Appendix — Foster v. Florida

EDITOR'S NOTE

ORIGINAL PAGINATION IS NOT CONTINUOUS

»)

SUPREME COURT OF THE UNITED STATES

no: 0 ! - 108 63

IN THE

CHARLES KENNETH FOSTER,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

APPENDIX

TO

PETITION FOR WRIT OF CERTIORARI

JOSEPH F. MCDERMOTT, ESQUIRE

MCDERMOTT LAW FIRM

7116-A Gulf Boulevard

St. Petersburg Beach, FL 33706

Ph: (727) 367-1080, Fx: (727) 367-9940

INDEX TO

APPENDIX A

Charles Kenneth Foster v. State of Florida, 2002 WL

I a ie A-1

Charles Kenneth Foster v. State of Florida, 654 So.2d 112...... A-2

State of Florida v. Charles Foster, Circuit Court Case No. 75-486,

Order Denying Defendant’s Motion for Postconviction Relief...... A-3

Florida Statute 40.01(1); 1973, 1975.00.00... ccc ccc cece ee eeeeeees A-4

Charles Kenneth Foster v. State of Florida, 369 So.2d 928....... A-5

Charles Kenneth Foster v. State of Florida, 614 So.2d 455....... A-6

State of Florida v. Charles Kenneth Foster, Circuit Court Case No.:

75-486, Amended Motion for Post Conviction Relief................ A-7

Charles Kenneth Foster v. State of Florida, Supreme Court of

Florida Case No.: SC01-240, Initial Brief of Appellant.............. A-8

Charles Kenneth Foster v. State of Florida, Supreme Court Case

No.: SC01-240, Excerpts (pp. 7 — 12) Supreme Court Decision

EY WUE PIII etanncictsstndiipecneniceminencdenatiieibasenanadiee A-9

2002 WL 220633

27 Fla. L. Weekly $147

(Cite as: 2002 WL 220633 (Fla.))

u

Supreme Court of Florida.

Charles Kenneth FOSTER, Appellant,

Vv.

STATE of Florida, Appellee.

Charles Kenneth Foster, Petitioner,

Vv

Michael W. Moore, etc., et al., Respondents.

Nos. SC01-240, SCO1-767.

Feb. 14, 2002.

Defendant's murder conviction and death sentence

were affirmed on appeal, 369 So.2d 928, and re-

imposition of death sentence was affirmed, 654 So.2d

112, following vacation of sentence on defendant's

third postconviction mofion. Defendant filed fourth

postconviction motion, which the Circuit Court, Bay

County, summarily denied, and defendant appealed and

filed petition for habeas corpus. The Supreme Court

held that: (1) defendant's claim regaruing voir dire was

procedurally barred; (2) State did not withhold

exculpatory evidence from defendant in violation of

Brady; (3) defendant could not bring postconviction

claim that the Supreme Court engaged in a

constitutionally flawed harmless error analysis on

earlier appeal; and (4) appellate counsel did not have to

argue in more detail that trial court erred when it found

that state had proven aggravator.

Affirmed.

West Headnotes

{1} Crminal Law @> 1144.17

110k1144.17

{1} Criminal Law @= 1652

110k1652

To uphold the trial court's summary denial of claims

raised in a postconviction relief motion, the claims

must be either facially invalid or conclusively refuted

by the record, and where no evidentiary hearing is held

below, appellate court must accept the defendant's

factual allegations to the extent they are not refuted by

the record. West's F.S.A. RCrP Rule 3.850.

[2] Crminal Law @= 1652

110k1652

Page |

A motion for postconviction relief can be denied

without an evidentiary hearing when the motion and the

record conclusively demonstrate that the movant is

entitled to no relief. West's F.S.A. RCrP Rule 3.850.

[3] Criminal Law @= 1655(6)

110k1655(6)

A defendant may not simply file a motion for

postconviction relief containing conclusory allegations

that his or her trial counsel was ineffective and then

expect to ‘eceive an evidentiary hearing; rather, the

defendant must allege specific facts that, when

considering the totality of the circumstances, are not

conclusively rebutted by the record and that

demonstrate a deficiency on the part of counsel which

is detrimental to the defendant. West's F.S.A. RCrP

Rule 3.850.

[4] Cnminal Law @> 1429/1)

110k1429(1)

Defendant's postconviction claim that expectant

mothers and mothers with young children were

improperly excused automatically rather than upon

request was procedurally barred, as defendant's

challenge to procedure in which jurors were excused

was not properly preserved at the trial level. F.S.1975,

§ 40.01(1).

{5} Criminal Law @= 1536

110k1536

Postconviction claim challenging procedure in which

expectant mothers and mothers with young children

were excused could not be brought as a newly

discovered evidence claim, as defendant admitted he

knew at time of trial that judge conducted a voir dire

outside his and counsel's presence, and his counsel

could have attempted to discover what went on at that

meeting through due diligence, and filed a timely

anton

(6] Cruminal Law @= 1536

110k1536

The initial prong for determining whether something

constitutes “newly discovered evidence” for purposes

of a postconviction claim involves the fact that it must

have been unknown by the wial court, by the party, or

Copr. © West 2002 No Claim to Orig. U.S. Govt. Works

2002 WL 220633

(Cite as: 2002 WL 220633 (Fla.))

by counsel at the time of trial and the defendant, or his

counsel! could not known ef it through due diligence.

{7} Cnminal Law @ > 1580(10)

110k1S80(10)

Defendant's postconviction claim that counsel was

ineffective for failing to discover and litigate exclusion

of pregnant women and women with small children

during voir dire failed to allege specific facts that

demonstrated a deficiency on part of counsel that

resulted in prejudice to defendant, where defendant

devoted only one sentence to claim, stating that "To the

extent trial counsel failed to discover and litigate this

issue, Defendant was denied effective assistance of

counsel.”

{8} Cnminal Law 70/5)

110k700( 5)

State did not withhold exculpatory evidence from

defendant in violation ot Brady. based on a failure to

disclose until a public records request a letter from jail

physician in which physician observed “obvious mental

disturbance” in defendant during an examination before

trial, as defense counse! was in possession of this letter

during penalty phase of defendant's resentencing

hearing.

{9} Cnminal Law @7(0K\(2 1)

110k700(2.1)

There are three components that a defendant must

show in order to be successful in a Brady claim: (1)

the evidence must be favorable to the defendant

because it is either exculpatory or because it is

impeaching, (2) the evidence must have been withheld

by the state, either willfully or inadvertently, and (3) ~

prejudice to the defendant must have ensued.

{10} Crminal Law @ 29% 14)

110k29 14)

Jury could return two murder verdicts, finding

defendant guilty of separate counts of premeditated

murder and felony murder for a single death.

[11] Double Jeopardy @= 1502)

1 3SHk150(2)

Trial court's adjudication of guilt on a single murder

conviction for first- degree murder conclusively refuted

defendant's double jeopardy claim. based on jury's

Page 2

return of two murder verdicts, finding him guilty of

separate counts of premeditated murder and felony

murder for a single death.

{12} Sentencing and Punishment @= 1795

3S0HK1 795

Defendant's 23 years spent on death row did not

constitute cruel and unusual punishment.

[13] Sentencing and Punishment => 1612

3SO0HK1612

Death penalty is not per se cruel and unusual

punishment.

{14) Cnminal Law @> 1552

110k1SS2

Postconviction motion was not the proper vehicle for

defendant to claim that the Supreme Court engaged in a

constitutionally flawed harmless errac analysis

regarding the giving of-an erroneous cold, calculated,

and premeditated aggravator instruction. West's F.S.A.

RCrP Rule 3.850.

{15} Cnmuinal Law @> 1 426(3)

110k1426(3)

Postconviction motions are a vehicle provided to

challenge collateral issues related to the tial court

proceedings, not appellate decisions. West's F.S.A.

RCrP Rule 3.850.

| 16) Cnminal Law @= 1433(2)

110k1433(2)

Defendant's postconviction claim that the Supreme

Court engaged in a constitutionally flawed harmless

error analysis regarding the giving of an erroneous

cold, calculated, and premeditated aggravator

instruction was procedurally barred because it was an

improper relitigation of an issue upon which the

Supreme Court has already ruled.

[17] Habeas Corpus @486(1)

197k486(1)

Issue of appellate counsel's effectiveness is

appropriately raised in a petition for writ of habeas

corpus.

{18} Habeas Corpus €486(5)

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2002 WL 220633

(Cite as: 2002 WL 220633 (Fia.))

197k486(5)

Ineffective assistance of postconviction counsel is not a

cognizable claim in a petition for habeas corpus.

{19} Crummnal Law @ 641 13(7)

110k641.13(7)

Appellate counsel did not have to argue in more detail

that trial court erred when it found that state had proven

aggravator that murder was committed while defendant

was engaged in commission of a robbery, where

eyewitness to murder who was with defendant

immediately before testified that defendant said he was

going to “rip the old man off" by taking his money,

which rebutted defendant's argument that taking wallet

was an afterthought and provided an evidentiary basis

for robbery conviction, such that appellate counsel's

failure to argue robbery aggravator in more detail was

Joseph F. McDermott, St. Pete Beach, FL, for

Robert A. Butterworth, Attorney General, and

Charmaine M. Millsaps, Assistant Attorney General,

Tallahassee, FL, for Appellee/Respondent.

PER CURIAM.

*1 Charles Kenneth Foster, a prisoner under the

sentence of death, appeals an order entered by the trial

court denying his postconviction motion filed pursuant

to Florida Rule of Criminal Procedure 3.850. Foster

also petitions this Court for writ of habeas corpus. We

have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

These cases have been consolidated. We affirm the

trial court's denial of postconviction relief, and we deny

habeas relief.

PROCEEDINGS TO DATE

The prior proceedings in this case have been

extensive, both in the trial court and on appeal. The

facts are set out in detail in Foster v. State, 369 So.2d

928 (Fla.1979). Foster was convicted of the first-

degree murder and robbery of Julian Lamier, and, after

the jury recommended death, the trial court sentenced

him to death. See id at 931. Foster's conviction and

sentence were affirmed by this Court. See id at 932.

This Court subsequently affirmed the trial court's

denial of Foster's first postconviction motion, see

Foster v. State, 400 So.2d | (Fila.1981), and also

Page 3

affirmed the trial court's denial of Foster's second

postconviction motion. See Foster v. State, 518 So.2d

901 (Fla.1987). However, this Court granted Foster's

habeas petition and remanded for a new sentencing

proceeding based on a Hitchcock [FN1) error. See id

at 902. Foster's resentencing jury recommended death

by an eight-to-four vote and the trial court imposed a

death sentence. See Foster v. State, 614 So.2d 455,

458 (Fla.1992). In addition, pending resentencing.

Foster filed a third postconviction motion, which the

trial court summarily denied. See id Upon review of

the denial of postconviction relief and of resentencing, ~

this Court affirmed the denial of Foster's third

postconviction motion, but vacated Foster's death

sentence and remanded the case for the trial court to

enter a new sentencing order consistent with Rogers v.

State, S11 So.2d 526 (Fla.1987), and Campbell v

State, 571 So.2d 415 (Fia.1990). See Foster. 614

So.2d at 465.

Pursuant to our remand, the trial court entered a new

this Court subsequently affirmed the sentence. See

Foster v. State, 654 So.2d 112, 113 (Fla.1995). The

trial court found three statutory aggravators: (1) the

murder was committed while Foster was engaged in

the commission of or attempt to commit robbery, (2)

the crime was especially heinous, atrocious, or cruel,

and (3) the murder was committed in a cold,

calculated, and premeditated manner (CCP). See id. at

113-14. The trial court found fourteen nonstatutory

mitigators: (1) Foster murdered Lanier while he was

under the influence of emotional or mental disturbance

(little weight), (2) Foster's capacity to appreciate the

criminality of his conduct or to conform his conduct to

the requirement of the law was impaired (little weight).

(3) Foster has an abusive family background (very little

weight); (4) Foster's poverty (very little weight); (5)

Foster's physical illnesses (very little weight), (6)

Foster's love for, and love by, his family (very little

weight), (7) Foster's alcohol and/or drug addiction

(very little weight), (8) Foster's troubled personal life

(very little weight); (9) Foster's physical injuries (very

little weight); (10) Foster's lack of childhood

development (very little weight); (11) Foster's struggle

with the death of loved ones (very little weight), (12)

Foster's learning disabilities, (13) Foster's potential for

positive sustained human relationships (very little

weight), and (14) Foster's remorse for the crime (very

little weight). See id. at 113 n. 5.

THIS APPEAL AND PROCEEDING

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2002 WL. 220633

(Cite as: 2002 WL 220633, *2 (Fla.))

*2 On September 7, 1999, Foster filed his fourth

3.850 motion, which represents the first 3.850 motion

filed after the trial court entered a new sentencing order

pursuant to our remand citing Campbell [FN2] A Huff

[FN3]} preluminary hearing on this motion was held on

November 27, 2000. On December 29, 2000, the trial

court summarily denied the motion on all grounds.

{FN4] Foster now appeals the tial court's summary

denial of his fourth 3.850 motion, alleging that the tial

court erred in denying him an evidentiary hearing, and

he petitions this Court separately for a writ of habeas

corpus

3.850 APPEAL

Foster's claims on appeal from the summary denial of

his 3.850 motion may be summarized as: (1) the trial

court erred by denying without a hearing Foster's claim

that his righi .9 an impartial jury was violated; (2) the

trial court erred by denying without a hearing Foster's

claim that his conviction violated double jeopardy; (3)

the trial court erred by denying without a hearing

Foster's Brady claim; (4) the trial court erred by

denying without a hearing Foster's claim that the

twenty-three years that Foster has spent on death row

constitute cruel and unusual punishment, and (5) the

Florida Supreme Court engaged in a constitutionally

flawed harmless error analysis in Foster v State, 654

$o.2d 112 (Fla.1995).

{1}{2}{3] This Court has summarized the standard of

review for summary denial of a 3.850 claim:

To uphold the trial court's summary denial of

claims raised in a 3.850 motion, the claims must be

either facially invalid or conclusively refuted by the

record. Further, where no evidentiary hearing is

held below, we must accept the defendant's factual

allegations to the extent they are not refuted by the

record.

Peede v. State, 748 So2d 253, 257 (Fila.1999)

(citations omitted). However, this Court has also held

the following

A motion for postconviction relief can be demed

without an evidentiary hearing when the motion

and the record conclusively demonstrate that the

movant is entitled to no relief. A defendant may not

simply file a motion for postconviction relief

containing conclusory allegations that his or her

trial counsel was ineffective and then expect to

receive an evidentiary hearing. The defendant must

allege specific facts that, when considering the

totality of the curcumstances, are not conclusively

rebutted by the record and that demonstrate a

Page 4

deficiency on the part of counsel which is

detrimental to the defendant.

Kennedy v. State, $47 So2d 912, 913 (Fla. 1989)

(citations omitted).

We affirm the wial court's summary denial of Foster's

3.850 claims, as they each fall into one of three

categories: procedurally barred, without merit, or

conclusively refuted by the record.

RIGHT TO AN IMPARTIAL JURY

[4] Foster claums the tial court erred by summarily

denying the claim that his right to have an impartial

jury was violated because a fair cross-section of the

community was not available to serve on his jury due

to the trial judge excusing a certain class of prospective

jurors. Specifically, Foster alleges for the first time in

this 3.850 motion that pregnant women and women

with small children were automatically excused from

the jury venire before vow dire began, pursuant to a

flawed statutory exemption scheme. Foster bases this

allegation on the fact that the State's jury notes, which

allegedly were not previously available to him, do not

affirmatively indicate that potential jurors were not

excused. Foster states that if the wial court

automatically excused this class of people, it did so

improperly because the statute provided, "[E)}xpectant

mothers and mothers with children under 15 years of

age, upon their request, shall be exempted from grand

and petit jury duty.” § 40.01(1), Fla Stat. (1975)

(emphasis added). Foster claims that he was entitled to

an evidentiary hearing to explore whether or not jurors

were improperly excused.

*3 (5][6] We find this claim is procedurally barred

because Foster's challenge to the procedure in which

jurors were excused was not properly preserved at the

trial level. [FNS] See Hoskins v. State, 702 So.2d 202

(Fla.1997) (holding that the defendant's challenge to

the trial court's practice of having the court clerk

automatically excuse prospective jurors pursuant to

section 40.013(5), Florida Statutes (1995), was not

tumely filed because the excusals had already been

made and the defendant did not challenge his jury

panel). We therefore affirm the trial court's summary

denial of this claum.

[7] Foster also advances an meffective assistance of

counsel argument on this claim. In his 3.850 motion,

Foster contends that counsel was meffective for failing

to discover and litigate the exclusion of pregnant

women and women with small children during voi

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2002 WL 220633

(Cite as: 2002 WL 220633, *3 (Fia.))

dire.

In his 3.850 motion, Foster devoted only one sentence

to the ineffective assistance of counsel claim, stating.

“To the extent trial counsel failed to discover and

assistance of counsel.” Foster has simply failed to

of the circumstances, demonstrate a deficiency on the

part of counsel which resulted in prejudice to the

defendant. Furthermore, Foster has not demonstrated

that he was constitutionally entitled to have pregnant

women and women with small children serve on his

jury since section 40.01(1), Florida Statutes (1975),

provided them with an excuse for service and this

Court has upheld the statute in the face of constitutional

concerns. See McArthur v. State, 351 So.2d 972, 975

(Fla.1977). Therefore, we find the trial court did not

err by denying Foster an evidentiary hearing on this

clam.

BRADY CLAIM

{8}[9] Foster alleges the trial court erred by not

holding a hearing on his claim that the State withheld

exculpatory evidence from him in violation of Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed2d

215 (1963). [FN6] Specifically, Foster alleges the

State did not disclose (until a public records request), a

letter from jail physician Dr. Russel! Stewart to Sheriff

Tullis Easterling dated July 31, 1975, in which Dr.

