Jackson v. State, 47269

• Citation: 366 So.2d 752
• Decision Date: 26 October 1978
• Docket Number: No. 47269,47269
• Parties: Ronald JACKSON, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 752

366 So.2d 752

Ronald JACKSON, Appellant, v. STATE of Florida, Appellee.

No. 47269.

Supreme Court of Florida.

Oct. 26, 1978.

Jack J. Taffer of the Law Offices of Jack J. Taffer, Miami, for appellant.

Robert L. Shevin, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

This is an appeal from a conviction of murder ¹ in the first degree and a sentence of death. Jurisdiction vests 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 death of the victim occurred during a robbery. On July 31, 1974, appellant and a companion, Willie Watts, approached an automobile parked in a downtown Miami parking lot and forced its occupants, Mr. Lamora and Mrs. Iturba, to give them their money and their jewelry. The couple was then forcibly transported from the scene of the robbery to a secluded area outside of town and directed to walk across a field toward a swamp. At this point Mr. Lamora attempted to subdue his captors and was shot. Somehow, he was able to escape into the woods, but Mrs. Iturba, who was also shot, could not get away. She was stuffed into the trunk of her car and transported to another isolated area where her body was hidden beneath the brush and shrubs. An electrical cord was tied around her neck, causing suffocation, the primary cause of death.

Much of the prosecution's case was presented through statements made by the appellant while in the custody of the police. Appellant was arrested on August 1, 1974, at approximately 11:40 a. m. at a service plaza near Pompano, Florida, by an officer of the Florida Highway Patrol. At the time of his arrest appellant was immediately informed of his constitutional rights pursuant to the procedure outlined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Detectives from Dade County arrived at the Pompano Plaza at 12:30 p. m. and Miranda warnings were again given. Appellant was then transported to the Dade County Jail where, for the third time, Miranda warnings were given and questioning commenced. Up to this time, Mrs. Iturba's body had not been found and appellant had not been charged with murder. (He had been arrested for the attempted murder of Mr. Lamora.) Sometime between his arrival at the Dade County Jail and 6:15 p. m., appellant described his activities in connection with the robberies and told the officers where Mrs. Iturba's body could be found. At approximately 7:15 p. m., after the corpse had been recovered, appellant was again informed of his Miranda rights and was placed under arrest for first degree murder. At this point appellant signed a written waiver stating that he understood and waived his Miranda rights. He then related facts concerning the shooting of both Iturba and Lamora, and the shooting of a gas station attendant in a robbery committed during appellant's attempt to leave the area. Before the taking of a formal written statement appellant was again told, "If you want an attorney to represent you at this time or any time during questioning you are entitled to such counsel. Do you understand that?" Appellant replied, "Yes, can I have one?" No counsel was furnished, and the questioning continued.

The trial judge determined that the formal written statement, taken after counsel was requested but before counsel was summoned, was inadmissible. All prior oral statements were admitted. To this, appellant objected. The test for determining the validity of a confession or statement is whether the statement was voluntarily and freely made after full Miranda warnings. Voluntariness need only appear by a preponderance of the evidence. See Wilson v. State, 304 So.2d 119 (Fla.1974) and State v. Harris, 276 So.2d 845 (Fla. 4th DCA 1973). We think that the trial judge's determination that these statements were freely and voluntarily made was correct.

We have also reviewed the admission into evidence of two photographs of the victim and find these photographs relevant and therefore properly admitted. Alford v. State, 307 So.2d 433 (Fla.1975); Bauldree v. State, 284 So.2d 196 (Fla.1973); and State v. Wright, 265 So.2d 361 (Fla.1972).

