Jackson v. State, 71564

• Citation: 575 So.2d 181,16 Fla. L. Weekly 151
• Decision Date: 18 January 1991
• Docket Number: No. 71564,71564
• Parties: 16 Fla. L. Weekly 151 Clinton Lamar JACKSON, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 181

575 So.2d 181

16 Fla. L. Weekly 151

Clinton Lamar JACKSON, Appellant, v. STATE of Florida, Appellee.

No. 71564.

Supreme Court of Florida.

Jan. 18, 1991.

Richard J. Sanders, Gulfport, for appellant.

Robert A. Butterworth, Atty. Gen., and Michele Taylor, Asst. Atty. Gen., Tampa, for appellee.

BARKETT, Justice.

In his first trial for armed robbery and first-degree murder, the appellant, Clinton Lamar Jackson ("Jackson"), was convicted and sentenced to death. This Court reversed the conviction, vacated the sentence, and remanded for a new trial. Jackson v. State, 498 So.2d 906 (Fla.1986). On retrial, Jackson again was convicted and sentenced to death. We now review the convictions and sentence of death imposed at the conclusion of Jackson's second trial. We affirm the convictions but vacate the sentence of death and remand for imposition of a sentence of life imprisonment. ¹

Evidence adduced in the guilt phase of the trial showed that at about 5 p.m. on January 17, 1984, two customers entered the Davis Hardware Store in St. Petersburg, Florida. There they found the owner, Herbert Phillibert, fifty-three, lying facedown behind the counter, semiconscious, and clutching a five-dollar bill in one of his hands. The cash register drawer was open, containing only a one-dollar bill, and coins lay scattered about on the floor. The customers summoned emergency medical personnel, but Phillibert had already died by the time they arrived a few minutes later. Phillibert had been shot once in the lower right chest from a distance of at least three feet. There were no witnesses to the shooting, and Phillibert was unable to describe what happened before he died.

Delores Flournoy and Elma Lindsay testified that during the late afternoon on the day of the killing, they saw two black males in their twenties running through an alley away from the direction of the store and jumping into a small black pickup truck. Flournoy and Lindsay could not identify the men, but they identified the truck as one belonging to Bennie Phillips, the boyfriend of Marsha Jackson. She is the mother of the appellant and his brother, Nathaniel Jackson. ²

Over Jackson's objection, some of the evidence against Jackson was presented in the form of prior sworn testimony of Melvin Eugene Jones, who had testified at Jackson's first trial. Jones, a cabinetmaker, was in jail on numerous charges when he testified in Jackson's first trial. He testified that he saw Jackson in a black pickup truck at various times during the day of the incident, and that he saw Jackson's brother in the passenger's seat early that day. At about 4:45 p.m., Jones said, he saw Jackson driving the truck in the direction of the hardware store, and about a half hour later he saw Jackson driving the truck away from the direction of the store. Jones could not identify the passenger the last time he saw the truck that day.

Police found Jackson's fingerprint on the driver's side of the truck, and found his brother's fingerprints on the front and passenger side. Police also found his brother's palm print on the back of the cash register at Davis Hardware, but they did not find Jackson's prints anywhere in the store. After police arrested Jackson, he waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and denied any involvement in or knowledge of the shooting. He said he had been with his brother in the truck earlier in the day, but he dropped off his brother at 4 p.m. and did not see him again that afternoon.

Jones's prior testimony indicated that several days before the incident, he asked Jackson to buy some supplies at Davis Hardware. Jackson returned with the supplies and told Jones, "I'm going to knock your buddy over down at the store." Jones further testified that he had seen a handgun, perhaps .32-caliber, hidden under the front seat of that black pickup truck at some time before the shooting.

A test to search for gunpowder residue on Jackson's hands after his arrest proved inconclusive. The state recovered the bullet from Phillibert's body but offered no testimony to describe its caliber or source. The murder weapon was never identified or recovered.

