Squires v. State, 61931

• Decision Date: 15 March 1984
• Docket Number: No. 61931,61931
• Citation: 450 So.2d 208
• Parties: William M. SQUIRES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 208

450 So.2d 208

William M. SQUIRES, Appellant, v. STATE of Florida, Appellee.

No. 61931.

Supreme Court of Florida.

March 15, 1984.

Rehearing Denied June 13, 1984.

Jerry Hill, Public Defender and Robert F. Moeller, Asst. Public Defender, Tenth Judicial Circuit, Bartow, for appellant.

Jim Smith, Atty. Gen. and Ann G. Paschall, Asst. Atty. Gen., Tampa, for appellee.

ADKINS, Justice.

William M. Squires was convicted of the first-degree murder of Jesse Albritton. The trial judge imposed the death penalty in accordance with the jury's advisory sentence recommendation. Squires appeals from the conviction and the sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. Having reviewed the record and considered the issues presented on appeal, we find no reversible error and affirm Squires' conviction and sentence.

Evidence at trial described the following events: On the evening of September 2, 1980, Jesse Albritton was abducted from the service station where he worked. Incident to the kidnapping, the service station was robbed of an undetermined amount of money and cigarettes. The next day Albritton's body was discovered in a wooded area in Hillsborough County. He had been shot five times at close range--once in the shoulder with a shotgun and four times in the head with a pistol.

At the time of Albritton's murder, Squires was an escapee from the Florida State Prison System, having been sentenced to three consecutive life sentences. Tampa police apprehended Squires on December 24, 1980, after receiving information of the fugitive's whereabouts from Mrs. Charlotte Chambliss. On April 29, 1981, Squires was indicted and charged with the premeditated murder, robbery, and kidnapping of Albritton.

At trial the state called Rex Seimer, a correctional officer at Lake Butler, and Robert Fain, a prison inmate. Both men testified that Squires admitted to them to killing Albritton. Detective Gerald Helms also testified that Squires had admitted to robbing the victim and to being present when Albritton was shot. However, Squires told Helms that he personally had not pulled the trigger. The state then offered the testimony of Terry and Charlotte Chambliss, both of whom confirmed that Squires was in Tampa on September 2, 1980, the date of Albritton's abduction and murder. Mr. Chambliss told the court of seeing Squires with several pistols and a shotgun. He also observed several cartons of cigarettes in the back of the defendant's automobile. Finally, Mr. Chambliss recounted a conversation he had with Squires during which Squires stated that he had run into trouble during a robbery and had to "dust one." Squires' defense was basically that of alibi, attempting through testimony and credit card records to place himself somewhere else when the crime was committed. The jury found Squires guilty as charged of premeditated murder, robbery, and kidnapping, then recommended that the death penalty be imposed.

On appeal Squires raises seven points which will be addressed in order of their presentation. In the first point on appeal Squires contends that the trial court violated the Williams Rule by permitting the state to introduce testimony that he had, on several occasions, shot at persons other than the victim. Squires argues that this testimony introduced prejudicial evidence of his alleged criminal activity unrelated to the charges brought at trial and served no purpose but to illustrate his bad character. Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959); § 90.404(2)(a), Fla.Stat. (1981).

We cannot agree. The record shows that appellant put forward testimony of Officer Kinnard who stated that Squires had personally spared his (Kinnard's) life during an unrelated kidnapping episode. Squires then took the stand and made additional self-serving statements regarding his aversion to killing. Only after the accused entered these statements did the state produce the challenged testimony linking Squires with other shootings. By attempting to demonstrate his non-violent character, Squires had placed this alleged trait in issue. The trial court properly allowed the state to rebut these assertions of non-violent character by showing that Squires had fired deadly weapons at persons other than the victim. Lewis v. State, 377 So.2d 640 (Fla.1979); § 90.404(1)(a), Fla.Stat. (1981).

In his second point on appeal Squires argues that the trial court committed fundamental error by failing to instruct the jury on excusable and justifiable homicide. This argument is also without merit. At trial appellant's counsel and the prosecutor entered into a written stipulation setting forth the appropriate jury instructions. The agreed upon instructions contained the following reference to the terms "excusable" and "justifiable" deadly force:

In this case, William M. Squires is accused of first degree murder.

Murder in the first degree includes the lesser crimes of murder in the second degree, murder in the third degree and manslaughter, all of which are unlawful.

A killing that is excusable or was committed by the use of justifiable deadly force is lawful.

Squires never objected to these instructions. In the absence of fundamental error, failure to object to the instructions as given precludes review of those instructions on appeal. Demps v. State, 395 So.2d 501 (Fla.), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981). Where defendant is convicted of first-degree murder an error or omission in an instruction on the lesser included offense of manslaughter is not fundamental error. See Ray v. State, 403 So.2d 956 (Fla.1981); Dobbert v. State, 328 So.2d 433 (Fla.1976), aff'd, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). Since the instructions were not objected to at trial and no fundamental errors have been detected in the record, Squires is precluded from a review of those instructions on appeal.

The balance of Squires' challenges focus upon the penalty phase of the trial. In his third point on appeal, Squires submits that the trial court found in mitigation that he was an incidental accomplice in a murder committed by another person and, therefore, the imposition of the death penalty was inappropriate under the rationale of Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (there the Court held that identical treatment of a robber, who killed victims, and an accomplice, who did not kill and did not intend to participate in the murders, for purposes of imposing the death penalty, was impermissible under the eighth amendment). We disagree, for here, unlike Enmund, both the sentencing order and the record indicate that the defendant (Squires) was personally responsible for the murder of Jesse Albritton. The finding from which Squires argues was made in respect to the factor enumerated in section 921.141(6)(d), Florida Statutes (1981), where the trial court stated:

D. THE DEFENDANT WAS AN ACCOMPLICE IN THE CAPITAL FELONY COMMITTED BY ANOTHER PERSON AND HIS PARTICIPATION WAS RELATIVELY MINOR.

FACT:

The evidence in the record by way of defendant's own testimony reveals that the defendant admitted to Detective Gerald Nelms, Detective George Peterson and Al Dayton that he had assisted in the robbery and kidnapping of the victim, Jesse Albritton, but that he had not personally shot the victim. Defendant admitted to Detective Nelms that he was present when the victim was killed but that he did not actually pull the trigger.

CONCLUSION:

Evidence based solely on the Defendant's own testimony supports the contention that the defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor. (emphasis added).

This finding was written in compliance with Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), which requires the trial court to consider all relevant mitigating evidence and weigh it against evidence of aggravating circumstances before imposing the death penalty. In the aforementioned finding, the trial court reports only that it has considered all possible evidence in mitigation; namely, appellant's self-serving statements disavowing personal involvement in the murder. Contrary to Squires' contentions, the court did not accept his testimony as ultimate fact. When viewed in total, both the sentencing order and the record point to one conclusion--Squires was personally...