Ross v. State, 52929

• Decision Date: 12 June 1980
• Docket Number: No. 52929,52929
• Citation: 386 So.2d 1191
• Parties: Frank Anthony ROSS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1191

386 So.2d 1191

Frank Anthony ROSS, Appellant, v. STATE of Florida, Appellee.

No. 52929.

Supreme Court of Florida.

June 12, 1980.

Rehearing Denied Sept. 12, 1980.

Jack O. Johnson, Public Defender, and Douglas A. Lockwood, Asst. Public Defender, Bartow, and W. C. McLain, Sp. Asst. Public Defender, Fort Myers, for appellant.

Jim Smith, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.

ALDERMAN, Justice.

Frank Anthony Ross was adjudged guilty of murder in the first degree and was sentenced to death. At the time he committed the offense, he lacked fifteen days being sixteen years of age. His conviction and sentence are before this Court on direct appeal pursuant to article V, section 3(b)(1), Florida Constitution. Ross also appeals his conviction of robbery.

He raises several points on appeal relating to his convictions which include whether the trial court erred in ruling that his confession was freely and voluntarily given; whether certain remarks made by the judge during instructions to the jury constitute reversible error; whether the trial court erred in denying a request by Ross for additional inquisition into his sanity; and whether the court erred in allowing the prosecutor on cross-examination to ask the psychologist, whom the defense had called as a witness, if Ross knew right from wrong. We find none of these arguments to be meritorious and therefore affirm the convictions. Several issues are also raised which relate to the sentencing phase of this case which are: whether the court erred in considering that the crime was committed during the course of a robbery and that it was committed for pecuniary gain as two separate aggravating circumstances, whether the court erred in finding that murder was committed to avoid lawful arrest, whether the court erred in not finding as a mitigating circumstance that Ross had no significant prior criminal activity, and whether the court improperly gave undue weight to the jury's recommendation that the death penalty be imposed. We find that the trial court did give undue weight to the jury's recommendation, and, for this reason, we remand the cause for resentencing by the trial judge. We also advise the trial court not to "double up" by considering as two separate aggravating circumstances that the crime was committed during the course of a robbery and that it was committed for pecuniary gain.

Ross, along with a co-defendant, was charged with first-degree murder and robbery of a sixty-four-year-old woman. The victim had been stomped to death. Ross had gained entrance into the victim's home under the pretext of wanting a drink of water. Prior to the time the victim was attacked, Ross had a knife concealed in his hand behind his back and told the victim, "I kill you." After attacking the victim and ransacking the house for valuables, Ross again stomped the disabled woman and then pulled the telephone from the wall. The pathologist who performed the autopsy stated that the victim had sustained a severe beating to her head and face. He described her body as having several bruises and abrasions on the face, multiple fractures to the skull, facial bones and jaw, severe injury to the brain, and large areas of hemorrhaging between the scalp and skull. Death resulted from cerebral injuries. It is undisputed that Ross did the actual stomping. During interviews with the police at which his parents were present, Ross confessed to the murder and robbery. At trial, Ross testified in his own behalf and demonstrated how he had stomped the victim.

Prior to trial, the court, upon defense motion, ordered that Ross be examined by Dr. Jordan, a psychologist whose credentials are not questioned, to determine whether Ross was able to assist his counsel in the preparation of a defense of the crime for which he was charged. Dr. Jordan determined that Ross was competent and capable of assisting counsel in his defense. Ross subsequently requested further inquisition into his sanity and asked the court to appoint a physician or psychiatrist to conduct this inquiry. After hearing, the trial court denied this request. He also filed a motion to suppress his confession on the basis that he was incapable of making a voluntary waiver of his Miranda rights because of his age and low mental intelligence. After hearing at which Dr. Jordan testified that Ross had the ability to comprehend his Miranda rights, the trial court denied this motion.

