# Appendix — Bush v. Singletary > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0528%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1994 - **Citation:** 510 U.S. 1065 ## 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 »¢ 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 | 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 ynetiec t Secretar) ( orrectiv! Aph . Cri \ Fi » “ Ae 4. Lrin Habs vw J lea Arnie } statenmi« fendant 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 ‘ ‘ ng : rder ise } e re ryie ‘ sre Y Su a " 4 “2T a Jule Lis ‘ eu nat . pre . nul er ey ‘ i i ‘ ‘ ‘ ’ 1° Criminal Law @641.13() Wele ¢ J t faiiure & prese ‘ iring y te ng phasé¢ of At : urder as to defendant's backgrou sa rea I DOL! jlefendcant Tathe ‘ r er indicated they dic lt Wa rw r ‘ } ‘ “ pre t wv ~ 4 . : , . - { Criminal Law @641.105(6, | ‘ } 20 “ Wi re r r f¢ ; ’ : ; ; [ s] judg 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 } — zx } 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 ’ ; ; ‘ "et ’ ¥ ¥ rit | rviaer te ' a 1 codelenagans on } ‘ ! ‘ , | t fied that defendant was ca and ‘ 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 " , Amendment iif t suisTy nig? ndmen , ‘ LW} +} , tor whetner tne | " é ‘ inwarra \ plate thre t grt > + e . wa re th Amendment ster Pr Whether th bate mant ' , } o} ot ’ ria ( irt ct nat s ve re . [ ‘ ‘ " ) i ' 8: TI " i} R . \ ] id ¥ : 1. ; a \ . ‘ ‘ : ; ‘ | para WS A ‘ | [ ia " Jeu : “ : ’ i? »’ wa | i | \ } ; , A ls y j R ' " iV Pe i ‘ ale aw t ; » : ™ 7. ~ per we t * ,? f Adirvaric iy ’ t sas “ all bightl mnd Fourteent? \ ‘ il ait ih ) was ¢ ’ ‘ . ; Kou \ , . a isin us wi iy fave y int thinking tha t had reach a iy set « ¢ ) y i n cnda rege uM ‘ ) a nw e ‘ ! 2 : iZ The [ > > ; 1088 988 FEDERAL REPORTER, 2% RIES > > “) ~ tik.» ‘ gxs FEDERAL REPORTE.., 2d SE! ’ , ' ; ntis ay f 1090 : : , ai\t at ie prese iti} ny eau " ‘ ‘ ‘ ' ‘ ‘ ‘ ‘ ‘ ‘ j ‘ i it'a ‘ tuile f " v4 cle i rt ‘ rt na aid tna > , , | | 7 " vt r vi se ‘ ‘ ‘ I " tate pr é " yci i yo ’ ’ ' Ff type | ’ 4 , , ’ aA ; ‘ nelar : nf ’ ‘ j ; ‘ ‘ " mngdamenualy u | | . . nile ‘ j , " for ’ ’ , “5 f ; ¥ r) " ‘ ‘ \. , sf > > zd | r le ‘ ia jue proce i re ‘ t #y MCMC l , se lie Sid j ; for 4ié . ‘ r A r jt : bps f ‘ ( iv) : : r nit nei . . " \ x I ' ris ons ‘ y ¢ ~ - { a i 4 y - i ai > Ld 10 | kd LU 401 ivi f t ‘ ‘ ‘ eriy “1 . } mse fuied { a , \ : . ~- ’ or mn ner Gea ! nowever trv arg urme : ’ " ) " * Wa ae al ’ ey le t . . . ; } } — ‘ 9 ; ‘ ’ ne;rme 4 4 1c e ( 10! nd e| the - the ‘ " : a 5 ‘ » \ \ ™ , a ’ ; } Tr , . mir are ‘ I 1u | rij : nsveh i ‘ ait ev ice ca riai a . ? 4 : > ‘ I eeree if » ft ’ 7 ad " r ( rin taped . , ' ee y . - . ind a j Viti, } te \ tiie f a ‘ aut - 4 brie 7 . . > +} . \ ‘ YY her cea a ‘ & ¥ ir f > . Ak ~ ore ed Dbusn was tne ripe hor " eave her a r Wa 9.10 I prove tha = , ‘ ‘ } est wv rtad DV BU ; ‘ oe b tats P SF . neffect eo th ‘ « 1 _ , , ’ ” } Aw : r ; r " , ’ - " ALU ‘ : rats that ‘ . t , tr y | j *> * *> 1 ‘ > . ‘ 4 . » : , . . ry ’ . AU » retor fit } f f At 4 s m Na { prove that Bush tou “> : : I ‘ » i \ 64 evalua gc pe or . : ' ' ' 3 - he deficie “ ’ ‘ a ' ° ru nv t rt at ) sx ‘ e ‘ ‘ ; ms rye ner j r A ’ , 2 - Whether the prosecutors inaccu , rint r } 7 , w } ‘ {f rea } f. . ct i ale ncons t. and misleading pre _ se the dict ' we , - ’ ‘ ee . , P _ ’ " ‘,4 : ar ’ - : violated the petitioner s } +} tre . . ‘“~) ‘ y ‘ A s ’ ’ - , aut ryre }aG1ce j¢ : J > > ~- gt r the kighth and Fourteenth } f i +} ; nt f [ ive lie £d JO t : ’ shat hut for uM i \ ' t ments A | ‘ ; ‘ ‘ resented } e} * ’ ‘ i ¢ lé ‘ re; { > ‘ i that the r : « ; . / ’ A r * ‘ r v \ \ _ »> ; i ' ; " q WarTra e Ggeaun ily ; , ve ‘ : ringleader " } t ’ he evide e regarding ‘ . + at 2068 First. we addr ea 4 ewe “a > ‘ } assert ave triu i f ric ‘ tha " ‘ , ‘ lef ‘ \ vi ‘ ‘ ‘ ty y - nest ‘ } \ \ " ‘ gper " ‘ er round wa , } rejudice j \ " VW ‘ ‘ ; - 4 4 | } , . , ry ar > t . sad , : ‘ " fraugme } , : ; ‘ ea y ‘ lur y W Da i 4 a ‘ ‘ « 1 the Kely rr? r t? t ts re ’ ’ ; ‘ . s)) y i ; » ilies SF * ss 2 ‘ 4 exper a ‘ ‘ ‘ . : ‘ " ‘ " . 4 " is we i A o fe ' irder theory P ny t Bus) the bullet that k ed the vy } “s +] : u eure inre ; i ‘ .% \ \ > " ‘ te '? br : 4 W ib | * ‘ > 4 - . ™ . RUSH ¥ Cite as ORR F 2d 1oOn? SINGLETARY ltith Ct id nor ’ ‘ us M Ne ‘ A ; us ‘ ’ "a5 ' f #) a} ' ’ l4 } } rent } ++ } y ver j +» ‘ ‘ ‘ rye ? , ’ ij auUu ‘s , } I 1091 991 ’ , i Q : ‘ i f ‘ ‘ af ‘ r eT , . | ive presents P lone. leta ‘ ry hot " = , 7 . ALAS ] f ; } i} T ré 4 ; ' ’ _ intag I inood a Y ‘ i re | tr ; ne bs nvestigated B Der na if ‘ hiuate ne of r . r } 7 : . : . a Ki { l¢ . ] tr if tr ‘ ’ rnif : — , , . ‘ ‘ , , * ‘ . } ‘ P 4 ef that the tates . re tta ‘ 1¢ ‘ ; | r >? , , re i é f tr ’ =? tT ; ‘ ’ ly ‘ 4 } ] I vith tf , , eather | ‘ r ne? henther . as “we aware ff , ' r . > 1 ang the tact that ? ' ‘ mn nF , » : hoth | } ‘ | ‘ ‘ r . , , r ’ “ , ‘ , , ‘ fir , error the r - hese hf , . ton? , . pene! r . — ‘ , , ‘ a‘ nvectico 4 , , } nite ‘ r ' vor , » > ry r writ} erit ‘ nvyect ; ; ths . " atea [ mitioa?t } . ) 7 ‘ ‘ , a ga e® Wa one ne ¢ ild not , court ¢ lated tl ‘ ram he nave rea mn to hel wa mentally def ent , ts the nfarr ‘ 7 -” Mu hott nveraatint , r awver for the earl 7 ; , ‘ , af ity 1092 awar©re ri nul nber ¢} , if sea’ had played imtleiigence } _ e, during fi nue r nt hoow . © a : i i +} , [ t | , rn é r wv }¢ ij} a | f4 pe - ft? roer ' . ‘ ‘ j wer le DU } Lid what huppel ryt t t r Hipar mv it At y ii ‘ b t i tne eve r’? . Is! A A r } } , ‘ . a ’ f ¢} , é Meo hoc the irder Ww ate ent to the pe | [ a ae , ¢} rime ‘ trie Muschott discusse ‘ er wit " who determin tha he defense L Ure pe nin ’ , yr ‘ ’ entencing’ pha irt recognized U Muschott weighed i ' ¥ ' | . el a ya ‘ ‘ ycn KY iva " ‘ ‘ AM 4 vit ‘ ¢} tat , [ ‘ ais ‘ " j wl 0! é ; — ‘ } ale DU i that th y it } a ‘ u tent ene e potential | . . District Court Opu Muschott chose t , b ’ } tor | y¢ 2° ai nisu to have Bush exami na psycnoiog! L. al a psychoiog 4 evidel neariny Liven wha Deserve about 938 FEDERAL REPORTER y rot ’ P ‘ , . vm +) , } 4 ‘ ‘ “ t } mh realty Dus! . rig t? ey t | J ny f ratK DY “A ee , - bd x " bed i } 4 aie ’ 5 rey ‘ > te" ’ vu’) . ‘ ’ el ‘ a ‘ vw i \{ re ‘ ly ’ ‘ ' thie r ‘ ‘ ; ‘ ete na wh - . P P i r t re » revea ; =} ‘ w hu ) bnew rt ' ’ ‘ t b : the tria The i ’ rar\ { ‘ thy ery luest : " thy Very red { ‘ “ t ve Ww 110 Derr ‘ r Ww ’ Le 4 bal i} " it bi } ea rr q Ww i ' ' } | ’ , oo ¥ ‘ au Du ’ ‘ ’ re ; r iy! . Mu { r t r ‘ r eu Dy @ psycniau ‘ er! % : ni tor ment WwW prese tf iva h +) try ‘ u rhe ‘ ‘ b I + WV Late j sus 4 ‘ Au ree } | ) " Bust wha Mu I ad 2d SE pus *} , } i i } 4 . , + | DU ‘ er . vi } ) ra [ rye le lale thr ** T ’ A ; ye ol wa re a u he re ‘ r ' , , A , iw ” N FPR aD a Add REPORTER 4 a > xe i- ee REPOMTE & rime eca Wa +} ‘ ad , t} , g I fir th ry ¢ DIDIE Cite as SRA F irea P na = A,‘ r } : a | ‘ ff > j ‘ ir S 0ea f 3 - X 20H® ¥ ts re a. b r 7 a: ‘ A ‘ ‘ ’ noroms. } 1 n , ny ty Jearing Tr : } , | gy é ie r iry view that tive } eunr wi f 4 9 Dia en with ‘ — re > f i aea ; at ‘ | > HOWES 1097 (lith Cir. 1993 ’ No. 62947 3. Criminal Law €517.2(3) . , P , fone ‘ +? : . - oe ows , . ¢ . « Wa Sé A ec WwW Geau accorGance W a 9 15% t y 4. Criminal Law @412.2(5 e (ria! judge in eq the d ena ry advisorv sentence recommenaat 12. H 4 ; . , There is no requirement that 2. Homicide 341 accordance with the jury's advisory sé efendar appealed both convK n and ’ ane ‘ - ysea be continually reminded €é@ rig Where jury found defend int ¢ t f . e recor 1a Hust npea fr é tence i ne Supreme VUourt Adkir ’ : . 5” idee 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 “ ‘ ‘ . . 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 > 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 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 ° 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} 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 } > , +} ; +} 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 : ¢ ‘ , 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, ° j | . Stitutes ‘ per + - . > 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 > . 