Criminal Law Alert

Appointment of special counsel to assist the court in providing possible mitigation when defendant declines to present mitigation, cannot be challenged as ineffective assistance of counsel; no attorney-client relationship exists.

Grim v. State, SC06-122 and SC06-1575, Opinion filed October 4, 2007.

Following Grim’s conviction for the first degree murder of Cynthia Campbell, he maintained that he did not want to present mitigation regarding the appropriateness of the death penalty and objected to the trial court’s appointment of special counsel to assist the court in securing possible mitigation. Mitigation was presented before the trial court.

In postconviction, Grim clarified his complaint as to the use by the court of special court counsel, arguing that special counsel had a conflict which rendered counsel ineffective. The Court found the claim meritless, holding that when a defendant waives the presentation of mitigation, under Muhammad v. State, 782 So. 2d 343 (Fla. 2001), the trial court may appoint special counsel to present mitigation to represent the public interest, not the defendant. As a result, “ . . . because special counsel solely represents the public interest, no attorney-client relationship is established between special counsel and the defendant,” therefore there was no basis for Grim to assert ineffective assistance in the presentation of mitigation.

Grim also contended that the State Attorney’s failure to disclose evidence regarding the medical examiner’s revocation of his license in Missouri, constituted a Brady violation. The Court found that the first prong of Brady was satisfied, because the documents about the medical examiner “ . . . undoubtedly represent favorable impeachment evidence that could have been utilized by the defense,” however, Grim “failed to present any evidence challenging the validity of Berkland’s autopsy in this case.” Essentially, Grim failed to establish prejudice. As to the failure of defense counsel to impeach Dr. Berkland, the Court found deficient performance in not doing so, but no evidence of prejudice since there was no evidence of any problem with the autopsy in this case.

Albeit Grim elected to not put on mitigation at trial, in postconviction he challenged counsel’s effectiveness regarding investigation of mitigation. The Court noted Grim’s lack of cooperation and further opined that defense counsels’ conducted sufficient investigation and “made a reasonable professional decision not to secure the services of a neuropharmalogical expert based on the facts of the case.”

Assistant Attorney General Ronald Lathan, Jr., represented the state.

Opinion


Defendant was competent at the time he entered his guilty plea.

Barnhill v. State, SC06-275, SC06-1803, Opinion filed October 25, 2007.

Barnhill, convicted and sentenced to death for first-degree murder, appealed the circuit court’s order denying his motion to vacate his judgments of convictions and sentences, raising several ineffective assistance of counsel claims and also filing a petition for a Writ of Habeas Corpus.

The trial court conducted a plea colloquy to address the voluntariness of the Barnhill’s guilty plea during the guilt phase. The next day trial counsel, Arthur Haft, informed the court of a change in Barnhill’s behavior “before the plea was entered which may have resulted in the plea being an emotional decision.” The trial court ordered two experts to examine Barnhill, Dr. Fisher and Dr. Danziger. Barnhill alleged his trial counsel was ineffective because he failed to file a motion to withdraw his guilty plea; that trial counsel’s questioning of his competency to proceed after he entered his guilty plea, along with the court-ordered competency evaluations “should have led to a formal motion to withdraw the plea.” At the evidentiary hearing both trial attorneys testified that after consulting with Barnhill, “a strategic decision was made not to withdraw the plea,” and that it would later be used as a mitigating factor. Both court appointed experts testified that Barnhill was competent at the time of the plea. Danziger saw Barnhill three days after he entered the plea and testified that when Barnhill entered his plea he was “not suffering from a psychotic disorder but the psychotic disorder developed after the plea.” The trial court found that based on the experts’ testimony and that of counsel, Barnhill was competent at the time he entered his plea. The record reflected that Barnhill discussed this issue with his counsel and they made a “strategic decision” to not withdraw the plea. The Court held that there was “competent, substantial evidence supporting the trial court’s finding that counsel was not deficient.”

The Court also held that the Barnhill’s alleged repeated instances of ineffective assistance of counsel, flawed jury instruction and unconstitutional process claims are without merit, therefore, “a cumulative error argument based upon these errors must also fail.”

Barnhill conceded that his incompetency-at-time-of-execution claim was not ripe for review and was raised only for preservation purposes. Because the Court has “repeatedly found that no relief is warranted on similar claims,” the petition was denied.

Assistant Attorney General Barbara Davis represented the state.

Opinion


Sentencing Guidelines; Proper test for postconviction motions filed under rule 3.800(a) is whether the same sentence could-have-been imposed on the basis of a corrected scoresheet.

Brooks v. State, SC06-1266, Opinion filed October 25, 2007.