Appellant next contends that the striking of nine prospective jurors, all opposed to the death penalty, deprived him of his constitutional right to a jury composed of a cross section of the community. The record clearly shows that these jurors expressed more than mere opposition. Of the nine prospective jurors, three stated unequivocally that they would not vote "guilty of first degree murder" for fear the appellant would be executed. One said he would not vote "guilty" of first degree murder "(i)f I had any doubt in my mind they are going to kill (appellant)." For religious, moral, or unstated reasons, four other jurors said they would vote to recommend death in no circumstances. The ninth juror responded to the questions of the court and counsel in such a manner that the only conclusion that can be drawn is that she would vote against death regardless of the facts presented or the instructions given. ²

This issue is governed by Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), wherein the Supreme Court stated at page 522, 88 S.Ct. at page 1777:

We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt.

We find that the trial judge followed the dictates of Witherspoon, supra, and properly excused the jurors. See also Williams v. State, 228 So.2d 377 (Fla.1969) and Portee v. State, 253 So.2d 866 (Fla.1971).

Prior to sentencing, the trial judge ordered that a presentence investigation report be prepared in connection with the robbery and assault charges. He did not order a PSI in connection with the murder charge. Appellant, a first felony offender, contends that Fla.R.Crim.P. 3.710 ³ requires a trial judge to order a presentence investigation report in all cases where a defendant has not previously been convicted of a felony. This point must be decided against the appellant on authority of this court's recent opinion in Hargrave v. State, 366 So.2d 1 (Fla.1978). In that case we held that once a jury returns a verdict of first degree murder, the trial judge is exempt from the mandatory presentence requirements of the rule.

Finally, we must determine whether or not appellant was appropriately sentenced. § 921.141(4), F.S. (1975).

The trial judge made the following findings of fact:

THIS CAUSE came before the Court for trial by jury and after deliberations a verdict was rendered finding the defendant guilty of Murder in the First Degree, two counts of Robbery, and Assault With Intent to Commit Murder in the First Degree. Thereafter, the defendant was adjudicated guilty by the Court and the jury, after hearing additional matters, retired to consider an advisory sentence, pursuant to Florida Statute 921.141(2). The jury returned, and in open Court recommended that this Court impose the death penalty upon the defendant.

This Court independent of, but in agreement with, the advisory sentence rendered by the jury does hereby impose the death penalty upon the defendant, RONALD JACKSON, and in support thereof, as required by 921.141(3), submits this, its written findings upon which the sentence of death is based.

These findings are as follows:

1. That sufficient aggravating circumstances exist in this particular case that far outweigh any mitigating circumstances in the record. The death of this decedent occurred while the defendant was engaged in the commission of the crime of Armed Robbery. In addition thereto, the defendant clearly committed the capital felony in order to eliminate the victim of the robbery. He forcibly transported the victim against her will, from the scene of the robbery to a lonely desolate area to accomplish the capital felony. These facts alone, in this Court's judgment could justify the imposition of the death penalty, but this particular killing is far more useless and heinous than this.

2. The Court finds that the capital felony committed in this case was especially heinous, atrocious and cruel. The Supreme Court of Florida in consideration of the legalities of the recently enacted death sentence in the State of Florida, decreed that these terms were to receive their common connotations and decreed that "heinous" meant "extremely wicked or shockingly evil", "atrocious" meant "outrageously wicked and vile" and "cruel" meant "a design to inflict a high degree of pain with utter indifference to or even enjoyment of the suffering of others". See Dixon v. State, 283 So.2d 1, pg. 9, Florida Supreme Court, 1973. The facts of this case indicate the full meaning of "heinous, atrocious and cruel". The victim of the robbery and murder was eight months pregnant. The fetus died because of the defendant's actions. The victim was led across a wet field to a swamp. There she observed her friend shot in the arm by the defendant, who then turned the gun on her and shot her in the head. The obvious intention of the defendant, in this Court's opinion, was to eliminate and execute the witnesses to the robbery. However, one of the victims escaped, after having been shot a second time. The murdered victim was literally stuffed into the trunk of her own car and transported to another isolated area of the County and her body hidden under thick brush and left. An electrical cord was tied around the victim's neck, causing suffocation, the...