Engle v. Dugger
| Decision Date | 15 January 1991 |
| Docket Number | 74902,Nos. 74787,s. 74787 |
| Citation | 16 Fla. L. Weekly 123,576 So.2d 696 |
| Parties | 16 Fla. L. Weekly 123 Gregory Scott ENGLE, Petitioner, v. Richard L. DUGGER, etc., Respondent. Gregory Scott ENGLE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Larry Helm Spalding, Capital Collateral Representative, Billy H. Nolas, Chief Asst. CCR, and Thomas H. Dunn, Judith J. Dougherty and Josephine L. Holland, Staff Attys., Office of the Capital Collateral Representative, Tallahassee, for petitioner/appellant.
Robert A. Butterworth, Atty. Gen., and Mark C. Menser, Asst. Atty. Gen., Tallahassee, for respondent/appellee.
Gregory Scott Engle was convicted of the first-degree murder of Eleanor Tolin. According to the record, Engle, together with Rufus Stevens, kidnapped Ms. Tolin from a convenience store, took her to a wooded area, raped her, strangled her, and stabbed her to death. The trial judge overrode the jury's recommendation of life imprisonment and sentenced Engle to death. In Engle v. State, 438 So.2d 803 (Fla.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430 79 L.Ed.2d 753 (1984), this Court affirmed the conviction but vacated the sentence and remanded for resentencing before the trial judge. On remand, the trial judge again sentenced Engle to death. This Court affirmed that sentence in Engle v. State, 510 So.2d 881 (Fla.1987), cert. denied, 485 U.S. 924, 108 S.Ct. 1094, 99 L.Ed.2d 256 (1988).
Following the governor's issuance of a death warrant, Engle filed a motion for postconviction relief. The trial court entered a summary denial of the motion, and Engle now appeals the order of denial. He has also filed in this Court a petition for habeas corpus. We have jurisdiction. Art. V, §§ 3(b)(1), (9), Fla. Const. Pending the disposition of the appeal and the petition, we granted Engle's request for stay of execution.
The summary denial of the motion to vacate was erroneous as a matter of law and fact. The disposition of this claim depends upon the sufficiency of Engle's allegations. These will be addressed in the discussion of the remaining claims.
The jury override resulted in an arbitrarily, capriciously, and unreliably imposed sentence of death. This claim is procedurally barred because it was rejected in the appeal from Engle's resentencing. Further, the contention that the trial judge should have granted Engle's motion for disqualification should have been raised at that time. The judge's comments in the course of recusing himself from hearing the current motion for postconviction relief do not provide a basis to conclude that he did not impartially conduct the resentencing proceeding.
Whether the prosecution knowingly presented false evidence. This claim is based on the contention that Dr. Floro, the medical examiner, testified that he found more blood in the victim's vagina than his autopsy report indicated. Engle says that this affected his conclusion that the victim was alive at the time her vagina was mutilated, a fact which is pertinent to the finding that the murder was heinous, atrocious, and cruel. This allegation does not constitute the presentation of false evidence by the state and provides no basis for postconviction relief.
Whether the state withheld material and exculpatory evidence. This claim is predicated upon the refusal of the state attorney and the sheriff to accede to Engle's request for disclosure of the records pertaining to his prosecution. This claim is well taken. Recently, this Court in State v. Kokal, 562 So.2d 324 (Fla.1990), held that such records were subject to disclosure once the conviction and sentence had become final.
Engle was denied the effective assistance of his trial counsel in several particulars: 1
(a) Failure to move for suppression of statements on the premise they were obtained following an illegal arrest at his home without a warrant. A similar argument was rejected in Stevens v. State, 552 So.2d 1082 (Fla.1989). The case upon which Engle relies, Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), was not decided until after Engle's trial, and his counsel could not have reasonably foreseen this result. The police had probable cause to arrest Stevens when Nathan Hamilton told the police that he and Engle were the killers. Further, even if Payton were deemed applicable, there were significant exigent circumstances for the police to arrest Engle in his house without a warrant. Hamilton would only fully implicate the killers if the police first took his wife and child into protective custody. When the police and Hamilton went to his trailer for that purpose, Stevens and others were there. Thus, the police had reason to believe that Stevens would warn Engle. In fact, the record reflects that Stevens did tell Engle that Hamilton was implicating Engle in the murder.
