Pope v. Wainwright, 67054
| Citation | 496 So.2d 798,11 Fla. L. Weekly 533 |
| Decision Date | 16 October 1986 |
| Docket Number | No. 67054,67054 |
| Parties | 11 Fla. L. Weekly 533 Thomas Dewey POPE, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, Respondent. |
| Court | United States State Supreme Court of Florida |
Sylvia H. Walbolt, C. Timothy Corcoran, III, James A. Gresser, Alan F. Wagner, and Deborah H. Ross of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for petitioner.
Jim Smith, Atty. Gen. and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for respondent.
Alleging that he received ineffective assistance of appellate counsel, Thomas Dewey Pope, a prisoner under sentence of death, petitions this Court for a writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(9), Fla. Const. Finding no merit in this claim, we deny the petition.
Pope was convicted of three counts of murder in the first degree. The jury recommended and the trial judge imposed life sentences for two of the murders and a sentence of death for the third. We affirmed the convictions and sentences in Pope v. State, 441 So.2d 1073 (Fla.1983). Pope contends that his appellate counsel was ineffective for failing to raise a number of "crucial and dispositive points" on appeal; and he asks that we now consider these issues on the merits.
As recently noted in Johnson v. Wainwright, 463 So.2d 207 (Fla.1985), the issue before us when entertaining a petition for writ of habeas corpus based on a challenge of ineffective assistance of appellate counsel is limited to, first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. Id. at 209. We further noted in Johnson that although an ineffective assistance of appellate counsel claim is logically based on the premise that the omitted argument, if raised, would have been considered meritorious, the merits of the underlying legal issue are not before us. The merits of the omitted argument are "cognizable only by means of specific objection at trial and presentation on appeal and we will not allow [a] habeas corpus proceeding to become a direct vehicle for belated appellate review." Id. at 210. Since the merits of the legal points which are the basis of the petitioner's claim of ineffective assistance are "mere abstractions" in this proceeding, we shall address the merits of each point only to the extent necessary to dispose of his claim.
Pope maintains that the points he now raises, if brought to this Court's attention in his original appeal, would have resulted in the granting of either a new trial or a As his first point Pope argues that the cumulative effect 1 of allegedly prejudicial comments by the trial judge and prosecutor deprived him of a fair and impartial determination of 1) his guilt or innocence based solely upon the evidence and the law; and 2) the appropriateness of the death penalty. Pope maintains that the trial judge made two types of prejudicial statements: 1) those which undermined the importance of the jury instructions and encouraged the jury to reach a verdict based on matters outside the evidence; and 2) those which "insinuated against" the petitioner and his counsel, influencing the jury to find the petitioner guilty. The petitioner also points to a number of improper comments by the prosecutor, most notably: 1) those referring to the petitioner's carefree demeanor off the witness stand; 2) those expressing the prosecutor's personal belief in his case and in the credibility of the state's star witness; and 3) those emphasizing a statement made out of the presence of the jury concerning the petitioner's preference for the death penalty.
new sentencing proceeding. None of these newly alleged errors were raised at trial. Recognizing that appellate counsel cannot be considered ineffective for failing to raise issues which he was procedurally precluded from raising, unless such errors are fundamental in nature, see Downs v. Wainwright, 476 So.2d 654 (Fla.1985); Ruffin v. Wainwright, 461 So.2d 109 (Fla.1984), Pope argues that the "neglected" errors either individually or in combination deprived him of his fundamental right to a fair trial.
First, we note that under the current capital felony sentencing law, section 921.141, Florida Statutes (1985), a murder trial proceeds in two stages, a guilt phase followed by a sentencing proceeding. Since the jury does not hear evidence or arguments directed solely toward the issue of sentencing until after its determination on the issue of guilt, alleged errors occurring during the sentencing phase of the trial cannot influence a jury on the issue of guilt or innocence. Therefore, in addressing petitioner's cumulative impact argument, we first consider those errors alleged to have occurred during the guilt phase of the trial.
Pope points to several comments made by the trial judge during opening remarks to the venire and during final jury instructions on the issue of guilt, and argues that these comments could have led the jury to disregard the instructions and evidence presented and base its verdict on common sense feelings of right and wrong. He argues that other comments evidenced the trial court's lack of neutrality and implied that the court believed the defendant to be guilty. None of these comments were objected to at trial. This Court has consistently held that "even constitutional errors, other than those constituting fundamental error, are waived unless timely raised in the trial court." Clark v. State, 363 So.2d 331, 333 (Fla.1978); See also State v. Cumbie, 380 So.2d 1031 (Fla.1980); Sanford v. Rubin, 237 So.2d 134 (Fla.1970).
