Supreme Court of Florida
JOHNNY L. ROBINSON,
MICHAEL W. MOORE, etc.,
[August 31, 2000]
Johnny L. Robinson, a state prisoner under sentence of death, petitions this
Court for a writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(9), Fla.
Const. For the reasons stated below, we deny the petition for habeas relief, finding
no merit in petitioner’s claims that his conviction and sentence were illegally
We deny the [State’s] Motion to Dispense With Oral Argument as moot since Robinson never
sought oral argument. We also deny the State’s Motion to Dismiss on Procedural Bar wherein the
Robinson was indicted for first-degree murder, kidnapping, armed robbery,
and sexual battery. Robinson pled not guilty and was tried and found guilty of all
the charges. The jury recommended a sentence of death by a nine-to-three vote.
Upon finding seven aggravating circumstances, the trial court sentenced Robinson
We affirmed Robinson's conviction on direct appeal, but vacated his
sentences. See Robinson v. State, 520 So. 2d 1, 5 (Fla. 1988). The noncapital
sentences were vacated because of an improper guideline departure. The death
sentence was remanded for a new penalty phase because the State impermissibly
argued a nonstatutory aggravating factor, and because the State improperly raised
an issue of racial bias at the penalty phase of the trial. See id.
In the new penalty phase, the jury recommended a death sentence by a vote
of eight to four. The trial court, upon finding six aggravating circumstances,
sentenced Robinson to death on the capital offense and imposed concurrent life
State argues that Robinson failed to file his habeas writ simultaneously with his rule 3.850 motion, in
violation of Florida Rule of Criminal Procedure 3.851(b)(2). Rule 3.851(b)(2) requires that all petitions
for extraordinary relief be filed simultaneously with the initial brief in the appeal of the circuit court’s
denial of the death-sentenced prisoner’s rule 3.850 motion. However, this restriction applies to deathsentenced individuals whose convictions and sentences became final after January 1, 1994. See Fla. R.
Crim. P. 3.851(b)(6). Robinson’s conviction and sentence became final when the United States
Supreme Court denied certiorari on the appeal of his second direct appeal in October 1991. See
Robinson v. State, 574 So. 2d 108 (Fla. 1991), cert. denied, Robinson v. Florida, 502 U.S. 841
(1991). Robinson’s petition is therefore properly before this Court.
sentences on the noncapital offenses. We affirmed the sentences. See Robinson
v. State, 574 So. 2d 108 (Fla. 1991), cert. denied, 502 U.S. 841 (1991). The facts
as described in our review reflect:
The resentencing jury heard evidence showing that
Beverly St. George left her Plant City home, bound for
Quantico, Virginia, on the morning of August 11, 1985.
Her car broke down enroute. Police discovered her
partially clothed body the next morning in a cemetery
located in St. Johns County, with two gunshot wounds to
her head. Robinson and Clinton Bernard Fields,
seventeen, were arrested for the murder.
Robinson gave a statement to the police explaining
that he and Fields came upon St. George's car while
traveling to Orlando on I-95 and pulled over to render aid.
She accompanied them to the cemetery, where Robinson
alleged she engaged in consensual sexual activity on the
hood of his car. Robinson claimed that the gun, which
he had removed from his belt and placed on the hood,
went off accidently, shooting her in the face. Robinson
then shot her again, stating: "How do you tell someone I
accidently shot a white woman?"
Fields testified against Robinson at the guilt phase of
the first proceedings and completely contradicted
Robinson's version of the crimes. He refused to testify at
the resentencing hearing and the court allowed his
redacted testimony to be read to the jury. That testimony
indicated that Robinson pulled in behind St. George's
parked car and ordered her into his car at gunpoint,
where he handcuffed her. He drove to the cemetery,
where he sexually assaulted her on the hood of his car.
He then ordered Fields to do the same, and Fields
complied. Afterward, Robinson expressed concern that
she could identify them. He then walked up to her and
put the gun to her cheek. Fields heard a shot, saw St.
George fall, and watched Robinson stand over her and
fire a second shot.
The State played a video tape of the crime scene and
described the evidence recovered there, including a
.22-caliber long rifle shell casing and a black purse strap.
The defense presented the testimony of Dr. Harry
Krop, a clinical psychologist. Dr. Krop found
significance in Robinson's background and upbringing.
