12/15/83 BOTTOSON v. STATE


[Editor's note: footnotes (if any) trail this opinion]

[1] SUPREME COURT OF FLORIDA

[2] LINROY BOTTOSON, Appellant,

[3] v.

[4] STATE OF FLORIDA, Appellee

[5] Docket No(s). 60,708

BLUE BOOK CITATION FORM: 1983.FL.183 (http://www.versuslaw.com)

[6] Date Released: December 15, 1983

[7] An Appeal from the Circuit Court in and for Orange County, Frank N.
Kaney, Judge - Case No. CR79-4512.

[8] Rehearing Denied February 7, 1984.

[9] APPELLATE PANEL

[10] THE HONORABLE JUDGE Boyd Alderman, C.J., Adkins, Overton, McDonald and
Ehrlich, JJ., concur.

[11] DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BOYD

[12] This cause is before the Court on appeal from a final judgment of
conviction of murder in the first degree and a sentence of death. This Court
has jurisdiction of the appeal under article I, section 3(b)(1) of the
Florida Constitution.

[13] Linroy Bottoson was convicted for the first-degree murder of Catherine
Alexander, the postmistress at Eatonville, in Orange County. The victim was
last seen alive leaving the post office at around noon on October 26, 1979,
with a tall black man. As she was leaving, she whispered to two bystanders
to call the police and tell them that the man was stealing. United States
postal inspectors were called, and they discovered that some postal money
orders were missing. They began to suspect appellant and his wife when they
learned that appellant's wife had tried to cash one of the missing postal
money orders at her bank that very afternoon. Appellant's residence was
place under surveillance Monday evening, October 29, as the postal
inspectors applied to a United States magistrate for an arrest warrant. The
magistrate granted the application but the actual preparation of the warrant
was postponed until the following day because there was no one available to
draft and type it. Upon learning of the granting of the application, several
postal inspectors entered appellant's home around 10:30 p.m. and arrested
appellant and his wife. The next day the postal inspectors searched
appellant's home pursuant to a search warrant and found the missing money
orders and the victim's shoes. In all the confusion the arrest warrant was
never drafted and formally issued. The victim's body was found on the side
of a dirt road the same night appellant was arrested.

[14] At the trial three persons who were present at the abduction testified.
Though none of them could identify appellant as the man with whom the victim
was seen leaving the post office, they all identified from a photograph the
car in which she was taken away. It was later shown that the car was rented
to appellant at the time of the abduction. A postal official identified the
money orders found in appellant's home and could trace them to the machine
at the Eatonville post office. There was also evidence of appellant's having
deposited some of the stolen money orders in his bank account.

[15] The medical examiner testified that the victim had been stabbed
fourteen times in the back and once in the abdomen. He said that she died
from crushing injuries to the chest and abdomen which were consistent with
being run over by an automobile. There was expert testimony that hair
samples and clothing impressions found on the undercarriage of appellant's
car, a brown 1973 Chevelle, were consistent with having come from the
victim's body and clothing. There was also expert evidence that clothing
fibers similar to those in the victim's clothes and a tip of the victim's
fingernail were found inside the car. Furthermore a dog handler testified
that one of his dogs who was familiarized with the victim's scent found the
victim's scent inside the car rented by appellant and underneath the length
of the brown Chevelle owned by appellant. He also testified that another dog
familiarized to appellant's scent indicated appellant's scent was present at
the location where the victim's body was found.

[16] Appellant's former wife, who was married to him at the time of the
murder, testified that on October 26, appellant was away from home in the
rented car at around noon. When he returned he gave her a postal money order
which she deposited at the bank that afternoon. She testified that on the
following Monday, October 29, she did not see appellant from 1:30 p.m. to
10:00 p.m. and that during that time he had the brown Chevelle.

[17] A minister who visited appellant in jail testified that appellant
admitted killing the victim. Also, during the trial the prosecuting attorney
announced that the state had just learned from appellant's cellmate of some
incriminating statements made by appellant. The cellmate was called as a
witness and he testified that appellant admitted to killing Mrs. Alexander
and that appellant had said "the best witness is a dead witness."

[18] Appellant testified in his own defense. He claimed that on October 26,
he loaned his rented car to a man named Ernest who gave him the postal money
orders upon returning the car. He said that over the weekend he became
suspicious of a connection between the money orders and the reported
disappearance of the postmistress and went to see Ernest about it on Monday
night. Appellant testified that Ernest admitted the money orders came from
the Eatonville post office and then asked to borrow his car to give an
elderly lady a ride home. Appellant said that he gave Ernest the keys to his
brown Chevelle and that when Ernest returned Ernest admitted to having just
killed Mrs. Alexander. Appellant said that he insisted on seeing for
himself, so Ernest drove him out to the site of the murder where appellant
got out of the car to look at the body.

[19] The jury found appellant guilty of first-degree murder. In accordance
with the jury's recommendation, the trial judge sentenced appellant to
death.

[20] In this appeal, appellant raises several points concerning the
admissibility of the statements he made to the minister and the cellmate,
the constitutionality of the search of his residence, the sufficiency of the
evidence, the court's denial of his motions for additional counsel and to
exhume the victim's body, the court's refusal to give a requested
instruction, and the appropriateness of the death penalty. We resolve all of
these issues against appellant and therefore affirm.

[21] While awaiting trial appellant developed a friendship with another jail
inmate named Pertrell Kuniara. According to Kuniara's testimony, appellant
told Kuniara he killed the victim by stabbing her and running over her with
a car because "dead witnesses are the best witnesses." Kuniara relayed this
information to the state attorney's office and was advised not to question
appellant further about the case. Despite this admonition Kuniara continued
to discuss appellant's case with him. Appellant now claims that Kuniara was
acting as a governmental informant and that the evidentiary use of his
statements to Kuniara violated his sixth amendment right to counsel, relying
on United States v. Henry, 447 U.S. 264, 65 L. Ed. 2d 115, 100 S. Ct. 2183
(1980). But as we have noted in Barfield v. State, 402 So.2d 377 (Fla.
1981), Henry does not apply to unsolicited statements made to a cellmate who
is neither paid nor instructed by the government. In this case there was an
insufficient connection between Kuniara and the state to establish that
Kuniara was a government agent. Moreover, there is no proof that Kuniara
actually solicited the incriminating statements from appellant. Therefore
appellant's sixth amendment right to have counsel present during questioning
did not come into play.

[22] During their discussions, Kuniara suggested to appellant that he talk
to Reverends Judge and Champion to enlist their support in negotiating a
plea. Appellant requested that the two ministers visit him. When they
arrived he handed them two written statements confessing to the murder and
requesting leniency. They delivered these statements to the state attorney's
office. Appellant now argues that these statements were inadmissible in
evidence as either privileged communications or as statements made in
connection with an offer to plead guilty. Appellant's second contention
refutes his first. By his own admission he intended for these statements to
be relayed to the state attorney's office. Since they were intended to be
communicated to a third person, the statements were not confidential and
were therefore not privileged communications. See § 90.505, Fla. Stat.
(1981).

[23] As for his second argument, we agree that any statement made in
connection with a plea or an offer to plead is inadmissible. § 90.410, Fla.
Stat. (1981). However, we do not believe that unsolicited, unilateral
statements are under the aegis of this evidentiary statute. In construing
the similarly worded Federal Rule of Criminal Procedure 11(e)(6), the
federal courts have held that before excluding statements made during a plea
negotiation a "trial court must apply a two-tiered analysis and determine,
first, whether the accused exhibits an actual subjective expectation to
negotiate a plea at the time of the discussion, and, second, whether the
accused's expectation was reasonable given the totality of the objective
circumstances." United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir.
1978) (en banc); see also United States v. O'Brien, 618 f.2d 1234 (7th
Cir.), cert. denied, 449 U.S. 858, 101 S. Ct. 157, 66 L. Ed. 2d 73 (1980);
United States v. Pantohan, 602 F.2d 855 (9th Cir. 1979).In this case
appellant's expectation that he was involved in a plea negotiation was not
reasonable. The ministers were not agents for the state nor did they pretend
to be. Appellant gave them his statements before there was any discussion as
to the role they would play in helping him to obtain leniency. Thus we fail
to find any error in the admission of these statements into evidence.

