Bates v. State, 63594

• Decision Date: 31 January 1985
• Docket Number: No. 63594,63594
• Citation: 10 Fla. L. Weekly 97,465 So.2d 490
• Parties: 10 Fla. L. Weekly 97 Kayle Barrington BATES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 490

465 So.2d 490

10 Fla. L. Weekly 97

Kayle Barrington BATES, Appellant, v. STATE of Florida, Appellee.

No. 63594.

Supreme Court of Florida.

Jan. 31, 1985.

Rehearing Denied March 25, 1985.

Michael E. Allen, Public Defender, and David A. Davis, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Andrew Thomas, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Kayle Bates appeals his conviction of first-degree murder and sentence of death. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm his conviction, but remand for resentencing.

A four-count indictment charged Bates with first-degree murder, kidnapping, sexual battery, and armed robbery. Bates abducted a woman from her office, took her into some woods behind the building, attempted to rape her, stabbed her to death, and tore a diamond ring from one of her fingers. The jury convicted Bates of first-degree premeditated murder, kidnapping, attempted sexual battery, and armed robbery and recommended the death sentence. The judge agreed and sentenced him to death for the homicide, to two terms of life imprisonment for the kidnapping and armed robbery, and to fifteen years for the attempted sexual battery.

As his first point on appeal, Bates claims that the trial court erred in adjudging him guilty of robbery, attempted sexual battery, and kidnapping because the jury acquitted him of felony murder. Essentially, this rather confused and confusing argument boils down to a claim that the jury rendered inconsistent verdicts. On its verdict form for the first count the jury could pick one of eighteen possible choices, ranging from first-degree premeditated murder to not guilty. That the jury found sufficient evidence of premeditation to convict Bates of first-degree premeditated murder does not mean that it acquitted him of felony murder--it simply made a choice, as instructed. We hold that substantial competent evidence supports all of the convictions and find this point to be without merit.

Bates also contends that the evidence shows that he abandoned the attempt to commit a sexual battery and that, therefore, he could not be convicted of that crime. Notwithstanding the failure to raise this defense at trial, the evidence shows that Bates "abandoned" the sexual battery because he experienced a premature ejaculation. We do not find this occurrence to be the "complete and voluntary renunciation of his criminal purpose" so as to constitute a defense under subsection 777.04(5)(a), Florida Statutes (1981).

Similarly unavailing is Bates' argument that the state failed to prove armed robbery because, since he claims that he took the ring after the victim's death, the state did not show that it had been taken "by force, violence, assault, or putting in fear." § 812.13(1), Fla.Stat. (1981). Bates had the victim's ring in his pocket when arrested, and evidence introduced at trial showed that the victim's finger had been injured when the ring was removed. As we stated in McCloud v. State, 335 So.2d 257, 258 (Fla.1976), "[a]ny degree of force suffices to convert larceny into a robbery." We find Bates' argument to be without merit. But for the force and violence used against and done to the victim, Bates would not have obtained her ring. The evidence supports the conviction of armed robbery. See Ferguson v. State, 417 So.2d 631 (Fla.1982); Hallman v. State, 305 So.2d 180 (Fla.1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976).

In sentencing Bates to death the trial court found that the following aggravating circumstances had been established: 1) committed during the commission of three felonies; 2) committed for the purpose of avoiding or preventing arrest; 3) committed for pecuniary gain; 4) especially heinous, atrocious, and cruel; and 5) committed in a cold, calculated, and premeditated manner. § 921.141(5)(d), (e), (f), (h), (i), Fla.Stat. (1981). In mitigation the court found that Bates had no significant history of prior criminal activity. § 921.141(6)(a). Bates now challenges all but the fourth aggravating factor listed above.

Bates' challenge to finding murder during commission of a felony depends on his argument that his felony convictions should be reversed because the jury acquitted him of felony murder. As we held earlier in this opinion, the jury did not acquit Bates of felony murder; it merely chose to convict him of premeditated murder. The state's evidence proved the applicability of this aggravating circumstance beyond a reasonable doubt. Williams v. State, 386 So.2d 538 (Fla.1980).

