Pangburn v. State

• Decision Date: 06 July 1995
• Docket Number: No. 81650,81650
• Citation: 661 So.2d 1182
• Parties: 20 Fla. L. Weekly S323 David PANGBURN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1182

661 So.2d 1182

20 Fla. L. Weekly S323

David PANGBURN, Appellant, v. STATE of Florida, Appellee.

No. 81650.

Supreme Court of Florida.

July 6, 1995.

Rehearing Denied Oct. 25, 1995.

Richard Bartmon Bartmon & Bartmon, Boca Raton, for appellant.

Robert A. Butterworth, Atty. Gen., and Sara D. Baggett, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

David Pangburn appeals his convictions and sentences for robbery and two counts of first-degree murder, including his sentence of death for one of the first-degree murder convictions. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const. For the reasons expressed, we affirm Pangburn's convictions and his sentence of life imprisonment for the robbery conviction, but we reverse his sentences for the two first-degree murder convictions and remand this cause for a new penalty phase proceeding.

At trial, the State presented evidence supporting the following account of the crimes. On November 20, 1989, the bodies of Diane Matlawski and Nancy Cole were discovered by law enforcement officers off Alligator Alley. Diane had suffered a number of lacerations and fractures to her head and a ligature mark was found around her neck. The fractures had been inflicted with an object similar to a baseball bat. She had died of asphyxiation, most likely caused by strangulation. Her ruby and diamond bracelets and her red Trans Am automobile were missing. Nancy had a number of injuries to her face, defensive wounds on her arm and hand, and a ligature mark around her neck. She too had died of asphyxiation. The time of death of both victims was estimated to be late in the evening on November 19, 1989, or early in the morning on November 20, 1989. A week after the bodies were found, officers found Diane's Trans Am parked at an apartment complex. Several witnesses reported seeing someone around the car the preceding week, but were unable to provide any information regarding the person's identity.

Officers had no investigative leads as to who committed the murders until July 9, 1990, when an informant called implicating the appellant and his brother Michael Pangburn. After the call, officers put together a photographic composite from which witnesses identified appellant and his brother Michael as being the individuals they saw in or around Diane's Trans Am the week following the murder. Additionally, a fingerprint found on a plastic bag inside Diane's car matched one of Michael's fingerprints. It was also discovered that the day after the murders, Michael was treated at an area hospital for an injury to his hand, at which time a witness saw him wearing two bracelets similar to those belonging to Diane; later that day appellant was visiting Michael at the hospital and was seen wearing one of the bracelets.

After appellant and Michael were implicated, officers attempted to locate them. Michael was apprehended as he was attempting to leave town. After being told that his fingerprint had been found in Diane's car, he gave two statements. In the first, he placed the blame for the murders entirely on appellant. In the second, he stated that he had arrived home to find Diane dead and that he assisted appellant in murdering Nancy only after being coerced into doing so by appellant.

Appellant was then located (he was in jail on an escape charge) and questioned about the murders. Officers told him that Michael had implicated him in murders, to which he replied: "I knew what we were doing was wrong.... [I]t was [Michael's] idea to kill the girls for the car.... If I tell you guys everything, I know I will be putting myself and my brother in the electric chair for sure."

Further investigation revealed that, at the time of the murders, the appellant, the appellant's brother Michael, and another male had been living in a house owned by Michael's male lover. A search of the house revealed bloodstains on the walls of several rooms, including appellant's bedroom. Fibers found in Diane's car and on Nancy's body matched carpet fibers from the house. Additionally, on the night of the murders, the other male living in the house heard arguing and loud noises and saw appellant carrying a baseball bat. Appellant told the roommate to go back to his room because what was going on was none of his business. The next day the roommate saw appellant and Michael removing some of the carpet in appellant's bedroom. Further, shortly after the murders, appellant was washing his laundry at the apartment complex where the Trans Am was found and, while there, told a witness that he had a new red sports car.

