IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA STATE OF FLORIDA, Petitioner, vs. CASE NO. EMANUEL JOHNSON, Respondent. / PETITION SEEKING REVIEW OF NONFINAL ORDER IN DEATH PENALTY POST-CONVICTION PROCEEDINGS COMES NOW Petitioner, the State of Florida, by and through the undersigned counsel and pursuant to Rule 9.142(b), Florida Rules of Appellate Procedure, files this petition seeking review of the lower court s order allowing the Office of the Capital Collateral Regional Counsel (CCRC-M) to represent a death row inmate on post-conviction challenges to non-capital judgments and sentences in violation of F.S. chapter 27 and this Court s decisions in State ex rel. Butterworth v. Kenney, 714 So. 2d 404 (Fla. 1998) and Olive v. Maas, 811 So. 2d 644 (Fla. 2002). (A) The basis for invoking the jurisdiction of the Court The basis for invoking the jurisdiction of the Court is Rule 9.142(b), Rules of Appellate Procedure. See Amendment to the Florida Rules of Appellate Procedure (Rule 9.142), 837 So. 2d

2 911 (Fla. 2002). (B) The date and nature of order sought to be reviewed On October 21, 2002, the lower court entered its Order Denying the State s Motion to Discharge the Office of the Capital Collateral Regional Counsel (CCRC-M) from representing death row inmate Emanuel Johnson in two non-capital postconviction proceedings involving victims LaWanda Giddens and Kate Cornell. The lower court denied the state s motion for rehearing on April 10, (C) The name of the lower tribunal rendering the order The Circuit Court of the Twelfth Judicial Circuit in and for Sarasota County rendered the Order sought to be reviewed in this petition. (D) All prior proceedings relating to the conviction and death sentence that are the subject of the proceedings in which the order sought to be reviewed was entered can be summarized as follows: (1) Johnson was tried and convicted of the first degree murder of Iris White and following a jury death recommendation was sentenced to death. This Court affirmed the judgment and sentence on direct appeal. Johnson v. State, 660 So. 2d CCRC-M is also representing Johnson in post-conviction proceedings challenging the imposition and sentence of death in two capital cases involving victims Iris White and Jackie McCahon. 2

3 (Fla. 1995). His initial motion for post-conviction relief is pending in the circuit court. The murder of Iris White occurred on October 4, (2) Johnson was tried and convicted of the first degree murder of Jackie McCahon and armed burglary. Following a jury recommendation of death he was sentenced to death and this Court affirmed. Johnson v. State, 660 So. 2d 648 (Fla. 1995). His initial motion for post-conviction relief is pending in the circuit court. The murder of Jackie McCahon occurred on September 22, (3) Johnson was convicted of battery, burglary of an occupied structure and robbery of victim LaWanda Giddens and the Second District Court of Appeal affirmed the judgments and sentences on October 6, Johnson v. State, 662 So. 2d 349 (Fla. 2DCA 1995)(2DCA Case No )(Circuit Court Case No CF-A-N1). The crimes on Giddens occurred on May 28, (4) Johnson was convicted of attempted murder, armed burglary and armed robbery of victim Kate Cornell and the Second District Court of Appeal affirmed the judgments and sentences on October 6, Johnson v. State, 662 So. 2d 349 (Fla. 2DCA 1995)(2DCA Case No )(Circuit Court Case No CF- A-N1). These crimes occurred on January 17,

4 Johnson did not seek post-conviction relief from the noncapital convictions (the Giddens and Cornell offenses) until the Office of Capital Collateral Representative initiated postconviction litigation in the capital cases with its pleadings in March of (E) Statement of Facts The Office of the Capital Collateral Regional Counsel, while representing Emanuel Johnson in his post-conviction challenges to his capital judgments and sentences in the Iris White and Jackie McCahon cases, has also sought to undertake representation of Mr. Johnson to challenge and set aside the judgments and sentences imposed in the non-capital cases involving the trials in the cases pertaining to victims Kate Cornell and LaWanda Giddens. See Appendix I (Motion to Vacate Judgment and Sentence in Case No CF-A-N1, and Motion to Vacate Judgment and Sentence in Case No CF-A-N1) 2 The claims raised in each non-capital pleading appear to be identical, indeed virtually verbatim. The state filed in each of the two non-capital cases a Motion to Discharge the Office of the Capital Collateral 2 Those two pleadings were filed in March of 2002, long after the time allowed by rule - Rule 3.850(b), Fla. R. Crim. P. - for these convictions which became final by the appellate court s decisions on October 6,

