Thompson v. State

• Decision Date: 21 January 1976
• Docket Number: No. 45107,45107
• Citation: 328 So.2d 1
• Parties: Larry THOMPSON, a/k/a Mark A. Lewis, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1

328 So.2d 1

Larry THOMPSON, a/k/a Mark A. Lewis, Appellant, v. STATE of Florida, Appellee.

No. 45107.

Supreme Court of Florida.

Jan. 21, 1976.

Rehearing Denied March 23, 1976.

Richard L. Jorandby, Public Defender, and Kenneth J. Scherer and H. Joseph McGuire, Asst. Public Defenders, for appellant.

Robert L. Shevin, Atty. Gen., and Michael M. Corin, Asst. Atty. Gen., for appellee.

PER CURIAM.

The defendant, Larry Thompson, a/k/a Mark Anthony Lewis, 17 years of age, was indicted for first degree murder of Richard Dean. He was tried before a jury and found guilty as charged. On the same day, the jury was recalled to consider matters of aggravation and mitigation and to render an advisory opinion as to the sentence to be imposed. The jury recommended that defendant be sentenced to life imprisonment by a 12--0 vote. The trial judge expressed his appreciation to the jury for its service and recommendations as to the sentence. He then proceeded to dictate into the record his reasons for not following the jury's recommendation of life imprisonment and imposed a sentence of death in the electric chair.

The evidence presented at the trial that the defendant and one James Pinkney entered a Royal Castle and ordered food. Pinkney testified defendant told him to stick around 'that something was going to happen'. That when Richard Dean, Manager of the Royal Castle, went to the back, defendant jumped over the counter and grabbed something, at which time Dean returned. The defendant rushed Dean, and they both struggled into the back. The tussling continued back to the front, and at this time, Dean had a knife, and defendant attempted to hit Dean with a stool. About this time, Dean ran outside with the defendant in pursuit. The defendant, according to Pinkney, again made contact with Dean and somehow got the knife away from Dean and while still struggling stabbed Dean several times. Dean fell with the knife in his chest. After the stabbing, Pinkney testified, defendant want back inside, grabbed the bills from the cash register and ran away. Shortly thereafter, he saw the defendant in a phone booth counting the money, and defendant gave him $20.00.

The only other witness was the defendant, who made two statements to the authorities and testified in his own defense at the trial. The defendant's statements and his testimony at the trial, as to his version of the events leading up to the death of Dean, were essentially the same. Defendant's testimony was that he and Pinkney met in front of the Royal Castle, and Pinkney wanted to go in and rob the Royal Castle, by physically taking the money from Dean, but defendant suggested he could take the money from the cash register while Dean was in the back without his knowing about it. There was no testimony that either Pinkney or defendant was armed with a weapon of any kind. Both entered the restaurant, and when Dean went to the back, defendant told Pinkney to go outside and watch while he jumped over the counter. When he was about to get to the cash register, Dean returned and started hollering at him to get out and that he was going to call the police. Defendant testified that Dean picked up a butcher knife and attacked him, that he started to run, but Dean grabbed him, that during the struggle inside the restaurant he tried to throw a cup at him, grabbed at a butcher knife, but dropped it and finally picked up a stool and threw it at Dean. Dean then ran out the door and turned left, that he ran out behind him and turned right, and when Dean saw he was not chasing him, he turned around and started chasing the defendant. Defendant testified that he slipped and fell, and Dean, with the knife, jumped on him, and they started fighting again. That he tried to hold Dean's hand to keep him from stabbing him, and he somehow got the knife away from Dean. Dean started chocking him, and while Dean was choking him, he stabbed him, he believes, twice. After the stabbing, the defendant said he went back into the restaurant and discovered the money and Pinkney both gone.

The appellant has raised six points on appeal. The first point relates to admitting one of the confessions made by the defendant. Upon reviewing the record, it is apparent that this alleged confession was primarily a self-serving statement and was similar to another unquestioned statement, as well as defendant's testimony at the trial. The death of the deceased by defendant was never in question, only the manner in which it occurred was in issue. The motion to suppress was fully heard by the court and denied, and if error was harmless.

