Opposition Brief — Van Poyck v. Singletary

Supreme Court, US |

i es AS ae:

Case No. 98-1147 FEB 17 1999

IN THE SUPREME COURT OF THE UNIFED STATES

October Term 1998 CLERK

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WILLIAM VAN POYCK, Petitioner

VS.

STATE OF FLORIDA, Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

BRIEF FOR RESPONDENT IN OPPOSITION

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

CELIA A. TERENZIO

ASSISTANT ATTORNEY GENERAL

FLORIDA BAR NO. 0656879

OFFICE OF THE ATTORNEY GENERAL

1655 PALM BEACH LAKES BLVD.

SUITE 300

WEST PALM BEACH, FL 33401-2299

(561) 688-7759

COUNSEL FOR RESPONDENT

QUESTIONS PRESENTED

I. WHETHER PETITIONER HAS

PROPERLY EXHAUSTED THIS CLAIM IN

STATE COURT BELOW. (Petitioner’s

Question I restated).

II. WHETHER THIS COURT SHOULD

REVIEW A STATE CGLLATERAL

PROCEEEDING WHERE PETITIONER

DOES NOT FAIRLY PRESENT ANY

FEDERAL QUESTION SINCE THE JURORS

COMPLAINED ABOUT WERE NOT

CONSTITUTIONALLY OBJECTIONABLE

(Petitioner’s questions II and II] restated).

OOOO EEE EEE” CCl mle

sy egy 6 Us |

TABLE OF CONTENTS ......... .F ve . Ul

TABLE OF CITATIONS .... ) , 1V-Vi

OPINION BELOW ..........

CONSTITUTIONAL PROVISIONS

JURISDICTION .......

STATEMENT OF THE CASE 2

STATEMENT OF THE FACTS 2

REASONS FOR DENYING THE WRIT

WUBSEBUN EL .......

I WHETHER PETITIONER HAS PROPERLY

EXHAUSTED THIS CLAIM IN STATE

COURT BELOW. (Petitioner’s Question |

restated).

Cera WE oie a be Ficlets elec eee eer eee 6

IT.

WHETHER THIS COURT SHOULD REVIEW

A STATE COLLATERAL PROCEEDING

WHERE PETITIONER DOES NOT FAIRLY

PRESENT ANY FEDERAL QUESTION

SINCE THE JURORS COMPLAINED ABOUT

WERE NOT CONSTITUTIONALLY

OBJECTIONABLE.

(Petitioner’s questions II and II restated).

CONCLUSION .... Pia Falta erer etnies a aT aetns 13

ill

Cases

Adams v. Robertson,

520 U.S. 83 (1997)....0.. cee ecceeccceecee.

Bertolotti v. Dugger

883 F.2d 1503 (11th Cir. 1989).................

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394 U.S. 437 (1969)... 0... eccceeccceceee ees

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634 So.2d 1066 (Fla. 1994)..000000 ooo...

Coleman v. Thompson,

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Edmonson v. Leesville Concrete (2..

eee ee eee ewes

Sed Te. GU ID bs Gicncviecicte keen deed,

Ferguson v. Singletary,

632 So.2d 53 (Fla. 1993)..00000. 00. e cece.

Georgia v. McCollum,

POO Bs EE CIGDZ). occa nsesecccsereessdccks cc,

iV

Groover v. Singletary

FO BO. 2 GEG Ce BOO i ccccevssvncccccteucedsvrssusvoves Zhe

J.E.B. v. Alabama,

aS Ps ee CE, vicde ic ceccevcuves sdnoddecdowss tee 8

Jackson v. Dugger,

iB we bay dss, Fe 3.) | Senne ncene: 9,12

Jefferson v. State,

Se ee Oe Os Nii ckvddadéssvcaceccoctevedtieteaseents 8

Jones v. Barnes,

ae Fe Ee dc ce pevcscccevdsdevbacedscedouaasedeedie 7)

586 So.2d 317 (Fla. 1991)......... 0c cece eee e cece cece cece eeeee: Q

504 U.S. 719 (1992)... ooo ccc ccccccccccecceceucecceceuces 6,11

Pentecost v. State,

545 So.2d 861(Fla. 1989). 00000. c cece cece ee eens 7

Ross v. Oklahoma,

487 U.S. 81 (1988)... cece ccc ccc cece eeecceuee 5-6

Sochor v. Florida,

504 U.S. 527 (1992)... 0. ccc cece cece cceueeceeees 8

466 U.S. 668 (1984)..0 0. cece cccne cece ceeeee )

Trotter v. State,

576 So.2d 691 (Fla. 1990)... 00. c cece cece eee 7

Van Poyck v State

560 So.2d (Fla. 1990)....0.00 0000 ccoooccceeeeee eee. 3

V V ,

715 So.2d 930 (Fla. _,_. SERN Usenet 1,3,9,11

Van _ Poyck v. State,

694 So.2d 686 (Fla)

cert denied,

_ US. ___, 1185S. Ct. 559,

139 L.Ed.2d 400 (1997)... ooo. 3

Wainwriei Witt.

469 U.S. 421 (1985).......0......... ap eubncesepatedennmuduuse 10

Webb v. Webb,

451 U.S. 493 S| ee, .

Will;

651 So.2d 84 (Fla. 1994)..000 4

ADDITIONAL AUTHORITIES:

28 U.S.C. 1257 and Rule 10(c).........................0..0...

v1

Case No. 98-1147

IN THE SUPREME COURT OF THE UNiTED STATES

October Term 1998

WILLIAM VAN POYCK, Petitioner

VS.

STATE OF FLORIDA, Respondent

LT a ae a

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

OPINION BELOW

The opinion below has been reported as Van Poyck v.,

Singletary, 715 So. 2d 930 (Fla. 1998).

CONSTITUTIONAL PROVISIONS

Respondent accepts as accurate Petitioner’s statement

regarding the applicable constitutional provisions involved.

JURISDICTION

Petitioner is seeking jurisdiction pursuant to 28 U.S.C.

§ 1257 and Rule 10(c). Section 1257(a) is the appropriate

provision to the extent that the central issue in this petition is

whether petitioner received effective assistance of appellate

counsel as guaranteed to him under the United States

Constitution. However, petitioner cannot demonstrate that this

Court should exercise its discretion to review this claim.

Nor can jurisdiction be found under Rule 10(c) since

petitioner cannot demonstrate that there is any conflict between

the opinion of the Florida Supreme Court and “relevant

decisions of this Court.” Petition at 3.

STATEMENT OF THE CASE

The Florida Supreme Court entered its opinion on May

14, 1998. A motion for rehearing was denied on August 7,

1998. Petitioner is now seeking certiorari review in this Court.

STATEMENT OF THE FACTS

Respondent rejects Petitioner’s statement of the facts as

it contains a slanted and somewhat inaccurate version of the

facts. Petitioner’s attempt to bolster that rendition with

inappropriate editorialization also warrants a rejection of same.

A rendition of the facts germane to resolution of this claim

appears in the Florida Supreme Court opinion. Petitioner’s

appendix at Al-14; Van Poyck 715 So. 2d at 931. An

accurate recount of how the issue under review was presented

to the Florida Supreme Court appears in the Respondent’s

appendix A. Also included in appendix B to the state’s

response is Van Poyck’s motion for rehearing. Finally, the

Respondent’s appendix C contains excerpts from the original

record on appeal, which include the voir dire responses of

jurors Moody and Bradford.

REASONS FOR DENYING THE WRIT

QUESTION I

WHETHER PETITIONER HAS PROPERLY

EXHAUSTED THIS CLAIM IN STATE

COURT BELOW. (Petitioner’s Question [I

restated).

As noted above, petitioner was convicted of, and

sentenced to death for, the first-degree murder of correctional

officer Fred Griffis. On appeal, petitioner challenged the

competency of two jurors Brushci and Abramis. The Florida

Supreme Court denied this claim since neither juror ultimately

sat, and since both were excused sua sponte by the trial court:

therefore, the issue became moot. Van Poyck, 560 So. 2d at

560/1066,1070 (Fla. 1990). Petitioner then unsuccessfully

challenged his conviction and sentence in a motion for

postconviction relief. Van Poyck v. State, 694 So. 2d 686

(Fla.), cert. denied, U.S. _, 118 S.Ct. 559, 139 L. Ed. 2d

400 (1997). He also unsuccessfully challenged the

effectiveness of appellate counsel in a habeas petition to the

Florida Supreme Court. Therein, petitioner accused appellate

counsel of failing to properly present on appeal an issue

regarding the trial court’s erroneous denial of seven challenges

for cause. Van Poyck vy. Singletary, 715 So.2d 930 (Fla.

1998). It is the denial of that claim in state court that provides

petitioner’s basis for certiorari review here.

At trial, petitioner challenged for cause the following

potential jurors: Ms. Busto, Ms. Moker, Mr. Carter, Mr.

Nickerson, Mr. Miller, Mr. Farmer, and Mr. Aldridge.

