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Leslie's Ab Template IN THE SUPREME COURT OF FLORIDA CASE NO.: SC00-247 JEFFREY LEE WEAVER, Appellant/Cross-Appellee, VS. STATE OF FLORIDA, Appellee/Cross-Appellant. ************************************************************** *** ON APPEAL FROM THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA, (Criminal Division) ************************************************************** *** AMENDED ANSWER BRIEF OF APPELLEE INITIAL BRIEF OF CROSS-APPELLANT CHARLES J. CRIST, JR. Attorney General Tallahassee, Florida Leslie T. Campbell Assistant Attorney General Florida Bar No.: 0066631 Debra Rescigno Assistant Attorney General Florida Bar No.: 0836907 1515 North Flagler Drive 9th Floor West Palm Beach, FL 33401 Telephone: (561) 837-5000 Facsimile: (561) 837-5108 Counsel for Appellee/Cross-Appellant TABLE OF CONTENTS TABLE OF CONTENTS ..................... i AUTHORITIES CITED .................... iii PRELIMINARY STATEMENT ................... 1 STATEMENT OF THE CASE AND FACTS .............. 1 SUMMARY OF THE ARGUMENT .................. 7 ARGUMENT ......................... 9 POINT I THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DISCHARGING WEAVER’S FIRST COUNSEL, HILLIARD MOLDOF (restated). ............... 9 POINT II THE COURT’S INQUIRY UNDER NELSON AND FARETTA WAS PROPER (restated). ............... 22 POINT III THERE WAS NO ABUSE OF DISCRETION IN REQUIRING WEAVER TO WEAR A STUN BELT (restated). ..... 30 POINT IV THE COURT DID NOT ABUSE ITS DISCRETION BY REFUSING TO GRANT A CONTINUANCE. (Restated). .. 34 POINT V WEAVER’S REQUEST FOR DISQUALIFICATION OF THE TRIAL COURT WAS DENIED CORRECTLY (restated) ... 40 POINT VI THE REQUEST TO DISQUALIFY THE STATE ATTORNEY’S OFFICE WAS DENIED CORRECTLY (restated) ..... 47 POINT VII PREVENTING ADMISSION OF ALLEGED MEDICAL NEGLIGENCE EVIDENCE WAS PROPER (restated) .... 49 POINT VIII CONDUCTING A JURY VIEW WAS PROPER (restated) ................. 57 i POINT IX WEAVER’S STATEMENTS OF THE BOOKING OFFICER WERE EXCLUDED PROPERLY AS HEARSAY (restated) .... 60 POINT X WEAVER’S CONFESSION WAS ADMITTED PROPERLY (restated) ................... 64 POINT XI PENEY’S DYING DECLARATION WAS ADMITTED PROPERLY (restated) ................... 69 POINT XII EVIDENCE OF AN ATTEMPTED ARMED BURGLARY OF A CONVEYANCE WAS ADMITTED PROPERLY (restated) ... 72 POINT XIII WEAVER’S REQUEST FOR A NEW TRIAL WAS DENIED PROPERLY (restated) ............... 77 POINT XIV WEAVER’S OVERRIDE DEATH SENTENCE IS PROPER. (restated) ................... 80 INITIAL BRIEF OF APPELLEE/CROSS-APPELLANT ......... 99 ISSUE I THE SEVERING OF COUNT V (ATTEMPTED ARMED BURGLARY OF A CONVEYANCE) AND PRECLUDING THE STATE FROM ARGUING FELONY MURDER AS A THEORY OF PROSECUTION WAS ERRONEOUS. ................... 99 ISSUE II THE TRIAL COURT ERRED IN EXCLUDING THE AUDIO TAPES MADE OF WEAVER’S CONFESSION .......... 104 ISSUE III IT WAS ERROR TO EXCLUDE GUNS, AMMUNITION, AND RELATED EVIDENCE FOUND IN WEAVER’S AUTOMOBILE ..... 108 CONCLUSION ....................... 110 CERTIFICATE OF SERVICE ................. 110 ii CERTIFICATE OF COMPLIANCE ................ 110 iii AUTHORITIES CITED Cases Cited Adler v. Seligman of Florida, Inc., 492 So.2d 730 (Fla. 4th DCA 1986) ........................... 