Perry Alexander Taylor v. State of Florida
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Supreme Court of Florida
____________
No. SC06-615
____________
PERRY ALEXANDER TAYLOR,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
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No. SC07-1168
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PERRY ALEXANDER TAYLOR,
Petitioner,
vs.
WALTER A. MCNEIL,
Respondent.
[June 19, 2008]
PER CURIAM.
Perry Alexander Taylor appeals an order of the circuit court denying his
motion to vacate his conviction of first-degree murder and sentence of death filed
under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ
of habeas corpus. We have jurisdiction. See art. V, §§ 3(b)(1), (9), Fla. Const.
For the reasons set forth below, we affirm the trial court’s denial of Taylor’s
postconviction motion and deny Taylor’s petition for writ of habeas corpus.
FACTS AND PROCEDURAL HISTORY
The facts are taken from this Court’s opinions in Taylor’s direct appeals.
Taylor was charged with the murder and sexual battery of
Geraldine Birch whose severely beaten body was found in a dugout at
a little league baseball field. Shoe prints matching Taylor's shoes
were found at the scene. Taylor confessed to killing Birch but
claimed that the sexual contact was consensual and that the beating
from which she died was done in a rage without premeditation.
Taylor testified that on the night of the killing, he was standing with a
small group of people when Birch walked up. She talked briefly with
others in the group and then all but Taylor and a friend walked off.
Taylor testified that as he began to walk away, Birch called to him and
told him she was trying to get to Sulphur Springs. He told her he did
not have a car. She then offered sex in exchange for cocaine and
money. Taylor agreed to give her ten dollars in exchange for sex, and
the two of them went to the dugout.
Taylor testified that when he and Birch reached the dugout they
attempted to have vaginal intercourse for less than a minute. She
ended the attempt at intercourse and began performing oral sex on
him. According to Taylor, he complained that her teeth were irritating
him and attempted to pull away. She bit down on his penis. He
choked her in an attempt to get her to release him. After he succeeded
in getting her to release her bite, he struck and kicked her several
times in anger.
Taylor v. State, 583 So. 2d 323, 325 (Fla. 1991) (footnote omitted). “The jury
convicted Taylor on both counts. Upon the jury’s unanimous recommendation, the
trial judge sentenced Taylor to death.” Id.
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On direct appeal, Taylor raised three issues related to the guilt phase of his
trial. Id. at 326. First, that the trial court erred by failing to conduct an inquiry
pursuant to State v. Neil, 457 So. 2d 481 (Fla. 1984), on the State’s peremptory
challenge of a black prospective juror. Taylor, 583 So. 2d at 326. Second, that the
trial court erred in excluding testimony that the victim had used crack cocaine. Id.
at 328. Third, that the trial court erred in denying his motion for judgment of
acquittal because the State’s circumstantial case was legally insufficient to prove
sexual battery and premeditation. Id. We rejected these claims and affirmed
Taylor’s convictions.
Additionally, Taylor raised three issues related to the penalty phase of his
trial, but we addressed only one. Id. at 329. We concluded that the prosecution
overstepped the bounds of proper argument and we vacated Taylor’s sentence and
remanded for resentencing. Id. at 330.
At resentencing the jury again recommended death:
The new jury recommended death by an eight to four vote. The
judge found the following aggravating factors: (1) Taylor had a
previous felony conviction involving the use or threat of violence; (2)
the capital felony occurred during the commission of a sexual battery;
and (3) the capital felony was especially heinous, atrocious, or cruel.
The court found no statutory mitigators but did give some weight to
Taylor's deprived family background and the abuse he was reported to
have suffered as a child. The court considered but gave little weight
to Taylor's remorse, to psychological testimony that while Taylor has
above-average intelligence, he suffers from an organic brain injury,
and to testimony concerning Taylor's good conduct in custody. The
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judge determined that the aggravating circumstances outweighed the
mitigating factors and sentenced Taylor to death.
Taylor v. State, 638 So. 2d 30, 31-32 (Fla. 1994). Upon review we affirmed
Taylor’s conviction and sentence. Id. at 33.