Petitioner’s appendix at A4-12; Van Poyck, 715 So. 2d at

933. In his state habeas petition, although Van Poyck conceded

that he struck all seven jurors with peremptory challenges, he

contended that the trial court improperly denied his challenges

for cause, thereby forcing him to accept two objectionable

jurors: Ms. Moody and Mrs. Bradford. He did not, however,

argue how either Ms. Moody or Mrs. Bradford was

objectionable. Rather, he merely alleged that he had preserved

his argument for review by challenging Moody and Bradford

for cause and by alleging that he would have stricken them

peremptorily if he had not had to use his peremptories to strike

the seven other objectionable jurors. In fact, Van Poyck

concluded his argument to the Florida Supreme Court as

follows:

This undermines any confidence in the

appellate process and mandates either a new trial

(as to those jurors who expressed a belief in Mr.

Van Poyck’s guilt: Busto, Farmer and Aldridge)

or sentencing hearing (as to those jurors who

were biased towards the death penalty: Busto,

Moker, Carter, Nickerson, Miller and Farmer).

The trial court’s error in refusing to grant a

challenge for cause can never be harmless error.

Respondent’s appendix at A24. Ultimately, in denying his

state habeas petition, the Florida Supreme Court held, “In

conclusion, we find that Van Poyck's appellate counsel did not

render ineffective assistance for failing to pursue and argue Van

Poyck's claim that the other seven venirepersons were biased

or prejudiced. See Williamson v. Dugger, 651 So.2d 84, 86

(Fla.1994); See Chandler v. Dugger, 634 So.2d 1066, 1068

(Fla.1994).” Petitioner’s appendix at A15; Van Poyck, 715

So. 2d at 934.

Petitioner now contends, however, that the Florida

Supreme Court’s analysis should have focused on the

competency of Moody and Bradford, and not on the

competency of the other seven jurors. Petitioner accuses the

Florida Supreme Court of misapplying the principles of Ross v.

Oklahoma, 487 U.S. 81 (1988), by strictly reviewing the trial

court’s denial of cause challenges for the seven jurors whom

petitioner ultimately excused with peremptory challenges.

Petitioner’s complaint regarding the Florida Supreme

Court’s treatment of the issue, however, is disingenuous.

Petitioner’s state habeas petition focused exclusively on the

seven jurors whom he initially challenged for cause and later

excused peremptorily. He did not recount the actual responses

of the two jurors who actually sat: Moody and Bradford. Nor

did he allege in any way that they were “objectionable.”

Respondent’s appendix at A3-A24. The pleadings filed bytr

petitioner make it evident that the Florida Supreme Court

addressed the issue in the identical fashion as it was presented

in the petition.!

Van Poyck cannot now complain to this Court that the

State supreme court’s analysis was flawed. Any attempt to

allege error by the state supreme court as a rationale for review

in this petition borders on the frivolous. More importantly, his

failure to raise the same argument in the state supreme court

that he raises in this Court precludes this Court’s review. This

Court has repeatedly stated that review of state court judgments

pursuant to 28 U.S.C. § 1257 will be precluded if the federal

claim has not been fairly presented to the state court. Cardinale

y. Louisiana, 394 U.S. 437 (1969); Webb v. Webb, 451 U-S.

493, 495 (1981); Adams v. Roberison, 520 U.S. 83 (1997);

' Petitioner’s motion for rehearing before the Florida Supreme

Court also did not point out to the court that its analysis was allegedly

flawed under Ross v, Oklahoma 487 U.S. 81 (1988). In fact, Ross was not

mentioned anywhere in either the state habeas petition or the motion for

rehearing. Respondent’s appendix A and B.

5

481 U.S. 493 (1981). Since petitioner failed to adequately

present the requisite federal issue in state court, this Court lacks

jurisdiction and must deny this petition.

QUESTION I

II. WHETHER THIS COURT SHOULD

REVIEW A STATE COLLATERAL

PROCEEDING WHERE PETITIONER DOES

NOT FAIRLY PRESENT ANY FEDERAL

QUESTION SINCE THE JURORS

COMPLAINED ABOUT WERE NOT

CONSTITUTIONALLY OBJECTIONABLE

(Petitioner’s questions II and II restated).

In his final two issues, Van Poyck alleges that review is

warranted because (1) the instant case presents an opportunity

for this Court to address an issue that it left undecided in Ross

v. Oklahoma, 487 U.S. 81, 90 n. 4 (1988); and (2) petitioner’s

jury contained “two jurors who were unalterably in favor of the

death penalty” in violation of both Ross and Morgan v. Illinois,

504 U.S. 719 (1992). Review is not warranted for the

following reasons. First, the rhetorical question posed by

this Court over ten years ago in Ross does not apply in the

instant case. Therein, this Court reemphasized long-standing

precedent that peremptory challenges are not constitutionally

protected. Ross, 487 U.S. at 88. Ross had claimed that he had

been “forced” to use a peremptory strike on a juror, after the

trial court had erroneously refused to excuse the juror for

cause. Jd. at 85. According to this Court, Ross was not

entitled to federal relief, however, because he was unable to

demonstrate that any of the jurors who actually sat were in any

way biased or otherwise incompetent. Id, In rejecting Ross’s

argument that he was unfairly required to use a peremptory

strike, this Court refused to attach any constitutional

significance to the allotment of peremptory challenges. In

fact, the Court recognized a state’s right to require defendants

to use peremptory challenges to cure a trial court’s erroneous

denial of cause challenges. Id, at 90. This Court further

stated, “[I]t is for the State to determine the number of

peremptory challenges allowed and to define their purpose and

the manner of their exercise.” Id,

In a footnote seized upon by Van Poyck, this Court

allegedly left open the question of whether a free-standing

federal constitutional right to peremptory challenges would

exist if such challenges were created under a state system that

did not include any limitation on their use or purpose. In other

words, if a state grants to a defendant the absolute freedom and

unfettered discretion to the use of peremptory Challenges, then

the broader question “may” become: Under what circumstances

would a defendant be denied federal due process if he or she

were forced to use a peremptory challenge because of trial

court error? Jd, at 90-92 & n.4. Petitioner claims that the

instant case presents the opportunity to address this broader

question.

Fatal to petitioner’s argument, however, is that Florida

law does, in fact, place restrictions on the use of peremptory

challenges. To preserve an issue regarding the erroneous

denial of challenges for cause, a defendant must exhaust all of

his peremptory challenges, request additional strikes, and

identify the jurors whom he would strike with the additional

challenges. If his request is then denied, a defendant must

demonstrate on appeal that the panel contained an objectionable

juror. Pentecost v. State, 545 So. 2d 861, 863 n.1 (Fla. 1989);

Trotter v, State, 576 So. 2d 691, 693 (Fla. 1990). Florida law

makes clear that peremptory challenges are simply a means to

an end and do not possess any constitutional significance in and

of themselves. See Jefferson v. State, 595 So. 2d 38 (Fla.

1992) (right to impartial jury is constitutionally protected rather

than right to use of peremptory challenges). As such, this

Court must reject petitioner’s invitation to address the question

allegedly left open in Ross, since a defendant in Florida does

not enjoy the unfettered freedom to the use of peremptory

challenges as petitioner contends.”

Second, there exists two separate independent and

adequate state grounds that warrant a denial of any further

review. Any federal constitutional challenge to jurors Bradford

and Moody was never fairly presented below.’ Consequently,

failure to afford the state court an opportunity to address the

issue precludes review before this Court. See Cardinale v.

Louisiana, 394 U.S. 437, (1969) (finding that review of state

court judgments pursuant to 28 U.S.C. § 1257 is precluded if

the federal claim not fairly presented to the state court); Webb

vy. Webb, 451 U.S. 493, 495 (1981) (same); Adams v.

Robertson, 520 U.S. 83 (1997). Also, any challenge to juror

Bradford is further barred since the issue was not preserved at

trial and, therefore, procedurally barred before the Florida

Supreme Court. Petitioner’s appendix at A3 n. 3. This

additional procedural defect precludes review in this Court.

See Sochor v. Florida, 504 U.S. 527 (1992) (finding state

procedural bar constitutes an independent and adequate state

ground which precludes federal review); Coleman v.

Thompson, 501 U.S. 722 (1991) (same).

? Nor can there be any question that this Court has consistently

determined since Ross that peremptory challenges are not constitutionally

protected. Edmonson v. Leesville Concrete Co,, 500 U.S. 614, 620 (1991);

Georgia v. McCollum, 505 U.S. 42, 57 (1992); LE.B. v, Alabama, 511

U.S. 127, 137 n.7 (1994).

> See respondent’s argument to Question I.

8

Without waiving the dispositive arguments presented

above, respondent will address the merits of the claim. As

noted in Question I, the claim as presented in state court alleged

that appellate counsel was ineffective for failing to challenge

the trial court’s erroneous denial of seven Challenges for cause.

As already stated above, and conceded by petitioner, any

challenge to a trial court’s denial of a challenge for cause must

focus on the jurors who actually sat. Ross, 487 U.S. at 86.

