Johnson v. Singletary, 85028
| Decision Date | 19 December 1996 |
| Docket Number | No. 85028,85028 |
| Citation | 695 So.2d 263 |
| Parties | 22 Fla. L. Weekly S31, 22 Fla. L. Weekly S339 Terrell M. JOHNSON, Petitioner, v. Harry K. SINGLETARY, Respondent. |
| Court | Florida Supreme Court |
Martin J. McClain, Chief Assistant CCR, Office of the Capital Collateral Representative, Tallahassee, for Petitioner.
Robert A. Butterworth, Attorney General; and Mark S. Dunn and Kenneth S. Nunnelley, Assistant Attorneys General, Daytona Beach, for Respondent.
Terrell M. Johnson petitions this Court for writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(9), Fla. Const.
Johnson was convicted of first-degree murder and sentenced to death in 1980. The decision was first appealed to this Court in 1980, but the transcript of the proceedings was discovered to be incomprehensible. This Court relinquished jurisdiction to reconstruct the record and hold an evidentiary hearing as to its accuracy. The supplemental transcript was submitted to this Court, and was examined on direct appeal. This Court affirmed both the conviction and the sentence in Johnson v. State, 442 So.2d 193 (Fla.1983), cert. denied, 466 U.S. 963, 104 S.Ct. 2181, 80 L.Ed.2d 563 (1984). The trial court denied Johnson's rule 3.850 motion; this Court affirmed that denial in Johnson v. State, 593 So.2d 206 (Fla.1992), cert. denied, 506 U.S. 839, 113 S.Ct. 119, 121 L.Ed.2d 75 (1992). Johnson filed a petition for writ of habeas corpus on January 18, 1995. He filed a supplemental writ raising an additional issue on February 8, 1995. He raises a total of twenty-three issues.
Johnson argues: (1) this Court's ruling that his brief on direct appeal could not exceed 70 pages denied effective assistance of counsel because he could not appeal those matters that did not fit within the limited brief; (2) counsel was ineffective for failing to properly raise the issue that Johnson's death sentence resulted from consideration of constitutionally invalid aggravating factors and improper jury instructions as to those factors; (3) counsel was ineffective for failing to properly raise the issue that the jury received an unconstitutional instruction regarding reasonable doubt, compounded by improper prosecutorial comment; (4) counsel was ineffective for failing to properly raise the issue that Johnson was denied his right to the independent and competent assistance of a mental health expert when the judge appointed an employee of the sheriff's office to interrogate him and report what Johnson said to the judge and the State; (5) counsel was ineffective for failing to properly raise the issue of the State's intentional withholding of the fact that it had conducted a ballistics test and the corresponding exhibits, and that this misleading evidence was improperly presented to the jury at both the guilt and penalty phases; (6) counsel was ineffective for failing to properly raise the issue that Johnson's statements were obtained in violation of his fifth, sixth, eighth, and fourteenth amendment rights, and the State violated due process by concealing the violations there was a Brady violation because police reports regarding the interrogation were inconsistent with the testimony as transcribed; (7) Johnson was denied a full and fair hearing on the trial court's attempted reconstruction of the record and the procedure used; (8) counsel was ineffective for failing to move to disqualify the reconstruction hearing judge after learning he had received an improper communication from the original (recused) trial judge, and for failing to raise this point on direct appeal; (9) counsel was ineffective for failing to properly raise the issue that Johnson was not allowed to be present at the reconstruction hearings; (10) counsel was ineffective for failing to properly raise the issue of Johnson's absence from critical stages of jury selection at trial and unrecorded bench conferences; (11) the right to an impartial jury was compromised because of unrecorded bench conferences during which jurors were questioned and cause and peremptory challenges were discussed, denying meaningful review and effective assistance of counsel; (12) counsel was ineffective for failing to properly raise the issue on direct appeal that Johnson and counsel were not present when the court communicated with the jury regarding the jury's request to rehear testimony from trial; (13) counsel was ineffective because of the assistant attorney general's improper attacks on the credibility of appellate counsel; (14) counsel was ineffective for failing to properly raise the the issue of the judge's and jury's consideration of nonstatutory aggravating factors; (15) counsel was ineffective for failing to properly raise a double jeopardy argument regarding the trial court's use of the death of the other victim--for which Johnson