[24] Appellant's third point on appeal is that the postal inspector's entry
into his house without an arrest warrant violated his state constitutional
right to be free from unreasonable seizure. He points out that subsequent to
his arrest, the United States Supreme Court in Payton v. New York, 445 U.S.
573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980), held that a warrantless and
nonconsensual entry into a suspect's home to make a routine felony arrest
was unconstitutional. We do not find Payton to be applicable because this
was not a routine felony arrest. As far as the officers knew the
postmistress was still alive. Hence there was probable cause and exigent
circumstances justifying the warrantless arrest of appellant within his
home.

[25] We have reviewed the entire record and find that there is more than
enough evidence to support the jury's verdict. We also find no merit in
appellant's assertions that the trial court erred in denying his motions for
additional counsel and to exhume the victim's body.

[26] We now proceed to the sentencing phase of the trial. At the sentencing
hearing the state called only one witness, an FBI agent who had investigated
appellant for bank robbery in California. The agent identified an exhibit as
papers relating to appellant's conviction. The state inadvertently neglected
to offer the exhibit into evidence. After the Jury had retired to
deliberate, the prosecuting attorney brought to the court's attention that
the exhibit had somehow been included with the materials given to the jury.
The defense moved to have the penalty phase retried before a new jury. The
judge ruled it was harmless error since he would have let the exhibit in if
it had been offered into evidence.

[27] We agree with appellant that it is error for the jury to be exposed to
materials that have not been properly introduced into evidence. However,
before a mistrial can be granted, it must be shown that the existence of an
unauthorized object in the jury room has somehow prejudiced the defendant.
E.g., State v. Turrentine, 122 Ariz. 39, 592 P.2d 1305 (Ct. App. 1979);
Vaughn v. United States, 367 A.2d 1291 (D.C. 1977); State v. Gander, 220
Kan. 88, 551 P.2d 797 (1976); Brittle v. Commonwealth, 222 Va. 518, 281
S.E.2d 889 (1981); Johnson v. State, 75 Wis. 2d 344, 249 N.W.2d 593 (1977).
There is no prejudice where the information conveyed by the unauthorized
materials merely duplicates evidence that had been properly presented to the
jury at the trial. State v. Sumpter, 655 S.W.2d 726 (Mo. Ct. App. 1983);
Edwards v. State, 637 P.2d 886 (Okla. Crim. App. 1983). In this case the
unadmitted exhibit that was inadvertently allowed to go into the jury room
merely reproduced the testimony of the FBI agent, which the jury had already
heard. We therefore hold that the trial court did not abuse its discretion
in denying the motion for mistrial.

[28] Appellant argues that the trial court erred in not instructing the jury
that it could recommend life imprisonment even if it found the existence of
aggravating circumstances and no mitigating circumstances. Since appellant
did not object to the instructions given, he has waived this objection.
Demps v. State, 395 So.2d 501 (Fla.), cert. denied, 454 U.S. 933, 70 L. Ed.
2d 239, 102 S. Ct. 430 (1981).

[29] Finally we hold that the trial judge properly imposed the death
sentence. As aggravating circumstances, the trial judge found that appellant
had previously been convicted of a crime involving the threat of violence;
that the crime was committed during the commission of a felony; that it was
committed for the purpose of avoiding arrest; and that it was especially
heinous, atrocious, or cruel. He found no mitigating circumstances.

[30] All of these aggravating circumstances were proven beyond a reasonable
doubt. Appellant had previously been convicted of a bank robbery which
inherently involves the use or threat of use of violence against another
person. See Antone v. State, 382 So.2d 1205 (Fla.), cert. denied, 449 U.S.
913, 66 L. Ed. 2d 141, 101 S. Ct. 287 (1980). Appellant concedes that the
crime was committed during the commission of a robbery. That it was
committed for the purpose of avoiding arrest was proven by appellant's own
statement to Kuniara that "dead witnesses are the best witnesses." Finally
that the victim was held captive for at least three days before being
stabbed about fifteen times and then run over with a car renders this crime
especially, heinous, atrocious, or cruel. These aggravating circumstances,
considered in light of the nonexistence of any mitigating factors, clearly
justified the trial court's determination that a sentence of death is
proper.

[31] We therefore affirm the conviction for first-degree murder and the
sentence of death.

[32] It is so ordered.

[33] ALDERMAN, C.J., ADKINS, OVERTON, McDONALD and EHRLICH, JJ., Concur.

[Editor's note: Illustrations from the original opinion, if any, are
availiable in the print version]

(c) 1997 VersusLaw, Inc. (206) 250-0142. http://www.versuslaw.com

19831215


60,708


443 So. 2d 962
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
05/13/96 LINROY BOTTOSON, v. STATE OF FLORIDA,


BLUE BOOK CITATION FORM: 1996.FL.576 (http://www.versuslaw.com)

[Editor's note: footnotes (if any) trail the opinion]

[1] Supreme Court of Florida

[2] THURSDAY, MAY 9, 1996

[3] LINROY BOTTOSON,

[4] Appellant,

v.

[5] STATE OF FLORIDA,

[6] Appellee.

[7] Cir.Crt. No. CR79-4512 Div.14

[8] (Orange County)

[9] The Motion for Rehearing filed by Appellant, having been considered in
light of the revised opinion, is hereby denied.

[10] GRIMES, C.J., and OVERTON, HARDING and WELLS, JJ., concur.

[11] SHAW, KOGAN and ANSTEAD, JJ., dissent.

[12] Supreme Court of Florida

[13] No. 81,411

[14] LINROY BOTTOSON,

[15] Appellant,

v.

[16] STATE OF FLORIDA,

[17] Appellee.

[18] [January 18, 1996]

[19] REVISED OPINION

[20] PER CURIAM.

[21] We have on appeal the judgement of the trial court denying Linroy
Bottoson, an inmate under sentence of death, relief requested under Florida
Rule of Criminal Procedure 3.850. We have jurisdiction. Art. V, Section(s)
3(b)(1), (9), Fla. Const.

[22] Briefly stated, Bottoson kidnapped a postmistress and stole some money
orders. He held her captive for three days and at least part of the time
confined her in the trunk of his car. He then stabbed her sixteen times and
finally ran over her with his car. He admitted the murder to more than one
person. The jury recommended death, and a sentence of death was imposed.
Bottoson v. State, 443 So. 2d 962 (Fla. 1983), cert. denied, 469 U.S. 873,
105 S. Ct. 223, 83 L. Ed. 2d 153 (1984).

[23] Most of Bottoson's claims are procedurally barred *fn1 or meritless.
*fn2 However, there are three issues which require discussion.

[24] Bottoson contends that his trial counsel was ineffective for failing to
investigate the qualifications of a dog handler who testified for the State.
At the time of the trial, the witness was a nationally recognized witness in
dog handling, but several years later he was exposed as a charlatan who had
misrepresented himself and his dog's capabilities. We agree with the trial
court's finding that counsel's decision not to probe deeper into the
witness's qualifications was not substandard or deficient. Moreover, even if
it could be said that counsel was deficient, the evidence against Bottoson
was so overwhelming that there is no reasonable probability that the result
would have been different in the absence of such deficiency. *fn3

[25] Turning to the penalty phase, Bottoson contends that the jury
instructions at his trial violated Hitchcock v. Dugger, 481 U.S. 393, 107 S.
Ct. 1821, 95 L. Ed. 2d 347 (1987). Because the trial judge only instructed
the jury on the statutory mitigating factors, it is clear that a Hitchcock
error did in fact occur. However, the United States Supreme Court
acknowledged in Hitchcock that its reasoning was subject to a harmless error
analysis.

[26] At the outset, we note that in this case the trial court permitted the
presentation of non-statutory mitigating evidence and did not expressly tell
the jury not to consider such evidence. Moreover, defense counsel presented
certain non-statutory evidence. The jury was told that they could consider
anything in mitigation. During closing argument in the penalty phase, the
prosecuting attorney made the following remarks:

[27] Well, let's be fair to the Defendant. There were some other things. The
reason why this big blank space down here [on the jury form] is there and
that is because, ladies and gentlemen, under the law, you all can bring in
anything you want to by way of mitigation.

[28] From the case in chief, that is the evidence that you all already
heard, I think you heard some evidence of, in the statement that he gave to
the ministers, I'm sorry that this happened, demons got on me. You've heard
a lot of evidence even in this portion of the trial, the penalty phase that
Mr. Bottoson holds himself out as a minister and finally, in that statement,
that came out in the case in chief, ladies and gentlemen, Mr. Bottoson
thinks that fourteen years of Federal time is enough and he has that on him.
You may consider that in mitigation.

