Cheshire v. State, 74477

• Decision Date: 27 September 1990
• Docket Number: No. 74477,74477
• Citation: 568 So.2d 908
• Parties: 15 Fla. L. Weekly S504 Steven Edward CHESHIRE, Appellant/Cross Appellee, v. STATE of Florida, Appellee/Cross Appellant.
• Court: Florida Supreme Court

Page 908

568 So.2d 908

15 Fla. L. Weekly S504

Steven Edward CHESHIRE, Appellant/Cross Appellee, v. STATE of Florida, Appellee/Cross Appellant.

No. 74477.

Supreme Court of Florida.

Sept. 27, 1990.

James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant/cross appellee.

Robert A. Butterworth, Atty. Gen., and Barbara C. Davis, Asst. Atty. Gen., Daytona Beach, for appellee/cross appellant.

PER CURIAM.

Steven Edward Cheshire appeals from an order imposing a sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

In the early morning hours of October 30, 1988, residents of the Alhambra Trailer Park in Palatka heard a gunshot, a scream that lasted "just a few seconds," and another gunshot. One resident reported looking out his trailer and seeing nothing unusual. Another saw a bedroom light on in Darrell Durbin's trailer; also Durbin's front door was ajar.

When daylight came, neighbors reported seeing that cars parked in front of Durbin's trailer had flat tires, because they had been slashed. These neighbors called the police and reported the suspicious events they had witnessed. When a deputy arrived, he received no response from inside the trailer and entered through an unlatched door. There, he found the nude bodies of a man and a woman, both of whom had been shot and killed. The victims were Mary Cheshire and Darrell Durbin.

Police immediately suspected Steven Cheshire, the estranged husband of Mary. The night of the murders, a marked cruiser had seen Steven's car driving suspiciously not far from the trailer park.

Witnesses later testified that Cheshire had threatened to kill Mary if she ever left him. Some six weeks before the murders, Mary in fact had left her husband and told her sister that her husband had threatened to kill her. At this time, Mary moved in with Durbin.

One witness also testified that Cheshire had become extremely upset when he learned that his son had begun calling Durbin "daddy."

Steven Cheshire denied killing his wife. After his arrest, he called his former wife, Kathy Pappy, and told her he had had an argument with his girlfriend, Sharon Patria, on the night of the murders. Cheshire said he had gone to the Clock Restaurant, but decided not to stop. Later, said Cheshire, he went home around two o'clock.

Physical evidence of the murder was inconclusive. A phenolphthalein test indicated that at least one of seven stains found on a shirt worn by Cheshire was blood. Another expert testified that a shoe print found in Durbin's driveway "most probably" was made by Cheshire's right shoe, but could not tell when the track was made. A variety of shotgun shells were found at Cheshire's trailer, but none matched the shot that had killed Durbin.

Cheshire was tried on two counts of first degree murder and one count each of burglary, shooting into an occupied building and misdemeanor criminal mischief. The jury found Cheshire guilty as charged.

At the penalty phase, neither Cheshire nor the state presented any evidence. The jury then recommended life sentences by a vote of eleven to one for the murder of Durbin and ten to two for the murder of Mary Cheshire.

For the murder of Durbin, the trial court concurred in the jury recommendation and sentenced Cheshire to life. He also sentenced Cheshire to seven years for burglary, nine years for shooting into an occupied building and seven years for criminal mischief.

The trial court overrode the jury recommendation for the murder of Mary Cheshire, finding no mitigating factors and three aggravating factors. These three were prior conviction of a capital felony (the murder of Durbin), murder committed during a burglary, and heinous, atrocious and cruel.

As his first issue, Cheshire contends that the trial court's decision to override the jury recommendation of life imprisonment for the murder of Mary Cheshire was improper. The second issue is closely related: In it, Cheshire argues that the trial court erred by concluding that emotional disturbance was not a mitigating factor here because the disturbance failed to meet the statutory criterion of being "extreme." § 921.141(6)(b), Fla.Stat. (1987). We agree with both points.

The record before us contains ample mitigating evidence, improperly ignored by the trial court, to support the jury's recommendation of life imprisonment. If facts are evident on the record upon which a reasonable juror could rely to recommend life imprisonment, then the trial court errs in overriding the life recommendation. Freeman v. State, 547 So.2d 125, 129 (Fla.1989); Tedder v. State, 322 So.2d 908, 910 (Fla.1975).

