Gibson v. State

• Decision Date: 28 July 1977
• Docket Number: No. 48698,48698
• Citation: 351 So.2d 948
• Parties: Richard Henry GIBSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 948

351 So.2d 948

Richard Henry GIBSON, Appellant, v. STATE of Florida, Appellee.

No. 48698.

Supreme Court of Florida.

July 28, 1977.

Rehearing Denied Dec. 5, 1977.

Louis G. Carres, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Jeanne Dawes Schwartz, Asst. Atty. Gen., for appellee.

PER CURIAM.

Appellant, Richard Henry Gibson, was charged by indictment with the premeditated murder of Antonio Chumbo. ¹ The jury found appellant guilty as charged and recommended that he be sentenced to death. The trial court so ordered. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution. After careful review of the entire record, we affirm the judgment and the sentence.

The facts are as follows: On the evening of May 9, 1975, Antonio Chumbo and Pedro DeMedeiros, two Brazilian seamen whose ship, the Itapua, was docked in Jacksonville, Florida, left their ship to go into the city. During the course of the evening, they had several beers at various bars in town. While they were in one of the bars, their activities were observed by appellant and his companion, Thomas Lee Calvin, and together they conceived a plan to "roll" the sailors. To aid them in their plan, they enlisted the assistance of Delores Walker. Appellant explained to Miss Walker what she was to do and where she was to take the two men. Walker then enlisted the assistance of another young woman, Wanda Payton. Miss Payton was apparently unaware of the planned robbery.

Later that evening, the two women struck up an acquaintance with the sailors and invited them to their house to spend the night. On the morning of May 10, 1975, shortly after midnight, Chumbo and DeMedeiros got into a car with Gibson, Payton, and Walker. After they had traveled a short distance, Walker, who was driving, turned down a dark street and stopped the car. Gibson directed the two men to get out of the car and to hand over their money. As Chumbo got out of the car, offering his money and begging not to be shot, Gibson shot him twice in the head. DeMedeiros was also shot but was not fatally wounded.

Appellant does not challenge his conviction. ² All assignments of error are directed to the sentencing portion of the trial.

The sentencing proceeding in this case consisted solely of arguments of counsel. No evidence was presented. As it appears in the record, appellant's counsel's remarks to the jury were very brief:

MR. DEMPSEY: May it please the Court.

Ladies and gentlemen, I am going to assure you that I do not believe I will be here five minutes. I do not think that, in the light of three days that we have been here, it takes a great deal to be said, at this time.

I do want to comment on several things that Mr. Austin has said. He read you what purports to be some statements out of some transcripts. One, supposedly, made by Mr. DeMedeiros and one made by Wanda Payton.

I call your attention to the fact that Mr. DeMedeiros cannot speak English; I think the testimony was that Mr. Chumbo could barely speak English so if Mr. Chumbo was speaking English, I suggest to you Mr. DeMedeiros wouldn't know what he was saying.

Then, Wanda Payton testified to you she couldn't understand either one of them. Based on what you have heard in this case up until this point in time, I do not think it is necessary to pursue this thing. I think you have heard the facts; we can stand up here and argue until we are purple in the face.

Mr. Austin indicated how can you stop this behavior in the community. Ladies and gentlemen, I will submit to you that you won't stop this kind of behavior in the community by convicting one and letting two go.

I have nothing further, Your Honor.

Based on these remarks, appellant argues that he received ineffective assistance of counsel at the advisory portion of the trial. Appellant specifically points to counsel's failure to offer facts in mitigation.

This point is raised for the first time on appeal and was not previously ruled upon by the court below. In State v. Barber, 301 So.2d 7 (Fla.1974), we held that the issue of adequacy of representation by counsel cannot properly be raised at this time. Except where the error is fundamental, an appellate court must confine itself to a review of those questions which were before the trial court and upon which a ruling adverse to the appealing party was made. Ashford v. State, 274 So.2d 517 (Fla.1973); Silver v. State, 188 So.2d 300 (Fla.1966). In any event, the alleged incompetence must be such that the trial was reduced to a mockery or a sham. Parker v. State, 295 So.2d 312 (Fla. 1st DCA 1974); McCrae v. State, 313 So.2d 429 (Fla. 3d DCA 1975); Biggs v. United States, 318 F.Supp. 212 (N.D.Fla.1970). There is nothing in the record to support such a finding by this court. It is probable that appellant's counsel offered nothing in mitigation because there was nothing to offer. This is substantiated by the findings of the trial judge. Having had the additional benefit of a presentence investigation report, she determined that there were no mitigating circumstances. Counsel is not required to manufacture facts or arguments where none exist.

