Jorgenson v. State, 86916

• Decision Date: 11 June 1998
• Docket Number: No. 86916,86916
• Citation: 714 So.2d 423
• Parties: 23 Fla. L. Weekly S339 Ronald JORGENSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 423

714 So.2d 423

23 Fla. L. Weekly S339

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

No. 86916.

Supreme Court of Florida.

June 11, 1998.

Byron P. Hileman, Winter Haven, for Appellant.

Robert A. Butterworth, Attorney General, and Robert J. Landry, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Ronald Jorgenson. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. For the reasons expressed below, we affirm Jorgenson's first-degree murder conviction but vacate the sentence of death and instead, direct imposition of a sentence of life imprisonment without possibility of parole for twenty-five years.

The evidence presented at trial established the following facts. In the early morning hours of December 2, 1993, Jorgenson called the sheriff's office to report that Tammy Jo Ruzga was missing. Ruzga and Jorgenson had been living together for approximately eight months. Jorgenson told the sheriff's office that Ruzga had left the house the previous evening in his car and had not returned. Hours later, Ruzga was found dead in the car on the side of a road. She had been shot three times in the head. The murder weapon was never found. Shoe prints, tire prints from a second car, and a Camel Light cigarette butt were found near the murder scene.

On the afternoon of December 2, detectives observed shoe prints at Jorgenson's house similar to those found at the murder scene. Jorgenson voluntarily agreed to come to the sheriff's station for an interview. Jorgenson waived his Miranda ¹ rights and voluntarily gave the detectives the pair of shoes he was wearing. The detectives also collected several Camel Lights cigarette butts that Jorgenson discarded while at the station. When asked about the previous night, Jorgenson stated that he was at Rocky Finley's house with Laurie Kilduff. Jorgenson stated that after leaving Finley's house, he and Kilduff stayed at Jorgenson's house the rest of the night.

When interviewed, Kilduff told the same story as Jorgenson, but added that she and Jorgenson had gone out for a drive. Kilduff was interviewed a second time on December 3, again repeating the same story. Detectives analyzed the tires on Kilduff's car at the second interview, to see if they matched those found at the murder scene. After making a positive identification, the police arrested Kilduff for a previous violation of probation. Detectives confronted Kilduff with evidence which implicated her and Jorgenson in Ruzga's murder. She was warned that she could be charged as a principal for first-degree murder. She was told that it was her last chance to talk, and if she helped out, she would receive complete immunity. Kilduff finally admitted that she was near the murder scene on the night of the murder, that she witnessed Jorgenson shoot Ruzga, and that she drove Jorgenson home. Kilduff repeated this testimony at trial.

Other evidence presented at trial established that both Jorgenson and Ruzga used the drug methamphetamine. Jorgenson was also a dealer of the drug. Witnesses alleged that Ruzga's drug use caused her to lie and steal from Jorgenson, creating friction between the two. A number of witnesses testified that Jorgenson made references to wanting to kill Ruzga in the weeks before the murder. Several witnesses also testified that Jorgenson discussed the details of the murder with them.

State evidence was introduced that linked Jorgenson's saliva to that which was on the cigarette butt found at the murder scene. There was also evidence that the shoe prints found at the murder scene matched Jorgenson's shoes, and the tire prints found at the murder scene matched Kilduff's car. ² At the end of the guilt phase, the jury found that Jorgenson was guilty of first-degree murder.

During the penalty phase, the State presented one aggravating factor--Jorgenson's prior 1967 conviction for second-degree murder in Colorado. Jorgenson presented two statutory mitigating factors: (1) the murder was committed while Jorgenson was under the influence of extreme mental or emotional disturbance and (2) Jorgenson's capacity to conform his conduct to the requirements of the law was substantially impaired. Jorgenson also presented three nonstatutory mitigating factors which were recognized by the trial court: (1) the murder was committed while Jorgenson was under the influence of drugs, (2) the murder was a product of disagreement stemming from a romantic relationship, and (3) there was disparity of treatment between Jorgenson and Kilduff. Jorgenson alleges in this appeal that he also presented eleven additional nonstatutory mitigators. ³ The jury recommended death by a vote of eleven to one.

