Bush v. Singletary, 89-4051

• Citation: 988 F.2d 1082
• Decision Date: 30 March 1993
• Docket Number: No. 89-4051,89-4051
• Parties: John Earl BUSH, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1082

988 F.2d 1082

John Earl BUSH, Petitioner-Appellant, v. Harry K. SINGLETARY, Secretary, Florida Department of Corrections, Respondent-Appellee.

No. 89-4051.

United States Court of Appeals, Eleventh Circuit.

March 30, 1993.

Billy H. Nolas, Julie D. Naylor, Ocala, FL, for petitioner-appellant.

Celia A. Terenzio, Asst. Atty. Gen., Dept. of Legal Affairs, West Palm Beach, FL, for respondent-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before KRAVITCH, EDMONDSON, and COX, Circuit Judges.

PER CURIAM:

John Earl Bush, a Florida inmate, was convicted of first-degree murder and sentenced to death. He filed a 28 U.S.C. § 2254 petition challenging both his conviction and his sentence. The district court denied relief, and Bush appeals. We affirm.

FACTS

On April 27, 1982, John Earl Bush and three other men abducted Frances Slater from the convenience store where she worked. Her body was found later that day, thirteen miles away. She had been stabbed in the abdomen and shot once in the back of her head at close range. The convenience store's cash register and floor safe had been robbed of approximately $134.00. Bush was tried for the crimes in 1982 and convicted, following a jury trial, of first degree murder, armed robbery and kidnapping.

Four pretrial taped statements made by Bush to law enforcement authorities were introduced at trial. The Supreme Court of Florida described these statements as "the only known version of the events [which] are presented by Bush in the light most favorable to him." Bush v. State, 461 So.2d 936, 937 (Fla.1984). In the first statement, Bush denied any involvement with the Slater abduction but said that on the night in question he had given a ride to Bush made a fourth statement, against the advice of his attorney, in which he said that he is the one who stabbed Frances Slater but that he had "faked" it in an effort to get his cohorts to leave her alone. He said that an accomplice, Parker, shot her. The medical examiner testified that the stab wound was superficial and did not involve Ms. Slater's vital organs. The examiner's opinion was that a gunshot wound to the head was the cause of death.

                three men whom he did not know.   He also claimed he had an alibi.   When officers took Bush to West Palm Beach to verify his alibi, Bush recanted his first statement and made a second statement.   In this statement he said that he, Pig Parker, Alfonso Cave, and Terry Johnson had gone to Fort Pierce with the intention of committing a robbery and that the four had abducted, robbed, and murdered Miss Slater.   He denied stabbing or shooting the victim, denied knowing whose idea it was to kill her, and denied seeing anyone with a knife.   After Bush and the officers returned from West Palm Beach, he made a third statement.   In this statement he admitted driving the getaway vehicle.   He also admitted owning the gun used to shoot the victim, and he admitted disposing of it the day after the murder
                

Following a separate sentencing hearing, the jury recommended the death penalty by a vote of seven to five. The trial judge, citing three aggravating factors and no mitigating factors, sentenced Bush to death.

PROCEDURAL HISTORY

Bush appealed his conviction and sentence to the Supreme Court of Florida. In November 1984, the Supreme Court of Florida affirmed his conviction and his sentence. Bush, 461 So.2d at 942. His petition for a writ of certiorari was denied. Bush v. Florida, 475 U.S. 1031, 106 S.Ct. 1237, 89 L.Ed.2d 345 (1986).

Bush's first death warrant was signed in March 1986, after which he filed a motion to vacate his conviction and sentence pursuant to Florida Rule of Criminal Procedure 3.850. Following the denial of his motion, he filed a petition for writ of habeas corpus in the Supreme Court of Florida. That court stayed his execution to consider both his petition and his appeal of the denial of his 3.850 motion. In February 1987, the Supreme Court of Florida denied the requested relief. Bush v. Wainwright, 505 So.2d 409 (Fla.1987). The Florida Supreme Court denied rehearing in May 1987. Id. In October 1987, the Supreme Court of the United States denied certiorari. Bush v. Florida, 484 U.S. 873, 108 S.Ct. 209, 98 L.Ed.2d 160 (1987).

