IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA WILLIAM FREDRICK HAPP, Appellant, v. CASE NO. 93,121 STATE OF FLORIDA, Appellee. / ON APPEAL FROM THE FIFTH JUDICIAL CIRCUIT IN AND FOR LAKE COUNTY, FLORIDA ANSWER BRIEF OF APPELLEE ROBERT A. BUTTERWORTH ATTORNEY GENERAL KENNETH S. NUNNELLEY Assistant Attorney General Fla. Bar # Seabreeze Blvd. 5th FL Daytona Beach, FL (904) COUNSEL FOR APPELLEE STATEMENT OF THE CASE

2 On July 31, 1989, Happ was sentenced to death for the May, 1986, murder of Angela Crowley. Happ was also sentenced to three consecutive life sentences for various non-capital convictions. Happ appealed his convictions and sentences to this Court, which affirmed those convictions and sentences on January 23, Happ v. State, 596 So.2d 991 (Fla. 1992). Happ sought certiorari review, and, on November 2, 1992, the United States Supreme Court vacated the sentence of death and remanded the case for reconsideration in light of Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). Following reconsideration, this Court affirmed the death sentence, finding that the Espinosa issue was procedurally barred. Happ v. State, 618 So.2d 205 (Fla. 1993). This Court also found, in the alternative, that any error was harmless beyond a reasonable doubt. Id. On January 17, 1995, Happ filed a Florida Rule of Criminal Procedure motion in the Circuit Court of Citrus County, Florida. On October 12, 1995, Happ filed an Amended Motion to Vacate (R3-114 or R ). The State duly filed an answer to the motion on April 11, 1996, (R ) and, on July 29, 1996, a Huff hearing was conducted before Circuit Court Judge Jerry Lockett. (R ). An evidentiary hearing was conducted on certain claims on December 16-17, 1996, and, on April 23, 1998 an order was issued denying all relief. (R ). Happ's motion for rehearing was denied on May 11, 1998, (R978), and, on May 18, 1998, (R1014), 1

3 notice of appeal was given. The Record was transmitted on September 21, 1998, and Happ filed his initial brief on or about January 20, STATEMENT OF THE FACTS The Trial Proceedings On direct appeal, this Court summarized the evidence against Happ as follows: The relevant facts indicate that on May 24, 1986, a fisherman found the partially clad body of a woman on the bank of the Cross-Florida Barge Canal in northwest Citrus County. The woman's shoulders were covered by a tee shirt that was pulled up to her underarms, and a pair of stretch pants were tied tightly around her neck. The medical examiner testified that her face and skull were badly bruised and hemorrhaged, that she had multiple scrapes on her back and right heel, that she had suffered ten to twenty hard blows to the head, and that she had been anally raped before death. The cause of death was found to be strangulation. The victim had driven from Fort Lauderdale to Yankeetown to visit a friend. Several newspaper carriers claimed to have seen a small car at a Cumberland Farms store in Crystal River at approximately 2:40 a.m. on May 24, and to have heard a woman scream at approximately the same time. The victim's car was found on May 25 at a restaurant on U.S. Highway 19, approximately six-tenths of a mile south of the Cumberland Farms store. The window on the driver's side of the car had been shattered. The glass from the car was consistent with glass found at the Cumberland Farms store and at the canal where the victim's body was found. A shoe print found outside the driver's side of the car was later found to match one of Happ's shoes. Happ's fingerprints were also found on the exterior of the car. Happ was indicted for first-degree murder, burglary of a conveyance with a battery therein, kidnaping, and sexual battery likely to cause serious personal injury. Happ's first jury trial ended in a mistrial caused by the prosecutor's violation of an order in limine prohibiting 2

