Douglas v. State, 67603

• Decision Date: 15 January 1991
• Docket Number: No. 67603,67603
• Parties: 16 Fla. L. Weekly 280 Howard Virgil Lee DOUGLAS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 165

575 So.2d 165

16 Fla. L. Weekly 280

Howard Virgil Lee DOUGLAS, Appellant, v. STATE of Florida, Appellee.

No. 67603.

Supreme Court of Florida.

Jan. 15, 1991.

Rehearing Denied March 13, 1991.

James Marion Moorman, Public Defender and Douglas S. Connor, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Howard Lee Douglas was convicted of first-degree murder in 1973 and sentenced to death over a unanimous jury recommendation of life imprisonment. We affirmed the conviction and sentence. Douglas v. State, 328 So.2d 18 (Fla.), cert. denied, 429 U.S. 871, 97 S.Ct. 185, 50 L.Ed.2d 151 (1976). We affirmed the denial of Douglas' requested postconviction relief in Douglas v. State, 373 So.2d 895 (Fla.1979). The United States District Court for the Middle District of Florida denied Douglas' subsequent petition for writ of habeas corpus. On appeal, however, the United States Court of Appeals for the Eleventh Circuit found that Douglas' trial counsel was ineffective during the penalty phase. Defense counsel made statements to the trial judge emphasizing that there was no mitigating evidence and that Douglas "[had not] been a good boy." The court remanded to the federal district court, mandating that the writ be issued "unless the state resentences appellant in appropriate proceedings within a reasonable time." Douglas v. Wainwright, 714 F.2d 1532, 1558 (11th Cir.1983), vacated, 468 U.S. 1206, 104 S.Ct. 3575, 82 L.Ed.2d 874, reinstated, 739 F.2d 531 (11th Cir.1984), cert. denied, 469 U.S. 1208, 105 S.Ct. 1170, 84 L.Ed.2d 321 (1985). A resentencing hearing was held wherein the defense was allowed to introduce mitigating evidence. We have jurisdiction to review the sentence of death imposed upon resentencing. Art. V, § 3(b)(1), Fla. Const.

The trial court found two aggravating circumstances: (1) the murder was especially heinous, atrocious, or cruel, section 921.141(5)(h), Florida Statutes (1985); and (2) the murder was committed in a cold, calculated, and premeditated manner without any moral or legal justification, section 921.141(5)(i), Florida Statutes (1985). We find that the evidence supports only the first of these factors.

The case involves an emotional triangle between Douglas, the victim, and the victim's wife. Helen Atkins and Douglas were involved in a domestic relationship for approximately one year prior to Helen's marriage to Jay Atkins in August 1972. The Atkinses lived together three months after their marriage, and, thereafter, cohabitated only sporadically. In May of 1973, Helen was homeless, living in a car, and eight months pregnant with Jay's child. She approached Douglas for assistance which he provided. The baby was born June 25, 1973. Ten days later, on July 5, Jay and Helen Atkins began living together once again. Eleven days later, Douglas pulled alongside of the Atkinses' car and motioned for them to pull over. Helen testified that Jay expressed his feeling that something bad was about to happen and asked that she promise to stay alive. Douglas got into the Atkinses' car, rifle in hand, stating that he would direct them to his other car where they would pick up some clothes belonging to Helen's children. Helen testified that Douglas then "said he felt like blowing our ... brains out." Douglas subsequently forced the Atkinses to perform various sexual acts at gun point. During their attempt to comply, Douglas fired the rifle into the air. After forcing the Atkinses to engage in sexual intercourse, Douglas stated to Jay, "did you enjoy it you son-of-a-bitch?" He then hit Jay so forcefully in the head with the rifle that the stock shattered. Then he told Helen to get back, and shot Jay in the head, killing him.

Douglas argues that murder is not heinous, atrocious, or cruel where death is instantaneous. There are, however, other circumstances to consider in determining the appropriateness of this aggravating factor. We have found that this factor is applicable "where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies--the conscienceless or pitiless crime which is unnecessarily torturous to the victim," Herzog v. State, 439 So.2d 1372, 1380 (Fla.1983) (citation omitted), or where the victim agonizes over his impending death. See Knight v. State, 338 So.2d 201 (Fla.1976). Under the circumstances of this case, the court did not err in finding that this murder was especially heinous, atrocious, or cruel.

