Darden v. State

Pursuant to Article V, Section 3(b)(1), Florida’ Constitution, this Court takes jurisdiction over a direct appeal from a final judgment imposing the death penalty.

Carl’s Furniture Store in Lakeland, Florida was robbed on September 8, 1973. During the course of the robbery, the proprietor, Carl Turman, was shot and killed and a neighbor boy, Phillip Arnold, was wounded. Soon afterwards, the Appellant, Willie J. Darden, who was on furlough from the Division of Corrections, lost control of the borrowed automobile he was driving and smashed into a telephone pole some three miles from the site of the murder, assault and robbery. After returning to his girl friend’s house in Tampa that night, the Appellant was arrested on a traffic charge, leaving the scene of an accident. Soon thereafter, he was arrested and charged with murder, assault with intent to commit murder, armed robbery, and assault with intent to commit rape. The grand jury returned indictments charging first degree murder, robbery, and assault with intent to commit murder in the first degree.

Both before and during trial, Mr. Dar-den was identified as the guilty party by Phillip Arnold and by Mrs. Helen Turman, the decedent’s wife, who was present and assaulted during the commission of the robbery and murder. The trial jury found the defendant guilty of murder in the first degree, assault with intent to commit murder in the first degree, and robbery. After the second phase of the bifurcated trial mandated by Florida Statutes Section 921.-141, the jury recommended the imposition of the death penalty. After enumerating its findings of aggravating and mitigating circumstances as required by Section 921.-141, the trial court sentenced the Appellant to death by electrocution.

Appellant alleges eight grounds for reversal. The racial composition of the ve-nire, the exclusion of prospective jurors because of their expressed attitudes toward the death penalty, and the alleged unconstitutionality of the sentencing provisions of Florida Statutes Section 921.141 provide three of these grounds. Another is the court’s eliciting from a state witness a comment regarding other murder cases in which Darden was, at least initially, a suspect. The courtroom identifications of the defendant by Mrs. Turman and Phillip Arnold respectively, are alleged to be'tainted by impermissibly suggestive pre-trial procedures and provide two more allegations of reversible error. A further ground is the allegedly erroneous admission into evidence of a gun asserted to have been used in the holdup and murder. Appellant’s final point on appeal is that certain remarks made by assistant state attorneys during closing arguments were so prejudicial to Appellant’s cause as to require the granting of a new trial.

We have reviewed all the points raised on appeal by the Appellant and conclude that only one merits consideration for reversal of the conviction below, i. e., whether statements made by the assistant state attorneys in closing argument were so inflammatory and abusive as to have deprived the Appellant of a fair trial. The law requires a new trial only in those cases in which it is reasonably evident that the remarks might have influenced the jury to reach a more severe verdict of guilt than it would have otherwise done or in which the comment is unfair.

It should be noted that the first denunciation of the criminal who committed the acts was by Appellant’s own attorney, who made the following statement to the jury:

“I intend to just briefly summarize the evidence that has been before you. I’m going to attempt to be as objective as possible. The first witness that you saw was Mrs. Turman, who was a pathetic figure; who worked and struggled all of her life to build what little she had, the little furniture store; and a woman who was robbed, sexually assaulted, and then had her husband slaughtered before her eyes, by what would have to be a vicious animal.” (emphasis supplied)

The defense counsel was saying only that the person who committed the crimes was an animal, and he would have had the jury find that someone other than Appellant was the perpetrator of the criminal acts. Although Appellant further complains of the expression of his personal views by the Assistant State Attorney about Appellant, the defense counsel made the following statement which showed his personal reac-' tion:

“But can you get the pistol back to Mr. Turman? Can you get the pistol back to Mr. Darden? No, we can’t do that, but we got the pistol, and it’s good enough for us. It’s not good enough for me. I wouldn’t do what you’re being asked to do on that, really, I wouldn’t . . . . ” (emphasis supplied)

The record shows the following remarks were made in the State Attorney’s portion of the closing arguments:

“ . . . As far as I am concerned, and as [defense counsel] said as he identified this man, this person as an animal, this animal was on the public for one reason . . . (emphasis supplied)

* * * * * *

“ . . . I am sure that I want you to remember [defense counsel’s] opening statement, opening argument when he called this person an animal. Remember that, because I will guarantee you I will ask for the death. There is no question about it. (emphasis supplied)

“The second part of the trial I will request that you impose the death penalty. I will ask you to advise the Court to give him death. That’s the only way that I know that he is not going to get out on the public. It’s the only way I know. It’s the only way I can be sure of it . . . . (emphasis supplied)

******

“I don’t know, he said on final argument I wouldn’t lie, as God is my witness, as God is my witness, I wouldn’t lie. Well, let me tell you something: - If I am ever over in that chair over there, facing life or death, life imprisonment or death, I guarantee you I will lie until by teeth fall out. (emphasis supplied)

“What does he have to lose to lie? Nothing. Nothing ....

