COMES NOW, Respondent, MICHAEL W. MOORE, by and through the

undersigned Assistant Attorney General, and hereby responds to

the Petition for Writ of Habeas Corpus filed in the above-styled

case. Respondent respectfully submits that the petition should

be denied, and states as grounds therefor:

The facts of this case are recited in this Court’s initial

opinion, Finney v. State, 660 So. 2d 674, 678-79 (Fla. 1995),

cert. denied, 516 U.S. 1096 (1996):

According to the testimony at trial,

Sandra Sutherland was discovered stabbed to

death in her apartment shortly after 2 p.m.

on January 16, 1991. The victim was found

lying face down on her bed. Her ankles and

wrists were tied and she had been gagged.

On a nightstand near the bed was an open jar

2

of face cream. The lid was lying next to

the jar. The victim’s bedroom had been

ransacked, the contents of her purse had

been dumped on the floor, and her VCR was

missing.

According to the medical examiner the

cause of death was multiple stab wounds to

the back. Of the thirteen stab wounds, all

but one penetrated the lungs causing

bleeding and loss of oxygen, ultimately

resulting in death. No bruises or other

trauma was observed.

Numerous fingerprints were gathered from

the victim’s apartment, including prints

from a piece of paper with German writing

and from the jar on the nightstand.

Fingerprints also were taken from the

missing VCR, which was located at a local

pawn shop. Pawn shop records indicated that

the VCR was brought in on January 16 at 1:42

p.m. by Charles W. Finney for a loan of

thirty dollars. Finney’s fingerprints

matched prints taken from the pawn ticket,

the VCR, the jar lid, and the paper with

German writing.

After it was determined that Finney had

pawned the victim’s VCR, Detective Bell of

the Tampa Police Department interviewed

Finney on the afternoon of January 30, 1991.

Finney told Bell that he knew the victim due

to the fact that they had lived near each

other in the same apartment complex. Finney

told Bell that he had seen the victim twice

since she moved to another apartment in the

complex. Once, he had talked to her about

putting a screened porch on the back of her

new apartment and then about two months

prior to the murder he talked to her by the

mailboxes at the complex. When asked about

his whereabouts on the day of the murder,

Finney told Detective Bell that he was home

sick all day and never left his apartment.

Upon being confronted with the fact that he

3

had pawned the victim’s VCR, Finney told the

detective he found it near the dumpster when

he took out the garbage and then pawned it.

Finney called a witness who testified

that the day before the murder he saw the

victim arguing with a white male near the

mailboxes at the apartment complex. Another

defense witness testified that around 10

a.m. on the day of the murder, he saw

William Kunkle, who worked as a carpenter at

the apartment complex, come out of the

victim’s apartment. According to the

witness, when Kunkle saw him, Kunkle came

out of the door very quickly, locked the

door with a key, and walked around the

corner. The witness’s girlfriend offered

similar testimony as to Kunkle’s conduct.

In rebuttal, Kunkle testified that on

January 16 he worked in the building next

door to Ms. Sutherland’s apartment, but had

not been in her apartment that day. He

denied ever having any conversation or

interaction with the victim. The

fingerprint examiner also testified during

rebuttal that Kunkle’s fingerprints did not

match those found in the victim’s apartment.

The defense sought to recall the medical

examiner, Dr. Diggs, to testify that the

crime scene was consistent with both a

consensual sexual bondage situation and a

situation where the victim consented to

being bound and gagged out of fear. The

State objected to the testimony as

speculative. During proffer, Dr. Diggs told

the court that whether a bondage situation

was consensual was not something that a

medical examiner would typically testify

about or try to determine. The trial judge

disallowed any testimony about the

circumstances being consistent with sexual

bondage, but allowed Dr. Diggs to testify

concerning the probable positions of the

victim and of the attacker and about the

fact that there were no defensive wounds or

the direct appeal of Finney’s convictions and sentences, Florida

Supreme Court # 80,990; "PC-R." will be used to refer to the

record in the postconviction appeal, Florida Supreme Court

#SC00-1351.

4

other signs of a struggle.

Finney took the stand in his own

defense. He testified that he had lived

near Ms. Sutherland in the same apartment

complex until she moved about eight months

prior to the murder. A couple of months

after she moved, Ms. Sutherland talked to

him about screening in the patio of her new

apartment. At that time, she handed him a

piece of paper to write down measurements

but took the paper back. Finney testified

that he returned about a week or two later

but Ms. Sutherland had decided not to screen

the patio. On that occasion he was in the

victim’s apartment, helped her move boxes

and took various items out of the boxes.

According to Finney the last time he saw Ms.

Sutherland was a day or two before the

murder. She was coming out of her apartment

early one morning. She came over to his car

and they talked. He further testified that

he found the VCR near the dumpsters at the

complex and had pawned it the same day for

pocket cash. He stated that he did not

steal the VCR and that he did not kill Ms.

Sutherland.

Finney was convicted as charged with first degree murder,

In the penalty phase, the State presented testimony about

Finney’s prior violent felony conviction, and the defense

presented three witness: Finney’s common law wife, Tammy

Gallimore; a close friend and co-worker, Joseph Williams; and a

5

forensic psychologist, Dr. Michael Gamache (DA-R. V6/ 820-892).

