Opposition Brief — Dugger v. Johnson

II

(PETITIONER'S QUESTION Ib.) WHETHER APPELLATE COUNSEL

WHO HAS RAISED ELEVEN NON-FRIVOLOUS APPELLATE ISSUES MAY BE

RENDERED INEFFECTIVE FOR FAILURE TO RAISE AN ADDITIONAL

ISSUE WITHOUT A FACTUAL DETERMINATION THAT THIS FAILURE WAS

OTHER THAN A CONSIDERED DECISION ON THE PART OF

APPELLATE COUNSEL.

Petitioner's position is that “[a]n evidentiary hearing

should have been held as suggested by your petitioner in the

motion for rehearing filed with the Florida Supreme Court to

establish the factual reasons appellate counsel failed to brief

the sequestration issue." Petition for Writ of Certiorari, p.

16. In the state's "Response to Petition for Extraordinary

Relief and Writ of Habeas Corpus" filed in the Florida Supreme

Court, App. 3., no request was made for an evidentiary hearing --

Petitioner believed and argued that the Florida Supreme Court

should reject the ineffective assistance claims on the record,

because the sequestration issue was only "a colorable issue" at

the time of appeal. Id., p.6. It was ety when respondent lost

before the Florida Supreme Court that a request for an

evidentiary hearing appeared in a Motion for Rehearing, which was

denied without comment. Such a new matter cannot be raised for

the first time in Florida in a motion for rehearing, Rule

9.330(a), Fla. Rules of App. Pro., it was neither properly before

nor considered by the Florida Supreme Court, and, consequently,

the issue is not a proper one for this Court's "review."

Hargrave v. Wainwright, 804 F.2d 1182 (llth Cir. 1986).

In any event, no factual determination is required in this

case as appellate counsel was ineffective whether the omission was an

inadvertent one or a purported tactical decision. Petitioner

must concede that counsel would have been ineffective if failure to

raise this issue was because of inadvertent omission.

Petitioner's remaining argument is that counsel may have made a

"reasonable" tactical decision in not raising this issue because

the Florida Supreme Court may have distinguished Raines on the

facts. Petitioner would have this Court hold that it is

reasonable for counsel to assume or speculate away a meritorious

claim based upon nothing more than a future possibility. Just as

counsel cannot be found ineffective for failure to anticipate a

change in the law, e.g., Reed v. Ross, U.S. _—_, 104 Sw Ct.

2901, 2908-909 (1984) (citing cases), counsel must be found

ineffective for gambling or speculating on a possible future

ruling of the court. The law does not require clairvoyance of

appellate counsel. The law requires that appellate counsel

zealously represent appellants and that they put forth issues of

merit on behalf of their clients. E.g., Alvord. Raines clearly

and unequivocally states, and did at the time of appeal, that it

is reversible Florida error to permit Florida jurors to separate after

deliberation has begun. At the time of the trial (1981) and

appeal (1983) no reason existed for counsel to believe this would

not apply to Mr. Johnson. Failure to raise this issue can in no

way be considered a “reasonable" tactical decision. Petitioner's

guesses as to possible reasons why appellate counsel failed to

raise this issue are unnecessary and irrelevant speculation.

IIl.

(PETITIONER'S QUESTION II.) WHETHER THE PREJUDICE PRONG

OF STRICKLAND v. WASHINGTON IS SATISFIED WHERE

APPELLATE COUNSEL FAILS TO RAISE A REVERSIBLE ISSUE THAT

DOES NOT AFFECT THE TRUTH FINDING PROCESS OR A FUNDAMENTAL

CONSTITUTIONAL QUESTION.

Petitioner's premise is flawed. The Florida Supreme Court

made a finding, based on adequate and independent state law, that

the issue sub judice does affect the truth finding process, in

fact it goes to the heart of the reliability of jury

deliberation. See Claim IV, infra. Separation of the jury

during deliberation so taints the entire process that the Court

was not confident that the result was fair. Id. The Court

concluded that the entire trial was tainted.

The Florida Supreme Court has determined that the trial

court committed reversible error under Florida law. A new appeal

is available whenever appellate counsel's deficiencies

“compromis(e) the appellate process to such a degree as to

undermine confidence in the fairness and correctness of the

outcome. . .." Harris, supra. See also, Alvord, supra. The

Supreme Court of the state of Florida has determined that the

outcome of the appeal would have been different had this issue

been briefed. Clearly, the Court was not convinced that the

trial and appeal concluded in fair and correct results.

IV

THE DECISION OF THE FLORIDA SUPREME COURT RESTS

ON AN ADEQUATE AND INDEPENDENT STATE GROUND

There is no federal constitutional right yet which requires

that a jury be sequestered once deliberation begins in a capital

case. However, the Florida Supreme Court has determined that

this Florida rule goes to the heart of the truth finding

process, contrary to Petitioner's assertion, and that its

violation so poisons the process that the conviction cannot

stand. The Florida Supreme Court ruling on this issue is based

on state case and statutory law which constitute independent and

adequate state grounds, thereby denying this Court jurisdiction

to review the decision. Klinger v. Missouri, 13 Wall 257, 263

(1871); Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935);

zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 566

(1977); Ridgway v. Ridgway, 454 U.S. 46, 54 (1981); Michigan v.

Long, 463 U.S. 1032 (1983).

"It is, of course, ‘incumbent upon this Court ... to

ascertain for itself . .. whether the asserted non-federal

ground independently and adequately supports the judgment." “Long

at 1039, citing Abie State Bank v. Bryan, 282 U.S. 765, 773

(1931):

[W)hen . . . a state court decision fairly

appears to rest primarily on federal law, or

to be interwoven with federal law, and when

the adequacy and independence of any possible

state law ground is not clear from the face

of the opinion, we will accept as the most

reasonable explanation that the state court

decided the case the way it did because it

believed that federal law required it to do

so. If a state court chooses merely to rely

on federal precedents as it would on the

precedents of other jurisdictions, then it

need only make clear by a plain statement in

its judgment or opinion that the federal

cases are being used only for the purpose of

guidance, and do not themselves compel the

result that the court has reached. ... If

the state court decision indicates clearly

and expressly that it is alternatively based

on bona fide separate, adequate, and

independent grounds, we, of course, will not

undertake to review the decision,

Long at 1040-41.

In Johnson, the Florida Supreme Court does not refer to or

in any way specifically rely on federal constitutional provisions

or federal case law. The Court's analysis focused entirely upon

three state court decisions: Livingston v. State, 458 So. 2d 235

(Fla. 1984); Raines v. State, 65 So. 2d 588 (Fla. 1953), and

Engle v. State, 438 So. 2d 803 (1983), cert. denied, 465 U.S.

1074 (1984). The Florida Supreme Court distinguished Engle from

this case because in Engle the parties stipulated to the

separation of the jurors after deliberation had begun. In this

case counsel vigorously objected to the separation. The Florida

Supreme Court concluded:

Raines embodied the law at the time of

Johnson's trial and appeal. Under Raines

reversible error occurred during Johnson's

trial. We find, therefore, that appellate

counsel provided ineffective assistance

by not bringing this issue to our attention.

After determining that appellate counsel failed to raise this

issue, requiring reversal of the conviction, the Court determined

that counsel was ineffective for this gross lack of

representation.

In Raines, the court allowed the jurors to separate and go

to their homes for the night after the case had been submitted to

the jury for deliberations and the jury had deliberated for one

and one-half hours. The jury reconvened in the morning,

completed deliberations, and rendered a verdict convicting Raines

and acquitting his co-defendant. On direct appeal, the Raines

~J

court ruled that it was prejudicial error to permit the jurors to

separate for the night once deliberations had begun.

Raines and thus this case is based on an interpretation of

sections 919.01(1) and (2), Florida Statutes (1953), provisions

which are now contained in Fla. R. Crim. P. 3.370 (1975). Raines

indicates clearly and expressly that the Court's finding of error

is based on bona fide separate, adequate, and independent state

grounds:

Whether or not separation of the jury for the

night without instruction as to communicating

with others and without the protection of

bailiff was error, turns on the

interpretation of the governing statutes

cited in the forepart of the opinion,

Raines at 559. The Court concluded that this error was of such a

magnitude that it constituted fundamental, reversible error,

under Florida law:

There is no showing in the way of evidence

that defendant's rights were prejudiced but

trials should not be conducted in a way that

defendant has good reason for the belief that

he was deprived of fundamental rights. The

opportunity was open for tampering with the

jury and the temptation to do so was such

that we are not convinced that the

appellant's trial was conducted with the

degree of fairness and security that the bill

of rights contemplates. A fifteen hour

absence under no restraint whatever leaves

too much room to question the bona fides of

everything that took place during that

time. . .. It imposes too great a burden on

defendant to produce evidence of prejudice to

his rights under such circumstances. We

think this error calls for reversal,

Raines at 559-60 (emphasis added).

The Raines decision and the applicable Florida Statutes

Clearly defined the state of the law in Florida in 1981 - 1982,

when the trial and appeal in the instant case took place. In

addition to Florida, by 1981, "courts of a majority of states

have held, either by statute, court rule, or the common law, that

such a (jury) separation, especially in capital cases and where

the defendant objects is prejudicial error. . .." Livingston at

238. See e.g., Kimoktoak v. State, 578 P.2d 594 (Alaska 1978);

Hughes v. State, 437 A.2d 559 (Del. 1981); Mason v. State, 239

Ga. 538, 238 S.E.2d 79 (1977); People v. Ritzert, 17 Ill. App.3d

791, 308 N.E.2d 636 (1974); Bales v. State, 418 N.E.2D 215 (Ind.

1981); Walker v. State, 410 N.E.2d 1190 (Ind. 1980); White v.

Maxwell, 174 Ohio St. 186, 187 N.E.2d 878 (1963); Gibson v.

State, 512 P.2d 1399 (Okla. Crim. App. 1973); Gonzalez v. State,

593 S.W. 2d 288 (Tenn. 1980); O'Neil v. State, 642 S.W. 2d 259

(Tex. Crim. App. 1982); State v. Smalls, 99 Wash.2d 755, 665 P.2d

384 (1983). Livingston, 458 So. 2d at 238 (citing cases).

Usually, when a state court decision appears to be

interwoven or to rest primarily on federal law and the decision

does not clearly and expressly state that it rests on alternate

and independent state grounds, this Court will assume

jurisdiction as "the most reasonable explanation that the state

court decided the case the way it did because it believed that

federal law required it to do so." Long at 1040-41. [In this

case, however, independent and adequate state grounds controlled

the Florida Supreme Court's decision. Raines did not require a

showing of prejudice as that Court concluded that this error is

of such magnitude that it undermines the truth-finding function

of a trial. To accept jurisdiction of this issue would require

this Court to review and rule upon well-established Florida state

law based upon interpretation of state statutes, one of the evils

this Court sought to avoid in Long. Id. at 3475-76.

The Supreme Court of Florida has determined that failure to

sequester the jury in a capital case once deliberations have

begun is an error of great magnitude.

The opportunity was open for tampering with the

jury and the temptation to do so was such that we

are not convinced that the appellant's trial was

conducted with that degree of fairness and security

that the bill of rights contemplates. .. .It

imposes too great a burden on defendant to produce

evidence of prejudice to his rights under such

circumstances. We think this error calls for

reversal.

Raines at 560 (emphasis added). Actual prejudice under these

circumstances is “too great a burden". The Florida Supreme Court

has determined that where the Raines situation arises, the

fairness and security of the entire Florida proceeding is called

into question and the underlying conviction cannot stand, under

Florida law.

