Steinhorst v. Wainwright
| Decision Date | 26 September 1985 |
| Docket Number | No. 64755,64755 |
| Citation | 477 So.2d 537,10 Fla. L. Weekly 536 |
| Parties | 10 Fla. L. Weekly 536 Walter Gale STEINHORST, Petitioner, v. Louie L. WAINWRIGHT, Secretary of the Florida Department of Corrections, Respondent. |
| Court | Florida Supreme Court |
Stephen D. Alexander and Wendy Snyder of Fried, Frank, Harris, Shriver & Jacobson, New York City, for petitioner.
Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for respondent.
This proceeding is before the Court on the petition of Walter Gale Steinhorst for a writ of habeas corpus. Petitioner Steinhorst is a state prisoner under sentence of death. We have jurisdiction. Art. V, § 3(b)(9), Fla. Const.
Steinhorst was convicted of four counts of first-degree murder. He received sentences of death on three of the murder convictions and a sentence of life imprisonment on the remaining conviction. On appeal, this Court affirmed the convictions and the sentences of death. Steinhorst v. State, 412 So.2d 332 (Fla.1982). By means of this habeas corpus petition, Steinhorst now asserts that he was deprived of the effective assistance of counsel on appeal with the result that he did not receive a full and adequate process of appellate review. He seeks a renewed appeal as to several specific issues identified as having been previously neglected.
We note at the outset that, with regard to each of the issues upon which petitioner contends he received inadequate legal representation, the legal merits of those issues, had they been argued on appeal, are not before us. The principle of finality of judgments, and the requirement that challenges to judgments and sentences be made by means of the one appeal to which a convicted person is entitled by law, prohibit allowing the writ of habeas corpus to be utilized as a vehicle for obtaining a second appeal. It is only if a case of ineffectiveness of counsel is established that this Court will address the merits of the previously neglected arguments by means of a belated appeal. See, e.g., Wilson v. Wainwright, 474 So. 1162 (Fla.1985).
Petitioner first argues that his counsel on appeal was inadequate in not arguing that petitioner was improperly prejudiced by pretrial publicity in violation of his due process rights. This issue, however, was not raised at trial by means of some kind of motion for protection or relief from the effects of publicity. Therefore, petitioner's appellate counsel would have been precluded from making the argument by the firmly established principle that an appellate court will not consider arguments of legal error not raised before the trial court.
Petitioner argues that his appellate counsel should not have thought that he was precluded from making the argument concerning publicity because the effects of publicity created such a substantial due process violation as to constitute fundamental error. Thus in effect the petitioner is arguing that his appellate counsel, in order to be considered effective, was required to argue that the trial court had erred in not taking action to remedy the effects of pretrial publicity on its own motion. The essence of the argument being made is that the lack of protective action by the trial court on its own motion, being fundamental error, provided a ground for appeal that appellate counsel should have argued even though trial counsel apparently did not perceive a sufficient unfavorable impact to justify asking the trial court for some kind of judicial relief or protection from the effects of the publicity. We find this argument to be completely devoid of merit. A claim of denial of a fair trial due to publicity can be presented on appeal only if the aggrieved appellant has attempted to secure relief from the effects of publicity by means of some kind of motion before the trial court. If defense counsel at trial does not perceive sufficient unfavorable impact or prejudice to his right to a fair trial to justify asking the court for some kind of remedy, and therefore does not seek such relief by motion, any subsequent reliance on the issue as a ground of attack on the outcome of the trial is waived. See, e.g., Stone v. State, 378 So.2d 765 (Fla.1979), cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980).
Petitioner next argues that his counsel on appeal inadequately argued the contention that the trial court had erred in granting the state two challenges of prospective jurors for cause based on expressions of views unfavorable to capital punishment. It should be noted that petitioner's appeal counsel did in fact argue to this Court that the allowance of challenges for cause based on death penalty views was error on the ground that it deprived him of a trial by a jury representative of the community. The argument was rejected on its merits by this Court. 412 So.2d at 335. Petitioner argues that his appeal counsel omitted two other grounds of appellate attack and inadequately argued the ground that was asserted.
Petitioner argues that the trial court's rulings on the two prospective jurors were susceptible to challenge on appeal on three grounds: (1) violation of the principle of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 368 (1968), with regard to the role of the jury in making a capital sentencing recommendation; (2) that the challenges allowed the state to empanel a jury that was "conviction-prone"; (3) that the challenges deprived petitioner of a trial on guilt or innocence by a jury drawn from a representative sampling of the community.
With regard to the Witherspoon issue it is clear to us that appellate counsel did not argue the issue because it did not appear to carry much chance of success. That is, counsel believed that the challenges for cause were properly granted under Florida law and under the Witherspoon principle. When counsel makes a choice not to argue an issue due to his unfavorable evaluation of his chance for success comparing his set of facts with the principles of prevailing law, and his evaluation is reasonably accurate, reflecting reasonable competence, the omission cannot be characterized as ineffectiveness of counsel. We find that the lack of argument on the Witherspoon question was based on a reasonable choice.
With regard to the argument that appellate counsel should have attacked the challenges on the ground that they rendered the jury conviction-prone, we observe that appellate counsel could not have raised the issue because it was not raised by objection at trial. See, e.g., Maggard v. State, 399 So.2d 973 (Fla.1981). Moreover, the argument that the procedure for qualification of jurors to...
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