Victor Marcus Farr V. Michael D. Crews, Etc. (Revised Opinion)
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Supreme Court of Florida
____________
No. SC08-1406
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VICTOR MARCUS FARR,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
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No. SC09-1010
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VICTOR MARCUS FARR,
Petitioner,
vs.
KENNETH S. TUCKER, etc.,
Respondent.
[November 29, 2012]
REVISED OPINION
PER CURIAM.
Victor Marcus Farr appeals an order of the circuit court denying his motion
to vacate his convictions 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 expressed
below, we affirm the trial court’s denial of postconviction relief and deny the
petition for habeas relief.
FACTS AND PROCEDURAL HISTORY
The following facts are derived from Farr’s direct appeal:
In December 1990, Farr attempted to kidnap and then shot and
wounded [Cindy Thomas and Patsy Lynch] outside a Lake City bar.
He attempted to escape by forcibly taking a car in which [Chris Todd
and Shirley Bryant] were sitting. [Todd] fled, but Farr managed to
crank the car and escape with [Bryant] still inside. When he was
pursued by officers later, Farr deliberately accelerated the car into a
tree, hoping to kill himself and his hostage. [Bryant] was severely
injured in the crash and died of her injuries soon thereafter. Farr was
only slightly injured.
After indictment, Farr entered into an agreement with the State
in which he pled guilty to all twelve counts of the indictment. 1 As
part of the agreement, Farr requested that the state attorney ask for the
death penalty. He explained that he wanted to die. After determining
that Farr was capable of knowingly and voluntarily entering the plea
and that he understood its consequences, the trial court accepted the
guilty plea. Farr then knowingly and voluntarily waived his right to a
penalty phase jury, and the cause proceeded to sentencing.
1. Farr was indicted for: (1) grand theft (for stealing a gun from his uncle’s
home earlier on the day of the crimes); (2) attempted burglary of Lynch while
armed with a firearm; (3) attempted robbery of Lynch while armed with a firearm;
(4) attempted kidnapping of Lynch while armed with a firearm; (5) attempted
kidnapping of Thomas while armed with a firearm; (6) attempted murder of Lynch;
(7) attempted murder of Thomas; (8) burglary of Todd while armed with a firearm;
(9) kidnapping of Bryant while armed with a firearm; (10) kidnapping of Todd
while armed with a firearm; (11) robbery of Todd while armed with a firearm; and
(12) first-degree felony murder of Bryant.
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At the time of sentencing the record contained a psychiatric
report and presentence investigation report containing information
about Farr’s troubled childhood, numerous suicide attempts, the
murder of his mother, psychological disorders resulting in
hospitalization, sexual abuse suffered as a child, and his chronic
alcoholism and drug abuse, among other matters. In imposing the
death penalty, the court apparently was influenced by Farr’s decision
not to present a case in mitigation. The judge considered in mitigation
only Farr’s apparent intoxication at the time of the murder, which the
court found not to be of mitigating value and ignored the mitigating
evidence contained in the presentence report and the psychiatric
report.
In aggravation the trial court found that: (1) Farr had
previously been convicted of another capital felony or of a felony
involving the threat of violence to the person; (2) the homicide was
committed while Farr was fleeing from the commission of a
kidnapping, a robbery, two attempted kidnappings, and an attempted
robbery; (3) the homicide was committed to disrupt or hinder the
lawful exercise of a governmental function or the enforcement of
laws; and (4) the homicide was especially heinous, atrocious, or cruel.
Based on these findings, the trial court imposed the death sentence.
Farr v. State, 621 So. 2d 1368, 1369 (Fla. 1993) (footnotes omitted).
On direct appeal, we affirmed Farr’s convictions, but vacated Farr’s death
sentence and remanded for a new penalty phase in light of the trial court’s failure
to consider all of the available mitigation. Id. at 1370.2 At resentencing, Farr
“forbade his attorney to present a case for mitigation on remand and . . . Farr
himself took the witness stand and systematically refuted, belied, or disclaimed
virtually the entire case for mitigation that existed in the earlier appeal.” Farr v.
State, 656 So. 2d 448, 449 (Fla. 1995). At the conclusion of the new penalty
2. The mitigating evidence in the record included presentence investigation
reports and a psychiatric evaluation. Id. at 1369.
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phase, Farr was once again sentenced to death by the trial court. Id. at 449.3
Finding that the trial court did not err in rejecting the case for mitigation, this Court
affirmed Farr’s death sentence on appeal. 4 Id. at 449-50.
In April of 1997, Farr filed an initial motion for postconviction relief with
the trial court. In June of 2005, Farr amended his motion for postconviction relief,
raising the following claims: (1) his plea was invalid due to ineffective assistance
of his trial counsel, William Slaughter; (2) his plea was involuntary because it was
the result of physical and psychological intimidation, abuse, stress, and duress; (3)
Slaughter was ineffective by failing to present a voluntary intoxication defense to
the offenses charged; (4) Slaughter was ineffective by failing to investigate the
facts and circumstances of the collision and failing to present evidence that the
crash was an accident; (5) the State committed a Brady 5 violation; (6) Slaughter
3. Before we rendered the second direct appeal decision, Farr filed a waiver
of his right to seek postconviction relief with the trial court.
