Mikenas v. State, 49928

• Decision Date: 09 November 1978
• Docket Number: No. 49928,49928
• Citation: 367 So.2d 606
• Parties: Mark MIKENAS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 606

367 So.2d 606

Mark MIKENAS, Appellant, v. STATE of Florida, Appellee.

No. 49928.

Supreme Court of Florida.

Nov. 9, 1978.

Rehearing Denied March 7, 1979.

Ellen M. Condon, Temple Terrace, for appellant.

Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

We review this case to determine whether the appellant was convicted and sentenced to death for first-degree murder and second-degree felony-murder in accord with statutes and court decisions. We affirm the convictions, but we remand the case to the trial court for resentencing because of improper application of aggravating circumstances. Article V, Section 3(b)(1), Florida Constitution.

On November 3, 1975, the appellant, Mark Mikenas, his brother, Vito Mikenas, and a friend, Mark Rinaldi, robbed a convenience store in Tampa, Florida. During the robbery the appellant carried a .38 caliber revolver. There were no customers in the store during the robbery. Upon entering the store, the appellant and his co-felons forced the lone store clerk into a back room of the building. Unknown to the robbers, Gary Barker, an auxiliary deputy sheriff, observed the robbery from a hidden position in the store. When an automobile unexpectedly arrived at the front of the store, appellant and his co-felons tried to exit the store through a back door. Barker, with drawn pistol, stopped them and placed them under arrest.

Seconds later, Anthony Williams, an off-duty Tampa policeman in civilian attire, came into the store through the front door. Barker called to Williams for help and informed him that a robbery was underway. Immediately thereafter, appellant and Barker fired at each other with both missing. Barker later killed Vito and wounded the appellant as they ran towards the front of the store. As appellant was falling to the floor, he shot and killed Anthony Williams, the Tampa police officer. Ann Williams, the wife of Anthony Williams, herself a police officer in uniform, arrested appellant. Barker arrested Rinaldi.

The indictment charged the appellant and Rinaldi, in two counts, with first-degree murder of Anthony Williams and with second-degree murder of Vito Mikenas who "was killed by a person or persons other than the person or persons engaged in the perpetration or attempt to perpetrate said robbery . . . ."

The appellant pleaded guilty to murder in the first degree for the death of Anthony Williams and pleaded nolo contendere to the charge of second-degree murder of his brother, Vito. Appellant reserved the right to appeal the applicability of Section 782.04(3), Florida Statutes (1975), the second-degree felony murder statute, to the facts of this case. The judge adjudged appellant guilty, and a jury selected for the sole purpose of recommending sentence, rendered a recommendation of death. The judge sentenced appellant to death.

The appellant contends that the trial judge committed reversible error by (1) abusing his discretion in allowing the deceased police officer's wife to testify from a wheelchair and in refusing to recuse himself; (2) holding that Section 782.04(3), Florida Statutes (1975), the second-degree felony murder statute, applied to the facts of this case; and (3) misapplying the aggravating and mitigating circumstances listed in Section 921.141, Florida Statutes.

I

When Ann Williams, the police officer who arrested appellant and the wife of the deceased police officer, was called as a witness, appellant moved for a continuance because she was in a wheelchair. The motion for continuance was denied. The court did, however, give a cautionary instruction to the jury indicating that the physical condition of Ann Williams was in no way related to the homicide. The court stated during the course of that instruction that "her medical or physical condition is something foreign to and not related in any way to the incident."

We find no error in the trial judge allowing this witness to testify from a wheelchair. The jury understood that the incident on trial was not the reason for her inability to stand. She had ample relevant evidence to present to the jury as to the "triggerman." In the absence of a showing that the trial judge abused his discretion, the ruling will not be disturbed. Zide v. State, 212 So.2d 788 (Fla. 3d DCA 1968), cert. denied 394 U.S. 911, 89 S.Ct. 1026, 22 L.Ed.2d 223 (1969). The appellant has failed to make an adequate showing.