These witnesses described Finney’s deprived background, positive

character traits, strong work ethic, military service, and close

relationship with his daughter.

The jury recommended a sentence of death by a vote of nine

to three, and on November 10, 1992, the judge followed the

recommendation, finding three aggravating circumstances: prior

violent felony conviction; murder committed for pecuniary gain;

and heinous, atrocious, or cruel (DA-R. V1/ 153-57; V6/ 921).

The judge also found the following nonstatutory mitigating

factors: 1) Finney’s contributions to the community as

evidenced by his work and military history; 2) Finney’s

positive character traits; 3) Finney would adjust well to a

prison setting and had potential for rehabilitation; 4) Finney

had a deprived childhood; and 5) Finney’s bonding with and love

for his daughter (DA-R. V1/ 153-57). On appeal, Finney was

represented by Assistant Public Defender Steven L. Bolotin, and

alleged the following errors:

ISSUE I

THE CIRCUMSTANTIAL EVIDENCE IS INSUFFICIENT

TO SUSTAIN APPELLANT’S CONVICTIONS OF FIRST

DEGREE MURDER, ARMED ROBBERY, AND DEALING IN

STOLEN PROPERTY.

A. The Evidence is Insufficient to

6

Prove Identity

B. The Evidence is Insufficient to

Prove Premeditation

C. The Evidence is Insufficient to

Prove Felony Murder and Armed Robbery

D. The Evidence is Insufficient to

Prove the Aggravating Factor that the

Homicide was Committed for Pecuninary

Gain

ISSUE II

THE TRIAL COURT ERRED IN REFUSING TO ALLOW

THE DEFENSE TO PRESENT THE TESTIMONY OF DR.

DIGGS THAT HIS OBSERVATIONS AT THE SCENE

WERE CONSISTENT WITH AN ACT OF SEXUAL

BONDAGE WHICH ESCALATED INTO A HOMICIDE.

ISSUE III

THE TRIAL COURT ERRED IN OVERRULING THE

DEFENSE OBJECTION TO APPELLANT’S BEING

SHACKLED DURING THE PENALTY PHASE OF HIS

TRIAL, WHERE THERE WAS NO APPARENT REASON

(MUCH LESS A NECESSITY) FOR THE SHACKLING,

AND WHERE THE COURT MERELY DEFERRED TO THE

WISHES OF THE SHERIFF’S PERSONNEL.

ISSUE IV

THE TRIAL COURT ERRED IN OVERRULING DEFENSE

OBJECTIONS TO THE TESTIMONY OF JUDY BAKER

AND TO THE PROSECUTOR’S CLOSING ARGUMENT,

WHERE THE INFLAMMATORY AND PREJUDICIAL

IMPACT OF HER TESTIMONY OUTWEIGHED ITS

PROBATIVE VALUE; ESPECIALLY SINCE THE TRIAL

COURT TOOK JUDICIAL NOTICE AND INSTRUCTED

THE JURY ON THE FACT OF THE PRIOR

CONVICTIONS, AND THE INVESTIGATING OFFICER

WAS AVAILABLE TO TESTIFY AS TO THE

7

CIRCUMSTANCES.

ISSUE V

THE TRIAL COURT ERRED IN REFUSING TO ALLOW

THE DEFENSE TO CROSS-EXAMINE JUDY BAKER AS

TO HER DESCRIPTION OF HER ATTACKER.

ISSUE VI

THE TRIAL COURT ERRED IN REFUSING TO

INSTRUCT THE JURY ON SPECIFIC NON-STATUTORY

MITIGATING CIRCUMSTANCES INCLUDING (1)

APPELLANT’S DEPRIVED CHILDHOOD, (2) HIS

CONTRIBUTIONS TO HIS COMMUNITY AND TO

SOCIETY, (3) HIS POTENTIAL FOR

REHABILITATION AND POSITIVE ADJUSTMENT WITH

THE PRISON SETTING, AND (4) HIS STRONG

BONDING WITH HIS DAUGHTER. THE HARMFUL

EFFECT OF THE ERROR WAS COMPOUNDED BY THE

PROSECUTOR’S MISLEADING ARGUMENT TO THE

JURY.

ISSUE VII

THE TRIAL COURT ERRED IN INSTRUCTING ON AND

FINDING AGGRAVATING FACTORS, AND THE

SENTENCE OF DEATH IS DISPROPORTIONATE.

A. Pecuniary Gain

B. Prior Violent Felony

C. Especially Heinous, Atrocious or

Cruel

D. Proportionality

This Court affirmed the convictions and sentence of death.

Finney v. State, 660 So. 2d 674 (Fla. 1995), cert. denied, 516

8

U.S. 1096 (1996). An amended motion for postconviction relief

was filed in April, 1999, and was summarily denied (PC-R. V1/

133-162; V3/ 335-340). Finney’s petition for habeas relief in

this Court was timely filed contemporaneously with his brief in

the appeal of the denial of his motion for postconviction

relief.

