Combs v. State

• Decision Date: 18 February 1988
• Docket Number: No. 68477,68477
• Citation: 13 Fla. L. Weekly 142,525 So.2d 853
• Court: Florida Supreme Court
• Parties: 13 Fla. L. Weekly 142 Robert Ike COMBS, Appellant, v. STATE of Florida, Appellee.

Page 853

525 So.2d 853

13 Fla. L. Weekly 142

Robert Ike COMBS, Appellant, v. STATE of Florida, Appellee.

No. 68477.

Supreme Court of Florida.

Feb. 18, 1988.

Rehearing Denied April 27, 1988.

Asa D. Sokolow, Marvin R. Lange and Richard L. Claman, New York City, for appellant.

Robert A. Butterworth, Atty. Gen., and Michael J. Kotler and James A. Young, Asst. Attys. Gen., Tampa, for appellee.

OVERTON, Justice.

Robert Ike Combs appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion to vacate his conviction and sentence of death. We have jurisdiction. Art. V., § 3(b)(1), Fla. Const. In summary, we find that the United States Supreme Court's recent decision in Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), requires us to grant Combs a new sentencing proceeding before a new jury. We reject, however, Combs' contention that the portion of Florida's standard jury instruction which informs jurors that their recommendation is "advisory," together with similar comments made by the prosecutor to that effect, violates Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). In so holding, we refuse to apply the Eleventh Circuit's decisions in Mann v. Dugger, 817 F.2d 1471, reh'g granted and opinion vacated, 828 F.2d 1498 (11th Cir.1987), and Adams v. Wainwright, 804 F.2d 1526 (11th Cir.1986), modified, 816 F.2d 1493 (11th Cir.1987), petition for cert. filed, 56 U.S.L.W. 3094 (U.S. Jul. 20, 1987) (No. 87-121). We fully address this latter issue because it affects the retrial of this case and the criticized jury instruction is part of the standard jury instructions that have been used in almost every Florida death-penalty case since 1976.

Combs was convicted in April, 1980, for a drug-related execution murder. This Court affirmed the conviction and sentence in Combs v. State, 403 So.2d 418 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982). A detailed factual statement is set forth in that opinion. Combs subsequently filed this 3.850 motion attacking both his conviction and sentence of death on a number of grounds. The trial court summarily denied the motion. In this appeal, Combs has supplemented his grounds for relief to include those which rely on two recent United States Supreme Court decisions. As grounds for relief Combs now contends: (1) he was denied effective assistance of counsel in both the trial and penalty phases; (2) the trial court improperly restricted the jury's consideration of mitigating circumstances and the jury was improperly instructed in the sentencing phase of the trial in violation of Hitchcock v. Dugger; and (3) the jury was improperly led to believe that its sentencing verdict would carry very little weight in violation of Caldwell v. Mississippi.

Ineffective Assistance of Counsel

With regard to the guilt phase of the trial, Combs suggests his counsel failed to properly investigate and present certain evidence concerning the relationship between the surviving victim and the deceased victim and, in addition, failed to request an intoxication instruction. We reject Combs' contention that trial counsel's performance in the guilt phase of his trial was so ineffective that it prejudiced him and denied him a fair trial. We find the record clearly does not establish ineffective assistance of counsel for any of the alleged grounds under the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We note that much of the evidence Combs contends should have been discovered about the victims would have been inadmissible hearsay, and that the presentation of an intoxication defense would have been inconsistent with Combs' testimony that he was at home at the time of the murder and did not commit the offense. Because we direct a new sentencing hearing, we need not address the contention of ineffective assistance of counsel in the sentencing phase.

Consideration of Nonstatutory Mitigating Circumstances

Combs argues that consideration of nonstatutory mitigating circumstances by both the jury and the court was improperly restricted in the same manner as expressed by the United States Supreme Court in Hitchcock. The issue is identical to that presented in Thompson v. Dugger, 515 So.2d 173 (Fla.1987).

In the instant case, the jury was instructed in a nearly identical manner as in Hitchcock. Further, the trial judge's order imposing the death sentence contained the following findings: "This Court ... heard and considered testimony and evidence ... regarding the statutorily enumerated aggravating and mitigating circumstances which are to be solely and alone weighed by the court in arriving at its decision." (Emphasis added.)