[29] From the Defense's witnesses that were brought in here, ladies and
gentlemen, I'm going to write these by numbers. Reverend Johnson comes in
here and I think what you can boil down his testimony to be saying is one or
more people in the courtroom have made mistakes.

[30] Well, for what it's worth, you can consider that, Mrs. Johnson says
that she feels Linroy Bottoson is not a sinner. You may consider that.

. . . .

[31] Finally, ladies and gentlemen, in mitigation, you see something you've
seen, something from Mrs. Bottoson. There's a mother who loves her son and
you can consider that.

[32] Finally, the non-statutory mitigating evidence which Bottoson presented
in mitigation was not strong. A preacher and his wife testified that
Bottoson had become a devout church member and assisted in counseling
members of the congregation. A corrections officer testified that he had
heard Bottoson counseling another prisoner. Bottoson's mother testified that
he was a good son. Particularly in view of the strong aggravating
circumstances, *fn4 we are convinced beyond a reasonable doubt that the
Hitchcock error was harmless. See Demps v. Dugger, 874 F.2d 1385 (11th Cir.
1989) (finding Hitchcock error harmless in view of minimal statutory
mitigating evidence), cert. denied, 494 U.S. 1090, 110 S. Ct. 1834, 108 L.
Ed. 2d 963 (1990).

[33] The bulk of the ten-day hearing on the motion for postconviction relief
focused on Bottoson's claim that his lawyer, William Sheaffer, was
ineffective during the penalty phase of his trial. The judge addressed this
claim as follows:

[34] 16. Claim J, that Defendant's counsel was ineffective during the
penalty phase of the trial, must also be denied. It is alleged that counsel
failed to obtain Defendant's prior mental health records and failed to
interview family members and friends, specifically Mr. Bottoson's mother.
However, these claims are refuted by the record. Counsel attempted to obtain
Defendant's past psychiatric records but was unable to obtain them prior to
trial. Additionally, counsel had contacted Mr. Bottoson's mother prior to
trial.

[35] The most troubling claim for this Court was Mr. Bottoson's assertion
that counsel failed to present any mental disturbance evidence and certain
other mitigating evidence during the penalty phase. However, Defendant's
trial counsel stated that he had discussed Defendant's mental health with
two or three psychiatrists who had taken a complete past medical history.
Counsel averred that he did not receive any information which would have
indicated past mental illness or present mental illness that could either
serve as a defense or a mitigating factor in the penalty phase.
Additionally, to present this type of evidence to the jury would have been
incongruous with the defense asserted, i.e. Defendant had not committed the
crime. During the penalty phase argument, counsel again pointed out to the
jury the possibility that someone else had committed the crime. Certainly
this was a valid strategy.

[36] In any event, this Court has extensively reviewed this claim in light
of the entire record, and finds that even if counsel's performance may have
been deficient in some respects, any failure was not prejudicial pursuant to
Strickland, 466 U.S. at 668. The mitigating evidence now presented would not
outweigh or overcome the aggravating circumstances of this murder.
Defendant's background, child experiences (Defendant was 41 years old at the
time of trial) and religious eccentricities do not compare to the
aggravating factors that 1) Mr. Bottoson had been previously convicted of a
felony, 2) the murder occurred during the commission of a felony, 3) the
murder was committed to avoid arrest, and that 4) the murder was especially
heinous because of the kidnapping, long confinement and mode of killing of
the 74 year old victim. See generally Buenoano v. Dugger, 559 So. 2d 1116
(Fla. 1990). Hence, there is no finding of prejudice under Strickland.

[37] The record of the post-conviction hearing reflects that Bottoson told
Sheaffer that he had been treated for depression in Ohio and in connection
with his prior robbery conviction in California. Sheaffer asked his
investigator to try to obtain the Ohio medical records. The investigator
contacted the applicable Ohio hospital but was advised that the records were
unavailable because they had been destroyed in a fire. Sheaffer said he took
no action on the California treatment because Bottoson had minimized the
episode.

[38] The post-conviction record further shows that Sheaffer had no personal
reservations concerning Bottoson's mental health, but in order to be certain
he had him examined by two psychiatrists. Although these were competency
examinations, the psychiatrists' reports necessarily discussed all aspects
of Bottoson's mental health. After reviewing these reports and talking with
one of the psychiatrists, Dr. Kirkland, Sheaffer concluded that the
presentation of mental health testimony would not be helpful to Bottoson.

[39] In addition, Sheaffer talked to Bottoson about witnesses who might be
called in the penalty phase. Bottoson suggested two ministers and a person
from the jail, but said there were no others whom he wanted to speak on his
behalf. Sheaffer called Bottoson's minister as well as the minister's wife,
and they both testified as to Bottoson's good character. Sheaffer also
called Bottoson's mother to testify that he had been a good son and to plead
for mercy.

[40] Dr. Kirkland, who also testified at the post-conviction hearing, said
that Bottoson had told him of the psychiatric treatments he had received in
Ohio and California. He was aware that Bottoson had experienced religious
hallucinations, but observed that psychiatrists are loath to say that this
would indicate that a person is abnormal or mentally ill. Dr. Kirkland was
then shown a card reflecting Bottoson's medical diagnosis in Ohio, obtained
by the Capital Collateral Representative's investigator from another
hospital to which Bottoson's records had been transferred. The card referred
to a 1962 diagnosis of acute schizophrenic episode with the words
"discharge, improved." Dr. Kirkland testified that in 1962 this referred to
a person who had had a short psychotic episode from which he had recovered.
He said that had he been provided with that document he would not have
changed his original evaluation. Dr. Kirkland said that the information on
the card together with the medical reports which the Capital Collateral
Representative was able to obtain from California would have led him to
conclude that Bottoson was a latent schizophrenic. He explained that this
was a term used to describe a schizophrenic who had gotten better.

[41] In view of Sheaffer's effort to obtain the Ohio hospital records, it is
difficult to fault him for not obtaining them when his investigator could
not find them. The only real shortcoming in Sheaffer's investigation to
which Bottoson can point is his decision not to pursue the California
medical records. Yet, even with the benefit of both the Ohio and California
records, Dr. Kirkland did not indicate that he would have testified that any
statutory mental mitigators were present. While the Capital Collateral
Representative's psychiatrist, Dr. Phillips, who examined Bottoson eleven
years after the murder, testified that both of the statutory mental
mitigators were present at the time of the crime, the trial judge was
entitled to discount his opinion.

[42] In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), the United States Supreme Court explained that in order
to maintain an ineffective assistance of counsel claim, the defendant has
the burden of satisfying a two-prong test:

[43] 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.

[44] The evidence presented below was conflicting. However, there was
competent, substantial evidence to support the judge's findings and
conclusions. Even if we assume some deficient performance on the part of
Sheaffer, we cannot say that the evidence raises a reasonable probability
that the result would have been different if Sheaffer had introduced mental
health testimony or called witnesses to describe this forty-one-year-old
man's troubled childhood.

[45] We affirm the denial of Bottoson's motion for postconviction relief.

[46] It is so ordered.

[47] GRIMES, C.J., and OVERTON, HARDING and WELLS, JJ., concur.

[48] KOGAN, J., concurs in part and dissents in part with an opinion, with
which SHAW and ANSTEAD, JJ., concur.

[49] NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED,
DETERMINED.

[50] KOGAN, J., concurring in part, dissenting in part.

[51] In the context of the penalty phase, the test for ineffectiveness is
that the appellant "must demonstrate that but for counsel's errors he would
have probably received a life sentence." Hildwin v. Dugger, 654 So. 2d 107,
109 (Fla. 1995) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.
Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984)). A "reasonable probability" is a
probability sufficient to undermine confidence in the outcome. Strickland,
466 U.S. at 694, 104 S. Ct. at 2068. Such a demonstration is made if
"counsel's errors deprived [Bottoson] of a reliable penalty phase
proceeding." Hildwin, 654 So. 2d at 110 (emphasis added). And on this
question, the failure to present available mitigating evidence is a relevant
concern along with the reasons for not doing so. Id. at 109-10. I
accordingly turn to the record both on direct appeal and in the 3.850
proceedings below.

[52] At the very outset of the penalty phase, Bottoson's counsel candidly
admitted to the trial court that he felt himself incompetent to proceed
further. While a court is not necessarily bound by such observations, *fn5 I
believe we nevertheless must consider any factual matters that may provide
support for counsel's opinion. On this point, the following colloquy took
place in the penalty phase: THE COURT: . . . Well, let me ask you this,
without Johnson, what witnesses do you have?

