Executed June 12, 2013 07:24 p.m. EST by Lethal Injection in Florida
15th murderer executed in U.S. in 2013
1335th murderer executed in U.S. since 1976
3rd murderer executed in Florida in 2013
77th murderer executed in Florida since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
William Edward Van Poyck
W / M / 32 - 58
|Fred Sidney Griffis
W / M / 40
Van Poyck v. State, 564 So.2d 1066 (Fla. 1990). (Direct Appeal)
Van Poyck v. State, 694 So.2d 686 (Fla. 1997). (PCR)
Van Poyck v. Florida Dept. of Corrections, 290 F.3d 1318 (11th Cir. 2002). (Habeas)
Final / Special Meal:
Oatmeal and eggs.
"Set me free."
Florida Department of CorrectionsDC Number: 034071
Current Prison Sentence History:
11/12/1971 ROBB. GUN/DEADLY WPN 01/27/1972 MIAMI-DADE 7110294 SENTENCED TO LIFE
11/26/1971 BURGUNOCCSTRUC/CV OR ATT. 04/06/1972 MIAMI-DADE 7110077 10Y 0M 0D
11/26/1971 LARCENY/GRAND THEFT 04/06/1972 MIAMI-DADE 7110077 10Y 0M 0D
11/22/1971 GRAND THEFT MOTOR VEHICLE 04/06/1972 MIAMI-DADE 7110462 5Y 0M 0D
11/22/1971 TRAFFIC IN STOLEN PROPERTY 04/06/1972 MIAMI-DADE 7110462 5Y 0M 0D
11/25/1971 GRAND THEFT MOTOR VEHICLE 04/06/1972 MIAMI-DADE 7110703 5Y 0M 0D
09/18/1979 ESCAPE 01/14/1980 MIAMI-DADE 7915375 1Y 0M 0D
06/24/1987 1ST DG MUR/PREMED. OR ATT. 12/21/1988 PALM BEACH 8706736 DEATH SENTENCE
06/24/1987 ROBB. GUN/DEADLY WPN 12/21/1988 PALM BEACH 8706736 SENTENCED TO LIFE
06/24/1987 HOMICIDE,MANSL.CUL.NEGLI(ATTEMPTED) 12/21/1988 PALM BEACH 8706736 15Y 0M 0D
06/24/1987 AGG ASSLT-W/WPN NO INTENT TO K 12/21/1988 PALM BEACH 8706736 5Y 0M 0D
06/24/1987 ESCAPE 12/21/1988 PALM BEACH 8706736 15Y 0M 0D
06/24/1987 1ST DEG MUR,COM.OF FELONY(ATTEMPTED) 12/21/1988 PALM BEACH 8811116 SENTENCED TO LIFE
04/13/1972 to 02/28/1978
04/20/1978 to 10/07/1986
12/28/1988 to 06/12/2013
On June 24, 1987, corrections officers Steven Turner and Fred Griffis transported James O’Brien, a state prison inmate, in a van from Glades Correctional Institute to a West Palm Beach dermatologist’s office for an examination for skin cancer. Griffis, who was not armed, drove the van while Turner watched O’Brien, who was secured in a caged area behind Griffis. After Griffis, a decorated Vietnam war veteran, pulled the van into an alley behind the doctor’s office, Turner looked down for his paperwork. Upon looking up, he saw a person, whom he later identified as William Van Poyck, O'Brien's best friend, aiming a pistol at his head. Van Poyck ordered Turner to exit the van.
At the same time, Frank Valdes, an accomplice of Van Poyck’s, went to the driver’s side of the van. Turner testified that Van Poyck took his gun, ordered him to get under the van, and kicked him while he was attempting to comply with Van Poyck’s order. He testified that, while under the van, he saw Griffis exit the van; he noticed another person forcing Griffis to the back of the van; and, while noticing two sets of feet in close proximity to the rear of the van, he heard a series of shots and saw Griffis fall to the ground. Griffis had refused to cooperate and tossed the keys into some nearby bushes and refused to say where they were. Turner further stated that Van Poyck had stopped kicking him when the gunfire started, but noted that he did not know where Van Poyck was at the time of the shooting. Griffis was shot three times, once in the head and twice in the chest. Expert testimony indicated that the shot to the head was fired with the barrel of the gun placed against Griffis’ head and that each of the wounds would have been fatal. It was also determined that the murder weapon was a Hungarian Interarms nine millimeter semiautomatic pistol.
After Griffis was shot, Turner was forced to get up from under the van and look for the keys. Upon realizing that Turner did not have them, Valdez fired numerous shots at a padlock on the van in an attempt to free O’Brien. One of the shots ricocheted off of the van and struck Turner, causing him minor injuries. Turner testified that at around this time Van Poyck aimed the Hungarian Interarms semiautomatic nine millimeter pistol at him and pulled the trigger. Van Poyck and Valdes then fled the scene in a Cadillac, and a chase with police ensued. During the chase, while Valdes drove, Van Poyck fired numerous shots at the pursuing police cars, striking three of them. They traveled down Palm Beach Lakes Boulevard, and the turned south on Australian Avenue. Eventually, Valdes lost control of the car and it struck a tree near the Palm Beach airport. The two were arrested and four pistols were recovered from the car, including the service revolver of the guard that was killed.
Van Poyck, testifying in his own behalf, denied that he shot Griffis and stated that, while kicking Turner, he heard the gunshots and saw Griffis fall to the ground. He did, however, acknowledge that he planned the operation and recruited Valdes to assist him in his plan. Additionally, he stated that they took three guns with them. Van Poyck was tried and convicted for first-degree murder, attempted first-degree murder, aiding in an attempted escape, aggravated assault, and six counts of attempted manslaughter. By a vote of eleven to one, the jury recommended that the penalty of death be imposed. The trial judge followed the jury's recommendation and sentenced Van Poyck to death.
Van Poyck had a long history of robbery and burglary despite his upbringing as the son of an Eastern Airlines executive. At his trial in 1990, Valdes was restrained after striking a man who was testifying against him. Valdes was also sentenced to death for his role in the crime. He was beaten to death by prison guards in 1999 during a violent cell extraction. Three guards were tried for second-degree murder and acquitted. The state of Florida paid the Valdes family over $700,000 to settle a civil lawsuit.
Griffis's family, of West Palm Beach, attended almost every court proceeding. They watched the target of the escape attempt, James O`Brien, acquitted in Griffis's death. "Fred made a decision to do a certain thing and we should stand by that," Dennis Martin said, referring to Griffis throwing away the keys that would have freed O`Brien. "We resigned ourselves to behave in a fashion that would be commendable to Fred's memory." Griffis's family believes in the judicial system. "The system is slow and sometimes you get frustrated with it, but it grinds its way through and it works," Carolyn Martin said.
UPDATE: Carolyn Martin and Ronald Griffis have waited for almost three decades for justice for their brother. “A quarter-century is a long time,” said Martin, who, like other family members, idolized her older brother, Fred Griffis, a decorated Vietnam War veteran. Ronald Griffis said he believes at long last Van Poyck’s days are numbered. “I’m confident that we’ll have closure soon,” he said.
"Florida executes man involved in 1987 prison guard killing." (Wed Jun 12, 2013 7:49pm EDT)
(Reuters) - A Florida man, convicted of involvement in the 1987 killing of a prison guard during a failed attempt to free a jailed friend, was executed on Wednesday, a state prison official said. Willian Van Poyck was pronounced dead at 7:24 p.m. EDT, said Ann Howard, a spokeswoman for the Florida Department of Corrections.
Tampa Bay Times
"William Van Poyck Executed." (Wednesday, June 12, 2013 4:30am)
STARKE, Fla. (AP) — A Florida man was executed Wednesday for the murder of a guard during a botched 1987 prison van ambush intended to free an imprisoned friend. William Van Poyck, 58, was pronounced dead at 7:24 p.m., 23 minutes after the injection process began at Florida State Prison. "Set me free," were his final words.
Van Poyck's case garnered international attention because he published three books and maintained a blog while on death row. He even wrote recently about his pending execution. "He's finally free from those prison walls," Lisa Van Poyck, the inmate's sister, said as she stood among the protesters standing across the street from the building where her brother was executed. The family of the slain guard, Fred Griffis, has said in interviews that they were frustrated that news stories focused on Van Poyck, the crime and his writings — and not Griffis. "It's been a very traumatic experience," said Norman Traylor, the victim's cousin.
William Van Poyck and Frank Valdes ambushed a prison van outside a West Palm Beach doctor's office in a failed attempt to free James O'Brien — with whom they'd served time. Griffis was fatally shot after he threw the van's keys into the bushes to foil the escape. Van Poyck and Valdes were captured following a car chase. Steve Turner, one of the corrections officers ambushed that day, spoke after the execution on Wednesday. "Justice has prevailed," he said. "They can close the book."
In his appeals, Van Poyck argued that Valdes fired the fatal shots and that if the jury had known that, he wouldn't have been sentenced to death. The Florida Supreme Court last week rejected Van Poyck's latest appeal involving Valdes' widow, who says her husband told her he was the gunman. The justices noted that Van Poyck planned the escape attempt and that he and Valdes carried loaded weapons.
In 1999, Valdes was stomped to death in prison. Seven guards were charged with his death, but none were convicted. Following Valdes' death, Van Poyck was moved to Sussex State Prison in Virginia for his safety. That's where he wrote a 324-page autobiography, "A Checkered Past: A Memoir," saying his purpose was not to elicit sympathy but "to put a human face on me and convicts in general." Van Poyck went on to write two novels. He won awards for his writing and kept a blog since 2005 by writing letters to his sister, who posted them online. "He is deeply remorseful for the ending of Fred Griffis' life," Lisa Van Poyck told The Associated Press on Tuesday. "He is guilty of a crime of trying to break somebody out of a prison transport van — he had no intention of hurting anyone."
"Van Poyck executed for role in Palm Beach County officer's death," by Ben Wolford. (June 13, 2013)
William Van Poyck, whose botched jail break in 1987 left a prison guard dead, spent his last day with family, friends and a spiritual adviser. An executioner injected poison and stopped his heart at 7:24 p.m. Wednesday at the Florida State Prison in Starke, satisfying his final words, “set me free,” and nullifying 26 years of legal maneuvering to save his life. The U.S. Supreme Court and Gov. Rick Scott rebuffed last-minute appeals for a stay and for clemency.
“Bill, in the last visit that we had with him, is so at peace and so calm,” said his sister, Lisa Van Poyck. “In the pictures that we took, he is beaming.” She came to Starke, about 35 miles north of Gainesville, from her home in Virginia for the execution. Family members are not permitted to witness executions, but reporters were there. Lisa Van Poyck said the victim’s family chose not to attend. Having been in prison almost all of his adult life, she said he was ready to go.
Van Poyck, 58, orchestrated a plan to free inmate James O’Brien from Glades Correctional Institution in unincorporated Palm Beach County near Belle Glade on June 24, 1987. O’Brien had an appointment at a downtown West Palm Beach dermatologist, and he tipped off Van Poyck the night before. As he and accomplice Frank Valdes ambushed the prisoner transport van, things quickly went wrong. The driver, Fred Griffis, defiantly tossed the keys into a bush. Van Poyck insists it was Valdes who fired the three shots into Griffis' torso and head that killed him. But that has not been proved in court, and Valdes was beaten to death in prison.
"When [Griffis] was murdered, it basically ripped a hole in the family's heart that's never really healed," Griffis's brother, Robert, told The Associated Press on Wednesday. Van Poyck was convicted of felony murder, which does not require actually having pulled the trigger. Courts have denied appeals to overturn the jury's death sentence.
"He is certainly not the same man he was 25 years ago," said Guy Moore, the former director of a Tallahassee halfway house where Van Poyck spent time. "He is smart, articulate and uses his legal skills to help others. He is remorseful of his entire life as he looks back." On Wednesday morning, officers at Florida State Prison served Van Poyck breakfast of oatmeal and eggs at 5 a.m., his first warm breakfast in years, his sister said. Though he was allowed one last $40 meal at 10 a.m., Van Poyck declined to request it.
Van Poyck also refused the normal course of chemicals, which begins with a sedative, Lisa Van Poyck said. She said he would only be given highly concentrated potassium chloride to stop his heart. "He wants to be clear of mind," she said. "He wants to be focused on one thing." In three hours visiting with friends and family, Van Poyck didn't say what that one thing would be. But if she had to guess, his sister said, it would probably be his parents, the idea of love and his favorite color, purple.
"Van Poyck executed for murdering prison guard during 1987 escape attempt. (June 13, 2013 8:54 AM)
CBS/AP) STARKE, Fla. -- A Florida man was executed Wednesday night for the murder of a guard during a botched 1987 prison van ambush intended to free an imprisoned friend. William Van Poyck, 58, was pronounced dead at 7:24 p.m., 23 minutes after the injection process began at Florida State Prison. "Set me free," were his final words.
Van Poyck's case garnered international attention because he published three books and maintained a blog while on death row. He even wrote recently about his pending execution. "He's finally free from those prison walls," Lisa Van Poyck, the inmate's sister, said as she stood among the protesters standing across the street from the building where her brother was executed.
The family of the slain guard, Fred Griffis, has said in interviews that they were frustrated that news stories focused on Van Poyck, the crime and his writings - and not Griffis. "It's been a very traumatic experience," said Norman Traylor, the victim's cousin.
William Van Poyck and Frank Valdes ambushed a prison van outside a West Palm Beach doctor's office in a failed attempt to free James O'Brien - with whom they'd served time. Griffis was fatally shot after he threw the van's keys into the bushes to foil the escape. Van Poyck and Valdes were captured following a car chase. Steve Turner, one of the corrections officers ambushed that day, spoke after the execution on Wednesday.
"Justice has prevailed," he said. "They can close the book." In his appeals, Van Poyck argued that Valdes fired the fatal shots and that if the jury had known that, he wouldn't have been sentenced to death. The Florida Supreme Court last week rejected Van Poyck's latest appeal involving Valdes' widow, who says her husband told her he was the gunman. The justices noted that Van Poyck planned the escape attempt and that he and Valdes carried loaded weapons.
In 1999, Valdes was stomped to death in prison. Seven guards were charged with his death, but none were convicted. Following Valdes' death, Van Poyck was moved to Sussex State Prison in Virginia for his safety. That's where he wrote a 324-page autobiography, "A Checkered Past: A Memoir," saying his purpose was not to elicit sympathy but "to put a human face on me and convicts in general." Van Poyck went on to write two novels. He won awards for his writing and kept a blog since 2005 by writing letters to his sister, who posted them online. "He is deeply remorseful for the ending of Fred Griffis' life," Lisa Van Poyck told The Associated Press on Tuesday. "He is guilty of a crime of trying to break somebody out of a prison transport van - he had no intention of hurting anyone."
In his blog, Van Poyck wrote in recent entries that he has received dozens of letters a day regarding his pending execution. "I am not unusual in wanting to believe, at the end of my line, that my life counted for something good, that I had some positive influence on someone, that my life made a difference, that I was able to at least partially atone for the many mistakes I made earlier in life," he wrote.
Griffis family members planned a gathering Wednesday for quiet reflection about Fred Griffis' life. "When he was murdered, it basically ripped a hole in the family's heart that's never really healed," said brother Ronald Griffis. Ronald Griffis said his brother was always looking out for others. He was released on medical discharge after his first tour in Vietnam, but re-enlisted for two more because he felt he could help. In his final moments, he was determined not to let a killer escape. Said Ronald Griffis: "I knew that even atthe end, he was still my brother, he was still Freddy, that's who he was. He protected others."
Following is a list of inmates executed since Florida resumed executions in 1979:
1. John Spenkelink, 30, executed May 25, 1979, for the murder of traveling companion Joe Szymankiewicz in a Tallahassee hotel room.
2. Robert Sullivan, 36, died in the electric chair Nov. 30, 1983, for the April 9, 1973, shotgun slaying of Homestead hotel-restaurant assistant manager Donald Schmidt.
3. Anthony Antone, 66, executed Jan. 26, 1984, for masterminding the Oct. 23, 1975, contract killing of Tampa private detective Richard Cloud.