Thereafter, Taylor filed a postconviction motion to vacate his judgments of
conviction and sentence on March 12, 1996. The trial court held hearings pursuant
to Huff v. State, 622 So. 2d 982 (Fla. 1993), on November 25, 1998, and April 8,
2005. Evidentiary hearings were ordered on two of the claims set out in Taylor’s
third amended motion to vacate judgments of conviction and sentence and the trial
court later issued an order denying all relief.
At the evidentiary hearings held on October 7, 2003, June 7, 2004, June 8,
2004, and March 3, 2005, the defense presented the testimony of three mental
health experts, trial counsel Nick Sinardi, prosecutor Mike Benito, penalty phase
counsel Manuel Lopez, medical examiner Dr. Lee Miller, and Taylor’s mother,
brother, and childhood social worker. The State presented evidence of two mental
health experts, obstetrician-gynecologist Dr. Catherine Lynch, and a jail deputy
who had been physically assaulted by Taylor.
In its sixty-nine page order denying relief, the trial court comprehensively
treated each of Taylor’s twenty-one claims. 1 This appeal follows.
1. Taylor’s postconviction claims were: (1) no trial transcript had been
provided; (2) his statements were admitted in error; (3) there was prosecutorial
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DISCUSSION
On appeal from the denial of rule 3.850 relief, Taylor first contends that the
trial court erred in denying his claims of newly discovered evidence, ineffective
assistance of counsel, and his Brady and Giglio claims.
DR. MILLER’S TESTIMONY
Taylor raised multiple claims concerning Dr. Miller’s trial testimony
concerning the extensive injuries suffered by the victim. The trial court addressed
these claims together, finding Taylor’s allegations of recantation by Miller as to the
victim’s sexual injuries to be an inaccurate characterization of Miller’s testimony.
The trial court denied these claims, finding no newly discovered evidence, that trial
counsel was not deficient, and that any possible deficiencies did not have the
cumulative effect of denying Taylor a fair trial.
misconduct; (4) he was absent from critical proceedings; (5) there were violations
of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S.
150 (1972), and ineffective assistance of counsel; (6) the State failed to prove
corpus delicti; (7) counsel was ineffective for failure to obtain a mental health
evaluation; (8) Taylor’s right to confront witnesses was violated; (9) the prosecutor
made improper statements; (10) defense counsel failed to obtain a mental health
expert; (11) there was ineffective assistance of counsel in other respects; (12) the
death sentence is disproportionate; (13) the sexual battery aggravator is
unconstitutional; (14) the prior conviction record admitted was obtained illegally;
(15) the aggravating factors statute is unconstitutional; (16) the jury instructions
were unconstitutional; (17) the death sentence was unconstitutional; (18) Florida’s
capital sentencing statute is unconstitutional; (19) Taylor’s rights under Ake v.
Oklahoma, 470 U.S. 68 (1985), were violated; (20) numerous trial and
resentencing errors deprived Taylor of his rights; and (21)Taylor was denied due
process.
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At trial, Dr. Miller testified that the injuries to the victim’s vagina were,
within a reasonable degree of medical probability, caused by something “inserted
into the vagina which stretched the vagina enough for it to tear over the object that
was inserted in there.” Dr. Miller further testified that the injuries were
inconsistent with someone having kicked the victim. Relying on this evidence, we
noted on review that “the medical examiner’s testimony contradicted Taylor’s
version of what happened . . . . The medical examiner testified that the extensive
injuries to the interior and exterior of the victim’s vagina were caused by a hand or
object other than a penis inserted into the vagina.” Taylor, 583 So. 2d at 329.
At the postconviction evidentiary hearing, Dr. Miller testified that the
injuries sustained were mostly confined to the labia minora and radiated inward,
while some were inside the labia minora in “what anyone would describe as the
vaginal canal.” However, Dr. Miller further testified that the injuries could
possibly have been the result of a kick if the blow had been struck where the toe of
the shoe actually went into the vagina, stretching it, that any shoe would have been
able to penetrate the victim’s vagina due to extraversion, but that ultimately the
injuries were caused by stretching and not direct impact. Miller testified that the
possibility of a kick causing the injury was “a one in a million shot” and that his
opinions as expressed at trial had not changed. He attributed any differences in his
testimony to differences in the questions being asked and, in some instances more
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elaboration in exploring possibilities. Taylor contends that had Miller’s testimony
about a kick possibly causing the vaginal injuries been presented at trial he could
not have been convicted of sexual battery or felony murder. Taylor alleges that (1)
this is new evidence that requires a new trial, (2) the State withheld this evidence,
(3) the State allowed Dr. Miller to present false testimony, or (4) his trial counsel
was deficient for not having discovered this evidence before trial.
