IN THE SUPREME COURT OF FLORIDA NO. SC RICHARD BARRY RANDOLPH, Petitioner, MICHAEL W. MOORE, Secretary, Florida Department of Corrections,

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1 IN THE SUPREME COURT OF FLORIDA NO. SC RICHARD BARRY RANDOLPH, v. Petitioner, MICHAEL W. MOORE, Secretary, Florida Department of Corrections, Respondent. PETITION FOR WRIT OF HABEAS CORPUS MICHAEL P. REITER Florida Bar No. Capital Collateral Regional Counsel JOHN M. JACKSON Florida Bar No Assistant Capital Collateral Regional Counsel CAPITAL COLLATERAL REGIONAL COUNSEL NORTHERN REGION 1533 S. Monroe Street Tallahassee, Florida (850) COUNSEL FOR PETITIONER

2 PRELIMINARY STATEMENT This is Mr. Randolph s first habeas corpus petition from his 1989 convictions and sentences of death 1. Art. 1, Sec 13 of the Florida Constitution provides: The writ of habeas corpus shall be grantable of right, freely and without cost. This petition for habeas corpus relief is being filed in order to address substantial claims of error under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, claims demonstrating ineffective assistance of appellate counsel, that Mr. Randolph was deprived of the right to a fair, reliable, and individualized sentencing proceeding and that the proceedings resulting in his convictions and death sentences violated fundamental constitutional imperatives. Citations shall be as follows: The record on appeal from Mr. Randolph s 1989 trial shall be referred to as R. followed by the appropriate page number. All other references will be self-explanatory or otherwise explained herein. INTRODUCTION Significant errors which occurred during Mr. Randolph s capital trial and sentencing were not presented to this Court on direct appeal due to the ineffective assistance of 1 This Court upheld Mr. Randolph's convictions and death sentence. Randolph v. State, 562 So.2d 331 (Fla. 1990).

3 appellate counsel. For example, significant errors regarding Mr. Randolph s right to a fair and individualized sentencing, as well as other Eighth Amendment errors, are presented in this petition for writ of habeas corpus. Furthermore, Mr. Randolph s fundamental rights to a fair trial were violated. Appellate counsel failed to present these and other significant matters to this Court on direct appeal. Had appellate counsel done so, Mr. Randolph would have established his entitlement to a new trial and/or sentencing proceeding. Appellate counsel s failure to present the meritorious issues discussed in this petition demonstrates that his representation of Mr. Randolph involved serious and substantial deficiencies. Fitzpatrick v. Wainwright, 490 So. 2d 938, 940 (Fla. 1986). The issues which appellate counsel neglected demonstrate that counsel s performance was deficient and that the deficiencies prejudiced Mr. Randolph. [E]xtant legal principles...provided a clear basis for...compelling appellate argument[s]. Fitzpatrick, 490 So. 2d at 940. Neglecting to raise fundamental issues such as those discussed herein is far below the range of acceptable appellate performance and must undermine confidence in the fairness and correctness of the outcome. Wilson v. 2

4 Wainwright, 474 So. 2d 1162, 1164 (Fla. 1985). Individually and cumulatively, Barclay v. Wainwright, 444 So. 2d 956, 959 (Fla ), the claims omitted by appellate counsel establish that confidence in the correctness and fairness of the result has been undermined. Wilson, 474 So. 2d at 1165 (emphasis in original). As this petition will demonstrate, Mr. Randolph is entitled to habeas relief. PROCEDURAL HISTORY The Circuit Court of the Seventh Judicial Circuit, Putnam County, entered the judgments of conviction and sentence under consideration. Mr. Randolph was charged by indictment on September 1, 1988, with first degree murder (R. 11). Mr. Randolph was represented by Howard Pearl. Mr. Pearl was the assistant public defender assigned to the above-entitled case. Mr. Randolph was found guilty on February 23, 1989 (R. 583). On February 24, 1989, the jury recommended a death sentence. On April 5, 1989, the trial court imposed a sentence of death (R. 641). On direct appeal, this Court affirmed Mr. Randolph's conviction and sentence. Randolph v. State, 562 So. 2d 331 (Fla. 1990). On April 6, 1992, Mr. Randolph filed his first Motion to 3

5 Vacate Judgement of Conviction and Sentence, and amended the same on July 6, On April 8, 1992, this Court ordered that the Chief Judge of the Seventh Judicial Circuit consolidate all cases in which capital postconviction defendants had raised "Howard Pearl" claims (due to Mr. Pearl's status as a special deputy sheriff), and assigned the consolidated cases to Seventh Circuit Senior Judge B.J. Driver. Judge Driver denied all relief. This Court vacated Judge Driver's order and remanded Mr. Randolph's case for another evidentiary hearing. Randolph v. State, 676 So.2d 369 (Fla. 1996). Over postconviction counsel's objection, the lower court conducted an evidentiary hearing, as well as a hearing on Mr. Randolph's Motion to Compel, on July 22-24, During the course of the hearing, the lower court granted Mr. Randolph's request to depose the custodian of records for the Palatka State Attorney's Office at a later date because he did not show up for the evidentiary hearing. When the custodian was deposed, he produced approximately 1400 pages of public records that had never before been provided to Mr. Randolph's postconviction counsel. Among the 1400 pages of newly provided public records, counsel for Mr. Randolph discovered what appeared to be a 4