(b) Failure to object to a witness's statement that Stevens had said that the stabbing had been done with Engle's knife. The testimony to which Engle refers actually occurred during cross-examination when Hamilton was asked if Stevens had told him to get the knife from Engle. Even if it could be said that defense counsel should have asked the court to strike the nonresponsive hearsay statement, such failure could not have affected the outcome of the case. Hamilton had already given the following clearly admissible testimony on direct examination:
Q. Mr. Hamilton, directing your attention back to Sunday night, March 18, 1979, you were watching the movie "Zoro" with the defendant, do you recall what if anything you said to the defendant during that conversation?
A. Yes, sir.
Q. What did you say?
A. I told him that Rufus Stevens had told me that his knife is what it was done with and he threw me his knife and said do you see any blood on my knife. I said no because I didn't see any blood on his knife. Then, I asked him if he thought it was worth a lousy fifty- or sixty-dollar robbery to take a girl out of a store and kill her and he said no, he didn't.
Then, I asked him why they did it. He said that they got her out of the store, away from a telephone, got her out into the country, Rufus Stevens went crazy and started saying she's going to identify us, she's going to identify us.
(c) Failure to investigate and to request a Richardson 2 hearing. Engle claims that the record shows that counsel failed to request a Richardson hearing with respect to a certain kitchen knife that was identified by Detective Parmenter. The record does not reflect any discovery violation which would suggest the need for requesting a Richardson hearing.
(d) Failure to adequately cross-examine the medical examiner. This contention relates once again to Dr. Floro's conclusion that the victim was alive when her vagina was mutilated. As noted by the trial judge, the record reflects that defense counsel had adopted a tactical approach not to question the medical examiner's conclusions in order not to inflame the jury. The limited cross-examination of Dr. Floro did not constitute ineffective assistance of counsel.
(e) Failure to object to a jury instruction. Engle claims that counsel should have objected to a jury instruction which he says had the effect of directing a finding of premeditation as a matter of law. The subject jury instruction did not direct a finding of premeditation as a matter of law but rather pointed out that where felony murder is proven, the requisite premeditation is presumed to exist for purposes of a conviction for first-degree murder. This instruction did no more than to point out that first-degree murder can be proven either by way of premeditation or felony murder. Counsel was not ineffective for failing to object to this instruction.
(f) Failure to raise voluntary intoxication as a defense. Engle says that counsel should have called mental health experts to explain the effects of alcohol and cocaine on the ability to form a specific intent. As noted by the trial court's reference to portions of the record, it is clear that Engle's counsel was adopting the trial strategy of attempting to show that Engle was not involved in the killing. The existence of other theories of defense does not mean that counsel was ineffective.
(g) Failure to raise competency to stand trial. This allegation is legally insufficient because of the absence of allegations of fact to support it.
(h)Failure to sequester jury during deliberations. Engle contends that his counsel was ineffective for failure to insist that the jury be sequestered during deliberations. In his first appeal, Engle argued that it was error to permit the jury to separate during their deliberations. This Court rejected the argument because counsel had agreed to the separation and because the proper admonishments had been given to the jury. We observed that Engle's trial was "conducted with that degree of fairness and security that the bill of rights contemplates, and do not believe that he has good reason to believe that he was deprived of any fundamental rights." Engle, 438 So.2d at 808. It appears that the decision to allow the jurors to go home for the evening was made for their convenience, and we cannot say that counsel was ineffective for not insisting that sequestering take place. Further, there is no indication that the jurors would probably have found him innocent if they had been sequestered.
(i) Failure to prove the available mitigation and to adequately argue against the aggravating factors at the original sentencing and at the resentencing. Engle's first trial lawyer stated on the record that he and Engle had made the deliberate tactical decision to go forward immediately with the penalty phase of the trial because he felt that the jury may have made some sort of "compromise" in the lengthy guilt phase deliberations. This strategy was rewarded with the jury recommendation of life...
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