& SC13-1787 Steven Douglas Hayward v. State of Florida and Steven Douglas Hayward v. Julie L. Jones, etc. , 183 So. 3d 286 ( 2015 )

Supreme Court of Florida
____________
No. SC12-1386
____________
STEVEN DOUGLAS HAYWARD,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC13-1787
____________
STEVEN DOUGLAS HAYWARD,
Petitioner,
vs.
JULIE L. JONES, etc.,
Respondent.
[June 25, 2015]
PER CURIAM.
Steven Douglas Hayward appeals an order of the circuit court denying his
motion filed under Florida Rule of Criminal Procedure 3.851 to vacate his
conviction of first-degree murder and sentence of death after an evidentiary
hearing on certain issues raised in the motion. He also petitions this Court for a
writ of habeas corpus, alleging ineffective assistance of appellate counsel. We
have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons set forth
below, we affirm the denial of postconviction relief and deny his petition for a writ
of habeas corpus.
I. BACKGROUND AND FACTS
Hayward’s convictions for first-degree murder, armed robbery, armed
burglary of a conveyance, and possession of a firearm by a convicted felon, and his
death sentence, were affirmed on direct appeal in Hayward v. State, 24 So. 3d 17(Fla. 2009), cert. denied, 559 U.S. 1097 (2010). The facts of the case were set
forth in this Court’s direct appeal decision in detail. Hayward shot and robbed
Daniel Destefano in St. Lucie County in the early morning hours of February 1,
2005. Trial was held in 2007. Destefano was a newspaper delivery person in Fort
Pierce and was filling a newspaper stand at a convenience store around 4 a.m.
when he was accosted by Hayward. A witness heard Destefano shouting “I don’t
have no more,” and heard two gunshots followed by a louder gunshot. Id. at 24.
Hayward shot Destefano twice with a .22 caliber pistol and Destefano, who
had a concealed weapons permit for his .357 caliber revolver, shot Hayward once
in the hand. The witness saw a black man searching Destefano’s car and then
going under a street light where he appeared to examine his hand. The man was
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wearing some sort of head covering. Id. The witness saw Destefano limp away in
an easterly direction and saw the black male leave the area in a westerly direction
by way of a short-cut around the witness’s nearby rooming house. Id. Hayward’s
blood was later found at the crime scene on personal items around Destefano’s car,
on the outside wall of the witness’s rooming house, and on a fence post near the
witness’s rooming house. Id. at 26. Not long after he was shot, Destefano was
found about a block away. When paramedics and police responded, an officer
asked him, “What happened?” to which Destefano responded that a black male
with a stocking cap over his face had shot him. Soon thereafter Destefano died.
Id. at 24.
Hayward’s girlfriend testified that Hayward came to their rooming house
near the convenience store just before dawn on the day of the shooting with an
injury to his hand. Two days after the shooting, police responded to the rooming
house after receiving a report that someone there had a possible gunshot wound to
his hand and had asked a resident to sew it up. Id. at 24-25. The police were
allowed by other residents to enter and found Hayward coming out of a communal
bathroom. They asked to see his wound, which was wrapped, and he showed it to
them, claiming it was a knife wound inflicted by his girlfriend. Hayward
consented to go outside and speak with officers. Hayward was subsequently asked
to come to the police station to discuss the injury to his hand, to which he agreed,
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and was handcuffed for the ride in the back seat of the police car. The officer told
Hayward he was not under arrest, and that it was “policy” to handcuff anyone
being transported in the police car. Hayward suddenly stated that he “wasn’t going
to lie” and that he had been robbed and shot several days earlier. Hayward’s
girlfriend also informed the officers that she had stabbed Hayward in the hand, but
that he had reported to her that he had been shot when two black men were robbing
him. She said he was shot in the same hand where she had earlier stabbed him. Id.
at 25.
Once at the police station, Hayward was uncuffed but secured by an ankle
bracelet, and was advised of his Miranda rights.1 During the interview, he told
police he had not been stabbed in the hand, but had been shot in the robbery
attempt by two men, one black and one Mexican, when he attempted to take their
gun away. He later changed the story to say he was not robbed, but had witnessed
Destefano being robbed and shot by a lone man, and that when he, Hayward,
attempted to pick up a gun at the scene, he was accidentally shot. He also admitted
going through Destefano’s car looking for anything of value. Id. at 25. Several
months later, the murder weapon, a .22 caliber revolver, was found behind a wall
1. Miranda v. Arizona, 384 U.S. 436 (1966).
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board in the rooming house where Hayward’s girlfriend lived. Hayward’s blood
was found inside the gun’s firing chamber. Id. at 26.
At the penalty phase, the State presented evidence of Hayward’s prior
conviction for second-degree murder and armed robbery. Hayward presented
mitigation through testimony from four family members and an expert. Id. at 27.
The jury returned a verdict recommending death by a vote of eight to four, and the
trial court followed the recommendation, finding two aggravators: (1) prior violent
felony convictions (extremely great weight); and (2) murder during the course of a
robbery merged with pecuniary gain (great weight).
No statutory mitigators were offered or found, but the trial court found the
following nonstatutory mitigation: (1) Hayward could have received a life
sentence; (2) he grew up without a father; (3) he was loved by his family; (4) he
had academic problems; (5) he obtained a GED in prison; (6) he would make a
good adjustment to prison; (7) he had financial stress at the time of the crime; and
(8) he had some capacity for rehabilitation. Each mitigating factor was given
“little weight” except for the factor that Hayward could have gotten a life sentence,
which was given “very little weight,” and the factor that he grew up without a
father, which was given “some weight.” Id.
On direct appeal, Hayward raised a number of claims of error pertaining to
his conviction and his sentence, which were found to be without merit or harmless
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beyond a reasonable doubt.2 We affirmed the convictions and sentence, finding
that Destefano’s statements to the first responders describing his attacker qualified
as an excited utterance exception to the hearsay rule and not as a dying declaration.
Id. at 31. However, we also concluded that the statements were a Confrontation
Clause violation under the authority of Crawford v. Washington, 541 U.S. 36(2004), although we found the error to be harmless beyond a reasonable doubt.3
2. On appeal, Hayward asserted that (1) the statements of the murder victim
to police describing his attacker were improperly admitted under the excited
utterance and dying declaration exceptions to the hearsay rule, and in violation of
the Confrontation Clause; (2) introduction of Hayward’s statements to police at the
rooming house and their observations while there violated his Fourth Amendment
rights; (3) introduction of the recorded jail conversations between Hayward and
former girlfriend Dorothy Smith were more prejudicial than probative due to the
vulgarity of the language used, affecting both the guilt and penalty phases;
(4) comments made by the prosecutor in closing argument during the penalty phase
comparing the life choices made by the victim and by Hayward constituted
prosecutorial misconduct requiring resentencing; (5) there was insufficient
evidence concerning the identity of the shooter; (6) there was insufficient evidence
as to whether a robbery was actually accomplished; (7) there was insufficient
evidence establishing premeditation; (8) the standard jury instruction on
premeditation is insufficient; (9) Florida’s sentencing scheme is unconstitutional
under Ring v. Arizona, 536 U.S. 584 (2002); and (10) imposition of a death
sentence based on an eight-to-four jury recommendation is unconstitutional. See
Hayward, 24 So. 3d at 28.
3. After this Court issued its opinion in Hayward, the United States
Supreme Court decided Michigan v. Bryant, 562 U.S. 344 (2011), in which the
Supreme Court held that it was not a Crawford confrontation clause violation to
admit the out-of-court statements of a mortally wounded shooting victim
identifying the shooter under circumstances very similar to those in this case
because the primary purpose of the statements was to enable police to meet an
ongoing emergency. Id. at 349.
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As to the police encounter with Hayward in the rooming house, we found
that the encounter was consensual and that the police had probable cause to detain
Hayward for questioning. As to the claim that Hayward was illegally detained
when handcuffed as a matter of policy for the ride to the police station, we
explained:
The State concedes that handcuffs are restraining devices but
contends that Hayward was not detained because the use of handcuffs
during transport was a routine safety measure followed by the police.
Although Hayward was in the process of being handcuffed pursuant to
police policy at the time of his statement, the totality of the
circumstances, including the purpose of the officer’s conduct and the
spontaneous nature of Hayward’s statement, demonstrate that his
statement was not the result of any alleged illegal detention.
Hayward, 24 So. 3d at 36. This Court found that once at the police station,
Hayward was detained, but gave his statements voluntarily after waiving his
Miranda rights. Id. at 36-37.
As to Hayward’s claim of fundamental error in prosecutorial comments
comparing his life choices with those made by the victim, we found that the
argument was error but not fundamental. Id. at 42. Hayward’s other claims on
direct appeal were found to be without merit.
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Postconviction Proceedings
On April 21, 2011, Hayward filed his initial motion for postconviction relief,
which he subsequently amended on August 16, 2011.4 After a case management
4. In his rule 3.851 amended motion, Hayward raised the following claims:
(1) application of Florida Rule of Criminal Procedure 3.851 to Hayward’s case was
improper because it limits the time for filing postconviction proceedings as to
death-sentenced individuals and treats them differently than all other persons
seeking postconviction relief, prejudicing Hayward because it provided insufficient
time to obtain all necessary records and prepare for an evidentiary hearing;
(2) Hayward’s constitutional rights are being violated by being denied access to
public records because section 119.19, Florida Statutes, and Florida Rule of
Criminal Procedure 3.852 limit the production of public records in capital
postconviction cases, thus violating article I, section 24, of the Florida
Constitution; (3) rules prohibiting Hayward’s counsel from interviewing jurors to
determine if constitutional error is present deny Hayward his constitutional rights;
(4) trial counsel was ineffective during the guilt phase of trial due to professional,
personal, and emotional problems during the trial requiring him to be medicated
with psychotropic drugs, and co-counsel was suspended from the practice of law
for 90 days while preparing for Hayward’s trial, thus providing a conflict of
interest—resulting in ineffective assistance in the motion to suppress hearing
concerning incriminating pre- and post-Miranda statements to police, failure to
challenge scientific evidence in the guilt phase, failure to effectively challenge the
State’s witness Roosevelt McDowell, and failure to effectively argue for exclusion
of hearsay statements; (5) trial counsel was ineffective in (a) failing to investigate
and present mitigation evidence, including mental health mitigation, (b) failing to
provide sufficient time for the expert to examine Hayward, and failing to discover
and present mitigation concerning Hayward’s childhood, and the fact that he was
impoverished, abused, suffered impaired cognitive functioning, low intelligence,
brain damage, and a history of alcohol and drug abuse, (c) failing to discover and
prepare family members, teachers, or social workers, and obtain school records for
mitigation, (d) failing to object to prosecutorial misconduct in closing argument
which the Florida Supreme Court found improper on direct appeal but not
fundamental; and (6) Florida’s lethal injection statute and existing procedures are
unconstitutional.
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hearing held on December 19, 2011, the trial court ordered an evidentiary hearing
on certain of the claims. The evidentiary hearing was held on February 27, 2012,
through March 1, 2012, and March 28, 2012. At the hearing, Hayward presented
the testimony of trial counsel Robert Udell and Jerome Stone, Jr.; family members
Barbara Johnson (mother), Debra Fleury (sister), Derrick Green (brother), and
Terrance Hayward (brother); Pamela Clark (mother of his child); forensic and
clinical psychologist Dr. Michael Riordan; trial defense investigator Venus
Oleyourryk; social worker Cecelia Alfonso; and behavioral neurologist Dr.
Thomas Hyde. The State presented Fort Pierce Police Captain Greg Kirk, State
Attorney Investigator Ed Arens, Jr., and Dr. Michael Riordan. The circuit court
entered its order denying postconviction relief on June 14, 2012, and this appeal
followed.
After Hayward filed his notice of appeal from denial of postconviction
relief, he filed a petition for writ of habeas corpus in this Court on September 17,
2013, raising one claim. He contends in his petition that his appellate counsel was
ineffective for failing to raise as fundamental error a claim that State’s witness
Roosevelt McDowell was incompetent to testify and should have been disqualified
as a witness. Hayward contends that McDowell was “old and sick” and could not
recall even the most basic details of the event he witnessed, and that admission of
this testimony was fundamental error without which the jury would not have had a
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basis to find that the murder occurred in the course of a robbery and was
committed for pecuniary gain; and that the jury would not have recommended a
sentence of death. We turn first to the issues raised in Hayward’s appeal from
denial of postconviction relief.
II. ANALYSIS
A. Claim of Ineffective Assistance of Counsel in the Penalty Phase
Hayward contends that both of his trial counsel were deficient in
investigating and presenting mental health mitigation and family background
mitigation in the penalty phase of his trial. Hayward further claims that this
deficient performance prejudiced him and that, had the information been developed
for the jury and the judge, he probably would have received a life sentence.
To prevail on a claim of ineffective assistance of counsel, the defendant
must show that counsel’s representation fell below an objective standard of
reasonableness and, but for counsel’s deficiency, there is a reasonable probability
that the result of the proceeding would have been different—a reasonable
probability being one sufficient to undermine confidence in the outcome.
Strickland v. Washington, 466 U.S. 668, 694 (1984). Where the defendant claims
counsel rendered ineffective assistance in the penalty phase, “the question is
whether there is a reasonable probability that, absent the errors, the sentencer . . .
would have concluded that the balance of aggravating and mitigating
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circumstances did not warrant death.” Id. at 695; see also Foster v. State, 132 So.