Stewart observed “obvious mental disturbance” in

Foster during an examination before trial. However,

the record affirmatively and conclusively refutes

Foster's claim that the letter was withheld by the State,

either willfully or imadvertently, because the record

reflects that defense counsel was in possession of this

letter on June 6, 1990, during Foster's resentencing

hearing. Defense counsel moved to have the letter

entered into evidence and the court admitted it as

defense exhibit number 4 during the penalty phase of

Foster's resentencing hearing. We therefore affirm the

trial court's summary denial of this claim because

Foster's Brady claim is conclusively refuted by the

record.

DOUBLE JEOPARDY VIOLATION

{1O0}{11} Foster alleges the wial court erred by

summarily denying his claim that the jury's two murder

verdicts, finding him guilty of separate counts of

premeditated murder and felony murder for a single

death, violate double jeopardy principles. We find the

Page §

jury's dual verdict is supported by the evidence in this

case, and, as we stated in Lamb v. State, $32 So.2d

1051, 1052 (Fla.1988), “there is no reason why a

defendant cannot premeditate a murder committed

during the course of a felony.” We hereby affirm the

trial court's summary denial of this claim because the

Foster guilty of a single murder conviction for first-

degree murder, which conclusively refutes Foster's

double jeopardy claim. See id Of course, Foster also

received a single sentence for the murder.

CRUEL AND UNUSUAL PUNISHMENT

*4[12}[13] Foster argues the rial court erred when it

he has spent on death row constitutes cruel and unusual!

punishment. We have previously held an extended stay

on death row does not constitute cruel and unusual

punishment. See Knight v. State, 746 So.2d 423, 437

(Fla.1998). We also reject Foster's claim that the death

penalty is per se cruel and unusual punishment, an

issue that we have already decided adversely to him.

See Davis v. State, 742 So.2d 233, 235-36 (Fia.1999)

(holding that the claim that the death penalty is

basically cruel and unusual punishment is without

merit). Therefore, we affirm the trial court's summary

denial of this claim, as we find that it ts without merit.

HARMLESS ERROR ANALYSIS

[14}[15}[16] Foster alleges this Court engaged in a

constitutionally flawed harmiess error analysis

regarding our conclusion in Foster v. State, 654 So2d

112, 115 (Fla.1995), in which we stated that because

the trial court found no statutory mitigators and three

strong aggravators, the giving of an erroneous cold,

not affect the jury's consideration of his sentence, and

therefore the giving of such instruction was harmless

error. A postconviction motion is not the proper

vehicle to challenge a decision of this Court. Rule

3.850 motions are a vehicle provided to challenge

collateral issues related to the éria/ cour! proceedings,

not appellate decisions. See Fla R.Crim. P.

3.850(aX1)-(6). Further, this claim is procedurally

barred because it is an improper relitigation of an issue

upon which this Court has already ruled. See Brown v.

State, $96 So.2d 1026, 1028 (Fla.1992). We therefore

affirm the tial court's summary denial of this claim.

HABEAS CORPUS

[17}[18] Foster alleges both appellate counsel and

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(Cite as: 2002 WL 220633, *4 (Fia.))

postconviction counsel were ineffective -for not

sufficiently arguing that the tial court erred when it

stated that aggravators were established beyond a

reasonable doubt, without a specific factual analysis

that a robbery was committed. The issue of appellate

counsel's effectiveness is appropriately raised in a

petition for writ of habeas corpus and we consider it

here. See Freeman v. State. 761 So.2d 1055, 1069

(Fla.2000). However, this Court has held that

ineffective assistance of postconviction counsel is not a

cognizable claim. See Waterhouse v. State, 792 So.2d

1176, 1193 (Fla.2001) (citing State ex rel. Butterworth

v. Kenny, 714 So.2d 404, 408 (Fla.1998), and Lambrax

v. State, 698 So.2d 247, 248 (Fla.1996)).

[19] Foster takes issue with his appellate counsel for

not sufficiently arguing that the tial court erred when it

found that the State had proven the aggravator that the

murder was committed while Foster was engaged in

the commission of a robbery. The record reflects that

the robbery aggravator was asserted during the penalty

phase, but only after evidence of a robbery had already

been presented during the guilt phase and the jury

found Foster guilty of the robbery that arose out of the

same criminal episode as the murder. This Court has

stated, “[A}ppellate counsel cannot be deemed

ineffective for failing to raise non-meritorious claims

on appeal, or claims that do not amount to fundamental

error.” Happ v Moore, 784 So2d 1091, 1095

(Fla.2001) (citation omitted). We find that appellate

counsel was not deficient for failing to raise this issue

in more depth because the argument had no merit.

*S Foster argues that his direction to another person to

take a wallet from a dead body is merely evidence of an

upheld.

Beasley v. State, 774 So.2d 649, 662 (Fla.2000)

(citations omitted) (holding thal property being stolen

after the victim was killed constituted a robbery

“i Page 6

because no evidence demonstrated any motive for

killing the victim other than to take her money). See

also Jones v. State, 652 So.2d 346 (Fia.1995), Bruno

v. State, $74 So.2d 76 (Fla.1991). The record reflects

that Anita Rogers, an eyewitness to the murder who

was with Foster immediately before the murder,

testified that Foster said he was going to “rip the old

man off" by taking his money when the man went to

bed with Gail Evans. This testimony rebuts Foster's

“afterthought” argument and provides an evidentiary

basis for Foster's robbery conviction. Therefore,

because Foster has not shown that appellate counsel's

failure to argue the robbery aggravator in more detail

was of such magnitude as to constitute a serious error

or substantial deficiency falling measurably outside the

range of professionally acceptable performance. and

process to such a degree as to undermine confidence wn

the correctness of the result, the petition for writ of

habeas corpus 1s denied.

Based on the foregoing, we affirm the trial court's

denial of 3.850 relief and deny habeas corpus relief.

It is so ordered.

WELLS, CJ., and SHAW, HARDING, ANSTEAD,

PARIENTE, LEWIS, and QUINCE, JJ., concur.

FN1. Hitchcock v Dugger. 481 U.S. 393, 107

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

that @ was error for the tial court to refuse to

thal were presented)

FN2. The claims in Foster's amended 3.850

motion were: (A) the Florida Supreme Court

analysis regarding the CCP aggravator. (B)

Foster was demed the mght to an umpartal

jury, (C) Foster's guilty verdict including both

felony murder and premeditated murder

amounted to double jeopardy and due process

violations, (D) Foster's confinement on death

row for twenty-three years constitutes cruc!

and unusua! pummshmen. (F) the death penalty

constitutes crue! and unusual pumshment. and

(F) a violation ot Brady v Marviand, 373 US.

83, 83 S.Ct. 1194, 10 L_Ed.2d 215 (1963),

to the defense a jail physician's letter

FN3. Huff v. State, 622 So.2d 982 (Fla. 1993).

FN4. In addition to addressing the six main

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2002 WL 220633

(Cite as: 2002 WL 220633, *5S (Fia.))

must have been unknown by the trai court, by

of mt through due diligence. S¢e Jones v Siate.

Riechmann, 777 So.2d 342, 362 (Fla.2000).

END OF DOCUMENT

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684 So.2d 112

20 Fla L. Weekly S9!

(Cite as: 6$4 So.2d 112)

Ll

Supreme Court of Florida.

Charles Kenneth FOSTER. Appellant,

Vv

STATE of Florida, Appellee.

No. 82335.

Feb. 23, 1995.

Rehearing Denied May 11, 1995.

On remand from the Supreme Court, 614 So.2d 455,

for resentencing on homicide conviction, the Circuit

Court, Bay County, Don T. Sirmons, J., again imposed

sentence of death, and defendant appealed. The

Supreme Court held that: (1) instruction that it was

aggravating factor that homicide was committed in

cold, calculated, and premeditated manner without any

pretense of moral or legal justification was improper,

but (2) error was harmless as the murder could only

have been cold, calculated, and premeditated.

Affirmed.

West Headnotes

{1} Sentencing and Punishment = 1686

3S0Hk1686

(Formerly 203k356)

Sentence of death imposed on defendant who beat

victim, stabbed him in the neck, dragged him into the

woods, and cut his spinal cord was proportionate.

{2} Sentencing and Punishment @= 1653

350Hk1653

(Formerly 110k1208.1(6))

[2] Sentencing and Punishment @= 1658

350Hk1658

(Formerly | 10k1208.1(6))

It is within purview of trial court to determine whether

particular mitigating circumstance was proven and the

weight to be given to it.

[3] Homeide C31 |

203k311

{3} Hormeide C= 340( 1)

203k340(1)

Page 12

Instruction that it was aggravating factor that homicide

was committed in cold, calculated, and premeditated

manner without any pretense of moral or legal

justification was improper, and was not cured by

further instruction that fact that defendant was

convicted of premeditated murder was not sufficient to

require finding that murder was cold, calculated, and

premeditated error.

[4] Homicide C= 340(1)

203k340(1)

Constitutional error in instruction on aggravating factor

that homicide was committed in cold, calculated, and

premeditated manner was harmless, as the murder

could onty have been cold, calculated, and

premeditated in view of evidence that defendant beat

victim, stabbed him in the neck, dragged him into the

woods, and cut his spinal cord.

*112 Richard H. Burr, NAACP Legal Defense and

Educational Fund, Inc., New York City, and Steven L.

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

Menser and Curtis M. French, Asst. Attys. Gen.,

Tallahassee, for appellee.

*113 PER CURIAM.

Charles Kenneth Foster appeals his sentence of death

following the trial court's issuance of a new sentencing

order in accordance with this Court's directive in

Foster v. State, 614 So.2d 455, 465 (Fla.1992). We

have jurisdiction pursuant to article V, section 3(b)(1)

of the Florida Constitution.

Charles Foster was convicted of Julian Lanier's

murder and sentenced to death in 1975. _ Foster's

conviction and sentence were affirmed by this Court on

direct appeal in Foster v. State, 369 So.2d 928 (Fla.),

cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d

116 (1979). The trial court denied Foster's first

postconviction motion, and this Court affirmed. Foster

v State, 400 So.2d | (Fla 1981). This Court also

affirmed the trial court's denial of Foster's second

postconviction motion. Foster v. State, $18 So.2d 901

(Fla. 1987), cert, denied, 487 U.S. 1240, 108 S.C

2914, 101 L.Ed.2d 945 (1988). [FN1] However, this

Court granted Foster's habeas petition and remanded

for a new sentencing proceeding based on a Hitchcock

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SP oe

654 So.2d 112

(Cite as: 654 So.2d 112, *113)

error. [FN2] /d

FN 1 In addition, the Eleverth Cwrcunt affirmed

the denial of Foster's two federal habeas

petitions. Foster v Dugger. $23 F.2d 402

(11th Cir. 1987), cert, demed, 487 US 1241,

108 S.Ct. 2915, 101 L.Bd.2d 946 (1988),

Foster v Strickland, 707 F.2d 1339 (lit

Cw. 1983), cert denied, 466 U.S. 993, 104

S.Ct 2375, 80 L.Ed.2d 847 (1984).

FN2. Hitchcock v Dugger, 481 US. 393,

398-99, 107 S.Ct. 1821, 1824, 95 L.Ed.2d 347

(1987) (concluding that an advisory jury must

be instructed to consider, and a sentencing

judge must consider, nonstatutory as well as

eetatiie at )

The resentencing jury recommended death by an

eight-to-four vote and the trial court followed that

recommendation. On remand for resentencing, Foster

filed a third postconviction motion which the trial court

summarily denied. This Court affirmed the denial of

Foster's third postconviction motion. Foster v. State,

614 So.2d 455 (Fla.1992), cert. denied, $10 U.S. 951,

114 S.Ct. 398, 126 L.Ed.2d 346 (1993). However, on

trial court to enter a new sentencing order consistent

with Rogers [FN3] and Campbell. [FN4] /d. at 465.

FN3. Rogers v. State, 511 So.2d 526, 534

nonstatutory mitignors to which it afforded little

weight, [FNS] and three aggravators which it described

as follows:

FNS. 1) Foster murdered Lanier while be was

Page 13

under the wnfluence of emotional or mental

disturhance—not extreme emovona) of mental

disturbance. 2) Foster's capacity to appreciate

the crumunality of hus conduct or to conform his

conduct to the requirement of the law was

impaired—not substantially wpawed. 3)

Foster has an abusive family background. 4)

Foster's poverty, 5) Foster's physical dinesses.

6) Foster's love for, and love by, his family. 7)

Foster's alcoho! and/or drug addiction 8)

Foster's troubled personal life, 9%) Foster's

physical mpuries, 10) Fosters lack of

childhood development, 11) Foster's struggle

with the death of loved ones, 12) Foster's

learning disabilities, 13) Foster's potential for

14) Foster's remorse for the crime

1. The crime for which the defendant is to be

sentenced was committed while he was engaged in

the commission of or attempt to commit, the crime

of robbery.

2. The crime for which the defendant is to be

sentenced was especially heinous, atrocious or

cruel. The circumstances of this killing indicate a

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654 So.2d 112

(Cite as: 654 So.2d 112, *114)

After the second stab wound. the victim was

dragged into the woods where he was covered with

bushes. The marks on the victim's body indicated

to the medical examiner, that the victum was either

alive or dead a very short time before he was being

dragged. It 1s consistent with what happened next

to assume the victim was alive.

After the victum was covered in the woods, one of

the girls accompanying the defendant reported to

the defendant she could hear the victim breathing.

The defendant then went back to the victim, who

was lying face down, uncovered him and cut the

victim's spine with a knife. As described by one

witness, there was no air coming from the body of

the victim after she heard “the cracking” of the

spine. The medical examiner indicated the victim

could have lived 3 to S minutes after his spinal

cord was severed.

3. The capital felony for which the defendant is to

be sentenced was a homicide and was committed in

a cold, calculated and premeditated manner without

any pretense of any moral or legal justification. In

addition to the facts set forth in paragraph 2 above,

the defendant, prior to beginning to beat the victim,

had switched his personal ring with a "K" on it

with one of the girls’ rings in order not to leave the

"K” impression on the victim's skin. One of the

girls testified that the defendant had told her he

planned to rob the victim before the beating began.

Finally, when the defendant was testifying in the

original trial he made the following statement:

"I reckon I'll just cop out. I have done i, killed

him deader than hell. | ain't going to set up here, /

am under oath and | ain't going to tell no fucking

lies. | will ask the Court to excuse my language.

I am the one that done it. They didn't have a damn

thing to do with it /t was premeditated and |

intended to kill him. 1 would have killed him if he

hadn't had no money and | know | never told you

about it but | killed him. (emphasis supplied) [")

The facts of this case, together with the defendant's

in court statement, are sufficient to establish the

heightened degree of premeditation required for

this aggravating factor to apply.

Foster raises three claims in this appeal: 1) the death

penalty is not proportionately warrantec in this case;

2) the trial court erred in concluding that a conflict

existed regarding expert opinion relating to the mental

health mitigators, and 3) the wial court's cold,

calculated, and premeditated (CCP) aggravator

instruction was constitutionally impaired and the giving

of that instruction cannot be deemed harmless error.

Page 14

{1}{2} Having compared this case to other decisions of

this Court, we conclude that death ts proportionate here

and therefore reject Foster's first claim. As to Foster's

second claim, we simply note that this Court has

repeatedly recognized that it is within the purview of

the trial court to determine whether a particular

mitigating circumstance was proven and the weight to

be given it. See. eg. Daugherty v. State, 419 So.2d

1067, 1070 (Fla.1982), cert demied, 489 U.S. 1228.

103 S.Ct. 1236, 75 L.Ed.2d 469 (1983). We find that

the trial court's conclusions regarding the mental health

mitigators are supported by the record and therefore

reject Foster's second claim. While we also reject

*115 Foster's third claim, it does warrant discussion.

At resentencing, the trial court gave the following CCP

aggravator instruction:

[T]he crime for which the defendant is to be

sentenced was committed in a cold, calculated and

premeditated manner without any pretense of

moral or legal justification.

] further instruct you that the defendant's conviction

for first degree, premeditated maurder is insufficient

in and of itself to require a finding that the

homicide was cold, calculated and premeditated for

the purposes of this aggravating circumstance.

The trial court denied defense counsel's request for a

more expansive instruction on the CCP aggravator

{3} The first half of the instruction given in this case

misrors the standard CCP instruction which this Court

held to be invalid in Jackson v. State, 648 So.2d 85

(Fla.1994). [FM6] The second paragraph of the

instruction given in this case was a step in the right

direction, but did not cure the constitutional infirmity

which this Court identified in Jackson Stated

otherwise, the CCP instruction given in this case does

not adequately explain the difference between the

premeditation required to convict for first- degree

murder and the heightened premeditation required to

find the CCP aggravator.

FN6. Because Foster's sentence is not yet final,

Jackson 1s controlling.

[4] Having concluded that the CCP instruction given

in this case was constitutionally impaired, we must

determine whether the giving of that instruction was

harmless error. Jackson explains that in order for the

giving of an erroneous CCP instruction to be harmless,

the State must establish “beyond a reasonable doubt

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—— rs

ee ee ee

654 So.2d 112

(Cite as: 654 So.2d 112, *115)

that the invalid CCP instruction did not affect the jury's

consideration or that its recommendation would have

been the same if the requested expanded mstruction

had been given.” Jackson, 648 So.2d at 90.

This Court previously concluded that there is

competent, substantial evidence in the record to

support the trial court's finding that Lanier's murder

was cold, calculated, and premeditated. Foster. 614

So.2d at 461. We have again reviewed the record,

including "new evidence” presented at resentencing,

and we remain convinced that Lanier’s murder could

only have been cold, calculated, and premeditated.

We find it particularly telling that after having

concealed Lanier's body with bushes, Foster then

proceeded to cut Lanier’s spine with a knife when he

realized that Lanier was still breathing. The fact that

Foster had ample time to reflect on his actions and their

attendant consequences, after concealing Lanier's body

and before cutting Lanier's spine, is compelling

evidence of the heightened level of premeditation

required to establish the cold, calculated, and

premeditated aggravator. See, e.g. Swafford v. State,

-

Page 15

$33 So.2d 270, 277 (Fla.1988), cert. denied. 489 US

1100. 109 S.Ct. 1578, 103 L.Ed.2d 944 (1989),

Jackson v. State, $22 So2d 802 (Fla), cert denied.

