Eutzy v. State, s. 73894

• Decision Date: 28 March 1989
• Docket Number: 73790,Nos. 73894,s. 73894
• Parties: 14 Fla. L. Weekly 176 William EUTZY, Appellant, v. STATE of Florida, Appellee. William EUTZY, Petitioner, v. Richard L. DUGGER, et al., Respondents.
• Court: Florida Supreme Court

Page 1143

541 So.2d 1143

14 Fla. L. Weekly 176

William EUTZY, Appellant, v. STATE of Florida, Appellee.

William EUTZY, Petitioner, v. Richard L. DUGGER, et al., Respondents.

Nos. 73894, 73790.

Supreme Court of Florida.

March 28, 1989.

William H. Allen, Arvid E. Roach II, James R. Murray and Timothy C. Hester of Covington & Burling, Washington, D.C.; and Michael Griffith of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellant/petitioner.

Robert A. Butterworth, Atty. Gen. and Kurt L. Barch, Asst. Atty. Gen., Tallahassee, for appellee/respondents.

PER CURIAM.

William Eutzy, a prisoner under sentence of death for whom a death warrant has been signed, appeals the trial court's denial of his second motion to vacate conviction and sentence made pursuant to Florida Rule of Criminal Procedure 3.850, petitions this Court for a writ of habeas corpus, and requests a stay of execution. We have jurisdiction, pursuant to article V, sections 3(b)(1) and (9), Florida Constitution, and deny all relief requested.

Eutzy was convicted of the first-degree murder of a Pensacola taxicab driver. Finding three aggravating circumstances and no mitigating circumstances, the trial court declined to follow a jury recommendation of life and imposed a sentence of death. Eutzy's conviction and sentence were affirmed by this Court in Eutzy v. State, 458 So.2d 755 (Fla.1984), cert. denied, 471 U.S. 1045, 105 S.Ct. 2062, 85 L.Ed.2d 336 (1985). On appeal, two of the three aggravating factors found by the trial court were upheld: that Eutzy had been previously convicted of a violent felony and that the murder was committed in a cold, calculated, and premeditated manner. Id. at 757-58. In 1986, a petition for writ of habeas corpus was denied by this Court. Eutzy v. Wainwright, 500 So.2d 544 (Fla.1986). The trial court denied a rule 3.850 motion to vacate conviction and sentence in September 1987. The denial was affirmed by this Court in Eutzy v. State, 536 So.2d 1014 (Fla.1988). While a motion for reconsideration which was later denied was pending before this Court, a death warrant was signed. Execution is scheduled for April 5, 1989. A second rule 3.850 motion to vacate conviction and sentence was summarily denied by the trial court on March 17, 1989. Eutzy now appeals that denial seeks a writ of habeas corpus, and requests a stay of execution.

RULE 3.850 MOTION

The trial court denied the rule 3.850 motion without an evidentiary hearing, finding that each of the five claims raised in the successive motion constituted an abuse of process because Eutzy failed to demonstrate that the claims were not known or could not have been known to him at trial or at the time his initial rule 3.850 motion was filed. The trial court further found that none of the recent federal decisions which Eutzy argues should be given retroactive application justify consideration of the claims. We agree that all claims raised are procedurally barred. The rule 3.850 motion and record in this case conclusively show that Eutzy is not entitled to relief. Gorham v. State, 521 So.2d 1067 (Fla.1988); Harich v. State, 484 So.2d 1239 (Fla.1986). Therefore, we affirm the trial court's summary denial of relief.

Eutzy's first claim is based on the United States Supreme Court's decision in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), in which the Court held that presentation of victim impact evidence to a jury in a capital case violated the eighth amendment to the United States Constitution. During the evidentiary hearing held in connection with Eutzy's first rule 3.850 motion, Eutzy's trial counsel testified that a plea arrangement to allow Eutzy to plead guilty to second-degree murder was aborted because the victim's family objected to the agreement. Eutzy contends that the victim's family's involvement in pretrial plea negotiations was improper under Booth. Even if the Booth decision could be read to apply in this case, appellant is procedurally barred from claiming relief. We recognized in Grossman v. State, 525 So.2d 833, 842 (Fla.1988), cert. denied, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989), that there is nothing in Booth which suggests that that decision should be retroactively applied to cases in which the claim was not preserved by a timely objection. As the trial court correctly found, "[t]he record demonstrates that the victim's family's involvement was known to the defense counsel and no objection was raised at trial nor was this matter raised on appeal or raised in Eutzy's initial Rule 3.850."

