Burns v. State

• Decision Date: 10 July 1997
• Docket Number: No. 84299,84299
• Parties: 22 Fla. L. Weekly S419 Daniel BURNS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 646

699 So.2d 646

22 Fla. L. Weekly S419

Daniel BURNS, Appellant, v. STATE of Florida, Appellee.

No. 84299.

Supreme Court of Florida.

July 10, 1997.

Rehearing Denied Sept. 17, 1997.

James Marion Moorman, Public Defender and Paul C. Helm, Assistant Public Defender, Tenth Judicial Circuit, Bartow, for Appellant.

Robert A. Butterworth, Attorney General and Carol M. Dittmar, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Daniel Burns appeals the death sentence imposed upon him after remand. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution, and we affirm Burns' sentence.

A police officer stopped Burns and his companion Samuel Williams as the two were traveling north on Interstate 75. The officer asked the two men for identification and then returned to his vehicle to use the radio. A highway patrol dispatcher confirmed that the officer requested a "persons' check" and a registration check on the tag of the vehicle in which Burns and Williams were traveling. The officer then walked back to Burns and Williams and asked if he could search their vehicle. While searching the trunk, he discovered what appeared to be cocaine. A struggle between the officer and Burns ensued. Williams and several bystanders witnessed the struggle. Burns obtained the officer's gun, and the officer warned the bystanders to stay away. Despite the officer's pleas, Burns shot and killed the officer. Burns told Williams to leave the vehicle, and then Burns fled the scene on foot.

Burns was convicted of first-degree murder and trafficking in cocaine. The jury recommended death, and the trial judge followed the recommendation. On appeal, this Court affirmed Burns' convictions but vacated his death sentence. Burns v. State, 609 So.2d 600 (Fla.1992) (Burns I ). With respect to Burns' sentence, we concluded that the trial judge erroneously found the heinous, atrocious, or cruel aggravator. Id. at 606. We further concluded that the trial judge's error could not be deemed harmless because the judge did not indicate what weight he afforded the single remaining aggravator ¹ or the various mitigating factors. ² Id. at 606-07.

Although the error requiring us to reverse Burns' sentence occurred in the sentencing order rather than the jury proceedings, we ordered a complete new sentencing proceeding before a newly empaneled jury. Id. at 607. We found that a proceeding before a new jury was necessary because evidence erroneously introduced during the guilt phase regarding the victim's characteristics may have improperly influenced the original jury in its sentencing recommendation. Id.

On remand, the jury unanimously recommended death. The trial judge found and merged the following three aggravators: (1) the victim was engaged in the performance of his official duties as a highway patrol trooper when murdered by Burns; (2) the murder was committed to avoid arrest or to effect an escape from the victim's custody for the crime of cocaine trafficking; and (3) the murder was committed to disrupt the lawful exercise of any governmental function by or the enforcement of laws by the victim relating to cocaine trafficking. ³ In mitigation, the trial judge found two statutory factors: (1) Burns was forty-two years old when he committed the murder; and (2) Burns had no significant history of prior criminal activity. ⁴ The trial judge noted in his sentencing order that these statutory mitigators were entitled to reduced weight in light of Burns' 1976 conviction for gambling and testimony introduced in the instant proceeding which established that Burns delivered crack cocaine to two of his employees several months before the murder. The trial judge also found a number of nonstatutory mitigating factors: (1) Burns was one of seventeen children raised in a poor rural environment and consequently had few economic, educational, or social advantages, but despite these disadvantages, he is intelligent and became continuously employed after high school; (2) Burns contributed to his community and society, he graduated from high school, worked hard to support his family, with whom he had a loving relationship, and was honorably discharged from the military, albeit for excessive demerits after one month and seventeen days of active duty; and (3) Burns has shown some remorse, has a good prison record, behaved appropriately in court, and has demonstrated some spiritual growth. Although the trial judge found this final mitigator, he questioned whether Burns' remorse and spiritual growth were self-serving in light of the fact that Burns was never completely truthful about the details of the crime. Burns continuously maintained that the murder was an accident for which he was sorry. After weighing the aggravating and mitigating factors, the trial judge followed the jury's recommendation and imposed a sentence of death.

