Riley v. State, s. 63750
| Decision Date | 03 June 1983 |
| Docket Number | Nos. 63750,63730 and 63749,s. 63750 |
| Parties | Wardell RILEY, Appellant, v. STATE of Florida, Appellee. Wardell RILEY, Petitioner, v. Louie L. WAINWRIGHT, etc., Respondent. Wardell RILEY, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Richard H. Frank and Richard T. Donelan, Jr. of the Law Offices of Frank & Kelly, Tampa, Robert W. Pope of the Law Offices of Robert W. Pope, St. Petersburg, for appellant/petitioner.
Jim Smith, Atty. Gen. and Paul Mendelson, Asst. Atty. Gen., Miami, for appellee/respondent.
Wardell Riley appeals the trial court's denial of his motion to vacate his judgment and sentence. He also has filed a petition for writ of habeas corpus, a petition for leave to apply for a writ of error coram nobis, and a motion for stay. Finding that Riley's claims are without merit, we affirm the trial court's denial of the motion to vacate, and we deny the petition for writ of habeas corpus and the petition for leave to apply for writ of error coram nobis. We also deny the motion for stay.
Riley was convicted of two counts of first-degree murder and one count of assault with intent to commit first-degree murder. After an advisory recommendation of death as to the first count of murder charged in the indictment and life as to the second count, the trial court sentenced Riley to death by electrocution for the murder of Peter Enea, Sr., and life imprisonment without the possibility of parole for twenty-five years for the murder of Robert Lisenby. He was sentenced to fifteen years for the assault with intent to commit murder of Peter Enea, Jr. On appeal, we affirmed Riley's convictions and his life and fifteen-year sentences. Finding that the trial court improperly considered aggravating factors outside the statutory list and erroneously found two statutory aggravating factors, we remanded the cause to the trial court for the sole purpose of allowing the trial judge to reconsider the imposition of the death sentence in accordance with section 921.141(5), Florida Statutes (1975). Riley v. State, 366 So.2d 19 (Fla.1978). Upon remand, the trial court held an additional sentencing hearing and, thereafter, again imposed the sentence of death. Riley appealed this death sentence and contended that the jury's recommendation was tainted by consideration of improper aggravating circumstances, that the trial court failed to consider certain evidence introduced to demonstrate nonstatutory mitigating factors, and that imposition of a death sentence upon him violates the eighth and fourteenth amendments of the federal constitution. We rejected each of these points as being without merit and affirmed his sentence of death. Riley v. State, 413 So.2d 1173 (Fla.1982). The Supreme Court of the United States denied his petition for writ of certiorari. Riley v. Florida, --- U.S. ----, 103 S.Ct. 317, 74 L.Ed.2d 294 (1982).
On May 12, 1983, the Governor signed a death warrant for Riley. On May 23, 1983, Riley filed a motion to vacate his judgment and sentence in the trial court and a motion for stay of execution and for an evidentiary hearing. After hearing argument of counsel on these motions, the trial court denied the motion to vacate without an evidentiary hearing and denied the motion to stay. Riley has now appealed the trial court's denial of his motion for postconviction relief. Concurrent with his filing of his motion to vacate, he has filed a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel and a petition for leave to file a writ of error coram nobis alleging newly discovered evidence.
Riley challenges the denial of his motion for postconviction relief without an evidentiary hearing. We find that all of the grounds for relief raised by Riley were properly denied without an evidentiary hearing. As we have repeatedly held, when the motion and record conclusively demonstrate that the movant is not entitled to relief, the motion may be denied without an evidentiary hearing. Muhammad v. State, 426 So.2d 533 (Fla.1982).
