McCrae v. Wainwright, 61865
| Decision Date | 14 September 1982 |
| Docket Number | No. 61865,61865 |
| Citation | 422 So.2d 824 |
| Parties | James Curtis McCRAE, Petitioner, v. Louie L. WAINWRIGHT, Respondent. |
| Court | Florida Supreme Court |
Robert H. Dillinger of Stolba, Lumley & Dillinger, St. Petersburg, for petitioner.
Jim Smith, Atty. Gen. and Robert J. Landry, Asst. Atty. Gen., Tampa, for respondent.
This cause is before the Court on McCrae's petition for a writ of habeas corpus and a stay of execution. Petitioner is now imprisoned under sentence of death pursuant to judgment and sentence affirmed by this Court in McCrae v. State, 395 So.2d 1145 (Fla.), cert. denied, 454 U.S. 1041, 102 S.Ct. 583, 70 L.Ed.2d 486 (1981). Petitioner raises three issues going to the legality of his judgment and sentence. The asserted grounds for relief are: (1) that the trial court committed fundamental error by not fully instructing the jury on the elements of the underlying felony in this felony murder case, (2) that petitioner's appellate counsel was ineffective in that he did not raise the asserted fundamental error on appeal, and (3) that this Court violated petitioner's rights by receiving non-record information concerning appellants in pending capital appeals.
Petitioner was charged with first-degree murder. The indictment was in two counts (though there was but one homicide), one charging premeditated murder and the other felony murder. The first count of the indictment read as follows:
[O]ne JAMES CURTIS McCRAE did unlawfully, feloniously and from a premeditated design to effect the death of one MARGARET MEARS, did strike, beat, bruise and wound the said MARGARET MEARS, thus and thereby inflicting on and upon the head or body of the said MARGARET MEARS certain mortal wounds of which said mortal wounds the said MARGARET MEARS did between October 13, 1973 and October 15, 1973 die; contrary to the statute in such case made and provided and against the peace and dignity of the State of Florida.
The second count, charging felony murder, was worded as follows [O]ne JAMES CURTIS McCRAE did unlawfully and feloniously effect the death of MARGARET MEARS in perpetrating or attempting to perpetrate a rape, to-wit: did unlawfully and feloniously ravish and carnally know a female of more than ten (10) years of age, to-wit: MARGARET MEARS by force and against her will, contrary to the statute in such case made and provided and against the peace and dignity of the State of Florida.
For the count charging petitioner with premeditated murder, the court instructed the jury in accordance with the standard jury instructions. With regard to the second count, charging felony murder, the court gave the following general felony murder instruction:
The killing of a human being in committing, or in attempting to commit any arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping is murder in the first degree even though there is no premeditated design or intent to kill.
If a person kills another while he is trying to do or commit any arson, rape, robbery, burglary, the abominable detestable crime against nature or kidnapping, or while escaping from the immediate scene of such crime the killing is in the perpetration or in the attempt to perpetrate such arson, rape, robbery, burglary, abominable and detestable crime against nature or kidnapping and is murder in the first degree.
The instructions to the jury also included a reading of the indictment as set out above. The indictment was given to the jury, along with the forms for the verdict, to take with it into deliberations. The second count of the indictment, charging felony murder, specified the underlying felony and defined it in terms of its essential elements.
The trial court, in instructing the jury on the form of the verdict, advised that the jury could return a verdict as to the two counts collectively or individually. The court provided separate verdict forms for verdicts of (1) not guilty, (2) guilty on both count one and count two, (3) guilty on count one, (4) guilty on count two, and (5) guilty of lesser included offenses. The jury returned a verdict finding petitioner guilty as charged in count two, the felony murder count. The other verdict forms were left blank.
Petitioner argues that under State v. Jones, 377 So.2d 1163 (Fla.1979), and Robles v. State, 188 So.2d 789 (Fla.1966), the trial...
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