Spinkellink v. State

• Decision Date: 19 February 1975
• Docket Number: No. 44805,44805
• Citation: 313 So.2d 666
• Parties: John A. SPINKELLINK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 666

313 So.2d 666

John A. SPINKELLINK, Appellant, v. STATE of Florida, Appellee.

No. 44805.

Supreme Court of Florida.

Feb. 19, 1975.

Rehearing Denied May 8, 1975.

Brian T. Hayes, Monticello, and Ken Davis, Tallahassee, for appellant.

Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appellee.

BOYD, Justice.

This cause is before us on direct appeal from the Circuit Court, Leon County. Appellant was convicted of murder in the first degree and was sentenced to death, thereby giving this Court jurisdiction of this appeal. ¹

The pertinent facts appears as follows. The 24 year old Appellant picked up Joseph J. Szymankiewicz, a hitchhiker, while traveling in the mid-west; both men had criminal records, and both were heavy drinkers. During their travels Appellant learned first hand of Szymankiewicz's vicious propensities when the latter forced him to have homosexual relations with him, when the latter played 'Russian Roulette' with him and boasted of killing a fellow inmate while in prison. After checking into a motel in Tallahassee, Appellant discovered that his traveling companion had relieved him of his cash reserves. Appellant concluded that it would be wise to continue his journey without Szymankiewicz, and, having had his car washed, Appellant admits that he returned to the motel to remove his personal belongings and to force Szymankiewicz to return the money stolen from him. On his return to the motel, he picked up one Frank Bruum, another hitchhiker, and agreed to take him as far as New Orleans. Appellant's testimony is of interest at this juncture:

'We started back toward the motel and I told this guy, I said, 'If you don't mind waiting a little ways from the motel, I think it would be better, because there is another guy in the motel room that is pretty drunk. He's going to be mad because I was gone this long.' And I didn't mention nothing to the hitchhiker about Joe taking my money or hiding my money. And--well, I dropped him off a little ways from the motel And I told him if he should happen to hear a gunshot or something, It's in the Ponce de Leon Motel in No. 4. And so what I intended on doing was carrying the (Joe's) gun on me and going into the motel room, and if I had to, by pointing the gun I was going to pick up my baggage and leave that motel room.' (Emphasis supplied.)

He also testified that he hid the pistol in his clothing; and while admitting that he had fired the gun that killed Szymankiewicz, Appellant sought to show mitigating circumstances by showing, first, that he was carrying the gun because he was afraid for his own life, and, secondly, that the gun discharged during a fight between the two. The evidence shows that, although Szymankiewicz was shot once in the head, he died from a second bullet fragmenting the spine and rupturing the aorta. It is undisputed that Appellant prepared a cover story to delay discovery of the body, giving him the opportunity to leave with Bruum.

Less than one week later Appellant, along with two others, was in custody for suspicion of armed robbery in Buena Park, California. One of the other suspects was John Moore, a hitchhiker who had been picked up in Texas by Appellant (alias Derek or Derk) and another known to Moore only as Frank. The California police learned that all three had signed the apartment lease, Moore signing as 'uncle' to 'Derek' and Frank; the authorities, having secured Moore's verbal permission to search the apartment and having the use of his key, discovered an intoxicated Frank Bruum at the apartment and placed him under arrest for suspicion of armed robbery. A search ensued, and in an open kitchen drawer was found the gun that later proved to be the murder weapon in Szymankiewicz' death.

After their California arrest, Bruum and Appellant were returned to Florida and tried for first degree murder. The jury returned a verdict of guilty as to Appellant and not guilty as to Bruum. After a subsequent mitigation trial, the jury brought in its advisory verdict recommending that the court impose a sentence of death on Appellant. The trial judge, having considered this advisory verdict, sentenced Appellant to death, filing the appropriate findings of facts. This appeal followed.

