Robinson v. State, 74113

• Decision Date: 15 January 1991
• Docket Number: No. 74113,74113
• Citation: 16 Fla. L. Weekly 107,574 So.2d 108
• Parties: 16 Fla. L. Weekly 107 Johnny L. ROBINSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 108

574 So.2d 108

16 Fla. L. Weekly 107

Johnny L. ROBINSON, Appellant, v. STATE of Florida, Appellee.

No. 74113.

Supreme Court of Florida.

Jan. 15, 1991.

Rehearing Denied Feb. 27, 1991.

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

Robert A. Butterworth, Atty. Gen., and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.

BARKETT, Justice.

Johnny L. Robinson appeals the reimposition of the death sentence. ¹ Robinson was convicted of first-degree murder, kidnapping, armed robbery, and sexual battery. This Court affirmed the convictions and vacated the original sentence of death. Robinson v. State, 520 So.2d 1 (Fla.1988). Upon resentencing, the jury returned an advisory verdict, recommending death by a vote of eight to four. The trial court found six aggravating circumstances ² and three nonstatutory mitigating circumstances, ³ and again imposed the death penalty. We affirm.

The resentencing jury heard evidence showing that Beverly St. George left her Plant City home, bound for Quantico, Virginia, on the morning of August 11, 1985. Her car broke down enroute. Police discovered her partially clothed body the next morning in a cemetery located in St. Johns County, with two gunshot wounds to her head. Robinson and Clinton Bernard Fields, seventeen, were arrested for the murder.

Robinson gave a statement to the police explaining that he and Fields came upon St. George's car while traveling to Orlando on I-95 and pulled over to render aid. She accompanied them to the cemetery, where Robinson alleged she engaged in consensual sexual activity on the hood of his car. Robinson claimed that the gun, which he had removed from his belt and placed on the hood, went off accidently, shooting her in the face. Robinson then shot her again, stating: "How do you tell someone I accidently shot a white woman?"

Fields testified against Robinson at the guilt phase of the first proceedings and completely contradicted Robinson's version of the crimes. He refused to testify at the resentencing hearing and the court allowed his redacted testimony to be read to the jury. That testimony indicated that Robinson pulled in behind St. George's parked car and ordered her into his car at gunpoint, where he handcuffed her. He drove to the cemetery, where he sexually assaulted her on the hood of his car. He then ordered Fields to do the same, and Fields complied. Afterward, Robinson expressed concern that she could identify them. He then walked up to her and put the gun to her cheek. Fields heard a shot, saw St. George fall, and watched Robinson stand over her and fire a second shot.

The state played a video tape of the crime scene and described the evidence recovered there, including a .22-caliber long rifle shell casing and a black purse strap.

The defense presented the testimony of Dr. Harry Krop, a clinical psychologist. Dr. Krop found significance in Robinson's background and upbringing. He testified that Robinson's childhood was marked by constant physical abuse. He was subjected to beatings with a leather belt, with a switch while his hands were tied, and to beatings while forced to squat with a broom handle between his legs for indefinite periods. Robinson also was sexually abused at the age of seven by his uncle, by the fifteen-year-old wife of his grandfather, and at migrant labor camps between the ages of twelve and fourteen.

Dr. Krop testified that Robinson's background produced an antisocial personality disorder and a psychosexual disorder. He indicated that both disorders were treatable. The doctor testified that he believed seven nonstatutory mitigating circumstances existed, including Robinson's use of alcohol on the night of the offenses.

Robinson lists fourteen errors that he argues mandate reversal. First, Robinson contends that the trial court erred in refusing to give the following instruction on accomplices:

You should use great caution in relying on the testimony of a witness who claims to have helped the defendant commit a crime. This is particularly true when there is no other evidence tending to agree with what the witness says about the defendant.

Fla.Std.Jury Instr. (Crim.) 2.04(b).

This instruction generally is given in the guilt phase of the trial. Robinson claims that this instruction was relevant to a critical element of one theory of the penalty phase defense--that Robinson was no more culpable than Fields and that Robinson should receive no greater punishment than the life sentence received by Fields. The state argues that by finding Robinson guilty, the original jury implicitly determined that Fields's version of the events was credible. Therefore, the instruction was inapplicable because Robinson's greater culpability had already been established.

