Johnson v. State, No. 74662

• Court: Florida Supreme Court
• Writing for the Court: HARDING; SHAW; BARKETT
• Citation: 593 So.2d 206
• Parties: 17 Fla. L. Weekly S19 Terrell M. JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 02 January 1992
• Docket Number: No. 74662

Page 206

593 So.2d 206 17 Fla. L. Weekly S19 Terrell M. JOHNSON, Appellant,
v.
STATE of Florida, Appellee. No. 74662. Supreme Court of Florida. Jan. 2, 1992.
Rehearing Denied March 3, 1992.

Page 207

Larry Helm Spalding, Capital Collateral Representative, Martin J. McClain, Chief Asst. CCR, Judith J. Dougherty, Asst. CCR and John S. Sommer, Staff Atty., Office of Capital Collateral Representative, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen. and Barbara C. Davis, Asst. Atty. Gen., Daytona Beach, for appellee.

HARDING, Justice.

Terrell M. Johnson, a prisoner under sentence of death, appeals the trial court's denial of his motion to vacate judgment and sentence filed pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction pursuant to article V, section

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3(b)(1), Florida Constitution, and we affirm the denial of relief.

Johnson was found guilty of the first-degree murder of an Orange County bartender and guilty of the second-degree murder of a bar patron. On the first-degree conviction, the jury recommended and the trial court imposed a sentence of death. 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). Johnson originally filed a motion for post-conviction relief in June 1985. Pursuant to a legislative act passed in June 1985, the circuit court appointed the Office of the Capital Collateral Representative (CCR) to represent Johnson and ordered CCR to replead all issues in the 3.850 motion. On October 6, 1986, Johnson filed his motion for post-conviction relief with the trial court. An evidentiary hearing was held on December 22, 1986. The trial court denied the motion on June 12, 1989. Johnson seeks review of this denial.

Of the fourteen claims ¹ presented in his 3.850 motion, Johnson seeks review of the trial court's rejection of the following twelve: 1) that trial counsel was ineffective for failing to conduct timely investigation and to present compelling mitigation; 2) that the jury was erroneously instructed that a majority vote was required for a life sentence recommendation and that counsel was ineffective for failing to challenge the instruction; 3) that Johnson was denied his right to the independent and competent assistance of a mental health expert; 4) that trial counsel was ineffective for failing to use evidence of voluntary intoxication; 5) that trial counsel was ineffective for failing to depose or impeach the State's ballistics witnesses, for failing to seek independent expert assistance, and for failing to rebut the State's ballistics evidence; 6) that the State violated Brady ² by intentionally withholding evidence of a ballistics test which was subsequently presented to the jury; 7) that statements were obtained from Johnson in violation of Miranda; ³ 8) that the court's reconstruction of the record violated Johnson's rights to a full and fair hearing, equal protection, and effective assistance of counsel; 9) that Johnson's sentence was based upon a mistake of fact regarding the jury's sentencing vote; 10) that counsel was ineffective in failing to move for discharge pursuant to the speedy trial rule of the Interstate Agreement on Detainers (IAD); 11) that the trial court impermissibly diminished the jury's role in sentencing contrary to Caldwell; ⁴ and 12) that the trial court erroneously applied the Florida death penalty as if it were mandatory and mercy could not be applied.

Claim 8 (reconstruction of record) was raised on direct appeal and specifically rejected by this Court. See Johnson, 442 So.2d at 195. Claims 7 (statements by defendant) and 12 (death penalty mandatory) were also raised on direct appeal and summarily rejected by this Court because "we find no support for appellant's other points on appeal and see nothing to be gained by discussing them." Id. at 197. Claims 3 (assistance of mental health expert), 6 (Brady ), and 11 (Caldwell ) could have been raised on direct appeal, but were not. Issues which either were or could have been litigated at trial and upon direct appeal are not cognizable through collateral attack. Smith v. State, 445 So.2d 323, 325 (Fla.1983), cert. denied, 467 U.S. 1220, 104 S.Ct. 2671, 81 L.Ed.2d 375 (1984). Thus, we affirm the trial court's denial of these claims.

Claim 9 (mistake of fact regarding the jury's sentencing vote) is not supported by

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the record. The advisory verdict, the trial court's statement at sentencing, and the sentencing order all indicate that a "majority of the jury recommended that the [d]efendant be sentenced to death." The record also shows that the judge conducted an independent review of the aggravating and mitigating circumstances in determining that "under the evidence and the law of this State a sentence of death is mandated." Thus, the trial court properly denied this claim.

The trial court also properly rejected Johnson's ineffective assistance claims. As noted by the trial court, the test for determining the validity of a claim of ineffective assistance of...