Gerald Eugene Stano confessed to killing forty-one women. He was convicted of nine. Florida executed him in the electric chair on March 23, 1998, and the questions about how those confessions were obtained, by a single detective, over years, in sessions with no recording, outlived him by a long way.
What survives of his case in the digitized appellate record is twenty-five pages: three Opinion of the Supreme Court of Florida, dockets 63947, 64687 and 68982. No briefs, no arguments, just the court's rulings.
The thinness is itself the finding. A man who pleaded to most of his charges, on the strength of statements nobody taped, generates almost no appellate paper, because there was almost no trial evidence to fight over. Confessions that never get tested in a courtroom leave nothing much behind.
Twenty-five pages for a man who confessed to forty-one killings, and the thinness is the most informative thing about the file. Gerald Stano was convicted of nine murders, most of them resolved by plea on the strength of statements he made to a single detective over a period of years, none of them recorded. A case that never goes in front of a jury generates almost no appellate paper, because there is almost no trial evidence to fight over: what survives here is three opinions of the Supreme Court of Florida across dockets 63947, 64687 and 68982, and no briefs at all.
So what either side actually contended is not on this page. An opinion is a finding and these three are findings, but they are the court's summary of arguments we do not hold, which is a real limit on what can be learned from them. The questions about how those confessions were obtained outlived Stano himself; he was executed in the electric chair on March 23, 1998.
Public record, and unlike the briefs elsewhere in this category these three exist in print: opinions of the Supreme Court of Florida are published in the Southern Reporter, so there is a citable authoritative text of each one in any law library. Our copies are the FSU law library's scans of the court's own filings.
Scanned typescript, 74 to 89 per cent of lines legible, which makes this one of the cleaner files here. We closed the letters the scanner scattered inside words and the words it broke at the margin, rejoined the paragraphs, and repaired 39 misreadings where the answer was unambiguous. Nothing capitalized was altered and nothing ambiguous was guessed at.
No. 63,947 GERALD EUGENE STANO, Appellant, STATE OF FLORIDA, Appellee.
[November I, 1984]
PER CURIAM.
Stano appeals his adjudication of guilty of two counts of first-degree murder and his two death sentences. We have jurisdiction, article V, section 3(b) (1), Florida Constitution, and we affirm.
Stano pleaded guilty to first-degree murder for the strangulation/drowning death of one woman in 1975 and the shooting/drowning death of another woman in 1977. The court accepted the pleas and adjudicated Stano guilty as charged.
Stano waived a sentencing jury, and, after a three-day sentencing hearing, the trial court sentenced him to death on each charge.
On appeal Stano argues that the trial court improperly imposed the death penalty and erred in denying his motion to preclude imposition of the death penalty and that section 921.141, Florida Statutes (1983), is unconstitutional. We find no merit to any of these points. Moreover, although not raised on appeal, we find a competent basis for the trial court's acceptance of Stano's guilty pleas and the adjudications of guilt.
For the 1977 murder the trial court found three aggravating circumstances (previous conviction of six first-degree murders; heinous, atrocious, or cruel; and committed ina cold, calculated, and premeditated manner) and three non statutory mitigating circumstances (Stano's difficult early childhood, his marital difficulties, and his confessions and guilty pleas) applicable. For the 1975 murder the trial court found the same aggravating and mitigating factors plus one additional aggravating circumstance (committed during a kidnapping). Stano now claims that the trial court found improper aggravating circumstances, considered evidence of non statutory aggravating circumstances, and failed to give substantial weight to relevant and appropriate mitigating factors. We disagree with these contention.
Although Stano does not challenge the court's finding previous convictions of violent felonies in aggravation, it is important to note the court's conclusion regarding this circumstance. Prior to these proceedings, Stano had pleaded guilty to six counts of first-degree murder for the killing of six young women and, pursuant to a plea bargain agreement, had been sentenced to six consecutive terms of life imprisonment without eligibility of parole for twenty-five years. In the instant sentencing orders the trial court stated:
The Court is aware it is not to engage in a mere mechanical tabulation of criteria, but rather it is to carefully weigh and evaluate the evidence. In this case the large number of prior murder convictions is the dondnantfactor.This criteria is entitled to great weight.· By itself,·it would outweigh the mitigate; ing factors, and Call for the death penalty. This factor is, however, accompanied by additional aggravating circumstances. The aggravating circumstances far outweigh the mitigating circumstances.
(Emphasis supplied.)
