State v. Breedlove, 82731

• Citation: 655 So.2d 74
• Decision Date: 06 April 1995
• Docket Number: No. 82731,82731
• Parties: 20 Fla. L. Weekly S155 STATE of Florida, Appellant, v. McArthur BREEDLOVE, Appellee.
• Court: Florida Supreme Court

Page 74

655 So.2d 74

20 Fla. L. Weekly S155

STATE of Florida, Appellant, v. McArthur BREEDLOVE, Appellee.

No. 82731.

Supreme Court of Florida.

April 6, 1995.

Rehearing Denied June 1, 1995.

Robert A. Butterworth, Atty. Gen. and Richard B. Martell, Chief, Capital Appeals, Tallahassee, for appellant.

Michael J. Minerva, Capital Collateral Representative, Gail E. Anderson, Todd G. Scher and Terri L. Backhus, Asst. Capital Collateral Representatives, Office of the Capital Collateral Representative, Tallahassee, for appellee.

PER CURIAM.

The State appeals an order vacating Breedlove's death sentence and granting Breedlove a new sentencing hearing. We have jurisdiction pursuant to article V, section 3(b)(1) of the Florida Constitution.

Breedlove was convicted in 1979 of first-degree felony murder for killing a man during a residential burglary. The jury recommended that Breedlove be sentenced to death, and the trial judge imposed the death penalty. The judge found the following aggravating factors: (1) Breedlove had prior convictions for crimes of violence; (2) Breedlove committed the homicide during the course of a burglary; and (3) the homicide was especially heinous, atrocious, and cruel. The judge found that no mitigating circumstances applied.

Among his arguments raised on direct appeal, Breedlove contended that the trial court erred when it denied Breedlove's requested jury instruction regarding the heinous, atrocious, or cruel aggravator. Though not mentioned in our opinion, we necessarily rejected this contention when we affirmed the conviction and sentence in Breedlove v. State, 413 So.2d 1, 9 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982).

In 1992, Breedlove appealed the denial of his second motion for postconviction relief and filed a petition for habeas corpus which raised, in part, the unconstitutionality of the instruction on the heinous, atrocious, or cruel aggravator, the wrongful application of this aggravator to his case, and ineffectiveness of counsel during the penalty phase. We found that Breedlove's arguments regarding the unconstitutionality of the instruction on the heinous, atrocious, or cruel aggravator and the application of this aggravator to his case had already been fully considered on direct appeal and were therefore procedurally barred. Breedlove v. Singletary, 595 So.2d 8, 10 (Fla.1992). However, we remanded for an evidentiary hearing on the issue of the ineffectiveness of counsel at sentencing.

On remand, the trial court denied all relief. Breedlove appealed, but while that appeal was pending, we relinquished jurisdiction so that the trial court could hear Breedlove's instant motion for postconviction relief predicated upon the recently decided opinion in Espinosa v. Florida, --- U.S. ----, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). Breedlove argued that at his original trial the judge had erred when he refused to grant Breedlove's request for an expanded instruction for the heinous, atrocious, or cruel aggravator. The trial court ruled in Breedlove's favor and held that Breedlove had properly preserved his Espinosa claim regarding the vagueness of the jury instruction and that Breedlove should be granted a new sentencing hearing because the court could not determine beyond a reasonable doubt whether the jury would still have recommended the death penalty if the expanded instruction had been given.

At the outset, it is clear that the jury instruction on heinous, atrocious, or cruel given at Breedlove's trial was of a type that was declared unconstitutional ten years later in Espinosa. ¹ Further, we cannot accept the State's contention that Breedlove failed to preserve the issue at trial. He submitted a proposed instruction which contained the language deemed so critical to the validity of the aggravator in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). ² The judge denied the requested instruction as being "covered in the charge." In the appeal from his conviction, Breedlove argued that the judge had erred in denying his requested instruction. Thus, the point was sufficiently preserved. See James v. State, 615 So.2d 668 (Fla.1993); Atwater v. State, 626 So.2d 1325 (Fla.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1578, 128 L.Ed.2d 221 (1994).

