Aguilera v. State, 90-2175

• Decision Date: 17 September 1992
• Docket Number: No. 90-2175,90-2175
• Citation: 606 So.2d 1194
• Parties: 17 Fla. L. Week. D2177 Albert Thomas AGUILERA, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1194

606 So.2d 1194

17 Fla. L. Week. D2177

Albert Thomas AGUILERA, Appellant, v. STATE of Florida, Appellee.

No. 90-2175.

District Court of Appeal of Florida,

First

District.

Sept. 17, 1992.

Rehearing Denied Oct. 27, 1992.

Leo A. Thomas of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellant.

Robert A. Butterworth, Atty. Gen., Charlie McCoy, Asst. Atty. Gen., Tallahassee, for appellee.

SMITH, Judge.

Appellant, Albert Thomas Aguilera, was convicted by a jury of the offenses of first degree murder and shooting a firearm into an occupied vehicle, and was sentenced by the court to life in prison without parole for 25 years. In this appeal, appellant urges reversal of his convictions and sentences based upon (1) rulings by the trial court during the jury selection process resulting in denial of appellant's right to a fair and impartial jury; (2) the trial court's denial of his motion for judgment of acquittal, or for a new trial, grounded upon overwhelming evidence of appellant's insanity at the time of the offenses; and (3) the trial court's denial of appellant's motion to reduce the homicide charge to second degree murder. We affirm on all issues.

The evidence presented by the state at trial, at which appellant's sole defense was that of insanity, established without doubt or contradictory evidence that appellant shot and killed the victim, Matthew Miller, on January 3, 1989. The events of that day, including the activities of appellant before, during, and after the shooting, and his apprehension and arrest by officers a short time after the crimes, will be briefly related below. At 7:00 in the morning on the day of the shooting, appellant was in a Krispy Kreme Donut Shop in Pensacola. There he turned to a lady who knew him only by sight and asked: "Is it true the only unpardonable sin is suicide?" Receiving an affirmative response, appellant said: "You know, my medicine has not been working too well." Within an hour, appellant appeared at a nearby Waffle House Restaurant, where he was known to the waitresses working there. On the same day, shortly before 11:00 A.M., appellant went to Lake View Center, a facility furnishing counseling and treatment for mental patients, where he was interviewed and had lunch with a mental health worker. Appellant stayed at the center until about 3:00 in the afternoon.

Between 3:00 P.M. and 4:30 P.M., appellant went to the Gulf Breeze Pistol Shop where he purchased a .38 caliber pistol and ammunition. During the selection and purchase of the gun, which consumed about 20 to 25 minutes, appellant was required to fill out an application form in which he denied a history of mental illness. After purchasing the gun, appellant drove into some nearby woods where he test-fired the weapon. He then drove to a Tom Thumb Convenience Store, also located in Gulf Breeze, where the victim, Matthew Miller, had just purchased some gasoline, and was sitting in his car at the pump. Appellant left his car, walked to Miller's car, and as Miller was about to drive off, appellant raised his gun and fired one bullet through the driver's side window into Miller's head killing him instantly. Appellant raised the gun in the air, turned and slowly walked off, entered his automobile, and drove slowly away along Highway 98 in an easterly direction. After travelling less than one mile, appellant made a U-turn, returned to the same intersection where the Tom Thumb Store was located, then turned into a subdivision directly across the street from the store. At the site of a home under construction in the subdivision, appellant buried the revolver, a cartridge box, and several rounds of ammunition. Some eleven feet away from where the revolver was buried, he left leaning up against a tree the blue box in which the gun was purchased from the gun shop.

Within 30 minutes after the shooting, appellant was apprehended as he drove across the Bay Bridge toward Pensacola. In the middle of the front seat of his car at the time an officer discovered a spent .38 caliber casing. Appellant told the arresting officer that he shot the victim "because the victim had his girlfriend and would not let him have any of the girls in town." ¹ Appellant also accused one of the officers of having his girlfriend. Later on that day, a gunshot residue test was conducted, which disclosed gunshot residue on appellant's right hand. Several days later, officers recovered the gun, the cartridge box and cartridges, and the blue gun box, upon which four latent fingerprints were found matching those of appellant.