4. Appellate counsel also argued that Farr’s resentencing testimony was
self-serving and unreliable, and that our holding in Hamblen v. State, 527 So. 2d
800 (Fla. 1988), had been modified by more recent decisions. As to that argument,
we held that Klokoc v. State, 589 So. 2d 219 (Fla. 1991), where the trial court
appointed special counsel to present mitigation after the defendant forbade his own
attorney to do so—did not modify the core holding in Hamblen that there is no
constitutional requirement that such a procedure be followed. Farr, 656 So. 2d at
450. We also rejected, as procedurally barred, Farr’s assertions that (1) this Court
should recede from Hamblen; and (2) the trial court improperly found aggravating
factors. Id. at 450 n.1.
5. Brady v. Maryland, 373 U.S. 83 (1963).
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was ineffective by failing to investigate and present readily available evidence of
mitigating circumstances; (7) the sentencing order was improperly authored by
Farr’s prosecutor and the trial court failed to independently weigh the aggravating
and mitigating circumstances and provide its reasoning for review on appeal; (8)
Slaughter was ineffective by failing to investigate Farr’s psychiatric history, to
obtain a proper mental health assessment, and to pursue appropriate mental health
defenses; (9) Farr’s constitutional rights were violated by the State’s unlawful
direct contact and communications with Farr; (10) Slaughter was ineffective by
failing to object to, challenge, and confront the State’s Brady violation and the
improprieties regarding the sentencing order and the State’s unlawful contact and
communications with Farr in violation of Farr’s rights under the Fifth, Sixth, Eight
and Fourteenth Amendments to the United States Constitution; and (11) the trial
court erred in denying Farr’s Motion for Judicial Disqualification in violation of
his right to a full and fair postconviction hearing pursuant to the Sixth and
Fourteenth Amendments to the United States Constitution and their Florida
counterparts. After an evidentiary hearing, the trial court denied all claims for
relief. This appeal followed.
Additionally, Farr has filed a petition for writ of habeas corpus, raising four
claims: (1) he was denied an adequate mental health examination; (2) appellate
counsel was ineffective in failing to assert that the trial court erred in proceeding
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with the plea hearing and sentencing without conducting a competency evaluation
hearing; (3) appellate counsel was ineffective in failing to assert that Farr’s waivers
of a penalty phase jury and mitigating evidence were not knowing, intelligent, and
voluntary; and (4) appellate counsel was ineffective in failing to assert that the trial
court’s reliance on Farr’s unreliable self-incriminating statements resulted in the
arbitrary imposition of the death penalty. We address Farr’s claims in turn below.
I. POSTCONVICTION APPEAL
1. Ineffective Assistance of Trial Counsel and Farr’s Plea of Guilty
In order to prevail on his ineffective assistance of counsel claims, Farr must
demonstrate both deficiency and prejudice. See Strickland v. Washington, 466
U.S. 668 (1984). As to deficiency, Farr “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.” Maxwell v. Wainwright,
490 So. 2d 927, 932 (Fla. 1986). As to prejudice, Farr “must demonstrate ‘a
reasonable probability that, but for counsel’s errors, [Farr] would not have pleaded
guilty and would have insisted on going to trial.’ ” Grosvenor v. State, 874 So. 2d
1176, 1179 (Fla. 2004) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).
“Ineffectiveness [of counsel] is a mixed question of law and fact.” Strickland, 466
U.S. at 698. Giving deference to the trial court on questions of fact, we review de
novo the trial court’s legal conclusions. See Sochor v. State, 883 So. 2d 766, 771-
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72 (Fla. 2004). Farr claims that the trial court erred in denying him postconviction
relief because his guilty plea was invalid due to the ineffective assistance of
counsel. Under this claim, Farr raises six different subclaims of ineffective
assistance of counsel which allegedly led to his guilty plea. We consider each of
them in turn.
a. First Ineffective Assistance of Counsel Claim
First, Farr argues that Slaughter was ineffective in failing to maintain an
appropriate relationship with him, which led to Farr’s decision to plead guilty.
Had Slaughter kept an appropriate relationship with him, Farr contends, there was
a reasonable probability that he would not have entered a guilty plea. Specifically,
Farr claims that for the first two months after Slaughter was appointed, Farr wrote
repeatedly to him, and begged for Slaughter to visit him. According to Farr, after
one month in jail, he had still not heard from Slaughter with the exception of a
terse letter stating that he already had everything he needed to know.
The record reflects that Slaughter continuously attempted to persuade Farr
not to plead guilty. Despite Slaughter’s attempts, Farr entered into the plea
agreement on the condition that the State would recommend the death penalty. At
the evidentiary hearing, Slaughter testified that he spoke with Farr for twenty to
twenty-five minutes before he was appointed, met with him on six or seven
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separate occasions, and communicated with him as needed. 6 Moreover, the
content of Slaughter’s letters to Farr indicates that Slaughter had maintained a
reasonable relationship with Farr and kept him aware of the developments in the
case as they occurred. 7 At the plea hearing, Farr stated to the court that he was
satisfied with Slaughter’s efforts on his behalf, and that Slaughter had attempted to
persuade him not to plead guilty. Therefore, based on Slaughter’s testimony at the
evidentiary hearing, Farr’s own statements at the plea hearing, and the content of
Slaughter’s letters to Farr, we conclude that Slaughter’s communications with Farr
were reasonable under the circumstances. Because Slaughter was not deficient in
6. Farr sent various letters to Slaughter before he entered his plea.
Slaughter testified at the evidentiary hearing that he had written at least two letters
to Farr, had at least one telephone conference with him, and one meeting with him
at the courthouse.
