Cave v. State, 90165.

• Decision Date: 24 December 1998
• Docket Number: No. 90165.,90165.
• Citation: 727 So.2d 227
• Parties: Alphonso CAVE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

727 So.2d 227

Alphonso CAVE, Appellant, v. STATE of Florida, Appellee.

No. 90165.

Supreme Court of Florida.

December 24, 1998.

Rehearing Denied March 2, 1999.

Jeffrey H. Garland of Kirschner & Garland, P.A., Fort Pierce, for Appellant.

Robert A. Butterworth, Attorney General, and David M. Schultz, Assistant Attorney General, West Palm Beach, for Appellee.

PER CURIAM.

We have on appeal the sentence of the trial court imposing the death penalty on Alphonso Cave. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm.

The facts are set out fully in our opinion on direct appeal. See Cave v. State, 476 So.2d 180 (Fla.1985). In April 1982, Alphonso Cave and three friends—John Bush, J.B. ("Pig") Parker, and Terry ("Bo Gator") Johnson —robbed a convenience store and kidnapped the clerk, Frances Slater. The men drove Slater to a remote location where they stabbed her and shot her once in the back of the head, execution-style. Cave was arrested shortly thereafter and charged with and convicted of first-degree murder. The court followed the jury's seven-to-five vote and sentenced him to death. We affirmed. Id. The sentence was later vacated by the federal district court based on ineffective assistance of trial counsel during the penalty phase, and this ruling was affirmed by the federal circuit court. See Cave v. Singletary, 971 F.2d 1513 (11th Cir.1992).

Cave was given a second sentencing proceeding before a jury. The jury recommended death by a ten-to-two vote and the court again imposed a sentence of death. This Court vacated the sentence due to a procedural error in the trial court's disposition of Cave's motion for disqualification of the judge. See Cave v. State, 660 So.2d 705 (Fla.1995). Cave was given a third sentencing proceeding before a jury. The jury recommended death by an eleven-to-one vote and the court again imposed a sentence of death based on four aggravating circumstances,¹ one statutory mitigating circumstance,² and several nonstatutory mitigating circumstances.³ Cave now appeals this third sentence of death, raising twenty-six issues and numerous subissues.⁴ Cave first contends that his role in the murder was secondary and that his death sentence violates Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), and Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). This argument has already been rejected by this Court. See Cave v. State, 476 So.2d 180 (Fla.1985). Cave also claims that his role in the murder was minor and his death sentence is thus disproportionate. The trial court, however, found that Cave was a ringleader: "The defendant's role in the entire criminal episode ... shows that he exercised a leadership role throughout." Competent substantial evidence supports the trial court's finding. We find no error.

Cave contends that there was insufficient evidence of CCP to support this aggravator. We disagree. The standard for evaluating a trial court's finding of an aggravating circumstance was set forth in Willacy v. State, 696 So.2d 693 (Fla.), cert. denied, ___ U.S. ___, 118 S.Ct. 419, 139 L.Ed.2d 321 (1997):

[I]t is not this Court's function to reweigh the evidence to determine whether the State proved each aggravating circumstance beyond a reasonable doubt—that is the trial court's job. Rather, our task on appeal is to review the record to determine whether the trial court applied the right rule of law for each aggravating circumstance and, if so, whether competent substantial evidence supports its finding.

Id. at 695. In the present case, the trial court found the following:

Clearly there was no pretense of moral or legal justification for this killing. The cold, calculated, and premeditated nature of it was shown by the general plan of the defendant and his associates to find a convenience store to rob, by defendant being the one with the gun during the robbery, by defendant being the one who chose to lead the victim out of the store at gun-point, by the defendant keeping her in the back seat of the car for the long ride out to the scene of the murder, and by the defendant taking her out of the car and turning her over to Bush and Parker who knifed and shot her. The Court finds that this aggravating circumstance has been established beyond a reasonable doubt.

The record shows that the court applied the right rule of law (i.e., it gave the standard instruction on CCP), and competent substantial evidence supports its ruling. See, e.g., Preston v. State, 607 So.2d 404 (Fla.1992). We find no error.

