Preston v. State

• Decision Date: 29 October 1992
• Docket Number: No. 78025,78025
• Parties: 17 Fla. L. Week. S669 Robert Anthony PRESTON, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 404

607 So.2d 404

17 Fla. L. Week. S669

Robert Anthony PRESTON, Jr., Appellant, v. STATE of Florida, Appellee.

No. 78025.

Supreme Court of Florida.

Oct. 29, 1992.

James B. Gibson, Public Defender and Michael S. Becker, Asst. Public Defender, Seventh Judicial Circuit, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., and Kellie A. Nielan, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Robert Anthony Preston, Jr., appeals the sentence of death imposed upon him after resentencing. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const.

Preston was convicted of murdering Earline Walker, a night clerk at a convenience store. A police officer on routine patrol discovered that Walker was missing from the store on the night of January 8, 1978. The officer also found that a sum of money was missing from the store. Walker's nude, mutilated body was found the next day in an open field a few miles from the store. She had sustained multiple stab wounds and lacerations resulting in her near decapitation.

Preston was convicted of first-degree murder, kidnapping, and robbery. He was sentenced to death. At the original sentencing, the trial court found four aggravating circumstances: (1) Preston was previously convicted of a violent felony (throwing a deadly missile into an occupied vehicle); (2) the murder was especially heinous, atrocious, or cruel; (3) the murder was committed during the course of a felony; and (4) the murder was cold, calculated, and premeditated. The trial court found no mitigating circumstances.

This Court affirmed the conviction on direct appeal. The Court struck one of the aggravating factors found by the trial judge, ¹ but nevertheless affirmed the death sentence. Preston v. State, 444 So.2d 939 (Fla.1984). We affirmed the denial of relief on Preston's first motion for postconviction relief, Preston v. State, 528 So.2d 896 (Fla.1988), cert. denied, 489 U.S. 1072, 109 S.Ct. 1356, 103 L.Ed.2d 824 (1989), and denied his petitions for writ of error coram nobis and for writ of habeas corpus. Preston v. State, 531 So.2d 154 (Fla.1988).

On appeal from the denial of relief on Preston's second postconviction motion, this Court vacated the death sentence and ordered resentencing. Preston's prior felony of throwing a deadly missile into an occupied vehicle had been set aside due to ineffective assistance of trial counsel, leaving only two of the four aggravating circumstances found by the trial court. Because mitigating evidence was introduced at the penalty phase and because the jury recommended death by only a one-vote margin, the Court was unable to say that the elimination of this aggravating factor constituted harmless error. Preston v. State, 564 So.2d 120 (Fla.1990).

The circuit court held a new penalty phase hearing after which the jury recommended the death sentence by a vote of nine to three. However, because it was discovered that one of the jurors had not accurately responded to voir dire interrogation, the trial court granted a new penalty phase trial. At the second resentencing hearing, a new jury unanimously recommended the death penalty. The court imposed the death penalty, finding four aggravating circumstances: (1) the murder was committed while Preston was engaged in a kidnapping; (2) the murder was especially heinous, atrocious, or cruel; (3) the murder was committed for the purpose of avoiding arrest; and (4) the murder was committed for pecuniary gain. The court found one statutory mitigating factor (Preston's age) and five nonstatutory mitigating factors but afforded the mitigation only minimal weight.

In the first issue on appeal, Preston argues that the resentencing court erred in finding aggravating circumstances not found by the trial judge in the original sentencing proceeding. At the first trial, the judge found that the murder was committed for pecuniary gain but determined that factor to be merged with the aggravating factor that the murder was committed in the course of a felony. The judge also found that the murder was not committed for the purpose of avoiding arrest. The State did not appeal those rulings. At resentencing, the State again submitted those aggravating factors and the resentencing judge found them to be established. Preston argues that the resentencing court is barred by principles of double jeopardy, res judicata, law of the case, and fundamental fairness from finding aggravating circumstances that were not found by the original sentencer.

