Penn v. State

574 So. 2d 1079, 1991 WL 6549
CourtSupreme Court of Florida
DecidedJanuary 15, 1991
Docket74123
StatusPublished
Cited by38 cases

This text of 574 So. 2d 1079 (Penn 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
Penn v. State, 574 So. 2d 1079, 1991 WL 6549 (Fla. 1991).

Opinion

574 So.2d 1079 (1991)

James Randall PENN, Appellant,
v.
STATE of Florida, Appellee.

No. 74123.

Supreme Court of Florida.

January 15, 1991.
Rehearing Denied March 4, 1991.

*1080 Nancy Daniels, Public Defender and W.C. McLain, Asst. Public Defender, Second Judicial Circuit, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Richard B. Martell, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

James Randall Penn appeals his conviction of first-degree murder and sentence of death. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. Although we affirm Penn's conviction, we vacate his death sentence and remand for imposition of life imprisonment with no possibility of parole for twenty-five years.

Penn, who was estranged from his wife, and his two-year-old son moved into his mother's home less than two weeks before this murder. On the night in question Penn brought his son back to the house late in the evening and put him to bed, apparently after his mother was asleep. He then left the house looking for drugs to buy, returned to the house and took a bottle of liquor, left again, and then came back and stole some jewelry from the bedroom where his mother was sleeping. Later, he returned yet again, took a hammer from the laundry room, beat his mother to death, and stole numerous items from the house. Penn purchased items with his mother's credit cards and pawned items stolen from her home. The state produced witnesses to those transactions who testified that Penn did not appear to be intoxicated. Penn did not testify, but, after his arrest the following day, he made four confessions. In those confessions, among other things, he said he stole his mother's property so that he could exchange it for crack cocaine and that he had consumed six or seven pieces of the drug during the night and had been under the drug's influence up to the time of his arrest. The state indicted him for first-degree murder and robbery with a deadly weapon. The jury convicted him of grand theft and first-degree murder and recommended that he be sentenced to death, which the trial court did.

During jury selection, the judge denied Penn's challenge for cause of two prospective jurors, and Penn used peremptory challenges to remove them from the panel. After Penn exhausted his allotted peremptory challenges, he requested ten more, based on the prospective jurors' knowledge of the case.[1] The state objected, and the judge denied the request for more peremptory challenges. Now, Penn argues that he should receive a new trial because the judge improperly denied the two challenges for cause, thereby forcing him to use two peremptory challenges. We disagree.

The first prospective juror indicated that he strongly favored the death penalty. On further questioning by the judge and prosecutor, however, he said he would follow the law as instructed. The second prospective juror stated that, because her father was *1081 an alcoholic, she did not have much sympathy for people who had voluntary chemical dependencies. She acknowledged, however, that a person could be so intoxicated as not to know what he was doing and stated that she would follow the court's instructions. We find no abuse of the trial court's discretion in refusing to excuse these prospective jurors for cause because they ultimately demonstrated their competency by stating that they would base their decisions on the evidence and instructions. Pentecost v. State, 545 So.2d 861 (Fla. 1989); Cook v. State, 542 So.2d 964 (Fla. 1989).

Even assuming that the court erred in refusing to excuse these prospective jurors, however, we would find such error harmless because Penn has shown no prejudice, i.e., that he had to accept an objectionable juror. This Court has long held

that the action of the court in holding a juror to be qualified over defendant's objection works no injury to the accused if the objectionable venireman does not serve, even though the accused exhausted his statutory number of peremptory challenges, when it does not also appear that any objectionable juror was selected after the defendant's challenges were exhausted. The reason given for the rule is that the accused has a right to an impartial jury but is not entitled to any particular persons as jurors.
In a case where an objectionable juror is challenged by the defendant for cause and the court wrongfully overrules the challenge and the defendant uses one of his peremptory challenges to excuse the objectionable venireman, the record should show that the jury finally impaneled contained at least one juror objectionable to the defendant, who sought to excuse him peremptorily but the challenge was overruled.

Young v. State, 85 Fla. 348, 354, 96 So. 381, 383 (1923). Accord Trotter v. State, No. 70,714 (Fla. 1990); Floyd v. State, 569 So.2d 1225 (Fla. 1990); Pentecost; Rollins v. State, 148 So.2d 274 (Fla. 1963); McRae v. State, 62 Fla. 74, 57 So. 348 (1912). The United States Supreme Court recently echoed Young's reasoning and conclusions in Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). Penn relies on Moore v. State, 525 So.2d 870 (Fla. 1988), and Hill v. State, 477 So.2d 553 (Fla. 1985), but those cases are distinguishable from the instant case. Penn never objected to any of the jurors after exhausting his peremptories and has not alleged, let alone demonstrated, that an incompetent juror sat on his jury. We therefore find no merit to this point on appeal.

Penn claimed to have been intoxicated by crack cocaine during the night he killed his mother and moved for acquittal on the first-degree murder charge.[2] As a basis for the motion, Penn argued that because the jury found him not guilty of the underlying felony of robbery he could not have been convicted of first-degree felony murder and that because voluntary intoxication is a defense to first-degree premeditated murder the state had not proved premeditation. The court denied the motion, and Penn appeals that denial.

Premeditation can be shown by circumstantial evidence. Whether or not the evidence shows a premeditated design to commit a murder is a question of fact for the jury. Preston v. State, 444 So.2d 939 (Fla. 1984). This Court has previously stated:

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.

*1082 Sireci v. State, 399 So.2d 964, 967 (Fla. 1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982). Accord Heiney v. State, 447 So.2d 210 (Fla.), cert. denied, 469 U.S. 920, 105 S.Ct. 303, 83 L.Ed.2d 237 (1984). The court instructed the jury on premeditation and on voluntary intoxication, and the jury obviously believed the state's evidence rather than the defense's theory of voluntary intoxication.[3]

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Bluebook (online)
574 So. 2d 1079, 1991 WL 6549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/penn-v-state-fla-1991.