Archer v. State, No. 83258

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM; GRIMES; ANSTEAD; ANSTEAD
• Citation: 673 So.2d 17
• Parties: 21 Fla. L. Weekly S119 Robin ARCHER, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 83258
• Decision Date: 14 March 1996

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673 So.2d 17 21 Fla. L. Weekly S119 Robin ARCHER, Appellant,
v.
STATE of Florida, Appellee. No. 83258. Supreme Court of Florida. March 14, 1996.
Rehearing Denied May 1, 1996.

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An Appeal from the Circuit Court in and for Escambia County, No. 91-606 Div. A; T. Michael Jones, Judge.

Nancy A. Daniels, Public Defender and David A. Davis, Assistant Public Defender, Second Judicial Circuit, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General and Curtis M. French, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Robin Archer appeals the death sentence imposed upon him at resentencing. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. We affirm the death sentence.

Archer was convicted of first-degree murder, armed robbery, and grand theft. The facts surrounding these crimes are set forth in Archer v. State, 613 So.2d 446 (Fla.1993). Following the jury's recommendation, the trial court sentenced Archer to death. On appeal, we affirmed the convictions but vacated the sentence because the trial judge improperly instructed the jury on the heinous, atrocious, or cruel aggravator. Consequently, we directed the trial court to empanel a jury and conduct a new sentencing proceeding. Id. at 448.

After hearing evidence and argument on remand, the new jury recommended a death sentence for Archer by a vote of seven to five. The trial judge followed that recommendation, finding that the aggravating circumstances ¹ outweighed the mitigating circumstances. ²

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On appeal, Archer raises the following seven claims with regard to his sentence: (1) the trial court's instruction to the jury on the cold, calculated, and premeditated aggravating factor was unconstitutionally vague; (2) the trial court erred in failing to provide a definition of reasonable doubt to the resentencing jury; (3) the trial court erred in failing to give the jury any of the general instructions and miscellaneous instructions on principals; (4) the trial court erred in admitting victim-impact evidence; (5) the trial court erred in refusing to instruct the jury that its sentencing recommendation was entitled to great weight; (6) the trial court erred in failing to instruct the jury that it could consider Archer's age of 26 as a mitigating factor; and (7) the trial court erred in granting several of the State's cause challenges of jurors who could not recommend death if Archer was not the triggerman.

First, we address Archer's claim that the trial court erred in its instruction to the jury on the cold, calculated, and premeditated aggravating factor. The trial court gave the standard jury instruction on this aggravator, which we found to be unconstitutionally vague in Jackson v. State, 648 So.2d 85 (Fla.1994). Claims that the instruction on the cold, calculated, and premeditated aggravator is unconstitutionally vague are procedurally barred unless the defendant both makes a specific objection or proposes an alternative instruction at trial and raises the issue on appeal. Walls v. State, 641 So.2d 381, 387 (Fla.1994), cert. denied, --- U.S. ----, 115 S.Ct. 943, 130 L.Ed.2d 887 (1995). At trial, defense counsel objected to the standard instruction and requested an expanded instruction. Because Archer raises the constitutionality of the instruction on appeal, we are able to address the merits of this claim.

While we agree that the trial court erred in giving this instruction, we conclude that this error was harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Harmlessness exists if the record supports a finding that, beyond a reasonable doubt, the murder could only have been cold, calculated, and premeditated without any pretense of moral or legal justification even if the proper instruction had been given. See Walls, 641 So.2d at 387. The record in this case reveals that all four of these elements would exist under any definition of the terms.

