Kearse v. State

• Decision Date: 22 June 1995
• Docket Number: No. 79037,79037
• Citation: 662 So.2d 677
• Parties: 20 Fla. L. Weekly S300, 20 Fla. L. Weekly S565 Billy Leon KEARSE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 677

662 So.2d 677

20 Fla. L. Weekly S300, 20 Fla. L. Weekly S565

Billy Leon KEARSE, Appellant, v. STATE of Florida, Appellee.

No. 79037.

Supreme Court of Florida.

June 22, 1995.

Rehearing Denied Nov. 9, 1995.

Richard L. Jorandby, Public Defender and Jeffrey L. Anderson, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen. and Sara D. Baggett, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Billy Leon Kearse. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. For the reasons set forth below, we affirm Kearse's convictions, but vacate his death sentence and remand for a new penalty phase proceeding before a jury.

Kearse was charged with robbery with a firearm and first-degree murder in the death of Fort Pierce police officer Danny Parrish on January 18, 1991. After Parrish observed Kearse driving in the wrong direction on a one-way street, he called in the vehicle license number and stopped the vehicle. Kearse was unable to produce a driver's license, and instead gave Parrish several alias names that did not match any driver's license history. Parrish then ordered Kearse to exit the car and put his hands on top of the car. While Parrish was attempting to handcuff Kearse, a scuffle ensued, Kearse grabbed Parrish's weapon and fired fourteen shots. Thirteen of the shots struck Parrish, nine in his body and four in his bullet-proof vest. A taxi driver in the vicinity heard the shots, saw a dark blue vehicle occupied by a black male and female drive away from the scene, and called for assistance on the police officer's radio. Emergency personnel transported Parrish to the hospital where he died from the gunshot injuries.

The police issued a be-on-the-lookout (BOLO) for a black male driving a dark blue 1979 Monte Carlo. By checking the license plate that Officer Parrish had called in, the police determined that the car was registered to an address in Fort Pierce. Kearse was arrested at that address. After being informed of his rights and waiving them, Kearse confessed that he shot Parrish during a struggle that ensued after the traffic stop.

The jury convicted Kearse of both charged counts and recommended the death penalty by a vote of eleven to one. In sentencing Kearse to death, the judge found four aggravating circumstances: 1) the murder was committed while the defendant was engaged in a robbery; 2) the murder was committed to either avoid arrest or hinder the enforcement of laws; 3) the murder was especially heinous, atrocious, or cruel (HAC); and 4) the victim of the murder was a law enforcement officer engaged in the performance of his official duties. Sec. 921.141(5)(d), (e), (g), (h), (j), Fla.Stat. (1991). The judge found two statutory mitigating circumstances: the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance; and the defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. Sec. 921.141(6)(b), (f), Fla.Stat. (1991). The judge also found three nonstatutory mitigating circumstances: the defendant's impoverished and culturally deprived background; the defendant was severely emotionally disturbed as a child; and the defendant's IQ is just above the retarded line. However, the judge determined that none of the mitigating circumstances "are substantial or sufficient to outweigh any aggravating circumstance."