5 Representative, arguing that CCRC-M could not lawfully undertake under Chapter 27, Florida Statutes, the representation of a capital defendant to challenge the judgment and sentence in a non-capital case, citing State ex rel. Butterworth v. Kenny, 714 So. 2d 404 (Fla. 1998) and the recent decision in Olive v. Maas, 811 So. 2d 644 (Fla. 2002). See Appendix II. The lower court heard argument on the motion on July 29, 2002 and reserved ruling. (Appendix III) 3 Thereafter CCRC-M filed a Memorandum in Opposition to State s Motion to Discharge. (Appendix IV) On or about October 21, 2002, the lower court apparently entered its order denying the state s Motion to 3 At the conclusion of the July 29, 2002 hearing the lower court opined: I will tell you, Mr. Gruber, that in looking at the statutory scheme under chapter , it appears that that was the legislative intent, to limit it to capital cases, but I will have to say that under the facts of this particular case with it all being one criminal episode and involving multiple victims, it does cause me some concern in doing that and to make sure that Mr. Johnson is appropriately represented. But as Mr. Landry pointed out, maybe that s something you shouldn t consider. It s either they represent him on noncapital cases or they don t and it doesn t matter that it was all one particular episode. (App. III, pp ) Johnson s episode stretched over nine months, and the two homicides in September and October occurred more than eight months after the initial Cornell assault. It would seem temporally that the earlier non-homicidal episode, if it was one, had ended. 5

6 Discharge; however, none of the counsel were notified of this fact until much later. Counsel for the state and CCRC-M orally were informed that the court had ruled during a telephonic status conference on December 5, 2002 and a copy of the order was later mailed to the parties. (Appendix V) The lower court reasoned that the facts and issues raised in the noncapital postconviction proceedings are inseparably intertwined with the issues presented in the capital postconviction proceedings. Additionally, the court opined that the issues were complex and would likely require an evidentiary hearing and that the defendant was entitled to counsel in the non-capital postconviction proceedings. The court concluded that since counsel was familiar with the issues presented and had filed a postconviction motion, CCRC-M should remain as counsel in both the capital and non-capital cases. The state promptly filed a Motion for Rehearing on December 11, (Appendix VI) Counsel for Johnson filed a Response to State s Motion for Rehearing. (Appendix VII) On April 10, 2003, the lower court denied the State s Motion for Rehearing. (Appendix VIII) This petition follows. (F) Argument The lower court s order departs from the essential requirements of law. Florida Statute Chapter 27 provides the 6

7 authority for the Office of Capital Collateral Regional Counsel - Middle (CCRC-M) to provide legal representation to deathsentenced individuals on collateral attack. The Legislature has made its intent unmistakably clear that Capital Collateral and registry counsel are limited to challenging only the conviction and sentence of death of death row inmates. See F.S (intent to provide for collateral representation to challenge only Florida capital conviction and sentence and collateral representation shall not include representation during retrials, re-sentencing proceedings commenced under Chapter 940, or civil litigation ); F.S (1) (directing that capital collateral counsel shall represent death sentenced defendants for the sole purpose of instituting and prosecuting actions challenging the judgment and sentence imposed in the state and federal courts and that counsel shall file only those post-conviction or collateral actions authorized by statute)(emphasis supplied); F.S (requiring regional counsel and all full-time assistants appointed shall serve on a full-time basis and may not engage in the private practice of law)(emphasis supplied); F.S (1)(c) (prohibiting counsel appointed under s from representing a capital defendant during a retrial, a resentencing proceeding, a proceeding commenced under Chapter 940, 7

