Tina Lasonya Brown v. State of Florida & Tina Lasonya Brown v. Mark S. Inch, etc. ( 2020 )

Supreme Court of Florida
____________
No. SC19-704
____________
TINA LASONYA BROWN,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC19-1419
____________
TINA LASONYA BROWN,
Petitioner,
vs.
MARK S. INCH, etc.,
Respondent.
August 27, 2020
PER CURIAM.
Tina Lasonya Brown appeals the circuit court’s order denying her motion to
vacate her conviction of first-degree murder and sentence of death filed under
Florida Rule of Criminal Procedure 3.851, and she also petitions this Court for a
writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
For the reasons below, we affirm the circuit court’s denial of postconviction relief
and deny Brown’s habeas petition.
I. BACKGROUND
The facts of this case, including the overwhelming evidence of Brown’s
guilt, were set out in this Court’s opinion on direct appeal. See Brown v. State, 143
So. 3d 392, 395-402 (Fla. 2014). There, we explained that the evidence presented
at trial established that Brown; her daughter, Britnee Miller; and her neighbor
Heather Lee lived in the same mobile home park as the victim, Audreanna
Zimmerman. Id. at 395. In March 2010, Miller and the victim had an altercation
during which Miller attempted to strike the victim and the victim defended herself
with a stun gun. Id. Thereafter,
on March 24, 2010, Brown invited Zimmerman to her home under the
guise of rekindling their friendship. Before Zimmerman arrived,
Brown, Miller, Lee, and Miller’s thirteen-year-old friend, [M.A.,]
were inside the trailer. Brown and Lee were in the kitchen, where Lee
instructed Brown on the proper use of a stun gun. Miller then pulled
her friend aside and told her, “[W]e’re fixing to kill Audreanna
[Zimmerman].” Shortly after 9 p.m., Zimmerman entered the trailer.
Brown waited several minutes and then used the stun gun on
Zimmerman multiple times. When Zimmerman lost muscular control
and fell to the floor, Brown continued to use the stun gun on
Zimmerman, who was screaming and crying for help. Eventually,
Brown pulled Zimmerman across the trailer into the bathroom.
Zimmerman continued to scream and cry for help, so Miller struck
Zimmerman in the face and Lee stuffed a sock into Zimmerman’s
mouth. Zimmerman was then forcibly escorted outside and forced
-2-
into the trunk of Brown’s vehicle.[n.2] Brown, Miller, and Lee then
entered the vehicle and drove away.
[N.2]. During trial, Lee disputed this summation of what
occurred in the trailer after Brown began to attack
Zimmerman. The veracity of Lee’s testimony
concerning her involvement in this crime, however, was
significantly challenged during trial, particularly because
Lee, who claimed that she was a victim and was not
involved in Zimmerman’s murder, pled guilty to second-
degree murder based on her involvement in
Zimmerman’s death.
Id. at 395-96.
The record shows that when M.A. was asked at trial why she did not
intervene as Zimmerman was being attacked at Brown’s trailer, M.A. testified that
she was afraid that “[i]f all three of them [were] going to do it, they could do the
same thing to [her].” M.A. further testified that Brown was the primary aggressor
based on her observations at the trailer, although she said that Lee participated by
putting a sock in the victim’s mouth. According to M.A.’s trial testimony, Brown
used the stun gun on the victim, held the victim’s hands behind her back, led the
victim to Brown’s car, and forced the victim into the trunk. M.A. also testified that
as Brown was attacking the victim with a stun gun, Brown screamed, “Did you call
Crime Stoppers on me?”
Leaving M.A. behind at the trailer, Brown drove her car, with Miller and
Lee inside and the victim in the trunk, “to a clearing in the woods about a mile and
a half from the trailer park.” Brown, 143 So. 3d at 396. According to Lee’s trial
-3-
testimony, the following events occurred once the women arrived at the clearing in
the woods:
Brown exited the car and pulled Zimmerman out of the trunk.
Zimmerman attempted to flee, but stumbled in the darkness and was
caught by Brown and Miller. The two women wrestled Zimmerman
to the ground and simultaneously attacked her. Brown used the stun
gun again on Zimmerman as Miller beat her with a crowbar. Brown
and Miller then switched weapons and continued to torture and beat
Zimmerman. Miller eventually dropped the stun gun and repeatedly
punched Zimmerman. Brown returned to the car, retrieved a can of
gasoline from the trunk, and walked back toward the beaten and
prone, but still conscious, Zimmerman. Brown poured gasoline on
Zimmerman, retrieved a lighter from her pocket, set Zimmerman on
fire, and stood nearby to watch the screaming Zimmerman burn. Lee
testified that she was standing beside Miller, who exuberantly jumped
up and down and screamed, “Burn, bitch! Burn!” After a few
minutes, the three women returned to the car and drove away. During
the ride home, Miller said, “Mom, you’ve got to turn around. I left
my shoes and the taser.” Brown, however, refused to return to the
location of the event.
Id.
After Brown, Lee, and Miller left the scene of the burning, they returned to
Brown’s trailer. Id. at 397. There,
Brown and Miller removed their bloodstained clothing and placed it in
a garbage bag. Lee removed her shoes, which were also stained with
blood, and placed them in the bag. Miller informed her friend,
[M.A.], who had remained at the trailer during the attack, that she had
injured her hand striking Zimmerman, and that the three women had
set Zimmerman on fire. Miller and [M.A.] then used Brown’s car to
drive to the hospital to get medical care for Miller.
Id.
-4-
Meanwhile, Zimmerman, who had not immediately succumbed to her
wounds, walked about one-third of a mile to a neighboring home and asked for
assistance. Id. at 396.
At 9:24 p.m., an emergency medical technician (EMT) arrived
at the scene. When the EMT approached Zimmerman, he observed
her sitting on the porch, rocking back and forth with her arms straight
out. Due to the extensive nature of Zimmerman’s burns, the EMT
testified that he could not initially identify whether she was wearing
clothing. The EMT noticed that Zimmerman’s skin was falling off
her body, and he believed that over ninety percent of her body was
burned. She had severe head trauma, and her jaw was either broken
or severely dislocated. The EMT explained that the extent and
severity of the burns prevented him from providing Zimmerman
medical assistance. He testified that while he generally placed sterile
gauze and oxygen on burns, he did not have enough gauze to cover
her entire body. He attempted to stabilize her neck, but her skin was
charred to such an extent that he could not touch Zimmerman without
her skin rubbing off onto his gloves.
Despite her injuries, Zimmerman was conscious and alert. She
identified Brown and Lee as her attackers and told the EMT that she
was “drug out of the house, tased, beaten in the head with a crowbar,
and then set on fire.” She also provided her address as well as the
addresses of her attackers, and asked the EMT to protect her children.
The ambulance arrived within a few minutes and transported
Zimmerman to the hospital. Inside the ambulance, Zimmerman
repeatedly asked if she was going to recover. She told the paramedic
that Brown, Miller, and Lee poured gasoline on her and set her on fire.
She also stated that she “thought they had made up.” Zimmerman
was stabilized at a local hospital and then transferred to the Burn
Center at the University of South Alabama Hospital in Mobile,
Alabama, where she died sixteen days later.
Id. at 396-97.
-5-
Based on the information provided by Zimmerman, Brown and Lee were
arrested the night of attack, and Miller was arrested when she returned home from
the hospital the next day. Id. at 397. However, all three were released while
Zimmerman was still in the hospital. Id.
During that time, Brown informed her friend Pamela Valley that she,
Miller, and Lee had beaten Zimmerman, forced her into a car, driven
her to an open field and “lit her on fire and didn’t look back.” A few
days later, Brown informed Valley that Zimmerman was still alive
and requested Valley to finish her off. Valley declined and later
reported the conversation to law enforcement.
Id.
On April 9, 2010, the day that Zimmerman died as a result of multiple
thermal injuries, Brown, Miller, and Lee were rearrested. Id. The State charged
Brown with first-degree murder under both theories of premeditated and felony
murder with kidnapping as the underlying felony. 1
At trial, Brown’s jury heard that, while Brown was awaiting trial in jail, she
made statements to a fellow inmate, Corie Doyle, that were indicative of her state
of mind following the altercation between her daughter and Zimmerman. Id. at
395 n.1. Specifically, Doyle testified at trial that Brown told her Zimmerman had
used a stun gun on her daughter, Miller, and that when Brown had heard about it,
1. Brown was also indicted for kidnapping, but for reasons not explained in
the record, the State entered a nolle prosequi as to the kidnapping charge as trial
began.
-6-
she “informed Miller, ‘[D]on’t worry, I’ll take care of it.’ ” Id. Doyle also
testified that she and Brown had a conversation early one morning during which
Brown confessed her involvement in the murder. According to Doyle, at that time,
Brown admitted that “they picked up the victim and beat her up and tazed her and
set her on fire.” When asked who “they” were, Doyle testified that it was
“[Brown] and her daughter [Miller]” and that Heather Lee was there but that “she
didn’t have anything to do with it.” When asked if she knew who Lee was at the
time of this conversation, Doyle answered, “No. I have never laid eyes on her.”
Doyle further testified that she was eventually transferred and ended up housed
with Lee.
