Armstrong v. State, 61871

• Citation: 429 So.2d 287
• Decision Date: 20 January 1983
• Docket Number: No. 61871,61871
• Parties: Sampson ARMSTRONG, Appellant, v. STATE of Florida, Appellee. Sampson ARMSTRONG, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Corrections, and Charles G. Strickland, Jr., Superintendent, Florida State Prison, Respondents.
• Court: United States State Supreme Court of Florida

Page 287

429 So.2d 287

Sampson ARMSTRONG, Appellant, v. STATE of Florida, Appellee.

Sampson ARMSTRONG, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Florida Department of

Corrections, and Charles G. Strickland, Jr.,

Superintendent, Florida State Prison, Respondents.

No. 61871.

Supreme Court of Florida.

Jan. 20, 1983.

Rehearing Denied April 28, 1983.

Robert Young, Winter Haven, and Peter Buscemi of Paul, Weiss, Rifkind, Wharton & Garrison, Washington, D.C., for appellant and petitioner.

Jim Smith, Atty. Gen. and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee and respondents.

PER CURIAM.

Sampson Armstrong appeals the denial of his motion to vacate, set aside or correct his conviction and sentence filed pursuant to Florida Rule of Criminal Procedure 3.850. Armstrong is a prisoner under sentence of death. His convictions and sentences of death were affirmed when he previously appealed them to this Court. Armstrong v. State, 399 So.2d 953 (Fla.1981). Along with his motion, appellant filed motions for an evidentiary hearing, for a continuance, for appointment and payment of experts, and for discovery. The trial court denied all of appellant's motions. We hold that an evidentiary hearing is not required and affirm the denial of relief. Armstrong has also filed a petition for habeas corpus in which he argues that he was not afforded effective assistance of counsel on his previous appeal of his convictions and sentences, and in which he argues that this Court, in deciding the appeal, fundamentally erred. We find the contentions to be without merit and deny relief.

I. Rule 3.850 Appeal.

With regard to his convictions for robbery and two counts of first-degree murder, appellant contends that they should be vacated because the court erred in denying his motion for a change of venue; because the court erred in allowing Ida Jean Shaw to testify and to be called as a court's witness; because the jury was not completely apprised of the treatment Ida Jean Shaw received in exchange for her testimony; because the jury was selected from a sample of citizens from which racial and gender-based exclusions had been made; because the court erred in failing to sever the trials of appellant and his codefendant Earl Enmund; and because the trial judge deprived appellant of due process by inhibiting defense counsel in his attempt to present an item of exculpatory evidence. All of these legal points either were or could have been presented to this Court in the initial appeal. They were all either waived at trial by the lack of objection, waived on appeal by the lack of argument here, or presented to this Court, considered, and determined. Thus all of these issues are, for one reason or another, completely foreclosed and are not subject to collateral attack. Antone v. State, 410 So.2d 157 (Fla.1982); Goode v. State, 403 So.2d 931 (Fla.1981); Alvord v. State, 396 So.2d 184 (Fla.1981); Adams v. State, 380 So.2d 423 (Fla.1980); Henry v. State, 377 So.2d 692 (Fla.1979).

With regard to his sentence of death, appellant presents numerous arguments questioning its validity. He argues that the sentencing judge considered some improper aggravating circumstances and that, with their exclusion, the sentence of death is rendered improper. He questions whether the sentencing judge found that his age of 23 at the time of the crimes was in fact a mitigating factor rendering the sentence of death improper. He argues that he was denied due process of law when his sentence of death was not accompanied by written findings of fact as required by statute and that the subsequent filing of written findings did not cure the irregularity. He argues that the trial court, in sentencing him to death, improperly considered and relied upon information other than what was developed at his trial. He argues that the procedure utilized at the sentencing portion of his trial deprived him of due process and provided an inadequate basis for the jury and judge to make their sentencing determinations. He argues that his sentence of death is inappropriate and its imposition is arbitrary and capricious in light of the established facts of the case. He argues that the court committed reversible error in failing to instruct the jury that aggravating circumstances were required to be proven beyond a reasonable doubt.

