IN THE SUPREME COURT OF FLORIDA NO. SC DUSTY RAY SPENCER, Petitioner, MICHAEL W. MOORE, Secretary, Florida Department of Corrections,

Transcription

1 IN THE SUPREME COURT OF FLORIDA NO. SC DUSTY RAY SPENCER, v. Petitioner, MICHAEL W. MOORE, Secretary, Florida Department of Corrections, Respondent. PETITION FOR WRIT OF HABEAS CORPUS HARRY P. BRODY FLORIDA BAR NO ASSISTANT CCRC JEFFREY M. HAZEN FLORIDA BAR NO CCRC-M ATTORNEY OFFICE OF THE CAPITAL COLLATERAL REGIONAL COUNSEL - MIDDLE 3801 Corporex Park Drive Suite 210 Tampa, FL (813) COUNSEL FOR PETITIONER

2 PRELIMINARY STATEMENT This is Mr. Spencer's first habeas corpus petition in this Court. Art. l, 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 Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, claims demonstrating that Mr. Spencer was deprived of the right to fair, reliable, and individualized trial and sentencing proceedings and that the proceedings resulting in his conviction and death sentence violated fundamental constitutional imperatives. Citations shall be as follows: The record on appeal concerning the original court proceedings shall be referred to as "R. " followed by the appropriate page number. The transcript of the guilt-phase proceedings will be referred to as T. followed by the appropriate page number. The record on appeal from the 1995 re-sentencing proceedings shall be referred to as R2.. The post-conviction i

3 record on appeal will be referred to as "PC-R. " The Florida Supreme Court's opinion on Mr. Spencer's initial direct appeal will be referred to as Spencer I, 645 So.2d 377 (Fla. 1994). The Florida Supreme Court s opinion on Mr. Spencer s direct appeal from his 1995 re-sentencing proceedings will be referred to as Spencer II, 691 So.2d 1062 (Fla. 1996). All other references will be self-explanatory or otherwise explained herein. ii

4 TABLE OF CONTENTS Page PRELIMINARY STATEMENT... TABLE OF CONTENTS... i iii TABLE OF AUTHORITIES...iv INTRODUCTION... 1 PROCEDURAL HISTORY... 2 JURISDICTION TO ENTERTAIN PETITION AND GRANT HABEAS CORPUS RELIEF... 5 GROUNDS FOR HABEAS CORPUS RELIEF... 6 CLAIM I CLAIM II FLORIDA S DEATH PENALTY STATUTE IS UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED AND MR. SPENCER S CONVICTION AND SENTENCE VIOLATE THE DUE PROCESS, EFFECTIVE ASSISTANCE OF COUNSEL, EQUAL PROTECTION, AND RIGHT TO JURY TRIAL PROVISIONS OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE CORRESPONDING PROVISIONS OF THE FLORIDA CONSTITUTION THE PERFORMANCE OF APPELLATE COUNSEL IN FAILING TO RAISE FUNDAMENTAL ERROR WAS DEFICIENT PERFORMANCE WHICH PREJUDICED MR. SPENCER IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL PROSECUTORIAL MISCONDUCT ELICITING FALSE TESTIMONY Failure To Raise Issue Of Redaction...34 CONCLUSION AND RELIEF SOUGHT...37 CERTIFICATE OF SERVICE...38 iii

5 iv

6 TABLE OF AUTHORITIES Page Apprendi v. New Jersey, 120 S. Ct (2000)... 7 Baggett v. Wainwright, 229 So.2d 239, 243 (Fla. 1969)... 5 Barclay v. Wainwriqht, 444 So.2d 956, 959 (Fla. 1984)... 1 Brown v. Wainwright, 392 So.2d 1327 (Fla. 1981)... 5 Craig v. State, 685 So.2d 1224 (Fla. 1996)...31 Dallas v. Wainwriqht, 175 So.2d 785 (Fla. 1965)... 6 Darden v. Wainwright, 477 U.S. 168, 178, 106 S.Ct. 2464, 2470 (1986)...29 Davis v. State, 604 so. 2d 799 (Fla. 1992)...18 Downs v. Dugger, 514 So.2d 1069 (Fla. 1987)... 5 Fitzpatrick v. Wainwright, 490 So.2d 938, 940 (Fla. 1986)... 1 Garcia v. State, 622 So. 2d 1324 (Fla. 1993)...22 Gardner v. Florida, 430 U.S. 349, 357 (1976)...12 Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)...30, 31 Griffin v. California, v

7 380 U.S. 609, 85 S.Ct. 1229, L.Ed. 2d 106 (1965)...30 Huff v. State, 622 So.2d 982 (Fla. 1992)... 4 Jackson v. State, 704 So. 2d 500 (Fla 1997)...18 Jones v. State, 92 So. 2d 261 (Fla. 1956)...17 Jones v. United States, 526 U.S. 227, 243, n.6 (1999)...12, 17 Kearse v. State, 662 So. 2d 677 (Fla. 1995)...19 Larzelere v. State, 676 So. 2d 394 (Fla. 1996)...36 Long v. State, 610 So. 2d 1276 (Fla. 1992)...36 Lucas v. State, 490 So. 2d 943 (Fla. 1986)...18 Maggard v. State, 399 So. 2d 677 (Fla. 1981)...19 McMillan v. Pennsylvania, 477 U.S. 79 (1986)...11, 15 McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943)...30 Mikenas v. State, 407 So. 2d 892 (Fla. 1981)...18 Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed. 2d 690 (1967)...30 vi

