Fitzpatrick v. StateFitzpatrick v. State
Appellant Ernest Fitzpatrick was convicted of first-degree murder, two counts of attempted first-degree murder, and three counts of kidnapping. The trial judge imposed a death sentence for the crime of first-degree murder, concurrent sentences of life imprisonment for each attempted murder, and concurrent sentences of thirty years imprisonment for each of the kidnapping offenses. We have jurisdiction to review this case under
On April 29, 1980, appellant entered a realty office with a .38 caliber revolver taped to his hand. He accosted a secretary named Mary Blake and told her he wanted to use her as a shield and take her to a bank located a block away. When she resisted and screamed, he threatened to shoot her in the leg. He took her down a hallway toward the back of the building and rounded a corner. A delivery boy, Eric Shaw, entered the front door and walked down the same hallway, looking for someone to sign a receipt. When he turned the corner appellant pointed the revolver at him and told him not to run or else he would shoot him. Holding Blake around the waist and alternately pointing the pistol at her and at Shaw, appellant forced his two hostages back down the hallway in order to lock the front door. Shaw went to the front door but could not lock it because he did not have a key. He then re-joined appellant and Blake in the hallway.
Meanwhile, David Parks, who was in a nearby office when appellant entered the building, called the sheriff. Emerging from his office and trying to keep his voice as calm as possible, Parks asked Mary Blake what was wrong and if he could help her. Appellant pointed the gun at Parks and told him not to come any closer. Parks offered appellant the keys to his car and some money. Appellant refused, saying he wanted Blake to go with him. Appellant then marched his three hostages into the main
Within ten minutes of Parks’ phone call, two sheriff‘s deputies arrived and entered through the front door. The senior one, Deputy Smith, saw Shaw through the open partition and motioned to him to be quiet. Deputy Smith crept down the hallway and tried turning the handle to the office door. Upon finding it was locked he bumped the door a couple of times and announced that he was from the sheriff‘s department. He heard several voices shout and shots fired. One bullet passed through the wall near his head.
At about the time Deputy Smith stopped knocking, Deputy Heist pointed his gun through the partition and ordered appellant to freeze. Appellant swung around in the chair and shot Deputy Heist in the head, killing him. Shaw unlocked the office door and ran out while Parks jumped appellant, attempting to wrestle the gun away from him. As they fell to the floor struggling, Mary Blake escaped from the office. Appellant fired more shots, hitting Parks in the head. Then he pushed Parks away, stood up, and tried to fire his gun again, but the revolver was empty. Deputy Smith, who had entered the office, fired two shots, hitting appellant in the shoulder.
Appellant was charged with and convicted of the first-degree murder of Deputy Heist, the attempted first-degree murders of Deputy Smith and David Parks, and the kidnappings of Parks, Mary Blake, and Eric Shaw. In accordance with the jury‘s recommendation the trial judge imposed a sentence of death.
