Asay v. Moore, SC01-2371.

• Decision Date: 13 June 2002
• Docket Number: No. SC01-2371.,SC01-2371.
• Citation: 828 So.2d 985
• Parties: Mark James ASAY, Petitioner, v. Michael W. MOORE, Respondent.
• Court: Florida Supreme Court

828 So.2d 985

Mark James ASAY, Petitioner, v. Michael W. MOORE, Respondent.

No. SC01-2371.

Supreme Court of Florida.

June 13, 2002.

Rehearing Denied October 4, 2002.

Michael P. Reiter, Capital Collateral Regional Counsel—Northern Region, and Heidi E. Brewer, Assistant Capital Collateral Regional Counsel—Northern Region, Tallahassee, Fl, for Petitioner.

Robert A. Butterworth, Attorney General, and Curtis M. French, Assistant Attorney General, Tallahassee, Fl, for Respondent.

PER CURIAM.

Mark James Asay petitions this Court for writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. For the reasons that follow we deny habeas relief.

BACKGROUND

Asay was convicted and sentenced to death for the July 17, 1987, murders of Robert Lee Booker and Robert McDowell. See Asay v. State, 580 So.2d 610 (Fla. 1991). The facts of this crime are provided in detail in the case on direct appeal. See id. at 610-12.

The jury found Asay guilty of the murders of both Booker and McDowell and recommended sentences of death for both murders. See id. at 612. After concluding that the aggravating circumstances surrounding the crime¹ outweighed the mitigating circumstances,² the trial court imposed the death penalty for each of the murder convictions. See id. We affirmed the convictions and sentences on direct appeal. See id. at 614.³

Asay filed his first motion for postconviction relief in the trial court on March 16, 1993. On November 24, 1993, Asay filed an amended motion raising twenty claims.⁴ In addition, on March 30, 1993, Asay filed a motion to disqualify the trial judge from presiding over the postconviction proceedings, primarily on the basis of comments that the judge made during Asay's 1988 trial. See Asay v. State, 769 So.2d 974, 978 (Fla.2000). The trial judge denied the motion to disqualify. See id. After holding a Huff⁵ hearing, the trial court summarily denied many of Asay's claims,⁶ but the court held an evidentiary hearing regarding Asay's ineffective assistance of trial counsel claims. See id. Following the evidentiary hearing, the trial court denied relief on these claims as well. See id. On appeal of the trial court's denial of Asay's 3.850 motion, Asay raised six issues and various subclaims. See id. at 978-89.⁷ This Court denied all claims and affirmed the trial court's denial of postconviction relief. See id. at 989.

Asay now files this petition for writ of habeas corpus, raising multiple issues.⁸

ABSENCE FROM PROCEEDINGS

Asay first argues, relying on Francis v. State, 413 So.2d 1175 (Fla.1982), that appellate counsel was ineffective for failing to raise on appeal Asay's right to be present during critical stages of the jury selection. Asay's specific claim is that his trial counsel did not confer with him before the final acceptance of the jury panel.⁹

We have held that "[c]riminal defendants have a due process right to be physically present in all critical stages of trial, including the examination of prospective jurors." Muhammad v. State, 782 So.2d 343, 351 (Fla.2001). However, we find no merit in the assertion that appellate counsel was deficient in failing to raise an alleged violation of Asay's right to be present during jury selection as an issue on appeal.

First, unlike the defendant in Francis, Asay was present in the courtroom for the entire process of jury selection. Further, the record in this case affirmatively indicates that trial counsel consulted with Asay immediately before and during the first bench conference. Although the record in this case does not affirmatively reflect whether counsel conferred with Asay during the second set of challenges, there is no indication from the record that Asay was "prevented or limited in any way from consulting with his counsel concerning the exercise of juror challenges." Gibson v. State, 661 So.2d 288, 291 (Fla.1995). Accordingly, Asay's first claim of a constitutional violation during jury selection lacks merit, and appellate counsel cannot be deemed ineffective for failing to raise nonmeritorious claims on appeal. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla. 2000).

