Ford v. WainwrightFord v. Wainwright
We have before us a petition for habeas corpus and an application for stay of execution in оrder to allow a hearing to determine petitioner‘s competency. We have jurisdiction.
The petitioner was convicted in the Circuit Court of the Seventeenth Judicial Cirсuit on December 17, 1974, for the first-degree murder of a Fort Lauderdale police officer. The jury recommended death, and the trial court imposed a sentence of death on January 6, 1975. This Court affirmed petitioner‘s conviction and sentence of death in Ford v. State, 374 So.2d 496 (Fla. 1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980).
Petitioner then filed a motion to vacate or set aside the judgment pursuant to
Petitioner‘s subsequent petition for writ of habeas corpus was denied by the United States District Court for the Southern District of Florida. Uрon appeal, a divided panel of the United States Court of Appeals for the Eleventh Circuit affirmed the district court‘s denial of relief. Ford v. Strickland, 676 F.2d 434 (11th Cir.1982). Rehearing en banc was granted, and the en banc court affirmed the district court‘s judgment. Ford v. Strickland, 696 F.2d 804 (11th Cir.1983). Certiorari was denied in Ford v. Strickland, ___ U.S. ___, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983).
Thereafter proceedings to determine petitioner‘s mental competency were instituted pursuant to
In addition to the proceedings that were instituted on behalf of petitioner pursuant to
Petitioner rаises two issues in his petition for writ of habeas corpus. The first of these concerns a jury instruction given to the jury in the sentencing phase that its advisory verdict of either life imprisonment оr death must be reached by a majority vote of the jury. Specifically, petitioner argues that intervening law has established that such an instruction is erroneous, and that but for the erroneous instruction the jury‘s verdict “most probably” would have been for life imprisonment.
This alleged error occurred during the sentencing proceeding in the trial court and
An application for writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this rule, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.
In his first motion for post conviction relief in late 1981, petitioner raised other challenges to the instructions given during the sentencing phase, but did not raise this issue. Thus, petitioner is not entitled to raise the issue here. See Johnson v. State, 185 So.2d 466, 467 (Fla. 1966); Finley v. State, 394 So.2d 215, 216 (Fla. 1st DCA 1981); Darden v. Wainwright, 236 So.2d 139 (Fla. 2d DCA 1970).
Furthermore, petitioner‘s reliance on Rose v. State, 425 So.2d 521 (Fla.), cert. denied, ___ U.S. ___, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983), and Harich v. State, 437 So.2d 1082 (Fla. 1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984), is misplaced. This Court has recently clarified that the error which petitioner alleges here requires an objection at trial before relief can be granted on direct appeal. See Rembert v. State, 445 So.2d 337, 340 (Fla. 1984); Jackson v. State, 438 So.2d 4, 6 (Fla. 1983). The excerpt from the transcript of the sentencing phase of petitioner‘s trial which is appended to the instant petition shows that there was no objection to the instruction in the trial court. Thus, any alleged error in the contested jury instruction has been waived by the lack of a contemporaneous objection at trial, and any relief in this proceeding is precluded by the well-established rule that habeas corpus may not be used as a vehicle to raise for the first time issues which could or should have been raised at trial and on appeal. McCrae v. Wainwright, 439 So.2d 868, 870 (Fla.), cert. denied, ___ U.S. ___, 103 S.Ct. 2112, 77 L.Ed.2d 315 (1983); Hargrave v. Wainwright, 388 So.2d 1021 (Fla. 1980).
Additionally, the instructions given to the jury accurately tracked the statute that was in effect at the time and that remains unchanged. It was a change in the standard jury instructions which prompted our decision in Harich. However, this Court has held that the Harich cаse does not constitute a change in the law which will merit relief in a collateral proceeding under the rule of Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). Jackson, 438 So.2d at 6.
Moreover, as we held in Harich and Jackson, the record in this case does not establish that petitioner was prejudiced by the instructions as delivered. Petitioner attempts to construct his claim of prejudice based almost entirely upon the response by one juror as the jury was being polled regarding whether the verdict was by a majority vote of the jury, one juror responded: “The second time it was.” From this response petitioner reasons that initially а majority of the jury did not vote for the death penalty, and then builds to a conclusion that “the erroneous instruction was determinative of the outcome... .” However, it is well known that juries often take an initial vote to see where the members stand in order to channel their discussion. The mere fact that a second vote was taken does not establish anything in this rеcord to indicate that the jury felt compelled to reach a conclusion that they would not otherwise have reached. Petitioner‘s assertion to that fact is basеd purely upon conjecture, but this Court has stated that reversible error cannot be predicated on conjecture. See Sullivan v. State, 303 So.2d 632, 635 (Fla. 1974), cert. denied, 428 U.S. 911, 96 S.Ct. 3226, 49 L.Ed.2d 1220 (1976).
Petitioner‘s second claim in this proceeding is thаt the death penalty is applied in Florida in an arbitrary and discriminatory manner on the basis of race, geography, etc., in violation of the eighth and
Petitioner‘s counsel has also filed a separate brief in this proceeding requesting this Court to remand for a hearing in the circuit court to determine whether petitioner is presently insane. Petitioner argues that a separate judicial determination of sanity must be made apart from the statutory procedure in
In Goode v. Wainwright, 448 So.2d 999 (Fla. 1984), we addressed this issue, agreed “that an insane person cannot be executed,” and held that
Accordingly, petitioner‘s application for a hearing to determine competency and a stay of execution is hereby denied. The petition for writ of habeas corpus is also denied.
It is so ordered.
ALDERMAN, C.J., and BOYD, McDONALD and EHRLICH, JJ., concur.