Bottoson v. State

Citation674 So.2d 621
Decision Date18 January 1996
Docket NumberNo. 81411,81411
Parties21 Fla. L. Weekly S205, 21 Fla. L. Weekly S38 Linroy BOTTOSON, Appellant, v. STATE of Florida, Appellee.
CourtUnited States State Supreme Court of Florida

James M. Russ of the Law Offices of James M. Russ, P.A., Orlando; and Steven M. Goldstein, Special Counsel, Volunteer Lawyers' Resource Center, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General; and Margene A. Roper and Kenneth S. Nunnelley, Assistant Attorneys General, Daytona Beach, for Appellee.

PER CURIAM.

We have on appeal the judgment of the trial court denying Linroy Bottoson, an inmate under sentence of death, relief requested under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. Art. V, § 3(b)(1), (9), Fla. Const.

Briefly stated, Bottoson kidnapped a postmistress and stole some money orders. He held her captive for three days and at least part of the time confined her in the trunk of his car. He then stabbed her sixteen times and finally ran over her with his car. He admitted the murder to more than one person. The jury recommended death, and a sentence of death was imposed. Bottoson v. State, 443 So.2d 962 (Fla.1983), cert. denied, 469 U.S. 873, 105 S.Ct. 223, 83 L.Ed.2d 153 (1984).

Most of Bottoson's claims are procedurally barred 1 or meritless. 2 However, there are three issues which require discussion.

Bottoson contends that his trial counsel was ineffective for failing to investigate the qualifications of a dog handler who testified for the State. At the time of the trial, the witness was a nationally recognized witness in dog handling, but several years later he was exposed as a charlatan who had misrepresented himself and his dog's capabilities. We agree with the trial court's finding that counsel's decision not to probe deeper into the witness's qualifications was not substandard or deficient. Moreover, even if it could be said that counsel was deficient, the evidence against Bottoson was so overwhelming that there is no reasonable probability that the result would have been different in the absence of such deficiency. 3

Turning to the penalty phase, Bottoson contends that the jury instructions at his trial violated Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). Because the trial judge only instructed the jury on the statutory mitigating factors, it is clear that a Hitchcock error did in fact occur. However, the United States Supreme Court acknowledged in Hitchcock that its reasoning was subject to a harmless error analysis.

At the outset, we note that in this case the trial court permitted the presentation of nonstatutory mitigating evidence and did not expressly tell the jury not to consider such evidence. Moreover, defense counsel presented certain nonstatutory evidence. The jury was told that they could consider anything in mitigation. During closing argument in the penalty phase, the prosecuting attorney made the following remarks:

Well, let's be fair to the Defendant. There were some other things. The reason why this big blank space down here [on the jury form] is there and that is because, ladies and gentlemen, under the law, you all can bring in anything you want to by way of mitigation.

From the case in chief, that is the evidence that you all already heard, I think you heard some evidence of, in the statement that he gave to the ministers, I'm sorry that this happened, demons got on me. You've heard a lot of evidence even in this portion of the trial, the penalty phase that Mr. Bottoson holds himself out as a minister and finally, in that statement, that came out in the case in chief, ladies and gentlemen, Mr. Bottoson thinks that fourteen years of Federal time is enough and he has that on him. You may consider that in mitigation.

From the Defense's witnesses that were brought in here, ladies and gentlemen, I'm going to write these by numbers. Reverend Johnson comes in here and I think what you can boil down his testimony to be saying is one or more people in the courtroom have made mistakes.

Well, for what it's worth, you can consider that, Mrs. Johnson says that she feels Linroy Bottoson is not a sinner. You may consider that.

....

Finally, ladies and gentlemen, in mitigation, you see something you've seen, something from Mrs. Bottoson. There's a mother who loves her son and you can consider that.

Finally, the nonstatutory mitigating evidence which Bottoson presented in mitigation was not strong. A preacher and his wife testified that Bottoson had become a devout church member and assisted in counselling members of the congregation. A corrections officer testified that he had heard Bottoson counselling another prisoner. Bottoson's mother testified that he was a good son. Particularly in view of the strong aggravating circumstances, 4 we are convinced beyond a reasonable doubt that the Hitchcock error was harmless. See Demps v. Dugger, 874 F.2d 1385 (11th Cir.1989) (finding Hitchcock error harmless in view of minimal statutory mitigating evidence), cert. denied, 494 U.S. 1090, 110 S.Ct. 1834, 108 L.Ed.2d 963 (1990).