CONCLUSION

Because none of the requirements of Rule 17 have been met,

the petition for writ of certiorari should be denied.

Respectfully submitted,

LARRY HELM SPALDING

Capital Collateral Representative

*MARK EVAN OLIVE

Litigation Coordinator

OFFICE OF THE CAPITAL COLLATERAL

REPRESENTATIVE

225 West Jefferson Street

Tallahassee, FL 32301

(904) 487-43

ey a for Respondent

*Counsel of Record

10

Case No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER, TERM 1986

LOUIE L. WAINWRIGHT, Secretary, Florida

Department of Corrections,

Petitioner,

Vv.

PAUL BEASLEY JOHNSON,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

I,

RESPONDENT'S BRIEF IN OPPOSITION

CERTIFICATE OF SERVICE

MARK EVAN OLIVE, a member of the bar of thi

s Court, hereby

certify that on this HOY, aay of March 1987, a photocopy of

the Motion In Opposition To Petition For Writ of Certiorari

this case was mailed,

first class postage prepaid,

in

to Robert J.

Krauss, Assistant Attorney General, Office of the Attorney

General,

Tampa,

required to be served have bee

FL

1313 Tampa Street, Suite 804,

33602, all counsel for respondent,

Park Trammell Building,

and all parties

Litigation Coordinator

OFFICE OF CAPITAL COLLATERAL

REPRESENTATIVE

225 West Jefferson Str

Tallahassee, FL 32301

(904) 487-437

Counsel for Respondent

eet

APPENDIX 1

—

PAUL BEASLEy JOHNSON, Petitioner,

Vv.

LOUIE L,. WAINWRIGHT, Respondent.

([Decenber ll, 1986)

PER CURIAM.

Paul Johnson, & Plorida Prisoner under

Sentence of death, Petitions this Court for a

writ of habeas Corpus, We have jurisdic.

tion, Art. V, $$3(b) (1), (9), Pla.

We grant the writ and remand for a

Const.

new trial.

A jury convicted Johnson of,

things,

@mong other

three counts of first-degree murder

and recommended that he be

death.

Sentenced to

The trial court imposed three death

Sentences on Johnson, and we affirm his con-

. Johnson Vv. State,

1983), cert, denied, 465

U.s, 1051 (1984). The

governor Signed

ae

*]

Johnson's death Warrant in January 1986, and

Johnson subsequently filed the instant Ppeti-

tion,

Johnson raises two claims in this peti-

tion, First, he argues that this Court

the constitutionality Of "death qualifying*

juries in Lockhart y, McCree, docket no, 84-

1865 (argued Jan. 13, 1986), We have pre-

viously found this issue to be without

merit. Kennedy y. Wainwright, 483 So.2d 424

(Pla.), cert. denied, 107 S.Ct, 29] (1986),

Moreover, after Johnson filed this Petition,

the Supreme Court decided Lockhart adversely

to his position. 106 S.ct. 1758 (1986),

As his second Point, Johnson Claims that

he received ineffective assistance of appel-

late counsel. We granted the requested stay

SO that oral arugment could be Presented on

the second issue, After reviewing this

A-2

matter we conclude that relief is warranted.”

Several hours after the jury had begun

its deliberations on Johnson's guilt or inno-

cence, the trial court allowed the jury to

separate for the night. Johnson's trial

counsel objected to this separation and re-

quested that the jury be sequestered over-

night. The court denied both the objection

and the request. The following morning trial

counsel again objected to the procedure and

moved for a mistrial. The court denied the

motion. Appellate counsel did not raise this

separation of the jury as an issue on appeal.

In making the instant claim of ineffec~

tive assistance of appellate counsel Johnson

relies on Livingston v. State, 458 So.2d 235

(Fla. 1984), and Raines v. State, 65 So.2d

588 (Fla. 1953). In Livingston we held that

rr Johnson mentions five instances of

ineffectiveness. Except for the jury

sequestration issue, they are without merit.

1) 3Y 7

ne

"in a capital case, after the jury's deliber-

ations have begun, the jury must be seques-

tered until it reaches a verdict or is dis-

charged after being ultimately unable to do

so." 458 So.2d at 239, Livingston relied on

Raines, wherein this Court reversed for a new

trial when the jury had been allowed to

separate for fifteen hours after beginning to

deliberate, Even though we did not file

Livingston until a year after we affirmed

Johnson's convictions and sentences, Raines

embodied the law at the time of Johnson's

trial and appeal. Under Raines - reversible

error occurred during Johnson's trial. We

find, thercfore, that appellate counsel pro-

vided ineffective assistance by not bringing

this issue to our attention,

Relying on Engle v. State, 438 So.2d 803

(Pla. 1983), cert. denied, 465 U.S. 1074

(1984), the state argues that Johnson's

appellate counsel provided effective

oT mT vy

3

assistance because Raines is materially dis-

tinguishable from the instant case. In Engle

the trial court had instructed the jury not

to discuss the case and not to read, watch,

Or listen to any media reports on the trial;

no such admonishment had been made in

Raines, The key difference between Raines

and the instant case on one hand and Engle

on the other, however, is that in Engle the

Parties stipulated to the separation. Engle

does not make Johnson's appellate counsel's

Performance effective. Additionally, we did

not file our opinion in Engle until after we

had affirmed Johnson's convictions and sen-

tences,

If appellate counsel had brought the

jury separation issue to our attention on

appeal, a new trial would have been grant-

ed. Johnson seeks a new appeal in the ins-

tant petition and, in fact, has demonstrated

his counsel's ineffectiveness. In this

instance however, a new appeal would be

redundant because we acknowledge that re-

versible error Occurred at trial. Therefore,

we reverse Johnson's convictions, vacate his

sentences, and direct that he be retried,

It is so ordered.

MCDONALD, C.J., and ADKINS, BOYD, OVERTON,

EHRLICH, SHAW AND BARKETT, JJ., Concur

NOT FINAL UNTIL TIME EXPIRES TO FILE

REHEARING MOTION AND, IF FILED, DETERMINED.

r

b en nena

=...

Original Proceeding - Habeas Corpus

Larry Helm Spalding, Office of the Capital

Collateral Representative, Tallahassee,

Florida,

for Petitioner

Jim Smith, Attorney General and Robert J.

Krauss, Assistant Attorney General, Tampa,

Florida,

for Respondent

| " aie J

IN THE SUPREME COURT OF FLORIDA

PAUL B. JOHNSON,

ve

LOUIE L. WAINWRIGHT,

Department of Corrections,

of Florida,

Petitioner,

Respondent.

Secretary

State

Case No,

CAPITAL CASE

Execution is Imminent,

Scheduled for Tuesday,

February 18, 1986,

7:00 A.M.

PETITION FOR EXTRAORDINARY RELIEF AND A

WRIT OF HABEAS CORPUS AND A STAY OF EXECUTION

LARRY HELM SPALDING

Capital Collateral Representative

STEVEN H. MALONE

Assistant Capital Collateral

Representative

Univ. of So. Pla. - Bayboro

140 7th Ave. So., RM COQ-216

St. Petersburg, FL 33701

(813) 893-9186

INTRODUCTION

This petition raises two claims. The first is that the

process of capital jury death qualification, challenged by

counsel at trial but not squarely raised on direct appeal,

violates the sixth, eighth, and fourteenth amendments of the

United States Constitution., This is a claim recently considered

by this Court in Kennedy v. State, Case No. 68,264 (February 12,

1986), and which is presently pending before the United States

Supreme Court in Lockhart v. McCree, Docket No. 84-1865. Because

four jurors who could have fairly sat at the guilt/innocence

phase were excluded from Mr. Johnson's jury, his case squarely

presents the McCree issue.

The second claim is that Mr. Johnson received ineffective

assistance of counsel on his direct appeal.

II. JURISDICTION

Claim I. This Court's jurisdiction derives from the Florida

Constitution. Article V, Section 3(b)(1), (7), and (9) (1981),

and Rule 9.030(a)(3), Fla. R. App. P. See also Rule 9.100, Fla.

R. App. P. Relief under Fla. R. Cr. P. 3.850 is not available

because the issue presented in this application was raised at

trial and properly preserved but not fully raised on direct

appeal of the judgment and sentence.

The writ of habeas corpus has been justly labelled “the

Great Writ", because of its historic role as the guarantor of

liberty. See generally Allison v. Baker, 152 Pla. 274, 11 So.2d

578 (1943); W. Duker, A Constitutional History of Habeas Corpus

(1982). Por this reason, both the State and federal constitu-

tions explicitiy provide for the writ. Fla. Const. Art. V,

Section 3(b)(9); Art. I, Section 13; U.S. Const. Art. I, ‘Section

9, clause 2. "Essentially, it is a writ of inquiry, and issued

to test the reason or grounds of restraint or detention."

Allison v. Baker, 11 So.2d at 579. Under our constitutional

system, detention which violates the state or federal

constitution is illegal, and reviewable by a writ of habeas

corpus. The infringement of the sixth amendment guarantee of an

impartial jury is therefore properly cognizable in this court

under Article V. We have applied for an original writ in this

Court because Rule 3.850 appears to foreclose litigation of this

claim in the trial court by a motion to vacate sentence and

judgment. But the allocation of some habeas corpus jurisdiction

to the trial court under Rule 3.850 hardly divests this Court of

its constitutionally authorized jurisdiction, if the remedy under

Rule 3.850 is unavailable. See United States v. Hayman, 342 U.S.

205 (1952) (interpreting 28 U.S.C. Section 2255, the model for

Rule 3.850); Mitchell v. Wainwright, 155 So.2d 868, 870 (Pla.

1963) (enactment of Rule 3.850 does not suspend the writ of

habeas corpus if it affords the same rights available under the

writ).

Governor Graham signed Mr. Johnson's death warrant on

January 16, 1986, three days after the United States Supreme

Court heard oral argument on the constitutionality of the precise

death qualification procedure used in Mr. Johnson's trial. If

the United States Supreme Court affirms the Eighth Circuit, it

will, in effect be pronouncing Mr. Johnson's conviction and

sentence unconstitutional. This pronouncement, of course, will

have little meaning unless Mr. Johnson's execution is stayed. We

fully recognize that McCree is not yet “new law". A decision

affirming the judgment of the Eighth Circuit, however, would

clearly satisfy this court's definition of new law which may be

invoked in a collateral challenge to a conviction. Witt v.

State, 387 So.2d 922 (Pla. 1980).

It would be possible, of course, for Mr. Johnson simply to

apply directly to the federal courts for habeas corpus relief.

We believe that it would be proper for this Court to reconsider

the question Mr. Johnson has presented because unique features of

Florida's capital sentencing procedure are bound up in the

application of McCree to this case and because we can present a

new study confirming the effects of death qualification on juries

in this State. The Florida provision for judicial override of

the jury's sentencing verdict, the Florida requirement of a

majority recommendation, rather than a unanimous decision, and

this Court's decisions concerning nonreliance on residual doubts

of the defendant's guilt as a mitigating circumstance, alter the

balance in Florida between the interests of the defendant in a

fair jury and the state's interest in death qualification.

Claim II. This Court has jurisdiction over claims of

ineffective counsel on appeal. Art. V, Section 3(b)(1), (9),

Pla. Const. Wilson v. Wainwright, 474 So. 2d 1162 (Pla. 1985).

