Kight v. Dugger

Decision Date29 November 1990
Docket NumberNos. 75086,74974,s. 75086
Citation574 So.2d 1066
Parties15 Fla. L. Weekly S634 Charles Michael KIGHT, Petitioner, v. Richard L. DUGGER, Respondent. Charles Michael KIGHT, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Larry Helm Spalding, Capital Collateral Representative, and Billy H. Nolas, Chief Asst. CCR and Josephine L. Holland and Thomas H. Dunn, Asst. Capital Collateral Representatives, Office of Capital Collateral Representative, Tallahassee, for petitioner, appellant.

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

EHRLICH, Justice.

Charles Kight, a prisoner under sentence of death, appeals the trial court's denial of his motion to vacate conviction and sentence made pursuant to Florida Rule of Criminal Procedure 3.850. He also petitions this Court for a writ of habeas corpus. We have jurisdiction pursuant to article V, sections 3(b)(1) and (9), Florida Constitution.

Kight was convicted of the first-degree murder of a Jacksonville cab driver and in accordance with the jury's recommendation, was sentenced to death. This Court affirmed the conviction and sentence on direct appeal. Kight v. State, 512 So.2d 922 (1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1100, 99 L.Ed.2d 262 (1988). A death warrant was signed on September 27, 1989, with execution scheduled for December 6, 1989.

Kight filed a petition for writ of habeas corpus with this Court and a rule 3.850 motion to vacate with the trial court. The trial court summarily denied twenty-two of the claims raised in Kight's rule 3.850 motion. After an evidentiary hearing on Kight's claim that the state deliberately used false and misleading testimony and withheld material exculpatory evidence, the trial court denied all relief. Kight appeals that denial. Kight also appeals the trial

court's order compelling the Office of the Capital Collateral Representative (CCR) to disclose, pursuant to chapter 119, Florida Statute (1987), files in its possession which were prepared by Kight's trial counsel. Oral argument was heard on December 5, 1989. This Court granted a stay of execution in order to adequately consider the appeal and the petition for writ of habeas corpus.

CHAPTER 119 DISCLOSURE

On November 13, 1989, the State Attorney for the Fourth Judicial Circuit made a written request to CCR, pursuant to section 119.06, for access to public records relating to Mr. Kight's postconviction litigation. CCR refused to disclose the records. The state attorney then filed a motion to compel disclosure. CCR took the position that the files requested were not subject to chapter 119 disclosure because they are not the files of a government agency, but rather are the files of a private individual, Mr. Kight. CCR also maintained that the records requested were specifically exempt under section 119.07(3)(o ) because they were prepared in connection with "active litigation."

The trial court granted the motion but limited the scope of the files to be disclosed to those prepared by Kight's trial counsel relating to the capital trial. CCR objected to the order and requested that the issuance of the order be stayed pending appeal. The request was denied. CCR states that the state attorney was provided access to the files prepared by Kight's trial counsel. However, the state maintains that since the files were not delivered to the state attorneys handling the case in Jacksonville the order requiring disclosure had no effect on the rule 3.850 hearing. We agree with CCR that although the files have been disclosed in this case, thereby rendering the issue moot, this Court should address the issue because it is "capable of repetition, yet evading review." Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 601, 98 L.Ed.2d 686 (1988); see In re T.W., 551 So.2d 1186 (Fla.1989).

Recently, in State v. Kokal, 562 So.2d 324 (Fla.1990), this Court addressed whether files of the state attorney pertaining to the prosecution of a defendant seeking postconviction relief are subject to disclosure under chapter 119. In Kokal, we rejected the state attorney's position that these files were exempt from public disclosure under sections 119.07(3)(d) (active criminal investigative information) and 119.07(3)(o ) (active litigation), reasoning that criminal investigative information and litigation do not remain active after a conviction and sentence becomes final on direct appeal.

