Campbell v. State

• Decision Date: 14 June 1990
• Docket Number: No. 72622,72622
• Citation: 571 So.2d 415
• Court: Florida Supreme Court
• Parties: 16 Fla. L. Weekly S1 James CAMPBELL, Appellant, v. STATE of Florida, Appellee.

Page 415

571 So.2d 415

16 Fla. L. Weekly S1

James CAMPBELL, Appellant, v. STATE of Florida, Appellee.

No. 72622.

Supreme Court of Florida.

June 14, 1990.

Rehearing Denied Dec. 13, 1990.

Geoffrey C. Fleck of Friend, Fleck & Gettis, South Miami, for appellant.

Robert A. Butterworth, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., Miami, for appellee.

SHAW, Justice.

James Campbell appeals his convictions of first-degree murder, attempted first-degree murder, burglary, robbery, and displaying a weapon, and his sentences of death and consecutive life terms of imprisonment. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the convictions and sentences, with the exception of the death penalty.

At about 2:15 p.m. on December 22, 1986, Sue Zann Bosler and her father, Billy, returned home from shopping. While in the bathroom, Sue Zann heard the doorbell ring, heard the door open, and then heard her father make grunting and groaning sounds. When she went to investigate, she saw her father being stabbed a number of times by an unknown attacker. She made a noise and the assailant approached her and stabbed her in the back three times as she turned away before being knocked to the floor. The assailant returned to her father, stabbing him in the back many times as he fell to the floor. When Sue Zann tried to help her father, the assailant backed her into another room and stabbed her in the head several times. She fell to the floor, pretending to be dead. The attacker rummaged through the house and searched Billy's pockets and Sue Zann's purse, taking an undetermined amount of money before leaving. Billy died; Sue Zann lived.

Sue Zann gave a description of the attacker and police determined that he probably had a badly cut hand. A week later, while responding to a call at a convenience store, James Campbell was seen by police peering into an unoccupied police car, with his hand on the driver's door. When asked what he was doing, Campbell gave no explanation. A background check indicated that he was wanted on two outstanding juvenile warrants. While handcuffing Campbell, the officer noticed that his hand had been badly cut. At the police station, Campbell was read his rights and questioned concerning the Bosler homicide. He eventually confessed and gave a written statement, saying that he went to the Bosler house with a knife, that he planned to rob the occupants, and that he stabbed and robbed Billy and Sue Zann. Sue Zann identified Campbell's photograph from a photo lineup.

Campbell was charged with first-degree murder, attempted first-degree murder, burglary with a dangerous weapon, robbery with a deadly weapon, battery on a policeman, and displaying a weapon during a felony. His motions to suppress his confessions, out-of-court and in-court identifications, and physical evidence were denied. At trial, police experts testified that his fingerprints and blood samples matched those found at the scene. Sue Zann testified as to the events of the day and identified Campbell as her assailant. He was found guilty on all charges except battery on a policeman. The jury voted nine to three in favor of the death penalty. The judge followed the jury recommendation and imposed the death penalty based on a finding of five aggravating factors (prior conviction of a felony involving force; committed during burglary and robbery; committed for pecuniary gain; committed in a particularly heinous, atrocious, or cruel manner; committed in a cold, calculated, and premeditated manner) and one nonstatutory mitigating factor (requests by Sue Zann and members of Billy's parish that his life be spared).

Campbell argues that the confessions, identifications, and physical evidence should have been suppressed for three reasons: The police had no grounds to stop him; they had no grounds to take him into custody; and because of his low intelligence, he could not have intelligently waived his rights. We disagree. Officers, responding to a call concerning a man with a gun behind a convenience store, spotted Campbell apparently trying to break into a police car behind the store. They thus had grounds to stop him. A name check revealed two outstanding juvenile warrants. Campbell argues that under sections 39.02(4) and .40(2), Florida Statutes (1985), the juvenile court loses jurisdiction when a child reaches eighteen (in dependency cases) and nineteen (in delinquency cases), that Campbell was twenty when arrested here, and thus the pickup orders that had been issued three years earlier were void and the arrest unlawful. The orders, however, were valid when issued and remained valid until successfully challenged or revoked by the court. The police had no choice but to pick up Campbell; they were required by court order to do so. As to Campbell's waiver of his rights, mental weakness is but one factor to be weighed in determining voluntariness. Kight v. State, 512 So.2d 922 (Fla.1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1100, 99 L.Ed.2d 262 (1988) (waiver lawful where defendant had I.Q. of 69). The record shows Campbell was aware of his rights and the consequences of waiver.

After instructing the jury on first-degree premeditated murder, the court charged the jury on first-degree felony murder. It then repeated the felony murder instruction. Later, the court instructed on attempted murder which it also repeated. It did the same for the terms "dangerous weapon" and "reasonable doubt." Campbell claims that this repetition and additional statements by the court gave the impression that the court believed Campbell was guilty. We disagree. The repeated instructions were made in response to juror puzzlement ("I see puzzled looks on your faces.") and correctly stated the law without unduly emphasizing a particular aspect of the proceeding. There was no error. Campbell asserts that the court should not have allowed the serology expert to testify on knife slippage. The forensic serologist testified that when a knife with a bloody handle hits a bone, the grip may slip and the holder may cut his hand. The expert was testifying within his field on the fluid nature of blood; he was also testifying on a subject upon which he possessed a working knowledge--the effect of blood on a weapon. See Johnson v. State, 497 So.2d 863 (Fla.1986) (although never qualified as an expert, police officer had working knowledge of blood detection testing). Campbell's claim that the deceased was never properly identified because a witness said he was "Bowman" was not preserved for review on appeal.

Campbell claims that the court erred in its findings relative to aggravating and mitigating circumstances. The court correctly found that Campbell was previously convicted of a felony involving the use or threat of violence. He cites no authority in support of his assertion that prior juvenile convictions cannot be considered in aggravation. Commission of a capital felony in the course of an armed robbery and burglary, and for pecuniary gain should have been counted as one, not two, factors, where the offense underlying the burglary was robbery. See Maggard v. State, 399 So.2d 973 (Fla.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981); Riley v. State, 366 So.2d 19 (Fla.1978). The finding that the killing was particularly heinous, atrocious, or cruel was proper. Billy was stabbed twenty-three times over the course of several minutes and had defensive wounds. See Hansborough v. State, 509 So.2d 1081 (Fla.1987) (thirty stab wounds, including defensive wounds, is sufficient to establish that the killing was particularly heinous, atrocious, or cruel).

We disagree with the court's finding that the stabbing was committed in a cold, calculated, and premeditated manner. The state argues that because Campbell stabbed Billy, then stopped when he attacked Sue Zann, and then returned to stabbing Billy, he had time to reflect upon and plan his resumed attack on Billy. See Swafford v. State, 533 So.2d 270 (Fla.1988), cert. denied, 489 U.S. 1100, 109 S.Ct. 1578, 103 L.Ed.2d 944 (1989) (cold, calculated, and premeditated aggravating circumstance present where defendant shot victim, reloaded, then resumed shooting). This factor generally is reserved for cases showing "a careful plan or prearranged design." Rogers v. State, 511 So.2d 526, 533 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988). Campbell's actions took place over one continuous period of physical attack. His assault on Sue Zann provided him with no respite during which he could reflect upon or plan his resumption of attack on Billy, unlike the situation in Swafford wherein the act of reloading the gun provided a break in the attack.

As to mitigating factors, the trial judge concluded that Campbell did not suffer from impaired capacity under section 921.141(6)(f), Florida Statutes (1985), because no evidence indicated that he was "insane" at the time of...