III. FACTUAL BASIS POR RELIEF

Claim I. Trial counsel filed a pretrial motion objecting to

the selection of a death qualified jury (R. 2312-15; Tr. 2115

ff.), which was denied. (Tr. 2125). Specifically, trial counsel

noted that excluding jurors under Witherspoon created an

unconstitutionally "biased" jury, not fairly drawn from a cross-

section of the community. (Tr. 2314). Counsel also requested

individual and sequestered voir dire (R. 2308-09; Tr. 2128 f£.),

and renewed that motion at the start of jury empanelment. (Tr.

12). Both motions were denied. (Tr. 13).

Four prospective jurors were excluded because of their

attitudes on capital punishment, despite their proven ability to

be impartial at the guilt/innocence phase of trial. (Tr. 238-41,

249-51, 311-13, 314-15). At the conclusion of jury selection,

trial counsel renewed his objection to the removal for cause of

the four death scrupled jurors. (Tr. 411). Trial counsel's

motion for new trial reiterated his objections to the death

qualification of Mr. Johnson's jury. (R. 3443-45).

In his Initial Brief on direct appeal, Mr. Johnson's counsel

challenged the exclusion of juror Patsy McWhorter for cause.

(Issue 5 at 28), arguing that her disqualification violated

Witherspoon. Counsel quoted extensively from the colloquy

between trial counsel and the juror, which demonstrated that the

juror

would be a fair and impartial juror in the guilt or innocence

phase of the trial, but would probably be unable to vote for a

death sentence in the penalty phase. (Initial Brief at 29,

quoting Tr. 239-240.) In its Brief, the State identified and

presented to this Court the very issue which trial counsel had

argued, but which appellate counsel overlooked. The State

asserted that Mr. Johnson had lost the right to contest Ms.

McWhorter's exclusion on the grounds asserted on direct appeal,

because at trial counsel's contemporaneous objection had been

based upon a different theory entirely (Grigsby). (Answer Br. at

17). The State cited this Court's previous decisions in Riley v.

State, So.2d (19 ), and Gafford v. State, So.2d

(Pla. ), as authority for the rule that jurors could, indeed,

be excluded, even if they could be entirely fair in deciding

guilt or innocence. (Answer Br. note 6 at 17). In essence, the

State's argument was that the only basis upon which counsel

could challenge the disqualification of the juror for cause on

direct appeal was the precise objection stated at trial. The

state quoted counsel:

Mr. Sharer: OK, Do you think, mam, if you

did not have to set at the penalty portion

and have to recommend, if you were on the

penalty, do you think if you were asked to

Sit at the trial part where guilt or

innocence is determined, do you think you

could?

Mr. Sharer: You Honor, I would ask that Mrs.

McWhorter not be excused for cause because

she could sit as a fair juror possibly at the

guilt or innocence portion. If she was, uh,

did not if she sat, could not sit fairly at

the penalty portion, a substitute juror could

be sat to take her place.

Mr. Sharer: Please the court, I would like

to have my objection on the record to that

challenge for cause and renew that motion I

Gid make pretrial regarding that type of

juror who only has a problem at the penalty

phase and not the guilt phase.

Appellate counsel ignored this signal; although he considered it

important to challenge the disqualification of Juror McWhorter,

he made no mention of Riley in his Reply Brief.

This Court, in ruling on the direct appeal, found "After

studying this prospective juror's responses to the questions

asked on voir dire... that she unequivocally stated her

opposition to imposing the death penalty. The trial court,

therefore, properly excused her." | = = So.2d at.

Claim II. Petitioner submits that there are at least three

viable issues which were properly preserved below and which

appellate counsel unreasonably failed to raise in the proceedings

before this Court:

1. Appellate counsel unreasonably failed to argue that the

trial court's refusal to sequester the jury, once deliberations

on guilt/innocence had begun, was reversible error. Even if this

Court finds such conduct was not ineffective, Petitioner contends

this Court should address the issue as a denial of a fundamental

constitutional right.

2. Appellate counsel unreasonably failed to clearly argue

that the exclusion of four jurors during the death qualification

voir dire violates Mr. Johnson's sixth, eighth and fourteenth

amendment rights, and that therefore petitioner's judgments and

sentences cannot stand. In the event the court finds such

omission was not ineffective, Petitioner contends that this

Grigsby error is fundamental error.

3. Appellate counsel unreasonably failed to argue that the

admission of testimony of James Smith, to the effect that

petitioner expressed an intent to commit future, violent crimes,

constituted reversible error and was highly prejudicial at both

the guilt-innocence and the penalty phases of petitioner's trial.

4. & 5. Appellate counsel failed to fully argue two clear

instructional errors at penalty phase which unconstitutionally

misled the jury,

IV. RELIEP SOUGHT

Claim I. Mr. Johnson seeks immediate relief, in the form of

a stay of execution, in order to preserve this Court's

jurisdiction over his constituti®@nal claims. The issue raised in

this application is currently before the United States Supreme

Court. Lockhart v. McCree, Docket No. 84-1865. During argument,

on January 13, 1986, the Supreme Court Justices specifically

inguired into the implications of Lockhart for the State of

Florida, presumably because in Florida judges, not juries, have

ultimate responsibility for sentencing decisions. In Kennedy v.

Wainwright, this Court voted 4 - 3 to deny a stay in a case which

was in the same jurisdictional posture as is Mr. Johnson. The

United States Supreme Court subsequently unaninously stayed Mr.

Kennedy's execution, based upon McCree. The United States

Supreme Court has granted stays of execution in other cases

raising the issue in Lockhart, including one case the procedural

posture of which is similar to Mr. Johnson's. Celestine v.

Blackburn, stay granted, 106 S.Ct. 31 (1985). Celestine raised a

challenge to the death qualification of his trial jury on direct

appeal. State v. Celestine, 443 So.2d 1091 (La. 1983). The

United States Supreme Court denied certiorari. 105 S.Ct. 224

(1984). Mr. Celestine raised the issue in a petition for a writ

of habeas corpus in the United States District Court. The Fifth

Circuit denied relief. Celestine v. Blackburn, 750 F.2d 3531

(Sth C. 1984). The Supreme Court granted the application for a

Stay. 106 S.Ct. 31 (September 25, 1985). Subsequently, relying

on Celestine, the Fifth Circuit granted a stay of execution in a

case presenting the same question. Rault v. Louisiana, F.2d

, Case No. 85-3281 (5th Cir. October 7, 1985).

The United States Supreme Court has also stayed execution in

two cases presenting the Lockhart issue in successive petitions

for a writ of habeas corpus. Bowden v. Kemp, 106 S.Ct. 213

(1985); Moore v. Blackburn, A-261 (October 4, 1985). This Court

likewise has jurisdiction to stay Mr. Johnson's execution, Fla.

Constitution, Art. V, Section 3(b)(7). The importance of the

question, the probability of a landmark decision by the United

States Supreme Court in the next few months, and Mr. Johnson's

clear entitlement to relief should the Supreme Court affirm the

Eighth Circuit in Lockhart, suggest that a stay is necessary and

appropriate. Purthermore, since the issue presented in this

application concerns the impartiality of the fact-finder, it

calls into question the very reliability of the verdict and

sentence of death.

a Pe ie)

Following sufficient opportunity to review the complex

social science data at issue in Lockhart, this Court should

reconsider whether death qualification is constitutional in

Florida. Mr. Johnson requests an evidentiary hearing, at which

he would present many of the studies which are in the Lockhart

record. If this Court concludes that any evidentiary hearing is

needed before it may decide the merits of Mr. Johnson's claim, it

should remand this case to the trial court for such a hearing.

It may well be, however, that the United States Supreme Court's

decision will determine, as a matter of law, how much injury a

criminal defendant suffers as a result of death qualification.

It will only remain for this Court to decide how much weight to

attach to the State's countervailing interest, which, as we show,

is negligible because of the sentencing procedure used in Plorida

but not in Arkansas.

This Court, after full consideration of the record, should

set aside Mr. Johnson's conviction, and order that he be given a

new trial.

Claim II. A stay of execution is required so that this

Court may give deliberate and careful consideration to Mr.

Johnson's constitutional claims. Mr. Johnson's appellate counsel

was ineffective, in violation of the sixth, eighth, and

fourteenth amendments, and he is entitled to a new appeal.

V. BASIS FOR RELIEF

A. FIRST GROUND FOR RELIEF

On February 12, 1986, this Court, by a vote of 4 to 3,

denied a stay of execution in the case of Edward Kennedy.

Kennedy, whose jury was death qualified, argued that a stay

should be granted because the United States Supreme Court will

soon decide Lockhart v. McCree, 106 S. Ct. 59 (1985) (granting

certiorari in Grigsby v. Mabry, 758 F.2d 226 (8th Cir. 1985) (en

banc), which will resolve whether the process of Witherspoon

death qualification violates the Constitution.

Following this Cour*'s 4 - 3 denial of a stay, Kennedy

applied for a stay pending certiorari in the United States

Supreme Court. The only issue raised in the application was the

Grigsby claim. The Supreme Court unanimously granted the stay.

The stay in Kennedy is only the most recent example of the

Supreme Court's determination that no death-sentenced inmates

raising the Grigsby claim shall be executed while the Grigsby

issue is unresolved. Only one week prior to the unanimous stay

in Kennedy, the Court had unanimously stayed the execution of a

North Carolina inmate. Rooks v. Woodard, U.S. (February

10, 1986), and in Bowden v. Kemp, 774 F.2d 1494 (llth Cir. 1985),

the Eleventh Circuit had denied a stay, finding:

BY THE COURT:

The United States District Court for the

Middle District of Georgia has dismissed

petitioner's successive petition for the writ

of habeas corpus and denied petitioner a

certificate of probable cause to appeal.

Presently pending is his petition for a

certificate of probable cause and for his

stay of execution pending appeal.

The petition presents only one issue

involved in Grigsby v. Mabry, 758 F.2d 226

(8th Cir. 1985), cert. granted sub nom

Lockhart v. McCree, U.S. , 106 S.

Ct. s Ot ei Ve Ze (Get. Fe 19808).

In this Circuit, prior to and since Grigsby,

we have rejected that contention. See

Jenkins v. Wainwright, 763 F.2d 1390 (llth

Cir. 1985), Martin v. Wainwright, 770 F.2d

918 (llth Cir. 1985), and Smith v. Balkcom,

660 F.2d 573, 575-84 (5th Cir. Unit B 1981),

modified, 671 F.2d 858 (5th Cir. Unit B

1981), cert. denied, 459 U.S. 882, 103 S. Ct.

181, 74 L. Ed. 2d 148.

Since granting certiorari in Grigsby,

the Court has stayed executions in Celestine

v. Blackburn, U.S. e 106 S&S. Ct. 31,

87 L. Ed. 2d (1985), and Moore v.

Blackburn, 774 F.2d 97 (1985). It is

asserted that these two stays by the High

Court were granted because of the Grigsby

issue involved in each of them; the orders

granting those stays do not sufficiently

advise us of the basis for ther.

Under the precedent binding us in this

Circuit, the District Judge's dismissal of

the successive petition is correct and the

petitions for certificate of probable cause

and stay of execution are without merit.

Were we to grant CPC and reach the merits of

the proposed appeal on consideration of the

petition for stay of execution, See Barefoot

v. Estelle, 463 U.S. 880, 103 S. Ct. 3383, 77

L.Ed.2d 1090 (1983), we should be bound to

affirm the district court. The grant of the

writ of certiorari in Gr sgeby is no authority

to the contrary; any implications to be drawn

therefrom may be discerned by application to

the Supreme Court.

The petition for certificate of probable

cause is DENIED.

The petition for stay of execution is

DENIED.

