Harvard v. State

• Decision Date: 06 February 1986
• Docket Number: No. 67556,67556
• Citation: 486 So.2d 537,11 Fla. L. Weekly 193
• Parties: 11 Fla. L. Weekly 193, 11 Fla. L. Weekly 55 William Lanay HARVARD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 537

486 So.2d 537

11 Fla. L. Weekly 193, 11 Fla. L. Weekly 55

William Lanay HARVARD, Appellant, v. STATE of Florida, Appellee.

No. 67556.

Supreme Court of Florida.

Feb. 6, 1986.

Rehearing Denied April 24, 1986.

Richard L. Jorandby, Public Defender, Craig S. Barnard, Chief Asst. Public Defender, and Richard H. Burr, III, and Michael A. Mello, Asst. Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, for appellant.

Jim Smith, Atty. Gen. and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

William Lanay Harvard appeals from the trial court's denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 and seeks a stay of execution. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We grant relief in part and remand for a new sentencing hearing.

In 1975, Harvard was convicted of the first-degree murder of his former wife and sentenced to death. On direct appeal, we affirmed Harvard's conviction, vacated the death sentence because it did not comply with the requirements of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), and remanded the case for resentencing. Harvard v. State, 375 So.2d 833 (Fla.1977), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979). Pursuant to that order, at the resentencing proceeding, held in 1980, appellant was permitted only the opportunity to rebut confidential matters considered by the trial judge in violation of Gardner in the earlier proceeding. The trial judge again imposed the death sentence and entered a new sentencing order. On appeal, we affirmed. Harvard v. State, 414 So.2d 1032 (Fla.1982), cert. denied, 459 U.S. 1128, 103 S.Ct. 764, 74 L.Ed.2d 979 (1983).

Harvard contends (1) that the sentencing judge stated, in this post-conviction proceeding, that he limited consideration of mitigating factors to those enumerated in the capital sentencing statute when he imposed Harvard's death sentence, contrary to the United States Supreme Court decision in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); (2) that because trial counsel misunderstood the law concerning the use of nonstatutory mitigating circumstances, counsel failed to investigate and present available evidence of nonstatutory mitigating circumstances; (3) that he was denied effective assistance of counsel in the sentencing proceeding because his counsel (a) failed to adequately prepare to ameliorate evidence of a prior conviction, (b) failed to obtain an evaluation of his mental capacity at the time of the offense, (c) made an improper closing argument, and (d) failed to object to portions of the prosecutor's final argument which Harvard claims were improper; (4) that the penalty phase instructions were not complete; (5) that Florida's capital sentencing statute is unconstitutional because electrocution is a cruel and unusual punishment and because capital punishment is applied in an arbitrary and discriminatory manner.

With respect to the first two issues, Harvard draws our attention to the recent en banc decisions of the Eleventh Circuit Court of Appeals in Hitchcock v. Wainwright, 770 F.2d 1514 (11th Cir.1985), and Songer v. Wainwright, 769 F.2d 1488 (11th Cir.1985). The relevant facts of Songer are very similar to those of the instant case. Songer was sentenced to death in 1974, four years before the United States Supreme Court handed down its decision in Lockett. The sentence was vacated and the case remanded on a Gardner violation. Songer v. Florida, 430 U.S. 952, 97 S.Ct. 1594, 51 L.Ed.2d 801 (1977). At resentencing, which took place in 1977, the trial judge limited Songer to reviewing and rebutting the information considered by the judge in violation of Gardner. During proceedings held in early 1985, the trial judge indicated he had not considered any nonstatutory mitigating evidence in sentencing Songer to death. In an en banc decision, a unanimous court of appeals held that, in light of the judge's statements, and its view that the United States Supreme Court decision in Lockett is retroactive, Songer, 769 F.2d at 1489 (citing Eddings v. Oklahoma, 455 U.S. 104, 118, 102 S.Ct. 869, 878, 7 L.Ed.2d 1 (1982); Jordan v. Arizona, 438 U.S. 911, 98 S.Ct. 3138, 57 L.Ed.2d 1157 (1978); Spivey v. Zant, 661 F.2d 464 (5th Cir.1981), cert. denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1982)), Songer is entitled to a new sentencing hearing. A majority of that court ruled the case should be remanded to the trial judge for resentencing to permit Songer the opportunity to In Hitchcock, released less than two weeks after Songer, the defendant asserted that, at the time of his capital sentencing in 1977, "Florida law unconstitutionally discouraged his attorney from investigating and presenting nonstatutory mitigating evidence." 770 F.2d at 1515-16. After examining the trial record, the court of appeals denied relief, determining that Hitchcock's counsel's presentation to the jury would not have been "appreciably different" had counsel been aware that Florida law permitted the introduction of nonstatutory mitigating evidence. Id. at 1517. In so concluding, the court noted that at trial the defense had introduced testimony of Hitchcock's family members relating to his non-violent disposition, difficult childhood, and solid character traits, and that defense counsel had admonished the jury to "consider everything together ... the whole picture, the whole ball of wax," in reaching its sentencing recommendation. Id. at 1518.