8 Nowitzke v. State, 572 So.2d 1346 (Fla. 1990)...22 Palmes v. Wainwright, 460 So.2d 362 (Fla. 1984)... 6 Profitt v. Florida, 428 U.S. 242 (1976)...18 Rilev v. Wainwright, 517 So.2d 656 (Fla. 1987)... 5 Routly v. State, 590 So.2d 397 (Fla. 1991)...31 Ruiz v. State, 743 So.2d 1 (Fla. 1999)...22 Smith v. State, 400 So.2d 956, 960 (Fla. 1981)... 5 Spencer v. State, 118 S. Ct. 213 (1997)... 4 State v. Dixon, 283 So. 2d 1, 9 (Fla. 1973)...10 Strickland v. Washington, 466 U.S. 668 (1984)...18 Tracton v. City of Miami Beach, 616 So. 2d 1061 (3 rd DCA 1992)...37 United States v. Agurs, 427 U.S. 97, 103 (1976)...31 United States v. Hasting, 461 U.S. 499, 103 S.Ct (1983)...30 Walton v. Arizona, 497 U.S. 639 (1990)...15 Way v. Duqqer, 568 So.2d 1263 (Fla. 1990)... 5 vii

9 Wilson v. Wainwriqht, 474 So.2d 1162, 1164 (Fla. 1985)... 1 Woodson v. North Carolina, 428 U.S. 280,...12 viii

10 INTRODUCTION Significant errors which occurred at Mr. Spencer's capital trial and sentencing were not presented to this Court on direct appeal due to the ineffective assistance of appellate counsel. The issues, which appellate counsel neglected, demonstrate that counsel's performance was deficient and that the deficiencies prejudiced Mr. Spencer. "[E]xtant legal principles...provided a clear basis for... compelling appellate argument[s]." Fitzpatrick v. Wainwright, 490 So.2d 938, 940 (Fla. 1986). 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. Wainwriqht, 474 So.2d 1162, 1164 (Fla. 1985). Individually and "cumulatively," Barclay v. Wainwriqht, 444 So.2d 956, 959 (Fla. 1984), 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). Additionally, this petition presents questions that were ruled on in direct appeal, but should now be revisited in light of subsequent case law or in order to correct error in 1

11 the appeal process that denied fundamental constitutional rights. As this petition will demonstrate, Mr. Spencer is entitled to habeas relief. PROCEDURAL HISTORY On February 6, 1992, an Orange County grand jury indicted Mr. Spencer for first-degree murder, aggravated assault, attempted first degree murder, and aggravated battery (R. 491). On October 14, 1992, another Orange County grand jury handed down an amended indictment for first-degree murder, aggravated assault, attempted first-degree murder, and aggravated battery (R. 602). These indictments were alleged to have arisen out of two separate incidents between Mr. Spencer and his wife, one occurring on January 4, 1992 and the other occurring on January 18, 1992 (R ). Mr. Spencer pled not guilty. Mr. Spencer was tried by a jury and found guilty on November 7, 1992 (R. 1081). On December 8, 1992, the jury recommended a sentence of death for the first-degree murder conviction by a vote of 7-5 (R. 1148). The trial court followed the jury recommendation and sentenced Mr. Spencer to death on December 21, 1992 (R. 1230). 2

12 On appeal, Mr. Spencer raised seven issues: denial of his motion for judgment of acquittal based upon a lack of sufficient evidence to prove premeditation; denial of his motion to sever the charges relating to the January 4 incident and those relating to the January 18 incident; denial of his objections to the standard jury instructions on premeditation and reasonable doubt; denial of his motion for a mistrial following the prosecutor s argument regarding matters not in evidence; admission of hearsay evidence during the penalty phase; death sentence improper because the trial court improperly found CCP and HAC aggravating circumstances, excluded statutory mental-health mitigating circumstances, and failed to find the mitigators outweighed aggravators; and the death penalty statute is unconstitutional. On September 22, 1994, the Florida Supreme Court affirmed the conviction, but vacated Mr. Spencer s death sentence because the trial court erroneously instructed the jury on and considered the aggravating circumstance of cold, calculated, and premeditated and erroneously failed to consider the two statutory mitigating circumstances dealing with mental health. Spencer I. On remand for reconsideration in lieu of these errors, the trial court, without impaneling a jury, sentenced Mr. Spencer to death on January 18, 1995 (R2. 149). 3

13 On appeal from the re-sentencing, Mr. Spencer argued that the death sentence was improperly imposed because the sentencing order was insufficient in its factual basis and rationale, the judge considered inappropriate aggravating circumstances, mitigation outweighed aggravation, and the death sentence was not proportional. Subsequently, the Florida Supreme Court affirmed Mr. Spencer s second sentence on appeal. Spencer II. On October 6, 1997, the United States Supreme Court denied Mr. Spencer s petition for writ of certiorari to the Florida Supreme Court. Spencer v. State, 118 S. Ct. 213 (1997). Mr. Spencer filed an amended motion for relief from judgment and sentence on September 24, A hearing was held December 21, 1999, in accordance with Huff v. State, 622 So.2d 982 (Fla. 1992). Subsequent to the Huff hearing, the trial court ordered an evidentiary hearing on various subclaims of Claims II prosecutorial misconduct--, III ineffective assistance of counsel at guilt phase--, IV ineffective assistance of counsel at penalty phase-- and V Brady violations-- on December 22, An evidentiary hearing was held on March 2-3, On April 24, 2000, following the evidentiary hearing, the trial 4