Therefore, in the instant petition, Van Poyck must demonstrate

that counsel’s failure to challenge the competency of jurors

Bradford and Moody resulted in both deficient performance and

prejudice under the requirements of Strickland v. Washington,

466 U.S. 668, 687 (1984).

A review of the record and of the Florida Supreme

Court’s opinion demonstrates that petitioner cannot establish his

claim. First, petitioner fails to acknowledge the Florida

Supreme Court’s finding that any challenge to the competency

of juror Bradford had been waived by trial counsel’s failure to

preserve the issue for appeal. Van Poyck, 715 So. 2d at 931,

n.3. It is axiomatic that appellate counsel cannot be deemed

ineffective for failing to pursue an issue that was not preserved

at trial. Jackson v. Dugger, 931 F. 2d 712, 715 (11th Cir.

1991); Bertolotti_v. Dugger, 883 F.2d 1503, 1523 (11th

Cir. 1989); see also Groover v. Singletary, 656 So. 2d 424 (Fla.

1995); Ferguson v. Singletary, 632 So. 2d 53, 58 (Fla. 1993):

Medina v, Dugger, 586 So. 2d 317, 318 (Fla. 1991); cf_Jones

y. Barnes, 463 U.S. 745, 751-753 (1983)(finding that effective

appellate counsel is not required to raise every conceivable

issue).

Second, petitioner fails to present to this Court any of

the actual responses given by jurors Bradford and Moody.

Rather, he devotes all of the factual recitation to the irrelevant

responses of the seven potential jurors who never sat. Petition

at 7-17. Even if he were to establish that the trial court should

have granted any or all of his seven challenges for cause,

petitioner does not demonstrate how jurors Moody and

Bradford were incompetent to sit under the requirements of

Ross and Wainwright v. Witt, 469 U.S. 421 (1985).

Consequently, as presented, petitioner has failed to even

present this Court with a federal question to review. Ross, 487

U.S. at 88 (ruling that there is no federal constitutional right to

peremptory challenges).

Third, Van Poyck argues that he is entitled to relief

because jurors Moody and Bradford were unalterably in favor

of the death penalty. Jurors who express such fixed views of

the death penalty, he claims, must be excused for cause.

Morgan v. Illinois, 504 U.S. 719 (1992). This argument,

however, is both factually and legally incorrect. Both jurors

Stated that, although they were in favor of the death penalty,

neither would automatically vote for it. Ms. Moody never

expressed any difficulty in being able to render a fair and

impartial verdict. She stated that she would not prejudge the

case, but rather would decide the case based on the evidence

presented. (R 509). She consistently and unequivocally stated

that she would follow the law and would not automatically

recommend the death penalty.* (R 511-514). Respondent’s

appendix at C11-21. Likewise, Ms. Bradford stated that she

had no preconceived notion of guilt; the case should be tried

in the courtroom and not in the media. (R 866). She indicated

that her opinion about the appropriateness of the death penalty

depended on the facts of the case and although she favored the

* Petitioner did not challenge Ms. Moody for cause at the time she

gave her responses. It was not until after Van Poyck used all of his

available peremptory strikes that he mentioned Moody as someone he

wanted to remove either for cause or peremptorily.

10

death penalty she would not automatically recommend death.°

(R 871). Respondent’s appendix at C1-C10.

Neither Bradford nor Moody expressed opinions similar

to those of the jurors in Morgan, upon which petitioner relies.°

This Court granted relief in Morgan based on the trial court’s

refusal to allow the defendant an opportunity to conduct further

voir dire of certain jurors based on the initial responses.

Morgan, 504 U.S. at 736. According to this Court, given

those jurors’ extreme sentiments in favor of the death penalty,

the defendant should have been permitted to question them

further.

In the instant case, Van Poyck was never precluded

from questioning Moody, Bradford, or any other juror,

regarding their views on the death penalty. And the record

does not support any explicit or implicit allegation to the

contrary. Consequently, Morgan offers no support for

petitioner’s claim.

In conclusion, this Court must deny review. Both jurors

expressed unequivocal assertions that they would follow their

oath as jurors and decide this case strictly on the evidence

presented. The law requires no more. See Witt, 469 U.S. at

Trial counsel did not use an available peremptory strike to

remove Bradford at the time she gave her responses, nor did he identify

Bradford as someone he would strike if he were given an additional

peremptory challenge.

z Although petitioner also relies on the Florida Supreme Court’s

dissenting opinion in his case for support, he fails to point out that the

dissenters determined that juror Moody’s responses did not warrant a

challenge for cause. Petitioner’s appendix at A26 n.6; Van Poyck v.

Singletary, 715 So. 2d 930, 934 n.6. The dissenters also noted that any

challenge regarding Bradford was procedurally barred. Jd. n.3.

1]

424. Therefore, appellate counsel was not ineffective for

failing to question the competency of either juror Moody or

Bradford. See Chandler v. State, 634 So. 2d 1066, 1068

(Fla. 1993) (rejecting claim of ineffective assistance of

appellate counsel because counsel is not expected to raise

nonmeritorious claims); Groover v. Singletary, 656 So. 2d 424

(Fla. 1995) (same); Jackson v. Dugger, 931 F. 2d 712, 715

(11th Cir. 1991).

CONCLUSION

Based on the foregoing arguments and authorities,

Respondent respectfully requests that this Honorable Court

deny Petitioner’s request for certiorari review.

Respectfully submitted,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

CELIA A. TERENZIO

Assistant Attorney General

Florida Bar No. 0656879

OFFICE OF THE ATTORNEY GENERAL.

1655 Palm Beach Lakes Blvd.

Suite 300

West Palm Beach, FL 33401-2299

(561) 688-7759

COUNSEL FOR RESPONDENT

13

INDEX TO APPENDIX

Petitioner’s State Habeas Petition A1-A24

Petitioner’s Motion for Rehearing to

State Habeas B1-B6

Record on Appeal, FSC Case No. 89,870 Ci- C21

A mh

A-]

APPENDIX A

IN THE SUPREME COURT OF FLORIDA

WILLIAM VAN POYCK,

Petitioner,

V. Case No. 89,870

HARRY K. SINGLETARY, JR.,

Secretary, Florida Department

of Corrections,

Respondent.

Nee Ne Ne Ne Ne Ne Ne ae ae es ee

PETITION FOR EXTRAORDINARY RELIEF

AND FOR WRIT OF HABEAS CORPUS

GERALD S. BETTMAN, ESQUIRE

Florida Bar No. 290661

1027 Blackstone Building

233 East Bay Street

Jacksonville, FL 32202

(904) 354-5262

JEFFREY O. DAVIS

MITCHELL S. MOSER

Quarles & Brady

411 East Wisconsin Avenue

Milwaukee, WI 53202

Attorneys for Petitioner

(414) 277-5000

A-2

GROUNDS FOR HABEAS RELIEF

MR. VAN POYCK RECEIVED

INEFFECTIVE ASSISTANCE

OF COUNSEL ON _ HIS

DIRECT APPEAL WHEN

APPELLATE COUNSEL

FAILED TO ADEQUATELY

RAISE THE ISSUE OF THE

TRIAL COURT’S ERROR IN

REFUSING TO GRANT

DEFENSE CHALLENGES FOR

CAUSE REGARDING JURORS

WHO INDICATED THAT

THEY WOULD

AUTOMATICALLY VOTE

FOR DEATH, AND WHO

WERE CONVINCED OF MR.

VAN POYCK’S GUILT,

CONTRARY TO THE SIXTH,

EIGHTH AND FOURTEENTH

AMENDMENTS TO THE U.S.

CONSTITUTION.

Mr. Van Poyck’s first claim is based on the fundamental

Sixth and Fourteenth Amendment premise that a defendant in

a Capital case is entitled to have that cas» heard by a jury with

no preconceived notions of guilt or personal views that death is

always the appropriate sentence for one convicted of first

degree murder. Such jurors must be struck for cause. It is

reversible constitutional error if they are not --even if the juror

or jurors do not sit on the panel, so long as the defendant then

uses a peremptory strike on that juror or jurors and then does

not have one available to strike another objectionable juror.

That circumstance occurred here. Unfortunately, for Mr. Van

A-3

Poyck, his appellate counsel named the wrong juror, then

compounded the problem by failing to articulate a coherent

argument on the issue, cite any relevant authority or engage in

any analysis whatsoever.

A: ‘The Teiet Cont Comment Bevis 5

As a starting point, a review of the underlying legal

error involved is in order. A juror must be struck for cause if

so challenged and “there is basis for any reasonable doubt as to

any jurors possessing that state of mind which will enable him

to render an impartial verdict based solely on the evidence

submitted and the law announced at the trial ....” Singer v.

State, 109 So. 2d 7, 24 (Fla. 1959) (emphasis added). If a

potential juror demonstrates a bias toward the death penalty, the

juror must be excused even if he later states that he would

follow the court’s instructions and the law. See, e.g., Bryant

v. State, 656 So. 2d 426, 428 (Fla. 1995); Floyd v. State, 569

So.2d 1225, 1230 (Fla. 1990), cert, denied, 501 U.S. 1259

(1991); Hill v. State, 477 So. 2d 552,555 (Fla. 1985).