488 U.S. 871, 109 S.Ct. 183, 102 L.Ed.2d 153 (1988).

In view of the fact that the trial court found no statutory

mitigators and three strong aggravators, we also find.

beyond a reasonable doubt. that the invalid CCP

instruction did not affect the jury's consideration and

that its recommendation would have been the same if

the requested expanded instruction had been given.

Hence, we conclude that the giving of the erroneous

CCP instruction in this case was harmless error.

Accordingly. finding no error warranting reversal. we

affirm Foster's sentence of death.

It is so ordered.

GRIMES, C.J., and OVERTON, SHAW, KOGAN,

HARDING, WELLS and ANSTEAD, JJ., concur.

END OF DOCUMENT

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IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT

IN AND FOR BAY COUNTY, FLORIDA

STATE OF FLORIDA, Ss

oO

Plaintiff, "

‘S

vs. re

Case No. 75-486 bs

CHARLES FOSTER, ws

>)

Defendant.

ORDER DENYING DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF

THIS MATTER is before the Court on the Defendant’s amended motion for postconviction

relief filed on September 3, 1999. Having reviewed said motion, the court file, the State’s response,

and being otherwise fully advised this Court determined a “Huff’ hearing was required. At the

hearing both the State and the Defendant were given the opportunity to be heard on the need for an

evidentiary heanng on any of the issues raised by the Defendant in his motion. Based on the

arguments presented at the hearing and the motion this Court finds that

The Defendant was sentenced, for the third time, to death for first degree murder and his

conviction and sentences were affirmed. See Foster v. State, 654 So 2d 112 (Fla. 1995). On March

19, 1997, the Defendant filed a 3.850 “shell” motion raising numerous grounds for relief The

Defendant asked the Court for leave to amend so that when the various public agencies had complied

with the Defendant’s public records request, the Defendant could adequately support his claims or

raise additional grounds. The Defendant further stated that the incomplete “shell” motion was filed

in order to toll the time for filing his federal habeas corpus action and because he had not at that time

been provided with conflict-free counsel, and he had not been able to adequately investigate and plead

his claims with specificity. On September 8, 1998, the Court entered an Order Appointing Collateral

Counsel for Capital Post Conviction Relief

On September 7, 1999, the Defendant filed his “.mended Motion for Post Conviction Relief

and stated that “(flor clarity, claims raised in 3 850 shell motion are either abandoned or incorporated

in this amended 3.850. It is therefore unnecessary to refer to original 3.850.” Thus, the Court will

only address the matters raised in the Defendant’ s motion for postconviction relief filed on September

7, 1999. The Court directed the State to respond to the Defendant’s claims. A status hearing was

conducted on March 27, 2000, wherein the state alleged that it had not been cirected by the Court

to respond. The Court again directed the state to respond and the state filed its response in July

2000

The Defendant alleges twenty-nine grounds in his motion, none of which warrant relief. The

000087 —

Wis 8 iT

The Defendant fails to factually support his argument See Flint v_ State. 561 So 2d 1345

(Fla 1* DCA1990), see also LeCroy v_ Dugger. 727 So 2d 236 (Fla 1998)

CLAIM XXX: Mr. Foster's death sentence ts predicated upon an automatic aggravating

circumstance, contrary to the Eighth and Fourteenth Amendments Trial counsel rendered

ineffective assistance in this regard.

The Defendant fails to factually support his claim See Flint v State, 561 So 2d 1343 (Fla

1" DCA1990), see also LeCroy v_ Dugger, 727 So 2d 236 (Fla 1998)

CLAIM A: GROUND I CONSTITUTIONALLY FLAWED HARMLESS ERROR

ANALYSIS

The Defendant complains that the Florida Supremte Court “did not conduct a meaningful or

constitutionally correct harmless error analysis” and claims that a harmless error analysis in a death

penalty case violates due process, equal protection, and the Defendant’s right to an impartial jury

The sufficiency of a court's harmless error analysis cannot be raised in a motion for

postconviction relief See Shere v. State, 742 So.2d 215, 224 n7 (Fla. 1999) A motion to vacate

under Rule 3.850 must be directed to the judgment and sentence of the tnal court and this Court is

not authorized to review a ruling made by the Florida Supreme Court. Moreover, the United States

Constitution does not prevent a state appellate court from upholding a death sentence that is based

in part on an invalid or improperly defined aggravating circumstance either by re-weighing of

aggravating and mitigating evidence or by harmless error review. See Clemons v_ Mississippi, 494

U S. 738 (1990). Thus, the Defendant’s claim is without merit.

CLAIM B: GROUND II VIOLATION OF RIGHT TO IMPARTIAL JURY

The Defendant alleges that he was denied his nght to an impartial jury due to the Prosecutor's

participation in the “venire pre-selection” process in Bay County. He claims the jury that tned him

was not a fair cross-section of the community resulting in unconstitutional, systematic exclusion of

a significant portion of the population from the jury pool.

The Defendant’s claim is without merit. In Remata v. State , 522 So.2d 825 (Fla. 1988), the

Florida supreme court said: .

It is important to understand the distinction between the general qualification of the

jury by the court and the qualification of a jury to try a specific case. In the former,

the court determines whether prospective jurors meet the statutory qualification

standards or whether they will not qualify because of physical disabilities, positions

they hold, or other personal reasons. The general qualification process is often

conducted by one judge, who will qualify a panel for use by two, three, or more

judges in multiple trials. Counsel or a defendant does not ordinarily participate in this

type of qualification process, although neither is excluded from doing so. In many

instances, counsel and the defendant are not present because this preliminary

qualification process occurs days prior to the trial. ,

000095

Id at 828 7

Section 40 013, Florida Statutes, provides that any expectant mother or parent with a voung

child may be exempted from jury duty on request, does not deny an accused his nght to a fair cross

section of the community on his jury See Vasil v_ State, 374 So 2d 465 (Fla 1979). cert_den 440

L S 967 (holding that the fact that provisions now contained in Fla Stat 40 013, which allows

expectant mothers and mothers of minor children the option of being excluded from jury service does

not violate a defendant's constitutional nght to a jury trial from representational cross-section of

community, because class made subject to being excluded under this section is not so distinctive as

to invoke constitutional concern), Marshall v Holmes, 365 F Supp 613 (ND Fla 1973). affirmed

495 F 2d 1371. certiorari denied 95 S Ct 825, 420 US 907, 42 L Ed 2d 836 (the fact that female

jurors having children under 18 years of age could obtain exemption from jury duty on their request

did not invalidate jury selection statute), Parker v_ State, 456 So 2d 436 (Fla 1984)

The Defendant's reliance upon Alachua County Court Executive v. Anthony, 418 So. 2d 264

(Fla. 1982), is misplaced since that case dealt with whether the statute violated the equal protection

clause since the statute as it read then, only excluded mothers and not fathers of minor children. The

application of the then existing statute did not compromise the integrity of the jury. Thus, the

Defendant's claim is without merit

CLAIM C: GROUND III VIOLATION OF DOUBLE JEOPARDY PROTECTION

Next the Defendant claims a jury verdict as to both felony murder and premeditated murder

constitutes fundamental error, amounting double jeopardy and due process iolations. The Defendant

claims when a jury reaches two separate verdicts and then conducts penalty phase deliberations, it is

improperly influenced as to the existence of a cold, calculated and premeditated aggravator.

The Defendant’s claim is procedurally barred. See Rutherford v_ State, 727So.2d 216 (Fla

1998) However, had the Defendant properly raised the claim, he would still be without relief’ The

Defendant does not allege that he was adjudicated on both the first degree murder and felony murder.

Rather the Defendant admits that he was convicted of first degree murder and robbery and thus, there

was no error. In Lamb v. State, 532 So.2d 1051 (Fla. 1988), the Florida supreme court found no

constitutional problem where a defendant was indicted and found guilty of both first-degree

premeditated and felony murder stemming from a single death, but was only adjudicated guilty of one

murder charge. Thus, there the Defendant’s claim is without merit. See Lamb v_ State, 532 So.2d

1051 (Fla. 1988)

CLAIM D: GROUND IV DEFENDANT’S CONFINEMENT ON DEATH ROW FOR

TWENTY THREE (23) YEARS CONSTITUTES CRUEL AND UNUSUAL

PUNISHMENT UNDER THE UNITED STATES AND FLORIDA

CONSTITUTIONS

The Defendant’s claim is without merit. See Knight v. State, 746 So.2d 423 (Fla 1998)

(holding that spending more than two decades on death row is not cruel and unusual punishment).

GROUND E: GROUND V CRUEL AND UNUSUAL PUNISHMENT

000096

The Defendant claims he 1s “innocent of the death penalty” and the death penalty as a concept

is cruel and unusual punishment The Defendant's claim is without merit See Davis v_ State. 742

So 2d 233 (Fla 1999), Provenzano v_Moore, 744 So 2d 413 (Fla 1999). and Jones \ State. 59)

So 2d 911, 916 (Fla 1991)

GROUND F: GROUND VI BRADY RULE VIOLATION

| Last the Defendant claims a Brady violation and points to a letter that states the Defendant

is “obviously mentally disturbed.” The Defendant alleges that had this information been available,

it would have “been compelling to a jury.”

The Defendant has failed to allege prejudice as contemplated by Strickland and his motion is

properly denied The Defendant fails to allege the letter written in 1975 was something the state

uniquely knew, which would require a Brady disclosure. See State v_ Counce, 392 So. 2d 1029 (Fla

4" DCA 1981), Jones v. State, 732 So.2d 313 (Fla. 1999) (finding no Brady violation where the

document was neither material or exculpatory), Robinson v. State, 707 So.2d 688, 693 (Fla. 1998)

(defendant did not carry his burden where record was not clear that state had suppressed evidence

and where it was highly debatable that evidence was exculpatory). The Defendant merely states it

would have been compelling to a jury, and does not allege the outcome of the proceedings would

have been different. The possibility that an item of undisclosed information might have helped the

defense, or might have affected outcome of trial, does not establish "materiality". See Gorham v.

State, 521 So.2d 1067 (Fla. 1988). The Defendant does not allege when this information was

discovered and thus, his claim is time barred.

Moreover, in light of the Defendant’s admission the Defendant’s claim cannot meet the

requisite showing of prejudice. See Hegwood v. State, 575 So.2d 170, 172 (Fla.1991) (to establish

Brady violation, one must prove that had the evidence been disclosed, a reasonable probability exists

that the outcome of the proceedings would have been different). The Defendant has previously raised

a Brady claim to which the Florida Supreme Court ruled that “there is no reasonable probability that

the outcome of the trial would have been different had any of the evidence Foster now asserts was

not disclosed or not discovered been presented.” Foster v. State, 614 So.2d 455 (Fla.1992). Thus,

his claim is without merit. It is therefore, ~

ORDERED AND ADJUDGED that the Defendant’s motion is hereby DENIED. Further,

the Defendant has the right to appeal within thirty days from entry fate order.

DONE AND ORDERED in Bay County, Florida thig? 7 day of December, 2000

, . ULE, BUVENNINEL UE CUE Ue Seen ons > ied becoming exhausted. i “u

40UZ Selection of pury lists by county Commission comenined within this state, — eS — ew -— DISQUALIFICATION, EPvECT OF. : . rd Sa

nec of lists in large counties. be qualified to serve as a juror un restored v so shall ascert _— disqua 4 a

3 Selection of jury tists! : ights. or incompetent to serve 4 ;

40.04 Selection of jury lists in small counties. HED). In the selection of jury lists only such persons fication shall not effect the legality of such list or be

4005 Selection of jury lists in new counties. as the selecting officers know, or have reason to be- cause of challenge to the array of any jury —— hb

Transcription and preservation of lists. r are law-abiding citizens of approved integrity. ; such list, but any person ascertained to - @

yd Addresses of persons on jury lists. goed character, sound judgment and intelligence, vralified to serve as a j ror, shall be subject to c :

) <0 07 Persons disqualified. ut and who are not “poy or mentally infirm, shall for cause, as ned , VICE. ~The

rsons exempt from jury duty. _ lected for jury duty. 3 EFFECT PRIOR SER “

" 40.09 on commisstons, counties exceeding 120, a) Where in the laws “ot pory lets ~heeee tact that any poresn cocstocted hed amne oa

000. , and the preparation of jur list or had served as a

40.10 Duties of commissioners; jury lists. a male persons, such reference shall in each - shall not be grounds for challenge of such per- ,

40.101 Use of mailed questionnaires. instance be taken and construed to mean male and con a0 © jurer. aa

' . : lists. . 4015, 1891,» 2 7. ver wee

40.13 ee oe commissioners. we) Wherever jurors are owns ne or by wi aires 3. ch 12088, 1927. OGL 4444, 8 1. ch 28281, 1963, 8 3. ch :

. : in county. of rt, to be kept togethe r during conden Piss. » 6. :

40 22 _Isouance of wemie ofa tral or whileconaderingtheirverdicorwhew: TMI som ot jury lata im large counties. *

40.23 Summoning petit jurors. ever by order of court lodging end vest veom —In each county, except those counties having © s!

Jury pools. “ned juries, separate ng fferent commission, which has or may have a popu k:

$0.24, Pay of jurors facilities shall be provided for jurors of Steal xen exceeding 85,000, according to the last preced-

' sien. nder contemplation of law "feds census, the county

40.28 Meals ae si to have been kept ——s —— -4 .. BA - — J and making up the lists

40.27 Failure of jurors to attend; penalty. * jurors of + sexes — — of epenrunen jurors as ° provided by a

Om Saye draw e summon jurors, punish- (6) Whenever female persons are sitting on ~ — = 000 — aS to serve as jurors. ©

_— oa ne jury, and it becomes necessary py te ere ye ry .

10.29 Clr tcstimate amount fr py afro Eola athe chrge fan fin afemae i

and witnesses and make , or deputy sheriff hom such juries lists in small counties. ,,

Requisition endorsed by Comptroller and in addition to the male officer to who dees 40.04 Selection of jury pet com

as by Governor are customarily committed, and all existing of such each county which has a population than,

= apportion appropriation. | ating to the dutics and cbligations © ~ we inhabitants, according to the last my .

= ~ =—- disburse money. male officer shall apply with like force and — + of county ‘ded by law shall

. . such female officer. 1STio Lm time = : 200 nor *

40.33 Deficiency. = L History.—s 2 ch. 4015, 1891, se. 1 2 ch 4122, 1889, GS 1570. 1900-8 | o and make out a list of not less than d

| $2.35. ‘Accounting and payment to the Comptrol- gitaaeesimt etn CESS En Gt itprses ss mmiect and make out «list of not les thee cas

ter. , j = . ' 7840, 1919, CGL 4446 .

40.36 Drawing jury venire, petit and grand; term , of j ists by county com Ristory —s |. ch :

wrema jory venize, alternative method. missioncrs.— LLY —In 40.05 Selection of jury lists in new counties.

40.371 ey jury = ° (1) SELECTION OF LISTS, pay eget ~The county commissioners of 7 oe — r

40.39 —— j A all counties, except those having © eee dur mreafter created, at ant for in the actcre ,¢

40.40 Drawing . ” of service. the county commissioners shall a r or as soon of county commissioners provided pop

40.41 Petit jurors; length ing the first week in January of each yea times @5 sting such new county or as soon thereafter a8 p t

4042 Deficiency of jurors. : ’ issions thereafter as practicable and at such other lect: ticable. shal! select from the list of persons are

40.43 Deficiency or excess in jury box; om the circuit judge may order, for the purpose of Sr ified to serve as jurors under the provisions of se t

' ' comm | make a list as prov

“ ot eilprconaiy tet fom he it ernie (MB gach hl be aged nd Feo at |

40.01 Qualifications and disqualifications are qualified to serve as jurors under the oo 250 Provided by s. 40.02. The clerk of the qe comes ‘

™~ fi of s. 40.01, and make out a list of not less tier i, shali write the said names on pieces of paper

(1) Grand end petit jorere shalt ~ foment oer more than 1500 persons properly — ver Place such pieces of paper in a box and shall close

the male and female persone ot least US) Yau resided serve as jurors, which list shall be signed #00, 1 and seal such box as provided by s OR a8 oe

who are citizens of this state and ive coun- fied by said commissioners as having been ene the ®therwise comply with all the provisions of s

in this state for 1 year and in their respective " as aforesaid and as possess! n- ae 1 2 ch BSN9, 1921, OGL 4447, 4454, 5 7. ch 22868 16S 24 |

°i ths, and who are fully qualifiedelectors ly sel ifications according to their best son ,

of thee rege, counting: however Apsara ud tcl be fer o—_ :

mothers and mothers with children under 1S years livered to the clerk of the circuit court and ®t, 40.06 Treneutytienent perme -

of age, upon their — aun recorded in the minute book of the “ fe da “- persons — 40.02,the ©

ertD No person who shall have been quvieted of commie. LESS THAN MINIMU™ Clerk of the circuit court, in the presence of thecoun-

(2) No person ithi state (2) SELECTION OF coun

waattetden other stave —— or NUMBER.—If, in any county of this state, the 203

or under the laws of any .

202

aie

, . ULE, BUVEN NETL GE CUUELE » Ho Heme oe tiac ty i ted becoming exhausted. = a

102 Selection of yury lists by county Commission committed within this state, a oe ae “a caquAlscas aa ~

fe of jury lists in large counties. be qualified to serve as a juror unless a wen a— ev sorenenapanes such disquali- =

‘ Selection of jur : : i ’ : 7 incom 4 4 :

0 O4 Selection of jury lists in small countjes. oy In the selection of jury lists only such persons oh shall not effect the legality of such list or b be .

