Appendix — Bush v. Singletary
Supreme Court brief1994
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Text
OCTOBER TERM, 1993
IN THE
SUPREME COURT OF THE UNITED STATE
U
Case No. §$3-6431 FILED
JOHN EARL BUSH, OFFICE OF THE CLERK
Petitioner,
‘
V.
HARRY K. SINGLETARY, secretary,
lorida Department of Corrections,
rey
Respondent.
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
A. = — —
A - Bush v. Singletary, 988 F.2d 1082 f2czGa Car. 20932.
B - Petition for Rehearing and Suggestion for Rehearing En Banc,
Bush _v. Singletary -- excerpts (discussion of issues from
petition).
C - Bush v. Singletary, Order of the Court of Appeals denying
rehearing and en banc review (July 20, 1993).
D- Bush _v. Singletary, Order of the Court of Appeals staying
mandate pending certiorari review (August 9, 1993).
E- Bush v. State, 461 So. 2d 936 (Fla. 1985).
F - Bush v. Wainwright, 505 So. 2d 409 (Fla. 1987).
G- Bush v. Dugger, 579 So. 2d 725 (Fla. 1991).
H - Bush v. Dugger, Order of the United States District Court for
the Middle District of Florida.
Auwysll
1082
C 3, FEDE AL, RE Ȣ
x FEDER PO
RTER, 2d SERIE
for these reasons | re
dict the legal consequent
wor and W “facihtall Lr planning
nd to encourage tne
of their ac
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Vi
set
{rom Une
Case en
court
bam
. geci
yOn
primary activity anG
of dis putes withou
{ resor
{ Ww the
tlement
Moragre, 39d \
courts
S.Ct. at 17389
In Admirals Cove
panel held that when an
within the meaning of sect!
property owner cannot den
easement 835 F.2d at
White tr affirmed this holding
Since both holdings addressed pri
the panel was bound Lo
g08-UY
vate easements,
follow them Because it
have two rules of law in
cerning the proper constr
S. ut 403, YY
an blev enth Circuit
easement falls
on 621(aX2), the
y acces= to that
1362. Thos J
9092 F.2d at
did not, we © yW
this circuit co!
uctiol of sectiO
nts (and to mec)
621(aX2) To potential hugane
tnis circuit interpretauion ol seco!
62 (ane) ce nfuseda
tne Cable Act
by Supreme Court pr
pphed the canon of statut
First, the
ecedent that clearly
there were tnret
should not have
vory constru' ul
val construcuion of
panel was boul
not unconst
HAT‘ HETT, \'F sit
| dissent fron
hearing er bam
ANDERS‘ WN. Circul
KRAVITCH Circuit Jud
dissenung
Respectfully | dissent
not W renear tn ast
spect! U
’
nor. re
John Ear! BUSH Pe
Vv
Harry / SINGLETARY
Florida Department of 4
stithoner~
Respondent Appelle
No. 39-4051
establis!
tutional
vide for
eS that statutes ar?
because they do not explicitly pro
just compensation, yet
the pane!
misunderstanding dictat
jurisprudence, sought
anconstitutional constru
es of the Courts
, avoid an illusory
cuon Second tre
App*
ve
panel was bound by Thos. J White's and Following aftirmanct of f
Admirals Cove's holdings yet the panel murder convicuion ana jealh > t
fuiled Lo adhere to them Third, to con So.2d 936, petition for writ of hat
true the Cable Act, the panel was not pus was filed in state court Tr!
required avoid its just compensation © Supreme Court, 579 50-24 *° '
eye because that issue arose solely from tion and petition for writ if habea
the district courts fashioning of equitable was filed in federal court Tt
Mid
rehef yet the panel for
uc
As | expressed in the opening parag
the first two reasons eac
of this opimon,
warrant en banc review
demonstrates how the
the very rule of const
apply, took an unnecessé
takings jurisprudence
ynd that the taking
controlled its statulory interpretauo!
rrapt
The chird reuast
panel, contrary
ruction it sought
iry excursion in
to crue} and unusual
> Suites Distr
trict of Florida. N«
3 3A, Georre c. Cart
h petitioner appealed
mn held that
Lo tor $ presentation w
to (3) defense counsel
sentencing phase
x Court for the
» BS Hooz=-‘
. J dene
The Court
punishme®
as not ™
was not
‘
a pe ut
‘
(1) sentence of deat!
t. (2)
} ;
isicav
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t
Secretar)
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lea
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suggest
tor s OV
garding
materla
1084
Criminal Law 641.1316
7
u . ee ut ‘ i
r | | el re ‘ , ,
i”. Criminal Law 641.1316
Adequacy 1s of attorney ve
at { t lant DacKkyr Ln
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nul er ey ‘ i i ‘ ‘ ‘
’ 1°
Criminal Law @641.13()
Wele ¢ J t faiiure & prese
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urder as to defendant's backgrou
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{ Criminal Law @641.105(6, |
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w lie ne e not t nve pat ¢
7 4 at a > ’ } 4
re tnoroug y. not nave dele jant €
smined by psychiatrist or psychologist, a
resent mitigating psychological ¢
e¢ at sent g hearing give wi
t Unse ould eadcil\y obser
‘ defendant. what he knew of defe
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acKy, J ing advice pSy
| A (or + Amer ‘
1
] Criminal Law €641.13(
, ’ ‘ t re “
, allu j ‘
F ‘ ry ro ,
‘ a> Apia Jsrut 4
: ‘ 1 efenda
od | t y \ Wa rea il
re was no evidence that Gelendant w
| y aly r psychologically ETC
ar at (’ y ur ier y ng lé ny yr
rder | 4 { nst Amend. ¢
16. Criminal Law @641.13(6, 7)
Defense counse: & failure lu inve
’
ny phase of capital murder
Iefondant’s int os time
lefenda intoxication at ume
’ fancd ;
was rea abie defendant ad!
ne ar K it than other par
}
gas FEDERAL REPORTER, 2d SERI:s
sent evidence during senu
use 5
ritin a 1 officer wiht pe seit
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a 1 codelenagans on } ‘ ! ‘
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4 .¥ ,
B sy H Nola Ju it
FL, for petitioner-appeliat
Celia A. Terenzio, Asst. Atty. Gen.,
I ral Allairs West Palm Beach, Fi
ix’). @
respondent-appelle
T ‘ “fT, ,
Appeal from the United States |
) | , fe y
Court for the Middle Distr F
PER CURIAM
‘ n Earl Bush, a Florida inmate "
victed of first-degree murcer ahe
ls | seul! He Tile 4 £0
§ 2254 pention challenging Doth Nis ¢
tion and | sentence The district r
jenied relief, and Bush aj We
Da lTs
‘
U April 27, 1982 Jot Earl Bust
three other men abducted Frances Silat
tron uri conveniel t tore wher
worked. Her body was found later
day, thirteen muie away she nad ve
tabbed in the abdomen and shot I
the back of her head at close range I
nvenience store’s cash register and f
had been robbed of approxima
a
$134.0 Rush was tried for the crime
2” and convicted, following a jur
f first degree murder, armed robbery 4
KIagnap} Vv
Four pretrial laped statements mudt
Bush to law enforcement authorities we
introduced at trial! the Supreme our
i
Florida described these statement
only known version of the events |
are presented Dy Bush in the light
favorable to him Bush v. State, +
So.2d 936, 937 (Fla.1984) In the
statement, Bush denied any invols
with the Slater abduction but said thal
the night in question he had givena!
E j
1086
9x8 FEDERAL REPORTER, 2d SELES
the adequucy I yunse! | it Live nad t e re le
court lenied ehel } i a ‘ ‘
‘ f at "' ‘ "
district court issued a certificate oO! ‘ R ane ‘
‘ } ) ‘ t? " , » Tee 4 ‘
i@ cause lO appeal and wi pst —e y 4 ,
‘ r ‘ r
neid procee inys if tris cour *>’) , os 4
ie T | BK r ? ' ? t I I i } | rlee ;
wevyance LO saiow »uU ) } if )¢ $Lsae , 4
proceedings in the Florida Supreme 1) Whether Mr. Bu re
T . ‘ L ;
ihe Supreme Cour of Fiorida tive ance of ins
" , ' ’
r jt ed renel bus! L/ugge ‘ ‘ ta
2d F'la.199
' " ‘ ) v¥
ISSUES ON APPI
urgues on this appeal! that the ¢
rt erred lenving reel { r
His brief articulates the issues a4
j Whether Bush's sente ‘ [| Gesu
ig , ;
constitutes crue: an unusual pu
) Whether Mr Bus! sentence
ment because the stale courts dic
onsululs rue ing unusua J
make a finding of his individual cu
> } +} tat rt Lia
f ecause Une au irk }
bility sufficient to sa 1¥ ne Rig
P { Ae com bh ; ;
i! ing hv i "
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‘ ‘ ta ‘ y ¢ e wa pres 4 " fact reyarding Muscl sleyy i .
: eo , ‘ , 7 f thy ry rder \ any
il4 Dla ng i y rt descrilt \ ; "
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‘ Ave Gdid I pres iny evide r As ‘ sOMiCG race “ ou |
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ir; A iggest that Bush was th hid i hi in FA.20 , with Mu “
ty . ! wer “ : =
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RUSH ¥
Cite as ORR F 2d
1oOn?
SINGLETARY
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STATEMENT OF COUNSEL ANP STATEMENT
OF THE ISSVES/OUESTIONS PRESENTED
Counsel express 4 belief, based upon a reasoned and studied
professional judgment, that the panel decision is contrary to the
decisions of the United States Supreme Court and the United States
Court of Appeals for the Eleventh Circuit which are listed below,
and that consideration by the full Court is necessary to secure and.
maintain uniformity of decisions and an application of precedent in
conformity with the standards of the United States Supreme Court
and this Circuit. Counsel also express a belief that the issues
presented involve important questions whose resolution by the full
Court shall aid ir. maintaining uniformity of the decisional law of
this Circuit and conformity with the decisional law of the United
States Supreme Court.
I. As to the issue presented in section I;
Appellant respectfully submits that the decision of the panel
majority on Nis claim of ineffective assistance of counsel at
capital sentencing is in conflict with the precedent of this
Circuit in cases such as Blanco v. Singletary, 943 F.2d 1477 (11th
Cir. 1991); Horton v, Zant, 941 F.2d 1449 (llth Cir. 1992); Harris
ys Dugger, 874 F.2d 756 (lith Cir. 1989); Blake v. Kemp, 758 F.2d
523 (11th Cir. 1985); Cunningham vy, Zant, 928 F.2d 1006 (11th Cir.
1991); Middleton v. Dugger, 849 F.2d 491 (11th Cir. 1988); Btephens
vy. Kemp, 846 F.2d 642 (11th Cir. 1988); Porter v. Wainwright, 805
P.2d 930 (11th Cir. 1986); Magill) v. Dugger, 824 F.2d 879 (11th
Cir. 1987); and Armstrong v. Dugger, 833 F.2d 1430 (11th Cir.
1987).
As Judge Kravitch discussed in her dissent, gee Bush y,
Bingletary, No. 89-405 (11th Cir. Maroh 30, 1993) (appended at App.
A hereto), although trial defense counsel said he had a "tactic" at
the hearing, that "tactic" cannot be deemed "informed" or
"reasonable" under the established precedent of this Circuit.
Moreover, as Judge Kravitch’s dissent also discusses, although the
panel devoted little analysis to the question of prejudice, the .
panel majority’s analysis cannot be squared with the fact that this
Circuit has on numerous previous occasions "held that a failure to
present similar [and indeed, less substantial) mitigating evidence
at sentencing ... was sufficient to establish prejudice." Horton
vy. Zant, 941 F.2d at 1463. Bee also App. C (outlining the
mitigation).
As a matter of this Cirouit’s law, Appellant established that
counsel’s performance was deficient and that he was prejudiced,
The panel majority’s opinion is not only inconsistent with the
Circuit’s law, at its essence it overrules that law. Appellant
accordingly submits that rehearing and en banc review are
appropriate to resolve the conflicts between the majority opinion
in Bush and the precedent of this Circuit -- precedent embodied in
the decisions listed above and in Judge Kravitch’s dissent.
If an attorney’s asserted "tactic", even when based on
inadequate investigation and preparation, insulates that attorney
against a claim of ineffective assistance of counsel, the full
Court should say so. The panel majority’s opinion essentially
Overrules the holdings of Horton and Blanco -- each holding that
"tactice” must be informed and reasonable -- and it will affeot
future cases. The analysis of this case pursuant to the Circuit’s
pre-Bush law embodied in Judge Kravitch’s dissent (and a comparison
of that analysis to the majority’s opinion) demonstrates that
review by the full Court is necessary to maintain uniformity in the
Circuit’s decisional law.
II. As to the issue presented in section II:
Appellant respectfully submits that rehearing and review by
the full] Court are appropriate to resolve the conflict between the
panel majority’s holding and the Supreme Court’s decisions in
Zomund vy. Florida, 458 U.8. 782 (1962); Cabana yv. Bullock, 474 U.&.
376 (1966); and Tison v. Arizona, 107 &.Ct. 1676 (1987). Enrund,
Bullesk and Tison hold that a death sentence cannot be imposed on
one who does not kill, intend to kill or attempt to kill. To
effectuate this eighth amendment requirement, these Supreme Court
precedents require the state courts to find at Jeast that the
defendant vas a “major participant" and that he either intended
Geath or had a reckless indifference to human life. As the panel
majority opinion indicatos, neither the jury’s verdict nor the
Florida Supreme Court’s direct appeal opinion can be viewed as
making the requisite findings in Appellant’s case. fee Bush vy.
Bingletary (majority opinion), slip op. at 8-9, The panel,
however, denied relief by holding that the trial judge’s statement
when he rejected the statutory "accomplice whose participation was
relatively minor" mitigating factor was sufficient. Cf. App. D
(analyzing the state courts’ rulings on the issue). All that the
trinl judge said, however, was that Mr. Bush was a "participant" --
all that he found was the first part of the two-part finding which
Tisen requires. Nowhere did the jury, Florida Supreme Court or
trial judge find that Mr. Bush intended to kill, attempted to kill
or was recklessly indifferent to human life. See, £.0,, Bush
(majority opinion), slip op. at 9 (quoting trial judge’s
statement); gee also App. D (analyzing the state courts’ rulings in
this case in light of Enmund, Bulleck and Tison).
Bullock and Tison expressly hold that state court
"sufficiency" determinations -- that as a matter of accomplice law
the defendant should be held responsible -- are insufficient to
meet the eighth amendment requirement of findings of fact as to the
defendant’s mental state. In Appellant’s case, the state courts’
rulings involve no more than such a "sufficiency" determination.
The panel’s ruling is not in accord with the Supreme Court’s
precedent.
Appellant submits (complemented by tho analysis included in
App. D hereto) that the panel majority’s decision is in conflict
with the decisions of the United States Supreme Court in Inmund v.
Florida, Cabana v. Bullock and Tison v. Arizona and that rehearing
and review by the full Court are appropriate to maintain uniformity
between the decisional law of this Circuit and the law of the
United States Supreme Court.
_£ 4 My U/ A rls he 7)
COUNSEL FOR PETITIONER/APPELLANT
PROCEDURAL HISTORY
Four tape recorded statements obtained by law enforcement
officers from Mr. Bush were played during the trial. These
statements "constitute the only known version of the events ...."
Bush vy, State, 461 S0.2d 936, 937 (Fla. 1985). The statements were
to the effect that [Mr. Bush) did not realize that his
accomplices, Alfonso Cave, "Pig" Parker and Terry
Johnson, were planning to rob the convenience store, and
that during and after the robbery he was under their
domination. Bush states that after the robbery, they
drove toward Indiantown, when his accomplices ordered him
to stop. The victim was pushed out of the car and Bush
avers that he intended to set her free. However, the
accomp) ices decided that Slater might be able to identify
them and they told Bush to dispose of her. Bush, not
Gesiring to kill the victim, faked a blow at her with his
knife and stabbed her superficially. Slater fell to the
ground and an accomplice, Parker, shot her.
Bugh, 461 So.2d at 938. The testimony of the medical examiner, Dr.
Wright, confirmed that the knife wound was superficial (ROA 465)
and that Ms. Slater died as a result of the gunshot wound (ROA
471).
The jury convicted. At sentencing, defense counsel offered no
evidence in mitigation. "“"[T)jhe jury recommended, in a 7-5 advisory
sentence, that the death penalty be imposed. The trial judge,
citing three aggravating factors and no mitigating factors,
sentenced Bush to death." Bush, 461 60.24 at 938.
The convictions and death sentence were affirmed on direct
appeal. Bush v. State, 461 80.20 936 (Fla. 1985). The subsequent
history of this case was outlined by the panel. See Bush vy.
Bingletary (majority opinion), slip op. at pp. 3-6.
a
REASONS FOR GRANTING REHEARING AND EN BANC REVIEW
(I)
THE CONFLICTS BETWEEN BUSH AND THIS COURT’S
PRECEDENT ADDRESSING QUESTIONS OF INEFFECTIVE
ASSISTANCE OF COUNSEL AT CAPITAL SENTENCING
A. Introduction
"To investigate and develop available mitigating evidence is
a basic and unshakable obligation of defense counsel in all capital
cases.” Bushy, Singletary, (Kravitch, J., dissenting) at dissent
p. 1, citing Strickland v. Washington, 466 U.S. 668, 691 (1984);
Blanco v. Singletary, 943 F.2d 1477, 1500 (llth Cir. 1991); Horton
vy. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991); Middleton vy. Ducaer,
849 F.2d 491, 493 (11th Cir. 1988). As Judge Kravitch noted,
because "[rjeasonable investigation ... [is a) prerequisite for
constitutional assistance of counsel," "[w)]hen counsel breaches the
duty of reasonable investigation, even strategic or tactical
decisions regarding the sentencing phase ... must be held
constitutionally deficient." Jd. at 2, citing Horton, 941 F.2d at
1462. Judge Kravitch’s opinion is included in the appendix hereto
at App. A.
As a matter of this Circuit’s law (see Blanco, Horton, Blake,
Armstrong, Cunningham, Stephens, Middleton, Magill, lisrris, supra)
counsel breached the constitutional duty in this case. He failed
to investigate just as the attorneys in each of the cases listed
above failed to investigate. See Bush, supra (Kravitch, J.,
dissenting).
Counsel admitted at the ovidentiary hearing that he undertook
no efforts which can be deemed “reasonable” investigation or
preparation under the law of this Circuit. See App. B (analyzing
counsel’s hearing testimony pursuant to the law of the Eleventh
Circuit). As a result, a substantial body of available mitigating
evidence was not known to counsel and, consequently, not heard by
the jury and judge at sentencing. This evidence -- outlined in
detail in the materials included in Appendix C -- exceeds what has
been found sufficient to cotablish “prejudice” as a matter of this
Circuit’s law in Blance, Horton, Armstrong, Middleten, Stephens,
Harris, inter alia. See also Bush (Kravitch, J., dissenting) (App.
