Fleming v. State, 50005

Decision Date14 June 1979
Docket NumberNo. 50005,50005
Citation374 So.2d 954
PartiesMyron David FLEMING, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Jack O. Johnson, Public Defender, and James R. Wulchak, Thomas A. Pobjecky, Paul J. Martin and Steven H. Denman, Asst. Public Defenders, Bartow, for appellant.

Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

This is a direct appeal from a conviction of murder in the first degree and a sentence of death imposed by the Circuit Court of Lee County. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution. We affirm in part and reverse in part.

On March 13, 1976, appellant, armed with a .45 caliber semiautomatic pistol, entered the Purolator Security Building in Ft. Myers, Florida, with intent to commit a robbery. Yorkcavage, appellant's companion, entered the building ahead of appellant by forcing Mr. Johnson, a Purolator employee, to unlock the door, turn off the alarms, and open the company safe. Johnson's eyeglasses, keys, and billfold were taken. Mr. Williams, another Purolator employee, observed activity in the building and notified the police. When a patrol car arrived, appellant suggested that they "make a run for it," taking Johnson as a hostage. As they started out the door, Williams called to the men to surrender, but they ignored his request and proceeded towards the getaway car. A gun battle ensued in which Yorkcavage and Johnson were hit. Yorkcavage later died from these injuries. Once inside the automobile, appellant fired his pistol through the windshield, wounding Officer Moore. At this point, Johnson grabbed the guns of both his captors. While the three men wrestled for control of the weapons, Lieutenant Spurlin of the Ft. Myers Police Department and Deputy Yahl of the Lee County Sheriff's Office, rushed the vehicle and succeeded in opening one of the doors. During the struggle, appellant's gun discharged, striking Lieutenant Spurlin and Deputy Yahl. Deputy Yahl was mortally wounded.

Appellant was charged in an eight count indictment: (I) first degree murder of Deputy Yahl, section 782.04(1)(a), Florida Statutes; (II) second degree murder of Yorkcavage, section 782.04(3), Florida Statutes; (III) first degree robbery of Johnson, section 812.13(2)(a), Florida Statutes; (IV) attempted robbery of Purolator Security, section 777.04(1), Florida Statutes; (V) kidnapping of Johnson, section 787.01, Florida Statutes; (VI) attempted first degree murder of Spurlin, section 777.04(1), Florida Statutes; (VII) attempted first degree murder of Moore, section 777.04(1), Florida Statutes; and (VIII) possession of a weapon in the commission of a criminal offense, section 790.07(2), Florida Statutes.

Appellant pleaded guilty to the murder of Yahl, attempted robbery of Purolator Security, and the attempted first degree murders of Spurlin and Moore. In accordance with the plea agreement, the state dismissed the remaining counts of the indictment.

Appellant argues that the trial court erred in accepting his guilty plea to Count VI, attempted first degree murder of Lieutenant Spurlin. It is his contention that there was no factual basis to support the plea since Lieutenant Spurlin was shot accidentally. We disagree.

An "attempt" consists of two essential elements: (1) a specific intent to commit the crime, and (2) a separate overt, ineffectual act done towards its commission. Hutchinson v. State, 315 So.2d 546 (Fla. 2d DCA 1975); Groneau v. State, 201 So.2d 599 (Fla. 4th DCA 1967); Robinson v. State, 263 So.2d 595 (Fla. 3d DCA 1972). Regarding the first element, the Fourth District Court stated in Groneau The accused must have intended to accomplish the particular crime which is the basis of the charge against him. He cannot be convicted of an attempt to commit a crime which he did not intend to commit. The particular intent is essential to constitute the crime. (Groneau v. State, supra, at 602.)

Accordingly, the offense of attempted first degree murder requires a premeditated design to effect death. In cases where the alleged "attempt" occurs during the commission of a felony, however, the law presumes the existence of premeditation, just as it does under the felony murder rule. Adams v. State, 341 So.2d 765 (Fla.1976); Knight v. State, 338 So.2d 201 (Fla.1976). 1 Because the appellant was engaged in the commission of a felony when Lt. Spurlin was shot, the accidental nature of the shooting is irrelevant. We find no error.

