Riley v. Wainwright, 69563

• Decision Date: 03 September 1987
• Docket Number: No. 69563,69563
• Citation: 12 Fla. L. Weekly 457,517 So.2d 656
• Parties: 12 Fla. L. Weekly 457 Wardell RILEY, Petitioner, v. Louie L. WAINWRIGHT, etc., et al., Respondents.
• Court: Florida Supreme Court

Page 656

517 So.2d 656

12 Fla. L. Weekly 457

Wardell RILEY, Petitioner, v. Louie L. WAINWRIGHT, etc., et al., Respondents.

No. 69563.

Supreme Court of Florida.

Sept. 3, 1987.

Rehearing Denied Jan. 25, 1988.

Larry Helm Spalding, Capital Collateral Representative, Mark E. Olive, Litigation Coordinator, and James Lohman, Atty., Office of the Capital Collateral Representative, Tallahassee, for petitioner.

Robert A. Butterworth, Atty. Gen. and Julie S. Thornton, Asst. Atty. Gen., Miami, for respondents.

BARKETT, Justice.

Wardell Riley, a Florida prisoner under sentence of death and execution warrant, petitioned this Court for a writ of habeas corpus and a stay of execution. Riley argued, among other things, that the advisory jury at sentencing was improperly restricted in its consideration of mitigating factors in violation of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). We granted Riley's application for stay of execution and requested supplemental briefing on the issue of "whether or not this Court can give retroactive application to Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), as it affects a jury's recommendation of sentence." We have jurisdiction. Art. V, § 3(b)(1) and (9), Fla.Const. We now grant the writ and remand for a new sentencing proceeding before a jury.

In February 1976 a jury convicted Riley of, among other things, two counts of first-degree murder. The jury recommended and the trial judge imposed a sentence of death as to one of the murder counts. This Court affirmed Riley's convictions but remanded for resentencing because the trial judge had considered aggravating factors not provided for by statute. Riley v. State, 366 So.2d 19 (Fla.1978) (Riley I ). After a second sentencing hearing, the trial judge (without the benefit of a new jury recommendation) again sentenced Riley to death. We affirmed the sentence in Riley v. State, 413 So.2d 1173 (Fla.) (Riley II ), cert. denied, 459 U.S. 981, 103 S.Ct. 317, 74 L.Ed.2d 294 (1982). Thereafter, Riley's claims were rejected in state and federal post-conviction proceedings. Riley v. State, 433 So.2d 976 (Fla.1983) (Riley III ); Riley v. Wainwright, 778 F.2d 1544 (11th Cir.1985), cert. denied, 479 U.S. 871, 107 S.Ct. 240, 93 L.Ed.2d 165 (1986).

Lockett and its progeny hold that the eighth amendment requires individualized determinations of sentences in capital cases. Accordingly, "the sentencer may not refuse to consider or be precluded from considering 'any relevant mitigating evidence.' " Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1 (1986), quoting Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 877, 71 L.Ed.2d 1 (1982). See also Lockett v. Ohio, 438 U.S. at 604, 98 S.Ct. at 2964 (1978) (plurality opinion).

Lockett clearly is retroactive as it applies to the sentencing judge. The United States Supreme Court repeatedly has vacated death sentences imposed prior to Lockett by procedures forbidden by Lockett. See, e.g., Eddings, 455 U.S. at 118, 102 S.Ct. at 878 (1982) (O'Conner, J., concurring); Downs v. Ohio, 438 U.S. 909, 98 S.Ct. 3133, 57 L.Ed.2d 1153 (1978); Shelton v. Ohio, 438 U.S. 909, 98 S.Ct. 3133, 57 L.Ed.2d 1153 (1978). This Court likewise has applied Lockett to vacate death sentences imposed before Lockett was decided. E.g., Perry v. State, 395 So.2d 170, 174 (Fla.1980). The Eleventh Circuit Court of Appeals has expressly held Lockett to be retroactive. Songer v. Wainwright, 769 F.2d 1488, 1489 (11th Cir.1985) (en banc ), cert. denied, 481 U.S. 1041, 107 S.Ct. 1982, 95 L.Ed.2d 822 (1987). In Harvard v. State, 486 So.2d 537 (Fla.), cert. denied, 479 U.S. 863, 107 S.Ct. 215, 93 L.Ed.2d 144 (1986), this Court concluded:

It is our independent view that an appellant seeking post-conviction relief is entitled to a new sentencing proceeding when it is apparent from the record that the sentencing judge believed that consideration was limited to the mitigating circumstances set out in the capital sentencing statute in determining whether to impose a sentence of death or life imprisonment without parole for twenty-five years. See Lockett; Eddings; (citations omitted).

