Ferrell v. State, 81668

• Citation: 653 So.2d 367
• Decision Date: 16 February 1995
• Docket Number: No. 81668,81668
• Parties: 20 Fla. L. Weekly S74 Jack Dempsey FERRELL, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 367

653 So.2d 367

20 Fla. L. Weekly S74

Jack Dempsey FERRELL, Appellant, v. STATE of Florida, Appellee.

No. 81668.

Supreme Court of Florida.

Feb. 16, 1995.

Rehearing Denied April 26, 1995.

James B. Gibson, Public Defender and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., and Dan Haun and Kenneth S. Nunnelley, Asst. Attys. Gen., Daytona Beach, for appellee.

PER CURIAM.

Jack Dempsey Ferrell appeals his conviction and sentence of death for the first-degree murder of Ms. Mary Esther Williams. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const. We affirm the conviction and remand for a new sentencing order.

Ferrell and Williams were live-in lovers whose relationship was marked by verbal and physical confrontations. On April 18, 1992, neighbors overheard the couple arguing and observed Ferrell enter and exit the couple's apartment several times. Upon his final exit and before driving away in his car, Ferrell approached one of the neighbors and stated, "You better call the police, I just killed my old lady upstairs." Williams was found lying on the apartment floor, having suffered two gun shots to the head. She died ten days later due to brain injury associated with hemorrhaging. When Ferrell was arrested he smelled of alcohol and possessed the gun that was subsequently identified as the murder weapon. At trial, Ferrell testified that the gun accidentally fired when Williams pushed him. This was refuted by the State's expert who testified that accidental firing of the gun was unlikely.

During the trial proceedings, evidence of a collateral crime was admitted when Ferrell's neighbor testified that approximately one week before the murder Ferrell told her that he had "killed one bitch and he will do it again" and "that if he went back to prison he's sure he wouldn't be coming back this time." The mental health expert opined that Ferrell has an IQ of eighty and suffers from brain and frontal lobe damage. The expert also opined that Ferrell's drinking contributed to his mental incapabilities. The jury found Ferrell guilty of first-degree murder and by a vote of ten to two recommended a sentence of death. Judge Daniel P. Dawson accepted the jury's recommendation and sentenced Ferrell to die. In appealing his conviction and sentence Ferrell asserts that the trial court: (1) improperly allowed evidence of the collateral crime; (2) erred in denying his motion to appoint co-counsel; (3) erred in denying his penalty phase requested jury instructions; (4) erred in imposing a death sentence without making, in writing, the requisite findings of fact; and (5) improperly imposed a death sentence based on one aggravating circumstance and approximately seven mitigating circumstances. For the reasons detailed below, we disagree with Ferrell's assertions in issues one, two, and three; agree with issue four; and decline to address the merits of issue five pending our receipt of a new sentencing order.

Ferrell's first issue asserts that the trial court violated Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), as codified in section 90.404(2)(a), Florida Statutes (1992), when it allowed into evidence testimony concerning the collateral crime. ¹ In allowing the testimony, the trial court ruled that Williams was not applicable, and that the testimony was relevant, not unduly prejudicial, and admissible to show premeditation or proof of guilt as to the crime charged. Pursuant to its ruling, the court instructed the jury as follows:

THE COURT: Ladies and gentlemen, I'm going to instruct you that the witness' testimony as to statements made by the defendant are offered to show premeditation or proof of guilt as to the crime charged, and you are to limit your consideration of these statements to those two issues.

We find that the court's ruling comports with the hearsay exception found in section 90.803(3), Florida Statutes (1991), which allows into evidence:

(a) A statement of the declarant's then existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to:

....

2. Prove or explain acts of subsequent conduct of the declarant.

Accordingly, we find no error in the trial court's ruling.

Ferrell's second claim is two-fold. The first part of this claim--that he was denied effective assistance of counsel and due process when the trial court refused defense counsel's request that co-counsel be appointed--is without merit based on our recent decision in Armstrong v. State, 642 So.2d 730 (Fla.1994). In that case, we explained that "[a]ppointment of multiple counsel to represent an indigent defendant is within the discretion of the trial court judge and is based on a determination of the complexity of a given case and the attorney's effectiveness therein." Id. at 737. Ferrell's attorney admitted during the motion hearing that his case was not complicated. ² Clearly, there was no abuse of discretion here. We also decline Ferrell's invitation to adopt a rule that would require the appointment of two attorneys in all capital cases. The standard set forth in Armstrong adequately protects the rights of defendants in capital cases.

Ferrell further asserts that the trial court erred when it denied his request for special jury instructions since the standard instruction failed to: (1) direct the jury that the death penalty is reserved for the most aggravated and least mitigated of all first-degree murders; (2) inform the jury to individually consider the evidence presented in mitigation regardless of the views of fellow jurors; (3) adequately define mitigating circumstances and how they should be considered; and (4) specify the non-statutory mitigating circumstances. However, as Ferrell's brief concedes, there is no "requirement in Florida law for the trial court to give the special requested instructions." See also Walls v. State, 641 So.2d 381, 389 (Fla.1994) (the validity of the standard jury instruction on mitigating circumstances has been repeatedly upheld in this Court and the federal courts); Waterhouse v. State, 596 So.2d 1008, 1017 (Fla.), cert. denied, --- U.S. ----, 113 S.Ct. 418, 121 L.Ed.2d 341 (1992) (Florida law does not require that the jury be instructed to make an individual determination as to the existence of any mitigating circumstance); Robinson v. State, 574 So.2d 108, 111 (Fla.), cert. denied, 502 U.S. 841, 112 S.Ct. 131, 116 L.Ed.2d 99 (1991) (the trial court need not instruct the jury on specific non-statutory mitigating circumstances); Lara v. State, 464 So.2d 1173, 1179 (Fla.1985) (the standard jury instruction properly explains aggravating and mitigating circumstances). Based on the cited cases, we find no error in the trial court's ruling.

Issue four asserts that the sentencing order's failure to document the requisite findings of fact for mitigating and aggravating circumstances as required by section 921.141(3), Florida Statutes (Supp.1992), denies this Court the opportunity to meaningfully review and evaluate the lower court's sentence of death and thus, entitles Ferrell to a life sentence under this Court's decision in Bouie v. State, 559 So.2d 1113 (Fla.1990). ³ We find this case distinguishable from Bouie since ...