Adams v. State, 74092

Decision Date03 May 1989
Docket NumberNo. 74092,74092
Parties14 Fla. L. Weekly 235 Aubrey Dennis ADAMS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Larry Helm Spalding, Capital Collateral Representative and Billy H. Nolas, Staff Atty., Office of the Capital Collateral Representative, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen. and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Aubrey Dennis Adams, a state prisoner under sentence and warrant of death, moves this Court for a stay of execution and appeals a circuit court order that refused to vacate the judgment and sentence. We have jurisdiction. Art. V, § 3(b)(1), Fla.Const.

Adams was convicted in 1978 of the murder of an eight-year-old girl. The judgment and sentence of death were affirmed in Adams v. State, 412 So.2d 850 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 182, 74 L.Ed.2d 148 (1982). In our opinion we pointed out that Adams described how the crime was committed.

In his written statements, the defendant stated that he saw the victim walking home from school about a block and a half from her house and offered to give her a ride home. She got in the car and defendant drove away with her. The defendant remembered "being stopped somewhere and she was screaming and I put my hand over her mouth", and she quit breathing. In his oral statement the defendant said he had removed the clothes from the victim and used some cord which he carried in his car to tie her up so that she would fit into plastic bags. He also said that he tried to have sexual relations with her, but couldn't bring himself to do it. He denied having sexual relations with her.

Id. at 851. When a death warrant was signed in 1984, Adams filed a motion to vacate judgment and sentence in the trial court. This motion was denied, and this Court affirmed. Adams v. State, 456 So.2d 888 (Fla.1984). Adams petitioned the United States District Court for a writ of habeas corpus. The petition was denied. The Eleventh Circuit Court of Appeals stayed the execution but ultimately denied relief. Adams v. Wainwright, 764 F.2d 1356 (11th Cir.1985), cert. denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986).

A second death warrant was signed in February 1986. Adams' petition for a writ of habeas corpus was denied. Adams v. Wainwright, 484 So.2d 1211 (Fla.1986). A few days after the United States Supreme Court denied Adams' petition for a stay of execution, Adams v. Wainwright, 475 U.S. 1041, 106 S.Ct. 1254, 89 L.Ed.2d 362 (1986), Adams again moved the trial court to vacate the judgment and sentence. Again the trial court denied relief and again this Court affirmed. Adams v. State, 484 So.2d 1216 (Fla.), cert. denied, 475 U.S. 1103, 106 S.Ct. 1506, 89 L.Ed.2d 906 (1986). Adams then petitioned the United States District Court for habeas corpus, and again was denied, but the Eleventh Circuit Court of Appeals granted a stay and eventually granted relief. Adams v. Wainwright, 804 F.2d 1526 (11th Cir.1986), modified on denial of rehearing, 816 F.2d 1493 (11th Cir.1987). However, the Supreme Court of the United States reversed the judgment of the court of appeals. Dugger v. Adams, 489 U.S. 401, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989).

Thereafter, a fourth 1 death warrant was signed. Adams again moved the trial court to vacate judgment and sentence and to stay the execution. The trial court denied the motion without an evidentiary hearing. Adams filed his notice of appeal to this Court on April 28, 1989, and filed a motion to stay execution on May 1, 1989. Because Adams' execution was scheduled for May 2, 1989, we stayed the execution for forty-eight hours in order to give the matter proper consideration.

Adams raises four points in his motion for postconviction relief. He first contends that he is entitled to a new sentencing proceeding under the rationale of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), which held that the judge and jury must not be led to believe that nonstatutory mitigating evidence cannot be considered in capital sentencing. Adams asserts that at his original sentencing proceeding which was held on October 12, 1978, his counsel felt constrained in their ability to introduce nonstatutory mitigating evidence. 2 He alleges that had counsel not been so constrained, they would have been in a position to introduce further nonstatutory mitigating evidence bearing on his mental condition.