3d 40, 52 (Fla. 2013). “To assess that probability, [the Court] consider[s] ‘the
totality of the available mitigation evidence . . .’ and ‘reweigh[s] it against the
evidence in aggravation.’ ” Porter v. McCollum, 558 U.S. 30, 41 (2009) (quoting
Williams v. Taylor, 529 U.S. 362, 397-98 (2000)).
However, Strickland cautions that “[a] fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.” 466 U.S. at 689. We
must “indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)).
The Supreme Court also recognized that “[t]he reasonableness of counsel’s
actions may be determined or substantially influenced by the defendant’s own
statements or actions.” Id. at 691. Because both deficient performance and
prejudice must be shown, a reviewing court is not required to issue a ruling on one
prong of the test when it is apparent that the other element is not satisfied. See id.
at 697; Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986). With this
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standard in mind, we turn to the question of whether Hayward demonstrated that
trial counsel was deficient in investigation and presentation of mental health and
background mitigation at trial.
Hayward was represented at trial by Robert Udell and Jerome Stone, who
were assisted for a short time by an investigator named Venus Oleyourryk. The
defense theory developed by the team was that Hayward came from a reasonably
good background with productive relatives and would do well if given life in
prison. Stone testified that defense counsel decided not to present testimony from
any of Hayward’s siblings who were in prison or had criminal records because
presenting testimony of relatives who had been incarcerated or had a criminal
history would only emphasize the fact that Hayward had been in prison. At the
penalty phase of trial, counsel presented testimony of Hayward’s sister Debra, who
was a Sheriff’s deputy, his mother, and his brother Terrance, who had been in the
military. Trial counsel also reviewed school records and obtained a life history of
Hayward. Stone did not recall Hayward reporting any abuse by family members
when he was growing up.
Robert Udell, lead counsel in Hayward’s trial, testified that in preparation
for the penalty phase, he reviewed Hayward’s medical records, school records,
criminal history, Florida Department of Corrections records, and some social
history records. He spoke with Hayward’s family members in a group setting and
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spoke with Hayward’s mother and sister numerous times by telephone. He
recalled that the family members told him the family was somewhat dysfunctional
and poor, but loving. Udell learned that Hayward’s father suffered from alcohol
abuse and was sometimes violent in disciplining Hayward, but that Hayward was a
loved family member.
Venus Oleyourryk, a registered nurse who also acted as an investigator in
court cases, including Hayward’s beginning in June 2005, testified at the
evidentiary hearing that she assisted Udell with Hayward’s case and also assisted
Udell in a California criminal case he litigated from 2006 to January 2007. In
Hayward’s case, Oleyourryk spent 100 hours between June 2005 and May 2006
meeting with Hayward, copying discovery, and going through documents. She
spoke to Hayward’s mother and sister early in the case. She did not perform any
work on Hayward’s case after May 2006, and spent most of her time on the
California case, which concluded with a verdict against Udell’s client in January of
2007, two months before Hayward’s trial. She testified that after Udell’s client in
the California case was convicted, Udell appeared to be “in a haze.”
During trial preparation, Udell also retained Dr. Michael Riordan shortly
before Hayward’s trial. Dr. Riordan evaluated Hayward and informed Udell that
Hayward exhibited some traits of antisocial personality disorder and suggested that
additional testing could be done, but indicated it might not be fruitful in terms of
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mitigation. Udell testified at the evidentiary hearing that he did not want further
testing to confirm antisocial personality disorder, which sounded more like
aggravation than mitigation. Dr. Riordan told Udell that if the testing revealed a
personality disorder “not otherwise specified,” rather than antisocial personality
disorder, such result might be mitigating; although if the testing confirmed
antisocial personality disorder, that might be considered aggravating. Dr. Riordan
explained that the basis for concluding there were characteristics of antisocial
personality disorder was Hayward’s history of criminal activity.
Although he was hired only shortly before trial, Dr. Riordan had sufficient
time to prepare and did testify during the penalty phase of trial. He examined
Hayward for mitigating evidence and took a psychological history, noting that
Hayward appeared to be a “reliable historian.” He reviewed Hayward’s school
records, social history records, and Department of Corrections records. Dr.
Riordan testified during the penalty phase that Hayward’s biological father was
often intoxicated and offered Hayward alcohol when he was five years old. Dr.
Riordan told the jury about Hayward not receiving guidance from his father and
having to rely on older siblings because his mother was often absent. The jury
heard that Hayward had a substance abuse problem and alcohol problem in his teen
years and that Hayward functioned below his intellectual ability in school,
necessitating placement in special education for a period of time. The jury also
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heard from Dr. Riordan that Hayward had suicidal thoughts while in prison, but
there was no indication of psychosis. Dr. Riordan told the jury about how well
Hayward worked in prison and how he received outstanding ratings for his work
there.
The subject of Hayward suffering physical abuse from his siblings did not
come up during Dr. Riordan’s trial testimony, although Hayward’s older sister
Theresa testified in the penalty phase that she and her siblings often beat Hayward
as a form of discipline. Dr. Riordan testified at the evidentiary hearing that he was
aware the children in the family lived in a state of neglect but opined that because
they did not think of it as neglect at the time, it might not have been reported as
neglect. He agreed that the belief by the children that their upbringing was normal
could account for why Hayward and his siblings did not report any abuse or
neglect.
Hayward’s older sister, Debra Fleury, a Fort Pierce Sheriff’s Deputy,
testified at the penalty phase that their mother worked two jobs and provided the
children a good clean home with food and clothing to the best of her ability.
Fleury confirmed that her older sister Theresa would give Hayward a “whooping”
as discipline. She said Hayward was a good brother but started getting into trouble
around age 13 or 14 while she was in the military. She said Hayward was hard-
headed and angry, especially when a baby cousin came to live with them.
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At a Spencer5 hearing prior to sentencing, Fleury testified that she wanted
the court to know that the siblings did not testify about “everything” in the penalty
phase. She explained to the court, “They’re embarrassed. But the Court needs to
know that my family was not the Huxtables and weren’t the Cleavers. We were
totally different. We were I would say dysfunctional.” She testified that some of
her brothers were now in prison and had drug problems, her sister is a recovering
drug addict, and one brother did well in the military but came back with a drug
abuse problem. She also testified at the Spencer hearing that her older brothers and
sister were rough on Hayward as a child, and that Hayward’s biological father had
anger problems and was an alcoholic, “but he didn’t give us any problems.”
At the postconviction evidentiary hearing, Fleury testified that her sister
Theresa was responsible for caring for her siblings, starting when Fleury was only
five years old and Hayward was a baby. Theresa was characterized as “bossy and
mean,” and Fleury testified Theresa would hit the children. When Hayward’s
stepfather Harold came home on weekends, the children would get “a whippin’.”
Fleury said he beat them with tree branches, belts, extension cords, or a water hose
on their arms, legs, backs—anywhere he could reach. They had to “hug the wall”
5. Spencer v. State, 615 So. 2d 688 (Fla. 1993) (providing for a hearing
after trial at which the parties may present to the sentencing judge any additional
information or evidence pertinent to the appropriate sentence to be imposed and to
afford the defendant an opportunity to be heard in person).
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during the beatings and if they ran, the other children had to bring them back and
hold them for the beating. Fleury testified that her mother beat the children too if
she was drinking alcohol, and her beatings were more methodical and took longer.
She also used switches, extension cords, or a water hose, and would wake them up
in the middle of the night to beat them if the kitchen was not cleaned up. Hayward
was not deterred by the beatings and would get beaten more and started running
away at age 12 or 13.
Fleury testified at the evidentiary hearing that their mother and some of the
children, including Hayward and infant cousin Sam Peaks, moved to Vero Beach
when Fleury was around nine years old to get away from Hayward’s stepfather
Harold. Tony Johnson, Hayward’s biological father who was a fruit contractor,
lived with them in Vero Beach, and her mother and the children often worked in
the orange groves. When Johnson was drunk, he was verbally abusive. He and
their mother fought physically and their mother would sometimes call the police.
Fleury testified she was aware that Hayward’s siblings beat him because she saw
them doing it. Approximately twice a week, they would “body slam” him in the
yard, throw him against the walls and furniture, and might have hit him with their
fists.
Fleury testified that she met once with trial counsel Udell several weeks
before the trial and then a couple of times during the trial. She never met with any
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of trial counsel Udell’s experts. She said Udell never asked about any beatings
when the children were growing up and never asked about Tony Johnson’s
behavior or the violent relationship with Harold Hayward, nor did he ask about her
mother’s alcohol use.
Fleury agreed during the evidentiary hearing cross-examination that she told
the judge at the Spencer hearing that the family was embarrassed to say what
occurred in Hayward’s childhood. She also agreed that her testimony at the
evidentiary hearing about Theresa’s treatment of the children differed only “in the
details” from what she testified to at trial. She denied holding back information
and denied misleading the court at the trial and Spencer hearing, and said that any
discrepancies in her testimony were not intentional.
Hayward’s brother Terrance Hayward testified during the penalty phase at
trial and was called to testify at the evidentiary hearing. At trial, Terrance testified
that he previously served in the Army and was working in construction. He said
Hayward’s biological father, who lived with them for a time, was an alcoholic, and
that Hayward and his brothers were close and cared about each other.
At the postconviction evidentiary hearing, Terrance testified that when he
and his brother were growing up, his father was away most of the time and their
mother worked two jobs, so the children raised themselves. When his father
Harold came home, his mother would report who had disobeyed that week and his
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father would give them a “whoopin’.” He reiterated that the children were hit with
hoses, extension cords, tree branch switches, and other things on their arms, legs,
and backs, which resulted in welts, bruises, and torn skin. He said Hayward was
given the same treatment. His mother would also give the children whippings.
He testified that the children often went hungry because there was no food in
the house. Terrance would obtain food with expired dates, which a friend got to
feed his hogs, and bring it home to the family to eat. Terrance testified that
Hayward’s biological father Tony Johnson lived with them in Vero Beach. He and
Hayward’s mother would argue and fight when the children, including Hayward,
were in the house and the fights resulted in several stabbings. Terrance said the
whole family would work in the orange groves on weekends and after school, and
sometimes as punishment. Terrance and his brothers would beat Hayward in what
they called “initiation” to toughen him up. The toughening up happened two or
three times a week and consisted of different wrestling moves. When it was done
on Hayward, he was about eight years old, and they would “body slam” him,
punch him, and perform other wrestling moves on him that they saw on television.
Terrance testified that he attended the group meeting with trial counsel Udell
prior to trial and met once again in the courtroom during trial. Udell did not ask
about any beatings, fights between his mother and Tony Johnson or Harold
Hayward, eating expired food, or his father’s or mother’s alcohol consumption.
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Udell asked Terrance about himself, but not why he was discharged from the
military, which was for drug addiction. Terrance confirmed that his brothers Leon
and Derrick, and his cousin Samuel Peaks, had all been in prison.
Hayward’s mother, Barbara Johnson, who also testified at the penalty phase
of trial, testified at the evidentiary hearing about her two marriages and the
children she raised—six of her own, plus Peaks, and several grandchildren.
Postconviction counsel was not allowed to present testimony about Barbara
Johnson’s childhood with a family in South Carolina. The testimony was proffered
that Barbara’s mother placed her and her brother with “foster parents” Daisy and
Lawrence Green.6
6. Barbara testified on proffer that life was not good with the Greens
because she was beaten regularly with switches and rope. Barbara said that Daisy
Green tied her to a tree for eating some of the family’s food without permission,
and once strung her up in a tree naked and beat her. Daisy also kicked her in the
head, leaving a scar. Barbara said she did not know that this was not normal
treatment. Daisy made her quit school in eighth grade and work in the cotton and
tobacco fields. When Barbara was about seventeen years of age, she was sent to
New York to work and send money back to Daisy. Barbara got pregnant there by a
man named Nathaniel and returned to the Greens where she had a baby she named
Derrick. When Derrick was a toddler, Barbara was made to marry Harold
Hayward and they moved away. Derrick was left with the Greens but she retrieved
him from the Greens when he was about eleven years old. The proffer was ended
and the evidence was excluded.
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Johnson related moving to Florida and having five more children in
somewhat quick succession. She started working after Hayward, her youngest,
was born. Because her husband, Harold, worked in construction and only came
home on weekends, her seven-year-old daughter Theresa was in charge of taking
care of toddler Hayward. The older boys had no caretaker most of the time. When
her infant nephew Samuel Peaks came to live with them when Hayward was about
five, Theresa had to take care of him too.
Barbara testified at the evidentiary hearing that when Harold came home on
weekends, she would report what the children had done during the week and “[h]e
would whip ‘em with a switch off a tree.” Barbara said she also beat the children
with a switch when they were little because that was what was used on her as a
child. She and Harold got drunk when he was home on weekends and, when
drinking, they fought in front of the children. She said she, Harold, and the
children would work in the orange groves on the weekend to make money to buy
alcohol.
Barbara and Harold fought a lot and separated several times, but the last
time occurred when she came home and found that Harold had hit daughter
Theresa with a rubber automotive belt and injured her leg. Tony Johnson,
Hayward’s biological father, helped her and some of the children relocate to Vero
Beach and moved in with them. Barbara and Tony, who was an alcoholic, fought
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almost every night, and Tony would sometimes brandish a knife or a gun, so she
often called the police. At one point, she cut him with a knife. Barbara testified
that Hayward was in trouble a lot while in school and had difficulty with school
work, but she could not help him because she did not have much education and
could not afford to obtain help for him.
