Buenoano v. Dugger, s. 75213

• Decision Date: 05 April 1990
• Docket Number: Nos. 75213,75346,s. 75213
• Citation: 559 So.2d 1116
• Parties: 15 Fla. L. Weekly S196 Judy A. BUENOANO, Petitioner, v. Richard L. DUGGER, etc., Respondent. Judy A. BUENOANO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1116

559 So.2d 1116

15 Fla. L. Weekly S196

Judy A. BUENOANO, Petitioner, v. Richard L. DUGGER, etc., Respondent.

Judy A. BUENOANO, Appellant, v. STATE of Florida, Appellee.

Nos. 75213, 75346.

Supreme Court of Florida.

April 5, 1990.

Larry Helm Spalding, Capital Collateral Representative, Billy H. Nolas, Chief Asst. CCR, and Julie D. Naylor and Bret B. Strand, Assistants CCR, Tallahassee, for petitioner/appellant.

Robert A. Butterworth, Atty. Gen., and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for respondent and appellee.

PER CURIAM.

Judy A. Buenoano, under sentence of death and the governor's death warrant, petitions this Court for a writ of habeas corpus, appeals the trial court's denial of her motion for postconviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure, and seeks a stay of her scheduled execution. We have jurisdiction. Art. V, § 3(b)(1) & (9), Fla.Const.

The facts of this case are fully discussed in Buenoano's direct appeal reported at Buenoano v. State, 527 So.2d 194 (Fla.1988). In that case, this Court affirmed Buenoano's conviction for first-degree murder and sentence of death. A death warrant was signed by the governor with execution set for January 25, 1990. A petition for writ of habeas corpus was filed in this Court, and a motion to vacate was filed in the circuit court pursuant to rule 3.850. The circuit court summarily denied relief without an evidentiary hearing. On January 24, 1990, this Court entered an order for stay of execution. Buenoano's appeal from the trial court's ruling has been consolidated with the separate habeas petition.

The grounds urged for relief in the habeas petition and the appeal of the denial of the rule 3.850 motion overlap and are as follows: (1) the trial court gave improper jury instructions for the aggravating factor of heinous, atrocious, and cruel; (2) the sentencing proceeding was unreliable because the state presented unrebuttable hearsay testimony; (3) the state presented impermissible victim impact information during the guilt phase and the penalty phase in violation of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987); (4) Florida's current death penalty statute, enacted after the charged offense was committed, was improperly applied retroactively; (5) the trial court erred in allowing the state to introduce inadmissible Williams ¹ rule evidence; (6) the trial court erred in failing to find any mitigating circumstances; (7) the trial court failed to properly weigh the aggravating and mitigating circumstances; (8) the state presented improper arguments during the guilt phase and the penalty phase; (9) the jury was given instructions that improperly shifted the burden to Buenoano to prove that death was inappropriate; (10) the jury was improperly told that sympathy and mercy toward Buenoano were improper considerations; (11) the trial court improperly instructed the jury on the application of the cold, calculated, and premeditated aggravating circumstance; (12) Buenoano was denied a fair trial because she stood trial in leg irons; (13) the sentencing jury was misled by instructions given by the trial court and arguments made by the state that diluted its sense of responsibility for sentencing; (14) the trial court improperly instructed the jury that a verdict of life requires a majority vote; (15) the sentencing jury was improperly instructed on the aggravating factor of pecuniary gain; (16) Buenoano's death sentence is unconstitutional because her prior convictions, which were used in aggravation, were unconstitutionally obtained; (17) Buenoano was denied effective assistance of counsel for failing to argue error under Richardson v. State, 246 So.2d 771 (Fla.1971); (18) Buenoano was denied effective assistance of counsel for counsel's failure to obtain a waiver from Buenoano concerning the statute of limitations on any applicable lesser included offenses; (19) Buenoano was denied effective assistance of counsel for counsel's failure to provide a complete record on appeal; (20) Buenoano was denied effective assistance of counsel for counsel's failure to investigate and present information in mitigation regarding Buenoano's background; and (21) Buenoano was denied effective assistance of counsel due to a conflict of interest between Buenoano and trial counsel over a contract they entered with each other concerning book and film proceeds.

Initially, we note that claims (1) through (15) either were raised or should have been raised on direct appeal. ² These claims are procedurally barred and will not be addressed. In claims (17) through (21), Buenoano asserts that she was denied effective assistance of counsel at both the guilt and penalty phases of her trial and during her direct appeal. ³ After reviewing the record in its entirety, we find no evidence to support the contention that counsel's performance, even if perceived as deficient, prejudiced the outcome of the proceedings. ⁴

As her twentieth claim, Buenoano argues that counsel was ineffective for failing to investigate her family background and emotional history and present this information as mitigation at the penalty phase of her trial. Buenoano contends that had counsel investigated these matters, he would have discovered significant information regarding her impoverished upbringing and dysfunctional psychological state. For example, counsel would have discovered that as a child Buenoano was separated from her family at a young age following the death of her mother. She was frequently removed from one family, foster home or orphanage and placed in another. There are reports of sexual abuse. When Buenoano was eventually examined by mental health experts following her incarceration, the reports reveal evidence of psychological problems. Additionally, Buenoano asserts that at her sentencing proceeding, a mental health expert would testify that she is emotionally disturbed and lacks the ability to conform her conduct to the requirements of law.

Under the principles established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant alleging ineffective assistance of counsel must demonstrate that counsel's performance was deficient and that the deficient performance affected the outcome of the trial proceedings. Even though counsel's performance may have been deficient because he failed to investigate and present mitigating evidence to the jury, we are not persuaded that this failure was prejudicial to Buenoano in light of the facts of this case.

Among the evidence presented to the jury was that Buenoano systematically and methodically administered arsenic poison to her husband and later, to a live-in boyfriend, which eventually resulted in their deaths. She administered paraformaldehyde poison to yet a third man, which caused him to be hospitalized. This man testified that after he refused to ingest the vitamin capsules discovered to contain the poison, he suspected Buenoano was responsible for arranging to have a bomb explode in his car. The jury was told that Buenoano had been convicted in the drowning death of her disabled son. Following the deaths of her victims, Buenoano collected proceeds from the various life insurance policies she owned on them. Additionally, one witness testified that Buenoano never discussed ending her marriage by divorce, but only discussed solving her marital problems by poisoning her husband. Still another witness testified that Buenoano advised her not to divorce her husband but to take out a life insurance policy on him and then poison him with arsenic. Two witnesses testified that Buenoano admitted she killed James Goodyear.

In our opinion the mitigation evidence Buenoano suggests should have been presented to the jury in no way would be sufficient...