Sireci v. StateSireci v. State
Robert A. Butterworth, Atty. Gen. and Barbara C. Davis, Asst. Atty. Gen., Daytona Beach, for appellee.
PER CURIAM.
Henry Sireci appeals the sentence of death imposed upon him for the 1976 murder of Howard Poteet. We have jurisdiction.
We detailed the facts of the murder in Sireci v. State, 399 So. 2d 964 (Fla. 1981), cert. denied, 456 U.S. 984, 102 S. Ct. 2257, 72 L. Ed. 2d 862 (1982), in which we affirmed Sireci‘s conviction and original death sentence. Sireci went to Poteet‘s used car lot armed with a wrench and knife. The defense argued that Sireci intended to take car keys so that he could steal an automobile later. According to the State, Sireci‘s intent was to rob Poteet at that time. While the two were in the victim‘s office, Sireci hit the victim with the wrench and stabbed him numerous times during the course of a struggle. Poteet sustained approximately fifty-five stab wounds and numerous lacerations and abrasions. His neck was slit. Sireci took the victim‘s wallet.
This Court affirmed the denial of Sireci‘s first 3.850 motion. Sireci v. State, 469 So. 2d 119 (Fla. 1985), cert. denied, 478 U.S. 1010, 106 S. Ct. 3308, 92 L. Ed. 2d 721 (1986). The trial court held an evidentiary hearing on Sireci‘s second 3.850 motion and ultimately ordered a new sentencing hearing on grounds that two court-appointed psychiatrists conducted incompetent evaluations at the time of the original trial. Upon resentencing, the jury recommended the death penalty by a vote of eleven to one
Sireci raises six claims of error in this appeal. First, he alleges that the trial judge abused his discretion in refusing to waive the jury sentencing recommendation. Prior to the resentencing proceeding, Sireci submitted a waiver of the jury sentencing recommendation to which the State objected. The trial court refused to grant the waiver. Sireci argues on appeal that the waiver should have been granted because, given the time lapse between the conviction and the resentencing proceeding, the jury would necessarily know of and be prejudiced by the prior death sentence.
The law is clear that a trial judge “upon a finding of a voluntary and intelligent waiver, may in his or her discretion either require an advisory jury recommendation, or may proceed to sentence the defendant without such advisory jury recommendation.” State v. Carr, 336 So. 2d 358, 359 (Fla. 1976). See also Palmes v. State, 397 So. 2d 648, 656 (Fla.), cert. denied, 454 U.S. 882, 102 S. Ct. 369, 70 L. Ed. 2d 195 (1981). Regardless of the jury‘s recommendation, the trial judge must conduct an independent review of the evidence and make his or her own findings regarding aggravating and mitigating factors. Spaziano v. Florida, 468 U.S. 447, 466, 104 S. Ct. 3154, 3155-56, 82 L. Ed. 2d 340 (1984). The trial judge here noted that if he found the jury was influenced by improper considerations, he had “the ability and the duty to lessen the reliance upon the jury‘s verdict.” Even if the jury may have surmised that the defendant had been previously sentenced to death, we find no abuse of discretion in the trial court‘s refusal to waive an advisory jury sentencing recommendation.
While admitting that under the circumstances of this case the jury could not help but perceive that Sireci had been on death row, Sireci also claims that the trial court erred in refusing to grant a mistrial after the prosecutor made reference to this fact. The trial court had issued a pretrial order prohibiting the State from revealing that Sireci had been sentenced to death previously for the Poteet murder. Dr. Lewis, one of Sireci‘s mental health experts, had conducted a study of death row inmates, including Sireci. The following interchange occurred during the State‘s cross-examination of Dr. Lewis:
Q. [Prosecutor]: Maybe it‘s not a paranoid ideation, is that correct?
A. [Dr. Lewis]: Maybe it‘s not, but I would put my reputation on the fact that it is. It is — I mean it‘s demonstrated. It‘s one of the research criteria.
Q. It‘s what you expected to find of this man on death row, isn‘t that correct?
The trial court denied defense counsel‘s motion for mistrial but cautioned the prosecutor to avoid reference to Sireci‘s death row status.
Determination of whether substantial justice warrants granting a mistrial is within the discretion of the trial judge. Dufour v. State, 495 So. 2d 154, 163 (Fla. 1986), cert. denied, 479 U.S. 1101, 107 S. Ct. 1332, 94 L. Ed. 2d 183 (1987); Marek v. State, 492 So. 2d 1055, 1057 (Fla. 1986). The prosecutor‘s remark violated the pretrial order. Nevertheless, prosecutorial improprieties must be viewed in the context of the record as a whole to determine if a new trial is warranted. State v. Murray, 443 So. 2d 955, 956 (Fla. 1984). Although a prior sentence should not play a role in resentencing proceedings, we have found no error where the record reflected that the impact of merely mentioning a prior death sentence was negligible. Teffeteller v. State, 495 So. 2d 744 (Fla. 1986).