The appellant also alleges that the trial judge should have recused himself because prior to the penalty proceedings in this case, while addressing Rinaldi, the trial judge stated:

Fortunately for you, son, the only thing that probably saved you from a possible death sentence is the fact that when that officer told you to stop, you stopped, and, secondly, that you didn't have the firearm.

These remarks took place while Rinaldi was being sentenced for murder in the second-degree. We find no merit in the appellant's contention that these remarks, made to his co-defendant at sentencing, indicated a bias on the part of the trial judge regarding the sentence that appellant should receive. The jury, unaware of this remark, recommended death.

II

Section 782.04(3), Florida Statutes (1975), reads as follows:

When A person is killed in the perpetration of, or in the attempt to perpetrate, any arson, involuntary sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony shall be guilty of murder in the second degree, which constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084. (Emphasis added.)

The appellant contends that Section 782.04(3), Florida Statutes (1975) is inapplicable to the facts of his case. He, in effect, says that it is clear from the evidence that Barker, the auxiliary deputy sheriff, shot and killed Vito. If this is true, he says, and Vito is a co-perpetrator, no one can be charged with the murder of Vito. He argues that only "innocent" persons killed during the perpetration of a felony were intended by the Legislature to be included in the phrase "a person is killed." From this posture, he asserts that his motion to dismiss should have been granted.

The language of Section 782.04(3) is not ambiguous or vague. It refers to "a person" and must mean "any person." If the Legislature had intended something other than this, it could have inserted the word "innocent."

We are mindful that State v. Williams, 254 So.2d 548 (Fla. 2nd DCA 1971), held that under Section 782.04(1), Florida Statutes, the first-degree felony-murder statute, only the death of innocent persons is sufficient to sustain a charge of first-degree felony-murder against a felony perpetrator. The Second District Court stated in that case:

The test we suggest is predicated upon the obvious ultimate purpose of the felony murder statute itself which is, we think, to prevent the death of innocent persons likely to occur during the commission of certain inherently dangerous and particularly grievous felonies. (At 550.)

Since we are here concerned with subsection (3) of 782.04, the second-degree felony murder statute, rather than subsection (1), the first-degree felony murder statute, we need not determine whether the reasoning and rationale in State v. Williams, supra, is correct. We reserve decision on that point until the question is squarely presented. It is sufficient here to hold that there is nothing in the clear language or history of Section 782.04(3) which limits its application to innocent persons killed by one perpetrating or attempting to perpetrate a felony.

III

In sentencing the appellant to death, the court made the following findings of fact in support of the death penalty:

"The Court having carefully considered and reviewed the plea of Guilty entered by the defendant MARK MIKENAS, in this cause to the charge of Murder in the First Degree, together with the presentence investigation, testimony, evidence and the jury's recommendation of the death penalty in this case, and in consideration thereof makes the following findings of fact:

"AS TO AGGRAVATING CIRCUMSTANCES:

"(A) That the defendant, MARK MIKENAS, murdered Anthony Williams while engaged in the commission of a felony, to-wit: robbery.

"(B) That the defendant, MARK MIKENAS, committed the crime of murder while in the perpetration of the crime of robbery for pecuniary gain.

"(C) That the defendant, MARK MIKENAS, had been previously convicted of the offense of robbery in the State of New York for which he was sentenced to a prison term of four (4) years and at the time of the offenses committed in this case he was on parole on the New York sentence and there was outstanding against him a parole violation warrant.

"(D) That the defendant, MARK MIKENAS, in committing the crime for which he is to be sentenced, knowingly created a great risk of death to many persons.

"(E) That the crime for which the defendant, MARK MIKENAS, is to be sentenced was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.

"(F) That the defendant, MARK MIKENAS, has a substantial history of prior criminal activity.

"AS TO MITIGATING CIRCUMSTANCES:

"The age of the defendant, MARK MIKENAS, to-wit: age 22 years, would in the Court's opinion be the only mitigating circumstance shown by the defendant, MARK MIKENAS, in this case.

"IN CONSIDERATION THEREOF, it is the opinion and determination of the Court, and the Court so finds, that the aggravating circumstances far outweigh the mitigating circumstances in this case and, therefore, the jury's recommendation of the death penalty is appropriate in the case of the...