Spencer v. State

• Decision Date: 22 September 1994
• Docket Number: No. 80987,80987
• Parties: 19 Fla. L. Weekly S460 Dusty Ray SPENCER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 377

645 So.2d 377

19 Fla. L. Weekly S460

Dusty Ray SPENCER, Appellant, v. STATE of Florida, Appellee.

No. 80987.

Supreme Court of Florida.

Sept. 22, 1994.

Rehearing Denied Dec. 6, 1994.

James B. Gibson, Public Defender, and James R. Wulchak, Chief, Appellate Div., Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., and Dan Haun, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Dusty Ray Spencer, a prisoner under sentence of death, appeals his conviction for first-degree murder and the attendant sentence. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution. We affirm Spencer's conviction for first-degree murder. However, because of error in the sentencing order, we vacate Spencer's sentence of death and remand this case for reconsideration by the judge.

Spencer was charged with the first-degree murder of his wife Karen Spencer, who was also Spencer's partner in a painting business. In early December 1991, Karen asked Spencer to move out of the house. On December 10, 1991, Spencer confronted Karen about money which she had withdrawn from the business account. During this argument, Spencer choked and hit Karen and threatened to kill her. Spencer was arrested after Karen reported the incident to the police. According to Karen's account to a police officer, Spencer called her from jail the next day and stated that he was going to finish what he had started as soon as he got out of jail.

Although Karen asked Spencer to return home during the holidays, she asked him to leave again after Christmas was over. While Spencer was drinking with friends on New Year's Day, he told one friend that he should take Karen out on their boat and throw her overboard. Two days later he told that friend that Karen refused to go out on the boat anymore.

On January 4, 1992, Spencer returned to Karen's home and got into a fight with Karen in her bedroom. Karen's teenage son Timothy Johnson was awakened by this fight. When Timothy entered his mother's bedroom, he saw Spencer on top of Karen, hitting her. When Timothy tried to intervene, Spencer struck him in the head with a clothes iron. Spencer followed Timothy back to his bedroom and struck him several more times with the iron. Spencer told Timothy, "You're next; I don't want any witnesses." Karen fled the house and sought help from a neighbor. When Timothy attempted to summon help on the telephone, Spencer yanked the phone cord from the wall. Spencer then fled the house and left town. Timothy and Karen were taken to the hospital and treated for their injuries. At the hospital, Karen told the treating physician that Spencer had hit her with an iron. At trial, the physician stated that Karen's wounds were consistent with having been inflicted with an iron.

Spencer returned to Karen's house on the morning of January 18, 1992. Timothy was again awakened by a commotion, grabbed a rifle from his mother's bedroom, and found Karen and Spencer in the backyard. Timothy testified that Spencer was hitting Karen in the head with a brick, and that he observed a lot of blood on Karen's face. Timothy tried to shoot Spencer, but the rifle misfired and he instead struck Spencer in the head with the butt of the rifle, which was shattered by this impact. Spencer pulled up Karen's nightgown and told her to "show your boy your pussy." He then slapped Karen's head into the concrete wall of the house. Karen told Spencer to "stop." When Timothy attempted to carry his mother away Spencer threatened him with a knife. Timothy ran to a neighbor's house to summon aid.

When the police arrived at the scene, they found Karen dead. She had been stabbed four or five times in the chest, cut on the face and arms, and had suffered blunt force trauma to the back of the head. The medical examiner testified that cuts on Karen's right hand and arm were defensive wounds and that death was caused by blood loss from two penetrating stab wounds to the heart and lung. The medical examiner also testified that all of the wounds occurred while Karen was alive and that she probably lived for ten to fifteen minutes after receiving the stab wounds in the chest. According to the medical examiner, Karen suffered three impacts to the back of the head that were consistent with her head being hit against a concrete wall. Because this impact would have caused Karen to lose consciousness, the medical examiner testified that the defensive wounds had to have occurred before the head trauma.

Spencer was charged with four counts: first-degree premeditated murder and aggravated assault for the January 18 incident and attempted first-degree murder and aggravated battery for the January 4 incident. Spencer moved to sever the counts because they involved separate incidents. The court denied the motion.

