Ferguson v. Singletary

• Decision Date: 09 December 1993
• Docket Number: No. 80549,80549
• Citation: 632 So.2d 53
• Parties: 18 Fla. L. Weekly S630, 19 Fla. L. Weekly S101 John Errol FERGUSON, Petitioner, v. Harry K. SINGLETARY, Respondent.
• Court: Florida Supreme Court

Page 53

632 So.2d 53

18 Fla. L. Weekly S630, 19 Fla. L. Weekly S101

John Errol FERGUSON, Petitioner, v. Harry K. SINGLETARY, Respondent.

No. 80549.

Supreme Court of Florida.

Dec. 9, 1993.

Rehearing Denied Feb. 24, 1994.

Richard H. Burr, III, New York City, and E. Barrett Prettyman, Jr. and Sara-Ann Determan of Hogan & Hartson, Washington, DC, for petitioner.

Robert A. Butterworth, Atty. Gen., and Fariba N. Komeily, Asst. Atty. Gen., Miami, for respondent.

PER CURIAM.

John Errol Ferguson, a prisoner under sentence of death, petitions this Court for a writ of habeas corpus. We have jurisdiction under article V, sections 3(b)(1) and (9) of the Florida Constitution.

Ferguson was convicted of six counts of murder for the execution-style killings of six people in Carol City. He was also convicted of two counts of murder for the killing of a young couple in Hialeah. In each case the jury recommended death on all counts, and the judge followed the jury's recommendation. This Court affirmed the convictions in both cases but remanded for reconsideration of the sentences because the judge failed to properly consider mental mitigation. Ferguson v. State, 417 So.2d 639 (Fla.1982) (Carol City); Ferguson v. State, 417 So.2d 631 (Fla.1982) (Hialeah). After a consolidated resentencing hearing, the trial court again imposed all eight sentences of death. This Court affirmed on appeal. Ferguson v. State, 474 So.2d 208 (Fla.1985). Ferguson then filed a petition for relief pursuant to Florida Rule of Criminal Procedure 3.850, which was denied by the circuit court after an evidentiary hearing. This Court affirmed on appeal. Ferguson v. State, 593 So.2d 508 (Fla.1992).

This is Ferguson's first habeas petition. He raises four claims: (1) that he is entitled to a new sentencing because a substitute judge sentenced him on remand; (2) that the jury instruction given in each trial on the aggravating factor of heinous, atrocious, or cruel was unconstitutionally vague; (3) that he was denied a fair trial because the trial judge refused defense counsel's request to stop giving Ferguson the antipsychotic drug Haldol; and (4) that appellate counsel was ineffective.

Judge Richard Fuller presided over the original trials and sentencing proceedings in both cases. When this Court remanded for resentencing due to Judge Fuller's failure to properly consider mitigation, a different judge, Judge Klein, heard the case. ¹ Without empaneling a jury and without any evidentiary hearing, Judge Klein sentenced Ferguson to death.

Ferguson argues that this process violated the holding in Corbett v. State, 602 So.2d 1240 (Fla.1992), since he was sentenced by a judge who did not personally hear the aggravation and mitigation. In Corbett, the trial judge died after the conclusion of the guilt and sentencing phases of trial and after the jury had returned a death recommendation. A substitute judge was appointed. He denied Corbett's request for a new sentencing proceeding and, after reviewing the record, sentenced Corbett to death. On appeal, this Court held that Florida Rule of Criminal Procedure 3.700(c), providing for sentencing by a substitute judge after he acquaints himself with the record, was not applicable to death penalty cases in view of the "very special and unique fact-finding responsibilities of the sentencing judge." Corbett, 602 So.2d at 1243. Rather, a judge who is substituted before the initial trial on the merits is completed and who does not hear the evidence presented during the penalty phase of the trial must conduct a new sentencing proceeding before a jury to assure that both the judge and the jury hear the same evidence.

The State first argues that Corbett applies only to situations where a judge is substituted before the initial trial and sentencing are completed and is inapplicable to a resentencing proceeding. This contention was specifically rejected in Craig v. State, 620 So.2d 174 (Fla.1993), where this Court held that the holding in Corbett applied to a resentencing proceeding.

