Petition for Writ of Certiorari — Singletary v. Jackson

-- —s

cy — F papreme court, 8.

81-574 | FILED

; SEP 30 1991

|

Case No. | OF THE CLERK

IN THE

Supreme Court of the United States

October Term, 1991

HARRY K. SINGLETARY, Secretary,

Florida Department of Corrections, and

ROBERT A. BUTTERWORTH, Attorney General,

State of Florid

Petitioners,

v.

CARL JACKSON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

ROBERT A. BUTTERWORTH

Attorney General

MARK C. MENSER

Assistant Attorney General

Florida Bar No. 239161

DEPARTMENT OF LEGAL AFFAIRS

The Capitol

Tallahassee, FL 32399-1050

(904) 488-0600

COUNSEL FOR PETITIONERS

QUESTIONS PRESENTED

J. Whether review should be granted to allow this Court

to decide the standard to be applied in determining the

harmlessness of any violations of Hitchcock v. Dugger, 481

U.S. 393 (1987), a matter left unresolved in the original

opinion and currently the source of irreconcilable conflict

between the state and federal courts.

II. Whether the supervisory power of this court should be

exercised to compel circuit court utilization of a consistent

standard of appellate review which, in turn, does not conflict

with the standard of review established by this court in

Anderson v. Bessemer City.

III. Whether a federal court of appeals may apply a har-

sher, discriminatory, standard of review in habeas corpus

appeals brought pursuant to 28 U.S.C. § 2254 than the

deferential standard applied in habeas corpus actions

brought pursuant to 28 U.S.C. § 2255.

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

TABLE OF CONTENTS

I, CERTIORARI SHOULD BE GRANTED TO

DECIDE THE STANDARD TO BE APPLIED

IN DETERMINING THE HARMLESSNESS

OF ANY VIOLATION OF HITCHCOCK V.

DUGGER, 481 U.S. 393 (1987).

II. CERTIORARI SHOULD BE GRANTED

PURSUANT TO THE SUPERVISORY

POWER OF THIS COURT TO CREATE AND

ENFORCE A CONSISTENT STANDARD OF

APPELLATE REVIEW AND TO ENFORCE

THE STANDARDS SET DOWN BY THIS

COURT IN ANDERSON V. BESSEMER CITY.

lil. CERTIORARI SHOULD BE GRANTED

TO RESOLVE THE RECURRING CONFLICT

OVER WHETHER STATE COURT FIND-

INGS OF HARMLESS ERROR, REVIEWED

FEDERALLY PURSUANT TO 28 U.S.C. §

2254, ARE ENTITLED TO THE SAME

DEFERENCE AS FEDERAL DISTRICT

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CONSTITUTIONAL PROVISIONS INVOLVED ....

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

2

Page(s)

COURT FINDINGS OF HARMLESS ERROR

REVIEWED PURSUANT TO 28 U.S.C. § 2255

AND LIPSCOMB V. UNITED STATES, 468

U.S. 1321 (5TH CIR.1972).

ee ee 16

ill

TABLE OF AUTHORITIES

Cases Page(s)

Agee v. White, 809 F.2d 1487 (11th Cir.1987) ...... 9

Aldridge v. Dugger, 925 F.2d 1320 (11th Cir.1991) ... 7

Anderson v. Bessemer City, 470 U.S. 564 (1985) . . passim

Booth v. Maryland, 482 U.S. 496 (1987) ......... 4

Bundy v. Dugger, 850 F.2d 1402 (11th Cir.1988).... . 8

Clark v. Dugger, 834 F.2d 1561 (11th Cir.1987, cert.

denied, 485 U.S. 982 (1988) ............. 6

Coleman v. Thompson, __U.S.___, 115 L.Ed.2d 640

SE oc sks 4k eae eee ee 15

Crovedi v. United States, 517 F.2d 541 (7th Cir.1975). 11

Delap v. Dugger, 890 F.2d 1285 (11th Cir.1989) ..... 7

Demps v. Dugger, 874 F.2d 1385 (11th Cir.1989), cert.

denied, __U.S.__, 110 S.Ct. 1834(1990) ..... 6

Duckworth v. Serrano, 454 U.S.1(1981) ....... 13

Farrow v. United States, 580 F.2d 1339

i eed a Cee ae 11, 12

Furman v. Georgia, 408 U.S. 238 (1972) ...... passim

Gerstein v. Pugh, 420 U.S. 103(1975) ......... 14

Gryger v. Burke, 334 U.S. 728 (1948). ......... 14

Hampton v. United States, 504 F.2d 600

Te ee eee 11

Hargrave v. Dugger, 832 F.2d 1528 (11th Cir.1987) .. . 6

Hitchcock v. Dugger, 481 U.S. 393 (1987) ..... passim

iv

Cases Page(s)

Jackson v. State, 359 So.2d 1190 (Fla.1978) ...... 1,3

Jackson v. Dugger, 931 F.2d (11th Cir.1991)....... 5

Jackson v. Dugger, 554 So.2d 1168 (Fla.1989),

cert. denied, __U.S.___, 110 S.Ct. 3294 (1990). . 2,4

Jackson v. State, 437 So.2d 147 (Fla.1983), cert. denied,

i ee ee eee ee 1,4

Jackson v. State, 452 So.2d 533 (Fla.1984) ...... 2,4

Jackson v. State, 529 So.2d 1081 (Fla.1989).... 2,4,5

John Hancock Inc. Co. v. Bartels, 308 U.S. 180, 181

SNE fou ed Ae ale 20h IO sd -9 30 7

Jones v. Dugger, 867 F.2d 1277 (11th Cir.1989) ..... 7

Knight v. Dugger, 863 F.2d 705 (11th Cir.1988) ..... 7

Lipscomb v. United States, 468 U.S. 1321

Le 11, 15

Lockett v. Ohio, 438 U.S. 586(1978) .......... 3,4

LoConte v. Dugger, 847 F.2d 745 (11th Cir.1988) .... 8

Magill v. Dugger, 824 F.2d 879 (11th Cir.1987) ..... 7

Marshall v. Lonberger, 459 U.S. 422 (1983) .... 14,15

Marshall v. United States, 360 U.S. 310(1959) ..... 8

McNabb v. United States, 318 U.S. 332 (1942) ..... x

Messer v. Florida, 834 F.2d 890 (11th Cir.1987) ..... 6

Pulley v. Harris, 465 U.S. 37(1984) .......... 13

Rose v. Lundy, 455 US 509 (1982) ......... 13, 15

Cases Page(s)

Ruffin v. Dugger, 848 F.2d 1512 (11th Cir. 1988),

cert. denied, 488 U.S. 1044(1989).......... 7

Russo v. United States, 470 F.2d 1357 (5th Cir.1972) . 11.

Stone v. Dugger, 837 F.2d 1447 (11th Cir. 1988), cert.

denied, 489 U.S. 1071(1980) ..........-.-. 6

Sumner v. Mata, 449 U.S. 539 (1981) ...... 6, 12, 13

Tafero v. Dugger, 873 F.2d 249 (11th Cir.1989), cert.

denied., __U.S.__, 110 S.Ct. 1834 (1990) .. . . 6,7

United States v. Hasting, 461 U.S. 499 (1983). ..... 8

Wainwright v. Goode, 464 U.S. 78 (1984) ....... 13

IN THE

Supreme Court of the United States

October Term, 1991

HARRY K. SINGLETARY, Secretary,

Florida Department of Corrections, and

ROBERT A. BUTTERWORTH, Attorney General,

State of Florida,

Petitioners,

v.

CARL JACKSON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT

The Petitioners, Harry K. Singletary and Robert A.

Butterworth respectfully pray for issuance of a writ of cer-

tiorari to review the judgment and sentence of the Eleventh

Circuit Court of Appeals entered in the above-referenced

proceeding on April 29, 1991, in which both rehearing and

rehearing en banc were denied on July 1, 1991.

OPINIONS BELOW

The opinion of the Eleventh Circuit is reported at 931 F.2d

712 (11th Cir.1991).

Previous appellate opinions were reported as Jackson v.

State, 359 So.2d 1190 (Fla.1978), cert. denied, Jackson v.

Florida, 439 U.S. 1102 (1979); Jackson v. State, 437 So.2d

147 (Fla.1983), cert. denied, 465 U.S. 1013 (1984); Jackson

v. State, 452 So.2d 533 (Fla.1984); Jackson v. Dugger, 529

So.2d 1081 (Fla. 1988) and Jackson v. Dugger, 554 So.2d 1168

(Fla.1989), cert. denied, __U.S.___, 110 S.Ct. 3294 (1990).

The decision of the United States District Court was

pronounced orally and was not reported. A transcript of that

decision has been appendixed hereto at (App __A__).

JURISDICTION

The decision of the United States Court of Appeals for the

Eleventh Circuit was rendered on April 29, 1991, and

rehearing was denied on July 1, 1991. The jurisdiction of

this Court is invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment VIII of the Constitution of the United State

provides, inter alia,

“Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punish-

ments inflicted.”

Amendment X provides that:

“The powers not delegated to the United States by

the Constitution, nor prohibited by it to the States,

are reserved to the States respectively, or to the

people.

ee

iii pameaaen oe is

STATEMENT OF THE CASE

On April 20, 1975, Carl Jackson robbed a convenience

store. During the robbery he murdered the store clerk, Ann

Butler, kidnapped a customer, Mary Price, and then mur-

dered Mrs. Price to complete his escape. See Jackson v.

State, 359 So.2d 1190 (Fla.1978).

Mr. Jackson was eventually convicted of robbery, kidnap-

ping and two counts of first-degree murder. In sentencing

Jackson to death, the trial court found nothing to mitigate

his sentence but found five aggravating factors under

Section 921.141, Florida Statutes, to wit:

(1) The murder of Ann Butler took place during a

robbery.

(2) The murder of Ann Butler was committed for

pecuniary gain.

(3) The murder of Mary Price was committed while Mr.

Jackson was engaged in flight from the scene of the

robbery.

(4) The murder of Mary Price was committed during a

kidnapping.

(5) The two murders were committed to avoid lawful

arrest:

The Florida Supreme Court struck the second aggravat-

ing factor as a “doubled” factor, but upheld the trial court’s

findings and sentence. Jackson v. State, 359 So.2d 1190

(Fla.1978), cert. denied, 439 U.S. 1102 (1979).

Jackson filed a motion for post-conviction relief in the

state courts pursuant to Florida Rule of Criminal Procedure

3.850. Among the issues raised were claims of ineffective

assistance of counsel and error under Lockett v. Ohio, 438

U.S. 586 (1978). Jackson was granted a full and fair

1 The advisory jury recommended death by an 11-1 vote.

evidentiary hearing in the state court on the issue of

counsel’s competence, but the Lockett claim was denied on

procedural grounds. Jackson v. State, 437 So.2d 147

(Fla.1983), cert. denied, 465 U.S. 1013 (1984). A successive

“Rule 3.850 petition” and accompanying (state habeas cor-

pus) petition were also denied. Jackson v. State, 452 So.2d

533 (Fla.1984).

The advent of Hitchcock v. Dugger, 481 U.S. 393 (1987)

caused the federal district court to dismiss a “next friend”

federal habeas corpus petition (filed on Jackson’s behalf by

Ella Mae Wilson) so that Jackson could exhaust any new

state remedies.

Jackson returned to the Florida Supreme Court with a

Hitchcock claim, but lost when the Florida Supreme Court,

after careful review, deemed any error harmless. Jackson v.

Dugger, 529 So.2d 1081 (Fla.1988).

Jackson filed a third successive habeas corpus petition in

the Florida Supreme Court, raising Booth v. Maryland, 482

U.S. 496 (1987) and rearguing Hitchcock, supra; but his

petition was summarily denied without opinion. Jackson v.

Dugger, 554 So.2d 1168 (Fla.1989), cert. denied, __U.S.__.,

110 S.Ct. 3294 (1990).

Jackson returned to Federal Court with his Hitchcock

claim and was denied relief. (See App. A).

Jackson appealed to the Eleventh Circuit Court of

Appeals. That court declined to review the district court

decision pursuant to the standards of Anderson v. Bessemer

City, 470 U.S. 564 (1985) and refused to grant either

deference or comity to the Supreme Court of Florida and

that court’s finding of harmless error.” Employing only a

partial review of the record facts, the Circuit Court con-

ducted a de novo “harmless error” review and decided that

Jackson was entitled to relief. Jackson v. Dugger, 931 ¥.2d

(11th Cir. 1991). This action followed the denial of rehearing.

It should be noted that the Florida Supreme Court and

the United States District Court, in reviewing the entire

record, relied upon record facts that were neither reviewed

nor cited by the Eleventh Circuit; for example:

(1) The Eleventh Circuit found that Jackson’s eight

years of military service should have been considered

in mitigation. The other courts, however, looked beyond

Jackson’s mere enlistment and noted that Jackson’s

military “career” was a sordid parade of AWOL’, drug

abuse and demotions which led to an involuntary,

“general,” discharge. (See TR 801, compare Jackson v.

State, 529 So.2d 1081 (Fla.1989) and Jackson v. Dugger,

931 So.2d 712 (11th Cir.1991)

(2) Jackson’s defense attorney (at trial) testified (at

the Rule 3.850 hearing) that Jackson’s record was so

bad that it would not have helped his case at all. (TR

801). The defendant was examined by a psychiatrist

and a psychologist who agreed that Jackson was sane

and competent during the crime. (R 460). Potential

penalty phase witnesses questioned by counsel

declined to get involved. (R 462-463). |

2 In fact, the Eleventh Circuit does not have an established or

consistent standard of review. Booker v. Dugger, 922 F.2d 633 (1ith

Cir.1991); Tafero v. Dugger, 873 F.2d 249 (11th Cir.1989).