However, we believe that the failure to give the requested instruction on heinous, atrocious, or cruel was harmless error. ³ The evidence presented at the trial clearly established that Breedlove committed the murder in a heinous, atrocious, or cruel manner. The fatal stabbing was administered with such force that it broke the victim's collar bone and drove the knife all the way through to the shoulder blade. The puncture of the victim's lung was associated with great pain and the victim literally drowned in his own blood. The victim had defensive stab wounds on his hands and did not die immediately. Moreover, the attack occurred while the victim lay asleep in his bed as contrasted to a murder committed in a public place. In fact, in discussing this aggravator in Breedlove's direct appeal, we stated that this killing was "far different from the norm of capital felonies" and set apart from other murders. Breedlove, 413 So.2d at 9. Under the facts presented, this aggravator clearly existed and would have been found even if the requested instruction had been given. See Chandler v. Dugger, 634 So.2d 1066, 1069 (Fla.1994); Jackson v. Dugger, 633 So.2d 1051, 1055 (Fla.1993); Gorby v. State, 630 So.2d 544, 548 n. 6 (Fla.1993), cert. denied, --- U.S. ----, 115 S.Ct. 99, --- L.Ed.2d ---- (1994); cf. Thompson v. State, 619 So.2d 261 (Fla.), cert. denied, --- U.S. ----, 114 S.Ct. 445, 126 L.Ed.2d 378 (1993). Further, there were two other valid aggravating circumstances, including the previous conviction of a violent felony. While Breedlove presented some testimony concerning possible psychological problems, two state experts expressly stated that they found no evidence of organic brain damage or psychosis and one of them said Breedlove was malingering. Any error in the instruction was harmless beyond a reasonable doubt and did not affect Breedlove's sentence. ⁴ State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

We reverse the order vacating Breedlove's death sentence.

It is so ordered.

GRIMES, C.J., and OVERTON, HARDING and WELLS, JJ., concur.

ANSTEAD, J., dissents with an opinion, in which SHAW and KOGAN, JJ., concur.

ANSTEAD, Justice, dissenting.

I would affirm the trial court's order because it correctly applied this Court's recent holding in James v. State, 615 So.2d 668 (Fla.1993), as well as the strict harmless error test we adopted in State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The majority approves of the trial court's reliance on James but disagrees with the court's harmless error analysis. The trial court held, and I agree, that it cannot be concluded beyond a reasonable doubt that the jury would have reached the same result had it received a proper, constitutional instruction.

Our holding today is directly at odds with our own recent appraisal of the facts in this case. In Breedlove v. Singletary, 595 So.2d 8 (Fla.1992), we were confronted with an identical harmless error issue involving counsel's failure to develop evidence of mitigating circumstances during Breedlove's penalty hearing. We held that Breedlove was entitled to an evidentiary hearing and, in doing so, characterized the facts as follows:

The State primarily argues that Breedlove has failed to demonstrate that any prejudice resulted even if his counsel was ineffective. However, it must be remembered that Breedlove's victim died from a single stab wound inflicted during the course of a burglary and that Breedlove acquired the weapon only after entering the house. The State conceded at the trial that this was a case of felony murder rather than premeditated murder. A strong presentation of mitigating evidence is more likely to tip the scales in a case where the killing was not premeditated. In the final analysis, we do not believe that the issue of ineffectiveness during the penalty phase can be resolved without an evidentiary hearing.

595 So.2d at 12 (emphasis added). ⁵

Further, our initial appraisal of the facts supporting the trial court's finding of the heinous, atrocious, or cruel aggravator is fully consistent with this analysis. In our original opinion, partially quoted in the majority opinion, we stated:

Although death resulted from a single stab wound, there was testimony that the victim suffered considerable pain and did not die immediately. While pain and suffering alone might not make this murder heinous, atrocious, and cruel, the attack occurred while the victim lay asleep in his bed. This is far different from the norm of capital felonies and sets this crime apart from murder committed in, for...