Clark v. State, 62126

• Decision Date: 22 December 1983
• Docket Number: No. 62126,62126
• Citation: 443 So.2d 973
• Parties: Larry CLARK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 973

443 So.2d 973

Larry CLARK, Appellant, v. STATE of Florida, Appellee.

No. 62126.

Supreme Court of Florida.

Dec. 22, 1983.

Rehearing Denied Feb. 7, 1984.

Simson Unterberger of Kessler & Unterberger, Tampa, for appellant.

Jim Smith, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Larry Clark appeals his conviction of first-degree murder and sentence of death. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution. We affirm both the conviction and sentence.

Following indictment by a Hillsborough County grand jury for first-degree murder, attempted first-degree murder, and armed robbery, a jury convicted Clark of all three counts and, by a vote of eight to four, recommended the death sentence. The trial court followed the jury's advisory verdict by imposing a sentence of death.

The crimes occurred on the afternoon of October 30, 1981 in Tampa. Two men entered a sign shop owned by the victims, Felix and Dorothy Satey, husband and wife. One of the men, subsequently identified by Mr. Satey as Clark, had a gun. After shooting Mr. Satey twice and robbing him, Clark and his companion entered the residential portion of the premises and found the seventy-four-year-old Mrs. Satey who was confined by a physical disability to a castored typist's chair. Mr. Satey pleaded that his wife not be harmed, then heard a gunshot followed by his wife's moaning. When found, Mrs. Satey had a gunshot wound over the right eye, from which she subsequently died.

The first asserted error relating to the conviction is the admission, over defense counsel's objection, of certain testimony of Richard E. Casey, a handwriting expert. Mr. Casey's qualifications as an expert in the field of questioned documents was not contested. The testimony to which Clark's counsel objected concerned the taking of handwriting exemplars from Davidson Joel James, Clark's co-defendant, whose trial was severed from that of Clark. Mr. Casey testified that the unusual length of time James took to complete the exemplars was evidence that James, "through apprehension or other reasons," was trying to vary his handwriting from that which he used in everyday writing. Defense counsel objected, contending that this testimony allowed an inference that James was trying to hide something. Such an inference could then have a "spill-over" effect on Clark. Clark argues here, as at trial, that Casey was not qualified to speculate on the reasons an individual's handwriting might vary from one time to another. The trial court's determination that Casey was qualified by experience and training to make such an assessment is fully supported by the record. Further, defense counsel negated any alleged spill-over effect on cross-examining Casey by establishing that Clark, unlike James, completed his handwriting exemplars very quickly. Casey's testimony was properly admitted.

The second claimed error concerns the denial of a motion for mistrial when, during its deliberations, the jury requested that it be allowed to look at a windbreaker, allegedly belonging to the co-defendant James. The jacket had been excluded from evidence because it had not been exhibited to defense counsel prior to trial. Although the trial court denied the motion for mistrial, it acceded to the defense request that the jury be instructed that its members not concern themselves with the jacket because it had not been admitted into evidence. The court further instructed the jury that it should not draw any inferences from anything said about the jacket, nor should it speculate as to why the jacket was not in evidence. Clark speculates that the excluded jacket must have assumed a particular significance in the minds of the jury. Whatever prejudice may have been caused Clark by the jurors' interest in the jacket was cured by the trial court's response to their request to view it. In any event the jury's request does not demonstrate the sort of prejudicial impact which would make a mistrial an absolute necessity. See Ferguson v. State, 417 So.2d 639, 641 (Fla.1982); Salvatore v. State, 366 So.2d 745, 750 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979).

Having found no merit to Clark's arguments relating to the validity of his conviction, and further finding the conviction to be supported by substantial competent evidence, we turn to consideration of the sentence imposed on Clark. Against no statutory mitigating circumstances, the trial court found the following five aggravating circumstances:

1. The defendant had been previously convicted of a felony involving the use or threat of violence to the person. § 921.141(5)(b), Fla.Stat.

2. The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of a burglary and a robbery. § 921.141(5)(d), Fla.Stat.

3. The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. § 921.141(5)(e), Fla.Stat.

4. The capital felony was especially heinous, atrocious, or cruel. § 921.141(5)(h), Fla.Stat.

5. The capital felony was a homicide committed by the defendant in a cold, calculated, and premeditated manner without pretense of moral or legal justification. § 921.141(5)(i), Fla.Stat.

Clark specifically challenges the sufficiency of the evidence in support of the third and fourth of these aggravating circumstances.

The burden is upon the state in the sentencing portion of a capital felony trial to prove every aggravating circumstance beyond a reasonable doubt. Williams v. State, 386 So.2d 538 (Fla.1980). Not even "logical inferences" drawn by the trial court will suffice to support a finding of a particular aggravating circumstance when the state's burden has not been met. In regard to the third circumstance listed above, in order for a witness-elimination motive to support finding the avoidance of arrest circumstance when the victim is not a law enforcement officer, "[p]roof of the requisite intent to avoid arrest and detection must be very strong." Riley v. State, 366 So.2d 19, 22 (Fla.1978). We have also said that an intent to avoid arrest is not present, at least when the victim is not a law enforcement officer, unless it is clearly shown that the dominant or only motive for murder was the elimination of witnesses. Menendez v. State, 368 So.2d 1278 (Fla.1979).

Here the proof of such a dominant or exclusive motive for the killing of Dorothy Satey was established. Clark made a statement to a cellmate that "one of them could identify him." Mrs. Satey knew Clark from his past employment and had signed past paychecks to him. She knew, or would soon know, that he had just committed a violent felony on her husband. Because of her physical condition she was helpless to thwart further taking of the Satey's property, hence no other motive is readily apparent.

The trial court's fourth aggravating circumstance, that the murder was especially heinous, atrocious, or cruel, on the other hand, is insufficiently supported by the record. The murder of a disabled and defenseless elderly woman is a vile and despicable act. But under the standard set forth in State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974), an especially heinous, atrocious, or cruel homicide is one

where the actual commission of the capital felony was accompanied by such additional facts as to set the crime apart from the norm of capital felonies--the conscienceless or pitiless crime which is unnecessarily torturous to the victim.

Id. at 9. Directing a pistol shot to the head of the victim does not establish a homicide as especially...