834 F.2d 1561 (11th Cir. 1987), 86-3022, Clark v. Dugger

Docket Nº:86-3022.
Citation:834 F.2d 1561
Party Name:Raymond Robert CLARK, Petitioner-Appellant, v. Richard L. DUGGER, Secretary, Florida Department of Corrections, Tom Barton, Superintendent, Florida State Prison, Robert A. Butterworth, Attorney General, State of Florida, Respondents- Appellees.
Case Date:December 15, 1987
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1561

834 F.2d 1561 (11th Cir. 1987)

Raymond Robert CLARK, Petitioner-Appellant,


Richard L. DUGGER, Secretary, Florida Department of

Corrections, Tom Barton, Superintendent, Florida

State Prison, Robert A. Butterworth,

Attorney General, State of




No. 86-3022.

United States Court of Appeals, Eleventh Circuit

December 15, 1987

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Larry H. Spalding, Director Office of Capital Collateral Representative, Mark Evan Olive, Chief Asst. Capital Collateral Representative, Tallahassee, Fla., for petitioner-appellant.

Michael J. Kotler, Peggy A. Quince, Asst. Attys. Gen., Tampa, Fla., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, VANCE and KRAVITCH, Circuit Judges.

VANCE, Circuit Judge:

Raymond Clark was convicted of first degree murder, kidnapping, and extortion by a jury in Pinellas County, Florida. Following the penalty phase of the trial, Clark was sentenced to death for the murder conviction. He also was sentenced to life imprisonment for the kidnapping conviction and 15 years imprisonment for the extortion conviction, with the sentences to run consecutively. On direct appeal the Florida Supreme Court affirmed the convictions and sentences, Clark v. State, 379 So.2d 97 (Fla.1979), and the Supreme Court denied certiorari. Clark v. Florida, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 374 (1981). Clark filed for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. After an evidentiary hearing, his Rule 3.850 motion was denied. Clark appealed, but the Florida Supreme Court affirmed the lower court's decision. Clark v. State, 460 So.2d 886 (Fla.1984). On March 13, 1985, the Governor of 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 Court for the Middle District of Florida. After reviewing the record of Clark's trial and post-conviction state court proceedings, the district court denied his petition. Clark now appeals.

  1. Factual Background

    The evidence presented at trial established the following. In need of money, Clark formulated a plan to kidnap someone at a bank and demand money from that person. On April 27, 1977 Clark and Ty Johnston, a juvenile who lived with Clark, parked Clark's Chevrolet Blazer in the parking lot of a bank. The two awaited the owner of a white Cadillac. Clark was armed with a .38 caliber pistol. When David Drake, a 49-year old businessman who had been arranging a real estate closing, returned to his automobile, he was abducted by Clark. Clark got into the passenger's side of the Cadillac and ordered his victim to drive to a deserted area. After over an hour of driving, Drake was made to park in a secluded spot. He was ordered at gunpoint to get out of the vehicle. Clark then commanded Drake to disrobe to his undershorts and forced Drake to write a check on his personal account payable to cash in the amount of $5,000. Clark tied the victim's hands behind his back with wire. Clark then marched Drake into the bushes, forced him to kneel down, and shot Drake twice in the back of the head.

    After the killing, Clark and Johnston drove back into town where they attempted to cash the victim's check. They drove the Cadillac to a secluded location where they wiped it down to eliminate any fingerprints. Over the next few weeks, Clark made threatening phone calls to Drake's

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    son demanding $10,000 for his father's safe return.

  2. Issues

    Initially petitioner presented six issues for review:

    (1) whether the trial court's refusal to appoint a psychiatrist to assist the defense violated Clark's constitutional rights;

    (2) whether the court's refusal to order the jury to retire from their deliberations coerced a verdict in violation of Clark's constitutional rights;

    (3) whether Clark was denied effective cross-examination of a key witness in violation of the sixth amendment;

    (4) whether the court's refusal to grant Clark's motion for a bill of particulars in preparation for the sentencing phase denied him due process;

    (5) whether Clark was denied a proper proportionality review in violation of the eighth and fourteenth amendments; and

    (6) whether Clark was denied the effective assistance of counsel in violation of his sixth amendment rights.

