Davis v. State, 70551

• Decision Date: 05 September 1991
• Docket Number: No. 70551,70551
• Citation: 586 So.2d 1038
• Parties: 16 Fla. L. Weekly S602 Mark A. DAVIS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1038

586 So.2d 1038

16 Fla. L. Weekly S602

Mark A. DAVIS, Appellant, v. STATE of Florida, Appellee.

No. 70551.

Supreme Court of Florida.

Sept. 5, 1991.

Rehearing Denied Oct. 30, 1991.

Mark A. Davis, in pro. per.

Aubrey O. Dicus, Jr. and Margie I. Fraley of Battablia, Ross, Hastings & Dicus, St. Petersburg, for appellant.

Robert A. Butterworth, Atty. Gen. and Gary O. Welch and Peggy A. Quince, Asst. Attys. Gen., Tampa, for appellee.

PER CURIAM.

Mark A. Davis was convicted of first-degree murder, robbery, and grand theft. The jury recommended the death penalty by a vote of eight to four, which the trial judge imposed. Appellant appeals his murder conviction and death sentence. ¹ We have jurisdiction. Art. V, Sec. 3(b)(1), Fla.Const.

Appellant came to St. Petersburg, Florida, during late June 1985, and immediately prior to the murder of Orville Landis apparently had been living in the parking lot of Gandy Efficiency Apartments. On July 1, 1985, Landis was moving into one of the apartments, and appellant offered to assist him. Subsequent to moving, the two men began drinking beer together, and appellant borrowed money from Landis. Witnesses testified that Landis had approximately $500 in cash that day. Appellant told Kimberly Rieck, a resident of the apartment complex, that he planned to get Landis drunk and "see what he could get out of him." During approximately the same time, appellant told Beverly Castle, another resident, that he was going to "rip him [Landis] off and do him in." Shortly thereafter, Landis and appellant were seen arguing about money and they went to Landis' apartment.

Landis was last seen alive on July 1, 1985, at approximately 8:30 p.m. Castle testified that appellant appeared at her door at about midnight and told her that he had to leave town right away, and would not be seen for two or three years. Castle observed appellant driving away in Landis' car. During the afternoon of July 2, Castle became concerned and had Landis' apartment window opened, through which she observed him lying on his bed in a pool of blood.

When the police arrived they found Landis' wallet empty of all but a dollar bill. A fingerprint found on a beer can in the apartment was later identified as appellant's. The medical examiner testified that the victim sustained multiple stab wounds to the back, chest, and neck; multiple blows to the face; was choked or hit with sufficient force to break his hyoid bone; was intoxicated to a degree that impaired his ability to defend himself; and was alive and conscious when each injury was inflicted. The evidence showed that the slashes to the victim's throat were made with a small-bladed knife, which was broken during the attack, and the wounds to the chest and back were made with a large butcher knife, found at the crime scene.

Appellant confessed to the police to the killing, as well as to the taking of Landis' money and car. He also told a fellow inmate that he killed Landis but expected to "get second degree," despite his confession, by claiming self-defense.

Appellant raises nine points on appeal, five of which are raised pro se. Relying on Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), he argues that the statutory aggravating factor "especially heinous, atrocious, or cruel" is unconstitutionally vague. We rejected this argument in Smalley v. State, 546 So.2d 720 (Fla.1989).

Appellant asserts there was insufficient evidence that the murder was cold, calculated, and premeditated. ² We disagree. Castle testified that appellant told her he was going to rip the victim off and "do him in." Furthermore, during the course of inflicting twenty-five stab wounds upon the victim, appellant first used a butcher knife and then resorted to a second knife to continue the brutal slaying. The medical expert opined that no struggle took place other than in the victim's bed, and that the attacker was standing next to the bed during the murder. These facts support the finding that this murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. Haliburton v. State, 561 So.2d 248 (Fla.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2910, 115 L.Ed.2d 1073 (1991).

Appellant argues that the trial court erred by allowing the victim's daughter to read a statement to the sentencing judge. ³ In Grossman v. State, 525 So.2d 833, 842, 845 (Fla.1988), cert. denied, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989), we held that admission of "victim impact" evidence as an aggravating factor in capital sentencing is subject to harmless error analysis. We hold the error here harmless. Relevant to that analysis is the fact that the jury was not exposed to the improper evidence of victim impact, yet recommended death. ⁴ The sentencing judge's written findings in aggravation are limited to statutorily enumerated factors--there is no evidence of reliance on the daughter's statement. ⁵ We conclude beyond a reasonable doubt that the sentencing judge would have imposed the death penalty in the absence of the victim impact evidence.

Appellant asserts that the court committed error in the admission of a videotape and a color photograph. We disagree. The videotape depicts the victim's wounds and the murder scene, and was used by the medical examiner during her testimony to explain the wounds inflicted, and to demonstrate that two different knives were used. The videotape was also used to show that the murder scene was inconsistent with a struggle outside of the confines of the victim's bed, thus refuting appellant's claim of self-defense. The photograph, of the victim's face, depicts wounds not visible on the videotape. These were relevant and admissible. Straight v. State, 397 So.2d 903 (Fla.), cert. denied, 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 418 (1981). See also Thompson v. State, 565 So.2d 1311, 1315 (Fla.1990) (gruesome nature of photographs does not render decision to admit them into evidence an abuse of discretion).

The trial judge granted appellant the right to act as cocounsel, but determined that only one attorney for each...