Kimbrough v. State

700 So. 2d 634, 1997 WL 476100
CourtSupreme Court of Florida
DecidedAugust 21, 1997
Docket84989
StatusPublished
Cited by17 cases

This text of 700 So. 2d 634 (Kimbrough 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
Kimbrough v. State, 700 So. 2d 634, 1997 WL 476100 (Fla. 1997).

Opinion

700 So.2d 634 (1997)

Darius Mark KIMBROUGH, Appellant,
v.
STATE of Florida, Appellee.

No. 84989.

Supreme Court of Florida.

August 21, 1997.
Rehearing Denied October 21, 1997.

*635 James B. Gibson, Public Defender and George D.E. Burden, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, for appellant.

Robert A. Butterworth, Attorney General and Mark S. Dunn, Assistant Attorney General, Tallahassee, for appellee.

PER CURIAM.

We have on appeal the judgment and sentence of the trial court imposing the death penalty upon Darius Mark Kimbrough. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Kimbrough was convicted of first-degree murder, burglary of a dwelling with a battery therein, and sexual battery with great force and was sentenced to death consistent with a jury recommendation of eleven to one. The victim, Denise Collins, was found nude and semi-conscious in her bathroom by paramedics; she was covered with blood. The sliding glass door to her second floor apartment was partially open, and there were some ladder impressions under the balcony. Collins was rushed to the hospital, where she died soon thereafter.

The officers took semen evidence from the bedsheets, took blood evidence from the victim, and found pubic hairs in the bed and in a towel. The samples were sealed in a bag and sent to the Florida Department of Law Enforcement lab for analysis.

A resident of the apartment complex— Lee—told officers that he had twice seen a man in the vicinity of the apartment and had seen a ladder on the apartment's balcony. Officers were unsuccessful in searching for the man, but later Lee identified Kimbrough from a picture lineup. A workman in the complex—Stone—identified Kimbrough as a man who had watched him putting away a ladder in the complex around the time of the murder.

The DNA evidence showed that the semen taken from the bedsheets was compatible *636 with Kimbrough's, and some of the pubic hairs matched his. There were, however, additional pubic hairs from another unidentified black man and a caucasian male. The DNA evidence indicated that the blood samples taken from the bed matched Kimbrough's.

The medical examiner testified at trial that the victim had a fractured jaw and fracturing around her left temple. The cause of death was hemorrhaging and head injury in the brain area resulting from blunt injury to the face. There was also evidence of vaginal injury, including tears and swelling consistent with penetration. There were bruises on her arms.

The defense's theory suggested that the victim's ex-boyfriend—Gary Boodhoo—had committed the crime since he was with the victim shortly before, had used a ladder before at her apartment, had a key, and had beaten her previously. The evidence of prior beating was excluded.

In the sentencing order, the judge listed three aggravators: prior violent felony, committed during the course of a felony, and heinous, atrocious, or cruel (HAC). To support the prior violent felony aggravator, the judge cited Kimbrough's prior convictions for both burglary of a dwelling with battery therein and sexual battery. The court found that the murder here was committed during sexual battery or attempt to commit sexual battery, citing DNA evidence and bruising, as well as evidence that the victim and defendant did not know each other. HAC was supported by the size of the victim, the three blows to her head causing fracture by blunt force, evidence of a struggle (the room was in disarray), and the amount of blood found around the room.

The judge considered age as a statutory mitigator (Kimbrough was nineteen), but rejected it because there was no evidence establishing that he was immature or impaired. The court considered the following nonstatutory mitigation: Kimbrough had an unstable childhood, maternal deprivation, an alcoholic father, a dysfunctional family, and a talent for singing. The court found that the mitigation did not temper the aggravators.

Kimbrough presents eight issues on appeal: (1) the evidence was legally insufficient to support the verdict; (2) it was error to prohibit introduction of defense testimony about other crimes or bad acts; (3) it was an abuse of discretion for the judge not to find the statutory mitigator of age at the time of the offense; (4) the death sentence was disproportionate and there was an improper weighing of mitigators; (5) there was an erroneous instruction on and finding of HAC; (6) it was error to excuse for cause one qualified juror over defense objection; (7) it was error to find that the murder was committed during sexual battery; and (8) section 921.141, Florida Statutes (1993), is unconstitutional. We find no merit to Kimbrough's arguments.

We have conducted an independent review of the entire record before us, and find competent and substantial evidence to support the juries' verdict and sentence. We therefore reject Kimbrough's contention in issue 1 that the evidence at trial was legally insufficient to support the verdict, but we briefly address three of the points he raises in this issue: Kimbrough argues that the evidence was insufficient because it was all circumstantial, that the DNA evidence was inadmissible for lack of a proper Frye inquiry,[1] and that there was insufficient evidence of premeditation.

We have established that circumstantial evidence is not a bar to conviction:

Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse.

State v. Law, 559 So.2d 187, 188 (Fla.1989) (citations omitted). There is substantial, *637 competent evidence supporting the jury's guilty verdict.

Kimbrough's argument that the DNA evidence is inadmissible is also without merit. In Correll we wrote:

[W]hen scientific evidence is to be offered which is of the same type that has already been received in a substantial number of other Florida cases, any inquiry into its reliability for purposes of admissibility is only necessary when the opposing party makes a timely request for such an inquiry supported by authorities indicating that there may not be general scientific acceptance of the technique employed.

Correll v. State, 523 So.2d 562, 567 (Fla. 1988); see also Henyard v. State, 689 So.2d 239, 248 (Fla.1996); Washington v. State, 653 So.2d 362, 365 (Fla.1994); Robinson v. State, 610 So.2d 1288, 1291 (Fla.1992). Here, there was no timely request for an inquiry as required by Correll. Thus, we find no abuse of discretion in allowing the evidence at trial.

Kimbrough also argues that there was insufficient evidence of premeditation. The jury was instructed on both premeditated and felony murder. Also, the judge specifically ruled that the allegations were sufficient to support either charge. The circumstances surrounding this killing provide ample evidence in support of either theory upon which the jury could have based its verdict. We find no merit to this argument.

Kimbrough's contention in issue 2 is that the trial judge erred by prohibiting defense testimony about other crimes or bad acts committed by Boodhoo, the victim's ex-boyfriend.

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Bluebook (online)
700 So. 2d 634, 1997 WL 476100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kimbrough-v-state-fla-1997.