Following the entry of appellant's plea, a jury was impaneled. The jury recommended to the trial court that a sentence of death be imposed. See section 921.141(1), Florida Statutes. Appellant argues that the trial court committed reversible error in the selection of the advisory jury by excusing for cause two jurors who expressed opposition to the death penalty. The record clearly shows that these jurors expressed more than mere opposition. Both exhibited an irrevocable commitment to vote against death regardless of the facts presented or the instructions given by the court. The judge's actions were therefore proper. 2 Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

Appellant next argues that the state must demonstrate a compelling governmental interest in imposing a sentence of death. He also urges reconsideration of our decision in Alvord v. State, 322 So.2d 533 (Fla.1975), asserting that a recommendation of death by a simple majority is unconstitutional. We reject both contentions on the basis of Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

A more serious question is raised by appellant's contention that the trial judge improperly considered subsections (d) and (f) of section 921.141(5), Florida Statutes (1975), as two separate aggravating circumstances for purposes of arriving at a sentence. 3 Citing Provence v. State, 337 So.2d 783 (Fla.1976), he argues that robbery by its very nature contains a motive of pecuniary gain as outlined in subsection (f) and should not be weighed as a separate aggravating circumstance from subsection (d):

The capital felony was committed while the defendant was engaged . . . in the commission of . . . robbery . . ..

In Hargrave v. State, 366 So.2d 1, 5 (Fla.1978), we addressed this identical issue and held:

. . . Although Provence v. State, 337 So.2d 783 (Fla.1976), condemns the doubling up of the aggravating circumstances of pecuniary gain each time a crime such as robbery is concerned, the mere recitation of both circumstances does not in all cases call for a condemnation of the sentencing hearing and judgment. As State v. Dixon, supra, teaches us, the statute does not comprehend a mere tabulation of aggravating versus mitigating circumstances to arrive at a net sum. It requires a weighing of those circumstances. Absent the circumstance of pecuniary gain, there were ample other statutory aggravating circumstances to place on the scale to weigh against the valid mitigating circumstances.

In this case, the trial judge found the existence of five aggravating circumstances:

(1) The defendant knowingly created a great risk of death to many persons. (Section 921.141(5)(c).)

(2) The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, rape, arson, burglary, kidnapping, or aircraft piracy or the unlawful throwing, placing, or discharging of a destructive device or bomb. (Section 921.141(5)(d).)

(3) The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. (Section 921.141(5)(e).)

(4) The capital felony was committed for pecuniary gain. (Section 921.141(5) (f).)

(4) The capital felony was especially heinous, atrocious, or cruel. (Section 921.141(5)(h).)

Only one mitigating factor was established: no significant history of prior criminal activity. (Section 921.141(6)(a).) Absent the factor of pecuniary gain, there remain ample statutory aggravating factors to outweigh the one in mitigation.

Appellant next contends that the trial court erred in designating the crime as especially heinous, atrocious, and cruel, arguing that the killing of Deputy Yahl was no more shocking than the "majority of murder cases reviewed by this Court." Halliwell v. State, 323 So.2d 557, 561 (Fla.1975). We agree. In State v. Dixon, 283 So.2d 1, 9 (Fla.1973), this court stated It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where The actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies the conscienceless or pitiless crime which is necessarily torturous to the victim. (Emphasis added.)

This case is not unlike Cooper v. State, 336 So.2d 1133 (Fla.1976), wherein the victim was killed by two gunshots to the head. While affirming the death sentence, the court reversed the trial court's finding that the murder was especially heinous, atrocious, and cruel, reasoning that the victim "was killed instantaneously and painlessly, without additional facts which made the killing 'heinous' within the statutorily-announced 'aggravating' circumstance." (At 1141.)

The evidence in this case shows that the murder was committed by a single shot, fired when the hostage grabbed appellant's gun. As human beings, we are appalled by such senseless killings. As judges, however, we must unemotionally apply the law to the facts. We therefore hold that the trial court erred in finding the murder in this case "especially heinous,...

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