Dobbert v. Strickland

• Decision Date: 19 October 1983
• Docket Number: No. 82-5121,82-5121
• Parties: Ernest John DOBBERT, Petitioner-Appellant, v. Charles G. STRICKLAND, Jr., et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1518

718 F.2d 1518

Ernest John DOBBERT, Petitioner-Appellant, v. Charles G. STRICKLAND, Jr., et al., Respondents-Appellees.

No. 82-5121.

United States Court of Appeals, Eleventh Circuit.

Oct. 19, 1983.

Patrick D. Doherty, Gross & Doherty, Clearwater, Fla., for petitioner-appellant.

Carolyn Snurkowski, Asst. Atty. Gen., Tallahassee, Fla., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before RONEY and TJOFLAT, Circuit Judges, and WISDOM ^*, Senior Circuit Judge.

PER CURIAM:

This is an appeal by a Florida state prisoner from a federal district court's denial of habeas corpus relief in a capital case. Petitioner Ernest John Dobbert was convicted of first degree murder of his daughter. Contrary to the recommendation of the advisory sentencing jury, the trial judge sentenced him to death. In the precise words used in his petition for a writ of habeas corpus, Dobbert asserted the following grounds in the federal district court:

1. insufficiency of the evidence;

2. refusal to consider relevant mitigating circumstances;

3. striking aggravating circumstances;

4. refusal to instruct jury on a lesser included offense;

5. the Supreme Court of Florida's improper ex parte consideration of extra-record materials;

6. systematic exclusion of death-scrupled jurors;

7. improper overriding of jury's verdict of life imprisonment;

8. unconstitutionality of trial court overriding jury verdict of life and imposing a sentence of death;

9. improper restriction of mitigating circumstances;

10. refusal to sever counts;

11. improperly admitted prejudicial evidence;

12. improper closing argument;

13. unconstitutional aggravating evidence.

Petition for Writ of Habeas Corpus, Dobbert v. Strickland, 532 F.Supp. 545 (M.D.Fla.1982).

Paraphrased as follows, petitioner asserts seven claims on appeal:

1. The Florida Supreme Court's solicitation and collection of psychiatric, psychological and correctional reports concerning petitioner and other death row inmates during the pendency of their capital appeals violated the rights to due process, effective assistance of counsel, confrontation, and the prohibitions against cruel and unusual punishment and self-incrimination under the Fifth, Sixth, Eighth and Fourteenth Amendments (the so-called Brown issue);

2. The Florida Supreme Court's affirmance of the death sentence after ruling two of the four aggravating circumstances found by the state trial court inapplicable violated the Eighth and Fourteenth Amendments;

3. A. Imposition of the death sentence after the jury's recommendation of life violated the integrity of the jury trial, due process, and the prohibitions against double jeopardy and cruel and unusual punishment;

B. The procedure by which the jury recommendation was overridden violated due process and the prohibition against cruel and unusual punishment under the Eighth and Fourteenth Amendments;

4. The Florida courts refused to give independent weight to mitigating evidence in violation of the Eighth and Fourteenth Amendments;

5. The prosecutor's use of peremptory challenges to remove death-scrupled jurors from the panel was a deprivation of due process and violated the right to have a jury composed of a fair cross-section of the community under the Sixth and the Fourteenth Amendments;

6. The evidence at trial was insufficient to prove beyond a reasonable doubt the element of premeditation required for conviction of murder in the first degree.

Our recent en banc opinion in Ford v. Strickland, 696 F.2d 804 (11th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 201, 76 L.Ed.2d ---- (1983), settled appellate issue one adversely to petitioner. Ford and the recent Supreme Court decision in Barclay v Florida, --- U.S. ----, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983), control the decision as to issue two. Because the remaining contentions fail to present errors of constitutional magnitude, we affirm.

Background

In the spring of 1974, Dobbert was convicted in Circuit Court, Duval County, Florida, of the first degree murder of his nine-year-old daughter, second-degree murder of his seven-year-old son, child torture of his eleven-year-old son, and child abuse of his five-year-old daughter. Only the first degree murder conviction and sentence are challenged in the instant appeal.

Petitioner's conviction and sentence were affirmed by the Florida Supreme Court. Dobbert v. State, 328 So.2d 433 (Fla.1976). The United States Supreme Court granted certiorari on three issues not involved in the instant appeal and decided them all against Dobbert. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). Under the authority of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the Supreme Court of Florida entered an order which vacated petitioner's death sentence and remanded the case to the trial judge for resentencing. The trial judge resentenced Dobbert to death, the Florida Supreme Court affirmed the new sentence, Dobbert v. State, 375 So.2d 1069 (Fla.1979), and the United States Supreme Court denied certiorari. Dobbert v. Florida, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980).

