Ferguson v. State, 55137

• Citation: 417 So.2d 639
• Decision Date: 15 July 1982
• Docket Number: No. 55137,55137
• Parties: John Errol FERGUSON, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 639

417 So.2d 639

John Errol FERGUSON, Appellant, v. STATE of Florida, Appellee.

No. 55137.

Supreme Court of Florida.

July 15, 1982.

Michael S. Hacker of Hacker, Phelps & Matters, Miami, for appellant.

Jim Smith, Atty. Gen., and Margarita Esquiroz and Calvin L. Fox, Asst. Attys. Gen., Miami, for appellee.

ADKINS, Justice.

This is a direct appeal from an order adjudging the appellant guilty of six counts of murder in the first degree, two counts of attempted murder in the first degree, and three counts of robbery with a firearm, and imposing sentences of death and imprisonment. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

On July 27, 1977, at approximately 8:15 p. m. the defendant, posing as an employee of the power company, requested permission from Margaret Wooden to enter her Carol City home and check the electrical outlets. After gaining entry and checking several rooms, the defendant drew a gun and tied and blindfolded Miss Wooden. He then let two men into the house who joined the defendant in searching for drugs and money.

Some two hours later, the owner of the house, Livingston Stocker, and five friends returned home. The defendant, who identified himself to Miss Wooden as "Lucky," and his cohorts tied, blindfolded and searched the six men. All seven victims were then moved from the living room to the northeast bedroom.

Shortly thereafter, Miss Wooden's boyfriend, Miller, entered the house. He too was bound and searched. Then he and Miss Wooden were moved to her bedroom and the other six victims returned to the living room.

At some point one intruder's mask fell, revealing his face to the others. Miller and Wooden were kneeling on the floor with their upper bodies lying across the bed. Wooden heard shots from the living room then saw a pillow coming toward her head. She was shot. She saw Miller get shot then heard the defendant run out of the room. She managed to get out and run to a neighbor's house to call the police.

When the police arrived they found six dead bodies. All had been shot in the back of the head, their hands tied behind their backs. One of the victims, Johnnie Hall, had survived a shotgun blast to the back of his head. He testified to the methodical execution of the other men.

On September 15, 1977, the defendant and three co-defendants were indicted for the offense. Adolphus Archie, the "wheelman", was allowed to plead guilty to second degree murder and a twenty-year concurrent sentence on all counts in exchange for testimony at trial. He testified he'd dropped the defendant, Marvin Francois, and Beauford White in the Carol City area to "rip off" a drug house. He didn't see the actual shooting but later saw unfamiliar weapons and jewelry in Beauford's and Francois' possession.

The defendant was tried alone and convicted on all counts. After an advisory sentencing hearing the jury recommended death. The judge followed that recommendation.

Four issues are raised on appeal. One is patently without merit. The death penalty in Florida as prescribed in section 921.141, Florida Statutes (1977), has been upheld repeatedly against arguments that it constitutes cruel and unusual punishment or violates the constitutional guaranties of equal protection and due process. See Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 918 (1976); Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978).

A second issue raised by defendant was that the trial court had failed to provide written findings in support of the sentence of death. § 921.141(3), Fla.Stat. (1977). Inasmuch as the supplemental record includes the trial judge's written findings this issue is now moot.

The third issue involves the following allegedly improper comment by the prosecution in closing argument: "[N]ot only did [defense counsel] ask you to find a scapegoat for Mr. Ferguson's guilt, he puts the blame on someone else who has already been found guilty, Marvin Francois." A victim had identified Francois as an accomplice and the wheelman also implicated Francois. The defendant thus argues that the above comment said to the jury, if Francois is guilty then, ipso facto, defendant must be guilty.

