Rutherford v. Moore, No. SC99-150.

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM.
Citation774 So.2d 637
Decision Date12 October 2000
Docket NumberNo. SC99-150.
PartiesArthur Dennis RUTHERFORD, Petitioner, v. Michael W. MOORE, Respondent.

774 So.2d 637

Arthur Dennis RUTHERFORD, Petitioner,
v.
Michael W. MOORE, Respondent

No. SC99-150.

Supreme Court of Florida.

October 12, 2000.

Rehearing Denied December 21, 2000.


774 So.2d 641
Gregory C. Smith, Capital Collateral Counsel, C. Andrew Thomas, Chief Assistant, Capital Collateral Counsel and Linda McDermott, Assistant Capital Collateral Counsel, Northern Region, Tallahassee, Florida, for Petitioner

Robert A. Butterworth, Attorney General, Richard B. Martell, Chief, Capital Appeals and Barbara J. Yates, Assistant Attorney General, Tallahassee, Florida, for Respondent.

PER CURIAM.

Arthur Dennis Rutherford, a prisoner under sentence of death, petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. For the reasons that follow, we deny habeas relief.

BACKGROUND

Rutherford was convicted and sentenced to death for the 1985 murder and armed robbery of sixty-three-year-old Stella Salamon, whose body was found in the bathtub of her home. After the first jury convicted Rutherford and recommended a sentence of death by a vote of eight to four, the trial court declared a mistrial due to a discovery violation by the State. We have previously summarized the evidence presented during the retrial as follows:

The medical examiner testified that Mrs. Salamon's left arm was broken at the elbow and the upper part of the arm was bruised, that there were bruises on her face and cuts on her lip, and that there were three severe wounds on her head. Two of these injuries were consistent with having been made by a blunt instrument or by her head being struck against a flat surface; another was a puncture wound; and all were associated with skull fracture. Cause of death was by drowning or asphyxiation, evidence of both being present.
Two women testified that Rutherford had asked them to help him cash a $2,000 check, on which he had forged Mrs. Salamon's signature. Two other witnesses testified that before Mrs. Salamon's death Rutherford had told them that he planned to get some money from a woman by forcing her to write him a check. He said he would then kill her by hitting her in the head and drowning her in the bathtub to make her death look accidental. One witness quoted him as saying, "I can't do the time, but I'm damn sure gonna do the crime." Another witness testified that on the day of the murder Rutherford indicated he might kill Mrs. Salamon, and yet another witness said Rutherford told him later that day that he had killed "the old lady" by hitting her in the head with a hammer, and then had put her in the bathtub. Law enforcement officers testified that Rutherford's fingerprints and palm prints were found in the bathroom of Mrs. Salamon's home.

Rutherford v. State, 545 So.2d 853, 854-55 (Fla.), cert. denied, 493 U.S. 945, 110 S.Ct. 353, 107 L.Ed.2d 341 (1989) (Rutherford I).

The jury found Rutherford guilty as charged. During the penalty phase, the State presented additional evidence including "the testimony of two witnesses that,

774 So.2d 642
on the day before her murder, the victim told them that she was fearful of Rutherford and wished he would stop coming by her house." Rutherford v. State, 727 So.2d 216, 217-18 (Fla.1998) (Rutherford II). In mitigation, defense counsel
presented lay character testimony from Rutherford's family and a friend regarding his positive character traits such as being a good father, a hard worker, loyal, respectful, nonviolent, honest and generous. Testimony was also presented regarding Rutherford's meager upbringing, and the fact that his involvement in Vietnam had changed him in that he had become jittery and nervous, had nightmares, and experienced night sweats. Rutherford testified on his own behalf in the penalty phase that he did not commit the murder in question. He also testified regarding his military service, including his horrifying experiences in Vietnam and his numerous military commendations.

Id. at 218.

