victim made a remark about previous relations with Fortune's wife.

The order denying motion for a new trial concluded with the following statement:

This court then finds that even if a new trial were granted, that testimony of the witness, Daniel C. Fortune, Sr., would not be changed sufficiently to render probable a different verdict as to David P. Mollica or Robert G. Ogden, nor would a change in his testimony at the first trial so as to make it conform with what he now admits to be the truth would have made any difference in that verdict as to David P. Mollica or Robert G. Ogden.

On this appeal appellant relies primarily on two earlier cases of this court. In O'Brien v. State, 206 So.2d 217 (Fla. 2d DCA 1968), the only witness for the prosecution *1024 who had implicated the defendant recanted his trial testimony following conviction. Later upon interrogation by the state attorney he reasserted the truth of his trial testimony. At the hearing on the motion for new trial he also reaffirmed his trial testimony but admitted that at times he had lied to everyone involved in the proceeding including the court. The trial court denied the motion for new trial. On appeal this court concluded that it was impossible for the trial judge to distinguish the witness' true statements from those that were false and held on grounds of fairness that the defendant should be granted a new trial.

In Solis v. State, 262 So.2d 9 (Fla. 2d DCA 1972), the defendant was convicted for unlawfully assaulting his eleven year old daughter while attempting a sexual act upon her. On a motion for new trial the daughter, who was the sole material prosecution witness, testified that she had lied at the trial. However, the trial judge concluded that her recanting testimony constituted a lie and denied the motion. In reversing the conviction and ordering a new trial, this court cited O'Brien and said:

[W]e are of the view that it is an abuse of discretion to deny a motion for new trial, which is a direct attack, when it is apparent to the trial judge at a hearing thereon that the sole material prosecution witness told under oath two conflicting stories relating to guilt, one at trial and the other thereafter. It is not within the province of the trial judge at that juncture to determine on which of the two occasions the witness was telling the truth. To do so would be preempting the function of a trial jury. Stated otherwise, the controlling point is that it cannot be said, as a matter of law, that a jury had to believe the first testimony and could not, as the trial judge undertook to do, believe the second if it were before them, or consider it at all as it might bear on a possible reasonable doubt concerning the truth of the first.

262 So.2d at 10-11 (footnotes omitted).

Thus it appears that in O'Brien and Solis we have adopted a rule which provides that where the sole material prosecution witness later gives a statement in conflict with his trial testimony, the trial court has no discretion in determining when the witness is telling the truth and must grant a motion for new trial. In so doing we may have adopted a rule unique to American jurisprudence. Certainly it flies in the face of how most other courts view recanting testimony. In an annotation at 158 A.L.R.

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Bluebook (online)
374 So. 2d 1022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mollica-v-state-fladistctapp-1979.