We need not depend solely on the trial court's statement as to the weight given to the first aggravating factor as set out above, however, because, notwithstanding Stano's contention, we find the challenged aggravating circumstances to have been established beyond a reasonable doubt. In support of finding these murders to have been committed ina cold, calculated, and premeditated manner the trial court noted that Stano struck both women, thereby stunning them, to keep them from leaving the car, drove to isolated areas (seventeen and one-half miles in some twenty-five minutes and twenty miles in thirty-five to forty minutes in the respective cases), and then, after ordering the women to leave the car, strangled one and shot the other in the head. The trial court could discern no reason or justification for these murders and ter med them "completely senseless." These murders show the heightened premeditation needed to meet the test in Jent v. State, 408 So.2d 1024 (Fla. 1981), cert. denied, 457 u.S. 1111 (1982), and the trial court did not err in finding both crimes to have been committed ina cold, calculated, and premeditated manner. Compare Card v. State, 453 So.2d 17 (Fla. 1984) (Card injured victim, transported her to a secluded area, made her leave the car, and then cut her throat), and Jones v. State, 440 So.2d 570 (Fla. 1983) (killed totally without provocation).
The trial court's finding heinous, atrocious, or cruel in aggravation is also amply supported. Both women had been struck by Stano and then driven considerable distances. Each must have known what was going to happen to her. Stano argues that, after being struck, the women would have been too dated to have contemplated their fates. In fact, however, each woman was conscious and left the car under her own power when told to do so. On the totality of the circumstances each of these cases meets the standard of State. Dixon, 283 So.2d 1 (Fla. 1973), cert. denied, 416 u.S. 943 (1974), and supports a finding of heinous, atrocious, or cruel.
Stano also argues that the court's use of the same facts to support both of these aggravating circumstances is an improper doubling of these two factors. As we have discussed before, heinous, atrocious, or cruel pertains more to the nature of the killing and the surrounding circumstances while cold, calculated, and premeditated pertains more to state of mind, intent, and motivation. Mason v. State, 438 So.2d 374 (Fla. 1983), cert.
denied, 104 S.Ct. 1330 (1984). The facts of these cases support both of these aggravating circumstances. See Squires v. State, 450 So.2d 208 (Fla.), cert. denied, No. 84-5200 (U.S. Oct. 9, 1984); Hill v. State, 422 So.2d 816 (Fla. 1982), cert. denied, 103 S.Ct. 1262 (1983). These two circumstances have not been improperly doubled up, and we find no merit to this argument.
In these sentencing orders the trial court, relying on Sireci v. State, 399 So.2d 964 (Fla. 1981), cert. denied, 456 U.S. 984 (19B2), stated: "While lack of remorse is in itself not an aggravating circumstance, it is a factor to be considered in determining" whether a homicide is heinous, atrocious, or cruel.
In Sireci we stated:
While lack of remorse cannot constitute an aggravating circumstance, it can be offered to the jury and jUdge asa factor which goes into the equation of whether or not the crime was specially heinous, atrocious, or cruel.
Id. at 971. More recently, however, we revisited this issue and held that hence forth lack of remorse should have no place in the consideration of aggravating factors. Any convincing evidence of remorse may properly be considered in mitigation of the sentence, but absence of remorse should not be weighed either as an aggravating factor nor as an enhancement of an aggravating factor.
Pope v. State, 441 So.2d 1073, 1078 (Fla. 1983) (emphasis supplied).
Stano now argues that the trial court's reliance on Sireci nullifies the finding of heinous, atrocious, or cruel. We disagree. The trial court did not find lack of remorse to be a non statutory aggravating circumstance; he merely used it to support a factor which is already amply supported by the record.
We cannot fault the trial court for following a decision of this Court and for failing to second-guess this Court.
The facts also support the trial court's finding the 1975 murder to have been committed during a kidnapping. That woman tried to leave the car, but Stano struck her and locked the car doors. The trial court found her confinement not merely incidental to her murder. We find no merit to Stano's arguments on this point.
As his final challenge to the trial court's findings as to aggravating and mitigating circumstances, Stano claims that the trial court erred in failing to find the statutory mitigating factors of being under the influence of extreme mental or emotional disturbance and impaired capacity to conform his conduct to the requirements of the law. § 921.141(6) (b), (f).
