Clark v. StateClark v. State
Larry Clark appeals his conviction of first-degree murder and sentence of death. We have jurisdiction pursuant to
Following indictmеnt by a Hillsborough County grand jury for first-degree murder, attempted first-degree murder, and armed robbery, a jury convicted Clark of all three counts and, by a vote of eight to four, recommended the death sentence. The trial court followed the jury‘s advisory verdict by imposing a sentence of death.
The crimes occurred on the afternoon of October 30, 1981 in Tampa. Two men entered a sign shop owned by the victims, Felix and Dorothy Satey, husband and wife. One of the men, subsequently identifiеd by Mr. Satey as Clark, had a gun. After shooting Mr. Satey twice and robbing him, Clark and his companion entered the residential portion of the premises and found the seventy-four-year-old Mrs. Satey who was confined by a physical disability to a castored typist‘s chair. Mr. Satey pleaded that his wife not be harmed, then heard a gunshot followed by his wife‘s moaning. When found, Mrs. Satey had a gunshot wound over the right eye, from which she subsequently died.
The first asserted error relating to the conviction is the admissiоn, over defense counsel‘s objection, of certain testimony of Richard E. Casey, a handwriting expert. Mr. Casey‘s qualifications as an expert in the field of questioned documents was not contested. The testimony to which Clark‘s counsel objected concerned the taking of handwriting exemplars from Davidson Joel James, Clark‘s co-defendant, whose trial was severed from that of Clark. Mr. Casey testified that the unusual length of time James took to complete the еxemplars
The second claimed error concerns the denial of a motion for mistrial when, during its deliberations, the jury requested that it be allowed to look at a windbreaker, allegedly belonging to the co-defendant James. The jacket had been excluded from evidence because it had not been exhibited to defense counsel prior to triаl. Although the trial court denied the motion for mistrial, it acceded to the defense request that the jury be instructed that its members not concern themselves with the jacket because it had not been admitted into evidence. The court further instructed the jury that it should not draw any inferences from anything said about the jacket, nor should it speculate as to why the jacket was not in evidence. Clark speculates that the excluded jacket must have assumed a particulаr significance in the minds of the jury. Whatever prejudice may have been caused Clark by the jurors’ interest in the jacket was cured by the trial court‘s response to their request to view it. In any event the jury‘s request does not demonstrate the sort of prejudicial impact which would make a mistrial an absolute necessity. See Ferguson v. State, 417 So.2d 639, 641 (Fla. 1982); Salvatore v. State, 366 So.2d 745, 750 (Fla. 1978), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979).
Having found no merit to Clark‘s arguments relating to the validity of his conviction, and further finding the conviction to be supported by substantial competent evidencе, we turn to consideration of the sentence imposed on Clark. Against no statutory mitigating circumstances, the trial court found the following five aggravating circumstances:
1. The defendant had been previously convicted of a felony involving the use or threat of violence to the person.
§ 921.141(5)(b), Fla. Stat. 2. The capital felony was committed while the defendant was engaged, or was an accomplice, in the commission of a burglary and a robbery.
§ 921.141(5)(d), Fla. Stat. 3. The capital felony was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
§ 921.141(5)(e), Fla. Stat. 4. The capital felony was especially heinous, atrocious, or cruel.
§ 921.141(5)(h), Fla. Stat. 5. The capital felony was a homicide committed by the defendant in a cold, calculated, and premeditated manner without pretense of moral or legal justification.
§ 921.141(5)(i), Fla. Stat.
Clark specifically challenges the sufficiency of the evidence in support of the third and fourth of these aggravating circumstances.
The burden is upon the state in the sentencing portion of a capital felony trial to prove every aggravating circumstance beyond a reasonable doubt. Williams v. State, 386 So.2d 538 (Fla. 1980). Not even “logical inferences” drawn by the trial court will suffice to support a finding of a particular aggravating circumstance when the state‘s burden has not been met. In regard to the third circumstance listed above, in order fоr a witness-elimination motive to support finding the avoidance of arrest circumstance when the victim is not
Here the proof of such a dominant or exclusive motive for the killing of Dorothy Satey was established. Clark made a statement to a cellmate that “one of them could identify him.” Mrs. Satey knew Clark from his past employment and had signed past paychecks to him. She knew, or would soon know, that he had just committed a violent felony on her husband. Because of her physical condition she was helpless to thwart further taking of the Satey‘s property, hence no other motive is readily apрarent.
The trial court‘s fourth aggravating circumstance, that the murder was especially heinous, atrocious, or cruel, on the other hand, is insufficiently supported by the record. The murder of a disabled and defenseless elderly womаn is a vile and despicable act. But under the standard set forth in 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), an especially heinous, atrocious, or cruel homicide is one
where the actual commission of the capital felony was accompanied by such additional facts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.
Id. at 9. Directing a pistol shot to the head of the victim does nоt establish a homicide as especially heinous, atrocious, or cruel. Kampff v. State, 371 So.2d 1007 (Fla. 1979). Although Mr. Satey testified that he heard his wife moan after being shot, there was no evidence of whether she was conscious after being shot, not did the medicаl examiner indicate how long Mrs. Satey survived or what degree of pain, if any, she suffered. Although the helpless anticipation of impending death may serve as the basis for this aggravating factor, there is no evidence to prove that Mrs. Satey knew for more than an instant before she was shot what was about to happen to her. Similarly, as pitiable as were Mr. Satey‘s vain efforts to dissuade his attackers from harming his wife, it is the effect upon the victim herself that must be considered in determining the existence of this aggravating factor. See Riley v. State, 366 So.2d at 21.
Finding the evidence insufficient to support one aggravating circumstance, when there are four valid aggravating circumstances and no mitigating circumstances, does nоt warrant a reversal of the sentence. Demps v. State, 395 So.2d 501 (Fla.), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981); Shriner v. State, 386 So.2d 525 (Fla. 1980), cert. denied, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981); Elledge v. State, 346 So.2d 998 (Fla. 1977).1
Two other asserted errors during the sentencing phase of Clark‘s trial do not merit extensive discussion. The trial judge, following the standard criminal instructions, refused to instruct the jury that the aggravating circumstances of killing during the commission of a robbery and for pecuniary gain must be treated as a single factor. Clark argues that the relative closeness of the jury‘s vote on its recommended sentence — eight to four in favor of death — suggests that the improper consideration of these two circumstances as separate factors may have been decisive in its arriving at a recommendation of death. Such an argument is sheer conjecture. Moreоver, the sentencing order clearly shows that the trial court, upon whom the sentencing responsibility actually rests, did not improperly count these factors twice. Similarly without merit is the contention
Finally, Clark has presented an attack upon the constitutionality of
We have considered, аnd rejected, arguments substantially the same as these in Menendez v. State, 419 So.2d 312 (Fla. 1982), and White v. State, 403 So.2d 331 (Fla. 1981), cert. denied, ___ U.S. ___, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983). The constitutional attacks are no more persuasive in conjunction with the facts of Clark‘s case.
We conclude that Clark has failed to demonstrate reversible error in any of the trial court‘s rulings or in the conduct of his trial. We further conclude that substantial competent evidence exists in the record to support both the conviction and sentence. Having so concluded, we affirm the judgment of the trial court.
It is so ordered.
ALDERMAN, C.J., and BOYD, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.
ADKINS, J., concurs with conviction, but concurs in result only in sentence.