Similarly, a court must strike for cause a juror who does not

presume the defendant innocent or who expects the defendant

to produce evidence of his innocence, again even if he later

says he will follow the Court’s instructions. See, ¢.8..

Hamilton v, State, 547 So.2d 630, 632 (Fla. 1989); Huber v.

State, 669 So.2d 1079,1081 (Fla. 4th DCA 1996): Perea vy.

State, 657 So. 2d 8, 9 (Fla. 3d DCA), rev, denied, 662 S.2d

632 (Fla. 1995).

It is per se reversible error for the court to erroneously

deny a for cause challenge if the defendant then uses a

A-4

peremptory challenge to strike the juror, eventually exhausts

his peremptory challenges and asks for, but is denied, an

additional peremptory challenge. Trotter v. State, 576 So.2d

691, 693 (Fla. 1991). The defendant must identify a juror that

he found objectionable who sat on the jury after the court

denied his request for an additional peremptory challenge. The

juror need only be somehow objectionable--the defendant need

not show that the juror should have been struck for cause. Id.,

Diaz v. State, 608 So.2d 888, 890 (Fla. 3d DCA 1992), rev,

denied, 613 So. 2d 9 (Fla 1993). In the case at bar, two such

objectionable jurors eventually sat on Mr. Van Poyck’s jury:

Goldie Moody and Mary Bradford. Both were challenged for

cause, unsuccessfully, and both sat on the jury because Mr.

Van Poyck was forced to expend his peremptory challenges on

other jurors who should have been excused for cause.

: The Trial Court Erroneously Denied For Cause

Challenges To Pro-death Jurors And Jurors Who

Did Not Presume Mr. Van Poyck To Be

Innocent.

During jury selection in this matter, Mr. Van Poyck

moved to strike for cause several potential jurors, which

challenges the Court denied. Mr. Van Poyck was then forced

to use peremptory challenges on the venirepersons who had

demonstrated a bias for the death penalty and/or a presumption

of Mr. Van Poyck’s guilt. Specifically, Wilma Busto

evidenced a clear bias for the death penalty and said she would

require Mr. Van Poyck to submit evidence of his innocence:

THE COURT: Do you feel that you, personally,

could sit on a jury and hear the evidence and hear my

instructions on the law and follow them and personally make a

recommendation of death?

A-5

MS. BUSTO: Yes.

THE COURT: Do you feel in the alternative tha

you could personally recommend life?

MS. BUSTO: No.

THE COURT: You think you would recommend

death in all cases?

MS. BUSTO: If I considered that the person is

a criminal then --

R. 724-25.

*x**eXK *

THE COURT: Suppose an aggravated factor, that

aggravated factor is presented, can you conceive of an

aggravating factor of somebody having a prior record, being a

criminal, would you conceive of a case where you would bring

back a life recommendation even with that aggravating factor

knowing the person is a criminal?

MS. BUSTO: No. If he’s already a criminal,

he’s going to be a criminal. That’s the way I think about it.

MR. KLEIN: Only appropriate sentence in a

case where somebody like that who’s already criminal would be

death.

MS. BUSTO: Yeah

R. 728-29.

A-6

MR. KLEIN: Would you, if you knew that, let’s

put it this way, Miss Busto, would you make me present any

evidence on behalf of the defendant to prove that --

MS. BUSTO: Yes.

MR. KLEIN: -- that he was innocent?

MS. BUSTO: Yes. I would like to see some

proof, yes.

R. 730. This exchange is indistinguishable from the voir dire

in Hill, 477 So.2d at 555, where the Court found the trial court

erred by not striking the juror for cause. See also Hamilton v.

State, 547 So.2d 630, 632 (Fla. 1989) (juror who said she

would require the defendant to present evidence to demonstrate

he was not guilty should have been struck for cause). The

Court here denied the defendant’s challenge for cause, R. 733,

forcing him to strike Ms. Busto from the panei with a

peremptory challenge. R. 1344.

Linda Moker also demonstrated an unacceptable bias for

the death penalty:

MR. KLEIN: Suppose the case involves the

shooting of a police officer or prison guard. Would you think

that that kind of first degree murder if it was done in

premeditation would automatically warrant the death penalty?

S. MOKER: Yes, I believe so.

MR. KLEIN: Are any circumstances that you

can think of under which you would not recommend the death

A-7

saan sat st hs fr st — bn

penalty other than that kind of case involving a premeditated

killing of a police officer or a prison guard?

MS. MOKER: Premeditated, no, I don’t think so.

MR. KLEIN: Do you feel strongly about that?

How strongly is that belief?

MS. MOKER: Quite strong.

kK

R. 641-42. Mr. Van Poyck challenged Ms. Moker for cause

which the Court denied, R. 1131, forcing the defense to use

another peremptory challenge. R. 1131-32.

Similarly, Charles Carter evidenced a pro-death penalty

bias:

MR. DUBINER: If you found someone guilty of

premeditated first degree murder and let me even add

something else, premeditated first degree murder of a police

officer or prison guard would you think that the death penalty

would be an appropriate penalty in that case?

MR. CARTER: I think it would be the appropriate

punishment regardless of whether it was a civilian or officer.

MR. DUBINER: That’s just because it’s

premeditated?

MR. CARTER: Exactly.

MR. DUBINER: In a premeditated first degree

murder case, then you think that the appropriate punishment is

A-8

the death penalty?

MR. CARTER: Yes.

MR. DUBINER: And you feel that way in basically

all premeditated first degree murder cases. We're talking about

premeditated, not other types.

MR. CARTER: Yes.

R. 842-43. Mr. Carter was challenged for cause, which the

Court denied. R. 844. He was then struck using one of the

defendant’s peremptory challenges. R. 1207.

Ronald Nickerson demonstrated a pro-death penalty bias

and his inability to follow the Court’s instructions:

MR. KLEIN: I don’t know whether I’m

overstepping my bounds or not, but Mr. Nickerson, initially,

at least, do you have any preconceptions about what kind of a

case would deserve the death penalty?

Mr. NICKERSON: Most any kind of a premeditated

murder deserves the death penalty.

Mr. KLEIN: You say most any kind. Do you

feel so strongly about the death penalty that you think you

would vote for it, for death in any kind of case where you

found the Defendant guilty of premeditated murder?

Mr. NICKERSON: _I probably would.

* * *K *

R. 457.

A-9

THE COURT: Would you _ follow those

instructions irregardless of your personal views? Because I am

telling you, you have to follow them?

MR. NICKERSON: I, I probably would, but I did not

know for sure. I would have to hear all of the evidence.

* Kk K

R. 458-59. The Court denied the defendant’s for cause

challenges to Mr. Nickerson, R. 460, and Mr. Van Poyck used

yet another peremptory challenge to strike him. R. 1283.

Similarly, Derek Miller demonstrated an unacceptable

pro-death penalty bias:

THE COURT: Okay, would you agree, sir, that

it is a fair statement that capital punishment or the death penalty

is not an appropriate sentence in all first degree murder cases,

that it depends on the case?

MR. MILLER: Right. The thing, if a person is

without a doubt proven guilty, you know, for a rape or murder,

[ believe, you know, death ought to be the sentence.

THE COURT: In every case no matter what?

MR. MILLER: Without a doubt, yes, if it’s

proved without a doubt.

x KK

R. 628-69.

MR. KLEIN: Mr. Miller, you told us before

A-10

that you would consider yourself strongly in favor of the death

penalty, capital punishment?

MR. MILLER: Yes, sir.

MR. KLEIN: That is a recently-held belief or

have you felt that way before?

MR. MILLER: I felt that way a long time. Feel

more strongly about it because of the prison overcrowding, the

taxpayers’ money, you know, you know, going to house and

feed those--

x kK *

R. 632.

MR. KLEIN: Would you feel that same way if

you were to know that the alternative to the death penalty that

a person should spend the rest of his life in prison, you as a

taxpayer would have to house and feed him for the rest of his

natural life, would you, would you feel hesitant to give a life

recommendation under those circumstances?

MR. MILLER: Yes.

xk * * *

R. 634. The Court denied the defendant’s challenges for cause,

R. 636, and a peremptory challenge was later used. R. 1206.

George Farmer showed both a pro-death penalty bias

and a presumption that Mr. Van Poyck was guilty:

MR. KLEIN: Are there some mitigating

A-11

circumstances under those circumstances that could convince

you to bring back a recommendation of life?

MR. FARMER: As opposed to the death penalty?

MR. KLEIN: Yes.

MR. FARMER: Yes, I think I would so long as

you did not plan to do it, then a murder ended up happening.

[ mean, you plan to escape and all this stuff and you have this

big plan all made up. And if somebody gets killed, it’s okay;

if somebody did not get it, killed, it’s okay to then, that would

mean you really did not plan ahead to kill somebody.

MR. KLEIN: Okay. What about --

MR. FARMER: Make sense?

