Bonifay v. State, 84918

• Decision Date: 11 July 1996
• Docket Number: No. 84918,84918
• Citation: 680 So.2d 413
• Parties: 21 Fla. L. Weekly S301 James Patrick BONIFAY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 413

680 So.2d 413

21 Fla. L. Weekly S301

James Patrick BONIFAY, Appellant, v. STATE of Florida, Appellee.

No. 84918.

Supreme Court of Florida.

July 11, 1996.

Rehearing Denied Sept. 5, 1996.

Michael R. Rollo, Pensacola, for Appellant.

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

PER CURIAM.

James Patrick Bonifay appeals the death sentence imposed upon him at resentencing. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm.

Bonifay was convicted of first-degree murder, armed robbery, and grand theft. The facts surrounding these crimes are set forth in Bonifay v. State, 626 So.2d 1310 (Fla.1993). Following the jury's recommendation, the trial court sentenced Bonifay to death. On appeal, we affirmed the convictions but vacated the death sentence because the trial court improperly found that the murder was heinous, atrocious, or cruel. We then remanded the case to the trial court to conduct a new sentencing proceeding before a jury. Id. at 1313.

After hearing evidence and argument, the resentencing jury recommended death for Bonifay by a vote of ten to two. The trial court followed that recommendation, finding that the aggravating circumstances ¹ outweighed the mitigating circumstances. ²

On appeal, Bonifay raises the following eight issues with regard to his sentence: (1) the trial court failed to make a specific finding regarding the expert testimony about the defendant's organic brain damage and whether that brain damage substantially impaired the defendant's ability to appreciate the criminality of his acts or to conform his conduct to the requirements of law; (2) the evidence does not support the death sentence; (3) the trial court erred in finding that the defendant is not capable of rehabilitation; (4) the prosecutor's repeated biblical references unduly influenced the jury; (5) the trial court erred in not declaring a mistrial when the prosecutor urged the jury to exterminate the defendant; (6) the trial court erred in allowing the State to introduce evidence of the victim's begging for his life; (7) the trial court erred in allowing the State to introduce improper victim-impact evidence; and (8) the cumulative effect of trial court's combined errors was prejudicial and fundamental error. We find no merit in any of these issues and affirm the death sentence. ³

First, we turn to Bonifay's issue 1: whether the sentencing order in this case is deficient because the trial court erred in failing to cite Bonifay's organic brain damage. At the resentencing, Dr. James Larson, a psychologist, testified regarding Bonifay's mental condition. After administering several psychological tests and reviewing other records, Dr. Larson opined that Bonifay suffered from attention deficit disorder. Dr. Larson further stated that based on this finding, it was his impression that Bonifay suffered organic brain damage. ⁴ Bonifay contends that the trial court's failure to expressly note this brain damage, combined with its failure to address whether this condition affected Bonifay's capacity to appreciate the criminality of his conduct, made the sentencing order deficient.

The trial court, in considering allegedly mitigating evidence, must determine whether the facts alleged in mitigation are supported by the evidence. See Rogers v. State, 511 So.2d 526, 534 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988). After making this factual determination, the trial court must then determine whether the established facts are of a kind capable of mitigating the defendant's punishment. ⁵ The decision as to whether a mitigating circumstance has been established is within the trial court's discretion. See Preston v. State, 607 So.2d 404 (Fla.1992), cert. denied, 507 U.S. 999, 113 S.Ct. 1619, 123 L.Ed.2d 178 (1993); Lucas v. State, 568 So.2d 18 (Fla.1990).

To support his position, Bonifay relies on Larkins v. State, 655 So.2d 95 (Fla.1995). In Larkins, a psychologist for the defense testified that the defendant suffered both a mental and an emotional disturbance and that the defendant's organic brain damage impaired his capacity to control his conduct. Id. at 100. Additionally, the expert testified about the defendant's personal history, which the defendant claimed established other nonstatutory mitigating circumstances. However, the trial court's order made only a cursory reference to the psychologist's testimony and did not explain whether the court found any statutory mitigating circumstances based on this testimony. The order in Larkins also summarily rejected all nonstatutory mitigating circumstances. Id. at 100-01. ⁶ Finding that the trial court's order was inconsistent with the mitigating evidence presented, we directed the trial court to reevaluate its sentencing order consistent with the requirements of Campbell v. State, 571 So.2d 415 (Fla.1990). ⁷

Contrary to the deficient sentencing order in Larkins, the trial court's order in this case expressly addressed the testimony regarding this mitigator. The trial court found:

Patrick Bonifay's mother testified he had problems in school, he was extremely overactive and disruptive, and he had a lot of behavior problems. He took Ritalin in one of his ninth grade years and was expelled once. He admitted to Dr. Gilgun he was expelled for breaking another student's jaw in a fight at Escambia High School.