We have recently determined that the United States Supreme Court's consideration of Florida's capital sentencing statute in Hitchcock represents a sufficient change in the law to defeat the argument that Combs should be denied relief on the basis of a procedural default. See White v. Dugger, No. 71,184 (Fla. Jan. 1, 1988); Foster v. State, 518 So.2d 901 (Fla.1987); Downs v. Dugger, 514 So.2d 1069 (Fla.1987); Thompson v. Dugger, 515 So.2d 173 (Fla.1987). Consistent with our decision in these cases, we find that Combs' death sentence was imposed in violation of Lockett and Hitchcock, and he is therefore entitled to a new sentencing hearing before a new jury. We find the principles of harmless error do not apply to the facts of this case.

The Jury's Advisory Role

We specifically address this issue because it affects the resentencing proceeding and because we are deeply disturbed about the interpretation of Florida's death penalty process and the application of Caldwell by the United States Court of Appeals for the Eleventh Circuit in its decisions in Mann v. Dugger, and Adams v. Wainwright relied on by Combs in this proceeding.

Combs contends that the prosecutor minimized the jury's role and misstated Florida law by advising the jurors during voir dire and in final argument that their decision would be advisory, and that the ultimate decision rested with the trial judge. Combs asserts the trial judge erred under Caldwell in failing to instruct the jury that a life sentence carries substantial weight and that a jury recommendation of life could be overridden only if virtually no reasonable person could differ. He further asserts the trial judge erred in instructing the jury from our standard jury instructions that the "final decision as to what punishment should be imposed rests solely with the judge of this court." Combs relies on the Eleventh Circuit decisions in Mann and Adams to support this contention. We reject this argument and find Caldwell inapplicable to this case.

In Caldwell, the United States Supreme Court was considering the application of the Mississippi death penalty procedure which is dissimilar to that utilized by Florida. Under the Mississippi procedure, the jury makes the final determination of whether to impose the sentence of life or death. That sentence cannot be overridden by the trial judge and is subject to review only by the Supreme Court of Mississippi. In Caldwell, the prosecutor, in his final argument, commented: "Now, they would have you believe that you're going to kill this man and they know--they know that your decision is not the final decision. My God, how unfair can you be? Your job is reviewable. They know it." 472 U.S. at 325, 105 S.Ct. at 2637. In explaining the Mississippi procedure, the United States Supreme Court quoted with approval from one of the dissenting opinions which stated: "The [mercy] plea is made directly to the jury as only they may impose the death sentence. Under our standards of appellate review mercy is irrelevant." Id. at 331, 105 S.Ct. at 2640 (emphasis added). The United States Supreme Court held that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Id. at 328-29, 105 S.Ct. at 2639 (emphasis added). At the outset, we hasten to point out that in Caldwell, unlike the instant case, the defendant had objected to the Mississippi prosecutor's comment. The Caldwell opinion does not hold that the misleading statement concerning the jury's responsibility constituted fundamental error. Moreover, the Florida procedure is clearly distinguishable from the Mississippi procedure. The Florida procedure does not empower the jury with the final sentencing decision; rather, the trial judge imposes the sentence. We recognize that the cited Eleventh Circuit opinions in Mann and Adams appear to support Combs' contentions. In Mann, that court explained our sentencing procedure in the following manner:

After a jury determination of guilt, a separate sentencing hearing is held before the same jury who then renders a recommended sentence based on their assessment of the aggravating and mitigating factors. The trial judge then weighs the aggravating and mitigating factors and imposes a final sentence. In making that determination, the trial court must give great weight to the jury's recommendation, and may reject the jury's recommendation only if the facts are "so clear and convincing that virtually no reasonable person could differ." Consequently, the jury plays a "critical" role in determining the appropriateness of death.

817 F.2d at 1482 (citations omitted). The Mann panel found that the prosecutor improperly instructed the jury during voir dire examination that: (1) their sentence recommendation was advisory; (2) the ultimate responsibility for imposition of the sentence rests with the trial judge; (3) and the trial judge would have an opportunity to learn more about the defendant before he imposed a sentence. Further, that court expressly found improper the following portions of our standard jury instruction:

Final...