IN THE SUPREME COURT OF FLORIDA CASE NO. SC03-234 ANGEL NIEVES DIAZ, Petitioner, vs. JAMES V. CROSBY, JR., Secretary, Department of Corrections, State of Florida, Respondent. ON PETITION FOR WRIT OF HABEAS CORPUS RESPONSE CHARLES J. CRIST, JR. Attorney General Tallahassee, Florida SANDRA S. JAGGARD Assistant Attorney General Florida Bar No. 0012068 Office of the Attorney General Rivergate Plaza -- Suite 950 444 Brickell Avenue Miami, Florida 33131 PH. (305) 377-5441 FAX (305) 377-5655
Transcript
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC03-234
ANGEL NIEVES DIAZ,
Petitioner,
vs.
JAMES V. CROSBY, JR., Secretary, Department of Corrections, State of Florida,
Respondent.
ON PETITION FORWRIT OF HABEAS CORPUS
RESPONSE
CHARLES J. CRIST, JR.Attorney GeneralTallahassee, Florida
SANDRA S. JAGGARDAssistant Attorney GeneralFlorida Bar No. 0012068Office of the AttorneyGeneralRivergate Plaza -- Suite 950444 Brickell AvenueMiami, Florida 33131PH. (305) 377-5441FAX (305) 377-5655
Fla. R. App. P. 9.140(b)(6)(e)(2000) . . . . . . . . . . . 6
Fla. R. Crim. P. 3.851(b)(2)(2000) . . . . . . . . . . . 5,6
1The symbol “D.A.R.” will refer to the record on directappeal. The symbols “PCR.” and “PCR-SR.” will refer to therecord and supplemental record from the post conviction appeal,respectively.
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I. PROCEDURAL HISTORY
On January 25, 1984, Defendant was charged by indictment
with one count of first degree murder, five counts of armed
robbery, six counts of armed kidnapping, one count of attempted
armed kidnapping, one count of attempted armed robbery and one
count of possession of a weapon during a criminal episode.
(D.A.R. 1-8a)1 Defendant was tried between December 19, 1985, and
December 21, 1985. He was found guilty of all of the charges
except for one count of armed robbery. (D.A.R. 252-261)
Defendant was adjudicated in accordance with these findings and
after a penalty phase proceeding was sentenced to death for the
murder. (D.A.R. 263-65, 319-30)
The historical facts are:
One of three Spanish-speaking men shot and killedthe bar manager during the December 29, 1979, holdupof a Miami bar. No one witnessed the shooting. Themajority of the patrons and employees had beenforcibly confined to a restroom. A dancer hidingunder the bar did not see the triggerman. Angel Diazwas charged with the crimes and convicted offirst-degree murder, four counts of kidnapping, twocounts of armed robbery, one count of attemptedrobbery, and one count of possessing a firearm duringthe commission of a felony. Diaz conducted his owndefense with standby counsel from the openingstatements through conviction. He was represented bycounsel during jury selection and the sentencing
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phase. The trial court sentenced Diaz to a total of834 years of imprisonment and imposed the jury'srecommended sentence of death.
* * *Candice Braun testified that on the night of
December 29, 1979, Diaz returned to their home andtold her that Angel Toro shot a man during therobbery. Gajus, however, who occupied the neighboringcell during Diaz's pre-trial incarceration, providedevidence that Diaz shot the victim. He testified asfollows:
[Diaz] indicated that he shot the man.
Q. Where did he indicate he shot theman?
A. In the chest.
Q. Did he ever come out and say to youin the words, "I shot the man in the chest"?
A. No, he did not.
Q. You were inferring that from hisindications?
A. Yes. Diaz v. State, 513 So. 2d 1045 (Fla. 1987)(“Diaz I”).
On appeal, Defendant raised 7 issues:
I. THE COURT ERRED IN DENYING A DEFENSECONTINUANCE WHEN A CRUCIAL WITNESS HAD BEENLISTED BY THE STATE ONLY ONE WEEK BEFORETRIAL.
