Rutherford v. State, 69825

Citation14 Fla. L. Weekly 300,545 So.2d 853
Decision Date15 June 1989
Docket NumberNo. 69825,69825
Parties14 Fla. L. Weekly 300 Arthur D. RUTHERFORD, Appellant, v. STATE of Florida, Appellee.
CourtUnited States State Supreme Court of Florida

Michael E. Allen, Public Defender, and William C. McLain, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Helen P. Nelson and Gary L. Printy, Asst. Attys. Gen., Tallahassee, for appellee.

PER CURIAM.

Arthur D. Rutherford appeals from a death sentence imposed after a jury found him guilty of first-degree murder. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Rutherford was indicted in the 1985 murder and armed robbery of sixty-three-year-old Stella Salamon, whose body was found in the bathtub of her home in Milton, Florida. In January 1986, a jury in Santa Rosa County found him guilty as charged and recommended a death sentence by an eight-to-four vote. However, the trial court declared a mistrial due to a discovery violation by the state. Upon retrial in December 1986 in Okaloosa County, the prosecution introduced the following pertinent evidence.

The medical examiner testified that Mrs. Salamon's left arm was broken at the elbow and the upper part of the arm was bruised, that there were bruises on her face and cuts on her lip, and that there were three severe wounds on her head. Two of these injuries were consistent with having been made by a blunt instrument or by her head being struck against a flat surface; another was a puncture wound; and all were associated with skull fracture. Cause of death was by drowning or asphyxiation, evidence of both being present.

Two women testified that Rutherford had asked them to help him cash a $2,000 check, on which he had forged Mrs. Salamon's signature. Two other witnesses testified that before Mrs. Salamon's death Rutherford had told them that he planned to get some money from a woman by forcing her to write him a check. He said he would then kill her by hitting her in the head and drowning her in the bathtub to make her death look accidental. One witness quoted him as saying, "I can't do the time, but I'm damn sure gonna do the crime." Another witness testified that on the day of the murder Rutherford indicated he might kill Mrs. Salamon, and yet another witness said Rutherford told him later that day that he had killed "the old lady" by hitting her in the head with a hammer, and then had put her in the bathtub. Law enforcement officers testified that Rutherford's fingerprints and palm prints were found in the bathroom of Mrs. Salamon's home.

The jury recommended death by a seven-to-five vote, and the judge imposed the death penalty. He found four aggravating factors: the killing was especially heinous, atrocious, and cruel; the killing was cold, calculated, and premeditated; it was committed during the course of a robbery; and it was committed for pecuniary gain. Finding that the latter two factors should be considered only as one, he concluded there were three aggravating circumstances. In mitigation, he found only that Rutherford had no significant history of criminal activity.

Rutherford raises only one issue regarding the guilt phase. He claims the second trial violated his constitutional rights by placing him in double jeopardy. In the first trial, the state elicited testimony from Sherman Pittman and Kenneth Cook to the effect that Rutherford had told them in advance of the killing that he planned to murder an elderly woman for her money. Despite a demand from the defense which would have called for advising counsel of these statements, the state had not provided them during discovery. Ultimately, the judge held a Richardson hearing 1 and found that the prosecution had committed a willful discovery violation. This ruling formed the basis for granting the defendant's motion for mistrial. 2

The general rule is that when a mistrial is declared upon the defendant's motion or with his consent or because of a manifest, urgent, or absolute necessity, jeopardy does not attach and the defendant may be retried. McLendon v. State, 74 So.2d 656 (Fla.1954); State ex rel. Larkins v. Lewis, 54 So.2d 199 (Fla.1951). An exception occurs when the prosecution goads the defense into moving for a mistrial and gains an advantage from the retrial. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Rutherford contends that the prosecutor's deliberate discovery violation falls into this category. We disagree.

The record of the first trial shows that the prosecutor learned the nature of Pittman's and Cook's testimony only the day before they testified, though they had been on the state's witness list from the beginning of the discovery process. He argued that defense counsel's failure to depose the witnesses relieved the state of its obligation to disclose the nature of the statements they had made to police. While the prosecutor misapprehended his objection, there is no indication that his motive was to obtain a mistrial. The objective of seeking to cause the other party to move for a mistrial is to "save" a losing case. Our review of the record in the first case convinces us the prosecutor's motive was to introduce evidence that tended to convict Rutherford, not to create error that would force a new trial. As there was no goading the defense into moving for a mistrial, the Oregon v. Kennedy exception does not apply and it was not error to try Rutherford a second time.

Rutherford next argues that the sentencing order demonstrates that the trial court improperly considered Rutherford's lack of remorse in making the finding of heinous, atrocious, and cruel. The order stated:

(h) The Court finds that this crime was especially heinous, atrocious and cruel. The evidence in this case showed that the victim had a dislocated arm, leading the Court to the conclusion that the defendant dislocated the victim's arm in the course of the robbery. Additionally, the victim had a number of gashes on her head where she had obviously had her head struck by an object or had her head bashed against an object causing severe injuries to the victim. Additionally, the victim was placed in the bathtub where she was submerged under water. Her death was attributed to asphyxiation, but the pathologist could not rule out the effects of the blows as a cause of death.

While the Court cannot use the attitude of the defendant and his lack of remorse as an aggravating circumstance, the Court does find that the defendant's lack of remorse adds weight to the Court's determination that the crime was especially heinous, atrocious and cruel. Sireci v. State, 399 So 2d 964 (Fla.1981).

The case of Sireci v. State, 399 So.2d 964 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982), was subsequently overruled in Pope v. State, 441 So.2d 1073 (Fla.1983). The sentencing order makes it clear, however, that the judge knew that a defendant's lack of remorse could not be considered as an aggravating circumstance. We view the comment as a gratuitous statement which...

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