14 court denied Mr. Spencer s motion as to the claims on which an evidentiary hearing had been held. Additionally, the court summarily denied Mr. Spencer s remaining claims. Mr. Spencer filed a notice of appeal from the trial court s denial of his motion on May 8, Mr. Spencer s Initial Brief is filed contemporaneous with this petition. JURISDICTION TO ENTERTAIN PETITION AND GRANT HABEAS CORPUS RELIEF This is an original action under Fla.R.App.P. 9.l00(a). See Art. l, Sec. 13, Fla. Const. This Court has original jurisdiction pursuant to the Florida Rules of Appellate Procedure, Rule 9.030(a)(3), and Art. 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. Spencer'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. Spencer's direct appeal. See Wilson, 474 So.2d at 1163 (Fla. 1985); Baggett v. Wainwright, 229 So.2d 239, 243 5

15 (Fla. 1969); cf. Brown v. Wainwright, 392 So.2d 1327 (Fla. 1981). A petition for a writ of habeas corpus is the proper means for Mr. Spencer to raise the claims presented herein. See, e.g., Way v. Duqqer, 568 So.2d 1263 (Fla. 1990); Downs v. Dugger, 514 So.2d 1069 (Fla. 1987); Rilev 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. Wainwriqht, 175 So.2d 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. Spencer's claims. GROUNDS FOR HABEAS CORPUS RELIEF By his petition for a writ of habeas corpus, Mr. Spencer 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 Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the 6

16 United States Constitution and the corresponding provisions of the Florida Constitution. CLAIM I FLORIDA S DEATH PENALTY STATUTE IS UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED AND MR. SPENCER S CONVICTION AND SENTENCE VIOLATE THE DUE PROCESS, EFFECTIVE ASSISTANCE OF COUNSEL, EQUAL PROTECTION, AND RIGHT TO JURY TRIAL PROVISIONS OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE CORRESPONDING PROVISIONS OF THE FLORIDA CONSTITUTION. In Apprendi v. New Jersey, 120 S. Ct (2000), the Supreme Court held, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Id. at Apprendi requires that, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury. Id. Thus, under Apprendi, facts which increase the penalty beyond the statutory maximum are treated as elements of the crime. As will be established herein, under the Florida deathpenalty scheme, the statutory aggravators constitute elements 1 See also Jones v. United States, 526 U.S. 227, (1999) ( it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt. ). 7

17 of the offense for which death is the penalty, much as, in Florida, the aggravating factors of an aggravated battery must be found by a jury for a conviction for aggravated battery to stand. Thus, the Florida death-penalty statutory scheme, which authorizes the judge to make the ultimate findings of aggravation and to impose the sentence of life or death and under which the jury does not explicitly render a verdict beyond a reasonable doubt on its findings of aggravation, under the holding and rationale of Apprendi, which is new law cognizable before this court in the instant petition, renders the statutory scheme unconstitutional on its face and as applied in this case. Further, the indictment, pursuant to which Mr. Spencer has been convicted and sentenced, was constitutionally defective in that it did not put him on notice of the specific aggravators the state would seek to establish. Alternatively, to the extent that these constitutional problems were in cognizable at the time of Mr. Spencer s trial, appellate counsel rendered ineffective assistance of counsel in failing to appeal the denial of trial counsel s motions seeking to address these concerns and in failing to raise such issues as fundamental error on appeal. Finally, because this Court, considering the death sentence imposed by the trial court after the jury s 7-5 recommendation 8

18 of death, struck the CCP aggravator and remanded Mr. Spencer s case back to the trial court for reconsideration, apparently granting the trial court unfettered discretion to impanel or not to impanel a new jury, and because the trial court did not impanel a new jury before finding aggravators with no jury guidance, Mr. Spencer was denied equal protection and due process and received ineffective assistance of appellate counsel for failing to raise these fundamental constitutional deprivations on appeal. In Apprendi, the issue was whether a New Jersey hate crime sentencing enhancement, which increased the punishment beyond the statutory maximum, operated as an element of an offense so as to require a jury determination beyond a reasonable doubt. Apprendi 120 S.Ct. at [T]he relevant inquiry here is not one of form, but of effect does the required finding expose the defendant to a greater punishment than that authorized by the jury s guilty verdict? Apprendi 120 S.Ct. at Applying this test, it is clear that aggravators under the Florida death penalty sentencing scheme are elements of the offense which must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. 9

19 An examination of the particulars of the Florida capital sentencing process shows that a death sentence is beyond the prescribed statutory maximum and therefore must be submitted to a jury. Under Sec (1)(a), Fla. Stat. (1999), a first-degree murder conviction is punishable as provided in Sec , Fla. Stat. This section provides: A person who has been convicted of a capital felony shall be punished by death if the proceeding held to determine sentence according to the procedure set forth in s results in findings by the court that such person shall be punished by death, otherwise such person shall be punished by life imprisonment and shall be ineligible for parole. Sec , Fla. Stat. (1999). A Florida capital defendant is not eligible for the death sentence simply upon conviction of first-degree murder. If the court were to sentence the defendant immediately after the conviction, the court could only impose life. Sec , Fla. Stat. This is so because the Florida capital sentencing statute requires the state to prove at least one aggravating factor beyond a reasonable doubt before the defendant is eligible for a death sentence. State v. Dixon, 283 So. 2d 1, 9 (Fla. 1973); Sec (2)(a), (3)(a), Fla. Stat. (1999). Thus, under Florida law, the death sentence is not within the 10