4 the State from revealing Happ's prior record. Before the second trial commenced, Happ filed a motion to dismiss the indictment on double jeopardy grounds. The motion was denied, and his petition to the Fifth District Court of Appeal for a writ of prohibition on this issue was also denied. At the second trial, a friend of Happ's testified that he had seen Happ walking down U.S. Highway 19 toward the barge canal at 11:00 p.m. on May 23, and that he saw Happ the next morning with a swollen right hand. Happ's former girlfriend testified that Happ had told her he broke a car window with his fist. Richard Miller, an inmate housed near Happ at the Citrus County Jail, testified at the first trial that Happ had described how he abducted a woman from a parking lot, took her to the canal, beat her, anally and orally raped her, and eventually strangled her. This testimony was read to the jury at the second trial because Miller refused to testify in that proceeding. The jury found Happ guilty of all charges. At the penalty phase, the State produced evidence of Happ's prior convictions in California, including an incident of an abduction and armed robbery. The medical examiner testified that a person usually chokes for two minutes before losing consciousness and becomes brain dead after four or five minutes. An adult education teacher at the jail testified that Happ had average intelligence, knew right from wrong, was not mentally deficient, and helped teach math to other inmates. Happ's sister testified concerning Happ's age, poor upbringing, and drug and alcohol use. Happ's aunt testified that, when Happ lived with her, he looked for work and helped her with her ailing husband. The jury in the penalty phase recommended the death penalty by a vote of nine to three. The trial judge sentenced Happ to death for the murder of the victim and to three consecutive life sentences on the other three counts. The judge found the following four aggravating circumstances: (1) that Happ had prior convictions for violent felonies; (2) that the murder was committed during the commission of sexual battery, kidnaping, and burglary; (3) that the murder was especially heinous, atrocious, or cruel; and (4) that the murder was cold, calculated, and premeditated. The trial judge also found three mitigating circumstances, including Happ's age, family history, and educational aid to other inmates. The trial judge concluded that the 3

5 mitigating circumstances were outweighed by the aggravating circumstances and imposed the death penalty. Happ v. State, 596 So.2d 991, (Fla. 1992). This Court affirmed the convictions and sentences, including the death sentence. Id. at 997. The Direct Appeal Issues On direct appeal from his convictions and sentences, Happ raised the following guilt phase issues, as framed by this Court: [T]hat the trial court erred in: (1) denying his motion to dismiss the indictment on double jeopardy grounds; (2) denying his motion to suppress evidence of his statements to the police and the fruits thereof; (3) refusing to answer a question asked by the jury during deliberations; (4) restricting the presentation of evidence that Richard Miller had admitted to lying during his first testimony; (5) failing to find that the State did not express non-racial reasons for striking one of the members of the venire; (6) allowing the reading of Miller's testimony; (7) commenting on the evidence and limiting defense counsel's closing arguments; (8) refusing to allow defense counsel to refer to the key state witness as a "snitch" or "squealer"; and (9) that Happ was denied a fair trial due to the cumulative effect of numerous errors that occurred below. Happ v. State, 596 So.2d at 993. Happ raised four claims concerning the penalty phase of his trial: that the trial court erred in: (1) refusing to admit evidence of plea negotiations; (2) finding that the murder was especially heinous, atrocious, or cruel; (3) failing to hold that the death penalty was disproportionate to the facts of the case; and (4) in failing to find that death penalty unconstitutional. Happ v. State, 596 So.2d at 996. The Court held that the cold, calculated, and premeditated aggravating circumstance had erroneously been applied to Happ, but further held that: 4

6 [t]he elimination of this aggravating circumstance does not eliminate any facts and circumstances that could appropriately be considered in the sentencing process in imposing the death penalty. Given the record and the other established aggravating circumstances, we find that the elimination of this circumstance would not have changed the sentence imposed in this case. The remaining claims are without merit and require no discussion. Happ v. State, 596 So.2d at 997. Happ then sought certiorari review in the United States Supreme Court. That Court granted the petition, vacated the judgment, and remanded the case to the Florida Supreme Court for "further consideration in light of Espinosa v. Florida". Happ v. Florida, 113 S.Ct. 399 (1992). This Court affirmed the death sentence on remand, stating: We find that, although Happ objected to the reading of the defective instruction, his objection was not based on the assertion that the instruction was unconstitutionally vague but on the assertion that the instruction was inapplicable under the circumstances of the case. Accordingly, we find that the vagueness issue was not preserved for review and is procedurally barred. Turner v. Dugger, 614 So.2d 1075 (Fla. 1992). See also Ragsdale v. State, 609 So.2d 10 (Fla. 1992). Happ v. State, 618 So.2d 205, 206 (Fla. 1993). This Court further found, in the alternative, that: Were we to address the issue, we would find that the reading of the defective instruction could not have affected the jury's recommendation of death and that any error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986). At trial, the medical examiner testified that the victim's face and skull were badly bruised and hemorrhaged, that she had multiple scrapes on her back and right heel, that she had suffered ten to twenty hard blows to the head, and that she had been anally raped before death. 5

7 Happ, 596 So.2d at 992. The medical examiner also testified that the cause of death was strangulation and that "a person usually chokes for two minutes before losing consciousness." Id. The evidence presented clearly established the "heinous, atrocious, or cruel" aggravating factor. We find that, regardless of the instruction given, the jury would have recommended and the trial judge would have imposed the same sentence. See Thompson v. State, 619 So.2d 261 (Fla. 1993); Slawson v. State, 619 So.2d 255 (Fla.1993). Accordingly, for the reasons expressed here and in our earlier decision, we affirm Happ's sentence of death. Happ v. State, 618 So.2d at THE RULE PROCEEDINGS Happ filed his Florida Rule of Criminal Procedure motion on or about January 17, The State duly filed its response, and, on July 29, 1996, the Circuit Court conducted a Huff hearing as required by Huff v. State, 622 So.2d 982 (Fla. 1993). The Court initially determined that only two of the 32 claims contained in the motion required an evidentiary hearing. (R929). Specifically, the State agreed to an evidentiary hearing on Claim III without waiving any potential procedural bar defense. Id. The Court reserved ruling on a portion Claim XVIII, which was a claim of ineffective assistance of counsel based upon a claimed failure by trial counsel to investigate Happ's background. Id. The Court directed that the claim be amended to specifically plead the basis for the ineffectiveness claim -- that amendment was never done, and the Court dismissed the claim as insufficiently pleaded. Id. The evidentiary hearing on Claim III was conducted on February 20, 6

8 1997. (R ). In late February of 1997, the State discovered that certain testimony was inaccurate, and filed a notice to that effect in the Circuit Court. 1 An evidentiary proceeding was conducted on that matter on August 18, (R ). On April 23, 1998, the Court issued a written order denying the motion for post-conviction relief. (R928 et seq). Happ gave notice of appeal on May 18, 1998, and the record was transmitted on January 20, 1999 (R1305). The Rule Evidence During the August 18, 1997, evidentiary hearing, the following evidence was presented. John Ingraham met Happ in the Citrus County Jail, where he was housed in a cell with Happ, Kelly Joe Finnley, Rick Miller, and Dennis Freeman. (R1032). According to Ingraham, Miller and Freeman were informants for the State. (R1035; 1039). Ingraham told Happ's attorneys what he knew about Miller, and was transported to the courthouse during Happ's first trial which ended in a mistrial. (R1047). Ingraham is a convicted felon, and has previously filed a petition alleging that he was incompetent at the time of his 1987 trial. (R1049). That allegation of incompetency is, by Ingraham's own admission, false. (R1052). Kelly Joe Finnley is incarcerated in the Florida Department of 1 The State filed a motion to supplement the record with this notice on April 15,

9 Corrections for the offense of first degree murder. (R ). Finnley knows Happ from having been incarcerated with him in the Citrus County Jail. (R1061). According to Finnley, Happ never said anything about the murder he was charged with. (R1066). Finnley pleaded guilty to the offense of first degree murder, and, subsequent to that plea, filed a Florida Rule of Criminal Procedure motion in which he alleged that he was incompetent at the time of his guilty plea. (R1067). Finnley admitted that that claim was false because he is not and was not incompetent. (R1067). Finnley testified that while he would raise a false claim, he would not lie on the witness stand. (R1069). Royce Phillip Croft is incarcerated in the Florida Department of Corrections following a plea of nolo contendre to murder. (R ). He knows Happ from the Citrus County Jail. (R1072). Croft testified that he never heard Happ confess, and that Richard Miller told Croft that he had made a deal with the State that would get him out of Florida. (R ; 1082). Croft talked to Happ's lawyers about Freeman, but does not remember if he talked to them about Miller. (R1081). Croft also testified that Brad King (the State Attorney for the Fifth Judicial Circuit) threatened him in an effort to secure his testimony against Happ. (R1077). According to Croft, Brad King offered him a plea bargain, and was in the courtroom when he entered a plea. ( ). However, the true facts are that Croft's case was prosecuted by the State Attorney's 8