4. Arthur F. Goode III, 30, executed April 5, 1984, for killing 9-year-old Jason Verdow of Cape Coral March 5, 1976.
5. James Adams, 47, died in the electric chair on May 10, 1984, for beating Fort Pierce millionaire rancher Edgar Brown to death with a fire poker during a 1973 robbery attempt.
6. Carl Shriner, 30, executed June 20, 1984, for killing 32-year-old Gainesville convenience-store clerk Judith Ann Carter, who was shot five times.
7. David L. Washington, 34, executed July 13, 1984, for the murders of three Dade County residents _ Daniel Pridgen, Katrina Birk and University of Miami student Frank Meli _ during a 10-day span in 1976.
8. Ernest John Dobbert Jr., 46, executed Sept. 7, 1984, for the 1971 killing of his 9-year-old daughter Kelly Ann in Jacksonville..
9. James Dupree Henry, 34, executed Sept. 20, 1984, for the March 23, 1974, murder of 81-year-old Orlando civil rights leader Zellie L. Riley.
10. Timothy Palmes, 37, executed in November 1984 for the Oct. 19, 1976, stabbing death of Jacksonville furniture store owner James N. Stone. He was a co-defendant with Ronald John Michael Straight, executed May 20, 1986.
11. James David Raulerson, 33, executed Jan. 30, 1985, for gunning down Jacksonville police Officer Michael Stewart on April 27, 1975.
12. Johnny Paul Witt, 42, executed March 6, 1985, for killing, sexually abusing and mutilating Jonathan Mark Kushner, the 11-year-old son of a University of South Florida professor, Oct. 28, 1973.
13. Marvin Francois, 39, executed May 29, 1985, for shooting six people July 27, 1977, in the robbery of a ``drug house'' in the Miami suburb of Carol City. He was a co-defendant with Beauford White, executed Aug. 28, 1987.
14. Daniel Morris Thomas, 37, executed April 15, 1986, for shooting University of Florida associate professor Charles Anderson, raping the man's wife as he lay dying, then shooting the family dog on New Year's Day 1976.
15. David Livingston Funchess, 39, executed April 22, 1986, for the Dec. 16, 1974, stabbing deaths of 53-year-old Anna Waldrop and 56-year-old Clayton Ragan during a holdup in a Jacksonville lounge.
16. Ronald John Michael Straight, 42, executed May 20, 1986, for the Oct. 4, 1976, murder of Jacksonville businessman James N. Stone. He was a co-defendant with Timothy Palmes, executed Jan. 30, 1985.
17. Beauford White, 41, executed Aug. 28, 1987, for his role in the July 27, 1977, shooting of eight people, six fatally, during the robbery of a small-time drug dealer's home in Carol City, a Miami suburb. He was a co-defendant with Marvin Francois, executed May 29, 1985.
18. Willie Jasper Darden, 54, executed March 15, 1988, for the September 1973 shooting of James C. Turman in Lakeland.
19. Jeffrey Joseph Daugherty, 33, executed March 15, 1988, for the March 1976 murder of hitchhiker Lavonne Patricia Sailer in Brevard County.
20. Theodore Robert Bundy, 42, executed Jan. 24, 1989, for the rape and murder of 12-year-old Kimberly Leach of Lake City at the end of a cross-country killing spree. Leach was kidnapped Feb. 9, 1978, and her body was found three months later some 32 miles west of Lake City.
21. Aubry Dennis Adams Jr., 31, executed May 4, 1989, for strangling 8-year-old Trisa Gail Thornley on Jan. 23, 1978, in Ocala.
22. Jessie Joseph Tafero, 43, executed May 4, 1990, for the February 1976 shooting deaths of Florida Highway Patrolman Phillip Black and his friend Donald Irwin, a Canadian constable from Kitchener, Ontario. Flames shot from Tafero's head during the execution.
23. Anthony Bertolotti, 38, executed July 27, 1990, for the Sept. 27, 1983, stabbing death and rape of Carol Ward in Orange County.
24. James William Hamblen, 61, executed Sept. 21, 1990, for the April 24, 1984, shooting death of Laureen Jean Edwards during a robbery at the victim's Jacksonville lingerie shop.
25. Raymond Robert Clark, 49, executed Nov. 19, 1990, for the April 27, 1977, shooting murder of scrap metal dealer David Drake in Pinellas County.
26. Roy Allen Harich, 32, executed April 24, 1991, for the June 27, 1981, sexual assault, shooting and slashing death of Carlene Kelly near Daytona Beach.
27. Bobby Marion Francis, 46, executed June 25, 1991, for the June 17, 1975, murder of drug informant Titus R. Walters in Key West.
28. Nollie Lee Martin, 43, executed May 12, 1992, for the 1977 murder of a 19-year-old George Washington University student, who was working at a Delray Beach convenience store.
29. Edward Dean Kennedy, 47, executed July 21, 1992, for the April 11, 1981, slayings of Florida Highway Patrol Trooper Howard McDermon and Floyd Cone after escaping from Union Correctional Institution.
30. Robert Dale Henderson, 48, executed April 21, 1993, for the 1982 shootings of three hitchhikers in Hernando County. He confessed to 12 murders in five states.
31. Larry Joe Johnson, 49, executed May 8, 1993, for the 1979 slaying of James Hadden, a service station attendant in small north Florida town of Lee in Madison County. Veterans groups claimed Johnson suffered from post-traumatic stress syndrome.
32. Michael Alan Durocher, 33, executed Aug. 25, 1993, for the 1983 murders of his girlfriend, Grace Reed, her daughter, Candice, and his 6-month-old son Joshua in Clay County. Durocher also convicted in two other killings.
33. Roy Allen Stewart, 38, executed April 22, 1994, for beating, raping and strangling of 77-year-old Margaret Haizlip of Perrine in Dade County on Feb. 22, 1978.
34. Bernard Bolander, 42, executed July 18, 1995, for the Dade County murders of four men, whose bodies were set afire in car trunk on Jan. 8, 1980.
35. Jerry White, 47, executed Dec. 4, 1995, for the slaying of a customer in an Orange County grocery store robbery in 1981.
36. Phillip A. Atkins, 40, executed Dec. 5, 1995, for the molestation and rape of a 6-year-old Lakeland boy in 1981.
37. John Earl Bush, 38, executed Oct. 21, 1996, for the 1982 slaying of Francis Slater, an heir to the Envinrude outboard motor fortune. Slater was working in a Stuart convenience store when she was kidnapped and murdered.
38. John Mills Jr., 41, executed Dec. 6, 1996, for the fatal shooting of Les Lawhon in Wakulla and burglarizing Lawhon's home.
39. Pedro Medina, 39, executed March 25, 1997, for the 1982 slaying of his neighbor Dorothy James, 52, in Orlando. Medina was the first Cuban who came to Florida in the Mariel boat lift to be executed in Florida. During his execution, flames burst from behind the mask over his face, delaying Florida executions for almost a year.
40. Gerald Eugene Stano, 46, executed March 23, 1998, for the slaying of Cathy Scharf, 17, of Port Orange, who disappeared Nov. 14, 1973. Stano confessed to killing 41 women.
41. Leo Alexander Jones, 47, executed March 24, 1998, for the May 23, 1981, slaying of Jacksonville police Officer Thomas Szafranski.
42. Judy Buenoano, 54, executed March 30, 1998, for the poisoning death of her husband, Air Force Sgt. James Goodyear, Sept. 16, 1971.
43. Daniel Remeta, 40, executed March 31, 1998, for the murder of Ocala convenience store clerk Mehrle Reeder in February 1985, the first of five killings in three states laid to Remeta.
44. Allen Lee ``Tiny'' Davis, 54, executed in a new electric chair on July 8, 1999, for the May 11, 1982, slayings of Jacksonville resident Nancy Weiler and her daughters, Kristina and Katherine. Bleeding from Davis' nose prompted continued examination of effectiveness of electrocution and the switch to lethal injection.
45. Terry M. Sims, 58, became the first Florida inmate to be executed by injection on Feb. 23, 2000. Sims died for the 1977 slaying of a volunteer deputy sheriff in a central Florida robbery.
46. Anthony Bryan, 40, died from lethal injection Feb. 24, 2000, for the 1983 slaying of George Wilson, 60, a night watchman abducted from his job at a seafood wholesaler in Pascagoula, Miss., and killed in Florida.
47. Bennie Demps, 49, died from lethal injection June 7, 2000, for the 1976 murder of another prison inmate, Alfred Sturgis. Demps spent 29 years on death row before he was executed.
48. Thomas Provenzano, 51, died from lethal injection on June 21, 2000, for a 1984 shooting at the Orange County courthouse in Orlando. Provenzano was sentenced to death for the murder of William ``Arnie'' Wilkerson, 60.
49. Dan Patrick Hauser, 30, died from lethal injection on Aug. 25, 2000, for the 1995 murder of Melanie Rodrigues, a waitress and dancer in Destin. Hauser dropped all his legal appeals.
50. Edward Castro, died from lethal injection on Dec. 7, 2000, for the 1987 choking and stabbing death of 56-year-old Austin Carter Scott, who was lured to Castro's efficiency apartment in Ocala by the promise of Old Milwaukee beer. Castro dropped all his appeals.
51. Robert Glock, 39 died from lethal injection on Jan. 11, 2001, for the kidnapping murder of a Sharilyn Ritchie, a teacher in Manatee County. She was kidnapped outside a Bradenton shopping mall and taken to an orange grove in Pasco County, where she was robbed and killed. Glock's co-defendant Robert Puiatti remains on death row.
52. Rigoberto Sanchez-Velasco, 43, died of lethal injection on Oct. 2, 2002, after dropping appeals from his conviction in the December 1986 rape-slaying of 11-year-old Katixa ``Kathy'' Ecenarro in Hialeah. Sanchez-Velasco also killed two fellow inmates while on death row.
53. Aileen Wuornos, 46, died from lethal injection on Oct. 9, 2002, after dropping appeals for deaths of six men along central Florida highways.
54. Linroy Bottoson, 63, died of lethal injection on Dec. 9, 2002, for the 1979 murder of Catherine Alexander, who was robbed, held captive for 83 hours, stabbed 16 times and then fatally crushed by a car.
55. Amos King, 48, executed by lethal inection for the March 18, 1977 slaying of 68-year-old Natalie Brady in her Tarpon Spring home. King was a work-release inmate in a nearby prison.
56. Newton Slawson, 48, executed by lethal injection for the April 11, 1989 slaying of four members of a Tampa family. Slawson was convicted in the shooting deaths of Gerald and Peggy Wood, who was 8 1/2 months pregnant, and their two young children, Glendon, 3, and Jennifer, 4. Slawson sliced Peggy Wood's body with a knife and pulled out her fetus, which had two gunshot wounds and multiple cuts.
57. Paul Hill, 49, executed for the July 29, 1994, shooting deaths of Dr. John Bayard Britton and his bodyguard, retired Air Force Lt. Col. James Herman Barrett, and the wounding of Barrett's wife outside the Ladies Center in Pensacola.
58. Johnny Robinson, died by lethal injection on Feb. 4, 2004, for the Aug. 12, 1985 slaying of Beverly St. George was traveling from Plant City to Virginia in August 1985 when her car broke down on Interstate 95, south of St. Augustine. He abducted her at gunpoint, took her to a cemetery, raped her and killed her.
59. John Blackwelder, 49, was executed by injection on May 26, 2004, for the calculated slaying in May 2000 of Raymond Wigley, who was serving a life term for murder. Blackwelder, who was serving a life sentence for a series of sex convictions, pleaded guilty to the slaying so he would receive the death penalty.
60. Glen Ocha, 47, was executed by injection April 5, 2005, for the October, 1999, strangulation of 28-year-old convenience store employee Carol Skjerva, who had driven him to his Osceola County home and had sex with him. He had dropped all appeals.
61. Clarence Hill 20 September 2006 lethal injection Stephen Taylor
62. Arthur Dennis Rutherford 19 October 2006 lethal injection Stella Salamon
63. Danny Rolling 25 October 2006 lethal injection Sonja Larson, Christina Powell, Christa Hoyt, Manuel R. Taboada, and Tracy Inez Paules
64. Ángel Nieves Díaz 13 December 2006 lethal injection Joseph Nagy
65. Mark Dean Schwab 1 July 2008 lethal injection Junny Rios-Martinez, Jr.
66. Richard Henyard 23 September 2008 lethal injection Jamilya and Jasmine Lewis
67. Wayne Tompkins 11 February 2009 lethal injection Lisa DeCarr
68. John Richard Marek 19 August 2009 lethal injection Adela Marie Simmons
69. Martin Grossman 16 February 2010 lethal injection Margaret Peggy Park
70. Manuel Valle 28 September 2011 lethal injection Louis Pena
71. Oba Chandler 15 November 2011 lethal injection Joan Rogers, Michelle Rogers and Christe Rogers
72. Robert Waterhouse 15 February 2012 lethal injection Deborah Kammerer
73. David Alan Gore 12 April 2012 lethal injection Lynn Elliott
74. Manuel Pardo 11 December 2012 lethal injection Mario Amador, Roberto Alfonso, Luis Robledo, Ulpiano Ledo, Michael Millot, Fara Quintero, Fara Musa, Ramon Alvero, Daisy Ricard.
75. Larry Eugene Mann 10 April 2013 lethal injection Elisa Nelson
76. Elmer Leon Carroll 29 May 2013 lethal injection Christine McGowan
77. William Edward Van Poyck 12 June 2013 lethal injection Ronald Griffis
Florida Commission on Capital Cases
VAN POYCK, William (W/M)
DC # 034071
08/15/05 FSC 05-1513 3.850 Appeal
01/23/06 FSC 05-1513 Initial
03/13/06 FSC 05-1513 Answer
05/18/06 FSC 05-1513 Reply
05/03/07 FSC 05-1513 Denial affirmed
08/02/07 FSC 05-1513 Mandate
10/15/07 USSC 07-524 Petition for Writ of Certiorari filed
11/19/07 USSC 07-524 Response filed
12/03/07 USSC 07-524 Reply brief filed
01/07/08 USSC 07-524 Petition for Writ of Certiorari denied
01/11/07 FSC 07-66 Habeas Corpus
03/14/07 FSC 07-66 Denied
07/16/07 FSC 07-66 Rehearing denied
04/13/11 FSC 11-724 3.851 Appeal filed
01/26/11 CC 87-6736 State's response filed
02/15/11 CC 87-6736 Reply filed
03/03/11 CC 87-6736 Motion denied
12/05/11 CC 87-6736 3.851 Motion filed
Last Updated: 2011-06-28 12:05:50.0
Circumstances of Offense:
Fifteenth Judicial Circuit, Palm Beach County, Case #87-6736-CF-A02
Sentencing Judge: The Honorable Michael D. Miller
Attorney, Trial: Cary E. Klein, Esq.
Attorneys, Direct Appeal: William Lasley and Peter Grable – Private
Attorney, Collateral Appeals: Jeffrey Davis, Lauri Rollings, Martin McClain – Private
Date of Offense: 06/24/87
Date of Sentence: 12/21/88
On 06/24/87, during the transport of a state prisoner named James O’Brien, Van Poyck and an accomplice, Frank Valdez, ambushed the two guards in the prison van, assaulted them, and fired three shots, one to the head and two to the chest, into one of the guards, killing him instantly. In an attempt to free O’Brien from the van, Van Poyck fired numerous shots at the padlock of the van door, with one ricocheting and striking the other guard. Van Poyck and Valdez then fled the scene in a Cadillac, and a chase with police ensued. During the chase, Van Poyck fired numerous shots at the pursuing police cars, striking three of them. Eventually, Valdez lost control of the car and it struck a tree. The two were arrested and four pistols were recovered from the car, including the service revolver of the guard that was killed.
07/14/87 Van Poyck was indicted on the following: Count I: First-Degree Murder, Count II: Armed Robbery, Counts VI-XI: Attempted Manslaughter, Count XII: Aggravated Assault, Count XIV: Aiding the Escape of an Inmate.
Information presented by prosecutor, charging Van Poyck with Attempted First-Degree Murder.
11/15/88 The jury returned guilty verdicts on all counts of the indictment and information.
