Jones v. Dugger, No. 73281

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM; EHRLICH; BARKETT; BARKETT
• Citation: 13 Fla. L. Weekly 667,533 So.2d 290
• Parties: 13 Fla. L. Weekly 667 Leo Alexander JONES, Petitioner, v. Richard L. DUGGER, etc., Respondent.
• Docket Number: No. 73281
• Decision Date: 10 November 1988

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533 So.2d 290 13 Fla. L. Weekly 667 Leo Alexander JONES, Petitioner,
v.
Richard L. DUGGER, etc., Respondent. No. 73281. Supreme Court of Florida. Nov. 10, 1988.

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Larry Helm Spalding, Capital Collateral Representative, and Billy H. Nolas, Staff Atty., Office of the Capital Collateral Representative, Tallahassee, for petitioner.

Robert A. Butterworth, Atty. Gen., and Mark C. Menser, Asst. Atty. Gen., Tallahassee, for respondent.

PER CURIAM.

Leo Alexander Jones, a state prisoner under a death warrant, petitions this Court for a stay of execution and a writ of habeas corpus. We have jurisdiction. Art. V, §§ 3(b)(1), 3(b)(5), Fla. Const.

Jones was convicted of first-degree murder in the sniper shooting of Thomas J. Szafranski, a Jacksonville police officer. The trial judge followed the jury recommendation and sentenced Jones to death. The conviction and sentence were affirmed. Jones v. State, 440 So.2d 570 (Fla.1983). Jones later petitioned this Court for a writ of habeas corpus, which was denied. Jones v. Wainwright, 473 So.2d 1244 (Fla.1985). He then made a motion for postconviction relief under rule 3.850, Florida Rules of Criminal Procedure. The trial court denied the motion, and this Court affirmed. Jones v. State, 528 So.2d 1171 (Fla.1988). In order to address Jones' current petition, we have stayed his execution until noon, November 14, 1988.

Jones' primary argument is based on the recent decision of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). In that case, the United States Supreme Court held that introduction of victim impact evidence to a capital punishment sentencing jury violated the eighth amendment to the United States Constitution.

Jones argues that victim impact evidence was improperly introduced into his case in two ways. First, during the penalty phase proceeding, the state presented testimony from the Duval County sheriff to the effect that the sheriff's office was "like a family" and that an officer's death affects a department's operations. Jones also points out that the presentence investigation report contained biographical information about the slain police officer which was necessarily considered by the trial judge because the sentencing order concludes with a eulogy containing this information entitled, "Lest We Forget Thomas J. Szafranski."

The state argues that the sheriff's testimony was not victim impact evidence but was rather directed to the aggravating circumstance of "interference with a governmental function." Further, the state says that the eulogy was no more than a tribute to the slain officer and did not play a part in the judge's determination to sentence Jones to death.

In Grossman v. State, 525 So.2d 833 (Fla.1988), petition for cert. filed (July 25, 1988), the defendant relied upon Booth for the argument that the presentation of victim impact evidence to the sentencing judge tainted his sentence of death. We

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pointed out that Booth was decided in light of the Maryland practice in which a jury is the sentencing authority, whereas in Florida the jury makes only an advisory recommendation to the judge who passes the ultimate sentence. Nevertheless, in view of Booth, we held that henceforth victim impact evidence should not be considered by the judge or the jury in death penalty sentencing.

In Grossman we then considered whether a defendant's failure to object to the introduction of the victim impact...