Maxwell v. Wainwright, s. 66117

CourtUnited States State Supreme Court of Florida
Citation11 Fla. L. Weekly 219,490 So.2d 927
Docket Number66129,Nos. 66117,s. 66117
Parties11 Fla. L. Weekly 219 Chester Levon MAXWELL, Petitioner, v. Louie L. WAINWRIGHT, Respondent. Chester Levon MAXWELL, Appellant, v. STATE of Florida, Appellee.
Decision Date15 May 1986

Steven H. Malone, St. Petersburg, for petitioner/appellant.

Jim Smith, Atty. Gen., and Richard G. Bartmon and Robert L. Teitler, Asst. Attys. Gen., West Palm Beach, for respondent/appellee.

BOYD, Chief Justice.

Chester Levon Maxwell, a state prisoner under sentence of death, * filed with this Court a petition for habeas corpus challenging the legality of his conviction and sentence. He also filed a motion to set aside judgment and sentence under Florida Rule of Criminal Procedure 3.850. The trial court denied the rule 3.850 motion, and Maxwell appealed the ruling to this Court. In connection with his habeas corpus petition and his appeal of the denial of post-conviction relief, Maxwell moved for a stay of the then-scheduled execution of the sentence of death pending further consideration of the petition and the appeal. Because a majority of the Court found that the matters at issue could not be satisfactorily resolved on an expedited basis, we entered a stay of execution on November 6, 1984. Having now given careful consideration to all the issues raised in both of the proceedings before us, we affirm the denial of the motion to set aside judgment and sentence and deny the petition for habeas corpus.

APPEAL OF DENIAL OF RULE 3.850 MOTION

Appellant's motion to set aside judgment and sentence, filed in the circuit court in which he was tried and sentenced, presented eight challenges. The circuit court summarily dismissed seven of the eight contentions on the ground that they were improper matters for collateral attack, being matters that must be presented by objection at trial and argument on appeal. On the eighth issue put forth by the motion--ineffective assistance of counsel at trial--the trial court held an evidentiary hearing but then denied relief. Appellant argues that the court erred in summarily dismissing seven of his eight contentions and denied him a full, fair and meaningful evidentiary hearing on the one issue not summarily dismissed.

By his motion below and now by appeal Maxwell argues that he was denied a fair trial before an impartial jury by the excusal of a juror who, appellant argues, had merely expressed some hesitation about the use of capital punishment. Appellant argues that the juror was not clearly shown to be unqualified to impartially serve in a capital trial. The lack of an objection on this ground at trial, however, was a waiver of the argument so it is not cognizable by motion for post-conviction relief. Armstrong v. State, 429 So.2d 287 (Fla.), cert. denied, 464 U.S. 865, 104 S.Ct. 203, 78 L.Ed.2d 177 (1983). Therefore the trial court was correct to summarily dismiss the rule 3.850 claim raised on this ground. Moreover, under established Florida law, the juror was properly excused because, based on the record of the original trial, it was clear that the possibility of a death sentence rendered the juror unable to impartially participate in the determination of guilt or innocence. In affirming Maxwell's conviction on appeal, we held that this same contention with regard to another prospective juror had been waived by the lack of a timely objection at trial, but added, "Moreover, if we were to reach the merits of this point we would find no error because the juror in question was properly excused." Maxwell v. State, 443 So.2d 967, 970 (Fla.1983). Both prospective jurors were properly excused for cause. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (Fla.1985).

