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01/04/90 AMOS LEE KING, JR., v. RICHARD L. DUGGER, etc.,
[Editor's note: footnotes (if any) trail the opinion]
[1] SUPREME COURT OF FLORIDA
[2] AMOS LEE KING, JR., Petitioner,
v.
[3] RICHARD L. DUGGER, etc., Respondent
[4] No. 73,360
[5] 555 So. 2d 355, 15 Fla. Law W. S 11
[6] January 4, 1990
[7] Original Proceeding - Habeas Corpus.
BLUE BOOK CITATION FORM: 1990.FL.7 (http://www.versuslaw.com)
[8] APPELLATE PANEL:
[9] Ehrlich, C.J., and Overton, McDonald, Shaw and Grimes, JJ., concur.
Barkett, J., dissents
with an opinion, in which Kogan, J., concurs.
[10] Amos King, a prisoner under death sentence, petitions this Court
for a writ of habeas
corpus.*fn1 We have jurisdiction pursuant to article V, section 3(b)(1),
(9), Florida Constitution,
and deny the petition.
[11] A jury convicted King of first-degree murder, and this Court affirmed
his conviction and
death sentence. King v. State, 390 So.2d 315 (Fla. 1980), cert. denied,
450 U.S. 989, 67 L. Ed.
2d 825, 101 S. Ct. 1529 (1981). After the governor signed King's first
death warrant, the trial
court denied King's motion for post-conviction relief, which this Court
affirmed. King v. State,
407 So.2d 904 (Fla. 1981). A federal court, however, ordered that King
be resentenced. King v.
Strickland, 714 F.2d 1481 (11th Cir. 1983), vacated for reconsideration,
467 U.S. 1211, 104 S.
Ct. 2651, 81 L. Ed. 2d 358 (1984), adhered to, 748 F.2d 1462 (11th
Cir. 1984), cert. denied,
471 U.S. 1016, 105 S. Ct. 2020, 85 L. Ed. 2d 301 (1985). On resentencing
the trial court
agreed with the jury's unanimous recommendation and again sentenced
King to death. This Court
affirmed. King v. State, 514 So.2d 354 (Fla. 1987), cert. denied, 487
U.S. 1241, 108 S. Ct.
2916 101 L. Ed. 2d 947 (1988). The governor signed King's second death
warrant in October
1988, prompting the instant proceedings.
[12] As the first point in his petition, King argues that the trial
court and the state unconstitutionally
minimized his jurors' sense of responsibility in violation of Caldwell
v. Mississippi, 472 U.S. 320,
86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985), that the court erred in not
granting his specially
requested instruction regarding the jury's role in sentencing, and
that appellate counsel rendered
ineffective assistance by failing to raise these issues on appeal.
Substantive claims based on
Caldwell, such as the first two claims just listed, can and should
be raised on appeal, if preserved
at trial, and are, therefore, procedurally barred in post-conviction
proceedings. Dugger v. Adams,
489 U.S. 401, 109 S. Ct. 1211, 103 L. Ed. 2d 435 (1989); Atkins v.
Dugger, 541 So.2d 1165
(Fla. 1989); Jones v. Dugger, 533 So.2d 290 (Fla. 1988). Because King's
trial counsel objected
regarding these issues, however, they could have been raised on appeal,
thereby making the claim
of ineffective assistance of appellate counsel cognizable in these
proceedings.
[13] Appellate counsel's failure "to brief an issue which is without
merit is not a deficient
performance which falls measurably outside the range of professionally
acceptable performance"
Suarez v. Dugger, 527 So.2d 190, 193 (Fla. 1988). See McCrae v. Wainwright,
439 So.2d 868
(1983). We have previously found Caldwell inapplicable in this state
and have upheld the standard
instructions on the jury's role in sentencing. Combs v. State, 525
So.2d 853 (Fla. 1988);
Grossman v. State, 525 So.2d 833 (Fla. 1988), cert. denied, 489 U.S.
1071, 109 S. Ct. 1354,
103 L. Ed. 2d 822 (1989). Because there is no merit to King's argument,
appellate counsel was
not ineffective in not raising these issues on appeal. Pope v. Wainwright,
496 So.2d 798 (Fla.
1986), cert. denied, 480 U.S. 951, 107 S. Ct. 1617, 94 L. Ed. 2d 801
(1987); McCrae.
[14] King also claims that the trial court violated Hitchcock v. Dugger,
481 U.S. 393, 95 L. Ed.
2d 347, 107 S. Ct. 1821 (1987), and Lockett v. Ohio, 438 U.S. 586,
57 L. Ed. 2d 973, 98 S.
Ct. 2954 (1978), by refusing to allow him to introduce evidence tending
to show his innocence.
