IN THE SUPREME COURT OF FLORIDA. v. CASE NO. SC

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1 IN THE SUPREME COURT OF FLORIDA WILLIAM T. TURNER, Petitioner, v. CASE NO. SC STATE OF FLORIDA, Respondent. / RESPONSE TO PETITION FOR REVIEW OF A NONFINAL ORDER IN A DEATH PENALTY POSTCONVICTION PROCEEDING In a order dated August 8, 2006, this Court requested that the State file a response to Turner s petition for review of a nonfinal order in a death penalty postconviction proceeding. Turner filed a petition seeking review of a trial court s order denying his motion to disqualify the judge presiding over the Atkins proceedings. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that it is unconstitutional to execute a mentally retarded offender). This is the State s response.

2 RELEVANT PROCEDURAL HISTORY William Thaddeus Turner was convicted of the first-degree murders of his estranged wife, Shirley Turner, and her roommate, Joyce Brown. The trial court sentenced Turner to life imprisonment for the murder of his wife and, in accordance with the jury's recommendation, to death for the murder of Brown. On appeal, Turner raised twelve issues. 1 This Court affirmed his conviction and sentence. Turner v. State, 530 So.2d 45 (Fla. 1987). On October 18, 1990, Turner filed his initial postconviction motion in the trial court. 2 The trial judge denied the motion for postconviction relief without 1 The twelve issues on direct appeal were whether (1) the court abused its discretion in excluding Baker Act evidence; (2) the state failed to prove beyond a reasonable doubt that Turner was sane at the time of the crime; (3) there was insufficient evidence of premeditation; (4) the court erred in instructing the jury on felony-murder; (5) the court improperly refused Turner's requested instruction on age and duress as mitigating factors; (6) the court improperly rejected statutory and non-statutory mitigating factors; (7) the court improperly doubled the aggravating factors that the murder was heinous, atrocious and cruel, and cold, calculated and premeditated; (8) the court gave undue weight to the jury's recommended death sentence; (9) Turner was entitled to a new trial because of his claimed involuntary absence from voir dire; (10) Turner was involuntarily absent from the jury charge conference in chambers; (11) the court abused its discretion in allowing the 911 tape into evidence; and (12) the trial judge erred in his findings regarding the aggravating factors justifying the imposition of the death penalty for Joyce's murder. Turner v. State, 530 So.2d 45, 47, 47 n. 1, 50 (Fla.1987). 2 Turner raises sixteen claims in his rule motion: (1) the trial court applied the Florida statutory scheme for the weighing of aggravating

3 granting an evidentiary hearing. This Court affirmed the trial court s denial of postconviction relief and denied Turner s petition for habeas corpus. Turner v. Dugger, 614 So.2d 1075, 1077 (Fla. 1992). 3 and mitigating circumstances in an arbitrary and capricious manner; (2) trial counsel failed to adequately investigate, prepare, and present mitigating circumstances in the penalty phase; (3) the Florida sentencing scheme placed upon Turner the burden of proving that death was not the appropriate sentence; (4) trial counsel failed to investigate and arrange for competent mental health assistance; (5) trial counsel was ineffective at the guilt phase; (6) trial counsel failed to effectively challenge the application of aggravating factors; (7) trial counsel failed to object to improper prosecutorial argument relative to nonstatutory aggravating factors; (8) trial counsel failed to argue that giving Turner the burden of proving that life was the appropriate sentence violated his right to a reliable sentencing determination; (9) trial counsel failed to object to victim-impact evidence in violation of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987); (10) trial counsel failed to object to instructions and argument that diminished the jurors' sense of responsibility in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (11) trial counsel failed to object to the trial court's and the prosecutor's assertions that sympathy and mercy were improper considerations for the jury; (12) trial counsel failed to ensure a reliable and individualized capital-sentencing determination; (13) the cumulative effect of prosecutorial misconduct rendered the trial and sentence fundamentally unfair; (14) the murders were not cold, calculated, and premeditated as defined by Rogers v. State, 511 So.2d 526 (Fla.1987), and the trial court failed to limit construction of this aggravating factor in violation of Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); (15) the trial court's instructions concerning the heinous, atrocious, or cruel aggravating factor conflict with Maynard v. Cartwright; (16) the trial court failed to record charge and bench conferences and trial counsel failed to object. 3 Turner raised three issues on his state habeas petition: (1) that Campbell v. State, 571 So.2d 415 (Fla.1990), and other cases decided after his direct appeal should be applied retroactively to his case; (2) that his appellate counsel was ineffective for a number of reasons; and (3) that the trial court erred in not requiring the jury to specify whether his murder convictions were based on premeditation or felony murder. 3