II. TWO JURORS WHO OPPOSED THE DEATH PENALTY INGENERAL WERE IMPROPERLY EXCUSED FOR CAUSE.
III. THE DEFENDANT’S APPEARANCE INSHACKLES, HEAVILY GUARDED ANDSURROUNDED BY CONSPICUOUS SECURITYMEASURES THROUGHOUT THE TRIAL,
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INEVITABLY BIASED THE JURY AGAINSTHIM.
IV. THE TRIAL COURT ERRED IN GRANTING THEDEFENDANT’S UNTIMELY REQUEST TO REPRESENTHIMSELF WHERE, IN VIEW OF HIS BACKGROUND ANDTHE CIRCUMSTANCES OF HIS TRIAL, HE LACKEDTHE CAPACITY TO DO SO.A. The defendant’s request to
represent himself was not timely.B. The defendant was not competent to
represent himself when he couldnot read or speak English well,and his mental competence was indoubt.
C. The prejudicial effect of thedefendant’s shackles and thecourt’s security precautionsbecame overwhelming when he wasallowed to represent himself.
D. The defendant’s inability toconduct himself properly shouldhave required the court towithdraw permission to proceed prose, even if the substitution ofcounsel necessitated a mistrial.
V. THE DEATH SENTENCE IN THIS CASE VIOLATES THEEIGHTH AMENDMENT TO THE UNITED STATESCONSTITUTION.A. All death penalties are
unconstitutional.B. The jury instructions in this case
did not require the necessaryfinding of intent.
C. The death sentence isdisproportinate to the crime.
VI. THE COURT IMPROPERLY CONSIDERED ONE OF THEAGGRAVATING FACTORS IN SENTENCING THEDEFENDANT.
VII. THE COURT ERRED IN FAILING TOGRANT A MISTRIAL BASED ON THECOURT’S OWN PREJUDICIAL REMARKDURING THE SENTENCING PROCEEDING.
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This Court affirmed, after striking the knowingly creating a
great risk of danger to many persons. Diaz I.
Defendant then filed a motion for post conviction relief in
the lower court, raising 23 claims. (PCR. 11-279) The lower
court summarily denied all of the claims except for the claim of
ineffective assistance of counsel at the penalty phase. (PCR-SR.
1-2) After an evidentiary hearing, the trial court also denied
this claim. Id.
Defendant appealed the denial of his motion for post
conviction relief, raising 25 issues:
(1) denial of several claims without an evidentiaryhearing and without attaching portions of the recordto the order; ex parte communication; (2) competencyto stand trial; (3) inadequate mental health exam;(4) Brady violation; (5) Faretta violation; (6)ineffective assistance of pretrial and guilt phasecounsel; (7) disqualification of judge; (8) publicrecords disclosure; (9) ineffective assistance ofpenalty phase counsel; (10) weighing of aggravatorsand mitigators; (11) denial of self-representation inpenalty phase; (12) interference with attorney-clientrelationship; (13) absence from critical stages;(14) inadequate competency hearing; (15) denial ofright to present a defense; (16) security measures;(17) ineffective assistance of counsel in acceptingState's proffer to seek death; (18) instructions onaggravators; (19) Clemons violation; (20) Caldwellviolation; (21) nonstatutory aggravating factors;(22) failure to find mitigating circumstances; (23)burden shifting; (24) jury instruction concerningmajority vote; (25) ineffective assistance ofpost-conviction counsel.