[53] MR. SHEAFFER: Zip. Zero. None.

. . . .

[54] I just, what I can't quite understand is, if he were a man of means and
weren't forced to -- well, not forced to, if he, if circumstances were not
such that he was required to have a Court appointed lawyer and the county
paying his costs and fees, I could effectively get anyone from anywhere in
the United States to come and speak in his behalf. Now, I can't and it all
boils down to the fact that the county, the State, the legislature has
placed restrictions on my ability to conduct a meaningful Defense on behalf
of Mr. Bottoson. I'm not saying that this Court has any hand in this
whatsoever; only interpreting the Statute and the Court has been most
generous in allowing me investigative tools in this case within the purview
of what the Statute allows, but the State of Florida has effectively at this
juncture prevented me from effectively representing Mr. Bottoson on the
penalty phase of this trial and it all boils down to economics.

[55] The statute mentioned by Mr. Sheaffer was section 925.036(4), Florida
Statutes (1980), which rigidly capped his fee at a total of $2,500.00 for
the 191.2 hours he spent on the case. As a result, he was paid about $13.00
an hour; and the rigid cap necessarily meant that his hourly fee would
decline with each additional hour of work.

[56] Contemporaneously with Bottoson's trial, this Court had held the
fee-cap to be both proper and a mandatory limit, Metropolitan Dade County v.
Bridges, 402 So. 2d 411 (Fla. 1981); Wakulla County v. Davis, 395 So. 2d 540
(Fla. 1981), though we reversed that determination only five years later by
creating exceptions for "unusual" cases. Makemson v. Martin County, 491 So.
2d 1109 (Fla. 1986), cert. denied, 479 U.S. 1043, 107 S. Ct. 908, 93 L. Ed.
2d 857 (1987). Then in 1989, we held that "capital cases by their very
nature can be considered extraordinary and unusual and arguably justify an
award of attorney's fees in excess of the current statutory maximum fee
cap." White v. Board of County Comm'rs, 537 So. 2d 1376, 1378 (Fla. 1989).
On this rationale White held unlawful a fee that amounted to about $26.00 an
hour in a capital case. See id. Other cases have held unlawful "capped" fees
amounting to about $19.00 an hour, Remeta v. State, 559 So. 2d 1132 (Fla.
1990), and to about $11.60 an hour. Lyons v. Metropolitan Dade County, 507
So. 2d 588 (Fla. 1987). The fee paid Sheaffer thus clearly fell within a
range condemned by the Makemson line of cases, even taking into account the
passage of time.

[57] Significantly, our cases have expressly premised the Makemson rule in
part on the constitutional right to effective assistance of counsel:

[58] Most fundamentally . . . [a mandatory fee cap] interferes with the
sixth amendment right to counsel. In interpreting applicable precedent and
surveying the questions raised in the case, we must not lose sight of the
fact that it is the defendant's right to effective representation rather
than the attorney's right to fair compensation which is our focus. We find
the two inextricably interlinked.

[59] Makemson, 491 So. 2d at 1112. As suggested by Makemson, id., a
mandatory cap interferes with the right to counsel in two senses: (1) It
creates an economic disincentive for appointed counsel to spend more than a
minimum amount of time on the case; and (2) It discourages competent
attorneys from agreeing to a court appointment, thereby diminishing the pool
of experienced talent available to the trial court.

[60] It is obvious that Mr. Sheaffer's comments in the penalty phase, quoted
above, placed him within the first of these categories; and the fact that he
was a young attorney unfamiliar with capital trials likewise placed him
within the second. The result was a clear and unmistakable deficiency in
performance -- one for which this Court must share blame through our
pre-Makemson cases. Indeed, the case for mitigation that Sheaffer failed to
present is of a most serious order, including even the "mental mitigators"
clearly provided by statute at the time of trial.

[61] The facts developed in the 3.850 proceeding below revealed that
Bottoson grew up under the control of a dominant mother who was obsessed
with religion and forced Bottoson to constantly read the Bible, pray, and
preach from street corners from the time he was seven to nine years of age.
Neighbors thought him strange, not merely because of his preaching but also
because he sometimes babbled incoherently and claimed to have visions and
conversation both with God and the devil. Bottoson suffered seizures so
severe his mother sometimes had to hold him down. He once lost his temper
and put his hand through a plate glass door, injuring himself badly. He was
unable to function in school, was mocked by other children, and lived
largely in a supernatural fantasy world.

[62] At age 19, Bottoson married and proceeded to have a large family, which
he was unable to support because of his failure to keep a steady job.
Nevertheless, he loved his children, and they loved him in return. In time,
Bottoson's emotional condition deteriorated further. In the summer of 1962
he attempted suicide inside his church, was taken to a psychiatric hospital,
and was diagnosed with an acute schizophrenic episode. Bottoson's marriage
failed shortly after his breakdown. Two other marriages came in quick
succession, but during the third Bottoson began hearing voices ordering him
to rob a bank. He made the effort, was quickly apprehended, and was
diagnosed as paranoid schizophrenic, latent type. Despite this finding, the
judge sentenced Bottoson to five years' imprisonment on the bank robbery,
even though a mental health expert recommended supervised probation.

[63] The third marriage failed around this time, and Bottoson married his
fourth wife. Together, they moved to the Orlando area, where the present
murder occurred. Bottoson continued to be dogged by the same problems of
marital discord, financial problems, and the reemergence of psychotic
symptoms.

[64] In the proceeding below, Dr. Robert Phillips testified that Bottoson
most likely has suffered from a psychosis known as schizoaffective or
schizotypal disorder for most of his adult life. This opinion was based on
an examination of Bottoson, a study of his medical records and psychiatric
history, the fact that he has a daughter who has suffered from
schizophrenia, and a history of treatment with antipsychotic medication. Dr.
Phillips expressed the opinion that Bottoson suffered from active psychosis
at the time of the killing -- which in itself would establish both of the
statutory mental mitigators. There also was expert testimony available that
Bottoson suffered visual and auditory hallucinations.

[65] In the hearings below, Sheaffer admitted paying little attention to the
penalty phase of trial. He made little effort to learn about Bottoson's
psychiatric problems or other mitigating evidence relevant to the penalty
phase. Two psychiatrists were appointed to assess Bottoson's competency to
stand trial, but Sheaffer failed to ask either to investigate the existence
of mental mitigators. In sum, he made no meaningful preparation whatsoever
for the penalty phase, but focused almost entirely on guilt-phase issues. I
emphasize, however, that the ultimate fault for this deficiency rests with
the fee-cap arrangement, about which Sheaffer himself had complained at
trial. And I cannot overlook the fact that this handicapping of the Sixth
Amendment right to counsel was created by the State of Florida itself and
this Court.

[66] Our law is quite clear that severe mental disturbance is a mitigating
factor of the most weighty order, Hildwin; Santos v. State, 629 So.2d 838
(Fla. 1994), and the failure to present it in the penalty phase when
available can constitute prejudicial ineffectiveness. Hildwin. Moreover I
find that the present case presents at least as serious a case for
mitigation and a far graver array of errors than those outlined in Hildwin.
In Hildwin, the omitted mitigating evidence tended to establish the mental
mitigators, just as they do here. But Hildwin was not coupled with the
Hitchcock error that exists here nor the serious impediment to effective
representation created by the fee cap applied to Sheaffer. The cumulative
impact of these errors on the ultimate result of the penalty phase can only
have been of a most serious order. I thus am constrained to view counsel's
deficiency as prejudicial here, because it resulted in a penalty phase that
is unreliable, Hildwin, compounded by a Hitchcock error.

[67] On that basis I believe relief must be granted. Accordingly, I would
vacate the death penalty and remand for a new penalty phase before a jury. I
otherwise concur with the majority.

[68] SHAW and ANSTEAD, JJ., concur.

