Trepal v. State, 77667

• Decision Date: 10 June 1993
• Docket Number: No. 77667,77667
• Citation: 621 So.2d 1361
• Parties: 18 Fla. L. Week. S327 George J. TREPAL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1361

621 So.2d 1361

18 Fla. L. Week. S327

George J. TREPAL, Appellant, v. STATE of Florida, Appellee.

No. 77667.

Supreme Court of Florida.

June 10, 1993.

Rehearing Denied Aug. 23, 1993.

Ronald N. Toward, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen. and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

George J. Trepal (Trepal) appeals his first-degree murder conviction and death sentence. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla.Const. We affirm.

Trepal was convicted of the first-degree murder of Peggy Carr. ¹ Trepal also was convicted of six counts of attempted first-degree murder (other members of the Carr household), seven counts of poisoning food or water, and one count of tampering with a consumer product (Coca-Cola). ² The jury recommended the death penalty for the murder by a vote of nine to three, which the trial judge imposed.

The judge found three statutory aggravating factors: ³ previously convicted of a another capital felony or of a felony involving the use or threat of violence (the contemporaneous attempted-murder convictions); great risk of death to many persons (introducing poisoned Coca-Cola into the multiple-children Carr household); and committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification (carefully removing the cola bottle caps, dissolving the poison in solution, adding the solution to the bottles, carefully replacing the caps, and then secreting the cola into the Carr household). He found one statutory mitigating factor ⁴ (no significant history of prior criminal activity--only one conviction for illegal manufacture of amphetamines); and several nonstatutory mitigating factors (happy childhood and marriage; high intelligence; above-average adjustment to prison life; and kind and generous). The court imposed, concurrent to the death penalty, a ninety-year sentence for the remaining offenses.

Trepal raises seven issues on appeal: 1) the evidence was insufficient to support the conviction for first-degree murder; 2) the bottle of poison found in Trepal's garage should have been suppressed; 3) evidence ⁵ linking Trepal to the crime was erroneously admitted; 4) Trepal did not "cause" Peggy Carr's death, rather the treating physician did (raised for the first time on appeal); 5) counsel's waiver of jury instruction on maximum and minimum penalties rendered him ineffective; 6) failure to give an instruction on circumstantial evidence was an abuse of discretion; and 7) the death penalty is improper. ⁶

Trepal argues that the trial court erred in denying his motion for judgment of acquittal because the State failed to exclude every reasonable hypothesis of innocence. We disagree. We said in Cochran v. State, 547 So.2d 928, 930 (Fla.1989):

[T]he question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, the verdict will not be reversed on appeal. The circumstantial evidence standard does not require the jury to believe the defense version of facts on which the state has produced conflicting evidence, and the state, as appellee, is entitled to a view of any conflicting evidence in the light most favorable to the jury's verdict.

(Citations omitted.) We have defined and explained premeditation thus:

Premeditation can be shown by circumstantial evidence. Premeditation is a fully-formed conscious purpose to kill, which exists in the mind of the perpetrator for a sufficient length of time to permit of reflection, and in pursuance of which an act of killing ensues.... Evidence from which premeditation may be inferred includes such matters as the nature of the weapon used, the presence or absence of adequate provocation, previous difficulties between the parties, the manner in which the homicide was committed and the nature and manner of the wounds inflicted. It must exist for such time before the homicide as will enable the accused to be conscious of the nature of the deed he is about to commit and the probable result to flow from it insofar as the life of his victim is concerned.

Sireci v. State, 399 So.2d 964, 967 (Fla.1981) (citations omitted), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982).

We find the evidence sufficient to support a verdict of premeditated murder. There is substantial, competent evidence that prior to the death of Peggy Carr, the Carrs and Trepals, neighbors in Alturas, Florida, had had numerous altercations. Trepal once threatened one of the Carr children by saying, "I'm going to kill you." Shortly before Peggy Carr, her son, Duane, and her stepson, Travis, were hospitalized for thallium poisoning in October 1988, the Carrs received a note threatening: "two weeks to move out of Florida forever or else you will all die." Thallium-laced Coca-Colas were found in the Carr household, after weeks of searching, by state and federal environmental agencies. (The Carrs had vacated the house during the week of the hospitalizations and never had moved back.) When their next-door neighbor, Trepal, was asked why anyone would want to poison the family, he said, "to get them to move out, like they did."