Defendant also filed a petition for writ of habeas corpus,
raising 18 issues:
(1) Diaz's competency; (2) Diaz's absence fromcritical stages; (3) denial of Diaz's request to callwitnesses; (4) incomplete record on appeal; (5)jury's request to read back testimony; (6)proportionality; (7) weighing; (8) harmless erroranalysis; (9) failure to challenge arguments andinstructions; (10) burden shifting instructions;(11) new decisions concerning security measures; (12)security measures; (13) denial of self-representationduring penalty phase; (14) State's proffer of reasoncodefendant was offered a plea of life imprisonment;(15) pecuniary gain; (16) future dangerousness; (17)failure to find mitigating circumstances; (18)misstatements by State and court concerning thenecessary vote for a life sentence.
Diaz II at 867 n.3. This Court affirmed the denial of the
motion for post conviction relief and denied the petition for
writ of habeas corpus. Diaz II. In doing so, this Court found
that claims 5, 10-15, 18 and 20-24 regarding the motion for post
conviction relief were procedurally barred and that claims 4, 7,
8, 16, 17, 19, 25 were without merit. Diaz II at 868 n.6 & 7.
On June 19, 2000, Defendant filed a second petition for writ
of habeas corpus in this Court. In this Petition, Defendant
sought to reopen the appeal of the denial of his motion for post
conviction relief and his prior habeas petition based on
Stephens v. State, 748 So. 2d 1028 (Fla. 1999). This Court
denied the petition. Diaz v. Moore, 797 So. 2d 585 (Fla. 2001).
On February 10, 2003, Defendant filed the instant petition
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for writ of habeas corpus.
II. THE UNTIMELY SUCCESSIVE PETITION FOR WRIT OFHABEAS SHOULD BE REJECTED.
This is Defendant’s third Petition for Writ of Habeas Corpus
filed in this Court. Defendant filed his first petition on
October 26, 1989. Defendant filed his second petition on June
19, 2000. This third petition was filed on February 10, 2003.
This petition should be dismissed because it is successive and
untimely.
Pursuant to Fla. R. Crim. P. 3.851(b)(2)(2000):
All petitions for extraordinary relief in which theSupreme Court of Florida has original jurisdiction,including petitions for writ of habeas corpus, shallbe filed simultaneously with the initial brief filedon behalf of the death-sentenced prisoner in theappeal of the circuit court’s order on the rule 3.850motion.
Moreover, Fla. R. App. P. 9.140(b)(6)(e)(2000), provides:
In death penalty cases, all petitions forextraordinary relief over which the supreme court hasoriginal jurisdiction, including petitions for writ ofhabeas corpus, shall be filed simultaneously with theinitial brief in the appeal for the lower court’sorder on the defendant’s application for relief underFlorida Rule of Criminal Procedure 3.850.
In Mann v. Moore, 794 So. 2d 595, 598-99 (Fla. 2001), this Court
analyzed these rules and found that they required all death
sentenced defendants to file their extraordinary writ petitions
by the time they filed their initial briefs from the lower
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court’s order denying post conviction relief. For those
defendants who may have been mislead by the date restriction
originally contained in Fla. R. Crim. P. 3.851, this Court
granted all death sentenced defendant who had not previously
filed their petitions until January 1, 2002, to file such
petitions. Here, Defendant’s initial brief in his post
conviction appeal was filed on July 6, 1996. This petition was
not filed until February 10, 2003. As such, the petition is
untimely and should be dismissed.
Moreover, this Court has held that “[s]uccessive habeas
corpus petitions seeking the same relief are not permitted nor
can new claims be raised in a second petition when the
circumstances upon which they are based were known or should
have been known at the time the prior petition was filed.”
Johnson v. Singletary, 647 So. 2d 106, 109 (Fla. 1994).
Defendant admits that he has already raised variants of his
first 4 claims in prior petitions. As such, these claims are
not properly raised in this petition and should be dismissed.
Further, the factual basis of all of Defendant’s claims has
been available since the time of his trial. The legal basis for
Defendant’s claims is Ring v. Arizona, 122 S. Ct. 2428 (2002).
