McCrae v. Wainwright, 63796

• Decision Date: 15 September 1983
• Docket Number: No. 63796,63796
• Citation: 439 So.2d 868
• Parties: James Curtis McCRAE, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
• Court: Florida Supreme Court

Page 868

439 So.2d 868

James Curtis McCRAE, Petitioner, v. Louie L. WAINWRIGHT, Respondent.

No. 63796.

Supreme Court of Florida.

Sept. 15, 1983.

Rehearing Denied Nov. 17, 1983.

Robert H. Dillinger of Akerson, Swisher, Dillinger & Brett, St. Petersburg, for petitioner.

Jim Smith, Atty. Gen., George R. Georgieff, Asst. Deputy Atty. Gen., Tallahassee, and Peggy Quince, Asst. Atty. Gen., Tampa, for respondent.

PER CURIAM.

This cause is before the Court on petition for a writ of habeas corpus. The petitioner is a state prisoner under sentence of death. On June 13, 1983, in case no. 63,797, we stayed execution of the sentence for reasons unrelated to this habeas corpus proceeding.

Petitioner's conviction of first-degree murder and sentence of death were previously the subject of an appeal to this Court and were affirmed. McCrae v. State, 395 So.2d 1145 (Fla.1981). The United States Supreme Court denied a petition for further review by writ of certiorari. McCray v. Florida, 454 U.S. 1041, 102 S.Ct. 583, 90 L.Ed.2d 486 (1981). Subsequently, petitioner sought a writ of habeas corpus from this Court and we denied relief. McCrae v. Wainwright, 422 So.2d 824 (Fla.1982).

In the present petition the prisoner argues: (1) that he was denied the effective assistance of counsel on appeal by the failure of his appeal counsel to raise as a challenge to the validity of the conviction and sentence the issue of a conflict of interest, within the public defender's office, between petitioner and a witness who testified for the state at the trial; (2) that he was denied due process of law at trial and effective assistance of counsel on appeal by the giving at trial, and the failure to challenge on appeal, of "incorrect and misleading" jury instructions; and (3) that he was denied due process of law at trial and effective assistance of counsel on appeal by the failure of the trial court to instruct the jury, and the failure of appellate counsel to raise the failure to instruct, that an accused is presumed innocent of the underlying felony in a felony murder case. Finding petitioner's arguments to be without merit, we deny the petition for a writ of habeas corpus.

Appellant's first argument as set out above is that the lawyer who argued his appeal unreasonably failed to raise a challenge on the ground of dual representation of both appellant and a principal state witness by the same public defender's office. The purpose of the ancient and high prerogative writ of habeas corpus is to inquire into the legality of a prisoner's present detention. E.g., Frizzell v. State, 238 So.2d 67 (Fla.1970); Sneed v. Mayo, 69 So.2d 653 (Fla.1954). Habeas corpus should not be used as a vehicle for presenting issues which should have been raised at trial and on appeal. Hargrave v. Wainwright, 388 So.2d 1021 (Fla.1980); State ex rel. Copeland v. Mayo, 87 So.2d 501 (Fla.1956). Allegations of ineffective appellate counsel therefore should not be allowed to serve as a means of circumventing the rule that habeas corpus proceedings do not provide a second or substitute appeal. We need not and will not treat the merits of the dual representation claim.

The asserted violation of principles against conflict of interest in legal representation does not appear to be so important to the fairness of the trial that if appellate counsel had raised it, the argument would clearly have compelled reversal by the appellate court. Indeed, it is not even clear that the appellate court would have been bound to consider the issue since it was not raised by some kind of motion or objection at trial. See Castor v. State, 365 So.2d 701 (Fla.1978). Because of limitations of time, space, and human energy, a lawyer briefing an appeal must choose from all the conceivable arguments those arguments most likely to bring about a favorable outcome. The decision not to argue the issue of dual representation could have been a tactical choice based on the need to concentrate time and effort on those arguments which counsel regarded as most likely to achieve success. We therefore find that petitioner has not identified a "specific omission or overt act" constituting "a substantial and serious deficiency measurably below" the standard of performance expected of competent counsel. Knight v. State, 394 So.2d 997, 1001 (Fla.1981).

Petitioner's second argument as set out above is that he was denied (a) due process of law at trial, and (b) effective assistance of counsel on appeal, by reason of, respectively, improper jury instructions and the failure to challenge them on appeal. The question of denial of due process by improper jury instructions at trial is an issue that could have been raised at trial and on appeal and therefore should not be considered on habeas corpus unless the error was so substantial as to have rendered the trial fundamentally unfair. See Hargrave v. Wainwright; State ex rel. Copeland v. Mayo. Of course, since there was no objection to the instruction given at trial and no request for a different instruction, the issue could not have been raised on appeal in the absence of fundamental unfairness. A prisoner who seeks relief in a collateral proceeding based on a jury instruction not challenged by objection at trial has the burden of proving that the instruction given affected the trial in such a way as to render the trial fundamentally unfair. United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558 71 L.Ed.2d 783 (1982). As will be seen from the discussion that follows, petitioner has not carried this burden.

Since there was no objection to the instruction at trial, appellate counsel could only have obtained review of the issue on appeal by convincing the appellate court that the instruction caused fundamental unfairness. If there was no chance of convincingly arguing fundamental unfairness, then appellate counsel's not raising the issue should not be considered a serious and substantial deficiency.

Petitioner argues that the instruction on felony murder rendered the trial unfair because it might have seriously confused the jury on an important matter the jury was called upon to decide. Specifically, he argues that the failure to fully define the underlying felony of rape, together with the inclusion of references to the...