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. 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 ‘ 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 ¥ ’ ’ 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 | ' ——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). - 32 - 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 - 33 - 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- - 34 - 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. - 35 - 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 compelled.’” Burger v. Kemp, 97 L.Ed.2d 638, 657 (1987) quoting United States v. Cronic, 466 U.S. 648, 665 n.38 (1984). - 36 - | Claim II complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on inves- Strickland, 466 U.S. at 690-91. to the case at bar, the Court finds that the decisions made by tigation.” Applying this standard Muschott were supported by reasonable professional judgments and that there was a strategic basis for his decision not to present any mitigating evidence at the sentencing phase of the trial. is therefore denied. CLAIM IIT THE PETITIONER WAS DENIED DUE PROCESS AND EQUAL PROTEC- TION UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMEND- MENTS BECAUSE HE WAS INCOMPETENT TO STAND TRIAL. Claim III intermingles several claims. Petitioner asserts that he was incompetent to stand trial; that he never received a Pate v. Robinson hearing at which incompetency would have been established; and that his counsel was ineffective by allowing an Muschott’s incompetent man to stand trial. Petition, at 107-31. ! alleged ineffectiveness in this regard is adequately considered in Claim I, grounds (a) and (e) above. Petitioner’s alleged “incom- petency” is the same claim considered and rejected by the Florida Supreme Court on collateral attack. To reiterate: the court concluded that there was absolutely no evidence suggesting that Bush was incompetent to stand trial. Bush, 505 So.2d 409, 410-11 (Fla. 1987). The llth Circuit recently reiterated the circumstances under which incompetency should be considered in a habeas petition: Claims of competency to stand trial should not be con- sidered in habeas corpus proceedings unless the facts are - 37 - ‘sufficient to positively, unequivocally and Clearly gen- erate a real, substantial and legitimate doubt as to the mental capacity of the petitioner to meaningfully par- ticipate and cooperate with counsel during a criminal trial.’ Rivers v. Turner __ F.2d. ____ (11th Cir. June 6th, 1989) quoting Bruce v. Estelle, 483 F.2d 1031, 1043 (5th Cir. 1973), subsequent opinion, 536 F.2d 1051 (Sth Cir. 1976) cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977). Prior to filing this habeas petition, the petitioner had not presented any evidence to overcome the finding of the Florida Supreme Court with regard to competence. Herein, he relies primar- ily on the testimony of a “Dr. Carbonell” who, after reviewing Bush’s background and subjecting him to a battery of intellectual and psychological tests, decided that he did not have an “anti- social disorder,” (H. at 91), and was not retarded (H. at $6), but that he had learning deficits which she felt were indicative cf brain damage. (H. at 98-101). She also concluded that Bush had 23> “extreme emotional disturbance” at the time of the murder (H. at 106-07) and that he was without the capacity to conform his ceoniect ry to the requirements of law (H. at 108). In a report requested Mr. Bush’s current counsel, Carbonell wrote that he may have been incompetent to stand trial because his verbal deficiencies pre- cluded him from understanding words and concepts like “premedita- tion,” “felony murder” and “accomplice liability,” and because Bush could not understand why he was being tried for murder when he 22:2 not pull the trigger. (Petition at 130, citing Appendix 0). In testimony before this Court, Dr. Carbonell said that she believed - 38 - | ' j ! | ' Bush to be a passive, “sheep-like” follower who acted under the “substantial domination” of the other defendants. (H. at 111-114). She admitted, however, that Bush’s competency was difficult to assess in retrospect. (H. at 142, Petition at 128, citing Appendix O). Her examination was conducted more than five years after the fact. Dr. Carbonell’s conclusions regarding petitioner’s verbal deficiencies and possible brain damage were consistent with those of a “Dr. D’Amato” who examined Bush before April 18, 1986, also at the request of Bush’s appellate counsel. D’Amato’s findings were available to the Florida Supreme Court when it considered, and ultimately rejected, Bush’s collateral attack. D’Amato’s letter to that counsel indicates that although Bush maintained a “venier [sic] of coldness and toughness,” he was cooperative and “able to develop a rapport” with his examiner. State’s Exhibit NN, at 6). D’Amato wrote that Bush: does not experience any illusions, auditory or visual hallucinations, or other types of hallucinations.... (He) was oriented to time, place, and person and sen- sorium was intact....His thought content was void of obsessions, compulsions, phobias, derealization, deper- sonalization, suicidal ideation, homicidal ideation, delusions, ideas of reference, and ideas of influence. His stream of thought as manifested by his speech is free from any associational disturbances. Id. The Florida Supreme Court wrote that Bush’s newly appointed psychiatric expert offers only weak sup- port to Bush’s claims. The numerous psychological prob- lems now pointed out, such as learning disabilities, a passive and dependent personality, and possible ‘diffuse organic brain damage’ do not, when taken together, suffi- ciently raise a valid question as to Bush’s competency to stand trial (cites omitted). - 39 - Bush v. Wainwright, 505 So.2d 409, 410-11 (Fla. 1987). This con- clusion was correct; and, contrary to petitioner’s apparent belief, it is not rendered otherwise by the submission of yet another psy- chiatrist to second Dr. D’Amato’s opinion. Upon independent con- sideration of the expert testimony presented throughout this case, both before and since the Florida Supreme Court’s decision, and in light of the record itself, this Court does not find that Bush has raised a doubt about his competence sufficient to merit a reopening of the issue on appeal. Without repeating all of the factors considered in ClaimI (a) and (e), above, (attesting to Bush’s competency to stand trial) the Court simply incorporates them here by reference and notes, again, that petitioner’s attorney, Muschott, testified that Bush had no with reality during the crime or at trial; appeared to understara the incriminating nature of his conduct; and displayed average intelligence. (H. at 355, 390-91). Since the petitioner has fully in his own defense during trial, Rivers directs this Court to give the claim no further consideration. Claim III is denied. - 40 - | time of the offense. CLAIM IV THE PETITIONER WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS AND EQUAL PROTECTION UNDER THE FOURTEENTH AMENDMENT, AS WELL AS HIS RIGHTS UNDER AND THE FIFTH, SIXTH AND EIGHTH AMENDMENTS, WHEN THE DEFENSE PSYCHO- LOGIST APPOINTED TO EVALUATE HIM BEFORE TRIAL FAILED TO CONDUCT A COMPETENT AND APPROPRIATE EVALUATION. Next, Bush contends that Dr. Tingle’s inadequate psychiatric evaluation deprived him of his fifth, sixth, eighth and fourteenth amendment rights as articulated in Ake v. Oklahoma, 470 U.S. 68 (1965). In Ake, the trial court denied a defendant’s request for a psychiatric examination to determine the defendant’s Sanity at the The United States Supreme Court reversed finding that: . [Wjhen a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a signifi- cant factor at trial, the State must, at a minimum, as- sure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. Ic. at 