Turner v. Dugger

• Decision Date: 24 December 1992
• Docket Number: Nos. 75848,77062,s. 75848
• Citation: 614 So.2d 1075
• Court: Florida Supreme Court
• Parties: 18 Fla. L. Week. S30 William Thaddeus TURNER, Petitioner, v. Richard L. DUGGER, etc., Respondent. William Thaddeus TURNER, Appellant, v. STATE of Florida, Appellee.

Page 1075

614 So.2d 1075

18 Fla. L. Week. S30

William Thaddeus TURNER, Petitioner, v. Richard L. DUGGER, etc., Respondent.

William Thaddeus TURNER, Appellant, v. STATE of Florida, Appellee.

Nos. 75848, 77062.

Supreme Court of Florida.

Dec. 24, 1992.

Rehearing Denied March 25, 1993.

C. Graham Carothers, Kenneth R. Hart and Timothy B. Elliott of Ausley, McMullen, McGehee, Carothers & Proctor, Gwendolyn Spivey, and Steven M. Goldstein, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Richard B. Martell, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

William Thaddeus Turner was convicted of the first-degree murders of his estranged wife, Shirley Turner, and her roommate, Joyce Brown. The trial court sentenced Turner to life imprisonment for the murder of his wife and, in accordance with the jury's recommendation, to death for the murder of Brown. Following a remand, this Court affirmed the convictions and sentences on direct appeal. Turner v. State, 530 So.2d 45 (Fla.1987), cert. denied, 489 U.S. 1040, 109 S.Ct. 1175, 103 L.Ed.2d 237 (1989). A death warrant was signed on March 29, 1990, with execution scheduled for May 30, 1990.

Turner filed a motion for stay of execution and a limited petition for writ of habeas corpus. He was granted a stay after which he filed an amended petition for writ of habeas corpus and a motion to vacate conviction and sentence pursuant to Florida Rule of Criminal Procedure 3.850. The trial judge denied the motion for postconviction relief without granting an evidentiary hearing. Turner's appeal of the denial of the motion and the pending petition are before us for disposition. We have jurisdiction pursuant to article V, section 3(b)(1), (9), Florida Constitution.

RULE 3.850 MOTION

Turner raises sixteen claims in his rule 3.850 motion: (1) the trial court applied the Florida statutory scheme for the weighing of aggravating and mitigating circumstances in an arbitrary and capricious manner; (2) trial counsel failed to adequately investigate, prepare, and present mitigating circumstances in the penalty phase; (3) the Florida sentencing scheme placed upon Turner the burden of proving that death was not the appropriate sentence; (4) trial counsel failed to investigate and arrange for competent mental health assistance; (5) trial counsel was ineffective at the guilt phase; (6) trial counsel failed to effectively challenge the application of aggravating factors; (7) trial counsel failed to object to improper prosecutorial argument relative to nonstatutory aggravating factors; (8) trial counsel failed to argue that giving Turner the burden of proving that life was the appropriate sentence violated his right to a reliable sentencing determination; (9) trial counsel failed to object to victim-impact evidence in violation of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987); (10) trial counsel failed to object to instructions and argument that diminished the jurors' sense of responsibility in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (11) trial counsel failed to object to the trial court's and the prosecutor's assertions that sympathy and mercy were improper considerations for the jury; (12) trial counsel failed to ensure a reliable and individualized capital-sentencing determination; (13) the cumulative effect of prosecutorial misconduct rendered the trial and sentence fundamentally unfair; (14) the Turner attempts to circumvent this Court's prohibition against using postconviction proceedings as a means of obtaining a second appeal of issues that were raised on direct appeal. Thus, claims 14 and 15 are procedurally barred because they, or variations thereof, were raised on direct appeal. Bush v. Dugger, 579 So.2d 725, 727-728 (Fla.1991); Swafford v. Dugger, 569 So.2d 1264, 1267 (Fla.1990); Roberts v. State, 568 So.2d 1255, 1258 (Fla.1990).

murders were not "cold, calculated, and premeditated" as defined by Rogers v. State, 511 So.2d 526 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 733, 98 L.Ed.2d 681 (1988), and the trial court failed to limit construction of this aggravating factor in violation of Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); (15) the trial court's instructions concerning the "heinous, atrocious, or cruel" aggravating factor conflict with Maynard v. Cartwright; (16) the trial court failed to record charge and bench conferences and trial counsel failed to object. For the following reasons we deny relief.

