Pooler v. State

• Decision Date: 06 November 1997
• Docket Number: No. 87771,87771
• Citation: 704 So.2d 1375
• Parties: 22 Fla. L. Weekly S697 Leroy POOLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1375

704 So.2d 1375

22 Fla. L. Weekly S697

Leroy POOLER, Appellant, v. STATE of Florida, Appellee.

No. 87771.

Supreme Court of Florida.

Nov. 6, 1997.

Rehearing Denied Jan. 23, 1998.

Michael D. Lebedeker, West Palm Beach, for Appellant.

Robert A. Butterworth, Attorney General, and Sara D. Baggett, Assistant Attorney General, West Palm Beach, for Appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Leroy Pooler. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. Leroy Pooler was convicted of first-degree murder for the shooting death of his ex-girlfriend, Kim Wright Brown. He also was convicted of burglary and attempted first-degree murder with a firearm. The facts supporting these convictions are as follows. On January 28, 1995, Carolyn Glass, a long-time acquaintance of Kim Brown, told her that Pooler had said he was going to kill her because if he could not have her, no one else would. (Evidence showed that Kim Brown had begun seeing another man.) Two days later, Pooler knocked on the front door of the apartment where Kim and her younger brother, Alvonza Colson, lived with their mother. Seeing Pooler through the door window, Kim told him that she did not want to see him anymore. Alvonza opened the door halfway and asked Pooler what he wanted but would not let him in. When Pooler brandished a gun, Alvonza let go of the door and tried to run out the door, but he was shot in the back by Pooler. Pooler pulled Alvonza back into the apartment by his leg. Kim begged Pooler not to kill her brother or her and began vomiting into her hands. She suggested they take Alvonza to the hospital. Pooler originally agreed but then told Alvonza to stay and call himself an ambulance while Pooler left with Kim. However, rather than follow Pooler out the door, Kim shut and locked it behind him. Alvonza told Kim to run out the back door for her life while he stayed in the apartment to call for an ambulance. When he discovered that the telephone wires had been cut, he started for the back door, just as Pooler was breaking in through the front entrance.

Pooler first found Alvonza, who was hiding in an area near the back door, but when he heard Kim yelling for help, he left Alvonza and continued after Kim. When he eventually caught up with her, he struck her in the head with his gun, causing it to discharge. In front of numerous witnesses, he pulled her toward his car as she screamed and begged him not to kill her. When she fought against going in the car, Pooler pulled her back toward the apartment building and shot her several times, pausing once to say, "You want some more?" Kim had been shot a total of five times, including once in the head. Pooler then got into his car and drove away.

The jury recommended death by a vote of nine to three. The trial court found the following aggravators: (1) that the defendant had a prior violent felony conviction (contemporaneous attempted first-degree murder of Alvonza); (2) that the murder was committed during the commission of a burglary; and (3) that the murder was heinous, atrocious, or ¹ cruel. The trial court found as statutory mitigation that the crime was committed while Pooler was under the influence of extreme mental or emotional disturbance, but gave that finding little weight. The court found the following proposed statutory mitigators had not been established: (1) the defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired; (2) the defendant acted under extreme duress or under the substantial domination of another person; and (3) the defendant's age (he was 47).

As nonstatutory mitigation, the trial court found the defendant's honorable service in the military and good employment record, as well as the fact that he was a good parent, had done specific good deeds, possessed certain good characteristics, and could be sentenced to life without parole or consecutive life sentences. The only mitigator given considerable weight was Pooler's honorable military service; the others were given some to little weight. The trial court expressly rejected as unestablished nonstatutory mitigation that Pooler has a good jail record and an ability to adapt to prison life; that he has low normal intelligence; that he has mental health problems; that he is rehabilitable; that the homicide was the result of a heated domestic dispute; and that he is unlikely to endanger others and will adapt well to prison. Concluding that each of the three aggravators standing alone would outweigh the mitigating evidence, the court sentenced Pooler to death.

Pooler raises fifteen issues in this appeal. As his first argument, he contends that the prosecutor made an improper comment during voir dire about the presumption of innocence afforded criminal defendants when he said to a prospective juror:

Now, as we sit here, Mr. Pooler is presumed to be innocent.... That doesn't mean that he is innocent, but you have to presume that.