The bulk of the ten-day hearing on the motion for postconviction relief focused on Bottoson's claim that his lawyer, William Sheaffer, was ineffective during the penalty phase of his trial. The judge addressed this claim as follows:

16. Claim J, that Defendant's counsel was ineffective during the penalty phase of the trial, must also be denied. It is alleged that counsel failed to obtain Defendant's prior mental health records and failed to interview family members and friends, specifically Mr. Bottoson's mother. However, these claims are refuted by the record. Counsel attempted to obtain Defendant's past psychiatric records but was unable to obtain them prior to trial. Additionally, counsel had contacted Mr. Bottoson's mother prior to trial.

The most troubling claim for this Court was Mr. Bottoson's assertion that counsel failed to present any mental disturbance evidence and certain other mitigating evidence during the penalty phase. However, Defendant's trial counsel stated that he had discussed Defendant's mental health with two or three psychiatrists who had taken a complete past medical history. Counsel averred that he did not receive any information which would have indicated past mental illness or present mental illness that could either serve as a defense or a mitigating factor in the penalty phase. Additionally, to present this type of evidence to the jury would have been incongruous with the defense asserted, i.e. Defendant had not committed the crime. During the penalty phase argument, counsel again pointed out to the jury the possibility that someone else had committed the crime. Certainly this was a valid strategy.

In any event, this Court has extensively reviewed this claim in light of the entire record, and finds that even if counsel's performance may have been deficient in some respects, any failure was not prejudicial pursuant to Strickland, 466 U.S. at 668 [104 S.Ct. at 2052, 80 L.Ed.2d at 674]. The mitigating evidence now presented would not outweigh or overcome the aggravating circumstances of this murder. Defendant's background, child experiences (Defendant was 41 years old at the time of trial) and religious eccentricities do not compare to the aggravating factors that 1) Mr. Bottoson had been previously convicted of a felony, 2) the murder occurred during the commission of a felony, 3) the murder was committed to avoid arrest, and that 4) the murder was especially heinous because of the kidnapping, long confinement and mode of killing of the 74 year old victim. See generally Buenoano v. Dugger, 559 So.2d 1116 (Fla.1990). Hence, there is no finding of prejudice under Strickland.

The record of the postconviction hearing reflects that Bottoson told Sheaffer that he had been treated for depression in Ohio and in connection with his prior robbery conviction in California. Sheaffer asked his investigator to try to obtain the Ohio medical records. The investigator contacted the applicable Ohio hospital but was advised that the records were unavailable because they had been destroyed in a fire. Sheaffer said he took no action on the California treatment because Bottoson had minimized the episode.

The postconviction record further shows that Sheaffer had no personal reservations concerning Bottoson's mental health, but in order to be certain he had him examined by two psychiatrists. Although these were competency examinations, the psychiatrists' reports necessarily discussed all aspects of Bottoson's mental health. After reviewing these reports and talking with one of the psychiatrists, Dr. Kirkland, Sheaffer concluded that the presentation of mental health testimony would not be helpful to Bottoson.

In addition, Sheaffer talked to Bottoson about witnesses who might be called in the penalty phase. Bottoson suggested two ministers and a person from the jail, but said there were no others whom he wanted to speak on his behalf. Sheaffer called Bottoson's minister as well as the minister's wife, and they both testified as to Bottoson's good character. Sheaffer also called Bottoson's mother to testify that he had been a good son and to plead for mercy.

Dr. Kirkland, who also testified at the postconviction hearing, said that Bottoson had told him of the psychiatric treatments he had received in Ohio and California. He was aware that Bottoson had experienced religious hallucinations, but observed that psychiatrists are loath to say that this would indicate that a person is abnormal or mentally ill. Dr. Kirkland was then shown a card reflecting Bottoson's medical diagnosis in Ohio, obtained by the Capital Collateral Representative's investigator from another hospital to which Bottoson's records had been transferred. The card referred to a 1962 diagnosis of acute schizophrenic episode with the words "discharge, improved." Dr. Kirkland testified that in 1962 this...

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