10 Office of the Seventh Judicial Circuit following a governor's assignment. (R1087). Croft admitted to substantial animosity toward the State Attorney's Office for the Fifth Circuit, and admitted to stating that, if a person committed the crime that Happ committed, he should have enough sense to get rid of the physical evidence. (R1088; 1091). Croft testified that he would not talk to an investigator from the State Attorney's Office who attempted to interview him in connection with this proceeding, and stated that Happ's present attorneys had told him not to talk to anyone. (R1096). Virgil Fox is incarcerated in the Florida Department of Corrections on, inter alia, two counts of aiding and abetting first degree murder. (R ). He knows Miller from having been incarcerated in Kansas State Prison. (R1099). According to Fox, Miller was a good source of drugs because his parents would visit him every weekend and bring drugs to him. (R1100-1). According to Fox, Miller knew nothing about Happ's case, but rather came up with the "facts" based upon newspaper articles and played along with the investigators in an effort to get sent to a prison other than in Florida. (R1102). Fox said that Miller "made it up as he went along". (R1104). Fox has "five or six" felony convictions. (R1107). He testified that he met and became acquainted with Miller in the middle of 1989 during conversations with him "on the compound". (R ). Fox was transferred to Florida from Kansas in February 9

11 of (R1109). Jeffrey Pfister represented Happ at trial, along with Mark Nacke. (R ). Mr. Pfister was aware of letters from Croft to the State Attorney's Office. (R1184). He does not recall whether Ingraham told him or Mark Nacke anything about Miller and Freeman being informants because he has not been given access to his entire file by Happ's attorneys, and, moreover, because Miller and Freeman were witnesses that Mark Nacke was responsible for. (R1186; 1190). 2 Miller stated during his deposition that he wanted to be moved out of state because he feared for his safety, and, as a condition of the written agreement between Miller and the State, was required to take and pass a polygraph examination. (R ). Marcel McGowin is an investigator with the Kansas Department of Corrections, and is assigned to Kansas State Prison. (R ). That facility has a maximum security unit which is situated next to a medium security unit -- the two units are separated by a wall. (R1216). Maximum security inmates are not allowed on the medium security side of the institution. (R1217). Miller entered Kansas State Prison on April 12, 1989, and was housed on the maximum security side of the facility until 1994, when his custody classification was reduced to medium. (R1218). Fox has also been housed in Kansas State Prison, and, before July 1, 1989, was housed 2 Happ, who has the burden of proof, did not call Mark Nacke to testify at this hearing. 10

12 on the medium security side of the institution. (R1219). Fox was in the clinic (which is on the maximum security side) on July 2 and 3, 1989, and was housed in segregation from July 3 until November 22, (R1220). Miller and Fox could have come into contact with each other only during the two days during July when Fox was in the clinic. (R1227; 1234). From November 22, 1989 until February 6, 1990, Miller and Fox were in the same "cell house", but never shared a cell or a run area. (R1229). McGowin checked the visitor logs as far back as possible (January 1992), and determined that Miller's mother has never visited him at Kansas State Prison. (R1230). Anthony Tatti has been a Fifth Circuit Assistant State Attorney since October (R1237-8). Before that, he was an assistant public defender in the same circuit. (R1238). Mr. Tatti represented Croft in his mistrial and in the ultimate guilty plea -- the State Attorney's Office for the Fifth Judicial Circuit took no part in those proceedings. (R1238). He took part in a meeting between Croft and State Attorney King regarding the Happ case at the Tomoka Department of Corrections facility, and testified that he was never absent from that meeting and would never have allowed Croft to be alone with Mr. King. (R ). Mr. King never threatened Croft in any way, and, if that had occurred, Mr. Tatti would have terminated the meeting immediately. (R1240). Mr. Tatti also represented Miller in his Citrus County case which ended in a 11