Id. at 1494. The Supreme Court unanimously granted a stay.

Bowden v. Kemp, 106 S. Ct. 213 (1985). The Court has granted

stays in at least five additional cases raising the Grigsby issue

in a variety of procedural postures. See

Celestine v. Blackburn;, stay granted (October 4, 1985) (succes-

sive petition) (Grigsby claim raised on direct appeal, cert.

denied); Kenley v. Missouri, Docket No. 85-5533, stay granted

(October 8, 1985); Guzmon v. Texas, 697 S.W. 2d 404 ;(Tex. Cr.

App. 1985), stay granted 54 U.S.L.W. 3391 (December 6, 1985);

Gilmore v. Missouri, 697 S.W. 2d 172 (Mo. 1985) stay granted 54

U.S.L.W. 3423 (December 24, 1985). See also Rault v. Louisiana,

F.2d » Case No. 85-3281 slip op. (5th Cir. October 7,

1985) (denying rehearing but granting stay of execution in light

of Moore and Celestine).

Mr. Johnson submits that the State courts should stay his

execution, because the proceedings in state court should be seen

as the "main event, so to speak, rather than a tryout on the road

for what will later be the determinative federal habeas hearing."

Wainwright v. Sykes, 433 U.S. 77, 91 (1977). The United States

Supreme Court has in recent years evinced a deep concern for

preserving state autonomy within our federal structure and for

enhancing the proceedings in State court as decisive and

portentous events. See, e.g., Barefoot v. Estelle, 103 S. Ct.

3383 (1983); Marshall v. Lonberger, 103 S. Ct. 843 (1983); Stone

v. Powell, 428 U.S. 465 (1976); Engle v. Isaac, 102 S. Ct. 1558

(1982); Rose v. Lundy, 102 S. Ct. 1198 (1982).

Mr. Johnson will not here repeat the social science studies

and testimony at issue in Grigsby/McCree and detailed in Kennedy.

The overwhelming evidence discussed in the Grigsby/McCree

opinions and in the Kennedy pleadings demonstrate what many

10

experienced lawyers and judges have long believed: juries from

. which those who would not be able to vote for the death penalty

———- ---have been removed are more likely to convict -- based on the same

evidence -- than an ordinary criminal jury. The legal question

posed in this application, and which is before the United States

Supreme Court in Lockhart, is a narrow one. May the State

exclude jurors who will be fair in the guilt phase of a

bifurcated trial, simply because in the separate, sentencing

phase, they would never vote to inflict the death penalty?

We do not contend that jurors whose opinions about capital

punishment will influence their decisions about the defendant's

guilt or innocence should serve on capital juries. This case

involves only those jurors, sometimes described as "automatic

life imprisonment" jurors, who are qualified to serve in the

guilt phase of a capital trial, but who are excluded for the

convenience of the State, so that additional alternate jurors are

not required for the sentencing phase of the trial. We present

our analysis of this issue in four parts: the defendant's

unquestioned constitutional right to a trial by a fair and impar-

tial jury; the defendant's right to a jury representing a fair

cross section of the community; the state's interest in death

qualification; and whether the state's interest is weighty enough

to overcome the defendant's constitutional right.

a. Death Qualified Juries Are Not Impartial

The Sixth Amendment to the United States Constitution

guarantees that “"{iJn all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impar-

tial jury of the state and district wherein the crime shall have

been committed. ..." In Duncan v. Louisiana, 391 U.S. 145

(1968), decided only two weeks before Witherspoon, the Supreme

Court held that this provision was applicable to the States

through the due process clause of the fourteenth amendment.

The guarantees of jury trial in the Federal

and State Constitutions reflect a profound

judgment about the way in which law should be

enforced and justice administered. ... If

the defendant preferred the common sense

if 1l

judgment of a jury to the more tutored but

perhaps less sympathetic reaction of the

single judge, he was to have it. Beyond

this, the jury trial provisions in the

Federal and State Constitutions reflect a

fundamental decision about the exercise of

official power -- a reluctance to entrust

plenary powers over the life and liberty of

the citizen to one judge or a group of

judges.

Id. at 156. Article I of the Florida Constitution, Section 22,

provides: "The right of trial by jury shall be secure to all and

remain inviolate. The qualifications and number of jurors, not

fewer than six, shall be fixed by law.”

Because the right to trial by jury is inextricably linked to

ideals of democracy and representation, "the proper functioning

of the jury system, and indeed our democracy itself, requires

that the jury be a ‘body truly representative of the community

and not the organ of any special group.'" Glasser v. United

States, 315 U.S. 60, 86 (1942). "The constitutional standard of

fairness requires that a defendant have ‘a panel of impartial

"indifferent™ jurors.'" Murphy v. Florida, 421 U.S. 794, 799

(1975). Death qualification, like exposure to pretrial pub-

licity, produces a jury which is predisposed to convict. See

Irvin v. Dowd, 366 U.S. 717 (1961); Sheppard v. Maxwell, 384 U.S.

333 (1966); Patton v. Yount, U.S. , 104 S.Ct. 2885 (1984).

Unlike pretrial publicity, however, the predisposition resulting

from death qualification is easily avoided, because it is

entirely within the control of the court.

Because overwhelming evidence shows that death qualified

juries are not impartial, death qualification necessarily vio-

lates the Constitution unless the State's interest in the proce-

dure overcomes the defendant's constitutional right.

b. Death Qualification Violates the "Fair Cross Section"

Requirement

In addition to the fundamental requirement that a trial jury

be fair and impartial, it must also be representative of the

community. "“"[{T)he fair cross-section requirement [is] ...

fundamental to the jury trial guaranteed by the Sixth Amendment.

- « »" Taylor v. Louisiana, 419 U.S. 522, 530 (1975). In Duren

12

v. Missouri, 439 U.S. 357, 364 (1979), the Court explained:

In order to establish a prima facie violation

of the fair-cross section requirement, the

defendant must show (1) that the group

alleged to be excluded is a "distinctive"

group in the community; (2) that the repre-

sentation of this group in venires from which

juries are selected is not fair and reason-

able in relation to the number of such per-

sons in the community; and (3) that this

underrepresentation is due to the systematic

exclusion of this group in the jury selection

process.

The Eighth Circuit applied this standard:

There is no functional difference between

excluding a particular group of eligible

citizens from the ‘jury wheels, pools of

names, panels or venires from which juries

are drawn' and systematically excluding them

from sitting on a petit jury. Duren and

Taylor forbid the former explicitly and can

be read to forbid the latter implicitly.

Duren, 439 U.S. at 363-67; Taylor, 419 U.S.

at 526-31. The result is the same in either

case: a distinct group of the citizenry is

prevented from being considered for service

on petit juries.

Grigsby v. Mabry, 758 F.2d note 7 at 230. The court found that

the group of jurors who are excluded by death qualification is

distinctive and sizeable; that the representation of such persons

on venires is not fair and reasonable; and that they are

systematically excluded by the death qualification process.

Grigsby, 758 F.2d at 229.

The representation of a cross section of the community helps

to make jury verdicts more reliable, since without such a cross

section, the jury is deprived of "a perspective on human events

that may have unsuspected importance in any case that may be

presented." Peters v. Kiff, 407 U.S. 493, 503-4 (1972) (plurality

opinion). Experimental data on death qualification confirms the

relevance of this principle here. Cowan, Thompson and Ellsworth

found that juries which included excludable jurors remembered the

evidence more accurately than did members of juries which

included only death quaiified jurors. The Effects of Death

Qualification on Jurors’ Predisposition to Convict and on the

Quality of deliberation, 8 L. & Hum. Behav. at 73. The authors

concluded, "We expect that the superiority of mixed juries is

also a function of the likelihood that errors of fact are more

13

likely to be corrected when there is a wide range of viewpoints

and a higher level of controversy." Id. at 76. An unrepresenta-

tive jury cannot reflect "the common sense of the community.”

Ballew v. Georgia, 435 U.S. at 232. Death qualification impairs

the abiaaity of the jury to carry out this vital function and

denies the defendant his constitutional right to a representative

jury.

c. The State's Only Interest in Death Qualifica-

tion is Piscal and Administrative

The State's only interest in a criminal trial is in seeing

justice done, not in obtaining a conviction or a particular

sentence. Berger v. United States, 295 U.S. 78 (1935). For this

reason, the State has no legitimate claim of entitlement to a

death qualified jury because it is more favorable to the

prosecution than ordinary criminal juries. yet this is the

reasoning which lies behind the contention voiced in the

Petitioner's brief in Lockhart, and earlier in Spinkellink, that

juries which are not death qualified may be “defendant prone."

Discussing this position, the Eighth Circuit observed that this

is "the wrong issue. The issue is not whether non-death-

qualified jurors are acquittal prone or death-qualified jurors

are conviction-prone. The real issue is whether a death

qualified jury is more prone to convict than the juries used in

noncapital criminal cases -- juries which include the full spec-

trum of attitudes and perspectives regarding capital punishment.

The fact that the state charges a defendant with a capita! crime

should not cause it to obtain a jury more prone to convict than

if it had charged the defendant with a noncapital offense."

Grigsby v. Mabry, 758 F.2d at 2419 n. 31. The only meaningful

standard of measurement of jury impartiality is an ordinary

criminal trial jury; the evidence shows that compared to such a

jury, death qualified juries are biased in favor of the prosecu-

tion. Since this kind of bias undermines the reliability of jury

verdicts, and creates a risk of erroneous convictions, the State

has no interest in obtaining a death qualified jury, unless the

14

administrative advantages of having a single jury panel decide

both guilt and penalty is greater than the constitutional

deficiencies arising from the demonstrated bias and unreliability

of death qualified juries.

(1). The Plorida Statutory Scheme Does Not Require Death

Qualification.

The first, and perhaps the best, measure of the State's

interest is the etatutory scheme which governs jury selection in

this State. Pla. Stat. Section 913.13 provides that “"[a]) juror

who has beliefs which preclude him from finding a defendant

guilty of an offense punishable by death shall not be qualified

as a juror in a capital case." This section does not authorize

the disqualification of jurors who can find a defendant guilty if

the prosecution carries its burden, but who will not vote to

inflict a death sentence. The Florida legislature, therefore,

has not proclaimed any interest in the death qualification pro-

cedure followed in this or any other case. The only other rele-

vant statutory authority is Fla. Stat. Section 913.03(10), which

authorizes the removal of jurors whose “state of mind regarding

the defendant, the case, the person alleged to have been injured

by the offense charged, or the person on whose complaint the

prosecution was instituted that will prevent him from acting with

impartiality. . .." But reliance on this provision to justify

the exclusion of jurors who will be fair to both sides in the

guilt phase but not in the penalty phase begs the question. The

problem of impartiality in the penalty phase arises only if the

same jury must decide both guilt or innocence and penalty. See

Winick, Witherspoon in Florida: Reflections on the Challenc for

Cause of Jurors in Capital Cases in a State in Which the Judge

Makes the Sentencing Decision, 37 U. Miami L. Rev. 825, 835-40

(1983).

Fla. Stat. Section 921.141(1) provides, in relevant part:

Upon conviction or adjudication of guilt of a

defendant of a capital felony, the court

shall conduct a separate sentencing pro-

ceeding to determine whether the defendant

should be sentenced to death or life impris-

onment as authorized by s. 775.082. The pro-

ceeding shall be conducted by the trial judge

15

conviction is surely far higher than the social cost of an

erroneous sentence of life imprisonment. See 4 W. Blackstone,

Commentaries on the Laws of England 358 (better that ten guilty

men go free than one innocent person be convicted).