Appellant argues that his right to a fair trial was violated when the venire of prospective jurors were able to see the appellant in the custody of officers. This was a question of procedural error cognizable on appeal if it had been raised by objection and preserved for appellate review. But it is not cognizable now. Moreover, the mere viewing of a defendant in the custody of officers does not raise a question of denial of indicia of innocence as in cases in which the accused is brought into

court in prison garb or shackles. The close escort was a routine security measure and it should not lightly be presumed that prospective jurors would perceive it as anything else. There was no violation of the right to a fair trial in this regard. United States v. Diecidue, 603 F.2d 535 (5th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980); Wright v. Texas, 533 F.2d 185 (5th Cir.1976)

Appellant argues that he was denied a fair and reliable sentencing proceeding because the trial court improperly limited the jury's consideration to only statutory mitigating circumstances. Reliance on this issue, however, was waived at trial by the lack of an objection. Moreover, the standard instructions based on the sentencing statute did not have the effect of limiting the jury's consideration as asserted by appellant. Demps v. State, 395 So.2d 501 (Fla.), cert. denied, 454 U.S. 933, 102 S.Ct. 430, 70 L.Ed.2d 239 (1981). Non-statutory mitigating evidence was presented to the jury. The jury was not misled on the permissibility of considering all mitigating evidence it found persuasive. See Straight v. Wainwright, 422 So.2d 827, 830 (Fla.1982).

Appellant argues that the trial court erred in instructing the jury that its sentencing recommendation, either for death or life imprisonment, had to be by majority vote. There was no objection at trial so the error, if error there was, was waived and provides no basis for relief by way of a collateral proceeding. Ford v. Wainwright, 451 So.2d 471 (Fla.1984); Armstrong v. State, 429 So.2d 287 (Fla.), cert. denied, 464 U.S. 865, 104 S.Ct. 203, 78 L.Ed.2d 177 (1983). Moreover, we believe that affording relief on the ground of this asserted error would depend on a showing of prejudice. Jackson v. State, 438 So.2d 4 (Fla.1983); Harich v. State, 437 So.2d 1082 (Fla.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984). Unless it can be shown that the jury erroneously believed it had to have a vote of seven to make a recommendation and that this mistake affected their deliberations in that at some point a tie vote was reached, it cannot be established that any prejudice resulted from the erroneous instruction. The record shows that at trial the jury collectively indicated to the court that its sentencing recommendation was in fact reached by a majority vote.

Appellant argues that his right to a fair and reliable sentencing hearing was violated because the trial court instructed the jury on all the statutory aggravating circumstances without regard to whether they were supported by evidence. If there was error by the trial court in this regard, it was of the type that is reviewable only when challenged by objection at trial and argument on appeal. Such a contention is not a ground for relief under rule 3.850. Moreover, the instructions given at the trial were not erroneous and appellant had full opportunity to argue against the applicability of any or all of the aggravating circumstances. See Straight v. Wainwright, 422 So.2d 827 (Fla.1982).

Appellant argues that the trial court's instructions to the jury failed to adequately define the aggravating circumstance that refers to the capital felony being "especially heinous, atrocious, or cruel." This is another matter that could only be reviewed by means of objection at trial and presentation on appeal. Moreover, the argument is without merit. The instruction followed the statutory words as refined and construed by this Court. See Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); State v. Dixon, 283 So.2d 1 (Fla.1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974).

Appellant argues that the sentencing proceeding culminating in his sentence of death was fundamentally unfair because of the failure to disclose the contents of a presentence investigation report to him. As we said when this issue was presented on appeal, the record shows that a copy of the report was supplied to defense counsel before sentencing. Maxwell v. State, 443 So.2d at 971. Thus the defendant through counsel had an opportunity to examine,

challenge, rebut, deny, and use any relevant information contained in the report. See Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); Songer v. State, 419 So.2d 1044 (1982). Appellant seems to argue for a formal requirement that the report be physically placed in the defendant's hands. This position is completely without merit

We come now to the only issue raised by the motion not summarily dismissed by the lower court and the only issue properly cognizable on the merits in this proceeding. Appellant argues that he received ineffective assistance of counsel at his trial in violation of his sixth amendment rights and that the court below in ruling on his motion to vacate the judgment denied him an adequate evidentiary hearing. We find that the hearing on the motion comported with due process principles.

A claim of ineffective assistance of counsel, to be considered meritorious, must include two general components. First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Downs v. State, 453 So.2d 1102 (Fla.1984). A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it...

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