The United States Supreme Court has held the Double Jeopardy Clause applicable to capital-sentencing proceedings. See Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). In Bullington, the Court held that a defendant sentenced to life imprisonment by a capital jury is protected by the Double Jeopardy Clause from imposition of the death penalty when his conviction is reversed and he is retried and reconvicted. The Court recognized that when a defendant obtains a reversal of his conviction on appeal, the general rule is that the slate has been wiped clean. Thus, if he is convicted again, he may be subjected to any lawful punishment. Id. at 442, 101 S.Ct. at 1860. The "clean slate" rule does not apply, however, when a conviction is reversed on grounds of insufficient evidence, i.e., where the State fails to prove its case. The Court reasoned that the capital-sentencing scheme at issue in Bullington resembled a trial on the issue of guilt or innocence, explicitly requiring the jury to determine whether the prosecution had proved its case. Thus, the jury's decision to impose a sentence of life imprisonment after the first conviction amounted to an acquittal of the death penalty under double jeopardy principles. See also Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984) (Double Jeopardy Clause barred imposition of death penalty upon resentencing where trial judge had found no aggravating circumstances and entered a sentence of life imprisonment).

However, the Court has refused to extend Bullington further. In Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), at the penalty phase of the defendants' capital murder trial, the State argued the existence of two statutory aggravating factors: (1) the murder was committed for pecuniary gain; and (2) the murder was especially heinous, cruel, or depraved. The sentencing judge found the heinous, cruel, or depraved factor to exist, but rejected the pecuniary gain factor, believing it to be applicable only to contract killings. The defendants were sentenced to death. On appeal, the Arizona Supreme Court reversed the convictions because of trial error and remanded for a new trial. With regard to the penalty phase, the appellate court found insufficient evidence to support the finding of heinous, cruel, or depraved. The court held that the pecuniary gain factor was not limited to contract killings and determined that factor could be considered at resentencing.

The defendants were reconvicted and again sentenced to death. The trial judge found the factors especially heinous, cruel, or depraved and pecuniary gain to be present. On appeal, the Arizona Supreme Court upheld the pecuniary gain factor, but again rejected the heinous, cruel, or depraved factor for lack of sufficient evidence. However, after weighing the aggravating and mitigating circumstances, the court concluded that the death penalty was appropriate.

Upon review, the United States Supreme Court rejected the premise that a capital sentencer's failure to find a particular aggravating circumstance alleged by the prosecution constitutes an acquittal of that circumstance for double jeopardy purposes. The Court noted that the appropriate inquiry is whether the sentencing judge or reviewing court has decided that the prosecution has not proved its case that the death penalty is appropriate. Poland, 476 U.S. at 154, 106 S.Ct. at 1754. The Court refused to view a capital-sentencing proceeding as a set of mini trials on the existence of each aggravating circumstance. The Court found that the trial court's rejection of the pecuniary gain aggravating circumstance was not an "acquittal" of that circumstance for double jeopardy purposes and did not foreclose its reconsideration upon resentencing. Further, because the reviewing court did not find the evidence legally insufficient to justify imposition of the death penalty, there was no "acquittal" of the death penalty. Thus, the Double Jeopardy Clause "did not foreclose a second sentencing hearing at which the 'clean slate' rule applied." Id. at 157, 106 S.Ct. at 1756.

Applying these principles to the case before us, we find that no double jeopardy violation occurred. Bullington is not applicable because neither the trial judge nor this Court on review found that the State failed to prove its case that the defendant deserved the death penalty. Because there was no acquittal of the death penalty, the State was not barred from resubmitting the aggravating factors not found by the judge in the original penalty phase proceeding. See also Zant v. Redd, 249 Ga. 211, 290 S.E.2d 36 (1982) (if death-sentenced defendant overturns sentence on technical grounds, the sentence is nullified and the State and defense start anew; on resentencing the State may offer any evidence on aggravating circumstances, including those submitted to the first jury but not listed by the jury in support of the death sentence), cert. denied, 463 U.S. 1213, 103 S.Ct. 3552, 77 L.Ed.2d 1398 (1983); State v. Koedatich, 118 N.J. 513, 572 A.2d 622 (1990) (double jeopardy did not prevent State upon resentencing from relying on aggravating factors not unanimously found by the jury in the initial sentencing proceeding); Hopkinson v. State, 664 P.2d 43 (Wyo.) (allowing resentencing jury to consider evidence concerning aggravating circumstances deemed inapplicable in first penalty hearing did not violate double jeopardy), ...