Koon v. Dugger, s. 74245

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM; BARKETT, C.J., concurs specially with an opinion, in which KOGAN; BARKETT; KOGAN
• Citation: 619 So.2d 246
• Parties: 18 Fla. L. Week. S201 Raymond Leon KOON, Petitioner, v. Richard L. DUGGER, etc., Respondent. Raymond Leon KOON, Appellant, v. STATE of Florida, Appellee.
• Docket Number: Nos. 74245,75380,s. 74245
• Decision Date: 25 March 1993

Page 246

619 So.2d 246 18 Fla. L. Week. S201 Raymond Leon KOON, Petitioner,
v.
Richard L. DUGGER, etc., Respondent.
Raymond Leon KOON, Appellant,
v.
STATE of Florida, Appellee. Nos. 74245, 75380. Supreme Court of Florida. March 25, 1993.
Rehearing Denied June 9, 1993.

Page 247

Larry Helm Spalding, Capital Collateral Representative, Martin J. McClain, Chief Asst. CCR and Ken D. Driggs, Asst. CCR, Office of the Capital Collateral Representative, Tallahassee, for petitioner/appellant.

Robert A. Butterworth, Atty. Gen. and Candance M. Sunderland, Asst. Atty. Gen., Tampa, for respondent/appellee.

PER CURIAM.

Raymond Leon Koon, a prisoner under sentence of death, appeals the denial of his motion for postconviction relief. He also petitions the Court for a writ of habeas corpus. We have jurisdiction pursuant to article V, sections 3(b)(1) and (9), Florida Constitution.

Koon was convicted and sentenced to death for the 1979 murder of Joseph Dino. Dino was murdered after he implicated Koon in a counterfeiting conspiracy and agreed to testify against him. On direct appeal, this Court reversed Koon's conviction because of trial error and remanded for a new trial. Koon v. State, 463 So.2d 201 (Fla.), cert. denied, 472 U.S. 1031, 105 S.Ct. 3511, 87 L.Ed.2d 641 (1985). On retrial, Koon was again convicted. The jury recommended death by a seven-to-five vote, and the trial court sentenced Koon to death. This Court affirmed the conviction and sentence. ¹ Koon v. State, 513 So.2d 1253 (Fla.1987), cert. denied, 485 U.S. 943, 108 S.Ct. 1124, 99 L.Ed.2d 284 (1988). Koon filed this habeas petition and postconviction motion after the governor signed a warrant for his death. The trial court ruled that many of the claims in his postconviction motion were procedurally barred. However, the court held an evidentiary hearing on (1) whether Koon was prejudiced by not having an adequate psychiatric examination to disclose his alleged incompetency to stand trial; (2) whether Koon was, in fact, incompetent to stand trial; and (3) whether his trial counsel rendered ineffective assistance. Following the evidentiary hearing, the court denied the balance of Koon's claims.

Koon raises numerous claims in the appeal of the denial of his 3.850 motion. ² Most of the claims are procedurally barred because they either were raised or should have been raised on direct appeal. Buenoano v. Dugger, 559 So.2d 1116, 1118 (Fla.1990); Harich v. State, 484 So.2d 1239, 1240 (Fla.1986). The procedurally barred claims include: (1) the trial judge relied on a nonrecord report in sentencing (raised on direct appeal); (2) the court improperly applied the aggravating circumstance of hindering the role of law enforcement (raised on direct appeal); (3) the court refused to find mitigating circumstances established in the record (raised on direct appeal); (4) the court failed to independently weigh aggravating and mitigating circumstances (raised on direct appeal); (5) the participation of federal agents in the state's case after they successfully prosecuted him on federal charges violated double jeopardy (raised on the first direct appeal); (6) Koon was denied the right to be present at a critical stage of the proceeding; (7) security precautions taken at trial prejudiced Koon; (8) the trial court erred in refusing to grant a change of venue; (9) the failure to instruct the jury on the nonstatutory mitigating circumstance of disparate treatment violated Koon's constitutional rights; (10) the jury was misled by instructions and

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arguments that diluted its responsibility for sentencing in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (11) the state introduced nonstatutory aggravating factors; (12) the prosecutor made improper comments regarding mercy and sympathy toward Koon; (13) the jury instructions shifted the burden to Koon to prove that life was the appropriate penalty; (14) the jury was misled by the instruction that a recommendation of life must be made by a majority vote; (15) Koon was denied the right to counsel because his attorney had a conflict of interest; (16) this Court's interpretation of the aggravating factor of cold, calculated, and premeditated is unconstitutionally overbroad (application of this factor to this case was raised on direct appeal).

Koon's claim that the jury was improperly instructed on the aggravating factor of heinous, atrocious, and cruel is also procedurally barred. Koon correctly points out that his jury was given the same instruction on this aggravating factor that the United States Supreme Court recently held to be unconstitutionally vague. Espinosa v. Florida, --- U.S. ----, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). However, there was never any objection to the wording of the instruction. Furthermore, while Koon questioned the applicability of this aggravating factor on appeal, he did not argue that the language of the instruction was improper or vague. See Kennedy v. Singletary, 602 So.2d 1285 (Fla.), cert. denied, --- U.S. ----, 113 S.Ct. 2, 120 L.Ed.2d 931 (1992).

Upon our review of the record, we summarily reject the claims of ineffective assistance of trial counsel that Koon raises with respect to these claims. Even assuming the performance to be deficient, we find no evidence that the outcome of the proceedings was prejudiced.

Koon claims that his trial counsel failed to investigate and present mental health defenses and mitigation in all phases of the trial. With respect to the guilt phase, Koon asserts that counsel should have presented a voluntary intoxication defense in order to negate the specific intent to commit premeditated murder. To warrant relief on this claim, Koon must demonstrate deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Assistant Public Defender Thomas O'Steen was appointed to represent Koon in May 1982, prior to the first trial. Shortly before trial, Koon retained private counsel and O'Steen withdrew. Koon's new counsel obtained an order appointing three psychiatrists to evaluate Koon's competency. One of the psychiatrists, Dr. Wald, interviewed Koon and requested an electroencephalogram (EEG), a CT scan of the brain, and psychological testing on Koon. Dr. Ertag performed an EEG and CT scan. ³ He reported that the EEG was within normal limits and that the CT scan indicated some mild frontal atrophy, consistent with chronic alcohol ingestion. Ertag diagnosed Koon as having mild organic deficits, including decreased recent memory, a slight decrease of insight in judgment, and limited abstract thought (the latter was possibly due to limited education). He found no significant permanent impairment of mental function, but noted that the organic brain syndrome could have been more severe around the time of the crime if Koon was continuously under the influence of alcohol and had poor nutrition.

Dr. Wald filed his report after receiving the results of Dr. Ertag's testing. He diagnosed Koon as suffering from alcoholism and possible mild organic brain syndrome. He noted that the minimal degree of atrophy shown by the CT scan would probably not be significant in determining Koon's behavior. The two other appointed psychiatrists diagnosed Koon as suffering from...