11/18/88 By a vote of 11-1, the jury recommended the death penalty.
12/21/88 Van Poyck was sentenced as follows: Count I: First-Degree Murder – Death, Count II: Armed Robbery – Life, Counts VI-XI: Attempted Manslaughter – 15 years, Count XII: Aggravated Assault – 5 years, Count XIV: Aiding the Escape of an Inmate – 15 years, Information: Life imprisonment.
Florida Supreme Court – Direct Appeal
564 So. 2d 1066
02/06/89 Direct appeal filed.
07/05/90 FSC affirmed conviction and sentence.
09/04/90 Rehearing denied.
10/04/90 Mandate issued.
United States Supreme Court – Petition for Writ of Certiorari
499 U.S. 932
01/15/91 Petition filed.
03/18/91 USSC denied petition.
Circuit Court – 3.850 Motion
12/01/92 Motion filed.
07/08/94 Trial court denied motion.
Florida Supreme Court – 3.850 Motion Appeal
694 So. 2d 686
09/07/94 Appeal filed.
03/27/97 FSC affirmed denial of motion.
05/27/97 Rehearing denied.
06/26/97 Mandate issued.
United States Supreme Court – Petition for Writ of Certiorari
522 U.S. 856
05/27/97 Petition filed.
10/06/97 USSC denied petition.
Florida Supreme Court – Petition for Writ of Habeas Corpus
715 So. 2d 930
02/10/97 Petition filed.
05/14/98 FSC denied petition.
08/07/98 Rehearing denied.
United States Supreme Court – Petition for Writ of Certiorari
522 U.S. 995
08/25/97 Petition filed.
12/01/97 USSC denied petition.
Florida Supreme Court – Petition for Writ of Habeas Corpus
728 So. 2d 206
10/28/98 Petition filed.
12/01/98 FSC denied petition.
United States Supreme Court – Petition for Writ of Certiorari
526 U.S. 1018
01/13/99 Petition filed.
03/22/99 USSC denied petition.
United States District Court, Southern District – Petition for Writ of Habeas Corpus
02/12/99 Petition filed.
09/20/99 USDC denied petition.
United States Court of Appeals, 11th Circuit – Habeas Corpus Appeal
290 F. 3d 1318
12/27/99 Appeal filed.
05/09/02 USCA affirmed denial of petition.
United States Supreme Court – Petition for Writ of Certiorari
537 U.S. 812
02/07/01 Petition filed.
10/07/02 USSC denied petition.
United States Supreme Court – Petition for Writ of Certiorari
537 U.S. 1105
09/19/02 Petition filed.
01/13/03 USSC denied petition.
Florida Supreme Court – Petition for Writ of Habeas Corpus
860 So. 2d 980
12/20/02 Petition filed.
08/20/03 FSC denied petition.
10/31/03 Rehearing denied.
Circuit Court – 3.853 Motion
CC #87-6736 CF
09/30/03 Motion filed.
02/24/04 Motion denied.
U.S. Supreme Court – Petition for Writ of Certiorari
541 U.S. 974
01/29/04 Petition filed
04/05/04 Petition denied.
Florida Supreme Court – 3.853 Motion Appeal
908 So. 2d 326
04/26/04 Appeal filed.
05/19/05 FSC affirmed the denial.
08/01/05 Mandate issued.
Circuit Court – 3.850 Motion
04/26/05 Motion filed.
06/23/05 Motion denied.
Florida Supreme Court – 3.850 Motion Appeal
961 So.2d 220 (2007)
08/15/05 Appeal filed.
05/03/07 FSC affirmed denial of motion.
07/16/07 Rehearing denied.
08/02/07 Mandate issued.
United States Supreme Court – Petition for Writ of Certiorari
126 S. Ct. 1570
12/05/05 Petition filed.
03/20/06 Petition denied.
Florida Supreme Court – Petition for Writ of Habeas Corpus
954 So.2d 28 (2007)
01/11/07 Petition filed.
03/14/07 Petition denied.
United States Supreme Court – Petition for Writ of Certiorari
128 S.Ct. 897
10/15/07 Petition filed.
01/07/08 Petition denied.
State Circuit Court – 3.851 Motion
12/6/10 Motion filed.
03/03/11 Motion denied.
Florida Supreme Court – 3.851 Appeal
04/13/11 Appeal filed.
Clemency Hearing: 12/03/91 Clemency hearing held and denied.
Factors Contributing to the Delay in Imposition of Sentence:The delay in the execution of the sentence is due to Van Poyck’s multiple filings of Habeas appeals and Certiorari petitions at the state and federal level.
Van Poyck filed a Direct Appeal in the Florida Supreme Court on 02/06/89. He appealed his multiple convictions and sentences, including the death sentence, from 12/21/88. Van Poyck raised six issues from the guilt phase of the trial and fifteen issues from the penalty phase of his trial. The Florida Supreme Court affirmed the convictions and sentence of death on 07/05/90.
Van Poyck filed a Petition for Writ of Certiorari in the United States Supreme Court on 01/15/91, which was denied on 03/18/91.
Van Poyck filed a 3.850 Motion in the Circuit Court on 12/01/92, which was denied on 07/08/94.
Van Poyck filed a 3.850 Motion Appeal in the Florida Supreme Court on 09/07/94. He contended ineffective assistance of counsel. The Florida Supreme Court affirmed the trial court’s denial of the 3.850 Motion on 03/27/97.
Van Poyck filed a Petition for Writ of Certiorari in the United States Supreme Court on 05/27/97, which was denied on 10/06/97.
Van Poyck filed a Petition for Writ of Habeas Corpus in the Florida Supreme Court on 02/10/97. He argued ineffective assistance of counsel, that error occurred in the weighing of invalid aggravating circumstances during the penalty phase of the trial, and that he was charged and convicted of criminal offenses that did not exist as a matter of law (attempted first degree murder). The Florida Supreme Court denied the petition on 05/14/98.
Van Poyck filed a Petition for Writ of Certiorari in the United States Supreme Court on 08/25/97, which was denied on 12/01/97.
Van Poyck filed a Petition for Writ of Habeas Corpus in the Florida Supreme Court on 10/28/98. The Florida Supreme Court denied the petition without a published opinion on 12/01/98.
Van Poyck filed a Petition for Writ of Certiorari in the United States Supreme Court on 01/13/99, which was denied on 03/22/99.
Van Poyck filed a Petition for Writ of Habeas Corpus in the United States District Court on 02/12/99, which was denied on 09/20/99.
Van Poyck filed an Appeal in the United States Court of Appeals on 12/27/99. The Appeal raised issues of ineffective assistance of counsel and Brady claims. On 05/09/02, the United States Court of Appeals affirmed the United States District Court’s denial of the Habeas Petition.
Van Poyck filed a Petition for Writ of Certiorari in the U.S. Supreme Court on 02/07/01, which was denied on 10/07/02.
Van Poyck filed a Petition for Writ of Certiorari in the U.S. Supreme Court on 09/19/02, which was denied on 01/13/03.
Van Poyck filed a Petition for Writ of Habeas Corpus in the Florida Supreme Court on 12/20/02. He raised issues regarding the U.S. Supreme Court case Ring v. Arizona. On 08/20/03, the Petition was denied without a published opinion. Rehearing was denied on 10/31/03.
Van Poyck filed a 3.853 Motion in the Circuit Court on 09/30/03. The Motion was denied on 02/24/04.
Van Poyck filed a Petition for Writ of Certiorari in the U.S. Supreme Court on 01/29/04. The U.S. Supreme Court denied the petition on 04/05/04.
Van Poyck filed a 3.853 Motion Appeal in the Florida Supreme Court on 04/26/04. On 05/19/05, the Florida Supreme Court affirmed the circuit court’s denial of Van Poyck’s motion for postconviction DNA testing.
On 04/26/05, Van Poyck filed a 3.850 Motion in the Circuit Court. The motion was denied on 06/23/05.
On 08/15/05, Van Poyck filed a 3.850 Motion Appeal in the Florida Supreme Court. On 05/03/07, the FSC affirmed the denial of the motion. The Florida Supreme Court issued a mandate in this case on 08/02/07.
Van Poyck filed a Petition for Writ of Certiorari in the U.S. Supreme Court on 12/05/05 that was denied on 03/20/06.
Van Poyck filed a Petition for Writ of Habeas Corpus in the Florida Supreme Court on 01/11/07 that was denied on 03/14/07. Van Poyck’s Motion for Rehearing was denied on 07/16/07.
On 10/15/07, Van Poyck filed a Petition for Writ of Certiorari in the U.S. Supreme Court. This petition was denied 01/07/08.
Van Poyck filed a 3.851 Motion in the Circuit Court on 12/06/10, and it was denied on 03/03/11.
On 04/13/11, Van Poyck filed a 3.851 Appeal in the Florida Supreme Court. This case is currently pending.
Van Poyck v. State, 564 So.2d 1066 (Fla. 1990). (Direct Appeal)
Defendant was convicted in the Circuit Court, Palm Beach County, Michael D. Miller, J., of first-degree murder, attempted first-degree murder, aiding in attempted escape, aggravated assault, and six counts of attempted manslaughter and death sentence was imposed. Defendant appealed. The Supreme Court held that: (1) defendant was not entitled to severance for trial of charges that arose out of single criminal episode which began with unsuccessful attempt to free prisoner and concluded in car chase; (2) evidence established that defendant was instigator of and primary participant in unsuccessful attempt to free prisoner and associated fatal shooting of corrections officer, and death sentence was accordingly proportional, although defendant claimed that he was minor actor and did not have culpable mental state to kill; and (3) although pro-death jurors should have been excused for cause, any error in failing to excuse jurors for cause was moot, where they were subsequently excused for personal reasons. Affirmed.
William Van Poyck appeals his convictions for first-degree murder, attempted first-degree murder, aiding in an attempted escape, aggravated assault, and six counts of attempted manslaughter and his sentence of death imposed for the first-degree murder conviction. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm Van Poyck's convictions and sentences.
The record establishes that on June 24, 1987, corrections officers Steven Turner and Fred Griffis transported James O'Brien, a state prison inmate, in a van from Glades Correctional Institute to a dermatologist's office for an examination. Griffis, who was not armed, drove the van while Turner watched O'Brien, who was secured in a caged area behind Griffis. After Griffis pulled the van into an alley behind the doctor's office, Turner looked down for his paperwork. Upon looking up, he saw a person, whom he later identified as Van Poyck, aiming a pistol at his head. Van Poyck ordered Turner to exit the van. At the same time, Frank Valdez, an accomplice of Van Poyck's, went to the driver's side of the van. Turner testified that Van Poyck took his gun, ordered him to get under the van, and kicked him while he was attempting to comply with Van Poyck's order. He testified that, while under the van, he saw Griffis exit the van; he noticed another person forcing Griffis to the back of the van; and, while noticing two sets of feet in close proximity to the rear of the van, he heard a series of shots and saw Griffis fall to the ground. Turner further stated that Van Poyck had stopped kicking him when the gunfire started, but noted that he did not know where Van Poyck was at the time of the shooting. Griffis was shot three times, once in the head and twice in the chest. Expert testimony indicated that the shot to the head was fired with the barrel of the gun placed against Griffis' head and that each of the wounds would have been fatal. It was also determined that the murder weapon was a Hungarian Interarms nine millimeter semiautomatic pistol.
After Griffis was shot, Turner was forced to get up from under the van and look for the keys. Upon realizing that Turner did not have them, Valdez fired numerous shots at a padlock on the van in an attempt to free O'Brien. One of the shots ricocheted off of the van and struck Turner, causing him minor injuries. Turner testified that at around this time Van Poyck aimed the Hungarian Interarms semiautomatic nine millimeter pistol at him and pulled the trigger. Although no bullet was fired, Turner stated that he heard the gun click. Turner then fled the scene when Van Poyck turned his attention to Valdez, who was smashing one of the windows on the van. After Van Poyck noticed that two cars had just driven into the alley, he and Valdez approached the cars and Van Poyck shattered the windshield of one of the cars with the butt of a gun. Van Poyck and Valdez then ran to a Cadillac parked in an adjacent parking lot and departed from the scene. A police officer, who arrived at the scene and witnessed the two men leaving, radioed for help and a chase followed. During the chase, Van Poyck leaned out of the car window and fired numerous shots at the police cars in pursuit, hitting three of them.
Valdez eventually lost control of the Cadillac and the car crashed into a tree. Van Poyck and Valdez were immediately taken into custody and four pistols were recovered from the car: a Hungarian Interarms nine millimeter semiautomatic pistol, a Sig Sauer nine millimeter semiautomatic pistol, a Starr .22 caliber semiautomatic pistol, and Turner's Smith and Wesson .38 caliber service revolver. Van Poyck, testifying in his own behalf, denied that he shot Griffis and stated that, while kicking Turner, he heard the gunshots and saw Griffis fall to the ground. He did, however, acknowledge that he planned the operation and recruited Valdez to assist him in his plan. Additionally, he stated that they took three guns with them.
The jury found Van Poyck guilty of first-degree murder, six counts of attempted manslaughter, armed robbery with a firearm, aggravated assault, and aiding in an attempted escape. With regard to the first-degree murder charge, the jury was given a special verdict form which contained blanks for “premeditated murder,” “felony murder,” and “both.” The jury returned the verdict form with “felony murder” and “both” checked and “premeditated murder” left blank.
In the penalty phase, the state presented Van Poyck's parole officer who testified that Van Poyck was on parole at the time of the incident and that he had three previous convictions, two for robbery and one for burglary. Other witnesses for the state included victims of these offenses. Van Poyck presented five witnesses in mitigation, including himself. A nurse from the Palm Beach County jail stated that he helped other inmates in various ways. His brother, who was also in prison, testified about their home life, explaining that their father was frequently away from home on business and their mother had passed away when Van Poyck was young. Van Poyck's aunt testified that for a period of time the family lived with a housekeeper, who appeared to be strange and unstable. Van Poyck's stepmother testified about his family situation, noting that his brother and sister had juvenile records. She also indicated that Van Poyck felt remorse for his actions. Finally, Van Poyck testified in his own behalf, taking responsibility for the fact that Griffis was killed and expressing remorse for his actions.
By an eleven-to-one vote, the jury recommended the death sentence for the first-degree murder conviction. The trial judge imposed the death sentence and found the following four aggravating circumstances: (1) that the crime was committed while Van Poyck was under a sentence of imprisonment in that he was on parole when he committed the act; (2) that the crime was committed for the purpose of effecting an escape from custody; (3) that Van Poyck knowingly created a great risk of death to many persons; and (4) that Van Poyck was previously convicted of another felony involving the use or threat of violence to some person. In finding insufficient mitigating evidence to override the above aggravating factors, the trial judge stated in his order:
The defendant presented evidence which attempted to show that he was under the influence of another person, to wit: his brother and/or Mr. O'Brien. This court finds that the evidence was totally lacking to establish in any way that mitigating factor based upon the fact that he clearly had had no contact with his brother for numerous years other than by infrequent letter-writing and that he had in fact not seen Mr. O'Brien for a long period of time. Further, the defendant admitted on the stand that he was operating during the commission of this offense as a person responsible for his own acts and with knowledge of what he was doing.
The judge also rejected evidence of a difficult childhood: The only other potential mitigating circumstances for which evidence was presented was that ... Van Poyck's mother died when he was approximately eighteen (18) months of age. However, it was shown that he was subsequently raised in a good family and by people that cared for him. Further, the court would note that Mr. Van Poyck is an individual who is quite intelligent and very knowledgeable as to the law and that he himself admits that he was well aware of the law including felony murder, that he himself was the individual who planned this operation. The trial court also imposed upon Van Poyck six fifteen-year sentences for the six counts of attempted manslaughter, five years with a mandatory minimum of three for aggravated assault, fifteen years for aiding in an attempted escape, and life imprisonment for attempted first-degree murder. The trial judge stated that each of the above sentences should run consecutively.
Van Poyck raises the following six issues in the guilt phase of this appeal: (1) the trial court erred in not severing the multiple offenses in this case; (2) the evidence was insufficient to support a conviction for first-degree premeditated murder; (3) the evidence was insufficient to support a conviction for attempted first-degree murder; (4) the evidence was insufficient to support a conviction for aiding in an attempted escape; (5) the evidence was insufficient to support the convictions of six counts of attempted manslaughter; and (6) the convictions in issue (5) violated the rule of lenity.
