Jackson v. Dugger, s. 73982

• Decision Date: 06 July 1989
• Docket Number: Nos. 73982,74067,s. 73982
• Citation: 14 Fla. L. Weekly 355,547 So.2d 1197
• Parties: 14 Fla. L. Weekly 355 Andrea Hicks JACKSON, Petitioner, v. Richard L. DUGGER, etc., et al., Respondents. Andrea Hicks JACKSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1197

547 So.2d 1197

14 Fla. L. Weekly 355

Andrea Hicks JACKSON, Petitioner, v. Richard L. DUGGER, etc., et al., Respondents.

Andrea Hicks JACKSON, Appellant, v. STATE of Florida, Appellee.

Nos. 73982, 74067.

Supreme Court of Florida.

July 6, 1989.

Rehearing Denied Sept. 20, 1989.

Jeffrey E. Glen of Kaplan, Russin, Vecchi and Kirkwood & Berwin Leighton, New York City, for petitioner/appellant.

Robert A. Butterworth, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for respondents/appellee.

PER CURIAM.

Andrea Hicks Jackson, a state prisoner under sentence and warrant of death, petitions this Court for a writ of habeas corpus, requests a stay of execution, and appeals the trial court's denial of her rule 3.850 motion to vacate or modify the judgment and sentence. We have jurisdiction. Art. V, § 3(b)(9), Fla. Const. Jackson was convicted in February 1984 for the first-degree murder of a police officer. The jury recommended the death penalty, and the trial judge sentenced Jackson to death. The verdict and sentence were affirmed by this Court. Jackson v. State, 498 So.2d 406 (Fla.1986), cert. denied, 483 U.S. 1010, 107 S.Ct. 3241, 97 L.Ed.2d 746 (1987). The Governor signed a death warrant on March 7, 1989, scheduling the date of execution for May 9, 1989.

Jackson filed a motion to stay execution in the trial court pending consideration of her motion for postconviction relief filed in that court on April 6, 1989. Jackson also requested a stay of execution from this Court pending disposition of her petition for writ of habeas corpus. On April 19, 1989, the trial court summarily denied the motion for postconviction relief, and Jackson now appeals that denial. Because some of her claims appeared meritorious, we granted a stay of execution.

Jackson raises four issues in her petition for writ of habeas corpus, only one of which merits discussion. ¹ Jackson argues that victim impact evidence was impermissibly presented to the jury during the penalty phase of her trial in violation of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). The only evidence offered by the state during the penalty phase was the testimony of Sheriff Dale Carson. The sheriff's testimony consisted of statements recounting Officer Bevel's good reputation among his fellow officers in the sheriff's department and detailing the impact the officer's death had on the morale of the other officers and on their ability to effectively carry out their duties. Trial counsel vigorously objected to the introduction of this testimony asserting his belief that the testimony was prejudicial and offered solely to inflame the jurors.

On direct appeal it was further argued that the testimony did not establish any statutory aggravating circumstance. This Court determined that the sheriff's testimony, offered by the state to prove that Jackson killed the officer for the purpose of hindering law enforcement, did not establish this aggravating factor. Because the disruption Jackson caused to law enforcement was to prevent her own arrest, the Court concluded that in such cases the applicable aggravating factor is the commission of the capital offense to avoid lawful arrest or to escape custody and, therefore, consolidated the two factors. The Court went on to state that because the admission of the testimony was presented to prove disruption of law enforcement, which was now consolidated with the aggravating factor of avoiding arrest, the sheriff's testimony was, at most, harmless error.

At the time of Jackson's direct appeal, the United States Supreme Court had not yet decided Booth v. Maryland, in which the Court held that presentation of victim impact evidence to a jury in a capital case violates the eighth amendment of the United States Constitution. The Court reasoned that evidence of victim impact was irrelevant to a capital sentencing decision because this type of information creates a constitutionally unacceptable risk that the jury may impose the death penalty in an arbitrary and capricious manner. Jackson now argues that the penalty phase testimony of Sheriff Dale Carson constitutes victim impact evidence, and thus she is entitled to a new sentencing proceeding under Booth. We agree.

Under this Court's decision in Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980), Booth represents a fundamental change in the constitutional law of capital sentencing that, in the interests of fairness requires the decision to be given retroactive application. We recognized in Grossman v. State, 525 So.2d 833 (Fla.1988), however, that no language in the Booth decision suggests that Booth be applied retroactively to cases in which there was no objection to the victim impact evidence. In this case, trial counsel did institute a timely objection to the introduction of the sheriff's testimony in the lower court and also moved for a mistrial at the close of the testimony. Additionally, this issue was addressed on direct appeal. Therefore, Jackson is not procedurally barred from claiming relief under Booth.

Our review of Sheriff Carson's testimony reveals that he was asked to state his opinion regarding Officer Bevel's reputation among the other officers in the department. He was then asked to describe the impact Officer Bevel's death had on his department and how a police officer's death affects the safety of the community. The victim impact evidence presented to the jury in this case is similar to that which was presented to the jury in Booth. Rather than focusing the jury's attention on the character of the defendant and the circumstances of the crime, the victim impact evidence diverted the jurors' attention to the character and reputation of the victim and the effect of his death on his fellow officers and the safety of the members of the community. The Supreme Court stated in Booth that there is no justification for permitting the decision of who may merit the death penalty "to turn on the perception that the victim was a sterling member of the community rather than someone of questionable character." Booth v. Maryland, 482 U.S. at 506, 107 S.Ct. at 2534 (footnote omitted).

We recognize the sheriff's testimony detailed the impact Officer Bevels' death had on the victim's fellow officers instead of the impact it had on the victim's family. We believe, however, that the presentation of this information serves the same purpose of inflaming the jury; further, it diverts the panel from deciding the case based on the relevant evidence concerning the crime and the defendant. It is clear that the testimony of Sheriff Carson was designed to induce a fear for public safety and to elicit sympathy for the victim.

Victim impact evidence is irrelevant to a capital sentencing decision, and its introduction to the jury creates the risk that the decision to impose the death penalty was made in an arbitrary and capricious manner. Booth v. Maryland, 482 U.S. at 502-03, 107 S.Ct. at 2532-33. The United States Supreme Court recently reaffirmed this principle enunciated in Booth in the case of South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989). In Gathers, comments were included in the prosecutor's closing argument characterizing the victim as a religious man and a civic-minded citizen. Finding these comments "unnecessary to an understanding of the circumstances of the crime," the South Carolina Supreme Court concluded that these comments regarding the personal characteristics of the victim suggested that the defendant deserved to be sentenced to death "because the victim was a religious man and a registered voter." Gathers v. South Carolina, 295 S.C. 476, 484, 369 S.E.2d 140, 144 (1988). In affirming the South Carolina decision, the United States Supreme Court reiterated its decision in Booth by stating once again that " '[a]llowing the jury to rely on [this...