Johnson v. Singletary
| Decision Date | 19 May 1994 |
| Docket Number | Nos. 83690,83701,s. 83690 |
| Parties | 19 Fla. L. Weekly S337 Marvin Edwin JOHNSON, Petitioner, v. Harry K. SINGLETARY, etc., Respondent. Marvin Edwin JOHNSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Billy H. Nolas and Julie D. Naylor, Ocala, and Steven J. Uhlfelder of Holland & Knight, Tallahassee, for petitioner/appellant.
Robert A. Butterworth, Atty. Gen. and Mark C. Menser, Asst. Atty. Gen., Tallahassee, for respondent/appellee.
Marvin Johnson, a State prisoner for whom a fourth death warrant has been signed, petitions this Court for a writ of habeas corpus and requests a stay of his execution. He also appeals from the denial of his second motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction under article V, sections 3(b)(1) and (9) of the Florida Constitution.
Johnson was convicted of the 1978 murder of Woodrow Moulton, a pharmacist. According to the testimony of eyewitness Gary Summitt, Johnson entered the pharmacy with a gun and forced Moulton to give him drugs and money out of the safe. When Johnson started toward the front of the store, Moulton grabbed a gun from behind the counter. There was an exchange of gunfire, and Moulton continued to fire at Johnson until his gun was empty. Moulton then stood up with his hands in the air. Johnson walked to within a foot and a half of Moulton and said, "You think you're a smart son of a bitch, don't you?" He then shot Moulton once in the chest.
Johnson was convicted of first-degree murder and robbery. Although the jury recommended a life sentence, the trial judge overrode the recommendation and imposed the death penalty. The judge found five aggravating factors: (1) Johnson was under sentence of imprisonment at the time of the murder; (2) Johnson had previously been convicted of a violent felony; (3) Johnson knowingly created a great risk to many persons; (4) the murder was committed during the course of an armed robbery; and (5) though not especially heinous, the murder was atrocious and cruel. Secs. 921.141(5)(a), (b), (c), (d), (h), Fla.Stat. (1977). The judge found no mitigating factors. On direct appeal this Court affirmed the conviction and sentence. Johnson v. State, 393 So.2d 1069 (Fla.1980), cert. denied, 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981) (Johnson I ). Johnson then filed a petition for habeas corpus in federal district court which was denied. This ruling was affirmed by the United States Court of Appeals in Johnson v. Wainwright, 806 F.2d 1479 (11th Cir.1986), cert. denied, 484 U.S. 872, 108 S.Ct. 205, 98 L.Ed.2d 157 (1987) (Johnson II ). Johnson next filed a petition for writ of habeas corpus in this Court which was denied. Johnson v. Dugger, 523 So.2d 161 (Fla.1988) (Johnson III ). Thereafter, Johnson filed a motion for postconviction relief which was denied, and this Court affirmed. Johnson v. State, 536 So.2d 1009 (Fla.1988) (Johnson IV ). Johnson
then filed a second petition for habeas corpus in federal district court which was denied. This ruling was affirmed in Johnson v. Singletary, 938 F.2d 1166 (11th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 361, 121 L.Ed.2d 274 (1992) (Johnson V ).
Johnson's primary argument 1 centers on this Court's treatment of the aggravating factors in its opinion on direct appeal. In the majority opinion, Justices Adkins, Boyd, England, and Alderman held that the trial court had erroneously found the aggravating factor that Johnson created a great risk of death to many persons. Johnson I, 393 So.2d at 1073. Because there were four other valid aggravating circumstances and no mitigating circumstances, the Court concluded that death was the appropriate sentence to be imposed. Id. at 1074. However, Justice England concurred specially with an opinion in which he did not characterize the killing as atrocious or cruel but concluded that his disagreement on this point was irrelevant to the outcome of the case. Id. at 1074 (England, J., concurring specially). Justices Sundberg, Overton, and McDonald dissented to the imposition of the death penalty because of their belief that the judge's override violated the standard of Tedder v. State, 322 So.2d 908 (Fla.1975). Johnson I, 393 So.2d at 1075 (Sundberg, C.J., concurring in part, dissenting in part); id. at 1075-76 (McDonald, J., dissenting).