7. On January 10, 1991, in a letter to Farr, Slaughter stated that he was
beginning to review Farr’s indictment. Slaughter also stated that the notes from
one of Farr’s interviews and Farr’s letters had given him a fairly clear picture of
Farr’s version of the facts. Finally, Slaughter stated that he would visit Farr within
the next several days. On February 14, 1991, Slaughter wrote Farr another letter,
which stated: (1) he had provided Farr with discovery materials during a recent
meeting at the courthouse; (2) a copy of the order appointing a defense expert had
been mailed to Farr; (3) there was no basis for filing a motion for statement of
particulars, nor was a motion for severance of offenses appropriate at the time, and
that he was confused as to Farr’s request for a motion for continuance as Farr
indicated that he wanted the case to be expedited; (4) a face-to-face conference was
not necessary at the time; and (5) Slaughter would discuss Farr’s case (excluding
confidential matters) with anyone whenever Slaughter believed that it would be
advantageous to Farr.
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this respect, the trial court did not err in denying this ineffective assistance of
counsel claim.
b. Second Ineffective Assistance of Counsel Claim
Farr argues that Slaughter was ineffective in facilitating Farr’s guilty plea in
disregard of Farr’s history of severe depression and suicide attempts. Because the
record indicates that Slaughter did not disregard Farr’s mental health history, this
claim is without merit, and therefore, the trial court did not err in denying it. 8
c. Third Ineffective Assistance of Counsel Claim
Farr claims that Slaughter was ineffective in failing to present a voluntary
intoxication defense, 9 which led to Farr’s decision to plead guilty. 10 To prevail on
this claim, Farr must “overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466
U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). It is well-
8. For example, Slaughter requested a mental health examination of Farr
which was completed by Dr. Mhatre. At the plea hearing, Slaughter disclosed to
the trial court that he had requested the evaluation because Farr was requesting the
death sentence, and Slaughter wanted to make sure that Farr “knew what he was
doing.” Slaughter informed the trial judge that Dr. Mhatre found Farr to be
competent.
9. When the murder was committed—in December of 1990—voluntary
intoxication was recognized as a defense. See § 775.051, Fla. Stat. (2011)
(abolishing voluntary intoxication defense effective October 1, 1999).
10. This subclaim is also repeated as the third claim for postconviction
relief.
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established that “strategic decisions do not constitute ineffective assistance of
counsel if alternative courses have been considered and rejected and counsel’s
decision was reasonable under the norms of professional conduct.” See Occhicone
v. State, 768 So. 2d 1037, 1048 (Fla. 2000). We do not “second-guess counsel’s
strategic decisions about whether to pursue an intoxication defense.” See Jones v.
State, 855 So. 2d 611, 616 (Fla. 2003). Whether or not counsel’s strategy was the
correct one in hindsight is irrelevant to the question of ineffective assistance of
counsel. See Cherry v. State, 659 So. 2d 1069, 1073 (Fla. 1995).
In this case, Slaughter’s undisputed testimony at the evidentiary hearing was
that he had considered the intoxication defense and discussed it with Farr, but
ultimately rejected it for the strategic reasons of preventing Farr’s prior criminal
history from being disclosed, 11 avoiding any impeachment of the voluntary
intoxication defense by Farr’s conflicting statements to the prosecution detailing
the events of the night of the incidents, 12 in addition to the fact that the jury likely
had a negative view of intoxication. We have said that counsel is not deficient for
11. Slaughter’s experience was that in order for an intoxication defense to
be successful, Farr would have had to testify.
12. On February 20, 1991, Farr wrote a letter to the prosecution indicating
that Farr intentionally crashed the vehicle so that he could kill himself and the
victim. Farr also detailed how he twice told the victim to get out of the vehicle, but
she refused, and Farr told her that the night was going “to have a sad end.” In
addition, Farr stated in the letter that he was aiming at Thomas’ heart. These
admissions by Farr to the prosecution would seriously undercut an intoxication
defense.
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rejecting a voluntary intoxication defense where the defendant has “recounted the
incident with ‘great detail and particularity’ ” and confessed to forming the intent
to commit the felony. See Johnson v. State, 593 So. 2d 206, 209 (Fla. 1992). We
find that Slaughter made a reasonable strategic decision to not pursue a voluntary
intoxication defense. Therefore, the trial court did not err in denying this claim.
d. Fourth Ineffective Assistance of Counsel Claim
Farr next argues that Slaughter was ineffective in allowing Farr to plead
guilty without conducting an independent investigation into the facts and
circumstances of the twelve felonies Farr pled guilty to, when such an investigation
would have revealed facts that would have disproved the charges against him. 13 At
the evidentiary hearing, Farr presented expert testimony supporting the theory that
the fatal car crash was an unintended accident. But the fact that the crash might
have been accidental and unintentional is irrelevant to the felony murder charge
because an intent to cause death is not an element of felony murder. See §
782.04(1)(a)2., Fla. Stat. (1990). Consequently, Slaughter “cannot be deemed
deficient for failing to raise a nonmeritorious legal theory.” See Bradley v. State,
33 So. 3d 664, 682 (Fla. 2010) (quoting Thompson v. State, 759 So. 2d 650, 665
(Fla. 2000)). Farr also argues that counsel failed to investigate other facts
underlying the felony murder and the other charges. However, even if we assume
13. This subclaim is also repeated as the fourth claim for postconviction
relief.
