Gamble v. StateGamble v. State
Guy R. Gamble appeals his sentence of death for the first-degree murder of Helmut Kuehl. We have jurisdiction.
The jury found Gamble guilty of conspiracy to commit armed robbery, armed robbery, and murder in the first degree and recommended the death sentence by a ten-to-two vote. The trial court found in aggravation that the murder was cold, calculated, and premeditated and committеd for pecuniary gain. Gamble‘s age (20) was a statutory mitigating factor. In non-statutory mitigation, the court gave substantial weight to Gamble‘s abused and neglected childhood and severe emotional problems; and some weight to his drug and alcohol use, remorsefulness and voluntary confessions, and Love‘s life sentence.2 The court gave little weight to his status as a single parent, his family‘s testimony, and a dеsire for rehabilitation. Based upon its findings, the trial court sentenced Gamble to death. Gamble appeals this sentence and raises the following issues: (1) the trial court erroneously found that the сrime was cold, calculated, and premeditated; (2) his death sentence is disproportionate, excessive, inappropriate, and imposed upon him cruel and unusual punishment; (3) the trial court erred in denying his special requested penalty phase jury instructions; and (4) the death penalty is unconstitutional. The State‘s cross-appeal asserts that the trial court erred in prohibiting thе State from introducing in the penalty phase: (1) victim-impact evidence; (2) Donna Yenger‘s testimony;3 and (3) redacted portions of Gamble‘s police statement. Issues raised in the State‘s cross-appeal are rendered moot by our affirmance of Gamble‘s death sentence.
Gamble‘s first issue is divided into two separate challenges. The first challenge asserts that the cold, calculated, and premeditated aggravating factor is inapplicable. We disagree. This aggravating factor is properly found when
the killing was the product of cool and calm refleсtion and not an act prompted by emotional frenzy, panic, or a fit of rage (cold), and that the defendant had a careful plan or prearranged design to commit murder before the fаtal incident (calculated), and that the defendant exhibited heightened premeditation (premeditated), and that the defendant had no pretense of moral or legal justification.
Jackson v. State, 648 So.2d 85, 89 (Fla. 1994) (citations omittеd). A chronological review of the facts indicates that approximately six days before the murder Gamble told his girlfriend that he was going to “take-out” Kuehl. The day before the murder he instructed his girlfriend tо pack their belongings because they would be leaving town. He also had her sit at a table pretending to write a rent receipt, whereupon he would sneak up behind her and practicе choking her with a cord. The day of the murder Gamble picked up his final paycheck and returned home, where he and Love gathered money to use as a guise for rent payment. They apрroached Kuehl, who was sitting in his garage, engaged him in conversation, and asked for a rent receipt. When Kuehl went to his apartment to obtain the receipt, Love searched the garage for a weapon, found a claw hammer,
The second challenge asserts that the jury recommendation of death is unreliable due to inadequate jury instruction on the cold, calculated, and premeditated fаctor. The instruction stated:
The crime for which the defendant is to be sentenced was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification.
In Jackson, this Court found that the above instruction suffered from a “constitutional infirmity” but, in so doing we stated that “[c]laims that the instruction on the cold, calculated, and premeditated aggravator is unсonstitutionally vague are procedurally barred unless a specific objection is made at trial and pursued on appeal.” 648 So.2d at 90. Gamble asserts that his objection was essentially an objеction to the trial court‘s instruction on cold, calculated and premeditated. We disagree. The record clearly shows that Gamble‘s objection was premised on his belief that the evidence was insufficient to prove premeditation. Since Gamble failed to raise the objection he now asserts, we find that this issue is procedurally barred.
Gamble asserts that his sentence of dеath is disproportionate since his murdering of Kuehl is not the most aggravated and unmitigated of crimes. We find this assertion meritless. In Dougan v. State, 595 So.2d 1, 4 (Fla.), cert. denied, ___ U.S. ___, 113 S.Ct. 383, 121 L.Ed.2d 293 (1992) we stated that:
Under subsection 921.141(2) death may be the appropriate recommendаtion if, and only if, at least one statutory aggravating factor is established. After an aggravator has been established, any mitigating circumstances established by the evidence must be weighed against the aggravator(s). Florida‘s death penalty statute, and the instructions and recommendation forms based on it, set out a clear and objective standard for channeling the jury‘s discretion.
The trial court fоund two aggravating factors (cold, calculated, and premeditated and pecuniary gain), one statutory mitigating factor (age), and several non-statutory mitigating factors, most of which were given little weight. One of the non-statutory mitigating factors given “some” weight was Love‘s sentence of life. Gamble asserts that his jury would have also recommended a life sentence if it had been informed of Lоve‘s sentence. Gamble proffers that this factor singlehandedly requires a sentence reduction. We disagree. Love‘s sentence was based on a guilty plea entered after Gamble‘s penalty phase proceedings. Clearly the Gamble trial judge was not required to postpone Gamble‘s sentencing and await Love‘s plea and sentence. We refuse to speculate аs to what may have occurred had the Gamble jury been made aware of the posture of Love‘s case. We find no error relative to the issue. We have also reviewed the sentencing order and find that the trial court properly considered and weighed the aggravating and mitigating factors. See Ferrell v. State, 653 So.2d 367 (Fla. 1995). We find Gamble‘s sentence of death proportionate in light of our previous opinions, our rеview of the sentencing order, and the instant facts.
We also find no merit in Gamble‘s final issue that Florida‘s death penalty statute,
Based on the foregoing, we affirm Gamble‘s convictions for first-degree murder and other crimes and his sentеnce of death.
It is so ordered.
GRIMES, C.J., and OVERTON, KOGAN, HARDING, WELLS and ANSTEAD, JJ., concur.