Id. at 539. Thus, a judge who fails to consider or is precluded from considering nonstatutory mitigating circumstances commits reversible error whether sentence was imposed post- or pre-Lockett.

We turn now to the question of whether Lockett applies to a jury's recommendation of sentence. Because we already have determined that Lockett is retroactive, the proper inquiry is whether, in the context of Florida's capital sentencing scheme, Lockett 's requirement that a sentencer "not be precluded from considering ... any aspect of a defendant's character or record and any of the circumstances of the offense" applies to the jury's advisory recommendation. 438 U.S. at 604-05, 98 S.Ct. at 2964-65.

This Court has long held that a Florida capital sentencing jury's recommendation is an integral part of the death sentencing process. Lamadline v. State, 303 So.2d 17, 20 (Fla.1974) (jury recommendation can be "critical factor" in determining whether or not death penalty should be imposed). Under Tedder v. State, 322 So.2d 908, 910 (Fla.1975), a jury's recommendation of life must be given "great weight" by the sentencing judge. A recommendation of life may be overturned only if "the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ." Id.

This Court also has recognized that the jury's determination of the existence of any mitigating circumstances, statutory or nonstatutory, as well as the weight to be given them are essential components of the sentencing process. In Floyd v. State, 497 So.2d 1211 (Fla.1986), we held that it was error for the trial judge not to give any instructions on what could be considered in mitigation because such failure may have precluded from the jury's consideration relevant nonstatutory mitigating circumstances:

Under our capital sentencing statute, a defendant has the right to an advisory opinion from a jury.... In determining an advisory sentence, the jury must consider and weigh all aggravating and mitigating circumstances.... The jury must be instructed either by the applicable standard jury instructions or by specially formulated instructions, that their role is to make a recommendation based on the circumstances of the offense and the character and background of the defendant.

Id. at 1215 (citations omitted, emphasis added). Because Floyd was denied his right to a fair advisory opinion, we vacated his death sentence and remanded for resentencing before a properly instructed jury. Floyd made clear that improper, incomplete or confusing instructions relative to the consideration of both statutory and nonstatutory mitigating evidence does violence to the sentencing scheme and the jury's fundamental role in that scheme. As we pointed out:

The Legislature intended that the trial judge determine the sentence with advice and guidance provided by a jury, the one institution in the system of Anglo-American jurisprudence most honored for fair determinations of questions decided by balancing opposing factors. If the advisory function were to be limited initially because the jury could only consider those mitigating and aggravating circumstances which the trial judge decided to be appropriate in a particular case, the statutory scheme would be distorted.

Cooper v. State, 336 So.2d 1133, 1140 (Fla.1976) (emphasis added), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977).

In Lucas v. State, 490 So.2d 943 (Fla.1986), we held that there should be a complete new sentencing proceeding before a newly empaneled jury where the trial took place before this Court's decision in Songer v. State, 365 So.2d 696 (Fla.1978), cert. denied, 441 U.S. 956, 99 S.Ct. 2185, 60 L.Ed.2d 1060 (1979), which held that mitigating factors are not restricted to those listed in the statute. Our decision in Lucas was based upon a review of the record, which indicated that the trial judge instructed the jury only on the statutory mitigating circumstances. In reaching our conclusion, we noted that resentencing without the benefit of a new jury recommendation is not always error but that a new jury is required when the original jury recommendation is invalid. See Menendez v. State, 419 So.2d 312, 314 (Fla.1982) (new jury recommendation not required where no error at original sentencing trial with regard to evidence and instructions to jury); Mikenas v. State, 407 So.2d 892, 893 (Fla.1981), cert. denied, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982) (trial judge did not err in resentencing without further jury deliberations where evidence itself was not improper but only the manner in which it was considered by the court). But see Harvard (allowing the trial court discretion to empanel a new sentencing jury).

And in Valle v. State, 502 So.2d 1225 (Fla.1987), we held that a defendant is entitled to a new jury recommendation on resentencing subject to the harmless error rule:

The jury's recommended sentence is given great weight under our bifurcated death penalty system. It is the jury's task to weigh the aggravating and mitigating evidence in arriving at a recommended sentence. Where relevant mitigating evidence is excluded from this balancing process, the scale is more likely to tip in favor of a recommended sentence of death. Since the sentencer must comply with a stricter standard when imposing a death sentence over a jury recommendation of life, a defendant must be allowed to present all relevant mitigating evidence to the jury in his efforts to secure such a recommendation. Therefore, unless it is clear beyond a reasonable...