Brooks, who pled no contest to carjacking without a firearm, violated his probation by attempting a robbery and the trial court revoked his probation and sentenced Brooks to tens years in prison. Four years later, Brooks filed a motion under rule 3.800(a), alleging scoresheet error claiming his felony conviction was a level seven offense and was incorrectly scored as a level nine offense. On review, the 4th DCA, applied the “stricter ‘could-have-been-imposed’ standard” reasoning that despite a clear scoresheet error, “Brooks was not entitled to resentencing” because the trial court only sentenced him to ten years when it could have imposed a thirty-year sentence and certified conflict with Wilson v. State, 913 So. 2d 1277 (Fla. 2d DCA 2005), “which applied the ‘would-have-been-imposed’ standard.”

In its lengthy analysis, the Court opined that the timing of the postconviction motion is “relevant to determining which harmless error standard applies.” The requirements and established deadlines for sentencing errors raised in direct appeals and in motions filed under rules 3.800(b) and 3.850 “contrast sharply with the never-too-late provision of rule 3.800(a).” The Court concluded that “applying the would-have-been-imposed standard to sentencing issues raised under rule 3.800(a) would defeat the purposes of preserving issues for review and would circumvent the appellate process.” Under the would-have-been-imposed standard, defendants can raise sentencing error claims by one of three procedures: by raising the issue on direct appeal if the error was preserved at sentencing; if the error was not preserved at sentencing, “they may raise it by motion under rule 3.800(b) and then raise it on appeal”; and they may raise the issue within two years after the sentence becomes final under rule 3.850.

For a defendant to be entitled to resentencing under rule 3.800(a), the Court held that “ the scoresheet error must be of greater magnitude than one raised by the first three procedures described” and that for motions filed under rule 3.800(a), that “if the trial court could have imposed the same sentence using a correct scoresheet, any error was harmless.” The Court affirmed the 4th DCA’s decision and disapproved the decision in Wilson “to the extent it is inconsistent with this opinion.”

Bureau Chief Celia Terenzio and Assistant Attorney General Laura Fisher Zibura represented the state.

Opinion


Prehearing discovery motion nothing more than a “fishing expedition,” DNA unavailable from 1966 murder case.

Kelley v. State, SC06-1574, Opinion filed October 25, 2007.

Kelley, convicted and sentenced to death for first-degree murder, appealed the circuit court’s denial of his motion for postconviction DNA testing claiming that the trial court erred in denying his prehearing discovery request; that he was denied due process due to an inadequate notice of the evidentiary hearing; and that the trial court erred in finding that the DNA evidence no longer exists.

Kelley was indicted in 1981 for the contract murder of Charles Von Maxcy in October 1966. However, only John Sweet, who commissioned Kelley for the contract murder, was originally tried for the murder. Sweets’ first trial ended in a mistrial and his second trial resulted with a conviction that was reversed on appeal. The case file and the evidence remained with the clerk of court until April 1976, where the State, at the clerks request, “moved for an order requesting the court’s permission to dispose of the evidence.” The motion was granted and the evidence was destroyed. In 1981 Sweet approached law enforcement officers seeking immunity for another matter in return for his testimony regarding other crimes, including the Von Maxcy murder case and it was his testimony that led to the prosecution of Kelley.

After Kelley’s first trial in 1981 ended in a mistrial, he was found guilty of first-degree murder and sentenced to death at retrial. His sentence and conviction were affirmed upon direct appeal; denial of his postconviction motion was affirmed on appeal and his petition for writ of habeas corpus was denied. Kelley filed a motion for postconviction DNA testing, listing twenty-nine items for DNA testing, and moved for a preliminary hearing and in April 2006, the trial court set the preliminary hearing for June 6, 2006. During a telephonic hearing in May 2006, the court informed everyone that the June 6th hearing “would be a two-day final hearing, including the presentation of witnesses and evidence on the merits of Kelley’s motion for postconviction DNA testing, specifically whether the DNA evidence still existed.” On June 29, 2006, the trial court denied Kelley’s motion for DNA testing concluding that “the evidence relating to Kelley’s case no longer exists.” Kelley appealed.

The record reflected that while Kelley met his burden of identifying the evidence he wanted tested, the trial court found that the State met its burden by “presenting witnesses from all possible locations where the evidence might be stored.” The Court concluded that Kelley’s motion was a “fishing expedition, which is impermissible under rule 3.853,” that the evidence collected from the Sweet trials was destroyed by court order in 1976, and that despite diligent searches from all the witnesses, the items requested could not be located. The Court held that the trial court “did not abuse its discretion in denying Kelley further prehearing discovery.”

Because Kelley did not raise a due process objection, the Court held his claim was procedurally barred and without merit. Kelley had six months to conduct prehearing discovery and he failed to “demonstrate that further discovery would have been fruitful.” Further, the Court held that the trial court’s finding that no other evidence existed was supported by competent, substantial evidence and affirmed the order summarily denying Kelley’s motion for postconviction DNA testing.

Assistant Attorney General Carol M. Dittmar represented the state.

Opinion


IN RE; AMENDMENTS TO FLORIDA RULE OF APPELLATE PROCEDURE 9.300.

SC07-1255, Filed October 18, 2007.

Amendments: