Rigterink v. State

66 So.3d 866

Thomas William RIGTERINK, Appellant,

v.STATE of Florida, Appellee.

No. SC05–2162.

Supreme Court of Florida.

June 16, 2011.

David R. Parry of Bauer, Crider, Pellegrino, and Parry, Clearwater, FL, for Appellant.Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Scott A. Browne, Assistant Attorney General, Tampa, FL, for Appellee.PER CURIAM.

Thomas William Rigterink appeals his convictions for first-degree murder and sentences of death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons provided in our analysis, we affirm Rigterink's convictions of first-degree murder and sentences of death.

The most critical and dispositive issue in this case involves the denial of a motion to suppress statements that Rigterink contends were improperly obtained after police administered a Miranda¹ warning, which Rigterink asserts was materially deficient. Rigterink contends that the police, before beginning a custodial interrogation, failed to properly advise him that he had the right to counsel both before and during the custodial interrogation. See Rigterink v. State ( Rigterink I ), 2 So.3d 221, 234 (Fla.2009). Although this Court previously reversed his conviction in Rigterink v. State ( Rigterink I ), 2 So.3d 221, 254–55 (Fla.2009), the case upon which this Court relied on as controlling— State v. Powell ( Powell I ), 998 So.2d 531 (Fla.2008)—was overturned by the United States Supreme Court in Florida v. Powell ( Powell II ), ––– U.S. ––––, 130 S.Ct. 1195, 1206, 175 L.Ed.2d 1009 (2010). Thereafter, the United States Supreme Court granted certiorari review of Rigterink I, vacated the judgment in that case, and remanded for further consideration in light of Powell II. See Florida v. Rigterink ( Rigterink II ), ––– U.S. ––––, 130 S.Ct. 1235, 176 L.Ed.2d 175 (2010). That remand is now the subject of this appeal.

In light of Powell II, we reverse our prior decision in Rigterink I and affirm Rigterink's convictions. We also address and affirm all other non- Miranda claims Rigterink raised during his initial appeal to this Court.

Facts

This Court's previous decision in Rigterink I provided a well-articulated factual predicate for Rigterink's murder conviction. That predicate is as follows:

I. BACKGROUND

This case involves the stabbing and murder of Jeremy Jarvis and Allison Sousa, which occurred in a in a dual-use warehouse complex in Polk County, Florida, on September 24, 2003. After an investigation by the Polk County Sheriff's Office (“PCSO”), Rigterink was indicted for these offenses on November 4, 2003.

On September 9, 2005, the jury found Rigterink guilty as to each count of first- degree murder. Following the penalty phase, the jury recommended a death sentence for each murder through two seven-to-five votes. The trial court later held a hearing pursuant to Spencer v. State, 615 So.2d 688 (Fla.1993).[n.2] At the ensuing sentencing hearing, which was held on October 14, 2005, the trial court adopted the jury's death recommendations. With regard to the murder of victim Jarvis, the trial court found the following aggravators:

(1) Rigterink's prior conviction of another capital felony or a felony involving the use or threat of violence to a person (i.e., the contemporaneous murder of victim Sousa) (great weight); [n.3] and

(2) The murder of victim Jarvis was especially heinous, atrocious, or cruel (“HAC”) (great weight). [n.4]

Later during Rigterink's trial, the defense again sought to proffer Farmer's testimony. This time, the defense contended that Farmer's testimony was admissible to show: (a) knowledge of the interaction of individuals involved in the drug trade in the immediate area, and Farmer's knowledge of many of the witnesses that were named in this case; and (b) his knowledge of the reputation of Marshall Mark Mullins. The defense did not provide a new proffer, and the trial court never specifically ruled on this re-proffer of Farmer's prior testimony. This claim by the defense lacked merit and the trial court acted properly in excluding Farmer's testimony.

Assuming relevancy ³ and satisfaction of the predicate requirements, hearsay testimony is admissible to establish one's reputation within his or her community. Section 90.803(21), Florida Statutes (2005), provides:

[T]he following are [admissible] as evidence, even though the declarant is available as a witness: ... (21) Reputation as to character.—Evidence of reputation of a person's character among associates or in the community.