6 draft of the judgement and sentence from Mr. Randolph's case. Based on this finding, the lower court granted Mr. Randolph leave to file an amended Motion for Postconviction Relief. On February 24, 1998, the lower court issued an order granting an evidentiary hearing on this motion. The evidentiary hearing was held on April 24, The lower court denied relief. Mr. Randolph filed his amended appeal from the lower court's denial of relief on November 29, The State filed their answer on May 1, 2000, and Mr. Randolph replied on July 26, Oral argument was held on November 6, On December 22, 2000, this Court relinquished jurisdiction to the circuit court for the presentation of additional evidence (and taking depositions) based on the draft judgement and sentence found in the Palatka State Attorney's file. On August 20, 2001, after the completion of the relinquishment proceedings, the record on appeal in Mr. Randolph's case was supplemented with all documents related to these matters. Mr. Randolph now files this petition for writ of habeas corpus raising issues of ineffective assistance of appellate counsel and fundamental error. JURISDICTION TO ENTERTAIN PETITION AND GRANT HABEAS CORPUS RELIEF This is an original action under Fla. R. App. P. 5

7 9.100(a). See Art. 1, Sec. 13, Fla. Const. This Court has original jurisdiction pursuant to Fla. R. App. P (a) (3) and Article V, sec. 3 (b) (9), Fla. Const. The petition presents constitutional issues which directly concern the judgment of this Court during the appellate process, and the legality of Mr. Randolph s sentence of death. Jurisdiction in this action lies in this Court, see, e.g., Smith v. State, 400 So. 2d 956, 960 (Fla. 1981), for the fundamental constitutional errors challenged herein arise in the context of a capital case in which this Court heard and denied Mr. Randolph s direct appeal. See Wilson, 474 So. 2d at 1163; Baggett v. Wainwright, 229 So. 2d 239, 243 (Fla ); cf. Brown v. Wainwright, 392 So. 2d 1327 (Fla. 1981). A petition for a writ of habeas corpus is the proper means for Mr. Randolph to raise the claims presented herein. See, e.g., Way v. Dugger, 568 So. 2d 1263 (Fla. 1990); Downs v. Dugger, 514 So. 2d 1069 (Fla. 1987); Riley v. Wainwright, 517 So.2d 656 (Fla. 1987); Wilson, 474 So. 2d at This Court has the inherent power to do justice. The ends of justice call on the Court to grant the relief sought in this case, as the Court has done in similar cases in the past. The petition pleads claims involving fundamental constitutional error. See Dallas v. Wainwright, 175 So. 2d 6

8 785 (Fla. 1965); Palmes v. Wainwright, 460 So. 2d 362 (Fla. 1984). The Court s exercise of its habeas corpus jurisdiction, and of its authority to correct constitutional errors such as those herein pled, is warranted in this action. As the petition shows, habeas corpus relief would be more than proper on the basis of Mr. Randolph s claims. GROUNDS FOR HABEAS CORPUS RELIEF By his petition for a writ of habeas corpus, Mr. Randolph asserts that his capital conviction and sentence of death were obtained and then affirmed during this Court s appellate review process in violation of his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and corresponding provisions of the Florida Constitution. 7

9 CLAIM I THE TRIAL COURT ERRED IN REFUSING TO GIVE A CAUTIONARY INSTRUCTION TO THE JURY AFTER THE PROSECUTOR ELICITED TESTIMONY DURING THE TRIAL INDICATING THAT MR. RANDOLPH FELT NO REMORSE FOR HIS ACTIONS. AS A RESULT, THE JURY CONSIDERED A NON-STATUTORY AGGRAVATING CIRCUMSTANCE IN DETERMINING MR. RANDOLPH'S SENTENCE, VIOLATING MR. RANDOLPH'S RIGHTS UNDER THE SIXTH AND EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION. APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THIS CLAIM IN MR. RANDOLPH'S DIRECT APPEAL 2. During the guilt phase of Mr. Randolph's trial, the prosecutor specifically elicited testimony from a state witness that Mr. Randolph showed no remorse for killing the victim: Q [by the prosecutor, John Tanner] Did he act remorseful or ashamed, or anything, sad for what he had done? A No. (R. 1151) At a side-bar conference, the defense attorney (Howard Pearl) objected to the question and answer, and moved for a mistrial: 2 In Mr. Randolph's direct appeal, appellate counsel raised the claim that the trial court committed error by refusing to grant Mr. Randolph a mistrial after the prosecutor's improper reference to lack of remorse. Appellate counsel, however, failed to raise a claim regarding the trial court's sua sponte decision not to give the jury a cautionary instruction after the the prosecutor's improper remarks. 8

