Opposition Brief — Vandercreek v. Florida

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IN THE

UNITED STATES SUPREME C

October Term 1988

Case No. 88-783

PETER DAVID VANDERCREEK,

Petitioner,

STATE OF FLORIDA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

SECOND DISTRICT COURT OF APPEAL,

STATE OF FLORIDA

BRIEF OF RESPONDENT IN OPPOSITION

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

GARY O. WELCH

Assistant Attorney General

The Capitol

Tallahassee, Florida 32399-1050

COUNSEL FOR RESPONDENT

QUESTIONS PRESENTED

1. Whether any of the so-called

automobile exceptions permit a

warrantless search of the

interior of petitioner's

automobile for objects not

externally visible where’ the

locked automobile was lawfully

parked on petitioner's home

property immediately adjacent to

his residence.

2. Whether state prosecutor's

improper jury arguments falsely

accusing petitioner's counsel of

subordination [SIC] of perjury

e.g. "manufactured, contrived

and fabricated defenses put

together by experienced criminal

defense lawyers" violated

petitioner's due process right

to fair trial.

a a F

TABLE OF CONTENTS

PAGE NO.

QUESTIONS PRESENTED... 1... ese eeeeeecves 1

TABLE OF CONTENTS... .ccccccccccccscsecs 2

TABLE OF AUTHORITIES... ...-eeeeeeeeees 3

OPINIONS BELOW... cccccccccccscsscseces 1

JURISDICTION... .. cc cccccccccscccscceces 1

STATEMENT OF THE CASE.....ccccccccsees 2

REASONS FOR DENYING THE WRIT.........- 13

CONCLUSION... .cccccccccccccccccscccces 18

TABLE OF AUTHORITIES

Bruno v. Rushen,

721 F.2d 1193 (9th Cir. 1983),

California v. Carney,

471 U.S. 386 at 393 (1985),

Chapman v. California,

386 U.S. 18 (1967),

Collidge v. New Hampshire,

403 U.S. 443 (1971),

Jenkins v. State,

385 So.2d 1356 (Fla. 1980),

Texas v. White,

423 U.S. 67 (1975),

Vandercreek v. State,

531 So.2d 719 (Fla. 2d DCA 1988),

OTHER AUTHORITIES:

28 U.S.C. section 1257(3),

- iii -

PAGE NO.

Be 2 emma se

OPINIONS BELOW

The decision of the Florida Second

District Court of Appeal is reported as

Vandercreek v. State, 531 So.2d 719 (Fla.

2d DCA 1988).

JURISDICTION

The per curiam affirmance of the

petitioner's judgment precluded the

petitioner from obtaining any possible

jurisdiction in the Florida Supreme Court.

Jenkins v. State, 385 So.2d 1356 at 1359

(Fla. 1980). As such, the Florida Second

District Court of Appeal is the court of

last resort for direct proceeding in

Florida in the instant case. This Court

may entertain the constitutional issues

presented pursuant to 28 U.S.C. section

1257(3).

STATEMENT OF THE CASE

The petitioner was charged with first

degree murder of Dion Grant. (R 1125-1126)

The evidence adduced at trial

overwhelmingly proved that the petitioner

shot and killed Dion Grant, and as such,

the petitioner's sole tactic at trial was

to establish the defense of justifiable

use of force (self-defense). |

The state presented evidence in its

case in chief that the petitioner and Dion

Grant were homosexual lovers (R 141-142),

that the shooting of Dion Grant by the

petitioner had been preceded by Grant's

kissing and dancing with Carlos Gonzalez

(R 52-53), the petitioner's apparent

irritation with Grant's actions (R 54),

that there was an argument between the

petitioner and Dion Grant during the ride

to the petitioner's residence which

resulted in the petitioner being cited for

careless driving (R 74), and the shooting

o fe

of Dion Grant a few minutes after the

conclusion of the traffic stop outside the

petitioner's residence (R 79-80). Police

officer Myers, the first officer to

respond to the police radio broadcast and

the officer who issued the preceding

traffic citation to the petitioner,

testified that upon arriving at the scene

the petitioner exited his residence and

stated “he is dead" (R_ 88). The

petitioner's clothes were not torn, his

hair was not messed and there were no

visible signs of scratches, abrasions or

bruises at this time (R_ 90). The

petitioner was immediately arrested and

searched for a weapon (R 972). Officer

Myers then pushed the residence door open

and observed Holly Vandercreek, the

petitioner's sister, in the residence (R

91). Myers was informed by Holly

Vandercreek that the petitioner entered

the residence after the shooting without a

gun (R 997). Myers attempted to check the

petitioner's vehicle for the murder weapon

but the doors were locked (R 980). A

search of the surrounding area failed to

produce the weapon (R 97, 993).

