Porter v. State, 90101.

• Decision Date: 15 October 1998
• Docket Number: No. 90101.,90101.
• Citation: 723 So.2d 191
• Parties: Raleigh PORTER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

723 So.2d 191

Raleigh PORTER, Appellant, v. STATE of Florida, Appellee.

No. 90101.

Supreme Court of Florida.

October 15, 1998.

Rehearing Denied December 15, 1998.

Martin J. McClain, Litigation Director CCRC, and Todd G. Scher, Chief Assistant CCRC, Office of the Capital Collateral Regional Counsel for the Southern Region, Miami, for Appellant.

Robert A. Butterworth, Attorney General, and Robert J. Landry, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Raleigh Porter appeals an order entered by the circuit court below pursuant to Florida Rule of Criminal Procedure 3.850 which found that Judge Richard M. Stanley Jr. was impartial at the time he sentenced appellant to death in 1978 and again in 1981. The circuit court's order stems from an evidentiary hearing required by a decision of the Eleventh Circuit Court of Appeals in Porter v. Singletary, 49 F.3d 1483 (11th Cir.1995). We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. State v. Fourth District Court of Appeal, 697 So.2d 70, 71 (Fla.1997). We reverse the circuit court's order because we determine that the trial judge erred as a matter of law in finding that Judge Stanley was impartial when he sentenced appellant to death.

Appellant's case has a long judicial history, as detailed in Porter v. Singletary, 49 F.3d 1483 (11th Cir.1995) (affirming in part, vacating in part denial of habeas petition and holding appellant entitled to evidentiary hearing); Porter v. Singletary, No. 95-109-CIV-FTM-17D (M.D.Fla.1995) (denying successive petition for writ of habeas corpus); Porter v. Singletary, 14 F.3d 554 (11th Cir. 1994) (affirming judgment), cert. denied, 513 U.S. 1009, 115 S.Ct. 532, 130 L.Ed.2d 435 (1994); Porter v. Dugger, 805 F.Supp. 941 (M.D.Fla.1992) (vacating order); Porter v. Dugger, 777 F.Supp. 934 (M.D.Fla.1991) (denying habeas petition); Porter v. Wainwright, 805 F.2d 930 (11th Cir.1986), cert. denied, 482 U.S. 918, 107 S.Ct. 3195, 96 L.Ed.2d 682, and cert. denied, 482 U.S. 919, 107 S.Ct. 3196, 96 L.Ed.2d 683 (1987); Porter v. State, 700 So.2d 647 (Fla.1997) (holding Capital Collateral Representative responsible for court reporting costs); Porter v. State, 688 So.2d 318 (Fla.1997) (denying motion to disqualify Twentieth Judicial Circuit); Porter v. State, 653 So.2d 374 (Fla.) (affirming denial of 3.850 motion and holding that habeas corpus claim was barred), cert. denied, 514 U.S. 1092, 115 S.Ct. 1816, 131 L.Ed.2d 739 (1995); Porter v. Dugger, 559 So.2d 201 (Fla. 1990) (denying habeas corpus petition); Porter v. State, 478 So.2d 33 (Fla.1985) (affirming denial of rule 3.850 motion); Porter v. State, 429 So.2d 293 (Fla.) (affirming convictions and sentence), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983); and Porter v. State, 400 So.2d 5 (Fla.1981) (affirming convictions; vacating sentence). The facts of the case are set forth in detail in these various opinions.

The judicial proceedings began with a trial in November 1978 before a jury in Glades County with Judge Stanley presiding. The jury recommended sentences of life without the possibility of parole for twenty-five years for the two first-degree murders of which the jury had found appellant guilty. Judge Stanley overrode the recommendations of life sentences and entered sentences of death. In its first review in 1981, this Court reversed the death sentences because of a procedural error. Porter, 400 So.2d at 6. The resentencing was solely a reconsideration by Judge Stanley free from the procedural error that had required the reversal. On remand, Judge Stanley again overrode the jury's recommendation of life in prison and sentenced appellant to death. On appeal, the sentences of death were affirmed. Porter, 429 So.2d at 294.