In addition, Brown’s jury heard that law enforcement had discovered
physical evidence at the scene of the burning, “including a pair of white shoes; a
stun gun with blood on the handle; paper stained with blood; an orange, gold, and
black hairweave [that matched a large section missing from the back of Brown’s
hair]; a crowbar; and a pool of blood.” Id. at 397 (footnote omitted). The jury also
heard that blood discovered on the passenger seat headrest of Brown’s vehicle
matched Zimmerman’s DNA profile, and that the blood on the stun gun matched
Brown’s DNA profile. Id.
Based on the evidence presented at trial, Brown’s jury found her guilty of
first-degree murder as charged. See id. at 397.
-7-
The case then proceeded to the penalty phase, where Brown presented
evidence of mitigating circumstances through several family members and her
mental health expert, Dr. Elaine Bailey. Id. at 397-400. Brown’s penalty-phase
presentation focused on how her traumatic background affected her and shaped her
actions on the night of the murder. See id. This evidence included that Brown had
suffered a deprived childhood; physical and sexual abuse, including being raped by
her father and prostituted by her stepmother; parental and other familial
abandonment; drug addiction; and exposure to her father’s drug-related, violent
criminal lifestyle as a child. See id. It also included evidence that, as an adult,
Brown had experienced physically and sexually abusive relationships, including
domestic abuse; and that she had struggled with addiction, particularly to crack
cocaine, to the point that she lost custody of two of her children. See id. at 399.
Additionally, evidence regarding Lee’s role in the crime factored into
Brown’s penalty-phase argument. For example, during the guilt phase, in addition
to challenging Lee’s denial of her role in the murder through cross-examination,
trial counsel called Wendy Moye, a fellow inmate of Lee’s, who testified that Lee
admitted to her that she was the one who lit the victim on fire, that the group had
gotten the victim into the car by telling her that they were going to the grocery
store, and that the beating started in the car. Although Brown relied on this and
other evidence to argue that Lee may have been more culpable and yet was
-8-
allowed to plead guilty to second-degree murder, the jury heard from Dr. Bailey
that “Brown did not deny her involvement in the murder, and that Brown felt
remorseful for her actions.” Id. at 400. More specifically, the penalty-phase
record reveals that Dr. Bailey testified that Brown had described Lee as “the
escalator” and further testified about “the impact of social mediation,” telling the
jury that if they “believe[d] that [Lee] was more involved in [the crime]” than she
claimed, then “[t]here was social mediation going [o]n, social influence, and
group-mediated emotion” that “makes more extreme behavior.” However, Dr.
Bailey said that it was not her opinion that Brown “acted under extreme duress
under Heather Lee” and testified that Brown did “not deny being an aggressor,
being involved, . . . [or] what she did” and that Brown “was very frank about her
role” in the victim’s murder during her evaluations.
The State’s expert, Dr. John Bingham, also evaluated Brown and “found no
evidence that Brown lacked the capacity to conform her conduct to the
requirements of the law[] or that she exhibited diminished capacity in
understanding the criminality of her conduct.” Brown, 143 So. 3d at 400. He also
opined that Brown “was not under extreme duress or experiencing an emotional
disturbance at the time of the offense.” Id. Dr. Bingham testified that “there was
no indication” Brown’s feelings of anger and rage “inhibited her ability to think
clearly or to recognize right from wrong,” that “Brown’s actions on the night of the
-9-
attack demonstrated preplanning, direction, and were goal[-]oriented,” and that
“while there was substantial trauma in Brown’s life, there was no cause and effect
relationship connecting Brown’s past to her actions in murdering Zimmerman.”
Id.
Following the penalty-phase presentation, the jury unanimously
recommended a sentence of death. Id. During the Spencer 2 hearing, records and
letters, including a letter from one of Brown’s friends, were introduced into
evidence. Id. Brown “apologized to the victim’s family,” stated that the victim
“died a horrific death,” admitted that she “was one of the ones who participated in
taking [the victim’s] life,” and said that the victim “didn’t deserve it at all.” Id.
Thereafter, the trial court followed the jury’s recommendation and sentenced
Brown to death, finding that the aggravating circumstances outweighed the
mitigating circumstances. Id. at 400-02.
In so doing, the trial court found that the State had proven beyond a
reasonable doubt the existence of the following aggravating factors and assigned
them the noted weight: “(1) the murder was committed in a cold, calculated, and
premeditated manner without any pretense of moral or legal justification (CCP)
(great weight); (2) the murder was especially heinous, atrocious, or cruel (HAC)
2. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
- 10 -
(great weight); and (3) the murder was committed while Brown was engaged in the
commission of a kidnapping (significant weight).” Id. at 401.
The trial court found one statutory mitigating circumstance, “that Brown had
no significant history of prior criminal activity,” and assigned it minimal weight.
Id. The trial court considered but rejected the following four statutory mitigating
circumstances: “(1) the crime was committed while Brown was experiencing an
extreme emotional disturbance; (2) Brown was an accomplice in the crime and her
participation was relatively minor; (3) Brown acted under extreme duress; and (4)
the capacity of Brown to appreciate the criminality of her conduct or to conform
her conduct to the requirements of law was significantly impaired.” Id. at 401 n.7.
The trial court also found twenty-seven nonstatutory mitigating
circumstances and assigned them the noted weight:
Specifically, the [trial] court found that Brown: (1) was the child of a
teenage mother (minimal weight); (2) was neglected by both parents
(some weight); (3) lost her childhood due to parental neglect (some
weight); (4) was abandoned by her mother (some weight); (5) had a
history of family violence (some weight); (6) was exposed to drugs
during her adolescence (some weight); (7) suffered developmental
damage due to her parents’ use of and dependence on drugs (some
weight); (8) was subjected to sexual violence inflicted by her father;
(some weight); (9) was betrayed by a trusted family member (i.e., her
grandmother) (some weight); (10) experienced corruptive community
influences and exposure to a criminal lifestyle (some weight); (11)
experienced chaotic moves and transitions (little weight); (12) was a
victim of domestic violence during her adult life (some weight); (13)
witnessed a violent homicide and served as a State witness in a
murder trial (little weight); (14) lost her family (her parental rights
were terminated for her two sons, and she has no relationship with her
- 11 -
mother or father) (little weight); (15) suffered repeated trauma
throughout her life (little weight); (16) suffered from drug addiction
(little weight); (17) suffered from the long term effects of chronic
cocaine use on her brain (some weight); (18) was a productive citizen
during periods of sobriety (little weight); (19) was living in poverty at
the time of the crime (minimal weight); (20) behaved well in jail (little
weight); (21) conducted a [B]ible study program (little weight); (22)
exhibited good courtroom behavior (little weight); (23) has no
possibility of parole (little weight); (24) showed remorse (some
weight); (25) received a different sentence than that of her co-
defendants (some weight)[n.8]; (26) had no history of prior criminal
violence (moderate weight); and (27) was using cocaine on the day of
the crime (moderate weight).
[N.8] In finding th[e] mitigating circumstance [that
Brown received a different sentence than that of her co-
defendants], the trial court noted that:
the three people involved in the murder of
Zimmerman are not similarly situated.
Despite her involvement in Zimmerman’s
murder, Britnee Miller cannot legally be
sentenced to death as she was less than 18
years of age when the murder was
committed. Heather Lee was convicted,
pursuant to a negotiated plea agreement with
the State, of second[-]degree murder.
Heather Lee cannot legally be sentenced to
death.
(Citation omitted.)
Id. at 401 & n.8.
In sentencing Brown to death, the trial court “noted that this case,
‘particularly because of the heinous, atrocious, [or] cruel nature of the murder of
- 12 -
Audreanna Zimmerman, falls into the class of murders for which the death penalty
is reserved.’ ” Id. at 402.
On direct appeal, this Court affirmed Brown’s conviction and sentence of
death. Id. at 408. 3 Thereafter, the United States Supreme Court denied Brown’s
petition for a writ of certiorari. Brown v. Florida, 574 U.S. 1034 (2014).
In 2015, Brown filed an initial motion for postconviction relief, which was
amended several times after being stricken for noncompliance with rule 3.851, and,
in 2017, ultimately filed the third amended motion at issue in this appeal.4
Following an evidentiary hearing, the circuit court denied relief on all of Brown’s
claims. Brown appeals the circuit court’s denial of several of her claims, and she
also petitions this Court for a writ of habeas corpus.
3. In her direct appeal, Brown raised the following claims: (1) the trial court
erred in finding the CCP aggravating circumstance; (2) her death sentence was
disproportionate; and (3) Florida’s death penalty statute violates the United States
Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 (2002). Brown, 143
So. 3d at 402-08. Although Brown did not contest her guilt, this Court found the
evidence sufficient to support her conviction. Id. at 407.
4. During this period, Brown filed three petitions in this Court: a petition
seeking review of a nonfinal order denying Brown’s motion to reconsider the order
striking her initial postconviction motion (with leave to amend) for noncompliance
with rule 3.851(e)(1), which this Court denied without prejudice, Brown v. State,
No. SC16-358, 2016 WL 3474843, at *1 (Fla. June 24, 2016); and two petitions for
writ of prohibition seeking to prohibit the trial judge from further participation in
her case, both of which this Court denied, Brown v. State, No. SC16-397, 2016 WL
3459727, at *1 (Fla. June 24, 2016), and Brown v. State, No. SC17-2166, 2017
WL 6493249, at *1 (Fla. Dec. 19, 2017).
