IN THE SUPREME COURT OF FLORIDA
RODERICK MICHAEL ORME
Petitioner,
v.
CASE NO. SC03-1375
JAMES V. CROSBY, Jr.,
Secretary, Fla. Dept of Corrections
Respondent.
____________________________________/
RESPONSE TO PETITION FOR HABEAS CORPUS AND MEMORANDUM OF LAW
COMES NOW, Respondent, the State of Florida, by and through
the undersigned Assistant Attorney General and hereby responds
to the Petitioner’s Petition for Writ of Habeas Corpus filed in
the above styled case.
The State respectfully submits the
petition should be denied.
PRELIMINARY STATEMENT
Petitioner, Roderick Michael Orme, raises eight claims in
this petition for writ of habeas corpus. 1
References
to
petitioner will be to “Orme” or “Petitioner,” and references to
respondent will be to “the State” or “Respondent.”
The record
on direct appeal in the instant case, Case Number 81,645, will
1
It appears Orme inadvertently numbered his Claim V as
Claim VI.
As a result, the issues Orme raises in this petition
are numbered I-IV and VI-IX.
The State has renumbered Orme’s
issues I-VIII in this response.
be referenced as (TR) followed by the appropriate volume number
and page number.
The supplemental record on appeal will be
referred to as (STR) followed by the appropriate volume and page
number.
Citations
to
the
twenty-one
volume
record
in
Petitioner’s pending post-conviction appeal will be referred to
as (PCR) followed by the appropriate volume and page number.
References to Orme’s instant habeas petition will be referred to
as (Pet.) followed by the appropriate page number.
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
Orme was charged on March 26, 1992 with first degree murder,
one count of robbery and one count of sexual battery.
The
relevant facts concerning the March 1992 murder of Lisa Redd are
recited in this Court’s opinion on direct appeal:
. . . Roderick Michael Orme had an extensive history
of substance abuse for which he previously had sought
treatment at a recovery center in Panama City. On the
morning of March 4, 1992, Orme suddenly appeared at
the center again, despite a lapse of about a year
since his prior treatment. He was disoriented and
unable to respond to questions, but he did manage to
write a message. It was "LEE'S MOT RM15."
While a breathalyzer returned negative results, Orme's
blood tested positive for cocaine and he was showing
signs of acute cocaine withdrawal. He was cold, his
face was flushed, and he was exhibiting symptoms like
delirium tremens. An attending physician placed Orme
in
intensive
care
for
thirty
hours.
Illegal
barbiturates were found in Orme's possession.
Lee's Motel was located only a few blocks from
recovery center. Someone at the center telephoned
motel and said that a man who sounded hysterical
said to check room 15. The owner did so and found
2
the
the
had
the
body of a woman who had been badly beaten. Semen was
found in the victim's orifices, but DNA testing could
not identify a DNA match. One sample taken from the
victim's panties, however, held material that matched
the pattern of Orme's DNA. Orme's underpants also had
a mixed blood stain matching both Orme and the
victim's genotype. Orme's fingerprints were found in
the motel room, and his checkbook and identification
card were found in the victim's car, which was parked
outside.
The cause of death was strangulation. There were
extensive bruising and hemorrhaging on the face,
skull, chest, arms, left leg, and abdomen, indicating
a severe beating. The abdominal hemorrhaging extended
completely through the body to the back and involved
the right kidney. Jewelry the victim always wore was
missing and was never found. Police later identified
the body as that of Lisa Redd, a nurse. Orme
acknowledged that he had summoned Redd to his motel
room the day she was killed because he was having a
"bad high" after freebasing cocaine. Orme and Redd had
known each other for some time, and Orme called her
because she was a nurse.
On March 4, 1992, Orme told police he had last seen
Redd twenty minutes after she arrived at his motel.
Orme said she had knocked a crack pipe from his hands,
apparently resulting in the loss of his drugs. He left
to go partying soon thereafter. In this statement, he
also said that this was the first time he had abused
cocaine since 1990 and that he did not remember being
at the addiction recovery center.
The following day Orme gave a lengthier statement to
police. In this one, he said that Redd had arrived at
his motel room between 9 and 10 p.m. She slapped his
crack pipe out of his hands and swept several pieces
of crack into the toilet. Orme said he then took the
victim's purse, which contained her car keys, and
drove away in her car. Orme said he left and returned
several times and that it was still dark when he
realized something was wrong with Redd. The last time
he returned, however, he could not enter because he
had left the motel key inside the room.
3
At trial, Orme testified that Redd had arrived at his
motel room at 7, 8, or possibly 8:30 p.m. He again
said he returned to the motel room at some point. At
this time he realized Redd's body was cold and that
something was wrong. But he said the next thing he
remembered was being in the hospital. Robert Pegg, a
cab driver, testified at trial that he had picked up
Orme at Lee's Motel around 8 p.m. A man who lived
across from the motel, Joseph Lee, also testified. He
said that he
generally kept track of what was
happening at the motel and had first noticed the
victim's automobile there around 9:30 or 10 p.m. Lee
said he saw Orme leave and return several times.
Before going to bed around 2 a.m., Lee said he saw
Orme leave in the victim's car once more.
Another
witness, Ann Thicklin, saw someone slowly drive the
victim's car into Lee's Motel around 6:15 a.m.
The jury convicted Orme on all counts and recommended
death on a vote of seven to five. The defense waived
the mitigator of no prior criminal history and asked
for the jury to be instructed on the age mitigator,
the two statutory mental mitigators (substantial
impairment and extreme emotional disturbance), and the
catch-all mitigator. The state asked for three
instructions: murder committed in the course of a
sexual battery; heinous, atrocious, or cruel; and
pecuniary gain.
Shortly before sentencing, the defense asked the court
to consider the "no significant prior criminal
history" factor based on the presentence investigation
("PSI") and penalty-phase testimony. The defense
stated that it had waived the factor to prevent the
State from introducing a rebuttal witness about an
alleged prior sexual assault committed by Orme.
The trial court stated that it had considered this
motion. Shortly thereafter the judge sentenced Orme
to death, finding all three aggravators argued by the
State. In mitigation, the trial court found both
statutory mental mitigators and gave them "some
weight," but concluded they did not outweigh the case
for aggravation. The Court rejected the other factors
argued by Orme: his age (30), his love for his family,
an unstable childhood, potential for rehabilitation,
and good conduct while awaiting trial.
4
Orme v. State, 677 So.2d 258, 260-261 (Fla. 1996).
Orme raised eight issues in his direct appeal.2
This Court
affirmed Orme’s conviction and sentence in Orme v. State, 677
So.2d 258 (Fla. 1996) and mandate issued on August 22, 1996.
Orme filed a Petition for Writ of Certiorari with the United
States Supreme Court.
The United States Supreme Court denied
review on January 13, 1997, in Orme v. Florida, 117 S.Ct. 742
(1997).
On December 12, 1997, Orme filed a timely motion to vacate
his judgment and sentence with special leave to amend.
On July
19, 2001, Orme filed an amended motion to vacate his convictions
2
(1) it was error to deny Orme’s motion for a judgment of
acquittal when the case against him was purely circumstantial
and the State failed to disprove all reasonable hypotheses of
innocence; (2) it was error to deny Orme’s motion to suppress
his statements to officers on grounds he was too intoxicated
with drugs to knowingly and voluntarily waive his right to
remain silent; (3)death is not a proportionate penalty in this
case because his will was overborne by drug abuse, and because
any fight between the victim and him was a "lover's quarrel";
(4) because his mental state at the time of the murder was such
that he could not form a "design" to inflict a high degree of
suffering on the victim, the trial court erred in instructing
the jury regarding, and in later finding, the aggravating factor
of heinous, atrocious, or cruel; (5) the trial court erred when
it failed to weigh in mitigation the fact that Orme had no
significant prior criminal history; (6) the trial court erred in
declining to give a special instruction that acts perpetrated on
the victim after her death are not relevant to the aggravator of
heinous, atrocious, or cruel; (7) the instruction on heinous,
atrocious, or cruel violated the dictates of Espinosa v.
Florida, 505 U.S. 1079 (1992); (8) he was incapable of forming
the specific intent necessary for first-degree murder and
accordingly he cannot be sentenced to death.
5
and sentence.3
He once again requested special leave to amend
as additional public records become available.
Orme raised
twenty-five claims in his amended motion for post-conviction
r
e
l
i
e
f
.
4
3
At a status conference held on March 21, 2001, counsel for
Mr. Orme informed the court he had no objections to the state
agencies’ compliance with his request for public records.
Counsel informed the trial court “we’ve finished with the public
records aspect of this case.”
(PCR Vol. XIII 1486).
At
counsel’s request, with no objection from the State, the trial
court set July 20, 2001 as the deadline for Orme to file his
amended motion for post-conviction relief.
Orme’s amended
motion for post-conviction relief was timely filed on July 20,
2001 (PCR V. 706-811).
4
(1) counsel was ineffective for failing to challenge the
general jury qualification procedure employed in Bay County; (2)
trial counsel was rendered ineffective because the State
withheld
evidence
that
was
material
and
exculpatory,
specifically jail records demonstrating Orme was bipolar; (3)
counsel was ineffective for failing to object to the
prosecutor’s improper arguments during both phases of Orme’s
trial; (4) counsel was ineffective when he failed to adequately
investigate and prepare the defense case and by failing to
adequately challenge the State’s case; (5) trial counsel was
ineffective for failing to present evidence that Orme was
bipolar during both phases of Orme’s trial; (6) trial counsel
was ineffective when counsel failed to obtain an adequate mental
health evaluation and failed to provide the necessary background
information to the mental health consultants; (7) counsel was
ineffective for failing to investigate and develop mitigation
including evidence of Orme’s history of severe mental illness,
closed head injury, and exposure to neurotoxins; (8) Orme is
innocent of first degree murder and the death penalty; (9) Orme
was involuntarily absent from critical stages of his trial; (10)
counsel was ineffective for his failure to adequately litigate
against the introduction of gruesome and unfairly prejudicial
crime scene photographs; (11) counsel was ineffective for
failing to adequately challenge penalty phase jury instructions
which improperly shifted the burden to Orme to prove that death
was
inappropriate and to prove that mitigating circumstances
outweigh aggravating circumstances; (12) counsel was ineffective
6
On September 26, 2001, the trial court held a Huff5 hearing
on Orme’s amended post-conviction motion.
