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Florida Supreme Court – Criminal Headnotes – June 15, 2017

THOMAS BEVEL V. STATE OF FLORIDA – FAILURE OF PENALTY PHASE COUNSEL TO INVESTIGATE MITIGATING EVIDENCE – CLAIMED FAILURE OF APPELLATE COUNSEL TO ARGUE IMPROPRIETIES IN PROSECUTOR’S CLOSING ARGUMENT – REMAND FOR PENALTY PHASE POST-HURST WHERE JURY RECOMMENDATION NOT UNANIMOUS

Appeal from the denial of a motion for post-conviction relief alleging ineffective assistance of penalty phase counsel, and petition for habeas corpus alleging ineffective assistance of counsel on direct appeal.

Testimony at the hearing on the post-conviction motion showed that penalty phase counsel had failed to investigate mitigation evidence. Per Strickland v. Washington, 466 U.S. 668 (1984), this failure undermined the court’s confidence in the jury’s unanimous recommendation of the death penalty on conviction of one count of first degree murder. Because the recommendation on the second count was not unanimous, the death sentence on that count is vacated post-Hurst.

Having previously found on direct appeal no fundamental error in the prosecutor’s remarks in closing argument, the court rejects the claim of ineffective assistance for failing to raise a “meritless issue” on direct appeal.

DONTE JERMAINE HALL V. STATE OF FLORIDA – CLAIMED FAILURE OF TRIAL COUNSEL TO OBJECT TO EVIDENCE OF UNCHARGED OFFENSES AND OF APPELLATE COUNSEL TO PRESERVE ISSUE – REMAND FOR PENALTY PHASE POST-HURST WHERE JURY RECOMMENDATION NOT UNANIMOUS

Appeal from the denial of a motion for post-conviction relief alleging ineffective assistance of counsel in failing to object to the admission of evidence of uncharged prior offenses, and petition for habeas corpus alleging ineffective assistance of counsel on direct appeal in failing to preserve that issue.

The record establishes neither prong of Strickland v. Washington, 466 U.S. 668 (1984): (a) trial counsel made a reasonable strategic decision not to object to vague testimony that the defendant routinely engaged in “this kind of stuff,” or to the prosecutor’s closing argument referring to that testimony; and (b) the court’s confidence in the outcome is not undermined. Appellate counsel was not ineffective in failing to raise this “non-meritorious claim” on direct appeal.

Because the recommendation of the penalty phase jury was not unanimous, the death sentence is vacated post-Hurst.

HARRELL FRANKLIN BRADDY V. JULIE L. JONES – PURPORTED CONFLICT WITH CCRC – CLAIMED INEFFECTIVE ASSISTANCE IN FAILURE TO PRESERVE ALLEGED IMPROPRIETIES IN PROSECUTOR’S CLOSING ARGUMENT FOR APPEAL – JUROR NONDISCLOSURE – REMAND FOR PENALTY PHASE POST-HURST WHERE JURY RECOMMENDATION NOT UNANIMOUS

Appeal from denial of motion for post-conviction relief and petition for habeas corpus. The trial court did not err in denying the motion of Capital Collateral Regional Counsel (CCRC) to withdraw on the ground of conflict, where counsel had years previously, in his capacity as state attorney, approved the plea agreement on violent felonies cited as aggravating factors in the present case. There was no showing the purported conflict adversely affected the representation, as required by Cuyler v. Sullivan, 446 U.S. 335 (1980).

The trial court did not err in denying the defendant’s pro se motion to discharge CCRC without a hearing per Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973), absent allegations of incompetence. Also no error in denying public records requests, where the documents in question would not have been exculpatory, nor admissible as impeachment.

Having previously found on direct appeal no fundamental error in the prosecutor’s remarks in closing argument, the court rejects the claim of ineffective assistance for failing to preserve the issue. Similarly, the court rejects the claim of ineffective assistance in failing to prepare “reliable adversarial testing” of forensic evidence, where there was ample other testimony to support a finding of guilt.

The court rejects a claim of misconduct by a juror who allegedly failed to disclose he was the subject of a criminal investigation. The juror in question was arrested after the conclusion of the guilt phase of the trial, and was discharged prior to the penalty phase. There was no evidence the juror was the subject of criminal investigation at the time of voir dire or prior to the conclusion of the guilt phase.

Because the recommendation of the penalty phase jury was not unanimous, the death sentence is vacated post-Hurst.

MICHAEL DUANE ZACK, III V. STATE OF FLORIDA – NO ERROR IN DENYING POST-CONVICTION HEARING ON INTELLECTUAL DISABILITY WHERE IQ SCORES OUTSIDE MARGIN OF ERROR – NO REMAND FOR PENALTY PHASE POST-HURST WHERE CONVICTION AND SENTENCE WERE FINAL PRIOR TO RING.

Appeal from denial of motion to vacate conviction for first-degree murder and imposition of death sentence, and petition for habeas corpus.

The trial court did not err in denying without a hearing the defendant’s motion for post-conviction relief based on intellectual disability, per Atkins v. Virginia, 536 U.S. 304 (2002). All of his IQ scores were outside the margin of error for the “significantly subaverage intellectual functioning” prong of Hall v. Florida, 134 S. Ct. 1986 (2014), so that it was unnecessary for the trial court to consider other evidence.

Although the penalty phase jury recommendation was not unanimous, the defendant is not entitled to Hurst relief, as the conviction and sentence were imposed prior to the decision in Ring v. Arizona, 536 U.S. 584 (2002).