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arguendo that Slaughter’s performance was deficient in failing to conduct a
thorough investigation, the prejudice prong has not been met. There has been no
demonstration that, but for Slaughter’s failure to investigate, Farr would not have
pled guilty and would have insisted on going to trial. See Grosvenor, 874 So. 2d at
1179. We have held that in determining whether there is a reasonable probability
that the defendant would have insisted on going to trial:
a court should consider the totality of the circumstances surrounding
the plea, including such factors as whether a particular defense was
likely to succeed at trial, the colloquy between the defendant and the
trial court at the time of the plea, and the difference between the
sentence imposed under the plea and the maximum possible sentence
the defendant faced at a trial.
Id. at 1181-82.
Here, Farr has not set forth the facts which would have likely led to a
successful defense at trial. Instead, Farr points to the fact that the fatal crash may
have been an accident, which, as previously noted, is irrelevant to the felony
murder charge, and that Farr was intoxicated on the night of the crash, which, as
expressed above, Slaughter had considered and rejected for strategic reasons.
Moreover, the record clearly indicates that Farr was fully aware and had an
understanding of the plea process. The trial court questioned Farr thoroughly
before accepting his plea of guilty to ensure that Farr was aware of the
consequences of his plea. Under these circumstances, without demonstrating
particular facts that a further investigation by counsel would have yielded, it cannot
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be said that but for Slaughter’s failure to investigate, he would not have pled guilty
and would have insisted on going to trial. Therefore, the postconviction court did
not err in denying this claim.
e. Fifth Ineffective Assistance of Counsel Claim
Farr argues that Slaughter was ineffective in stipulating to an inaccurate and
false factual basis for Farr’s guilty plea to the charged offenses where counsel had
not investigated the case, thereby facilitating Farr’s guilty plea. As stated by the
Fourth District Court of Appeal:
The inquiry which the court should conduct in order to determine that
there is a factual basis for the plea of guilty need not be a ‘mini-trial’ .
. . . “[T]he court may satisfy itself . . . [by] statements and admissions
made by the defendant, or by his counsel, or by the prosecutor . . . . It
is not a matter of weighing the evidence but only to . . . make certain
that a defendant does not plead guilty to an offense of which he could
not possibly be guilty.
Monroe v. State, 318 So. 2d 571, 573 (Fla. 4th DCA 1975). We find that the
factual basis was sufficient to support the charges against Farr. Moreover, Farr
himself testified under oath at the plea hearing that the factual basis was correct.
Slaughter’s stipulation to the prosecutor’s factual statement was consistent with his
investigation and was not unreasonable under these circumstances. Farr has also
not shown that the factual basis for his plea was inaccurate or false. Accordingly,
the trial court did not err in denying this claim.
f. Sixth Ineffective Assistance of Counsel Claim
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Lastly, Farr argues that Slaughter was ineffective in failing to protect Farr
from physical and psychological abuse which Farr alleged was inflicted by guards
in jail prior to and during the time he agreed to plead guilty. Specifically, in his
letters to Slaughter, Farr said that he was being mistreated and threatened with
beatings by prison guards. On February 28, 1991, Farr was beaten in jail. 14 When
Slaughter learned of this beating, he contacted the chief corrections officer and
discovered that Farr was not beaten by prison guards but by other inmates, and that
the guards were present to pull the inmates off of Farr. Farr was then moved to
another location. After the beating, Farr did not raise further claims of
mistreatment. Thus, counsel did not have further reason to look into the abuse
complaints. Under these circumstances, Farr has not demonstrated what Slaughter
could have done to prevent the abuse. Therefore, Slaughter’s performance was not
deficient, and the trial court did not err in denying this claim.
2. Voluntariness of Farr’s Guilty Plea
Farr’s next claim is that his guilty plea was involuntary because it was the
result of physical and psychological intimidation, abuse, stress, and duress. At the
evidentiary hearing, Farr offered the testimonies of three of his cellmates who
essentially confirmed that Farr was beaten in jail and that there was a change in
14. The plea hearing was held on April 2, 1991.
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Farr’s psyche after the beating. 15 Although the trial court found their testimonies
not credible, it is undisputed that Farr was beaten by fellow inmates on February
28, 1991. We have long held that a guilty plea must be made “without a
semblance of coercion, and without fear or duress of any kind.” Nickels v. State,
99 So. 121, 121 (Fla. 1924). It is of no consequence that the abuse was at the
hands of other inmates because the threat or coercion is not required to originate
from law enforcement or a state actor for the abuse to form the basis of an
involuntary plea claim. See, e.g., Sanders v. State, 662 So. 2d 1372, 1374 (Fla. 1st
DCA 1995). Here, however, Farr had requested the death penalty before he was
beaten. In his December 21, 1990, letter to Slaughter, Farr initially indicated that
he wanted the death penalty and periodically requested the death penalty thereafter.
Even after the beating, Farr was still unsure as to how he wanted to proceed in the
15. Former cellmate Kenneth Texton testified that after the beating, Farr
stated he was worried about what would happen in prison, and that if he was going
to fear for his life every day while in prison, it was better for him to receive the
death penalty. Texton also testified that Farr was fearful that the victim had
several family members associated with the Department of Corrections. Former
cellmate Leon Douglas testified that after the beating, Farr became extremely
depressed and hopeless that Farr asked if he was going to be subject to abuse for
twenty-five years, and stated he could not do it and felt the guards or the Columbia
County Sheriff’s Office were trying to persuade him through physical force to give
up his constitutional rights. Douglas also testified that after the beating, Farr
discussed with Douglas how he could obtain a death sentence and make the crime
appear more brutal in letters to the victim’s family, the state attorney’s office, and
the judge. Former cellmate Joel Heath testified that after the beating, Farr became
paranoid, even more depressed, and decided that he deserved the death penalty.
