Power v. State, 77157

• Decision Date: 27 August 1992
• Docket Number: No. 77157,77157
• Citation: 605 So.2d 856
• Parties: 17 Fla. L. Week. S572 Robert B. POWER, Jr., Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
• Court: Florida Supreme Court

Page 856

605 So.2d 856

17 Fla. L. Week. S572

Robert B. POWER, Jr., Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.

No. 77157.

Supreme Court of Florida.

Aug. 27, 1992.

Rehearing Denied Oct. 27, 1992.

James B. Gibson, Public Defender and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant/cross-appellee.

Robert A. Butterworth, Atty. Gen., and Barbara C. Davis, Asst. Atty. Gen., Daytona Beach, for appellee/cross-appellant.

PER CURIAM.

Robert B. Power, Jr., appeals his conviction for first-degree murder and imposition of the death penalty. ¹ We affirm the conviction and the sentence.

The conviction arises from events occurring on October 6, 1987, when Frank Miller, a friend of the Bare family, arrived at the Bare home with his daughter to pick up twelve-year-old Angeli Bare for school. When he arrived, Miller honked the horn twice. He then glanced at the house where he saw a man standing inside the doorway with his back to the street. Miller assumed the man was Angeli's father because he was approximately the same build. The man made a gesture which Miller interpreted as meaning for him to wait. Miller remained in his car. When he next looked, he noticed the front door was closed with no one in sight. At approximately 8:55 a.m., Angeli came out of her house and walked down to the sidewalk to Miller's car. She approached within three feet of the passenger side of the car (the side closest to the house), and stopped. At that point, Miller noticed that Angeli appeared very nervous.

Angeli told Miller that there was a man in the house who she believed wanted to rob her. Angeli refused Miller's repeated requests to get into the car because, she said, the man in the house would kill all three of them. Miller told Angeli that he would get help and immediately drove the four blocks back to his own house and called the Bares at work and 911. Miller then drove back and parked four or five houses away from the Bares' home.

At approximately 9:10 a.m., Deputy Richard Welty received a radio dispatch and drove to the Bare home. En route, he was flagged down by Miller who related what he saw. Miller described the man he had seen as a white male with reddish hair. Mr. and Mrs. Bare, who had just arrived, stated that Angeli's biological father, who lived in California, had reddish hair.

Deputy Welty went to the Bare home and searched it but found nothing. After another officer arrived, Welty went to check the field behind the Bare home. Welty walked west into an area filled with heavy brush and trees. He followed a path with his revolver drawn in one hand and his two-way radio in the other. When the footing became treacherous, Welty holstered his gun as a safety precaution, and proceeded down the path. Welty then noticed a white male with sandy blond hair walking casually through the field. The man, who was wearing worn blue jeans and a dungaree-style shirt, appeared to have a sandwich in his right hand and was "high-stepping" through the field toward a nearby construction site.

Because Welty was originally looking for a man with reddish hair, he called a fellow officer on the radio to ask for a better description from Frank Miller. While talking on the radio, Welty became unsure of his footing, looked down, and when he looked up again, found himself facing the man he had seen earlier now pointing a gun at him. Welty subsequently identified the man as Robert Power.

Power told Welty to hand over his sidearm. Welty thrust his hands into the air and then slowly reached for his pistol. Power then ordered Welty to put his hands into the air once again and retrieved Welty's pistol himself. Power asked Welty, "How many others are there?" Deputy Welty told Power that there were "six deputies on the scene." After a lengthy pause, Power asked for and received Welty's radio. Power then ordered the deputy to run in the direction of the construction site and warned him, "If you turn around, I will kill you." Welty jogged about thirty feet, stopped, looked back, and saw Power running west towards U.S. 441. Angeli Bare's body was found in the same general direction later that morning.

Welty ran back to the Bare home and reported that the culprit had his radio and service revolver. The police set up a perimeter but were unable to apprehend the fleeing suspect.

It was late morning or early afternoon before authorities found the body of Angeli Bare in the tall grass of the field behind her home. The body was lying on its right side, gagged and "hog-tied" by the wrists and ankles. The body was nude from the waist down. Lying nearby were her school books, jacket, purse, and an empty paper lunch bag. Officer Welty's service revolver was later found in a wooded area near the canal.