10 MR. PEARL: May it please the Court? I must make an objection to the last question and answer upon the ground that Counsel has referred to the Defendant's lack of remorse in connection with the incident at the Handy-Way store. This evidence goes over toward and may be considered by the jury in Phase II, if the Defendant should be convicted of first degree murder. It has been held numerous times by the Florida Supreme Court, the latest that I remember being Robinson v. State, that the State may not refer to a Defendant's lack of remorse, because it is a non-statutory aggravating circumstance which may not be mentioned to the jury. Upon those grounds, Your Honor, I must move for a mistrial of this cause, inasmuch as the error is fundamental, and I do not believe any cautionary instruction to the jury could cure it. * * * However, the next question went directly to the issue of whether or not the Defendant showed or expressed remorse. That is a forbidden subject. And it has nothing to do with anything that I asked the witness. It has nothing to do with anything the witness had said before. No door was opened. It was not relative -- not relevant to the inquiry, but was unmitigated fundamental error. (R ) The trial court refused to grant the mistrial. (R. 1153) At the same side-bar conference, the trial court refused 9

11 to give a cautionary instruction to the jury: THE COURT: The subject of remorse, as I understand it, has been held to be not a subject to deal with on the question of guilt or innocence, though it may be used to show various other elements of the crime. I think in this case a cautionary instruction is not appropriate because it will merely emphasize the question, or emphasize the matter in the minds of the jury again. (R. 1153) The trial court entertained no argument by the defense (or the state) before deciding sua sponte not to give a cautionary instruction to the jury. Thus, the jury was allowed to consider testimony that Mr. Randolph felt no remorse for his crimes. Lack of remorse is not one of the aggravating factors to be considered in deciding a capital defendant's sentence. See Fla.Stat ; McCampbell v. State, 421 So.2d 1072 (Fla. 1982). Furthermore, lack of remorse is not a proper or relevant consideration for a jury in a capital trial: Any convincing evidence of remorse may properly be considered in mitigation of the sentence, but absence of remorse should not be weighed either as an aggravating factor nor as an enhancement of an aggravating factor. Pope v. State, 441 So.2d 1073, 1078 (Fla. 1983); See also Robinson v. State, 520 So.2d 1 (Fla. 1988). 10

12 By arguing lack of remorse, the prosecutor was asking the jurors to consider such in deciding both Mr. Randolph's guilt and punishment. Lack of remorse is clearly irrelevant to either the guilt or penalty phases of a capital trial, and arguing it in the guilt phase would naturally carry over into the penalty phase. By making this argument, the prosecutor was asking the jurors to consider a non-statutory agravating circumstance. This was clear fundamental error: In a weighing State like Florida, there is Eighth Amendment error when the sentencer weighs an "invalid" aggravating circumstance in reaching the ultimate decision to impose a sentence. See Clemons v. Mississippi, 494 U.S. 738, 752 (1990). Employing an invalid aggravating factor in the weighing process "creates the possibility... of randomness," Stringer v. Black, 503 U.S. 222, 236 (1992), by placing a "thumb [on] death's side of the scale," id., at 232, thus "creat[ing] the risk [of] treat[ing] the defendant as more deserving of the death penalty," id., at 235. Sochor v. Florida, 504 U.S. 527, 532; 112 S.Ct. 2114, 2119 (1992). Due to the nature of the error, the trial court should have given a cautionary instruction. Although caselaw indicates that it is the job of the defense attorney to request the instruction, in Mr. Randolph's case, the trial court decided sua sponte not to give the instruction. The 11

13 defense attorney was never given the opportunity to request, or argue for, the instruction. Regardless, it was the trial court's duty to instruct the jury that the prosecutor's question (as well as the response) were improper and not relevant to their deliberations: When such matters, as herein set forth, are called to its attention, it is the duty of the Court to reprimand the prosecuting officer, sustain the objections and, if possible, make it clear to the jury that the Court does not condone the conduct of the prosecuting officer, and eradicate the same from the minds of the jury. Gluck v. State, 62 So.2d 71 (Fla. 1952). It was essential that Mr. Randolph's jury not only understand that the prosecutor's question was improper, but that the answer was irrelevant and should be ignored by the jury: When it is made to appear that a prosecuting officer has overstepped the bounds of that propriety and fairness which should characterize the conduct of a state's counsel in the prosecution of a criminal case, or where a prosecuting attorney's argument to the jury is undignified and intemperate, and contains aspersions, improper insinuations, and assertions of matters not in evidence, or consists of an appeal to prejudice or sympathy calculated to unduly influence a trial jury, the trial judge should not only sustain an objection at the time to such improper conduct when objection is offered, but should so affirmatively rebuke the 12