13 guilty plea. (R1240). He had no indication that Miller intended to be a witness against Happ. (R1241). Jerry Thompson is a retired member of the Citrus County Sheriff's Office. (R1243). He was the lead investigator in Happ's case (R1245), and knows Miller from his involvement in this case. (R1244). He did not meet Miller until he had already been sent to Union Correctional Institution, and did not know of him from Citrus County. (R1244). Mr. Thompson never asked Miller to gather information for him about the Happ case, and never promised Miller anything in return for information. (R1245-6). Ken Ryam is an investigator for the Fifth Circuit State Attorney's Office. (R1132). 3 He conducted a tape-recorded interview with Miller on August 26, (R1133). That tape recording was admitted into evidence, and, in substance, is a statement by Miller that his trial testimony was truthful. (R1260, et seq). The parties stipulated that an investigator for Happ's attorneys interviewed Miller, and he stated that his trial testimony was the truth and he was not going to change his testimony. (R1276). SUMMARY OF THE ARGUMENT The collateral proceeding trial court properly denied an evidentiary hearing on the remaining Florida Rule of Criminal Procedure claims because such issues were either procedurally 3 This witness was taken out of order at the evidentiary hearing. (R1132). 12

14 barred, insufficiently pleaded, or meritless on their face. There was no basis for an evidentiary hearing on any additional claims or issues. The claim concerning the jury instruction given on the prior violent felony aggravating circumstance is alternatively procedurally barred and without merit, as the lower court found. The heinous, atrocious, or cruel aggravating circumstance jury instruction claim is procedurally barred because it has already been litigated and decided adversely to Happ by this Court. The "during the course of a felony" aggravating circumstance jury instruction claim is procedurally barred because it could have been but was not raised on direct appeal. The "burden shifting jury instruction" claim is procedurally barred because it could have been but was not raised on direct appeal. The "unconstitutional capital sentencing statute" claim is procedurally barred because it could have been but was not raised on direct appeal. The "prohibition on post-trial juror interviews" issue is procedurally barred because it could have been but was not raised on direct appeal. Moreover, the only claim about which such interviews could reasonably be conducted has no factual basis. The perjured testimony claim is improperly pleaded, and, moreover, was resolved against Happ on the merits in connection 13

15 with the claim that was developed at the evidentiary hearing. Those credibility determinations should not be disturbed. The prosecutorial argument claim is procedurally barred because it could have been but was not raised at trial or on direct appeal. Moreover, when the arguments at issue are read in context, this claim lacks merit. ARGUMENT I. THE DENIAL OF AN EVIDENTIARY HEARING CLAIM On pages of his brief, Happ argues that he is entitled to an evidentiary hearing on other claims in addition to the Brady v. Maryland claim on which an evidentiary hearing was conducted. For the reasons set out below, the collateral proceeding trial court properly declined to conduct an evidentiary hearing on the claims referred to in Happ's brief. Happ's first claim of error in the denial of an evidentiary hearing is based upon the use of witness Miller's testimony from the first trial. As the collateral proceeding trial court found, this issue was litigated at trial, and could have been but was not raised on appeal. (R934). That finding of a procedural bar is correct under settled Florida law, and should not be disturbed. See, e.g., Cherry v. State, 659 So.2d 1069 (Fla. 1995); Kight v. Dugger, 574 So.2d 1066 (Fla. 1990). Moreover, to the extent that the claim contained in Happ's brief was in fact the same claim as the issue raised on direct appeal, this Court decided the claim 14

16 adversely to Happ. Specifically, this Court held: In his sixth claim, Happ asserts that the jailhouse informant's testimony regarding his unavailability to testify at trial should not have been presented to the jury. The issue relates to the appropriateness of the preamble explaining why the witness was unavailable, not the unavailability of the witness. Counsel for both the State and Happ had an opportunity to examine the witness prior to the second trial. This examination revealed that the witness was mentally and physically unable to testify, having been stabbed and gang-raped and suffering a nervous breakdown while in prison. The witness was at the time scheduled to start physical therapy and psychological counseling. The trial court found that the witness was unavailable to testify and ruled that his testimony at the first trial could be read to the jury, including Miller's explanation of why he could not be present to testify. Given this record, we find that the trial court did not abuse its discretion in allowing this evidence to be presented in this manner under these circumstances. Jent v. State, 408 So.2d 1024 (Fla. 1981). Happ v. State, 596 So.2d at 996. The "prior testimony" claim is not a basis for relief. To the extent that the claim contained in Happ's brief is a "failure to prepare" ineffective assistance of counsel claim, the collateral proceeding trial court found that the petition was insufficiently pleaded, and denied relief on that basis. (R934). As the trial court found, the petition failed to specifically allege either deficient performance or prejudice -- both are required components of a claim of ineffective assistance of counsel, and must be alleged with at least some specificity. That failure to specifically plead the purported basis for this claim is a legally sufficient basis for dismissal. See, Cherry, supra. To the extent that Happ's brief refers to Claim XVIII of the motion (Initial 15

