Burr v. StateBurr v. State
Appellant Charlie Burr was indicted for the first-degree murder of a store clerk during a robbеry at a convenience store near Tallahassee. At the trial the state‘s key witness was Domita Williams who testified that she was with appellant the morning of the murder. She testified that they drove to the store where she bоught a cheeseburger and candy bar and that when she returned to the car appellant entered the store. She said that she heard a shot and then appellant came out. According to her testimony, they thеn drove to an apartment where appellant was staying and she told Katrina Jackson and Tammy Footman about the incident. Upon being called as a witness, Katrina Jackson at first denied Williams had told her anything, but aftеr being declared a hostile witness and upon cross-examination by the state, she corroborated Williams’ testimony. The state then presented evidence of collateral crimes. Three convenience store clerks from Brevard County testified that appellant robbed and shot them in three separate incidents within a period of nineteen days after the murder charged in the instant case.
The defense called Domita Williams as its main witness. She recanted her earlier testimony and claimed that she was not with appellant the morning of the murder.
In rebuttal the state proffered Tammy Footman‘s testimony; she had heard the previous day‘s testimony where Williams had inculpated appellant, but had not heard Williams’ recantation. Over appellant‘s objections, Footman was allowed to testify concerning Williams’ statements to her to the effect thаt she was present at the murder. An investigator was also allowed to testify about Williams’ statements to him, which were consistent with her original testimony. An interview of Williams, recorded on audiotape, was played for the jury.
The jury fоund appellant guilty of first-degree murder and robbery with a firearm. At the sentencing hearing the state presented no additional evidence. The defense presented several witnesses who testified that appellаnt was a good man and had been raised a Christian. The jury recommended a sentence of life imprisonment.
Notwithstanding the jury‘s recommendation of a life sentence, the trial judge sentenced appellant to death. In support of his sentence, the judge found as aggravating circumstances that the murder was committed during the course of a robbery, that it was committed to avoid or prevent a lawful arrest, and that it was committed in а cold, calculated, and premeditated manner without any pretense of moral or legal justification. The judge found nothing in mitigation.
Appellant‘s first argument on appeal is that he was denied due process оf law because the selection of grand jury foremen in Leon County is racially discriminatory. Appellant moved to dismiss the indictment, claiming he made a prima facie case of racial discrimination by showing
Appellant‘s next argument is that there is insufficient competent evidеnce to support affirmance of his conviction and that in the interest of justice he should be granted a new trial. See
Appellant also argues that the conviction should be reversed in the interest of justice because Ms. Williams originally testified under duress. The record shows that on the day of the trial Ms. Williams indicated for the first time that her testimony would not implicate appellant. The state attorney then conferred with her and advised hеr of the consequences of committing perjury and of the importance of telling the truth. After this conversation, Ms. Williams testified as originally expected. During her recantation she explained that she had changed hеr mind and agreed to testify against appellant because the state attorney was furious with her and had threatened to put her in jail. However, on cross-examination by the state, Ms. Williams testified that the state attornеy had neither threatened her nor behaved in a hostile manner but had merely emphasized the importance of telling the truth. This admission and the fact that her testimony implicating appellant was consistent with her original stаtements to her friends and the police belie appellant‘s contention that Ms. Williams’ testimony was the product of coercion or duress.
Appellant‘s next point on appeal is that the trial court erred by allowing into evidence the testimony of the other convenience store clerks to the effect that he had robbed them. Appellant contends that their testimony was not relevant to any issue of material fact. The state responds that such evidence was relevant to show identity, by showing the similarities between those shootings and this one, and to prove appellant had the intent to kill the victim. The state attempted to prove this latter element through the testimony of one of the other convenience store clerks who testified that appellant told him he was going to kill him.
We find that this evidence of collateral crimes was relеvant to establish identity and intent and was therefore properly admitted. Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959);
Appellant next argues that the court erred by failing to control the state‘s inflammatory and prejudicial argument. However, no objections were made with respect to the comments appellant now complains about, except for one of them. We therefore find that this point has not been properly preserved with respect to most of the comments appellant now claims
The one cоmment appellant did object to was the prosecutor‘s statements that there were people who were scared in this case and that appellant “executes” people. The trial judge rulеd that such statements were a fair comment upon the evidence and denied appellant‘s motion for a mistrial. We do not find these statements to have been so unduly inflammatory or prejudicial as to warrant a mistrial. See Blair v. State, 406 So.2d 1103 (Fla. 1981).
Appellant‘s final argument with respect to the validity of his conviction is that the trial court erred in allowing a witness to testify in violation of the rule of sequestration. After Ms. Williams recanted and testified for the defense, thе state called Tammy Footman as a rebuttal witness. Appellant objected on the grounds that Ms. Footman had been present during Ms. Williams’ original testimony. The state proffered Ms. Footman‘s testimony, and the trial court ruled thаt only that part of her testimony that was consistent with her previous statement could be admitted. Because it was thus shown that Ms. Footman‘s testimony was not substantially different from what it would have been had she not heard Ms. Williams’ testimony, thе trial court did not abuse its discretion in allowing her to testify. Steinhorst v. State; Dumas v. State, 350 So.2d 464 (Fla. 1977).
With respect to his sentence, appellant claims that the trial judge erred in finding that the murder was committed for the purpose of avoiding a lawful arrest and in finding that it was committed in a cold, calculated and premeditated manner without pretense of any moral or legal justification. See
Finally, appellant claims that the trial judge erred in imposing the death sentence over the jury‘s recommendation of life. Appellant claims that reasonable people could differ as to the appropriate punishment because Ms. Williams’ recantation created some doubt, albeit not a reasonable doubt, that appellant had indeеd committed the murder. However, a “convicted defendant cannot be `a little bit guilty.’ It is unreasonable for a jury to say in one breath that a defendant‘s guilt has been proved beyond a reasonable doubt and, in the next breath, to say someone else may have done it, so we recommend mercy.” Buford v. State, 403 So.2d 943, 953 (Fla. 1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982). There were several aggravating circumstances and no mitigating circumstances, so death was to be presumed the appropriate penalty. State v. Dixon, 283 So.2d 1 (Fla. 1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). Moreover, there was no reasonable basis, discernible from the record, for the jury to recommend life. Therefore the judge was justified in overruling the jury‘s recommendation. See, e.g., Stevens v. State, 419 So.2d 1058 (Fla. 1982), cert. denied, 459 U.S. 1228, 103 S.Ct. 1236, 75 L.Ed.2d 469 (1983); Hoy v. State, 353 So.2d 826 (Fla. 1977), cert. denied, 439 U.S. 920, 99 S.Ct. 293, 58 L.Ed.2d 265 (1978).
The aggravating cirсumstances adequately established and properly found by the sentencing court were:
(1) that the murder was committed in the course of a robbery;
(2) that the murder was committed for the purpose of avoiding arrest and prosecution;
(3) that the murder was committed in a cold, calculated, and premeditated manner without pretense of moral or legal justification.
The judgment of conviction and the sentence of death are affirmed.
It is so ordered.
ALDERMAN, EHRLICH and SHAW, JJ., concur.
OVERTON and McDONALD, JJ., concur in the conviction, but dissent from the sentence.