- 13 -
II. POSTCONVICTION APPEAL
A. Ineffective Assistance of Trial Counsel
Brown argues that trial counsel was ineffective in numerous respects during
the jury selection, guilt, and penalty phases of her trial. Specifically, first, she
argues that trial counsel was ineffective during jury selection for failing to strike
juror Taylor for cause. Second, she claims that trial counsel was ineffective during
the guilt phase (a) for failing to adequately challenge the State’s evidence through
cross-examination of witnesses Heather Lee and Corie Doyle and (b) for failing to
present witnesses Darren Lee, Terrance Woods, and Nicole Henderson for
purposes of impeachment. Third, she argues that trial counsel was ineffective
during the penalty phase (a) for failing to conduct a reasonably competent
mitigation investigation and present adequate mitigation and (b) for failing to
consult and present additional mental health experts. Fourth, and last, she contends
that the circuit court erred by denying her claim that, cumulatively, trial counsel’s
deficient performance during the guilt and penalty phases deprived her of a
fundamentally fair trial.
To prevail on an ineffective assistance of counsel claim following the United
States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668 (1984),
a defendant must satisfy two requirements:
First, the claimant must identify particular acts or omissions of the
lawyer that are shown to be outside the broad range of reasonably
- 14 -
competent performance under prevailing professional standards.
Second, the clear, substantial deficiency shown must further be
demonstrated to have so affected the fairness and reliability of the
proceeding that confidence in the outcome is undermined.
Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright, 490
So. 2d 927, 932 (Fla. 1986)).
Regarding Strickland’s deficiency prong, there is a “strong presumption”
that trial counsel’s performance “falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. Moreover, “[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.” Id. The defendant bears the burden to “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)).
Regarding the prejudice prong, “Strickland requires defendants to show
‘there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. . . . [A] ‘reasonable
probability’ is a ‘probability sufficient to undermine confidence in the outcome.’ ”
Henry v. State, 948 So. 2d 609, 621 (Fla. 2006) (quoting Strickland, 466 U.S. at
694).
- 15 -
Because both prongs of Strickland present mixed questions of law and fact,
this Court employs a mixed standard of review, deferring to the circuit court’s
factual findings that are supported by competent, substantial evidence but
reviewing the circuit court’s legal conclusions de novo. See Sochor v. State, 883
So. 2d 766, 771-72 (Fla. 2004). “[W]hen a defendant fails to make a showing as to
one prong, it is not necessary to delve into whether he has made a showing as to
the other prong.” Zakrzewski v. State, 866 So. 2d 688, 692 (Fla. 2003) (quoting
Waterhouse v. State, 792 So. 2d 1176, 1182 (Fla. 2001)). “Where trial counsel is
deficient in more than one area, however, we must ‘consider the impact of these
errors cumulatively to determine whether [the defendant] has established
prejudice.’ ” Sparre v. State, 289 So. 3d 839, 847 (Fla. 2019) (quoting Parker v.
State, 89 So. 3d 844, 867 (Fla. 2011)).
For the reasons below, we affirm the circuit court’s denial of postconviction
relief.
(1) Jury Selection
Brown argues that trial counsel was ineffective for failing to strike juror
Taylor for cause because juror Taylor’s voir dire responses indicate that he would
automatically vote for the death penalty if Brown was convicted of first-degree
murder. We disagree.
- 16 -
To establish the prejudice required by Strickland, “where a postconviction
motion alleges that trial counsel was ineffective for failing to raise or preserve a
cause challenge, the defendant must demonstrate that a juror was actually biased.”
Carratelli v. State, 961 So. 2d 312, 324 (Fla. 2007). “Under the actual bias
standard, the defendant must demonstrate that the juror in question was not
impartial—i.e., that the juror was biased against the defendant, and the evidence of
bias must be plain on the face of the record.” Id. Moreover, to establish actual
bias, the record must show “something more than mere doubt about [the] juror’s
impartiality.” Mosley v. State, 209 So. 3d 1248, 1265 (Fla. 2016).
When the record in this case is viewed as a whole, Brown cannot make the
requisite showing of actual bias. Juror Taylor initially stated that he had an open
mind as to the appropriate penalty. Subsequently, juror Taylor was asked if his
response to defense counsel’s question as to whether he could put aside his
personal feelings, follow the judge’s instructions, and consider the evidence before
imposing the death penalty was “the same” as that of another prospective juror
who had answered, “I could do that.” Juror Taylor responded, “No,” and then he
explained his answer by stating that whether he would vote to impose the death
penalty would “depend[] on the evidence” and that “[i]f it’s proven without a
shadow of a doubt, [he] would go with the death penalty.”
- 17 -
Although that response arguably supports Brown’s claim, the remainder of
the record is to the contrary. For example, juror Taylor did not voice disagreement
when trial counsel later asked the entire panel, “Do each of you agree that it’s not
automatic that [Brown] get the death penalty . . . if [Brown] would be found guilty
of first-degree murder. . . . It’s not automatic that she get the death penalty?”
Similarly, juror Taylor did not voice disagreement with trial counsel’s subsequent
follow-up question to the entire panel as to whether there was anyone on the panel
who would not be able to “consider the personal circumstances and background of
the Defendant when you’re making the decision as to whether to recommend life
or death.” Moreover, when trial counsel specifically questioned juror Taylor
regarding his opinion of mental health professionals and the validity of the
profession, juror Taylor was not dismissive of this type of mitigation and instead
stated, “I would assume it’s pretty valid.”
On this record, at best, one of juror Taylor’s voir dire responses raised some
doubt as to his impartiality—doubt that is not enough to establish the requisite
prejudice, see Mosley, 209 So. 3d at 1265, and that, in any event, is dispelled when
the voir dire record is considered as a whole. Accordingly, because Brown cannot
establish the actual bias required to prove that she was prejudiced by trial counsel’s
failure to challenge juror Taylor for cause, we affirm the circuit court’s denial of
relief. See Carratelli, 961 So. 2d at 324.
- 18 -
(2) Guilt Phase
Brown next argues that trial counsel was ineffective during the guilt phase
(a) for failing to adequately challenge the State’s evidence through cross-
examination of witnesses Heather Lee and Corie Doyle and (b) for failing to
present witnesses Terrance Woods, Darren Lee, and Nicole Henderson for
purposes of impeachment.
(A) Cross-Examination of Witnesses
Heather Lee
Brown first argues that trial counsel’s cross-examination of Heather Lee was
ineffective because trial counsel failed to impeach Lee in several respects.
Prior Convictions
First, Brown argues that trial counsel was ineffective in cross-examining Lee
because he failed to impeach Lee with her prior convictions for two petit thefts and
two felony failures to appear. Brown argues that if Lee had opened the door when
questioned as to the existence and number of her prior convictions, trial counsel
could have inquired further into the details underlying those convictions and used
that information to argue that the jury should not believe Lee’s testimony and
should instead believe that Lee was more culpable than Brown for the victim’s
murder due to Lee’s violent history.
- 19 -
As an initial matter, the record refutes Brown’s argument that impeaching
Lee with her prior convictions would have opened the door to further inquiry about
the underlying details of those convictions. Lee was questioned about her prior
convictions at the evidentiary hearing, and postconviction counsel did not attempt
to make such a record based on Lee’s responses. Moreover, at best, Lee’s
responses would have resulted in the records of her convictions being introduced
into evidence. See Tilus v. State, 121 So. 3d 1145, 1149 (Fla. 4th DCA 2013)
(“The proper method to impeach a witness who provides inaccurate or misleading
information regarding prior convictions is to admit certified copies of the
convictions.”).
Nevertheless, although Lee’s prior convictions could not have been used to
the extent Brown argues, they constitute available impeachment evidence that went
unused by trial counsel. See § 90.610(1), Fla. Stat. (2019). However, we need not
“delve into” whether Brown has made a showing as to the deficiency prong
because there is no prejudice for the reasons explained below in our cumulative
prejudice analysis. Zakrzewski, 866 So. 2d at 692.
Prior Inconsistent Statements
Second, Brown argues that trial counsel was ineffective in cross-examining
Lee because he failed to impeach Lee with four alleged prior inconsistent
statements. First, she argues that trial counsel should have impeached Lee’s trial
- 20 -
testimony regarding her whereabouts on the day of the crime, namely that she went
to Brown’s trailer at approximately 9 p.m., with Lee’s prior statements that she
was around Brown’s trailer between 3:15 and 3:45 p.m., but then went home to
cook and visit with multiple family members. Second, Brown argues that trial
counsel should have impeached Lee’s trial testimony about who was present in the
vehicle used to transport the victim and in the area where the victim was lit on
fire—herself, Miller, and Brown—with her prior statement that M.A. was also
present and that M.A. and Miller held her at the back of the vehicle while Brown
pulled the victim out of the trunk. Third, Brown claims that trial counsel should
have impeached Lee’s trial testimony that she had not previously been to the area
where the victim was lit on fire, but she could see the entrance to the area and the
chains blocking it off, with her prior statement that she knew the area but it is
usually blocked with strings to prevent people from entering. Fourth, and finally,
Brown argues that trial counsel should have impeached Lee’s trial testimony that
she “guess[ed]” her shoes were bloody because she stepped in some blood while
running with her prior statement that she “guess[ed]” blood flew on her when the
victim was being attacked, although she was not taking part in it. Brown contends
that trial counsel’s deficient cross-examination prejudiced her because her jury did
not hear additional evidence that it could have used to conclude that Lee was a liar.
