Griffin v. State, 62819

• Decision Date: 02 May 1985
• Docket Number: No. 62819,62819
• Citation: 10 Fla. L. Weekly 264,474 So.2d 777
• Parties: 10 Fla. L. Weekly 264 Frank GRIFFIN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 777

474 So.2d 777

10 Fla. L. Weekly 264

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

No. 62819.

Supreme Court of Florida.

May 2, 1985.

Rehearing Denied Sept. 17, 1985.

Melvin S. Black, Miami, for appellant.

Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., Miami, for appellee.

EHRLICH, Justice.

Frank Griffin was convicted and sentenced for armed robbery and first degree murder. Because he was sentenced to death, we have jurisdiction on this first appeal. Art. V, § 3(b)(1), Fla. Const. We affirm the judgment of the trial court.

The clerk at a Miami U-Tote-M convenience store was shot twice and killed during a robbery in the early morning hours of April 2, 1981. Six weeks later the driver of the getaway car implicated Griffin and another man, Stokes, in a statement to police. May 19, 1981, detectives went to the Dade County jail, where Griffin was awaiting trial on unrelated charges. Griffin was taken from the jail after protesting his removal, driven by the convenience store, then taken to the police station where the interrogation continued. Griffin denied involvement and was returned to jail.

Griffin was indicted March 5, 1982, almost a year after the crime. Trial was delayed. In September 1982, shortly before trial, the circuit court granted Griffin's motion to suppress a statement made during the May 19, 1981, interrogation on the ground that he had not knowingly and voluntarily waived his Miranda rights. The court denied a speedy trial motion to discharge based on the argument that Griffin had been arrested for the robbery and murder when he was interrogated in 1981.

Stokes testified against Griffin at trial as part of a plea agreement. His testimony was consistent with, and thus buttressed by, evidence that Griffin's fingerprint was found on the cash-register counter at the scene, and testimony from two citizens who had witnessed events immediately before and after the crime.

Griffin did not take the stand during either phase of the trial, nor did he present any evidence during the guilt phase. The jury found him guilty of first degree murder and armed robbery. They unanimously recommended death, and the judge concurred, finding five aggravating and no mitigating factors. She sentenced Griffin to death for the murder and a consecutive life sentence for the armed robbery.

Griffin moved for a new trial, based on statements by two prisoners that Stokes told them he and Griffin had not held up the store, but that he was going to give false testimony at the trial and had been coached on the testimony. The judge denied the motion. Griffin appealed to this Court.

I. SPEEDY TRIAL

Griffin claims that the trial court erred when it refused to discharge him for failure to bring him to trial within the speedy trial time. Fla.R.Crim.P. 3.191. The motion for discharge was grounded on Griffin's claim that he was arrested for the crime during his first interrogation by police May 19, 1981. The trial judge found the circumstances of that interrogation sufficiently A seizure may trigger fourth amendment protection and yet not be a technical arrest. Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). And a person may be "in custody" for purposes of Miranda requirements but not for purposes of the speedy trial rule. State v. Robbins, 359 So.2d 39 (Fla. 2d DCA 1978). In Florida a person is "in custody" for speedy trial purposes when he is "arrested as a result of the conduct or criminal episode which gave rise to the crime charged." Rule 3.191(a)(4). Griffin was not arrested in 1981 based on the definition of a technical arrest set out in Melton v. State, 75 So.2d 291 (Fla.1954). See also State v. Breedlove, 400 So.2d 468 (Fla. 4th DCA), review denied, 402 So.2d 608 (Fla.1981).

coercive that she suppressed a statement made during the "interview." ¹

Griffin also claims a speedy trial violation assuming arrest in 1982. However, the basis for his motion for discharge was grounded solely on the theory that arrest occurred in 1981 and this issue is not preserved for appeal.

