Ruffin v. State, 62631

• Decision Date: 29 September 1982
• Docket Number: No. 62631,62631
• Citation: 420 So.2d 591
• Parties: Mack RUFFIN, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 591

420 So.2d 591

Mack RUFFIN, Jr., Appellant, v. STATE of Florida, Appellee.

No. 62631.

Supreme Court of Florida.

Sept. 29, 1982.

David Rubman, Bartow, and Asa D. Sokolow, Renee J. Roberts, Edward S. Kornreich and Elizabeth Shollenberger, New York City, for appellant.

Jim Smith, Atty. Gen., and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Mack C. Ruffin appeals an order of the trial court denying his motions to vacate his judgment and sentence of death, for the appointment of an investigator and a psychiatrist, and for stay of execution. We affirm the thorough, well-reasoned order of the trial court entered by Circuit Judge John Booth, and we deny the motion for stay of execution.

Ruffin was convicted and sentenced to death for the first-degree murder of Karol Hurst who was twenty-one years old and seven months pregnant at the time she was murdered. She had been abducted by Ruffin and his accomplice Freddie Hall from a Pantry Pride grocery store parking lot and had been driven in her automobile to a secluded wooded area where Ruffin and Hall sexually abused her. She was pistol whipped on her neck, head, shoulder and body; was robbed of her pocketbook, wallet and checkbook; and was shot to death with a .38 caliber pistol in the back of the head while lying face down on the ground.

Ruffin appealed his convictions for first-degree murder and sexual battery and his sentence of death. This Court affirmed his convictions and death sentence. Ruffin v. State, 397 So.2d 277 (Fla.1981). The Supreme Court of the United States denied certiorari. Ruffin v. Florida, 454 U.S. 882, 102 S.Ct. 368, 70 L.Ed.2d 194 (1981).

In June 1982, Ruffin filed motions to vacate his judgment and his death sentence, for the appointment of an investigator and psychiatrist and for discovery, and for stay of execution. On September 9, 1982, the governor signed a death warrant for the execution of Ruffin for the week of October 1-8, execution being set for October 6. After hearing, the trial court, in a detailed and explicit order addressing each of the points raised, denied Ruffin's motions.

The majority of the issues raised by Ruffin in his motion to vacate were issues raised and addressed in his direct appeal to this Court or which could have been raised in his first appeal and therefore are matters which will not support a collateral attack. Adams v. State, 380 So.2d 423 (Fla.1980); Sullivan v. State, 372 So.2d 938 (Fla.1979).

The remaining issues include, among others, Ruffin's assertion that he received ineffective assistance of counsel during the sentencing phase of his trial by his counsel's failure to call certain witnesses at the sentencing hearing. After an evidentiary hearing, the trial court, in its order denying postconviction relief, explained:

Defendant's next issue is the ineffective assistance of counsel at the sentencing hearing. The particular deficiency that Defendant points to is his trial counsel's failure to call certain witnesses.

At the hearing on September 15, 1982, the Attorneys who represented Ruffin in his trial, William Stone and Michael Kovack, were present on subpoena. The Defense was offered the opportunity to examine the trial attorneys as to why the decision to not call witnesses in the sentencing phase was made and the Defense declined to do so. This was at 11:15 A.M. and the Court then recessed until 2:00 P.M. to allow the Defense the opportunity to take the depositions of the trial counsel. Mr. Stone and Mr. Kovack were available for depositions between 11:15 A.M. and 2:00 P.M. At the resumption of the hearing at 2:00 P.M., the Defense announced that it had not interviewed the trial attorneys and did not intend to do so. The Court recessed at 2:15 P.M. to allow the Defense the opportunity to reconsider its position and to place the available live testimony of ineffective assistance of counsel before the Court. At 2:40 P.M., this Court reconvened. The Defense stated that it had conversed with Mr. Stone and Mr. Kovack and elected not to and declined to place any testimony including Defendant's before this Court on this issue. The Defense stated this would violate the attorney-client privilege. The State suggested that Ruffin himself state on the record that this failure to call direct testimony was his decision. Defendant's Attorney objected to this procedure and this Court did not force Ruffin's direct statement.

The Defense's position is that the simple existence of the fact that the trial attorneys did not call live witnesses in phase two of the trial, demonstrates ineffectiveness in and of itself. This Court does not believe that this is the law of the State of Florida.

A somewhat analogous situation existed in Songer v. State, No. 59,852 decided by the Florida Supreme Court on September 9, 1982 on a review of a denial of a Fla.R.Crim.Pro. 3.850 Motion. The issue was whether it was error on the part of trial counsel not to present an involuntary defense of intoxication. Justice James C. Adkins, Jr., speaking on behalf of the Court, stated:

Appellee responds, and we agree, that appellant's trial counsel avoided such testimony for tactical reasons, obviously did not believe that a voluntary intoxication defense would be effective, and probably feared the type of information which might be disclosed on cross-examination of the suggested witnesses. We will not use hindsight to second guess counsel's strategy, and so long as it was reasonably effective based on the totality of the circumstances, which it was, it cannot be faulted. See Meeks v. State, 382 So.2d 673 (Fla.1980). That the strategy did not prove successful, from appellant's point of view, does not mean that the representation was inadequate.

Admittedly, trial counsel was called to testify in the Songer case, but at the hearing in this Case Defendant's attorney declined to call Defendant's trial attorneys to the witness stand and make inquiry as to the reasons for their trial strategy or tactics even though they were present, available and willing to so testify.

In this case mitigating factors about Defendant's background were presented via the Court ordered psychiatric report with no live testimony being taken. That method has the tactical benefit of precluding cross-examination of any potential live witnesses just as mentioned above in Songer v. State, supra.

In Meeks v. State, Florida Law Weekly Volume F No. 24, June 18, 1982, at page 281 [Case No. 59,958 (Fla. June 17, 1982) ] the Florida Supreme Court affirmed the denial of a 3.850 motion. Similarly to this case, trial counsel who was allegedly ineffective was present and the defense declined to call him to explain his decisions at trial. The Court quoted the trial court:

Tactics and strategy of counsel at trial, just as tactics and strategy of counsel at the instant evidentiary hearing, are areas that the trial judge could frequently be tempted to question. The Court attempts to refrain from doing so lest it usurp counsel's role.

The undersigned finds that the failure of Defendant's Attorney at this hearing to place Defendant's trial counsel on the stand to testify were his trial tactics and strategy and accordingly will refrain from questioning or usurping counsel's role.

In addition, the undersigned finds that the Defense's bare allegations of ineffectiveness based on failure to call witnesses does not rise to the level of showing required by Knight v. State, 394 So.2d 997 (Fla.1981), and Mauldin v. State, 382 So.2d 844 (Fla. 1st DCA 1980).

The undersigned has served as a trial judge for sixteen and one-half years, three as County Judge of Lake County and the past thirteen and one-half years as Circuit Judge of this Circuit primarily in Citrus, Sumter and Hernando Counties. During that time, Mr. William Stone, in his capacity as Assistant Public Defender in Sumter County and as privately retained counsel, and Mr. Michael Kovack, in his capacity as Assistant Public Defender in Citrus County and as privately retained counsel, have practiced before the undersigned extensively and have in all cases provided effective and competent representation when appointed by the Court; further that each...