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SC03-1413 Grossman V. Crosby

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SC03-1413 Grossman V. Crosby IN THE SUPREME COURT OF FLORIDA MARTIN GROSSMAN, Petitioner, VS. Case No. SC03-1413 JAMES V. CROSBY, JR., Respondent. ___________________________/ RESPONSE TO SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS COMES NOW, Respondent, James V. Crosby, Jr., by and through the undersigned Assistant Attorney General, and hereby responds to the successive Petition for Writ of Habeas Corpus filed herein, pursuant to this Court’s Order of August 28, 2003. Respondent respectfully submits that the petition should be dismissed as procedurally barred; alternatively, the petition should be denied as meritless. FACTS AND PROCEDURAL HISTORY Petitioner Grossman is again seeking extraordinary relief from the murder conviction and sentence of death entered against him in 1985. His conviction and sentence were affirmed on appeal. Grossman v. State, 525 So. 2d 833 (Fla. 1988), cert. denied, 489 U.S. 1071 (1989). The facts of the case are summarized in this Court’s opinion: Appellant and a companion, Taylor, drove to a wooded area of Pinellas County on the night of December 13, 1984, to shoot a handgun which appellant had recently obtained by burglarizing a home. Appellant lived in neighboring Pasco County at his mother’s home and was on probation following a recent prison term. Wildlife Officer Margaret Park, patrolling the area in her vehicle, came upon the two men and became suspicious. She left her vehicle with the motor, lights, and flashers on, and took possession of appellant’s weapon and driver’s license. Appellant pleaded with her not to turn him in as having a weapon in his possession and being outside of Pasco County would cause him to return to prison for violation of probation. Officer Park refused the plea, opened the driver’s door to her vehicle and picked up the radio microphone to call the sheriff’s office. Appellant then grabbed the officer’s large flashlight and struck her repeatedly on the head and shoulders, forcing her upper body into the vehicle. Officer Park reported “I’m hit” over the radio and screamed. Appellant continued the attack, and called for help from Taylor, who joined in the assault. Officer Park managed to draw her weapon, a .357 magnum, and fired a wild shot within the vehicle. Simultaneously, she temporarily disabled Taylor by kicking him in the groin. Appellant, who is a large man, wrestled the officer’s weapon away and fired a fatal shot into the back of her head. The spent slug exited her head in front and fell into a drinking cup inside the vehicle. Blood stains, high velocity splatters, the location of the spent slug, and the entry and exit wounds show that the victim’s upper body was inside the vehicle with her face turned inward or downward at the moment she was killed. Appellant and Taylor took back the seized handgun and driver’s license, and fled with the officer’s weapon. They returned to the Grossman home, where they told the story of the killing, individually and collectively, 2 to a friend who lived with the Grossmans. The friend, Brian Hancock, and Taylor buried the two weapons nearby. Appellant, who was covered with blood, attempted unsuccessfully to burn his clothes and shoes which Taylor later disposed of in a nearby lake. Approximately a week later appellant and Taylor, individually and collectively, recounted the story of the murder to another friend, Brian Allan. Approximately eleven days after the murder, Hancock told his story to the police and appellant and Taylor were arrested. Taylor, upon his arrest, recounted the story of the murder to a policeman and, later, appellant told the story to a jailmate, Charles Brewer. Appellant and Taylor were tried jointly over appellant’s objection. At trial, the state introduced the testimony of Hancock, Allan, and Brewer against appellant. The state also introduced Taylor’s statement to the policeman against Taylor only. In addition, the state introduced the charred shoes, the two weapons, prints taken from the victim’s vehicle, testimony from a neighbor who observed the attempted burning of the clothes, appellant’s efforts to clean the Grossman van, and the changing of the van tires. Expert testimony as to the cause of death and the significance of blood splatter evidence was also introduced by the state. The jury was instructed that Taylor’s admissions to the policeman could only be used against him, not appellant. The jury was instructed on premeditation and felony murder based on robbery, burglary, and escape. A general verdict of first-degree murder was returned against the appellant and Taylor was found guilty of third-degree murder. The judge followed the jury’s twelve-to-zero recommendation that the appellant be sentenced to death. 