Following the signing of a second death warrant for appellant's execution on March 1, 1995, we had before us appellant's appeal from the denial of his second motion for postconviction relief. Germane to the present appeal is the following from our opinion issued March 28, 1995, affirming the trial court's denial of the motion pursuant to Florida Rule of Criminal Procedure 3.850:

We begin by addressing an issue raised in this appeal which was not presented to the judge in this motion. Porter claims that the original trial judge's statement in a newspaper interview, the contents of which were published on March 23, 1995, indicating that the trial judge had already decided to sentence Porter to death before receiving the jury's advisory sentence, establishes that Porter's life recommendation was overruled by a judge who was biased in favor of the death penalty. However, even accepting the assertion about the judge's statement in the interview as true, any claim based upon that statement is procedurally barred. Information upon which Porter claims bias of the trial judge has long been available to Porter. In fact, Porter has raised the issue of judicial bias on several prior occasions. The record clearly demonstrates that on November 30, 1978, the trial judge entered a judgment and sentence stating that Porter was to be executed for both Count I and Count II although the jury did not recommend a sentence for each count until December 1, 1978. The newspaper article says nothing more than what was already in the original 1978 sentencing order. The 1978 sentence has since been reversed. Porter's present attack is based upon the 1981 sentencing order, but we find nothing demonstrating that the newspaper article pertains to the 1981 sentencing.

Porter, 653 So.2d at 377-78 (footnote omitted).

Appellant thereafter filed a petition for writ of habeas corpus in the United States District Court, Middle District of Florida, which was denied. Porter v. Singletary, No. 95-109-CIV-FTM-17D (M.D.Fla. Mar.30, 1995). In its review of the denial of the writ, the Eleventh Circuit Court of Appeals stated in respect to appellant's claim concerning Judge Stanley's lack of impartiality:

Finally, Porter claims that he was denied his constitutional right to an impartial sentencing judge. Porter supports this claim with a proffer of crucial new evidence as follows: On Tuesday morning, March 28, 1995, counsel for Porter received a telephone call from Jerry Beck, the Clerk of the Glades County Circuit Court in which Porter was sentenced. The Clerk stated that he had some information regarding Porter's case, and that he was informing both the state attorney's office and Porter's counsel. The Clerk stated that either before or during Porter's trial, the judge presiding over the case, the Honorable Richard M. Stanley, stopped by the Clerk's Office early one morning, and the judge and the Clerk drank coffee together. The judge stated that he had changed the venue in the Porter trial from Charlotte County to Glades County because there had been a lot of publicity and Glades County "had good, fair minded people here who would listen and consider the evidence and then convict the son-of-a-bitch. Then, Judge Stanley said, he would send Porter to the chair." Affidavit of Beck. [Note 5]

[Note 5.] The March 28, 1995, opinion of the Florida Supreme Court merely acknowledges consideration of this proffer. The proffer to the Florida Supreme Court was in the form of an affidavit of counsel reporting on the telephone conversation of that morning. The proffer has now been supplemented with an affidavit of Clerk Beck himself.

This evidence of predisposition finds some corroboration in a proffered statement by Judge Stanley to news reporters. [Note 6]

[Note 6.] On Thursday, March 23, 1995, an article appeared in the Gainesville Sun newspaper reporting on a recent interview with Judge Stanley, who is now retired. The article quotes Judge Stanley as saying that when the judgment was brought out by the jury finding him guilty, "I knew in my own mind what the penalty should be, and I sentenced him to it." In addition to the foregoing, Porter has proffered the following evidence. A Miami Herald news reporter telephoned his attorney on Friday, March 24, 1995, and counsel returned the call and talked by telephone with the reporter that evening. The reporter stated that Judge Stanley submitted to another interview with reporters on Thursday evening, March 23, 1995, in which he allegedly again admitted his premature determination of Porter's sentence, and also stated that he had engaged in a debate with foes of the death penalty around the time of Porter's trial. In that debate, Judge Stanley stated that, in answer to the question whether he would be willing to pull the switch, he had answered that he would so long as he could at the sentencing reach down his leg, pull up his pistol, and shoot them between the eyes.

Porter argues that the proffered evidence, if proved, would establish that his sentencing judge had made up his mind to sentence Porter to death before the penalty proceedings began. Porter argues that such predisposition violated his constitutional right to a fair and impartial tribunal.

In the Florida sentencing scheme, the sentencing judge serves as the ultimate factfinder. If the judge was not impartial, there would be a violation of due process.

Porter, 49 F.3d at 1487 (citation omitted) (emphasis added).

The federal appeals court then remanded the case to the district court for an evidentiary hearing to inquire into whether appellant had established cause in his successive federal petition to surmount the abuse of writ doctrine as well as the state procedural bar. Id. at 1489-90. The Eleventh Circuit held that if on remand appellant satisfied the cause standard, then he would be entitled to an opportunity to prove that his sentencing judge lacked impartiality and violated his constitutional right to a fair and impartial tribunal. Id. at 1490. The court included the following footnotes:

[Note 13.] As discussed in the text above, Porter has proffered specific facts which are sufficient to warrant an evidentiary hearing on the impartiality issue. If Porter can prove

...