She testified at the evidentiary hearing that she learned from a neighbor that
Hayward’s brothers were “not treating” him right. The State objected that this was
hearsay, so her testimony was proffered that when Hayward was a child, a
neighbor, now-deceased Lucy Collins, told her that the older brothers “fought”
Hayward when he was about age eleven. The court excluded the testimony,
finding the hearsay “blatantly unreliable,” and because of the inability of the State
to rebut it.7
In preparation for trial, Barbara met once with trial counsel Udell in his
office for several hours, along with other family members, and she had several
telephone conversations with Udell. Udell did not ask about Hayward’s childhood
or her own childhood, whether Hayward was beaten, or about her fights with
7. Barbara Johnson testified to this same information at the Spencer hearing
after the penalty phase of trial. Also, during the penalty phase of trial, Hayward’s
mother testified that due to the family’s financial difficulties, she had to work two
jobs and was frequently absent from the home, and that Hayward’s stepfather was
present in the home during his early years and that he loved Hayward.
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Harold Hayward or Tony Johnson. He did ask about Tony’s alcohol consumption
and they discussed Terrance’s drug abuse. She only met co-counsel Stone in court.
Derrick Green, Hayward’s brother, testified at the evidentiary hearing that
he was currently incarcerated for armed robbery and other charges. At about age
eleven, he was retrieved from the Greens in South Carolina by his mother, Barbara
Johnson, and brought to live in Florida with her and Harold Hayward. Derrick was
not allowed to testify about the abuse he suffered in South Carolina at the hands of
Daisy and Lawrence Green, so that testimony was proffered.8 He was taken to
Florida by his mother and lived in the household with his other half-brothers and
sisters where he also received beatings when Harold Hayward came home. He was
struck with switches, a water hose, a washing machine belt, and a piece of car tire.
He said Harold appeared to enjoy beating the children. The boys, and especially
Hayward, would get beaten more than the girls. Derrick also testified that their
mother would sometimes give beer to the children, including Hayward. His
8. On proffer, Derrick testified that when living with the Greens, he
received beatings with a switch or other object about every other day from age five
to age eleven when his mother came to get him. Lawrence Green sometimes
whipped him with a leather horse whip. He testified that once Daisy Green hit him
in the eye during a beating and he was blind for several weeks. He was made to
pick cotton, tobacco, and vegetables from about age five. When he was about
eleven years old, his mother, along with Harold Hayward and Tony Johnson, came
to get him and took him away after his cousin called them to report the abuse he
was receiving from the Greens.
- 23 -
mother separated from Harold after he got angry at Derrick and retrieved his gun,
although she left Derrick and Leon at the house with Harold when she and the
other children moved to Vero Beach.
Derrick testified about Tony Johnson coming to live with them in Vero
Beach. His mother admitted to him that Tony was Hayward’s biological father,
although Hayward only learned of this when he was older. Derrick said his mother
beat Hayward starting when Hayward was four or five years old, but Tony Johnson
never hit the children. Derrick and the other family members worked in the groves
with Tony on weekends or when school was out. Derrick testified that he and his
brothers abused Hayward from the time he was about seven, thinking they were
toughening him up, and when he cried they just did it more. They used Hayward
as their “guinea pig” to practice the wrestling moves they saw on television.
Derrick left home at age seventeen and, when Hayward went to trial for this
murder, Derrick was in prison in Georgia and no one from the defense team
contacted him.
On cross-examination, Derrick denied telling the State Attorney investigator
Ed Arens prior to this hearing that his mother did not beat the children and denied
telling the investigator that there was nothing to report concerning abuse of
Hayward during his childhood. Derrick said he did not view the wrestling that the
brothers did with Hayward as abuse at the time, but looking back on it now, he
- 24 -
thinks it was abuse. By way of impeachment of Derrick, the State presented the
testimony of investigator Ed Arens that he interviewed Derrick Green in prison on
February 7, 2012, about one month before the evidentiary hearing and asked
Derrick if their mother had ever been abusive to the children. Arens testified
Derrick did not tell him that his mother did any disciplining and did not mention
the brothers or sister being abusive to Hayward, even though the question was
asked if anyone had been abusive to Hayward when he was growing up. Derrick
told him only his father and stepfather were abusive toward the children.
In addition to family members, postconviction counsel presented Pamela
Clark, the mother of Hayward’s son, who said she could have testified at trial
about Hayward being a loving father.
Cecilia Alfonso, a forensic social worker and mitigation specialist in death
penalty cases, testified at the evidentiary hearing. Alfonso performed a
“biopsychosocial assessment” of him after meeting with him for three and one-half
hours. She also reviewed school, medical, and prison records, as well as trial
transcripts. Based on school records, she concluded Hayward had a learning
disability, poor school attendance, repeated several grades, and dropped out at age
sixteen. She testified that his standardized testing scores were low. She concluded
from the Department of Corrections’ records that he had suicidal thoughts at one
time, and had some unresolved health problems.
- 25 -
She interviewed family members and Hayward’s former girlfriend Dorothy
Smith. Alfonso was not allowed to testify about Hayward’s mother’s childhood or
the childhood experiences of Hayward’s brother Derrick before Hayward was
born.9 Alfonso was allowed to testify that Derrick reported to her that when living
with Barbara Johnson and Harold Hayward, Harold would repeatedly beat the
children with a switch, a belt, or a cord.
The court also excluded Alfonso’s proffered testimony that in her interview
with Hayward’s sister, Theresa Williams, Alfonso was told that Theresa and her
brothers were abused and that the mother was absent most of the time.10
9. The testimony was proffered about Hayward’s mother’s life with the
Greens in South Carolina. A further proffer was made that the mother’s childhood
experiences were relevant mitigation for Hayward because it showed that she
raised her children in an abusive manner just like her foster parents raised her, and
as a consequence, that type of violence was internalized by Hayward, and his
ability to develop a sound decision-making process was adversely affected.
Alfonso was also not allowed to testify about the childhood of Hayward’s older
brother Derrick when he lived with the Greens.
10. Alfonso’s testimony was proffered that Theresa told Alfonso that she hit
and pinched Hayward; that the mother drank alcohol on a daily basis and would
drink alcohol and fight with Harold Hayward on weekends; and that Harold would
beat the children. Theresa reported that Tony Johnson was also a drunk and would
threaten the children when he was home. Alfonso said this information supported
the conclusion that violence was normalized in Hayward’s mind as he was growing
up; and that in acting in a surrogate mother position, Theresa also violated the
responsibility of nurturing and protecting Hayward.
The court also excluded as inadmissible hearsay Alfonso’s testimony of
what she learned from Samuel Leon Hayward, one of Hayward’s older brothers.
Alfonso testified on proffer that Leon said Harold would beat them when he came
home on weekends and that one time after a drunken fight with the mother, Harold
- 26 -
Hayward’s mother reported to Alfonso that after she separated from Harold, Tony
Johnson moved in and was a very heavy drinker. He did not beat the children, so
the mother took over that responsibility of discipline and would hit them with a
switch or a belt on their back and arms. Alfonso testified that her interview with
Hayward’s brother Terrance confirmed that Hayward was raised in a “battle zone”
and was subjected to repeated abuse, which taught Hayward that violence is
acceptable.
Alfonso concluded that the violence Hayward suffered and was exposed to
as a child deprived him of learning about nonviolent ways to live. She opined that
his low-normal IQ indicates that he had the ability, but was not provided with the
cognitive tools, to develop strategies for coping. She said his environment
deprived him of a sense of competence in the area of academics, but taught him to
value competence in fighting and being able to tolerate physical and emotional
realized she had shot him in the foot. Leon would punch, beat, and jump on
Hayward to take out his own frustrations. Alfonso explained that this was
significant as mitigation because it contributed to the extent, nature, and duration
of the abuse Hayward suffered. Also on proffer, Alfonso testified to her
conversation with Hayward’s former girlfriend, Dorothy Smith, who said that she
grew up in the same neighborhood as Hayward’s family and they were all “crazy,
dirty, and bizarre.” Alfonso said this was an indication of mental illness in the
family. Alfonso said Smith told her that while she was in the relationship with
Hayward, he acted strangely and had suicidal thoughts. The judge excluded
Alfonso’s opinion that Hayward’s mother failed in her role to nurture and protect
Hayward. The circuit court held that it was not relevant to what mitigation was
available for presentation to the penalty phase jury.
- 27 -
abuse. She said the mitigation she developed was different than that presented in
the penalty phase of trial because there was no presentation of the nature, extent,
and duration of the abuse that occurred and, although witnesses said it was a
dysfunctional family, the details were not provided to the jury.
Hayward presented the testimony of Dr. Thomas Hyde, a behavioral
neurologist, at the evidentiary hearing. Dr. Hyde was given background materials
and records, and met with Hayward to evaluate his neuropsychiatric history, to
perform an examination, and reach some general conclusions about his
neuropsychiatric status. Dr. Hyde testified that he performed a “Mini Mental State
Examination,” sometimes known as the Folstein Mental State Exam, a behavioral
neurological examination, as well as cranial nerve, motor, gate, and sensory
examinations and a limited general physical examination.
Dr. Hyde concluded that Hayward had poor complex motor sequencing in
both hands, which he said is often indicative of frontal lobe dysfunction. Dr. Hyde
also concluded that Hayward had subtle abnormalities that were significant—
increased deep tendon reflexes at the left biceps, triceps, brachioradialis, knee and
ankle, and crossed adductors on the left, all suggesting right frontal lobe
dysfunction. Dr. Hyde concluded that Hayward suffered from right frontal lobe
dysfunction which adversely affects his prioritization, reason, judgment, problem
solving, attention span, focus, and manipulation of information. He explained that
- 28 -
frontal lobe dysfunction can also cause impulsivity, inability to maintain long-term
relationships, employment difficulty, and substance abuse; and can make the
individual susceptible to mood disorders, such as depression and manic depressive
illness. Dr. Hyde did not ask for an MRI, PET, or any other brain scan testing to
be done.
Dr. Hyde opined that Hayward’s poor school performance despite a 91 IQ
indicated either a learning disability or some type of developmental neurological
dysfunction affecting his performance. He opined that school records and
Hayward’s performance on the testing done by Dr. Hyde indicated Hayward
suffered from attention deficit disorder. He said Hayward had elements in his
history consistent with depression NOS (not otherwise specified) dating back to
childhood but did not meet DSM-IV R criteria for major recurrent depressions.
Overall, Dr. Hyde found that Hayward had circumscribed areas of cognitive
deficits that were not pervasive but can be significant. Dr. Hyde testified that he
asked Hayward if he suffered any abuse by anyone when he was a child and was
advised there was no abuse history.
In rebuttal, the State recalled Dr. Michael Riordan, who testified that there
are a number of tests that a forensic neuropsychologist can administer to assess and
diagnose brain damage in the various lobes of the brain. The Expanded Halstead-
Reitan Battery is one of those tests, comprising twenty-one separate elements.
- 29 -
Dr. Riordan examined the testing done by Dr. Hyde and the RBANS test
(Repeatable Battery for the Assessment of Neuropsychological Status Update)
administered by a Dr. Harvey, who did not testify. Based on this review,
Dr. Riordan did not find any indication of frontal lobe damage. Dr. Riordan did
not believe the “Mini Mental State Exam” performed by Dr. Hyde was the proper
test to use to determine if there was frontal lobe impairment. He further concluded
that Hayward’s score on the test was normal and did not indicate any problem.
Dr. Riordan said Dr. Hyde’s examination did not go far enough and, to the extent
any of his findings suggested frontal lobe damage, further neuropsychological
testing should have been done.
The Postconviction Order Denying Relief
On this issue, the circuit court denied relief, concluding that Hayward
presented no records that trial counsel had failed to provide to Dr. Riordan at trial,
and Hayward failed to show that Dr. Riordan had insufficient time to review the
records or perform a thorough mental health examination. The court concluded
that Dr. Riordan found no reason to conduct neuropsychological testing, but
recognized traits of antisocial personality disorder that would not be mitigating.
The court also found that Dr. Hyde relied on the same records as Dr. Riordan and
did not administer any psychological tests. The court held that the fact that
Dr. Hyde arrived at a different conclusion than Dr. Riordan did not prove the initial
- 30 -
evaluation by Dr. Riordan was inadequate. The court noted that Dr. Hyde found
no history of head injuries and that, although he found soft signs of frontal lobe
dysfunction, depression NOS, and childhood ADHD, Dr. Hyde could not describe
the degree of neurological impairment or link these diagnoses to Hayward’s adult
functioning and behavior. The court also noted that Dr. Riordan reviewed the
results of Dr. Hyde’s examination and found no evidence of frontal lobe
impairment.
As to the claim that trial counsel was ineffective in discovering and
presenting evidence of childhood abuse and neglect and in failing to properly
prepare lay witnesses to testify in the penalty phase, the circuit court also denied
relief. The court concluded that evidence that Hayward was punished from the
time he was a young child by whippings or beatings with a hand, belt, switch,
extension cord, water hose, or piece of tire and suffered welts and sores from that
punishment was simply amplification and evolution of the nature, duration, and
extent of the corporal punishment testified to at trial. The family members also
admitted that they believed this punishment was a proper form of discipline and
that “it was the way it was supposed to be,” although their opinions had now
changed.