Four psychiatrists and one psychologist reported to the court on Stano as to these factors. The parties stipulated that, if present, the psychologist would have testified that Stano had been under extreme mental disturbance and that his capacity to conform his conduct to the requirements of the law was substantially impaired. One of the psychiatrists testified that he had reached the same conclusions. The other three psychiatrists, on the other hand, testified that, in their opinion, Stano's capacity to conform his conduct to the requirements of the law was not substantially impaired. Two of these doctors also stated that Stano had not been under the influence of extreme mental or emotional disturbance, l while the third doctor said that he could not answer that question. After considering the testimony, reports, and arguments of counsel, the court refused to find these factors in mitigation.
Finding or not finding a specific mitigating circumstance applicable is within the trial court's domain, and reversal is not warranted simply because an appellant draws a different conclusion. Smith v. State, 407 S.2d 894 (Fla. 1981), cert.
denied, 456 u.S. 984 (1982). Moreover, it was the court's duty to resolve the conflicts here, and his determination should be final if it is supported by competent substantial evidence.
Martin v. State, 420 So.2d 583 (Fla. 1982), cert. denied, 103 The trial court specifically adopted the testimony of these two doctors. Stano now claims that they used an incorrect standard in evaluating him, but our review of the record reveals that this is not so.
S.Ct. 1508 (1983). The testimony relied on by the court is competent substantial evidence, and we find no error in the court's failure to find these mitigating circumstances applicable.
Prior to sentencing Stano filed a motion to preclude imposition of the death penalty, which the trial court denied.
Pursuant to plea agreements, Stano had previously received sentences of life imprisonment for six other first-degree murders that he had pleaded guilty to. He now argues that the circumstances surrounding the murders in the instant case are no more persuasive to impose the ultimate sanction than were the circumstances surrounding the six (6) previously disposed of murders committed by Mr. Stano in Volusia County, as well as the three (3) convictions and life sentences arising from the Eighth Judicial Circuit.
Therefore, he claims that sentencing him to death for these two mur d ers ~s,3, We d ~agree. There was no p 1 ea bargain regarding the sentences in the instant cases, and, after comparing these cases with other cases where death has been imposed, we find these sentences both proportion ate and warranted. Compare Mann v. State, 453 So.2d 784 (Fla. 1984) (abduction and killing without reason), and Jones v. State (no provocation, no justification).
In his last point on appeal Stano presents, in summary fashion, a grab bag of challenges to the constitutionality of section 921.141, both on its face and as applied. As the state Stano had previously confessed to a total of nine murders, but was charged with and sentenced for only six of them.
In Pulley v. Harris, 104 S.Ct. 871 (1984), the Supreme Court reversed Harris v. Pulley, 692 F.2d 1189 (9th Cir. 1982). We therefore disregard Stano's reliance on the ninth circuit's opinion.
If we did as Stano suggests and considered all of the murders Stano has confessed to together, we would be hard pressed to find anyone approaching Stano in number, senselessness, or lack of provocation or motive. Even John Ferguson's eight death sentences (Ferguson v. State, 417 So.2d 631 (Fla. 1982), and Ferguson v. State, 417 So.2d 639 (Fla. 1982» pale in comparison to Stano's history because Ferguson committed all eight murders in only two episodes and at least had robbery and rape for motives.
points out, and as Stano concedes, we have rejected these challenges in previous cases. We see no reason to reconsider them here and find this point to have no merit.
We affirm the adjudications of guilty of first-degree murder and the sentences of death.
It is so ordered.
BOYD, C.J., ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., Concur
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
FILED, DETERMINED.
An Appeal from the Circuit Court in and for Volusia County,
s. James Foxman, Judge - Case Nos. 83-l88-CC and James B. gibson, Public Defender and Christopher S. Quarles, Assistant! Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, fort" Appellant Jim Smith!, I Attorney General and Kenneth McLaughlin, Assistant Attorney General, Daytona Beach, Florida,
No. 64,687 GERALD EUGENE STANO, Appellant, STATE OF FLORIDA, Appellee.
[July IIi 1985]
PER CURIAM.
Gerald Stano appeals his conviction of first-degree murder and sentence of death. We have jurisdiction pursuant to article V, section 3(b) (1), Florida Constitution, and affirm both the conviction arid sentence.
In 1981 Stano confessed to having killed a young woman in 1974, and a grand jury indicted him for first-degree murder.
When the jury could not reach a unanimous verdict, the court declared a mistrial. On retrial the jury convicted Stano as charged and recommended the death penalty, which the trial court imposed.
Numerous members of the venire for the second trial had been exposed to publicity regarding Stano, the instant crime, and the first trial. At voir dire defense counsel asked one prospective juror how the pretrial publicity would affect her deliberations if she were selected to serve, and she responded that she would "block it out." When defense counsel asked how she would do that, the court sustained the state's objection to that question. Stano now claims that the court improperly limited the scope of his voir dire. We disagree.
