Alvord v. State, 57810
| Decision Date | 09 April 1981 |
| Docket Number | No. 57810,57810 |
| Citation | 396 So.2d 184 |
| Parties | Gary Eldon ALVORD, a/k/a Paul Robert Brock, a/k/a Gary Eldon Venczel, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
William J. Sheppard, Jacksonville, Stephen D. Stitt, Gainesville, Jack Greenberg, New York City, and Anthony G. Amsterdam, Stanford, Cal., for appellant.
Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
This is an appeal by the appellant, Gary Eldon Alvord, from a denial of post-conviction relief. Alvord was convicted in 1974 of three counts of first-degree murder for the strangulation of three women.
This is the third time this cause has been before this Court for review. An abbreviated chronology of the judicial proceedings is as follows.
The appellant was convicted of the murder charges on April 9, 1974. On September 17, 1975, this Court affirmed those convictions in its decision reported in Alvord v. State, 322 So.2d 533 (Fla.1975). Appellant thereupon sought review by certiorari to the United States Supreme Court, which was denied on July 6, 1976. Alvord v. Florida, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226, rehearing denied, 429 U.S. 874, 97 S.Ct. 195, 50 L.Ed.2d 157 (1976).
In his first collateral attack upon this conviction, appellant filed a motion for reduction of sentence under Florida Rule of Criminal Procedure 3.800(b) on November 29, 1976. The trial court denied the motion, finding it was without jurisdiction. Appellant then sought review of this action by petition for writ of mandamus, which was denied by this Court in an unreported order on March 10, 1977.
The instant case arises from a second collateral attack upon the convictions, commenced on October 6, 1978, by filing a motion for post-conviction relief under the provisions of Florida Rule of Criminal Procedure 3.850, to which two supplements were filed. Consideration was delayed by these supplements and by appellant's pro se motion that his counsel withdraw. Appellant contends in his motion that:
(1) The trial court failed to respond to appellant's pro se request to have the public defender removed as counsel and have private counsel appointed.
(2) Trial counsel was incompetent because he did not file a notice of intent to claim insanity as a defense.
(3) The trial court erred by failing to instruct the jury on its own initiative that appellant had a past history of mental illness, had previously been adjudicated insane, and should be presumed insane until such presumption was overcome by proof beyond every reasonable doubt.
(4) Counsel on the initial appeal was incompetent for failing to raise the following issues: (a) whether the trial court erred in setting aside its order sending appellant to a state institution for observation to determine his sanity; (b) whether the trial court erred in allowing Dr. Ames Robey to examine defendant and testify regarding defendant's mental condition; and (c) whether the trial court erred in allowing Dr. Robey to testify regarding defendant's past criminal history during the sentencing phase.
(5) He was denied an adequate psychiatric examination on the question of his sanity on the date of the offenses.
(6) The interrogation of appellant by a Michigan detective was contrary to the principles set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because the detective neglected to read appellant the warnings as printed on the police form and failed to have appellant execute a written waiver of his constitutional rights.
(7) The death penalty has been administered and applied in a manner inconsistent with the principles in State v. Dixon, 283 So.2d 1 (Fla.1973), and Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).
(8) The death penalty in Florida has been and is being applied pursuant to a practice which discriminates on the grounds of sex and poverty.
(9) Prosecutors and courts employ the death sentence as a penalty for the exercise of a defendant's right to a jury trial by a regular and uniform practice of declining to seek or impose the death sentence when the defendant pleads guilty although those cases are factually indistinguishable from those in which the defendant pleads not guilty and is sentenced to death after a jury trial.
(10) The imposition of the death sentence in this case is cruel and unusual because of all the relevant facts, including appellant's lengthy history of mental illness.
(11) Section 921.141, Florida Statutes (1973), is a matter of judicial practice and procedure and consequently violates article V, section 2(a), of the Florida Constitution.
(12) The death penalty is unconstitutional as applied to appellant because it is administered arbitrarily and discriminatorily to punish the killing of white persons as opposed to black persons.
(13) It was error for the trial court to fail to excuse for cause a venireman who indicated he felt everyone convicted of first-degree murder should receive the death penalty. The venireman was later excused peremptorily by appellant.
(14) The death sentence was imposed although none of the aggravating circumstances found to support the death sentence were alleged in the indictment and none were found to exist beyond a reasonable doubt.
(15) The consideration of mitigating circumstances was impermissibly restricted by the trial judge, contrary to the standards of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).
After an evidentiary hearing and a clearly exhaustive review of the record, the trial judge denied this petition for post-conviction relief. The trial judge recognized that the principal assertion was directed to the competency and effectiveness of counsel at both trial and appellate levels. In his extensive order, the trial judge made the following specific findings:
(T)he Defendant had committed an offense in 1967 in the State of Michigan involving the kidnapping and rape of a young girl. He was tried before the Court without a jury and on the 12th day of May, 1970 was found not guilty of those offenses by reason of insanity and he was committed to the Michigan Department of Mental Health. He escaped from the Ionia State Hospital in Michigan on January 24th, 1973, came to Florida, and on June 17th, 1973 committed the three murders for which he was subsequently convicted and sentenced to death.
The Court appointed the Public Defender's Office to represent the Defendant and although he made several requests for appointment of private counsel, each of which was denied by the Court, he was ultimately represented in the trial of this cause by Thomas Meyers, an Assistant Public Defender. The Defendant did not object to Thomas Meyers, Esquire individually, but he objected to being represented by the office of the Public Defender .... This was in response to an inquiry by Mr. Meyers to determine if the Defendant objected to Mr. Meyers individually with the intention of requesting the Public Defender to appoint another Assistant to represent the Defendant if that was the basis of the Defendant's objection .... The Court had no authority to appoint anyone other than the Public Defender unless there was a conflict of interest involved. The Court even suggested to Mr. Meyers that if he felt that due to the difficulty he was encountering at that point in representing the Defendant that the Public Defender's Office could file an appropriate motion to be relieved and that the Court would consider the same. This is reflected by the portion of the transcript contained in the Defendant's appendix beginning on page 43.
Thereafter this apparent dissatisfaction with Mr. Meyers was apparently resolved as is reflected by the colloquy contained in Defendant's appendix at page 60:
"MR. MEYERS: I would state into the record that I have advised, as the attorney for the defendant, that he do cooperate with the two court-appointed psychiatrists, and that his refusal to talk with the doctors is strictly on his own initiative and not at all prompted by any advice or suggestion by me.
Is that correct, Mr. Alvord? You have come to this decision on your own not to talk with the psychiatrists(?)
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