The bulk of Finney’s habeas petition is premised on several

claims of ineffective assistance of appellate counsel. Such a

claim requires an evaluation of whether counsel’s performance

was so deficient that it fell outside the range of

professionally acceptable performance and, if so, whether the

deficiency was so egregious that it undermined confidence in the

correctness of the result. Thompson v. State, 759 So. 2d 650,

660 (Fla. 2000); Groover v. Singletary, 656 So. 2d 424, 425

(Fla. 1995); Byrd v. Singletary, 655 So. 2d 67, 68-69 (Fla.

1995), cert. denied, 516 U.S. 1175 (1996). A review of the

record demonstrates that neither deficiency nor prejudice has

been shown in this case. The record reflects that appellate

counsel acted as a capable advocate, asserting seven issues for

judicial review in a 94-page brief.

Finney’s arguments are based on appellate counsel’s alleged

9

failure to raise a number of issues, each of which will be

addressed in turn. However, none of the issues now asserted

would have been successful if argued in Finney’s direct appeal.

Therefore, counsel was not ineffective for failing to present

these claims. Groover, 656 So. 2d at 425; Chandler v. Dugger,

634 So. 2d 1066, 1068 (Fla. 1994) (failure to raise

nonmeritorious issues is not ineffective assistance of appellate

counsel). No extraordinary relief is warranted because several

of Finney’s current arguments were not preserved for appellate

review and, even if considered, no reversible error could be

demonstrated. See, Rutherford v. Moore, 25 Fla. L. Weekly S891

(Fla. Oct. 12, 2000)(while habeas petitions are proper vehicle

to advance claims of ineffective assistance of appellate

counsel, such claims may not be used to camouflage issues that

should have been raised on direct appeal or in a postconviction

motion). See also Thompson v. State, 759 So. 2d 650 (Fla.

2000); Teffeteller v. Dugger, 734 So. 2d 1009 (Fla. 1999);

Hardwick v. Dugger, 648 So. 2d 100 (Fla. 1994); Breedlove v.

Singletary, 595 So. 2d 8 (Fla. 1992). As noted above, to obtain

relief it must be shown that appellate counsel’s performance was

both deficient and prejudicial. The failure to raise a

meritless issue will not render counsel’s performance

ineffective, and this is generally true as to issues that would

10

have been found to be procedurally barred had they been raised

on direct appeal. Rutherford.

Claim I: Whether appellate counsel rendered ineffective

assistance of counsel by failing to raise the

issue of the trial court allowing, over defense

objection, the admission into evidence of certain

photographs of the victim, Sandra Sutherland.

Finney first alleges that appellate counsel was ineffective

for failing to raise an issue in the direct appeal challenging

the admission of crime scene photographs. The record reflects

that during the testimony of crime scene technician Kathleen

Kunde, the State offered eight photographs for her

identification (DA-R. V3/ 325). They were all pictures of the

victim taken by Ms. Kunde (DA-R. V3/ 325). When the State

offered them for admission, the judge asked the attorneys to

approach the bench (DA-R. V3/ 325). The judge indicated that

she had assumed the defense was going to object, and defense

counsel remarked that although she didn’t like the photographs

being admitted, "[q]uite candidly, I have researched, and I

can’t come up with a legal reason to avoid it" (DA-R. V3/ 326).

The judge then asked the State how many pictures had been taken,

and after the witness indicated there were maybe one or two

more, defense counsel asked the Court to consider if it was

"necessary to introduce all of these photographs" (DA-R. V3/

11

326). There followed a discussion as to how many pictures had

been taken at the morgue, and the prosecutor indicated that she

was not planning to bring in any other photographs that had been

taken at the morgue (DA-R. V3/ 327). The judge then reviewed

each of the individual pictures with Technician Kunde; some of

the pictures had been taken at the morgue, which showed the size

of the wounds and the results of the ligatures (DA-R. V3/ 327-

28).

After reviewing the pictures, the judge commented that the

pictures were "not necessarily to me gruesome" but "very matterof-

fact" (DA-R. V3/ 328). She asked the prosecutor about Ex.

31, which was the only one which showed the gag in the victim’s

mouth; the prosecutor noted that it was offered to show

premeditation, and that if she had a better picture with the

gag, she would use it, but the only other one was a side view

which showed a large puddle of blood (DA-R. V3/ 328-29). The

judge noted that the others were fine, very matter-of-fact, and

she would overrule the objection to the one that was "a little

difficult to look at," but was the only one showing the gag (DAR.

V3/ 329-30). Defense counsel noted that it was "the only one

we would have an objection to," and all of the pictures were

admitted (DA-R. V3/ 330-31).

Thus, the record clearly establishes that only the admission

12

of one picture was preserved for appellate review. Although

Finney now apparently challenges the admission of all of the

photographs, any claim disputing the admission of all of these

pictures into evidence was not preserved for appellate review.

It is well established that appellate counsel cannot be deemed

to have been ineffective for failing to raise a claim that was

not preserved for review. Kokal v. Dugger, 718 So. 2d 138, 142-

143 (Fla. 1998); Ferguson v. Singletary, 632 So. 2d 53, 58

(Fla. 1993); Kelley v. Dugger, 597 So. 2d 262, 263 (Fla. 1992).

