Francis v. State, 71443

• Citation: 13 Fla. L. Weekly 369,529 So.2d 670
• Decision Date: 02 June 1988
• Docket Number: No. 71443,71443
• Parties: 13 Fla. L. Weekly 369 Bobby Marion FRANCIS, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

Page 670

529 So.2d 670

13 Fla. L. Weekly 369

Bobby Marion FRANCIS, Appellant, v. STATE of Florida, Appellee.

No. 71443.

Supreme Court of Florida.

June 2, 1988.

Rehearing Denied Sept. 8, 1988.

Larry Helm Spalding, Capital Collateral Representative, Office of the Capital Collateral Representative and Mark Evan Olive, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., Charles M. Fahlbusch, Capital Collateral Coordinator and Ralph Barreira, Asst. Atty. Gen., Miami, for appellee.

McDONALD, Chief Justice.

Francis, a prisoner under sentence of death, appeals the trial court's denial of his motion for postconviction relief. We have jurisdiction pursuant to article V, section 3(b)(1), Florida Constitution and Florida Rule of Criminal Procedure 3.850. We affirm the trial court's order.

In 1975 Francis tortured and then shot and killed a man whose informing against Francis resulted in Francis' arrest on a narcotics charge. Francis has been tried, convicted, and sentenced to death three times for this murder. During the first appeal, Francis filed a 3.850 motion alleging ineffective assistance of counsel. This Court relinquished jurisdiction to the trial court which granted the motion and ordered that Francis be retried. On appeal of the second conviction this Court found that, because he had been involuntarily absent during the exercise of peremptory challenges, Francis should be retried yet again. Francis v. State, 413 So.2d 1175 (Fla.1982). This Court affirmed the third conviction and death sentence. Francis v. State, 473 So.2d 672 (Fla.1985), cert. denied, 474 U.S. 1094, 106 S.Ct. 870, 88 L.Ed.2d 908 (1986).

The governor signed Francis' death warrant in September 1987, with execution set for November 16, 1987. Francis then filed a 3.850 motion with the trial court. After an evidentiary hearing, the trial court denied relief, and Francis appealed to this Court. Because of the imminence of the execution, we granted a stay in order to study this case.

In his 3.850 motion Francis claimed that: 1) he had been penalized for going to trial rather than pleading guilty; 2) his trial counsel had rendered ineffective assistance by not discovering and presenting certain nonstatutory mitigating evidence during the penalty phase; 3) the state engaged in misconduct regarding a witness' (Charlene Duncan) testimony; 4) he had been denied his right to confront another witness (Deborah Wesley); and 5) the state attorney's office had a conflict of interest in prosecuting Francis because a previous state attorney had represented a witness against Francis while that attorney did criminal defense work. ¹ The trial court summarily denied the third and fourth claims because they had been raised on direct appeal. The court then held an evidentiary hearing on the other claims, after which it found them to have no merit and denied relief.

On appeal Francis argues that the trial court should have held an evidentiary hearing on the summarily denied claims and that the court should have vacated his death sentence and ordered a resentencing. We disagree.

This Court considered the claims regarding the witnesses against Francis on direct appeal. 473 So.2d at 674-75. They are, therefore, procedurally barred from consideration in postconviction proceedings. See Christopher v. State, 489 So.2d 22 (Fla.1986). The trial court properly denied these claims in a summary fashion.

The trial court's finding no merit to the first and fifth claims--being penalized for going to trial and the prosecution's conflict of interest--is supported by competent, substantial evidence, and Francis has shown no credible reason for reversing the denial of relief. Moreover, these claims suffer from a procedural bar. This Court considered the former claim on direct appeal, 473 So.2d at 677, and the latter claim could and should have been raised on appeal. ²

We now turn to the final claim, ineffective assistance of counsel. Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Francis must demonstrate both substandard performance by his trial counsel and prejudice caused by that substandard performance. Francis has shown neither.

