Cannady v. State, 76262
| Decision Date | 06 May 1993 |
| Docket Number | No. 76262,76262 |
| Citation | 620 So.2d 165 |
| Parties | 18 Fla. L. Weekly S277 Douglas CANNADY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Nancy A. Daniels, Public Defender and David A. Davis, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen. and Mark C. Menser, Asst. Atty. Gen., Tallahassee, for appellee.
Douglas Cannady appeals his convictions of two counts of first-degree murder and one count of attempted murder and the corresponding sentences, including two sentences of death. We have jurisdiction pursuant to article V, section 3(b)(1), of the Florida Constitution. We affirm all of Cannady's convictions and his sentence for attempted murder, but we reduce his death sentences to life imprisonment without parole for twenty-five years.
This tragic incident occurred on October 1, 1989, when Cannady murdered Georgia Cannady, his wife, and Gerald Boisvert, who he believed raped his wife, and attempted to murder Steve Russ, who previously was involved in a dispute with Cannady. Cannady was charged with two counts of first-degree murder and one count of attempted murder. The evidence at trial established that Cannady was married to Georgia Cannady and that together they had two children, Christopher, fifteen, and Angela, eighteen. The Cannadys lived in a double-wide mobile home behind a gasoline station, which Cannady ran, in Greenwood, Florida. Cannady also owned a bar. In the spring of 1989, Steve Russ got into a fight in front of Cannady's bar. Cannady broke up the fight by firing his gun. Russ was placed on community control for the incident and filed a complaint against Cannady for shooting the gun at him. Russ later dropped the complaint.
On Sunday, July 23, 1989, Cannady and his family went over to a friend's house for dinner. At some point during the evening, Cannady passed out. At about 9 p.m., Cannady came to and asked for his wife, but no one knew where she was. Cannady, too drunk to drive, had his daughter pick him up and take him to various places to look for his wife. When he could not find her, Cannady called the sheriff's office and reported her missing. The next morning, Gerald Boisvert told him he had let Georgia Cannady out of his car at a truck stop. About noon, someone brought Georgia home and she told Cannady the same story Boisvert had given him. She added that, after Boisvert had left her, she left the truck stop with another woman.
Over the next few days, Cannady noticed several scratches on Georgia's shoulders and that she did not want to have sexual intercourse with him because she was "hurting." Cannady suspected that Boisvert had raped his wife and he took her to the sheriff's office to file a complaint. During the interview at the police station, Cannady dominated the conversation, and the officer had to ask Cannady to leave the room. After some time alone with the officer, Georgia Cannady emerged from his office without pressing charges against Gerald Boisvert. During the next two months, Georgia was despondent and on several occasions expressed that she wished that she were dead. Cannady continued to suspect that Boisvert and other men had raped his wife and at one point lured Boisvert into his house and beat him.
Cannady testified that on the day of the murders he had drunk at least fourteen beers. He stated that on that day he and his wife were in the living room and that she was depressed over what he believed was the rape by Gerald Boisvert. Cannady stated that he got his .38 caliber pistol from a hiding place in the trailer and began to clean it. Cannady testified that his wife asked that he sit next to her on the living room couch and, as he started to get up with the gun in his hand, he tripped or his ankle gave out from under him and the gun fired. The bullet hit his wife in the chest, killing her.
The defendant's son, Christopher, testified that on that day he was watching a football game on television and heard a commotion in another part of the mobile home. He stated that his parents were fussing loudly and that, as he passed his parents on his way to the bathroom, his mother was sitting on the couch and his father was seated at the dining room table, doing something with his gun. While he was in the bathroom, Chris heard a gunshot and came out to find his mother lying on the floor. Christopher testified that at that point Cannady told him, "I had to do it," and that she was "gone" and "she's not suffering."
Cannady then told Christopher to get into the truck and they drove to Boisvert's house. On the way, Cannady told Christopher that he was going to kill Boisvert as he loaded his gun. When they arrived, Boisvert was standing in his front yard with another man and his two children. Cannady asked Boisvert for a beer to lure him to his truck. When Boisvert approached the truck, Cannady shot him in the head several times. Cannady then reloaded his gun, got out of his truck, and shot Boisvert again. In all, Cannady shot Boisvert seven times.