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case.16 We therefore conclude that Farr’s plea was not induced by the beating he
endured while he was incarcerated, and Slaughter was not ineffective in this
regard. Consequently, the postconviction court did not err in denying this claim.
3. Voluntary Intoxication Defense
Farr claims that Slaughter was ineffective in failing to present a voluntary
intoxication defense. Farr raised this same issue in his first claim that such alleged
ineffectiveness led to Farr’s decision to plead guilty. As we noted above,
Slaughter discussed the availability of a voluntary intoxication defense with Farr,
and after considering the defense, Slaughter rejected it for strategic reasons.
Therefore, this claim is without merit and the trial court did not err in denying it.
4. Failure to Investigate
Farr also claims that Slaughter was ineffective in failing to investigate the
facts and circumstances of the fatal crash and to present evidence that the crash
was an accident. Farr raised this same issue in his first claim that, but for
Slaughter’s failure to investigate, Farr would not have pled guilty and would have
insisted on going to trial. As we concluded above, this claim is without merit
16. Farr stated in pertinent part in his March 14, 1991, letter to Slaughter:
[I]s there something you had planned I know nothing of? I truly don’t
see any way out. True, I did not mean any of that night to take place
nor can I understand why it did, but it did, now here I sit, my life over.
Sir, I have asked you before, don’t let me sit down there a large
number of years. If you see you can’t have me out in 10 to 15 years,
no more, just let the ball roll.
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because even if Slaughter’s performance was deficient, Farr fails to meet the
prejudice prong.
5. Brady Claim
In this next claim, Farr asserts that the State violated Brady by withholding
exculpatory evidence and information from Farr and Slaughter. 17 Pursuant to
Brady, the State must disclose material information within its possession or control
that is favorable to the defense. 373 U.S. at 87; see also Mordenti v. State, 894 So.
2d 161, 168 (Fla. 2004). To succeed on a Brady claim, Farr must prove that (1)
favorable evidence—either exculpatory or impeaching, (2) was willfully or
inadvertently suppressed by the State, and (3) because such evidence was material
Farr was prejudiced. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see
also Way v. State, 760 So. 2d 903, 910 (Fla. 2000).
Farr alleges that the State withheld evidence of a polygraph report made in
connection with different offenses in Texas that revealed that Farr was not truthful.
Because this evidence concerned Farr’s own statements, it was known to Farr, and
17. In United States v. Ruiz, 536 U.S. 622 (2002), the United States
Supreme Court held that “the Constitution does not require the Government to
disclose material impeachment evidence prior to entering a plea agreement with a
criminal defendant.” Id. at 633 (emphasis added); see also United States v.
Moussaoui, 591 F.3d 263, 281 n.14 (4th Cir. 2010) (“Moussaoui’s constitutional
claims under Brady . . . are barred by his guilty plea.”); United States v. Conroy,
567 F.3d 174, 179 (5th Cir. 2009) (“Conroy’s guilty plea precludes her from
claiming that the government’s failure to disclose the FBI report was a Brady
violation.”). We assume arguendo that Farr is not precluded from raising his
Brady claim because he pled guilty.
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therefore, Farr cannot show that had the polygraph report been disclosed, Farr
would not have pled guilty to the charges against him. Farr also claims that the
State withheld evidence of the prosecutor’s notes on the case: “Tell Jerry About
Grand Juror Residence Problem” and “problem of victim’s Identifying the
Defendant.” Farr has failed to show that these “problems” were favorable and
material evidence suppressed by the State.
Farr also claims that the State withheld evidence that statements made to the
police concerning Farr’s alcohol consumption and level of intoxication were
intentionally skewed to make Farr appear “less drunk” at the time of commission
of the crimes because the prosecutor believed that Farr would use the voluntary
intoxication defense. However, Farr did not present any evidence at the
evidentiary hearing to support his assertion that witness statements concerning his
level of intoxication were falsified under the State’s direction. Farr’s claim is
based on speculation, and accordingly, is denied. Because Farr has not met his
burden under Brady, the postconviction court did not err in finding that the State
did not commit any Brady violations.
6. Failure to Investigate and Present Available Mitigating Evidence
Farr asserts that Slaughter was ineffective for failing to investigate and
present available mitigating evidence at the new penalty phase hearing, including
evidence of Farr’s psychiatric history. In order to succeed in this ineffective
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assistance of counsel claim, Farr must establish that Slaughter’s ineffectiveness
“deprived [him] of a reliable penalty phase proceeding.” Henry v. State, 937 So.
2d 563, 569 (Fla. 2006) (quoting Asay v. State, 769 So. 2d 974, 985 (Fla. 2000)).
On review, we must determine whether the “investigation supporting counsel’s
decision not to introduce mitigating evidence . . . . was itself reasonable.” Wiggins
v. Smith, 539 U.S. 510, 523 (2003) (emphasis in original). Therefore, we must
examine counsel’s reasons for not investigating and presenting mitigation. Sliney
v. State, 944 So. 2d 270, 281-82 (Fla. 2006). Here, the reason that counsel did not
introduce mitigating evidence is clear: Farr instructed him not to do so as
demonstrated in a December 7, 1993, letter. Farr also stated in the letter that he did
not wish Dr. Mhatre to testify about any mitigating evidence, and Farr himself took
the stand and belied, discredited, and refuted virtually the entire mitigation case.
