Magill v. State

457 So. 2d 1367
CourtSupreme Court of Florida
DecidedSeptember 20, 1984
Docket64997
StatusPublished
Cited by23 cases

This text of 457 So. 2d 1367 (Magill 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
Magill v. State, 457 So. 2d 1367 (Fla. 1984).

Opinion

457 So.2d 1367 (1984)

Paul Edward MAGILL, Appellant,
v.
STATE of Florida, Appellee.

No. 64997.

Supreme Court of Florida.

September 20, 1984.
Rehearing Denied November 26, 1984.

*1368 Philip J. Padovano, Tallahassee, and Patrick D. Doherty, Clearwater, for appellant.

Jim Smith, Atty. Gen. and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.

ADKINS, Justice.

This case is before us on appeal from the denial of Magill's motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We also have before us a motion for a stay of execution. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Magill was charged by indictment with the crimes of first-degree murder, sexual battery, and armed robbery. A plea of not guilty was entered and the case was tried before a jury on March 21, 1977. At the close of the guilt phase of the trial, the jury returned a verdict finding Magill guilty of each of the offenses. At the conclusion of the penalty portion of the trial, the jury returned an advisory verdict recommending the imposition of the death penalty. Consecutive life sentences were imposed for the charges of robbery and involuntary sexual battery, and the trial judge imposed a sentence of death on the charge of murder, in accordance with the recommendation of the jury.

Magill's direct appeal to this Court resulted in an affirmance of the conviction, but we remanded the case for a new sentencing hearing on the ground that the trial judge erred generally in his failure to list the mitigating circumstances which may or may not have been considered. Magill v. State, 386 So.2d 1188 (Fla. 1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981) (hereinafter Magill I).

On January 26, 1981, following the new sentencing hearing, the trial judge entered a new judgment supported by written findings of fact. The ultimate conclusion of the court was that there were insufficient mitigating circumstances to outweigh the aggravating circumstances. Accordingly, the trial judge resentenced Magill to death.

The second appeal to this Court involved only the validity of Magill's sentence. On March 10, 1983, this Court entered its opinion affirming the imposition of the sentence of death. Magill v. State, 428 So.2d 649 (Fla.), cert. denied, ___ U.S. ___, 104 S.Ct. 198, 78 L.Ed.2d 173 (1983) (hereinafter Magill II).

Governor Graham denied Magill's petition for executive clemency and signed a *1369 death warrant on February 21, 1984, directing the execution of the sentence at some time between March 16, 1984, and March 23, 1984. Subsequently, the Superintendent of the Florida State Prison scheduled the execution for Tuesday, March 20, 1984, at 7:00 a.m.

Shortly after the warrant was signed Magill filed a motion to vacate the judgment and sentence of death and a motion for stay of execution. The trial judge considered the evidence presented on Magill's behalf and entered an order denying the motion to vacate as well as the motion for stay of execution. On March 13, 1984, this Court entered a temporary stay of execution pending further order of this Court.

Magill asserted the following fundamental errors in his collateral challenge to the conviction and sentence: 1) that he was deprived of effective assistance of counsel at trial in violation of his rights under the sixth and fourteenth amendments; 2) that his plea of guilty of second-degree murder, made directly to the jury by trial counsel, was accepted by the court in the absence of a determination of voluntariness; 3) that the exclusion for cause of a juror who expressed a conscientious objection to the imposition of the death penalty upon youthful offenders deprived the defendant of his sixth and fourteenth amendment rights; 4) that the imposition of the death penalty upon a youth who was under the age of eighteen at the time of the offense constitutes excessive and disproportionate punishment in violation of the eighth and fourteenth amendments; 5) that the imposition of the death penalty in this case constitutes a denial of his equal protection rights as he is the only juvenile offender against whom a death warrant has been signed in the entire class of capital juvenile offenders; 6) that he was denied the effective assistance of counsel at sentencing in violation of the sixth and fourteenth amendments; 7) that the consideration by this Court of a psychological report denied him his sixth amendment right of confrontation and his right to a fair sentencing review required in capital cases by the eighth and fourteenth amendments; 8) that the approval of the use of certain aggravating circumstances prior to the sentencing on remand effectively deprived him of his right to a fair sentencing hearing in violation of his rights under the eighth and fourteenth amendments; 9) that the death sentence, in view of the overwhelming mitigating circumstances in his case, constitutes excessive and disproportionate punishment forbidden by the eighth and fourteenth amendments.

At his 3.850 hearing, the trial judge evaluated Magill's claim of ineffectiveness of counsel according to the standards which we set forth in Knight v. State, 394 So.2d 997 (Fla. 1981). Since that time the United States rendered its decision in Strickland v. Washington, ___ U.S. ___, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), discussing the standards to be applied when assessing ineffectiveness claims. However, the Supreme Court in Strickland held that, to the extent the lower court evaluated the claim according to whether the particular proceeding is unreliable because of a breakdown in the adversarial process, the standards articulated therein did not require reconsideration of ineffectiveness claims rejected under different standards. Moreover, in Jackson v. State, 452 So.2d 533 (Fla. 1984), we held that the Knight standard is not significantly different than the guidelines of Strickland. See also Downs v. State, 453 So.2d 1102 (Fla. 1984).

At his rule 3.850 evidentiary hearing, Magill asserted approximately thirteen different perceived failings of his counsel at trial. We find from our review of the record that those perceptions were faulty inasmuch as either the testimony contradicts the claim, or the perceived failing was not an act necessarily required of counsel, or Magill failed to demonstrate any specific prejudice to his case.

Among the claims asserted is the complaint that counsel failed to interview, depose or cross-examine certain witnesses or potential witnesses. Decisions on these matters are tactical choices and are within the standard of competency expected. See Armstrong v. State, 429 So.2d 287 (Fla.), *1370 cert. denied, ___ U.S. ___, 104 S.Ct. 203, 78 L.Ed.2d 177 (1983); Straight v. Wainwright, 422 So.2d 827 (Fla. 1982).

In order to characterize the lack of depositions as a specific omission, Magill would have to identify a specific evidentiary matter to which the failure to depose witnesses would relate. But the simple assertion that there were few or no depositions taken does not qualify as an identification of a specific omission. Messer v. State, 439 So.2d 875 (Fla. 1983). There is nothing in the motion or in the record to show admissible evidence that would be forthcoming from the witnesses or what material may have been brought out in cross-examination.

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