(2). The Trial Judge's Power to Override the Jury's

Recommendation Makes Death Qualification Before

Trial Unnecessary.

Florida law gives the trial judge the final decision on

sentencing in a capital case. Fla. Stat. Section 921.141(3).

The jury's recommendation receives "great weight” in the judge's

final decision, Tedder v. State, 322 So.2d 908 (Fla. 1975), but

judges retain, and not infrequently exercise, the power to over-

ride jury recommendations of life imprisonment or death. See

Mello and Robson, Judge over Jury: Florida's Practice of Imposing

Death Over Life in Capital Cases, 13 Fla. St. Univ. L. Rev. 31

(1985).

Because the trial judge decides sentence

without being bound by a jury recommendation,

he may impose capital punishment in an appro-

priate case even if ‘automatic life imprison-

ment' jurors remain on the capital jury and

vote, as inevitably they will, for life

imprisonment. Indeed, whatever guidance the

judge is provided by the jury's recommenda-

tion on the life or death question is still

provided by a jury whose members include

‘automatic life imprisonment' jurors. Since

voir dire questioning will identify those

jurors as being ‘automatic life imprisonment'

jurors, the judge will be aware of the number

of such jurors sitting on the capital jury

and will be able to give appropriate weight

to the jury's advisory vote on sentence.

Winick, supra, 37 U. Miami L. Rev. at 852 (footnotes omitted).

In sum, Florida's statutory procedure already provides ample

safeguards against "erroneous" failures to impose a death sen-

tence. For this reason, the State's interest in an impartial

jury in the sentencing phase is insubstantial by comparison to

the defendant's constitutional right to have an impartial jury

decide the question of guilt or innocence.

(3). This Court's decisions preclude reliance on

residual doubts about guilt in mitigation of

sentence.

The United States Court of Appeals for the Eleventh Circuit,

in Smith v. Balkcom, supra, 660 F.2d at 580, concluded that --

17

regardless of the strength of the evidence that demonstrates that

death qualified juries were predisposed in favor of the

prosecution -- death qualification was not constitutional error

because "[t}jhere is a potential benefit to a defendant...

which would be lost were the jury which found guilt discharged

and a new jury empaneled to decide punishment. The members of

the jury which heard the evidence in the guilt phase may believe

that guilt has been proven to the exclusion of a reasonable

doubt, "and yet, some genuine doubt exists. . .. The juror

entertaining doubt which does not rise to reasonable doubt can be

expected to resist those who would impose the .. . penalty of

death. . . ." Id. This Court has repeatedly held that the

sentencing judge should give no weight to jury recommendations

based upon such lingering doubts about the defendant's guilt. In

Buford v. State, 403 So.2d 943 (Fla. 1981), this Court wrote:

A convicted defendant cannot be ‘a little bit

guilty.’ It is unreasonable for a jury to say

in one breath that a defendant's guilt has

been proved beyond a reasonable doubt and, in

the next breath, to say someone else may have

done it, so we recommend mercy.

Id. at 953. Accord Burr v. State, 466 So.2d 1951, 1054 (Fla.

1985); Sireci v. State, 399 So.2d 964, 972 (Fla. 1981). While we

do not endorse this rule, the holding distinguishes Florida's

capital sentencing scheme from the Georgia case discussed in

Smith v. Balkcom. It is simply inconsistent to justify a system

which impairs the defendant of a fair jury in the guilt phase of

a trial on the basis of a "benefit™ to which -- as a matter of

state law -- a defendant in a Plorida capital trial is not

entitled.

Of course, it would not be necessary to empanel a new jury

at all since in Plorida the judge, not the jury, makes the final

sentencing decision, and could give less weight to a jury

recommendation influenced by jurors who would never vote to

impose a death sentence. Nor would this be necessary if the

court simply empaneled additional alternate jurors as substitutes

for jurors who were not qualified to serve in the penalty phase.

Since none of the reasons which ordinarily support death

18

qualification are applicable to Florida's sentencing process, a

defendant's constitutional right to trial by an impartial jury

surely must prevail in the balance.

The only other justification the state might offer is the

administrative and fiscal burden of selecting additional jurors

for the sentencing phase. Even if such fiscal considerations

could play a proper role in this Court's constitutional analysis,

they are insufficient to overcome the defendant's constitutional

rights. These expenses are slight by comparison to those

incurred by, for example, a change of venue. Furthermore, they

would be partially, if not entirely, offset by a reduction in the

length of voir dire before trial,and by the increased accuracy of

jury verdicts, which would reduce the costs of appellate review

of capital cases.

dad. The Right to Trial by an Impartial Jury Outweighs

the State's Interest in Death Qualification before

Trial.

"It is, of course, settled that a State may not entrust the

determination of whether a man is innocent or guilty to a tri-

bunal ‘organized to convict.'”" Witherspoon, 391 U.S. at 521. Yet

this is precisely what happens when we entrust the determination

of guilt or innocence to a death qualified jury. Death qualifi-

cation undermines the fundamental premise of our jury system:

that the fairest trial is one before a group fairly and randomly

chosen from the entire community, which mirrors that community in

its values and its diversity. Without compelling reasons, the

state may not abridge this right. A similar compromise between

the state's interest and the right to a trial by a jury

representing a fair cross section of the community is presented

in challenges to a prosecutor's racially motivated use of

peremptory challenges. The Supreme Court has agreed to consider

this issue this Term as well. Batson v. Kentucky, Docket No. 84-

6263, cert. granted, 85 L.Ed 476 (1985). Florida's capital

sentencing process makes death qualification before trial

completely unnecessary.

19

B. SECOND GROUND FOR RELIEF

The appellate-level right to counsel rests on the sixth

amendment right to effective assistance of counsel. Evitts v.

Lucey, U.S. . 165 S. Ct. 830 (1985). Appellate counsel

must function as "an active advocate on behalf of his client,"

Anders v. California, 386 U.S. 738 (1967), who must receive

"expert professional . . . assistance .. . [which is] necessary

in a legal system governed by complex rules and procedure ..."

Lucey, 105 S.Ct. 830, n. 6. An indigent, as well as "the rich

man, who appeals as of right, [must] enjoy[] the benefit of

counsel's examination into the record, research of the law, and

marshalling of arguments on his behalf . .." Douglas v.

California, 372 U.S. 353, 358 (1965) (equal protection right to

counsel on appeal).

The process due appellant is not simply an appeal with

representation by "a person who happens to be a lawyer..."

Lucey, 105 S.Ct. at 835 (quoting Strickland v. Washington, 104

S.Ct. 2052 (1984). The attorney must act as a "champion on

appeal," Douglas, 372 U.S. at 356, not “amicus curiae". Anders,

386 U.S. at 744.

These are not merely arcane jurisprudential precepts:

"Lawyers in criminal cases are necessities, not luxuries."

United States v. Cronic, 80 L.Ed. 657 , 664 (1984). Counsel is

crucial, to "meet the adversary presentation of the prosec.cion."

Lucey, 105 S.Ct. 830, 835, n.6. Unless counsel requires the

"prosecution's case to survive the crucible of meaningful

adversarial testing,” Cronic, 80 L.Ed. at 666, this Court cannot

easily perform its assigned function, as the leader of Florida's

judiciary, to ensure "that the guilty be convicted and the

innocent go free." Lucey, 105 S.Ct. 830, 835 (citations

omitted). "'Truth,' Lord Eldon said, ‘is best discovered by

powerful statements on both sides of the question.'" Cronic, 80

L.Ed. at 657 (citing the quote from Kaufman, Does the Judge Have

a Right To Qualified Counsel, 61 ABAJ 569, 569 (1975)).

Effective counsel does not leave an appellate court with

20

"the cold record which it must review without the help of an

advocate." Anders, 386 U.S. at 745. Neither may counsel play

the role of "a mere friend of the court assisting in a detached

evaluation of the appellant's claim." Lucey, 105 S.Ct. at 835.

Counsel must "affirmatively promote his client's position before

the court .. . to induce the court to pursue all the more

vigorously its own review because of the ready references not

only to record, but also to the legal authorities as furnished it

by counsel.” Anders, 386 U.S. at 745; see also, Mylar v.

Alabama, 671 F.2d 1299, 1301 (llth Cir. 1982) ("Unquestionably a

brief containing legal authority and analysis assists an

appellate court in providing a more thorough deliberation of an

appellant's case.").

"The mere fact that [this Court is] obligated to review the

record for errors cannot be considered a substitute for the legal

reasoning and authority typically provided by counsel." Id., at

1302. In addition, the advocacy of counsel must be timely, not

after oral arguments or on rehearing. "An appellate court

conducts its most in-depth and complete review of a case during

the direct appeal. A petition for rehearing typically receives a

more summary consideration .. . Accordingly, the duties of an

‘active advocate’ mandate that appellate counsel assert his [or

her] client's position at the most opportune time." Id.

This Court has long protected the right of indigents to

effective appellate representation. In Barclay v. Wainwright,

444 So.2d 956 (Fla. 1984), this Court granted a new appeal where

counsel's "representation of appeal fell below an acceptable

Standard.* Subsequently, upon Mr. Barclay's new appellate

record, briefing, and argument, this ones reversed Barclay's

death sentence, and ordered that a life sentence be imposed.

More recently, this Court recognized that a new appeal is

available whenever appellate counsel's deficiencies cause a

prejudicial impact on the petitioner by "compromising the

appellate process to*such a degree as to undermine confidence in

the fairness and correctness of the outcome..." Harris v.

21

Wainwright, So.2d (Fla. No. 66 23, June 13, 1985, slip

at 3).

Appellant neither can be denied appellate counsel as "a

sacrifice of [an] unarmed prisoner{] to gladiators," Williams v.

Twomey, 510 F.2d 634, 640 (7th Cir. 1975), cert. denied 423 U.S.

876 (1975), nor can he be provided an attorney whose

ineffectiveness makes it "difficult to distinguish [the

appellant's] .. . situation from that of someone who had no

counsel at all." Lucey, 105 S.Ct. 830, 855, n.6. Nominal

representation on an appeal as of right .. . does not suffice to

render the proceedings constitutionally adequate; a party whose

counsel is unable to provide effective representation is in no

better position than one who has no counsel at all." Id. at 836.

Counsel may not waive his client's defense, Id. at n. 6, and be

considered effective.

While there is no federal constitutional right to an appeal

generally, Jones v. Barnes, 103 S.Ct. 3308 (1983), the Eighth

Amendment demands meaningful appellate review in capital cases.

To ensure that death sentences are imposed in an evenhanded,

rational, and consistent manner, as opposed to wantonly and

freakishly, prompt and automatic appellate review is require.

Gregg v. Georgia, 428 U.S. 153 (1976) (opinicn of Justices

Stewart, Powell, and Stevens); Proffitt v. Florida, 428 U.S. 242

(1976). If effective assistance of appellate counsel is a

constitutional imperative in cases in which the constitution does

not even require an appeal, it follows a fortiori that enhanced

effectiveness is required when the appeal is required by the

Eighth Amendment.

Counsel on direct appeal rendered ineffective assistance of

counsel in failing to raise three meritorious claims.

1. Permitting the jury to separate during deliberations.

The case of Paul Johnson was one in which there was a great

deal of pre-trial publicity. The publicity was such that a

defense Motion for Change of Venue [Tr. 2287-94] was granted in

(Order transferring venue to Lake County, Florida [Tr. 2339]

22

Amended Order [Tr. 2364]).

