Parker v. Dugger, 72466

• Decision Date: 01 December 1988
• Docket Number: No. 72466,72466
• Citation: 13 Fla. L. Weekly 695,537 So.2d 969
• Parties: 13 Fla. L. Weekly 695 Norman PARKER, Petitioner, v. Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent.
• Court: Florida Supreme Court

Page 969

537 So.2d 969

13 Fla. L. Weekly 695

Norman PARKER, Petitioner, v. Richard L. DUGGER, Secretary, Department of Corrections, State of Florida, Respondent.

No. 72466.

Supreme Court of Florida.

Dec. 1, 1988.

Rehearing Denied Feb. 27, 1989.

Larry Helm Spalding, Capital Collateral Representative, and Billy H. Nolas and Julie Naylor, Staff Attys., Office of the Capital Collateral Representative, Tallahassee, for petitioner.

Robert A. Butterworth, Atty. Gen., and Ralph Barreira, Asst. Atty. Gen., Miami, for respondent.

PER CURIAM.

Norman Parker, under sentence of death, petitions this Court for a writ of habeas corpus and requests a stay of execution. We have jurisdiction under article V, section 3(b)(9) of the Florida Constitution.

The facts surrounding the crime are fully set forth in our opinion on direct appeal, Parker v. State, 456 So.2d 436 (Fla.1984). Petitioner presents seven issues for our consideration. First, he argues that a pretrial statement given to Metro Dade policemen was obtained in violation of his fifth and sixth amendment rights to counsel. This issue was presented and rejected on direct appeal as procedurally barred because petitioner failed to object at trial and did not preserve the issue for appeal. It is still procedurally barred. Moreover, even if the issue was cognizable in postconviction proceedings, which it is not, such claims are cognizable only under rule 3.850 of the Florida Rules of Criminal Procedure. ¹

Petitioner next claims that the felony murder instructions given to the jury were constitutionally deficient and that appellate counsel was ineffective for failing to raise this issue. During the oral instructions, the trial judge inadvertently omitted the definition of first-degree felony murder. The definition was included in the written instructions which the jury was told it should review if in doubt on any instruction. Although the judge asked if there had been any omissions to the instructions, trial counsel did not bring the omission to the attention of the court and the issue was not preserved for appeal. Appellate counsel cannot be faulted for not raising an unpreserved issue. Moreover, even if the written instructions were not sufficient to advise the jury, the omission is harmless. The prosecution placed heavy emphasis on the evidence showing that the murder was premeditated, not merely that it was committed during the course of a felony, and that the jury returned verdicts of guilt on four counts of robbery, sexual battery, and unlawful possession of a firearm during the commission of a felony. This was not merely a murder occurring during a felony. In finding that the murder was cold, calculated, and premeditated, we stated:

The evidence shows that the murder victim had been pleading with defendant not to harm his girl friend and, at the time he was murdered, was lying naked, face down, on a bed. Before killing the victim by a gunshot blast into his back, defendant accepted a pillow from his partner in order to muffle the shot. It is clear beyond any reasonable doubt that the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification, in order to prevent any interference by the murder victim with the sexual battery which immediately followed the murder.

Parker, 456 So.2d at 444. Under the circumstances, the ommission was harmless. Brown v. State, 521 So.2d 110 (Fla.1988); Teffeteller v. State, 439 So.2d 840 (Fla.1983), cert. denied, 465 U.S. 1074, 104 S.Ct. 1430, 79 L.Ed.2d 754 (1984); Frazier v. State, 107 So.2d 16 (Fla.1958).

Petitioner's third claim is that he was prejudiced by (1) the trial court's failure to instruct the jury on lesser included offenses of the contemporaneous noncapital felonies with which he was charged, and (2) appellate counsel's subsequent failure to raise this issue on appeal. In support, petitioner relies on Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Harris v. State, 438 So.2d 787 (Fla.1983). In Beck, an Alabama statute prohibited giving jury instructions on noncapital lesser included offenses when a capital offense was charged even if the evidence would support a conviction on such lesser included offenses. The effect of this was to present the jury with the choice of guilty or not guilty of the charged capital offense. The United States Supreme Court reasoned that this stark choice might lead a jury to convict on the capital offense, even though it had a reasonable doubt, because it was clear from the evidence that the accused had committed a murder and should not be totally acquitted. The Court concluded that the preclusion introduced "a level of uncertainty and unreliability into the fact-finding process that cannot be tolerated in a capital case." Id. 447 U.S. at 643, 100 S.Ct. at 2392. See also Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982), where the Court revisited Beck and held that the Alabama statute did not prejudice the defendant where the capital offense was clearly proven and the evidence would not have permitted a jury to rationally find him guilty of the lesser offense and not guilty of the greater capital offense. The factual situation here is unlike that of Beck. The jury was instructed on the noncapital lesser included offenses to first-degree murder and was not presented with the stark choice condemned in Beck. Moreover, instructions on the lesser included offenses to the contemporaneous, noncapital felonies were not given at the request of defense counsel.

Petitioner nevertheless argues that under our decision in Harris, he was absolutely entitled to the instructions barring an explicit personal waiver by himself. In Harris, the defense counsel requested that instructions on the lesser included offenses to first-degree (capital) murder not be given whereupon "[t]he trial court, before agreeing ... questioned Harris and obtained an unambiguous waiver from Harris of his right to have these instructions given." 438 So.2d at 792. We acknowledged the Beck holding that a state could not prohibit the giving of lesser-included instructions to a capital offense without violating the United States Constitution, but held that the personal waiver by Harris was permissible. Although the issue was not presented, we went on to add that there must be more than a request from counsel that the instructions not be given, that there must be an express waiver by the defendant which was knowingly and intelligently made. It is this latter pronouncement which petitioner relies on in arguing that he did not personally and expressly waive the lesser-included instructions to the noncapital offenses. Petitioner's argument is flawed in three respects. First, unlike Beck and Harris, instructions on the lesser included offenses of the first-degree (capital) offense were given to the jury and it was not presented with the stark choice condemned in Beck. Second, petitioner does not cite or allude to Jones v. State, 484 So.2d 577 (Fla.1986), where we limited Harris to its factual context and held that the requirement that a defendant personally and expressly waive instructions on lesser included offenses did not apply in the noncapital context. In doing so, we reaffirmed in a noncapital context the...