Robinson v. State

• Decision Date: 21 November 1996
• Docket Number: No. 85605,85605
• Citation: 684 So.2d 175
• Parties: 21 Fla. L. Weekly S499 Michael L. ROBINSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 175

684 So.2d 175

21 Fla. L. Weekly S499

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

No. 85605.

Supreme Court of Florida.

Nov. 21, 1996.

James B. Gibson, Public Defender and Christopher S. Quarles, Chief, Capital Appeals, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General and Margene A. Roper, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Michael L. Robinson appeals the sentence of death imposed after his conviction of first-degree murder. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. Because the trial court failed to consider and weigh evidence of substantial mitigation found in the record, we vacate appellant's death sentence. See Farr v. State, 621 So.2d 1368 (Fla.1993).

On January 23, 1995, appellant pled guilty to the first-degree murder of Jane Silvia. Prior to the plea colloquy, appellant's counsel explained that appellant did not wish to proceed to trial, did not wish to present any defense, did not want his attorneys to file any motions on his behalf, and did not want to present any mitigation at the penalty phase. Appellant expressed that he desired to die and was "seeking the death penalty in this case."

On March 30, 1995, appellant waived his right to a penalty phase jury and the cause proceeded to sentencing before the trial court. The State called as its sole witness Detective David Griffin, who was the lead homicide investigator in the case and had taken two taped statements from appellant. At the penalty phase, Detective Griffin played the second taped interview in which appellant admitted to killing Jane Silvia. Relying on Koon v. Dugger, 619 So.2d 246 (Fla.1993), the defense proffered mitigating evidence which it had received from a psychologist, Dr. Berland, and appellant's mother. The State also presented brief testimony from the victim's brother who told the court that Robinson "destroyed my family." In addition to the evidence presented at the hearing, the court directed that a presentence investigation be conducted as to the circumstances of the crime and the defendant's background. A presentence report was subsequently completed and filed with the court.

On April 12, 1995, the trial court sentenced appellant to death. The court found three aggravating circumstances: (1) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest, see § 921.141(5)(e), Fla. Stat. (1995); (2) the capital felony was committed for pecuniary gain, see id. § 921.141(5)(f); and (3) the capital felony was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification, see id. § 921.141(5)(i). The court concluded that the aggravating circumstances could not be outweighed by any potential mitigating circumstances and sentenced appellant to death.

On appeal, Robinson raises five issues. ¹ First, Robinson argues that, although he waived the presentation of mitigating evidence the trial court erred by not considering valid mitigation in violation of our decision in Farr v. State, 621 So.2d 1368 (Fla.1993).

It is well settled that mitigating evidence must be considered and weighed when contained anywhere in the record, to the extent it is believable and uncontroverted. E.g., Santos v. State, 591 So.2d 160 (Fla.1991); Campbell v. State, 571 So.2d 415 (Fla.1990); Rogers v. State, 511 So.2d 526 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988). Moreover, in those cases where a defendant waives the presentation of mitigating evidence, defense counsel must comply with the procedure set out in Koon v. Dugger, 619 So.2d 246 (Fla.1993):

[C]ounsel must inform the court on the record of the defendant's decision. Counsel must indicate whether, based on his investigation, he reasonably believes there to be mitigating evidence that could be presented and what that evidence would be. The court should then require the defendant to confirm on the record that his counsel has discussed these matters with him, and despite counsel's recommendation, he wishes to waive presentation of penalty phase evidence.

Id. at 250; Durocher v. State, 604 So.2d 810, 812 n. 3 (Fla.1992), cert. denied, 507 U.S. 1010, 113 S.Ct. 1660, 123 L.Ed.2d 279 (1993). In the end, the trial judge must carefully analyze all the possible statutory and nonstatutory mitigating factors against the established aggravators to ensure that death is appropriate. Pettit v. State, 591 So.2d 618, 620 (Fla.), cert. denied, 506 U.S. 836, 113 S.Ct. 110, 121 L.Ed.2d 68 (1992); Hamblen v. State, 527 So.2d 800, 804 (Fla.1988). The judge must not "merely rubber-stamp the state's position." Hamblen, 527 So.2d at 804.