40.05‘ Selection of jury lists in new counties. as the selecting officers know, or have reason to be- : cause of challenge to the array of any jury a ™ ©

40.06 Transcription and preservation of lists. lieve, are law-abiding citizens of approved integrity, ; @ such list, but any person ascertained to hort cl

40.061 Addresses of persons on jury lists. ood character, sound judgment and intelligence, moor ied to serve as a juror, shall be subject to chal- —

40.07 Persons ——— — oad who are not physically or mentally infirm, shall a for cause, as : —~-4 b ny SERVICE —The

empt from jury duty. for jury duty. . : FFECT OF . “

40.09 Jury comeniontons, counties exceeding 120,- “—— wy i: the laws of Rnite peetaining . aR. any person so selected had noe =

. ; : d the preparation of jury ' had seryed as a juror in ’

40.10 putes of commissioners, jury lists. eae cana j nen ay such reference shall - each cater not be grounds for challenge of such per- ,,

40.101 Use of mailed questionnaires. instance be taken and construed to mean male and os © jurer. - &

11 Certification of jury lists. female persons. ; y ne 2, ch 4015, 1891, s 2 ch 4122, 1893, GS 1671, s 1. ch 6531,

boys Compensation of jury commissioners. ne —, jarore are required by law or by

40.20 Deficiency in county.

40.22 Issuance of venire. of a trial, or while considering their verdict, or when-

97-154. 5 6. ch 73.3%

40.23 Summoning petit jurors.

ve

Pp

a

: in large counties.

ag ired to be fur- 40.03 Selection of jury lists n

over Oy — — ~y~ om room —In each county, except those mom oe -y- we he si

Jur Is. nished juries, separate ng . mission, which has or may have a popu k:

40.231 y poo J ded for jurors of different jury com \ reced-

40.24 Pay of jurors. f facilities shall be provi , aa law jurors shall tion exceeding 85,000, according to the aat Pp :

= ee cones, and under ee whenever the ing state or federal census, the —

40.26 Meals for jurors. be deemed to have been kept “ accommodations commissioners, in selecting and making up t _

40.27 Failure of jurors to attend; penalty. * jurors of different sexes occupy oa of persons to serve as jurors as provided by law, s

40.271 Jury service. | ~ jurors; punish- Provided for their respective BaAOS. sitting on any select and make out a list of not less than 1,000 nor

40.28 Failure to draw or summon jurors, punis (6) Whenever female person that said jurors be more than 2,000 persons qualified to serve ~~ — e

ment. f of jurors JUry, and it oe inden & female bailiff History.—« 1, ch. 7753, 1918, RGS 2773; » 3, ch 12068, 1927,

40.29 Clerks to estimate — ~~ eisition committed to i Shall'be provided to attend said jury L,ch 21740, 1943 “

and witnesses and make requisition. or deputy er ake dives tn ahem cath pe ‘404 Selection of jury lists in small counties.

jurors. ishment ly SLEEVE Hd Juivio, war ia sae viteeed Ve dog uecu

40.02 Selection of jury lists by county commis- 40.29 Clerks to estimate amount for pay of and verified by said commissioners as having

sioners. jurors and witnesses and make req- been personally selected as aforesaid and as

40.03 Selection of jury lists in large counties. uisition. . possessing the prescribed qualifications accord-

40.04 Selection of jury lists in small counties. 40.30 Requisition endorsed by comptroller and ing to their best information and belief. Said

4 40.05 Selection of jury lists in new counties. countersigned by governor. : list shall be forthwith delivered to the clerk of

> 40.06 Transcription and preservation of lists. 40.31 Comptroller may apportion appropria- . a me Gash of te ben one ge be.

40.061 Addresses of persons on jury lists. tion. ‘

40.07 Persons disqualified. 40.32 Clerks to disburse money. stoners.

40.08 Persons exempt from jury duty. 40.33 Deficiency. (2) SELECTION OF LESS THAN MINI.

40.09 Jury commissions, counties exceeding 40.34 Clerks to make triplicate payroll. MUM NUMBER.—If, in any county of this

one hundred twenty thousand. 40.35 Accounting and payment to the comp- state, the county commissioners shall not be

40.10 Duties of commissioners; jury lists. troller. able to select the number required by this

40.101 Use of mailed questionnaires. 40.36 Drawing jury venire; petit and grand; section they shall be authorized to select a

40.11 Certification of jury lists. term and vacation. less number.

os pompeneation of jury commissioners. 40.371 a. jury venire; alternative ‘ (3) ADDITIONAL LISTS.—The circuit

. eficiency in county. methed. judge may require th ty commissioners

40.22 Issuance of venire. 40.39 Clerk of court; duty. to catest "additional tag = a time to

40.23 Summoning petit jurors. 40.40 Drawing grand jurors. time as may appear to such judge to be

40.231 Jury pools. 40.41 Petit jurors; length of service. necessary to avoid the names selected be-

40.24 Pay of jurors. 40.42 Deficiency of jurors. _ coming exhausted.

a ao = | ay = ie vacation. 40.43 ee! = excess in jury box; omis- (4) DISQUALIFICATION, EFFECT OF —

; . \ ° ’ A , . If any person so selected shall be ascertained

40.27 Failure of jurors to attend; penalty. . to be ~~ = - mar ~“— as

‘ a juror, such disquali tion s not effect

P 40.01 Qualifications and disqualifications of during the conduct of a tvial, or while consider- +" yey -

urors.— ing their verdic

the legality of such list or be cause of chal-

= heir t, or whenever by order of court lenge to the array of any jury chosen from

*(1) Grand and petit jurors shall be taken lodging is required to be furnished juries, sepa- such list, but any person ascertained to be

from the male and female persons over the age rate lodging and rest room facilities shall be

of twenty-one years, who are citizens of this

; i disqualified to serve as a juror, shall be sub-

provided for jurors of different sexes, and un-

state and who have resided in this state for

P : a. “ ! oye . ject to challenge for cause, as defined by law.

; ; r i er contemplation of law jurors sha eeme ‘FF ¥ ‘

one year and in their respective counties for to have been kept together whenever the jurors i , J + aot — rod — pana

six months and who are fully qualified electors of different sexes occupy the accommodations been on a former jury list or had served asa

of their respective counties; provided, how- provided for their respective sexes. juror in any court at any time shall not be

ever, that expectant mothers and mothers with (6) That whenever female persons are sit-

children under eighteen years o j. am"

369 So.2d 928

(Cite as: 369 So.2d 928)

Charles Kenneth FOSTER, Appellant,

‘

STATE of Florida. Appellee.

No. 48380.

Supreme Court of Florida

Feb. 22. 1979

Rehearing Denied May !0, 1979

The Circuit Court, Bay County, Mercer P. Spear, J.,

convicted defendant of first-degree murder and of

robbery and imposed death sentence. and defendant

appealed. The Supreme Court. Adkins, J.. held that:

(1) trial court did not commit reversible error in

allowing removal for cause of prospective jurors who

stated that they could not and would not return verdict

of guilty if penalty might result in death, (2) trial court

did not err in admitting into evidence gruesome and

offensive photographs, (3) death penalty statute was

constitutional, and (4) aggravating circumstances

supporting death penalty were proved beyond a

reasonable doubt.

Affirmed.

|1}] JURY C108

230k 108

Person who has beliefs which preclude him from

finding defendant guilty of an offense punishable by

death is not qualified as a juror in a capital case.

West's F.S.A. § 913.13.

{2} CRIMINAL LAW @ 1166.16

1 10k1 166.16

In murder prosecution, trial court did not commit

reversible error in allowing removal for cause of

prospective jurors who indicated that they could not

and would not return verdict of guilty if penalty might

result in death. West's F.S.A. § 913.13.

{3} CRIMINAL LAW @=438(7)

110k438(7)

In murder prosecution, trial court did not err in

admitting into evidence gruesome and offensive

photographs, even though there was no question as to

identity of victim and cause of death.

|4] STIPULATIONS @> 14(10)

363k 14(10)

A defendant cannot. by stipulating as to identity of

homicide victim and cause of death, relieve State of its

Page 13

burden of proof bevond reasonable doubt

{S| CRIMINAL LAW @1206.1(2)

110k1206.1(2)

Formerly | 10k1206(1)

Death penalty statute is constitutional Wests FSA §

921.141(5).

|6] HOMICIDE @=357(4) -

203k357(4)

Formerly 203k354

In murder prosecution. aggravating circumstances

supporting death penalty were proved beyond

reasonable doubt. West's F.S.A. § 921.141(5).

[7] HOMICIDE @=357(4)

203k357(4)

Formerly 203k354

When one or more of aggravating circumstances 1s

found, death is presumed to be proper sentence unless

it or they are overridden by one or more of the

mitigating circumstances, all evidence of mitigating

circumstances may be considered by judge or jury.

West's F.S.A. § 921.141(5).

"928 Louis G. Carres, Asst. Public Defender.

Tallahassee. for appellant.

Jim Smith, Atty. Gen., and Richard W. Prospect. Asst

Atty. Gen., Tallahassee, for appellee.

ADKINS, Justice.

This is a direct appeal from « judgment adjudging

defendant guilty of murder in the first degree and a

sentence of death. He was also adjudged guilty of

robbery and sentenced to life imprisonment.

Anita Rogers, 20 years of age, and Gail Evans, |8

years of age, met defendant and *929 the victim,

Julian Lanier, at a bar. They knew defendant, but the

victim was a stranger.

The girls, after a discussion, agreed to go the the

beach or somewhere else to drink and party with the

men. The victim bought whiskey and cigarettes, after

which the four of them left in the victim's Winnebago

camper. The victim was quite intoxicated and

surrendered the driving chore to Gail. The defendant

and the girls had planned for Gail to have sex with the

victim and make some money. Gail parked the vehicle

in a deserted area and, after some conversation

concerning compensation, the victim and Gail began

to disrobe.

Copr. © West 1999 No Claim to Orig. U.S. Govt. Works

369 So.2d 928

(Cite as: 369 So.2d 928, *929)

Defendant suddenly began hitting the victim and

accusing him of taking advantage of his sister

Defendant then held a knife to the victim's throat and

cut his neck, causing it to bleed profusely. They

dragged the victim from the trailer into the bushes

where they laid him face down and covered him with

pine branches and leaves. They could hear the victim

breathing so defendant took a knife and cut the

victim's spine.

The girls and defendant then drove off in the

Winnebago and found the victim's wallet underneath a

mattress. The defendant and the girls split the money

found in the wallet and left the vehicle parked in the

parking lot of a motel.

The next morning Anita Rogers went to the Sheriff's

Department and reported what had happened. She had

been committed to a mental institution when she was

13 years of age and was not charged with any offense

in this case.

Defendant was charged by an indictment with the

offenses of first-degree murder and robbery.

The defendant testified and, during his description of

the events of the evening, testified as follows:

I reckon I'll just cop out. | have done it, killed him

deader than hell. | ain't going to set up here, | am

under oath and | ain't going to tell no fucking lies. |

will ask the Court to excuse my language. | am the

one that done it. They didn't have a damn thing to do

with it. It was premeditated and | intended to kill

him. | would have killed him if he hadn't had no

money and | know | never told you about it, but |

killed him.

The jury returned verdicts finding defendant guilty of

robbery, premeditated murder in the first degree, and

felony murder. After the sentence hearing, the jury

returned an advisory verdict unanimously

recommending that defendant receive the death

penalty. The court then proceeded to sentence

defendant to death on the murder charge and to life

imprisonment on the robbery charge.

Defendant says error was committed when the trial

court excused certain prospective jurors because of

their conscientious objection to the death penalty,

relying upon the following principle enunciated in

Witherspoon v. Illinois, 391 U.S. 510, 521-23, 88

S.Ct. 1770, 1776-7, 20 L.Ed.2d 776 (1968):

Specifically, we hold that a sentence of death cannot

be carried out if the jury that imposed or

Page 14

recommended it was chosen by excluding veniremen

for cause simply because thes voiced general

objections to the death penalty or expressed

conscientious or religious scruples against its

infliction No defendant can constitutionally be put

to death at the hands of a tribunal so selected.

The decisions of this Court have been in accord with

the holding in the Witherspoon case, Supra. See

Campbell v. State, 227 So.2d 873 (Fila.1969);

Paramore v. State, 229 So.2d 855 (Fla. 1969).

{1} A person who has beliefs which preclude him

from finding a defendant guilty of an offense

punishable by death is not qualified as a juror in a

capital case. Section 913.13, Florida Statutes (1975).

[2] The voir dire examination discloses that Joe C.

Smith could not and would not return a verdict of

guilty if the penalty might result in death. A similar

situation existed as to prospective juror John Douglas

Hunt. The prospective juror Deloris Swearington was

not as adamant as the others, but she was challenged

peremptorily and not for cause. Only two jurors were

*930 challenged for cause over objections of

defendant because of their beliefs against the death

penalty. Similar objections were found to be without

merit in Campbell v. State, supra; Williams v. State,

228 So.2d 377 (Fia.1969); Perkins v. State, 228 So.2d

382 (Fla.1969); Paramore v. State, supra; and Portee

v. State, 253 So.2d 866 (Fla.1971). The lower court

did not commit reversible error in allowing the

removal for cause of these prospective jurors. We

might add that the defendant, in his testimony, made

the following statements:

Weill, if the judge will accept my plea of guilty and

Guarantee | will be electrocuted for taking this man's

life,-that's what | want. | got this robbery charge,

you know, we didn't rob that man.

Anybody knows you can't take nobody's life and

That's why | want to die for it. | mean I ain't crazy. |

don't know if | got demons in me or not, but | believe

I do. I went to church Sunday night to get them

taken out. (Emphasis added.)

[3] Defendant also complains that gruesome and

inflammatory photographs were admitted into

Defendant argues that there was no question as to the

identity of the victim or the cause and manner of his

death, so the photographs served no evidentiary

purpose.

The photographs were indeed gruesome and

Copr. © West 1999 No Claim to Orig. U.S. Govt. Works

369 So.2d 928

(Cite as: 369 So.2d 928, *930)

offensive However. the, met the guidelines set bs

this Court in Bauldree \. State. 284 So.2d 196, 197

(Fla.1973)

In State v. Wright. 268 So.2d 361 (Fla.1972). we

commented on and stated the proper test as follows

. Appellant interprets the Young case ( Young v

State. 234 So.2d 341 (Fla.1970)) as holding that

‘necessity’ rather than ‘relevancy’ is the test for

admissibility of gruesome photographs. ‘Necessity’

may be a consideration where. as in Young. large

numbers of cumulative photographs of a gruesome

nature taken away from the scene of the crime. are

offered into evidence. But relevancy remains the

basic test, as stated in Young: (S$. Id. at 347)

‘The fact that the photographs are offensive to our

serises and might tend to inflame the jury is

insufficient by itself to constitute reversible error. but

the admission of such photographs. particularly in

large numbers must have same (sic) relevancy. either

independently or as corroborative of other evidence

"Thus, the current position of this Court is that

allegedly gruesome and inflammator, photographs

are admissible into evidence if relevant to any issue

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

determined in the normal manner, that is. without

regard to any special characterization of the

proffered evidence. Under this conception, the

issues of ‘whether cumulative. or ‘whether

photographed away from the scene,’ are routine

issues basic to a determination of relevancy, and not

issues arising from any ‘exceptional nature’ of the

proffered evidence.”

[4] A defendant cannot, by stipulating as to the

identity of a victim and the cause of death. relieve the

State of its burden of proof beyond a reasonable

doubt.

One photograph was introduced during the penalty

phase of the proceeding to show that the death blow

was delivered with such tremendous impact that it

went through the victim's spinal column and severed

the victim's spinal cord. This was evidence of the

atrocious manner in which the victim was murdered

and the deliberate, cold-blooded intent of the

defendant.

[S}] Defendant contends that the death penalty statute

is unconstitutional. He recognizes that the statute was

upheld in State v. Dixon, 283 So.2d | (Fla.1973), and

Alford v. State, 307 So.2d 433 (Fila.1975), but

requests that we reexamine our prior decision. He

argues that the statute does not meet constitutional!

muster because of the discretion of the state attorney

Page 15

in making the charge. as well as the discretion of the

State attornes to plea bargain He also refers to the

discretion of the jury to convict a defendant of a

homicide less than capital and thereby spare

defendant's life. He also refers to the discretion

involved in *931 grants of executive clemency All of

these objections have been considered by this Court.

as well as the Supreme Court of the United States

The Florida death penalty statute is constitutional.

Proffin +. Florida, 428 U.S. 242. 96 S.Ct. 2960. 49

L.Ed.2d 913 (1976).

At the sentence hearing the defendant produced Dr.

John F. Mason, a psychiatrist, who testified as to the

mental and emotional condition of the defendant’ The

defendant also produced his former wife who testified

concerning the mental and emotional instability of the

defendant. The jury recommended that the death

sentence be imposed. The trial judge found that the

murder was committed while defendant was engaged

in the commission of a robbery and that the capital

felony was especially heinous and atrocious. He found

that sufficient aggravating circumstances existed as

enumerated in Section 921.141(5), Florida Statutes

(1975), that justified a sentence of death. He found

that there were no mitigating circumstances to

outweigh the aggravating circumstances. There was

no presentence report filed in the case or considered

by the trial judge.

Defendant contends that the felony was committed

while the defendant was under the influence of

extreme mental or emotional disturbance and the trial

court did not consider this mitigating factor The

following instruction was given to the jury before they

deliberated upon the penalty:

If one or more aggravating circumstances are

established you should consider all the evidence

tending to establish one or more mitigating

circumstance and give that evidence such weight as

you feel it should receive in reaching your

conclusions as to the sentence which should be

imposed.

Before imposing the death sentence. the trial judge

considered three psychiatric reports (with which

defendant's attorney was familiar) and found that there

were no mitigating circumstances sufficient to

overcome the heinous nature of the homicide. The

defendant committed the homicide in an effort to

fulfill his intentions and complete his desire, I. e.,

“ripping the victim off." An elderly gentleman had

agreed to go out and have some fun, but the price of

such activity was his life. Defendant showed no

compassion when he cut the victim's throat, beat him,

Copr. © West 1999 No Claim to Orig. U.S. Govt. Works

a =

369 So.2d 928

(Cite as: 369 So.2d 928, *931)

dragged him into the woods. and cut his spine with a

knife. As described by one witness. there was no air

coming from the body of the victim after she heard

“the cracking” of the spine.

