Cave v. State

529 So. 2d 293, 1988 WL 68498
CourtSupreme Court of Florida
DecidedJuly 1, 1988
Docket72637
StatusPublished
Cited by26 cases

This text of 529 So. 2d 293 (Cave v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cave v. State, 529 So. 2d 293, 1988 WL 68498 (Fla. 1988).

Opinion

529 So.2d 293 (1988)

Alphonso CAVE, Appellant,
v.
STATE of Florida, Appellee.

No. 72637.

Supreme Court of Florida.

July 1, 1988.

*294 Bruce M. Wilkinson, Stuart, and Andres Valdespino, New York City, for appellant.

Robert A. Butterworth, Atty. Gen., and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

The appellant is a Florida prisoner who was convicted of first-degree murder, armed robbery, and kidnapping and, consistent with the jury recommendation, sentenced *295 to death. We affirmed in Cave v. State, 476 So.2d 180 (Fla. 1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2907, 90 L.Ed.2d 993 (1986). A death warrant has been signed and execution set for the week beginning July 6, 1988. Appellant petitioned the trial court for post-conviction relief under Florida Rule of Criminal Procedure 3.850. He now appeals the denial of relief and asks for a stay of his execution. We have jurisdiction, article V, section 3(b)(1), Florida Constitution. We affirm the denial of rule 3.850 relief and deny the petition for a stay.

Appellant presented twelve claims to the trial court: (1) the state improperly threatened additional charges if he invoked his constitutional right to testify; (2) he did not receive effective assistance of trial counsel; (3) the state improperly suggested to the jury, contrary to the evidence, that he was the actual killer of the victim; (4) the trial court improperly refused to allow questioning of the jurors following the advisory sentence; (5) the trial court improperly excluded prospective jurors in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); (6) the trial court improperly admitted into evidence portions of a codefendant's statement; (7) the trial court improperly admitted his confession; (8) the trial court improperly denied jury instructions requested by him; (9) the trial court improperly instructed the jury on the advisory sentence; (10) the state and court improperly diminished the role and responsibility of the jury with respect to the advisory sentence; (11) the imposition of the death penalty was improper because the crime was not committed for pecuniary gain and was not heinous, wicked and cruel; and (12) the imposition of the death penalty violated Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982).

The trial court found that eleven of these claims were procedurally barred and that only claim two, ineffective assistance of trial counsel, was cognizable under rule 3.850. By its own terms, rule 3.850 provides that it

does not authorize relief based upon grounds which could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence.

We agree with the trial court that these eleven claims were cognizable only on direct appeal and, indeed, eight of them were presented and disposed of on direct appeal. Cave. Although all eleven are procedurally barred, claims three and ten merit additional comment. Concerning claim three, appellant alleges that the prosecution in its closing argument during the guilt phase improperly argued to the jury that he was the actual killer ("shooter") of the victim even though it argued in the separate, individual trials of his three cohorts that each of them was the actual killer. Appellant urges that such argument was inconsistent with the evidence and inconsistent with professional ethics and the prosecutor's responsibility to provide a fair trial. Moreover, appellant urges, such prosecutorial misconduct could only be discovered after all four trials were conducted and appellate counsel could not be expected to raise, or even be aware of, this issue on direct appeal. Whatever merit this argument might have in a hypothetical case, and we express no opinion on the question, it has no merit under the facts of this case. Appellant was one of four defendants who were convicted in separate trials of first-degree felony murder in the robbery, abduction, and murder of a convenience store clerk. During the state's closing argument, the prosecutor made the following statement to the jury:

And I submit to you that regardless of whether Alphonso Cave pulled the trigger or used the knife, he's just as guilty as who did, as who did [sic]. He was there. He was involved. And the only statement you have that he didn't pull the trigger was his own self-serving statement, that after he heard Bush's statement implicating him "I better make the best possible statement now on my own behalf." He's the only one at that point that tells you he didn't pull the trigger.
Who had the gun from the beginning? Alphonso Cave. Who had the gun in the *296 store: Alphonso Cave. Who put her in the back seat? Alphonso Cave. Who took her out of the back seat? Alphonso Cave. Who had the gun? And who was outside with Frances Slater? Alphonso Cave. (Emphasis added.)