17 Brief at 24), the collateral proceeding trial court denied that claim as insufficiently pleaded. (R939). To the extent that Claim XVIII incorporated other claims, the collateral proceeding trial court had previously denied relief on those claims. (R939). To the extent that Happ's brief refers to Claim XI of the motion (Initial Brief at 25), the collateral proceeding trial court properly denied relief on that claim on the alternative grounds of procedural bar and lack of merit. (R937). To the extent that Happ refers to Claim XV of the motion (Initial Brief at 25), the collateral proceeding trial court correctly denied relief on that claim based upon insufficient pleading. (R938). Summary denial was proper. Roberts, supra. On pages of his brief, Happ complains about the denial of his motion for rehearing, and alleges facts in a footnote that are presented here for the first time. (Initial Brief at 26 n. 6). This "issue" focuses on the motion for rehearing as to Claim V of the Rule motion. The collateral proceeding trial court originally denied relief on that claim, finding that: This claim is a claim of actual innocence which is completely devoid of factual allegation and is therefore improperly pled. This claim is also procedurally barred since it could have been raised in motions for a new trial or on appeal. The claim is therefore denied. (R935). Despite the hyperbole of Happ's brief, he has alleged nothing that would entitle him to an evidentiary hearing. He is not entitled to relief, and the collateral proceeding trial court 16

18 should be affirmed in all respects. II. THE "PRIOR VIOLENT FELONY" AGGRAVATOR JURY INSTRUCTION CLAIM On page 30 of his brief, Happ alleges that the jury instruction on the prior violent felony aggravating circumstance violated Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). This claim is based upon the omission of the words "of violence" from the instruction. The collateral proceeding trial court denied relief, stating: This claim alleges error in the instruction concerning previous conviction of a violent felony. In this claim the record is clear that not only the defendant's counsel, but the defendant himself, waived the omission in the instruction after it was brought to their attention by the State. See Trial Transcript at p Additionally, the instruction clearly informs the jury that robbery and kidnaping are crimes involving the use of threat or force. See penalty phase instructions in Record on Appeal at p This claim is clearly procedurally barred and, as well, there is no prejudice. The claim is denied. (R935). The collateral proceeding trial court's findings are correct, are supported by competent substantial evidence, and are in accord with settled Florida procedural bar law. That court's denial of relief should be affirmed in all respects. III. THE HEINOUS, ATROCIOUS, OR CRUEL AGGRAVATING CIRCUMSTANCE JURY INSTRUCTION On page 31 of his brief, Happ argues that he is entitled to a new sentencing proceeding based upon his claim that the jury instruction given on the heinous, atrocious, or cruel aggravator violated Espinosa v. Florida, supra. The collateral proceeding 17

19 trial court denied relief on this claim (Claim VIII), finding: This claim attempts to re-litigate the heinous, atrocious and cruel aggravator instruction. This claim was previously litigated at the United States Supreme Court. The instruction as given was found to be vague and the case was remanded for further consideration. Happ v. Florida, -- U.S. --, 113 S.Ct. 399, 121 L.Ed.2d 325 (1992). On remand, the Florida Supreme Court found the vagueness error to be harmless. Happ v. State, 618 So.2d 205 (Fla. 1993). Therefore this claim is procedurally barred. Torres-Arboleda v. Dugger, 636 So.2d 1321 (Fla. 1994). The claim is denied. (R936). Moreover, this Court found the vagueness claim procedurally barred because it was not raised at trial. Happ v. State, 618 So.2d at 206. The court's denial of relief is in accord with settled Florida law, and should be affirmed in all respects. IV. THE "DURING THE COURSE OF A FELONY" AGGRAVATING CIRCUMSTANCE JURY INSTRUCTION On page 32 of his brief, Happ argues that the jury instruction on the "during the course" of an enumerated felony aggravator is "overbroad and vague". This claim could have been but was not raised on direct appeal, and, for that reason, is procedurally barred, as the collateral proceeding trial court found. In denying relief on this claim, that court held: This claim attempts to challenge the "committed while engaged in the commission of burglary, sexual battery, or kidnaping" jury instruction. It is a claim that clearly should have been raised on direct appeal and is therefore procedurally barred. Roberts, supra; Cherry, supra. The claim is denied. The claim is also without merit. Instructions on the elements of the underlying felony offenses were given as part of the guilt instructions. Trial Transcript at pgs ; Sochor v. State, 619 So.2d 285 (Fla. 1993) at 18

