Clark v. Dugger

834 F.2d 1561, 1987 WL 23622
CourtCourt of Appeals for the Eleventh Circuit
DecidedDecember 15, 1987
DocketNo. 86-3022
StatusPublished
Cited by65 cases

This text of 834 F.2d 1561 (Clark v. Dugger) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Dugger, 834 F.2d 1561, 1987 WL 23622 (11th Cir. 1987).

Opinion

VANCE, Circuit Judge:

Raymond Clark was convicted of first degree murder, kidnapping, and extortion by a jury in Pinellas County, Florida. Following the penalty phase of the trial, Clark was sentenced to death for the murder conviction. He also was sentenced to life imprisonment for the kidnapping conviction and 15 years imprisonment for the extortion conviction, with the sentences to run consecutively. On direct appeal the Florida Supreme Court affirmed the convictions and sentences, Clark v. State, 379 So.2d 97 (Fla.1979), and the Supreme Court denied certiorari. Clark v. Florida, 450 U.S. 936, 101 S.Ct. 1402, 67 L.Ed.2d 374 (1981). Clark filed for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. After an evidentiary hearing, his Rule 3.850 motion was denied. Clark appealed, but the Florida Supreme Court affirmed the lower court’s decision. Clark v. State, 460 So.2d 886 (Fla.1984). On March 13, 1985, the Governor of Florida signed Clark’s death warrant. Clark then filed a second Rule 3.850 motion which the Florida courts again denied. See Clark v. State, 467 So.2d 699 (Fla.1985). On April 12, 1985, Clark filed this 28 U.S.C. § 2254 petition for a writ of habeas corpus with the United States District Court for the Middle District of Florida. After reviewing the record of Clark’s trial and post-conviction state court proceedings, the district court denied his petition. Clark now appeals.

A. Factual Background

The evidence presented at trial established the following. In need of money, Clark formulated a plan to kidnap someone at a bank and demand money from that person. On April 27, 1977 Clark and Ty Johnston, a juvenile who lived with Clark, parked Clark’s Chevrolet Blazer in the parking lot of a bank. The two awaited the owner of a white Cadillac. Clark was armed with a .38 caliber pistol. When David Drake, a 49-year old businessman who had been arranging a real estate closing, returned to his automobile, he was abducted by Clark. Clark got into the passenger’s side of the Cadillac and ordered his victim to drive to a deserted area. After over an hour of driving, Drake was made to park in a secluded spot. He was ordered at gunpoint to get out of the vehicle. Clark then commanded Drake to disrobe to his undershorts and forced Drake to write a check on his personal account payable to cash in the amount of $5,000. Clark tied the victim’s hands behind his back with wire. Clark then marched Drake into the bushes, forced him to kneel down, and shot Drake twice in the back of the head.

After the killing, Clark and Johnston drove back into town where they attempted to cash the victim’s check. They drove the Cadillac to a secluded location where they wiped it down to eliminate any fingerprints. Over the next few weeks, Clark made threatening phone calls to Drake’s [1563]*1563son demanding $10,000 for his father’s safe return.

B. Issues

Initially petitioner presented six issues for review:

(1) whether the trial court’s refusal to appoint a psychiatrist to assist the defense violated Clark’s constitutional rights;
(2) whether the court’s refusal to order the jury to retire from their deliberations coerced a verdict in violation of Clark’s constitutional rights;
(3) whether Clark was denied effective cross-examination of a key witness in violation of the sixth amendment;
(4) whether the court’s refusal to grant Clark’s motion for a bill of particulars in preparation for the sentencing phase denied him due process;
(5) whether Clark was denied a proper proportionality review in violation of the eighth and fourteenth amendments; and
(6) whether Clark was denied the effective assistance of counsel in violation of his sixth amendment rights.

A supplemental brief filed subsequent to oral argument raised a number of other issues, only one of which we need address: 1

(7) whether the trial court improperly restricted the consideration of nonstatutory mitigating circumstances during the penalty phase of Clark’s trial.

C. Discussion

1. Clark’s Request for a Psychiatric Expert

Prior to trial, the defendant’s counsel requested that the trial court appoint a psychiatric expert to assist her in preparing an insanity defense. At the time of Clark’s trial, Florida Rule of Criminal Procedure 3.210 provided in pertinent part:2

(c) Insanity at Time of Offense; Appointment of Expert Witnesses. When ... the existence of insanity on the part of the defendant at the time of the alleged commission of the offense charged becomes an issue in the cause, the court may appoint one or more disinterested and qualified experts, not exceeding three, to examine the defendant.

This rule contemplated that the expert’s findings were to be made available to the court and the prosecution. In contrast, the motion filed by Clark’s counsel sought the appointment of a psychiatric expert who would report confidentially to the defense. At a hearing on this motion, Clark’s counsel presented no evidence or argument as to why Clark should be entitled to the appointment of a private psychiatrist. Defendant’s counsel merely stated that if Clark had sufficient funds, he would have hired his own expert. On this bare assertion and counsel’s refusal to make a Rule 3.210 motion, the trial court refused to appoint a psychiatric expert to assist only the defense. Clark now contends that this [1564]*1564refusal violated his rights under the sixth, eighth, and fourteenth amendments.3

Clark relies heavily on the recent Supreme Court decision in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Ake, the defense counsel requested a psychiatric examination to determine the defendant’s sanity at the time of the offense. The trial court denied this request, reasoning that the State had no constitutional duty to provide such an examination. The Supreme Court reversed:

We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.

Id. at 83, 105 S.Ct. at 1097. Clark argues that applying the Ake strictures yields the conclusion that his constitutional rights were abridged through the trial court’s failure to grant Clark’s motion for a psychiatric expert to assist his counsel.

Petitioner reads Ake too broadly. The Supreme Court was clear that the constitutional duty to provide psychiatric assistance arose “when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial.” Id. at 74, 105 S.Ct. at 1092.

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Cite This Page — Counsel Stack

Bluebook (online)
834 F.2d 1561, 1987 WL 23622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-dugger-ca11-1987.