Gibson v. State

351 So. 2d 948
Supreme Court of Florida·Decided July 28, 1977·No. 48698·Published·Cited by 37 cases

Opinion

351 So.2d 948 (1977)

Richard Henry GIBSON, Appellant,
v.
STATE of Florida, Appellee.

No. 48698.

Supreme Court of Florida.

July 28, 1977.
Rehearing Denied December 5, 1977.

Louis G. Carres, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and Jeanne Dawes Schwartz, Asst. Atty. Gen., for appellee.

PER CURIAM.

Appellant, Richard Henry Gibson, was charged by indictment with the premeditated *949 murder of Antonio Chumbo.[1] The jury found appellant guilty as charged and recommended that he be sentenced to death. The trial court so ordered. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution. After careful review of the entire record, we affirm the judgment and the sentence.

The facts are as follows: On the evening of May 9, 1975, Antonio Chumbo and Pedro DeMedeiros, two Brazilian seamen whose ship, the Itapua, was docked in Jacksonville, Florida, left their ship to go into the city. During the course of the evening, they had several beers at various bars in town. While they were in one of the bars, their activities were observed by appellant and his companion, Thomas Lee Calvin, and together they conceived a plan to "roll" the sailors. To aid them in their plan, they enlisted the assistance of Delores Walker. Appellant explained to Miss Walker what she was to do and where she was to take the two men. Walker then enlisted the assistance of another young woman, Wanda Payton. Miss Payton was apparently unaware of the planned robbery.

Later that evening, the two women struck up an acquaintance with the sailors and invited them to their house to spend the night. On the morning of May 10, 1975, shortly after midnight, Chumbo and DeMedeiros got into a car with Gibson, Payton, and Walker. After they had traveled a short distance, Walker, who was driving, turned down a dark street and stopped the car. Gibson directed the two men to get out of the car and to hand over their money. As Chumbo got out of the car, offering his money and begging not to be shot, Gibson shot him twice in the head. DeMedeiros was also shot but was not fatally wounded.

Appellant does not challenge his conviction.[2] All assignments of error are directed to the sentencing portion of the trial.

The sentencing proceeding in this case consisted solely of arguments of counsel. No evidence was presented. As it appears in the record, appellant's counsel's remarks to the jury were very brief:

MR. DEMPSEY: May it please the Court.
Ladies and gentlemen, I am going to assure you that I do not believe I will be here five minutes. I do not think that, in the light of three days that we have been here, it takes a great deal to be said, at this time.
I do want to comment on several things that Mr. Austin has said. He read you what purports to be some statements out of some transcripts. One, supposedly, made by Mr. DeMedeiros and one made by Wanda Payton.
I call your attention to the fact that Mr. DeMedeiros cannot speak English; I think the testimony was that Mr. Chumbo could barely speak English so if Mr. Chumbo was speaking English, I suggest to you Mr. DeMedeiros wouldn't know what he was saying.
Then, Wanda Payton testified to you she couldn't understand either one of them. Based on what you have heard in this case up until this point in time, I do not think it is necessary to pursue this thing. I think you have heard the facts; we can stand up here and argue until we are purple in the face.
Mr. Austin indicated how can you stop this behavior in the community. Ladies and gentlemen, I will submit to you that you won't stop this kind of behavior in the community by convicting one and letting two go.
I have nothing further, Your Honor.

Based on these remarks, appellant argues that he received ineffective assistance of counsel at the advisory portion of the trial. Appellant specifically points to counsel's failure to offer facts in mitigation.

*950 This point is raised for the first time on appeal and was not previously ruled upon by the court below. In State v. Barber, 301 So.2d 7 (Fla. 1974), we held that the issue of adequacy of representation by counsel cannot properly be raised at this time. Except where the error is fundamental, an appellate court must confine itself to a review of those questions which were before the trial court and upon which a ruling adverse to the appealing party was made. Ashford v. State, 274 So.2d 517 (Fla. 1973); Silver v. State, 188 So.2d 300 (Fla. 1966). In any event, the alleged incompetence must be such that the trial was reduced to a mockery or a sham. Parker v. State, 295 So.2d 312 (Fla. 1st DCA 1974); McCrae v. State, 313 So.2d 429 (Fla. 3d DCA 1975); Biggs v. United States, 318 F. Supp. 212 (N.D.Fla. 1970). There is nothing in the record to support such a finding by this court. It is probable that appellant's counsel offered nothing in mitigation because there was nothing to offer. This is substantiated by the findings of the trial judge. Having had the additional benefit of a presentence investigation report, she determined that there were no mitigating circumstances. Counsel is not required to manufacture facts or arguments where none exist.

We reject appellant's contention that Section 921.141, Florida Statutes (1975), is unconstitutional on the basis of State v. Dixon, 283 So.2d 1 (Fla. 1973).

We also reject the argument that appellant was denied fundamental due process of law when:

(a) The prosecutor was permitted to argue to the jury that they should recommend the death penalty as a deterrent to crime;
(b) The prosecutor was permitted to argue to the jury that the testimony was overwhelming and uncontradicted that appellant "pulled the trigger"; and
(c) The prosecutor was allowed opening and closing arguments to the jury in the sentencing portion of the trial.

The comments of the prosecutor regarding the deterrent effect of the death penalty, read in context, were not so prejudicial as to require a new trial.[3]Darden v. State, 329 So.2d 287 (Fla. 1976). Furthermore, appellant is precluded from asserting this argument since he failed to object to the allegedly improper prosecutorial comments at trial. Songer v. State, 322 So.2d 481 (Fla. 1975); State v. Jones, 204 So.2d 515 (Fla. 1967); Tillman v. State, 44 So.2d 644 (Fla. 1950).

*951 The comments referred to in point (b)[4] had a basis in the record and were therefore proper. Songer v. State, supra; Wade v. Wainwright, 266 So.2d 378 (Fla. 4th DCA 1972); Roundtree v. State, 229 So.2d 281 (Fla. 1st DCA 1969).

As to point (c), appellant's counsel not only failed to object to the procedure but acquiesced in it after full discussion with the prosecutor and the bench.

A more serious question is raised by appellant's contention that the trial judge improperly weighed the aggravating and mitigating circumstances in arriving at a sentence. Three circumstances were listed in aggravation:[5]

1. The murder was committed during the commission of an armed robbery. Section 921.141(5)(d), Florida Statutes (1975).
2. The murder was committed for pecuniary gain. Section 921.141(5)(f), Florida Statutes (1975).

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