Appellant claims the court erred in instructing the jury on felony murder. Upon reviewing the evidence, we find there was sufficient evidence for the jury to find the homicide to have been committed in the commission or the attempted commission of a robbery and instructing the jury on felony murder was not error. The remaining four points raised by appellant has to do with the court's sentencing the appellant to death.

Challenge is again made as to the constitutionality of the imposition of the death sentence, pursuant to Sections 775.082, 782.04 and 921.141, Florida Statutes. This court has previously ruled the imposition of the death penalty, in accordance with the foregoing statutes, as not being in violation of either the Florida or United States Constitution, and we can find no reasons to depart from our earlier ruling in State v. Dixon, 283 So.2d 1 (Fla.1973).

The court did not request a presentence investigation prior to sentencing appellant. Such failure is urged by appellant as being in violation of Rule 3.710, Florida Rules of Criminal Procedure, which states:

'Presentence Report.

In all cases in which the court has discretion as to what sentence may be imposed, the court may refer the case to the probation and parole commission for investigation and recommendation. No sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the age of 18 years, until after such investigation has first been made and the recommendations of the commission received and considered by the sentencing judge.'

The Committee Note of Rule 3.710 gives a fair indication of the meaning and scope of the Rule and reads as follows:

'1972 Committee Note:

The rule provides for the utilization of a pre-sentence report as part of the sentencing process. While use of the report is discretionary in all cases, it is mandatory in two instances, the sentencing of a first felony offender and of a defendant under 18 years of age. Of course, no report is necessary where the specific sentence is mandatory, e.g., the sentence of death or life imprisonment in a verdict of first degree murder.' Committee Note, Rule 3.710, Rules of Criminal Procedure.

Thus we hold that once the jury returns a verdict of first degree murder, the trial court is exempt from the mandatory presentence requirements of Rule 3.710, Rules of Criminal Procedure.

Appellant alleges that the trial court failed to comply with the requirements of Section 921.141, Florida Statutes, in that it failed to make specific written findings of fact concerning aggravating or mitigating circumstances on which the court's death sentence was based. In this case, the trial court, after receiving the advisory opinion from the jury and prior to sentencing appellant, dictated into the record his findings of fact for imposing a sentence of death. Such dictation, when transcribed, becomes a finding of fact in writing and provides the opportunity for meaningful review, as required by 921.141, Florida Statutes.

The most important point raised by the appellant is whether the trial court erred in sentencing appellant to death.

In this case, we have a 17-year-old male who entered, unarmed, into the restaurant for the purpose of illegally getting money. He had no prior criminal record. The evidence is conflicting as to whether the appellant entered the restaurant with the intent to rob or only with the intent to take the cash when the manager was in the back. As a result of appellant entering the restaurant, a fight ensued when the deceased caught appellant in his attempt to take the money from the register. The deceased was armed with a knife, and after tussling around the restaurant, deceased ran outside still holding the knife. Appellant ran out behind him. Upon leaving the premises, the testimony is conflicting. Pinkney, who had turned state's evidence, testified the appellant ran after deceased, that deceased swung at appellant with the knife, but appellant grabbed deceased, took the knife away from him and while holding him stabbed him several times. Appellant's version was that he ran out behind deceased and turned the other direction and when deceased saw him running away turned and ran after him. While running away, he slipped and fell, and deceased jumped on him and tried to stab him. He says he somehow got the knife away and while deceased was choking him stabbed deceased at least twice.

The jury had sufficient evidence, based on the testimony, to justify a verdict of murder in the first degree. However, when the jury deliberated on its advisory opinion after being fully charged to consider all of the aggravating and mitigating circumstances required by Section 921.141, Florida Statutes, they returned a unanimous verdict recommending a sentence of life imprisonment. The jury, in effect, found the mitigating circumstances were such that the death penalty would not be proper.

This court is well aware that the recommendation of sentence by the jury is only advisory and is not binding on the trial court. However, the advisory opinion of the jury must be given serious consideration, or there would be no reason for the legislature to have placed such a requirement in the statute. It stands to reason that the trial court must express more concise and particular...