In denying this claim, the trial court first ruled that the claim was procedurally barred by the provisions of Florida Rule of Criminal Procedure 3.850. This rule provides that all motions for postconviction relief should be filed within two years after the judgment and sentence become final unless

it alleges (1) the facts upon which the claim is predicated were unknown to the movant or his attorney and could not have been ascertained by the exercise of due diligence, or, (2) the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.

This Court has previously held that the holding of the United States Supreme Court in Hitchcock constituted a significant change in the law as to permit contentions based upon its rationale to be raised more than two years after defendant's judgment and sentence became final. Hall v. State, 541 So.2d 1125 (Fla.1989). The state, however, points out that the United States Supreme Court issued its opinion in Hitchcock on April 22, 1987, and Adams' motion for postconviction relief was filed on April 26, 1989, which was more than two years after the "change of law" announced by the United States Supreme Court. The state argues, with some logic, that the rule should be construed to mean that a defendant must raise any contentions based upon new facts or a significant change in the law within two years of the time such facts become known or such change was announced. This interpretation of the rule is consistent with its purpose to require a timely adjudication of legitimate claims, and we hereby adopt it for all motions filed after June 30, 1989. However, because the rule does not specifically state that motions for postconviction relief based upon changes in the law must be made within two years from the date of such change, we are unwilling to penalize Adams for failing to make his motion within the two-year period. 3 Hence, we will address his contention on the merits.

Unlike a number of cases recently before this Court, this case does not present a pure Hitchcock claim in which either (1) efforts to introduce nonstatutory mitigating evidence were thwarted or (2) both the judge and the jury were under the impression that nonstatutory mitigating evidence could not be considered. Here, Adams did, in fact, introduce without objection some nonstatutory mitigating evidence at his trial, including testimony by his mother concerning the emotional problems that he had as a child because of being large for his age and some learning problems that he had in school. Reverend Smith also testified that as Adams grew up, other children ridiculed him because of his size. Reverend Smith further said that Adams had a loving relationship with his father and mother, never got into any trouble, and attended church regularly. Others testified that he had been a reliable worker as a correctional officer and one witness even characterized him as happy-go-lucky.

At the time of Adams' original sentencing proceedings, the standard jury instructions included a charge which had the effect of limiting the jury's consideration to the statutory aggravating and mitigating circumstances. However, defense counsel in this case requested a special instruction which would explain that the jury was not limited to consideration of the statutory mitigating circumstances. Apparently, the trial judge at first indicated that he would not give the requested instruction. Following the prosecutor's closing argument, however, he then made the following observation:

THE COURT: All right. For the record, now, Mr. Oldham, I've changed my mind. I'm going to give the Defendant's special requested Jury Instruction Number Two, and the reason I'm doing that is that in your closing argument you made reference to, that the only mitigating circumstances they can give reference to, and you listed them. I do not believe that this is the law in this State. The instructions say you may consider--so, just to be completely fair to the Defendant, I have changed my mind and for the record purposes I'm going to give the Penalty Number Two. Do you object?

MR. OLDHAM: I have no objection, your Honor.

As a consequence, after outlining the statutory aggravating and mitigating circumstances to be considered, the court further instructed the jury:

The aggravating circumstances which you may consider are limited to those upon which I've just instructed you. However, there is no such limitation upon the mitigating factors you may consider.

While disclaiming any independent recollection, after studying the record of the trial, the judge at the hearing on the current motion stated:

I believe that it was a correct instruction at that time, at least it was the best instruction that I had before me with the defense counsel not even asking some other instruction to be given, when I said the aggravating circumstances which you may consider are limited with those from which I have instructed you; however there is no such limitations upon mitigating factors that you may consider.

That instruction was given by me to specifically clear up any doubts in any juror's mind that they may have had specifically, telling them that they were not limited to statutory limitations in this considering mitigating circumstances.

I was the sentencing judge in this case, and I considered all of the evidence, of all mitigating circumstances, everything that was contained in the case as...

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