Besaraba v. State, 80016

• Decision Date: 04 May 1995
• Docket Number: No. 80016,80016
• Citation: 656 So.2d 441
• Parties: 20 Fla. L. Weekly S212 Joseph BESARABA, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 441

656 So.2d 441

20 Fla. L. Weekly S212

Joseph BESARABA, Jr., Appellant, v. STATE of Florida, Appellee.

No. 80016.

Supreme Court of Florida.

May 4, 1995.

Rehearing Denied June 29, 1995.

Richard L. Jorandby, Public Defender, and Jeffrey L. Anderson, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., and Sara D. Baggett, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Joseph Besaraba. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const.

Joseph Besaraba, a homeless person, was riding a local bus on July 23, 1989, near the Fort Lauderdale/Hollywood International Airport when the bus driver, Sidney Granger, stopped the vehicle at approximately 11:15 a.m. and approached Besaraba. The driver yelled at Besaraba, accusing him of drinking an alcoholic beverage on the bus, and told him to either dispose of the beverage or get off the bus. Besaraba remained calm, but left the bus. Besaraba then rode another bus to the Young Circle transfer site in Hollywood, and sat on a bench. After approximately a half-hour, Granger's bus pulled into the site. Besaraba walked up to Granger's bus with a drawn handgun, fired a volley into the side of the bus, walked to the front door and fired a shot into Granger's neck, killing him. Besaraba then fired another shot into passenger Wesley Anderson's back, killing him. Besaraba walked away from the transfer site, approached a car waiting at a red light, and ordered the driver, Scott Yaguda, out of the vehicle. As Yaguda walked away, Besaraba shot him in the back three times. Yaguda did not die. Besaraba left the scene in Yaguda's car, and was captured three days later in Nebraska following a struggle in which Besaraba tried to pull his gun on two officers.

Besaraba was charged with robbery, attempted murder, possession of a firearm during commission of a felony, and two counts of first-degree murder. During the guilt phase of the capital trial, Dr. James Concannon, an expert in the field of psycho-pharmacology, testified that Besaraba has a history of the following: moderate to serious memory problems; paranoid tendencies; organic brain damage; hospital treatment for numerous physical and mental conditions; psychotic or paranoid behavior; alcohol counseling; and delirium. Dr. Concannon testified that Besaraba also participated as a subject in numerous drug tests conducted by pharmaceutical laboratories. After the jury retired, Besaraba read a statement based on voices he had heard:

I've been under surveillance for at least 35 years by government agents, almost certainly the FBI. During this 35 years of surveillance chemical substances were used on me, Joseph Besaraba, for unknown reasons or purposes.

These chemicals were illegally and unknowingly foisted upon me, Joseph Besaraba, on the morning of July 23rd, 1989, before the murders in Young Circle....

These government agents kept records and files of this surveillance and of the types and dosages they used on me, Joseph Besaraba. These files or records would prove my innocence and expose the wrongdoing and illegal acts of the government agents.

I request under the Freedom of Information Act any file the FBI or other agency of the United States have on me, Joseph Besaraba, not admitting to or giving me access to these files.

Besaraba was convicted on all counts.

During the penalty phase, Besaraba's father testified that the family came to the United States in 1949 when Joseph was five years old, after the father spent years as a member of the Polish underground eluding first the Nazis and then the Communists. When Joseph was eighteen, his sister, who was twenty, died of a brain tumor after suffering for two years. Shortly thereafter, Joseph seriously injured his head in a car accident, was unconscious for two days, and spent six weeks in the hospital. Afterwards, Joseph began acting strangely and talking nonsense, and his parents had him hospitalized again. Joseph believed the "underground" was after him, and complained to his father that a neighbor was putting poison on his furniture. Besaraba's mother died in an automobile accident while visiting Poland.

Other friends, acquaintances, and experts testified in Besaraba's favor. Dr. Ross Seligson, a psychiatrist, testified that Besaraba has a history of the following: alcoholic hepatitis; spitting up blood; weight loss and malnourishment; extensive alcohol abuse; sleep apnea; paranoid schizophrenia; paranoid ideas that people are after him; probable organic brain syndrome; bizarre delusions; hallucinations; and a family history of mental illness and alcoholism.

