Griffin v. State, s. 65014
| Decision Date | 16 March 1984 |
| Docket Number | Nos. 65014,65016,s. 65014 |
| Citation | 447 So.2d 875 |
| Parties | Kenneth GRIFFIN, Appellant, v. STATE of Florida, Appellee. Kenneth GRIFFIN, Petitioner, v. Louie L. WAINWRIGHT, Respondent. |
| Court | Florida Supreme Court |
Robert LoBue of Patterson, Belknap, Webb & Tyler, New York City, and John D. Middleton, Gainesville, for appellant/petitioner.
Jim Smith, Atty. Gen., and Wallace E. Allbritton and Gregory C. Smith, Asst. Attys. Gen., Tallahassee, for appellee/respondent.
These proceedings are before the Court on appeal from a circuit court order denying Kenneth Griffin's motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 and upon Griffin's petition for a writ of habeas corpus. Griffin is a state prisoner held under two sentences of death. We have jurisdiction of his appeal and petition. Art. V, § 3(b)(1) & (9), Fla. Const. We affirm the order denying post-conviction relief and we deny the petition for writ of habeas corpus.
Appellant's convictions on two counts of first-degree murder and his two sentences of death imposed therefor were affirmed on appeal by this Court. Griffin v. State, 414 So.2d 1025 (Fla.1982). He moved for post-conviction relief in the trial court on numerous grounds based on the following asserted infirmities or defects: (1) lack of effective assistance of counsel at trial; (2) improper dismissal of a prospective juror at trial; (3) error in the instructions given to the jury at the trial; (4) prosecutorial misconduct in inflaming and misleading the jury; (5) systematic exclusion of black citizens from the venire from which the jurors were chosen; (6) erroneous instruction to the jury that it could consider both premeditation and felony-murder theories on both counts when there was no evidence of premeditation on one of the murders; (7) arbitrariness in sentencing appellant to death; and (8) a pattern of racial disparity in the prosecution, trial, and sentencing of capital offenders in Florida.
The trial judge found appellant's motion to vacate, set aside, or correct the conviction and sentence to be insufficient on its face to state a claim for relief. However, the judge announced his intention to hold a hearing and allow the presentation of evidence as to the claim of ineffective assistance of counsel only. The claim of ineffective assistance of counsel set forth in the motion consisted of forty-eight asserted "failures and inadequacies." After the evidentiary hearing, the trial judge made findings of fact on each of the allegations of ineffective assistance. The trial judge found all the alleged deficiencies to be either factually unsupported or legally inconsequential.
We find that the trial court's denial of relief, without evidentiary hearing, on all grounds other than ineffective assistance of counsel, was correct. We also find the trial court's findings regarding ineffective assistance of counsel were supported by the evidence adduced at the hearing. The trial court's order, which we affirm, is appended to this opinion.
In his petition for writ of habeas corpus, Griffin argues that he was not afforded effective assistance of counsel in pursuing his appeal previously decided by this Court. The petition identifies four issues which appellate counsel did not argue to this Court and which petitioner maintains should have been argued.
Petitioner argues that a prospective juror was excused for expressing mere scruples about capital punishment, which would not have prevented him from serving as an impartial juror, and that the juror's dismissal was therefore improper under the rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The following is a direct quote from the trial court record:
I believe that is what you said, isn't it, Mr. Fayson?
PROSPECTIVE JUROR FAYSON: Yes, sir.
Considering the totality of the questions and answers put to this juror, appellate Petitioner contends that appellate counsel should have argued that the trial court had erred in instructing the jury on felony murder because a first-degree felony murder conviction was improper under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). Petitioner's argument misapprehends the holding of the United States Supreme Court in Enmund. There was no error in instructing the jury on first-degree felony murder.
counsel could have reasonably concluded that Witherspoon offered no relief.
