Schwab v. State

636 So. 2d 3, 1994 WL 60867
CourtSupreme Court of Florida
DecidedMarch 3, 1994
Docket80289
StatusPublished
Cited by32 cases

This text of 636 So. 2d 3 (Schwab 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
Schwab v. State, 636 So. 2d 3, 1994 WL 60867 (Fla. 1994).

Opinion

636 So.2d 3 (1994)

Mark D. SCHWAB, Appellant,
v.
STATE of Florida, Appellee.

No. 80289.

Supreme Court of Florida.

March 3, 1994.
Rehearing Denied May 16, 1994.

*4 James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., and Kellie A. Nielan, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Mark Schwab appeals his convictions of first-degree murder, sexual battery of a child, and kidnapping and his sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution, and affirm Schwab's convictions and sentence.

Early in March 1991 Schwab was released from prison after serving three and one-half years of an eight-year sentence for committing sexual battery on a thirteen-year-old boy. In the middle of March a picture of eleven-year-old Junny Rios-Martinez appeared in a local newspaper. Several days later Schwab called the Rios-Martinez home, pretended to be a reporter, and claimed that he wanted to write an article on Junny. Schwab ingratiated himself with the family over the next several weeks, eventually claiming that he could get Junny a contract to represent a surfing company.

After school on April 18, 1991, a classmate saw Junny at a little league ball field and saw him get into a U-haul truck with a tall man. Two days later Schwab was in Ohio and called his aunt. He told her that someone named "Donald" had forced him to kidnap and rape the child or else Donald would kill Schwab's mother. On April 21 the police went to the aunt's home, and, when Schwab called while they were there, she allowed them to record the call. She also gave the officers permission to tap her telephone, and, when Schwab called later that evening, they traced the call and arrested him in a nearby town. Besides the recorded statements to his aunt, Schwab also gave statements to Sergeant Blubaugh, a Cocoa policeman, who flew to Ohio with assistant state attorney Chris White. The day after his arrest, Schwab, Blubaugh, and White flew back to Florida. Back in Brevard County Schwab eventually indicated where the victim's body could be found. The police then found the body in a rural, undeveloped area of the county, stuffed into a footlocker.

The state indicted Schwab for first-degree premeditated murder, sexual battery of a child, and kidnapping. Schwab waived a jury, and, after a week-long trial, the judge convicted him as charged. Following the penalty proceeding, the judge sentenced him to death.

After Schwab indicated he knew where the body was, he said to White: "I know you're a prosecutor, but you're also an attorney. Do you think I'm doing the right thing?" White responded that he thought the victim's parents would appreciate it if *5 Schwab could help find the body. Prior to trial, Schwab filed a motion to recuse the state attorney's office from the case, claiming that White's response constituted legal advice that created a conflict of interest and called into question the integrity of the judicial system. The trial court held a hearing on the motion to recuse and then denied it. Now, Schwab argues that the court erred in denying the motion. We disagree.

A defendant has no constitutional right to consult with a state attorney. Owen v. State, 596 So.2d 985 (Fla.), cert. denied, ___ U.S. ___, 113 S.Ct. 338, 121 L.Ed.2d 255 (1992). Schwab had been given and had waived his Miranda[1] rights several times in Ohio, and he was Mirandized again shortly after the exchange with White. He never, however, asked for an attorney. Schwab was well aware of the adversarial nature of criminal proceedings and knew that White was the state's counsel, not his. In spite of all this, he spoke to White voluntarily. After hearing both sides, the trial court concluded:

From what I heard today and what I've seen in your motion, I can see no legal basis at all or ethical basis to require the State Attorney at this juncture to be disqualified from the prosecution of this case.

We agree, reject the contention that White became Schwab's lawyer, and hold that the trial court did not err in denying the motion to recuse the state attorney's office.

Schwab also claims that his last statement to Sergeant Blubaugh should have been suppressed because his question to White invoked his right to counsel. The statement to White, however, was not a request for counsel. Blubaugh again read Schwab his Miranda rights before taking that last statement, and Schwab waived those rights. The trial court, therefore, did not err in refusing to suppress that statement.

Two months prior to trial someone calling himself "Doug"[2] sent a letter to Brian Onek, the assistant public defender who represented Schwab. The public defender's office turned the letter over to the state, and, on examination, Schwab's fingerprints were found on the letter.[3] The state filed notice that it would call five employees of the public defender's office[4] to testify to the chain of custody of the letter. Onek moved to withdraw as counsel and argued that, due to his relationship with his fellow employees, he would not be able to cross-examine them, thereby denying Schwab the effective assistance of counsel. The court denied the motion, and the state called the witnesses, who testified to their handling of the letter. Onek refused to cross-examine any of the witnesses, but the court questioned two of them.

Rule Regulating The Florida Bar 4-1.7(b) provides in part:

A lawyer shall not represent a client if the lawyer's exercise of independent professional judgment in the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer's own interest.

Moreover, the opportunity to fully and completely cross-examine "critical witnesses is fundamental to a fair trial." Jennings v. State, 413 So.2d 24, 26 (Fla. 1982). These principles occasionally produce a conflict of interest that requires allowing a public defender to withdraw. E.g., Williams v. State, 622 So.2d 490 (Fla. 4th DCA 1993). To mandate withdrawal, however, the prejudice caused by continued representation must be more than de minimis, and the party seeking withdrawal bears the burden of demonstrating that substantial prejudice will result if withdrawal is not allowed. Ray v. Stuckey, *6 491 So.2d 1211 (Fla. 1st DCA 1986); Cazares v. Church of Scientology, 429 So.2d 348 (Fla. 5th DCA), review denied, 438 So.2d 831 (Fla. 1983).

Schwab has not met this burden. The witnesses' testimony went to establish the collateral matter of the letter's chain of custody. The facts establishing that custody had been set out in the motion to withdraw and were not in dispute. The witnesses testified to those facts as admitted, and, therefore, their credibility was not at issue. Any prejudice to Schwab came from the letter itself, not from the public defender's employees explaining their receipt and handling of the letter. Therefore, we find no merit to Schwab's argument that the trial court erred in denying the motion to withdraw.

Schwab moved for judgment of acquittal of the murder, sexual battery, and kidnapping charges, arguing that the state failed to prove the corpus delicti of those crimes independent of his statements. Schwab now argues that the trial court erred in denying those motions. We disagree.

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Bluebook (online)
636 So. 2d 3, 1994 WL 60867, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwab-v-state-fla-1994.