Stephen Todd BOOKER, Appellant,
v.
STATE of Florida, Appellee.
Supreme Court of Florida.
*188 Harry P. Brody and Jeffrey M. Hazen of Brody and Hazen, P.A., Tallahassee, FL, for Appellant.
Bill McCollum, Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, FL, for Appellee.
PER CURIAM.
This case is before the Court on appeal from an order denying a motion to vacate under Florida Rule of Criminal Procedure 3.851. The order concerns postconviction relief from a sentence of death, and this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution.
FACTS AND PROCEDURAL BACKGROUND
Stephen T. Booker was convicted of the 1977 first-degree murder and sexual battery of Lorine Demoss Harmon, a ninety-four-year-old woman, and also the crime of burglary. See Booker v. State,
The victim, an elderly woman, was found dead in her apartment in Gainesville, Florida. The cause of death was loss of blood due to several knife wounds in the chest area. Two knives, apparently used in the homicide, were embedded in the body of the victim. A pathologist located semen and blood in the vaginal area of the victim and concluded that sexual intercourse had occurred prior to death. The apartment was found to be in a state of disarray; drawers were pulled out and their contents strewn about the apartment. Fingerprints of the defendant were positively identified as being consistent with latent fingerprints lifted from the scene of the homicide. The defendant had a pair of boots which had a print pattern similar to those seen by an officer at the scene of the homicide.
Test results indicated that body hairs found on the clothing of the defendant at the time of his arrest were consistent with hairs taken from the body of the victim.
After being given the appropriate warnings, the defendant made a statement, speaking as an alternative personality named "Aniel." The "Aniel" character made a statement that "Steve had done it."
Id. at 1081-82 (quoting Booker v. State,
The court found two statutory mitigating circumstances: (1) Booker committed the capital felony while he was under the influence of extreme mental or emotional disturbances (great weight); and (2) Booker's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired (substantial weight). Finally, the court found nine nonstatutory mitigating circumstances: (1) Booker was sexually abused as a child (substantial weight); (2) Booker was physically abused as a child (substantial weight); (3) Booker was verbally abused as a child (moderate weight); (4) Booker's family life was inconsistent (moderate weight); (5) Booker's education was interrupted repeatedly (slight weight); (6) Booker suffered from alcohol and drug abuse (moderate weight); (7) while in prison, Booker substantially improved his ability to be a productive citizen and to produce creative valuable contributions to American Literature (little weight); (8) Booker demonstrated his remorse and attempted to atone for his crime (little weight); and (9) Booker was honorably discharged from the United States Army (slight weight). [N.10]
[N.10] The trial court considered, but gave no weight to, the statements made by Mrs. Zyromski and other members of the victim's family, which urged that Booker be sentenced to life in prison.
Id. at 1086. On appeal, this Court affirmed Booker's sentence. See id. at 1081, 1096.
On May 18, 2004, Booker filed a motion for postconviction relief in which he asserted the following claims: (1) counsel was ineffective because (a) two jurors who said they would not consider mitigating evidence remained on the jury simply because they were African-Americans;[2] (b) available factual evidence with regard to Booker's prior violent felony conviction was not presented, which would have demonstrated to the jurors that the charge actually constituted mitigation instead of aggravation; (c) no objection was made under Crawford v. Washington,
After a Huff[3] hearing was held, the trial court issued an order granting an evidentiary hearing on Claim II, allowing Booker to amend Claims I(a), (b), and (d), and summarily denying the remainder of Booker's motion. On January 15, 2005, Booker filed an amendment to his postconviction motion. The trial court held a second Huff hearing on Booker's amendment and issued a subsequent order summarily denying Claims I(a), (b), and (d).