A): App. B, part C (analyzing the issue of "prejudice" pursuant to
thie Circuit’s law).
Judge Kravitch’s opinion and the materials appended hereto
demonstrate that under the pre-Bush law of this Circuit, counsel’s
performance could not be deemed informed or reasonable. He did not
adequately investigate and prepare. Indeed, as counsel himself
acknowledged when he testified at the hearing, this attorney had no
"tactic" for his failure to investigate. §ee@ App. B: see also App.
A. The proper development of mitigating evidence would have been
important not only for its own value, but also for the effect that
@ properly developed penalty phase case would have had on a
reasonable attorney’s decisions. See Blanco, gupra.
Given these circumstances, the pre-Bush law of this Circuit
established that counsel’s decisions could not be deemed
“reasonable”. See Blanco vy. Singletary, 943 F.2d 1477, 1500-1503
(11th Cir. 1991); Horton vy, Zant, 941 F.2d 1449, 1460-63 (13th Cir.
1991) (each holding expressly that under the law of this Circuit,
an attorney’s failure to investigate and prepare appropriately
precludes the making of choices which can be deemed "reasonable"
and that the decisions of counsel under such circumstances cannot
be deemed a “reasonable tactic" as a matter of law).
Counsel testified that the course he followed, without ~
adequately investigating in the first instance, was to present no
mitigation to support a verdict of life and he, in fact, developed
and presented no mitigating evidence (fee App. B). Given the
nature of Florida’s sentencing scheme -- that a jury recommendation
of life without a "reasonable basis" in the record such as
mitigating evidence supporting it may be overridden, Stevens v,
State, 552 60.2d 1082, 1085 (Fla, 1989) -- and given counsel’s own
testimony that there was a "consensus" and "substantial likelihoog”
that the death penalty "would be imposed [by the judge) regardless
of the jury’s recommendation” (Tr. 363) (emphasis added), counsel’s
failure to develop and present any mitigation cannot be deemed
adequate attorney performance under this Court’s law. With such a
"substantial likelihood" that death would be imposed by the judge
regardless of the jury’s verdict, it was especially important for
counsel to develop and present mitigation in order to establish a
"reasonable basis" for a life recommendation. fee porter y.
Wainwright, 605 F.2d 930, 936 (11th Cir. 1986), relied upon in
Btevens, 552 Bo. 2d at 1086-87.
Counsel’s failure to develop mitigating evidence here was
unreasonable because it was a decision that made a sentence of
death more likely, whether or not the jury recommended life;
because of the facts e)icited from him and the prosecutor at the
hearing demonstrating that there was no true rebuttal for most of
the mitigating evidence which could have been presented (gee App.
A, opinion of Judge Kravitch); and because counsel’s decision was
made without the benefit of a reasonable and adequate investigation
and development of available mitigating evidence (See App. B; see
Algo App. A, opinion of Judge Kravitch).
Given this record, Judge Kravitch’s dissent explained that the
majority’s analysis could not be sustained under the law of this
Circuit or the Supreme Court’s current eighth amendment
jurisprudence. Bush vy. Singletary, No. 89-4051 (llth Cir. March
30, 1993) (Kravitch, 3., dissenting). Judge Kravitch’s analysis of
the relevant caselaw and its application to Mr. Bush’s case
Girectly establishes that the panel majority’s decision is at odds
with this Circuit’s law. Her opinion speaks for itself with a
Clarity that would be disserved by an attempt at paraphrasing.
Judge Kravitch’s opinion is therefore appended to this petition and
incorporated herein, and Appellant respectfully refers the Court to
its analysis (App A).
B. Discussion
The pancol majority opinion stands in conflict with the law
thie Circuit has consistently applied to resolve claims of
ineffective assistance of counsel at capital sentencing. This case
involves an attorney who knew the trial judge was inclined to
impose death irrespective of the jury’s decision, but who
nevertheless undertook little effort to develop evidence in
mitigation and then presented none. Given the evidence at trial
(see Procedural History, supra) and the jury’s 7-5 vote, any effort
by counsel to present mitigating evidence could have resulted in a
life recommendation from the jury. See Blance, 943 F.2d at 1505.
Moreover, evidence such as that involved in this case (sce App. C)
would have established a "reasunable basis" for life as a matter of
Florida law, thus protecting the jury’s verdict against a judicial
override. See Porter, supra. And, as a matter of its own law,
this Circuit has held that mitigating factors such as thoso
involved in this case establish that Appellant was prejudiced. See
Blanco; Horten.
Without any presentation by counsel, however, the prosecutor
was allowed to argue for death to the jury and judge because:
"There hae been no testimony concerning the character of the
Gefendant other than the fact he was previously convicted of a
serious crime" (ROA 1279). As Judge Kravitch explained, even
"[tjaking into consideration any evidence or argument the state
might conceivably have produced in rebuttal," Stephens, supra, Mr.
Bush established deficient performance and prejudice under the law
of this Circuit. Bush (Kravitch, J., dissenting) (App. A). That
law, embodied in precedents such as Blance, Horton, Cunninghan.
Btephens, Middleton, Porter, Harris, Magill, and Blake, cannot be
squared with the pane) majority’s decision. Judge Kravitch’s
10
dissent compellingly demonstrates why.
If thie Cirouit’s law is to be altered to hold that any
"tactic" asserted by counsel, irrespective of this Circuit’s prior
cases addrossing similar ciroumstances, will insulate that lawyer
against a claim of ineffective assistance of counsel, Appellant
respectfully submits that the full Court should say so. Even under
such a standard, Appellant’s case remains a compelling one, for it
ia difficult to conceive of any attorney who would choose to put on
nothing in mitigation (and thus to present no "reasonable basis for
life") when he knows in advance that the judge is inclined to
impose death regardless of the jury’s decision. That is what
counsel "chose" to do here. And he made that "choice" on the basis
of an “investigation” that wae far from adequate or reasonable.
See Bush, (Kravitch, J., dissenting) (appended hereto at App. A).
The majority opinion changes the law of this Circuit. The
majority opinion will affect future cases presenting claims of
ineffective assistance of counsel at capital sentencing. This case
warrants the granting of rehearing and en banc review in order for
the conflicts between this decision and the decisions in cases such
a6 Elance, Horton, and the others identified above to be resolved
and in order for the en bane Court to inform practitioners and
subsequent panels of the standards under which they should operate
when evaluating claims of ineffective assistance of counsel at
capital sentencing.
11
(II)
THE CONFLICT WITH
ENMUND, BULLOCK, AND TJSON
A. Introduction
John Bush’s statements "conatitute the only known version of
the events," Bush y, State, 461 60.24 936, 937 (Fla. 1985), and
were "to the effect that he did not realize that his accomplices, |
Alfonso Cave, ‘Pig’ Parker and Terry Johnson, were planning to rob
the convenience store, and that during and after the robbery he was
under their domination." Jd. at 937-38. "[A)fter the robbery,
they drove toward Indiantown, when his accomplices ordered him to
stop. The victim was pushed out of the car and Bush avers that he
intended to set her free. However, the accomplices decided that
Slater might be able to identify them and they told Bush to dispose
of her. Bush, not desiring to kill the victim, faked a blow at her
with his knife and stabbed her suporficially.” Bush, 46) So.2d at
938. "[Ajn accomplice, Parker, shot her." Jd. The medical
examiner confirmed that the stab wound was superficia) and could
not have caused death, and that Ms. Slater died as a result of the
gunshot wound (R. 465, 471).
The eighth amendment does not permit "imposition of the death
penalty on ona ... who aids and abets a felony in the course of
which a murder is committed by others but who does not himself
kill, attempt to kill, or intend that a killing take place or that
lethal force will be employed.” Enmund v. Florida, 458 U.S. 782,
797 (1982). Under Enmund, "[t)ho focus must be on [the
defendant’s) culpability, not on that of [the accomplice) who...
12
shot the (victim), for we insist on ‘individualized consideration
as a constitutional requirement in imposing the death penalty..."
Enmund, 458 U.8. at 798, relying on Lockett v. Ohio, 438 U.S. 586,
605 (1978), and Woodson y, North Carolina, 428 U.S. 280, 304
(1976).
As in Enmund, so too in this case the Florida Supreme Court
affirmed the death penalty in the absence of record proof that Mr.
Bush "killed or attempted to kill, and regardless of whether he
intended or contemplated that life would be taken." Enmund, 458
U.S. at 601. Such a finding would have contradicted the very facts
found by the Florida Supreme Court in its recitation concerning
what this record disclosed.
In Cabana vy. Bullock, 474 U.S. 376 (1986), the Supreme Court
further explained that the mental state finding required by Enmund
must be made by the state courts. The Bullock Court also cautioned
that federal reviewing courts were not to rely on or deem
Sufficient state court findings that the defendant a) was an active
or major participant, and/or b) that there was "sufficient"
evidence in the record from which a finding as to the defendant’s
Culpability could be made. Cabana vy, Bullock, 474 U.B. at 389-90,
Entund _v, Floriga, Cabana v. Bullock, and Tisen vy. Arizona
(discussed below) require a finding of fact from the state courts
as to the defendant’s individual mental state, not a sufficiency
determination <= 4.@., not, as here, @ ruling that participation in
felonies can be deemed sufficient to constitute the intent required
13
by Enmund.'
in Tison v. Arizona, 107 &. Ct. 1676 (1987), the Supreme Court
reiterated that a finding of major or active participation anda
contribution to the vioctim’s death does not constitute the
requisite finding of individual culpability. Tison, 107 S. ct. at
1686. Tison held that the state courts must make a finding of
intent or, at a minimum, "reckless indifference to human life"
before the death penalty can satisfy the Enmund culpability
reguirement. Because the state courts had found major
participation, gee Tison, 1077 5. Ct. at 1688, ("The petitioner’s
Own personal involvement in the crimes was not minor, but rather,
as specifically found by the trial court, ‘substantial’"), but not
intent or “reckless indifference to human life," the Supreme Court,
relying on Cabana vy. Bullock, held:
The Arizona courts have clearly found that the former
[major or active participation) exists; we now vacate the
judgments below and remand for determination of the
latter (intent or reckless indifference to human life} in
further proceedings not inconsistent with this opinion.
Tison vy. Arizona, 107 S. Ct. at 1688,
Ae in Tison y. Arizona and Cabana y. Bullock, Mr. Bush’s case
involves a "sufficiency" ruling -- that there were actions which
' Thus, the Mississippi Supreme Court’s express holdings that
"[t)he evidence is overwhelming that [Bullock] was present, aiding
and e decedent),"
and that "[(t)he evidence is overwhelming that appellant was an
committed upon [the
decedent)," Cabana y. Bujlock, 474 U.S. at 389 (emphasis added),
quoting , 391 S0.2d 601, 606, 614 (Miss. 1980),
were deemed insufficient to establish the requisite findings of
fact on individual culpability because they constituted only a
finding of major pavtioloetian. Bullock, 474 U.S. at 389-90.
14
contributed to the crime, Bugh, 461 80.2d at 936 -- but is devoid
of a state court finding of fact that Mr. Bush’s intent was an
intent to kill or that his mental state was one of reckless
indifference to human life. As in Tison and Bullock, the ruling of
the state courts in this case is at its essence a ruling that by
"legal definition" Mr. Bush should be held responsible. Bee
Bullock, 474 U.8. at 390.”
B. Discussion
To effectuate the eighth amendment principles embodied in
Ennund, the Supreme Court has held that the state courts must
expressly find at jeast that the defendant was a "major
participant" and either intended to kill or had a "reckless
indifference" to human life. Tison;: Bullock. Participation and
mental state findings are needed under Tison and Bullock.
Although acknowledging that the mental state finding was not
made by the jury or Florida Supreme Court, gee Bush (majority
opinion), siis op. at 6-9, the panel majority ruled that a
Statement made by the trial judge when rejecting the statutory
"accomplice whose participation was relatively minor" mitigating
factor was sufficient. All that the judge’s statement indicates,
however, was that the judge was going to reject the mitigator
because he believed Mr. Bush was a "participant". See Bush, slip
? See also Bullock, 474 U.S. at 389 (finding inadequate the
state supreme court’s findings that "[t)he evidence is overwhelming
that appellant was present, aiding and assisting in the assault
upon, and slaying of, Dickson” and that "{tjhe evidence is
overwhelming that appellant was an active participant in the
assault and homicide committed upon Mark Dickson.")
i5
op. at 9 (quoting the statement). All that the judge found was the
first part of the two-part finding which Zison and Bullock require.
Nowhere did the jury, Florida Supreme Court or trjal judge
find that Mr. Bush intended to kill, attempted to kill or was
recklessly indifferent to human life. See, e.¢0., Bush (majority
opinion), slip op. at 9 (quoting trial judge’s statement); Bee also
App. D (analyzing the state courts’ rulings in this case in light
of Enmund, Bulleck and Tison). There is no express mental state
finding ("intent"/"reckless indifference") from the jury, Florida
Supreme Court or trial judge here. See App. D.
Bulleck and Tison expressly hold that state court
"sufficiency" determinations -- that as a matter of accomplice law
the defendant should be held responsible -- are insufficient to
meet the eighth amendment requirement of express findings of fact
as to the defendant’s mental state. In Appellant’s case, the state
courts’ rulings involve no more than such a "sufficiency"
determination. . The panel’s ruling is not in accord with the
Supreme Court’s precedent.
Appellant submits (complemented by the analysis included in
App. D hereto) that the panel majority’s decision is in conflict
with the decisions of the United States Supreme Court in Enmund v.
Florida, Cabana v. Bullock and Tison vy, Arizona and that rehearing
and review by the full Court are appropriate to maintain uniformity
between the decisional law of this Circuit and the law of the
United States Supreme Court,
16
CONCLUSION
On the basia of the foregoing, Appellant prays that the Court
grant rehearing and en banc review.
Respectfully submitted,
/ oA of lA a
[pil If, lols Fr
Billy H. Nolas fre
Julie D. Naylor
Post Office Box 4905
Ocala, FL 34478-4905
(904) 620-0458
(Counsel for Petitioner/Appellant)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing has been furnished by United States Mail, first class,
postage prepaid, to Celia A. Terenzio, Assistant Attorney General,
Office of the Attorney General, Third Floor, 1655 Palm Beach Lakes
Boulevard, West Palm Beach, Florida 33401-2299 this 4th day of:
June, 1993. a
"ii
/,
/ UY, pul I Ge—te Bus # HAAS
Dell)
Heli te: hitta7
Attachment C
17
DEATH P™NALTY
IN THE UNITED STATES COURT OF APPHALS ae 4) | ae
FOR THE ELEVENTH CIRCUIT sneha dl |
Y
JUL 2 0 1993”
No. 89-4051
MIGUEL J. CORTEZ
JOHN EARL BUSH, ~- .. CLERK © Uy itd
Petitioner-Appellant,
versus
HARRY K. SINGLETARY, Secretary,
Florida Department of Corrections,
Respondent-Appellee.
On Appeal from the United States District Court for the
Middle District of Florida
ON PETITION(S) FOR REHEARING AND SUGGESTION(S) OF REHEARING EN
BANC
Before: KRAVITCH, EDMONDSON and COx, Circuit Judces.
PER CURIAM:
VA The Petition(s) for Rehearing are DENIED and no member of
is panel nor other Judge in regular active service on the
Court having requested that the Court be polled on rehearing en
banc (Rule 35, Federal Rules of Appellate Procedure; Eleventh
Circuit Rule 35-5), the Suggestion(s) of Rehearing En Banc are
DENIED.
( ) The Petition(s) for Rehearing are DENIED and the Court
having been polled at the request of one of the members of the
Court and a majority of the Circuit Judges who are in regular
active service not having voted in favor of it (Rule 35, Federal
Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the
Suggestion(s) of Rehearing En Banc are also DENIED.
( ) A member of the Court in active service having requested
@ poll on the reconsideration of this cause en banc, and a
majority of the judges in active service not having voted in
favor of it, Rehearing En Banc is DENIED.
ENTERED FOR THE COURT:
a . C
— aw oe VA ony
UNITED STATES 2 ie
Attachment D
IN THE TED STATES COURT OF AP ATS FILED *
U.S. COURT OF APPEALS )
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
—
AUG - 9 1993 ©
NO. 89-4051 |
. MIGUEL J. CORTEZ
JOHN EARL BUSH, CLERK
Petitioner-Appellant,
versus
HARRY K. SINGLETARY, Secretary,
Florida Department of Corrections,
Respondent-Appellee.
Appeal from the United States District Court for the
Middle District of Florida
ORDER:
( ) The motion of appellant, John Earl Bush,
for (xX) stay ( ) recall and stay of the issuance of the mandate
pending petition for writ of certiorari is DENIED.
xX The motion of appellant, John Earl Bush,
for (xX) stay ( ) recall and stay of the issuance of the mandate
pending petition for writ of certiorari is GRANTED to and including
October 18, 1993 , the stay to continue in force until the final
disposition of the case by the Supreme Court, provided that within
the period above mentioned there shall be filed with the Clerk of
this Court the certificate of the Clerk of the Supreme Court that the
certiorari petition has been filed. The Clerk shall issue the
mandate upon the filing of a copy of en order of the Supreme Court
denying the writ, or upon expiration of the stay granted herein,
unless the above mentioned certificate shall be filed with the Clerk
of this Court within that time.
( ) The motion of
for a further stay of the issuance of the mandate is GRANTED to and
including , under the same conditions as set
forth in the preceding paragraph.
( ) IT IS ORDERED that the motion of
for a further stay of the issuance of the mandate is DENIED.
UNITED STATES C IZ JUDGE
ORD=-45
Attachment E
-~_-
“om -- ~
936
161 SOUTHERN REPORTER, 2d SERIES
BUSH ¥
Cite as 4461 So.2d 9M
STATE
1984
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sare r tr | ‘ » t ‘ y ct 9 } .
nce he has intelligently waived the oth kidnapping and robbery, ir lit ' viction a e senter f dea
al. that prose jtors ta ire mforry a " ig nuy 4 , . PI ganar vs Hi @UU “ ‘ ‘<a
" r ' 4 » ‘
' P , rst-degree murder, failure to instr We have juris Art. \ b)
‘ ‘ change r Ww ness ts rT ny - ( | I @-517 | | A
) riminal Law O17 .C1) ‘ . Fla Const H ’ F
—— - ——— , , hird-degree murder was at most harmle = ray reviewed the recor
Aa MSCOVeTY avi a ig sf 4 ann? ,] a b J '
- ‘She ’ . r rT rr ‘ ry ‘ ;
; 4 iression, in orde O ve ac error Wect’c FSA. § 782.04(4 ana considered the issues presented
r ré either mistr y Rich rt y ’ . Jd (OL.V4Ea4 . r eu
| a ve A ps ry + } tr nro ‘ ‘ rat ’ ¢ ’
« ne miu Vi @ 4 > . . Yea we lind no reversibDie error a ’ i»
r é jelendant nfess mn give ‘ ? } :
: ee W 13. Criminal Law @1172.9 Bus! nvict 1 sentence
alter randa warning was a
; .