Trepal had researched and written a pamphlet about voodoo for a Mensa ⁷ murder weekend, which read, in part:

Few voodooists believe they can be killed by psychic means, but no one doubts that he can be poisoned. When a death threat appears on the doorstep, prudent people throw out all their food and watch what they eat. Hardly anyone dies from magic. Most items on the doorstep are just a neighbor's way of saying, "I don't like you. Move or else!"

The themes (move or else) in the threatening note and in the voodoo pamphlet were similar.

Trepal told Goreck, an undercover agent, that the poisonings were "just a personal vendetta." Contrary to Trepal's assertion that he went to his wife's office every day, in fact he stayed at home or went to his own office each day. There was a window of time when the Carr household was unoccupied and it was undisputed that Trepal was able to surveil the household. There was testimony that the Carr house often was left unlocked. The Trepals and Carrs shared a water supply; Trepal's presence on the Carr property thus would not have been unusual.

The evidence at trial showed that Trepal is extremely intelligent, and has a highly developed knowledge of chemistry. Evidence also was presented that thallium is a by-product of amphetamine production and Trepal was the chemist for an amphetamine laboratory in the 1970s. ⁸ Thallium is a poison so toxic ⁹ that it has been banned by the Food and Drug Administration since 1982. Because of its toxicity, its sale and distribution are controlled and recorded, and it is not available to the general public, but only to universities and research centers. A bottle of thallium was found in Trepal's garage in Alturas. A hand-assembled journal, bearing Trepal's prints and containing information on poisons, including thallium, and data on the autopsy detection of poisons, was found in Trepal's Sebring home. A great many chemicals were found there, along with chemical equipment. The Agatha Christie novel, Pale Horse, dealing with murder by introducing thallium into a household, also was found there.

Evidence was presented that of the chemical forms of thallium that exist, only one form can be introduced into Coca-Cola without producing noticeable changes in the drink. Evidence was presented that the bottle caps had been pried off the Coca-Cola bottles. Evidence was introduced that worldwide, Coca-Cola found no other incidences of tampering with the product, and received no ransom note after the poisoning. Evidence also was presented that a bottle-capping machine was seen among the items in the Trepals' garage when they moved into their Alturas home.

The evidence thus showed that Trepal had motive; opportunity; means, including knowledge, poison, and equipment; and had made statements tying him to the crime. We find this evidence sufficient to support the jury's verdict.

Trepal raises as his second issue that the bottle of thallium found in his garage should have been suppressed, because he had a reasonable expectation of privacy there. The denial of a motion to suppress is presumed correct. McNamara v. State, 357 So.2d 410 (Fla.1978). A reviewing court must interpret the evidence in the light most favorable to sustaining the trial court's ruling. State v. Riehl, 504 So.2d 798 (Fla. 2d DCA), review denied, 513 So.2d 1063 (1987). "It is ... the totality of the circumstances in any given case which must be looked to in determining whether a defendant had a reasonable expectation of privacy in the premises searched." State v. Suco, 521 So.2d 1100, 1102 (Fla.1988).

The trial judge made the following findings supporting the denial of Trepal's motion. Trepal and his wife moved from their home in Alturas to Sebring in November 1989. Trepal personally supervised the movers and specifically identified the items to be moved and the items to be left behind; the bottle of poison was among the items to be left behind. Trepal and Goreck, an undercover agent, entered into an oral rental agreement on December 5, 1989 and on December 7 Goreck mailed a $350 money order as payment for the first month's rent. On December 12 Trepal informed Goreck that he had cashed the money order and that she could move in immediately; although he indicated that the garage still needed some "cleaning out," the rental agreement contained no reservations concerning Goreck's occupancy. On December 12 Goreck, other law enforcement officers, and crime scene technicians entered the unlocked garage and found a bottle, later identified as containing thallium, in a drawer of a workbench. Trepal, like Goreck, enjoyed woodworking--the garage was used as a woodworking shop and during the spring of 1989,...