In turn, section 90.405(1), Florida Statutes,⁴ as interpreted by this Court, supplies the applicable admissibility predicate:

Section 90.405 governs the type of evidence that may be used to prove reputation. As a predicate to the introduction of such evidence, a foundation must be

[66 So.3d 895]

laid to prove that the witness testifying as to reputation is aware of the person's general reputation for truthfulness in the community. Charles W. Ehrhardt, Florida Evidence § 405.1 (1995 ed). Essentially, it must be established that the community from which the reputation testimony is drawn is sufficiently broad to provide the witness with adequate knowledge to give a reliable assessment. This assessment must be based on more than “mere personal opinion, fleeting encounters, or rumor.” Rogers v. State, 511 So.2d 526, 530 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988). Further, reputation evidence “must be based on discussions among a broad group of people so that it accurately reflects the person's character, rather than the biased opinions or comments of ... a narrow segment of the community.” Ehrhardt, supra, § 405.1 at 197 (footnote omitted).Larzelere v. State, 676 So.2d 394, 399–400 (Fla.1996).

Farmer's testimony failed to establish the existence of a recognized, broad-based drug-trade “community.” Additionally, Farmer presented his testimony with regard to Mullins' allegedly violent nature in terms of his own opinion and generalized personal experiences, which is not a proper method to establish character or reputation evidence in Florida. See, e.g., Wyatt v. State, 578 So.2d 811, 813 (Fla. 3d DCA 1991) (holding that section 90.405, Florida Statutes, “specifically limits the introduction of character evidence to reputation ... [and] does not permit evidence of character to be made by opinion” (citations omitted)).

Thus, Farmer's testimony concerning Mullins appears to be based on “mere personal opinion, fleeting encounters, or rumor,” which this Court has stated is insufficient to satisfy section 90.405(1)'s admissibility predicate. Rogers, 511 So.2d at 526; see also Ibar v. State, 938 So.2d 451, 469 (Fla.2006) (“As a predicate to the introduction of ... reputation evidence, ... section 90.405, Florida Statutes (1999), requires the witness to be aware of the person's general reputation in the community and that the community must be sufficiently broad to provide adequate knowledge and a reliable assessment.”).

Therefore, the trial court did not abuse its discretion by excluding Farmer's testimony under section 90.405(1).

Constitutionality of Capital Sentencing Scheme and Lethal Injection

a. Ring and the Unanimous Jury Verdict of Guilty

Rigterink alleges that Florida's capital sentencing scheme fails to satisfy the constitutional requirements articulated in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and that Florida's capital sentencing scheme is unconstitutional because the judge, rather than the jury, determines the sentence and the jury's recommendation need not be unanimous. This Court has consistently rejected similar challenges to Florida's capital sentencing scheme, and Rigterink has merely presented his general objections to this Court's prior precedent.

For example, in Frances v. State, 970 So.2d 806, 822 (Fla.2007), this Court addressed the challenges that Rigterink raised in this case concerning Florida's capital sentencing scheme:

[I]n over fifty cases since Ring's release, this Court has rejected similar Ring claims. See Marshall v. Crosby, 911 So.2d 1129, 1134 n. 5 (Fla.2005), cert. denied, 547 U.S. 1143, 126 S.Ct. 2059, 164 L.Ed.2d 807 (2006). As the Court's plurality opinion in Bottoson v. Moore, 833 So.2d 693 (Fla.2002), noted, “the United States Supreme Court repeatedly

[66 So.3d 896]

has reviewed and upheld Florida's capital sentencing statute over the past quarter of a century.” Id. at 695 & n. 4 (listing as examples Hildwin v. Florida, 490 U.S. 638, 109 S.Ct. 2055, 104 L.Ed.2d 728 (1989), Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984), Barclay v. Florida, 463 U.S. 939, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983), and Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976)); see also King v. Moore, 831 So.2d 143 (Fla.2002) (denying relief under Ring ).

[The defendant's] claim is without merit. Ring did not alter the express exemption in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that prior convictions are exempt from the Sixth Amendment requirements announced in the cases. Id. at 490, 120 S.Ct. 2348. [N.5.] This Court has repeatedly relied on the presence of the prior violent felony aggravating circumstance in denying Ring claims. See, e.g., Smith v. State, 866 So.2d 51, 68 (Fla.2004) (denying relief on Ring claim and “specifically not[ing] that one of the aggravating factors present in this matter is a prior violent felony conviction”); Davis v. State, 875 So.2d 359, 374 (Fla.2003) (“We have denied relief in direct appeals where there has been a prior violent felony aggravator.”); Johnston v. State, 863 So.2d 271, 286 (Fla.2003) (stating that the existence of a “prior violent felony conviction alone satisfies constitutional mandates because the conviction was heard by a jury and determined beyond a reasonable doubt”); Henry v. State, 862 So.2d 679, 687 (Fla.2003) (stating in postconviction case that this Court has previously...