Ferguson v. State, 55498

CourtUnited States State Supreme Court of Florida
Citation417 So.2d 631
Docket NumberNo. 55498,55498
PartiesJohn Errol FERGUSON, Appellant, v. The STATE of Florida, Appellee.
Decision Date15 July 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.

Appellant, John Errol Ferguson, was found guilty on two counts of first-degree murder, one count of involuntary sexual battery, one count of robbery, one count of attempted robbery, one count of unlawful possession of a firearm while engaged in a criminal offense, and one count of possession of a firearm by a convicted felon. He now appeals his convictions on the above and the resulting sentences of death and imprisonment. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

Brian Glenfeld and Belinda Worley were last seen leaving a Youth for Christ meeting around 9:00 p. m. on Sunday, January 8, 1978. The two seventeen-year-olds were supposed to meet friends at an ice cream parlor. The next morning their bodies were discovered in a wooded area by two passersby.

Brian's body was behind the wheel of the car. He'd been shot in the chest and arm. A bullet to the head had killed him. Belinda's body was several hundred yards away in a dense growth. All she had on were her jeans; her other clothes were next to her body. She'd been shot in the back of the head. An autopsy indicated she'd been raped.

Brian's father testified that Belinda was wearing two rings, a gold bracelet and a pair of earrings when she and Brian left on Sunday evening. None of the jewelry was found with the bodies. Belinda's earlobe was torn where an earring had been taken. Brian's empty wallet was found in Belinda's purse near her body. His father had seen both the wallet and some cash in Brian's possession the previous evening.

On April 5, 1978, the defendant was arrested at his apartment pursuant to a warrant for unlawful flight to avoid prosecution; he was under indictment for another multiple-murder, the so-called Carol City murders. The defendant was read his Miranda rights each time he was questioned. He signed a consent to search form and allowed the officers to search the apartment. His roommate, Virginia Polk, also consented to the search. After the search, which produced probable evidence in another robbery, the defendant confessed to killing the "two kids." At the time of his arrest he had in his possession a .357 magnum capable of firing .38 caliber bullets like those which killed Brian and Belinda.

The gun was registered to Livingston Stocker, a victim of the Carol City murders. Margaret Wooden, a survivor of that incident, testified that the defendant had been in Stocker's Carol City house on July 27, 1977, the night he was murdered.

The defendant was convicted on two counts of first degree murder. The jury recommended the death penalty and the judge concurred in imposing the death sentence.

We reject the constitutional challenges to the death penalty. It is neither cruel and unusual punishment, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), nor a violation of due process or equal protection. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 918 (1976).

The trial court denied defendant's pre-trial motions to suppress statements made on April 5, 1978, the day of his arrest. Evidence at the suppression hearing showed that defendant was represented by counsel as of about 3:00 p. m. the day he was taken into custody. Defendant's attorney visited his client and claimed that he advised the officers involved that he didn't want anyone talking to his client unless he was present. This was contradicted by the state's evidence and the trial court found that such communication did not take place. The defendant was questioned at least twice after this and admitted the crimes without his attorney being present.

The trial judge in the case before us specifically found that the defendant knowingly and voluntarily waived his Fifth Amendment right. Witt v. State, 342 So.2d 497 (Fla.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977). The waiver is effective even though the defendant is represented by counsel and the officers are aware of that fact. United States v. Brown, 569 F.2d 236 (5th Cir. 1978); United States v. Vasquez, 476 F.2d 730 (5th Cir. 1973). The defendant in this case was questioned by three different officers investigating three separate incidents. Each time he was approached, the defendant was advised of his rights and clearly consented to talking without an attorney. When he finally did ask to speak with his lawyer, all questions ceased. Michigan v. Moseley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). The statements were properly admitted into evidence.

