Copeland v. Wainwright

• Decision Date: 09 April 1987
• Docket Number: 69482,Nos. 69428,s. 69428
• Citation: 11 Fla. L. Weekly 537,505 So.2d 425
• Parties: 11 Fla. L. Weekly 537, 12 Fla. L. Weekly 178 Johnny COPELAND, Petitioner, v. Louie L. WAINWRIGHT, Secretary of the Florida Department of Corrections, Respondent. Johnny COPELAND, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 425

505 So.2d 425

11 Fla. L. Weekly 537, 12 Fla. L. Weekly 178

Johnny COPELAND, Petitioner, v. Louie L. WAINWRIGHT, Secretary of the Florida Department of Corrections, Respondent.

Johnny COPELAND, Appellant, v. STATE of Florida, Appellee.

Nos. 69428, 69482.

Supreme Court of Florida.

April 9, 1987.

Joyce Davis, Tallahassee, and Jay Topkis and Eric M. Freedman, of Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for petitioner/appellant.

Robert A. Butterworth, Atty. Gen., and Mark C. Menser and Henri C. Cawthon, Asst. Attys. Gen., Tallahassee, for respondent/appellee.

PER CURIAM.

These proceedings are before the Court on a petition for habeas corpus and an appeal from the denial of a motion to vacate judgment and sentence. Petitioner is a state prisoner under sentence of death. The Governor of the State of Florida issued a warrant directing that the sentence be carried out. In connection with his petition and his appeal, petitioner sought a stay of the scheduled execution of sentence. This Court determined that it was not possible to give full and fair consideration to petitioner's claims on an expedited basis without granting a stay. Therefore we granted a stay of execution and directed the parties to file appellate briefs. Having carefully considered the briefs, we find that appellant's claims have no legal merit and therefore deny the petition for habeas corpus, affirm the denial of post-conviction relief, and dissolve the previously granted stay of execution.

On appeal of the trial court's summary denial of his motion for post-conviction relief, Copeland argues a number of issues. We will briefly address each one.

Appellant argues that he was denied the right to a fair trial by the denial of his motion for change of venue, which was grounded on allegations of prejudicial pretrial publicity and general community knowledge and prejudice. As this Court's opinion on Copeland's previous appeal clearly shows, this issue was argued there and decided. We upheld the judgment against this challenge. Copeland v. State, 457 So.2d 1012 (Fla.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2051, 85 L.Ed.2d 324 (1985). Matters that have been decided on an appeal from a previous judgment cannot be relitigated by motion for post-conviction relief under rule 3.850. Johnson v. Wainwright, 463 So.2d 207 (Fla.1985); O'Callaghan v. State, 461 So.2d 1354 (Fla.1984); Foster v. State, 400 So.2d 1 (Fla.1981). Therefore the trial court's summary denial of this ground of the motion as procedurally barred was proper.

Appellant argues that the process by which he was sentenced to death was deficient under constitutional principles so that his sentence of death should be vacated for a new sentencing proceeding. He asserts that the jury that found him guilty and then recommended a sentence of death was not permitted to consider nonstatutory mitigating circumstances. The sentencing process, appellant argues, thus violated constitutional principles announced in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Appellant relies on Harvard v. State, 486 So.2d 537 (Fla.), cert. denied, 479 U.S. 863, 107 S.Ct. 215, 93 L.Ed.2d 144 (1986), where this Court recognized that the Florida death penalty sentencing law could previously have been read to limit the consideration of mitigating factors to those circumstances listed in the statute. However, our Harvard decision makes clear that by the time of the decision in the case of Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979), the Florida statute had clearly been construed to permit consideration of nonstatutory mitigating circumstances, consistent with the dictates of Lockett. Thus, at the time of appellant's trial and sentencing, any confusion in the law had been resolved and the matter clarified. If defense counsel at trial had perceived any injury or prejudice in the instructions given to the jury concerning the consideration of mitigating circumstances, he could have raised the issue by appropriate motion, objection, or request for alternate instructions based on Lockett and Songer. Thus the argument that improperly restrictive instructions were given could have been raised at trial and, had no appropriate relief been given by the trial judge, argued on appeal. Matters that could have been raised on appeal are not proper grounds for relief by means of a rule 3.850 motion. Maxwell v. Wainwright, 490 So.2d 927 (Fla.) cert. denied, 479 U.S. 972, 107 S.Ct. 474, 93 L.Ed.2d 418 (1986); Armstrong v. State, 429 So.2d 287 (Fla.), cert. denied, 464 U.S. 865, 104 S.Ct. 203, 78 L.Ed.2d 177 (1983). Therefore the trial court was correct in summarily denying this ground of the motion as procedurally barred. Moreover, the record of the original trial shows that the defense was allowed to present evidence of mitigating factors not strictly related to any of the statutory list of mitigating circumstances. The reason there was no objection to the court's instruction based on the statutory list only is probably because the defense did not feel the jury was restricted or perceive any prejudice.

