366 So.2d 745 (Fla. 1978), 48513, Salvatore v. State

Docket Nº:48513.
Citation:366 So.2d 745
Opinion Judge:Author: Adkins
Party Name:Michael SALVATORE, Appellant, v. The STATE of Florida, Appellee.
Attorney:Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, Miami, for appellant.
Case Date:September 07, 1978
Court:Supreme Court of Florida

Page 745

366 So.2d 745 (Fla. 1978)

Michael SALVATORE, Appellant,


The STATE of Florida, Appellee.

No. 48513.

Supreme Court of Florida.

September 7, 1978

Rehearing Denied Feb. 14, 1979.

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Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, Miami, for appellant.

Robert L. Shevin, Atty. Gen., George R. Georgieff, Asst. Atty. Gen., and Richard L. Wilson, Sp. Asst. Atty. Gen., Tallahassee, for appellee.

ADKINS, Justice.

This is a direct appeal from a judgment adjudging defendant guilty of murder in the first degree and a sentence of death, and also adjudging him guilty of conspiracy to commit murder for which he received a concurrent fifteen-year sentence.

The victim DeWitt, a person of financial means, engaged in various business transactions with Shapiro, which were conducted through an office rented by the victim and Epstein. Shapiro relied upon the victim to finance not only his various ideas or projects, but also personal living expenses. Unfortunately, the ideas and projects proved to be unsuccessful and the victim soon became disenchanted with the relationship. When the business relationship faltered, Shapiro considered the elimination of DeWitt.

The defendant Salvatore and Murren worked at a marina and became acquainted with the victim and Shapiro because of the latter's interest in boats.

In late December Murren and the defendant delivered a stolen boat for the victim to Epstein's house, located on a canal with dock facilities. The serial numbers were removed from the sail and the boat was secured at the victim's request.

Shapiro, Murren and defendant formulated the plan for the murder. The victim was to be brought to a car driven by Murren and the defendant in which there would be some marine radios which the victim could use for this newly acquired boat. While the victim was looking at the radios Murren was to strike him over the head with a metal pipe, push him into the trunk of the car, take him to a waiting motorboat, weight him with a cement block, take him to the Gulfstream, and dump him overboard. The sailboat would then be sold to a third party after changing the identification, and the victim's car would be left at the Epstein's house. It would then appear the victim had drowned while operating his sailboat.

The plan was going very well until the victim looked into the trunk of the car and Murren failed to hit him with the lead pipe. When Murren did not perform his duty, a suggestion was made that they proceed to the office of the victim adjacent to the parking lot. As they left the automobile the defendant picked up the lead pipe and placed it in his jacket.

When they reached the office the victim and Murren discussed boat insurance and as they were looking at an art object on the wall, the defendant hit the victim on the head with the pipe. The defendant hit him again and, as the victim pleaded for help, the defendant threw the pipe to Murren and told him to hit the victim. Murren struck him twice on the neck and side. Defendant hit the victim a few more times on the head and the victim fell, asking for help. Defendant then struck him once more across the face. Blood splattered on the wall and over the carpet. Murren and defendant placed the victim's body on the floor of a closet, shut the door and Murren left, seeking to purchase a box for the body.

The search for a box was unsuccessful, so, at the suggestion of defendant, Murren purchased rug cleaning material, plastic and indoor-outdoor carpeting. After attempting to clean the rug in the office, defendant and Shapiro cut out the blooded area of the rug with a knife. The body of the victim was rolled into the plastic and the indoor-outdoor carpeting, then brought out of the office and placed in the trunk of Murren's

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car. The defendant drove Murren's car and Murren drove DeWitt's car to Murren's house, where they placed cement blocks in the trunk and hitched a speedboat to the car. Defendant and Murren then drove to a boating area, disposing of the cleaning utensils along the way. They placed the body in the speedboat and went out to sea. They tied cement blocks on the body and threw it into the water near the Gulfstream.

When they returned to shore Murren drove DeWitt's car to the Epstein's residence. Defendant followed in Murren's car. Murren then boarded the sailboat at Epstein's and delivered it to the third party for sale. Defendant picked Murren up after the sale and subsequently split the proceeds.

