Teffeteller v. State

• Decision Date: 25 August 1983
• Docket Number: No. 60337,60337
• Citation: 439 So.2d 840
• Parties: Robert Alan TEFFETELLER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 840

439 So.2d 840

Robert Alan TEFFETELLER, Appellant, v. STATE of Florida, Appellee.

No. 60337.

Supreme Court of Florida.

Aug. 25, 1983.

Rehearing Denied Nov. 1, 1983.

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

Jim Smith, Atty. Gen. and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Robert Teffeteller appeals his conviction for the first-degree murder of Peyton Moore and his sentence of death. He also appeals his sentence for the charge of using a firearm in the commission of a felony, for which he received a concurrent term of three years. We have jurisdiction of this cause pursuant to article V, section 3(b)(1), Florida Constitution. Finding no merit to any of appellant's challenges to his conviction, we affirm the conviction. We also affirm the sentence for the firearms offense. However, we reverse the sentence of death imposed after a jury recommendation of death because of improper and prejudicial comments by the prosecutor during the penalty phase and remand for a new sentencing hearing before a new jury.

In January 1979, Peyton Moore was walking back to his home in Ormond Beach after jogging on the beach. He was stopped by appellant and George Overton in a car driven by appellant. Overton asked for Moore's wallet. Moore told the men he had no money. A shotgun was then pointed out the passenger side window at Moore and fired. The car sped away. Moore sustained massive abdominal damage due to the shotgun blast but remained conscious and coherent for about three hours. He was given emergency aid both at the scene and at the hospital. At both locations, he gave a statement to the police describing what happened. Moore later died on the operating table. Eventually, appellant was caught after a series of travels around the country with Overton and others and indicted for the murder. Trial proceeded but on the second day the court declared a mistrial due to improper references, prompted by questions from the court to a state witness, relating to the murder of Overton by appellant in Texas. The trial judge then recused himself. At the new trial, appellant was convicted and sentenced to death.

Appellant raises a total of fourteen issues on this appeal. We will discuss six; the others have been carefully considered by this Court and held to be meritless.

Appellant first argues that he was denied due process when the trial court overruled his objection and denied his motion for new trial which was based upon the state's improper bolstering of a witness's testimony through the introduction of a prior consistent statement. The testimony of Donald Poteet was both lengthy and incriminating to the appellant. Among other things, Poteet testified that appellant pointed out the street where he had shot Moore. During the testimony, the prosecutor asked, "And did you tell Lieutenant Blankenship basically the same thing that you have testified here today?" Poteet answered, "Yes, sir." Appellant's timely objection was overruled. Appellant argues that a prior consistent statement may not be introduced to shore up a witness's testimony unless and until an effort is made to impeach his testimony. Van Gallon v. State, 50 So.2d 882 (Fla.1951); Trainer v. State, 346 So.2d 1081 (Fla. 1st DCA), cert. denied, 352 So.2d 175 (Fla.1977). While this is a correct statement of the law, it lacks applicability to the instant set of facts. The trial court found that the question was designed to tie Poteet's testimony in "time-wise" with prior testimony and to locate it in perspective; the judge described it as "making an envelope." Additionally, the subsequent testimony of Poteet revealed a necessity to identify and localize the statement in light of other testimony that appellant had later instructed Poteet and another confident to change their stories and to claim that the now-deceased Overton was the triggerman.

Even if the trial court's ruling were error, we find that it was harmless. "A judgment will not be reversed unless the error was prejudicial to the substantial rights of the appellant." Palmes v. State, 397 So.2d 648, 653 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981). "In determining whether an erroneous ruling below caused harm to the substantial rights of the defendant, an appellate court ... inquires generally whether, but for the erroneous ruling, it is likely that the result below would have been different." 397 So.2d at 653-54. Almost identical testimony to Donny Poteet's was elicited from witnesses Kuykendall and Danny Poteet. In fact, these two individuals' statements were more incriminating and more damaging to appellant than the statement objected to. The result below clearly would not have been any different even had Donny Poteet not testified at all. We thus hold that the error, if any, was harmless.