- 21 -
However, Lee was not questioned at the postconviction evidentiary hearing
about her alleged prior inconsistent statements on any of these subjects. Therefore,
“what [she] would have said if questioned about [them] . . . is speculative and,
thus, cannot support postconviction relief.” Calhoun v. State, Nos. SC18-340 &
SC18-1174, 2019 WL 6204937, at *9 (Fla. Nov. 21, 2019). Accordingly, we
affirm the circuit court’s denial of relief with respect to all of these claims.
Bias
Brown next argues that trial counsel was ineffective during her cross-
examination of Lee by failing to impeach Lee through evidence of bias. See
§ 90.608(2). Specifically, Brown argues Lee’s husband, Darren Lee, admitted
during his pretrial deposition that he was sleeping with both the victim and Brown.
She further argues that Terrance Woods testified during his pretrial deposition that
Darren Lee was having an affair with the victim and that Heather Lee found out
about it and got into a physical fight with the victim about it two days before the
victim’s murder. Brown argues that eliciting Lee’s knowledge of her husband’s
affairs with both the victim and Brown during cross-examination would have
established bias, namely Lee’s motive to kill the victim and blame Brown. We
affirm the denial of relief because Brown failed to present any evidence that would
support this claim. Heather Lee denied knowledge of her husband’s affairs when
questioned about them at the postconviction evidentiary hearing. Trial counsel
- 22 -
cannot be ineffective for failing to elicit information from Lee on cross-
examination that Lee denies exists. However, we recognize that in addition to
challenging trial counsel’s cross-examination of Heather Lee, Brown argues that
trial counsel was ineffective for failing to call Darren Lee and Terrance Woods to
impeach Lee about this and other subjects, and we address those claims below.
Lee’s Failure to Open the Door for Police
Brown further argues that trial counsel was ineffective in cross-examining
Lee by failing to use Darren Lee’s pretrial deposition testimony to discredit Lee’s
trial testimony that she did not open the door for the police because Brown told her
not to. In his pretrial deposition, Darren Lee testified that no one opened the door
because he was high. However, Brown cites no authority for her argument that
trial counsel could have admitted Darren Lee’s deposition testimony to impeach
Heather Lee’s trial testimony about why she did not open the door for police. To
the extent Brown argues that trial counsel should have called Darren Lee as a
witness to attack Lee’s credibility by showing that the facts as to why Lee failed to
open the door were not as Lee testified, see § 90.608(5), we address the argument
that trial counsel was ineffective for failing to call Darren Lee as a witness to
impeach Lee on this and other subjects below.
- 23 -
Corie Doyle
Brown next argues that trial counsel was ineffective during his cross-
examination of Corie Doyle because he failed to impeach Doyle with her prior
convictions, jail records, and deposition statements.5 However, Brown’s argument
regarding Doyle’s prior convictions was not included in her postconviction motion
and is therefore procedurally barred. See Thompson v. State, 759 So. 2d 650, 667
n.12 (Fla. 2000) (holding claim “procedurally barred because it was not alleged in
the postconviction motion filed in the trial court”). Regarding the jail records,
Brown claims that trial counsel could have used them to impeach Doyle’s
testimony that Brown confessed to her before she had ever seen Lee. Brown
explains that the records would show that Doyle was housed with Lee before she
was housed with Brown and that this information undermines Doyle’s claim never
to have seen Lee before when this information is considered along with (a) Doyle’s
testimony that she approached Brown because Brown’s jumpsuit was an eye-
5. Brown also argues that trial counsel was ineffective for failing to
discover and use the testimony of another inmate, Nicole Henderson, that, in
Henderson’s observation, Brown was not an early riser. She argues that
Henderson’s testimony would impeach Doyle’s trial testimony that Brown
confessed to her early one morning. As explained below, Brown raises other
ineffective assistance of counsel claims related to Henderson, which, like this
claim, turn on whether trial counsel should have discovered the information
available from Henderson prior to trial. Therefore, we address all of Brown’s
ineffective assistance of counsel claims related to trial counsel’s failure to call
Henderson as a witness below.
- 24 -
catching color and (b) other evidence that Lee’s jumpsuit was the same color as
Brown’s. Regarding Doyle’s pretrial deposition, Brown claims that trial counsel
failed to impeach Doyle with statements that would have shown Doyle learned
about the murder from the news and embellished the details on her own, including
Doyle’s deposition testimony that Brown told her Miller caught herself on fire.
However, because Doyle did not testify at the evidentiary hearing, “what [Doyle]
would have said if questioned” about the jail records and statements made in her
pretrial deposition “is speculative and, thus, cannot support postconviction relief.”
Calhoun, 2019 WL 6204937, at *9. Accordingly, we affirm the postconviction
court’s denials with respect to these claims.
(B) Failure to Present Impeachment Witnesses
Terrance Woods
Brown next argues that trial counsel was ineffective for failing to call
Terrance Woods. Specifically, she argues that by calling Woods to impeach
Heather Lee’s trial testimony, trial counsel would have been able to lessen
Brown’s culpability, show that Heather Lee was the ringleader, and corroborate
similar powerful impeachment evidence available from Darren Lee. We agree that
trial counsel was deficient for failing to call Woods.
At his pretrial deposition, Woods testified that Heather Lee told him she had
discovered that her husband, Darren Lee, was having an affair with the victim, and
- 25 -
that she had gotten into a fight with the victim about it two days prior to the
murder. On the day of the fight, Woods heard Heather Lee say, “I’m going to kill
the bitch.” On a separate occasion, after the victim’s murder, Woods stated that
Heather Lee admitted to him and Darren Lee that “all three of them”—referring to
herself, Brown, and Miller—“got the girl, we took her, we beat her up, set her on
fire.” Woods further stated that Lee admitted to pouring gas on the victim and to
setting her on fire.
At the postconviction evidentiary hearing, Woods testified consistently with
his deposition. 6 Although trial counsel generally testified that his strategy was to
blame Heather Lee as much as possible without losing credibility with the jury by
saying that Brown was not involved, trial counsel would not take a position as to
whether calling Woods as a witness would have been helpful to Brown’s case.
When pressed, trial counsel stated, “Unless I didn’t believe him,” but he did not
testify that he had actual knowledge that Woods was lying, or even that he actually
did not believe Woods. Like many of the witnesses in this case, Woods was
subject to impeachment with prior felony convictions, and the record shows that he
was in prison at the time of Brown’s trial and hoped to benefit from his testimony.
However, because the record shows that Woods’ testimony was consistent with
6. Prior to trial, Woods also wrote six letters to the State Attorney consistent
with his pretrial deposition and evidentiary hearing testimony.
- 26 -
trial counsel’s stated strategy, and when pressed on the issue, trial counsel could
not articulate a reasonable strategy for failing to call Woods, we hold that trial
counsel was deficient for failing to do so. See Schoenwetter v. State, 46 So. 3d
535, 554 (Fla. 2010) (“Reasonable decisions regarding trial strategy, made after
deliberation by a claimant’s trial attorneys in which available alternatives have
been considered and rejected, do not constitute deficient performance under
Strickland.”).
Because, as explained below, we find trial counsel deficient in an additional
respect, we address prejudice cumulatively.
Darren Lee
Brown next argues that trial counsel was ineffective for failing to call Darren
Lee. Specifically, Brown argues that, after Terrance Woods testified at his pretrial
deposition about incriminating statements Heather Lee made to himself and Darren
Lee before and after the murder, no reasonable trial counsel would have failed to
re-depose Darren Lee and call him as a witness at trial to impeach Heather Lee.
Brown also argues that Darren Lee could have impeached Heather Lee’s testimony
as to why she did not open the door for the police, further discrediting Lee’s
attempts to paint Brown as the ringleader. We agree that trial counsel was
deficient for failing to call Darren Lee.
- 27 -
Trial counsel testified at the postconviction evidentiary hearing that he could
not see Darren Lee providing any useful information. However, when Darren Lee
testified at the evidentiary hearing, he admitted to having affairs with both Brown
and the victim, and he also testified to the statements that Heather Lee made to him
in the presence of Terrance Woods. Darren Lee’s testimony was consistent with
that of Terrance Woods. Specifically, Darren Lee testified that before the victim’s
murder, after Heather Lee came home following a fight with the victim, she told
him that he “won’t be sleeping with that bitch.” After the victim’s murder,
according to Darren’s testimony, Heather Lee described how the victim begged for
her life and claimed to have been the one who poured gas on the victim and lit her
on fire. Finally, although Heather Lee testified during trial that she did not open
the door for police following the victim’s murder because Brown told her not to,
during his pretrial deposition, Darren Lee stated that no one opened the door for
the police because he was high.
Trial counsel testified at the postconviction evidentiary hearing that he did
not think it would have been helpful to Brown’s case or to the impeachment of
Heather Lee to have Darren Lee testify, as Darren Lee had spoken to the police
three times and never told them that Heather Lee confessed. Generally, “counsel is
not ineffective for deciding not to call a witness whose testimony will be harmful
to the defendant.” Diaz v. State, 132 So. 3d 93, 109 (Fla. 2013).