We agree that the defendant is entitled to an instruction on a theory of defense if there is evidence to support it. Bryant v. State, 412 So.2d 347 (Fla.1982). In this case, however, the relative culpability of Fields and Robinson was never an issue. No evidence was presented suggesting that Fields's culpability was equal to, much less greater than, Robinson's. Although defense counsel is certainly free to present evidence and argue the relative culpability of all perpetrators in the penalty phase and is entitled to appropriate instructions thereon, we find no evidence under these facts that warranted the instruction for this purpose. Certainly, the safer course of conduct, whenever an accomplice testifies, is to give the instruction. However, we do not find an abuse of discretion in these circumstances.

Likewise we find no merit in Robinson's next argument, that the trial court erred in refusing to instruct the jury on specific nonstatutory mitigating circumstances. Robinson suggests that the "catch-all" instruction, which explains to the jury that they may consider any aspect of the defendant's character or record and any other circumstances of the offense, ⁴ denigrates the importance of the nonstatutory mitigating circumstances. We do not agree that the instruction requires or encourages jurors to consider everything within these categories as a single factor, thereby distorting the weighing process. Jackson v. State, 530 So.2d 269, 273 (Fla.1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 882, 102 L.Ed.2d 1005 (1989). The instruction is not ambiguous, and we find no reasonable likelihood that the jurors understood the instruction to prevent them from considering and weighing any "constitutionally relevant evidence." Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990).

We also reject Robinson's next claim that he should have been permitted to establish his intoxication at the time of the crime solely through the testimony of Dr. Krop. Dr. Krop would have testified that Robinson told him that he had been intoxicated during the incident. As an expert witness who examines and tests a patient or a subject, Dr. Krop obviously could testify to what Robinson told him as a factor contributing to his diagnosis and opinion. § 90.704, Fla.Stat. (1983). However, Robinson's hearsay statement to the doctor during a medical interview, in the absence of any evidence of impairment at trial, is insufficient to establish the existence of this mitigating circumstance. Holsworth v. State, 522 So.2d 348, 352 (Fla.1988); Johnson v. State, 478 So.2d 885, 886-87 (Fla. 3d DCA 1985), dismissed, 488 So.2d 830 (Fla.1986).

We reject Robinson's argument that a mistrial should have been granted because the venire may have known that Robinson was being resentenced. This claim is based upon a sign posted in the courthouse directing Robinson's jury to the proper courtroom. The sign described the proceeding as a "Criminal re-sentencing hearing." Counsel moved for a mistrial, arguing that the sign implied that Robinson previously had been sentenced to death and thus violated his right to due process and a fair trial. Robinson acknowledges that Jennings v. State, 512 So.2d 169 (Fla.1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1061, 98 L.Ed.2d 1023 (1988), controls, but urges reconsideration of Jennings. We decline. As in Jennings, there is absolutely no indication in this record that the jurors knew anything about what transpired in the previous trial.

Robinson next argues that the death sentence is not justified. He contends that three of the six aggravating circumstances are invalid, ⁵ that additional mitigating circumstances should have been found, and that all of the mitigating circumstances outweigh the remaining valid aggravating circumstances.

As the state points out, the prior jury, in finding Robinson guilty of premeditated murder, accepted Fields's version of the events. That version indicates that St. George was abducted at gunpoint, handcuffed, transported to a remote, desolate cemetery, and sexually abused by both Robinson and Fields. After the sexual batteries, Robinson expressly told Fields that he would have to kill St. George because she could identify him and his car. He then shot her twice.

However, we note that the medical examiner testified that St. George was rendered unconscious immediately after the first bullet struck her head and that death occurred within several seconds. Ordinarily, an instantaneous or near-instantaneous death by gunfire does not satisfy the aggravating circumstance of heinous, atrocious, or cruel. Brown v. State, 526 So.2d 903, 907 (Fla.), cert. denied, 488 U.S. 944, 109 S.Ct. 371, 102 L.Ed.2d 361 (1988). As in Brown, the fatal shot to St. George was not accompanied by additional acts setting it apart from the norm of capital felonies, and there was no evidence that it was committed "to cause the victim unnecessary and prolonged suffering." Id. See also Cochran v. State, 547 So.2d 928, 931 (Fla.1989) (death resulted from single gunshot following abduction at gunpoint); Scull v. State, 533 So.2d...