Fitzpatrick v. State, 60097

• Decision Date: 21 July 1983
• Docket Number: No. 60097,60097
• Citation: 437 So.2d 1072
• Parties: Ernest FITZPATRICK, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1072

437 So.2d 1072

Ernest FITZPATRICK, Jr., Appellant, v. STATE of Florida, Appellee.

No. 60097.

Supreme Court of Florida.

July 21, 1983.

Rehearing Denied Oct. 13, 1983.

P. Douglas Brinkmeyer, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.

Jim Smith, Atty. Gen. and Miguel A. Olivella, Jr. and Gregory C. Smith, Asst. Attys. Gen., Tallahassee, for appellee.

PER CURIAM.

Appellant Ernest Fitzpatrick was convicted of first-degree murder, two counts of attempted first-degree murder, and three counts of kidnapping. The trial judge imposed a death sentence for the crime of first-degree murder, concurrent sentences of life imprisonment for each attempted murder, and concurrent sentences of thirty years imprisonment for each of the kidnapping offenses. We have jurisdiction to review this case under article V, section 3(b)(1), of the Florida Constitution. We affirm the convictions, the separate kidnapping sentences, and the sentence of death.

On April 29, 1980, appellant entered a realty office with a .38 caliber revolver taped to his hand. He accosted a secretary named Mary Blake and told her he wanted to use her as a shield and take her to a bank located a block away. When she resisted and screamed, he threatened to shoot her in the leg. He took her down a hallway toward the back of the building and rounded a corner. A delivery boy, Eric Shaw, entered the front door and walked down the same hallway, looking for someone to sign a receipt. When he turned the corner appellant pointed the revolver at him and told him not to run or else he would shoot him. Holding Blake around the waist and alternately pointing the pistol at her and at Shaw, appellant forced his two hostages back down the hallway in order to lock the front door. Shaw went to the front door but could not lock it because he did not have a key. He then re-joined appellant and Blake in the hallway.

Meanwhile, David Parks, who was in a nearby office when appellant entered the building, called the sheriff. Emerging from his office and trying to keep his voice as calm as possible, Parks asked Mary Blake what was wrong and if he could help her. Appellant pointed the gun at Parks and told him not to come any closer. Parks offered appellant the keys to his car and some money. Appellant refused, saying he wanted Blake to go with him. Appellant then marched his three hostages into the main office adjoining the reception area. Appellant sat on a desk chair next to the window in a partition between the main office and the reception area and forced Blake to sit on his lap. He told Shaw to lock the office door and ordered him and Parks to sit down at opposite walls. Appellant said that he would have to shoot the police when they arrived and then shoot his hostages and himself.

Within ten minutes of Parks' phone call, two sheriff's deputies arrived and entered through the front door. The senior one, Deputy Smith, saw Shaw through the open partition and motioned to him to be quiet. Deputy Smith crept down the hallway and tried turning the handle to the office door. Upon finding it was locked he bumped the door a couple of times and announced that he was from the sheriff's department. He heard several voices shout and shots fired. One bullet passed through the wall near his head.

At about the time Deputy Smith stopped knocking, Deputy Heist pointed his gun through the partition and ordered appellant to freeze. Appellant swung around in the chair and shot Deputy Heist in the head, killing him. Shaw unlocked the office door and ran out while Parks jumped appellant, attempting to wrestle the gun away from him. As they fell to the floor struggling, Mary Blake escaped from the office. Appellant fired more shots, hitting Parks in the head. Then he pushed Parks away, stood up, and tried to fire his gun again, but the revolver was empty. Deputy Smith, who had entered the office, fired two shots, hitting appellant in the shoulder.

Appellant was charged with and convicted of the first-degree murder of Deputy Heist, the attempted first-degree murders of Deputy Smith and David Parks, and the kidnappings of Parks, Mary Blake, and Eric Shaw. In accordance with the jury's recommendation the trial judge imposed a sentence of death.