. “ P > eo 9 lage eratrerr nf y ‘ + ‘ r > a = ‘ .
: photograp! fy ren jead bod & riminal Law S520 Z) x wavemen r murder e® evidcer i i lé rats
- tre eff r Tr ’ > fone . T y ‘
wer adr hile 4 lier N f - ’ ‘ intarines of ynfess ' wa lé nal senvencing aecision required wing ever | Aor
} |
f
— najority vote of jum not ¢ IR?) 6Frances ster } —
‘ iror for cause was proper Decausé f als Dy Implied suggestion Dy inve S jury Was n prejud : hes . " a x if a.
error, where Dod of 3 ‘ ‘ . tne nver ’ — ~
ttitude toward death penait i gating officers that defendant would be “J jury instru “ os SUNN © where worke
.
- nie for retrt t , fit if he ontessed nce statement r ere nere was I oyect r r modifica . Cer to the k : + . tore a
[ f I
, - ‘ J 7 reo 4 a na ‘
‘ ‘ mer rese té f { lelendal 1G not vercome T. A ARR. . a r Wa al re - . a ‘ ‘ er roove I
? ict T DOd\ 7 ere thirteas
ener ‘ r Criminal Law ¢438(6 from the store : ha
| a wA
A er 4 “ Photograpt are adn ‘ " 14. Homicide @311 ner adaome 3 os } .
rr he : t me j a examiner ¥ ext 7 on ‘ . — enter — : , nack ’ her Nea 1 ‘ rar
oe - x } Ast »
-? 9 vw — om y ’ re neo rr nr r , wl ’ |
4 y 1 é atu and a € a roer iria! that sentence f deat! At tria i r f
’ ‘ ‘ 4‘ ‘ A ere rf ts , mr / " > ,
‘ DOSE abser ntent ; L - ewspaper é ; : .
‘
s . ler I a n tnat fe “ uid De taker A ‘ ine tore ‘ A
8. Criminal Law @438(6 . —_* - > . , A
r rf reg reg where fact ‘ . “ r
4 = P . 4uil I lLacLS were s&s t nt ty a : a a 4 rk
Criminal Law @627.8(6 Allegedly gruesome and inflar at . eaeaen ' , & '
DD re Fir 17 g that de er lar > . , r ‘ Dia f a
> = hard y ’ r } 7 . hotograpl fy tim's body wh } " I lal
+ .
? r , , , | ’
. S iV re rea intent r y ‘ +} » . \
ans ary niv when there : . , aa t medical examiner in expla 4u J ‘ é i ¢ é ore were L P "
. Diatior noth
at and a! bye n base } gy external examination of victim, wer¢ , or per ne
jantifiada R }
eve at QT Die I ircer tra notwitnstanad k st AU Bu i i ‘ :
15. Criminal Law @996( 1.1 nie
tential for swaying jury dumng sen » i< ‘ é
2. Criminal Law @627.7(3 , Appeal for retribution in pros: :
: ng phase, where photographs were not : rour taped tateme vive }
pr ecutlor ta re & nforr efense ng statement in mura tr
x “aa ti i nul er Vv |
hocking a ts lefeat value f their ré , : Na were Diave juring hs ria Thec.
st ate’s nvest gat rw ild testif that : minor impact and did not merit resents tute the ;
4 ” KT cad rT ’ rr
. e eve
i-wnerf 4 ljafanAant rh ‘ yr b r y ; ther
, ess lé ried Geile la . pral ’ “ Standing tne f t that r ' :
’ ing ti ia at jul \ 4 and are presenté } } the .
estigator leposit r tate na 9 Jury = 10% Was sever ri f t r favor f mor ’ . 4 S
. ' py k most favorabDie t H tatems ,
r ) | tant ‘ +} r ire
‘ b r ¥ s a - , r ‘ ta pena ty ar } Six ts x ts " J . the ef fe e ob o t
‘ » : ‘ fre +> > 5
| t ;
, r r , " y A her r nave pre 1deq sentence f deat
i Uta i ‘ AlT ive ; ; , ,
. | Ae
e.
7“?
; ——e ~
rT nm
-
BUSH v. STATE Fla. 939
938 Fila Cite as 461 So.2d 9 (Fla. 1964)
461 SOUTHERN REPORTER, 2d SERIES
vi (3.4) Bush claims that this second states were inflammatory and prejudicia
Terry J benefit of a Exhibit fifteen, a blowup of the victin
P t ne
na rr be ‘ r ‘ ~ ‘ ‘ 4 4 Ss 1aae without bene "e
mee SEETY « were pianning to rot change of testimony is not a discovery vi 13, 4] absolute statement was mad ’
\ n l vel ) } : » fae , e. . at the morg ’
| ‘ . ‘ oe 4 . ‘ ne J@ a
ne convenience store, and that during and lation « 4 rot ria S¢¢ Miranda warning We do not agree Al bloody face, was taken a .
#4); na Nii sUTING na iA) ana does not constitute the abso! its statems ial ’ i , 4 t 4 eis Fr nce eas
t - . ‘ " ‘e the ¢ Gg solel\ i ae ance: als
after the robbery he was under their dor legal necessity required f , y (Fla. 3d thougn it had been eleven hours since the admitted solely ) wmenuly
, — = = . ‘yY required [or a mistrial S€ ¢ irand , , f +>
: ‘ . ‘ I vita tatac twentvone Was a Cci0se-U i
setien & ; ll recitation of his mghts, Bush stated Exhibit twenty-on ‘ |
aul Sf states that after the rv ner f 9 ’ ~ full recitation i ii “4
Du Llals wnat al uJ root ‘ Lune State, 341 So.2d 806. 807 (Fla. 3d though hot if tr ‘tir
| . . © ye ’ “ Adeecred y c f Qn ry ri ew ViK bes ea
ev drove toward Indiantown, when |} DCA 1977 that he was aware of his rights and desired gunshot woun ,
i f i } ‘ _
iu re a ea; ny . .
plices ordered him t tor The vi vis to waive those ngnhts here is no require (7,8] The test of admissibility of p!
? W rr ’ r ’ ry ’
W her testimony! Jiecereananc ’ 7 ‘ ‘ \ , ra
9 j i ¢ ] lla crepancies ear ment at <4 accused e continual re
Was pusnec it of the ir and Bus} . om appea , ‘ that an accu 1 D munualty grap! r tuations sucn as tr s reieva
th ‘ ’ Waive r t
; © wilne Piz and mosit firmor . any y i af ro hts ‘e ~ telligent
avers tha hg ntended t et her fre ai and deposition testi \ nded of his mgnts once he nas intelige! » and not necessity Photograpt are
aes ' ment +} wormit ¢) y e
Ca De 1 side-Dy-s » ff t . ‘ redi f . > J ¢
be wever. the a mt ~¢ 16 led that Sla . a 1de-Dy ae ior tne J ir’y waived ther Biddy l iAamond dA missible where they assist the med rl ‘
-_ ’ ’ . ; +}
onsidger inis wot orm ’ . 4i¢ . t ‘ jie " j ‘ 190 f ' ’ . ; ; /
, y } , r ide! int uid serve aiscrec ' » tr r.igio}), Ce7 dented ' nat
P ght be able u 46 them and the } ry to discredi ne rail Lae (OU rd aminer in explaining to tne jury tné 3 re
: r nar | ’
: , witness and sh 1 he fay < > ¢ +} y wal’ A aire ‘ my ¢ . t 1724. 4% a.20 14
Bush ¢ lispose f her Bush. not ang should be favorabie to the i IW), KH ' 1/24, 46 L.E0.20 194 and manner in which the wounds were
lefer T ‘ ] @, t
nae ¢ , 1@ lense nere re e fz »¢ F ’ . ‘ : ’ fat ; : } oot ria ’ /
esiring i he victim. faked a } we at in 10! nike tailure to name , . pit Lucas ave ow flicted Welty v. State, 402 d0.:
} > 4 4 a witness nanged testimony <¢ cs not r . and W A sit +4 ’ ' tar ‘
er w » } L , 7 ed her pert ang j imony 10¢ ‘ j i 1163 (Fla 19R1) Bauldree 1f¢ oo. |
7%
tr +h ' f j hardsor
: Mawes f , P e leve [adi very violation and iara , , s¢ 1Q7 « 107 Ty }
até . e grou! a ar Violation and w 8 Ruch a ntends that the 9.24 196. 197 (Fla.1973 the
)
, ’ ee ry , r ‘ ,
r Por - ‘ a r fics I ‘ / . ‘ ; r
¢ arkeé rh a iti ira ? ‘ f } tatement Wa : atea ‘ase. exnibit twenty-one was uSé¢
- Jur 5 5 Hiya) , | ‘ ficrat ‘ = ~< aminer ir
é irv returne " or ‘ f ¢ DU a \ ed iggestior y tne inve ga O assis ne medica! exa € expia :
,
" , nm } — ' , intariné imissib|le ‘ — a . themafie if tes the external examinatior f the
‘ arge Tir egree murder ro? . . a On appea Bus! ar , . ‘ ia ‘ Ww oN Shes e externa SITS Us r
: , > °
y +} ‘ ’ ’ . ry? : F 1 ‘a be tae ; | ’ , ‘ aAw ,
er “itn @ lireart na k " f } gE acl nie r were inadm! hle : E ‘ é i? (furt fa ated tnat a ihis exhibit was ciearly acmiss ea
> y ‘* “
. . 7 #5 ‘ 7 1 . 7 — ry ‘} , treat , * t? r 4
' ‘ T ‘ th, enter ny hear F ‘ P ° he ause hey were pr 7 lred throug! = ‘ ei £ : x ‘ tferr va r j ‘ ‘ , ’ is ra ne { t ’ a |
; Té ‘ ‘
' ‘ ‘ ¢ r ‘ ‘ J er Tiue e and without full benefit of i ect r seek t Olall auf examiner observed during - cAa
| I +} y}
4 P Th, Wa b req ré Miranda dy ;' ‘ ‘ } } ¥ Pt ‘ ‘ |
. 4 . 4 A ‘ 4 y . » } ‘ ¥ ry ? nrorr : +} ‘ ' af , fT Tifterent r
é . , ‘ ] “4 6 .3t oli — ( ¢ f f ’ roga O ga da ‘ cene re
le ’ - " 4 ‘ . ment }
4 ‘ ’ , ;
y b 694 ae Or b mornir f Mar I at it the alleges rime i po exnmibdit twenty We ave eyear
. ‘ ‘ -
ro” a ,
Fi 4 " enti , q ‘ —_ ‘ es , ‘
F ting }
a
‘ ‘ P ‘ j be
’ henff Depart ent ty . ” ils ir gr \/PrerT fate 4 ’ | he irre ' r
‘ writ? ? : ’ Y r
j ‘ nf ' ‘
: a alr wr nag Dpeen ¢ rf ts rie “ ‘ Pila.igd< i ne ‘ ‘ tnat a eye ] gp rue .
ates rig?
. T , — e of cing fr 7
; . , r a earc} War ant He m f i A ne [ 1u< f a Ta 4 Ms ‘ ; ee ry pr ; gral are
v : ‘
” , 7 : ’ 77 | ; , ,
‘ . ; ? obs eens ‘ 1 P f} right executed a wa ” . ‘ A ijownsnenda al “ jence if rele ar : r ‘
i é
; - "A 7A rT k’7A Ty
r } er, tre atts POC to estal nana f . = Ut ’ 4,9 LS ie. rove! na iS¢ rye i
‘ } | ; : " }
y ’ t
; ; ; he nig! 1 OF order ' rddit ¥ we Nave previou y ne : na i letermined in the r rry " ‘ 7
; ‘ ; , »
, ; ; = a , f¢ ’ no renaeread aA ‘ ‘ with ; re, ird t 4 7
‘ ePpu ner | ré lé ted ? "| :
] } j } ,
é ; e the police té tne a ed | , f the nroffers .
; r gran tne y t } } hf er : .
; ve | ta ‘ ‘ ; Ba. ;
, ~ De ea eT nm nin re . r P ’ ths ‘ ‘ ‘
f . k r al au tre aiit rié Wa t it er ar i ‘ re ‘ ) bd © be b ,
: j rn ‘ fate 29 ™ i f 7 vhether ph ’
f earijer eT rest and wa free t ref e the re ‘ 2 - | :
]U
; : 46,4 aw from the ecene ire r ‘ ‘
} e« - r Au 4
. “ . insvead Bu na npa ed tw ai er ‘ ; ’? .
} { , : rf ths ’ ta Se ‘ ‘ ha ; : eter at ‘ rele
é f f y ns ne P We St rain Re ach) to the ? ‘ where fa | 4,4 A |
; . , r tr
ty t I ir i i f : i f lt i k | ex
‘ er er s € mee 1 Ww ‘ wi A
- } " 20 bt leltle (} 4 1 DCA - t ai} nature I t re . ‘
. ‘ ‘ >} 4
: 6 tatement t? ’ tT ; ty uy hi ‘ . ' 4
: ; } y ‘ 1 a , . , “i re I
. ° v¥ . . . . tne 4 ‘ 4 . . ; ‘ y ’ ‘ rT ; " ,
. ‘ i : were ‘ ) empl : 4
€ hy r rné A r ’ ani. y } > , +} <4 :
) : nder the tota | | ty ~s xf)J ' ;
‘ ‘ r r > ; +} iA , r¢
‘ ha ‘ } ‘ + « , P .
} ave Wa " ance the tatems P ; VUeel tate ) T } 7%
r ’ Ps ‘ ’ ’ » ‘ ,
" if yer rye ause thie wf 4 " j ‘ ‘ hye ‘ ; ‘ . " . . ‘ : . ois
er ‘ vy i ' } } rouse that ex te “wa
ré ory il. ’ rv > ‘ . . . Ls ‘
‘ neip ni Bush the proceeded. ir ; ' ‘ M ' | '
r 4 ’ ‘ tore Ke “Wa i : ryre ; 7 tye i ‘ “Aa “Qatt
‘ ‘ ’ 4 6 toc > P / tatement ‘ dew it a ‘ : ’
A iG | \y +} t he } 1; ed ft j . } ; ’ fiors
} } 4 iT + ave sie | i
I _ eo} As
b ‘ rime s ‘he hecinning i, ; , .
; k g jue which used |} é the , ” enda t} ‘
r , ‘ , ‘ iry
r P ‘ ‘ , P re f 4 <¢ er aske | f he wa . ‘ 4°¢ ,
‘ - * “i — ‘ ~ > : ¢
‘ , h ‘ thy tatement tar ; he had hes er , 9 ‘ ; ‘
‘ , ’ ; right - f hz — ; ’
’ r ‘ 9 ,
" b f
p ts ’ . : . , ‘ ' ,
A ‘ er tre ry? r ré re ’ [ I
simple fact that no photograph of a dead
body is pleasant /d. at 379. The same
ravonale apples here, notwithstanding the
potential for swaying the jury during the
sentencing phase. We require only that
the photograph not be so shocking in na
ture that it defeats the value of its relevan
,
ty. /a@ These pictures were admissible
9 In sint four Bush aro th t th
(7; in point four, Bush argues that the
(ria: court erred in excluding a potentia!
iror on a chailenge for cause. He cites
Witherspoon v. Illinois, 391 US. 510. a8
S.Ct. 1770, 20 L.Ed 2d 776 (1968), and Lock
e Ato 438 US. 586, 98 S.Ct. 2954, 57
Ed 2d 972, (197R8) ¢ ; chat
‘4.20 J'3 (19/8), for the proposition tha
iry veniremen may be excluded only if
ney Gemonstrate an uUNnmMIistakeaDly clear
atutude toward the death penaity which
wouic prevent them from Making an impar
4
. ,or
ers rn th fatfannA< ,
lai Gecision as to the defendant's gu
r. : odin . al 4A t ‘
ee 4650 AGaGms v. jezyas. 44% S. 06, 1
: er Ed 94 «2
eve bs. LAL.€ ) ive
T - “ + ~ r ?.? >, °
j | . Stitutes ‘ per +
- . > <r > mW > >.
; the statements e juror ex
. asé
. r
. F r ‘
I A 4 a a rea
nuthine
" a } ‘ “a
. ae -
er a wna J Car nere
e ‘
r “ art
ré yf . née
x
> . <
}
¥ oe i a
Proce + 2 me 7 ; ; tf
rs rir . entencs. ra
r fir
2 + . re
a rilé ‘ +} H
4 “ Fils
a - {
ne Judge W uid tnat ir ar
" e¢ ’ shar . ’
1 & lange ‘ as
oa ‘ er r t ’
y 4
r ° , y > r r
4 La 4
‘ he presnonaihilit ‘ nder ,
r " «
4 +} mr ¢
, S
r
, > » A
, ‘ ar fee Ke
A arte eve e first age
oad «
6 er , ¢ 4 , r r y ry
e av . . c
, ‘
¥ A a I re ere a erdict T
‘
irder tr fire? Tre '
x i > x an 4
he - ‘
4 ‘ ; . ’
461 SOUTHERN REPORTER, 2d SERIES
Defense Counsel I understand. of
course, Sympathy will enter into practi
cally any case It's not anything
that is unique to this case or any particu
lar type of case. Do you understand
that? How would you feel about it with
_
that in mind
baaad a’
7 a T . = 7 ,_)
Juror i agont know it would just be
Defense counsel: “Do you think you
could do it, put sympathy out of your
ming and base your verdict on the law
:
and the evidence
7 T
Juror: “No, I don’t think s
VW - * hb
we do not think that it was error t
~ > , TT
xcuse the juror. This juror’s attitude t
wre 4 +h + ; ¢ ,
ward the death penalty is firmly grounde
ng an impartial decision
would clearly prevent her from render
(10,31) In point five, Bush argues that
ir adecision in Anight v. State, 338 S
ria.i9/6), should be narrowed or dis
+
tinguished because of the facts of this case
might heid that an indictment charging
remeditated murder would permit the
State to proceed on either the theory of
premeditated murder or felony murder
Bush claims that since he did not. in fact
t the actual murder, Knight is inap
plicable. We disagree Whether or not
Bus mmitted the actual murder is for
ne jury © determine. The jury could have
‘ + ¢- , S ‘ sail ,
led that Bus was guilty of premedi
ec murder, or the jury could have cor
ed based upon the felony murder. Ir
ther case, Knight is applicable and Bus}
was not prejudiced by not knowing the
specific theory upon which the state would
roceed. Sec UCallaghan v. State 429
20.<¢ 691, 695 (Fla.1983); State v. Pinder
- S0.2d R36 2G Fla 1979)
12) Bush argue mn point six that the
r rts rejection of a third-degree mur
er instruction was prejudicial error. We
lisagree. Third-degree murder is defined
s Me unlawful killing of a human being
when perpetrated without any design t
seath, DY a person engaged in the
‘ r r tr e attemr , tp perpe
her han rohher
[ understand of
enter into pract.-
It’s not anything
ase Or any particu-
you understand
feel about it with
It would just be
ao
if
you think yot
u
‘thy out of your
rdict on the law
InK so.’
