Johnson v. Singletary, 81121

• Decision Date: 29 January 1993
• Docket Number: No. 81121,81121
• Citation: 612 So.2d 575
• Parties: 18 Fla. L. Week. S90 Larry Joe JOHNSON, Sr., Petitioner, v. Harry K. SINGLETARY, Respondent.
• Court: Florida Supreme Court

Page 575

612 So.2d 575

18 Fla. L. Week. S90

Larry Joe JOHNSON, Sr., Petitioner, v. Harry K. SINGLETARY, Respondent.

No. 81121.

Supreme Court of Florida.

Jan. 29, 1993.

Steven L. Seliger, Quincy, and Larry Helm Spalding, Capital Collateral Representative, Martin J. McClain, Chief Asst. Capital Collateral Representative, and Gail E. Anderson, Asst. Capital Collateral Representative, Tallahassee, for petitioner.

Robert A. Butterworth, Atty. Gen. and Carolyn M. Snurkowski and Mark S. Menser, Asst. Attys. Gen., Tallahassee, for respondent.

PER CURIAM.

Larry Joe Johnson, a prisoner under sentence of death and the governor's death warrant, petitions this Court for writ of habeas corpus, extraordinary relief, a stay of execution, and oral argument. We have jurisdiction. Art. V, Secs. 3(b)(1), (9), Fla.Const.

The facts of Johnson's crime and the procedural history of this case are recited in the prior opinions of this Court and the federal courts. Johnson v. Dugger, 932 F.2d 1360 (11th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 427, 116 L.Ed.2d 446 (1991); Johnson v. Wainwright, 778 F.2d 623 (11th Cir.1985), cert. denied, 484 U.S. 872, 108 S.Ct. 201, 98 L.Ed.2d 152 (1987); Johnson v. Dugger, 520 So.2d 565 (Fla.1988); Johnson v. Wainwright, 463 So.2d 207 (Fla.1985); Johnson v. State, 442 So.2d 185 (Fla.1983) (direct appeal), cert. denied, 466 U.S. 963, 104 S.Ct. 2182, 80 L.Ed.2d 563 (1984).

Petitioner has raised only one issue meriting any discussion. ¹ In Sochor v. Florida, --- U.S. ----, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), the United States Supreme Court held that

there is Eighth Amendment error when the sentencer weighs an "invalid" aggravating circumstance in reaching the ultimate decision to impose a death sentence.

--- U.S. at ----, 112 S.Ct. at 2119. Because the Florida penalty-phase jury is a co-sentencer under Florida law, id.; Espinosa v. Florida, --- U.S. ----, ----, 112 S.Ct. 2926, 2928, 120 L.Ed.2d 854 (1992), the Eighth Amendment prohibition applies with equal vigor to what the jury actually weighs in its deliberations. However, since Florida juries do not issue findings as to aggravating and mitigating factors, the courts are required to presume that unsupported factors did not weigh with the jury, provided the jury was properly instructed. Put another way,

a jury is unlikely to disregard a theory flawed in law, [but] it is indeed likely to disregard an option simply unsupported by evidence.

Sochor, --- U.S. at ----, 112 S.Ct. at 2122.

In Espinosa the Supreme Court held invalid a standard jury instruction on the aggravating factor of heinous, atrocious, or cruel. The improper instruction had defined the factor as "especially wicked, evil, atrocious or cruel." Espinosa, --- U.S. at ----, 112 S.Ct. at 2927. Thus, under Sochor and Espinosa, an error would exist if the jury was instructed improperly on the heinous, atrocious or cruel factor, whether or not the trial court in its written findings found the same factor to be present. Conversely, no error is present if the jury was properly instructed, even though the heinous, atrocious, or cruel factor could not have existed as a matter of law. ²

Johnson contends that his penalty-phase jury was instructed contrary to the precepts of Espinosa and Sochor, in part because the trial court later found the heinous, atrocious, or cruel factor inapplicable here. We find that this claim is procedurally barred for Johnson's failure to object to the instruction based on vagueness or other constitutional defect. ³ Kennedy v. Singletary, 602 So.2d 1285 (Fla.), cert. denied, --- U.S. ----, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992).

Johnson also devotes some argument to the holding in Richmond v. Lewis, --- U.S. ----, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992), regarding the judicial adoption of narrowing constructions of aggravating factors. On this point, it is clear that Florida has adopted a narrowing construction of its heinous, atrocious, or cruel factor, e.g., Richardson v. State, 604 So.2d 1107, 1109 (Fla.1992), that has tracked the language cited as acceptable in Sochor, --- U.S. at ----, 112 S.Ct. at 2121. This is all that Richmond requires. We therefore will not presume to hold the narrowing language invalid at this juncture.

