Kennedy v. Singletary, 80129
| Decision Date | 16 July 1992 |
| Docket Number | No. 80129,80129 |
| Citation | 602 So.2d 1285 |
| Parties | Edward D. KENNEDY, Petitioner, v. Harry K. SINGLETARY, etc., et al., Respondent. 602 So.2d 1285, 17 Fla. L. Week. S464 |
| Court | Florida Supreme Court |
Billy H. Nolas and Julie D. Naylor, Ocala, for petitioner.
Robert A. Butterworth, Atty. Gen. and Richard B. Martell, Asst. Atty. Gen., Tallahassee, for respondent.
Edward D. Kennedy, a prisoner under sentence of death and the governor's death warrant, petitions this Court for writ of habeas corpus. We have jurisdiction. Art. V, Secs. 3(b)(1), (9), Fla. Const.
The facts of Kennedy's crime and the procedural history of this case are recited in the prior opinions of this Court and the federal courts. Kennedy v. Dugger, 933 F.2d 905 (11th Cir.1991) (habeas), cert. denied, --- U.S. ----, 112 S.Ct. 957, 117 L.Ed.2d 124 (1992); Kennedy v. Singletary, 599 So.2d 991 (Fla.1992), cert. denied, --- U.S. ----, 112 S.Ct. 3040, 120 L.Ed.2d 909 (1992); Kennedy v. State, 547 So.2d 912 (Fla.1989) (appeal 3.850); Kennedy v. Wainwright, 483 So.2d 424 (Fla.) (habeas), cert. denied, 479 U.S. 890, 107 S.Ct. 291, 93 L.Ed.2d 265 (1986); Kennedy v. State, 455 So.2d 351 (Fla.1984) (direct appeal), cert. denied, 469 U.S. 1197, 105 S.Ct. 981, 83 L.Ed.2d 983 (1985).
We find that the issues raised by this petitioner have been litigated, or should have been litigated, in these prior proceedings and thus are procedurally barred. There was no objection at trial made to the wording of the instruction on heinous, atrocious, or cruel. The objection went only to the applicability of that factor in this case. We also note that Kennedy's last petition for certiorari to the United States Supreme Court was denied on the same date that the high Court issued Espinosa v. Florida, --- U.S. ----, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), upon which Kennedy now relies. We cannot conceive that the United States Supreme Court would have denied certiorari had it found a valid Espinosa claim in this case. In any event, even if not procedurally barred, the error in giving the instruction and the error in the instruction's wording clearly are harmless beyond any reasonable doubt, in light of the entire record in this case. Accordingly we deny the motion that this case be set for oral argument and find that Kennedy is entitled to no relief.
It is so ordered.
NO MOTION FOR REHEARING WILL BE ALLOWED.
I continue to stand by my concurring opinion in Kennedy v. Singletary, 599 So.2d 991 (Fla.1992) (Kogan, J., concurring specially), cert. denied, --- U.S. ----, 112 S.Ct. 3040, 120 L.Ed.2d 909 (1992). And in light of the facts recited in that opinion, I believe that Kennedy--at least to my mind--may in fact have a valid claim under the recent Espinosa opinion of the United States Supreme Court because his penalty phase jury was "permitted to weigh invalid aggravating factors," Espinosa v. Florida, --- U.S. ----, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), and because the jury instruction itself was unconstitutionally vague. Id. Specifically, the jury was both instructed on, and the State extensively argued in highly graphic language, the possible existence of the factor of heinous, atrocious, or cruel without using the limiting instruction approved in Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). As a matter of law, this factor could not have existed in the present case, and the instruction given failed to meet the requirements of Sochor v. Florida, --- U.S. ----, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992).
I join the majority only because of the United States Supreme Court's recent denial of certiorari in this case. I also note with some perplexity the confusing opinions issued by the United States Supreme Court when it reviewed several Florida death cases on June 29, 1992, including the present one. To my mind, the language in Espinosa and Sochor are broad enough to...
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Turner v. Dugger
...grounds and thus deprived the trial court of an opportunity to rule on the issue. 2 Turner thus waived the claim. See Kennedy v. Singletary, 602 So.2d 1285 (Fla.1992). Even if he had objected, we find the error harmless beyond a reasonable doubt since there is no reasonable possibility that......
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