Petitioner joined with 122 other death row inmates in a state habeas corpus petition challenging the Florida Supreme Court's alleged practice of receiving nonrecord information during the pendency of the appeals of capital cases. The Florida Supreme Court dismissed the petition with an extensive opinion. Brown v. Wainwright, 392 So.2d 1327 (Fla.1981). The denial of certiorari by the United States Supreme Court fostered a dissenting opinion. Brown v. Wainwright, 454 U.S. 1000, 102 S.Ct. 542, 70 L.Ed.2d 407 (1981). Dobbert thereafter mounted another collateral attack pursuant to Florida Rule of Criminal Procedure 3.850. Denial of relief was affirmed by the Supreme Court of Florida on January 28, 1982. Dobbert v. State, 409 So.2d 1053 (Fla.1982).

Scheduled for electrocution on February 2, 1982, petitioner filed the petition for writ of habeas corpus that is the basis of the instant appeal on January 27, 1982. The federal district court denied relief, and we granted a stay of execution by order, followed by an opinion. Dobbert v. Strickland, 670 F.2d 938 (11th Cir.1982).

1. The Brown Issue

Lacking specific evidence that such materials were reviewed in his case, Dobbert attacks the Florida Supreme Court's alleged practice of receiving nonrecord materials concerning death row inmates during the pendency of their appeals. Our recent en banc decision in Ford v. Strickland, 696 F.2d at 809-11, considered and rejected this identical claim.

2. Insufficiency of Evidence on Two Aggravating Circumstances

Under the Florida procedure by which a jury renders an advisory verdict as to sentence in a capital case, Dobbert's jury recommended life imprisonment. The trial court, however, sentenced Dobbert to death, finding evidentiary support for four statutory aggravating circumstances. On appeal, the Supreme Court of Florida ruled there was insufficient evidence to support two of the four circumstances: that Dobbert was under sentence of imprisonment when he committed the murder and that he created a great risk of death to many persons. Dobbert v. State, 375 So.2d at 1070. The court upheld the remaining two aggravating circumstances, specifically finding "the murder was committed to avoid lawful arrest and was especially heinous and cruel." Id.

At the time this case was submitted, petitioner argued that where the trial court relied on two aggravating circumstances for which there was insufficient evidentiary support, the Florida Supreme Court's affirmance of his death sentence was unconstitutional under Henry v. Wainwright, 661 F.2d 56 (5th Cir.1981) and Stephens v. Zant, 631 F.2d 397 (5th Cir.1980). Stephens has now been reversed by the Supreme Court, Zant v. Stephens, --- U.S. ----, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), and Henry has been vacated. Wainwright v. Henry, --- U.S. ----, 103 S.Ct. 3566, 77 L.Ed.2d 1407 (1983).

Prior to the recent Supreme Court decisions, this Court had rejected this same basic contention in an en banc opinion, Ford v. Strickland, 696 F.2d at 1261-63, which held our decisions in Stephens and Henry inapplicable to a situation such as this reasoning:

In any event, we think that Stephens and Henry are inapposite to the case at bar. This case involves consideration of neither unconstitutional nor nonstatutory aggravating evidence. That the evidence was insufficient to support two circumstances and one circumstance was based on the same aspect of the crime as another does not suggest that the sentencing court considered any extraneous or improper evidence. The sentencing jury and judge considered only evidence of facts which could properly be considered by them. This case is appreciably different from Stephens because there the jury may have considered evidence that it could not constitutionally consider. In this case, no evidence considered was inappropriate for consideration. The sentencing judge's erroneous classification of that evidence as the aggravating circumstances permitted by statute should not constitutionally infect the sentence. On all of the evidence before him, he reached the determination that the death sentence was appropriate.

In Ford, we upheld against constitutional attack a death sentence even though the trial judge relied on two aggravating circumstances without evidentiary support and one aggravating circumstance based on the same aspect of the crime as another, properly considered an aggravating circumstance.

The United States Supreme Court has also now rejected a similar contention in Barclay v. Florida, --- U.S. ----, 103 S.Ct. 3418, 77 L.Ed.2d 1134 (1983). In Barclay, the Court upheld a death sentence even though the sentencing judge considered a nonstatutory aggravating circumstance in violation of state law. Thus, as in the present case, the trial judge...