92 Anderson v. State, 841 So.2d 390 (Fla. 2003) ..... 73, 95 Apprendi v. New Jersey, 430 U.S. 466 (2000) ........ 99 Arbelaez v. State, 775 So. 2d 909 (Fla. 2000) ..... 41, 46 Armstrong v. State, 642 So.2d 730 (Fla.1994) ....... 93 Ashley v. State, 28 Fla. L. Weekly S18 (Fla. 2003) ... 101 Barker v. Wingo, 407 U.S. 514 (1972) ........... 11 Barns v. State, 528 So.2d 69 (Fla. 4th DCA 1988) ..... 53 Bates v. State, 750 So. 2d 6 (Fla. 1999) ......... 94 Bernie v. State, 524 So.2d 988 (Fla. 1988) ....... 106 Berriel v. State, 233 So.2d 163 (Fla. 4th DCA 1970) .... 38 Bogle v. State, 655 So.2d 1103 (Fla. 1995) ........ 48 Bond v. United States, 529 U.S. 334 (2000) ....... 106 Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002) ....... 94 Bottoson v. State, 813 So. 2d 31 (Fla. 2002) ....... 95 Brown v. Moore, 800 So. 2d 223 (Fla. 2001) ........ 95 Brown v. State, 349 So. 2d 1196 (Fla. 4th DCA 1977) ... 106 Brunner v. State, 683 So.2d 1129 (Fla. 4th DCA 1996) .. 100 Bruno v. Moore, 838 So. 2d 485 (Fla. 2002) ........ 95 Bryan v. State, 533 So.2d 774 (Fla. 1988) ........ 109 iv Bryant v. State, 785 So. 2d 422 (Fla. 2001) ...... 30, 32 Buenaono v. State, 527 So.2d 194 (Fla. 1994) ....... 56 Bundy v. State, 471 So.2d 9 (Fla. 1985) .......... 57 Bundy v. Rudd, 366 So. 2d 440 (Fla. 1978) ....... 73, 95 Bundy v. State, 455 So.2d 330 (Fla. 1984), cert. denied, 476 U.S. 1109 (1986) ..................... 43 Burke v. State, 732 So. 2d 1194 (Fla. 4th DCA 1999) .... 43 Burns v. State, 699 So.2d 646 (Fla. 1997) ......... 93 Butler v. State, 842 So. 2d 817, 834 (Fla. 2003) ..... 95 Butts v. State, 733 So.2d 1097 (Fla. 1st DCA 1999) .... 55 Campbell v. State, 227 So.2d 873 (Fla. 1969) ...... 102 Campbell v. State, 571 So. 2d 415 (Fla. 1990) ..... 82, 84 Cantu-Tzin v. Johnson, 162 F.3d 295 (5th Cir. 1998) .... 9 Caruso v. State, 645 So.2d 389 (Fla. 1994) ...... 91, 92 Chandler v. Dugger, 634 So.2d 1066 (Fla. 1994) ...... 78 Chandler v. State, 28 Fla. L. Weekly, s329 (Fla. April 17, 2003) .............................. 95 Chatmon v. State, 738 So. 2d 970 (Fla. 2d DCA 1999) .... 77 Christopher v. State, 583 So.2d 642 (Fla. 1991) ...... 62 Cole v. State, 701 So.2d 845 (Fla. 1997) ......... 50 Colorado v. Connelly, 479 U.S. 157 (1986) ......... 65 Conahan v. State, 28 Fla. L. Weekly S70a (Fla. January 16, 2003) .............................. 95 Connor v. State, 803 So.2d 598 (Fla. 2001) ........ 64 Consalvo v. State, 697 So.2d 805 (Fla. 1996) ....... 74 v Coolen v. State, 696 So. 2d 738, 741 (Fla. 1997) ... 73, 74 Cooper v. Crosby, slip op. case no. SC02-623 (Fla. June 26, 2003) .............................. 81 Correll v. Dugger, 558 So. 2d 422 (Fla. 1990) ....... 31 Correll v. State, 698 So.2d 522 (Fla. 1997) ........ 43 Cotton v. State, 763 So.2d 437 (Fla. 4th DCA 2000) .... 62 Cox v. State, 819 So. 2d 705 (Fla. 2002) ....... 95, 96 Damren v. State, 696 So.2d 709 (Fla.1997) ......... 73 DeConingh v. State, 433 So.2d 501 (Fla. 1983) ....... 64 Derrick v. State, 581 So. 2d 31 (Fla. 1991) ........ 30 DeStefano v. Woods, 392 U.S. 631 (1968) .......... 94 Diaz v. State, 513 So. 2d 1045 (Fla. 1987), cert. denied, 484 U.S. 1079 (1988) ..................... 