Cochran v. State

Guy Reginald Cochran appeals his conviction of first-degree murder and sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the conviction but remand for the imposition of a life sentence in accordance with the jury’s recommendation.

On February 7, 1985, the body of Carol Harris was found in a field near Route 301 in Hillsborough County. A day or so later a police officer spotted Harris’ BMW and attempted to stop it. The vehicle’s occupants fled on foot and the car was impounded. Fingerprints lifted from the automobile were identified as Cochran’s and led to his arrest and confession.

At trial, the state introduced Cochran’s taped confession in which he asserted that the shooting was not deliberate and he never intended to hurt Harris. Cochran said he approached Harris with a gun, intending to rob her, as she was getting into her car in the Ybor City section of Tampa, Florida. When she screamed, he forced her into her ear and drove off. He said he was driving and holding the gun in one hand when Harris jumped at him and tried to stab him. During the struggle, as he tried to steer the car, the gun went off. Cochran also confessed that Harris asked him to take her to a hospital but he got scared and left her on Route 301. He said he later went back to help her but could not find his way to where he had left her.

The medical examiner testified that Harris had been shot once at close range and that the wound track, through the abdomen from left to right horizontally and slightly backward, was consistent with a scenario of the shooter seated on the left side of the victim in an automobile. He also said the victim could have iost consciousness within moments and lived for only a few minutes or could have remained alive and conscious with the wound for as much as an hour.

Police detectives testified that drag marks and the position of the victim’s body and clothing indicated the body had been dragged approximately seventeen feet from the highway to where it eventually was found. The police also testified that a fork, but no knife, had been found in the vehicle.

In addition to the medical examiner and crime scene investigators, the state introduced the testimony of Darrell Shorter and Willie Long, who were friends of Cochran. Shorter, who admitted he was in the BMW when the Tampa police car tried to stop it, testified that he saw a sharp instrument that looked like a letter opener on the dashboard of the car. He also testified that “[Cochran] told me that he got the ear from a bar on 7th Avenue and that he took the girl somewhere and shot her and that is how he got the car.” Long said that when he asked Cochran about the car, Cochran replied that “he got it from a lady and she tried to stab him and that he had to shoot her.”

At the penalty phase, the state offered no additional evidence. The defense presented testimony from Dr. Arturo Gonzalez, a psychiatrist; Caroline Barnard, the supervisor of school psychiatric- services in the Hillsborough County School District; Susan Watson, Cochran’s seventh grade teacher; Dennis Ñamen, Cochran’s high school teacher; several members of Cochran’s family; and Detective Kendall Glenn, who initially questioned Cochran regarding the homicide.

The jury recommended life imprisonment. The trial judge, however, concluded that the aggravating circumstances substantially outweighed the mitigating circumstances and imposed the death penalty. The judge stated that Cochran’s prior conviction of another capital felony, which had been unknown to the jury, was “substantially the basis” for the jury override. •

Guilt Phase

Appellant challenges his conviction of first-degree murder on the ground that there was insufficient evidence to prove premeditation. He argues that the state’s circumstantial evidence on the element of premeditation was not legally sufficient because it did not exclude the hypothesis of an unpremeditated shooting. Assuming ar-guendo that the jury’s verdict was limited to premeditated murder, we find the evidence in this case sufficient to support such a verdict.

Appellant correctly points out that in order to prove a fact by circumstantial evidence, the evidence must be inconsistent with any reasonable hypothesis of innocence. McArthur v. State, 351 So.2d 972, 976 n. 12 (Fla.1977). Where the element of premeditation is sought to be established by circumstantial evidence, the evidence relied upon by the state must be inconsistent with every other reasonable inference. Wilson v. State, 493 So.2d 1019 (Fla. 1986); Hall v. State, 403 So.2d 1321 (Fla.1981).