The first element is 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. See Fennie v. State, 648 So.2d 95, 99 (Fla.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1120, 130 L.Ed.2d 1083 (1995). This was a contract murder, which is by its very nature cold. See Dailey v. State, 594 So.2d 254, 259 (Fla.1991) (finding that this aggravating circumstance is reserved for murders such as executions, contract murders, and witness elimination killings); Green v. State, 583 So.2d 647 (Fla.1991), cert. denied, 502 U.S. 1102, 112 S.Ct. 1191, 117 L.Ed.2d 432 (1992) (same). The facts of the murder itself prove the existence of a careful plan or prearranged design to kill beyond a reasonable doubt. Archer not only hired Patrick Bonifay, his cousin, to commit the murder but also wanted Bonifay to disguise the murder as a robbery. To this end, Archer provided Bonifay with a plan which included a description of the store's security system and the location of the store's cash box and emergency exit. Archer not only detailed what Bonifay should say to the clerk and when to shoot him, but Archer secured the gun and delivered it to Bonifay. Moreover, when Bonifay returned after killing the wrong clerk, Archer refused to pay him on the agreement. Under these facts, we find that the murder resulted from a careful plan or prearranged design beyond a reasonable doubt. See Sweet v. State, 624 So.2d 1138 (Fla.1993), cert. denied, 510 U.S. 1170, 114 S.Ct. 1206, 127 L.Ed.2d 553 (1994).

Archer's acts were not only calm and careful, but they exhibited heightened premeditation over and above what is required for unaggravated first-degree murder. This contract murder proceeded over a period of several days and included an aborted attempt. Finally, Archer's actions clearly do not demonstrate any pretense of moral or legal justification. Banda v. State, 536 So.2d 221, 225 (Fla.1988), cert. denied, 489 U.S. 1087, 109 S.Ct. 1548, 103 L.Ed.2d 852 (1989) (defining pretense of moral or legal justification as any claim of justification or excuse

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that, though insufficient to reduce degree of homicide, nevertheless rebuts otherwise cold and calculating nature of homicide). Despite Archer's contention that harmless error is inappropriate in this case because the jury could have concluded that Archer provided Bonifay with only a plan to rob the clerk and not a plan to murder, our review of the record does not support Archer's position. Accordingly, the error in instructing the jury as to cold, calculated premeditation is harmless because all four elements of this aggravator exist under any definition. See Walls.

Next we examine Archer's claim that the trial judge erred in failing to provide a definition of reasonable doubt to the resentencing jury. The standard guilt phase jury instructions provide a constitutionally proper definition of reasonable doubt, see Esty v. State, 642 So.2d 1074 (Fla.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1380, 131 L.Ed.2d 234 (1995); however, there is no corresponding definition in the standard sentencing phase jury instructions. During the resentencing hearing, the trial judge gave the jury the standard sentencing phase jury instruction which states:

Each aggravating circumstance must be established beyond a reasonable doubt before it may be considered by you in arriving at your decision.

If one or more of the aggravating circumstances are established, you should consider all of the evidence tending to establish one or more mitigating circumstances and give that evidence such weight as you feel it should receive in reaching your conclusion as to the sentence that should be imposed.

A mitigating circumstance need not be proved beyond a reasonable doubt by the defendant. If you are reasonably convinced that a mitigating circumstance exists, you may consider it established.

Fla.Std.Jury Instr. (Crim.) 79. Archer did not object to this instruction at trial and raises the issue for the first time on appeal.

This Court has held that jury instructions are subject to the contemporaneous objection rule, see Armstrong v. State, 642 So.2d 730 (Fla.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1799, 131 L.Ed.2d 726 (1995); Parker v. State, 641 So.2d 369 (Fla.1994), cert. denied, --- U.S. ----, 115 S.Ct. 944, 130 L.Ed.2d 888 (1995), and absent an objection at trial, can be raised on appeal only if fundamental error occurred. Fundamental error is "error which reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." State v. Delva, 575 So.2d 643, 644-45 (Fla.1991) (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)). While the State must prove each element of a crime beyond a reasonable doubt, our cases have not found error when a jury is instructed on this standard but not given a definition of the term. See Barwicks v. State, 82 So.2d 356 (Fla.1955); Knight v. State, 60 Fla. 19, 53 So. 541 (1910); accord Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994) (stating that a trial court must instruct the jury on the necessity that the defendant's guilt be proven beyond a reasonable doubt; however, the United States Constitution does not require a trial court to define reasonable doubt for the jury). Because we find that this instruction appropriately holds the State to the burden of proving each aggravating circumstance beyond a reasonable doubt, we hold that failure to define reasonable doubt to the jury in the sentencing phase...