Although after reviewing the record, we find it unlikely that the comments complained of lessened the importance of the jury instructions, even if these comments were found to have the effect complained of, this "error" is not so fundamental as to require a new trial. See Gibbs v. State, 193 So.2d 460, 463 (Fla. 2d DCA 1967) (). Furthermore, considering these comments in combination with other challenged comments occurring during the guilt phase of the trial, we cannot say that the overall fairness of the trial was fundamentally impaired. First, the comments which petitioner The petitioner's claims that the judge unnecessarily interjected himself into the trial and that he evidenced favoritism for the state are likewise totally without merit. The record reflects that in most instances complained of the trial judge was simply attempting to clarify questions during voir dire examination. This is clearly not the type or extent of interjection which has been found objectionable. Compare, e.g., Jones v. State, 385 So.2d 132 (Fla. 4th DCA 1980) (); Keane v. State, 357 So.2d 457 (Fla. 4th DCA 1978) ().
maintains evidenced the trial court's lack of neutrality, when taken in context, cannot reasonably be said to have led to any inference as to the trial judge's view of the case or to have otherwise deprived the defendant of his right to an impartial tribunal. In support of his claim of lack of neutrality, the petitioner strings together a number of rather innocuous statements, one of which is part of the standard jury instructions. 2
The only other alleged error occurring during the guilt phase of the trial which merits discussion was made by the prosecutor during his closing argument. Seemingly in response to defense counsel's comment that the state's star witness, Pope's girlfriend, was grinning while testifying, the prosecutor stated: Although comments on a defendant's demeanor off the witness stand are clearly improper, 3 under the circumstances this comment cannot be said to amount to fundamental error and, since not preserved by contemporaneous objection and motion for mistrial, was not reviewable on appeal. See State v. Cumbie, 380 So.2d 1031 (Fla.1980) ().
At first blush, the petitioner's cumulative impact argument may appear very persuasive; however, after reviewing the entire record and all the challenged comments which arguably could have influenced the jury in its determination of guilt, we find that the comments taken individually or as a whole did not so infect the proceeding as to deprive the petitioner of his fundamental right to a fair trial.
The vast majority of the questionable prosecutorial comments occurred during the penalty phase of the trial. During his final argument to the jury, the prosecutor vouched for his case and for the credibility of the state's star witness and argued that the petitioner showed no remorse for his acts:
I'm certainly familiar with the evidence over the last year and certainly familiar with Miss Susan Eckerd. I have met her on more than one occasion than when she was on the stand. I believed in the case I presented.... There is no remorse. You haven't seen a grain [of] remorse. If there is ever going to be a tear in Tom Pope's eye, it is going to be for himself.
Although the petitioner's preference for the death penalty had been expressed out of the presence...
To continue reading
Request your trial
-
Geralds v. Inch
...compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986); see also Freeman, 761 So. 2d at 1069; Thompson v. State, 759 So. 2d 650, 660 (Fla. 2000). In raising such a claim, "[t]he defen......
-
Combs v. State
...have previously taken in Smith v. State, 515 So.2d 182 (Fla.1987); Aldridge v. State, 503 So.2d 1257, 1259 (Fla.1987); Pope v. Wainwright, 496 So.2d 798, 804 (Fla.1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987); Darden v. State, 475 So.2d 217, 221 (Fla.1985). See al......
-
Grossman v. State
...clearly distinguishable. Combs v. State, 525 So.2d 853 (Fla.1988); Aldridge v. State, 503 So.2d 1257, 1259 (Fla.1987); Pope v. Wainwright, 496 So.2d 798, 804 (Fla.1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987); Darden v. State, 475 So.2d 217, 221 In the second pron......
-
State v. Joyner, 14349
...of a proper objection, courts in other jurisdictions have refused to order a new trial on this ground. See, e.g., Pope v. Wainwright, 496 So.2d 798, 802 (Fla.1986), cert. denied sub nom. Pope v. Dugger, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987).11 In its curative instruction, the ......