Ray v. State

• Citation: 755 So.2d 604
• Decision Date: 03 February 2000
• Docket Number: No. SC92421.,SC92421.
• Parties: Terry Paul RAY, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

755 So.2d 604

Terry Paul RAY, Appellant, v. STATE of Florida, Appellee.

No. SC92421.

Supreme Court of Florida.

February 3, 2000.

Rehearing Denied May 1, 2000.

Nancy A. Daniels, Public Defender and Nada M. Carey, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Stephen R. White, Assistant Attorney General, Tallahassee, Florida, for Appellee.

PER CURIAM.

We have for review the judgment and sentence of the trial court adjudicating Terry Paul Ray guilty of first-degree murder, robbery, and grand theft, and imposing a sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm the conviction for first-degree murder but reduce the sentence to life imprisonment.

On September 17, 1996, Terry Paul Ray (Ray) and his cousin, Roy Hall (Hall), agreed to rob the Stateline Liquor Store near the Florida-Georgia border. Ray traveled to Hall's home earlier in the evening and while there the two devised the robbery plan. Ray and Hall borrowed a pickup truck from one of Hall's relatives. Inside the truck they loaded a number of weapons and ammunition, including a Davis Industries 380 pistol, a SKS 7.62 millimeter rifle and magazine, a 9 millimeter Berretta pistol, an M-1 carbine semiautomatic rifle, multiple .30-caliber magazines, and three 9 millimeter magazines.

Ray and Hall entered the store shortly after 10 p.m., as the store was closing. Both were disguised in dark masks which completely obscured their faces, and both wore gloves and dark clothing.¹ According to witnesses, the short, stocky man (Hall) came in first, armed with a handgun, and did all the talking. He gave orders to the victims and to his accomplice and threatened to kill the victims if they failed to comply with his demands. The taller, slimmer man (Ray) stood in the background, armed with a handgun and an M-1 rifle, which was slung over his shoulder. Once they had gotten the money, Hall demanded the keys to an employee's 1987 Nissan Sentra and directed Ray to bring the car around. The robbery took approximately five minutes. Store employees called 911 soon after Ray and Hall left. Four sheriffs deputies responded to the call.

Upon leaving the store, Ray and Hall, pursuant to their plan, traveled to a nearby location to abandon the Sentra and resumed travel in the pickup truck. Shortly thereafter, the pickup truck developed a mechanical problem, most likely a dragging muffler or exhaust pipe. The two pulled off the road to fix the problem. Hall climbed under the truck while Ray held a flashlight. They were in the process of examining the truck when Deputy Lindsey appeared. Lindsey radioed the station and told them he was stopping near a red or orange pickup truck, which was already stopped. This communication occurred approximately twelve minutes after the 911 call reporting the liquor store robbery. A few minutes after his initial radio contact, Lindsey called for backup.

Shortly after the call, a gun battle ensued, during the course of which Lindsey was killed. Ray and Hall were in the process of escaping in the pickup truck just as Deputy Wade arrived on the scene, between 10:30 and 10:45 p.m. Wade testified that he observed Lindsey slumped over behind the open driver's door of his patrol car, with his shotgun beneath him. Lindsey had been shot in the right leg and fatally shot in the left temple. The passenger door was open and Lindsey's spotlight was aimed toward the front of his vehicle. Wade saw sparks coming from the rear of the retreating vehicle and heard a popping noise, which he thought at the time was gunfire. Upon reflection, he said he could not be sure it was gunfire, there were no bullet holes in his car, and he did not see any muzzle flashes. The lone civilian witness could only identify the noise as loud or sharp.

Deputy Yancey, who arrived just seconds after Wade, pursued the pickup truck. After a three-mile chase, Deputies Yancey and Leigh surrounded the truck and stopped it. Hall exited the truck, by either falling out or jumping out; he appeared to be shot. Ray got out with his arms in the air. Several items, including an M-1 .30-caliber rifle clip, were removed from Ray's pockets.

Paramedics testified that they treated Ray and Hall at the scene. Hall had gunshot wounds to his head, chest, and right arm, which were caused by a shotgun like the one carried by Lindsey. He was loud and belligerent, and denied killing anyone. At one point, he asked if the deputy had died. Ray had not been shot, but he had sustained an injury to his forehead in a scuffle with police during his arrest.

