Morton v. State

789 So. 2d 324, 2001 WL 721089
CourtSupreme Court of Florida
DecidedJune 28, 2001
DocketSC95171
StatusPublished
Cited by55 cases

This text of 789 So. 2d 324 (Morton 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
Morton v. State, 789 So. 2d 324, 2001 WL 721089 (Fla. 2001).

Opinion

789 So.2d 324 (2001)

Alvin Leroy MORTON, Appellant,
v.
STATE of Florida, Appellee.

No. SC95171.

Supreme Court of Florida.

June 28, 2001.

*327 James Marion Moorman, Public Defender, and Paul C. Helm, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Appellant.

Robert A. Butterworth, Attorney General, and Scott A. Browne, Assistant Attorney General, Tampa, FL, for Appellee.

PER CURIAM.

We have on appeal a trial court order imposing two death sentences upon Alvin LeRoy Morton following resentencing. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm the death sentences.

Morton was convicted of two counts of first-degree murder stemming from the 1992 deaths of fifty-five-year-old John Bowers and Bowers' seventy-five-year-old mother, Madeline Weisser. Morton was nineteen years old at the time of the murders. The facts established during the guilt phase of Morton's trial are set forth in this Court's opinion in Morton v. State, 689 So.2d 259, 260-61 (Fla.1997):

*328 In the late evening of January 26 or early morning of January 27, 1992, appellant Alvin LeRoy Morton, accompanied by Bobby Garner and Tim Kane, forcibly entered the home of John Bowers and his mother Madeline Weisser. Two other individuals, Chris Walker and Mike Rodkey, went with them to the house but did not enter. Morton carried a shotgun and one of the others possessed a "Rambo" style knife. They began looking around the living room for something to take when Bowers and Weisser entered the room from another area of the house. Morton ordered the two of them to get down on the floor, and they complied. Bowers agreed to give them whatever they wanted and pleaded for his life but Morton replied that Bowers would call the cops. When Bowers insisted that he would not, Morton retorted, "That's what they all say," and shot Bowers in the back of the neck, killing him. Morton also attempted to shoot Weisser, but the gun jammed. He then tried to stab her, but when the knife would not penetrate, Garner stepped on the knife and pushed it in. Weisser ultimately was stabbed eight times in the back of the neck and her spinal cord was severed. Before leaving the scene, either Garner or Morton cut off one of Bowers' pinky fingers. They later showed it to their friend Jeff Madden.

Acting on a tip, police and firefighters went to the victims' residence, where the mattresses had been set on fire, and discovered the bodies. Morton was later found hiding in the attic of his home. The murder weapons were discovered underneath Garner's mother's trailer. Morton later confessed to shooting Bowers and helping make the first cut on Weisser.

Morton was convicted on both counts of first-degree premeditated murder.

On appeal, this Court vacated the sentences of death, holding that the State improperly impeached its own witnesses with their prior inconsistent statements during the guilt and penalty phases of trial and then argued during closing argument that the jury should accept the content of the impeachment statements as true. See id. at 264. Accordingly, "[i]n view of the inherent confusion engendered by the repeated impeachment and the prosecutor's closing argument," we held that we could not conclude that the jury's recommendation of death was reliable. Id. at 265. Thus, we remanded the case to the trial court for a new penalty phase hearing before a new jury. See id.

At the conclusion of the new penalty phase proceedings, the jury recommended two death sentences for the murders of Bowers and Weisser, each by a vote of eleven to one. Finding that the aggravating circumstances outweighed the mitigating circumstances, the trial court imposed a death sentence for the murder of each victim.

With regard to the murder of Bowers, the trial court found the following aggravating circumstances, each of which the court assigned great weight: (1) the murder had been committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification ("CCP"); (2) the homicide was committed while Morton was engaged in the commission of, or an attempt to commit, a robbery or burglary or both; and (3) the homicide was committed for the dominant purpose of avoiding or preventing a lawful arrest. With regard to the murder of Weisser, the trial court found the following aggravating circumstances, which the court also gave great weight: (1) the homicide was committed in an especially heinous, atrocious, or cruel manner ("HAC"); (2) Morton was *329 previously convicted of another capital felony, i.e. murdering Bowers; (3) CCP; (4) the homicide was committed while Morton was engaged in the commission of, or an attempt to commit, a robbery or burglary or both; and (5) the homicide was committed for the dominant purpose of avoiding or preventing a lawful arrest.

As to mitigation, the trial court found and weighed the following statutory mitigators: (1) Morton's age of nineteen (little weight); and (2) Morton's lack of significant history of prior criminal activity (some weight). In nonstatutory mitigation, the trial court found: (1) Morton was a product of a dysfunctional family (little weight); (2) Morton had minimal physical contact with his mother during the first four weeks of his life (little weight); (3) Morton's family moved in and out of state on a regular basis, disrupting any stable home and social life (little weight); (4) Morton suffered from repeated physical and mental abuse committed by his alcoholic father up until Morton was eight years old (little weight); and (5) Morton voluntarily confessed and cooperated with the police (little weight).

On appeal, Morton presents the following four claims: (1) the State made numerous improper comments during closing argument in the penalty phase of the trial that entitle him to a new penalty phase; (2) the trial court failed to consider, find, and weigh mitigating evidence that Morton suffered from antisocial personality disorder; (3) the trial court erred in giving diminished weight to the mitigating circumstances of Morton's age and history as an abused child; and (4) the resentencing judge erred by adopting the original sentencing judge's findings of fact regarding the aggravating and mitigating circumstances. We address each issue in turn.

THE STATE'S CLOSING ARGUMENT

Morton claims that the State made five improper arguments during the penalty phase closing argument and that these improper arguments warrant a new penalty proceeding. In response, the State argues that Morton's challenges to the State's closing argument are procedurally barred because Morton failed to assert a contemporaneous objection to any of the allegedly improper comments during closing argument.

As a general rule, "failing to raise a contemporaneous objection when improper closing argument comments are made waives any claim concerning such comments for appellate review." Brooks v. State, 762 So.2d 879, 898 (Fla.2000); accord McDonald v. State, 743 So.2d 501, 505 (Fla.1999); Chandler v. State, 702 So.2d 186, 199 (Fla.1997). The exception to this general rule is where the unobjected-to comments rise to the level of fundamental error, which this Court has defined as "error that `reaches down into the validity of the trial itself to the extent that a verdict of guilty or jury recommendation of death could not have been obtained without the assistance of the alleged error.'" Brooks, 762 So.2d at 899 (quoting McDonald, 743 So.2d at 505); accord Chandler, 702 So.2d at 191.

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Bluebook (online)
789 So. 2d 324, 2001 WL 721089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morton-v-state-fla-2001.