Brown v. State

• Decision Date: 09 March 2000
• Docket Number: No. SC90540.,SC90540.
• Citation: 755 So.2d 616
• Parties: Paul Alfred BROWN, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

755 So.2d 616

Paul Alfred BROWN, Jr., Appellant, v. STATE of Florida, Appellee.

No. SC90540.

Supreme Court of Florida.

March 9, 2000.

Rehearing Denied April 26, 2000.

Terri L. Backhus, Tampa, Florida; and John Moser, Capital Collateral Regional Counsel, Harry P. Brody, Assistant CCRC and John Abatecola, Assistant CCRC, Office of the Capital Collateral Regional Counsel-Middle Region, Tampa, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Robert J. Landry, Assistant Attorney General, Tampa, Florida, for Appellee.

PER CURIAM.

Paul Brown, a prisoner under sentence of death, appeals the trial court's denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the trial court's denial.

I. PROCEDURAL HISTORY

Brown was found guilty and sentenced to death in 1987 for the murder of seventeen-year-old Pauline Cowell on March 20, 1986. The factual circumstances of this case are set forth in our opinion on direct appeal, in which this Court affirmed Brown's conviction and sentence. Brown v. State, 565 So.2d 304, 304-06 (Fla.1990). On November 26, 1990, a petition for writ of certiorari was denied by the United States Supreme Court. Brown v. Florida, 498 U.S. 992, 111 S.Ct. 537, 112 L.Ed.2d 547 (1990). In 1992, Brown filed his initial postconviction motion under Florida Rule of Criminal Procedure 3.850. The circuit court dismissed the initial motion without prejudice, and Brown filed two amended rule 3.850 motions in 1992. Public records litigation pursuant to chapter 119, Florida Statutes, was ongoing in the case. On October 12, 1994, the circuit court granted Brown's motion to disqualify the Hillsborough County State Attorney's Office because of potential conflict in that Brown's former defense counsel had become employed there as an assistant state attorney. The State appealed, and this court quashed the order without opinion on January 31, 1995. Brown filed his third amended rule 3.850 motion in 1996.¹ The circuit court summarily denied twelve of Brown's sixteen claims. State v. Brown, No. 86-4084 (Fla. 13th Cir. Ct. order filed Nov. 12, 1996) (Order I). The court found six of the claims to be procedurally barred because they were raised or could have been raised on direct appeal.²Id. at 5. The court found three of the claims to be procedurally barred because Brown had attempted to circumvent the procedural bar by couching the issues as ineffective assistance of counsel.³Id. After setting forth analysis and record attachments, the court found three other claims to be without merit.⁴Id. at 6-8. The court reserved for an evidentiary hearing the remaining four claims: lost or destroyed evidence, claim 3; prosecutorial misconduct, claim 6; ineffective assistance of counsel at the guilt phase of Brown's trial, claim 7; and ineffective assistance of counsel at the penalty phase of Brown's trial, claim 8. Id. at 6.

A week before the date of the evidentiary hearing, the then-presiding circuit judge recused himself because he had not yet attended the required "Handling Capital Cases" course. The hearing before another circuit judge took place on March 3, 1997. Following the evidentiary hearing, the court issued a five-page written order denying relief on the four claims upon which the evidentiary hearing was held. State v. Brown, No. 86-4084 (Fla. 13th Cir. Ct. order filed Apr. 8, 1997) (Order II). In her order, the circuit judge found no basis for disturbing the previous circuit judge's order denying the remaining twelve claims without an evidentiary hearing. Id. at 2. The circuit judge noted in her order that she had given Brown an opportunity to present evidence and argument on any of the sixteen claims but that Brown had declined to do so except for the four claims reserved for evidentiary hearing. Id.

II. ISSUES ON APPEAL

In this appeal, Brown raises fourteen claims.⁵ Within those claims, he contends that the circuit court failed to adequately address the twelve issues summarily denied by the previous circuit judge and disputes the circuit court's findings and rulings on three of the four issues⁶ considered at the evidentiary hearing. We find no error in the circuit court's order. Nine of Brown's claims raised in this appeal in this Court are procedurally barred,⁷ and we find no need to discuss them. We will address only claim I, a portion of claim II, and claims III, IV, and X.

