Bonifay v. State

680 So. 2d 413, 1996 WL 385504
CourtSupreme Court of Florida
DecidedJuly 11, 1996
Docket84918
StatusPublished
Cited by62 cases

This text of 680 So. 2d 413 (Bonifay v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bonifay v. State, 680 So. 2d 413, 1996 WL 385504 (Fla. 1996).

Opinion

680 So.2d 413 (1996)

James Patrick BONIFAY, Appellant,
v.
STATE of Florida, Appellee.

No. 84918.

Supreme Court of Florida.

July 11, 1996.
Rehearing Denied September 5, 1996.

*414 Michael R. Rollo, Pensacola, for Appellant.

Robert A. Butterworth, Attorney General and Curtis M. French, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

James Patrick Bonifay appeals the death sentence imposed upon him at resentencing. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm.

Bonifay was convicted of first-degree murder, armed robbery, and grand theft. The facts surrounding these crimes are set forth in Bonifay v. State, 626 So.2d 1310 (Fla. 1993). Following the jury's recommendation, the trial court sentenced Bonifay to death. On appeal, we affirmed the convictions but *415 vacated the death sentence because the trial court improperly found that the murder was heinous, atrocious, or cruel. We then remanded the case to the trial court to conduct a new sentencing proceeding before a jury. Id. at 1313.

After hearing evidence and argument, the resentencing jury recommended death for Bonifay by a vote of ten to two. The trial court followed that recommendation, finding that the aggravating circumstances[1] outweighed the mitigating circumstances.[2]

On appeal, Bonifay raises the following eight issues with regard to his sentence: (1) the trial court failed to make a specific finding regarding the expert testimony about the defendant's organic brain damage and whether that brain damage substantially impaired the defendant's ability to appreciate the criminality of his acts or to conform his conduct to the requirements of law; (2) the evidence does not support the death sentence; (3) the trial court erred in finding that the defendant is not capable of rehabilitation; (4) the prosecutor's repeated biblical references unduly influenced the jury; (5) the trial court erred in not declaring a mistrial when the prosecutor urged the jury to exterminate the defendant; (6) the trial court erred in allowing the State to introduce evidence of the victim's begging for his life; (7) the trial court erred in allowing the State to introduce improper victim-impact evidence; and (8) the cumulative effect of trial court's combined errors was prejudicial and fundamental error. We find no merit in any of these issues and affirm the death sentence.[3]

First, we turn to Bonifay's issue 1: whether the sentencing order in this case is deficient because the trial court erred in failing to cite Bonifay's organic brain damage. At the resentencing, Dr. James Larson, a psychologist, testified regarding Bonifay's mental condition. After administering several psychological tests and reviewing other records, Dr. Larson opined that Bonifay suffered from attention deficit disorder. Dr. Larson further stated that based on this finding, it was his impression that Bonifay suffered organic brain damage.[4] Bonifay contends that the trial court's failure to expressly note this brain damage, combined with its failure to address whether this condition affected Bonifay's capacity to appreciate *416 the criminality of his conduct, made the sentencing order deficient.

The trial court, in considering allegedly mitigating evidence, must determine whether the facts alleged in mitigation are supported by the evidence. See Rogers v. State, 511 So.2d 526, 534 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988). After making this factual determination, the trial court must then determine whether the established facts are of a kind capable of mitigating the defendant's punishment.[5] The decision as to whether a mitigating circumstance has been established is within the trial court's discretion. See Preston v. State, 607 So.2d 404 (Fla.1992), cert. denied, 507 U.S. 999, 113 S.Ct. 1619, 123 L.Ed.2d 178 (1993); Lucas v. State, 568 So.2d 18 (Fla.1990).

To support his position, Bonifay relies on Larkins v. State, 655 So.2d 95 (Fla.1995). In Larkins, a psychologist for the defense testified that the defendant suffered both a mental and an emotional disturbance and that the defendant's organic brain damage impaired his capacity to control his conduct. Id. at 100. Additionally, the expert testified about the defendant's personal history, which the defendant claimed established other nonstatutory mitigating circumstances. However, the trial court's order made only a cursory reference to the psychologist's testimony and did not explain whether the court found any statutory mitigating circumstances based on this testimony. The order in Larkins also summarily rejected all nonstatutory mitigating circumstances. Id. at 100-01.[6] Finding that the trial court's order was inconsistent with the mitigating evidence presented, we directed the trial court to reevaluate its sentencing order consistent with the requirements of Campbell v. State, 571 So.2d 415 (Fla.1990).[7]

Contrary to the deficient sentencing order in Larkins, the trial court's order in this case expressly addressed the testimony regarding this mitigator. The trial court found:

Patrick Bonifay's mother testified he had problems in school, he was extremely overactive and disruptive, and he had a lot of behavior problems. He took Ritalin in one of his ninth grade years and was expelled once. He admitted to Dr. Gilgun he was expelled for breaking another student's jaw in a fight at Escambia High School.
Dr. James Larson, a Psychologist, evaluated Bonifay prior to the new penalty phase proceeding and administered a number of psychological tests on him. He determined Bonifay's verbal IQ was 98— which is in the average range—and his performance IQ was 117. This 19 point difference indicated to Dr. Larson that Bonifay had some cognitive disorder, such as attention deficit disorder. He confirmed that the school identified in about *417 the fifth grade that Bonifay had an attention deficit disorder and placed him in an emotionally handicapped classroom for a number of years. This disorder means Bonifay's ability to attend and concentrate is impaired. Also, Dr. Larson found Bonifay to exhibit impulsive behavior as a part of his attention deficit disorder.
Additionally, Dr. Larson testified Bonifay had a dysthymic disorder, referring to depression. He said it is at a level which is chronic, but not present every day and it is "a very common disorder seen in the general population." Dr. Larson also said Bonifay exhibited a personality disorder, referring to a personality functioning that is unstable, exhibiting mood swings, possible irrationality, difficulty maintaining good relationships, and susceptibility to being easily guided by another. According to Dr. Larson, Bonifay has a negative self-image as a result of his disruptive home environment, which included his biological father's abuse of him and his mother. In turn, Bonifay feels rejected and is an angry person, in conflicts with peers and with authority figures.
Finally, Dr. Larson noted Bonifay has a history of suicidal ideation and perhaps two or three attempts or gestures. Yet, he acknowledged some of Bonifay's medical records reveal he denied suicide ideations.
In terms of talents, Dr.

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Bluebook (online)
680 So. 2d 413, 1996 WL 385504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bonifay-v-state-fla-1996.