The court summarily
denied most of Orme’s twenty-five claims. The court granted an
for failing to adequately challenge constitutionally defective
penalty phase instructions regarding the three aggravating
factors upon which the jury was instructed; (13) counsel was
ineffective for failing to object or argue effectively when the
prosecutor introduced and argued non-statutory aggravation
during the penalty phase of Orme’s trial; (14) counsel was
ineffective for failing to object to comments made by the
prosecutor as well as to the penalty phase instructions, both of
which
unconstitutionally
diluted
the
jury’s
sense
of
responsibility towards sentencing; (15) execution by lethal
injection is cruel and unusual punishment prohibited by the
Eighth and Fourteenth Amendments to the United States
Constitution and international law; (16) counsel was rendered
ineffective because of rules prohibiting the interview of
jurors; (17)counsel was ineffective for failing to adequately
challenge Florida’s capital sentencing statute on the grounds it
allows the arbitrary and capricious imposition of the death
penalty; (18) the court improperly refused to consider
mitigating circumstances presented at trial; (19) the omission
of the jury qualification procedure, discussions in chambers,
and bench conferences from the record denied Orme a proper
appeal; (20) Orme’s sentence was improperly predicated upon an
automatic aggravator in violation of Orme’s Eighth and
Fourteenth Amendment rights; (21) Florida’s death penalty
sentencing procedure is unconstitutional pursuant to Apprendi v.
New Jersy because the statute allows a bare majority to render
an advisory sentence of death; (22) inadequate funding of CCR
precludes Orme from fully investigating, preparing, and
presenting post-conviction pleadings; (23) the State violated
Orme’s rights by failing to disclose Brady material and by
allowing a witness to intentionally give misleading testimony
during discovery and trial; (24) Florida’s public records law,
Section 27.708 Florida Statutes, and Rule 3.852, Florida Rules
of Criminal Procedure are unconstitutional; and (25) cumulative
error deprived Orme of a fair trial guaranteed by the Sixth,
Eighth, and Fourteenth Amendment to the
United
States
Constitution (PCR V. 706-811).
5
Huff v. State, 622 So.2d 982 (Fla. 1993).
7
evidentiary hearing, however, on Orme’s claim that counsel was
ineffective for failing to seek a continuance because he was
unprepared for trial, failing to discover the defendant was
mentally ill, and failing to provide information concerning
Orme’s mental illness to the mental health experts and the jury.
(PCR VI. 905-906).
The Court also granted an evidentiary
hearing on Orme’s claim that counsel was ineffective for not
attending the general jury qualification procedures employed in
Bay County and that the State Attorney improperly influenced
that general qualification.
(PCR VI. 902).
Finally, the trial court granted Orme an evidentiary hearing on
Orme’s allegation his counsel was ineffective for failing to
develop and present more evidence in mitigation (PCR. VI 906).
After an evidentiary hearing conducted on December 12-14,
2001, the trial court entered an order on March 8, 2002, denying
Orme’s motion for post-conviction relief. Orme filed a motion
for rehearing on March 21, 2002 (PCR VII.
1228-1229).
The
court denied the motion for rehearing on October 29, 2002.
Orme
appealed the orders to this Court, Case No. SC 02-2625, in a
Notice of Appeal filed December 6, 2002.
Simultaneously with
the filing of the brief in that case, Orme filed the instant
Petition for Writ of Habeas Corpus.
PRELIMINARY DISCUSSION OF APPLICABLE LAW
8
Like claims of ineffective assistance of trial counsel, the
standard of review for claims of ineffective assistance of
appellate counsel is de novo.
(Fla.
2003)
(standard
of
Porter v. Crosby, 840 So.2d 981
review
applicable
to
claims
of
ineffective assistance of counsel raised in a habeas petition
mirrors the Strickland v. Washington, 466 U.S. 668 (1984),
standard for trial counsel ineffectiveness).
When
evaluating
an
ineffective
assistance
of
appellate
counsel claim raised in a petition for writ of habeas corpus,
this Court must determine, (1) whether the alleged omissions are
of
such
magnitude
as
to
constitute
a
serious
error
or
substantial deficiency falling measurably outside the range of
professionally
acceptable
performance
and
(2)
whether
the
performance deficiency compromised the appellate process to such
a degree as to undermine confidence in the correctness of the
result.
Johnson v. Moore, 837 So.2d 343 (Fla. 2002). The
petitioner bears the burden of alleging a specific and serious
omission
or
overt
act
upon
which
assistance of counsel can be based.
1055, 1069 (Fla. 2000).
the
claim
of
ineffective
Freeman v. State, 761 So.2d
It is not enough to show an omission
or act by counsel constituted error.
Rather, the “deficiency
must concern an issue which is error affecting the outcome, not
simply harmless error." Knight v. State, 394 So.2d 997, 1001
(Fla. 1981).
9
A petitioner cannot prevail on a claim of ineffective
assistance of appellate counsel when the issue was not preserved
for appeal.
See Medina v. Dugger, 586 So.2d 317 (Fla. 1991).
Further, when appellate counsel chooses not to argue an issue as
a matter of strategy, this Court will generally not find that
appellate counsel was ineffective.
This is so because effective
appellate counsel need not raise every conceivable non-frivolous
issue.
Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77
L.Ed.2d 987 (1983) (appellate counsel not required to argue all
non-frivolous issues, even at request of client);
Dugger,
541
So.2d
1165,
1167
(Fla.
1989)("Most
Atkins v.
successful
appellate counsel agree that from a tactical standpoint it is
more advantageous to raise only the strongest points on appeal
and that the assertion of every conceivable argument often has
the effect of diluting the impact of the stronger points.").
An
appellate counsel is equally not ineffective for failing to
raise a claim that would have been rejected on appeal.
State, 740 So.2d 506, 517 n. 18.
So.2d
1055,
ineffective
1069-1070
for
(Fla.
failing
to
Downs v.
Accord, Freeman v. State, 761
2000)
raise
(appellate
counsel
non-meritorious
not
issues);
Rutherford v. Moore, 774 So.2d 637, 643 (Fla. 2000)(same).
This Court has also ruled that appellate counsel cannot be
deemed ineffective if the habeas claim, or a variant thereof,
was, in fact, "raised on direct appeal." Atkins v. Dugger,
10
supra, 541 So.2d at 1166-67.
So long as appellate counsel
raised the issue on appeal, mere quibbling with or criticism of
the manner in which appellate counsel raised such issue on
appeal
is
Thompson
insufficient
v.
State,
to
759
state
So.2d
a
650,
habeas-cognizable
issue.
657,
2000).
n.
6
(Fla.
Finally, a claim that has been resolved in a previous review of
the case is barred as "the law of the case." See Mills v. State,
603 So.2d 482, 486 (Fla. 1992).
Thus, claims properly raised
and rejected in a previous rule 3.850 motion for post-conviction
relief cannot be raised again on habeas.
Scott v.
Dugger, 604
So.2d 465, 469-470 (Fla. 1992).
RESPONSE TO SPECIFIC CLAIMS
CLAIM I
APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE
A CONSTITUTIONAL CLAIM CONCERNING ORME’S ABSENCE FROM
CRITICAL STAGES OF THE TRIAL IN VIOLATION OF HIS
SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION
This is effectively the same claim as Orme raised in claims
I and IX of his amended Rule 3.850 motion. (PCR V. 750).
Orme’s
first allegation centers around his alleged absence from two
bench
conferences
where
discussed and ruled upon.6
penalty
phase
instructions
were
Orme’s claim he was absent from two
6
In his petition before this Court, Orme claims he was
involuntarily absent from two (emphasis mine) separate bench
conferences between the state, trial counsel, and the court.
Orme alleges that at one conference, counsel agreed upon penalty
11
bench conferences is not supported by the record.
of
the
transcript
cited
by
Orme
in
support
The portion
of
his
claim
demonstrates that only one charge conference was conducted in
chambers
shortly
commenced.
(TR
before
the
penalty
XIV. 1043-1054).
phase
The
of
Orme’s
record
of
trial
these
proceedings does not conclusively establish the defendant’s
absence or presence during the charge conference.
The court
reporter noted after the conference was concluded, that “counsel
and the court then moved to the courtroom and the presence of
the jury.”
(TR. XVI 1054).
However, there is nothing in the
record indicating that Orme was brought in to the courtroom
subsequent to the arrival of counsel and the court.
It is
likely that either Orme was actually in attendance with his
counsel at the charge conference or he was already
courtroom
during
the
conduct
of
the
charge
in
the
conference.
Nonetheless, even if Orme was involuntarily7 absent from this
charge conference, Orme’s claim is without merit.
Trial counsel raised no objection to Orme’s alleged absence
from the charge conference and as such did not preserve this
issue for appellate review.
Absent fundamental error, appellate
phase instructions. Orme alleges at the other, the trial court
denied one of Orme’s proposed instructions. (Petition. 6).
7
Orme provides no factual support for his claim his
alleged absence was actually involuntary.
12
counsel cannot be ineffective for failing to raise issues not
preserved for appeal.