On appeal, Kearse raises the following issues: 1) the denial of the requested limiting instruction on the consideration of duplicate aggravating circumstances; 2) the aggravating circumstances of murder of a law enforcement officer and avoid arrest or hinder enforcement of laws constituted improper doubling; 3) the court's failure to find Kearse's age to be a mitigating factor; 4) the consideration of the aggravating circumstance of committed while engaged in the commission of a robbery; 5) finding that the murder was HAC; 6) the denial of the requested instruction on the cold, calculated, and premeditated (CCP) aggravating circumstance; 7) the prosecutor engaged in misconduct during the penalty phase; 8) the aggravating circumstance of committed while engaged in the commission of a robbery was based on the same aspect of the offense as the other aggravating circumstances; 9) the death penalty is not proportional; 10) the admission of evidence regarding Kearse's emotional state during the penalty phase; 11) the giving of the State's special requested instruction on premeditated murder over defense objection; 12) instructing the jury on escape as the underlying felony of felony murder; 13) the denial of defense challenges for cause of prospective jurors; 14) the admission of testimony regarding the purpose of a two-handed grip on a gun; 15) the denial of defense motions to suppress evidence on the basis that Kearse's warrantless arrest was not based on probable cause; 16) the instruction on reasonable doubt denied Kearse due process and a fair trial; 17) the admission of hearsay evidence during the guilt phase; 18) the introduction of evidence in the penalty phase that Kearse had been previously convicted of robbery; 19) the admission of Kearse's alleged disciplinary record during the penalty phase; 20) the constitutionality of the felony murder aggravating circumstance; 21) the denial of the requested instruction regarding the weight to be afforded the jury's recommended sentence; 22) the denial of the requested instruction regarding mitigating circumstances; 23) the denial of the requested instruction regarding the burden of proof in the penalty phase; 24) the constitutionality of Florida's death penalty statute; and 25) the constitutionality of the aggravating circumstances found in this case.

Guilt Phase

Issues 11-17, which relate to the guilt phase proceedings, are without merit. Kearse claims that the standard instruction on reasonable doubt which was given in this case is constitutionally infirm (issue 16). This issue was not properly preserved as counsel raised no objection below. However, even if preserved, we would find no merit to this claim as this Court has previously considered and rejected similar constitutional challenges directed at the reasonable doubt instruction. See Esty v. State, 642 So.2d 1074, 1080 (Fla.1994); accord Brown v. State, 565 So.2d 304, 307 (Fla.), cert. denied, 498 U.S. 992, 111 S.Ct. 537, 112 L.Ed.2d 547 (1990), abrogated on other grounds, Jackson v. State, 648 So.2d 85 (Fla.1994).

In issue 11, Kearse argues that the trial court erred in reading a special instruction on premeditation. The following language was added to the standard instruction on premeditation:

Among the ways that premeditation may be inferred is from evidence as to the nature of the weapon used, the manner in which the murder was committed and the nature and manner of the wounds inflicted.

Kearse contends that this instruction improperly highlighted the State's evidence through the court's voice, permitted the jury to infer premeditation based on insufficient evidence, and constituted an improper comment on the evidence because the court called the killing a "murder." The State argues that these were not the grounds on which Kearse objected to the special instruction below, and thus he is precluded from raising them for the first time on appeal. Our review of the record reveals that defense counsel objected that the special instruction "doesn't accurately state the law" and "limits the jury to what they may look at in inferring the existence of premeditation." These objections and the discussion that followed can be fairly interpreted to cover the first two legal grounds raised in this appeal. Thus, these contentions have been preserved for our review.

As this Court explained in State v. Bryan, 287 So.2d 73, 75 (Fla.1973), cert. denied, 417 U.S. 912, 94 S.Ct. 2611, 41 L.Ed.2d 216 (1974), the standard jury instructions should be used to the extent applicable in the judgment of the trial court. However, the trial judge still has the responsibility to " 'properly and correctly ... charge the jury in each case,' " id. (quoting In re Standard Jury Instructions in Criminal Cases, 240 So.2d 472, 473 (Fla.1970)), and the judge's decision regarding the charge to the jury "has historically had the presumption of correctness on appeal." Id.

In the instant case, the judge instructed the jury that premeditation could be inferred from such evidence as the nature of the weapon used, the manner in which the murder was committed, and the nature and manner of the wounds inflicted. The State sought this more detailed definition of premeditation as this element of the offense was the foremost issue in dispute. Although the added language is not part of the standard jury instruction, it is an accurate statement of the law regarding premeditation. See Sireci v. State, 399 So.2d 964, 967 (Fla.1981) ("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."), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982). Thus, the trial court did not err by giving this expanded instruction on premeditation.

We do agree with Kearse that the trial court erred by referring to the homicide as a "murder" in the expanded instruction. However, Kearse did not object to the special instruction on this ground and thus did not preserve this issue for appeal. See Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982) ("[I]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the...