Robertson v. State, 81324

Decision Date03 July 1997
Docket NumberNo. 81324,81324
Citation699 So.2d 1343
Parties22 Fla. L. Weekly S404, 22 Fla. L. Weekly S641 Richard Tony ROBERTSON, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

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

Robert A. Butterworth, Attorney General and Barbara J. Yates, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Richard Tony Robertson, a prisoner under sentence of death, appeals his convictions and sentences. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

The following facts were revealed at trial. On Monday, September 2, 1991, the nude, badly decomposed body of Carmella Fuce was found in the bedroom of her Tallahassee apartment. Ms. Fuce was found on her back. A pair of pants were tied around her head and a brassiere was stuffed in her mouth. A teddy bear was between her legs, and an electrical cord was around her neck. The victim's hands were tied behind her back with a piece of cloth and an electrical cord. According to the medical examiner, the cause of death was strangulation asphyxia. The medical examiner further testified that the victim's brassiere had been stuffed down her throat with such force that if she had not been strangled, the gag could have caused her death.

Written on the bedroom wall were the words "Saten sic, Nigger, Fuck, FSU, FAMU, KKK, ANM." The handwriting on the wall matched samples later submitted by Robertson. Ms. Fuce's car was found in the apartment complex parking lot, with the driver's door unlocked. A single key was in the ignition and the anti-theft device on the steering wheel was unlocked.

Identifying himself as "Tony Nixon," Robertson called the Tallahassee Police Department on September 4, 1991. Robertson told police that he knew the victim and wanted to talk with police if someone would come and pick him up. Investigator Springer drove Robertson to the police station and interviewed him. At that time, Robertson denied involvement in the murder. After being interviewed by several investigators, Robertson left the police station. However, he continued to stay in contact with police over the next few days.

On September 9, 1991, Robertson was hospitalized after threatening to kill himself. On September 11, Robertson was released into police custody, at which time he was arrested and taken to the police station. Over a several hour period, Robertson made a number of statements to police. In the first statement to Investigator Springer, Robertson denied killing Ms. Fuce. He continued to deny involvement in an interview with other investigators. However, when Investigator Springer resumed questioning Robertson, Robertson confessed to the murder.

According to Robertson, he hurt Ms. Fuce because he "was off [his] medication" and his "mind was whooped." Robertson explained that after going to a local night club, he went to Ms. Fuce's apartment and she let him in. He and Ms. Fuce were "just playing around" when he tied her up. He got her in a choke hold and "all of sudden she just fell." He tried to revive her but was unsuccessful. A short time later, Robertson told basically the same story to another investigator.

Robertson was charged with I) first-degree premeditated murder; II) burglary with an assault; III) robbery; IV) burglary of a conveyance; and V) grand theft of a motor vehicle. The jury found Robertson guilty of charges I, II, IV, and V. On the robbery charge, the jury found Robertson guilty of the lesser included offense of theft of property worth $300 or more. Robertson testified during the penalty phase and asked that he be sentenced to death.

The jury recommended death by a vote of eleven to one. The trial court found two aggravating factors: 1) the capital felony was committed during the course of a burglary; and 2) the murder was especially heinous, atrocious, or cruel. 1 The court found Robertson's age of nineteen 2 and impaired capacity in mitigation. The court further considered in mitigation Robertson's abused and deprived childhood, his history of mental illness and his borderline functional intelligence. However, the court gave the mitigation little weight and sentenced Robertson to death. Robertson appeals his convictions and death sentence.

Robertson raises eight issues in this appeal. 3 After oral argument, we asked the parties to file supplemental briefs addressing the sufficiency of the evidence to support the burglary with assault conviction and the "committed during the course of a burglary" aggravator. Only five of the nine issues merit discussion.

