Songer v. State
| Decision Date | 07 September 1978 |
| Docket Number | No. 52642,52642 |
| Citation | 365 So.2d 696 |
| Parties | Carl Ray SONGER, a/k/a Robert Berry, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Jack O. Johnson, Public Defender, W. C. McLain, Asst. Public Defender, Bartow, for appellant.
Robert L. Shevin, Atty. Gen., Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
This case is before the Court for further review after remand of the imposition of a death sentence. In the original trial proceedings, the appellant was found guilty of first degree murder and sentenced to death by the trial judge after the jury returned an advisory recommendation of death. The conviction and sentence were previously affirmed by this Court, Songer v. State, 322 So.2d 481 (Fla.1975), but the case was remanded to the trial court for resentencing as directed by the United States Supreme Court, Songer v. Florida, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977), because of apparent noncompliance with the required guidelines announced in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).
At the resentencing hearing of August 17, 1977, appellant's counsel requested that another jury be impaneled by the trial court to hear testimony and make a sentence recommendation. He further requested that the court allow persons presently incarcerated in Raiford Prison to be summoned to appear on the defendant's behalf as character witnesses. These motions were denied.
The trial court stated that it would consider the same presentence investigation report which was used in the original sentencing procedure. The trial court expressly stated in the record that the only presentence investigation report considered was furnished to the State and the defendant both prior to the imposition of the original sentence and again prior to the subject resentencing. This report is limited to the appellant's criminal record. 1 The court allowed counsel an opportunity make arguments On this appeal from resentencing, two points are raised. First, appellant contends that the trial court erred in refusing to impanel a jury and conduct a new sentencing trial in accordance with Section 921.141, Florida Statutes (1975). It is the appellant's view that when the United States Supreme Court vacated the appellant's original sentence of death the sentence was thereby rendered void. Appellant submits that any subsequent sentence, to be lawfully imposed, must be preceded by another advisory sentencing before a jury under Section 921.141, Florida Statutes (1975). The State responds that both the United States Supreme Court and this Court intended that the case be remanded to the trial court for the very limited purpose of "consideration in light of Gardner v. Florida.'' Songer v. Florida, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977). The State further asserts that the only question presented is whether the trial court complied with due process requirements of the Gardner decision, which directs that when a court imposes a sentence of death the defendant must have an opportunity to explain or rebut any information before the court on which the sentence is to be based.
and to refute matters contained in the presentence investigation report. Defense counsel presented no matters to refute the report, but instead asked for a more expansive presentence investigation. This request was not made until the moment of sentencing. The trial judge denied the request and sentenced the appellant to death for the same reasons as expressed in his previous order. 2
In his second issue, the appellant argues that the trial court erred in refusing to allow him to subpoena prison inmates as character witnesses to speak on his behalf at the resentencing hearing. Appellant further contends that the court's refusal to allow the appellant to subpoena witnesses to testify at the hearing violates Rule 3.720(b), Fla.R.Crim.P., which requires the court to "(e)ntertain submissions and evidence by the parties which are relevant to the sentence." It appears that the appellant sought to have these inmate witnesses testify in mitigation of the sentence and not to contradict anything contained in the presentence investigation report; nothing appears in the record concerning the proffered substance of their testimony.
We disagree with both of appellant's contentions.
We hold that the trial court did not err in refusing to impanel a jury upon resentencing or to hear witnesses in mitigation of the sentence and that the trial court properly complied with Rule 3.720(b), Fla.R.Crim.P. This Court's order of May 17, 1977, remanded the case to the trial court for resentencing "only consistent with the opinion of the Supreme Court of the United States in Gardner." Under that order, the case was remanded to the trial court to ensure that the sentence was not imposed on the basis of any information which the appellant did not have an opportunity to rebut or explain. The record now reflects that there was no initial Gardner violation because trial counsel was given a copy of the presentence investigation report prior to the original sentencing. The trial court on remand clarified the record by showing that appellant's trial counsel had a copy of the presentence investigation at the first sentencing hearing. At the second sentencing hearing, the trial court also afforded appellant's counsel another opportunity to challenge the accuracy of the same presentence investigation report. The only response was a request for a more expansive report.