32 Donohue v. State, 801 So. 2d 124 (Fla. 4th DCA 2001), rev. denied, 821 So. 2d 301 (Fla. 2002) ...... 50, 52, 54-56 Doorbal v. State, 837 So.2d 940 (Fla. 2003) ...... 95, 96 Dowell v. State, 516 So. 2d 271 (Fla. 4th DCA 1987) ... 109 Downs v. Moore, 801 So.2d 906 (Fla. 2001) ......... 48 Downs v. State, 740 So.2d 506 (Fla. 1999) ......... 78 Duest v. State, SC00-2366 (June 26, 2003) ......... 95 Duke v. State, 2003 WL 1406536 (Ala. March 21, 2003) ... 98 Ellis v. State, 622 So.2d 991 (Fla. 1993) ........ 100 Epsey v. State, 407 So. 2d 300 (Fla. 4th DCA 1981) ... 72 vi Erickson v. State, 565 So.2d 328, 333 (Fla. 4th DCA 1990) . 73 Evans v. State, 838 So.2d 1090 (Fla. 2002) ...... 62, 79 Ex parte Hodges, 2003 WL 1145451 (Ala. March 14, 2003) .. 98 Ex parte Waldrop, 2002 WL31630710 (Ala. Nov. 22, 2002) .. 98 Faretta v. California, 422 U.S. 806 (1975) 22, 24, 27, 28, 36 Farina v. State, 679 So.2d 1151 (Fla. 1996), receded from on other grounds, Franqui v. State, 699 So.2d 1312 (Fla. 1997)48, 49 Fasig v. Fasig, 830 So.2d 839 (Fla. 2d DCA 2002) ..... 40 Fead v. State, 512 So.2d 176 (Fla. 1987) ....... 91, 92 Ferguson v. State, 789 So. 2d 306 (Fla. 2001) ....... 94 Ferrell v. State, 686 So.2d 1324 (Fla. 1996) ....... 73 Finkelstein v. State, 574 So.2d 1164 (Fla. 4th DCA 1991) 9, 17, 20, 21 Fischer v. Knuck, 497 So. 2d 240 (Fla. 1986) ....... 41 Fotopoulos v. State, 838 So. 2d 1122 (Fla. 2002) ..... 95 Franqui v. State, 804 So.2d 1185 (Fla. July 3, 2001) ... 93 Fuller v. Wainwright, 268 So.2d 431 (Fla. 4th DCA 1972) 34, 39 Garden v. State, 815 A.2d 327 (Del. Jan. 24, 2003) .... 99 Geralds v. State, 601 So. 2d 1157 (Fla. 1992) ....... 84 Geralds v. State, 601 So.2d 1157 (Fla. 1992) ....... 84 Glasserman v. State, 590 So. 2d 17 (Fla. 4th DCA 1991) .. 40 Godinez v. Moran, 509 U.S. 389 (1993) ........... 27 Gonzalez v. State, 745 So. 2d 542 (Fla. 4th DCA 1999) ... 77 Gonzalez v. State, 786 So.2d 559 (Fla. 2001) ....... 93 vii Gore v. State, 784 So. 2d 418 (Fla. 2001) ......... 92 Green v. State, 706 So.2d 884 (Fla. 4th DCA 1998) ..... 80 Griffin v. State, 639 So.2d 966 (Fla. 1994) ..... 73, 102 Grim v. State, 841 So. 2d 455 (Fla. 2003) ....... 61, 95 Hallman v. State, 371 So.2d 482 (Fla. 1979), abrogated on other grounds, Jones v. State, 591 So.2d 911 (Fla. 1991) 50, 53, 55 Hardwick v. State, 521 So.2d 1071 (Fla. 1988) ..... 24, 27 Hardy v. State, 716 So.2d 761 (Fla. 1998) ......... 91 Harling v. U.S., 387 A.2d 1101 (D.C. App. 1978) ...... 9 Harling v. U.S., 387 A.2d 1101 (D.C. App. 1978) ...... 21 Harrell v. Israel, 672 F.2d 632 (7th Cir. 1992) .... 31, 32 Harris v. Alabama, 513 U.S. 504 (1995) .......... 97 Harris v. State, 177 So. 187 (Fla. 1937) ........ 109 Hayes v. State, 686 So. 2d 694 (Fla. 4th DCA 1996), rev. dismissed, 691 So. 2d 1081 (Fla. 1997) .......... 41 Heath v. State, 648 So. 2d 660 (Fla. 1994) ........ 72 Henderson v. State, 463 So.2d 196 (Fla.), cert. denied, 473 U.S. 916 (1985) ...................... 60, 71 Henry v. State, 649 So. 2d 1361 (Fla. 1995), cert. denied, 116 S. Ct. 101, dismissed, 691 So. 2d 1081 (Fla. 1997) . 74 Henry v. State, 649 So.2d 1361 (Fla.
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