Kilgore v. State

Decision Date29 August 1996
Docket NumberNo. 83684,83684
Citation688 So.2d 895
CourtFlorida Supreme Court
Parties21 Fla. L. Weekly S345, 22 Fla. L. Weekly S105 Dean KILGORE, Appellant, v. STATE of Florida, Appellee.

James Marion Moorman, Public Defender and Paul C. Helm, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General and Carol M. Dittmar, Assistant Attorney General, Tampa, for Appellee.

CORRECTED OPINION

PER CURIAM.

Dean Kilgore appeals his conviction for first-degree murder and the sentence of death subsequently imposed for this prison murder. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm both the conviction for first-degree murder and the imposition of the death sentence.

FACTS

Kilgore was serving a life sentence for first-degree murder, a consecutive life sentence for kidnapping, and an additional consecutive five-year sentence at the Polk Correctional Institution when the events in the instant case took place.

On February 13, 1989, Kilgore and his homosexual lover, Emerson Robert Jackson, had a confrontation as Jackson was leaving his cell. Prior to the confrontation with Jackson, Kilgore waited outside Jackson's cell and smoked a cigarette with another inmate. Kilgore carried a homemade shank Kilgore was indicted for first-degree murder and possession of contraband by an inmate. Originally, Kilgore pleaded nolo contendere to both charges. When a sentence of death was announced, however, Kilgore moved to withdraw his plea on the grounds that his attorney had mistakenly advised him that the death sentence would not be imposed because of the plea. Although a notice of appeal had been filed, this Court relinquished jurisdiction to the circuit court in order that it might address the motion. The lower court granted the motion to withdraw the plea and Kilgore was tried by a jury. At one point during voir dire, Kilgore waived his presence in the courtroom. At other times during the trial, he expressed dissatisfaction with the proceedings. Kilgore was found guilty on both counts and, by a vote of nine to three, the jury recommended that the death penalty be imposed for the murder.

knife. Kilgore approached Jackson outside his cell and stabbed him three times. After the stabbing, Kilgore poured a caustic liquid onto Jackson's face and into his mouth. Jackson died as a result of the stab wounds. Kilgore went to the administration building immediately after the incident and told the guards, "I stabbed the bitch."

The trial judge found that two aggravating circumstances were proven beyond a reasonable doubt: (1) Kilgore was under sentence of imprisonment at the time he committed the murder; 1 and (2) Kilgore was previously convicted of a felony involving the use or threat of violence to the person (first-degree murder, kidnapping, trespass with a firearm, three counts of assault with intent to commit murder in the second degree, two counts of aggravated assault, and resisting arrest with force). 2 The trial judge also found that two statutory mitigating factors applied: (1) Kilgore acted under the influence of extreme mental or emotional disturbance; 3 and (2) Kilgore's capacity to conform his conduct to the requirements of law was substantially impaired. 4 Furthermore, the trial judge stated that he considered the following nonstatutory mitigating factors: Kilgore's extreme poverty as a child, his lack of education, and his poor mental and physical condition. After all factors were weighed, the trial judge ruled that the death sentence was the appropriate sanction. He reasoned that "the accomplishment of this murder necessitated considerable preparation, cunning, and stealth" because entry to Jackson's dormitory was planned, the shank knife was borrowed, the caustic liquid was hidden, and Jackson's presence was anticipated.

Finally, the trial judge wrote that "[t]o sentence Mr. Kilgore to anything but death would be tantamount to giving him a license to kill."

