Dobbert v. State

• Decision Date: 14 January 1976
• Docket Number: No. 45558,45558
• Citation: 328 So.2d 433
• Parties: Ernest John DOBBERT, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 433

328 So.2d 433

Ernest John DOBBERT, Jr., Appellant, v. STATE of Florida, Appellee.

No. 45558.

Supreme Court of Florida.

Jan. 14, 1976.

Rehearing Denied April 5, 1976.

Louis O. Frost, Jr., Public Defender, James O. Brecher and Steven E. Rohan, Asst. Public Defenders, for appellant.

Robert L. Shevin, Atty. Gen., Harry L. Shorstein, Sp. Asst. Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.

PER CURIAM.

Appellant was indicted on two counts of murder in the first degree and two counts of child torture in that he did commit various assaults upon Kelly Ann Dobbert including kicking, chocking, and torturing her with his hands and feet and by use of other instruments and weapons and that from a premeditated design to effect death, he inflicted mortal injuries upon Kelly Ann which resulted in her death; in that he committed various assaults upon Ryder Scott Dobbert and from premeditated design to effect Ryder Scott's death, he inflicted mortal injuries resulting in Ryder Scott's death; in that he willfully tortured, mutilated, cruelly, wantonly and maliciously punished and tormented Honore Elizabeth Dobbert, a child, five years of age, and in committing battery upon her did intentionally and knowingly cause great bodily harm, permanent disability and permanent disfigurement to Honore; and in that he willfully tortured, mutilated, cruelly, wantonly, maliciously, and unlawfully punished and tormented Ernest John Dobbert, III, which caused serious bodily harm, permanent disability and permanent disfigurement to Ernest John, III, a child of eleven years of age. Appellant moved to dismiss the indictment which motion was denied as to counts one and two charging murder in the first degree but was granted as to counts three and four charging child torture. Subsequently, the Grand Jury returned an amended indictment charging two counts of murder in the first degree and two counts of child torture. A motion by appellant to sever counts one and two from the indictment was denied. Appellant filed a motion and affidavit for change of venue which alleged, inter alia, that defendant stands accused of acts inherently odious and subject to inflammatory exploitation by the press and that as a consequence of extensive publicity, the possibility of prejudice to him was great. The trial court, before ruling on a change of venue, entered an order which he stated was binding upon everyone occupying an official position having to do with this case including the State Attorney, and all of his assistants and employees, the Sheriff and all of his deputies and employees, the Clerk of the Circuit Court and all of his deputies and employees, the public defender and all of his assistants and employees, the defendant, all of the officers of this court, the witnesses for the State and the defense and anyone else connected with this case. Thereby, he ordered that none of the named persons will release any statement about this case to any news media at any time before or during this trial until it shall have been completed and disposed of. After hearing, he then took the motion for change of venue under advisement until after jury selection was attempted.

Pursuant to Rule 3,152(a)(2)(i), F.Cr.P.R., appellant moved to sever each of the four counts of the indictment, which motion was denied. The jury was selected, after which the judge denied the motion for change of venue. A lengthy trial was held, after which the jury returned verdicts of guilty of murder in the first degree of Kelly Ann Dobbert, guilty of murder in the second degree of Ryder Scott Dobbert, guilty of child torture of Ernest John Dobbert, III, and guilty of child abuse of Honore Elizabeth Dobbert. The jury returned an advisory sentence finding that sufficient aggravating circumstances did not exist to justify a sentence of death and that sufficient mitigating circumstances exist to warrant imposition of a life sentence. Motion for new trial was denied and defendant was adjudicated guilty of each of the four counts of which he was found guilty.

The trial court imposed the maximum penalties for the crimes of murder in the second degree, child torture, and child abuse, which sentences are to run consecutively and total forty-six years; ¹ and after closely examining and writing extensive findings as to each of the elements of aggravation and/or mitigation set out by law, the trial judge imposed the sentence of death for the first degree murder. He analyzed each individual mitigating and aggravating factor in detail and gave full explanation for his decision to imposed the death penalty. Because of their importance to the decision of this cause, the findings enumerated by the trial judge must be set out herein. Relative to the mitigating circumstance of whether the defendant has no significant history of prior criminal activity, the trial court found as follows:

'FACT:

That on 9--20--65 the Police of St. Francis, Wisconsin, arrested the defendant for 'Battery--Child', in that he 'struck Ernest John Dobbert, III, age 5 years, several times causing a black eye, a large bruise on the upper forehand and red swollen cheeks and nose.'

