SC88802 Michael Scott Keen v. State of Florida

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SC88802 Michael Scott Keen v. State of Florida - Corrected Opinion

State: Florida

Court: Supreme Court

Docket No: sc88802

Case Date: 09/28/2000

Plaintiff: SC88802 Michael Scott Keen

Defendant: State of Florida - Corrected Opinion

Preview:Supreme Court of Florida
No. SC88802
MICHAEL SCOTT KEEN,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[September 28, 2000]
CORRECTED OPINION
PER CURIAM.
We have on appeal the judgment and sentence of the trial court imposing the
death penalty upon appellant Michael Scott Keen (Keen).   We have jurisdiction.
Art. V, § 3(b)(1), Fla. Const.   For the reasons expressed below, we
reverse Keen's first-degree murder conviction, vacate his sentence of death and
remand for further proceedings consistent with this opinion.
PROCEDURAL HISTORY
This is the third time this case has been before us.   Keen was originally

indicted in 1984 and charged with first-degree murder in the death of his wife, Anita
Lopez Keen.   After Keen was convicted and sentenced to death, we reversed both
the conviction and sentence on appeal and remanded for a new trial based on
prosecutorial misconduct.   See Keen v. State, 504 So. 2d 396 (Fla. 1987),
disapproved of on other grounds, Owen v. State, 596 So. 2d 985 (Fla. 1992).   On
remand, Keen was again convicted of first-degree murder and sentenced to death.
As in the first appeal, we again reversed and remanded for a new trial based on the
presence of unauthorized materials in the jury room, and the trial court's failure to
conduct an in-camera inspection of the grand jury testimony of the State's star
witness.   See Keen v. State, 639 So. 2d 597 (Fla. 1994).
In his second retrial, Keen was once again convicted by the jury of first-
degree murder on June 30, 1995.   The penalty phase was held on August 14, 1995,
and the jury1 recommended, by a vote of seven to five, a sentence of life
imprisonment without possibility of parole for twenty-five years.   The trial judge
held a sentencing hearing on October 19, 1995, and imposed a sentence of death
on July 15, 1996, overriding the jury's advisory sentence of life imprisonment.2
1  The same jury that sat for the guilt phase reconvened for the penalty phase.
2  The trial court found the following statutory aggravators: (1) the murder was committed for
pecuniary gain, section 921.141(5)(f); Florida Statutes (1995); (2) the murder was especially heinous,
atrocious, or cruel (HAC), section 921.141(5)(h); and the murder was committed in a cold, calculated
-2-

MATERIAL FACTS
Guilt Phase
The following facts were adduced during Keen's first trial:
The evidence against Keen adduced at trial was
primarily based on the testimony of Ken Shapiro.   When
Shapiro first moved to Florida in 1978 he was hired by
Keen to work for a company managed by Keen.   Shortly
thereafter Keen invited Shapiro to become his roommate,
a relationship which continued, with one brief
interruption, until at least the end of 1981.   Keen was very
generous financially to Shapiro, providing him with
numerous small loans and helping him out with rent and
food; at one point Keen provided Shapiro with a Cadillac.
There was no discussion that Shapiro was to repay Keen.
According to Shapiro, some time in 1980 Keen informed
him that he wished to retire before the age of forty and
that the easiest way to accomplish this would be to find
an unsuspecting girl, marry her, insure her life, murder her
and then invest the proceeds.   Keen met the victim, Anita
Lopez, in late summer of 1980. Lopez was then twenty-
one years old, Cuban born and worked in a tractor
factory.   After Keen began seeing Lopez regularly, he told
Shapiro, "I feel Anita is the girl."   Shortly thereafter,
Lopez moved in with Keen and Shapiro at their Ft.
Lauderdale home.   By early 1981 Keen began to discuss
and premeditated manner without any pretense of moral or legal justification (CCP), section
921.141 (5)                                                                                                  (i).  The trial court found no statutory mitigators.  In nonstatutory mitigation, the trial court
accorded the disparate treatment of the defendant's accomplice, Kenneth Shapiro, little weight; his
good behavior since his 1984 arrest some weight; his good behavior at trial little weight; and his prior
contributions to society and good employment record little weight.  The trial court rejected two
proffered nonstatutory mitigators, finding that they did not exist: the defendant's good character and
positive personality traits, including his past history of unselfishness and generosity toward others; and
his good potential for rehabilitation.
-3-

with Shapiro the actual manner in which his plan could be
accomplished.   Keen's first suggestion was to push the
victim off a high building, but eventually drowning was
decided upon.   In June 1981, two separate insurance
policies were taken out each insuring Anita Lopez's life
for $50,000.   Both policies contained double indemnity
provisions in case Lopez met an accidental death and
both policies named Keen as the primary beneficiary.
Keen and Lopez were married on August 1, 1981.
Shortly thereafter it was discovered that Lopez was pregnant
which, according to Shapiro's testimony, forced Keen to
accelerate the implementation of his plan.    Shapiro testified that
Keen threatened to kill him or his grandparents if he went to the
authorities.   Shapiro further testified that he felt "boxed in" and
so remained quiet and did not tell anyone of Keen's plan.   Keen
allegedly told Shapiro that this would be Shapiro's way of
repaying his debt to Keen and to "wipe the slate clean."
In late October or early November of 1981 Keen
informed Shapiro that if Sunday November 15 was a nice
day, he would proceed with the plan.   Sometime in the
late morning or early afternoon of the 15th, Keen and the
victim left their canal-front home and traveled in Keen's
boat, the Foreplay Too, through the intercoastal
waterway.   By prearrangement, Keen and the victim
stopped at a waterfront bar, Tug Boat Annie's; shortly
thereafter, Shapiro arrived at the bar.   After spending
some period of time there the three boarded the boat and
headed out into the ocean.   When the boat was
approximately fifteen to eighteen miles out, Keen, who
had been driving, put the boat in neutral, walked to where
the victim was standing and pushed her from behind into
the ocean.   Keen told Shapiro to move the boat out of the
victim's range;   Keen took over the controls and kept the
boat out of the victim's range.    According to Shapiro,
the plan was to actually watch the victim drown so that
her body could be recovered and Keen could then collect
the insurance proceeds.    However, darkness set in and
-4-

Shapiro and Keen lost sight of the victim.   They returned
to Keen's backyard dock whereupon Shapiro called the
Coast Guard and the Broward County Sheriff's office.
Keen gave statements to the authorities that at some point
the victim, who was four to five months pregnant at the
time, went down into the cabin below to rest and that
when they returned home, she was not there.   A week
later Shapiro gave a sworn statement to the sheriff's office
corroborating Keen's version of an unexplained accident.
Shapiro also repeated the story to an attorney hired by
Keen to initiate the insurance claims process.
The next time Shapiro gave a statement concerning
these events was in August 1984 when he was
approached by detectives from Broward County. [Note
1]   In this statement Shapiro related the same version of
events that he later testified to at trial.   Following
Shapiro's August 1984 statement Broward County
Detectives Scheff and Amabile located Keen who was
living under an assumed name in Seminole County.   Keen
was arrested on August 23 at his place of business and
was returned to Broward County on August 24.
[Note 1:] It appears that appellant's brother, Patrick
Keen, contacted a representative of one of the companys
who had insured Anita Lopez Keen's life, offering to tell
the "true" story of her death in exchange for a finder's
fee.   The representative then contacted the Broward
County authorities who in turn contacted Shapiro.   At
trial Shapiro explained that he finally told the truth about
what had happened to the victim because his knowledge
of the murder was devastating him and that he knew
sooner or later he would have to tell someone.   He further
explained that he was testifying without immunity because
he wanted to get the story off his chest.
Keen, 504 So. 2d at 397-98.
-5-