The evidence offered in mitigation of the sentence by asserted character witnesses who were Raiford inmates was not relevant at the hearing on remand. That We find there has been no violation of the requirements of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and the sentence of death is affirmed.
hearing was only for the purpose of allowing the defendant an opportunity to rebut what was contained in the presentence investigation report. Nothing was asserted or proffered that this testimony was necessary to rebut anything in the presentence investigation report. In the original sentencing proceeding appellant had been afforded an opportunity to present witnesses in mitigation of the sentence. The trial judge properly denied the request to subpoena these inmate witnesses.
Appellant has filed a motion for rehearing asserting that Florida's death penalty statute, Section 921.141, Florida Statutes (1975), is unconstitutional in light of the United States Supreme Court's recent decision in Lockett v. Ohio, --- U.S. ----, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). We reject this contention and deny appellant's request for rehearing.
In Lockett, the Court held that Ohio's death penalty statute, which restricts the sentencing judge's consideration to the statutory list of mitigating factors, violates the eighth and fourteenth amendments to the United States Constitution. Appellant asserts that Florida's statute similarly prescribes an exclusive list of mitigating circumstances, relying principally on language from our decision in Cooper v. State, 336 So.2d 1133 (Fla.1976), to the effect that unlisted mitigating circumstances should not be considered in sentencing for a capital crime.
In Cooper, this Court was concerned not with whether enumerated factors were being raised as mitigation, but with whether the evidence offered was probative. Chief Justice Burger, writing for the majority in Lockett, expressly stated that irrelevant evidence may be excluded from the sentencing process. 98 S.Ct. at 2965 n.12. Cooper is not apropos to the problems addressed in Lockett.
As concerns the exclusivity of the list of mitigating factors in Section 921.141, the wording itself, 1 and the construction we have placed on that wording in a number of our decisions, indicate unequivocally that the list of mitigating factors is not exhaustive. This was noted, in fact, in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).
We have approved a trial court's consideration of circumstances in mitigation which are not included on the statutory list in Washington v. State, 362 So.2d 658 (Fla.1978); Buckrem v. State, 355 So.2d 111 (Fla.1978); McCaskill v. State, 344 So.2d 1276 (Fla.1977); Chambers v. State, 339 So.2d 204 (Fla.1976); Meeks v. State, 336 So.2d 1142 (Fla.1976); Messer v. State, 330 So.2d 137 (Fla.1976); and Halliwell v. State, 323 So.2d 557 (Fla.1975), among others. Obviously, our construction of Section 921.141(6) has been that all relevant circumstances may be considered in mitigation, and that the factors listed in the statute merely indicate the principal factors to be considered. This construction of the statute, and its continued validity, were noted most recently in Spinkellink v. Wainwright, 578 F.2d 582, 620-21 (5th Cir. 1978), where the court was presented with an identical challenge to our death penalty statute based on Lockett v. Ohio.
Florida's death penalty statute, unlike the Ohio statute found invalid in Lockett, does not violate the eighth and fourteenth amendments to the United States Constitution. Accordingly, appellant's motion for rehearing is denied.
1 Re: SONGER, Carl Ray
Re: 42-667
Dear Judge Booth:
As per your request the following is submitted:
The above captioned white male is known under FBI # 634 736 G and has the following criminal record:
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Hitchcock v. Wainwright
...non-statutory mitigating evidence). Two years later and shortly after the decision in Lockett, the Florida Supreme Court in Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979), clearly held the Florida death penalty statute does not r......
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...See Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) (upholding the Florida scheme). 45 See Songer v. State, 365 So.2d 696, 700 (Fla.1978) (holding that Fla.Stat. § 921.141(6) (1981), which lists mitigating circumstances, does not restrict the sentencer's consideratio......
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