20 statutory maximum sentence discussed in Apprendi, but is only available after additional elements are proved. In holding that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt, Apprendi limited several previous decisions of the Supreme Court. Specifically, the Court limited its holding in McMillan v. Pennsylvania to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jury s verdict. Apprendi, 120 S.Ct at 2361; McMillan v. Pennsylvania, 477 U.S. 79 (1986). In Apprendi, the Supreme Court held that the Fourteenth Amendment guarantees the Sixth Amendment protection that any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.. Apprendi 120 S.Ct. at Because aggravators increase the statutory maximum penalty as considered for any individual case, death-penalty defendants are entitled to the Sixth Amendment protections annunciated in Apprendi. Under the facts of Apprendi, the hate-crime sentencing enhancement came into play only after the defendant was found 11

21 guilty and increased the statutory maximum penalty by up to ten years. Apprendi 120 S.Ct. At Apprendi dispenses with the fiction that such an enhancement was not an element which entitled the defendant to receive Sixth Amendment protections. As the Supreme Court reasoned, it can hardly be said that the potential doubling of one s sentence from 10 years to 20 has no more that a nominal effect. Both in terms of absolute years behind bars, and because of the severe stigma attached, the differential here is unquestionably of constitutional significance. Apprendi, 120 S.Ct. at As in Apprendi, in Mr. Spencer s case the sentencing factors -the aggravators- came into play only after he was found guilty. Thus, the aggravators increased the statutorily maximum penalty from life imprisonment to death. Surely, the life-to-death enhancement dwarfs the sentence-doubling at issue in Apprendi and is of Constitutional significance of the highest magnitude. As Eighth Amendment jurisprudence has repeatedly emphasized, [T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Woodson v. North Carolina, 428 U.S. 280, 305 (1975). See Gardner v. Florida, 430 U.S. 349, 357 (1976). 12

22 Although Apprendi analyzed two separate statutes and the Florida death penalty statute involves only one, such a distinction places substance over form. Apprendi 120 S.Ct. at 2350, 2365; Fla. Stat. (1999). The sentencing structure of the Florida death-penalty statute is similar to that of the federal car-jacking statute the United States Supreme Court considered in Jones v. U.S., 526 U.S. at 243, n.6 (1999). Three subsections of the federal statute appear, superficially, to annunciate sentencing factors. However, when the Court examines the effect of the statute the Court determines that:...the superficial impression loses clarity when one looks at the penalty subsections (2) and (3). These not only provide for steeply higher penalties, but they condition them on further acts (injury, death) that seem quite as important as the elements in the principle paragraph (e.g. force and violence, intimidation). It is at best questionable whether the specification of facts sufficient to increase a penalty range from 15 years to life, was meant to carry none of the process safeguards that elements of the offense bring with them for a defendant s benefit. Jones, 526 U.S. at 233. Because the car-jacking sentencing factors increased the maximum penalty for the crime from 15 years to 25 years or life imprisonment, the Court interpreted them as elements of the crime entitling the defendant to Sixth 13

23 Amendment protections regarding the determination of the existence of those factors. Jones, 526 U.S. at 230, Certainly, the Spencer jury s finding of the CCP, HAC, and prior-violent-felony aggravators exposed Mr. Spencer to a greater punishment than that authorized by the jury s guilty verdict. Even more constitutionally offensive are the judge s finding, on remand, of the last two of those aggravators without guidance of any kind from a jury. In Mr. Spencer s case, five jurors recommended a life sentence and, thus, either found that the aggravators had not been proven beyond a reasonable doubt or that mitigation outweighed any aggravators found. On direct appeal, the CCP aggravator was struck by the Florida Supreme Court. Spencer I at 384. On remand for reconsideration, the judge, alone, again sentenced Mr. Spencer to die. No jury ever heard or passed on the ultimate sentence of death rendered by the judge. Further, no indictment listed the aggravators the state would prove and no verdict form ever listed the aggravators that might have been found unanimously and beyond a reasonable doubt. Under such a statutory scheme and its application in the process of this case, it is impossible to ever determine whether the jurors unanimously found any aggravator was proven beyond a reasonable doubt. 14

24 Further, the 7-5 recommendation may have weighed CCP as the only aggravator, and there was, as the Florida Supreme Court ultimately determined, insufficient evidence to justify its application to this case. Similarly, the five jurors who voted for life could have found that no aggravators were established beyond a reasonable doubt. Thus, Mr. Spencer has been sentenced to die based on a record that cannot establish that the state proved the existence of any statutory aggravators beyond a reasonable doubt. His sentence of death is necessarily arbitrary and capricious. Under the reasoning of Apprendi, aggravating factors in the Florida scheme are elements of the charge and each should be found beyond a reasonable doubt by a unanimous jury. The important consideration is the effect of the fact rather than whether the legislature placed the factor in the definition of the crime or within sentencing provisions. Apprendi, 120 S. Ct. at [T]he relevant inquiry is one not of form, but of effect--does the required finding expose the defendant to a greater punishment than that authorized by the jury s guilty verdict? Id. at Thus, even if a death sentence appears to be within the statutory maximum allowed under Florida law, under Apprendi s reasoning, the legislature s placement of aggravating factors in a sentencing provision 15