2003)
(appellate
Cherry v. State, 829 So.2d 873 (Fla.
counsel
cannot
be
ineffective
absent
fundamental error for failing to raise an issue not asserted by
trial
counsel).
Orme
cannot
demonstrate
his
absence
was
fundamental error.8
A defendant has a "constitutional right to be present at the
stages of his trial where fundamental fairness might be thwarted
by his absence." Griffin v. State, 2003 WL 22207901 (Fla. Sept.
25, 2003) citing to Francis v. State, 413 So.2d 1175, 1177 (Fla.
1982), receded from on other grounds by Muhammad v. State, 782
So.2d 343, 352 n. 4 (Fla. 2001).
be
present
does
not,
however,
The constitutional right to
extend
to
involving purely legal matters. Rutherford v.
bench
conferences
Moore, 774 So.2d
637 (Fla. 2002).
The record establishes the primary purpose of the charge
conference was to discuss penalty phase instructions relating to
the mitigating and aggravating factors that would be presented
to the jury.
During the conference, the state agreed to trial
counsel’s proposed instruction on the heinous, atrocious, or
cruel (HAC) aggravator in light of Espinosa v. Florida, 112 S.Ct
8
To the extent, Orme attempts to raise the substantive
issue that his right to be present was violated, this claim is
procedurally barred. Rutherford v. Moore, 774 So.2d at 647.
13
2926 (1992). (TR.
XVI 1046-1047).
The State objected to
another HAC jury instruction proposed by trial counsel on the
ground it was adequately covered within the first instruction
agreed to by the State.
counsel
could
argue
The State conceded, however, that trial
the
underlying
factual
basis
for
the
requested instruction during his presentation to the jury.9
The colloquy between trial counsel and the court reveals
this proposed instruction was not critical to Orme’s case during
the penalty phase of his trial.
In fact, trial counsel seemed
to concede the instruction might not be necessary at all.
Trial
counsel observed that he did not know “how relevant [it] is or
how important [it’s] going to be to the jury because I don’t
know what they think happened.
But I would at least like that
cautionary language there so that they understand that, you
know, heinous, atrocious, and [sic] cruel means before death and
not after death.”
(TR
XVI. 1048).
The trial judge denied Orme’s proposed instruction.
The
court ruled the requested instruction was adequately given in
the
Defendant’s other proposed instruction which would be given
9
The court denied Orme’s proposed jury instruction that
would have specifically instructed the jury that acts
perpetrated on the victim after her death are not relevant to
the HAC aggravtor. Though there was some evidence Orme dressed
Lisa Redd’s body in the clothes she was wearing when she arrived
at his hotel room, the medical examiner testified that all of
the injuries sustained by the victim were inflicted before
death.
14
to the jury (TR XVI. 1049).10
On direct appeal, this Court ruled
the failure to give this instruction was not error because, even
assuming arguendo such an instruction is ever necessary, “the
facts of the present case simply did not support giving such an
instruction.”
Orme v. State, 677 So.2d 258, 263 (Fla. 1996).
In Rutherford v. Moore, 774 So.2d 637, 647 (Fla. 2000), this
Court addressed a claim almost identical to the one raised here.
Rutherford argued that fundamental error occurred when he was
involuntarily absent from the penalty phase charge conference.
He
claimed his appellate counsel was ineffective for failing to
raise this issue on appeal.
In rejecting his claim, this Court
explained that Rutherford’s presence at the charge conference
would have been of no assistance to trial counsel.
This Court
went on to observe that “because the trial judge and attorneys
only
discussed
legal
arguments
at
the
charge
conference,
Rutherford's absence did not frustrate the fairness of
proceedings.” Id. at 647.
the
Accordingly, this Court ruled that
Rutherford’s absence did not even rise to the level of error,
10
During the charge conference, the court also proposed the
verdict form be modified to reflect the vote whether the
recommendation is for life or death.
Finally, the court and
counsel discussed the order of opening statements and the
identify and number of witnesses each side intended to present.
Trial counsel, without presenting any argument, also renewed his
motion for a judgment of acquittal for the record. The trial
court indicated the record will reflect the motion, the same
ruling (denied), and the same decision. (TR. XVI 1054).
15
let alone, fundamental error and as such, appellate counsel was
not ineffective for failing to raise this meritless claim.
Here, like in Rutherford, Orme makes no specific claim of
prejudice nor does he provide any factual basis to support a
finding his absence frustrated the fundamental fairness of the
proceedings. For instance, Orme makes no allegation that any
matter
discussed
during
the
conference
required
his
contemporaneous consultation, that he could or would have made
any meaningful contribution to counsel’s legal argument, or that
he would have advocated a position contrary to trial counsel’s.
Rather than point to the actual effect his absence had on the
fundamental fairness of the proceedings, Orme contends it is
enough to show he was absent while “important” matters were
discussed.
This Court in Rutherford has established this is
clearly not the case.
Because the record in this case
establishes the charge conference involved purely legal matters,
Orme’s absence did not constitute error.
Accordingly, appellate
counsel cannot be deemed ineffective for failing to raise a nonmeritorious claim.
Rutherford at 647.
In addition to his claim he was involuntarily absent from
the charge conference, Orme alleges he was absent from the
general jury qualification procedure.
Once again, trial counsel
did not preserve this issue for appeal by raising an objection
at trial.
Though Orme neglects to mention it in his petition,
16
this
Court
has
found
that
the
general
jury
qualification
procedures is not a critical stage of the proceedings requiring
the defendant’s presence.
In Robinson v. State, 520 So.2d 1
(Fla. 1988), this Court held that presence of the defendant at
jury qualification proceedings is not constitutionally required.
The Court noted that:
We do not reach the question of whether appellant
validly waived his presence during the prior general
qualification process because we do not find that
process to be a critical stage of the proceedings
requiring the defendant's presence. We see no reason
why fundamental fairness might be thwarted by [the]
defendant's absence during this routine procedure.
Robinson at page 4.
In Wright v. State, 688 So.2d 298 (Fla. 1996), this Court
distinguished between general jury qualification proceedings and
the qualification of a jury in a specific case.11
This Court
ruled the presence of the defendant is not required at general
qualification proceedings where no pretrial juror challenges are
exercised.
selection
in
This
Court
a
specific
noted
case,
in
Wright
general
that
jury
unlike
jury
qualification
proceedings are:
... often conducted by one judge, who will qualify a
panel for use by two, three, or more judges in
multiple trials. Counsel or a defendant does not
ordinarily participate in this type of qualification
process, although neither is excluded from doing so.
11
Orme makes no claim he was absent from the actual jury
selection process in his case.
17
In many instances, counsel and the defendant are not
present. In short, the general qualification process
is not "a critical stage of the proceedings requiring
the defendant's presence" (citing to Robinson, 520
So.2d 1,4).
Wright, 688 So.2d at 300.
See also Muhammad v. State, 782 So.2d
343 (Fla. 2001); Mackey v.State, 548 So.2d 904 (Fla. 1989); Hall
v. State, 420 SO.2d 822 (Fla. 1982).
established
that
a
defendant’s
Because the law is well
presence
during
the
general
qualification process is not constitutionally required, Orme’s
absence
was
not
error.
As
appellate
counsel
cannot
be
ineffective for failing to raise a meritless claim on appeal,
Orme is entitled to no relief on this claim.
Johnson v.
Singletary, 695 So.2d 263, 266-67 (Fla. 1996).
CLAIM II
APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE
CLAIMS CONCERNING THE PROSECUTOR’S IMPROPER ARGUMENTS
AT BOTH THE GUILT AND PENALTY PHASE OF ORME’S TRIAL.
Orme
complains
about
the
prosecutor’s
allegedly
inflammatory, misleading, and prejudicial comments during voir
dire, guilt phase closing argument, and penalty phase closing
argument.
Orme made this same claim in Claim III of his Amended
Rule 3.850 motion.
claim,
in
part,
objectionable.
(PCR V. 717).
because
the
The trial court denied the
prosecutor’s
remarks
were
not
(PCR VI. 903).
Orme contends the prosecutor improperly introduced, and argued,
victim impact evidence at both the guilt and penalty phase of
18
his trial.
Orme claims his appellate counsel was ineffective
for failing to raise this claim on direct appeal.
This Court has held that allegedly improper prosecutorial
comments cannot be appealed unless a contemporaneous objection
is made.
An exception to this general rule is made when the
improper comments rise to the level of fundamental error. See
Carroll v.
State, 815 So.2d 601 (Fla. 2002); Urbin v. State,
714 So.2d 411, 418, n. 8 (Fla. 1998).
In this case, trial
counsel did not object to any of the comments alleged to have
been improper or inflammatory.
Thus, even if appellate counsel
had raised this issue on direct appeal, relief would have only
been granted if this Court determined the comments constituted
fundamental error.
During voir dire, Orme claims the prosecutor misled the jury
when he told them at times during voir dire “Does everyone
understand that the law does not provide that somebody can hide
behind a liquor bottle or crack pipe?”
Orme alleges that
because voluntary intoxication was a defense to first degree
murder at the time he murdered Lisa Redd, the prosecutor’s
statements confused and misled the jury, especially in light of
the
fact
that
voluntary
presented at trial.
intoxication
was
the
defense
Orme
Orme points to six places in the record
where the prosecutor allegedly misled and confused the jury.
19
The first instance occurred when the prosecutor inquired
about prospective jurors experience with drugs or alcohol. The
prosecutor observed that “[t]here’s a principal of law that
holds that the use of alcohol to the extent it merely arouses
passions, diminishes perception, releases inhibitions or clouds
reason
and
judgement
criminal act.
does
not
excuse
the
commission
of
You can’t hide behind a liquor bottle.
anyone have a problem with that?”
