Shriner v. Wainwright, TCA 82-0832.

• Decision Date: 20 April 1982
• Docket Number: No. TCA 82-0832.,TCA 82-0832.
• Parties: Carl Elson SHRINER, Petitioner, v. Louie WAINWRIGHT, Secretary, Florida Department of Corrections, Respondent.
• Court: U.S. District Court — Northern District of Florida

570 F. Supp. 766

Carl Elson SHRINER, Petitioner, v. Louie WAINWRIGHT, Secretary, Florida Department of Corrections, Respondent.

No. TCA 82-0832.

United States District Court, N.D. Florida, Tallahassee Division.

April 20, 1982.

Daniel T. O'Connell, Gainesville, Fla., for petitioner.

Carolyn Snurkowski, Asst. Atty. Gen., Tallahassee, Fla., for respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING STAY OF EXECUTION

STAFFORD, Chief Judge.

History of the Case

Petitioner Carl Elson Shriner was convicted of first degree murder in the Circuit Court of Alachua County, Florida on April 14, 1977, with the jury unanimously recommending the death penalty. Sentencing proceedings were held before the state trial judge on April 29, 1977 at which time Shriner was sentenced to death. Shriner then appealed to the Florida Supreme Court, which affirmed his conviction and death sentence three years later, May 22, 1980. Shriner v. State, 386 So.2d 525 (Fla.1980). Shriner then petitioned the U.S. Supreme Court for certiorari, which was denied on January 12, 1981. Shriner v. State, 449 U.S. 1103, 101 S.Ct. 899, 66 L.Ed.2d 829 (1981). More than one year later clemency was denied by the appropriate Florida entity, and on March 22, 1982, the Governor of Florida signed the death warrant ordering Shriner's execution between April 16, 1982 and April 23, 1982. Execution has been scheduled for 7:00 a.m. tomorrow, April 21, 1982.

Petition for writ of habeas corpus (Document 2) along with an application for stay of execution (Document 1) were filed in this court on April 14, 1982, coincidentally five years to the day that Shriner was found guilty by a state court jury in Gainesville. Leave to proceed in forma pauperis was granted (Document 5). A hearing was held before me on April 16, 1982 where Shriner was represented by his attorney on appeal and the respondent by the staff of the Attorney General of Florida, who likewise had responsibility for representing the state's interest on appeal. No evidence was presented, and the only request for additional evidentiary consideration was Shriner's request and motion to make discovery concerning the receipt of non-record material by the Florida Supreme Court (Document 6). Response was filed in open court (Document 7) and extensive argument was had. All matters and issues were taken under advisement and are now dealt with in seriatim by this order.

A.

Petitioner claims that his post-arrest custodial statement was admitted at his state court trial in violation of the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution. As sub-issues, petitioner claims that his right to cut-off interrogation was disregarded by the authorities, that the statement was obtained through exploitation of his illegal arrest and that his statements were coerced and involuntary.

Under 28 U.S.C. § 2254(d) this court must presume correct those written findings of the Florida courts constituting determinations after hearings on the merits of factual issues unless it shall appear, among other statutory exceptions, that such factual determinations are not fairly supported by the record. In Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), after remand, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982), the United States Supreme Court noted

Of course, the federal courts are not necessarily bound by the state court's findings. Section 2254(d) permits a federal court to conclude, for example, that a state finding was "not fairly supported by the record." But the statute does require the federal courts to face up to any disagreement as to the facts and to defer to the state court unless one of the factors listed in 2254(d) is found. Although the distinction between law and fact is not easily drawn, we deal here with a statute that requires the federal courts to show a high measure of deference to the fact findings made by the state courts.

Id. at 597, 102 S.Ct. at 1307.

Circuit Judge Green held a pre-trial hearing on defense motions to suppress on February 3, 1977. Deputy Sheriff William Denson testified at the hearing that he received on October 23, 1976, a be-on-the-lookout (BOLO) bulletin from his department containing a composite sketch of a robbery suspect. He swore that on that date he noticed that a passenger in a nearby car bore a striking resemblance to the composite. Petitioner testified that Officer Denson, who stopped him, immediately showed him a copy of the composite drawing from the BOLO, indicating his belief that it resembled petitioner Shriner.