REASONS FOR GRANTING THE WRIT

I. CERTIORARI SHOULD BE GRANTED TO

DECIDE THE STANDARD TO BE APPLIED

IN DETERMINING THE HARMLESSNESS

OF ANY VIOLATION OF HITCHCOCK V.

DUGGER, 481 U.S. 393 (1987).

The constitutional application of federal (statutory)

habeas corpus review under 28 U.S.C. § 2254 requires the

federal courts to fairly and consistently apply reasonable

standards of review. The statute, like any other, cannot be

arbitrarily or capriciously applied. Furman v. Georgia, 408

U.S. 238 (1972).

In cases raising claims of harmless error under Hitchcock

v. Dugger, 481 U.S. 393 (1987), no standard of “harmless

error” review has been recognized to guide the federal courts

during § 2254 proceedings. Although the Eleventh Circuit

has acknowledged the existence of this problem, see Tafero

v. Dugger, 873 F.2d 249 (11th Cir.1989), cert. denied,

__US.__, 110 S.Ct. 1834 (1990), it has undertaken no

effort the resolve the problem. The resu!t for the State of

Florida has been an inconsistent patchwork of unpre-

dictable and arbitrary remands for resentencing. In four-

teen (14) Florida cases reviewed by the Eleventh Circuit,

“harmless error” was found in three cases, see Clark v.

Dugger, 834 F.2d 1561 (11th Cir. 1987, cert. denied, 485 U.S.

982 (1988); Tafero v. Dugger, 873 F.2d 249 (11th Cir.1989),

cert. denied., __U.S.___, 110 S.Ct. 1834 (1990); Demps v.

Dugger, 874 F.2d 1385 (11th Cir.1989), cert. denied,

__U.S.__., 110 S.Ct. 1834 (1990). In other cases, the

Eleventh Circuit rejected any claim of “harmless error”

without discussion or analysis, see Hargrave v. Dugger, 832

F.2d 1528 (11th Cir. 1987), (en banc), cert. denied, 489 U.S.

1071 (1989); Messer v. Florida, 834 F.2d 890 (11th Cir.1987);

Stone v. Dugger, 837 F.2d 1447 (11th Cir.1988), cert. denied,

489 U.S. 1071 (1$80); Ruffin v. Dugger, 848 F.2d 1512 (11th

Cir. 1988), cert. denied, 488 U.S. 1044 (1989); while in other

cases some form of “harmless error” review was conducted.

Magill v. Dugger, 824 F.2d 879 (11th Cir.1987); Knight v.

Dugger, 863 F.2d 705 (11th Cir.1988); Jones v. Dugger, 867

F.2d 1277 (11th Cir.1989); Delap v. Dugger, 890 F.2d 1285

(11th Cir.1989); Aldridge v. Dugger, 925 F.2d 1320 (11th

Cir.1991); Jackson v. Dugger, __ F.2d__ (11th Cir., April 29,

1991).

As a nation of laws rather than men, our justice system

must have articulable standards applied consistently from

case to case. The standard of review in a given case should

depend on the law rather than the composition of a random-

ly selected judicial tribunal. In the Eleventh Circuit, how-

ever, some panels reject out of hand any inference that

“Hitchcock” error can be harmless, see, e.g. Knight, 863 F.2d

at 710, while other panels assess the relative strength of the

aggravating and mitigating factors under Florida law. See,

Tafero, supra, 873 F.2d 252, n.4.

This Court may use its certiorari power to resolve this

major intracircuit conflict. C.F. John Hancock Inc. Co. v.

Bartels, 308 U.S. 180, 181 (1939). The State of Florida is

constitutionally entitled to federal habeas corpus review

which is neither arbitrary nor capricious and which is predi-

cated on fair, articulable standards. It is imperative, there-

fore, that certiorari be granted to resolve this problem.

This same issue is currently before the Court in Singletary

v. Booker, Case No. 90-1778 and will appear in an an-

ticipated certiorari petition from the decision in Gore uv.

Dugger, 933 F.2d 904 (11th Cir.1991). In Gore, the Eleventh

Circuit panel conceded the differing approaches taken by

various judges of the Court and then simply decided not to

resolve the conflict, and just to automatically grant habeas

corpus relief on nothing more than the presence of a

Lockett / Hitchcock error. Thus, again, the state has been

subjected to arbitrary and capricious § 2254 review. This

situation simply cannot be permitted to persist.

II. CERTIORARI SHOULD BE GRANTED

PURSUANT TO THE SUPERVISORY

POWER OF THIS COURT TO CREATE AND

ENFORCE A CONSISTENT STANDARD OF

APPELLATE REVIEW AND TO ENFORCE

te STANDARDS SET DOWN BY THIS

URT IN ANDERSON V. BESSEMER CITY.

The Eleventh Circuit refused to follow the standard of

appellate review established by this Court in Anderson v.

Bessemer City, 470 U.S. 564 (1985). Instead, the Court

engaged in appellate trial de novo and, after reviewing only

portions of the record and without reference to any evidence

relied upon by the district court, granted relief. The

Petitioner asks this Court, pursuant to its established su-

pervisory jurisdiction, McNabb v. United States, 318 U.S.

332 (1942); Marshali v. United States, 360 U.S. 310 (1959);

United States v. Hasting, 461 U.S. 499 (1983) to establish

and/or enforce a meaningful and consistent rule of appellate

review.

As the situation stands, the Petitioner has no assurance

from one § 2254 appeal to the next how its cases will be

reviewed. Sometimes, as here, all prior proceedings are

dismissed as meaningless and the court conducts trial de

novo. At other times, the court utilizes Anderson, supra. See

LoConte v. Dugger, 847 F.2d 745 (11th Cir.1988). Other

times, it proclaims the existence of a hybrid standard.

Bundy v. Dugger, 850 F.2d 1402 (11th Cir.1988). The result

is a jumbled, inconsistent and arbitrary standard of review.

Furman v. Georgia, supra.

The case at bar is a pointed example of the problem. Here,

the Florida Supreme Court made a “harmless error” deter-

mination based upon careful consideration of the entire

record. The District Court, in its turn, did the same. At

times, other panels of the Eleventh circuit have held that

these determinations would be upheld unless clearly er-

roneous. Agee v. White, 809 F.2d 1487 (11th Cir. 1987). Here,

in acase where “harmless error” was found by applying facts

to state, not federal, law, Anderson and Agee should have

controlled. Instead, however, the Eleventh Circuit em-

barked upon trial de novo and, relying upon less than the

full record, ordered resentencing simply to see if an advisory

jury would change its mind if presented with new evidence.

We submit that the issue of “harmless error,” like other

so-called mixed issues of law and fact, should be resolved in

a district court proceeding which serves as the “main event”

rather than “round one.” That is the rule of Anderson, supra.

Once a case leaves the district court on appeal, the standard

of review must uniformly change to one invoking the “clearly

erroneous” standard of Anderson. If 2254 is to be applied

constitutionally, the parties must have notice of the rules

that will be applied and assurance that similar cases will be

reviewed in a like manner. The current system cannot stand.

Certiorari should be granted and this case should be

remanded to the circuit court with instructions to affirm the

record-based decision of the district court.

III. CERTIORARI SHOULD BE GRANTED

TO RESOLVE THE RECURRING CONFLICT

OVER WHETHER STATE COURT FIND-

INGS OF HARMLESS ERROR, REVIEWED

FEDERALLY PURSUANT TO 28 U'S.C. § 2254,

ARE ENTITLED TO THE SAME

DEFERENCE AS FEDERAL DISTRICT

COURT FINDINGS OF HARMLESS ERROR

REVIEWED PURSUANT TO 28 U.S.C. § 2255

AND LIPSCOMB V. UNITED STATES, 468

U.S. 1321 (6TH CIR.1972).

The case at bar concerns the disparate standards of

review, particularly on appeal, imposed in cases arising

under 28 U.S.C. § 2254 and 28 U.S.C. § 2255.° Since the

same standards are not employed, even in cases where the

legal issues are virtually identical, basic constitutional

guarantees of due process, equal justice, comity and

federalism are being violated. From the standpoint of the

states, criminal proceedings reviewed pursuant to 28 U.S.C.

3 An inevitable consequence of litigation under 28 U.S.C. 2254 is

friction between the states and the federal judiciary, a point noted in

Sumner v. Mata, 449 U.S. 539 (1981). As noted in Kelley v. Robinson, 479

U.S. 36 (1986), the state’s interests in the administration of their criminal

justice systems are among the most powerful considerations reviewed in

equitable proceedings. This Court has utilized certiorari review to take

steps necessary to minimize that friction while upholding the constitu-

tional rights of both the states and the individuals concerned. Coleman

v. Thompson, __U.S.___, 115 L.Ed.2d 640 (1991); Marshail v. Lonberger,

459 U.S. 422 (1983); Rose v. Lundy, 455 US 509 (1982). This petition

presents a recurring issue which, to date, has evaded review while

continuing to create friction. Gerstein v. Pugh, 420 U.S. 103 (1975). Thus,

once again this Court is asked to intervene to minimize said friction and

to protect the constitutional rights of the parties involved. Sumner, supra.

In the process, the Petitioner would also invoke the supervisory powers

of this Honorable Court. McNabb v. United States, 318 U.S. 332 (1942);

Marshall v. United States, 360 U.S. 310 (1959); United States v. Hasting,

461 US. 499 (1983).

10

§ 2254 are given much harsher review than analogous

federal prosecutions reviewed pursuant to § 2255. Thus,

state judgements and sentences are subjected to reversals

in cases where, had the same rulings been generated in the

federal district courts, they would have been upheld. From

the inmate’s standpoint, any serious review of the

petitioner’s case “on the merits” will be controlled by the

identity of the court being reviewed rather than the factual

or legal issues involved. The net result is an arbitrary and

capricious system of statutory collateral review which must

be corrected. Furman v. Georgia, 408 U.S. 238 (1972).

Carl Jackson was sentenced to death in a (Florida) penal-

ty-phase proceeding conducte ’ in violation of the legal

standards recognized in Hitchcock v. Dugger, 481 U.S. 393

(1987). The Florida Supreme Court, recognizing the exist-

ence of Hitchcock error, reviewed the nonstatutory mitigat-

ing evidence proffered by Mr. Jackson and found it to be so

minimal as to render any error “harmless.” As the final court

in Florida’s tripartite capital sentencing system, the Florida

Supreme Court held that even with this “new” evidence Mr.

Jackson would still be sentenced to death even if the ad-

visory jury recommended a “life” sentence.

If the Florida Supreme Court had been a United States

District Court, that finding would have essentially ended

the inquiry, for if Mr. Jackson’s case had gone on to the

Eleventh Circuit under the auspices of § 2255 rather than

§ 2254, the “same sentence anyway” or “harmless error”

finding would have been considered dispositive. Russo uv.

United States, 470 F.2d 1357 (5th Cir.1972); Lipscomb v.

United States, 468 U.S. 1321 (5th Cir.1972); Crovedi v.

United States, 517 F.2d 541 (7th Cir.1975); Farrow v. United

States, 580 F.2d 1339 (9th Cir.1978); Hampton v. United

States, 504 F.2d 600 (10th Cir.1974). Of course, Mr. Jackson

did not proceed under § 2255. Instead, his remedy was to file

on appeal arising under § 2254. As a result, Jackson enjoyed

11

complete de novo review, complete rejection of the comity

and deference granted to the Florida Supreme Court by the

district court, and an unwarranted grant of a new sentenc-

ing hearing based upon a decidedly incomplete review of the

record by the circuit court, all in clear violation of the

_standards announced in Sumner v. Mata, supra.

Federal appellate courts, in § 2255 proceedings, defer to

findings of harmless error entered by federal district courts

for the reasons expressed in Farrow v. United States, 580

F.2d 1339, 1352-53 (9th Cir.1978), to wit:

“Moreover, as the new Rules Governing Habeas Cor-

pus Cases now make express, it is consistent with the

federal habeas corpus procedure under § 2254 that ”the

district judge...employ a variety of measures in an

effort to avoid the need for an evidentiary hearing.

Blackledge v. Allison, 431 U.S. at 81...The § 2255

motion, which was designed to afford “the same rights

in another, and more convenient forum,” United States

v. Hagman, 342 U.S. 205, 219...(1952) must be similar-

ly construed; and, indeed, the procedural devices

provided to make an evidentiary hearing unnecessary

are nearly identical in the rules pursuant to § 2254 and

§ 2255 respectively.

Where the judge’s own recollection enables him to answer

in the negative the “real question” in Tucker cases - whether

the original sentence might have been different if he had

known the prior convictions were invalid under Gideon - an

evidentiary hearing is unnecessary, and it is entirely

12

appropriate that the judge dismiss a § 2255 motion without

necessitating the time and expense a hearing would entail.*

Of course, it is beyond dispute that the state courts are

vested with the same duty to defend and uphold the con-

stitution as the federal courts. Duckworth v. Serrano, 454

U.S. 1 (1981). It is also settled that state court findings of

fact are entitled to deference in the federal courts. Sumner,

supra. Finally, it is clear that federal habeas corpus review

is to be limited, Sumner, supra, so that the federal courts do

not sit as second-tier state appellate courts. Pulley v. Harris,

465 U.S. 37 (1984); Wainwright v. Goode, 464 U.S. 78 (1984).

In this regard, the concept of “exhaustion” was recognized

in Rose v. Lundy, 455 U.S. 509 (1982) both out of respect for

comity and recognition of the states’ ability to abide by and

uphold the constitution, given the chance to do so.