But the question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, the verdict will not be reversed on appeal. Heiney v. State, 447 So.2d 210, 212 (Fla.), cert. denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984); Williams v. State, 437 So.2d 133 (Fla.1983), cert. denied, 466 U.S. 909, 104 S.Ct. 1690, 80 L.Ed.2d 164 (1984); Rose v. State, 425 So.2d 521 (Fla.1982), cert. denied, 461 U.S. 909, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983). The circumstantial evidence standard does not require the jury to believe the defense version of facts on which the state has produced conflicting evidence, and the state, as appellee, is entitled to a view of any conflicting evidence in the light most favorable to the jury’s verdict. Buenoano v. State, 478 So.2d 387 (Fla. 1st DCA 1985), review dismissed, 504 So.2d 762 (Fla.1987).

With these principles in mind, we find the evidence sufficient to support a verdict of premeditated murder. Cochran claimed that the shooting was accidental, that he “let [the victim] out of the car” after he panicked, and later attempted to find her to take her to the hospital. The evidence showed, however, that the victim’s body was dragged seventeen feet from the roadway. Given this conflict in the physical evidence, the jury properly could have concluded that appellant’s version of events was untruthful. We find sufficient competent evidence to support a finding of premeditation and accept the jury’s evaluation of that evidence. See Songer v. State, 322 So.2d 481 (Fla.1975) (rejecting contention that a defendant’s interpretation of circumstantial evidence should be accepted completely unless it is specifically contradicted), vacated on other grounds, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977).

Penalty Phase

Appellant’s first argument, that the trial court erred in refusing to allow him to present evidence that the death penalty is imposed in a racially discriminatory manner, has been foreclosed by the recent United States Supreme Court decision in McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).

Appellant next asserts that the trial court erred in considering letters from the victim’s next-of-kin. Because of our resolution of the next two points, we find it unnecessary to address this claim of error.

In his fourth point, appellant argues that the' trial court erred in finding that this murder was especially heinous, atrocious, or cruel. In support of this finding, the trial court stated:

(h) The capital felony was especially heinnous [sic], atrocious, and cruel. The defendant exhibited a lack of remorse by taking the wounded victim to a remote area, probably still alive, rather than taking some action which could result in her getting medical attention for the injury, thus reflecting a cold and calculating conscienceless act.

We agree with appellant that this finding does not comport with prior decisions of this Court defining the parameters of the heinous, atrocious, or cruel aggravating factor. Lack of remorse is clearly improper as an aggravating factor or enhancement of an aggravating factor. Pope v. State, 441 So.2d 1073 (Fla.1983). Failure to get medical attention for the victim does not make a murder especially heinous, atrocious, or cruel. Teffeteller v. State, 439 So.2d 840, 846 (Fla.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 754 (1984); Tedder v. State, 322 So.2d 908, 910 (Fla.1975). Nor can the defendant’s acts after the victim is unconscious support this aggravating circumstance. See Jackson v. State, 451 So.2d 458 (Fla.1984); Clark v. State, 443 So.2d 973 (Fla.1983), cert. denied, 467 U.S. 1210, 104 S.Ct. 2400, 81 L.Ed.2d 356 (1984). Our cases make clear that where, as here, death results from a single gunshot and there are no additional acts of torture or harm, this aggravating circumstance does not apply. Jackson v. State, 502 So.2d 409 (Fla.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3198, 96 L.Ed.2d 686 (1987); Fleming v. State, 374 So.2d 954 (Fla.1979).

Lastly, we address appellant’s argument that the trial court’s override of the jury’s recommendation of life does not meet the standard set out in Tedder. In Tedder, we held that in order to sustain a sentence of death following a jury recommendation of life, the facts suggesting death must be so clear and convincing that virtually no reasonable person could differ. 322 So.2d at 910.

