Cave v. State, 72637

Decision Date01 July 1988
Docket NumberNo. 72637,72637
Citation529 So.2d 293,13 Fla. L. Weekly 455
Parties13 Fla. L. Weekly 455 Alphonso CAVE, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Bruce M. Wilkinson, Stuart, and Andres Valdespino, New York City, for appellant.

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

PER CURIAM.

The appellant is a Florida prisoner who was convicted of first-degree murder, armed robbery, and kidnapping and, consistent with the jury recommendation, sentenced to death. We affirmed in Cave v. State, 476 So.2d 180 (Fla.1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986). A death warrant has been signed and execution set for the week beginning July 6, 1988. Appellant petitioned the trial court for post-conviction relief under Florida Rule of Criminal Procedure 3.850. He now appeals the denial of relief and asks for a stay of his execution. We have jurisdiction, article V, section 3(b)(1), Florida Constitution. We affirm the denial of rule 3.850 relief and deny the petition for a stay.

Appellant presented twelve claims to the trial court: (1) the state improperly threatened additional charges if he invoked his constitutional right to testify; (2) he did not receive effective assistance of trial counsel; (3) the state improperly suggested to the jury, contrary to the evidence, that he was the actual killer of the victim; (4) the trial court improperly refused to allow questioning of the jurors following the advisory sentence; (5) the trial court improperly excluded prospective jurors in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); (6) the trial court improperly admitted into evidence portions of a codefendant's statement; (7) the trial court improperly admitted his confession; (8) the trial court improperly denied jury instructions requested by him; (9) the trial court improperly instructed the jury on the advisory sentence; (10) the state and court improperly diminished the role and responsibility of the jury with respect to the advisory sentence; (11) the imposition of the death penalty was improper because the crime was not committed for pecuniary gain and was not heinous, wicked and cruel; and (12) the imposition of the death penalty violated Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

The trial court found that eleven of these claims were procedurally barred and that only claim two, ineffective assistance of trial counsel, was cognizable under rule 3.850. By its own terms, rule 3.850 provides that it

does not authorize relief based upon grounds which could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence.

We agree with the trial court that these eleven claims were cognizable only on direct appeal and, indeed, eight of them were presented and disposed of on direct appeal. Cave. Although all eleven are procedurally barred, claims three and ten merit additional comment. Concerning claim three, appellant alleges that the prosecution in its closing argument during the guilt phase improperly argued to the jury that he was the actual killer ("shooter") of the victim even though it argued in the separate, individual trials of his three cohorts that each of them was the actual killer. Appellant urges that such argument was inconsistent with the evidence and inconsistent with professional ethics and the prosecutor's responsibility to provide a fair trial. Moreover, appellant urges, such prosecutorial misconduct could only be discovered after all four trials were conducted and appellate counsel could not be expected to raise, or even be aware of, this issue on direct appeal. Whatever merit this argument might have in a hypothetical case, and we express no opinion on the question, it has no merit under the facts of this case. Appellant was one of four defendants who were convicted in separate trials of first-degree felony murder in the robbery, abduction, and murder of a convenience store clerk. During the state's closing argument, the prosecutor made the following statement to the jury:

And I submit to you that regardless of whether Alphonso Cave pulled the trigger or used the knife, he's just as guilty as who did, as who did [sic]. He was there. He was involved. And the only statement you have that he didn't pull the trigger was his own self-serving statement, that after he heard Bush's statement implicating him "I better make the best possible statement now on my own behalf." He's the only one at that point that tells you he didn't pull the trigger.

Who had the gun from the beginning? Alphonso Cave. Who had the gun in the store: Alphonso Cave. Who put her in the back seat? Alphonso Cave. Who took her out of the back seat? Alphonso Cave. Who had the gun? And who was outside with Frances Slater? Alphonso Cave. (Emphasis added.)