The Eleventh Circuit’s refusal to grant any deference to

the Florida Supreme Court’s finding of harmless error not

only offends these constitutional principles, it removes any

incentive the state might otherwise have to provide inmates

collateral review (at state rather than federal expense). If

the findings of the state courts are meaningless, then, the

procedures for arriving at them are, in turn, superfluous

and, perhaps, avoidable by simply dropping them on the

federal courts, at federal expense. These were the concerns

addressed by this Court in Rose v. Lundy, supra, in

4 The sentencing errors involved in “Tucker” cases (under 2255) and

“Hitchcock” cases (under 2254) are analogous. Both classes of case involve

constitutional sentencing errors based on the consideration of aggravating

and mitigating evidence. To avoid the expense and burden of massive

resentencings, the federal courts adopted the “Lipscomb” test. See

Lipscomb v. United States, 468 U.S. 1321 (5th Cir.1972), relying upon

federal trial judges to apply federal law in a collateral proceeding. Similar

deference has not been extended to the state courts, although Barclay v.

Florida, 463 U.S. 939 (1983) recognized that state court judges were

capable of applying constitutional and state law relative to sentencing.

13

recognizing both the benefits of the exhaustion doctrine and

the ability of the state courts to address even constitutional

claims.

This argument does not suggest that the supremacy of the

federal courts in resolving actual federal constitutional

questions should be lessened or eliminated. In the case at

bar, the state and federal courts were in complete accord on

the “federal” issue. (i.e., whether Jackson’s constitutional

right to have nonstatutory mitigating evidence considered

was violated.)

The Eleventh Circuit observes that the application of

evidence to state law is a federal question and that the

Florida Supreme Court’s resolution of the issue is neither

binding nor relevant. The state submits that when, as here,

the issue of “harmless error” devolves into an issue of how

state law will be applied to new evidence, then the issue

becomes one of state law entitled to the same deference as

other state sentencing decisions, see Gryger v. Burke, 334

U.S. 728 (1948) and entitled, as well, to the same deference

given the federal district courts under Lipscomb.

In Marshall v. Lonberger, 459 U.S. 422, 432 (1983), a

similar distinction was recognized; to wit:

“We entirely agree with the Court of Appeals for the

Sixth Circuit that the governing standard as to

whether a plea of guilty is voluntary for purposes of the

Federal Constitution is a question of federal law....and

not a question of fact subject to the requirements of 28

U.S.C. § 2254(d). But the questions of historical fact

which have dogged this case from its inception...are

obviously questions of ‘fact’ governed by § 2254(d).”

Again, the “federal question” in this case was the question

of whether the sentencer considered nonstatutory mitigat-

ing evidence, not the impact of that evidence under state

14

law. Analogizing this case to Lipscomb, therefore, we find

that the constitutional violation is a “given” fact and the only

remaining issue is whether a new sentencing proceeding,

conducted without constitutional error, would produce the

same result.

The federal courts trust themselves to rule, under

Lipscomb, that the time and expense of a new sentencing

hearing need not be expended if the trial judge determines

that he would impose the same sentence anyway. Thus,

Lipscomb conserves limited judicial resources. That same

level of trust, or of “deference,” is not being extended to the

state courts. There is no legal, historical or factual basis for

this discrepancy. Marshall, supra; Rose, supra. Indeed, in

Coleman v. Thompson, __U.S.__, 115 L.Ed.2d 640, 670

(1991) this court underscored our position by holding:

“We also eliminate the inconsistency between the

respect federal courts show for state procedural rules

and the respect they show for their own.”

The Eleventh Circuit’s refusal to respect the Florida

Supreme Court’s “Lipscomb” determination is a clear-cut

illustration of the double-standard condemned in Coleman.

The decision denies the states due process by employing

arbitrary and capricious standards of review to § 2254 and

§ 2255 proceedings and it offends the concepts of comity and

federalism.

15

CONCLUSION

It is suggested that special and important reasons exist

for granting certiorari review.

Respectfully submitted,

ROBERT A. BUTTERWORTH

Attorney General

MARK C. MENSER

Fla. Bar No. 239161

Assistant Attorney General

DEPARTMENT OF LEGAL AFFAIRS

The Capitol

Tallahassee, FL 32399-1050

(904) 488-0600

COUNSEL FOR PETITIONERS

16

Case No.

IN THE

Supreme Court of the United States

October Term, 1991

HARRY K. SINGLETARY, Secretary, Florida Department

of Corrections, and

ROBERT A. BUTTERWORTH, Attorney General, State of

Florida,

Petitioners,

v.

CARL JACKSON,

Respondent.

APPENDIX TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE ELEVENTH CIRCUIT

ROBERT A. BUTTERWORTH

Attorney General

MARK C. MENSER

Assistant Attorney General

Florida Bar No. 239161

DEPARTMENT OF LEGAL AFFAIRS

The Capitol

Tallahassee, FL 32399-1050

(904) 488-0600

COUNSEL FOR PETITIONERS

INDEX TO APPENDIX

Documents Page(s)

Opinion

United States Court of Appeals

Mee na % es A-l

Opinion

Florida Supreme Court

March 9, 1978

Rehearing denied July 13,1978. ........ A-15

Opinion

Florida Supreme Court

July 28, 1983

Rehearing denied September 30,1983 ..... A-26

Opinion

Florida Supreme Court

Se eee eae A-32

Opinion

Florida Supreme Court

June 16, 1988

Rehearing denied September 19,1988 ..... A-40

Order Denying Rehearing

United States Court of Appeals

ibe A-45

Ruling of the Court At Hearing

United States District Court

Northern District of Florida

ES sb ae o 6-0 e whe eee ee A-47

Cari JACKSON,

Petitioner-Appellant,

Vv.

Richard L. DUGGER, Secretary,

Florida Department of Corrections,

Respondent-Appellee.

No. 90-3237

United States Court of Appeals,

Eleventh Circuit.

April 29, 1991.

Following affirmance, 359 So.2d 1190, of convictions of

robbery, kidnapping and two counts of first-degree murder

and sentence of death, petitioner sought writ of habeas

corpus. The United States District Court for the Northern

District of Florida, No. 90-50069, C. Roger Vinson, J., denied

relief and petitioner appealed. The Court of Appeals, Cox,

Circuit Judge, held that: (1) petitioner was not denied effec-

tive assistance of counsel, and (2) trial court erred in in-

structing jury to consider only statutorily enumerated

mitigating circumstances and in failing to consider non-

statutory mitigating circumstances.

Affirmed in part, reversed and remanded in part.

Appeal from the United States District Court for the

Northern District of Ftorida.

Before JOHNSON, EDMONDSON and COX, Circuit

Judges.

COX, Circuit Judge:

On April 20, 1975, Carl Jackson robbed a convenience

store and murdered the clerk, Ann Butler. In the process of

leaving, Jackson kidnapped Mary Price and later murdered

her. He was convicted in a Florida Court of robbery, kidnap-

ping and two counts of first-degree murder. He was sen-

tenced to death for the murders. He ultimately attacked his

convictions and death sentence by a 28 U.S.C. § 2254 peti-

tion filed in the Northern District of Florida. The district

court denied relief and Jackson appeals. We affirm the

district court’s denial of relief as to Jackson’s convictions,

but reverse the district court’s denial of relief relative to his

death sentence.

I. FACTS AND PROCEDURAL HISTORY?

On the morning of April 20, 1975, Cari Jackson persuaded

Jimmy Harris, a friend, to drive Jackson to a Jr. Food Store

in Bay County, Florida. Once Jackson went into the store,

Harris, not wanting to become further involved, drove away

leaving Jackson stranded. Jackson proceeded to rob the

store. During the robbery he shot and killed Ann Butler, the

store clerk on duty. While Jackson was committing the

robbery, Mr. and Mrs. Price, on their way to Sunday church

services, stopped at the store. Mr. Price went into the store,

leaving his car keys in the ignition and Mrs. Price in the car.

Jackson, unseen by Mr. Price, exited the store and, realizing

that Harris had left—him-stranded, commandeered the

Prices’ car with Mrs. Price in it. Mr. Price found the items

he wanted and went to the counter to pay for them. At the

1 This statement of the facts is based upon the Supreme Court of

Florida’s summary of the evidence at trial. Jackson v. State, 359 So.2d

1190 (Fla.1978), cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63

(1979).

counter he found Mrs. Butler lying on the floor dead. After

calling the police Mr. Price noticed that Mrs. Price and the

car were gone.

Jackson drove the Prices’ car a short distance to a secluded

area. Once there, he shot and killed Mrs. Price. Jackson then

abandoned the car. Although there was no direct evidence

that Jackson committed these acts, there was overwhelming

circumstantial evidence including one of Jackson’s

fingerprints in the Prices’ car, his bloody jacket near the car,

and the testimony of Jimmy Harris.

After an investigation, Jackson was indicted and tried for

the murders of Mrs. Butler and Mrs. Price, the kidnapping

of Mrs. Price and the robbery of the Jr. Food Store. The jury

found Jackson guilty on all four counts. A sentencing hear-

ing was held to determine whether Jackson should be sen-

tenced to death or life imprisonment for the murders.”

Under Florida law, both aggravating and mitigating cir-

cumstances could be presented at the hearing. The State,

relying on the evidence produced at trial to establish several

aggravating circumstances, produced no additional

evidence. The defense introduced the testimony of four

witnesses. Part of that testimony indicated that Jackson

had served eight years in the military, including three tours

of combat duty in Vietnam.

2 Jackson was sentenced to life imprisonment on the robbery charge

and fifteen years imprisonment on the kidnapping charge.

A-3

The jury, by a vote of 11-1, recommended that Jackson be

sentenced, to death. The trial judge, after finding five ag-

gravating® and no statutory mitigating circumstances, sen-

tenced Jackson to death. Jackson appealed to the Supreme

Court of Florida. The supreme court, after striking one of

the aggravating circumstances,‘ affirmed his convictions

and sentence, Jackson v. State, 359 So.2d 1190 (Fla.1978),

cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63

(1979), and the United States Supreme Court denied cer-

tiorari. Jackson v. Florida, 439 U.S. 1102, 99 S.Ct. 881, 59

L.Ed.2d 63 (1979).

Jackson then filed a motion for post-conviction relief pur-

suant to Fla.R.Crim.P. 3.850. The trial court rejected all of

Jackson’s claims and the Supreme Court of Florida affirmed

that ruling. Jackson v. State, 437 So.2d 147 (Fla. 1983), cert.

denied, 465 U.S. 1013, 104 S.Ct. 1016, 79 L.Ed.2d 246

(1984). After a death warrant was signed, Jackson filed a

second Rule 3.850 motion. Additionally, Jackson filed a

petition for a writ of habeas corpus in the Supreme Court of

Florida. The trial court again rejected Jackson’s Rule 3.850

claims. The supreme court affirmed the trial court’s ruling

and also denied Jackson’s petition for habeas corpus relief.

Jackson v. State, 452 So.2d 533 (Fla. 1984).

In June 1984, Ella Mae Wilson filed, on Jackson’s behalf,

a “next friend” petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. The district court, after initially staying

the petition, dismissed it without prejudice to allow Jackson

3 The five aggravating circumstances found by the court were: (1) the

murder of Ann Butler was committed during the course of a robbery; (2)

the murder of Ann Butler was committed for pecuniary gain; (3) the

murder of Mary Price was committed while Jackson was fleeing after the

robbery; (4) the murder of Mary Price was committed during a kidnap-

ping; and (5) the two murders were committed to avoid a lawful arrest.

4 The aggravating circumstance struck by the supreme court was that

the murder of Mrs. Butler was committed for pecuniary gain.

A-4

to exhaust his state remedies regarding the claim that his

sentencing hearing violated Hitchcock v. Dugger, 481 U.S.

393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987).

Thereafter, Jackson filed a second petition for a writ of

habeas corpus in the Supreme Court of Florida alleging that

his sentencing hearing violated Hitchcock. The supreme

court determined that Jackson’s sentencing hearing vio-

lated Hitchcock because the trial court’s instructions

precluded the jury from considering nonstatutory mitigat-

ing circumstances in determining Jackson’s sentence. The

court, however, concluded that any error that resulted from

such a violation was harmless beyond a reasonable doubt

because the nonstatutory mitigating evidence was “mini-

mal.” Jackson v. Dugger, 529 So.2d 1081, 1082 (Fla.1988).

In July 1989, Jackson filed a third petition for a writ of

habeas corpus in the Supreme Court of Florida alleging five

claims. The supreme court denied the petition without

opinion. Jackson v. Dugger, 554 So.2d 1168 (Fla.1989), cert.

denied, __U.S.___, 110 S.Ct. 3294, 111 L.Ed.2d 803 (1990).

