Nibert v. State, 67072
| Decision Date | 07 May 1987 |
| Docket Number | No. 67072,67072 |
| Citation | 508 So.2d 1,12 Fla. L. Weekly 225 |
| Parties | 12 Fla. L. Weekly 225 Billy Ray NIBERT, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
James Marion Moorman, Public Defender, Tenth Judicial Circuit, and Douglas S. Connor, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., and Theda J. James, Asst. Atty. Gen., Tampa, for appellee.
Billy Ray Nibert appeals his conviction for first-degree murder and sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm Nibert's murder conviction, but, for the reasons expressed below, we vacate his death sentence and remand for resentencing.
The testimony at trial revealed that the fifty-seven-year-old victim, Eugene Snavely, was a frequently intoxicated alcoholic who lived across the street from his brother, James. James testified that on the day of the homicide the victim was at his house until approximately 5 p.m. when the victim returned to his own home. Through his window, James observed an individual approach the victim and enter the victim's home with him. Forty-five minutes later, the victim appeared at James' door, holding a knife and bleeding profusely. He had been stabbed seventeen times.
Jack Andruskiewiecz, an acquaintance of Nibert, testified that Nibert came to his hotel room on the evening of the murder. Nibert was in a state of shock, covered with blood, and kept babbling "oh God, oh God." According to Andruskiewiecz, Nibert initially explained his condition by saying he had been involved in a bar fight. Later, he said it was a street fight. Still later, after watching the late night news story on the stabbing, Nibert admitted that he had killed the victim. Andruskiewiecz further testified that a few days before the murder Nibert had told him he was going to rob the victim. 1
The physical evidence at the victim's home consisted of large amounts of blood on the kitchen floor, shoe prints that could have been made by Nibert, and a six-pack of 16 ounce beer cans with indications that the beer had been consumed by the victim and his attacker. Blood samples taken from Andruskiewiecz's hotel room were consistent with the victim's blood type.
The jury found Nibert guilty of first-degree murder. During the penalty phase, the state was permitted to argue the application of the aggravating circumstances that the murder was especially heinous, atrocious and cruel, 2 and was committed in a cold, calculated and premeditated manner. 3 The defense was permitted to argue four of the statutory mitigating circumstances. In addition, the defense put into evidence that Nibert had a problem with alcohol, that his father was an alcoholic, and that when he was not drinking he was a considerate, trustworthy, hardworking person. The jury recommended the death penalty by a seven-to-five vote. The judge then directed the state attorney to prepare an order reflecting that the court found no mitigating circumstances and two aggravating factors.
Nibert raises a number of issues on appeal. He contends that his conviction should be reversed because: 1) his due process rights to a fair trial were violated when the trial court failed to instruct the jury on the inapplicability of the felony murder theory; 2) the trial court erred in failing to give the jury written instructions; 3) he was unconstitutionally tried by a death-qualified jury; 4) the trial court erred in permitting the state's tendered expert to testify as an expert in shoe print analysis; 5) the evidence was insufficient to establish premeditation; and 6) one of the prospective jurors should have been excused for cause.
Nibert's contention that he was denied due process because the trial court failed to instruct the jury on the inapplicability of the felony murder rule is without merit. Although during voir dire the prosecutor explained the felony murder theory to the prospective jurors, the jury was ultimately instructed on only premeditated murder. Thus, there was no need for a curative instruction. Moreover, defense counsel made clear to the jury in closing argument that felony murder was not an issue in the case. We therefore find no error in the trial court's failure to give a curative instruction regarding the inapplicability of the felony murder rule.
We also find no merit in Nibert's contention that his conviction should be reversed because of the trial court's failure to give the jury written instructions. Nibert concedes that defense counsel did not request written instructions nor object to the trial court's failure to provide them. Despite Nibert's protestations to the contrary, the trial court's failure to provide the jury with written instructions cannot be deemed fundamental error. Thus, because this issue was not properly preserved below, it was waived and may not be raised on appeal. See McCaskill v. State, 344 So.2d 1276 (Fla.1977).
Nibert's argument that he was unconstitutionally tried by a death qualified jury has been previously rejected. See Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Kennedy v. Wainwright, 483 So.2d 424 (Fla.), cert. denied, 479 U.S. 890, 107 S.Ct. 291, 93 L.Ed.2d 265 (1986).
We also disagree with Nibert's contention that the trial judge erred in permitting the state's tendered expert to testify as an expert witness. The trial court correctly admitted the testimony noting that the defendant's objections related to the weight which should be accorded the testimony and not its admissibility.
Nibert's argument that juror Stalvey should have been excused for cause on the basis of her responses is likewise without merit. Moreover, although defense counsel did use a peremptory challenge to excuse Stalvey, he did not exhaust all of his peremptory challenges. Thus, even if the trial judge erred in refusing to excuse Stalvey for cause, the error was harmless. See Hill v. State, 477 So.2d 553, 556 (Fla.1985).
Finally, we find sufficient competent evidence to support a finding that the murder was premeditated. In Sireci v. State, 399 So.2d 964, 967 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982), we stated that:
Premeditation is a fully-formed conscious purpose to kill, which exists in the mind of the perpetrator for a sufficient length of time to permit of reflection, and in pursuance of which an act of killing ensues. Premeditation does not have to be contemplated for any particular period of time before the act, and may occur a moment before the act. (Citations omitted.)
We have further explained that circumstances indicative of a premeditated intent to kill include the manner in which the murder was committed and the type of wounds inflicted. See Welty v. State, 402 So.2d 1159, 1163 (Fla.1981). See also Mines v. State, 390 So.2d 332, 335 (Fla.1980), cert. denied, 451 U.S. 916, 101 S.Ct. 1994, 68 L.Ed.2d 308 (1981). The testimony of Andruskiewiecz that Nibert told him he had "made [the victim] get on his knees" during the stabbing in addition to the excessive number and nature of the wounds inflicted provides sufficient evidence to support a verdict that his death was the result of premeditated design.
As to his sentence, Nibert contends that the death penalty was improperly imposed because: 1) the trial court unlawfully delegated its duty to prepare an adequate statement of the findings to support imposition of the death penalty; 2) the judge instructed the jurors on the law prior to the taking of evidence and argument of counsel; 3) the trial court erred in failing to properly consider evidence pertaining to mitigating factors; 4) the trial court erred in finding the statutory aggravating circumstances of cold, calculated, and premeditated, and heinous, atrocious, and cruel; and 5) imposition of the death sentence imposed under these facts would violate the eighth amendment of the United States Constitution.
We reject Nibert's argument that the death penalty was unlawfully imposed because the judge did...
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