Card v. State, No. SC00-182.

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM.
• Citation: 803 So.2d 613
• Docket Number: No. SC00-182.
• Decision Date: 11 October 2001
• Parties: James Armando CARD, Appellant, v. STATE of Florida, Appellee.

803 So.2d 613

James Armando CARD, Appellant,
v.
STATE of Florida, Appellee

No. SC00-182.

Supreme Court of Florida.

October 11, 2001.

Rehearing Denied December 20, 2001.

803 So.2d 616

Steven L. Seliger of Garcia and Seliger, Quincy, FL, for Appellant

803 So.2d 617

Robert A. Butterworth, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, FL, for Appellee

PER CURIAM.

James Armando Card appeals his sentence of death following resentencing. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm Card's death sentence.

I. PROCEDURAL HISTORY

Card, who was thirty-four years old at the time of the crimes, was convicted of first-degree murder, robbery, and kidnapping and was sentenced to death. This court affirmed. However, in postconviction proceedings, the trial court vacated his sentence of death after an evidentiary hearing based on an improper procedure used in permitting the State to prepare the original sentencing order.¹ After a new penalty phase hearing before a new jury, the trial court imposed the death penalty.

II. MATERIAL FACTS

On Card's direct appeal, the Court related the following material facts:

On the afternoon of June 3, 1981, the Panama City Western Union office was robbed of approximately $1,100. Blood was found in the office and the clerk, Janis Franklin, was missing. The following day, Mrs. Franklin's body was discovered beside a dirt road in a secluded area approximately eight miles from the Western Union office. Her blouse was torn, her fingers severely cut to the point of being almost severed and her throat had been cut.

As early as 6:30 on the morning of June 3, 1981, the appellant telephoned an acquaintance, Vicky Elrod, in Pensacola, Florida, and told her that he might be coming to see her to repay the $50 or $60 he owed her. At approximately 9:30 that night Vicky Elrod met with the appellant. He took out a stack of twenty and one-hundred dollar bills and she asked if he had robbed a 7 Eleven store. He told her that he had robbed a Western Union station and killed the lady who worked there. He described scuffling with the victim, tearing her blouse and cutting her with his knife. He said he then took her in his car to a wooded area and cut her throat saying, "Die, die, die." Several days after their meeting, Vicky Elrod went to the police with this information. The appellant was then arrested.

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Card v. State, 453 So.2d 17, 18-19 (Fla. 1984). The testimony at the resentencing proceeding established these same facts.

Additionally at the resentencing proceeding, the prior testimony of the medical examiner, Dr. Edmund Kielman, who had performed the autopsy of Franklin, was read to the jury.² According to Dr. Kielman's prior testimony, the victim suffered several defensive wounds and had a "very deep cut over her throat." The medical examiner stated that the wound to the victim's throat was approximately six or seven inches in length. The wound was also approximately two-and-one-half inches deep and almost went to the spinal cord. He opined that the perpetrator must have used a considerable amount of force in inflicting the wound to the victim's throat and that the instrument utilized by the perpetrator had to be fairly sharp to go that deep. The medical examiner also observed that the victim had suffered extensive wounds to her hands. The medical expert testified that these were classic defense wounds caused by the person protecting himself or herself from an attack.

In Card's defense, Card's attorney presented the testimony of several members of Card's family, including his mother, brother-in-law, ex-wife, daughter, niece, and brother. They testified about, among other things, Card's difficult childhood, his unstable family environment, his military service, and his achievements in prison. Defense counsel also presented the testimony of a Catholic priest, the director of a Catholic charity, and a Catholic sister. They testified about Card's religious beliefs, his commitment to Catholicism, his artwork, and how Card began writing to school children while in prison in an effort to deter young children from crime.

Defense counsel also presented the testimony of a professor of psychology at the University of Santa Cruz, Dr. Craig Haney, who testified about how he analyzed and evaluated Card's social history in an effort to understand or explain Card's criminal behavior. Doctor Haney opined that given Card's background, which included growing up in poverty, being abandoned by his father prior to birth, and suffering physical and emotional abuse and parental neglect, it was predictable that Card would use drugs and alcohol and engage in behavior that would lead him to prison. Doctor Haney also testified that Card had a good prison record and that, despite Card's past, he had adjusted well to prison life.