Jackson then filed this petition for a writ of habeas corpus

in the Northern District of Florida alleging seventeen

A-5

claims.” The district court determined that Jackson’s sen-

tencing was in violation of the principle announced in

Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95

L.Ed.2d 347 (1987). The district court considered the harm-

less error issue a “very close question,” but concluded that

the Hitchcock violation was harmless beyond a reasonable

doubt. (R.4-5). The court then determined that none of the

remaining claims were “sufficiently meritorious to warrant

issuance of the writ.” Id. The court, however, issued a

certificate of probable cause to appeal, specifically focusing

5 Jackson’s petition raised seventeen claims. We will number the

claims as did Jackson’s petition. Six of Jackson’s claims sought to overturn

his convictions: (7) a claim that he received ineffective assistance of

counsel during the guilt/innocence phase of his trial; (8) a claim that he

received ineffective assistance of counsel on direct appeal; (14) a claim

that jurors were dismissed in violation of the principles announced in

Witherspoon v. Illinois; (15) a claim of improper argument by the prosecu-

tion during the guilt phase of the trial; (16) a claim that admission of

testimony to the effect that Jackson requested an attorney during a

custodial interrogation, and the prosecutor’s comment on Jackson being

provided an attorney after his arrest, violated his rights under the Fifth,

Sixth, Eighth and Fourteenth Amendments; and (17) a claim that

photographic evidence was improperly admitted at trial.

The remaining eleven of Jackson’s claims challenged his death

sentence: (1) a claim that he was sentenced in violation of the principle

stated in Hitchcock v. Dugger; (2) a claim that there was an improper

argument by the prosecutor during the sentencing phase of the trial which

created a “presumption of death”; (3) a Booth v. Maryland claim; (4) a

claim that the trial court erred by not finding the mitigating circumstance

of “no significant criminal history”; (5) a claim that he received ineffective

assistance of counsel during the sentencing phase of the trial; (6) a second

Hitchcock v. Dugger claim (Hitchcock error restricted defense counsel's

efforts); (9) a claim that the trial court failed to provide a factual basis for

imposition of the death penalty; (10) a claim that the Supreme Court of

Florida erred by not ordering a new sentencing hearing after striking one

aggravating circumstance; (11) a claim that the trial court misapplied

(doubled) aggravating circumstances in sentencing Jackson; (12) a claim

that the avoiding arrest aggravating circumstance was misapplied; and

(13) a claim that the jury was misinstructed on the number of votes

required to recommend life imprisonment.

A-6

on the claim that Jackson’s sentencing hearing violated

Hitchcock. Jackson now appeals the district court’s denial

of relief on eight of his seventeen claims.®

II. DISCUSSION

A. Claims Relating to Conviction

Jackson appeals the denial of relief on only one claim that

relates to his convictions. It is the claim that he was denied

effective assistance of counsel on direct appeal in violation

of his rights under the Fifth, Sixth, Eighth and Fourteenth

Amendments. Claims of ineffective assistance of counsel are

governed by the standard announced in Strickland v.

Washington, 446 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). “First, the defendant must show that counsel’s per-

formance was deficient.... Second, the defendant must show

that the deficient performance prejudiced the defense.” Id.

at 687, 104 S.Ct. at 2064. The defendant must satisfy both

parts of this standard to be entitled to relief.

Jackson argues that his appellate counsel was deficient in

failing to raise two issues on direct appeal that would have

resulted in the reversal of his convictions. First, he argues

that his appellate counsel was deficient in failing to assert

on direct appeal that potential jurors were dismissed by the

trial court in violation of the principle announced in

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20

L.Ed.2d 776 (1968). When presented with an identical

claim, the Supreme Court of Florida found that this issue

was not preserved for appellate review because no objection

6 Jackson appeals the district court’s denial of relief on only one claim

that relates to his convictions—claim (8). He also appeals the denial of

relief on seven claims that challenge his death sentence: claims

(1),(2),(3),(5),(9), (10) and (12).

to dismissal of these jurors was asserted in the trial court.

Jackson v. State, 452 So.2d 533, 536 (Fla. 1984).

[1,2] Jackson also argues that appellate counsel was defi-

cient in failing to assign as error prejudicial closing argu-

ments made by the State during the guilt/innocence phase

of the trial. The record in this case does not include a

transcript of the guilt/innocence phase of the trial, but

Jackson’s petition includes excerpts from the transcript

which set forth the arguments complained of. These ex-

cerpts do not reflect any objection on the part of trial counsel

to the arguments in question. Additionally, Jackson, in

another part of his petition, specifically asserts that counsel

failed to object to these arguments. R.1-4-157, 158. Under

Florida law, failure to assert appropriate objections at trial

bars review on appeal.’ Wilson v. State, 436 So.2d 908, 910

(Fla. 1983); State v. Cumbie, 380 So.2d 1031, 1033 (Fla. 1980);

Clark v. State, 363 So.2d 331, 333 (Fla. i978).

Since the matters complained of in this case were not

preserved for review on appeal, appellate counsel was pro-

cedurally barred frem raising them on direct appeal and

therefore was not deficient in failing to attempt to do so.

Beriolotti v. Dugger, 883 F.2d 1503, 1523 (11th Cir.1989),

cert. denied, __U.S.__, 110 S.Ct. 3296, 111 L.Ed.2d 804

(1990). Because Jackson has failed to show that appellate

counsel was deficient, the district court properly denied

relief on the claim that he received ineffective assistance of

counsel on direct appeal.

7 The general rule under Florida law is that failure of trial counsel to

object at trial bars appellate review. The sole exception to this rule is when

the error constitutes “fundamental error.” Clark v. State, 363 So.2d 331,

333 (Fla.1978). Jackson does not either in his petition or brief on appeal

contend that the arguments complained of presented “fundamental

error.”

A-8

B. Claims Relating to Sentence

i. Hitchcock Claim

[3] Jackson contends that his sentencing hearing violated

Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95

L.Ed.2d 347 (1987), because the jury was instructed to

consider only statutorily enumerated mitigating cir-

cumstances and because the judge did not consider non-

statutory mitigating circumstances in sentencing Jackson

to death. In Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct.

1821, 95 L.Ed.2d 347 (1987), the Supreme Court held that

an advisory jury may not be prohibited from considering

relevant nonstatutory mitigating circumstances in making

its sentencing recommendation and that the judge must

consider relevant nonstatutory mitigating circumstances in

determining an appropriate sentence. Jd. at 398-99, 107

S.Ct. at 1824. The Court concluded that a jury’s and judge’s

failure to consider such mitigating evidence violates the

principles announced in Skipper v. South Carolina, 476 U.S.

1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), Eddings v.

Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1(1982),

and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d

973 (1978 plurality opinion). Jd.

In this case, the State of Florida concedes, and both the

Supreme Court of Florida and the district court found, that

Jackson’s sentencing hearing violated Hitchcock. The trial

court’s jury instructions were almost identical to those given

in Hitchcock.2 We conclude that the jury, in violation of

8 In Hitchcock, the trial judge instructed the jury that “(t]he mitigat-

ing circumstances which you may consider shall be the following....” The

court then read the statutory mitigating factors set out in Fla.Stat.

921.141(6). See Hitchcock, 481 U.S. at 398, 107 S.Ct. at 1824. The trial

court at Jackson’s sentencing hearing instructed the jury {t]he mitigat-

ing circumstances which you may consider, if established by the evidence,

are these: [Listing statutory mitigating factors].” Transcript of sentencing

hearing at 795-96.

A-9

Hitchcock, was not permitted to consider mitigating cir-

cumstances in making its recommendation.

We also conclude that the trial judge did not consider

nonstatutory mitigating circumstances in sentencing Jack-

son. In support of this conclusion we note that the trial judge

instructed the jury only to consider statutory mitigating

circumstances. A trial court is presumed to follow the in-

structions given to the jury. See Daugherty v. Dugger, 839

F.2d 1426 (11th Cir.), cert. denied, 488 U.S. 871, 109 S.Ct.

187, 102 L.Ed.2d 156 (1988); Ziegler v. Dugger, 524 So.2d

419 (Fla.1988). Additionally, the trial court’s sentencing

order referred to “insufficient mitigating circumstances as

enumerated in Subsection (7) of said Section 921.141....”

R.S. 13. This was almost identical to the sentencing order

in Hitchcock. See Hitchcock, 481 U.S. at 398, 107 S.Ct. at

1824. The sentencing order does not mention nonstatutory

mitigating circumstances. Furthermore there were no on-

the-record statements by the trial judge indicating that he

would consider nonstatutory circumstances. These factors

support our conclusion that the trial judge did not consider

nonstatutory mitigating circumstances, in violation of

Hitchcock.

[4] Although we conclude that a Hitchcock violation oc-

curred, that does not automatically require a reversal of

Jackson’s sentence. If the Hitchcock error is harmless

beyond a reasonable doubt, then Jackson’s sentence need

not be reversed. See, e.g., Demps v. Dugger, 874 F.2d 1385

(11th Cir.1989), cert. denied, _U.S.___, 110 S.Ct. 1834, 108

L.Ed.2d 963 (1990); Clark v. Dugger, 834 F.2d 1561 (11th

Cir.1987), cert. denied, 485 U.S. 982, 108 S.Ct. 1282, 99

L.Ed.2d 493 (1988). A Hitchcock violation is harmless error

if the court can conclude beyond a reasonable doubt that the

nonstatutory mitigating evidence regarding the defendant’s

character that was not considered by the jury would not

have influenced the jury to recommend a life sentence. See

A-10

Demps vu. Dugger, 874 F.2d 1385, 1390 (11th Cir.1989), cert.

denied, __U.S.___, 110 S.Ct. 1834, 108 L.Ed.2d 963 (1990).

Nonstatutory mitigating evidence not considered by thejury

affects the jury’s recommendation if it amounts to a sig-

nificant mitigating circumstance. See Delap v. Dugger, 890

F.2d 285, 306 n. 23 (11th Cir.1989)“The presence of substan-

tial nonstatutory mitigating evidence in this case...is suffi-

cient to render the Hitchcock error not harmless beyond a

reasonable doubt”), cert. denied, _U.S.___, 110 S.Ct. 2628,

110 L.Ed.2d 648 (1990); Tufero v. Dugger, 873 F.2d 249, 252

n. 4(1ith Cir.1989\ per curiam error harmless where “(t]he

factors presented by Tafero contain little mitigating

value.”), cert. denied, __U.S.___, 110 S.Ct. 1834, 108

L.Ed.2d 962 (1990); Jones v. Dugger, 867 F.2d 1277, 1279

(11th Cir.1989X“resentencing is not required where the

nonstatutory mitigating evidence presented was so

insignificant....”).

The State of Fiorida concedes that nonstatutory mitigat-

ing evidence was presented to the jury but maintains that

this mitigating evidence was so insignificant that even if the

jury could have considered it, they would not have been

affected by it and the sentence recommendation would have

been the same. Therefore, the State argues, the Hitchcock

error was harmless beyond a reasonable doubt. This was the

position taken by the Supreme Court of Florida when it

reviewed Jackson’s Hitchcock claim. See Jackson v. Dugger,

529 So.2d 1081, 1082 (Fla.1988). The court stated that

“[vjiewed in its best light, the nonstatutory mitigating

evidence was minimal. We are convinced beyond a

reasonable doubt that even with the proper jury instruction,

the jury would not have made a recommendation of life

imprisonment for this double murder.” Jd.

[5] The State of Florida argues that this court is bound by

the supreme court’s determination that the error was harm-

less. We reject that argument. “The ultimate determination

A-11

of whether federal constitutional error is harmless is a

federal question” and therefore federal courts are not bound

by state court determinations of what constitutes harmless

error. Grizzell v. Wainwright, 692 F.2d 722, 725 (11th

Cir.1982), cert. denied, 461 U.S. 948, 103 S.Ct. 2129, 77

L.Ed.2d 1307 (1983). See also Booker v. Dugger, 922 F.2d 633,

636 n. 4 (11th Cir.1991).

{6] Jackson asserts that he produced significant evidence

of nonstatutory mitigating circumstances. He points to

evidence that he had served in the military for eight years;

he served overseas, including three tours of combat duty in

Vietnam; he was wounded in the chest while in Vietnam; he

was a religious person; he had no history of prior violence;

he had attempted to go to college; and he was amenable to

incarceration. After reviewing the transcript of the sentenc-

ing hearing, we conclude that Jackson’s military service is

a significant nonstatutory mitigating circumstance that the

jury was not allowed to consider. A psychologist, who inter-

viewed Jackson, testified that, “I believe he [Jackson] told

me he was in the army for eight years.... He said that he

was in Vietnam three times and on each of those occasions

he was in a combat situation for [a] fairly lengthy period of

time.” Sentencing Transcript at 741-42.

We believe that Jackson’s military service is in and of itself

a significant mitigating circumstance. We therefore need

not decide whether the other evidence presented by Jackson

was significant. The State argues that combat military

service alone is not a significant mitigating circumstance

and relies on this court’s opinion in Demps v. Dugger, 874

F.2d 1385 (11th Cir. 1989), cert. denied, ___U.S.___, 110 S.Ct.

1834, 108 L.Ed.2d 963 (1990), to support that position. In

Demps, the petitioner alleged that he had produced evidence

of military combat duty and argued that this would have

influenced the jury to recommend life instead of death. In

rejecting that argument, this court stated “that the record

A-12

reflects no evidence indicating any overseas combat ex-

perience.” Jd. at 1390. Thus, the Demps court concluded that

Demps had failed to produce any nonstatutory significant

mitigating evidence rather than that military combat ser-

vice is not a significant mitigating circumstance.

We conclude that Jackson presented significant non-

statutory mitigating evidence that was not considered by

the jury or judge because of the Hitchcock violation. We do

not hold that military service, regardless of type and dura-

tion, is a significant nonstatutory mitigating circumstance.

We do hold that Jackson’s military service, as reflected by

the record in this case, is significant. We cannot say beyond

a reasonable doubt that this mitigating evidence would not

have affected the jury's recommendation. Jackson’s military

service is a significant circumstance on which reasonable

jurors could base a decision to recommend life imprisonment

instead of death. We will not speculate about the actual

effect of such evidence on a judge or jury. The district court

erred by concluding that the error was harmless and by

denying relief regarding Jackson’s sentence.

ii. Other Claims Relating to Sentence

Jackson also appeals the denial of relief on six other claims

that challenge his death sentence. Because we hold that he

is entitled to a new sentencing hearing, we do not address

these claims.

III. CONCLUSION

We AFFIRM the district court’s order denying relief

regarding Jackson’s convictions. We conclude that Jackson’s

sentencing hearing violated Hitchcock v. Dugger and that

the error was not harmless beyond a reasonable doubt. We

A-13

therefore REVERSE the district court’s order denying relief

regarding Jackson’s sentence and REMAND to the district

court with instructions to enter an order granting the peti-

tion for a writ of habeas corpus unless the State of Florida,

within a reasonable time, either: (a) affords Jackson a new

sentencing hearing and resentences Jackson in a proceeding

that is consistent with the requirements of Hitchcock; or (b)

vacates the death sentence and imposes a lesser sentence

consistent with law.

AFFIRMED IN PART; REVERSED AND REMANDED

IN PART.

A-14

Carl JACKSON, Appellant,

v.

STATE of Florida, Appellee.

No. 48165.

Supreme Court of Florida

March 9, 1978.

Rehearing Denied July 13, 1978.

Defendant was convicted by a jury in the Circuit Court,

Bay County, Mercer P. Spear, J., of robbery, kidnapping, and

two counts of first-degree murder and was sentenced to

death. Defendant appealed. The Supreme Court held that:

(1) trial court did not abuse its discretion in denying

defendant’s motion for change of venue; (2) death penalty

statute is constitutional; (3) three photographs of victims

were admissable, even though gruesome, inasmuch as such

photographs were relevant; (4) sheriff’s statement on cross-

examination by defense counsel that defendant had stated

that he wanted a lawyer after he was advised of his Miranda

rights and was warned that he was going to be asked

questions regarding two murdered women was admissable;

(5) defendant by voluntary seeking out law enforcement

officer to make a statement after being fully advised of his

rights on two occasions thereby waived protection afforded

by Miranda with result that such statement was admis-

sable, and (6) where there was a doubling up of aggravating

circumstances but no mitigating circumstances, death sen-

tence was upheld.

Judgement affirmed and death sentence upheld.

A-15

Hatchett, J., concurred specially with an opinion.

Boyd, J., concurred in part and dissented in part with an

opinion.

Louis G. Carres, Asst. Public Defender, Tallahassee, for

appellant.

Robert L. Shevin, Atty. Gen., and Richard W. Prospect,

Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Appellant, Carl Jackson, was convicted on two counts of

murder in the first degree. The jury recommended and the

trial judge imposed a sentence of death. Jurisdiction vests

in this court pursuant to Article V, Section 3(bX 1), Florida

Constitution. We affirm the conviction and sentence.

On Sunday morning, April 20, 1975, Ann Patterson Butler

was found shot in the head behind the counter of the Jr. Food

Store in Bay County, Florida. A short time later, the corpse

of Mary Frances Price was found in the front seat of a

Chrysler automobile parked in a cemetery a short distance

away. There were no witnesses to the actual killings. The

following facts were adduced at trial:

On the morning of April 20, 1975, Jimmy Harris, an

acquaintance of Jackson’s, stopped by appellant’s apart-

ment to collect a debt. Appellant asked Harris to drive him

to a friend’s house to pick up the money. Instead of directing

Harris to the other person’s house, however, Jackson with a

gun in his belt, told Harris to stop at a Jr. Food Store. He

then got out of the car and ordered Harris to drive around

1 Appellant was also convicted of robbery and kidnapping for which

he received the following sentences: life imprisonment on the robbery

charge and 15 years on the kidnapping charge.

A-16

the block, return, and pick him up. Harris drove away but

did not return. Later that day, after hcaring that the Jr. Food

Store had been robbed, Harris went to the police and related

the above information concerning appellant’s earlier

activities.

That same morning, Mr. and Mrs. Price stopped at the Jr.

Food Store on their way to church. Mrs. Price waited in the

car while Mr. Price went into the store. The keys to the car

remained in the ignition. When Mr. Price entered the store,

he turned left, away from the counter, and walked to the far

corner of the building. After finding the item he wished to

purchase, he approached the counter where he found Mrs.

Butler, the sales clerk, lying on the floor in a pool of blood.

He immediately telephoned the police and then looked out

the front door and discovered that his wife and his car were

missing. Both were found in a cemetery a few blocks away

from the Jr. Food Store. Mrs. Price had been shot in the head

at close range.

During the course of the investigation, appellant’s jacket

was discovered in the woods a few feet from the abandoned

car. His girlfriend testified that he was wearing the jacket

when he left their apartment on Sunday morning and

returned later that day without it. Another witness testified

that shortly after the robbery had taken place he saw

appellant in the vicinity walking along the road and stépped

to offer him a ride. Once inside the vehicle, appellant asked

the witness if he had heard about the murder in the

cemetery. Mrs. Price had not at this time been found. In

addition, appellant’s fingerprints were found on a package

of cigarettes in the front seat of the Prices’ car.

The evidence against appellant, though circumstantial,

was strong.

[1,2] Appellant raises five points on appeal. First, he

argues that the trial court erred in denying his motion for

A-17

change of venue. It is his contention that, due to pretrial

publicity, it was impossible for him to receive a fair and

impartial trial in Bay County. Twenty-two of the prospective

jurors examined admitted to having read about the case or

having heard about it on the radio or television. Nine

prospective jurors knew one of the victims or knew one or

more of the witnesses who would testify at trial. This issue

is governed by the test stated in Kelley v. State, 212 So.2d

27 (Fla.2d DCA 1968), which we adopted in McCaskill v.

State, 344 So.2d 1276, Opinion filed April 7, 1977:

Knowledge of the incident because of its notoriety is

not, in and of itself, grounds for a change of venue. The

test for determining a change of venue is whether the

general state of mind of the inhabitants of a community

is so infected by knowledge of the incident and accom-

panying prejudice, bias, and preconceived opinions that

jurors could not possibly put these matters out of their

minds and try the case solely upon the evidence

presented in the courtroom. Singer v. State (Fla.1959)

109 So.2d 7; Collins v. State (Fla.App.1967) 197 So.2d

574, and cases cited therein. Kelley v. State, 212 So.2d

at 28.

The prospective jurors, when questioned, stated that they

could decide the issues between the state and the appellant

based upon the evidence heard and the exhibits examined

in the courtroom. We find nothing in the record to indicate

that the trial judge abused his discretion in denying

appellant’s motion for change of venue.

[3] In appellant’s second point he attacks the con-

stitutionality of Florida’s death penalty. Similar attacks

were rejected by this court in State v. Dixon, 283 So.2d 1

(Fla.1973), and by the United States Supreme Court in

Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d

913 (1976). These cases are dispositive of this issue.

A-18

Bc

[4-6] Appellant’s third point involves the admission into

evidence of three photographs taken of the victims and

admitted over appellant’s objections. It is appellant’s con-

tention that these pictures were unnecessary and served

only to inflame the passions of the jury. Indeed, the pictures

complained of are gruesome. However, as we stated in Young

v. State, 234 So.2d 341 (Fla.1970):

The fact that the photographs are offensive to our

senses and might tend to inflame the jury is insufficient

by itself to constitute reversible error, but the admis-

sion of such photographs...must have some relevancy,

either independently or as corroborative of other

evidence. (footnotes omitted)

And again, in State v. Wright, 265 So.2d 361 (Fla. 1972):

[Tjhe current position of this court is that allegedly

gruesome and inflammatory photographs are admis-

sible into evidence if relevant to any issue required to

be proven in a case. Relevancy is to be determined in

the normal manner, that is, without regard to any

special characterization of the proffered evidence.

Under this conception, the issues of “whether cumula-

tive”, or “whether photographed away from the scene,”

are routine issues basic to a determination of relevancy,

and not issues arising from any “exceptional nature” of

the proffered evidence.

See also Bauldree v. State, 284 So.2d 196 (Fla.1973), and

Swan v. State, 322 So.2d 485 (Fla.1975). Applying this test

of admissibility to this case, we hold that the photographs

were relevant and that no error was committed in admitting

them into evidence. However, we again caution the

prosecutors of this state that gory and gruesome

photographs admitted primarily to inflame the jury will

result in a reversal of the conviction.

A-19

[7-9] Appellant also challenges the admission of certain

statements elicited at trial regarding the exercise of his

Miranda rights. The Bay County Sheriff was sworn as a

witness for the state and related the following facts: Upon

arrest, appellant was advised of his constitutional rights

pursuant to the procedure outlined in Miranda v. Arizona,

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), after

which he discussed his whereabouts on the morning of the

murders and described the clothing he was wearing on that

date. The sheriff then warned Jackson that he was going to

ask him questions regarding the two women who were

murdered, whereupon the defendant stated, “I want a

lawyer.” It is appellant’s contention that the sheriff’s state-

ment constitutes an impermissible comment upon

appellant’s exercise of his rights under the Fifth and Sixth

Amendments to the United States Constitution. Appellant

correctly states our holding in Bennett v. State, 316 So.2d 41

(Fla.1975), that any comment upon a defendant’s standing

mute or silent or refusing to testify in the face of an accusa-

tion is fundamental error requiring reversal for a new trial.

But this is not a Bennett situation. In Bennett the prosecutor

elicited testimony from his own witness to the effect that

after being advised of his constitutional rights, defendant

“refused to sign the waiver....” This statement suggests that

defendant had a duty to respond and was held to be an

impermissible comment on defendant’s exercise of his Fifth

Amendment rights. In the present case, the appellant’s

statement, “I want a lawyer” was brought out on cross-ex-

amination by counsel for the defense.” But for the insistence

2 Q All right, Sheriff, at this point did you show the defendant, this

defendant, Carl Jackson, this is the defendant that you were talking to,

right here? (Indicating.)

A Yes, sir.

Q Did you show Carl Jackson anything?

A Yes, sir.

A-20

of appellant himself, the fact would not have come before

the jury. Appellant cannot initiate error and then seek

reversal based on that error. Gagnon v. State, 212 So.2d 337

(Fla.3d DCA 1968); Borst v. Gale, 99 Fla. 376, 126 So. 290

(1930).

Q All right, I show you State’s Exhibit Number One for Identifica-

tiun and ask you if you can identify that?

A Yes, sir, this is a brown jacket which I took out of a bag and handed

it toward Carl Jackson, and he said—I said, “Is this your jacket?” And he

said, “That’s my jacket.”

Q Ifthe Court please, we move to introduce the jacket as State’s

Exhibit Number One for Identification into evidence.

THE COURT: Do you desire to cross examine the witness?

MRS. COSTELLO: One moment, Your Honor.

THE COURT: Well, the Court will withhold ruling until the defen-

dant has had the opportunity to cross examine the witness.

MR. JONES: You may inquire.

CROSS EXAMINATION BY MRS. COSTELLO:

Q How do you know thisis the jacket that you showed Carl Jackson?

THE WITNESS:

A I initialed it, and the date, right here. Here are my initials and

the date. (Indicating.)

Q Okay, and you put those on at that time?

A Yes, Ma’am.

Q Mr. Jackson said that was his jacket?

A Yes Ma’am.

Q He had previously denied having a jacket, is that correct?

A Yes.

Q That was not in question and answer form, was it?

A Repeat that, please, Ma’am.

Q Sheriff, you just read the statement to the jury you say you took

from Mr. Jackson. They were in question and answer form, is that correct?

A Yes.

Q An in that statement Mr. Jackson denied having a jacket, is that

correct?

A There’s two situations. He said he was wearing a jacket on one

question in this statement, and then another one he said he wasn’t

wearing a jacket.

Q All right. Why wasn’t this oral statement taken down and

recorded by the stenographer?

A It was.

Q Not in question and answer form, was it?

A-21

[10] Later that evening, after appellant had informed the

sheriff that he wished to speak to a lawyer, but before a

lawyer was summoned, appellant asked to speak to the chief

investigator concerning the charges against him. At this

time, appellant was again advised of his rights, whereupon

he proceeded to make a statement. Although appellavt

denied any involvement in the murders for which he was

A This—

Q The part where you say he admits that’s his jacket, that particular

jacket?

A I see what you're getting at. When I asked—he answered the

question, “Why are you trying to say something?” And the question, it

wasn't really a question, it was a statement, “I want to talk te you about

those two women that were murdered.”

Q At that point, that was the period where the stenographer stopped

taking down questions and answers in that form, is that correct?

A Right. I reached down, there was a bag sitting at my feet, betweer.

Mr. Jackson and myself. I reached down and pulled this jacket out of the

bag and handed it toward him, unfolded it, and said, “Is this your jacket?”

Q I understand that was your statement.

MR. JONES: Let the sheriff finish his explanation.

MRS. COSTELLO: I don’t think he’s responding to the question.

THE COURT: Go ahead and proceed.

THE WITNESS:

A What do you want me to do now?

(Laughter.)

THE COURT: Ladies and gentlemen, we are very happy to have all

of you here in court. You have a perfect legal right to be here. We want you

here to see your court in operation. Aman is on tria! for his life here today.

This is a very serious matter. There’s nothing funny about it. Now, this is

several times that we’ve had to have order in the courtroom. We do not

wish to clear the courtroom. We wish to have you here so that you may see

your court in operation. But, you must realize this. You must conduct

yourselves accordingly. You may proceed.

MRS. COSTELLO: Thank you, your Honor. Sheriff, I would just like

for you to explain why the form that you had previously followed, asking

questions and receiving responses that were recorded by the stenographer,

why that was stopped.

THE WITNESS:

A The statement says—

Q Sheriff, I don’t think—

THE COURT: Let him finish his answer.

A-22

later tried, the substance of the statement was damaging

because it was inconsistent with prior statements. Appel-

lant contends that the trial court erred in admitting the

statement into evidence. We find no authority to uphold his

position. There is nothing in the record to indicate that the

interrogation by the sheriff did not cease once appellant

requested an attorney. The decision to have a lawyer is not

irrevocable. If the evidence shows, as it does in this case,

that a defendant voluntarily seeks out a law enforcement

officer to make a statement, after being fully advised of his

rights on two occasions, he may do so, thereby waiving the

protection afforded by Miranda. See Michigan v. Mosley, 423

U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), wherein the

United States Supreme Court held that a statement given

by defendant to an investigating officer was admissable

even though the defendant had asserted his right to remain

silent during an earlier interrogation that same day.

ea ws aK.

Having determined that no reversible error has been

made to appear which would require a new trial, we proceed

to examine the sentence imposed.

THE WITNESS:

A I'm just reading the statement. The statement says—+the suspect,

at this point, said he didn’t know anything about what we were talking

about. At this point I pulled the jacket out. I said—at this point I pulled

out a tan jacket from the bag and unfolded it and asked if that was his

jacket. The suspect said it was, and I asked him where he left it and he

said that he left it in the car. At this point, he said, “I want a lawyer.”

A-23

[11] In the trial court’s written findings,° upon which the

sentence of death was based, the Court considered as a

separate aggravating circumstance the fact that the murder

of Mrs. Butler was committed for pecuniary gain [Section

921.141(5\f), Florida Statutes (1973)] while appellant was

engaged in the commission of a robbery [Section

921.141(5Xd), Florida Statutes (1973)]. We have held that

this procedure constitutes error, at least where mitigating

circumstances are present. Provence v. State, 337 So.2d 783

(Fla.1976). Where there is a doubling up of aggravating

circumstances, but no mitigating circumstances, as is the

case here, a sentence of death may be upheld. Elledge v.

State, 346 So.2d 998 (Fla.1977).

Accordingly, the judgement is affirmed and the sentence

of death upheld.

It is so ordered.

OVERTON, C. J., and ADKINS, ENGLAND,

SUNDBERG and KARL, JJ., concur.

HATCHETT, J., concurs specially with an opinion.

3 The Court finds, from the evidence, that sufficient aggravating

circumstances exist as enumerated in Subsection (5) of Section 921.141,

Florida Statutes, that justify a sentence of death, and that there are

insufficient mitigating circumstances, as enumerated in Subsection (6) of

said Section 921.141, to outweigh the aggravation circumstances. The

aggravating circumstances found by the Court are as follows:

1. The murder of ANN PATTERSON BUTLER was committed while

the Defenda t was engaged in commission of a robbery.

2. The murder of ANN PATTERSON BUTLER was committed for

pecuniary gain.

3. The murder of MARY FRANCES PRICE was committed while

the Defendant was engaged in flight after committing a robbery.

4. The murder of MARY FRANCES PRICE was committed while

the Defendant was engaged in the commission of the crime of kidnapping.

5. It is the Court’s opinion, from the evidence, that both of the

aforesaid capital felonies were committed for the additional purpose of

avoiding a lawful arrest.

A-24

BOYD, J., concurs in part and dissents in part with an

opinion.

HATCHETT, Justice, concurring specially.

In Spenkelink v. State, 350 So.2d 85 (Fla.1977), I ex-

pressed by belief that Section 921.141, Florida Statutes

(1975), is unconstitutional on its face and as applied. Both

the United States Supreme Court and this Court have held

otherwise. I see no purpose to be served by reiterating my

views in future cases where the death penalty is imposed.

BOYD, Justice, concurring in part, dissenting in part.

I concur in affirmance of the judgement of guilt. I dissent

to upholding the sentence because of the improper doubling

of the aggravating circumstances. Provence v. State, 337

So.2d 783 (Fla.1976).

In a case where the stakes, life or death, are so great, I

cannot treat that mistake as lightly as does the majority. I

do not read Elledge v. State, 346 So.2d 998 (Fla.1977), to hold

otherwise. The existence of unknown mitigating cir-

cumstances in Elledge and the finding of none by the trial

judge here is not a sufficient basis, to my mind, for not

applying the Elledge reasoning. The following, from Elledge,

summarizes my view,

Would the result of the weighing process by both the jury

and the judge have been different had the impermissible

aggravating factor not been present? We cannot know. Since

we cannot know and since a man’s life is at stake, we are

compelled to return this case for a new sentencing trial at

which the [impermissible factor] wii! not be considered.

Elledge, at 1003.

I would vacate the sentence of death and remand for anew

sentencing proceeding.

A-25

Carl JACKSON, Appellant,

v.

STATE of Florida, Appellee.

No. 60202.

Supreme Court of Florida.

July 28, 1983.

Rehearing Denied Sept. 30, 1983.

The Circuit court in and for Bay County, W. Fred Turner,

J., denied motion for postconviction relief, and movant ap-

pealed. The Supreme Court, Adkins, J., held that movant,

who was found guilty of robbery, kidnapping and two counts

of first-degree murder and sentenced to death, was not

denied effective assistance of counsel at trial, sentencing or

on appeal.

Affirmed.

Ebrlich, J., dissented.

Larry G. Turner of the Law Offices of Larry G. Turner, and

Bill Salmon of the Law Offices of Bill Salmon, Gainesville,

for appellant.

Jim Smith, Atty. Gen. and David P. Gauldin, Asst. Atty.

Gen., Tallahassee, for appellee.

ADKINS, Justice.

This is an appeal from an order of the Circuit Court of the

Fourteenth Judicial Circuit in and for Bay County denying

A-26

a motion for post-conviction relief. We have jurisdiction. Art.

V, 3(bX 1), Fla. Const. ;

ee ee ene

Appellant, Carl Jackson, was charged with robbery, kid-

napping, and two counts of first-degree murder. The crimes

are described in more detail in our opinion in Jackson v.

State, 359 So.2d 1190 (Fla.1978), cert. denied, 439 U.S. 1102,

99 S.Ct. 881, 59 L.Ed.2d 63 (1979)(hereinafter Jackson I).

Ms. Dedee Costello was appointed to represent appellant at

trial and entered on his behalf a plea of not guilty. He was,

however, found guilty on all counts.

At the conclusion of the sentencing phase of the trial, the

jury recommended that appellant be put to death for both

murders. The trial court concurred and imposed the death

penalty, which this Court affirmed. Jackson I. Appellant

thereafter filed in the circuit court, pursuant to Rule 3.850,

Florida Rules of Crimina! Procedure, a motion for post-con-

viction relief alleging several infirmities in the conduct of

his trial. The circuit court denied the motion and this appeal

followed.

[1] Three of the four issues argued by appellant are

matters that could or should have been raised on direct

appeal, and so are not cognizable in this proceeding. Adams

v. State, 380 So.2d 423 (Fla.1980). Appellant’s allegations

that the excusal of certain prospective jurors violated

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20

L.Ed.2d 776 (1968), could and should have been raised in

his initial appeal to this Court. Meeks v. State, 382 So.2d 673

(Fla.1980). Similarly, he should have argued the questions

of whether the trial court erred by not ordering a presen-

tence investigation and whether the judge’s jury instruc-

tions and sentencing order violated the decision in Lockett

v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

We need not consider those three issues in this opinion

A-27

[2] The issue properly raised in this proceeding is

appellant’s contention that the trial court erred in finding

that he was afforded effective assistance of counsel at trial,

sentencing, and appeal. First in the list of alleged errors and

omissions is defense counsel's “failure to adequately conduct

discovery, investigate, and prepare in anticipation of trial.”

Appellant notes that his attorney deposed only one of the

more than twenty potential witnesses named on a list

provided by the state and so was “obviously disadvantaged”

in her cross-examination of the state’s witnesses. The lack

of depositions also hindered counsel’s attempts to have

suppressed certain evidence introduced at trial, claims

appellant.

Next in the list of alleged errors are the failure to timely

object to the introduction of a fingerprint which appellant

claims was not properly marked as his and counsel’s “inef-

fective” efforts to obtain a change in venue. Both are at-

tributed to his attorney’s “lack of experience and

preparation.”

Defense counsel’s voir dire examination of potential jurors

is faulted in several ways. Appellant argues that the issues

of pre-trial publicity and racial bias were only cursorily and

ineffectively delved into, and that counsel’s Witherspoon

inquiry was giaringly deficient. Also faulted are his counsel’s

failure to request sequestered voir dire of certain prospec-

tive jurors and to ask for additional peremptory challenges

after using the forty allotted appellant.

The total “failure to investigate and present a defense” is

a significant example of the inadequate representation

which he received, claims appellant. He argues that his

lawyer was made aware of several individuals whose tes-

timony might have provided-an alibi defense, and that she

failed to investigate and develop the same simply because

an assistant state attorney assured her that the men in

A-28

ee en ae walk

question would testify that they had not been with appellant

at the relevant times. Finally, appellant notes that his

counsel failed to request jury instructions on the effect of a

jury recommendation of mercy and did not request a presen-

tence investigation report before the trial court passed

sentence.

In Knighi v. State, 394 So.2d 997 (Fia.1981), we estab-

lished the standards which must be met by a party alleging

ineffective assistance of counsel as here. The four-part test

requires:

First, the specific omission or overt act upon which

the claim of ineffective assistance of counsel is based

must be detailed in the appropriate pleading.

Second, the defendant has the burden to show that

this specific omission or overt act was a substantial and

serious deficiency measurably below that of competent

counsel. As was explained by Judge Leventhal in

DeCoster III [United States v. DeCoster, 624 F.2d 196

(D.C.Cir.1979)]: “To be ‘below average’ is not enough,

for that is self evidently the case half the time. The

standar< of shortfall is necessarily subjective, but it

cannot be established merely by showing that counsel’s

acts or omissions deviated from a checklist of stand-

ards.” 624 F.2d at 215. We recognize that in applying

this standard, death penalty cases are different, and

consequently the performance of counsel must be

judged in light of these circumstances.

Third, the defendant has the burden to show that this

specific, serious deficiency, when considered under the

circumstances of the individual case, was substantial

enough to demonstrate a prejudice to the defendant to

the extent that there is a likelihood that the deficient

conduct affected the outcome of the court proceedings.

In the case of appellate counsel, this means the

deficiency must concern an issue which is error affect-

ing the outcome, not simply harmless error. This

A-29

requirement that a defendant has the burden to show

prejudice is the rule in the majority of other jurisdic-

tions.

Fourth, in the event a defendant does show a sub-

stantial deficiency and presents a prima facie showing

of prejudice, the state still has an opportunity to rebut

these assertions by showing beyond a reasonable doubt

that there was no prejudice in fact. This opportunity to

rebut applies even if a constitutional violation has been

established.

394 So.2d at 1001 (footnote omitted).

Although appellant met the first requirement above, he

failed to show that most of the omissions were serious

deficiencies beyond what would be expected of competent

counsel. His expert witness’ testimony that defense

counsel’s pre-trial discovery and motions were inadequate

was countered by that of appellee’s expert witness who

stated that the representation provided was “reasonably

effective.” The trial court agreed with appellee’s witness and

nothing in the record compels us to disturb that result.

The lack of objection to the labeling of the fingerprint also

fails to convince us that counsel was ineffective. Even if we

agreed that such was measurably below what is expected of

competent attorneys, it certainly did not so prejudice appel-

lant that he might otherwise not have been found guilty,

since it was not disputed that his fingerprint was found at

the scene.

The remainder of the alleged shortcomings may be dis-

missed in a similar manner. The “failure to investigate and

present a defense” and to request instructions on the effect

of a jury recommendation of mercy do not fall measurably

below the standard expected of competent counsel. Although

appellant is obviously dissatisfied with the result of the

defense that was presented, we will not use the perfect

A-30

vision of hindsight and label that defense incompetent. It

was, under the circumstances, a reasonable strategy.

Defense counsel’s voir dire examination regarding

pretrial publicity, racial bias, and imposition of the death

penalty was not so lacking as to be considered incompetent.

If it was deficient at all, it was not substantial enough to

demonstrate a prejudice to appellant so severe that it af-

fected the outcome of the proceedings. The record shows that

appellant’s guilt was clearly and convincingly demonstrated

by more than adequate evidence. Any shortcomings in voir

dire were not the conclusive and decisive factors in his

conviction.

