Power v. State
| Decision Date | 06 May 2004 |
| Docket Number | No. SC02-874, No. SC03-28. |
| Citation | 886 So.2d 952 |
| Parties | Robert Beeler POWER, Appellant, v. STATE of Florida, Appellee. Robert Beeler Power, Petitioner, v. James V. Crosby, Jr., etc., Respondents. |
| Court | Florida Supreme Court |
Pamela H. Izakowitz, Capital Collateral Regional Counsel — South, Tampa, FL; and Rachel L. Day, Assistant CCRC, Fort Lauderdale, FL, for Appellant/Petitioner.
Charles J. Crist, Jr., Attorney General, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, FL, for Appellee/Respondent.
Rehearing Denied as to SC02-874 July 8, 2004.
Robert Beeler Power, Jr., an inmate under the sentence of death, appeals an order of the circuit court denying a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.851 and petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons discussed below, we affirm the trial court's denial of post-conviction relief, and we deny Power's petition for writ of habeas corpus.
Robert Beeler Power was convicted of first-degree murder for the 1992 murder of twelve-year-old Angeli Bare.1 At the conclusion of the guilt phase proceedings, there was a five-month delay prior to the beginning of the penalty phase, following which the jury unanimously issued a recommendation of death. Upon a finding of four aggravating factors and no mitigating factors, the trial court accepted the jury's recommendation and sentenced Power to death.2 On direct appeal, this Court affirmed Power's conviction and sentence, although we did overturn the trial court's finding that the murder was cold, calculated and premeditated (CCP). See Power, 605 So.2d at 864.
In November 1998, Power filed a motion to vacate judgment of conviction and sentence, in which he raised thirty-eight claims. A Huff3 hearing was held pursuant to Power's motion, and the trial court directed an evidentiary hearing on several of Power's claims. Twenty-five witnesses testified at the evidentiary hearing, following which the trial court denied Power's motion for post-conviction relief in its entirety. Power now appeals the denial of post-conviction relief to this Court, and also petitions this Court for a writ of habeas corpus.
In this appeal, Power challenges the trial court's summary denial of several claims which he argues warranted an evidentiary hearing. This Court has explained that "a defendant is entitled to an evidentiary hearing on a post-conviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient." Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000). We address each of Power's claims in turn.
The trial court summarily denied Power's claims that trial counsel was ineffective for failing to object to what he contends were constitutional errors. Power asserts the following: (1) the instruction given to the jury on the HAC aggravator was unconstitutional; (2) the burden of proof was improperly shifted to Power during the penalty phase; and (3) the finding of the prior violent felony aggravator and offense committed during the commission of an enumerated felony aggravator rendered him automatically eligible for the death penalty. We conclude that the trial court properly denied this claim, as each of the individual assertions fail for being procedurally barred or for being without legal merit. See Freeman v. State, 761 So.2d 1055 (Fla.2000); Blanco v. State, 706 So.2d 7, 11 (Fla.1997); Johnson v. State, 660 So.2d 637, 647-48 (Fla.1995).
Power also contends that the trial court erroneously denied his claim that trial counsel was ineffective for failing to object to a prosecutorial comment which he claims amounted to the establishment of nonstatutory aggravating circumstances. This claim stems from the prosecutor's statement made during argument of the HAC aggravator: "Angeli didn't survive to tell us what happened, but when we listened to the stories of Ms. Wallace, when we listened to the testimony of the Warden children, we realized that he takes pleasure in inflicting pain." The trial court found that this claim was procedurally barred because Power appealed the sufficiency of the HAC aggravator on direct appeal; the trial court also found that trial counsel was not ineffective under the circumstances where he also kept evidence and testimony of Power's prior crimes, including victim impact evidence, away from the jury; successfully argued a motion challenging the constitutionality of section 921.143, Florida Statutes; and challenged the HAC instruction at the charge conference, even objecting again after the instruction was given. We agree with the trial court's conclusion that this claim fails on its face in setting out a valid claim of counsel's ineffectiveness considering the content of the entire statement at issue.
Power also contends that during the guilt and penalty phases, trial counsel rendered ineffective assistance when he failed to object to other comments made by the prosecution. We have no problem with the trial court's summary denial of this claim. The trial court first found that this claim was procedurally barred where it was raised and rejected on direct appeal. See Power, 605 So.2d at 861 ( ).
We also agree with the trial court's conclusion on the merits that trial counsel was not deficient with respect to this claim, inasmuch as trial counsel did object to certain statements, and even moved for a mistrial, albeit unsuccessfully, on the grounds of other improper prosecutorial comments.
Next, Power contends that trial counsel was ineffective for allowing an improper instruction on flight. We agree with the trial court's summary denial of this claim as procedurally barred. This issue was addressed on direct appeal where this Court held that the use of the flight instruction constituted harmless error. See Power, 605 So.2d at 861. In addition, as the trial court pointed out in its order denying post-conviction relief, counsel actually objected to the instruction several times.
Power also argues that the trial court erred in refusing to authorize him to interview jurors to discover possible juror prejudices, and that rule 4-3.5(d)(4) of the Rules Regulating the Florida Bar4 violates the state and federal Constitutions and his right of access to the courts under article I, section 21 of the Florida Constitution. First, "juror interviews are not permissible unless the moving party has made sworn allegations that, if true, would require the court to order a new trial because the alleged error was so fundamental and prejudicial as to vitiate the entire proceedings." Johnson v. State, 804 So.2d 1218, 1224 (Fla.2001) (citing Baptist Hosp. of Miami, Inc. v. Maler, 579 So.2d 97, 100 (Fla.1991)). Power's allegations do not satisfy this standard. Further, this claim is procedurally barred because it could have been raised on direct appeal.
We also reject Power's constitutional challenges to rule 4-3.5(d)(4). This Court has previously rejected similar constitutional challenges to this rule. See Johnson v. State, 804 So.2d 1218, 1224 (Fla.2001) (); Rose v. State, 774 So.2d 629, 637 n. 12 (Fla.2000) (). As a result, the trial court properly summarily denied this claim.
Power argues that the trial court erroneously failed to find statutory and nonstatutory mitigation on his behalf. However, a claim that a trial court erred by failing to consider mitigating evidence must be presented on direct appeal. See Rivera v. State, 717 So.2d 477, 480 (Fla.1998); Cherry v. State, 659 So.2d 1069, 1071 (Fla.1995). Post-conviction proceedings are no substitute for appeals.
Power also argues that numerous scrivener's errors and unrecorded sidebars violated his right to effective appellate review. We reject this claim as procedurally barred because Power actually raised this claim on direct appeal and it was rejected. On direct appeal, this Court said: "Lastly, we reject as meritless Power's claims that (1) he was denied effective assistance of counsel and a full appellate review due to inaccuracies in the trial transcript...." Power, 605 So.2d at 864.
Lastly, Power contends that Florida's death penalty unconstitutionally permits cruel and unusual punishment, and that he is insane to be executed. This Court has previously rejected similar claims regarding the constitutionality of Florida's death penalty. See Provenzano v. State, 761 So.2d 1097, 1099 (Fla.2000) (); Provenzano v. Moore, 744 So.2d 413, 416 (Fla.1999) (). Furthermore, we reject as premature Power's claim that he is insane to be executed. As he acknowledges, this claim is not yet ripe and therefore, merits no relief from this Court.
As to those claims considered at Power's evidentiary...
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