Anderson v. State

• Citation: 863 So.2d 169
• Decision Date: 25 September 2003
• Docket Number: No. SC01-336.,SC01-336.
• Parties: Fred ANDERSON, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

863 So.2d 169

Fred ANDERSON, Jr., Appellant, v. STATE of Florida, Appellee.

No. SC01-336.

Supreme Court of Florida.

September 25, 2003.

James B. Gibson, Public Defender, James R. Wulchak, Chief, Appellate Division, Assistant Public Defender, and George D.E. Burden, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Appellant.

Charles J. Crist, Jr., Attorney General, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, FL, for Appellee.

PER CURIAM.

We have for review a judgment of conviction of first-degree murder and sentence of the trial court imposing the death penalty upon Fred Anderson, Jr. We have jurisdiction pursuant to article V, section 3(b)(1), of the Florida Constitution. For the reasons expressed below, we affirm Anderson's convictions and sentences for grand theft of a firearm, robbery with a firearm, attempted first-degree murder, and first-degree murder.

FACTS

On March 20, 1999, appellant Fred Anderson, Jr. robbed the United Southern Bank (USB) in Mount Dora, Florida, and shot two tellers, Marisha Scott and Heather Young. Young was killed, but Scott survived.

At trial it was revealed that Anderson was on community control for a conviction of grand theft. He was ordered to pay restitution in excess of $4,000, but he paid less than $100. On March 15, 1999, Anderson was found to have violated his community control and was ordered to spend one year at a probation center beginning March 19. To obtain the funds to pay the restitution, Anderson decided to rob the Mount Dora USB, and, on March 18, 1999, he visited a member of his church at the USB where she worked as a part-time teller. Anderson also stole a loaded.22 caliber six-shot revolver from a neighbor's storage building. The gun fired heavier ammunition than a normal .22 caliber revolver and was a single action revolver, which meant that the hammer had to be pulled back and cocked each time the gun was fired.

On the morning of March 19, Anderson went to the USB under the pretense that he was a student writing a paper on banking and finance. He spoke with Scott and met with the bank manager, Allen Seabrook. Anderson took particular note of the bank's security VCR, which was kept in Seabrook's office. His plan was to deposit the robbery money into a new bank account at a second bank. After visiting the second bank, Anderson telephoned his supervisor and told her he had the money to pay off the restitution.

On March 20, a Saturday, Anderson obtained a second .22 caliber revolver from his mother's house, and then went to the USB with orange juice and doughnuts under the ruse that he wanted to thank the employees for their help. USB was scheduled to close at noon and Young and Scott were the only people working. Shortly before noon when no customers were present, Anderson told Young and Scott that he was going to his car to get his business card. Anderson returned with the two revolvers and ordered Young and Scott into the bank vault where he ordered them to fill a trash liner with money. Anderson then shot the two tellers. Scott was left paralyzed but was able to testify at trial. She testified that Anderson asked which one of them wanted to die first. Scott said she begged not to be shot.¹

During the robbery, Sherry Howard entered the bank with her children and saw Anderson near the vault. She also heard Scott saying, "Please don't" or "please no." Howard heard two or three gunshots and ran outside to call the police. The first police officer to arrive saw Anderson ripping an electrical cord and VCR equipment from the wall. Anderson was holding a trash can, which contained the smaller revolver and cash in excess of $70,000. The officer told Anderson to "drop the stuff." Anderson complied and was handcuffed.² Paramedics arrived and began working on the two victims. Young died in transit to the hospital.

In addition to being caught while the crime was in progress, Anderson's hands tested positive for gunshot residue, and blood recovered from Anderson's clothing was consistent with Scott's DNA. Additionally, a Florida Department of Law Enforcement (FDLE) firearms analyst examined the guns seized at the scene.³ She compared bullets test fired from the guns with seven bullets fired during the crime, some of which were found in the vault and others of which were recovered from Young's body during an autopsy. She concluded that four larger bullets displayed the same poor rifling characteristics as the test fires from the long caliber revolver, but she was not able to positively match them with that gun. However, she did positively match three smaller bullets with the second revolver.