As his first point on appeal appellant argues that he was denied a fair trial in violation of the
This case is unlike Thomas v. State, 403 So.2d 371 (Fla. 1981), where we reversed a defendant‘s conviction because the trial judge refused to excuse for cause a venireman who conceded that he could not recommend any kind of mercy under any circumstances if the defendant were found guilty of murder. In this case none of the four veniremen ever indicated that he was unalterably opposed to recommending life sentences for convicted murderers. Their statements only indicated a tendency toward being in favor of the death penalty. “A man who opposes the death penalty, no less than the one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror.” Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S.Ct. 1770, 1775, 20 L.Ed.2d 776 (1968) (emphasis added). Witherspoon requires that veniremen who oppose the death penalty be excused for cause only when irrevocably committed before the trial to voting against the death penalty under any circumstances or where their views on capital punishment would
Appellant‘s argument that he had an insufficient number of peremptory challenges is premised on the assumption that he unnecessarily used four of them to excuse the above-mentioned veniremen. At oral argument appellant‘s counsel conceded that there is nothing in the record to show that if appellant had been given more he would have used them. Since we find that the trial judge did not abuse his discretion in declining to excuse for cause the four veniremen, there is no basis for holding that appellant had an insufficient number of peremptory challenges. We therefore hold that appellant‘s right to a fair trial by an impartial jury under the
Appellant‘s next point on appeal is that the court erred in entering judgments and sentences for the three counts of kidnapping. Appellant argues that Florida‘s kidnapping statute does not apply where the victim is moved an insignificant distance in a short period of time. See Friend v. State, 385 So.2d 696 (Fla. 1st DCA 1980); Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980). He contends that the emerging trend is to narrowly construe kidnapping statutes so that they do not apply where the kidnapping is inherent in or “merely incidental” to the commission of another crime. See, e.g., People v. Daniels, 71 Cal.2d 1119, 80 Cal. Rptr. 897, 459 P.2d 225 (1969); State v. Buggs, 219 Kan. 203, 547 P.2d 720 (1976); People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973); People v. Levy, 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842, cert. denied, 381 U.S. 938, 85 S.Ct. 1770, 14 L.Ed.2d 701 (1965); State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979).
We recently analyzed these and other cases and concluded that “the ‘merely incidental’ rule does not apply in situations where the purpose in confining or moving another person is to use that person as a hostage.” Mobley v. State, 409 So.2d 1031, 1036 (Fla. 1982) (footnote omitted). In Mobley we affirmed the kidnapping convictions of three prisoners who held two guards and an attorney as hostages during an attempted escape. We noted that although the prisoners “were not charged with confining the victims with the intent of using them as hostages, evidence that they did use them as hostages is relevant and sufficient proof that the kidnappings were not incidental to the attempted escape.” Id. at 1037. Unlike in Mobley, appellant in this case was charged under that portion of the statute that defines kidnapping as the unlawful confining of another person against his will with the intent of holding him as a shield or hostage. See
Next appellant asserts that there was insufficient proof of premeditation to support his convictions for first-degree murder and attempted first-degree murder. This assertion is belied by appellant‘s statements to the three hostages that he was going to shoot them after shooting the police. The record shows that he did indeed begin shooting after the police had announced their presence. We thus find there was sufficient evidence of premeditation to support these convictions.
We do not find any error. The aggravating circumstances which the judge instructed the jury not to consider were whether appellant was under sentence of imprisonment and whether he had previously been convicted of a felony involving the use or threat of violence to another person. Unlike some of the other aggravating circumstances which require some finding be made as to a defendant‘s subjective intentions for committing a murder, these two aggravating circumstances depend upon factors which can be objectively determined. Since at the time of the sentencing hearing appellant had not been convicted of a prior felony nor was he under sentence of imprisonment, the trial judge correctly concluded that these two aggravating circumstances did not exist as a matter of law at the time the jury was to consider its recommendation. More important, the judge instructed the jury that an aggravating circumstance had to be established beyond a reasonable doubt and that if any aggravating circumstances were found to exist they would have to be weighed against the mitigating circumstances. These additional instructions dispensed with any possible implication that the judge felt all the remaining aggravating circumstances were applicable.
After the jury returned with its advisory recommendation of a death sentence, the trial judge issued his written findings of fact. The judge found that the aggravating circumstance in
Regarding the statutory mitigating circumstances of
Regarding possible nonstatutory mitigating circumstances, the judge found that
Even though the trial judge did not instruct the jury on the aggravating circumstance of whether appellant had previously been convicted of a felony involving the threat or use of violence to another person, he himself found it to be an aggravating circumstance. He did so on the basis of the contemporaneous convictions for kidnapping and attempted first-degree murder. This was proper. See Ruffin v. State, 397 So.2d 277 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981); Lucas v. State, 376 So.2d 1149 (Fla. 1979).