Claims 5, 7, 9, and 11 involve assertions of ineffective representation relative to counsel's failure to make various objections during the guilt and penalty phases of the trial. Having carefully reviewed the record, we conclude that trial counsel's performance pertaining to these issues did not fall below the standard articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In other words, counsel's performance was not so deficient that he was not "functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. As to these claims, we conclude that "counsel's assistance was reasonable considering all the circumstances." Id. at 688, 104 S.Ct. at 2065.

As to claim 1, Turner alleges fundamental error in the trial court's sentencing order. He argues that under Campbell v. State, 571 So.2d 415 (Fla.1990), and related cases decided since his direct appeal, the trial court erred in making its findings of mitigating circumstances and in weighing the mitigating factors against the aggravating factors. We find that none of these cases represent such a major constitutional change in the law as to require retroactive application on collateral attack. See Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980).

In claims 2 and 12, Turner alleges that trial counsel was ineffective in that he failed to investigate and present mitigating circumstances, he failed to argue for a finding of nonstatutory mitigation, and he failed to inform the jurors in closing argument that they could consider mitigating evidence during the guilt phase. In support of his claims that counsel was ill-prepared to present mitigation evidence, Turner points to his motion for continuance, which was denied just prior to sentencing. The trial court found no merit to these claims and we agree.

A review of the record reveals that counsel presented evidence relating to Turner's good character, heroic effort in preventing a rape, family background, intellectual ability, educational achievement, military service, employment, emotional anguish over the loss of his marriage and family, religious feelings, financial hardship, and health problems. The record also reveals that trial counsel presented evidence relating to Turner's mental state at the time of the offense through the testimony of three mental health experts, two during the guilt phase and one in the penalty phase. Counsel argued in a presentence memorandum that there was sufficient evidence to constitute nonstatutory mitigation under Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). The trial court's jury instructions adequately informed the jurors that they could consider evidence presented in the guilt phase.

Under Strickland, "a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 In claims 3 and 8, Turner contends that Florida's capital-sentencing scheme unconstitutionally shifted the burden to him to prove that life is the appropriate sentence. Each of these claims assert that counsel was ineffective in failing to make this argument. Allegations that counsel was ineffective are without merit in that the record shows he argued this point in a pretrial motion. Turner's substantive claims regarding "burden-shifting" are procedurally barred because they should have been raised on direct appeal. Engle v. Dugger, 576 So.2d 696, 703 (Fla.1991).

                U.S. at 691, 104 S.Ct. at 2066.   Applying this standard, we do not find that defense counsel's performance was "outside the wide range of professionally competent assistance."  Id. at 690, 104 S.Ct. at 2066
                

Claim 4 alleges that counsel failed to provide the mental health experts with sufficient background information to ensure competent evaluations. The record refutes this allegation. The experts were given the opportunity to interview Turner and administer psychological tests. They reviewed depositions and statements of witnesses, police reports, and documents from Turner's divorce file and attempted Baker Act proceeding. The experts were aware of Turner's beliefs that his wife and Brown were lesbians and prostitutes. One of the experts expressly described Turner as delusional at the time of the murders, feeling a moral justification in committing the homicides. Trial counsel was not ineffective "simply because he relied on what may have been less than complete pretrial psychiatric evaluations." State v. Sireci, 502 So.2d 1221, 1223 (Fla.1987). The fact that Turner recently has secured more favorable expert opinions is an insufficient basis for relief. Provenzano v. Dugger, 561 So.2d 541 (Fla.1990).

Turner argues in claim 6 that counsel failed to effectively challenge the application of three of the aggravating circumstances. On direct appeal, this Court affirmed the trial judge's findings that the homicide was cold, calculated, and premeditated and that the homicide was committed during the felony of burglary. We specifically noted that Turner did not deny that he had been previously convicted of the murder of his estranged wife. Turner, 530 So.2d at 50 n. 1. The record indicates that during the...