Bush v. DuggerBush v. Dugger
Bush raised four claims in this petition. First, he argues that the prosecutor committed reversible error in the closing argument during the penalty phase and that he is entitled to relief under the United States Supreme Court‘s decisions in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989). Bush‘s attorney objected to the argument and raised the issue on appeal. In that decision this Court stated:
[Bush] argues that during the sentencing phase the prosecutor made an appeal for sympathy and revenge for the family of the victim in the following statement to the jury:
“I ask you, don‘t consider the sympathy that Mr. and Mrs. Campbell have. Don‘t consider that when Mr. and Mrs. Campbell sit down to Thanksgiving dinner just three days from now that they are going to look across the table and they are going to look at Cathy and they are going to see Frances Julia Slater, the identical twin sister. If sympathy had any part of it, think of what they go through. And every time they sit down and look at her, this whole incident is going to come back ...”
Bush contends that this appeal for retribution was devastating inasmuch as the jury vote was 7-5 in favor of imposing the death penalty. We disagree. We have previously held that although “the rule against inflammatory and abusive argument by a state‘s attorney is clear, each case must be considered upon its own merits and within the circumstances pertaining when the questionable statements are made....” Darden v. State, 329 So.2d 287, 291 (Fla. 1976), cert. dismissed, 430 U.S. 704, 97 S.Ct. 1671, 51 L.Ed.2d 751 (1977).
... . We find that the above appeal to the jury‘s sympathies was of minor impact and does not merit resentencing. The statements are not a clear abuse, nor do they rise to the magnitude of a denial of fundamental fairness.
Bush, 461 So.2d at 941-42. Because we did not have the benefit of Booth and Gathers when we first considered this case, we have decided to reconsider this claim under those decisions.2
The Supreme Court again considered Booth error in Gathers. During the sentencing phase closing arguments in Gathers the prosecutor read extensive portions of a printed prayer as well as emphasizing other religious objects and a voter registration card all found in the victim‘s possession. Gathers, 490 U.S. at 808-10, 109 S.Ct. at 2209-10. The Court held that this argument violated Booth because it focused the jury‘s attention on the victim‘s personal qualities and characteristics, factors about which the defendant was unaware. Id., 490 U.S. at 811, 109 S.Ct. at 2210-11. The information was not relevant to the circumstances of the crime nor to the defendant‘s moral culpability. Id. at 811-12, 109 S.Ct. at 2210-11.
In comparison to the extensive victim impact evidence presented to the juries in Booth and Gathers, in this case the prosecutor made only one comment about how the family would miss the victim during an upcoming holiday. The single comment in this case cannot compare in impact to that created by the victim impact statement in Booth or the use of the prayer in Gathers. The comment did not impermissibly emphasize the victim‘s personal qualities or the family‘s opinions and characterizations of the crime. The comment was only a single statement about the family‘s loss, a loss that juries are generally aware that families feel when a family member is murdered. Although the comment was improper, we can say beyond a reasonable doubt that the jury‘s recommendation would have been no different had it not heard this statement. See Jackson v. Dugger, 547 So.2d 1197 (Fla. 1989).3
Bush‘s next claim is that this Court should vacate his death sentence and impose a sentence of life imprisonment because the sentencing judge failed to issue a contemporaneous written sentencing order with his oral announcement of sentence.4 This claim is procedurally barred. Parker v. Dugger, 550 So.2d 459 (Fla. 1989). We also note that Bush‘s sentencing preceded our decision in Grossman v. State, 525 So.2d 833 (Fla. 1988), cert. denied, 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822 (1989), and comported with the sentencing requirements we set out in Stewart v. State, 549 So.2d 171 (Fla. 1989), cert. denied, ___ U.S. ___, 110 S.Ct. 3294, 111 L.Ed.2d 802 (1990).
Bush next argues that the cold, calculated, and premeditated aggravating factor was improperly applied. This claim
Finally, Bush claims that he is entitled to relief because the penalty phase jury instructions unconstitutionally shifted the burden of proof to him to prove death was not the appropriate penalty. This claim is procedurally barred because Bush did not object to the instructions at trial. We also note that the instructions were not erroneous. Bertolotti v. Dugger, 883 F.2d 1503 (11th Cir. 1989), cert. denied, ___ U.S. ___, 110 S.Ct. 3296, 111 L.Ed.2d 804 (1990).
We deny the petition for habeas corpus.
It is so ordered.
SHAW, C.J., and OVERTON, McDONALD, BARKETT, GRIMES, KOGAN and HARDING, JJ., concur.