Meeks v. State, 47533

• Citation: 339 So.2d 186
• Decision Date: 28 October 1976
• Docket Number: No. 47533,47533
• Parties: Douglas Ray MEEKS, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 186

339 So.2d 186

Douglas Ray MEEKS, Appellant, v. STATE of Florida, Appellee.

No. 47533.

Supreme Court of Florida.

Oct. 28, 1976.

John F. Howard, Fort Lauderdale, for appellant.

Robert L. Shevin, Atty. Gen., Wallace E. Allbritton and Andrew W. Lindsey, Asst. Attys. Gen., for appellee.

PER CURIAM.

This is a direct appeal from a murder conviction and death sentence. Our jurisdiction vests under Article V, Section 3(b)(1), Florida Constitution.

Appellant was convicted of murder in the first degree, robbery, assault with intent to commit murder, and possession of a firearm during commission of a felony. For these crimes he was sentenced respectively to (1) death, (2) life imprisonment, and (3) two consecutive terms of 15 years imprisonment.

At 8:00 p.m. on the night of November 6, 1974, the appellant and another man entered the Jr. Food Store in Perry, Florida. Appellant drew a gun on Dianne Allen, the cashier, while his companion grabbed Lloyd Walker, a 16-year-old boy who had been talking to Miss Allen before the two men entered. Miss Allen gave the appellant approximately $35 from the cash register. The robbers marched Allen and Walker to the bottle storage room, where the victims were forced to lie on the floor on their stomachs. Several shots were fired; Lloyd Walker died from his wounds six days later, but Dianne Allen survived her wounds and testified for the State at trial. She was unable to say that appellant Meeks actually fired the shots, although she identified him as the man with gun at the time the cash register was emptied.

At trial the prosecution produced witnesses who identified the decedent from a photograph marked for identification as 'Exhibit No. 2.' Then a pathologist testified for the State that he had performed the autopsy on the body identified to him as Lloyd Walker, and the doctor proceeded to identify the exhibit as a picture of a person upon whom he had performed the autopsy. This photograph, along with two others marked for identification as State's Exhibits 3 and 4, respectively, was then admitted into evidence over defense objection that a proper predicate had not been laid. The trial court also denied a request to strike testimony of another witness to the effect that he had learned of the fact and time of Lloyd Walker's death 'from Tallahassee.'

After the jury verdict of guilty on all four counts was returned, the second phase of the bifurcated trial mandated by Section 921.141, Florida Statutes (1975), was entered. Counsel for defendant objected to the prosecutor's use of conviction on the other three counts as constituting aggravating circumstances, but this objection was overruled by the court. Another statement of the prosecutor referring to creating a great risk of death to many persons, even though there were only two victims in the instant crime, was objected to and overruled as well. The jury came back with a recommendation of the death penalty, and the judge announced the sentences discussed above.

On this appeal Meeks raises four points which he contends require reversal of his conviction for first degree murder. The only issue which we find to merit any discussion is his allegation that the corpus delicti of the crime was not proven by competent evidence.

Appellant argues that there was no testimony of the death of Lloyd Walker by any person who knew of his own independent knowledge of that event. The fact of the victim's death was sought to be established only through photographs and through the testimony of the pathologist as summarized above. No 'chain of identification' was ever established. Appellant contends that the State's efforts in this area were inadequate under Jefferson v. Sweat, 76 So.2d 494 (Fla.1954), which states that the corpus delicti cannot be established by presumption.

There are three elements of the corpus delicti in homicide cases: (1) the fact of death, (2) the criminal agency of another person, and (3) the identity of the deceased. Lee v. State, 96 Fla. 59, 117 So. 699 (1928); Sims v. State, 184 So.2d 217 (Fla.2d DCA 1966). In Trowell v. State, 288 So.2d 506 (Fla.1st DCA 1973), the Court set out nine methods by which the fact of death and the identity of the deceased could have been proven. Two of these means of proof are:

'4. A photograph could have been taken of the cadaver which was autopsied which could later at trial have been identified by any person who knew him in his lifetime;

'5. A picture properly identified as Raymond Jones when alive could have been identified at trial as the person upon whom Doctor Klein performed the autopsy;'

At trial in the instant case a police officer testified that he personally knew the victim, had seen him on the date of the crime with a bullet hole in the back of the head, and identified the decedent from the photographs marked for identification as State's Exhibit No. 2. Another witness gave identical testimony. The pathologist gave the testimony summarized above and also identified individual wounds, reproduced in other photographs entered into evidence by the State as exhibits numbered 3 and 4, as belonging to the individual described to him as Lloyd Walker. A state law enforcement officer testified that he attended the autopsy on the person in the photograph, noting further that that person had a wristband identifying him as Lloyd Walker. In view of the foregoing, the State clearly satisfied the criteria of Lee, Sims and Trowell, supra, and proved the existence of corpus delicti beyond all reasonable doubt.