14 offending prosecuting officer as to impress upon the jury the gross impropriety of being influenced by improper arguments. Deas v. State, 161 So. 729 (Fla. 1935). Cf. Bollinger v. State, 402 So.2d 570, 572 (Fla. 1st DCA 1981), where court declined to accept Appellee's argument to deny relief on a similar issue based, in part, on fact that lower court had not offered to give a cautionary instruction after imporper comments by a prosecuting attorney. In Mr. Randolph's case, the trial court not only disregarded its duty to give, or at least offer to give, a cautionary instruction, it also ignored Mr. Randolph's Sixth Amendment rights by not giving defense counsel an opportunity to request and argue for a cautionary instruction. The facts detailed above would have clearly required a cautionary instuction had one been requested by the defense, and the trial court would have been duty bound to give the instruction had defense counsel requested it. Deas; Gluck. Thus, by making the decision before hearing from defense counsel, the trial court not only violated Mr. Randolph's Eighth Amendment rights by allowing the jury to consider a non-statutory aggravating circumstance, it also violated Mr. Randolph's Sixth Amendment right to counsel. Appellate counsel was ineffective for not raising these issues on direct appeal. 13

15 CLAIM II MR. RANDOLPH'S SENTENCE OF DEATH VIOLATES THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION BECAUSE THE PENALTY PHASE JURY INSTRUCTIONS SHIFTED THE BURDEN TO MR. RANDOLPH TO PROVE THAT DEATH WAS INAPPROPRIATE AND BECAUSE THE SENTENCING JUDGE HIMSELF EMPLOYED THIS IMPROPER STANDARD IN SENTENCING MR. RANDOLPH TO DEATH. APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THIS CLAIM IN MR. RANDOLPH'S DIRECT APPEAL. Under Florida law, a capital sentencing jury must be: [T]old that the state must establish the existence of one or more aggravating circumstances before the death penalty could be imposed... [S]uch a sentence could be given if the state showed the aggravating circumstances outweighed the mitigating circumstances. State v. Dixon, 283 So. 2d 1 (Fla. 1973)(emphasis added). This straightforward standard was never applied at the penalty phase of Mr. Randolph's capital proceedings. To the contrary, the court shifted to Mr. Randolph the burden of proving whether he should live or die. Hamblen v. Dugger, 546 So.2d 1039 (Fla. 1989), advises that these claims should be addressed on a case-by-case basis in capital postconviction actions. Mr. Randolph urges this Court to address this claim and, for the foregoing reasons, grant him the relief he is 14

16 entitled to. Shifting the burden to the defendant to establish that mitigating circumstances outweigh aggravating circumstances conflicts with the principles of Dixon, for such instructions erroneously shift to the defendant the burden with regard to the ultimate question of whether he should live or die. In so instructing a capital sentencing jury, a court injects misleading and irrelevant factors into the sentencing determination, thus violating Caldwell v. Mississippi, 472 U.S. 320 (1985), Hitchcock v. Dugger, 107 S. Ct (1987), and Maynard v. Cartwright, 108 S. Ct (1988). Judicial instructions at Mr. Randolph's capital penalty phase required that the jury impose death unless mitigation was not only produced by Mr. Randolph, but also unless Mr. Randolph proved that the mitigation he provided outweighed and overcame the aggravation. The trial court then employed the same standard in sentencing Mr. Randolph to death. This standard obviously shifted the burden to Mr. Randolph to establish that life was the appropriate sentence and limited consideration of mitigating evidence to only those factors proven sufficient to outweigh the aggravation. The standard given to the jury violated state law. The instructions gave the jury inaccurate and misleading information regarding who 15

17 bore the burden of proof as to whether a death recommendation should be returned. As explained below, the standard upon which the judge instructed Mr. Randolph's jury, and upon which the judge relied is a distinctly egregious abrogation of Florida law and therefore eighth amendment principles. According to the standard used in Mr. Randolph's case, the jury could not give a "full consideration", or "give effect to", the mitigating evidence presented at sentencing. Penry v. Lynaugh, 109 S.Ct. 2934, 2951 (1989). Thus, this burden shifting standard "interfered with the consideration of mitigating evidence" by Mr. Randolph's jury, Boyd v. California, 110 S.Ct. 1190, 1196 (1990), and limited the jury's "consideration of any relevant circumstance[s]" that Mr. Randolph put forward during his sentencing. McClesky v. Kemp, 481 U.S. 279, 306 (1987). The instructions provided to Mr. Randolph's jury, and employed by the trial court, violated the Eighth Amendment's "requirement of individualized sentencing in capital cases [which] is satisfied by allowing the jury to consider all relevant mitigating evidence." Blystone v. Pennsylvania, 110 S.Ct. 1078, 1083 (1990). See also Lockett v. Ohio, 438 U.S. 586 (1978); Hitchcock v. Dugger, 481 U.S. 393 (1987). The instructions gave the jury inaccurate and misleading 16

18 information regarding who bore the burden of proof as to whether a death recommendation should be returned. In his instructions to the jury, the judge explained that once aggravating circumstances were found the jury was to recommend death unless the mitigating circumstances outweighed the aggravating circumstances: If you find the aggravating circumstances do not justify the death penalty your advisory sentence should be one of life imprisonment without possibility of parole for twenty-five years. Should you find sufficient aggravating circumstances do exist, it will then be your duty to determine whether mitigating circumstances exist that outweigh the aggravating circumstance. (R )(emphasis added). standard: In the sentencing order, the Court applied an improper THEREFORE, this Court having considered the aggravating factors proven by the state beyond a reasonable doubt and all mitigating factors established by the defense, along with all other relevant testimony and argument as to statutory and non-statutory mitigating factors, this Court does hereby find, by law and evidence, that said mitigating factors do not outweigh the aggravating factors found to exist. The Court has considered these mitigating circumstances and finds that they are insufficient to outweigh the aggravating circumstances set forth above. 17