The jury voted seven to five for death, and the court imposed the death penalty in each first-degree murder count after finding two aggravating circumstances, ¹ two statutory mitigating circumstances, ² and three nonstatutory mitigating circumstances. ³ The court arrested judgment on the offense of carrying a firearm during commission of a felony, and imposed consecutive life sentences on the robbery and attempted murder charges. Besaraba appeals his convictions and sentences, raising twenty-eight issues. ⁴

Besaraba first claims that the court erred in finding that the murders were committed in a cold, calculated, and premeditated manner. The trial court found this factor present based on reasons paraphrased below:

--Besaraba was highly familiar with the county bus routes and schedules.

--After Besaraba exited Granger's bus following the confrontation, Besaraba reversed his northerly direction of travel and caught a bus travelling south toward Young Circle Bus Terminal.

--Besaraba waited at Young Circle, where Granger's bus would eventually arrive and have to stop.

--During Besaraba's half-hour wait at Young Circle, four other buses arrived at the terminal but he did not approach any of these buses.

--When Granger's bus arrived, Besaraba walked up to the bus with gun drawn and fired several times at close range in a deliberate manner.

This Court has held that to support this aggravating circumstance the evidence must show a heightened level of premeditation, as in a careful plan or prearranged design:

Simple premeditation of the type necessary to support a conviction for first-degree murder is not sufficient to sustain a finding that a killing was committed in a cold, calculated, and premeditated manner. A heightened form of premeditation is required which can be demonstrated by the manner of the killing. To achieve this heightened level of premeditation, the evidence must indicate that a defendant's actions were accomplished in a calculated manner, i.e., by a careful plan or a prearranged design to kill.

Holton v. State, 573 So.2d 284, 292 (Fla.1990) (citations omitted), cert. denied, 500 U.S. 960, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991). We conclude that the evidence contained in this record is insufficient to prove the presence of this factor beyond a reasonable doubt.

The record shows that when Besaraba exited Granger's northbound bus after Granger yelled at him for drinking, Granger had at that time stopped the bus not far from the entrance to the Fort Lauderdale/Hollywood airport in an area that was not a designated stop, at 11:15 Sunday morning. By the time Gregory Austing's southbound bus picked Besaraba up an hour and fifteen minutes later, Besaraba had walked to a marked bus stop near the airport entrance in an area described as "desolate."

According to the bus schedule, Gregory Austing's bus was traveling directly behind Granger's bus on Bus Route 1 that day, at a forty minute interval. Thus, forty minutes before Austing picked up Besaraba at the stop outside the airport, Granger's bus had passed that very stop on its southbound return run. No other intervening buses travelled that portion of the route during this period.

The fact that Besaraba changed direction following his confrontation with Granger does not necessarily show that Besaraba was implementing a plan to kill Granger. Had he planned to do so, he could have confronted Granger at the bus stop outside the airport--an isolated stop in a remote area. Rather, the evidence just as likely shows that Besaraba changed direction based on a spur of the moment decision, or perhaps simply took the first bus in any direction out of a desolate area. We note that when Austing's southbound bus picked Besaraba up, Besaraba was in fact standing at a stop in the northbound lane.

Further, the record shows that when Besaraba boarded Austing's bus, he did not buy a ticket, but rather purchased a "transfer." A ticket, which cost seventy-five cents, would have allowed Besaraba to travel south to Young Circle or to any other point on north-south Bus Route 1, which both Granger and Austing were travelling that day. A transfer, on the other hand, cost eighty-five cents and served the function of two tickets. It would have allowed Besaraba first to travel to any point on Bus Route 1, such as Young Circle, and then to transfer to, and travel on, any interconnecting bus route within a two-hour period. For example, Besaraba could have transferred to a route running in an east-west direction.

The fact that Besaraba purchased a transfer indicates that he planned to take another bus going in a different direction after exiting Austing's bus at Young Circle and may have been waiting for such a bus when Granger's bus pulled into the terminal. Although four buses passed through Young Circle during the half-hour Besaraba was waiting there, a total of 102 buses were scheduled to pass through the terminal that day serving five separate routes, and it is entirely possible that Besaraba's desired bus had not yet arrived.

Finally, the random nature of Besaraba's acts during the crimes belies a careful plan. Besaraba's immediate response when he saw Granger's bus pull into the terminal is not apparent in the record,...