had been acquitted of first-degree murder--to support an aggravating factor as to Johnson's conviction of first-degree murder for the victim in the instant case; (16) the death sentence was unfair and unreliable because of the prosecutor's inflammatory argument to the jury at sentencing; (17) counsel was ineffective for failing to properly raise the sentencing court's refusal to find mitigating circumstances clearly set out in the record; (18) counsel was ineffective for failing to properly raise the issue that improper penalty-phase jury instructions shifted the burden to Johnson to prove death was inappropriate and an improper standard was employed in sentencing; (19) counsel was ineffective for failing to properly raise the impropriety of arguments and instructions to the sentencing jury which diluted their sense of responsibility for sentencing; (20) review on direct appeal was inadequate because the trial court's sentencing order failed to provide a reasoned judgment regarding the penalty; (21) the death sentence is invalid because the trial judge applied Florida's capital sentencing statute as if it required a mandatory death sentence; (22) the combination of excessive procedural and substantive errors at the trial and appellate proceedings cannot be harmless when viewed as a whole; and (23) counsel was ineffective for failing to properly raise the trial court's improper instruction of the jury as to the elements of robbery, which was the underlying felony supporting the felony murder charge.
Johnson's reply contained an affidavit from Johnson alleging that the State made false assertions in its response. This affidavit, and the State's subsequent motion to strike, generated a series of motions which devolved into a series of personal attacks and name calling on both sides which the Court finds both unfortunate and unprofessional. This Court denied the State's motion to strike on June 30, 1995, rendering the other motions moot as well.
All of Johnson's twenty-three claims are either procedurally barred--because they were either already examined on the merits by this Court on direct appeal or in Johnson's 3.850 proceeding, or because they could have been but were not raised in any earlier proceeding--or meritless. We therefore deny his petition.
Claims 5 (ballistics), 6 (improper statements), and 21 (mandatory application of death penalty) were specifically considered by this Court on direct appeal and in the 3.850 motion appeal; thus those claims are procedurally barred even if couched in ineffective assistance language. 1
Claims 7 through 12 all relate to the reconstruction of the record and the process used. This issue has also been fully considered on direct appeal and in the 3.850 proceeding. Johnson v. State, 442 So.2d at 195; Johnson v. State, 593 So.2d at 208. Therefore, these claims are barred as well.
Claims 2 (jury considered constitutionally invalid aggravators), 3 (unconstitutional reasonable doubt instruction), 15 (double-jeopardy argument), 16 (prosecutor's argument), 18 (burden-shifting instructions), 20 (inadequate sentencing order), and 23 (improper robbery instruction) were not preserved for review and are therefore barred. These claims should have been raised in earlier proceedings; thus, they cannot be considered for the first time here.
In claim 1 (page limitation of initial brief), Johnson argues that when this Court refused to accept his original ninety-four page brief--imposing instead a seventy page limit--he was both denied effective assistance of counsel and precluded from appealing those matters that did not fit within his limited brief. This case occurred before we had adopted a policy of allowing briefs of up to one hundred pages in capital cases as a matter of course. An "exception" to the fifty page-limit prescribed by rule was, therefore, still an "exception" to the rule. We are unpersuaded that the enlargement granted to Johnson was inadequate. While the enlargement may have been shorter than what Johnson wanted, it was certainly longer than the limit prescribed by rule. We do not find any prejudice, especially since the brief did not even use the full seventy pages allowed. This issue is without merit.
Of the remaining issues, 4 (mental health expert), 13 (attorney general's attacks on credibility of counsel), 14 (jury's consideration of nonstatutory aggravators), 17 (mitigating circumstances not found by trial court), and 19 (dilution of jury's responsibility for sentencing) all involve allegations of ineffective assistance of appellate counsel. The test for determining ineffective assistance of appellate counsel is two-fold: Suarez v. Dugger, 527 So.2d 190, 192-93 (Fla.1988). None of Johnson's claims satisfy this test.
As to claim 4 (mental health expert), Johnson raised this issue in his 3.850 motion: he...
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