Initially, Appellant challenged the constitutionality of Sections 782.04 and 921.141, Florida Statutes, under which he was convicted, but he waived this point on appeal in light of this Court's ruling in State v. Dixon. ²

Next, Appellant challenges the correctness of the court's ruling permitting into evidence the gun seized during the warrantless search of his California residence. Appellant contends that the search was not incident to a lawful arrest; ³ it appears, however, that this position is based on the belief that 'the gun was found in (Appellant's) bedroom in a drawer'. Since co-defendant Bruum, who appeared 'high', was arrested in the living area common to all tenants and since he was placed in a chair (albeit, handcuffed) in the dining area only eight feet from the common kitchen, Appellant's objection would be understandable had the gun in fact been removed from a drawer in his private bedroom, which was some twenty-five feet away from Bruum. In light of the fact, however, that the record clearly shows the gun to have been found in an open drawer in the common kitchen, it would appear to fall into the 'plain view' exception which permits a warrantless seizure. ⁴ This Court has held that the lower court properly denied a defendant's motion to suppress certain evidence when it was taken from an area not exclusively used by the defendant, especially when consent was given to the search by a cotenant. ⁵ While it is true that the drawer was open only about eight inches, through that opening the investigating officer could easily see a hypodermic needle with a yellow plunger attached, which justified his opening the drawer completely, thereby exposing the gun. Furthermore, since Bruum was only a few feet away from the drawer containing the gun, it falls within the 'search incident to arrest' exception recognized in Chimel, supra, ⁶ whereby it has been held reasonable for the arresting officer to search the area into which an arrestee might reach in order to grab a weapon or evidentiary items. In Chimel, the court specifically observed that '(a) gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested.' ⁷ We find the trial court was correct in holding the search and seizure to be constitutional.

The next point for determination is Appellant's assertion that the court erred in denying his motion for acquittal, which was based on the alleged lack of evidence of the requisite element of premeditation. It is Appellant's position that, while he shot the deceased, it was in self defense. Admittedly, the evidence clearly shows that the deceased was an individual of vicious temperament and that Appellant was justified in concluding that he would do well to sever their relationship, continuing his odyssey without his companion. Nevertheless, the evidence also is clear that Appellant was alone in his car away from the motel with the opportunity for leaving Szymankiewicz and did not do so; instead, he voluntarily returned to the motel with the deceased's gun hidden, telling Bruum 'if he should happen to hear a gunshot or something, it's in the Ponce de Leon Motel in No. 4'. Additionally, although Appellant claims the gun was fired during a violent, life-or-death struggle with deceased in which he was fighting for his life, the firearms examiner testified that the laboratory test-firing reproduced the pattern of powder residue found on the outer surface of the pillow case so as to indicate that the weapon was fired alongside the pillow rather than through it. Furthermore, Appellant did not contradict the evidence that he established a cover-up which enabled him to flee the scene of the crime with Bruum, saying merely that he remembers nothing after the first shot was fired. The rule is that, when a suspect endeavors to evade prosecution by flight, such fact may be shown in evidence as one of the circumstances from which guilt may be inferred. ⁸

Keeping these facts in mind, we note that, when Appellant moved for an acquittal, he admitted the facts adduced in evidence and every conclusion favorable to the Appellee which is fairly and reasonably inferable therefrom. ⁹ Additionally, it has been held that premeditation may be established by circumstantial evidence; in Larry v. State, ¹⁰ this Court said:

'Premeditation, like other factual circumstances, may be established by circumstantial evidence. Evidence from which premeditation may be inferred includes such matters as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted. It must exist for such time before the homicide as will enable the accused to be conscious of the nature of the deed he is about to commit and the probable result to flow from it in so far as the life of his victim is concerned. No definite length of time for it to exist has been set and indeed could not be. . . .'

Even before that case, this Court had stated that:

'A premeditated design to effect the death of a human being is a fully formed and conscious purpose to take human life, formed upon reflection and deliberation, entertained in the mind before and at the time of the homicide . . . If the design to take human life was formed a sufficient length of time before its execution to admit of some reflection and deliberation on the part of the party entertaining it, and the party at the time of the execution of the intent was fully conscious of a settled and fixed purpose to take the life of a human being, and of the consequence of carrying...