Thornton v. State

963 So. 2d 804, 2007 WL 2188148
District Court of Appeal of Florida·Decided August 1, 2007·No. 3D05-1892·Published·Cited by 6 cases

Opinion

963 So.2d 804 (2007)

Henry G. THORNTON, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D05-1892.

District Court of Appeal of Florida, Third District.

August 1, 2007.
Rehearing Denied September 11, 2007.

*806 David S. Molansky, for appellant.

Bill McCollum, Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.

Before RAMIREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.

LAGOA, J.

After this court reversed and remanded for a new trial in Thornton v. State, 852 So.2d 911 (Fla. 3d DCA 2003)("Thornton I"), the State tried and convicted the defendant for a second time on the charges of first-degree murder and armed robbery. For the reasons set forth below, we are obliged to reverse the defendant's conviction.

I. FACTUAL HISTORY

In 1998, the defendant, Thornton, along with a co-defendant, was charged with the first-degree murder and armed robbery of Garyn Perriman. Thornton was also charged with unlawful possession of a firearm while engaged in a criminal offense and grand theft of a motor vehicle. After a jury trial, Thornton was convicted of first-degree murder and armed robbery. In Thornton I, we reversed that conviction for two reasons, one of which related to the following question asked by the prosecutor to a state witness, Luis Varnado:

Q. Did Defendant Thornton talk to you about an incident, where something he did by club V.I.P. or near club V.I.P.?
A. No.
Q. Did Mr. Thornton tell you that he had to quote unquote, "Burn a n____r near the V.I.P.?"

Id. at 911. This Court held that, among the several errors which resulted from this statement, was a violation of the rule established in Williams v. State, 110 So.2d 654 (Fla.1959). As we stated:

It is difficult to imagine a more serious violation of the rules of evidence and due process, indeed of the rule of law itself, than this statement. . . . [Because] it was not shown to be related to the crime with which Thornton was charged, the question was in simultaneous violation of several important principles of law. These include: 1. the principle of Williams v. State, 110 So.2d 654 (Fla. 1959), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), which forbids references to alleged prior unrelated offenses purportedly committed by the defendant. . . .

Thornton, 852 So.2d at 911 (footnote omitted). Thus, in Thornton I, we held that any reference to a statement made by Thornton as to any incident near or by the "V.I.P." was improper, as the statement referred to prior unrelated offenses committed by Thornton. See id.

Despite our ruling on this issue in Thornton I, the State successfully introduced testimony regarding the statement in Thornton's retrial. Over defense counsel's objection, the State relied upon the statement in its opening argument.[1] During *807 the trial, defense counsel again objected *808 to Varnado's testimony regarding the statement.[2] The State then proffered Varnado's testimony, and argued that the statement regarding the "V.I.P." was in fact a confession to the charged crime rather than a collateral crime.[3] The trial court ultimately found that the statement "related to" Perriman's murder.[4] As a result, the trial court permitted Varnado to testify regarding the statement.[5] Detective *809 Ford, the lead investigator of the crime, also testified about Thornton's statement to Varnado.[6] The State relied upon the statement in its closing argument, in which it characterized the statement as a "confession,"[7] and again in its rebuttal.[8]

II. ANALYSIS

The doctrine of the law of the case requires that "questions of law actually decided on appeal govern the case in the same court and the trial court, through all subsequent stages of the proceeding." See State v. McBride, 848 So.2d 287, 289 (Fla.2003); Florida Dep't of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001); U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061 (Fla.1983); State, Dep't of Revenue v. Bridger, 935 So.2d 536, 538 (Fla. 3d DCA 2006). This doctrine "is limited to rulings on questions of law actually presented and considered on a former appeal." U.S. Concrete, 437 So.2d at 1063; see also Juliano, 801 So.2d at 106 ("Additionally, the law of the case doctrine may foreclose subsequent consideration of issues implicitly addressed or necessarily considered by the appellate court's decision."). These rulings are then, necessarily, "except in exceptional circumstances, no longer open for discussion or consideration in subsequent proceedings in the case." Greene v. Massey, 384 So.2d 24, 28 (Fla.1980). A trial court, therefore, generally lacks discretion to change the law of the case. Bridger, 935 So.2d at 539. There are two exceptions to the confines of the doctrine: first, a trial court is not bound to follow the prior ruling if the facts upon which the prior ruling was made are no longer the facts of the case; and, second, an appellate court may reconsider and correct an erroneous ruling that has become the law of the case where a manifest injustice would result. See Juliano, 801 So.2d at 106.

In the present case, the doctrine of the law of the case precluded the trial court from finding that Thornton's alleged statement of his actions at the "V.I.P." was *810 a reference to the charged crime. In Thornton I, the State introduced the statement during the attempted impeachment of Varnado and we held that the statement was improper testimony of a collateral bad act as "it was not shown to be related to the crime with which Thornton was charged." Thornton I, 852 So.2d at 911. In the retrial, the State made the same argument that it did in Thornton I, and the trial court concluded that the testimony was admissible because it "related to this incident." Because this issue was actually presented, considered, and ruled upon by this Court in Thornton I, the trial court's ruling on this issue was error. Additionally, given the State's argument in closing that the "confession" meant that "this is not a close case," the error cannot be considered harmless. See Valley v. State, 860 So.2d 464, 469 (Fla. 4th DCA 2003).

At oral argument, in an attempt to invoke one of the exceptions to the law of the case doctrine, the State argued that the facts in the retrial were different from those in Thornton I, and the trial court therefore could consider the issue of the admissibility of the statement. Specifically, the State asserted that, unlike Thornton I, in the retrial Detective Ford testified that his investigation revealed there had been no incidents involving a shooting at or near the "V.I.P.".[9] Initially, we note that this argument was not made to the trial court and therefore not preserved. Indeed, the State did not make this argument in its answer brief, but instead first raised it at oral argument.

Even assuming that this issue was preserved, which it was not, we find unconvincing the State's argument that sufficient new fa

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Thornton v. State, 963 So. 2d 804, 2007 WL 2188148 (Fla. Ct. App. 2007).

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