While "counsel must have an opportunity to ascertain latent or concealed pre judgments by prospective jurors," it is the trial court's responsibility to control unreasonably repetitions and argumentative voir dire. Jones v. State, 378 So.2d 797, 797-98 (Fla. 1st DCA 1979), cert. denied, 388 So.2d 1114 (Fla. 1980). The test for determining a juror's competency is whether that juror can lay aside any prejudice or bias and decide the case solely on the evidence presented and the instructions given. Davis v. State, 461 So.2d 67 (Fla. 1984);
Lusk v. State, 446 So.2d 1038 (Fla.), cert. denied, 105 S.Ct. 229 (1984). The prospective juror that Stano now complains about met that test, as did all those persons who eventually served on the jury. Stano has shown no abuse of discretion in the trial court's restriction of defense counsel's voir dire.
As his second point on appeal, Stano complains that the trial court improperly restricted his presentation of evidence at both the guilt and penalty phases of his trial. Stano's attorney proffered the testimony of a psychiatrist that certain people confess to crimes they did not commit and of a police officer to whom Stano had confessed a murder which he, Stano, did not commit. After hearing both sides' arguments, the trial court refused to allow the jury to hear this testimony.
In arguing to the court the state relied on three cases:
Grove v. State, 211 Ten. 448, 365 S.W.2d 871 (1963); Grove v.
State, 185 Md. 476, 45 A.2d 348 (1946); and State. Humphrey, 63 Or. 540, 128 P. 824 (1912). In Humphrey the Oregon Supreme Court held that a trial court properly refused to admit testimony regarding a defendant's false confession to several murders because that testimony would have confused the issue being tried and would have been unprofitable and irrelevant. In the Maryland Grove case the appellate court found that testimony about false confessions to other crimes would be irrelevant. The Tennessee Supreme Court reached the same conclusion in its Grove opinion.
To be relevant, and, therefore, admissible, evidence must prove or tend to prove a fact in issue. Coler v. State, 418 So.2d 238 (Fla. 1982), cert. denied, 459 u.s. 1127 (1983). Moreover, the person seeking admission of testimony must demonstrate its relevance. Hitchcock v. State, 413 So.2d 741 (Fla.), cert.
denied, 459 U. S. 960 (1982). None of the defendants in Humphrey and the Grove cases could prove the relevance of the proffered testimony. Stano's proffer suffer from the same defect, i.e., a lack of demonstrated relevance. The fact that some people confess to crimes they did not commit is not evidence that Stano's confession in this case was inform or tainted. There was no proffer of an opinion to such a contention, even though Stano's theory of defense was that he killed someone other than the alleged victim in this case.
Turning to the sentencing portion, a defendant should be allowed to introduce in mitigation any aspect of his character or record or any evidence regarding the circumstances of the offense that might justify less than a sentence of death. Docket v.
Ohio, 438 u.S. 586 (1978); Perry v. State, 395 So.2d 170 (Fla.
(1980). In other words, any relevant evidence as to a defendant's character or the circumstances of the crime is admissible at sentencing. Buford v. State, 403 So.2d 943 (Fla. 1981), cert.
denied, 454 u.S. 1163 (1982). Conversely, irrelevant evidence is inadmissible.
The testimony Stano sought to present at sentencing was irrelevant. The psychiatrist, who had not examined Stano, would have testified that some people confess to crimes they do not commit. The detective would have testified that Stano made a false confession to him. We fail to see Ca) the relevancy of testimony not about Stano himself and (b) the relevancy and efficacy of telling the jury that Stano was a liar as well asa convicted murderer. A trial court's discretion extend to determining what is relevant evidence at sentencing, and a trial court's finding will not be disturbed unless an abuse of discretion is shown. Christopher v. State, 407 So.2d 198 (Fla.
1981), cert. denied, 456 U.S. 910 (1982). Stano has demonstrated no abuse of discretion on this point.
The victim's parents testified at the first trial. Prior to the second trial, however, they stated that, because they were so upset, they would not testify again. The state filed a motion to compel their testimony, but the parents stated that they would not testify regardless of fines or imprisonment. The state then filed a motion of unavailability, and the parents reiterated that they would not testify and that sanctions would not induced them to testify. On the day trial was to begin, the state renewed its motion of unavailability. The parents, who were in the courtroom, again refused to testify. After holding a hearing on the matter, the trial court declared them unavailable and allowed the state to read the transcripts of their testimony at the first trial into evidence. Stano now claims that the court erred in declaring these people unavailable and in allowing their former testimony into evidence.