Newly Discovered Evidence
In ruling on this issue, the trial court found Taylor’s claim of a “supposed
recantation” by Dr. Miller of his trial testimony was “not an accurate statement of
[Dr. Miller’s] testimony.” Hence, the trial court concluded Taylor had not actually
established the existence of important new evidence of his innocence of sexual
battery. We agree.
To obtain a new trial based on newly discovered evidence, Taylor must meet
two requirements: first, the evidence must be newly discovered and not have been
known by the party or counsel at the time of trial, and the defendant or defense
counsel could not have known of it by the use of diligence; second, the newly
discovered evidence must be of such quality and nature that it would probably
produce an acquittal on retrial. See Jones v. State, 709 So. 2d 512, 521 (Fla. 1998)
(citing Jones v. State, 591 So. 2d 911, 915 (Fla. 1991)). In determining whether
the evidence compels a new trial, the trial court must “consider all newly
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discovered evidence which would be admissible,” and must “evaluate the weight
of both the newly discovered evidence and the evidence which was introduced at
the trial.” Jones, 591 So. 2d at 916. This determination includes
whether the evidence goes to the merits of the case or whether it
constitutes impeachment evidence. The trial court should also
determine whether the evidence is cumulative to other evidence in the
case. The trial court should further consider the materiality and
relevancy of the evidence and any inconsistencies in the newly
discovered evidence.
Jones, 709 So. 2d at 521 (citations omitted). As noted above, the second prong of
Jones requires a showing of the probability of an acquittal on retrial.
On review, “This Court does not substitute its judgment for that of the trial
court on issues of fact when competent, substantial evidence supports the circuit
court’s factual findings . . . .” Smith v. State, 931 So. 2d 790, 803 (Fla. 2006)
(citing Windom v. State, 886 So. 2d 915, 921 (Fla. 2004)); see also Blanco v State,
702 So. 2d 1250, 1252 (Fla. 1997) (citing Demps v. State, 462 So. 2d 1074, 1075
(Fla. 1984)). In essence, the postconviction court concluded that, at trial, Dr.
Miller testified that the lacerations were not, within reasonable medical probability,
caused by a kick. Similarly, at the evidentiary hearing, Dr. Miller testified that it
was his opinion that there was only a one-in-a-million chance that the lacerations
could have been caused by a kick. Hence, because the record refutes Taylor’s
contrary interpretation of the testimony, Taylor fails to show that Miller’s
postconviction testimony qualifies as newly discovered evidence. While it is true
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that Miller’s trial testimony did not admit to this one-in-a-million possibility, we
find this omission insufficient to overturn the trial court’s conclusion that sufficient
“new evidence” had not been established.
Additionally, we note the jury was not instructed to and did not differentiate,
between first-degree premeditated murder and first-degree felony murder in
determining Taylor’s guilt. There is no indication that Taylor was convicted of
first-degree murder predicated solely upon the felony of sexual battery. This Court
previously detailed the massive injuries sustained by the victim to support the
State’s alternative theories of premeditation and felony murder:
[T]he jury reasonably could have rejected as untruthful Taylor’s
testimony that he beat the victim in a rage after she injured him.
Although Taylor claimed that the victim bit his penis, an examination
did not reveal injuries consistent with a bite. According to Taylor,
even after he sufficiently incapacitated the victim by choking her so
that she released her bite on him, he continued to beat and kick her.
The medical examiner testified that the victim sustained a minimum
of ten massive blows to her head, neck, chest, and abdomen. Virtually
all of her internal organs were damaged. Her brain was bleeding. Her
larynx was fractured. Her heart was torn. Her liver was reduced to
pulp. Her kidneys and intestines were torn from their attachments.
Her lungs were bruised and torn. Nearly all of the ribs on both sides
were broken. Her spleen was torn. She had a bite mark on her arm
and patches of her hair were torn off. Her face, chest, and stomach
were scraped and bruised. Although Taylor denied dragging the
victim, evidence showed that she had been dragged from one end of
the dugout to the other. The evidence was sufficient to submit the
question of premeditation to the jury.
