Thompson v. State

615 So. 2d 737, 1993 WL 40431
CourtDistrict Court of Appeal of Florida
DecidedFebruary 19, 1993
Docket90-1107, 90-1106
StatusPublished
Cited by9 cases

This text of 615 So. 2d 737 (Thompson 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
Thompson v. State, 615 So. 2d 737, 1993 WL 40431 (Fla. Ct. App. 1993).

Opinion

615 So.2d 737 (1993)

Michael Lee THOMPSON, Appellant,
v.
STATE of Florida, Appellee.
Michael Earl Staton, Appellant,
v.
State of Florida, Appellee.

Nos. 90-1107, 90-1106.

District Court of Appeal of Florida, First District.

February 19, 1993.

*739 Jefferson W. Morrow, Jacksonville, for appellant Thompson.

Clyde M. Collins, Jr., Jacksonville, for appellant Staton.

Robert A. Butterworth, Atty. Gen., Gypsy Bailey, Asst. Atty. Gen., Tallahassee, for appellee.

ON MOTION FOR REHEARING

ERVIN, Judge.

Michael Lee Thompson and Michael Earl Staton, appellants, appeal their convictions on nine counts each of armed sexual battery. Staton also appeals his nine consecutive life sentences. Although appellants' cases were not consolidated below, but were instead tried before two juries,[1] we consolidated the cases for oral argument and for this opinion, because the facts and many of the issues overlap.

Both appellants assert that the court erred in denying their individual motions to sever their cases, in admitting DNA evidence and in denying their individual motions for discharge for violations of their right to a speedy trial. In addition, Thompson individually contends that the court erred in admitting incriminating statements he made to a mental health worker, denying his motion for continuance, permitting his in-court identification by the victims, admitting evidence of a previous conviction for armed robbery, and permitting rebuttal witnesses to testify for the state without making a proper inquiry into possible discovery violations. Staton contends the court erred in admitting double hearsay of codefendant Thompson which implicated Staton, using dual juries, departing from the sentencing guidelines, sentencing Staton to nine consecutive rather than concurrent sentences, and in scoring excessive points for victim injury. We affirm without discussion the use of dual juries,[2] and affirm the court's denials of appellants' motions for discharge for the reasons stated below. We nevertheless reverse appellants' convictions and remand for new trials based upon the court's erroneous admission of double hearsay before the Staton jury, the erroneous admission of Thompson's previous conviction for armed robbery, and the failure to hold appropriate hearings regarding the state's rebuttal witnesses against Thompson. We do not reach any of the remaining issues.

The two victims, a mother and her 15-year-old daughter, lived in the Raintree Subdivision in Mandarin, near Jacksonville. On November 25, 1984, at approximately 3:15 a.m., two men armed with knives and wearing stocking masks and gloves broke into their home, demanded money, and each repeatedly sexually assaulted both women orally and vaginally. A few days following the assault, the mother selected a photograph of an individual later identified as Larry Lee Pickett from a photographic spread. The mother also participated in a voice identification in which she tentatively identified the voice of Doyle Glass, a public *740 defender, as one of her assailants. She later identified Thompson in a physical lineup in April 1985. At trial, the mother identified Thompson as the person whom she had recognized in the lineup. The daughter also identified Larry Pickett from the police photospread. In April 1985, the daughter observed a physical lineup of six individuals and then identified Thompson. Neither mother nor daughter was asked to identify co-defendant Staton in a lineup or photospread.

FDLE forensic pathologist James Pollick testified as a forensic serologist, stating that he had stored in a freezer for five years cuttings taken from the crime scene from a sheet, robe, and bedspread, on which he found semen and seminal staining. After the defendants' arrests in May 1989, the samples were transported to Maryland for deoxyribonucleic acid (DNA) examination. On cross-examination, Dr. Pollick admitted that this evidence could not be submitted to the FBI lab for DNA testing, because the FBI considered the samples to be too old.

Dr. Pollick testified that he tested Larry Lee Pickett's blood, saliva, pubic hair, and head hair, and confirmed the presence of PDM enzyme 2-1, which was Pickett's blood enzyme type, in two of the four semen stains he examined from the crime scene. He said it would not have been possible for Thompson, Staton, or either of the victims to have been responsible for the PDM 2-1 found in the semen stains. The court sustained the state's objection to cross-examination as to Larry Lee Pickett's blood, based on the absence of a proper predicate.

Nancy Thompson, Michael Thompson's wife, presented evidence of an alibi on behalf of Thompson, stating that she was dating Thompson at the time of the rapes, and that Thompson was with her until long after midnight on the night of November 24, 1984.

Because we do not reach appellants' challenges to the DNA evidence, we do not consider it necessary to summarize such evidence in this opinion. Suffice it to say that three witnesses were qualified as experts in the area of DNA profiling, and testified that statistically significant matches were found between DNA banding patterns in sperm taken from the cuttings labeled "[daughter's] bed" and "[mother's] robe," with DNA banding patterns from the blood labeled Michael Thompson and Michael Staton. One of the witnesses also acknowledged that an unidentified stain of DNA from the material labeled "[daughter's] bed" did not match either Thompson's or Staton's DNA.

A mental health counselor, Thomas Meade, testified that Thompson met with him in 1989 and admitted that he and Michael Staton had raped a mother and daughter in 1984. Detective Ray Myer testified that Meade informed him of the meetings, and that he thereafter arrested Thompson and Staton. This evidence is discussed more fully infra.

The juries found Thompson and Staton guilty of nine counts of armed sexual battery. Each was sentenced to nine consecutive life sentences.

I. MOTIONS FOR DISCHARGE

THOMPSON

Thompson was initially charged with sexual battery on May 9, 1989, and was returned to Florida from another jurisdiction on May 31, 1989. The 175-day speedy trial period under Florida Rule of Criminal Procedure 3.191 commences upon custody within the state of Florida after being charged with a crime. Thompson filed a motion for discharge on January 19, 1990, 203 days after he was returned to Florida, which was denied. He now claims the trial court erred in denying this motion. Thompson ignores, however, the significance of his motion for continuance filed July 24, 1989, submitted on the ground that his new attorney had just been appointed and needed more time to prepare for trial. The motion was granted. "[W]hen a defendant requests a continuance prior to the expiration of the applicable speedy trial time period for the crime with which he is charged, the defendant waives his speedy trial right as to all charges which emanate *741 from the same criminal episode." Stewart v. State, 491 So.2d 271, 272 (Fla. 1986). Accord Beverly v. State, 516 So.2d 30 (Fla. 1st DCA 1987); Birken v. Scheer, 543 So.2d 330 (Fla. 4th DCA), review denied, 553 So.2d 1166 (Fla. 1989).

The speedy trial requirement is reinstated upon the filing of a motion for discharge. State v. McCrery, 429 So.2d 739, 741 (Fla. 1st DCA), review denied, 438 So.2d 833 (Fla. 1983). Rule 3.191(d)(3) provides that when a court denies a motion for discharge based upon delay caused by the defendant, e.g.,

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Bluebook (online)
615 So. 2d 737, 1993 WL 40431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-state-fladistctapp-1993.