Slaughter had discussed with Farr several mitigating factors which Slaughter had
derived from reviewing the entire record on appeal, the court files, and his office
files.
Although Farr has the right to waive a penalty phase mitigation presentation,
see Ocha v. State, 826 So. 2d 956, 961 (Fla. 2002), “counsel must first investigate
all avenues and advise the defendant so that the defendant reasonably understands
what is being waived and its ramifications and hence is able to make an informed,
intelligent decision.” State v. Lewis, 838 So. 2d 1102, 1113 (Fla. 2002) (footnote
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omitted); see also Koon v. Dugger, 619 So. 2d 246, 249 (Fla. 1993). Moreover, to
effectuate this waiver,
counsel must inform the court on the record of the defendant’s
decision. Counsel must indicate whether, based on his investigation,
he reasonably believes there to be mitigating evidence that could be
presented and what that evidence would be. The court should then
require the defendant to confirm on the record that his counsel has
discussed these matters with him, and despite counsel’s
recommendation, he wishes to waive presentation of penalty phase
evidence.
Koon, 619 So. 2d at 250.
It is clear that in this case the Koon requirements were met. Slaughter
informed the court on the record of Farr’s decision, indicated that after reviewing
the entire appellate record, court file, and his office file, he was unable to find any
other mitigating circumstances, and Farr himself confirmed that he wanted
Slaughter to carry out Farr’s instructions, set forth in the December 7, 1993, letter,
despite the fact that Slaughter had discussed with him possible mitigation
circumstances. Moreover, the record shows that the mitigation evidence presented
at the evidentiary hearing was the same mitigation, albeit in greater detail, that
existed in the record at the time of Farr’s new penalty phase proceeding. 18 More
importantly, even if Slaughter’s performance was deficient here, Farr has not
satisfied the prejudice prong. Slaughter was aware of the mitigation that was
18. Farr presented fifteen mitigation witnesses at the evidentiary hearing
who testified about Farr’s psychiatric problems, childhood abuse, and substance
abuse issues.
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presented at the evidentiary hearing and any additional mitigating evidence may
have been futile as Farr expressly disavowed available mitigation at the new
penalty phase proceeding. Consequently, the trial court did not err in denying this
claim.
7. Sentencing Order
Farr claims that his sentencing order was impermissibly authored by the
prosecutor, and that the trial court did not independently weigh the aggravators and
mitigators in his case. A trial court is prohibited from directing the State to prepare
the sentencing order where the court has not independently determined the specific
aggravating and mitigating circumstances in a case. Patterson v. State, 513 So. 2d
1257, 1261-63 (Fla. 1987). This claim, however, is procedurally barred because it
was not raised on direct appeal. See Blackwelder v. State, 851 So. 2d 650, 652
(Fla. 2003).
Farr further argues that Slaughter was ineffective at trial in not objecting to
the sentencing order. The trial court did not simply copy the State’s sentencing
memorandum verbatim. The record indicates that after the conclusion of the
presentation by the defense and the State, the trial judge retired to his chambers.
When the judge emerged, he showed both defense counsel and the State changes
he had made to the State’s sentencing memorandum. Specifically, the trial judge
had incorporated Farr’s resentencing testimony into the State’s memorandum. The
- 21 -
trial court also included a statement that it had searched the entire record and had
not found other circumstances that would mitigate Farr’s conduct on the night of
the murder. Therefore, because the trial court did conduct an independent
determination of aggravators and mitigators in Farr’s case, Slaughter had no basis
to object to the procedure employed by the court. Accordingly, this claim was
properly denied by the postconviction court.
8. Failure to Investigate Farr’s Psychiatric History at Both the
Guilt Phase and Penalty Phase
Farr claims that Slaughter was ineffective in failing to pursue mental health
defenses. As to the guilt phase, Farr does not specifically address what mental
health defenses counsel failed to pursue, and how they would have prevented him
from pleading guilty and instead insist on going to trial. As to the penalty phase,
this claim was raised in Farr’s ineffective assistance of counsel claim for failure to
present available mitigation. As we stated above, Slaughter was aware of Farr’s
psychiatric history, and discussed mental mitigation factors with Farr, but Farr
chose not to present a mitigation case. Therefore, the trial court properly denied
this claim.
9. The State’s Communications with Farr
Farr argues that the State improperly communicated with him while he was
represented by Slaughter. Farr argues that the State’s communications with him
were improper and manipulated him into pleading guilty. Farr points to three
- 22 -
encounters between himself and Frank Owens, the Lake City Chief of Police, as
well as to several letters he wrote to the prosecution. However, the record
indicates that each encounter Farr had with law enforcement while represented by
Slaughter, as well as Farr’s correspondence with the prosecutor, were on his own
initiative. 19 Farr was “free to volunteer a statement to police on his . . . own
initiative at any time on any subject in the absence of counsel,” see Traylor v.
State, 596 So. 2d 957, 966 (Fla. 1992), and cannot now complain of this contact
with police or the prosecutor. Moreover, the claim concerning the presentencing
communication with Farr is procedurally barred because it could have been raised
on direct appeal. See Schoenwetter v. State, 46 So. 3d 535, 561 (Fla. 2010).
Therefore, the trial court did not err in denying this claim.