Eutzy's second and third claims, that his death sentence must be vacated as an unconstitutional deprivation of his sixth amendment right to a jury trial on the elements of capital murder and that Florida's death penalty statute is unconstitutional because it imposes an unlawful presumption that death is the appropriate penalty, which are based on the recent decision of the Ninth Circuit Court of Appeals in Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.1988), are procedurally barred because they could have been raised on direct appeal. These claims are also barred by the provisions of rule 3.850. Rule 3.850 requires motions to vacate conviction and sentence to be filed within two years after the judgment and sentence become final unless 1) the facts upon which the claim is predicated are unknown and could not have been ascertained by the exercise of due diligence, or 2) the fundamental constitutional right asserted was not established within the applicable time period and has been held to apply retroactively. Because neither of the two exceptions to the two-year time period has been established, these claims should have been raised by April 15, 1987, two years after Eutzy's petition for certiorari was denied by the United States Supreme Court. The facts upon which these claims are based were not only known prior to the expiration of the two-year period but, as noted above, were known prior to Eutzy's direct appeal. Further, decisions of an intermediate federal court, such as Adamson, are not susceptible to retroactive application under our decision in Witt v. State, 387 So.2d 922, 930 (Fla.) (only this Court and the United States Supreme Court can adopt a change of law sufficient to precipitate a post-conviction challenge to a final conviction and sentence), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980).

Eutzy's fourth claim, that his 1958 Nebraska conviction which was the sole evidence of a prior conviction of a violent felony was secured in violation of his constitutional rights and cannot serve as a basis for his death sentence, is likewise procedurally barred because he failed to raise the claim on direct appeal, in his first rule 3.850 motion, or in accordance with the two-year provision of rule 3.850. Bundy v. State, 538 So.2d 445 (Fla.1989). Eutzy contends that he is entitled to relief under the United States Supreme Court's decision in Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), in which the Court set aside the defendant's death sentence because his New York conviction for assault, which was the basis for the aggravating circumstance of a prior violent felony, had been reversed.

On March 15, 1989, Eutzy filed a complaint in the United States District Court for the District of Nebraska, pursuant to 42 U.S.C. section 1983, seeking to have the 1958 conviction expunged from the records of the Douglas County, Nebraska, District Court. He argues that "assuming that the prior conviction is vacated or reversed by the Nebraska courts on the basis that it was obtained in violation of [his] constitutional rights, it cannot constitutionally be relied on as grounds for sentencing [him] to death." As the trial court found, "Eutzy raised this issue in his initial Rule 3.850 in a slightly different argument, however, the validity of the 1958 Nebraska conviction was known to Eutzy and could have been raised" at that time. Eutzy concedes that he was aware of some of the facts underlying this claim but contends that a psychiatric opinion concerning his mental capacity at the time of the 1958 offense and his guilty plea to that offense was only recently obtained. With the exercise of due diligence, Eutzy's mental capacity at the time of the 1958 offense could have been ascertained prior to the expiration of the two-year period. Further, Eutzy's Nebraska conviction has been final for over thirty years. The fact that Eutzy is seeking collateral review of this conviction does not entitle him to relief under Johnson. Bundy, 538 So.2d at 447.

Eutzy's fifth claim, that he was denied his constitutional right to a competent psychiatric evaluation, is also procedurally barred. Prior to the filing of the motion at issue, Eutzy was examined by Dr. Merikangas, a psychiatrist. Dr. Merikangas determined that at "the time of the crime [Eutzy] was suffering from starvation, the effects of stimulants, and chronic substance and alcohol abuse." In his opinion these factors resulted in "impaired judgment and extreme emotional disturbance" at the time of the murder. Due to possible hypoglycemia, Dr. Merikangas believed that it is also "most unlikely that he was able to think rationally, logically or normally" at the time of the murder. Dr. Merikangas also expressed his belief that further diagnostic testing "would demonstrate organic deficits of the brain." Eutzy maintains that the psychiatric evaluations he received prior to trial were deficient because the court-appointed psychiatrists who examined him failed to consider issues relating to organic brain disorders, chronic alcoholism, and other neurological issues. The trial court summarily rejected this claim, finding it amounted to an abuse of process.

Our decision in State v. Sireci, 502 So.2d 1221 (Fla.1987), which was based on the "unique facts" of that case, id. at 1224, does not entitle Eutzy to bring this claim...