Taylor, 583 So. 2d at 329.
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Accordingly, even if Dr. Miller’s alleged change in testimony were
considered sufficient to call into question Taylor’s sexual battery conviction, it
would not be sufficient to outweigh the evidence that Taylor committed
premeditated murder or to cast doubt on his conviction for first-degree murder
based upon premeditation. Ultimately, then, even if we were to construe Dr.
Miller’s testimony at the evidentiary hearing the way Taylor seeks, there remains
an abundance of evidence the jury could have used to convict Taylor of
premeditated first-degree murder. Hence, we conclude the trial court did not err in
denying this claim.
Giglio/Brady
In addition to the claim of newly discovered evidence arising from Dr.
Miller’s testimony, Taylor asserts that the trial court erred in denying his claim that
through Miller’s testimony the State intentionally permitted false or misleading
evidence to be presented to the jury in violation of Giglio (where the United States
Supreme Court held it to be a violation of due process when a prosecutor failed to
disclose to the defense a promise made by the prosecution to a key witness that he
would not be prosecuted if he testified for the prosecution). Finding there was no
change in Dr. Miller’s testimony, the trial court denied this claim. We conclude
that the trial court properly denied Taylor’s claim because it is refuted by the
record.
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To prevail under Giglio, a claimant must show that false testimony was
presented by the State and that there is a reasonable probability that the false
evidence affected the judgment of the jury. See Ventura v. State, 794 So. 2d 553,
564-65 (Fla. 2001) (holding that a witness’s testimony was not material under
Giglio where the witness was significantly impeached); Routly v. State, 590 So. 2d
397, 400-01 (Fla. 1991) (finding that an equivocal statement did not have a
reasonable probability of affecting the judgment of the jury).
Taylor alleges that Dr. Miller’s trial testimony was false because it was
contradicted by his testimony at the evidentiary hearing. As the trial court
concluded, the record does not support this allegation. Dr. Miller’s testimony did
not materially change. When the trial court finds that the testimony is not false,
and there is competent substantial evidence to support that finding, we defer to the
trial court’s findings. Accordingly, Taylor has not shown cause for relief under
Giglio.
Alternatively, Taylor asserts that the State withheld material, favorable
information in violation of Brady. Brady requires the State to disclose material
information within its possession or control that is favorable to the defense.
Mordenti v. State, 894 So. 2d 161, 168 (Fla. 2004) (citing Guzman v. State, 868
So. 2d 498, 508 (Fla. 2003)). To establish a Brady violation, the defendant has the
burden to show (1) that favorable evidence, (2) was willfully or inadvertently
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suppressed by the State, and (3) because the evidence was material, the defendant
was prejudiced. Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Cardona v.
State, 826 So. 2d 968, 973 (Fla. 2002); Way v. State, 760 So. 2d 903, 910 (Fla.
2000). The remedy of retrial for the State’s suppression of evidence favorable to
the defense is available when “the favorable evidence could reasonably be taken to
put the whole case in such a different light as to undermine confidence in the
verdict.” Strickler, 527 U.S. at 290 (quoting Kyles v. Whitley, 514 U.S. 419, 435
(1995)).
Here, however, the trial court has concluded, and we agree, that neither the
State nor its actors suppressed evidence. Because the trial court has concluded that
Dr. Miller’s testimony is unchanged, there is nothing the State has been
demonstrated to have suppressed.
INEFFECTIVE ASSISTANCE OF COUNSEL
Taylor raised multiple claims of ineffective assistance of defense counsel
stemming from his representation at trial and both penalty phases. Taylor also
alleged ineffective assistance in the alternative should the court determine any of
his other claims insufficient for lack of due diligence by counsel. In addressing
these claims, the trial court found that Taylor failed to demonstrate deficiency or
any resulting prejudice, the two prongs of Strickland v. Washington, 466 U.S. 668
(1984). We agree.
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We have held that for ineffective assistance of counsel claims to be
successful, the two requirements of Strickland must be satisfied:
First, the claimant must identify particular acts or omissions of the
lawyer that are shown to be outside the broad range of reasonably
competent performance under prevailing professional standards.
