Card v. State

992 So. 2d 810, 2008 WL 2678432
Supreme Court of Florida·Decided July 10, 2008·No. SC06-1383·Published·Cited by 11 cases

Opinion

992 So.2d 810 (2008)

James Armando CARD, Sr., Appellant,
v.
STATE of Florida, Appellee.

No. SC06-1383.

Supreme Court of Florida.

July 10, 2008.
Rehearing Denied September 29, 2008.

*811 Clyde M. Taylor, Jr., Tallahassee, FL, and Baya Harrison, III, Monticello, FL, for Appellant.

Bill McCollum, Attorney General, and Stephen R. White, Assistant Attorney General, Tallahassee, FL, for Appellee.

PER CURIAM.

James Armando Card appeals an order denying his motion to vacate his sentence of death under Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Card has raised only one issue on appeal, arguing that the trial court erroneously denied his claim that counsel provided ineffective assistance at his resentencing. For the reasons that follow, we affirm the trial court's denial.

FACTS AND PROCEDURAL HISTORY

Card was convicted of first-degree murder, robbery, and kidnapping in connection with the 1981 death of Janis Franklin and was sentenced to death. The death sentence was initially affirmed on direct appeal, but ultimately vacated by the trial court.[1] The following facts, which were also presented at the 1999 resentencing, were summarized in the Court's decision on Card's initial direct appeal:

On the afternoon of June 3, 1981, the Panama City Western Union office was robbed of approximately $1,100. Blood was found in the office and the clerk, Janis Franklin, was missing. The following day, Mrs. Franklin's body was discovered beside a dirt road in a secluded area approximately eight miles from the Western Union office. Her blouse was torn, her fingers severely cut to the point of being almost severed and her throat had been cut.
As early as 6:30 on the morning of June 3, 1981, the appellant telephoned an acquaintance, Vicky Elrod, in Pensacola, Florida, and told her that he might be coming to see her to repay the $50 or $60 he owed her. At approximately 9:30 that night Vicky Elrod met with the appellant. He took out a stack of twenty and one-hundred dollar bills and she asked if he had robbed a 7-Eleven store. He told her that he had robbed a Western Union station and killed the lady who worked there. He described scuffling with the victim, tearing her blouse and cutting her with his knife. He said he then took her in his car to a wooded area and cut her throat saying, "Die, die, die." Several days after their meeting, Vicky Elrod went to the police with this information. The appellant was then arrested.

*812 Card v. State, 453 So.2d 17, 18-19 (Fla. 1984), cert. denied, 469 U.S. 989, 105 S.Ct. 396, 83 L.Ed.2d 330 (1984).

At the resentencing, the State presented testimony establishing these same underlying facts but also presented the following evidence:

[T]he prior testimony of the medical examiner, Dr. Edmund Kielman, who had performed the autopsy of Franklin [but died before the resentencing proceeding], was read to the jury. According to Dr. Kielman's prior testimony, the victim suffered several defensive wounds and had a "very deep cut over her throat." The medical examiner stated that the wound to the victim's throat was approximately six or seven inches in length. The wound was also approximately two-and-one-half inches deep and almost went to the spinal cord. He opined that the perpetrator must have used a considerable amount of force in inflicting the wound to the victim's throat and that the instrument utilized by the perpetrator had to be fairly sharp to go that deep. The medical examiner also observed that the victim had suffered extensive wounds to her hands. The medical expert testified that these were classic defense wounds caused by the person protecting himself or herself from an attack.
In Card's defense, Card's attorney presented the testimony of several members of Card's family, including his mother, brother-in-law, ex-wife, daughter, niece, and brother. They testified about, among other things, Card's difficult childhood, his unstable family environment, his military service, and his achievements in prison. Defense counsel also presented the testimony of a Catholic priest, the director of a Catholic charity, and a Catholic sister. They testified about Card's religious beliefs, his commitment to Catholicism, his artwork, and how Card began writing to school children while in prison in an effort to deter young children from crime.
Defense counsel also presented the testimony of a professor of psychology at the University of Santa Cruz, Dr. Craig Haney, who testified about how he analyzed and evaluated Card's social history in an effort to understand or explain Card's criminal behavior. Doctor Haney opined that given Card's background, which included growing up in poverty, being abandoned by his father prior to birth, and suffering physical and emotional abuse and parental neglect, it was predictable that Card would use drugs and alcohol and engage in behavior that would lead him to prison. Doctor Haney also testified that Card had a good prison record and that, despite Card's past, he had adjusted well to prison life.

Card, 803 So.2d at 618 (footnote omitted).

The jury recommended death by a vote of eleven to one. The trial court found five aggravating circumstances,[2] which were identical to the aggravators found at the original penalty phase, no statutory mitigating circumstances, and seven nonstatutory mitigating circumstances applicable.[3]*813 After finding that the aggravators outweighed the mitigators, the trial court followed the jury's recommendation and sentenced Card to death. On direct appeal from the resentencing, we affirmed. See id. at 617-29.

Card then pursued postconviction relief in the trial court after his resentencing, filing his amended motion on April 2, 2004. Card raised nine claims for relief.[4] At the evidentiary hearing, Card presented the testimony of two witnesses to support his ineffective assistance claim.

First, Dr. Bill Mosman, a licensed psychologist and attorney in Florida, testified about the mental mitigation that could have been presented at the resentencing. Dr. Mosman did not personally meet or evaluate Card because Card refused to be examined; therefore, Dr. Mosman's testimony was based entirely on a review of Card's records, which he believed contained ample data to support two statutory mitigators, including extreme emotional and mental disturbance and Card's low intellectual age at the time of the crime, and several additional nonstatutory mitigating circumstances.

Second, Card presented his resentencing counsel, Jeffrey Whitton. Whitton testified about his preparation and investigation for the penalty phase, the experts he hired, his reasons for not presenting some of them during the resentencing, and his underlying strategy to humanize Card, who continues to vehemently deny any involvement in the crime. Whitton was appointed to handle Card's second postconviction appeal, in which he succeeded in obtaining a new penalty phase, and also represented him at the resentencing. Whitton stated that he worked with another attorney who assisted on a pro bono basis and with a mitigation investigator. Although Whitton admitted that Card was his first and only capital case, he testified that he attended a three- to four-day day seminar on capital cases during Card's represent

Free access — add to your briefcase to read the full text and ask questions with AI

Card v. State, 992 So. 2d 810, 2008 WL 2678432 (Fla. 2008).

992 So. 2d 810 (Card v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Pinkney Carter v. State of Florida
175 So. 3d 761 (Supreme Court of Florida, 2015)
Gary Richard Whitton v. State of Florida
161 So. 3d 314 (Supreme Court of Florida, 2014)
Buzia v. State
82 So. 3d 784 (Supreme Court of Florida, 2011)
Hoskins v. State
75 So. 3d 250 (Supreme Court of Florida, 2011)
Bradley v. State
33 So. 3d 664 (Supreme Court of Florida, 2010)