There are several reasons we decline to find reversible error in this comment. First, the only objection made to the comment was a general one, followed by a motion for a mistrial. It is well settled that objections must be made with sufficient specificity to apprise the trial court of the potential error and to preserve the point for appellate review. Castor v. State, 365 So.2d 701 (Fla.1978); Clark v. State, 363 So.2d 331 (Fla.1978). The desirability and need for specified grounds also apply to motions for mistrials. A mistrial is a device used to halt the proceedings when the error is so prejudicial and fundamental that the expenditure of further time and expense would be wasteful if not futile. Johnsen v. State, 332 So.2d 69 (Fla.1976). Even if the comment is objectionable on some obvious ground, the proper procedure is to request an instruction from the court that the jury disregard the remarks. A motion for mistrial is addressed to the sound discretion of the trial judge and "the power to declare a mistrial and discharge the jury should be exercised with great care and should be done only in cases of absolute necessity." Salvatore v. State of Florida, 366 So.2d 745, 750 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (citations omitted). Even if the general objection and request for a mistrial properly preserved this point for appellate review, we find that the trial judge correctly denied the motion. The comment was made on rebuttal in response to the theory presented by the defense during its closing argument that Francois and White had committed the crime and the defendant had never even been in the house, but had been misidentified by the victims. The prosecutor's comment fell within the bounds of a "fair reply" which is permissible in this instance. See Brown v. State, 367 So.2d 616 (Fla.1979). Viewed in this context, the comment on Francois' guilt was not sufficiently prejudicial to warrant a mistrial in this case. Cf. Thomas v. State, 202 So.2d 883 (Fla. 3d DCA 1967) (prosecutor told jury of accomplice's conviction during voir dire and again during trial); and Moore v. State, 186 So.2d 56 (Fla. 3d DCA 1966) (judge announced co-defendant's guilty plea to jury as explanation for recess during trial). The fact that a jury hears of an accomplice's guilt does not necessarily constitute reversible error. See, e.g., Sanders v. State, 241 So.2d 430 (Fla. 3d DCA 1970); Walters v. State, 217 So.2d 615 (Fla. 2d DCA 1969); Vitiello v. State, 167 So.2d 629 (Fla. 3d DCA 1964); Grisette v. State, 152 So.2d 498 (Fla. 1st DCA 1963).

Defendant's final point on appeal concerns the testimony of Adolphus Archie, the "wheelman" who was allowed to plead to second degree murder for testifying. On direct examination Archie stated that the defendant knew Joe Swain (the person who allegedly orchestrated the killings) because "the first time ... my first time in prison, all three of us was together." A general objection was overruled and a motion for mistrial denied. Initially, we reiterate our emphasis on the importance of stating specific grounds for objections and motions for mistrials. Also, especially in an instance such as this, a curative instruction should be requested. The defendant now contends that a prior imprisonment was irrelevant to his guilt or innocence in this case; the only result would be to show the defendant's "bad character." Such remarks may be erroneously admitted yet not be so prejudicial as to require reversal. Darden v. State, 329 So.2d 287 (Fla.1976), cert. denied, 429 U.S. 1036, 97 S.Ct. 729, 50 L.Ed.2d 747 (1977); Thomas v. State, 326 So.2d 413 (Fla.1975). In Smith v. State, 365 So.2d 405 (Fla. 3d DCA 1978), the court noted that any prejudice arising from the admission of testimony indicating defendant's prior incarceration could have been corrected by an instruction to the jury to disregard the testimony. The court held that in the absence of a defense request for such an instruction, the trial court properly denied the motion for a mistrial. Our review of this record persuades us that the admission of Archie's testimony in this matter was not so prejudicial as to warrant a reversal. See Clark v. State, 363 So.2d 331 (Fla.1978).

The defendant in this case has not specifically attacked the sufficiency of the evidence supporting the conviction. It is nonetheless our duty to review the entire record. Tibbs v. State, 337 So.2d 788 (Fla.1978). It is abundantly clear that the evidence was sufficient and we therefore uphold the conviction.

We have also conducted an independent review of the sentencing proceedings and trial court's findings in aggravation and mitigation. Harvard v. State, 375 So.2d 833 (Fla.1977). That court found:

In support of this determination, the Court makes the following Findings of Fact relative to aggravating circumstances, consistent with Section 921.141(5) Florida Statutes.

(a) The crime for which the defendant was sentenced was committed while the defendant was under sentence of imprisonment. He had been convicted in The Circuit Court of the Eleventh Judicial Circuit in Case No. 76-4822, On September 16, 1976, of resisting an officer with violence and had been sentenced to The State Penitentiary for eighteen months to be followed by two years of probation. The sentence in the 76-4822 case had not been terminated and the case was still open. By stipulation the evidence in the subject case was adopted in the Probation Violation case and the probation was revoked by this Court on May 25, 1978.

(b) At the time of the crime for which this defendant was sentenced he had previously been convicted of three felonies involving the use or threat of violence to some person;

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