The court noted the evidence that Hayward lacked adult supervision and
bonding as a child, his parents fought violently, and his brothers beat him and
- 31 -
wrestled violently with him to “toughen him up.” The court found that his father
was an alcoholic, and Hayward did not do well in school, but that much of this
evidence was presented at trial and was simply being amplified in detail. The court
also concluded that this evidence was undercut by the fact that the postconviction
motion alleged the family members were embarrassed to testify to all this
information at trial, by the fact that Hayward failed to report any abuse to his trial
counsel or mental health expert, and by the inconsistent testimony of family
members about abuse and neglect.
The court rejected the testimony of mitigation specialist Cecilia Alfonso,
who presented testimony about how the circumstances of Hayward’s childhood
had an ongoing adverse impact on his ability to make good judgments and conform
to the law as an adult. The court found that her testimony was not credible because
at the evidentiary hearing she testified to details of abuse that she failed to reveal in
her deposition and refused to admit that she was an advocate for the defendant, but
later recanted that position. Finally, the circuit court held that despite the fact that
there was additional evidence of mitigation which was not presented at trial, the
court would assign little weight to those circumstances, and concluded that no
prejudice was shown as to the outcome of the penalty phase. The circuit court
stated that “the mitigating circumstances added to the totality of the mitigating
circumstances found at trial are outweighed by each statutory aggravator.”
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Discussion
The circuit court was correct that much of the information that was provided
by evidentiary hearing testimony was also presented at the penalty phase. The
penalty phase jury heard testimony that Hayward’s parents were mostly absent, his
father was an alcoholic, Hayward did not do well in school, and Hayward’s older
sister would give him a “whooping” as discipline. The trial judge also heard in the
Spencer hearing that Hayward’s brothers would violently wrestle him on a regular
basis. The jury was told by Theresa Williams, Hayward’s sister, that she and her
siblings would “beat him a lot” for discipline. By way of mental mitigation, the
jury was told that Hayward had no bond with his father, that he developed a
substance abuse problem, that he was the product of a dysfunctional family, that he
had academic problems in school and was placed in special education, and had
suicidal thoughts while incarcerated.
Trial counsel Udell and Stone testified at the evidentiary hearing that the
trial strategy was to present Hayward as the product of a successful family with a
hardworking mother who did her best to provide for her six children. Udell
believed evidence that Hayward had traits of antisocial personality disorder would
be aggravating rather than mitigating, and that testimony from family members
who were incarcerated or convicted felons would not have served to paint
Hayward in the best light. Dr. Riordan testified at trial that Hayward would be a
- 33 -
good candidate for a life sentence because he had been successful in prison before,
had received commendations, helped other inmates, supported his child, and could
adapt to life in prison without causing problems.
We have long recognized that trial counsel’s “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.” Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000).
The Supreme Court in Wiggins v. Smith, 539 U.S. 510 (2003), stated that
Strickland does not establish that a cursory investigation automatically
justifies a tactical decision with respect to sentencing strategy.
Rather, a reviewing court must consider the reasonableness of the
investigation said to support that strategy.
Id. at 527 (citing Strickland, 466 U.S. at 691). In assessing the reasonableness of
an attorney’s investigation “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.” Wiggins, 539 U.S. at 527.
Hayward never reported any childhood beatings to his counsel. Stone testified that
he was never told of any childhood abuse even though he met with Hayward
several times to talk about his background “from start to finish.” Stone said he
also reviewed school records and psychological testing records, which were also
provided to Dr. Riordan. Although counsel knew prior to the penalty phase that
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Hayward was essentially raised by his siblings, no one ever told counsel that the
discipline or play the siblings engaged in with Hayward rose to the level of abuse.
This Court has made clear that “an attorney’s obligation to investigate and
prepare for the penalty portion of a capital case cannot be overstated because this is
an integral part of a capital case.” State v. Pearce, 994 So. 2d 1094, 1102 (Fla.
2008). We also explained in Willacy v. State, 967 So. 2d 131 (Fla. 2007), that
“[u]nder Strickland, ‘counsel has a duty to make reasonable investigations or to
make a reasonable decision that makes particular investigations unnecessary.’ ” Id.
at 143 (quoting Marshall v. State, 854 So. 2d 1235, 1247 (Fla. 2003) (quoting
Strickland, 466 U.S. at 691)). However,
[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.
Wiggins, 539 U.S. at 521 (quoting Strickland, 466 U.S. at 690-91). Therefore,
strategic decisions must follow a reasonable and thorough investigation. In light of
the records that trial counsel reviewed, and in light of what both trial counsel were
told—and not told—by family members and Hayward himself about his childhood,
and in light of the possibility that further psychological testing could have
indicated antisocial personality disorder, we find that counsel made a reasonable
- 35 -
investigation before deciding to present a strategy of “humanizing” Hayward and
showing him in the best light possible.
In Rutherford v. State, 727 So. 2d 216 (Fla. 1998), we held that defense
counsel properly relied on a strategy of “humanization” of the defendant rather
than exposing his alcoholism and anxiety disorder. Id. at 223. In so holding, we
drew a clear distinction between counsel’s actions in Rutherford and those in cases
where counsel made a decision to forego mental mitigation without making any
meaningful investigation, such as in Rose v. State, 675 So. 2d 567 (Fla. 1996),
where we reversed because trial counsel’s mitigation decisions were “neither
informed nor strategic” and ‘there was no investigation of options or meaningful
choice.’ ” Rutherford, 727 So. 2d at 223 (quoting Rose, 675 So. 2d at 572-73).
Similarly, this Court granted a new penalty phase in Hurst v. State, 18 So. 3d 975(Fla. 2009), where counsel was presented with information that Hurst had a low
IQ, had borderline intellectual function, and counsel had information that Hurst’s
mother drank heavily when pregnant with him, suggesting the possibility of Fetal
Alcohol Syndrome and brain damage. Id. at 1011. This Court concluded that
counsel did not make an informed decision to ignore such mitigation and instead
presented only insubstantial mitigation. In the present case, Stone testified that he
did review school records and records of past psychological testing, which records
- 36 -
were also given to Dr. Riordan to review; and counsel did meet with family
members and relied on information provided by them and by Hayward.
In Jones v. State, 998 So. 2d 573, 583 (Fla. 2008), we explained that where
available information indicates that the defendant could have mental health
problems, a mental evaluation is fundamental in defending against the death
penalty. In this case, available information did not indicate Hayward had any
mental health problems requiring additional investigation. The frontal lobe deficits
to which Dr. Hyde testified were based on his interpretation of several tests
administered to Hayward, but Dr. Riordan disputed that the results of those tests
indicated any frontal lobe damage. Trial counsel’s performance “is not rendered
incompetent merely because the defendant has now secured the testimony of a
more favorable mental health expert.” Asay v. State, 769 So. 2d 974, 986 (2000).
Nor does the presentation of additional mitigating evidence in the postconviction
proceeding necessarily establish ineffective assistance of counsel. Hodges v. State,
885 So. 2d 338, 347 (Fla. 2004). “The pertinent inquiry remains whether counsel’s
efforts fell outside the ‘broad range of reasonably competent performance under
prevailing professional standards.’ ” Id. We find, based on the evidence presented
at the evidentiary hearing, and evidence that was presented to the jury in the
penalty phase, that trial counsel were not deficient in investigating and presenting
- 37 -
mental mitigation or mitigation based on Hayward’s childhood and family
background.
Moreover, prejudice has not been established. Even if all the mitigation
presented at the evidentiary hearing were presented to a penalty phase jury, there is
no “reasonable probability that, absent the errors, the sentencer . . . would have
concluded that the balance of aggravating and mitigating circumstances did not
warrant death.” Strickland, 466 U.S. at 695; see also Foster, 132 So. 3d at 52. To
assess that probability, the Court considers “ ‘the totality of the available
mitigation evidence . . .’ and ‘reweigh[s] it against the evidence in aggravation.’ ”
Porter v. McCollum, 558 U.S. at 41 (quoting Williams, 529 U.S. at 397-98). The
totality of the mitigation in this case indicates that Hayward had a difficult
childhood, suffered severe discipline by his parents and sister, and violent
roughhousing by his brothers. The postconviction court was correct that the
penalty phase jury, and the court in the Spencer hearing, heard much of the
childhood mitigating evidence that was presented at the evidentiary hearing.
Dr. Hyde’s testimony of possible frontal lobe damage was subject to impeachment
by Dr. Riordan’s testimony and by the fact that Dr. Hyde did not refer Hayward for
in-depth psychological testing. The aggravation in this case was heavily weighted,
especially by the fact that one of the prior violent felonies was a murder. Thus, we
conclude that even if Hayward had carried his burden to show that trial counsel’s
- 38 -
decisions were not reasonable, strategic ones, prejudice has not been shown.
Accordingly, relief is denied on this claim.
B. Claim of Ineffective Assistance of Counsel at the Suppression Hearing
Hayward next contends that trial counsel was deficient in failing to obtain a
copy of the written policy of the Fort Pierce Police Department for transporting
persons in patrol cars, and if he had done so, he would have found that the written
policy only applied to prisoners, not to mere passengers. Hayward contends that
had counsel obtained the written policy on prisoner transport, he could have
effectively impeached Officer Darren Mace, an officer with the Fort Pierce Police
Department who testified at trial that there was a written policy governing
handcuffing of non-prisoners in patrol cars. Hayward further contends that if
counsel had secured a copy of the actual policy, he would have been able to obtain
a favorable ruling suppressing Hayward’s first statement and those that followed.
Hayward characterizes as “a lie” the testimony of Officer Mace that the policy
calling for handcuffing anyone transported in a patrol car was a written policy.
Hayward contends that the State failed to correct this false testimony, a violation
under Giglio v. United States, 405 U.S. 150 (1972), and failed to supply trial
counsel with the written policy at trial in order for defense counsel to use it to
impeach Officer Mace, a violation under Brady v. Maryland, 373 U.S. 83 (1963).
- 39 -
At the suppression hearing held before trial, the State presented Officer
Mace, who testified in pertinent part that while at Hayward’s rooming house, he
asked Hayward to step outside to discuss his hand wound. Officer Mace testified
that he did not handcuff Hayward at that time. Officer Mace testified he then
asked Hayward if he would come to the police station to discuss the hand wound,
which Hayward had described as a cut inflicted by Dorothy Smith, his girlfriend.
Hayward did not object to that request and was then handcuffed for the ride to
police headquarters. On cross-examination, Officer Mace testified at the
suppression hearing, “It’s policy that any time we transport anybody in our police
cars, that they’re secured or handcuffed” for officer safety. Mace also said that it
was “written in our POP, our policy from [the] police department. Anybody that
travels in our vehicle in the back seat will be secured.” Officer Mace said, “I
advised him, I said, sir, you’re not under arrest but for the purpose of and policy of
my department I have to secure you.” When asked, “If one reviewed that, that
would be in there?” Officer Mace answered, “Yes, sir.”
When Hayward was handcuffed in front of his body and, just before he got
into the police vehicle, Hayward said something to the effect that he was not going
to lie, that he was robbed the other day and he may have gotten shot. Officer Mace
conveyed this information to Officer Flaherty, who was in the rooming house with
Hayward’s girlfriend, Dorothy Smith, who then told Flaherty that Hayward had
- 40 -
knocked on her window in the early morning of February 1, 2005, and had a
gunshot wound to his hand.
Fort Pierce Police Captain Greg Kirk testified at the evidentiary hearing that
the police department had a written policy for prisoner transport but did not have a
written policy for transport of non-prisoners. That decision is left to the discretion
of the officer, but he agreed there is an unwritten policy regarding transport of non-
prisoners in the back seat of patrol cars. Captain Kirk trains Fort Pierce police
officers regarding transportation of people who are not under arrest and has done
so since 2004, and he was involved in the training class which Officer Mace
attended. Captain Kirk said the unwritten policy that is taught to the officers is that
if the officer believes there is a need to assure safety in the transportation of a
person, the person should be handcuffed and told that the procedure is for their
safety and officer safety, even if the person is volunteering to come to the police
station.
The postconviction court held:
Hayward presented no evidence rebutting the [Fort Pierce
Police Department] handcuff practice or the related officer training, or
proving that the State knew that the handcuff practice was unwritten.
And it is undisputed that Officer Mace told Hayward he was being
cuffed for officer safety and that he was not under arrest. Thus, the
court finds no exculpatory or impeaching evidence in the fact that
Officer Mace erroneously believed that there was a written handcuff
policy where there was a memorialized training practice; and finds
Officer Mace’s misstatement that there was a written policy harmless
beyond a reasonable doubt where the substance of the memorialized
- 41 -
training practice was conveyed to Hayward, so Hayward could not
have reasonably believed that he was being detained.
Under Brady, a violation occurs “when the government fails to disclose
evidence materially favorable to the accused.” Youngblood v. West Virginia, 547
U.S. 867, 869 (2006); see also Riechmann v. State, 966 So. 2d 298, 307 (Fla. 2007)
(citing Mordenti v. State, 894 So. 2d 161, 168 (Fla. 2004)). This obligation
extends to “impeachment evidence and to evidence ‘known only to police
investigators and not to the prosecutor.’ ” Youngblood, 547 U.S. at 869-70(quoting Kyles v. Whitley, 514 U.S. 419, 438 (1995)).