€ was error t
rOrs attitude to
orm
irmly grounded
er from render
ISM argues that
fate, 338 So.2d
arrowed or dis
‘ts of this case
ment charging
iad permit the
the theory of
eiony murder
(nezanbe :
L721gA inap
nether or not
murder is for
oe aieealil
could nave
?
O premed
i preme }
4 “a
41Q Nave cor
murder
: r if ‘
egree mur
error We
r lefined
man De 4
BUSH v. STATE Fla. 94]
Cite as 461 So.2d 936 (Fla. 1964)
[or] kidnapping " Section 782.-
04(4), Florida Statutes (1981) (emphasis
supplied). Since the jury found Bush
guilty of both kidnapping and robbery, fail-
ure to instruct on third-degree murder is at
most harmless. See also State v. Abreau,
363 So.2d 1063, 1064 (Fla.1978)
SENTENCING
In point seven Bush raises a variety of
objections relative to the constitutionality
of the Florida capital sentencing statute
Each of his contentions has been previously
addressed and we do not deem it necessary
to revisit them. See e.g., Proffitt v. Flor
da, 428 U.S. 242, 252, 96 S.Ct. 2960, 2966,
49 L.Ed.2d 913 (1976
(13) In Bush’s eighth point on appeal! he
challenges the trial judge’s “repeated’’ in
structions to the jury that a sentencing
decision requires a majority. We have held
that such an instruction is erroneous. Ha
rich v. State, 437 So.2d 1082, 1086 (Fla
1983), cert. dented, — U.S 104 3.(
1329, 79 L.Ed.2d 724 (1984)
Here, although the jury charge contained
some objectionable statements, the tria
judge explicitly corrected himself by ex
plaining: “if by siz or more votes the jur
Jetermines that [Bush] should not be se:
tenced to death, your advisory sentence
f " :
will be [imposition of a life sentence
(Emphasis supplied.) As in Harich, it af
firmatively appears that the jury was not
onfused by the partial inconsistency of the
instruction. Since the body of the instruc
tion was correct and there was no odjecuion
or modification suggested, we find no pre}
idiciai error
(14) Bush argues in his ninth point on
appeal that the trial judge should have
nstructed the jury during the sentencing
* >
phase that a sentence of death may not
ve
nposed absent intent to kill or contem
plation that life would be taken. In sup
port, Bush cites Enmund v. Florida, 458
U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140
1982), which held that proof of intent tu
kill or contemplation of death is a neces
sary prerequisite to imposition of the deat!
penaity 158 US. at 794, 102 S.Ct. at 337
Bust Aims that failure to give t! S spe f
ic instruction to the jury may have resulted
in a death sentence simply because the
jurors believed Bush to be a “bad fellow
We disagree with this contention on the
facts of this case. Here, we do not have a
mere passive aider and abettor as in En
mund, where the only participation by Er
mund was as driver of the getaway car
from what he supposed was only a robbery
and not a murder. The facts of this case
show that Bush was a major, active partici
pant in the convenience store robbery and
his direct actions contributed to the death
of the victim. The degree of Bush's partic
ipation is sufficient to support a finding
that his involvement constituted the intent
or contemplation required by Enmund
(15) Bush raises numerous issues in
point ten, only one of which merits our
discussion. He argues that during the se
tencing phase the prosecutor made an ap
peal for sympathy and revenge f
family of the victim in the following state
ment to the jury
‘I ask you, don’t consider the sympathy
r
have. Don't
that Mr. and Mrs. Campbell
consider that when Mr. and Mrs. Camp
bell sit down to Thanksgiving dinner just
three days from now that they are going
to IOOK across the table and thev are
going to look at Cathy and they are
going to see Frances Julia Slater, the
identical twin sister. If sympathy had
any part of it, think of what they g
through. And every time they sit dow
and look at her, this whole incident is
going to come Dack
Bush contends that this appea! for retribu
tion was devastating inasmuch as the jury
vote was 7-5 in favor of imposing the death
penalty. We disagree. We have previous
ly held that although “the rule against
nflammatory and abusive argument by a
State s attorney is clear, each case must be
considered upon its own merits and within
the circumstances pertaining when the
questionable statements are made
Darden 1 State, 329 So.2d 287. 29] (Fla
1976), cert. dismissed, 430 U.S. 704. 97
S.Ct. 1671, 51 L.Ed.2d 751 (1977)
Ir Vardaen f ir example tne state cor
uously referred to the lefendcdant as ar
942 Fla
animal and played upon the necessity of
restraining him permanently. We held
that within the context of the argument,
that reference to the defendant did not
constitute prejudice requiring a new sen-
tencing hearing. The instant case is not
unlike Darden. We find that the above
appeal to the jury’s sympathies was of
impact and does not merit re-sen-
The statements are not a clear
abuse, nor do they rise to the magnitude of
a denial of fundamental! fairness
(16) Teffetelier v. State, 439 So.2d 840
ria.1983), is not inmapposite here, we
Stated
Amments of counsel during the
urse of a tmal! are controllable in the
discretion of the trial! court, and an appel
late court wil
‘
not overturn the exercise
sucn discretion uniess a clear abuse
has been made to appear. Paramore 1
ine > A 4 - 4 17Ocs - ja
State, 223 50.20 Sv ria.ivoy), vacated
| aoc ( ; i 22 | 4 9A
® U.S. 935 (92 S.Ct. 28: 3 L.Ed.2d
sy Q7
Jic
at 34 Ur where ciear pr € Orla
adDuse exists Ww we automatica reverse
+
for resenter ng lerretetle $59 2c at
—4 Here, we a 4 nat tne ne
, 7
“a lear iraw f far a Lléerrete
;
eT j
4 entences are af
’ r
r re
are ' .
Ii 4 ERM . ana
HAW. JJ.. concur
. ;
ERRLICH, J ncurs tior j
pecia concurs with a pi f the
[ x
entence which ALDERMAN and
. 1?
HAW, JJ., concur
i" i 7 7
OVERTON and McD ALD, J ncur
e cor t t ¢ r ré )
' the sente ‘
. '
EHRLICH, Justice, specia neurring
.
i piete agreemer with tne
r rit | wnte eparate to adare:
- r ? r ‘
[ ‘ r f A ea i ré ‘
461 SOUTHERN REPORTER, 2d SERIES
cutor’s description of the ongoing suffering
of the victim’s family did not fundamental-
ly prejudice the defendant so as to require
a new sentencing procedure. It is equally
clear that the argument was irrelevant and
improper.
Section 921.141, Florida Statutes, sets
forth those factors which may be presented
to a jury in support of the prosecution's
request for a recommendation of death
The suffering of the survivors is not rele
vant to any of the factors listed. The
purpose of the death penalty statute as
now drafted is to insulate its application
from emotionalism and caprice. This Court
has long condemned prosecutorial argu
ments which appeal to emotion rather than
to reason. See, eg., Teffeteller v. State,
439 So.2d 840 (Fla.1983), Singer v. State
109 So.2d 7 (Fla.1959); Clinton v. State, 53
Fla. 98, 43 So. 312 (1907). I can think of
few arguments which are more calculated
to arouse an intense emotional response in
a jury than the graphic portrayal of the
survivors I can imagine n
set of facts on which this would be proper
bereavement
argument
Unfortunately, in spite of the clear teac!
ing of this and other courts that such argu
ment
improper, prosecutors continue t&
iulge in it. This is contrary to the ethic
f the profession generally and in violation
f the duty, as state attorneys, to seek
istice, not merely convictions. Zealou
representation of society's interest does not
require society's advocate to overstep the
bounds of professional restraint
ing that
Our hold
the improper argu
not require a new sentencing
in this case
ment does
trial must not be seen as our condoning
such impropriety. Continued flouting of
ethical limitations of prosecutorial conduct
can be corrected through professiona! disc
pune without burdening society at large or
the criminal justice system with the cost of
retry
ing the case
ALDERMAN SHAW, JJ
and
BUSH v. WAINWRIGHT Fla. 409
Cite as 505 So.2d 409 (Fla. 1987)
Courtney J. VAN RIPER. Petitioner,
.
STATE of Florida. Respondent
No. 68457
preme Court of Flor
ret ) 96
rnor report 49 S 4 ‘
OT considerat 7 ‘ M mn for I
conciderating ¢ , i/o 7 ;
; a iit : ‘ a ‘ r
petitponer
, in 7 7 T 7 7
(yt , +} ‘ ; s
i] ERE! iid M ’
rie Same © here?
John Earl BUSH Petitioner
’
Louie L. WAINWRIGHT Respondent
John Earl BUSH, Appellant
y
STATE of Florida, Appelle«
Nos 68617 68619
} ns , Vv be
; *,
‘
rig proces gy ha hy eor
v hing with a | —— "
f drt ’ for Mar c, ‘ r Pf
‘ T ’
er rr nde
o ipe ‘ oer nf postu
tior f T C
t relef ine oupreme Court held that
eens ,
lai COUNS , fa Ire to usé psycniatr
“Amr no eV. .
compuing evidence of defendant's ment:
mnot a >
ompetency, failure to file number of pre
tr ,
ippre on motior and I re t
ect to cert a ect of nroceedir ?
? ,
sever stage — és ere
noffact
if af ‘ of Tae ) s r
"er '
me ‘ hological probler
‘ rning «aA } ,
4 . 4 eS pass ve ar . | dene 1¢ ‘
personality, and possible diffuse organic
brain damage did not, when taken together
sufficiently raise valid question as to de-
fendant’s competency to stand trial: and
(3) appellate counsel's failure to raise al
leged unconstitutionality of lineup identifi-
cation obtained in absence of defense coun-
sel after arraignment did not constitute
ineffective assistance of appellate counsel
ff 4 "
Affirmed, petition for writ of habeas
— « 4 . , “A474 . :
pus demied, previously granted stay of
a> +? — , .
DbarKe col rrec spec ily with
l. Criminal Law 9928/3. 123
Ulaims which were or could have beer
nsicered under direct appeal were barred
‘ _
r r nm erat nr an. ne. 1m tenor
n relief
2. Criminal Law 99816
| » ~ C dice :
iAarning disabilities Passive and de
‘
é persona anc mp ‘ aiff sé
, orair carr ape G not wher laker
. ff
f ne Suliicient rais¢ 4 ¢
wo postconviction petitioner pete
I
4 ctannd te
4
Criminal Law 641.132. 6
on
ir Cc nse wa not neffect ‘ ir
f ‘
i k i JSe ft cniatrist nh cor ng
, ? & *
P ,
‘ e of jeter int menta Tele npeter
no *¢ a =
4 & W ile number of pretnal s ippres
‘
m me r and fa ng to object to cer
‘ at a all
a a 0! proceeair severa
apre of tna error Inve veo either strat
:
‘ ,
pie wr “ ] Nave beer r Ipp rts
record or actinr pursued f ving
trats pi of lof é { A
Fat, ‘ Ame na. ¢
Criminal Law €641.13(1)
‘ ¢ ‘ ‘ .
Fa na ria trats pie re pits
r ’ Ys aug — , inef fe ‘ P ‘ ‘
.
‘ s { A Const A er t
Criminal Law 641.1317
P
\y 4 ‘ f t r
yr ‘ of Neu: ‘if
}
af } mn ahez e of def , .
¢
f liter rraig ‘ q not constituts
re
-nudnteeete ae oe
=
ih Ded at
_-
on, te
410 Fila 505 SOUTHERN REPORTER, 2d SERIES
ineffective assistance of counsel; identifi
cation served only to link defendant tw
crime, and link had already been estab
lished by defendant’s admission. U.S.C.A
Const.Amend. 6
Larry Helm Spalding, Capital Collateral
Representative Mark E. Olive, Litigation Di
rector and Billy H. Nolas, Staff Atty., Of
fice of Capital Collateral Representative,
Tallahassee, for petitioner/appellant
Robert A. Butterworth, Atty. Gen.,
and Richard G. Bartmon, Asst. Atty. Ger
West Palm Beach for respondent apy ilee
PER CURIAM
John Ear! Bush, a day before his sched
uled execution on April 22, 1986, filed i
the circuit court a motion for post-convi
tion relief under Florida Rule of Crimina
Procedure 3.850 and a motion for stay
execution, and in this Court filed a petition
lor a writ Of habeas corpus and a Stay ol!
. ; y Th eeriset ; ¥ 7, | r
execution ne circull court denied ali re
f } . s : y T
lel without an evidenwUary hearing ini
Vourt granted a stay of execution on Apr
21 in order to allow a careful review and
consiaeration oO! certain ciaim raise
Bush's appeal! of the circuit court’s denia
of , 7.7. motio " ; writ fi -
nabea corpus We have exer é r
ncuon under art e V. sect { il
j riornda Constituli and now i!
Dbusn entutied ne reil
B Wa ( ’ ted N é [ =
I fir ct re I if r ar ‘ r ’ A
4
- ng A jury re
pe { fa ‘ e of eat? |
was So sentenced. We affirmed the co:
tion and sentence in Bush v. State, 4
50.20 II r IS4 ert. denicd I
1 Ot ] BY L.Ed.2d 34 IRE
U March 2 Lat the governor prime ‘
war authorizing Bi execu ind
I ipt re ‘ I i! t? ‘ r
[1] We sna lirst exan i Live i
ruised in the 3.500 mot Ul U eve
Clu ruis¢ Lhe re t! i I r either
were or ¢ uld ? ve Deen oI ered }
ré appeal and are therelore now barre
fy COI! lera P wher fa iv
~ } i le (J C¢ J ‘
161 So.2d 1354 (Fla.1984). We now exam
ine 1) whether Bush was prejudiced by a
“professionally inadequate” psychiatri
evaluation which failed to disclose his a
leged incompetency to stand trial, 2) wheth
er Bush was in fact tried while incompe
tent, and 3) whether counsel at tral ren
dered ineff
terms of Stnckland v. Washington, 466
U.S. 665, 104 S.Ct. 2052, 80 L.Ed.2d 674
ective assistance withir the
(1954
T} firct r | bo
iit ’ io ad i> st rai € s a xy eS mu
i ; Yo? " ~ a — ¢
fal vogetner, aS @€acn lacks a cCruciai [0u!
, ar ; isnot = .
datior i fact 42ny indaicauor Ol Bust
y " , : »f, “-
incompctency to Star d trial Before tria
beiow, the defense moved for the app
- , f . . . . .
mer Ol a psSychiatric expert in order
evaiuale the delendant ( ipe le a
? ¥ . >
tine pe e appix abdill ir iT ga k
- iar . ter enor , . ‘
hs ‘ A c Cy m Witdi wi ‘
the expe and counsé ciuced tha ir
‘
thie ‘ aminad “ | pr we U
inlorma We cal I efror
Lac i reachec Da
é é ~ Du 4
P
el Wau
‘ cP U eXpe r A
t ‘ cA A SS " 4 at
' ‘
Ju * '
CR ~ . — is
{ / / : +
. wA i ‘
r e} -
ut a
‘
‘ a ‘ ‘
ed 7 r (
12 .
Le We I ‘
sLance I U Ca 4 ‘
1 e « 4 t t
: | > ‘
k ff .
“ : at © pre ira
! i | ‘ A I urea ‘ eyrre
h _
i " i :
634 (h > re
( i re r rel ‘ ‘
| ) , ’
wa pe i ria
U } \ . [ i if ‘
‘ y | t { al S
4 - .| ~
‘ st r ' / \
‘ ~
; I ’ i ‘
re | ul t ! pre [ m cw
BUSH v. WAINWRIGHT la. 41]
Cite as 505 So.2d 409 (Fla 1967)
appointed psychiatric expert offers only (Fla.1982). In sum, we find no deficient
weak support to Bush’s claims. The nu- performance prejudicing Bush, Knight +
merous psychological problems now point State, 394 So.2d 997 (Fla.1981), and so re
ed out, such as learning disabilities, a pas ject this claim
siv d ty j si ’
se dependent personality, and pos [5] Finally, we turn to the claim of inef
ble “diffuse organic brain damage” do not Bn atitnn P ¢ ’
fective assistance of appellate counse
when taken together, sufficiently raise 2
£ “ © ® raised in Bush's petition for a writ of habe
as corpus. Prejudice resulted, it is argued
when appellate counsel failed to raise the
valid question as to Bush's competency t
stand trial. See James v. Statc, 489 So.2d
737 (Fla.) cert. denied, — US. - i0¢ ; :
pen ey “a alleged unconstitutionality of a lineup ider
>.Ct 323 91 LEd.2d 574 (198¢ We ¢ 7
tufication obtained in the absence of de
therefore reject the first two claim: P
. fense counsel after arraignment
* In ¢rrering ¢ ; ity f is ‘fr
3, 4} i Wil x A wne Cia c Te K he _ 4 +} ;
j nig we required a showing i
tve assistance of trial counsel, we scrut — ; ¢ “ ]
e alleged deficiency considered under
moe the « —_— e _ :
e the allere nacequacies uncer the test
} 1 } \ +} misens ‘ . ‘ _
. the circumstances of the individual cas«
set f ru r Strick ond n nM aierces tr '
‘ iG i 7) : ; w: c hetantial NO! 4 dem netes* »
" a udSsStanUa!l enougn to emo! ie a
C nse| was ineffective tinier 1 : ; ,
prejudice to the defendant to the extent
> . *> s > ee > “— F 9
s ‘ <VvC rc 4 cor Tr
k U ‘ id ‘ hat o liibkal
f that there is a likelihood that the deficient
€ ence of the defendant's mental ir rT tt > 6]
P P nauct affected the outcome of the court
ne » + ‘
at, ia n¢g ty ear "her re ria ’
J ‘ t } . ’ _ : as .
proceedings 394 So.2d at 1001. No suct
s - — ond . ‘ al ‘
4} I a 14 { f ‘ ; ' .
p prejudice exists when the argument cor
ert ca a ~ on f the nrrw ee ; r ¥
“a ‘ . _ _ }
r : red in light of the case's fact
- ‘ +} ‘ a ‘
at ‘ ria A Te i
os Rush never contested his narticinat
run a f al ; pa ' a
the erims only the extent and nature f}
rir +} jefendar mu <} " that y i. afiGg aU i
£ » r vement secausé the identificat
nse per ormance wa Je! er
ope served oniyv to link him to the cmme, ar
if re re sr ¥ np tr at cc r € mace '
tr nk Nac aiready been esta! ne
errnr c serv < that c nce wa r
a ’ ‘ , r admissior supy ressior of the re
ya : inse guaranteed ‘
‘ dias 4 ‘ ‘
ide 1 wou r } ‘ a Pr
the defendant } he Sixth Amendmer 7
Sn dens « that 3 his defense. We can perceive r
‘ aete ia 4 ENOM 4
nafftant ‘
‘ ‘ ene r ryTry ‘ C i
the ef r erformance nr lired the a ‘ 3 j r :
| ] | 1G
tana ‘ , y r
- A J AV! a . ’
efenc 1 requir } wing tha , - ‘
, ‘ . , > ¥ ’ ’
2 ‘ - ‘ 4
¢ errors were er j ; ts ahd .
f ‘
" ever er ’ }
‘ rive ‘ 4ofer jant £ fa r tria 4 pre w . ,
2 +} _ ‘ th, ace
r wr © re 11% re annie nie
f 4 ‘ f
eter ant ake > +} chow ng Ca r yer pa or re ‘ | r
not be said that the conviction or deat uor for post-convicwior relief, we affirn
entence re ted fror a vreaxkaowT r the triai ¢ rt aenia of } ~ r t
the adversar proce that render the t e tne layrment and f f
re t unreliable the pet n for wr f hah ,
7 . . ‘ ‘ f ‘
4 ~ £ at ? vs 4 | ‘ mn cars z review 7 ‘ ‘ f r ‘ Py
r rmine tr t r re ‘ the 2 y .
