John Earl Bush v. Harry K. Singletary, Secretary, Florida Department of Corrections

988 F.2d 1082, 1993 U.S. App. LEXIS 6563, 1993 WL 91730
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 30, 1993
Docket89-4051
StatusPublished
Cited by51 cases

This text of 988 F.2d 1082 (John Earl Bush v. Harry K. Singletary, Secretary, Florida Department of Corrections) 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
John Earl Bush v. Harry K. Singletary, Secretary, Florida Department of Corrections, 988 F.2d 1082, 1993 U.S. App. LEXIS 6563, 1993 WL 91730 (11th Cir. 1993).

Opinions

PER CURIAM:

John Earl Bush, a Florida inmate, was convicted of first-degree murder and sentenced to death. He filed a 28 U.S.C. § 2254 petition challenging both his conviction and his sentence. The district court denied relief, and Bush appeals. We affirm.

FACTS

On April 27, 1982, John Earl Bush and three other men abducted Frances Slater from the convenience store where she worked. Her body was found later that day, thirteen miles away. She had been stabbed in the abdomen and shot once in the back of her head at close range. The convenience store’s cash register and floor safe had been robbed of approximately $134.00. Bush was tried for the crimes in 1982 and convicted, following a jury trial, of first degree murder, armed robbery and kidnapping.

Four pretrial taped statements made by Bush to law enforcement authorities were introduced at trial. The Supreme Court of Florida described these statements as “the only known version of the events [which] are presented by Bush in the light most favorable to him.” Bush v. State, 461 So.2d 936, 937 (Fla.1984). In the first statement, Bush denied any involvement with the Slater abduction but said that on the night in question he had given a ride to [1085]*1085three men whom he did not know. He also claimed he had an alibi. When officers took Bush to West Palm Beach to verify his alibi, Bush recanted his first statement and made a second statement. In this statement he said that he, Pig Parker, Alfonso Cave, and Terry Johnson had gone to Fort Pierce with the intention of committing a robbery and that the four had abducted, robbed, and murdered Miss Slater. He denied stabbing or shooting the victim, denied knowing whose idea it was to kill her, and denied seeing anyone with a knife. After Bush and the officers returned from West Palm Beach, he made a third statement. In this statement he admitted driving the getaway vehicle. He also admitted owning the gun used to shoot the victim, and he admitted disposing of it the day after the murder.

Bush made a fourth statement, against the advice of his attorney, in which he said that he is the one who stabbed Frances Slater but that he had “faked” it in an effort to get his cohorts to leave her alone. He said that an accomplice, Parker, shot her. The medical examiner testified that the stab wound was superficial and did not involve Ms. Slater’s vital organs. The examiner’s opinion was that a gunshot wound to the head was the cause of death.

Following a separate sentencing hearing, the jury recommended the death penalty by a vote of seven to five. The trial judge, citing three aggravating factors and no mitigating factors, sentenced Bush to death.

PROCEDURAL HISTORY

Bush appealed his conviction and sentence to the Supreme Court of Florida. In November 1984, the Supreme Court of Florida affirmed his conviction and his sentence. Bush, 461 So.2d at 942. His petition for a writ of certiorari was denied. Bush v. Florida, 475 U.S. 1031, 106 S.Ct. 1237, 89 L.Ed.2d 345 (1986).

Bush’s first death warrant was signed in March 1986, after which he filed a motion to vacate his conviction and sentence pursuant to Florida Rule of Criminal Procedure 3.850. Following the denial of his motion, he filed a petition for writ of habe-as corpus in the Supreme Court of Florida. That court stayed his execution to consider both his petition and his appeal of the denial of his 3.850 motion. In February 1987, the Supreme Court of Florida denied the requested relief. Bush v. Wainwright, 505 So.2d 409 (Fla.1987). The Florida Supreme Court denied rehearing in May 1987. Id. In October 1987, the Supreme Court of the United States denied certiorari. Bush v. Florida, 484 U.S. 873, 108 S.Ct. 209, 98 L.Ed.2d 160 (1987).

On January 8, 1988, Bush’s second death warrant was signed. In February 1988, two days before his scheduled execution, Bush filed this 28 U.S.C. § 2254 petition in the district court. His petition asserts seventeen claims.1 After an evidentiary hear[1086]*1086ing on the adequacy of counsel issues, the district court denied relief on all claims.

The district court issued a certificate of probable cause to appeal, and we subsequently held proceedings in this court in abeyance to allow Bush to pursue state habeas proceedings in the Florida Supreme Court. The Supreme Court of Florida, however, denied relief. Bush v. Dugger, 579 So.2d 725 (Fla.1991).

ISSUES ON APPEAL

Bush argues on this appeal that the district court erred in denying relief on four claims. His brief articulates the issues as following:

(1) Whether Mr. Bush’s sentence of death constitutes cruel and unusual punishment because the state courts did not make a finding on his individual culpability sufficient to satisfy the Eighth Amendment.
(2) Whether the prosecutor’s inaccurate, inconsistent, and misleading presentation violated the Eighth and Fourteenth Amendments.
(3) Whether the state’s comments and the trial court's instructions that a verdict [recommending] life imprisonment had to be rendered by a majority of the jury misled the jury as to its role at sentencing and created the risk that death may have been imposed because of inappropriate factors, in violation of the Eighth and Fourteenth Amendments.
(4)Whether Mr. Bush received ineffective assistance of counsel at the sentencing phase of his capital trial.

Brief for Appellant at 1.

We will address each issue in turn.

DISCUSSION

1. Whether Bush’s sentence of death constitutes cruel and unusual punishment because the state courts did not make a finding of his individual culpability sufficient to satisfy the Eighth Amendment.

Bush argues that the death sentence is unwarranted in this case because the state courts did not make a finding that he was responsible for the murder of Ms. Slater. Principles of proportionality embodied in the Eighth Amendment prohibit the imposition of the death penalty upon persons who, though guilty of capital mur[1087]*1087der under state law, did not themselves kill, attempt to kill, or intend to kill. Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). In Tison v. Arizona, 481 U.S. 137, 158, 107 S.Ct. 1676, 1688, 95 L.Ed.2d 127 (1987), the Court held that major participation in the felony committed, combined with a reckless indifference to human life, was sufficient to satisfy Enmund’s culpability requirement.

Any appropriate tribunal may make the finding of culpability required by Enmund. Cabana v. Bullock, 474 U.S. 376, 392, 106 S.Ct. 689, 700, 88 L.Ed.2d 704 (1986). Thus a finding by the jury, trial judge, or appellate court may satisfy Enmund. Id. The state court findings of fact, both trial and appellate, are entitled to a presumption of correctness, under 28 U.S.C.

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Bluebook (online)
988 F.2d 1082, 1993 U.S. App. LEXIS 6563, 1993 WL 91730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-earl-bush-v-harry-k-singletary-secretary-florida-department-of-ca11-1993.