'The Judge of that Court sent the defendant to a Hospital for mental observation and placed him on one year probation.

'FACT:

'That on 11--17--67 the Police of St. Francis, Wisconsin, arrested the defendant on the charge of 'Assault', in that instance the report states that the defendant 'disciplined his son, Ernest John Dobbert, III, for poor grades by burning his hands over an open flame on a gas range.'

'The defendant was found guilty and incomprehensibly the Judge of that Court only fined the defendant $50.00 and imposed no further punishment. This was only two years after he had been placed on probation for battery on Little John in 1965.

'FACT:

'The evidence and testimony of John III and neighbors at the trial and the defendant's own written statement was that he was constantly beating the children with fists, boards and other objects and was seen kicking, chocking and beating Kelly Ann Dobbert, Ryder Scott Dobbert, Ernest John Dobbert, III and Honore Elizabeth Dobbert. The neighbors made their complaints to the Police and Social Welfare Agencies, but the defendant was able to avoid a thorough investigation of the charges by deceit, lies and by the murder of Kelly Ann and Ryder Scott Dobbert.

'CONCLUSION:

'There is no mitigating circumstance under this paragraph because there was a significant history of prior criminal activity towards the children in both Wisconsin and Jacksonville, Florida.'

Relative to the mitigating circumstance of whether the murder was committed while defendant was under the influence of extreme mental or emotional disturbance, the trial judge determined:

'FACT:

The defendant did not testify, however, his written statement did indicate that he thought he was under an emotional strain. However, that statement was more of a recitation of torture of the children than the establishment of any emotional strain.

'FACT:

The defendant was examined by two psychiatrists and a psychologist prior to trial and found to be sane and competent at the time of examination and at the time of the time of the crimes. The psychiatrists both stated that at the time of the crime he understood the nature, quality and wrongfulness of his acts, and knew right from wrong and was able to adhere to the right. Neither the psychiatrists or psychologist found or reported that he was under the influence of extreme mental or emotional disturbance at the time of the crimes.'

and concluded that there is no mitigating circumstance under this paragraph. The trial judge determined that the mitigating factor of whether the victim was a participant in the defendant's conduct or consented to the act did not exist since 'The defendant murdered his own nine year old daughter, Kelly Ann Dobbert by continuous beatings, kicking, hitting with fist and other objects, choking, sewing up her cuts with needle and thread and othet torture and depriving her of medical care and finally murdered her, placed her body in a plastic garbage bag and buried her in an unknown and unmarked grave.' As to the mitigating circumstance of whether the defendant was an accomplice in the murder committed by another person, the trial judge found:

'FACT:

'The evidence at the trial showed that defendant alone did the murder. It showed that his wife was in jail in Wisconsin and his Mother was also in Wisconsin and that he was the only adult living in the home. The facts also proved that defendant locked the children inside the home during his absence and confined them to the house when he was present with them and that he actively prevented outsiders, by lies, and subterfuge, from entering the home. The only evidence of torture, beatings and murder were those done by the defendant alone.'

As to question of whether defendant acted under extreme duress or under the substantial domination of another, the trial court determined:

'FACT:

'No element of duress was ascertained by the psychiatrists as set forth in paragraph B. above. There is absolutely no testimony of duress in any degree which would justify the hideous crimes of which he was convicted. If, he suffered duress over the care and welfare of the children, there was help available but he turned away both Police and Family Services Workers before the murder of Kelly Ann and Ryder Scott Dobbert by lies and deception and by pretending all in the home were well and normal.

'FACT:

'There was no evidence that defendant was under substantial domination of another person. His wife was alternately in jail in Jacksonville, and Wisconsin for worthless checks and his mother was also in Wisconsin and he had no other relative in Jacksonville. While his wife was in the City Prison Farm in Jacksonville she caused the police to visit the Dobbert home to see to the welfare of the children because on a visit the defendant told her...