Second, the clear, substantial deficiency shown must further be
demonstrated to have so affected the fairness and reliability of the
proceeding that confidence in the outcome is undermined. A court
considering a claim of ineffectiveness of counsel need not make a
specific ruling on the performance component of the test when it is
clear that the prejudice component is not satisfied.
Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986) (citations omitted). To
prove the deficiency prong under Strickland, Taylor must prove that counsel’s
performance was unreasonable under the “prevailing professional norms.” Morris
v. State, 931 So. 2d 821, 828 (Fla. 2006) (quoting Strickland, 466 U.S. at 688).
“To establish the [prejudice] prong under Strickland, the defendant must show that
‘there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ ” Id. (quoting
Strickland, 466 U.S. at 694).
Failure to Perform Due Diligence
Taylor asserts this ineffectiveness argument in the alternative for his newly
discovered evidence claims relating to Dr. Miller’s testimony. Taylor alleges that
should this Court find that any evidence could have been discovered at trial, then
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trial counsel was deficient for failure to discover said evidence. As discussed
above with Dr. Miller’s testimony, and below with Taylor’s other claims, we
conclude there was no material new evidence presented during these proceedings.
Further, unlike the situation in State v. Gunsby, 670 So. 2d 920 (Fla. 1996), upon
which Taylor relies, the State has not been shown to have withheld evidence, and
trial counsel has not been found to have failed to object to abuses by the State. See
id. at 922-24. Each of Taylor’s claims of newly discovered evidence is sufficiently
refuted by the trial and postconviction record. None of them fail for counsel’s lack
of diligence. For example, we find there has been no demonstration of
ineffectiveness under Strickland as to counsel’s alleged failure to elicit Dr. Miller’s
“one in a million” testimony at trial. Accordingly, we reject Taylor’s claim that
counsel’s performance was deficient.
Failure to Prepare Taylor to Testify
Contrary to Taylor’s assertion below, and now on appeal, trial defense
counsel, Nick Sinardi, testified that he did prepare Taylor to testify, and his trial
strategy was to show that Taylor did not have the intent to murder the victim.
Sinardi testified that he believed it was in Taylor’s best interest to take the stand in
order for the jury to evaluate his defense. Further, although Sinardi testified that
he did not rehearse Taylor’s testimony, he did tell Taylor to testify truthfully.
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Because Taylor had given a detailed confession, defense counsel felt he was
limited in available strategies.
After hearing defense counsel’s testimony, the trial court found that Taylor
failed to demonstrate any deficiency or resulting prejudice from the performance of
guilt phase counsel. Further, the trial court found that Sinardi made reasonable
tactical decisions under the circumstances he faced and with the limited choices
available.
In Zack v. State, 911 So. 2d 1190 (Fla. 2005), this Court rejected a similar
claim:
Zack argue[d] that trial counsel failed to adequately prepare
him to testify at trial and failed to inform him about what would occur
during cross-examination. Zack contend[ed] that had he been
adequately prepared and informed of the hazards of crossexamination, he would not have testified. Zack stated that trial
counsel gave him no choice but to testify, and that he was only told
that he was going to testify after trial began.
Id. at 1198. The trial court found that Zack had testified on his own behalf at trial
to give his version of events even on cross-examination. Id. at 1199. The trial
court further found that Zack showed a desire to explain himself on crossexamination, and that Zack failed to show either that counsel failed to prepare him
or that he suffered any prejudice. Id. at 1199-1200. This Court accepted the trial
court’s findings. Id.
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This Court has also held that trial counsel cannot be deemed ineffective
simply because postconviction counsel now disagrees with trial counsel’s strategy
or because there were other choices. See Davis v. State, 875 So. 2d 359, 366 (Fla.
2003) (citing Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000)); see also
Henry v. State, 862 So. 2d 679, 681-82 (Fla. 2003) (ineffective assistance claims
for reliance on theories of self-defense and diminished capacity failed because they
were conclusively refuted by the record).
On the record before us, we conclude that Taylor, like Zack, has not shown
that he testified against his will, nor has he met the burden to demonstrate that
Sinardi’s strategy was unreasonable under the circumstances, especially
considering the limited choices available to the defense. Because we agree with
the trial court that Taylor has failed to demonstrate deficient performance, we need
not address prejudice. See, e.g., Waterhouse v. State, 792 So. 2d 1176, 1182 (Fla.