On appeal, Burns raises seven issues: (1) death is disproportionate in this case; (2) the denial of the requested jury instruction regarding Burns' right to remain silent; (3) the admission of evidence pertaining to the victim's family, background, and character; (4) the exclusion of evidence regarding the potential impact Burns' execution would have on his family; (5) the denial of the requested jury instructions regarding specific nonstatutory mitigating circumstances and the fact that unanimity is not necessary to find a mitigating factor; (6) the denial of the requested jury instruction indicating that the death sentence is reversed for the most aggravated and least mitigated offenses; and (7) the denial of the requested jury instruction regarding the weight to be afforded the jury's recommended sentence. We find, as we have repeatedly in the past, that issues 5 and 6 are without merit. See, e.g., Ferrell v. State, 653 So.2d 367, 370 (Fla.1995). We address the remaining issues below.

In his first claim, Burns alleges that the death sentence is disproportionate. He recognizes that the number of aggravators and mitigators is not dispositive of this issue but argues that an analysis of his case compared with similar cases suggests that death is disproportionate. He bases his claim primarily on Songer v. State, 544 So.2d 1010 (Fla.1989). ⁵ Songer, like the instant case, involved the slaying of a law enforcement officer. Id. at 1011. Songer walked away from a prison release program in Oklahoma. Id. Several days later, a Florida highway patrolman approached the vehicle in which Songer and a companion were traveling. Id. The vehicle was parked near a highway. Id. Some hunters saw the officer approach the vehicle and witnessed the fatal shooting. ⁶ Id.

On resentencing, the jury recommended that Songer be sentenced to death, and the trial judge followed the recommendation. Id. The trial judge found one aggravator: Songer was under a sentence of imprisonment in Oklahoma when the killing was committed. Id. The judge found three statutory mitigators: (1) Songer was under the influence of extreme mental or emotional disturbance; (2) Songer's ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired; and (3) his age of twenty-three. Id. Additionally, the trial judge found seven nonstatutory mitigating factors: (1) Songer's sincere, heartfelt remorse; (2) his chemical dependency on drugs; (3) his history of adapting well to prison life and using the time for self-improvement; (4) his positive change of character attributes; (5) his emotionally impoverished upbringing; (6) his positive influence on his family; and (7) his developing of strong spiritual and religious standards. Id.

In reviewing Songer's sentence, we concluded that the case might represent the least aggravated and most mitigated case to undergo proportionality review. Id. We found that the almost complete lack of aggravation and the substantial mitigation required reversal. Id. In reaching this conclusion, we noted that the gravity of the single aggravator was limited by the fact that Songer did not break out of prison but merely walked away from a work release program. ⁷ Id. Additionally, we noted that several of the mitigators were particularly compelling. Id. at 1011-12. See also Besaraba v. State, 656 So.2d 441 (Fla.1995) (death disproportionate where there was single aggravator and vast amount of mitigation including significant statutory mitigation); Smalley v. State, 546 So.2d 720 (Fla.1989) (same).

In the instant case, the gravity of the single merged aggravator was not reduced by any particular factual circumstance. On the contrary, we agree with the trial court that this aggravator was entitled to great weight. Nor does the instant case involve any statutory mental mitigators. ⁸ The consideration given statutory mental mitigators, depending on the evidence presented to support them, may be substantial. ⁹ Not only was the instant case devoid of the statutory mental mitigators, but the statutory mitigators that were found were afforded only minimal weight. The trial judge found that the evidence presented regarding a 1976 gambling conviction and testimony indicating Burns had previously sold crack cocaine reduced the weight to be afforded the statutory mitigating factors of no significant prior criminal history and Burns' age of forty-two. Likewise, the trial judge afforded only minimal weight to the nonstatutory mitigators of remorse and spiritual growth. Finally, we note that the instant case is distinguishable from Songer because, unlike Songer, Burns murdered the law enforcement office while Burns was engaged in trafficking cocaine. Based on the foregoing, we conclude that Burns' reliance on Songer is misplaced.

While Songer is distinguishable, the instant case is comparable to Reaves v. State, 639 So.2d 1 (Fla.), cert. denied, 513 U.S. 990, 115 S.Ct. 488, 130 L.Ed.2d 400 (1994). In Reaves, an officer encountered the defendant upon responding to a 911...