Miller v. State, 85,744.

• Decision Date: 16 July 1998
• Docket Number: No. 85,744.,85,744.
• Parties: Willie MILLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

733 So.2d 955

Willie MILLER, Appellant, v. STATE of Florida, Appellee.

No. 85,744.

Supreme Court of Florida.

July 16, 1998.

Rehearing Denied April 1, 1999.

Nancy Daniels, Public Defender, Second Judicial Circuit, Tallahassee, Florida, and Bill Salmon, Gainesville, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Gypsy Bailey and Mark S. Dunn, Assistant Attorneys General, Tallahassee, Florida, for Appellee.

REVISED OPINION

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Willie Miller. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Miller was found guilty of all five counts charged: first-degree murder (against victim James Wallace), attempted first-degree murder with use of a firearm (against victim James Jung), armed robbery with a firearm (against victim James Jung), burglary (including an assault while using a firearm), and robbery with a firearm (against James Wallace). On April 28, 1995, the judge sentenced Miller to death following a twelve-to-zero jury recommendation.

Miller (34 years old) and his nephew Samuel Fagin (16 years old) entered the Jung Lee grocery store at around 4:30 p.m. on July 5, 1993. Miller's brother had given them the idea to rob the store and had given Miller and Fagin a .22 caliber rifle. James Jung (who ran the store) testified that he, both his parents (who owned the store), the store's security guard (James Wallace), Mary McGriff, and two children were inside.

Fagin testified that after entering, Miller put the rifle up to Wallace's face, then Fagin took Wallace's .38 caliber gun. Fagin said he heard a gunshot, then saw blood coming from Wallace's face. Fagin then shot James Jung—he claimed accidentally —who was behind the counter. Miller took the money from the cash register. Miller and Fagin then left. Jung was hospitalized but ultimately recovered from the gunshot wound. Wallace developed other ailments during his hospitalization and died on January 1, 1994. His doctor testified that he died of pneumonia and respiratory failure; the medical examiner testified that the cause of death was a gunshot wound to the head.

Fagin testified that he and Miller split the money. Eric "Bobby" Harrison testified that he bought the .38 caliber gun from Fagin. Also testifying were: firearms experts, a fingerprint expert who testified that a print on the cash tray belonged to Miller, and several jailhouse informants who testified as to conversations with Miller where he said he had shot Wallace. Sheila Rose testified that she was across the street from the grocery when her grandmother Mary McGriff ran over and told her Wallace had been shot. Rose said that through the window she saw a man jump across the counter and that then she saw two men exit the store. She described both men. The defense did not call any witnesses, and Miller did not testify in his own defense. The jury deliberated for approximately two hours before returning the guilty verdicts.

At the penalty phase, the State called court operations supervisor Hanzelon to testify as to Miller's prior armed robbery conviction. The State called Fertgus, who testified that the fingerprints affixed to the prior judgment matched the prints he took from Miller in 1995, and Detective Goodbred, who recounted the details of the 1984 offense. The defense called no witnesses. The jury deliberated for half an hour before returning its twelve-to-zero vote.

After submitting sentencing memoranda, the defense submitted a copy of Miller's school records at the sentencing hearing and noted that Miller had been examined by Dr. Krop and Dr. Miller. At sentencing, the defense introduced a letter from Miller's G.E.D. instructor. The court sentenced Miller to death on the first-degree murder count, finding three aggravators: prior violent felony conviction, felony murder, and pecuniary gain. The court found no statutory mitigation, but considered nonstatutory mitigation presented in the P.S.I. and defense memorandum: family background and abuse as a child. The court found that the aggravation outweighed the mitigation.

The court also sentenced Miller to sentences of life imprisonment for the attempted murder of Jung, the two counts of armed robbery, and the armed burglary, with a three-year mandatory minimum on the attempted murder charge based on use of a firearm. The trial court departed from the guidelines, listing as reasons the unscored capital conviction, the excessive physical trauma to the victims, and the force used in committing the robbery.

Miller raises no guilt phase issues and six penalty phase issues. He argues: (1) there was improper weighing and evaluation of mitigating evidence in that the mitigation outweighed the aggravation; (2) the prosecutor's "mercy is inappropriate" comment was a misstatement of the law; (3) the victim impact evidence did not comply with section 921.141(7), Florida Statutes (1995), and should have been prohibited under Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987); (4) the death sentence is disproportionate; (5) the sentencing order failed to expressly weigh and evaluate each mitigating circumstance; and (6) there was ineffective assistance of counsel because of failure to adequately investigate and present additional mitigation, including mental retardation, which was readily available information.

Although Miller raises no guilt phase issues, we have conducted an independent review of the entire record and find competent and substantial evidence to support the convictions of murder, attempted murder, armed robbery, and robbery. We reverse the conviction for burglary, for the reasons expressed below. We vacate the death sentence and remand for a new sentencing proceeding.

First, we address Miller's burglary conviction. Section 810.02(1), Florida Statutes (1993), defines burglary:

Burglary means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.

This Court has construed the consent clause of the statute (beginning with "unless") to be an affirmative defense. See State v. Hicks, 421 So.2d 510, 511 (Fla. 1982). Thus, the burden is on the defendant to establish there was consent.

In Ray v. State, 522 So.2d 963 (Fla. 3d DCA 1988), the Third District Court of Appeal formulated the proposition that once consent is established, the State can demonstrate that consent had been withdrawn. There has been some confusion regarding the application of Ray to cases involving the "open to the public" affirmative defense.¹ To resolve this conflict, we hold that if a defendant can establish that the premises were open to the public, then this is a complete defense. See Collett v. State, 676 So.2d 1046, 1047 (Fla. 1st DCA 1996) ("But premises are either open to the public or they are not, and the fact that persons with criminal intent have not been given permission to enter has no effect on whether premises are open to the public. Otherwise, every time a person entered a structure that was open to the public with the intent to commit a crime, the person would have committed a burglary—a result directly in conflict with the express language of section 810.02(1)."); Ray, 522 So.2d at 967 n. 6 ("That the premises are open to the public is a complete defense to a burglary charge...."). Whether or not consent may have been withdrawn, either by direct or circumstantial evidence, is not an issue. The only relevant question is whether the premises were open to the public at the time the defendant entered or remained with the intent to commit an offense therein.

By applying this rule to the present case, we determine that Miller's burglary conviction was improper. The State conceded that the grocery store was open to the public. Hence, Miller met his burden of establishing the affirmative defense of consent. Accordingly, we reverse Miller's burglary conviction.

Because we reverse the burglary conviction, the "committed during the course of a burglary" aggravator is invalid. On the basis of this record, we cannot find this improper aggravator to be harmless and therefore a complete new penalty phase proceeding before a jury is required.

From our review of the record, it appears that Miller should be provided with different counsel for the new penalty phase proceeding. New counsel should be appointed within thirty days of this opinion becoming final. New counsel should be allowed reasonable...