We begin by addressing Robertson's claim that the trial court erred by failing to order a competency hearing. Robertson is correct that a defendant has a due process right to a determination of competency to stand trial whenever there is reasonable ground to doubt the defendant's competency. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Nowitzke v. State, 572 So.2d 1346, 1349 (Fla.1990); Pridgen v. State, 531 So.2d 951, 954 (Fla.1988). Consistent with this long-standing rule, Florida Rule of Criminal Procedure 3.210(b) requires the trial court to order a competency hearing on its own motion whenever it has reasonable ground to believe that the defendant is not mentally competent to proceed. Accord Lane v. State, 388 So.2d 1022 (Fla.1980) (trial court has responsibility to conduct a hearing to determine competency to stand trial whenever it reasonably appears necessary); Fowler v. State, 255 So.2d 513 (Fla.1971) (failure to hold hearing on question of competency prior to ruling on issue was abuse of discretion). However, on this record the trial court did not abuse its discretion by failing to hold such a hearing.

Robertson maintains that the need for a competency hearing was made apparent to the trial court during the September 25, 1992, hearing on defense counsel's motion for a continuance. In that motion, defense counsel alleged Robertson had refused to meet with him or the investigator, Robertson had a history of mental problems that needed to be checked out for possible use in the penalty phase of the trial, some of Robertson's records were missing and much investigation and work needed to be done in order to prepare for the penalty phase of the trial. Robertson's disruptive behavior throughout the September 25 hearing prompted the trial court to inquire whether court-ordered psychological reports had been received.

The court was reminded that Drs. Brown and McClaren had been appointed at defense counsel's request in April 1992. A discussion of the reports followed. Although there was some disagreement as to how Dr. McClaren's report should be interpreted, defense counsel expressly declined to seek a determination of Robertson's competency. And ultimately, it was revealed that both experts had found Robertson at least minimally competent to stand trial. Under the circumstances, Robertson's competency was not sufficiently in doubt to mandate a hearing on the issue; thus the trial court cannot be faulted for failing to order one.

Next, we address the sufficiency of the evidence to support Robertson's conviction of burglary with an assault. Section 810.02(1), Florida Statutes (1991), defines burglary as:

[E]ntering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.

(Emphasis added). Under the statute, one commits burglary by: 1) "entering" a structure with the intent to commit an offense therein or 2) "remaining in" a structure with the requisite intent. Routly v. State, 440 So.2d 1257 (Fla.1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 888 (1984); Ray v. State, 522 So.2d 963 (Fla. 3d DCA), review denied, 531 So.2d 168 (Fla.1988). The statute also makes consent an affirmative defense to a charge of burglary. State v. Hicks, 421 So.2d 510 (Fla.1982). As explained by the Third District Court of Appeal,

[o]nce consensual entry is complete, a consensual "remaining in" begins, and any burglary conviction must be bottomed on proof that consent to "remaining in" has been withdrawn.

Ray, 522 So.2d at 965.

From our reading of the record, Robertson met his initial burden of establishing that he entered Ms. Fuce's apartment with her consent. See Coleman v. State, 592 So.2d 300, 301-02 (Fla. 2d DCA 1991) (once defendant presents evidence of consensual entry, State has burden to disprove defense of consent beyond a reasonable doubt). However, on this record a rational trier of fact could have found proof of withdrawal of consent beyond a reasonable doubt. Cf. Melendez v. State, 498 So.2d 1258 (Fla.1986). There was ample circumstantial evidence from which the jury could conclude that the victim of this brutal strangulation-suffocation murder withdrew whatever consent she may have given Robertson to be in her apartment. See Ray, 522 So.2d at 966 (withdrawal of consent to remain can be proved by circumstantial evidence). The jury reasonably could have concluded that Ms. Fuce withdrew consent for Robertson to remain when he bound her, blindfolded her, and stuffed her brassiere down her throat with such force that according to the medical examiner she likely would have suffocated from the gag if she had not been strangled first.

Although we find sufficient evidence to support the burglary with an assault conviction, we find insufficient evidence to support Robertson's convictions of burglary of a conveyance and grand theft of an automobile. As noted above, Ms. Fuce's car was found in the parking lot with the driver's door unlocked, a key in the ignition, and the anti-theft device on the steering wheel unlocked. There was no physical evidence that Robertson had ever been inside the car. Although Robertson admitted being unable to start...

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