Johnson argues that the United States Supreme Court's decision in Richmond v. Lewis, --- U.S. ----, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992), has the effect of invalidating his sentence. Richmond was convicted of first-degree murder and sentenced to death in Arizona. The trial judge found three aggravating circumstances: (1) prior violent felony; (2) especially heinous, cruel, or depraved; (3) prior felony meriting life imprisonment. --- U.S. at ----, 113 S.Ct. at 528. He found no mitigating circumstances sufficiently substantial to call for leniency. Id. at ----, 113 S.Ct. at 533. The conviction and sentence were affirmed by a divided Arizona Supreme Court. Two of the five justices joined in the principal opinion which held that all three aggravating circumstances were applicable. Two concurring justices stated that the crime was not especially heinous, cruel, or depraved but concluded that death was appropriate in any event. The dissenting justice argued that the murder was not especially heinous, cruel, or depraved and that the mitigating evidence precluded a death sentence. Id.
On petition for certiorari, the United States Supreme Court reversed the court of appeals which had affirmed the denial of Richmond's petition for habeas corpus. Id. at ----, 113 S.Ct. at 534. The Court reasoned that less than a majority of the Arizona Supreme Court had agreed to the applicability of the aggravating factor of especially heinous, cruel, or depraved and that in view of the elimination of that factor the court had not engaged in the necessary harmless error analysis or reweighing at the trial or appellate levels. Id. at ----, 113 S.Ct. at 537.
Johnson argues that because this Court rejected the aggravating factor of creating great risk to many persons and that only three justices specifically approved the aggravating factor of heinous, atrocious, or cruel, he is entitled to the same relief as Richmond. While there are certainly similarities with Richmond v. Lewis, we note some substantial differences. In Richmond, three out of the five justices specifically rejected the aggravating factor of especially heinous, cruel, or depraved. In Johnson's appeal, while only three justices specifically approved of the application of heinous, atrocious, or cruel, only Justice England rejected it. The dissenting opinions were based upon the validity of the override and had nothing to do with the aggravating factor of heinous, atrocious, or cruel. In fact, Justice Sundberg acknowledged the existence of four aggravating circumstances. More important, however, is the fact that in Richmond the aggravating factor of especially heinous, cruel, or depraved was unconstitutionally vague at the time the trial judge rendered his sentence. The Arizona Supreme Court had not provided an adequate narrowing construction of that aggravating factor until Richmond's sentence was on appeal. In Florida, this Court had accomplished the requisite narrowing of the comparable aggravating factor well before Johnson's sentence was imposed. 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); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). The importance of this distinction is highlighted when Justice O'Connor summarized the Court's ruling in Richmond by saying:
Petitioner's death sentence was tainted by Eighth Amendment error when the sentencing judge gave weight to an unconstitutionally vague aggravating factor. The Supreme Court of Arizona did not cure this error, because the two justices who concurred in affirming the sentence did not actually perform a new sentencing calculus. Thus the sentence, as it stands, violates the Eighth Amendment.
Richmond, --- U.S. at ----, 113 S.Ct. at 537.
Independent of any comparison of Richmond to the instant case, Johnson cannot prevail because his petition is procedurally barred. In his first petition for habeas corpus in federal court, Johnson specifically argued that this Court erred in refusing to remand the issue of sentencing to the trial court where we disapproved of one of the aggravating circumstances and where the majority decision could not agree on the applicability of the aggravating circumstance of heinous, atrocious, or cruel. In specifically rejecting this contention, the federal district judge held that this Court had not acted arbitrarily in concluding that the trial judge's error in determining the aggravating circumstances was harmless. While noting the split among the justices with respect to how many aggravating circumstances were supported by the evidence, the judge held that he could not conclude that the imposition of a death sentence under these circumstances was irrational or arbitrary. Johnson did not pursue this point on appeal as noted by the federal appellate court in footnote 5:
Those issues which were raised before the district court and have not been asserted on appeal are deemed abandoned (i.e., the trial judge's application of the Tedder standard; the admission of interior photographs and an alleged due process violation for failure to remand).
Johnson II, 806 F.2d at 1481 n. 5. In his previous petition for habeas corpus in this Court, Johnson also unsuccessfully argued that resentencing was required because we had rejected one of the aggravating circumstances found by the trial judge.
Successive habeas corpus petitions seeking the same relief are not permitted nor can new claims be raised in a second petition when the...
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