Dr. James Larson, a Psychologist, evaluated Bonifay prior to the new penalty phase proceeding and administered a number of psychological tests on him. He determined Bonifay's verbal IQ was 98--which is in the average range--and his performance IQ was 117. This 19 point difference indicated to Dr. Larson that Bonifay had some cognitive disorder, such as attention deficit disorder. He confirmed that the school identified in about the fifth grade that Bonifay had an attention deficit disorder and placed him in an emotionally handicapped classroom for a number of years. This disorder means Bonifay's ability to attend and concentrate is impaired. Also, Dr. Larson found Bonifay to exhibit impulsive behavior as a part of his attention deficit disorder.

Additionally, Dr. Larson testified Bonifay had a dysthymic disorder, referring to depression. He said it is at a level which is chronic, but not present every day and it is "a very common disorder seen in the general population." Dr. Larson also said Bonifay exhibited a personality disorder, referring to a personality functioning that is unstable, exhibiting mood swings, possible irrationality, difficulty maintaining good relationships, and susceptibility to being easily guided by another. According to Dr. Larson, Bonifay has a negative self-image as a result of his disruptive home environment, which included his biological father's abuse of him and his mother. In turn, Bonifay feels rejected and is an angry person, in conflicts with peers and with authority figures.

Finally, Dr. Larson noted Bonifay has a history of suicidal ideation and perhaps two or three attempts or gestures. Yet, he acknowledged some of Bonifay's medical records reveal he denied suicide ideations.

In terms of talents, Dr. Larson said of Bonifay: "He's better than the average college freshman in terms of problem solving when he can look at things and try to put things together, good judgment in that area. He was able to read quite early on and at an advanced level actually and he reads at an excess of the 12th grade level."

Dr. Larson acknowledged that another psychologist, Dr. Gilgun, indicated the defendant had fairly good insight and judgment. Bonifay knows the difference between right and wrong, according to Dr. Larson, and he has no psychosis or major mental illness.

Clearly, proof of this mitigating circumstance does not require proof of insanity. However, the evidence must reveal some mental problems that limit the defendant's capacity to conform his conduct to the requirements of the law. In this case, Patrick Bonifay deliberately coolly and calmly and carefully composed a plan to effect Archer's scheme for revenge. He methodically carried out the plan and deliberately executed Billy Wayne Coker at the conclusion of the robbery. The evidence does not appear to support this mitigator. Nevertheless, if it is established it is entitled to little weight.

We find no error with the trial court's findings as set forth in the sentencing order regarding this mitigator. While the trial court did not specifically mention the term "organic brain damage," the court's discussion about Bonifay's attention deficit disorder refers to Bonifay's organic brain damage. The trial court expressly evaluated the evidence presented on this mitigator, thus complying with the requirements of Rogers and Campbell. The trial court's determination regarding the establishment and weight afforded to this mitigator is supported by competent, substantial evidence; consequently, the sentencing order is sufficient.

Next, we consider Bonifay's contention in issue 2 that the evidence in the record does not support the death sentence. Again, this claim is essentially an attack upon the sufficiency of the trial court's weighing of the mitigators. In support of this issue, Bonifay relies upon our decision in Santos v. State, 591 So.2d 160 (Fla.1991). However, we find this reliance is misplaced because in this case, the trial court did adhere to the procedures required by Rogers and Campbell. Our review of the record reveals competent, substantial evidence to support the trial court's findings regarding the aggravators and mitigators. Additionally, the sentencing order sufficiently shows that the trial court carefully weighed the aggravators and mitigators. ⁸ Thus, we reject Bonifay's contention in respect to this issue.

While not expressly raised by Bonifay, in connection with issue 2, we have considered whether the sentence of death is proportionate and hold that it is....