Smith v. State

641 So. 2d 1319, 1994 WL 245755
Supreme Court of Florida·Decided June 9, 1994·No. 76491·Published·Cited by 22 cases

Opinion

641 So.2d 1319 (1994)

Derrick Tyrone SMITH, Appellant,
v.
STATE of Florida, Appellee.

No. 76491.

Supreme Court of Florida.

June 9, 1994.
Rehearing Denied September 12, 1994.

*1320 James Marion Moorman, Public Defender and Paul C. Helm, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen. and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Derrick Tyrone Smith appeals his conviction of first-degree murder and his sentence of death for the murder of a cab driver in St. Petersburg. We have jurisdiction based on article V, section 3(b)(1) of the Florida Constitution.

This case is an appeal of Smith's conviction on retrial for the killing of cab driver Jeffrey Songer.[1] On retrial, the jury convicted Smith of first-degree murder and recommended death by a vote of eight to four. The trial judge followed the jury's recommendation and sentenced Smith to death. We affirm both the conviction and the death sentence.

At retrial, the evidence showed that Smith and a friend, Derrick Johnson, planned a robbery. To carry out the plan, Smith called a cab from a restaurant's pay telephone at 12:28 a.m. on March 21, 1983. Smith's fingerprint was later matched with a print found on that phone. Songer picked up Smith and Johnson outside the restaurant, then reported to his dispatcher that he was taking the fares to a nearby residential area. A few minutes later, Songer called in "D-16," which was a coded distress call. The dispatcher called the police and sent another cab driver to assist Songer. The driver found Songer lying face down about seventy feet from his cab, dead of a single shot in the back.

An eyewitness testified that he recognized Smith and Johnson. The witness also testified that he saw Smith aim and fire at Songer as the driver tried to run from the cab. Although authorities never found the murder weapon, several witnesses linked Smith to a .38-caliber pistol. Smith's uncle, with whom Smith had once lived, testified that a .38-caliber pistol was missing from his home. A lead fragment found on the victim matched the lead composition of bullets Smith's uncle obtained when he bought the gun. Other witnesses testified that they saw Smith with a gun during the day before the shooting. Johnson's testimony also placed a gun in Smith's possession.

One witness, a Canadian tourist, testified that Smith robbed his wife and him in their motel room about twelve hours after Songer was killed. The robbery victim's description of Smith's gun resembled the description of the gun Smith used in the shooting; however, it was never established that the gun was the same because the weapon was never found. Smith's fingerprints were found on a suitcase in the motel room, and, after Smith's arrest, police recovered a watch that the robbery victim identified as one Smith took.

Smith did not testify at his retrial. Larry Martin, who had been in the Pinellas County Jail with Johnson, testified that Johnson told him Smith did not shoot the cab driver.

Smith raises five issues that he argues require reversal of both his conviction and death sentence.[2] We disagree.

The first issue is whether the trial court violated Smith's constitutional right to effective assistance of counsel and self-representation by failing to inquire into his letter expressing dissatisfaction with court-appointed counsel. Several months before trial *1321 Richard Sanders, Smith's court-appointed counsel, moved to withdraw because Smith wanted to present testimony that Sanders believed was false.[3] After a hearing, the trial court denied the motion. Neither the trial judge nor Sanders questioned Smith at the hearing, and Smith did not address the court.

On the same day the hearing concluded, however, Smith wrote the trial judge and asked her to "reconsider your decision to deny [Sanders'] motion to withdraw." Smith questioned Sanders' lack of experience in first-degree murder cases and wrote, "I don't want Richard Sanders representing me on this particular case." The trial judge responded by letter and told Smith that any communication with the court must be through his attorney. The record reflects that the trial judge communicated with Smith during the trial, but Smith never raised this issue again. Thus, Sanders continued to represent Smith.

Nonetheless, Smith claims the trial court committed reversible error by not conducting a hearing to determine whether there was reasonable cause to believe that Sanders was not rendering effective counsel and, if not, appointing a substitute. In addition, Smith argues that the trial court should have informed him of his right to self-representation and determined whether he knowingly and intelligently chose to waive his right to counsel. This claim is without merit.