On September 16, 2005, the trial court held an evidentiary hearing on Claim II, in which Booker had alleged that the State had improperly interfered with his mail. During the evidentiary hearing, Assistant State Attorney Ralph Grabel testified that he was not aware of a "mail cover" being placed on Booker's correspondence,[4] that he had never read Booker's mail, and that he was unaware of anyone else in the State Attorney's Office reading Booker's mail. Booker's counsel then presented to Grabel a memo from an investigator for the State (Michael "Mick" Price)[5] addressed to Grabel and his co-prosecutor, Rod Smith, stating that an employee at Florida State Prison "asked whether or not we wanted mail cover on BOOKER. I declined the offer on the expectation that Johnny Kearns [Booker's attorney on resentencing] would eat us alive if he found out. If you believe otherwise, I'll simply call Ruise back and *191 he'll handle it." Grabel was also shown other dated entries in the memo by Price referencing "mail cover." In one entry, Price wrote that "on 3-28-97, before leaving FSP, I picked up another collection of letters obtained under mail cover." In another, Price wrote:
On 4-10-97, while in the Starke areas hunting GASKINS, I drove past FSP and picked up another packet of mail cover. On 4-11-97, while reviewing the above mail cover, I ran across a letter written by BOOKER to Betty VOGH (a Gainesvillian who expects to be called as a witness) which informs VOGH of the "scuttlebutt" that the officers ". . . originators of the lies [Re: hand up dress incident] . . . have received suspensions on an unrelated incident."
Grabel testified that prior to seeing the memo, he would have said that no discussion of "mail cover" had ever occurred. However, he conceded during the hearing that there was apparently a memo sent to him discussing, among other issues, "mail cover." Grabel verified that Price had been sent to the prison by then-State Attorney Smith to obtain information about other incidents of a disciplinary nature that could be used to rebut the defense's argument that Booker is now a literary person and that his life was worth saving. However, Grabel reiterated that he has never utilized "mail cover" to gain a benefit for the State, and that he did not direct anyone to intercept any attorney-client privileged mail of Booker.
Rod Smith testified that while he was a state attorney, there were certain circumstances under which he would have authorized the use of "mail cover"; however, he did not request a mail cover on Booker's mail during the resentencing proceedings because it was not necessary. Smith verified that as lead counsel in the case, if "mail cover" were to be ordered, it would have been he (Smith) who would have authorized the procedure, and he did not. When Smith reviewed the memos from Mick Price, he conceded that it appeared that some form of "mail cover" of Booker's mail had occurred, but he reiterated that he did not authorize it, and if it had occurred, it was conducted without his authority. Smith also testified that the first time he had seen the memo from Price referencing the "mail cover" was the week of the evidentiary hearing. Smith asserted that, to his knowledge, the State Attorney's Office did not monitor Booker's mail, and he had never personally reviewed any mail that had been copied or taken from Booker.
The role of Mick Price in the Booker resentencing proceedings was to interview witnesses, and he did not recall any form of "mail cover" on Booker's mail. However, when Price reviewed the memo that he directed to Smith and Grabel, he conceded that it appeared that he had obtained some of Booker's prison mail. He stated that if he had been picking up "mail cover," he would have delivered it to the State Attorney's Office because he was working there at the time. However, he testified that the memo did not look familiar to him, and he had no recollection of reading Booker's mail. Further, on cross-examination, he testified that he did not recall having any conversations with Grabel or Smith with regard to "mail cover," he did not recall being asked to obtain "mail cover," and he did not recall bringing any mail back to the State Attorney's Office.
To rebut Booker's claims of tampering with legal mail, the State presented attorney Johnny Kearns, who represented Booker during resentencing. Attorney Kearns testified that his office was close to Florida State Prison, and either he or one of his investigators delivered all legal documents and mail to Booker by hand. *192 Kearns stated that he would observe the prison officials check the legal documents for contraband, and then they would hand the materials to Booker. Kearns stated that he only sent two letters to Booker through the mailthe first contained a money order for stamps, and the second addressed a court status conference and informed Booker that his case had been continued. Kearns testified that Booker had authored approximately fifty letters to him. Booker would write across the back of the envelope where it was sealed either the words "legal mail" or a series of X's across the seam. Kearns testified that it was his understanding that Booker was attempting to ensure that any tampering with his legal mail could be observed and identified. Kearns testified that he saw "no visible tampering or opening of the mail from the time they were sealed to the time that I received them." Kearns saw no signs of any tampering. Kearns further stated that at no time did he have concerns that the State had improperly obtained any information that was then used to subvert his strategy in representing Booker. Kearns testified that he would have objected to a State investigator obtaining privileged mail and reporting its contents to the prosecution. Kearns stated that he was not aware that Price had been picking up Booker's letters obtained under "mail cover." Upon reading the entry which discussed the letter from Booker to Betty Vogh, Kearns testified that if he had known about Price's actions, he would have inquired as to why the State was reading Booker's mail; however, he also recognized that the "letter from Mr. Booker to Ms. Vogh is not legal mail."
