Gardner v. State, 45106

• Decision Date: 26 February 1975
• Docket Number: No. 45106,45106
• Citation: 313 So.2d 675
• Parties: Daniel Wilbur GARDNER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 675

313 So.2d 675

Daniel Wilbur GARDNER, Appellant, v. STATE of Florida, Appellee.

No. 45106.

Supreme Court of Florida.

Feb. 26, 1975.

James A. Gardner, Public Defender, and Charles H. Livingston, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.

PER CURIAM.

This cause is before us on direct appeal from a conviction of murder in the first degree, and a sentence of death imposed upon appellant in the Circuit Court in and for Citrus County. We have jurisdiction pursuant to Article V, Section 3(b)(1), Constitution of Florida (1973).

On August 22, 1973, the Grand Jury of Citrus County returned an indictment against defendant charging him with first degree murder in that he on June 30, 1973, in Citrus County did unlawfully and from a premeditated design kill Bertha Mae Gardner, a human being, by striking her with a blunt instrument and did inflict in and upon the body of Bertha Mae Gardner a mortal wound from which she died.

After trial, the jury returned a verdict of guilty as charged in the indictment. After a post-conviction sentence advisory hearing, the jury returned an advisory sentence recommending that a life sentence be imposed. The trial judge adjudicated defendant guilty. After carefully considering and weighing all the evidence presented during the trial and sentencing proceedings, the trial judge, pursuant to the safeguards afforded by Section 921.141, Florida Statutes, entered written detailed findings of fact in support of the death penalty specifically stating as follows:

'(T)he undersigned concludes and determines that aggravating circumstances exist, to-wit: The capital felony was especially heinous, atrocious or cruel; and that such aggravating circumstances outweighs the mitigating circumstances, to-wit: none; and based upon the records of such trial and sentencing proceedings makes the following findings of facts, to-wit:

'1. That the victim died as a result of especially heinous, atrocious and cruel acts committed by the defendant, the nature and extent of which are reflected by the testimony of Dr. William H. Shutze, District Medical Examiner of the Fifth Judicial Circuit of the State of Florida, as follows:

'(a) At least one hundred bruises upon her head, both eyes, nose, abdomen, arms, both breasts, chest, back, things and legs.

'(b) Large patches of healthy hair pulled from her head as a result of her hair being grabbed, leaving bald spots.

'(c) Abrasions, bruises and contusions to the head as a result of her hair being grabbed and her head pushed against the wall or floor.

'(d) Massive hemorrhage of the scalp, small hemorrhages under the covering of the brain, and contusions of the nose.

'(e) Massive hemorrhage of the pubic area, including the inner surfaces of the thigh and the labia of the vulva.

'(f) Bruised and swollen external genitalia.

'(g) Hemorrhage in and around the right adrenal gland and right kidney.

'(h) A large laceration on the perineum extending from the posterior part of the vagina toward the anus.

'(i) Large tears inside the vagina from the outside entrance all the way to the back as far as it could go, caused by a broom stick, bar or bottle.

'(j) A large laceration or tear of the entire right side of the liver.

'(k) The peritoneal cavity or bone located in the public area in the lower part of the body, was broken up into small pieces by blunt injury such as being stomped on.

and based thereon concludes that the death sentence should be imposed upon said defendant.'

We have listened carefully to oral argument, examined and considered the record in light of the assignments of error and briefs filed and we have also, pursuant to Rule 6.16(b), Florida Appellate Rules, reviewed the evidence to determine whether the interests of justice require a new trial with the result that we find no reversible error is made to appear and the evidence in the record before us does not reveal that the ends of justice require that a new trial be awarded.

Upon considering all the mitigating and aggravating circumstances and careful review of the entire record in the cause, the trial court imposed the death penalty for the commission of the afore-described atrocious and heinous crime.

Accordingly, the judgment and sentence of the Circuit Court are hereby affirmed.

It is so ordered.

ADKINS, C.J., and ROBERTS, McCAIN, DEKLE and OVERTON, JJ., concur.

ERVIN (Retired), J., concurs in part and dissents in part with opinion with which BOYD, J., concurs.

ERVIN (Retired), Justice (concurring in part, and dissenting part):

Appellant attacks the constitutionality of the death penalty as re-enacted in Florida in the wake of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), a decision whose ultimate impact remains to be seen. As previously expressed in my dissenting opinions in State v. Dixon (Fla.1973), 283 So.2d 1, and Spinkellink v. State, 313 So.2d 666, I have weighed Florida's new death penalty statutes, Sections 921.141, 782.04, and 775.082, F.S., in the light of Furman and I find them constitutionally wanting.

My views of our present death penalty statutes are no less strong in this case than in those previously decided or yet to be decided thereunder; however, for fear of being unduly repetitious with the same futility as before, I forego revisiting the constitutional issue but hold the belief that ultimately higher judicial authority will find the statutes unconstitutional prior to execution of this and other death sentences similarly imposed.

As required by Rule 6.16(b), F.A.R., I have reviewed the record below in its entirety and, notwithstanding my position with respect to the constitutionality of our death penalty statutes, I am compelled to conclude that Appellant's sentence should be commuted by this Court to life imprisonment on other grounds. The essential facts of the case are not disputed by the parties; however, they take issue with their application in determining Appellant's sentence.

Appellant first contends the trial judge erred in considering a presentence investigation report containing matter not properly admissible as aggravating circumstances specified in Section 921.141(6). ¹ The record shows that prior to imposing sentence upon Appellant the trial judge ordered a presentence investigation report pursuant to Rule 3.710, Cr.P.R. Appellant argues that in considering the PSI report the trial judge vitiated the sentence by taking the process out of the bounds of Section 921.141, more specifically that Section 921.141 limits the judge to consideration of the aggravating circumstances therein enumerated and that the PSI report included matters which were detrimental to Appellant yet were not among the aggravating circumstances in the statute.

Appellant attacks the portions of the PSI report pertaining to prior arrests and convictions and court officials' statements. The prior arrests and convictions section included arrests over a ten-year period, none of which resulted in a conviction 'of another capital felony or of a felony involving the use or threat of violence to the person,' an aggravating circumstance provided in Section 921.141(6)(b). The court officials' statements section contained the following entry:

'Law enforcement authorities are quite strong in their opinion of the subject, they consider the subject a menace to society. They feel he should not be let to roam the streets for what he did to his wife. They stated that the subject had a long line of assault charges on his wife, that should be taken into count (sic) about this subject.'

Neither is such opinion one of the aggravating circumstances specified in Section 921.141(6).

While questioning the...