| [1] | SUPREME COURT OF FLORIDA |
| [2] | No. 77,708 |
| [3] | 1992.FL.42718 <http://www.versuslaw.com>; 597
So. 2d 262; 17 Fla. Law W. S 176 |
| [4] | decided: March 12, 1992. |
| [5] | WILLIAM H. KELLEY, PETITIONER, v. RICHARD L. DUGGER, ETC., RESPONDENT. |
| [6] | Original Proceeding - Habeas Corpus |
| [7] | Larry Helm Spalding, Capital Collateral Representative, Tallahassee,
Florida; Billy H. Nolas and Julie D. Naylor, Ocala, Florida; and Barry P.
Wilson of Zalkind & Sheketoff, Boston, Massachusetts, for
Petitioner. |
| [8] | Robert A. Butterworth, Attorney General and Robert J. Krauss,
Assistant Attorney General, Tampa, Florida, for Respondent. |
| [9] | Shaw, C.j. and Overton, Barkett, Grimes, Kogan and Harding, JJ.,
concur. McDONALD, J., recused. |
| [10] | Author: Per Curiam |
| [11] | Per Curiam. |
| [12] | William H. Kelley, a prisoner under sentence of death,
petitions this Court for a writ of habeas corpus. We have jurisdiction
under article V, section 3(b)(9)
of the Florida Constitution. |
| [13] | Kelley was convicted of first-degree murder for the 1966
contract killing of Charles Von Maxcy. Kelley was hired to
kill Maxcy by Mrs. Maxcy's lover, John Sweet. The trial court followed the
jury's recommendation and sentenced Kelley to death. This
Court affirmed the conviction and sentence on direct appeal.
Kelley v. State, 486 So.2d 578 (Fla.),
cert. denied, 479 U.S. 871, 93 L. Ed. 2d 169, 107 S. Ct. 244 (1986). His
subsequent petition for relief pursuant to Florida Rule of Criminal
Procedure 3.850 was denied by the circuit court after an evidentiary
hearing, and this Court affirmed. Kelley v. State, 569 So.2d 754 (Fla. 1990). |
| [14] | Kelley raises the following claims in this petition: (1)
his appellate counsel was ineffective; (2) the application of the death
penalty statute to this crime is ex post facto; and (3) the aggravating
factors of pecuniary gain and cold, calculated, and premeditated are
overbroad. |
| [15] | We first address Kelley's claim of ineffective
assistance. In evaluating this type of claim, this Court must determine
"first, whether the alleged omissions are of such magnitude as to
constitute a serious error or substantial deficiency falling measurably
outside the range of professionally acceptable performance and, second,
whether the deficiency in performance compromised the appellate process to
such a degree as to undermine confidence in the correctness of the
result." Pope v. Wainwright, 496 So.2d 798, 800 (Fla.
1986), cert. denied, 480 U.S. 951, 94 L. Ed. 2d 801, 107 S. Ct. 1617
(1987). |
| [16] | Kelley first claims that his appellate counsel was
ineffective for failing to argue that the prosecutor made several improper
comments during closing argument.*fn1
None of these comments were objected to at trial. Appellate counsel cannot
be ineffective for failing to raise claims which were not preserved due to
trial counsel's failure to object. See e.g., Roberts v. State,
568 So.2d 1255, 1261 (Fla. 1990); Suarez v. Dugger, 527 So.2d 190, 193 (Fla. 1988); Bertolotti v. Dugger,
514 So.2d 1095, 1097 (Fla. 1987). |
| [17] | Kelley argues that trial counsel failed to object
because the grounds were unknown to him at the time due to the State's
failure to disclose material exculpatory evidence. We fail to see the
relevance of the reason for trial counsel's failure to object. The fact
remains that these claims were not preserved at trial, for whatever
reason, and appellate counsel therefore acted reasonably in not including
these claims on direct appeal. |
| [18] | We reject Kelley's argument that this Court's previous
holding that this claim should have been raised on direct appeal is
dispositive. See Kelley, 569 So.2d at 756. The fact that we held that the claim was not appropriately
raised in a motion for post-conviction relief, and instead should have
been raised on direct appeal, does not imply in any way that appellate
counsel necessarily was ineffective for failing to raise it at that time.