In addition, this issue would not have been successful if

argued in Finney’s direct appeal. The relevant question is

whether the trial judge abused her discretion in admitting the

pictures. Nixon v. State, 572 So. 2d 1336, 1342 (Fla. 1990),

cert. denied, 502 U.S. 854 (1991). Here, the State admitted

eight photographs that were not cumulative and were each

relevant to demonstrate the nature of the crime committed. No

abuse of discretion has been shown on these facts. Absent some

abuse, this issue had no merit, and therefore counsel was not

ineffective for failing to present this claim. Mendyk v.

Dugger, 592 So. 2d 1076, 1081-82 (Fla. 1992) (rejecting claim of

ineffective assistance of counsel where defendant failed to

demonstrate an abuse of discretion in admission of photographs);

Groover, 656 So. 2d at 425; Chandler, 634 So. 2d at 1068

13

(failure to raise nonmeritorious issues is not ineffective

assistance of appellate counsel). On these facts, Finney is not

entitled to habeas relief.

Claim II. Whether appellate counsel rendered

ineffective assistance of counsel by failing

to raise the issue of the trial court

allowing Ruth Sutherland, the mother of the

victim, to remain in the courtroom to

observe the trial after she had completed

her testimony.

Finney next asserts that appellate counsel should have

raised a claim of regarding the trial court’s permitting the

victim’s mother, Ruth Sutherland, to remain in the courtroom

after completion of her testimony. The trial transcript

reflects that prior to the swearing of the jury, the State

advised the court that the first witness would be the victim’s

mother, Ruth Sutherland, and that Mrs. Sutherland wanted to be

permitted to remain in the courtroom for the rest of the

testimony (DA-R. V3/ 242). The State did not intend to recall

Mrs. Sutherland for any reason, although the possibility could

not be ruled out (DA-R. V3/ 242). The defense objected, noting

that they always had a right of recall, and therefore objected

to her remaining in the courtroom (DA-R. V3/ 242-43). The court

ruled that she could stay in the courtroom, and that if the

defense needed to call her as a witness, they could go into the

14

question of her having been in the courtroom for the testimony

(DA-R. V3/ 243).

Finney now claims that it was a violation of the rule of

sequestration, codified in Section 90.616, Florida Statutes, for

Mrs. Sutherland to remain in the courtroom after completing her

testimony. He asserts that appellate counsel should have raised

this alleged trial error as an issue on appeal, due to the

prejudicial impact of having the jury observe the victim’s

mother throughout the trial. However, any potential issue

raised on these facts would not merit any relief, and counsel

cannot be deemed ineffective for failing to present this claim.

Although Mrs. Sutherland was presented as a witness by the

State, her presence in the courtroom after the completion of her

testimony did not violate the rule of witness sequestration.

The purpose of the rule is to prevent a witness’ testimony from

being influenced by other testimony the witness may have heard.

Gore v. State, 599 So. 2d 978, 985-986 (Fla. 1992) (courtroom

presence of the stepmother, who testified only regarding jewelry

which the victim commonly wore, did not prejudice the defendant;

no abuse of discretion in allowing this nonmaterial witness to

be excluded from the rule), cert. denied, 506 U.S. 1003 (1993);

Wright v. State, 473 So. 2d 1277, 1280 (Fla. 1985), cert.

denied, 474 U.S. 1094 (1986); Spencer v. State, 133 So. 2d 729

15

(Fla. 1961), cert. denied, 369 U.S. 880 (1962). Since neither

side desired or attempted to call Mrs. Sutherland after she had

been in the courtroom, any possible taint to her testimony is no

basis for concern.

This Court has frequently acknowledged that the rule of

sequestration is not a strict or absolute rule of law, and that

the trial judge has broad discretion with regard to insuring

compliance with the rule. Knight v. State, 721 So. 2d 287, 293-

294 (Fla. 1998); Gore, 599 So. 2d at 985-986; Wright, 473 So. 2d

at 1280; Randolph v. State, 463 So. 2d 186, 191 (Fla. 1984).

The rule must not be enforced in a manner which produces

injustice, and a trial court cannot exclude the testimony of a

witness due to any violation of the rule unless the court first

determines that the witness’ testimony was affected by other

testimony to such an extent that it substantially differs from

what it would have been had the witness not heard the other

testimony. Wright, 473 So. 2d at 1280; Steinhorst, 412 So. 2d

at 336. The burden would be on Finney to demonstrate an abuse

of discretion and a resultant injury. Spencer, 133 So. 2d at

731; Dupree v. State, 436 So. 2d 317, 318 (Fla. 1st DCA 1983).

Finney’s complaint that no hearing was held pursuant to

Thomas v. State, 372 So. 2d 997 (Fla. 4th DCA 1979), is of no

16

concern. The hearing mandated by Thomas is one to determine

whether a witness’ testimony may have been influenced by having

been present in the courtroom prior to testifying; where, as

here, the witness did not observe any other testimony prior to

testifying, there is no basis to even conduct such an inquiry.

In Beasley v. State, 25 Fla. L. Weekly S915, S921 (Fla. Oct.

26, 2000), this Court noted that there are two bases for a

challenge to the trial court’s decision to exclude a witness who

is the victim’s next of kin from the rule of sequestration. One

could argue that the witness has changed key testimony to

conform to the evidence, or a second area of concern may be the

prejudice potentially caused by emotional reactions of the

victim’s family members. Finney does not allege that either of

these possible causes of prejudice occurred in his trial. The

mere fact that a jury could observe a family member during the

trial is clearly no basis for a finding that the trial court

abused her discretion in permitting the victim’s mother to

remain in the courtroom.