4 On July 15, 1993, Turner filed a petition for writ of habeas corpus in federal district court raising eleven claims. 4 Over eight years later, on June 26, 2002, in an 291-page order, the federal district court denied the habeas petition without prejudice to raise an Atkins claim of mental retardation after exhausting the claim in state court. The district court concluded that the mitigating evidence was largely cumulative and, therefore, Turner's counsel was not ineffective for failing to present it. On appeal, Turner argued that his attorneys were ineffective for failing to introduce certain mitigating evidence during the penalty phase and that his death sentence violates his constitutional right to a jury trial as established in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). 5 On July 29, 2003, the 4 The eleven claims were: (1) ineffective assistance of state trial counsel at the guilt and penalty phases; (2) ineffective assistance of state appellate counsel; (3) denial of Turner's right to be present during critical stages of his trial; (4) Florida courts' failure to consider non-statutory mitigation evidence and factors; (5) Florida's unconstitutionally vague aggravating circumstances that were incorporated in jury instructions at trial; (6) improper application of Florida's capital sentencing statute; (7) lack of special verdicts at the guilt and penalty phases; (8) denial of due process stemming from introduction of the 911 tape and certain photographs; (9) improper burden shifting that required Turner to prove that death was not an appropriate sentence; (10) improper prosecutorial argument tainting the guilt and penalty phases; and (11) the Florida courts' failure to grant Turner an evidentiary hearing required the federal court to conduct an evidentiary hearing. Turner v. Crosby, 339 F.3d 1247, 1272 (11 th Cir. 2003). 5 On October 24, 2003, Turner filed a successive state habeas petition in the Florida Supreme Court raising a Ring v. Arizona, 536 U.S. 584 (2002) claim. The Florida Supreme Court denied the successive habeas by order. 4

5 Eleventh Circuit affirmed the district court s denial of federal habeas relief. Turner v. Crosby, 339 F.3d 1247 (11 th Cir. 2003)(holding that defendant received effective assistance of trial counsel during penalty phase). On December 16, 2002, Turner filed a successive postconviction in the state trial court claiming that he was mental retarded under Atkins. On April 16, 2003, Judge Southwood held a hearing on the Aktins motion. At the hearing, the Assistant Attorney General and the Assistant State Attorney handling the case, both appeared in person. However, collateral defense counsel appeared via telephone. The trial court denied the motion without prejudice to refile the Atkins motion after the appeal in the Eleventh Circuit was concluded. On November 30, 2004, Turner filed a new successive Atkins motion in the trial court after the Eleventh Circuit issued its opinion. On November 30, 2004, Turner also filed a motion for judicial disqualification and memorandum of law in support thereof. On May 22, 2006, the State filed an unopposed motion to reassign the case citing the automatic recusal provision of rule 2.160(j) of the rules of judicial administration. On May 23, 2006, the trial court denied the motion to disqualify as untimely. On June 1, 2006, the trial court entered an order denying the State s motion to reassign the case. On June 6, 2006, Turner filed an unopposed motion for On July 23, 2004, the Florida Supreme Court denied the motion for rehearing. 5

6 reconsideration. On June 16, 2006, the trial court denied the motion for reconsideration. 6 6 Many of the dates of the pleadings being filed in the trial court used by opposing counsel and the trial court differ by a few days from these dates. Undersigned counsel used the official trial court docketing available on the internet for the dates. These dates are filed dates, not service dates. 6