Initially, we find the trial court was not required to conduct a hearing on Sanders' representation. Although Smith's letter raises concerns about Sanders, the letter was, in effect, a motion for rehearing. A trial court must conduct an inquiry only if a defendant questions an attorney's competence. Hardwick v. State, 521 So.2d 1071, 1074-75 (Fla.), cert. denied, 488 U.S. 871, 109 S.Ct. 185, 102 L.Ed.2d 154 (1988). Smith expressed dissatisfaction with Sanders, but did not question his competence.

Further, Smith's letter did not contain an explicit assertion of his right to self-representation, so a Faretta[4] inquiry was not required. Raulerson v. Wainwright, 732 F.2d 803, 808 (11th Cir.), 736 F.2d 1528 (11th Cir.), cert. denied, 469 U.S. 966, 105 S.Ct. 366, 83 L.Ed.2d 302 (1984). Thus, the trial court was not obliged to inform Smith of this right and to determine whether he knowingly and intelligently chose to waive his right to counsel. We find no error on this issue.

The second issue Smith raises is whether the trial court erred in failing to conduct a Richardson[5] hearing before admitting testimony about a defense witness's prior convictions. Larry Martin testified during the guilt phase that Derrick Johnson told him Smith did not shoot the cab driver. When defense counsel asked Martin how many times he had been convicted of a crime, Martin replied, "A couple times, I think. I'm not sure." The prosecutor then requested a bench conference, where he said Martin had eight prior felony convictions and the State planned to use them for impeachment purposes.

Smith asserts that the State violated a discovery rule because it had not previously disclosed the prior convictions. He argues that the trial court was required to conduct a Richardson hearing to determine whether the violation was trivial or substantial and whether the violation affected the defendant's ability to prepare for trial. The trial court found no discovery violation.[6]

We agree that there was no discovery violation. The State is required to produce for discovery the criminal records of any witness the prosecution intends to call at trial. Yanetta v. State, 320 So.2d 23, 24 (Fla. 3d DCA 1975); Comer v. State, 318 So.2d 419, *1322 420 (Fla. 3d DCA 1975). The State has no duty, however, "to actively assist the defense in in

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

Smith v. State, 641 So. 2d 1319, 1994 WL 245755 (Fla. 1994).

641 So. 2d 1319 (Smith v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Mirna Salas Abbott v. State
Court of Appeals of Texas, 2020
Derrick Tyrone Smith v. State of Florida
235 So. 3d 265 (Supreme Court of Florida, 2017)
C.H. v. State
116 So. 3d 629 (District Court of Appeal of Florida, 2013)
Smith v. State
75 So. 3d 205 (Supreme Court of Florida, 2011)
Smith v. Secretary, Dept. of Corrections
572 F.3d 1327 (Eleventh Circuit, 2009)
Stephens v. State
787 So. 2d 747 (Supreme Court of Florida, 2001)
Moore v. State
778 So. 2d 1054 (District Court of Appeal of Florida, 2001)
Knight v. State
770 So. 2d 663 (Supreme Court of Florida, 2000)
Wilson v. State
724 So. 2d 144 (District Court of Appeal of Florida, 1998)
Jimenez v. State
703 So. 2d 437 (Supreme Court of Florida, 1997)
Blanco v. State
706 So. 2d 7 (Supreme Court of Florida, 1997)
Sliney v. State
699 So. 2d 662 (Supreme Court of Florida, 1997)
Franqui v. State
699 So. 2d 1312 (Supreme Court of Florida, 1997)
Lopez v. State
684 So. 2d 342 (District Court of Appeal of Florida, 1996)
State v. Craft
685 So. 2d 1292 (Supreme Court of Florida, 1996)
Thomas v. State
682 So. 2d 221 (District Court of Appeal of Florida, 1996)
Gainer v. State
671 So. 2d 240 (District Court of Appeal of Florida, 1996)
Bodiford v. State
665 So. 2d 315 (District Court of Appeal of Florida, 1995)
Sinclair v. State
657 So. 2d 1138 (Supreme Court of Florida, 1995)