O'Callaghan v. State

• Decision Date: 10 February 1983
• Docket Number: No. 60704,60704
• Citation: 429 So.2d 691
• Parties: John O'CALLAGHAN, a/k/a Jack McCarthy, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 691

429 So.2d 691

John O'CALLAGHAN, a/k/a Jack McCarthy, Appellant, v. STATE of Florida, Appellee.

No. 60704.

Supreme Court of Florida.

Feb. 10, 1983.

Rehearing Denied April 27, 1983.

William B. Seidel of the Law Office of William B. Seidel, Fort Lauderdale, for appellant.

Jim Smith, Atty. Gen., and Stewart J. Bellus and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Appellant, John O'Callaghan, was convicted of murder in the first degree in a joint trial with Walter Tucker, his codefendant, who was found guilty of second-degree murder. The trial judge imposed the death sentence upon appellant in accordance with the jury's advisory sentence recommendation. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the conviction and the imposition of the death sentence.

The following are the necessary facts for a determination of the issues in this cause. In November, 1980, appellant, John O'Callaghan, and his codefendant, Walter Tucker, were charged in a single indictment with the premeditated shooting death of Gerald Vick. This crime culminated a series of events that began in the summer of 1980 with a poker game in which James Long lost several thousand dollars to codefendant Tucker. Long was part-owner, along with his stepson, Alan Wheatley, of the Finish Line Bar. Long apparently hired the victim, Gerald Vick, to act as his bodyguard furnishing Vick with a car and an open tab at the Finish Line Bar. During the week prior to August 20, 1980, the date Vick was killed, someone shot the windows out of Tucker's house. Tucker came to believe that his windows were broken by Vick acting on Long's behalf. Tucker told appellant O'Callaghan, whom Tucker knew casually and who worked at the Finish Line Bar, that he (Tucker) wanted to find Vick and talk to him about the incident. On the afternoon of August 20, O'Callaghan asked Wheatley to take him, Tucker, Cyndi LaPointe (Tucker's girlfriend), and another man to Vick's home. Of the group, only Wheatley knew at the time where Vick lived. After Wheatley drove the group to Vick's trailer, O'Callaghan went to the door, leaving a note when there was no response to his knock; they all then returned to the bar. According to Wheatley's testimony, O'Callaghan was armed during this episode.

At seven o'clock that evening, Wheatley and O'Callaghan were at the Finish Line Bar, together with Mark Peptitas, an employee of the bar, Leslie, the barmaid, and a customer whose identity was not known. Vick came into the bar and spoke with O'Callaghan briefly. O'Callaghan left the Finish Line. As he left, he met a young woman named Terry Barber. O'Callaghan asked Ms. Barber to go to his apartment and to tell Anthony Cox, a casual acquaintance of O'Callaghan who was temporarily living in his apartment, to come to the Finish Line Bar.

O'Callaghan continued across the street to the bar owned by Cyndi LaPointe, where he found Tucker and Ms. LaPointe. O'Callaghan told Tucker that Vick was at the Finish Line. Tucker, O'Callaghan, and Ms. LaPointe went back across the street and met Cox outside the Finish Line. O'Callaghan told Cox to go inside and get a gun from Peptitas. When Peptitas refused to give Cox the gun, O'Callaghan went in, got the gun, returned outside, and gave the gun to Cox. O'Callaghan told Tucker and Ms. LaPointe to wait a few minutes, then to follow him into the bar.

O'Callaghan and Cox went into the Finish Line and joined Vick at a booth in the rear of the bar. According to the testimony of both Peptitas and Cox, O'Callaghan held a gun on Vick and told Cox to take Vick's gun. Cox did so. Tucker and LaPointe entered the bar. Peptitas and O'Callaghan testified that Tucker went to the booth and held a gun at Vick's head, threatening to blow his brains out, whereupon O'Callaghan told Tucker to calm down. Tucker and Cox both disputed this testimony, stating that, when Tucker entered the bar, O'Callaghan, Cox, and Vick were moving towards the kitchen in the rear of the bar, and that Tucker joined them in the kitchen. In any event, the four men went into the bar's kitchen.

The testimony varies regarding the events which took place in the kitchen. Cox stated that Tucker held a gun in his hand, shouted at Vick about breaking his windows, and hit and kicked Vick several times. O'Callaghan also testified that Tucker hit Vick repeatedly, but Tucker claims to have hit Vick only once, knocking him down, and to have kicked him once as he tried to stand up. Both Tucker and O'Callaghan agreed that Cox "jumped up and down" on Vick, viciously, numerous times. All three men confirmed that Vick lay motionless on the floor of the kitchen after the beating.

