Asay v. State

• Decision Date: 29 June 2000
• Docket Number: No. SC90963.,SC90963.
• Citation: 769 So.2d 974
• Parties: Marc James ASAY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

769 So.2d 974

Marc James ASAY, Appellant, v. STATE of Florida, Appellee.

No. SC90963.

Supreme Court of Florida.

June 29, 2000.

As Modified on Denial of Rehearing October 26, 2000.

Gregory C. Smith, Capital Collateral Counsel, Northern Region, and Heidi Brewer, Assistant CCRC, Northern Region, Tallahassee, Florida; Rachel E. Fugate and Gregg D. Thomas of Holland & Knight LLP, Tampa, Florida; and Stephen F. Hanlon, Tallahassee, Florida, for Appellant.

Robert A. Butterworth, Attorney General, Richard B. Martell, Chief, Capital Appeals, and Curtis M. French, Assistant Attorney General, Tallahassee, Florida, for Appellee.

PER CURIAM.

Marc James Asay, an inmate under sentence of death, appeals the trial court's denial of his motion for postconviction relief filed pursuant to Florida Rules of Criminal Procedure 3.850 and 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm.

BACKGROUND

Asay was convicted and sentenced to death for the July 17, 1987, murders of Robert Lee Booker and Robert McDowell. On direct appeal, this Court summarized the facts of the crime as follows:

According to testimony of Asay's brother, Robbie, and Robbie's friend, "Bubba" McQuinn [O'Quinn], on July 17, 1987, the three met at a local bar where they drank beer and shot pool. They left the bar around 12:00 a.m. and went to a second bar where they stayed until closing at 2:00 a.m. Although Asay drank a number of beers, both Bubba and Robbie testified that Asay did not appear drunk or otherwise impaired.

After the bar closed, Robbie said he wanted to try to "pick up a girl" he had seen at the bar, so Bubba and Asay drove around the corner in Asay's truck. They returned to discover that Robbie had been unsuccessful with the girl he had seen, so Bubba suggested that they go downtown to find some prostitutes and he would pay for oral sex for them all. Asay and Bubba left in Asay's truck and Robbie left in his. Once downtown, Asay and Bubba soon spotted Robbie who was inside his truck talking to a black man, Robert Lee Booker. Robbie was telling Booker who was standing at the driver's side window of Robbie's truck that he and his friends were looking for prostitutes.

After spotting Booker standing by Robbie's truck, Asay told Bubba to pull up next to the truck. Asay immediately got out of his truck, proceeded to Robbie's truck, and told Robbie "You know you ain't got to take no s__t from these f___ing niggers." Although Robbie told Asay that "everything is cool," Asay began to point his finger in Booker's face and verbally attack him. When Booker told him "Don't put your finger in my face," Asay responded by saying "F__k you, nigger" and pulling his gun from his back pocket, shooting Booker once in the abdomen. Booker grabbed his side and ran. According to the medical examiner, the bullet perforated the intestines and an artery causing internal hemorrhaging. Booker's body was later found under the edge of a nearby house.

Robbie drove away immediately after the shooting. Asay jumped into the back of his truck, as Bubba drove off. When Asay got into the cab of the truck, Bubba asked him why he shot Booker. Asay responded, "Because you got to show a nigger who is boss." When asked if he thought he killed Booker, Asay replied, "No, I just scared the s__t out of him."

Bubba testified that after the shooting, Asay and Bubba continued to look for prostitutes. According to Bubba, he saw "Renee" who he knew would give them oral sex. It appears that at the time neither Bubba nor Asay was aware that "Renee" was actually Robert McDowell, a black man dressed as a woman. According to Bubba, he negotiated a deal for oral sex for them both. Bubba drove the truck into a nearby alley. McDowell followed. Bubba testified that McDowell refused to get into the truck with them both, so Asay left the truck and walked away to act as a lookout while Bubba and McDowell had sex. As McDowell started to get into the truck with Bubba, Asay returned, grabbed McDowell's arm, pulled him from the truck and began shooting him. McDowell was shot six times while he was backing up and attempting to get away. Asay jumped back in his truck and told Bubba to drive away. When asked why he shot McDowell, Asay told Bubba that he did it because "the bitch had beat him out of ten dollars" on a "blow job." McDowell's body was found on the ground in the alley soon after the shots were heard. According to the medical examiner, any of three wounds to the chest cavity would have been fatal.

