Hurst v. State, No. SC00-1042.

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM.
• Citation: 819 So.2d 689
• Parties: Timothy Lee HURST, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 18 April 2002
• Docket Number: No. SC00-1042.

819 So.2d 689

Timothy Lee HURST, Appellant,
v.
STATE of Florida, Appellee

No. SC00-1042.

Supreme Court of Florida.

April 18, 2002.

Rehearing Denied June 3, 2002.

819 So.2d 692

Nancy A. Daniels, Public Defender, and W.C. McLain, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Appellant

Robert A. Butterworth, Attorney General, and Curtis M. French, Assistant Attorney General, Tallahassee, FL, for Appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing a sentence of death upon Timothy Lee Hurst. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the following reasons, we affirm Hurst's conviction for first-degree murder and his sentence of death.

MATERIAL FACTS

The trial record reflects the underlying relevant facts giving rise to Hurst's conviction and sentence. On the morning of May 2, 1998, a murder and robbery occurred at a Popeye's Fried Chicken restaurant in Escambia County, Florida, where Hurst was employed. Hurst and the victim, assistant manager Cynthia Lee Harrison, were scheduled to work at 8 a.m. on the day of the murder. A worker at a nearby restaurant, Carl Hess, testified that he saw Harrison arriving at work between 7 a.m. and 8:30 a.m. Afterwards, Hess said that he saw a man, who was about six feet tall and weighed between 280 and 300 pounds, arrive at Popeye's and bang on the glass windows until he was let inside. The man was dressed in a Popeye's uniform and Hess recognized him as someone he had seen working at Popeye's. Shortly after the crime, Hess picked Hurst from a photographic lineup as the man he had seen banging on the windows. Hess was also able to identify Hurst at trial.

On the morning of the murder, a Popeye's delivery truck was making the rounds at Popeye's restaurants in the area. Janet Pugh, who worked at another Popeye's, testified she telephoned Harrison at 7:55 a.m. to tell her that the delivery truck had just left and Harrison should expect the truck soon. Pugh spoke to the victim for four to five minutes and did not detect that there was anything wrong or hear anyone in the background. Pugh was certain of the time because she looked at the clock while on the phone.

Popeye's was scheduled to open at 10:30 a.m. but Harrison and Hurst were the only employees scheduled to work at 8 a.m.¹ However, at some point before opening, two other Popeye's employees arrived, in addition to the driver of the supply truck. None of them saw Hurst or his car. At 10:30 a.m., another Popeye's assistant manager, Tonya Crenshaw, arrived and found the two Popeye's employees and the truck driver waiting outside the locked restaurant.

When Crenshaw unlocked the door, and she and the delivery driver entered, they discovered that the safe was unlocked and open, and the previous day's receipts, as well as $375 in small bills and change, were missing. The driver discovered the victim's dead body inside the freezer. The

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victim had her hands bound behind her back with black electrical tape and she also had tape over her mouth. Similar tape was later found in the trunk of Hurst's car. The scene was covered with a significant amount of the victim's blood, and it was apparent from water on the floor that someone had attempted to clean up the area

The victim suffered a minimum of sixty incised slash and stab wounds, including severe wounds to the face, neck, back, torso, and arms. The victim also had blood stains on the knees of her pants, indicating that she had been kneeling in her blood. A forensic pathologist, Dr. Michael Berkland, testified that some of the wounds cut through the tissue into the underlying bone, and while several wounds had the potential to be fatal, the victim probably would not have survived more than fifteen minutes after the wounds were inflicted. Dr. Berkland also testified that the victim's wounds were consistent with the use of a box cutter. A box cutter was found on a baker's rack close to the victim's body. Later testing showed that the box cutter had the victim's blood on it. It was not the type of box cutter that was used at Popeye's, but was similar to a box cutter that Hurst had been seen with several days before the crime.

Hurst's friend, Michael Williams, testified that Hurst admitted to him that he had killed Harrison. Hurst told him that he had an argument with the victim, she "retaliated," and that Hurst hit the victim and cut her with a box cutter. Hurst said he had killed the victim because, "he didn't want the woman to see his face." Williams stated that Hurst had talked about robbing Popeye's on previous occasions.