At the conclusion of the resentencing proceedings, the jury recommended the death penalty by a vote of eleven to one. In imposing the death penalty, the trial court found five aggravating factors: (1) the murder was committed while the defendant was engaged in the commission of a kidnapping; (2) the murder was committed for the purpose of avoiding or preventing a lawful arrest; (3) the murder was committed for pecuniary gain; (4) the murder was especially heinous, atrocious, or cruel ("HAC"); and (5) the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification ("CCP"). The trial court found no statutory mitigating factors, but did find seven nonstatutory mitigators: (1) Card's upbringing was "harsh and brutal" and his family background included an abusive stepfather (some weight); (2) Card has a good prison record (slight weight); (3) Card is a practicing Catholic and made efforts for other inmates to obtain religious services (some weight); (4) Card was abused as a child (some weight); (5) Card served in the

803 So.2d 619

Army National Guard and received an honorable discharge (some weight); (6) Card has artistic ability (little weight); and (7) Card has corresponded with school children to deter them from being involved in crime (some weight). The trial court found that the aggravating circumstances outweighed the mitigating circumstances and imposed a death sentence

On appeal, Card raises twelve issues with regard to his death sentence.³

III. ANALYSIS

A. RECUSAL OF TRIAL JUDGE

Card argues that Judge Costello, the resentencing judge, improperly denied his motion for recusal because she incorrectly applied the recusal standard for a successor judge when she should have applied the more liberal standards for recusal that apply to an initial judge. There is no question in this case that there was a prior recusal of the first judge. However, Card and the State dispute whether Card's motion to recuse Judge Costello constituted a first or successive recusal motion for purposes of Florida Rule of Judicial Administration 2.160, because the prior judge recused himself "sua sponte" after denying Card's motion to recuse based on a finding that the allegations for recusal were not legally sufficient.⁴

The standards for recusal vary in that in an initial motion, the judge passes only on the legal sufficiency of the allegations and not on the truth of the facts, whereas, a successor judge may pass on the truth of

803 So.2d 620

the facts alleged in support of the motion and need only be disqualified if "he or she is in fact not fair or impartial." Fla. R. Jud. Admin. 2.160(f). In this case, Card does not claim that the trial judge was actually partial. Moreover, we note that the entire motion to disqualify was based on an alleged consultation between a potential State witness, Debra King, and Judge Costello that took place prior to the time Judge Costello became a circuit court judge. However, King never testified at trial. Therefore, the potential basis for recusal never even materialized.

We do not reach the issue of whether in fact Judge Costello properly applied the standards for recusal as a successor judge because we conclude that Card waived any objection on this basis by not raising it at the time Judge Costello ruled on the motion as a successor judge or when the order was entered prior to the commencement of trial.⁵ Defense counsel claims that the specific objection was preserved by raising it in a motion for new trial. However, had defense counsel disputed Judge Costello's status as a successor judge, it was incumbent on him to bring it to the trial judge's attention at the time the order denying the motion for recusal was entered prior to the commencement of trial, rather than waiting until the trial was over and the death penalty imposed. Accordingly, we deny Card relief on this claim.

B. CLOSING ARGUMENT

Card next asserts that the State's closing argument was permeated with improper and inflammatory comment that tainted the jury's recommendation and rendered the sentencing proceeding fundamentally unfair. Card admits that although defense counsel objected to some of the State's improper arguments, defense counsel did not object to others. Nevertheless, Card contends that the cumulative effect of the objected-to and unobjected-to comments deprived Card of a fair penalty phase hearing.

1. PRESERVED CLOSING ARGUMENT CLAIMS

We first examine the arguments that Card properly preserved for appellate review. The prosecutor argued that the jury should not recommend a life sentence because there was no guarantee that Card actually would be imprisoned for life, stating: "And there is nobody [that] can say that life is going, that he is going to serve a life sentence. No one can guarantee you that. No one can predict that." Defense counsel objected and moved for a mistrial. The trial court denied the motion for a mistrial but sustained the objection and provided jurors with a curative instruction,

803 So.2d 621

informing...