Z na a 5
nm ¢b Case fa it je the " aes
pe of pre fe naiiy compets
nee Id. at 206f The claimed error M ONALIT .
7 ;
‘ r ‘ either strategn. wr } EH] CH a HAY
, P 7 T> y r
“ r ‘ Hee; nsupports thie ees. re r
P » « 7 the menta r r ets ant ~rvr ,
BARKET ‘ ,
rT f above, or actior pursu¢
wing } stratepic f th, t,
mat —
t ‘ rm
he f that these strategies results I RP} f
‘ { r r neff ‘ | , ‘
nee y fy 4 44 r r f
412 Fila 505 SOUTHERN REPORTER, 2d SERIES
I concur in result only in the majority's quately pled factuai allegations this Court
affirmance of the trial court’s summary should “suspend” the requirements of Rul
denial of defendant’s motion under Rule 3.850 to either append the pertinent por
3.850 While | agree that most of the tions of the record or grant an evidentiary
issues raised were not cognizable on a mo hearing
tion for post-conviction relief, I do not First, as I previously stated, | do not
agree with the majority's treatment of think this case involves that portion of the
Bush's claims of ineffective assistance of rule which pertains to the necessity !
time of factual findings either from the record or
counsel and incompetency at the o!
trial from an evidentiary hearing
. , Second, if this were a case which present
There are only three possibie dis pos iuions on , .
ed any legitimate factual issue ne
available to a trial judge in ruling on a
. . . should be resolved by the tma! court
850 motion: (1) The judge may deny the '
‘ ; cannot fault reviewing the record as a
motion because it is insufficient as a mat
. extra precaution wher
ter of law to support the defendant's ,
require it However wher ne mowuon cado«
claims; (2) The judge may deny the motion poy
4 . require iOOKINE al Wwe record, appeiliau
‘ " y " . vel, > “Cw
if the clam are conclusively refuted by 1 , i
. view should T serve 4 A SU s
the record { St attac ose portior '
record, but must attach those portion the trial court initial review Id
‘ 7. / : . Pe " Fort "
Of the record which conciusSively refute the helieve that a a reviewing r "
le , ‘ 2 ° " ro /; ;
alepaviol (od The judge must grant a should arrogate the fu ti f fa
. lg ‘ " > } ig '
evidentiary hearing tw resolve any iegi ng
Ing
imate factual claims that are not conclu ' t.
LaaS UY nh Freviewlh; a Fe r r
frre
sively refuted by the record -annnt }
Cal rea { U J J
Ir tr | t hal *} iofoandA that re ec ir + ‘ P
fil Casé¢ Go not beleve ne elé j | i i ms |
nt y f a . ‘ ]
al na met ni Durden oO! alleging fa ; ‘ . ‘ Ad
which would support a ciaim for rele! ty SIS wile
. as ,
Bus} anegation of inef fe live a “i ’ eT é w ‘ ‘
( couns¢ go not meet the standard I CApe 4
,
; na a whingotor 46¢ | Hh» cA . sad
‘yy
; { |
1S.Ct. 2 8U L.Ed.2d 674 (1984), nor :
a j }
ré here ff ent eg " ti r j r Wu evide ea i
] sneyau pI
° ‘ \ ,
ting " of " y peter : At be Bust ise V¢ eT ria
eg that il eX 4 , " } té tify th ’ 4 eX De ‘ ]
based upon a rrent evaluation “Bu ‘an nite - , ,
, ’ y ’ ’
“ ‘
‘ ré rejrar li Le lie i
f " . ‘ r la i
j A We i Aj Val t t
’ r | '
» e tf
ny a i t w ] eal j y ie) 4 t i D©@ Ley i ‘
‘ ' tar } ; ; ‘ be cpa il ria "
Ol Wl mpetu ec during the tsmne i
fo) , rectly denied Bush's mouon for p
ria Thi la i r if my View [ .
+} ‘ ; ; ‘ { re et H wWwever Ww The the a eva
suUeUUaULY Ta i t ia ,UuC
ef; ,
1 ‘ reas 4 4
j ncor eto ti ta , ’ -
; 1 } tr r
VULA ; UC ‘ ria ‘
tneretore the mot n wa rrectiy dé ‘
; *> F- '?
c j LiS| Ss ¢ ‘ ‘
4 1 matter | law See Jame l
‘ | r r }
‘ ) " . ’ at iry cu " ve ‘
Teh) J I ‘ r{. denied
} ; .
‘ : wv
t { ; | } ' 4 ;
{ ‘ cal ‘
‘ >
My rea leparting fi ma f appellate review
r ana ire | eel By mak {
*
| Ling of fa fro! i review t —_ \— -
: aumMble »~ >
~ ‘ r ~ Ww
’ trv ’ 4) rity ip ge ’ ‘? at ~ ~~ We
NF
‘ ti il alicpat were conLlaine
‘ { ing that I Live lace ol 4
r
r
y
i
Qo
BUSH v. DUGGER Fla. 725
Cite as 579 Sold 725 (Fla. 1991)
significant mitigator); Rembert v. State,
445 So.2d 337 (Fla.1984) (one aggravator,
considerable mitigating evidence).
{11] The remaining points raised by
Young are without merit. Contrary to his
contention, trial courts may rely on presen-
tence investigation (PSI) reports. Engle v.
State, 488 So.2d 803 (Fla.1983), cert. de-
nied, 465 US. 1074, 104 S.Ct. 1430, 79
L.Ed.2d 758 (1984). The court used evi-
dence of Young’s prior adult convictions in
sentencing him on the burglary conviction,
not the first-degree murder conviction.
Moreover, the judge stated that he would
not rely on any victim impact evidence con-
tained in the PSI or on Young’s juvenile
record. The record indicates that the court
did, in fact, ignore that material.
(12) Young claims that the court im-
properly excused seventeen death-scrupled
prospective jurors, but identifies only three
of those persons. He also argues that the
court improperly refused his challenge
against a woman he claims would automati-
cally vote for death. The competency of a
juror is a mixed question of law and fact to
be decided within a trial court’s discretion
Davis v. State, 461 So.2d 67 (Fla.1984),
cert. denied, 473 U.S. 913, 105 S.Ct. 3540,
87 L.Ed.2d 663 (1985). “Manifest error
must be shown before a trial court’s ruling
will be disturbed on appeal.” Jd at 70.
Our review of the record discloses no such
error.
Finally, Young’s challenges to the consti-
tutionality and validity of Florida’s death
penalty statute have been rejected previ-
ously. E.g., Van Poyck v. State, 564 So.2d
1066 (Fla.1990).
There being no reversible error, we af-
firm Young’s conviction of first-degree
murder and sentence of death.
It is so ordered.
SHAW, CJ., and OVERTON,
McDONALD, GRIMES and KOGAN, JJ.,
concur.
BARKETT, J., concurs in result only
John Earl BUSH, Petitioner,
v.
Richard L. DUGGER, etc., Respondent.
No. 76577.
Supreme Court of Florida.
March 28, 1991.
Rehearing Denied June 12, 1991
Following affirmance of first-degree
murder conviction and death sentence, 461
So.2d 936, defendant petitioned for writ of
habeas corpus. The Supreme Court held
that prosecutor's comment during penalty
phase about how family would miss victim
during upcoming holiday was improper but
did not warrant relief
Petition denied
1. Habeas Corpus 4296, 505
Claims of error with respect to vicum
impact statements during penalty phase of
murder prosecution are generally not cog-
nizable in habeas corpus proceeding, but
such a claim would be considered where
Supreme Court did not have benefit of
United States Supreme Court decisions on
the issue when it considered the case on
direct appeal!
2. Criminal Law ¢°723(1)
Habeas Corpus ¢ 497
Prosecutor's comment during penalty
phase of first-degree murder prosecution,
about how victim’s family would miss her
during upcoming holiday, was improper vic-
tim impact statement, but did not warrant
habeas corpus relief since it was only a
single comment which did not impermissi-
bly emphasize victim’s persona! qualities or
the family’s opinions and characterizations
of the crime. U.S.C.A. ConstAmend. 8
3. Habeas Corpus ¢°296
Habeas corpus petitioner's claim that
aggravating factor was improperly applied
Mlle
oruwre
Sib nis
BUSH v. DUGGER Fla. 727
726 Fia. 579 SOUTHERN REPORTER, 2d SERIES Cite as S79 So.2d 725 (Fla. 1991)
7 oe ea + i the In Booth the Supreme Court held that [2] In comparison to the extensive vic-
in imposing death sentence was procedural. Blgbjested stosthetargument and raised the __. ri aurt Maryland's requirement that a “victim im- tim impact evidence presented to the juries
ly barred where the claim was raised ongguesue on j pal, Jn ghat decision this Court ; pact statement” be considered during sen- in Booth and Gathers, in this case the
direct appeal. rr tencing violated the eighth amendment prosecutor made only one comment about 1]
. bhecd . . e: . o o |
4. Habeas Corpus ¢=275 (Bush) argues that during the sentencing = The “victim impact statement’ in that case how the family would miss the victim dur- |
Habeas corpus petitioner's claim of in- phase the prosecutor made an appeal for ; ly of contained extensive information about “the jing an upcoming holiday. The single com- i
structional error was procedurally barred sympathy and revenge for the family of adios vous outstanding persona] qualities” ment in this case cannot compare in impact |
tions at trial the jury: —_ the family members have faced as a result ment in Booth or the use of the prayer in i
thy that Mr. and Mrs. Campbell have. Mrs. S.Ct at 2531. The neum impact tatement bly emphasize the victim’s personal quali- i Ii
| Larry Helm Spalding, Capital Collateral Don’t consider that when Mr. and Mrs. — aio prenaies Gees pe the ties or the family’s opinions and character- Bel):
Titii! Representative, Billy H. Nolas, Chief Asst. Campbell sit down to Thanksgivin Gat family members’ opinions and character. i stions of the crime. The comment was eI):
ss giving tabl tions of the crimes” including the son's ee:
ES CCR, and Gail Anderson, Staff Atty., Of. dinner just three days from now that =aee = that “his t. butch only a single statement about the family’s ain
Hl io- fice of the Capital Collateral Representa- they are going to look across the table athy ory Me eye 4 loss, a loss that juries are generally aware | |
E: tive, Tallahassee, for petitioner. and they are going to look at Cathy valle 7 o—. oy . >A wrt conceded that families feel when a family member is ois
- Robert A. Butterworth, Atty. Gen.. and and they are going to see Frances Julia k - oe “the Somat nl of this sadn murdered. Although the comment was im- ; fF
$2 Celis A. Terenzio, Asst Atty. Gen. West Slater, the identical twin sister. If es mation by the / 0a meena COS @ can say beyond a reasonable ‘s E
i 7 Palm Beach, for respondent. sympathy had any part of it, think of med urpose than to inflame the jury and divert doubt that the jury’s recommendation "25 |:
what they go through. And every P a would have been no different had it not :
back it from deciding the case on the relevant ; MP bT |
} | PER CURIAM time they sit down and look at her, this : , heard this statement. See Jackson v. Dug- el)’
| 7 a whole incident is going to b k evidence concerning Ge artme and Ge Se ger, 547 So.2d 1197 (Fla.1989).* “Ht
tht! John Earl Bush. who is sentenced come Dack fendant.” Jd Thus, such information oo
| , n to " retr?- ’ |
i death, petitions this Court for a writ of aie iieinti tates : ; the could result in a jury’s imposing the death Bush’s next claim is that this Court
yy habeas corpus. Bush was convicted of the nds that this appeal for retri- wing penalty in an arbitrary and capricious man- should vacate his death sentence and im-
; | 1982 first-degree murder of Frances Slater. mange — oe masmeen - the We ner. Jd. at 502-03, 107 S.Ct. at 2532-33. pose a sentence of life imprisonment be- :
' | We have affirmed that conviction and the a bmn poli . “ we ' “the The Supreme Court again considered cause the sentencing judge failed to issue a > f
? . ; £ e isagree. e _ . . : i |
Hl Sars en Bua See 461 have revo hl ta gh “he = —e e |
ony 1031, 106 S.Ct 1237, 89 LEA 24 345 (1986), rt ae ane abusive : n its poe another eon pan This claim is procedurally barred. Parker |
if Y and have subsequently denied an appeal! pe enee en tee deel - clear, f unces of a printed prayer as well as emphasizing ». Dugger, 550 So.2d 459 (Fla.1989). We |
from a rule 3.850' motion and a first peti- own merits and within the a os , tate other religious objects and a voter registra- also note that Bush's sentencing preceded |
rei! ton for a writ of habeas corpus. Bush 1 pertaining when the Satan amie, i. tate, tion card all found in the victim's posses- our decision in Grossman v. State, 525 }
| Wainwright, 505 So.2d 409 (Fla), cert. de- ments are made...” "Darden o- pared F dis. sion. Gathers, 490 U.S. at 808-10, 109 So.2d 833 (Fla.1988), cert. denied, 489 U.S }
HE nied, 484 US. 873, 108 S.Ct 209, 98 ao gheesbogy-s 1, 61 S.Ct. at 2209-10. The Court held that this 1071, 109 S.Ct 1354, 103 LEd2d 822 |
' it L.Ed.2d 160 (1987). We have tarisdiction thar yg ae aoe eave. dis- ) argument violated Booth because it fo (1989), and comported with the sentencing i}
| under article V, sections 3(b\1) and (9) of L.Ed. 24 15) ast , 7 S.Ct. 1671, 51 al to cused the jury’s attention on the victim’s requirements we set out in Siewart t {||
| iat the Florida Constitution Ww f e im- personal qualities and characteristics, State, 549 So.2d 171 (Fla.1989), cert de 4
|) (1) Bush -- We find that the above appeal to } cing { factors about which the defendant was un- nied, — US. ——, 110 S.Ct 3294, 111 |
‘ti ush raised four claims in this peti- the jury's sympathies was of minor im- , nor aware. Jd, 490 U.S. at 811, 109 S.Ct at L.Ed.2d 802 (1990) 1]
4) tion First, he argues that the prosecutor pact and does not merit resentencing j ante ‘ 2210-11. The information was not relevant |
, i a erage corer i Ge Gosing ap nape a clear abuse, nor ; t to the circumstances of the crime nor to the (3) Bush next argues that the cold, cal ji!
| ti aan uring the penalty phase and do they rise to the magnitude of a denial - te defendant’s moral culpability. /d. at 811- culated, and premeditated aggravating })
ra? {| . € is entitled to relief under the United of fundamental fairness. ' a ‘ 12, 109 S.Ct. at 2210-11. factor was improperly applied. This claim Hj
| | ny ty Aryl} yng Dusk, 461 S024 ot 941-42 — we t this ‘ similar procedural posture to Jackson, 3. The United States District C for the M | }
¢ e v. Ma . 496, 107 S. i ~~ 18 r + we nited States Distr ourt for Mid i!
; i 96 L E424 440 (1987 dS. hy 2628, did not have the benefit of Booth and this have chosen to discuss this claim on the merits. die District of Florida has similarly rejected {
a; : ot), and Sou rolina Gathers when we first considered. this FA CY. Parker v. Dugger, SSO So.2d 459 (Fla.1989) Bush's claims of Booth error. Bush v. Dugger
Hi Ay 490 US. 805, 109 S.Ct. 2207, case, we have decided to reconsider ‘this t ; Se Cee ee ee eee - Case No. 88-22-CIV-FiM-13 (M.D.Fla. Aug. 8
i Ai.2d 876 (1989). ’ selai sa efendant not objected to the use of the 1989)
Mk ( ). Bush’s attorney .sclaim under those decisions.? : . victim impact evidence at trial). However, we
1. Florida Rule of Criminal Procedure 3.850 (Fla.1990); Jackson v. Dugger, 547 So.2d ‘ shane 3 Nee deen ec wleetion when the prow, *", Pursuant to the directions of this Court, th |
Pe . ’ , T, : 1197, o beas : . Oo ¢ directions of this Court, the |
1199 n. 2 (Fla.1989). pom dl in Jackson this . Acally . occurred — jury selection, — ok judge subsequently incorporated his ora! find
: 2 Claims of error under Booth v. Maryland, 482 Court considered the Booth claim during habeas : ay on Cuter Was Ging prespeseve juress S tasy Snow ings into a written sentencing order
{| j US. 496, 107 S.Ct. 2529, 96 LEd.2d 440 (1987), proceedings because this Court had 6: } 7¢ } members of the victim's family, because the 1
| are generally not zabl habeas “a specifically , us in ; defendant did not object. ’
| . y : cogni cina corpus approved the introduction of the testimony on ;
| proceeding oberts v. State, 568 So.2d 1255 direct appeal. Because this case comes to us in , | '
H | '
——<
NmANe NTN Ac.
