Penn v. State, 74123

• Decision Date: 15 January 1991
• Docket Number: No. 74123,74123
• Citation: 574 So.2d 1079,16 Fla. L. Weekly 117
• Parties: 16 Fla. L. Weekly 117 James Randall PENN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1079

574 So.2d 1079

16 Fla. L. Weekly 117

James Randall PENN, Appellant, v. STATE of Florida, Appellee.

No. 74123.

Supreme Court of Florida.

Jan. 15, 1991.

Rehearing Denied March 4, 1991.

Nancy Daniels, Public Defender and W.C. McLain, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Richard B. Martell, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

James Randall Penn appeals his conviction of first-degree murder and sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. Although we affirm Penn's conviction, we vacate his death sentence and remand for imposition of life imprisonment with no possibility of parole for twenty-five years.

Penn, who was estranged from his wife, and his two-year-old son moved into his mother's home less than two weeks before this murder. On the night in question Penn brought his son back to the house late in the evening and put him to bed, apparently after his mother was asleep. He then left the house looking for drugs to buy, returned to the house and took a bottle of liquor, left again, and then came back and stole some jewelry from the bedroom where his mother was sleeping. Later, he returned yet again, took a hammer from the laundry room, beat his mother to death, and stole numerous items from the house. Penn purchased items with his mother's credit cards and pawned items stolen from her home. The state produced witnesses to those transactions who testified that Penn did not appear to be intoxicated. Penn did not testify, but, after his arrest the following day, he made four confessions. In those confessions, among other things, he said he stole his mother's property so that he could exchange it for crack cocaine and that he had consumed six or seven pieces of the drug during the night and had been under the drug's influence up to the time of his arrest. The state indicted him for first-degree murder and robbery with a deadly weapon. The jury convicted him of grand theft and first-degree murder and recommended that he be sentenced to death, which the trial court did.

During jury selection, the judge denied Penn's challenge for cause of two prospective jurors, and Penn used peremptory challenges to remove them from the panel. After Penn exhausted his allotted peremptory challenges, he requested ten more, based on the prospective jurors' knowledge of the case. ¹ The state objected, and the judge denied the request for more peremptory challenges. Now, Penn argues that he should receive a new trial because the judge improperly denied the two challenges for cause, thereby forcing him to use two peremptory challenges. We disagree.

The first prospective juror indicated that he strongly favored the death penalty. On further questioning by the judge and prosecutor, however, he said he would follow the law as instructed. The second prospective juror stated that, because her father was an alcoholic, she did not have much sympathy for people who had voluntary chemical dependencies. She acknowledged, however, that a person could be so intoxicated as not to know what he was doing and stated that she would follow the court's instructions. We find no abuse of the trial court's discretion in refusing to excuse these prospective jurors for cause because they ultimately demonstrated their competency by stating that they would base their decisions on the evidence and instructions. Pentecost v. State, 545 So.2d 861 (Fla.1989); Cook v. State, 542 So.2d 964 (Fla.1989).

Even assuming that the court erred in refusing to excuse these prospective jurors, however, we would find such error harmless because Penn has shown no prejudice, i.e., that he had to accept an objectionable juror. This Court has long held

that the action of the court in holding a juror to be qualified over defendant's objection works no injury to the accused if the objectionable venireman does not serve, even though the accused exhausted his statutory number of peremptory challenges, when it does not also appear that any objectionable juror was selected after the defendant's challenges were exhausted. The reason given for the rule is that the accused has a right to an impartial jury but is not entitled to any particular persons as jurors.

In a case where an objectionable juror is challenged by the defendant for cause and the court wrongfully overrules the challenge and the defendant uses one of his peremptory challenges to excuse the objectionable venireman, the record should show that the jury finally impaneled contained at least one juror objectionable to the defendant, who sought to excuse him peremptorily but the challenge was overruled.

