Appendix — Sireci v. Florida

81-5379

rile OF THE K

CASE NO. A-23 SUPREME COURT, U.S. |

IN THE Supreme Court, US.

FILED

SUPREME COURT OF THE UNITED STATES

SEP g 1981

October Term, 1980

Aevender L. Stevas, Clerk

HENRY PERRY SIRECI,

Petitioner

vs.

STATE OF FLORIDA,

Respondent.

APPENDIX ON PETITION FOR

A WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

RICHARD L. JORANDBY

Public Defender

15th Judicial Circuit of Florida

224 Datura Street/l3th Floor

West Palm Beach, Florida 33401

(305) 837-2150

CRAIG S. BARNARD

Chief Assistant Public Defender

Counsel for Petitioner.

INDEX TO APPENDIX

Original Opirion, Supreme Court of Florida

Sireci v. State, Case No. 59,905

Opinion Issued April 9, 1981 (Fla. 1981)

Motion for Rehearing

Order Denying Motion for Rehearing, and

Modifying Original Opinion

Opinion, Supreme Court of Florida

Sireci v. State, 399 So.2d 964

a.

PAGE

1-13

14-24

25

26-34

Supreme Court of Florida

No. 50,905

HENRY PERRY SIRECI, JR., Appellant,

vs.

STATE OF FLORIDA, Appellee.

{April 9, 1981]

ADKINS, J.

This is a direct appeal from a judgment adjudging

defendant guilty of murder in the first degree and a sentence of

death. We have jurisdiction.

The defendant, Sireci, went to a used car lot, entered the

office, and discussed buying a car with the victim Poteet, the

owner of a car lot. Defendant argues that the purpose of his

visit was to tale some keys from the rack so that he could come

back later and steal an automobile. The state argues that

defendant went to the used car lot for the purpose of robbing the

owner at that time.

The defendant was armed with a wrench and a knife. A

struggle ensued. The victim suffered multiple stab wounds,

lacerations, and abrasions. An external examination of the body

revealed a total of fifty-five stab and incisive wounds, all

Leseeed on the chest, back, head, and extremities. The stab

wounds evoked massive external and internal hemorrhages which

were the cause of death. The neck was slit.

M The defendant told his girlfriend, Barbara Perkins, that

af ri ‘. he was talking to the victim about a car, then he hit the victim

i in the head with the wrench. When the man turned around, the

defendant asked where the money was, but the man wouldn't teil

the defendant, so he stabbed the man. The defendant told Perkins

on —

that De Killed Poteet. Se admitted taking the wallet from the

vactia.

Garvey Woodall, defendant's cellmate when De was arrested

Am Tlliameis, cestified that the defendant Sad described the

manner in which De Killed the victim. According te Seodall’s

testimony, the Jefentant Dit the Victim WAtR & wWremenh, thea a

figat ensued in which the windows were droken, and the Jefeniant

stabbed the Ban OVEr Sixty times. The defendant stated that de

wasn't going to leave any witmesses to teatity against Sie and

that he Knew the aan was dead when De left. The defendant told

Woodall he got around $150.00 plus credit cards.

The defendant also Jdeseridbed the ovime to Bonnie Arnel.

According te Armold, the defendant stated that the car lot owner

and he were talking about selling the defendant a car, when the

defendant Ait the Victim wath a tire tool. A fight dbegan and the

defendant stabbed the victim. The defendant told Arnold that he

Was going in to steal some car Keys and them come Dack later to

steal 3 car.

The defendant told David Wilson, Ais brother-in-law, thac

be Killed the victim with a five of six-inod Knife and took

eredit cards from the victim,

The defendant contends that the Killing was a spur-ofthe-

moment act occurring after a fight had begun and that he entered

the used car lot without any intent to rob or harm the victia,

tie only intent was to take keys from the office in order to

return, after the office wee closed, for a car. Defendant says

this negates the element of premeditation,

Premeditation can be shown by ciroumatant iad ev idence,

Spinkelling v. State, JL) So.24 066 (Fla, 1975), corte, denied,

428 U.3. 91. (1976). Premeditation is a fully- formed conscious

purpose to Kill, which exists in the mind of the perpetrator fox

@ sufficient length of time to permit of reflection ond in

pursuance ef which an act of Killing ensues. Weaver v. State,

220 So.2d $3 (Fla. 24 DCA), cont, dented, 225 So. 24 913 (Lee9),

Premeditation does not Nave to de contemplated for any particular

period of time before the act, and may occur a moment before the

-}-

act. Hernandez v. State, 273 So.2d 130 (Pla. lst DCA ) cert.

denied, 277 So.2d 297 (1973). Evidence from which premeditation

may be inferred includes such matters as the nature of the weapon

used, the presence or absence of adequate provocation, previous

difficulties between the parties, the manner in which the

homicide was committed and the nature and manner of the wounds

inflicted. It must exist for such time before the homicide as

will enable the accused to be conscious of the nature of the deed

he is about to commit and the probable result to flow from it

insofar as the life of his victim is concerned. Larry v. State,

104 So.2d 352 (Fla. 1958). Weighing the evidence in light of

these standards it is clear that the premeditation of the

defendant has been proved beyond a reasonable doubt.

The defendant stated to witness Perkins, in recounting the

incident, that he hit the victim with the lug wrench, and

demanded from the victim the iocation of the victim's money. The

victim would not tell him, so the defendant stabbed him. The

defendant told witness Perkins that he had looked all over for

the money, but couldn't find any, so he took the man's wallet.

The evidence shows that the defendant needed money, since he was

not working and was preparing to go on a trip. The evidence was

also sufficient to sustain a finding by the jury that defendant

was guilty of felony murder. There was clearly sufficient,

competent evidencs by virtue of the circumstances, the physical

evidence, and the defendant's own statements, to support the

jury's verdict of guilty of murder in the first degree. Every

reasonable hypothesis of innocence was excluded.

The defendant questions the admissibility of testimony

from his former cellmate, Holtzinger, regarding an alleged

attempt by the defendant to have his brother-in-law, Wilson,

Rilled. The defendant says this was an improper reference to a

collateral offense. Wilson téstified as to various statements

made , the defendant which fully implicated him in the crime

charged. He also testified that the defendant yave details about

the knife and where the homicide took place. The defendant told

Wilson where the knife was located and Wilson retrieved the knife

-j3-

at

at that location and turned it over to the authorities. The

defendant told Holtzinger that the purpose of eliminating Wilson

and preventing him from testifying was to discredit the testimony

of witness Perkins, thereby avoiding a conviction. Evidence that

a suspected person in any manner endeavors to evade a threatened

prosecution by any ex post facto indication of a desire to evade

prosecution is admissible against the accused where the relevance

of such evidence is based on consciousness of guilt inferred from

such actions. Mackiewicz v. State, 114 So.2d 684 (Fla. 1959),

cert. denied, 362 U.S. 965 (1960). A defendant's attempt to

intimidate a state witness is relevant and admissible. Vaccaro

v. State, 152 Pla. 123, 11 So.2d 186 (Fla. 1942); Roberson v.

State, 40 Fla. 509, 24 So. 474 (1898).

It is axiomatic that evidence of another crime is

admissible if it casts light on the character of the act under

investigation by shewing either motive, intent, absence of

mistake, common scheme, identity, or a system or general pattern

of criminality, so that the evidence of such other crime would

have a relevant or material bearing upon some essential aspect of

the offense being tried. Ashley v. State, 265 So.2d 685 (Fla.

1972); Williams v. State, 110 So.2d 654 (Fla.), cert. denied,

361 U.S. 847 (1959). The test for determining whether a

defendant's prior crimes are admissible is relevancy, and, as

long as the evidence of other crimes is relevant for any purpose,

the fact that it is prejudicial does not make it inadmissible.

Ashley v. State, supra.

The defendant contends that he was unduly prejudiced by

the state's failure to include the name of Donald Holtzinger on a

written witness list until the day of the trial. He argues that

the trial court erred in refusing to strike Holtzinger's

testimony. The defendant moved to continue the trial on the

grounds that he had been given an additional list of five

witnesses shortly before the trial and the state had failed to

comply with the requirements of Florida Rule of Criminal

Procedure 3.220. Compliance with this rule, i.e., furnishing a

list of witnesses, does not necessarily have to be in writing.