83. However, the Supreme Court cautioned that: A defendant’s mental condition is not necessarily at issue in every criminal proceeding, however, and it is unlikely that psychiatric assistance ... would be of probable value in cases where it is not. The risk of error from denial of such assistance, as well as its probable value, are most predictably at their height when the defendant’s mental condition is seriously in ques- tion. When the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent. Id. at 82-83. Here, the appointment of Dr. Tingle was not required under Ake. Bush made no showing whatsoever that his mental condition or - 4l1 - sanity was going to be in issue. See Motion for Appointment of Psychiatrist and Psychologist, R. 1502, and Order granting motion, R. 1526. Bush exhibited no behavior which would have led his coun- sel, the police or the trial court to question his competency or sanity. Without some form of preliminary showing, a defendant is not entitled to the appointment of psychiatric assistance. Id. at See also Clark v. Dugger, 834 F.2d 1561, 1564 (llth Cir. 1987). — 82-83. This being the case, the Court finds that Bush was not preju- diced by Dr. Tingles’ performance in this case. Bush’s counsel discussed all the facts he had gathered about Bush and the crime with Dr. Tingle. Following this discussion, both men concluded that Bush’s sanity and competency would not be an issue in the case. As discussed in Claims I and II, this decision was not unreasonable. Dr. Tingle’s failure to pursue the psychiatric examination further was the result of Bush’s counsel’s reasonable tactical decisions.. Since Bush failed to make the preliminary showing that competence might be at issue, he was not entitled toa psychiatric exam in the first place. The fact that his counsel sought the input of a psychiatrist to the extent that he did hardly establishes Mr. Bush’s claim that an examination to which he was not entitled was insufficient. The Court finds that Bush’s rights under Ake were not violated and Claim IV is therefore denied. - 42 - CLAIM V THE PETITIONER’S SENTENCE OF DEATH CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AMENDMENT BECAUSE THE STATE COURT RECORD IS DEVOID OF A FINDING OF HIS INDIVIDUAL CULPABILITY. Bush claims that his sentence of death is cruel and unusual because the trial court did not find he was individually culpable for the murder. Petition, at 142-53. As controlling precedent, petitioner cites Tison v. Alabama, 107 S.Ct. 1676 (1987); Cabana v. Bullock, 106 S.Ct. 689 (1986); and Enmund v. Florida, 458 U.S. 782 (1982). In Enmund, the United States Supreme Court held that the Eighth Amendment forbids the imposition of the death penalty gainst “one...who aids and abets a felony in the course of which a murder is committed...but who does not himself kill, attempt to Kill, or intend that a killing take place or that lethal force...be employed.” Enmund at 797, 102 S.Ct. at 3376. In Bullock, the Court indicated that such a finding need not be reached by a jury, but may be made by an “appropriate tribunal--be it an appellate court, a 102 S. Ct. at Or a jury.” Bullock at, Tn Tison 423i id Jil, the Supreme Court declined to enumerate each and every particular type of conduct and state of mind that warranted the Geath penalty but concluded, “simply,” that major participation the felony committed combined with a reckless indifference to human life was sufficient to satisfy Enmund’s requirement of 1688. It is clear in the instant case that, culpability. Tison at 19while noting that this finding could be made in either fed- eral or state court, the Supreme Court stated that the latter alternative would be the “sounder one.” AOTIA @ (Rev. 6/82) if not the trial judge, certainly the appellate tribunal found Bush to be a major participant in the underlying felonies committed. Tison Suggests, therefore, that the imposition of the death penalty is justified if either found Bush to manifest even “reckless indif- ference” to human life, let alone an intention to take it. In the instant case, this determination was made expressly by both the trial judge and an appellate tribunal, and implicitly by the jury. In the course of sentencing Bush, the trial judge stated: The evidence that was presented in this case is that you were together with these other people during this entire evening, that it was your car, that you were doing all the driving and that it was your weapon. The evidence then shows that when you stopped down in that road you and Parker got out of the car and took the,girl back and between the two of you you did her in. You took the first step by stabbing her. You said you did not intend to kill her. Apparertly the jury dis- believed that and I am privileged to disbelieve it as well. In any event, what you did, stabbing her, making her fall to the ground, facilitated and cooperated with Parker in what he did next, and therefore in my opinion there is no way to say what you did was relatively minor- i (R. at 1305). Despite the trial judge’s refusal to accept Bush’ Claim that he lacked the requisite intent and despite that same judge’s determination that Bush was a major participant in the murder and its underlying felony, Bush appealed his sentence to the Florida Supreme Court claiming an Enmund violation.°*9 On appeal, 2Opetitioner might have alleged that the trial judge did not make his finding with sufficient specificity since the passage quoted in the text above arises within the trial judge’s discussion of possible mitigating factors. Such an allegation would be futile however, since the appellate tribunal, the Florida Supreme Court, made an express finding of its own which satisfied Enmund. See text, below. | Florida’s Supreme Court wrote: the facts of this case show that Bush was a major, active participant in the convenience store robbery and (that) his ij j of the vic- tim. The degree of Bush’s participation is sufficient to support a finding that his volv i m required by Enmund (emphasis added) .” Bush v. State, 461 So.2d 936, 941 (1984).21 By proffering Tison purportedly in his defense, Bush and his appellate counsel seem to suggest that intent plus major participation will not sustain imposition of the death penalty without an additional, specific But the Court finding of reckless indifference. This is absurd. is at a loss to glean anything else from the proffer. trial judge and the appellate tribunal found intent: Both the the former said that the jury had apparently disbelieved Bush’s claim that he lacked intent and that he, the trial judge, was privileged to do the same; the latter found that petitioner’s direct actions con- tributed to the death of the victim and that the degree of his participation supported the finding of intent required by Enmund. Accordingly, petitioner’s Enmund claim must fail and Claim V is denied. 2lit is Significant to note that the Florida Supreme Court prefaced the above quoted passage with the following language: “We disagree with [(Bush’s] contention on the facts of this case-....The facts of this case show....” Bush v. State, 461 So.2d 936, 941 (Fla. 1984). In other words, the court was able to make an inde- pendent finding of its own, based on the facts of the case and not Simply the lower court’s conclusions, that Bush possessed the requisite intent to satisfy Enmund. Thus even if Bush were able to undermine the trial judge’s conclusions by reference to Enmund, the Florida Supreme Court’s independent findings would, and do, render any Enmund objections frivolous. - 45 - AOT2A @®& (Rev. 6/82) CLAIM vI THE PETITIONER’S CAPITAL TRIAL AND SENTENCING PROCEEDINGS WERE RENDERED FUNDAMENTALLY UNFAIR AND UNRELIABLE, AND VIOLATED THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMEND- MENTS, DUE TO THE PROSECUTION’S DELIBERATE AND KNOWING PRESENTATION AND USE OF FALSE EVIDENCE AND ARGUMENT AND INTENTIONAL DECEPTION OF THE JURY, THE COURT, AND DEFENSE COUNSEL. The petitioner maintains the prosecution knowingly utilized false evidence in order to acquire a verdict of “guilty” and a sentence of death. Specifically, he claims that the prosecution introduced into evidence the .38 caliber bullet it found beneath the driver’s seat of his car but hid a report by Donald E. Chan- pagne, an analyst with the Florida Department of Law Enforcement Regional Crime Lab, which stated “[the bullet fragment found in victim’s head] appears to be a .32 caliber class plain lead allo - 46 - , Ss theo ¥ 4 bullet.