Ring applies Apprendi v. New Jersey, 530 U.S. 466 (2000), to
Arizona’s capital sentencing scheme. Apprendi was decided on
2Defendant did cite to this Court’s opinion in Mills v.Moore, 786 So. 2d 532 (Fla. 2001), in his motion for rehearingas support for a different argument.
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June 26, 2000. At that time, Defendant’s initial second habeas
petition had been filed. Defendant did not file his amended
second habeas petition until September 12, 2000. As such, the
legal basis of Defendant’s claim was also available at the time
that he filed his pleadings in his second habeas petition. Yet,
Defendant did not raise any claim based on Apprendi in the
amended petition, even though he asked this Court to review it
prior ruling on issues related to the first 4 claims raised in
this petition.2 Thus, this improper successive petition should
be rejected.
III. DEFENDANT’S RING CLAIMS SHOULD BEDENIED.
Defendant contends that he is entitled to relief under Ring
v. Arizona, 122 S. Ct. 2428 (2002). Defendant contends that
under Ring, this Court erred in making Enmund findings on
appeal, failing to remand the case after striking an aggravator,
rejecting his Caldwell claim and rejecting his burden shifting
claim. He also asserts that Florida’s capital sentencing law is
constitutional because the aggravating circumstances are not
charged in the indictment, the jury does not make unanimous
findings, the jury is told that its sentencing recommendation is
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a recommendation, and the judge writes the sentencing order.
However, these claims should be denied.
This Court has already ruled on numerous occasions that the
statutory maximum for first degree murder in Florida is death
and that Ring claims do not entitle a defendant to relief.
E.g., Lugo v. State, 28 Fla. L. Weekly S159 (Fla. Feb. 20.
2003); Jones v. State, 28 Fla. L. Weekly S140 (Fla. Feb. 13,
2003); Kormondy v. State, 28 Fla. L. Weekly S135 (Fla. Feb. 13,
2003); Doorbal v. State, 28 Fla. L. Weekly S108 (Fla. Jan. 30,
2003); Conahan v. State, 28 Fla. L. Weekly S70 (Fla. Jan. 16,
2003); Cole v. State, 28 Fla. L. Weekly S58 (Fla. Jan. 16,
2003); Anderson v. State, 28 Fla. L. Weekly S51 (Fla. Jan. 16,
2003); Spencer v. State, 28 Fla. L. Weekly S35 (Fla. Jan. 9,
2003); Porter v. Crosby, 28 Fla. L. Weekly S33 (Fla. Jan 9,
2003); Lucas v. State, 28 Fla. L. Weekly S29 (Fla. Jan 9, 2003);
Fotopoulos v. State, 28 Fla. L. Weekly S1 (Fla. Dec. 19, 2002);
Bruno v. Moore, 27 Fla. L. Weekly S1026 (Fla. Dec. 5, 2002);
Marquard v. State, 27 Fla. L. Weekly S973 (Fla. Nov. 21, 2002);
Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002); Chavez v. State,
832 So. 2d 730 (2002); King v. Moore, 831 So. 2d 143 (2002); see
Cox v. State, 819 So. 2d 705 (Fla. 2002); Bottoson v. State, 813
So. 2d 31, 36, cert. denied, 122 S. Ct. 2670 (2002); Hertz v.
fact, the United States Supreme Court is clearly not of the
opinion that its holding in Apprendi is retroactive. It has
3In fact, the United States Supreme Court has held that theomission of a jury instruction on an element of a crime issubject to harmless error analysis. Neder v. United States, 527U.S. 1 (1999).
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itself procedurally barred an Apprendi claim. See United States
v. Cotton, 535 U.S. 625 (2002)(finding that Apprendi error did
not qualify as plain error, the federal equivalent of
fundamental error). As Ring does not apply retroactively to
this case, the petition should be denied.
