Robinson v. Moore

• Decision Date: 31 August 2000
• Docket Number: No. SC95336.,SC95336.
• Citation: 773 So.2d 1
• Parties: Johnny L. ROBINSON, Petitioner, v. Michael W. MOORE, etc., Respondent.
• Court: Florida Supreme Court

773 So.2d 1

Johnny L. ROBINSON, Petitioner, v. Michael W. MOORE, etc., Respondent.

No. SC95336.

Supreme Court of Florida.

August 31, 2000.

Rehearing Denied December 8, 2000.

John W. Moser, Capital Collateral Regional Counsel, and James H. Walsh, Chief Assistant CCRC, Capital Collateral Regional Counsel—Middle Region, Tampa, Florida, for Petitioner.

Robert A. Butterworth, Attorney General, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, Florida, for Respondent.

PER CURIAM.

Johnny L. Robinson, a state prisoner under sentence of death, petitions this Court for a writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(9), Fla. Const. For the reasons stated below, we deny the petition for habeas relief, finding no merit in petitioner's claims that his conviction and sentence were illegally obtained.

PROCEDURAL BACKGROUND¹

Robinson was indicted for first-degree murder, kidnapping, armed robbery, and sexual battery. Robinson pled not guilty and was tried and found guilty of all the charges. The jury recommended a sentence of death by a nine-to-three vote. Upon finding seven aggravating circumstances, the trial court sentenced Robinson to death.

We affirmed Robinson's conviction on direct appeal, but vacated his sentences. See Robinson v. State, 520 So.2d 1, 5 (Fla. 1988). The noncapital sentences were vacated because of an improper guideline departure. The death sentence was remanded for a new penalty phase because the State impermissibly argued a nonstatutory aggravating factor, and because the State improperly raised an issue of racial bias at the penalty phase of the trial. See id.

In the new penalty phase, the jury recommended a death sentence by a vote of eight to four. The trial court, upon finding six aggravating circumstances, sentenced Robinson to death on the capital offense and imposed concurrent life sentences on the noncapital offenses. We affirmed the sentences. See Robinson v. State, 574 So.2d 108 (Fla.1991),cert. denied, 502 U.S. 841, 112 S.Ct. 131, 116 L.Ed.2d 99 (1991). The facts as described in our review reflect:

The resentencing jury heard evidence showing that Beverly St. George left her Plant City home, bound for Quantico, Virginia, on the morning of August 11, 1985. Her car broke down enroute. Police discovered her partially clothed body the next morning in a cemetery located in St. Johns County, with two gunshot wounds to her head. Robinson and Clinton Bernard Fields, seventeen, were arrested for the murder.

Robinson gave a statement to the police explaining that he and Fields came upon St. George's car while traveling to Orlando on I-95 and pulled over to render aid. She accompanied them to the cemetery, where Robinson alleged she engaged in consensual sexual activity on the hood of his car. Robinson claimed that the gun, which he had removed from his belt and placed on the hood, went off accidently, shooting her in the face. Robinson then shot her again, stating: "How do you tell someone I accidently shot a white woman?"

Fields testified against Robinson at the guilt phase of the first proceedings and completely contradicted Robinson's version of the crimes. He refused to testify at the resentencing hearing and the court allowed his redacted testimony to be read to the jury. That testimony indicated that Robinson pulled in behind St. George's parked car and ordered her into his car at gunpoint, where he handcuffed her. He drove to the cemetery, where he sexually assaulted her on the hood of his car. He then ordered Fields to do the same, and Fields complied. Afterward, Robinson expressed concern that she could identify them. He then walked up to her and put the gun to her cheek. Fields heard a shot, saw St. George fall, and watched Robinson stand over her and fire a second shot.

The State played a video tape of the crime scene and described the evidence recovered there, including a .22-caliber long rifle shell casing and a black purse strap.

The defense presented the testimony of Dr. Harry Krop, a clinical psychologist. Dr. Krop found significance in Robinson's background and upbringing. He testified that Robinson's childhood was marked by constant physical abuse. He was subjected to beatings with a leather belt, with a switch while his hands were tied, and to beatings while forced to squat with a broom handle between his legs for indefinite periods. Robinson also was sexually abused at the age of seven by his uncle, by the fifteen-year-old wife of his grandfather, and at migrant labor camps between the ages of twelve and fourteen.

