Funchess v. State
| Decision Date | 08 March 1984 |
| Docket Number | Nos. 62870,62748,s. 62870 |
| Citation | 449 So.2d 1283 |
| Parties | David Livingston FUNCHESS, Appellant/Petitioner, v. STATE of Florida, Appellee/Respondent. David Livingston FUNCHESS, Petitioner, v. Louie L. WAINWRIGHT, etc., et al., Respondents. |
| Court | Florida Supreme Court |
Andrew A. Graham, Melbourne, for appellant/petitioner.
Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Miami, for appellee/respondents.
We have before us an appeal from the denial of a motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We also have a petition for a writ of habeas corpus which is based on a claim of ineffective assistance of appellate counsel. We have jurisdiction. Art. V, § 3(b)(1), (7) and (9), Fla. Const.
This death penalty case has been before us on three prior occasions: a direct appeal from Funchess' 1975 conviction of two counts of murder in the first degree and consecutive sentences of death, affirmed in Funchess v. State, 341 So.2d 762 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977); an order remanding the case to the trial court for resentencing without an advisory jury proceeding pursuant to Gardner v. Florida 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), Funchess v. State, 367 So.2d 1007 (Fla.1979); and on appeal following resentence of death, affirmed in Funchess v. State, 399 So.2d 356 (Fla.), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981).
On June 23, 1982, Governor Bob Graham signed Funchess' death warrant. Shortly thereafter a proceeding was filed by Funchess, in federal district court, seeking relief from the sentence. Following entry of a stay of execution and pursuant to an order of that court, Funchess was required to exhaust certain claims in the state court system which were then unexhausted.
On October 14, 1982, Funchess filed a motion for post-conviction relief before the trial court. An evidentiary hearing was held before that court. At the hearing, three witnesses testified and sixty pages of testimony and arguments were taken and transcribed. On October 27, 1982, the trial court rendered its order denying the motion for post-conviction relief. This appeal followed.
Contemporaneously with the filing of the rule 3.850 motion below, Funchess filed a petition for a writ of habeas corpus in this Court raising separate issues not justiciable by the court below. Funchess then moved to consolidate both proceedings and this Court granted his motion.
The facts of the crime are set forth in 341 So.2d 762. They need not be repeated here.
In Funchess' rule 3.850 motion he urged four grounds for his challenge: 1) that he did not receive effective assistance of counsel at the sentencing proceeding in 1975; 2) that the sentencing instruction precluded the sentencing jury from considering known statutory mitigating circumstances; 3) that the death penalty may not be applied to his case and sentence since he was not found guilty of premeditated murder; 4) that trial counsel at resentencing in 1979 was ineffective. The second and third grounds stated are issues which either were or could have been addressed at trial or on direct appeal. Those issues are not subject to collateral attack and were properly dismissed below. Demps v. State, 416 So.2d 808, 809 (Fla.1982); Meeks v. State, 382 So.2d 673, 675 (Fla.1980), cert. denied, 459 U.S. 1155, 103 S.Ct. 799, 74 L.Ed.2d 1002 (1983); Adams v. State, 380 So.2d 423, 424 (Fla.1980).
In Funchess' claim of ineffective assistance at the penalty phase he alleges the following omissions and errors: 1) failure to investigate and present to the jury evidence of the defendant's psychiatric disturbances, his history of childhood abuse and his heavy use of heroin as a result of a war injury; 2) failure to present to the jury his desperate economic and personal conditions; 3) failure to present any evidence of any kind at the sentencing hearing; 4) failure to object to numerous instructional errors during the penalty phase.
Based on the entire trial record as well as the testimony and evidence presented at the hearing, the trial judge made the following findings all of which we agree with: 1) that trial counsel rendered effective assistance of counsel pursuant to Knight v. State, 394 So.2d 997 (Fla.1981); 2) that trial counsel knew of the defendant's medical history, family problems and use of drugs and determined that, based on their trial strategy of maintaining his innocence, it would not be beneficial to bring this information to the attention of the sentencing jury; 3) that there was no error involved in counsel's failure to object to certain jury instructions because they either were not error requiring an objection or the later changes in the law which made them error could not be anticipated. See Meeks v. State.
The defendant has failed to meet his burden of alleging and establishing grounds for relief and of establishing that these grounds resulted in prejudice to him. See Meeks, 382 So.2d at 675. We find, as did the court below, that there was no specific act or omission by the trial counsel or the resentencing counsel which would constitute a deficiency measurably below the performance expected of competent counsel. See Knight v. State.
Funchess contends that he had ineffective assistance of counsel during his direct appeal from conviction and sentence. He bases this assertion on five perceived failings of his trial counsel. All five stem from purported improper instructions given to the jury at the first sentencing proceeding. They are as follows: A) the trial judge erroneously instructed the jury that the aggravating and mitigating circumstances must be proved beyond a reasonable doubt; B) the trial judge erroneously instructed the jury that death is presumed to be the proper sentence unless it or they (aggravating circumstances) are overriden by one or more of the mitigating circumstances; C) the trial judge failed to define the "no significant history of prior criminal activity" mitigating circumstance; D) trial judge failed to limit the jury's consideration of the "especially heinous, atrocious, or cruel aggravating circumstance"; E) the trial court erred by allowing the jury to consider duplicative aggravating circumstances, including murder during the course of robbery and pecuniary gain, and murder during the course of robbery and avoiding arrest.
We addressed contentions A, B and D in Funchess' direct appeal from resentencing and rejected them. 399 So.2d at 356. The claims being without merit, we cannot find fault with appellate counsel for not raising them at Funchess' first direct appeal from conviction and sentence.
The first portion of contention E concerning the doubling of the "for pecuniary gain" factor with the "in...
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Funchess v. Wainwright
...Supreme Court. In conjunction with that appeal, appellant filed a petition for writ of habeas corpus. In Funchess v. State, 449 So.2d 1283 (Fla.1984) (hereinafter Funchess IV ), the Florida Supreme Court affirmed the denial of appellant's 3.850 Motion and denied his petition for habeas corp......
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Funchess v. Wainwright
...also affirmed the trial court's denial of post-conviction relief and denied Funchess' first petition for habeas corpus. Funchess v. State, 449 So.2d 1283 (Fla.1984). The federal courts have similarly denied Funchess relief. Funchess v. Wainwright, 772 F.2d 683 (11th Cir.1985), cert. denied,......
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Middleton v. State
...not to present these matters to the jury but to argue them subsequently to the court was a valid strategic one. See Funchess v. State, 449 So.2d 1283 (Fla.1984); Straight v. Wainwright, 422 So.2d 827 (Fla.1982). Reasonable strategy will not be second guessed by the use of hindsight. See Son......
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Hoyas v. State, 85-2668
...that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed. Funchess v. State, 449 So.2d 1283 (Fla.1984); Thompson v. State, 410 So.2d 500 (Fla.1982); Knight v. State, 394 So.2d 997 ...