Young v. State, 85 Fla. 348, 354, 96 So. 381, 383 (1923). Accord Trotter v. State, No. 70,714 (Fla.1990); Floyd v. State, 569 So.2d 1225 (Fla.1990); Pen tecost; Rollins v. State, 148 So.2d 274 (Fla.1963); McRae v. State, 62 Fla. 74, 57 So. 348 (1912). The United States Supreme Court recently echoed Young's reasoning and conclusions in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). Penn relies on Moore v. State, 525 So.2d 870 (Fla.1988), and Hill v. State, 477 So.2d 553 (Fla.1985), but those cases are distinguishable from the instant case. Penn never objected to any of the jurors after exhausting his peremptories and has not alleged, let alone demonstrated, that an incompetent juror sat on his jury. We therefore find no merit to this point on appeal.

Penn claimed to have been intoxicated by crack cocaine during the night he killed his mother and moved for acquittal on the first-degree murder charge. ² As a basis for the motion, Penn argued that because the jury found him not guilty of the underlying felony of robbery he could not have been convicted of first-degree felony murder and that because voluntary intoxication is a defense to first-degree premeditated murder the state had not proved premeditation. The court denied the motion, and Penn appeals that denial.

Premeditation can be shown by circumstantial evidence. Whether or not the evidence shows a premeditated design to commit a murder is a question of fact for the jury. Preston v. State, 444 So.2d 939 (Fla.1984). This Court has previously stated:

Evidence from which premeditation may be inferred includes such matters as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed and the nature and manner of the wounds inflicted. It must exist for such time before the homicide as will enable the accused to be conscious of the nature of the deed he is about to commit and the probable result to flow from it insofar as the life of his victim is concerned.

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). Accord Heiney v. State, 447 So.2d 210 (Fla.), cert. denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984). The court instructed the jury on premeditation and on voluntary intoxication, and the jury obviously believed the state's evidence rather than the defense's theory of voluntary intoxication. ³ After examining this record, we find sufficient evidence of premeditation to support both the verdict and the jury's disagreement with Penn that he could not have formed the specific intent necessary for premeditated murder.

While in jail awaiting trial, Penn wrote a letter to a local newspaper reporter in which he confessed killing his mother, detailed his and his wife's drug use, expressed remorse, and stated that he wanted to be sentenced to death. The reporter telephoned Penn at the jail to verify the letter. The state called the reporter as a witness, read the letter into evidence, and questioned the reporter about his conversation with Penn. The following occurred:

Q: [Elmore, prosecutor]: Mr. Knutz, did he in any way disclaim responsibility for the murder of his mother?

A: No. No, I would say not.

Q: Did he in any way indicate that anyone else had participated in the murder of his mother?

A: He didn't indicate that anyone had participated in the crime, no.

Q: Did he indicate he had any suspicion that anyone had participated in the crime or had been in the house when his mother was killed?

A: No.

MR. ELMORE: Thank you. Nothing further.

JUDGE FLEET: Defense may cross.

CROSS EXAMINATION

BY MR. LOVELESS [defense counsel]:

Q: Mr. Knutz, did the rest of your conversation concern the reason why? Is that what he wanted to talk about?

A: He wanted to talk--

MR. ELMORE: I object to any further examination concerning the other things that James Randall Penn said at that time. They are self-serving declarations.

JUDGE FLEET:

Objection overruled. Both counsel approach the bench.

At the bench conference the prosecutor argued that he asked the reporter only "very pointed and specific questions as to specific areas." Defense counsel proffered the testimony he wished to elicit from the witness, specifically:

At one point he said he didn't think about what he was doing, that he could have just robbed her, that he didn't have to kill her. He mentioned something about not really having realized what he had done until he was on his way to Panama City, I believe it says.

After further argument, the court sustained the objection "without prejudice of the rights of the defendant to introduce it in his own case in chief if he desires to do so."

Penn now claims that restricting the cross-examination of this witness denied his right to confront the witnesses against him. We disagree.

As previously held by this Court,

questions on cross-examination must either relate to credibility or be germane to the matters brought out on direct examination. If the defendant seeks to elicit testimony from an adverse witness which goes beyond the scope encompassed by the testimony of the witness on direct examination, other than matters going to credibility, he must...