Former Broward County deputy sheriff Hector Mimoso testified that he was
dispatched to Keen's residence the night of Anita Keen's disappearance.   He related
that while he was asking Keen questions, Shapiro "was giving the answers."   Keen
reportedly "spent all of the time sitting on the couch and he was very calm."
Mimoso inspected the boat and found it "very tidy, very well kept, put away, like
they had just been cleaned."   He also testified that he climbed up to the flying
bridge and, in observing where it was in relation to the boat's stern, said "it would
have been possible to hear a scream or splash of water."   Mimoso testified that he
returned to the house and asked Keen if he had heard a scream or splash of water,
to which Keen replied that he had not.   On cross-examination, Mimoso stated that
he did not start the boat engines to determine how loud the sound would be and
what could be heard with the engines running.   Mimoso also reiterated that Shapiro
answered all of the questions until he told Shapiro to cease and desist, and he
observed Shapiro pacing around and hovering near where Mimoso was questioning
Keen.
Detective Don Scarborough of the Broward County Sheriff's Department
testified that he interviewed Keen on December 10, 1981, a tape recording of which
was published to the jury.   Keen related in that statement that Anita had grown tired
as the boat returned to shore and went down to the cabin to sleep, but she was not
-6-

there when the boat docked at his home.   He also stated that the "engine was loud .
. . [t]he music was blaring and we were talking.   I didn't hear anything.   I don't think
Ken did either, and we did not see her or hear her come out during the course of
this time that we were coming back."
The prior sworn testimony of Don Johnson, a Life of Virginia sales
representative, was read into evidence.3 Servicing responsibility for Keen's life
insurance policies was transferred to Johnson's territory when Keen moved to Fort
Lauderdale from the Orlando area in June 1981.   After being contacted by Johnson
and not changing his own policies, Keen obtained a $50,000 double indemnity
policy insuring Anita's life, meaning it would pay the beneficiary, Keen, an
additional amount if Anita died an accidental death.
Maddie Genova, a former Prudential Insurance Company office worker,
appeared at trial and identified a second $50,000 double indemnity, whole life
insurance policy insuring the life of Anita Keen, for which Keen was also the
beneficiary.   This second policy was obtained when a Prudential agent made a cold
call on the Keens.   Keen himself already had $115,000 in life insurance with
Prudential.
3  Johnson was unavailable.
-7-

Detective Sergeant Philip Amabile of the Broward County Sheriff's Office
(BCSO) testified that he began an investigation in this case in August 1984 because
BCSO "received information from two insurance companies that they had received
information that the case was not a missing persons case, but a murder."
(Emphasis added.)   He also testified that after talking to Patrick Keen, the
investigation of this case was pursued.   Amabile and Detective Scheff then
proceeded to interview Shapiro for several hours, after which they arrested Keen
the following day.   Amabile testified that Keen provided several versions of what
had transpired on the boat, beginning with his 1981 statement that Anita was not
found upon return to the dock.   His second version of the events described Anita
and him standing on the side of the boat when they were shoved into the ocean.4
Keen then allegedly stated that he swam back to the boat, assumed the controls of
the vessel from Shapiro who was "frozen like a zombie at the controls," returned to
the area where they had been pushed overboard, and began searching for Anita.
They returned home only after an hour of fruitless searching.   Keen maintained that
what transpired at sea was an accident.
4  This is the version that Keen testified to during his second trial, i.e., his first retrial.  Keen, 639
So. 2d at 598.
-8-

Michael Moran, a convicted felon, testified that he had been incarcerated
with Keen in late 1984.5   He stated that Keen asked him to kill Shapiro.   Moran
expected to be released soon from a prior sentence and he allegedly was to
confront Shapiro, make him write a confession and a suicide note, and then hang
him.   Moran testified that in furtherance of this plan, Keen gave him Shapiro's
grandparents' address, the phone number of his family's liquor store in New York,
and the date that Shapiro was to be deposed.   Moran also related that he was to
receive $20,000 for his services.   The State placed in evidence an envelope that
Moran claimed contained his handwriting as well as that of Keen.   Moran's
Broward County armed robbery charge was ultimately dropped after he testified
against Keen.   He is currently serving a life sentence without possibility of parole in
Michigan for first-degree murder.
Dale Nelson, an investigator with the State Attorney's office, testified that he
received an envelope from Moran at the Broward County Jail in October 1984,
which he then transported to the FBI lab in Washington.   Nelson took fingerprints
from Keen in 1987.   Max Jarrell, a fingerprint examiner with the FBI, testified that
one latent print on the envelope matched Keen and none matched Moran.
5  Moran was facing an outstanding armed robbery charge in Florida at the time of his
incarceration with Keen.
-9-

The defense placed in evidence Keen's Prudential life insurance policy, the
letter of nonprosecution of Shapiro from Assistant State Attorney Robert Carney
to Shapiro's attorney, and copies of Moran's motion to set bond and order
reducing the bond.   The defense presented no testimony.   Keen chose not to testify
after being advised of his constitutional rights by the trial judge.
Penalty Phase
The State presented no evidence during the penalty phase.   The defense read
the testimony of Keen's mother, Bonnie Keen, into evidence.   Responding to
questions from Keen's attorney, she testified that Keen was the oldest of four
children; was very protective and nurturing toward his siblings; excelled in the arts,
including piano, in which he competed in the International Piano Guild; was a high
school honor society member; played high school football; was deserted by an
alcoholic father at the age of seven; assumed the role of head of the family until he
went to college; and was always a good son and brother.   The defense also
introduced official Department of Corrections records showing that Keen had only
one minor disciplinary infraction since his incarceration in the state prison system in
1985.   The State presented no rebuttal evidence.
-10-