Mnyveentt Ur
728 Fila
is procedurally barred because Bush raised
the claim on direct appeal. Bush's reliance
on Maynard v. Cartwright, 486 US. 356,
108 S.Ct. 1853, 100 L.Ed.2d $72 (1988), is
misplaced. Brown v. State, 565 So.2d 304
(Fla.), cert. denied, — US. ——, 111 S.Ct
537, 112 L.Ed.2d 547 (1990).
(4) Finally, Bush claims that he is enti-
tled to relief because the penalty phase
jury instructions unconstitutionally shifted
the burden of proof to him to prove death
was not the appropriate penalty. This
claim is procedurally barred because Bush
did not object to the instructions at trial.
We also note that the instructions were not
erroneous. Bertolotti v. Dugger, 883 F.2d
1503 (11th Cir.1989), cert. denied, — US
—, 110 S.Ct 3296, 111 LEd2d 804
(1990
We deny the petition for habeas corpus
It is so ordered
SHAW, C.J., and OVERTON
McDONALD, BARKETT, GRIMES
KOGAN and HARDING, JJ., concur
STATE of Florida, Petitioner,
.
Michael! DONALDSON, Respondent.
No. 76129.
Supreme Court of Florida
May 9, 1991
Defendant petitioned for writ of certio
rari from determination of the Circuit
Court, Palm Beach County, James T. Car-
lisle, J., which affirmed defendant's driving
under the influence conviction in County
Court. The District Court of Appeal, 561
So.2d 648, granted writ, and question was
certified. The Supreme Court, McDonald,
J., held that breathalyzer test results were
579 SOUTHERN REPORTER, 2d SERIES
not admissible where no testimony on relia-
bility or integrity of machine was offered.
Question answered.
1. Automobiles €=422
In order for breathalyzer test results
to be admissible, there must be probative
evidence that test was performed substan-
tially in accordance with methods approved
by Department of Health and Rehabilita-
tive Services, and with type of machine
approved by Department, by person trained
and qualified to conduct it, and that ma-
chine itself has been calibrated, tested, and
inspected in accordance with Department
regulations to assure its accuracy; evi-
dence of reliability of machine can be
presented by person conducting its testing
and inspection or, if records of use and
periodic testing are kept in regular course
of business, by production of such records
West's F.S.A. § 316.197
2. Automobiles ¢=424
Minor deviations in compliance with
regulations, such as storage location or ab-
solute timeliness of periodic inspection, will
not prohibit breathalyzer test results from
being presented, provided that there is evi-
dence from which fact finder can conclude
that machine itself remained accurate.
West's F.S.A. § 316.1934(3); F-.S.1987,
§ 316.1932(1\b)1
3. Automobiles €=422, 423
After State presents breathalyzer test
results, defendant may, in any proceeding,
attack reliability of testing procedures and
qualifications of operator; defendant also
may question compliance with departmen-
tal regulations and effect on machine's in-
tegrity of failing to follow them strictly
4. Automobiles €=424
Breathalyzer test results were not ad-
missible where State presented no testimo-
ny on reliability or integrity of machine
used
David H. Bludworth, State Atty. and
Robert S. Jaegers, Asst. State Atty., West
Palm Beach, for petitioner
————
FILEL
UNITED STATES DISTRICT COURT ao rejected this claim since a change of testimony is not a discovery
MIDDLE DISTRICT OF :FLORIDA
FORT MYERS DIVISTON © 31°" "BS violation meriting a Richardson hearing; the change of testimony
Minis. _ | :* did not result in an absolute legal necessity for a mistrial; the
JOHN EARL BUSH, discrepancy may have arisen from defense counsel’s use of two dif-
Petitioner, ferent questions and testimonial discrepancies are to be resolved
Vv. Case No. 88-22-CIV-FtM-13 by the jury and, when offered by witnesses for the prosecution,
RICHARD L. DUGGER, inure to the benefit of the defendant.
Florida Department of
Corrections { (2) Bush claimed his four statements to the police were not
Respondent. voluntary but were procured by improper influence and without the
benefit of a proper warning pursuant to Miranda v. Arizona, 384
ORDER U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Specifically, he
On the morning of April 27, 1982, four men ‘abducted Fran- alleged officers coerced his confession by minimizing his role in
cis Slater from a convenience store where she worked. Her body was the crime. The court rejected this claim since a confession is
found later that same day, some thirteen miles away. It evinced a not rendered inadmissible by the interrogator’s assurance that it
Stab wound in the abdomen and a bullet hole in the back of her would be easier on the accused if he told the truth, see Parz~cre
heac. She had been robbed of $134.00. John Earl Bush was tried v. State, 229 So.2d 855, 858 (Fla. 1969) and since police state-
for the crimes in November of 1982 and was convicted, by jury, of ments minimizing Bush’s actions were not unconstitutionally ccer-
first degree murder, armed robbery and kidnapping. By a vote of cive. See e.g., La Rocca v. State, 401 So.2d 866, 868 (Fla. *: °-A
7-5, the jury recommended that Bush receive the death penalty for | 1981).
his role in the murder. Said sentence was imposed. Bush appealed | (3) Bush claimed the trial judge erred by admitting into
his conviction and sentence to the Florida Supreme Court. See Bush | ss evidence gruesome photographs of the victim’s body which may have
v. State, 461 So.2d 936 (Fla. 1984). The appeal raised ten clains: ? prejudiced Bush’s effort to get a fair trial. The court rejected
(1) Bush claimed an investigator’s testimony contradicted an | this claim since relevant photographs are admissible. See State
earlier deposition and therefore he, Bush, was entitled to a mis- | Wright, 265 So.2d 361, 362 (Fla. 1972).
trial or at least a hearing pursuant to Richardson v. State, 246 | (4) Bush claimed the trial judge erred in excluding a poten-
So.2d 1149, 1151 (Fla. 1979). The trial judge granted neither and tial juror on a challenge for cause. The court rejected this claim
Bush claimed the refusal was in error. The Florida Supreme Court |
I
'
tr
!
since a jury venireman may be excluded when he demonstrates an “un-
mistakably clear” attitude toward the death penalty which would
prevent him from making an impartial decision as to the defendant’s
See Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770,
20 L.Ed.2d 776 (1968).
guilt.
When asked by defense counsel, “Do you
think you could do it [impose the death penalty], put sympathy out
of your mind and base your verdict on the law and the evidence?,”
the juror responded, “No, I don’t think so.”
(5) Bush claimed he was prejudiced by not knowing whether the
state would proceed against him on a theory of actual murder or
felony murder. The court rejected this claim based on Knight v.
State, 338 So.2d 201 (Fla. 1976) wherein it held’ that an indictment
struction for third-degree murder.
charging premeditated murder would permit the state to proceed on
either theory.
(6) Bush claimed the trial judge erred in not giving an in-
The court rejected this claim
Since third-degree murder is defined as “the unlawful killing of a
human being, when perpetrated without -ny design to affect death,
by a person engaged in the perpetration of, or in the attempt to
perpetrate any felony other than,...robbery...[{or]...kidnapping-
~++-” Section 782.04(4), Florida Statutes (1981) (emphasis added).
(7) Bush claimed the Florida capital sentencing statute is
unconstitutional. The court rejected this claim based on Proffitt
v. Florida, 428 U.S. 242, 252, 96 S.Ct. 2960, 2966, 49 L.Ed.2d 913
(1976).
(8) Bush claimed he was prejudiced by repeated instructions
to the jury to the effect that a sentencing decision requires a
majority. The court rejected this claim since the trial judge ex-
pressly corrected himself by explaining: “if by six or more votes
the jury determines that [Bush] should not be sentenced to death,
your advisory sentence will be [imposition of a life sentence].”
Bush v. State, 461 So.2d at 941.
(9) Bush claimed the trial judge erred in not instructing the
jury during the sentencing phase that death may not be imposed ab-
sent an intent to kill or contemplation that life would be taken.
The court rejected this claim since the facts showed Bush to be a
“major, active participant...[{whose) direct actions contributed to
the death of the victim” and were enough to establish the requisite
intent. Id. at 941.1}
(10) Bush claimed he was prejudiced by prosecutorial appeal to
sympathy for the victim’s family. The court denied this claim
since the statements made wer~ not clearly abusive, nor did they
arise to a denial of fundamental fairness.
Accordingly, the Florida Supreme Court affirmed Bush’s con-
viction and sentence on November 29, 1984--some two years after
Bush moved for rehearing. Rehearing was denied
Bush v. State, 461 So.2d 936 (Fla. 1985). Bush
filed a Petition for Writ of Certiorari with the United States
their imposition.
January 31, 1985.
lfne Court notes that the finding of “intent” necessary to
sustain imposition of the death penalty can be made by the trial
judge or an appellate court as well as by a jury. See Cabana v.
Bullock, 106 S.Ct. 689 (1986).
- 4-
— —.
:
Bush v. Florida, 106 S.Ct. 1237
Florida’s Governor signed Bush’s first death warrant on
Supreme Court; it too was denied.
(1986).
March 20, 1986. Execution was scheduled for April 22 of the same
year. On April 21, Bush moved for a Stay of Execution and filed a
Motion to Vacate his Judgment and Sentence pursuant to Fla. R.
Crim. P. 3.850. Both motions were denied by Chief Judge Cc.
Pfeiffer Trowbridge, Nineteenth Judicial Circuit in and for Martin
County, Florida. Mr. Bush filed an immediate Petition for Writ of
Habeas Corpus in the Florida Supreme Court appealing the denial of
his Motion to Vacate Judgment and Sentence. The Florida Supreme
Court granted a stay of execution to consider Bush’s claims. He
raised seven: :
(1) Bush claimed he received ineffective assistance from his
appointed counsel in violation of the standards which the Supreme
Court enunciated in Strickland v. Washington, 466 U.S. 688, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Upon consideration, the court
rejected this claim since none of the alleged omissions fell out-
side the wide range of assistance deemed professionally competent.
(2) Bush claimed he was prejudiced by a professionally inad-
equate psychiatric evaluation which failed to disclose his alleged
incompetency to stand trial. The court rejected this claim finding
no evidence that Bush was incompetent to stand trial.
(3) Bush claimed he was incompetent to stand trial. The
court rejected this claim finding no evidence to support it.
(4-7) The court rejected without enumerating the remaining
four claims since they could have been raised on direct appeal and
were therefore procedurally barred from collateral attack. @
Accordingly, the Florida Supreme Court denied the petition on
February 26, 1987. Bush filed for rehearing and rehearing was de-
nied, May 8, 1987. Bush filed another Petition for Certiorari with
the United States Supreme Court; it too was denied, October 5,
Bush v. Florida, 108 S.Ct. 209 (1987).
On January 8, 1988, Florida Governor Bob Martinez signed the
1987.
petitioner’s second death warrant. The execution was scheduled for
February 3, 1988. On February 1, Bush filed the instant action: a
17 claim, 245 page federal habeas corpus petition claiming that his
constitutional rights had been violated before trial, during trial,
at sentencing and on appeal. Specifically, the petition reasserted
the arguments asserted before the state courts and argued, inter
alia, that Mr. Bush was a “victim,” that the lawyers with which he
was provided were ineffective, that his prosecutors set him up, his
police interrogatories coerced his confession, his jury was con-
fused about its role and his judge allowed illegal evidence to be
admitted against him. This Court stayed the execution to allow
itself time to consider Mr. Bush’s claims. Ultimately, the Court
granted Bush a hearing to consider his claim that he was deprived
2Those claims were (a) that the state misled the jury by the
presentation of false evidence and argument; (b) that the prosecu-
tor’s closing argument at the penalty phase was inflammatory and
highly prejudicial; (c) that the penalty phase jury instructions
diluted the jury’s sense of responsibility; and (d) that Florida
imposes the death penalty in an unconstitutional, racially-biased
manner. See Initial Brief of the Appellant, State Court Collateral
Proceedings, at i - iii.
76
of effective assistance of counsel at the sentencing phase of his
trial. The Court now renders its decision as to each of the al-
legations:
While the petitioner has raised a plethora of issues before
this Court, his petition is based primarily on his claim that he
was deprived of effective assistance of counsel at all stages of
his prosecution and sentencing. It is therefore necessary to set
| out the events which led up to his sentencing (paying particular
| attention to the assistance provided by trial counsel) and to set
out a standard against which the Court is to determine whether the
assistance rendered was constitutionally defective. The two will
| be done in reverse order.
A. iv ssi ce
To prove that his legal representation was so defective as to
| require a reversal of his conviction or his sentence of death,
petitioner must do two things: he must prove that his lawyer’s per-
_ formance was deficient--that is, that performance fell below an
objective standard of reasonableness--and he must show that the
| deficient performance prejudiced the outcome or the defense.
nd v. W in , 466 U.S. 668, 687-88 (1983). Counsei’s
standard is that of “reasonably effective assistance within the
wide range of competence demanded of attorneys in criminal cases.”
| Id at 687 and 690. See also Thomas v. Wainwright, 787 F.2d 1447,
1449 (llth Cir. 1986).
Judicial scrutiny of a counsel’s performance must be highly
deferential. The court’s every effort shculd be made to eliminate
the distorting effects of hindsight, to reconstruct the circumstan-
ces of the challenged conduct, and to evaluate that conduct from
counsel’s perspective at the time. Strickland, 466 U.S. at 689.
The court must indulge a strong presumption that counsel’s conduct
“falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action might be considered sound
trial strategy.” Id. See also, Darden v. Wainwright, 91 L.Ed. 2d
144, 160 (1986).
These standards require no special amplification in order to
define counsel’s duty to investigate. Strickland, supra at 690.
A criminal attorney has the duty to investigate, but the scope of
investigation is governed by a reasonableness standard. Mitchell
v. Kemp, 762 F.2d 886, 888 (llth Cir. 1985) cert. denied 107 S.Ct.
3248, 97 L.Ed. 2d 774 (1987). The duty is to make reasonable
investigations or to make reasonable decisions which render par-
ticular investigations unnecessary. Id. See also Strickland,
supra at 691. The reasonableness of a counsel’s actions may be
determined or substantially influenced by the defendant’s own
statements or actions. Id. at 691. While counsel may not refuse
to search the defendant’s background before sentencing, see e.g.,
Thomas, supra, counsel has no absolute duty to present mitigating
character evidence at the sentencing hearing and the decision not
to do so may be a sound strategic one. tan v. Zant, 697 F.2d
76
955, 961-62 (llth Cir. 1983) cited for support in Mitchell, supra
at 890 (llth Cir. 1985).?
However, even if petitioner’s counsel made a professionally
unreasonable error, neither the conviction nor the sentence will
be overturned if the error had no effect on the judgment. Strick-
land, supra at 691-92. The claim that an attorney’s performance
was deficient is subject to the general requirement that the
| defendant affirmatively prove prejudice. Id. at 693. A defendant
need not show that his counsel’s deficiencies “more likely than
/ not” altered the outcome in the case. Id. But it is not enough
for him to show that the errors had some conceivable effect on the
3In Mitchell, the 11th Circuit held an attorney was not in
error for failing to present mitigating background evidence at the
| Capital sentencing hearing where (1) the attorney spoke with the
defendant about his background, (2) the defendant discourayed the
| attorney from looking into his background, (3) the attorney con-
_tacted the defendant’s father and found him unwilling to offer any
assistance, and (4) the attorney believed the possibility of find-
ing anything in the defendant’s background that would help the
_d@efense was nil. Mitchell, supra at 889. The Mitchell court found
_ it significant, however, that the attorney did not just blindly
follow the defendant’s direction, but made an independent evalu-
ation of the usefulness of character witnesses by an in-depth con-
_ versation with the defendant. Id. at 890.
| Likewise, in Burger v. Kemp, 97 L.Ed. 2d 638 (1987) the U.S.
Supreme Court held that an attorney’s failure to investigate the
accused’s background more thoroughly and to present in mitigation
the facts of the accused’s unhappy and unstable childhood, did not
constitute a denial of the accused’s Sixth Amendment right to
effective assistance of counsel where the attorney’s actions were
supported by reasonable professional judgment. That judgment was
supported by the counsel’s decision that evidence of his client’s
background would not have minimized the risk of his receiving the
death penalty and, in all likelihood, would have opened doors for
the prosecution that, from the defendant’s perspective, were best
left unopened. Id. at 653-58 (evidence of the background would
have undermined the defense theory that the defendant was under the
dominion of another defendant on the night of the murder). Id. at
656-57.
-- —. -
outcome of the proceeding. Jd. He must show that there is a
reasonable probability that, but for the unprofessional errors, the
result of the proceeding would have been different. Reasonable
probability is a probability sufficient to undermine confidence in
the outcome. Id. at 694.
If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, that course should be fol-
lowed. Strickland, supra at 697.
B. Facts Relevant to the Defense
In October of 1974, John Earl Bush was sentenced to 30 years
in prison for the rape, robbery and kidnapping of a nineteen year
old woman. In his trial for those offenses, Bush was represented
by an attorney named “Schopp” who was originally appointed to rep-
resent him in his trial for the murder, robbery and kidnapping of
Miss Slater. Mr. Bush objected to Schopp’s representation in the
Slater case, and attorney Lee Muschott volunteered for the co upon
Judge Trowbridge’s request that he do so. (H. at 350-51).7% At that
time, Muschott had been an attorney for eight years (H. at 292 ana
had experience with capital cases (H. at 350). From the start, he
analyzed Bush’s case as one in which the prosecutor’s would seex a
penalty of death. (H. at 352).
4Throughout this opinion, “H. at _” is a reference to the
page number of the transcript of the Evidentiary Hearing held by
this Court on January 4-6, 1989. “Petition” refers to Mr. Bush’s
Petition for Federal Habeas Corpus relief. “SR” refers to the
state’s initial Response to the Petition. “”R” refers to the trial
record. Other references are made more explicitly in the text
--«
- 10 -
:
Mr. Muschott met with Schopp and learned of the circumstances
surrounding Bush’s prior conviction for rape. Mus-
(H. at 298).
chott characterized them as “horrendous.” He also reviewed the
court file (H. at 296-98) and learned that the rape victim was left
traumatized and in need of psychiatric care for several years after
the incident. (H. at 365). The similarity between crimes was
striking: both involved the kidnapping, robbery and assault of
young, white females with the assistance of accomplices. (H. at
364-66). And in both instances, there was evidence to implicate
(Id. )
circumstances were also known to prosecutors Stone and Midelas; and
the leadership of one John Earl Bush. Those “horrendous”
Muschott believed that if the facts relating to the earlier
kidnapping, robbery and rape, were made known, during the sentenc-
ing phase, to a jury that had just convicted Bush of kidnapping,
robbery and murder, Bush’s chances of avoiding the death penalty
would be nil. (H. at 364-66). A key element of Muschott’s stra-
tegy was to prevent Stone and Midelas from getting before the jury
any of the specific details of Bush’s prior offenses. (H. at 364-
65).
