Funchess v. Wainwright

• Decision Date: 17 April 1986
• Docket Number: No. 68412,68412
• Citation: 486 So.2d 592,11 Fla. L. Weekly 181
• Parties: 11 Fla. L. Weekly 181 David Livingston FUNCHESS, Petitioner, v. Louie L. WAINWRIGHT, etc., et al., Respondents.
• Court: Florida Supreme Court

Page 592

486 So.2d 592

11 Fla. L. Weekly 181

David Livingston FUNCHESS, Petitioner, v. Louie L. WAINWRIGHT, etc., et al., Respondents.

No. 68412.

Supreme Court of Florida.

April 17, 1986.

Andrew A. Graham of Reinman, Harrell, Silberhorn, Moule & Graham, Melbourne, and Larry Helm Spalding, Capital Collateral Representative, Mark E. Olive, Litigation Director and Michael A. Mello, Asst. Capital Collateral Representative, Tallahassee, for petitioner.

Jim Smith, Atty. Gen. and Richard E. Doran, Asst. Atty. Gen., Miami, for respondents.

ADKINS, Justice.

David Livingston Funchess petitions this Court for a writ of habeas corpus and requests a stay of execution. We have jurisdiction. Art. V, § 3(b)(9), Fla.Const. We deny the petition for a writ of habeas corpus and the application for stay of execution.

In 1975, Funchess was convicted of two counts of murder in the first degree and sentenced to two consecutive sentences of death. We affirmed both convictions and sentence. 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), and after ordering resentencing in light of Gardner v. State, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), we affirmed the trial court's order resentencing Funchess to death. Funchess v. State, 399 So.2d 356 (Fla), cert. denied, 454 U.S. 957, 102 S.Ct. 493, 70 L.Ed.2d 261 (1981). We have 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, 475 U.S. 1031, 106 S.Ct. 1242, 89 L.Ed.2d 349 (1986).

The only allegation raised in the instant petition concerns the constitutionality of death-qualified juries. Petitioner asserts that the exclusion of jurors who could never vote to impose a sentence of death results in juries that are not representative of the community and conviction prone. This assertion is procedurally barred on two grounds. This issue is not properly before this Court because it was not raised previously on direct appeal, motion for post-conviction relief or the prior petition for habeas corpus. In Adams v. Wainwright, 484 So.2d 1211 (Fla.1986), we held that the identical death-qualification claim was improperly raised in a habeas petition which followed a direct appeal and a motion for post-conviction relief. In so holding we noted that "a petition for habeas corpus is not to be used as a vehicle for obtaining a second appeal." At 1213 (citations omitted). The same rationale applies in this case.

The allegation regarding the constitutionality of a death-qualified jury is procedurally barred because counsel failed to object to the death-qualification process at trial. Thomas v. Wainwright, 486 So.2d 574 (Fla.1986). Further, even if we were to conclude that the trial court erred by impaneling a death-qualified jury the error would not be fundamental and counsel's failure to object would be fatal. Thomas. See also Steinhorst v. Wainwright, 477 So.2d 537 (Fla.1985).

Although we need not address the merits of petitioner's claim it is worth noting that we have previously rejected the argument that death-qualified juries are not representative of the community and conviction prone. Dougan v. State, 470 So.2d 697 (Fla.1985); Witt v. State, 465 So.2d 510 (Fla.1985); Caruthers v. State, 465 So.2d 496 (Fla.1985). The statistical evidence provided by petitioner fails to persuade us to depart from our prior holdings. See Kennedy v. Wainwright, 483 So.2d 424 (Fla.1986).

Petitioner contends that this Court is obligated to grant a stay of execution because the United States Supreme Court has decided to review a case that held that death-qualified juries are not representative of the community and conviction prone, Grigsby v. Mabry, 758 F.2d 226 (8th Cir.) (en banc), cert. granted sub. nom, Lockhart v. McCree, 474 U.S. 816, 106 S.Ct. 59, 88 L.Ed.2d 48 (1985), and the United States Supreme Court has granted stays of executions to all cases in which the death-qualification issue is properly presented. See e.g., Davidson v. Wainwright, --- U.S. ----, 106 S.Ct. 1393, 89 L.Ed.2d 707 (1986); Adams v. Wainwright, --- U.S. ----, 106 S.Ct. 1371, 89 L.Ed.2d 598 (1986); Kennedy v. Wainwright, --- U.S. ----, 106 S.Ct. 1065, 89 L.Ed.2d 288 (1986); Celestine v. Blackburn, 473 U.S. 938, 106 S.Ct. 31, 87 L.Ed.2d 707 (1985). Petitioner's argument fails for two reasons. First, in none of the aforementioned decisions did the United States Supreme Court indicate that a stay of execution had been granted on the Lockhart issue. We refuse to accept an argument premised on pure speculation. Second, the United States Supreme Court recently denied an application for stay of execution filed by Daniel Morris Thomas despite the fact that the Lockhart issue was raised by Thomas in his earlier proceedings. Thomas v. Wainwright, --- U.S. ----, 106 S.Ct. 1623, 90 L.Ed.2d 173 (1986).

Even were we to agree with petitioner's contention that death-qualified juries violate a defendant's constitutional right to trial by a representative jury and are conviction prone, the record in this case does not provide a factual basis for...