Petitioner gave conflicting testimony regarding whether he had asked for an attorney. Petitioner Shriner first stated that he had not told Gainesville Police Department Detective Sergeant Blitch and Assistant State Attorney Nilon that he wanted an attorney. Next he testified that he had. Finally, he declared that he didn't remember. See Supplemental Record on Appeal, partial transcript of hearing on February 3, 1977, at 100-101. Petitioner Shriner was uncertain whether he ever told Blitch and Nilon he was tired. He said he made his statement in confession to preclude any involvement of his girlfriend Carol Griffis. Petitioner further testified that he understood the meaning of Miranda warnings and had been given several the night of his interrogation. It is this court's view that the record supports the finding of the Florida Supreme Court that the arresting officer had probable cause to take petitioner Shriner into custody. Likewise, the record fairly supports the Court's finding that during custodial interrogation authorities respected petitioner's right to cut-off questioning on the subject to which he expressed a desire to end questioning, and in no way coerced a confession.

B.

Petitioner claims that the admission, over objection, of evidence that petitioner robbed the Eight Days Inn at approximately 3 A.M. on the same morning as the murder constitutes a denial of "fundamental fairness." See Bryson v. Alabama, 634 F.2d 862, 864-5 (5th Cir.1981). "A violation of state evidentiary rules will not in and of itself invoke Section 2254 habeas corpus relief. The violation must be of such a magnitude as to constitute a denial of `fundamental fairness.'" Id. at 864-5. The Florida Supreme Court reviewed the objection on this issue and concluded that the evidence was admissible under Florida law since relevant to identity. Mr. Fuller, the hotel clerk, identified petitioner as the robber who used a gun closely resembling the murder weapon within 90 minutes of the murder. This court agrees that there was no erroneous admission of prejudicial evidence. Furthermore, Shriner's own confession to the crime charged in this case provides overwhelming evidence of his guilt.

C.

Petitioner contends that his sentence violates the Eighth and Fourteenth Amendment requirements of individualized sentencing where the trial court limited consideration of relevant mitigating factors. Petitioner claims (1) that instructions given the jury limited its consideration of mitigating factors; (2) that the sentencing judge considered only the mitigating factors set forth in § 921.141(6), Florida Statutes; and (3) that the Florida Supreme Court limited its review of petitioner's sentence to the absence of only statutory mitigating circumstances.

The Eighth and Fourteenth Amendments require that the process of imposing the "profoundly different" penalty of death provide for individualized sentencing determinations:

We conclude that the Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.

Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978). Petitioner contends that the procedure in the present case operated in the same manner as the Ohio statute struck down by the United States Supreme Court in Lockett by precluding presentation and consideration of mitigating factors.

In Washington v. Watkins, 655 F.2d 1346 (5th Cir.1981) the Court found that a reasonable juror may have interpreted the jury instructions to limit his consideration of nonstatutory mitigating factors and to consider only those circumstances specifically enumerated by the judge in his charge. Likewise, Petitioner alleges that the charge in this case failed to apprise jurors of their duty to consider nonstatutory mitigating factors. Evidence relative to sentencing was presented immediately upon the jury's return with a verdict of guilty. The defendant sought a continuance to allow The Reverend Gene Parks to be present to testify to the horrors of electrocution. Judge Green denied the motion. The State of Florida offered as its only evidence an exhibit of a judgment and sentence of a conviction. The defendant's attorney stated, "Your Honor, at this time the defense will be producing no evidence in regard to mitigating facts to the jury." See Trial Transcript, at 872. The defendant personally addressed the jury and asked for no mercy, stating that they would do him a favor by recommending death. The Judge read his charge to the jury stating "The mitigating circumstances you may consider, established by the evidence, are as follows: ..." See Trial Transcript, at 900. Judge Green then read the list of mitigating circumstances from § 921.141(6), Florida Statutes. Defendant made no objection. All twelve jurors recommended death.

The State correctly notes that under Fla.R.Crim.P. 3.390(d)

No party may assign as error grounds of appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict ...

The record in this case is devoid of any objection with regard to the jury instruction, and this issue was not raised on appeal. Failure to make a...