He argues that this refusal rendered his trial counsel's performance
ineffective. Presenting these
claims in a petition for habeas corpus raises several problems. Counsel
raised the inability to
present evidence tending to show King's innocence on appeal. It is,
therefore, procedurally barred
now because "habeas corpus is not a vehicle for obtaining additional
appeals of issues which were
raised on direct appeal." White v. Dugger, 511 So.2d 554, 555 (Fla.
1987). Even though now
clothed as a Hitchcock/Lockett claim, the instant issue, allowing the
jurors to hear evidence which
might have presented a residual or lingering doubt as to King's guilt,
has been fully considered and
found to be without merit. King, 514 So.2d at 358.*fn2 See also Franklin
v. Lynaugh, 487 U.S.
164, 108 S. Ct. 2320, 101 L. Ed. 2d 155 (1988) (no constitutional right
to have lingering doubts
as to a defendant's guilt considered as a mitigating factor).*fn3 This
issue presents no valid ground
for post-conviction relief. See Middleton v. State, 465 So.2d 1218
(Fla. 1985). Finally, this issue
goes to trial counsel's performance, and claims of ineffective assistance
of trial counsel should be
raised under Florida Rule of Criminal Procedure 3.850, not habeas corpus.
Suarez, 527 So.2d at
193.
[15] On King's original sentencing the trial judge found his age (twenty-three
years) to be a
statutory mitigating circumstance. A different trial judge resentenced
King, however, and did not
find King's age in mitigation. King now claims that the second judge's
refusal to find his age as a
mitigating circumstance renders his death sentence fundamentally unreliable.
This claim could and
should have been raised, if at all, on direct appeal and is, therefore,
procedurally barred in
postconviction proceedings.
[16] To foreclose any possible concern about appellate counsel's failing
to raise the issue,
however, we find that relief would not have been given on appeal. Deciding
whether mitigating
circumstances have been established is within a trial court's discretion.
Stano v. State, 473 So.2d
1282 (Fla. 1985), cert. denied, 474 U.S. 1093, 88 L. Ed. 2d 907, 106
S. Ct. 869 (1986). An
age of twenty-something is "iffy" as a mitigating circumstance. Scull
v. State, 533 So.2d 1137 (Fla.
1988), cert. denied, 490 U.S. 1037, 109 S. Ct. 1937, 104 L. Ed. 2d
408 (1989). That his first
judge found King's age in mitigation did not create any vested entitlement
or right requiring the
second judge to accede to the first's findings. King's resentencing
was a completely new
proceeding, separate and distinct, from his first sentencing. A trial
court is not obligated to find
mitigating circumstances, Suarez v. State, 481 So.2d 1201 (Fla. 1985),
cert. denied, 476 U.S.
1178, 90 L. Ed. 2d 994, 106 S. Ct. 2908 (1986), and, contrary to King's
claim, a mitigating
circumstance in one proceeding is not an "ultimate fact" that collateral
estoppel or the law of the
case would preclude being rejected on resentencing. No abuse of discretion
that would have given
relief on appeal is apparent in the resentencing, and nothing in the
instant petition persuades us that
the procedural bar should be lifted.
[17] King argues that the trial court erred in not allowing him to introduce
testimony by the
executive director of the Florida Parole and Probation Commission that
a life sentence for
first-degree murder includes a minimum mandatory sentence of twenty-five
years' imprisonment.
He also claims that counsel rendered ineffective assistance by not
raising this issue on appeal.
Lockett requires that a sentencer "not be precluded from considering,
as a mitigating factor, any
aspect of a defendant's character or record and any of the circumstances
of the offense that the
defendant proffers as a basis for a sentence less than death." 438
U.S. at 604 (emphasis in
original, footnote omitted). Lockett goes on, however, to note: "Nothing
in this opinion limits the
traditional authority of a court to exclude, as irrelevant, evidence
not bearing on the defendant's
character, prior record, or the circumstances of his offense." Id.
at n.12. Testimony that King
would have to serve at least twenty-five years of a life sentence is
irrelevant to his character, prior
record, or the circumstances of the crime. See Franklin, 108 S. Ct.
at 2327 (plurality), 108 S. Ct.
at 2333 (O'Connor, J., concurring in the judgment). Excluding that
testimony was within the trial
court's discretion. The standard instruction on the possible sentences
for first-degree murder
adequately inform the jury of the minimum mandatory portion of a life
sentence.
[18] We find King's reliance on California v. Ramos, 463 U.S. 992, 77
L. Ed. 2d 1171, 103 S.
Ct. 3446 (1983), misplaced. In Ramos the Court upheld the following
California instruction:
[19] "You are instructed that under the State Constitution a Governor
is empowered to grant a
reprieve, pardon, or commutation of a sentence following conviction
of a crime.
[20] "Under this power a Governor may in the future commute or modify
a sentence of life
imprisonment without possibility of parole to a lesser sentence that
would include the possibility of
parole."