He testified that Robinson's childhood was marked by
constant physical abuse. He was subjected to beatings
with a leather belt, with a switch while his hands were
tied, and to beatings while forced to squat with a broom
handle between his legs for indefinite periods. Robinson
also was sexually abused at the age of seven by his uncle,
by the fifteen-year-old wife of his grandfather, and at
migrant labor camps between the ages of twelve and
Dr. Krop testified that Robinson's background
produced an antisocial personality disorder and a
psychosexual disorder. He indicated that both disorders
were treatable. The doctor testified that he believed seven
nonstatutory mitigating circumstances existed, including
Robinson's use of alcohol on the night of the offenses.
Robinson, 574 So. 2d at 109-10.
Robinson subsequently filed a rule 3.850 motion for postconviction relief
and we affirmed the trial court’s denial of his rule 3.850 motion. See Robinson v.
State, 707 So. 2d 688 (Fla. 1998). He now files this habeas corpus petition,
challenging the legality of his conviction and death sentence.
In his petition, Robinson contends: (1) that appellate counsel’s failure to
raise on direct appeal the impropriety of the State’s injection of racial prejudice
constitutes ineffective assistance of counsel; (2) that appellate counsel was
ineffective for not raising on direct appeal that race discrimination permeates the
justice system in St. Johns County to the extent of preventing Robinson, a black
defendant, from getting a fair trial and sentence; (3) that appellate counsel was
ineffective for not raising on direct appeal the State’s violation of Brady/Gigilio;2
(4) that the prosecutor’s improper closing argument at the penalty phase rendered
the death sentence unreliable and appellate counsel was ineffective for not raising
this claim on direct appeal; (5) that the trial court’s and the prosecutor’s assertion
that sympathy and mercy were improper considerations for the jury deprived
Robinson of a reliable and individualized sentencing determination; and (6) that the
jury weighed invalid and unconstitutionally vague aggravating circumstances.3
We first address Robinson’s claims as to the ineffective assistance of
appellate counsel. In ascertaining the merit of a habeas petition based on a
challenge of ineffective assistance of appellate counsel, it is appropriate to
[F]irst, whether the alleged omissions are of such
Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972).
Issue 6 contains numerous subissues which we address in the order presented by Robinson.
magnitude as to constitute a serious error or substantial
deficiency falling measurably outside the range of
professionally acceptable performance and, second,
whether the deficiency in performance compromised the
appellate process to such a degree as to undermine
confidence in the correctness of the result.
Teffeteller v. Dugger, 734 So. 2d 1009, 1027 (Fla. 1999) (quoting Suarez v.
Dugger, 527 So. 2d 190, 192-93 (Fla. 1988)). Under this analysis, appellate
counsel will not be deemed ineffective for failing to raise issues not preserved for
appeal. See Medina v. Dugger, 586 So. 2d 317, 318 (Fla. 1991).
However, an exception may be made where appellate counsel fails to raise a
claim which, although not preserved at trial, presents a fundamental error. See
Roberts v. State, 568 So. 2d 1255, 1261 (Fla. 1990). A fundamental error is
defined as an error that "reaches down into the validity of the trial itself to the extent
that a verdict of guilty could not have been obtained without the assistance of the
alleged error." Kilgore v. State, 688 So. 2d 895, 898 (Fla. 1997) (quoting State v.
Delva, 575 So. 2d 643, 644-45 (Fla. 1991)).
Robinson asserts that the following colloquy between the State and its
witness demonstrates fundamental error in that the prosecutor deliberately injected
racial prejudice in the trial:
[State]: Now are you sure that Mr. Robinson used those exact
words about shooting the 'white bitch'?
[witness]: Yes, yes.
No objection was raised by Robinson’s trial counsel to this colloquy. However,
Robinson now claims that even without an objection this brief exchange rendered
the entire proceedings fundamentally unfair. We disagree.
Initially, we observe that while it was the prosecutor who asked the question,
it was actually the witness who asserted that the word “white” was used by the
defendant. This was the factual testimony of the witness as to what was said by the
defendant. Further, this was not the only time that the victim was referred to as
“white” without objection. As noted in the statement of the facts, Robinson
himself was directly quoted as being concerned that he had assaulted a white
woman. In addition, it does not appear that this testimony played a critical role in
the State’s case against Robinson. To the contrary, the record reflects that the
evidence of guilt, which included a confession by Robinson and the testimony of
an eyewitness to the murder, was overwhelming. Hence, we conclude that the mere
use of this wording in a question by the prosecution does not rise to the level of
fundamental error. See Kilgore, 688 So. 2d at 698. Accordingly, consistent with
the standard enunciated in Teffeteller, we conclude appellate counsel's decision not
to raise this issue as a fundamental error fell within the bounds of professionally
acceptable performance and does not "undermine confidence in the correctness of
the result." 734 So. 2d at 1027. We therefore find this claim without merit.
