Roberts v. State

• Decision Date: 06 September 1990
• Docket Number: 74788,Nos. 74920,s. 74920
• Citation: 568 So.2d 1255
• Parties: 15 Fla. L. Weekly S450 Rickey Bernard ROBERTS, Appellant, v. STATE of Florida, Appellee. Rickey Bernard ROBERTS, Petitioner, v. Richard L. DUGGER, Respondent.
• Court: Florida Supreme Court

Page 1255

568 So.2d 1255

15 Fla. L. Weekly S450

Rickey Bernard ROBERTS, Appellant, v. STATE of Florida, Appellee.

Rickey Bernard ROBERTS, Petitioner, v. Richard L. DUGGER, Respondent.

Nos. 74920, 74788.

Supreme Court of Florida.

Sept. 6, 1990.

Rehearing Denied Nov. 27, 1990.

Larry Helm Spalding, Capital Collateral Representative, Martin J. McClain, Asst. CCR., and Linda Feldman and Tom Dunn, Staff Attys., Office of the Capital Collateral Representative, Tallahassee, for appellant/petitioner.

Robert A. Butterworth, Atty. Gen., and Ralph Barreira, Asst. Atty. Gen., Miami, for appellee/respondent.

PER CURIAM.

Rickey Bernard Roberts, a prisoner under sentence of death, appeals the trial court's denial of his motion to vacate conviction and sentence made pursuant to Florida Rule of Criminal Procedure 3.850, and petitions this Court for a writ of habeas corpus. We have jurisdiction, pursuant to article V, sections 3(b)(1) and (9), Florida Constitution, and deny all relief.

Roberts was convicted of first-degree murder, armed sexual battery and armed kidnapping. In accordance with the jury's recommendation, the trial court imposed the death penalty, finding four aggravating circumstances and no mitigating circumstances. Both the convictions and sentences were affirmed by this Court on direct appeal. Roberts v. State, 510 So.2d 885 (Fla.1987), cert. denied, 485 U.S. 943, 108 S.Ct. 1123, 99 L.Ed.2d 284 (1988). A death warrant was signed, with execution scheduled for October 31, 1989. Roberts petitioned this Court for a writ of habeas corpus and requested a stay of execution. Roberts also filed a rule 3.850 motion to vacate conviction and sentence which was summarily denied by the trial court on October 25, 1989. We granted a stay of execution pending our consideration of Roberts' appeal of that denial and review of his petition.

RULE 3.850 MOTION

Where, as here, the trial court denies a motion for postconviction relief without conducting an evidentiary hearing, the motion and the record must conclusively demonstrate that the defendant is entitled to no relief. Kennedy v. State, 547 So.2d 912, 913 (Fla.1989). Applying this standard, we affirm the denial of Roberts' rule 3.850 motion.

Roberts raised the following claims in his rule 3.850 motion: I) application of Florida Rule of Criminal Procedure 3.851 violates his due process and equal protection rights by shortening the time allotted under rule 3.850 in which to file a motion for postconviction relief; II) the prosecutor peremptorily excused black prospective jurors in violation of Batson v. Kentucky, 476 U.S. 79 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and State v. Slappy, 522 So.2d 18 (Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988); III) the jury's sense of responsibility for sentencing was diminished contrary to Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); IV) his rights to present a defense and to confront witnesses were denied when he was prohibited from cross-examining Michelle Rimondi about alleged prostitution, contrary to Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1989); V) his rights to present a defense and to testify were violated when Florida's rape-shield law was applied to limit his testimony, contrary to Olden and Rock v. Arkansas, 107 S.Ct. 2704, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); VI) the state's repeated reference to him by an alias deprived him of his right to be presumed innocent; VII) his confrontation rights were violated when he was denied access to the rape-treatment counselor who treated Rimondi, contrary to Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987); VIII) his rights were violated when cross-examination into crimes committed by state's witnesses was limited; IX) trial counsel was ineffective during the guilt phase of the trial; X) he was denied effective assistance of counsel when his first attorney withdrew because of purported conflict of interest; XI) he was deprived of an adequate mental health evaluation at the penalty phase because trial counsel failed to provide experts with adequate background information; XII) counsel was ineffective during the penalty phase for failing to investigate and present mitigating evidence; XIII) the state's closing arguments in the guilt and penalty phases denied him of fair and reliable capital sentencing; XIV) the state withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); XV) his sentencing jury was improperly instructed on the "especially heinous, atrocious, or cruel" aggravating circumstance, in violation of Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), and Rhodes v. State, 547 So.2d 1201 (Fla.1989); XVI) the penalty phase instructions shifted the burden to the defendant to prove that death was inappropriate and the judge employed this standard, contrary to Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.1988); XVII) the state improperly told the jury that sympathy towards the defendant was an improper consideration, contrary to Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), and Parks v. Brown, 860 F.2d 1545 (10th Cir.1988), rev'd sub nom., Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990); XVIII) his death sentence is predicated upon the finding of an automatic aggravating circumstance, in violation of Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988); XIX) the aggravating factor of "under sentence of imprisonment" was given undue weight by the jury and judge, contrary to Songer v. State, 544 So.2d 1010 (Fla.1989); XX) the jury was allowed to consider victim-impact evidence in violation of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989); XXI) his sentence of death was based upon an unconstitutionally obtained prior conviction; XXII) the trial court improperly refused to find mitigating circumstances which were clearly set out in the record; XXIII) nonstatutory aggravating factors were improperly introduced during the sentencing phase; and XXIV) the trial court improperly limited the testimony of the defense's mental health expert.

