Dailey v. State
This text of 659 So. 2d 246 (Dailey 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.
Opinion
We have on appeal the sentence of the trial court imposing the death penalty upon James Dailey. We have jurisdiction. Art. V, § 8(b)(1), Fla. Const. We affirm.
The facts are set out fully in Dailey v. State, 594 So.2d 254 (Fla.1991). Dailey and another man drove fourteen year-old Shelly Boggio to a deserted beach near St. Peters-burg where Dailey tortured her with a knife, [247]*247attempted to sexually assault her, and then stabbed, strangled and drowned her. Dailey was convicted of first-degree murder and sentenced to death based on five aggravating and no mitigating circumstances.1 This Court struck two of the aggravating circumstances 2 and, after noting that the trial court had failed to weigh mitigating circumstances, remanded for resentencing before the judge. On remand, the trial judge resentenced Dai-ley to death after finding three aggravating3 and numerous mitigating circumstances.4 Dailey raises three issues on appeal.5
Dailey’s first claim asserts that the jury recommendation of death was invalid and he was entitled to an entire new penalty phase trial before a new jury for two reasons: First, the original jury was given vague instructions on three aggravating circumstances (HAC, avoid arrest, and CCP); and second, the jury was instructed on two aggravating circumstances (avoid arrest and CCP) that were unsupported by the evidence and later struck by this Court.
As to the first part of his claim, Dailey failed to raise vagueness of the instructions in his initial appeal before this Court. When this Court issued its opinion on appeal, the jury recommendation of death was unchallenged and intact, and we instructed the trial court to hold a new sentencing proceeding before the judge. The trial court cannot now be faulted for following our directions. See Riley v. State, 413 So.2d 1173 (Fla.), cert. denied, 459 U.S. 981, 103 S.Ct. 317, 74 L.Ed.2d 294 (1982).
Further, although Dailey unsuccessfully moved to dismiss the indictment based on vagueness of the statutory aggravating circumstances, he never objected to the jury instructions themselves on vagueness grounds or offered alternative instructions.6 This claim is thus barred under Beltran-Lopez v. State, 626 So.2d 163 (Fla.1993), cert. denied, — U.S. —, 114 S.Ct. 2122, 128 L.Ed.2d 678 (1994):
We now find that Beltran-Lopez did join in a motion in limine seeking to exclude “especially heinous, atrocious, or cruel” from consideration before both the jury and the judge on the ground that the aggravating factor was unconstitutionally vague. However, it is clear that he never attacked the instruction itself, either by submitting a limiting instruction or making an objection to the instruction as worded. Therefore, he is procedurally barred from complaining of the erroneous instruction.
Id. at 164.
As to the second subpart of Dailey’s initial claim, the United States Supreme Court ruled in Sochor v. Florida, 504 U.S. 527, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), that a death recommendation was not presumptively invalid where one aggravating circumstance was struck on appeal and three other aggravating circumstances were approved:
[I]f the jury was allowed to rely on any of two or more independent grounds, one of which is infirm, we should [not] presume [248]*248that the resulting general verdict rested on the infirm ground and must be set aside.... [A] jury is ... indeed likely to disregard an option simply unsupported by evidence.
Sockor, 504 U.S. at 537-38, 112 S.Ct. at 2122. In the present case, although two aggravating circumstances were struck on appeal, three strong aggravating circumstances remained. We will not presume that the jury relied on the infirm aggravating circumstances in recommending death under the circumstances of this case. See, e.g., Oats v. State, 472 So.2d 1143 (Fla.), cert. denied, 474 U.S. 865, 106 S.Ct. 188, 88 L.Ed.2d 157 (1985) (no error where court declined to empanel penalty phase jury on remand where three of six aggravating circumstances were struck on appeal). We find no error.
Dailey next claims that the trial court failed to find and weigh mitigating circumstances. We note, however, that the trial court’s sentencing order addresses mitigating circumstances at length and explains which factors were rejected as unsupported by the evidence. The order further describes the degree of weight allocated to those factors established in the record. We find no error.
And finally, Dailey’s claim that the trial judge erred in failing to disqualify himself on remand because he had imposed death the first time around has already been rejected by this Court. See, e.g., Engle v. Dugger, 576 So.2d 696 (Fla.1991). We find no error.
Based on the foregoing, we affirm the death sentence.
It is so ordered.
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Cite This Page — Counsel Stack
659 So. 2d 246, 20 Fla. L. Weekly Supp. 241, 1995 Fla. LEXIS 797, 1995 WL 313763, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dailey-v-state-fla-1995.