Buford v. State

• Decision Date: 05 June 1986
• Docket Number: No. 66329,66329
• Citation: 492 So.2d 355,11 Fla. L. Weekly 257
• Parties: 11 Fla. L. Weekly 257 Robert Lewis BUFORD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 355

492 So.2d 355

11 Fla. L. Weekly 257

Robert Lewis BUFORD, Appellant, v. STATE of Florida, Appellee.

No. 66329.

Supreme Court of Florida.

June 5, 1986.

Rehearing Denied Aug. 25, 1986.

David E. Weisberg of Weisberg & Berns, New York City, for appellant.

Jim Smith, Atty. Gen. and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.

ADKINS Justice.

Robert Lewis Buford was convicted of first-degree murder and sexual battery upon a child under eleven years of age. The jury recommended that two sentences of life imprisonment be imposed. The court imposed two sentences of death. This Court vacated the death sentence for sexual battery and affirmed the death sentence for murder. Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1164, 102 S.Ct. 1039, 71 L.Ed.2d 320 (1982). Shortly thereafter, this Court denied Buford's petition for writ of habeas corpus. Buford v. Wainwright, 428 So.2d 1389 (Fla.), cert. denied, 464 U.S. 956, 104 S.Ct. 372, 78 L.Ed.2d 331 (1983). Buford subsequently sought post-conviction relief in the trial court pursuant to Florida Rule of Criminal Procedure 3.850, which was denied. He now seeks review of that denial. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Appellant's motion to vacate, set aside or correct judgment raised the following issues: (1) whether the death sentence in this case is contrary to Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); (2) whether appellant was denied effective assistance of counsel at trial; (3) whether appellant was denied effective assistance of counsel at sentencing; (4) whether a new sentencing hearing is required because two death sentences were imposed in a single sentencing hearing and one sentence was subsequently reversed; (5) whether the trial court erred in refusing to instruct the jury on the doctrine of independent acts; (6) whether the trial court erred in failing to consider non-statutory mitigating factors; (7) whether the death penalty was imposed in an arbitrary and discriminatory manner; and (8) whether the jury override was a violation of due process.

Issues 4, 5, 6 and 8 either were or could have been raised on direct appeal and are therefore precluded from collateral review. Raulerson v. State, 462 So.2d 1085 (Fla.1985); Smith v. State, 457 So.2d 1380 (Fla.1984).

Appellant claims that the death sentence in this case is contrary to Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), in which the United States Supreme Court held that it is cruel and unusual punishment to impose capital punishment on a defendant who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill or intend that a killing take place or that lethal force be employed. Id. at 797, 102 S.Ct. at 3376-3377. We choose to address the Enmund issue despite the fact that it was raised on direct appeal. Buford, 403 So.2d at 950. We will address the issue because our opinion affirming Buford's death sentence was rendered on July 23, 1981, rehearing denied October 14, 1981, before the United States Supreme Court clarified the law in this area by rendering the Enmund decision on July 2, 1982.

Appellant contends that a combination of his trial court testimony, comments by the prosecutor and instructions by the judge warrants a finding that the jury convicted him for first-degree murder under a theory and factual setting which renders the sentence of death impermissible under Enmund. Appellant notes that the jury was instructed that they could find him guilty of first-degree murder even if they found that Darrell Wilson had actually killed the victim. Further, the jury was instructed on three theories of first-degree murder; premeditated killing by Buford; killing by Buford in the course of his perpetration of sexual battery; killing by Darrell Wilson. Moreover, the prosecutor, in summation, informed the jury that they could convict Buford of first-degree murder even if the actual killing was done by Darrell Wilson. Lastly, Buford testified at trial that Darrell Wilson alone murdered the seven-year-old girl.

The crux of appellant's argument is that in light of the various theories of first-degree murder presented to the jury, a special verdict form was required to insure that the jury did not convict him under a theory and factual setting which would prohibit the imposition of the death sentence. We disagree. In Brown v. State, 473 So.2d 1260 (Fla.), cert. denied, 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985), we found no error in the trial court's refusal to use special verdict forms which would have indicated whether the first-degree murder conviction was based upon premeditated murder or felony murder. Id. at 1265. Similarly, we now hold that a special verdict form is not required to determine whether a defendant's first-degree murder conviction is based upon premeditated murder, felony murder or accomplice liability.

Appellant's argument must fail because Enmund does not constitutionally require the jury to expressly make the finding of culpability requested. Ross v. Kemp, 756 F.2d 1483 (11th Cir.1985). Rather, under Florida's bifurcated capital sentencing scheme, the sentencing judge and the reviewing court determine whether the defendant was convicted under circumstances which would prohibit imposition of the death sentence. Brown, 473 So.2d at 1265.

In further support of the proposition that the judge, not the jury, must determine whether a defendant cannot be sentenced to death under Enmund, we note that the United States Supreme Court recently explained:

In light of the fact that the Sixth Amendment does not require jury sentencing, that the demands of fairness and reliability in capital cases do not require it, and that neither the nature of, nor the purpose behind, the death penalty requires jury sentencing, we cannot conclude that placing responsibility on the trial judge to impose the sentence in a capital case is unconstitutional.

Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 3165, 82 L.Ed.2d 340 (1984).

The facts of this case make it clearly distinguishable from Enmund. Unlike Enmund, who was the driver in a getaway car and was not present at the scene of the immediate murders, Buford told his sister that he killed a lady with a brick and confessed to the police that he had sexual intercourse with the seven-year-old victim and then dropped a thirty-two pound concrete block on her head two times. Thus, Enmund is inapplicable to this case, because, as we have stated twice previously, ample evidence exists to support a finding of premeditation. 403 So.2d at 948, 428 So.2d at 1391.

Appellant contends that his trial counsel was ineffective during the guilt phase of the trial because (1) he failed to obtain a transcript of the grand jury testimony; (2) failed to move for a change of venue; (3) failed to move for an order suppressing the results of the physical examination; and (4) failed to request an instruction on voluntary intoxication. Appellant's claim fails both prongs of the two-part test enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)...