Subsection 90.804(1) (b), Florida Statutes (1983), provides that a witness is unavailable if he " [p]ersists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so." At the hearing immediately prior to trial the parents adamantly refused to testify and persisted in that refusal even when told by the court that their continued refusal could subject them to fines or imprisonment. The requirements of subsection 90.804(1) (b) have been met here. We see no purpose that would have been served in this instance in, as Stano argues, calling these people at trial to have them reiterate their refusal to testify or in actually fining or imprisoning them. The state made an adequate showing of unavailability, and we find no abuse of discretion in the trial court's rulings.
See Outlaw v. State, 269 So.2d 403 (Fla. 4th DCA 1972), cert.
denied, 273 So.2d 80 (Fla. 1973).
To set the scene for reading into the record the prior testimony of the victim's parents, a deputy court clerk testified that they had testified at the first trial and authenticated the exhibits that had been introduced through their testimony. The court reporter then read the parents' former testimony into the record. The court overruled the defense's objections to this procedure.
Stano now claims that allowing the deputy clerk to testify violated the rule of witness sequestration and also resulted ina loss of the trial court's appearance of impartiality. Excluding persons from the rule of sequestration is within a trial court's discretion, West v. State, 149 Fla. 436, 6 So.2d 7 (1942), and Stano has demonstrated no abuse of discretion or any prejudice here. Moreover, it appears that the deputy clerk's testimony performed a purely administrative function. As such, it did not impinge upon the trial court's appearance of impropriety. We therefore find no merit to this point.
When found, the victim's body was in an advanced state of decomposition. At trial her former dentist identified the victim's skull through her dental records. He had not, however, seen her fora number of years, and, in fact, the last dental charts he had made of his former patient showed twelve baby teeth. On the other hand, the five amalgam restorations (fillings) present in the victim's first four permanent molars exactly matched the dental charts and the material the dentist used for restorations at that time. The dentist testified that, based on his dental expertise, the victim was his former patient.
The court overruled the defense's objection to the dentist's identification of the victim. Stano now argues that the dentist testified to an ultimate fact beyond his expertise and qualifications and that his testimony denied him a fair trial. We disagree.
An expert's opinion must be based on facts in evidence or within his knowledge. Crack v. State, 201 So.2d 706 (Fla.
1967). The dentist's testimony meets this standard, and he identified the victim to a reasonable medical certainty. See Stone
v. State, 378 So.2d 765 (Fla. 1979), cert. denied, 449 u.S. 986 (1980). A trial court has wide discretion concerning the admissibility of evidence and the subjects about which an expert can testify. Jent v. State, 408 So.2d 1024 (Fla. 1981), cert.
denied, 457 U.S. llll (1982). Stano has shown no abuse of discretion here.
At trial Stano moved fora judgment of acquittal, claiming that the state's evidence failed to prove the corpus delicti with respect to the criminal agency of another being the cause of the victim's death. The court denied the motion, and Stano now argues that the trial court erred in doing so.
There are three elements to the corpus delicti of a homicide: l) The fact of death; 2) the criminal agency of another;
and (3) the identity of the victim. Bassett v. State, 449 So.2d 803 (Fla. (1984); Stone v. State. Proof of the corpus delicti beyond a reasonable doubt is not necessary, Bassett, nor is the state "obligated to rebut conclusively every possible variation... or to explain every possible construction ina way which is consistent only with the allegations against the defendant."
State. Allen, 335 So.2d 823, 826 (Fla. 1976).
The state produced substantial evidence to support establishing the corpus delicti. Although he could not pin point a cause of death, the medical examiner ruled out natural causes.
Hunters found the teenage victim's body covered with palm fronds ina ditch near a dirt road ina remote and heavily overgrown area thirty miles from her home. A police investigator testified that, in his opinion, the palm fronds had been arranged over the body deliberately. Finally, the details Stano mentioned in his confession correlate well with the crime scene and the physical appearance of the victim and her belongings. We hold, therefore, that the state produced sufficient evidence to establish the victim's death through the criminal agency of another person.
As his final challenge to the guilt phase of his trial, Stano argues that the trial court violated his constitutional right to be present at all stages of the trial by conducting portions of the trial outside his presence. The first instance occurred at a status conference prior to his first trial, and the second occurred during a communication with the jury. After examining the record, we find no reversible error.
The state presented two motions at the status conference.