APPEAL
Keen raises nineteen claims of error,6 several of which we resolve
summarily.7   We address the remaining issues in turn.
MOTION FOR MISTRIAL AFTER INTRODUCTION OF HEARSAY
6  The claims are: (1) the trial court erred in denying Keen's motion for mistrial after hearsay
was introduced; (2) the trial court erred in denying Keen's motion for mistrial after a witness mentioned
the prior trial; (3) the trial court erred in prohibiting Keen from placing in evidence a letter relevant to a
witness's motive and inconsistent with his trial testimony; (4) the trial court erred in allowing a witness to
identify a hand-printed note as Keen's; (5) the trial court erred in allowing a lay witness to express an
opinion; (6) the trial court erred in allowing collateral offense and opinion evidence; (7) the trial court
erred in giving a special jury instruction on jurisdiction; (8) the trial court erred in restricting cross-
examination of a prosecution witness; (9) the trial court erred in denying Keen's motion to suppress his
statements to police; (10) the trial court erred in denying Keen's motion to dismiss the indictment; (11)
the trial court erred in prohibiting the cross-examination of the arresting officers regarding their
interrogation techniques in other cases; (12) the state of Florida lacks jurisdiction to prosecute this
homicide; (13) the trial court erred in denying Keen's motion to dismiss based on prosecutorial
misconduct; (14) the standard jury instruction on reasonable doubt is unconstitutional; (15) the trial
court erred in overriding the jury's life recommendation; (16) the trial court committed errors in its
sentencing order; (17) the trial court erred in not considering life without parole as a sentencing option;
(18) electrocution is cruel and unusual punishment; and (19) Florida's death penalty statute is
unconstitutional.
7  Claim (12) was fully litigated in Keen's first direct appeal and rejected by this Court.  Keen,
504 So. 2d at 398-99.  The case that controlled our resolution of Keen's original claim, Lane v. State,
388 So. 2d 1022 (Fla. 1980), not only remains good law, but was cited extensively and approvingly by
this Court as recently as 1993.  See Deaton v. Dugger, 635 So. 2d 4 (Fla. 1993).  Likewise, claim
(13) was considered and rejected in Keen's first direct appeal.  Keen, 504 So. 2d at 402 n.5.  Claim
(14) has been consistently rejected by this Court.  See Richardson v. State, 706 So. 2d 1349, 1356
(Fla. 1998); Archer v. State, 673 So. 2d 17, 20 (Fla. 1996).  Claim (16) is moot in light of our
resolution of the jury override issue.  Claim (18) was rejected by this Court in Provenzano v. Moore,
744 So. 2d 413 (Fla. 1999); cert. denied, 120 S. Ct. 1222 (2000) and Jones v. State, 701 So. 2d 76
(Fla. 1997).  Finally, claim (19) has been consistently rejected by this Court.  See Knight v. State, 746
So. 2d 423, 429 n.7 (Fla. 1999); Richardson, 706 So. 2d at 1356.
-11-

In his first claim of error, Keen contends that the trial court improperly
allowed the State to introduce hearsay evidence through Detective Amabile under
the theory of "explaining the police investigation."   Keen argues that this was
harmful error under our prior caselaw and warrants reversal for a new trial.   See
Wilding v. State, 674 So. 2d 114 (Fla. 1996); Conley v. State, 620 So. 2d 180 (Fla.
1993); State v. Baird, 572 So. 2d 904 (Fla. 1990).   We must first analyze these
decisions which address the substance of the matters Keen has challenged.
In Baird, the defendant was charged with multiple counts of racketeering and
bookmaking.   See 572 So. 2d at 905.   At trial, an FDLE special agent was allowed
to testify that he had "received information that he [Baird] was a major gambler and
operating a major gambling operation in the Pensacola area," in response to the
prosecutor's question as to whether he had targeted Baird for prosecution.   Id.   On
review, we rejected the State's argument that the testimony established the special
agent's motive in investigating Baird because, at that point in the trial, "no evidence
of selective prosecution or bad motives . . . [by] the investigating officers had been
offered by the defense."   Id. at 907.   We also determined:
[W]hen the only purpose for admitting testimony relating
accusatory information received from an informant is to
show a logical sequence of events leading up to an arrest,
the need for the evidence is slight and the likelihood of
misuse is great.   In light of the inherently prejudicial effect
-12-

of an out-of-court statement that the defendant engaged in
the criminal activity for which he is being tried, we agree
that when the only relevance of such a statement is to
show a logical sequence of events leading up to an arrest,
the better practice is to allow the officer to state that he
acted upon a "tip" or "information received," without
going into the details of the accusatory information.
Id. at 908 (emphasis added).   We ultimately found the error harmless because the
testimony was only elicited prematurely; was offered to rebut Baird's contention
that he was selectively prosecuted; was neither focused upon nor brought to the
jury's attention again; and, finally, because the State based its case on substantial
evidence properly admitted during trial.   See id.
In Conley, the defendant was charged with and convicted of armed burglary,
three counts of sexual battery with a deadly weapon, and armed robbery with a
firearm.   See 620 So. 2d at 182.   Testimony concerning a police dispatch report
which originated when an unidentified person called the police was admitted into
evidence.   See id.   At trial, a police officer testified that he "received the call in
reference to a man chasing a female down the street . . . [t]he man supposedly had
some type of gun or rifle." See id.   During closing argument, the prosecutor argued
that this testimony, combined with the alleged victim's testimony, proved that the
defendant carried a rifle during the criminal episode.   See id.
On review, we stated:
-13-

Even if we were to conclude that the testimony was
not used to prove the truth of the matter asserted, the
contents of the statement were not relevant to establish a
logical sequence of events, nor was the reason why
officers arrived at the scene a material issue in the case.
As we said in Baird, the inherently prejudicial effect of
admitting into evidence an out-of-court statement relating
accusatory information to establish the logical sequence
of events outweighs the probative value of such evidence.
Such practice must be avoided.   Baird, 572 So. 2d at
908; see § 90.403, Fla. Stat. (1989).
Conley, 620 So. 2d at 183 (emphasis added) (citations omitted).   Under this
analysis, we found the police officer's improper testimony to be harmful error after
recognizing the lack of corroboration as to whether the defendant used a firearm, in
combination with evidence contradicting the alleged victim's testimony.   See id.
We found Conley applicable the following year in connection with the
admission of testimony from police officers regarding conversations with a witness
who later appeared to testify during the trial.   See Caruso v. State, 645 So. 2d 389
(Fla. 1994).   Specifically, we noted that "Officer Raimondi said they went to [the
witness] to ask her about a white male she reported having seen at midnight
December 5.   Officer Faby said Walker gave him a description of the man she saw,
and the description matched Caruso."   Id. at 395.   We rejected the State's
contention that the testimony was not inadmissible hearsay, noting that in Conley
we held "that the prejudice of out-of-court statements used to relate accusatory
-14-

information but offered simply to establish the logical sequence of events
outweighs the probative value of such evidence, rendering it inadmissible." Caruso,
645 So. 2d at 395.   Although we found error in the admission of such evidence, as
in Baird, we found the error harmless beyond a reasonable doubt, concluding that
the inadmissible evidence was no more than a prior consistent statement to
corroborate the witness's testimony and the declarant was cross-examined on the
topic, which mitigated the prejudice.   See id.
Most recently, in Wilding v. State, 674 So. 2d 114 (Fla. 1996), receded from
on other grounds, Devoney v. State, 717 So. 2d 501 (Fla. 1998), we wrote:
First, we agree that it was error to admit testimony
that the lead detective in the murder investigation received
an anonymous tip that named Neil Wilding in connection
with the murder.
During direct examination of the detective, the
prosecutor asked whether the anonymous tip received by
the detective gave the name Neil Wilding.   The detective
was allowed, over objection, to answer that it did.   The
detective further testified that the department began its
investigation of Wilding from the tip and "verified a lot of
the information that we received in the tip and developed
additional information."   The detective went on to explain
that the police interviewed Wilding's family and friends.
The State maintains that this testimony was
properly admitted because, given the fact that it took four
years to arrest Wilding for the murder, the testimony was
relevant "to show the logical sequence of events
regarding the murder investigation."   We cannot agree.
-15-