The crime scene consisted of a

parking lot which served numerous duplex

apartment units (R 1193). The victim's

body was found in the area between the

parking lot and the petitioner's duplex

unit (R 1195). The victim was without his

shoes, there were blood splatterings on

the petitioner's car, there were six

bullet casings found around the car and

the victim had been shot four times (R

293, 990, 992, 1006). As a result of the

above evidence, the investigating officer

believed that both the gun and the

victim's shoes were in the petitioner's

car (R 998, 1008). The petitioner's car

was impounded and a search warrant was

sought by the police. However, the car

was subsequently searched without

obtaining a warrant after the police were

een

apprised by a representative of Office of

the State Attorney that a warrant was

unnecessary (R 1019). This search

produced both the murder weapon and the

victim's shoes (R 1035-1038).

In response to the -= anticipated

defense of justifiable use of deadly

force, the state presented evidence that

the victim had been shot two times in the

front, two times in the back and that all

four shots were probably fatal (R 371-

372). It was further stipulated that the

victim was 5'6" tall and weighed 123

pounds at the time of death (R 386, 391-

392).

The petitioner testified that he had

a motorcycle accident in Tampa on June 2,

1982 (R 404). Prior to this accident, the

petitioner and Dion Grant had _ become

lovers and had lived together (R 414-416).

After living together for 3-4 months, the

petitioner and Grant became involved in a

fight during which the police were called

(R 418-419). Grant moved out after the

fight and returned a month later (R 419-

420). After living together for another

four month period, Grant left because of

another fight (R 420-421). Subsequently,

the petitioner received a back injury as a

result of his motorcycle accident and

moved to Tallahassee for 14 months for the

purpose of receiving rehabilitation

treatment (R 405-406). The petitioner

returned to Tampa in September of 1983 and

began living with Grant again (R 406, 422-

423). The petitioner informed Grant that

there could not be any further fights

because of the petitioner's back injury (R

424). In March of 1984, the petitioner

and Grant became involved in another fight

which required a police response (R 425-

426). Grant moved away because of this

fight (R 424). Grant and the petitioner

resumed their relationship that same

month. However, they never lived together

again (R 427, 429).

In July of 1985, the petitioner went

to visit Grant at Grant's residence.

After staying there for a few hours, the

petitioner became angry because he

believed that Tommy Gay had stolen his

money (R 474). After Grant interceded on

the petitioner's behalf, the petitioner

went outside and demanded his money (R

476). Thereafter, petitioner fired shots

into the air and at the house (R 476-477).

The petitioner testified that on the

night of the shooting the petitioner and

Grant were returning from a bar when Grant

decided that he wanted the petitioner to

buy him a hamburger (R 440-442). When the

petitioner refused to buy Grant a

hamburger, Grant grabbed the steering

wheel. This caused damage to the

petitioner's car and resuited in the

petitioner receiving a traffic ticket (R

446-447). After driving further, Grant

was told by petitioner to get out of the

car and walk home (R 448). When Grant

refused to exit the car, the petitioner

told Grant that he could walk home from

the petitioner's house. Upon arriving at

the petitioner's residence, Grant began

approaching the petitioner while saying he

was going to get the petitioner (R 452).

The petitioner fired two warning shots and

then shot Grant because he was afraid that

Grant would take the gun and use it on the

petitioner (R 453).

The prosecutor initiated his closing

argument by stating: (1) that “the jury

must "look beyond the manufactured,

contrived and fabricated defenses put

together by experienced criminal defense

lawyers" and (2) I'm here to tell you that

the defense of self-defense in this case

is manufactured and contrived and the

reason that I tell you this is because

it's totally and completely, totally and

completely dependent upon the testimony of

Peter David Vandercreek, totally" (R 634).

The prosecutor went on to argue motive,

the crime scene facts and past

manifestations of superior strength over

Grant by petitioner (R 635-636).

Thereafter, the prosecution argued that

petitioner chose not to present’ the

testimony of the medical doctor who had

treated the petitioner for his back injury

and that the petitioner chose to rely on

his own testimony "to raise, to create, to

manufacture self-defense" (R 637-638).

The prosecutor further submitted that the

petitioner's actions were manifestations

of hostility rather’ than fear and

analogized the acts of petitioner in

taking Grant's life to previous uses of

the gun by petitioner in situations of

anger and frustration (R 641-643). As the

prosecutor announced that he was coming to

the conclusion of his argument_ the

petitioner objected for the first time (R

661). At this time, the trial court noted

that the objection occurred 48 minutes

after argument had been initiated (R 661).

When the trial court asked the

petitioner's counsel for specificity as to

his grounds for mistrial, defense counsel

delineated his reasons as follows: (1) it

was improper for the prosecutor to tell

the jury what defense counsel believed,

(2) it was improper to argue an inference

from the failure to present medical

records since these matters were available

to both sides, (3) it was improper to

argue impeachment evidence for substantive

purposes and (4) it was improper for the

state to argue that they did have access

to the petitioner's medical records (R

661-664). Thereafter, the petitioner's

counsel categorized the above as

manifesting prosecutorial misconduct

warranting a mistrial (R 664). After

questioning counsel why he waited so long

to object, the trial court stated that the

prosecutor's argument suggesting that the

evidence was manufactured was ill-advised.