After Jackson's arrest, his mother and her boyfriend visited him in jail. Inmate Freddie Williams, who sat next to Jackson, ³ testified that he heard Jackson tell his mother, "we had to do it because he had bucked the jack." Williams testified that he understood "bucked the jack" to mean a robbery victim resisted the robbery, although "[j]ack refers to money ... and a lot of different things." Williams also said he heard Jackson tell his mother "to tell Nate, if they picked up Nate, to tell him that he hadn't--he hadn't been nowhere around the hardware store and get rid of the gun." Williams at the time had been in jail on numerous charges including violation of life parole. Williams said he expected no leniency, but he admitted pleading guilty to five pending felony charges after he informed on Jackson, and he was upset that he got eight years' imprisonment concurrent with the reinstatement of his life sentence. Williams also admitted that he has testified for the state about other jailhouse conversations in four other cases.

Jackson presented no evidence in the guilt phase, and the jury found him guilty of armed robbery and first-degree murder.

I. GUILT PHASE

Jackson contends that there is insufficient evidence to support premeditated murder, and that the evidence also fails to support felony murder because the state did not prove armed robbery, the predicate offense for the charge of felony murder.

We agree that the evidence did not establish premeditated murder. Premeditation, as an element of first-degree murder,

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. Weaver v. State, 220 So.2d 53 (Fla. 2d DCA), cert. denied, 225 So.2d 913 ( [Fla.] 1969). Premeditation does not have to be contemplated for any particular period of time before the act, and may occur a moment before the act. Hernandez v. State, 273 So.2d 130 (Fla. 1st DCA)[,] cert. denied, 277 So.2d 287 ( [Fla.] 1973). 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 the victim is concerned. Larry v. State, 104 So.2d 352 (Fla.1958).

Sireci v. State, 399 So.2d 964, 967 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982). The state relies on Sireci and Griffin v. State, 474 So.2d 777, 780 (Fla.1985), cert. denied, 474 U.S. 1094, 106 S.Ct. 869, 88 L.Ed.2d 908 (1986), to argue that the murder here was premeditated. However, that reliance is misplaced. In Sireci, premeditation was proved with evidence that the defendant clubbed the victim over the head with a wrench, then stabbed and cut the victim fifty-five times in the chest, head, back, and extremities, and finally slit his throat. In Griffin, premeditation was supported by evidence that Griffin used a "particularly lethal gun"; the bullets were of a special type designed to have "a high penetrating ability"; there was no sudden provocation caused by the victim; and Griffin fired two shots into his victim at close range. Griffin, 474 So.2d at 780. Those facts are completely distinguishable from the instant case where there is no evidence to indicate an anticipated killing, and where all of the evidence is equally and reasonably consistent with the theory that Phillibert resisted the robbery, inducing the gunman to fire a single shot reflexively, not from close range, with an unidentified type of weapon and bullet. There is no evidence of a fully-formed conscious purpose to kill. Moreover, there is no evidence in this record that Jackson fired the shot that killed Phillibert.

As to the felony-murder theory, Jackson argues that a trier of fact reasonably could infer that the threat of violence and the shooting occurred in the course of escape after the theft was completed; thus, no armed robbery was proved beyond a reasonable doubt. See Royal v. State, 490 So.2d 44 (Fla.1986). Since there was no armed robbery, he argues, there could have been no felony murder predicated on an underlying armed robbery pursuant to section 782.04(1)(a)(2)(d) of the Florida Statutes (1983). We disagree. The evidence against Jackson was entirely circumstantial. The evidence of armed robbery on which the state relies is consistent with a finding of guilt beyond a reasonable doubt, and Jackson does not present any reasonable hypothesis of innocence when viewed in light of the totality of the evidence against him. See Cox v. State, 555 So.2d 352 (Fla.1989); McArthur v. State, 351 So.2d 972 (Fla.1977). It follows that the felony-murder theory also was supported by the evidence.

Jackson next argues that the trial court should have excluded Jones's prior sworn testimony because the state did not make a diligent effort to locate him before offering that testimony as evidence. Alternatively, Jackson argues that he should have been granted a continuance to find Jones himself. We find no merit in these claims.

Section 90.804(1)(e) of the Florida Statutes (1983), provides that a witness may be declared unavailable if he "[i]s absent from the hearing, and the proponent of his statement has been unable to procure his attendance or testimony by process or other reasonable means." Under that statute,

[t]he burden of demonstrating the unavailability of a witness for trial...