19 (R. 646). From these instructions, it must be assumed that the jury understood it to be Mr. Randolph's burden of proving whether he should live or die. The instructions, and the standard upon which the court based its own determination, violated Florida law and the eighth and fourteenth amendments in two ways. First, the instructions shifted the burden of proof to Mr. Randolph on the central sentencing issue of whether he should live or die. Under Mullaney, this unconstitutional burden-shifting violated Mr. Randolph's due process and eighth amendment rights. See also Sandstrom v. Montana, 442 U.S. 510 (1979); Jackson v. Dugger, 837 F.2d 1469 (11th Cir. 1988). 3 Moreover, the application of this unconstitutional standard at the sentencing phase violated Mr. Randolph's right to a fundamentally fair and reliable capital sentencing determination, i.e., one which is not infected by arbitrary, misleading and/or capricious factors. The jury was not instructed in conformity with the standard set forth in Dixon. 3 The jury instruction had the same effect as an instruction which told the jury to "presume" death appropriate once any aggravating factors were established. For a presumption to arise the word "presumed" need not be used. When the jury is told that once certain predicate facts have been established, i.e., aggravating circumstances, it must reach a particular result, i.e., death is the appropriate sentence, a mandatory presumption has been employed. That is what occurred here. 18

20 Second, in being instructed that mitigating circumstances must outweigh aggravating circumstances before the jury could recommend life, the jury was effectively told that once aggravating circumstances were established, it need not consider mitigating circumstances unless those mitigating circumstances were sufficient to outweigh the aggravating circumstances. Cf. Mills v. Maryland, 108 S. Ct (1988); Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct (1987). Thus, the jury was precluded from considering mitigating evidence, Hitchcock, and from evaluating the "totality of the circumstances" in considering the appropriate penalty. Dixon v. State, 283 So. 2d at 10. According to the instructions, jurors would reasonably have understood that only mitigating evidence which rose to the level of "outweighing" aggravation need be considered. Therefore, at the time of his direct appeal, Mr. Randolph was (and is) entitled to relief in the form of a new sentencing hearing due to the fact that his sentencing was tainted by improper instructions. Appellate counsel was ineffective for failing to raise this issue in Mr. Randolph's direct appeal. CLAIM III 19

21 THE TRIAL COURT'S AND DEFENSE COUNSEL'S FAILURE TO ASSURE MR. RANDOLPH'S PRESENCE DURING A CRITICAL STAGE OF HIS CAPITAL PROCEEDINGS, AND THE PREJUDICE RESULTING THEREFROM, VIOLATED THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. A criminal defendant's sixth and fourteenth amendment right to be present at all critical stages of the proceedings against him is a settled question. See, e.g., Francis v. State, 413 So. 2d 493 (Fla. 1982); Illinois v. Allen, 397 U.S. 337, 338 (1970); Hopt v. Utah, 110 U.S. 574, 579 (1884); Diaz v. United States, 223 U.S. 442 (1912); Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir. 1982); see also Fla. R. Crim. P "One of the most basic rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial." Illinois v. Allen, 397 U.S. at 338, citing Lewis v. United States, 146 U.S. 370 (1892). Mr. Randolph was involuntarily absent from a critical stage of the proceedings which resulted in his conviction and sentence of death. Mr. Randolph did not waive his right to be present. Furthermore, during his involuntary absence, important matters were discussed between the parties and the trial court: February 24, :00 a.m. 20

22 (The following proceedings were had in chambers out of the presence of the jury and the Defendant.) THE COURT: Madam Reporter, show us in session please out of the presence of the jury. The reason for this session this morning, Mr. Pearl, was to inquire of Counsel as to the aggravating circumstances that they hope to introduce. MR. PEARL: Yes, sir. THE COURT: And to allow you any arguments you may wish to make, and then to ask you for the mitigating circumstances which you hope to deal with. MR. PEARL: Yes, sir. THE COURT: Ask you -- ask the State for any arguments they care to make with regard to those matters. Let's try to resolve that as soon as we can so that we all no [sic] where we're going and get what we need on the record. MR. PEARL: Yes, sir. THE COURT: The State Attorney has indicated that on the draft list that he gave -- that I gave to him the other day, that in the first paragraph he wished to strike out the robbery and/or burglary and insert sexual battery as to County I, which would be -- MR. PEARL: Well, he's entitled -- he's entitled to ask to for that. He's entitled to his felony murder aggravating circumstance. 21