At the sentencing hearing, in response to the prosecutor’s inquiry, the judge explained the override as follows:

MR. ATKINSON: Your honor, for the record, again, so it’s clear for appellate court purposes, does the Court also find that in the Harris case based on the totality of the aggravating circumstances that, in fact, the jury’s recommendation of life was not reasonable under the additional factors that the Court had available to it. That is, the additional conviction in the Arbelaez murder?

THE COURT: That is precisely the basis that is substantially the basis from which the Court has made its decision to override the recommendation of the jury in that case.

Under our law, it was proper for the trial court to take into consideration appellant’s previous conviction in the Arbe-laez case, even though that conviction was not presented to the jury. Spaziano v. State, 433 So.2d 508, 511 (Fla.1983), aff'd, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); Porter v. State, 429 So.2d 293 (Fla.), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983); White v. State, 403 So.2d 331 (Fla.1981), cert. denied, 463 U.S. 1229, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983). This circumstance, however, does not alter this Court’s responsibility to review the sentence under the Tedder standard. When the sentencing judge is presented with evidence not considered by the jury, the jury’s recommendation still retains great weight. Although this Court has upheld jury overrides in cases where the trial court had before it evidence in aggravation not considered by the jury, we found in each case that death was imposed consistently with Tedder. See Spaziano; Porter; White. After careful consideration, we conclude that the override in the instant case was not warranted.

The mitigating evidence in this case was extensive. The psychiatrist testified that due to a long-standing mental deficiency (IQ of 70), Cochran was likely to become emotionally disturbed under stress and substantially impaired in his ability to conform his conduct to the law.

Cochran’s former teachers testified that . he had a history of crippling emotional problems and a severe learning disability. His seventh grade teacher testified that despite his handicap, Cochran wanted to learn to read and was highly motivated in class. Dennis Ñamen, Cochran’s high school SLD (Specific Learning Disabilities) teacher, testified that Cochran’s disabilities severly limited his ability to progress in school or hold even the simplest job. Ña-men testified that in February 1985, just days before the shooting, Cochran came to him and asked for help in getting a job. Cochran agreed the military was a good idea but Ñamen was told by the military recruiter that Cochran was unqualified due to his low intelligence and learning disability.

Detective Glenn testified that Cochran said he felt “real bad” after the shooting and was confused about what to do. Detective Glenn stated that Cochran was crying throughout his statement and appeared remorseful. Detective Glenn said he believed Cochran’s statement.

Appellant also presented mitigating evidence relating to his family background and the pressure he was under to raise money to support his child. This included testimony that Cochran was deeply depressed at the time of the murder because the mother of his child had broken off the relationship and prevented him from seeing the baby.

Much of this testimony was accepted by the trial court as mitigating evidence. The trial court also properly found that appellant’s age at the time of the crime, eighteen, was a mitigating factor. See § 921.141(6)(g), Fla.Stat. (1985).

We believe the mitigating evidence is sufficient to support a life sentence. See Amazon v. State, 487 So.2d 8 (Fla.), cert. denied, 479 U.S. 914, 107 S.Ct. 314, 93 L.Ed.2d 288 (1986); Cannady v. State, 427 So.2d 723 (Fla.1983); Richardson v. State, 437 So.2d 1091 (Fla.1983). We note that while capital defendants often present testimony of family members and psychiatrists in mitigation, it is unusual to have classroom teachers and a police detective testify. A jury might give the testimony of such witnesses great weight. The facts in this case, including appellant’s prior conviction of a capital felony, are not so clear and convincing that no reasonable person could differ that death is the appropriate penalty.

We are mindful of the concerns raised by the dissent. Without question, the trial court was authorized to weigh in aggravation the fact that this defendant was convicted of a prior murder. However, this aggravating factor alone does not and cannot automatically nullify a jury’s life recommendation, as the dissent suggests. This Court has directly held to the contrary. Fead v. State, 512 So.2d 176 (Fla. 1987) (jury override improper despite prior murder conviction where mitigating evidence supported jury’s life recommendation). Both judge and jury still must weigh this aggravating factor against the available mitigating evidence.