In Sireci v. State, 587 So. 2d 450, 454 (Fla. 1992), this

Court noted that Florida’s Constitution granted to victims,

including the next of kin of homicide victims, the right to be

present at all crucial stages of criminal proceedings. Art. I,

17

§ 16(b), Fla. Const. Although this right cannot interfere with

the constitutional rights of the accused, Finney does not

attempt to explain how any of his rights could have been

adversely affected by the court’s ruling. He does not allege

that Mrs. Sutherland’s testimony was changed due to her having

been present in the courtroom, and his failure to allege any

specific prejudice leaves his argument completely without

support. No abuse of discretion has been demonstrated on these

facts.

Since no error has been demonstrated with regard to the

trial court’s ruling permitting the victim’s mother to remain in

the courtroom after completion of her testimony, appellate

counsel was not ineffective in failing to present this claim as

an issue of on appeal. No habeas relief is warranted.

Claim III: Whether appellate counsel rendered ineffective

assistance of counsel by failing to raise the

issue of the trial court never ruling on trial

counsel’s motion for sequestration.

Finney’s next claim asserts that his appellate counsel

should have raised an issue challenging the trial court’s

failure to rule on a motion for sequestration. First of all,

contrary to the allegations in Finney’s petition, the record

reflects that the trial court in fact denied the motion to

18

sequester the jurors throughout the entire trial (DA-R. V3/

311). When defense counsel initially requested that the jurors

be sequestered, noting that Mr. Finney had asked her to pursue

sequestration "in an abundance of caution," the judge indicated

that she wanted the parties to research the issue during a

recess, and that she would also check on the rule (DA-R. V3/

245-47). Later in the day, just prior to a recess, the judge

stated, "let’s see if we can find any law on the sequestration

issue to resolve it" (DA-R. V3/ 300). After the recess, the

attorneys agreed that the question was discretionary with the

court, and discussed relevant authorities; the defense renewed

its request to have the jury sequestered (DA-R. V3/ 307). The

court thereafter ruled that, based on the arguments of counsel,

she was denying the request to sequester the jury (DA-R. V3/

311). No error has been shown with regard to this ruling.

In Banda v. State, 536 So. 2d 221 (Fla. 1988), cert. denied,

489 U.S. 1087 (1989), this Court upheld a trial court’s denial

of a request to sequester jurors in a capital case between the

guilt and penalty phases of the trial. Although Finney now

suggests that his jury should have been sequestered to avoid

"extensive media coverage," there is no suggestion in the record

of any such coverage. On these facts, no abuse of discretion

could possibly be demonstrated, and Finney would not have

19

secured any relief had the issue been raised on appeal. Neither

deficiency nor prejudice can be attributed to appellate counsel

in failing to brief this claim, and therefore once again no

habeas relief is warranted.

Claim IV. Whether appellate counsel rendered

ineffective assistance of counsel by failing

to raise the issue of the trial court

excusing two jurors for cause.

Finney’s next claim presents the allegation that counsel was

ineffective for failing to raise an issue on appeal challenging

the trial court’s granting of the State’s cause challenges on

two prospective jurors. Although Finney does not identify the

prospective jurors at issue, the record reflects that veniremen

Jennings and Silas were excused for cause over the objection of

the defense (DA-R. V3/ 218, 220-221, 244). However, despite the

fact that this issue was preserved for appellate review, it

would not have been successful even if presented, and therefore

no basis for ineffectiveness of appellate counsel has been

demonstrated.

The trial transcript reflects that early in voir dire, both

prospective jurors Jennings and Silas indicated that they were

troubled by the death penalty, and that it would even affect

their guilt phase deliberations. Prosecutor Christine Vogel was

the State’s guilt phase counsel, and as she concluded her

20

questioning before turning the panel over to the State’s penalty

prosecutor, Nick Cox, she addressed the panel as follows:

[MS. VOGEL:] Okay. As Judge Sexton told

you, this is a case where the State is

seeking the death penalty. And as to that

part of it, Mr. Cox is going to do voir dire

as to the death penalty and your individual

feelings about that.

But I do have one last question: With

that in mind, is there anybody who is going

to, in the guilt/nonguilt issue -- and that

is the first thing that the Judge explained

to you that you have to determine, is

whether or not Mr. Finney is guilty of

anything at all. Okay. Is there anybody

who is going to be thinking of the next step

before we have even gone through the first

step? And that is, if Mr. Finney is guilty,

and if so, of what?

Is there anybody who is going to be

troubled or concerned about the potential

penalty before you have even determined if

he’s, in fact, guilty of anything? Anybody

who is going to put the proverbial cart

before the horse?

(DA-R. V2/93-94). Prospective Juror Alter responded that he did

not believe in the death penalty, and that his opposition to it

would cloud his judgment as to guilt or innocence (DA-R. V2/

94). Mr. Jennings also responded that he did not believe in the

death penalty (DA-R. V2/ 94). After a couple of other people on

the panel volunteered opposition to the death penalty, Ms. Vogel

noted that opposition wasn’t really her question:

But do you think -- I mean, maybe I didn’t

clarify the question. There are two

separate issues to be decided. The first

one is whether or not he’s guilty of

21

anything. Okay? And that is the first

issue.

