Capehart v. State, 74231
| Decision Date | 13 June 1991 |
| Docket Number | No. 74231,74231 |
| Citation | 583 So.2d 1009 |
| Parties | Gregory CAPEHART, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant. 583 So.2d 1009, 16 Fla. L. Week. S447 |
| Court | Florida Supreme Court |
James Marion Moorman, Public Defender and Robert F. Moeller, Asst. Public Defender, Bartow, for appellant/cross-appellee.
Robert A. Butterworth, Atty. Gen., and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee/cross-appellant.
Gregory Capehart appeals from his convictions for burglary and first-degree murder and the resulting sentences, including his sentence of death. 1 We affirm the convictions and sentence of death but vacate the sentence for burglary and remand with instructions.
According to the evidence, on the morning of February 4, 1988, Deputy Sheriff Jeffrey Clark was conducting a neighborhood check following the report of a break-in at Rebecca Henry's apartment in Dade City. Henry had been awakened around five in the morning by a black man, approximately five feet nine inches tall and one hundred sixty pounds, mashing a cushion down tightly on her face and demanding money. When she passed out, he left.
In connection with the investigation, Clark went next door to the residence of sixty-two-year-old Marlene Reeves and found the house ransacked and Reeves dead in her bed. Her face was covered with a pillow, and her underwear was pulled halfway down the legs; she was also wearing a nightgown and a brassiere that had been pushed up over her breasts.
A partial palm print was lifted from Reeves' window screen and was later matched to Capehart's right palm print. An autopsy revealed that Reeves had suffered injuries to her sexual organs, caused by a sexual assault that occurred just prior to her death. The cause of death was asphyxiation due to smothering. Under constant pressure, Reeves would have been unconscious after one or two minutes, and death occurred after five to ten minutes. Medical evidence indicated that Reeves died between 11:41 p.m. and 4:41 a.m.
Reeves' neighbor, Robert Caruthers, testified that he had seen a person wearing an orangish-yellow trench coat and a light brown fedora walk by his windows in the direction of Reeves' apartment between 4:40 and 6:00 a.m. Another witness, Diane Harrison, testified that around daybreak on the day of the murder, she had seen Capehart exiting the area where Reeves lived. He was wearing a long black trench coat and a hat.
An acquaintance of Capehart's, Carol McPhail, testified that she saw Capehart a few days after the murder and in response to asking why he did "that to that woman," Capehart replied, " 'Well, they ain't going to catch me.' "
Capehart's longtime friend, Walter Harrison, testified that he was with Capehart on the day after Marlene Reeves' body was found and that they discussed the murder. Harrison had heard that the police were looking for a man with a black trench coat, and he had earlier loaned Capehart his black trench coat. Harrison asked Capehart if he had committed the murder, and Capehart "said he did it but he didn't mean to do it." Capehart had explained that he broke into the house through a window to get money "without hurting the lady, but she woke up." Capehart said he tried to knock her out with a pillow over her face, but he "accidentally killed her." Harrison then asked Capehart about it again, and this time Capehart denied committing the murder, claiming that he had been kidding Harrison.
The arresting officer, David McKinnon, testified that upon arrest Capehart told him that he was with some "dudes" who were "going to rob this old lady." Capehart claimed he was on the porch, and when the others did not come out for a while, he went inside and "saw the one dude sitting on top of the lady, strangling her." Capehart also said the police caught him because he must have left his fingerprints on the bedroom door.
Later, Capehart was transported to the Pasco County jail by another officer, Tom Muck. Muck testified that when he saw Capehart in the jail's yard several months later, Capehart called him over and told him: " 'You know, I just wanted that girl's pussy.' "
In the penalty phase, the state introduced a judgment and sentence of Capehart's convictions for robbery, grand theft, and aggravated assault in 1986, and a photograph of Marlene Reeves as she was found. The defense presented the testimony of Capehart's mother, Shirley Capehart, and Dr. Joel Epstein, a clinical psychologist. Epstein testified that Capehart told him that his father was a severe alcoholic who beat him, that he had always had difficulties in school, and that he been in at least three fights where he had been rendered unconscious. Capehart also reported a long history of abusing alcohol and marijuana. Epstein found that Capehart was illiterate, although not retarded, and his "memory intellect" was borderline. He concluded that Capehart was not psychotic, but his hold on reality was marginal.
