Dobbert v. State, 328 So. 2d 433 (Fla. 1976)

PER CURIAM.

Appellant was indicted on two counts of murder in the first degree and two counts of child torture in that he did commit various assaults upon Kelly Ann Dobbert including kicking, choking, and torturing her with his hands and feet and by use of other instruments and weapons and that from a premeditated design to effect death, he inflicted mortal injuries upon Kelly Ann which resulted in her death; in that he committed various assaults upon Ryder Scott Dobbert and from premeditated design to effect Ryder Scott’s death, he inflicted mortal injuries resulting in Ryder Scott’s death; in that he willfully tortured, mutilated, cruelly, wantonly and maliciously punished and tormented Honoré Elizabeth Dobbert, a child, five years of age, and in committing battery upon her did intentionally and knowingly cause great bodily harm, permanent disability and permanent disfigurement to Honoré; and in that he willfully tortured, mutilated, cruelly, wantonly, maliciously, and unlawfully punished and tormented Ernest John Dobbert, III, which caused serious bodily harm, permanent disability and permanent disfigurement to Ernest John, III, a child of eleven years of age. Appellant moved to dismiss the indictment which motion was denied as to counts one and two charging murder in the first degree but was granted as to counts three and four charging child torture. Subsequently, the Grand Jury returned an amended indictment charging two counts of murder in the first degree and two counts of child torture. A motion by appellant to sever counts one and two from the indictment was denied. Appellant filed a motion and affidavit for change of venue which alleged, inter alia, that defendant stands accused of acts inherently odious and subject to inflammatory exploitation by the press and that as a consequence of extensive publicity, the possibility of prejudice to him was great. The trial court, before ruling on a change of venue, entered an order which he stated was binding upon everyone occupying an official position having to do with this case including the State Attorney, and all of his assistants and employees, the Sheriff and all of his deputies and employees, the Clerk of the Circuit Court and all of his deputies and employees, the public defender and all of his assistants and employees, the defendant, all of the officers of this court, the witnesses for the State and the defense and anyone else connected with this case. Thereby, he ordered that none of the named persons will release any statement about this case to any news media at any time before or during this trial until it shall have been completed and disposed of. After hearing, he then took the motion for change of venue under advisement until after jury selection was attempted.

Pursuant to Rule 3.152(a) (2) (i), F.Cr. P.R., appellant moved to sever each of the four counts of the indictment, which motion was denied. The jury was selected, after which the judge denied the motion for change of venue. A lengthy trial was held, after which the jury returned verdicts of guilty of murder in the first degree of Kelly Ann Dobbert, guilty of murder in the second degree of Ryder Scott Dobbert, guilty of child torture of Ernest John Dobbert, III, and guilty of child abuse of Honoré Elizabeth Dobbert. The jury returned an advisory sentence finding that sufficient aggravating circumstances did not exist to justify a sentence of death and that sufficient mitigating circumstances exist to warrant imposition of a

life sentence. Motion for new trial was denied and defendant was adjudicated guilty of each of the four counts of which he was found guilty.

The trial court imposed the maximum penalties for the crimes of murder in the second degree, child torture, and child abuse, which sentences are to run consecutively and total forty-six years;1 and after closely examining and writing extensive findings as to each of the elements of aggravation and/or mitigation set out by law, the trial judge imposed the sentence of death for the first degree murder. He analyzed each individual mitigating and aggravating factor in detail and gave full explanation for his decision to impose the death penalty. Because of their importance to the decision of this cause, the findings enumerated by the trial judge must be set out herein. Relative to the mitigating circumstance of whether the defendant has no significant history of prior criminal activity, the trial court found as follows:

tivity towards the children in both Wisconsin and Jacksonville, Florida.”

