Perry v. State, No. 53003

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM; SUNDBERG, C. J., ADKINS, BOYD, OVERTON, ENGLAND and ALDERMAN, JJ., and VANN
• Citation: 395 So.2d 170
• Parties: Donald PERRY, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 53003
• Decision Date: 18 December 1980

Page 170

395 So.2d 170 Donald PERRY, Appellant,
v.
STATE of Florida, Appellee. No. 53003. Supreme Court of Florida. Dec. 18, 1980.
Rehearing Denied April 7, 1981.

Page 171

Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Appellant, Donald Perry, was convicted of murder in the first degree. The trial judge imposed the death sentence in accordance with the jury's advisory sentence recommendation. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const. For the reasons expressed, we affirm the conviction but find we must remand for a new jury sentencing hearing.

This was a robbery-murder of a highly intoxicated victim who, at the time of the murder, was seated in a parked car conversing with a prostitute. A total of five witnesses testified in this cause, all of whom were presented by the state. The two primary witnesses who witnessed the incident were Johnny Peck and Belinda Burton.

Mr. Peck, a forty-five-year-old retired Navy man, was the owner of a two-story rooming house on the corner where the victim was parked. Peck's testimony was as follows. Peck was on his second-floor porch watching television, and had observed the victim's car approach the corner and park. Edith Rawls was standing on the passenger side of the car speaking to the victim when two men, later identified as Daniel Rawls and Donald Perry, approached the car. As Peck was getting up to enter his house from the porch, he heard a shot and saw Daniel Rawls and Perry running from the car. Perry had a gun in his hand and was saying, "Let's go, let's go." The two men entered a white Cadillac and left the scene. Immediately after the shot went off, he heard Edith Rawls yell: "You didn't have to do that. You didn't have to do that." After the men left, Peck advised Edith Rawls to call the police and gave her a dime to do so. Peck did not advise the police of what he had seen on the night of the incident, but on the next day voluntarily went to the police station and gave a statement.

The second primary witness to the incident was Belinda Burton, who testified as follows. She was a prostitute who frequented the area. On the night in question she was standing on the corner near a telephone booth and saw Daniel Rawls and Perry approach the car of the victim. The victim was in the driver's seat and Edith Rawls was on the passenger side. Daniel Rawls approached and stood on Edith's side of the vehicle while Perry approached the driver, pulled a gun, and said: "Give it up, this is it." Burton stated this was street slang meaning "Give me your money." A few seconds later Burton heard a shot, saw sparks, and immediately ran away from the scene. Burton did not tell the police about what she saw until three weeks later, while she was incarcerated at the county prison farm for larceny. She stated it was her belief that, because of her testimony, the prosecutor would speak in her behalf to the judge in her case but she was not promised anything specific for testifying.

The record indicates that Peck knew Burton as a prostitute who frequented the area, but he did not see her on the night of the murder. Peck stated she could have been there and he may not have seen her if she was behind something. The record further reflects there was a phone booth on the corner.

The examining physician testified the victim was shot with a .22- or .25-caliber weapon at a range of ten to twelve inches, with a bullet entering the upper left chest region and exiting at the lower right chest. He further stated this was consistent with

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the victim being shot while sitting in a car by a person standing on the driver's side of the auto. He also testified the victim was "very drunk," having a blood alcohol reading of .30.

The other witnesses at the trial phase were a friend of the victim who identified the body, and the investigating police officer who described the murder scene.

At the conclusion of the testimony of the five witnesses, the state rested. The defense chose not to call witnesses, including known eyewitnesses, or offer any evidence, and rested. The state then moved to reopen and proffered the testimony of a woman who allegedly would testify that Perry had asked her to state that he was playing basketball at the time of the murder, and the testimony of Mrs. Peck to corroborate her husband's testimony. The defense objected, and the trial court denied the state's request to reopen. The case proceeded to the conclusion of the trial phase, with the jury finding Perry guilty of first-degree murder.

Approximately fifteen minutes prior to the final argument, the public defender's office received a telephone call from Jacob Johnson, Jr., who stated that Belinda Burton could not have been at the murder scene because she was with him on that evening. The defense did not bring this information to the attention of the court and no motion was made to reopen the testimony.

Upon request of the defense, Jacob Johnson was allowed to testify at the sentencing phase on the grounds that since Burton was the only witness to state the appellant pulled the trigger, the jury could reject her testimony and determine from Peck's testimony that Perry, although a participant, was not the trigger man. Johnson stated he was Belinda Burton's boyfriend and that they had gone to dinner and to a double feature movie on the evening of the murder. He further testified that Belinda Burton had told him that she would testify for the state in order to have her sentence reduced. Johnson, when he testified, was himself incarcerated in the county jail pending trial on fifteen federal felony offenses. He could not remember what movies they had seen on the evening in question. He further admitted having been in contact with Perry while both were incarcerated in the county jail pending trial.

During the sentencing phase of the proceedings, other alleged mitigating evidence was rejected. Counsel for the appellant sought to present the testimony of the mother of Perry concerning his age, background, and upbringing. The trial court ruled the testimony was inadmissible because it was not within the itemized statutory mitigating factors, citing our decision in Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97...