[6}[7] The aggravating circumstances were proved

beyond a reasonable doudt. As stated in State v

Dixon, 283 So.2d at 9,

When one or more of the aggravating circumstances

is found, death is presumed to be the proper sentence

unless it or they are overridden by one or more of the

mitigating circumstances provided in Fla.Stat. s

921.141(7), FSA. All evidence of mitigating

circumstances may be considered by the judge or

Jury.

In Sullivan v. State, 303 So.2d 632 (Fla.1974), the

sentence of death was appropriate where defendant

and an accomplice conducted an assistant manager of

a restaurant to a swampy area, fully intending to

murder such victim, and where the 25-year-old

defendant with no prior criminal record shot the victim

with both barrels of a shotgun in the back of the head.

The death sentence was appropriate when a murder

was committed while the defendant was engaged in the

burglary of the deceased's home. This murder was

found to be especially heinous, atrocious, and cruel,

and the jury recommended the death penalty. The

defendant had been previously convicted of burglary

(this differs from defendant Foster), but the atrocious

nature of the crime coupled with the burglary were

Page 16

other aggravating circumstances sufficient to warrant

the death penalty. Proffitt +. State. 31S So.2d 461

(Fla.1975). Affd. 428 U.S. 242. 9% S.Ct. 2960, 49

L.Ed.2d 913 (1976)

Where defendant had a lengthy history of violence

(just as defendant Foster), had demonstrated callous

indifference to human life, and where his acts were for

pecuniary gain. the death penalty was properly

imposed. Henry v. State, 328 So.2d 430 (Fla.1976).

Although the findings of the trial judge in the case

Sub judice were not expansive, *932 the justification

of his sentence of death in writing was sufficient to

show that the sentence of death resulted from reasoned

judgment. This reasoned judgment comports with our

consideration of other cases and the sentence of death

was appropriate under the circumstances.

Other questions raised by defendant have been

considered and are without merit.

The judgments and sentences of the trial court are

affirmed.

It is so ordered.

ENGLAND, C. J., and BOYD, OVERTON,

SUNDBERG and HATCHETT, JJ., concur.

END OF DOCUMENT

Copr. © West 1999 No Claim to Orig. U.S. Govt. Works

614 So.2d 455

17 Fla. L. Weekly S658, 18 Fla. L. Weekly $215

(Cite as: 614 So.2d 455)

Charles Kenneth FOSTER, Appellant,

V

STATE of Florida, Appellee.

No. 76639.

Supreme Court of Florida.

Oct. 22, 1992.

Rehearing Denied April |, 1993

Defendant was convicted in the Circuit Cour, Bay

County, of murder and sentenced to death and he

appealed. The Supreme Coun affirmed, 369 So.2d

928. Denial of first and second postconviction

motions were affirmed by the Supreme Cour, 400

So.2d 1, and $18 So.2d 901, but resentencing was

ordered. Denial of federal habeas corpus petitions was

affirmed by the Court of Appeals, 707 F.2d 1339, 823

F.2d 402. On remand from resentencing, the Circuit

Coun, Bay County, Don T. Sirmons, J., entered

sentence of death and defendant appealed. The

Supreme Court held that’ (1) defendant had not

received ineffective assistance of counsel; (2) jury

was adequately instructed on mitigating circumstances;

(3) court properly overruled challenges for cause; but

(4) sentencing order was defective for failing to state

whether court had found certain mitigating

circumstances tO exist

Affirmed in par and vacated and remanded in pan

Barken, C.J.. concurred in part and dissented in par

and filed an opinion in which Shaw and Kogan, JJ.,

concurred.

Kogan, J.. concurred in part and dissented in part and

filed an opinion.

{1] CRIMINAL LAW @=998(21)

1 10k998(21)

Successive postconviction motion may be dismissed if

it fails to allege ms or different grounds for relief and

the prior determisiation was on the merits or, if new

and different grounds are alleged. the failure to raise

those issues in prior motion constitutes an abuse of

process. West's FS A RCrP Rule 3.850

[2] CRIMINAL LAW @998(21)

1 1O0k998(21)

Postconviction motion alleging ineffective assistance

of counsel was an abuse of process where there was no

Page 24

showing of justification for the failure to raise it in

either of the two prior motions. West's F.S.A. RCrP

Rule 3.850.

{3} CRIMINAL LAW @=641.13(6)

110k641.13(6)

In view of defendant's confession, there was no

reasonable probability that outcome of trial would

have been different had counsel! obtained additional

evidence, so that defendant did not show ineffective

assistance of counsel.

[4] CRIMINAL LAW @=996(3)

1 10k996(3)

Witness’ unavailability at resentencing hearing, so as

to make her prior testimony admissible, was

established by evidence that investigators had been

unable to locate her or her former husband, that they

had called telephone number given to them a number

of times and have left messages for the witness, who

never returned the calls, and that attempts to subpoena

her were unsuccessful.

|S] CRIMINAL LAW @ 662.60

1 10k662.60

Defendant's right to confrontation was not abridged

when prior testimony of witness was admitted at

resentencing hearing where court admitted the witness’

cross-examination testimony in addition to her direct

testimony.

6] WITNESSES @=337(4)

410k337(4)

It was not an abuse of discretion to exclude evidence

of witness’ 1989 convictions when admitting at

resentencing hearing testimony which she had given at

the first trial in 1975.

{7} CRIMINAL LAW @996(3)

1 10k996(3)

There was no Brady violation by state's failure to

provide defendant with mental health records of

witnesses at resentencing hearing where the state

denied having the records.

{8} HOMICIDE @=—357(3)

203k357(3)

Finding that murder was especially heinous, atrocious,

or cruel, and cold, calculated, and premeditated, thus

authorizing imposition of death penalty. was supported

by evidence that victim was severely beaten prior to

having his throat slit, that victim was pulled from

vehicle by his genitals and stabbed in the throat a

Copr. © West 1999 No Claim to Orig. U.S. Gow. Works

ed ee

614 So.2d 455

(Cite as: 614 So.2d 455)

second time, that he would have lived 20 to 30

minutes after the wound was inflicted, that defendant

then cut the victim's spine with a knife, and that victim

would have lived three to five minutes after the spinal

cord was severed. West's F.S.A. § 921.141(5)h, i).

{8} HOMICIDE @=357(11)

203k357(11)

Finding that murder was especially heinous, atrocious,

or cruel, and cold, calculated, and premeditated, thus

authorizing imposition of death penalty, was supported

by evidence that victim was severely beaten prior to

having his throat slit, that victim was pulled from

vehicle by his genitals and stabbed in the throat a

second time, that he would have lived 20 to 30

minutes after the wound was inflicted, that defendant

then cut the victim's spine with a knife, and that victim |

would have lived three to five minutes after the spinal

cord was severed. West's F.S.A. § 921.141(5\h, i).

{9} HOMICIDE @=311

203k311

Jury was adequately instructed that it could consider

any relevant evidence in determining whether to

impose the death penalty where court informed the

jurors that they could consider, in addition to other

factors, “any other factor of defendant's character or

record and any other circumstance of the crime or

offense.” and defense counsel discussed mental health

mitigation in detail.

[10] HOMICIDE @=341

203k341

Error in failing to give defendant's requested

instruction containing an expanded definition of the

aggravating factor that the homicide was heinous,

atrocious, and cruel was harmless where defendants’

killing of victim was especially heinous, atrocious, and

cruel by any standard.

[11] JURY G90

230k90

Court was not required to strike for cause at

resentencing hearing in capital murder prosecution

juror who indicated bias against persons who have had

numerous appeals, person who went to junior high

school with defendant and “had a couple of fights”

with him. and person who was allegedly predisposed

to imposing death penalty for all premeditated

murders.

j11) JURY @—105(1)

230k 105¢1)

Court was not required to strike for cause at

Page 25

resentencing hearing in capital murder prosecution

juror who indicated bias against persons who have had

numerous appeals, person who went to junior high

school with defendant and “had a couple of fights”

with him, and person who was allegedly predisposed

to imposing death penalty for all premeditated

murders.

[11] JURY C108

230k108

Court was not required to strike for cause at

resentencing hearing in capital murder prosecution

juror who indicated bias against persons who have had

numerous appeals, person who went to junior high

school with defendant and “had a couple of fights”

with him, and person who was allegedly predisposed

to imposing death penalty for all premeditated

murders.

{12} JURY @—108

230k 108

Court properly excused venire member who stated on

voir dire before resentencing hearing in capital murder

prosecution that she did not believe that she could vote

to impose the death penalty in any situation other than

murder within a prison setting.

[13] HOMICIDE @=358(1)

203k358(1)

In the absence of evidence that state's attorney acted

with purposeful discrimination in seeking death

penalty in defendant's case, court was not required to

hold evidentiary hearing on claim that use of the death

penalty in the county was racially discriminatory,

based on statistical evidence indicating that persons

whose victims were white were more likely to be

charged with first-degree murder and convicted of

first-degree murder.

[14] HOMICIDE @=358(3)

203k358(3)

Court's statement in sentencing order imposing death

penalty in murder case that it had considered the

evidence in support of mitigating factors and that the

mitigating circumstances were outweighed by the

aggravating factors did not demonstrate that it had

determined whether the two statutory mental

mitigating circumstances existed or whether any

mitigating circumstances were found to exist or what

weight was given to them, so that the sentencing order

was defective, error was not harmless.

*457 Richard H. Burr and Steven W. Hawkins of

NAACP Legal Defense and Educational Fund, Inc.,

New York City, and Steven L. Seliger, Quincy, for

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(Cite as: 614 So.2d 455, *457)

appellant.

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

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

PER CURIAM.

Charles Kenneth Foster appeals the sentence of death

imposed upon him after resentencing. He also appeals

the denial of his motion for postconviction relief. Our

jurisdiction is based upon article V, section 3(b\1),

Florida Constitution.

Foster was convicted of murder and sentenced to

death in 1975. This Court affirmed the conviction and

death sentence in Foster v. State, 369 So.2d 928, 929

(Fla.), cert. denied, 444 U.S. 885, 100 S.Ct. 178, 62

L.Ed.2d 116 (1979). The following facts are set forth

in that opinion: x

Anita Rogers. 20 years of age, and Gail Evans, 18

years of age, met defendant and the victim, Julian

Lanier, at a bar. They knew defendant, but the

victim was a stranger.

The girls. after a discussion, agreed to go to the

beach or somewhere else to drink and party with the

men. The victim bought whiskey and cigarettes,

after which the four of them left in the victim's

Winnebago camper. The victim was quite

intoxicated and surrendered the driving chore to

Gail. The defendant and the girls had planned for

Gail to have sex with the victim and make some

money. Gail parked the vehicle in a deserted area

and. after some conversation conceming

compensation, the victim and Gail began to disrobe.

Defendant suddenly began hitting the victim and

accusing him of taking advantage of his sister.

Defendant then held a knife to the victim's throat and

cut his neck, causing it to bleed profusely. They

dragged the victim from the trailer into the bushes

where they iaid him face down and covered him with

pine branches and leaves. They could hear the

victim breathing so defendant took a knife and cut

the victim's spine

The girls and defendant then drove off in the

Winnebago and found the victim's wallet underneath

a mattress. The defendant and the girls split the

mone, *458 found in the wallet and left the vehicle

parked in the parking lot of a motel

The next moming Anita Rogers went to the Sheriff's

Department and reported what had happened.

Foster. 369 So.2d at 928-29

The trial coun demed relief on Fosters first

postconviction motion. and this Cour affirmed.

Page 26

Foster v. State, 400 So.2d | (Fla.1981). In addition,

federal courts denied Foster relief on two federal

habeas petitions. Foster v. Dugger, 823 F.2d 402

(11th Cir.1987), cert. denied, 487 U.S. 1241, 108

S.Ct. 2915, 101 L.Ed.2d 946 (1988); Foster v.

Strickland, 707 F.2d 1339 (1ith Cir.1983), cert.

denied, 466 U.S. 993, 104 S.Ct. 2375, 80 L.Ed.2d 847

(1984). In Foster v. State, $18 So.2d 901 (Fla.1987),

cert. denied, 487 U.S. 1240, 108 S.Ct. 2914, 101

L.Ed.2d 945 (1988), we affirmed the denial of Foster's

second postconviction motion, but we granted his

habeas petition and ordered resentencing due to

~ Hitchcock [FN 1] error.

FN1. Hitchcock v. Dugger, 481 US. 393, 107 S.Ct.

1821, 9$ L.Ed.2d 347 (1987)

On remand for resentencing, Foster filed a 3.850

motion. The trial court refused to continue the

resentencing hearing until resolution of the 3.850

motion. Following the jury's 8-4 recommendation, the

trial judge imposed the death penalty. [FN2]

Thereafter, the court summarily denied the 3.850

motion without an evidentiary hearing.

FN2. The trial court found three aggravating

circumstances: (1) the murder was committed during

the course of a robbery, (2) the murder was cold,

calculated, and premeditated; and (3) the murder was

especially heinous, atrocious, or cruel. Foster offered

thirteen mitigating circumstances. The tral court

found that the mitigation did not outweigh the

aggravating circumstances

We address first Foster's claim that the trial coun

erred in denying his 3.850 motion without an

evidentiary hearing. Foster's motion alleged a

violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct.

1194, 10 LEd2d 215 (1963), and ineffective

assistance of trial counsel. The Brady claim centers

around Foster's allegation that the state failed to

disclose that it offered Gail Evans and Anita Rogers

deals in exchange for their testimony at trial.

Although the court did not hold an evidentiary hearing

on this claim. Foster presented the evidence on which

he relies to support the claim at a hearing on his

motion to preclude admission of Rogers’ and Evans’

1975 trial testimony. Rogers’ ex-husband testified that

several years after the trial, Rogers told him that the

state had promised not to prosecute her in return for

her testumony.

In his claim of ineffective assistance of counsel,

Foster asserts that trial counse! failed to discover that

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Rogers and Evans believed that Foster was “crazy” at

the time of the attack. Had counsel been aware of this,

Foster reasons, he would have pursued mental health

defenses that would have precluded a finding of

premeditated murder. He also alleges that counsel

failed to discover, or alternatively the state failed to

disclose, that Foster cut off the victim's penis during

the course of the attack.

[1] This is Foster's third postconviction motion. A

successive motion may be dismissed if it fails to allege

new or different grounds for relief and the prior

determination was on the merits or, if new and

different grounds are alleged, the failure to raise those

issues in a prior motion constitutes an abuse of

process. Fla.R.Crim.P. 3.850. To overcome this bar,

a movant must allege that the grounds asserted were

not known and could not have been known to him at

the time of the earlier motion. Christopher v. State,

489 So.2d 22, 24 (Fla.1986). The movant must show

justification for the failure to raise the issues in the

prior motions. Id. -

(2] Foster alleged ineffective assistance of trial

counsel in his initial postconviction motion. We

rejected that claim on the merits. [FN3] Foster, 400

So.2d 1. Foster has *459 not previously raised a

Brady claim. Although he alleges the discovery of new

facts in order to avoid application of the abuse of

process doctrine, he has failed to demonstrate or even

allege that the facts could not have been known to him

at the time of his earlier motions. We note that Foster

has been represented by the same counsel since at least

the time of the appeal of the denial of his first

postconviction motion in 1981. Having failed to show

any justification for his failure to raise the present

claims in his earlier postconviction motions, the

instant motion constitutes an abuse of process.

Spaziano v. State, 545 So.2d 843 (Fla.1989); Tafero

v. State, 524 So.2d 987, 988 (Fla.1987); Booker v.

State, 503 So.2d 888. 889 (Fla.1987); Christopher v.

State, 489 So.2d at 25. [FN4]

FN3. In addition, we note that Foster raised ineffective

assistance of counsel claims in his two federal habeas

petitions. The claims were denied after evidentiary

hearing and the denials were affirmed on appeal.

Foster v Dugger. 823 F.2d 402 (1 Ith Cir.1987), cer.

denied, 487 U.S. 1241, 108 S.Ct. 2915, 101 L.Ed.2d

946 (1988), Foster v. Strickland, 707 F.2d 1339 (11th

Cir. 1983), cert. demied, 466 U S. 993, 104 S.Ct. 2375,

80 L.Ed 2d 847 (1984)

FN4 In addition. we note that the motion was filed

Page 27

outside of the limitations period established by rule

3.850. The motion fails to allege that the facts upon

which his claims are based “could not have been

ascertained by the exercise of due diligence.”

Fla. R.Crim.P. 3.850.

[3] Even if-there were no procedural bar, Foster's

claim would not prevail. At trial, Foster made a

witness stand confession in which he stated:

I reckon I'll just cop out. | have done it, killed him

deader than hell. I ain't going to set up here, | am

under oath and | ain't going to tell no fucking lies. |

will ask the Court to excuse my language. I am the

one that done it. They didn't have a damn thing to do

with it. It was premeditated and | intended to kill

him. I would have killed him if he hadn't had no

,money and I know I never told you about it, but |

killed him.

369 So.2d at 929. In light of Foster's confession,

_ there is no reasonable probability that the outcome of

the trial would have been different had any of the

evidence Foster now asserts was not disclosed or not

discovered been presented. Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

(one alleging ineffective assistance of counsel must

show deficient performance and prejudice); Hegwood

v. State, 575 So.2d 170, 172 (Fia.1991) (to establish

Brady violation, one must prove that had the evidence

been disclosed, a reasonable probability exists that the

outcome of the proceedings would have been

different).

[4] Gail Evans personally testified at the resentencing

hearing. However, over Foster's objection, the court

allowed the state to introduce the testimony of Anita

Rogers from the 1975 trial. Foster claims that the

court failed to conduct an appropriate inquiry into

Rogers’ unavailability before admitting her prior trial

testimony and that the use of her testimony abridged

his right of confrontation.