-4-

The state was aware of the existence of this witness

approximately four months prior to trial. Within two weeks after

the state became aware of the witness, the detective who had the

witness's name and the contents of his relevant information was

deposed by the defendant's first attorney. The detective, at

this deposition, informed the defendant's attorney of the witness

Holtzinger, and that Holtzinger had been talking with the

defendant about the incident in question. The initial witness

list supplied to the defense concluded with the statement,

"together with any other persons named in any investigative or

laboratory reports or other documents furnished in compliance."

Purthermore, Holtzinger's name was number 28 on the praecipe for

witness subpoena, which was filed twelve days prior to trial.

i Additionally, defendant's counsel was made aware of the witness

Holtzinger by prior defense counsel one week before trial.

ye Finally, written notice was given to defense counsel two days

i before Holtzinger's testimony. A comprehensive inquiry, as

a contemplated by Richardson v. State, 246 So.2d 771 (Pla. 1971),

: was made by the trial court. It is axiomatic that a motion for

continuance is addressed to the sound discretion of the trial

judge. Raulerson v. State, 102 So.2d 281 (Fla. 1958). The

defendant has failed to show that there was an abuse of the trial

judge's discretion and has further failed to show that any

prejudice resulted by the failure to include Holtzinger's name in

an earlier written witness list.

In Mobley v. State, 327 So.2d 900 (Fla. 3d DCA), cert.

denied, 341 So.2d 292 (1976), the court > a that even though the

state failed to provide the defendant with the name of a witness

pursuant to a defense request for a typical discovery, the trial

court did not abuse its discretion in denying defendant's motions

to exclude the witness and in denying defendant's motion for

continuance, where the defendant was given an opportunity to

speak with the witness and where the name of the witness was

listed in at least three places on defendant's arrest report.

In Cooper v. State, 336 So.2d 1133 (Fla. 1976), cert. denied, 431

a U.S. 925 (1977), this Court held that the defendant had not been

‘ unfairly surprised by the fact that a ballistics expert had been

i left off the list of witnesses, where defense counsel reasonably

r should have been aware of the state's proposed proof by reason of

4 information already known to the defendant. See also Floyd v.

{ State, 361 So.2d 802 (Fla. 3d DCA 1978), cert. denied, 368 So.2d

. 1366 (1979); Cooper v. State, 56 So.2d 911 (Pla. 3d DCA 1978),

Ei core. denied, 368 So.2d 1364 (1979).

During the cross-examination of state witness Perkins the

; Getense attempted to impeach her by use of the fact that during a

» deposition she had refused to answer questions on the advice of

ii attorney and pursuant to her attorney's objection on the

‘ * grounds that she may be incriminated. Perkins admitted that this

was the content of her deposition. Apparently defendant had

‘{aformation that public defender Bowen had worked out a deal in

behalf so that she would acquire immunity in exchange for her

ony. The defendant says that reversible error was

itted because he was restricted in his cross examination of

, so that he could not make inquiry as to the existence of

Wan immunity contact.

However, the record discloses that defendant's counsel

; w tioned her fully and in detail regarding any agreement which

. made or promises which were received in return for her

Perkins testified there was no agreement not to

in exchange for her testimony. She was not charged

with the commission of any offense in connection with the

nt. She stated that she had not been led to believe, or

4, that she could not be prosecuted. On cross-examination

» testified that she had not entered into any agreement with

. ‘3 e prosecutor in connection with any offense in exchange for her

| pny.in the case. She knew of no deal worked out in her

by public defender Bowen in exchange for her testimony.

se trial court clearly indicated defense counsel could attempt

h the witness's testimony regarding the fact that there

po arrangement between her and the state for her

at the trial. However, no impeachment testimony was

Wide latitude is permitted on cross-examination in a

criminal proceeding, the scope and limitation of which lies

within the sound discretion of the trial court and is not subject

to review except for a clear abuse of discretion. Mancebo v.

State, 350 So.2d 1098 (Fla. 3d OCA 1977), cert. denied, 359 So.2d

1217 (1978). The defendant has failed to show any abuse of

discretion on the part of the trial court.

Detective Nazurchuk testified concerning the interrogation

of the defendant shortly after he was arrested. He stated that

he read defendant his rights and that “he requested his

_ attorney." The detective stated that the interview was then

terminated. The defendant says he was denied due process of law

py the introduction of this testimony which was a direct comment

upon his exercise of his constitutional right to remain silent.

ghe defendant made no objection to the admission of this

_ testimony nor did he move for a mistrial. Under these

tances he did not comply with the principles set forth in

v. State, 363 So.2d 331 (Fla. 1978), so he is not entitled

relief on appeal.

In considering the total record we cannot say that the

tement by ..e detectives should be considered as fundamental

in view of its minimal impact. Doyle v. Ohio, 426 U.S. 610

76), clearly indicates that the harmless error doctrine could

applicable to this type of error. There was overwhelming

of defendant's guilt. In fact, the defendant had

tted his guilt to various witnesses produced by the state who

' not law enforcement officers. We believe that the harmless

whe ¢

doctrine should be applied in a capital case where there is

5 evidence of defendant's guilt. There is no merit to

og

4g contention of the defendant.

Ee « Section 40.01(1), Florida Statutes (1977), provides that

os

=

made that this statute denies his right to a fair cross-

mt mother or mother of a child under fifteen years of

.

: be exempted from jury duty upon request. The defendant's

P24

a of the community on his jury is without merit. McArthur

}. 3$1 $o.2d 972 (Fla. 1977).

1

: set

The defendant claims that he was denied due process of law

by the state's failure to notify him prior to trial of the

aggravating circumstances the state intended to prove in the

case. This argument is without merit. Menendez v. State, 368

So.2d 1278 (Fla. 1979); Spinkellink v. Wainwright, 578 F.2d 582

(Sth Cir. 1978), cert. denied, 440 U.S. 976 (1979). Section

921.141(5), Plorida Statutes (1977), defines the aggravating

circumstances that may be considered by both the judge and the

jury. This clearly rebuts the defendant's argument that he had

no notice of the aggravating circumstances on which the state

would rely.

The statutes in some other states specifically require

that notice of the aggravating circumstances be given to the

Gefendant prior to trial. The defendant's reliance upon cases

from these jurisdictions is misplaced for it is irrelevant what

other state statutes require in this regard. Even in the absence

of such a provision, the Florida statute is constitutional and

has been so held. Proffitt v. Florida, 428 U.S. 242 (1976);

Menendez, supra; Spinkellink, supra; State v. Dixon, 283 So.2d 1

(Fla. 1973), cert. denied, sub nom. Hunter v. Florida, 416 U.S.

943 (1974).

The defendant argues that in order for the trial court to

have the requisite jurisdiction to impose the death sentence, a

listing of the aggravating circumstances which the state intends

to rely upon must be contained in the indictment. This argument

is also without merit. When one is charged with murder in the

first degree, he is well aware of the fact that it is a capital

felony punishable by a maximum sentence of death, as provided in

section 775.082 and 921.141, Florida Statutes, (1977). The

indictment charged all the elements of murder in the first degree

ont we defendant had notice of the aggravating circumstances.

In support of his position defendant has cited Arthur v.

State, 351 So.2d 60 (Fla. 4th DCA 1977), which seems to indicate

that, before the trial court can impose a mandatory minimum

three-year sentence pursuant to section 775.087(2), Florida

Statutes (1977), the allegation that defendant carried a firearm

4

must be contained in the indictment. The mandatory minimum

three-year sentence pursuant to the above statute is a separate

sentence enhancement, which is not contained and for which notice

is not provided in the particular statute with which a defendant

is charged. Defendant in the case sub judice, being charged with

murder in the first degree, is immediately placed on notice that

he is charged with a capital felony punishable as provided by

statute. Defendant also cites cases regarding the burglary and

robbery statutes, arguing that the different degrees of burglary

and robbery constitute the application of varying aggravating

circumstances, analogous to the aggravating circumstances in a

capitol felony. This argument is also without merit. Sections

810.02 and 812.13, Florida Statutes (1977), do not charge

burglary and robbery with varying sentences depending upon the

applicability of certain “aggravating circumstances.” These

statutes charge burglary and robbery in different degrees, each

degree carrying different sentences. A defendant would not be on

notice of which degree of burglary or robbery was charged unless

the necessary allegations bringing the particular charge into a

certain section of the burglary or robbery statute were

contained in the information. See Growden v. State, 372 So.2d

930 (Fla. 1979).