As we stated previously, appellate counsel was not ineffective because the
claim was already barred by trial counsel's failure to
object. |
| [19] | Furthermore, even if this claim had been raised on direct appeal, we
would have found it to be without merit.*fn2
All of Kelley's arguments in this petition are refuted by
this Court's decision on his 3.850 appeal.*fn3
Basically, Kelley's argument on this issue is an attempt to
relitigate his 3.850 motion. We refuse to revisit these issues simply
because they are now raised under the guise of an ineffective assistance
claim. |
| [20] | Kelley's next asserted omission on the part of appellate
counsel relates to alleged misconduct by the state attorney in coaching a
witness during cross-examination. Abe Namia, a private detective who was
originally hired by Sweet's defense attorney,*fn4
testified that in 1967 Sweet admitted to him that he had hired
Kelley to kill Maxcy. On cross-examination, the defense
attempted to show that Namia was making up this story, presumably to
collect reward money. Namia was confronted with reports he had made during
his investigation, none of which mentioned Sweet's confession. At this
point, the prosecutor asked that a recess be taken in order to allow him
to review these reports. Kelley now claims that appellate
counsel was ineffective for failing to argue on appeal that during this
time the State improperly consulted with the witness and helped him to
prepare for cross-examination. He bases this claim on the prosecutor's
statements after the recess that he and Namia had conferred and Namia
identified the papers as reports he had prepared, although he did not know
whether there were additional reports. Again, there was no objection by
trial counsel at this time, and the issue of any unethical preparation of
the witness was therefore not preserved for review. Furthermore,
Kelley has made no showing that the prosecutor advised Namia
as to how to testify, but only that he examined reports that had not
previously been disclosed to the State and that were now being used to
impeach its witness. There is no reason to believe that any misconduct
occurred during the recess. Since this claim was both unpreserved and
unsubstantiated, counsel cannot have been ineffective for failing to raise
it. |
| [21] | Kelley next argues that his appellate counsel was
ineffective for failing to argue that his robbery conviction was too
remote in time to be considered in aggravation. Even if this claim had
been raised on direct appeal, it would have been rejected. This Court has
subsequently held that because the death penalty statute is silent as to
the time or place of the previous conviction, even a conviction remote in
time may properly be considered as aggravating. Thompson v. State, 553 So.2d 153, 156 (Fla. 1989), cert. denied, 110 S.
Ct. 2194 (1990). |
| [22] | Finally, Kelley claims that his appellate counsel should
have argued that the jury instructions improperly shifted the burden of
proof to Kelley to prove that life was the appropriate
punishment. Again, trial counsel did not preserve this issue for appeal by
objecting. We also note that the instructions were not erroneous. See
Bertolotti v. Dugger, 883 F.2d 1503, 1524-25 (11th Cir. 1989), cert.
denied, 111 L. Ed. 2d 804, 110 S. Ct. 3296 (1990). |
| [23] | We therefore conclude that Kelley has shown no basis for
a finding that the performance of his appellate counsel was deficient in
any manner, or that any alleged deficiency was prejudicial, and we reject
his ineffectiveness claim. |
| [24] | We turn now to Kelley's argument that the application of
the death penalty statute to a crime committed before its enactment in its
present state is ex post facto. Although this claim was specifically
rejected by the Supreme Court in Dobbert v. Florida, 432 U.S. 282, 53 L.