Another of Hurst's friends, "Lee-Lee" Smith, testified that the night before the murder, Hurst said he was going to rob Popeye's. On the morning of the murder, Hurst came to Smith's house with a plastic container full of money from the Popeye's safe. Hurst instructed Smith to keep the money for him. Hurst said he had killed the victim and put her in the freezer. Smith washed Hurst's pants, which had blood on them, and threw away Hurst's socks and shoes. Later that morning, Smith and Hurst went to Wal-Mart to purchase a new pair of shoes.² They also went to a pawn shop where Hurst saw some rings he liked, and after returning to Smith's house for the stolen money, Hurst returned to the shop and purchased the three rings for $300. An employee at the shop, Bob Little, testified that on the day of the murder, a man fitting Hurst's description purchased three rings. Little picked Hurst out of a photographic lineup as the man who had purchased the rings. The police recovered the three rings from Hurst.

Smith's parents were out of town the weekend of the murder but upon their return, and after discovering the container with the money from Popeye's in Smith's room, Smith's mother contacted the police and turned the container over to them. The police interviewed Smith and searched a garbage can in Smith's yard where they found a coin purse that contained the victim's driver's license and other property, a bank bag marked with "Popeye's" and the victim's name, a bank deposit slip, a sock with blood stains on it, and a sheet of

819 So.2d 694

notebook paper marked "Lee Smith, language lab." On the back of the notebook paper someone had added several numbers, and one number was the same as the amount on the deposit slip. Smith's father also gave the police a pair of size fourteen shoes that appeared to have blood stains on them and that he had retrieved from the same trash can

Jack Remus, a Florida Department of Law Enforcement (FDLE) crime lab analyst, testified that the shoes were tested with phenolpthalein to detect blood, and while the test results exhibited some of the chemical indications associated with blood, attempts at DNA testing were not successful. Remus also tested the blood-stained sock and determined that the DNA typing was consistent with the victim. Hurst's pants were also tested, but no blood evidence was detected. FDLE fingerprint expert Paul Norkus testified that the deposit slip in the garbage can had three of Hurst's fingerprints on it.

At trial, the State played the tape of an interview the police had conducted with Hurst shortly after the murder. Hurst said that on the morning of the murder he was on his way to work and his car broke down. He said that he telephoned Harrison at Popeye's to say he was unable to come to work, and when he talked to her, she sounded scared and he heard whispering in the background. Hurst then went to Smith's house and changed out of his work clothes. Hurst said he went to the pawn shop and bought necklaces for friends, but he did not mention purchasing the three rings or buying a new pair of shoes at Wal-Mart.

At the close of the guilt phase of the trial, the jury deliberated for approximately six hours before finding Hurst guilty of first-degree murder. During the penalty phase, several of Hurst's family members testified that Hurst was slow and that his emotional and mental development was not as advanced as other people his age. After the completion of penalty phase testimony, the court instructed the jury on two aggravating circumstances and on a number of mitigating circumstances. The jury voted eleven-to-one to recommend the death penalty.

The trial court sentenced Hurst to death, and found three aggravating circumstances: (1) the murder was committed by a person engaged in the commission of a robbery ("great weight"); (2) the murder was especially heinous, atrocious, and cruel (HAC) ("great weight"); and (3) the murder was committed for the purpose of avoiding or preventing a lawful arrest ("great weight"). The avoid arrest aggravating circumstance was not argued by the State and no instruction on that aggravator was read to the jury. In mitigation, the court considered a number of claimed mitigating factors and rejected most, including four determinations which Hurst now challenges:³ (1) Hurst has a good family background ("no weight"); (2) Hurst's contribution to the community was good in that he assisted his church and assisted his neighbors during their time of need ("little weight"); (3) Hurst maintained regular church attendance and involved

819 So.2d 695

himself in weekly Bible study ("little weight"); (4) Hurst's age ("very little weight").⁴

ANALYSIS

Hurst raises four issues in his appeal, all of which pertain to the penalty phase of his trial.⁵ Despite the lack of challenge, we have examined the record and have determined that there was competent and substantial evidence presented to support the conviction for murder. We have already referred to that evidence in some detail.⁶

"Avoid Arrest" Aggravating Circumstance

Hurst does not challenge the aggravating factors found by the trial court that the murder was especially heinous, atrocious, or cruel (HAC), or that the murder took place during the course of a robbery. However, Hurst does challenge the trial court's finding of the...