All of the above-listed contentions either could have been raised on direct appeal, were argued on appeal and determined, or were considered and determined by this Court on its own motion in discharge of its duty to review death sentences. Therefore, they are not subject to consideration by a Rule 3.850 motion. Thompson v. State, 410 So.2d 500 (Fla.1982); Ford v. State, 407 So.2d 907 (Fla.1981); Smith v. State, 400 So.2d 956 (Fla.1981); Meeks v. State, 382 So.2d 673 (Fla.1980); Sullivan v. State, 372 So.2d 938 (Fla.1979).

Appellant contends that the capital felony sentencing law in effect at the time of the trial and the instructions to the jury regarding sentencing improperly limited mitigating considerations to the circumstances listed in the statute in violation of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). This issue, like others already mentioned, could have been raised on direct appeal and therefore is not a proper subject for collateral attack of appellant's sentence. Moreover, we find that the statute applied, the jury instructions used, and the judge's deliberations on sentence all comported with the principles of Lockett. The instruction did not have the effect of telling the jurors that they were restricted to consideration of statutory mitigating circumstances. This contention, were it a proper one to consider in this proceeding, would be governed by our decision in Peek v. State, 395 So.2d 492 (Fla.), cert. denied, 451 U.S. 964, 101 S.Ct. 2036, 68 L.Ed.2d 342 (1981), in which the same argument was raised. There, we said:

Recurring to the charge given in this case, we note at the outset that it in no way restricts the jury to a consideration of the statutorily enumerated mitigating circumstances. Indeed, the instruction on mitigating circumstances, when read in conjunction with the express limitation on consideration of aggravating circumstances, advises the jury that the list of statutory mitigating factors is not exhaustive. See Songer v. State, 365 So.2d 696, 700 (Fla.1978) (on rehearing). It strikes a constitutional balance by directing, but not limiting, scrutiny to those areas of mitigation considered vital by the legislature in determining the fairness of a life or death sentence, thereby assuring that the death penalty will be applied in a consistent and rational manner. Were we to sanction an instruction which established no effective guidance for the jury in considering circumstances which may mitigate against death, we would surely breathe life into Mr. Justice Rehnquist's admonition that such a procedure would "not guide sentencing discretion but [would] totally unleash it." Lockett v. Ohio, 438 U.S. at 631, 98 S.Ct. at 2975, 57 L.Ed.2d 973 (Rehnquist, J., concurring in part and dissenting in part).

Contrary to appellant's assertion, the instruction given here is consistent with Lockett v. Ohio. Lockett holds only that a sentencing body must not be precluded from considering, as a mitigating factor, aspects of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. As noted above, our death penalty statute does not limit consideration of mitigating circumstances to those statutorily enumerated. Moreover, unlike the Ohio statute invalidated in Lockett, the mitigating circumstances in Florida's statute direct the jury's attention to many aspects of the defendant's character and the circumstances surrounding the offense. While we do not contend that the statutory mitigating circumstances encompass every element of a defendant's character or culpability, we do maintain that the factors, when coupled with the jury's ability to consider other elements in mitigation, provide a defendant in Florida with every opportunity to prove his or her entitlement to a sentence less than death.

395 So.2d at 496-97 (footnotes omitted).

Our conclusion that the jury was not restricted in its consideration of mitigating factors is buttressed by the observation that defense witness Betty Fine was permitted to testify on a broad range of matters at the sentencing trial. The witness testified not only to matters relating to statutory mitigating circumstances, but also to matters concerning appellant's background and character. In view of all the matters she was allowed to testify to, there is no support for appellant's present contention that the court's instructions discouraged defense counsel from attempting to present mitigating evidence. Indeed, judging from the scope of defense counsel's presentation at the sentencing proceeding, it appears that defense counsel correctly interpreted the capital felony sentencing law, which, as we held in Songer v. State, 365 So.2d 696 (Fla.1978) (on rehearing), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979), was not intended to restrict consideration of mitigating factors.

The only contention raised by appellant's motion that is proper for consideration by collateral attack is the argument that he received ineffective assistance of counsel at both the guilt phase and the sentencing phase of his trial. We will therefore proceed to evaluate this claim, using the principles developed in Knight v. State, 394 So.2d 997 (Fla.1981). We are aware of the different and more elaborate analysis set forth in Washington v. Strickland, 693 F.2d 1243 (5th Cir.1982), but we believe the Knight test reaches the legally and constitutionally correct result in this case.

In Knight v. State, this Court expanded upon the principles earlier developed in Meeks v. State, 382 So.2d 673 (Fla.19...