Dobbert v. State

• Decision Date: 28 January 1982
• Docket Number: No. 61606,61606
• Parties: Ernest John DOBBERT, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1053

409 So.2d 1053

Ernest John DOBBERT, Jr., Appellant, v. STATE of Florida, Appellee.

No. 61606.

Supreme Court of Florida.

Jan. 28, 1982.

Patrick D. Doherty of Gross & Doherty, Clearwater, for appellant.

Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

On January 6, 1982, Governor Graham signed a death warrant for Ernest John Dobbert, and on January 7, 1982, Dobbert filed a motion to vacate his death sentence. He later filed an addendum to his motion to vacate, and after a hearing, the trial court denied Dobbert's motion. Dobbert now appeals the denial of his motion to vacate and requests this Court to enter a stay of execution. Finding that the trial court correctly denied Dobbert's motion to vacate, we affirm. We also deny his motion for stay of execution.

In April 1974, Dobbert was convicted of the first-degree murder of his nine-year-old daughter and was sentenced to death for this murder although the jury recommended life imprisonment. He was also convicted at that time of the second-degree murder of his seven-year-old son, child torture of another son, and child abuse of another daughter. His convictions and sentences were affirmed by this Court. Dobbert v. State, 328 So.2d 433 (Fla.1976). Our judgment was affirmed by the Supreme Court of the United States. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

Subsequently, this Court entered an order pursuant to Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), asking the trial judge whether he had imposed sentence on the basis of any information not known to Dobbert. Dobbert asserted he had not been furnished a copy of the presentence investigation report. By order entered March 31, 1978, we relinquished jurisdiction to the trial court with directions to vacate the death sentence and to give Dobbert an opportunity to respond to this report. After giving Dobbert another plenary sentencing hearing, the trial court resentenced him to death. He appealed, and we again affirmed the sentence of death. Dobbert v. State, 375 So.2d 1069 (Fla.1979). Certiorari was denied by the Supreme Court of the United States. 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980). Dobbert was originally scheduled to be executed on July 22, 1981, but the Supreme Court stayed execution pending its disposition of writ of certiorari from our decision in Brown v. Wainwright, 392 So.2d 1327 (Fla.1981), to which Dobbert was a party. Certiorari was denied by the Supreme Court on November 2, 1981. Brown v. Wainwright, --- U.S. ----, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981).

In his motion to vacate his death sentence, Dobbert alleged as grounds for relief that he was denied his sixth amendment right to a fair trial because the State, in the Fourth Judicial Circuit, had systematically exercised peremptory challenges to exclude persons who had scruples against imposition of the death penalty; that the Supreme Court of Florida may have improperly considered psychiatric examinations in some death appeals; that the Supreme Court of Florida's construction of the aggravating circumstance of "heinous, atrocious, or cruel," is overbroad, thereby rendering its application unconstitutional; that the trial court considered nonstatutory aggravating factors; and that the imposition of the death penalty in his case constituted cruel and unusual punishment. In an addendum to his motion to vacate, Dobbert alleged that the trial court erred in imposing the death sentence after a jury recommendation of life.

In denying Dobbert's motions, the trial court held, as to his sixth amendment claim, that neither the record nor pleadings take this case beyond the scope of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), and that Dobbert did not demonstrate prejudice. Relative to our alleged consideration of psychiatric reports, the trial court held that this point was resolved adversely to Dobbert in Brown v. Wainwright. The trial court also held that the validity of the aggravating circumstance of heinous, atrocious, or cruel had been addressed by this Court in the direct appeals, that a reading of the trial court's sentencing order belied Dobbert's contention that it had considered nonstatutory aggravating factors, and that this Court had already determined that imposition of the death penalty in Dobbert's case does not constitute cruel and unusual punishment. As to the issue raised in the addendum, the trial court ruled that Dobbert was not entitled to post-conviction review of the jury override.

Before this Court, Dobbert initially contends that he was denied due process of law and his sixth amendment right to a jury composed of a fair cross section of the community because, he alleges, a study conducted by Professor Winick of the University of Miami School of Law shows a pattern of abuse by the state attorney's office in the exercise of its peremptory challenges. He claims that the study shows that the state attorney's office in the Fourth Circuit has systematically used its peremptory challenges to excuse prospective jurors who are "death scrupled," that is, those who expressed some opposition to the death penalty. Professor Winick testified at the hearing on the motion to vacate that he had conducted an empirical study of the jury selection practices by prosecutors in capital cases in the Fourth Circuit from 1974 through 1978 to determine how the prosecutors used their peremptory challenges in the formation of a capital jury. He claimed that the voir dire of 1,103 prospective jurors in twenty-seven cases was examined. Of these 1,103, 146 indicated disagreement with or problems with the death penalty and were classified by Professor Winick as "death scrupled." Of the 1,103, 587 were subject to prosecutorial peremptory challenge, and of this 587, 51 were, according to Professor Winick, "death scrupled." Of these 51, 13 actually served on a jury.

Dobbert's argument that he was denied his right to due process of law by the State's exercise of its peremptory challenges is predicated on an attempted synthesis of Swain v. Alabama and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

In Swain v. Alabama, a Negro convicted of rape by an all-white jury appealed his conviction, contending that there had never been a Negro on the petit jury in either a civil or criminal case in Talladega County, Alabama, and that in criminal cases prosecutors had systematically exercised their strikes to achieve this result. Swain had objected to the jury selection in the trial court immediately after the jury was selected and had moved to have the jury declared void on fourteenth amendment grounds. The Supreme Court held that the striking of Negroes in a particular case is not a denial of equal protection. It dealt at great length with the nature, history, and importance of the right to exercise peremptory challenges which it described as an integral part of trial by jury. The peremptory challenge, it explained, is one exercised without a reason stated, without inquiry, and without being subject to the court's control. It permits rejection for real or imagined partiality not easily designated or demonstrated and is not infrequently exercised on grounds not normally thought to be relevant to legal proceedings, such as race, religion, nationality, or affiliations of people summoned. This is the nature of the peremptory challenge, and this is as it should be to guarantee the fairness of the trial by jury. The Supreme Court further explained:

In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor's challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterward. The prosecutor's judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity. And a great many uses of the challenge would be banned.

In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it.

380 U.S. at 221-22, 85 S.Ct. at 836-37.

The Supreme Court, however, viewed the broader issue in Swain relating to the alleged systematic use over a period of years of peremptory challenges to excuse jurors on the basis of race in a somewhat different light. Although finding that the prosecutor has broad...