On November 22, 2005, the trial court entered an order denying Claim II. The trial court concluded that Booker had failed to present any evidence of tampering with his legal mail. The trial court concluded that Grabel and Smith were highly credible witnesses and accorded great weight to their testimony that they did not direct that Booker's mail be intercepted or opened and that they had not read any of Booker's mail. Although the trial court concluded that Mick Price was "quite a bit older and his memory . . . was perhaps not as good as it used to be," it accepted his testimony that he did not tamper with Booker's legal mail. Finally, in reaching the determination that no tampering with legal mail occurred, the trial court relied on the testimony of Kearns, who "went out of his way to keep Mr. Booker from being concerned about mail tampering by hand delivering any communications."
Booker appeals the denial of his rule 3.851 motion.
ANALYSIS
"Mail Cover"
The case upon which Booker relies to contend that the attorney-client privilege was violated when an agent of the State intercepted his mail is Weatherford v. Bursey,
[W]e need not agree with petitioners that whenever a defendant converses with his counsel in the presence of a third party thought to be a confederate and ally, the defendant assumes the risk and cannot complain if the third party turns out to be an informer for the government who has reported on the conversations to the prosecution and who testifies about them at the defendant's trial. Had Weatherford testified at Bursey's trial as to the conversation between Bursey and Wise [Bursey's counsel]; had any of the State's evidence originated in these conversations; had those overheard conversations been used in any other way to the substantial detriment of Bursey; or even had the prosecution learned from Weatherford, an undercover agent, the details of the Bursey-Wise conversations about trial preparations, Bursey would have a much stronger case.
Id. at 554,
As the above analysis demonstrates, the Weatherford case addressed actual attorney-client communications; it did not involve Bursey speaking with or writing to a layperson. Further, the decisions which discuss the constitutional implications of intercepting inmate mail focus on legal mail rather than on correspondence with laypeople. See generally Davis v. Goord,
In the order denying postconviction relief, the trial court made very specific findings with regard to whether tampering with Booker's legal mail had occurred:
The Defendant has failed to present any evidence demonstrating the Defendant's legal mail was tampered with by any agent of the State. The Defendant, likewise, failed to present any evidence that privileged communications, in any form, were impermissibly intercepted, interfered with, or used by any agent of the State. Not only does the evidence not support the Defendant's claim his legal mail was tampered with or that the State knowingly interfered with his attorney-client relationship, there is a great deal of evidence to support it was not.
Following the denial of a postconviction claim where the trial court has conducted *194 an evidentiary hearing, this Court affords deference to the trial court's factual findings. See Walls v. State,
We conclude that the trial court's finding that neither the State nor its agent, Investigator Mick Price, tampered or interfered with Booker's legal mail is supported by competent, substantial evidence. Although the extensive facts developed during the evidentiary hearing reveal that some sort of "mail cover" may have occurred, and that Price may have retrieved mail from Florida State Prison, Booker has failed to identify a single piece of legal mail that was intercepted or touched by Price. Booker speculates that Price had collected some of Booker's mail, and, therefore, "all mail in and all mail out of FSP was compromised by the `mail cover.'" However, Booker offers absolutely no substantive proof to support this conclusory statement. Further, even if we were to assume that Price did collect some of Booker's legal mail under the "mail cover," coprosecutors Rod Smith and Ralph Grabel denied ever having read any of Booker's mail, let alone his legal mail, and the trial court found their testimony to be credible. Cf. Pietri v. State,
Further, the most compelling evidence that the State did not access Booker's legal mail was presented by Booker's resentencing counsel, Johnny Kearns. Kearns testified that he or one of his investigators had actually hand-delivered all but two pieces of correspondence to Booker, and the two pieces of mail that were sent to the prison did not contain any information with regard to the defense strategy. Moreover, Kearns testified that Booker took heightened precautions to ensure that his mail was not tampered with by writing either "legal mail" or a series of X's across the seal of the envelope, and Kearns saw "no visible tampering or opening of the mail from the time that they were sealed to the time that [he] received them." Kearns stated that had he suspected that the State was tampering with Booker's legal mail, he would have objected because he "would definitely have gotten concerned about" the interception of legal mail.