The evidence established that the victim lived in an apartment complex located approximately 100 yards off Highway 98 behind the Tom Thumb Store where the shooting occurred. He had lived there approximately a month and a half prior to his death. The apartment manager testified that she had seen appellant with the victim, Matthew Miller, prior to the day of the shooting, when Miller came into the office to pay rent. She also testified that she had seen appellant's car in the vicinity of the victim's apartment on a prior occasion, with appellant sitting in it; and that she had seen appellant in his car on the premises the same day Matthew Miller was killed.

Prior to trial, appellant's counsel timely filed a notice of intention to rely on the defense of not guilty by reason of insanity. Several psychologists and psychiatrists were appointed by the court to determine appellant's competency to stand trial, and to determine his sanity at the time of the alleged offense. Appellant, who was 34 years of age at the time of trial, had a long history of diagnosis and treatment as a paranoid schizophrenic. On July 27, 1989, the trial court entered an order finding appellant incompetent to stand trial, committing him to the Department of Health and Rehabilitative Services. Appellant was discharged on October 31, 1989, returned to the Santa Rosa County Jail, and on November 16, 1989 the court again ordered doctors to examine and report on appellant's competency to stand trial. The court subsequently found appellant competent to stand trial. Upon conviction and being sentenced, appellant timely filed his notice of appeal.

Appellant raises several alleged errors in the jury selection process. He first urges that the trial court erred in excusing the only two black jurors from the venire over appellant's Neil objection. ² The first of the two black jurors excused, juror McCray, answered affirmatively to the question whether she had any philosophical, emotional, or moral or other reason why she could not sit in judgment on another human being. She explained:

I just do not feel like I was seated on a jury that I can decide if he was right or wrong as to what he did. Because I don't know what was in his mind or his heart at the time when it happened. And I don't think that I can make a decision unless--and I just don't think that I can judge the person.

The prosecutor then asked the question: "And do you think that your feelings as you sit right now can prevent you from being a fair juror in this case?" Mrs. McCray: "Probably--I mean I just do not feel that I should be, should have to make a decision, you know...."

The state moved to excuse McCray for cause, to which appellant's counsel objected, arguing that the juror also indicated that she could sit as a juror and follow the law if she had to, and that the state's attempt to excuse the juror amounted to a systematic exclusion of blacks, since there were only two available. The trial court, although expressing doubt that inquiry was called for under Neil and Slappy (supra, footnote 2), directed the prosecutor to state its reasons for the challenge for cause. The prosecutor responded that the juror had stated that her beliefs would not allow her to sit in judgment of another person, and that this would affect her ability to perform as a juror. The court ruled that the challenge for cause would be granted, stating:

She did say that she can follow the law if she was forced to do so, but she did combine that with a statement that she's a scary kind of person and she has a child. And what--it was very clear to me that she was saying that she was afraid that if she was forced to sit on the jury that in some way it would come to the detriment of her child. And in what way--that was not clear but that's what she seemed to be saying. It is not clear to me at all that she would follow the law. She--responded, Mr. Thomas, only with hesitance to your probing of her.

And I think that both counsel probed appropriately on that. But I think that she's proper for a cause for challenge [sic].

As to the second black juror, McCorvey, the state used a peremptory strike, prompting defense counsel to again request a Neil inquiry. The prosecutor stated that the only reason for exercising a peremptory was "to save a hardship," pointing out that Juror McCorvey stated upon being questioned individually that she is the sole care-giver for her father, who was 84 years of age; that her father had had a stroke, half of his body is paralyzed, and he is "loaded with infection" at the present time. Further, juror McCorvey stated, she was concerned about the availability of a reliable person to look after her father in her absence, and that she needed to take him to the doctor the next day. The trial court agreed that juror McCorvey met the criteria for hardship under the statute, section 40.013(6) or (9), Florida Statutes and ruled that the state had demonstrated a non-racial reason for excusing McCorvey.

We first dispose of appellant's contention that the excusal of juror McCorvey was not shown to be based upon a race-neutral reason. The trial judge found, and we agree, that juror McCorvey met the criteria for excusal for hardship under the statute. We are of the view that the trial court could reasonably find that the prosecutor's explanation for excusing the juror was for a...