Blanco v. Wainwright

• Decision Date: 07 May 1987
• Docket Number: 68,839,Nos. 68,263,s. 68,263
• Citation: 507 So.2d 1377,12 Fla. L. Weekly 234
• Parties: 12 Fla. L. Weekly 234 Omar BLANCO, Petitioner, v. Louie L. WAINWRIGHT, etc., et al., Respondents. Omar BLANCO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1377

507 So.2d 1377

12 Fla. L. Weekly 234

Omar BLANCO, Petitioner, v. Louie L. WAINWRIGHT, etc., et al., Respondents.

Omar BLANCO, Appellant, v. STATE of Florida, Appellee.

Nos. 68,263, 68,839.

Supreme Court of Florida.

May 7, 1987.

Rehearing Denied July 10, 1987.

Larry Helm Spalding, Capital Collateral Representative and Mark E. Olive, Litigation Coordinator for Office of the Capital Collateral Representative, Tallahassee, for petitioner/appellant.

Robert A. Butterworth, Atty. Gen., and Penny H. Brill and Carolyn V. McCann, Asst. Atty. Gen., West Palm Beach, for respondents/appellee.

SHAW, Justice.

The appellant/petitioner Omar Blanco is a Florida prisoner whose conviction for first-degree murder and sentence of death were affirmed by this Court in Blanco v. State, 452 So.2d 520 (Fla.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 953 (1985). A death warrant was signed and execution set for February 3, 1986. Blanco petitioned the trial court for post-conviction relief under Florida Rule of Criminal Procedure 3.850 and this Court for a writ of habeas corpus. After granting a stay of execution and evidentiary hearings, the trial court denied all relief. We have jurisdiction, article V, sections 3(b)(1) and (9), Florida Constitution. We affirm the denial of rule 3.850 relief and deny the petition for writ of habeas corpus.

3.850 Relief

Appellant presented eleven claims to the trial court. We find that eight of these claims are procedurally barred because they either were or should have been presented on direct appeal: (1) did the trial court err in permitting appellant to call witnesses against the advice of defense counsel; (2) did the trial court conduct critical stages of the trial in the absence of appellant or an interpreter; (3) did the trial court err in questioning appellant concerning the presentation of his defense; (4) did the instructions to the jury unconstitutionally denigrate the jury's role in recommending life or death; (5) did the trial court improperly instruct the jury on the number of jurors required to return a life recommendation; (6) did the trial court improperly rely on the conviction for armed burglary as an aggravating factor; (7) did the trial court improperly rely on a previous conviction for armed robbery as an aggravating factor; and (8) did the prosecutor use inflammatory closing arguments. Herring v. State, 501 So.2d 1279 (Fla.1986); Adams v. State, 484 So.2d 1216 (Fla.), cert. denied, 475 U.S. 1103, 106 S.Ct. 1506, 89 L.Ed.2d 907 (1986); Smith v. State, 457 So.2d 1380 (Fla. 1984); Jones v. State, 446 So.2d 1059 (Fla.1984); Demps v. State, 416 So.2d 808 (Fla.1982). Only two of these procedurally barred claims merit any comment. Claim two was raised in part on direct appeal. Appellant now attempts to expand the claim by arguing that he did not receive a simultaneous translation of all proceedings and was not present at bench conferences held outside the hearing of the jury. Neither argument is cognizable on collateral review. Moreover, Suarez v. State, 481 So.2d 1201 (Fla.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2908, 90 L.Ed.2d 994 (1986), is directly on point. The public defender retained a personal translator for appellant and assigned a Cuban-born, Spanish-speaking attorney as assistant trial counsel. Both had served appellant in a previous trial for armed robbery and advised the court they had no difficulty communicating with him. The trial record contains a notation that the translator was seated next to the defendant throughout the trial. The record also shows that the trial judge required the translator and assistant counsel to demonstrate their proficiency in open court. The record also shows that at a noon recess, after the jury was excused, the trial judge conducted a short conference and noted that the translator had left with the jury, presumably with the permission of appellant and counsel. The trial judge later queried assistant counsel if he had advised appellant, in his native tongue, as to what had occurred and was assured that he had done so. We are satisfied, as in Suarez, that the court ensured that the appellant had the assistance of a competent translator at all times. On the question of appellant's presence at bench conference, the record shows that these conferences were held in appellant's presence. Nothing in the record supports the notion that appellant was not permitted to listen to these conferences, if either he or counsel so desired. On claim three, appellant attempts to revise claim one, which was presented and rejected on direct appeal, into a claim that the trial judge violated appellant's right against self-incrimination by questioning him on disagreements he had with defense counsel concerning the calling of witnesses. We rejected the core of this argument on direct appeal and see no impropriety in the judge directly addressing appellant concerning his desires on the conduct of the trial. The issue is not cognizable on collateral review.

