Benedith v. StateBenedith v. State
We have on appeal the convictions and judgment of the trial court imposing a sentence of death upon Arturo Benedith. We have jurisdiction.
On the night of May 5, 1993, the Melbourne Police Department responded to a complaint at the Colonial Motel in Melbourne. At the scene, the police found John Shires’ dead body face down in the motel parking area. At trial, Shires’ roommate testified that Shires had placed a newspaper advertisement offering his 1991 red Nissan Stanza for sale. On the evening of the murder, Shires left his home after telling his roommate he was going to sell his car.
During the afternoon of that same day, May 5, 1993, witness George Lane saw appellant Benedith sitting with Thomas Taylor
The medical examiner testified that two bullets entered the left side of Shires’ face, and the third bullet entered in the middle right side of his back and passed through his lungs and heart. He testified that he could not determine the order in which the bullets were fired into Shires’ body.
Witness Ishmael Loblack, an auto mechanic, testified that around noon on May 5, 1993, the day of the murder, appellant and Taylor visited him at his trailer. Appellant asked Loblack to paint a car that appellant was planning to drive to New York. About midnight that same night, appellant knocked on Loblack‘s door and told Loblack that he had the car ready to be painted for his trip to New York. Loblack declined to paint the car and advised appellant to return the next day. Loblack identified Shires’ car as the car appellant had at Loblack‘s trailer the night of May 5.
Police found Shires’ car abandoned a few blocks from the murder scene. Appellant‘s fingerprints were on the hood, right and left fenders, driver-side windshield post, and trunk lid. Codefendant Taylor‘s fingerprints were on the front passenger-side door. Just over a month later, appellant was identified as being in possession in New York City of what was proven to be the murder weapon.
Appellant was charged with first-degree premeditated murder and robbery with a firearm. He was convicted by a jury of first degree felony murder during a robbery and robbery with a firearm. After a penalty phase proceeding, the jury recommended the death sentence by a vote of ten to two. The trial judge followed the jury‘s recommendation and sentenced Benedith to death.
On appeal, Benedith raises fifteen claims.1 Of these, we will discuss claims one and three. We find the claims concerning
In his first claim, appellant contends that the trial court erred in failing to grant a judgment of acquittal for first-degree felony murder because the circumstantial evidence was legally insufficient to support the guilty verdict. Appellant cites McArthur v. State, 351 So.2d 972 (Fla.1977), and Davis v. State, 90 So.2d 629 (Fla.1956). In these cases involving only circumstantial evidence this Court held that the State‘s evidence must not only be consistent with defendant‘s guilt but must also be inconsistent with any reasonable hypothesis of innocence. McArthur, 351 So.2d at 978 (quoting Davis, 90 So.2d at 631). Appellant offers as his hypothesis of innocence the explanation that he was at the Colonial Motel talking with Shires because he planned to purchase Shires’ car, not to steal it, and that he did not steal the car but only helped Taylor get away after Taylor killed Shires.
In State v. Law, 559 So.2d 187 (Fla.1989), we stated the trial judge‘s task in deciding a motion for acquittal in a circumstantial evidence case:
It is the trial judge‘s proper task to review the evidence to determine the presence or absence of competent evidence from which the jury could infer guilt to the exclusion of all other inferences. That view of the evidence must be taken in the light most favorable to the state. The state is not required to “rebut conclusively every possible variation” of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant‘s theory of events. Once that threshold burden is met, it becomes the jury‘s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.
Law, 559 So.2d at 189 (citations and footnote omitted).
Our review of the present record reveals that evidence presented at trial linked appellant to a plan to rob the victim of his car. Appellant contacted Loblack, the auto mechanic, on the day of the murder about painting a car he wanted to drive to New York. On the night of the murder, appellant was identified by Loblack as having the victim‘s car. Appellant‘s fingerprints were on the car. Appellant was identified as being with the victim beside the victim‘s car within five minutes of the firing of the shots that killed the victim. The victim‘s car was seen leaving the parking lot where the victim‘s body was left after the murder. Within a month of the murder, the murder weapon was in appellant‘s possession in New York when appellant attempted a robbery to which appellant pled guilty. The other participant in this crime was fourteen years old at the time of the crime and was seen in the front passenger seat of the victim‘s car as the car was driven away just after the murder. Although appellant was not seen in the car as it was being driven away, appellant was no
Based on these facts in the record, we find that the evidence on which the State relies is sufficient for the judge to have submitted this case to the jury on the theory of felony murder as to appellant. Jackson v. State, 575 So.2d 181, 186 (Fla.1991). Therefore, we find no error in the trial court‘s denial of appellant‘s motion for judgment of acquittal for the felony murder of John Shires or for the armed robbery which was the underlying felony.5 We affirm appellant‘s convictions for first-degree murder and armed robbery.
