Kokal v. Dugger

• Decision Date: 16 July 1998
• Docket Number: 90622,Nos. 73102,s. 73102
• Citation: 718 So.2d 138
• Parties: 23 Fla. L. Weekly S397 Gregory Alan KOKAL, Petitioner, v. Richard L. DUGGER, etc., Respondent. Gregory Alan KOKAL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 138

718 So.2d 138

23 Fla. L. Weekly S397

Gregory Alan KOKAL, Petitioner, v. Richard L. DUGGER, etc., Respondent.

Gregory Alan KOKAL, Appellant, v. STATE of Florida, Appellee.

Nos. 73102, 90622.

Supreme Court of Florida.

July 16, 1998.

Jefferson W. Morrow, Jacksonville, for Petitioner/Appellant.

Robert A. Butterworth, Attorney General, and Curtis M. French, Assistant Attorney General, Tallahassee, for Respondent/Appellee.

PER CURIAM.

Gregory Alan Kokal appeals an order of the trial court denying relief under Florida Rule of Criminal Procedure 3.850 and petitions the Court for a writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(1, 9), Fla. Const. We affirm the denial of rule 3.850 relief and deny the writ.

The facts are set out fully in our opinion on direct appeal. See Kokal v. State, 492 So.2d 1317 (Fla.1986). Kokal and a friend, William O'Kelly, picked up a hitchhiker in September 1983 and drove him to a deserted area, where they beat, shot, and robbed him. Kokal later told an acquaintance that he planned to rob the hitchhiker and he deliberately shot him in the head because "dead men can't tell lies." Kokal was arrested and charged with first-degree murder. He testified at trial, blaming the shooting on O'Kelly, and was convicted as charged. During the penalty phase, his mother testified that he had been mistreated as a child. The jury unanimously recommended death and the court imposed a sentence of death based on four aggravating circumstances ¹ and no mitigating circumstances. We affirmed.

In 1988, Kokal filed both a petition for a writ of habeas corpus in this Court and a rule 3.850 motion in the trial court. The trial court conducted an evidentiary hearing on the rule 3.850 motion in February 1997 to consider Kokal's claim that trial counsel had been ineffective. Kokal called as a witness Dr. Crown, a neuropsychologist who examined him in prison in 1996, and who testified that in his opinion Kokal sustained brain damage in a 1983 car wreck, and that on the night of the killing the combination of brain damage and alcohol consumption rendered him extremely disturbed and also impaired his capacity to appreciate the criminality of his conduct. This testimony was controverted by the State on cross-examination. ² Kokal also called Dr. Virzi, a psychiatrist, who testified that he had examined Kokal pre-trial in 1984 to evaluate his sanity and competence. Dr. Virzi now believes that Kokal's drug and alcohol abuse caused him to be emotionally disturbed and to have diminished capacity at the time of the crime. This testimony also was controverted by the State. ³ Finally, trial counsel Westling testified at length concerning the following: his own prior experience in trying criminal cases; ⁴ Kokal's

                admission of the crime to him; 5  his--Westling's--preparation of the case 6 and strategy at trial; 7  and Kokal's demeanor as a defendant. 8  The trial court denied the rule 3.850 motion, and Kokal now appeals that denial. 9  He also seeks relief under his pending habeas petition. 10
                

RULE 3.850 MOTION

Kokal seeks reversal of the trial court's order denying rule 3.850 relief, arguing that trial counsel's performance was defective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). ¹¹ We disagree. Our review of the record shows

                that the trial court did not err in denying Kokal's claim of ineffectiveness in the guilt phase 12 or in the penalty phase. 13  The record 
                contains extensive evidence to support its ruling and we find no legal error.  Kokal's remaining rule 3.850 claims are without merit 14 or procedurally barred. 15
                

HABEAS CORPUS

Kokal argues that the trial court failed to excuse for cause three jurors who were death-biased, thus requiring him to expend peremptory challenges to strike the jurors. He claims appellate counsel was ineffective for failing to raise this issue. We disagree. The record shows that none of the three jurors actually served on the jury, and Kokal points to no objectionable juror who did serve. See Trotter v. State, 576 So.2d 691, 693 (Fla.1990) ("Where a defendant seeks reversal based on a claim that he was wrongfully forced to exhaust his peremptory challenges, he initially must identify a specific juror whom he otherwise would have struck peremptorily. This juror must be an individual who actually sat on the jury and whom the defendant either challenged for cause of attempted to challenge peremptorily or otherwise objected to after his peremptory challenges had been exhausted."). Appellate counsel cannot be faulted for failing to raise a nonmeritorious claim. Chandler v. State, 634 So.2d 1066 (Fla.1994).

