Cave v. State
| Decision Date | 30 August 1985 |
| Docket Number | No. 63172,63172 |
| Citation | 476 So.2d 180,10 Fla. L. Weekly 481 |
| Parties | 10 Fla. L. Weekly 481 Alphonso CAVE, Appellant, v. STATE of Florida, Appellee, |
| Court | Florida Supreme Court |
Wayne R. McDonough of Saliba and McDonough, Vero Beach, for appellant.
Jim Smith, Atty. Gen., and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant Cave was convicted of one count each of first-degree murder, robbery with a firearm, and kidnapping. The trial judge followed the jury's recommendation and imposed the death sentence for the first-degree murder. In addition, the trial judge sentenced Cave to concurrent life sentences for kidnapping and robbery with The relevant facts are as follows. Cave and three accomplices left Ft. Pierce, Florida, on the evening of April 26, 1982, and drove to Stuart, Florida. They arrived in Stuart at approximately 11 p.m. that evening. The driver, and owner of the car in which all four rode, was John Earl Bush. The other two accomplices were J.B. ("Pig") Parker and Terry Wayne Johnson ("Bo Gator"). At approximately 3 a.m. on the following morning, the four men drove to a convenience store in Stuart. Cave and two of the men entered the store where Cave held a hand gun on the youthful female clerk and demanded the store's cash. The clerk surrendered the cash, whereupon she was taken from the store and placed in the back seat of the car. The men drove her to a rural area approximately thirteen miles away where she was removed from the car by the four men. After leaving the car, one of the men stabbed the victim and, when she fell, another fired a single lethal shot into the back of her head. The men then departed the scene but were stopped approximately an hour later enroute back to Ft. Pierce by police officers because of a defective taillight. They were released at that time but later apprehended when the car and its occupants were linked to the convenience store crime.
a firearm. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm all convictions and sentences.
Appellant raises thirty-one repetitive and overlapping points, none of which have merit, and few of which warrant extended discussion. 1
Appellant urges that the trial court erred in the jury selection process by excluding jurors in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and quotes selected answers from two excluded jurors in support. We have reviewed the complete voir dire of the jurors and it is clear that both veniremen unequivocally stated that their opposition to the death penalty would not permit them to apply the law or view the facts impartially. 2 Wainwright v. Witt, 469 U.S. --- Appellant urges that appellant's confession was involuntarily given as a result of improper influence and that the trial court erred in admitting the confession. The thrust of appellant's argument is that appellant was summoned for questioning in the early morning hours, that he maintained his innocence for approximately two hours but succumbed to pressure when the taped confession of an accomplice which implicated him was played back to him and he was questioned by a black detective who undermined his resistance by obtaining rapport. (Appellant is also black.) The record belies appellant's argument. The accomplice's confession implicating appellant in the crimes was obtained in Stuart, Florida, in the mid to late evening. The police promptly set in motion measures to approach the three accomplices through the police in Ft. Pierce, Florida, and to determine if they would voluntarily talk with the police about their alleged involvement. It was early morning before the men were located. Appellant voluntarily agreed to accompany the police and repeatedly received and acknowledged his Miranda 3 rights. There is nothing in the record to suggest that appellant ever asked for an attorney or that any coercion was involved in obtaining appellant's statement. The taped statement includes the Miranda rights and appellant's acknowledgment of those rights. An initial profession of innocence, without more, does not require that the police cease questioning. When the suspect is informed of, but does not exercise, his rights to remain silent or to obtain counsel, the police may continue their questioning. We find sufficient evidence to support the trial judge's finding that the confession was freely and voluntarily made. Bush v. State, 461 So.2d 936 (Fla.1984).
-, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); Witherspoon.
