Swan v. StateSwan v. State
Robert L. Shevin, Atty. Gen., and Gerry B. Rose, Asst. Atty. Gen., for appellee.
In this cause we are reviewing Appellant‘s conviction of murder in the first degree and a sentence of death imposed by the Circuit Court of Dade County, as required both by the Florida Constitution1 and by statute.2
The facts of the case are as follows.
Prior to leaving for Europe the occupants of a Dade County home employed the victim, one Honey Reh, to reside in and maintain the house during their absence. The victim was last seen alive and in her usual physical and mental health by a friend during the evening of May 29, 1973, when a neighbor left her alone in the home for the night. About 9:30 a.m. the following morning two neighbors found Honey Reh in a semi-conscious condition on the floor of the home, badly bruised and beaten. Her hands, neck and left foot were tied so that any efforts she might have made to free herself could have choked her to death. She was tied with strips of cloth from a bedspread, and her mouth was gagged with a silk stocking. She never full regained consciousness and died in a hospital on June 6, 1973.
Both the testimony of a deputy medical examiner from his autopsy and the testimony of a treating physician, along with hospital records, gave sufficient proof for the jury to find that death resulted from the severe beating administered by Appellant and his co-defendant, who received a life sentence.
The purpose of the crime was robbery or burglary. A television set, money and other items of value were taken from the premises. Because the death occurred in connection with robbery or burglary the prosecution of Appellant was under the felony murder provision of Florida Statutes.3
The defense tried in vain to show death was caused by prior existing physical infirmities and not by the attack made by Appellant and his partner in crime. He tried indirectly to show that if Honey Reh had been in good physical condition she whould not have died from the trauma caused by the beating, binding, and gagging. The jury and court properly ignored this position as defense evidence and argument. Criminals take their victims as they find them. Appellant can not be excused from guilt and punishment because his victim was weak and could not survive the torture he administered.4 If the jury could have concluded reasonably that the wounds resulting from the beating administered by the Appellant and his co-defendant caused or materially contributed to the victim‘s death, it was proper to find Appellant guilty.5
Appellant further complains that pictures taken of the victim at the scene of the crime and at the medical examiner‘s office after death should not have been admitted as evidence. He argues that they inflamed the passions, feelings and prejudices of the jury. This Court has examined the pictures and, indeed, they show gruesome scenes, especially while the victim was lying on the floor after the attack. This Court has previously held on several occasions, however, that gruesome and gory photographs may and should be admitted if they properly depict the factual conditions relating to the crime and if they are relevant in that they aid the court and jury in finding the truth.6 Photographs serving only to create passion should be rejected.7
Appellant also attacked the constitutionality of Florida‘s capital punishment statutes.8 In State v. Dixon,9 Chief Justice Adkins wrote a thorough opinion adopted by the majority of this Court holding these statutes valid and constitutional; no purpose is served here in reciting the conclusions reached therein.
All other matters raised have been carefully considered, and we find only one part of the court‘s finding and judgment which should be modified.
As provided by statute, after its verdict of guilty the jury was convened to hear evidence of aggravating10 and
The Appellant contends that the Legislature did not intend for such evidence as the above or for presentence investigation reports (P.S.I.) to be considered by the trial judge in determining the sentence to be imposed. These contentions are without merit.
“... evidence may be presented as to any matters that the court deems relevant to sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in sub sections (6) and (7). Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements.”
Fla. Stat. § 921.141(1) . (Emphasis added)
As can be seen, the statute expressly permits the use of such evidence. Similarly, this Court expressly approved of the use of P.S.I. reports in such instances in Songer v. State, 322 So.2d 481 (Fla. opinion filed September 3, 1975).
P.S.I. reports are provided for in
In imposing the death sentence sub judice, the trial court found that the aggravating circumstances outweighed those mitigating circumstances and that the crime was outrageously wicked, vile, atrocious, cruel and heinous. While we recognize that the statute leaves the sentencing to the trial court, there is a specific duty imposed on this Court to consider the record in order to assure that the punishment accorded a criminal will meet the standards prescribed in Furman v. Georgia.12 Having considered the total record, we are of the opinion that there were insufficient aggravating circumstances to justify the imposition of the death penalty. We think the Court should have followed the jury‘s recommendation for punishment.
For the above reasons we affirm the conviction, however we remand this cause to the trial court for reduction of the death sentence to life imprisonment without eligibility for parole for twenty-five years.
It is so ordered.
ADKINS, C.J., OVERTON, J., and DuVAL and HARTWELL, Circuit Judges, concur.
ROBERTS, J., concurs in part and dissents in part:
“I would affirm the trial court as to Judgment of Guilty and sentence.”