McCray v. State, No. 59691

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM; SUNDBERG; ADKINS
Citation416 So.2d 804
PartiesErvin McCRAY, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 59691
Decision Date24 June 1982

Page 804

416 So.2d 804
Ervin McCRAY, Appellant,
v.
STATE of Florida, Appellee.
No. 59691.
Supreme Court of Florida.
June 24, 1982.

Richard L. Jorandby, Public Defender and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen. and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.

Page 805

PER CURIAM.

This is an appeal by Ervin McCray from his conviction of first-degree murder and from the trial judge's imposition of the death sentence after the jury had recommended life imprisonment. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. We affirm the conviction, but direct that the death sentence be reduced to a sentence of life imprisonment in accordance with the jury's recommendation.

The record reflects the following facts. Shortly before 7:00 p. m. on December 17, 1980, appellant McCray, Willie Footman, Jerry Davis, and Sammy Walker drove to the store managed by the victim, Bernard Fetch. Appellant and Davis entered the store and asked to see some guns. The two left the store soon after Fetch told them that he had already put the guns away for the night. Davis then drove the men down a back road behind the store's rear parking lot and stopped the car. McCray and Footman left the car and walked back to the victim's van, which was parked in the rear parking lot. Appellant broke a window of the van and removed several boxes of guns, took them to the edge of the woods beside the road, and returned to Davis's car.

Davis drove the group back into the rear parking lot where Fetch, preparing to leave for the night, sat in his van talking with Thomas Cartwright. Sammy Walker testified that McCray jumped from the car, saying that he didn't want to leave empty-handed. Cartwright testified that a man he later identified as McCray approached the van, yelled, "This is for you, mother fucker," and shot Fetch three times in the abdomen. According to Cartwright, Fetch fired back at McCray after he was shot. Walker testified, however, that Fetch fired his weapon before appellant "fired back" at him. No money was taken from Fetch.

Appellant, testifying in his own behalf, asserted that Walker had broken into the van and that he and Walker had taken the guns into the woods. Appellant further stated that he left with Davis immediately after the guns were taken into the woods, that they drove to the Blue Chip Bar, and that he remained at the bar for the rest of the evening. Appellant produced two witnesses who testified that he was at the Blue Chip Bar at about 7:10 p. m. on the night of the killing.

Codefendant Walker, who was eighteen years of age, negotiated a plea before trial. He was placed on probation and served as the key witness for the state in the prosecution. The testimony of codefendants Footman and Davis, who stood trial with appellant on charges of first-degree murder and attempted armed robbery, generally corroborated that of Walker. The jury acquitted Footman and Davis of all charges. Appellant, although found not guilty of attempted armed robbery, was convicted of first-degree murder.

Neither the state nor the appellant presented any evidence at the sentencing hearing. After arguments by counsel, the jury recommended a sentence of life imprisonment for McCray. The judge did not accept the jury's life recommendation, but rather imposed the death sentence upon finding three aggravating circumstances: (1) the crime was committed for pecuniary gain; (2) the crime was especially heinous, atrocious, and cruel; and (3) the crime was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. The trial judge found no mitigating circumstances.

Trial Phase

Appellant asserts that his conviction should be vacated upon four grounds: (1) the trial court abused its discretion in denying his motion to sever his trial from that of his two codefendants; (2) the trial court erred in limiting his cross-examination and impeachment of the eyewitness Cartwright; (3) the trial judge erroneously denied his motion to compel the designation of a more specific time in the statement of particulars; and (4) the trial judge erred in instructing the jury on felony murder. We find the last three points to be without merit and to warrant no further comment by this Court. The severance issue, however, requires a full discussion.

Page 806

The trial court, in denying the motion for severance, stated: "I think the rules suggest that people charged together ought to be tried together unless there is some compelling reason to show why they should not be tried together, and I am not satisfied I have been shown that good reason." Appellant argues that the trial court should have granted his motion for severance under the provisions of Florida Rule of Criminal Procedure 3.152(b)(1) because the defenses of codefendants Footman and Davis were completely antagonistic to his defense. The state responds by asserting that severance is not required simply because one defendant is blaming the other for the crime. In addition, the state claims that there was no prejudice since, even without the codefendants' testimony,...

To continue reading

Request your trial
78 practice notes
  • State v. Palmer, No. 84-733
    • United States
    • Supreme Court of Nebraska
    • December 29, 1986
    ...(Emphasis Page 744 supplied.) The crime was in fact brutal, but the statute requires more." Later, in the case of McCray v. State, 416 So.2d 804 (Fla.1982), [224 Neb. 342] the Florida Supreme Court again reviewed its statute, nearly identical to Nebraska's, and reversed a sentence of d......
  • Herzog v. State, No. 61513
    • United States
    • United States State Supreme Court of Florida
    • September 22, 1983
    ...characterized as executions or contract murders, although that description is not intended to be all-inclusive." McCray v. State, 416 So.2d 804, 807 (Fla.1982) (citing Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982); Combs v......
  • Saavedra v. State, No. 88-561
    • United States
    • Court of Appeal of Florida (US)
    • April 4, 1991
    ...of the complaining witness, appellant moved again for severance, which the trial court denied, relying generally on McCray v. State, 416 So.2d 804 (Fla.1982). In that case, the defendant moved for severance of defendants on the basis of a co-defendant's inculpatory statements that the defen......
  • Hunter v. State, No. SC06-1963.
    • United States
    • United States State Supreme Court of Florida
    • September 25, 2008
    ...other and are subject to cross-examination upon testifying, thus affording the jury access to all relevant facts." McCray v. State, 416 So.2d 804, 806 (Fla. 1982). As stated, each defendant testified at trial; Salas and Hunter provided conflicting testimony as to who did what, while Vi......
  • Request a trial to view additional results
78 cases
  • State v. Palmer, No. 84-733
    • United States
    • Supreme Court of Nebraska
    • December 29, 1986
    ...(Emphasis Page 744 supplied.) The crime was in fact brutal, but the statute requires more." Later, in the case of McCray v. State, 416 So.2d 804 (Fla.1982), [224 Neb. 342] the Florida Supreme Court again reviewed its statute, nearly identical to Nebraska's, and reversed a sentence of d......
  • Herzog v. State, No. 61513
    • United States
    • United States State Supreme Court of Florida
    • September 22, 1983
    ...characterized as executions or contract murders, although that description is not intended to be all-inclusive." McCray v. State, 416 So.2d 804, 807 (Fla.1982) (citing Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982); Combs v......
  • Saavedra v. State, No. 88-561
    • United States
    • Court of Appeal of Florida (US)
    • April 4, 1991
    ...of the complaining witness, appellant moved again for severance, which the trial court denied, relying generally on McCray v. State, 416 So.2d 804 (Fla.1982). In that case, the defendant moved for severance of defendants on the basis of a co-defendant's inculpatory statements that the defen......
  • Hunter v. State, No. SC06-1963.
    • United States
    • United States State Supreme Court of Florida
    • September 25, 2008
    ...other and are subject to cross-examination upon testifying, thus affording the jury access to all relevant facts." McCray v. State, 416 So.2d 804, 806 (Fla. 1982). As stated, each defendant testified at trial; Salas and Hunter provided conflicting testimony as to who did what, while Vi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT