Opposition — Stewart v. Florida

CASE NO. 82-6187

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

ROY ALLEN STEWART,

Petitioner,

vs.

THE STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF FLORIDA

TABLE OF CITATIONS.....

By sss STATEMENT OF THE CASE..

SUMMARY OF ARGUMENT... .

CONCLUSION. ............

CERTIFICATE OF SERVICE.

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8 v. Maroney,

399 U.S. 42 at 53 CATO k's heb cease bese enemas

Edd . Oklahoma

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ern Hig

h So. 94 997 Ob. SOGB ous acters thos ek

Lockett v. Ohio,

438 U.S. S06 (197TB).. ners vecesaevaccccnevecsseies

Rose y.

TAMER 4B CURING. aye den’ Sede l sak oor eee

Stewart v. State,

62"°Go,24 O62. (Pla. 1962). .cccsccccccscasecnvnces

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Unites Fe 2d 881 wii Cir. 1978)

r. cert den.,

435 U.S. 955 BOPME ic uae ois c ec Ca cous cei akatnis

Section 921.141(6)(b), (e) and (£)....-. eee e ween enees

Rule 3.850, Florida Rules of Criminal Procedure.......

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STATEMENT OF THE CASE

The Defendant, Roy Allen Stewart was indicted, con-

victed and sentenced to death arising from his brutal rape,

robbery and murder of an slderly women in her home in Miami,

Florida. See, Stewart v. State, 420 So.2d 862 (Fla. 1982).

On direct review to the Florida Supreme Court, the Defendant's

convictions and sentence of death were affirmed. Id.

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Relative to the present petition, prior to the Defendant's

trial, the Defendant was examine by three (3) court appointed

psychiatrists Id. at 864. Nevertheless, defense counsel

- persisted in asking the Florida Trial Court for the appoint-

ment of yet other psychiatrist to examine the Defendant for

purposes of presenting evidence of statutory mitigation under

Section 921.141(6)(b), (e) and (f), which relate to the capa-

city of the Defendant to appreciate the criminality of his

conduct and whether or not the Defendant was under emotional

“duress” or “mental or emotional disturbance". The three (3)

court appointed psychiatrists found the Defendant competent to

stand trial and able to assist in his defense. One of the

psychiatrists, Jacobson, specifically found that the Defendant

did appreciate the criminality of his conduct within the

meaning of Section 921.141(6)(b) or (£). See Petitioner's

Appendix at pages 25-42. All of the medical reports «hich

_ Were rendered well before the trial, contained extensive —

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The State's trial court denied the Defendant's Motion for

a Continuance finding that further psychological examinations

were unnecessary and finding specifically that the Defendant

: had two (2) trial attorneys preparing the present case for

‘ more than a month prior to trial. 420 So.2d at 864.

Finally, because counsel vigorously argued that he had

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been denied the effective «sistance of counsel because of

the trial court denying a “otion for a Continuance at the time

of the sentencing phase, the Supreme Court of Florida consider-

ed and rejected such a claim on direct appeal. Generally, in

Florida ineffectiveness assistance of counsel claims are

addressed through a Motion for Post Conviction Relief filed in

, the trial court. See, Knight v. State, 394 So.2d 997 (Fla. 1981).

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The Defendant has failed to present a substantial

” federal question arising from the opinion of the Supreme

aie Court of Florida in applying the death penalty to the Defen-

dant.

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ARGUMENT

The Defendant makes three (3) arguments urging this

Court to exercise its discretionary jurisdiction herein.

First of all, the Defendant contends that the denial of more

court appointed psychiatrists to examine the Defendant again

denied counsel the right to investigate and prosent relevant

mitigating circumstances under Lockett v. Ohio, 438 U.S. 586

(1978). Thus, the Defendant contends that the death penalty

herein was arbitrary applied under Eddings v. Oklahoma,

___U.S.___, 102 S.Ct. 869 (1982). Secondly, the Defendant

makes a similar argument with regard to the denial of his

counsel's request for a ccatinuance. Finally, the Defendant

asserts that the Supreme Court of Florida in applying state

rules and procedures tothe Defendant's claim of ineffective

assistance of counsel constitutes an arbitrary and unreasonable

departure from normal state procedures and thus « denial of

due process.

First of all, the Defendant's premise for asserting juris-

diction herein is erroneous. The Defendant was examined by

three (3) court appointed psychiatriss wo certainly could have

been asked any questions by the defense counsel at any time

prior to trial or during trial as to the evidence of the

Defendant's duress or emotional disturbance in the present case.

420 $0.24 at 864, In fact, one of the psychiatrists aid consider

and reject any evidence that the Defendant did not appreciate

Lae criainelity of his conduct a 8 oe serine etr-

The triai court's denial of the Defendant's Motion for

a Continuance is also sounded. A summary allegation that

counsel had insufficient time to prepare for trial does not

raise a substantial federal question. See, Chambers v.

Maroney, 399 U.S. 42, at 53-54 (1970); United States v. Gray,

565 F.2d 881, at 887 (Sth Cir. 1978), cert. den., 435 U.S.

955 (1978) (time spent in preparation in and of itself is not

a showing of ineffective counsel). Further, as with the

Defendant's central contention above regarding the necessity

of additional psychiatric examinations, the additional evidence

sought by the Defendant herein was merely cumulative to that

already before the trial court and jury.

In the Defendant's final contention, he complains that the

Supreme Court of Florida considered his ineffective assistance

of counsel claim on direct review contrary to its normal pro-

cedure of requiring a separate Rule 3.850 Florida Rules of

Criminal Procedure proceeding in the trial court. See, Knight

v. State, 394 So.2d 997 (Fla. 1981). That the Florida Supreme

Court choose to address the Defendant's complaint that he was

denied effective assistance of counsel on direct review rather

then under the Florida's separate procedure under Rule 3.850,

is plainly a question of State law and procedure end therefore

does not present a substantial federal constitutional question.

See, e.g., Rose v. Hodges, 423 U.S. 19 (1975).

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CONCLUSION i

a WHEREFORE, on the foregoing, the Respondent, THE STATE

OF FLORIDA, prays that this Honorable Cour* will deny the

present Petition for a Writ of Certiorari.

RESPECTFULLY SUBMITTED, on this day of March, 1983,

at Miami, Dade County, Florida.

JIM SMITH

Attorney General

ee

. FOX, re

Assistant Attorney General

: Suite 820

401 N.W. 2nd Avenue ;

i Miami, Florida 33128

ae (305) 377-5441 a