The judge also properly found that appellant knowingly created a great risk of death to many persons. See Lucas v. State; Raulerson v. State, 358 So.2d 826 (Fla.), cert. denied, 439 U.S. 959, 99 S.Ct. 364, 58 L.Ed.2d 352 (1978). The murder occurred during a raging gun battle with the police with three hostages present.
There is no question that the murder was committed while appellant was engaged in the commission of a felony, in this case kidnapping, and that it was committed for the purpose of avoiding or preventing a lawful arrest. The finding that the murder was committed for pecuniary gain is supported by the trial court‘s finding that appellant had planned a bank robbery for several months and had proceeded as far as the hostage stage before he was interrupted. The fact that the robbery was never completed is irrelevant so long as there was an attempt. See Mikenas v. State, 367 So.2d 606 (Fla. 1978).
Appellant next challenges the judge‘s refusal to find any of the statutory mitigating factors present. He claims that he had no significant history of prior criminal activity as an adult. However, he had attempted an armed robbery and a bombing of a school when he was minor. Since the purpose of this mitigating factor is to help ascertain a defendant‘s character, we do not believe that a trial judge should be limited to looking at a defendant‘s adult criminal activity. A defendant‘s juvenile record can be just as relevant in determining the defendant‘s character. Because appellant‘s prior criminal activity as a minor was significant, the judge properly found this not to be a mitigating factor.
Appellant also argues that his emotional condition should have been considered as a mitigating circumstance under subsections
Appellant argues that the court erred in not finding his age, twenty years, to be a mitigating circumstance. “There is no per se rule which pinpoints a particular age as an automatic factor in mitigation.” Peek v. State, 395 So.2d 492, 498 (Fla.), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981). In this case the record supports the judge‘s decision not to consider appellant‘s age as a mitigating circumstance.
Finally appellant argues that his right against double jeopardy was violated by the judge‘s imposing separate sentences for the three counts of kidnapping. He relies on State v. Pinder, 375 So.2d 836 (Fla. 1979), where this Court held that in a felony-murder prosecution, the double jeopardy clause bars separate conviction and
We therefore affirm appellant‘s convictions, the separate sentences for kidnapping, and the sentence of death.
It is so ordered.
ALDERMAN, C.J., and ADKINS, BOYD and EHRLICH, JJ., concur.
McDONALD, J., concurs in part and dissents in part with an opinion, in which OVERTON, J., concurs.
McDONALD, Justice, concurring in part/dissenting in part.
I concur in the judgment of conviction but am unable to do so in the sentence of death. The trial judge erred in finding that Fitzpatrick‘s killing of the deputy sheriff was for pecuniary gain. While it is true that the deputy interrupted Fitzpatrick‘s grandiose and bizarre plan to rob a bank, that factor does not convert his slaying into one for pecuniary gain, directly or indirectly. No robbery was in progress when this took place.
I also feel that the trial judge erred when he failed to find both statutory and nonstatutory mitigating circumstances. The evidence was not in dispute on the character and background of Fitzpatrick. It clearly demonstrated a strong personality disorder. His juvenile record reflected a continuing inability to adapt to living in conformity with rules. He thought himself a “genius” and was constantly “inventing” things and seeking patents on them, only to find them constantly rejected. This dull normal black boy, the eighth of thirteen children, was himself rejected by his mother. As stated by the psychologist, “his thinking was indeed impaired and that impairment, according to a degree, was relatively severe, not so severe that he did not understand the consequences of his actions, but severe enough that in my opinion they played a part in his acting very impulsively without proper forethought and setting himself up again for failure and punishment.” The testimony is replete with episodes clearly indicating that he suffered from stress and acted under compulsion and with gross impaired thinking. As a juvenile he had been placed in a mental hospital and had attempted suicide.
Fitzpatrick is dangerous. In all likelihood he should never be on the streets again. Nevertheless, I do think there are mitigating circumstances in his case, and that, together with an improperly found aggravating circumstance dictates a remand for reconsideration of the sentence.
OVERTON, J., concurs.