The trial court found that the aggravating factor was proven beyond a reasonable doubt. The trial court determined that neither of the statutory mitigating factors nor the second nonstatutory mitigating factor were established. The trial court also determined that the two established nonstatutory mitigating factors only deserved minimal weight. The trial court did not address the eleven nonstatutory mitigating factors that Jorgenson raises in this appeal. The trial court agreed with the jury's recommendation and imposed the death penalty.

Jorgenson raises seven points on appeal. He asserts the following: (1) the trial court erred by denying Jorgenson's motion to suppress evidence and statements; (2) the trial court erred by permitting the State to introduce evidence of collateral crimes and bad acts; (3) the trial court erred in failing to find that Jorgenson established the alleged mitigating factors; (4) the trial court erred by failing to discount the weight of the previous violent felony aggravating factor based on the facts of the previous felony; (5) the trial court erred by weighing and allowing the penalty phase jury to weigh the nonstatutory aggravating factor that Jorgenson was a drug dealer; (6) the trial court erred in denying Jorgenson's requested jury instruction regarding the nonstatutory mitigating factor of disparity of treatment of an accomplice, and that the trial court erred in failing to find this mitigating factor; and (7) the death penalty is disproportionate in this case.

We address the two guilt phase issues first. In issue one, Jorgenson argues that the trial court erred by denying his motion to suppress evidence and statements. Jorgenson attempted to suppress a pair of shoes, statements that he made to the detectives, and items collected from his home, including clothing, ammunition, and blood samples. Jorgenson signed a consent form, which gave the sheriff's office permission to perform the searches. Jorgenson also acknowledged in the consent form that he understood his Miranda rights and that he was waiving those rights. Jorgenson argues that the voluntariness of the consent to search and the waiver of his Miranda rights was impaired, due to Jorgenson being under the influence of drugs at the time the consent was given.

A warrantless search is per se unreasonable under the Fourth Amendment. Washington v. State, 653 So.2d 362, 364 (Fla.1994). However, a search will be considered lawful if conducted pursuant to consent which was given freely and voluntarily. Id.; Norman v. State, 379 So.2d 643, 646 (Fla.1980). In Washington, this Court stated:

The question of whether a consent is voluntary is a question of fact to be determined from the totality of the circumstances. "[W]here the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority." ... [T]he voluntariness of the consent must be established by a preponderance of the evidence.

653 So.2d at 364 (quoting Reynolds v. State, 592 So.2d 1082, 1086 (Fla.1992)) (alterations in original).

Similarly, the burden of showing that a defendant's statement was voluntarily made is on the State. Brewer v. State, 386 So.2d 232, 236 (Fla.1980). The State must establish voluntariness by a preponderance of the evidence. Id.

At the hearing on the motion to suppress, Detective Cospar and Detective Warren testified that Jorgenson did not appear to be under the influence of any intoxicants at the time he gave the search consents and waived his Miranda rights. On cross examination, defense counsel was able to impeach the testimony of Detective Warren. ⁴ However, Jorgenson did not offer any substantive evidence to establish that he was in fact under the influence of drugs at the time he gave his consent for the searches and waived his Miranda rights.

Based upon our review of the record, we find that there is competent, substantial evidence that Jorgenson was not intoxicated at the time he gave his consent for the searches and waived his Miranda rights. Therefore, we find that the trial court did not err in its ruling on the motion to suppress.

In issue two, Jorgenson argues that the trial court erred in permitting the State to introduce evidence of collateral crimes and bad acts. Specifically, Jorgenson argues that it was impermissible for the State to present evidence regarding Jorgenson's activities as a drug dealer. Jorgenson contends that the State made his drug dealing a feature of the trial. Jorgenson also argues that this evidence was not relevant to prove any material issue in this case.

Drug dealing is not similar to the crime for which Jorgenson was tried in this case and therefore could not have been admitted under section 90.404(2)(a), Florida Statutes (1993). ⁵ See Sexton v. State, 697 So.2d 833, 836 (Fla.1997). However, this did not preclude the evidence from being admitted on a different basis. In Sexton, we addressed the standard for the admissibility of similar crime and bad act evidence when the evidence is not...