Hunter v. State

Decision Date01 June 1995
Docket NumberNo. 82312,82312
Citation660 So.2d 244
Parties20 Fla. L. Weekly S251 James Eugene HUNTER, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

James B. Gibson, Public Defender and George D.E. Burden, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen. and Kenneth S. Nunnelley, Asst. Atty. Gen., Daytona Beach, for appellee.


James Eugene Hunter appeals his convictions and sentence of death. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm the convictions and sentence.


The following facts were established at trial. On September 16, 1992, James Hunter (a.k.a. Michael Miller), Tammie Cowan, Cathy Woodward, Charles Anderson, Andre Smith, and Eric Boyd traveled by car from St. Augustine to DeLand. Tammie Cowan testified that there were two black BB guns and one silver handgun in the car. Boyd and Anderson had the BB guns and Hunter had the handgun. In DeLand they stopped briefly to see Andre Smith's mother. Thereafter, at approximately 11:44 p.m., Cowan stopped the car and Anderson, Boyd, Smith, and Hunter exited. Hunter then confronted and robbed a man on the street, using the silver handgun. Hunter and his companions then departed for Daytona Beach. Shortly afterwards, a "be on the lookout" (BOLO) alert for the DeLand robbers was transmitted by the police throughout the Volusia County area. The BOLO described a gray four-door sedan occupied by at least five black individuals, two of whom were females, who were suspects.

After the robbery, Hunter directed Cowan to drive to Daytona Beach and the vicinity of Bethune-Cookman College where four young men were standing outside the "Munch Shop." Hunter instructed Cowan to stop the vehicle, and Hunter, Lewis, Anderson, and Smith exited and approached the four men. Hunter was armed with the silver handgun.

Hunter approached the men and ordered them to "give it up." Hunter and his companions then robbed the men at gunpoint. Thereafter, while the men were lying face down on the sidewalk, Hunter shot each of them in turn. Wayne Simpson was the last victim to be shot in this process, and he subsequently died. Hunter and his colleagues then fled with the victims' clothing, jewelry, and other miscellaneous items of personal property. When Hunter returned to the car, he ordered Cowan to leave, and told her that he had fired the gun because a victim had tried to run. Shortly thereafter, at 12:40 a.m., Deputy Richard Graves observed a vehicle in Ormond Beach matching

the DeLand BOLO. Graves stopped the automobile, and Cowan told Graves that she and the others had come from DeLand. While the car was stopped, the DeLand robbery victim was brought to the scene where he identified Hunter as his robber and also identified the car. Cowan consented to a search of the car which yielded two BB guns and personal property belonging to the victims of both the DeLand and Daytona Beach robberies. The gun used by Hunter was never found.

The Charges, Verdict, and Sentencing

Hunter was charged with one count of first-degree murder, three counts of attempted first-degree murder, one count of attempted armed robbery, and three counts of armed robbery. The jury found Hunter guilty of all eight charges. After a penalty phase proceeding, the jury recommended by a vote of nine to three that Hunter receive the death penalty for the murder of Simpson.

In its sentencing order, the trial court found two aggravators: prior violent felony conviction 1 and capital felony committed during a robbery 2 and no statutory mitigating circumstances. The court found ten non-statutory mitigating factors: (1) fetal alcohol syndrome; (2) separation from siblings; (3) lack of motherly nurturing and bonding; (4) physical abuse; (5) emotional abuse and neglect; (6) unstable environment; (7) violent environment; (8) lack of positive role models; (9) death of adoptive mother; and (10) narcissistic personality disorder.


Hunter raises fourteen claims in this appeal. Although Hunter does not directly challenge the sufficiency of the evidence, we initially observe that the record contains substantial competent evidence to support all of his convictions.


Hunter first claims that the trial court erred in finding him competent to stand trial. The test for whether a defendant is competent to stand trial is whether "he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824, 825 (1960); see also Sec. 916.12(1), Fla.Stat. (1993); Fla.R.Crim.P. 3.211(a)(1). The reports of experts are "merely advisory to the [trial court], which itself retains the responsibility of the decision." Muhammad v. State, 494 So.2d 969, 973 (Fla.1986) (quoting Brown v. State, 245 So.2d 68, 70 (Fla.1971), vacated in part on other grounds, 408 U.S. 938, 92 S.Ct. 2870, 33 L.Ed.2d 759 (1972)), cert. denied, 479 U.S. 1101, 107 S.Ct. 1332, 94 L.Ed.2d 183 (1987). And, even when the experts' reports conflict, it is the function of the trial court to resolve such factual disputes. Fowler v. State, 255 So.2d 513, 514 (Fla.1971). The trial court must consider all evidence relative to competence and its decision will stand absent a showing of abuse of discretion. Carter v. State, 576 So.2d 1291, 1292 (Fla.1989), cert. denied, 502 U.S. 879, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991).