Relative to the mitigating circumstance of whether the murder was committed while defendant was under the influence of extreme mental or emotional disturbance, the trial judge determined:

and concluded that there is no mitigating circumstance under this paragraph. The trial judge determined that the mitigating factor of whether the victim was a participant in the defendant’s conduct or consented to the act did not exist since “The defendant murdered his own nine year old daughter, Kelly Ann Dobbert by continuous beatings, kicking, hitting with fist and other objects, choking, sewing up her cuts with needle and thread and other torture and depriving her of medical care and finally murdered her, placed her body in a plastic garbage bag and buried her in an unknown and unmarked grave.” As to the mitigating circumstance of whether the defendant was an accomplice in the murder committed by another person, the trial judge found:

As to question of whether defendant acted under extreme duress or under the substantial domination of another, the trial court determined:

the children because on a visit the defendant told her of the injuries suffered by the children and his punishment of them. Her influence, if any, was for him to look after and protect the children.

After extensive written evaluation of the testimony of the psychiatrists, and as supported thereby, the trial judge concluded that defendant was mentally competent and able to understand the nature, quality and wrongfulness at the time of the crimes and had average intelligence. The trial court found no mitigating factor in defendant’s age; he was a man of mature physical and mental years and of average intelligence. In general, the trial court concluded that there were no mitigating circumstances. The trial judge then proceeded to analyze each of the statutorily enumerated aggravating circumstances as they applied to this cause. In particular, as to the especially heinous, atrocious, and cruel nature of the murder of which defendant has been convicted, the trial court found, as follows:

prevented any outsiders from discovering her condition.

and found that the aggravating circumstances were sufficient and great to warrant the imposition of the death penalty.

Appellant initially claims reversible error in that the trial court denied his request that instructions on attempts be given pursuant to Rule 3.510, F.Cr.P.R. To this request, the trial judge responded:

Rule 3.510, F.Cr.P.R., provides:

Relative to instructions as to attempts to commit charged offenses, this Court in Brown v. State, 206 So.2d 377 (Fla.1968), explained:

Accord: State v. Washington, 268 So.2d 901 (Fla.1972), and Rayner v. State, 273 So.2d 759 (Fla. 1973).

Appellee posits that the failure of the trial court to instruct on law of attempt, in the instant case, does not constitute reversible error. Citing this Court’s decision in DeLaine v. State, 262 So.2d 655 (Fla. 1972), as authority for its position, appellee submits and we agree that the trial court’s noncompliance with Brown, supra, and Rule 3.510, F.Cr.P.R., was error but was harmless error. In DeLaine, supra, the defendants had been charged, tried and convicted of rape. Therein, this Court found that the trial court erred in refusing to give the requested charge on assault and battery which under the language of Brown, supra, constitutes a necessarily included offense; however, this Court in DeLaine, supra, applied the harmless error statute, explicitly opining:

after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant. It shall not be presumed that error injuriously affected the substantial rights of the appellant.’

Cf. North v. State, 65 So.2d *77* (Fla. 1963), application of harmless error to death cases.

The record, sub judice, shows that the jury was instructed on murder in the first degree, murder in the second degree, murder in the third degree, manslaughter, and justifiable and excusable homicide, and was further instructed:

We agree with Justice Drew’s rationale in Spigner v. State, 304 So.2d 496 (Fla.App. 1, 1974), and find its application most appropriate to the instant cause. Therein, he held, in pertinent part, as follows:

The trial judge did not commit reversible error in failing to instruct on attempt.

Relative to appellant’s argument that the trial court erred in not allowing a change of venue, we find from the record

that the trial judge did everything possible to insure an impartial trial for the defendant. The jurors, carefully and extensively examined by defense counsel to determine that they could be fair and impartial, were sequestered and comprehensive gag order was placed on all participants of the trial. As further evidenced by the record, seventy-eight prospective jurors were interviewed ; allowed thirty-two peremptory challenges, the . defense only exercised twenty-seven. Upon the selection of twelve persons, the trial judge denied the motion for change of venue with the following analysis:

Appellant has failed to show that he did not receive a fair and impartial trial, that the setting of his trial was inherently prejudicial. Cf. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975) opinion filed June 16, 1975. The trial judge did not abuse his discretion in denying the motion for change of venue. Most recently in Murphy v. Florida, supra, the Supreme Court of the United States enunciated :

Cf. Hawkins v. State, 206 So.2d 5 (Fla. 1968).

Appellant raises several other points on appeal, none of which we find meritorious so as to constitute reversible error.