Robinson next asserts that appellate counsel rendered ineffective assistance
when he failed to argue on appeal that race discrimination so permeates the justice
system in St. Johns County that Robinson, a black defendant, could not get a fair
trial and sentence. We note that specific issues relating to the racial makeup of the
grand jury, the venire, and resentencing jury were addressed in the postconviction
proceedings and the appeal of the denial of Robinson’s rule 3.850 motion and
those claims were denied on the merits. See Robinson, 707 So. 2d at 698.
However, the separate claim of racial discrimination in the seeking and imposition
of the death penalty is apparently being raised for the first time through this
ineffective assistance of appellate counsel claim.
While we may sometimes be reluctant to invoke a procedural bar to
colorable claims, we have no such reluctance here. This claim was clearly not
properly preserved for appellate purposes by making a proper record or objection
in the trial court. Without such record or objection, it is virtually impossible for an
appellate counsel to even know of the occurrence of any irregularities at trial. As
such, he cannot be deemed ineffective for not raising an issue that was not properly
preserved as in the current case.
Even if preserved, however, it is obvious that Robinson’s claim would fail.
Following the federal standard in analyzing a claim of racial discrimination in the
prosecutor's decision to seek the death penalty, we have held that the claimant, in
order to prevail, "must prove that the decisionmakers in his case acted with
discriminatory purpose." Foster v. State, 614 So. 2d 455, 463 (Fla. 1992) (quoting
McCleskey v. Kemp, 481 U.S. 279, 292 (1987)). Further, an inference of abuse of
prosecutorial discretion requires "exceptionally clear proof" of discrimination. Id.;
see also Jordan v. State, 694 So. 2d 708, 711 (Fla. 1997). We conclude that
Robinson does not meet Foster’s difficult standard,4 and appellate counsel has not
Robinson now submits statistical data allegedly showing a disparity in the imposition of the
death penalty in St. Johns County. Specifically, between 1976 and 1987, fifty-nine homicides were
committed in St. Johns. Thirty-three of the victims were white; twenty-five were black; and the race of
one victim was unknown. Thus, forty-two percent of the homicide victims were black. In this same
period, three death sentences were imposed in homicide cases. None of these death sentences was
imposed in a case where the victim was black. Robinson further submits that more recently compiled
data from the entire Seventh Judicial Circuit also show that the odds of a death sentence are much
higher in cases in which a black is accused of killing a white than in other homicide cases.
Similar arguments were unsuccessfully raised and rejected in Foster. Foster submitted a study
conducted by his counsel which, he argued, showed that Bay County defendants were four times more
likely to be charged with first-degree murder where the victims were white. See Foster, 614 So. 2d at
463. Of the first-degree-murder defendants, white-victim defendants were six times more likely to go
to trial, and this group was twenty-six times more likely to be convicted of first-degree murder. We
concluded that despite the statistical data, Foster failed to show that the prosecutor acted with
purposeful discrimination. See id.
Robinson's prosecutor was actually deposed and stated that his decision to seek the death
penalty was based mainly on Robinson's prior record. Specifically, he said:
[State]: I think as a prosecutor when I see a guy who has a record like Robinson had,
who had just been released recently, had raped somebody else up in Virginia, . . . he
had . . . four prior rape convictions, if my memory serves me correctly, three or four,
and he was on parole for it in Maryland, I think the guy deserves the death penalty. I
mean, here he had just raped some girl in Virginia and then a week or two weeks later
been shown to have been ineffective for not raising this claim. See Suarez v.
Dugger, 527 So. 2d 190, 193 (Fla. 1988).
Robinson next asserts that appellate counsel was ineffective for not raising as
an issue the State’s failure to disclose prior inconsistent statements of Clinton
Fields, the eyewitness to the crime. As acknowledged by Robinson, in our
affirmance of the trial court’s denial of his rule 3.850 motion, we stated that this
issue appeared to be procedurally barred. See Robinson, 707 So. 2d at 693.
Nevertheless, we fully addressed this claim and found it to be without merit. See
id. at 693-95. Accordingly, we find appellate counsel was not ineffective for not
raising a claim which this Court has subsequently reviewed and found to be
meritless. See Suarez, 527 So. 2d at 193.
Robinson next asserts that appellate counsel was ineffective for not raising
he rapes this girl in St. Augustine and kills her . . . .
Record on Appeal (Robinson, 707 So. 2d at 688) at 920-21.