MR. KLEIN: Yeah, it does, actually. What

about if the case, how do you feel if the case involved the death

of a prison guard, police officer, you feel the same way?

MR. FARMER: No, I guess I would have to

change my mind on that.

MR. KLEIN: Okay. Why would that be?

MR. FARMER: Because these guys are trying to

do a service to society and they are trying to be protected as

well as they would be.

MR. KLEIN: Okay. Well, how would you feel,

generally, about somebody if you knew they intentionally killed

a police officer or a prison guard?

A-12

MR. FARMER: I would have to bring the death

penalty.

* * Kk *

R. 659-61.

MR. KLEIN: From, as a result of what you

have heard or heard around you, on TV about this case, you

feel that Mr. Van Poyck is guilty as he sits here?

MR. FARMER: You know, I do not know what

evidence you’re going to bring in both directions.

MR. KLEIN: From what you have read?

MR. FARMER: From what I’ve read, this man is

accused of this crime.

MR. KLEIN: Well, from what you read and

what you think he’s probably guilty?

MR. FARMER: Okay, yeah, I think he is probably

guilty.

* kK kX *

R.662-63. The Court denied the defendant’s challenge for

cause, R. 665, and Mr. Van Poyck was forced to use yet

another peremptory challenge. R. 1354.

Finally, Frank Aldridge demonstrated a presumption of

Mr. Van Poyck’s guilt, which he “hoped” he could put aside.

Yet he expected Mr. Van Poyck to present evidence of his

innocence:

A-13

THE COURT: What you read in the paper, did

it really stick with you, I mean or did you breeze through it?

MR. ALDRIDGE: I read it in the paper Monday

morning because I was coming to jury duty, it stuck in my

mind.

THE COURT: That’s a recapitulation or where

they go back?

MR. ALDRIDGE: Uh-huh.

THE COURT: Could you disregard what you’ve

read in that article Monday and base the verdict solely on what

you hear in the courtroom and the instructions of the law that

I would give you?

MR. ALDRIDGE: _I don’t know.

THE COURT: Have you formed an opinion as to

the person’s guilt or innocence based on that article in the

paper? Obviously, we want a jury to find a person guilty or not

guilty based on what they hear in the courtroom. not on what

you read in the paper. Could you do that?

MR. ALDRIDGE: _I understand that, but possibly I

have formed an opinion.

* kK kK *

R. 696-97.

MR. KLEIN: Mr. Aldridge, as a result of what

you have read, have you formed any opinion, at all, about this

case or about Mr. Van Poyck?

A-14

MR. ALDRIDGE: _ Based on the facts presented in the

newspaper, my opinion is that the defendant is guilty.

MR. KLEIN: Okay. Based upon what you read,

would you have, would you, before you could bring back a

verdict of not guilty would you ask for evidence, would you ask

for us as defense to present evidence to persuade you

otherwise?

MR. ALDRIDGE: Yes, certainly.

MR. KLEIN: Would you have a difficult time

finding Mr. Van Poyck not guilty unless you heard some

evidence from the defense to convince you that he was innocent

in view of what you have heard?

MR. ALDRIDGE: _ Yes, in view of what I have read,

yes.

THE COURT: Mr. Aldridge, let me ask you

something. If I instructed you under the law of our country,

that under the constitution Mr. Van Poyck as he sits here right

at this moment is presumed innocent and that presumption stays

with him until the time the state presents evidence sufficient for

you to find him guilty beyond a reasonable doubt, would you

be able to follow instructions?

MR. ALDRIDGE: _ I would hope that I could.

* Kk kK

R. 703-04.

THE COURT: Would you be able to follow that

if you were a juror and not form an opinion or fix in your mind

A-15

a verdict until you have heard all the evidence in the

courtroom?

MR. ALDRIDGE: _ I would hope that I could.

* * kK

THE COURT: Also, under our system the

defendant in any criminal case is not required to testify nor

present evidence. The reason for that is that the burden of

proof in a criminal case is on the state, not on the defense.

Would you agree with that?

MR. ALDRIDGE: Yes.

THE COURT: Would you be able to do that even

if you read the papers?

MR. ALDRIDGE: _ I would hope that I could.

* * *K *

R. 705. The Court denied Mr. Van Poyck’s motion to strike

Mr. Aldridge for cause, R. 706, and Mr. Van Poyck used a

peremptory challenge to prevent him from sitting. R 1132.’

” Mr. Aldridge’s comments were similar to those in Huber v. State,

669 So.2d 1079, 1081 (Fla. 4th DCA 996), where a potential juror said he

could not presume the defendant innocent but then recanted that statement.

The Court held that the juror did not show the required impartiality: “[w]hen

a juror Admits that he ‘probably’ would be prejudiced but says he ‘probably’

could follow the Judge’s instructions, it is error for the trial judge to refuse to

dismiss him for cause.” Id, at 1081; see also Jones v. State, 660 So.2d 291,

292 (Fla. 2d DCA 1995). Here, Mr. Aldridge made virtually

undistinguishable comments and should have also been struck for cause.

A-16

Finally, Mary Bradford was challenged for cause, which

challenge was denied. R. 871, 873. As a result, this

objectionable juror actually sat on Mr. Van Poyck’s jury. Had

Mr. Van Poyck received the additional peremptories he should

have received, he would have struck this objectionable juror

Although most of the jurors discussed above eventually

said they would follow the Court’s instructions, such responses

did not render them unobjectionable; the equivocal nature of

their responses as a whole raised a reasonable doubt as to thei

impartiality. In fact, defense counsel Michael Dubiner moved

to strike the entire panel based on death qualification. R. 1368

69. This motion was denied. The trial court thus erred in n

triking the jurors for cause

The Trial Court Improperly Denied The

Defendant An Additional Peremptory Challenge.

After exhausting his peremptory challenges, most of

hem on jurors who should have been struck for cause, Mr

Van Poyck moved to strike Goldie Moody for cause, which the

Court denied. R. 1360. Mr. Van Poyck’s trial counsel then

asked the Court for an additional peremptory challenge so he

could strike Ms. Moody. R. 1363. The Court said that it

would only grant an additional peremptory challenge if Mr

Van Poyck waived one of his other rights - - the right to

onduct voir dire on a juror the court wanted to disqualify “for

cause.”

MR. DUBINER Do we get the additiona!

peremptory ?

THE COURT I am going to make a bargain with

that the Appellate Court won’t like if it ever gets up there

| will go along with that, if that guy Chase gets up there, he

roes for cause. That’s the guy in the methadone program

MR. KLEIN: We cannot agree until we examine

him. Other than the fact he’s on methadone --

THE COURT: That guy has not been in here ten

minutes. He has been in and out of the revolving doors.

| am going to bump him if he gets

om - x =x

MR. KLEIN We cannot live with the court’s

opinion. Mr. Chase, I think is his name, going in and out of

the court, we will excuse him for cause at that point. We

cannot live with that. We’d just as soon withdraw our motion

for extra peremptories at this point rather than have Mr. Chase

summarily removed for cause.

x x*xK =

A defendant has a right to conduct individual voir dire

of a juror that is being struck for cause. O’Connell v. Stat

480 So.2d 1284, 1286-87 (Fla. 1985): canteens. Bum.

667 So.2d 765, 768 (Fla. 1996); Hernandez v. State, 621 So.2d

1353 (Fla. 1993); Green v. State, 575 So.2d 796 (Fla. 4th DCA

1991). In O’Connell, the trial court struck a juror for cause

and d denied defense counsel’s objection that he had had no

opportunity to first examine the juror. The Supreme Court

cited Florida Rule of Criminal Procedure 3.300(b), which

allows both sides to examine prospective jurors orally. It then

recognized that “there may be situations where the tria! court

is justified in curtailing voir dire, [and where] it has

considerable discretion in determining the extent of counsel’s

examination of prospective jurors.” 480 So.2d at 1286

(internal quotations and citations omitted). However, the trial

court’s decision in O’Connell could not be viewed as an

“exercise of control of reasonably repetitious and argumentative

voir dire questioning.” Jd. (internal quotations and citations

omitted). The court thus erred, requiring a new trial.

Similarly in Green, supra, the trial court had struck two

jurors who expressed doubt about their ability to be impartial.

The Court of Appeals held that the trial court erred in striking

the jurors without permitting defense counsel to question them

because its decision could not be categorized as the

discretionary avoidance of repetitive or argumentative voir dire.

575 So.2d at 797.

Here, the trial court refused to allow the defense to

conduct voir dire of Mr. Chase, whom it said it intended to

strike for cause, by conditioning the defendant’s request for

additional peremptory challenges on his waiver of his right to

conduct voir dire of another juror before he was struck. This

was error: as in O’Connell and Green, the trial court’s refusal

to allow any questioning cannot be considered an exercise of

the court’s discretion to control repetitive or argumentative

questioning. Mr. Van Poyck’s trial counsel had not posed any

questions to Mr. Chase and was told he would not be allowed

to do so. Thus, by conditioning the requested additional

peremptory challenges, which was Mr. Van Poyck’s right, on

his waiver of another right, the trial court effectively denied the

additional peremptory challenge. As a result, at least two

objectionable jurors, Goldie Moody and Mary Bradford,*

* Although Mr. Van Poyck did not specifically ask for an

additional peremptory challenge to use on Ms. Bradford, the

court’s prior denial of his challenge to her for cause and the

A-19

actually sat on Mr. Van Poyck’s jury. Thus, all the elements

of reversible error was present in this case. The only

remaining issue is ow that reversible error was presented by

appellate counsel.