In his presentation to this Court, appellant omits the underlined portion above and represents that the remainder of the quote is a deliberate mischaracterization by the prosecutor of the known facts which was intended to improperly prejudice the jury in its later deliberations on the advisory sentence. We disagree. First, the mischaracterization appears to be in appellant's highly selective editing of the statement. Second, the statement taken in full and in context does not argue to the jury that Cave should be found guilty because he was the actual "shooter." It argues exactly the opposite: Cave should be found guilty because he was a full participant in a felony murder regardless of which of the four participants did the actual shooting. This is made abundantly clear when the prosecutor's full closing argument is considered. Throughout the argument, before and after the above quote, the prosecutor repeatedly stressed to the jury its duty to follow the law on felony murder that all participants in the underlying felony are equally guilty of any murder that occurs, even accidentally, regardless of who did the actual killing. Under the evidence adduced in this case, and the state could not properly argue on evidence adduced in other trials, it was not clear who did the shooting. The last thing the state wanted the jury to believe was that the state had the burden of showing that Cave was the actual killer. Indeed, the state's emphasis on the irrelevancy of the question was in response to defense counsel's repeated misstatements of the law on felony murder in her closing argument. 1 There is no merit in appellant's argument of prosecutorial misconduct nor that the issue is not procedurally barred.

On claim ten, appellant argues that the jury's role was improperly denigrated in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), and that this claim is not procedurally barred because Caldwell represents a change in law occurring since trial and direct appeal. We begin by noting that Caldwell was decided June 11, 1985, that our Cave decision on direct appeal was not issued until August 30, 1985, and did not become final until October 21, 1985, and that the United States Supreme Court did not deny certiorari until June 9, 1986. In view of this chronology, Caldwell does not represent new law to this case whatever its applicability may be otherwise. Second, we have previously held that Caldwell is distinguishable from the Florida procedure which treats the jury's recommendation as advisory only and places the responsibility for sentencing on the trial judge. Advising the jury that its sentencing recommendation is advisory only is an accurate statement of Florida law. Combs v. State, 525 So.2d 853 (Fla.1988); Grossman v. State, 525 So.2d 833 (Fla.1988). Third, we have previously held that Caldwell does "not represent a sufficient change in the law to overcome a procedural bar," Demps v. State, 515 So.2d 196, 197 (Fla.1987). See also, Doyle v. State, 526 So.2d 909 (Fla.1988); Mitchell v. State, 527 So.2d 179 (Fla.1988); Tafero v. Dugger, 520 So.2d 287 (Fla.1988); Phillips v. Dugger, 515 So.2d 227 (Fla.1987). The claim here is procedurally barred. Appellant nevertheless argues that the United States Court of Appeals for the Eleventh Circuit has taken a contrary view of Caldwell and that we should stay the execution here until the Supreme Court completes its review of Adams v. Dugger, 804 F.2d 1526 (11th Cir.1986), modified, 816 F.2d 1493 (11th Cir.1987), cert. granted, 485 U.S. 933, 108 S.Ct. 1106, 99 L.Ed.2d 267 (1988). We decline to do so. Even if we were inclined to adopt the Eleventh Circuit's contrary reading of Florida law, the jury here was told clearly by the trial judge, the prosecutor, and defense counsel that its recommendation was entitled to great weight and was a critical part of the capital sentencing process. There was no denigration of the jury role such as that referred to in Mann v. Dugger, 844 F.2d 1446 (11th Cir.1988). Under the circumstances here, even the Eleventh Circuit reading of Florida law recognizes that the jury has not been misled or its sense of responsibility diminished. Stewart v. Dugger, 847 F.2d 1486 (11th Cir.1988); Harich v. Dugger, 844 F.2d 1464 (11th Cir.1988).

We turn now to appellant's claim of ineffective trial counsel. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a claimant asserting ineffective counsel faces a heavy burden. He must first identify the specific omission and show that counsel's performance falls outside the wide range of reasonable assistance. In determining whether this has occurred, courts must eliminate the distorting effects of hindsight by evaluating the performance from counsel's perspective at the time and must grant a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. The burden is on the claimant to show that counsel was...

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