23 THE COURT: Yes, sir, I understand. MR. PEARL: I have some difficulty with the alternative so I'll agree to that. MR. TANNER: Good. THE COURT: And then on Paragraph 2 he asked me to strike the last clause after the word "arrest" dealing with escape, and I have stricken that. MR. PEARL: Yes, sir. But I -- I wish -- I would like to address the appropriateness of giving that charge at all. MR. DALY: Your Honor, one thing I would like -- if this is the formal charge conference has the presence of the Defendant been waived? I'm just concerned about that. MR. PEARL: That's a good question. I don't -- THE COURT: It is not, in my view, the formal charge conference. I'm trying to get some idea of what's going to go on this morning and what he intends to -- MR. PEARL: Just working out parameters, because we do have to have a formal charge conference. THE COURT: I understand that, based on what the evidence shows. I have merely asked the State to tell me what aggravating circumstances he intends to deal with this morning. MR. PEARL: Yes, sir. All right. With respect to the -- I'm referring now to the draft prepared by the 22

24 Court. MR. TANNER: I don't mean to be an old lady, but I think -- I think it should be clear, Your Honor, whether or not Mr. Pearl believes his client's presence is necessary at this stage, because we're almost in an argumentative mode. MR. PEARL: Well, as I say, this is not a formal charge conference. I don't think that anything is going to be decided or settled. MR. TANNER: Okay. MR. PEARL: This is just to set parameters so the Court will know what the position is. And I don't -- I don't believe that his presence is necessary for this since he will be present during the formal conference. THE COURT: As a practical matter, I don't believe this conference is necessary at all. Get yourselves going boys, we're heading to the courtroom. (R ) (emphasis added). The above proceeding was, for all practical purposes, a charge conference. Moreover, it should be noted that there were important issues discussed and decided: < Concession that the felony murder could be relied upon by the State. < Whether Dr. McConaghie could discuss cause of death (R ). < Use of photographs to bolster the State's claim of heinous, atrocious, and cruel (R. 1639). 23

25 < Whether or not there would be any evidence introduced to indicate problems with the infusion of O negative blood into the victim (R ). Mr. Randolph never effectively waived his presence at this "critical stage" of his trial. If there is any "reasonable possibility" that Mr. Randolph's rights were prejudiced because of his absence, he is entitled to relief. See Proffitt, 685 F.2d at See also Estes v. United States, 335 F.2d 609, 618 (5th Cir. 1964). Clearly, in this case, there is such a possibility. The denial of Mr. Randolph's right to be present violated his rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Appellate counsel was ineffective for failing to raise this issue on direct appeal. CLAIM IV DURING THE PENALTY PHASE CLOSING ARGUMENTS, THE STATE INCORRECTLY AND IMPERMISSIBLY TOLD THE JURY THAT SYMPATHY TOWARDS MR. RANDOLPH WAS AN IMPROPER CONSIDERATION, IN VIOLATION OF MR. RANDOLPH'S SIXTH, EIGHTH, AND FOURTEENTH AMENDMENT RIGHTS, AND DEPRIVING MR. RANDOLPH OF A RELIABLE AND INDIVIDUALIZED SENTENCING DETERMINATION. APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT RAISING THIS CLAIM IN MR. RANDOLPH'S DIRECT APPEAL. During the penalty phase closing arguments, the jury in 24

26 Mr. Randolph's trial was told by the prosecutor that feelings of sympathy could play no part in their deliberations as to Mr. Randolph's ultimate fate. In this phase of the case, when you retire to deliberate, your sentence should be based upon the evidence, not upon emotion, pity, or sympathy, anger, or hatred. But only upon the evidence and the law as His Honor will give you. (R. 1802). This was error that violated Mr. Randolph's rights. In a capital sentencing proceeding, the United States Constitution requires that a sentencer not be precluded from "considering, as a mitigating factor, any aspect of defendant's character or record... that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604 (1978); Hitchcock v. Dugger, 481 U.S. 393 (1987). Furthermore, the Eighth Amendment requires "particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death." Woodson v. North Carolina, 428 U.S. 280, 303 (1976). These principles require that the jury be free to consider feelings of sympathy and mercy in making its sentencing recommendation. Furthermore, consideration of mercy and sympathy in the 25

27 penalty phase of a capital trial is appropriate: [T]he validity of mercy as a sentencing consideration is an implicit underpinning of many United States Supreme Court decisions in capital cases. See, e.g., Woodson v. North Carolina, 428 U.S. 280, 303, 96 S.Ct. 2978, 2990, 49 L.Ed.2d 944 (l976)(striking down North Carolina's mandatory death penalty statute for the reason, inter alia, that it failed "to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death"); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (l978)(striking down Ohio's death penalty statute, which allowed consideration only of certain mitigating circumstances, on the grounds that the sentencer may not "be precluded from considering as a mitigation factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death") (emphasis in original). The Supreme Court, in requiring individual consideration by capital juries and in requiring full play for mitigating circumstances, has demonstrated that mercy [and sympathy] has its proper place in capital sentencing. The [prosecutor's closing] in strongly suggesting otherwise, misrepresents this important legal principle. Wilson v. Kemp, 777 F.2d 621, 624 (11th Cir. 1985). The prosecutor's admonishment to the jury that it must disregard any sympathy or mercy (pity) they may have felt for Mr. Randolph undermined the jury's ability to weigh and evaluate all of the mitigating evidence. Parks v. Brown,