And do you think that your concerns with

potential penalty -- and if you are -- if

you don’t feel that the death penalty is

appropriate for whatever, do you feel that

that would invade your decision as to the

guilt or nonguilt of Mr. Finney on the

charges?

(DA-R. V2/ 94-95). Thereafter, the following exchange occurred

with Mr. Silas:

MR. SILAS: You said that the State’s

asking for the death penalty?

MS. VOGEL: Yes, sir.

MR. SILAS: I have trouble with that.

MS. VOGEL: Okay. Do you think that the

concern with the potential penalty is going

to cloud your being able to determine his

guilt or nonguilt as to the charge of firstdegree

murder? And that is really the

question. If you think that there is a

possibility of this thing that you don’t

like happening, do you think that would

enter your deliberations as to whether or

not the State has proven its case of firstdegree

murder?

MR. SILAS: Yes.

(DA-R. V2/ 95). Shortly thereafter, Assistant State Attorney

Cox took over the questioning (DA-R. V2/ 101). Cox conducted

individual questioning of each prospective juror regarding how

they felt about the death penalty. When he got to Mr. Jennings,

Jennings reiterated that he did not believe in an eye for an

eye, and that he could not impose the death penalty under any

circumstances (DA-R. V2/ 118). Mr. Silas also indicated that he

could not impose the death penalty under any circumstances,

22

although it was not because he didn’t believe in it, but because

it was not administered fairly; and having "seen who I have to

deal with up there," that it would not be fair in Mr. Finney’s

case (DA-R. V2/ 132-134).

When defense counsel Pittman questioned the panel, she at

one point asked them individually several generic questions

about where they were from, how many children they had, and what

kind of jobs they held. Upon questioning Mr. Jennings, she

brought up his views about the death penalty:

MS. PITTMAN: Okay. Now, concerning your

views on the death penalty, do you

understand that if you’re selected as a

juror in this case, Judge Sexton will

instruct you on the law?

MR. JENNINGS: Yes.

MS. PITTMAN: And you would have to follow

the law as a juror in this case. Do you

understand that?

MR. JENNINGS: Right. But --

MS. PITTMAN: Go ahead.

MR. JENNINGS: Can I ask you a question?

MS. PITTMAN: Yes.

MR. JENNINGS: I have made myself explain

already, I wouldn’t vote for the death

penalty.

MS. PITTMAN: Then, you cannot follow the

law if the Judge instructs you?

MR. JENNINGS: I have been given an

instruction that if I -- that I can vote

against it in the second phase. You see,

they said the majority wins.

MS. PITTMAN: In the second phase, yes.

MR. JENNINGS: Right, in the second phase.

MS. PITTMAN: Okay. My question is, though:

Are you saying that even if you’re selected

as a juror and Judge Sexton reads you these

instructions, you see, you have to keep an

23

open mind that --

MR. JENNINGS: I’ll keep an open mind, but I

won’t go for the death penalty.

(DA-R. V2/ 173-74). Upon questioning Mr. Silas further, Silas

also told Ms. Pittman that he could keep an open mind and that

he could listen to the evidence presented (DA-R. V2/ 193).

Finney now alleges that appellate counsel should have

disputed the cause challenges granted on prospective jurors

Jennings and Silas. However, the record reflects that both

Jennings and Silas were properly excluded. Finney’s petition

merely asserts that these prospective jurors were rehabilitated,

precluding the cause challenges. This does not establish any

error in the trial court’s ruling on this issue.

A trial court’s decision on whether or not to strike a juror

for cause is reviewed for abuse of discretion, and will not be

disturbed absent manifest error. Kearse v. State, 770 So. 2d

1119 (Fla. 2000) (noting that a trial court has great discretion

when deciding whether to grant or deny a challenge for cause,

recognizing that the trial court has a unique vantage point

because the trial court is able to see the jurors’ voir dire

responses and make observations which simply cannot be discerned

from an appellate record, and concluding that it is the trial

court’s duty to determine whether a challenge for cause is

proper); Fernandez v. State, 730 So. 2d 277, 281 (Fla. 1999).

24

In Kimbrough v. State, 700 So. 2d 634, 639 (Fla. 1997), this

Court recognized that even if a prospective juror responds

affirmatively to a defense attorney’s query whether he could

follow the oath administered and apply the law as instructed by

the judge, an excusal for cause may be appropriate where he has

previously expressed uncertainty during voir dire. See also,

Castro v. State, 644 So. 2d 987 (Fla. 1994) (excusing a juror

for cause is subject to abuse of discretion review because the

trial court has the opportunity to observe and evaluate the

prospective juror’s demeanor and credibility). Because no abuse

of discretion could be shown in the granting of the cause

challenges to prospective jurors Jennings and Silas, any failure

to challenge these rulings on appeal could not be prejudicial to

Finney.

