Grossman v. Crosby
| Decision Date | 31 January 2005 |
| Docket Number | No. 8:98-CV-1929-T-17MSS.,8:98-CV-1929-T-17MSS. |
| Citation | 359 F.Supp.2d 1233 |
| Parties | Martin E. GROSSMAN, Petitioner, v. James V. CROSBY, Jr., Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Jack Wayne Crooks, Tampa, FL, for Martin E. Grossman, Petitioner.
Carol Marie Dittmar, Office of the Attorney General, Tampa, FL, for Michael W. Moore, Robert A. Butterworth, Respondents.
Joseph T. Hobson, Staack, Simms & Hernandez, P.A., Clearwater, FL, for Martin E. Grossman, Petitioner.
Tracy L. Martinell, Chamblee, Johnson & Haynes, P.A., Tampa, FL, for Martin E. Grossman, Petitioner.
Stephen Jeffrey Shama, Manuel A. Machin, P.A., Tampa, FL, for Martin E. Grossman, Petitioner.
James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Middle Region, Tampa, FL, for Martin E. Grossman, Petitioner.
This cause is before the Court on Petitioner Martin E. Grossman (Grossman's) amended 28 U.S.C. § 2254 petition for writ of habeas corpus (hereinafter "petition") and memorandum in support of the amended petition (Doc. Nos. 49 and 48, respectively); Respondent's response to the petition (Doc. No. 57); and Grossman's reply to the response. (Doc. No. 59). Grossman is a Florida prisoner under penalty of death challenging his conviction and sentence entered by the Circuit Court for the Sixth Judicial Circuit, Pinellas County, Florida.
A review of the petition, the response, the reply, and the entire record demonstrates that Grossman's petition for writ of habeas corpus must be DENIED.
Grossman and a companion, Thayne Taylor, drove to a wooded area of Pinellas County, Florida, on the night of December 13, 1984, to shoot a handgun that Grossman had recently obtained by burglarizing a home. Grossman lived in neighboring Pasco County at his mother's home and was on probation following a recent prison term. Wildlife Officer Margaret (Peggy) Park, patrolling the area in her vehicle, happened on the scene and became suspicious. She left her vehicle with the motor, lights, and flashers on, and took possession of Grossman's weapon and driver's license. Grossman pleaded with her not to turn him in because having a weapon in his possession and being outside of Pasco County would cause him to return to prison for violation of probation. Officer Park refused Grossman's plea, opened the driver's door to her vehicle and picked up the radio microphone to call the sheriff's office. Grossman grabbed the officer's large flashlight and struck her repeatedly on the head and shoulders, forcing her upper body into the vehicle. Officer Park reported "I'm hit" over the radio and screamed. Grossman continued the attack, and called for help from Taylor, who joined in the assault. Officer Park managed to draw her weapon, a .357 magnum handgun, and fired a wild shot within the vehicle. Simultaneously, she temporarily disabled Taylor by kicking him in the groin. Grossman, who is a large man, wrestled the officer's weapon away from her and fired a fatal shot into the back of her head. The spent slug exited her head in front and fell into a drinking cup inside the vehicle. Blood stains, high velocity splatters, the location of the spent slug, and the entry and exit wounds show that the victim's upper body was inside the vehicle with her face turned inward or downward at the moment she was killed.
Grossman and Taylor retrieved Grossman's handgun and driver's license, and fled with those objects and the officer's weapon. They returned to Grossman's home, where they told the story of the killing, individually and collectively, to Brian Hancock, a friend who lived with the Grossmans. Hancock and Taylor buried the two weapons nearby. Grossman, who was covered with blood, attempted unsuccessfully to burn his clothes and shoes which Taylor later disposed of in a nearby lake.
Approximately a week later, Grossman and Taylor, individually and collectively, recounted the story of the murder to another friend, Brian Allan. Approximately eleven days after the murder, Hancock told the police, and Grossman and Taylor were arrested. Taylor, upon his arrest, recounted the story of the murder to a policeman and, later, Grossman told the story to a jailmate, Charles Brewer. Grossman and Taylor were tried jointly, over Grossman's objection.
At trial, the state introduced the testimony of Hancock, Allan, and Brewer against Grossman. The state also introduced Taylor's statement to the policeman against Taylor only. In addition, the state introduced the charred shoes, the two weapons, prints taken from the victim's vehicle, testimony from a neighbor who observed the attempted burning of the clothes, Grossman's efforts to clean the Grossman van, and the changing of the tires on the Grossman van. Expert testimony as to the cause of death and the significance of blood splatter evidence were also introduced by the state.