O'Callaghan obtained the keys to a white van, used for errands by the bar's employees, from Wheatley. LaPointe was summoned to the kitchen by Tucker, where she saw Vick lying on the floor. The van was drawn up to the back door of the kitchen. O'Callaghan and Cox carried Vick to the van. O'Callaghan, Cox, Tucker, and LaPointe got into the van; O'Callaghan drove for about thirty minutes to an isolated area. Cox was in the back of the van, while Tucker and LaPointe sat up front in the passenger seat. Cox stated that Vick was motionless during the entire trip and showed no signs of life. LaPointe, however, asserted that, when she glanced back at Vick, she thought she saw signs of breathing and leg movement. On the way, they apparently stopped and bought roses.

When the group reached the end of a dirt road, O'Callaghan and Cox threw Vick out of the van. He landed on his face on the ground. Everyone agreed that Vick was then shot: Tucker, Cox, and LaPointe testified that they either saw O'Callaghan shoot Vick in the head or saw him with a gun in his hand immediately after hearing two shots. They further stated that O'Callaghan gave the gun to Tucker and told him to shoot Vick, but that Tucker never fired a shot because the gun jammed. Tucker testified that he was afraid of O'Callaghan and intentionally caused the gun to jam because he did not want to shoot Vick.

O'Callaghan testified in his own behalf, refuting the statements of his codefendant, Tucker. He testified that Tucker fired the first two shots and handed the gun to Cox, who shot Vick once. O'Callaghan asserted that Tucker then directed him to shoot Vick, that he could not because the gun was out of ammunition, but that he would have shot Vick because he was afraid of Tucker and Cox.

Tucker, Cox, and LaPointe all agree that O'Callaghan and Cox dragged Vick's body into the bushes and that O'Callaghan placed two roses on the body. The group returned to the Finish Line Bar and, on the trip back, O'Callaghan threw the gun used to shoot Vick into a canal. Later that night, O'Callaghan and Wheatley arranged for Vick's car to be removed from the vicinity of the bar.

The body of the victim was not discovered until almost a month later, on September 15, at which time it was severely decomposed. The assistant medical examiner, testifying for the state, stated that within reasonable medical certainty Vick's death was caused by two gunshot wounds, one having entered the back of the head and exited the front, and the second having entered the back with the bullet lodging in the chest cavity. The medical examiner, during cross-examination, said that the physical beating, in his opinion, was not the cause of death although it was a remote possibility. A pathologist for the defendant testified that, after review of the autopsy report, the depositions, and the photographs of the victim, in his opinion, it could not be determined with certainty that the shooting was the cause of death.

Prior to the trial, the accomplice, Cox, was granted immunity; this fact was made known to the jury. The jury returned verdicts of second-degree murder against codefendant Tucker and of first-degree premeditated murder against appellant O'Callaghan. After the sentencing hearing, the jury recommended the imposition of the death sentence for O'Callaghan. The trial judge imposed the death sentence, finding as aggravating circumstances that: (1) appellant O'Callaghan had been previously convicted of a felony involving the use of violence to a person; (2) appellant O'Callaghan was engaged in a kidnapping at the time of the crime for which he was being sentenced; (3) the crime for which appellant was sentenced was especially heinous, atrocious, or cruel; and (4) the capital felony was a homicide and was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification. The trial judge found that no mitigating circumstances existed to outweigh the aggravating circumstances.

Trial Phase

Appellant contends that his conviction should be set aside because: (1) the trial judge abused his discretion in denying appellant's motion to sever his trial from that of codefendant Tucker; (2) the indictment was insufficient either to apprise him of specific nature and details of the crime he was charged with having committed or to serve as a basis for the trial judge's instructions to the jury on felony murder; and (3) the trial judge abused his discretion by allowing the prosecutor, both during the trial and in final argument, to make certain remarks which were prejudicial to appellant. For the following reasons, we find none of these alleged errors requires a reversal of the conviction.

Regarding his first point, appellant asserts that the trial court was required to sever his trial from that of his codefendant Tucker, under our decisions in Crum v. State, 398 So.2d 810 (Fla.1981), and Menendez v. State, 368 So.2d 1278 (Fla.1979). He contends that his defense and Tucker's defense were antagonistic so that his right to receive a fair trial was prejudiced because Tucker testified and placed the major blame for the murder on appellant. O'Callaghan further argues that he had no desire to testify and did not decide to testify until he heard...