- 28 -
However, we fail to see—and the record is silent regarding—how calling
Darren Lee to testify at trial would have been inconsistent with trial counsel’s
stated strategy to place as much blame on Heather Lee as possible without having
the jury think he was trying to “scam” them by saying that Brown was not involved
in the victim’s murder. To the contrary, as Brown argues, Darren Lee’s testimony
about Heather Lee’s statements would have impeached her trial testimony that she
and the victim were “real close friends” and other testimony in which she
attempted to minimize her role in the victim’s murder and described Brown as the
ringleader. Further, Darren Lee’s admissions to having affairs with both Brown
and the victim could have been used to explain Heather Lee’s motive for
participating in the murder and her bias for testifying and attempting to minimize
her role in comparison to Brown’s. Moreover, most of the available impeachment
testimony from Darren Lee would have been corroborated by the available
impeachment testimony from Terrance Woods, which we have already held that
trial counsel was deficient for failing to present. Cf. State v. Morrison, 236 So. 3d
204, 220 (Fla. 2017) (ruling that there were sufficient facts to place trial counsel
“on notice” that further investigation of the defendant’s mental health and social
background was required and that counsel’s failure to investigate such defenses
were “not reasonable under prevailing professional norms”). We similarly hold
that trial counsel was deficient for failing to call Darren Lee, and in light of our
- 29 -
holding that trial counsel was also deficient for failing to call Terrance Woods, we
address prejudice cumulatively below.
Nicole Henderson
In her last claim regarding trial counsel’s guilt-phase representation, Brown
argues that trial counsel was ineffective for failing to investigate and call Lee’s
fellow inmate Nicole Henderson as a witness at trial. At the postconviction
evidentiary hearing, Henderson testified that while she was in jail with Lee, she
overheard Lee talking to a third inmate about the victim’s murder. According to
Henderson, Lee told the other inmate that the murder happened because Lee’s
boyfriend had impregnated another lady and that Lee planned to “get off” by
blaming the murder on Brown and Miller with the help of two juveniles who were
being housed with Miller. On cross-examination, Henderson testified that it
sounded like Lee was bragging and that Lee had not said how she planned to
contact the two juveniles. Henderson also testified that Lee had gotten into a fight
with Henderson’s sister because Lee’s boyfriend wanted to have sex with her.
Finally, Henderson testified to her observations of Brown in jail, including that she
did not see Brown awake or out of her cell early in the mornings.
Brown argues that trial counsel was ineffective for failing to discover and
use Henderson’s testimony about the conversation Henderson overheard to
impeach Lee, for failing to use Henderson’s testimony regarding the fight as
- 30 -
reverse Williams7 rule evidence, and for failing to use Henderson’s observations of
Brown while they were in jail together to refute Corie Doyle’s trial testimony that
Brown confessed to her early one morning. We affirm the circuit court’s denial of
relief.
As an initial matter, Brown failed to establish a fact critical to all three of her
arguments, namely that trial counsel should have discovered the information
available from Henderson before trial. To the contrary, at the postconviction
evidentiary hearing, trial counsel denied having knowledge that Lee had confessed
to any inmate while in jail, except Wendy Moye. Also, Henderson testified at the
evidentiary hearing that she did not tell anyone about Lee’s confession when it
occurred, and Henderson was not asked whether she told anyone about Lee’s fight
with her sister or about her observations of Brown.
However, even assuming that trial counsel should have discovered this
information from Henderson, trial counsel testified at the evidentiary hearing that
he generally does not like to use “jailhouse snitches and rats” because “[t]hey lie”
and that he did not feel that having multiple witnesses testify that Lee had
confessed would have been helpful for Brown’s case. In light of the testimony
about Lee’s confession that the jury heard through Moye, the judgment call
7. Williams v. State, 110 So. 2d 654 (Fla. 1959); see also State v. Savino,
567 So. 2d 892, 894 (Fla. 1990).
- 31 -
associated with presenting any witness, particularly one who is incarcerated, and
trial counsel’s strategy not to present testimony from multiple witnesses on the
same topic, we cannot say that the record is devoid of competent, substantial
evidence supporting the circuit court’s finding that trial counsel was not deficient
for failing to call Henderson to testify regarding Lee’s statements to her. Cf.
Whitfield v. State, 923 So. 2d 375, 380 (Fla. 2005) (explaining that “trial counsel
have significant leeway in determining how to present [cumulative] evidence,” in
the context of addressing the claim that trial counsel was ineffective for failing to
call additional witnesses to corroborate the defendant’s voluntary intoxication
defense).
Moreover, Henderson’s testimony that Lee had gotten into a fight with
Henderson’s sister because Lee’s boyfriend wanted to have sex with Henderson’s
sister would not have been admissible as reverse Williams rule evidence, even
assuming that Brown preserved this argument, which she did not. 8 The
circumstances of Lee’s fight with Henderson’s sister are not sufficiently similar to
the circumstances of the victim’s murder to constitute reverse Williams rule
evidence. See State v. Savino, 567 So. 2d 892, 894 (Fla. 1990) (explaining that
under the reverse Williams rule, a defendant may introduce evidence that another
8. This argument is not preserved because Brown raised it for the first time
in her initial brief. See Thompson, 759 So. 2d at 667 n.12. Below, Brown claimed
the same evidence showed Lee’s reputation for violence.
- 32 -
person has committed a similar crime if the evidence shows “a close similarity of
facts, a unique or ‘fingerprint’ type of information”).
Finally, competent, substantial evidence supports the circuit court’s finding
that trial counsel was not deficient for failing to present Henderson’s testimony
about her observations of Brown because it did not refute Doyle’s trial testimony
that Brown confessed to her early one morning. Although, at the postconviction
evidentiary hearing, Henderson testified that based on her observations of Brown
while they were in jail together, Brown was not an early riser, Henderson admitted
on cross-examination that it was possible Brown got up early at times.
Accordingly, we affirm the circuit court’s denial.
(3) Penalty Phase
In her final claim of ineffective assistance of trial counsel, Brown argues that
trial counsel was ineffective during the penalty phase in two respects, namely (a)
for failing to conduct a reasonably competent investigation and present adequate
mitigation and (b) for failing to consult and present additional mental health
experts.
(A) Mitigation
Brown first argues that trial counsel rendered deficient performance in
investigating and presenting mitigation. After providing the necessary background
about Brown’s postconviction motion and the circuit court’s rulings, we explain
- 33 -
the procedural bar that applies to Brown’s appeal of the denial of this claim and
why, even without the procedural bar, we would nevertheless affirm.
Following the postconviction evidentiary hearing, the circuit court ruled that
portions of Brown’s claim were facially insufficient. Specifically, the circuit court
found that the “blanket and non-detailed allegation” that trial counsel “failed to
speak with any of [Brown’s] cousins, friends, ex-boyfriends, or ex-husbands” was
“facially insufficient” and denied it “with prejudice,” “to the extent [it] can be
considered a subclaim.” In so ruling, the circuit court explained that Brown’s
motion “fails to identify with particularity the identity of these purported
witnesses, the content of their testimony, if [Brown] told counsel about these
people, if they were available to testify, and most importantly, how their testimony
would have made a difference in [Brown’s] sentence.”
Similarly, Brown’s motion alleged that trial counsel failed to fully explain
Brown’s background “including but not limited to: her extensive history of drug
abuse, her extensive history of physical and sexual abuse, her mental illness, her
family’s background, and how that background affected Ms. Brown and her
conduct during the commission of the crime.” However, without attributing any of
the information to a specific source, Brown’s motion devoted approximately four-
and-a-half pages to discussing the “wealth of mitigation” that she claimed would
have been available had trial counsel “properly prepared and investigated.” In
- 34 -
finding that this portion of Brown’s claim was also “facially insufficient,” the
circuit court ruled that Brown “goes on for pages, giving details of [her] life, but
she does not link this information to any particular witness or indicate through
which witnesses penalty-phase counsel should have presented this information”
and further “does not explain specifically how any of this information would have
made a difference in [her] trial.” The circuit court also gave two other reasons for
denying this portion of Brown’s claim. First, the circuit court alternatively ruled
that even if this portion of Brown’s claim were facially sufficient, “the information
alleged is cumulative to the lengthy mitigation already presented by penalty-phase
counsel.” Second, the circuit court ruled that Brown “failed to demonstrate how
penalty-phase counsel did not ‘link’ [Brown’s] background to its effect on [Brown]
during the crime,” crediting trial counsel’s evidentiary hearing testimony that she
“thought” that Brown’s mental health expert, Dr. Elaine Bailey, “covered
[Brown’s] life history from the beginning to the time of the crime, and linked
[Brown’s] life history to the crime itself,” and finding that the record “supports this
conclusion.” 9
9. Indeed, it does. For example, Dr. Bailey testified during the penalty
phase to the “stressors” that would have affected Brown at the time of the crime,
including “repeated traumas, addictions, abusive relationships, exposure to
violence, a lot of sexual victimization, both in childhood being prostituted and
adulthood[,] [and a] lot of community negative influence and crime, and [she
explained that] all of those things c[a]me together.” Dr. Bailey also testified that
Brown’s childhood experiences would have affected her into adulthood, that
- 35 -
In addition to the above rulings, the circuit court ruled that Brown failed to
substantiate the remaining portions of her claim that related to named individuals.