In Kokal, there was no question that the records sought were public records under chapter 119; the only issue presented was whether the records at issue were otherwise exempt from disclosure. In contrast, the sole issue presented in the instant case is whether the files prepared by defense trial counsel which are in the possession of CCR are public records subject to disclosure under Florida's public records act.

We agree with CCR that chapter 119 was enacted to insure free access to "governmental records." See Lorei v. Smith, 464 So.2d 1330 (Fla. 2d DCA), review denied, 475 So.2d 695 (Fla.1985). As we explained in City of North Miami v. Miami Herald Publishing Co., 468 So.2d 218, 219 (Fla.1985), "[t]he legislature has the constitutional power to regulate disclosure of public records of the state and its political subdivisions and has done so through chapter 119." (Emphasis added.) We also agree that although the records of defense counsel were "received ... in connection with the transaction of official business" 1 by CCR, the records ordered disclosed are not governmental records for purposes of Florida's public records act; they are the private records of Mr. Kight. See id. (communications between attorney and government-entity client belong to the client, not the lawyer).

The records at issue were initially prepared and maintained by defense counsel for the sole purpose of aiding in the

defense of the accused and came into the possession of CCR because of its representation of Mr. Kight in these collateral proceedings. While representing a client, CCR, like the public defender, performs essentially a private function by "advancing 'the undivided interests of [the] client.' " Polk County v. Dodson, 454 U.S. 312, 318-19, 102 S.Ct. 445, 449-50, 70 L.Ed.2d 509 (1981) (public defender does not act under color of state law, for purposes of Civil Rights Act, when performing a lawyer's traditional functions as counsel to defendant in a criminal proceeding); West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 2256, 101 L.Ed.2d 40 (1988) (public defender's professional and ethical obligations as an attorney require him to act in a role independent of and in opposition to the state). We, therefore, hold that files in the possession of CCR in furtherance of its representation of an indigent client are not subject to public disclosure under chapter 119. To hold otherwise would subject the records of a defendant who is unable to retain private collateral representation to public disclosure while those of a defendant represented by private counsel would be immune from such disclosure.

HABEAS CORPUS

Next we address Kight's petition for writ of habeas corpus. As his first claim, Kight argues that appellate counsel was ineffective for failing to challenge the trial court's refusal to instruct the jury that it could consider age as a statutory mitigating factor. Kight maintains that without this instruction the jury had no vehicle to give effect to the mitigating evidence of Kight's low functional age of 8-10. The trial court denied trial counsel's request that the jury be instructed on the statutory mitigating factor of the age of the defendant at the time of the offense, believing that the plain meaning of section 921.141(6)(g) is chronological age and that defense counsel would have full opportunity to argue Kight's low functional age in connection with statutory mitigating factors: 1) that Kight's capacity to appreciate the criminality of his conduct was impaired and 2) that Kight was under the substantial domination of another.

We reject this claim because Kight has failed to show that there is a reasonable probability that if counsel had raised this claim the outcome of Kight's appeal would have been different, as required under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). While the jury was not given an instruction under section 921.141(6)(g), it was given instructions setting forth the following statutory mitigating factors: 1) the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance, section 921.141(6)(b); 2) the defendant acted under extreme duress or the substantial domination of another, section 921.141(6)(e); and 3) the defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, section 921.141(6)(f). The jury was also instructed to consider any other aspect of the defendant's character or record or any other evidence of the offense. During penalty phase closing argument, defense counsel urged the jury to consider Kight's low functional age in mitigation, arguing that the death penalty was not appropriate for one "who has acted as a child of eight to ten years old." Later in closing argument, counsel stated "Charles Kight's social age unrefuted is eight to ten years of age. That, ladies and gentlemen, is a mitigating circumstance." Counsel also reemphasized this factor in connection with his argument that Kight was under the substantial domination of his codefendant. On this record, there is no reasonable probability that the jury's recommendation or the penalty imposed would have been different if the requested instruction had been given. Therefore, even if the omission of this instruction had been found error on direct appeal, see Robinson v. State, 487 So.2d 1040 (Fla.1986), the error would have been found harmless.

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