Smith v. Dugger

• Decision Date: 08 June 1990
• Docket Number: No. TCA 90-40035-WS.,TCA 90-40035-WS.
• Citation: Smith v. Dugger, 758 F.Supp. 688 (N.D. Fla. 1990)
• Parties: Frank SMITH, Petitioner, v. Richard L. DUGGER, et al., Respondents.
• Court: U.S. District Court — Northern District of Florida

758 F. Supp. 688

Frank SMITH, Petitioner, v. Richard L. DUGGER, et al., Respondents.

No. TCA 90-40035-WS.

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

June 8, 1990.

Billy H. Nolas, Capital Collateral Representative, Tallahassee, Fla., for petitioner.

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

ORDER

STAFFORD, Chief Judge.

This cause is before the court upon Frank Smith's second petition for writ of habeas corpus (document 1). Due to the important constitutional matters here presented, I feel obliged to set forth in detail my analysis for the benefit of those charged with the inevitable review of my decision in the federal appellate process.

I. BACKGROUND

A. Facts

The facts leading to Smith's conviction are well documented in the voluminous record of this brutal murder case. Briefly, on the evening of December 12, 1978, Smith, along with two accomplices, Johnny Copeland and Victor Hall, robbed a convenience store in Wakulla County, Florida. They then abducted the store clerk, Sheila Porter, and took her to a motel where they each committed sexual battery upon her. Victor Hall testified that the three men later drove Ms. Porter to a wooded area. There, Hall waited in the car while Smith and Copeland took her into the woods. Hall testified that he heard three gunshots, after which Copeland and Smith returned to the car alone. Sheila Porter's body was found two days later with three bullet wounds in the back of her head.

B. Procedural History

Found guilty of robbery, kidnapping, sexual battery, and first-degree murder, Smith was sentenced to death in accordance with the jury's recommendation. The sentencing judge found and weighed the following six aggravating factors —

(1) That the defendant had two prior convictions for violent felonies (robberies).

(2) That the murder was committed in the course of an enumerated felony (kidnapping).

(3) That the murder was committed to avoid arrest.

(4) That the murder was committed for pecuniary gain.

(5) That the murder was heinous, atrocious and cruel.

(6) That the murder was cold, calculated and premeditated —

against only one mitigating factor — that Smith was nineteen (19) years of age when the crime was committed.

Smith appealed his conviction and death sentence to the Florida Supreme Court. Finding no reversible error, the state supreme court affirmed Smith's convictions and death sentence, and certiorari review was subsequently denied. Smith v. State, 424 So.2d 726 (Fla.1982), cert. denied, 462 U.S. 1145, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983).

The Governor of Florida denied Smith clemency and signed a warrant scheduling his execution. Smith then filed motions in the state trial court seeking a stay of execution and post-conviction relief pursuant to Fla.R.Crim.P. 3.850. The trial court refused to grant a stay and denied Smith's 3.850 motion. The Florida Supreme Court affirmed the denial of post-conviction relief and further denied Smith's original petition for a writ of habeas corpus raising the single issue of ineffective assistance of appellate counsel. Smith v. State, 457 So.2d 1380 (Fla.1984).

On October 13, 1984, Smith filed a petition for writ of habeas corpus in this court. Having stayed Smith's execution to permit time for consideration of his petition, this court held that the first ten of Smith's eighteen claims were procedurally barred. The remaining eight claims were denied on the merits without further evidentiary proceedings.

Raising six issues, Smith appealed to the Eleventh Circuit Court of Appeals. The Eleventh Circuit affirmed this court's decision after finding no violation of Smith's constitutional rights. Smith v. Dugger, 840 F.2d 787 (11th Cir.1988). Smith thereafter filed a petition for rehearing in which he raised, inter alia, a claim under Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). Hitchcock was decided by the United States Supreme Court after this court's decision and while Smith's case was on appeal in the Eleventh Circuit. Rehearing was subsequently denied but without prejudice to Smith's presenting his unexhausted Hitchcock claim to the Florida state courts. Smith v. Dugger, 888 F.2d 94 (11th Cir.1989). The Eleventh Circuit made clear that Smith's unexhausted Hitchcock claim was not foreclosed from federal review in a subsequent action, after exhaustion. Smith filed a timely petition for certiorari which is currently pending in the U.S. Supreme Court.