present nonstatutory mitigating circumstances. Five judges dissented from that portion of the decision, expressing their belief that a penalty phase proceeding before a new jury is mandated.

It is our independent view that an appellant seeking post-conviction relief is entitled to a new sentencing proceeding when it is apparent from the record that the sentencing judge believed that consideration was limited to the mitigating circumstances set out in the capital sentencing statute in determining whether to impose a sentence of death or life imprisonment without parole for twenty-five years. See Lockett; Eddings; cf. Songer v. Wainwright, --- U.S. ----, 105 S.Ct. 817, 83 L.Ed.2d 433 (1985) (Brennan, J., dissenting); Jacobs v. Wainwright, --- U.S. ----, 105 S.Ct. 545, 83 L.Ed.2d 809 (1984) (Marshall, J., dissenting). In his order denying relief, the trial judge in the instant case addressed the allegation that he failed to consider nonstatutory mitigating circumstances and expressly found that "reasonable lawyers and judges at the time of Mr. Harvard's trial could have mistakenly believed that nonstatutory mitigating circumstances could not be considered. The court certainly carried out its responsibility on the basis of that premise at the time of Mr. Harvard's trial." We note that nonstatutory mitigating factors may arise not only from evidence presented in the penalty phase but also from evidence presented and observations made in the guilt phase of the proceeding. Whether nonstatutory factors actually presented in the guilt phase or the newly asserted nonstatutory mitigating factors would have influenced the trial judge is a determination which, under these circumstances, should be made by the trial judge rather than by this Court on the face of a cold record. In view of the trial judge's statement in this case, and the fact that the scope of appellant's presentation at his 1980 resentencing was limited pursuant to this Court's order, we have no alternative but to conclude that appellant's death sentence was imposed in violation of Lockett and that appellant is, therefore, entitled to a new sentencing hearing.

We reject the argument that the trial judge's denial of post-conviction relief in this proceeding constitutes, by inference, a reevaluation of the alleged mitigating factors. We hold that a new sentencing hearing must be held before the trial judge with directions that he allow appellant to present evidence of appropriate nonstatutory mitigating circumstances. The trial judge may, in his discretion, convene a new sentencing jury, if he concludes that its recommendation would be helpful in his final sentencing decision. This Court has previously recognized that, at the time appellant was originally sentenced, our death penalty statute could have been reasonably understood to preclude the introduction of nonstatutory mitigating evidence. See Jacobs v. State, 396 So.2d 713 (Fla.1981); Perry v. State, 395 So.2d 170 (Fla.1980). See also Cooper v. State, 336 So.2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977); State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974). We emphasize that we certainly do In view of our decision in this cause, it is important to note the distinction between this case and Hitchcock. In Hitchcock, the fact that nonstatutory mitigating evidence was presented and argued to the court and jury effectively negated Hitchcock's assertion that the evidence was not considered in the sentencing process. Further, there was no evidence the trial judge believed he did not have the authority to consider nonstatutory mitigating factors. See Hitchcock v. State, 432 So.2d 42 (Fla.1983), and 413 So.2d 741 (Fla.), cert. denied, 459 U.S. 960, 103 S.Ct. 274, 74 L.Ed.2d 213 (1982).

not fault the trial judge for his conduct in this matter and, in fact, commend him for his candor.

We agree with the trial judge that the remaining issues are without merit or could have been raised on appeal. With regard to the claim of ineffective assistance of counsel during the penalty phase of the trial, we find no factual dispute concerning counsel's conduct. We conclude, as did the trial judge, that the conduct of Harvard's counsel, given the state of the law on the date the case was tried, reflects reasonable professional judgment, and that appellant has failed to make a...