Bates also claims that the trial court improperly doubled up two aggravating factors in finding that the homicide was committed both during the course of a robbery and for pecuniary gain. The trial court, however, stated its awareness of the general rule prohibiting dual consideration of these two factors. The court then found both the felony murder and the pecuniary gain factors allowable because "the murder was committed during the course of a kidnapping and an attempted sexual battery. Under the total circumstances the fact that a robbery also occurred does not prevent the court from considering the pecuniary gain aspect of the crime." Finding pecuniary gain in aggravation is not error when several felonies, including robbery, have occurred. See Smith v. State, 424 So.2d 726 (Fla.1982).

We agree with Bates, however, that the trial court improperly found the avoid arrest and cold, calculated, and premeditated aggravating circumstances. Concerning avoiding arrest, in Riley v. State, 366 So.2d 19, 22 (Fla.1978), we held that

the mere fact of death is not enough to invoke this factor when the victim is not a law enforcement officer. Proof of the requisite intent to avoid arrest and detection must be very strong in these cases.

The mere fact that a victim might be able to identify an assailant is insufficient. Moreover, "it must be clearly shown that the dominant or only motive for the murder was the elimination of" the witness. Oats v. State, 446 So.2d 90, 95 (Fla.1984); Menendez v. State, 368 So.2d 1278 (Fla.1979). Compare Herring v. State, 446 So.2d 1049 (Fla.), cert. denied, 469 U.S. 989, 105 S.Ct. 396, 83 L.Ed.2d 330 (1984) (defendant stated that he shot robbery victim a second time to prevent his testifying against him); Clark v. State, 443 So.2d 973 (Fla.1983) (defendant told cellmate that victim could identify him, victim knew defendant, victim knew or soon would know that violent felony had been committed on her husband); Vaught v. State, 410 So.2d 147 (Fla.1982) (victim announced that he recognized assailant, defendant shot victim five times to make sure he was dead). In the instant case the victim was not a police officer and did not know her assailant. Also, the contention that Bates killed the victim solely to avoid her identifying him is mere speculation. We do not find the proof strong enough to support finding that Bates committed this murder in order to avoid or prevent his lawful arrest.

We also find the evidence insufficient to prove beyond a reasonable doubt that Bates committed this murder in a cold, calculated, and premeditated manner. Although the jury convicted Bates of premeditated murder, the evidence of premeditation does not rise to the level needed to support this aggravating circumstance. See Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982). This aggravating factor "is not to be utilized in every premeditated murder prosecution," and is reserved primarily for "those murders which are characterized as execution or contract murders or witness-elimination murders." Herring v. State, 446 So.2d at 1057. This was not an execution or contract murder, and we have found the proof insufficient to support murder for the purpose of eliminating a witness. There was no heightened premeditation or evidence of reflective calculation. Instead, it is as likely that what started as a burglary resulted in a situation simply getting out of hand.

After striking these two factors we are left with three valid aggravating circumstances to be weighed against one mitigating circumstance. ^* The analysis of aggravating and mitigating circumstances and the appropriate sentence "is not a mere counting process." State v. Dixon, 283 So.2d 1, 10 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). As a reviewing court, we do not reweigh the evidence. Brown v. Wainwright, 392 So.2d 1327 (Fla.), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). We have consistently held that the weighing of aggravating circumstances is the trial judge's function. When the evidence does not support an aggravating factor and there are mitigating circumstances to be weighed, the death sentence should be vacated and the case remanded to the trial judge for reconsideration without utilizing the insufficiently established aggravating circumstances because we cannot know if the result would have been different if the impermissible circumstances had not been used. Oats; Lewis v. State, 377 So.2d 640 (Fla.1979); Menendez; Riley. See Moody v. State, 418 So.2d 989 (Fla.1982), cert. denied, 459 U.S. 1214, 103 S.Ct. 1213, 75 L.Ed.2d 451 (1983).

Hence, we vacate the death sentence and remand to the trial court for a reweighing of the valid aggravating circumstances against the mitigating evidence. Bates' convictions are affirmed as are the sentences for robbery, kidnapping, and attempted sexual battery.

It is so ordered.

OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.

BOYD, C.J., and ALDERMAN, J., concur in part and dissent in part with opinions, in which ADKINS, J., concurs.

ADKINS, J., concurs in conviction but dissents from sentence.

BOYD, Chief Justice, concurring in part and dissenting in part.

I concur in the decision of the Court to affirm the judgments of...