White v. State, 71679
| Decision Date | 15 March 1990 |
| Docket Number | No. 71679,71679 |
| Citation | 559 So.2d 1097 |
| Parties | 15 Fla. L. Weekly S151 Jerry WHITE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Larry Helm Spalding, Capital Collateral Representative, and Billy H. Nolas and Carlo Obligato, Staff Attys., Office of the Capital Collateral Representative, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for appellee.
Jerry White, under sentence of death, appeals the denial of postconviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm.
White was convicted of robbing a small grocery store and shooting to death a customer. The court imposed life imprisonment for the armed robbery conviction and, following the jury's recommendation, death for the murder conviction. The convictions and sentences were affirmed on appeal. White v. State, 446 So.2d 1031 (Fla.1984). Subsequent to the signing of the death warrant, White filed a rule 3.850 motion and application for stay of execution. The stay was granted and the motion denied following an evidentiary hearing. This appeal followed. White raises seven issues: 1) ineffectiveness of counsel, 2) diminished jury role, 3) exclusion of black jurors, 4) exclusion of jurors opposed to capital punishment, 5) withholding of evidence, 6) insufficient finding of intent to kill, and 7) death by electrocution is cruel and unusual. We limit our discussion to the first issue; the others were either addressed on direct appeal or are without merit.
White asserts that his trial counsel was ineffective in three ways. First, he says the lawyer should have presented, or at least considered, the defense of voluntary intoxication in light of the extensive evidence that White was drunk at the time of the crimes. He says that many witnesses commented on White's drunken state, and that a blood alcohol level taken at the hospital several hours after the crime was nearly double the legal limit under the state's DUI statute. Had such a defense been presented, White claims, the jury may have found that he lacked the intent required for robbery or the premeditation necessary for first-degree murder. Second, he asserts that trial counsel should not have allowed him to take the stand in his own defense. Third, he claims that his lawyer's performance was generally ineffective for the following reasons: trial counsel was drunk or on drugs during the trial, the jury laughed at him, two newspapers commented on his incompetence, he was grossly unprepared, he failed to object at critical points, he failed to interview friends and family and present mitigating evidence at sentencing.
The standard for determining whether counsel's assistance was so defective as to require reversal was set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984):
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
We do not believe that counsel's performance requires reversal under this standard.
According to trial counsel's testimony at the evidentiary hearing, he rejected intoxication as a defense because it was inconsistent with the deliberateness of White's actions during the shootings. The court agreed with this view in its findings of fact:
It is clear from all of the pleadings in this case, as well as the bulk of the testimony presented at the Evidentiary Hearing, that the defense relies strongly upon the failure of trial counsel to present the intoxication defense. Of course, this is rebutted by the Defendant's detailed account of the facts of the incident. The Defendant's version of the events in question was represented by his detailed presentation to the jury. It would appear that the intoxication defense is incompatible with the Defendant's testimony. Years later, attorneys now argue that Defendant should not have taken the stand in order to present the intoxication defense. But the facts are clear, the Defendant wanted to take the stand to tell his story. Trial counsel ... testified that the defendant told him that he testified truthfully at the trial and even provided [counsel] with a hand-written statement consistent with his trial testimony. Trial counsel had to fashion a defense compatible with defendant's testimony which did not include raising the intoxication defense. Failure to do so under the facts of this case, is not ineffective assistance of counsel. Counsel's objections are usually based, on informed strategic choices made by the defendant and on information supplied by the defendant. This Court...
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