(TR VIII. 142).
a
Does
When a juror
interjected a comment and question concerning the prosecutor’s
inquiry, Mr. Meadows explained that the level of alcohol about
which he meant to inquire was ingestion only to the point of
clouding your reason and reducing inhibitions.
(TR VIII. 142).
Trial counsel posed no objection nor did he request the judge to
clarify the law regarding voluntary intoxication.
The record establishes when trial counsel addressed the same
panel of prospective jurors immediately after the prosecutor
concluded his examination, counsel told the venire that while
Mr. Meadows was correct that voluntary intoxication was not an
excuse,
it
could
be
relevant
defendant’s state of mind.
to
a
determination
about
the
Trial counsel went on to note that
“impairment to such an extent that it impaired his ability to
premeditate or to form some intent to do some crime...
is
relevant in terms of your determination of what degree of crime
somebody is guilty of.”
(TR VIII. 181). Trial counsel went on
20
to tell the venire that intoxication “[d]oesn’t say that you
find him not guilty.
It just says that [it] is something that
you can take into consideration along with everything else in
determining what degree of offense you should find him guilty
of.” (TR
follow
VIII.
the
181).
judge’s
Each prospective juror agreed they would
instructions
concerning
the
impact
that
intoxication may have on premeditation or other mental state.
(TR
VIII.
182).
Orme can point to nothing in the record, because it is not
there, to support a conclusion the prosecutor misled prospective
jurors.
that
At no time did the prosecutor tell prospective jurors
voluntary
intoxication
was
something
they
could
not
consider either in the guilt or penalty phase of the trial.
The prosecutor’s comments were aimed solely at determining
whether prospective jurors understood that voluntary abuse of
drugs
or
alcohol
would
not
completely
relieve
a
criminal
defendant from the consequences of his actions.
Too, any
possible
took
confusion
was
cured
when
trial
counsel
the
opportunity to ensure prospective jurors understood that while
voluntary alcohol or drug intoxication would not excuse a crime,
it could lessen the severity or degree of the crime and could be
considered in determining the defendant’s mental state at the
time the crime was committed.
(TR. IX 281-282).
Additionally,
the trial judge properly instructed the jury on Orme’s defense
21
of involuntary intoxication. (TR.
XV 1019-1020).
There is
nothing in the record to support Orme’s conclusory allegation
the jury was misled or tainted by the prosecutor’s comments
during voir dire.
Orme also claims that during closing argument in the guilt
phase of Orme’s trial, the prosecutor improperly engaged in
“Golden Rule” argument. Orme complains of a portion of the
prosecutor’s closing argument, specifically:
What do we know about the way [Orme] killed Lisa Redd?
We know he choked her with his hands for at least two
minutes before she went unconscious.
One to two
minutes you heard.
Now after she’s unconscious, no
longer able to resist at all, he continued choking her
for three minutes.
Now I am going to stop and I‘m
going to do it for a minute or two, but when you go
back there I want you to take five minutes for Lisa
Redd and just not talk and just sit there and think
for five minutes.
(TR XV.
929).
An improper "Golden Rule" argument typically occurs when
counsel asks jurors to place themselves in the circumstances of
the
victim.
It
extends
beyond
the
evidence
and
"unduly
create[s], arouse[s] and inflame[s] the sympathy, prejudice and
passions of [the] jury to the detriment of the accused.” Urbin
v. State, 714 So.2d 411, 421 (Fla. 1998) (quoting
State, 58 So.2d 157, 159 (Fla. 1951).
845 So.2d 74 (Fla.
2003).
22
Barnes v.
See also Lugo v.
State,
Orme’s claim that these remarks invited the jury to put
themselves in the victim’s place is not supported by the record.
The prosecutor never invited the jury to imagine themselves in
the place of the victim or to imagine the victim's pain and
terror.
or
Nor did the prosecutor’s comments stem from conjecture
speculation.
Instead,
they
stemmed
directly
from
testimony of the medical examiner who testified at trial.
case is unlike
Urbin v.
the
This
State, 714 So.2d 411, 421 (Fla. 1998)
where this Court determined the prosecutor had engaged in a
"subtle 'golden rule' argument" by creating an imaginary script
demonstrating the victim was shot while pleading for his life.
Dr. Lauridson testified that Lisa very likely would have
been conscious for 1½ to 2 minutes after Orme began strangling
her.
Additionally, Dr. Lauridson told the jury that once Lisa
had been rendered unconscious, she would not have died had Orme
released the hold on her neck. (TR
XII. 582).
According to Dr.
Lauridson, in order to kill someone by manual strangulation, one
has to continue to apply pressure until heart stops beating and
the person’s condition is irreversible.
Dr.
Lauridson told the
jury this could take five or more minutes. (TR
XII.
583).
As
the prosecutor did not ask the jury to step into the shoes of
the victim and because the comments were based entirely on the
evidence presented
23
at trial, Orme has failed to demonstrate a violation of the
“Golden Rule”.
Orme next complains about the prosecutor’s comments during
the penalty phase of the trial.
Orme contends the prosecutor
urged the jurors to do their duty or to send a message through
their sentencing when during closing argument, he noted that:
Now, ultimately it all depends on what ya’ll think,
because in the truest sense you are not here just for
yourselves anymore. You’re here for that person who
runs a grocery store. You’re here for the man with
the gas station. You’re here for the doctor, for the
dentist, the fireman. You’re here for the neighbors.
The decision you make is a decision you make as
citizens. What justice demands.
(TR.
XVI
1172-1173).
Contrary
to
Orme’s
contentions,
prosecutor did not ask the jury to send Orme a message.
the
Neither
did the prosecutor argue, or even imply, that jurors would be
violating their obligation to their community if they did not
recommend
extremes
death.
To
read
this
comment
as
going
to
these
strains at the bounds of logic and common sense.
Instead, the prosecutor told the jurors what they decided
was indeed up to them.
There is nothing in the law that
prohibits the prosecutor from arguing that justice calls for
imposition of the death penalty in a particular case as long as
he does not attempt to inject elements of emotions and fear into
the jury deliberations.
Even if, arguendo, the prosecutor’s
argument got close to the edge of improperly invoking in the
24
jury a sense of community responsibility, the comment was brief
and
isolated
argument.
prejudicial
in
This
as
view
of
isolated
to
the
and
vitiate
fundamental error.
See
prosecutor’s
limited
the
entire
entire
comment
trial
was
and
closing
not
so
constitute
Card v. State, 803 So.2d 613 (Fla.
2001).
Finally, without citing to any case law in support of his
argument, Orme complains the prosecutor impermissibly exposed
the jury to victim impact testimony and argument.
Orme cites to
the prosecutor’s reference to Lisa Redd as a “young nurse just
finishing her studies, just completing her exam, trying to raise
a son, trying to help a friend who complained of being sick.”
(Pet. 11; TR.
places
where
XVI.
the
1178-1179).
prosecution
Orme also cites to six other
“impermissibly
offered
victim
impact testimony in both the guilty and penalty phases of Mr.
Orme’s trial.”
(Pet. 11).12
12
(1) During opening statement, the prosecutor told the
jury they would hear that Lisa Redd was 34 years old, a mother,
a daughter, and a nurse employed at Bay Medical Center (TR.X.
326); (2) The State called Carol Atwell, Lisa Redd’s sister, to
the stand to testify. Ms. Atwell provided testimony that Lisa
always wore and carried certain pieces of jewelry that were not
found on her body. Ms. Atwell testified Lisa had a son, was her
best friend and younger sister, had recently graduated from
nursing school and passed her exams, was in good shape, cared
about her physical appearance, and lifted weights to keep toned
up (TR. XII. 510-516); (3) During cross-examination of defense
witness Rod Orme, the prosecutor asked Mr. Orme whether he knew
her. Mr. Orme testified Lisa was a pretty young mother with a
sweet general character (TR. XIV 818); (4) During closing
25
Orme’s
argument
seems
to
stem
from
the
notion
that
a
prosecutor impermissibly introduces victim impact evidence if he
makes any reference to the victim’s personal characteristics
such as occupation, family situation, age,
capacity for compassion or empathy.
size, gender, or
Section 921.141, Florida
Statutes, however, permits the prosecution to introduce and
argue victim impact evidence and nothing prevents the prosecutor
from arguing facts introduced at trial.
v.
For instance in Cherry
Moore, 829 So.2d 873 (Fla. 2002), the defendant complained
about the prosecutor’s description of the victims throughout the
trial
as “elderly”.
Cherry argued this description constituted
impermissible victim impact evidence.
In ruling that Cherry’s claim was without merit, this Court
noted that because the victims were indeed elderly, the “State
may argue the facts in the record.” Cherry at 880.
None of the
testimony or comments about which Orme complains involved Lisa’s
family members' characterizations or opinions about the crime,
the defendant, or the appropriate sentence as prohibited by
argument in the guilt phase, the prosecutor described Lisa Redd
as a person who was thought well of by those who knew her and
who cared enough about Orme to stop by on the way to work. A
person who did not go to Orme’s room to engage in sex with him
(TR. XV. 944); (5) During penalty phase closing argument, the
prosecutor argued that Lisa was a “young mother” who was
tortured for over an hour and then choked (TR. XVI. 1167); (6)
The prosecutor referred to Lisa Redd as a “young mother” (TR.
XIV 1176).
26
Section 921.141 (7), Florida Statutes. Additionally, there is
nothing in the record that would support a finding the State
made Lisa’s occupation or motherhood a feature of the trial.
In order to constitute fundamental error, the prosecutor’s
statements
must
be
shown
to
have
"reach[ed]
down
into
the
validity of the trial itself to the extent that a verdict of
guilty could not have been obtained without the assistance of
the alleged error." McDonald v.
