Songer v. State, 72043

• Citation: 14 Fla. L. Weekly 262,544 So.2d 1010
• Decision Date: 25 May 1989
• Docket Number: No. 72043,72043
• Parties: 14 Fla. L. Weekly 262 Carl Ray SONGER, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 1010

544 So.2d 1010

14 Fla. L. Weekly 262

Carl Ray SONGER, Appellant, v. STATE of Florida, Appellee.

No. 72043.

Supreme Court of Florida.

May 25, 1989.

Steven M. Goldstein, Florida State University, College of Law, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Peggy A. Quince and Joseph R. Bryant, Asst. Attys. Gen., Tampa, for appellee.

PER CURIAM.

Carl Ray Songer appeals from a death sentence imposed upon resentencing. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

The procedural history of Songer's case is lengthy, but for present purposes only a short synopsis is necessary. In 1973 Songer walked away from a prison work-release program in Oklahoma. Several days later some hunters saw a Florida highway patrolman approach a car in which Songer and a companion were sleeping. The trooper looked into the car and a volley of shots rang out; the officer fell dead. The hunters captured Songer, who ultimately was convicted of first-degree murder and sentenced to death. This Court affirmed, Songer v. State, 322 So.2d 481 (Fla.1975), but the Supreme Court of the United States reversed and remanded for a new sentencing hearing before the judge alone. Songer v. Florida, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977). After the trial judge again imposed the death penalty, we affirmed. Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979). A series of collateral attacks ensued, and eventually the Eleventh Circuit Court of Appeals, sitting en banc, ordered a new sentencing hearing in Songer v. Wainwright, 769 F.2d 1488 (11th Cir.1985).

Upon resentencing Songer was permitted to introduce mitigating evidence not offered before. The jury recommended death, and the trial judge once again imposed the death penalty, despite finding only one valid aggravating circumstance and several in mitigation.

Songer now urges us that his death sentence is invalid because it is disproportionate to others imposed. The aggravating circumstance in this case was that Songer was under a sentence of imprisonment in Oklahoma when the killing was committed. The three statutory mitigating circumstances found to be supported by the record were that the crime was committed while Songer was under the influence of extreme mental or emotional disturbance, that Songer's ability to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, and that his age, twenty-three years old, was a factor.

The court also listed seven factors that were proven by a preponderance of the evidence: Songer's sincere and heartfelt remorse; his chemical dependency on drugs, which caused significant mood swings; his history of adapting well to prison life and using the time for self-improvement; his positive change of character attributes, as manifested in a desire to help others; his emotionally impoverished upbringing; his positive influence on his family despite his incarceration; and his developing strong spiritual and religious standards.

Long ago we stressed that the death penalty was to be reserved for the least mitigated and most aggravated of murders. State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). To secure that goal and to protect against arbitrary imposition of the death penalty, we view each case in light of others to make sure the ultimate punishment is appropriate.

Our customary process of finding similar cases for comparison is not necessary here because of the almost total lack of aggravation and the presence of significant mitigation. We have in the past affirmed death sentences that were supported by only one aggravating factor, (see, e.g., LeDuc v. State, 365 So.2d 149 (Fla.1978), cert. denied, 444 U.S. 885, 100 S.Ct. 175, 62 L.Ed.2d 114 (1979)), but those cases involved either nothing or very little in mitigation. Indeed, this case may represent the least aggravated and most mitigated case to undergo proportionality analysis.

Even the gravity of the one aggravating factor is somewhat diminished by the fact that Songer did not break out of prison but merely walked away from a work-release job. In contrast, several of the mitigating circumstances are particularly compelling. It was unrebutted that Songer's reasoning abilities were substantially impaired by his addiction to hard drugs. It also is apparent that his remorse is genuine. In...