Buzia v. State
| Decision Date | 23 March 2006 |
| Docket Number | No. SC04-582.,SC04-582. |
| Citation | 926 So.2d 1203 |
| Parties | John M. BUZIA, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
James S. Purdy, Public Defender and George D.E. Burden, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Barbara C. Davis, Assistant Attorney General, Daytona Beach, FL, for Appellee.
We review appellant John M. Buzia's appeal of a circuit court judgment sentencing him to death. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. As we explain below, we affirm.
Buzia was indicted on charges of the first-degree murder of Charles Kersch, attempted first-degree murder of Thea Kersch, armed burglary of a dwelling with an assault or battery, and robbery with a deadly weapon. Trial was held in March 2003.
The Kersches, both 71 years old and retired, lived in a gated community. In the past, Buzia had performed odd jobs around their residence and rental properties. On the morning of March 14, 2000, Charles Kersch and his wife Thea expected Buzia at their residence for work, but he did not appear. In a videotaped interview with the police, Buzia stated that he had a "money issue" with the Kersches and, on that day, decided to steal money from them.
Buzia arrived at the residence at about 2:30 p.m. He waited twenty minutes for someone to arrive. Mrs. Kersch arrived home between 4 and 4:30 p.m. Buzia told her that his brother had been beaten up and that he needed to talk to her husband. She allowed him to wait in the enclosed patio area until Mr. Kersch returned.
On the patio, Buzia retrieved a serving tray he found and approached the sliding glass door that led into the kitchen. Mrs. Kersch opened the door, and he handed it to her. Once she placed the tray on a table inside, Buzia entered. They briefly conversed. Mrs. Kersch said nothing to upset him. Yet, without warning, Buzia struck her several times with his fist. Blood sprayed from her nose. Buzia admitted that he was trying to make her unconscious so that he could take her money. He knocked her down and kicked her. She lost consciousness. He took her keys and removed about $80 from her purse. He dragged her into the back bedroom and covered her with a blanket. Then he searched the house and removed a Mastercard from her purse.
Buzia then heard the garage door open and assumed that Mr. Kersch had arrived home. He considered at this point whether he should tell Mr. Kersch that he had attacked his wife, or whether he should assault him, too, and leave. As soon as Mr. Kersch entered the house through the garage entrance, Buzia hit him with his fist, causing him to fall on the floor and hit his head on the tile. Mr. Kersch was breathing, but bleeding severely. Buzia told the police, "I was ... thinking ... you know ... he's gonna die, if [I] leave right now." Mr. Kersch attempted to rise to his feet, getting up on his hands and knees. Buzia stated that his "intention was ... obviously to keep him down longer, so maybe [he] could drive away and get more time." He was "committed" at this point. He struck him again with his fist, and Mr. Kersch again fell to the floor. He removed about $100 from Mr. Kersch's wallet.
Buzia obtained one of the two axes from the garage. He thought about "using it to make `em unconscious" but then "threw it on the ... puddle of mess." He claims he never hit Mr. Kersch with that ax. However, after hearing moaning and groaning from Mrs. Kersch in the back bedroom, he went to the garage a second time and returned with another ax. It is unclear which ax he used on the Kersches—the first one or the second one. It seems that he used the second one and hit Mr. Kersch once in the head with the flat side of it. He stated that his intention in hitting Mr. Kersch with the ax was to "slow him" and "put him out." In the back bedroom, Mrs. Kersch was awake and attempting to get up, but he also hit her once with the same flat side of the ax. She lost consciousness again.
He covered Mr. Kersch with a blanket, and he duct-taped the door handle in the back bedroom where Mrs. Kersch lay unconscious. After looking in closets and other things, he tried to clean up the residence a little bit, but he admitted that it was "overwhelming." Buzia then took Mr. Kersch's car keys and one of his T-shirts. He changed his shirt because it was "nasty" and "dirty." The Kersches were both moving, moaning, and groaning when he left. He drove away in Mr. Kersch's car. Shortly thereafter, the paramedics arrived. Mrs. Kersch survived, but Mr. Kersch died of blunt force injuries to the head.