As the trial court noted in denying appellant’s rule 3.850

motion, a “textbook defense” is not the requirement here.

The trial court heard the arguments in the 3.850 hearing,

considered the expert testimony presented by both sides,

and determined that the representation afforded appellant

was adequate. None of the arguments raised convince us

that said decision was unsubstantiated or incorrect, and so

the trial court’s decision is affirmed.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVERTON and

McDONALD, JJ., concur.

EHRLICH, J., dissents.

A-31

Carl JACKSON, Appellant,

v.

STATE of Florida, Appellee.

Carl JACKSON, Petitioner,

v.

Louie L. WAINWRIGHT, Respondent.

Carl JACKSON, Petitioner,

v.

STATE of Florida, Respondent.

Nos. 65429, 65430 and 65431.

Supreme Court of Florida.

June 12, 1984.

Defendant, who was sentenced to death on a murder

conviction, appealed from an order of the Circuit Court, Bay

County, W. Fred Turner, J., denying his second motion for

postconviction relief and filed petitions for writs of habeas

corpus and extraordinary relief. The Supreme Court, Ad-

kins, J., held that: (1) appellate counsel was not ineffective

for failing to raise issues which were not properly preserved

at trial; (2) defendant was not entitled to a hearing that

would be in addition to and aside from that determination

made by the governor’s commission of psychiatrists as to

whether he was competent to be executed; and (3) defendant

A-32

ns ni Staal

Neh te a Rat a Si ak’, ve Apia

was not entitled to a judicial determination of his competen-

cy to assist counsel either in preparing a postconviction

motion or a petition for writ of habeas corpus.

Affirmed; petitions for habeas corpus and extraordinary

relief denied; and application for stay of execution denied.

Overton, J., concurred specially with an opinion.

Larry G. Turner and Robert S. Griscti of Turner, Kurrus

& Griscti, Gainesville, and William B. Salmon of the Law

Offices of William B. Salmon, Gainesville, for appel-

lant/petitioner.

Jim Smith, Atty. Gen. and David P. Gauldin, Asst. Atty.

Gen., Tallahassee, for appellee/respondent.

ADKINS, Justice.

This is an appeal from an order of the Circuit Court of the

Fourteenth Judicial Circuit in and for Bay County denying

appellant’s second motion for post-conviction relief. We also

have before us a petition for habeas corpus. We have juris-

diction. Art. V, § 3(b)(1),(9), Fla. Const.

Carl Jackson (hereinafter appellant), was convicted of

robbery, kidnapping, and two counts of first-degree murder.

This Court affirmed the murder conviction and sentence of

death in Jackson v. State, 359 So.2d 1190 (Fla.1978), cert.

denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63

(1979 hereinafter Jackson I). Appellant then filed a motion

in the circuit court for post-conviction relief pursuant to

Rule 3.850, Florida Rules of Criminal Procedure alleging

several infirmities in the conduct of his trial. The circuit

court denied the motion. This Court affirmed. Jackson uv.

State, 437 So.2d 147 (Fla.1983), cert. denied, _U.S.___, 104

S.Ct. 1016, 79 L.Ed.2d 246 (1984\hereinafter Jackson II).

Appeilant then filed a second 3.850 motion in the circuit

A-33

court, a motion for a hearing and appointment of experts for

determinations of defendant’s competency and for a stay of

execution during the pendency thereof, and an application

for a stay of execution. The circuit court denied the motions

and this appeal followed. Appellant has also filed a petition

for writ of habeas corpus in this proceeding. For the reasons

which we express below, we affirm the denial by the circuit

court of appellant’s second 3.850 motion and his motion for

a judicial determination of competency. Appellant’s petition

for writ of habeas corpus and his application for a stay of

execution are also hereby denied.

Appeilant contends in his second 3.850 motion that under

the standard enunciated by the United States Supreme

Court in Strickland v. Washington, __U.S.___, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), he received ineffective assis-

tance of counsel at his trial. He argues that the United

States Supreme Court in that opinion announced new

standards for assessing ineffectiveness claims and specifi-

cally rejected the standards of Knight v. State, 394 So.2d 997

(Fla.1981), by which we judged appellant’s claim in his first

3.850 motion.

In Knight v. State, this Court adopted four principles

encompassed in United States v. DeCoster, 624 F.2d 196

(D.C.Cir.1979Xen banc), by which a claim of ineffective

assistance of counsel must be judged:

First, the specific omission or overt act upon which

the claim of ineffective assistance of counsel is based

must be detailed in the appropriate pleading.

Second, the defendant has the burden to show that

this specific omission or overt act was a substantial and

serious deficiency measurably below that of competent

counsel....

Third, the defendant has the burden to show that this

specific, serious deficiency, when considered under the

circumstances of the individual case, was substantial

A-34

“sr. So

enough to demonstrate a prejudice to the defendant to

the extent that there is a likelihood that the deficient

conduct affected the outcome of the court

proceedings....

Fourth, in the event a defendant does show a sub-

stantial deficiency and presents a prima facie showing

of prejudice, the state still has an opportunity to rebut

these assertions by showing beyond a reasonable doubt

that there was no prejudice in fact.

394 So.2d at 1001.

In Strickland v. Washington, the United States Supreme

Court held that a defendant’s claim of ineffective assistant

of counsel has two components:

First, the defendant must show that counsel’s perfor-

mance was deficient. This requires showing that coun-

sel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant

by the Sixth Amendment. Second, the defendant must

show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors

were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable.

104 S.Ct. at 2064.

[1] To further explain the appropriate test for proving

prejudice, the Court then held that “[t}he defendant must

show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the out-

come.” Id. at 2068. We are of the opinion that this test does

not differ significantly with the Knight standard of “a

likelihood that the deficient conduct affected the outcome of

the court proceedings;” hence, we do not reconsider our first

A-35

opinion denying appellant’s claim of ineffectiveness of trial

counsel.

[2] Appellant argues next in his second 3.850 motion that

the death penalty in Florida is imposed in an arbitrary and

discriminatory manner on the basis of race. This issue has

been foreclosed by this Court in Sullivan v. State, 441 So.2d

609 (Fla.1983). More recently, the United States Supreme

Court in Wainwright v. Ford, No. A-980, 3 (U.S. May 31,

1984), noted that “the statistical evidence relied upon by

Ford to support his claim of discrimination was not suffi-

cient to raise a substantial ground upon which relief might

be granted.” Appellant here relies on the same statistical

evidence presented by Ford in his appeal; hence, there is no

merit to this issue.

Finally, regarding appellant’s other issues raised in his

3.850 motion, we agree with the trial judge that these could

have been raised, should have been raised, or were raised in

previous proceedings either on direct appeal or in his first

3.850 motion. Meeks v. State, 382 So.2d 673 (Fla.1980).

[3] Appellant has also filed a petition for writ of habeas

corpus in this Court, alleging ineffective assistance of appel-

late counsel. We find that only one of these points merits

discussion, because the alleged errors were not preserved at

trial. Appellate counsel cannot be ineffective for failing to

raise issues which were not properly preserved at trial,

because the appellate court may not review those issues.

State v. Barber, 301 So.2d 7 (Fla.1974).

Appellant does allege that a proper objection was made in

the trial court concerning an alleged Witherspoon

[Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20

L.Ed.2d 776 (1968)] violation. Juror Powell was excluded for

cause after he stated that he “didn’t believe in capital

punishment.” However, the record shows that defense

counsel’s objection was not to the excusal of the juror for

A-36

cause on these grounds, but to the form of the prosecutor’s

question. Hence, this issue was not properly preserved at

trial, and appellate counsel was not ineffective for failing to

raise it on direct appeal. State v. Barber.

Appellant also alleges is his petition for writ of habeas

corpus that this Court failed to consider an issue properly

raised by him in his direct appeal in Jackson I, to wit, that

the trial court erred in overruling Jackson’s trial counsel’s

objection to the prosecutor’s statements that unless strong

mitigating circumstances were demonstrated, the jury must

return death verdicts.

[4] Our capital sentencing statute, section 921.141,

Florida Statutes (1983), requires this Court to review the

entire record in each capital case to determine if the judge-

ment of conviction and sentence was proper. The absence of

discussion in our written opinion in this case is not an

indication that we did not carefully review the entire record

and each argument made by appellate counsel in the direct

appeal. We did not abrogate our duty in this case; therefore,

we see-no reason to disturb appellant’s conviction and sen-

tence on this basis.

[5] Finally, in his petition for habeas corpus, as well as in

a separately filed petition for issuance of the Court’s writ of

extraordinary relief, appellant requests two separate judi-

cial determinations as to his competency. First, he requests

that a hearing be held to determine whether he is competent

to be executed. He argues that this judicial determination

should be made in addition to and aside from that deter-

mination made under section 922.07, Florida Statutes

(1983), by the governor’s commission of psychiatrists. This

issue has been adversely decided against appellant in our

decision in Goode v. Wainwright, 448 So.2d 999 (Fla.1984),

and most recently in Ford v. Wainwright, 451 So.2d 471

(Fla. 1984).

A-37

[6,7] Second, appellant requests a judicial determination

of his competency to understand the nature of and assist his

counsel in post-conviction proceedings. Appellant relies on

section 916.11 and 916.12, Florida Statutes ((1983), and

Rule 3.210, Florida Rules of Criminal Procedure to support

his argument. This reliance is misplaced, however, because

the statutes and the rule both address the issue of a judicial

determination of competency related to criminal trial

proceedings. These do not apply to a 3.850 motion because

the designation of the criminal procedure rule is a misnomer

in that the proceeding is civil in nature, rather than

criminal, and is likened to a combination of the common-law

writ of habeas corpus and a motion for writ of error coram

nobis. Dykes v. State, 162 So.2d 675 (Fla. 1st DCA 1964).

Therefore, we hold that appellant is not entitled to a judicial

determination of his competency to assist counsel either in

preparing a 3.850 motion or a petition for writ of habeas

corpus.

Accordingly, the denial of appellant’s second 3.850 motion

is hereby affirmed. His petition for extraordinary relief, his

petition for writ of habeas corpus, and his application for

stay of execution are also hereby denied.

It is so ordered.

ALDERMAN, C.J., and BOYD, MCDONALD, EHRLICH

and SHAW, JJ., concur.

OVERTON, J., concurs specially with an opinion.

OVERTON, Justice, specially concurring.

Competency of a defendant to stand trial and competency of

a defendant to aid his counsel in an appeal are not the same.

In the first instance, a defendant has to be able to advise

counsel of facts and circumstances to aid in his defense. In

the second instance, the record has been made and counsel

must make the legal decision of what issues should be

A-38

Dente i 4

appealed. Similarly, when post-conviction relief is sought,

the competency of the defendant is significant only when

there are factual matters in issue that must be determined.

In my view, before a defendant may require a trial court to

hold a hearing on his competency to aid counsel in a post-

conviction relief proceeding, the defendant must show that

there are specific factual matters that must be heard. That

circumstance has not been established in this record and no

prejudice has been specifically demonstrated by this

defendant.

A-39

Carl JACKSON, Petitioner,

Vv.

Richard L. DUGGER, etc., et al.,

Respondent.

No. 71960

Supreme Court of Florida

June 16, 1988.

Rehearing Denied September 19, 1988.

Prisoner incarcerated under death sentence petitioned for

writ of habeas corpus. The Supreme Court held that sen-

tencing error in instruction limiting jury to consideration of

statutorily enumerated mitigating circumstances was

harmless.

Petition denied.

Kogan, J., dissented and filed opinion in which Barkett,

J., concurred.

Larry G. Turner, Robert S. Griscti and Bill Salmon,

Gainesville, for petitioner.

Robert A. Butterworth, Atty. Gen., and Mark C. Menser,

Asst. Atty. Gen., Tallahassee, for respondents.

PER CURIAM.

A-40

‘cae essai aiaaadlmllll

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the es < “vba

AM fa:

— Clate

This is a petition for writ of habeas corpus in which

petitioner, Carl Jackson, seeks to set aside his death sen-

tence under the rationale of Hitchcock v. Dugger, 481 U.S.

393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). We have juris-

diction. Art. V, §§ 3(bX 1)&(9), Fla. Const.

{1] In Hitchcock the United States Supreme Court found

reversible error where the jury was instructed to consider

only statutorily enumerated mitigating circumstances and

where the trial judge did not consider nonstatutory mitigat-

ing circumstances. Jackson is not barred from raising this

claim since Hitchcock represented a significant change in

the law which defeats the suggestion of procedural default.

Thompson v. Dugger, 515 So.2d 173 (Fla.1987), cert. denied,

__U.S.__, 108 S.Ct. 1224, 99 L.Ed.2d 424 (1988); Downs v.

Dugger, 514 So.2d 1069 (Fla. 1987).

Jackson was convicted of two counts of first-degree mur-

der and sentenced to death. The judgement and sentence

were affirmed in Jackson v. State, 359 So.2d 1190 (Fla.1978),

cert. denied, 439 U.S. 1102, 99 S.Ct. 881, 59 L.Ed.2d 63

(1979). Subsequent motions for postconviction relief were

also denied. Jackson v. State, 437 So.2d 147 (Fla.1983), cert.

denied, 465 U.S. 1013, 104 S.Ct. 1016, 79 L.Ed.2d 246

(1984); Jackson v. State, 452 So.2d 533 (Fla.1984).