2001) (because Strickland requires both prongs, it is not necessary to address
prejudice when a deficient performance has not been shown).
Failure to Investigate and Present Mental Health Issues
Taylor claimed below that defense counsel failed to demand a hearing on
Taylor’s competency or present evidence of Taylor’s mental health problems.
However, Sinardi testified at the postconviction hearing that he did not feel there
was any reason to question Taylor’s competence. The trial court found that Taylor
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did receive a competent mental health evaluation at trial, and he did not prove that
his counsel’s investigation of this issue was deficient.
Taylor cites Futch v. Dugger, 874 F.2d 1483 (11th Cir. 1989), to support his
claim. In Futch, the Eleventh Circuit considered a habeas petition brought by a
defendant convicted of second-degree murder. Id. at 1484. The court stated, “In
order to demonstrate prejudice from counsel’s failure to investigate his
competency, petitioner has to show that there exists ‘at least a reasonable
probability that a psychological evaluation would have revealed that he was
incompetent to stand trial.’ ” Id. at 1487 (quoting Alexander v. Dugger, 841 F.2d
371, 375 (11th Cir. 1988)). The court stated that if Futch was correct in his
allegation that a prison psychologist evaluated him and found him incompetent and
that trial counsel was aware of this finding, Futch met this burden. Id. The
Eleventh Circuit remanded for evidentiary hearing on this issue. Id. at 1488.
Unlike the petitioner in Futch, however, Taylor has had an evidentiary
hearing on this claim. And, unlike Futch, Taylor has never been declared
incompetent by any of the psychologists and neuropsychologists who have
examined him. Despite Taylor’s reading of this case, the Eleventh Circuit did not
mandate that trial counsel investigate a defendant’s competency without some
cause. Instead, in Futch, the petitioner specifically alleged that although counsel
had substantial reason to suspect petitioner’s competency, he still failed to
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investigate. Id. at 1487. We conclude that the trial court did not err in holding
Taylor has not demonstrated deficiency of his trial counsel in regard to counsel’s
investigation of any mental health issues.
Failure to Investigate and Present Mitigation
Taylor asserts that there were more mitigating factors that could have been
presented that counsel, Manuel Lopez, failed to present, but does not specify what
these factors could be. Instead, Taylor attempts to demonstrate counsel’s
ineffectiveness by focusing solely on the number of hours Lopez spent preparing
for resentencing.
We have held:
“An attorney has a duty to conduct a reasonable investigation,
including an investigation of the defendant's background, for possible
mitigating evidence.” Porter v. Singletary, 14 F.3d 554, 557 (11th
Cir.), cert. denied, 513 U.S. 1009, 115 S. Ct. 532, 130 L.Ed.2d 435
(1994). The failure to do so “may render counsel's assistance
ineffective.” Bolender [v. Singletary], 16 F.3d [1547,] 1557 [(11th
Cir. 1994)].”
Rose v. State, 675 So. 2d 567, 571 (Fla. 1996). In Rose, we found counsel was
ineffective where counsel made practically no investigation, and Rose was able to
demonstrate substantial mitigation that counsel failed to uncover and present. Id.
at 572. The record demonstrated that counsel was inexperienced, and this Court
held that his uninformed decision did not amount to strategy. Id. Likewise, in
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Hildwin v. Dugger, 654 So. 2d 107 (Fla. 1995), the petitioner also was able to
demonstrate mitigation that trial counsel failed to uncover. Id. at 110.
The trial court found, and we conclude, that trial counsel's
performance at sentencing was deficient. Trial counsel's sentencing
investigation was woefully inadequate. As a consequence, trial
counsel failed to unearth a large amount of mitigating evidence which
could have been presented at sentencing. For example, trial counsel
was not even aware of Hildwin's psychiatric hospitalizations and
suicide attempts.
Id. at 109.