Asay later told Charlie Moore in the presence of Moore's cousin, Danny, that he shot McDowell because McDowell had cheated him out of ten dollars on a drug deal and that he had told McDowell, "if he ever got him that he would get even." Asay told Moore that he was out looking for "whores," when he came across McDowell. According to Moore's cousin, Danny, Asay also told Moore that his plan was to have Bubba get McDowell in the truck and they "would take her off and screw her and kill her." Moore testified that Asay told him that when Bubba "didn't have [McDowell] in the truck so they could go beat him up," Asay "grabbed [McDowell] by the arm and stuck the gun in his chest and shot him four times, and that when he hit the ground, he finished him off." As a result of tips received from Moore and his cousin after McDowell's murder was featured on a television Crime Watch segment, Asay was arrested and charged by indictment with two counts of first-degree murder.

Asay v. State, 580 So.2d 610, 610-12 (Fla. 1991).

The jury found Asay guilty of the murders of both Booker and McDowell and recommended sentences of death for both murders. After concluding that the aggravating circumstances¹ surrounding the crime outweighed the mitigating circumstances,² the trial court imposed the death penalty for each of the murder convictions. We affirmed the convictions and sentences on direct appeal.³ See id. at 614.

Asay filed his first motion for postconviction relief in the trial court on March 16, 1993.⁴ On November 24, 1993, Asay filed an amended motion alleging twenty claims.⁵ 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. The trial judge denied the motion to disqualify. After holding a Huff⁶ hearing, the trial court summarily denied many of Asay's claims,⁷ but the court held an evidentiary hearing regarding Asay's ineffectiveness of trial counsel claims. Following the evidentiary hearing, the trial court denied relief on these claims as well.

JUDICIAL BIAS

The first issue Asay raises on appeal is that judicial bias during the trial and postconviction proceedings resulted in a denial of "a fair and impartial tribunal throughout his proceedings in violation of his due process rights."⁸ The same judge presided over both Asay's trial and his postconviction proceedings.

Asay points to two statements the trial judge made during trial and one statement written in an order discharging counsel and granting attorney's fees. According to Asay, these statements show that the trial judge was actually biased during the original trial and that the trial judge should have granted Asay's motion to recuse the judge from presiding over the postconviction proceedings. As part of his ineffective assistance of counsel claim, Asay also asserts that his trial counsel was ineffective for failing to move to disqualify the trial judge on the basis of these statements.

The first comment relied upon by Asay occurred during voir dire, when the assistant state attorney asked a venireperson whether he could follow the law with regard to aggravating and mitigating circumstances. The venireperson answered, "I feel like if its premeditated, I just don't see any reason what [sic] could be mitigating circumstances when you premeditate it.... I'm very opposed to ... paying for somebody to sit in a jail and rot for years and years." At a bench conference concerning this venireperson, the trial judge stated, "I think what we ought to do is let him off the jury, but put him on the Supreme Court."

Asay also relies upon a second comment that was made during a bench conference that occurred prior to the State resting its case. During this discussion regarding what jury instructions are required by law, the trial judge stated, "The First District Court of Appeals won't hear the appeal in this case if there is a first-degree conviction of murder."

Third, Asay points to a comment in an order concerning discharge of Asay's court-appointed counsel and payment of attorney's fees. According to Asay,⁹ the order stated that defense counsel had to endure the wrath of the victim's family and friends. Asay contends that the trial judge must have meant that defense counsel had to endure the wrath of the defendant's family and friends, and that the judge must have had improper ex parte contact with defense counsel in order to learn this.

As to Asay's claims of actual bias, these claims are procedurally barred because the grounds upon which the claims are based were known at the time of the direct appeal. See Rivera v. State, 717 So.2d 477, 481 n. 3 (Fla.1998); Stano v. State, 520 So.2d 278, 281 (Fla.1988); Zeigler v. State, 452 So.2d 537, 539 (Fla.1984). The statements relied upon by Asay contrast markedly with those in Porter v. State, 723 So.2d 191, 194 (Fla.1998),cert. denied, 526 U.S. 1120, 119 S.Ct. 1772, 143 L.Ed.2d 801 (1999), a case in which we vacated the death sentence due to evidence of the trial judge's actual bias during the penalty phase.¹⁰ In Porter, the evidence of actual bias was unknown at the time of the original trial and direct appeal. See id. at 195. Further, the statements in Porter showed the judge actually lacked impartiality, thus violating the defendant's "constitutional right to a fair and impartial tribunal." Id. I...