In the first the state asked that the defense be compelled to disclose the addresses of two potential defense witnesses. The court's granting this motion was a purely minister ial act and does not constitute error. Additionally, these witnesses did not testify at the second trial, so there is simply no way Stano's absence caused him any prejudice. In the second motion the state requested that Stano be compelled to undergo a psychiatric examination to determine his capacity to appreciate the criminality of his conduct. The court specifically deferred ruling on this motion because of Stano's absence. The court's action demonstrates a scrupulous concern for Stano's rights, and we find no error here. We therefore find this status conference to have been a non critical stage of the trial as defined by Florida Rule of Criminal Procedure 3.180 and that the court did not err by ruling during Stano's involuntary absence. See Herzog v. State, 439 So.2d 1372 (Fla. 1983).
While deliberating, Stano's second jury requested a tape player, a list of the evidence, and a color photograph. Defense counsel waived Stano's presence while the judge answered the request. Stano now claims that every stage of a trial is a crucial stage and that a defendant must be present at each. We disagree and find Stano's reliance on Ivory v. State, 351 So.2d 26 (Fla. 1977), misplaced.
In Ivory we stated: "Any communication with the jury outside the presence of the prosecutor, the defendant, and the defendant's counsel is so fraught with potential prejudice that it cannot be considered harmless." Id. at 28. Here, however, both the prosecutor and defense counsel were present. In view of the lack of an objection to the court's answering the request, and in view of defense counsel's waiver of Stano's presence, we find any error, if indeed there be any here, to be harmless beyond a reasonable doubt, at the worst.
Florida Rule of Appellate Procedure 9.140(f) direct us to review the evidence when a defendant is sentenced to death regarding collateral crimes can be admissible. Such evidence of unrelated crimes, however, cannot be made a feature of the trial.
Williams v. State, 117 So.2d 473 (Fla. 1960). Ina sentencing proceeding the state may introduce testimony as to the circumstances of a prior conviction, rather than just the bare fact of that conviction. Mann v. State, 453 So.2d 784 (Fla. 1984), cert.
denied, 105 S.Ct. 940 (1985); Elledge v. State, 346 So.2d. 998 (Fla. 1977).
One person with eight prior convictions of first-degree murder presents an unusual situation. Stano v. State, 460 So.2d 890, 894 n.4 (Fla. 1984). Considering the totality of the circumstances, we find that the trial judge did not abuse his discretion in allowing into evidence details of these other homicides. The state's argument about these other crimes approached the outer most limits of propriety, but we conclude that neither this evidence nor the argument about it was so egregious as to warrant reversal.
In sentencing Stano to death the trial court found the following aggravating circumstances: prior conviction of violent felony; committed while engaged ina kidnapping; heinous, atrocious, or cruel; and committed ina cold, calculated, and premeditated manner. The trial court found that no statutory or non statutory mitigating circumstances existed. Stano now argues that the court erred in finding the last three aggravating factors and in not finding numerous statutory and non statutory mitigating factors.
After examining this record and after comparing it with other death sentence cases, we hold that the trial court's findings are adequately supported. Picking up the teenage victim, striking her to keep her quiet, and driving her a considerable distance to a remote and desolate location support finding that Stano kidnapped her. Compare Stano, 460 So.2d at 893 (similar situation). These events, when coupled with Stano's confession to a fellow inmate that he alterna tely choked and revived the victim and stabbed her numerous times, support finding the murder to have been heinous, atrocious, or cruel. We have previously held that the cold, calculated, and premeditated aggravating factor can be applied to homicides committed prior to its adoption. Justus v. State, 438 So.2d 358 (Fla. 1983), cert.
denied, 104 S.Ct. 1332 (1984). The circumstances surrounding this killing adequately demonstrate that Stano had the state of mind, intent, and motivation necessary to finding that he killed the victim ina cold, calculated, and premeditated manner.
Mason.
The decision as to whether or not mitigating circumstances have been established is within the trial court's domain, and such decision will not be reversed simply because an appellant draws a different conclusion. Stano; Smith v. State, 407 So.2d 894 (Fla. 1981), cert. denied, 456 u.S. 984 (1982). The trial judge here properly resolved the conflicts in the evidence, and his findings are supported by competent substantial evidence.
Stano; Martin v. State, 420 So.2d 583 (Fla. 1982), cert. denied, 460 u.S. 1056 (1983). We therefore hold that the trial court did not err by failing to find anything in mitigation.
As his last point on appeal, Stano presents numerous challenges to the constitutionality of the death penalty. He concedes that all of these points have been presented to and rejected by this Court on numerous occasions. We see no reason to revisit these claims here.