“*2 Bush contends that the state “hid” a report by Detec- tive Tom Madigan which reviewed Champagne’s findings and concluded that the fatal wound was not inflicted by a .38 caliber bullet. See Deposition of Tom Madigan, Appendix LLL to the Petition, at 44. He also claims that the prosecution was aware of statements made by his co-defendants to the effect that Parker shot Slater, while Bush only stabbed her, but that they attempted to prove he was the shooter, nonetheless. Although the state presented no evidence during trial to sug- gest that Bush was the shooter, in closing argument after the guilt phase, the prosecutor made the following comments: 22The report reads in full as follows: RESULTS: Exhibit #1 This is a badly damaged and distorted portion and frag- ment of what appears to be a .32 caliber class plain lead-alloy bullet as loaded to center fire revolver type cartridges. Remaining weight is approximately 77.3 grains. There is so much overscoring of the bearing Surface that the probable make of weapon involved could not be determined. This bullet is of no identification value. Exhibits #2, #3 and #4 These revolvers have been tests fired using some of the ammunition supplied. They were all found to be func- tional. The tests have been compared microscopically with the bullet, exhibit #1, with negative results. REMARKS: The exhibits will be returned. | See Appendix III to the Petition for Writ of Habeas Corpus. - 47 - he - ‘Cie - You heard the first statement; he denied everything. You heard the second statement; he admits being there. You heard the third statement; he admits participating. You heard the fourth statement; he admitted stabbing. He didn’t make a fifth statement and I don’t know what it would be and it would be unfair for you to speculate what it would be. But I do know that they recovered from his car on the driver’s side in the front seat a .38 bullet. They didn’t recover it from the back seat where Mr. Cave was. They didn’t recover it from the right front seat on the passenger’s side where Mr. Parker was, and they didn’t recover it from the right back side where “Bo Gator” was. They recovered it from where Mr. Bush was sitting the entire night driving that car. That’s where the bullet came from. (R. at 980). Whose gun was taken with the gang in order to rob? Was it J.B. Parker’s, as Mr. Muschott would suggest, that he was the ringleader? Was it Parker’s? Was it Cave’s? Was it Johnson’s? No, it was John Earl Bush’s. He described it as a .38 caliber gun. He described it in another statement as a .38 special. Remember what Mr. Nippes told you. This is a .38 Special. This is a live round. State’s Exhibit Number 22 (the photograph of the gunshot wound] This is what happens when a live round is fired by John Earl Bush and smashes into the skull of Frances Julia Slater. (R. at 992). It is axiomatic that the state has a duty not to present or use false testimony and not to exploit false testimony by urg:r3 the jury to accept the truth of what it knows to be false. See Giglio v. United States, 405 U.S. 150 (1972); Brown v. Wainwriz"* 785 F.2d 1457 (llth Cir. 1986); United States v. Sanfilippo, 56:4 F.2d 176 (Sth Cir. 1977). However, not every use of false evidence entitles a defendant to relief. Brown, 785 F.2d at 1465. Before a defendant is entitled to relief, he must prove that the false ev:- dence was “material” in obtaining his conviction or his sentence or both. Jd. at 1465. Evidence in a case is “material” when “there - 48 - is ‘any reasonable likelihood that the false (evidence) could have affected the judgment of the jury.’” States v. Bagley, the instant case there is no indication that the prosecutors pre- id. at 1465-66 quoting United 473 U.S. 667, 678 (1985) (plurality opinion). In sented false evidence; and the reputedly false “argument” which they made had no material effect in obtaining Bush’s conviction or sentence. First, even if the state urged a conclusion it could not sup- port (1.e., that Bush shot the victim), the jury was not presented The evidence presented consisted of (1) Dr. + ®) 1 fa) A) ct , @ > Live bullet, and (3) the photographs. Dr. Wright’s testimony was consistent with Champagne’s crime lab report Both conclucec thet a positive determination of the ca} j ber of the bullet could not be made and that the fragment was Sistent with a .32 Busn coes not contest the autnenticity of % Ous.e€t Or the protographs end he admitted that it was his aun * : Parker used in the shooting seconc, none of the evidence discussed shove was “hidden : tne cefense bet. Macigen’s testimony and the statement of F co-cefencents were eveileble end Known to Busn’s counse) br : trial Det. Maecisen’s ceposition wes tener my counsel for k : co-cefencents for Busn’s cese. Let. Mecigen hed @ copy of Champegne’s report et the ceposition end ever gGsctes from it ¢ his testimon, 2Se¢ LCeposition of Madigan at p.42 Mr. Mos v? WrIscEe NST presens 2S evere of the cepositi- €nG weivec nis 2 . to cross eee Ic St £.4 Duris THe Glli.set pnese the stere« ee called Dr. Wright, the pathologist who conducted the autopsy on the victim’s body. On direct, Dr. Wright testified that the bullet fragment was “consistent with being a .38” (R. 469). On cross, Muschott elicited from him the following information: Q- Okay. Um-m, you have indicated the fragments that you removed of the projectile were consistent with .38 caliber. Were they consistent with any other caliber? A. It [the bullet fragment] could have been a .32. The bullet here has been so badly flattened out and portions of the bullet have been lost because it disintegrated in such small pieces that they could not be recovered, that it is difficult to be certain whether it’s a .32 or a -38. The general size is more consistent with a .38 than it is with a .32. Q@. You’re telling us that you can’t be certain at this point what the caliber was? , A. That is precisely correct. (¥. at 472-73). Moreover, Muschott was well aware of the state- ments made by the co-defendants and actually worked to prevent their introduction at trial. Bush’s argument here boils down to whether the prosecutor’s comments cited above were material to the jury’s decision in this case. In other words, whether there is any reasonable likelihood that the comments could have affected the jury’s judgment. See bagley, 4/3 U.S. at 678. The Court finds there is not. See also Claim I, grounds (c) and (f) above. It is clear from the record that the prosecutors were proceeding under two theories of first degree murder: felony murder and the aiding and abetting of premed- itated murder, (Kk. at 989). Nowhere in the evidentiary phase ot the trial or the sentencing did the prosecutor’s attempt to put on evidence depicting Hush as the shooter. They depicted him as the 5O = get-away driver, car owner, once-convicted felon and owner of the murder weapon. But they did not depict him as the shooter. They did not have to. The petitioner’s error is his assumption that without evidence proving he pulled the trigger he could not be convicted or sen- tenced to death: Stone and Midelas knew that they were presenting a lie to Mr. Bush’s jury. They deliberately presented it be- cause they knew that Mr. Bush’s pretrial statements alone were not enough for a capital conviction and death sen- tence. They needed the false ‘shooter’ theory to assure a first degree murder conviction and sentence of death. at 