While it might have been permissible to allow the
detective to testify that police began the investigation
because of a "tip" or "information received," this
testimony clearly went beyond that authorized in State v.
Baird, 572 So. 2d 904 (Fla.1990). . .
We recognize that the information received in the
tip in this case was not detailed to the jury to the same
extent as was the information received in Baird.
However, similar evils are involved in both cases.   As
noted by the Third District Court of Appeal in Postell v.
State, 398 So. 2d 851, 854 (Fla. 3d DCA), review denied,
411 So. 2d 384 (Fla. 1981) (footnote omitted), where "the
inescapable inference from testimony [concerning a tip
received by police] is that a non-testifying witness has
furnished the police with evidence of the defendant's
guilt, the testimony is hearsay, and the defendant's right
of confrontation is defeated, notwithstanding that the
actual statements made by the non-testifying witness are
not repeated."
In this case, even though the detective never
specifically repeated what the informant told him, the
clear inference to be drawn from the testimony was that
the informant had implicated Wilding in the murder and
the information received was reliable because it had been
verified by police who talked to Wilding's family and
friends.   Thus, the jury was led to believe that an
unidentified person, who did not testify and was not
subject to cross-examination, had given the police
evidence of Wilding's guilt, evidence that upon
investigation proved to be reliable.   Even if the testimony
was offered simply to show the logical sequence of
events regarding the murder investigation, its probative
value clearly was outweighed by its prejudicial effect.   As
a general rule, the investigation leading to the defendant's
arrest is not at issue in a criminal trial.   Placing
information before the jury that a non-testifying witness
gave police reliable information implicating the defendant
-16-

in the very crime charged clearly could affect the verdict.
More importantly, because Wilding could not cross-
examine the unidentified witness, admission of this
testimony violated his confrontation rights.
Unlike the testimony relating the information
received from the informant in Baird, this testimony was
not merely elicited prematurely.   Baird, 572 So.2d at 908
(it was error to admit testimony relating information
received from informant because the testimony was
elicited before State's motive for investigating defendant
was put in issue on cross-examination).   In this case, the
only issue the testimony could have gone to other than to
establish the sequence of events leading to the
investigation was Wilding's identity as the killer.
Moreover, almost immediately after the testimony
concerning the steps taken to verify the anonymous tip,
the detective testified that in an attempt to locate Wilding,
the department "secured air time with America's Most
wanted."   Defense counsel immediately objected, moved
for a mistrial, and pointed out that the fact that Wilding
had been the subject of an "America's Most Wanted"
episode had been the subject of a motion in limine.   The
fact that Wilding was the subject of this widely viewed
television program clearly was irrelevant and highly
prejudicial.
When this error is considered in combination with
the testimony about the anonymous tip linking Wilding to
the murder, neither error can be considered harmless
beyond a reasonable doubt.   See State v. DiGuilio, 491
So.2d 1129 (Fla. 1986).   This is particularly true in light
of the fact that members of the jury were already
discussing their concern about Wilding, whom they now
knew had been the subject of "America's Most Wanted,"
having access to their personal information.   Thus, on
this record, we cannot say that there is no reasonable
possibility that these errors affected the verdict.   DiGuilio.
-17-

Wilding, 674 So. 2d at 118-19 (emphasis added).   As was well articulated by the
court in Postell v. State, 398 So. 2d 851 (Fla. 3d DCA 1981), it is impermissible for
the State to have the benefit of statements from mystery witnesses or sources
without the defendant having the right of confrontation and cross-examination.   "In
short, the insidious diminution of the precious rights of confrontation and cross-
examination, through some literal application of the rule against hearsay, cannot be
tolerated."   Id. at 856.
With that background in mind, a review of the relevant testimony of
Detective Amabile in this case demonstrates:
Q: When did you first get involved in investigating
[Anita Keen’s] disappearance or death?
A: I became involved in the case in August of
1984.
Q: At that point, what had been the status of the
investigation?
A: The case had remained open and it was classified only
as a missing persons case.
Q: Why did you begin to investigate the case at that time?
A: The office had received information from two
insurance companies that they had received information that the
case was not a missing persons case, but a murder.
Q: As a result of receiving that information, then, what
did you do in the reopening of the investigation?
-18-

A: The initial call to the office entailed that a Patrick Keen
-8
Q: Without telling us what you said, first of all, I would
like to know, do you know Patrick Keen?
A: Yes, I do.
Q: Have you met Patrick Keen?
A: Yes, I did.
Q: And without telling us what was said during this period
of time in August of '84, did you talk to Patrick Keen?
A: Yes, I did.
Q: And do you know what Mr. Keen's relationship was to
Michael Keen?
A: Yes, I do know.
Q: And what was that relationship?
A: They are brothers.
Q: Now, as a result of talking to [Patrick Keen], did you
pursue your investigation in this case?
A: That is correct.
Q: Tell us what you did?9
Q: Where did your investigation take you from that point?
A: I then made contact with a gentleman by the name of
Kenneth Shapiro.
(Emphasis added.)
Based on this exchange, we conclude that our reasoning in Wilding is
directly on point.   The challenged comments in this case are similar to the first error
8  At this point, defense counsel Kenneth Kukec registered a hearsay objection, which the trial
judge sustained.
9  At this juncture, a sidebar was held where the defense requested a mistrial, which was
denied.  Thereafter, the questioning resumed.
-19-

cited in Wilding, if not more blatant, because here we do not have an unidentified
"informant" but two life insurance companies and the defendant's own brother.   To
be sure, this case lacks such a prejudicial conjunction as the "America's Most
Wanted" issue in Wilding.   Nonetheless, without an opportunity for cross-
examination, the unmistakable link drawn between the "insurance companies . . .
receiv[ing] information that the case was . . . a murder," Patrick Keen, the
defendant's own brother who did not testify, and Shapiro, the State's key witness,
comprises a uniquely prejudicial relationship from which the jury could have most
certainly inferred that the life insurance companies had investigated this case and
had evidence that Anita had been murdered, and that Patrick Keen had information
that his brother was guilty of murder.   The inescapable inference from this hearsay
material was that the investigation had produced evidence that Anita's
disappearance was in actuality a murder.   Considering the sources of the
information, such an inference would tend to bolster Shapiro's corresponding
testimony.   This is especially so because Detective Amabile testified shortly
thereafter that this chain of events and information received "led to the preparing of
an arrest warrant for the defendant, Michael Keen."
This case closely parallels Wilding in that “the clear inference to be drawn
from [Amabile's] testimony” was that the insurance industry with its resources had
-20-