The jury convicted Spencer of first-degree murder and recommended a death sentence by a seven-to-five vote. The trial judge followed the jury's recommendation and imposed death. The judge found three aggravating circumstances: previous conviction of another felony involving violence ¹ based upon the contemporaneous convictions; that the murder was especially heinous, atrocious, or cruel (HAC); ² and that the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (CCP). ³ The judge found no statutory mitigating circumstances, and one nonstatutory mitigating circumstance (defendant's history and background).

Spencer was also convicted on the counts of aggravated assault and aggravated battery as charged in the indictment and the lesser-included offense of attempted second-degree murder. He was sentenced to five years for aggravated assault, fifteen years for attempted second-degree murder, and fifteen years for aggravated battery, with the sentences to run consecutively for a total of 35 years.

Spencer raises seven issues on appeal: 1) denial of his motion for judgment of acquittal based upon a lack of sufficient evidence to prove premeditation; 2) denial of his motion to sever the charges relating to the January 4 incident from those relating to the January 18 incident; 3) denial of his objections to the standard jury instructions on premeditation and reasonable doubt; 4) denial of his motion for a mistrial following the prosecutor's argument regarding matters not in evidence; 5) admission of hearsay evidence during the penalty phase; 6) death sentence improper because the trial court improperly found CCP and HAC aggravating circumstances, excluded the statutory mitigating circumstances of committed while the defendant was under the influence of extreme mental or emotional disturbance ⁴ and substantial impairment of the defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law, ⁵ and failed to find that the mitigating circumstances outweigh the aggravating circumstances; and 7) the death penalty statute is unconstitutional. Four of these issues involve the guilt phase of the proceedings; the remaining three are directed to the penalty phase.

Guilt Phase

As his first issue, Spencer claims that the trial court erred in denying his motion for judgment of acquittal because the evidence was insufficient to prove premeditation. He contends that the conviction cannot be sustained because the State failed to prove the homicide was premeditated beyond a reasonable doubt. He argues that the evidence fails to exclude a "heat of passion" killing and thus, at most, only supports a second-degree murder conviction.

Premeditation is a fully formed conscious purpose to kill that may be formed in a moment and need only exist for such time as will allow the accused to be conscious of the nature of the act about to be committed and the probable result of that act. Asay v. State, 580 So.2d 610, 612 (Fla.), cert. denied, 502 U.S. 895, 112 S.Ct. 265, 116 L.Ed.2d 218 (1991); Wilson v. State, 493 So.2d 1019, 1021 (Fla.1986). Whether a premeditated design to kill was formed prior to a killing is a question of fact for the jury that may be established by circumstantial evidence. 580 So.2d at 612; 493 So.2d at 1021. Where there is substantial, competent evidence to support the jury verdict, the verdict will not be reversed on appeal. Cochran v. State, 547 So.2d 928, 930 (Fla.1989). Moreover, the circumstantial evidence rule does not require the jury to believe the defendant's version of the facts when the State has produced conflicting evidence. Id.

Premeditation may be established by circumstantial evidence, including the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed, and the nature and manner of the wounds inflicted. Holton v. State, 573 So.2d 284, 289 (Fla.1990), cert. denied, 500 U.S. 960, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991).

Our review of the record in this case reveals that there was sufficient evidence from which the jury could have inferred premeditation and rejected Spencer's contention that this was a "heat of passion" killing. The nature and extent of Karen's injuries and the manner in which the homicide was committed support the jury's conclusion that Spencer formed a premeditated design to kill Karen. Karen died from multiple stab wounds to her chest. She also received four wounds to her face and defensive wounds on her hand and arm. Timothy Johnson testified that his mother asked Spencer to stop his attack, but he persisted by smashing her head against the concrete wall of the house three times. The evidence also shows that Spencer parked his car away from Karen's house on the day of the killing, wore plastic gloves during the attack, and carried a steak knife in his pocket. Spencer's previous attacks on Karen and the threats that he made to both Karen and her son are also proper evidence of premeditation. King...