During the deliberation of the jury at guilt phase of this

capital trial, the Court permitted the jury to separate and go

home. [Tr. 1598-9]. Counsel objected to this procedure and the

objection was overruled. (Tr. 1599-1600). When the jury

returned after going home overnight, counsel again objected to

the procedure, and moved for a mistrial. [Tr. 1603]. The jury

returned with its verdict less than two hours later.

On September 21, 1981 at 3:58 P.M. the jurors, after having

been instructed by the Court, retired to deliberate the

guilt/innocence of Paul Johnson [Tr. 1596]. At 9:04 P.M. the

jury returned to the courtroom and at 9:06 P.M. the Court excused

the jury for the evening indicating they return at 9:00 A.M. the

following day. [Tr. 1597-99]. A request for sequestration of the

jury overnight was made by defense counsel before the Court

instructed and dismissed the jury. [Tr. 1599]. The request was

denied by the Court. [Tr. 1600].

On September 22, 1981 at 9:00 A.M., before the jury returned

to the courtroom, defense counsel lodged a Motion for Mistrial on

the ground that the jury had not been sequestered. The Motion

was denied [Tr. 1603]. Defense counsel had previously moved at

the onset of the trial for sequestration of the jury for the

entire trial. [Tr. 9]. An additional Motion for sequestration

during voir dire was made because of the steuive amount of pre-

trial publicity. [Tr. 2128-32].

The law in Florida is quite clear on the issue of jury

sequestration during the deliberation phase of a capital trial.

In Livingston v. State, 458 So.2d 235 (Fla. 1984) the Florida

Supreme Court related:

We therefore find that the trial court

erred and that the error prejudiced

appellant's right to a fair trial. We hold

that in a capital case, after the jury's

deliberations have begun, the jury must be

sequestered until it reaches a verdict or is

discharged after being ultimately unable to

do so. A Sevaration of the jurors after

commencement of deliberations will generally

be grounds for a mistrial, save for

exceptional circumstances of emergency,

accident, or other special necessity. Such a

23

~~

strict rule appears to be necessary in order

to keep the attention of the jurors properly

focused and concentrated on their

deliberations.

In so ruling the Court relied on the decision and reasoning

of Raines v. State, 65 So.2d 558 (Fla. 1953). In Raines, the

prevailing law in Florida at the time of this trial in 1981, the

court allowed the jurors to separate and go to their homes for

the night after they had begun deliberations. The case had been

fully submitted to the jury and the jury had deliberated for one

and one-half hours prior to separation. The Raines court ruled

that it was prejudicial error to let the jurors separate for the

one night.

It is crucial to note that the Court in Raines was not

concerned with whether counsel had objected nor with any

requirement that actual prejudice be shown to obtain relief.

There was no objection raised when the jury

was dispersed, nor were counsel consulted.

There is no showing in the way of evidence

that defendant's rights were prejudiced but

trials should not be conducted in a way that

defendant has good reason for the belief that

he was deprived of fundamental rights. The

opportunity was open for tampering with the

jury and the temptation to do so was such

that we are not convinced that the

appellant's trial was conducted with that

degree of fairness and security that the bill

of rights contemplates. A fifteen hours

absence under no restraint whatever leaves

too much room to question the bona fides of

everything that took place during that time .

- « It imposes too great a burden on the

defendant to produce evidence of prejudice to

his rights under such circumstances. We

think this error calls for reversal.

€5 So.2d at 559-60.

Raines was based on an interpretation of Sections 919.01(1)

and (2), Florida Statutes (1953) provisions which are now

contained in Fla.R.Crim.Pro. 3.370 (1975). As analyzed by the

Court in Livingston and Raines the statutes and rule do not

contemplate that jurors should separate during deliberations. In

addition, the Court noted that Section 918.06, Florida Statutes

(1979) which provides the court with discretion to either

sequester the jury or allow them to separate when they leave the

jury box does not specifically allow for a sequestration during

24

deliberations. The Court found "there is no specific authority

by statute or rule for the action of the trial court judge.”

The Livingston Court highlighted the danger in allowing

jurors to disperse after beginning deliberations by referring to

the reasoning and language of the Raines Court.

"...to allow the jurors to disperse for a

weekend after they have begun their

deliberations raises serious questions about

their ability to reconvene and resume

deliberations completely free from outside

influences. Even in the trial of a

noncapital felony, the separation of the jury

prior to the rendering of the verdict has

been recognized to be an irregularity which

may call for the granting of a new trial.

Smith v. State, 40 Fl.a 203, 23 So. 854

(1898). It should be noted that Smith, a

noncapital case, was decided before the

advent of electronic communications and

entertainment in the home on a mass basis.

In the instant case, the court gave

admonitions to the jurors before the weekend

recess and examined them prior to the

resumption of deliberations on Monday.

However, the issue in this case is whether

the weekend recess in the midst of

deliberations rendered the jurors so

susceptible to the operation of improper

influences as to have been reversible error

even with admonitions before and voir dire

after the recess. The Raines decision

recognized that some situations carry such an

inherent danger of improper influence that

courts should remedy the error without

requiring the accused to show that any such

improper influences actually operated upon or

affected the jury. More recent decisions

have properly applied this principle and

illustrate its continued validity. Armstrong

v. State, 426 So.2d 1173 (Fla. 5th DCA 1983);

McDermott v. State, 383 So.2d 712 (Fla. 3d

DCA 1980); Kennick v. State, 107 So.2d 59

(Fla. lst DCA 1958).

The Raines decision and the applicable Florida Statutes

clearly defined the state of the law in Florida in 1981, when the

trial in the instant case took place. In addition to Plorida,

several other jurisdictions had also, by 1981, established

through statute, court rule and common law that a jury

separation, “especially in capital cases and where the defendant

objects, is prejudicial error. ..." See e.g., Kimoktoak v.

State, 578 P.2d 594 (Alaska 1978); Hughes v. State, 437 A.2d 553

(Del. 1981); Mason v. State, 239 Ga. 538, 238 S.E.2d 79 (1977);

People v. Ritzert, 17 I1l1.App.3d 791, 308 N.E.2d 636 (1974);

Bales v. State, 418 N.E.2d 215 (Ind. 1981); Walker v. state, 410

25

N.E.2d 1190 (Ind. 1980); White v. Maxwell, 174 Ohio St. 186, 187

N.E.2d 878 (1963); Gibson v. State, 512 P.2d 1399

(Okla.Crim.App.1973); Gonzalez v. State, 593 S.W.2d 288 (tenn.

1980); O'Neil v. State, 642 S.W.2d 259 (Tex.Crim.App.1982); State

v. Smalls, 99 Wash. 2d 755, 665 P.2d 384 (1983). Livingston, 458

So.2d at 238 (citing cases).

The Livingston Court, in addition to utilizing the language

of Raines, also adopted the reasoning of the Supreme Court of

Washington:

"Jurors might be subjected to any number of

prejudicial influences whenever the jury is

allowed to separate. A juror allowed to

return to his home overnight might be

prejudiced by any of the myriad influences on

his life. who can say iow a juror might be

influenced by contact with his family and

friends, or exposure to the various news and

entertainment media during an evening at

home?

In our opinion, jurors are especially

sensitive to prejudicia) influence during

Geliberations. While still hearing evidence,

it is probably easier for jurors to keep an

open mind. Moreover, the impact of

potentially prejudicial influences will be

Gissipated by subsequent evidence, the

arguments, and instructions. But when the

jurors have heard all the evidence, and have

been focused onto the issues before them

by the arguments of the parties and

instructions, the potential for prejudice

increases substantially.

»»-A chance remark by a juror's spouse or a

program watched on television during the

juror’s 12 hours at home would have more

immediacy than the evidence. There is a very

real possibility that the juror's

recollection of the evidence or perception of

it might be distorted by such influences

received subsequent to the conclusion of the

evidence.

Of course, it is usually impossible to

determine whether such influences actually

prejudice a juror against the defendant in a

particular case. The juror himself may well

be unaware of the subtle influences which

affect his decision. For this reason,

admonition and instruction of the jury is

probably ineffective in ameliorating the

prejudicial effects of separation during the

Geliberations. Por this reason also, the use

of juror affidavits to prove a probability of

prejudice is of dubious value; a juror cannot

swear to being prejudiced by influences of

which he is unaware.

State v. Smalls, 99 Wash.2d at 765, 665 P.2d

at 390-91.

Livingston, 458 So.2d at 238, 39.

26

There is no question but that the right of defendant to a

fair trial, a trial by an impartial jury, is a fundamental right

guaranteed by the Sixth Amendment to the United States

Constitution and Article I, section 16 of the Plorida

Constitution. Mr. Johnson was denied these rights during his

trial. This was a highly publicized case with television cameras

in the courtroom at all times. Defense counsel timely objected

to the jury separation by requesting sequestration specifically

on the advice of appellate counsel who was present at the time,

although the Raines decision did not even require this. [See

Aff., Ex. }. Notwithstanding motions for sequestration,

the court ignored the danger of separation. The court cited no

emergency, accident or other special necessity that would have,

at least, given some justification for separation. The court's

only reason for the separation was that it did not want to

inconvenience the jurors. This is no justification for depriving

Mr. Johnson of his right to a fair trial and impartial jury. Mr.

Johnson was deprived of his rights under both the United States

and Florida Constitutions and should be granted a new trial.

Appellate counsel's utter failure to address this properly

preserved issue on direct appeal, especially in light of this

Court's later decision in Livingston, demonstrates both his

ineffectiveness as counsel and the highly prejudicial nature of

this omission. The error is of such fundamental proportion that

the Court should address the issue directly even if it finds

appellate counsel was not ineffective for omitting it.

2. Death Qualification of Capital Jurors

Mr. Johnson's trial counsel challenges the death

gualification of this jury by pretrial motion and specifically

objected to the exclusion of jurors on the precise ground well

before the Supreme Court in Lockhart v. McCree.

Appellate counsel's failure to discuss this issue on direct

appeal, despite trial counsel's preservation of the record below,

constitutes ineffective assistance of appellate counsel. This

Court should stay Petitioner's execution pending the Supreme

27

Court's ruling in Lockhart.

3. Admission of James Smith's testimony re: Petitioner's

violen ntentions

Appellate counsel was also ineffective in failing to raise

on appeal the trial court's admission of certain testimony

provided by witness James Smith during Petitioner Johnson's

trial, although the issue of admissibility had been raised and

properly preserved below.

Witness Smith was an inmate in the same institution as Mr.

Johnson during January, February, and March, 1981. [Tr. 1108).

During that period of time, with the encouragement of agents of

the state, [Tr. 1121 ff. passim), Smith engaged Mr. Johnson in

several conversations concerning the homicides involved herein.

{Tr. 1120). After testifying to the substance of conversations

the witness claimed to have had with Mr. Johnson directly

concerning the three homicide victims, Smith was questioned as

follows:

Q. Did he mention going to the hospital or

what he would do if he could go to the

hospital?

A. Yes.

Q. What?

[Tr. 1117]. At that point, Defendant's trial counsel objected on

the grounds of relevancy; the Court overruled the objection.

{Tr. 1118].

The question was restated with the following response:

Q. What did he say about going to the

hospital?

A. If they sent a little cop, he knew he

could take his gun, if he took that big son-

of-a-bitch's gun in Lakeland, and he would be

home free then.

Q. What did he say about the hospital?

A. He said if they sent a little deputy with

him to take him to the hospital, if he could

take that big dude's gun in Lakeland, he

could take that little one's and he'd be home

free.

{Tr. 1118).

