Rivera v. StateRivera v. State
Robert A. Butterworth, Atty. Gen. and Fariba Komeily, Asst. Atty. Gen., Miami, for appellee.
PER CURIAM.
Samuel Rivera appeals his conviction for first-degree murder and sentence of death. We have jurisdiction pursuant to
On November 6, 1986, Samuel Rivera and his brother were en route to the Palm Springs Shopping Mall in Hialeah by bus when Rivera‘s brother purchased a semiautomatic pistol contained in a blue duffel bag. After their arrival, the two entered a Dollar General Store adjacent to the mall. While his brother watched the store employees in the main part of the store, Rivera went into a storage area. After Rivera ransacked the storage area and pried open an unused cash register, both men left the store. Acting on information supplied by suspicious customers, two policemen soon located Rivera and his brother in the mall‘s parking lot. When the officers began to question the men, Rivera grabbed the blue
Immediately after the shooting, Rivera ran out of the mall and commandeered a car by forcing a woman, her young child, and her elderly mother out of their automobile at gunpoint. Rivera then sped off in the car, driving around rush-hour traffic onto the sidewalk, until he eventually crashed into a parked car. He then ran on foot to a house and hid under a table on the back patio where he was eventually located by the police K-9 unit. After a struggle with the dog, during which Rivera fell and hit his head, he was arrested. Rivera later claimed that he shot Miyares in self defense after the officer hit him in the head with the gun. However, eyewitnesses testified that they never saw Miyares hit Rivera with anything and that Rivera did not have any blood on him when he ran from the scene of the shooting. Additionally, no blood was found inside the stolen car which had a white leather interior.
The jury found Rivera guilty of first-degree murder and recommended the death penalty by a seven-to-five vote. Finding six aggravating circumstances and no mitigating circumstances, the trial judge sentenced Rivera to death.3
Rivera does not attack the propriety of the guilt phase of his trial. However, he raises six issues concerning the penalty phase, only three of which merit our discussion.4 The first concerns “whether the trial court erred in limiting the consideration of mitigating circumstances to factors enumerated under
Rivera also argues that the evidence did not support the finding that the killing was committed in a cold, calculated, and premeditated manner. In Rogers v. State, 511 So. 2d 526, 533 (Fla. 1987), cert. denied, 484 U.S. 1020, 108 S. Ct. 733, 98 L. Ed. 2d 681 (1988), we defined “calculation” as “a careful plan or prearranged design.” The evidence in this case indicates that this killing was of spontaneous design. Officer Miyares was shot during a struggle after he chased and cornered Rivera in the main part of the mall. Had Rivera intended to kill the officer, he could have easily done so from the start when he had in his possession the semiautomatic weapon that he snatched from his brother prior to the chase. While there was no moral or legal justification for the killing, we are not persuaded that the facts of this crime rise to the level of heightened premeditation necessary to sustain this finding. Therefore, we reverse the trial court‘s finding that the
Rivera also challenges the finding that the murder was especially heinous, atrocious, and cruel. In State v. Dixon, 283 So. 2d 1, 9 (Fla. 1973), cert. denied, 416 U.S. 943, 94 S. Ct. 1950, 40 L. Ed. 2d 295 (1974), this Court stated:
It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.
The facts of the instant case are similar to those of Brown v. State, 526 So. 2d 903 (Fla.), cert. denied, 488 U.S. 944, 109 S. Ct. 371, 102 L. Ed. 2d 361 (1988), which involved a police officer who was shot two times in the head after receiving a gunshot to the arm. We held in that case that the murder was not heinous, atrocious, and cruel because “an instantaneous or near-instantaneous death by gunfire ordinarily” is not a heinous killing. Id. at 907. Here, Miyares was shot a total of three times with one wound to his arm and two wounds to his chest. Witnesses testified that all three shots were fired within approximately sixteen seconds of each other. While Miyares did linger for a few moments after the fatal shots were fired, this murder was not accompanied by additional acts setting it apart from the norm of capital felonies and the evidence did not prove that it was committed so as to cause the victim unnecessary and prolonged suffering. Consequently, we reject the trial court‘s finding that this murder was especially heinous, atrocious, and cruel.
However, we are convinced that even without these two aggravating circumstances, there was no reasonable likelihood of a life sentence being imposed because of the existence of four other valid aggravating circumstances and no mitigating circumstances. See Rogers v. State, 511 So. 2d 526 (Fla. 1987), cert. denied, 484 U.S. 1020, 108 S. Ct. 733, 98 L. Ed. 2d 681 (1988). Therefore, we affirm Rivera‘s conviction for first-degree murder and sentence of death, as well as his convictions and sentences for the additional crimes committed in conjunction with this murder.
It is so ordered.
EHRLICH, C.J., and OVERTON, McDONALD, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur.