Brown v. State

• Decision Date: 27 June 1985
• Docket Number: No. 62922,62922
• Citation: 473 So.2d 1260,10 Fla. L. Weekly 343
• Parties: , 10 Fla. L. Weekly 343 Larry Donnell BROWN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1260

473 So.2d 1260

67 A.L.R.4th 917, 10 Fla. L. Weekly 343

Larry Donnell BROWN, Appellant, v. STATE of Florida, Appellee.

No. 62922.

Supreme Court of Florida.

June 27, 1985.

Rehearing Denied Aug. 30, 1985.

James Marion Moorman, Public Defender and Robert F. Moeller, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.

Jim Smith, Atty. Gen., and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellee.

BOYD, Chief Justice.

This cause is before the Court on appeal of convictions of first-degree murder and burglary and the death sentence imposed for the capital offense. The death sentence gives the Court jurisdiction of the appeal. Art. V, section 3(b)(1), Florida Constitution. Brown also appeals the sentence imposed for the offense of burglary. We affirm the convictions, the sentence for burglary, and the sentence of death.

On February 5, 1981, workers from a social service agency found eighty-one-year-old Anna Jordan dead in her St. Petersburg home. The victim had been bound and sexually battered before she died of asphyxiation. The police found that the victim's house had been ransacked and a portable television taken. While in jail on an unrelated charge, Larry Brown implicated George Dudley in the crimes and led the police to the purchaser of the stolen television. The police confronted Dudley with Brown's accusations. Dudley admitted his presence during the crimes, but informed the police that Brown planned the burglary, bound and sexually battered the victim, and sold the television set in a bar for twenty dollars. The buyer of the television corroborated Dudley's story. Dudley was allowed to plead guilty to burglary and second-degree murder and became the main witness against Brown, who was indicted for first-degree murder and burglary with an assault.

At trial Dudley testified that Brown bound the victim and struck her once. Dudley also stated that Brown's stepson, Ricky, who had not been located by the date of the trial, committed the sexual battery while Brown ransacked the house. Dudley claimed to have just stood around during the commission of the crimes. The medical examiner testified that certain physical evidence found at the scene indicted that the perpetrators had gagged the victim in addition to binding her arms and neck. The medical examiner stated clearly that the victim died of asphyxiation but could not state with certainty whether the airway obstruction resulted from the binding, from a gag, or from manual strangulation.

The jury found Brown guilty as charged on both counts. At the conclusion of the penalty phase of the trial, the jury recommended that Brown be sentenced to life imprisonment for the murder. The trial court overrode the jury recommendation and proceeded to impose the death penalty after finding the aggravating circumstances far outweighed any mitigating circumstances. Brown was also sentenced to a consecutive life sentence for the offense of burglary during which an assault was committed.

Brown presents many alleged errors in his convictions and sentences. After a careful examination of the record, we conclude that no reversible error occurred at the conviction phase of trial. Furthermore, we find that the trial court acted correctly in overriding the jury recommendation of life imprisonment and imposing a sentence of death.

Brown argues first that the trial court erred in overruling his objection to the prosecutor's remarks in closing argument about attempts by the defense to intimidate Dudley. We have examined these remarks in light of the standard set forth in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), and find the remarks did not deprive Brown of a fair trial. By failing to object at trial, Brown waived any error in alleged comments on his failure to present evidence. See Maggard v. State, 399 So.2d 973, 976 (Fla.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981).

We also reject Brown's argument that the trial court erred by not providing meaningful relief for a state discovery violation and by allowing hearsay testimony concerning the relationship between Brown and his stepson, Ricky. The trial court conducted a Richardson ¹ inquiry, found the state had inadvertently committed a substantial discovery violation, and remedied the violation by refusing to admit into evidence a photographic identification of Ricky made by Dudley and by forbidding any mention by Dudley of Ricky Brown's last name. We find the trial court's actions "remedied in a manner consistent with the seriousness of the breach," Zeigler v. State, 402 So.2d 365, 372 (Fla.1981), cert. denied, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982), any discovery violations. Brown was not entitled to a continuance because he obviously knew about Ricky at the time of Dudley's pre-trial statement. The alleged hearsay testimony concerning the family relationship between Brown and Ricky was either admissible under section 90.804(2)(d), Florida Statutes (1981), as a statement of family history by the unavailable declarant Ricky, or was harmless error in light of the compelling evidence of guilt against Brown.