Appellant raises three points challenging the trial court's imposition of the death penalty. First, he suggests that the entire jury should have been polled as to whether a majority had recommended that sentence. This argument fails when it is realized that defense counsel specifically approved the procedure utilized by the court:

'CLERK: Advisory sentence recommending the death sentence, a majority of the Jury advise and recommend to the Court that it impose a sentence of death on Douglas Ray Meeks, the Defendant. Dated this 12th day of March, 1975 at Perry, Florida, signed Lester J. DeBusk, foreman of the Jury.

'MR. WILLIS (prosecuting attorney): The State prays judgment, Your Honor.

'MR. HOWARD (defense attorney): Your Honor, can we have the Jury polled as to the decision?

'MR. WILLIS: I have no objection to asking the foreman if seven of his number, if this is the advisory recommendation of seven of his number. I don't think the individual members should be polled, it would be an invasion of secrecy of their deliberations.

'COURT: Do you have anything else?

'MR. HOWARD: I don't want them to reveal their individual vote, as long as it is a majority.

'COURT: Mr. Foreman, do seven or more of your members of your Jury agree to the verdict that has just been rendered in open Court?

'FOREMAN: Yes, sir, they do.

'COURT: Does that answer your question?

'MR. HOWARD: Yes, Your Honor.

'COURT: The Defendant will rise. . . .'

Second, appellant argues that Section 921.141(5)(b)--setting forth as an aggravating circumstance the fact that '(t)he defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person'--should not be interpreted so as to include concurrent felony convictions; e.g., the convictions for robbery, assault to commit murder, and possessing a firearm during commission of a felony in the instant case. During the second phase of the trial, the state attorney referred to these convictions as previous convictions under Section 921.141(5) (b), Florida Statutes (1975), and also argued that the instant crime created a great risk of death to many persons, an aggravating circumstance under Section 921.141(5)(c). Meeks contends that these statements were improper and inflammatory.

The actual exchange at this point in the trial follows, with the prosecutor in the process of enumerating the aggravating circumstances under the death penalty statute:

"B,' the Defendant was previously convicted of another capital felony or of a felony involving the use of threat of violence to the person.

'That is not applicable in this case. He was not convicted of another capital felony or a felony involving the use of threat of violence, except you just convicted him of robbery. You just convicted him of assault with intent to commit murder on Dianne Allen. You just convicted him of the use of a firearm during the commission of a felony, which is a threat of violence to another person. So as to your deliberations at this point, judgment of verdicts of guilty have been returned against him for those three offenses that are not murder.

'MR. HOWARD: At this time I move that the remarks of the prosecutor be stricken. This is previous. We are talking about something happened at this time. The murder verdict was rendered first, which would therefore make the others subsequent and not previous. He is misinforming the Jury as to that particular aggravating circumstance. It should be stricken.

'MR. WILLIS: The advisory sentence is not rendered. It is previous to the advisory sentence.

'COURT: One moment.

'(Pause)

'COURT: Overruled.

'MR. WILLIS: So he has been found guilty by you of other felonies.'

The State points out that, while the prosecutor noted that the three other felony convictions did occur prior to the jury's rendering the advisory sentence, he specifically stated that subsection (b) did not apply in this case. Although it is true that contemporaneous convictions do not qualify as an aggravating circumstance Vel non under Section 921.141(5)(b), Florida Statutes (1975), we agree that the effect here could not have been prejudicial. The fact that the murder was committed in the course of a robbery was fair subject for comment, because this aspect of the crime demonstrated the existence of the aggravating circumstances enumerated in subsections (5)(d) (capital felony occurred while in commission of robbery) and (5)(f) (capital...