Defense counsel asked to make a motion outside the presence

of the jury; the Court deferred argument until after cross-

examination of Smith. {Tr. 1219]. At the conclusion of Smith's

28

testimony, defense counsel moved for a mistrial:

MR. SHEARER: Yes, Your Honor, I'd like to

make a Motion for Mistrial at this time on

——— the ground that Mr. James Smith was permitted

over objection to testify to alleged

statements of the defendant Paul Beasley

Johnson about some allegations as far as what

he was going to do or would like to do

regarding criminally violent offenses wholly

unrelated to the charge in this case.

To remind the Court, Mr. Smith was allowed

to testify that Mr. Johnson supposedly said

if he ever got to the hospital, he would take

another deputy's gun away from him, try to

escape, something of this nature. This is

evidence or testimony allegedly that the

Defendant made statements regarding another

or subsequent offense regarding escape,

assault on a police officer, resisting

arrest, totally irrelevant to the case at bar

and prejudicial to the defense and automatic

grounds for a mistrial.

(Te. 1132).

The Court denied the motion for mistrial. [Tr. 1132].

Despite trial counsel's preservation of this error below,

appellate counsel failed to raise or argue the matter on direct

appeal.

The admission of Smith's testimony as to Mr. Johnson's

alleged intention to commit other, future violent crimes

constitutes fundamental error. In the first place, the testimony

in question, while highly prejudicial, is simply irrelevant.

F.S. 90.401 defines relevant evidence as "evidence tending to

prove or dispute a material fact." What Mr. Johnson said about

his future intentions -- which in fact were never carried out nor

criminally charged -- is simply irrelevant to the criminal

prosecution in this cause. However, the introduction of such

evidence was extremely prejudicial to Mr. Johnson in that it

tended to show a general predilection for violence and for

criminal behavior quite outside the scope of the indictment. In

addition, such testimony could not fail to color the jury's

deliberations during the penalty phase of Mr. Johnson's trial,

because it tended to impugn Mr. Johnson's character in general

terms, and because it suggested that any penalty short of a death

sentence might result in an effort to escare.

Secondly, the testimony in question is directly analogous to

29

"Williams Rule" evidence, in that it involved allegations of

"other criminal activity” introduced improperly in this case,

solely for the purpose of showing Mr. Johnson's bad character,

propensity for violent crime, and intention to escape.

In the usual case, if Williams Rule evidence is properly

admissible as to collateral crimes because of a strong element of

similarity between the crime charged and the collateral crime, a

limiting instruction is sought and given to minimize the

prejudicial effect of the collateral evidence. In this case,

where the "crimes" discussed never happened, and were totally

irrelevant in all respects, trial counsel did all he could to

preserve the error, by moving for a mistrial. Had appellate

counsel raised the issue and argued it, the conviction would have

been reversed. Rivers v. State, 425 So.2d 101 (lst DCA

1982); Townsend v. State, 420 So.2d 615, (Fla. 9th DCA 1982);

Dixon v. State, 426 So.2d 1358 (Fla. 24 DCA 1983).

Panzavecchia v. Wainwright, 658 F.2d 337 (5th Cir. 1981),

held that, where the jury heard constant reference to the

defendant's criminal past without any limiting instruction to

apply such evidence only to a particular charge, such lack of

instruction was prejudicial error, and

rose to such a level as to make the

petitioner's trial fundamentally unfair and

in violation of the Fourteenth Amendment.65

Panzavecchia, 658 F.2d at 341 (emphasis added). This

same passage was emphasized and quoted in United States

v. Silva, 745 F.2d 840 (4th Cir. 1984). Both

Panzavecchia and Silva deal with improper joinder of

offenses, rising to the level of constitutional error. In Silva,

the court further stated that the prejudicial effect of

introduction of a defendant's prior conviction can be avoided

through the proper use of a limiting instruction. In Silva, the

trial judge repeatedly charged the jury to consider a particular

conviction only for the purposes of one charge. No such

instructions, which might have alleviated the prejudicial effect,

were possible in this case.

30

Florida Statute 90.404(2)(b)(2) specifically states that

"[a)fter the close of the evidence, the jury shall be instructed

on the limited purpose for which the [Williams Rule] evidence was

received and that the defendant cannot be convicted for a charge

not included in the indictment or information."

To allow evidence of crimes not included in the indictment

would permit the state to fail to meet the preliminary

requirements of this statute. This rule was announced in order

to prevent abuse in presenting testimony. See Fla. Stat. 90.404,

Sponsor's Notes. In Mr. Johnson's case, permitting testimony

concerning his alleged intentions to commit other, future violent

crimes -- never charged in any indictment or information because

they never occurred -- is an even more egregious error.

Appellate counsel's failure to raise this potentially reversible

issue on direct appeal therefore constitutes ineffectiveness and

must be redressed by this Court.

CONCLUSION

Obviously, this court cannot search every record on appeal

in every capital case for error. Where the points omitted would

have, as we have demonstrated, resulted in reversal, appellate

counsel's failure reaches the level of constitutionally

ineffective assisvance of counsel, and Petitioner's convictions

and sentences must be vacated. Even if this Court finds no

ineffectiveness as to Point 1, the fundamental nature of the

error requires reversal.

Respectfully submitted,

LARRY HELM SPALDING

Capital Collateral Representative

STEVEN H. MALONE

Assistant Capital Collateral

Representative

Univ. of So. Fla. - Bayboro

140 7th Ave. So., RM COQ-216

St. Petersburg, PL 33701

(813) 893-9186

By:

Counsel for Defendant

31

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing was delivered by hand to Mr. Robert J. Crauss,

Assistant Attorney General, Office of the Attorney General, Suite

804, Park Trammell Building, 1313 Tampa Street, Tampa, FL 33602,

this day of Pebruary, 1986.

Attorney

32

Co ot

Supreme Court of Florida

MONDAY, FEBRUARY 17, 1986

PAUL BEASLEY JOHNSON,

Petitioner,

Vv. CASE NO. 68,319

LOUIE L. WAINWRIGHT, etc.,

Respondent.

** +4 28 *# 4+ 4% + %

zseekeekekexkk*kreke®s#s# *

The Application for Stay of Execution is granted and

the execution of Paul Beasley Johnson is hereby stayed pending

further order of this Court.

cc: Steven H. Malone, Esquire

Robert J. Krauss, Esquire

‘Hon. Bob Graham, Governor

Superintendent Richard Dugger

PAUL B. JOHNSON,

Vv.

LOUIE L. WAINWRIGHT, Secretary,

Department of Corrections,

State of Florida,

IN THE SUPREME COURT OF FLORIDA

Petitioner,

Respondent.

RESPONSE TO PETITION FOR EXTRAORDINARY RELIEF AND A

WRIT OF HABEAS CORPUS

JIM SMITH

ATTORNEY GENERAL

ROBERT J. KRAUSS

Assistant Attorney General

1313 Tampa Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

COUNSEL FOR RESPONDENT

A. THE GRIGSBY CLAIM

Petitioner relies on the pendency of Grigsby v. Mabry,

758 F.2d 226 (8th Cir. 1985), cert. granted sub nom Lockhart

v. McCree, 38 Cr. L. 4030 in support of his request for a stay

of execution and a new sentencing hearing. The question

presented to the court in Lockhart is the constitutionality of

excluding from a capital jury those persons who could not

inpose a sentence of death under any circumstances.

Respondent respectfully submits this challenge to the capital

sentencing procedure must fail when viewed in light of the

Supreme Court's earlier decisions in both Witherspoon v.

Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968),

and Wainwright v. Witt, 469 U.S. » 105 §$.Ce. ae

L.Ed.2d 841 (1985).

In Witherspoon v. LIllinois, supra, the Court was

concerned with the constitutionality of excusing for cause

veniremen who have scruples against the death penalty. The

court in essence held a venireman cannot constitutionally be

excused for cause if he simply voices a general objection, for

religious or other reasons, to capital punishment. The court

went on to say:

“And a prospective juror cannot’ be

expected to say in advance of trial

whether he would in fact vote for the

extreme penalty in the case before hin.

The most that can be demanded of a

venireman in this regard is that he be

willing to consider all of the penalties

provided by state law and that he not be

irrevocably committed, before the trial

has begun, to vote against the penalty of

death regardless of the acts and

circumstances that might emerge in the

course of the proceedings."

(Text at 20 L.Ed.2d p. 785)

Thus, Witherspoon, says a venireman can be excused for cause

if he could not under any circumstances impose a sentence of

death. That prospective juror is saying he could not follow

the law since the death penalty is a part of the law.

This interpretation of Witherspoon was affirmed in

Wainwright v. Witt, supra. The court outlined the proper test

to be applied in determining whether a prospective juror could

be excused for cause based on his views on the death penalty.

The Supreme Court concluded that the standard is whether his

views would prevent or substantially impair his performance as

a juror. A juror is sworn to follow the law as given to it by

the court. The law as given to the jury in a capital

sentencing in Florida includes a directive of determining if

any of the statutory aggravating circumstances’ exist;

existence of at least one such circumstance is a prerequisite

to imposition of a sentence of death. Next the jury is told

if aggravating circumstances are found, they must determine if

there are mitigating circumstances and, if so, they must

further decide if the mitigating circumstances outweigh the

aggravating circumstances. A prospective juror who says under

no circumstances could he impose death has. told the court he

could not follow the above procedure. .

The procedure of excusing for cause persons who could

not impose a sentence of death under any cirucmstance does not

differ constitutionally from excluding persons who would

automatically vote for death in a first degree murder case.

Both prospective jurors have made it clear they could not

follow the law. Yet, there has been no suggestion that the

State is entitled to keep such people as also representing

another "fair cross section" of the community. Are we to have

yet another set of alternate jurors who can sit through the

guilt/innocence phase but must be excused from sentencing

because they would automatically vote for death?

B. SECOND GROUND FOR RELIEF

As his second ground for relief, Petitioner asserts

that he was denied the effective assistance of appellate

counsel. The United States Supreme Court has recognized that

there is a constitutional right of effective assistance of

counsel on the first appeal as a matter of right. Evitts v.

Lucey, 469 U.S. _—,_- 105 S.Ct. 830, 83 L.Ed.2d 821 (1985).

However, even though there is a constitutional right to

receive effective assistance of appellate counsel, there is no

constitutional duty to raise every non-frivolous issue.

Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987

(1983). The failure of appellate counsel to brief issues he

reasonably considers to be without merit is not ineffective

assistance of counsel. Alvord v. Wainwright, 725 F.2d 1282,

1291 (llth Cir.), cert. denied, 105 S.Ct. 355 (1984). An

examination of those claims Petitioner now asserts should have

been raised on direct appeal by appellate counsel reveals

that, indeed, appellate counsel rendered reasonably effective

assistance cf counsel. The instant case is inapposite to this

Honorable Court's decision in Wilson v. Wainwright, 474 So.2d

1162 (Fla. 1985). In Wilson, this Court determined that

appellate counsel's performance therein was so deficient as to

undermine confidence in the fairness and correctness of the

appellate result. Sub judice, there is no doubt as to the

fairness and correctness of this Court's decision in Johnson's

direct appeal.

l. Permitting the jury to separate during

deliberations.

Petitioner claims that he was denied the effective

assistance of appellate counsel where appellate counsel did*

not raise an issue concerning whether the trial court erred by

permitting the jury to go home overnight after submission of

the case to the jury for deliberation. In his petition at

page 27, Petitioner acknowledges that the objection made by

-3-

defense counsel to the jury separation was done so on the

advice of appellate counsel who was present at the time.