8 a proceeding challenging a conviction or sentence other than the conviction and sentence of death for which the appointment was made, or any civil litigation other than habeas corpus proceedings.)(emphasis supplied) In State ex rel. Butterworth v. Kenny, 714 So. 2d 404 (Fla. 1998) this Court issued a writ of quo warranto on the Attorney General s petition directing that CCRC has no authority to represent capital defendants in federal civil rights action and has no authority to represent capital defendants in any civil action not directly challenging the legality of the judgments and sentences of such defendants. Id. at 411. The Court rejected CCRC s argument that the legislative intent expressed in section to restrict CCRC from representing capital defendants in civil actions had no legal effect, and similarly rejected the argument that it would constitute an arbitrary application of the law - and would prevent it from filing claims that other inmates not represented by CCRC attorneys could pursue. Id. at 407. This Court explained: In creating CCRC and the right to representation for capital defendants in post-conviction relief proceedings, the Florida legislature has made a choice, based on difficult policy considerations and the allocation of scarce legal resources, to limit the representation of CCRC by (1) prohibiting that representation from extending to representation during trials, re-sentencing, proceedings commenced under chapter 940, or civil litigation, (emphasis added); and (2) providing that such 8

9 representation shall be for the sole purpose of instituting and prosecuting collateral actions challenging the legality of the judgment and sentence imposed (1) (emphasis added). In our view, the statute empowers CCRC with the authority to challenge the validity of a capital defendant s conviction and sentence only through traditional postconviction relief proceedings in criminal and quasicriminal proceedings. Id. at 408. The Court revivified its determination in Kenny, supra, that post-conviction capital counsel acting pursuant to chapter 27 were not free to ignore the legislature s determination that such counsel were not permitted unfettered discretion to litigate whatever they choose irrespective of legislative constraints in Olive v. Maas, 811 So. 2d 644 (Fla. 2002). There, attorney Olive filed an action for declaratory relief seeking a determination of his legal rights and professional duties under F.S ( the Registry Act ) and F.S which provides the terms and conditions of appointment of attorneys as counsel in post-conviction capital collateral proceedings. In one of his counts he asserted that various limitations imposed by section and in the contract would compel him to violate the Rules of Professional Conduct. Turning to his claim that legislative restrictions would prohibit him from acting as a zealous advocate, this Court answered: 9

10 With respect to the provision directed to the scope of representation, Olive again maintains that compliance therewith would trigger a violation of his ethical obligations as an advocate. We have previously addressed and rejected a similar argument in State ex rel. Butterworth v. Kenny, 714 So. 2d 404 (Fla. 1998). In that case, we reviewed the attorney general s petition to prevent CCRC attorneys representing death row inmates from filing civil actions in federal court on behalf of their respective clients. In that case we ultimately concluded: In creating CCRC and the right to representation for capital defendants in postconviction relief proceedings, the Florida legislature has made a choice, based on difficult policy considerations and the allocation of scarce legal resources, to limit the representation of CCRC by (1) prohibiting that representation from extending to representation during trials, re-sentencing, proceedings commenced under chapter 940, or civil litigation, (emphasis added); and (2) providing that such representation shall be for the sole purpose of instituting and prosecuting collateral actions challenging the legality of the judgment and sentence imposed (1) (emphasis added). In our view, the statute empowers CCRC with the authority to challenge the validity of a capital defendant s conviction and sentence only through traditional postconviction relief proceedings in criminal and quasi-criminal proceedings. Kenny, 714 So. 2d Because the Legislature created this registry of attorneys to alleviate CCRC s workload, it is clear that registry attorneys stand in a position similar to CCRC lawyers. It is further clear that the Legislature obviously sought to impose the same restrictions on the scope of representation by both types of capital collateral attorneys. Given our conclusions in Kenny (i.e. upholding the same restrictions on representation by CCRC), and taking 10