Specifically, Brown’s motion named three family members she claimed trial
counsel was ineffective for failing to adequately investigate and prepare for the
penalty phase: (1) her mother Lily Ramos; (2) her brother Willie Coleman, Jr.; and
(3) her paternal uncle Gerald Coleman. The circuit court denied relief, finding that
Brown “failed to present any evidence to support her allegations that the witnesses
were ill-prepared.” In so ruling, the circuit court cited trial counsel’s explanation
at the evidentiary hearing regarding why Brown’s mother was not called as a
penalty-phase witness, which included that Brown’s mother “actually told [trial
counsel] she believed [Brown] should get the death penalty.” With respect to
Willie Coleman, Jr., and Gerald Coleman, the circuit court found that although the
documentary evidence showed defense counsel’s trip to visit Brown’s family
occurred weeks before the trial, Brown “failed to present any testimonial evidence
to show that penalty-phase counsel did not adequately prepare the witnesses who
testified.”
Brown’s motion also identified three other individuals she claimed trial
counsel was ineffective for failing to discover and present as penalty-phase
trauma affects brain development, and that “[t]he bottom line is trauma is
cumulative.”
- 36 -
witnesses: (1) her cousin Trina Bell; (2) one of her ex-husbands and the father of
her three children, Gregory Miller, Sr.; and (3) her friend Jennifer Malone.
Brown’s motion alleged that Bell “could have provided evidence of [her] history of
sexual abuse, drug use, and physical abuse by her boyfriends,” that Miller “had
firsthand knowledge of [her] daily cocaine and heroin use, physical abuse from her
father, and episodes of domestic violence,” and that Malone had sent a letter to the
trial judge and had offered to be of assistance but that trial counsel failed to follow
up. None of these individuals testified at the postconviction evidentiary hearing.
Just as it ruled regarding the other named individuals, the circuit court ruled that
Brown failed to substantiate these claims (in addition to providing alternate bases
for denying relief with respect to Miller and Malone).
More specifically, regarding Bell, the circuit court denied relief because,
despite being granted an evidentiary hearing on this claim, Brown “failed to
present Ms. Bell’s testimony or any evidence to substantiate her allegations
regarding Trina Bell.”
Regarding both Miller and Malone, the circuit court ruled that their failures
to testify at the evidentiary hearing precluded it from assessing their credibility and
determining whether their testimony would have made a difference in Brown’s
sentence. Alternatively, the circuit court ruled that even if they had testified
consistently with what Brown’s postconviction expert, Dr. Faye Sultan, testified at
- 37 -
the evidentiary hearing that they had told her, the information was cumulative to
that presented during the penalty phase.10
Brown now appeals the circuit court’s denial, arguing that “the evidence
presented at the evidentiary hearing was far from cumulative.” As explained
above, the circuit court found that the entirety of Brown’s claim was either facially
insufficient or unsubstantiated, and Brown fails to challenge those rulings on
appeal. Instead, she challenges only the circuit court’s alternative ruling that even
if her claim were facially sufficient, the mitigation alleged in her postconviction
motion was cumulative to the mitigation already presented at the penalty phase. In
failing to challenge the circuit court’s primary bases for denying relief, Brown has
waived the argument that they are in error. See Shelly v. State, No. SC16-1195,
2019 WL 102481, at *1 (Fla. Jan. 4, 2019) (“[A]n argument not raised in an initial
10. In its alternative ruling about the cumulative nature of the mitigation,
the circuit court identified one exception regarding Malone. Specifically, the judge
who presided over Brown’s trial received an email from Jennifer Malone on the
morning of the Spencer hearing that stated Brown “did A LOT for [Malone] when
[she] had no one else” and that “the Tina [Malone] knew was a wonderful friend
and person that would do anything to help anyone.” Although the circuit court
ruled that Dr. Sultan’s testimony about her interview with Malone revealed
“additional details regarding [Brown’s] influence in Ms. Malone’s life,” it found
that the information “would not have changed [Brown’s] sentence.” Moreover, the
circuit court ruled that Brown provided no evidence to support her claim that
penalty phase counsel should have known of Malone’s existence in time to present
her testimony to the penalty phase jury, and that “[c]ounsel cannot be found
deficient for failing to investigate a person she did not know existed.”
- 38 -
brief is waived.”) (quoting Tillery v. Fla. Dep’t of Juvenile Justice, 104 So. 3d
1253, 1255 (Fla. 1st DCA 2013)).
But, even if she had not, we would still affirm. The circuit court correctly
ruled that the portions of Brown’s motion that failed to identify the witnesses trial
counsel was supposedly deficient for failing to discover, the specific mitigation
each would have provided, or how its absence prejudiced her are facially
insufficient. See State v. Lucas, 183 So. 3d 1027, 1032 (Fla. 2016) (“There is no
question that when the ineffective assistance claim alleges trial counsel should
have presented a fact witness, such witness must be named and his or her
availability attested to.”); see also Booker v. State, 969 So. 2d 186, 196 (Fla. 2007)
(“To establish a claim of ineffective assistance of trial counsel for failing to call
certain witnesses, a defendant must allege in the motion ‘what testimony defense
counsel could have elicited from [the] witnesses and how defense counsel’s failure
to call, interview, or present the witnesses who would have so testified prejudiced
the case.’ ” (quoting Nelson v. State, 875 So. 2d 579, 583 (Fla. 2004))).11
11. We note that Brown’s noncompliance with rule 3.851 was a recurring
theme below that delayed this case for years. Brown amended her postconviction
motion multiple times after the circuit court struck the prior version for failing to
comply with rule 3.851. The order on appeal constitutes the denial of Brown’s
third amended motion. Even still, the circuit court’s order notes the “disorganized”
nature of the motion and finds that “to the extent that this court may have failed to
address any claims, this Court considers those claims, subclaims, and/or arguments
waived based on [Brown’s] failure to comply with the pleading requirements of
rule 3.851.” Brown does not appeal this ruling.
- 39 -
Regarding the remaining portions of Brown’s claim related to the six named
individuals, because the record supports the circuit court’s finding that Brown
failed to substantiate those portions of her claim, we would affirm.
Moreover, although as explained above, the procedural bar and affirmance
on the alternate bases of facial insufficiency and failure to substantiate make it
unnecessary to address the circuit court’s alternative ruling regarding the
cumulative nature of the mitigation, we agree with the circuit court’s conclusion.12
12. Brown’s focus in the penalty phase was on how her traumatic
background affected her and shaped her actions on the night of the murder. The
background information presented at the penalty phase included Brown’s (1)
suffering physical and sexual abuse (namely being raped by her father and
prostituted by her stepmother), parental and other familial abandonment, drug
addiction, and exposure to her father’s drug-related, violent criminal lifestyle as a
child and (2) experiencing domestic abuse and struggles with addiction as an adult,
to the point that she lost custody of two of her children. Along with presenting this
evidence, Brown argued that Heather Lee may have been more culpable and yet
was allowed to plead guilty to second-degree murder. Indeed, of the twenty-seven
nonstatutory mitigating circumstances found by the trial court, nineteen relate to
Brown’s traumatic experiences and struggles with addiction. See Brown, 143 So.
3d at 401 (nonstatutory mitigating circumstances 1-17, 19, and 27).
Similarly, Brown’s postconviction motion describes her deprived childhood;
her struggles with drug addiction that began in childhood, particularly to crack
cocaine; and her traumatic experiences, including that her childhood home was
filled with violence and used in a drug operation, that she was neglected and
emotionally, physically, and sexually abused (including being raped by her father
and prostituted for drugs and money by her stepmother with her father’s approval)
as a child, and that she was abused by ex-husbands and ex-boyfriends as an adult.
Although Brown’s initial brief improperly references additional mitigation that was
not included in her postconviction motion and that was obtained from sources who
were not identified in her motion and who did not testify at the evidentiary hearing,
- 40 -
Accordingly, we affirm the circuit court’s denial of relief.
(B) Mental Health Experts
Brown next argues that the circuit court erred in denying her claim that trial
counsel was ineffective during the penalty phase for failing to consult and present
additional mental health experts to explain the combined effects of polysubstance
abuse, childhood trauma, and mental illness on her brain. The circuit court ruled
that trial counsel was not deficient for failing to hire additional mental health
experts based on trial counsel’s testimony at the evidentiary hearing that Brown’s
penalty-phase mental health expert, Dr. Bailey, did not recommend doing so.
Brown argues that “regardless of the court’s finding that trial counsel was not
deficient for relying upon Dr. Bailey, trial counsel was . . . deficient for failing to
recognize the[] red flags” of Brown’s longtime struggles with drug addiction and
her lifelong traumas. She contends that these red flags would have led reasonable
trial counsel to investigate further and to retain and present the testimony of an
addiction specialist and a neuropsychologist. We affirm because competent,
substantial evidence supports the circuit court’s finding that trial counsel was not
deficient.
even that mitigation falls within the scope of trial counsel’s penalty phase
presentation.
- 41 -
This Court has long held that “defense counsel is entitled to rely on the
evaluations conducted by qualified mental health experts, even if, in retrospect,
those evaluations may not have been as complete as others may desire.” Darling v.
State, 966 So. 2d 366, 377 (Fla. 2007) (finding no deficiency where “[t]he
testimony presented during the postconviction evidentiary hearing may generally
be described as only a more detailed presentation of the mitigation that was
actually presented during the penalty phase”).