[69] An Appeal from the Circuit Court in and for Orange County, Gary L.
Formet, Sr., Judge - Case No. CR79-4512 Div. 14

[70] James M. Russ of the Law Offices of James M. Russ, P.A., Orlando,
Florida; and Steven M. Goldstein, Special Counsel, Volunteer Lawyers'
Resource Center, Tallahassee, Florida, for Appellant

[71] Robert A. Butterworth, Attorney General; and Margene A. Roper and
Kenneth S. Nunnelley, Assistant Attorneys General, Daytona Beach, Florida,
for Appellee

***** BEGIN FOOTNOTE(S) HERE *****

[72] *fn1 Claims barred for failure to raise them on direct appeal are: (1)
that the trial court's instructions improperly diminished the jury's role
contrary to Caldwell v. Mississippi;, 472 U.S. 320, 105 S. Ct. 2633, 86 L.
Ed. 2d 231 (1985); (2) that the trial court erroneously instructed the jury
that seven votes were necessary for a recommendation of life imprisonment;
(3) that the State improperly used its peremptory challenges to remove
racial minorities from the jury venire; (4) that the record on direct appeal
was incomplete; (5) that Bottoson's confrontation rights were violated
because he was absent during certain proceedings; (6) that he was indicted
by an illegally constituted grand jury; (7) that his rights were violated by
a pattern of racial discrimination in the appointment of forepersons for
Orange County grand juries; (8) that the jury was improperly instructed on
the aggravating factor of avoiding arrest; (9) that the jury was improperly
instructed on the aggravating factor of heinous, atrocious, or cruel; (10)
that the jury was instructed as to aggravating factors not applicable to
this case; (11) that the jury was not instructed to avoid the doubling of
aggravating factors; (12) that Florida's "felony murder" aggravator is
unconstitutional; and (13) that judge and jury weighed invalid aggravators.

[73] *fn2 We find the following claims meritless on their face: (1) that the
trial court violated Bottoson's attorneyclient privilege by ordering trial
counsel to give the State his files for the hearing below notwithstanding
Bottoson's contention that trial counsel was ineffective, see Reed v. State,
640 So. 2d 1094 (Fla. 1994); (2) Bottoson's sentence of death was based upon
an unconstitutional prior conviction; (3) Bottoson was denied a competent
mental health examination; and (4) that the testimony of inmate Pertrell
Juniara was falsified and a related claim that the falsification violated
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
With respect to this claim, there was conflicting evidence concerning the
credibility of witnesses in the proceeding below, which the finder of fact
was entitled to resolve.

[74] *fn3 For much the same reason, we likewise find that the State did not
violate Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963), by purportedly withholding evidence about the dog handler's
qualifications. There is no reasonable probability that this evidence, even
assuming it should have been disclosed, would have led to a different
result. See Duest v. Dugger, 555 So. 2d 849 (Fla. 1990).

[75] *fn4 There is disagreement in the Eleventh Circuit Court of Appeals as
to the proper role of the strength of the aggravating circumstances in
determining whether or not a Hitchcock error is harmless. See Delap v.
Dugger, 890 F.2d 285, 306 n.23 (11th Cir. 1989), cert. denied, 496 U.S. 929,
110 S. Ct. 2628, 110 L. Ed. 2d 648 (1990). We believe that the strength of
the aggravating circumstances may be properly considered in determining
whether a Hitchcock error is harmless because our capital sentencing
procedure contemplates the weighing of aggravating and mitigating
circumstances. In this case, however, we have no difficulty in concluding
that the error was harmless predicated upon an analysis of the non-statutory
mitigating circumstances by themselves.

[76] *fn5 It is axiomatic that attorneys will not be heard to argue their
own ineffectiveness.