Although conceding that he was repeatedly advised of his Miranda rights, that his parents were present during his questioning by police officers, and that the officers used no force, promises, or other coercion to obtain his statement, Ross contends that his confession was not freely and voluntarily given since his ability to understand his rights when read to him was questionable in light of his retarded intellectual capacity. He contends that his youth and immaturity, the stressful circumstances of the questioning, and the alleged ineffectiveness of parental advice vitiate the voluntariness of his confession. His overall intellectual functioning with an IQ of sixty-six was rated by Dr. Jordan as mildly retarded. His performance IQ was rated as eighty, which is the dull normal range, while his verbal IQ was fifty-five.

The State responds that Ross was advised of his rights seven or eight times from the time he was first taken into custody, that each time he stated he understood his rights, and that he indicated he did not need a lawyer and knew he did not have to say anything. The State points out that Dr. Jordan testified that Ross had the ability to understand Miranda warnings and submits that it met its burden of demonstrating by a preponderance of the evidence that Ross's confession was voluntary. The State further argues that Ross confirmed his confession when he took the stand and testified on his own behalf.

From our review of the record, we conclude that the State met its burden of demonstrating by a preponderance of the evidence that Ross's confession was freely and voluntarily given and that Ross knowingly and intelligently waived his right to remain silent and his right to counsel. Wilson v. State, 304 So.2d 119 (Fla.1974).

Mental weakness alone will not automatically render a confession involuntary and inadmissible. Rather, this is only a factor to be considered in determining the voluntariness of a confession. In Brown v. State, 245 So.2d 68 (Fla.1971), we stated:

It is well settled that a person is not necessarily incompetent as a witness because he is mentally weak, and a confession is not rendered inadmissible by a low emotional and mental stability on the part of the accused if he is nevertheless capable of understanding the meaning and effect of his confession.

245 So.2d at 72. Furthermore, this Court has recognized that youthful age, although a factor to be considered in determining the voluntariness of a statement, will not render inadmissible a confession which is shown to have been made voluntarily. State v. Francois, 197 So.2d 492 (Fla.1967).

Although Dr. Jordan determined that Ross was mildly retarded, he testified that if Ross were advised that he had the right to remain silent he would have the intellectual comprehension to understand that he had a right not to reveal any information regarding the alleged crime. Dr. Jordan also testified that if Ross were advised of his right to counsel he was able to comprehend that an attorney meant somebody to help him with the difficulty he was in. Jordan expressed the opinion that Ross would be capable of understanding his Miranda rights if they were merely read to him. He stated that, while intellectually limited, Ross evidenced an adequate grasp of basic facts and ways to deal with daily life and could distinguish between appropriate and inappropriate social behavior.

The trial court expressly determined that Ross's statement was freely and voluntarily given, and this finding is supported by the testimony presented at the suppression hearing. Any contrary inferences which might be drawn from the evidence have been resolved by the trial court in favor of the State, and we will not substitute our judgment for that of the trial court.

We note that Ross confirmed his confession when he took the stand. He testified that he stomped the victim in the head several times and demonstrated to the jury how he had stomped her.

Ross also contends that the trial court, during the course of jury instructions, made improper comments expressing a belief in Ross's guilt and, during the sentencing phase, improperly commented on the evidence. No objection to any of these allegedly improper comments was made by defense counsel.

In the absence of a contemporaneous objection, we will not reverse a conviction because an improper comment is made unless the comment is so prejudicial as to amount to "fundamental error." Cf. Clark v. State, 363 So.2d 331 (Fla.1978). The trial court's comments, alleged by Ross to be improper, do not constitute fundamental error. To the contrary, when viewed in the entire context in which the comments were made, these comments neither prejudiced Ross nor deprived him of a fair trial. Cf. Provence v. State, 337 So.2d 783 (Fla.1976).

Ross next argues that the trial court abused its discretion in not granting his request for appointment of a psychiatrist or physician to further evaluate his mental condition, in addition to the psychologist, Dr. Jordan, who had already been appointed to examine Ross and who had determined him competent to stand trial. He acknowledges that Florida decisions have held that it is not an abuse of discretion for the trial court to refuse to order further psychiatric examinations after the accused has been determined to be competent. See Cooper v. State, 336 So.2d 1133 (Fla.1976); Brown v. State, supra ; and Olsen v. State, 338 So.2d 225 (Fla. 3d DCA 1976). He asserts, however, that these decisions are different...