Dr. Sidney Merin, a clinical psychologist and neuropsychologist, was called by the state as its first rebuttal witness. Merin's opinion was that at the time of the murder, Capehart was not under the influence of a mental or emotional disturbance, nor did he have an impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. He found that Capehart merely had an antisocial personality. The second rebuttal witness called by the state was Dr. Daniel Sprehe, a physician specializing in psychiatry. He likewise testified that at the time of the offense Capehart was not under the influence of a mental or emotional disturbance of any kind, and his capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of law was not impaired in any way.
The jury recommended death by a vote of seven to five. The judge sentenced Capehart to fifteen years' imprisonment on the burglary charge and imposed the death penalty for the murder. The judge found as aggravating circumstances that (1) defendant was previously convicted of a felony involving the use or threat of violence to a person; 2 (2) defendant was engaged in a sexual battery or burglary when he committed this murder; 3 (3) defendant's commission of this murder was especially heinous, atrocious, or cruel; 4 and (4) defendant's commission of this murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. 5 The judge found "[t]he only possible mitigating circumstance is a social explanation, i.e., Defendant is a poor black man exploding in anger over his frustration due to the ills of a discriminatory society heaped upon him."
Capehart initially contends that there was insufficient circumstantial evidence to establish that he was the person who killed Marlene Reeves. We find that the jury's verdict is supported by substantial, competent evidence of Capehart's guilt. Several witnesses placed him in the murder scene at the time of the murder. Capehart's palm print was wrapped around the window screen to Reeves' apartment in such a manner as to indicate that he had not merely touched the outside of the screen but had cupped his hand around the frame. Finally, in addition to the direct and incriminating statements to Carol McPhail, Tom Muck, and Officer McKinnon, Capehart confessed to Walter Harrison. We find the evidence sufficient for the jury to have reasonably rejected the defendant's hypothesis that a third person committed the offenses. See, e.g., State v. Law, 559 So.2d 187 (Fla.1989).
Capehart next argues that the trial court erred in permitting Dr. Joan Wood, Chief Medical Examiner for the Sixth Judicial Circuit, to testify regarding the cause of death and the condition of the victim's body because she did not perform the autopsy, nor was the autopsy report admitted into evidence. 6 Capehart argues that under those circumstances, the state failed to lay a proper foundation for her testimony.
Section 90.704, Florida Statutes (1987), provides that an expert may rely on facts or data not in evidence in forming an opinion if those facts are of "a type reasonably relied upon by experts in the subject to support the opinion expressed." The record reveals that the state properly qualified Dr. Wood as an expert without objection and that she formed her opinion based upon the autopsy report, the toxicology report, the evidence receipts, the photographs of the body, and all other paperwork filed in the case. We are satisfied that a proper predicate for her testimony was established and that the trial court did not abuse its discretion in overruling the defense objection. See, e.g., Sikes v. Seaboard Coast Line R.R. Co., 429 So.2d 1216 (Fla. 1st DCA), review denied, 440 So.2d 353 (Fla.1983).
We find no merit to Capehart's argument that the trial court erred in permitting the state's fingerprint expert to testify that the Florida Department of Law Enforcement confirmed his conclusions because the record shows that defense counsel "opened the door" during cross-examination. We likewise find no merit in Capehart's claim that the trial court unduly restricted Capehart's cross-examination of Diane Harrison. In addition, Capehart's claim that the verdict form was improper was not preserved for appellate review by appropriate objection during trial.
Capehart's next claim is that the trial court erred in permitting Officer Muck to testify that there was no evidence to support Capehart's statements claiming that someone else killed Marlene Reeves and that Capehart was a liar. At trial, the defense objected when the state asked Muck the following:
Q. And are you familiar with the statements McKinnon says Mr. Capehart made to McKinnon at the time he was arrested in Orlando?
A. I like to think I am. Yes, sir.
Q. Based upon your investigation, your review of the investigation and your knowledge of this...
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