***** END FOOTNOTE(S) HERE *****

(c) 1996 VersusLaw, Inc., (206) 250-0142 http://www.versuslaw.com

19960513


1996.FL.576
~~~~~~~~~~~~~~~~~~~~~
01/18/96 LINROY BOTTOSON, v. STATE OF FLORIDA,


[Editor's note: footnotes (if any) trail the opinion]

[1] SUPREME COURT OF FLORIDA

[2] LINROY BOTTOSON, Appellant,

v.

[3] STATE OF FLORIDA, Appellee.

[4] No. 81,411

[5] 21 Fla. Law W. S 38

BLUE BOOK CITATION FORM: 1996.FL.121 (http://www.versuslaw.com)

[6] Date Decided: January 18, 1996, As Corrected

[7] An Appeal from the Circuit Court in and for Orange County, Gary L.
Formet, Sr., Judge - Case No. CR79-4512 Div. 14.

[8] APPELLATE PANEL:

[9] GRIMES, C.J., and OVERTON, HARDING and WELLS, JJ., concur. KOGAN, J.,
concurs in part and dissents in part with an opinion, with which SHAW and
ANSTEAD, JJ., concur.

[10] PER CURIAM.

[11] We have on appeal the judgment of the trial court denying Linroy
Bottoson, an inmate under sentence of death, relief requested under Florida
Rule of Criminal Procedure 3.850. We have jurisdiction. Art. V, § 3(b)(1),
(9), Fla. Const.

[12] Briefly stated, Bottoson kidnapped a postmistress and stole some money
orders. He held her captive for three days and at least part of the time
confined her in the trunk of his car. He then stabbed her sixteen times and
finally ran over her with his car. He admitted the murder to more than one
person. The jury recommended death, and a sentence of death was imposed.
Bottoson v. State, 443 So.2d 962 (Fla. 1983), cert. denied, 469 U.S. 873,
105 S. Ct. 223, 83 L. Ed. 2d 153 (1984).

[13] Most of Bottoson's claims are procedurally barred*fn1 or meritless.*fn2
However, there are three issues which require discussion.

[14] Bottoson contends that his trial counsel was ineffective for failing to
investigate the qualifications of a dog handler who testified for the State.
At the time of the trial, the witness was a nationally recognized witness in
dog handling, but several years later he was exposed as a charlatan who had
misrepresented himself and his dog's capabilities. We agree with the trial
court's finding that counsel's decision not to probe deeper into the
witness's qualifications was not substandard or deficient. Moreover, even if
it could be said that counsel was deficient, the evidence against Bottoson
was so overwhelming that there is no reasonable probability that the result
would have been different in the absence of such deficiency.*fn3

[15] Turning to the penalty phase, Bottoson contends that the jury
instructions at his trial violated Hitchcock v. Dugger, 481 U.S. 393, 107 S.
Ct. 1821, 95 L. Ed. 2d 347 (1987). There can be no doubt that a Hitchcock
error did in fact occur here because the jury was not given the "catch-all"
instruction. Rather, the trial court merely told jurors that mitigating
factors were those listed in the statute, which is an obvious violation of
Hitchcock. The only remaining question is whether the error was harmless in
keeping with the principles outlined in Delap v. Dugger, 513 So.2d 659, 662
(Fla. 1987). There, we stated:

[16] In Hitchcock the Supreme Court acknowledged that its reasoning was
subject to the harmless error analysis. We find such analysis to be
dispositive of the instant case. The defense was not limited in its
introduction of non-statutory mitigating evidence. While the instruction was
inadequate, the judge never explicitly told the jury that it could not
consider non-statutory mitigating evidence. In fact, the prosecutor went out
of his way to explain that such evidence could be considered.

[17] The present case does not differ. Here, as in Delap, the trial court
permitted the presentation of non-statutory mitigating evidence and did not
expressly tell the jury not to consider such evidence. Moreover, Bottoson's
prosecutor made the following remarks during closing arguments in the
penalty phase:

[18] Well, let's be fair to the Defendant. There were some other things. The
reason why this big blank space down here [on the jury form] is there and
that is because, ladies and gentlemen, under the law, you all can bring in
anything you want to by way of mitigation.

[19] From the case in chief, that is the evidence that you all already
heard, I think you heard some evidence of, in the statement that he gave to
the ministers, I'm sorry that this happened, demons got on me. You've heard
a lot of evidence even in this portion of the trial, the penalty phase that
Mr. Bottoson holds himself out as a minister and finally, in that statement,
that came out in the case in chief, ladies and gentlemen, Mr. Bottoson
thinks that fourteen years of Federal time is enough and he has that on him.
You may consider that in mitigation.

[20] From the Defense's witnesses that were brought in here, ladies and
gentlemen, I'm going to write these by numbers. Reverend Johnson comes in
here and I think what you can boil down his testimony to be saying is one or
more people in the courtroom have made mistakes.

[21] Well, for what it's worth, you can consider that, Mrs. Johnson says
that she feels Linroy Bottoson is not a sinner. You may consider that.

[22] . . . .

[23] Finally, ladies and gentlemen, in mitigation, you see something you've
seen, something from Mrs. Bottoson. There's a mother who loves her son and
you can consider that.

[24] We conclude beyond a reasonable doubt that the Hitchcock error was
harmless.

[25] The bulk of the ten-day hearing on the motion for postconviction relief
focused on Bottoson's claim that his lawyer, William Sheaffer, was
ineffective during the penalty phase of his trial. The judge addressed this
claim as follows:

[26] 16. Claim J, that Defendant's counsel was ineffective during the
penalty phase of the trial, must also be denied. It is alleged that counsel
failed to obtain Defendant's prior mental health records and failed to
interview family members and friends, specifically Mr. Bottoson's mother.
However, these claims are refuted by the record. Counsel attempted to obtain
Defendant's past psychiatric records but was unable to obtain them prior to
trial. Additionally, counsel had contacted Mr. Bottoson's mother prior to
trial.

[27] The most troubling claim for this Court was Mr. Bottoson's assertion
that counsel failed to present any mental disturbance evidence and certain
other mitigating evidence during the penalty phase. However, Defendant's
trial counsel stated that he had discussed Defendant's mental health with
two or three psychiatrists who had taken a complete past medical history.
Counsel averred that he did not receive any information which would have
indicated past mental illness or present mental illness that could either
serve as a defense or a mitigating factor in the penalty phase.
Additionally, to present this type of evidence to the jury would have been
incongruous with the defense asserted, i.e. Defendant had not committed the
crime. During the penalty phase argument, counsel again pointed out to the
jury the possibility that someone else had committed the crime. Certainly
this was a valid strategy.

[28] In any event, this Court has extensively reviewed this claim in light
of the entire record, and finds that even if counsel's performance may have
been deficient in some respects, any failure was not prejudicial pursuant to
Strickland, 466 U.S. at 668. The mitigating evidence now presented would not
outweigh or overcome the aggravating circumstances of this murder.
Defendant's background, child experiences (Defendant was 41 years old at the
time of trial) and religious eccentricities do not compare to the
aggravating factors that 1) Mr. Bottoson had been previously convicted of a
felony, 2) the murder occurred during the commission of a felony, 3) the
murder was committed to avoid arrest, and that 4) the murder was especially
heinous because of the kidnapping, long confinement and mode of killing of
the 74 year old victim. See generally Buenoano v. Dugger, 559 So.2d 1116
(Fla. 1990). Hence, there is no finding of prejudice under Strickland.

[29] The record of the post-conviction hearing reflects that Bottoson told
Sheaffer that he had been treated for depression in Ohio and in connection
with his prior robbery conviction in California. Sheaffer asked his
investigator to try to obtain the Ohio medical records. The investigator
contacted the applicable Ohio hospital but was advised that the records were
unavailable because they had been destroyed in a fire. Sheaffer said he took
no action on the California treatment because Bottoson had minimized the
episode.

[30] The post-conviction record further shows that Sheaffer had no personal
reservations concerning Bottoson's mental health, but in order to be certain
he had him examined by two psychiatrists. Although these were competency
examinations, the psychiatrists' reports necessarily discussed all aspects
of Bottoson's mental health. After reviewing these reports and talking with
one of the psychiatrists, Dr. Kirkland, Sheaffer concluded that the
presentation of mental health testimony would not be helpful to Bottoson.

[31] In addition, Sheaffer talked to Bottoson about witnesses who might be
called in the penalty phase. Bottoson suggested two ministers and a person
from the jail, but said there were no others whom he wanted to speak on his
behalf. Sheaffer called Bottoson's minister as well as the minister's wife,
and they both testified as to Bottoson's good character. Sheaffer also
called Bottoson's mother to testify that he had been a good son and to plead
for mercy.

[32] Dr. Kirkland, who also testified at the post-conviction hearing, said
that Bottoson had told him of the psychiatric treatments he had received in
Ohio and California. He was aware that Bottoson had experienced religious
hallucinations, but observed that psychiatrists are loath to say that this
would indicate that a person is abnormal or mentally ill. Dr. Kirkland was
then shown a card reflecting Bottoson's medical diagnosis in Ohio, obtained
by the Capital Collateral Representative's investigator from another
hospital to which Bottoson's records had been transferred. The card referred
to a 1962 diagnosis of acute schizophrenic episode with the words
"discharge, improved." Dr. Kirkland testified that in 1962 this referred to
a person who had had a short psychotic episode from which he had recovered.
He said that had he been provided with that document he would not have
changed his original evaluation. Dr. Kirkland said that the information on
the card together with the medical reports which the Capital Collateral
Representative was able to obtain from California would have led him to
conclude that Bottoson was a latent schizophrenic. He explained that this
was a term used to describe a schizophrenic who had gotten better.

[33] In view of Sheaffer's effort to obtain the Ohio hospital records, it is
difficult to fault him for not obtaining them when his investigator could
not find them. The only real shortcoming in Sheaffer's investigation to
which Bottoson can point is his decision not to pursue the California
medical records. Yet, even with the benefit of both the Ohio and California
records, Dr. Kirkland did not indicate that he would have testified that any
statutory mental mitigators were present. While the Capital Collateral
Representative's psychiatrist, Dr. Phillips, who examined Bottoson eleven
years after the murder, testified that both of the statutory mental
mitigators were present at the time of the crime, the trial judge was
entitled to discount his opinion.

[34] In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), the United States Supreme Court explained that in order
to maintain an ineffective assistance of counsel claim, the defendant has
the burden of satisfying a two-prong test:

[35] 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.

[36] The evidence presented below was conflicting. However, there was
competent, substantial evidence to support the judge's findings and
conclusions. Even if we assume some deficient performance on the part of
Sheaffer, we cannot say that the evidence raises a reasonable probability
that the result would have been different if Sheaffer had introduced mental
health testimony or called witnesses to describe this forty-one-year-old
man's troubled childhood.

[37] We affirm the denial of Bottoson's motion for postconviction relief.

[38] It is so ordered.

[39] GRIMES, C.J., and OVERTON, HARDING and WELLS, JJ., concur.

[40] KOGAN, J., concurs in part and dissents in part with an opinion, with
which SHAW and ANSTEAD, JJ., concur.

[41] CASE RESOLUTION

[42] We affirm the denial of Bottoson's motion for postconviction relief.

[43] It is so ordered.

[44] MINORITY OPINION

[45] KOGAN, J., concurring in part, dissenting in part.

[46] In the context of the penalty phase, the test for ineffectiveness is
that the appellant "must demonstrate that but for counsel's errors he would
have probably received a life sentence." Hildwin v. Dugger, 654 So.2d 107,
