Lamb v. State
Decision Date | 01 September 1988 |
Docket Number | No. 70369,70369 |
Citation | 532 So.2d 1051,13 Fla. L. Weekly 530 |
Parties | 13 Fla. L. Weekly 530 Wilbur Aaron LAMB, Appellant, v. STATE of Florida, Appellee. |
Court | Florida Supreme Court |
James B. Gibson, Public Defender and Michael S. Becker, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen. and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
We have for review Wilbur Aaron Lamb's convictions for first-degree murder, burglary with assault, and grand theft. The court sentenced Lamb to death for the murder. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm Lamb's convictions, but remand for resentencing.
Karl Ebernez was murdered and his home burglarized in January 1986. The cause of death was numerous blows to the head, resulting in depressed skull fractures and hemorrhaging. Seventeen-year-old Lamb was indicted and a jury returned guilty verdicts for first-degree premeditated murder, felony murder, burglary with assault, and grand theft. The court imposed the jury's recommended sentence of death for the first-degree murder, forty years imprisonment for the burglary, and five years imprisonment for the grand theft. The court entered no adjudication on the felony-murder guilty verdict.
Lamb challenges his first-degree murder conviction, arguing that he was unconstitutionally indicted and found guilty of both first-degree premeditated and felony murder stemming from a single death. The jury's verdict that he was guilty of both is supported by the evidence, and there is no reason why a defendant cannot premeditate a murder committed during the course of a felony. The trial court correctly adjudicated him guilty of only one murder (premeditated). Lamb also argues that the court improperly admitted statements and evidence given shortly after arrest and that the court committed numerous errors at trial which cumulatively require a new trial. We find these arguments meritless. Having reviewed the record, briefs, and arguments, we affirm Lamb's convictions.
In aggravation, the court found that: (1) Lamb was previously convicted of a violent felony based on his contemporaneous conviction for burglary with assault; (2) the murder was heinous, atrocious, and cruel; (3) the murder was cold, calculated and premeditated; and (4) the murder was committed during a burglary. The court found that the codefendant's plea-bargained seventeen-year prison sentence was a mitigating factor, but that the aggravating factors outweighed those in mitigation. A death sentence was imposed in keeping with the jury's recommended sentence.
Lamb challenges the sentence, arguing that his contemporaneous conviction for burglary with assault does not support a finding that he has been previously convicted of a violent felony. We agree. We recently held in Perry v. State, 522 So.2d 817, 820 (Fla.1988), that it is "improper to aggravate for a prior conviction of a violent felony when the underlying felony is part of the single criminal episode against the single victim of the murder for which the defendant is being sentenced." See also Patterson v. State, 513 So.2d 1257 (Fla.1987); Wasko v. State, 505 So.2d 1314 (Fla.1987).
Lamb next argues that the murder was not cold, calculated, and premeditated. The evidence, however, shows that Lamb planned the burglary and theft; that he planned violence to the victim in perpetrating the theft; that he brought a weapon to the scene, and once there, exchanged it for one better suited for the crime; and that, after searching the victim's home and committing the felony, he concealed himself and waited for the victim to return because of his pique at the frugal results of the burglary. Further, there was evidence that, after leaving the scene, Lamb's companion suggested that they call an ambulance for the victim. Lamb rejected the idea, reasoning that their voices might be recorded and traced. This evidence supports the court's finding of the heightened premeditation required for application of this aggravating factor. See, e.g., Huff v. State, 495 So.2d 145 (Fla.1986) ( ); Davis v. State, 461 So.2d 67 (Fla.1984) (, )cert. denied, 473 U.S. 913, 105 S.Ct. 3540, 87 L.Ed.2d 663 (1985). See also Eutzy v. State, 458 So.2d 755 (Fla.1984) (, )cert. denied, 471 U.S. 1045, 105 S.Ct. 2062, 85 L.Ed.2d 336 (1985).
There is no question that the trial court correctly found in aggravation that the murder was committed during a burglary. Further, we affirm the finding that the murder was heinous, atrocious, and cruel. The victim had a defensive wound. He was struck six times in the head with a claw hammer. Even though Lamb delivered each blow with sufficient force to penetrate the skull, the victim did not die instantaneously. The evidence shows that he fell to his knees and then to the floor after Lamb pulled his feet out from under him. The victim moaned, rolling his head from side to side, until Lamb kicked him in the face. This evidence supports the court's finding that the murder was heinous, atrocious, and cruel. See, e.g., Roberts v. State, 510 So.2d 885 (Fla.1987) (, )cert. denied, 485 U.S. 943, 108 S.Ct. 1123, 99 L.Ed.2d 284 (1988); Wilson v. State, 493 So.2d 1019 (Fla.1986) ( ); Thomas v. State, 456 So.2d 454 (Fla.1984) ( ); Heiney v. State, 447 So.2d 210 (Fla.) (seven claw hammer blows to victim's head and defensive wounds support finding that murder was heinous, atrocious, and cruel), cert. denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984).
The trial court considered numerous mitigating factors but found only one, i.e., that Lamb's codefendant received a plea-bargained sentence of seventeen years. Lamb claims that the court erred in failing to also find his age (seventeen years and ten months) as a mitigating factor. Lamb introduced evidence which, in conjunction with his age, arguably supports his claim that he was not functioning as an adult. This information included evidence that he had drug and emotional problems, ignored his school work and eventually quit school, and lived with his parents until approximately six weeks prior to the murder. The trial court discounted this evidence, stating in its sentencing order:
There is nothing to indicate that the age of the defendant affected his mental or emotional maturity or affected his ability to take responsibility for his own acts or to appreciate the consequences flowing...
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