11 into account that those same restrictions were imposed on registry attorneys by the Legislature, we find no compelling reason to reach a different result in this case. Thus, we uphold these restrictions on the scope of representation based on the reasoning in Kenny. (emphasis supplied) 811 So. 2d at Under Kenny and Olive, pursuant to chapter 27, the authority of CCRC-M and registry counsel to represent death-sentenced individuals in post-conviction or collateral challenges is limited to challenging the judgment and sentence of death that has been imposed. They may not, despite whatever good intentions they may have, undertake representation of death row inmates in a retrial, a resentencing proceeding, civil litigation other than habeas proceedings; nor may they initiate a post-conviction challenge to an unrelated non-capital judgment and sentence even if imposed on a death row inmate. To allow otherwise would permit CCRC or registry counsel to subvert the carefully-crafted legislative effort based on difficult policy considerations and the allocation of scarce legal resources and degrade the mission of providing competent counsel for challenging capital judgments and sentences by wasting time, effort and resources in pursuit of unauthorized challenges to other convictions which have become final and perhaps even barred by time limits imposed by law. Succinctly and bluntly put, CCRC should not be permitted to exhaust the state treasury 11

12 by initiation of unauthorized challenges to cases beyond the mandate provided by the legislature. The lower court s denial of the motion reasoned that the facts and issues raised in the non-capital pleadings are inseparably intertwined with the issues in the capital pleadings and, citing the possibility of a need for an evidentiary hearing, the court concluded that Johnson was entitled to counsel in the non-capital post-conviction proceedings. The court opined that because of CCRC-Middle s familiarity with the issues presented, they should remain as counsel in both cases. (Appendix V) The state does not question that the lower court can appoint post-conviction counsel in a non-capital case after consideration of the factors enumerated in Graham v. State, 372 So. 2d 1363 (Fla. 1979). The state merely insists that the legislature has determined that the intent of F.S was to provide collateral representation to challenge any Florida capital conviction and sentence ; that the capital collateral regional counsel shall represent death sentenced individuals for the sole purpose of prosecuting collateral actions and shall file only those actions authorized by statute, F.S ; that CCRC counsel must serve on a full-time basis and may not engage in the private practice of law, F.S ; and since CCRC and 12

13 registry counsel are both limited in the scope of their representation in identical fashion, F.S , Olive v. Maas, supra, CCRC-M may not initiate post-conviction litigation to challenge Johnson s non-capital convictions. If the lower court, within its discretion, determines that the appointment of counsel is appropriate to litigate the noncapital judgments and sentences, it is free to appoint other members of the defense bar. 4 The lower court s order notes that the capital and noncapital post-conviction proceedings are inseparably intertwined. Petitioner respectfully submits that it is more accurate to characterize the non-capital motions as an attempt 4 The state is not conceding or wavering in its view that Johnson s collateral challenges to his non-capital convictions are now procedurally barred for the failure to comply with the two year time limitation requirement of Rule 3.850(b), Fla. R. Crim. P. See generally, Barrister v. State, 606 So. 2d 1247 (Fla. 5th DCA 1992); Beaty v. State, 701 So. 2d 856 (Fla. 1997) approving Beaty v. State, 684 So. 2d 206 (Fla. 2nd DCA 1996); Woodall v. State, 719 So. 2d 1 (Fla. 2nd DCA 1998); Dean v. State, 644 So. 2d 122 (Fla. 2nd DCA 1994); Amazon v. State, 537 So. 2d 180 (Fla. 2nd DCA 1989). The state recognizes that the issue of whether Johnson is procedurally barred from challenging his non-capital convictions is not before this Court and has not yet been addressed by the lower court (App. III, p. 12). That issue will have to be pursued below at an appropriate time. The state merely notes that it does not concur in any effort that Johnson may be attempting to avoid the consequences of Rule 3.850(b) - and to render nugatory the time bar jurisprudence of this state - by the tactic of bootstrapping the untimely filing of the noncapital cases with his capital cases. 13