Roberts' first claim that application of Florida Rule of Criminal Procedure 3.851 violates his due process and equal protection rights by shortening the time allotted under rule 3.850 in which to file a motion for post-conviction relief has been rejected by this Court. Cave v. State, 529 So.2d 293 (Fla.1988). Of the remaining twenty-three claims raised, eighteen are procedurally barred. Claim V and the portion of claim XXII dealing with statutory mitigating factors are procedurally barred because they were raised and rejected on direct appeal. Roberts, 510 So.2d at 892, 894. Claims II, III, IV, VI, VII, VIII, X, XIII XV, XVI, XVII, XVIII, XIX, XX, XXI, XXIII, XXIV, and the remainder of claim XXII are barred because they could have been raised on direct appeal. None of the decisions relied upon in connection with these claims is such a change in the law as to preclude a procedural bar under Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). Of those claims, only claims II, IV, V, XV, and XVII merit further discussion.

As his second claim Roberts argues that the trial court employed an improper standard in ruling on defense counsel's Neil ¹ objection to the state's excusal of two black prospective jurors. This Neil issue was not raised on appeal and Batson and Slappy are not fundamental changes in the law which would allow collateral consideration of the issue. See State v. Safford, 484 So.2d 1244 (Fla.1986) (Neil not to be retroactively applied to cases where appellate process was completed when Neil became effective). In Slappy, we reaffirmed Neil, noting that the guarantees adopted in Neil exceed those adopted in Batson. Slappy, 522 So.2d at 21.

In connection with claims IV and V, we rejected Robert's challenge to application of Florida's rape-shield law on direct appeal, specifically recognizing that if application of this law "interfered with Robert's confrontation rights or otherwise operated to preclude Roberts from presenting a full and fair defense, the statute would have to give way to these constitutional rights. See Chambers v. Mississippi, 410 U.S. 284 [93 S.Ct. 1038, 35 L.Ed.2d 297] (1973)." Roberts, 510 So.2d at 892. While claim IV that Roberts' direct-examination testimony was improperly restricted was raised employing a slightly different argument, claim V dealing with the restriction of cross-examination of Rimondi was not raised. See Roberts, 510 So.2d at 892. Roberts urges that these claims should now be considered in light of the United States Supreme Court's recent decision in Olden.

Olden, a black man, was charged with kidnapping, rape, and forcible sodomy of a white woman. During Olden's trial, he was precluded, under Kentucky's rape-shield law, from cross-examining the victim regarding her cohabitation with her black boyfriend. Because this evidence was relevant to Olden's claim that he and the victim had engaged in consensual sexual acts and that out of fear of jeopardizing her relationship with her boyfriend, she claimed she had been raped, the United States Supreme Court held that Olden's sixth amendment confrontation rights were violated. Olden is not a fundamental change in the law requiring retroactive application under this Court's decision in Witt. Olden is simply an application of the long-established and well-recognized principle of law which we applied in rejecting Roberts' original claim on appeal. Likewise, Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), which Roberts relies on in claim V, is not a fundamental change in the law. In Rock, the United Supreme Court...