Dougan v. State, No. 65217

• Court: United States State Supreme Court of Florida
• Writing for the Court: McDONALD; BOYD; ADKINS
• Citation: 470 So.2d 697,10 Fla. L. Weekly 302
• Decision Date: 30 May 1985
• Docket Number: No. 65217
• Parties: 10 Fla. L. Weekly 302 Jacob John DOUGAN, Jr., Appellant, v. STATE of Florida, Appellee.

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470 So.2d 697 10 Fla. L. Weekly 302 Jacob John DOUGAN, Jr., Appellant,
v.
STATE of Florida, Appellee. No. 65217. Supreme Court of Florida. May 30, 1985.

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Joseph M. Nursey, Atlanta, Ga., for appellant.

Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.

McDONALD, Justice.

In 1975 a jury convicted Dougan of one count of first-degree murder and recommended that he be sentenced to death. The trial court followed the jury's recommendation, and this Court, in a combined appeal by Dougan and a co-defendant, affirmed both the conviction and sentence. Barclay v. State, 343 So.2d 1266 (Fla.1977), cert. denied, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 237 (1978). Later, this Court remanded for the trial court to conduct a hearing pursuant to Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). Barclay v. State, 362 So.2d 657 (Fla.1978). After holding a Gardner hearing, the trial court again sentenced Dougan to death, and this Court again affirmed the sentence. Dougan v. State, 398 So.2d 439 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 367, 70 L.Ed.2d 193 (1981). We recently found that Dougan's appellate attorney had rendered ineffective assistance of counsel and that he had a conflict of interest in representing both Dougan and a co-defendant on appeal and that, therefore, Dougan should have a new appeal. Dougan v. Wainwright, 448 So.2d 1005 (Fla.1984). Dougan now appeals his conviction and sentence of death, giving us jurisdiction pursuant to article V, section 3(b)(1) of the state constitution. We affirm his conviction, but remand for a new sentencing hearing.

Dougan alleges five errors regarding his conviction: that the police improperly seized and searched his car; that the victim's stepfather should not have been allowed to identify pictures of the victim's body at trial; that the court erred in instructing the jury on felony murder; that the court improperly excluded relevant defense evidence; and that the court erred by excusing death-scrupled prospective jurors.

The police seized Dougan's car when they arrested him, but did not search it until after receiving his consent to do so. After a hearing, the trial court denied Dougan's motion to suppress items taken from the car because of the claimed illegality of the seizure and search. On the facts of this case we find no error on this point.

As a general rule, members of a victim's family should not identify a victim at trial. Welty v. State, 402 So.2d 1159 (Fla.1981). Such an identification, however, is not fundamental error. Id.; Barrett v. State, 266 So.2d 373 (Fla. 4th DCA 1972). Dougan's failure to make a specific contemporaneous objection to this testimony, therefore, forestalls appellate review. Barclay v. State, 470 So.2d 691 (Fla.1985). See Peavy v. State, 442 So.2d 200 (Fla.1983); Routly v. State, 440 So.2d 1257 (Fla.1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 888 (1984); Ray v. State, 403 So.2d 956 (Fla.1981).

Dougan and three co-defendants were tried together. At the charge conference the trial court indicated his willingness not to charge the jury on felony murder at the defendants' request. One co-defendant, however, also requested an instruction on third-degree murder, which is solely felony murder. § 782.04(4), Fla.Stat. (1975). The state then insisted that the entire charge for first-degree murder, including the felony murder portion, would have to be given in order for the jury to understand the charge on third-degree murder. The trial court agreed with this, and none of the defendants objected. Absent

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a specific contemporaneous objection, an instruction cannot be complained about on appeal. Ray v. State. The additional requested instruction on third-degree murder changed the rules of the game, so to speak, and we hold that the court's final decision to charge on felony murder should have been objected to as a prerequisite to bringing this point up on appeal.

At trial Dougan sought to present a police officer's testimony as to another murder. The state objected to this witness' testifying on the basis of relevancy. The defense did not demonstrate sufficient relevancy (Hitchcock v. State, 413 So.2d 741 (Fla.), cert. denied, 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982)) to the judge's satisfaction, and we find no abuse of discretion in the refusal to let this witness testify.

As the final point regarding his conviction, Dougan contends that the court erred in excusing for cause eight death-scrupled prospective jurors. He bases his argument on three claims: 1) the questioning was insufficient to determine if these people were properly excused for cause and misled them about the jurors' role in sentencing; 2) questioning prospective jurors about their views on the death penalty creates prejudice and implies a defendant is guilty; and 3) "death qualification" produces a "prosecution-prone" jury which is not a representative cross-section of the community. After studying the voir dire in this case, we hold that Dougan's first claim has no merit. The eight prospective jurors that he complains about stated unequivocally that they could not vote for guilty of first-degree murder if death were a possible penalty. The questions and answers meet the test of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and the trial court properly excused these prospective jurors for cause.

Dougan relies on Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983), in making his second and third claims. In Grigsby a federal district court...