7 The trial court s ruling The trial court originally denied the motion to disqualify as untimely. In response to the State s unopposed motion to reassign the case, the trial court, relying on Tobkin v. State, 889 So.2d 120 (Fla. 4 th DCA 2004), denied the motion to disqualify because he had not personally received a copy of the motion. Standard of review The standard of review of a trial judge's determination on a motion to disqualify is de novo. Mansfield v. State, 911 So.2d 1160, 1170 (Fla. 2005)(citing Chamberlain v. State, 881 So.2d 1087, 1097 (Fla.2004), cert. denied, 544 U.S. 930, 125 S.Ct. 1669, 161 L.Ed.2d 495 (2005)). Merits The rule of judicial administration governing disqualification of trial judges, rule 2.160(j), provides: (c) Motion. A motion to disqualify shall: (1) be in writing; (2) allege specifically the facts and reasons upon which the movant relies as the grounds for disqualification; and (3) be sworn to by the party by signing the motion under oath or by a separate affidavit. The attorney for the party shall also separately certify that the motion and the client's statements are made in good faith. In 7

8 addition to filing with the clerk, the movant shall immediately serve a copy of the motion on the subject judge as set forth in Florida Rule of Civil Procedure * * * * (j) Time for Determination. The judge shall rule on a motion to disqualify immediately, but no later than 30 days after the service of the motion as set forth in subdivision (c). If not ruled on within 30 days of service, the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case. The provision of the rule requiring a trial court to rule within 30 days became effective while the motion to disqualify was pending. The motion was filed on November 30, 2004 and the rule became effective on January 1, See Amendments to Fla. R. of Jud. Admin , FL Order (Fla. Oct. 7, 2004). The rule codified this Court s earlier holding in Tableau Fine Art Group, Inc. v. Jacoboni, 853 So.2d 299 (Fla. 2003). In Tableau, this Court held that a motion to disqualify the judge must be ruled on within 30 days of presentation to the court. Tableau was decided prior to the motion to disqualify being filed. The trial court, relying on Tobkin v. State, 889 So.2d 120 (Fla. 4 th DCA 2004), denied the unopposed motion to reassign the case because he had not personally received a copy of the motion to disqualify. In Tobkin, the Fourth District held that the automatic recusal provision of Tableau and rule does not apply when the judge is not aware of the motion to 8

9 disqualify. On April 30, 2004, Tobkin had filed a motion to disqualify the judge in the trial court. A copy of the motion was sent to Judge Lee at the Broward County Courthouse. Judge Lee denied the motion on June 15, Judge Lee, in the order denying the motion, explained that he was not aware of the motion until June 9, because he had been transferred from the Broward County Courthouse to the satellite courthouse in Hollywood in Judge Lee first received an actual copy of the motion on June 14, when the file was received at the satellite courthouse from the main courthouse. The judge ruled the next day. Tobkin filed a petition for writ of prohibition in the Fourth District seeking to prevent Judge Lee from continuing to preside over an indirect criminal contempt proceeding. The Fourth District noted that the fault lied with Tobkin who had mailed a copy of the motion to the judge at a stale address. The Fourth District observed that judges' offices are a matter of public record. The Fourth District required service in a manner designed to notify the judge of the existence of the motion and concluded that under the new rule, we believe a mailing should be to the judge's chambers as of the date of motion. Tobkin, 889 So.2d at 122. See also Harrison v. Johnson, 2006 WL , 1 (Fla. 1 st DCA June 27, 2006)(refusing to grant either prohibition nor mandamus relief where a motion to disqualify was not ruled on within 30 days as required by rule governing such motions, Florida Rule of Judicial Administration 2.160(c), 9

