Downs v. Moore

• Citation: 801 So.2d 906
• Decision Date: 26 September 2001
• Docket Number: No. SC00-2186.,SC00-2186.
• Parties: Ernest Charles DOWNS, Petitioner, v. Michael W. MOORE, Secretary, Florida Department of Corrections, Respondent.
• Court: United States State Supreme Court of Florida

801 So.2d 906

Ernest Charles DOWNS, Petitioner, v. Michael W. MOORE, Secretary, Florida Department of Corrections, Respondent.

No. SC00-2186.

Supreme Court of Florida.

September 26, 2001.

Rehearing Denied December 3, 2001.

Michael P. Reiter, Capital Collateral Counsel—Northern Region, John P. Abatecola, Chief Assistant CCRC—Northern, and Harry Brody, Assistant CCRC— Northern, Office of the Capital Collateral Counsel—Northern Region, Tallahassee, FL, for Petitioner.

Robert A. Butterworth, Attorney General, and Stephen R. White, Assistant Attorney General, Tallahassee, FL, for Respondent.

PER CURIAM.

Ernest Charles Downs petitions this Court for writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. For reasons expressed below, we deny the petition.

Downs was convicted of first-degree murder and sentenced to death for his part in the 1977 murder of Forrest Jerry Harris, Jr. Although affirmed on appeal, Downs' sentence subsequently was vacated and his case was remanded for a new sentencing proceeding. On appeal following resentencing, during which Downs again was sentenced to death, this Court affirmed the sentence. See Downs v. State, 572 So.2d 895 (Fla.1990)

. The facts in this case are set forth in greater detail in that opinion.

The procedural history of this case is summarized in our recent opinion affirming the trial court's denial of Downs' latest motion for postconviction relief filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. See Downs v. State, 740 So.2d 506 (Fla.1999)

. Downs

now petitions this Court for writ of habeas corpus, alleging twelve claims of ineffective assistance of appellate counsel.¹ We find the claims to be without merit and, therefore, deny the writ.²

ANALYSIS

"Habeas petitions are the proper vehicle to advance claims of ineffective assistance of appellate counsel." Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). The requirements for establishing a claim based on ineffective assistance of appellate counsel parallel the standards announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Wilson v. Wainwright, 474 So.2d 1162, 1163 (Fla.1985)

. Thus, in order to prevail, the "[p]etitioner must show 1) specific errors or omissions which show that appellate counsel's performance deviated from the norm or fell outside the range of professionally acceptable performance and 2) the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result." Id.; see also Rutherford, 774 So.2d at 643; Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000); Groover v. Singletary, 656 So.2d 424, 425 (Fla.1995); Suarez v. Dugger, 527 So.2d 190 (Fla.1988).

However, appellate counsel cannot be considered ineffective under this standard for failing to raise issues that are procedurally barred because they were not properly raised during the trial court proceedings and do not present a question of fundamental error. See Rutherford, 774 So.2d at 643

; Robinson v. Moore, 773 So.2d 1, 4 (Fla.2000); Roberts v. State, 568 So.2d 1255 (Fla.1990) (holding that appellate counsel's failure to raise a claim which was not preserved for review and which does not present a question of fundamental error does not constitute ineffective performance warranting relief). The same is true for claims without merit; appellate counsel cannot be deemed ineffective for failing to raise non-meritorious claims on appeal. See Rutherford, 774 So.2d at 643.

With these principles in mind, we now turn to Downs' ineffective assistance of appellate counsel claims.

Comment on Right to Remain Silent

In his first claim, Downs argues that his Fifth Amendment rights were violated when the prosecutor elicited testimony from Downs about his post-arrest silence. During resentencing, Downs testified that while he had been a part of the conspiracy to kill Harris, he did not kill Harris and was not present at the time of the murder. On cross examination, the prosecutor asked Downs if at the time of his arrest or upon his return to Jacksonville, he told the Jacksonville police officers any of the information he testified to on direct examination. Downs replied that he did not. Downs contends that this question violated his Fifth Amendment right to remain silent. He further contends that the prosecutor compounded this error during closing argument when he commented on the fact that after his arrest, Downs failed to tell the police anything about the circumstances of the offense.³ Downs argues that his appellate counsel rendered ineffective assistance by failing to raise this claim on appeal.

