Derrick v. State

• Decision Date: 23 June 1994
• Docket Number: No. 79143,79143
• Citation: 641 So.2d 378
• Parties: 19 Fla. L. Weekly S341 Samuel Jason DERRICK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 378

641 So.2d 378

19 Fla. L. Weekly S341

Samuel Jason DERRICK, Appellant, v. STATE of Florida, Appellee.

No. 79143.

Supreme Court of Florida.

June 23, 1994.

Rehearing Denied Aug. 31, 1994.

James Marion Moorman, Public Defender, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.

Robert A. Butterworth, Atty. Gen., and Candance M. Sabella, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Samuel Jason Derrick appeals his sentence of death. We have jurisdiction under article V, section 3(b)(1), of the Florida Constitution.

Derrick was convicted of the first-degree murder of a general store clerk and was sentenced to death. On appeal, this Court affirmed the conviction but vacated the sentence and remanded for a new sentencing. Derrick v. State, 581 So.2d 31 (Fla.1991). ¹

After the resentencing proceeding, the jury recommended death by a vote of seven to five. The trial court found the following aggravating factors: (1) the murder was committed while Derrick was engaged in the commission of a robbery; (2) the murder was committed for the purpose of avoiding lawful arrest; and (3) the murder was especially heinous, atrocious, or cruel. Sec. 921.141(5)(d), (e), (h), Fla.Stat. (1991). Regarding mitigation, the court found that Derrick was "quite young" at the time of the killing ² and that Derrick has some potential for rehabilitation. The court also found that Derrick had helped illiterate inmates in prison and had helped his handicapped brother. The court found that the aggravating factors outweighed the mitigating factors and sentenced Derrick to death.

As his first issue on appeal, Derrick contends that the trial judge erred in his response to a jury inquiry. During their deliberations, the jurors sent a note to the judge stating: "Upon voting on such case, the jury has ended with a vote count of equal amount, six votes for death and six votes for life." The judge consulted counsel and, with their consent, reinstructed the jury as follows:

The advisory verdict need not be unanimous. The recommendation or imposition of the death penalty must be by a majority of the jury. A recommendation of incarceration for life with no eligibility of parole for twenty-five years may be made either by a majority of you or an even division of the jury. That is, a tie vote of six to six.

Subsequently, the jury returned with a seven to five death recommendation.

Derrick argues that after the jury had announced a tie vote reinstruction of any kind was improper. The trial judge should have instructed the jury foreman to sign the life sentence recommendation, Derrick argues, instead of sending the jury back for further deliberation. To support his contention, Derrick cites Rose v. State, 425 So.2d 521 (Fla.), cert. denied, 461 U.S. 909, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983), and Patten v. State, 467 So.2d 975 (Fla.), cert. denied, 474 U.S. 876, 106 S.Ct. 198, 88 L.Ed.2d 167 (1985).

In Rose, the jury, during the sentencing phase of a capital trial, advised the court: "We are tied six to six, and no one will change their mind at the moment. Please instruct us." 425 So.2d at 525. In response, the court gave the jury an "Allen charge." ³ Subsequently, the jury returned a death recommendation, which the trial court followed. On appeal, this Court found that the giving of the Allen charge was reversible error. We stated, "the trial judge should have advised the jury that it was not necessary to have a majority reach a sentencing recommendation because, if seven jurors do not vote to recommend death, then the recommendation is life imprisonment." Id. Patten also involved an Allen charge given in response to a capital sentencing jury's notice that they were tied six to six. 467 So.2d at 977. Citing Rose, this Court found reversible error. Id. at 979-80.

The State argues that this issue is procedurally barred. Further, the State contends that the trial court's instruction in the instant case did not conflict with Rose and Patten. We agree.

After informing counsel of the jury inquiry in the instant case, the judge suggested that he reread that portion of the instruction which he felt would help the jury resolve its dilemma. Derrick's attorney did not object to this suggested course of action, and, in fact, expressly agreed to the instruction. Under these circumstances, Derrick has waived his right to appeal this issue.

Even if this issue were not barred, we find that the reinstruction was proper. In Rose and Patten, the instruction which we deemed improper was an Allen charge. In the instant case, the court did not give an Allen charge in response to the jury inquiry. Instead, the court followed our directive in Rose and reinstructed the jury that, if seven jurors do not vote to recommend death, then the recommendation is life imprisonment. Rose, 425 So.2d at 525. This instruction is not, as Derrick contends, coercive. The fact that the jury subsequently returned with a seven to five death recommendation merely indicates that their original vote was a preliminary one and that a juror changed his or her mind.

Derrick next claims that the trial court erred by instructing the jury on the aggravating circumstances that the murder occurred during the commission of a robbery and that the crime was committed for pecuniary gain. We have held that a trial court's finding of both of these aggravating factors constitutes improper doubling. Provence v. State, 337 So.2d 783, 786 (Fla.1976), cert. denied, 431 U.S. 969, 97 S.Ct. 2929, 53 L.Ed.2d 1065 (1977). However, Provence dealt with improper doubling in the judge's sentencing order. It did not relate to jury instructions. In rejecting the argument Derrick now makes, this Court in Suarez v. State, 481 So.2d 1201, 1209 (Fla.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2908, 90 L.Ed.2d 994 (1986), explained:

The jury instructions simply give the jurors a list of arguably relevant aggravating factors from which to choose in making their assessment as to whether death was the proper sentence in light of any mitigating factors presented in the case. The judge, on the other hand, must set out the factors he finds both in aggravation and in mitigation, and it is this sentencing order which is subject to review vis-a-vis doubling.

Id. Thus, instructing the jury on both the murder during the course of a robbery and the pecuniary gain aggravating factors is not error. In Castro v. State, 597 So.2d 259, 261 (Fla.1992), a case decided after the penalty phase proceeding in the instant case, we held that the trial court may give a limiting instruction advising the jury that, "should it find both aggravating factors present, it must consider the two factors as one." However, we pointed out that the court is not required to give such a limiting instruction unless one is specifically requested by the defendant.

In the instant case, the trial court instructed the jury on both aggravating factors. Derrick's attorney did not request a limiting instruction, and one was not given. During the jury charge conference, the judge expressly...