10 because that rule provides that in addition to filing the motion with the clerk, the movant is required to serve a copy on the trial judge and the motion for disqualification failed to show proper service on the trial judge and therefore the rule did not apply). The problem in this case is that the judge, unlike the judges in Tobkin or Harrison, is a retired Senior Judge without chambers. In MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla. 1990), this Court explained that the standard for deciding if a motion to disqualify is legally sufficient is whether the facts as alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial. Thisi Court has pointed out that a mere subjective fear of bias will not be legally sufficient, rather, the fear must be objectively reasonable. Arbelaez v. State, 898 So.2d 25, 41 (Fla. 2005). The State does not agree that Turner has a well-founded, objectively reasonable fear that he would not receive a fair hearing on his mental retardation claim based on the ex parte communications. 7 Judge Southwood was merely inquiring into the status of the case in federal court and the issues being raised on appeal in the Eleventh Circuit. This is public 7 The conversation was not truly ex parte. Opposing counsel was still on the line and could hear the conversation. If opposing counsel can hear the conversation, the conversation, by definition, is not ex parte. Black's Law Dictionary defines ex parte communication as [a] communication between counsel and the court when opposing counsel is not present. BLACK'S LAW DICTIONARY 296 (8th ed. 2004). Both parties were, in fact, present. 10

11 information. The comment regarding trial defense counsel, who was Hank Coxe, the current Florida Bar president, concerned the ineffectiveness claim being raised on appeal in the federal court. The ineffectiveness was not pending before Judge Southwood. Judge Southwood had ruled on the ineffectiveness claim over a decade ago. Nor is a judge s dismay at the delay in a capital case a basis for a wellfounded, objectively reasonable fear that a capital defendant would not receive a fair hearing. Justices of this Court have routinely expressed dismay over the delays in capital cases, both in general and in particular cases. Amendments to Fla. Rules of Criminal Procedure 3.851, & & Fla. Rule of Judicial Admin , 802 So.2d 298 (Fla.2001)(noting, in the court commentary section of the 1993 adoption of the rule, the rule is consistent with the recommendation of the Supreme Court Committee on Postconviction Relief in Capital Cases, which was created because of the substantial delays in the death penalty postconviction relief process.); Allen v. Butterworth, 756 So.2d 52, 65 (Fla. 2000)(stating: this Court shares the Legislature's frustration regarding unnecessary delay in capital cases. ); Arbelaez v. Butterworth, 738 So.2d 326, 332 (Fla. 1999)(Anstead, J., concurring)(observing that [l]ike the legislature, this Court is concerned with the delays that have plagued capital collateral proceedings and stating: Opposing counsel could have objected or added his views at any time. 11

12 [o]ur desire is to make postconviction proceedings work well and without delay. ); Jones v. State, 740 So.2d 520, 524 (Fla. 1999)(stating that the egregious delay in this case brings to mind the criticism by Justice Breyer of the United States Supreme Court, who condemned excessive delays in the processing of death penalty appeals. ). Under this logic, any member of this Court that has expressed dismay at long delays in capital cases should be disqualified as well. This case was pending in federal district court for approximately nine years. However, the State filed an unopposed motion to reassign the case believing that to be the most prudent course. Cf. Rose v. State, 601 So.2d 1181, 1183 (Fla.1992)(holding that a judge should not engage in any conversation about a pending case with only one of the parties participating in that conversation); Randolph v. State, 853 So.2d 1051, 1057 (Fla. 2003)(finding that defendant s right to a neutral judge was not violated by the improper ex parte communication). Reassigning the case prior to the evidentiary hearing on the mental retardation claim will remove this issue from the case. 12

13 Respectfully submitted, CHARLES J. CRIST, JR. ATTORNEY GENERAL CHARMAINE M. MILLSAPS ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO OFFICE OF THE ATTORNEY GENERAL THE CAPITOL TALLAHASSEE, FL (850) COUNSEL FOR THE STATE CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this response to the petition has been furnished by U.S. Mail to James C. Lohman, Esq., 1806 East 39 th Street Austin, TX this 18 th day of August, Charmaine M. Millsaps Attorney for the State of Florida 13