The autopsy revealed that the victim's left eye was blackened and that she had superficial contusions on her neck. In the medical examiner's opinion, the death of Angeli Bare resulted from shock following exsanguination due to the severance of the right carotid artery. The artery was cut by a stab wound on the right side of her neck. The autopsy also revealed injuries to the vaginal and anal area. The doctor estimated that these injuries were the result of the insertion of an oversized foreign object, perhaps a human penis. The doctor approximated the time of death as within thirty minutes of 9:15 a.m. The crime lab serologist found no semen on the victim's underwear. Vaginal, rectal, and oral swabs revealed no spermatozoa. Blood stains found on the victim's underwear were the same blood type as that of the victim.

Police conducted a thorough search of the Bare home. They found no signs of a struggle or forced entry. Angeli's bank had been pried open and a screwdriver was found in the kitchen sink. None of the latent prints found by the crime scene technicians matched Robert Power. Latent fingerprints found on Officer Welty's service revolver also did not match Robert Power. Police found no latent fingerprints of any kind on the victim's body. According to the State's experts, however, three pubic hairs from Angeli's bedspread were indistinguishable from Power's known pubic hairs, and one pubic hair from Angeli's fitted bed sheet was indistinguishable from Power's. Additionally, a single hair recovered during the autopsy from Angeli's pubic area was indistinguishable from Power's pubic hair.

The State's experts agreed that a number of head hairs of unknown origin found in the sheets of Angeli's bedding did not match Power's. Numerous hairs recovered from the bedding and clothing remained unidentified at the time of trial.

Approximately ten days after the murder, Officer Welty identified a photograph of Robert Power as the man who robbed him in the field. A SWAT team executed a search warrant at the residence of Robert Power, who lived at the house with his mother, her youngest daughter, her eldest son, that son's wife, and their three children. Robert Power was found hiding in the attic and was arrested. Police seized a maroon duffle bag from the attic that was close to Power. The duffle bag contained a pistol, some ammunition, a pair of tan driving gloves, a red bandanna, at least three documents with Robert Power's name on them, and a folding knife.

Police also found a box in the front bedroom containing various electronic parts, one of which contained a serial number corresponding to the serial number of the radio that was taken from Deputy Welty. An exhaustive examination of the box revealed numerous latent fingerprints, none of which matched Robert Power's. The crime lab was unable to find any useful latent prints on the radio parts inside the box. Police seized some green, hooded sweatshirts and several denim work shirts from the front bedroom. According to the State's experts, two of three head hairs recovered from the sweatshirts were consistent with Angeli Bare's.

The jury found Power guilty of first-degree murder, sexual battery, kidnapping of a child under the age of thirteen, armed burglary of a dwelling, and armed robbery. The jury recommended death for the homicide. The trial court concurred, finding no mitigating circumstances and four aggravating factors. The court considered and rejected as mitigation the defendant's age of twenty-five years at the time of the crime and the defendant's lack of future dangerousness because he was already serving a prison term of ten consecutive life sentences. The court expressly refused to consider the comparative cost of the death penalty versus life sentences as a mitigating circumstance. The court found in aggravation that (1) the defendant was previously convicted of a felony involving the use or threat of violence; ² (2) the homicide was committed while the defendant was engaged in the commission of the crimes of sexual battery, burglary, and kidnapping; ³ (3) the homicide was especially heinous, atrocious, or cruel; ⁴ and (4) the homicide was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. ⁵ The court sentenced Power to consecutive life terms for the noncapital felonies.

Power raises numerous issues on appeal that he argues require reversal of his conviction for first-degree murder and the capital sentence. ⁶ Power first claims that the evidence in this case was insufficient to sustain the jury verdict. After a thorough review of the record, we are satisfied that the evidence was sufficient to support the conviction. The State offered, among other evidence, that a white male with reddish hair (Power's was sandy blond) was in the Bare house with a gun at approximately 8:55 a.m. The medical examiner testified that death occurred around 9:15 a.m. The man threatened to kill Angeli Bare. Power robbed Deputy Welty at gunpoint at approximately 9:25 a.m. at a location approximately 75 paces from the body. Hair indistinguishable from Power's was found on the bedding in the victim's room and...