However, “Strickland does not require counsel to investigate every
conceivable line of mitigating evidence no matter how unlikely the effort would be
to assist the defendant at sentencing.” Wiggins v. Smith, 539 U.S. 510, 533
(2003). “Rather, in deciding whether trial counsel exercised reasonable
professional judgment with regard to the investigation and presentation of
mitigation evidence, a reviewing court must focus on whether the investigation
resulting in counsel's decision not to introduce certain mitigation evidence was
itself reasonable.” Ferrell v. State, 918 So. 2d 163, 170 (Fla. 2005) (citing
Wiggins, 539 U.S. at 523; Strickland, 466 U.S. at 690-91). “When making this
assessment, ‘a court must consider not only the quantum of evidence already
known to counsel, but also whether the known evidence would lead a reasonable
attorney to investigate further.’ ” Ferrell, 918 So. 2d at 170 (quoting Wiggins, 539
U.S. at 527). Ultimately, in Ferrell, we agreed with the trial court’s assessment
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that trial counsel was not deficient, stating that this was not a case where counsel
presented no mitigation, nor a case where counsel made no attempt to investigate.
Id. at 171 (citing Torres-Arboleda v. Dugger, 636 So. 2d 1321, 1326 (Fla. 1994)).
The record shows this is not a case where trial counsel failed to investigate
and present available mitigating evidence. Cf. Rose, 675 So. 2d at 571-72. The
trial court’s findings of mitigation directly refute such a claim. Taylor does not
allege that counsel made no attempt to investigate mitigation or that he failed to
present something he otherwise uncovered. Importantly, Taylor makes no specific
allegation of what mitigation could have been presented that counsel failed to
present. Under these circumstances, we conclude Taylor has shown no error in the
trial court’s holding that Taylor has failed to demonstrate that counsel was
deficient. Accordingly, the Court need not address prejudice. See, e.g.,
Waterhouse, 792 So. 2d at 1182.
NEWLY DISCOVERED EVIDENCE
PET Scan
Taylor argues that a PET Scan is newly discovered evidence that shows
brain damage. However, in the prior sentencing proceedings the trial court found
Taylor’s brain damage was established as a mitigating factor, and gave it little
weight. Taylor’s argument resembles that rejected by this Court in Ferrell, stating
In fact, a capital cases defense manual prepared by the Florida
Public Defender’s Association and distributed in 1992 did not
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mention either PET or SPECT scans in a list of medical tests used to
confirm brain damage. Furthermore, the manual cautioned that even
the listed medical tests could be unreliable and did not always indicate
organic brain damage. Instead, the manual stated that
neuropsychological testing was actually more reliable in showing such
deficits.
918 So. 2d at 175 n.11. In denying this claim, the trial court relied on Ferrell and
also noted that the testimony of two experts who interpreted the scan showed that
the scan did not represent a significant indication of brain damage. As in Ferrell,
Taylor has not demonstrated that a PET scan would have been available to counsel
or even admissible at Taylor’s prior trial. Further, in light of the trial court’s
findings, Taylor has also failed to demonstrate that if the scan had been prepared, it
would have affected the outcome of Taylor’s penalty phase, since the sentencing
court did consider proof of brain damage in mitigation. Accordingly, we conclude
the trial court properly rejected this claim.
Sonya Davis
The trial court denied Taylor’s claim that trial counsel was ineffective for
failing to present the testimony of the victim’s daughter, Sonya Davis, because the
record “clearly shows Ms. Davis would not have been willing to testify in the prior
proceedings.” Additionally, the trial court denied the claim for being untimely
since the evidence of Ms. Davis was known at trial. The trial court denied
admission of Davis’s deposition because the deposition would not have been
admissible at trial and because the postconviction claim allegedly supported by the
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deposition was untimely asserted. None of these findings have been demonstrated
to have been erroneous.
The summary denial of a newly discovered evidence claim will be upheld if
the motion is legally insufficient or its allegations are conclusively refuted by the
record. McLin v. State, 827 So. 2d 948, 954 (Fla. 2002). It is evident from the
record that Taylor was aware of Davis’s existence prior to the trial, and that Davis
would have been unwilling to testify for Taylor. Additionally, as the State
correctly points out, even if Taylor had succeeded in introducing this evidence, it
would have served to impeach his own testimony and to impugn his theory of
defense. Cf. Antone v. State, 410 So. 2d 157, 162 (Fla. 1982) (holding that newly
discovered evidence that would have impeached defendant’s testimony and
changed totally his theory of defense did not meet the test that the alleged facts
must be of such a vital nature that they would have prevented entry of the
judgment). Accordingly, the trial court properly denied this claim.
