Bush v. Wainwright

• Decision Date: 26 February 1987
• Docket Number: Nos. 68617,68619,s. 68617
• Citation: 12 Fla. L. Weekly 116,505 So.2d 409
• Parties: 12 Fla. L. Weekly 116 John Earl BUSH, Petitioner, v. Louie L. WAINWRIGHT, Respondent. John Earl BUSH, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 409

505 So.2d 409

12 Fla. L. Weekly 116

John Earl BUSH, Petitioner, v. Louie L. WAINWRIGHT, Respondent.

John Earl BUSH, Appellant, v. STATE of Florida, Appellee.

Nos. 68617, 68619.

Supreme Court of Florida.

Feb. 26, 1987.

Rehearing Denied May 8, 1987.

Larry Helm Spalding, Capital Collateral Representative, Mark E. Olive, Litigation and Billy H. Nolas, Staff Atty., Office of Capital Collateral Representative, Tallahassee, for petitioner/appellant.

Robert A. Butterworth, Atty. Gen., and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for respondent/appellee.

PER CURIAM.

John Earl Bush, a day before his scheduled execution on April 22, 1986, filed in the circuit court a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 and a motion for stay of execution, and in this Court filed a petition for a writ of habeas corpus and a stay of execution. The circuit court denied all relief without an evidentiary hearing. This Court granted a stay of execution on April 21 in order to allow a careful review and consideration of certain claims raised in Bush's appeal of the circuit court's denial of his 3.850 motion and his petition for habeas corpus. We have exercised our jurisdiction under article V, section 3(b)(1) and (9), Florida Constitution, and now find Bush entitled to no relief.

Bush was convicted in November, 1982 of first-degree murder, armed robbery, and kidnapping. A jury recommended the imposition of a sentence of death, and Bush was so sentenced. We affirmed the conviction and sentence in Bush v. State, 461 So.2d 936 (Fla.1984), cert. denied, 475 U.S. 1031, 106 S.Ct. 1237, 89 L.Ed.2d 345 (1986). On March 20, 1986, the governor signed a warrant authorizing Bush's execution, and Bush sought relief in the circuit court.

We shall first examine the claims raised in the 3.850 motion. Of the seven claims raised therein, the last four either were or could have been considered on direct appeal and are therefore now barred from consideration. Porter v. State, 478 So.2d 33 (Fla.1985); O'Callaghan v. State, 461 So.2d 1354 (Fla.1984). We now examine 1) whether Bush was prejudiced by a "professionally inadequate" psychiatric evaluation which failed to disclose his alleged incompetency to stand trial, 2) whether Bush was in fact tried while incompetent, and 3) whether counsel at trial rendered ineffective assistance within the terms of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The first two issues raised above must fall together, as each lacks a crucial foundation in fact--any indication of Bush's incompetency to stand trial. Before trial below, the defense moved for the appointment of a psychiatric expert in order to evaluate the defendant's competency and the possible applicability of any mitigating factors. After consulting with the defense, the expert and counsel concluded that further examination would produce no useful information. We cannot find error in this tactical consensus reached by those parties most intimately involved with Bush and his defense. Since defense counsel was bound to seek out such expert testimony only if evidence existed calling into question Bush's sanity, Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); Christopher v. State, 416 So.2d 450 (Fla.1982), we cannot now find fault in counsel's decision as to the futility of pursuing the incompetency claim. As noted by the United States Supreme Court in Ake, "[a] defendant's mental condition is not necessarily at issue in every criminal proceeding." 105 S.Ct. at 1096.

We find no error under the circumstances of this case. Absolutely no evidence existed at the time of trial that Bush lacked "sufficient present ability to consult with and aid his attorney in the preparation of a defense with a reasonable degree of understanding." Ferguson v. State, 417 So.2d 631, 634 (Fla.1982). A review of the original record reflects no evidence that Bush was incompetent to stand trial. Further, the long psychiatric history indicating incompetency pointed to in Jones v. State, 478 So.2d 346 (Fla.1985), and Hill v. State, 473 So.2d 1253 (Fla.1985), is absent in this case, and the report prepared by a newly appointed psychiatric expert offers only weak support to Bush's claims. The numerous psychological problems now pointed out, such as learning disabilities, a passive and dependent personality, and possible "diffuse organic brain damage" do not, when taken together, sufficiently raise a valid question as to Bush's competency to stand trial. See James v. State, 489 So.2d 737 (Fla.) cert. denied, 477 U.S. 909, 106 S.Ct. 3285, 91 L.Ed.2d 574 (1986). We therefore reject the first two claims.

In turning to the claim of ineffective assistance of trial counsel, we scrutinize the alleged inadequacies under the test set forth in Strickland. Bush alleges that counsel was ineffective in, inter alia, failing to use the psychiatrist in compiling evidence of the defendant's mental incompetency, failing to file a number of pre-trial suppression motions, and failing to object to certain aspects of the proceedings at several stages of the trial. The test is set forth as follows:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

104 S.Ct. at 2064. Upon careful review, we determine that none of the alleged omissions in this case fall "outside the wide range of professionally competent assistance." Id. at 2066. The claimed errors of counsel involve either strategies which would have been unsupported by the record, such as the mental incompetency claim disposed of above, or actions pursued following sound strategies of the defense. The fact that these strategies resulted in a conviction augurs no ineffectiveness of counsel. Songer v. State, 419 So.2d 1044 (Fla.1982). In sum, we find no deficient performance prejudicing Bush, Knight v. State, 394 So.2d 997 (Fla.1981), and so reject this claim.

Finally, we turn to the claim of ineffective assistance of appellate counsel raised in Bush's petition for a writ of habeas corpus. Prejudice resulted, it is argued, when appellate counsel failed to raise the alleged unconstitutionality of a lineup identification obtained in the absence of defense counsel after arraignment.

In Knight, we required a showing that the alleged deficiency, "considered under the circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings." 394 So.2d at 1001. No such prejudice exists when the argument is considered in light of the case's facts.

Bush...