Defendant contends that the death sentence was imposed

upon defendant on the basis of aggravating circumstances that

were not proved beyond 4 reasonable doubt and were improperly

applied. He also says that the trial court improperly failed to

consider certain mitigating factors. Findings of a judge are

factual matters which should not be disturbed unless there is an

absence or lack of substantial competent evidence to support

those findings. Hargrave v. State, 366 So.2d 1 (Pla. 1978),

‘cert. denied, 444 U.S. 919 (1979); Lucas v. State, 376 So.2d

1149 (Pla. 1979).

Defendant argues that the trial judge improperly doubled

the aggravating circumstances of robbery and pecuniary gain. He

relies upon Provence v. State, 337 So.2d 783 (Fla. 1976), cert.

denied, 431 U.S. 969 (1977), where this Court said that pecuniary

-9-

gain cannot be doubled up with robbery in such a manner that two

factors are considered as separate aggravating circumstances. In

his findings of fact, the trial judge indicated that he was aware

that in evaluating aggravating and mitigating circumstances he

must not engage in a mere counting process of “x" number of

aggravating circumstances and "x" number of mitigating

circumstances, but rather a reasoned judgment. The mere

recitation of these two factors does not condemn the death

sentence. Hargrave v. State, 366 So.2d 1 (Pla. 1978); Fleming v.

State, 374 So.2d 954 (Fla. 1979).

As other aggravating factors, the Court found that

defendant's intent in murdering the victim was for the purpose of

avoiding arrest; that, at the time he committed the murder, the

defendant had been previously convicted of a felony involving

violence or threat of violence (robbery); and that the murder was

especially heinous, atrocious, and cruel. The trial court found

no mitigating circumstances. Even if the trial court improperly

considered one or more aggravating factors, such is harmless in

view of the fact that there were no mitigating factors and there

were present at least one or more aggravating factors which are

listed in the statute. Elledge v. State, 346 So.2d 998 (Pla.

1977).

Defendant counters with a contention that there were

mitigating factors. He says that the trial court failed to give

proper weight to evidence of the defendant's mental or emotional

problems. It appears from the evidence that any psychological or

emotional disorders of the defendant were, at most, personality

disorders. Personality disorders were described as the least

serious of all disorders. Defendant is attempting to argue the

applicability of the psychological mitigating circumstances

merely by virtue of the fact that he discovered that his father

was not his real father, and he had problems with his family as a

result. Nothing has been presented which would have the effect

of requiring this Court to disturb the findings of the judge.

See Raulerson v. State, 358 So.2d 826 (Ffla.), cert. denied, 439

U.S. 959 (1978).

- 10-

The defendant further argues that the state presented

evidence to the jury of a non-statutory aggravating factor: the

defendant's lack of remorse. The trial judge did not,find “lack

of remorse” as an aggravating factor. While lack of remorse

cannct constitute an aggravating circumstance, it can be offered

to the jury and judge as a factor which goes into the equation of

whether or not the crime was specially heinous, atrocious, or

cruel. In Sullivan v. State, 303 So.2d 632 (Fla. 1974), cert.

denied, 428 U.S. 911 (1976), the fact that the defendant

allegedly stated "I don't feel no different,” constituted part of

the equation which went into the finding of “heinous, atrocious,

and cruel.” Similarly, in Hargrave v. State, 366 So.2d 1 (Fla.

1978), the statements of the defendant that he had killed

before and it would not bother him to kill again were considered

as applicable to a consideration of whether or not the

aggravating factor of “heinous, atrocious, and cruel” was present

beyond a reasonable doubt. In both of these cases the death

sentence was upheld. In the case sub judice the trial court

Clearly did not consider “lack of remorse” as a separate

aggravating factor.

Defendant contends that the Plorida statute

unconstitutionally limits the cemspideration of mitigating

factors, relying upon Lockett v. Ohio, 438 U.S. 586 (1978).

Lockett indicates that the sentencer cannot be precluded from

considering, as mitigating factors, any aspect of defendant's

character or record or any circumstances of the offense that the

defendant may proffer as a basis for a sentence of less than

death. However, the United States Supcems Court also cleariy

indicated: that the trial court may exclude, as irrelevant, any

evidence not bearing upon the defendant's character or record, or

circumstances of the offense. Florida's death penalty statute

comports with Lockett, supra, and has been so interpreted.

Songer v. State, 365 So.2d 69€ (Fla. 1978), cert. denied, 441

U.S. 956 (1979). Defendant, however, says that he was restricted

in the presentation of evidence during the sentencing phase. The

evidence which he attempted to introduce allegedly would have

-ll-

pointed to his innocence. This argument is without merit. The

same jury heard all the evidence of guilt or innocence during the

first phase of defendant's trial. A further repetition of

evidence pointing to guilt or innocence in the case sub judice

would have been repetitive and pointless in the sentencing phase.

The trial judge clearly recognized his duty to consider evidence

in mitigation when he said that “all evidence of mitigating

circumstances may be considered by the judge or jury.” He also

recognized his duty to assess, by a process of reasoned judgment,

what factual situtations required the imposition of death and

which could be satisfied by life imprisonment in light of the

totality of the circumstances present. The trial judge found no

mitigating curcumstances to be present. This is not a situation

where the judge refused to hear certain evidence of mitigating

circumstances.

We have carefully reviewed the record and find no merit in

the points raised by defendant for reversal of his conviction or

reduction of his sentence.

Finding no reversible error, the judgment and sentence are

affirmed.

It is so ordered.

SUNDBERG, C.J., BOYD, OVERTON, ENGLAND, ALDERMAN and McDONALD, JJ.,

Concur

1

The incriminating statements made by defendant to his

cellmates were not the result of any initiation of law

enforcement. The cellmates came to the police after the

statements were made. As a result, wes joes v. Henry, no.

799-121, 48 U.S.L.W. 4703 (June 18, ; one v. State, 390

So.2d 338 (Fla. 1980) are not applicable.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IP

FILED, DETERMINED.

-12-

An Appeal from the Circuit Court in and for Orange County

Maurice M. Paul, Judge - Case No. 76-532

Richard L. Jorandby, Public Defender, Craig 3. Barnard,

Chief Assistant Public Defender, and Richard 8. Greens,

Assistant Public Defender, West Palm Beach, Florida,

for Appellant

Jim Smith, Attorney General, and Robert L. Bogen, Asvistant

Attorney General, West Palm Beach, Florida,

for Appellee

-lj-

str

IN TL: SUPREME COURT OF FLORIDA

. a : . )

PERRY SI?) P Lee

Appellant,

)

CASE NO. 50,905

)

PL KILDA,

)

)

MOTION FOR ki HEAVING

A liant J y ’ le iRee a pee

ths i rable Court *¢ f t rehearing fr

faled April 9, 1981, and a. grounds there!

1. This Court, in it: ion, seems to hav

ct a idence f ffe “es or bad a

‘ f ike ally relewar:. f this is inde

in F] grids, it ks ine ht with the dec} :)

1 State eupret Court, Pitth Carcuit ¢

and 3 us Floridse d As tt ! t

re : tated in Mi United Stu

» 69 §$.Ce. 213. 93 L.Ed. #4 (1948);

HENRY

VS.

STATE

re tu

©} (

ary

acm

the ’

this }

Appel

Surr

w.§ 4°

Courts that follow tle common law

tradition almost unanimously have

‘ome to disallow resort by the

prosecution to any nd of evidence

of a defendant's evi! character to

establish a probability of his guilt.