On July 31, 1989, Smith filed a second Rule 3.850 motion in state trial court. He raised twelve (12) claims, including a claim of error under Hitchcock. All claims but one were found to be procedurally barred. The one exception — Smith's Hitchcock claim—was denied on the merits. On appeal, the Florida Supreme Court held that, while the trial court's instructions to the jury indeed violated Hitchcock, such error was harmless beyond a reasonable doubt. All other claims were found to be procedurally barred. Smith v. State, 556 So.2d 1096 (Fla.1990).

While Smith's Hitchcock claim was still being considered in the Florida courts, the Governor of Florida issued a second death warrant, setting Smith's execution for 7:00 a.m. on February 9, 1990. After the Florida Supreme Court denied all relief on February 8, 1990, but before his scheduled execution the following morning, Smith filed with this court a motion for stay of execution along with his second petition for writ of habeas corpus. With but a few short hours before Smith's scheduled early morning execution, and needing time to give proper consideration to both Smith's 176-page petition for writ of habeas corpus as well as the state's response, the court granted Smith's request for a stay. A complete, orderly record has now been compiled in this court, and Smith's claims are ripe for review.

II. THE HITCHCOCK CLAIM

Relying on Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), petitioner first contends that the jury and the judge in the state trial court were unconstitutionally precluded from considering — and defense counsel from presenting—mitigating circumstances not enumerated in the Florida death penalty statute. Fla.Stat. § 921.141. In Lockett, the Supreme Court concluded that the eighth and fourteenth amendments require a sentencer to consider all relevant mitigating evidence in capital cases. Despite Lockett, the advisory jury in Hitchcock was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances. The Supreme Court found that, in the absence of a showing that the error was harmless, such exclusion of mitigating evidence rendered Hitchcock's death sentence invalid. The Court reiterated its holding in Lockett that the eighth amendment, applicable to the states through the fourteenth amendment, requires that a capital sentencer not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record that the defendant proffers as a basis for a sentence less than death.

In this case, the state trial judge gave virtually the same instruction as that given in Hitchcock. At the conclusion of the penalty phase, the trial judge instructed the jury: "The mitigating circumstances which you may consider, if established by the evidence, are these: listing the seven statutory mitigating circumstances enumerated in the Florida death penalty statute." In Hitchcock, the trial judge instructed: "The mitigating circumstances which you may consider shall be the following: listing the same seven statutory mitigating circumstances." As in Hitchcock, the jury in this case was directed to consider only statutory factors in mitigation. As in Hitchcock, then, the jury instruction given in this case violated petitioner's eighth amendment right to "present any and all relevant mitigating evidence that is available." Hitchcock, 481 U.S. at 399, 107 S.Ct. at 1824, 95 L.Ed.2d at 353 (quoting Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986)).

While conceding that the trial court's instruction was erroneous, the state respondent here argues that both the trial court and the Florida Supreme Court were correct in concluding that the error was harmless. The Eleventh Circuit has said that a Hitchcock violation is subject to harmless error analysis. Demps v. Dugger, 874 F.2d 1385, 1389 n. 12 (11th Cir.1989) (citing cases), cert. denied, ___ U.S. ___, 110 S.Ct. 1834, 108 L.Ed.2d 963 (1990). Such analysis is governed by the strict "harmless beyond a reasonable doubt" standard enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Under Chapman, the court must presume prejudice unless and until the state proves beyond a reasonable doubt that the erroneous sentencing instruction did not contribute to the jury's sentencing recommendation. See Brown v. Dugger, 831 F.2d 1547 (11th Cir.1987) (discussing Chapman standard where constitutionally-proscribed evidence was admitted at trial). If there remains any possibility that the jury's sentencing decision was affected by the erroneous jury instruction, and if the state cannot refute that possibility, the error cannot be deemed harmless.

While state court factual findings are entitled to a presumption of correctness under 28 U.S.C. § 2254(d), harmlessness of a constitutionally erroneous jury instruction is not an issue of fact entitled to such a presumption. It is, instead, a mixed question of law and fact meriting independent consideration by a federal habeas court. This court, therefore, cannot simply defer to the state courts' findings of harmlessness. See, e.g., Delap v. Dugger, 890 F.2d 285 (11th Cir.1989) (finding Hitchcock error not harmless despite state courts' findings to the contrary).

Mindful that there are no precise guidelines for determining harmlessness in a...