172. Petition, Midelas himself informed the jury otherwise: “to establish the evidence required for a verdiet of first degree murder, [Bush] didn’t have to stab her, he didn’t have to touch her.” (R. at 989). And as the court would later inform the jury, in order to find John Earl Bush guilty of first degree felony mur- der they only needed to find that Francis Slater was dead, that her death occurred as a consequence of and while John Earl Bush and an accomplice were escaping from the immediate scene of a violent felony, and that, although the accomplice had done the killing, Mr. Bush aided, abetted, counseled, or otherwise procured the commis- sion of the felony. (R. at 1007). There was ample evidence of Bush’s participation in the robbery and of the aid he rendered in all of the crimes committed that evening to find him guilty of first degree murder. There was no need for the prosecutors to fabricate any “false shooter” theory. And, indeed, the evidence precluded them from doing so. The only statement by the prosecution which suggested that Bush was the shooter was offered within a context designed to out- line the state’s case against Bush for felony murder based on his participation in the robbery and kidnapping. (R. at 989-1003). The felony~-murder doctrine allows the guilt of he who pulls the trigger to be assessed against those who facilitated the violent felony during the course of which the trigger was pulled. In other words, it holds them each liable for the murder. In context, the prosecutor’s statement simply equated Bush’s actions with Slater’s death in a manner contemplated by the doctrine of felony murder. None of the evidence The statement was figurative, not literal. showed Bush to be the shooter. The prosecutor argued that he did not have to prove Bush was the shooter; Muschott argued that Bush was not the shooter; the trial judge concluded that the only evi- dence they had showed Bush not to be the shooter and there is no indication that the jury ever had any misapprehensions about Bush’s role in the crimes.’ In closing, Muschott repeated the scenario Bush maintained consistently throughout the ordeal: Dr. Wright testified that this stab wound was not a fatal wound, that this woman died as a result of the gunshot wound that was inflicted by “Pig” Parker and not as a result of the stab wound. (R. at 964). (Bush’s) statements show that this incident occurred as a result of “Pig” and Alphonso Cave abducting, robbing the victim in this case, Francis Julia Slater at gun-_ point, robbing her at gunpoint, abducting her and taking her out of the store, putting her in Bush’s car.... (T)he weapons were in the possession of Parker. Parker had the gun. which the questionable statement was made, Muschott’s arguments to (R. at 969). the jury, the judge’s instructions to the jury regarding felony After she fell, Parker took the gun and shot her in the . ; ’ 2 s . . . bach a¢ the hand. the feted Geunt. Geet enn the Gander. murder, the judge’s express finding that no evidence implicated I That was the homicide in this case. Bush as the shooter, and, finally, the lack of any evidence to show _ (R. at 969-70). that the prosecutors admitted and relied on evidence they knew to | | There’s no question from the evidence that this girl was be false, the Court finds there is no i shot by “Pig” Parker and I don’t believe there is any ‘ POGSGREDSS SENeLShees thet question from the evidence that the weapons were wielded the questionable comment made by the prosecutor could have affected | by Parker, and wielded by Cave. Bush did admit that he stabbed the girl, but there is no doubt from the evidence the judgment of the jury at the ci that the stab wound was not fatal. — aad nr enaS oe Se cone _ hase of Mr. Bush’s trial. (R. at 979). ’ It was after Muschott made these statements that the pros- was that proffered by Mr. Bush himself. 2? tent with ecutors made the assertion about which Bush now complains. It was P sf , TESS WES CUNDsetent with made during Mr. Midelas’s explanation of the state’s felony murder | The only relevant evidence added during the sentencing phase | Bush’s prior statements to the effect that Parker had shot Slater. The prosecution made no further comments regarding who pulled th argument. (R. at 992). Upon conclusion of Mr. Midelas’s argument, P g g r e | | tri qd M t imp] rigger, an uschott simply repeated what h nd Bush } main- Mr. Muschott asked the jury: ! 3g P+y P 3 ea Bush had ma | | | tained all along. R. at 1283). Since th tate did not use fal What do you think would have happened to that girl in the 3 ( 7 —— Sa hands of Parker and Cave if Bush had not driven that Car evidence against Mr. Bush nor seek to hide exculpatory evidence away from that location? Buying time, hoping in vain : someway this situation would resolve itself. it didn’t. | from him; and since. the prosecutor’s one statement hia Cie It resolved itself by “Pig” parker shooting this girl in | ‘ P — Seeeane Laas the back of the head, not in response to anything Mr. Bush fi ae ; ’ ; ired the weapon was not material, Claim \ ; Bush said, not in response to anything Mr. Bush did, but | | P + 18 denied in response to “Pig” Parker’s robbery, in response to | | } > M VII “Pig” Parker’s and Cave’s abduction of the girl and in | : : | response to “Pig” Parker’s knowing that the girl could | THE PETITIONER WAS DENIED DUE PROCESS AND EQUAL PROTEC- identify him. | TION IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS BECAUSE THE FLORIDA SUPREME COURT REFUSED TO REVIEW CER- | (R. at 1003). TAIN OF HIS CLAIMS THE COURT FOUND PROCEDURALLY BARRED. Based on the lack of any evidence to contradict Bush’s own | The petitioner claims that his prosecutors conspired to con- | | | | : ‘ ~ | . . . statements as to the role he played in Slater’s murder, the lack ceal evidence from him and that, once the evidence surfaced, the | ! of any evidence suggesting that he shot Slater, the prosecutor’s | ; } 23The prosecution attempted to introduce a statement by Parker | reliance on the felony-murder argument and insistence that he did | to the pr Raa that Bush had coe Ms. Slater, but Mr. Muschott came | cessfully objected to its introduction and it was not presented to | mot have to prove that Bush even touched Slater, the context in | the jury (R. at 1166-71) Florida Supreme Court refused to consider it since petitioner had not presented it on direct appeal. Petition, at 175-88. A review of the record reveals the Florida Supreme Court refused to consider four claims the petitioner raised on collateral attack but which the court found to be procedurally barred. 24 The only one dealing with the suppression of evidence was Claim IV (of the collateral attack) which the trial judge considered and dismissed on its mer- its: Petitioner claimed: “THE STATE MATERIALLY MISLED THE JURY BY PRESENTING AND ARGUING FACTS WHICH IT KNEW TO BE FALSE, AND WHICH TOTALLY CONTRADICTED THE PROSECUTOR’S THEORY IN CO-DEFENDANTS ’ CASES, IN VIOLATION OF DEFENDANT’S FIFTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS.” See Initial Brief of Appellant, State Court Collateral Proceedings, at ii. Specifically, the petitioner claimed the prosecution implicated him as the shooter before the jury when there was no evidence whatsoever to suggest that he had pulled the trigger. To solidify its argument, the prosecutors informed Bush’s jury of the .38 caliber bullet found in the front seat of his car but hid from the jury a forensics report which concluded that the victim had been killed by a .32 caliber weapon. This is precisely the argument raised in CLAIM VI, above. See als oO Claim I, ground (c). Because this Court considered the claim on its merits and decided that it is meritless, it need not address the Florida Supreme Court’s determination that the claim was pro- cedurally barred. See Wainwright v. Sykes, 433 U.S. 72 (1977); Smith v. Murray, 477 U.S. , 106 S.Ct. 2662, 91 L.Ed.2d 434 24The four claims are