Indeed, the trial court's order below reflects some confusion as to exactly what constitutes a mitigating factor under applicable law. As we explained in Rogers v. State, 511 So.2d 526, 534 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988),

the trial court's first task in reaching its conclusions is to consider whether the facts alleged in mitigation are supported by the evidence. After the factual finding has been made, the court then must determine whether the established facts are of a kind capable of mitigating the defendant's punishment, i.e., factors that, in fairness or in the totality of the defendant's life or character may be considered as extenuating or reducing the degree of moral culpability for the crime committed. If such factors exist in the record at the time of sentencing, the sentencer must determine whether they are of sufficient weight to counterbalance the aggravating factors.

(Emphasis added.) The record before this Court discloses substantial mitigating evidence available to the jury, upon which the life recommendations reasonably could have been based. All of this evidence came from the state's own witnesses, since Cheshire exercised his privilege of presenting no case of his own.

First, based upon the state's case and the physical evidence, the murders at issue in this case reasonably could be characterized as the tragic result of a longstanding lovers' quarrel between Cheshire and his estranged wife. It is well established under Florida law that this type of situation constitutes valid mitigation. Fead v. State, 512 So.2d 176, 179 (Fla.1987), receded from on other grounds, Pentecost v. State, 545 So.2d 861 (Fla.1989); Irizarry v. State, 496 So.2d 822, 825 (Fla.1986); Ross v. State, 474 So.2d 1170 (Fla.1985); Blair v. State, 406 So.2d 1103 (Fla.1981); Kampff v. State, 371 So.2d 1007 (Fla.1979); Chambers v. State, 339 So.2d 204 (Fla.1976).

Second, there was some evidence that Cheshire had been drinking at the time of the murder. Although the judge concluded that Cheshire was not sufficiently intoxicated, we nevertheless must acknowledge that a reasonable jury could have relied upon this evidence to conclude that Cheshire was not in control of his full faculties. There is no evidence whatsoever that Cheshire began drinking as a way of developing the "courage" to commit the murders. Thus, this is valid mitigation. Robinson v. State, 487 So.2d 1040, 1043 (Fla.1986); Amazon v. State, 487 So.2d 8 (Fla.), cert. denied, 479 U.S. 914, 107 S.Ct. 314, 93 L.Ed.2d 288 (1986).

Finally, the defense argues that the evidence is entirely consistent with a theory that Cheshire's acts were a crime of passion prompted in part by emotional distress over his pending divorce and the belief that his wife was encouraging their son to call Durbin "daddy." The state at oral argument conceded that this conclusion is consistent with the evidence, although the state also argued that the evidence is equally consistent with a motive of calculated revenge. Here again, the trial court agreed with the state and rejected this mitigation because the judge believed Cheshire later had "calmed down."

However, under Tedder, the trial court's role is solely to determine whether the evidence in the record was sufficient to form a basis upon which reasonable jurors could rely in recommending life imprisonment. As the state conceded at argument, the mitigating evidence cited by Cheshire is consistent with the evidence. Similar evidence also has been held to be valid mitigation in other analogous Florida cases.

Thus, it necessarily follows that a reasonable juror could have relied upon this evidence to conclude that Cheshire lost control of himself because of intoxication, a perceived affront to his family status and the emotional distress that accompanies a failing marriage, and the fact that his spouse had left him for another person. Events that result in a person succumbing to the passions or frailties inherent in the human condition necessarily constitute valid mitigation under the Constitution and must be considered by the sentencing court. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

In finding no valid mitigating factors, the trial court discussed some of the evidence we have noted above but rejected it out-of-hand without considering the reasonable-juror standard of Tedder. This misapplication of the Tedder standard resulted in an erroneous jury override that now must be reversed.

Moreover, in its written order, the trial court expressly concluded that this evidence did not support the statutory mitigating factor of "extreme" mental disturbance, because the disturbance here was not extreme. In addition, the trial court noted that it had considered "all other relevant testimony and argument as to statutory mitigating factors" (emphasis added). There is no mention of nonstatutory mitigating factors in the written order, although the trial court did mention and out-of-hand reject such factors in its oral statements at sentencing.

Florida's capital sentencing statute does in fact require that emotional disturbance be "extreme." However, it clearly would be unconstitutional for the state to restrict the trial court's consideration solely to "extreme" emotional disturbances. Under the...