20 note 10. (R936). Those findings are correct, are supported by competent substantial evidence, and should be affirmed in all respects. V. THE BURDEN-SHIFTING JURY INSTRUCTION CLAIM On pages of his brief, Happ argues that the jury instruction on the weighing of aggravating and mitigating circumstances improperly "shifted" the burden to him to prove that the mitigating circumstances outweighed the aggravators. This claim is procedurally barred and, alternatively, meritless, as the trial court found. In denying relief on this claim, the collateral proceeding trial court held: This claim attempts to raise the "improper burden shifting" argument as to the penalty phase jury instructions. This claim could have been raised in direct appeal and therefore is procedurally barred. See, Cherry, supra; Kight, supra; Roberts, supra. The claim is denied. The claim also is without merit. Gamble v. State, 659 So.2d 242 (Fla. 1992); Walls v. State, 641 So.2d 381 (Fla. 1992). To the extent that an attempt is made to relitigate the claim as ineffective assistance of counsel, the claim is likewise barred. See Cherry, supra. (R937). Those findings are in accord with settled Florida law, are supported by competent substantial evidence, and should be affirmed in all respects. VI. THE UNCONSTITUTIONAL CAPITAL SENTENCING STATUTE CLAIM 19

21 On pages of his brief, Happ argues that the "capital sentencing scheme" results in a denial of the defendant's right to due process, and "constitutes cruel and unusual punishment on its face and as applied". 4 As the collateral proceeding trial court found, this claim is procedurally barred and, alternatively, meritless. In denying relief on this claim, the trial court held: The claim that electrocution violates the Eighth Amendment to the United States Constitution has been rejected by the Florida Supreme Court. Jones v. Butterworth, 701 So.2d 76 (Fla. 1997); Buenoano v. Dugger, 565 So.2d 309 (Fla. 1990). This electrocution issue, as well as the other issues raised in this claim including the definition of the aggravating circumstances, the so-called presumption of death and the weighing process are all issues that could have been dealt with at trial and on direct appeal and are hence procedurally barred from consideration in this postconviction relief proceeding. Kight, supra. Accordingly, this claim is denied. Moreover, Florida's death penalty system has consistently been upheld by appellate courts. Brown v. State, 565 So.2d 304 (Fla. 1990); Arango v. State, 411 So.2d 172 (Fla. 1982); Spaziano v. Florida, U.S., 104 S.Ct. 3154, L.Ed.2d (1984); Proffitt v. Florida, U.S., 96 S.Ct. 2960, L.Ed.2d (1976). This claim therefore would alternatively be denied on the merits. (R938-9). Those findings are in accord with settled Florida law, are supported by competent substantial evidence, and should be affirmed in all respects. VII. THE PROHIBITION ON POST-TRIAL JUROR INTERVIEWS CLAIM 4 This claim was raised in the Rule motion as claim XVI. (R182 et seq). 20