25 exceeds the state s authority to define away facts necessary to constitute a criminal offense. Id. at Apprendi s discussion of prior cases and common law indicates that this decision can be made only upon consideration of the particulars of the state law involved and the effect of the factor at issue. See, e.g., 120 S. Ct. at & n.13 (distinguishing McMillan v. Pennsylvania, 477 U.S. 79 (1986)); Id. at 2366 (distinguishing Almendarez-Torres v. United States, 523 U.S. 224 (1998)). Mr. Spencer contends that Apprendi has overruled Walton v. Arizona, 497 U.S. 639 (1990). See, Apprendi V. New Jersey, 120 S. Ct. at 2380 (Thomas, J., concurring) (question whether Walton has been overruled is left open); Id. at (O Connor, J., dissenting) (majority decision inconsistent with Walton). Although the majority of the Court stated in dicta that Apprendi was inapposite to Walton, the Apprendi Court was not considering a death case in which constitutional protections are most rigorously applied. Further, Apprendi does not specifically consider the issue presented by the Florida sentencing scheme. Apprendi, 120 S.Ct. at Moreover, the majority dicta did not carry the force of an opinion of the full court. See Apprendi 120 S. Ct. at 2380 (Thomas, J., concurring) ( Whether this distinction between 16

26 capital crimes and all others, or some other distinction, is sufficient to put the former outside the rule that I have stated is a question for another day. ); Apprendi, 120 S. Ct. at (O Connor, J., dissenting) ( If the Court does not intend to overrule Walton, one would be hard pressed to tell from the opinion it issues today. ) Apprendi, 120 S. Ct. at However, even if Walton has not been overruled, Walton itself is not determinative as to the particulars of Florida s capital sentencing scheme or the issues raise herein. Apprendi, 120 S. Ct. at Applying the principles of Apprendi to the Florida sentencing statute, Mr. Spencer s common law and constitutional rights to jury unanimity on all elements of the crime that sustain his conviction and sentence were violated. Deprivation of this right violates due process. Flanning, supra; Hicks v. Oklahoma, 447 U.S. 343 (1980). Clearly, under Fla. R. Crim. P , a jury verdict on a criminal charge must be unanimous. Since jury unanimity has long been the practice in Florida, It is therefore settled that [i]n this state, the verdict of the jury must be unanimous and that any interference with this right denies the defendant a fair trial. Flanning v. State, 597 So. 2d 864, 867 (Fla. 3d DCA 1992), quoting Jones v. State, 92 So. 2d 261 (Fla. 1956). 17

27 Another aspect of Apprendi that inures favorably to Mr. Spencer is the Court s emphasis on the Constitutional importance of the indictment. Apprendi at The indictment pursuant to which Mr. Spencer was charged and convicted was constitutionally deficient. In Jones v. United States, supra, the United States Supreme Court, construing a federal statute, held, under the Due Process Clause of the Fifth Amendment and the notice and jury guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Jones at 243, n.6. Subsequently, in Apprendi, the Court held that the Fourteenth Amendment affords citizens the same protections under state law. Apprendi at Apprendi explicitly explains: Apprendi at Just as the circumstances of the crime and the intent of the defendant at the time of commission were often essential elements to be alleged in the indictment, so to were circumstances mandating a particular punishment. In this case, Mr. Spencer was not put on notice in the indictment pursuant to which he was prosecuted what aggravators the state would seek to establish beyond a reasonable doubt. 18

28 In Profitt v. Florida, 428 U.S. 242 (1976), the Supreme Court approved Florida s death-penalty statute but reiterated the prohibition against the arbitrary and capricious imposition of the death penalty. The constitutional underpinnings of Profitt and the entire spectrum of post- Furman juriprudence permitting imposition of the deathpenalty under state statutes are offended when, as in this case, the jury is instructed on, and possibly finds, in reaching its 7-5 recommendation of death, a statutory aggravator which is subsequently stricken on direct appeal. Subsequently, on remand for reconsideration, the court did not empanel a jury, and, on appeal from re-sentencing by the judge, counsel fails to raise this fundamental error in the proceedings. This failure must constitute ineffective assistance of appellate counsel under Strickland v. Washington, 466 U.S. 668 (1984). When the Florida Supreme Court has envisioned that proceedings on remand will consist only of a re-weighing of appropriate aggravating and mitigating circumstances by the trial court, the Court has used specific language mandating the reweighing. Mikenas v. State, 407 So. 2d 892 (Fla. 1981), Davis v. State, 604 so. 2d 799 (Fla. 1992), Jackson v. State, 704 So. 2d 500 (Fla 1997). When the Court has been 19

29 unclear as to whether a new jury is to be impaneled on remand, wide discretion has been given to the trial court. Lucas v. State, 490 So. 2d 943 (Fla. 1986). However, in cases where the trial court has instructed the jury on improper aggravators, the Florida Supreme Court has consistently ordered re-sentencing proceedings before a newly impaneled jury. See, eg, Maggard v. State, 399 So. 2d 677 (Fla. 1981); Kearse v. State, 662 So. 2d 677 (Fla. 1995). While the Florida Supreme Court s order of remand in Mr. Spencer s case is ambiguous, the trial court should have been guided by the precedent of Maggard and Kearse and should have impanelled a jury to consider the applicable aggravating and mitigating circumstances. Had a new jury in Mr. Spencer s case heard evidence and been instructed on the proper aggravating and mitigating factors, it would have weighed any appropriate aggravators found unanimously beyond a reasonable doubt against three statutory mitigators, and a wealth of non-statutory mitigation. Further, the Florida Supreme Court s mandate remanding Mr. Spencer s case prohibit the trial court from impaneling a new jury. Thus Mr. Spencer s right to a jury trial was reduced to a discretionary decision one trial judge may make and another may not make. Mr. Spencer s judge arbitrarily denied him this fundamental 20