The day after the homicide, defendant and Murren met Shapiro at the office. The three of them then purchased similar carpeting and spray cement so that they could repair the damage to the office.

When the victim did not return home, his wife notified the authorities and, after several days, F.B.I. Agent Flynn entered the investigation. He discovered that Murren was wanted on a fugitive warrant from Colorado and took him into custody. Murren then told of the murder of the victim DeWitt and this prosecution resulted. There is ample evidence on which the jury could have based its verdict of guilt.

At the sentencing hearing defendant's attorney announced that the defendant had instructed him to make no statement and present no evidence and not to object during the prosecutor's statement to the jury on the penalty phase. The attorney announced that the decision of the defendant was against the advice of his attorney. Upon inquiry of the defendant, the court determined that he had consulted his attorney and the statement represented defendant's views. The defendant stated that he understood and did not want to present anything to the jury during the sentencing phase. An advisory opinion was rendered by the jury by which a majority of the jurors recommended that the court impose the death penalty.

The court ordered a presentence investigation for "further information regarding mitigating circumstances only." The court then made its findings which included the following:

"The court, having heard all the argument of the state, and neither evidence nor argument from the defense during the penalty phase of the trial, ordered a pre-sentence investigation directed solely towards determining whether mitigating factors existed under the law and the facts of this case. The court had determined in its own mind prior to the ordering of the pre-sentence investigation that aggravating factors existed in this case and accordingly, I searched the pre-sentence investigation report and also various letters submitted by friends of the defendant which I have made a part of the court file in this case, solely to determine whether such mitigating factors were present.

"After having examined all of the evidence in the trial, the recommendation of the jury, pre-sentence investigation report, and letters submitted by friends of the defendant, the court finds that it is in agreement with the advisory sentence rendered by the jury and does hereby impose the death penalty upon the defendant, MICHAEL SALVATORE.

"The court makes the following findings of fact in doing so:

"1. The murder committed in this case was especially heinous, atrocious and cruel. There is no question but that any civilized person whether in favor of or against the death penalty would cry out with indignation if this Court were to sentence this or any other defendant to die in the manner that the evidence shows BURT DeWITT died. The victim in this case did not meet a swift, relatively painless death. Instead, he was bludgeoned to death, with utter indifference to his obvious suffering and cries for help. Very clearly, this killing fits the definitions of 'heinous,' 'atrocious' and 'cruel' given

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by the Supreme Court of this state in State vs. Dixon, 283 So.2d page 1. The court finds that even were there no other aggravating circumstances in this case, this circumstance alone would be sufficient to outweigh the one possible mitigating factor the Court finds in the existing case.

"2. The Court finds, however, that there is an additional aggravating factor in that this crime was committed for pecuniary gain. The defendant was to gain directly from the proceeds of the sale of the boat, which he admitted he had previously stolen on behalf of the victim, and which he then stole again from the victim for the purposes of sharing in the proceeds of the sale, as well as for purposes of concealing the homicide that he had committed. The defendant also hoped to gain a pecuniary advantage indirectly in that he had been promised by the co-defendant future financial rewards for the commission of this crime.

"3. The only mitigating factor the Court can find after extensive search of the record and the supporting documents is that the defendant has no 'significant' history of prior criminal activity. The record shows a prior conviction for a burglary for which the defendant received probation, and the defendant admitted during the course of testimony that he had actually committed the theft of the boat which figured in the commission of the instant crime. The Court is of the opinion that under the circumstances of this case, even if the defendant had no history whatever of prior criminal activity, the aggravating factors in this case would outweigh that mitigating factor. As it is, all the Court finds is that the defendant's history of prior activity is not significant.

"4. As for the other mitigating factors contemplated by law, the Court makes the following findings:

"At the time of this homicide, the defendant was not under the influence of extreme mental or emotional disturbance. The Court finds it significant that although a psychiatrist gave evidence on behalf of the defendant in an effort to mitigate the offense, he did not provide such testimony. There is no indication that the victim was a participant in the defendant's conduct, or consented to this homicide. The defendant's participation in...

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