Buckrem v. State, 48029

• Decision Date: 26 January 1978
• Docket Number: No. 48029,48029
• Parties: Franz Peter BUCKREM, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 111

355 So.2d 111

Franz Peter BUCKREM, Appellant, v. STATE of Florida, Appellee.

No. 48029.

Supreme Court of Florida.

Jan. 26, 1978.

Rehearing Denied March 13, 1978.

Gale K. Greene, Sarasota, for appellant.

Robert L. Shevin, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.

ADKINS, Justice.

This is a direct appeal from a judgment adjudging defendant guilty of murder in the first degree and sentencing him to death.

On a Saturday evening, Summers, Caylor, and several other people were having a "get together" at Caylor's apartment. Debbie Townsend, the murder victim, had been living with Caylor (although not married) and was present at the "get together."

During the early morning hours, around 1:00 a. m., Summers and Caylor heard a noise like a gunshot or firecracker and left the apartment to determine what happened. They proceeded to defendant Buckrem's apartment because it sounded as though it came from there. Defendant answered the door. Caylor and Summers said defendant was stumbling and seemed drunk. Defendant denied shooting a gun or firecracker, then asked them if they were "queer." Defendant physically offended Caylor (in a manner not clear in the record) and, according to Summers, was trying to "put the make" on Caylor. Caylor struck defendant, who fell and sustained minor facial injuries. Caylor and Summers then returned to Caylor's apartment.

Susan Wallsman, one of the visitors in Caylor's apartment, went to defendant's apartment right after the altercation and found him on the ground. She helped defendant's wife wash off the blood and defendant stated he was "going to get those kids and he was going to kill Frank," referring to Frank Caylor. Susan testified that defendant appeared to have sobered up prior to her leaving. Shortly after 3:30 a. m., Susan heard a car leave which she believed to be defendant's automobile.

At approximately 4:00 a. m., Susan heard a loud crash, scream and gunshots.

Caylor testified that after his guests left he was sitting on the bed with Debbie Townsend when defendant kicked open the apartment door wielding a shotgun. Defendant punched Caylor in the eye with the barrel of the gun and shot him, almost severing Caylor's arm from his body. After shooting Caylor, defendant shot Debbie Townsend at point blank range causing her immediate death.

Defendant denied the commission of the homicide stating that he and his wife were at a friend's house, where he passed out on the floor. Donna Meyer corroborated defendant's alibi to some extent, but acknowledged that defendant could have left the house after she went to sleep around 4:00 a. m.

The jury returned a verdict of guilty of murder in the first degree for the homicide of Debbie Townsend, and assault with intent to commit murder in the first degree for the shooting of Caylor.

Defendant complains that the assistant state attorney during his argument to the jury made reference to the fact that two witnesses who could have testified relative to appellant's alibi defense were not called by the defense. This argument is without merit. In Jenkins v. State, 317 So.2d 90 (Fla.1st DCA 1975), the court said:

"Alibi was the crucial defense in this case. If a witness knows material facts which will be helpful to a defendant in making his defense, and the witness is competent and available, the defendant's failure to produce the witness is properly a subject of comment by the prosecutor. This is particularly true if the witness is the spouse of the defendant. 23A C.J.S. Criminal Law § 1099b, page 181; 5 A.L.R.2d 930." At 91.

The other contentions of defendant are also without merit. The evidence was sufficient to sustain the verdicts of guilt.

At the conclusion of the penalty phase of the proceedings, the jury recommended that life imprisonment be imposed upon the defendant. The trial judge did not follow the recommendations of the jury and imposed the death sentence with the following findings:

"It is the Sentence and Judgment of this Court that you, for your said offense of Murder In The First Degree be committed to the Florida State Prison, and that you be sentenced to death, the Court finding under Florida Statutes, Chapter 921, that there are no significant mitigating circumstances, and that sufficient aggravating circumstances exist. The murder was especially heinous and atrocious. The defendant and the victim, a young girl, were strangers to each other, and the defendant after shooting the victim's boyfriend, heard her scream, whereupon he turned and shot her though the arms and chest with a shotgun. There was some evidence that the defendant had been drinking intoxicating liquor for some time prior to the murder. However, there was ample testimony to show that the defendant at the time of the murder was well aware of his actions...