Johnson v. Wainwright

Decision Date28 January 1985
Docket NumberNos. 66445,66458,s. 66445
Parties10 Fla. L. Weekly 85 Larry Joe JOHNSON, Petitioner, v. Louie L. WAINWRIGHT, Respondent. Larry Joe JOHNSON, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Steven Seliger, Quincy, and Baya Harrison, III, Tallahassee, for petitioner/appellant.

Jim Smith, Atty. Gen. and Raymond L. Marky and Mark C. Menser, Asst. Attys. Gen., Tallahassee, for respondent/appellee.

BOYD, Chief Justice.

These two proceedings are before the Court upon (1) a petition for habeas corpus and (2) appeal of the denial in circuit court of a motion to set aside judgment and sentence pursuant to Florida Rule of Criminal Procedure 3.850. The petitioner-appellant, Larry Joe Johnson, is a state prisoner under sentence of death. This Court has jurisdiction of both of these proceedings. Art. V, § 3(b)(1) and (9), Fla. Const. In connection with these two proceedings, Johnson seeks a stay of the scheduled execution of his death sentence. Because we are able to resolve all issues on an expedited basis, we deny the motion for a stay. We deny the habeas petition and affirm the denial of the rule 3.850 motion.

Johnson was charged with the crimes of murder in the first degree and armed robbery. The accusations were tried by a jury and Johnson was convicted on both counts. Under section 921.141, Florida Statutes (1977), a separate sentencing proceeding was held and the jury thereafter recommended death as the appropriate sentence for the murder. The trial court followed the recommendation and sentenced Johnson to death. On appeal, this Court affirmed the convictions and the sentence of death. A discussion of the evidence and the legal issues raised on appeal is found in this Court's opinion reported as Johnson v. State, 442 So.2d 185 (Fla.1983). Upon Johnson's petition to the United States Supreme Court for certiorari, that Court declined to review the case. Johnson v. Florida, --- U.S. ----, 104 S.Ct. 2181, 80 L.Ed.2d 563 (1984).

Johnson seeks a writ of habeas corpus arguing that the lawyers who represented him on his previous appeal to this Court rendered him ineffective assistance of counsel depriving him of a full and meaningful appeal. Therefore, the argument continues, the judgment of conviction and sentence of death and this Court's affirmance of same are invalid unless Johnson be granted a renewed appeal in which to argue points which his previous lawyers, by reason of incompetence, neglected to argue.

A person convicted of a crime, whose conviction has been affirmed on appeal and who seeks relief from the conviction or sentence on the ground of ineffectiveness of counsel on appeal must show, first, that there were specific errors or omissions of such magnitude that it can be said that they deviated from the norm or fell outside the range of professionally acceptable performance; and second, that the failure or deficiency caused prejudicial impact on the appellant by compromising the appellate process to such a degree as to undermine confidence in the fairness and correctness of the outcome under the governing standards of decision. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. State, 457 So.2d 1380 (Fla.1984).

Johnson argues that the lawyers who represented him on appeal were ineffective in that they failed to present on appeal the argument that the trial court had reversibly erred in allowing Johnson to be absent from the courtroom during the testimony of a witness at the sentencing phase. A second allegation of ineffectiveness, based on the lack of appellate argument that the trial court had reversibly erred in allowing challenges for cause to two prospective jurors who expressed reservations about capital punishment has now been withdrawn in view of the United States Supreme Court's decision in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

As is indicated above, the issue before us is, first, whether the decision not to make the argument or the simple omission to do so constitutes a serious error or substantial deficiency and, second, whether the failure of counsel undermines confidence in the correctness of the outcome. Although the petition argues that relief should be granted because the omitted point of appeal, had it been argued, would have been found meritorious by this Court, the merits of that legal point is not before us. It is a matter cognizable only by means of specific objection at trial and presentation on appeal and we will not allow this habeas corpus proceeding to become a direct vehicle for belated appellate review. The question of the merits of the legal point petitioner says should have been argued on appeal is a mere abstraction here, the only concrete issues before us being those pertaining directly to the claim of ineffectiveness of counsel.

Petitioner says that at the sentencing hearing he was erroneously allowed to be absent from the courtroom during the testimony of a witness. The witness in question was a psychologist called to testify on the defendant's behalf. It may be presumed that defense counsel presented the testimony for purposes of establishing mitigating circumstances or negating aggravating circumstances for the purpose of establishing the appropriateness of a sentence of life imprisonment as opposed to a sentence of death, as these are the only issues at a sentencing hearing under section 921.141. It was at the request of defense counsel that Johnson was allowed to be absent during the psychologist's testimony for the defense, and defense counsel told the court that his request was pursuant to the wishes of the witness and, impliedly, the agreement of the defendant, "by prior arrangement." The defendant himself voiced no objection to the procedure and the psychologist thereafter explained to the court that it would not be in the defendant's best interest to hear her testimony about him.

Petitioner now argues that his appellate counsel should have challenged the trial court's action on appeal. Even though there was no objection interposed at trial, petitioner says the matter could have and should have been raised because it was fundamental error. Moreover, even though the action of the trial court was based on defense counsel's affirmative request and waiver of the defendant's presence, petitioner says it should have been raised because either the presence of the accused at all phases of the trial is non-waivable or such waiver can be made only by the defendant himself, knowingly and intelligently, into which factors the trial court was obliged to inquire before granting the request, the defendant's silence by itself, according to the argument, being insufficient as a waiver.

In arguing that there was error that should have been raised on appeal, petitioner relies upon Francis v. State, 413 So.2d 1175 (Fla.1982), along with numerous other decisions concerning the right of an accused person to be present in court at all critical stages of the proceedings against him, including the entire trial proper. In Francis the examination of prospective jurors began in the defendant's absence at the instance of the court and the exercise of peremptory challenges took place in camera with the defendant excluded without his express consent. This Court applied the "knowing and intelligent waiver" standard of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), in holding the involuntary exclusion of the defendant to be error.

The state very persuasively points out that what happened at petitioner's trial is vastly different from Francis and other cases where the accused is excluded against his will from a part of the proceeding where his presence in the courtroom is important to fairness of the trial. The state argues that in this situation appellate counsel could not have successfully raised the matter on appeal after defense counsel had so explicitly waived the point at trial, citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1972), Castor v. State, 365 So.2d 701 (Fla.1978), and other cases.

The right of the accused to be present in the courtroom throughout his trial derives from and is an effectuation of, we believe, two constitutional rights of the accused under the sixth amendment to the United States Constitution: the right "to be confronted with the witnesses against him" and the right "to have the assistance of counsel for his defense." The former guarantees the right of cross examination and guards against "conviction ... upon depositions or ex parte affidavits." Dowdell v. United States, 221 U.S. 325, 330, 31 S.Ct. 590, 55 L.Ed. 753 (1911). The latter pertains in this context to the presence of the accused when his presence is important to the fairness of the proceeding. Just as the accused has the right to the assistance of counsel, he also has the right to assist his counsel in conducting the defense. See Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934); See also Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Thus in Francis the defendant's presence during the exercise of peremptories was deemed important because of the aid the accused could have given to his counsel. At petitioner's trial, the witness who testified during his voluntary absence was testifying on the defendant's behalf rather than against him. Moreover, as defense counsel represented to the court without objection by the defendant that his absence had been agreed upon "by prior arrangement," it appears that consultation between the accused and...

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