With reference to the first claim regarding severance, all of the crimes arose out of a single criminal episode, which began with the unsuccessful attempt to free a prisoner and concluded in a police chase. We find that the trial court's denial of Van Poyck's motion to sever was consistent with Florida Rules of Criminal Procedure 3.150(a) and 3.152(a). Bundy v. State, 455 So.2d 330 (Fla.1984), cert. denied, 476 U.S. 1109, 106 S.Ct. 1958, 90 L.Ed.2d 366 (1986); Spivey v. State, 533 So.2d 306 (Fla. 1st DCA 1988).
With regard to point two, we agree with Van Poyck that the evidence is insufficient to establish first-degree premeditated murder. The state's evidence was conflicting as to where Van Poyck was at the time of the killing. We note that the trial judge, in his sentencing order, was not sure of Van Poyck's whereabouts: “Van Poyck may have in fact been the individual who pulled the trigger and shot Fred Griffis.” (Emphasis added.) Although the evidence was insufficient to establish first-degree premeditated murder, we find that the evidence was clearly sufficient to convict him of first-degree felony murder. While this finding does not affect Van Poyck's guilt, it is a factor that should be considered in determining the appropriate sentence.
The remaining issues concerning the sufficiency of the evidence and the violation of the rule of lenity are without merit. The evidence in this record clearly sustains those convictions.
Van Poyck raises fifteen issues in the penalty phase: (1) the trial court failed to properly consider the mitigating evidence; (2) the aggravating circumstance of knowingly creating a great risk of death to many persons is vague, overbroad, and capricious; (3) the trial court erroneously found the aggravating circumstance of knowingly creating a great risk to many persons; (4) the trial court erred in denying Van Poyck's request for limiting jury instructions on the aggravating circumstance of knowingly creating a great risk of death to many persons; (5) the trial court failed to direct the jury to make a mandatory factual determination concerning Van Poyck's participation as prescribed by the United States Supreme Court's decisions in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), and Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); (6) the trial court failed to make the required factual findings required by Tison and Enmund in its sentencing order; (7) the trial court violated Van Poyck's right to a fair trial by refusing to excuse pro-death jurors and attempting to exclude jurors opposed to the death penalty; (8) Florida's death penalty statute is unconstitutional as applied to this case; (9) the trial court gave Van Poyck insufficient time to obtain adequate medical examinations; (10) the trial court erred with regard to sequestering the jury; (11) the trial court improperly considered Van Poyck's prior convictions; (12) the trial court erred in finding the existence of an aggravating circumstance which duplicated an essential element of felony murder; (13) Van Poyck was denied his right to effective assistance of counsel during the penalty phase of the trial; (14) the death sentence is not proportional under these facts; and (15) Florida's death penalty statute is unconstitutional. After fully considering these issues in light of the record in this cause, we find no error which requires a new sentencing proceeding.
We find no merit in Van Poyck's claims that he was a minor actor and did not have the culpable mental state to kill. In DuBoise v. State, 520 So.2d 260 (Fla.1988), we reiterated the established principle in Florida that the death penalty is appropriate even when the defendant is not the triggerman FN* and discussed proportionate punishment, stating: FN* See, e.g., Copeland v. Wainwright, 505 So.2d 425 (Fla.), vacated on other grounds, 484 U.S. 807, 108 S.Ct. 55, 98 L.Ed.2d 19 (1987); Jackson v. State, 502 So.2d 409 (Fla.1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3198, 96 L.Ed.2d 686 (1987).
In Tison the Court stated that Enmund covered two types of cases that occur at opposite ends of the felony-murder spectrum, i.e., “the minor actor in an armed robbery, not on the scene, who neither intended to kill nor was found to have had any culpable mental state” and “the felony murderer who actually killed, attempted to kill, or intended to kill.” The Tison brothers, however, presented “the intermediate case of the defendant whose participation is major and whose mental state is one of reckless indifference to the value of human life.” The Court recognized that the majority of American jurisdictions which provide for capital punishment “specifically authorize the death penalty in a felony-murder case where, though the defendant's mental state fell short of intent to kill, the defendant was the major actor in a felony in which he knew death was highly likely to occur,” and that “substantial participation in a violent felony under circumstances likely to result in the loss of innocent human life may justify the death penalty even absent an ‘intent to kill.’ ” Commenting that focusing narrowly on the question of intent to kill is an unsatisfactory method of determining culpability, the Court held “that major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” Id. at 265–66 (citations omitted, emphasis added) (quoting Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987)). Although the record does not establish that Van Poyck was the triggerman, it does establish that he was the instigator and the primary participant in this crime. He and Valdez arrived at the scene “armed to the teeth.” Since there is no question that Van Poyck played the major role in this felony murder and that he knew lethal force could be used, we find that the death sentence is proportional.
We note that, although the pro-death jurors should have been excused for cause, the trial judge subsequently excused them for personal reasons. Consequently, Van Poyck was not required to exercise any peremptory challenges with regard to those jurors and that issue is moot.
We find that none of the other claims merit discussion. Further, we conclude that each of the aggravating circumstances found by the trial judge was properly established in this record and that the trial judge could properly conclude that the aggravating circumstances outweighed the mitigating evidence in this cause. Accordingly, we affirm each of Van Poyck's convictions and sentences. It is so ordered. SHAW, C.J., and OVERTON, McDONALD, EHRLICH, BARKETT, GRIMES and KOGAN, JJ., concur.
Van Poyck v. State, 694 So.2d 686 (Fla. 1997). (PCR)
After defendant's convictions for murder, attempted murder, aiding in attempted escape, aggravated assault and attempted manslaughter was affirmed on direct appeal, 564 So.2d 1066, defendant petitioned for postconviction relief. The Circuit Court, Palm Beach County, Walter N. Colbath, Jr., J., denied petition and defendant appealed. The Supreme Court held that: (1) defendant was not denied effective assistance of counsel at penalty phase or guilt phase of trial; and (2) prosecution's suppression of note in state attorney's file from defendant during discovery did not constitute Brady violation. Affirmed. Anstead, J., filed opinion concurring in part and dissenting in part in which Kogan, C.J., and Shaw, J., concurred.
William Van Poyck appeals an order entered pursuant to Florida Rule of Criminal Procedure 3.850, in which the trial court denied all relief. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons expressed, we affirm the denial of Van Poyck's motion for postconviction relief.
The facts of this case are detailed in our decision, reported in Van Poyck v. State, 564 So.2d 1066 (Fla.1990), affirming Van Poyck's convictions and sentences. In summary, the relevant events unfolded as follows. On June 24, 1987, state inmate James O'Brien was transported to the office of a dermatologist by two corrections officers. Officer Griffis drove the van and was unarmed. Officer Turner was responsible for watching O'Brien, the two separated by a cage. Upon arriving at the dermatologist's office, Officer Turner turned his eyes downward looking for paperwork. When Turner looked back up, he saw Van Poyck, who had approached the van, aiming a gun at his head. Officer Turner was forced out of the van and ordered to crawl underneath the vehicle. While Officer Turner was getting under the van, Frank Valdez, one of Van Poyck's accomplices, was approaching the driver's side of the van. Officer Turner, from underneath the van, saw Officer Griffis forced out of the van and taken to the back of the vehicle. Then, while noticing two sets of feet near the back of the van, he heard the gunshots that killed Officer Griffis. Officer Turner did say, however, that he was unable to testify as to Van Poyck's location when the shooting occurred. Officer Griffis was shot three times, once with the barrel of the gun placed to his head.
Van Poyck was tried and convicted for first-degree murder, attempted first-degree murder, aiding in an attempted escape, aggravated assault, and six counts of attempted manslaughter. By a vote of eleven to one, the jury recommended that the penalty of death be imposed. The trial judge followed the jury's recommendation and sentenced Van Poyck to death. On direct appeal, Van Poyck raised six guilt-phase issues and fifteen penalty-phase issues. This Court, in our initial opinion, found the evidence could not sustain the conviction of premeditated murder but upheld the first-degree murder conviction on the theory of felony murder. After that pronouncement, we rejected or found harmless all other claims and affirmed Van Poyck's convictions and sentences.
Van Poyck then filed a motion to vacate his convictions and death sentence, pursuant to rule 3.850, on December 8, 1992. A substantial evidentiary hearing was held on multiple issues after which the lower court denied all relief. In his appeal of that order, Van Poyck raises sixteen claims. We find that none warrant relief. Accordingly, we affirm the lower court's order.
Ineffective Assistance of Penalty-Phase Counsel
Van Poyck's first two claims center around the representation he received at the penalty-phase proceeding. He argues that his counsel was ineffective. We disagree. Further, he asserts that the lower court inappropriately limited his ability to prove the ineffective nature of his penalty-phase representation by refusing to reopen the evidentiary hearing or to supplement the record when an affidavit became available after the close of the proceedings. We also find no merit in this assertion.
Van Poyck's claim of ineffective penalty-phase representation is based on the allegation that his trial counsel, Cary Klein, failed to adequately investigate mitigating evidence of Van Poyck's problematic life and mental-health histories. The two-prong standard for evaluating an ineffective assistance of counsel claim, set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), requires: (1) that the defendant first demonstrate deficient performance by counsel; and (2) that the defendant then demonstrate that such deficient performance caused prejudice. Based on the record in this case, Van Poyck has not demonstrated deficient performance by his counsel.
At the outset, it must be understood that Van Poyck argues two distinct areas of deficiency. He argues that Klein should have investigated, discovered, and presented both his life history and his mental-health history. As to his claim regarding deficient investigation and presentation of mental-health evidence, we find that Klein had clear tactical reasons for avoiding such a line of argument. The following testimony from Klein at the evidentiary hearing below illuminates Klein's tactical considerations:
Q: [By prosecutor Geesey]: During the course of your representation of this defendant, you've indicated that you obtained his jail records. Were you referring to Department of Corrections records? A: Yes. Q: When did you obtain those records and- A: I don't recall exactly the date. It was fairly early on in the representation. I would say sometime by late fall we had gotten his DOC records or sometime by the winter. Q: Why did you want his DOC records? A: We sent away for his Department of Correction records because he had spent the last 15 or so years in the Department of Corrections. From the time he was 17 or so until maybe 6 months before the crime happened, that's where all of his time was spent. The Department of Corrections also had all of his mental health records from the time he was in DOC so we would need those, also. One of the things we were looking for, and this was a suggestion of Mr. Van Poyck's, if he had a decent prison record or there were some people willing to testify that he could be a model prisoner, that might be a mitigating circumstance, a jury believing that he could be a model prisoner in the prison system might be willing to let him spend the rest of his life in the prison system so we sent away for those prison records. The prison records also had his prior crimes, prior convictions, some of the judgments in them. It would have a lot of things we would need to help us prepare primarily for phase two but even, to some degree, for phase one. If we decided to have him testify, we'd need to know what convictions he had. That would be in Department of Corrections records.
Q: Obviously well may have. Have you reviewed your time sheets and your billing from back in '87 and '88 recently? A: No, I haven't, not since I submitted the bill on the case which was probably 4 to 6 months after the trial was over. Q: Did you have any recollection of approximately how many hours you spent reviewing those DOC records? A: I could only estimate. It had to take at least 10 hours. It took the better part of two complete days to get through most of the records and that's even with skimming some of them. Q: And in those records, you were looking for what type of evidence, specifically? A: I was looking for, specifically, mental health records. I wanted to see what happened in the mid '70's, why he was-why he was sent to Chattahootchee, what the diagnosis was, the prognosis, why he came back. I was looking also, very specifically, for whether I could get anything out of his prison records that would be mitigating in terms of him being a model prisoner, a good prisoner. Specifically, that is really the two specific things we were looking for. Q: First of all, did you find anything in those records that would give you evidence that he was a model prisoner and that you could perhaps use as a non statutory mitigating circumstance? A: No, I didn't find anything that was really helpful in that regard. Q: And, in fact, was it fairly-how would you describe the number of disciplinary reports and the type of offenses he committed for those? A: Well, he had several D.R.'s. He had quite a number of them. Obviously, he had done a lot of fighting in prison. Q: Were there any weapon offenses for the D.R.'s? A: I think there were one or two weapon offenses. He had had some escapes, also. Q: Did you see anything in those records that you could use to establish a nonstatutory mitigating circumstance? A: At one point I thought that I could take at least the 5 years of his prison record and use some of that because it got progressively better as he was there. The first 10 years or so he was in prison, it was horrible. As I guess he learned how to play the system, it got better but even in the last 5 years, I think he got one or two D.R.'s. I didn't think we could use any of that without having the previous 10 years come in from the State to make it look even worse than it was.
Q: You felt that it couldn't be done without opening the door? A: Right. .... Q: From your review of those records, did you believe that there was anything in there that would be of assistance in a penalty phase? A: I thought the fact that he had been in Chattahootchee and the previous mental health encounters would be of some mitigating or might be of some mitigating use in phase two. Q: At some point in time was there a decision made not to use that evidence? A: Yes. Q: When was that decision made? A: Well, initially, the decision was made. Although it wasn't hard and fast, I was inclined not to use them. When I spoke to Mr. Van Poyck he explained to me that he had faked some of the brief mental illness. He faked the light bulb incident and we had a good laugh over that. And I probably would have used it, notwithstanding, if I had gotten some help later on from some mental health experts that perhaps he was, notwithstanding what he told me, he was still mentally ill.
Q: When did the defendant tell you that he had faked some of his mental health history and faked the incident with the light bulb? A: Well, I'm trying to remember the first time it came up. I think the first time it came up I'm not sure Mike [co-counsel Dubiner] was even appointed. Actually, I think he was appointed, which meant it was probably the summer of '88. It was probably either late spring or summer of '88. After Mike Dubiner was appointed, we had a conversation in the jail. He had told me that he denied that he was really sick in the '70's and he told me he had like made it all up to get out of the prison population to go to Chattahoochee. Q: When the defendant told you this, did you question in your own mind whether or not he was being truthful with you? A: Initially, no, I don't think I really questioned it. I think I accepted what he was telling me. He went into detail. I mean, he wasn't delusional, at the time. He had a pretty good recall of most of the facts and fairly decent sense of humor about the incident. He understood the circumstances, at the present time. What I did have is doubts, not about his truthfulness but I had doubts about why he was telling me that. Q: Were you concerned about that? A: Yes, I was pretty- Q: Let's go specifically into what the defendant told you in the summer of '88 about his faking. First of all, did the defendant say anything about any preparation before he began faking this mental illness? A: He told me that he had gone to the prison library and looked up some books on schizophrenia and mental illness, had done extensive reading on it in preparation for this charade. Q: How long did he tell you that he had spent preparing and reading and studying for all of this? A: He didn't tell me how long. I don't recall if he told me specifically how long but I got the impression he was fairly well-if he was telling me the truth, that he had prepared pretty well for it because he fooled the doctors, obviously, at Chattahoochee at Florida State Hospital. Q: Did the defendant say how he was able to obtain these materials, read and study these materials? Did that seem consistent with his cognitive ability that he demonstrated to you in his legal research?
A: It did. It was probably one of the reasons I probably believed him without much doubt, yes. Q: And what did he say, specifically, about how he faked the mental history? A: I think he explained to me how he made it appear that he was chewing on this light bulb. Q: What did the defendant say about that? A: I think he said he put something in his mouth that made a crunch or something like that and they were convinced he was eating a light bulb. Q: Did he have light bulb parts? A: Yes, he was like spitting out the little metal pieces. He didn't go into great detail about it but it was enough to convince me that he had pulled a little sleight of hand on them. .... Q. Did you want to open the door to any evidence of the defendant's escape or attempted escape while incarcerated on other charges earlier in his life? A. No. Q. Did you think that would have a detrimental effect in seeking a life recommendation from the jury? A. Clearly that would've had a detrimental effect. We did not want the jury to know this was not a person who could be trusted for life in prison. Q. Earlier on defense counsel showed you State's Exhibit Number 2 and that it was a report of the defendant in 1977 stating that he had expected to end up on death row someday and he would not hesitate to destroy a snake in a brown shirt. Is that information that you would have wanted to come in front of a jury in a penalty phase? A. No, I don't think so. Q. Would you want to do anything to call attention to that document on the part of the prosecutor? A. No. Q. Also, in cross examination, the defense counsel asked you about the five years aggravation in the defendant's parole in 1980 because of his mental health history. That took place in 1980; correct? A. Yes, and it was litigated for a number of years thereafter. Q. After that occurred in 1980, was there any additional evidence of mental disturbance on the part of the defendant? A. No. Q. He was cured from that point on?