We also find no merit in the argument that the burglary with assault charge should have been dismissed for failing to specify the nature of the assault. Even if the failure to specify the facts of the assault rendered the indictment deficient, the deficiency does not constitute fundamental error. Brown had access to the medical examiner's report on the victim's injuries as well as Dudley's deposition testimony about the crimes. Brown has failed to demonstrate any prejudice to his defense. The trial court properly refused to dismiss the burglary count.

Brown contends that the trial court should have granted in their entirety his motions for particulars of the offenses charged. We disagree. The trial court granted one of Brown's motions in part, and the state responded with a statement of particulars in compliance with Florida Rule of Criminal Procedure 3.140(n). The rest of Brown's motions essentially asked the state to prove the entire case before trial. The trial court acted correctly in denying the remainder of Brown's motions for particulars.

We also disagree with Brown's argument that the jury should have been provided with special verdict forms which would have indicated whether the first-degree murder conviction was based upon premeditated murder or felony murder. Neither constitutional principles nor rules of law or procedure require such special verdicts in capital cases. The sentencing and reviewing courts can determine that a defendant may not constitutionally receive the death penalty where that defendant "aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 3376, 73 L.Ed.2d 1140 (1982). The special jury verdict requested by Brown would not have resolved this question.

We note that Brown has not challenged the sufficiency of the evidence presented at trial to convict him as charged. Our review of the entire record convinces us that the evidence was quite sufficient to support both convictions.

Brown raises two issues concerning the propriety of his consecutive life sentence for burglary. He first claims that the trial court failed to orally impose sentence on this conviction at the sentencing hearing. The supplemental record of the sentencing hearing shows that the trial court sentenced Brown on the burglary conviction at a continuation of the sentencing hearing held later that same day; hence, there was no procedural error.

Brown also argues that it was error to impose a sentence for burglary because the burglary was the underlying felony and the conviction was based upon a felony-murder theory. The premise of appellant's argument is incorrect. Here the offense of first-degree murder was established by proof of premeditation. Therefore, the crimes of murder and burglary with an assault were clearly separate offenses, properly subject to separate prosecutions, convictions, and sentences.

Appellant presents a large number of challenges to the sentence of death. He argues that improper aggravating circumstances were considered by the sentencing judge; that valid mitigating circumstances were excluded from consideration; that the sentence of death is inappropriate as a matter of law on several grounds; and that the process by which the sentence of death was imposed was constitutionally deficient on several grounds. We will briefly address each of the arguments.

Appellant argues that the trial judge committed error requiring reversal of the death sentence when he remarked on the record that appellant had "led a parasitic existence." Appellant argues that this "finding" was not a valid aggravating circumstance and that it was not supported by evidence. This argument is without merit because the judge's oral comment was not a part of the formal written findings of fact in support of the sentence of death prepared in accordance with section 921.141(3), Florida Statutes (1981). A comment of this kind is not necessarily a finding of a non-statutory aggravating circumstance. See Vaught v. State, 410 So.2d 147, 151 (Fla.1982). There is no showing here of improper influence of this remark on the process of weighing aggravating and mitigating circumstances.

Appellant argues that there was error in the court's finding, as an aggravating circumstance, that appellant "was on parole for Burglary at the time of this offense having been sentenced to four (4) years in the Department of Corrections on March 14, 1978." Appellant says that this is not a clear finding of the statutory aggravating circumstance authorized by section 921.141(5)(a) and that the factual support for the finding was deficient in that it...