We reject appellant's contention that Section 921.141, Florida Statutes (1975), is unconstitutional on the basis of State v. Dixon, 283 So.2d 1 (Fla.1973).

We also reject the argument that appellant was denied fundamental due process of law when:

(a) The prosecutor was permitted to argue to the jury that they should recommend the death penalty as a deterrent to crime;

(b) The prosecutor was permitted to argue to the jury that the testimony was overwhelming and uncontradicted that appellant "pulled the trigger"; and

(c) The prosecutor was allowed opening and closing arguments to the jury in the sentencing portion of the trial.

The comments of the prosecutor regarding the deterrent effect of the death penalty, read in context, were not so prejudicial as to require a new trial. ³ Darden v. State, 329 So.2d 287 (Fla.1976). Furthermore, appellant is precluded from asserting this argument since he failed to object to the allegedly improper prosecutorial comments at trial. Songer v. State, 322 So.2d 481 (Fla.1975); State v. Jones, 204 So.2d 515 (Fla.1967); Tillman v. State, 44 So.2d 644 (Fla.1950).

The comments referred to in point (b) ⁴ had a basis in the record and were therefore proper. Songer v. State, supra; Wade v. Wainwright, 266 So.2d 378 (Fla. 4th DCA 1972); Roundtree v. State, 229 So.2d 281 (Fla. 1st DCA 1969).

As to point (c), appellant's counsel not only failed to object to the procedure but acquiesced in it after full discussion with the prosecutor and the bench.

A more serious question is raised by appellant's contention that the trial judge improperly weighed the aggravating and mitigating circumstances in arriving at a sentence. Three circumstances were listed in aggravation: ⁵

1. The murder was committed during the commission of an armed robbery. Section 921.141(5)(d), Florida Statutes (1975).

2. The murder was committed for pecuniary gain. Section 921.141(5)(f), Florida Statutes (1975).

3. The murder was especially heinous, atrocious, and cruel. Section 921.141(5)(h), Florida Statutes (1975).

There were no mitigating circumstances. ⁶ Appellant argues that the trial judge improperly combined numbers (1) and (2). Robbery, by its very nature, includes a motive of pecuniary gain. Thus, in all robbery murders, these two factors will be identical.

We agree and have so held in Provence v. State, 337 So.2d 783 (Fla.1976). In Elledge v. State, 346 So.2d 998, 1003, opinion filed April 7, 1977, this court stated: "We must guard against any unauthorized aggravating factor going into the equation which might tip the scales of the weighing process in favor of death." However, where there are no mitigating circumstances, as in the case here, there is no danger that an unauthorized aggravating factor has served to overcome the mitigating circumstances in the weighing process dictated by our statute. Therefore, although the trial judge improperly combined the two aggravating factors, the aggravating factors which remain are sufficient to justify the sentence of death imposed below.

Accordingly, the judgment and sentence are affirmed.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, SUNDBERG, HATCHETT and KARL, JJ., concur.

ENGLAND, J., concurs in part and dissents in part with an opinion.

ENGLAND, Justice, concurring in part, dissenting in part.

I agree with my colleagues that Gibson's conviction should be affirmed. I dissent from that portion of the opinion affirming the sentence, on the ground that, Gibson did not have adequate assistance of counsel in the advisory proceeding.

1 The second count of the indictment charged appellant with robbery.

2 It is our responsibility, however, to review the entire record to determine whether reversible error was committed. We find no such error.

3 Now, ladies and gentlemen, I have been the heavy, I took the voir dire we call it when we ask you what the questions and what your opinion was and you said you didn't have any strong convictions against the death penalty and I am up here now asking you to sentence a man to death and I don't like to feel I don't feel real good in the pit of my stomach right now. My knees don't feel real strong right now because I don't like it, I detest it, but I took an oath and we are a nation of laws and we are sworn to follow that law.

I don't want to murder Gibson, I never saw him before a week ago. I don't know a thing about him. I really don't want to hurt him.

Ladies and gentlemen of the jury, the law of the Florida Legislature for a reason says that if you kill under these circumstances, when you are robbing, and you do it under these circumstances where there is aggravation, that you should die and I think they did it and I believe they did it and I think I am justified in asking here that you recommend to this Judge that she put them in the electric...