109 (Fla. 1995) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.
Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984)). A "reasonable probability" is a
probability sufficient to undermine confidence in the outcome. Strickland,
466 U.S. at 694, 104 S. Ct. at 2068. Such a demonstration is made if
"counsel's errors deprived [Bottoson] of a reliable penalty phase
proceeding." Hildwin, 654 So.2d at 110 (emphasis added). And on this
question, the failure to present available mitigating evidence is a relevant
concern along with the reasons for not doing so. Id. at 109-10. I
accordingly turn to the record both on direct appeal and in the 3.850
proceedings below.

[47] At the very outset of the penalty phase, Bottoson's counsel candidly
admitted to the trial court that he felt himself incompetent to proceed
further. While a court is not necessarily bound by such observations,*fn4 I
believe we nevertheless must consider any factual matters that may provide
support for counsel's opinion. On this point, the following colloquy took
place in the penalty phase:

[48] THE COURT: . . . Well, let me ask you this, without Johnson, what
witnesses do you have?

[49] MR. SHEAFFER: Zip. Zero. None.

[50] . . . .

[51] I just, what I can't quite understand is, if he were a man of means and
weren't forced to--well, not forced to, if he, if circumstances were not
such that he was required to have a Court appointed lawyer and the county
paying his costs and fees, I could effectively get anyone from anywhere in
the United States to come and speak in his behalf. Now, I can't and it all
boils down to the fact that the county, the State, the legislature has
placed restrictions on my ability to conduct a meaningful Defense on behalf
of Mr. Bottoson. I'm not saying that this Court has any hand in this
whatsoever; only interpreting the Statute and the Court has been most
generous in allowing me investigative tools in this case within the purview
of what the Statute allows, but the State of Florida has effectively at this
juncture prevented me from effectively representing Mr. Bottoson on the
penalty phase of this trial and it all boils down to economics.

[52] The statute mentioned by Mr. Sheaffer was section 925.036(4), Florida
Statutes (1980), which rigidly capped his fee at a total of $2,500.00 for
the 191.2 hours he spent on the case. As a result, he was paid about $13.00
an hour; and the rigid cap necessarily meant that his hourly fee would
decline with each additional hour of work.

[53] Contemporaneously with Bottoson's trial, this Court had held the
fee-cap to be both proper and a mandatory limit, Metropolitan Dade County v.
Bridges, 402 So.2d 411 (Fla. 1981); Wakulla County v. Davis, 395 So.2d 540
(Fla. 1981), though we reversed that determination only five years later by
creating exceptions for "unusual" cases. Makemson v. Martin County, 491
So.2d 1109 (Fla. 1986), cert. denied, 479 U.S. 1043, 107 S. Ct. 908, 93 L.
Ed. 2d 857 (1987). Then in 1989, we held that "capital cases by their very
nature can be considered extraordinary and unusual and arguably justify an
award of attorney's fees in excess of the current statutory maximum fee
cap." White v. Board of County Comm'rs, 537 So.2d 1376, 1378 (Fla. 1989). On
this rationale White held unlawful a fee that amounted to about $26.00 an
hour in a capital case. See id. Other cases have held unlawful "capped" fees
amounting to about $19.00 an hour, Remeta v. State, 559 So.2d 1132 (Fla.
1990), and to about $11.60 an hour. Lyons v. Metropolitan Dade County, 507
So.2d 588 (Fla. 1987). The fee paid Sheaffer thus clearly fell within a
range condemned by the Makemson line of cases, even taking into account the
passage of time.

[54] Significantly, our cases have expressly premised the Makemson rule in
part on the constitutional right to effective assistance of counsel:

[55] Most fundamentally . . . [a mandatory fee cap] interferes with the
sixth amendment right to counsel. In interpreting applicable precedent and
surveying the questions raised in the case, we must not lose sight of the
fact that it is the defendant's right to effective representation rather
than the attorney's right to fair compensation which is our focus. We find
the two inextricably interlinked.

[56] Makemson, 491 So.2d at 1112. As suggested by Makemson, id., a mandatory
cap interferes with the right to counsel in two senses: (1) It creates an
economic disincentive for appointed counsel to spend more than a minimum
amount of time on the case; and (2) It discourages competent attorneys from
agreeing to a court appointment, thereby diminishing the pool of experienced
talent available to the trial court.

[57] It is obvious that Mr. Sheaffer's comments in the penalty phase, quoted
above, placed him within the first of these categories; and the fact that he
was a young attorney unfamiliar with capital trials likewise placed him
within the second. The result was a clear and unmistakable deficiency in
performance--one for which this Court must share blame through our
pre-Makemson cases. Indeed, the case for mitigation that Sheaffer failed to
present is of a most serious order, including even the "mental mitigators"
clearly provided by statute at the time of trial.

[58] The facts developed in the 3.850 proceeding below revealed that
Bottoson grew up under the control of a dominant mother who was obsessed
with religion and forced Bottoson to constantly read the Bible, pray, and
preach from street corners from the time he was seven to nine years of age.
Neighbors thought him strange, not merely because of his preaching but also
because he sometimes babbled incoherently and claimed to have visions and
conversation both with God and the devil. Bottoson suffered seizures so
severe his mother sometimes had to hold him down. He once lost his temper
and put his hand through a plate glass door, injuring himself badly. He was
unable to function in school, was mocked by other children, and lived
largely in a supernatural fantasy world.

[59] At age 19, Bottoson married and proceeded to have a large family, which
he was unable to support because of his failure to keep a steady job.
Nevertheless, he loved his children, and they loved him in return. In time,
Bottoson's emotional condition deteriorated further. In the summer of 1962
he attempted suicide inside his church, was taken to a psychiatric hospital,
and was diagnosed with an acute schizophrenic episode. Bottoson's marriage
failed shortly after his breakdown. Two other marriages came in quick
succession, but during the third Bottoson began hearing voices ordering him
to rob a bank. He made the effort, was quickly apprehended, and was
diagnosed as paranoid schizophrenic, latent type. Despite this finding, the
judge sentenced Bottoson to five years' imprisonment on the bank robbery,
even though a mental health expert recommended supervised probation.

[60] The third marriage failed around this time, and Bottoson married his
fourth wife. Together, they moved to the Orlando area, where the present
murder occurred. Bottoson continued to be dogged by the same problems of
marital discord, financial problems, and the reemergence of psychotic
symptoms.

[61] In the proceeding below, Dr. Robert Phillips testified that Bottoson
most likely has suffered from a psychosis known as schizoaffective or
schizotypal disorder for most of his adult life. This opinion was based on
an examination of Bottoson, a study of his medical records and psychiatric
history, the fact that he has a daughter who has suffered from
schizophrenia, and a history of treatment with antipsychotic medication. Dr.
Phillips expressed the opinion that Bottoson suffered from active psychosis
at the time of the killing--which in itself would establish both of the
statutory mental mitigators. There also was expert testimony available that
Bottoson suffered visual and auditory hallucinations.

[62] In the hearings below, Sheaffer admitted paying little attention to the
penalty phase of trial. He made little effort to learn about Bottoson's
psychiatric problems or other mitigating evidence relevant to the penalty
phase. Two psychiatrists were appointed to assess Bottoson's competency to
stand trial, but Sheaffer failed to ask either to investigate the existence
of mental mitigators. In sum, he made no meaningful preparation whatsoever
for the penalty phase, but focused almost entirely on guilt-phase issues. I
emphasize, however, that the ultimate fault for this deficiency rests with
the fee-cap arrangement, about which Sheaffer himself had complained at
trial. And I cannot overlook the fact that this handicapping of the Sixth
Amendment right to counsel was created by the State of Florida itself and
this Court.

[63] Our law is quite clear that severe mental disturbance is a mitigating
factor of the most weighty order, Hildwin ; Santos v. State, 629 So.2d 838
(Fla. 1994), and the failure to present it in the penalty phase when
available can constitute prejudicial ineffectiveness. Hildwin. Moreover I
find that the present case presents at least as serious a case for
mitigation and a far graver array of errors than those outlined in Hildwin.
In Hildwin, the omitted mitigating evidence tended to establish the mental
mitigators, just as they do here. But Hildwin was not coupled with the
Hitchcock error that exists here nor the serious impediment to effective
representation created by the fee cap applied to Sheaffer. The cumulative
impact of these errors on the ultimate result of the penalty phase can only
have been of a most serious order. I thus am constrained to view counsel's
deficiency as prejudicial here, because it resulted in a penalty phase that
is unreliable, Hildwin, compounded by a Hitchcock error.

[64] On that basis I believe relief must be granted. Accordingly, I would
vacate the death penalty and remand for a new penalty phase before a jury. I
otherwise concur with the majority.

[65] SHAW and ANSTEAD, JJ., concur.

***** BEGIN FOOTNOTE(S) HERE *****

[66] *fn1 Claims barred for failure to raise them on direct appeal are: (1)
that the trial court's instructions improperly diminished the jury's role
contrary to Caldwell v. Mississippi ;, 472 U.S. 320, 105 S. Ct. 2633, 86 L.
Ed. 2d 231 (1985); (2) that the trial court erroneously instructed the jury
that seven votes were necessary for a recommendation of life imprisonment;
(3) that the State improperly used its peremptory challenges to remove
racial minorities from the jury venire; (4) that the record on direct appeal
was incomplete; (5) that Bottoson's confrontation rights were violated
because he was absent during certain proceedings; (6) that he was indicted
by an illegally constituted grand jury; (7) that his rights were violated by
a pattern of racial discrimination in the appointment of forepersons for
Orange County grand juries; (8) that the jury was improperly instructed on
the aggravating factor of avoiding arrest; (9) that the jury was improperly
instructed on the aggravating factor of heinous, atrocious, or cruel; (10)
that the jury was instructed as to aggravating factors not applicable to
this case; (11) that the jury was not instructed to avoid the doubling of
aggravating factors; (12) that Florida's "felony murder" aggravator is
unconstitutional; and (13) that judge and jury weighed invalid aggravators.

[67] *fn2 We find the following claims meritless on their face:

[68] (1) that the trial court violated Bottoson's attorney-client privilege
by ordering trial counsel to give the State his files for the hearing below
notwithstanding Bottoson's contention that trial counsel was ineffective,
see Reed v. State, 640 So.2d 1094 (Fla. 1994); (2) Bottoson's sentence of
death was based upon an unconstitutional prior conviction; (3) Bottoson was
denied a competent mental health examination; and (4) that the testimony of
inmate Pertrell Juniara was falsified and a related claim that the
falsification violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L.
Ed. 2d 215 (1963). With respect to this claim, there was conflicting
evidence concerning the credibility of witnesses in the proceeding below,
which the finder of fact was entitled to resolve.

[69] *fn3 For much the same reason, we likewise find that the State did not
violate Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215
(1963), by purportedly withholding evidence about the dog handler's
qualifications. There is no reasonable probability that this evidence, even
assuming it should have been disclosed, would have led to a different
result. See Duest v. Dugger, 555 So.2d 849 (Fla. 1990).

[70] MINORITY OPINIONFOOTNOTES

[71] *fn4 It is axiomatic that attorneys will not be heard to argue their
own ineffectiveness.

***** END FOOTNOTE(S) HERE *****

[Editor's note: Illustrations from the original opinion, if any, are
available in the print version]

Copyright 1996 VersusLaw, Inc. (206) 250-0142. http://www.versuslaw.com


19960118


1996.FL.121
~~~~~~~~~~~~~~~~~~~
01/10/97 LINROY BOTTOSON, v. HARRY K. SINGLETARY, JR.