Finney also makes an allegation that an unidentified juror

was improperly excused for cause due to having a prior felony

conviction, citing to the record at R217 and R231. The record

reflects that this juror was excused peremptorily, and not

challenged for cause. Thus, the record affirmatively refutes

Finney’s allegation on this claim. His petition must be denied.

Claim V: Whether appellate counsel rendered ineffective

assistance of counsel by failing to raise the

issue of the trial court refusing to instruct the

jury to disregard the comment made by the state

25

attorney in closing argument that no semen was

found in the victim either vaginally or anally.

Finney also asserts that appellate counsel should have

argued that the trial court erred in refusing to instruct the

jury that the prosecutor was arguing facts not in evidence

during her closing argument. On this issue, the trial

transcript reflects that the medical examiner was asked on cross

examination about the presence of acid phosphatase in the

victim’s rectal area; Dr. Diggs responded that acid phosphatase

was present, which indicated the presence of seminal fluid and

some sort of sexual contact (DA-R. V3/ 393-394). However, this

indication was ambiguous because it was impossible to tell how

long the acid phosphatase had been there (DA-R. V3/ 394-395).

On redirect, Dr. Diggs clarified that the acid phosphatase had

been identified in a presumptive test conducted by an outside

lab; Dr. Diggs did not find any evidence of any semen or sperm,

and the lab results did not show any (DA-R. V3/ 399-400). Dr.

Diggs noted that there are a number of different things that

could account for the acid phosphatase (DA-R. V3/ 400).

During closing arguments, the defense attorney repeatedly

stated that Dr. Diggs had testified that in his opinion, "the

acid phosphatase that was there was male semen," and that there

was some sort of sexual activity, supporting the defense theory

that this was a crime of passion rather than a robbery (DA-R.

26

V5/ 659, 664-665). In rebuttal, the prosecutor noted that Dr.

Diggs had said that the acid phosphatase could be found in

seminal fluid, and was only a presumptive test. She continued,

It’s like if you see it, you go further to

the next step, which is what he told you.

What did the lab say? No semen, no

sperm, anally, orally or vaginally. No

semen, no sperm.

(DA-R. V5/ 694). The defense objected to these comments,

stating that the prosecutor was arguing facts not in evidence

(DA-R. V5/ 694). There followed an extensive discussion at the

bench about what the medical examiner actually stated in his

testimony, with everyone’s recall of the details slightly varied

(DA-R. V5/ 694-697). Defense counsel thought that Diggs had

said no sperm was found, but that he had not mentioned there

being no semen (DA-R. V5/ 694). The court recalled the "no

semen, no sperm," but did not think Diggs had mentioned anally

or orally (DA-R. V5/ 694). Because the judge could not recall

the testimony distinctly, she sustained the objection (DA-R. V5/

696-697). The defense then asked the court to instruct the jury

that "no such evidence has been offered," and although the court

declined this instruction, she did at this time remind the

jurors that they needed "to rely on their own recollection of

the witnesses," and that "What the attorneys say is not evidence

and is not to be considered by you as such. You’re to go on

27

your own recollection" (DA-R. V5/ 697).

Finney now asserts that appellate counsel should have

presented the trial court’s refusal to instruct the jury that no

evidence had been offered to support the prosecutor’s comment.

Finney neglects to mention that in fact the court instructed the

jurors that they should rely on their own recollection and that

what the attorneys said was not to be considered evidence.

Since defense counsel did not object to the curative instruction

actually provided, and never requested a mistrial on this basis,

no claim regarding these facts had been preserved for appellate

review. Once again, counsel cannot be deemed ineffective for

failing to raise a claim which was not preserved for review.

Kokal, 718 So. 2d at 142-143; Ferguson, 632 So. 2d at 58.

Furthermore, because the prosecutor’s statement was

consistent with the testimony of the medical examiner, and since

any possible misstatement would be cured by the court’s

instruction, no meritorious claim existed with regard to this

issue. Counsel cannot be ineffective for failing to raise a

nonmeritorious issue, and there is no merit to the claim that

the trial court’s failure to give a different curative

instruction violated the fundamental fairness of Finney’s trial.

Even if the prosecutor’s comment in this case was not

completely consistent with the testimony presented, any possible

28

misstatement was clearly cured by the trial court’s instruction,

as well as the repeated reminders during the trial that what the

attorneys say is not evidence (DA-R. V3/ 248; V5/ 636). This is

not a case of misconduct, let alone such egregious misconduct

that a mistrial (which wasn’t requested) was warranted. Claims

of ineffective assistance of appellate counsel have been

rejected which alleged much more serious prosecutorial

misstatements not presented as appellate error. See, Sims v.

State, 602 So. 2d 1253, 1257 (Fla. 1992) (rejecting claim of

ineffective assistance of counsel for failure to object to

Golden Rule violation), cert. denied, 506 U.S. 1065 (1993);

Jones v. Wainwright, 473 So. 2d 1244, 1245 (Fla. 1985)

(rejecting ineffective assistance of appellate counsel claim

based on failure to challenge prosecutorial comments). Finney

has failed to show any deficiency in his appellate counsels’

performance regarding any possible claim relating to his current

allegation that the trial court did not more completely instruct

the jury to disregard the prosecutor’s comment, or any prejudice

resulting from any alleged deficiency. No habeas relief is

warranted.