Not that the law

With a presumption of

Greer v. United St.its

137 S.CtL 209, GZ Yi

Simply closes the who!

character, disposition

inves ¢s

jood character,

, 245 U.S. 559,

169, but it

matter of

and reputation

“-*

on the prosecution’ ‘ase-in-chief,

The State may not siicow defendant's

praer trouble with ti. law, specific

Criminal acts, or il! sare among

his neighbors, even though such

facts might logically,

hat he is by propen

be persuasive

ity a probable

perpetrator of the crime ....

The overriding po! if excluding

sucn cViadence, desj ite its admitted

probative value, is the practical

experience that it: ¢cisallowance

tends to prevent confusion of

issues, unfair surprise and undue

prejudice, Id. at 47

-If-

the defendant

ia

-

state .

i ur

rinecdj}’s

‘

i ¢ ‘

rat

"

,

‘

;

‘

j i

> 4

sa“

>

j

i

bu

;

;

}

‘

‘

av

st

>

4 ,

t !

;

i pre

. ’ ’

Ve

» -

el ‘ |

" @

>

; ’

si

> s\-

‘

-

il

afeguard

Ww

“?

of

> - - >

3 ~-

4

‘

5 -.

‘hh

~ ~

° - ~

>

at

4

we

oY €

- ae

>.

~

~

s

= in

~

all three factors laid out th v. State, supra.

testimony was only rginal relevar > any iss

itted to s!

inf lue ‘ t nvict t f first irder

and < t th ( pad } j °

rat ge Y j t fact showed ti! ‘

a first ‘

, al '

ar i

Co hy ’ ‘

: 2)

to

t i J :

Tee

"-

nad ) sc t gr YT ”

‘ t 4

t

I ; ii

attempt te 7 ‘ |

7 ,

- ‘ ° tte , , a | = ‘

/

As? t “a , : vered

; re

j ;

. third ti . Mi j

, Dy } '* | ret

' r r j ; ‘ tri

; , i T is i

ve ral i ni y pi ial.

, pil that Holt: riage

3 ’ j t wratte i t the aa :

wut t i t reversal ‘ por becauble tric t ICUs

, st >

’ it ’

; for

;

BOOS

, rt t

owe] ] t

it le }

atisf

;

.

me

bition w

Jj Cig

ee al

—IA2-

itutory

jard

Inds

2d 1, 9 rhe key to whether this factor applic

—- aa

whet , ‘ i t rtu way ana 3 t

,

’ , ’

7 if act : .

iry > > > 1 is . } i tate,

ti ia ’ . i Ka : . ,

tr l if ied ¢ the ‘ t ¢ t the

;

Dy ents ' r and ac } ‘ tol

°

. } ; iung that Wa

,

at : : : l ]

’

rs ? ? ii

, ’ 1g

irre j . i Vac

; :

rg - Ss

4 a

‘ , iyt ri if t

. ’

awa st3 4 r wantc eis

‘

, , t of FI ;

7 *? I > ’

* * . vr ¢ .

r 7 ’

, [ t P| 4 °

‘ ‘ ‘

) ? or ' ’ Vi ‘

i . it ritit oih

law 1

* ; . ,

P 4b a * -

: t t jrant ae } , Vv

he LAND !

Pull t

jcial Circy f

4 ; t ra treet i t

“ j sa” cat P Fl

}

i

it :

‘ wa

ed

IN THE SUPREME COURT OF FLORIDA

WEDNESDAY, JUNE 10, 1961

HENRY PERRY SIRECI, oS

» 7 r ‘* ’

Appellant, ASE NO. P

ircuit irt Case N 76-532

STATE OF FLORIDA, °e range)

Appellee ee

Ti moti for rehearing is denis except as to Ground #¢4

which requests this Court to delete its statement that a comment on

post arrest siience an be harmless error. The opinion filed April 39,

1981, is hereby revised Jeletinga ti third l : h on

page 7.

tT: 3 at : sta »f ment and for ta xecution

is granted 3 pr | 33 in this irt and in the Ciz t irt of

tne * nev id > we at it an 3 3 : : 4* t , >. ; ré

hereby sta a ind i luding Ju ; 8) t llow ‘ to

seex review in the United States Suprerm foOurt and cptais ; furthe:z

Hon. Randall Kirkland, Clerk

TEST: Hon. Maurice M. Paul, Judge

if

9

Richard B. Greene, Esquire

ee LO Ce Robert L. Bogen, Esquire

J.

Clerh/ Supreme Court

—25

964 Fla.

death sentences and would remand for re-

sentencing by the trial judge only.

Henry Perry SIRECI, Jr., Appellant,

v. ‘

STATE of Florida, Appellee.

No. 50905.

Supreme Court of Florida.

April 9, 1981.

As Corrected on Denial of Rehearing

June 10, 1981.

Defendant was convicted before the

Circuit Court, Orange County, Maurice M.

Paul, J., of first-degree murder and was

sentenced to death, and he took direct ap-

peal. The Supreme Court, Adkins, J., held

that: (1) evidence proved premeditation be-

yond reasonable doubt; (2) defendant's for-

mer cell mate’s testimony in regard to de-

fendant's statements relating to attempt to

have his brother-in-law killed for purpose of

preventing him from testifying was admis-

sible; (3) refusal to strike a state witness’

testimony for alleged failure to include his

name on written witness list until day of

trial was not abuse of discretion; (4) failure

to notify defendant prior to trial of the

aggravating circumstances which state in-

tended to prove did not deny defendant due

process; (5) even if trial court improperly

considered one or more aggravating factors,

such impropriety would have been harm-

less; (6) defendant was not entitled to re-

lief on theory that trial court failed to give

proper weight to evidence of defendant's

mental or emotional problems; (7) it was

not shown that trial court considered “lack

of remorse” as a separate aggravating fac-

tor; and (8) refusal, during sentencing

phase, to permit defendant to present evi-

dence allegedly pointing to his innocence

‘was not error.

Judgment and sentence affirmed.

-_

399 SOUTHERN REPORTER, 2d SERIES

i. Homicide 232

Premeditation can be shown by circum-

stantial evidence.

2. Homicide @14(1)

“Premeditation” is a fully formed pur-

pose to kill, which exists in mind of perpe-

trator for sufficient length of time to per-

mit a reflection, and in pursuance of which

an act of killing ensues.

See publication Words and Phrases

for other judicial constructions and

Gefinitions.

3. Homicide @ 14(2)

Premeditation does not have to be con-

templated for any particular period of time

before the act, and may occur & moment

before the act.

4. Homicide #232

Evidence from which premeditation

may be inferred includes such matters as

nature of the weapon used, presence or

absence of adequate provocation, previous

difficulties between the parties, or the man-

ner in which the homicide was committed

and nature of the wounds inflicted.

5. Homicide @ 14(2)

Premeditation must exist for such time

before the homicide as will enable accused

to be conscious of nature of deed he is about

to commit and probable result to flow from

it, insofar as life of victim is concerned.

6. Homicide & 253(3)

In proceeding in which defendant was

convicted of first<iegree murder, evidence,

including evidence that defendant needed

money and that he stated that he hit victim —

with wrench and demanded that victim dis

close location of his money and that defend.

ant stabbed victim because he would not

tell defendant where the money was proved ©

premeditation beyond reasonable doubt,”

7. Homicide *253(6)

In proceeding in which defendant

convicted of first-degree murder, :

was sufficient to sustain a finding

defendant was guilty of felony-murder, |

2G -

SIRECI v. STATE

Fla. 965

Chte as, Fla, 399 So.2d %*

8 Criminal Law @=351(10)

; In proceeding in which defendant was

_ convicted of first-degree murder, defend-

ant's former cell mate's testimony in regard

to defendant's statements relating to his

_ alleged attempt to have his brother-in-law

killed so as tu prevent him from testifying

was admissible.

9. Criminal Law @351(1)

Evidence that a suspected person has in

any manner endeavored to evade a threat-

ened prosecution by any ex post facto indi-

cation of a desire to evade prosecution is

admissible against accused where relevance

of such evidence is based on consciousness

of guilt inferred from such actions.