******

“Mr. Turman, not knowing anything happened, not knowing what was going on. I wish he had had a shotgun in his hand when he walked in the back door and blown his face off. I wish that I could see him sitting here with no face, blown away by a shotgun, but he didn’t. He had no gun. He had no chance. He didn’t give it to him. With a gun in the woman’s back about to attempt his lust, his greed, the poor man opened the door and he shoots him between the eyes. Between the eyes, isn’t that enough? Not for Darden it’s not enough. There’s more, (emphasis supplied)

******

“ . . . I wish someone had walked in the back door and blown his head off at that point.” (emphasis supplied)

In light of the “animal” characterization by the defense, when the jury found Appellant guilty, the statements of prosecuting counsel that Appellant was an animal do not seem unduly inflammatory. It seems inappropriate to reverse the State’s conviction because the prosecutor was making the same alleged errors as defense counsel. A careful examination of the record leads this Court to conclude that, although the prosecutor’s remarks under ordinary circumstances would constitute a violation of the Code of Professional Responsibility, in this particular case they •amount to harmless error when the totality of the record is considered in these uniquely vicious crimes.

Let us briefly review the conduct condemned by the prosecutor. The Appellant was a career criminal who admitted at least five convictions and who was on a weekend furlough from the state prison to visit his family when these felonies were committed. His family, including his wife, was out of the State, so Appellant stayed with another woman in Tampa. On the day of the crimes he took the woman to work and then used her car to visit various bars where he drank alcohol and gambled in a pool hall contrary to standards imposed by the conditions of the furlough, even neglecting to pick up the woman when she left work.

Appellant said he was paid to drive an unidentified stranger named Roy to Lake-land, that he had car trouble, and that he was racing back to Tampa where he was supposed to be best man in a wedding. He admitted speeding in a rainstorm and creating great danger to other motorists when he wrecked the car on the same road taken by the killer according to witnesses. The wreck was near the murder scene and occurred about the same time as the crimes; furthermore, the car Appellant drove fit the description of the getaway vehicle used by the criminal after his crimes were committed. The pistol admitted into evidence was identified as probably being the death weapon and was of the same type; it was found the day after the killing, robbery and attempted murder only thirty-nine feet from where Appellant’s car was wrecked. Four cartridges had been fired, the very same number fired at the scene of the crime.

The record shows that Appellant first robbed Mrs. Helen Turman and that, when her unarmed husband Carl started to enter the store, Appellant shot him between the eyes scattering blood and brains. As a sixteen year old boy, Phillip Arnold, tried to aid the wounded man, Appellant shot him in his mouth, neck, and side, leaving permanent injuries, including a bullet still in his neck at time of trial. While her bleeding husband lay in a rainstorm at the door, Appellant tried to force Mrs. Turman to commit an unnatural sex act upon him at gun point. She refused, and after shooting the boy Appellant left the area.

How is it possible to use language which is fair comment about these crimes without shocking the feelings of any normal person? The language used by the prosecutor would have possibly been reversible error if it had been used regarding a less heinous set of crimes. The law permits fair comment. This comment was fair.

When the work product of a criminal is a mortally wounded husband, a wife who is sexually assaulted and robbed, and a sixteen year old boy who is shot three times while trying to help the wounded man, there is little basis to complain of the State Attorneys’ expressions in reasonably describing what happened and what should be done to the guilty party.

There was overwhelming eyewitness and circumstantial evidence to support a finding of guilt on all charges and a recommendation of a death sentence for first degree murder. There were absolutely no mitigating circumstances to reduce the penalty from death to life imprisonment.

While the rule against inflammatory and abusive argument by a state’s attorney is clear, each case must be considered upon its own merits and within the circumstances pertaining when the questionable statements are made, and, if there is ample basis in the record to support the remarks, a conviction will be affirmed. Our review of the record convinces us that the remarks complained of were not sufficient to deprive Appellant of a fair trial when the totality of the evidence is considered.

Additionally, Appellant admits that his attorney voiced but a single objection to the prosecutor’s closing arguments, that it was not directed to any of the allegedly inflammatory matter, and that his attorney waited until the fifth occasion to object at all. This Court has held that a prosecutor’s challenged argument will be reviewed on appeal only when a timely objection is made.

Accordingly, the judgments and sentences are affirmed.

It is so ordered.

ADKINS, C. J., ROBERTS and OVER-TON, JJ., and FERRIS, Circuit Judge, concur.

SUNDBERG, J., dissents with an opinion, with which ENGLAND, J., concurs.

. cf. Arline v. State, 303 So.2d 37 (Fla.App. 1974).

. Collins v. State, 180 So.2d 340 (Fla.1965).

. Sanders v. State, 241 So.2d 430 (Fla.App. 1970) ; Hamrick v. State, 235 So.2d 360 (Fla.App.1970), cert. den. 238 So.2d 421 (Fla.) cert. den. 400 U.S. 994, 91 S.Ct. 466, 27 L.Ed.2d 443.

. State v. Jones, 204 So.2d 515 (Fla.1967).