In addition to meeting with Schopp, Muschott met with W.Cc.
Bush, the petitioner’s brother, and spoke with “im several times
prior to trial regarding the petitioner’s background. (H. at 299-
300). Muschott told W.C. Bush that other family members could
contact him (Muschott) if they wished. (H. at 299-300). Muschott
also met with W.C. Bush, Sr., petitioner’s father (H. at 302), with
Georganna Williams, petitioner’s girlfriend (H. at 312), and with
- ll-
Moses Mitchell, petitioner’s brother-in-law (H. at 310) to discuss
various aspects of the case and of Bush’s background. Mr. Muschott
specifically discussed the possibility of mitigating circumstances
with Bush’s brother and his father and asked them both if they had
anything to offer. (H. at 366). They did not and, according to
Muschott, indicated that they did not wish to testify on Bush’s
behalf (i.e., at the sentencing phase). (H. at 367). Bush himsel
told Muschott that he did not want his father to testify. (H. at
367). Throughout the course of these various meetings, and during
the more than 20 meetings Muschott had with Bush himself, Muschott
become familiar with Bush’s familial and educational history (H. a
300) and learned of Bush’s problems in prison, including his re-
peated rapes and his subjection to physical abuse. (H. at 343-44,
396).
At a status conference, Muschott requested and received the
appointment of a Dr. Tingle to help him evaluate the possibility
of developing defenses or mitigating factors based on Mr. Busn’s
psychiatric profile.
defense-oriented reputation. (H. at 322, 377-78). Im Muschott’s
words, Tingle was more “liberal, if you will, in terms of the ¢ce-
fense position....” (H. at 378).
perienced investigator (Hershel Thompson) with whom Muschott had
had a prior, satisfactory working relationship. (H. at 352).
Thompson met with Bush on a number of occasions and reported back
to Muschott with whatever information he had obtained. (H. at
354).
Muschott reqvested Dr. Tingle because of his
f
—
-
The court also appointed an ex-
Prior to Muschott’s appointment as Bush’s counsel, Bush gave
four statements to the police, the fourth of which was against the
advice of then appointed attorney Schopp. (R. at 811-12).° In the
first, Bush denied any involvement in the Slater abduction, but he
said that, on the night of the murder, he had given a ride to three
men whom he did not know. (R. 690-91; SR at 15). He also claimed
he had an alibi. (R. at 707-08, 728-29). When officers took Bush
to West Palm Beach to verify this alibi, Bush withdrew the defense
and volunteered a second statement in which he admitted that he,
| Pig Parker, Alphonso Cave and Terry Johnson had gone to Ft. Pierce
_ with the intention of committing robbery and that the four had ab-
| ducted, robbed and murdered Miss Slater. (R. 749-55; SR at 16).
Bush denied that he had stabbed or shot the victim; he denied that
/ he knew who’s idea it was to kill her, and he denied that he had
| seen anyone with a knife. ld.
Bush gave his third statement later that same evening after he
| and the officers had returned from West Palm Beach. Therein he ad-
mitted driving the get-away vehicle, owning the murder weapon and
| disposing of it the next day of his own accord. (R. at 761-81; SR
at 17-18). He also admitted that he had received part of the rob-
bery proceeds. Id. Although Bush stated that he had been drinking
on the night of the murder, he indicated that he had not been
drinking as much as the others and that he knew what he was doing
at all times. Id. Bush was subsequently arrested and jailed. On
or about May 7, he sent a note from jail indicating that he wanted
“The statements were given between May 4th and 7th, 1982.
- 13-
to see a sheriff in order to “get it straight.” (R. at 797; SR at
18). Sheriff Holt advised Bush that he had to contact his attorney
before he could make any statement. Bush responded, “[n]jotify hin,
I want to tell my side.” Jd. Attorney Schopp advised Bush not to
make any further statements but Bush insisted. (R. at 798-801; SR
at 18-19). In his f*-srth statement, Bush admitted that he was the
one who stabbed Francis Slater but said that he had “faked” it in
an effort to get his cohorts to leave her alone. (R. at 820-22; SR
at 19). Although Muschott objected to the admission of each of the
four statements at trial on the grounds that they were not freely
and voluntarily given, each objection was denied. (R. at 626, 640,
649 and 667). Faced with Bush’s prior admissions, and with Mus-
chott’s own conclusions (discussed below) that Bush was competent
and that he had assumed a leadership role in the Slater murder as
well as in the 1974 rape of the nineteen year old, Muschott decided
that his best defense (and his best chance of avoiding the death
penalty for his client) was to argue that Mr. Bush never had any
intention of killing Francis Slater, that he wanted no part in her
death and that, in fact, he had schemed against his codefendants to
spare her life. (See e.g., R. at 964, 969, 1002-03). This plan
dove-tailed with Mr. Bush’s fourth statement wherein he confessed
that he had stabbed Slater but stated that he did so only with the
intention of feigning her death so that the other abductors would
leave her alone. It was also substantiated by Bush’s claim that he
refused Pig Parker’s attempt to force the gun on him in demand that
he kill the victim. Muschott urged such aspects of Bush’s confes-
sions upon the jury along with the testimony of the examining
physician to the effect that Slater’s stab wound was only two
inches deep and was not fatal, and along with certain other miti-
gating factors such as Mr. Bush’s voluntary confessions and his
role in breaking the case for investigating officers. Since Bush
| struck Muschott as being “very cold” and unremorseful, and since
| Muschott feared that prosecutors would be able to trick a testify-
_ing Bush into opening doors to his disadvantage, Muschott urged
Bush not to take the stand at trial. (H. at 355, 370). Bush con-
plied and the jury found him guilty on all counts.
During the sentencing phase, Mr. Muschott chose to present no
evidence in mitigation although he could have presented what he had
regarding Bush’s family background, prison experience, and possible
intoxication or mental disability. He made his decision for three
reasons: (1) there was no mental disability to exploit and any
attempt to create one would only have damaged his credibility with
the jury; (2) Bush had confessed that he knew what he was doing on
the night of the murder and any post-trial attempt to show intoxi-
cation would, likewise, have damaged his credibility; and (3) any
evidence offered in an attempt to paint Bush as a docile, sympa-
thetic and “sheeplike” follower would have been false, as well as
unsuccessful, and would have invited the prosecutors to offer
details of the prior rape, robbery and kidnapping in rebuttal.
Muschott thought the state was saving its “heavy artillery” for
just such an opportunity. (H. at 371).
His strategy was to leave
the state hanging with its “bare bones” aggravating circumstances
argument by never opening the all too obvious doors through which
the state planned to usher in unwelcomed facts. (H. at 371). At
the same time, Mr. Muschott would ask the jurors to take into the
jury room a recording of Bush’s third statement to the police.
According to Muschott, only in the third statement did Bush present
himself as a sympathetic, remorseful person. (H. at 370, 403).
That way, Mr. Bush could address the jury in his most sympathetic
posture, without the fear of damaging cross-examination and without
the risk of opening any doors. In Muschott’s words, “the beauty of
the tape in the jury room was that we didn’t open any doors. That
was a device that was utilized in closing argument. The tape was
already in evidence. And we didn’t have to risk anything by using
{it}).” (H. at 371). Muschott developed this strategy early in the
case (H. at 422) and had discussed with Bush, Bush’s father and
Bush’s brother, the pros and cons of taking the stand. (H. at 361l-
62, 370, 422).
After the state had presented its “bare boned” argument for
the death penalty, the trial court recessed for lunch. Just as it
reconvened, Bush leaned over to Muschott and told him he had
changed his mind and was going to testify. (H. at 372). Muschott
reasserted his recommendation that Bush not testify, but Bush
insisted, and Muschott felt obligated to put him on the stand. (H.
at 372-73). Muschott conducted a brief direct allowing Bush to
tell his version of the events surrounding the crime. Then he had
no choice but to turn his client over for cross-examination. In
Muschott’s words, it was “devastating.” (H. at 375). Bush
he
appeared “totally without remorse, ruthless, [and) cold;” and he
stared at the jury “menacingly” during the entire time he was on
the stand. (H. at 374). Although the jury requested and received
a copy of the third statement, they returned with a 7-5 recommenda-
tion that Bush receive the death penalty for the murder of Francis
Slater.
In hindsight, Bush faults Muschott for not pursuing defenses
based on his incompetence and on his “sheeplike” disposition. In
short, Bush’s appellate lawyers claim their client did not know
what he was doing during the crime, was not able to assist in his
| defense, and only acted as he did because he was coerced into doing
so by defendants Parker, Cave and Johnston. All in all, they raise
17 claims.
CLAIM I
THE PETITIONER WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF
COUNSEL AT THE GUILT-INNOCENCE PHASE OF HIS CAPITAL
TRIAL, IN VIOLATION OF THE SIXTH, EIGHTH AND FOURTEENTH
AMENDMENTS.
Specifically, Bush alleges six (6) errors which rendered his
counsel’s performance constitutionally defective. The Court #111
address each in the order in which it was raised.
(a) The petitioner claims that he was and is mentally inconz-
petent but that his counsel made no effort whatsoever to investi-
gate, develop and present evidence of incompetency to the jury~
Petition, at 8.
There is adequate evidence to indicate that the petitioner’s
trial counsel made an effort to determine whether he might be
incompetent to stand trial but concluded, upon consultation with a
-17<-
psychiatrist and Mr. Bush, that incompetency was a “dead end.” (H.
at 322-33, 342, 377-78, esp. 326 and 335). Bush displayed signs of
intelligence throughout the commission of his crimes, during his
interrogations and during trial. He owned the get-away vehicle
and the murder weapon. He drove the four men away from the scene
of the crime. Within an hour of its commission, they were pulled
over in a remote portion of western St. Lucie County by deputy Tin
Vargo. Having no way of knowing the reason for their stop, the men
discussed whether to shoot deputy Vargo but opted against it upon
Bush’s suggestion that they “just wait and see what happens.”© As
it turned out, Vargo had pulled the men over because Bush’s car had
a defective tail light. Vargo stated that Bush was “calm, cool and
collected.”’ He produced his driver’s license and registration,
acted normally and did nothing to arouse suspicion. Mr. Bush main-
tained his composure even when deputy Vargo pulled him over a
second time after a computer check revealed a problem with the
car’s registration. (H. at 381-83).
Between the time of the murder and the trial, Mr. Bush did
numerovws things which evinced his competence and his ability to
appreciate the criminality of his conduct. His co-defendants made
statements to the effect that Bush had analogized the crime with
his prior commission of rape (for which he was sent to prison) and
encouraged disposing of Miss Slater to prevent a recurrence of his
6The quote is attributed to Muschott’s recollection. H. at
383. His performance must, of course, be assessed against his
understanding of the facts at the time.
71d.
-—- ae |
prison experience. (H. at 349-50, 379). Bush attempted to hide
the murder weapon at his brother’s house but, after the crime began
to receive publicity, he returned to his brother’s house, retrieved
the gun and cast it into Taylor Creek. (R. at 828-30). The weapon
was never recovered. Bush made significant efforts to recover his
vehicle, which the police had seized, and even directed his counsel
to act on his behalf in retrieving same. (H. at 358) .8
As indicated, the same counsel who represented Bush in his
trial for rape was initially appointed to represent him in the
instant trial for kidnapping, robbery and murder. Despite that
counsel’s advice that Bush not give any more statements than he
had already given, Bush initiated contact with Sheriff Holt ont
volunteered his confession. (R. at 810-49, H. at 381-82). As in
the other three statements, Bush gave the impression that he knew
what he was doing at all relevant times. (H at 386). He even told
officers that during commission of the crime he was scheming
against his companions to find a way to spare the victim’s life.
(R. at 822-23, 840). Attorney Muschott testified that Bush had no
problems communicating; that he had initially asserted an alibi
Smuschott testified that Bush “was very adamant about certain
things he wanted looked into with respect to his car. Mr. Bush
was never hesitant to communicate with me about the case or about
any other matters that he felt needed attention from me or anybody
else.” (H. at 358).
9Bpush gave four statements to the police. In the first he
denied everything. In the second he admitted to being present
during the crimes. In the third he admitted his participation but
denied that he stabbed or shot the victim. In his fourth he
admitted that he stabbed the victim but denied that he shot her.
(R. beginning at 626, 640, 649 and 667).
- 19 -
(but subsequently withdrew it); that he refused to enter the court-
room without his shoes; that he gave no indication that he was ever
out of touch with reality during the crime; that he understood the
incriminating nature of his conduct during the crime; and that he
appeared to have average intelligence. (H. at 355, 390-91).
Even so, Muschott met with Dr. Tingle on August 12 of 1982
and spent between thirty minutes and an hour discussing the facts
of the case against Bush, the facts Muschott knew relevant to Mr.
Bush’s background, education and family life, the facts relating
to the rape, Bush’s prison experience, Muschott’s impressions of
Bush and all matters known which were relevant to the prospects of
developing a psychologically based defense during the guilt/inno-
cence or sentencing phase of the trial. (H. at 322-35). The two
discussed all records of which Muschott was aware (such as police
reports, co-defendant statements, etc.) they considered personality
testing, and they discussed Bush’s mental status from the time of
the offense up until the time of their conversation. (H. at 33s-
35). Ultimately, Dr. Tingle concluded that there was nothing that
he could do to help Bush’s defense. (H. at 376-78). The position
in which Muschott found himself is well represented in the follow-
ing exchange between he and petitioner’s appellate counsel before
this Court:
Q. Now, at the time of Mr. Bush’s sentencing in 1982, 1s
it fair to say that you had not developed at that point
or did not have at that point any mental health miti-
gating evidence, any expert testimony along those lines?
A. Had not developed anything, that’s correct.
- 20 -
mm “ere -
Q. So, at the time, you didn’t do a weighing process,
should I put this on, should I not put this on, in that
regard?
A. Well, I had done that weighing process prior to the
sentencing phase of the trial.
Q. Right. But I guess my point is, you couldn’t weigh
something you didn’t have?
A. WwW ‘ Vv ’
---(A]t that point (I) had not...been able to develop
anything that (would have) outweighed what would have
come in on the coattails of that from the state (emphasis
added).
(H. at 342).
Bush’s demonstrated ability to make his own decisions (about
how to cover up his crimes, who to talk to and when, which lawyer
| to have appointed, etc.) belies his claim that he was incompetent
to stand trial while, at the same time, it compelled his lawyer’s
strategic decision not to risk credibility by attempting to paint
Bush as a passive participant who was simply led astray by a “bad
crowd.” In light of the information known to attorney Muschott at
the time, it was not constitutionally ineffective for him to forgo
the incompetency route. Even now, seven years after the fact, Bush
has failed to raise a substantial doubt about his competence. See
Claim III, below. During the time at which Muschott had to make
decisions regarding trial strategy, the suggestion of incompetence
was even more farfetched. Upon its independent consideration, this
Court agrees with the Florida Supreme Court that there was no evi-
dence then available and known to Muschott, suggesting that Bush
was incompetent to stand trial. See Bush, 505 So.2d 409, 410-11
(Fla. 1987). In the absence of evidence indicating that Bush was
- 21-
incompetent, and in the presence of so much evidence attesting to
his competence, his defense was not rendered ineffective by coun-
sel’s decision not to pursue incompetency further than he did. See
Burger v. Kemp, 483 U.S. __, 107 S.Ct. __, 97 L.Ed.2d 638 (1987) ;
Lindsey v. Smith, 820 F.2d 1137, 1144 (11th Cir. 1987); Solomon v.
Kemp, 735 F.2d 395, 402 (11th Cir. 1984).
Petitioner’s assertions to the contrary notwithstanding, Ake
v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) does
not entitle him to a competency evaluation even when his counsel
concludes, after consulting with a psychologist, that such an
His counsel’s failure to secure one in
this case was not ineffective within the parameters established by
evaluation would be futile.
Strickland. See also Bowden v. Kemp, 767 F.2d 761 (11th Cir. 1985);
v. Wainwri , 770 F.2d 918, 934-35 (11th Cir. 1985). Fos-
ter v. Dugger, 823 F.2d 402 (llth Cir. 1987) (counsel not inettec-
tive for failing to conduct detailed investigation into peti-
tioner’s mental history given strategic decision that insanity
See also Claim IV, below.
(b) The petitioner claims that he was intoxicated at the tire
defense unlikely to be successful).
of the murder, that his intoxication negated any specific intent to
commit the crime and that his attorney’s failure to request an in-
struction on voluntary intoxication was the result of ignorance anda
Petition, at 9-17, citing Gardner v. State,
not trial strategy.
480 So.2d 91, 92-93 (Fla. 1985).
Mr. Muschott knew that the defendants claimed to have been
drinking and smoking marijuana on the night of the murder. (H. at
@ « ‘i. -
345). He decided not to push the intoxication defense, however,
since he felt it would have undermined his credibility with the
jury. (H. at 388). If Mr. Muschott had argued that Bush was so
intoxicated that he was unable to formulate a specific intent to
commit the crimes, he would have had to explain (a) why Bush did
not appear intoxicated to deputy Vargo who pulled Bush over twice
within an hour of the murder in the wee hours of the morning at a
time when officers are most suspecting of drunk drivers;?}° (b) why
Bush had admitted prior to trial that he knew what he was doing,
that he did not drink as much as the others and that he was not so
drunk as to be unaware of what was happening, (R. at 768, 769, 774,
785, 1188-1190); and (c) how it was that his intoxication prevented
him from formulating the specific intent to commit the crimes but
did not prevent him from scheming to foil his co-defendants’ mur-
derous intentions. The decision to pursue one of two mutually
exclusive defenses does not amount to unconstitutionally ineffec-
tive representation.
(Cc) The petitioner claims that his attorney failed to offer
“exculpatory” evidence to prove that Bush was not the triggerman;
~*~
e
LOmuschott testified:
I know from experience in. law enforcement, particularly
road officers, that in any late night stop situation,
one of the first things they’re going to look for is to
determine whether the driver is under the influence and
that would be appropriate to make a DUI arrest or at
least to give roadsides. And it’s been my experience
that they give roadsides if there’s any indication of
alcohol on the breath or impairment of faculties.
(H. at 387-88).
- 23 -
thus the government was able to produce a picture of the victim’s
lifeless body and argue, in closing, “(t)his is what happens when
John Earl Bush fires a .38 caliber bullet into her head.” Peti-
tion, at 17-24.
Muschott testified that the state never took the position, by
argument or presentation of evidence, that Bush fired the gun. (H.
at 315). He argued there was no reason to present evidence to
disprove something the state had no intention or means of proving.