28 F.2d 1545 (10th Cir. 1988)(en banc), rev'd on other grounds sub. nom. Saffle v. Parks, 494 U.S. 484 (1990). The jury's role in the penalty phase is to evaluate the circumstances of the crime and the character of the offender before deciding whether death is an appropriate punishment. Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 586 (1978). A demand to disregard the consideration of emotions improperly suggests to the sentencer "that it must ignore the mitigating evidence about the [petitioner's] background and character." California v. Brown, 479 U.S. 538 (1987)(O'Connor, J., concurring). By foreclosing the jury from considering emotion, sympathy or mercy toward the defendant, the prosecutor and the court prevented the jury from properly considering the mitigating evidence about the defendant. The jury instruction "carries with it the danger of leading the jury to ignore sympathy that is based on the mitigating evidence." Parks, 860 F.2d at The Parks court noted that mitigating evidence must include compassion, understanding, and mercy, since the jury understands the defendant's personality in human terms. Id. at Parks recited the long line of Supreme Court cases recognizing the constitutional right of a defendant to have the jury consider these issues. See Gregg 27

29 v. Georgia, 428 U.S. 153 (1976)(court can consider mercy in determining death penalty); Woodson v. North Carolina, 428 U.S. 280 (1976)(mitigating evidence is allowed during sentencing to provide for the consideration of "compassionate or mitigating factors stemming from the diverse frailties of human kind"); Eddings v. Oklahoma, 455 U.S. 104 (1982)(sentencer may not refuse to consider, as a matter of law, any relevant mitigating evidence); Caldwell v. Mississippi, 472 U.S. 320 (1985)(it is improper to shift sentencing responsibility to the appellate court because appellate court is not equipped to consider "the mercy plea [which] is made directly to the jury."). Intertwined with sympathy are considerations of mercy, humane treatment, and compassion for the defendant. Parks, 860 F.2d at : Therefore, the instruction that absolutely precluded the jury from considering any sympathy for [defendant] improperly undermined the jury's ability to consider fully petitioner's mitigating evidence. Furthermore, if a juror is precluded from responding with sympathy to the defendant's mitigating evidence of his own unique humanness, then there is an unconstitutional danger that his counsel's plea for mercy and compassion will fall on deaf ears. Id. at The Prosecutor's admonishment to the jury that they must disregard any sympathy for Mr. Randolph created an impermissible risk that the jury did not fully consider Mr. 28

30 Randolph's mitigating factors in making the sentencing decision. Id. Clearly, this claim should have been raised in Mr. 29

31 Randolph's direct appeal. See Robinson v. Moore, 773 So.2d 1 (Fla. 2000). Furthermore, nothing in the law at the time of Mr. Randolph's direct appeal suggested that this claim was without merit. In fact, quite the opposite. The Supreme Court reversed Parks without reaching the merits of the petitioner's claim because the petitioner was precluded from seeking the benefit of a "new rule" in a habeas corpus proceeding under the doctrine of Teague v. Lane, 489 U.S. 288 (1989). Saffle v. Parks, 494 U.S. 484 (1990). Therefore, the en banc opinion of the Tenth Circuit in Parks stands as the most thorough, reasoned and persuasive discussion on this issue of emotion, sympathy and mercy instructions, and it existed at the time of Mr. Randolph's direct appeal. The last Supreme Court decision to comment on an issue similar to this was California v. Brown, 479 U.S. 538 (1987). In Brown, the Court analyzed an instruction stating that the jury could not be swayed by "mere sentiments, conjecture, sympathy, passion, prejudice, public opinion or public feeling." In a five-tofour decision, the Court upheld the instruction because of the modifier "mere." Id. at 542. The Parks court distinguished Brown because of its "crucial" reliance on the modifier "mere." Parks, 860 F.2d at As in Parks, the State's argument to Mr. Randolph's jury contained no such modifier. 30

32 Mr, Randolph's direct appeal counsel was ineffective for failing to raise this claim in his appeal. This Court should adopt the reasoning of Parks as a matter of Florida constitutional law, find appellate counsel ineffective, and grant Mr. Randolph habeas relief. There was much in Mr. Randolph's life and background that evokes sympathy and mercy. Telling the jury to disregard such feelings in effect told them to disregard what they had heard in mitigation. CLAIM V IMPROPER CONDUCT BY THE PROSECUTOR RENDERED MR. RANDOLPH'S DEATH SENTENCE FUNDAMENTALLY UNFAIR AND UNRELIABLE IN VIOLATION OF THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS. THE PROSECUTOR'S ARGUMENT UNCONSTITUTIONALLY AND INACCURATELY DILUTED THE JURY SENSE OF RESPONSIBILITY FOR SENTENCING. APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT RAISING THIS FUNDAMENTAL ERROR IN MR. RANDOLPH'S DIRECT APPEAL. A prosecutor's concern in a criminal prosecution "is not that it shall win a case, but that justice shall be done." United States v. Modica, 663 F.2d 1173, 1181 (3rd Cir. 1981), cert. denied, 450 U.S. 989 (1982). While a prosecutor "may strike hard blows, he is not at liberty to strike foul ones." Id. These principles are fully applicable to the closing argument of a penalty phase. In Teffeteller v. State,