However, the trial court denied the motion

—

for mistrial (R 666). Thereafter, the

trial court gave the petitioner's

attorneys the option of a_ curative

instruction or the right to refute the

prosecutor's statements in final summation

(R 671-673). Petitioner's counsel chose

to refute the prosecutor's allegations in

summation (R 673).

In closing argument, the petitioner's

counsel made specific reference to the

prosecutor's allegations that the claim of

self-defense was a contrived story and

argued what the prosecutor said was not

evidence and that such statements should

not have been made (R 681). Petitioner's

counsel went on to argue that defense

counsel had confidence in the petitioner's

version of the events (R 681).

The petitioner filed a Motion for New

Trial and Renewed Motion for Judgment of

Acquittal in which the petitioner again

raised his claim of improper prosecutorial

argument (R_ 1335-1336). During the

EEE

hearing. on this motion, the trial court

expressed the opinion that even if the

objection by petitioner was sufficient to

preserve the issue, a harsh curative

instruction highly prejudicial to the

state would have been sufficient (R 848);

but that counsel chose to handle it in

final rebuttal argument (R 847). The

trial court also expressed the opinion

that defense counsel's rebuttal argument

offset the improper statements by the

prosecutor (R 850). Thereafter, the trial

court summarily denied the Motion for New

Trial without an opinion (R_ 850-851,

1337).

REASONS FOR DENYING THE WRIT

FLORIDA'S APPLICATION OF THE

AUTOMOBILE EXCEPTION TO THE

WARRANT REQUIREMENT OF THE

FOURTH AMENDMENT IS CORRECT

UNDER THIS COURT'S DECISION IN

TEXAS V. WHITE.

The petitioner here argues that the

decision of the Florida Second District

Court of Appeal is in conflict with this

Court's decision in Collidge v. New

Hampshire, 403 U.S. 443 (1971). While

some of the facts of this case are similar

to ones in Collidge, the variation in

facts makes the holding in Collidge

inapplicable to this situation. In both

Collidge and the instant case, the

automobile was parked outside the

residence, the car was impounded and taken

to the police station, there was

sufficient time to obtain a search warrant

and the car was searched without a warrant

at the police station. However, Collidge

is distinguishable from the instant case

for several reasons.

First, in Collidge, law enforcement

had sufficient time to prepare for a

deliberate police investigative search.

Secondly, the Collidge decision

specifically turned on the fact that there

were no exigent circumstances which

obviated the warrant requirement. In

Collidge this Court specifically noted

that there were no weapons or other facts

involved which would otherwise make

obtaining a warrant impractical.

Collidge, 403 U.S. at 462. :

Sub judice, law enforcement ' was

making an immediate emergency response to

a homicide crime scene and the vehicle was

evidence of the crime in open view.

Additionally, law enforcement was unable

to find the handgun that was

unquestionably within the immediate area,

and they firmly believed that the weapon

was in the petitioner's car.

Since Collidge, this Court has made

it clear that a motor vehicle may be

an Chis

searched absent exigent circumstances when

there is probable cause to search the

vehicle. Texas v. White, 423 U.S. 67

| (1975). Particularly, this Court has

rejected the argument that a motorhome has

all the expectations of privacy of a

residence when "the vehicle is so situated

that an objective observer would conclude

that it was being used not as a residence,

but as a vehicle". California v. Carney,

471 U.S. 386 at 393 (1985).

In this case, the vehicle was readily

operative and parked in a place used

solely for transportation vehicles; it was

not remotely possessing the

characteristics of a residence. As such,

the warrantless search of the petitioner's

vehicle, accompanied by probable cause,

~was within the confines of the Fourth

Amendment.

Il.

THE IMPROPER CLOSING ARGUMENT BY

THE PROSECUTOR WAS DETERMINED BY

THE STATE TRIAL COURT TO HAVE

BEEN HARMLESS IN LIGHT OF THE

PETITIONER'S ARGUMENT IN SUMMA-

TION.

The state trial court expressed the

opinion that even if the objection by

petitioner was sufficient to preserve the

issue, a harsh curative instruction highly

prejudicial to the state would have been

sufficient to cure any error (R 848).

However, defense counsel chose to make a

rebuttal argument. The trial court found

that this rebuttal argument offset the

improper statements by the prosecutor (R

850). As such, the trial court made a

harmless error determination in keeping

with this Court's doctrine in Chapman v.

California, 386 U.S. 18 (1967).

The Ninth Circuit Court of Appeals in

Bruno v. Rushen, 721 F.2d 1193 at 1195

(9th Cir. 1983), a case relied on by

petitioner to show conflict, applied the

« 1

Chapman harmless error standard to an

erroneous prosecutorial argument. It is

clear there is no conflict of decisions

since the judgment in Bruno and the one

now before this Court both use an analysis

of harmless error. Respondent

respectfully submits that the instant

harmless error decision does not warrant

certiorari review since this point turns

on specific facts rather than a matter of

law which is in need of this Court's

Clarification. See, Fry Roofing Co. v.

Wood, 344 U.S. 157 (1952).

—

CONCLUSION

Whereas, the judgment of the Florida

Second District Court of Appeal does not

manifest conflict of opinions with any