14 to create confusion by inserting facts or arguments that have no relevance whatsoever to a legitimate challenge to the noncapital convictions. Consider the following: (1) In claim I of the post-conviction motion in the noncapital Giddens case (Circuit Court case no ) and in the non-capital Cornell case (Circuit Court case no ) Johnson complains about trial defense counsel obtaining the appointment of Dr. Maher for the purpose of assisting with regard to mitigation evidence. (App. I, pp. 5-12) Quite obviously, the actions of trial counsel, his use or misuse of Dr. Maher as a potential mitigation expert in the penalty phases of the McCahon and White cases can have no bearing and is irrelevant to the collateral challenge to the judgments and sentences in the separate non-capital trials of victims Giddens and Cornell. (2) In claim II of the two non-capital post-conviction motions of Cornell and Giddens, Johnson relies on the facts in the McCahon capital case (App. I, p. 22); he argues a state violation of Brady v. Maryland by describing an unsuccessful motion to continue the Cornell case (App. I, pp ) which has no relevance either to the Giddens case or the capital trials of White and McCahon. Johnson also argues that there was untimely disclosure by 14

15 the prosecution in the McCahon case (App. I, pp ) which has no relevance to the non-capital Cornell and Giddens cases or the other capital case (White). Johnson additionally argues that there was untimely disclosure of notes in the capital (White) case (App. I, pp ) which has no relevance to either of the non-capital trials of Giddens and Cornell. Johnson next alludes to the Demers case (App. I, pp ) which apparently was not prosecuted and has no relevance to the Giddens or Cornell cases. Johnson alleges that improper pressure was put on defense witnesses in the Iris White case (App. I, pp ) which has no relevance to the Giddens or Cornell non-capital cases. Johnson also asserts that he has newly-discovered evidence in the Giddens case (App. I, pp ) which has no relevance to the judgment and sentence in the Cornell case. Obviously whatever errors may have occurred in other cases have no bearing on the non-capital convictions Johnson allegedly asserts that he is attempting to challenge. Certainly, whatever asserted errors that may have occurred in the non-capital cases have no bearing on the capital convictions in the White and McCahon cases. Throwing all four trials and post-convictions motions into one pot amid the hope that courts will label it an acceptable stew is reminiscent of Johnson s prior effort on 15

16 direct appeal - condemned by this Court - to simply cross reference and adopt separate records. Johnson v. State, 660 So. 2d 648, 653 (Fla. 1995) ( However, the intertwining of separate records evident here is not something to be encouraged ). With all due respect to the lower court, the interest of reaching timely and just resolution is not advanced by allowing CCRC-M to act beyond its statutory mandate. The non-capital pleadings are not simply intertwined; they are a jumble of unrelated, irrelevant allegations designed to overwhelm by confusion. Any fear of undue delay that may result should the lower court appoint other counsel is minimized by the fact that CCRC-M is still in the process of preparing an Amended Motion to Vacate. See Appendix IX (Order of April 15, 2003, providing an additional total of ninety days to file an Amended Motion to Vacate) Moreover, irrespective of who the lower court may choose to appoint for the non-capital cases, there can be no prompt appellate resolution of all four cases by this Court. The review of the capital post-conviction final orders would be made by this Court, whereas the unrelated challenges to the noncapital convictions would be made by the Second District Court of Appeal which initially affirmed those judgments and sentences. The argument has been advanced that collateral counsel must 16

17 be afforded the opportunity to challenge the death sentence by showing that the use of a prior conviction as an aggravator is improper under Johnson v. Mississippi, 486 U.S. 578 (1988). That case held the Eighth Amendment required re-examination of a death sentence where a prior conviction used as an aggravator had been set aside. This Court has provided relief for such errors when a prior conviction has been set aside. Preston v. State, 564 So. 2d 120 (Fla. 1990); Rivera v. State, 629 So. 2d 105 (Fla. 1993). But this Court has also denied post-conviction relief where the defendant argued there was a Johnson v. Mississippi violation in a prior conviction, used as an aggravator which had not yet been set aside. Eutzy v. State, 541 So. 2d 1143 (Fla. 1989); Hall v. Moore, 792 So. 2d 447, 450 (Fla. 2001). CCRC-M may rely on the fact of prior vacated convictions in challenging the capital sentence; it may not initiate such challenges on unrelated non-capital judgments. Consequently, Johnson is no license to override the legislature s legitimate restriction on the services to be afforded by post-conviction counsel. The state will suffer material injury for which there is no adequate remedy on appeal. Should the courts allow CCRC-M or registry counsel now to initiate post-conviction challenges in unrelated non-capital cases such as Mr. Johnson s in 17

