Shue v. State

Decision Date07 December 1978
Docket NumberNo. 51235,51235
CourtFlorida Supreme Court
PartiesWilliam Horace SHUE, Jr., Appellant, v. STATE of Florida, Appellee.

Theodore E. Mack, Asst. Public Defender, Tallahassee, for appellant.

Robert L. Shevin, Atty. Gen. and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

The appellant was tried before a jury and convicted of two counts of sexual battery, committed upon two girls eleven years of age or younger in violation of Section 794.011(2), Florida Statutes. The Court is here reviewing the conviction and the imposition of a sentence of death by electrocution. Our jurisdiction is authorized by Article V, Section 3(b)(1), Florida Constitution.

On Thursday, June 12, 1975, at approximately seven o'clock, P.M., the two victims of the crimes charged in this case, then being eleven and nine years old, were walking along a footpath in a wooded area near their home in Marion County. As they emerged from the woods to proceed towards home along a roadway, they were accosted by a man who ordered them back into the wooded area and raped them both.

Appellant was positively identified at trial by one of the girls as their attacker. Corroboration of this was provided by testimony as to the appellant's identification through photographic, in-person, and voice-identification "lineups."

The young victims led police investigators to the scene of the crime. Expert testimony established that appellant's fingerprint was on a piece of cellophane wrapping paper found there. Also found was a piece of paper packaging material linked by reasonable inference to the cellophane. There was evidence from which the jury could infer that the cellophane and the cardboard came from a package of anesthetic ointment that was in the appellant's possession at the time of the assault. An unopened package of the same product was found in appellant's home.

The appellant had worn a full beard for months, at least, before the crime, and removed it on the day following. The two girls described their attacker as having had such a beard. When shown at trial the appellant's driver's license photograph, in which he was bearded, one of the girls testified that it was a picture of their assailant.

The jury had ample competent evidence upon which to base a verdict of guilty on both counts.

In the sentencing portion of the trial, the court and the jury were presented with testimony as to the appellant's criminal record. It appears that appellant was convicted in North Carolina in 1968 of indecent exposure to some minor females. In Mississippi in 1972 he was convicted of disorderly conduct based on a complaint of "attempted seduction" of a minor female. In Florida in 1970 he was convicted of arson, and testified that his perpetration of the acts involved there arose out of a dispute with a former employer over unpaid wages. After his arrest for the crimes at issue here, he escaped from the Marion County jail, and in 1976 was convicted in Iowa of the crime of rape.

There was also testimony concerning the appellant's upbringing, family background, and social life. His childhood, as it was described, was one of brutality and deprivation. His older sister testified that she was repeatedly abused and sexually assaulted during childhood by their father.

The jury recommended that the appellant be sentenced to life imprisonment. Contrary to the recommendation the judge imposed death as the sentence. He found that two of the aggravating circumstances listed in our capital felony sentencing law, Section 921.141, Florida Statutes, were present: that the appellant had previously been convicted of a felony involving violence or the threat of violence, and that the rapes were especially heinous, atrocious, and cruel. He found further that there were no mitigating circumstances.

The appellant contends that the sentence imposed upon him for these crimes violates the guarantee of the Eighth Amendment to the United States Constitution against cruel and unusual punishment. He argues that the decision of the United States Supreme Court in Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), stands for the proposition that a punishment of death for the crime of rape where there has been no taking of human life is disproportionate to the crime and therefore unconstitutional. The Court held that the death penalty under such circumstances is grossly disproportionate and excessive punishment, but limited its holding to the facts of that case in which the victim was an adult woman. The opinion of the Court placed great emphasis, however, on the recent national trend away from exacting the ultimate punishment for the crime of rape. Today only Florida and Mississippi have statutes in force authorizing the death penalty for rape, and both States limit its application to the case of rape of a child by an adult. *

These recent events evidencing the attitudes of state legislatures and sentencing juries do not wholly determine this controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment. Nevertheless, the legislative rejection of capital punishment for rape strongly confirms our own judgment, which is that death is indeed a disproportionate penalty for the crime of raping an adult woman. Id. at 597, 97 S.Ct. at 2868.

The question of the permissibility of death as the punishment for child rape will, undoubtedly and unfortunately, be presented to this Court again, unless the United States Supreme Court decides it first. We will not decide it now, however, because there are two grounds under our own decisions for vacating appellant's sentence and ordering a sentence of life imprisonment. The facts do not warrant imposition of a sentence of death in the face of the jury's recommendation. And under our decision in Purdy v. State, 343 So.2d 4 (Fla.1977), as will be explained below, upholding the death sentence in this case would be to allow cruel and unusual punishment.

In Huckaby v. State, 343 So.2d 29 (Fla.1977), the appellant had been sentenced to death for rape of a child under the age of eleven. We concluded that the appellant's long history of sexual abuse of his daughters demonstrated the existence of a mental illness which, although not rising to the level of legal insanity, nonetheless showed an impairment of the appellant's capacity to appreciate the criminality of his conduct. This conclusion and our finding in the record of evidence of extreme emotional disturbance constituted factors in mitigation. Even though the jury recommended a sentence of death, we held that these two mitigating circumstances should have been found and considered by the sentencing judge and...

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12 cases
  • Witt v. State
    • United States
    • United States State Supreme Court of Florida
    • 24 Julio 1980
    ...of the findings in aggravation and mitigation; (3) an alleged change in the law relative to sentencing, reflected in Shue v. State, 366 So.2d 387 (Fla. 1978), and in Burch v. State, 343 So.2d 831 (Fla. 1977), concerning definitions for the mitigating circumstances set out in sections 921.14......
  • Johnson v. Dugger
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 21 Agosto 1990
    ...... In his first appeal, we found no constitutional error in the state court proceedings leading to his death sentence and affirmed the district court's denial of his petition for a writ of habeas corpus. Johnson v. ...State, 402 So.2d 377 (Fla.1981); Phippen v. State, 389 So.2d 991 (Fla.1980); Williams v. State, 386 So.2d 538 (Fla.1980); Shue v. State, 366 So.2d 387 (Fla.1978); Buckrem v. State, 355 So.2d 111 (Fla.1978); Chambers v. State, 339 So.2d 204 (Fla.1976); Provence v. State, ......
  • Ford v. Strickland
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 7 Enero 1983
    ...cert. denied, 451 U.S. 916, 101 S.Ct. 1994, 68 L.Ed.2d 308 (1981); Kampff v. State, 371 So.2d 1007, 1010 (Fla.1979); Shue v. State, 366 So.2d 387, 389-90 (Fla.1978); Huckaby v. State, 343 So.2d 29, 33-34 (Fla.), cert. denied, 434 U.S. 920, 98 S.Ct. 393, 54 L.Ed.2d 276 (1977); Harvard v. Sta......
  • Mann v. Dugger
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 21 Abril 1988
    ...L.Ed.2d 440 (1982); Neary v. State, 384 So.2d 881, 885-88 (Fla.1980); Malloy v. State, 382 So.2d 1190, 1193 (Fla.1979); Shue v. State, 366 So.2d 387, 390-91 (Fla.1978); McCaskill v. State, 344 So.2d 1276, 1280 (Fla.1977); Thompson v. State, 328 So.2d 1, 5 The attorney general argues that al......
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