Alvord v. State, No. 45542

CourtUnited States State Supreme Court of Florida
Writing for the CourtADKINS; ROBERTS and OVERTON, JJ., and AGNER and PATTERSON; ENGLAND; ENGLAND
Citation322 So.2d 533
PartiesGary Eldon ALVORD, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 45542
Decision Date17 September 1975

Page 533

322 So.2d 533
Gary Eldon ALVORD, Appellant,
v.
STATE of Florida, Appellee.
No. 45542.
Supreme Court of Florida.
Sept. 17, 1975.
Rehearing Denied Dec. 15, 1975.

Page 535

James A. Gardner, Public Defender, and Richard W. Seymour, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., for appellee.

ADKINS, Chief Justice.

This is a direct appeal from a judgment adjudging defendant guilty of murder in the first degree and a sentence of death.

An indictment, containing three counts of murder in the first degree, charged that, on June 17, 1973, the appellant (hereinafter referred to as defendant) murdered Georgia Tully (hereinafter referred to as Georgia), Ann Herrman (hereinafter referred to as Ann), and Lynn Herrmann (hereinafter referred to as Lynn). The defendant was alleged to have committed each of the murders by strangling the named victim to death by means unknown to the Grand Jury.

In the early afternoon of June 18, 1973, the bodies of Georgia, Ann and Lynn were discovered in a home in Tampa, Florida. The home was owned by Ann, who was the daughter of Georgia. Lynn, eighteen years of age, was the daughter of Ann and lived at home with her mother.

Each of the three women was found in a separate room in the house and each had been strangled with a piece of cord. A vaginal test on Lynn showed the presence of semen and there was a slight abrasion on the right side of her head. The front door of the house had been kicked open and the condition of the house tended to indicate that the murderer burglarized the house either before or after the three women had been murdered. The time of death was tentatively established as occurring between 11:00 a.m., Saturday, June 16, 1973, and 1:30 p.m., Monday, June 18, 1973.

At the trial the jury returned a verdict finding the defendant 'guilty as charged in the indictment.' After the trial of the penalty phase, the jury recommended to the court that it impose the death penalty upon defendant under each count of the indictment. The trial judge then imposed the death sentence in conformity with the recommendation of the jury and filed an order setting out his finding of facts in support thereof. Upon denial of the motion for new trial, defendant filed a timely notice of appeal.

Defendant first makes a three-pronged attack upon the constitutionality of Fla.Stat. §§ 775.082, 782.04 and 921.141, F.S.A., saying that

(a) The present capital sentencing procedures are unconstitutionally discretionary;

(b) The statutory distinction between first and second degree felony murder is unconstitutionally vague;

c) The death sentence is per se cruel and unusual.

He requests that we reconsider State v. Dixon, 283 So.2d 1 (Fla.1973). Once again we hold the statutes to be constitutional

Page 536

and reaffirm State v. Dixon, supra. See Sullivan v. State, 303 So.2d 632 (Fla.1974) and Alford v. State, 307 So.2d 433 (Fla.1975).

Defendant contends that the provisions of the Florida Statute allowing a jury to render an advisory opinion on the question of the sentence to be imposed in a capital case by a simple majority vote violates the defendant's right to a trial by jury guaranteed by the Florida and United States Constitution. The defendant recognizes that Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152, upheld a statute which allowed a conviction to be entered in certain felony cases upon a nine-three plurality verdict of the jury, but says that the court based its decision upon the fact that the Louisiana statute required the concurrence of a 'substantial majority' of the jurors. The contention advanced by defendant in the case Sub judice was rejected by the United States Supreme Court in the Johnson case when the Court said:

'We note at the outset that this Court has never held jury unanimity to be a requisite of due process of law. Indeed, the Court has more than once expressly said that '(i)n criminal cases due process of law is not denied by a state law . . . which dispenses with the necessity of a jury of twelve, or unanimity in the verdict.' Jordan v. Massachusetts, 225 U.S. 167, 176, 32 S.Ct. 651, 56 L.Ed. 1038, 1042 (1912) (dictum). Accord, Maxwell v. Dow, 176 U.S. 581, 602, 605, 20 S.Ct. 448, 44 L.Ed. 597, 605, 606 (1900) (dictum).' 406 U.S. at 359, 92 S.Ct. at 1623, 32 L.Ed.2d at 157, 158.