Francis' first two juries recommended death by votes of twelve to zero. Counsel for his third trial made an impassioned, highly emotional argument to the jury, ³ which returned a recommendation of life imprisonment after deliberating for less than an hour. A jury's recommendation of life imprisonment is a strong indication of counsel's effectiveness. Lusk v. State, 498 So.2d 902, 905 (Fla.1986) ("[T]he jury's recommendation cannot be alleged to have been produced by counsel's ineffectiveness."), cert. denied, 481 U.S. 1024, 107 S.Ct. 1912, 95 L.Ed.2d 517 (1987); Buford v. State, 492 So.2d 355, 359 (Fla.1986) ("Appellant's contention that his trial counsel rendered ineffective assistance of counsel during the penalty phase of the trial is repudiated by the fact that the jury recommended life in this case."); Douglas v. State, 373 So.2d 895, 896 (Fla.1979) ("We do not consider meritorious to any degree the suggestion now made that trial counsel was 'ineffective' because he failed to persuade the trial judge to follow rather than override the jury's recommendation."). See also State v. Bolender, 503 So.2d 1247 (Fla.), cert. denied, 484 U.S. 873, 108 S.Ct. 209, 98 L.Ed.2d 161 (1987); Porter v. State, 478 So.2d 33 (Fla.1985).

In testifying at the evidentiary hearing trial counsel stated: "Perhaps, in retrospect, I was negligent in some areas." ⁴ He went on, however, to say that he "did the best [he] could" and that he firmly believed, based on his experience with capital trials and his knowledge of the instant judge, that the trial judge would not sentence Francis to death. Counsel's effectiveness is obvious here, and Francis has not shown that he "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment." Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. ⁵

Current counsel, however, argues that trial counsel should have presented the currently tendered evidence in order to convince the trial judge not to override the jury or, in the alternative, to convince this Court to reverse the override. Even assuming, for the sake of argument, that trial counsel should have developed and introduced this evidence, Francis has not met the second part of the Strickland v. Washington test. He has not shown that his counsel's "performance actually had an adverse effect so severe that there is a reasonable probability that the results of the proceedings would have been different but for the inadequate performance." Blanco v. Wainwright, 507 So.2d 1377, 1381 (Fla.1987).

Dr. Merikangas, a psychiatrist, interviewed Francis and concluded that he suffers from fetal alcohol syndrome and is, therefore, brain damaged and mentally defective, based primarily on Francis' facial characteristics. He admitted, however, that those characteristics were not exclusively attributable to fetal alcohol syndrome. He also concluded that Francis' reasoning ability was impaired. The doctor relied on Francis' personal history in assuming this, however, rather than testing Francis' ability to reason.

To rebut this witness, the state presented another psychiatrist, Dr. Mutter. Although Dr. Mutter did not interview Francis, he reviewed Dr. Merikangas' report as well as other records, documents, and affidavits relating to Francis' history. Based on transcripts of Francis' discussions with the court at his third trial, Dr. Mutter stated that Francis' behavior was "grossly inconsistent with somebody who is brain damaged" and that there is no conclusive evidence that Francis suffers from fetal alcohol syndrome. ⁶

Francis' mother died when he was six, and her sister (his aunt) raised him and his sisters in a poor, black community. His aunt, youngest sister, and the ex-wife of his aunt's son testified at the evidentiary hearing. Although the ex-wife testified that the aunt's common law husband mistreated Francis, neither his aunt nor his sister said that. Not only is the testimony of these witness' inconsistent, ⁷ it deals with events remote in time from the instant homicide. ⁸ Francis was thirty-one when he committed this murder; that this evidence would be found to establish mitigating circumstances is merely speculative. Bolender; Lusk.

In denying the motion for postconviction relief the trial judge found that Francis did not suffer from fetal alcohol syndrome; that Mutter's, rather than Merikangas', testimony should be accepted; and that trial counsel's nonproduction of the currently tendered evidence did not rise to the level of ineffective assistance. The judge went on to state that, if this evidence had been presented at sentencing, it would not have altered Francis' sentence. ⁹ On appeal this Court affirmed the jury override and found the sentence to represent "a reasoned judgment based on the circumstances of the capital felony and the character of the offender after giving due consideration to the jury's recommendation." 473 So.2d at 677. The newly presented evidence does not alter that conclusion because it does not create a reasonable probability that the outcome would have been different if it had not been omitted. Francis has failed to demonstrate that its omission prejudiced him.

Therefore, we affirm the trial court's denial of postconviction relief and dissolve the previously entered stay.

It is so ordered.

OVERTON, EHRLICH, SHAW and GRIMES, JJ., concur.

BARKETT, J., dissents with an opinion, in which KOGAN, J., concurs.

BARKETT, Justice, dissenting.

I cannot conclude, as the majority suggests, that the jury's life recommendation in this case excuses any and all of counsel's manifest and prejudicial deficiencies. Such a position means that what may have been a mere fluke at trial, see 473 So.2d at 676, now renders counsel's performance...