Johnston v. SingletaryJohnston v. Singletary
David Eugene Johnston is a prisoner under sentence of death. Recently, the United States District Court for the Middle District of Florida in reviewing а petition for habeas corpus found error at Johnston‘s original sentencing. Johnston v. Singletary, No. 91-797-CIV-ORL-22 (M.D.Fla. Sept. 16, 1993). The court held that the heinous, atrocious, or cruel jury instructiоn was constitutionally infirm under Espinosa v. Florida, ___ U.S. ___, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). With regard to this issue, the district court stated:
Accordingly, because only the Florida courts can determine the proper approach to [Johnston‘s] sentencing, the writ of habeas corpus will be conditionally granted, within sixty (60) days from the date of this Order, unless the State of Florida initiates appropriate proceеdings in state court. Because a new sentencing hearing before a jury is not constitutionally required, the State of Florida may initiate whatever state court proceedings it finds appropriate, including seeking a life sentence or the performance of a reweighing or harmless error analysis by the Florida Supreme Court.
Johnston, slip op. at 28. The State filed a timely motion asking this Court to review the application of the heinous, atrocious, or cruel aggrаvating factor in this case. In view of the federal district court‘s order, we concluded to do so. We have jurisdiction under
In 1984, Johnston was convicted of the first-degree murder of an eighty-four-year-old woman. During the sentencing phase, the trial court charged the jury on the heinous, atrocious, or cruel aggravating fаctor, using an instruction identical to the one found unconstitutional in Espinosa. Subsequently, the jury recommended death by a vote of eight to four. The trial court, finding three aggrаvating factors1 and no mitigation, followed the jury‘s recommendation and sentenced Johnston to death.
On appeal, this Court affirmed the conviction and sentence. Johnston v. State, 497 So.2d 863, 865 (Fla. 1986). In addressing Johnston‘s argument that the evidence did not suрport a finding of heinous, atrocious, or cruel, we stated:
The trial court cites to the testimony of a medical examiner to support its finding that the murder wаs especially heinous, atrocious, or cruel. The medical examiner testified that the victim, an 84-year-old woman who had retired to bed for the evening, was strangled and stabbed three times completely though [sic] the neck and twice in the upper chest. The medical examiner‘s testimony also reveаled that it took the helpless victim three to five minutes to die after the knife wound severed the jugular vein. The court also mentioned, correctly, that the viсtim was in terror and experienced considerable pain during the murderous attack. The heinous, atrocious or cruel aggravating circumstance wаs properly applied in this instance.
Id. at 871 (citations omitted).
In 1988, after a warrant for his death was signed by the governor, Johnston filed a motion for postconviction relief pursuant to
Subsequently, Johnston appealed the denial of postconviction relief and filed a petition
Johnston next raised thе heinous, atrocious, or cruel jury instruction claim in the federal habeas petition referred to above. The federal district court judge concluded that from the face of our opinion upholding the denial of Johnston‘s motion for postconviction relief, she could not determine that the rejeсtion of this claim was based on the independent state ground that it was not preserved for appeal. Accordingly, the judge addressed the issue on the merits.
The State argues that the issue is procedurally barred. Even if it is not, the State contends that any error was harmless beyond a reasonable doubt. Johnston objects to this Court‘s entertaining the State‘s motion and argues that he is entitled to a new sentencing proceeding before a jury. We concede that the language in Johnston II, rejecting the jury instruction claim, is confusing, and we take this opportunity to clarify our position. At the outset, we hold that Johnston‘s challenge to thе heinous, atrocious, or cruel jury instruction is procedurally barred.
In Espinosa v. State, 589 So.2d 887 (Fla. 1991), rev‘d, ___ U.S. ___, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992), this Court affirmed the death sentence of Henry Espinosa. In our opinion, we rejectеd Espinosa‘s claim that the heinous, atrocious, or cruel jury instruction was unconstitutionally vague. Id. at 894. Subsequently, the United States Supreme Court reversed Espinosa‘s dеath sentence, finding that the jury instruction was invalid without narrowing language. Espinosa, ___ U.S. at ___, 112 S.Ct. at 2928. On remand, we stated:
[I]t was unnecessary [at the time of our original Espinosa opinion] to examine whether or not there had been a proper objectiоn to the especially heinous, atrocious, or cruel instruction. We now find that Espinosa did file a motion in limine seeking to exclude “especially heinоus, atrocious, or cruel” from consideration before both the jury and the judge on the ground that the aggravating factor was unconstitutionally vague. Howevеr, it is clear that he never attacked the instruction itself, either by submitting a limiting instruction or making an objection to the instruction as worded. Therefore, he is proсedurally barred from complaining of the erroneous instruction.
Espinosa v. State, 626 So.2d 165, 167 (Fla. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 2184, 128 L.Ed.2d 903 (1994). Further, we held that, even if the issue were not procedurally barred, the error would have bеen harmless beyond a reasonable doubt. Id. at 167.
Similarly, during the original proceedings in the instant case, Johnston did not object to the heinous, atrocious, or сruel jury instruction, nor did he request a special or more detailed instruction on this aggravating factor. Johnston‘s arguments were limited to challenging the constitutiоnality of the heinous, atrocious, or cruel aggravator itself as being overbroad and vague, and to challenging the application of the aggravator to his case. On direct appeal, Johnston again failed to challenge the instruction. The first time Johnson raised the issue was in his
Even if the issue were not procedurally barred, “we are convinced beyond a reasonable doubt that thе erroneous instruction would not have affected the jury‘s recommendation or the trial court‘s sentence.” Id. The jury would have found Johnston‘s brutal stabbing and strangulаtion of the eighty-four-year-old victim, who undoubtedly suffered great terror and pain before she died, heinous, atrocious, or cruel, even with the
It is so ordered.
GRIMES, C.J., OVERTON, SHAW and HARDING, JJ., and McDONALD, Senior Justice, concur.
KOGAN, J., concurs in result only.