Therefore, we affirm both Stano's conviction of first degree murder and sentence of death.
It is so ordered.
BOYD, C.J., ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., Concur NOT FINAL UNTIL TUm EXPIRES TO FILE REHEARING MOTION AND, IF
FILED, DETERMINED.
An Appeal from the Circuit Court in and for Brevard County, Gilbert S. Goshorn, Judge - Case No. 83-590-CF-A James B. Gibson, Public Defender and Christopher S. Quarles, Chief, Capital Appeals, Assistant Public Defender, Seventh JUdicial Circuit, Daytona Beach, Florida, for Appellant Jim Smith, Attorney General and W. Brian Badly, Assistant Attorney General, Daytona Beach, Florida, for Appellee
No. 68,982 GERALD EUGENE STANO, Appellant, STATE OF FLORIDA, Appellee.
PER CURIAM.
Stano, aFloridaprisonerfor whom adeathwarranthas been signed, appealsthetrialcourt ' sdenialofhis motion for post-conviction relief. WE have jurisdiction. F1a.R.Crim.P.
3.850. Weaffirmthetrialcourt ' sdenialofrelief and vacated the stay of execution thathe previously granted.
Stano has a lengthy historyinthisstate ' s courts. The death warrant which prompted theseproceedingsisbased on his convictionattrialofonecountoffirst - degree murder and sentenceofdeath, which thisCourtaffirmed. Stano v. State, 473 So.2d 1282 (Fla. 1985j, cert. denied, 106 S. CT. 869 (1986).
Stanoisalsounder two more sentencesofdeathfor two murders to which hepleadedguilty and which thisCourtalsoaffirmed.
Stano. State, 46.0 So.2d 890 (Fla. 1984), cert. denied, 105 S.Ct. 2347 (1985). Moreover, Stanohaspleadedguiltytosix othercountsoffirst - degree murder for which hereceivedconsec - tive terms oflifeimprisonmentwith no possibilityofparole for twenty-five years. These lastsixguiltypleasarecentral 1toStano ' s 3.850 motion.
Stanoraisedsixpointsinthat motion: (1) confessions which ledtothesixpriorguiltypleas, introducedasaggravat - ingevidenceatthetrial which ultimatelyresultedinStano ' s death warrant, were coerced; 2) thestateimproperlywithheld exculpatory evidence (i.e., thatthe confessions leading tothe priorguiltypleas were coerced) from Stano ' strialcounsel;
(3) ineffectivenessoftrialcounselforfailureto cross-examine astate ' switnessadequately; 4) ineffective ness of trial counsel forfailuretoobjecttothestate ' s cross-examination of Stano duringthesentencingproceeding; 5) two psychiatristsshouldnot have been allowedtotestifyforthestateatsentencingasto thestatutorymitigatingcircumstances; and (6) the incompetency ofthe defense ' expert who made apsychologicalstudy of Stano.
Stano ' scurrentcounselfiledthis3.850 motion less than twenty-four hours priorto Stano ' s scheduled execution. The trial court immediately heardthepartiesasto whether the motion statedfactssufficienttowarrantholding an evidentiary hearing on the allegations.
Atthat hearing, Stano ' counsel argued thathe needed more timetodo more investigating and tosecurethepresence of witnesses. The state ' srepresentativesaidthat he could not oppose the motion for continuance, " not because of the merits of what they [ Stano ' s counsel-] had toargue, but because of their failureto commence their work timely and permit this [ trial ] courtto do its work timely. " The trialcourt commented that most of themattersinthe3.850 motion were covered by evidence Stanoclaimsthatthesixguiltypleas were unreliable because his then-attorney (Jacobson) colluded with police detective (Crow) and Stano ' psychologist (McMillan) who coercedhisconfessionsfortheir own personal and professional gain. These confessions were the primary predicateforthe guilty pleas.