10. Failure to Challenge Prosecutorial Misconduct
Farr also claims that Slaughter was ineffective in failing to object to,
challenge, and confront the State’s Brady violation, the improprieties regarding the
sentencing order, and the State’s unlawful contact and communications with Farr
19. The first encounter occurred on December 12, 1990, one day before
Slaughter’s appointment. The interview transcript of that encounter indicates that
the police requested, and Farr agreed, that they be allowed to question him. During
the interview, Farr was read his Miranda warnings, which he waived. The second
encounter on January 17, 1991, occurred at the request of Farr. Chief Owens again
Mirandized Farr, and Farr gave a recorded statement wherein he said that he could
not remember parts of the night of the crash, but that he accepted blame for the
victim’s death. The third encounter on February 20, 1991, also occurred at the
request of Farr.
- 23 -
in violation of Farr’s rights under the Fifth, Sixth, Eight, and Fourteenth
Amendments to the United States Constitution. However, because Farr has failed
to demonstrate any misconduct on behalf of the State in this case, any objection by
Slaughter would have been without merit. Slaughter “cannot be deemed
ineffective for failing to make a meritless objection.” See Hitchcock v. State, 991
So. 2d 337, 361 (Fla. 2008). Therefore, the trial court did not err in denying this
claim.
11. “Motion to Disqualify” Claim
Farr claims that the postconviction court manifested bias against him and in
favor of the State during the evidentiary hearing below. According to Farr, this
bias is demonstrated by the postconviction court’s refusal to allow Farr’s
postconviction counsel to make arguments, introduce certain evidence, and proffer
certain testimony that the postconviction court ruled inadmissible, as well as by the
postconviction court’s instruction to the State to object to certain evidence, its
unprofessional behavior toward certain defense witnesses and Farr’s counsel, 20 and
its ruling to allow the State to cross-examine an expert witness using a document
from its own files and then refusing to allow the defense to introduce the same
document for lack of authentication.
20. Farr claims that the trial judge admonished and stifled defense witnesses
and was discourteous to them and to counsel, made abusive and derisive comments
to Farr’s postconviction counsel, and disparaged and reprimanded Farr’s
postconviction counsel for being “shrill” and “hysterical.”
- 24 -
The postconviction court did not abuse its discretion in denying Farr’s
motion to disqualify because Farr largely appears to have exhibited disagreement
with its rulings. Such disagreement is insufficient to establish that a recusal
motion was improperly denied. See Jackson v. State, 599 So. 2d 103, 107 (Fla.
1992) (“The fact that a judge has previously made adverse rulings is not an
adequate ground for recusal.”). Moreover, as the State notes, the postconviction
court also overruled several of the State’s objections, and the State was not
immune from the judge’s admonishments. Although some of the judge’s
comments to Farr’s postconviction counsel and the defense witnesses may have
been improper, rude, or gratuitous, that alone does not support a conclusion that
the judge was unfair and not impartial.
II. Habeas Corpus Petition
Farr has also raised several claims of ineffective assistance of appellate
counsel through a petition for writ of habeas corpus. Consistent with the
Strickland standard, to grant habeas relief based on ineffectiveness of appellate
counsel, we must determine:
first, whether the alleged omissions are of such 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.
- 25 -
Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986); see also Freeman v. State,
761 So. 2d 1055, 1069 (Fla. 2000); Thompson v. State, 759 So. 2d 650, 660 (Fla.
2000). In raising such a claim, “[t]he defendant has the burden of alleging a
specific, serious omission or overt act upon which the claim of ineffective
assistance of counsel can be based.” Freeman, 761 So. 2d at 1069; see also Knight
v. State, 394 So. 2d 997, 1001 (Fla. 1981). Claims of ineffective assistance of
appellate counsel may not be used to camouflage issues that should have been
presented on direct appeal or in a postconviction motion. See Rutherford v.
Moore, 774 So. 2d 637, 643 (Fla. 2000).
1. Ake Claim
In his first habeas claim, Farr asserts that Dr. Mhatre never evaluated Farr
for mitigation, and appellate counsel was ineffective in failing to raise this claim
on appeal. In Ake v. Oklahoma, 470 U.S. 68 (1985), the United States Supreme
Court said that “when a defendant demonstrates to the trial judge that his sanity at
the time of the offense is to be a significant factor at trial, the State must, at a
minimum, assure the defendant access to a competent psychiatrist who will
conduct an appropriate examination and assist in evaluation, preparation, and
presentation of the defense.” Id. at 83. In Farr’s case, the record reveals that
Slaughter requested a mental health evaluation, and one was ordered and
completed by Dr. Mhatre. The evaluation was not intended for mitigation
- 26 -
purposes. 21 To the extent Farr is criticizing the quality of the evaluation rendered
by Dr. Mhatre, this claim is without merit. First, it is unlikely that Farr would have
permitted an evaluation at the time of the sentencing strictly for mitigation
purposes, as Farr insisted on waiving his mitigation presentation. In addition, Dr.
Mhatre’s report did indicate several areas of mitigation which were available to be
presented if Farr wished to do so. Therefore, Farr has failed to demonstrate that he
had a meritorious Ake claim, and as such, appellate counsel was not ineffective in
failing to raise this claim on direct appeal. Thompson, 759 So. 2d at 663
(“[A]ppellate counsel cannot be deemed ineffective for failing to raise a meritless
issue.”).
2. Incompetency Claim
In his second habeas claim, Farr argues that appellate counsel was
ineffective in failing to assert on appeal that the trial court erred in proceeding with
the plea hearing without conducting a competency evaluation and hearing.