The record reveals, however, that trial counsel did not object to the prosecutor's questions to Downs during cross-examination or to the prosecutor's comment during closing argument. As a result, any error in the State's questioning of Downs was not preserved for appellate review. Because appellate counsel cannot be deemed ineffective for failing to raise an unpreserved claim, see Rutherford, 774 So.2d at 643,

this claim is without merit unless petitioner can demonstrate fundamental error. See Rutherford, 774 So.2d at 646; Robinson, 773 So.2d at 4. "Fundamental error is defined as the type of error which `reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.'" McDonald v. State, 743 So.2d 501, 505 (Fla.1999) (quoting Urbin v. State, 714 So.2d 411, 418 n. 8 (Fla.1998)).

Here, however, the underlying claim does not appear to constitute error, much less fundamental error. Downs argues that the prosecutor's question during cross-examination and his comment during closing argument were improper comments on Downs' post-arrest silence. The U.S. Supreme Court has held that the Due Process Clause of the Fourteenth Amendment prohibits the use by the prosecution of a criminal defendant's post-arrest and post-Miranda⁴ silence for impeachment purposes. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)

. The Court reasoned that "[s]ilence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights." Id. at 617, 96 S.Ct. 2240. Accordingly, the Court found that "it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." Id. at 618, 96 S.Ct. 2240; accord State v. Hoggins, 718 So.2d 761 (Fla.1998) (holding that the Florida Constitution prohibits use of defendant's postarrest, post-Miranda silence as well as post-arrest, pre-Miranda silence).⁵

However, this Court has held that Doyle's prohibition does not apply where the defendant does not invoke his Fifth Amendment privilege against self-incrimination. See Valle v. State, 474 So.2d 796 (Fla.1985),

vacated on other grounds, 476 U.S. 1102, 106 S.Ct. 1943, 90 L.Ed.2d 353 (1986). In Valle, this Court found that where a defendant refuses to answer one question out of many during a lengthy interrogation following the defendant's waiver of his constitutional rights, the State is not precluded from subsequently admitting evidence of the defendant's silence at trial. See id. at 801 (citing Ragland v. State, 358 So.2d 100 (Fla. 3d DCA 1978)).

In the instant case, the State's question obviously was intended to impeach Downs and demonstrate to the jury that Downs' version of events was concocted sometime after his arrest. This questioning would be inappropriate under Doyle if it referred to Downs' post-arrest, post-Miranda silence and Downs had not waived his constitutional rights. However, the record in the instant case reveals that Downs waived his constitutional rights at the time of his arrest because he agreed to talk with the arresting officers. During the resentencing proceeding, Detective Jim Spaulding, one of the officers who arrested Downs in Alabama, testified that he and another officer, David Starling, read Downs his constitutional rights on the trip from Alabama to Florida, during which Downs waived his rights and agreed to talk with police upon their return to Jacksonville.⁶ Based upon this record, we find that Downs waived his constitutional rights and expressed a desire to talk to the police. Accordingly, we find no error with regard to the State's question or comment. Appellate counsel's failure to raise this issue on appeal, therefore, does not constitute deficient performance under Strickland.

Proposed Jury Instructions

In claims two, three and five, Downs argues his appellate counsel was ineffective in failing to challenge the trial court's denial of several proposed jury instructions on mitigating circumstances. He contends that the trial court should have instructed the jury (1) that it could consider mercy during its deliberations (claim two); (2) that it could consider the immunity and leniency received by the codefendants (claim three);⁷ (3) that it could consider doubt about whether Downs was the triggerman (claim three);⁸ and (4) that it could consider the law pertaining to principals of a crime (claim five).⁹ Although the trial court gave the standard jury instruction on mitigating circumstances, Downs argues that the standard jury instructions do not adequately instruct the jury as to how to consider the mitigating factors argued by the defense.

We find each of these claims to be without merit. The trial court gave the standard jury instructions in this case, which included the approved "catch-all" provision for mitigating circumstances. The instruction stated:

Among the mitigating circumstances you may consider if established by the evidence are:

. . . .

4. Any other aspects of the defendant's character or record, and any other circumstances of the offense.

This Court has held that the "catch-all" standard jury instruction on...