CONSTITUTIONALITY OF DEATH SENTENCE

Asay's second issue encompasses a variety of subclaims relating to the trial court's alleged refusal to allow Asay to present mitigating evidence and failure to consider mitigation established by the evidence. We address each of the subclaims in turn. First, Asay claims that he was denied the opportunity to present mitigation witnesses when the trial court denied Asay's pro se motion to continue the penalty phase for a week to obtain additional mitigation. This Court summarily rejected the same argument on direct appeal. See Asay, 580 So.2d at 612 n. 1. Subsequently, this Court affirmed the trial court's summary denial of this claim in Asay's 3.850 motion, stating "it is inappropriate to use a different argument to relitigate the same issue." Asay, 769 So.2d at 989. Because this issue was actually raised on appeal, this claim is procedurally barred. See Downs v. Moore, 801 So.2d 906, 909 (Fla.2001).

Asay next argues that the trial court incorrectly stated the definition of mitigation when it said during voir dire: "[M]itigating factors mean factors that mitigate the seriousness of it, or counts as some sort of excuse or justification for the act." (Emphasis supplied.) Because no objection was raised at trial, appellate counsel may be deemed ineffective for failing to raise the claim only if the trial court's erroneous definition was fundamental error. See Bertolotti v. Dugger, 514 So.2d 1095, 1097 (Fla.1987). Here, the trial court's statement during voir dire does not amount to fundamental error. We agree that mitigation evidence is not limited to evidence that provides justification or excuse for the act. See Eddings v. Oklahoma, 455 U.S. 104, 113, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). Assuming this comment could be construed to limit the type of mitigation evidence that the jury should consider, this comment was isolated and was not repeated. No error is asserted in the trial court's instructions to the jury before deliberations. See Franqui v. State, 804 So.2d 1185, 1193 (Fla.2001) (holding that although the trial court's comment during voir dire that the law required jurors to recommend a death sentence if the aggravating circumstances outweighed the mitigating circumstances was a misstatement of the law, the defendant was not prejudiced because the trial court did not repeat the misstatement of law when instructing the jury prior to its deliberations). Accordingly, we conclude that any misstatement in voir dire did not amount to fundamental error, and thus, appellate counsel cannot be deemed ineffective for failing to raise this issue on appeal. See Bertolotti, 514 So.2d at 1097.

Asay further argues that the trial court limited Asay from presenting evidence regarding the effect that intoxication may have had on the victims. This claim is insufficiently pled as Asay fails to phrase the argument as ineffective assistance of appellate counsel. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000) ("The defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based."). To the extent Asay seeks a second appeal on the merits, the claim is procedurally barred. See id. at 1070.

Asay next argues that appellate counsel was ineffective for failing to raise the trial court's alleged error in refusing to consider mitigation evidence presented to the trial court after the jury gave its sentencing recommendation. The record reveals that during discussions regarding a date for sentencing, the trial court stated that it would not consider any additional matters regarding sentencing. Subsequently, at the sentencing hearing, after hearing argument from the defense and testimony from Asay's mother, the trial court immediately, without recess, sentenced Asay to death. No objection was raised to this procedure. Asay asserts that the trial court's previous statements that it would not consider any additional matters, and the trial court's action of immediately rendering its decision after the defense and Asay's mother addressed the court at sentencing, indicate that the judge did not consider anything additionally presented on behalf of Asay at that hearing.

Although the trial court's immediate sentencing may have been contrary to the procedural requirements of Spencer v. State, 615 So.2d 688, 690-91 (Fla.1993), this Court decided Spencer five years after Asay's trial and two years after this Court's decision on direct appeal. This Court has stated that Spencer is prospective only. See Layman v. State, 652 So.2d 373, 375 n. 5 (Fla.1995). Thus, we conclude that appellate counsel was not ineffective for failing to raise this issue on appeal. We further conclude that no prejudice has been shown on this issue because the comments of trial counsel and Asay's mother, even if construed as mitigating in nature, do not undermine our confidence in the death sentence imposed.

Asay further argues that the trial court's failure to find and weigh the existence of mitigation established by the evidence constituted fundamental error,¹⁰ and that appellate counsel's failure to raise this claim on appeal constituted ineffective assistance of counsel. The mitigation presented during the penalty phase that Asay asserts the trial court failed to consider is summarized by Asay in his petition as follows:

[T]hat he was affectionate toward and protective of his family, that he assisted his family financially, that he had been gainfully employed prior to this offense, that he was good with and kind to children, that he remodeled his mother's house for her, that he helped with fellow inmates in the jail to the point of giving them the clothes off his back, that he had rehabilitation potential, that he received his GED while in prison, and that he was under the

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