Rutherford v. Moore
Decision Date | 12 October 2000 |
Docket Number | No. SC99-150.,SC99-150. |
Citation | 774 So.2d 637 |
Parties | Arthur Dennis RUTHERFORD, Petitioner, v. Michael W. MOORE, Respondent. |
Court | Florida Supreme Court |
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.
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.
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:
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 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.1See 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 the denial of postconviction relief.3
In the present habeas petition, Rutherford raises eleven claims of ineffectiveness 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 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 instruction, but did not specifically object on the basis that the...
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