II. JURY INSTRUCTIONS--GUILT PHASE

Griffin argues that the trial judge erred when she omitted three sentences from the standard jury instructions on first degree murder. ² He specifically claims fundamental error in the omission of a sentence instructing that premeditated intent to kill must be formed before the killing. While it is certainly best to include this sentence, we find no error here. Every sentence of the paragraph defining premeditation inherently instructs that the intent must arise at some indeterminate time before the killing. Likewise, the two introductory sentences which were omitted merely state there are two ways to convict for first degree murder. Since the information conveyed in the introduction is patently obvious from the remainder of the instructions, which were given, the instruction was inessential in this case. Defense counsel failed to object at trial, and the omission does not constitute fundamental error. State v. Bryan, 287 So.2d 73, 75 (Fla.1973), cert. denied, 417 U.S. 912, 94 S.Ct. 2611, 41 L.Ed.2d 216 (1974): "What is important is that sufficient instructions--not necessarily academically perfect ones--be given as adequate guidance to enable a jury to arrive at a verdict based upon the law as applied to the evidence before them."

III. SEPARATE CONVICTIONS AND SENTENCES FOR MURDER AND ROBBERY

The indictment for first degree murder alleged premeditated and felony murder The record shows that Griffin's accomplice, Stokes, was in the store when the shooting occurred. Stokes testified that he did not see the shots fired. He had turned his back to leave the store moments before the first shot, turned and saw the clerk falling, then turned again to leave when he heard the second shot. There is no indication in the record that the clerk precipitated an accidental or reflexive shooting which would support a felony murder theory.

in the alternative. The jury verdict form did not specify on which theory the jury based its finding of guilt. Griffin argues that the conviction rests on the felony murder theory. However, we find that there was sufficient evidence for the jury to have concluded that the murder was premeditated and that the separate conviction and sentence for the robbery were therefore proper.

We have held that:

Premeditation can be shown by circumstantial evidence. Premeditation is a fully-formed conscious purpose to kill, which exists in the mind of the perpetrator for a sufficient length of time to permit of reflection, and in pursuance of which an act of killing ensues. Premeditation does not have to be contemplated for any particular period of time before the act, and may occur a moment before the act. Evidence from which premeditation may be inferred includes such matters as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed and the nature and manner of the wounds inflicted. It must exist for such time before the homicide as will enable the accused to be conscious of the nature of the deed he is about to commit and the probable result to flow from it insofar as the life of his victim is concerned.

Sireci v. State, 399 So.2d 964, 967 (Fla.1981) (citations deleted), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982). We find that Griffin used a particularly lethal gun, a 9mm automatic with jacketed bullets having a high penetrating ability; that there was an absence of provocation on the part of the victim (Stokes testified he heard and saw nothing unusual prior to the first shot, and the victim in fact cooperated with the robbery, taking off and giving to Stokes a gold neck chain Stokes had been unable to pull off); and that the wounds, one lethal, the other less serious, were inflicted at close range and thus unlikely to have struck the victim unintentionally. This is sufficient to support a finding of premeditation. Cf. Menendez v. State, 419 So.2d 312 (Fla.1982) (presumption of felony murder when there was no witness to see or hear the actual shooting in a store robbery, thus no evidence of provocation or lack thereof by the victim). Because the murder verdict is supportable on a premeditated murder theory, the robbery conviction and sentence are proper. Squires v. State, 450 So.2d 208 (Fla.1984); Teffeteller v. State, 439 So.2d 840 (Fla.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 754 (1984).

IV. AGGRAVATING AND MITIGATING CIRCUMSTANCES Aggravating Factors

Griffin challenges all five of the aggravating factors found by the trial judge.

1. Prior conviction for felony involving the use of violence. § 921.141(b)(b), Fla.Stat. (1981).

The judge noted two convictions in evidence, the armed robbery conviction of the present case, and a 1977 conviction for resisting arrest with violence to a police officer. Griffin argues that the use of the armed robbery conviction is improper and that the resisting arrest conviction is alone insufficient to support the aggravating factor. A contemporaneous conviction may properly be considered in the penalty phase. Hardwick v. State, 461 So.2d 79 (Fla.1984). However, just as murder during commission of a robbery, an aggravating circumstance under section 921.141(5)(d), cannot be doubled to support the aggravating circumstance of murder for pecuniary gain under section 921.141(5)(f) This leaves one prior conviction in support of factor (5)(b). Griffin argues that we found a prior conviction for resisting arrest with violence to be insufficient to support a death sentence in Swan v. State, 322 So.2d 485 (Fla.1975). However, in that case the trial judge specifically declined to consider the prior conviction as a basis for imposing the death penalty. We reversed the sentence on the ground that the record failed to show sufficient aggravating circumstances.

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