30 constitutional right. The judge did not have to provide any basis for his decision. Such a completely arbitrary scheme regarding perhaps the most basic common law right and most fundamental right in the Constitutional criminal justice system cannot withstand the force of The Supreme Court s reconfirmation of that right in Apprendi, which rejects, under analogous circumstances, a legislative and judicial effort to disguise a usurpation of constitutional protection in the guise of judicial discretion. At a bare procedural minimum, the trial court should have impaneled a new jury to hear the evidence and provide the constitutionally and statutorily required guidance to the court. Appellate counsel s failure to assert this fundamental error constitutes ineffective assistance of appellate counsel which clearly prejudiced the outcome. Under Apprendi, the state had the burden to establish beyond a reasonable doubt by unanimous jury verdict each aggravator alleged. As it stands, Mr. Spencer was denied his right to have his sentence determined by the untainted co-sentencer, the jury, that Florida s statutory scheme envisions and the Constitution requires. In sum, the Florida death penalty statute on its face and as applied to Mr. Spencer is unconstitutional in that it 21

31 deprived him of right to an indictment which put him on notice of the elements of his crime which would permit the state to impose the death penalty and deprived him of his right to have those elements proven beyond a reasonable doubt as determined by a unanimous jury of his peers. Further, under Strickland v. Washington, supra, Mr. Spencer received ineffective assistance of appellate counsel in failing to raise on appeal the denial of Mr. Spencer s right to have the aggravators specified in the indictment and to have them determined by a unanimous jury verdict using the beyond-areasonable-doubt standard mandated by the Constitution. Further, the trial judge s unfettered discretion to deny or grant a jury determination of aggravating factors and weighing of those factors against mitigation should have been raised on appeal as fundamental error. Imposition of the death penalty under such circumstances constitutes and arbitrary and capricious imposition of the death penalty which violates due process and offends equal protection. Apprendi, a watershed case from the United States Supreme Court, has exposed the unconstitutionality of the Florida Capital sentencing statute. Certainly, as applied to Mr. Spencer in this case, Florida process has deprived him of his right to an indictment that advises him of the elements 22

32 of the crime which, if proven beyond a reasonable doubt and so found by a unanimous jury of his peers, put him in jeopardy of having his life terminated by the state. His appellate counsel provided ineffective assistance in that he failed to raise the fundamental errors set out in this claim on appeal. CLAIM II THE PERFORMANCE OF APPELLATE COUNSEL IN FAILING TO RAISE FUNDAMENTAL ERROR WAS DEFICIENT PERFORMANCE WHICH PREJUDICED MR. SPENCER IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. 1. PROSECUTORIAL MISCONDUCT When improper conduct by a prosecutor permeates a case, this court has vacated the convictions obtained by such conduct. Ruiz v. State, 743 So.2d 1 (Fla. 1999); Garcia v. State, 622 So. 2d 1324 (Fla. 1993); Nowitzke v. State, 572 So.2d 1346 (Fla. 1990). The state s presentation of false and misleading testimony, in addition to improper, inflammatory argument, denied Mr. Spencer of his fundamental right to a fair trial. As Mr Spencer will specify herein, the prosecutor repeatedly made inflammatory, improper, and prejudicial comments during her examination of witnesses and at opening and closing argument of both phases of the trial. 23

33 Additionally, the prosecutor engaged in inflammatory histrionics which were both inappropriate and prejudicial. As a result of these comments and actions, the jury was exposed to inadmissable and prejudicial evidence, thus denying Mr. Spencer his fundamental right to a fair trial. Appellate counsel was ineffective for failing to raise these claims on appeal. During her opening argument at guilt phase, Prosecutor Dorothy Sedgwick improperly stated that evidence would be presented through witness Krista Mays that the victim was armed with a rifle on the evening of January 17, 1992: MS. SEDGWICK: The evidence will show that before her murder, that Karen Spencer had become very afraid. And that she had begun to sleep with a gun. And that that same night before her murder, going from the morning when Walt Smith had seen Dusty Ray Spencer staring at her house, that Karen Spencer had a friend over her house,[sic] Krista Mays. And Krista Mays very visibly observed the way the fear acted on Karen Spencer. Krista Mays last memories of Karen Spencer are that when Krista Mays showed up at the house, that Karen Spencer answered the door with a gun in her hand. (T. 426). This was an intentional and improper presentation to the jury of a hearsay statement for which there was no 24

34 exception. The intentional comment brought evidence before the jury which the prosecutor knew was inadmissable. 2 During her opening argument at guilt phase, the prosecutor also told the jury that Timothy Johnson, Karen Spencer s son, had witnessed Mr. Spencer beating Karen Spencer with an iron: MS. SEDGWICK: We will, through the testimony of witnesses, prove beyond and to the exclusion of every reasonable doubt that on January 4, 1992, Dusty Ray Spencer tried to kill Karen Spencer, beating her in the head repeatedly with a household iron, that that was witnessed by her son, Timothy Johnson. (T. 422). The prosecutor s argument on this point was inconsistent with the actual evidence. During both his pretrial deposition and trial testimony, Timothy Johnson never indicated that he had witnessed Mr. Spencer hitting Karen Spencer with an iron. In reality, the only evidence that Karen Spencer was hit with an iron was a hearsay statement from the victim, brought in through Dr. Bowman (T. 648). The prosecutor s statement was an improper presentation of false evidence which prejudiced Mr. Spencer and denied him the fundamental right to a fair trial. 2 In fact, the trial court later sustained objections to the admissibility of this evidence when the prosecutor tried to present it during the State s case (T. 852). 25