Thus, this is not an issue which appellate counsel was unaware

of. Therefore, the question becomes whether Petitioner was

denied the effective assistance of appellate counsel by virtue

of the non-inclusion of this claim in Petitioner's direct

appeal.

In support of his proposition, Petitioner relies upon

the decision rendered by this Honorable Court in Livingston v.

State, 458 So.2d 235 (Fla. 1984). In Livingston, this Court

established a "strict rule'' that in a capital case the jury

must be sequestered after its deliberations have begun. This

case, of course, was rendered subsequent to the decision of

this Court in Johnson. Therefore, it is necessary to review

the law as it existed at the time of Johnson's trial in order

to determine whether appellate counsel was ineffective for

failure to raise this claim on direct appeal.

The question of sequestration of the jury after jury

deliberations had begun was first discussed in this Honorable

Court's decision of Raines v. State, 65 So.2d 558 (Fla. 1953).

In Raines, as in the instant case, the trial court permitted

the jurors to go home overnight after deliberations had begun.

However, unlike the instant case, no judicial instructions

were given as to communicating with others. This Court

concluded that a 15 hour absence under no restraint whatever

are circumstances sufficient to release a defendant from his

burden of producing evidence of prejudice. Raines, Id. at

560. In the instant case, however, the trial court more than

adequately instructed the jurors not to communicate with each

other, with. a spouse or other family members, or with friends.

The jury was further admonished not to read anything or do

anything outside the jury room concerning the trial (R.1598-

1599). Upon the jury's return early the next morning, the

Court inquired as to whether any of the jurors had seen or

heard anything which could influence their deliberations

—

(R. 1603-1604). Thus, it is clear that the trial court's

activities sub judice materially differ from the circumstances

presented in Raines where no instructions as to communication

were given. ‘

Inasmuch as Raines is materially distinguishable from

the facts presented in the instant case, it is clear that

appellate counsel was not ineffective for failing to raise

this point as a claim on appeal. As noted above, appellate

counsel was responsible for directing defense counsel to

object to the failure to sequester the jury. It is

unreasonable to assume anything other than that appellate

counsel was aware of the issue but chose not to raise same for

good reason. The decision to not raise this claim is

supported by this Honorable Court's decision in Engle v.

State, 438 So.2d 803 (Fla. 1983), a case decided one month

after the direct appeal in Johnson. In Engle, this Honorable

Court noted the distinctions between the case before it and

the decision in Raines:

[3] The facts in the case sub judice are,

however, distinguishable from those in

Raines. . . Furthermore, prior to their

separation for the evening, the trial

judge admonished the jury to neither

discuss the case with outsiders, nor read,

watch, or listen to any media reports

thereon. Unlike in Raines, we are here

convinced that appellant's trial was

conducted with that degree of fairness and

security that the bill of rights

contemplates, and do not believe that he

has good reason to believe that he was

deprived of any fundamental rights.

(Emphasis in original)

Engle, at 808. Although the court in Engle notes that trial

counsel agreed to the separation of the jury during

deliberations, unlike the instant case where a motion to

sequester was made, this Court nevertheless relied upon the

fact that the jury was properly admonished by the trial judge

as to not being influenced by outside sources. Thus, inasmuch

as Raines was notable for the lack of trial court instruction

as to communication with others, appellate counsel sub judice

could not be considered ineffective for the failure to raise,

at best, a colorable issue. Appellate counsel cannot be held

to the standard of attempting to predict a future decision of

this Court (Livingston) and, in fact, had this issue been

raised it is clear that it would have failed based upon this

Court's decision in Engle rendered during the same period of

time as was the Johnson decision.

There is no language in Livingston to indicate that the

rule announced therein would be applied retroactively. Thus,

although Petitioner now asserts that this court should, if it

finds that appellate counsel was not ineffective, consider the

claim on its merits, such a result cannot obtain because of

the doctrine of finality. This Honorable Court and the United

States Supreme Court have consistently adhered to the finality

doctrine. For example, in State Farm Mutual Automobile

Insurance Company v. Judges of the District Court of Appeal,

Fifth District, 405 So.2d 980 (Fla. 1981), this Honorable

Court stated:

All things must have end, even a

district court's power to correct

inconsistencies. The reasons for this

form the bedrock oof Anglo-American

jurisprudence: "There must be an end of

litigation. Public policy, as well as the

interests of individual litigants, demands

it, and the rule just announced is

indispensable to such a consummation."

(citations omitted) (Text at 982)

Similarly, the United States Supreme Court has expressed its

concern that the doctrine of finality be adhered to:

2 Our trial and appellate procedures

are not so unreliable that we may not

afford their completed operation any

binding effect beyond the next in a series

of endless post-conviction collateral

attacks. To the contrary, a final

judgment commands respect.

[6] For this reason, we have long and

consistently affirmed that a collateral

challenge may not do service for an

appeal.

United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71

L.Ed.2d 816, 828, Reh. den., 102 S.Ct. 2287 (1982).

Therefore, inasmuch as the claim presented was not a

fundamental right at the time of Johnson's direct appeal,

Engle, supra, at 808, this claim must fail at this time also.

2. Death qualification of capital jurors

Respondent submits appellate counsel! cannot be held

ineffective for failing to raise as an issue on appeal the

matter of death qualification of jurors. Although the issue

was raised before the lower court, the case law available at

the time of Petitioner's appeal demonstrates this was not a

viable issue. Both this Court and the federal courts had

rejected Grigsby - type arguments. See, Steinhorst v. State,

412 So.2d 332 (Fla. 1982); Gafford v. State, 387 So.2d 333

(1980); Jackson v. State, 366 So.2d 752 (Fla. 1978); Riley v.

State, 366 So.2d 19 (Fla. 1978); Smith v. Balkcom, 660 F.2d

$73 (56h Cie. 1981); Spinkellink v. Wainwright, 578 F.2d 582

(Sth Cir. 1978).

Counsel cannot be held ineffective for failing to raise

an issue he reasonably believed would not entitle the

defendant to any relief on appeal. Cf. Jones v. Barnes,

supra.

3. Admission of James Smith's testimony re:

Petitioner's violent “intentions”

As his final contention regarding whether appellate

counsel was ineffective, Petitioner asserts that certain

testimony at trial dealt with "future crimes" so as to reveal

to the jury Johnson's general predilection for violence. At

trial, defense counsel moved for a mistrial (R.1132). The

trial court denied that motion (R.1132). The testimony in

question occurred during the direct examination of State

witness, James Smith. Smith's testimony which is relevant to

the instant claim as set forth as follows:

Q. What did he say about going to the

hospital?

A. If they sent a little cop, he knew he

could take his gun, if he took that big

son-of-a-bitch's gun in Lakeland, and he

would be home free then.

* * *

Q. What did he say about the hospital?

A. He said if they sent a little deputy

with him to take him to the hospital, if

he could take that big dude's gun in

Lakeland, he could take that little one's

and he'd be home free.

For the reasons expressed below, appellate counsel was not

ineffective where he did not argue this claim on appeal.

It must be observed that defense counsel, although

moving for mistrial, never did ask for a curative instruction.

A motion for mistrial should never be granted in a midst of a

criminal tvrial unless there is an absolute necessity to stop

the trial and discharge the jury. Williams v. State, 354

So.2d 112 (Fla. 2d DCA 1979); Dunn v. State, 341 So.2d 806

(Fla. 3d DCA 1977); Kelly v. State, 202 So.2d 901 (Fla. 2d DCA

1967). The proper procedure to follow when remarks are made

that are not by their very existence of such an inflammatory

nature as to deny a fair trial is to object and move for

curative instructions. A mistrial is the remedy when the

corrective instruction is denied or inadequate, or when the

offense is repeated. Mabry v. State, 303 So.2d 369 (Fla. 3d

DCA 1974), cert. denied, 312 So.2d 756 (Fla. 1975). The

granting of a motion for mistrial is a matter within the sound

discretion of the trial court. Ballard v. State, 323 So.2d

297 (Fla. 3d DCA 1975); Sweetser v. State, 258 So.2d 287 (Fla.

3d DCA 1972); Reis v. State, 148 So.2d 656 (Fla. 3d DCA 1971).

In the instant case, it is clear that Smith's testimony

was not offered to show the bad character or propensity of the

defendant to commit the crime charged. Rather, the statements

of Johnson as testified to by Smith are corroborative of

Johnson's other confessions insofar as deputy Burnham's murder

is concerned. In other words, the statements now objected to

by Petitioner relate to and are concerned with statements of

Johnson admitting to facts surrounding the murder of Burnhan.

As such, this testimony is certainly relevant as being

evidence tending to prove or dispute a material fact. By

concerning himself with the "little cop", Petitioner ignores

the major substance of the testimony, that is, Johnson's

admission that during his murder spree he managed to take

deputy Burnham's weapon.

The testimony of Smith obviously did not deal with

Williams Ruie testimony in that the Williams Rule addresses

the question of the relevancy of past criminal conduct. Any

discussion as to future intended crimes is purely speculative.

Also, had we been dealing with Williams Rule type evidence,

inasmuch as the testimony of Smith does not establish all the

elements of a crime, the question of admissibility of prior

criminal acts would not be present. See Malloy v. State, 382

So.2d 1190 (Fla. 1979). Nevertheless, the State asserts that

the statements of Johnson as related by Smith were properly

admitted as relevant to establish the fact that Johnson

obtained Burnham's~ gun. This confession was. properly

admitted.

Inasmuch as no curative-type instruction was requested

by trial counsel, and inasmuch as this issue is colorable at

best, appellate counsel was not ineffective for not raising

this claim on direct appeal.

CONCLUSION

Based upon the foregoing reasons, arguments. and

authorities, the Petition for Extrordinary Relief and a Writ

of Habeas Corpus should be denied. The United States Supreme

Court will resolve the Grigsby claim and a review of the

record and the brief filed on behalf of Petitioner by

appellate counsel reveals that Petitioner received effective

assistance of appellate counsel.

Respectfully submitted,

JIM SMITH

ATTORNEY GENERAL

ROBERT J.

Assistant Attorney General

1313 Tampa Street, Suite 804

Park Trammell Building

Tampa, Florida 33602

(813) 272-2670

PEGGY A. (QUIN

Assistant Attorney General

COUNSEL FOR RESPONDENT

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing has been furnished by U. S. mail to Steven H.

Malone, Assistant Capital Collateral Representative,

University of South Florida - Barboro, 140 7th Avenue, South,

Room CO0Q-216, St. Petersburg, Florida 33701, this 2, day

of February, 1986.

-10-

wha

DEPARTMENT OF LEGAL AFFAIRS f€g . =

OFFICE OF THE ATTORNEY GENERALCLED,

THE CAPITOL jj

TALLAHASSEE, FLORIDA 32304 = “Cur

February 21, 1986 Park 2 c=

1313 Tampa Street, Suite 804

Tampa, Florida 33602

Honorable Sid White, Clerk (813) 272-2670

Supreme Court of Florida

Supreme Court Building

Tallhassee, Florida 32304

RE: PAUL B. JOHNSON v. LOUIE L. WAINWRIGHT, Secretary

Department of Corrections, State of Florida

Capital Case:

Dear Mr. White:

Enclosed please find an original and seven copies of

the Response to Petition For Extraordinary Relief and

Writ of Habeas Corpus for filing.

Respectfully submitted,

JIM SMITH

ATTORNEY GENERAL

Bast Essa

ROBERT J. KRAUSS

Assistant Attorney General

cc: Steven Malone