We find no error in the trial court's determination that

Rogers was unavailable. According to the assistant

state attorney, in 1989, in an effort to find Rogers,

investigators from that office attempted to locate her

ex- husband. They were unsuccessful. In late May of

1990, shortly before the resentencing proceeding,

defense counsel gave the state attorney Rogers’

address and telephone number in Tampa. The state

attomey called the number several times. He left

messages On an answering machine as well as with a

man who answered the telephone and said that he was

Rogers’ former brother-in-law. Rogers never returned

the phone calls. At the state attorney's request, the

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Hillsborough County Sheriff's Department attempted

to subpoena Rogers but were unsuccessful. A deputy

attempting to serve the subpoena was advised by

someone at Rogers’ address that she was out of town at

an unknown location. This was sufficient to establish .

Rogers’ unavailability for purposes of the resentencing

hearing.

{S}] Further, Foster's right of confrontation was not

abridged. The court admitted Rogers’ cross-

examination in addition to her direct testimony. The

court also allowed Foster to rebut Rogers’ testimony

with other witnesses. Under these facts we find no

error in the admission of Rogers’ trial testimony. See

Hitchcock v. State, 578 So.2d 685, 690 (Fla.1990)

(upholding the admission in resentencing proceeding

*460 of trial transcript where the state was unable to

locate the witness and the court admitted the witness's

entire trial testimony, including cross examination),

cert. denied, 502 U.S. 912, 112 S.Ct. 311, 116

L.Ed.2d 254 (1991).

[6] At resentencing, Foster sought to impeach Rogers’

trial testimony by introducing evidence that she had

been convicted of false reporting of a crime and grand

larceny in 1989. The trial court excluded evidence of

the convictions, apparently finding that the 1989

convictions were not probative of Rogers’ truth and

veracity at the time of the 1975 testimony. We find no

abuse of discretion in the exclusion of this evidence.

Teffeteller ¥. State. 495 So.2d 744, 745 (Fia.1986).

("[I}t is within the sound discretion of the trial court

during resentencing proceedings to allow the jury to

hear or see probative evidence which will aid it in

understanding the facts of the case in order that it may

render an appropriate advisory sentence.”).

[7} One day before the resentencing proceeding was

scheduled to begin. Foster filed a motion pursuan: to

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194. asking

the court to require the state to disclose Rogers’ and

Evans’ mental health records. The state attorney

objected. indicating the state did not have the records

and had no better access to the records than did

detense counsel. Foster challenges the trial court's

denial of his motion.

Foster has not shown a Brady violation. The state

denied having the records. Further, Foster made no

showing that he could not have obtained this evidence

with reasonable diligence. See Hegwood v State, $75

So.2d 170. 172 Foster cites no case for his

Proposition that « was the state's obligation. rather

than his own, to obtain such records

Page 28

[8] Foster also claims that the trial court erred in

finding the murder to be especially heinous, atrocious,

or cruel [FNS] and cold, calculated and premeditated.

[FN6] The court relied on the following evidence to

find the aggravating factor of especially heinous,

atrocious, or cruel:

FNS. § 921.141(5\h), Fla. Stat. (1989).

FN6. § 921.141(5i), Fla. Stat. (1989).

The circumstances of the killing indicate a

consciousless and pitiless regard for the victim's life

and was unnecessarily tortuous to the victim, Julian

Franklin Lanier. The victim did not die an

instantaneous type of death. The victim was severely

beaten prior to death. His nose was fractured, his

face was severely bruised and his eyes were swollen

shut from edema from hemorrhage and swelling

resulting from the beating. After beating the victim,

the defendant took out a knife and told the victim

“I'm going to kill you; I'm going to kill you." There

is evidence that one of the girls present asked the

defendant not to do it. The defendant then

proceeded to stab the victim in the throat. There is

evidence of a defensive wound to the victim's hand

which indicates the victim attempted to fend off the

knife as the defendant stabbed him in the throat.

After stabbing the victim in the throat, the defendant

grabbed the victim by his testicles, or genitals, in

order to move the victim outside. The victim

groaned or moaned and the defendant stabbed the

victim in the throat a second time. This second

wound cut the victim's internal and external jugular

veins. The victim could have lived from 20 to 30

minutes after this wound was inflicted.

Neither of these wounds to the neck severed the

victim's vocal cords. There is evidence that the

victim asked the defendant not to do it again before

he was stabbed a second time.

After the second stab wound. the victim was dragged

into the woods where he was covered with bushes.

The marks on the victim's body indicated to the

medical examiner, that the victim was either alive or

dead a very short time before he was being dragged.

It is Consistent with what happened next to assume

the victim was alive.

After the victim was covered in the woods, one of

the girls accompanying the *461 defendant reported

to the defendant that she could hear the victim

breathing. The defendant then went back to the

victim, who was lying face down, uncovered him and

cut the victim's spine with a knife. As described by

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one witness, there was no air coming from the body

of the victim after she heard “the cracking” of the

spine. The medical examiner indicated the victim

could have lived 3 to 5 minutes after his spinal cord

was severed.

This evidence establishes that the murder was

especially heinous, atrocious, or cruel.

The trial court relied on these same facts to find the

murder to be cold, calculated, and premeditated. In

addition, the court relied on Foster's witness stand

confession and Anita Rogers’ trial testimony. Rogers

testified that prior to the attack, Foster asked her to

exchange class rings with him. Foster's ring bore the

initial "K." He told Rogers that he wanted to switch

rings because his ring would have left "K" impressions

on the victim, thus identifying him as the perpetrator.

As the prosecutor argued to the jury, if Foster had not

intended to kill the victim, it would have made no

difference if there were "K" impressions on the victim

because he would have been alive to identify Foster.

These facts establish the existence of a careful plan or

prearranged design to kill. [FN7] Rogers v. State, 511

So.2d 526, 533 (Fla.1987), cert. demied, 484 U.S.

1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988)

FN7. Foster also contends that the application of the

cold, calculated, and premeditated aggravating factor

to his crime violates the Ex Post Facto Clause because

the factor did not exist at the time of this crime. We

have repeatedly rejected this claim. See Sireci v.

State, $87 So.2d 450, 454 (Fla.1991), cert. denied, 503

U.S. 946, 112 S.Ct. 1800, 117 L.Ed.2d 639 (1992),

Zeigler v. State, $80 So.2d 127 (Fla.), cert. denied,

$02 U.S. 946, 112 S.Ct. 390, 116 L.Ed.2d 340 (1991),

Combs v. State, 403 So.2d 418, 421 (Fla.1981), cer.

denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862

(Fla. 1982).

[9] Next, Foster claims that the jury charge and the

prosecutor's closing argument limited the jury's

consideration of mitigating evidence in violation of

Cheshire v. State, 568 So.2d 908 (Fla. 1990) (state may

Not restrict consideration of mitigating circumstances

solely to “extreme” emotional disturbances; any

emotional! disturbance relevant to the crime must be

considered). The court gave the following special

instruction:

Among the mitigating circumstances which you may

consider are the following. First, the crime for which

the defendant is to be sentenced was committed

while he was under the influence of extreme mental

or emotional disturbance.

Second. that the capacity of the defendant to

appreciate the criminality of his conduct or to

Page 29

conform his conduct to the requirements of law was

substantially impaired.

Third, that the defendant had an abusive family

background.

Fourth, the defendant's poverty.

Fifth, the physical illness of the defendant.

Sixth, the defendant's love for and love by his family.

Seventh, any alcohol or drug addiction of the

defendant.

Eighth, a troubled personal life including depression

and frustration.

Ninth, physical injuries suffered by the defendant.

Tenth, the defendant's lack of childhood

development.

Eleventh, the effect of death of loved ones on the

defendant.

Twelfth, the learning disability suffered by the

defendant.

Thirteenth, the defendant's potential for positive

sustained human relationships.

Fourteenth, any other aspect of the defendant's

character or record and any other circumstance of the

crime or offense.

Foster argues that this instruction created a substantial

risk that the jury believed that they could only find the

- mental health evidence to be mitigating if it rose to the

statutory level. In addition to being given the quoted

instruction, the jury was informed that it must consider

any aspect of *462 the defendant's character and

background or any other circumstance presented in

mitigation and that there was no limitation on the

mitigating factors which could be considered.

Viewing the instructions as a whole, we find no

reasonable likelihood that the jurors understood the

instruction to preclude them from considering any

relevant evidence. Robinson v. State, 574 So.2d 108,

111 (Fla.), cert. denied, 502 U.S. 841, 112 S.Ct. 131,

116 L.Ed.2d 99 (1991). Further, in closing argument,

defense counsel discussed the mental health mitigation

in detail. He argued that the evidence rose to the

statutory level but nevertheless argued that Foster was

clearly under an emotional disturbance even if it did

not meet the level required by statute. Accordingly, we

reject this claim.

Next, Foster asserts that the court erred in refusing to

_ give certain jury = instructions. The rejected

instructions deal with the following subjects: (1) the

determination of the aggravating factor of especially,

heinous, atrocious, or cruel; (2) the determination of

the aggravating factor of cold, calculated. and

premeditated; and (3) the jury's pardon power. He

also alleges that the jury instructions on these two

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(Cite as: 614 So.2d 455, *462)

aggravating circumstances were inadequate.

[10] The instruction given on heinous. atrocious, and

crue! was the same as the one held to be inadequate in

Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112

L.Ed.2d | (1990). Therefore, the court erred in failing

to give Foster's requested instruction which contained

an expanded definition of that aggravating factor We

conclude, however, that the error was harmless. As

may be seen from that portion of the trial judge's order

previously quoted, Foster's killing of Julian Lanier was

especially heinous, atrocious, and crue! by any

standard. The jury could not have been misled by the

inadequate instruction. We further hold that the court

did not abuse its discretion in refusing to give the

other jury instructions which Foster had requested.

{11] Next, Foster asserts that the court erred in failing

to strike three venire members for cause. He argues

that: (1) Carol Ann Pope should have been excused

because she indicated bias against persons who have

had numerous appeals; (2) Thomas Martun should

have been excused because he went to junior high

schoo! with Foster and the two of them “had a couple

of fights": (3) Marion Pelland should have been

excused because she was predisposed toward imposing

the death penalty for all premeditated murders. Foster

exercised peremptory challenges to excuse these three

jurors

“The test for determining juror competency is whether

the juror can lay aside any bias or prejudice and render

his verdict solely upon the evidence presented and the

instructions on the law given to him by the cour.”

Lusk v. State, 446 So.2d 10358. 1041 (Fila.), cen.

demed. 469 U.S. 873. 105 S.Ct. 229, 85 L.Ed.2d 158

(1984) The record does not suppor Foster's

allegations regarding these potential jurors. We have

reviewed the transcript of jury selection and do not

find any basis for excusing these jurors for cause

Next. Foster claims that the trial cour improperly

excused venire member Deluzain for cause in violation

of the principles established in Witherspoon v_ IIlinous,

391 U.S. $10. 88 S.Ct. 1770, 20 L-Ed.2d 776 (1968),

and Wainwright v. Win, 469 LS 412. 105 S.Cr 844.

83 L.Ed.od 841 (1985)

[12] A juror may be excluded in a death case if his

views on capital punishment “would prevent or

substantiall, impair the performance of his duties as a

juror in accordance with his instructions and his oath.”

Adams \. Texas. 448 U.S 38. 45. 100 SCr 2S2).

>S26. of LEag.2d $81 (1980). The record evinces

Page 30

Deluzain's inability to set aside her own beliefs in

deference to the law. Randolph v. State, 562 So.2d

331, 337 (Fla.), cert. denied, 498 U.S. 992, 111 S.Ct.

$38, 112 L.Ed.2d 548 (1990). She said that she did

not believe that she could vote to impose the death

penalty in any situation other than a murder within a

prison setting. When asked whether she could set

aside her feelings against the death penalty if the

murder were sufficiently aggravated, she responded

that she was not sure that *463 she could. The trial

court did not abuse its discretion in excusing her for

cause.

[13] Further, Foster challenges the circuit court's

refusal to allow him to show that the use of the death

penalty in Bay County, Florida, is racially

discriminatory. Foster moved to preclude the state

attorney's office from seeking the death penalty in his

case based on his assertion that the Bay County State

Attorney's Office pursued prosecution much more

vigorously and fully in cases involving white victims

than in cases involving black victims.

In support of his claim, Foster proffered a study

conducted by his counsel of some of the murder

homicide cases prosecuted by the Bay County State

Attomey's Office from 1975 to 1987. Analyzing the

raw numbers collected, Foster concluded that

defendants whose victims were white were 4 times

more likely to be charged with first-degree murder

than defendants whose victims were black. Of those

defendants charged with first-degree murde:, white-

victim defendants were 6 times more likely to go to

trial. Of those defendants who went to trial, white-

victim defendants were 26 times more likely to be

convicted of first-degree murder. The court refused to

hold an evidentiary hearing, finding that the alleged

facts did not make out a prima facie claim of

discrimination.

The United States Supreme Court rejected a similar

challenge in McCleskey v. Kemp, 48! U.S. 279, 107

S.Ct. 1756, 9S L.Ed.2d 262 (1987). McCleskey

claimed that the imposition of Georgia's death penalty

was racially discriminatory in violation of the Eighth

and Fourteenth Amendments. He relied on a statistical

study, the Baldus study, which purported to show a

disparity in the imposition of Georgia's death penalty

based on the race of the victim and the race of the

defendant. The raw figures collected by Professor

Baidus indicated that defendants charged with killing

white victims received the death penalty in | 1% of the

cases, but defendants charged with killing blacks

received the death penal in only !% of the cases

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Baldus further found that the death penalty was

assessed in 22% of the cases involving black

defendants and white victims; 8% of the cases

involving white defendants and white victims, and 3%

of cases involving white defendants and black victims.

The figures indicated that prosecutors sought the death

penalty in 70% of the cases involving black defendants

and white victims; 32% of the cases involving white

defendants and white victims; 15% of the cases

involving black defendants and black victims; and

19% of the cases involving white defendants and black

victims.

After accounting for numerous variables that could

have explained the disparities on other than racial

grounds, the Baldus study found that defendants

charged with killing white victims were 4.3 times as

likely to receive a death sentence as defendants

charged with killing black victims. Black defendants

were |.| times as likely to receive a death sentence as

other defendants. As a black defendant who killed a

white victim, McCleskey argued that the Baldus study

demonstrated that he was discriminated against

because of his race and the race of his victim.

The Court held that McCleskey “must prove that the

decisionmakers in his case acted with discriminatory

purpose.” McCleskey, 481 U.S. at 292, 107 S.Ct. at

1767. The Court rejected McCleskey's claim because

he offered no evidence specific to his own case to

support an inference that racial considerations played a

part in his sentence. The Court found the Baldus study

to be insufficient to support an inference that the

decisionmakers in McCleskey's case acted with

purposeful discrimination.

Foster's claim suffers from the same defect. He has

offered nothing to suggest that the state attorney's

office acted with purposeful discrimination in seeking

the death penalty in his case. See Harris v. Pulley, 885

F.2d 1354, 1375 (9th Cir.1988), cert. denied, 493 U.S.

1051, 110 S.Ct. 854, 107 L.Ed.2d 848 (1990); Byrd

v. Armontrout, 880 F.2d 1, 10 (8th Cir.1989), cert.

denied, 494 U.S. 1019. 110 S.Ct. 1326, 108 L.Ed.2d

501 (1990); Kelly v. Lynaugh, 862 F.2d 1126, 1135

(Sth Cir.1988), cert. denied, 492 U.S. 925, 109 S.Ct.

3263. 106 L.Ed.2d *464 608 (1989). The trial court

was not required to hold an evidentiary hearing on this

claim. Harris, 885 F.2d at 1375 (defendam not

entitled to evidentiary hearing where he offered no

proof that decisionmakers in his case acted with

discriminatory purpose).

Foster argues that McCleskey does not foreclose his

Page 31

challenge because his evidence focuses solely on the

practices of one prosecutor's office, whéreas the

Baldus study consisted of generalized statistics

covering every aspect of Georgia's death penalty

scheme. The McCleskey Court questioned whether a

state “policy” of discrimination could be deduced by

studying the combined effects of hundreds of

decisionmakers.

The Court in McCleskey held that:

[T]he policy considerations behind a prosecutor's

traditionally “wide discretion” suggest the

impropriety of our requiring prosecutors to defend

their decisions to seek death penalties “often years

after they were made.” Moreover, absent far stronger

proof, it is unnecessary to seek such a rebuttal,

because a legitimate and unchallenged explanation

for the decision is apparent from the record:

McCleskey committed an act for which the United

States Constitution and Georgia laws permit

imposition of the death penalty.

Implementation of these laws necessarily

requires discretionary judgments. Because

discretion is essential to the criminal justice process,

we would demand exceptionally clear proof before

we would infer that the discretion has been abused.

McCleskey, 481 U.S. at 296-97, 107 S.Ct. at 1769-70

(citations omitted).

The figures proffered by Foster do not constitute

“exceptionally clear proof” of discrimination. See

Harris v. Pulley, 885 F.2d at 1375. Foster's figures do

not account for any of the myriad of nonracial

variables that could explain the disparity. See

McCleskey, 481 U.S. at 295, n. 15, 107 S.Ct. at 1769,

n. 15 (“decisions whether to prosecute and what to

charge necessarily are individualized and involve

infinite factual variations...."). Even assuming the

validity of Foster's study, [FN8] the raw numbers

analyzed by Foster do not show a significantly greater

disparity than figures proffered by the Baldus study

which had taken into account numerous nonracial

variables. [FN9]

FN8. The weight to be given to the results of such a

smal! statistical sample as this 1s questionable. See

McCleskey, 481 U.S. at 295. n. 15. 107 S.Ct. at 1768,

n. 15.