In order to demonstrate a Brady violation, the defendant has the burden to
show (1) that favorable evidence, either exculpatory or impeaching, (2) was
willfully or inadvertently 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); see also Way v. State, 760 So. 2d 903, 910 (Fla. 2000). In order to
meet the materiality prong of Brady, the defendant must demonstrate “ ‘a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.’ ” Youngblood, 547 U.S. at
870 (quoting Strickler, 527 U.S. at 280). “[A] showing of materiality does not
require demonstration by a preponderance that disclosure of the suppressed
evidence would have resulted ultimately in the defendant’s acquittal.” Id. at 870
(quoting Kyles, 514 U.S. at 434). A reasonable probability is a probability
- 42 -
sufficient to undermine confidence in the outcome. Way, 760 So. 2d at 913; see
also Strickler, 527 U.S. at 290. “[R]eversal of a conviction is required upon a
‘showing that the favorable evidence could reasonably be taken to put the whole
case in such a different light as to undermine confidence in the verdict.’ ”
Youngblood, 547 U.S. at 870 (quoting Kyles, 514 U.S. at 435).
A claim under Giglio alleges that a prosecutor knowingly presented false
testimony against the defendant. In order to demonstrate a Giglio violation, “a
defendant must show that: (1) the prosecutor presented or failed to correct false
testimony; (2) the prosecutor knew the testimony was false; and (3) the false
evidence was material.” Tompkins v. State, 994 So. 2d 1072, 1091 (Fla. 2008)
(citing Guzman v. State, 941 So. 2d 1045, 1050 (Fla. 2006)). Once the first two
prongs are established by the defendant, the false evidence is deemed material if
there is any reasonable possibility that it could have affected the jury’s verdict.
Tompkins, 994 So. 2d at 1091. The State then “has the burden to prove that the
false testimony was not material by demonstrating it was harmless beyond a
reasonable doubt.” Id. at 1092. The harmless error standard requires the State to
prove “that there is no reasonable possibility that the error contributed to the
conviction.” State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986)).
Giglio and Brady postconviction claims present mixed questions of law and
fact and, where the trial court has conducted an evidentiary hearing, this Court will
- 43 -
defer to the factual findings of the trial court that are supported by competent,
substantial evidence, but will review the application of the law to the facts de novo.
Lynch v. State, 2 So. 3d 47, 56 (Fla. 2008) (citing Sochor v. State, 883 So. 2d 766,
771-72 (Fla. 2004)); see also Lowe v. State, 2 So. 3d 21, 29 (Fla. 2008)
(“Generally, this Court’s standard of review following a denial of a postconviction
claim where the trial court has conducted an evidentiary hearing accords deference
to the trial court’s factual findings.” (citing McLin v. State, 827 So. 2d 948, 954
n.4 (Fla. 2002))). “ ‘[T]his Court will not substitute its judgment for that of the
trial court on questions of fact, likewise of the credibility of the witnesses as well
as the weight to be given to the evidence by the trial court.’ ” Id. at 30 (quoting
Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997)).
Simply because Officer Mace erroneously stated that the policy on
transporting persons in the patrol car was written does not prove that the falsity
was purposeful, or that the State knew that it was false or knew that there was a
written policy that contradicted Officer Mace’s testimony. Thus, no Giglio
violation was shown.
Under Brady, however, exculpatory or impeaching evidence that is
inadvertently suppressed by the State can be the basis for a finding of violation if
the evidence was material, thus causing prejudice to the defendant. In this case,
the State did not disclose that the written policy did not expressly extend to
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handcuffing non-prisoner passengers in the patrol car. Even so, Hayward failed to
demonstrate that had trial counsel been provided the written policy, and had it been
used to impeach Officer Mace, there is a reasonable probability—defined as one
sufficient to undermine this Court’s confidence in the outcome—that the
statements would have been suppressed after the hearing or that the jury at trial
would have found the statements involuntary. It cannot be said that if Officer
Mace had been confronted with, and impeached by, a copy of the written policy,
the whole case would have been viewed in such a different light that confidence in
the verdict would be undermined. It is likely that Office Mace would have simply
responded that he was in error concerning the terms of the written policy, but that
there was clearly an unwritten policy that he had been taught concerning
handcuffing of persons traveling in the back of a patrol car. As evidenced by the
testimony of Captain Kirk at the evidentiary hearing, the officers were taught to
use their discretion and to err on the side of safety whenever transporting persons
in the back of a patrol car.
Based on the foregoing, we conclude that no Giglio or Brady violations have
been established in regard to Officer Mace’s testimony at the suppression hearing
or trial. Even though the trial court granted an evidentiary hearing on the issue of
the written transport handcuffing policy only as it related to the Brady and Giglio
claims, Hayward now states the issue as primarily one of ineffective assistance of
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counsel and primarily argues it in that context. The postconviction court did
address this Strickland claim very briefly in denying relief as to the handcuffing
policy claim. After concluding that nothing impeaching or exculpatory arose from
Officer Mace’s erroneous testimony, the postconviction court also held that
Hayward had failed to carry his burden under Strickland.
Hayward contends on appeal that trial counsel was deficient in not obtaining
a copy of the Fort Pierce Police Department prisoner transport policy prior to the
suppression hearing. He contends that because Udell did not seek out a copy of a
written policy on handcuffing, “trial counsel was not able to impeach Mace’s
credibility after he lied to the court about the written policy.” Hayward points out
that a simple public records request would have resulted in disclosure of any
handcuffing policy at the police department, but that Udell made no such efforts.
Hayward also points out that trial cocounsel Jerome Stone testified at the
evidentiary hearing that if Officer Mace could be shown to be “flat out lying,” such
would adversely affect his credibility. Hayward contends Officer Mace’s “false
testimony was material” and Hayward was prejudiced, because it was after he was
handcuffed for the ride to the police station that Hayward made the incriminating
statement that he had been shot in the hand.
We disagree that ineffective assistance of counsel has been established.
Even if trial counsel should have sought out any written or unwritten handcuffing
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policy prior to the suppression hearing and trial, Hayward has failed to prove the
second prong of Strickland—prejudice. To establish prejudice, the defendant must
prove that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” White v. State, 964
So. 2d 1278, 1285 (Fla. 2007) (quoting Strickland, 466 U.S. at 694). Importantly,
that reasonable probability is evaluated and expressed in terms of “a probability
sufficient to undermine confidence in the outcome.” Id.Regardless of the existence or non-existence of a written policy concerning
transport of non-prisoners, and regardless of Officer Mace’s error in testimony, the
incriminating statement that Hayward gave after being handcuffed was
spontaneous and not the product of interrogation. Further, once at the police
station, and after Hayward was given Miranda warnings, Hayward made several
more incriminating statements to the police which did not involve Officer Mace.
Thus, Hayward has failed to prove both prongs required under Strickland, in that
the matters brought to light here do not undermine our confidence in the outcome
of either the suppression hearing or the jury trial.
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C. Summary Denial of Certain Postconviction Claims
1. Summary Denial of Claim that Trial Counsel was Ineffective in Failing to
Object to Prosecutorial Comment in Closing Argument
In penalty phase closing argument, the prosecutor used victim impact
evidence to discuss, and essentially compare, the life choices made by the victim
with the life choices made by Hayward. Trial counsel failed to object and a claim
of fundamental error was raised on direct appeal. This Court found the argument
to be erroneous, but not fundamental. Hayward contends that if counsel had timely
objected, the error would have been measured not by the fundamental error
standard but by the harmless error standard in which the burden would have been
on the State to prove it was harmless beyond a reasonable doubt. On direct appeal,
we stated:
During the penalty phase closing argument, the prosecutor
reminded the jury about how Destefano had worked toward his goal
of buying a Harley-Davidson, and then stated, in part, as follows:
One thing we learned about Danny was that Danny
set his sights on something and then worked towards that
. . . goal . . . . Because he had a goal in mind. And he
recognized that choices, you see, choices that he made in
his life will take him to his goal. Because in the end,
ladies and gentlemen, it all comes down to choices we
make. As human beings we have free will. We have the
ability to control our destiny. When you make a choice,
you may make a choice that is well [intentioned] and bad
things happen. And we recognize it that unfortunately
you may have to pay the consequences for that.
Sometimes you make decisions, good things happen, they
turn out the way you want.
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Sometimes you make decisions in your life for the
wrong reasons but knowing why. Steven Hayward did
just that. Steven Hayward sits at this table today not as a
result of anything anybody did to him, any of the
conditions in his life, but because of very simply he made
some choices. He exercised his free will and his free will
brings him here today and this places him in this
condition of life.
Hayward, 24 So. 3d at 40.
On direct appeal, we held that although the victim impact evidence itself was
proper, the prosecutor’s use of it to make the comparison was improper. Id. at 41.
We stated:
Having reviewed the improper prosecutorial comments in the context
of the entire closing argument and in light of the evidence presented in
the penalty phase, we conclude that the improper prosecutorial
comments in this case do not rise to the level of fundamental error.
Given the strength of the evidence against Hayward and the gravity of
the aggravators, we cannot say that the jury would not have
recommended a death sentence or that the trial court would not have
imposed a death sentence if the prosecutor had not made the improper
victim impact comparison.
Id. at 42. For these same reasons, we conclude that Hayward has not established
the second prong of Strickland.
Further, despite the prosecutor’s brief comparison of the choices Destefano
made in life and those made by Hayward, the prosecutor did not argue that
Destefano’s life was somehow more valuable than Hayward’s life. The comment
appears to have been aimed more at pointing out that it was no one’s fault but
Hayward’s—based on the choices he made in life—that he was sitting in court
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convicted of the crime of murder. The prosecutor’s comparison, when considered
in context, while improper, does not undermine the Court’s confidence in the
outcome of the penalty phase. In the sentencing order, the trial court found three
aggravators. The court found the prior violent felony conviction aggravator based
on a conviction for second-degree murder and two counts of armed robbery for
which the court assigned “extremely great weight.” The court also found that the
murder in this case was committed during a robbery, which aggravator was merged
with the pecuniary gain aggravator. This combined aggravator was given “great
weight.” The jury and the court were provided strong evidence of these
aggravators.
Therefore, we conclude that even if counsel had objected to the improper
comparison, there is no reasonable probability that the result of the proceeding
would have been different—a reasonable probability being one sufficient to
undermine confidence in the outcome. Strickland, 466 U.S. at 694. Thus, relief is
denied on this claim.
2. Summary Denial of Claim that Trial Counsel Provided Ineffective
Assistance in the Motion to Suppress by Failing to Argue Coercion
Hayward contends the postconviction court erred in denying a hearing on the
claim that trial counsel was deficient in failing to argue at the motion to suppress
hearing that the statements at the police station were coerced. Hayward contends
that he was told he was not under arrest but was shackled to the floor, that he did
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not understand the Miranda warnings, and did not fully waive his rights. Hayward
contends that he indicated he did not want to answer questions by asking numerous
times to make a telephone call, but his requests were denied. Hayward contends
that trial counsel was ineffective in failing to argue as grounds to suppress that he
was kept in the cold and in pain from his hand wound during the interrogation.
An evidentiary hearing was not required on this claim because all the facts
argued by Hayward appear in the transcript of the trial wherein the State
introduced Hayward’s statement made at the police station by way of a videotape
with accompanying transcript. At the outset of the videotape, when asked how he
was doing, Hayward stated that he was cold. Detective Flaherty responded, “Cold.
All right. We’ll see if we can get you something. Get this stuff out of the way.”
Although the record does not show if anything was done about Hayward being
cold, he did not complain about it again. Detective Flaherty also stated, “Before
we talk about that [the hand injury] we got to do the Miranda.” Detective Coleman
then read Hayward his Miranda warnings and, when asked if he understands his
rights, Hayward answered, “Yeah.” When asked if he was willing to answer some
questions, Hayward’s answer is recorded by the court reporter as “inaudible.”
Detective Flaherty then tells Hayward, “Just sign right here.”11
11. Much later in the interview, Hayward says he did not do anything
wrong, and if he had, he would not have signed “that paper” and would not be
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Also at the outset of the interview, Detective Flaherty said, “Just go ahead
and tell us what happened, when it happened and where it happened and go from
there.” Hayward then proceeded to tell the detectives that he was at a building on
17th Street and was robbed by two men, and when Hayward grabbed for the gun, it
went off and he was shot in the hand. Hayward’s answer, and his description of
the event and what happened when he returned to the rooming house, continued for
a fairly lengthy period of time. At one point, the detective asked Hayward if he
wanted to go to the hospital for his hand injury, but Hayward declined.
Later, when Hayward said he was in pain, and his bandage had come off, the
officers said they would get some tape to put on a fresh bandage and left the room.
Some minutes later Hayward asked, for the first time, to make a telephone call to
his mother and was told, “Let’s get through this first.” Hayward then said, “I been
here for over two hour[s]” . . . I need to . . . talk to somebody.” He repeated that
he needed to talk to his “mama.” Again, Hayward was told, “[T]ell us from the
beginning so we can get through this.” Hayward then said again that he wanted to
talk to his “mama” but when the officer asked if he wanted to talk to his “mom,”
Hayward said, “I ain’t calling my mom. I want to call somebody else.” The
sitting there talking to the police. This confirms that Hayward understood the
content and import of the Miranda waiver and that he signed it.