As his first point on appeal appellant argues that he was denied a fair trial in violation of the sixth amendment to the United States Constitution when the trial court refused to excuse four veniremen for cause and refused to grant him additional peremptory challenges. He claims that he was forced to use four of his ten peremptory challenges to excuse veniremen who were biased in favor of the death penalty. During voir dire two of the veniremen stated that the death sentence was appropriate for anyone who committed murder, a third felt death was appropriate if there were eyewitnesses to the murder, and the fourth felt that the death sentence should be imposed anytime a police officer is shot in the line of duty. These statements were made in response to defense counsel's questioning the prospective jurors about their general feelings concerning the death penalty. When the prosecuting attorney explained that under Florida law the death penalty is not automatic under any situation and asked if they would be able to follow the court's instructions and weigh the aggravating circumstances against the mitigating circumstances in making their recommendation, they all said they could.

This case is unlike Thomas v. State, 403 So.2d 371 (Fla.1981), where we reversed a defendant's conviction because the trial judge refused to excuse for cause a venireman who conceded that he could not recommend any kind of mercy under any circumstances if the defendant were found guilty of murder. In this case none of the four veniremen ever indicated that he was unalterably opposed to recommending life sentences for convicted murderers. Their statements only indicated a tendency toward being in favor of the death penalty. "A man who opposes the death penalty, no less than the one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror." Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S.Ct. 1770, 1775, 20 L.Ed.2d 776 (1968) (emphasis added). Witherspoon requires that veniremen who oppose the death penalty be excused for cause only when irrevocably committed before the trial to voting against the death penalty under any circumstances or where their views on capital punishment would interfere with finding the accused guilty. We find that the same standard should be applied when excusing for cause a venireman who is in favor of the death penalty. A judge need not excuse such a person unless he or she is irrevocably committed to voting for the death penalty if the defendant is found guilty of murder and is therefore unable to follow the judge's instructions to weigh the aggravating circumstances against the mitigating circumstances.

Appellant's argument that he had an insufficient number of peremptory challenges is premised on the assumption that he unnecessarily used four of them to excuse the above-mentioned veniremen. At oral argument appellant's counsel conceded that there is nothing in the record to show that if appellant had been given more he would have used them. Since we find that the trial judge did not abuse his discretion in declining to excuse for cause the four veniremen, there is no basis for holding that appellant had an insufficient number of peremptory challenges. We therefore hold that appellant's right to a fair trial by an impartial jury under the sixth amendment was not violated.

Appellant's next point on appeal is that the court erred in entering judgments and sentences for the three counts of kidnapping. Appellant argues that Florida's kidnapping statute does not apply where the victim is moved an insignificant distance in a short period of time. See Friend v. State, 385 So.2d 696 (Fla. 1st DCA 1980); Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980). He contends that the emerging trend is to narrowly construe kidnapping statutes so that they do not apply where the kidnapping is inherent in or "merely incidental" to the commission of another crime. See, e.g., People v. Daniels, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225 (1969); State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976); People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973); People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842, cert. denied, 381 U.S. 938, 85 S.Ct. 1770, 14 L.Ed.2d 701 (1965); State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979).

We recently analyzed these and other cases and concluded that "the 'merely incidental' rule does not apply in situations where the purpose in confining or moving another person is to use that person as a hostage." Mobley v. State, 409 So.2d 1031, 1036 (Fla.1982) (footnote omitted). In Mobley we affirmed the kidnapping convictions of three prisoners who held two guards and an attorney as hostages during an attempted escape. We noted that although the prisoners "were not charged with confining the victims with the intent of using them as hostages, evidence that they did use them as hostages is relevant and sufficient proof that the kidnappings were not incidental to the attempted escape." Id. at 1037. Unlike in Mobley, appellant in this case was charged under that portion of the statute that defines kidnapping as the unlawful confining of another person against his will with the intent of holding him as a shield or hostage. See § 787.01(1)(a)1, Fla.Stat. (1979). Since there is sufficient evidence to show that appellant confined the victims against their will with the intent to use them as shields or hostages, he committed a kidnapping regardless of the distance the victims were moved or the time they were held. Furthermore the kidnappings in this case were not "merely incidental" to the commission of another crime. See Faison...