Vause v. State
| Citation | 424 So.2d 52 |
| Decision Date | 08 December 1982 |
| Docket Number | No. AB-460,AB-460 |
| Parties | Willie F. VAUSE, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Philip J. Padovano and M. Howard Williams, Tallahassee, for appellant.
Jim Smith, Atty. Gen., Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
Defendant appeals from convictions and sentences for third degree murder, shooting into an occupied vehicle, and using a firearm in the commission of a felony.
His points on appeal are:
I. Did the trial court err in allowing a radiologist to render an opinion as to the manner in which the fatal bullet became fragmented?
II. Did the trial court err in refusing to allow defense counsel to cross-examine a State witness about the specific nature of his prior criminal convictions?
III. Was the evidence sufficient to sustain a conviction for any crime greater than manslaughter?
IV. Was the defendant properly convicted of both murder in the third degree and the underlying felony of shooting into an occupied vehicle?
V. Should the judgment and sentence for using a firearm in the commission of a felony be vacated because that offense is necessarily included in the offense of shooting into an occupied vehicle?
VI. Did the trial judge err in applying the three-year mandatory minimum sentencing provisions of section 775.087?
We affirm in part and reverse in part.
On June 27, 1979, defendant was indicted for the first-degree murder, by premeditated design, of Randall Mayo and also charged with shooting into the vehicle occupied by Mayo and using a firearm in the commission of Mayo's murder. Defendant pled not guilty, contending Mayo died as the result of an accident, and his jury trial began on January 21, 1981.
On June 13, 1979, the defendant and about 20 other people were at Williams Landing drinking beer and listening to Mayo play the guitar. The defendant subsequently got into a fight with Buddy Rowan over defendant's refusal to move his car which was blocking Rowan's truck. Tommy Harrell broke up the fight and took defendant to his car. Horace Richardson asked the defendant to leave and the defendant said he was going to get his gun and come back and kill Rowan. Because he thought the defendant too drunk to drive, Richardson drove the defendant home in the defendant's car. They were followed by Tommy Harrell, his son, and his wife in their truck, and Johnny Pittman and Mayo in Pittman's car. On the way home, defendant told Richardson he was going to get a gun and kill all the people at Williams Landing.
While Richardson was helping the defendant into his house, Mayo got out of Pittman's car and into Harrell's truck. When Richardson came out, he got into Pittman's car. As the truck and car were leaving the defendant's driveway, the defendant came out of the house and yelled, "I'll beat all of you back down there and I'll blow everybody's brains out that's sitting on the porch down there." The defendant then fired a rifle, the first shot striking the road between the two departing vehicles, the second shot striking Mayo who was in Harrell's truck, and the third shot "singing through the trees." Mayo subsequently died at the hospital of the gunshot wound.
At trial, over defendant's objection, the trial court allowed Dr. Beeckler, a radiologist, to testify that it was his opinion, based upon the autopsy X-rays, that the bullet entered Mayo's body intact. The defense was contending that the fatal bullet (as well as the other two shots) was not fired at the departing vehicles but was instead deflected from a dogwood tree, striking Mayo in an already fragmented state.
During the State's cross-examination of Harrell, he testified he had previously been convicted of two crimes. On cross-examination, the defendant attempted to inquire into the specific nature of those convictions but the trial court sustained the State's objection to such inquiry.
At the close of the State's evidence and again at the close of all evidence, defendant moved for judgments of acquittal which were denied by the trial court. The jury returned a verdict finding the defendant guilty of third degree murder, shooting into an occupied vehicle, and use of a firearm in the commission of a felony. The trial court sentenced defendant to twelve years in prison for third degree murder, twelve years for shooting into an occupied vehicle, and five years for use of a firearm in the commission of a felony, such sentences to run concurrently. The trial court also imposed a three-year firearm mandatory sentence under section 775.087.
We affirm Point I. The trial court did not abuse the broad discretion it has in determining the range of subjects on which expert witnesses may be allowed to testify. Johnson v. State, 393 So.2d 1069 (Fla.1980). Defendant must make a clear showing of error and has not done so. Dr. Beeckler's opinion testimony is not outside his special knowledge and expertise. Radiology is a medical specialty in which the physician concentrates on the performance and interpretation of X-ray examination. He has previously been qualified as an expert in radiology in a court of law and has given expert testimony. Moreover, he has interpreted X-rays involving gunshot wounds "hundreds of times." His opinion that the fatal bullet entered the victim's body intact and then later fragmented upon impact with the ribs is within reasonable medical certainty and was based upon his interpretation of the autopsy X-rays which were admitted into evidence. Contrary to defendant's argument, a ballistics expert is not qualified to interpret X-rays.
Point II is also affirmed. The trial court did not err in refusing to allow the defendant to cross-examine State witness about the specific nature of his two prior criminal convictions. Leonard v. State, 386 So.2d 51 (Fla. 2d DCA 1980); Sneed v. State, 397 So.2d 931 (Fla. 5th DCA 1981).
It has long been the law of this State that an attack upon the credibility of a witness by means of "other crimes" evidence is limited to the question whether the witness has been convicted of a crime. If the conviction is admitted, the inquiry may not be pursued to the point of naming the crime of which he was convicted. Nelson v. State, 395 So.2d 176, 178 (Fla. 1st DCA 1981).
Defendant's reliance upon McCrae v. State, 395 So.2d 1145 (Fla.1981) and Nelson, supra, in urging reversal is misplaced. Both McCrae, supra, and Nelson, supra, acknowledge the general rule that the specific nature of the prior conviction of a witness should not be brought out on cross-examination if the conviction was admitted. However, in these two cases, the courts found that it was proper to allow further inquiries into the specific nature of the prior conviction on cross-examination because the defense counsels, through their questions on direct examination, either tactfully attempted to mislead the jury into believing the prior convictions were inconsequential or elicited self-serving declarations regarding the prior convictions. In other words, the "door was opened" for further inquiry on cross-examination as to the type of prior convictions because the direct testimony went beyond the number of prior convictions. In the present case, the direct testimony was limited to the number of convictions which were admitted.
We also affirm Point III. There is sufficient evidence to sustain defendant's conviction of third degree murder under section 782.04(4), Florida Statutes (1979):
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 any arson, sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb, shall be murder in the third degree ....
Shooting into an occupied vehicle (of which the defendant was also convicted) is a felony. § 790.19, Florida Statutes (1979).
The facts could have justified a verdict of at least second degree murder under section 782.04(2), Florida Statutes (1979)--unlawful killing perpetrated by an act imminently dangerous to another and evidencing a depraved mind regardless of human life. Thus, the verdict of third degree murder is also warranted...
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Vause v. State
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