The trialcourt, anticipatinga3.850 hearing and realizing thattimeis of the essence after death warrant is signed, made numerous telephonecallstoStano ' scurrentcounselurging an earlier filing and had previouslyreservedtimefor such a hearing. Currentcounselfailedto comply with thetrial court ' srequestsfortimelyhandling of this case.
that had been presentedtothetrialcourtpreviously and that the new materialconsistedprimarily of allegations of unfounded improprieties, some letters written by Stanoconfessingto miscellaneousother murders, adefensepsychiatricevaluation previously notreleasedtothecourtindicatingthat Stano confessedtothatdoctor murdering thevictimfor which he was tried, and copies of articleswrittenafterStano ' prior confessions. The courtthenstatedthatthesematters had been previously ruled on, could have been presented on appeal, " or contained allegations which would constitute inadmissible evidenceorattempttoinvadetheprovince of thejuryorthe finders of fact about comment oropinion on the evidence presented, orrelateto matters thatare not material tothe consideration of this Court. " The trialcourt concluded thatineffectiveness of counsel was theonlycognizableclaimpresentedinthe3.850 motion. The court went on tonotethepresenceofthreewitnesses who could directly address this issue, i. e., Stano and histrialattorneys (Russo and Friedland), and asked ifeitherStanoorthestate wished topresentthosewitnessesastotheclaims of ineffec - tive ness. Stano ' scurrentcounsel asked toprofferthelive testimonyofwitnessesotherthanStano and his former attorneys toestablishtrialcounsel ' ssubstandard performance. He also askedfortimetosecurethosewitnesses ' presence and stated:
"Judge, we can ' tpresenttheclaim, unless you orderusto, of ineffective assistance of counsel atthis time." The state indi - catedthatit was readytoproceedwiththosepersonspresentin the courtroom, stating: " Ifthedefensecounselevaluated and made atacticalchoice, the case law isclear on thestate and federal level, thatthatwillnot be thepredicateforineffec - ' Summoned anticipation of the3.850 hearingthetrialcourt had Stano ' s two trial attorneys and had arrangedforStano to be present.
The first prong of thetestforineffectiveness from Strick - landv. Washington, 466 U.S. 668 (1984). The second part of thattestis prejudice.
tive assistance of counsel." Stano's counsel then argued again for more time. The court responded: "I understand what defense counsel means by proffer, those are things that are in the motion and have been presented by motion and should have been presented by motion." The court then denied the proffer of live witnesses other than those present and continued: "I'm now sitting here with defense counsel indicating that they will proceed, although reluctantly, but concede to me that if they do, they can't pre vail." Under those circumstances the court considered it foolish to proceed and denied the 3.850 motion. He granted a stay until 10: OO a.m. July 2, in order for the parties to come to this Court, and refused to hear anything more from Stano's counsel.
On appeal Stano claims that the files and records do not show conclusively that he was not entitled to relief and that the trial court, therefore, erred by not conducting an evidentiary hearing on the claimed ineffective ness. Furthermore, Stano claims the trial court also erred by attempting to limit the evidentiary hearing to effectiveness of counsel. We disagree.
The court properly ruled that most of the instant issues were ruled on previously or could have been presented on appeal. He also held that some of the allegations were simply not cognizable.
We agree that ineffective ness was the only matter which might have required a hearing. The state indicated its willingness to proceed with such an evidentiary hearing because of the presence of the main witnesses as to ineffective ness, the defendant and his former counsel. Stano's current counsel, however, maintained that the "allegations of effective assistance of counsel have not and could never be resolved upon the basis of the attorneys' testimony." Contrary to this contention, former counsel frequently testify as to their past performance at trial.
See, e.g., Strickland v. Washington, 466 U.S. 668, 678 (1984);
Tafero v. State, 459 So.2d 1034, 1036 (Fla. 1984).
Trialcourtsshouldgrantevidentiaryhearings on 3.850 motions when warranted. Porter. State, 478 So.2d 33 (Fla.
(1985). By his words to and actionsbeforethetrialcourt, it appears thatthatcourtcorrectly concluded that counsel felt he could notprevailin an evidentiary hearing regarding ineffec - tive ness. Holdingsuchahearing, therefore, obviously was not warranted. Wefind no errorinthetrialcourt ' sultimatedeter - mination that an evidentiary hearing should not be held.
Weaffirmthetrialcourt ' sorder and vacateourprevious - ly entered stay of execution.
Its so ordered.
McDONALD, C. J., and ADKINS, BOYD and OVERTON, JJ., Concur EHRLICH, SHAW and BARLETT, JJ., Dissent
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
FILED, DETERMINED.
An Appeal from theCircuitCourtin and forBrevard County, Gilbert. Goshorn, Judge - Case No. 83-590-CF-A LarryHelmSpalding, CapitalCollateralRepresentative, and Mark Evan Olive, LitigationDirector, OfficeoftheCapital Collateral Representative, Tallahassee, Florida, for Appellant JimSmith, AttorneyGeneral and Margene A. Roper, AssistantAttorneyGeneral, Daytona Beach, Florida, for Appellee