The theory of the defense was that Michael, not appellant, committed the murders. Although appellant did not testify at the conviction proceeding, Michael testified that he committed both murders while appellant was at work. ¹ Several other witnesses testified to show inconsistencies in Michael's initial statements to the contrary and to show that the appellant had occasional access to a friend's car that resembled Diane's red Trans Am.

The jury found appellant guilty of the first-degree murder of Diane, the first-degree murder of Nancy, and robbery. A penalty phase proceeding was conducted and the jury returned a recommendation for the death penalty by a seven-to-five vote.

Subsequent to the penalty phase proceeding, the trial judge discovered that the jury had not been given separate jury forms to enable it to make separate recommendations as to each of the murders. Consequently, it was impossible to determine whether the seven-to-five vote for death applied to the murder of Diane, to the murder of Nancy, or to both. After much discussion among the judge, the attorneys, and appellant, the parties stipulated that the jury's recommendation would be accepted as one of death for Diane's murder and one of life imprisonment for Nancy's murder. Before appellant was sentenced, however, he attempted to withdraw his consent to the stipulation, but the trial judge refused to allow him to do so. The judge then sentenced appellant to death for the murder of Diane, finding the following factors in aggravation: (1) committed by a person under sentence of imprisonment (appellant committed the murder after escaping from prison); (2) prior violent felony (prior conviction for robbery); (3) committed during the course of a robbery (appellant was convicted of robbing the victim); and (4) the murder was heinous, atrocious, or cruel. He found no statutory mitigating factors, but he found the following nonstatutory mitigating factors: (1) appellant is a good parent, good husband, and family man (some weight); (2) appellant had done good deeds for other people (little weight); (3) appellant was mentally, physically, and emotionally abused as a child (great weight); (4) good employment record and belief in hard work and responsibility (little weight); (5) no positive male figure in his life (some weight); (6) had an abusive stepfather (some weight); (7) excellent behavior at trial (little weight); (8) mother had a problem with drugs, alcohol, and crime during appellant's youth (some weight); (9) potential for rehabilitation (some weight); and (10) father of a five-year-old who needs him (some weight). The trial judge rejected appellant's age of thirty years as a statutory mitigating circumstance. He also rejected the fact that Michael was sentenced to life in prison as a nonstatutory mitigating circumstance, finding that Michael was acquitted of the murder of Diane and received life for the murder of Nancy after it was determined that he merely assisted appellant in that murder.

The trial judge also sentenced appellant to life imprisonment with a minimum mandatory sentence of twenty-five years for the murder of Nancy, and to life imprisonment for the robbery conviction with a minimum mandatory sentence of fifteen years, with all sentences to run consecutively.

In this appeal, appellant raises five issues regarding the guilt phase ² and twelve issues regarding the penalty phase. ³

Guilt Phase

In his first conviction phase issue, appellant claims that the trial judge erred in denying his motion to suppress the incriminating statements he made to law enforcement officers. As previously indicated, when appellant was initially questioned by police, he stated: "I knew what we were doing was wrong.... [I]t was [Michael's] idea to kill the girls for the car.... If I tell you guys everything, I know I will be putting myself and my brother in the electric chair for sure." According to appellant, this statement was wrongfully elicited by the officers in violation of his Miranda ⁴ rights because he told officers he did not understand his rights before making the statement; he made the statement only after invoking his right to silence; and he made the statement only after the officers told him that Michael had implicated him in the murders. Additionally, appellant contends that the officers violated his right to counsel because, when he was questioned, he was in jail on a charge of escape and the officers did not check to see if he had invoked his right to counsel.

The record reflects that these claims are procedurally barred because they were not raised before the trial court. The only arguments raised by appellant at the hearing on the motion to suppress were that he was not read his Miranda rights and that he did not make the above statement. Both officers testified to the contrary and the trial judge denied the motion. Further, even if the arguments were not procedurally barred, we would find them to be without merit. The testimony of the officers reflects that a facility supervisor brought appellant to an office for the interview and told him he did not have to speak to the officers and could leave at any time. Appellant stated that he had "nothing to hide." The officers read appellant his rights and appellant stated that he understood his rights. The officers also asked appellant if he had previously requested...