Bowles v. State, SC96732.

• Decision Date: 11 October 2001
• Docket Number: No. SC96732.,SC96732.
• Parties: Gary Ray BOWLES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

804 So.2d 1173

Gary Ray BOWLES, Appellant, v. STATE of Florida, Appellee.

No. SC96732.

Supreme Court of Florida.

October 11, 2001.

Rehearing Denied January 10, 2002.

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

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

PER CURIAM.

We have on appeal an order of the trial court imposing a death sentence upon Gary Ray Bowles on resentencing. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm the death sentence.

Our prior opinion sets forth the facts of this crime:

Appellant [Bowles] met Walter Hinton, the victim in this case, at Jacksonville Beach in late October or early November 1994. Appellant agreed to help Hinton move some personal items from Georgia to Hinton's mobile home in Jacksonville. In return, Hinton allowed appellant to live with him at his mobile home.

On November 22, 1994, police arrested appellant for the murder of Walter Hinton. During subsequent interrogation, appellant gave both oral and written confessions regarding Hinton's murder. Appellant stated that upon returning home from going with Hinton to take a friend [Richard Smith] to the train station, Hinton went to sleep and appellant kept drinking. Appellant, Hinton, and the friend had drunk beer and smoked marijuana earlier. At some point in the evening, appellant stated that something inside "snapped." He went outside and picked up a concrete block, brought it inside the mobile home, and set it on a table. After thinking for a few minutes, appellant picked up the block, went into Hinton's room, and dropped the brick on Hinton's head. The force of the blow caused a facial fracture that extended from Hinton's right cheek to his jaw. Hinton, now conscious, fell from the bed and appellant began to manually strangle him. Appellant then stuffed toilet paper into Hinton's throat and placed a rag into his mouth. The medical examiner testified that the cause of death was asphyxia.

Bowles v. State, 716 So.2d 769, 770 (Fla. 1998).

The grand jury indicted Bowles in December of 1994 on charges of first-degree murder and robbery. Bowles pled guilty to premeditated first-degree murder. The penalty phase proceeded, and following the jury's ten-to-two recommendation for death, the trial court sentenced Bowles to death. On appeal, this Court affirmed the conviction but vacated the death sentence and remanded for resentencing. See Bowles, 716 So.2d at 769

. We found that the trial court erred in allowing the State to introduce in the penalty phase evidence of Bowles' alleged hatred of homosexual men. See id. at 773. We concluded that the presentation of such evidence was not harmless because it became a prevalent feature of the penalty phase, thereby placing in doubt the reliability of the sentencing proceeding. See id.

On remand, the resentencing jury unanimously recommended death. In imposing the death penalty the trial court found the following five aggravating circumstances: (1) Bowles was convicted of two other capital felonies and two other violent felonies; (2) Bowles was on felony probation in 1994 when he committed the murder as a result of a July 18, 1991, conviction and sentence to four years in prison followed by six years probation for a robbery he committed in Volusia County; (3) the murder was committed during a robbery or an attempted robbery, and the murder was committed for pecuniary gain (merged into one factor); (4) the murder was heinous, atrocious, or cruel (HAC); and (5) the murder was cold, calculated, and premeditated (CCP).

The trial court assigned tremendous weight to the prior violent capital felony convictions. On September 27, 1982, in Hillsborough County, Bowles was convicted of sexual battery and aggravated sexual battery. These offenses involved an extremely high degree of violence. The victim, Bowles' girlfriend at the time, was brutally attacked, suffering contusions to her head, face, neck, and chest, as well as bites to her breasts. The victim also suffered internal injuries including lacerations to her vagina and rectum. On July 18, 1991, Bowles was convicted in Volusia County of unarmed robbery. In this offense, Bowles pushed a woman down and stole her purse. On August 6, 1997, in Volusia County, Bowles was convicted of first-degree murder and armed burglary of a dwelling with a battery. In this crime, a few days after moving into the victim's home, Bowles approached the victim from behind and hit him with a lamp. A struggle ensued during which Bowles strangled the victim and stuffed a rag into his mouth. Bowles then emptied the victim's pockets, took his credit cards, money, keys, and wallet. On October 10, 1996, in Nassau County, Bowles was convicted of first-degree murder. The victim befriended Bowles and allowed Bowles to stay at his home. Bowles and the victim got into an argument and a fight outside of a bar. Bowles hit the victim over the head with a candy dish, and a struggle ensued, resulting in the victim being beaten and shot. Bowles also strangled the victim and tied a towel over his mouth.