investigated the disappearance and discovered a murder, that Keen’s own brother
had implicated him in the murder, and that “the information received was reliable
because it had been verified by police who talked to [Shapiro]."   Wilding, 674 So.
2d at 119.   As a result, "the jury was led to believe that [the insurance companies
and defendant's brother], who did not testify and [were] not subject to cross-
examination, had given the police evidence of [Keen's] guilt, evidence that upon
investigation proved to be reliable."   Id.   Because Wilding is squarely on point with
regard to this type of testimony, we must next determine whether the error here was
properly preserved and the standard of review we should apply in our analysis.
Here, the State argues that the subject matter of the testimony challenged was
not hearsay because it was not elicited to prove the truth of the matter asserted, but
only to show a sequence of events.   We reject such contention.    First, this Court
clearly instructed in Baird, reaffirmed in Conley, and confirmed in Wilding that an
alleged sequence of events leading to an investigation and an arrest is not a material
issue in this type of case.   Therefore, there is no relevancy for such testimony to
prove or establish such a nonissue.   When the only possible relevance of an out-of-
court statement is directed to the truth of the matters stated by a declarant, the
subject matter is classic hearsay even though the proponent of such evidence seeks
to clothe such hearsay under a nonhearsay label.   See § 90.801 (1)(c), Fla. Stat.
-21-

(1999);   Wright v. State, 586 So. 2d 1024 (Fla. 1991) (holding that where the only
relevance of an out-of-court statement is to prove the truth of the matter asserted it
is hearsay and is not rendered admissible when the non-hearsay purpose is not
relevant).
Second, facts concerning the purported determination by insurance
companies after investigation that this case involved a murder, not an accident,
were used by the State during closing argument for substantive support not
“sequence of events” purposes.   Thus, regardless of the purpose for which the
State now claims the testimony to have been directed, the evidence was in fact used
to prove the truth of the content rendering the content of the statement hearsay.
See Conley (holding that regardless of the purpose for which a party claims it has
offered evidence, when an out-of-court statement is used as evidence to prove the
truth of the matter asserted, such statement constitutes hearsay and falls within no
recognized exception).
Next, with the predicate of this Court having previously announced on
numerous occasions that the admission of this type of evidence is inherently
prejudicial, it must be determined if this issue has been properly preserved for
review and the standard of review applicable for proper determination. Initially,
although the sequence of events in the investigation leading to an arrest was not a
-22-

material issue in this case, the preliminary question directed to Detective Amabile as
to why an investigation was revived was not facially objectionable upon the basis of
clearly calling for hearsay testimony.   Had the detective simply referred to the event
(phone call or tip), without blurting out the hearsay content (insurance company
investigation determined that a murder had occurred), a hearsay objection would
not have been appropriate.   As we cautioned in Baird, if the relevance was only
directed to a sequence of events, the officer could state no more than the existence
of a “tip” or generally that information had been received.
The misdirection of the issue did not terminate with the detective’s initial
statement, but the State then immediately proceeded to connect the inadmissible
accusatory information to Keen’s brother and then immediately to Shapiro and then
to Keen.   As soon as the State proceeded to create a nexus between Keen’s
brother and the insurance investigation which had concluded that a “murder” had
occurred, an objection was voiced and a request for mistrial was submitted and
denied.
This Court has repeatedly admonished that the admission of this type of
evidence is inherently prejudicial as can be seen in Wilding, Conley, and Baird.
Here, the improper evidence was injected into the proceedings by the State’s
witness, an experienced detective, selectively volunteering inappropriate matters to
-23-

a jury.   Our analysis leads us to conclude that the events here are similar to those
considered by this Court in Czubak v. State, 570 So. 2d 925 (Fla. 1990), in which a
witness, in response to cross-examination by defense counsel, volunteered
inadmissible facts concerning a prior unrelated collateral crime and wrong of the
defendant by referring to the defendant as a prior convict.   As in the present case,
the defendant in Czubak did not receive an adverse ruling as to the initial
admissibility of the inappropriate evidence.   However, a motion for mistrial
submitted after the inappropriate evidence had been volunteered was denied just as
occurred in the present case.   In Czubak, this Court specifically stated the
admission of the evidence of an unrelated collateral crime (which consisted of
referring to the defendant as a convict) was presumptively harmful.   The Czubak
court then proceeded to reverse the conviction by applying the standard that such
error could be considered harmless only if it could be said beyond a reasonable
doubt that the verdict could not have been affected by the error.
In the present case, the inadmissible matter was injected by the State   through
volunteered testimony of an experienced detective.   The nature of the inadmissible
materials here consisting of very harmful hearsay evidence indicating that the
defendant was guilty of the crime charged is far more egregious and harmful than
the admission of material directed to an unrelated collateral wrong.   Additionally,
-24-

preservation of the issue for review in this case is identical to the posture of the
case in Czubak.   We conclude that the standard applied in Czubak should be
applied here under these particular circumstances.
The Czubak decision was predicated upon principles announced by this
Court in Straight v. State, 397 So. 2d 903 (Fla. 1981), and Castro v. State, 547 So.
2d 111 (Fla. 1989).   The Straight court recognized that the admission of evidence
concerning an unrelated collateral wrong is presumptively harmful and the Castro
court applied the DiGuilio10 harmless beyond a reasonable doubt standard of
review.   This Court applied these two principles of law in Czubak under
circumstances identical to those involved in the present case.   This trilogy of cases
applies here and would require a new trial.   We conclude that the State’s position
would create an unacceptable approach which would permit the State to receive the
benefit of volunteered hearsay testimony directed to the guilt of the defendant of the
crime charged.   This type of evidence simply should not have been permitted, and
when the motion for mistrial was made after such evidence came before the jury, a
mistrial should have been granted.   For these reasons, the State’s   analysis of the
hearsay issue cannot be accepted under these circumstances.
10  State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).
-25-

In this case, the jury could have legitimately relied on Shapiro's extensive
testimony, the circumstantial evidence of the two insurance policies on Anita Keen,
and Michael Moran's testimony.   However, we should not ignore the direct
relationship between the erroneous introduction of the out-of-court statements and
Shapiro's devastating testimony, especially where the credibility of the two
principals to the crime was the key issue in the case.   Keen, 504 So. 2d at 401
(acknowledging that "the real jury issue in this trial centered on the credibility of
Shapiro versus the credibility of Keen").   The out-of-court statements produced by
the State provided a strong foundation that bolstered and supported Shapiro's
detailed account of the planning and execution of Anita's murder.   In essence, the
State was able to present three witnesses for the price of one, with the bonus that
only Shapiro testified and was subject to cross-examination.   Patrick Keen never
took the stand, nor did the insurance company representatives who forwarded the
information that this was not a missing persons case, but a "murder."11
The State repeatedly reminded the jury during closing argument that claims
for life insurance benefits were pending against the insurance companies with Keen
11  Keen had filed a "presumption of death" action with the circuit court sometime in 1982 to
support his claim on the insurance policies.  As of the time of his arrest on August 23, 1984, the
insurance companies still had refused to pay Keen under the policies, presumably as a result of
insurance investigations.
-26-