We have listened carefully to oral argument, examined and considered the record

in light of the assignments of error and briefs filed and we have also, pursuant to Rule 6.16(b), Florida Appellate Rules, reviewed the evidence to determine whether the interests of justice require a new trial, with the result that we find no reversible error is made to appear and the evidence in the record, sub judice, does not reveal that the ends of justice require that a new trial be awarded.

Upon considering all the mitigating and aggravating circumstances and upon careful review of the entire record in the cause, the trial court properly imposed the death penalty for the murder conviction. The trial judge stated in the conclusion of his sentencing statement:

We agree.

Accordingly, no reversible error appearing, the judgments and sentences of the Circuit Court appealed from are hereby affirmed.

It is so ordered.

ADKINS, C. J., ROBERTS, J., and KLEIN, Circuit Judge, concur.

BOYD, J., dissents with an opinion.

OVERTON, J., concurs specially with an opinion.

ENGLAND, J., concurs in part and dissents in part with an opinion.

BOYD, Justice

(dissenting).

I Dissent.

This cause is before us on direct appeal2 from the Circuit Court of Duval County which entered a conviction of first degree murder based on a jury verdict, thereafter sentencing Appellant to death by electrocution. Although we are not here reviewing these additional matters, Appellant was simultaneously convicted of both second degree murder of his small son and child abuse in connection with the torturing of two of his other children, which led to the almost total blindness of his eldest son who was approximately thirteen years of age at the time of the murder being considered.

The only eyewitness to the murder was Appellant’s son, John Dobbert, mentioned above, whose eyesight was twenty over two hundred (20/200). John testified that his father had brutally beaten his daughter Kelly Ann and, subsequently, had choked her; whereupon Appellant called John into the room to determine whether Kelly Ann had actually died. John testified that there were no signs of life and that it was his opinion that his sister was dead. Thereafter, Appellant dressed his daughter in her finest clothing, kept her lying on the bed for approximately two hours, placed her in a plastic bag and carried her to the attic. John testified that he did not see the body of his sister again and that he knew nothing of what was done with her body thereafter. There was inconsequential testimony that experts found some material in the attic which possibly could have been human blood, but this was not clearly established. The Appellant made rambling remarks concerning the possible whereabouts of his two dead children but never clearly admitted murder.

On appeal, Appellant relies in part upon the alleged error of the trial court in refusing to instruct the jury on certain lesser included offenses3 and argues that the

Judge also erred when he refused to instruct the jury that they were authorized to convict the Appellant of attempted murder.4 Rule 3.510, Rules of Criminal Procedure, provides that whenever a person is tried for a crime and the criminal statutes provide that an attempt to commit such a crime is also a crime, it is mandatory that the court instruct the jury that it is entitled to find the accused person guilty of an attempt to commit the crime in the same manner as the jury is entitled to find the defendant guilty of a lesser included offense.5

In this case the Appellant, through his attorney, moved the court not only to charge on the lesser included offenses but also specifically to charge on attempted murder.

This Court in Hand v. State,6 held that defendants, upon request, were entitled to a charge on larceny when charged with robbery. In Brown v. State,7 this Court held it was mandatory not only to instruct on necessarily included offenses if requested to do so but also to instruct on attempts to commit the crime charged if such attempts constituted crimes. In State v. Washington,8 and in Rayner v. State,9 this Court held it was reversible error not to instruct on lesser included offenses even though a defendant requested the court not to give them.

In Lewis v. State10 the District Court of Appeal, Fourth District, held that failure to charge on attempt to receive stolen property when the defendant was charged with receiving stolen property was reversible error. In Herman v. State11 that same court held it reversible error not to instruct on lesser included offenses of manslaughter and aggravated assault when requested by defendant. In Ward v. State,12 the Fourth District ruled that failure to charge on attempts to commit the crime charged, when such attempts are crimes, constitutes error in a case where defendant was charged with breaking and entering. In Elmore v. State13 the defendant was tried for murder and convicted of manslaughter ; the Fourth District reversed the conviction for failure of the trial judge to instruct the jury on aggravated assault as requested by the defendant. In Levi v. State14 that District held that failure to in

struct the jury that it could find defendant guilty of attempting to deal in credit cards belonging to another when charged with dealing with credit cards of another was reversible error. In Bracy v. State15 the Fourth District decided that failure of the trial court to instruct on attempted murder, attempted robbery, and assault with intent to commit murder was reversible error, although the judge believed evidence clearly established murder; it was also held that a failure by the trial judge to give a requested instruction on the lesser included offense of assault with intent to commit robbery was reversible error.