Moreover, even if Ring did apply retroactively to Florida,
Defendant would still not be entitled to any relief. While
Defendant asserts that Ring overruled Clemons v. Mississippi,
494 U.S. 738 (1990), and Cabana v. Bullock, 474 U.S. 376 (1986),
Ring, itself, expressly states that the effect of striking an
aggravator was not at issue in the case and refuses to address
the issue of whether the lack of a jury finding of an aggravator
was harmless not because such errors are not subject to harmless
but because the Arizona Supreme Court had yet to address the
issue.3 Ring, 122 S. Ct. at 2437 n.4. & 2443 n.7. As this Court
acknowledged in Bottoson, the United States Supreme Court
reserves to itself the prerogative to overrule its own
precedent. Bottoson v. Moore, 833 So. 2d 693, 695
(2002)(quoting Rodriquez de Quijas V. Shearson/American Express,
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490 U.S. 477 (1989). As the Court did not overrule either
Cabana or Clemons in Ring, this Court cannot do so. The
petition should be denied.
While Defendant asks this Court to revisit its rejection of
his claims that Caldwell v. Mississippi, 472 U.S. 320 (1985)
error occurred and that the jury instructions shifted the burden
of proof that the mitigation outweighed the aggravation to him
and should find Florida’s capital punishment statute
unconstitutional because the judge writes the final sentencing
order, there is no reason to do so. Defendant’s arguments are
based on a misreading of Ring. Even in the wake of Ring, a jury
only has to make a finding of one aggravator and then the judge
may make the remaining findings. Ring is limited to the finding
of an aggravator, not any additional aggravators, nor
mitigation, nor any weighing. Ring, 122 S. Ct. at 2445
(Scalia, J., concurring)(explaining that the factfinding
necessary for the jury to make in a capital case is limited to
“an aggravating factor” and does not extend to mitigation);
Ring, 122 S. Ct. at 2445 (Kennedy, J., concurring)(noting that
it is the finding of “an aggravating circumstance” that exposes
the defendant to a greater punishment than that authorized by
the jury’s verdict). Constitutionally, to be eligible for the
death penalty, all the sentencer must find is one narrower,
4 We know this is true because the Court held in Apprendi,and reaffirmed in Ring, that a prior violent felony aggravatorsatisfied the Sixth Amendment; therefore, no further juryconsideration is necessary once a qualifying aggravator isfound.
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i.e., one aggravator, at either the guilt or penalty phase.
Tuilaepa v. California, 512 U.S. 967, 972 (1994)(observing “[t]o
render a defendant eligible for the death penalty in a homicide
case, we have indicated that the trier of fact must convict the
defendant of murder and find one ‘aggravating circumstance’ (or
its equivalent) at either the guilt or penalty phase.”). Once
a jury has found one aggravator, the Constitution is satisfied,
the judge may do the rest.4
Ring does not directly or indirectly preclude a judge from
serving in the role of sentencer. There is no language in Ring
that suggests that, once a defendant has been convicted of a
capital offense, a judge may not hear evidence or make findings
in addition to any findings a jury may have made. Justice
Scalia commented that, “[t]hose States that leave the ultimate
life-or-death decision to the judge may continue to do so.”
Ring, 122 S. Ct. at 2445 (Scalia, J., concurring). The fact
that Florida provides an additional level of judicial
consideration to enhance the reliability of the sentence before
a death sentence is imposed does not render our capital
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sentencing statute unconstitutional. To the extent that
Defendant criticizes state law for requiring judicial
participation in capital sentencing, he does not identify how
judicial findings after a jury recommendation can interfere with
the right to a jury trial. Any suggestion that Ring has removed
the judge from the sentencing process is not well taken. The
judicial role in Florida alleviates Eighth Amendment concerns as
well, and in fact provides defendants with another “bite at the
apple” in securing a life sentence; it also enhances appellate
review and provides a reasoned basis for a proportionality
analysis. Because Ring does not require a jury to impose a
death sentence or a jury finding that aggravation outweighs
mitigation, there is no reason for this Court to revisit the
Caldwell issue or the burden shifting issue or to declare the
statute unconstitutional because the judge writes the sentencing
order. The petition should be denied.