having filed a petition to have Anita presumed dead to collect benefits.   This line of
argument, of necessity, inherently flowed from the State's theory of this case which
was predicated upon a homicide to obtain life insurance proceeds.   In the
concluding moments of the State's rebuttal argument, the jury's attention was again
directed to the investigating detective being advised by the insurance company that
Anita Keen's disappearance was a homicide, not an accident.   The closing
argument was certainly less detailed than Detective Amabile's testimony, but the
jury was again informed of the out-of-court statement that Keen had engaged in the
criminal activity for which he was being prosecuted.   Cf. Baird, 572 So. 2d at 908
(finding similar error harmless where challenged testimony was only elicited
prematurely, rebutted a defense contention, and was not brought to the jury's
attention again, and because State relied on properly admitted evidence).   The
closing argument, however brief, related the same highly prejudicial elements placed
before the jury by Amabile's testimony, i.e., the insurance companies obtained
information that Anita's death was a "murder" not an accident.   Although it was
unstated during the closing argument that the information came from Patrick Keen,
that point had been unambiguously made during Amabile's testimony.   This was
highly prejudicial with no countervailing probative value.   See Wilding, 674 So. 2d
at 119 (reciting general rule that "the investigation leading to the defendant's arrest is
-27-

not at issue in a criminal trial"). Thus, this evidence was hearsay, it was not relevant,
and its probative value was far surpassed by its prejudicial impact.   These factors
all lead to the inescapable conclusion that the conviction must be reversed and the
case remanded to the trial court.
WITNESS COMMENT REGARDING PRIOR TRIAL
Keen asserts that the trial court erred in denying his motion for mistrial after
state witness Maddie Genova mentioned the "last trial" in this case.   This claim is
without merit.
Our decision in Terry v. State, 668 So. 2d 954 (Fla. 1996), squarely
addresses this issue.   There, we reiterated that "motions for mistrial are addressed
to the trial court's discretion and should be granted only when necessary to ensure
that a defendant receives a fair trial."   Id. at 962.   We also noted that a party may
not invite error and then raise the issue on appeal.   See id.; accord Knight, 746 So.
2d at 432; San Martin v. State, 705 So. 2d 1337, 1347 (Fla. 1997).
In analyzing an earlier case,12 we reasoned that "our analysis focused on
whether the witness's answer was responsive to the question and whether counsel
could have anticipated the witness's response."   Terry, 668 So. 2d at 962.   In
affirming the trial court's denial of the defendant's motion for mistrial based on the
12  Czubak v. State, 570 So. 2d 925 (Fla. 1993).
-28-

detective's comments that he was a suspect in other armed robberies, we quoted
approvingly from the trial court's ruling.   See id. at 962-63.   The trial court correctly
framed the issue when it wrote that it needed to "determine if that was a fair
response to the question and whether or not [the detective] intentionally tried to get
something in front of this jury that he shouldn't have."   Id. at 963.
Here, the challenged comment arose during the following exchange:
Defense counsel:   Now, have you yourself ever worked into the
sale of policies?
Genova: No.
Defense counsel:   And Mr. Keen never collected any benefits on
this policy, did he?
Genova: That, I don't know.
Defense counsel:   Well, you said you have the whole Prudential
file there.   If you do, you would know that.
Genova: This was from his last trial.   This was not the complete
file up to date.
Defense Counsel:   you just said that you brought the whole file?
Genova: I didn't bring this in.
Additionally, throughout Shapiro's cross-examination, the defense made
exhaustive references to his prior testimonies.   Clearly, the average juror could
reasonably infer there had been prior proceedings in this case.   The fact that the
present trial was occurring in 1995, when it was absolutely clear that Anita died in
1981 with Keen being first incarcerated in 1984, certainly allowed jurors to
reasonably conclude that something had previously occurred in the case.   Genova's
-29-

brief, innocuous statement only referred to the "last trial," and did not mention
whether it was civil or criminal, its outcome, or any details of the prior trials.
Further, this situation is similar to that discussed in Norton v. State, 709 So. 2d 87,
94 (Fla. 1997), wherein we explained that "[a]lthough an unsolicited comment is not
'invited' where it is unresponsive to the question asked, the defense counsel in the
instant case, in an unsuccessful attempt to make a point on cross-examination,
merely received a direct answer in response to his question."   We conclude that
these circumstances did not warrant the severe remedy of a mistrial.   Accordingly,
we find no error in the denial of Keen's motion for mistrial.
PROHIBITION ON INTRODUCTION OF LETTER
Keen contends that the trial court erred in refusing to allow the introduction
of a letter which prosecution witness Michael Moran wrote to Judge O'Brien, the
trial judge in his Michigan case.   Keen argues that the letter was admissible13 as
direct evidence of Moran's motive for testifying; as a prior inconsistent statement;
and because the prosecution opened the door on direct examination.   This claim is
without merit.
13  While the trial judge refused to admit the letter into evidence, he did allow it to be marked as
court exhibit no. 4 for purposes of appellate review.
-30-

The relevant portion of the letter14 reads as follows:
The circumstances which involved me were not of
my making, nor were my actions to the circumstances
made with the intent to participate in crime, or injure, or
kill anyone.   I did not know for certain that a crime had
been committed until I was arrested in Iowa, in an area
that I am well known to police and other citizens.   After
my arrest and upon advise of my attorney, I not only
identified but caused the arrest and testified against the
real killer.   Because of my innocence I co-operated freely
and I refused a plea bargain which was offered for that
co-operation.
The circumstances which led to my being in
Michigan can be verified by the prosecutor, Mr. King and
Detective Sergeant Webb.   While I was incarcerated in
the Iowa State Pententiary I was extradited to Fort
Lauderdale, Florida as a prosecution witness.   I testified
against a man who had killed his nineteen year old
pregnant wife and then attempted to hire someone to kill
the States' chief witness.   While in Florida's custody,
Iowa paroled me without my knowledge.   After testifying,
Florida authorities learned that I had been paroled and
released me without provision or program.
Keen's main argument is that this letter revealed Moran's motive in testifying:
"He is going out of his way to mention his Florida testimony to the Michigan judge
prior to sentencing."   Appellant's Initial Brief at 33.   However, despite the fact that
14  We have reproduced the excerpt of the letter as written, leaving in the several grammatical,
punctuation, and spelling errors.
-31-

