Raulerson v. State

• Decision Date: 16 March 1978
• Docket Number: No. 47991,47991
• Parties: James David RAULERSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 826

358 So.2d 826

James David RAULERSON, Appellant, v. STATE of Florida, Appellee.

No. 47991.

Supreme Court of Florida.

March 16, 1978.

Rehearing Denied June 5, 1978.

David J. Busch, Asst. Public Defender, Tallahassee, for appellant.

Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey and Charles W. Musgrove, Asst. Attys. Gen., Tallahassee, for appellee.

ADKINS, Justice.

This is a direct appeal from a judgment adjudging defendant guilty of murder in the first degree and a sentence of death.

The defendant, Raulerson, at approximately 11:00 o'clock p. m., Sunday night, April 27, 1975, walked to the back door of the Sailmaker restaurant in Jacksonville, Florida, where he pointed a .38 caliber revolver at Leonard J. Wilson, a young man working at the restaurant. Raulerson then pulled a wool mask over his head, forcing Wilson to enter the restaurant and lie face down on the floor. Raulerson went to the manager's office where the manager, Robert E. Couture, was sitting with his wife, Nancy Couture, "cashing out receipts" for the restaurant. He forced them to lie on the floor with their face down and then was heard scooping the restaurant's money off the table. Raulerson, after cutting the telephone wire, went to the back of the restaurant where everyone present was forced to lie down with their face to the floor.

Raulerson then took a young secondary school art teacher who was working evenings at the restaurant, to a back room with him. He forced her to take off her clothes and place her mouth on his penis. He then inserted his penis in her vagina, later pulling his penis out of her vagina and ejaculating on her stomach.

In the meantime, Raulerson's cousin, Jerry Leon Tant, wearing a mask similar to the one worn by Raulerson, was standing guard over the others in the restaurant. Officer English, answering a call, came to the scene and started pushing a buzzer at the door of the restaurant. When there was no response to the buzzer, Officer English opened the door, saw Tant standing at the door with the mask on and an automatic pistol in his hand. He shot Tant with Tant falling to the floor. Officer English then bent over Tant.

Raulerson at this time left the young art teacher, went out into the main part of the restaurant, saw Officer English bending over Tant, and shot Officer English in the chest after which Officer English cried out that he was hurt. Officer Stewart, who was standing behind Officer English, started shooting Tant who was moving. Raulerson fired five more shots from his revolver, emptying the revolver and shooting Officer Stewart in the heart, killing him. During this period there were approximately fifteen shots fired. Raulerson then ran from the immediate scene of the shooting clutching his side where he had been shot, trying to escape. After finding no viable escape route, Raulerson returned, took off his mask, laid down his gun, and surrendered.

An indictment was returned charging defendant with murder in the first degree. He was convicted and the sentence of death was imposed. This appeal resulted.

Defendant attacks the Florida death penalty, contending that it violates the provisions of the Fifth, Eighth and Fourteenth Amendments of the United States Constitution and Article I, Sections 2, 9 and 17, Florida Constitution, because arbitrary, standardless discretion still exists in the process by which the penalty is determined and imposed. He also says that the death penalty is inherently unconstitutional in that it is cruel and unusual punishment.

Among other things, the defendant says that the state attorney is granted unbridled discretion in that he has a choice in filing capital charges against one co-defendant and not against another equally culpable co-defendant; that he can seek conviction for any lesser degree of a capital offense or for a lesser offense; and that he has discretion in plea negotiations.

In considering the question of discretion in the sentencing procedure, this Court in State v. Dixon, 283 So.2d 1 (Fla.1973), discussed Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and said "The mere presence of discretion in the sentencing procedure cannot render the procedure violative of Furman v. Georgia, supra ; it was, rather, the quality of discretion and the manner in which it was applied that dictated the rule of law which constitutes Furman v. Georgia, supra.

"Discretion and judgment are essential to the judicial process, and are present at all stages of its progression arrest, arraignment, trial, verdict, and onward through final appeal. Even after the final appeal is laid to rest, complete discretion remains in the executive branch of government to honor or reject a plea for clemency. See Fla.Const., art. IV, § 8, F.S.A., and U.S.Const., art. II, § 2.

"Thus, if the judicial discretion possible and necessary under Fla.Stat. § 921.141, F.S.A., can be shown to be reasonable and controlled, rather than capricious and discriminatory, the test of Furman v. Georgia, supra, has been met. What new test the Supreme Court of the United States might develop at a later date, it is not for this Court to suggest.