Riley alleged that his death sentence was obtained in violation of his rights guaranteed by the sixth, eighth, and fourteenth amendments to the federal constitution because the jury was not instructed that a six-six split on their decision to recommend life or death results in a life recommendation, because the jury should not have been instructed to consider all statutory aggravating factors, and because Florida law at the time of trial required that all capital jurors be instructed on lesser offenses to murder in the first degree where those offenses are wholly unsupported by the evidence. There is no merit to these contentions. We have already determined that the jury in this case was properly instructed at the sentencing hearing. Riley v. State, 413 So.2d at 1174. Additionally, we have recently rejected similar arguments in Hitchcock v. State, 432 So.2d 42 (Fla.1983), wherein we said:
The claim that the current standard jury instructions (which require instructing only on those lesser degrees of homicide supported by the evidence and which is similar to the instruction upheld in Hopper v. Evans 102 S.Ct. 2049 (1982)) makes the former jury instruction arbitrary because of unchannelled jury discretion does not meet the test set out in Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067 [101 S.Ct. 796, 66 L.Ed.2d 612] (1980), for providing relief because of a change in the law. Instructing on all of the statutory aggravating circumstances has been upheld previously in Straight v. Wainwright, 422 So.2d 827 (Fla.1982). Finally, the claim that Rose v. State, 425 So.2d 521 (Fla.1982), has invalidated the standard jury instruction regarding the vote needed to make a recommendation as to death or life imprisonment misconstrues Rose, in which we found giving an "Allen" [ v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896) ] charge to the jury during deliberation over sentence to have been unwarranted.
Riley also alleged that his counsel was ineffective because he failed to object to the trial court's instruction regarding the weighing of aggravating and mitigating factors, failed to adequately confer with Riley during the penalty phase, failed to investigate certain mitigating evidence, failed to investigate facts which would have undermined the credibility of the eyewitness, failed to utilize adequate funds for investigative purposes, failed to object to allegedly inflammatory comments to the jury made by the prosecutor, and failed to object at resentencing to the trial court's failure to impanel a new jury. Applying the test announced in Knight v. State, 394 So.2d 997 (Fla.1981), we find nothing in the record to indicate that Riley's counsel was ineffective. Riley failed to show that the detailed acts or omissions constituted a substantial and serious deficiency measurably below the standard of competent counsel.
Riley further alleged that, based on a twenty-one-county study on the imposition of the death penalty in Florida, Florida's death penalty has been imposed in an arbitrary, capricious, and irrational manner. We rejected identical claims in Hitchcock v. State and Thomas v. State, 421 So.2d 160 (Fla.1982).
The trial court did not err in denying Riley's motion to vacate without an evidentiary hearing.
Riley argues that his appellate counsel was ineffective in failing to argue on Riley's first appeal that the jury's death recommendation was tainted by the State's presentation of nonstatutory aggravating circumstances and that, therefore, Riley should be given a new jury sentencing hearing. Considering Riley's claim in light of the standards announced in Knight v. State, we find no substantial and serious deficiency in Riley's representation on appeal by which he was prejudiced.
Initially, we point out that, since trial counsel had not objected to the introduction of this evidence during the first sentencing hearing, this issue was not preserved for appeal. We so found in our second Riley decision. Moreover, however, we stated that, if the issue were properly before us, we would find that the jury was properly instructed and that the record does not reveal that the jury based its recommendation on improper considerations.
In Hallman v. State, 371 So.2d 482 (Fla.1979), we set out the specific requirements of a petition for leave to file this writ addressed to the appellate court. We said:
A petition for this writ addressed to the appellate court must disclose fully the alleged facts relied on; mere conclusory statements are insufficient. The appellate court must be afforded a full opportunity to evaluate the alleged facts for itself and to determine whether they establish prima facie grounds. Lamb v. State, supra [91 Fla. 396, 107 So. 535 (1926) ]; Washington v. State, 92 Fla. 740, 110 So. 259 (1926); Urga v. State, 157 Fla. 794, 26 So.2d 786 (1946). Furthermore, the petition should assert the evidence upon which the alleged facts can be proved and the source of such evidence. Russ v. State, 95 So.2d 594 (Fla.1957). The function of a writ of error coram nobis is to correct errors of fact, not errors of law. Leavitt v. State, 116 Fla. 738, 156 So. 904 (1934). The facts upon which the petition is based must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence. Kinsey v. State, 155 Fla. 159, 19 So.2d 706 (1944).
371 So.2d at 484-85. The petition must allege facts of such a vital nature that had they been known to the trial court, they conclusively would have prevented entry of judgment.
Riley alleges newly discovered evidence in the form of an affidavit by an inmate, Anthony Saia, who formerly resided for...
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