This brings us to the penalty phase. We conclude that appellant‘s death sentence cannot be sustained on the basis of the evidence presented by the State because the evidence was insufficient to withstand an analysis pursuant to Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and Jackson, 575 So.2d at 190.6
We find this case to be remarkably similar to Jackson, in which we affirmed felony murder and robbery convictions based upon circumstantial evidence. Id. at 193. We vacated the death sentence because we found insufficient evidence to establish that Jackson was the actual shooter or that Jackson‘s state of mind was sufficiently culpable to rise to the level of reckless indifference to human life warranting a death sentence for felony murder. Id. at 192-93. In Jackson, we stated:
In Enmund and Tison, the Court said that the death penalty is disproportional punishment for the crime of felony murder where the defendant was merely a minor participant in the crime and the state‘s evidence of mental state did not prove beyond a reasonable doubt that the defendant actually killed, intended to kill, or attempted to kill. Mere participation in a robbery that resulted in murder is not enough culpability to warrant the death penalty, even if the defendant anticipated that lethal force might be used, because “the possibility of bloodshed is inherent in the commission of any violent felony and this possibility is generally foreseeable and foreseen.” Tison, 481 U.S. at 151, 107 S.Ct. at 1684. However, the death penalty may be proportional punishment if the evidence shows both that the defendant was a major participant in the crime, and that the defendant‘s state of mind amounted to reckless indifference to human life. As the Court said, “we simply hold that major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” Tison, 481 U.S. at 158, 107 S.Ct. at 1688. Courts may consider a defendant‘s “major participation” in a crime as a factor in determining whether the culpable state of mind existed. However, such participation alone may not be enough to establish the requisite culpable state of mind. Id., 481 U.S. at 158 n. 12, 107 S.Ct. at 1688 n. 12.
We then held in respect to Jackson:
Although the evidence against Jackson shows that he was a major participant in the crime, it does not show beyond every reasonable doubt that his state of mind was any more culpable than any other armed robber whose murder conviction rests solely upon the theory of felony murder. See Tison, 481 U.S. at 150-51, 107 S.Ct. at 1684-85. The entire case is based on circumstantial evidence. The totality of the record shows that Jackson previously indicated his intent to rob Phillibert‘s store; that Jackson was seen driving in the vicinity of the store shortly before and
after the crime; that Jackson had been driving with his brother, whose fingerprints were found on the cash register; that Jackson said afterward “we had to do it because he had bucked the jack“; and that Jackson asked his mother to tell his brother to say “he hadn‘t been nowhere around the hardware store and get rid of the gun.” A reasonable inference could be drawn from the evidence in this record that either of the two robbers fired the gun, contrary to the finding of the trial judge. There was no evidence presented in this trial to show that Jackson personally possessed or fired a weapon during the robbery, or that he harmed Phillibert. There was no evidence that Jackson carried a weapon or intended to harm anybody when he walked into the store, or that he expected violence to erupt during the robbery. There was no real opportunity for Jackson to prevent the murder since the crime took only seconds to occur, and the sudden, single gunshot was a reflexive reaction to the victim‘s resistance. No other innocent lives were jeopardized.
575 So.2d at 192-93 (footnote omitted).
In this case, the trial court failed to follow the mandate of Diaz v. State, 513 So.2d 1045 (Fla.1987), that trial courts shall include in their sentencing orders findings supporting the Enmund/Tison culpability requirement. This is mandated not only to benefit our review but also to conform to Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986). We again state that trial courts are to include such findings in their sentencing orders. See Diaz, 513 So.2d at 1048 n. 2.
Rather than remand this case for compliance with Diaz, we have reviewed the record and determine, as we did in Jackson, that the record is lacking in competent, substantial evidence to support the Tison culpable state of mind requirement. The evidence does not prove that appellant was the actual shooter, that he procured the firearm for use in the robbery, that he possessed the firearm before or during the robbery, that he or Taylor had ever used a firearm previously in a robbery, or that he could have prevented the use of the firearm while the robbery was being committed. Based upon the evidence, a reasonable inference could be drawn that either appellant or Taylor did the actual shooting.7 Thus, the death sentence must be vacated.
Accordingly, having reviewed the entire record, we affirm the convictions for armed robbery8 and first-degree murder but vacate appellant‘s death sentence. We direct that upon remand he be sentenced to life imprisonment without eligibility for parole for twenty-five years.
It is so ordered.
KOGAN, C.J., and OVERTON, SHAW, HARDING, WELLS, ANSTEAD and PARIENTE, JJ., concur.