Appellant urges that the state relied on the felony murder doctrine as a basis In a closely related argument, appellant also urges that the trial court erred in requiring defense counsel to proffer her closing argument during the guilt phase. The record shows that counsel was attempting to argue to the jury that it could not find guilt on first-degree murder unless appellant personally killed the victim. After several objections were sustained, the trial judge removed the jury and directed that the remainder of the argument be proffered. This was appropriate under the circumstances. First-degree felony murder does not require that the accused personally perform the killing. Counsel may not contravene the law and the jury instructions in arguing to the jury.
for first-degree murder in violation of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). We do not so read Enmund. First, Enmund does not address convictions for first-degree murder; it concerns the sentence of death for such murders. Second, Enmund is factually dissimilar to the instant case as we show below
Appellant urges that the trial court erred in refusing to instruct the jury on second-degree felony murder. We disagree. The evidence shows that appellant was present at all times and was a major actor in the robbery, kidnapping and murder. There was no basis for an instruction on second-degree felony murder. State v. Lowery, 419 So.2d 621 (Fla.1982).
Appellant urges that the trial court erred by incorrectly instructing the jury that a majority vote was required to reach an advisory sentence and that it should tabulate the aggravating and mitigating circumstances in order to reach an advisory sentence. The record does not support this argument. The jury was told that a vote of 6-6 was an advisory sentence of life imprisonment but that a majority vote was required in order to recommend death. Further, the jury was told to weigh the aggravating versus mitigating circumstances, not to merely count them.
During the jury deliberations on the advisory sentence, the jury delivered to the court a note stating:
We are at a split decision. We would like it stated and published to the Court of this advisory sentence. The current form does not allow for this revelation. Please advise.
With the concurrence of both the prosecutor and the defense counsel, the trial court responded:
Under the Instructions I have given you, if by six or more votes the Jury determines that the Defendant should not be sentenced to death, your advisory sentence would be:
The jury advises and recommends to the Court that it impose a sentence of life imprisonment upon the Defendant without the possibility of parole for twenty-five years.
Approximately eight minutes later, the jury reported by a vote of 7-5 that it recommended the death penalty. Based on this exchange, appellant argues that the jury's initial request for advice constituted a 6-6 vote for life imprisonment which the court should have accepted as such. We disagree, noting first that the query referred to a split decision, not a 6-6 vote. Neither the judge nor the parties could know whether the "split decision" referred to an 11-1, 6-6, or 1-11 vote on the death penalty. Thus, the judge's response, with the positive approval and without objection of the defense counsel, was the correct response. We note, further, that after the jury returned its advisory sentence of death, the judge immediately polled each jury member as to whether the advisory sentence was correctly stated and that each member confirmed that it was so.
Appellant also urges the related point that the trial court erred in denying defense counsel's motion to discuss with the individual jurors their thoughts and/or misunderstandings believed to have resulted in the advisory sentence for the death penalty. The circumstances of this motion are as follows. On the day following [W]here the record does not reveal any misconduct or irregularity on the part of any juror, the case was fairly and impartially tried and each juror is polled and announces the verdict to be his or hers, it is improper to allow jurors to be interviewed. National Indemnity Co. v. Andrews, 354 So.2d 454, 455 (Fla. 2d DCA 1978).
the dismissal of the jury, when the court convened for sentencing, defense counsel moved the court for a mistrial as to the advisory verdict on the ground that the jury's query to the court on the previous day represented an advisory sentence of life imprisonment. In doing so, defense counsel inaccurately stated to the court that the jury's note "specifically said that the jury was at a six-six tie, and asked the court to advise them accordingly, Judge." Following denial of this motion, defense counsel moved to question all the dismissed jurors individually and to present testimony on statements one or more had allegedly made to the press and to an assistant public defender with regard to the jurors' understanding of the court's response to the query. We agree both with the judge's denial of this motion and with the rationale. The privacy and sanctity of jury deliberations are critical to the right of a jury trial
Cummings v. Sine, 404 So.2d 147, 148 (Fla. 2d DCA 1981). This respect for jury deliberations is particularly appropriate where, as here, we are...
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