Griffin v. State, 56903

• Decision Date: 08 April 1982
• Docket Number: No. 56903,56903
• Citation: 414 So.2d 1025
• Court: Florida Supreme Court
• Parties: Kenneth GRIFFIN, Appellant, v. STATE of Florida, Appellee.

Page 1025

414 So.2d 1025

Kenneth GRIFFIN, Appellant, v. STATE of Florida, Appellee.

No. 56903.

Supreme Court of Florida.

April 8, 1982.

Rehearing Denied June 28, 1982.

Leonard E. Ireland, Jr. of Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd, Gainesville, for appellant.

Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

This cause is before the Court on appeal from a judgment of the Circuit Court of the Eighth Judicial Circuit in Bradford County. Appellant was convicted on two counts of first-degree murder and was sentenced to death. This Court has jurisdiction of his appeal. Art. V, § 3(b)(1), Fla.Const.

The appellant was convicted of killing two young men during the course of a robbery of a convenience store on the night of September 10, 1975. The indictment was filed on September 11, 1978. Glen Lundgren, who worked at the store on U.S. 301 near Starke, was discovered lying on the floor behind the counter by some late-night customers; he was bleeding from a gunshot wound to the back of his head. Lundgren was taken to Shands Hospital in Gainesville where he died shortly after arrival.

The other victim was Keith Kirchaine, age sixteen, whose body was discovered the following day by the side of a road about three and one-half miles from the store. He was shot at least three times. There was testimony to establish that Kirchaine was visiting with Lundgren at the store when the robbery occurred.

The managers of the store, Thomas and Ernestine Gnagi, were called to the scene that night. Mrs. Gnagi examined the cash register tapes and determined that money had been taken. Mr. Gnagi determined that a pistol he kept at the store was missing. It was a black, .22 caliber revolver which Mr. Gnagi said was loaded when he left it at the store.

Willie James Bryant testified that he drove the appellant and Robert Hinson from Gainesville to Starke on the night of the robbery and murders. They went to the convenience store, Bryant said, and the appellant and Hinson went in. Then Bryant heard a shot. Hinson came out holding a brown paper bag. The appellant came out holding a gun in one hand and young Keith Kirchaine by the other. At appellant's direction, Bryant drove the car down a road until appellant said to stop. Kirchaine pleaded not to be hurt; appellant struck him in the face. Finally, Bryant said, appellant dragged the boy off into the woods and shot him.

Alex Henry testified that in September, 1975, he was appellant Griffin's friend and neighbor. On the morning of September 11, Henry heard the news of the robbery and murder on the radio. That afternoon, Henry said, Griffin came to him and said that he and Willie James Bryant had robbed the store in Starke and that he, Griffin, had shot the two victims. Griffin showed Henry a long, dark-colored .22 caliber revolver. Henry testified that the gun Griffin displayed to him looked like the drawing that depicted Thomas Gnagi's missing gun.

After the presentation of evidence, the court instructed the jury. The judge instructed the jury on felony murder, but neglected to instruct on the elements of the crime of robbery. After the jury retired to deliberate, the judge asked counsel for both sides whether they had any objections or requests for additional instructions. Neither party objected to the failure to instruct on the elements of the underlying felony of robbery.

After several hours of deliberation, the jury sent the trial judge a note which asked, "Judge, if a murder is committed during a robbery, is that automatically first-degree murder?" After consulting counsel for both sides, the judge decided that the best response to this inquiry would be to re-instruct the jury on felony murder, and then did so.

Within a few minutes of re-reading the instruction on felony murder, the judge realized that he had neglected from the beginning to instruct the jury on the underlying felony of robbery. Over defense counsel's objection the court, pursuant to Florida Rule of Criminal Procedure 3.420, recalled the jury to the courtroom and gave the previously omitted instruction. Then the jury again withdrew to deliberate.

Appellant's counsel moved for a mistrial arguing that since the elements of the crime of robbery were not considered by the jury during its first few hours of deliberation, the later instruction on robbery placed undue emphasis on the charge of felony murder. Defense counsel also presented the testimony of the sheriff who said that the bailiff told him that prior to the instruction on the elements of robbery, the jury had indicated that they had reached a verdict. Defense counsel asked the court to question the jurors and determine whether they had reached a decision prior to being again recalled and instructed on robbery. The court denied both motions. Then the jury returned with a verdict of guilt on both charges of first-degree murder.

The appellant raises several questions regarding the propriety of the jury instructions. First, he argues that the court erred in twice instructing on felony murder without including the elements of the underlying felony of robbery. He cites State v. Jones, 377 So.2d 1163 (Fla.1979), and Robles v. State, 188 So.2d 789 (Fla.1966), which hold that in a felony murder case, there must be an instruction on the underlying felony. The present case is distinguishable because here the omission was inadvertent and when the judge discovered his mistake, he immediately acted to correct it. Florida Rule of Criminal Procedure 3.420 provides that the court may recall the jury to the courtroom to correct an erroneous instruction. This authority encompasses the giving of additional instructions that were inadvertently omitted.

Appellant also argues that the court erred when it re-instructed on felony murder without also re-instructing on premeditated murder. Although repeated instructions must be complete, they are matters within the discretion of the trial judge. Here the re-instruction on felony murder was in response to a specific question from the jury. It was complete in itself even though the judge did not repeat all of his instructions. Under these circumstances, the court's action was not an abuse of discretion. See Henry v. State, 359 So.2d 864 (Fla.1978).

Next appellant contends that the instruction on the elements of robbery was incomplete in that it was not accompanied by an instruction on the presumption of innocence and because it unduly emphasized the felony-murder feature of the instructions and evidence. At the trial, appellant did not ask for repetition of the instruction on the presumption of innocence so that argument will not be considered now. Castor v. State, 365 So.2d 701 (Fla.1978); Williams v. State, 285 So.2d 13 (Fla.1973); Fla.R.Crim.P. 3.390(d). As in Castor, the jury had already once been fully instructed on the matter in question. Moreover, the court told the jury to consider the additional instruction (on the felony of robbery) along with all the instructions previously given. Appellant's "undue emphasis" argument is without merit. The judge recalled the jury to instruct on robbery as soon as he became aware of the inadvertent omission. That the instruction was given four hours after the jury began deliberating is insufficient without more to show that the instruction placed an undue emphasis on the felony murder theory. See Weirum v. RKO General, Inc., 123 Cal.Rptr. 468, 539 P.2d 36, 15 Cal.3d 40 (1975) (giving previously omitted instruction on third day of deliberations was proper).

Appellant's final argument concerning jury instructions is that the court erred in not instructing on second-degree felony murder. However, appellant did not request such an instruction, nor did he object to its omission. Therefore the issue is not properly presented to us and we will not consider it. Dorminey v. State, 314 So.2d 134 (Fla.1975); Williams v....