"Capital punishment is not, per se, violative of the Constitution of the United States (Furman v. Georgia, supra ) or of Florida. Wilson v. State, 225 So.2d 321 (Fla.1969)." pp. 6-7.

This reasoning and holding was followed and affirmed in Sullivan v. State, 303 So.2d 632 (Fla.1974). These cases are dispositive of the issues raised on this point.

Defendant then contends that the State failed to prove that Michael David Stewart was dead in that the proof failed to show that the Michael David Stewart named as the deceased in the indictment was the victim. He cites Freeman v. State, 101 So.2d 887-88 (Fla.2d DCA 1958), where the court held that proof of identity was an essential element of the corpus delicti. Defendant also refers to Smith v. State, 80 Fla. 710, 86 So.2d 640 (1920), where the information alleged that the victim's name was "Mary Ida Bogich," but the proof only shows that a "little girl" was killed. This was held insufficient.

The proof of the identity of the deceased must be established beyond a reasonable doubt. If circumstantial evidence is resorted to, the proof must be the most convincing, satisfactory, unequivocal proof that is compatible of the nature of the case. Johnson v. State, 201 So.2d 492 (Fla.4th DCA 1967).

The court in Trowell v. State, 288 So.2d 506 (Fla.1st DCA 1973), set out nine methods that could be utilized in proving this element of the corpus delicti.

"It would have been manifestly easy for the State in its zeal to prove beyond a reasonable doubt that Raymond Jones was dead and to identify his dead body:

"1. There could have been the testimony of a relative or friend who saw his dead body as late as the funeral service;

"2. The funeral director, if he knew him personally;

"3. Any person who saw his corpse at the hospital who knew him personally;

"4. A photograph could have been taken of the cadaver which was autopsied which could later at trial have been identified by any person who knew him in his lifetime;

"5. A picture properly identified as Raymond Jones when alive could have been identified at trial as the person upon whom Doctor Klein performed the autopsy;

"6. Since allegedly death occurred sometime after the incident at the Santa Fe Bar, a certified copy of the death certificate could have been proffered;

"7. Circumstantial evidence, such as the contents of the body's billfold, rings and other personal effects, garments, etc., could have been utilized.

"8. Scientific evidence, such as fingerprints, identification of teeth, hair, etc., tending to establish identity, may have been available to the State; and finally

"9. The prosecution could have at least proffered the hospital records where presumably Raymond Jones died, as well as the bullet which caused the death of the person whose body was somehow delivered to the autopsy room of the Alachua General Hospital on July 3, 1972." At 508.

In the case sub judice, Officer James E. English testified that he went to the Sailmaker Restaurant with his "partner, Officer Mike Stewart," and that Mike Stewart was shot. He identified the individual in a photograph as being Mike Stewart. The pathologist performed an autopsy on the body of the person identified in the photograph as Officer Stewart. Officer Weathington saw "Officer Stewart" fall when he was hit by gunfire and he pulled "Officer Stewart" out of the line of fire. He checked "Officer Stewart's" pulse and stated "Officer Stewart has no pulse, and in my estimation, he was dead at the time." This evidence is sufficient to prove the fact that the victim died. See Sims v. State, 184 So.2d 217 (Fla.2d DCA 1966).

Defendant says there was a fatal variance in that the information charged that defendant murdered "Michael David Stewart" and the proof showed that "Mike Stewart" was the name of the deceased. Defendant relies upon Davis v. People, 19 Ill. 74 (1857), and Timms v. State, 44 Tenn. (4 Cold.) 138 (1867).

In Davis v. People, supra, defendant was charged with the murder of "Seth Taylor," but the victim was identified by the witnesses as "Taylor." This warranted a reversal.

Timms v. State, supra, charged defendant with the murder of "H. G. Trobeck," but the victim was referred to during testimony as "Gilbert Trobeck" or "the deceased Trobeck." The Tennessee Supreme Court held that in the absence of any proof that the victim was known as H. G. Trobeck, the variance was fatal and a new trial was ordered.

In Branch v. State, 94 Fla. 286, 115 So. 143 (1928), defendant was charged with assault with intent to commit murder upon one "Harry C. Beaty." The testimony showed that the true name of the victim was "Henry Beaty." While there was no testimony that the victim was as well known by the name of "Harry" as by the name of "Henry," or that he was generally or commonly known as "Harry," there...