B. Appellate Counsel’s Performance Constituted

Ineffective Assistance Of Counsel

In order to prove ineffective assistance of appellate

counsel, Mr. Van Poyck must demonstrate “(1) specific errors

Or omissions which show that appellate counsel’s performance

deviated from the norm or fell outside the range of

professionally acceptable performance; and (2) the deficiencies

of that performance compromised the appellate process to such

a degree as to undermine confidence in the fairness and

correctness of the appellate result.” Williamson v. Dugger,

651 So.2d 84, 86 (Fla. 1994), cert. denied, 116 S.Ct. 146

(1995), quoting Johnson v. Wainwright, 463 So.2d 207 (Fla

1984). While appellate counsel is not required to raise every

conceivable argument on appeal, he must present errors “which

worked some detriment to the defendant or violated any of his

substantive or prodecural rights.” Johnson, 463 So.2d at 211

l. Appellate Counsel’s Performance Was Deficient

Here, appellate counsel rendered ineffective assistance

in a very specific, and egregious manner: he jdentified the

wrong jurors and then compounded the error by failing to

adequately argue the issue in any depth, with any discussion,

analysis or citations to any relevant authority. As a result this

Court on direct appeal rejected the argument, specifically

because the jurors who were identified (i.e., the wrong jurors)

subsequently had been struck “for personal reasons.”

court’s proposed “deal” would have made it a futile request

A-20

In the direct appeal, counsel’s brief claimed that denials

of “for cause” challenges to two jurors were erroneously

denied. The argument regarding the improper denial of

challenges for cause consisted of one sentence:: “In two

instances, Brousette [sic] (R. 812-825) and Abefarmis (R. 741-

750), denial of the defendant’s motions to strike for cause was

error.” (Direct Appeal Brief, App. 1, p. 58). Appellate

counsel provided no argument or discussion on this issue, no

legal authority relevant to the issue and pointed to no

objectionable juror who was permitted to sit on Mr. Van

Poyck’s jury.

Instead, appellate counsel referenced two jurors who,

although unsuccessfully challenged for cause, were later

excused by the Court for personal reasons. This erroneously

implied that Mr. Van Poyck did not have to use any of his

peremptory challenges on those jurors and they did not sit on

his jury. They therefore did not support the argument.

Following the filing of the initial brief, appellate

counsel’s colleague filed a notice of intent to rely on additional

authority, App. 2, which cited, among others, a few cases

discussing the erroneous denial of for cause challenges and

requests for additional peremptory challenges. This notice did

not indicate which arguments any of the cited cases supported

or any discussion of the cases and their applicability. This

obviously did not cure the problem with the wrong

identification -- and did not cure the previous lack of argument

either. See Wilson v. Wainwright, 474 So.2d 1162, 1164 (Fla.

1985) (descriptive listing of cases without application to facts

of case was deficient).

Unlike the “inventive and highly technical” argument

involved in Johnson, the argument in this case was obvious

from the Record and straightforward. Indeed, its merit was

A-2]

recognized by the trial court even as it committed error -- it

recognized that its “bargain” was something the Appellate

Court “won’t like.” R. 1364. The trial court’s reticence was

well-founded-- the argument was based on recent, controlling

case law, including Hill, 477 So.2d 553 (Fla. 1985) and

O'Connell, 480 So 2d 1284 (Fla. 1985), both of which had

decided well before the direct appeal. See State v. Stacey, 482

So.2d 1350, 1351 (Fla. 1985) (counsel was ineffective in failing

to research and raise case law showing clear constitutional error

based on existing authority)

Finally, the issue of impartial jury selection is one of

paramount importance and cannot be ignored. In Wilson, 474

So.2d at 1163-64, the Court found appellate counsel deficient

for failing to raise the sufficiency of the evidence for the jury’s

finding of premeditation and cursorily arguing the

appropriateness of the death penalty, both of which it found

were fundamental issues. The issue of the jury’s impartiality

and errors in the jury selection phase cannot be considered any

less important than the issues deficiently raised (or not raised

at all) in Wilson. ”

2. Appellate Counsel’s Deficient Performance

Prejudiced The Defendant.

Appellate counsel’s deficient performance clearly

prejudiced Mr. Van Poyck and undermines any confidence in

the appellate process, thus requiring that the writ be granted.

* Nor can Appellate counsel’s failure to adequately and

correctly present this claim be considered tactical: counsel

attempted to raise the error, but did so with no analysis and,

worse yet, named the wrong jurors. His failure to raise this issue

adequately must be found to fall below the norm of acceptable

representation.

A.27

As a direct result of appellate counsel’s deficient performance

Mr. Van Poyck was deprived of the new trial and new penalty

phase which he would have received on direct appeal had

counsel’s performance not been deficient. Van Poyck was

denied a trial by a fair and impartial jury and absent appellate

counsel’s inexplicable failure to properly brief this issue Mr.

Van Poyck would have received the new trial to which he was

entitled. Certainly this Court cannot countenance an important

appellate issue, in a capital case, which consisted of one

sentence, devoid of supporting case law, and which named the

wrong jurors. The naming of the wrong jurors alone resulted,

inevitably, in rejection of the argument by this Court:

“[w]le note, that although the pro-death jurors

should have been excused for cause, the trial

judge subsequently excused them for personal

reasons. Consequently, Van Poyck was not

required to exercise any peremptory challenges

with regard to those jurors and that issue s

moot.” Van Poyck v. State, 564 So.2d 1066,

1071 (Fla. 1990).

It is telling that the Court found that the two jurors

named in the direct appeal should have been struck for cause.

Le. reversal was not required only because they were

subsequently struck for “personal reasons.” ‘The yoir dire

responses of the jurors who should have been named are

virtually indistinguishable in content from those two named

jurors, or jurors this Court held should have been struck in the

cases cited above; this leads to the inescapable conclusion that,

had the correct_jurors been named, and had any kind of

coherent argument been made, this Court would have found

error in the trial court’s denial of any number of Mr. Van

Poyck’s “for cause” challenges and in denial of additional

peremptory challenges. This undermines any confidence in the

A-23

appellate process and mandates either a new trial (as to those

jurors who expressed a belief in Mr. Van Poyck’s guilt: Busto,

Farmer and Aldridge) or sentencing hearing (as to those jurors

who were biased towards the death penalty: Busto, Moker,

Carter, Nickerson, Miller and Farmer). “ The trial court’s

error in refusing to grant a challenge for cause can never be

harmless error. Hill, 477 So.2d at 556

See Reilly v. State, 557 So.2d 1365, 1367 (Fla. 1990);

Huber, 669 So.2d at 1083 (new trial ordered when jurors not

struck who presumed defendant guilty). See, e.g., Hill, 477 So

2d at 556 (new sentencing hearing where jurors not struck who

evidenced unacceptable pro death penalty bias)

A-24

APPENDIX B

IN THE SUPREME COURT OF FLORIDA

WILLIAM VAN POYCK.

Petitioner,

Case No. 89.870

HARRY K. SINGLETARY. JR.

Respondent.

PETITIONER’S MOTION FOR REHEARING AND/OR

CLARIFICATION

This Court properly condemned trial court’s

deal as improper but failed to properly apply

it to the Petitioner’s habeas corpus appeal.

This Court held that Van Poyck’s challenge as to one of

the two (2) challenged jurors who actually sat on his jury “was

not preserved for direct appeal.....because Van Poyck’s trial

counsel did not identify her as a venireperson whom he wanted

to excuse through an additional peremptory challenge.” Slip

opinion at page 3, footnote 3. The Court was apparently

referring to juror Bradford. However, the court has

overlooked the fact that when trial counsel identified juror

Moody and requested an additional peremptory, the trial court

refused that request and then countered with its improper and

unorthodox offer of as “deal.” The trial court made it clear

that any additional peremptories were contingent upon defense

counsel accepting this “deal.” This Court properly condemned

this deal as improper, Slip opinion at page 1, footnote 2.

However, the Court has overlooked the fact that once defense

counsel rejected this “deal” it was clear that it was futile to

continue naming objectional jurors.

The trial court made it clear that it would only grant

additional peremptories if counsel accepted the deal. This

improper counteroffer suffocated further inquiry and debate by

Petitioner’s trial counsel. Counsel made it clear that such a

deal was unacceptable, and this Court agreed that it was

improper. Under such circumstances, defense counsel should

not be required to continue the debate where it is apparently

futile. By unsuccessfully challenging juror Bradford for cause,

Van Poyck had adequately identified her as “objectionable.”