CONVICTION PHASE

Kilgore raises a total of six issues in this appeal. We first address the three claims related to the conviction-phase proceeding. Kilgore avers that he was denied due process under both the state and federal constitutions when his request for a special heat-of-passion instruction was denied. The special instruction would have explained heat of passion in the context of intentional homicide. Essentially, the instruction would have clarified that a person acting under the heat of passion is, in some circumstances, incapable of premeditation. 5 Instead, the trial judge utilized the standard jury instructions. Included in these instructions was a discussion of heat of passion in the context of excusable homicide. Further, the requirement Kilgore claims that the failure to give the requested special instruction was compounded by the prosecutor's closing remarks to the jury. However, no objection was made at the time of the disputed remarks. 6 We have held that allegedly improper prosecutorial remarks cannot be appealed unless a contemporaneous objection is recorded. Gibson v. State, 351 So.2d 948, 950 (Fla.1977), cert. denied 435 U.S. 1004, 98 S.Ct. 1660, 56 L.Ed.2d 93 (1978); State v. Jones, 204 So.2d 515 (Fla.1967). The exception to this general rule is the situation where the allegedly improper comments constitute fundamental error. We have defined fundamental error as being error that " 'reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.' " State v. Delva, 575 So.2d 643, 644-45 (Fla. 1991)(quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)). Using this standard, we find that the prosecutor's remarks in this case fall well short of constituting fundamental error. The challenged remarks simply elaborate on the heat of passion as it is described by the standard jury instruction. Consequently, this issue does not constitute fundamental error and is precluded because there was no contemporaneous objection. See Bonifay v. State, 680 So.2d 413, 418 n.9 (Fla. 1996)(holding claim of improper prosecutorial argument procedurally barred when no contemporaneous objection made and no fundamental error present).

of premeditation in a first-degree murder conviction was repeatedly emphasized. This Court has acknowledged that the standard jury instructions are sufficient to explain premeditation. Spencer v. State, 645 So.2d 377, 382 (Fla.1994). We also have ruled that the trial court does not necessarily abuse its discretion in denying a special heat-of-passion instruction. Kramer v. State, 619 So.2d 274, 277 (Fla.1993). After viewing these facts, we conclude that there is no indication that the trial court erred by refusing the requested instruction. The necessary elements of premeditation were presented with the standard instruction and the trial court was well within its prerogative to refuse a separate, and possibly confusing, instruction.

Second, Kilgore claims that the trial court should have ordered a competency evaluation during the trial. We find this claim to be without merit. We initially note that Kilgore's counsel did not request a competency evaluation during the course of the trial. A single comment about competency, 7 made in passing and now cited by Kilgore, cannot qualify as a request for a competency evaluation. Our responsibility is to examine this record and determine whether the trial court erred by not ordering a competency examination, on its own motion, during the course of the trial. A trial court does have Third, Kilgore claims that his due process rights under both the state and federal constitutions were violated when he was allowed to waive his presence at jury selection. We are not persuaded by this contention. We have previously ruled that a trial court does not exceed its authority by allowing a defendant to knowingly and voluntarily waive the right to be present at any given stage of a proceeding. Peede v. State, 474 So.2d 808, 815 (Fla.1985), cert. denied, 477 U.S. 909, 106 S.Ct. 3286, 91 L.Ed.2d 575 (1986). In Peede we wrote:

                the responsibility of ensuring the competency of a defendant throughout the course of trial proceedings. 8  We note that, immediately prior to the trial in this case, Kilgore was examined and declared competent.  We find that his actions during trial were not such as to provide the lower court an adequate reason to doubt the pre-trial evaluation.  If anything, Kilgore's angry comments and reactions indicate that he was fully aware of the proceedings.  Indeed, his outburst near the end of the trial was contemporaneous with the presentation of damaging evidence by the prosecution.  We find there are no justifiable reasons in this record that would require the trial court, on its own motion, to direct another competency evaluation during the course of the trial
                

If a defendant's disruption of a capital trial can result in his removal and the continuation of the trial in his absence, then he should be able to knowingly and voluntarily waive his presence. Otherwise, a defendant who does not want to be present during the trial and who fully understands the consequences of his absence would be forced into the untenable position of having to disrupt the courtroom to such an extreme as to result in his removal, thereby seriously prejudicing his case.

Id.

The instant facts show that Kilgore requested to waive his right to be present. The prosecution protested and stated that the situation we now encounter would undoubtedly ensue. Kilgore's counsel, on the other hand, stated that Kilgore's waiver was free and voluntary. The trial judge then questioned Kilgore personally and concluded that Kilgore's waiver satisfied all constitutional standards. We find no error under these circumstances.

PENALTY PHASE

Three penalty-phase claims have been raised by Kilgore. He first asserts that he was denied an individualized...

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