The above holdings become acutely important with respect to any case in which the body of the alleged victim cannot be found. In this particular cause, the testimony of the victim’s brother John was that the Appellant had severely beaten her and was choking her shortly before he decided that she was dead. Testimony in the record justified the jury in finding the Appellant guilty of murder in the first degree, and my observations herein should not be construed otherwise. Since the body of the deceased could not be found, however, the jury should have been instructed not only on lesser included offenses established by the testimony of the victim’s 'brother John, but it should have been instructed also on attempted murder. It is remotely possible that the Appellant attempted to murder his daughter and that after removing her from the bed to the attic, considering her dead, she might have become conscious and fled. I make no such finding here, but since the statutes and rules of court require instruction on attempted murder, this appears to be a prime case in which the jury should have been instructed that, in its discretion, it could have found the Appellant guilty of attempted murder instead of murder. Human life is too precious to have an individual executed without being afforded all of the safeguards provided by the Constitutions, statutes and rules of court. While we have considered Florida’s harmless error statute,16 we feel that it is not applicable in this case, as the error was too great to be considered harmless.

The Appellant also argues that he was denied a fair trial by the court’s failure to grant his motion for change of venue. Evidence in the record clearly shows that the cruelty and torture administered by the Appellant to his children became a subject of great interest among the people of the Greater Jacksonville, Florida, area at the time his crimes were made known by the news media. Further, it is apparent that the news media constantly continued to report the gruesome details of the case as they developed. An unusually high percentage of persons called as prospective jurors first informed the court that they were familiar with the case through the news media, and some of them even stated that they had opinions that the Appellant was guilty as charged but that they could remove such prejudice from their minds and could make an objective determination of his guilt or innocence.

The Constitutions of the United States and Florida permit the news media to write extensively about crime and criminals and to discuss the gory details of crime before and during trials. This is a constitutional right that I recognize and respect; however, other constitutional provisions grant persons charged with crime the right to be tried fairly, under due process of law, in an atmosphere of fairness and without prejudice in the minds of the jury. Rarely in the history of Florida has any crime created greater public attention than the activities of the Appellant in the treatment of his children, culminating in two convictions of murder and two convictions of child abuse. It is my opinion that the court should have granted the motion for

change of venue in order that the Appellant might be tried in some part of Florida in which the magnitude of his crimes was not so widely known and so freely discussed among the populace.

I have considered other points raised by the Appellant and deem them to be without substantive merit. I feel that the court committed reversible error in not charging the jury that it was authorized by law to find the Appellant guilty of attempted murder or the lesser included offenses of aggravated assault, aggravated battery, and assault and battery. Also, I feel that the court committed reversible error in denying Appellant’s motion for change of venue. For the foregoing reasons I would quash the judgment of the trial court and remand the cause for a new trial at a location substantially away from the City of Jacksonville.

I therefore dissent.

OVERTON, Justice

(concurring specially).

I concur m the majority opinion including the sentence of death. In my opinion, the facts in the record together with the explicit findings by the trial judge meet the test set forth in Tedder v. State, 332 So.2d 908 (Fla.1975), Opinion filed November 19, 1975, concerning a sentence of death after a jury recommendation of life imprisonment.

ENGLAND, Justice

(concurring in part and dissenting in part):

I fully agree with all aspects of the Court’s opinion through its conclusion that the evidence “does not reveal that the ends of justice require that a new trial be awarded.” I dissent from that part of the decision which upholds the trial judge’s imposition of a death penalty.

In Tedder v. State, 332 So.2d 908, opinion filed November 19, 1975, we articulated a sensible standard for reviewing the conflicting sentences of juries and judges in death penalty cases. We there said:

Applying that standard here, I would hold that reasonable persons could disagree with the trial judge,* and that the jury’s recommendation of life imprisonment should be adopted.