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detective responded, “I want to hear your story first though and then we’ll do that.”
Hayward never said he wanted to call an attorney.
Hayward then reiterated the statement he gave earlier about a Mexican man
and a black man robbing him, and that when he fought for the gun, it went off and
he was shot in the hand. He repeated his statement that he ran back to the rooming
house and told his girlfriend he had been shot, and that he refused to go to the
hospital for treatment. When asked about the man in the car who was shot,
Hayward strenuously denied shooting the “paper boy” in the car, referring to
Destefano, whose murder Hayward said he had heard about.
After being confronted with the fact that several witnesses had given
statements that conflicted with the story told by Hayward, and after discussing for
a period of time about whether Hayward shot Destefano, Hayward said, “I need a
pain pill, man, or something, man.” The detective responded, “Hey, don’t worry.
We’ll take care of you. . . . Get this off your shoulders, man.” There was no later
discussion about pain.
Hayward changed his statement, again, this time to say that he saw a man
rob and shoot Destefano. He said the man and Destefano were fighting, that there
was another man involved, and that when both men ran away, one dropped a gun.
Hayward said when he reached to pick up the gun, it fell and he was shot in the
hand. Hayward said he took the gun with him and later sold it for $50. He also
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admitted to going through Destefano’s car and said that would account for any of
his blood the officers suggested would be found there. When Detective Coleman
told Hayward his story was not believable and was not in accord with what two
witnesses told them, Hayward reiterated that he went into the car but did not shoot
Destefano. The videotape statement was concluded.
There is no dispute that Hayward was read his Miranda rights and agreed to
waive them. He even referred to having signed the waiver. The fact that he was
cold or in pain did not interfere with the different self-serving versions of the
incident that he gave the detectives. He never asked to call an attorney and never
asked to cease the interrogation. Hayward has provided no authority holding that
an interrogation must cease if an adult suspect asks to telephone his mother or
some unspecified “somebody.” Nothing that transpired in the interrogation
supports the conclusion that Hayward did not know and waive his Miranda rights
or that he was coerced in any way during the interrogation.
Even if trial counsel had argued coercion or lack of understanding of the
Miranda rights or waiver, there is no reasonable probability—measured in terms of
whether our confidence in the outcome of the guilt phase of trial is undermined—
that the statements would have been suppressed or that a verdict of not guilty
would have been entered.
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3. Summary Denial of Claim that Trial Counsel Provided
Ineffective Assistance in the Guilt Phase by Not Vigorously
Challenging the State’s Witnesses
Hayward contends that trial counsel was deficient in failing to vigorously
advocate for him by not effectively challenging the State’s witnesses during the
guilt phase by cross-examination or motion to disqualify. Hayward also contends
that an evidentiary hearing should have been granted. Although he broadly states
“numerous witnesses” were not challenged, Hayward focuses only on two—
Roosevelt McDowell and Dorothy Smith.
Roosevelt McDowell
Hayward focuses first on the testimony of Roosevelt McDowell, who gave
several statements to police and who testified during the guilt phase. Hayward
contends that McDowell’s statements were conflicting, in that he told police
variously that the suspect was a black male wearing dark clothing and some type of
ski mask or cap, that he had dreadlocks with nothing on his head, that McDowell
did not see any stocking cap, and that the suspect was wearing a hat. Hayward
contends McDowell’s pretrial statement and his trial testimony also conflicted as to
whether he saw the suspect with a gun, and whether he was awake when he heard
gunshots or whether the gunshots woke him up.
Hayward contends that these conflicts in McDowell’s testimony demonstrate
that he was “infirm” when the State presented his testimony, which is confirmed
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by McDowell advising trial counsel that he had cancer and other ailments and was
taking medication for high blood pressure. Hayward contends that “his
inconsistent testimony and his inability to recall even the most basic details of the
events he purportedly witnessed put counsel on notice that he should be
disqualified as a witness because he lacked capacity to accurately observe, recall
and narrate facts.”
The State counters that these discrepancies do not support disqualification
but only go to the weight to be assigned by the trier of fact. The State points out
that Hayward failed to plead facts calling into question McDowell’s ability to
observe or his capacity to understand the oath, and failed to allege that McDowell
did not personally observe the facts he reported. The State also contends that trial
counsel brought out these conflicts in testimony on cross-examination, and that
trial counsel was not deficient for failing to move to disqualify McDowell because
he had no legal grounds to do so. The postconviction court summarily denied
relief on this claim, finding it legally insufficient for failing to allege facts
demonstrating that McDowell was incompetent or that there was any other legal
basis for disqualifying McDowell. The postconviction court did not err in denying
an evidentiary hearing and in denying relief on this claim concerning witness
McDowell.
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Regarding the summary denial of trial counsel’s failure to challenge the
capacity of Roosevelt McDowell to testify, the postconviction court was correct
that the facts alleged in the motion were legally insufficient upon which to base a
claim that trial counsel was deficient in failing to move to disqualify McDowell.
The claim filed by Hayward in his amended postconviction motion alleged that
McDowell’s various versions of events demonstrated his inability to recall basic
details, which Hayward argues is sufficient for counsel to have been obligated to
move to disqualify him as a witness. This Court has held that a witness is
incompetent to testify if the witness is unable to communicate to the jury, unable to
understand the duty to tell the truth, or is unable to perceive and remember events.
Rutherford v. Moore, 774 So. 2d 637, 646 (Fla. 2000). Section 90.603, Florida
Statutes (2007), provides that a person is disqualified as a witness if the person is
incapable of expressing himself or herself concerning the matter or is incapable of
understanding the duty to tell the truth. Section 90.604, Florida Statutes (2007),
provides that a witness may not testify to a matter unless evidence is introduced
sufficient to support a finding that the witness has personal knowledge of the
matter. Had the motion to disqualify McDowell been made at trial, the court
would have had broad discretion in ruling as to his competence to testify. See,
e.g., Baker v. State, 674 So. 2d 199, 200 (Fla. 1996).
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The fact that the witness gave differing versions of events is not necessarily
attributable to an inability to remember. Thus, Hayward’s claim was legally
insufficient in this regard as it was founded on speculation. Moreover, Hayward
did not allege that the witness could not communicate, that he did not understand
the oath to tell the truth, or that he was not an eyewitness to the incident.
The record shows that trial counsel cross-examined McDowell extensively
concerning his differing versions of the event. McDowell, age 62, testified that at
approximately 4:30 a.m. on the morning of the murder, he was on the way to the
bathroom when he heard someone “hollering,” “I don’t have no more, I don’t have
no more.” He testified he then heard two “small” shots and then a “big shot.” He
first testified that there were ten to fifteen minutes between the shots, then he
immediately changed that to say the big shot occurred right after the small shots.
He testified that after the shots were over, he opened the door and looked out from
his ground floor apartment. He saw a car by the convenience store with the car’s
trunk and driver’s side door open.
McDowell testified he saw two people, one who looked like a “Mexican”
male on the ground on one knee. The other person, a black male, was standing up.
McDowell testified that the man standing had dreadlocks on his head and nothing
else. McDowell later testified on redirect that the man had something over his
face. McDowell testified that the black male had searched the car then “went to
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the light to hold his hand,” referring to looking at his hand under a street light.
McDowell further testified that the victim left the scene limping and holding his
side, while the black male remained by the light looking at his hand. He said the
man wrapped his hand and left the scene, going behind McDowell’s building.
On cross-examination by trial counsel Jerome Stone, McDowell said he
never saw a gun in the black man’s hand. McDowell again testified he did not see
anyone wearing a stocking cap over his face, although on redirect he said there was
something over the black male’s face. McDowell also agreed on cross-
examination that there could have been other people on the scene that he did not
see. McDowell admitted that during deposition he testified the black male roughed
up the victim, but at trial he testified that he saw no roughing up. Even though the
postconviction court denied a hearing on the claim concerning McDowell, trial
counsel Stone testified at the evidentiary hearing that he was selective in cross-
examining McDowell because he was an older gentleman in poor health and
counsel did not want to appear to be beating up on him in front of the jury.
McDowell’s prior inconsistent statements did not establish that he could not
remember the incident, but only that he did experience some confusion about
certain details. Much of his testimony concerning the event was confirmed by
other evidence, including that the victim left the scene, that the assailant had
something wrong with his hand, that the assailant went into the car where
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Hayward’s blood was found, and that the assailant left and went behind the
apartment building, again where Hayward’s blood was found on a post. Some of
McDowell’s apparent confusion was pointed out to the jury and would have been a
matter for them to consider in deciding what weight to give to this witness’s
testimony. Other conflicts in testimony, concerning whether the assailant wore a
hat or face covering, were apparent in the witness’s testimony, and again would
have been a matter for the jury to weigh in determining credibility. In closing
argument in the guilt phase, trial counsel argued that McDowell was in poor health,
and counsel pointed out the inconsistency in McDowell’s testimony concerning
whether the assailant roughed up Destefano and whether McDowell saw a hood or
a mask on the assailant.
Relief is denied on this claim. Hayward did not allege grounds to disqualify
McDowell and, even if such grounds did exist, our confidence in the guilty verdict
is not undermined by trial counsel’s failure to move to disqualify McDowell as a
witness or to more effectively cross-examine him at trial.
Dorothy Smith
Hayward also claims on appeal that the postconviction court erred in
summarily denying his claim that trial counsel was deficient in failing to challenge
the testimony of Dorothy Smith. He contends that it was not brought out before
the jury that she had a history of schizophrenia for which she had been hospitalized
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and was taking medication, all of which affected her ability to recall and narrate
facts and left her susceptible to police coercion. He argues that trial counsel’s
cross-examination was brief and inadequate, and failed to disclose that she had a
felony record.
The postconviction court denied the claim, finding it legally insufficient
because the motion failed to allege specific facts in relevant time frames, and did
not demonstrate prejudice. The amended postconviction motion alleged that Smith
had a history of mental illness that affected her ability to recall and narrate facts,
and left her susceptible to police coercion. It also alleged that trial counsel failed
to elicit from her on cross-examination the fact that she suffers from mental illness
and had previously been hospitalized for a mental illness. The motion alleged trial
counsel was aware of her mental health history and her prior arrests, and that she
had been coerced into changing her story in Hayward’s case by police. The motion
also alleged that trial counsel knew that Smith had lied to police about Hayward’s
whereabouts on the night of the crime but failed to cross-examine her on that fact.
The State counters that Hayward failed to explain how counsel was deficient
or how the result of the trial would have been different, and argues that his
conclusory allegations are insufficient. The State is correct that even without
Smith’s testimony, other eyewitness testimony and forensic evidence, along with
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Hayward’s own statements, established that Hayward killed Destefano during an
armed robbery.
During the State’s presentation of Dorothy Smith’s testimony at trial, she
reiterated that Hayward came to her window at the rooming house in the early
morning hours of February 1, 2005. She said she let him in and he told her he was
robbed by two men and had been shot in the hand. When she heard news about the
murder, she asked him about it and he told her he did not do it. This testimony was
in accord with one of the versions that Hayward told police. During his interview,
he told detectives that he ran to the rooming house and knocked on the window
because he did not have his key. Hayward also told detectives that he had not been
stabbed in the hand, but had been shot in the robbery attempt by two men when he
attempted to take their gun away. Smith also testified that the day after this
occurred, Hayward sold a silver gun. This testimony was in accord with
Hayward’s statement to detectives that he took the silver gun with which he was
shot in the hand and later sold it for $50. On cross-examination, trial counsel did
bring out the fact that Dorothy Smith was a convicted felon.
Smith’s testimony was not particularly harmful, in that it simply repeated
some of the same things that Hayward told police, although he admitted when he
testified that the claim he was robbed by two men was a lie. Cross-examining
Smith to bring out the fact that she had mental health problems or was on
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medication that affected her memory would not have changed the fact that
Hayward told the police that he knocked on her window to be let in and that he told
her he had been shot in a robbery attempt, just as Hayward told police. Nor would
it have changed the fact that Hayward told detectives that he took the gun and sold
it. Thus, even if trial counsel was deficient in making only a cursory cross-
examination of Smith, Hayward has failed to demonstrate prejudice. For these
reasons, we conclude that denial of the claim regarding Smith was proper.
D. Whether Errors Occurred that Denied Hayward a
Fair Postconviction Proceeding
1. Motion to Disqualify Office of State Attorney
Hayward claims that several rulings of the circuit court deprived him of a
full and fair hearing. The evidentiary hearing in this case was held on February 27,
2012, through March 1, 2012, and was concluded on March 28, 2012. On
March 15, 2010, several years prior to the evidentiary hearing, Hayward filed a
motion to disqualify the Office of the State Attorney for the Nineteenth Judicial
Circuit, alleging that the office had violated Hayward’s right to attorney-client
privilege. The motion alleged that trial counsel had turned over trial files to the
Office of the State Attorney. This fact was learned in a March 2, 2010, e-mail
from Assistant State Attorney Ryan Butler confirming that his office had received
one banker’s box of trial files from Udell and that Butler would “submit it to the
Records Repository.” On that same date, postconviction counsel replied to Butler
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that he was extremely concerned that trial counsel had provided privileged and
confidential files to the State without Hayward’s knowledge or consent and further
demanded that the box of files not be sent to the records repository but be sent
instead to successor counsel. The motion to disqualify further alleged that as of
March 15, 2010, Capital Collateral Regional Counsel (CCRC) had not received the
box of files.
