Ross v. State
| Decision Date | 15 August 1985 |
| Docket Number | No. 63767,63767 |
| Citation | 10 Fla. L. Weekly 405,474 So.2d 1170 |
| Parties | 10 Fla. L. Weekly 405 Wilton Amos ROSS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Judith J. Dougherty, Tallahassee, for appellant.
Jim Smith, Atty. Gen., and Richard A. Patterson and Gregory G. Costas, Asst. Attys. Gen., Tallahassee, for appellee.
Wilton Amos Ross appeals his conviction of first-degree murder and sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons expressed, we affirm the conviction of first-degree premeditated murder, but find the sentence should be reduced to life imprisonment without eligibility for parole for twenty-five years. We vacate the sentence of death.
The appellant was convicted of the first-degree murder of his wife, whose body was discovered on February 16, 1982, on the shore of Lake Talquin in Leon County. An autopsy revealed Gladys Ross had suffered multiple scalp injuries inflicted by a blunt instrument, one of which resulted in death by embolism. The victim's face was extensively bruised, scratched, and lacerated. According to medical testimony, the bruises occurred before death and were probably caused by a fist or foot. Injuries on the victim's hands and arms indicated she had fought her attacker. It was not possible to tell at what point during the attack the fatal injury occurred.
A witness who lived near the Rosses' houseboat testified that sometime between 11 p.m. and midnight on February 15, she heard the victim say: She then heard a noise which sounded like a bump or a slamming door, after which she heard no more voices.
Expert testimony indicated that blood of the same type as the appellant's was found underneath the victim's fingernails. A fingerprint identified as belonging to the appellant and made with human blood was found on the metal support post outside the Rosses' houseboat, which was docked at Williams Landing on Lake Talquin. A photograph taken of the appellant on February 17 showed some scratch marks on the side of his nose and underneath his ear. Testimony indicated his hand was cut and bruised.
Testifying in his own behalf, the appellant denied killing his wife. He stated that on the evening of February 15, his wife had dropped him at the river to fish and was to meet him at Coe's Landing between 9:00 and 10:00 p.m. When he arrived in his boat at the landing, his wife was not there. The appellant testified that, after a futile attempt to contact her, he bought a six-pack of beer, drank two beers, and waited until about 1:00 a.m. at a Coe's Landing trailer belonging to a friend. He then left in his boat for Williams Landing, which was approximately two miles away. On the way to the houseboat, he had motor problems and had to paddle part of the way home. He stated that when he arrived at about 3:00 a.m., his wife was not there. The owner of the trailer contradicted the appellant's testimony, stating that the appellant left Coe's Landing immediately after purchasing the beer.
The appellant also testified that he had cut his finger taping a broken window and that the fingerprint found on the support pole was probably his, that he had injured his hand in a boat-trailer accident, and that his face was probably scratched while setting out fish hooks.
The appellant's former cellmate, Dennis Harwood, testified that the appellant confessed to him that he had killed the victim. According to Harwood's testimony, the appellant told him that he had been drinking and, upon his arrival at the houseboat, had argued with his wife; that, in anger, the appellant hit the victim once with a hammer, believed she was dead, and then decided to make it look as though someone else had killed her; that he continued to hit her, had sexual intercourse with her so that it would appear she had been raped, and carried her in his boat to a river bank, where he left her.
The appellant objected to the state's introduction of the testimony of another former cellmate, Edward Thornton, whose name did not appear on the state's list of witnesses provided to the appellant during discovery. The court conducted a Richardson hearing, during which the prosecutor claimed the omission was inadvertent, that Thornton's name had been listed when the trial was formerly scheduled, and that Thornton had been mentioned in the depositions of Harwood and another of the appellant's former cellmates. The court continued the case to allow appellant's counsel to depose Thornton and then determined that the appellant was not prejudiced by the failure to list Thornton as a witness. The extent of Thornton's testimony was that he heard the appellant say to another inmate, "I'll kill you just like I did my wife," but noted that the statement may have been a joke.
The jury returned a verdict of guilty of first-degree murder. During the penalty phase, testimony elicited from the appellant's relatives indicated that the appellant is an alcoholic and becomes intoxicated easily. In accordance with the majority recommendation of the jury, the trial judge sentenced the appellant to death, finding one aggravating and no mitigating circumstances. In the sentencing order, the trial judge found the murder was heinous, atrocious, and cruel, but noted the evidence indicated the murder was not carried out in a cold and calculated manner.
Appellant raises seven issues in this appeal. These issues concern (1) the trial judge's refusal to dismiss for cause a prospective juror; (2) the admissibility of the unlisted witness's testimony; (3) the sufficiency of the evidence to support the verdict of guilt; (4) the sufficiency of the evidence to support the conviction of first-degree murder; (5) the trial judge's finding that the homicide was especially heinous, atrocious, and cruel; (6) the trial judge's refusal to instruct the jury on the mitigating circumstances of substantial impairment of appellant's capacity to appreciate the criminality of his conduct and the influence of extreme mental or emotional disturbance with respect to the appellant's alcoholism and intoxication at the time of the offense; and (7) the constitutionality of Florida's capital felony sentencing law.
With regard to the first issue, the appellant contends that the trial court committed reversible error by "refusing to dismiss for cause a juror who was a relative of the prosecutor." The record reflects that during the voir dire examination, in response to the trial judge's inquiry as to whether any of the prospective jurors knew the attorneys, a woman commented that she believed she had seen one of the prosecutors at a family reunion and stated, "I'm not sure, but he may be a distant relative of mine." After the trial judge denied appellant's counsel's motion to challenge the prospective juror for cause, counsel used a peremptory challenge to strike her. Appellant's peremptory challenges were subsequently exhausted, and the appellant contends that he was forced to accept a juror whom he believed to be unacceptable.
Section 913.03(9), Florida Statutes (1983), states that a juror may be challenged for cause on the ground that "[t]he juror is related by blood or marriage within the third degree to ... the attorneys of either party." Other than the juror's abstract statements that the prosecutor looked familiar and "might be a distant relative," appellant has offered no evidence and we can find nothing in the record to indicate that the juror was subject to dismissal for cause under section 913.03(9). The competency of a challenged juror is to be determined by the trial court in its discretion, and the court's decision will not be disturbed unless manifest error is shown. Christopher v. State, 407 So.2d 198 (Fla.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1761, 72 L.Ed.2d 169 (1982); Singer v. State, 109 So.2d 7 (Fla.1959). On this record, it is clear there was no manifest error committed by the trial judge in his refusal to dismiss the challenged juror for cause.
In his second point, appellant asserts that the trial judge erred in admitting the cellmate Thornton's testimony because his name had not been included in the witness list provided to the defense by the state in accordance with rule 3.220, Florida Rules of Criminal Procedure. A violation of a rule of criminal procedure by the state does not automatically entitle a defendant to reversal absent a showing that the noncompliance resulted in prejudice to the defendant. See, e.g., Cooper v. State, 377 So.2d 1153 (Fla.1979); Lucas v. State, 376 So.2d 1149 (Fla.1979); Richardson v. State, 246 So.2d 771 (Fla.1971). Under the Richardson rule, we have required trial courts to hold a hearing to scrutinize...
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