FN9. The figures indicating that of the defendants who

went to trial, white-victum defendants were 26 times

more likely to be convicted of first- degree murder

than were black-victum defendants cannot be attributed

to a decision by the Bay Count, State Attorney's

Copr. © West 1999 No Claim to Orig. U.S. Govt. Works -

614 So.2d 455

(Cite as: 614 So.2d 455, *464)

Office and thus are not relevant here.

[14] Finally, Foster claims that the trial court's

sentencing order fails to evaluate the proposed

mitigating factors as required by Rogers v. State, 511

So.2d 526 (Fla.1987), cert. denied, 484 U.S. 1020.

108 S.Ct. 733, 98 L.Ed.2d 681 (1988). In discussing

the manner in which the trial court should consider

mitigating circumstances in a case in which the state

seeks the death penalty, we said:

{T}he trial court's first task in reaching its

conclusions is to consider whether the facts alleged

in mitigation are supported by the evidence. After

the factual finding has been made, the court then

must determine whether the established facts are of a

kind capable of mitigating the defendant's

punishment, i.¢e., factors that, in faimess or in the

totality of the defendant's life or character may be

considered as extenuating or reducing the degree of

moral culpability for the crime committed. If such

factors exist in the record at the time of sentencing,

the sentencer must determine whether they are of

sufficient weight to counterbalance the aggravating

factors.

Id. at $34.

In addressing mitigation in the sentencing order, the

trial court first listed thirteen mitigating factors that

Foster had offered for consideration. The court then

stated:

*465 The Court must note that there is a conflict in

evidence on the questions of whether the capital

felony was committed while the defendant was under

the influence of extreme mental or emotional

disturbance and the capacity of the defendant to

appreciate the criminality of his conduct to the

requirements of law was substantially impaired

(emphasis supplied).

After discussing the conflict in the evidence, the court

then concluded:

The Court will therefore consider this conflict in the

weight to be given these two factors in relating to the

aggravating circumstances.

The Court has considered the evidence presented in

support of each of these mitigating factors and, in

weighing these factors against the aggravating

factors. finds that the aggravating circumstances

outweigh the mitigating circumstances in this case.

While it is evident that the court considered the

mitigating circumstances. we cannot tell whether the

court determined whether either of the two statutory

mental mitigating circumstances existed. In fact, we

are unable to say whether the court found any of the

Page 32

mitigating circumstances to exist or what weight was

given to them. Unlike Rogers, we cannot say that this

defect in the sentencing order was harmless error.

{FN10]

FN10. In view of our disposition of this issue, we do

not address Foster's argument with respect to

proportionality.

Accordingly, we vacate the sentence of death and

remand the case for the trial judge to enter a new

sentencing order following the dictates of Rogers and

Campbell v. State, 571 So.2d 415 (Fla.1990). [FN11]

See Lucas v. State, 568 So.2d 18 (Fla.1990). We

affirm the denial of Foster's motion for postconviction

relief.

FNI1. While Campbell did not become final until after

the original sentencing order was entered, its

additional requirements will obviously be applicable

to any new sentencing order.

It is so ordered.

OVERTON, McDONALD, GRIMES and

HARDING, JJ., concur.

BARKETT, C.J.. concurs in part and dissents in part

with an opinion, in which SHAW and KOGAN, JJ.,

concur.

KOGAN, J., concurs in part and dissents in part with

an opinion.

BARKETT, Chief Justice, concurring in par,

dissenting in part.

I concur in the majority's resolution of all the issues

except for Foster's claim regarding the discriminatory

use of the death penalty in Bay County, Florida.

The majority concludes that Foster “has offered

nothing to suggest that the state attorney's office acted

with purposeful discrimination in seeking the death

penalty in his case." Majority op. at 463. My

disagreement is not so much with that statement as

with a standard that requires showing something that is

virtually impossible to show: purposeful

discrimination. McCieskey v. Kemp, 481 U.S. 279,

107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).

In McCleskey, the U.S. Supreme Court dismissed

McCleskey's analogous federal equal protection

claims, holding that a defendant must establish both

Copr. © West 1999 No Claim to Orig. U.S. Govt. Works

614 So.2d 455

(Cite as: 614 So.2d 455, *465)

“the existence of purposeful discrimination” and a

“discriminatory effect" on that particular defendant

Id. at 292, 107 S.Ct. at 1767. | agree that under the

federal precedent McCleskey would control this case.

Foster, however, claims a violation of the Equal

Protection Clause of the Florida Constitution. Art. I, §

2, Fla.Const. Despite the principles adopted in

Traylor v. State, 596 So2d 957 (Fla.1992),

establishing the primacy of the Florida Constitution,

the majority completely ignores Foster's state

constitutional challenge. | believe that Foster's claim

deserves full consideration.

Despite earlier transgressions, [FN12] Florida in

recent years has clearly established its *466

commitment to equality of treatment in the courts. See,

e.g. Report and Recommendations of the Florida

Supreme Court Racial and Ethnic Bias Study

Commission (1990 & 1991); The Florida Supreme

Court Gender Bias Study Commission Final Report

(1990). Indeed, while the U.S. Supreme Court was

still requiring a defendant to meet the impossible

burden of proving that discriminatory jury selection

practices were employed systematically in a number of

similar cases or contexts, Swain v. Alabama, 380 U.S.

202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), this Court

took the lead in State v. Neil, 457 So.2d 48!

(Fla.1984), clarified by State v. Castillo, 486 So.2d

565 (1986), and established guidelines under the

Florida Constitution to guard against the racially

discriminatory use of peremptory challenges. [FN13]

The U.S. Supreme Court followed suit two years later

in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,

90 L.Ed.2d 69 (1986), when it overruled the Swain

standard and acknowledged that it imposed a

“crippling burden of proof® that rendered a

prosecutor's peremptory challenges largely immune

from constitutional scrutiny. Id. at 92-93, 106 S.Ct. at

1720-21. The Court found that a prosecutor's use of

peremptory challenges is subject to the constraints of

the Equal Protection Clause when there is some basis

for believing that the challenges are used in a racially

discriminatory manner. [FN14]

FN12. See, e.g. State ex rel. Hawkins v. Board of

Control, 93 So.2d 354 (Fla), cert. denied. 355 U.S.

839, 78 S.Ct. 20, 2 L.Ed.2d 49 (1957). State ex rel.

Hawkins v. Board of Control, 83 So.2d 20 (Fla. 1955),

cert. denied, 350 US 413, 76 S.Ct. 464, 100 L Ed

486 (1956).

FN13. See also State v Slappy, $22 So.2d 18 (Fia.),

cer. denied, 487 US. 1219, 108 S.Ct. 2873, 101

Page 33

L.Ed.2d 908 (1988) (holding that any doubt as to

whether the complaining party has met its initial

burden should be resolved in that party's favor)

FN14. The U.S. Supreme Court recently held that the

Equal Protection Clause also prohibits a criminal

defendant from engaging in purposeful discrimination

on the basis of race in the exercise of ’

challenges. Georgia v. McCollum, $05 U.S. 42, 112

S.Ct. 2348, 120 L.Ed.2d 33 (1992). This Court heid

in Neil that both the State and the defense may

challenge the allegedly improper use of peremptories

457 So.2d at 487.

The U.S. Supreme Court in Batson recognized the

invidious nature of discrimination. Id. at 93-96, 106

S.Ct. at 1721-23. Justice Marshall, in a concurring

opinion, noted that discrimination is not often blatantly

expressed, and in many cases it is subliminal:

A prosecutor's own conscious or unconscious racism

may lead him easily to the conclusion that a

prospective black juror is ‘sullen,’ or ‘distant,’ a

characterization that would not have come to his

mind if a white juror had acted identically. A judge's

Own Conscious Or uNcONscious racism may lead him

to accept such an explanation as well supported.

Id. at 106, 106 S.Ct. at 1728 (Marshall, J.,

concurring). Studies of unconscious racism have

shown that the perpetrator does not feel particularly

punitive toward minorities, rather, he or she wants to

remain distant and is less likely to feel empathy

because of the distance. Sheri Lynn Johnson,

Comment, Unconscious Racism and the Crimina! Law,

73 Cornell L.Rev. 1016, 1920 n. 27 (1988). While

society has largely rejected blatant stereotypes and

overt discrimination, more subtle forms of racism are

increasing: “A burgeoning literature documents the

rise of the ‘aversive’ racist, a person whose ambivalent

racial attitudes leads him or her to deny his or her

prejudice and express it indirectly, covertly, and often

unconsciously.” Id. at 1027- 28 (footnotes omitted).

Discrimination, whether conscious or unconscious,

cannot be permitted in Florida courts. As important as

it is to ensure a jury selection process free from racial

discrimination, it 1s infinitely more important to ensure

that the State is not imposing the ultimate penalty of

death in a racially discriminatory manner. The U.S.

Supreme Court may eventually recognize that the

burden imposed by McCleskey 1s as insurmountable as

that presented by Swain. In the meantime, defendants

such as Foster have no chance of proving that

application of the death penalty in a particular

jurisdiction 1s racially discriminatory, no matter how

convincing their evidence [FN 15]

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614 So.2d 455

(Cite as: 614 So.2d 455, *466)

FNIS In this case. Foster presented statistical

evidence showing that even though blacks constituted

40% of the murder victims in Bay County cases

between 1975 and 1987, all 17 death sentences that

were imposed were for homicides involving white

vicums. Additionally, the study produced by Foster

concluded that defendants whose victims were white

were four times more likely to be charged with first-

degree murder than defendants whose victims were

black Of those defendants charged with first-degree

murder. white-victim defendants were six times more

likely to go to tral, and of those defendants who went

to tral, white-victum defendants were 26 more times

likely to be convicted of first-degree murder Other

Studies also Suggest that discrimination may be

resulting in harsher penalties tor those who kill whites.

see. ¢g. Bob Levenson & Debbie Salamone,

Prosecutors See Death Penalty in Black and White,

The Orlando Sentune!, May 24, 1992, at Al (analyzing

283 first-degree murder cases prosecuted from Jan. |,

1980, through Sept. 30, 1991, in Orange. Osceola,

Seminole, Brevard. Lake, and Volusia counties, and

finding that prosecutors sought the death penalty 27%

of the ume when white vicums were involved and only

14% of the tume when munority victims were

involved)

*467 Assuming, for the sake of argument, that

unconscious discrimination exists, how can it be

proven” As the U.S. Supreme Cour recognized in

Village of Arlington Heights v Metropolitan Housing

Development Corp., 429 U.S 252, 266, 97 S.Ct. 555,

$64, 50 L.Ed.2d 450 (1977), "[s]ometimes a clear

pattern, unexplainable on grounds other than race,

emerges from the effect of the state action even when

the governing legislation appears neutral! on its face.”

In cases involving jury pools, for example, the U.S.

Supreme Court has recognized that a strict application

of the purposeful discrimination standard generally

required under the Equal Protection Clause is

inequitable. See Washington v. Davis, 426 U.S. 229,

242, 96 S.Ct. 2040, 2048, 48 L.Ed2d 597 (1976)

(explaining the standard applicable to jury cases);

Castaneda v. Partida, 430 U.S. 482, 493-96, 97 S.Ct.

1272, 1279-81, 51 L.Ed.2d 498 (1977). A prima facie

case of intentional, discrimination can be established

by showing that representation of a minority in the

jury venire falls below the population as a whole or by

demonstrating that criteria are subyective and lead to

exclusion or underinclusion. Once the prima facie

case has been established, the burden then shifts to the

State to rebut that case. Partida, 430 U.S. at 494-97,

97 S.Ct. at 1280-82; see also Alexander v. Louisiana,

405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d $36 (1972),

Turmer v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24

L.Ed2d 567 (1970). This standard amounts to

Page 34

something considerably less than purposeful and

deliberate discrimination, indeed, the Court in these

cases has expressed a willingness to consider

discriminatory impact. as evidenced by statistics, that

cannot be traced to blatant or overt diScrimination.

I believe that statistical evidence of discrimination in

Capital sentencing decisions should similarly establish

a violation of article |, section 2 of the Florida

Constitution. “Statistical” evidence should be

construed broadly to include not only historical

analysis of the disposition of first-degree murder cases

in a particular jurisdiction, but also other information

that could suggest discrimination, such as the

resources devoted to the prosecution of cases

involving white victims as contrasted to those

involving minority victims, and the general conduct of

a State attorney's office, including hiring practices and

the use of racial epithets and jokes. When racial bias,

whether conscious of unconscious, exists in an

environment where decisions about seeking the death

penalty are made, all aspects of that bias should be

available for evaluation by a court in reviewing

evidence of discrimination.

In crafting a standard for proving racial

discrimination in death penalty decisionmaking under

the Florida Constitution, it is appropriate to borrow

from the Neil and Slappy peremptory challenge line of

cases, which gives the trial court discretion to

determine whether a prima facie case has been

established. See, e.g., Neil; Slappy; Wright v. State,

$86 So.2d 1024, 1027-28 (Fla.1991), Reed v. State,

$60 So.2d 203, 206 (Fla.), cert. denied, 498 U.S. 882,

111 S.Ct. 230, 112 L.Ed.2d 184 (1990). As in the

area of peremptory challenges, a bright line test for

determining whether racial discrimination in the

decision to seek the death penalty has occurred would

be counterproductive. See Slappy, 522 So.2d at

21-22. Racial discrimination in the capital sentencing

process should be evaluated as a whole, and it is

impossible to anticipate all of the circumstances in

which it might be manifested. The trial court is in the

best position to evaluate whether a party *468 has

demonstrated sufficient evidence of discrimination to

warrant an inquiry.

1 suggest the following standard: A party asserting

racial discrimination in the State's decision to seek the

death penalty should make a timely objection and

demonstrate on the record that the discrimination

exists and that there is a strong likelihood it has

influenced the State to seek the death penalty Such

discrimination conceivably could be based on the race

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614 So.2d 455

(Cite as: 614 So.2d 455, *468)

of the victim or on the race of the defendant. Once the

met by the defendant, the burden then shifts to the

State to show that the practices in question are not

racially motivated. If the trial court determines that .

the State does not meet that burden, the State then is

prohibited from seeking the death penalty in that case

Accordingly, because the majority has applied a

federal constitutional standard in Foster's case that 1s

impossible to meet and has missed the opportunity to

craft a state constitutional standard such as that

discussed above, | dissent from that portion of the

Page 35

SHAW and KOGAN, JJ., concur.

KOGAN, Justice, concurring in part and dissenting in

part.

I concur in the opinion of Chief Justice Barkett with

the exception that | do not believe the aggravating

factor of cold, calculated premeditation was proved

beyond a reasonable doubt.

END OF DOCUMENT

Copr. © West 1999 No Claim to Orig. U.S. Govt. Works

IN THE CIRCUIT COURT OF THE FOURTEENTH JUDICIAL CIRCUIT

IN AND FOR BAY COUNTY, FLORIDA

STATE OF FLORIDA CASE NO: 75-486-C

CHARGE: FIRST DEGREE MURDER

ROBBERY

vs

CHARLES KENNETH FOSTER.

DEFENDANT

AMENDED MOTION FOR POST CONVICTION RELIEF

FLORIDA RULE OF CRIMINAL PROCEDURE 3.850

1. Name and location of the court that entered the judgment of conviction under attack:

Circuit Court Of the Fourteenth Judicial Circuit, Bay County, Florida.

2. Date of judgment of conviction: August 12, 1993. Florida Supreme Court Affirmed,

June 16, 1995. Original conviction October 4, 1975.

te

. Length of sentence: Death

4. Nature of offenses involved:

1. First Degree Murder

2. Robbery

Le)

. What was your plea? Not Guilty

ee

MAGNITUDE IN SENTENCING MR. FOSTER TO DEATH. IN

VIOLATION OF JOHNSON V_MISSISSIPPL 108 S.CT. 1981

(1988) AND THE FIFTH. SIXTH, EIGHTH AND FOURTEENTH

AMENDMENTS

_ CLAIM XXX

MR. FOSTER’S DEATH SENTENCE IS PREDICATED UPON AN

AUTOMATIC AGGRAVATING CIRCUMSTANCE, CONTRARY

TO THE EIGHTH AND FOURTEENTH AMENDMENTS. TRIAL

COUNSEL RENDERED INEFFECTIVE ASSISTANCE IN THIS

REGARD

(3) Did you receive any evidentiary hearing on your petition, application, motion, etc.”

No

(4) Result: Pending

- 12. Other than a direct appeal from the judgement of conviction and sentence, have

you previously filed any petitions, applications, motions, etc., with respect to this judgement in

any other court? Yes

13. If your answer to number 12 was “Yes” give the following information:

(a)(1) Name of court: U.S. Supreme Court; U.S. Court of Appeals Eleventh Circuit; U.S.

Dirstrict Court.

(2) Nature of the proceeding: Petition for Certiorari; Habeas Corpus & Appeals.

(3) Grounds raised: (See Composite Exhibit A).

(4) Did you receive an evidentiary hearing on your petition, application, motion, etc?

14. Grounds on which Judgment and Sentence is unlawful.

A. GROUND I CONSTITUTIONALLY FLAWED HARMLESS ERROR

ANALYSIS

-10-

The Florida Supreme Court in its 1995 affirmance of Defendant's Death Sentence found

that although the Cold. Calculated. Premeditated was invalid under Jackson v. State. 19 FLW S

215 (Fla. 1994) it was “harmless error.” Defendant submits that the Florida Supreme Court did

not conduct a meaningful or constitutionally correct harmless error analysis. The law clearly

states that the standard for harmless error analysis requires the State to establish “beyond a

reasonable doubt that the invalid CCP instruction did not affect the jury's consideration or that its

recommendation would have been the same if the requested expanded instruction had been

given.”

Defendant subraits that the State's burden of proof cannot be determined by the Florida

Supreme Court without the State going forward with an evidentiary hearing. For the Court to

conclude that a jury's recommendation would have been the same (here. an 8-4 vote for death),

involves a constitutionally flawed reasoning process. There is no way to determine what a jury

relied upon or would have ruled with a correct jury instruction and it is pure speculation to state

otherwise. If four jurors voted for life without the instruction what is to say that the other eight

(or two of them) may have voted life with the proper — When the Court engages in a

harmless error analysis in a death case it oversteps due process boundaries of the Constitution of

the United States and the Constitution of the State of Florida.