33 So.2d 840 (Fla. 1983), the Florida Supreme Court remanded the case for a new sentencing hearing where the prosecutor's closing remarks "were patently and obviously made for the express purpose of influencing the jury to recommend the death penalty" on the basis of an improper argument. Id, at 845. This is what occurred in Mr. Randolph's case. In situations similar to Mr. Randolph's, this Court has noted that "the only safe rule appears to be that unless [it] can be determine[d] from the record that the conduct or improper remarks of the prosecutor did not prejudice the accused, the...[sentence] must be reversed." Id, citing Pait v. State, 112 So.2d 380, (Fla. 1959). At the penalty phase of Mr. Randolph's trial, the State argued that the decision to give Mr. Randolph the death penalty is no more serious than having the family dog put to death. When you take that old pet that can't get up anymore, and if you can afford to go to the vet you take him to the vet. If you can't, I think my father-in-law put the dog in the trunk of the car and gave him gas, carbon monoxide. (R. 1810). This was a clearly improper argument that had nothing to do with the aggravating factors the jury was to consider. In Stewart v. State, 51 So. 2d 494 (Fla. 1951), the court 32

34 stated: The trial of one charged with a crime is the last place to parade prejudicial emotions or exhibit punitive or vindictive exhibitions of temperament. See also Johnson v. State, 88 Fla. 461, 102 So. 2d 549 (1924); Glassman v. State, 377 So. 2d 208 (Fla. 3d DCA 1979). The prosecutor's actions were so prejudicial that they fundamentally tainted his trial. Rhodes v. State, 93 So. 2d 80 (Fla ); Abbott v. State, 334 So. 2d 642 (Fla. 3d DCA 1976); Ailer v. State, 114 So. 2d 348 (Fla. 2d DCA 1959). This error of prosecutorial misconduct rendered Mr. Randolph's trial fundamentally unfair in violation of Mr. Randolph's constitutional rights. United States v. Eyster. It is well-settled that improper prosecutorial misconduct can "so infect the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974), cited and followed in Sawyer v. Smith, 110 S. Ct. 2822, 2827 (1990). Florida courts have recognized that prosecutorial misconduct, when taken as a whole, can deprive a defendant of his fundamental right to a fair trial, Pope v. Wainwright, 496 So. 2d 798, 801 (Fla. 1986); Peterson v. State, 376 So. 2d 1230 (Fla. 4th DCA 1979), cert. denied, 386 So. 2d 1230 (Fla. 4th DCA 1979), cert. denied, 386 So. 2d (Fla. 1980). 33

35 Further, in Mann v. Dugger, 844 F.2d 1446 (11th Cir. 1988)(en banc), relief was granted to a capital habeas corpus petitioner presenting a claim involving prosecutorial and judicial comments and instructions which diminished the jury's sense of responsibility and violated the eighth amendment in the same way in which the comments and instructions discussed below violated Mr. Randolph's eighth amendment rights. Mr. Randolph is entitled to relief under Mann. A contrary result would result in the totally arbitrary and freakish imposition of the death penalty and would violate eighth amendment principles. Under Florida's capital statute, the jury has the primary responsibility for sentencing. In Hitchcock v. Dugger, 481 U.S. 393 (1987), the United States Supreme Court held that instructions for the sentencing jury in Florida were governed by the Eighth amendment. Mr. Randolph's jury, however, was led to believe by the prosecutor's improper argument that its determination meant very little. Under Hitchcock, the sentencer was erroneously instructed. As a result, Mr. Randolph was denied the individualized sentencing to which he was entitled, before a jury which felt the full import of its sentencing decision. This was fundamental error that should have been raised in Mr. 34

36 Randolph's direct appeal to this Court. An issue involving fundamental error, error that goes to the heart of the integrity of the judicial process, may be reviewed even in the absence of an objection at trial. Robinson v. State, 520 S0.2d 1, 5 (FLa. 1988); Pait. Appellate counsel was ineffective for failing to raise this claim. CONCLUSION AND RELIEF SOUGHT For all the reasons discussed herein, Mr. Randolph respectfully urges this Court to grant habeas corpus relief. 35

37 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing Petition has been furnished by United States Mail, firstclass postage prepaid, to Judy Taylor Rush, Assistant Attorney General, 444 Seabreeze Blvd., 5th Floor, Daytona Beach, FL, 32118, on December, MICHAEL P. REITER Florida Bar No Capital Collateral Regional Counsel - Northern Region JOHN M. JACKSON Florida Bar No Assistant Capital Collateral Counsel COUNSEL FOR PETITIONER CERTIFICATE OF TYPE SIZE AND STYLE This brief is presented in 12 point Courier, a font that is not proportionately spaced. JOHN M. JACKSON 36