Mungin v. State

Decision Date07 September 1995
Docket NumberNo. 81358,81358
Parties22 Fla. L. Weekly S107 Anthony MUNGIN, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Nancy A. Daniels, Public Defender and Steven A. Been, Assistant Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Attorney General and Curtis M. French, Assistant Attorney General, Tallahassee, for appellee.


Anthony Mungin, a prisoner under a sentence of death, appeals his conviction of first-degree murder and the penalty imposed. We have jurisdiction based on article V, § 3(b)(1) of the Florida Constitution.

We affirm both the conviction and the death sentence.

Betty Jean Woods, a convenience store clerk in Jacksonville, was shot once in the head on September 16, 1990, and died four days later. There were no eyewitnesses to the shooting, but shortly after Woods was shot a customer entering the store passed a man leaving the store hurriedly with a paper bag. The customer, who found the injured clerk, later identified the man as Mungin. After the shooting, a store supervisor found a $59.05 discrepancy in cash at the store.

Mungin was arrested on September 18, 1990, in Kingsland, Georgia. Police found a .25-caliber semiautomatic pistol, bullets, and Mungin's Georgia identification when they searched his house. An analysis showed that the bullet recovered from Woods had been fired from the pistol found at Mungin's house.

Jurors also heard Williams rule 1 evidence of two other crimes. They were instructed to consider this evidence only for the limited purpose of proving Mungin's identity.

First, William Rudd testified that Mungin came to the convenience store where he worked on the morning of September 14, 1990, and asked for cigarettes. When Rudd turned to get the cigarettes, Mungin shot him in the back. He also took money from a cash box and a cash register. Authorities determined that an expended shell recovered from the store came from the gun seized in Kingsland.

Second, Thomas Barlow testified that he saw Meihua Wang Tsai screaming in a Tallahassee shopping center on the afternoon of September 14, 1990. Tsai had been shot while working at a store in the shopping center. A bullet that went through Tsai's hand and hit her in the head had been fired from the gun recovered in Kingsland.

The judge instructed the jury on both premeditated murder and felony murder (with robbery or attempted robbery as the underlying felony), and the jury returned a general verdict of first-degree murder.

In the penalty phase, several witnesses who knew Mungin while he was growing up testified that he was trustworthy, not violent, and earned passing grades in school. Mungin lived with his grandmother from the time he was five, but Mungin left when he was eighteen to live with an uncle in Jacksonville. An official from the prison where Mungin was serving a life sentence for the Tallahassee crime testified that Mungin did not have any disciplinary problems during the six months Mungin was under his supervision. Harry Krop, a forensic psychologist, testified that he found no evidence of any major mental illness or personality disorder, although Mungin had a history of drug and alcohol abuse. Krop said he thought Mungin could be rehabilitated because of his normal life before drugs, his average intelligence, and his clean record while in prison.

The jury recommended death by a vote of seven to five. The trial judge followed the jury's recommendation and sentenced Mungin to death. In imposing the death penalty, the trial judge found two aggravating factors: (1) Mungin had previously been convicted of a felony involving the use or threat of violence to another person; 2 and (2) Mungin committed the capital felony during a robbery or robbery attempt and committed the capital felony for pecuniary gain. 3 The trial judge found no statutory mitigation and gave minimal weight to the nonstatutory mitigation that Mungin could be rehabilitated and was not antisocial.

Mungin raises nine issues on this direct appeal. 4


We first address Issue 2, where Mungin argues that the evidence was not sufficient to support first-degree murder. The trial judge instructed the jury on both premeditated and felony murder, and the jury returned a general verdict of first-degree murder. We agree with Mungin only that the judge erred in denying his motion for judgment of acquittal as to premeditation.

Premeditation is "a fully formed conscious purpose to kill that may be formed in a moment and need only exist for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act." Asay v. State, 580 So.2d 610, 612 (Fla.), cert. denied, 502 U.S. 895, 112 S.Ct. 265, 116 L.Ed.2d 218 (1991).

In a case such as this one involving circumstantial evidence, a conviction cannot be sustained--no matter how strongly the evidence suggests guilt--unless the evidence is inconsistent with any reasonable hypothesis of innocence. McArthur v. State, 351 So.2d 972, 976 (Fla.1977). A defendant's motion for judgment of acquittal should be granted in a circumstantial-evidence case "if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt." State v. Law, 559 So.2d 187, 188 (Fla.1989).

The State presented evidence that supports premeditation: The victim was shot once in the head at close range; the only injury was the gunshot wound; Mungin procured the murder weapon in advance and had used it before; and the gun required a six-pound pull to fire. But the evidence is also consistent with a killing that occurred on the spur of the moment. There are no statements indicating that Mungin intended to kill the victim, no witnesses to the events preceding the shooting, and no continuing attack that would have suggested premeditation. Although the jury heard evidence of collateral crimes, the jury was instructed that this evidence was admitted for the limited purpose of establishing the shooter's identity.

Although the trial judge erred in denying the motion for judgment of acquittal as to premeditation, we do not reverse Mungin's first-degree murder conviction because the judge correctly denied the motion as to felony murder.

The evidence shows that Mungin entered the store carrying a gun, that $59.05 was missing from the store, that money from the cash box was gone, that someone tried to open a cash register without knowing how, and that Mungin left the store carrying a paper bag. We find that this evidence supports robbery or attempted robbery, and there is no reasonable hypothesis to the contrary.

Because the evidence does not support premeditation, it was error to instruct the jury on both premeditated and felony murder. See McKennon v. State, 403 So.2d 389 (Fla.1981) (finding error to instruct on robbery as it relates to felony murder where there was no basis in the evidence for the robbery instruction). However, the error was clearly harmless in this case. The evidence supported conviction for felony murder and the jury properly convicted Mungin of first-degree murder on this theory.

While a general guilty verdict must be set aside where the conviction may have rested on an unconstitutional ground 5 or a legally inadequate theory, 6 reversal is not warranted where the general verdict could have rested upon a theory of liability without adequate evidentiary support when there was an alternative theory of guilt for which the evidence was sufficient. Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991). The Supreme Court explained this distinction in Griffin as follows:

Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law--whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite, the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence, see, Duncan v. Louisiana, 391 U.S. 145, 157, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968). As the Seventh Circuit has put it:

"It is one thing to negate a verdict that, while supported by evidence, may have been based on an erroneous view of the law; it is another to do so merely on the chance--remote, it seems to us--that the jury convicted on a ground that was not supported by adequate evidence when there existed alternative grounds for which the evidence was sufficient." United States v. Townsend, 924 F.2d 1385, 1414 ( [7th Cir.] 1991).

Griffin, 502 U.S. at 59-60, 112 S.Ct. at 474.

Based upon the foregoing, we find no reasonable possibility that the erroneous instruction contributed to Mungin's conviction, and thus the error was harmless. State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Therefore, Mungin is not entitled to relief on this basis. 7


When Mungin was tried for the instant case, he was serving a life sentence as an habitual offender for the Tallahassee crime. As his first penalty phase issue (Issue 4), Mungin argues that fundamental error occurred when a defense witness testified during the penalty phase that inmates serving life sentences are eligible for conditional release and could be freed from prison in as little as five years. Glenn Young, a correction/probation officer at the Cross City Correctional Institution, had supervised Mungin after his arrival at the prison. During questioning by defense counsel, Young said, "[L]ife doesn't really mean life. I mean, it means life, but there are inmates that are released with a...

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