In his presentation to this Court, appellant omits the underlined portion above and represents that the remainder of the quote is a deliberate mischaracterization by the prosecutor of the known facts which was intended to improperly prejudice the jury in its later deliberations on the advisory sentence. We disagree. First, the mischaracterization appears to be in appellant's highly selective editing of the statement. Second, the statement taken in full and in context does not argue to the jury that Cave should be found guilty because he was the actual "shooter." It argues exactly the opposite: Cave should be found guilty because he was a full participant in a felony murder regardless of which of the four participants did the actual shooting. This is made abundantly clear when the prosecutor's full closing argument is considered. Throughout the argument, before and after the above quote, the prosecutor repeatedly stressed to the jury its duty to follow the law on felony murder that all participants in the underlying felony are equally guilty of any murder that occurs, even accidentally, regardless of who did the actual killing. Under the evidence adduced in this case, and the state could not properly argue on evidence adduced in other trials, it was not clear who did the shooting. The last thing the state wanted the jury to believe was that the state had the burden of showing that Cave was the actual killer. Indeed, the state's emphasis on the irrelevancy of the question was in response to defense counsel's repeated misstatements of the law on felony murder in her closing argument.[1] There is no merit in appellant's argument of prosecutorial misconduct nor that the issue is not procedurally barred.

On claim ten, appellant argues that the jury's role was improperly denigrated in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), and that this claim is not procedurally barred because Caldwell represents a change in law occurring since trial and direct appeal. We begin by noting that Caldwell was decided June 11, 1985, that our Cave decision on direct appeal was not issued until August 30, 1985, and did not become final until October 21, 1985, and that the United States Supreme Court did not deny certiorari until June 9, 1986. In view of this chronology, Caldwell

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

Related

Dane P. Abdool v. Pam Bondi, etc.
141 So. 3d 529 (Supreme Court of Florida, 2014)
Correll v. Secretary, Department of Corrections
932 F. Supp. 2d 1257 (M.D. Florida, 2013)
Cooper v. State
856 So. 2d 969 (Supreme Court of Florida, 2003)
Walton v. State
847 So. 2d 438 (Supreme Court of Florida, 2003)
Patton v. State
784 So. 2d 380 (Supreme Court of Florida, 2000)
Teffeteller v. Dugger
734 So. 2d 1009 (Supreme Court of Florida, 1999)
Cave v. Singletary
84 F.3d 1350 (Eleventh Circuit, 1996)
Cave v. State
660 So. 2d 705 (Supreme Court of Florida, 1995)
Remeta v. Dugger
622 So. 2d 452 (Supreme Court of Florida, 1993)
Koon v. Dugger
619 So. 2d 246 (Supreme Court of Florida, 1993)
Roberts v. State
568 So. 2d 1255 (Supreme Court of Florida, 1990)
James Armando Card v. Richard L. Dugger
911 F.2d 1494 (Eleventh Circuit, 1990)
Smith v. Dugger
565 So. 2d 1293 (Supreme Court of Florida, 1990)
Hill v. Dugger
556 So. 2d 1385 (Supreme Court of Florida, 1990)
Tompkins v. Dugger
549 So. 2d 1370 (Supreme Court of Florida, 1989)
Amin v. State
774 P.2d 597 (Wyoming Supreme Court, 1989)
Dugger v. Adams
489 U.S. 401 (Supreme Court, 1989)
Joseph v. State
540 So. 2d 260 (District Court of Appeal of Florida, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
529 So. 2d 293, 1988 WL 68498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cave-v-state-fla-1988.