Competent, substantial evidence supports the trial court's conclusion that the State did not access, tamper with, or interfere with Booker's legal mail, and we affirm the trial court's denial of Booker's Weatherford claim.[6]
Abandoned Claims
When a defendant fails to pursue an issue during proceedings before the *195 trial court, and then attempts to present that issue on appeal, this Court deems the claim to have been abandoned or waived. See Mungin v. State,
Claims Denied Without an Evidentiary Hearing
Because the decision whether to grant an evidentiary hearing on this postconviction motion below was ultimately based on written materials before the court, the ruling was tantamount to a pure question of law, subject to de novo review. See State v. Coney,
I. The Prior Violent Felony Aggravator. Booker contends that the trial court erred in summarily denying his claim that counsel was ineffective for failing to present evidence regarding the inapplicability of the prior violent felony aggravator in this case. In 1980, Booker committed an aggravated battery when he threw a flaming substance at a former Florida State Prison guard and burned him. Booker contends that had the trial court ordered an evidentiary hearing on this claim, Booker would have presented witnesses who would have described the context in which this "fire-bomb" incident occurred. Booker asserts that if counsel had presented this testimony to the jury, it would have viewed Booker's actions in a more sympathetic context and would have viewed his conviction for aggravated battery *196 as evidence in mitigation rather than aggravation.
To establish a claim of ineffective assistance of trial counsel for failing to call certain witnesses, a defendant must allege in the motion "what testimony defense counsel could have elicited from [the] witnesses and how defense counsel's failure to call, interview, or present the witnesses who would have so testified prejudiced the case." Nelson v. State,
In his initial motion, Booker failed to allege the names of the witnesses he would have presented to testify with regard to the alleged "fire-bomb" incident which resulted in his conviction for aggravated battery. In accordance with Nelson, the trial court provided Booker with an opportunity to amend this claim. In his amendment, Booker proceeded to name himself, inmate Gary Trawick, and inmate William White as witnesses who might testify as to the alleged threats that the guard had made against Booker in the context of a "guard riot" that occurred after an inmate had fatally stabbed a prison guard. Booker also named attorney Susan Cary, a death row liaison from the Palm Beach County public defender's office, who would have testified that litigation may have stemmed from the guards' post-stabbing conduct.
We conclude that the trial court properly denied this claim without an evidentiary hearing because this claim as amended was still insufficiently pled. In the amended motion, Booker made equivocal statements about the substance of the witnesses' testimony. For example, Booker stated that "inmates Trawick and White might have testified to the threats which the guard, Mr. Thomas, made against Mr. Booker." (Emphasis supplied.) With regard to attorney Cary, Booker stated that Cary "believes that there may have been litigation stemming from the guards' post-stabbing conduct which the Department of Corrections may have settled." (Emphasis supplied.) Thus, while not totally speculative, there is clearly a lack of specificity as to the substance of the testimony that these witnesses would have offered. Cf. Bryant v. State,
Moreover, even if this claim had been sufficiently pled, we conclude that Booker still would not have been entitled to relief. The record of the resentencing proceedings demonstrates that the State initially sought to present multiple witnesses to expand upon the "fire-bomb" incident, including an expansion upon possible motives involved in the incident. Counsel for Booker objected to this expansion, contending that the additional testimony *197 would cause the prior violent felony to become a feature of the trial. The trial court agreed, concluded that the prejudice of this type of testimony would outweigh any probative value, and sustained the objection. The trial court further sustained objections to the presentation of testimony with regard to the medical treatment that the guard received for his burns and the length of time that he was hospitalized for the injuries. The trial court only allowed testimony with regard to the incident itself.