Although Brown argues her case is similar to Ellerbee v. State, 232 So. 3d
909 (Fla. 2017), where this Court held that trial counsel was ineffective in the
presentation of mental health mitigation, it is not. In Ellerbee, the penalty-phase
jury heard “conflicting evidence and unsubstantiated claims that [the defendant]
suffered from various mental disorders,” id. at 928, and the penalty-phase mental
health expert “did not provide a detailed explanation of the effect that abuse and
drug use can have on cognitive development.” Id. at 931. Instead, pursuant to trial
counsel’s direction, Ellerbee’s penalty-phase mental health expert “focus[ed] on
fetal alcohol syndrome while simultaneously presenting testimony directly
contradicting its existence.” Id. Unlike Ellerbee, where the “contradictory
evidence would have confused the jury at best and, at worst, raised suspicions of
defense counsel’s honesty,” id. at 932, the theme of Brown’s penalty phase was
that her lifelong traumatic experiences (including childhood physical and sexual
- 42 -
abuse) and her longtime struggles with addiction (including multiple relapses and
use of crack on the day of the crime) affected her up through the time of the crime.
Indeed, as explained above, the circuit court denied Brown’s separate claim
that trial counsel was ineffective with respect to the mitigation investigation and
presentation, in part, because Brown “failed to demonstrate how penalty-phase
counsel did not ‘link’ [Brown’s] background to its effect on [her] during the
crime.” In so ruling, the circuit court found that the record supports trial counsel’s
testimony at the evidentiary hearing that “she thought [the defense expert] Dr.
Bailey covered [Brown’s] life history from the beginning to the time of the crime,
and linked [Brown’s] life history to the crime itself.” Competent, substantial
evidence supports the circuit court’s findings. For example, Dr. Bailey testified
during the penalty phase to the “stressors” that would have affected Brown at the
time of the crime, including “repeated traumas, addictions, abusive relationships,
exposure to violence, a lot of sexual victimization, both in childhood being
prostituted and adulthood[,] [and a] lot of community negative influence and
crime, and [she explained that] all of those things c[a]me together.” Dr. Bailey
also testified that Brown’s childhood experiences would have affected her into
adulthood, that trauma affects brain development, and that “[t]he bottom line is
trauma is cumulative.” Moreover, as demonstrated in this Court’s decision in
Brown’s direct appeal, trial counsel’s penalty-phase presentation resulted in the
- 43 -
trial court’s finding of numerous mitigating circumstances related to Brown’s
traumatic experiences and struggles with addiction, including the long-term effects
of chronic cocaine use on her brain and that she was using cocaine on the day of
the crime. See Brown, 143 So. 3d at 401.
That new experts retained for postconviction would render more favorable
opinions based on essentially the same information presented during the penalty
phase does not render trial counsel deficient for relying on the opinions of Dr.
Bailey. See Darling, 966 So. 2d at 377.
Accordingly, we affirm the circuit court’s denial.
(4) Cumulative Prejudice
Brown next argues that the circuit court erred in denying her cumulative
error claim because, cumulatively, trial counsel’s deficient performance in the guilt
and penalty phases deprived her of a fundamentally fair trial. As explained above,
we conclude that the available impeachment evidence of Heather Lee’s prior
convictions went unused by trial counsel, and we agree with Brown that trial
counsel was deficient for failing to present Terrance Woods and Darren Lee to
impeach Heather Lee’s trial testimony and implicate her as the ringleader.
Assuming counsel was deficient for failing to impeach Lee with her prior
convictions and taking into account counsel’s deficiencies in failing to call Woods
and Darren Lee as witnesses, we must “consider the impact of these errors
- 44 -
cumulatively to determine whether [the defendant] has established prejudice.”
Sparre, 289 So. 3d at 847 (quoting Parker, 89 So. 3d at 867).
They do not. All of trial counsel’s deficiencies center around the failure to
discredit Lee and her version of events. The likelihood that the jury placed high
value on Lee’s testimony is suspect, at best, because the jury knew that, despite
describing herself as a victim and minimizing her role in the victim’s murder, Lee
had pleaded guilty to the victim’s second-degree murder in exchange for testifying
against Brown. Nevertheless, it is true that but for trial counsel’s deficiencies, the
jury could have relied on Heather Lee’s prior convictions and testimony from
Terrance Woods and Darren Lee to further discount Lee’s testimony and conclude
that her role in the crime was more substantial than she admitted during the guilt
phase. However, there is no reasonable probability that but for trial counsel’s
deficiencies, individually or cumulatively, the outcome would have been different.
Regarding the guilt phase, the evidence of Brown’s involvement and
culpability in the victim’s murder under both theories of premeditated and felony
murder is overwhelming. For example, the victim named “Tina [Brown], Heather
[Lee], and Britnee [Miller]” as her attackers and told a paramedic that “they poured
gas on her and set her on fire.” Although the paramedic acknowledged on cross-
examination by trial counsel that the victim “didn’t actually breakdown what each
one of these people did to her,” the victim’s statement that “they” did it, at a
- 45 -
minimum, indicates that in her experience her attackers were acting in concert.
Moreover, M.A. testified that Brown was the primary aggressor based on her
observations at the trailer where the attack began. According to M.A., Brown
attacked the victim with a stun gun, held the victim’s hands behind her back,
forced the victim into the trunk, and screamed at the victim about calling Crime
Stoppers. Consistent with M.A.’s testimony, Brown’s DNA was on the stun gun,
Brown’s trailer and vehicle were used in the crime, and Brown drove the victim to
the area where she was lit on fire. Additionally, both Brown and her daughter,
Miller, made incriminating statements: Miller told M.A. that they were going to
kill the victim right before the attack began, and, within days of the crime, while
the victim was still alive in the hospital, Brown told Pamela Valley that she wanted
the victim “finish[ed] off.” Accordingly, there is no reasonable probability of a
different verdict.
Regarding the penalty phase, impeaching Lee with her prior convictions and
calling Terrance Woods and Darren Lee to impeach Lee’s testimony and implicate
her as the ringleader during the guilt phase would not eliminate the overwhelming
evidence of Brown’s involvement and culpability in the victim’s murder from the
sources other than Lee, such as those discussed above. Moreover, during the
penalty phase, the jury heard even more evidence negating that Brown’s role in the
crime was minor, including testimony from Brown’s own mental health expert
- 46 -
that, despite describing Heather Lee as “the escalator,” Brown “was very frank
about her role” in the victim’s murder, and “[did] not deny being an aggressor,
being involved, . . . [or] what she did.” Nor would counsel’s deficiencies with
respect to Lee change the application of the weighty evidence in aggravation to
Brown. Accordingly, there is no reasonable probability of a different sentence.
Because Brown has failed to show that trial counsel’s deficiencies,
individually or cumulatively, establish the prejudice required by Strickland, we
affirm the circuit court’s denials of relief with respect to each of the individual
claims at issue and with respect to Brown’s cumulative error claim.
B. Newly Discovered Evidence
Brown next argues that the circuit court erred in denying her claim of newly
discovered evidence related to Heather Lee’s credibility as a witness and Lee’s role
in the murder. Specifically, Brown points to an email from Lee’s trial attorney,
which was disclosed to Brown’s counsel without authorization; posttrial
confessions by Lee to fellow inmates; and evidence of Lee’s pattern of violence
against individuals, like the victim, who engaged in affairs with her significant
others. Brown argues that she is entitled to a new trial because this evidence
would probably result in her acquittal or a reduced sentence. However, as
explained below, portions of Brown’s claim involve evidence that is inadmissible
and allegations that are procedurally barred. Although portions of Brown’s
- 47 -
allegations do involve newly discovered evidence, it is not of such a nature that it
would probably produce an acquittal on retrial. Accordingly, we affirm the circuit
court’s denial of relief.
(1) The email from Heather Lee’s attorney is inadmissible.
Brown argues that the circuit court erred in ruling inadmissible an email
from Heather Lee’s trial attorney to Lee’s mitigation specialist. We disagree.
Below, Lee’s trial attorney joined a motion filed by the State to exclude the
email under section 90.502(2), Florida Statutes (2019). Section 90.502(2) provides
that “[a] client has a privilege to refuse to disclose, and to prevent any other person
from disclosing, the contents of confidential communications when such other
person learned of the communications because they were made in the rendition of
legal services to the client.” This privilege may be asserted by a lawyer on behalf
of the client. § 90.502(3)(e).
The circuit court found that section 90.502(2) applies to require exclusion of
the email, further finding that the attorney-client privilege had not been waived and
noting that Brown had presented no evidence that Lee sought or obtained her
attorney’s services to enable her to commit a crime or fraud so as to establish an
exception to this rule under section 90.502(4)(a). Indeed, Brown has not identified
any such evidence or identified any other authority that would nevertheless allow
- 48 -
the email to be admitted. Consequently, she has failed to show error in the circuit
court’s ruling.
Although Brown asks us to disregard section 90.502(2) in the interests of
due process and justice, her general arguments to this effect—unsupported by any
case law addressing similar or analogous circumstances—are insufficient to
overcome this well-established evidentiary rule, adopted in the broader interests of
justice and in furtherance of the crucial relationship of client and counsel. See
Horning-Keating v. State, 777 So. 2d 438, 445 (Fla. 5th DCA 2001) (“[One of t]he
oldest and most revered principles of Anglo[-]American law is the attorney-client
privilege . . . . The purpose of the privilege is to encourage broad communication
between a lawyer and the client and thus promote the broader public interest in the
proper administration of justice.” (citing Upjohn Co. v. United States, 449 U.S. 383(1981)); see also R.L.R. v. State, 116 So. 3d 570, 573 n.3 (Fla. 3d DCA 2013)
(noting that the attorney-client privilege “is an interest traditionally deemed worthy
of maximum legal protection”). Even if Brown could overcome this evidentiary
rule, the email is inadmissible for an additional reason, which was raised by the
- 49 -
state below and has not been addressed by Brown on appeal: the email is
inadmissible hearsay. See §§ 90.801-.802, Fla. Stat. (2019). 13
Accordingly, we affirm the circuit court’s order excluding the email.