In Farr v. State, 621 So.2d 1368 (Fla.1993), we extended this duty to consider mitigation to cases where the defendant argues in favor of the death penalty, as well as where the defendant asks the court not to consider mitigating evidence:

Farr argues that the trial court was required to consider any evidence of mitigation in the record, including the psychiatric evaluation and presentence investigation. Our law is plain that such a requirement in fact exists. We repeatedly have stated that mitigating evidence must be considered and weighed when contained anywhere in the record, to the extent that it is believable and uncontroverted. E.g., Santos v. State, 591 So.2d 160 (Fla.1991); Campbell v. State, 571 So.2d 415 (Fla.1990); Rogers v. State, 511 So.2d 526 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988). That requirement applies with no less force when a defendant argues in favor of the death penalty, and even if the defendant asks the court not to consider mitigating evidence.

Id. at 1369. ² In the instant case, appellant concedes compliance with the Koon procedure, but challenges the court's compliance with Farr. ³

During the plea proceedings here, the following colloquy took place:

MR. IRWIN [DEFENSE COUNSEL]: Judge, we have some Florida Supreme Court case [Koon ] which we'll present to the court which basically says ... we can waive a jury, and we are basically required to proffer to the court, which we intend to do through Dr. Berland what mitigators, statutory or non-statutory, we would be presenting....

THE COURT: And then if he waives that, then I am to ignore that?

THE DEFENDANT: Right.

THE COURT: I've got to forget that.

MR. ASHTON [PROSECUTOR]: I think we may have a legal issue here. My reading of the case is that simply the attorneys proffer the area. I don't think it was intended that an entire evidentiary hearing by way of proffer be made because the court has to ignore it. But that's something we can work out once the court looks at the case.

(Emphasis added.) The trial judge's sentencing order addresses the mitigating factors in the following fashion:

THIS COURT HEARD THE PROFFER presented by the attorneys for the Defendant of mitigators they would have presented if the Defendant had permitted. The Defendant confirmed this desire on the record repeatedly. Their statutory and nonstatutory mitigators would have been that the defendant was in an extreme emotional state at the time of the offense, that he suffered from cocaine addiction, that he was afraid he'd go to prison, that he'd lost his job, he had a good jail record, he cooperated with the detectives and took them to the crime scene, that he suffered from mental defects according to Dr. Kirkland and Dr. Berland, and that he was remorseful.

Of greatest concern to this Court was Michael Robinson's competency and history of mental health. The Defendant did allow the reports of Doctors Kirkland and Berland into evidence for consideration. Although he has had some head injuries and possible genetic mental illness, nothing about the Defendant today or the date of the murder or the date of the plea indicates he is not competent to participate in these court proceedings or that he was not totally aware of what he was doing at the time of the offense or the ramifications of those actions. He is well above average intelligence.

As to his other mitigators, there is evidence that the Defendant was afraid he'd go to prison, but that is not something that rises to a mitigator in this case. He did cooperate with the detectives but only after his first statement proved untrue. There is some evidence he had a cocaine problem since the state's evidence is that he traded the victim's property for cocaine. There is no evidence at all that the other proffered mitigators exist; and, as requested by the Defendant, the Court has not considered the mitigators.

THE COURT HAS VERY CAREFULLY considered and weighed the aggravating circumstances and satisfied itself that any potential mitigating circumstances proffered would not have affected the life or death decision in this case, being ever mindful that human life is at stake in the balance. The court finds that the aggravating circumstances present in this case outweigh any potential mitigating circumstances.

(Emphasis added). It is apparent from the colloquy between the court and counsel set out above, and the confusing statements in the sentencing order, that the trial court and the parties, as in Farr, misperceived the court's obligation in considering mitigating evidence.

In addition to the statements of the prosecutor and the trial court at sentencing indicating that Farr was not followed, we find numerous problems with the trial court's discussion of the mitigating factors in the sentencing order. First, the trial court's open admission that it "has not considered the mitigators" violates our pronouncement in Farr. However, in the next sentence the court inconsistently states that it has "carefully considered and weighed the aggravators and satisfied itself that any potential mitigating circumstances proffered would not have affected the life or death decision in this case."

...