BLUE BOOK CITATION FORM: 1997.FL.69 (http://www.versuslaw.com)

[Editor's note: footnotes (if any) trail the opinion]

[1] Supreme Court of Florida

[2] LINROY BOTTOSON,

[3] Petitioner,

v.

[4] HARRY K. SINGLETARY, JR., etc.,

[5] Respondent.

[6] No. 87,694

[7] January 9, 1997

[8] PER CURIAM.

[9] We review a petition for habeas corpus filed by Linroy Bottoson, a
prisoner under sentence of death. We have jurisdiction under article V,
section 3(b)(9) of the Florida Constitution.

[10] Bottoson was charged with the first-degree murder of Catherine
Alexander. During voir dire in Bottoson's 1981 murder trial, the State
exercised one of its peremptory challenges to strike juror Newton.
Bottoson's counsel immediately raised the following objection:

[11] Your Honor, for the record, I would like it to be known that Mr. Newton
was the only black juror that had been tentatively seated that the State has
just excused. I believe, again, that this is of [sic] deliberate exclusion
on the part of the Prosecution because the Defendant in this case is also a
black man, and, again, I don't believe we're getting a cross representation
of the citizens that will hear Mr. Bottoson's case as in this here group. I
move this Court to dismiss the panel and declare a mistrial.

[12] The trial judge summarily denied the defense counsel's motion. The
all-white jury that was impaneled found Bottoson guilty of first-degree
murder and recommended death. The trial judge imposed the death penalty.

[13] Bottoson's appellate counsel did not raise the jury issue in Bottoson's
direct appeal. In December of 1983, this Court affirmed Bottoson's
conviction and sentence. Bottoson v. State, 443 So. 2d 962 (Fla. 1983),
cert. denied, 469 U.S. 873, 105 S. Ct. 223, 83 L. Ed. 2d 153 (1984). This
Court issued its decision in State v. Neil, 457 So. 2d 481 (Fla. 1984),
seven months after we had denied the motion for rehearing in Bottoson's
direct appeal. The United States Supreme Court denied Bottoson's petition
for certiorari four days later.

[14] In Neil, this Court distinguished Swain v. Alabama, 380 U.S. 202, 85 S.
Ct. 824, 13 L. Ed. 2d 759 (1965), and decided for the first time to permit
inquiry into whether a party was discriminating on a racial basis through
its exercise of peremptory challenges. We explained:

[15] The initial presumption is that peremptories will be exercised in a
nondiscriminatory manner. A party concerned about the other side's use of
peremptory challenges must make a timely objection and demonstrate on the
record that the challenged persons are members of a distinct racial group
and that there is a strong likelihood that they have been challenged solely
because of their race. If a party accomplishes this, then the trial court
must decide if there is a substantial likelihood that the peremptory
challenges are being exercised solely on the basis of race. If the court
finds no such likelihood, no inquiry may be made of the person exercising
the questioned peremptories. On the other hand, if the court decides that
such a likelihood has been shown to exist, the burden shifts to the
complained-about party to show that the questioned challenges were not
exercised solely because of the prospective jurors' race.

[16] Id. at 486-87 (footnote omitted).

[17] In 1985, Bottoson filed a motion for post-conviction relief, raising
the question of whether the State improperly used its peremptory challenges
to remove racial minorities from the venire. This motion was denied in 1993,
and this Court affirmed the trial court's denial of relief in January of
1996. Bottoson v. State, 674 So. 2d 621 (Fla. 1996). We found that
Bottoson's Neil claim was procedurally barred because he had failed to raise
the issue in his direct appeal. Bottoson now files this petition for habeas
corpus, asserting ineffective assistance of appellate counsel for failing to
raise the Neil issue in his direct appeal.

[18] Bottoson argues that the issue of the discriminatory use of a
peremptory challenge had been preserved in the trial court and that his
appellate counsel was ineffective for failing to argue this issue. Even
though this Court's decision in Neil had not yet been decided, Bottoson says
that appellate counsel should have anticipated it because by that time the
courts of three other states had made decisions comparable to Neil. He also
says that our decision in Neil was issued at a time when his petition for
certiorari from our opinion affirming his conviction and sentence was still
pending in the United States Supreme Court. Thus, he argues that counsel was
also ineffective for failing to petition this Court to withdraw its mandate
before the United States Supreme Court denied his petition for certiorari.

[19] The State argues that the ineffectiveness claim is not a basis for
relief because the peremptory challenge claim was not preserved for review.
See State v. Castillo, 486 So. 2d 565, 565 (Fla. 1986) ("A timely objection
must be raised and the state must be given an opportunity to demonstrate
that the use of a peremptory challenge was not motivated solely by race.").
The State goes on to point out that it was apparent from the voir dire that
the State exercised its challenge because juror Newton said he was reluctant
to impose the death penalty. In view of our disposition of this petition, we
need not decide the merits of these contentions. For purposes of this
opinion, we shall assume that the ineffectiveness claim was preserved for
appellate review and that Bottoson would have been entitled to a new trial
had Neil been decided at the time his appeal was before this Court.

[20] We cannot say that Bottoson's appellate counsel was ineffective for
failing to anticipate our decision in Neil. The governing case law at the
time was Swain, in which the United States Supreme Court had held that
before a defendant could obtain relief from the State's exclusion of blacks
from trial juries through peremptory challenges it would be necessary to
demonstrate that such exclusion was occurring "in case after case, whatever
the circumstances, whatever the crime and whoever the defendant or victim
may be." Swain, 380 U.S. at 837. The United States Supreme Court's decision
in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986),
which embraced the concept of Neil, was not decided until two years after
our opinion in Neil. See Pitts v. Cook, 923 F.2d 1568, 1574 (11th Cir. 1991)
(no ineffectiveness for not raising Batson v. Kentucky claim before release
of that decision).

[21] Moreover, Bottoson's appellate counsel was not ineffective for not
moving this Court to recall its mandate when the Neil decision was decided
while his petition for certiorari was still pending before the United States
Supreme Court. Even if counsel had moved quickly enough to file such a
motion within the four days that Bottoson's petition for certiorari remained
pending, this Court would have denied his motion. Section 25.051, Florida
Statutes (1983), mandated that this Court "shall hold two terms in each year
. . . commencing respectively on the first day of January and July." As we
made clear in State Farm Mutual Automobile Insurance Co. v. Judges of the
District Court of Appeal, 405 So. 2d 980, 982-83 (Fla. 1981), "[a]n
appellate court's power to recall its mandate is limited to the term during
which it was issued." We denied rehearing on Bottoson's direct appeal on
February 7, 1984, and the opinion in Neil was not released until September
27, 1984. Because our January term of court had terminated before Neil was
issued, we would not have been in a position to recall the mandate.

[22] Accordingly, we deny Bottoson's petition for habeas corpus.

[23] It is so ordered.

[24] OVERTON, SHAW, GRIMES, HARDING and WELLS, JJ., concur.

[25] KOGAN, C.J. and ANSTEAD, J., concur in result only.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED,
DETERMINED.

[26] Original Proceeding - Habeas Corpus

[Editor's note: Illustrations from the original opinion, if any, are
available in the print version]

Copyright 1997 VersusLaw, Inc., (206) 250-0142 http://www.versuslaw.com

19970110


1997.FL.69