Stein v. State

• Decision Date: 25 September 2008
• Docket Number: No. SC06-1505.,SC06-1505.
• Citation: 995 So.2d 329
• Parties: Steven Edward STEIN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

995 So.2d 329

Steven Edward STEIN, Appellant, v. STATE of Florida, Appellee.

No. SC06-1505.

Supreme Court of Florida.

September 25, 2008.

Rehearing Denied November 19, 2008.

Harry P. Brody and Jeffrey M. Hazen of Brody and Hazen, PA., Tallahassee, Florida, for Appellant.

Bill McCollum, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, Florida, for Appellee.

PER CURIAM.

Steven Edward Stein appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons explained below, we affirm the circuit court's decision denying relief.

PROCEEDINGS TO DATE

Stein and his codefendant, Marc Christmas, were both indicted for armed robbery and the murder of two supervisors of a Pizza Hut in Jacksonville. Stein v. State, 632 So.2d 1361, 1363 (Fla.1994); see also Christmas v. State, 632 So.2d 1368 (Fla. 1994). They were tried and convicted separately. Stein, 632 So.2d at 1363 n. 1. Stein was convicted of two counts of first-degree murder and one count of armed robbery. Id. at 1363. By a ten-to-two vote, the jury recommended that Stein be sentenced to death for each murder. Id. at 1364. On July 23, 1991, the trial judge sentenced Stein to death. The judge also sentenced Stein to life for the armed robbery. Id. In sentencing Stein to death, the court found:

[F]ive aggravating circumstances: (1) previous conviction for a violent felony based on the contemporaneous murders of the two victims; (2) the homicides occurred during the commission of a robbery; (3) the homicides were committed to avoid arrest; (4) the homicides were heinous, atrocious, or cruel; and (5) the homicides were cold, calculated, and premeditated. Additionally, the trial judge found one statutory mitigating factor—no significant history of prior criminal activity.

Id. Stein appealed his convictions and sentences raising nine issues for review.¹ This Court affirmed, holding that even though the trial court erred in finding that the murders were heinous, atrocious, or cruel ("HAC"), there was no reasonable possibility of a different result. Id. at 1367.

On November 15, 1995, Stein filed a postconviction motion, and later filed two amended postconviction motions. In Stein's second amended motion, he raised the following twelve claims: (1) ineffective assistance of counsel ("IAC") because counsel failed to investigate and present sufficient mitigating circumstances; (2) the codefendant's life sentence was newly discovered evidence; (3) an unsigned sentencing order discovered in the State's file and not in the defense's file indicated that the trial judge, Judge Wiggins, delegated his responsibility of drafting the sentencing order to the State; (4) IAC because trial counsel conceded Stein's guilt in the armed robbery charge without his consent; (5) IAC because counsel failed to present an intoxication defense; (6) the prosecutor made inflammatory and improper comments and argument; (7) Florida's death sentencing scheme is unconstitutional; (8) the cold, calculated, and premeditated aggravating factor is unconstitutionally vague; (9) the trial court erred in instructing the jury on the HAC aggravator because this factor was overturned on direct appeal; (10) the rules prohibiting Stein from interviewing jurors is unconstitutional; (11) Stein's sentencing jury was misled by comments, questions, and instructions that diluted the jury's responsibility in sentencing; and (12) cumulative errors deprived Stein of a fair trial. On August 21, 2002, after holding a hearing in accordance with Huff v. State, 622 So.2d 982 (Fla. 1993), the trial court found that an evidentiary hearing was necessary on claims I-V of Stein's second amended motion.

On September 9, 2002, Stein filed a motion to disqualify Judge Wiggins, the trial judge, from presiding over his postconviction proceedings. Stein asserted that Judge Wiggins had become a material witness in the matter because he would have to testify to explain how an unsigned sentencing order came to be in the State's files.² On October 3, 2002, Judge Wiggins found that Stein's motion to disqualify was "legally insufficient pursuant to Florida Rule of Judicial Administration 2.160(E) and is also conclusory in nature." However, Judge Wiggins granted Stein's motion for disqualification for the limited purpose of permitting a further inquiry and evidentiary hearing into the sentencing order issue, and he retained jurisdiction to decide Stein's other claims. Chief Judge Moran of the Fourth Judicial Circuit assigned himself to the limited sentencing order issue and held an evidentiary hearing on October 18, 2002. At the hearing, five witnesses, including Judge Wiggins and the two assistant state attorneys who prosecuted Stein, testified. Based upon the evidence presented, Chief Judge Moran denied Stein's claim on the sentencing order on October 30, 2002.³ The case was then returned to Judge Wiggins who held an evidentiary hearing on February 13 and 14, 2006. He denied all claims on May 2, 2006. This appeal follows.