18 contravention of the legislature s stated intent, such counsel will expend the already scarce state-provided resources to the detriment of other capital defendants for whom they have been properly assigned and whose capital judgments and sentences are not being handled. 5 Permitting unrestrained CCRCs to proceed in this instance and go forward on four evidentiary hearings pertaining to four trials about four victims in four different criminal events, rather than two for the McCahon and White judgments, will unquestionably impact on CCRC s ability to provide the necessary attention and devotion to CCRC s other capital defendants who are statutorily entitled to full consideration of their claims, as well as the state s interest in obtaining prompt and final resolution of capital cases to which CCRC has been lawfully assigned. Simply to wait until all the post-conviction motions are disposed of before an appellate court determines and announces that CCRC-M has exceeded its statutory mandate does not satisfactorily remedy the situation. While a belated 5 To the extent that CCRC-M claims a right to initiate noncapital collateral actions that have not been set aside, it would not take too much time and effort for CCRC-M to exhaust its allotted budget by traveling to Utah to examine the kidnapping conviction of someone like Bundy (see Bundy v. State, 538 So. 2d 445 (Fla. 1989)) or Nebraska or Kansas for inmates such as Eutzy (Eutzy v. State, 541 So. 2d 1143 (Fla. 1989))and Remeta (Remeta v. State, 710 So. 2d 543 (Fla. 1998)). 18

19 recognition that the legislature has imposed legitimate limits which will be enforced by the courts (in accordance with Kenny and Olive) is always helpful to discourage any future noncompliance, unless the Court acts now the rights of CCRC s other clients to the appropriate attention to their cases as envisioned by the legislature s allocution of scarce legal resources will be compromised and the time improperly spent on initiating challenges to the Giddens and Cornell non-capital cases will be forever lost to those other clients. (G) Nature of the relief sought Petitioner, the State of Florida, respectfully requests this Court enter its order to prohibit CCRC-M from representing Emanuel Johnson in any post-conviction matter that challenges the judgments and sentences imposed on Emanuel Johnson in the non-capital cases involving victims LaWanda Giddens and/or Kate Cornell. Alternatively, should this Honorable Court decide that jurisdiction more appropriately rests with another court, the state requests that the cause be transferred to that court. See Art. V, sec. 2(a), Fla. Const. and Fla. R. App. P (b). If the Court determines that an improper remedy has been sought, the cause should be treated as if a proper remedy had been sought. Art. V, sec. 2(a), Fla. Const.; Fla. R. App. P. 19

20 9.040(c). WHEREFORE, Petitioner, the State of Florida, respectfully requests that this Court grant the instant petition for review and enter its Order directing that CCRC-M attorneys not engage in the representation of Mr. Johnson in any motion for postconviction relief challenging the non-capital judgments and sentences involving victims LaWanda Giddens and Kate Cornell. Respectfully submitted, CHARLES J. CRIST, JR. ATTORNEY GENERAL ROBERT J. LANDRY Assistant Attorney General Florida Bar No Concourse Center E. Frontage Rd., Suite 200 Tampa, Florida (813) (813) Facsimile COUNSEL FOR STATE OF FLORIDA CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Regular Mail to Mark S. Gruber, Assistant CCRC, Capital Collateral Regional Counsel - Middle, 3801 Corporex Park Drive, Suite 210, Tampa, Florida and the Honorable Andrew D. Owens, Jr., Chief Judge, P. O. 20

21 Box 48927, Sarasota, Florida 34230, this day of May, CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the size and style of type used in this petition is 12-point Courier New, in compliance with Fla. R. App. P (a)(2). COUNSEL FOR STATE OF FLORIDA 21