10. Criminal Law ¢=351(10)

Defendant's attempt to intimidate a

state witness is relevant and admissible.

11. Criminal Law 369.15, 371(1, 12),

372(1)

Evidence of another crime is admissible

if it casts light on character of act under

investigation by showing either motive, in-

tent, absence of mistake, common scheme,

identity or a system or general pattern of

criminality, so that evidence of such other

crime would have a relevant or material

bearing on some essential aspect of the

offense being tried.

12. Criminal Law @369.2(1)

Test for determining whether a defend-

ant's prior crimes are admissible is relevan-

cy, and, as long as evidence of other crimes

is relevant for any purpose, the fact that it

_ js prejudicial does not make it inadmissible.

13. Criminal Law ¢=629

Compliance with rule requiring fur-

nishing of a list of witnesses does not neces-

sarily have to be in writing. 33 West's

F.S.A. Rules of Criminal Procedure, Rule

3.220.

14. Criminal Law 629

In murder prosecution, refusal to strike

state witness’ testimony for «lleged failure

to include his name on written witness list

until day of tria! was not abuse of discre-

“tion, in light of fact that detective, at a

deposition, had informed defendant's attor-

ney of the witness and that he had been

talking with defendant, that initial witness

list concluded with statement “together

with any other persons named in * * * re-

ports or other documents furnished in com-

pliance,” that witness’ fame was on prae-

cipe for witness subpoena filed 12 days pri-

or to trial, that defense counsel was made

aware of witness one week before trial and

that written notice was given two days

before witness’ testimony. 33 West's F.S.A.

Rules of Criminal Procedure, Rule 3.220.

15. Witnesses @= 267

Defendant, who was convicted of first-

degree murder, failed to show any abuse of

discretion in regard to alleged restriction of

his cross-examination of state witness.

16. Constitutional Law = 266.1(1)

Defendant, who was convicted of first-

degree murder, was not entitled to relief on

appeal on basis of contention that he was

denied due process by introduction of testi-

mony, in which detective stated that he

read defendant his righis and that “he re-

quested his attorney” and which was assert-

edly a direct comment on his exercise of his

constitutional right to remain silent, in light

of fact that defendant had made incrimina-

ting statements to many people including a

confession to his brother-in-law. U.S.C.A.

Const. Amends. 5, 14.

17. Jury &33(1)

Statute, which provides that any ex-

pectant mother or mother with child under

15 years of age may be exempted from jury

duty on request, does not deny an accused

his right to a fair cross section of the com-

munity on his jury. West's F.S.A. § 40.-

01(1).

18. Constitutional Law ¢270(1)

In proceeding in which defendant was

convicted of first-degree murder and was

sentenced to death, State’s failure to notify

defendant prior to trial of the aggravating

circumstances the State intended to prove

did not deny defendant due process. West's

F.S.A. § 921.141(5); U.S.C.A.Const. Amend.

14.

Deen

966 Fis.

19. Indictment and Information 113

Indictment need not contain list of ag-

gravating circumstances, which state in-

tends to rely on, in order for trial court to

have jurisdiction to impose death sentence.

West's F.S.A. §§ 775.082, 775.087(2), 921.-

141.

20. Criminal Law & 1159.2(5)

Findings of a judge are factual matters

which should not be disturbed unless there

is an absence or lack of substantial compe-

tent evidence to support those findings.

21. Homicide e354

Defendant, who was convicted of first-

degree murder and was sentenced to death,

was not entitled to relief on theory that

trial judge improperly doubled the aggra-

vating circumstances of robbery and pecu-

niary gain, in light of fact, that though

judge recited such two factors, he indicated

that he was aware that in evaluating ag-

gravating and mitigating circumstances he

was not to engage in a mere counting proc-

ess of “x” number of aggravating circum-

stances, and “x” number of mitigating cir-

cumstances, but, rather, was to make a

reasoned judgment. West's F.S.A. §§ 775.-

082, 921.141.

22. Homicide 343

Even if trial court improperly con-

sidered one or more aggravating factors in

proceeding in which defendant was convict-

ed of first-degree murder and was sen-

tenced to death, such impropriety would

have been harmless, in view of fact that

there were no mitigating factors and that

at least one or more statutorily listed ag-

gravating factors were present. West's

F.S.A. §§ 775.082, 921.141.

23. Homicide 354

Defendant, who was convicted of first-

degree murder and was sentenced to death,

was not entitled to relief on basis of conten-

tion that trial ccurt failed to give proper

weight to evidence of defendant's mental or

emotional problems, though he may have

had personality disorders relating to fact

that he discovered that person believed to

be defendant's father was not his real fa-

ther? West's F.S.A. §§ 775.082, 921.141.

_of his visit was to take some keys from the

399 SOUTHERN REPORTER, 2d SERIES

24. Homicide #354

Though lack of remorse cannot consti-

tute an aggravating circumstance in deter-

mining whether death sentence should be

imposed, it can be offered to jury and judge

as a factor which goes into the equation of

* whether or not crime was specially heinous,

atrocious or cruel. West's F.S.A. §§ 775.-

082, 921.141.

25. Homicide ¢=327

On appeal from judgment adjudging

defendant guilty of first-degree murder and

sentencing him to death, it was not shown

that trial court had considered “lack of re-

morse” as a separate aggravating factor.

West's F.S.A. §§ 775.082, 921.141.

26. Criminal Law © 1206(1)

Death penalty statute does not uncon-

stitutionally limit consideration of mitigat-

ing factors. West's F.S.A. § 921.141.

27. Homicide 344

In proceeding in which defendant was

convicted of first-degree murder and was

sentenced to death, refusal, during sentenc-

ing phase, to permit defendant to present

evidence allegedly pointing to his innocence

was not error. West's F.S.A. §§ 775.082,

921.141.

Richard L. Jorandby, Public Defender,

Craig S. Barnard, Chief Asst. Public De.

fender, and Richard B. Greene, Asst. Public

Defender, West Palm Beach, for appellant,

Jim Smith, Atty. Gen. and Robert L. Bo.

gen, Asst. Atty. Gen., West Palm Beach, for

appellee.

ADKINS, Justice.

This is a direct appeal from a judgment

adjudging defendant guilty of murder in ©

the first degree and a sentence of death

We have jurisdiction. FY

The defendant, Sireci, went to a used car

lot, entered the office, and discussed buying

a car with the victim Poteet, the owner of 9:5 “

car lot. Defendant argues that the 5

—2F- a

SIRECI v. STATE

Fla. 967

Cite as, Fin., 399 So.2d 064

rack so that he could come back later and

steal an automobile. The state argues that

defendant went to the used car lot for the

purpose of robbing the owner at that time.

The defendant was armed with a wrench

and a knife. A struggle ensued. The vic-

tim suffered multiple stab wounds, lacera-

tions, and abrasions. An external examina-

tion of the body revealed a total of fifty-

five stab and incisive wounds, all located on

the chest, back, head, and extremities. The

stab wounds evoked massive external and

internal hemorrhages which were the cause

of death. The neck was slit.

The defendant told his girlfriend, Bar-

bara Perkins, that he was talking to the

victim about a car, then he hit the victim in

the head with .he wrench. When the man

turned around, the defendant asked where

the money was, but the man wouldn't tell

the defendant, so he stabbed the man. The

defendant told Perkins that he killed Po-

teet. He admitted taking the wallet from

the victim.

Harvey Woodall, defendant's cellmate

when he was arrested in Illinois, testified

that the defendant had described the man-

ner in which he killed the victim. Accord-

ing to Woodall’s testimony, the defendant

hit the victim with a wrench, then a fight

ensued in which the windows were broken,

and the defendant stabbed the man over

sixty times. The defendant stated that he

wasn't going to leave any witnesses to testi-

fy against him and that he knew the man

was dead when he left. The defendant told

Woodall he got around $150.00 plus credit

cards. ;

The defendant also described the crime to

Bonnie Arnold. According to Arnold, the

defendant stated that the car lot owner and

he were talking about selling the defendaft

a car, when the defendant hit the victim

with a tire tool. A fight began and the

defendant stabbed the victim. The defend-

ant told Arnold that he was going in to

steal some car keys and then come back

later to steal a car.