Because the State Attorney’s office was in possession of the files for several
weeks and thus had the opportunity to review, copy, disseminate, or alter the files,
Hayward alleged that the office must be disqualified. On March 16, 2010,
Assistant State Attorney Butler filed a notice with the court that the “sealed files of
petitioner’s trial counsel, Robert Udell, have been filed with the court.” On March
19, 2010, Hayward’s postconviction counsel filed an emergency motion for release
of the trial files to postconviction counsel. At a status conference on March 31,
2010, the postconviction judge noted that the box of trial files was in his office.
When asked how that came about, Jerome Stone stated that he and Udell had
spoken by telephone and Udell advised that since he was disbarred12 and had shut
down his practice, he was not able to store the file. Stone said Udell delivered the
box to Stone’s office and, because Udell told him it should go to the State
12. Robert Udell was disbarred for matters unrelated to this case.
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Attorney’s office, Stone gave the unsealed box to Ed Arens, a State Attorney
investigator.
Assistant State Attorney Butler was questioned by the court under oath and
stated that he contacted Udell after he heard Udell had been disbarred and asked if
Udell had a place to store the file, to which Udell answered that he did. Butler
testified that several weeks later, Udell called him and said he was requested by
CCRC to provide a copy of Hayward’s file and that Udell did not have the funds to
make the copy. Butler said that he knew that “under the case law we were going to
get the file anyway,” referring to what he thought would likely occur after a 3.851
motion alleging ineffective assistance of counsel was filed, so he agreed to copy
the files, keep a copy, and give the files to CCRC. Butler said he received the box
and when, several weeks later postconviction counsel objected, Butler sealed the
box with tape. He testified that he did not look in the box and believed no one else
in the State Attorney’s office did either. At that hearing, the court returned the
files to trial counsel Jerome Stone, to comply with Florida Rule of Criminal
Procedure 3.851(c)(4).
On April 1, 2010, the circuit court entered an order finding that “disbarred
attorney Robert Udell’s original trial files were improperly released to the Office
of the State Attorney” and that they should have been delivered to new counsel at
CCRC. Although the court also found that no evidence was presented
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demonstrating that the integrity or confidentiality of the files had been
compromised, the order allowed additional time for Stone to review the files with
Udell to determine if the integrity or confidentiality of the files had been
compromised. The court reserved ruling on the motion to disqualify the Office of
the State Attorney until after CCRC completed discovery concerning who had
access to the files after they were picked up from Stone’s office and before the box
was sealed by Assistant State Attorney Butler. Pursuant to the order, Udell filed a
sworn affidavit on April 13, 2010, stating that he had received the original trial file
and met with Jerome Stone to review it, and “[b]ased upon this review I have
determined there to be no compromise with the integrity or confidentiality of the
file.”
Postconviction counsel conducted depositions pursuant to the April 1, 2010,
order and, on August 9, 2010, filed a memorandum concerning the motion to
disqualify. The State also filed its memorandum and a hearing was held on
October 11, 2010, on the motion to disqualify at which the circuit court noted that
postconviction counsel would be required to show actual prejudice in order to
prevail on the motion to disqualify. Postconviction counsel conceded that “I have
to take the State’s representation that no one inspected the files and that there was
no privileged material that they’re aware of that they have learned of.” However,
counsel argued that because this is a death penalty proceeding, the circumstances
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surrounding the transfer of the files prejudices Hayward in his reliance on the
integrity of the process. When asked if he had any evidence of actual prejudice,
counsel had to concede that he did not.
In his ruling, the judge stated that he had reviewed all the depositions taken
by postconviction counsel, which included depositions of Thomas Bakkedahl,
Chief Assistant State Attorney and Hayward’s trial prosecutor; Carla Porter,
Executive Secretary to several attorneys in the State Attorney’s office; Jeff
Hamrick, State Attorney Investigator; Edward Arens, State Attorney investigator;
Christopher Taylor, Assistant State Attorney and Hayward’s trial prosecutor;
Robert Udell; and Ryan Butler, Assistant State Attorney in the postconviction
proceeding. The court held that, although the disposition of the file was improper,
postconviction counsel was unable to identify any actual prejudice that resulted
from the disposition of Udell’s trial file in the case. The court further found that
nothing in any of the depositions suggested that the file was viewed by anyone in
the State Attorney’s office, and that the box sat untouched in Butler’s office until it
was taken to the judge’s office. Thus, the motion to disqualify the Office of the
State Attorney was denied.
Hayward now contends that the trial court erred in denying his motion to
disqualify the office of the State Attorney and, as an additional ground for the
motion to disqualify, Hayward points out that Udell was given a contribution of
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between $300 and $500 from various attorneys, including some in the Office of the
State Attorney, from the time that he was disbarred up to the time he turned the
files over to that office. Chief Assistant State Attorney Bakkedahl confirmed in his
deposition that he and other personnel at that office made contributions after Udell
was disbarred and was in trouble financially. Hayward contends that “the fact that
State [Attorneys] gave money to a potential witness is a significant conflict of
interest” and that the “relationship alone jeopardized Hayward’s right to fair
postconviction proceedings, warranting the State Attorney’s disqualification.” The
State counters that the donations were anonymous in the form of Publix gift cards
when Udell was in financial difficulty following his disbarment.
The circuit court did not err in denying the motion to disqualify the Office of
the State Attorney. Denial of a motion to disqualify a State Attorney’s office is
reviewed for abuse of discretion. Rogers v. State, 783 So. 2d 980, 991 (Fla. 2001).
We explained in Rogers that “although we have stated that the appearance of
impropriety created by certain situations may demand disqualification, we have
evaluated such situations on a case-by-case basis.” Id. (quoting Bogle v. State, 655
So. 2d 1103, 1106 (Fla. 1995)). We held in Downs v. Moore, 801 So. 2d 906 (Fla.
2001), that “[t]o disqualify the State Attorney’s Office, a defendant must show
substantial misconduct or ‘actual prejudice.’ ” Id. at 914. “Actual prejudice” is
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more than the mere appearance of impropriety. Id.; see also Kearse v. State, 770
So. 2d 1119, 1129 (Fla. 2000).
In this case, the circuit court recognized the impropriety of the transfer of the
trial file to the Office of the State Attorney. However, the circuit court correctly
found that no evidence was presented that anyone at the State Attorney’s office
viewed any portion of the files. To the extent that the transfer simply provides an
“appearance of impropriety,” this does not rise to the level necessary to require
disqualification. The postconviction court did not specifically address the added
factor that some personnel at the State Attorney’s office donated funds toward the
gift card for Udell, who was struggling financially after his disbarment, but
Hayward has failed to provide any proof that the anonymous donations influenced
Udell’s testimony or prejudiced Hayward in any way. Moreover, the record shows
that Assistant State Attorney Butler, who handled the postconviction proceeding in
this case, did not donate any of those funds. Thus, Hayward’s claim that this
additional factor provides a basis for disqualification of the State Attorney’s office
lacks merit and relief is denied on this claim.
2. Claim that a Full and Fair Evidentiary Hearing was Denied by Denial of
Right to Call Mitigation Witness Samuel Peaks
Hayward contends that his inability to call proposed mitigation witness
Samuel Peaks deprived him of a full and fair evidentiary hearing. Peaks was
incarcerated at FCI Coleman, a federal correctional institution, at the time that a
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Writ of Habeas Corpus Ad Testificandum was issued by the circuit court for Peaks
to testify. Hayward contends the Federal Bureau of Prisons was not cooperative
and would not provide Peaks to testify. Because Peaks could not appear in person
to testify, postconviction counsel wanted to perpetuate Peaks’ testimony by
deposition, but the circuit court insisted that such was not authorized by Florida
Rule of Criminal Procedure 3.190 until Hayward could show that Peaks was
otherwise unavailable. Hayward states in his brief that eventually “counsel was
informed by FCI Coleman that there’s no way Peaks’ perpetuated testimony was
going to happen.” Hayward argues that “[t]he warden’s arbitrary denial, without a
reason or explanation, resulted in a denial of due process.” He does not allege any
error on the part of the circuit court.13
Rule 3.190(i)(6) provides in pertinent part that perpetuation of testimony by
deposition is allowed only if the attendance of the witness cannot be procured. The
circuit court was informed that the reason the prison denied access to Peaks was
because it was a security risk for Peaks to appear and because he was a behavior
management problem. The State and the circuit court both took the position that if
13. As noted, Hayward is not contending that the circuit court erred in any
respect in denying his request to perpetuate testimony under rule 3.190, nor would
such a claim have merit. This Court has held that rule 3.190 applies to trials, not
postconviction proceedings where discovery is limited, and that a motion to
perpetuate testimony lies within the discretion of the trial court. See, e.g., Hurst,
18 So. 3d at 1007 (citing Riechmann v. State, 966 So. 2d 298, 310 (Fla. 2000)).
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Peaks could testify by video, he was not unavailable under the rule, and thus
perpetuation was improper.
Hayward failed to establish that he was denied due process in his inability to
secure the testimony of Samuel Peaks. First, postconviction counsel repeatedly
advised the court that he would not present Peaks’ testimony by videoconference
because he believed that method was not in the best interest of his client.
Postconviction counsel argued to the circuit court that Peaks, who was the cousin
who came to live in Hayward’s household, could testify to “evidence of the family
and the effect of his coming to the family later on in life, as well as - - as an infant”
and that he had “a unique perspective on the situation in Mr. Hayward’s family
when he was growing up.” The postconviction court advised counsel that, based
on the amended postconviction motion, Hayward could present the same evidence
through his mother or by Hayward himself.
Somewhat later in the evidentiary hearing, which lasted several days,
postconviction counsel again told the court he would not present Peaks by
videoconference, but wanted to perpetuate testimony by deposition, to which the
court responded, “but you have to show he’s unavailable before you can; it’s not a
matter of choice.” When the court pointed out that it did not appear postconviction
counsel had attempted to secure the testimony by videoconference, counsel
responded, “I’m not sure I can ask a federal prison to make accommodations for
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me to do something that I have no intention of doing.” The court then advised
counsel, “[Y]ou’re still unilaterally pursuing a method to get his testimony before
me in a fashion that is not permitted by the rules until he’s found to be
unavailable.” The next day, counsel advised the court that there was nothing
further he could do concerning the request to call Peaks to testify because “I’m not
going to be able to call him the way that I feel that I should be able to call him.”
Counsel again told the court that even if the prison allowed Peaks to testify by
video, counsel had no intention to present him in that fashion. Again, the court
urged counsel to pursue any avenues with the prison to obtain Peaks’ testimony.
And, later in the same hearing, the court advised counsel that he could present
Peaks’ testimony by video if he so chose, although the court understood that
counsel had said in good faith that he did not want to do that.
Hayward claims he was denied due process, and received less than a full and
fair hearing, because the warden would not allow Peaks to appear and testify.
However, the testimony that counsel contended he would present through Peaks
could have been presented by either of Hayward’s older sisters or by his mother,
who were in a better position to know the effect on Hayward caused by an infant
coming into the home. In fact, Hayward’s sister, Debra Fleury, testified at the
evidentiary hearing that Samuel Peaks came to live with them when he was a baby
and Hayward was only several years older. She said this affected Hayward
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because he was not the center of attention anymore and “needed to move out of the
way so Sam could be cuddled.” Hayward “could not be the baby anymore.”
Regardless of what testimony Peaks could have provided, the circumstances
of Hayward’s inability to present Peaks’ testimony, either in person or by
deposition rather than by video, do not establish that he was denied due process or
a fair hearing because the federal prison refused to honor the subpoena in the case.
Moreover, he has not provided any basis on which the Court can conclude that he
was entitled to present Peaks’ testimony by way of perpetuated deposition
testimony, which is the only way in which he was willing to present this witness
regardless of the possibility of presenting his testimony by videoconference. It was
by choice that counsel did not seek to present Peaks’ testimony by
videoconference, and thus counsel failed to show the witness was unavailable
under rule 3.190. Accordingly, relief is denied on this claim.
3. Claim that Hayward Did Not Receive a Full and Fair Evidentiary Hearing
Because the Circuit Court Refused to Consider Certain Mitigation Evidence
The postconviction court excluded certain testimony by Hayward’s mother,
Barbara Johnson, concerning her childhood with foster parents Daisy and
Lawrence Green in South Carolina, and how she met her first husband, Harold
Hayward. As explained above, the testimony was proffered that Barbara’s mother
placed her and her brother with “foster parents” Daisy and Lawrence Green, where
she was beaten regularly, made to quit school in eighth grade, and forced to work
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in the fields picking crops. Hayward attempted to present his mother’s testimony
about how she was sent to New York where she became pregnant, and how she
returned to the Greens where she had the baby she named Derrick. Barbara was
made to marry Harold Hayward and they moved away.
The circuit court also excluded some of the mitigation testimony of Derrick
Green, Hayward’s half-brother. Green was not allowed to testify about the abuse
he suffered in South Carolina at the hands of the Greens, and on proffer, he
testified that he regularly received beatings from them with a switch or other object
from the age of five to eleven when his mother came to get him. When he was
eleven, his mother, Harold Hayward, and Tony Johnson took him away from the
Greens after his cousin called to report the abuse he was receiving there.
