Thompson v. State

648 So. 2d 692, 1994 WL 656643
Supreme Court of Florida·Decided November 23, 1994·No. 81039·Published·Cited by 39 cases

Opinion

648 So.2d 692 (1994)

Charlie THOMPSON, Appellant,
v.
STATE of Florida, Appellee.

No. 81039.

Supreme Court of Florida.

November 23, 1994.
Rehearing Denied January 25, 1995.

*693 James Marion Moorman, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., and Robert J. Krauss and Carol M. Dittmar, Asst. Attys. Gen., Tampa, for appellee.

PER CURIAM.

Charlie Thompson appeals his convictions of two counts of first-degree murder and his two death sentences. We have jurisdiction pursuant to article V, section 3(b)(1), of the Florida Constitution. For the reasons expressed in this opinion, we affirm the convictions and death sentences.

The record reveals the following facts. The appellant, Charlie Thompson, was a groundskeeper at Myrtle Hill Cemetery in Tampa. Although he was a large man, about six feet tall and weighing 220 pounds, Thompson injured his back while digging a grave and began collecting workers' compensation benefits through the cemetery's office. After the workers' compensation benefits ran out, Thompson persisted in his belief that the *694 cemetery owed him $150 more than he had collected. Thompson was fired from his job at the cemetery in July of 1986 for failing to show up for work.

In the early afternoon of August 27, 1986, the bodies of Russell Swack and Nancy Walker were found in a wooded area near the Myrtle Hill Cemetery. Swack was the bookkeeper for the cemetery and Walker was his assistant. A medical examination revealed that Swack had been stabbed nine times and shot once in the face. All of the injuries had been inflicted while Swack was alive. The medical examination of Walker established that she had been shot once in the back of the head. A watch and ring were missing from Swack's body.

One of the managers of the cemetery testified that he had last seen Swack and Walker at about ten o'clock on that same morning and that the victims were speaking with a large unidentified man in the cemetery's business office. The witness also stated that he left the office and that, when he returned about fifteen minutes later, the victims were gone and the office door was locked.

A search of the office revealed that Walker's purse was under her desk and her typewriter was still turned on. In addition, Swack's adding machine was left on and a bookkeeping ledger was on Swack's desk. The last entry in the ledger, dated that same day, was for a check payable to Charlie Thompson in the amount of $1,500.

Several witnesses, including the mother of Thompson's children, testified that Thompson had a watch and a ring in his possession on the afternoon and evening of the crime. The watch and ring were recovered and identified as belonging to Swack. Two days after the crime, Thompson was arrested when an alert car salesman contacted the police after Thompson and three others attempted to purchase a used car with the $1,500 check from Myrtle Hill Cemetery.

At Thompson's trial for the murders, the State presented this and other evidence to the jury, including the testimony of a jailhouse informant who stated that Thompson admitted killing Swack and Walker. Thompson presented no witnesses in his defense. The jury found Thompson guilty of two counts of first-degree murder and two counts of kidnapping. In the penalty phase of the trial, the defense presented two psychologists who testified as to Thompson's mental deficiencies. Thompson's sister also testified to a history of mental illness in the family. After hearing this testimony, the jury recommended the death penalty for each murder by a 7-to-5 vote. The court found the following six aggravating factors: prior felony conviction; murder committed while engaged in a kidnapping; murder committed to avoid arrest; murder committed for pecuniary gain; murder especially heinous, atrocious, or cruel; and murder committed in a cold, calculated, and premeditated manner. The court found that the evidence failed to establish extreme mental or emotional disturbance and substantially impaired capacity, but did give some weight to nonstatutory mitigating factors including chronic mental illness, moderate disturbance, symptoms of mental illness, family background, and mental retardation.

The court sentenced Thompson to death for each murder and to consecutive life sentences for each kidnapping. Thompson appeals seven issues to this Court.

The Guilt Phase

The only guilt phase issue presented by Thompson is whether the trial court erred in denying Thompson's motion for mistrial after a witness for the State responded to defense counsel's questioning with a clearly hearsay-based answer that Thompson alleges was non-responsive. Herman Smith, the grounds supervisor at the cemetery, testified on cross-examination that, although he had not seen Thompson at the cemetery on the day of the murders, his crew members saw Thompson go into the victim's office with a gun. The trial judge immediately sent the jury out of the courtroom and consulted the attorneys. Defense counsel asked for a curative instruction and then, on reflection, expressed doubt concerning the effectiveness of a curative instruction and moved for a mistrial. The judge denied the motion and gave a curative instruction.

Thompson argues that Smith's testimony was both inadmissible hearsay and *695 non-responsive to the questions asked by defense counsel. He also asserts that the curative instruction was ineffective, especially as this was the only eyewitness identification testimony presented. In response, the State admits that Smith's testimony was hearsay; however, the State asserts that the error was "invited" because Smith's hearsay statement was in response to a question asked by defense counsel. We agree with the State. The following exchange took place between the witness and the defense attorney on cross-examination concerning whether the witness saw the defendant at the cemetery on the morning of the murders:

Q. Did you see Mr. Thompson at the cemetery?
A. No. Everybody that appeared there know Mr. Thompson because he was working in my crew at the time.
Q. I'm not arguing with you about that, Mr. Smith, and I don't want you to think that I am. Can you just answer this question for me? On August 27th 1986, did you at any point in time while you were working on that day see Charlie Thompson on the grounds of the Myrtle Hill Cemetery?
A. My crew have told me he was at that time. I got to explain myself.
Q. No, sir. Just tell me this: Did you, sir, see Thompson on August 27th at the cemetery? Did you see him?
A. No, sir, but my crew did. My crew did.
Q. When did your crew see him?
A. I was the foreman out there this particular day. They was there working at the office when they seen Mr. Thompson go in there and carry Mr. Swack and Ms. Nancy. They said he had a gun in his pocket.
THE COURT: Take the jury out.

Although we can sympathize with the defense attorney's frustration in questioning a less than sophisticated witness, it is apparent from the record that this damaging hearsay response was invited by defense counsel's question. We note that the witness had already stated twice that he himself had not seen Thompson when counsel asked the question, "When did your crew see him?" Furthermore, the defense attorney initially told the trial judge that there

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