Finally, Johnson's petition mentioned the then-pending case of Lockhart v. Fretwell, --- U.S. ----, 112 S.Ct. 1935, 118 L.Ed.2d 542 (1992) (granting certiorari), as a possible grounds for relief. We find that the recent opinion in Lockhart v. Fretwell, --- U.S. ----, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), provides no basis for relief.

For the foregoing reasons, we deny the motion that this case be set for oral argument and find that Johnson is entitled to none of the requested relief. The petition for habeas corpus is denied. No petition for rehearing will be entertained.

It is so ordered.

OVERTON, McDONALD, GRIMES and HARDING, JJ., concur.

BARKETT, C.J., concurs in result only with an opinion.

SHAW, J., concurs in result only.

KOGAN, J., concurs specially with an opinion, in which BARKETT, C.J., and SHAW, J., concur.

BARKETT, Chief Justice, concurring specially.

I concur with Justice Kogan's opinion. I would add, however, that relative to footnote 2 in the majority opinion, the law prohibits a judge from giving a jury instruction for which there is no evidentiary support.

KOGAN, Justice, specially concurring.

This case more than amply illustrates the problems inherent in applying procedural bars to death cases. When this death warrant is executed, Florida will electrocute a man injured and most probably maimed psychologically while serving in his nation's military in Vietnam and elsewhere. This will happen even though it is clear that, had this case been tried today, the procedures used in the trial court below would have been self-evidently defective. The court record in this case leads me to the disturbing conclusion that the legal system has failed to give Larry Joe Johnson even one particle of credit for his honorable service to his country or for the injury and disability he suffered while in the armed forces of the United States.

Prior to injuries he sustained while on military duty in 1974, Johnson was a man with a good military record of more than twelve years' duration, including stints in the Navy and National Guard. People described him as bighearted and friendly despite being abandoned at birth by both parents and left to his grandmother's care. He was decorated during two tours of duty totaling some fifteen months in Vietnam. Johnson enlisted to serve in Vietnam, and he did so because he had admired the military all his life. His grandmother's home was next to a National Guard installation, where Johnson as a child had watched the men in arms, wanting to be like them. He fulfilled that dream.

One of the men assigned to Johnson's unit in the National Guard testified that, prior to the 1974 accident, Johnson was a good and friendly man who had risen to the rank of sergeant. He was liked by the men he commanded, and they were "tight" friends. Another National Guardsman who maintained personnel records said that, prior to the accident, Johnson

was very happy-go-lucky. He also believed in having a good time, kind of life of the party, a big cut-up and no pr[o]blems. He was an average run-of-the-mill person.

This same man said Johnson had no disciplinary problems on his military record and was "well liked" by the other men.

But after a freak head injury on military maneuvers in 1974, ⁴ Johnson descended into madness so severe he was hospitalized for ten months. He was ruled disabled, unable to continue his military service. After his later release from hospital and medical discharge from the military, Johnson could not control himself in the military manner he once had mastered. One psychologist said it was shameful that the military psychiatrists had failed to continue treatment of a man whose injury had transformed him into a "time bomb," a man who had even urged these psychiatrists to see that his own children be taken from him because he knew he could not control his temper any longer.

The threat was real. As time passed, Johnson's condition deteriorated still more. He became paranoid and argued with his wife and her brother. The latter fought back, and Johnson responded by carrying a gun at all times. In 1977, Johnson shot his wife. For this offense he served time for aggravated assault. The penalty in the present case was aggravated in part because of Johnson's probationary status and the fact that he had committed a prior violent felony. Ironically, these factors are most probably a result of Johnson's emotional collapse, for which he has been given no mitigating credit whatsoever.

There was psychological testimony at trial suggesting the reasons why Johnson lost control of his own mind. An expert in post-traumatic stress disorder ⁵ suffered by Vietnam veterans indicated that the 1974 injury not only may have left some brain damage, but it also reawakened the nightmarish experiences Johnson had endured in Vietnam.

One experience in particular had bothered Johnson tremendously: He had witnessed a close friend named Mack drive a truck over a Vietnamese land mine, which exploded. Almost nothing identifiable was left of Mack's body, but Johnson had run forward to try to help. Johnson had searched through the debris and couldn't understand why he could not find Mack. On other occasions in Vietnam, Johnson had a bulldozer blown out from under him; he was held at gunpoint by two Vietnamese; and he witnessed a Vietnamese stab a friend standing next to him.

This same expert witness testified that, at the time of the murder, Johnson was under extreme emotional disturbance directly related to post-traumatic stress disorder. This witness made the following observations of the psychiatric treatment Johnson received in the military psychiatric units:

[Johnson was a] walking time bomb. When I read over the...