Appellant's second claim is that the trial court erred in finding certain hearsay evidence admissible under the dying declaration exception. The trial court allowed into evidence Peyton Moore's statements to Officer Morgan which described the nature of the robbery encounter, and in particular a description of the passenger of the car. Earlier, Morgan had testified that Moore had commented, "Oh God, I'm going." In response to that comment, attending doctors had consoled Moore and told him he should not worry. He died soon thereafter. Appellant argues that there was insufficient testimony to establish that Moore actually believed and was aware of his dying condition and thus a sufficient predicate was not laid. We disagree.

It is not necessary that the evidence ... should consist of express utterances of the deceased to the effect that he knew he was going to die, or could not live, or would never recover. It may be gathered from any circumstance or from all the circumstances of the case, and is sufficient if the evidence ... satisfies the judge that the deceased knew and appreciated his condition as being that of an approach to certain and immediate death.

Lester v. State, 37 Fla. 382, 385, 20 So. 232, 233 (1896). See also Covington v. State, 145 Fla. 680, 200 So. 531 (1941); Johnson v. State, 113 Fla. 461, 152 So. 176 (1934); Mills v. State, 264 So.2d 71 (Fla. 1st DCA 1972). In the case sub judice, Moore's initial cry that he was "going," coupled with the statements from attending Doctors Knight, Schwartz, Doig and Marino that terminal patients on the "final glidepath" are aware of their impending death and that the doctors believed, given the nature of the wound and Moore's lucidity, that Moore knew he was dying, are sufficient predicates to allow the introduction of the dying declaration of Moore. Whether a proper and sufficient predicate has been laid for the admission in evidence of a dying declaration is a mixed question of law and fact and will not be disturbed unless clearly erroneous. Johnson v. State. We cannot say that it was clearly erroneous for the trial court to admit the dying declaration in the instant case.

Appellant next argues that the trial court erred in failing to instruct the jury on the essential elements of the underlying felony. He argues that since the evidence showed, at most, felony murder, the court inadequately instructed on the underlying felony of attempted robbery. In particular, he claims that the instructions given were deficient in that they omitted aid in defining "attempt" and "intent to permanently deprive another of property." We believe that appellant's argument fails because his initial premise is invalid, thus we do not need to address the adequacy of the instruction. ¹ We find that the evidence shows that the conviction can be sustained not solely under a felony murder theory but also under a premeditation theory. The latter being valid, the alleged inadequacies in the underlying felony instructions become moot. There is evidence in the record that could have been believed by the jury that proves beyond a reasonable doubt that appellant was indeed the triggerman in this murder and that appellant acted from a premeditated design to effect the death of Peyton Moore. Of significance were appellant's admissions to the Poteet brothers and Richard Kuykendall that he had murdered the victim and the later attempts by the appellant to have these three individuals change their story and blame the murder on the deceased Overton. Circumstantial evidence is admissible to establish premeditation. See 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); Spinkellink v. State, 313 So.2d 666 (Fla.1975), cert. denied, 428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221 (1976); Larry v. State, 104 So.2d 352 (Fla.1958). Under the facts of the present case, we believe there is substantial, competent evidence to uphold appellant's conviction under a premeditation theory. That being so, any error in the instructions on the underlying felony of attempted robbery becomes harmless. Knight v. State, 394 So.2d 997 (Fla.1981); Frazier v. State, 107 So.2d 16 (Fla.1958).

We thus affirm appellant's conviction of murder in the first-degree. Additionally, even though the issue was not raised on this appeal, we have studied the record and found no error in appellant's conviction for the use of a firearm in the commission of a felony. That conviction likewise is upheld.

Appellant's remaining issues relate to the sentences he received for these crimes. He first argues that the trial court erred during the penalty phase in denying his motion for a cautionary instruction or a mistrial based upon improper and prejudicial comments by the prosecutor. We agree. During his argument to the jury, the prosecutor urged the jury to recommend that appellant receive the death penalty or else he would be paroled in twenty-five years and would kill again. Redundantly, the...