Clark v. State, 66859

Decision Date12 April 1985
Docket NumberNo. 66859,66859
Parties10 Fla. L. Weekly 225 Raymond Robert CLARK, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Neal R. Lewis, Richard Hersch and Patrice Talisman, Miami, for appellant.

Jim Smith, Atty. Gen., and Michael J. Kotler and Frank Migliore, Jr., Asst. Attys. Gen., Tampa, for appellee.

ALDERMAN, Justice.

Raymond Robert Clark appeals the denial of his second Florida Rule of Criminal Procedure 3.850 motion to vacate. We find no error and affirm the trial court's order denying his motions to vacate and for stay of execution.

Having formulated a plan to kidnap someone from a bank and to demand money from that person, Clark drove to several bank parking lots in search of a victim. He abducted a forty-nine-year-old businessman, drove to a secluded area, ordered the victim out of his car at gunpoint, ordered him to write a check payable to cash in the amount of five thousand dollars, led the victim into the bushes, made the victim kneel down, and shot him twice in the head. Subsequent to the murder, Clark made threatening phone calls to the victim's son and demanded money for the victim's safe return.

He was convicted of first-degree murder, kidnapping, and extortion, and was sentenced to death. His convictions and death sentence were affirmed on appeal. Clark v. State, 379 So.2d 97 (Fla.1979). On appeal, among other issues, Clark contended that the trial court erred at trial in refusing to allow him a confidential psychiatric expert. We held that the court did not err in denying his request under the circumstances and stated:

Although refusing to move for a sanity inquisition and to comply with the requirements of Florida Rule of Criminal Procedure 3.210, Clark requested that the court appoint a particular psychologist to examine Clark and to test him to determine whether a possible defense of not guilty by reason of insanity exists and to make his report confidential and solely to Clark's counsel for his determination of whether or not to make sanity an issue at trial. By his motion, Clark was attempting to circumvent Florida Rule of Criminal Procedure 3.210.

379 So.2d at 103 (emphasis added). Rule 3.210 provided the procedure whereby a defendant could have access to a competent psychiatrist.

Relative to Clark's claim that he was entitled to have a psychiatrist appointed at sentencing, we held:

Clark now claims that he was entitled to have a psychiatrist appointed to assist him in establishing the mitigating circumstances of commission of the murder while under extreme mental or emotional disturbance. A review of the record, however, reveals that no such request was made to the trial court, and the trial court was never given an opportunity to rule on whether Clark was entitled to a psychiatrist to assist him in the determination of mitigating circumstances. The motion for appointment of a psychiatrist only requested that a certain psychologist be appointed to examine Clark to determine if a possible defense of not guilty by reason of insanity was available to him.

379 So.2d at 104. We also found to be without merit Clark's claim that he was restricted in his presentation of mitigating factors. Clark then sought certiorari review in the Supreme Court of the United States which denied his petition. Clark v. Florida, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 371 (1981).

Clark subsequently filed a motion to vacate in the trial court, alleging primarily that he did not receive effective assistance of counsel. This argument encompassed claims relating to the development of mitigating factors and the appointment of an independent confidential expert. After hearing on the motion, the trial court held, among other things, that the evidence received at the hearing on this motion indicated that Clark was quite competent to stand trial and further gave no signs to his attorney of any potential insanity defense. As to Clark's allegation that his trial counsel failed to seek the appointment of a psychiatrist for the sentencing stage of the trial, the court held that there was nothing in the record that would suggest that such an expert would have been of any benefit to Clark. 460 So.2d at 888. We affirmed the trial court's conclusions relative to Clark's ineffective assistance of trial counsel. Clark v. State, 460 So.2d 886 (Fla.1984). Clark also alleged that with the adoption of Florida Rule of Criminal Procedure 3.216, effective July 1, 1980, there had been a change in the law sufficient to meet the test of Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct 796, 66 L.Ed.2d 612 (1980). Rule 3.216(a) provides:

When in any criminal case counsel for a defendant adjudged to be indigent or partially indigent, whether public defender or court appointed, shall have reason to believe that the defendant may be incompetent to stand trial or that he may have been insane at the time of the offense, he may so inform the court who shall appoint one expert to examine the defendant in order to assist his attorney in the preparation of his defense. Such expert shall report only to the attorney for the defendant and matters related to the expert shall be deemed to fall under the lawyer-client privilege.

We disagreed and held that this rule change did not constitute a fundamental constitutional change in the law as contemplated by our decision in Witt.

On March 13, 1985, the Governor of the State of Florida signed a warrant for the execution of Clark. His execution is scheduled for Tuesday, April 16, 1985.

Thereafter, Clark filed another motion to vacate in the trial court. He again alleged a change in the law, the change being Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and that the trial court limited the presentation and consideration of mitigating factors.

After considering the pleadings and having heard the oral arguments of counsel, the trial court denied the motion to vacate and denied the motion for stay. The trial court gave its reasons for denial, as follows:

Assuming under the Ake decision that it's retroactive to the date that Clark was tried and made his request, I don't think there was a substantial showing or substantial...

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  • State v. Touchet
    • United States
    • Louisiana Supreme Court
    • September 6, 1994
    ...that an indigent defendant's threshold showing of need proceed ex parte. Wall v. State, 289 Ark. 570, 715 S.W.2d 208 (1986); Clark v. State, 467 So.2d 699 (Fla.1985); People v. Loyer, 169 Mich.App. 105, 425 N.W.2d 714 (1988), appeal denied, 432 Mich. 900, 438 N.W.2d 248 (1989); Washington v......
  • Ex parte Moody
    • United States
    • Alabama Supreme Court
    • April 19, 1996
    ...§ 16-3-26(C) (Supp.1992); and Tenn.Code Ann. § 40-14-207(b) (1991).2 Wall v. State, 289 Ark. 570, 715 S.W.2d 208 (1986); Clark v. State, 467 So.2d 699 (Fla.1985); Brooks v. State, 259 Ga. 562, 385 S.E.2d 81 (1989), cert. denied, 494 U.S. 1018, 110 S.Ct. 1323, 108 L.Ed.2d 498 (1990); Arnold ......
  • Clark v. Dugger
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • December 15, 1987
    ...Florida signed Clark's death warrant. Clark then filed a second Rule 3.850 motion which the Florida courts again denied. See Clark v. State, 467 So.2d 699 (Fla.1985). On April 12, 1985, Clark filed this 28 U.S.C. Sec. 2254 petition for a writ of habeas corpus with the United States District......
  • Clark v. Dugger, 89-3065
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • May 3, 1990
    ...cause to appeal before being entitled to do so."). Supreme Court affirmed. Clark v. State, 460 So.2d 886 (Fla.1984); Clark v. State, 467 So.2d 699 (Fla.1985). Clark's first federal habeas petition was denied by the district court, and this court affirmed. Clark v. Dugger, 834 F.2d 1561 (11t......
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