1999).
State, 743 So.2d 501, 505 (Fla.
See also Lugo v. State, 845 So.2d 74 (Fla. 2003).
Orme
has failed to show any of the prosecutor’s comments were error,
let alone fundamental error.
Because the prosecutor’s comments
did not rise to the level of fundamental error, and trial
counsel offered no objection at trial, appellate cannot be
deemed ineffective. Carroll v.
State, 815 So.2d 601 (Fla.
2002); Urbin v. State, 714 So.2d 411, 418, n. 8 (Fla. 1998).
CLAIM III
APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE
CLAIMS CONCERNING THE INTRODUCTION OF GRUESOME AND
UNFAIRLY
PREJUDICIAL
CRIME
SCENE
AND
AUTOPSY
PHOTOGRAPHS
Orme alleges that during the guilt phase of Orme’s trial,
the jury was shown forty-three crime scene and autopsy photos.
Orme asserts that appellate counsel was ineffective for failing
to challenge the admission of victim's photographs.
counsel
did
generally
object
to
27
the
introduction
While trial
of
these
photographs into evidence and
as such, arguably preserved the
issue for appeal, Orme is still not entitled to habeas relief.
Orme does not identify any specific photographs he deems
especially
gruesome or prejudicial.
Instead, he asserts the
court “allowed forty-three (43) photographs to be shown to the
jury.” (Pet.16).
It appears Orme refers to the series of
photographic slides the state introduced during the testimony of
Dr. James Lauridson, State Medical Examiner for the Department
of Forensic Sciences with the Alabama Department of Forensic
Sciences.
The admission of photographic evidence of a murder victim
is within the sound discretion of the trial court.
To prevail
on appeal, Orme’s counsel would have had to convince this Court
the
trial
judge
photographs.
abused
his
discretion
in
admitting
the
Carroll v. State, 815 So.2d 601, 621 (Fla. 2002)
(ruling that the admission of photographic evidence of a murder
victim is within
the sound discretion of the trial court and its ruling will not
be disturbed on appeal absent abuse).
This
Court
has,
however,
consistently
upheld
the
admissibility of photographs when they are relevant to "explain
a medical examiner's testimony, to show the manner of death, the
location of wounds, and the identity of the victim." Larkins v.
State, 655 So.2d 95, 98 (Fla. 1995); Rutherford v. Moore, 774
28
So.2d 637, 646 (Fla. 2000); Pangburn v. State, 661 So.2d 1182,
1187 (Fla. 1995).
Prior to admitting them into evidence, the
prosecutor proffered the photographs to the trial judge
the presence of the jury.
outside
The trial judge reviewed each slide
and heard argument of counsel as to their admissibility (TR XII.
551-555). Dr. Lauridson testified that out of the couple of
hundred photographs he reviewed, he selected forty-three that
were necessary to assist him in presenting medical testimony to
the jury (TR XII. 551,553).
The photographs were admitted into
evidence and Dr. Lauridson used them in his testimony.
than
seeking
to
admit
the
couple
of
hundred
Rather
photographs
available, the prosecutor limited the number of photographs to
only those Dr. Lauridson believed relevant and necessary to
assist him in presenting his testimony to the jury.
As were the photographs
in
Carroll, supra, the photos
introduced during Dr. Lauridson’s testimony were relevant to
explain the medical examiner's testimony, to show the manner and
method of death, and to show the location and number of the
wounds Orme inflicted on Lisa Redd. (TR XII. 556-584).
addition,
the
photographs
were
probative
to
the
In
jury’s
consideration of Orme’s guilt to the sexual battery charge as
well as a determination of the HAC aggravating
circumstance.
Because the record clearly establishes the trial court did not
abuse its discretion in admitting the photographic slides into
29
evidence, appellate counsel cannot be ineffective for failing to
raise issue on appeal.
Carroll, 815 So.2d at 621.
CLAIM IV
ORME IS INNOCENT OF FIRST DEGREE MURDER AND THE DEATH
PENALTY AND SENTENCED TO DEATH IN VIOLATION OF THE
EIGHTH AND FOURTEENTH AMENDMENT.
Orme raised this
identical issue in Claim VIII of his
Amended Motion to Vacate Judgments of Conviction and Sentence
with Special Request for Leave to Amend (PCR V. 747).
court denied this claim.
Orme
makes
no
The trial
(PCR VI. 906).
attempt
to
disguise
this
claim
ineffective assistance of appellate counsel claim.
Orme
alleges
his
mental
illness
(bipolar)
and
as
an
Instead,
intoxication
rendered him unable to form the intent necessary to support a
finding of premeditation, specific intent, or the existence of
any aggravating circumstance.
Orme also makes the sweeping
allegation there was "insufficient evidence to support all three
aggravating circumstances” as well as insufficient aggravating
factors to support a death sentence. (Pet. 16-17). Lastly, Orme
O
alleges his death sentence is disproportionate.
r
m
e
attempts to use these original habeas proceedings to relitigate
matters raised in another proceeding or that have already been
decided adversely against him on direct appeal.
By including
these redundant arguments in his habeas petition, “collateral
counsel
has
done
nothing
more
30
than
burden
this
Court
with
redundant material.”
Blanco v.
Wainwright, 502 So.2d 1377,
1384 (Fla. 1987); Accord Demps v. Dugger, 714 So.2d 365, 368
(Fla. 1998).
As this Court has ruled that capital habeas corpus
proceedings were not intended as second appeals of issues which
could have been or were presented on direct appeal or in a rule
3.850 proceeding, this claim is improperly raised in this habeas
petition and is procedurally barred.
Porter v.
Crosby, 840
So.2d 981 (Fla. 2003)(claims raised in a habeas petition which
have been previously decided on the merits on direct appeal or
in a Rule 3.850 motion are procedurally barred in the habeas
petition). See also Mann v. Moore, 794 So.2d 595, 600-01 (Fla.
2001);
Jones v. Moore, 794 So.2d 579 (Fla. 2001); Teffeteller
v. Dugger, 734 So.2d 1009 (Fla. 1999).
Both the sufficiency of the evidence as to his guilt of
first degree murder and to the aggravating circumstances found
in this case, as well as the proportionality of Orme’s death
sentence were decided adversely to Orme on direct appeal of his
conviction and sentence. Orme v. State, 677 So.2d 258 (Fla.
1996).
In
Orme,
this
Court
ruled
that
competent
substantial
evidence supports a conclusion that Orme strangled Lisa Redd to
further both a sexual assault and a robbery.
This Court went on
to determine the death penalty was both proportionate and a
permissible sentence.
Orme at 263.
31
In ruling, the murder was
“a
strangulation
murder
designed
to
further
both
a
sexual
assault13 and robbery,” this Court has already ruled upon Orme’s
sufficiency of the evidence claim as to both first degree murder
and each of the three aggravating factors found in this case.
This Court also found specifically that Orme’s claim he was
incapable
of
forming
the
specific
intent
necessary
first-degree murder was “meritless.” Orme at 264.
for
“[C]ompetent
substantial evidence supports the State's theory that specific
intent existed here; and, in any event, the felonies committed
by
Orme
in
conjunction
with
the
murder
were
sufficient
justify his sentence under the felony murder rule”.
Id.
to
This
Court also addressed and rejected Orme’s claim his mental state
at the time of the murder was such that he could not form a
13
Sexual battery is a general intent crime (Holland v.
State, 773 So.2d 1065 (Fla. 2000). Accordingly, the State was
required neither to prove premeditation or specific intent to
prove Orme guilty of first degree felony murder.
32
"design" to inflict a high degree of suffering on the victim.14
Finally, even if it were true that as a matter of law a
murder committed in the course of a felony is not sufficient
standing alone to establish death eligibility, such an argument
provides Orme no relief.
As discussed more fully in the State’s
response to Claim VI, there was competent substantial evidence
that Orme, not only committed the murder in the course of a
sexual battery, he committed this murder to steal Lisa Redd’s
purse and jewelry.
As this Court observed in Orme, supra, strangulation creates
a
prima
facie
case
supporting
a
finding
especially heinous, atrocious, or cruel.
the
murder
was
The testimony at trial
demonstrated Lisa Redd was beaten severely before she died. (TR
XII.
602).
An autopsy revealed there was extensive bruising
and hemorrhaging on the face, skull, chest, arms, left leg, and
abdomen, indicating a severe beating.
14
The medical examiner
In rejecting Orme’s claim his mental state and
intoxication prevented him from forming the design to inflict a
high degree of suffering and pain on Lisa Redd, this Court
observed that “strangulation creates a prima facie case for this
aggravating factor; and the defendant's mental state then
figures into the equation solely as a mitigating factor that may
or may not outweigh the total case for aggravation”. Orme at
263. HAC focuses on the means and manner in which the death is
inflicted and the immediate circumstances surrounding the death,
rather than the intent and motivation of a defendant, where a
victim experiences the torturous anxiety and fear of impending
death. See Brown v. State, 721 So.2d 274, 277 (Fla. 1998)
33
testified that Lisa suffered a significant and painful blow to
the abdomen, delivered with enough force to cause bleeding to
her kidney.
(TR. XII 578).
The evidence also supported a
conclusion Orme sodomized Lisa Redd so brutally that there was
significant bleeding and tearing in and around the anus and
rectum.
The medical examiner testified these injuries would
have been painful. (TR XII. 581-582).
Dr. Lauridson testified that, in his opinion, Lisa very
likely would have been conscious for 1½ to 2 minutes after Orme
began strangling her.
Additionally, Dr. Lauridson told the jury
Orme likely had to continue to strangle her for up to five
minutes in order to kill her. (TR XII. 583).
Lisa Redd must have known she was dying.
She suffered
torture, pain, sexual degradation, and fear, literally, at the
hands of a man who just hours before had called her to rescue
him when he was sick and scared from his “bad high”. (TR XIV.
860).
In Cox v. State, 819 So.2d 705 (Fla. 2002), this Court
observed that “[o]bviously, a victim's suffering and awareness
of [] her impending death certainly supports the finding of the
heinous, atrocious, or cruel aggravating circumstance where
there is a merciless attack and beating as occurred here.”
See
also Belcher v. State, 851 So.2d 678 (Fla. 2003) (HAC death
penalty aggravator supported by competent substantial evidence.
Although the victim was probably only conscious for sometime
34
between 30 seconds and a minute before her strangulation and
drowning death, the evidence demonstrated the victim struggled
with her killer in the bathroom where her body was found and was
likely conscious at the outset of the strangling and aware of
her impending death);
Bowles v. State, 804 So.2d 1173, 1178
(Fla. 2001) ("Strangulation of a conscious murder victim evinces
that
the
victim
suffered
through
the
extreme
anxiety
of
impending death as well as the perpetrator's utter indifference
to such torture. Accordingly, this Court has consistently upheld
the
HAC
aggravator
in
cases
where
a
conscious
victim
was
strangled.").
Orme was sentenced to death based on much more than a murder
committed in the course of a felony.
The evidence shows Orme
tortured and brutalized Lisa Redd before her death. Orme’s claim
he is innocent of first degree murder and the death penalty and
that
his
death
sentence
is
disproportionate
is
completely
without merit.
CLAIM V
ORME’S SENTENCE TO DEATH VIOLATES THE FIFTH, SIXTH,
AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION
BECAUSE THE PENALTY PHASE INSTRUCTIONS IMPROPERLY
SHIFTED THE BURDEN TO ORME TO PROVE THAT DEATH WAS AN
APPROPRIATE SENTENCE AND BECAUSE THE TRIAL COURT
EMPLOYED A PRESUMPTION OF DEATH IN SENTENCING ORME TO
DEATH
Orme raised this same claim in the guise of an ineffective
assistance of trial counsel claim in Claim XI of his Amended
35
Rule 3.850 motion.
The trial court denied his claim.
Orme
makes no such pretense here and asks this Court to consider the
merits of this claim. Capital habeas proceedings
“were
not
intended to be a second appeal of issues that could have been or
were presented on direct appeal or in a rule 3.850 proceeding.”
Downs v.
Moore, 801 So.2d 906,917 (Wells C.J., concurring)
(Fla. 2001). See also Hildwin v. Dugger, 654 So.2d 107, 111
(Fla. 1995).
This claim is procedurally barred.
Orme first claims the prosecutor improperly shifted the
burden
to
Orme
to
establish
that
mitigating
circumstances
outweigh aggravating circumstances. Without pointing to any
particular portion of the prosecutor’s penalty phase argument,
Orme contends the prosecutor argued to the jury that a death
sentence was “required” unless Orme not only produced evidence
of mitigation but also established the mitigation outweighed the
aggravating circumstances (Pet. 18).15
Orme
cannot
point
to,
because
it
does
not
exist,
any
statement by the prosecutor whereby he tells the jury it is
required to recommend death unless Orme produced evidence of
mitigation and established that such mitigation outweighed the
aggravation.
Orme cannot point to a single instance where the
15
Orme cites to the prosecutor’s entire penalty phase
closing argument found at pages 1163-1179 of the trial record in
support of this claim. Orme raised this same claim in XI of his
Amended Rule 3.850 Motion (PCR. V 753).
36
prosecutor stated, or even implied, the burden was on Orme to
produce evidence in mitigation or to prove that life is the
appropriate
sentence
aggravators.
prosecutor
What
reminded
because
the
the
record
the
jury,
mitigators
does
reflect
several
outweigh
the
is
that
the
that
its
times,
consideration of aggravating factors and mitigating factors
involved a weighing process.
He also pointed out that it was up
to the jury to give these factors whatever weight it deemed
appropriate and that consideration of aggravating and mitigating
factors did not involve comparing them numerically (e.g. 5-2, 63).
(TR XVI. 1165, 1168-1170, 1172, 1177).
The prosecutor made clear that though the jury’s sentence
was
advisory,
the
law
required
the
judge
to
recommendation great weight...” (TR XVI. 1164).
“give
that
He told the
jury that aggravating factors had to be established beyond a
reasonable doubt. (TR XVI. 1164-1165, 1167).
The prosecutor
pointed out that though he intended to argue the weight the
State believed the jury should give to each of the aggravating
and mitigating factors established in the case, “[i]t’s up to
you to decide how much weight you want to give each of those
these, aggravating or mitigating.” (TR XVI.
1165).
He also
reminded the jury that in addition to the specific mitigating
factors upon which they would be instructed, the judge would
instruct them they could consider in mitigation any aspect of
37
the defendant’s character or other circumstance of the offense.
Orme’s allegation that the prosecutor attempted to mislead the
jury into believing they were “required” to recommend death
unless Orme not only produced evidence of mitigation but also
established
the
mitigation
outweighed
the
aggravating
circumstances, is completely devoid of merit.
Orme next alleges that “it is clear the burden was on Mr.
Orme to show that life imprisonment was the appropriate sentence
because consideration of mitigating evidence was limited to only
those factors proven sufficient to outweigh the aggravation.”
(Pet.
19).
Orme claims the trial court “must have believed Mr.
Orme carried the burden of proving whether he should live or
die.”
(Pet.19).
instruction
which
Orme points to a standard penalty phase jury
allegedly
demonstrates
the
trial
court
unreasonably believed that only mitigating evidence that rose to
the level of outweighing aggravation need be considered. (Pet.
19).16
16
Orme claims the following standard jury instruction
demonstrates the trial court unreasonably believed that only
mitigating evidence that rose to the level of “outweighing”
aggravation need be considered:
It is your duty to follow the law that will now be
given to you by me and render to the Court an advisory
sentence based upon your determination as to whether
sufficient aggravating circumstances exist to justify
imposition of the death penalty and whether sufficient
mitigating circumstances exist to outweigh any
aggravating circumstances found to exist. (TR. 1195)
38
This Court has consistently rejected claims that standard
penalty phase jury instructions improperly shift the burden to
the defendant to prove either that death is inappropriate or
that
the
Griffin
mitigating
v.
State,
factors
28
Fla.
outweighs
L.
Weekly
aggravating
S723
(Fla.
factors.
Sept.
25,
2003)(noting that this Court has repeatedly rejected claims the
standard jury instructions impermissibly shifts the burden to
the defense to prove that death is not an appropriate sentence);
Johnson
v.
Moore
837
So.2d
343
(Fla.
2003)(ruling
that
appellate counsel cannot be deemed ineffective for failing to
raise meritless claim that penalty phase instructions shift the
burden to the defendant to prove that a death sentence was
inappropriate);
2003)(standard
Sweet
jury
v.
Moore,
instruction
on
822
So.2d
weighing
1269
(Fla.
mitigation
and
aggravation given by trial court in capital murder prosecution
did not impermissibly shift burden to defense to prove that a
life sentence was appropriate by suggesting that mitigators had
to outweigh aggravators).
Likewise,
Florida’s
this
death
Court
penalty
has
repeatedly
statute
presumes
rejected
death
claims
is
the
appropriate sentence. Walton v. State, 847 So.2d 438 (Fla.
2003)(“Walton's claims relating to the constitutionality of
(Pet. 19).
39
Florida's death penalty scheme - that Florida's death penalty
statute shifts the burden to the capital defendant during the
penalty phase, presumes that death is the appropriate punishment
and imposes an unconstitutional “automatic aggravator” when a
defendant is prosecuted under a theory of felony murder--have
been rejected by this Court numerous times and are entirely
devoid of merit.”). Walton at 444. See also
Freeman v. State,
761 So.2d 1055, 1067 (Fla. 2000); Banks v. State, 700 So.2d 363,
367 (Fla. 1997).
It is more than a little perplexing how Orme can infer from
a portion of the standard jury instruction regarding the jury’s
consideration of aggravating and mitigating factors that the
trial court “unreasonably believed that only mitigating evidence
that
rose
to
considered.”
the
level
(Pet. 19).
of
outweighing
aggravation
need
be
Beyond speculative, this inference is
not supported by either law or logic.
Orme neglects to point out the trial court also gave the
standard instructions which make clear that before aggravating
factors maybe considered they must be established beyond a
reasonable doubt while mitigating factors may be considered if
the jury was reasonably convinced that a mitigating circumstance
exists.
The court instructed the jury specifically that a
mitigating circumstance “need not be proved beyond a reasonable
doubt.” (TR XVI. 1198).
The court also correctly instructed the
40
jury that it should weigh the aggravating circumstances against
the mitigating circumstances and base its recommendation on
these considerations.17 (TR
XVI.
1198).
Orme has demonstrated
no error.
CLAIM VI
FLORIDA’S STATUTE SETTING FORTH THE AGGRAVATING
CIRCUMSTANCES TO BE CONSIDERED IN A CAPITAL CASE ARE
FACIALLY VAGUE AND OVERBROAD. AS A RESULT, ORME’S JURY
RECEIVED
INADEQUATE
GUIDANCE
CONCERNING
THE
AGGRAVATING FACTORS TO BE CONSIDERED
Orme raised this same claim in Claim XII of his Amended Rule
3.850 motion.
Once again, Orme makes no pretense of framing
this issue in terms of an ineffective assistance of appellate
counsel claim. Instead, Orme seeks to re-litigate the substance
of his claim.
This Court, on many occasions, has noted that
capital habeas proceedings “were not intended to be a second
appeal of issues that could have been or were presented on
direct appeal or in a rule 3.850 proceeding.”