Claim I. CCP Jury Instruction

In his first claim, Brown argues that his conviction must be reversed because the jury instruction given as to the aggravating factor of cold, calculated, and premeditated (CCP) was unconstitutionally vague. Brown points out that, in the direct appeal in this case, this Court rejected Brown's constitutionality argument on the basis that Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), did not apply to Florida and to this aggravating factor. See Brown, 565 So.2d at 308

. Brown also notes that, subsequent to Brown, the United States Supreme Court in Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), and Hodges v. Florida, 506 U.S. 803, 113 S.Ct. 33, 121 L.Ed.2d 6 (1992), undercut the efficacy of this Court's reasoning in the Brown decision.

Although Brown does not refer to it in the present appeal, Jackson v. State, 648 So.2d 85 (Fla.1994), was a decision subsequent to Brown in which we discussed Brown and acknowledged that this Court's opinion as to the inapplicability of Maynard to CCP instructions had been "discredited in Espinosa" and "undercut by Hodges." Jackson, 648 So.2d at 88. In Jackson, we held that:

Florida's standard CCP jury instruction suffers the same constitutional infirmity as the HAC-type instructions which the United States Supreme Court found lacking in Espinosa, Maynard, and [Godfrey v. Georgia, 446 U.S. 420, 428-29, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980)].

648 So.2d at 90. However, we then held:

Claims that the instruction on the cold, calculated, and premeditated aggravator is unconstitutionally vague are procedurally barred unless a specific objection is made at trial and pursued on appeal. James v. State, 615 So.2d 668, 669 & n. 3 (Fla.1993).

648 So.2d at 90. We followed Jackson with Walls v. State, 641 So.2d 381 (Fla. 1994), in which we held in respect to Jackson constitutional error as to the CCP instruction:

To preserve the error for appellate review, it is necessary both to make a specific objection or request an alternative instruction at trial, and to raise the issue on appeal.

Walls, 641 So.2d at 387. In Pope v. State, 702 So.2d 221 (Fla.1997), we again addressed the preservation issue and held:

However, we have made it clear that claims that the CCP instruction is unconstitutionally vague are procedurally barred unless a specific objection is made at trial and pursued on appeal. The objection at trial must attack the instruction itself, either by submitting a limiting instruction or making an objection to the instruction as worded.

702 So.2d at 223-24. Since our decision in Brown's direct appeal on this issue was reached on the basis of our holding that Maynard did not apply, we did not reach the issue of preservation of the claim at trial. We have in this appeal reviewed the trial record to determine whether the issue was preserved by an objection to the instruction as worded or by a request for a limiting instruction. We find that defense counsel's only objections to the CCP instruction were presented at the jury instruction conference and the allocution hearing:

I object to that one. There is no basis in the evidence before the Court. It is insufficient evidence to border [sic] on the instruction on that.

Later, at the allocution hearing before the court prior to sentencing, defense counsel argued against the application of the CCP aggravator as follows:

The case law is quite clear that aside from legal premeditation, the proof that a capital felony is committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification requires proof of much greater weight than does the mere premeditation required to prove a first degree murder case.... I do not believe that the evidence is weighty enough or convincing enough to show that this capital felony was committed in a cold, calculated and premeditate[d] manner within the meaning of the aggravating circumstance in the statute.

Defense counsel neither submitted a limiting instruction nor specifically objected that the CCP instruction was unconstitutionally vague, as we required in Pope. Accordingly, we find that defense counsel's objection did not preserve this issue for appellate review in accord with Jackson, Walls, and Pope.

Claim II. Ineffective Assistance by Penalty-phase Counsel in Failing to Object to Closing Argument

In this subclaim of claim II, Brown contends that his penalty-phase counsel, Craig Alldredge, was prejudicially ineffective in that he failed to object to a portion of the penalty-phase closing argument by Assistant State Attorney Michael Benito that described positive aspects of life in prison in support of the prosecutor's argument against a life sentence. In her order, the circuit judge held in respect to this claim:

Evidence relating to [this claim] was presented by testimony of Wayne Chalu,... lead trial counsel for the defense, and Craig Alldredge, ... penalty phase trial counsel for the defense. The claim is essentially that trial counsel was ineffective for failing to object to the prosecutor's improper closing argument in the second phase...:

What about life imprisonment, ladies and gentlemen? What about life imprisonment? Now I am not saying that I would like to spend one day in jail, all right, don't get me wrong, but what about life imprisonment? What can one do in prison? You can laugh; you can cry; you can eat; you can sleep; you can participate in sports; you

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