Vasil v. State, 46654

• Decision Date: 14 June 1979
• Docket Number: No. 46654,46654
• Citation: 374 So.2d 465
• Parties: George Thomas VASIL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 465

374 So.2d 465

George Thomas VASIL, Appellant, v. STATE of Florida, Appellee.

No. 46654.

Supreme Court of Florida.

June 14, 1979.

Rehearing Denied Sept. 21, 1979.

Elton H. Schwarz, Public Defender, and Bruce M. Wilkinson, Asst. Public Defender, Stuart, and Tobias Simon and Elizabeth J. duFresne, Miami, for appellant.

Jim Smith, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

George Vasil has appealed his first degree murder conviction and sentence of death. We have jurisdiction under article V, section 3(b)(1) of the Florida Constitution.

On September 19, 1974, twelve-year-old Pamela Vasser was murdered in a park in Fort Pierce. The appellant, fifteen years of age at the time, was seen in the area shortly before the killing. Upon questioning by the state attorney's investigator, the appellant eventually confessed.

In substance, the appellant said he surprised the victim from behind, grasping her around the waist and throat and threatening to kill her if she screamed. He took her to a wooded area and forced her to remove her clothing. When he touched her genitals against her will, she screamed, and he struck her in the head with a rock. Then he attempted rape upon her, but did not effect penetration because he failed to achieve an erection. The appellant then stuffed the girl's underpants into her mouth, struck her again with a rock, and stabbed her in the vagina with a palmetto branch.

The victim suffered head wounds and lacerations of her vagina, rectum, and urinary bladder. The cause of death was suffocation.

The indictment alleged that appellant killed the victim "unlawfully and from a premeditated design to effect" her death, but the prosecution proceeded on alternative theories of premeditation and felony murder. This is in keeping with the rule that premeditation is "presumed by law from the accused's perpetration of a violent felony. In such a case, the offense remains premeditated murder; only an element of it is deemed proven by evidence of the accused's felonious conduct." Ables v. State, 338 So.2d 1095, 1097 (Fla. 1st DCA 1976), Cert. denied, 346 So.2d 1247 (Fla.1977).

Vasil presents a number of points on appeal, including a challenge to the constitutionality of the capital felony sentencing law. Since his contentions on the constitutional question have previously been ruled on by this Court, we will not now reconsider them. See, E. g., Alvord v. State, 322 So.2d 533 (Fla.1975) Cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976); Proffitt v. State, 315 So.2d 461 (Fla.1975), Affirmed, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); State v. Dixon, 283 So.2d 1 (Fla.1973), Cert. denied sub nom. Hunter v. Florida, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974).

We now proceed to consider Vasil's other contentions.

I.

The appellant contends that the trial court erred in admitting testimony of his confession. The interrogation which culminated in the confession took place in the presence of the appellant's father. The trial court inquired into the circumstances of the interrogation and ruled that the waiver of Miranda rights was knowingly and intelligently made and the confession itself was voluntary. Our review reveals that there was sufficient evidence to support the court's decision. See, E. g., T. B. v. State, 306 So.2d 183 (Fla. 2d DCA 1975); Hernandez v. State, 273 So.2d 130 (Fla. 1st DCA), Cert. denied, 277 So.2d 287 (Fla.1973); Arnold v. State, 265 So.2d 64 (Fla. 3d DCA 1972), Cert. denied, 272 So.2d 817 (Fla.1973); Hallihan v. State, 226 So.2d 412 (Fla. 1st DCA 1969).

II.

The appellant contends that his conviction must be reversed because a number of persons were excused from service on the grand and petit juries, at their request, pursuant to section 40.01(1), Florida Statutes (1973). This, appellant argues, violated his right, under the sixth and fourteenth amendments to the United States Constitution, to a jury drawn from a representational cross-section of the community. Section 40.01(1), Florida Statutes (1973) provides:

(1) Grand and petit jurors shall be taken from the male and female persons over the age of twenty-one years, who are citizens of this state and who have resided in this state for one year and in their respective counties for six months and who are fully qualified electors of their respective counties; provided, however, that expectant mothers and mothers with children under eighteen years of age, upon their request, shall be exempted from grand and petit jury duty.

The statute allows expectant mothers and mothers of minor children the option of being excluded from jury service. Thus it differs from the statute that was at issue in the case cited by the appellant, which excluded all women from jury service unless they expressly requested to serve. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). We have held that the class made subject to being excluded under our exemption statute is not so distinctive as to evoke constitutional concern under Taylor. McArthur v. State, 351 So.2d 972, 975 (Fla.1977).

III.

The appellant contends that the jury instructions defining second degree felony murder were erroneous. He was tried under section 782.04, Florida Statutes (1973), the murder statute in effect at the time of the offense, ¹ which provided:

(1)(a) The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing, or discharging of a destructive device or bomb, or which resulted from the unlawful distribution of heroin by a person over the age of seventeen years when such drug is proven to be the proximate cause of the death of the user, shall be murder in the first degree and shall constitute a capital felony, punishable as provided in § 775.082.

(b) In all cases under this section, the procedure set forth in § 921.141 shall be followed in order to determine sentence of death or life imprisonment.

(2) When perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, or when committed in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing, or discharging of a destructive device or bomb, except as provided in subsection (1), it shall be murder in the second degree and shall constitute a felony of the first degree, punishable by imprisonment in the state prison for life or for such term of years as may be determined by the court.

(3) When perpetrated without any design to effect death, by a person engaged in the perpetration of, or in the attempt to perpetrate, any felony other than arson, rape, robbery, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing, or discharging of a destructive device or bomb, it shall be murder in the third degree and shall constitute a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084.

In instructing the jury, the trial judge differentiated among the three degrees of murder in the following manner:

Murder in the first degree is the unlawful killing of a human being when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed by a person engaged in the perpetration of or in the attempt to perpetrate any . . . rape . . . (other enumerated offenses omitted).

The killing of a human being when committed by a person engaged in the perpetration of or in the attempt to perpetrate any . . . rape . . . (enumerated offenses omitted) is murder in the first degree, even though there is no premeditated design or intent to kill.

If a person kills another in trying to do or commit any rape, or while escaping from the immediate scene of such crime, the killing is in perpetration of or in the attempt to perpetrate such crime.

It is the crime of rape to ravish or carnally know a female person of the age of eleven years or more by force and against her will.

Murder in the second degree is the killing of a human being by the perpetration of an act imminently dangerous to another and evincing a depraved mind regardless of human life, although without a premeditated design to effect the death of any particular individual and not done in the perpetration of or in the attempt to perpetrate any . . . rape . . . (enumerated offenses omitted).

Murder in the third degree is the unlawful killing of a human being when perpetrated without any design to effect death by a person engaged in the perpetration of or in the attempt to perpetrate any felony other than arson, rape, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb.

A felony is a crime punishable by death or by imprisonment in the State Prison System.

Specifically, the appellant contends that the trial court erred when, in defining second degree murder for the jury, he said "not done in the perpetration of . . . rape," while the statute provides "or when committed in the perpetration of . . . rape."

The difference between first degree felony murder and second degree felony murder, under the law at the time of the offense, ² was explained in State v. Dixon, 283 So.2d 1, 11 (Fla.1973), as follows:

(T)he Legislature . . . (intended) to resurrect the distinction between principals in the first or second degree on the one hand and accessories before the fact on the other, in determining whether a party to a violent felony resulting in murder is chargeable with murder in the first degree or murder in the second...