The jury was instructed that Taylor's admissions to the policeman could only be used against Taylor, not Grossman. The jury was instructed on premeditation and felony murder based on robbery, burglary, and escape. A general verdict of first-degree murder was returned against Grossman. Taylor was found guilty of third-degree murder. The judge followed the jury's unanimous recommendation that Grossman be sentenced to death. See Grossman v. State, 525 So.2d 833 (Fla.1988), cert. denied, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989), and Grossman v. Dugger, 708 So.2d 249 (Fla.1997), in which the Florida Supreme Court set out the facts of the case.
On January 18, 1985, Grossman was charged by Indictment with the first degree murder of Margaret Park. (Ex. A, V1/9).1 Trial was held October 22-31, 1985, before the Honorable Crockett Farnell, Circuit Judge. (Ex. A, V8-V14). The jury found Grossman guilty as charged. (Ex. A, V2/222; V15/2564). Following the penalty phase, a jury recommended the death penalty by a vote of 12-0. (Ex. A, V2/250; V15/27 13).
On March 19, 1986, Judge Farnell entered his written order containing findings of fact in support of Grossman's death sentence. (Ex. A, V2/289-90). The state trial court judge found three aggravating factors: 1) the murder was committed during the course of a robbery or burglary; 2) the murder was committed to avoid arrest and hinder law enforcement; and, 3) the murder was especially heinous, atrocious or cruel.2 The court rejected the proposed mitigating factor of Grossman's age, which was 19 years at the time of the murder, and determined that no mitigating factors existed.
In his direct appeal to the Florida Supreme Court, Grossman raised the following issues for review: (1) denial of motion to sever; (2) denial of motion to suppress evidence; (3) dilution of jury's sentencing responsibility; (4) denial of motion to continue trial; (5) presence of cameras in courtroom and release of videotape to media; (6) denial of request for records on victim and admission of evidence regarding victim's demeanor and prior conduct; (7) admission of evidence regarding prior crimes and bad acts by Grossman; (8) admission of photographs from crime scene and autopsy; (9) admission of physical evidence (clothes); (10) admission of blood spatter testimony; (11) instructions to the jury regarding felony murder; (12) sufficiency of the evidence to support the conviction; (13) denial of defendant's requested jury instruction regarding accomplice testimony; (14) denial of defendant's requested jury instructions regarding penalty phase; (15) sufficiency of the evidence to support findings regarding aggravating and mitigating factors; (16) trial court's failure to file timely sentencing order; (17) denial of motions to dismiss the indictment based on unconstitutionality of death penalty; and (18) trial court's allowing family members to testify as to victim impact evidence. (Ex. B).
The parties filed supplemental briefs pertaining to Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987) (victim impact evidence). (Ex.E — Ex.F). After the Florida Supreme Court affirmed Grossman's conviction and sentence, Grossman v. State, 525 So.2d 833 (Fla.1988), Grossman sought certiorari review in the United States Supreme Court. The United States Supreme Court denied the petition for writ of certiorari. Grossman v. Florida, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989). (Ex.H — Ex. K).
Governor Bob Martinez signed a death warrant in Grossman's case on March 8, 1990. The execution was stayed by the Florida Supreme Court on April 5, 1990. On August 13, 1990, Grossman filed his Rule 3.850 Motion to Vacate Judgment of Conviction and Sentence in the state trial court. (Ex. L, V1/58-V2/394);3 an evidentiary hearing was held May 31 — June 2, 1994. (Ex. L, V11/1963-V15/2679), and the state trial court denied the Rule 3.850 motion on October 2, 1995. (Ex. L, V16/2822-2838).
In his appeal from the denial of the Rule 3.850 post-conviction relief, Grossman raised the following issues: (1) ineffectiveness of counsel at the penalty phase; (2) failure to disclose exculpatory, material evidence; (3) witness acted as state agent in violation of defendant's right to counsel; (4) ineffectiveness of counsel at guilt phase; (5) ineffectiveness of counsel for mental health examination; (6) vagueness of "heinous, atrocious or cruel" (HAC) aggravating factor; (7) counsel operating under conflict of interest; (8) right to be present at trial; (9) prosecutorial misconduct; (10) trial court's alleged failure to weigh aggravating and mitigating factors. (Ex. M).
The Florida Supreme Court rejected these claims on December 18, 1997, and affirmed the denial of Rule 3.850 relief. Grossman v. Dugger, 708 So.2d 249 (Fla.1997). (Ex. S). That court specifically found Arguments 6 through...
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