Pursuant to Florida Rule of Criminal Procedure 3.210(b), a trial court must hold a
hearing to determine a defendant’s mental condition when it has reasonable ground
21. At the plea hearing, Slaughter stated to the trial court that he requested
the evaluation because Farr was requesting that he be sentenced to death, and
Slaughter wanted to ensure that Farr “knew what he was doing.” In his report, Dr.
Mhatre concluded that Farr was competent at both the time of the offense and at
the time of the evaluation.
- 27 -
to believe that a defendant is not mentally competent to proceed. 22 Farr argues that
his suggestion to the State for him to be charged with premeditated murder, his
request for the death penalty, his waiver of a penalty phase jury and a mitigation
presentation, and his characterization of the prosecutor and chief of police as his
“friends,” constituted reasonable grounds for the trial court to order a competency
hearing. However, Dr. Mhatre’s report concluded that Farr was competent, and,
both at the plea hearing and the sentencing hearing, Slaughter informed the trial
court that Farr had been found to be competent. Under these circumstances, the
trial court did not have reasonable grounds to believe that Farr was incompetent to
proceed. Thus, appellate counsel was not ineffective for failing to raise this
competency issue on direct appeal.
3. The Claim of Invalidity of Farr’s Waivers of a Penalty Phase Jury
and Mitigating Evidence
In his third habeas claim, Farr argues that appellate counsel was ineffective
for failing to assert on direct appeal that Farr’s waiver of a penalty phase jury and
mitigation was not knowing, intelligent and voluntary. As the basis for his claim
that his waiver was not voluntary, Farr asserts that Slaughter failed to adequately
22. Rule 3.210(b) existed at the time of Farr’s plea hearing, sentencing, and
resentencing in 1991 and 1993.
- 28 -
investigate mitigating circumstances. 23 However, Slaughter made Farr aware of
the potential mitigation, yet Farr knowingly chose not to present mitigation.
Because Farr’s waiver of mitigation and a penalty phase jury was voluntary,
appellate counsel was not ineffective for failing to raise a meritless issue.
Thompson, 759 So. 2d at 663. Therefore, Farr’s claim is without merit.
4. Aggravating Factors, Corpus Delicti, and the Evidence at
Sentencing
In his final habeas claim, Farr raises three subclaims. First, Farr claims that
appellate counsel was ineffective in failing to raise the issue that the aggravating
factors found by the trial court were not supported by competent, substantial
evidence. In the first direct appeal, we agreed with the trial court that the four
aggravating factors found by the trial court “clearly were established beyond a
reasonable doubt.” Farr, 621 So. 2d at 1370. 24 Thus, it is clear that this Court
23. Farr maintains that Slaughter’s ineffectiveness was apparent on the face
of the record. “An ineffective assistance of counsel claim may be brought on
direct appeal only in the ‘rare’ instance where (1) the ineffectiveness is apparent on
the face of the record, and (2) it would be ‘a waste of judicial resources to require
the trial court to address the issue.’ ” Ellerbee v. State, 87 So. 3d 730, 739 (Fla.
2012) (quoting Blanco v. Wainwright, 507 So. 2d 1377, 1384 (Fla. 1987)).
24. The aggravating factors were: (1) Farr had previously been convicted of
another capital felony or of a felony involving the threat of violence to the person;
(2) the homicide was committed while Farr was fleeing from the commission of a
kidnapping, a robbery, two attempted kidnappings, and an attempted robbery; (3)
the homicide was committed to disrupt or hinder the lawful exercise of a
governmental function or the enforcement of laws; and (4) the homicide was
especially heinous, atrocious, or cruel. Id.
- 29 -
found that the aggravators were established even if the issue was not raised by
appellate counsel. Farr has failed to establish ineffective assistance of appellate
counsel because no prejudice has been demonstrated. Second, Farr claims that the
trial court’s reliance on his confession in finding Farr guilty violated the corpus
delicti. This subclaim is also without merit. Pursuant to the principle of corpus
delicti, “[b]efore a confession or statement may be admitted, there must be prima
facie proof tending to show the crime was committed.” Tanzi v. State, 964 So. 2d
106, 116 (Fla. 2007) (quoting Schwab v. State, 636 So. 2d 3, 6 (Fla. 1994)). A
prima facie case of felony murder does not require proof of intent to kill. Thus,
contrary to Farr’s argument, the confession of intent could not have been the basis
for the trial court’s finding of guilt as to the felony murder charge. Finally, Farr
claims that the trial court’s reliance on unreliable evidence at sentencing violated
Farr’s rights to an individualized sentencing. This claim also fails because it is
procedurally barred as it was raised on direct appeal. See Breedlove v. Singletary,
595 So. 2d 8, 10 (Fla. 1992).
CONCLUSION
For the reasons expressed above, we affirm the trial court’s denial of
postconviction relief and we deny Farr’s petition for habeas corpus relief.
It is so ordered.
- 30 -
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY,
JJ., concur.
CANADY, J., concurs in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Two Cases:
An Appeal from the Circuit Court in and for Columbia County,
James C. Hankinson, Judge - Case No. 91-002-CF
And an Original Proceeding – Habeas Corpus
James Charles Lohman, Austin, Texas and Linda McDermott of McClain &
McDermott, P.A., Wilton Manors, Florida,
for Appellant/Petitioner
Pamela Jo Bondi, Attorney General and Thomas David Winokur, Assistant
Attorney General, Tallahassee, Florida,
for Appellee/Respondent
- 31 -
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