In the course of robbing a Jr. Food Store, Jackson shot and

killed the store clerk, Ann Patterson Butler. He then kid-

napped Mary Frances Price who was sitting in a car outside

the store. Jackson drove Mrs. Price to a nearby cemetery

where he shot her in the head and abandoned the

automobile.

At the trial the judge read the standard jury instruction

of that time which was found faulty twelve years later in

Hitchcock. The jury recommended death by an eleven-to-one

vote. In imposing the death sentence, the trial judge found

five aggravating circumstances (reduced by this Court to

A-41

four because of doubling) and found no mitigating cir-

cumstances. It is unclear whether the trial judge knew that

he could consider nonstatutory mitigating evidence. On the

one hand, he did not limit Jackson in the introduction of

nonstatutory mitigating evidence. On the other, he did give

the improper jury instruction, and his sentencing order

made reference to insufficient mitigating circumstances “as

enumerated” in section 921.141(6), Florida Statutes.

[2] In any event, because of the erroneous jury instruction,

we are compelled to conclude that a sentencing error oc-

curred under the rationale of Hitchcock. Therefore, the only

remaining question is whether such error can be considered

harmless. Hitchcock; Booker v. Dugger, 520 So.2d 246

(Fla. 1988); Delap v. Dugger, 513 So.2d 659 (Fla. 1987).

The soustatutory mitigating evidence introduced at the

trial may be summarized as follows. A psychologist who had

interviewed Jackson three times testified that Jackson told

him of serving three tours of duty in Vietnam before receiv-

ing a general discharge. Jackson related that as a result of

his Army service, he no longer approved of killing. The

psychologist was impressed with Jackson’s religious

philosophy. He expressed no opinion concerning Jackson’s

mental condition. A woman with whom Jackson was living

said that he was good to her and her children. She had not

known him to be violent except on one occasion during an

encounter with her husband. Jackson’s niece also testified

that he was not violent. She said that he was a religious

person, although he did not belong to a church. A minister

who had known Jackson most of his life said that they often

talked about religion. Jackson had told him that he felt that

the world was lacking in love. He said that Jackson had a

good reputation.

Viewed in its best light, the nonstatutory mitigating

evidence was minimal. We are convinced beyond a

A-42

reasonable doubt that even with the proper jury instruction,

the jury would not have made a recommendation of life

imprisonment for this double murder. There was simply

insufficient mitigating evidence to offset the aggravating

circumstances upon which the jury could have reasonably

predicated such a recommendation. We are also convinced

beyond a reasonable doubt that, regardless of a jury recom-

mendation of life imprisonment, the trial judge would have

sentenced Jackson to death even if he was fully aware that

nonstatutory mitigating evidence was relevant. Moreover,

on this evidence, an override would have been consistent

with the rationale of Tedder v. State, 322 So.2d 908

(Fla.1975). See Hall v. State, 531 So.2d 76 (Fla.1988), in

which this Court recently held a Hitchcock error to be

harmless because of minimal nonstatutory mitigating

evidence where only one killing was involved.

We deny the petition for writ of habeas corpus.

It is so ordered.

McDONALD, C.J., and OVERTON, EHRLICH, SHAW

and GRIMES, JJ., concur.

KOGAN, J., dissents with an opinion, in which

BARKETT, J., concurs.

KOGAN, Justice, dissenting.

I dissent from the majority opinion. I cannot say beyond

a reasonable doubt that the jury would net have recom-

mended a life sentence had they been instructed by the trial

judge that they could consider as mitigating circumstances

the defendant’s three tours of combat duty in Vietnam. If

having been so instructed they returned a life recommenda-

tion, the trial judge, under Tedder v. State, 322 So.2d 908

(Fla.1975), would not have been able to override this recom-

mendation, since the jury would have had a reasonable basis

for their action.

A-43

I would, therefore, grant the petition for a writ of habeas

corpus, vacate the sentence of death and remand this case

to the trial court for a new sentencing proceeding before a

new jury.

BARKETT, J., concurs.

A-44

elt ae

aaa st ho oN eel Plinth a cg one

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 90-3237

CARL JACKSON,

Petitioner-Appellant,

versus

RICHARD L. DUGGER, Secretary,

Florida Department of Corrections,

Respondent-Appellee.

On Appeal from the

United States District Court for the

Northern District of Florida

ON PETITION(S) FOR REHEARING AND SUGGES-

TION(S) OF REHEARING EN BANC

(Opinion April 29, 1991, 11th Cir., 1991,__ F.2d__).

Before: JOHNSON, EDMONDSON and COX, Circuit

Judges.

PER CURIAM:

(X) The Petition(s) for Rehearing are DENIED and no mem-

ber of this panel nor other Judge in regular active service

on the Court having requested that the Court be polled on

rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5), the Suggestion(s) of

Rehearing En Banc are DENIED.

A-45

() The Petition(s) for Rehearing are DENIED and the Court

having been polled at the request of one of the members of

the Court and a majority of the Circuit Judges who are in

regular active service not having voted in favor of it (Rule

35, Federal Rules of Appellate Procedure; Eleventh Circuit

Rule 35-5), the Suggestion(s) of Rehearing En Banc are also

DENIED.

() Amember of the Court in active service having requested

a poll on the reconsideration of this cause en banc, and a

majority of the judges in active service not having voted in

favor of it, Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

EDMOND R. COX

UNITED STATES CIRCUIT JUDGE

A-46

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

CARL JACKSON,

Petitioner,

VS. Case Number 90-50069

RICHARD L. DUGGER,

Respondent.

RULING OF THE COURT AT HEARING

Hon. Roger Vinson

U.S. District Judge

Pensacola, Florida

March 23, 1990

APPEARANCES:

Mr. Mark C. Menser

Mr. Richard Martell

Assistant Attorney Generals

Tallahassee, Florida

Appearing on behalf of the respondent.

See ae LL at Dail TRE i a EA ali

'

Mr. Billy H. Nolas

Ms. Gail Anderson

Attorneys at Law

Office of the Capital

Collateral Representative

Tallahassee, Florida

Appearing on behalf of the petitioner.

A-47

(12:47 P.M. Open court.)

THE COURT: Counsel are here, and as I’ve indicated, it’s

my intent to go ahead and rule on the motion now in order

that either side can promptly pursue the route of appeal to

the Eleventh Circuit, and the Eleventh Circuit is currently

standing by to facilitate some prompt assignments of judges

and consideration of the matter.

After thorough analysis of everything that’s been

presented, both in writing and here orally this morning, it’s

my conclusion that I’m going to deny the petition for the

writ. Let me say that this is a very close issue; and as I’ve

previously announced to you, I think the predominant issue

and the one that I think is most meritorious is the harmless

error claim under Hitchcock. My concern is that the harm-

less error rule or Hitchcock error is somewhat unresolved by

the Eleventh Circuit. The most recent opinion from the

Eleventh Circuit in Tafero vs Dugger, which was in the

middle of 1989, which is the most recent one that I’ve found,

points out in footnote page five at page 252 of 873 F. 2d, “We

are aware of conflicting viewpoints in this circuit concerning

the application of a harmless Hitchcock error standard.”

There are two situations that are summarized in the

Eleventh Circuit opinion in Jones, which arose out of this

court, and it essentially says that harmless error can be

found when there is no mitigating evidence presented, or if

the nonstatutory mitigating evidence presented was so in-

significant that it would not have altered the jury’s decision.

And the standard that seems to have been adopted in Jones

is whether the reviewer, or in this case the Eleventh Circuit

is, in its words, confident, and I presume inherent in that is

confident beyond a reasonable doubt, that the outcome

would have been different. And as I mentioned during the

course of the arguments today, I don’t think harmless error

analysis, specifically federal harmless error analysis in the

A-48

SENET A cats toed

Hitchcock claim, is something that you can make a check

list on and say, “This evidence is here and that evidence is

there.” You have to consider the totality of the record and

the circumstances. The Jones case itself is one in which I

found there was not harmless error.

But I am inclined to agree with the seven justices, excuse

me, five of the seven justices, of the Supreme Court of

Florida who found that in this case, Mr. Jackson’s case, that

it was harmless error and they found beyond a reasonable

doubt that the outcome would not have been different had

all of this mitigating evidence been directly allowed, and

under the instructions presented to the jury for its con-

sideration and to the judge for his consideration. And my

feeling upon analysis of the entire record is the same as

those five judges of the Supreme Court of Florida who found

this was harmless error.

The questions that is presented is whether that analysis

is sufficient within the context of the Eleventh Circuit.

Frankly, ’'m unable to say this it is not in light of what

obviously is conflicting viewpoints, to use the term the

Eleventh Circuit has, within the circuit, upon the proper

standard of review. If in fact the standard of review is

traditional harmless error analysis that you view it all and

find no reasonable jurors could find beyond a reasonable

doubt the outcome would have been different, that would be

harmless error, in so many words what is required under

the rules of procedure. So that’s my position in this case,

that I don’t find that the Eleventh Circuit standard is

sufficiently well defined that I can disregard the findings of

the Supreme Court of Florida and its analysis and my own

overall impression of this case that the result would not have

been different if all this evidence had been properly con-

sidered by the jury, as Hitchcock requires, as mitigating

evidence.

A-49

So consequently in the interest of comity, I am agreeing

with the Supreme Court of Florida, and recognizing too that

this an issue that ultimately will have to be decided by the

Eleventh Circuit, and perhaps this is the time and the case

for them to make that decision, if they have not already done

so by the time this case reaches that decision-making

process. I certainly agree that this is a case that warrants

consideration by the Eleventh Circuit and probable cause is

certified. But the stay is denied. I think you do have suffi-

cient time to at least present the case to the Eleventh

Circuit, and if they feel a stay is warranted they'll have time

to at least consider that and issue a stay if they feel it’s

needed.

So to summarize, I will follow up with a written order but

I think in the interest of time, the remaining claims I do not

find any of them, as I tentatively indicated to you, I do not

find any of them to be meritorious enough to warrant is-

suance of the writ or a stay. I personally feel that the real

issue in this case is the harmless error analysis of Hitchcock

and I think it’s a very close question, no doubt about that,

and I think different minds can reach differing conclusions

about it, as evidenced by the Supreme Court of Florida,

which was five to two decision, and as evidenced by various

opinions from district court judges here in the State of

Florida, including myself, on the proper way to conduct a

harmless error analysis in these types of cases.

I think that concludes everything that needs to be stated

on the record. Unless there’s something else. Anything from

petitioner?

MR. NOLAS: Yes, Your Honor, in terms of expediting the

case, we have a standard order granting certificate of prob-

able cause. I’m not suggesting Your Honor needs to enter that.

THE COURT: I have it in front of me.

A-50

MR. NOLAS: If you could just look it over.

THE COURT: rm in the middle of signing it right now.

MR. NOLAS: Thank you, Your Honor. The only other

question I have for Your Honor is does Your Honor have any

anticipation when you would be entering a formal order on

the merits?

THE COURT: My experience has been these things al-

ways take longer than you think you should because there

are so many cases and the law obviously has developed and

is continuing to develop almost daily, and there are so many

claims. Some of them may not necessarily warrant a great

deal of discussion, but some of them probably need more

than just a passing reference, so I would not anticipate that

it would be forthcoming within the next two weeks because

next week is a relatively full week for me and I don’t think

I'll have time to spend a great deal of effort working on this.

I don’t think it’s necessary for appellate review for me to

have that formal order on the record, though, since ['m

announcing essentially my conclusion on it here.

MR. NOLAS: Not to interrupt you, Judge, that does pose

a problem, and that is in order to send the case to the

Eleventh Circuit we need to file notice of appeal. Having

filed notice of appeal Your Honor would be divested of

jurisdiction in the case so therefore anything after it would

be a nullity. The Catch-22 Im in is, I don’t know if it would

be appropris.te for us to stipulate to Your Honor’s on-the-

record ruling as an order, but the problem is I don’t know

how to get the case to the Eleventh Circuit.

THE COURT: Let me assist you then. In lieu of a written

order let me just announce my findings on the record here,

which are essentially these, that on the harmless error issue

I find it’s a very close question; that in light of all of the

precedent that I’ve cited, I think, previously, and it’s not

A-51

necessary to go back through the cases, but all the cases that

have considered Hitchcock harmless error, I am unable to

say that this is a case which is not harmless error, and in

comity with the Supreme Court of Florida and its conclusion

it-is harmless error and my own personal feeling after

looking at all the evidence and going back and rereading

everything that is relevant to that, that it is harmless error,

I do not find anything in the Eleventh Circuit that would

require me as a matter of law or federal harmless error

review standards to overturn that. So my finding is that it’s

harmless error and I think that’s sv ‘ficient to take that issue

to the Eleventh Circuit.

As to the remaining claim, without going into a great deal

of detail because there are a number of them, but I’ve

reviewed them and I don’t find any of them are sufficiently

meritorious to warrant issuance of the writ or stay. That’s

on the record. Mr. Suda can transcribe that this afternoon

for you and that can be forwarded to the Eleventh Circuit.

MR. NOLAS: Correct. Then with that, Your Honor, we

would have Your Honor’s permission to go ahead and file

notice of appeal?

THE COURT: Absolutely. I want you to do that That’s

behind why we've expedited the hearing today and every-

thing else.

MR. NOLAS: Thank you, Your Honor.

THE COURT: Anything else from the state?

MR. MENSER: No. Your Honor.

THE COURT: In that case we’re adjourned.

(At 12:58 PM the hearing was adjourned.)

A-52