The defendant told David Wilson, his

brother-in-law, that he killed the victim

with a five or six-inch knife and took credit

* cards from the victim.

The defendant contends that the killing

was a spur-of-the-moment act occurring af-

ter a fight had begun and that he entered

the used car lot without any intent to rob or

harm the victim. His only intent was to

take keys from the office in order to return,

after the office was closed, for a car. De-

fendant says this negates the element of

premeditation.

[1-6] Premeditation can be shown by

circumstantial evidence. Spinkellink v.

State, 313 So.2d 666 (Fla.1975), cert. denied,

428 U.S. 911, 96 S.Ct. 3227, 49 L.Ed.2d 1221

(1976). Premeditation is a fully-formed

conscious purpose tw kill, which exists in the

mind of the perpetrator for a sufficient

length of time to permit of reflection, and

in pursuance of which an act of killing

ensues. Weaver v. State, 220 So.2d 53 (Fla.

2d DCA), cert. denied, 225 So.2d 913 (1969).

Premeditation does not have to be contem-

plated for any particular period of time

before the act, and may occur a moment

before the act. Hernandez v. State, 273

So.2d 130 (Fla. lst DCA) cert. denied, 277

So.2d 287 (1973). Evidence from which pre-

meditation may be inferred includes such

matters as the nature of the weapon used,

the presence or absence of adequate provo-

cation, previous difficulties between the

parties, the manner in which the homicide

was committed and the nature and manner

of the wounds inflicted. It must exist for

such time before the homicide as will enable

the accused to be conscious of the nature of

the deed he is about to commit and the

probable result to flow from it insofar as

the life of his victim is concerned. Larry v.

State, 104 So.2d 352 (Fla.1958). Weighing

the evidence in light of these standards it is

clear that the premeditation of the defend-

ant has been proved beyond a reasonable

doubt.

[7] The defendant stated to witness

Perkins, in recounting the incident, that he

hit the victim with the lug wrench, and

demanded from the victim the location of

the victim's money. The victim would not

tell him, so the defendant stabbed him.

= 27-

968 Fis.

The defendant told witness Perkins that he

had looked all over for the money, but

coulda’t find any, so he took the man’s

wallet. The evidence shows that the de-

fendant needed money, since he was not

working and was preparing to go on a trip.

The evidence was also sufficient to sustain

a finding by the jury that defendant was

guilty of felony murder. There was clearly

sufficient, competent evidence by virtue of

the circumstances, the physical evidence,

and the defendant's own statements, to sup-

port the jury's verdict of guilty of murder

in the first degree. Every reasonable hy-

pothesis of innocence was excluded.

(8-10) The defendant questions the ad-

missibility of testimony from his former

_cellmate, Holtzinger, regarding an alleged

attempt by the defendant to have his broth-

er-in-law, Wilson, killed! The defendant

says this was an improper reference to &

collateral offense. Wilson testified as to

various statements made by the defendant

which fully implicated him in the crime

charged. He also testified that the defend-

ant gave details about the knife and where

the homicide took place. The defendant

told Wilson where the knife was located

and Wilson retrieved the knife at that loca-

tion and turned it over to the authorities.

The defendant told Holtzinger that the pur-

pose of eliminating Wilson and preventing

him from testifying was to discredit the

testimony of witness Perkins, thereby

avoiding a conviction. Evidence that a sus-

pected person in any manner endeavors to

evade a threatened prosecution by any ex

post facto indication of a desire to evade

prosecution is admissible against the ac-

cused where the relevance of such evidence

is based on consciousness of guilt inferred

from such actions. Mackiewicz v. State,

114 So.2d 684 (Fla.1959), cert. denied, 362

U.S. 965, 80 S.Ct. 883, 4 L.Ed.2d 879 (1960).

A defendant's attempt to intimidate a state

witness is relevant and admissible. Vacca-

ro v. State, 152 Fla. 123, 11 So.2d 186 (Fla.

1942); Roberson v. State, 40 Fla. 509, 24 So.

474 (1898).

1, The incriminating siatements made by de-

fendant to his celimates were not the result of

any initiation of law enforcement. The cell-

mates came to the police after the statements

399 SOUTHERN REPORTER, 2d SERIES

{11,12} It is axiomatic that evidence of

another crime is admissible if it casts light

on the character of the act under investiga-

tion by showing either motive, intent, ab-

sence of mistake, common scheme, identity,

or @ system or general pattern of criminali-

ty, so that the evidence of such. other crime

would have a relevant or material bearing

upon some essential aspect of the offense

being tried. Ashley v. State, 265 So.2d 685

(Fla.1972); Williams v. State, 110 So.2d 654

(Fla.), cert. denied, 361 U.S. 847, 80 §.Ct.

103, 4 L.Ed.2d 86 (1959). The test for de-

termining whether a defendant's prior

crimes are admissible is relevancy, and, as

long as the evidence of other crimes is

relevant for any purpose, the fact that it is

prejudicial does not make it inadmissible.

Ashley v. State, supra.

[13] The defendant contends that he

was unduly prejudiced by the state's failure

to include the name of Donald Holtzinger

on a written witness list until the day of the

trial. He argues that the trial court erred

in refusing to strike Holtzinger’s testimony.

The defendant moved to continue the trial

on the grounds that he had been given an

additional list of five witnesses shortly be-

fore the trial and the state had failed to

comply with the requirements of Floride

Role of Criminal Procedure 3.220. Compli-

ance with this rule, i. e., furnishing a list of

witnesses, does not necessarily have to be in

writing.

[14] The state was aware of the exist-

ence of this witness approximately four

months prior to trial. Within two weeks

after the state became aware of the wit-

ness, the detective who had the witness's

name and the contents of his relevant infor-

mation was deposed by the defendant's first

attorney. The detective, at this deposition,

informed the defendant's attorney of the

witness Holtzinger, and that Holtzinger had

been talking with the defendant about the

were made. As a result, United States v. Hen-

ry, 447 U.S. 264, 100 S.Ct. 2183, 65 L-Ed2¢ 115

(1980); Malone v. State, 390 So.2d 338 (Fla. -

1980) are not applicable.

— 50 -

incident in question. The initial witness list

supplied to the defense concluded with the

statement, “together with any other per-

sons named in any investigative or laborato-

ry reports or other documents furnished in

compliance.” Furthermore, Holtzinger’s

name was number 28 on the praecipe for

witness subpoena, which was filed twelve

days prior to trial. Additionally, defend-

ant’s counsel was made aware of the wit-

ness Holtzinger by prior defense counsel

one week before trial. Finally, written no-

tice was given to defense counsel two days

before Holtzinger’s testimony. A compre-

hensive inquiry, as contemplated by Rich-

ardson v. State, 246 So.2d 771 (Fla.1971),

was made by the trial court. It is axiomat-

ic that a motion for continuance is ad-

dressed to the sound discretion of the trial

judge. Raulerson v. State, 102 So.2d 281

(Fla.1958). The defendant has failed to

show that there was an abuse of the trial

judge's discretion and has further failed to

show that any prejudice resulted by the

failure to include Holtzinger’s name in an

earlier written witness list.

In Mobley v. State, 327 So.2d 900 (Fla. 3d

DCA), cert. denied, 341 So.2d 292 (Fla.1976),

the court held that even though the state

failed to provide the defendant with the

name of a witness pursuant to a defense

request for a typical discovery, the trial

court did not abuse its discretion in denying

defendant's motions to exclude the witness

and in denying defendant's motion for con-

tinuance, where the defendant was given an

opportunity to speak with the witness and

where the name of the witness was listed in

at least three places on defendant's arrest

report. In Cooper v. State, 336 So.2d 1133

(Fla.1976), cert. denied, 431 U.S. 925, 97

§.Ct. 2200, 53 L.Ed.2d 239 (1977), this Court

held that the defendant had not been un-

fairly surprised by the fact that a ballistics

expert had been left off the list of witness-

es, where defense counsel reasonably should

have been aware of the state’s proposed

proof by reason of information already

known to the defendant. See also Floyd v.