Thus, the trial court precluded the introduction of evidence with regard to matters prior to the attack or after the attack and when the guard was transported to the hospital. Given the strict parameters established by the trial court with regard to the admission of evidence of the "firebomb" incident, we conclude that, had counsel for Booker attempted to introduce expanded testimony that attempted to address broad circumstances and motives under which the incident may have occurred, it similarly would have been precluded by the trial court. Therefore, we conclude that trial counsel was not ineffective for failing to offer witnesses to present this testimony. See generally Marquard v. State,
II. Counsel's Failure to Investigate and Present Mitigation. Under this claim, Booker alleged that his counsel was ineffective for failing to offer evidence of the full scope of Booker's accomplishments as an influential figure on the literary scene. According to Booker, his counsel failed to educate himself on the topic of poetry. As a result, counsel could not effectively respond to the State's assertion that a poet should not be treated differently than anyone else. Booker contended that, had counsel been better prepared, he could have shown that sparing Booker's life has precedence in literature.
As with the prior issue, when Booker initially raised this claim in his 3.851 motion, he did not name the witnesses that defense counsel should have called, and he failed to outline the specific substance of their testimony. Rather, Booker made general statements such as the following:
Counsel failed to present available evidence of the full scope and extent of Mr. Booker's accomplishment as an influential figure on the national and international literary "scene." Numerous witnesses could have been called to explain to the jury Mr. Booker's accomplishment in this regard, as could exhibits of Mr. Booker's work, which would have explained the person in a unique and powerful fashion.
As with the prior violent felony claim, the trial court provided Booker with an opportunity to amend his motion with respect to this issue. In his amendment, Booker named six witnesses, stating that they would educate the jury on the literary tradition into which Booker's work fits and more accurately educate the jury on his contributions to the rich vein of American and international letters into which his works feed and from which he has derived his themes. He also asserted that three additional witnesses who were experts on the poet Ezra Pound could have been called "to show why and how [Pound] had been freed from a death sentence." In denying this claim, the trial court stated during the Huff hearing:
I've already indicated that the weight to be given to this particular mitigating circumstance is extremely slight. The fact that one has learned a skill, whether it's poetry or cabinet-building or whatever it may be, the practice of law, is not a reason not to impose the death penalty.
*198 If Shakespeare committed this crime, regrettably, I think we would be missing a lot of enjoyable plays. You're not excused from following the law because, especially after the fact, you become adept at some skill.
In the order summarily denying this claim, the trial court elaborated:
During the penalty phase, trial counsel presented more than ample evidence of Defendant's literary accomplishments while on death row. This Court placed little weight on this evidence. Any alleged failure to present additional and cumulative testimony would have not resulted in a life sentence.
As with the prior issue, we conclude that the instant claim was insufficiently pled under Nelson. Booker failed to specify what the precise testimony of each of these witnesses would have been, how their testimony would have differed from the six poetry experts who testified during Booker's resentencing, or how counsel was deficient in selecting those six experts who did testify.
Moreover, even if this claim had been sufficient, Booker cannot demonstrate that his counsel was ineffective. Following the United States Supreme Court's decision in Strickland v. Washington,
First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.
Maxwell v. Wainwright,
(1) Professor Deborah Tall, professor of English at Hobart and William Smith College, as well as editor of Seneca Review; (2) Ms. Suzann Tamminen, Editor-In-Chief at Wesleyan University Press; (3) Professor Hayden Carruth, Professor Emeritus at Syracuse University (by video); (4) Professor Stuart Lavin, writer and professor at Castleton State College; (5) Professor Stuart Friebert, poet and professor at Oberlin College; and (6) Professor Williard Spiegleman, professor of English at Southern Methodist University.
Booker,
Professor Tall testified that Booker is "a remarkably original writer and very, very skilled in his use of language," that he "has tremendous insight into character, into his own and others," and that "he writes like no one else. I mean, very very valuable poems." She also testified that Booker's book "Tug" earned the endorsement of the first African-American to win the Pulitzer Prize, Gwendolyn Brooks. Professor Hayden Carruth made the following statements via videotape with regard to Booker as a poet:
I don't think of anyone else whom I would compare with him. I can't think of other people who had done work similar to his, in somewhat similar situations, particularly in recent years. Black writers who have also been in *199 prison, people like Ethridge Knight (phonetic). But also black writers who have not been in prison.