The State next argues that Corbett is not a fundamental change in the law and should not be applied retroactively. We agree. This Court extensively addressed the retroactivity of case law in Witt v. State, 387 So.2d 922, 925 (Fla.) (quoting United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979)), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980), noting that it has "long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." We then stated the test for retroactivity as follows:

[O]nly major constitutional changes of law will be cognizable in [collateral proceedings.] ...

In contrast to these jurisprudential upheavals [such as Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ] are evolutionary refinements in the criminal law, affording new or different standards for the admissibility of evidence, for procedural fairness, for proportionality review of capital cases, and for other like matters. Emergent rights in these categories, or the retraction of former rights of this genre, do not compel an abridgement of the finality of judgments. To allow them that impact would, we are convinced, destroy the stability of the law, render punishments uncertain and therefore ineffectual, and burden the judicial machinery of our state, fiscally and intellectually, beyond any tolerable limit.

Witt, 387 So.2d at 929-30 (emphasis in original).

We find that Corbett and Craig are not fundamental constitutional changes in the law, but rather "nonconstitutional, evolutionary developments in the law, arising from our case-by-case application of Florida's death penalty statute." Witt, 387 So.2d at 930. As such, they will not be applied retroactively to cases already final.

In any event, we also find that Ferguson has failed to preserve this issue, and his claim is therefore procedurally barred. While counsel at resentencing did request an evidentiary hearing, he failed to raise the grounds now raised--that Judge Klein could not properly evaluate the aggravation and mitigation on the basis of a cold record. This claim was raised on direct appeal from resentencing, but since it was not raised below it was procedurally barred at that time.

Ferguson next argues that the jury instruction on the heinous, atrocious, or cruel aggravator, given at both trials, was invalid under Espinosa v. Florida, --- U.S. ----, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). The instruction given at these trials was virtually identical to the instruction held to be unconstitutionally vague in Shell v. Mississippi, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990). However, as noted by the State, trial counsel failed to object to the instruction at either trial and this issue was not raised on direct appeal in either case. It is therefore procedurally barred. See, e.g., Turner v. Dugger, 614 So.2d 1075 (Fla.1992). While counsel did file a motion prior to each trial challenging the constitutionality of Florida's death penalty statute and the vagueness of its aggravating circumstances, including this aggravator, there was no specific objection to the jury instruction. Ferguson's argument that the jury's recommendation was tainted by other aggravators later overturned by this Court is also procedurally barred, as this argument was not raised on direct appeal.

Ferguson next argues that he is entitled to relief under Riggins v. Nevada, --- U.S. ----, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992). There, the Supreme Court held that the forced administration of antipsychotic medication during a criminal trial was unconstitutional, absent an essential state interest in continuing the medication. Ferguson argues that Riggins was violated in his case because he was on Haldol throughout his trials.

Riggins is inapplicable here. The record reflects that the medication Ferguson received was not involuntary or forced upon him. Testimony indicated that the medication was given to Ferguson in his cell, and he could take it or not--it was completely up to him. In fact, the head nurse at the Dade County Jail Clinic testified at the Hialeah trial that Ferguson was very upset when he didn't receive his medication for a short time after transferring from Raiford, which is completely inconsistent with any assertion that Ferguson was medicated involuntarily. There was never any suggestion of the medical impropriety of Ferguson's medication.

Further, defense counsel never requested on the record that the medication be discontinued. The only even arguable request came at the very end of the original Hialeah sentencing proceeding, when counsel renewed his argument that Ferguson was incompetent and noted that he was receiving a significant amount of medication for his condition. Counsel then suggested that the court might want to sentence Ferguson when he was withdrawn from the medication. We do not construe this as a request that Ferguson be taken off the medication before sentence was pronounced. In any event, if the trial court erred in sentencing Ferguson while he was on medication, since the sentence was then vacated on appeal, the error was rendered moot. Counsel did mention Ferguson's medication at the resentencing proceeding, but this was in the context of mitigation and Ferguson's mental condition there was no request at that time that the medication be discontinued.

In a supplemental record submitted with this petition, there is an affidavit from trial counsel in which he asserts that he asked on at least two other occasions to have the medication discontinued. These requests are not reflected in the record and were evidently not transcribed. Even assuming that counsel's statements are accurate, this is a far cry from the situation in Riggins, where the medication was forced upon the...