State, 361 So.2d 802 (Fla. 3d DCA 1978),

cert. denied, 368 So.2d 1366 (Fla.1979); Coo-

’ per v. State, 356 So.2d 911 (Fla. 3d DCA

SikeCI v. STATE

Che as, Fla, 399 So.2d 964

Fia. 969

1978), cert. denied, 368 So.2d 1364 (Fla.

1979).

{15} During the cross-examination of

state witness Perkins the defense attempt-

ed to impeach her by use of the fact that

during a deposition she had refused to an-

swer questions on the advice of.her attor-

ney and pursuant to her attorney's objec-

tion on the grounds that she may be incrim-

inated. Perkins admitted that this was the

content of her deposition. Apparently de-

fendant had information that public de-

fender Bowen had worked out a deal in her

behalf so that she would acquire immunity

in exchange for her testimony. The de-

fendant says that reversible error was com-

mitted because he was restricted in his cross

examination of Perkins, so that he could not

make inquiry as to the existence of an

immunity contract.

However, the record discloses that de-

fendant’s counsel questioned her fully and

in detail regarding any agreement which

was made or promises which were received

in return for her testimony. Perkins testi-

fied there was no agreément not to prose-

cute in exchange for her testimony. She

was not charged with the commission of

any offense in connection with the incident.

She stated that she had not been led to

believe, or assured, that she could not be

prosecuted. On cross-examination she tes-

tified that she had not entered into any

agreement with the prosecutor in connec-

tion with any offense in exchange for her

testimony in the case. She knew of no deal

worked out in her behalf by public defender

Bowen in exchange for her testimony. The

trial court clearly indicated defense counsel

could attempt to impeach the witness’s tes

timony regarding the fact that there had

been no arrangement between her and the

state for her testimony at the trial. How-

ever, a0 impeachment testimony was of-

fered.

Wide latitude is permitted on cross-exam-

ination in a criminal proceeding, the scope

and limitation of which lies within the

sound discretion of the trial court and is not

subject to review except for a clear abuse

oe

970 Fis.

of discretion. Mancebo v. State, 350 So.2d

1098 (Fla. 3d DCA 1977), cert. denied, 359

So.2d 1217 (Fla.1978). The defendant has

failed to show any abuse of discretion on

the part of the trial court.

{16} Detective Nazurchuk testified con-

cerning the interrogation of the defendant

shortly after he was arrested. He stated

thai he read defendant his rights and that

“he requested his attorney.” The detective

stated that the interview was then termi-

nated. The defendant says he was denied

due process of law by the introduction of

this testimony which was a direct comment

upon his exercise of his constitutional right

to remain silent. The defendant made in-

criminating statements to many people, in-

cluding a confession to his brother-in-law.

{17} Section 40.01(1), Flerida Statutes

(1977), provides that any expectant mother

or mother of a child under fifteen years of

age may be exempted from jury duty upon

request. The defendant's contention that

this statute denies his right to a fair cross-

section of the community on his jury is

without merit. McArthur v. State, 351

So.2d 972 (Fla.1977).

{18} The defendant claims that he was

denied due process of law by the state’s

failure to notify him prior to trial of the

aggravating circumstances the state intend-

ed to prove in the case. This argument is

without merit. Menendez v. State, 368

So.2d 1278 (Fla.1979); Spinkellink v. Wain-

wright, 578 F.2d 582 (5th Cir. 1978), cert.

denied, 440 U.S. 976, 99 S.Ct. 1548, 59

L.Ed.2d 796 °(1979). Section 921.141(5),

Florida Statutes (1977), defines the aggra-

vating circumstances that may be con-

sidered by both the judge and the jury.

This clearly rebuts the defendant's argu-

ment that he had no notice of the aggravat-

ing circumstances on which the state would

rely.

The statutes in some other states specifi-

cally require that notice of the aggravating

circumstances be given to the defendant

prior to trial. The defendant's reliance

upon cases from these jurisdictions is mis-

placed for it is irrelevant what other state

399 SOUTHERN REPORTER, 2d SERIES

statutes require in this regard. Even in the

absence of such a provision, the Florida

statute is constitutional and has been so

held. Proffitt v. Florida, 428 U.S. 2A2, 96

S.Ct. 2960, 49 L.Ed.2d 913 (1976); Menen-

dez, supra; Spinkellink, supra; State v.

Dixon, 283 So.2d 1 (Fla.1973), cert. denied,

sub nom. Hunter v. Florida, 416 U.S. 943, 94

S.Ct. 1950, 40 L. Ed.2d 295 (1974).

{19} The defendant argues that in order

for the trial court to have the requisite

jurisdiction to impose the death sentence, a

listing of the aggravating circumstances

which the state intends to rely upon must

be contained in the indictment. This argu-

ment is also without merit. When one is

charged with murder in the first degree, he

is well aware of the fact that it is a capita!

felony punishable by a maximum sentence

of death, as provided in section 775.082 and

921.141, Florida Statutes (1977). The in-

dictment charged all the elements of mur-

der in the first degree and the defendant

had notice of the aggravating circumstanc-

es.

In support of his position defendant has

cited Arthur v. State, 351 So.2d 60 (Fla. 4th

DCA 1977), which seems to indicate that,

before the trial court can impose a manda-

tory minimum three-year sentence pursuant

to section 775.087(2), Florida Statutes

(1977), the allegation that defendant carried

a fireman must be contained in the indict-

ment. The mandatory minimum three-year

sentence pursuant to the above statute is a

separate sentence enhancement, which is

not contained and for which notice is not

provided in the particular statute with

which a defendant is charged. Defendant

in the case sub judice, being charged with

murder in the first degree, is itamediately

placed on notice that he is charged with a

capital felony punishable as provided by

statute. Defendant also cites cases regard-

ing the burglary and robbery statutes, ar-

guing that the differegt degrees of burgla

ry and robbery constitute the application of

varying aggravating circumstances, analo-

gous to the aggravating circumstances in a

capital felony. This argument is also with.

out merit. Sections 810.02 and 812.13, Flor-

—3Q-

‘

SIRECI v. STATE

Fla. 971

Cite as, Fla, 398 So.2d 964

ida Statutes (1977), do not charge burglary

and robbery with varying sentences depend-

ing upon the applicability of certain “aggra-

vating circumstances.” These statutes

charge burglary and robbery in different

degrees, each degree carrying different sen-

tences. A defendant would not be on notice

of which degree of burglary or robbery was

charged unless the necessary allegations

bringing the particular charge into a cer-

tain section of the burglary or robbery stat-

ute were contained in the information. See

Growden v. State, 372 So.2d 930 (Fila.1979).

[20] Defendant contends that the death

sentence was imposed upon defendant on

the basis of aggravating circumstances that

were not proved beyond a reasonable doubt

and were improperly applied. He also says

that the trial court improperly failed to

consider certain mitigating factors. Find-

ings of a judge are factual matters which

should not be disturbed unless there is an

absence or lack of substantial competent

evidence to support those findings. Har-

grave v. State, 366 So.2d 1 (Fla.1978), cert.

denied, 444 U.S. 919, 100 S.Ct. 239, 62

L.Ed.2d 176 (1979); Lucas v. State, 376

So.2d 1149 (Fla.1979).

{21] Defendant argues that the trial

judge improperly doubled the aggravating

circumstances of robbery and pecuniary

gain. He relies upon Provence v. State, 337

So.2d 783 (Fla.1976), cert. denied, 431 U.S.

969, 97 S.Ct. 2929, 58 L.Ed.2d 1065 (1977),

where this Court said that pecuniary gain

cannot be doubled up with robbery in such a

manner that two factors are considered as

separate aggravating circumstances. In his

findings of fact, the trial judge indicated

that he was aware that in evaluating ag-

gravating and mitigating circumstances he

must not engage in a mere counting process

of “x” number of aggravating circumstanc-

es and “x” number of mitigating circum-

" stances, but rather a reasoned judgment.

