James v. State

• Decision Date: 04 March 1993
• Docket Number: No. 78161,78161
• Citation: 615 So.2d 668
• Parties: 18 Fla. L. Week. S139 Davidson Joel JAMES, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 668

615 So.2d 668

18 Fla. L. Week. S139

Davidson Joel JAMES, Appellant, v. STATE of Florida, Appellee.

No. 78161.

Supreme Court of Florida.

March 4, 1993.

Larry Helm Spalding, Capital Collateral Representative and Mary Elizabeth Wells, Asst. CCR, Office of the Capital Collateral Representative, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen. and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.

McDONALD, Justice.

Davidson Joel James, a prisoner on death row, appeals the trial court's summary denial of his second motion for postconviction relief. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const.; Fla.R.Crim.P. 3.850. We reverse the trial court's order and direct the court to conduct a new penalty proceeding and resentence James.

A jury convicted James of first-degree murder, attempted first-degree murder, and armed robbery and recommended that he be sentenced to death, which the trial court did. We affirmed his convictions and sentences on direct appeal. James v. State, 453 So.2d 786 (Fla.), cert. denied, 469 U.S. 1098, 105 S.Ct. 608, 83 L.Ed.2d 717 (1984). After the signing of his death warrant in 1986, we denied James' petition for writ of habeas corpus and affirmed the trial court's denial of his first motion for postconviction relief. James v. Wainwright, 484 So.2d 1235 (Fla.), cert. denied, 477 U.S. 909, 106 S.Ct. 3285, 91 L.Ed.2d 574 (1986); James v. State, 489 So.2d 737 (Fla.1986). ¹

In the instant appeal James raises eight issues ² based on Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), and argues that the trial court erred in summarily denying his motion. The trial court denied the motion without a hearing and held that no Hitchcock error occurred and that the other issues were procedurally barred because they could have been raised or were raised previously. Cf. Davis v. State, 589 So.2d 896 (Fla.1991) (Hitchcock is not broad enough to lift the procedural bar of non-Hitchcock issues). We agree with the trial court's ruling except for one issue.

While this appeal was pending, the United States Supreme Court declared our former instruction on the heinous, atrocious, or cruel aggravator inadequate. Espinosa v. Florida, --- U.S. ----, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). Claims that the instruction on the heinous, atrocious, or cruel aggravator is unconstitutionally vague are procedurally barred unless a specific objection on that ground is made at trial and pursued on appeal. ³ Melendez v. State, 612 So.2d 1366 (Fla.1992). James, however, objected to the then-standard instruction at trial, asked for an expanded instruction, and argued on appeal against the constitutionality of the instruction his jury received. Because of this it would not be fair to deprive him of the Espinosa ruling.

In closing argument the state attorney argued forcefully that the murder was heinous, atrocious, or cruel. On appeal, on the other hand, we held that the facts did not support finding that aggravator. James, 453 So.2d at 792. Striking that aggravator left four valid ones to be weighed against no mitigators, and we believe that the trial court's consideration of the invalid aggravator was harmless error. We cannot say beyond a reasonable doubt, however, that the invalid instruction did not affect the jury's consideration or that its recommendation would have been the same if the requested expanded instruction had been given. Therefore, we reverse the trial court's order as to the last issue regarding the constitutionality of the instruction on the heinous, atrocious, or cruel aggravator. The trial court is directed to empanel a new jury, to hold a new sentencing proceeding, and to resentence James.

It is so ordered.

BARKETT, C.J., and OVERTON, SHAW and HARDING, JJ., concur.

KOGAN, J., concurs in result only.

GRIMES, J., dissents with an opinion.

GRIMES, Justice, dissenting.

Ten years ago Davidson Joel James was convicted and sentenced to death. One of his arguments on appeal was that the standard jury instruction on heinous, atrocious, and cruel given in his case was vague. We rejected this argument, and the United States Supreme Court denied James's petition for certiorari. James v. State, 453 So.2d 786 (Fla.), cert. denied, 469 U.S. 1098, 105 S.Ct. 608, 83 L.Ed.2d 717 (1984). Several years later, the United States Supreme Court held that an instruction on heinous, atrocious, and cruel, similar to that given in James's case, was unconstitutionally vague. Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). The standard jury instruction was then changed to correct the defect. However, this Court held that because the judge, rather than the jury, was the sentencer in Florida, the vagueness of the jury instruction was not fatal. Smalley v. State, 546 So.2d 720 (Fla.1989). The United States Supreme Court has now held that because judges are required to pay deference to the jury's sentencing recommendation in Florida, the vague jury instruction on heinous, atrocious, and cruel requires reversal absent a finding of harmless error. Espinosa v. Florida, --- U.S. ----, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992).

Obviously, any defendant who objected to the erroneous instruction and whose case is not final is entitled to the benefit of Espinosa. However, I do not believe that Espinosa should be given retroactive effect. 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), which was also a death case, this Court considered the circumstances under which a change of law should be given retroactive effect in proceedings for postconviction relief. We held:

We emphasize at this point that only major constitutional changes of law will be cognizable in capital cases under Rule 3.850. Although specific determinations regarding the significance of various legal developments must be made on a case-by-case basis, history shows that most major constitutional changes are likely to fall within two broad categories. The first are those changes of law which place beyond the authority of the state the power to regulate certain conduct or impose certain penalties. This category is exemplified by Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), which held that the imposition of the death penalty for the crime of rape of an adult woman is forbidden by the eighth amendment as cruel and unusual punishment. The second are those changes of law which are of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of Stovall [v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) ] and Linkletter [v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) ]. Gideon v. Wainwright, [372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ] of course, is the prime example of a law change included within this category.

In contrast to these jurisprudential upheavals are evolutionary refinements in the criminal law, affording new or different standards for the admissibility of evidence, for procedural fairness, for proportionality review of capital cases, and for other like matters. Emergent rights in these categories, or the retraction of former rights of this genre, do not compel an abridgement of the...