enumerated in footnote 2 above. (1986); Murray v. Carrier, 477 U.S. , 106 S.Ct. 2639, 91 L.Ed.2a 397 (1986). CLAIM VIII THE PETITIONER WAS DENIED HIS RIGHT TO AN INDIVIDUALIZED AND FUNDAMENTALLY FAIR AND RELIABLE CAPITAL SENTENCING DETERMINATION BECAUSE THE STATE INTENTIONALLY RELIED UPON VICTIM IMPACT, COMPARABLE WORTH, AND OTHER IMPROPER FAC- TORS IN ITS EFFORTS TO OBTAIN A SENTENCE OF DEATH. The petitioner claims the prosecutors referred to the victim’s family during voir dire and in closing argument in a manner forbid- den by the U.S. Supreme Court’s decision in Booth v. Maryland, 482 U.S. 496 (1986). He alleges that his prosecutors elicited sympathy from the jury by express references to Francis Slater’s family and to the effect her murder had on them. During voir dire, the pros- ecutors directed the following inquiries at the jury panel: The fact that the victim in this case may be a per- son who is somewhat famous in the fact that she is the granddaughter of a famous person, Frances Langford, and of course, Ralph Evinrude, would that in anyway effect you in rendering your verdict in this case? Would you tend to give this man any less of a fair trial? Now the victim’s parents are Richard and Salli Camp- bell from Jenson Beach. Mr. Campbell is in the newspaper business there. They are seated in the courtroom and they will be here throughout the trial. They are seated over on the back row. Mr. and Mrs. Campbell back there. Now, the fact that they may be here during the course of this trial and the victim in this case was their daughter and you will see them at recess and during breaks, would that cause you to in anyway have any effect whatsoever on your verdict in this case? You would lis- ten to the evidence and that law only and not who the victim is or who she’s reiated to. Could each of you do that? Would any of you have any problem with that what- soever? (R. at 32-33). The prosecutors made four more similar statements ——————— (R. (R. jury. 332). at 973). at 998). throughout the course of voir dire and during arguments before the (R. at 59, 214, 278 and 315). During opening argument for the guilt phase, the prosecutor stated that “she (Slater) was shot in the back of the head with a fatal wound. Just two days before her 19th birthday.” (R. at During closing argument of the guilt phase, he explained: (O]n Monday night, April 26th, at approximately ten o’clock, Bush and his gang were sitting in Fort Pierce drinking, planning to rob. And Frances Slater was at home with her twin sister watching television. That shortly thereafter, the Bush gang left Fort Pierce with the intent to rob and drove to Stuart, and about 10:40 arrived at the Little Saints Store in Stuart. Frances Slater was lying on the carpet in front of the tele- vision, watching TV. Later in the argument, he added: Now, Mr. Stone and I do not represent the Campbell family. It was their daughter who was killed. We rep- resent the State of Florida. What this defendant did on the night of April 26th, the early morning hours of April 27th is a crime against all of the people of the State of Florida and that’s who Mr. Stone and I represent. Finally, during the closing argument at the sen- tencing phase, the prosecutor argued: I know its natural to have sympathy in situations like this. I don’t think there is any question about that. I think certainly you have heard the evidence in this of the previous trial and we talked about sympathy at that point. * * But I submit to you that sympathy, I sympathize with John Earl Bush, anybody would sympathize with John Earl Bush when he is being faced with something like this, but nevertheless, John Earl Bush put himself here. I didn’t put him here, you didn’t put him here. And you have taken an oath that as a juror you will base your advisory sen- tence on what you heard in this trial and not on syn- pathy, because I asked you don’t consider the sympathy that Mr. and Mrs. Campbell have. Don’t consider that when Mr. and Mrs. Campbell sit down to Thanksgiving din- ner just three days from now that they are going to look across the table and they are going to look at Cathy and they are going to see Frances Julia Slater, the identical twin sister. If sympathy had any part in it, think of what they go through. And every time they sit down and look at her, this whole incident is going to come back... (R. at 1279-80). In Booth, the Supreme Court addressed the constitutionality of a Maryland statute that required consideration of a presentence investigation containing a “victim impact statement” during the sentencing process in all felony cases. The victim impact state- ment described in detail the effect of the crime on the victims and families based on information supplied by the victims and their families. The statements contained basically two types of informa- tion: (1) the personal characteristics of the victims and the emotional impact of the crime on their families, and (2) family members’ comments and opinions regarding the outstanding personal qualities of the victim, the serious emotional problems suffered by the family, and the: family members’ perceptions of the crime, :.e. that their parents were “butchered like animals.” The Supreme Court found that the formal presentation of such information to a capital sentencing jury could “serve no other purpose than to inflame the jury and divert it from deciding the case on the relevant evidence concerning the crime and the defend- ant.” Id. at 508. The Court concluded that admission of such information created an unacceptable risk that a jury might impose 4 death sentence in an arbitrary and capricious manner thereby under- mining the reasoned decisionmaking required in capital sentencing - 58 - cases. Jd. at 508-9. For this reason, the Court held that the introduction of the victim impact statement at the sentencing phase of trial violated the eighth amendment. The Supreme Court revisited Booth recently in South Carolina v. Gathers, ___ ~iU.S. ___, 57 U.S.L.W. 4629 (June 12, 1989). In Gathers, the prosecutor read to the sentencing jury extensive por- tions of a religious tract found in the victim’s possession. The prosecution also made reference to the victim’s voter registration card in effort to paint him as a patriotic American. The Supreme Court affirmed the South Carolina Supreme Court’s determination that this line of argument violated Booth. It encouraged the jury to focus on factors unknown to the defendant, isvelevent to the offense and which were offered, primarily, to diminish the worth of the defendant in light of that of the victim. Upon review of the record in this case, the Court finds that prosecutorial comments did not violate Booth or Gathers. The com- ments made during voir dire or the guilt phase of the trial did not involve Booth information. All of the questions asked during voir dire related solely to the identity of the victim and her family-- information that would have, and did, come out at trial. Booth does not purport to preclude a prosecutor from determining whether the jurors would be prejudiced knowing the case involved a well- known family. This inquiry was necessary and proper to assure that the defendant obtained a fair trial. Prosecutorial reference, during the sentencing phase, to the pain felt by the victim’s family did not rise to the level of a Booth violation in this case - §9 - either. Comparing the victim impact statement presented to the jury in Booth and the statements read to the jury in Gathers with the single comment made by the prosecutor in this case, the Court finds a material difference in the scope of the information pro- vided and the likely effect of the information on the respective juries. The victim impact statement in Booth contained extensive and emotionally charged details about the family and the victim and about each of their reactions to the crime. The passages read to the jury in Gathers were prayer-like invocations, requests for