Kokal next claims that the trial court improperly excused a life-biased juror for cause and that appellate counsel was ineffective for failing to raise this issue. Again, we disagree. Juror excusals for cause are normally within the trial court's discretion, ^{16 16} and a court's ruling will be sustained unless no reasonable person would agree with the court. ¹⁷ The present record is replete with statements by venireperson Davis indicating that he was averse to imposing death: He said he did not think he could vote to recommend a death sentence; he would require the State to remove all doubt; he would require the State to prove its case beyond all doubt; he could not follow an instruction on reasonable doubt. On this record, we cannot say that no reasonable person would agree with the court's ruling. Appellate counsel cannot be faulted. Chandler.

Kokal argues that the trial court excused a black juror for cause and yet refused to excuse another juror who responded in virtually the same manner during voir dire. (Both jurors were challenged for cause by the State.) He claims that appellate counsel was ineffective for failing to raise this issue. We disagree. The record shows that Kokal did not preserve this issue--he did not object on a racial basis to the excusal of either juror. See Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982) ("[I]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection ... below."). Furthermore, while the record shows that venireperson Ashley is black, it does not show the race of venireperson Babcock. Appellate counsel cannot be faulted for failing to raise this claim. Chandler.

Kokal next claims that the prosecutor improperly argued lack of remorse in his closing argument in both the guilt and penalty phases, and he claims that appellate counsel was ineffective for failing to raise this issue. We disagree. The record shows that the penalty phase claim was not preserved--Kokal did not object. Furthermore, the statement in the guilt phase was a one-word reference to remorse in a lengthy and otherwise proper closing argument. Kokal is not entitled to relief unless he can show first that "the alleged omission[ ][is] of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, [that] the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result." Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986). ¹⁸ We find no basis for reversal.

Kokal claims that jurors were misled concerning the importance of their role in recommending death, and that appellate counsel was ineffective for failing to raise this issue. We disagree. The underlying issue has already been decided adversely to the defendant. See, e.g., Johnson v. State, 660 So.2d 637, 647 (Fla.1995) ("[T]here is no merit to Johnson's argument that Florida's jury instructions denigrate the role of the jury...."). Appellate counsel cannot be faulted for failing to raise a nonmeritorious claim. Chandler. Furthermore, this claim was raised in the current rule 3.850 motion. See Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987) ("By raising the issue in the petition for writ of habeas corpus, in addition to the rule 3.850 petition, collateral counsel has accomplished nothing except to unnecessarily burden this Court with redundant material.").

Kokal claims that no limiting construction was placed on the HAC aggravator. The record, however, shows that Kokal did not preserve this issue--he failed to object at trial. See Hardwick v. Dugger, 648 So.2d 100, 103 (Fla.1994) ("Claim 5, which challenges the sufficiency of the jury instructions on the CCP and HAC aggravating factors, is procedurally barred because trial counsel raised no objections to the wording of the instructions."). Furthermore, this issue was raised in the current rule 3.850 motion. See Blanco. Kokal's remaining habeas claims are redundant ¹⁹ or were not preserved. ²⁰

Based on the foregoing, we affirm the denial of Kokal's rule 3.850 motion, and we deny his petition for writ of habeas corpus.

It is so ordered.

HARDING, C.J., and OVERTON, SHAW, KOGAN, WELLS, ANSTEAD and PARIENTE, JJ., concur.

1 The court found the following aggravating circumstances: (1) the murder was committed during the course of a robbery; (2) the murder was committed to avoid arrest; (3) the murder was especially heinous, atrocious, or cruel (HAC); (4) the murder was committed in a cold, calculated, and premeditated manner (CCP).

2 Dr. Crown admitted on cross-examination that he did not prepare a written report on Kokal--that CCR did not ask him to--and thus no report was given to the State prior to the evidentiary hearing. He testified that Kokal's brain damage is not severe enough standing alone to have impaired him at the time of the crime and that the only evidence of alcohol consumption came from Kokal himself. Dr. Crown acknowledged that Kokal had successfully completed both his G.E.D. and a number of college courses. Dr. Crown did not know that Kokal had in fact feigned illness in order to obtain favored treatment in jail. Dr. Crown attributed no...