The argument of defendant on unanimous v. majority recommendations was specifically met by this Court in Watson v. State, 190 So.2d 161 (Fla.1967), when it stated:

'The provisions of F.S. Sections 794.01 and 919.23, F.S.A., authorizing a jury by a majority vote to recommend mercy for a defendant it has found guilty in a capital case are beneficial to the defendant. Requirement of a unanimous vote would lessen defendant's chance for mercy. Without these provisions said statutes would result in a defendant found guilty thereunder being automatically sentenced to death. It lies within the province of the Legislature to prescribe the punishment to be imposed upon a person who is found guilty or pleads guilty to an offense as well as the method or manner of its imposition. The power to define what acts shall constitute criminal offenses and what penalties shall be inflicted on offenders is legislative. 14 Am.Jur., Criminal Law, § 16. The legislature may authorize a jury to assess punishment. 15 Am.Jur., Criminal Law, § 510. It is not necessary in the sentencing phase of a criminal case that the jury's verdict be unanimous where the legislature provides otherwise. The cases cited by the Appellants from other jurisdictions do not construe statutes similar to F.S. Sections 794.01 and 919.23, F.S.A., which require only a majority vote for a recommendation of mercy. There is no provision in our Constitution requiring a unanimous verdict in respect to a recommendation of mercy.' (pp. 166, 167)

The State, as part of its direct case, called Detective Donald Dufour, of the Lansing Police Department, who had arrested the defendant in Lansing, Michigan, about three weeks after the murders. Dufour originally arrested defendant in connection with a burglary which had occurred in the Lansing area. Dufour took defendant from the jail section of the Police Department to the office of Detective Bureau and gave him the following advice as to his rights:

'A First of all I advised him that, who I was. I advised him who I was and that I was a detective with the Police Department in Lansing. I advised him that he didn't have to talk to me, that anything he said will be used in

Page 537

court against him. I advised him that he had to, he had a right to have an attorney. He had a right to have an attorney present before he answered any questions or made any statement.

'Q All right. Did he request to have an attorney?

'A No, sir, he did not.

'Q Did he request to remain silent?

'A No, sir, he did not.

'Q Did you or anyone in your presence promise him anything in order for him to make a statement?

'A No, sir.

'Q Did you or anyone in your presence threaten him to make a statement?

'A No, sir.

'Q Did you promise him immunity if he made a statement?

'A No, sir.

'Q Did you coerce him in any way to make a statement?

'A No, sir.

'Q Did he indicate whether or not he understood his rights?

'A Yes, sir. He told me he was aware of his rights.' (Tr. pp. 689, 690)

When Dufour advised defendant that he wanted to talk to him about a 'safe job,' the defendant looked at him and said, 'I am a rapist, not a God-damn thief.' When Dufour asked defendant what was meant by that, the defendant told him he was wanted for three murders in Florida. Dufour then said, 'I thought it was two' and defendant replied, 'Maybe they forgot one.' When Dufour asked, 'Did you do it?' defendant responded, 'They will have to prove it.'

Before permitting Detective Dufour to give this testimony, the trial judge excluded the jury and heard the State's proffer. The trial judge determined that the statement had been made freely and voluntarily and ruled it to be admissible, but cautioned Detictive Dufour not to mention to the jury the nature of the offenses he was investigating (the burglary and the safe job). Over objection of defendant, the statement, 'I am a rapist, not a God-damn thief' was admitted into evidence.

Defendant says that Dufour failed to advise him that an attorney would be appointed to represent him if he were an indigent. This deficiency in the warning, says defendant, violates the principles set out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and the resulting statements should have been excluded.

Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), recognizes that the Miranda decision on custodial statements by defendants was not intended to create a constitutional straight-jacket, but rather to provide practical reinforcement for the right against compulsory self-incrimination. In that case, the defendant received all of the Miranda rights with the exception that, if he could not afford counsel, the State would provide him one free of charge. The United States Supreme Court held that the police conduct did not abridge the defendant's constitutional privilege against self-incrimination but only departed from the prophylactic standards enunciated in Miranda. In its opinion the Court said:

'Just as the law does not require that a defendant receive a perfect trial, only a fair one, it cannot realistically require that policemen investigating serious crimes make no errors whatsoever. The pressures of law enforcement and the vagaries of human nature would make such an expectation unrealistic. Before we penalize police error, therefore, we must consider whether the sanction serves a valid and useful purpose.

'* * *

Page 538

'The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least, negligent conduct which has deprived the defendant...

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97 practice notes
  • Breedlove v. Moore, No. 98-0953-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • September 8, 1999
    ...The Florida Supreme Court, however, has established that a recommendation for death by a majority vote is permissible. Alvord v. State, 322 So.2d 533 (1975). On the other hand, a majority vote is not required for a life recommendation. See e.g., Bush v. Singletary, 988 F.2d 1082, 1089, (11t......
  • Pulley v. Harris, No. 82-1095
    • United States
    • United States Supreme Court
    • January 23, 1984
    ...see State v. Dixon, 283 So.2d 1, 10 (Fla.1973), and frequently acknowledged and performed thereafter, see, e.g., Alvord v. State, 322 So.2d 533, 540-541 (1975); Alford v. State, 307 So.2d 433, 445 (1975); Lamadline v. State, 303 So.2d 17, 20 (Fla.1974). As the Florida Supreme Court has itse......
  • Ford v. Strickland, No. 81-6200
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • January 7, 1983
    ...jury, the trial judge, or this Court from exercising reasoned judgment in reducing the sentence to life imprisonment. Alvord v. State, 322 So.2d 533, 540 (Fla.1975) (emphasis added). The Florida Supreme Court regularly reevaluates the evidence in death penalty cases either to sustain the se......
  • Bottoson v. Moore, No. SC02-1455.
    • United States
    • United States State Supreme Court of Florida
    • October 24, 2002
    ...on the other hand, does not enjoy the same status as an element of the offense and requires only a majority vote. See Alvord v. State, 322 So.2d 533 (Fla.1975) (upholding the requirement that a jury's advisory sentence need only be rendered by majority vote, not unanimously). See also § 921......
  • Request a trial to view additional results
97 cases
  • Breedlove v. Moore, No. 98-0953-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • September 8, 1999
    ...The Florida Supreme Court, however, has established that a recommendation for death by a majority vote is permissible. Alvord v. State, 322 So.2d 533 (1975). On the other hand, a majority vote is not required for a life recommendation. See e.g., Bush v. Singletary, 988 F.2d 1082, 1089, (11t......
  • Pulley v. Harris, No. 82-1095
    • United States
    • United States Supreme Court
    • January 23, 1984
    ...see State v. Dixon, 283 So.2d 1, 10 (Fla.1973), and frequently acknowledged and performed thereafter, see, e.g., Alvord v. State, 322 So.2d 533, 540-541 (1975); Alford v. State, 307 So.2d 433, 445 (1975); Lamadline v. State, 303 So.2d 17, 20 (Fla.1974). As the Florida Supreme Court has itse......
  • Ford v. Strickland, No. 81-6200
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • January 7, 1983
    ...jury, the trial judge, or this Court from exercising reasoned judgment in reducing the sentence to life imprisonment. Alvord v. State, 322 So.2d 533, 540 (Fla.1975) (emphasis added). The Florida Supreme Court regularly reevaluates the evidence in death penalty cases either to sustain the se......
  • Bottoson v. Moore, No. SC02-1455.
    • United States
    • United States State Supreme Court of Florida
    • October 24, 2002
    ...on the other hand, does not enjoy the same status as an element of the offense and requires only a majority vote. See Alvord v. State, 322 So.2d 533 (Fla.1975) (upholding the requirement that a jury's advisory sentence need only be rendered by majority vote, not unanimously). See also § 921......
  • Request a trial to view additional results

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