Elam v. State, 80039

• Decision Date: 07 April 1994
• Docket Number: No. 80039,80039
• Citation: 636 So.2d 1312
• Parties: 19 Fla. L. Weekly S175 David Mueller ELAM, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1312

636 So.2d 1312

19 Fla. L. Weekly S175

David Mueller ELAM, Appellant, v. STATE of Florida, Appellee.

No. 80039.

Supreme Court of Florida.

April 7, 1994.

Rehearings Denied June 6, 1994.

James B. Gibson, Public Defender and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen. and Sara D. Baggett, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon David Mueller Elam. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const. We affirm the conviction, vacate the sentence, and remand for imposition of a life sentence.

Elam was hired by the victim, Carl Beard, to manage Beard's motorcycle parts store. When Beard confronted Elam on December 17, 1991, concerning misappropriated funds, an altercation broke out. Elam struck Beard with his fist, knocking him to the floor, then picked up a brick and struck him several times on the head, killing him. While incarcerated on the murder charge, Elam attempted to hire an undercover agent to kill two witnesses. He ultimately pled guilty to first-degree murder and two counts of solicitation to commit murder. The State originally agreed to a plea bargain of life imprisonment on the murder charge, but subsequently sought the death penalty when Elam insisted he wanted to be executed. Elam waived his right to a penalty phase jury and declined to attend the penalty proceeding. He also did not want his lawyer to attend, but later gave him permission to participate in a limited fashion: "Your Honor, all I want to do is get this over with. If it's quicker for him to say something, let him say something. Just let me go [from the courtroom] so we can get it over with, please." The defense presented testimony of the victim's brother and of an acquaintance, and Elam himself made a statement to the court.

The judge sentenced Elam to two thirty-year terms on the solicitation counts, and provided that the terms are to run concurrently with each other and consecutively to the sentence on the murder count. The judge imposed the death penalty on the murder count, finding four aggravating circumstances ¹ and one nonstatutory mitigating circumstance. ² Elam filed the present appeal seeking to have his pleas withdrawn or alternatively his death sentence vacated and the case remanded for a new penalty phase proceeding or imposition of a life sentence. He raises eleven issues. ³

Elam first claims that his guilty plea was illegally entered for several reasons: It was entered to stop harassment of his family by the State; it was conditioned on receipt of the death penalty; and there was an insufficient factual basis for it. We find that Elam entered a voluntary, knowing and intelligent plea. Only later, at the conclusion of the sentencing proceeding, did he show any vacillation (i.e., that he would like to condition his plea on his obtaining the death penalty, and that the plea was entered to protect his loved ones). These later statements, however, are equivocal at best, and appear to be made more for dramatic effect than anything else. Elam entered a valid plea and never clearly attempted to withdraw it. Even had he attempted to do so, it still would be within the discretion of the court to determine whether good cause existed. See Baker v. State, 408 So.2d 686, 687 (Fla. 2d DCA 1982) ("A defendant who deliberately pleads guilty to a criminal charge should not be allowed to withdraw his plea merely because he changes his mind" at a particular point in the proceeding.). Here, the record is devoid of proof of good cause for withdrawal. We find no error.

After the trial court accepted Elam's guilty plea and he waived a penalty phase jury, he sought to discharge his lawyer. When the trial court questioned him, Elam changed his mind and said that he himself would leave the courtroom during the proceeding but that his lawyer could stay but not say or do anything. Immediately prior to trial, Elam again changed his mind and said, "If it's quicker for him [the lawyer] to say something, let him say something. Just let me go [from the courtroom] so we can get it over with, please." In light of this last minute change in plan, the lawyer moved for a continuance to investigate mitigating evidence. The court denied the request based on Elam's representation that counsel was not to put on mitigation. After the State rested its case, counsel said that he would call as witnesses two persons who happened to be in the courtroom and asked to proffer other mitigation that he would have presented if allowed more time to investigate. The court denied the motion, and Elam contends this was error. ⁴

Elam claims that the denial of the motion to proffer violates Koon v. Dugger, 619 So.2d 246 (Fla.1993). There, the defendant claimed on collateral review that trial counsel was ineffective for failing to put on mitigating evidence. We found no merit to Koon's claim in light of the fact that he himself had prohibited counsel from presenting mitigation. To facilitate appellate review in such cases, however, we established the following procedure:

Although we find no error occurred here, we are concerned with the problems inherent in a trial record that does not adequately reflect a defendant's waiver of his right to present any mitigating evidence. Accordingly, we establish the following prospective rule to be applied in such a situation. When a defendant, against his counsel's advice, refuses to permit the presentation of mitigating evidence in the penalty phase, counsel must inform the court on the record of the defendant's decision. Counsel must indicate whether, based on his investigation, he reasonably believes there to be mitigating evidence that could be presented and what that evidence would be. The court should then require the defendant to confirm on the record that his counsel has discussed these matters with him, and despite counsel's recommendation, he wishes to waive presentation of penalty phase evidence.

Id. at 250. Our ruling in Koon by its own terms is prospective only and can offer Elam no relief. See also Durocher v. State, 604 So.2d 810 (Fla.1992) (no relief on same issue). We find no error.

Elam claims that the trial court erred in finding aggravating circumstances applicable here. We agree. We find the aggravating circumstance that the murder was especially heinous, atrocious, or cruel inapplicable. Although the defendant was bludgeoned and had defensive wounds, the medical examiner testified that the attack took place in a very short period of time ("could have been less than a minute, maybe even half a minute"), the defendant was unconscious at the end of this period, and never regained consciousness. There was no prolonged suffering or anticipation of death.

The court also erred in finding that the murder was committed to avoid arrest. The record contains virtually no competent evidence showing the presence of this aggravating circumstance, but rather indicates that the murder took place as the result of a spontaneous fight that erupted when Beard confronted Elam concerning misappropriated funds. Similarly, the record contains insufficient evidence to support the aggravating factor that the murder was committed for pecuniary gain. Although the fight erupted over the missing funds, the theft had long been completed and the murder was not committed to facilitate it. See Simmons v. State, 419 So.2d 316, 318 (Fla.1982) (There must be "a pecuniary motivation for the murder itself."). And finally, we disagree with the court...