Smith v. Dugger

• Decision Date: 09 March 1988
• Docket Number: No. 86-3333,86-3333
• Citation: 840 F.2d 787
• Parties: Frank SMITH, Petitioner-Appellant, v. Richard L. DUGGER, et al., * Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 787

840 F.2d 787

Frank SMITH, Petitioner-Appellant, v. Richard L. DUGGER, et al., ^* Respondents-Appellees.

No. 86-3333.

United States Court of Appeals Eleventh Circuit.

March 9, 1988.

Billy H. Nolas, Office of Capital Collateral Representative, Tallahassee, Fla., Santha Sonenberg, Public Defender Service for Dist. of Columbia, Washington, D.C., for petitioner-appellant.

Lawrence A. Kaden, Asst. Atty. Gen., Patricia Conners, Dept. of Legal Affairs, State of Fla., Tallahassee, Fla., for respondents-appellees.

Appeal from the United States District Court for the Northern District of Florida.

Before RONEY, Chief Judge, HATCHETT and EDMONDSON, Circuit Judges.

RONEY, Chief Judge:

Defendant-Petitioner Frank Smith, sentenced to death in Florida for first-degree murder, appeals a district court order denying him federal habeas corpus relief. Smith raises the following six arguments on appeal:

(1) his right to a fair trial was abrogated by the trial court's refusal to instruct the jury as to his withdrawal defense to murder;

(2) his death sentence constitutes cruel and unusual punishment because the state court failed to make a finding on his individual culpability;

(3) his pre-trial statements were taken in violation of his Sixth Amendment right to counsel;

(4) he did not receive effective assistance of counsel at the penalty phase of his capital trial;

(5) the sentencing proceedings were unreliable and fundamentally flawed; and

(6) he is entitled to an evidentiary hearing on his claim that race was used as a factor in the decision to sentence him to death.

There being no showing of a violation of Smith's constitutional rights, we affirm.

Smith was charged, along with co-defendants Johnny Copeland and Victor Hall, with robbery, kidnapping, sexual battery and first-degree murder, based on events occurring on the evening of December 12, 1978. On that date, Smith and his two accomplices robbed a convenience store in Wakulla County, Florida, abducted the store clerk, Sheila Porter, and took her to a motel where they committed sexual battery upon her. Smith's accomplice, Victor Hall, testified that the three men later drove Sheila Porter to a wooded area. There, Hall waited in the car while Smith and Johnny Copeland took her into the woods. Hall testified that he heard three gunshots, and when Copeland and Smith returned to the car, Smith was carrying a gun. They left without Sheila Porter. Two days later, her body was found with three bullet wounds in the back of her head.

Found guilty of first-degree murder as well as the other charges, Smith was sentenced to death in accordance with the jury recommendation. The Florida Supreme Court affirmed Smith's convictions and death sentence on direct appeal. Smith v. State, 424 So.2d 726 (Fla.), cert. denied, 462 U.S. 1145, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983). ¹ The Governor of Florida denied Smith clemency and signed a warrant scheduling his execution. Smith then filed motions in the state court, seeking a stay of execution and post-conviction relief pursuant to Fla.R.Crim.P. 3.850. Both the trial court and the Florida Supreme Court refused to grant a stay and denied Smith's 3.850 motion. Smith v. State, 457 So.2d 1380 (Fla.1984). ²

Smith filed a petition for writ of habeas corpus in federal district court raising eighteen different claims ³ and Smith's execution was stayed to allow time for consideration of the petition. The district court held that ten of Smith's claims were procedurally barred, denied the remaining eight claims on the merits without an evidentiary hearing and granted a certificate of probable cause. ⁴

Failure to Instruct on Withdrawal Defense

Smith asserts that the trial court violated his due process rights by refusing to give a requested instruction on his withdrawal defense. Smith objected to the failure to give the instruction at trial and raised the issue on direct appeal. The State asserts that procedural default bars this Court from consideration of the constitutional claim because Smith previously framed the issue on direct appeal in terms of state law, rather than federal constitutional law. The State argues that the Florida Supreme Court invoked its procedural default rules in refusing to address in the 3.850 appeal the merits of Smith's constitutionally-based jury instruction claim on the ground that the claim "either [was] or could have been presented on appeal...." Smith v. State, 457 So.2d 1380, 1381 (Fla.1984).