    A supplemental brief filed subsequent to oral argument raised a number of other issues, only one of which we need address: 1

    (7) whether the trial court improperly restricted the consideration of nonstatutory mitigating circumstances during the penalty phase of Clark's trial.

  3. Discussion

    1. Clark's Request for a Psychiatric Expert

      Prior to trial, the defendant's counsel requested that the trial court appoint a psychiatric expert to assist her in preparing an insanity defense. At the time of Clark's trial, Florida Rule of Criminal Procedure 3.210 provided in pertinent part: 2

      (c) Insanity at Time of Offense; Appointment of Expert Witnesses. When ... the existence of insanity on the part of the defendant at the time of the alleged commission of the offense charged becomes an issue in the cause, the court may appoint one or more disinterested and qualified experts, not exceeding three, to examine the defendant.

      This rule contemplated that the expert's findings were to be made available to the court and the prosecution. In contrast, the motion filed by Clark's counsel sought the appointment of a psychiatric expert who would report confidentially to the defense. At a hearing on this motion, Clark's counsel presented no evidence or argument as to why Clark should be entitled to the appointment of a private psychiatrist. Defendant's counsel merely stated that if Clark had sufficient funds, he would have hired his own expert. On this bare assertion and counsel's refusal to make a Rule 3.210 motion, the trial court refused to appoint a psychiatric expert to assist only the defense. Clark now contends that this

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      refusal violated his rights under the sixth, eighth, and fourteenth amendments. 3

      Clark relies heavily on the recent Supreme Court decision in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Ake, the defense counsel requested a psychiatric examination to determine the defendant's sanity at the time of the offense. The trial court denied this request, reasoning that the State had no constitutional duty to provide such an examination. The Supreme Court reversed:

      We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.

      Id. at 83, 105 S.Ct. at 1097. Clark argues that applying the Ake strictures yields the conclusion that his constitutional rights were abridged through the trial court's failure to grant Clark's motion for a psychiatric expert to assist his counsel.

      Petitioner reads Ake too broadly. The Supreme Court was clear that the constitutional duty to provide psychiatric assistance arose "when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial." Id. at 74, 105 S.Ct. at 1092. The Supreme Court recognized that the appointment of a psychiatrist was not necessary in most cases; rather, only in those instances where a defendant makes a preliminary showing that a psychiatrist's participation may be significant to the outcome of the trial is the government's interests in its fisc overcome. Id. at 83, 105 S.Ct. at 1097. As the Supreme Court stated in Ake:

      A defendant's mental condition is not necessarily at issue in every criminal proceeding, however, and it is unlikely that psychiatric assistance ... would be of probable value in cases where it is not. The risk of error from denial of such assistance, as well as its probable value, are most predictably at their height when the defendant's mental condition is seriously in question. When the defendant is able to make an ex parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense, the need for the assistance of a psychiatrist is readily apparent.

      Id. at 82-83, 105 S.Ct. at 1096-97.

      Clark's counsel failed to make the threshold showing necessary to mandate the assistance of a psychiatrist. Since defendant's counsel presented no evidence or argument as to why Clark's sanity was relevant to his defense, the trial court had no reason to grant this request for a psychiatric examination. 4 Clark had not exhibited behavior which would have led the trial judge or counsel to question his sanity. 5 Although Clark's counsel had information concerning a prior homicide in California that might have raised the insanity issue, this information was never brought to the trial court's attention. Defendant's counsel elected for sound tactical considerations not to pursue an insanity defense or a straight Rule 3.210 motion. 6 Faced with an

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      unsupported motion for the assistance of a psychiatrist, the trial judge was under no constitutional duty to grant Clark's request for a psychiatric expert to report confidentially to his counsel.

      Clark's contentions are virtually identical to those of the...

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