Moran was vague about some of the letter's contents,15 Keen cannot escape the
fact that Moran's letter to Judge O'Brien, the Michigan trial judge, was written in
1987.   Consequently, the letter can have no conceivable relevance to Moran's
motive for testifying in 1995, years after he was sentenced by Judge O'Brien to life
in prison without the possibility of parole.   Further, because of that fact, this is a
collateral issue where defense counsel was bound by Moran's answer to his
question of whether he testified against his codefendant in Michigan.   See Charles
W. Ehrhardt, Florida Evidence § 608.4 at 440 (1999 ed.) (observing that "[i]f the
witness has made a prior inconsistent statement concerning a collateral matter, the
cross-examining counsel may question the witness about the statement, but he or
she must 'take the answer'"); see also Caruso, 645 So. 2d at 394 (reiterating well-
established rule that "if a witness is cross-examined concerning a collateral or
irrelevant matter, the cross-examiner must 'take' the answer, is bound by it, and may
15  While Moran testified on cross-examination that he was not a witness against his
codefendant in the Michigan case, Ted Scafey, the letter states that "I not only identified but caused the
arrest and testified against the real killer."  Again, while he did not associate the "real killer" with Scafey,
Moran made clear later in his letter that he waited in the van while Scafey got out and conducted what
turned out to be an armed robbery and murder.  Moran wrote that, "Ted returned about seven minutes
later and as he entered the van he said, quote, 'did you hear that cap go off.  I [Moran] said what the
f___ are you talking about and Ted said I just had to waste a dude but at least I have more money now
than I did before I went in the joint.'"
-32-

not subsequently impeach the witness by introducing extrinsic evidence to
contradict the witness on that point").
COLLATERAL OFFENSE AND OPINION EVIDENCE
Keen next argues that the trial court erred in admitting improper collateral
offense evidence-the tape-recorded conversation he had with Shapiro.   We find
this claim procedurally barred and, even assuming it was properly before us, it is
without merit.
First, Keen acknowledges that he did not object to the introduction of the
taped conversation into evidence.   Consequently, the State is correct that this claim
is procedurally barred because Keen failed to raise a contemporaneous objection.
Norton, 709 So. 2d at 94.   Thus, Keen can only resort to claiming fundamental
error, "defined as error that ‘reaches down into the validity of the trial itself to the
extent that a verdict of guilty could not have been obtained without the assistance
of the alleged error.'"   Urbin v. State, 714 So. 2d 411, 418 n.8 (Fla. 1998) (quoting
Kilgore v. State, 688 So. 2d 895, 898 (Fla. 1996)).   Under that stringent standard,
we find no fundamental error.
Moreover, we would find no merit in this claim even if it had been properly
preserved for appellate review.   Keen's contention centers on the following excerpt
of the taped conversation between him and Shapiro, with Shapiro stating: "And in,
-33-

in light of your past history, even she [Keen's girlfriend] believes that you're guilty."
Keen argues that the comments about his "prior history" and that history causing
his girlfriend to believe in his guilt constituted improper collateral offense evidence.
We disagree because Shapiro's testimony was the centerpiece of the State's case
against Keen.   It was an exhaustive, first-person account of the planning and
execution of a murder, compelling in both detail and volume.   As such, if accepted
by the jury, it was more than enough to support a guilty verdict and precludes a
fundamental error finding on this claim.
Further, the "similar evidence" which Keen refers to as triggering a reversal in
his first direct appeal occurred when Keen was cross-examined while testifying on
his own behalf.   See Keen, 504 So. 2d at 401.   He was asked, "Didn't you describe
to Ken Shapiro how you and Patrick Keen had tried to beat Patrick Keen's wife to
death with a rock in North Carolina in 1973?"   Id.   We reversed because "this
improper question was so inflammatory and prejudicial that it destroyed Keen's
right to a fair trial."   Id.   Additionally, this was done after Keen had admitted to a
prior felony conviction on direct examination, which had nothing to do with the
1973 incident in North Carolina.   See id. at 402 n.4.   That sequence of events is
much more egregious than the incident complained of here.
SPECIAL JURY INSTRUCTION ON JURISDICTION
-34-

Keen's next claim of error is that the trial court gave a one-sided jury
instruction on jurisdiction that improperly highlighted the State's theory.   This claim
is without merit.
The jury instruction fully comports with our holding in Lane v. State, 388 So.
2d 1022, 1029 (Fla. 1980).   The instruction explained what was required to find that
territorial jurisdiction was proper in this case, and simply used "premeditation" as
an example.   Notwithstanding the challenge, the evidence certainly suggested that
premeditation occurred in Florida, as Shapiro provided extensive testimony on that
element of the crime.
RESTRICTED CROSS-EXAMINATION OF STATE WITNESS
Keen next argues that the trial court erred in prohibiting him from cross-
examining Moran concerning his intent to invoke the Fifth Amendment.   We find
this issue is moot because whatever merit the claim may have, Moran did testify for
the State against Keen, and his testimony inculpated Keen in his design to kill
Shapiro.
As noted in Keen's third claim, Moran is under a sentence of life without the
possibility of parole in Michigan.16   Therefore, any reluctance or unwillingness to
16  Ironically, Keen notes this fact in his brief. Appellant's Initial Brief at 41.  In so doing, he
undercuts his argument in claim (3) regarding Moran's motive for testifying in this case.
-35-

testify on his part was completely irrelevant because   he did testify and his
testimony had no effect on his ongoing sentence of life imprisonment in Michigan.
Further, as the State correctly presents, defense counsel cross-examined Moran
about his reluctance to testify and Moran conceded that he did not want to testify.
MOTION TO SUPPRESS STATEMENTS TO POLICE
Keen next asserts that the trial court erred in denying Keen's motion to
suppress the statements he made to police.   This claim is without merit.
We fully addressed this issue in Keen's first direct appeal and found it to be
without merit.   Keen, 504 So. 2d at 399-400.   While Keen makes much of our later
decision in Owen v. State, 596 So. 2d 985 (Fla. 1992), in that case we only
disapproved of the following reasoning, 504 So. 2d at 400:   "Keen's sixth
amendment claim fails because at the time the statement was made formal charges
had not been filed against him and, therefore, adversary proceedings had not yet
commenced."   See 596 So. 2d at 990 (receding from Keen "to the extent it is
inconsistent with the Sixth Amendment analysis above").   The salient passage from
that analysis was that "[a]lthough adversary judicial proceedings may commence in
a number of ways-via 'formal charge, preliminary hearing, indictment, information,
or arraignment,' [Kirby v. Illinois,] 406 U.S. [682,] 689 [(1972),] the federal Court
and commentators are in agreement that such proceedings clearly have begun when
-36-

an accused is placed in custody, haled before a magistrate on a warrant or formal
complaint, and then tentatively charged with a particular crime at this initial
appearance or 'arraignment.'" Owen, 596 So. 2d at 988-89.   We further reasoned
that "[o]nce the right attaches, an accused is entitled to assistance of counsel at
each 'critical stage' of the prosecution, including police questioning."   Id. at 989.
Consequently, "[w]here the right has attached and been invoked, any subsequent
waiver in the absence of counsel during police-initiated questioning is invalid."   Id.
(emphasis added).
In rejecting this same argument on various bases in the first direct appeal, we
made three distinct references to the fact that Keen "was advised on four separate
occasions of his right to remain silent and his right to counsel, and he signed a
waiver before giving a statement."   Keen, 504 So. 2d at 400 (emphasis added).
Although we recognize that the specific reasoning in our earlier denial of Keen's
sixth amendment claim is no longer valid, we find that fact immaterial because it is
undisputed that Keen never invoked his right to counsel, despite numerous
opportunities to do so.   Accordingly, we reaffirm our 1987 disposition of this
issue.
MOTION TO DISMISS THE INDICTMENT
-37-