humility and strength with which to weather the storms God allowed Some jurors may have even found in the lives of the insignificant. the passages poetic. In comparison, Bush’s prosecutor made a single comment during the close of his argument in reference to the family’s loss. The jury was already fully aware of that loss--fully aware that Francis Slater would be missed during the upcoming Thanksgiving holiday. The prosecutor added nothing to its knowledge; he did not attempt to compare the “worth” of the victim with that of the defendant; he did not inform the jury of irrelevant facts about the victim’s accomplishments, dreams or desires; he did not read to them speci- fic statements from family members about what the loss of the vic- tim meant-to them. In short, he did not create the risk that the petitioner’s death sentence was based on constitutionally impermis- sible or irrelevant considerations in violation of the eighth amendment. Bush’s sentence was directly related to his culpability - 60 - : in the offense. The prosecutor did not violate Booth. According- ly, Claim VIII is denied. CLAIM Ix THE PETITIONER WAS DEPRIVED OF EIGHTH AND FOURTEENTH AMENDMENT RIGHTS BY PROSECUTORIAL COMMENTS AND JUDICIAL INSTRUCTIONS WHICH DIMINISHED THE JURORS SENSE OF RESPON- SIBILITY DURING THE SENTENCING PHASE OF HIS TRIAL. The petitioner claims that the jury was misled about its pro- per role in the sentencing phase in violation of Caldwell v. Miss- 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). lesinni. Petition, at 199-206. In Caldwell, the United States Supreme Court held that prosecutorial remarks which misinformed the jury as to the role of appellate review in a capital case violated the eighth amendment. Id. at 336, 105 S.Ct. at 2643 (plurality); id. at 341- 42, 105 S.Ct. at 2646 (O’Connor, J., concurring in part and con- curring in judgment). In the instant case, the petitioner faults his prosecutors for informing the jury that its role in the sen- tencing phase was “advisory,” (Petition, at 201-202), that reason- able doubt was a guilt/innocence standard which played no part in the sentencing phase (Petition, at 202), that the advice was to be (Petition, and that the final given without sympathy, at 203), responsibility for imposing sentence rested with the judge, (Peti- tion, at 203-04). Petitioner’s claim is procedurally barred pur- 109 S.Ct. 1211 (1989) which dealt with suant to Dugger v. Adams, the following facts. In October of 1978, Audrey Dennis Adams, Jr. was convicted of first-degree murder by a Florida jury which recommended that he be sentenced to death. The death sentence was imposed and affirmed on - 61 - direct appeal by the Florida Supreme Court. Adams v. State, 412 So.2d 850 (Fla. 1982). The United States Supreme Court denied certiorari. 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982). The trial court subsequently denied Adams’ first motion for post- conviction relief pursuant to Fla.R.Cr.P. 3.850, and the Florida Adams v. State, 456 So. 2d 888 (1984). Adams filed a federal habeas petition which the district court 1984. Adams v. Wainwright, No. 84-170-Civ- 764 F.2d 1356 Supreme Court affirmed. denied on September 18, Oc-16 (M.D. Fla.). The Eleventh Circuit affirmed, (1985), and the U.S. Supreme Court denied certiorari again. 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed. 2d 805 (1986). Up to that time, Adams had not alleged that his judge or his prosecutor had done anything to diminish the jury’s sense of responsibility regarding its sentencing recommendation. In the meantime, however, the United States Supreme Court decided Caldwell. for the first time,. that his trial judge had violated Caldwell by Adams filed a second 3.850 motion and alleged, instructing the jurors on numerous occasions that the sentencing responsibility was solely his and by failing to tell them that he could override their sentencing recommendation in limited circunm- Dugger v. Adams, Supreme Court refused to consider Adams’ claim because it could stances only. 109 S.Ct. at 1214. The Florida have been raised on direct appeal and was therefore procedurally barred under Florida law. Adams v. State, 484 So.2d 1216, 1217, cert. denied, 475 U.S. 1103, 106 S.Ct. 1506, 89 L.Ed. 2d 906 (1986). - 62 - ~ ae Adams filed a second federal habeas petition in which he asserted his Caldwell claim. The district court also found the Claim to be procedurally barred and, in the alternative, ruled that it was meritless. Adams v. Wainwright, No. 86-64-Civ-Oc-16 (M.D. Fla., Mar. 7, 1986). The Eleventh Circuit reversed, Adams v. Wain- wright, 804 F.2d 1526 (llth Cir. 1986), modified on denial of re- hearing, 816 F.2d 1493 (1987) and held that Adams’ Caldwell] claim was not procedurally barred since it was novel at the time of his trial in 1978. The Court went on to consider the claim and ulti- | mately granted the habeas petition on its merits. See Dugger v. | Adams, 109 S.Ct. at 1214. The United States Supreme Court reversed on the ground that Adams’ claim was procedurally barred. Id. In summary, the Court reasoned as follows: a Caldwell violation arises when a jury is improperly instructed about its role under local law. Thus, to rule the way it did on the merits, the Eleventh Circuit must have concluded that the remarks in question were error under Florida law. Id. at 1215. To reach that conclusion, however, was to con- Clude that objections to those remarks existed at the time the remarks were made, i.e., they did not arise under some novel 1985 interpretation of the eighth amendment. Since Florida law bars a petitioner from raising claims which could have been but were not raised on direct appeal, Adams’ Caldwell claim was procedurally barred. Id. at 1216. The conclusion to be gleaned is that state - 63 - law determines whether the issue is procedurally barred.*> In the instant case, the Florida Supreme Court has already decided that Bush’s Caldwel] claim is procedurally barred. See Bush v. Wain- wright, 505 So.2d 409, 410 (Fla. 1987). Accordingly, this Court will not consider it. CLAIM X PETITIONER’S STATEMENTS TO LAW ENFORCEMENT PERSONNEL WERE OBTAINED IN VIOLATION OF MIRANDA V. ARIZONA AND THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS. Next, the petitioner claims that the four statements he gave to law enforcement officers were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). This is the same claim made and rejected during trial, and made and rejected on appeal. 26 Upon independent consideration, this Court reaches a conclusion identi- cal to that reached twice below: the statements were voluntary. The facts surrounding those statements are as follows. 25Indeed, this was already the case. In Mann v. Dugger, 844 F.2d 1446 (llth Cir. 1988) the Eleventh Circuit held that a Caldwell claim was not procedurally barred on a federal habeas review precisely because the state Supreme Court had arguably addressed the merits of such a claim in disposing of the peti- tioner’s 3.850 motion [we “clearly and conclusively refute any Claim that there was any constitutional infirmity in the trial.” Mann v. State, 482 Sc.2d 1360, 1362 (Fla. 1986)]}. The Eleventh Circuit reasoned, “{s]ince the Supreme Court of Florida chose not to enforce its own procedural default rule, federal habeas review of the claim is not barred.” (cites omitted). Mann v. Dugger, 844 F.2d at 1448, n. 4. 