Moreover, to the extent that Defendant claims that Ring
requires that the aggravating circumstances be charged in the
indictment and presented to a grand jury, that argument is based
upon an invalid comparison of federal cases, which have wholly
different procedural requirements, to Florida’s capital
5Of course, the Fifth Amendment’s grand jury clause has notbeen extended to the States under the Fourteenth Amendment.Apprendi, 530 U.S. at 477 n.3 (2000); Hurtado v. California, 110U.S. 516 (1884)(holding there is no requirement for anindictment in state capital cases). This distinction, standingalone, is dispositive of the indictment claim.
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sentencing scheme.5 For example, in United States v. Allen, 247
F.3d 741, 764 (8th Cir. 2001), the Court of Appeals based its
decision that the statutory aggravating factors under the
Federal Death Penalty Act do not have to be contained in the
indictment exclusively on Walton v. Arizona, which, of course,
Ring overruled. It is hardly surprising that the United States
Supreme Court remanded Allen for reconsideration in light of
Ring.
Moreover, a jury is not required to be unanimous regarding
why or if a defendant is guilty. Schad v. Arizona, 501 U.S. 624
(1991)(plurality opinion)(holding that due process does not
require jurors to unanimously agree on alternative theories of
criminal liability); Johnson v. Louisiana, 406 U.S. 356
(1972)(holding a conviction based on plurality of nine out of
twelve jurors did not deprive defendant of due process and did
not deny equal protection); Apodaca v. Oregon, 406 U.S. 404
(1972)(holding a conviction by less than unanimous jury does not
violate right to trial by jury and explaining that the Sixth
Amendment’s implicit guarantee of a unanimous jury verdict is
6Ring is not such a cataclysmic change in the law that anySixth Amendment violation premised on that decision must bedeemed harmful. See Ring, 122 S. Ct. at 2443 n.7 (remandingcase for harmless error analysis by state court); United States
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not applicable to the states). A jury is also not required to
specify which theory of guilt it found. Cf. Griffin v. United
States, 502 U.S. 46 (1991). As the Sixth Amendment right to
jury trial does not implicate these issues, Ring did not show
that Florida law is unconstitutional under the Sixth Amendment
for failing to have these requirements. The petition should be
denied.
Further, Defendant’s death sentence was supported by a prior
violent felony conviction, which provides a basis to impose a
sentence higher than authorized by the jury without any
additional jury findings. See Almendarez-Torres v. United
States, 523 U.S. 224 (1998); Apprendi v. New Jersey, 530 U.S.
466 (2000). There is no constitutional violation because the
prior conviction constitutes a finding by a jury which the judge
may rely upon to impose an aggravated sentence. In addition,
Defendant’s jury convicted him of kidnapping (necessarily
finding the aggravating factor of during the course of a
felony); the Sixth Amendment is satisfied by these jury findings
as they are additional facts which authorize the judicially-
imposed sentence.6 As such, the petition should be denied.
v. Cotton, 535 U.S. 625 (2002) (failure to recite amount ofdrugs in indictment was harmless due to overwhelming evidence).On the facts of this case, no harmful error can be shown.
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CONCLUSION
WHEREFORE, the State respectfully request that this Court
deny this petition.
Respectfully submitted,
CHARLES J. CRIST, JR.Attorney GeneralTallahassee, Florida
SANDRA S. JAGGARDAssistant Attorney GeneralFlorida Bar No. 0012068Office of the Attorney GeneralDepartment of Legal Affairs444 Brickell Avenue, Suite 950Miami, Florida 33131(305) 377-5441Fax (305)377-5655
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SANDRA JAGGARDAssistant Attorney General
CERTIFICATE OF COMPLIANCE
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______________________________SANDRA S. JAGGARDAssistant Attorney General