Ia.i1 The primary evidence available to Muschott would have been
(a) Bush’s testimony to the effect that he was not the shooter, and
(b) Pig Parker’s statement to Georganna Williams to the effect that
he, Parker, had fired the gun. (H. at 313). Mr. Muschott could
not have contemplated offering the first since he had planned to
keep Bush off of the stand right up until the very end when Bush
insisted on taking it (at the sentencing phase).12 Muschott feared
the state might have offered details about Bush’s prior conviction
for rape, i.e, the victim’s psychological devastation.}3 (H. at
314).
lltn his closing statement, prior to the state’s remarks,
Muschott said, “There’s no question from the evidence that this
girl was shot by Pig Parker and I don’t believe there is any ques-
tion form the evidence that the weapons were wielded by Parker, ana
wielded by Cave.” (R. at 970).
l2Even so, this evidence was elicited by the submission of
Bush’s statements to the police. He consistently denied that he
pulled the trigger and the state had nothing to refute the denial.
l3pig Parker’s confession to Ms. Williams was given along with
the explanation that, because of Bush’s prior conviction, the state
would hang everything on him, in spite of who pulled the trigger.
- 24 -
Even so, at no time prior to closing was Muschott given any
indication that the state would seek to argue something he knew it
had no hopes of proving. The prosecutor’s inexplicablel4 Closing
remark was given within a context designed to outline the state’s
case against Bush for felony murder based on his participation in
the robbery and kidnapping. (R. at 989-1003). None of the evi-
dence showed Bush to be the shooter. Therefore, Muschott was able
to diminish the prosecutor’s closing argument by a response which
reasserted Bush’s claim that he was scheming to buy time between
the abduction and the murder, but that time ran out when
Pig Parker [shot] this girl in the back of the head, not
in response to anything Mr. Bush did, but in response to
Pig Parker’s robbery, in response to Pig Parker’s and
Cave’s abduction of the girl and in response to Pig Par-
ker’s knowing that the girl could identify him.
(R. at 1003) (emphasis added). The state offered nothing to show
that Bush was the triggerman; and its error during closing may have
undermined its credibility with the jury. Before sentencing Bush,
the trial judge stated:
Of course, the only version of the actions that took
place that night that we have come[{s]} from your state-
ments both out of court and in court. I guess we don’t
have to believe your statement, but since there is no
other evidence we can’t act upon anything that wasn’t in
evidence. So we must assume that you were an accomplice
in the offense and we must assume, that from the evidence
of Dr. Wright, that the actual death occurred as a result
of the bullet wound and che only ev idence, direct evid-
t we Vv tha at.
(emphasis supplied).
14put see the Court’s discussion of this statement in Claim VI
below, especially at page 51-52.
- 25 -
(R. 1304-05). Muschott’s decision not to present evidence to prove
that Bush was not the triggerman was clearly within the wide para-
meters of attorney discretion afforded in Strickland. No evidence
was offered to prove otherwise and he, Muschott, had no reason to
believe the state would suggest that Bush had pulled the trigger.
The suggestion came only in closing at which time Muschott had the
opportunity to exploit the contradiction. (H. at 369). See also
Claim VI, below. He did so.
(d) The petitioner claims that his attorney failed to file
pre-trial motions contesting the admissibility of petitioner’s
various confessions, of identifications obtained at a pre-trial
line-up, and of hypnotically-refreshed testimony. Petition, at
24-36.
These omissions are non-prejudicial. The hypnotically-
refreshed testimony to which the petitioner refers is that of one
“Danielle Symons.” She testified at trial that she had seen Mr.
Bush in the convenience store on the night of the murder in the
company of three other black men. (R. 348). This evidence, like
that obtained at the pre-trial line-up, is so cumulative that it
could not be prejudicial. There is no contesting Bush’s role in
the crimes: it was established by his own testimony. He does not
deny his presence in the store that night, nor his participation in
the crime: nor has he denied either since the first statement to
the police.
Mr. Muschott did object to the use of Bush’s statements on the
ground that they were not given voluntarily. (R. at 627, 640, 4%,
~- vere ee
8
if
650). Appellate counsel faults Muschott for objecting during trial
instead of before. This does not a Strickland violation make. See
Funchess v. Wainwright, 772 F.2d 683 (llth Cir. 1985).
the alleged error was not prejudicial.
Even so,
The trial judge found the
statements to have been voluntarily given, his decision was
affirmed on direct appeal, Bush, 461 So.2d at 939; the record
itself reveals the voluntariness of the statements, (see SR at 104-
0S and the cites therein), and upon independent consideration of
that record in light of the petitioner’s instant claims, this Court
has reached its own conclusion that the confessions were indeed
voluntarily made.
See Claim X, below. Mr. Muschott could not
possibly have altered this result by objecting cartier than he did.
(e) The petitioner claims that his attorney failed to offer
any defense whatsoever. Specifically, the petitioner faults his
counsel for not arguing voluntary intoxication, coercion and lack
of intent. Petition, at 36-39.
Muschott’s decision not to pursue the voluntary intoxication
defense beyond the extent that he did is addressed in ground (b),
above. His alleged failure to argue lack of intent is belied by
the facts: Muschott centered Bush’s defense around the argument
that Bush never intended to kill Slater, that he did not inflict
the fatal wound and that the wound he did cause was inflicted in
an effort to prevent the others from committing the murder. In
response to the claim that Muschott should have argued that Bush
was a passive, “sheeplike” character who only did what he did at
the direction of others, Muschott stated that had he argued coer-
- 27 «-
mom “ee -
cion (i) he would have lost credibility with the judge and jury
because the facts showed Bush was at least a co-leader with Pig
Parker; (ii) the state would have sought to introduce evidence
about Bush’s background which showed him to be aggressive, not
passive; and (iii) he, Muschott, would have been making an argument
which he could not in good conscience make.
Many of the facts reviewed above reveal Bush to be an asser-
tive individual. In addition, Bush himself stated that he was
urged by the others (Parker, Cave and Johnson) to outrun deputy
Vargo when the latter pulled the four over on the night of the
Bush said he refused their request even
though he believed he could have outrun the deputy if he had so
murder. (R. at 825).
desired, and that he pulled over because he wanted to confess the
crime then and there. Id. Muschott was also concerned that the
state would seek to introduce statements from the other three
abductors to the effect that “Bush had said during the course cf
the abduction and prior to the murder that, ‘we need to get r:io
the victim,’ because he--it was either he or his brother, had gore
to prison once before because they didn’t get rid of the victi-.
and that wasn’t going to happen again.” (H. at 348, 357, 379-80)
The state took the position that Bush had been a leader in
the prior rape. Evidence of that leadership, as well as the fact
that its victim had fingered Bush from the witness stand, could
have been used to buttress the state’s argument in favor of the
death penalty for the Slater murder. Muschott feared that such
evidence might be admitted to counteract any claim that Bush was
- 28 -
subject to coercion. (H. at 348, 379-80 and R. at 346, 357). The
Court also notes that any attempt to paint Bush as the defenseless
subject of manipulation and coercion might have undermined the
attempt to prove that he was scheming to foil his cohorts murderous
inclinations.
Finally, Muschott stated that he did not pursue the coercion
argument because it would have been a lie. When asked about his
view of Bush’s role in these three crimes, Muschott said, “I felt
that the facts demonstrated or indicated to me or left me with the
impression that Mr. Bush was the leader of the group, or certainly
the best case scenario from his standpoint, at least the co-leader
with Parker. But I felt really that he was the ‘lead person.” (H.
at 357). Muschott testified that Bush was not at all passive or
submissive, but “was very...aggressive.” (H. at 358); “adamant
about certain things,” (H. at 358). The Court notes Bush’s rejec-
tion of attorney Schopp’s advice that he not volunteer a fourth
confession and his insistence on testifying during the sentencing
phase despite attorney Muschott’s advice that he not. Mr. Muschott
felt that Bush wanted to be in the spotlight. (H. at 373). Strick-
land does not compel an attorney to urge an argument which he rea-
sonably finds to be futile, let alone one he finds to be false.
(f) The petitioner claims that his attorney failed to consult
with independent experts in effort to contradict the testimony of
the Medical Examiner and a Criminologist who testified at trial.
Petition, at 39-46.
- 29 -
Two forensic science experts testified at Bush’s trial and at
the trial of his co-defendants: Dr. Ronald Wright, the medical ex-
aminer who performed the victim’s autopsy and Daniel C. Nippes,
the criminologist who used hair and fiber analysis to “place” the
victim in Bush’s vehicle on the night of the murder. Dr. Wright
testified that the superficiality of the victim’s stab wound was
consistent with evasive action. (R. at 466-7). Nippes testified
that hair he found in Bush’s car had been forcibly removed from
Miss Slater’s head (R. 920); he also testified that her bladder
release was consistent with fear prior to death. (R. at 471).
Bush faults Muschott for not cross-examining Wright and Nippes on
those aspects of their testimonies. Specifically, Bush suggests
that effective cross-examination could have established that (i)
ct
‘)
"
the superficiality of the wound was consistent with Bush’s s ¥
that he did not intend to murder the victim: (ii) there are other
ways that hair can be forcibly removed, i.e., vigorous brushinrs:
and (iii) there were other possible causes for the victim’s tlaiier
release than fear, i.e. her death. Petition, at 39-43. The Ceurt
finds these alleged failures non-prejudicial.
First, attorneys for defendants Parker and Johnson tried to
establish (ii) and (iii) through cross-examination at their resrec-
tive trials. Both were convicted.}>5 Second, the Court can only
—
15parker received the death penalty; Johnston, who played a
less significant role than the others, received a life sentence.
Even so, it is their convictions, not their sentences, with which
the Court is now concerned. In Claim I, Bush is challenging his
counsel‘s effectiveness during the guilt/innocence phase of the
trial, not during the sentencing phase.
- 30 - aaa
5
i:
imagine the ridicule with which prosecutors might have riddled mr.
Muschott’s efforts to suggest that Slater’s hair had been ripped
from her head by “vigorous brushing.” Even had they not so argued,
the Court cannot imagine any scenario in which Bush’s conviction
would have been thwarted by even conclusive proof that his victim
had forcibly removed her own hair at an earlier time and transfer-
red it into Bush’s car only by accident, or proof that Francis
Slater wet her pants on the night of her murder, not because she
was in any fear, but simply because she died. 16
Finally, while appellate counsel has succeeded in locating a
medical examiner in the state of Georgia who will affirm several
years after the fact that Slater’s stab wound would not be incon-
sistent with the story that Bush had not intended serious injury,
that hardly proves that Muschott’s failure to do the same seven
years ago, or even to cross-examine Wright on the point, amounts to
constitutionally defective and prejudicial representation. Mr.
Muschott cross-examined Dr. Wright regarding the stab wound and
elicited the admissions that (a) it was not fatal and (b) it was so
shallow and superficial that Wright had difficulty measuring its
depth. (R. at 471-73; SR at 109-110). Moreover, Muschott argued
that the superficiality of the wound was consistent with Bush’s
claim that he intended no serious injury. (R. at 824, 969, 1181;
16In Parker’s trial Nippes was asked on cross-examination if
Slater’s complete bladder release was not “equally consistent” with
the conclusion that it was caused by death and not fear. Nippes
responded, “[n]jo, it’s not equal because it’s highly unusual to
have the bladder completely emptied, and also the staining around
the pants. But that does occur.” (Transcript of Parker’s trial,
at 669).
- 31-
SR at 110). This hardly qualifies as inefficient, prejudicial
See Martin v. McCotter, 796 F.2d 813, 818 (5th
Accordingly, Claim I is denied.
CLAIM II
THE PETITIONER WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE
OF COUNSEL AT THE SENTENCING PHASE OF HIS CAPITAL TRIAL
IN VIOLATION OF THE SIXTH, EIGHTH, AND FOURTEENTH AMEND-
MENTS.
cross-examination.
Cir. 1986).
The petitioner argues that his trial counsel rendered ineffec-
tive assistance during the sentencing stage of the trial for the
following reasons:
(a) counsel failed to investigate and present evidence
detailing Bush’s sympathetic background, including his
disadvantaged childhood and his traumatic prison exper-
ience,
(b) counsel failed to investigate and present evidence
of Bush’s intellectual and psychological impairments,
(c) counsel failed to investigate and present evidence
to show that Bush did not kill or intend to kill,
(d) counsel failed to investigate and present evidence
to show that Bush’s participation in the crime was the
result of physical and psychological coercion, and.
(e) counsel failed to investigate and present evidence
to show that Bush was intoxicated at the time of the
offense.
1l7The record presented by the petitioner in this case is
extensive. There is no doubt that much if not all of this
potential mitigating testimony would have been relevant and could
not have been excluded from consideration had it been presented.
See Hitchcock v. Dugger, 481 U.S. 393 (1986); Skipper v. South
Carolina, 476 U.S. 1 (1986). However, the relevancy of the
evidence and the trial court’s duty to allow its introduction do
not have a bearing on the issue at hand, i.e. whether counsel acted
reasonably in deciding not to introduce the evidence out of
apprehension that it would do little for his client’s chances while
revealing possibly damaging details about his past. See Burger v.
Kemp, 97 L.Ed.2d 638, 654 n.7 (1987).
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a mm.
To a large extent, grounds (b) - (e) are simply reassertions
of grounds addressed in Claim I above. Mr. Muschott’s decision not
to pursue, further than he did, Bush’s alleged psychological
defects, mental deficiencies, incompetency, intoxication or coer-
cion, etc., was supported by his reasonable, professional judgment.
His decision to proceed as he did, without offering evidence in
mitigation, was a deliberate one; it was not the result of over-
sight or ignorance. Under the circumstances of this case, the Court
cannot say that such a decision fell beyond the wide range of com-
| petence demanded of attorneys in criminal cases.” Strickland,
Supra at 687 and 690. See also Thomas v. Wainwright, 787 F.2d
1447, 1449 (llth Cir. 1986). As far as Muschott was concerned, to
argue that Bush was intoxicated, or that he got in with a bad crowd
| that made him act against his will, or that he was mentally defi-
| cient while he committed the crimes, was to argue a falsehood or a
_ set of falsehoods which would have proven ineffective. To switch
strategies between the guilt/innocence phase and the sentencing
t phase would have cost him whatever credibility he had with the
jury. This is especially true where, as here, the “evidence” of
the defendant’s psychological deficiencies was so weak.
Muschott did not believe that Bush suffered from any mental
deficiency, nor did he have reason to believe so. Muschott did
not believe that Bush was coerced into acting as he did; indeed,
Muschott thought Bush to be a co-leader in the instant crime and a
leader in a former one. The facts of which Muschott was aware
painted Bush as a cold, remorseless man who was a major participant
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in six atrocious crimes against two defenseless women within a few
years of each other--one of which took place when Bush had barely
been out of prison three years. Muschott weighed the very ques-
tionable beneficial value of a defense based on psychology against
the very real threat that such a defense would open the door for
the state to introduce, in rebuttal, the details of the 1974 rape
and the damaging statements of Bush’s co-defendants. He decided
that the real threat outweighed the potential benefit. That deci-
sion did not render his representation constitutionally ineffec-
tive.
Likewise, petitioner’s argument that Mr. Muschott failed to
investigate his personal background is without merit. Contrary to
his current counsel’s assertion, this is not a case where the trial
lawyer conducted no investigation whatsoever. Mr. Muschott dis-
cussed possible mitigating information with Bush, his brother and
his father, on numerous occasions. He specifically discussed with
them Bush’s personal and family history. Muschott talked with
Bush’s girlfriend and his brother-in-law about the possibility of
finding and presenting mitigating evidence. Muschott was well
aware of Bush’s poor family background and Bush’s life in prison
including the physical abuse to which he was subjected. However,
both Bush’s father and brother indicated that they did not wish to
testify and Bush himself stated that he did not want his father to
testify. No other family members came forward in Bush’s behalf
despite Muschott’s willingness to talk with them. Muschott made an
independent evaluation of the usefulness of the character and back-
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ground information provided and decided that it was not signifi-
cantly beneficial to his client’s case. The decision was deliber-
ate; it was not the result of oversight or ignorance. Again,
Muschott weighed the possible benefits of this evidence against the
rebuttal it invited and concluded that he and Bush were better off
without them both. In a hearing before this Court, petitioner
proffered the evidence of his background which he now suggests
should have been offered in mitigation at his sentencing hearing.
| This Court considered that evidence and found it of little value.
Muschott’s decision not to offer it in mitigation was Clearly with-
in his discretion.
The trouble with Muschott’s strategy is that Bush refused to
follow it. After having succeeded in keeping the prosecutor from
cross-examining his client and in leaving the state with only its
“bare bones” argument, Muschott was prepared to urge upon the jury
Bush’s third statement to police. Therefore the last, and perhaps
| Strongest, impression the jury would have had of Bush would have
been in his favor. But Bush ruined it; he insisted on testifying.
He waited for his counsel to construct the defense...and then he
| pulled the linchpin. Muschott made the bid, then Mr. Bush changed
trumps. The effect was devastating. Even so, five jurors were
swayed. 18
18petitioner makes repeated reference to the claim that five
of his jurors recommended he receive a life sentence in spite of
his counsel’s allegedly poor performance. It may very well be that
he received those five votes only because of his counsel’s thought-
ful strategy. The point is that the 7-5 split does little, if any-
thing, to bolster petitioner’s argument that his counsel was inef-
fective.
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Petitioner’s poor performance at the sentencing stage cannot
be blamed on his counsel. It is clear that the two of them agreed
well before trial that Bush would not testify. Bush’s last second
decision to do so against the advice of counsel cannot now be
twisted into an argument for ineffectiveness. See Mitchell] v.
Kemp, 762 F.2d 886, 889 (llth Cir. 1985) (when a defendant preempts
his attorney’s strategy by insisting on a different defense, no
claim for ineffectiveness can be made).
The Court finds that Muschott’s decisions were supported by
reasonable professional judgment. Mr. Muschott’s decision not to
offer evidence of Bush’s purportedly good character was a sound,
strategic one in light of his reasonable belief (confirmed in the
hearing before this Court) that the state would have introduced
evidence of Bush’s violent past and facts regarding his pricr con-
viction in rebuttal. Having thoroughly discussed the matter with
Bush’s closest relatives and learned of their reluctance to testify
on Bush’s behalf, Muschott’s decision not to pursue the invest-
igation further was not unreasonable. See Knight v. Dugger, 353
F.2d 705 (llth Cir. 1988); Mi Vv. Kemp, 762 F.2d 886 (lith
Cir. 1985). While Muschott might have conducted a more thorough
investigation into possible mitigating evidence, “in considering
claims for ineffective assistance of counsel, *{the court) address-
{es} not what is prudent or appropriate, but only what is constitu-
tionally com
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