The jury recommended a sentence of death by a vote of seven to five. See Rutherford I, 545 So.2d at 855. The judge imposed the death penalty, finding three aggravating circumstances to be applicable: (1) the murder was especially heinous, atrocious, and cruel (HAC); (2) the murder was cold, calculated, and premeditated (CCP); and (3) Rutherford committed the murder during the course of a robbery and committed the murder for pecuniary gain (merged). See id. In mitigation, the court found only that Rutherford had no significant history of criminal activity. See id.

On appeal, this Court affirmed Rutherford's convictions and sentences.1 See id. at 857. Rutherford then filed a motion for postconviction relief in the trial court pursuant to Florida Rule of Criminal Procedure 3.850, challenging his conviction and death sentence on fifteen grounds.2 The trial court summarily denied all of Rutherford's claims except those alleging ineffectiveness of trial counsel. See Rutherford II, 727 So.2d at 218. After holding an evidentiary hearing on his ineffectiveness claims, the trial court also denied relief on these claims. See id. This Court affirmed

774 So.2d 643
the denial of postconviction relief.3

In the present habeas petition, Rutherford raises eleven claims of ineffectiveness of appellate counsel.

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

Habeas petitions are the proper vehicle to advance claims of ineffective assistance of appellate counsel. See Thompson v. State, 759 So.2d 650, 660 (Fla.2000); Teffeteller v. Dugger, 734 So.2d 1009, 1026 (Fla.1999). However, claims of ineffective assistance of appellate counsel may not be used to camouflage issues that should have been raised on direct appeal or in a postconviction motion. See, e.g., Thompson, 759 So.2d at 657 n. 6; Hardwick v. Dugger, 648 So.2d 100, 106 (Fla.1994); Breedlove v. Singletary, 595 So.2d 8, 10 (Fla. 1992).

When analyzing the merits of the claim, "[t]he criteria for proving ineffective assistance of appellate counsel parallel the Strickland[4] standard for ineffective trial counsel." Wilson v. Wainwright, 474 So.2d 1162, 1163 (Fla.1985). Thus, this Court's ability to grant habeas relief on the basis of appellate counsel's ineffectiveness is limited to those situations where the petitioner establishes first, that appellate counsel's performance was deficient because "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, that the petitioner was prejudiced because appellate counsel's deficiency "compromised the appellate process to such a degree as to undermine confidence in the correctness of the result." Thompson, 759 So.2d at 660 (emphasis supplied) (quoting Groover v. Singletary, 656 So.2d 424, 425 (Fla. 1995)); see, e.g., Teffeteller, 734 So.2d at 1027. If a legal issue "would in all probability have been found to be without merit" had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel's performance ineffective. Williamson v. Dugger, 651 So.2d 84, 86 (Fla.1994); see, e.g., Kokal v. Dugger, 718 So.2d 138, 142 (Fla.1998); Groover, 656 So.2d at 425. This is generally true as to issues that would have been found to be procedurally barred had they been raised on direct appeal. See, e.g., Groover, 656 So.2d at 425; Medina v. Dugger, 586 So.2d 317, 318 (Fla.1991).

With these principles in mind, we turn to Rutherford's claims that his appellate counsel was constitutionally ineffective. In his first, ninth, and tenth claims, Rutherford asserts that counsel was ineffective for failing to raise on appeal the denial of numerous pretrial motions and the use of various jury instructions. However, counsel was not ineffective for failing to raise on appeal the denial of the pretrial motions because many of the underlying substantive claims are without merit. For example, the Court has previously rejected claims that electrocution is cruel and unusual punishment,5 challenges to the constitutionality of section 921.141, Florida

774 So.2d 644
Statutes (1999),6 and claims that section 782.04(1), Florida Statutes (1999), the felony-murder statute, is unconstitutional.7 Likewise, Rutherford's claims regarding the trial court's failure to properly instruct the jury are without merit. This Court has previously rejected similar claims that the standard jury instructions improperly shift the burden to the defendant to prove that death is inappropriate,8 that the trial court should have instructed the jury not to consider nonstatutory aggravating circumstances,9 and that the trial court should have instructed the jury to merge its consideration of the aggravating circumstances that the murder was committed during the course of a robbery and committed for pecuniary gain.10 The failure to raise meritless claims does not render appellate counsel's performance ineffective. See, e.g., Kokal, 718 So.2d at 142; Williamson, 651 So.2d at 86; Groover, 656 So.2d at 425

Rutherford also claims that appellate counsel should have raised the trial court's failure to give the jury instructions that: (1) the death penalty is only intended for the most aggravated and least mitigated of crimes; and (2) jurors should not use a counting process in determining whether aggravating circumstances outweigh the mitigating circumstances. However, Rutherford cites no cases establishing that the failure to give these instructions constitutes reversible error, and we find that Rutherford has established neither deficiency nor prejudice with regard to the failure to raise these issues on appeal.

In addition, Rutherford asserts that appellate counsel was ineffective for failing to argue on appeal that the jury instructions for the HAC and CCP aggravating circumstances were unconstitutionally vague. Trial counsel objected to the applicability of the HAC...

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  • Harmon v. Sec'y, Case No. 3:12-cv-772-J-34JBT
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 13, 2015
    ...outside the range of professionally acceptable performance." See State v. Lewis, 838 So.2d 1102 (Fla. 2002) citing Rutherford v. Moore, 774 So.2d 637 (Fla. 2000), particularly in light of his admissions regarding this issue. The Lewis Court also stated that the defendant in that case "did n......
  • Boyd v. Inch, CASE NO. 16-62555-CIV-GAYLES
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • July 10, 2019
    ...of this particular incident. Accordingly, we deny this claim as meritless. See Schoenwetter, 46 So.3d at 563; Rutherford v. Moore, 774 So.2d 637, 644 (Fla.2000) ("The failure to raise meritless claims does not render appellate counsel's performance ineffective.").Id. at 708. Here, the opini......
  • Meizlik v. Sec'y, Fla. Dep't of Corr., Case No. 3:17-cv-1064-J-34MCR
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 7, 2020
    ...claims generally are notPage 17 cognizable on direct appeal when the issue was not raised before the trial court. Rutherford v. Moore, 774 So. 2d 637, 647-48 (Fla. 2000). Only in the rare circumstance where the ineffectiveness is apparent on the face of the record such that it would be a wa......
  • Lugo v. Sec'y, Nos. 11–13439
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 24, 2014
    ...but not for raising claims that should have been brought on direct appeal or in a postconviction motion. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). 6. On March 8, 2010, the State filed a notice of conventional filing of the state court record, which consisted of 167 volumes of ......
  • Request a trial to view additional results
290 cases
  • Harmon v. Sec'y, Case No. 3:12-cv-772-J-34JBT
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 13, 2015
    ...outside the range of professionally acceptable performance." See State v. Lewis, 838 So.2d 1102 (Fla. 2002) citing Rutherford v. Moore, 774 So.2d 637 (Fla. 2000), particularly in light of his admissions regarding this issue. The Lewis Court also stated that the defendant in that case "did n......
  • Boyd v. Inch, CASE NO. 16-62555-CIV-GAYLES
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • July 10, 2019
    ...of this particular incident. Accordingly, we deny this claim as meritless. See Schoenwetter, 46 So.3d at 563; Rutherford v. Moore, 774 So.2d 637, 644 (Fla.2000) ("The failure to raise meritless claims does not render appellate counsel's performance ineffective.").Id. at 708. Here, the opini......
  • Meizlik v. Sec'y, Fla. Dep't of Corr., Case No. 3:17-cv-1064-J-34MCR
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 7, 2020
    ...claims generally are notPage 17 cognizable on direct appeal when the issue was not raised before the trial court. Rutherford v. Moore, 774 So. 2d 637, 647-48 (Fla. 2000). Only in the rare circumstance where the ineffectiveness is apparent on the face of the record such that it would be a wa......
  • Lugo v. Sec'y, Nos. 11–13439
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 24, 2014
    ...but not for raising claims that should have been brought on direct appeal or in a postconviction motion. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000). 6. On March 8, 2010, the State filed a notice of conventional filing of the state court record, which consisted of 167 volumes of ......
  • Request a trial to view additional results

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