Downs v.
801 So.2d 906,917 (Wells, C.J., concurring) (Fla.
2001). See
also Hildwin v. Dugger, 654 So.2d 107, 111 (Fla. 1995).
17
Moore,
This
In accordance with the standard jury instructions in
capital cases, the trial court instructed the jury that any
sentence it recommended must be based upon the facts as were
found from the evidence and the law. The court instructed the
jury that if it found one or may aggravating factors to exist,
it should consider all the evidence tending to establish one or
more mitigating circumstances and give that evidence such weight
as the jury feels it should receive in reaching its conclusion
as to the sentence that should be imposed. (TR. XVI 1198).
41
claim is procedurally barred.
to no relief.
In any event, Orme is entitled
Orme contends the jury did not receive accurate
and complete instructions on each of the three
circumstances upon which the jury was instructed.
aggravating
Orme argues,
without identifying what they are, the jury was not advised on
the “elements” of the aggravating factors which the State had to
prove
beyond
a
reasonable
doubt.
Though
he
purports
to
challenge the instructions for each aggravator, Orme offers
argument only to the “pecuniary gain” aggravator.
Orme first argues “the law is clear the aggravator of
‘pecuniary gain’ is not applicable unless it is the primary or
sole motive for the crime.” (Pet. 21).
Orme is mistaken.
To
establish a murder was committed for pecuniary gain, the State
is required only to show beyond a reasonable doubt the murder
was motivated, at least in part, by a desire to obtain money,
property, or other financial gain. Harris v. State, 843 So.2d
856
(Fla.
2003)(ruling
that
in
order
to
establish
the
aggravating factor of pecuniary gain, the State must prove
beyond a reasonable doubt that the murder was motivated, at
least in part, by a desire to obtain money, property, or other
financial
gain);
Card
v.
State,
803
So.2d
613,
625
(Fla.
2002)(rejecting Card’s argument that pecuniary gain aggravator
is only applicable where the State proves that pecuniary gain
was the sole or dominant motive in the murder; Anderson v.
42
State, 28 Fla. L.
Weekly S731
(Fla. Sept. 25, 2003)(finding
that because the murder occurred during a bank robbery, the
pecuniary gain aggravator was supported by competent substantial
evidence).
Orme’s claim that there is no evidence he committed the
murder in order to rob Lisa Redd is completely without merit.
First, this issue was already decided against him on direct
appeal and therefor is procedurally barred.
(Fla. 1996).
Orme, 677 So.2d 258
Second, there was clearly competent substantial
evidence presented at trial Orme’s motivation to kill Lisa Redd
stemmed, at least in part, from his desire to steal Lisa Redd’s
purse, its contents, and the jewelry she regularly wore or
carried with her.
Lisa’s sister testified at trial that Lisa always wore a
gold chain and pendant.
She told the jury the chain and pendant
were gifts from Lisa’s parents upon her graduation from nursing
school and that Lisa never took them off.
found, the chain and pendant were gone.
(TR
XII. 512).
When Lisa’s body was
They were never found.
Lisa also regularly wore, or had in her
possession, a Timex watch, a gold band with little diamond chips
belonging to Lisa’s grandmother, a silver band with little
diamond chips belonging to Lisa’s mother, a silver solitaire
diamond, a silver bracelet, a cluster ring, and a wedding band.
These items of jewelry were also never found (TR XII. 513, 51843
519).
Lisa’s credit cards were also missing.
After Lisa’s
death, Lisa’s sister called the credit card companies to notify
them of the loss of Lisa’s credit cards from her purse. (TR XII.
515).
Additionally, Orme’s entire defense to first degree murder
was centered around his alleged uncontrollable craving for crack
cocaine.
The
evidence
adduced
at
trial,
including
Orme’s
testimony, established Orme’s motive to steal Lisa Redd’s money
and jewelry -- to buy crack cocaine.
Orme’s father, Rod Orme, testified that on the day of the
murder, he loaned his son four $100 bills so Orme could buy
tires for his truck. (TR XIV.
827).
At trial, Orme told the
jury he had about $80 at the time he borrowed the money from his
father. (TR.
XIV 853).
Orme checked into Room 15 at the Lee Hotel at about 3:00
p.m. on March 3, 1992. (TR X.
364).
At the time he arrived at
the hotel, Orme was driving his white Chevrolet pick-up truck.
(TR X. 364).
Shortly after Orme checked in, taxi driver, John
Hall, picked Orme up at the hotel.
Mr. Hall testified he
arrived at the hotel sometime between 3:00 and 3:30 in the
afternoon. (TR XI. 418).
some drugs.
Mr.
Orme asked Mr. Hall where he could buy
Hall took Orme to a 6-10 Jiffy Convenience
Store located at Ninth and Cove. (TR XI. 414,416).
Orme told
Mr. Hall him he did not have anything except a $100 bill. (TR
44
XI. 416).
According to Mr. Hall, Orme went into the Jiffy
Store, bought a six pack of beer, and returned with enough
change to pay the taxi fare. (TR. XI 416-417).
Mr. Hall
testified that Orme then approached some black men that Mr. Hall
told him would probably sell Orme some dope, spoke with “some
guy” for about five minutes, and then returned to the cab.
Mr.
Hall testified he took Orme to a second convenience store where
Orme bought some potato chips, and then returned him to the
hotel. (TR XI, 416-417).
Orme testified that shortly after he arrived at the hotel,
he engaged a prostitute to “render sexual favors” (TR XIV. 855).
Orme testified that he sent her out once or twice with twenty or
forty dollars to buy more cocaine. (TR XIV. 856).
Some five
hours after Orme took his first taxi ride with Mr. Hall to buy
snacks and drugs, Orme asked a second taxi driver, Bob Pegg, to
give him a ride.
cash.18
By that time, Orme was apparently out of
Mr. Pegg testified Orme approached him about 8:00 p.m.,
asked him to give him a ride, and to “let him owe me for it.”
(TR XI. 424).
Mr. Pegg told the jury that Orme told him he only
had $2.00, asked him to run a tab, and told him he would pay Mr.
18
Contrary to what Orme told Mr. Pegg on the day of the
murder, Orme testified at trial he was not out of money when he
approached Mr. Pegg for a second taxi ride. At trial, Orme did
admit he spent the money his father lent him on drugs. (TR XIV.
876).
45
Pegg tomorrow. (TR XI. 424).
The taxi driver declined, but Orme
gave him the $2.00 anyway. (TR XI. 424).
When questioned by police, Orme told police that Lisa
arrived sometime between 9:00 and 10:00 p.m.
Mr. Lee, the owner
of Lee’s Hotel, testified he usually sat in a chair from which
he
viewed
the
motel’s
parking
lot.
He
also
testified
generally kept track of what was going on around the motel.
he
Mr.
Lee testified he first saw the victim’s car in the parking lot
around 9:30 to 10:00 p.m. (TR. X 366).
Orme
told
the
investigating
officers
arrived, he continued to smoke crack.
that
after
Lisa
According to Orme, Lisa
knocked his crack pipe from his hand and flushed his remaining
stash down the toilet (STR III. 20).
He told investigators he
decided to go out and get some more (STR III. 20).
Orme also
told investigators he took Lisa’s purse, which contained her car
keys, and her car. (STR III. 22-23).
Lisa’s purse was.
Orme did not know where
Like her jewelry, Lisa’s purse was not found.
(STR III. 22).
At trial, Orme testified that when Lisa disposed of his
crack in the toilet, she told him he needed to go to hospital.
Orme told the jury he left the hotel room because he “wanted to
continue to do the drug and [] didn’t want his family to become
aware.”
(TR XIV. 865).
He testified he did go buy some more
crack and took Lisa’s car to go buy the dope (TR XIV. 867).
46
Some hours after he murdered Lisa, Orme appeared at a drug
rehabilitation center with cocaine in his system. (TR XII. 498).
This evidence, when taken together, could easily lead a
reasonable fact finder to conclude that by the time Lisa Redd
arrived at Orme’s hotel room, Orme was out of money.
Lisa Redd
disposed of Orme’s remaining cocaine and Orme admittedly wanted
more.
Orme killed Lisa Redd, at least in part, in order to
steal her purse and jewelry and either sell it or barter it to
buy drugs.
Because there was competent substantial evidence
that Lisa Redd’s murder was motivated, at least in part, by
Orme’s desire to obtain Lisa’s money and jewelry, Orme’s claim
should be denied.
CLAIM VII
APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE
A CLAIM
THE STATE IMPROPERLY EXPOSED THE JURY TO
EVIDENCE AND ARGUMENT OF NONSTATUTORY AGGRAVATORS
Orme apparently includes this as catch-all claim.
to
his
previous
claims
concerning
allegedly
He points
improper
jury
instructions, as well as the prosecutor’s alleged “Golden Rule
argument” and comments during voir dire concerning
voluntary intoxication defense.
a potential
Orme alleges that because of
“unconstitutional jury instructions, prejudicial testimony, and
improper prosecutorial argument, the jury was exposed to a great
deal of non-statutory aggravation.”
47
(Pet. 22).
Orme alleges
his appellate counsel was ineffective for failing to raise the
introduction of this non-statutory aggravation on direct appeal.
Orme makes no new allegations nor presents any new argument
not presented in other claims.
As such, it appears Orme intends
this claim to be some sort of claim of cumulative error.
This
argument is contingent on Orme’s demonstrating error in at least
two of the other claims presented in his motion.
As discussed
fully in the State’s response to his substantive and individual
claims, he has not done so.
Because none of his allegations
rise to the level of error for which appellate counsel may be
deemed ineffective, Orme is not entitled to the relief he seeks.