[21] Id. at 995-96. California law requires that this instruction be
given, and the Court found that it
did not unconstitutionally mislead "the jury*fn4 by selectively informing
it of the Governor's power
to commute one of its sentencing choices but not the other." Id. at
998. There is no corresponding
statutory imperative in Florida that a capital jury be told that the
governor may commute any
sentence or, more central to this case, that life imprisonment with
twenty-five years being served
before one is eligible for parole means anything other than exactly
that.
[22] Again, appellate counsel's failure to brief and argue a nonmeritorious
issue is not substandard
representation. Suarez, 527 at 193; McCrae, 439 So.2d at 870. Appellate
counsel's decision not
to raise this issue did not constitute ineffective assistance.
[23] On appeal counsel vigorously argued that the trial court erred
in allowing the state to
introduce hearsay evidence. After examining the issue, we rejected
it. King, 514 So.2d at 359.
King is, therefore, procedurally barred from raising the hearsay issue
again in the instant petition.
[24] As his final point, King argues that the trial court improperly
relied on evidence of King's
behavior during trial to support the death sentence*fn5 and that counsel
rendered prejudicially
ineffective assistance by not raising this issue on appeal. Because
trial counsel did not object,
however, appellate counsel could not have raised this issue on appeal.
This current claim of
appellate counsel's ineffective assistance is, therefore, procedurally
barred. We remind current
counsel that "an allegation of ineffective counsel will not be permitted
to serve as a means of
circumventing the rule that habeas corpus proceedings do not provide
a second or substitute
appeal." Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla. 1987).
[25] This petition for habeas corpus presents no valid grounds for relief, and it is hereby denied.
[26] It is so ordered.
[27] MINORITY OPINION
[28] BARKETT, J., dissenting.
[29] I believe that a jury is entitled to, and often does, mitigate
a sentence because of "lingering
doubt" about the defendant's guilt, as expressed in my dissent in King
v. State, 514 So.2d 354,
360 (Fla. 1987) (Barkett, J., dissenting), cert. denied, 487 U.S. 1241,
108 S. Ct. 2916, 101 L.
Ed. 2d 947 (1988).
[30] I also believe that the trial court improperly excluded proffered
evidence that a life sentence
would require King to serve a minimum mandatory term of twenty-five
years' imprisonment before
becoming eligible for parole. This evidence is clearly relevant to
"any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less
than death." Lockett v. Ohio, 438
U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978) (plurality opinion
of Burger, C.J.)
(footnote omitted). Indeed, the Court has recognized that the state
may not narrow the sentencer's
discretion to consider relevant evidence "that might cause it to decline
to impose the death
sentence." McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 1773,
95 L. Ed. 2d 262
(1987) (emphasis in original, footnote omitted).
[31] KOGAN, J., Concurs
***** BEGIN FOOTNOTE(S) HERE *****
[32] *fn1 King filed this petition late in 1988 after the governor signed
his second death warrant.
We stayed King's execution and ordered the trial court to conduct a
hearing on King's motion for
postconviction relief filed under Fla. R. Crim. P. 3.850. King v. State,
538 So.2d 1255 (Fla.
1988). We choose to proceed with the instant petition at this time.
[33] *fn2 The Florida Supreme Court "has consistently held that residual,
or lingering, doubt is not
an appropriate nonstatutory mitigating circumstance." King v. State,
514 So.2d 354, 358 (Fla.
1987), cert. denied, 487 U.S. 1241, 108 S. Ct. 2916, 101 L. Ed. 2d
947 (1988).
[34] *fn3 A majority of the Court agreed with this holding.
[35] *fn4 The jury is the sentencer in California.
[36] *fn5 In mitigation King presented several ministers who testified
that King had been a model
prisoner who caused no problems for correctional officers and that
his religious faith had affected
his behavior and outlook on life since his incarceration on death row.
King now complains about
the following portion of the findings of fact that the trial court
wrote to rebut this mitigating
testimony:
[37] As appears in the record of this sentencing proceeding, defendant
was a disciplinary problem
as recently as two days ago. On Tuesday, November 5, 1985 this Court
was advised by the
defendant through a message sent to the bailiffs that he was dissatisfied
with his treatment at the
Pinellas County Jail and refused to come to Court for the balance of
his trial. The Court was
compelled to order the jail to produce Mr. King for trial, forcibly
if necessary, and the trial was
delayed until Mr. King arrived at the Courthouse.
[38] This incident is cited not as any aggravating circumstance but
to indicate this Court's belief
that there has been no change in defendant's character.
***** END FOOTNOTE(S) HERE *****
[Editor's note: Illustrations from the original opinion, if any, are available in the print version]
Copyright 1996 VersusLaw, Inc. (206) 250-0142. http://www.versuslaw.com
19900104
1990.FL.7
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