The trial court assigned great weight to the HAC and CCP aggravators, significant weight to the robbery-pecuniary gain aggravator, and some weight to the fact that Bowles was on probation for robbery at the time of this murder.

The trial court rejected the two statutory mitigators advanced by Bowles: (1) extreme emotional disturbance at the time of the murder and (2) substantially diminished capacity to appreciate the criminality of his acts at the time of the murder. The trial court found and assigned weight to the following nonstatutory mitigating factors: significant weight to evidence that Bowles had an abusive childhood; some weight to Bowles' history of alcoholism and absence of a father figure; little weight to Bowles' lack of education; little weight to Bowles' guilty plea and cooperation with police in this and other cases; little weight to Bowles' use of intoxicants at the time of the murder; and no weight to the circumstances which caused Bowles to leave home or his circumstances after he left home. The trial court concluded that the aggravating circumstances overwhelmingly outweighed the mitigating circumstances.

On appeal to this Court, Bowles raises twelve issues. Bowles claims that: (1) the trial court erred in allowing the use of peremptory challenges to remove prospective jurors who were in favor of the death penalty but would only impose it under appropriate circumstances; (2) the trial court erred in allowing the State to introduce in aggravation for the first time at this resentencing hearing evidence of two prior similar murders for which the defendant was convicted after the first sentencing hearing; (3) the trial court erred in finding HAC; (4) the trial court erred in rejecting the proposed HAC jury instruction; (5) the trial court's CCP instruction to the jury was unconstitutionally vague; (6) the trial court erred in finding the robbery-pecuniary gain aggravator; (7) the trial court erred by giving little weight or no weight to the nonstatutory mitigators; (8) the trial court erred in rejecting the proposed victim impact evidence jury instruction; (9) the trial court erred by rejecting the two statutory mental mitigators of extreme emotional disturbance at the time of the murder and substantially diminished capacity to appreciate the criminality of acts at the time of the murder; (10) the trial court erred in giving the standard jury instruction on mitigation instead of the requested specific nonstatutory mitigation instructions; (11) the trial court erred in rejecting the requested jury instructions defining mitigation; and (12) the trial court committed reversible error in allowing impermissible hearsay.

We summarily reject Bowles' claims that have been previously considered and rejected. Bowles' first claim, that the use of peremptory challenges was improper, is without merit. We have previously stated that the Florida Constitution does not bar the State and the defense from peremptorily striking persons thought to be inclined against their respective interests. See San Martin v. State, 705 So.2d 1337, 1343 (Fla.1997)

. Bowles' second claim, that the trial court erred in allowing the introduction of two prior murder convictions, is without merit, as we have previously held that a resentencing court may find aggravators not found in the original sentencing proceeding. See Preston v. State, 607 So.2d 404, 407-09 (Fla.1992). Bowles' fourth claim, alleging that the proposed special HAC jury instruction which included an intent element was erroneously rejected, is without merit. See Guzman v. State, 721 So.2d 1155, 1160 (Fla.1998) (there is no necessary intent element to HAC aggravating circumstance). Bowles' fifth claim, concerning the standard CCP jury instruction, is without merit as we have found that the standard CCP jury instruction is not unconstitutionally vague. See Donaldson v. State, 722 So.2d 177, 187 n. 12 (Fla.1998). Bowles' eighth claim, concerning the victim impact evidence jury instruction, is without merit because the trial court properly instructed that, while the jury was allowed to hear victim impact evidence, it could not be considered as an aggravating circumstance in sentencing Bowles. This instruction comports with the requirements of Alston v. State, 723 So.2d 148, 160 (Fla.1998), and Windom v. State 656 So.2d 432, 438 (Fla.1995). Bowles' tenth and eleventh claims are without merit, as we have repeatedly rejected the argument that a trial court errs in giving the standard jury instruction on mitigation. See Davis v. State, 698 So.2d 1182, 1192 (Fla.1997). We turn to issues three, six, seven, and twelve, which we now discuss in further detail.

I. ISSUES THREE AND SIX

In his third and sixth claims,...