We disagree with Pooler's characterization of the comment. The prosecutor's statement was not an improper statement of the law, nor did it constitute an expression of the prosecutor's personal belief in Pooler's guilt.

Second, Pooler claims that the trial court erred in failing to instruct the jury on attempted first-degree felony murder in the count charging him with attempted first-degree murder with a firearm. Acknowledging that this Court in State v. Gray, 654 So.2d 552 (Fla.1995), held that there is no crime of attempted felony murder in Florida, Pooler nevertheless argues that had the jury been so instructed, his attempted first-degree murder conviction might have been based on that theory, and then that conviction as well as the two aggravators based on that conviction would have been struck down on the basis of Gray. First, defense counsel did not request an instruction on attempted felony murder. Thus, the issue is waived. Moreover, the argument makes little sense. Pooler was not entitled to an instruction on a non-existent crime.

Third, Pooler argues that the trial court erred in finding that the murder of Kim Brown was heinous, atrocious, or cruel (HAC). He relies on Lewis v. State, 398 So.2d 432, 438 (Fla.1981), in which this Court held that "a murder by shooting, when it is ordinary in the sense that it is not set apart from the norm of premeditated murders, is as a matter of law not heinous, atrocious or cruel." Pooler contends that the shooting death of Kim Brown was not accompanied by any additional acts that would set it apart from the norm of premeditated murders. In further support of his argument, Pooler also relies on Bonifay v. State, 626 So.2d 1310 (Fla.1993), wherein we held that the fact that the shooting victim begged for his life or received multiple gunshot wounds was insufficient to establish the HAC aggravator in the absence of evidence that the defendant intended to cause the victim unnecessary and prolonged suffering. However, we have also held that the fear, emotional strain, and terror of the victim during the events leading up to the murder may be considered in determining whether this aggravator is satisfied, even where the victim's death was almost instantaneous. James v. State, 695 So.2d 1229 (Fla.), petition for cert. filed, No. 97-6104 (U.S. Sept. 18, 1997); Preston v. State, 607 So.2d 404, 409-10 (Fla.1992); Rivera v. State, 561 So.2d 536, 540 (Fla.1990); Adams v. State, 412 So.2d 850, 857 (Fla.1982). Moreover, the victim's mental state may be evaluated for purposes of this determination in accordance with a common-sense inference from the circumstances. Swafford v. State, 533 So.2d 270, 277 (Fla.1988). In this case, the record contains evidence over and above the fact that the victim pleaded for her life and received multiple gunshot wounds. Kim Brown learned of Pooler's threat to kill her some two days before she was killed, giving her ample time to ponder her fate. Any doubt she may have had about the sincerity of Pooler's threat must have been dispelled when he visited her apartment that morning with a gun, forced his way in, and shot her fleeing brother in the back. One need not speculate too much about what was going through Kim Brown's mind during this time, as her fear was such that it caused her to vomit. Even after Kim succeeded in locking Pooler out of the apartment, he broke his way back in, whereupon she and her brother ran out of the apartment in an effort to escape. Once he caught up with Kim, Pooler struck her in the head with his gun and dragged her to his car as she screamed and begged for him not to kill her. Pooler's final words to her before killing her were, "Bitch, didn't I tell you I'd kill you?" and "You want some more?" We conclude that the circumstances of the victim's death support the trial court's finding that the HAC aggravator had been established.

Pooler's fourth claim is that the trial court erred in finding that the prior violent felony aggravator had been established where the underlying felony (in this case, the attempted murder of Alvonza Colson) was committed contemporaneously with the capital felony. However, as Pooler concedes, we have rejected this argument in the past. Contemporaneous convictions prior to sentencing can qualify as previous convictions of violent felony and may be used as aggravating factors in cases where the contemporaneous crimes were committed upon separate victims. E.g., Windom v. State, 656 So.2d 432, 439 (Fla.1995); Zeigler v. State, 580 So.2d 127, 129 (Fla.1991); Correll v. State, 523 So.2d 562, 568 (Fla.1988); Lucas v. State, 376 So.2d 1149, 1152-53 (Fla.1979). We therefore find no error.

Fifth, Pooler challenges the trial court's finding that he had not established that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially...