Rutherford v. State

• Decision Date: 17 December 1998
• Docket Number: No. 89142.,89142.
• Citation: 727 So.2d 216
• Parties: Arthur Dennis RUTHERFORD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

727 So.2d 216

Arthur Dennis RUTHERFORD, Appellant, v. STATE of Florida, Appellee.

No. 89142.

Supreme Court of Florida.

December 17, 1998.

Rehearing Denied March 2, 1999.

Gregory C. Smith, Capital Collateral Counsel, and Andrew Thomas, Chief Assistant CCC—Northern Region, Office of the Capital Collateral Counsel, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General, and Barbara J. Yates, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Arthur Dennis Rutherford, an inmate under sentence of death, appeals the trial court's denial of relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1),(7), Fla. Const. For the reasons expressed below, we affirm.

I. PROCEDURAL STATUS

Rutherford, age 36 at the time of the crime, was charged with the 1985 murder and armed robbery of Stella Salamon. A jury found Rutherford guilty as charged and recommended death by a vote of eight to four; however, due to a discovery violation by the State, the trial court declared a mistrial.

On retrial, Rutherford was represented by John Jay Gontarek and William Treacy. Both Gontarek and Treacy (hereinafter both separately and collectively referred to as "trial counsel") were assistant public defenders, and neither represented Rutherford in his first trial.

The guilt-phase evidence at retrial included the fact that the victim's body was found in her bathtub, and that Rutherford's fingerprints and a palm print were found in the victim's bathroom. As detailed in the opinion on direct appeal:

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 wit-nesses 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.

Rutherford v. State, 545 So.2d 853, 854-55 (Fla.1989).

The jury found Rutherford guilty as charged. At the penalty phase, in addition to other evidence, the State presented the testimony of two witnesses that, 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. Trial counsel did not object to this hearsay testimony.

In mitigation, trial 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.

The jury recommended death by a vote of seven to five. The trial court imposed the death penalty, finding three aggravating factors: that the murder was heinous, atrocious or cruel ("HAC"); cold, calculated and premeditated ("CCP"); and committed during the course of a robbery/for pecuniary gain (merged). The trial court found only one statutory mitigator: that Rutherford had no significant history of criminal activity. The trial court considered, but did not find, any nonstatutory mitigating circumstances.

In his subsequent rule 3.850 motion, Rutherford challenged the lawfulness of his conviction and death sentence on a number of grounds.¹ In an initial order, the trial court summarily denied as procedurally barred all but four grounds involving ineffective assistance of counsel ("IAC"): IAC in the guilt phase for failing to investigate, prepare, and perform sufficiently; IAC in the penalty phase for failing to object to the hearsay testimony regarding the victim's fear of Rutherford; IAC in the penalty phase for failing to obtain a mental health expert for mitigation purposes; and IAC in the penalty phase for failing to investigate, prepare, and present substantial available mitigation. After an evidentiary hearing, the trial court denied relief on these IAC claims as well, detailing its analysis of the facts and applicable law in a twenty-nine-page order.

II. APPEAL

Rutherford now appeals, raising six issues: (1) whether trial counsel was ineffective for failing to object to the penalty-phase hearsay testimony of witnesses regarding the victim's fear of Rutherford; (2) whether trial counsel was ineffective for failing to procure and present expert mental health testimony in mitigation at the penalty phase; (3) whether trial counsel was ineffective in the penalty phase for failing to investigate, develop, and present substantial mitigating evidence regarding Rutherford's harsh childhood and Vietnam war experience; (4) whether the trial court erred in its initial order by summarily denying Rutherford's double jeopardy claim as procedurally barred; (5) whether trial counsel was ineffective in the guilt phase for failing to investigate, prepare, and perform sufficiently; and (6) whether the trial court erred in its initial order by summarily denying several of Rutherford's other claims as procedurally barred. We find issues four and six to be procedurally barred.² As to the remaining issues that involve counsel's guilt-phase and penalty-phase performance, our review reveals no basis for reversing the trial court.

III. Strickland Analysis

In Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court recognized that the purpose of the constitutional requirement of effective assistance of counsel is "to ensure a fair trial." Applying this purpose "as the guide" in ineffective assistance of counsel cases, the Supreme Court elaborated that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id.

The Court set forth a two-prong test for evaluating claims of ineffective assistance:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687, 104 S.Ct. 2052 (emphasis supplied).

In elaborating on the showing required to satisfy the second prong, the Court explained:

It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. Respondent suggests requiring a showing that the errors "impaired the presentation of the defense." That standard, however, provides no workable principle. Since any error, if it is indeed an error, "impairs" the presentation of the defense, the proposed standard is inadequate because it provides no way of deciding what impairments are sufficiently serious to warrant setting aside the outcome of the proceeding.

On the other hand, we believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case. This outcome-determinative standard has several strengths. It defines the relevant inquiry in a way familiar to courts, though the inquiry, as is inevitable, is anything but precise. The standard also reflects the profound importance of finality in criminal proceedings. Moreover, it comports with the widely used standard for assessing motions for new trial based on newly discovered evidence. Nevertheless, the standard is not quite appropriate.

Even when the specified attorney error results in the omission of certain evidence, the newly discovered evidence standard is not an apt source from which to draw a prejudice standard for ineffectiveness claims. The high standard for newly discovered evidence claims presupposes that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged. An ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice

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