26The state courts’ disposition of this issue is noted only because state court resolution of subsidiary factual questions are given a statutory presumption of correctness. See Agee v. White, 809 F.2d 1487, 1493 (llth Cir. 1987); Lightbourne v. Dugger, 829 F.2d 1012, 1018-19 (11th Cir. 1987). ~~. “Rite. «> At approximately 8:40 a.m. on May 4, 1982, Bush and his girl- friend, Georganna Williams, arrived at the Martin County Sheriff’s Department to ask about a car (belonging to Bush) which had been seized by the Department. While there, Mr. Bush was approached by Detective Sergeant Lloyd Jones who asked Bush if he would talk to Detective Holt and three other officers about the murder of one Francis Slater. (R. at 619). Bush agreed and was taken to an interrogation room. He was not placed under arrest at the time. Prior to asking Bush any questions, however, the officers told him that they were investigating the murder. The officers then infor- med Bush of his Miranda rights with the aid of an “interrogation advice of rights form.” They read the form to him and then had him read his rights out loud; they asked him if he understood all of his rights, and asked if he was under the infiuence of alcohol or drugs. The petitioner indicated that he understood his rights; _ then he signed the waiver form. (R. at 686-89). This first interview lasted approximately one and one-half hours. During that time, the petitioner denied any involvement in the murder and claimed he had gone to West Palm Beach that night to visit one Robert Lee Wilson to find out about a job. The officers suggested that the petitioner accompany them to West Palm Beach to find Mr. Wilson and verify the petitioner’s story. The petitioner expressed his willingness to go. (R. at 728-29). After conclusion of the first statement, the officers asked Bush if he was willing to take a polygraph test. He said he was. He was taken to the polygraph suite of the Sheriff’s department where he was turned over to Det. Kelly Vaughn. Immediately upon entering the suite, Vaughn took Bush through a “participating Miranda” forn. Bush was informed of his rights a second time, both orally and in writing. The petitioner then signed the Miranda forn along with another form authorizing the polygraph test. See Depo- sition of Det. Vaughn, Appendix VVV, p. 18-19. Preparation for the actual test took approximately two hours. Id. at 1l. Just prior to the start of the test, Bush said “maybe I should talk to an attorney.” Before Det. Vaughn could respond to this statement, Bush continued, “no, I just want to talk to my sister.” Then, almost in the same breath, the petitioner said, “Well, I’m already here so let’s get this over with.” Id. at 13. Det. Vaughn then administered the test. After completion of the polygraph test, the officers again asked the petitioner if he was willing to go to West Palm Beach even though he had no obligation to do so. (R. at 631-32). Fusn volunteered to go. -(R. at 632). Detective Sergeant Charlies ~-"«s and Deputy McClain took petitioner to West Palm Beach. Short.,; after arriving, the officers located Mr. Wilson’s home but wW:.sor was not there. They decided to await his return. After a te» minutes, Bush told the officers there was no need for them to #3it any longer because Wilson had no knowledge of what had happened. At 7:35 p.m., Bush gave his second statement, this time to Officers Jones and McClain. Prior to taking the statement in West Paln, ~ 7_— Officer Jones asked Bush whether he was giving the statement vo.un tarily, whether he had been read his rights, and whether he unce: - 66 - stood them. Bush answered “yes” to each question. (R. at 749). sheriff to call his attorney, Mr. Schopp. Mr. Bush spoke with Mr. He was asked twice more during the course of the interview whether Schepp on the phone end then allowed Sheriff Molt to talk with his his statements were offered voluntarily. (R. at 752, 757). Bush (Schopp)- (R. at 652). Mr. Schopp informed the Sheriff that he responded in the affirmative. In the second statement, Bush con- had advised Bush not to talk but that Bush had indicated that he fessed his involvement in the Slater murder. The officers returned was going to talk anyway. (R. at 654955). The Sherite then to the Martin County Sheriff’s Department. directed Lieutenant David Powers to take Bush’s statement. (R. at At about 9:20 p.m. on that same night, Bush gave a third 655). Ut. Powers epoke with Schepp es well. (R. &t 659). | statement to Det. Jones and Deputy McClain. Prior to taking the Lt. Powers took Bush to his office in the Detective Bureau third statement, Det. Jones again utilized an interrogation form CS See 6 NE Oe ee ee OS SS y. = oes te to Mirandize the petitioner. Det. Jones read Bush his rights and ang the statement, Bush was read his rights again. Sush read the ll the information provided on the waiver form, asked Bush if he form; indicated he understood what it meant, and then signed it. | (R. at 660-61). Bush was informed of his rights yet another time understood what was read, and asked him again if he was giving the statement voluntarily. Bush signed the waiver form and stated that | WOR EL. FEvSTS Hegen Fesswssny Sie etatewent. (HR. at 603). i. ' . 3} he understood his rights and was voluntarily giving the statement. | FOUSES SVE USGS TEE TASS RSs STONEY FUSSEEERESS BD Het Sate with anybody, and asked Bush once again whether he was sure he | (R. at 761-63). He confessed to his involvement in the murder a | wanted to make another statement. (R. at 811-12). Bush said second time. Following the third statement, Bush was incarcerated | ad ; in the county detention center. } “yes,” and gave his .fourth statement to Lt. Powers. He gave his fourth statement on May 7, 1982. On this date ] The petitioner challenges the use of the four statements at er j : is Miracds Bush notified Art James Jackson, the administrator for the Martin } SELGS GH Te Geeunee FEROS, HO GRYUSS CHET NS WEEVEE RIS GALANSS | | ° . ° ° . . | County Sheriff’s Department, that he wanted to see Sheriff Holt. | | rights involuntarily. Second, he claims that officers failed to (R. at 794). Mr. Jackson contacted Sheriff Holt who went to the honor his invocation of the right to counsel prior to administra~- jail. (R. at 796). The petitioner told the Sheriff that he was | tion of the polygraph test and therefore all subsequent statements . | j . | being accused of something and wanted to tell his part to get it should heve been exciuess from evidence straight (R. at 797) The Sheriff told Bush that he could not {| A voluntary statement is one given by a defendant who has made | ! mi ; ,; - ; a} talk to him because he, Bush, was not represented by an attorney. an “independent and informed choice of his own free will, (while) | | possessing the capability to do so, his will not being overborne by - 68 - _ not binding. the pressures and circumstances swirling around him.” Singleton v. Thigpen, 847 F.2d 668, 670 (llth Cir. 1988) quoting Jurek v. Estelle, 623 F.2d 929, 937 (Sth Cir. 1980). On habeas review, the burden of proving involuntariness rests with the petitioner. Mar- tin v. Wainwright, 770 F.2d 918, 925 (llth Cir. 1985). The Court must look to the totality of the circumstances surrounding the statements to determine whether the record supports a finding of involuntariness. Martin, 770 F.2d at 925; Jurek, 623 F.2d at 937. |Also, in a federal habeas proceeding, a statutory presumption of correctness applies to “subsidiary factual questions” resolved in state court proceedings. Agee v. White, 809 F.2d 1487, 1493 (11th Cir. 1987). A federal court is to give great weight to the oon clusions of a coequal state judiciary, even if the decisions are Lightbourne v. Dugger, 829 F.2d 1012, 1018-19 (11th Cir. 1987). Initially, the Court notes that officers read the petitioner his full Miranda rights three different times on May 4. Addition- ally, the petitioner was reitinded of his rights prior to making the second statement. On May 7, the petitioner was read his rights two times and was allowed to talk with his attorney before making his statement. Not once during any of the statements did he indicate he was having trouble understanding the officers or any of his rights. Instead, the petitioner indicated that he understood his rights each time they were read to him, and that the statements he made were voluntary. He signed four waiver forms. - 69 - The petitioner argues that, despit [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0528%3A3. Public record. Not legal advice.