Farr v. State, 77925

• Decision Date: 24 June 1993
• Docket Number: No. 77925,77925
• Parties: 18 Fla. L. Week. S380 Victor Marcus FARR, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1368

621 So.2d 1368

18 Fla. L. Week. S380

Victor Marcus FARR, Appellant, v. STATE of Florida, Appellee.

No. 77925.

Supreme Court of Florida.

June 24, 1993.

Rehearing Denied Aug. 23, 1993.

Nancy A. Daniels, Public Defender and W.C. McLain, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Victor Marcus Farr appeals the sentence of death imposed after his conviction of first-degree murder. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const.

In December 1990, Farr attempted to kidnap and then shot and wounded two women outside a Lake City bar. He attempted to escape by forcibly taking a car in which a man and woman were sitting. The man fled, but Farr managed to crank the car and escape with the woman still inside. When he was pursued by officers later, Farr deliberately accelerated the car into a tree, hoping to kill himself and his hostage. The woman was severely injured in the crash and died of her injuries soon thereafter. Farr was only slightly injured.

After indictment, Farr entered into an agreement with the State in which he pled guilty to all twelve counts of the indictment. As part of the agreement, Farr requested that the state attorney ask for the death penalty. He explained that he wanted to die. After determining that Farr was capable of knowingly and voluntarily entering the plea and that he understood its consequences, the trial court accepted the guilty plea. Farr then knowingly and voluntarily waived his right to a penalty phase jury, and the cause proceeded to sentencing.

At the time of sentencing the record contained a psychiatric report and presentence investigation report containing information about Farr's troubled childhood, numerous suicide attempts, the murder of his mother, psychological disorders resulting in hospitalization, sexual abuse suffered as a child, and his chronic alcoholism and drug abuse, among other matters. In imposing the death penalty, the court apparently was influenced by Farr's decision not to present a case in mitigation. The judge considered in mitigation only Farr's apparent intoxication at the time of the murder, which the court found not to be of mitigating value ¹ and ignored the mitigating evidence contained in the presentence report and the psychiatric report.

In aggravation the trial court found that: (1) Farr had previously been convicted of another capital felony or of a felony involving the threat of violence to the person; (2) the homicide was committed while Farr was fleeing from the commission of a kidnapping, a robbery, two attempted kidnappings, and an attempted robbery; (3) the homicide was committed to disrupt or hinder the lawful exercise of a governmental function or the enforcement of laws; ² and (4) the homicide was especially heinous, atrocious, or cruel. Based on these findings, the trial court imposed the death sentence.

On appeal Farr raises three issues. First, Farr argues that our decision in Hamblen v. State, 527 So.2d 800 (Fla.1988), is inconsistent with our decision in Klokoc v. State, 589 So.2d 219 (Fla.1991), and that to cure this inconsistency we should recede from Hamblen. We disagree. We have rejected a similar argument elsewhere. E.g., Durocher v. State, 604 So.2d 810 (Fla.1992).

Second, Farr argues that the trial court was required to consider any evidence of mitigation in the record, including the psychiatric evaluation and presentence investigation. Our law is plain that such a requirement in fact exists. We repeatedly have stated that mitigating evidence must be considered and weighed when contained anywhere in the record, to the extent it is believable and uncontroverted. E.g., Santos v. State, 591 So.2d 160 (Fla.1991); Campbell v. State, 571 So.2d 415 (Fla.1990); Rogers v. State, 511 So.2d 526 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988). That requirement applies with no less force when a defendant argues in favor of the death penalty, and even if the defendant asks the court not to consider mitigating evidence.

As to the third issue, we agree with the trial court's conclusions respecting aggravating circumstances. The four factors cited by the trial court clearly were established beyond a reasonable doubt. However, because the trial court failed to consider all of the available mitigating evidence, the death sentence imposed by the trial court is vacated. On remand, the trial court shall conduct a new penalty phase hearing in which it weighs all available mitigating evidence against the aggravating factors. In this respect, we call to the trial court's attention our holdings in Santos, Campbell, and Rogers. The court then shall determine the proper penalty in accordance with Florida law. In all other respects we affirm the trial court, including the determination of guilt and judgments of conviction.

It is so ordered.

OVERTON, SHAW and KOGAN, JJ., concur.

HARDING, J., concurs with an opinion.

BARKETT, C.J., concurs specially with an opinion.

GRIMES, J., concurs in part and dissents in part with an opinion, in which McDONALD, J., concurs.

HARDING, Justice, concurring.

The issue regarding the trial court's consideration of mitigating circumstances against the defendant's wishes is perplexing and one with which this Court has struggled in the past. In Hamblen v. State, 527 So.2d 800, 802 (Fla.1988), we identified the issue by saying, "The first issue involves the friction between an individual's right to control his destiny and society's duty to see that executions do not become a vehicle by which a person could commit suicide." In deciding Hamblen the court held that it was not error for the trial court not to appoint counsel against the defendant's wishes to seek out and present mitigating evidence and argue against the death penalty. In doing so we acknowledged:

In the field of criminal law, there is no doubt that "death is different," but, in the final analysis, all competent defendants have a right to control their own destinies. This does not mean that courts of this state can administer the death penalty by default. The rights, responsibilities and procedures set forth in our constitution and statutes have not been suspended simply because the accused invites the possibility of a death sentence. A defendant cannot be executed unless his guilt and the propriety of his sentence have been established according to law.

Id. at 804.

In determining that the propriety of the defendant's sentence has been established according to law, we stated in Pettit v. State, 591 So.2d 618, 620 (Fla.1992), "that the trial judge must carefully analyze the possible statutory and nonstatutory mitigating factors against the aggravators to assure that death is appropriate." (Emphasis added.)

Here, the record reflects that the trial judge was aware that the psychiatrist's report contained unrefuted evidence of nonstatutory mitigation. There was discussion that specific mitigating factors were found by the doctor in his report. ³ Although the doctor's report here was admitted into evidence solely for the purpose of supporting the competency of the defendant, the trial judge acknowledged his obligation to review all mitigation under Hitchcock. ⁴ In a dialogue with the trial judge, the defendant stated he had no objection to the judge's reviewing the doctor's report. The trial judge asked for guidance from both counsel for the state and the defendant in regard to his considering the mitigating evidence contained in the...