Peavy v. State

766 So. 2d 1120, 2000 Fla. App. LEXIS 10668, 2000 WL 1162042
District Court of Appeal of Florida·Decided August 18, 2000·No. No. 2D99-860·Published·Cited by 1 cases

Opinion

CAMPBELL, Acting Chief Judge.

Appellant, Grover Wayne Peavy, challenges his conviction and sentence for the first-degree murder of his wife, Catherine Peavy. We affirm.

It is uncontroverted that Mr. Peavy killed Mrs. Peavy by stabbing her to death on August 19, 1997, outside her workplace in Bartow, Florida. Mr. and Mrs. Peavy had been married approximately four years.

Mr. Peavy and his partner, Terry So-wards, ran a scrap metal business in Lake City, Florida, nearly 200 miles from Bar-tow. On the day the incident occurred, Mr. Sowards knew of no business Mr. Peavy had in Bartow, and in fact, the two men had planned to go to Georgia to obtain scrap metal for their business on that day. Nevertheless, on August 19, 1997, Mr. Peavy drove from Lake City to Mrs. Peavy’s office located at the Bartow Memorial Hospital Medical Center and confronted her outside the complex during her noon break. Several witnesses heard Mrs. Peavy’s screams for help. One witness testified that Mr. Peavy picked Mrs. Peavy up and threw her against a wall. Another witness saw Mr. Peavy kneeling over Mrs. Peavy while she was screaming and trying to protect herself. At least six witnesses testified to observing Mr. Peavy stab his wife with a knife several times. One witness testified that during the stabbing, Mr. Peavy called Mrs. Peavy a “bitch” and a “slut” and said, “you deserve to die.” On[1122]*1122lookers rushed to the scene and two men yelled for Mr. Peavy to drop the knife. Three witnesses testified that Mr. Peavy responded by asking, “you want some of this,” while holding the knife in his hand. Shortly thereafter, Mr. Peavy released the knife to one of the witnesses.

The knife had a six-inch blade and was alternatively described as a “butcher knife” or a “fillet-type knife.” The medical examiner testified that Mrs. Peavy sustained nine knife wounds, at least two of which were fatal; one to her left breast and the other to her liver and diaphragm. Mr. Peavy was arrested at the scene by responding Bartow Police Department officers.

Mr. Peavy argues in this appeal that the evidence was insufficient to establish the premeditation element of first-degree murder. We reject that argument as being without merit.

Mr. Peavy next argues that the trial judge erred in failing to declare a mistrial because an answer by Bartow Police Detective Hunt to cross-examination by Mr. Peavy’s counsel was an intentional comment on Mr. Peavy’s right to remain silent. While we are not convinced that Detective Hunt’s answer to defense counsel’s question was completely unresponsive, we are convinced that even if it were unresponsive, it was unintentional and no harm occurred. The trial judge should be commended for alertly recognizing a potential problem and immediately acting to diffuse the situation. On the day Detective Hunt testified, he had been on duty without sleep the night before. On cross-examination, Detective Hunt was questioned by defense counsel regarding photographs of Mr. Peavy that he had taken at the Bartow Police Department as follows:

Q: Okay. And what I’d like to do is draw your attention to your activities in the case later in the day back at the police station, the photographs.
A: Right.
Q: Was that at about 1410 hours, about 2:10 in the afternoon?
A: Yes sir. Approximately 2:10 according to my report.
Q: And basically as far as Mr. Peavy’s facial expression at that time he maintained a blank stare throughout the photographs; is that right?
A: Yes sir. Mr. Peavy never made a statement to me at any point and he never showed any type of—
THE COURT: Wait. Wait now. We need to be sure he asks you a question before you tell us something. Okay.
DEFENSE COUNSEL: May we approach the bench, Your Honor?
THE COURT: Sure. Is now a good time for them to take a break, Mr. Trogolo?
DEFENSE COUNSEL: Yes sir.
THE COURT: Would you take the jury out.
THE BAILIFF: All rise, please.

(The jury was excused from the courtroom 3:00 p.m.)

THE COURT: My inclination is to ask this witness to go home and go to bed, get some sleep, come back tomorrow after he is well rested and testify. Disagree either one of you?
PROSECUTOR: Depending on the length of the cross. I’m not sure whether Mr. Trogolo is at on his cross-examination.
DEFENSE COUNSEL: I have some more cross-examination.
At this time I, you know, have to object to what he said. It was unresponsive. And move to strike it and move for mistrial.
THE COURT: It was unresponsive and the motion to strike is granted and the motion for mistrial is denied. And I would like to send him home to get some rest and he can come back and finish up when he has not — has not been up all night.
PROSECUTOR: We have no problem, Judge.
THE COURT: Any problem with that?
[1123]*1123DEFENSE COUNSEL: I don’t have any problem with it.
THE COURT: That means I don’t want you to work tonight.
THE WITNESS: I’m not scheduled tonight.
THE COURT: Okay. Go home. Don’t talk to anybody. You’re on the witness stand. Don’t talk about what we did today. Go to bed and come back tomorrow. You’re first. Okay?
THE WITNESS: What time do I need to be here?
THE COURT: 9:00 o’clock.
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THE BAILIFF: All rise, please.

(The jury returned to the courtroom 3:30 p.m.)

THE BAILIFF: You may be seated.
THE COURT: A Motion to Strike was made and granted. And you’re directed to disregard the testimony that the officer who was on the stand before him gave right before you left. If you don’t recall what it was that’s okay too. That’s the idea. Don’t let it figure into your verdict, please.
PROSECUTOR: For the record, we are speaking of the last question, Your Hon- or.

A subsequent witness was Bartow Police Officer Thomas Andrews, who responded to the scene of the crime. The following took place on direct examination of Officer Andrews without objection by defense counsel:

Q: Was the defendant placed in handcuffs?
A: Yes sir.
Q: Who did that?
A: I did.
Q: Did you smell any alcohol on the defendant’s body?
A: No sir.
Q: On his breath?
A: No sir. He never spoke.

On cross-examination, Officer Andrews was asked and he answered as follows:

Q: Sir, is it correct when you first saw Mr. Peavy he was being patted down by Detective Matos?

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Peavy v. State, 766 So. 2d 1120, 2000 Fla. App. LEXIS 10668, 2000 WL 1162042 (Fla. Ct. App. 2000).

766 So. 2d 1120 (Peavy v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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