Keen claims that the trial court erred in denying his motion to dismiss the
indictment on the ground that it was based on perjured testimony.   He argues that
Patrick Keen testified to the grand jury that he, Michael Keen, had made inculpatory
statements about this offense. Keen further contends that because Patrick Keen
subsequently recanted this testimony under oath, and was convicted of perjury
arising out of this testimony, any indictment based on his brother's initial, allegedly
perjured testimony violates his due process rights.   This claim is without merit.
Both parties properly cite Anderson v. State, 574 So. 2d 87, 91 (Fla. 1991),
for the proposition that "due process is violated if a prosecutor permits a defendant
to be tried upon an indictment which he or she knows is based on perjured, material
testimony without informing the court, opposing counsel, and the grand jury."
However, after reviewing Patrick Keen's grand jury testimony, his subsequent
recantation in a sworn statement to assistant state attorney William Dimitrouleas,
and the trial judge's order denying Keen's motion to dismiss the   indictment, we
conclude that no due process violation occurred in presenting the indictment
against Keen.
First, the State is undoubtedly correct that while Patrick Keen was convicted
of perjury for giving inconsistent statements in an official proceeding, "[n]o
evidence has ever been presented to prove which of the statements was perjured
-38-

testimony, and no decision has ever been entered making such a finding."
Appellee's Answer Brief at 51.   Defense counsel did not dispute this assessment in
the motion hearing on this issue, acknowledging that "we know one version is true
and one version is false . . .                                                          . You have a fifty-fifty chance that the indictment was
predicated upon perjury."   Even taking those statements at face value, Keen did not
suffer a due process violation as contemplated in Anderson.
Second, and most persuasively, the trial judge's order observes that each
count of the seven-count information charging Patrick Keen with perjury in an
official proceeding recites the same accusation that "on the 18th day of May, A.D.,
1987 . . . [Patrick Keen] did unlawfully and feloniously make a false statement while
under oath in an official proceeding in regard to a material matter, to wit:            .”
Consequently, the trial judge ruled that Patrick Keen was "charged and convicted of
perjury based upon the sworn statement in which he recanted his testimony, not the
testimony itself, ergo this court cannot find that any portion of his [grand jury]
testimony was false."                                                                   (Emphasis added.)   Clearly, this finding belies any claim
Keen may have that his indictment was based on perjured testimony.   It is also
completely in accord with our caselaw.   We recently reiterated that "[i]n assessing
recanted testimony, we have stressed caution, noting that it may be unreliable and
trial judges must 'examine all of the circumstances in the case.'" Robinson v. State,
-39-

707 So. 2d 688, 691 (Fla. 1998) (quoting State v. Spaziano, 692 So. 2d 174, 176
(Fla. 1997)).   Here, the trial judge did precisely that.
Finally, the sequence of events supports the State's argument.   Patrick
Keen's grand jury testimony occurred on September 12, 1984.   Keen was convicted
of first-degree murder and sentenced to death in 1985.   This Court reversed and
remanded for a new trial on March 19, 1987.   The opinion noted that Shapiro first
gave his damning version of Keen's actions to detectives Amabile and Scheff in
August 1984.   Appended to that sentence was a footnote that stated, in part, "It
appears that appellant's brother, Patrick Keen, contacted a representative of one of
the companys [sic] who insured Anita Lopez Keen's life, offering to tell the 'true'
story of her death in exchange for a finder's fee.   The representative then contacted
the Broward County authorities who in turn contacted Shapiro."   Keen, 504 So. 2d
at 398 n.1.   The opinion also stated that "the real jury issue presented in this trial
centered on the credibility of Shapiro versus the credibility of Keen."   Id. at 401.
Therefore, it appears more than coincidental that slightly less than two
months later, on May 18, 1987, Patrick Keen made his statement to Dimitrouleas
that he lied in front of the grand jury; that Keen told him his wife had too much to
drink on the boat and “fell off the boat because the ladder [runs] right alongside the
side of the boat”; that this version of events was the only story Keen provided as to
-40-

Anita's disappearance; that Keen did not tell him he had to hurry up his plan before
Anita gave birth; that Keen never told him that he married Anita for the explicit
purpose of collecting insurance money after murdering her; and that detective
Amabile told him what to say before the grand jury.   For the reasons expressed
above, we find no error in the trial judge's ruling on this issue.
CROSS-EXAMINATION ON DETECTIVES’ INTERROGATION TACTICS
Keen's next claim of error is that the trial court improperly restricted his
cross-examination of detectives Amabile and Scheff regarding prior discipline for
allegedly improper interrogation techniques in other cases.   We find no merit in this
claim.
At the outset, this claim appears to be an attempt to relitigate the issue in
claim (9) regarding Keen's motion to suppress his statements made to police.   The
essence of Keen's argument is that the trial court erred in precluding him from
"cross-examining Officers Amabile and Scheff about being disciplined for
improper interrogation techniques in other cases . . . [because] [t]he police conduct
in this case was an important issue below."   Appellant's Initial Brief at 56.
First, as noted in claim (9), this issue was fully litigated and determined in
Keen's first direct appeal.   Keen, 504 So. 2d at 399-400.   The "police conduct" in
-41-

this case was closely examined and no improper activity was found.   Therefore, the
basic premise of Keen's argument has no factual basis.
Second, as a general rule, an appellate court "cannot speculate what any
proffered testimony would have been in determining whether it was error not to
allow it."   Stokes v. State, 658 So. 2d 1159, 1160 (Fla. 2d DCA 1995) (quoting
Williams v. State, 600 So. 2d 524, 525 (Fla. 2d DCA 1992)).   Further, this Court
has explained that reverse Williams-rule evidence "requires the same showing of
relevance as evidence offered by the prosecution."   Kimbrough v. State, 700 So.
2d 634, 637 (Fla. 1997); see also Ehrhardt, supra, § 404.9 at 180-81.   That is,
section 90.404(2)(a), Florida Statites (1995), applies without regard to whether the
evidence is offered by the State or a criminal defendant.   See id. at 180.   The
section provides:
Similar fact evidence of other crimes, wrongs, or acts is
admissible when relevant to prove a material fact in issue,
such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or
accident, but it is inadmissible when the evidence is
relevant solely to prove bad character or propensity.
(Emphasis added.)
In this case, Keen proffered no facts sufficient to show relevance to a
material fact in issue.   Here, Keen's motion only stated that he wished to ask the
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detectives about "discipline they received for improper interrogation techniques in
another homicide case."   In ruling on the motion, the trial judge wrote:
As offered by the defendant in this motion, his request to
cross-examine the officers based upon this collateral
disciplinary matter is an attempt to introduce Reverse
Williams Rule evidence.   He is entitled to introduce such
evidence subject to the same strict standards of relevancy
as when it is offered by the state

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