22 On page 38 of his brief, Happ argues that his "right to free association and free speech" is violated by the Florida Rule of Professional Responsibility 4-3.5(d)(4) prohibition on post-trial interviews of jurors. 5 As the collateral proceeding trial court found, this claim has no factual basis in the context of this case. In denying relief on this claim, the trial court stated: This claim attempts to raise as a constitutional issue Florida Rule of Professional Responsibility 4-3.5(d)(4) which generally prohibits the questioning of jurors without cause. When read as a whole, the rule is not unconstitutional. Further, the claim fails to allege prejudice. The only area of inquiry mentioned is the failure of the jury to be sworn for the jury selection process. That claim is refuted by the Clerk of Court's docket sheet which the Court has taken judicial notice of as a part of the court files. See top of page 2 of Clerk's Minute Book for July 24, 1989; See also, Trial Transcript at pg This claim is denied as improperly pled and, in the alternative, as being without merit. (R939-40). Because this claim has no factual basis, relief was properly denied. The findings of the lower court are correct, are supported by competent substantial evidence, and should be affirmed in all respects. Moreover, to the extent that further discussion of this claim is necessary, this claim is procedurally barred because it could have been but was not raised on direct appeal. Such failure to timely raise this claim is a procedural bar under settled Florida law. See, e.g., Cherry, supra; Kight, supra; Roberts, supra; 5 This claim was contained in the Rule motion as Claim XIX. (R80). 21

23 Medina, supra. VIII. THE PERJURED TESTIMONY CLAIM On pages of his brief, Happ argues that his sentence is unreliable because of the "perjured testimony of the State informant Richard Miller". The claim contained in Happ's brief is a verbatim recitation of a part of Claim 23 in the Rule motion, and contains no references to any support for the claims included therein. The trial court denied relief on this claim: (R940). This claim [Claim 23] is a re-hashing of Claims III and XIV as a Giglio claim. The issue is improperly pled and has been factually determined in the evidentiary hearing regarding Claim III. The claim is denied. In denying relief on Claim III, the collateral proceeding trial court made the following findings of fact: In support of the claim as a Giglio issue, the Defendant produced Virgil Fox to testify that Miller told him, while in the Kansas State Prison, that the testimony he gave in the Happ trial was false. The testimony of Ms. McGowan of the Kansas prison facility makes clear that Fox lied concerning his relationship and association with Miller. Given the clear falsity of Fox's testimony, it is unworthy of belief. Also contrary to Fox's hearsay testimony of Miller's statement are the several statements of Miller both to the State and to the Law Office of the Capital Collateral Representative that his testimony was true. (R933) [emphasis added]. There is no factual basis for the claim contained in Happ's brief, and the findings of fact and determinations of credibility made by the trial court should not be disturbed. 22

24 IX. THE PROSECUTORIAL ARGUMENT CLAIM On pages of his brief, Happ argues that he is entitled to relief based upon "numerous inflammatory comments" made by the prosecutor during closing argument and "during cross-examination of witnesses". 6 This claim was partially raised as claim XI in the Rule motion. (R168 et seq). 7 This claim is not only procedurally barred, but also meritless. follows: In denying relief on this claim, the trial court ruled as This claim [Claim XI] attempts to raise as an issue questions or arguments propounded by the State which were not objected to or raised on direct appeal. These issues are clearly procedurally barred. Cherry, supra; Medina v. State, 573 So.2d 293 (Fla. 1990). The claim therefore is denied. In addition, when the arguments of counsel are fairly read in context, the claim is without merit. See Trial Transcript at pgs , and Additionally, the questions posed to Mr. Manos, a school teacher at the jail, were not error. See Trial Transcript at pgs This claim is procedurally barred and, in addition, without merit. (R937). The trial court's denial of relief on alternative procedural bar and lack of merit grounds should be affirmed in all respects. 6 Only one witness is identified in Happ's brief. 7 On page 41 of his brief, Happ complains about the crossexamination of witness Hensley. No claim concerning that witness is contained in Happ's Rule motion. Under settled Florida law, this claim cannot be raised for the first time on appeal from the denial of Rule relief. 23

25 CONCLUSION Based upon the foregoing arguments and authorities, the State respectfully requests that this Court affirm the trial court s denial of relief in all respects. Respectfully submitted, ROBERT A. BUTTERWORTH ATTORNEY GENERAL KENNETH S. NUNNELLEY ASSISTANT ATTORNEY GENERAL Fla. Bar Seabreeze Blvd. Fifth Floor Daytona Beach, FL (904) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above has been furnished by U.S. Mail to Michael P. Reiter, Chief Assistant CCRC, Middle Region, 3801 Corporex Park Drive, Suite 210, Tampa, Florida 33619, this day of May, Of Counsel 24