The M-1 rifle and the Berretta were found in the cab of the pickup truck. The rifle was halfway between the driver's side and passenger's side with the barrel on the floorboard and the stock on the seat. The Berretta lay on the seat directly behind the steering wheel. Two Halloween masks were found behind the front seat. A large cache of weapons was found in the toolbox in the bed of the truck, along with flak jackets, clothing, and the money bags and currency stolen from the Stateline Liquor Store. The exterior of the pickup truck had been struck by buckshot, which came from Deputy Lindsey's shotgun.

Investigation of the scene of the shooting revealed the ground in front of Lindsey's car, where the truck had been parked, was strewn with spent .30-caliber shell casings. Ballistic experts testified all the shell casings were fired from the .30-caliber M-1 carbine rifle. The interior of the pickup truck contained .30-caliber cartridge casings on both sides of the floorboard and the driver's seat. All were fired from the .30-caliber M-1 carbine rifle. The bullets that killed Lindsey were fired from the M-1 rifle.

A single fingerprint, from Ray's left ring finger, was found on the M-1 rifle. Ray's palm prints were also identified on the hood of Lindsey's car. Both Ray and Hall were tested for gunshot residue. Hall, whose results were negative, was tested at the hospital seven hours after the shooting. Ray, who tested positive, was tested four to five hours after the shooting. Nine particles were found on Ray's hands—four on the right palm, three on the left palm, and two on the right back.

The jury was charged and retired to deliberate. They returned with a guilty verdict on each of the counts charged. During the penalty phase, the State presented no evidence. Ray presented evidence of his low I.Q., his stable family life, and his passive and compliant role in the robbery. After this evidence was presented, the jury retired to deliberate on the issue of Ray's sentence. They returned a verdict of death by a vote of seven to five.

A joint sentencing hearing for Ray and Hall was held on November 12, 1997. Ray testified that he participated in the robbery with Hall because he was "in fear" and followed Hall's orders because he thought Hall might hurt him if he did not go along. He also testified to the facts surrounding the shootout with Deputy Lindsey. Ray introduced the transcript of medical testimony presented at Hall's trial which indicated Hall's injuries were consistent with a person standing with his arm raised in a shooting position while facing Deputy Lindsey. After hearing argument, the trial judge orally imposed the death sentence on Ray and sentenced Hall to life. In his sentencing order the trial judge found three aggravating factors: (1) previous conviction of a violent felony, based on the contemporaneous robbery; (2) murder in the course of a felony, based on the contemporaneous robbery; and (3) murder of a law enforcement officer. Mitigating factors included one statutory mitigator, that Ray had no significant criminal history, and five nonstatutory mitigators: (1) Ray has an I.Q. of 75; (2) Ray exhibits signs of suffering from depression; (3) Ray's father suffers from depression and there is a family history of low intelligence; (4) Ray was born premature, possibly resulting in brain damage; and (5) Ray was a loving husband and a caring father to his three children.

On appeal Ray raises six issues, three of which pertain to the guilt phase and three to the penalty phase of this capital proceeding.² He first challenges his conviction for first-degree felony murder, arguing that several intervening acts prevented this murder from being connected to the robbery of the liquor store. Ray contends the trial court's failure to instruct the jury on the "independent act" doctrine was reversible error. We reject this argument. While a defendant is entitled to have the jury instructed on the law applicable to his theory of defense, an instruction is not necessary where there is no evidence to support it. There is no evidence to warrant the giving of such a charge in this case. See Hansbrough v. State, 509 So.2d 1081 (Fla.1987)

; Smith v. State, 424 So.2d 726 (Fla.1982); Lewis v. State, 591 So.2d 1046 (Fla. 1st DCA 1991).

The "independent act" doctrine arises when one cofelon, who previously participated in a common plan, does not participate in acts committed by his cofelon, "which fall outside of, and are foreign to, the common design of the original collaboration." Dell v. State, 661 So.2d 1305, 1306 (Fla. 3d DCA 1995) (quoting Ward v. State, 568 So.2d 452 (Fla. 3d DCA 1990)). Under these limited circumstances, a defendant whose cofelon exceeds the scope of the original plan is exonerated from any punishment imposed as a result of the independent act. Id.See also Parker v. State, 458 So.2d 750 (Fla.1984)

. Where, however, the defendant was a willing participant in the underlying felony and the murder resulted from forces which they set in motion, no independent act instruction is appropriate. See Lovette v. State, 636 So.2d 1304 (Fla.1994); Perez v. State, 711 So.2d 1215 (Fla. 3d DCA),

review denied, 728 So.2d 204 (Fla.1998), and cert. denied, ___ U.S. ___, 119 S.Ct. 1772, 143 L.Ed.2d 801 (1999); ...