Petitioner contends that his appellate counsel was defective in failing to argue that the trial court had erred in not instructing the jury on second-degree felony murder, which petitioner characterizes as a lesser included offense upon which there was some evidence. The record shows that appeal counsel in fact did present arguments to this Court on the lack of instructions on all degrees of homicide. Petitioner's argument is without merit because, in light of the statutory definition of second-degree felony murder applicable at the time of the crime, there was no evidence to support the instruction petitioner now says should have been given. See Adams v. State, 341 So.2d 765 (Fla.1976), cert. denied, 434 U.S. 878, 98 S.Ct. 232, 54 L.Ed.2d 158 (1977).
Petitioner contends that appellate counsel was defective in not raising the issue of inflammatory and misleading statements by the prosecutor. We do not find the cited utterances of the prosecutor to have been of such magnitude as to require that appellate counsel either raise them or be labelled ineffective.
For the foregoing reasons, and for the reasons stated in the attached order of the trial court, we affirm the trial court's order and deny the petition for habeas corpus.
It is so ordered.
Plaintiff, CRIMINAL ACTION
v.
------------------
ORDER DENYING AMENDED MOTION TO VACATE, SET ASIDE OR CORRECT CONVICTION AND SENTENCE AND ORDER A NEW TRIAL
Defendant, Kenneth Griffin, based on a jury recommendation to impose death in each of two counts of murder, was sentenced to death by the undersigned trial judge on April 19, 1979. A unanimous decision affirmed the judgments and sentences, Griffin v. State, 414 So.2d 1025 (Fla.1982).
The Honorable Bob Graham, Governor of the State of Florida, on February 21, 1984 issued a Death Warrant effective for the week beginning March 16, 1984. The date of execution of the death sentences is now set for March 20, 1984.
This cause is before the Court on an Amended Motion to Vacate, Set Aside or Correct Conviction and Sentence and Order a New Trial. At the request of defendant, an evidentiary hearing was held on March 13, 1984 on the claim of ineffective assistance of trial counsel, Mr. Leonard E. Ireland, Jr., of Gainesville, Florida.
Mr. Ireland, an outstanding member of the local Bar, and a private practitioner with one of the oldest and best law firms in this area, was appointed by another Circuit Judge previously assigned to this case to represent defendant Griffin upon a certification of conflict by the public defender who had previously represented Willie James Bryant, one of three participants in these murders. Bryant had been granted immunity by the State and testified at the trial. Another outstanding private attorney, Mr. Michael L. Bryant, was appointed The undersigned, as trial judge, entered judgment and sentences of death for defendant, Griffin, on April 19, 1979. His trial counsel, Mr. Ireland, also handled the appeal resulting in affirmance by the Supreme Court of Florida. Mr. Ireland asked to be relieved as counsel following the Supreme Court decision, and the undersigned sought and secured another capable and experienced attorney, a former public defender, Mr. Thomas J. Farkash, to represent defendant Griffin to pursue his case through clemency proceedings by Order entered November 2, 1982. Defendant, Griffin, asked the Court to reconsider such appointment of Mr. Farkash, advising that he had secured "volunteer counsel", Mr. Mel Lamelas of Miami, and an Order so relieving Mr. Farkash was entered November 24, 1982. The undersigned declined the request of Mr. Lamelas to be appointed as special public defender for defendant Griffin because of unfamiliarity with Mr. Lamelas. (Letter dated 12/14/82 from Court to Mr. Lamelas.)
to represent the co-defendant, Robert John Hinson, who was severed from this trial March 8, 1979. A nolle prosequi of the charges against Hinson was entered by the State on April 9, 1979.
Mr. Lamelas proceeded as volunteer counsel to represent defendant, Griffin, and he filed a Motion to Vacate, Set Aside or Correct Conviction and Sentence on April 20, 1983, but he never asked that such Motion be heard, he did not send the undersigned a copy of such Motion or advise that such Motion had been filed, and the undersigned was completely unaware that such Motion existed until just prior to the issuance of the...
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