35 Thirdly, during the direct examination of Deputy Sandra Blume, the prosecutor elicited improperly melodramatic, irrelevant testimony regarding the victim s dog having been removed from the crime scene. The following exchange between the prosecutor and Deputy Blume was presented to the jury: Q: Okay. Was anything taken out of the house before the arrival of the forensic technicians? A: Yes there was. Q: What? A: When I first arrived and looked up closely at the body, she had a little white poodle dog- - (T. 687). At that point, an objection was taken and sustained as to any further evidence regarding the victim s dog. The prosecutor knew that the victim s dog was the only evidence removed from the crime scene before forensic technicians arrived. Thus, she knew what Deputy Blume s response would be and intentionally elicited it. This ploy was undertaken to improperly appeal to the emotions of the jury. During her closing argument, Prosecutor Sedgwick engaged in inflammatory histrionics by putting on a pair of rubber latex gloves, the type allegedly worn by Mr. Spencer on the day of the crime (T. 1061, R. 57). This action by the 26

36 prosecutor was designed to ignite the raw emotions of the jury. During direct examination of witnesses Timothy Johnson and Krista Mays, Prosecutor Sedgwick elicited testimony that Karen Spencer was armed with a rifle on the night prior to the alleged crime. This testimony was inadmissable hearsay for which there was no exception. Even after an objection to a similar question to Timothy Johnson had been sustained, the following exchange took place between the prosecutor and witness Mays: Q: Did you see a gun in the house that night? A: Yes, I did. Q: When would have been the first occasion that you saw the gun? (T. 851). At this point a proper objection was taken and sustained as to any further mention of the victim carrying a gun. Apparently unshaken by this ruling from the court, Prosecutor Sedgwick, in her closing argument to the jury at guilt phase, again brought before the jury the fact that the victim was armed with a rifle on the night before the alleged crime: MS. SEDGWICK: The night before, on January 17, 1992, Krista Mays was in the house with Karen Spencer. She told you that she was there from 8:30, that she came at 8:30 27

37 originally, and she left at two in the morning. That when she answered- - that when Karen answered the door, that she, Krista Mays, saw the rifle. Karen came to the door with the rifle in her hand. (T. 1040). This argument to the jury was in blatant disregard of the court s prior ruling on the particular evidence in question. This argument had the effect of tainting the jury with evidence that was otherwise inadmissable and which should have never been presented to the jury. This intentional conduct by the prosecutor prejudiced Mr. Spencer and denied him the fundamental right to a fair trial. During her closing argument at guilt phase, Prosecutor Sedgwick engaged in inflammatory histrionics by exhibiting an emotional display in front of the jury (T. 1061, R. 57). This conduct appealed to the raw emotions of the jury. It had the effect of creating sympathy, not only for the victim, but for the prosecutor herself. Additionally, this action improperly personalized the prosecutor in the eyes of the jury. This intentional and improper conduct prejudiced Mr. Spencer and denied him the fundamental right to a fair trial. During her penalty phase cross-examination of defense expert Kathleen Burch, a clinical psychologist, the prosecutor improperly commented on Mr. Spencer s exercise of 28

38 his Fifth Amendment right not to testify. This colloquy ensued: Q: When you interviewed Dusty Spencer, concerning his life history, or when you talked to Dusty Spencer about what occurred during the murder, was he under oath? A: No. Q: Okay. Was he cross-examined by you, or any other person, concerning what he told you versus what any of the reports indicated happened? Did you cross-examine him? A: No. I was with him alone. Q: But you did not question him, did you, about contradictions in the police reports contrary to his statement, is that correct? A: No, I had not seen any of that stuff before I saw him. Q: Okay. Would you consider the type of testimony that the jury would have received, that the jury would have heard, that being sworn testimony subject to cross-examination by the state, and defense, as to be a superior form of fact finding for factual determination than what you did, just listening to Dusty Spencer s answers? (R. 182). During her cross-examination of defense expert Dr. Jonathan Lipman, a neuro-pharmacological expert, the prosecutor once again improperly commented on Mr. Spencer s exercise of his Fifth Amendment right: Q: Dr. Lipman, you say that you base your findings based upon a diary that Dusty 29

39 Spencer made for you of his alcohol pattern, is that correct? A: Yes, and upon the alcohol consumption that was recorded during the course of my interview. Q: All right. Did you place him under oath or was he placed under oath for the purposes of giving you that history? A: No. (R ). Obviously intentional, such testimony and comment from the prosecutor suggested to the jury that Mr. Spencer should have taken the stand and subjected himself to crossexamination in order for the trial to be complete and valid or for the expert s testimony to be credible. During her closing argument at penalty phase the prosecutor stated that Mr. Spencer told Dr. Lipman that he had stabbed the victim prior to the victim s son leaving the crime scene: MS. SEDGWICK: Dr. Anderson testified that she received all of those injuries while she was alive. None of them were after death. That he can medically determine that. Dusty Spencer gave statements to Dr. Lipman that he had stabbed Karen before Tim left. Now Tim was confused about that. (R. 391). However, the testimony of Dr. Lipman is completely devoid of any such statement by Mr. Spencer. Rather, Dr. 30