The forensic pathologist who performed the autopsy on Heather Young testified that Young had a total of seven gunshot wounds. She said that all of Young's wounds could have been fatal, with the possible exception of a wound that had entered Young's chin and exited near her eye. One of the wounds had a pattern of gunpowder "tattooing" around it, which indicated that it had been fired at close range. She also testified that there were two injuries on Young's head that were consistent with blunt force trauma caused by some sort of flat surface. At trial, the pathologist examined a picture of Scott and noted that Scott had the same type of blunt trauma injury on her forehead.⁴

During the defense's case-in-chief, Anderson took the stand. Anderson admitted the robbery and testified to his bleak financial condition. Anderson also testified that he lived with his mother, who was disabled, retired, and a cancer survivor. Anderson admitted taking both guns and shooting the tellers, although he stated that he could only remember firing three shots. He also denied that he asked the tellers which one of them wanted to die first.

The jury convicted Anderson of grand theft for stealing the revolver, armed robbery, attempted first-degree murder, and first-degree murder. During the penalty phase, the State introduced the testimony of Young's brother and of her long time boyfriend. The defense offered the testimony of a number of people, including Anderson's mother, friends, members of Anderson's church, and former employers, all of whom testified that they had known him as a person of good character. The jury unanimously voted in favor of a death sentence recommendation and the trial court sentenced Anderson to death. The trial court found four aggravating factors⁵ and ten nonstatutory mitigating factors.⁶

ANALYSIS

On appeal, Anderson raises nine issues.⁷ Although Anderson does not raise the issue of sufficiency of the evidence on appeal, we have independently reviewed the evidence in this case and conclude that there is sufficient evidence supporting the convictions in this case. See Sexton v. State, 775 So.2d 923, 933-34 (Fla.2000)

; Brown v. State, 721 So.2d 274, 277 (Fla. 1998); see also § 921.141(4), Fla. Stat. (2002); Fla. R.App. P. 9.140(h). We have referred to that evidence in some detail above.

AGGRAVATING CIRCUMSTANCES

Initially, Anderson claims that the trial court erroneously found the aggravating circumstances of CCP and pecuniary gain. On appellate review, a trial court's ruling on an aggravating circumstance will be sustained as long as the court applied the appropriate rule of law and its ruling is supported by competent, substantial evidence in the record. See Willacy v. State, 696 So.2d 693, 695 (Fla. 1997)

.

In order to establish the CCP aggravating factor:

[T]he jury must determine that the killing was the product of cool and calm reflection and not an act prompted by emotional frenzy, panic, or a fit of rage (cold); and that the defendant had a careful plan or prearranged design to commit murder before the fatal incident (calculated); and that the defendant exhibited heightened premeditation (premeditated); and that the defendant had no pretense of moral or legal justification.

Jackson v. State, 648 So.2d 85, 89 (Fla. 1994) (citations omitted). Anderson argued in his brief and at oral argument that, although he had carefully planned the robbery of the USB, the shootings were not planned and were the result of him panicking during the robbery. It is true that a plan to kill cannot be inferred solely from a plan to commit another felony such as robbery. See Farina v. State, 801 So.2d 44, 54 (Fla.2001)

; Geralds v. State, 601 So.2d 1157, 1163 (Fla.1992). However, a prearranged plan to kill in order to prove CCP can be indicated by facts such as procurement of a weapon, lack of resistance or provocation, and the appearance of carrying out the murder as a matter of course. See Farina, 801 So.2d at 54; Bell v. State, 699 So.2d 674, 677 (Fla.1997); Swafford v. State, 533 So.2d 270, 277 (Fla. 1988).

We conclude that the trial court's finding of CCP is supported by competent, substantial evidence. The following evidence considered together provides support for the trial court's finding: (1) Anderson procured two lethal weapons before the crime; (2) Anderson contrived a complex scheme for the robbery and visited the USB on two separate occasions before the robbery; (3) on one visit Anderson spent a long amount of time in the bank and carefully viewed the bank's physical layout along with its security system; (4) on the day of the crime, Anderson went to the bank with orange juice and doughnuts as part of his scheme of deceit; (5) Anderson never attempted to disguise himself; (6) Anderson waited until the bank was scheduled to close to act; (7) Anderson intentionally left the bank briefly and procured two loaded, .22 caliber, six-shot revolvers; (8) Young and Scott never resisted; (9) after securing the money Anderson asked the tellers which one of them wanted to die first, and before the shooting began Scott begged Anderson not to shoot;⁸ (10) despite the lack of resistance, Anderson fired ten shots from the two guns at point blank range, with nine of these shots hitting the victims; (11) one of the guns used...