A. As far as I know he was mentally healthy for the remainder of the 80's. Q. Concerning the issue of voluntary intoxication, was that successful for the codefendant? A. No. Q. Did you think it was a viable defense for your client? A. No. (Emphasis added.)
This extended excerpt demonstrates that Klein had quite adequate reasons for limiting his use of the prison records and thereby limiting the presentation of Van Poyck's mental-health history. Further, Klein testified that Dr. Villalobos, after examining Van Poyck prior to the penalty phase, reported that Van Poyck was a sociopath. Indeed, Klein testified that Dr. Villalobos asked not to be called as a witness because his findings would not be helpful. This information only strengthens Klein's tactical choice. While we acknowledge that Klein's co-counsel Dubiner testified that they were unprepared for the penalty-phase proceeding and, in his opinion, should have spent more time preparing mental-health evidence for presentation, we will not second-guess Klein's clearly tactical choice. See Cherry v. State, 659 So.2d 1069, 1073 (Fla.1995)(concluding that present counsel's disagreements as to strategy does not necessarily satisfy Strickland because standard is not how present counsel would have, in hindsight, proceeded).
As to Klein's choices regarding the presentation of Van Poyck's life history during the penalty-phase proceeding, we likewise find no error. Evidence of Van Poyck's life history was adequately presented by Klein at the penalty-phase proceeding.FN1 Indeed, the jury was actually aware of most aspects of Van Poyck's life that he now argues should have been presented. Klein testified to the following in the evidentiary hearing below: FN1. It must be noted that Van Poyck blurs the line between his life history and his mental-health history in this portion of his brief. To the extent that he reargues that Klein was deficient for failing to adequately investigate and present Van Poyck's mental-health history, we ignore such argument as it has been resolved above.
Q: Did you ask the defendant any questions to try and find out what you could do in a penalty phase? A: We discussed it constantly, constantly. He was very up on it. Q: What kind of questions? A: I asked him who I could contact, who I could call, who were your friends when you were kids? I didn't have any. Tell me about your family. Well, the only one still in contact is my stepmother and my brother, so on and so forth. I don't mean to tell you that he was directing what to do but he had a tremendous input, being intelligent and knowing the mitigating circumstances, both statutory and nonstatutory. We considered like a list of 18-I think it was 15, 16, 18 nonstatutory mitigating circumstances. In fact, I put them up in closing argument in phase two. I must have listed 12 or 13 nonstatutory [circumstances] that we could not actually prove other than the couple that we tried to prove that I suspected were there but none could we show. Q: Did you ask the defendant if he had ever been raped? A: We talked about that. He told me that he had not. He didn't have that many problems in jail; that he was able to take care of himself and they generally left him alone.
At the penalty-phase proceeding, defense testimony was presented by Deborah Chisholm, Jeffrey Van Poyck, Anne Van Poyck, Lee Van Poyck, and by Van Poyck himself. Chisholm was a nurse at the Palm Beach County Jail when she met Van Poyck. She testified that Van Poyck was a “very caring person, very friendly, very loving and very intelligent and somebody that I really enjoyed talking to.” Further, she testified that Van Poyck had indicated to her that he did not kill Griffis and that he was sorry that the shooting had happened. Jeffrey Van Poyck is Van Poyck's brother. Klein testified that he made the tactical decision to call Jeffrey Van Poyck for the following reason: One of the reasons why I called Jeff, I wanted Jeff to testify before the jury because I wanted these people to see that this was his only role model from the time he was a little baby. Jeff, who was his brother, I think was serving, at the time, I think a 40 year prison sentence for armed robbery.
You had to be there to listen to this guy's testimony. I think he was the most cold and chilling witness I had ever seen on the witness stand. As it turned out, I think the jury hated this guy, couldn't stand him. But I felt like we had to call him because if I had tried to explain to [the] jury what kind of role model or influence he was, they wouldn't have believed me. I thought they had to see Jeff for themselves to understand how chilling, cold an influence this person would've had on Bill. But again, we had no psychological underpinning for it.
Jeffrey Van Poyck testified to the facts surrounding his mother's death. The defendant was very young when his mother passed away. Jeffrey Van Poyck then testified that his father hired Ms. Dano to take care of both the house and the children (Jeffrey, William, and Lisa). She was a strict disciplinarian. Indeed, she beat the three children until their father fired her at gunpoint. At that point, Jeffrey Van Poyck testified, Aunt Phyllis moved into the house and cared for the three children. She remained as caretaker until the elder Van Poyck (their father) married Lee Hightower. Finally, Jeffrey Van Poyck extensively testified to his life in crime (500 burglaries, he claimed, prior to his first arrest) and the influence such an example could have had on the defendant.
Anne Van Poyck was the defendant's aunt. She gave insight into Aunt Phyllis. First, she testified that Phyllis may not have been the woman's real name. Second, she testified that the children's natural mother was named Phyllis. Third, she revealed that Aunt Phyllis told the children that she was their real mother. Finally, her testimony was that she was not impressed with Aunt Phyllis's ability as a surrogate mother and that she considered Aunt Phyllis to be an unstable person.
Lee Hightower Van Poyck is the defendant's stepmother. Her testimony provided insight into the personality of the defendant's father, Walter Van Poyck. She stated: Well, first of all, he was a very good man. He was a very kind man, a very caring man. As you probably know, he was disabled. He lost his leg in World War II in the Holland invasion. Consequently, he was not with the children as active as an ordinary father would be. He was unable to do certain things with the children, but he was a good father. .... Let me say this: Walt Van Poyck loved his family. He has difficulty demonstrating that love. He was not demonstrative but he was kind and he was gentle and he was caring, but he wasn't outgoing with his affection. Lee Hightower Van Poyck also verified that Aunt Phyllis had grown up being called Amy but changed her name to Phyllis at some point. She also thought that Aunt Phyllis was unstable. Finally, she opined that Jeffrey Van Poyck had been a bad influence on the defendant.
Notably, defendant Van Poyck then testified to the following: Q Mr. Van Poyck, you heard your mother testify today and you heard your brother testify about some remorse that you showed in writing some letters. If you would forget for a second whatever letters you may have written, Mr. Van Poyck, how do you feel about the-about your actions regarding the incident of June 24, 1987? A Well, I take responsibility for the fact that-if I had not made a decision to free James O'Brien, Mr. Griffis would still be alive. Q Mr. Van Poyck, you heard testimony about your brother, Jeffrey, and his influence on you. You heard Jeffrey testify. Is it Jeffrey's fault that you are the way you are today? A I can't say that, no, sir. Q Why not? A I happen to believe that people should be responsible for their own actions. Q Do you consider yourself a fairly intelligent person? A I would hope so. (Emphasis added.)
Clearly, Klein did an adequate job of presenting Van Poyck's life history. In sum, we conclude that Klein's performance was not deficient in presenting Van Poyck's mental-health and life histories. Indeed, Klein tactically avoided presenting (or opening the door to the presentation of) events severely disadvantageous to Van Poyck's cause. Accordingly, we find no merit to the claim that Van Poyck received ineffective assistance of counsel at the penalty phase of his trial. FN2. We note that Van Poyck raised this same claim in his direct appeal. At that time we disposed of the issue by stating that “[a]fter fully considering these issues in light of the record in this cause, we find no error which requires a new sentencing proceeding.” Van Poyck v. State, 564 So.2d 1066, 1070 (Fla.1990). The State, however, argued in its direct-appeal brief that “[a]ppellee contends that the issue is improperly before this Court on direct appeal.” As is proper, the State does not argue that the claim is procedurally barred in this collateral action. We choose to address this claim on its merits. For the reasons explained, though, we find that it has no merit.
Van Poyck's second argument relating to his penalty-phase representation is that the court below erred in refusing to allow him to either supplement the record or to reopen the evidentiary hearing on the post-conviction motion. The purpose of such reopening or supplementation would be to secure the affidavit or testimony of Dr. Villalobos in relation to his conversations with Klein. Dr. Villalobos presumably denies making certain statements to Klein. As noted earlier, Klein testified that Dr. Villalobos told him that Van Poyck was a sociopath. Indeed, the lower court cited this fact to bolster its conclusion that Klein's decisions were part of a tactical plan. It now seems that Dr. Villalobos, if allowed, would deny making such a statement.
In evaluating the impact of the judge's action, we must look at the type of claim Van Poyck raises. The trial judge's denial of Van Poyck's motion to reopen or to supplement is only harmful to him if the refused material would be determinative of a valid claim. In this case, Van Poyck is trying to use Dr. Villalobos's testimony or affidavit to prove ineffective assistance of penalty-phase counsel. If such ineffective assistance of counsel could not be proven even with the additional testimony or affidavit, any error in refusing to reopen or supplement would be harmless.
We have already stated that the record, as currently comprised, demonstrates no penalty-phase deficiency by Klein. Would the testimony or affidavit of Dr. Villalobos change that? Two large assumptions would have to be made in order to contemplate such a change. First, it would have to be assumed that Dr. Villalobos's testimony or affidavit would be given more credibility and weight than Klein's testimony. Second, it would have to be assumed that Klein's tactical decision as to mental-health evidence is crippled if he truly received no information from Dr. Villalobos (as the doctor claims) instead of negative information (as Klein claims). It is not at all clear that either of these assumptions is valid. In the first instance, Klein's testimony is quite convincing. Indeed, there is scant evidence that Klein's testimony even came as a surprise to Van Poyck. In the second instance, it must be remembered that Klein testified that he was inclined to refrain from presenting mental-health evidence as mitigation unless a mental-health expert could actually say Van Poyck was mentally ill. Dr. Villalobos was not, by any account, prepared to make that statement. In fact, the affidavit signed by Dr. Villalobos (at issue in this particular motion) made no such affirmative claim. The affidavit reflects only that Dr. Villalobos had insufficient time to make any evaluation. Van Poyck attributes the insufficiency of examination time to Klein's deficient preparation. Even if Dr. Villalobos told Klein that he had insufficient time to offer any opinion, it is by no means certain that Klein would have been deficient for making the tactical decision to refrain from presenting (thereby halting his search for a mental-health expert) mental-health mitigation. As we have already demonstrated, Van Poyck's prison records were full of unsavory information that Klein has testified he wanted to keep from the jury. With this said, though, we will grant, arguendo, that both assumptions outlined above are valid and that Dr. Villalobos's affidavit or testimony would prove Klein's penalty-phase performance deficient. In such an event, Van Poyck still has to demonstrate that he was prejudiced. He cannot do so because this record will not support such a conclusion.
Any mental-health evidence that might have been produced would have been severely undermined by the contents of Van Poyck's prison records. Those records included extensive documentation as to examinations and conclusions by prison doctors. On September 26, 1975, Van Poyck was presented to the Forensic Unit Staff Conference. The conference was attended by doctors Ogburn, Dachtera, and Mehta. Their final diagnosis was that Van Poyck suffered from “Personality Disorder, Antisocial Type with Paranoid Features.” Then, on November 20, 1975, Dr. Margarita Gonzalez examined Van Poyck. She diagnosed Van Poyck with: (1) personality disorder, antisocial type with paranoid features; and (2) drug abuse, multiple. On February 26, 1976, Dr. Delfina Johnson examined Van Poyck and found no psychosis at the time. Once again, on May 27, 1983, Dr. Sotomayor evaluated Van Poyck and concluded that he did not “reveal any signs of psychosis.” In fact, Van Poyck told Dr. Sotomayor that “[a]'int nothing wrong with me now. Am working and trying hard to behave myself.” The following year, on June 6, 1984, another report was filed which found that “[s]ince Van Poyck exhibits an absence of any acute distress or mental disorder, treatment is not indicated and none is recommended.” The prison records clearly contain an abundance of medical evidence indicating that Van Poyck's mental condition, if any, would not be mitigating in nature. Any testimony developed by the defense through mental-health experts would certainly be tempered by its inconsistency with the medical reports in the prison records. The records also contain the following information that would certainly be damaging to Van Poyck.
Over twenty prison disciplinary reports were filed against Van Poyck. Further, he had an attempted escape in his records. On that point, Klein specifically testified that he wanted to keep such information from the jury because of the negative impact it would have on seeking a life recommendation. The records also reflect that in March of 1977, Van Poyck was placed in administrative confinement after getting caught typing a letter to another inmate. In that letter he stated, “I know for a fact that I am going to end up on death row within a couple of years.” He also stated, “I would not hesitate to destroy any snake in a brown uniform.” It must also be remembered that Van Poyck admitted to Klein that he faked the light bulb incident. If Klein had proceeded to use the incident as mitigating in nature, he would have been faced with an ethical problem. He would have encountered a situation in which his duty of candor towards the court required the revelation of Van Poyck's admission. The problematic nature of such a predicament is obvious.
Even as we assume, arguendo, that Klein should have allowed more time for mental-health evaluations of Van Poyck by experts, it cannot be denied that the force of the above information would probably dwarf any expert testimony Klein might have secured. In the context of this case, there is no possibility that Van Poyck could demonstrate that “but for counsel's errors he would have probably received a life sentence.” Hildwin v. Dugger, 654 So.2d 107, 109 (Fla.1995). In reaching this conclusion, we have taken into account the testimony offered by Dr. Robert T.M. Phillips. Dr. Phillips specifically opined that Van Poyck is an individual who has suffered from what we would describe as a psychoactive substance abuse, organic mental disorder, which is a long winded, perhaps unnecessary saying, this is someone who has suffered from the ravages of alcohol and drug dependency and at the height of their dependency is most dysfunctional.
Dr. Phillips also opined that Van Poyck suffered from a schizo-affective disorder, a disorder described as being “not quite schizophrenia.” We restate that, when considered in the context of the entire record, an isolated advantageous evaluation cannot be considered determinative. In light of our finding that Van Poyck cannot demonstrate prejudice, the supplementation of the record or the reopening of the evidentiary hearing would not have led to a finding of ineffective assistance of penalty-phase counsel. An error, if any, in refusing to reopen or to supplement is consequently harmless beyond a reasonable doubt.
Ineffective Assistance of Guilt-Phase Counsel
We next address Van Poyck's claim that he was denied effective assistance of counsel at the guilt phase of his trial. Specifically, Van Poyck claims that his guilt-phase representation was ineffective in the following ten ways: (1) by failing to demonstrate that Van Poyck was not the triggerman; (2) by failing to impeach the testimony of Officer Turner; (3) by failing to present a voluntary intoxication defense; (4) by failing to pursue a motion to change venue; (5) by failing to adequately conduct voir dire; (6) by conceding the underlying felonies of robbery and escape; (7) by failing to preserve a Batson FN3 violation; (8) by allowing a shift in the burden of proof; (9) by allowing Van Poyck to take a large role in trial preparations; and (10) by failing to object to prejudicial statements by the prosecutor. More generally, Van Poyck also complains that the court below erred in summarily denying certain claims, thereby denying him a full and fair hearing. We disagree. We affirm the trial court's denial of all relief on this issue. Prior to addressing any of the individual areas of concern as to guilt-phase representation, however, we point out the following insightful testimony offered by Van Poyck's trial co-counsel (Michael Dubiner, now a key Van Poyck witness) at the evidentiary hearing below:
Q: You testified on direct that this was a loser in guilt phase. Is that still your opinion today? A [Dubiner]: No question about it. .... Q: There were numerous witnesses who identified the defendant as being involved in the escape attempt, isn't that correct? A: Yes. Q: The murder weapon was found in the vehicle where the defendant was eventually arrested with Valdes, correct? A: That's correct. Q: Officer Turner's weapon that was taken from him during the commission of this crime was found in that motor vehicle, correct? A: That's correct. Q: There's never an identity issue as to whether the defendant was involved in that escape attempt, identity was never in issue? A: No. Q: Would anything have changed the outcome of that guilt phase? A: No. I think that the strong likelihood is that any defense that was presented in Phase I would have led to a first-degree murder conviction.