40 Lipman s testimony reveals that Mr. Spencer had no recollection whatsoever of stabbing the victim: DR. LIPMAN: I ll read you his words better than I can say it... And I started to come back from an unconsciousness or a blackout, coming out of a fog, and Tim took off and ran down the road and I left and went to the woods. I don t remember stabbing her. I just remember coming out of the fog and the knife was in my hands. They said I stabbed her, but I don t remember. (R. 371). This testimony from Dr. Lipman is irreconcilable with the prosecutor s representation to the jury, but the prosecutor had managed to illicitly convey to the jury the impression that Mr. Spencer had a conscious memory of intentionally stabbing his wife. No evidence supports this statement. The prosecutor was also bolstering her own false statement from the opening that Timothy Johnson had actually seen Mr. Spencer stab Karen Spencer. Thus, to inflame the jury, the prosecutor intentionally misrepresented both Dr. Lipman s and Timothy Johnson s testimony. The United States Supreme Court has held that improper comments and actions which reflect an emotional reaction to the case are undoubtedly...improper. Darden v. Wainwright 477 U.S. 168, 178, 106 S.Ct. 2464, 2470 (1986). The improper actions and comments in Mr. Spencer s 31

41 case so infected [his] trial with unfairness as to make the resulting conviction a denial of due process. Donnelly v. Dechristoforo, 416 U.S. 636, 642, 94 S.Ct. 1868, 1871 (1974). While singular incidents of impropriety may sometimes not result in a denial of due process, when, as in Mr. Spencer s case a certain critical mass of misconduct is reached, due process is thwarted. The critical mass of prosecutorial misconduct in Mr. Spencer s case included specific constitutional violations. The prosecutor improperly commented on Mr. Spencer s Fifth Amendment right not to testify and presented false evidence. It is a constitutional violation for the prosecutor to comment on a defendant s right not to testify at his or her trial. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, L.Ed. 2d 106 (1965). Additionally, the Constitution is breached when the State presents false evidence. Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed. 2d 690 (1967); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The United States Supreme court has held that [w]hen specific guarantees of the Bill of Rights are involved, this Court has taken special care to assure that prosecutorial misconduct in no way impermissibly infringes them. Dechristoforo, 416 U.S. at 637. When specific constitutional violations such as those 32

42 in Mr. Spencer s case are involved, the supervisory powers of reviewing courts are energized in order to correct the denial of due process that occurs. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); United States v. Hasting, 461 U.S. 499, 103 S.Ct (1983). By her actions and arguments, the prosecutor infiltrated and infected the jury in Mr. Spencer s case. Such comments, tactics, and strategies, were coldly calculated to inflame the passions of the jury. Appellate counsel should have asserted the prosecutor s conduct on appeal as fundamental error and such failure, insidiously prejudicial in that the prosecutor s conduct was specifically tailored to incite the emotions of the jury, constitutes ineffective assistance of counsel. 2. ELICITING FALSE TESTIMONY The United States Supreme Court has held that a constitutional violation occurs when the State either knowingly presents or fails to correct material false statements. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). This Court has held such actions similarly offensive under Florida law. Routly v. State, 590 So.2d 397 (Fla. 1991). To establish a violation under Giglio and its progeny, a petitioner must establish: (1) that the testimony is false; 33

43 (2) that the prosecutor knew the testimony was false; and (3) that the statement was material. Craig v. State, 685 So.2d 1224 (Fla. 1996). Under Giglio, the prosecutor has a duty to correct testimony he or she knows is false. Routly, 590 So.2d at 400. This Court has additionally held that if a reasonable probability exists that the presentation of false evidence has tainted the jury s verdict, a new trial is required. Id. Thus the critical standard is whether there is any reasonable likelihood that the false testimony could have effected the judgement of the jury. United States v. Agurs, 427 U.S. 97, 103 (1976). Importantly, relief is warranted if the record suggests a reasonable likelihood that the jurors could have considered the false evidence or argument. This standard does not entail an inquiry into whether the evidence might have made a difference in the outcome if it had not been considered. During her opening argument at guilt phase, Prosecutor Sedgwick stated that Timothy Johnson had witnessed Mr. Spencer beating Karen Spencer with an iron: MS. SEDGWICK: We will, through the testimony of witnesses, prove beyond and to the exclusion of every reasonable doubt that on January 4, 1992, Dusty Ray Spencer 34

44 tried to kill Karen Spencer, beating her in the head repeatedly with a household iron, that that was witnessed by her son, Timothy Johnson. (T. 422). The prosecutor s argument on this point was inconsistent with the actual evidence. During both his pretrial deposition and trial testimony, Timothy Johnson never indicated that he had witnessed Mr. Spencer hitting Karen Spencer with an iron. The prosecutor s statement during opening argument was simply false. The prosecutor s statement was intended to fortify the attempted murder charge by presenting the court and the jury with a false witness. In reality, the only evidence of Karen Spencer being hit with an iron was a hearsay statement from the victim, brought in through Dr. Bowman (T. 648). The prosecutor knew that her statement during opening argument was false. This materially false statement, which likely influenced the jury, particularly as to the attempted murder charge, but also on the issue of premeditation and in sentencing, was constitutionally improper. Additionally, during her closing argument at penalty phase, the prosecutor stated that Mr. Spencer told Dr. Lipman that he had stabbed the victim prior to Timothy Johnson leaving the crime scene: 35