Dr. Krop testified that Robinson's background produced an antisocial personality disorder and a psychosexual disorder. He indicated that both disorders were treatable. The doctor testified that he believed seven nonstatutory mitigating circumstances existed, including Robinson's use of alcohol on the night of the offenses.

Robinson, 574 So.2d at 109-10.

Robinson subsequently filed a rule 3.850 motion for postconviction relief and we affirmed the trial court's denial of his rule 3.850 motion. See Robinson v. State, 707 So.2d 688 (Fla.1998). He now files this habeas corpus petition, challenging the legality of his conviction and death sentence.

In his petition, Robinson contends: (1) that appellate counsel's failure to raise on direct appeal the impropriety of the State's injection of racial prejudice constitutes ineffective assistance of counsel; (2) that appellate counsel was ineffective for not raising on direct appeal that race discrimination permeates the justice system in St. Johns County to the extent of preventing Robinson, a black defendant, from getting a fair trial and sentence; (3) that appellate counsel was ineffective for not raising on direct appeal the State's violation of Brady /Giglio;² (4) that the prosecutor's improper closing argument at the penalty phase rendered the death sentence unreliable and appellate counsel was ineffective for not raising this claim on direct appeal; (5) that the trial court's and the prosecutor's assertion that sympathy and mercy were improper considerations for the jury deprived Robinson of a reliable and individualized sentencing determination; and (6) that the jury weighed invalid and unconstitutionally vague aggravating circumstances.³

ANALYSIS

We first address Robinson's claims as to the ineffective assistance of appellate counsel. In ascertaining the merit of a habeas petition based on a challenge of ineffective assistance of appellate counsel, it is appropriate to determine:

[F]irst, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Teffeteller v. Dugger, 734 So.2d 1009, 1027 (Fla.1999) (quoting Suarez v. Dugger, 527 So.2d 190, 192-93 (Fla.1988)). Under this analysis, appellate counsel will not be deemed ineffective for failing to raise issues not preserved for appeal. See Medina v. Dugger, 586 So.2d 317, 318 (Fla. 1991).

However, an exception may be made where appellate counsel fails to raise a claim which, although not preserved at trial, presents a fundamental error. See Roberts v. State, 568 So.2d 1255, 1261 (Fla. 1990). A fundamental error is defined as an error that "reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Kilgore v. State, 688 So.2d 895, 898 (Fla.1997) (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)).

Robinson asserts that the following colloquy between the State and its witness demonstrates fundamental error in that the prosecutor deliberately injected racial prejudice in the trial:

[State]: Now are you sure that Mr. Robinson used those exact words about shooting the `white bitch'?

[witness]: Yes, yes.

No objection was raised by Robinson's trial counsel to this colloquy. However, Robinson now claims that even without an objection this brief exchange rendered the entire proceedings fundamentally unfair. We disagree.

Initially, we observe that while it was the prosecutor who asked the question, it was actually the witness who asserted that the word "white" was used by the defendant. This was the factual testimony of the witness as to what was said by the defendant. Further, this was not the only time that the victim was referred to as "white" without objection. As noted in the statement of the facts, Robinson himself was directly quoted as being concerned that he had assaulted a white woman. In addition, it does not appear that this testimony played a critical role in the State's case against Robinson. To the contrary, the record reflects that the evidence of guilt, which included a confession by Robinson and the testimony of an eyewitness to the murder, was overwhelming. Hence, we conclude that the mere use of this wording in a question by the prosecution does not rise to the level of fundamental error. See Kilgore, 688 So.2d at 898. Accordingly, consistent with the standard enunciated in Teffeteller, we conclude appellate counsel's decision not to raise this issue as a fundamental error fell within the bounds of professionally acceptable performance and does not "undermine confidence in the correctness of the result." 734 So.2d at 1027. We therefore find this claim without merit.

Robinson next asserts that appellate counsel rendered ineffective assistance when he failed to argue on appeal that race discrimination so permeates the justice system in St. Johns County that Robinson, a black defendant, could not get a fair trial and sentence. We note that specific issues relating to the racial makeup of the grand jury, the venire, and resentencing jury were addressed in the postconviction proceedings and the appeal of the denial of...