Surely this testimony from a defense witness militates towards a finding that Van Poyck could not have suffered prejudice under the second prong of Strickland. Dubiner's testimony is reinforced by the statements, on cross-examination, of another defense witness (at the evidentiary hearing below), Carey Haughwout. She stated: Q: My question is very specifically to the guilt phase of that trial, is there a viable defense? A: No, I don't believe that there is a defense that would have resulted in an acquittal, no. Q: There is no voluntary intoxication defense? A: Not that would have resulted in an acquittal, no. Q: There is no insanity defense for the guilt phase? A: Not that would have resulted in an acquittal. Q: There's no defense of any kind to the guilt phase? A: That's-I think that's what I said before, yes.
Our review of the record confirms the opinions expressed by both Dubiner and Haughwout. Even if trial counsel were, arguendo, deficient at the guilt phase, Van Poyck was not prejudiced by any of those mistakes. We stress, however, that we find few deficiencies. For instance, Klein clearly had tactical reasons for limiting his presentation of evidence that might indicate a triggerman other than Van Poyck. Klein testified at the evidentiary hearing below that he did not want to give up his “sandwich.” In other words, he did not want to lose the opportunity of giving two closing arguments at the guilt phase. To that end, he stated the following: Q: Was there-when you talked about the fact that it was important to save the sandwich, you're talking about the ability for the defense to argue first and last if there's no evidence offered aside from the testimony of the defendant? A: Yes. Q: Was that significantly important to you, sir? A: It was. It was very important to both Mr. Dubiner and myself. Q: Do you place an importance of argument over evidence? A: Generally, no, I don't. But I thought in this case it was very important to have the opening salvo and the closing salvo. Q: Was argument an important portion of Mr. Van Poyck's capital case for the defense? A: Yes. Q: How important? A: Argument? Q: Yes. A: Since we didn't have any exculpatory evidence, I would say it was crucial.
We find it clear that Klein had sufficient tactical reasons for refraining from the presentation of further direct evidence (in the form of DNA tests and receipts from a gun shop) as to the triggerman's identity.
Van Poyck also alleges that Klein was deficient in his cross-examination of Officer Turner, the guard who survived the incident. As to that cross-examination, Klein testified at the evidentiary hearing as follows: Q. Before going into that cross-examination, had you made some decision about how you were going to approach Mr. Turner? A. I had many, many months to think about it, yes. I made a decision we were-that I was not going to flat out attack him but be somewhat sensitive in cross-examining Mr. Turner because I thought he would be very sympathetic to the jury. Q. And it was a tactical decision, I take it, that you're describing? A. Yes, I suppose you could put it that way. It was tactical. Him being the surviving guard in the incident, I thought the jury would have tremendous sympathy for him and I think probably would look askance on anybody directly attacking this guy. He was lucky to be alive, after all. Despite these practical considerations, Klein still conducted a thorough cross-examination. His performance in this area was not deficient.
Next, Van Poyck argues that Klein was deficient in failing to investigate a voluntary intoxication defense. The record refutes any suggestion that Van Poyck was intoxicated at the time of the offense. Indeed, Van Poyck himself told Klein that he was sober. Further, Klein independently investigated the possibility that there was cocaine in the car used. He found no evidence of such substance. Klein was not deficient for rejecting this theory of defense. In sum, Van Poyck was not denied effective assistance of counsel at the guilt phase. We can find few, if any, deficiencies in Klein's performance. More important, however, is that fact that Van Poyck can demonstrate no prejudice. Van Poyck has the heavy burden of demonstrating that “counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Our review of the record demonstrates that the result in the guilt phase of this case is certainly reliable. This is reinforced by the testimony, at the evidentiary hearing below, of two of Van Poyck's own witnesses. We affirm the holding of the court below on this issue.
As his fifth FN4 issue, Van Poyck claims that a note in the state attorney's file was withheld from him during discovery. He further claims that the note was both material and exculpatory. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment.” The note at issue is not evidence. Instead, it is work-product. Even if it were evidence, though, it would not be material. In United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383-84, 87 L.Ed.2d 481, (1985)(Blackmun, J., plurality opinion), id. at 685, 105 S.Ct. at 3385 (White, J., concurring in part and concurring in judgment), the United States Supreme Court forwarded the following formulation for determining materiality: “The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Applying such a materiality standard to the facts of this case, there is clearly no reasonable probability that the result would have been altered had the challenged note been disclosed. The contents of the challenged note indicated that the “wound [came] from the driver's side.” This presumptively militated against a finding that Van Poyck was the triggerman. It would certainly have no effect on Van Poyck's conviction for felony murder. Therefore, the court below properly rejected this claim. We affirm the denial of relief. FN4. Van Poyck's fourth issue concerning the great risk to many aggravating circumstance is procedurally barred and will, consequently, be addressed with other procedurally barred issues after we finish rejecting the claims that merit substantive review.
Remainder of Van Poyck's Claims
The remainder of Van Poyck's claims are as follows: (4) the great risk to many aggravating circumstance was unconstitutionally vague; (6) the judge and jury weighed the invalid aggravating factors that the murder was premeditated or that Van Poyck was the triggerman; (7) the prosecutorial argument as well as the jury instructions improperly shifted the burden of proof during the penalty phase proceedings; (8) the trial court improperly denied Van Poyck's challenges for cause during jury selection; (9) Van Poyck's constitutional rights were violated by the prosecutor's conduct during trial; (10) the acquittal and affidavit of O'Brien together with the testimony of Turner necessitate a new trial; (11) Enmund / Tison FN5 errors necessitate a reversal of Van Poyck's death sentence; (12) the consideration, as an aggravating circumstance, of the underlying felony that had already been utilized to convict Van Poyck of felony murder was improper; (13) the trial court and prosecutor erred in indicating to the jury that sympathy was an inappropriate consideration; (14) the trial court failed to conduct an independent evaluation of the mitigation offered by Van Poyck; (15) the jury instructions given at the penalty phase were vague and confusing; and (16) the trial court committed fundamental error by failing to instruct the jury on justifiable or excusable homicide as part of the instruction on manslaughter. FN5. Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).
All of these claims are procedurally barred. Most were raised and rejected on direct appeal.FN6 One of these claims was not objected to at trial and fails to rise to the level of fundamental error.FN7 Finally, two of the claims are waived because they should have been raised on direct appeal.FN8
FN6. Claims that were raised and resolved on direct appeal include (4), (6), (8), (10)(this material does not qualify as newly discovered evidence and the challenges to the convictions for attempted escape and premeditated murder were resolved in the direct appeal), (11), (12), (14), and (15). As to claim (4), we specifically stated in the direct appeal that “[w]e find that none of the other claims merit discussion. Further, we conclude that each of the aggravating circumstances found by the trial judge was properly established in this record and that the trial judge could properly conclude that the aggravating circumstances outweighed the mitigating evidence in this cause.” Van Poyck, 564 So.2d at 1071. No subsequent change in the law is relevant to this analysis and therefore the procedural bar remains in place. FN7. Claim (9) is barred due to a lack of a contemporaneous objection at trial. Any error would not be fundamental. FN8. Claims (7) and (13) should have been raised on direct appeal.
For the reasons expressed, we affirm the lower court's denial of all relief. It is so ordered. OVERTON, GRIMES, HARDING and WELLS, JJ., concur. ANSTEAD, J., concurs in part and dissents in part with an opinion, in which KOGAN, C.J. and SHAW, J., concur.
ANSTEAD, Judge, concurring in part and dissenting in part.
I dissent from that part of the opinion finding no error in the trial court's failure to consider the evidence of Dr. Villalobos, and in the majority's approval of the trial court's finding that trial counsel performed competently in investigating and preparing appellant's case for the penalty phase proceedings. This Court was faced with almost the identical circumstances in Deaton v. Dugger, 635 So.2d 4, 9 (Fla.1993), wherein we held that counsel who waited until after the guilt phase to prepare for the penalty phase and then “scrambled” to investigate and prepare mitigation “deprived [the defendant] of a reliable penalty phase proceeding.” The same holding is mandated here.
The trial court ignored the issue of the failure to investigate and, instead, focused entirely on the apparently misrepresented statements of Dr. Villalobos, and the trial court's speculation that appellant's bad record would have resulted in a death recommendation regardless of any mitigation. Similarly, the majority here has ignored the undisputed evidence of lack of investigation and preparation, as well as this Court's own prior opinion which demonstrates counsel's utter failure to present any viable mitigating evidence to the trial judge and jury. See Van Poyck v. State, 564 So.2d 1066 (Fla.1990). The majority fails to acknowledge, for example, that even the meager mitigation evidence presented by counsel was not put together until after the penalty phase began, and even then counsel conceded he had to “scramble” to put anything on.FN9 Further, the attempt at mitigation by this “scramble” actually backfired when the trial court not only rejected it, but used it to bolster the case against the defendant. See 564 So.2d at 1069.
FN9. This “scramble” included the ill-fated attempt to use Dr. Villalobos, who, without time to do and review testing and secure background materials on the defendant, refused to get involved. The majority has simply rehashed a lot of general information known to trial counsel in an attempt to put the best face on a very bad situation. Tellingly, the majority has devoted some ten pages to a vain attempt to support a flawed analysis of less than two pages issued by the trial court.FN10 See Majority op. at 688-695.
FN10. The entire analysis and findings of the trial court are set out in less than two (2) pages that state: The great bulk of all the testimony received by the Court centers around counsel's alleged ineffective assistance during the penalty phase. Both trial co-counsel, Dubiner and Petitioner's expert, Haughwout, testified in great depth on this issue.
Petitioner also presented the live expert testimony of Jan Vogelsang, a licensed clinical social worker, and Dr. Robert Phillips, a psychiatrist, along with the affidavits of two additional experts. Eight of the remaining nine live witnesses and most of the affiants were lay people, all of who [sic] testified to different aspects about the Petitioner's dysfunctional background. Each stated they could and would have testified during the penalty phase of the trial if called upon to do so. The nexus of Petitioner's argument under this claim is primarily based upon the allegation that counsel failed to conduct a penalty phase investigation until the conclusion of the guilt-innocence phase; that what investigation was done was totally inadequate and ineffective and failed to present any in-depth mitigating mental health and background evidence.
The sole witness presented by the State was Petitioner's trial co-counsel, Cary Klein. Despite Petitioner's evidence to the contrary, Klein investigated the possibility of mitigating mental health factors. In fact, he obtained the services of one Dr. Villalobos, a psychiatrist, who after interviewing the Petitioner prior to the penalty phase and reviewing psychological tests performed upon the Petitioner, told Klein that he, Dr. Villalobos, had nothing helpful to say about the Petitioner. Dr. Villalobos also told Klein that the Petitioner had told him that he, the Petitioner, had faked mental illness while in prison. Dr. Villalobos further informed Klein that the test results were unfavorable to Petitioner, that petitioner was a sociopath, and that he saw no evidence of organic brain syndrome. Armed with this information together with Petitioner's attempted escapes and long history of incarceration, Klein made a conscious, tactical judgment not to pursue this line of defense in the penalty phase of the trial for fear of opening a Pandora's box.
In view of the overwhelming evidence of guilt coupled with the Petitioner's extensive criminal and juvenile background, his admissions at the time of the trial, and in light of the 11 to 1 vote to impose the death penalty (which means a minimum of 5 jurors would have had to have voted differently), Petitioner has failed to carry the burden established by the United States Supreme Court in Strickland, i.e. the probability of a different trial outcome. The undisputed facts in this case present a blatant example of counsel's failure to investigate and prepare a penalty phase defense. Once again, we have a lawyer appointed who had absolutely no experience in capital cases. Now, there are many resourceful and talented lawyers who, although lacking specific experience, would be able to learn the system and do an outstanding job of investigating and preparing a defense. However, in this case we have an inexperienced lawyer who has conceded that he was unprepared and, in his words “caught with [his] pants down,” because he had erroneously assumed that the trial court would grant a lengthy continuance between the guilt phase and the penalty phase of the proceedings.
We do not have to guess at whether counsel did a proper investigation and prepared a defense before the penalty phase began: counsel admits he did not. Trial counsel acknowledged under oath that with the denial of a continuance he simply “ran out of time” to properly investigate mitigation. In addition, we have the sworn and unrebutted testimony of co-counsel who says the situation was so bad that he threatened to go to the trial judge and disclose the blatant lack of investigation and preparation. He concedes that he made a serious mistake in not doing so. In the post-conviction hearing below the appellant presented a vast array of mitigating circumstances of the most serious nature that should have been thoroughly investigated and presented at the original penalty phase. Two brief excerpts from appellant's brief provide a flavor of the information that would have been discovered had a proper investigation of appellant's life been done:
Billy was sent to youth hall for the first time at age 12. Shortly after he arrived there, he was raped. Two years later, he was sent to the Florida School for Boys at Okeechobee. At Okeechobee, Billy was hog tied, drenched in water and left over night in the “wet room,” and frequently sent to the “ice cream room,” where he was given thirty licks with straps and paddles, the process being repeated if he cried out during the beating. T. 486, 498; App. 32. He also saw other children be sexually abused, and was placed under the supervision of older and larger offenders. T. 205-09. The substandard conditions at Okeechobee are well documented, see generally App. 37, and were described in detail by juvenile justice expert Paul DeMuro. DeMuro described the dangerous, overcrowded conditions in the dormitories, where status offenders were not separated from violent offenders, nor smaller children from larger, leading to frequent physical and sexual assaults on the younger and smaller children; the absence of any attempt to treat or rehabilitate youthful offenders; and the fact that small, middle class white boys without a history of institutionalization (like Billy Van Poyck when he was first sent to Okeechobee) were at the greatest risk. T. 319-32. .... Approximately two years after Billy was sent to adult prison, he suffered a breakdown. For most of the next several years he received psychiatric treatment and medication, including “industrial strength” dosages of antipsychotic medications, and two admissions to the Florida State Hospital in Chattahoochee. T. 595-605; see generally Def. Exs. 23, 24. Dr. Rothenberg believes that this breakdown was the predictable result of the failure to provide the type of long term inpatient treatment he had recommended for Billy: This subsequent history confirms my initial diagnosis. It is predictable and almost inevitable that a young and vulnerable person, already suffering from psychosis, would deteriorate further when placed in an adult prison, without any therapeutic intervention. In the absence of the type of therapeutic intervention that I recommended, there is no reason to believe that Mr. Van Poyck's mental illness has ever dissipated. While the observability of such a mental illness fluctuates over time and may be masked by medication, the mental illness itself persists. App. 46.
All of this mitigating evidence was readily available to trial counsel, but none of it was discovered or presented. The reasons for these failures are not far to seek. Mr. Van Poyck's lead attorney was Cary Klein. Klein was a general litigation attorney who had never before handled a capital case. T. 1041-42. From the beginning of this difficult, complex case Klein believed a felony murder conviction likely, and that the case would almost certainly go to a penalty phase proceeding. T. 1145. Also, at the very outset of the case Klein discussed potential mitigation with Mr. Van Poyck. T. 1060-61. However, Klein did not investigate for mitigation at any time prior to the trial. Instead, he had decided to wait until the guilt phase of the trial was over to begin penalty investigation because he believed that the trial court would give a one to three week continuance between phases. T. 1158. He explained at the hearing that he was counting on this time to “investigate” penalty phase issues and felt safe in doing so because the court had “assured” him that there would be a few weeks between phases. Id. As it turned out, no continuance was forthcoming, and the record contains no written or oral order or promise of a continuance. See T. 1196. Appellant's Initial Brief at 15, 17-18.
