Atwater v. State, 76327

• Decision Date: 16 September 1993
• Docket Number: No. 76327,76327
• Citation: 626 So.2d 1325
• Parties: 18 Fla. L. Weekly S496 Jeffrey ATWATER, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
• Court: Florida Supreme Court

Page 1325

626 So.2d 1325

18 Fla. L. Weekly S496

Jeffrey ATWATER, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.

No. 76327.

Supreme Court of Florida.

Sept. 16, 1993.

Rehearing Denied Nov. 29, 1993.

James Marion Moorman, Public Defender, and Stephen Krosschell, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant, cross-appellee.

Robert A. Butterworth, Atty. Gen., and Candance M. Sunderland, Asst. Atty. Gen., Tampa, for appellee, cross-appellant.

PER CURIAM.

Jeffrey Atwater appeals his convictions for first-degree murder and robbery and corresponding sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution.

On August 11, 1989, Atwater entered the John Knox Apartments in St. Petersburg, Florida, to see Ken Smith, the victim in this case. Upon entering the apartment building, Atwater proceeded to Smith's room where he remained for about twenty minutes. After Atwater left, Smith's body was discovered in the room. Smith was dead and his money was missing. Atwater told several people that he had killed Smith. Atwater was arrested the same day for killing Smith. At trial, he was convicted of first-degree murder and robbery. The jury recommended death by a vote of eleven to one. The trial judge found three aggravating factors and no statutory mitigating factors. The judge held that the aggravators outweighed the mitigators and sentenced Atwater to death. This appeal ensued.

Atwater claims that the trial court erred in allowing the State to exercise a peremptory challenge removing the sole black person in the venire. We disagree. Upon Atwater's objection to the peremptory challenge, the trial court inquired as to the State's reasons. The record reflects that the court's inquiry was adequate and the record supports the State's explanation for exercising the challenge. The court expressly noted that the prospective juror had difficulty answering the questions put to her and her demeanor indicated that she was hesitant and uncomfortable regarding the death penalty. This is a valid, race-neutral reason for exercising a peremptory challenge, and the court did not abuse its discretion in upholding the challenge.

Atwater also argues that the judge erred in the handling of a response to a juror's inquiry. After the instructions were given at the conclusion of the guilt phase but before the jury began its deliberations, one of the jurors said, in the presence of the attorneys for the defense and the State, that he had a question dealing with an interpretation of the law. The judge told him that he could not provide anything more than already provided in the jury instructions. The judge suggested that the juror study the instructions and consult with the other jurors to resolve the question. If the jury, as a group, had any further questions, the judge asked them to inform the bailiff who, in turn, would tell the judge.

Atwater contends that the judge's response violated the per se rule of Curtis v. State, 480 So.2d 1277 (Fla.1985), and Bradley v. State, 513 So.2d 112 (Fla.1987), in that counsel was not given the opportunity to assist in formulating the answer. We first note that the juror simply said that he had a question rather than asking a question. In any event, neither counsel said anything either before or after the judge's response, and they had every opportunity to do so. Under these circumstances, we find no violation of the rule. See Colbert v. State, 569 So.2d 433 (Fla.1990). Our recent decision in Mills v. State, 620 So.2d 1006 (Fla.1993), is distinguishable because there the judge never disclosed what he had been asked until he responded to the jury's question. Atwater's assertion that the judge's statement was erroneous because it implicitly discouraged further communication between the judge and jury is totally without merit.

While Atwater does not challenge insufficiency of the evidence to convict of the murder, our review of the record demonstrates overwhelming evidence of guilt. However, Atwater attacks his conviction of robbery. ¹ He claims that the evidence introduced by the State to support the charge was not sufficient. At trial, Atwater presented two defenses to robbery. First, the theft was an afterthought and, therefore, Atwater did not have the requisite intent to commit robbery. Second, the State failed to prove that Atwater actually took anything. The State argues that there was competent evidence established to rebut any reasonable hypothesis of innocence.

Where circumstantial evidence is relied upon to prove a crime, in order to overcome a defendant's motion for judgment of acquittal, the burden is on the State to introduce evidence which excludes every reasonable hypothesis except guilt. The State is not required to conclusively rebut every possible variation of events which can be inferred from the evidence but only to introduce competent evidence which is inconsistent with the defendant's theory of events. State v. Law, 559 So.2d 187, 189 (Fla.1989). Once this threshold burden has been met, the question of whether the evidence is sufficient to exclude all reasonable hypotheses of innocence is for the jury to determine.

In the instant case, the State presented testimony showing that Atwater had obtained money from Smith on previous occasions, that Smith feared Atwater, and that, on the day of the murder, Smith told a friend that he was not going to give Atwater any more money. Further, there was evidence that Smith had cash in his trousers pocket shortly before the killing. When the body was found, the pockets were turned out and the only money found in the room was a few pennies on the floor. We conclude that the judge properly denied the motion for judgment of acquittal and that there was sufficient evidence to convict of robbery.

Atwater next raises a number of issues regarding the penalty phase of the trial. Atwater argues that the trial court erred by allowing evidence of lack of remorse before the jury. On direct examination, Dr. Merin discussed Atwater's antisocial personality. We agree that the court erred in permitting the State on cross-examination to ask him whether persons with antisocial personality showed remorse. However, we find that, on this record, the error was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129, 1134-35 (Fla.1986). ²

In his sentencing order, the trial judge found the following aggravating factors existed in the instant case: (1) the murder was committed while Atwater was engaged in the commission of a robbery; (2) the murder was especially heinous, atrocious, or cruel; and (3) the murder was cold, calculated, and premeditated. Sec. 921.141(5)(d), (h), (i), Fla.Stat. (1989). Atwater claims that the jury instruction on the heinous, atrocious, or cruel aggravating factor was unconstitutionally vague. He also claims that there was insufficient evidence to support this aggravating factor.

Prior to the penalty phase of the trial, defense counsel requested that a Dixon instruction ³ be given. After a lengthy discussion between the defense, prosecution, and trial judge regarding the merits of the Dixon instruction, the judge decided to give only the first half of that instruction, defining the terms "heinous, atrocious or cruel." The instruction, which was eventually given to the jury, was essentially the same as the one held to be inadequate in Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990). While the defense made no further objection to the instruction as given, we believe the point was sufficiently preserved for appeal by virtue of the prior request for a legally proper instruction.

Notwithstanding, we conclude that the giving of the erroneous instruction was harmless beyond a reasonable doubt. DiGuilio, 491 So.2d at 1134-35. The victim in this case was stabbed at least forty times. The sentencing order recites:

The Court has carefully reviewed the evidence and finds, in fact, that [the heinous, atrocious, or cruel aggravating] factor does exist beyond a reasonable doubt. In reaching this conclusion, the Court has considered evidence that the Defendant killed his sixty-four (64) year old victim by inflicting nine (9) stab wounds to the back, eleven (11) incised wounds to the face, six (6) incised wounds to the neck, one (1) incised wound to the left ear, one (1) incised wound to the right shoulder, one (1) incised wound to the right thumb, nine (9) stab wounds to the...