The prosecutor‘s reference to the prior death sentence was minimal. He did not indicate that a prior jury had recommended
Based upon our review of the record, we find no abuse of discretion in the trial court‘s refusal to grant a mistrial. The prosecutor‘s reference to the prior death sentence did not prejudice the defendant or play a significant role in the resentencing proceeding so as to warrant a mistrial. Teffeteller, 495 So. 2d at 747.
Sireci also claims reversible error in the trial court‘s refusal to poll the jurors concerning their use of the knowledge of the prior death sentence. We note only that the Evidence Code prohibits judicial inquiry into the emotions, mental processes, or mistaken beliefs of jurors.
Next, Sireci claims that the trial court erred in failing to find the four statutory mitigating factors asserted by the defense. The defense attempted to establish that Sireci was under the influence of extreme mental or emotional disturbance; that he acted under extreme duress or the substantial domination of another; that he lacked the capacity to appreciate the criminality of his conduct or that his capacity to conform his conduct to the requirements of law was substantially impaired; and that the crime was affected by his age at the time of its commission. The trial court concluded that no statutory mitigating factors were established but found the existence of nonstatutory mitigating evidence.
The decision as to whether a particular mitigating circumstance is established lies with the judge. Reversal is not warranted simply because an appellant draws a different conclusion. Stano v. State, 460 So. 2d 890, 894 (Fla. 1984), cert. denied, 471 U.S. 1111, 105 S. Ct. 2347, 85 L. Ed. 2d 863 (1985). Further, it is the trial court‘s duty to resolve conflicts in the evidence, and that determination should be final if supported by competent, substantial evidence. Id.
The evidence was clearly insufficient to establish that Sireci acted under extreme duress or the substantial domination of another or that his age of twenty-seven played any part in the murder. There was conflicting testimony on the remaining statutory mitigators. Mental health experts agreed that Sireci suffered from brain damage which probably occurred when he was involved in an automobile accident at the age of sixteen. However, the experts disagreed on the extent and effect of that brain damage. Dr. Lewis testified that Sireci was severely brain injured, functionally retarded, and psychotic and that he could not appreciate the magnitude or consequences of his acts. Dr. Pincus testified that he found very strong evidence of organic brain disease which constrained Sireci‘s free will. However, State expert witness Dr. Upson opined that Sireci‘s brain damage had no significant connection to the murder, that Sireci understood the consequences of his behavior, and that he could conform his
Sireci also presented substantial evidence regarding his difficult childhood. Testimony indicated that he was physically and emotionally abused by his father and sexually abused by his mother. The trial judge found nonstatutory mitigation as indicated in the sentencing order:
In spite of his bleak childhood the Defendant was a hard and steady worker. He manifested a concern for others and was unselfish with his friends and family. He has done well in prison. He has brain damage and has suffered abuse as a child.
The Defendant‘s brain damage and history of abuse resulting in his having at least two factors common in aggressive violent persons does not establish an uncontrolled propensity for violence nor can it be found to be the cause of the heinous nature of the offense but does cause this court to give lesser weight to that aggravating circumstance.
We find competent, substantial evidence to support the trial court‘s findings regarding the mitigating evidence.
Sireci‘s next claim is that cumulative errors rendered the jury recommendation defective. Relying upon Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987), and South Carolina v. Gathers, 490 U.S. 805, 109 S. Ct. 2207, 104 L. Ed. 2d 876 (1989),2 Sireci argues that the State improperly introduced victim-impact evidence through the victim‘s wife and son. In Booth and Gathers, the United States Supreme Court held that a capital sentencing jury may not consider evidence or argument relating to the personal characteristics of the victim and the emotional impact of the crime on the victim‘s family. We find nothing in the record that constitutes the type of evidence or argument prohibited by those cases. The victim‘s wife testified that Poteet was carrying his wallet when he was murdered. This was relevant to establish that the murder was committed during a robbery. The victim‘s son, who worked at the car lot where the murder occurred, testified about the operating procedures of the business, his father‘s practices in closing the lot at night, the location of the money, and the location of the car keys, all of which were relevant to the circumstances of the crime. Further, the trial judge noted on the record that neither the wife nor son displayed any emotion during their testimony.
We reject Sireci‘s complaint that it was improper to allow the wife and son to remain in the courtroom after their testimony.
Sireci also claims error in the testimony of State witness Barbara Perkins. Perkins, with whom Sireci was living at the time of the murder, testified that after Sireci read about the murder in the newspaper, “he seemed rather proud of it.” Sireci correctly argues that this constitutes impermissible testimony on lack of remorse. See Robinson v. State, 520 So. 2d 1, 6 (Fla. 1988). After reviewing the record, we find this comment to be harmless beyond a reasonable doubt. Valle v. State, 581 So. 2d 40, 46 (Fla. 1991).
Sireci‘s claim that
We affirm the imposition of the death penalty.
It is so ordered.
SHAW, C.J., and OVERTON, McDONALD, BARKETT, GRIMES, KOGAN and HARDING, JJ., concur.