It was clear that no further peremptories would be granted

unless defense counsel agreed to the improper “deal,” and since

defense counsel refused the deal, there remained nothing more

B-2

for him to do. Any waiver or procedural default was clearly

invited and created by the trial court’s injection of this “deal”

into the equation.

In holding that there was no ineffectiveness of appellate

counsel, this Court did not individually analyze the two (2)

prongs of Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052 (1984). This Court merely concluded that “we find that

Van Poyck’s appellate counsel did not render ineffective

assistance for failing to pursue and argue Van Poyck’s claim

that the other seven venirepersons were biased or prejudiced.”

Slip opinion at page 6. Left unanswered is whether this Court

is holding that appellate counsel’s omissions and deficiencies

did not rise to the level of constituting a substantial deficiency

or of failing outside the range of professionally acceptable

performance (the first prong of Strickland); or, whether this

Court is holding that counsel’s performance was deficient but

that Van Poyck has failed to demonstrate prejudice flowing

therefrom (the second prong of Strickland). Petitioner

respectfully moves for clarification of this holding.

In order to hold that none of the challenged jurors were

biased or objectionable, this Court took the highly unusual step

of revisiting Van Poyck’s direct appeal decision from 1990, and

“reexamining the record.” The Court reversed its unanimous

1990 holding that jurors Abufaris and Bruschi were clearly

biased on objectional, and in an about face, declared that they

were unbiased and unobjectionable. Apparently this was

necessary because the responses of the seven (7) challenged

jurors in the habeas petition were virtually identical to, or even

more egregious than the responses of jurors Abufaris and

Bruschi, whom the court had already declared, in 1990, were

clearly_ biased and should have been excused for cause.

Besides the clear violation of the “law of the case” doctrine by

the majority, as already set forth in the dissenting opinion at

B-3

page 13, Van. Poyck submits that this Court has clearly

violated one of the most settled principles of the standard of

review for ineffective assistance of counsel. Strickland v.

Washington, supra, clearly and repeatedly teaches that in

evaluating a claim of ineffective assistance courts must “avoid

the distorting effect of hindsight.” Rather,

a court deciding an actual

ineffectiveness claim must judge

the reasonableness of counsel’s

challenged conduct on the facts

of the particular case, viewed as

466 U.S. at 690 (emphasis added). In Kimmelman v.

Morris, 477 U.S. 365, 381, 106 S.Ct. 1574, 2586 (1986), the

Court reiterated that

The reasonableness of counsel’s

performance is to be evaluated

from counsel’s perspective at the

time of the alleged error. .....

Thus, in evaluating this claim, this Court must take the

perspective of 1990, not 1998. Van Poyck is entitled to have

the underlying claim reviewed under the standard that existed

in 1990. Had counsel properly briefed this issue in 1989-1990,

then this Court, in 1990, would have found error and would

have granted Van Poyck a new trial and/or new sentencing

hearing. This is known because in 1990 this Court

unanimously held that jurors Abufaris and Bruschi were clearly

biased, objectionable, and should have been struck for cause.

The other challenged jurors, not brief on direct appeal, gave

identical or ever worse responses. Clearly, in 1990, this Court

would have also found that these jurors should have been struck

B-4

for cause. It is only now, in 1990, under a new standard, that

this Court now reaches a contrary result. However, had Van

Poyck received the effective assistance of counsel to which he

was entitled in 1990, the result would have been different.

Thus, this Court is employing “the distorting effect of

hindsight” forbidden by Strickland.

In order to prevail under his claim of ineffective

assistance of counsel, Van Poyck’s burden is to establish that

there is “a reasonable probability” that the outcome would have

been different had the issue been briefed on appeal in 1990.

Strickland, supra, at 694, 104 S. Ct. at 2068. “A reasonable

probability is a probability sufficient to undermine confidence

in the outcome.” Id. See Groover v. Singletary, 656 So.2d 424

(Fla. 1995) (The question is “whether the deficiency in

performance compromised the appellate process to such a

degree as to undermine confidence in the correctness of the

result.”) ; Johnson v. State, 593 So.2d 206, 209 (Fla. 1992) (A

defendant must show a reasonable probability that, absent the

deficient performance, the outcome would have been different.

In Agan v. Singletary, 12 F.3d, 1012 at 1018 (11th Cir. 1993),

the Court described the standard thusly:

This “reasonable probability” of

a different result is simply a

probability sufficient to

undermine confidence in the

outcome of the case; a standard

less than proof by _a

(Emphasis added).

In order to prevail on his claim Van Poyck is only

required to demonstrate that there is a reasonable probability

that, had this issue been properly briefed in 1990, the outcome

B-5

have been different. This “ourt’s opinion is totally

icking in the proper ineffective counsel analysis (which is the

claim before the Court) and instead treats this case as if the

underlying claim is before this Court on direct appeal. This is

iot the correct standard Van Poyck submits that under

1 sj L. : ; L. ’ all . _ '

ry y ie C mrp r c rm 1 qT? YT : t+ r." try > "

Strickland iit ila C tik uragen and iS entitied to a DE

Ah

‘

‘

Palm Beach County ¢

u

APPENDIX C

ik CIRCUIT COURT OF THE FIFTEE?D

JUDICIAL CIRCUIT,

CRIMINAL DIVISION

D FOR PALM BEACH COUNTY, FLORI

+}

UT Lil

West Palm Beach, Florida

i uesday, November 1. 1998

. ming

DALAL ILY

it 1:3U O CLOCK

THE COURT

iS. BRADFORD

You can step outside, sir.

(Whereupon, Mr. Engle left the

jury room.)

No motion from the State

Nothing from the Defense

518, Mary Bradford

Have a seat, ma am, how are you

doing today?

All right, thank you.

We're here, ma’am, on the case

entitled State of Florida versus

Van Poyck. This is Mr. Van

Poyck. This is Mr. Klein, that’s

Mr. Dubiner. The State is

represented by Mr. Geesey and

Miss Skiles.Ma’am, do the names

Van Poyck, Valdez or O’Brien

mean anything to have you read

or heard anything in the news

media concerning an incident

where allegedly two people went

to the doctor’s office in West

Palm Beach and attempted to

remove a third person from

custody and in the process a guard

died?

I think I remember hearing

something like that

THE COURT

MS. BRADFORD:

THE COURT

MS. ENGLE

THE COURT

MS. BRADFORD

THE COURT

Obviously, didn’t stick with you

in great detail if it did?

I cannot really -- just something

that’s familiar

Nothing that would cause you to

have any preconceived notions

thoughts about a trial?

I don’t think so

Would you agree that if a person

is tried for a crime in this country

that should be tried and either

found guilty or not guilty based on

the evidence received in the court

of law and on the instructions of

the law to the jury, not on what

you hear from a news media

source?

Yeah.

Ma’am, if a person is convictec

of first degree murder, there could

be a second hearing. At that

hearing a jury would hear

aggravating and mitigating

circumstances and the instruction

on the law as to what those mean

The jury would then take a vote

and recommend a penalty to the

judge. The recommendation

would either be for life in pri

MS

THE

ao

MS

THI

ENGLI

COURT

BRADFORD

COURT

or death. The recommendation is

one which carries very great

weight, but the Court is the one

that imposes the penalty.

If you were asked to tell your

view on the death penalty, would

you classify yourself as strongly

in favor, strongly against, middle

of the road or never thought about

it much?

I don’t know what you mean by

middle of the road. But I fee!

there are some circumstances that

a person should be required to

give their life for it.

Would you say then there are

some that were and the

requirement depends on the

circumstances?

Yes.

Okay, would you agree, ma’am,

there could be a set of

circumstances where you could

hear the trial if the person is found

guilty of first degree murder, that

you then go to the penalty phase

and heard that evidence, the

instructions on the law, and you,

personally, could say from

everything I have heard it sounds

like I should recommend a penalty

C-4

of death. Could you personally

do that as one of12 jurors making

a recommendation?

MS. BRADFORD Yes

THE COURT Would you agree that you also

could make a recommendation of

life in prison?

MS. BRADFORD: Yes

THE COURT Okay, Mr. Geesey

MR. GEESEY Ma’am, from your answers there

is a little bit of hesitation there,

but do you feel you could in the

appropriate case recommend that

a person be put to death?

MS. BRADFORD: Yes. It would be difficult, but |

would have to definitely conside1

consider it, but, yes

MR.GEESEY You believe that you could

that?

MS. BRADFORD: (Nods in the affirmative

MR. GEESE | think you agree it would

not be fair to a Defendant if a jury

were to recommend death in every

case, right, that goes without

saying?

MR.

MAS

* T)

VLR

GEESEY:

S. BRADFORD:

BRADFORD:

GEESEY

BRADFORD:

GEESEY:

BRADFORD:

GEESEY

It would not be fair to a Defendant

if a jury were going to

recommend death in each and

every case of first degree murder.

Do you agree with that?

Yes.

And do you also agree it would

not be fair to the State of Florida

if a jury were going to

recommend life in each and every

first degree murder case?

Ye: :

Okay. So, what we’re asking is

for you to make a decision, make

a recommendation to this Court

based upon the law and based

upon the facts of this particular

case?

Yes

You believe you could do that?

Yes

Okay, hypothetically, if the case

involves a killing, intentional

killing of a law enforcement

officer, could you set aside your

personal feelings and make a

recommendation to the Court

C-6

MS. BRADFORD:

MR. GEESEY

MS. BRADFORD

MR. GEESEY

THE COURT

MR. DUBINER:

MS. BRADFORD:

MR. DUBINER

MS. BRADFORD

MR. DUBINER

based upon the law the judge

gives you?

Yes.

Regarding anything that you have

heard about this case, if anything

comes back to you, you could put

that out of your mind and again

reach a decision based upon the

evidence presented at trial and to

that evidence alone?

That’s my responsibility, yes

Okay, thank you, ma’am

Mr. Dubiner?

If I could ask you a «

questions

Uh-huh.

Have you thought much about t

death penalty?

Are there certain types of cases

that you have thought about where

you think the death penalty would

be appropriate most times or all

of the time?

MS. BRADFORD

MR. DUBINER

MS. BRADFORD

ier aineneiniiain

DUBINER

Yes

Could you tell us those types of

cases?

Where there was complete -- it’s

hard to express myself right now

You can calm down

Just real lack of concern fo:

human life

You have heard the tern

premeditated?

>

Yes

Have you thought about

premeditated killing where

somebody kills with

premeditation, what you think

about the death penalty in regards

to that?

I think that one of the things that,

that I feel that is that the death

penalty is there for.

Okay. Do you think that if

premeditation was proven beyond

a reasonable doubt that you would

vote for the death penalty in every

case where there was

premeditation proven?

MS. BRADFORD:

MR. DUBINER

lTHE COURT

MS. BRADFORD

CHE COURT:

MS. BRADFORD:

THE COURT:

MS. BRADFORD:

Yes, I guess.

Okay, I don’t have anything

further, thank you.

Ma’am, do you agree that if you

were On a Case as a juror and

premeditated murder was proven

and the person was found guilty

of that, that you would follow the

instructions on the law and listen

to the evidence on the aggravating

and mitigating circumstances and

base your recommendation on that

evidence and those instructions

rather than just a blanket saying

of death?

Yes, yes

Don’t believe that every

premeditated murder case

automatically means it’s a death

recommendation?

That’s, that’s, you know, would

be my number one concern is to

follow the law and what, what you

Said.

Thank you.

I hope I appropriately answered

that question

AA tL)

VETS

RAG

va

;*

DUBINER

COUR]

DUBINER

DUBINER

BRADFORD

We just want to know that you

feel yourself. You cannot say

anything wrong. There is no right

or wrong answer

I would like to follow up just with

a couple of questions or two

All right

In terms of premeditation if that

is proven beyond a reasonable

doubt, what, what are your

feelings with regards to that, the

death penalty and premeditation?

Certainly, I want to find out.

I guess I am not understanding

your question real well. I guess

what I said, real disregard for

human life.

If that is shown do you feel that

if a disregard for human life is

shown, do you think that the death

penalty is always appropriate in

that type of case? I know I’m

putting you on the spot.

I guess what I am thinking, |

would have to know more about

what the case was, but, you know,

to me a real blatant disregard for

human life is, is to me, you

know, worth the death penalty.

C-10

MR. DUBINER I don’t have anything further

THE COURT You can step outside, ma’am

Thank you

(Whereupon, Miss Bradford left

the jury room.)

THE COURT Any motion by the State or the

Defense?

MR. GEESEY: None from the State.

MR. DUBINER: We would move to challenge her

for cause, Judge.

THE COURT: Denied.

THE CLERK: 515, Marianne. Botka

THE COURT: Hi, Miss Botka, how are you

today”?

MS. MOODY Yes

MR. GEESEY: Thank you very much.

MR. KLEIN: Miss Moody, as a result of what

you have heard about this case in

the past, have you formed any

impressions about who shot the

prison guard or why?

MS. MOODY: I am trying to be honest and

remember back, if it’s even the -

C-1]

MR. KLEIN:

MS. MOODY

MR. KLEIN

MS. MOODY:

MR. KLEIN:

\A

a

MR. KLEIN:

MOODY

frankly, nowadays you read so

much about, you know, I am

trying to think about it.

Tell me what you are

remembering?

What I am thinking, this might be

is where someone was taken to a

doctor or something and then they

got out and the guard was killed.

I think that may be the case.

That’s the one I have in mind,

anyway.

I think we’re talking about the

Same case.

So, I do remember it vaguely.

From what you read or heard, do

you recollect anything about why

the guard was shot or how he was

shot or by whom he was shot?

I thought from what I am thinking

back now, that he was shot

because he would not give his gun

away or would not give up, that

the prisoner shot him because he

would not give his, he would not,

the guard would not let him go or

something like that.

Okay. Have you formed any

C-12

MS. MOODY:

MR. KLEIN:

MS. MOODY:

MR. KLEIN:

MISS MOODY

MR. KLEIN:

MISS MOODY:

MR. KLEIN:

MS. MOODY:

MR. KLEIN:

MS. MOODY:

impressions, at all, about Mr. Van

Poyck here, his name mean

anything to you?

The name means nothing.

Do you have any idea which one

of the people?

No, I do not, no. He could have

been either one of them.

Did you read the paper this

morning, the local paper?

Not this morning.

Miss Moody, is there any kind of

particular case, at all, that you

think would, think warrants the

death penalty in every case, in

every circumstance?.

In every case and every

circumstance?

[ mean is there any particular type

of case?

If he were found guilty you mean?

Uh-huh.

There are some cases I would

assume they would, yes.

C-13

would not automatically

ecommend a sentence of death in

ery first degree murder

y

1) /

Would you automatically

ommend a sentence of deat!

very first degree murder ca

where the person is convicted

premeditated first degree

. - ——

sntional killing

‘

’ ’ ring na IO COT

IPaliny’ and ayeta

kay. Is there, would you

suming for a second the pri

guard was shot and killed, w

lu automatically vote fo

ntence of death because

nN

AA

' '

Wri

p K |

lk

D

would not either without

| guess what I am asking, are you

so shocked by that that it would

move you no matter what you

heard in the case what arrgavating

circumstances you may hear?

ion t think I would

lank vu

Whereupon

R. PALMER Long drive

COURT Ali right, Mr. Palmer, do I know

you; do you know me?

IN THE CIRCUIT COURT OF THE

FIFTEENTH JUDICIAL CIRCUIT, CRIMINAL DIVISIO?

IN AND FOR PALM BEACH COUNTY, FLORIDA

STATE OF FLORIDA,

VS CASE NO 87-6736 C}

} 1

j

WILLIAM VAN POYCK.

Defendant

VOLUME \

JURY TRIAI

BEFORE THE HONORABLE MICHA

Room 315

Palm Beach County Courthouse

West Palm Beach, Florida

Monday, October 31, 1988

Beginning at 1:35 o’clock, p.m

MOODY

MS. MOODY

[ read about it originally when it

happened The names mean

nothing.

That was a while back

Uh-huh

Did anything you read stick with

you to the extent that you would

say you would be unable to sit on

the jury in this case and render a

verdict on this case based solely

on the evidence you hear in the

courtroom and the instructions of

Nothing really sticks with you

}

you read then

No. It was a terrible thing but |

not Know

Safe to say you have not

prejudged anybody as being guilty

or not guilty for it and you would

wait to judge them until you hear

all of the evidence?

| , L ’ 1 om of « . -—

All right, in this case if a person

.

¥

TH

A

~

|

i

COURT

MOOT! )y

is convicted of first degree

murder, ma’am, they can receive

one or two sentences, either life

or death. And what happends in

the second part of the trial, the

jury hears aggravating

circumstances or evidence and

mitigating. | What that means.

and then they make a

recommendation, they vote a

recommendation to me of either

death, life in prison, and I impose

the sentence.

The recommendation is something

[ would strongly consider.

However, would you say you aré

lor the death penalty, against th

death penalty or neutral?

if they are guilty, I am fo1

Absolutely?

If they are guilty, ye

Let me ask you this. Would you

follow the instructions on the law

I give you if those instructions on

the law say that the mitigating

circumstances are such you should

recommend life, would you do

that?

Ye

PHI

COURT

MOODY

COURT

MOODY

GEESE}

Then the opposite, if you heard

the evidence and the instructions

on the law said aggravating

circumstances, or such you should

recommend death, would you do

that?

Yes

In other words, you do not feel

you would do one automatically

or the other automatically, you

would listen to all of the

instructions on the law?

Uh-huh.

Ma’am, would you be fair t¢

sides then?

Yes

‘Cause it would not be fair to the

State if the jury recommended life

in every case. It would not be fair

to the Defendant if the jury

recommended death in every cas¢

That wouldn’t be right, would it?

No, it would not, but I would

expect that, in other words, I am

listening to the judge and the

evidence.

[hat’s what you would make yo

instructions and the evidence

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