See Atwater v. State , 788 So.2d 223, 238 (Fla. 2001) (where no
errors occurred, cumulative error claim is without merit); Downs
v. State
740 So.2d 506, 509 (Fla. 1999)(finding that where
allegations of individual error are found without merit, a
cumulative error argument based thereon must also fail); Johnson
v. Singletary, 695 So.2d 263, 267 (Fla. 1996)(no cumulative
error where all issues which were not barred were meritless.)
CLAIM VIII
ORME’S SENTENCE TO DEATH VIOLATES THE EIGHTH AND
FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION BECAUSE
COMMENTS MADE BY THE TRIAL JUDGE, PROSECUTOR AND TRIAL
DEFENSE COUNSEL, AS WELL AS THE PENALTY PHASE
INSTRUCTIONS, INACCURATELY DILUTED THE JURY’S SENSE OF
RESPONSIBILITY TOWARDS SENTENCING IN VIOLATION OF
CALDWELL V. MISSISSIPPI
48
Orme contends the jury was constantly exposed to statements
that
improperly
diluted
toward sentencing.
the
jury’s
sense
of
responsibility
Like in several of his other claims, Orme
does not present this claim as an ineffective assistance of
counsel claim. Rather, he improperly seeks to invoke these
original proceedings to litigate the substance of his claim.
Orme
also
raised
this
identical
claim
in
the
guise
of
an
allegation of ineffective assistance of trial counsel in Claim
XIV of his Amended Rule 3.850 motion. (PCR
V. 760).
In Hodges v. State, 28 Fla. L. Weekly S475 (Fla. June 19,
2003), this Court ruled that Hodges’ claim that comments by the
prosecutor
and
trial
court
diminished
the
jury's
sense
of
responsibility for the sentencing process was not cognizable on
collateral review because Hodges could have, but did not, raise
the argument on appeal.
See also Allen v. State, 28 Fla. L.
Weekly S604 (Fla. July 11, 2003) (noting that challenges to
comments on the ground that they dilute the jury's sense of
responsibility in sentencing should be raised on direct appeal).
As this Court has ruled that capital habeas corpus proceedings
were not intended as second appeals of issues which could have
been or were presented on direct appeal or in a rule 3.850
proceeding, Orme’s attempt to re-litigate the merits of this
claim is procedurally barred.
Porter v. Crosby, 840 So.2d 981
(Fla. 2003).
49
Orme alleges the trial court, the prosecutor, and even the
defense attorney “often times failed to instruct or tell the
jury that their recommendation would carry great weight and
would only be overridden in circumstances where no reasonable
person could agree with it.”
19
(Pet. 23-24). Orme argues that
trial participants improperly made the jury aware at every stage
of the proceedings that the judge would have the final and sole
responsible for sentencing the defendant, the jury’s sentence
was only a recommendation, and their role was only advisory.
Orme points to thirty times in the record where he alleges this
“jury dilution” occurred.
20
(Pet. 23).
Citing to the United
States Supreme Court’s decision in Caldwell v. Mississippi, 472
U.S. 320 (1985), Orme alleges these comments, along with the
standard penalty phase jury instructions, allowed the jury to
attach
less
significance
to
its
verdict
and
“enhanced
the
19
Orme fails to identify, however, the specific “often
times” in which he believes the judge, prosecutor, and trial
counsel should have paused and taken the opportunity to point
this out to the jury.
20
Orme cites to thirty record citations in which the jury
was allegedly told they merely recommended the sentence to the
judge, their recommendation was only advisory, the judge alone
has the responsibility to determine the sentence to be imposed
for first degree murder. (Pet. 23). In the great majority of
the record citations to which Orme points, however, counsel
merely use the word “recommend or recommendation” when
discussing the jury’s role at the penalty phase.
50
unacceptable risk of the imposition of an unreliable death
sentence.”
(Petition at 24).
Orme’s argument is without merit.
First, while Orme points to portions of the record that
allegedly support his claim, he ignores other parts of the
record which establish that, on several occasions, both the
prosecutor and trial defense counsel informed the jury that the
law
required
the
trial
judge
recommendation great weight.
to
give
their
sentence
For instance, Orme points, without
any specificity, to a portion of voir dire, found at Volume VIII
page 172 of the trial transcript, where the first of these
alleged dilutions occurred.
During voir dire, trial counsel inquired about prospective
jurors’
views
on
the
death
penalty.
During
an
inquiry
of
venirewoman Lipkins, conducted in the presence of other members
of the venire, trial counsel advised Lipkins that her job during
the penalty phase would be to make a recommendation of death or
life in prison. (TR.VIII 172).
Apparently, it is the word
“recommendation” with which Orme takes issue.
Orme neglects to
point out, however, that just before this colloquy between trial
counsel and Ms. Lipkins, trial counsel told potential jurors
their sentencing recommendation was “entitled to great weight
and
the
judge
has
to
give
recommendation.” (TR VIII. 168).
great
deference
to
your
Even prior to this exchange
between trial counsel and prospective jurors, the prosecutor
51
informed the jury the law required the judge to give their
sentence recommendation great weight. (TR VIII. 153).
Likewise, Orme points to Volume VIII, page 204-205 of the
trial transcript, as another example of juror dilution.
While
it is true the prosecutor informed potential jurors that in the
“recommendation phase” a majority of the jury will control what
the recommendation is, he also informed them, twice, that their
recommendation would be given great weight. (TR VIII. 205).
On
several more occasions, counsel informed potential jurors that
the
trial
judge
recommendation
would
“great
be
required
weight.”
(TR
to
IX.
give
their
232-233,
sentence
278,
288).
On one occasion, the prosecutor directly addressed the
jurors’ important role in Florida’s capital sentencing scheme,
apparently to ensure prospective jurors would not view their
sentencing responsibilities lightly. Mr. Meadows told potential
jurors, in discussing their role in the penalty phase
of
a
capital trial, he did not mean to diminish their role and
responsibility “because [the judge] is going to give whatever
you recommend to her great weight in ultimately arriving at what
she feels is the appropriate punishment.” (TR IX. 233).
Even
during closing argument at the penalty phase of Orme’s trial,
the prosecutor reminded the jury the law required the trial
judge to give its sentence recommendation great weight. (TR XVI.
1164).
52
Appellant’s reliance on Caldwell v. Mississippi, 472 U.S.
320 (1985), to support his claim is misplaced.
First, as
pointed out by this Court in Combs v. State, 525 So.2d 853 (Fla.
1988),
Caldwell
is
distinguishable,
because
Mississippi’s
sentencing structure is significantly different than the one
employed in Florida.
Combs contended, as does Orme here, that
the prosecutor minimized the jury's role and misstated Florida
law
by
advising
argument
that
the
its
jurors
decision
during
would
voir
be
dire
and
advisory.
in
Combs
final
also
claimed the judge erred in giving the standard jury instructions
which
failed
to
inform
the
jury
that
a
life
sentence
recommendation would be given great weight by the trial judge
when imposing sentence and that a jury recommendation of life
could be overridden only if virtually no reasonable person could
differ.
Combs complained the judge erred in instructing the
jury that the "final decision as to what punishment should be
imposed rests solely with the judge of this court."
Combs at
856.
Caldwell
In
rejecting
inapplicable
because
his
in
claims,
this
Mississippi,
Court
the
found
jury
is
the
sole
sentencer in capital cases, whereas in Florida it is not.
Even so, “[t]o establish a Caldwell violation, a defendant
necessarily must show that the remarks to the jury improperly
described the role assigned to the jury by local law.” Dugger v.
Adams, 489 U.S. 401, 407 (1989).
53
See also Romano v.
Oklahoma,
114 S.Ct. 2004 (1994) (same).
This Court has long recognized
the jury’s penalty phase decision is advisory and the judge does
indeed make the final sentencing decision. Combs v. State, 525
So.2d 853, 855-58 (Fla. 1988).
Further, this Court has held
that the standard jury instruction fully advises the jury of the
importance of its role, correctly states the law, and does not
denigrate the role of the jury. Floyd v. State, 850 So.2d 383,
404
(Fla.
2002)(rejecting
Floyd’s
claim
the
trial
judge’s
refusal to instruct the jury that only in rare instances can the
trial
judge
impose
a
sentence
different
than
the
jury
recommends violated the dictates of Caldwell v. Mississippi);
Brown v. State, 721 So.2d 274, 283 (Fla. 1998).
The trial court instructed the jury to recommend a sentence
and the final decision on the penalty would be made by the trial
court.
Counsel
for
both
sides
accurately
characterized
the
jury’s role during the penalty phase and on several occasions
informed the jury its recommendation was entitled to great
weight.
As these comments properly characterized the jury’s
role under Florida’s capital punishment procedures, there can be
no Caldwell violation.
CONCLUSION
Orme
has
failed
to
demonstrate
appellate
counsel
was
ineffective and presents no issues that are cognizable in these
54
proceedings. The Petition for Writ of Habeas Corpus should be
denied.
Respectfully submitted,
CHARLES J. CRIST JR.
ATTORNEY GENERAL
___________________________
MEREDITH CHARBULA
Assistant Attorney General
Florida Bar No. 0607399
OFFICE OF THE ATTORNEY GENERAL
PL-01, The Capitol
Tallahassee, FL 32399-1050
PHONE: (850) 414-3583
FAX:
(850) 487-0997
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and
correct
copy
of
the
foregoing RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS has
been furnished by U.S. Mail to D. Todd Doss, P.O. Bx 3006, Lake
City, FL 32506-3006 this
5th
day of November, 2003.
______________________
Meredith Charbula
Assistant Attorney General
CERTIFICATE OF FONT AND TYPE SIZE
Counsel certifies that this pleading was typed using 12
point Courier New.
_______________________
Meredith Charbula
55
56