Miller v. State, 85744

Decision Date16 July 1998
Docket NumberNo. 85744,85744
Citation713 So.2d 1008
Parties23 Fla. L. Weekly S389 Willie MILLER, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

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

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

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 firstdegree 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 she could see through the window that a man jumped 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 life imprisonment for the attempted murder of Jung, the two counts of armed robbery, and the armed burglary (three-year minimum mandatory 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 because 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.

Here, there is no evidence that the grocery store was not open; therefore Miller was "licensed or invited to enter." In Robertson v. State, 699 So.2d 1343 (Fla.1997), we cited the Third District Court of Appeal's analysis in Ray v. State: "[Once] consensual entry is complete, a consensual 'remaining in' begins, and any burglary conviction must be bottomed on proof that consent to 'remaining in' has been withdrawn." Ray v. State, 522 So.2d 963, 965 (Fla. 3d DCA 1988). Miller entered the grocery store when it was open, and on this record we can find no evidence that consent was withdrawn. In arguing Miller was guilty of burglary, the State's argument for withdrawal of consent was:

As to burglary, the state must show that the defendant entered or remained in a structure owned or in the possession of James Jung, the store. Did not have the permission or consent of James Jung or anyone else authorized to allow him to come in there.

Now it's an open store, yes, at first, but you heard Mr. Bledsoe ask Mr. Jung did you give them or anyone any permission to come in your store, pull guns on you and your security guard, shoot you both and take your money and take his gun?

Well, no, of course not, so at the time they committed the crime Willie Miller was remaining in a structure and did not have the permission or consent of Mr. Jung.

During the penalty phase, when arguing for the imposition of the burglary aggravator, the State argued:

Well, you found this aggravating circumstance by your verdict three weeks ago.... Sometimes they overlap a little bit.... I submit to you that's an automatic aggravating circumstance. It really is.

There is a policy behind that, why that's an aggravating circumstance, and this is what it is: There are certain crimes that are so inherently dangerous that if somebody is killed during the course of the commission of that crime whether it be accidental or otherwise that perpetrator is going to be held accountable for it. That's felony murder.

Recall the evidence. This defendant [and] Samuel Fagin didn't go into that store to buy any goods. They went in there for one reason and that's to commit crimes, and Mr. Jung told you I didn't invite anybody in to my store to commit crimes.

That just stands to reason. My store is open to the public to come in and want to buy something, not to take my money, not to shoot me, not to shoot my friend and my security guard, James Wallace.

....

That second aggravating circumstance I submit to you once again it's automatic. You found it in your verdict three weeks ago. It's a heavy, heavy, heavy aggravating circumstance.

This is not sufficient. It is improbable that there would ever be a victim who gave an assailant permission to come in, pull guns on the victim, shoot the victim, and take the victim's money. To allow a conviction of burglary based on the facts in this case would erode the consent section of the statute to a point where it was surplusage: every time there was a crime in a structure open to the...

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7 cases
  • Zack v. State
    • United States
    • Florida Supreme Court
    • January 6, 2000
    ...instruction that Zack could be convicted of felony murder based upon the predicate felony of burglary. Zack relies on Miller v. State, 713 So.2d 1008 (Fla.1998), to argue that Smith consented to his entry into her house and that his attack on Smith, standing alone, was insufficient to revok......
  • Gordon v. State
    • United States
    • Florida District Court of Appeals
    • October 13, 1999
    ...reasons, we affirm the judgment and sentence of the trial court. STONE and POLEN, JJ., concur. 1. Gordon's brief cites Miller v. State, 713 So.2d 1008 (Fla.1998). The court issued a revised opinion, Miller v. State, 733 So.2d 955 (Fla.1998). This opinion's reference to Miller is to the revi......
  • McCoy v. State
    • United States
    • Florida District Court of Appeals
    • December 4, 1998
    ...evidence the jury can rationally rely on to infer that consent was withdrawn besides the fact that a crime occurred." Miller v. State, 713 So.2d 1008, 1011 (Fla.1998); see Collett, 676 So.2d at 1047. Here, consent was not withdrawn explicitly or by the victim's actions. Where the State char......
  • Brunache v. State
    • United States
    • Florida District Court of Appeals
    • November 25, 1998
    ...Assistant Attorney General, for Appellee. Before SCHWARTZ, C.J., and SHEVIN and SORONDO, JJ. PER CURIAM. Affirmed. See Miller v. State, 713 So.2d 1008 (Fla.1998); Ray v. State, 522 So.2d 963 (Fla. 3d DCA), review denied, 531 So.2d 168 ...
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