Murray v. State
| Decision Date | 17 July 1986 |
| Docket Number | No. 67414,67414 |
| Citation | 11 Fla. L. Weekly 328,491 So.2d 1120 |
| Parties | 11 Fla. L. Weekly 328 Willie Lee MURRAY, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, Fifteenth Judicial Circuit, West Palm Beach, for petitioner.
Jim Smith, Atty. Gen. and Penny H. Brill, Asst. Atty. Gen., West Palm Beach, for respondent.
We have for review the Fourth District's opinion of Murray v. State, 471 So.2d 70 (Fla. 4th DCA 1984), as modified after rehearing. We find jurisdiction based on conflict, article V, section 3(b)(3), Florida Constitution, and affirm in part and quash in part the decision under review.
The prosecution below stemmed from certain events of January 19, 1983, beginning with the abduction of a young woman at gunpoint from a Pompano Beach carwash by Murray and a cohort. After the two men forced the victim to drive away with them in her car, Murray drove while his companion pointed the gun, threatened the victim's life, and went through her purse for money. Murray parked the car, now in Deerfield Beach, and the two men sexually assaulted the victim. The two men took the necklace she was wearing and drove the victim to a nearby wooded area.
After throwing the victim a sweater, Murray walked with her away from the car, swinging the pistol he was then carrying in his right hand. Putting his left arm around the victim's shoulders, he kissed her on the mouth and said goodbye. As she began to walk away, Murray shot her through the back of the head, perforating her right eye and severely impairing the sight in her left. The victim is now legally blind.
Petitioner was arrested within hours and charged with kidnapping, two counts of sexual battery, armed robbery, and attempted first-degree murder. A jury subsequently convicted him on five counts: kidnapping without a firearm, two counts of sexual battery with a firearm, robbery with a firearm, and attempted manslaughter with a firearm. The trial court, entering judgment accordingly, sentenced petitioner to 100 years imprisonment on each of the first four counts and 15 years on the fifth, all to run consecutively, and imposed three year mandatory minimum sentences under section 775.087(2), Florida Statutes (1983), for those crimes involving a firearm. The trial court additionally retained jurisdiction over parole, under section 947.16(3)(a), Florida Statutes (1983), for thirty years of the first sexual battery sentence.
Upon review, the Fourth District affirmed in part and reversed in part the judgment and sentence. First, it reversed the conviction of attempted manslaughter on the authority of Taylor v. State, 444 So.2d 931 (Fla.1983), and Achin v. State, 436 So.2d 30 (Fla.1982), and remanded for a new trial on that charge. In Taylor, we held that a conviction of attempted manslaughter must be based upon a showing of an act or procurement, rather than mere culpable negligence. Because Murray consistently contended at trial he had not intended to shoot the victim, and the jury had in fact not returned the requested attempted first-degree murder verdict, the district court reasoned that the defendant may have been convicted of a nonexistent crime, in violation of Achin.
Upon rehearing, however, the district court withdrew this portion of its opinion, holding that the issue of the flawed jury instruction had not been properly preserved as required by our decision of Tillman v. State, 471 So.2d 32 (Fla.1985). Accordingly, the court affirmed the sentence and mandatory minimum imposed on the attempted manslaughter conviction.
The Fourth District additionally evaluated the propriety of the trial court's imposition of consecutive three-year mandatory minimums on the two sexual batteries, the robbery, and the manslaughter counts in light of Palmer v. State, 438 So.2d 1 (Fla.1983). In Palmer, we found impermissible the consecutive imposition of multiple mandatory minimums for a number of separate offenses arising from a single criminal episode. The district court below, finding that the sexual batteries "occurred at the same place as the result of a continuing unit of criminal activity," 471 So.2d at 72, required the two mandatory minimums imposed by the trial court therefor to be served concurrently.
In contrast, the district court found the robberies sufficiently separate from the sexual batteries to uphold the mandatory minimum on the former. Upon rehearing, too, the court affirmed the imposition of the mandatory minimum on the attempted manslaughter conviction. Finally, the district court affirmed the trial court's retention of jurisdiction over the first sexual battery conviction.
Murray attacks the district court's decision, as modified upon rehearing, on a number of grounds. First, he challenges the Fourth District's affirmance of the conviction of and sentence for attempted manslaughter. We find no error in the conviction. In this case, as in Tillman, a pre-Taylor jury was instructed that attempted manslaughter could be based on culpable negligence as well as an act or procurement. As in this case, Tillman contended that a new trial was required, as "it is unclear whether the jury found its verdict on the ground of an act or procurement on the one hand or culpable negligence on the other." 471 So.2d at 34. We rejected this contention for two reasons, each of which applies in full force to the instant case.
First, the issue of the jury instructions had not been properly preserved for appeal through specific objection below. Id. at 35, citing Steinhorst v. State, 412 So.2d 332 (Fla.1982). Second, and equally fundamental, a review of the record disclosed ample and sufficient evidence to support the conclusion that the shooting of the victim "was the result of an act of petitioner done with the requisite criminal intent and was not mere culpable negligence." 471 So.2d at 35.
Murray miscontrues Florida law in citing Achin for the proposition that the erroneous jury instruction, coupled with the verdict returned, create an intolerable risk that he has been convicted of a nonexistent crime. Unlike the "attempted extortion" conviction in that case, attempted manslaughter has long been recognized by Florida's courts. Taylor; Williams v. State, 41 Fla. 295, 26 So. 184 (1899); Rodriguez v. State, 443 So.2d 286 (Fla. 3d DCA 1983).
We held in Taylor that the crime logically exists "in situations where, if death had resulted, the defendant could have been found guilty of voluntary manslaughter." 444 So.2d at 934. Subsequently, in Brown v. State, 455 So.2d 382 (Fla.1984), we scrutinized the evidence underlying a verdict of attempted manslaughter in order to ensure that the verdict was supported by sufficient evidence of an intention to commit the criminal act in question. Similar scrutiny in this case compels us, as in Brown, to uphold the verdict and affirm the conviction.
A jury verdict is not to be overturned if supported by substantial and competent evidence, Hitchcock v. State, 413 So.2d 741 (Fla.), cert. denied, 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982); Skinner v. State, 468 So.2d 271 (Fla. 2d DCA 1985), and as the jurors below "performed their duty faithfully and honestly and have reached a reasonable conclusion, more than a difference of opinion as to what the evidence shows is required for this Court to reverse them." Hitchcock, 413 So.2d at 745.
We find the conviction amply supported by reasonable inferences to be drawn from the evidence. Frankly, we find Murray's purported lack of intent to shoot the victim inconsistent with his admitted intent to kidnap, rob, and sexually batter her. At any rate, evidence presented by the state as to the force necessary to squeeze the trigger on the gun, the safety bar on the pistol, and Murray's original statement to police indicating not that he had accidentally shot the victim, but that his co-defendant had done the act, painted a picture of intent which the jury could well have reasonably accepted in returning its verdict.
We must, however, quash the opinion under review in part. We find no authority allowing application of a mandatory minimum sentence to the conviction for attempted manslaughter. The authorizing statute, section 775.087(2), Florida Statutes (1983), applies to, inter alia, convictions of "[a]ny murder." Manslaughter, as defined by section 782.07, Florida Statutes (1983), involves "[t]he killing of a human being ... in cases in which such killing shall not be excusable homicide or murder ..." We therefore agree with those decisions finding no basis for application of the mandatory minimums to manslaughter convictions. Strahorn v. State, 436 So.2d...
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