The following morning, the police arrested Buzia at a bank after he attempted to cash a check for $830 drawn from Mr. Kersch's account. Buzia appeared to understand the officers' commands, did not have any trouble walking, and did not resist the officers' efforts to search him.
Investigators found Mr. Kersch's body lying near the garage door and covered with a blanket. They also found a single-headed ax on the chair at the dinette table inside the house and a double-headed ax behind the couch. The medical examiner also testified regarding the various injuries Mr. Kersch suffered and the causes of those injuries.
The jury found Buzia guilty of the first-degree premeditated murder of Mr. Kersch, the attempted first-degree murder of Mrs. Kersch, armed burglary of a dwelling with an assault or battery, and robbery with a deadly weapon.
At the penalty phase, Buzia presented several lay witnesses, as well as a psychologist, who testified about his problems with drugs and alcohol, including his cocaine dependence. The State rebutted this evidence with its own expert, who stated that Buzia's actions suggested goal-directed and purposeful behavior. The jury, by a vote of eight to four, recommended the death penalty.
After the Spencer1 hearing, the trial court issued its sentencing order, in which it found that the evidence supported the following six aggravating circumstances: (1) that Buzia was previously convicted of another capital offense or of a felony involving the use of violence to some person; (2) that the murder was committed while he was engaged in the commission of or flight after committing or attempting to commit the crime of kidnapping; (3) that the murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody; (4) that the murder was committed for financial gain; (5) that the murder was especially heinous, atrocious, or cruel ("HAC"); and (6) that the murder was committed in a cold, calculated, and premeditated manner, and without any pretense of moral or legal justification ("CCP"). However, the court assigned great weight to only four aggravators—prior violent felony, avoid-arrest, HAC, and CCP. The court did not consider the other two—during the course of a robbery/burglary/kidnapping and pecuniary gain.
After reviewing the record for mitigation, the court assigned little weight to two factors under the statutory catchall provision, section 921.141(6)(h), Florida Statutes (2003), specifically Buzia's interaction with the community and his work record. The court also found seven nonstatutory mitigating factors and ascribed weight as follows: (1) influence of a mental or emotional disturbance, not extreme in nature (substantial weight); (2) Buzia's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired, but not substantially (substantial weight); (3) gainful employment (little weight); (4) appropriate courtroom behavior during the guilt and penalty phases of the trial and during the Spencer hearing (little weight); (5) cooperation with law enforcement (little weight); (6) difficult childhood (little weight); and (7) remorse (little weight). The trial court concluded that the aggravating circumstances outweighed the mitigation and sentenced Buzia to death. In addition, the court sentenced Buzia to three concurrent life sentences for the attempted first-degree murder, armed burglary, and armed robbery convictions.
Buzia raises six issues on appeal, which we address in turn below: (A) the trial court erred in finding the prior violent felony aggravating circumstance; (B) the trial court erred in finding the avoid-arrest aggravating circumstance; (C) the trial court erred in finding the HAC aggravating circumstance; (D) the trial court erred in finding the CCP aggravating circumstance; (E) the death penalty is not warranted in this case; and (F) Florida's capital sentencing procedures violate Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We also independently determine that the evidence was sufficient to convict Buzia of first-degree murder.2
In his first claim, Buzia challenges the trial court's finding of the prior violent felony aggravator. He argues that his contemporaneous guilty verdict for the attempted murder of Mrs. Kersch was not a "conviction" under section 921.141(5)(b), Florida Statutes (2003). However, Buzia failed to preserve this issue for appeal. See Harrell v. State, 894 So.2d 935, 940 (Fla.2005) (). Although he filed pretrial motions contesting the application of this aggravator, those objections were not contemporaneous with the penalty phase. In his sentence memorandum Buzia objected to the other aggravators, but he did not raise any arguments regarding the prior violent felony aggravator. Accordingly, this issue was not preserved.
This claim lacks merit anyway. Section 921.0011(2), Florida Statutes (2001), defines "conviction" as a "determination of guilt that is the result of a plea or a trial, ...
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