525 So. 2d at 835-836. Grossman’s sentence was supported by four aggravating circumstances: (1) the murder was committed during the course of a robbery or burglary; (2) the murder was 3 committed for the purpose of avoiding arrest; (3) the murder was committed to disrupt or hinder law enforcement; and (4) the murder was especially wicked, evil, atrocious, or cruel.1 The judge did not find any mitigating factors which outweighed the aggravating circumstances. Grossman previously litigated a postconviction appeal in this Court, Grossman v. State, Florida Supreme Court Case No. 87,121, as well as a petition for writ of habeas corpus, Grossman v. Dugger, Florida Supreme Court Case No. 75,738. Relief was denied in both cases. Grossman v. State, 708 So. 2d 249 (Fla. 1997). The postconviction issues considered and rejected by this Court were: (1) ineffective assistance of counsel at the penalty phase; (2) Brady v. Maryland, 373 U.S. 83 (1963) violations; (3) witness Brewer was a State agent; (4) ineffective assistance of counsel at the guilt phase; (5) ineffective assistance of counsel in procuring a mental health exam; (6) faulty jury instruction on the heinous, atrocious or cruel aggravating factor; (7) trial counsel had a conflict of interest; (8) the defendant was not present at all critical stages; (9) prosecutorial misconduct; and (10) improper weighing of aggravating and mitigating circumstances. His habeas petition asserted three claims: (1) ineffective assistance of 1Factors (2) and (3) were merged and treated as one factor by the trial judge. 4 appellate counsel; (2) Caldwell v. Mississippi, 472 U.S. 320 (1985), error; and (3) recent decisions of this Court, including Campbell v. State, 571 So. 2d 415 (Fla. 1990), Porter v. State, 564 So. 2d 1060 (Fla. 1990), Hallman v. State, 560 So. 2d 223 (Fla. 1990), and Brown v. State, 526 So. 2d 903 (Fla. 1988), compelled relief. RESPONSE TO REQUEST FOR ORAL ARGUMENT Grossman’s petition includes a request for this Court to schedule an oral argument on the petition. Respondent respectfully submits that no oral argument is necessary. Grossman has raised three claims which are procedurally barred and clearly without merit. No useful purpose would be served by scheduling oral argument for these claims, and to preserve scarce state and judicial resources, this Court should dispense with oral argument in this case. In addition, this Court should resolve Grossman’s petition as expeditiously as possible, because Grossman’s federal habeas petition, which has been pending since 1998, is currently administratively closed and will not be considered until this Court resolves the pending state habeas petition (see App. 1, orders and pleading from United States District Court). SUMMARY DISMISSAL OF PETITION 5 Grossman’s current petition should be summarily dismissed. It is untimely. See Mann v. Moore, 794 So. 2d 595, 598 (Fla. 2001), cert. denied, 536 U.S. 962 (2002). In addition, the petition is successive, and it presents issues which could and should have been raised in Grossman’s prior state habeas petition. Therefore, these claims are barred. King v. Moore, 808 So. 2d 1237, 1246 (Fla. 2002); Johnson v. Singletary, 647 So. 2d 106, 109 (Fla. 1994); Mills v. Dugger, 574 So. 2d 63, 65 (Fla. 1990). The petition asserts that it is properly filed because “new law” has developed since the filing of Grossman’s initial habeas petition, citing Harvey v. State, 28 Fla. L. Weekly S513 (Fla. July 3, 2003); Nixon v. State, 28 Fla. L. Weekly S597 (Fla. July 10, 2003); Bottoson v. Moore, 833 So. 2d 693 (Fla. 2002); King v. Moore, 831 So. 2d 143 (Fla. 2002); Wiggins v. Smith, 123 S. Ct. 2527 (2003); and Ring v. Arizona, 536 U.S. 584 (2002). However, none of these cases provide any basis for the filing of a successive petition. Harvey, Nixon and Wiggins merely apply claims of ineffective assistance of counsel to specific factual situations; Ring invalidated the Arizona death penalty scheme and, as this Court recognized in Bottoson and King, did not impact Florida law. As Petitioner has framed his issues in three distinct claims, the procedural bars applicable will be more fully developed within the framework of the State’s 6 substantive response to each issue. 7 ARGUMENT ISSUE I WHETHER GROSSMAN’S PRIOR CLAIM OF INEFFECTIVE ASSISTANCE OF GUILT PHASE COUNSEL SHOULD BE REVISITED IN LIGHT OF HARVEY V. STATE, AND NIXON V. STATE. In his first claim, Grossman asserts that his trial attorneys were ineffective for conceding his guilt without his knowledge and consent. As previously noted, this claim is subject to summary dismissal as it is procedurally barred for a number of reasons. First, a claim of ineffective assistance of trial counsel is not properly presented in a habeas petition; this Court will only assess the performance of appellate attorneys in a habeas action. Shere v. State, 742 So. 2d 215, 217, n.6 (Fla. 1999) (claim of ineffective assistance must be presented to court where alleged ineffectiveness occurred); State v.
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