As Cannady drove away, he asked Christopher to reload his gun. Christopher refused. Cannady then drove to where Steve Russ lived. During the trip, Cannady told Christopher that he was going to kill Russ because of the problems he had caused at his bar. When Cannady got to Russ's house, he asked Russ for a beer but Russ did not have any. Cannady then shot at but missed Russ, who was standing in his front doorway. Russ fled through the house and Cannady ran after him and shot again, missing him. Russ was able to escape. As Cannady and Christopher returned home, Cannady placed the gun and bullets under the truck seat. Before doing so, he told Christopher that he knew he was going to prison. A police car followed Cannady home, where he was arrested.
The jury found Cannady guilty of the first-degree murder of his wife and Boisvert and the attempted murder of Russ. In the penalty phase, Cannady testified on his own behalf and asked the jury to impose the death penalty.
During the penalty phase, a mental health expert, who had initially examined Cannady at the public defender's request, was called as a court witness. The expert testified that Cannady had advanced cerebral atrophy, in a more advanced state than would be expected in an individual his age. The expert also stated that the electroencephalogram test of Cannady's brain waves was normal and that there was no indication of a seizure disorder. He stated that Cannady was suffering from a major depression with suicidal tendencies. He also noted in his testimony that Cannady had a severe alcohol dependency problem, but that, in his opinion, he was sane under the M'Naghten test. 1 He explained Cannady's conduct by stating that Cannady believed that he would be unable to get any justice with regard to his wife. He stated that Cannady's mental condition led him to four suicide attempts, two of which were very serious. He believed that Cannady truly intended to kill himself. Other evidence was presented regarding Cannady's alcoholism.
At the conclusion of the penalty phase, the jury recommended the death sentence by a ten-to-two vote. In imposing the death sentence for each of these murders, the trial judge found that each murder was (1) heinous, atrocious, or cruel, pursuant to section 921.141(5)(h), Florida Statutes (1989), and (2) committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification, pursuant to section 921.141(5)(i), Florida Statutes (1989). In addressing the mitigating circumstances, the trial judge found: (1) that the evidence presented made a prima facie showing that Cannady was under the influence of mental or emotional disturbance but "not to any great extreme"; (2) that, although Cannady was under mental stress, he was under no physical duress and was not under the domination of any other person; (3) that, although Cannady was an alcoholic, his ability to conform his conduct to the requirements of law was not substantially impaired; and, (4) as a nonstatutory mitigating circumstance, that Cannady was an alcoholic and that his alcoholism had in fact caused brain atrophy.
In this appeal, Cannady claims that the trial court erred in: (1) excusing for cause several prospective jurors because of their views on the death penalty; (2) excluding Angela Cannady's testimony that her mother had told her that Boisvert had raped her; (3) failing to give a complete instruction on the meaning of "duress" when the jury asked for the definition of that word; (4) finding that both murders were committed in an especially heinous, atrocious, or cruel manner; (5) finding that both murders were committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification; and (6) sentencing Cannady to death because such sentence is not proportionately warranted under the facts of this case.
Regarding his first claim, Cannady alleges that the trial court erred in excusing for cause four prospective jurors because of their views on the death penalty. The prospective jurors said during voir dire examination concerning the death penalty that they did "not believe in it" and, in the follow-up questions, that they did not think they could vote for it in a case. Defense counsel made a general objection to the excusal of these proposed jurors but did not object to the excusal of these jurors individually. Cannady now argues that the jurors should not have been excused without further inquiry as to whether they could set aside their views and follow the law and their oaths as jurors. The State, on the other hand, argues that the objection made by defense counsel was a general objection based on the philosophy that no anti-death penalty jurors should be excused. We note that defense counsel agreed that one or two were excludable anyway. We find under the circumstances of this case that...
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