. . . .
People are interested in him. He is doing work that is on the one hand significantly connected to the work of his colleagues, black writers, and on the other hand, new and different and original. (Inaudible). In that sense I think he is comparable to a good many poets.
When asked what Booker's place is in the literary community, Carruth responded: "He's a person of consequence, he's a person of great intelligence and perception." Professor Lavin testified that Booker's style was "visionary" and that Booker "transmutes . . . language. He actually transforms it. So when you read his work, it evokes something beyond just what the words themselves say." Professor Friebert testified with regard to Booker's involvement in translating the work of "arguably Albania's most important poet" into English. Professor Friebert also read one of Booker's poems, titled "Prospectus," to the jury. Finally, on cross-examination, Friebert verified that poet Ezra Pound was prosecuted as a traitor, but was later pardoned due to the intercession of individuals who admired his work.
Trial counsel is not deficient for failing to present cumulative evidence. See Duckett v. State,
III. Jury Instruction. Booker next claims that the trial court erred in summarily denying his claim that the failure to give an instruction to the jury regarding the amount of time that Booker was facing in prison if he received a life sentence violates equal protection. This claim is procedurally barred because claims that address the adequacy or constitutionality of jury instructions must be raised on direct appeal. See Rodriguez v. State,
IV. Crawford. Booker next claims that the trial court erred in summarily denying his claim that that the presentation of hearsay materials to the jury violated Crawford v. Washington,
V. Length of Incarceration. Booker contends that the trial court erred in summarily denying his claim that his incarceration for almost thirty years on death row constitutes cruel and unusual punishment. We conclude that the trial court properly denied this claim without an evidentiary hearing. Booker has already asserted on direct appeal that "to execute him after he has already spent over two decades on death row would constitute cruel and unusual punishment under the Eighth Amendment to the Constitution of the United States." Booker,
VI. Newly Discovered Evidence. In his final claim, Booker asserts that the trial court erred in summarily denying his claim that newly discovered evidence has emerged which demonstrates that to execute him at this time would serve no legitimate penological purpose and would infringe upon the First Amendment right of the public to continue reading his work. In this claim, Booker contends that his literary talent has continued to mature, and that numerous editors would testify to the value of preserving his unique and important voice. According to Booker, the American public has acquired an interest in his work, such that the public's interest in vengeance is outweighed by its interest in benefiting from Booker's literary voice. Booker asserts that because of the great benefits to society that he can offer, his life should be spared.
We conclude that the trial court properly denied this claim without an evidentiary hearing. Booker has cited no decision, Florida or otherwise, for the proposition that a death row inmate's literary accomplishments constitute newly discovered evidence *201 that mandates vacation of a death sentence. Booker similarly provides no legal support for his First Amendment claim. Therefore, we affirm the summary denial of this claim.
CONCLUSION
For the foregoing reasons, we affirm the trial court's denial of the rule 3.851 motion.
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.
NOTES
Notes
[1] In Hitchcock v. Dugger,
[2] Booker later amended this claim to reflect that only one juror remained on the jury solely because of her race.
[3] Huff v. State,
[4] In the instant proceedings, the term "mail cover" appears to be used to describe a procedure in which the mail of inmates is monitored by prison staff.
[5] Prior to working for the State, Price was employed by the Gainesville Police Department.
[6] Further, even if Booker had successfully established that the State had intruded into Booker's attorney-client relationship, he would not be entitled to relief under Weatherford unless he could show "prejudice in terms of injury to the defendant or benefit to the State." Pietri,
[7] Instead, Booker specifically requested leave to amend only Claims 1(a) (the juror challenge), 1(b) (the circumstances surrounding Booker's prior felony aggravator), and 1(d) (the failure to present available mitigation).
[8] Although Nelson was a noncapital case that involved Florida Rule of Criminal Procedure 3.850, we have applied the pleading requirements enunciated in Nelson to rule 3.851 motions to vacate. See Bryant v. State,