Cave next claims that there was insufficient evidence of HAC to support this aggravator. We disagree. The trial court found as follows:

In the present case this Defendant personally removed the victim from the convenience store at gun point, placed her in the back seat of the car in which he and a co-defendant were seated, heard her pleas for her life during a fifteen to eighteen minute ride to an isolated area, removed her from the car and turned her over to Bush and Parker who stabbed and then shot her. At some point her panties were wet with urine. The terror she experienced must have been horrible and meets the definition of especially heinous, atrocious and cruel. The situation here is in contrast to a killing that is sudden and unexpected. The Court finds that this aggravating circumstance has been established beyond a reasonable doubt.

Our review of the record shows that the court applied the right rule of law (i.e., it gave the standard instruction on HAC), and competent substantial evidence supports its ruling. See, e.g., id. We find no error.

Cave contends that there was insufficient evidence of witness elimination to support this aggravator. We disagree. The trial court found as follows:

The Court finds beyond a reasonable doubt this aggravating factor has been proven. The purpose of the abduction and killing was clearly to eliminate the only witness to the robbery. The Court is not bound to believe defendant's statement that he did not intend or expect the victim to be murdered. The evidence shows that defendant had a leadership participation in the entire criminal episode.

The record shows that the trial court applied the right rule of law (i.e., it gave a proper instruction on this aggravator), and competent substantial evidence supports its ruling. See, e.g., id. We find no error.

Cave next claims that the trial court improperly based its findings of the CCP and witness elimination aggravators on the same facts. The record, however, shows that although the two aggravators share common facts, the witness elimination aggravator is supported by additional independent facts. There was little reason for the men to kidnap Slater except to kill her at their leisure in isolated surroundings where they would not be surprised or observed; and there was no other reason to kill her—she was not shot accidently or in an escape attempt. See, e.g., Stein v. State, 632 So.2d 1361 (Fla.1994). We find no error.

Cave claims that the trial court erred in attributing little weight to the mitigating circumstance of "no significant history of prior criminal activity." We disagree. This Court in Blanco v. State, 706 So.2d 7 (Fla. 1997), summarized the Campbell standards of review for mitigating circumstances:

The Court in Campbell v. State, 571 So.2d 415 (Fla.1990), established relevant standards of review for mitigating circumstances: 1) Whether a particular circumstance is truly mitigating in nature is a question of law and subject to de novo review by this Court; 2) whether a mitigating circumstance has been established by the evidence in a given case is a question of fact and subject to the competent substantial evidence standard; and finally, 3) the weight assigned to a mitigating circumstance is within the trial court's discretion and subject to the abuse of discretion standard.

Id. at 10 (footnotes omitted).

In the present case, the trial court found as follows concerning the mitigating circumstance of lack of prior criminal activity:

The Court finds that this mitigating factor has been proven. It is entitled to little weight, however, in view of the enormity of the crimes committed in this episode. This Court was once asked by a bank robber for leniency as it was his first bank robbery. The implication was that everyone is entitled to one bank robbery. In the instant case it cannot be said that defendant is entitled to much consideration because it is his first murder or that robbery, kidnapping and murder were the first crimes he chose to commit.

We conclude that the trial court's assignment of weight to this aggravator comports with Campbell (i.e., "the weight assigned to a mitigating circumstance is within the trial court's discretion and subject to the abuse of discretion standard," Blanco, 706 So.2d at 10). We cannot say on this record that no reasonable person would assign little weight to this aggravator.⁵ We find no error.

Cave contends that the trial court erred in failing to find as a mitigating circumstance that he was a minor participant in the murder. We disagree. The trial court found as follows:

The defendant's role in this murder, as noted above, included leadership activities. He participated in casing out the convenience store, he carried the gun throughout the robbery and the kidnapping, and only relinquished it to Parker for the execution. Defendant personally directed the victim out of the store and into the car. He held her captive in the back seat during her pleas for her life. He got her out of the car and turned her over to Bush and Parker who promptly stabbed and shot her.

We conclude that the trial court's finding that this proposed mitigating circumstance was not established comports with Campbell (i.e., "whether a mitigating circumstance has been established by the evidence in a given case is a question of fact and subject to the competent substantial evidence standard," Blanco, 706 So.2d at 10)....