Accordingly, a harmless error analysis in a death penalty case violates the Due Process

provisions of Fifth and Fourteenth Amendments to the United States Constitution, the Sixth

Amendment right to an impartial jury, and Article I, § 9 and § 16 of the Florida Constitution.

The harmless error analysis also violates the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution as well as Article I, § 2 of the Florida Constitution.

Defendant Foster, after a flawed instruction, is destined for death while othe: Florida Defendants

may be given life sentences after a proper instruction.

B. GROUND II VIOLATION OF RIGHT TO IMPARTIAL JURY

Defendant's right to an impartial jury under the Sixth and Fourteenth Amendment to thé

United States Constitution and Art 1, § 16 of the Florida Constitution was violated by the

Prosecutor's participation in the “venire pre-selection” process in Bay County. The prosecutor

engaged in conduct that systematically excused jurors called for the venire prior to their random

selection for service on the jury panel called to serve on Defendant's case.

A copy of the prosecutor's venire list and excuses is attached hereto as Composite Exhibit

Said participation by the State in the venire excuse process violates Due Process under

the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, § 9 of the

Florida Constitution.

The jury selection process is also flawed under the Sixth and Fourteenth Amendments to

the United States Constitution right to an impartial jury and the corresponding right to an

impartial jury under Art I, § 16 of the Florida Constitution.

Defendant was tried by a petit jury which was not a fair cross-section of the community,

resulting in unconstitutional systematic exclusion of a significant portion of the population from

the jury pool. This deprived him of his rights under the Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution as well as the corresponding portions of the

Florida Constitution.

Defendant submits that he has standing to raise the issue of jury selection in his case.

-]2-

the individual response. the Assistant State Attorney would object to disqualification for some

venire members and not object to the release of others. The Court would then decide if the juror

should be disqualified after considering the venire member's response and the State's position.

No transcript or questionnaires exist, except Exhibit B. to record the reason for disqualifying. No

record exists to show the race. ethnicity, social class, income level, religion of the venire

members released or retained. Appellate counsel could not challenge this procedure without a

transcript. Defendant was denied the opportunity to challenge the venire under Rule 3.290 of the

Florida Rules of Criminal Procedure. Even more damaging to Defendant's right to a fair tral is

that. while he and his counsel were excluded from the part of the jury selection, the prosecutor

was present.

No record was made of this critical stage of jury selection except that located through

public records disclosure by current counsel's investigator Michael Glantz. Furthermore. all

LL

documentation, except Exhibit B, relating to the jury pool was destroyed before Defendants

conviction became final, thus rendering such records unavailable to counsel. To the extent trial

ne

—

counsel failed to discover and litigate this issue, Defendant was denied effective assistance of

=

counsel. An evidentiary hearing is warranted because the records and files do not conclusively

a

show that Defendant 1s not entitled to relief.

eae =

Prejudice is evident from any method which culls or removes prospective jurors,

————

particularly based upon gender, from the panel which is called for jury duty during Defendant's

trial week. The Court's (ex parte) exercising of practice of excusing jurors is the legal equivalent

to contacting the jury outside the presence of counsel. Such activity amounts to a denial of an

impartial jury panel because the selection process is no longer random. Ex parte challenge or

-14-

——_

Sie

D. GROUND IV DEFENDANT’S CONFINEMENT ON DEATH ROW FOR

TWENTY THREE (23) YEARS CONSTITUTES CRUEL AND UNUSUAL

PUNISHMENT UNDER THE UNITED STATES AND FLORIDA

CONSTITUTIONS

Defendant was originally sentenced to death on October 4, 1975. He has been on Death

Row for nearly twenty-four (24) years. His death sentences have been the subject of many post-

conviction and appellate endeavors which were largely successful in obtaining post-conviction

relief and partcularly a penalty phase retrial in 1993. Furthermore, he has survived two death

warrants. Mr. Foster came within 15 hours of execution in 1984. In 1981 he came within three

days of execution. ss j

His appeal of his last death sentence was affirmed on June 16, 1995. He was essentially

without conflict-free counsel until 1998.

Defendant submits that his 23 years on Death Row, except for various remands for post-

conviction hearings, constitutes cruel and unusual punishment contrary tc the Eighth and

Fourteenth Amendments to the United States Constitution and Article 1, § 17 of the Florida

Constitution.

A sentence of death is said to subject the recipient to “the uncertainty of the whole of it.”

It’s deterrent effect is also minimal after 23 years. A psychological report by Dr. Michael

Rappaport is attached hereto as Exhibit E reflecting Mr. Foster's mental state.

The deterrent value of incarceration for 23 years might be comparable to death itself and

“its imposition would then be the pointless and needless extinction of life with only marginal

contributions to any discernable social or public purposes.”

-16-

Mr. Foster's sentence of death violates the Eighth and Fourteenth Amendments of the

Constitution of the United States and Article 1, § 9 and § 17 of the Florida Constitution.

E. GROUND V CRUEL AND UNUSUAL PUNISHMENT

(1) Mr. Foster is innocent of the death penalty. Mr. Foster was sentenced to death in

violation of the Eighth and Fourteenth Amendments to the United States Constitution as well as

Article I, § 9 and § 17 of the Florida Constitution.

(2) Mr. Foster was denied his rights under the Eighth and Fourteenth Amendments to the

United States Constitution and under Article I, § 9 and § 17 of the Florida Constitution because

execution by electrocution is cruel and/or unusual.

(3) The death penalty by electrocution as well as the death penalty as a concept is cruel

and unusual punishment in the State of Florida. Florida leads the nation in individuals who were

wrongfully sentenced to death. A recent article in the St. Petersburg Times depicted twenty

people who had been wrongfully sentenced to death. Three of these people came within sixteen

hours of electrocution. Sydney P. Freedberg, “Freed from death row” St. Petersburg Times (July

4, 1999). (Composite Exhibit F). The likelihood that an innocent human being could actually be

executed or even come within days or hours of execution renders the death by electrocution as

well as the death penalty in Florida cruel and unusual punishment in violation of the Eighth

Amendment to the United States Constitution and Article I, § 17 of the Florida Constitution.

(4) Furthermore, execution by electrocution is cruel and/or unusual in the State of Florida

in view of the recent execution of Allen Davis wherein excess blood poured from Mr. Davis and

he took gasps of air as his death sentence was being imposed.

F. GROUND VI BRADY RULE VIOLATION

-]7-

4 mm

IN THE SUPREME COURT OF FLORIDA

CHARLES KENNETH FOSTER, CASE NO.: SC01-240

APPELLANT LOWER TRIBUNAL NO.: 75-486

VS.

STATE OF FLORIDA,

APPELLEE

INITIAL BRIEF OF APPELLANT

APPEAL FROM DENIAL OF 3.850 MOTION FOR POST-CONVICTION

RELIEF WITHOUT EVIDENTIARY HEARING ©

JOSEPH F. McDERMOTT, ESQUIRE

McDERMOTT LAW FIRM, P.A.

7116-A Gulf Pivd.

St. Pete Beach, FL 33706

Ph: (727) 367-1080, Ex: (727) 367-9940

SPN: 00002251, FBN: 052469

ATTORNEY FOR APPELLANT

es » g 2) dd J de

. ISSUE!

RIAL COURT ERRE =

TO FENDANT'S 3,850 MOTION FOR POS

OLATION OF HIS

HIS ALLEGED vi |

m {IMPARTIAL JURY (CONTRAR\*

O THE V, VI AND XIV AMENDMENTS UNITE®

STATES CONSTITUTION. AND oe rs ae

SECTIONS 9 AND 16 CONSTITUT

STATE OF FLORIDA) J

(STANDARD OF REVIEW - [INDEPENDENT ye

STANDARD—3.850 ALLEGATIONS NOT

CONCLUSIVELY REBUTTED B

identi n this issue is

| f the trial court to permit an evidentiary hearing ©

Failure 0 |

i that the state S

The amended 3.850 motion sufficiently alleges

reversible error. psi <i

until the public records review

jury notes were not avail2Pe

conflict counsel's investigator. (PC 12-15) Th

| . 7 it] hild

n effect at Defendant Foster s

ose notes revealed a systematic

trial was declared unconstitutional

The statute 1 neg

, 2g S |

ing Defendant's |

_ es and therefore did not ... compromise the

° ” ; su

case addressed “equal protecuion is

tatute under

f the jury.” (PC 96) Alachua very clearly declares the s

integrity of the jury:

17

ISSUE IV

THE TRIAL COURT ERRED IN DENYING

DEFENDANT’S 3.850 MOTION CLAIMS D.

CRUEL AND UNUSUAL PUNISHMEN—23 YEARS

ON DEATH ROW, AND E. CRUEL AND

UNUSUAL PUNISHMENT—ELECTRIC CHAIR

(CONTRARY TO THE V, VIII AND XIV

AMENDMENTS UNITED STATES

CONSTITUTION AND ARTICLE 1, SECTIONS 9

AND 17 CONSTITUTION OF THE STATE OF

FLORIDA)

The Florida Supreme Court has previously ruled against these claims. These

issues are submitted to the Florida Supreme Court for re-consideration and possible

future United States Constitutional review.

In Knight v. State, 746 So.2d 423 (Fla. 1999) the Florida Supreme Court

held:

Finally, Knight claims that to execute him after he has

already endured more than two decades on death row is

unconstitutionally cruel and unusual punishment. He

also argues that Florida has forfeited its right to execute

Knight under binding norms of international law.

Although Knight makes an interesting argument, we find

it lacks merit. As the State points out, no federal or state

courts have accepted Knight’s argument that a prolonged

stay on death row constitutes cruel and unusual

punishment, especially where both parties bear

responsibility for the long delay. See, e.g., White v.

Johnson, 79 F.3d 432 (5° Cir.1996); State v. Smith, 280

Mont. 158, 931 P.2d 1272 (1996). We also note that the

Arizona Supreme Court recently rejected this precise

claim. See State v. Schackart, 190 Ariz. 238, 947 P.2d

3]

ISSUE V

WHETHER THE SUPREME COURT ENGAGED ,

IN A CONSTITUTIONALLY FLAWED

HARMLESS ERROR ANALYSIS IN THE Supreme Court of Florida

DEFENDANT'S LAST APPEAL. FOSTER V.

STATE, 654 So.2d 112 (Fla. 1995)

(CONTRARY TO THE V AND VI AMENDMENTS

TO THE UNITED STATES CONSTITUTION, AND

SECTION 9, CONSTITUTION OF THE STATE OF

FLORIDA) No. SC01-240

This issue included in Defendant’s 3.850 Motion is more appropriately

! CHARLES KENNETH FOSTER,

addressed in his Petition for habeas corpus proceeding filed herewith. However, | Appellant,

Defendant requests this court revisit and reconsider this issue because of its | -_

interrelation with Issue Number II]—Double Jeopardy violation, and the felony ! STATE OF FLORIDA.

murder aggravator. If there is legally no evidence of a robbery or felony-murder, | Appellee.

then the cold, calculated, premeditated aggravator was misapplied under the \ :

No. SC01-767

harmless error standard and the unconstitutionally appked cold, calculated,

premeditated instruction.

CHARLES KENNETH FOSTER,

If defendant's case had been submitted to a jury without the robbery Dechhemes

etitioner,

aggravator and with an appropriate cold, calculated, premeditated instruction, the

VS.

eight to four death recommendation would likely be favorably different. Likewise,

MICHAEL W. MOORE, etc., et al.,

the sentencing judge would be more apt to impose a life sentence without the Respondents.

[February 14, 2002]

robbery aggravator. PER CURIAM.

34

Charles Kenneth Foster, a prisoner under the sentence of death, appeals an

each fall into one of three

categones: procedurally barred, wi

} . Without merit, or

conclusively refuted by the record

RIGHT TO AN IMPARTIAL JURY

-?.

—

Se Cems Mp a

and litigate this issue, Defendant was denied effective assistance of counsel.”

Foster has simply failed to allege specific facts that, when considering the totality

of the circumstances, demonstrate a deficiency on the part of counsel which

resulted in prejudice to the defendant. Furthermore, Foster has not demonstrated

that he was constitutionally entitled to have pregnant women and women with

small children serve on his jury since section 40.01(1), Florida Statutes (1975),

provided them with an excuse for service and this Court has upheld the statute in

the face of constitutional concerns. See McArthur v. State, 351 So. 2d 972, 975

(Fla. 1977). Therefore, we find the tral court did not err by denying Foster an

evidentiary hearing on this claim.

BRADY CLAIM

Foster alleges the trial court erred by not holding a hearing on his claim that

the State withheld exculpatory evidence from him in violation of Brady v.

Maryland, 373 U.S. 83 (1963).° Specifically, Foster alleges the State did not

disclose (until a public records request), a letter from jail physician Dr. Russell

6. We have held there are three components that a defendant must show in

order to be successful in a Brady claim: (1) the evidence must be favorable to the

defendant because it is either exculpatory or because it is impeaching; (2) the

evidence must have been withheld by the State, either willfully or inadvertently;

and (3) prejudice to the defendant must have ensued. See State v. Riechmann, 777

So. 2d 342, 362 (Fla. 2000).

-9-

Stewart to Sheriff Tullis Easterling dated July 31, 1975, in which Dr. Stewart

observed “obvious mental disturbance” in Foster during an examination before

trial. However, the record affirmatively and conclusively refutes Foster's claim

that the letter was withheld by the State, either willfully or inadvertently, because

the record reflects that defense counsel was in possession of this letter on June 6,

1990. during Foster’s resentencing hearing. Defense counse] moved to have the

letter entered into evidence and the court admitted it as defense exhibit number 4

during the penalty phase of Foster's resentencing hearing. We therefore affirm the

tna! court’s summary denial of this claim because Foster’s Brady claim is

conclusively refuted by the record.

DOUBLE JEOPARDY VIOLATION

Foster alleges the tna] court erred by summarily denying his claim that the

jury’s two murder verdicts, finding him guilty of separate counts of premeditated

murder and felony —s for a single death, violate double jeopardy principles.

We find the jury’s dual verdict 1s supported by the evidence in this case, and, as

we stated in Lamb v. State, 532 So. 2d 1051, 1052 (Fla. 1988), “there is no reason

why a defendant cannot premeditate a murder committed during the course of a

felony.” We hereby affirm the mal court’s summary denial of this claim because

the record reflects that the tnal court properly adjudicated Foster guilty of a single

-10-

murder conviction for first-degree murder, which conclusively refutes Foster’s

double jeopardy claim. See id. Of course, Foster also received a single sentence

for the murder.

CRUEL AND UNUSUAL PUNISHMENT

Foster argues the tal court erred when it summarily denied his claim that

the twenty-three years he has spent on death row constitutes crue] and unusual

punishment. We have previously held an extended stay on death row does not

constitute cruel and unusual punishment. See Knight v. State, 746 So. 2d 423, 437

(Fla. 1998). We also reject Foster’s claim that the death penalty is per se cruel and

unusual punishment, an issue that we have already decided adversely to him. See

Davis v. State, 742 So. 2d 233, 235-36 (Fla. 1999) (holding that the claim that the

death penalty is basically cruel and unusual punishment is without merit).

Therefore, we affirm the trial court’s summary denial of this claim, as we find that

it is without merit.

HARMLESS ERROR ANALYSIS

Foster alleges this Court engaged in a constitutionally flawed harmless error

analysis regarding our conclusion in Foster v. State, 654 So. 2d 112, 115 (Fla.

1995), in which we stated that because the trial court found no statutory mitigators

and three strong aggravators, the giving of an erroneous cold, calculated, and

~

-l1-

premeditated aggravator instruction did not affect the jury’s consideration of his

sentence, and therefore the giving of such instruction was harmiess error. A

postconviction motion is not the proper vehicle to challenge a decision of this

Court. Rule 3.850 motions are a vehicle provided to challenge collateral issues

related to the mal court proceedings. not appellate decisions. See Fla. R. Cnm. P.

3.850(a)(1)-(6). Further, this claim is procedurally barred because it 1s an

improper relitigation of an issue upon which this Court has already ruled.

See Brown v. State. 596 So. 2d 1026, 1028 (Fla. 1992). We therefore affirm the

trial court's summary denial of this claim.

HABEAS CORPUS

Foster alleges both appellate counse! and postconviction counsel were

ineffective for not sufficiently arguing that the trial court erred when 1t stated that

aggravators were established beyond a reasonable doubt, without a specific factual

analysis that a robbery was committed. The issue of appellate counsel's

effectiveness is appropriately raised in a petition for writ of habeas corpus and we

consider it here. See Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000).

However. this Court has held that ineffective assistance of postconviction counsel

1s not a cognizable claim. See Waterhouse v. State, 792 So. 2d 1176, 1193 (Fla.

2001) (citing State ex rel. Butterworth v. Kenny. 714 So. 2d 404, 408 (Fla. 1998),

-]2-

IN THE

SUPREME COURT OF THE UNITED STATES

NO:

CHARLES KENNETH FOSTER,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

CERTIFICATE OF SERVICE

| HEREBY CERTIFY that copies of the Petition for Writ of Certiorari and

Appendix have been served by U.S. Mail upon MICHAEL MOORE,

SECRETARY, Department of Corrections, 2601 Blair Stone Road, Tallahassee,

Florida 32399-2500; the Office of the Attorney General, Attention: RICHARD

MARTELL, ASST ATTORNEY GENERAL, The Florida Capitol Building, Plaza

Level One, Tallahassee, Florida 32399-1050; and The Office of the State

Attorney, Bay County, Attention: ALTON PAULK, ASA, P O Box 1040, Panama

City, FL 34202 this the & “— of May, 2002. we

Beach, FL 33706

: (727) 367-1080, Fx: (727) 367-9940

ATTORNEY FOR PETITIONER