Douglas argues that the aggravating factor of "cold, calculated, and premeditated" cannot be applied retroactively to this crime which occurred prior to the addition of this factor to section 921.141, and further, that it is not supported by the facts of the instant case. We have previously rejected the first of these arguments. See Justus v. State, 438 So.2d 358 (Fla.1983), cert. denied, 465 U.S. 1052, 104 S.Ct. 1332, 79 L.Ed.2d 726 (1984); Combs v. State, 403 So.2d 418 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982). We agree, however, that the trial court erred in finding this factor applicable.

As we stated in Jent v. State, 408 So.2d 1024, 1032 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982), modified, Preston v. State, 444 So.2d 939 (Fla.1984), "[t]he level of premeditation needed to convict in the [guilt] phase of a first-degree murder trial does not necessarily rise to the level of premeditation in subsection (5)(i)." Section 921.141(5)(i) limits the use of premeditation to those cases where the state proves beyond a reasonable doubt that the premeditation was "cold, calculated ... and without any pretense of moral or legal justification." Jent; Combs. This aggravating factor normally, although not exclusively, applies to execution-style or contract murders. McCray v. State, 416 So.2d 804 (Fla.1982). The passion evidenced in this case, the relationship between the parties, and the circumstances leading up to the murder negate the trial court's finding that this murder was committed in a "cold, calculated, and premeditated manner without any pretense of moral or legal justification." ¹

The resentencing court found two nonstatutory mitigating circumstances: (1) In the view of the witnesses who testified, Douglas was not a violent person; and (2) Douglas has had a satisfactory institutional record while on death row. Even though the jury did not have the benefit of this evidence in arriving at its unanimous recommendation of life imprisonment, there was guilt phase evidence which the jury could have reasonably found to be mitigating. The state's primary witness was the wife of the victim. The credibility of her testimony concerning the circumstances surrounding this murder could have reasonably influenced the jury's recommendation. Further, we have held that a prior domestic relationship may be considered a nonstatutory mitigating circumstance. See Herzog.

A trial court may not impose the death penalty over a jury's recommendation of life imprisonment unless the facts suggesting death are so clear and convincing that no reasonable person could differ. Tedder v. State, 322 So.2d 908 (Fla.1975). Considering the presence of only one aggravating factor, the additional mitigating evidence introduced on resentencing, and the totality of the circumstances of the case, we find that the imposition of the death penalty over the jury's recommendation of life imprisonment does not comply with the standard enunciated in Tedder, and is not proportionately warranted in this case. See Ross v. State, 474 So.2d 1170 (Fla.1985); Blair v. State, 406 So.2d 1103 (Fla.1981). Accordingly, we vacate the sentence of death and remand to the trial court with directions to impose a sentence of life imprisonment without eligibility for parole for twenty-five years.

It is so ordered.

SHAW, C.J., and OVERTON, McDONALD and BARKETT, JJ., concur.

EHRLICH, Senior Justice, dissents with an opinion.

GRIMES and KOGAN, JJ., did not participate in this case.

EHRLICH, Senior Justice, dissenting.

This is the third appearance of this case before this Court. Douglas v. State, 328 So.2d 18 (Fla.), cert. denied, 429 U.S. 871, 97 S.Ct. 185, 50 L.Ed.2d 151 (1976); Douglas v. State, 373 So.2d 895 (Fla.1979).

The original trial judge found that the crime was heinous, atrocious, or cruel and found no mitigating factors and imposed the sentence of death, overriding a jury recommendation of life imprisonment. In the course of approving the judgment of guilt and sentence on direct appeal, this Court said:

The method by which the victim and his wife were taken to the location by a complicated route where the killing occurred reflects a determination to kill. Even getting the vehicle stuck and having to get help to have it freed did not break that determination. The evidence is clear that the murder was committed in a cold and calculated manner.

Douglas v. State, 328 So.2d at 22 (emphasis added).

Subsequently, the United States Circuit Court of Appeal for the Eleventh Circuit in Douglas v. Wainwright, 714 F.2d 1532, 1558 (11th Cir.1983), vacated, 468 U.S 1212, 104 S.Ct. 3580, 82 L.Ed.2d 879, reinstated, 739 F.2d 531 (11th Cir.1984), cert. denied, 469 U.S. 1208, 105 S.Ct. 1170, 84 L.Ed.2d 321 (1985), ruled that defendant's trial counsel was ineffective during the penalty phase. As a result, a resentencing proceeding before a new trial judge, without a jury, was held and Douglas was permitted to introduce mitigating evidence.

Seven family members testified at the sentencing proceeding that prior to his incarceration in 1973, Douglas was known to be nonviolent and nonassaultive. According to his daughter, who had visited and conferred with him while he was incarcerated, there was no indication that he had become a violent or...