The district court held there was a procedural default. The difficulty with the procedural default argument is found in the "was raised" or "could have been raised" dichotomy. If in fact the constitutionally-based jury instruction issue was raised on direct appeal, it was necessarily ruled on, whether the state court explicitly addressed it or not, and although foreclosed from state collateral attack, it would be available in the federal case as an exhausted claim. If it could have been raised, but was not, it would be barred from any state collateral review, and likewise barred from federal review. Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

As far as the state court was concerned, it made no difference as a practical matter, whether the claim was barred on res judicata or procedural default grounds. To a federal court reviewing the case, however, it does make a difference. If the constitutional claim was made in the direct appeal, the failure of the state court to address it on direct appeal or in the 3.850 would not bar a review in federal court, either on default or exhaustion principles.

The question of Smith's preservation of his claim on direct appeal turns on whether the facts of the claim argued as state law error were sufficient to alert the state court of a constitutional issue. Contrast Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982) (Petitioner's Sandstrom claim found to be unexhausted because jury instruction argument made on direct appeal relied solely on state law and broad constitutional argument that failure to properly instruct a jury violates the Sixth and Fourteenth Amendments) with Hutchins v. Wainwright, 715 F.2d 512, 519 (11th Cir.1983) (Objection on direct appeal to admissability of statements based on hearsay grounds sufficient to present constitutional confrontation clause claim to state court), cert. denied, 465 U.S. 1071, 104 S.Ct. 1427, 79 L.Ed.2d 751 (1984).

We need not decide the procedural default issue here, however, because going to the merits it is apparent there is no substance to the constitutional claim. Smith argues that the due process right to a conviction based on proof of guilt beyond a reasonable doubt requires a trial court to charge the jury on a defense which is timely requested and supported by the evidence. Even if this argument is sound as a matter of principle, it avails Smith nothing because the instruction he now argues should have been given was never requested, and the evidence did not support the instruction he requested.

Smith sets forth his withdrawal defense claim in the following manner: first, he recites the constitutional underpinnings of the right to a theory of defense instruction; second, he notes that under Florida law, withdrawal is a defense to felony murder or to premeditated murder under an accomplice theory; and third, Smith asserts that there is ample evidence to support the defense in his pre-trial statements which were introduced by the State in its case-in-chief. In these statements, Smith confessed to participating in the robbery and kidnapping, but maintained that he tried to talk his accomplice, Johnny Copeland, out of killing the victim.

At trial, Smith requested the following jury instruction for his withdrawal defense:

Ladies and Gentlemen of the Jury, one of the defenses raised in this case is the defense of withdrawal.

It is a valid defense to the charge of felony murder that the defendant withdrew from the commission of the felony upon which the felony murder charge is based before the death of the victim occurred. A party may withdraw from a criminal transaction and avoid criminal liability by communicating his withdrawal to the other parties in sufficient time for them to consider terminating their criminal plan and refraining from committing the contemplated crime.

If you find from the evidence that the defendant withdrew from the offenses of robbery and kidnapping before the death of the victim then he is not criminally responsible for the death of the victim and you must find him not guilty of murder.

If on the other hand you are convinced beyond a reasonable doubt that the defendant did not withdraw from the offenses of robbery and kidnapping, and you are otherwise convinced of his guilt beyond a reasonable doubt then you must find him guilty of first degree murder, or a lesser included offense.

This instruction refers to withdrawal only from the underlying felonies as a defense to felony murder. At trial, Smith never submitted or otherwise requested an instruction on withdrawal as a defense to premeditated murder under an accomplice theory.

Smith's felony murder charge was predicated on the offenses of kidnapping and robbery. In order for the jury to be charged with Smith's proposed instruction, Smith had to produce evidence that he withdrew from the kidnapping or the robbery before the victim's death. The record reveals no evidence on Smith's withdrawal from the underlying felonies. On the contrary, Smith admitted full participation in these offenses in his pre-trial statements introduced by the State.

There is no due process violation in the trial court's refusal to give the instruction in these circumstances.

Enmund Claim

In Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), the United States Supreme Court held that the death penalty constituted cruel and unusual punishment when a defendant did not kill, attempt to kill, intend to...