Stano v. State, 63947

• Decision Date: 01 November 1984
• Docket Number: No. 63947,63947
• Parties: Gerald Eugene STANO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 890

460 So.2d 890

Gerald Eugene STANO, Appellant, v. STATE of Florida, Appellee.

No. 63947.

Supreme Court of Florida.

Nov. 1, 1984.

Rehearing Denied Jan. 15, 1985.

James B. Gibson, Public Defender and Christopher S. Quarles, Asst. Public Defender Seventh Judicial Circuit, Daytona Beach, for appellant.

Jim Smith, Atty. Gen. and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Stano appeals his adjudication of guilty of two counts of first-degree murder and his two death sentences. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and we affirm.

Stano pleaded guilty to first-degree murder for the strangulation/drowning death of one woman in 1975 and the shooting/drowning death of another woman in 1977. The court accepted the pleas and adjudicated Stano guilty as charged. Stano waived a sentencing jury, and, after a three-day sentencing hearing, the trial court sentenced him to death on each charge.

On appeal Stano argues that the trial court improperly imposed the death penalty and erred in denying his motion to preclude imposition of the death penalty and that section 921.141, Florida Statutes (1983), is unconstitutional. We find no merit to any of these points. Moreover, although not raised on appeal, we find a competent basis for the trial court's acceptance of Stano's guilty pleas and the adjudications of guilt.

For the 1977 murder the trial court found three aggravating circumstances (previous conviction of six first-degree murders; heinous, atrocious, or cruel; and committed in a cold, calculated, and premeditated manner) and three nonstatutory mitigating circumstances (Stano's difficult early childhood, his marital difficulties, and his confessions and guilty pleas) applicable. For the 1975 murder the trial court found the same aggravating and mitigating factors plus one additional aggravating circumstance (committed during a kidnapping). Stano now claims that the trial court found improper aggravating circumstances, considered evidence of nonstatutory aggravating circumstances, and failed to give substantial weight to relevant and appropriate mitigating factors. We disagree with these contentions.

Although Stano does not challenge the court's finding previous convictions of violent felonies in aggravation, it is important to note the court's conclusion regarding this circumstance. Prior to these proceedings, Stano had pleaded guilty to six counts of first-degree murder for the killing of six young women and, pursuant to a plea bargain agreement, had been sentenced to six consecutive terms of life imprisonment without eligibility of parole for twenty-five years. In the instant sentencing orders the trial court stated:

The Court is aware it is not to engage in a mere mechanical tabulation of criteria, but rather it is to carefully weigh and evaluate the evidence. In this case the large number of prior murder convictions is the dominant factor. This criteria is entitled to great weight. By itself, it would outweigh the mitigating factors, and call for the death penalty. This factor is, however, accompanied by additional aggravating circumstances. The aggravating circumstances far outweigh the mitigating circumstances.

(Emphasis supplied.)

We need not depend solely on the trial court's statement as to the weight given to the first aggravating factor as set out above, however, because, notwithstanding Stano's contentions, we find the challenged aggravating circumstances to have been established beyond a reasonable doubt. In support of finding these murders to have been committed in a cold, calculated, and premeditated manner the trial court noted that Stano struck both women, thereby stunning them, to keep them from leaving the car, drove to isolated areas (seventeen and one-half miles in some twenty-five minutes and twenty miles in thirty-five to forty minutes in the respective cases), and then, after ordering the women to leave the car, strangled one and shot the other in the head. The trial court could discern no reason or justification for these murders and termed them "completely senseless." These murders show the heightened premeditation needed to meet the test in Jent v. State, 408 So.2d 1024 (Fla.1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982), and the trial court did not err in finding both crimes to have been committed in a cold, calculated, and premeditated manner. Compare Card v. State, 453 So.2d 17 (Fla.1984) (Card injured victim, transported her to a secluded area, made her leave the car, and then cut her throat), and Jones v. State, 440 So.2d 570 (Fla.1983) (killed totally without provocation).

The trial court's finding heinous, atrocious, or cruel in aggravation is also amply supported. Both women had been struck by Stano and then driven considerable distances. Each must have known what was going to happen to her. Stano argues that, after being struck, the women could have been too dazed to have contemplated their fates. In fact, however, each woman was conscious and left the car under her own power when told to do so. On the totality of the circumstances each of these cases meets the standard of 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), and supports a finding of heinous, atrocious, or cruel.

Stano also argues that the court's use of the same facts to support both of these aggravating circumstances is an improper doubling of these two factors. As we have discussed before, heinous, atrocious, or cruel pertains more to the nature of the killing and the surrounding circumstances while cold, calculated, and premeditated pertains more to state of mind, intent, and motivation. Mason v. State, 438 So.2d 374 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984). The facts of these cases support both of these aggravating circumstances. See Squires v. State, 450 So.2d 208 (Fla.), cert. denied, 469 U.S. 892, 105 S.Ct. 268, 83 L.Ed.2d 204 (1984); Hill v. State, 422 So.2d 816 (Fla.1982), cert. denied, 460 U.S. 1017, 103 S.Ct. 1262, 75 L.Ed.2d 488 (1983). These two circumstances have not been improperly doubled up, and we find no merit to this argument.

In these sentencing orders the trial court, relying on 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), stated: "While lack of remorse is in itself not an aggravating circumstance, it is a factor to be considered in determining" whether a homicide is heinous, atrocious, or cruel. In Sireci we stated:

While lack of remorse cannot constitute an aggravating circumstance, it can be offered to the jury and judge as a factor which goes into the equation of whether or not the crime was specially heinous, atrocious, or cruel.

Id. at 971. More recently, however, we revisited this issue and held that

henceforth lack of remorse should have no place in the consideration of aggravating factors. Any convincing evidence of remorse may properly be considered in mitigation of the sentence, but absence of remorse should not be weighed either as an aggravating factor nor as an enhancement of an aggravating factor.

Pope v. State, 441 So.2d 1073, 1078 (Fla.1983) (emphasis supplied).

Stano now argues that the trial court's reliance on Sireci nullifies the finding of heinous, atrocious, or cruel. We disagree. The trial court did not find lack of remorse to be a nonstatutory aggravating circumstance; he merely used it to support a factor which is already amply supported by the record. We cannot fault the trial court for following a decision of this Court and for failing to second-guess this Court.

The facts also support the trial court's finding the 1975 murder to have been committed during a kidnapping. That woman tried to leave the car, but Stano struck her and locked the car doors. The trial court found her confinement not merely incidental to her murder. We...