PETITION FOR HABEAS CORPUS
In his petition for habeas corpus, Taylor argues that his death sentence is
unconstitutional under Johnson v. Mississippi, 486 U.S. 578 (1988), and Richmond
v. Lewis, 506 U.S. 40 (1992); that the jury instructions unconstitutionally
diminished the jury’s sense of responsibility; and that Florida’s capital sentencing
statute constitutes cruel and unusual punishment. We reject each of these claims
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on the merits. Further, we note that Taylor’s constitutional claims are procedurally
barred because they were not preserved on direct appeal.
Taylor argues that his prior violent felony aggravator was invalid because
his conviction for sexual battery in 1982 was unconstitutional because his then
deficient mental state prevented him from making a knowing, intelligent, and
voluntary waiver of his right to trial in entering a plea of nolo contendere. He
further argues that this 1982 conviction was too remote in time to qualify as an
aggravator.
In Nixon v. State, 932 So. 2d 1009, 1023 (Fla. 2006), we refused to grant
relief where the allegedly unlawful prior felony convictions had not been vacated
and were still valid. Nixon was convicted of and received a death sentence for
first-degree murder, kidnapping, and other crimes. Id. On appeal, he argued that
the prior felonies used to support the prior felony aggravator in his case were
invalid. Id. We held that because no court had vacated the prior convictions,
Johnson did not apply. Id. The invalid conviction at issue in Johnson had been
reversed by the New York Court of Appeals. Johnson, 486 U.S. at 583. Taylor’s
conviction has not been vacated by any court. Accordingly, his claim under
Johnson must fail. We also reject Taylor’s argument that the prior conviction is
too remote in time, since we have held a conviction obtained thirty-two years prior
- 23 -
to the crime in question is not too remote to be considered a valid aggravating
factor. Thompson v. State, 553 So. 2d 153, 156 (Fla. 1989).
Taylor’s claim as to the invalidity of Florida’s heinous, atrocious and cruel
aggravator is procedurally barred. Taylor cannot relitigate the merits of an issue
through a habeas petition or use an ineffective assistance claim to argue the merits
of claims that either were or should have been raised below. See Preston v. State,
970 So. 2d 789, 805 (Fla. 2007); Knight v. State, 923 So. 2d 387, 395 (Fla. 2005).
“It is important to note that habeas corpus petitions are not to be used for additional
appeals on questions which could have been, should have been, or were raised on
appeal or in a rule 3.850 motion, or on matters that were not objected to at trial.”
Parker v. Dugger, 550 So. 2d 459, 460 (Fla. 1989). We rejected a similar argument
in Doyle v. Singletary, 655 So. 2d 1120, 1121 (Fla. 1995) (holding that Doyle’s
claim was procedurally barred because Doyle had failed to pursue the issue on
appeal). As in Doyle, Taylor did not raise this claim on direct appeal and we now
reject this habeas claim for the same reason. 2
2. The lower court instructed the sentencing jury with then-standard
instructions for the “heinous, atrocious, or cruel” aggravating factor. Taylor did
not challenge the standard jury instructions at trial or on direct appeal. The United
States Supreme Court later declared Florida’s standard jury instructions for the
“heinous, atrocious, or cruel” aggravating factor unconstitutionally vague in
Espinosa v. Florida, 505 U.S. 1079, 1081 (1992). However, even though Taylor’s
resentencing occurred prior to the Espinosa decision, the jury instructions used
were not those involved in Espinosa but were the same as this Court found
constitutional in Hall v. State, 614 So. 2d 473, 478 (Fla. 1993).
- 24 -
CONCLUSION
In light of the above analysis, we affirm the trial court’s denial of Taylor’s
postconviction motion and deny Taylor’s petition for writ of habeas corpus.
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, CANTERO, and BELL, JJ.,
concur.
QUINCE, J., recused.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Two Cases:
An Appeal from the Circuit Court in and for Hillsborough County,
J. Michael McCarthy, Judge – Case No. 88-15525
And an Original Proceeding – Habeas Corpus
Bill Jennings, Capital Collateral Regional Counsel, and David Robert Gemmer,
Assistant CCR Counsel, Middle Region, Tampa, Florida,
for Appellant/Petitioner
Bill McCollum, Attorney General, Tallahassee, Florida, and Katherine V. Blanco,
Assistant Attorney General, Tampa, Florida,
for Appellee/Respondent
- 25 -
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