FRANK ELIJAH SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frank Elijah Smith, a death-row inmate, appealed the denial of his second Rule 3.850 motion, challenging a jury instruction that violated Hitchcock v. Dugger by failing to inform jurors they could consider any and all mitigating evidence. The Florida Supreme Court affirmed the denial, finding the instructional error harmless beyond a reasonable doubt given the heinous nature of the crime and overwhelming aggravating factors.
The instructional error was harmless beyond a reasonable doubt. The overwhelming aggravating factors and heinous circumstances of the murder demonstrate there is no reasonable possibility the error contributed to Smith's death sentence, and the sentencing result would not have differed had the jury received the proper instruction.
[1] A jury instruction that fails to inform the jury that it can consider any and all mitigating evidence violates Hitchcock v. …
[2] An instructional error that facially violates Hitchcock v. …
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Join FLexlaw to unlock all legal intelligence“the trial court's jury instruction in this instance facially violated Hitchcock by failing to inform the jury that it could consider any and all mitigating evidence submitted by the defense”
Establishes that the instructional error was conceded by the state and confirmed by the court as a facial Hitchcock violation.
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Join FLexlaw to unlock all legal intelligenceSmith was convicted and sentenced to death for a murder involving the heinous and calculated abduction, sequestration, rape, and execution-style killi…
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PER CURIAM.
Frank Elijah Smith, a prisoner under sentence of death, appeals the denial of relief on his second motion filed under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. Art. Y, § 3(b)(1), Fla. Const. The facts of this case are fully discussed in the prior appeals and collateral challenges involving this appellant. Smith v. Dugger, 888 F. 2d 94 (11th Cir.1989), petition for cert. filed, No. 89-6347 (U.S. Dec. 29, 1989); Smith v. Dugger, 840 F. 2d 787 (11th Cir.1988); Smith v. State, 457 So. 2d 1380 (Fla.1984); Smith v. State, 424 So. 2d 726 (Fla.1982), cert. denied, 462 U.S. 1145, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983). This appeal presents only a single issue that is not procedurally barred.
Smith argues that the instruction given by the trial court in this instance, combined with other circumstances of the case, violated the teachings of Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987). As the state conceded at argument, the trial court’s jury instruction in this instance facially violated Hitchcock by failing to inform the jury that it could consider any and all mitigating evidence submitted by the defense. The question remaining is whether this error is harmless beyond a reasonable doubt.
We have reviewed the record in its entirety and are convinced that there is no reasonable possibility that the error contributed to Smith’s sentence. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.1986). Thus, the state has met its burden of proving harmless error. The facts of this murder, which are discussed at length in the prior cases involving this appellant, disclose a heinous and calculated abduction, sequestration and rape of the victim. After the rape, the victim then was transported to an isolated location and slain execution-style. An overwhelming body of aggravating factors was found by the trial court and sustained by this Court on direct appeal. We can entertain no reasonable doubt that the result of the sentencing hearing would not have been different had the jury heard the proper instruction and considered any available mitigating evidence.
The order of the court below is affirmed. We find all other issues raised by Smith to be procedurally barred. The consolidated application for stay of execution and motion for stay of execution pending filing and disposition of a writ of certiorari in the United States Supreme Court is denied.
It is so ordered.
EHRLICH, C.J., and OVERTON, McDonald, SHAW, GRIMES and KOGAN, JJ., concur. BARKETT, J., dissents with an opinion.
NO MOTION FOR REHEARING WILL BE ENTERTAINED BY THIS COURT.
BARKETT, Justice,
dissenting.
I cannot conclude beyond a reasonable doubt that the Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), error was harmless. Defense counsel at the trial has conceded in an affidavit that he did not properly develop the available nonstatutory mitigating evidence because he believed the law forbade its introduction as evidence — an erroneous assumption reinforced by the judge’s erroneous jury instruction. At the very least, an evidentiary hearing is mandated to consider the testimony proffered by the attorney in his affidavit.
Moreover, even without any additional evidence of mitigation, I cannot say that if the jury had been properly instructed, the result would have been the same beyond any reasonable doubt. For example, the jury clearly had questions pertaining to whether Smith or eodefend-ant Copeland fired the fatal shots. During deliberations, the jury asked the judge whether a defendant must be guilty of actually pulling the trigger or whether he may be found to have used a firearm through his association as an accomplice in a murder where a firearm is used. We have previously held that the fact that the defendant might not have been the shooter is a permissible nonstatutory mitigating factor. See, e.g., Taylor v. State, 294 So. 2d 648, 652 (Fla.1974).
There were other factors presented that could have been deemed nonstatutory mitigation. Yet, the jury was not told they could consider these factors in deciding the penalty.
Accordingly, I would vacate the sentence and remand for a new sentencing hearing that complies with Hitchcock.
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Meeks v. Dugger, 576 So. 2d 713 (Fla. 1991)…idence in a collateral challenge based on Lockett and Hitchcock: [*720] Id. at 18 (citation omitted; emphasis added). Based on this analysis, Judge Stafford ordered relief in Smith, despite the fact this Court had denied such relief. Smith v. State, 556 So. 2d 1096 (Fla.1990). [*719] [T]he court notes that defense counsel’s tactical decisions were made in the context of the law as it then existed. The standard jury instruction promulgated under such law informed jurors that “the mitigating circumstances which…
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Smith v. Singletary, 61 F.3d 815 (11th Cir. 1995)…the Florida Supreme Court held that the sentencing court had committed a Hitchcock error, but that under the standard articulated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the error was harmless. Smith v. State, 556 So. 2d 1096 (Fla.1990). Smith then filed a petition in the district court. The district court agreed that the sentencing court had committed a Hitchcock error, but disagreed with the Florida Supreme Court’s determination that the error was harmless; instead,…
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Smith v. Singletary, 970 F.2d 766 (11th Cir. 1992)…4 So. 2d 726 (Fla.1982), cert. denied, 462 U.S. 1145, 103 S.Ct. 3129, 77 L.Ed.2d 1379 (1983); Smith v. State, 457 So. 2d 1380 (Fla. 1984); Smith v. Dugger, 840 F. 2d 787 (11th Cir.1988); Smith v. Dugger, 888 F. 2d 94 (11th Cir.1989); Smith v. State, 556 So. 2d 1096 (Fla. 1990); and Smith v. Dugger, 493 U.S. 1064, 110 S.Ct. 1104, 107 L.Ed.2d 1012 (1990).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. DiGUILIO, 491 So. 2d 1129 (Fla. 1986)
- Hitchcock v. Dugger, 481 U.S. 393 (U.S. 1987)
- THE Florida BAR v. Merwin, 424 So. 2d 726 (Fla. 1982)
- Smith v. Florida, 462 U.S. 1145 (U.S. 1983)
- Smith v. State, 457 So. 2d 1380 (Fla. 1984)
- Taylor v. State, 294 So. 2d 648 (Fla. 1974)
- Smith v. Dugger, 840 F.2d 787 (11th Cir. 1988)
- AFM Corp. v. S. Bell Tel. & Tel. Co., 840 F.2d 787 (11th Cir. 1988)
- Smith v. Dugger, 888 F.2d 94 (11th Cir. 1989)