Appellant presents four separate but overlapping arguments asserting that he received ineffective assistance of trial counsel. Appellant came to the United States from a Cuban prison during the 1980 boatlift from Mariel, Cuba. His brother, who was also in prison there, preceded him by several months. Both were detained at camps in the United States and released to the same sponsor in Dade County. The crimes here occurred, and were tried, in adjacent Broward County in 1982. Prior to the trial, defense counsel was concerned that the bad public reputation of Mariel refugees might prejudice the jury. Accordingly, the defense filed a motion for a change of venue but withheld moving it to hearing pending jury selection. On voir dire, without disclosing that appellant was a Mariel refugee from a Cuban prison, defense counsel questioned jurors closely and repeatedly on any prejudices they might have against Cuban emigrants in south Florida. The answers were satisfactory and each juror voiced impartiality. Appellant asserts, nevertheless, that counsel was ineffective for not dealing effectively with prejudice against Mariel refugees. In support, appellant produced the testimony of two Cuban emigre college professors who reviewed, at length, Cuban immigration to the United States and the negative public perception of Mariel refugees. The primary thrust of their testimony appears to have been that an overwhelming majority of the Mariel refugees were not criminal prisoners in Cuba and that the public perception of them as such was false. One professor opined that a Mariel refugee could not obtain a fair trial anywhere in the United States; the other professor concluded that a Mariel refugee could not receive a fair trial in south Florida. Neither was familiar with trial court procedures for ensuring that a defendant has an impartial jury or the actual measures taken in this case.

Claims of ineffective assistance of counsel are controlled by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A claimant who asserts ineffective assistance of counsel faces a heavy burden. First, he must identify the specific omission and show that counsel's performance falls outside the wide range of reasonable professional assistance. In evaluating this prong, courts are required to (a) make every effort to eliminate the distorting effects of hindsight by evaluating the performance from counsel's perspective at the time, and (b) indulge a strong presumption that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment with the burden on claimant to show otherwise. Second, the claimant must show that the inadequate performance actually had an adverse effect so severe that there is a reasonable probability that the results of the proceedings would have been different but for the inadequate performance. Applying these precepts, appellant has not shown that counsel's performance in dealing with "Mariel prejudice" was inadequate or identified with any specificity exactly what trial counsel should have done differently. Our review of the trial record indicates that trial counsel questioned the jurors very effectively on any possible prejudices they might have had, and, at the same time, persuasively argued to the juror panels that such prejudices were inconsistent with their duties and oaths should they be selected for the jury. Even if the two experts correctly characterized the general state of public opinion, it does not follow that this jury, selected under the safeguards offered defendant, was anything other than impartial. We reject the bald assertion that Mariel refugees cannot receive a fair trial in the United States or south Florida.

Appellant also argues that trial counsel was ineffective for failure to investigate and present mitigating evidence. In support of this point, collateral counsel travelled to Cuba and obtained written testimonials from relatives and friends opining that appellant came from a good family, was of good character, was nonviolent, had a grandmother who suffered fits of mental derangement, and himself suffered as a child from such fits. Appellant also offered similar testimony from childhood friends of the family who themselves came to the United States during the Mariel boatlift and who stated they would have testified for appellant had they been asked. In addition, appellant also presented the testimony of his brother and a written testimonial from his sponsor, both of whom came to the United States during the Mariel boatlift, who claimed they were available and would have testified had they been called. None of these relatives or friends had any knowledge of the case but many professed that appellant was innocent. The trial record itself shows that trial counsel perceived a need to "humanize" appellant by presenting such evidence. To that end, the trial court directed that...