Stein raises four issues for review. First, Stein argues that Judge Wiggins erred in not granting his motion for judicial disqualification. Second, Stein argues that trial counsel was ineffective at trial for conceding guilt on the robbery charge to the jury where the felony-murder rule applied to his capital charges. Third, Stein argues that counsel was ineffective for failing to investigate and present certain witnesses as mitigation evidence. Fourth, Stein argues that his codefendant's life sentence is newly discovered evidence entitling him to a reconsideration of his death sentence.

JUDICIAL DISQUALIFICATION

In Stein's first claim he alleges that Judge Wiggins erred in not granting his motion for disqualification. However, he does not challenge Chief Judge Moran's resolution of the underlying issue concerning the presence of the unsigned sentencing order in the prosecutor's file. Stein argues on appeal that Judge Wiggins was a material witness to the claim that Judge Wiggins may have delegated his authority in drafting the sentencing order to the State because of the presence of the unsigned sentencing order in the State's file.

A motion to disqualify is governed substantively by section 38.02, Florida Statutes (2002), which provides in relevant part:

In any cause in any of the courts of this state any party to said cause ... may at any time before final judgment ... show by a suggestion filed in the cause that the judge before whom the cause is pending ... is a material witness for or against one of the parties to said cause....

Id. A motion to disqualify is governed procedurally by Florida Rule of Judicial Administration 2.330 (former rule 2.160), which provides in relevant part:

(d) Grounds. A motion to disqualify shall show:

(1) that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge; or

(2) that the judge before whom the case is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto or is interested in the result thereof, or that said judge is related to an attorney or counselor of record in the cause by consanguinity or affinity within the third degree, or that said judge is a material witness for or against one of the parties to the cause.

Id. The standard of review of a trial judge's determination on a motion to disqualify is de novo. Gore v. State, 964 So.2d 1257, 1268 (Fla.2007). Whether the motion is legally sufficient is a question of law. Id. In determining the legal sufficiency of a motion to disqualify, the court asks "whether the facts alleged, which must be assumed to be true, would cause the movant to have a well-founded fear that he or she will not receive a fair trial at the hands of that judge." Id. (citing Fla. R. Jud. Admin. 2.330(d)(1)).

Initially, we hold that because Stein's motion was predicated solely upon the unexplained presence of an unsigned sentencing order in the State's file, it was legally insufficient. Hence, the trial judge did not err in initially denying the motion as legally insufficient. We conclude that the mere presence of a copy of an unsigned sentencing order in the State's file, without more, should not give rise to a well-founded fear that a defendant will not receive a fair trial at the hands of that judge. That was the only claim here. Cf. Rodriguez v. State, 919 So.2d 1252, 1276-77 (Fla.2005) (holding that postconviction judge was not required to disqualify himself where his testimony as to the physical description of missing documents, his recollection of how he handled the documents, and his efforts to locate them, was strictly informational and did not qualify him as a material witness). Accordingly, in Stein's case, the hearing in which Judge Wiggins testified was unnecessary.⁴ Therefore, we hold that Judge Wiggins did not err in denying Stein's motion to disqualify.

We acknowledge that a judge should ordinarily recuse herself if she is going to be a material witness in the case. However, the sole allegation in this case was that there was an unsigned copy of a sentencing order in the State's file. The presence of such an order in itself is neither unusual nor indicative of any improper conduct by the trial court or counsel. Obviously, both parties, including the State, would ordinarily have a copy of the sentencing order. The fact that the order is unsigned is also, in and of itself, of little consequence. Copies of orders may be provided in many forms, and, while it is preferable that the copies provided conform with the date signed and the signature of the judge, the lack of a signature standing alone should give rise to no adverse inferences concerning the neutrality of the judge.

INEFFECTIVE ASSISTANCE OF COUNSEL

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