Next appellant argues that there were statements made by the judge and the prosecutor at the trial in the presence of prospective jurors that tended to minimize the seriousness of the jury's role in capital sentencing in violation of constitutional principles as expressed in Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). There it was 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 real responsibility for determining whether the death sentence is proper rests elsewhere.

First we note that most of the judge's statements appellant refers to were not made as formal instructions to the jury that actually heard the case, but were informal comments made to the prospective jurors during the process of jury selection. The judge and the attorneys were trying to explain the two phases of the trial and the separate advisory sentencing determination the jury might be called upon to make if the defendant were found guilty of a capital offense. Defense counsel did not object to any of these comments on the ground that they erroneously minimized the importance of the jury's sentencing role. All the comments themselves, seen in proper context, were accurate. See Spaziano v. State, 433 So.2d 508 (Fla.1983), aff'd, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984).

Appellant argues that the lack of objection at trial and argument on appeal does not preclude consideration of the issue now because Caldwell v. Mississippi was a fundamental change in the constitutional law of capital sentencing thus creating a new legal right that may form the basis for post-conviction litigation. We find that this contention is without merit. The extreme importance of the jury's sentencing recommendation under our capital felony sentencing law has long been recognized, having emerged from early judicial construction of the statute. McCaskill v. State, 344 So.2d 1276 (Fla.1977); Chambers v. State, 339 So.2d 204 (Fla.1976); Thompson v. State, 328 So.2d 1 (Fla.1976); Tedder v. State, 322 So.2d 908 (Fla.1975); Taylor v. State, 294 So.2d 648 (Fla.1974). Thus if defense counsel at trial had believed that the prosecutor and judge were denigrating the jury's role to his client's prejudice, he could have objected and received corrective action based on the well known Tedder rule. The matter could then have been argued on appeal in the absence of adequate corrective action by the trial court. The lack of objection at trial followed by argument on appeal constitutes a waiver of the objection. The trial court was correct in summarily denying this ground of the motion as procedurally barred.

Moreover, the record shows that the formal instructions given to the jury at the sentencing phase of the trial properly and adequately "stressed the significance of the jury's recommendation and the seriousness of the decision they were being asked to make." Pope v. Wainwright, 496 So.2d 798, 805 (Fla.1986). Thus there was no Caldwell error committed at appellant's trial.

Next appellant argues that it was improper to sentence him to death under the principle announced in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). This argument was made in Copeland's previous appeal to this Court and was found to be without merit as we affirmed the death sentence against this challenge. Copeland v. State, 457 So.2d at 1019. As cases previously cited show, a motion for post-conviction relief cannot be used to reargue matters finally resolved in an earlier appeal. Thus this claim is not cognizable and was properly denied by the trial court in a summary fashion. The following brief discussion will demonstrate clearly that the matter has been previously determined and cannot be reconsidered even though appellant candidly seeks such reconsideration.

In Enmund, the United States Supreme Court held that a robbery accomplice who was not present at or directly involved in the murders, but who had been found guilty of first-degree murder under the felony-murder statute, could not be subjected to a death sentence "in the absence of proof that Enmund killed or attempted to kill, and regardless of whether Enmund intended or contemplated that life would be taken." Enmund v. Florida, 458 U.S. at 801, 102 S.Ct. at 3378-79. In responding to appellant's Enmund argument...