Indeed, to suggest that death always is justified when a defendant previously has been convicted of murder is tantamount to saying that the judge need not consider the mitigating evidence at all in such instances. The United States Supreme Court consistently has overturned cases in which mitigating evidence was deliberately and directly ignored. Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Accord Woodson v. North Carolina, 428 U.S. 280, 286-87, 96 S.Ct. 2978, 2982-83, 49 L.Ed.2d 944 (1976).

Finally, we agree with the dissent that “legal precedent consists more in what courts do than in what they say.” However, in expounding upon this point to prove that Tedder has not been applied with the force suggested by its language, the dissent draws entirely from cases occurring in 1984 or earlier. This is not indicative of what the present court does, as Justice Shaw noted in his special concurrence to Grossman v. State, 525 So.2d 833, 851 (Fla.1988) (Shaw, J., specially concurring):

During 1984-85, we affirmed on direct appeal trial judge overrides in eleven of fifteen cases, seventy-three percent. By contrast, during 1986 and 1987, we have affirmed overrides in only two of eleven cases, less than twenty percent. This current reversal rate of over eighty percent is a strong indicator to judges that they should place less reliance on their independent weighing of aggravation and mitigation....

Clearly, since 1985 the Court has determined that Tedder means precisely what it says, that the judge must concur with the jury's life recommendation unless “the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ.” Tedder, 322 So.2d at 910.

Accordingly, we affirm the judgment of guilt, but vacate the sentence of death with directions that appellant be sentenced to life imprisonment.

It is so ordered.

OVERTON, McDonald and KOGAN, JJ., concur.

EHRLICH, C.J., concurs in part and dissents in part with an opinion, in which SHAW and GRIMES, JJ., concur.

BARKETT, J., concurs in part and dissents in part with an opinion.

. The verdict form listed as alternative verdicts: (a) murder in the first degree; (b) felony murder, first degree; (c) murder in the second degree; (d) murder in the third degree; (e) manslaughter; (f) not guilty. The court defined alternative (a) as a premeditated killing. Because the jury checked alternative (a), appellant argues that the verdict must be interpreted as a finding of premeditated murder. The state contends that because the jury was specifically instructed to choose only one of the six alternatives, alternative (a) should be interpreted as a finding of guilt of both premeditated and felony murder. Because we conclude there was sufficient evidence to support a finding of premeditation, we need not resolve this dispute.

. Appellant does not challenge the remaining aggravating circumstances found by the trial court: previous conviction of a capital felony, murder committed for pecuniary gain, and murder committed in the course of a kidnapping.

. The procedural posture of this case is somewhat unusual. The trial, including guilt and penalty phases, took place July 8-11, 1985. At the conclusion of the penalty phase, the trial judge announced that sentencing would be postponed pending receipt of a PSI report. Thereafter, appellant was tried and convicted of the murder of Leon Arbelaez, who was killed four days before Carol Harris was killed. On October 11, 1985, the trial judge sentenced appellant in both cases. In the Arbelaez case, the judge found two aggravating circumstances (previous conviction of capital felony, crime committed during a robbery) and the same four mitigating circumstances found in the instant case. He imposed a life sentence following a jury recommendation of death. The propriety of that sentence is not before this Court.

. In its sentencing memorandum, the trial court set out the mitigating circumstances as follows:

The capital felony was committed while the defendant was under the influence of an emotional disturbance. The defendant was borderline retarded and had difficulty in dealing with stress conditions. He was making very little headway towards completion of his high school diploma and his girl friend, the mother of his child, was putting demands on him for monies for the child’s support.

(g) The age of the defendant at the time of the crime was eighteen.

. In the Arbelaez case, Cochran pulled a gun on a drug dealer outside a bar and demanded his money. When the victim advanced on Cochran, Cochran backed up and fell over a planter. The victim grabbed Cochran and attempted to take his gun. Cochran shot the victim in the chest and fled.