The mere recitation of these two factors

does not condemn the death sentence. Har-

grave_v. State, 366 So2d 1 (Fla.1978);

+ Fleming v. State, 374 So.2d 954 (Fila.1979).

o-

[22] As other aggravating factors, the

Court found that defendant’s intent in mur-

dering the victim was for the purpose of

avoiding arrest; that, at the time he com-

mitted the murder, the defendant had been

previously convicted of a felony involving

violence or threat of wiolence (robbery);

and that the murder was especially heinous,

atrocious, and cruel. The trial court found

no mitigating circumstances. Even if the

trial court improperly considered one or

more aggravating factors, such is harmless

in view of the fact that there were no

mitigating factors and there were present

at least one or more aggravating factors

which are listed in the statute. Elledge v.

State, 346 So.2d 998 (Fla.1977).

[23] Defendant counters with a conten-

tion that there were mitigating factors. He

says that the trial court failed to give prop-

er weight to evidence of the defendant's

mental or emotional problems. It appears

from the evidence that any psychological or

emotional disorders of the defendant were,

at most, personality disorders. Personality

disorders were described as the least serious

of all disorders. Defendant is attempting

to argue the applicability of the psychologi-

cal mitigating circumstances merely by vir-

tue of the fact that he discovered that his

father was not his real father, and he had

problems with his family as a result. Noth-

ing has been presented which would have

the effect of requiring this Court to disturb

the findings of the judge. See Raulerson v.

State, 358 So.2d 826 (Fla.), cert. denied, 439

U.S. 959, 99 S.Ct. 364, 58 L.Ed.2d 352 (1978).

[24,25] The defendant further argues

that the state presented evidence to the

jury of a non-statutory aggravating factor:

the defendant's lack of temorse. The trial

judge did not find “lack of remorse” as an

aggravating factor. While lack of remorse

cannot constitute an aggravating circum-

stance, it can be offered to the jury and

judge as a factor which goes into the equa-

tion of whether or not the crime was spe-

cially heinous, atrocious, or cruel. In Sulli-

van v. State, 303 So.2d 682 (Fla.1974), cert.

denied, 428 U.S. $11, 96 S.Ct. 3226, 49

L.Ed.2d 1220 (1976), the fact that the de-

7 =

a i |

ae

972 Fla

fendant allegediy stated “I don’t feel no

different,” constituted part of the equation

which went into the finding of “heinous,

atrocious, and cruel.” Similarly, in Har-

grave v. State, 366 So.2d 1 (Fla.1978), the

statements of the defendant that he had

killed before and it would not bother him to

kill again were considered as applicable to a

consideration of whether or not the aggra-

vating factor of “heinous, atrocious, and

cruel” was present beyond a reasonable

doubt. In both of these cases the death

sentence was upheld. In the case sub judi-

ce the trial court clearly did not consider

“lack of remorse” as a separate aggravating

factor.

[26,27] Defendant contends that the

Florida statute unconstitutionally limits the

consideration of mitigating factors, relying

upon Lockett v. Ohio, 438 U.S. 586, 98 S.Ct.

2954, 57 L.Ed.2d 973 (1978). Lockett indi-

cates that the sentencer cannot be preclud-

ed from considering, as mitigating factors,

any aspect of defendant’s character or rec-

ord or any circumstances of the offense

that the defendant may proffer as a basis

for a sentence of less than death. How-

ever, the United States Supreme Court also

clearly indicated that the trial court may

exclude, as irrelevant, any evidence not

bearing upon the defendant's character or

record, or circumstances of the offense.

Florida's death penalty statute comports

‘ with Lockett, supra, and has been so inter-

preted. Songer v. State, 365 So.2d 696 (Fla.

1978), cert. denied, 441 U.S. 956, 99 S.Ct.

2185, 60 L.Ed.2d 1060 (1979). Defendant,

however, says that he was restricted in the

presentation of evidence during the sen-

tencing phase. The evidence which he at-

tempted to introduce allegedly would have

pointed to his innocence. This argument is

without merit. The same jury heard all the

evidence of guilt or innocence during the

first phase of defendant's trial. A further

repetition of evidence pointing to guilt or

innocence in the case sub judice would have

been repetitive and pointless in the sentenc-

ing phase. The trial judge clearly recog-

nized his duty to consider evidence in miti-

gation when he said that “all evidence of

mitigating circumstances may be considered

399 SOUTHERN REPORTER, 2d SERIES

the judge or jury.” He also recognized

his duty to assess, by a process of reasoned

judgment, what factual situations required

the imposition of death and which could be

satisfied by life imprisonment in light of

the totality of the circumstances present.

The trial judge found no mitigating cireum-

stances to be present. This is not a situa-

tion where the judge refused to hear cer-

tain evidence of mitigating circumstances.

We have carefully reviewed the record

and find no merit in the points raised by

defendant for reversal of his conviction or

reduction of his sentence.

Finding no reversible error, the judgment

and sentence are affirmed.

It is so ordered.

SUNDBERG, C. J., and BOYD, OVER-

TON, ENGLAND, ALDERMAN and Mc-

DONALD, JJ., concur.

TRUMOER SYSTEM

°

<u s

—

STATE of Florida, Appellant,

v.

James Ronald CONSTANTINI, Paul Ear-

nest Kersten, Samuel R. Mathes, and

William Lioyd Tobin, Appellees.

No. 58112.

Supreme Court of Florida.

April 30, 1981.

Rehearing Denied Juiy 9, 1981.

Appeal from Circuit Court, Okeechobee

County; L. B. Vocelle, Judge.

Jim Smith, Atty. Gen., and Stewart J.

Bellus, Asst. Atty. Gen., West Palm Beach,

for appellant.

Anthony T. Young, Asst. State Atty., Ok-

eechobee, Steve Kackley, Sebring, Michael

Bloom, Miami, and H. Stephen Rash of

Rash, Katzen, Kay & Pintado, South Miami,

for appellees.

- 34-

>

”

81-5379 RECEIVED

CASE NO. A-23 SEP 19 1981

OFFICE OF THE CLERK

IN THE SUPREME COURT, US. |

SUPREME COURT OF THE UNITED STATES

FILED

SEP 1981

HENRY PERRY SIRECI,

Petitioner Rlewe=4er L. Stevas, Clerk

vs.

STATE OF FLORIDA,

Respondent,

MOTION TO LEAVE TO PROCEED

IN FORMA PAUPERIS

The Petitioner, HENRY PERRY SIRECI, who is now

imprisoned in the custody of the Florida Department of

Corrections, asks leave to file the accompanying Petition for

a Writ of Certiorari to the Supreme Court of Florida without

pre-payment of costs and to proceed in forma pauperis pursuant

to Rule 46.

The Petitioner's affidavit in support of this

motion is attached hereto.

Respectfully submitted,

\

\

\ SRATG'§< "BARNARD

Chief Sistant Public Defender

15th Judicial Circuit of Florida

224 Datura Street/l3th Floor

West Palm Beach, Florida 3340]

(305) 837-2150

No. SEP 10 lnol

OFFICE OF Thic Viel

IN THE SUPREME COURT, U.S.

SUPREME COURT OF THE UNITED STATES Supreme Court, US.

October Term, 1980 FILED

SEP g 1981

HENRY PERRY SIRECI, Aleander L. Stevas, Clerk

Petitioner,

Vv.

STATE OF FLORIDA,

Respondent.

AFFIDAVIT

I, HENRY PERRY SIRECI, being first duly sworn according

to law, depose and say, in support of my motion for leave to

proceed without being required to prepay costs or fees:

1. I am the petitioner in the above-entitled case.

2. Because of my property I am unable to pay the costs

of said cause.

3. I am unable to give security for the same.

4. I believe that I am entitled to the redress I seek

in said case.

5. The nature of said cause is briefly stated as

follows:

I was ccnvicted of first degree murder and sentenced to

death by the Circuit Court for Orange County, Florida. I appealed

the judgment of conviction and the sentence of death to the

Florida Supreme Court; that court affirmed both the judgment and

sentence. I am now petitioning for a writ of certiorari to

the Supreme Court of the United States.

a -

; 4

Duly witnessed a sworn to before me this

NOTARY PUBLIC, STATE OF FLOMDA AT LARGE