On January 8, 1988, Bush's second death warrant was signed. In February 1988, two days before his scheduled execution, Bush filed this 28 U.S.C. § 2254 petition in the district court. His petition asserts seventeen claims. ¹ After an evidentiary hearing The district court issued a certificate of probable cause to appeal, and we subsequently held proceedings in this court in abeyance to allow Bush to pursue state habeas proceedings in the Florida Supreme Court. The Supreme Court of Florida, however, denied relief. Bush v. Dugger, 579 So.2d 725 (Fla.1991).

on the adequacy of counsel issues, the district court denied relief on all claims.

ISSUES ON APPEAL

Bush argues on this appeal that the district court erred in denying relief on four claims. His brief articulates the issues as following:

(1) Whether Mr. Bush's sentence of death constitutes cruel and unusual punishment because the state courts did not make a finding on his individual culpability sufficient to satisfy the Eighth Amendment.

(2) Whether the prosecutor's inaccurate, inconsistent, and misleading presentation violated the Eighth and Fourteenth Amendments.

(3) Whether the state's comments and the trial court's instructions that a verdict [recommending] life imprisonment had to be rendered by a majority of the jury misled the jury as to its role at sentencing and created the risk that death may have been imposed because of inappropriate factors, in violation of the Eighth and Fourteenth Amendments.

(4) Whether Mr. Bush received ineffective assistance of counsel at the sentencing phase of his capital trial.

Brief for Appellant at 1.

We will address each issue in turn.

DISCUSSION

1. Whether Bush's sentence of death constitutes cruel and unusual punishment because the state courts did not make a finding of his individual culpability sufficient to satisfy the Eighth Amendment.

Bush argues that the death sentence is unwarranted in this case because the state courts did not make a finding that he was responsible for the murder of Ms. Slater. Principles of proportionality embodied in the Eighth Amendment prohibit the imposition of the death penalty upon persons who, though guilty of capital murder Any appropriate tribunal may make the finding of culpability required by Enmund. Cabana v. Bullock, 474 U.S. 376, 392, 106 S.Ct. 689, 700, 88 L.Ed.2d 704 (1986). Thus a finding by the jury, trial judge, or appellate court may satisfy Enmund. Id. The state court findings of fact, both trial and appellate, are entitled to a presumption of correctness, under 28 U.S.C. § 2254(d). Sumner v. Mata, 449 U.S. 539, 546, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981), Lusk v. Dugger, 890 F.2d 332, 336 (11th Cir.1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3297, 111 L.Ed.2d 805 (1990).

                under state law, did not themselves kill, attempt to kill, or intend to kill.  Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).   In Tison v. Arizona, 481 U.S. 137, 158, 107 S.Ct. 1676, 1688, 95 L.Ed.2d 127 (1987), the Court held that major participation in the felony committed, combined with a reckless indifference to human life, was sufficient to satisfy Enmund 's culpability requirement
                

Bush argues that the state court findings in his case do not satisfy the requirements of Enmund and its progeny. More specifically, Bush argues that there is no finding of fact on Bush's mental state at the time in question. He also contends that any such finding would contradict the facts that the Florida Supreme Court found to be disclosed by the "only known version of the events." Brief for Appellant at 29-30 (quoting Bush, 461 So.2d at 937 (the Supreme Court of Florida's affirmance of Bush's conviction)). The State argues that both the trial court and the appellate court made a sufficient culpability finding.

The case was submitted to the jury on theories that included felony murder. The jury's guilty verdict, therefore, does not answer the culpability question in this case. The trial judge's sentencing findings include the following:

Of course, the only version of the actions that took place that night that we have come from your statements both out of court and in court. I guess we don't have to believe your statement, but since there is no other evidence we can't act upon anything that wasn't in evidence. So we must assume that you were an accomplice in the offense and we must assume, that from the evidence of Dr. Wright, that the actual death occurred as a result of the bullet wound and the only evidence, direct evidence that we have is that another person imposed that. But the third part here is, and the Defendant's participation was relatively minor. The evidence that was presented in this case is that you were together with these other people during this entire evening, that it was your car, that you were doing all the driving and that it was your weapon. The evidence then shows that when you stopped down in that road you and Parker got out of the car and took the girl back and between the two of you you did her in.

You took the first step by stabbing her. You said you did not intend to kill her. Apparently the jury disbelieved that and I am privileged to disbelieve it as well. In any event, what you did, stabbing her, making her fall to the ground, facilitated and cooperated with Parker in what he did next, and therefore in my opinion there is no way to say what you did was relatively minor.

R.8 at 1304-1305, Sentencing Transcript (emphasis added).

On direct appeal Bush argued that under Enmund, the trial judge should have instructed the jury during the sentencing phase that a sentence of death may not be imposed in the absence of intent to...