Claim VI. Whether Finney’s Eighth Amendment right

against cruel and unusual punishment will be

violated as Mr. Finney may be incompetent at

the time of execution.

29

Finney also asserts that he may be incompetent to be

executed. Although he acknowledges that this claim is not

currently ripe for judicial review, since no execution is

pending, he suggests that he is including this claim in his

current petition in order to preserve the issue for federal

court review. Clearly, there is no basis for this Court to rule

on Finney’s present claim of possible incompetence.

Florida law provides specific protection against the

execution of an incompetent inmate. In order to invoke judicial

review of a competency to be executed claim, a defendant must

file a motion for stay of execution pursuant to Florida Rule of

Criminal Procedure 3.811(d). Such motion can only be considered

after a defendant has pursued an administrative determination

of competency under Florida Statutes 922.07, and the Governor of

Florida, subsequent to the signing of a death warrant, has

determined that the defendant is sane to be executed. Since the

prerequisites for judicial review of this claim have not

occurred in this case, there is no basis for consideration of

this issue in Finney’s present habeas petition. Compare,

Provenzano v. State, 751 So. 2d 37 (Fla. 1999); Provenzano v.

State, 760 So. 2d 137 (Fla. 2000) (detailing procedural history

of similar claim); Medina v. State, 690 So. 2d 1241 (Fla. 1997)

(remanding for evidentiary hearing on issue in postconviction

30

appeal from Bradford County).

Finney’s concern with preservation of this issue for federal

review does not offer a reason for a premature ruling by this

Court. Although the federal courts have refused to permit

successive federal habeas petitions in order to secure federal

review of this claim, that default may be avoided if a defendant

presents the issue prematurely in his initial habeas petition.

See, Stewart v. Martinez-Villareal, 523 U.S. 637 (1998). Finney

has never pursued federal habeas relief, and any question as to

whether this would be an appropriate claim in any future federal

petition is a question to be properly resolved by the federal

courts, not this Court. No federal decision requires this Court

to consider and address the claim now presented, contrary to

state law, in order to preserve Finney’s federal rights. Since

Finney’s claim of incompetence to be executed is not properly

before this Court, it must be denied.

In addition, it must be noted that the limited factual basis

offered for this claim is refuted by the record. Although

Finney’s petition claims that his "already fragile mental

condition" is likely to deteriorate, his penalty phase

psychologist, Dr. Gamache, noted that he had conducted tests

which revealed that Finney was not psychotic, had no major

depression or mania, and no learning disability (DA-R. V6/ 882-

31

89). Finney had at least average intelligence, with good verbal

skills and good job skills, and he had been truthful in the

testing; there were no significant elevations observed in any of

the clinical scales (DA-R. V6/ 884, 889). No contrary mental

health opinion was alleged in his postconviction proceedings.

On these facts, this claim must be denied.

Claim VII. Whether execution by electrocution is cruel

and/or unusual punishment and violates Mr.

Finney’s rights under the Eight and Fourteenth

Amendments of the United States Constitution and

under of [sic] the Florida Constitution.

Finney also asserts that execution by electrocution is cruel

and unusual punishment, and that because the Death Penalty

Reform Act of 2000 is allegedly unconstitutional, electrocution

is the only possible method of execution for carrying out his

sentence. This claim has been repeatedly rejected by this

Court, and no basis to reconsider this issue has been offered.

See, Sims v. State, 754 So. 2d 657, 663-665 (Fla.), cert.

denied, 120 S.Ct. 1233 (2000); Bryan v. State, 753 So. 2d 1244,

1253-1255 (Fla.), cert. denied, 120 S.Ct. 1236 (2000).

Claim VIII. Whether execution by lethal injection is cruel

and/or unusual punishment and violates Mr.

Finney’s rights under the Eight and Fourteenth

Amendments of the United States Constitution and

under of [sic] the Florida Constitution.

32

Finney’s last claim alleges that execution by lethal

injection is also cruel and unusual punishment. This Court has

again repeatedly rejected this issue, and Finney again has

offered no basis to revisit the well established law denying his

claim. Sims v. State, 754 So. 2d 657, 666-668 (Fla.), cert.

denied, 120 S.Ct. 1233 (2000); Provenzano v. State, 761 So. 2d

1097 (Fla. 2000).

33

WHEREFORE, Respondent respectfully requests that this

Honorable Court DENY Finney’s Petition for Writ of Habeas

Corpus.

Respectfully submitted,

ROBERT A. BUTTERWORTH

ATTORNEY GENERAL

_______________________________

CAROL M. DITTMAR

Assistant Attorney General

Florida Bar I.D. No.: 0503843

2002 North Lois Avenue, Suite 700

Westwood Center

Tampa, Florida 33607

Phone:(813) 801-0600

Fax: (813) 356-1292

COUNSEL FOR RESPONDENT

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing has been furnished by U.S. Regular Mail, to Joseph T.

Hobson, CCRC, Office of the Capital Collateral Regional Counsel,

3801 Corporex Park Drive, Suite 210, Tampa, Florida 33619, this

_____ day of April, 2001.

___________________________________

COUNSEL FOR RESPONDENT

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34

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COUNSEL FOR RESPONDENT