Here, the trial court considered a wide variety of lay and expert evidence in making its determination as to whether Hunter was competent to stand trial. The evidence included: the report and testimony of Dr. Jack Rothstein, an expert in psychiatry and neurology; the report of Dr. Lawrence Ehrlich, the court-appointed forensic psychiatrist; the report and testimony of Dr. Lynn Westby, a court-appointed licensed psychologist; the testimony of Ismael Lopez, a mental health specialist at the Volusia County Jail; and the report and testimony of Olney McLarty, the forensic court liaison.

After considering the evidence and observing Hunter's behavior in court, the trial court found Hunter competent to stand trial. Although there were conflicting opinions from the experts on the issue of competency, it was within the sound discretion of the court to resolve the dispute. There is evidence to support that resolution. 3 Therefore, the trial court did not abuse its discretion in finding Hunter competent to stand trial.

Hunter also claims error in the denial of his renewed motion to determine competency. In this motion, defense counsel made several observations about his client's continuing unusual behavior, including Hunter's repeated threats to disrupt the proceedings. Defense counsel also referred to a second report from Dr. Rothstein which primarily discussed mitigating circumstances, but also opined that Hunter was incompetent to stand trial.

Once a defendant is declared competent, the trial court must still be receptive to revisiting the issue if circumstances change. However, only if bona fide doubt is raised as to a defendant's mental capacity is the court required to conduct another competency proceeding. Pericola v. State, 499 So.2d 864, 867 (Fla. 1st DCA 1986), review denied, 509 So.2d 1118 (Fla.1987); see also Drope v. Missouri, 420 U.S. 162, 180-81, 95 S.Ct. 896, 908, 43 L.Ed.2d 103, 118-19 (1975). A presumption of competence attaches from a previous determination of competency to stand trial. Durocher v. Singletary, 623 So.2d 482, 484 (Fla.), cert. dismissed, --- U.S. ----, 114 S.Ct. 23, 125 L.Ed.2d 774 (1993).

Upon review of the record, we find no abuse of discretion by the trial court. Hunter presented nothing materially new in his second competency motion. While there was continuing evidence of incompetence, it was the same or similar to the evidence previously asserted and was not of such a nature as to mandate a new hearing.

Jury Selection

Hunter argues that the trial court erred by preventing defense counsel from exercising peremptory backstrikes once the entire jury panel was formed. 4 In Gilliam v. State, 514 So.2d 1098 (Fla.1987), we reaffirmed a defendant's right to challenge a prospective juror before the jury is sworn and held that " '[a] trial judge has no authority to infringe upon a party's right to challenge any juror, either peremptorily or for cause, prior to the time the jury is sworn.' " Id. at 1099 (quoting Jackson v. State, 464 So.2d 1181, 1183 (Fla.1985)).

In this case, when defense counsel expressed a desire to backstrike once the entire jury panel was formed, the trial court responded:

I'm going to go forward. If you come back and backstrike twice with this group, I'm going to personally take some sanctions against you as an officer of this Court.

Do you understand?

We find that the trial judge's comments are inconsistent with our holding in Gilliam. See also Fla.R.Crim.P. 3.310. However, Hunter has been unable to demonstrate any

prejudice by the trial court's action because trial counsel had exhausted his allotted peremptory challenges when the opportunity to backstrike arose--i.e., when the jury panel was formed. Hence, we find no prejudicial error.

Motion to Suppress

As his fourth claim, Hunter asserts that the evidence from the stop and search of the vehicle should have been suppressed. A law enforcement officer may stop a vehicle and request identification from its occupants when the officer has founded or reasonable suspicion that the occupants of the vehicle have committed, are committing, or are about to commit a crime. Sec. 901.151(2), Fla.Stat. (1993); Sumlin v. State, 433 So.2d 1303, 1304 (Fla. 2d DCA 1983). 5 A "mere" or "bare" suspicion will not suffice. Sumlin, 433 So.2d at 1304.

A "founded suspicion" is a suspicion which has some factual foundation in the...

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