Some of the testimony of Cecilia Alfonso, a mitigation specialist who
attempted to testify about the cycle of violence in the Hayward family that began
with abuse of his mother, was also excluded. As with the testimony of Hayward’s
mother and brother, the circuit court held this evidence was not relevant. Alfonso
also testified on proffer that the mother’s childhood experiences were relevant
mitigation for Hayward because it showed she raised her children in an abusive
manner just like her foster parents raised her, and as a consequence, that type of
violence was internalized by Hayward, and his ability to develop a sound decision-
making process was adversely affected.
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Hayward contends on appeal that evidence of his family history showing a
cycle of inter-generational violence was relevant because it shows what influences
shaped and contributed to the development of the defendant. Hayward also cites
the commentary to ABA Guidelines for the Appointment and Performance of
Defense Counsel in Death Penalty Cases 10.7 (rev. ed. Feb. 2003), which states
that “[a] multi-generational investigation frequently discloses significant patterns
of family dysfunction and may help establish or strengthen a diagnosis or
underscore the hereditary nature of a particular impairment.” The State contends
that the evidence was properly excluded because it went more to the character of
the testifying witnesses than to Hayward’s character, citing our decision in Hill v.
State, 515 So. 2d 176 (Fla. 1987). In Hill, we held that the trial court did not abuse
its discretion in excluding testimony that Hill’s mother cared for his cousins as
well as her own children and testimony about the ill health and job responsibilities
of Hill’s father. We explained, “In our view, the excluded evidence focused
substantially more on the witness’s character than on appellant’s.” Id. at 178. In
the present case, just as in Hill, the excluded evidence focused substantially more
on the witnesses’ experiences that shaped their character before Hayward was
even born.
Hayward is correct that the commentary to ABA Guideline 10.7 states, “A
multi-generational investigation frequently discloses significant patterns of family
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dysfunction and may help establish or strengthen a diagnosis or underscore the
hereditary nature of a particular impairment.” However, this commentary provides
no blanket rule or constitutional requirement concerning testimony of abuse
suffered in the childhood of a defendant’s parents or siblings when that abuse
occurs somewhere other than in the home of the defendant. Moreover, the ABA
Guidelines are not mandatory, but are only guides. See, e.g., Strickland, 466 U.S.
at 688.
The admission of evidence is within the sound discretion of the trial court,
constrained by the application of the rules of evidence and the principles of stare
decisis. Davis v. State, 121 So. 3d 462, 481 (Fla. 2013). The circuit court did not
abuse its discretion in excluding the testimony of what occurred in the Green
household in South Carolina when Barbara Johnson lived there and when her son,
Derrick Green, was left there as a child. Ample evidence was presented that
Barbara Johnson and Hayward’s father disciplined him frequently with belts,
switches, hands, and other items, and did so harshly. Evidence was admitted that
his mother and his sisters believed that was normal discipline at the time.
Evidence that Barbara Johnson and Derrick Green were abused by the foster
parents in South Carolina does not add substantially to the mitigating nature of
what Hayward went through as a child and young teen.
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For these same reasons, even if the circuit court abused its discretion in
excluding this testimony from Johnson, Green, and Alfonso, such error was
harmless beyond a reasonable doubt. To the extent that it was intended to support
evidence that Hayward’s mother beat him and thought that was proper discipline,
similar evidence was presented through other witnesses including Johnson herself.
Accordingly, the circuit court did not err in excluding this proffered evidence.14
4. Claim that a Full and Fair Evidentiary Hearing was Denied by the Court
Prohibiting Questioning of Trial Counsel Udell about Communications from
Assistant State Attorney Ryan Butler Prior to the Evidentiary Hearing
During the cross-examination of trial counsel Udell, postconviction counsel
noted that Udell had some documents before him while testifying. On redirect-
examination, postconviction counsel asked Udell what the documents were and
Udell replied he had a newspaper, a court opinion, and a facsimile copy of
14. In the order denying postconviction relief, the court ultimately rejected
all of the testimony of Alfonso, and stated, “In analysis of this claim the court finds
Alfonso’s testimony not credible because at the evidentiary hearing she first
testified to details of family abuse that she failed to reveal in her deposition despite
specific inquiry, she offered no explanation for her failure to disclose information
at deposition, she refused to admit her advocacy for the defense but later recanted,
and she inserted her irrelevant opinions and had to be cautioned by the court.
Consequently, for this claim the court does not rely upon Alfonso’s testimony.”
We have explained many times that this Court will not substitute its judgment for
that of the trial court on questions of credibility of the witnesses and the weight to
be given the evidence. See, e.g., Blanco v. State, 702 So. 2d 1250, 1252 (Fla.
1997).
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documents that he had recently received from Assistant State Attorney Ryan
Butler. When asked, Udell said the fax was a copy of his own trial invoices. Udell
also said that he received a letter from the Assistant State Attorney. When
postconviction counsel asked Udell, “And, what did the letter say?” the prosecutor
objected that the letter was work product. After an in camera review, the circuit
court ruled that the six-page, February 10, 2012, letter authored by Assistant State
Attorney Butler and addressed to Jerome Stone, but provided to Robert Udell, was
work product containing the attorney’s mental impressions and opinions, and
theories of the case, and for that reason was not subject to review or testimony.
In Evans v. State, 995 So. 2d 933 (Fla. 2008), concerning a similar letter, we
stated:
In his first issue on appeal, Evans asserts that his due process
rights were violated when the trial court denied his motion for public
records. Specifically, Evans sought the disclosure of a letter from
Assistant State Attorney Lawrence Mirman sent to Diamond Litty and
Mark Harllee, defense counsel from Evans’ trial, which purportedly
contained responses to areas of questioning to be asked by
postconviction counsel at the evidentiary hearing. Based on our
decision in Kearse v. State, 969 So. 2d 976 (Fla. 2007), we affirm the
trial court’s denial.
In Kearse, the assistant state attorney sent the defendant’s trial
counsel, who was listed as both a State and defense witness at the
evidentiary hearing, a letter in anticipation of the attorney’s testimony.
The letter contained the state attorney’s “mental impressions” about
the case and about the ineffective assistance claims that were raised in
Kearse’s postconviction motion. Id. at 988-89. The trial court
conducted an in-camera examination and ruled that, given the nature
of the letter and the fact that counsel was listed as a witness for both
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parties, the letter was attorney work product exempt from disclosure.
See id. at 988. We held that the letter “clearly fits within the
exemption of attorney work product prepared with regard to the
ongoing postconviction proceedings” and affirmed the trial court’s
decision. Id. at 989.
Contrary to Evans’ contention that the letter went beyond mere
witness preparation, the State is correct that the letter contains nothing
more than the state attorney’s impressions of the pending litigation.
As in Kearse, the letter here was written by an agency attorney,
contained his mental impressions about the claims raised in the
postconviction motion, and was produced exclusively for the pending
evidentiary hearing as contemplated in section 119.071(1)(d)1,
Florida Statutes (2007). 969 So. 2d at 989. Accordingly, we affirm
the trial court’s denial.
Evans, 995 So. 2d at 941-42 (footnote omitted). In this present case, the matters
contained in the letter were in the nature of attorney’s mental impressions,
opinions, and theories of the case, just as in Evans and Kearse. Where, as here, the
letter contains attorney work product with regard to the postconviction claims, the
same principles applicable in Evans and Kearse would apply to bar disclosure of
the letter written in anticipation of litigation or preparation for trial. Thus, the
circuit court did not err in finding this letter was work product and not subject to
examination or testimony.
III. CLAIM OF INEFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL
Claims of ineffective assistance of appellate counsel are appropriately raised
in a petition for writ of habeas corpus, as Hayward has done in this case. See
Jackson v. State, 127 So. 3d 447, 476 (Fla. 2013). The alleged error must first be
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of “such magnitude as to constitute a serious error or substantial deficiency falling
measurably outside the range of professionally acceptable performance” and,
second, the deficiency in performance must have “compromised the appellate
process to such a degree as to undermine confidence in the correctness of the
result.” Id. (quoting Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986)).
Further, “appellate counsel will not be deemed ineffective for failing to raise a
claim that is without merit.” Id. (citing Freeman v. State, 761 So. 2d 1055, 1070
(Fla. 2000)).
Hayward contends that appellate counsel was deficient in failing to raise a
fundamental error claim on direct appeal asserting that Hayward was denied due
process by the admission of the testimony of Roosevelt McDowell, who Hayward
contends was not qualified to be a witness in the case. For the reasons we discuss
below, we find no merit in this claim.
A witness is incompetent to testify if the witness is unable to communicate
to the jury, unable to understand the duty to tell the truth, or is unable to perceive
and remember events. Rutherford, 774 So. 2d at 646. If the issue is not preserved
by trial counsel, appellate counsel is only deficient in failing to assert it on appeal
if it is fundamental error; and fundamental error is error that “reaches down into
the validity of the trial itself to the extent that a verdict of guilty could not have
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been obtained without the assistance of the alleged error.” Id. (quoting Urbin v.
State, 714 So. 2d 411, 418 n.8 (Fla. 1998)).
A witness is presumed competent to testify until the contrary is established.
Hawk v. State, 718 So. 2d 159, 162 (Fla. 1998); see also § 90.601, Fla. Stat.
(2007). Section 90.603, Florida Statutes (2007), provides that a person is
disqualified as a witness if the person is incapable of expressing himself or herself
concerning the matter or is incapable of understanding the duty to tell the truth.
Section 90.604, Florida Statutes (2007), provides that a witness may not testify to a
matter unless sufficient evidence, which can include the witness’s own testimony,
is introduced to support a finding that the witness has personal knowledge of the
matter. We explained in Kennard v. State, 28 So. 858 (Fla. 1900), “Where,
however, a witness has knowledge of the facts, and speaks from a recollection of
the facts as they actually appeared to him, though his impression may not amount
to positive assurance, it is competent to be considered by the jury.” Id. at 859.
Hayward has cited no authority for the proposition that lack of clear memory on
every aspect of the incident, for example by McDowell’s conflicting accounts of
whether the assailant wore a hat or not and whether the witness was heading to the
bathroom or had already been when shots were heard, is sufficient lack of
recollection to entirely disqualify a witness. Other aspects of McDowell’s
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testimony were firmly recalled and recounted for the jury, and in some instances
corroborated by other evidence.
McDowell was an older man with health problems who, in the middle of the
night, heard gunshots and looked out his door. He heard the victim make the
statement, “I don’t have no more.” McDowell exhibited some uncertainty or
confusion about whether he was on his way to the bathroom or had already been,
and about whether the shots had minutes between them or just seconds. He gave
differing accounts of whether the assailant had on a hat or a mask. Even so, his
testimony never wavered that he heard the victim say several times, “I don’t have
no more.” He never wavered that the assailant went into the car and also went
under a streetlight and appeared to examine his hand. He was not confused about
which direction the assailant took when he left the scene, and that the victim also
left the scene. Other evidence confirmed that the victim shot at the assailant and
that the victim left the scene before dying, and that the assailant’s blood was found
on a post behind McDowell’s apartment house, in the direction that McDowell
testified the assailant fled. Other evidence also confirmed that Hayward’s blood
was found in the victim’s pockets and on the car.
The discrepancies in McDowell’s testimony did not prove that he failed to
observe or could not recall the most important points about which he testified.
Hayward is correct that the trial court relied on McDowell’s testimony that
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Destefano said “I don’t have no more” in finding that the murder occurred during a
robbery for pecuniary gain. However, that aspect of McDowell’s testimony never
wavered. Although McDowell was older, in poor health, and possibly confused
about some aspects of the event he witnessed, that does not provide a basis to
disqualify him. See, e.g., Belcher v. Johnson, 834 So. 2d 422, 422-23 (Fla. 2d
DCA 2003) (holding that an elderly woman with dementia is not disqualified as a
witness simply for those reasons). Even insanity of a witness has been found to
affect only the witness’s credibility, not their competence to testify, if the witness
can otherwise observe, recall, and relate what they have seen, and if they know the
meaning of the oath to tell the truth. See, e.g., Zabrani v. Riveron, 495 So. 2d
1195, 1198 (Fla. 3d DCA 1986).
As noted above, appellate counsel cannot be deemed ineffective for failing
to raise nonmeritorious claims on appeal. Even if error had been shown in the
admission of testimony of McDowell, such error does not “reach down into the
validity of the trial itself to the extent that a verdict of guilty could not have been
obtained without the assistance of the alleged error.” Jackson v. State, 983 So. 2d
562, 576 (Fla. 2008). Thus, appellate counsel had no obligation to raise a claim
that was unpreserved and did not constitute fundamental error. Accordingly, the
writ is denied.
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IV. CONCLUSION
For all the foregoing reasons, the order of the circuit court denying
postconviction relief is affirmed and the petition for writ of habeas corpus is
denied.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Two Cases:
An Appeal from the Circuit Court in and for St. Lucie County,
James Walter McCann, Judge - Case No. 562005CF000436AXXXXX
And an Original Proceeding – Habeas Corpus
Neal Andre Dupree, Capital Collateral Regional Counsel, Southern Region, Paul
Edward Kalil, Assistant Capital Collateral Regional Counsel, Southern Region,
and Elizabeth Tandiwe Stewart, Staff Attorney, Capital Collateral Regional
Counsel, Southern Region, Fort Lauderdale, Florida,
for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Leslie T. Campbell,
Assistant Attorney General, West Palm Beach, Florida,
for Appellee/Respondent
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