In our previous review of this case we found insufficient evidence of premeditation but affirmed appellant's guilt on a felony-murder theory. In our opinion we upheld the sentence of death and expressly noted that the trial court properly rejected the meager mitigation offered by counsel. Van Poyck v. State, 564 So.2d 1066 (Fla.1990). Knowing what we do now, we should not give our approval to a sentence of death predicated upon a patent case of ineffective assistance of counsel. In doing so we are simply providing additional support to the already considerable body of evidence that the death penalty process is seriously flawed by the legal system's tolerance of incompetent counsel. Cf. Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835 (1994). Van Poyck is not going anywhere; he has been convicted and imprisoned for first degree murder. His conviction and imprisonment are not in question. We should apply our holding in Deaton v. Dugger and remand this case for a reliable penalty phase proceeding in which evidence of aggravation and mitigation can be presented by counsel prepared on both sides.
KOGAN, C.J. and SHAW, J., concur.
Van Poyck v. Florida Dept. of Corrections, 290 F.3d 1318 (11th Cir. 2002). (Habeas)
Defendant convicted of capital murder in state court, 564 So.2d 1066, petitioned for writ of habeas corpus. The United States District Court for the Southern District of Florida, No. 99-08091- CV-WPD, William P. Dimitrouleas, J., denied relief, and appeal was taken. The Court of Appeals held that: (1) defendant was not denied effective assistance of trial or appellate counsel; (2) denial of continuance between guilt and penalty phases of trial did not deprive defendant of due process, his right to counsel, or particularized death sentence; and (3) state supreme court's affirmance of death penalty, based on finding that evidence supported one of two alternative theories, was reasonable. Affirmed.
In 1988, Petitioner William Van Poyck was convicted of murder and sentenced to death by a Florida court.FN1 Van Poyck brought this petition for habeas corpus in federal district court, pursuant to 28 U.S.C. § 2254. The district court rejected his petition. These issues were certified for appeal: 1) whether Petitioner received ineffective assistance of counsel during the penalty phase of his trial; 2) whether the trial court erred when it denied Petitioner a continuance between the guilt and penalty phases of his trial; 3) whether Petitioner received ineffective assistance of counsel during appellate proceedings; 4) whether the trial court failed to consider properly all of the mitigating evidence before it; 5) whether Petitioner's sentence is based on an invalid aggravating factor; and 6) whether the state withheld exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We affirm the district court's ruling on each of the issues.FN2
FN1. Petitioner's conviction and sentence were affirmed on direct appeal. See Van Poyck v. State, 564 So.2d 1066 (Fla.1990), cert. denied, Van Poyck v. Florida, 499 U.S. 932, 111 S.Ct. 1339, 113 L.Ed.2d 270 (1991) (hereinafter “ Van Poyck I ”). Petitioner sought post-conviction relief in Florida state court, but was unsuccessful. See Van Poyck v. State, 694 So.2d 686 (Fla.1997) (rejecting Petitioner's motion, brought under Fla. R.Crim. P. 3.850, to vacate his conviction and sentence), cert. denied, Van Poyck v. Florida, 522 U.S. 995, 118 S.Ct. 559, 139 L.Ed.2d 400 (1997) (hereinafter “ Van Poyck II ”); Van Poyck v. Singletary, 715 So.2d 930 (Fla.1998) (rejecting Petitioner's petition for habeas corpus), cert. denied, 526 U.S. 1018, 119 S.Ct. 1252, 143 L.Ed.2d 349 (1999) (hereinafter “ Van Poyck III ”). FN2. We see no merit to Petitioner's argument on issue 4, the failure to consider mitigating evidence, or on issue 6, the withholding of exculpatory evidence. We therefore affirm the district court on these issues without further discussion.
The facts giving rise to Petitioner's conviction and sentence are discussed in the Florida Supreme Court's opinions dealing with this case. See Van Poyck I, 564 So.2d at 1067-68. We will summarize the facts briefly. In June 1987, Florida inmate James O'Brien-a friend of Petitioner-was scheduled to be transported to a doctor's office by two Florida corrections officers: Steven Turner and Fred Griffis. When the van in which these three men were traveling reached the doctor's office, Petitioner and an accomplice (Frank Valdes)-who were both armed-approached the vehicle. Petitioner took Officer Turner's gun and forced him under the van. While he was under the van, Officer Turner saw Officer Griffis get out of the van and saw Valdes force Officer Griffis to the back of the van. Then, Officer Griffis was shot and killed.
Petitioner was charged with and tried for first-degree murder.FN3 The prosecution argued two different theories to support the charge: 1) that Petitioner had committed premeditated murder against Officer Griffis and 2) a felony murder theory. The jury convicted Petitioner of first-degree murder and recommended the imposition of the death penalty. The trial court accepted the recommendation and sentenced Petitioner to death. On appeal, the Florida Supreme Court decided that insufficient evidence existed to prove beyond a reasonable doubt that Petitioner was the one who actually killed Officer Griffis (that is, that he was the “triggerman”). And the Florida Supreme Court decided the conviction on the basis of premeditation could not be sustained. Nevertheless, the court upheld the conviction on the basis of felony murder and the sentence. See id. at 1069.
FN3. Florida law provides for a three-part process in capital cases. The first stage is the guilt phase. If a defendant is convicted of a capital crime, the prosecution and the defendant then present aggravating and mitigating evidence. After hearing the evidence, the jury makes a recommendation on whether life imprisonment or execution is the proper punishment. Although it is entitled to “great weight,” the jury's recommendation is not binding upon the trial court. Instead, the trial court conducts its own sentencing hearing and ultimately decides for itself whether the imposition of the death penalty is appropriate. See Fla. Stat. Ann. § 921.141(1)-(3); Bolender v. Singletary, 16 F.3d 1547, 1556 (11th Cir.1994).
STANDARD OF REVIEW
This petition for habeas corpus was filed on 3 February 1999, well after the effective date of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). Therefore, pursuant to 28 U.S.C. § 2254(d), a petition for a writ of habeas corpus can only be issued if the state court's ruling “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2); see also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1518, 146 L.Ed.2d 389 (2000). Unless a state court decision is directly contrary to Supreme Court case law, we review state court findings of fact and conclusions of law for reasonableness. The district court's determination of whether this standard has been met is subject to a de novo review. See Harrell v. Butterworth, 251 F.3d 926, 930 (11th Cir.2001), cert. denied, 535 U.S. 958, 122 S.Ct. 1367, 152 L.Ed.2d 360 (2002). A district court's findings of fact are reviewed for clear error. See Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir.2000).
I. Ineffective Assistance of Counsel at the Penalty Phase
Petitioner argues that his lawyer (“Counsel”) provided ineffective assistance during the penalty phase of his trial. He contends that several omissions by Counsel rendered his assistance ineffective: 1) evidence that Petitioner suffered from a mental disorder; 2) evidence of Petitioner's life history; and 3) evidence that Petitioner was not the triggerman.
The standard for reviewing ineffective assistance claims was well-established when the Florida Supreme Court decided Petitioner's ineffectiveness arguments: a petitioner must show that his lawyer's performance fell below an “objective standard of reasonableness” and that the lawyer's deficient performance prejudiced the petitioner. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Establishing these two elements is not easy: “the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d 1506, 1511 (11th Cir.1995) (en banc) FN4 (quoting Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.1994)). FN4. We realize that-in the context of a habeas review of a state court's decision-only Supreme Court precedent can clearly establish the law. We cite Eleventh Circuit case law to demonstrate some applications of the relevant Supreme Court precedent that we believe are among the reasonable applications.
For assessing a lawyer's performance, Chandler v. United States, 218 F.3d 1305 (11th Cir.2000) (en banc) cert. denied, 531 U.S. 1204, 121 S.Ct. 1217, 149 L.Ed.2d 129 (2001), sets out the basic law: “Courts must indulge the strong presumption that counsel's performance was reasonable and that counsel made all significant decisions in the exercise of reasonable professional judgment.” Id. at 1314 (internal marks omitted). This presumption of correctness applies when a petitioner is challenging his lawyer's act in not presenting certain mitigating evidence. See Bolender v. Singletary, 16 F.3d 1547, 1557 (11th Cir.1994) (“A lawyer's election not to present mitigating evidence is a tactical choice accorded a strong presumption of correctness which is virtually unchallengeable.”) (emphasis added) (internal marks omitted). Our role in reviewing an ineffective assistance claim is not to “grade” a lawyer's performance; instead, we determine only whether a lawyer's performance was within “the wide range of professionally competent assistance.” See Strickland, 104 S.Ct. at 2066.
The inquiry into whether a lawyer has provided effective assistance is an objective one: a petitioner must establish that no objectively competent lawyer would have taken the action that his lawyer did take. See Chandler, 218 F.3d at 1315. Because the standard is objective, Petitioner's argument that his counsel would have done more investigation if the trial court had granted a continuance between the guilt and penalty phases of the trial FN5 and that his counsel, during a post-conviction evidentiary hearing, claimed to have been “caught with his pants down” in preparing for the penalty phase is not determinative. See id. at 1313 (stating that “lawyers, in every case, could have done something more”); Tarver v. Hopper, 169 F.3d 710, 716 (11th Cir.1999) (stating that lawyer's “admissions of deficient performance” were not persuasive). FN5. This denial of a continuation does, however, raise other issues and will be discussed in Part II below.
A petitioner's burden of establishing that his lawyer's deficient performance prejudiced his case is also high. “It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test.” Strickland, 104 S.Ct. at 2067. Instead, a petitioner must establish that a reasonable probability exists that the outcome of the case would have been different if his lawyer had given adequate assistance. See id. at 2068.
A. Mental Health History
Petitioner argues that Counsel was deficient for failing to introduce evidence that Petitioner suffered from various disorders. Petitioner specifically claims that he suffers from “a serious thought disorder,” and argues that the jury should have heard evidence of “multiple diagnoses of paranoid schizophrenia, [a] lengthy history of treatment with antipsychotic medications, the two admissions to the Florida State Hospital, and ... attempts at self harm.” (Petition for Habeas Corpus at 24.) In addition, he claims to suffer from “a personality disorder with immature and dependent features.” (Id.) Petitioner cannot prevail on these claims. The Florida Supreme Court determined that Counsel “had clear tactical reasons” for not presenting mental health evidence. See Van Poyck II, 694 So.2d at 692. That determination and the conclusion that Counsel's performance therefore was not deficient are not unreasonable.
During a post-conviction evidentiary hearing, Counsel identified a number of reasons for not arguing Petitioner's mental health as a mitigating factor. First, Petitioner had spent most of his adult life in prison; and most evidence of Petitioner's mental health would have been based upon prison records. Counsel concluded that the use of such records would have opened the door to a considerable amount of damaging evidence: many disciplinary reports, weapons offenses, and escape attempts. Second, in discussions between Petitioner and Counsel before trial, Petitioner claimed to have faked many of the episodes that led to his being sent to the Florida mental hospital. These considerations give strong support to Counsel's decision not to present mental health evidence. First, a lawyer need not embrace his client's fraud. See, e.g., Davis v. Singletary, 119 F.3d 1471, 1475 (11th Cir.1997) (lawyer has “ethical duty not to present a defense based upon what he personally knew to be a lie”). And, the harm from the jury learning of these other factors could have outweighed the benefits of the evidence Petitioner now says should have been presented. A reasonable tactic, such as the one followed by Counsel, cannot form the basis for an ineffective assistance claim.
B. Life History
Petitioner also claims that Counsel's failure to present evidence of Petitioner's life history deprived him of the effective assistance of counsel. He specifically points to evidence of a difficult childhood, abuse at the hands of caretakers, and abuse suffered in juvenile prison. Petitioner identifies several additional witnesses who he says could have testified to the early death of Petitioner's mother, the emotional withdrawal of his father, physical abuse at the hands of a housekeeper, the fact that the Van Poyck children were looked after for a time by a mentally unstable aunt (Aunt Phyllis), and further abuse at the hands of Petitioner's stepmother (the father's second wife). Petitioner points to evidence of conditions Petitioner suffered at the Florida School for Boys at Okeechobee, where he was allegedly beaten and witnessed sexual abuse of other children.
In resolving this issue, the Florida Supreme Court concluded that “[e]vidence of [Petitioner's] life history was adequately presented by [Counsel].” Van Poyck II, 694 So.2d at 692. We accept that conclusion and the findings that support it; they are reasonable. During the post-conviction evidentiary hearing, Counsel testified that he and Petitioner had discussed the penalty phase and the presentation of mitigating evidence “constantly.” At the penalty phase hearing itself, Counsel called five witnesses. These witnesses testified to much of what Petitioner now claims Counsel failed to show the jury.
At trial, Jeff Van Poyck, Petitioner's brother, testified to their mother's early death, abuse from the housekeeper, and the strict discipline imposed by their stepmother. He also testified about how he had involved Petitioner in crime and in alcohol use at an early age. Petitioner's stepmother testified to the mental instability of Aunt Phyllis and to the negative influence Jeff had over Petitioner. Another aunt also testified to the mental instability of Aunt Phyllis. Finally, Counsel called a nurse who had met Petitioner while he was in prison. She testified that Van Poyck was a caring and friendly person and that he had expressed remorse over the death of Officer Griffis. Petitioner also testified on his own behalf. He testified to his close relationship with O'Brien, his educational pursuits in prison, and his regret of the death of Officer Griffis. The presentation of life-history evidence at the trial satisfied the performance element of the Strickland test. That additional evidence might exist does not establish defective performance. It is well-settled in this Circuit that a petitioner cannot establish an ineffective assistance claim simply by pointing to additional evidence that could have been presented. See Waters, 46 F.3d at 1518. FN6. We note what is well-established in this circuit because, if this circuit's law has developed in a certain way, we are hard-pressed to say that that development was unreasonable.
Moreover, the omission at trial of the specific evidence that Petitioner says should have been introduced was not so unreasonable as to give rise to a valid ineffective-assistance claim. The only non-cumulative, mitigating life history evidence FN7 Petitioner identifies is abuse from his stepmother and abuse suffered in juvenile prison. The failure to present this evidence was not, however, ineffective assistance. FN7. As noted above, much of the additional evidence Petitioner says should have been presented was presented. See Van Poyck II, 694 So.2d at 692 (“[T]he jury was actually aware of most aspects of Van Poyck's life that he now argues should have been presented.”). A petitioner cannot establish ineffective assistance by identifying additional evidence that could have been presented when that evidence is merely cumulative. See Glock v. Moore, 195 F.3d 625, 636 (11th Cir.1999) (finding that, “where much of the new evidence that [petitioner] presents is merely repetitive and cumulative to that which was presented at trial,” petitioner could not show prejudice), cert. denied, 531 U.S. 890, 121 S.Ct. 213, 148 L.Ed.2d 150 (2000).
First, the additional evidence was not so powerful that every objectively reasonable lawyer who had the evidence would have used it. And, even if the evidence was that powerful, the evidence was not known to Counsel at the time of the penalty phase; and the failure to know of it was not the result of a constitutionally deficient investigation. Counsel and Petitioner talked “constantly” about potential mitigating evidence. During these conversations, the question of abuse was discussed “on a number of occasions,” according to Counsel's post-conviction testimony. Petitioner stated that he did not think he had been abused as a child. Furthermore, Petitioner specifically denied that he was ever raped in prison and told Counsel that he generally got along fine in prison. Although Petitioner's experiences in the juvenile prison were never explicitly discussed, at no time during the many conversations Petitioner and Counsel had about potential mitigating factors did Petitioner suggest abuse in juvenile prison. Information supplied by a petitioner is extremely important in determining whether a lawyer's performance is constitutionally adequate. In Strickland, the Supreme Court wrote “[c]ounsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.” Strickland, 104 S.Ct. at 2066 (emphasis added). When a petitioner (or family members petitioner directs his lawyer to talk to) do not mention a history of physical abuse, a lawyer is not ineffective for failing to discover or to offer evidence of abuse as mitigation. See Williams v. Head, 185 F.3d 1223, 1237 (11th Cir.1999) (“An attorney does not render ineffective assistance by failing to discover and develop evidence of childhood abuse that his client does not mention to him.”), cert. denied, 530 U.S. 1246, 120 S.Ct. 2696, 147 L.Ed.2d 967 (2000). Therefore, the Florida Supreme Court's rejection of this claim was not unreasonable.
C. Triggerman Evidence
Petitioner argues that Counsel's performance was constitutionally defective because he failed to present evidence that Petitioner was not the triggerman. He identifies two such pieces of evidence: that Valdes had blood on his clothes matching Officer Griffis's blood type, but that Petitioner did not; and that the murder weapon had been purchased by Valdes's girlfriend and that Valdes had been in possession of the gun when he and Petitioner left to commit the crime. The Florida Supreme Court in its opinions has not discussed this particular ineffectiveness claim. The lack of words in the Florida Supreme Court opinions, however, does not lessen the deference that is to be given the Florida Supreme Court's rejection of Petitioner's contention: we still can only grant relief if the Florida Supreme Court's rejection of the claim was directly contrary to, or was an unreasonable application of, clearly established federal law. See Wright v. Secretary for the Dept. of Corrections, 278 F.3d 1245, 1253-56 (11th Cir.2002). We conclude that the Florida Supreme Court's decision on the issue was not unreasonable.
We-in this instance-do not discuss the performance element of ineffective assistance of counsel because we conclude that the Florida Supreme Court could have reasonably concluded that no prejudice had been shown. A review of the penalty phase transcripts convinces us that Petitioner cannot establish that he was prejudiced by Counsel's failure to introduce this evidence. During the penalty phase, the witnesses called by the prosecutor only testified about Van Poyck's past crimes and about the fact that he was on parole when the instant offense was committed. The prosecutor did not present additional evidence suggesting that Petitioner was the triggerman.
Even more telling is the prosecutor's closing argument. Petitioner's being the triggerman played only a very minor role in the prosecutor's argument. As aggravating factors, the prosecutor advanced these things: 1) that Petitioner was on parole when the crime was committed; 2) that the crime was committed for the purposes of effectuating an escape from prison; 3) that Petitioner knowingly created a great risk of death to many persons; and 4) that Petitioner had previously been convicted of a violent felony. The establishment of these elements did not require arguing that Petitioner was the triggerman. The prosecutor never argued that it had been established beyond a reasonable doubt that Petitioner was the triggerman.
The only time the prosecutor did argue that the evidence tended to show that Petitioner was the triggerman was in rebutting Petitioner's argument that he was only an accomplice and played only a minor role in the crime.FN8 Even in rebutting that argument, however, the prosecutor relied heavily on the idea that, “[r]egardless of who the triggerman is,” death would still be appropriate. Rather than focusing the jury on who the triggerman was, the prosecutor stressed that Petitioner could not be considered a minor participant because he had been the one to come up with the idea of breaking O'Brien out of custody and had planned the crime. While the prosecutor did, on a few occasions in his closing argument, say that evidence in the case suggested that Petitioner was the triggerman, the main argument made by the prosecutor was that the death penalty-because of the four aggravating factors and because Petitioner was not a minor participant in the underlying violent felony-was an appropriate sentence for Petitioner, regardless of who actually shot Officer Griffis. FN8. Florida law provides that a mitigating circumstance exists where “[t]he defendant was an accomplice in the capital felony committed by another person and his or her participation was relatively minor.” Fla. Stat. Ann. § 921.141(6)(d).
Especially because the prosecutor's main argument was that the death penalty was appropriate regardless of who the triggerman was, we see no reasonable probability that, if Counsel had presented the additional evidence that Petitioner was not the triggerman, the outcome of the sentencing phase would have been different. The Florida Supreme Court could reasonably conclude that no prejudice existed. The Florida Supreme Court did reasonably conclude that the triggerman-evidence claim entitled Petitioner to no relief.
II. Denial of Continuance
Second, Petitioner argues that the trial court deprived him Due Process and his right to counsel and a particularized death sentence when the court failed to provide a continuance between the guilt and penalty phases of his trial. Petitioner claims that Counsel had relied upon the trial court's earlier promises to grant such a continuance and that Counsel had planned to conduct more extensive penalty phase investigations during the promised continuance. This claim is another one that is denied without discussion in the Florida Supreme Court's opinions. Giving the Florida Supreme Court's decision on this issue the proper deference, we conclude that the rejection of this claim was not unreasonable.
The decision of whether to grant a continuance is reserved to the sound discretion of the trial court. See United States v. Bowe, 221 F.3d 1183, 1189 (11th Cir.2000); Gorby v. State, 630 So.2d 544, 546 (Fla.1993). Furthermore, to establish that a denial of a continuance was reversible error, a defendant must show that the denial caused “specific substantial prejudice.” United States v. Verderame, 51 F.3d 249, 251 (11th Cir.1995); see also Fennie v. State, 648 So.2d 95, 97-98 (Fla.1994).
We agree with the district court that the Florida Supreme Court was not unreasonable in rejecting this claim, because the Florida Supreme Court could conclude that the trial court did not abuse its discretion in denying the motion for a continuance. This case is not one in which the trial court had been promising a continuance all along, only to pull the rug out from under Petitioner at the last minute. Nor is it a case in which a defendant has been brought to trial shortly after being charged and defendant has simply lacked sufficient time to prepare a defense. The only indication that the trial court ever promised a lengthy (1-3 week) continuance comes from the testimony of Petitioner's trial lawyers. This supposed promise, however, was made off the record. Furthermore, the promise stands in contrast to the record statements made by the trial court throughout the proceedings.
The district court in this case found that “[d]efense counsel were aware during the guilt phase that the penalty phase would commence virtually immediately after the guilt phase.” (District Court Order at 21). Counsels' acts suggest that they knew the penalty phase would begin shortly after the guilt phase. The district court found many indications from the trial court to the Petitioner that only a short time between the guilt and penalty phase would be given. Moreover, at the end of the guilt phase, it was Counsel who insisted that the jury be “sequestered tonight in the event they have to come back tomorrow.” The sequestration was made on the assumption that the jury would return the next day for sentencing, and Counsel made no indication that he objected to beginning the penalty phase the next day. The district court's finding that Petitioner's lawyers understood that little time would be given between the guilt and penalty phases was not clearly erroneous.FN9 Given those facts, the Florida Supreme Court could have reasonably concluded that the trial court did not abuse its discretion in denying the continuance. Therefore, the Florida Supreme Court's rejection of the claim based on the denial of a continuance was reasonable.
FN9. In this case, we need not address the proper deference to give the implicit or unexpressed factual determinations made by the state court when it summarily denied this claim. Here, the state embraces the findings of the district court, so we will not decide whether federal courts are required to presume that the state courts, in rejecting Petitioner's claim, resolved all factual questions in the government's favor.
III. Ineffective Assistance on Direct Appeal
Petitioner further argues that he received ineffective assistance of counsel because his lawyer on direct appeal (“appellate counsel”) failed to present properly a state law claim based on peremptory challenges to jurors. Under Florida law, “the general rule [is] that it is reversible error for a court to force a party to use peremptory challenges on persons who should have been excused for cause, provided the party subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied.” Cummings v. State, 715 So.2d 944, 948 (Fla.1998). FN10. We recognize that federal law does not require reversal where a defendant is forced to use a peremptory challenge on a juror who should have been dismissed for cause. See Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988). Petitioner, however, is not claiming a direct violation of federal law with respect to jury composition. Instead, Petitioner is raising an ineffective assistance claim and arguing that he was prejudiced by his appellate lawyer's failure to assert properly a valid state-law claim.
In this case, Petitioner identifies seven jurors who he says should have been dismissed for cause, but on whom he was forced to use peremptory challenges. To make out a claim like this one, a defendant, however, must also identify at least one juror who he wanted to challenge, but who he was forced to accept on the jury because he had run out of peremptory challenges. The alleged lawyer error here is that appellate counsel named the wrong two jurors. While appellate counsel should have named jurors Moody and Bradford (who did, in fact, sit on the jury), he instead named jurors Bruschi and Abefarmis. Bruschi and Abefarmis had, however, been dismissed for other reasons. Therefore, the Florida Supreme Court ruled that petitioner's challenge to jury composition was “moot.” Van Poyck I, 564 So.2d at 1070.
In denying Petitioner's state habeas corpus petition, the Florida Supreme Court rejected Petitioner's argument that appellate counsel was ineffective in presenting the jury-composition claim. In rejecting the ineffective-assistance-of-appellate-counsel claim, the Florida Supreme Court determined that Petitioner failed to establish the necessary prejudice: after reviewing the voir dire, the Florida Supreme Court wrote that “each of the seven persons repeatedly and unequivocally stated that he or she could render a verdict based solely on the evidence and the instructions given by the trial judge. We find nothing in this record that mandates that any of these venirepersons should have been excused for cause.” Van Poyck III, 715 So.2d at 932-34.FN11 We accept that conclusion; Petitioner has not met his heavy burden of showing that it is unreasonable, either in fact or in law. FN12
FN11. Although the Florida Supreme Court did not explicitly address the venire of Bradford and Moody, the district court did. The district court wrote that “both Moody and Bradford were appropriately on the jury.” (District Court Order at 16.) For the reasons discussed below with respect to the other challenged jurors, we agree with that ruling. FN12. Petitioner argues that the Florida Supreme Court's statement on direct appeal that jurors Bruschi and Abefarmis should have been dismissed for cause required that court to hold, in the state habeas proceedings, that the jurors who are relevant to the claim should also have been dismissed for cause. This argument is without merit. The Florida Supreme Court's statement that jurors Bruschi and Abefarmis should have been dismissed for cause is only dicta, unnecessary to the decision. The Florida Supreme Court stated that the claim was “moot” because Bruschi and Abefarmis had been dismissed for other reasons. See Van Poyck I, 564 So.2d at 1070. The “law of the case” doctrine does not apply to dicta. See Myers v. Atlantic Coast Line R.R. Co., 112 So.2d 263, 267 n. 6 (Fla.1959); see also Golden v. State, 528 So.2d 50, 51 (Fla.Ct.App.1988) (“The doctrine of the law of the case applies only to issues actually or impliedly presented and decided on appeal, and not to mere dicta.”) (emphasis added).
In Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), the Supreme Court wrote that a trial court must exclude “those biased persons on the venire who as jurors would unwaveringly impose death after a finding of guilt.” Id. at 2232. And, a trial court has a duty to question (or allow questioning of) prospective jurors to ensure that a person who would automatically vote for the death penalty is disqualified. See id. at 2230-31. Critical to the resolution of this claim is the Morgan court's discussion of the kinds of questions that a defendant must be allowed to ask to allow the defendant to illustrate for the court which jurors were inalterably in favor of the death penalty. The extent of the Morgan court's holding on this issue is only that generalized “can you be fair?” and “can you follow the law?” questions are insufficient. See id. at 2233-34. The jurors in Morgan were never specifically asked whether they understood that “being fair” and “following the law” might mean returning a life verdict.
This case presents different facts. It is true that many of the challenged jurors expressed strong support for the death penalty; and some even initially suggested that, for certain crimes, they thought they would always return a death recommendation. Each juror, however, upon being instructed by the trial court on the law of Florida, not only said that he or she could be fair and follow the law, but also stated that he or she could return a life imprisonment recommendation if the facts and the law warranted it. In addition, each juror indicated, in response to questioning by the prosecution, that it would not be fair to defendants if juries returned a death recommendation in every case. We are aware of no Supreme Court case, and Petitioner has cited none, that has held that such a fact pattern requires reversal. And, we do not consider the Florida Supreme Court's conclusion to have been an unreasonable application of Morgan or any other Supreme Court case decided before the Florida Supreme Court's decision.
IV. Consideration of Invalid Aggravating Factor
Petitioner also claims that the trial court committed error by considering, and allowing the jury to consider, that he was the triggerman. Error does exist where the sentencer relies upon an invalid factor. See Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 1866, 100 L.Ed.2d 384 (1988). In this case, Petitioner argues that his being the triggerman was an invalid consideration because it is not supported by the evidence. In making this argument, Petitioner relies upon the Florida Supreme Court's ruling on his direct appeal, where the court ruled that insufficient evidence existed to prove that Van Poyck was the triggerman. See Van Poyck I, 564 So.2d at 1069. As the Florida Supreme Court noted, however, another basis for the imposition of the death penalty existed: felony murder. The felony murder argument was supported by the evidence and is a sufficient basis for imposing the death penalty. See id. at 1070-71. The Florida Supreme Court's ruling sustaining the imposition of the death penalty was not unreasonable.
Where, as here, a jury is presented with two theories of the case, one supported by the evidence and the other not, we should presume that the jury relied on the supported theory. See Sochor v. Florida, 504 U.S. 527, 112 S.Ct. 2114, 2122, 119 L.Ed.2d 326 (1992). We have no good reason to think that the jury relied on something more than the factually supported theory of felony murder. Petitioner points to the jury's verdict form from the guilt phase of the trial, which indicates that at least one-but not all-of the jurors would have convicted Petitioner on the basis of premeditated murder. The question, however, is what the jury considered at the penalty phase of the trial. In deciding this question, it seems useful to look at the closing arguments made during the penalty phase. As discussed above, whether Petitioner was actually the triggerman was of only minimal importance during the prosecutor's closing. Never did the prosecutor argue triggerman status as an aggravating factor that would justify the death penalty. And, in rebutting Petitioner's argument that Petitioner's minor role in the crime should be considered a mitigating factor, the prosecutor focused chiefly on Petitioner's role in orchestrating and planning the crime, not on whether Petitioner was the triggerman. The prosecutor's expressed argument was that Petitioner deserved death whether or not Petitioner was the triggerman.
Petitioner also argues that the trial court improperly relied upon his being the triggerman. Again, the Florida Supreme Court's rejection of these claims was not unreasonable. The sole indicator that the trial court considered Petitioner to be the triggerman is a passage in the order imposing the death penalty, in which the trial court stated “the State clearly presented competent and substantial evidence as to the crime of first degree felony murder and/or first degree pre-meditated murder and in reality presented competent evidence that [Petitioner] may have in fact been the individual who pulled the trigger and shot Fred Griffis.” The trial court never stated that it found Petitioner, in fact, to have been the triggerman or that the court considered Petitioner's triggerman status to be an aggravating factor justifying the death penalty. The only aggravating factors the trial court found to exist were the four argued by the prosecutor in his closing, and none of those factors is based upon triggerman status.
In arguing that the trial court's alleged error requires reversal of the death penalty, Petitioner relies heavily on our decision in Delap v. Dugger, 890 F.2d 285 (11th Cir.1989). In Delap, the trial court at defendant's first trial had rendered a judgment of acquittal on a charge of felony murder. Then at the sentencing phase of the defendant's retrial (at which he had been convicted of premeditated murder), the court had imposed a death sentence. The trial court explicitly relied on the specific statutory factor that the murder occurred during the commission of a felony. See Delap, 890 F.2d at 307. The elements and burden of proof for felony murder as a basis for conviction and for “murder in the course of a felony” as an aggravating factor were almost identical. We declared that the imposition of the death penalty on such a basis violated the double jeopardy clause. See id. at 317-19.
Here, the facts are significantly different.FN13 The prosecutor did not argue triggerman status as an aggravating factor. And in listing the aggravating factors it had determined to be present, the trial court only listed the four factors argued by the prosecutor; triggerman status was not mentioned as an aggravating factor. That the trial court concluded that the prosecution had “presented competent evidence that [Petitioner] may have in fact been the individual who pulled the trigger and shot Fred Griffis” does not mean that the trial court had found, beyond a reasonable doubt, that Petitioner was the triggerman. And, it certainly does not mean that the trial court relied upon Petitioner's role as triggerman as some kind of aggravating factor. As such, the rule of Delap has not been violated, and Petitioner has made no showing that the Florida Supreme Court's rejection of his claim was unreasonable. Petitioner's petition for a writ of habeas corpus on this ground must therefore be denied.
FN13. We again stress that, even if the underlying facts of Delap were identical to the underlying facts of this case, Petitioner would still not necessarily prevail. Petitioner's burden is to show that the Florida Supreme Court's opinion was an unreasonable application of federal law according to the United States Supreme Court. Reasonable judges can disagree on the proper interpretation of the United States Supreme Court's precedents; a state court ruling that is contrary to Eleventh Circuit law might still be a reasonable application of Supreme Court precedent.
Based upon the above considerations, we conclude that the district court's denial of a writ of habeas corpus was proper. The judgment of the district court is affirmed. AFFIRMED.