The trial court also admitted physical evidence taken from defendant's apartment on the day of his arrest. The detective who searched the apartment did so after obtaining consent from a woman who had been living with the defendant. The test for a valid third-party consent to a warrantless search is whether the third party has joint control of the premises. United States v. Matlock, 415 U.S. 164, 98 S.Ct. 218, 54 L.Ed.2d 152 (1974); Silva v. State, 344 So.2d 559 (Fla.1977). In this instance the entire living space, including closets, of the one-bedroom apartment had been shared by the defendant with the third party. At the suppression hearing there was conflicting evidence as to whether the woman had ceased to reside in the apartment a few days earlier. The trial court resolved this question against the defendant, finding that the third party had joint access and control at the time she gave permission. There is nothing in the record to overcome the presumption of correctness with which that finding reaches this Court. State v. Nova, 361 So.2d 411 (Fla.1978).

Having found a valid third-party consent, we need not reach the validity of the defendant's consent in signing a consent to search form. The evidence obtained at the apartment was not taken in violation of defendant's constitutional rights.

Yet another pre-trial motion was denied by the trial court; this alleged that the defendant was insane at the time of the offense and incompetent to stand trial at all times thereafter. The Florida standard for sanity at the time of the offense is the ability to distinguish right and wrong. Witt v. State; Wheeler v. State, 344 So.2d 244 (Fla.1977), cert. denied, 440 U.S. 924 (1979). The test for competency to stand trial is whether a defendant has sufficient present ability to consult with and aid his attorney in the preparation of a defense with a reasonable degree of understanding. Although the medical evidence was conflicting, there was adequate testimony to support the trial judge's finding that defendant was competent to stand trial. Byrd v State, 297 So.2d 22 (Fla.1974); Fowler v. State, 255 So.2d 513 (Fla.1971), later appeal, 263 So.2d 202 (Fla.1972). Defendant's sanity at the time of the offense was a factual issue determined adversely to him by the jury's verdict. The evidence is sufficient to sustain this finding by the jury.

During the trial, Margaret Wooden was allowed to testify over defendant's objection that the defendant had been present at the scene of the Carol City murders. The trial court properly denied the defense motion for a mistrial since this evidence tended to establish the defendant's identity as perpetrator of the crime. Dean v. State, 277 So.2d 13 (Fla.1973); Ashley v. State, 265 So.2d 685 (Fla.1972); Williams v. State, 110 So.2d 654 (Fla.1959). One of the crucial pieces of evidence in this case was the .357 magnum revolver found in defendant's possession upon his arrest. Since nearly four months had elapsed between the date of the crime and the date of arrest, the point at which defendant obtained possession of the weapon was obviously important to the state's case. Another witness testified he'd been present in Stocker's house on July 27, 1977, when a similar .357 magnum was taken from the bedroom. Margaret Wooden was the only person who could place the defendant in Stocker's house on that date, some five and one-half months prior to the day the two teenagers were killed. Review of the testimony shows that both the court and the prosecutor made every effort to avoid prejudicing the defendant by referring to the Carol City homicides. The record supports the admission of the evidence as relevant to identity.

The defendant also contends that the prosecutor improperly commented in closing argument on the defendant's failure to testify:

[S]o there is a lot of reasons why that glitter was on that blue shirt and you'll also remember John Ferguson said, excuse me, Virginia Polk said that John Ferguson washed the clothes....

Taken in context, the prosecutor obviously said the defendant's name when he meant to say Virginia Polk. He immediately corrected the error. This is not an example of resort to improper methods to obtain convictions as suggested by the defendant. Rolle v. State, 268 So.2d 541 (Fla. 3d DCA 1972). The trial court acted within its discretion in denying the defendant's motion for mistrial. Johnsen v. State, 332 So.2d 69 (Fla.1976).

At the close of the state's case the defendant moved for a judgment of acquittal on the two counts of robbery. The court denied the motions and the jury found defendant guilty of robbery of Brian and attempted robbery of Belinda. In circumstantial evidence cases the evidence must not only be consistent with guilt but also be inconsistent with any reasonable hypothesis of innocence. Davis v. State, 90 So.2d 629 (Fla.1956). The crux of the matter is that all the state could show was that the victims had valuables on their persons before they were killed and that the jewelry was missing when the bodies were discovered. The defense argues that since the bodies were in the wooded area overnight, anyone passing by could...

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