Additionally, this particular prosecutor stated that he had sought the death penalty in only two
cases throughout his service at the state attorney's office. Of the two cases, one defendant was black,
the other white, though the race of the victims was not mentioned. Hence, in the instant case, variables
other than race might explain the prosecutor's decision to seek the death penalty. On these facts,
Robinson does not meet the high standard of showing "exceptionally clear proof" of discrimination on
the part of this prosecutor. See Foster, 614 So. 2d at 463; Jordan, 694 So. 2d at 711.
Finally, it should be noted that there were many blacks in the venire. The prosecutor stated that
he was in fact disappointed when defense counsel, as directed by Robinson, struck every potential
black juror. See Record on Appeal at 938-940. In light of such a course of action by Robinson during
jury selection, he cannot now maintain the current claim with regard to the imposition of the death
an issue of the prosecutor’s allegedly improper closing arguments at the penalty
phase. Once again, we observe that this claim was not properly preserved at trial
so that appellate counsel could raise it on appeal. In addition, we have rejected a
similar claim asserting ineffective assistance of trial counsel as procedurally barred
in Robinson’s appeal of his rule 3.850 motion, although the merit of the underlying
claim was not addressed. See Robinson, 707 So. 2d at 698. Further, we conclude
that Robinson cannot prevail on the merits.
In the first part of this claim, Robinson asserts that the State misstated the
exchange between the victim and the two codefendants. Upon examination, we
find the prosecutor’s remarks as to what the victims said did not materially depart
from what the witness actually testified to or were proper inferences from the
witness's testimony. At most, the prosecutor's remarks would have constituted
harmless error. See James, 695 So. 2d at 1234 ("[W]e conclude that the
prosecutor's poorly phrased comment was a harmless error as there is no
possibility that it contributed to the outcome in this case.").
Robinson also claims that the prosecutor made an impermissible distinction
between statutory and nonstatutory mitigating factors. Again, we have examined
the statements and conclude that, at most, the State appears to have merely
emphasized the number of aggravating factors. In addition, it was accurate on this
record for the State to claim there were no statutory mitigators, and the fact that the
prosecutor pointed that out did not necessarily imply that the statutory factors
should have been weighed more heavily than the nonstatutory ones. Furthermore,
this would at worst constitute harmless error. See James, 695 So. 2d at 1234.
Robinson also argues that the prosecutor argued for a nonstatutory
aggravating circumstance by stating the following:
[State]: She paid the ultimate penalty with her life. She didn't do
anything wrong, I would suggest to you. She did everything by
the textbook. Went along with the whole ball of wax, submitted
herself to the ultimate humiliation. For what? To be given the
[State]: I would suggest Mr. Robinson, as a result of this,
deserves the ultimate punishment and nothing less . . . .
While these comments by the State were improper, they still do not rise to the level
of fundamental error that would require reasonable appellate counsel to assert error
on appeal or that would require a new sentencing hearing. See James, 695 So. 2d
at 1234; Bertolotti v. State, 476 So. 2d 130, 133 (Fla. 1985) (finding that although
prosecutor's comments exceeded proper bounds of argument, misconduct was not
so outrageous as to taint validity of jury's recommendation).
Therefore, we find appellate counsel was not ineffective for failing to raise
any of the above claims relating to the prosecutor’s comments because they were
not objected to and at worst constitute harmless error. See Suarez, 527 So. 2d at
Last, Robinson asserts that he was deprived of an individualized sentencing
determination because of the trial court’s and the prosecutor’s comments
discouraging reliance on sympathy, anger, bias or prejudice by the jury. These
claims could have been raised on appeal and are not properly raised here.
Similarly, Robinson asserts that the jury improperly weighed several statutory
aggravating circumstances because they are invalid and unconstitutionally vague.
Again, however, we conclude these claims should have been properly raised in
prior proceedings and are not properly raised in this habeas petition. 5
Accordingly, for the reasons expressed above, we deny Robinson’s petition
for habeas corpus relief.
It is so ordered.
SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.
WELLS, C.J., concurs in result only.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
As to Robinson’s claims relating to HAC, this Court has already ruled in favor of Robinson on
direct appeal in finding that the trial court erred in finding the existence of the HAC aggravator. See
Robinson, 574 So. 2d at 112. The Court went on to hold that although HAC was disallowed, the trial
court's finding was harmless in light of the weight and validity of the remaining five aggravating factors.
Original Proceeding - Habeas Corpus
John W. Moser, Capital Collateral Regional Counsel, and James H. Walsh, Chief
Assistant CCRC, Capital Collateral Regional Counsel - Middle Region, Tampa,
Robert A. Butterworth, Attorney General, and Judy Taylor Rush, Assistant Attorney
General, Daytona Beach, Florida,