Quince v. State, 59954

• Decision Date: 04 March 1982
• Docket Number: No. 59954,59954
• Citation: 414 So.2d 185
• Parties: Kenneth Darcell QUINCE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 185

414 So.2d 185

Kenneth Darcell QUINCE, Appellant, v. STATE of Florida, Appellee.

No. 59954.

Supreme Court of Florida.

March 4, 1982.

Rehearing Denied May 27, 1982.

James B. Gibson, Public Defender and James R. Wulchak, Chief, Appellate Div., Asst. Public Defender of the Seventh Judicial Circuit, Daytona Beach, for appellant.

Jim Smith, Atty. Gen. and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

This is a direct appeal from conviction of felony-murder in the first degree and burglary predicated on guilty pleas, and a sentence of death imposed by the trial court alone due to defendant's waiver of a sentencing jury. Art. V, § 3(b)(1), Fla.Const. Our sole task is to review the propriety of the death sentence.

In December of 1979, the body of an eighty-two year old woman dressed in a bloodstained nightgown was found lying on the floor of her bedroom. She had bruises on her forearm and under her ear, a small abrasion on her pelvis, and lacerations on her head, which were severe enough to cause death. She was sexually assaulted while alive, but the medical examiner could not determine whether the victim was conscious or unconscious during the battery. Strangulation was the cause of death.

Based upon a fingerprint identification, appellant was arrested. Although he initially denied knowledge of the incident, he later confessed to the burglary. He also admitted to stepping on the victim's stomach before leaving her house. A month later, when faced with laboratory test results, he admitted that he sexually assaulted the deceased. The grand jury returned an indictment charging the appellant with first-degree murder, burglary, and sexual battery. ¹

Pursuant to plea negotiations, appellant waived the right to a sentencing jury. After hearing and weighing the evidence, the trial judge imposed the death sentence, finding the existence of three aggravating circumstances: 1) the murder was committed during the commission of a rape; 2) the murder was committed for pecuniary gain; and 3) the murder was heinous. He considered and rejected all but one mitigating factor: appellant's inability to appreciate the criminality of his conduct. Due to the conflicting evidence, however, he decided that this factor deserved little weight.

We address first appellant's most forceful argument, in which he asserts that the trial judge erred in giving only little weight to the sole mitigating factor found, substantial impairment of capacity to appreciate the criminality of his act or to conform his conduct to the law. ² The trial judge noted in his sentencing order, and the record supports, that although the experts agreed that Quince was not of normal intelligence, the exact degree of mental impairment could not be conclusively established. Four of the five experts that examined Quince found his mental condition did not warrant application of mitigating factors concerned with mental capacity. The fifth expert found Quince lacked the ability to appreciate the criminality of his acts, and compared his mental abilities to those of an eleven-year old. But age equivalency as an expression of Quince's mental ability was sharply questioned by one expert, and essentially rejected by another. The consensus seems to have been that Quince was of dull normal or borderline intelligence, but was not mentally retarded. No expert had found Quince incompetent to stand trial.

We are well aware that a defendant may be competent to stand trial, yet nevertheless receive the benefit of the mitigating factors involving diminished mental capacity. See Mines v. State, 390 So.2d 332, 337 (Fla.1980), cert. denied, 451 U.S. 916, 101 S.Ct. 1994, 68 L.Ed.2d 308 (1981). But we do not interpret Mines to require any more from a trial judge than that he give due consideration and weight to these factors in his sentence. Here the trial judge recognized the "substantial impairment" mitigating factor, but found that it did not outweigh the three aggravating factors.

This is not a case in which a jury has rendered a recommendation of life based on evidence of mental incapacity and the trial judge has rejected such a recommendation. See, e.g., Neary v. State, 384 So.2d 881 (Fla.1980); Shue v. State, 366 So.2d 387 (Fla.1978); Jones v. State, 332 So.2d 615 (Fla.1976). All of these cases are based on the rationale that the jury's recommendation can only be rejected for a compelling reason, because the jury represents "the conscience and mores of the community in which the crimes were committed." Jones, 332 So.2d at 622 (Sundberg, J., concurring). This is not a case in which the trial judge failed entirely to take the defendant's mental condition into account. See Mines. The trial judge demonstrated in his sentencing order his close consideration of this very factor. Nor is this a case in which the trial judge considered matters he should not have.

Rather, this is a case in which the appellant disagrees with the weight that the trial judge accorded the mitigating factor. But mere disagreement with the force to be given such evidence is an insufficient basis for challenging a sentence. See Hargrave v. State, 366 So.2d 1 (Fla.1978), cert. denied, 444 U.S. 919, 100 S.Ct. 239, 62 L.Ed.2d 176 (1979).

Neither of our sentence review functions, it will be noted, involves weighing or reevaluating the evidence adduced to establish aggravating and mitigating circumstances. Our sole concern on evidentiary matters is to determine whether there was sufficient competent evidence in the record from which the judge and jury could properly find the presence of appropriate aggravating or mitigating circumstances. If the findings of aggravating and mitigating circumstances are so supported, if the jury's recommendation was not unreasonably rejected, and if the death sentence is not disproportionate to others properly sustainable under the statute, the trial court's sentence must be sustained even though, had we been triers and weighers of fact, we might have reached a different result in an independent evaluation.

Brown v. Wainwright, 392 So.2d 1327, 1331 (Fla.1981), cert. denied, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981) (footnote omitted). The trial judge was not unreasonable in failing to give great weight to this mitigating factor, which he nevertheless did find to exist, in the light of contradictory evidence. The trial judge clearly did not ignore every aspect of the medical testimony as the judge did in Huckaby v. State, 343 So.2d 291 (Fla.), cert. denied, 434 U.S. 920, 98 S.Ct. 393, 54 L.Ed.2d 276 (1977). ³

Appellant further assails the sentence on sundry grounds. He claims the murder was not heinous. We believe that the severe beating, wounding, raping, and manual strangulation of an eighty-two year old, frail woman easily qualified as heinous. Cf. Peek v. State, 395 So.2d 492 (Fla.1980), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981) (beating, rape and strangulation of sixty-five year old woman is heinous). He next asserts that the underlying felony of sexual battery may not be used in aggravation. Florida's death penalty statute clearly allows the use of the underlying felony in aggravation, and that statute is constitutional. See Proffitt v Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Appellant contends that there was an improper doubling of aggravating circumstances when the judge found that the homicide was committed during a rape and was committed for pecuniary gain, ⁴ and then used these facts as parts of his heinous finding. But doubling has been disallowed when the underlying felony is robbery or burglary and is considered in addition to the aggravating factor of "committed for pecuniary gain." See Provence v. State, 337 So.2d 783 (Fla.1976), cert. denied,...