Messer v. State
| Decision Date | 12 October 1983 |
| Docket Number | Nos. 64346,64347,s. 64346 |
| Citation | 439 So.2d 875 |
| Parties | Charles Dwight MESSER, Jr., Appellant, v. STATE of Florida, Appellee. Charles Dwight MESSER, Jr., Petitioner, v. Louie L. WAINWRIGHT, etc., et al., Respondents. |
| Court | Florida Supreme Court |
David Ackerman, Pensacola, and Louis Dugas, Orange, Tex., for appellant/petitioner.
Jim Smith, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee/respondents.
These cases are before the Court on appeal of the denial of a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 (case no. 64,346) and upon a petition for writ of habeas corpus (case no. 64,347). Appellant-petitioner Charles Dwight Messer, Jr., is a state prisoner under sentence of death. In conjunction with the appeal and petition filed herein, Messer has moved for a stay of his scheduled execution.
Messer was convicted of the robbery and intentional murder of Henry Fowler. The crimes were committed in 1973. The trial court imposed a sentence of death. On appeal, this Court affirmed the convictions of murder and robbery but, finding error in the sentencing process, vacated the sentence of death and ordered a new sentencing proceeding with a new jury. Messer v. State, 330 So.2d 137 (Fla.1976). Messer was again sentenced to death, and the appellate jurisdiction of this Court was again invoked for review of the sentence. During the pendency of the appeal, the Court remanded for a hearing on a question of procedural due process at the sentencing proceeding. Principles arising from Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), were the basis of the Court's concern. Messer v. State, 384 So.2d 644, 645 (Fla.1980) (on rehearing). With receipt of the trial court's findings on the Gardner issue, the appellate jurisdiction of this Court resumed. Thereafter the Court affirmed Messer's sentence of death. Messer v. State, 403 So.2d 341 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2259, 72 L.Ed.2d 863 (1982).
Appellant contends that the trial court erred in denying his motion to vacate his judgment and sentence because he established that he was denied the right of effective assistance of legal counsel at his trial. In Knight v. State, 394 So.2d 997 (Fla.1981), we announced the test for judging such a contention. One making such a challenge must first identify a specific overt act or omission upon which the argument is based. Then the claimant must show that the act or omission was a substantial and serious deficiency measurably below the standard of performance expected of competent attorneys. Having established a specific act or omission amounting to such a serious and substantial deficiency, the claimant must then establish that, but for the serious and substantial deficiency, the outcome of the proceedings probably would have been different. If the claimant establishes these three factors, then the fourth step of the Knight test comes into play: the showing must withstand the state's rebuttal which is achieved by proving beyond a reasonable doubt that there was no prejudice in fact. Armstrong v. State, 429 So.2d 287, 290 (Fla.1983).
Appellant contends that his original trial counsel was defective in not presenting a closing argument to the jury. Appellant argues that counsel was ineffective in that the failure to argue to the jury was tantamount to an admission of guilt. Based on the testimony below and the original trial record, we conclude that counsel's waiver of argument was a reasonable tactical decision under the circumstances. Because of the substantial evidence of appellant's involvement in the robbery and murder, trial counsel chose to submit the question of guilt or innocence, and the question of degree of guilt, to the jury without argument. By this tactic counsel was able to deprive the prosecuting attorney of the opportunity to present a rebuttal argument. Defense counsel could have reasonably decided (and did so, according to his testimony below) that it would be better for his client's case to submit the issue to the jury without argument than to allow the prosecutor the final opportunity to comment to the jury on what the evidence showed. Thus defense counsel was not admitting that his client was "guilty as charged," as is argued by appellant.
Appellant points out that his original trial defense counsel did not take any discovery depositions prior to trial. This assertion does not even satisfy the first step of the four-step Knight test. In order to characterize the lack of depositions as a specific omission, the appellant would have to identify a specific evidentiary matter to which the failure to depose witnesses would relate. If a specific matter upon which there was a lack of pre-trial discovery were identified, then it would be appropriate to proceed to the second step of the Knight test. But the simple assertion that there were no depositions taken does not qualify as an identification of a specific omission. Therefore appellant's reliance on the lack of discovery depositions affords him no relief.
Appellant makes numerous references to defense counsel's performance at the sentencing phase of the trial in 1974. As was noted above, on appeal to this Court appellant was awarded a new trial on the question of sentencing. The basis of the Court's decision was that the trial court had erred in refusing to allow defense counsel to present certain matters to the jury. Messer v. State, 330 So.2d 137, 141-43 (Fla.1976). Appellant's present sentence of death was imposed after a second sentencing trial so any questions concerning defense counsel's effectiveness at the first sentencing proceeding have become moot.
Several other suggestions in appellant's brief concerning defense counsel's performance, to the extent that they identify specific omissions or overt acts, have nevertheless failed to establish serious and substantial deficiencies measurably below the standard expected of competent counsel.
Appellant argues that statements in the trial court's order denying his motion, referring to the trial judge's experience and qualifications in criminal law and procedure, constituted testimony by the trial judge on issues of fact. Appellant says this violated judicial ethics and denied him the right of cross-examination, and therefore was reversible error. We find this argument to be without merit.
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