Ed. 2d 344, 97 S. Ct. 2290 (1977), Kelley argues that the
issue should be reconsidered because Dobbert has been overruled by Miller
v. Florida, 482 U.S. 423, 96 L. Ed. 2d 351, 107 S. Ct. 2446 (1987).*fn5 |
| [25] | The Miller decision did not change the ex post facto analysis, as
Kelley contends, nor did it in any way imply that Dobbert
was no longer good law. Indeed, the Court in Miller referred to Dobbert
several times as an example of a statutory change which did not violate ex
post facto standards. Accordingly, we reject Kelley's
argument that the ex post facto issue should be revisited. |
| [26] | Finally, Kelley argues that the aggravating factors of
pecuniary gain and cold, calculated, and premeditated*fn6
are improperly and overbroadly employed. Kelley bases this
claim on Maynard v. Cartwright, 486 U.S. 356, 100 L. Ed. 2d 372, 108 S.
Ct. 1853 (1988), decided after the direct appeal in this case. This Court
has rejected this claim in other cases, and we summarily reject it here as
well. See, e.g., Brown v. State, 565 So.2d 304, 308
(Fla.), cert. denied, 112 L. Ed. 2d 547, 111 S. Ct. 537 (1990); Jones v.
Dugger, 533 So.2d 290, 292-93 (Fla.
1988). |
| [27] | For the foregoing reasons, Kelley's petition for a writ
of habeas corpus is denied. |
| [28] | It is so ordered. |
| [29] | SHAW, C.J. and OVERTON, BARKETT, GRIMES, KOGAN and HARDING, JJ.,
concur. |
| [30] | McDONALD, J., recused. |
|
| |
| Opinion Footnotes | |
|
| |
| [31] | *fn1
Kelly contends that the following arguments were improper: (1) that Kaye
Carter, a State witness, could not be expected to be able to identify
Kelley seventeen years after spending a few hours with him;
(2) that it was very unlikely that Kelley's information
about the homicide was gleaned from newspaper articles; and (3) that Sweet
did not have to "give them [the authorities] Kelly" in order to get
immunity for Massachusetts crimes. |
| [32] | *fn2
We therefore also reject Kelly's claim that these comments constituted
fundamental error. |
| [33] | *fn3
As to Kaye Carter's identification, although trial counsel did not know
that Carter had been unable to identify Kelley's photograph
during the police investigation, the fact that she was able to identify
his picture at Sweet's second trial negates Kelley's
argument that the prosecutor attempted to mislead the jury by stating that
it was the passage of time which caused Carter to be unable to remember
Kelley during his trial. See Kelley v. State, 569 So.2d 754, 757-58 (Fla. 1990). As to the
newspaper articles, although trial counsel was not specifically aware that
the prosecutor had been contacted by a reporter, counsel was aware of the
possibility of the existence of articles, as they were mentioned in
cross-examination, and could have discovered them. See id. at 759-60. The
prosecutor could reasonably comment on the unlikelihood of
Kelley's knowledge being acquired through the media since
there was no evidence introduced that Kelley had actually
read any of these articles. As to Sweet's immunity, there was "no evidence
to support the inference that Sweet's Massachusetts immunity was
contingent upon his testimony in [Kelley's] Florida trial,"
and the prosecutor could properly comment on that fact. See id. at
758. |
| [34] | *fn4
Sweet was tried twice for the Maxcy murder. The first trial resulted in a
mistrial, and the second ended in a conviction which was overturned on
appeal. |
| [35] | *fn5
In Miller, the Court found that a change in the sentencing guidelines
which increased the presumptive sentence for the defendant's crime was a
substantive change which was more onerous to the defendant and therefore
violated the ex post facto clause as applied to crimes committed before
the change. Miller v. Florida, 482 U.S. 423, 96 L. Ed. 2d 351, 107 S. Ct.
2446 (1987). In contrast, the Court in Dobbert found that a change in the
death penalty statute was a procedural change which was not onerous to the
defendant; the change in sentencing procedures altered the method employed
to determine the appropriate sentence, but did not change the quantum of
punishment. Dobbert v. Florida, 432 U.S. 282, 294, 53 L. Ed. 2d 344, 97 S.
Ct. 2290 (1977). |
| [36] | *fn6
§ 921.141(5)(f), (i), Fla. Stat.
(1983). |