(2) The circuit court properly refused to consider Tajiri Jabali’s testimony as
newly discovered evidence.
Brown relies on testimony provided by Tajiri Jabali at the postconviction
evidentiary hearing as newly discovered evidence of (1) Heather Lee’s motive for
and role in the victim’s murder and (2) Heather Lee’s pattern of violent conduct
against those with whom Lee’s significant others “cheat.” However, the circuit
court refused to consider Jabali’s testimony as newly discovered evidence on the
ground that “there is no claim regarding Tajiri Jabali alleged in [Brown’s] motion.”
Because Brown waited until her reply brief to challenge the circuit court’s ruling
on this issue, Brown has waived any challenge to it. See Hoskins v. State, 75 So.
3d 250, 257 (Fla. 2011).
Moreover, even without the waiver, we would still affirm on the record
before us. By its plain language, rule 3.851(e)(1) provides that “[e]ach claim or
subclaim shall be separately pled” in the initial postconviction motion. (Emphasis
added). A defendant cannot plead a claim of newly discovered evidence without
13. An appellate court may affirm a correct result reached by a lower court
for any reason that is supported by the record, even if it is not the reason the lower
court articulated for its ruling. Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002).
- 50 -
alleging that the specific evidence at issue could not have been discovered at trial
with due diligence and that the specific evidence at issue is of such a nature that it
would probably produce an acquittal on retrial. See Jones v. State, 709 So. 2d 512,
521 (Fla. 1998). Brown’s motion did not plead a claim of newly discovered
evidence regarding Jabali, and there was no argument raised below as to why the
circuit court should have nevertheless considered Jabali’s testimony newly
discovered evidence. Accordingly, we would not reverse the circuit court’s ruling
on this issue, even if it were properly before us.
(3) The evidence properly before the Court does not warrant relief.
The evidence properly before the Court as alleged newly discovered
evidence is the following: (1) Jessica Swindle’s testimony that, while in prison,
Heather Lee told her, without remorse, that she personally set the victim on fire
because the victim was sleeping with her “baby’s dad” and that Brown and Miller
“didn’t do anything”; (2) Shayla Edmonson’s testimony that, while in prison,
Heather Lee told her that she “killed someone and she would do it again because
the people that were involved in the case . . . were sleeping with her husband . . .
and she set the girl on fire”; and (3) Nicole Henderson’s testimony that Heather
Lee would fight the women her prison girlfriend cheated on her with. When
subjected to cross-examination, Swindle and Edmonson agreed that it seemed like
Lee was trying to be tough.
- 51 -
As we explained in Jones, 709 So. 2d at 521, a claim of newly discovered
evidence is governed by the following two-part test:
First, in order to be considered newly discovered, the evidence “must
have been unknown by the trial court, by the party, or by counsel at
the time of trial, and it must appear that defendant or his counsel could
not have known [of it] by the use of diligence.” Torres-Arboleda v.
Dugger, 636 So. 2d 1321, 1324-25 (Fla. 1994).
Second, the newly discovered evidence must be of such nature
that it would probably produce an acquittal on retrial. Jones, 591 So.
2d . . . 911, 915 [(Fla. 1991)]. To reach this conclusion the trial court
is required to “consider all newly discovered evidence which would
be admissible” at trial and then evaluate the “weight of both the newly
discovered evidence and the evidence which was introduced at the
trial.” Id. at 916.
This test applies not only to the guilt phase of a first-degree murder trial, but also
to the penalty phase; when the penalty phase is at issue, the second prong requires
a determination of whether the newly discovered evidence “would probably yield a
less severe sentence” on resentencing. Swafford v. State, 125 So. 3d 760, 767 (Fla.
2013).
First Prong of Jones
Brown argues that the circuit court erred in denying relief based on its
conclusion that the testimony provided by Swindle, Edmonson, and Henderson
fails the first prong of the Jones test. We agree with Brown with respect to the
testimony of Swindle and Edmonson. Lee’s confessions to these women could not
have been discovered with due diligence at the time of trial because they did not
- 52 -
yet exist.14 Although Brown and her counsel knew that Lee had made a similar
statement to another person, Wendy Moye, and if Lee’s confessions are true,
Brown would have known that fact, the defense’s knowledge of the substance of
these statements does not disqualify them from being considered newly discovered
evidence. See Archer v. State, 934 So. 2d 1187, 1194 (Fla. 2006) (explaining that a
defendant’s knowledge at the time of trial of the facts that would be presented by a
witness as newly discovered evidence does not invalidate a claim of newly
discovered evidence, as the “appropriate question” is whether the defendant “was
or should have been aware of the existence of” the evidence offered to prove those
facts). They are additional pieces of evidence that have been discovered since trial
and relate to the circumstances that existed at the time of trial and, as such,
constitute newly discovered evidence. See id. Also, they add information not
contained in Moye’s testimony: that the reason Lee participated was that the victim
was sleeping with Lee’s husband, that Brown and Miller “didn’t do anything,” that
Lee was not remorseful and in fact said she would do it again, and that Brown and
Miller were sleeping with her husband. Therefore, because Lee’s confessions to
14. The circuit court ruled that none of this evidence was newly discovered
precisely because it did not exist at the time of trial. This ruling is rooted in
language we used in Porter v. State, 653 So. 2d 374, 380 (Fla. 1995), from which
we have since receded, Wyatt v. State, 71 So. 3d 86, 100 (Fla. 2011).
- 53 -
Swindle and Edmonson satisfy the first prong of Jones, the circuit court should
have analyzed them under the second prong.
The testimony of Nicole Henderson, however, is of a different nature and
does not satisfy the first prong of Jones. This testimony pertains to distinct
criminal acts committed by Lee after trial that do not relate to the circumstances
existing at the time of trial and, contrary to Brown’s argument, would not satisfy
the reverse Williams rule. We have previously held that unrelated posttrial events
do not qualify as newly discovered evidence. See Kearse v. State, 969 So. 2d 976,
987 (Fla. 2007) (affirming the denial of a newly discovered evidence claim where
Kearse alleged that an expert’s conduct in a subsequent, unrelated case
demonstrated that expert’s testimony in the Kearse’s case was biased); Porter v.
State, 653 So. 2d 374, 379-80 (Fla. 1995) (holding that Porter’s good conduct in
prison was not newly discovered evidence), receded from on other grounds by
Wyatt v. State, 71 So. 3d 86, 99-100, 100 n.13 (Fla. 2011). Notably, contrary to the
allegations of Brown’s motion, Henderson’s testimony does not include statements
made by Lee comparing a woman she attacked or threatened in prison to the victim
or admitting a larger role in the victim’s murder than Lee claimed at trial.
Therefore, Henderson’s testimony about Lee’s conduct in prison is simply
evidence of unrelated posttrial events and does not satisfy the first prong of Jones.
- 54 -
Accordingly, only the testimony of Swindle and Edmonson is the newly
discovered evidence that must be considered under the second prong of Jones.
Second Prong of Jones
An assessment of the second prong of Jones includes consideration of
“whether the evidence goes to the merits of the case or whether it constitutes
impeachment evidence,” “whether the evidence is cumulative to other evidence in
the case,” and “the materiality and relevance of the evidence and any
inconsistencies in the newly discovered evidence.” Jones, 709 So. 2d at 521.
When evaluating these factors to determine whether the newly discovered evidence
would probably result in an acquittal or a lesser sentence on retrial, see id.;
Swafford, 125 So. 3d at 767, this Court considers it in conjunction with not only
the evidence already presented at trial but also any new evidence the movant has
developed in postconviction proceedings that could be introduced at a new trial,
including evidence that has not been considered on its own because it was the
subject of a procedurally barred claim. See Hildwin v. State, 141 So. 3d 1178,
1181, 1184 (Fla. 2014). In other words, this Court examines the newly discovered
evidence at issue in light of a “total picture” of the case that could be presented at a
new trial. See id. at 1184.
Brown argues that the testimony of Swindle and Edmonson constitutes
valuable impeachment evidence that would probably result in an acquittal of first-
- 55 -
degree murder or a life sentence for Brown. More specifically, Brown contends
that Lee’s statements to Swindle and Edmonson would impeach Lee because they
are inconsistent with her trial testimony and reveal her motive for the murder. We
agree with Brown that Swindle’s and Edmonson’s testimony of Lee’s statements
regarding her motive for, role in, and feelings about the murder is materially
inconsistent with Lee’s trial testimony. Specifically, it is inconsistent with Lee’s
portrayal of herself as an innocent bystander who tried to warn Zimmerman—her
“good friend[]” whom she would never harm—of the impending attack as it began
and who tried to run away herself but was nevertheless forced to go to the scene of
the brutal beating and murder, where she encouraged her friend to run and
contemplated escaping herself but was too afraid to make an attempt. Because
Swindle’s and Edmonson’s testimony of Lee’s posttrial statements is materially
inconsistent with this account, it would be admissible as impeachment evidence
under section 90.608(1). Cf. Izquierdo v. State, 890 So. 2d 1263, 1265-67 (Fla. 5th
DCA 2005) (affirming a trial court’s decision to admit testimony as to previous
statements of a witness that the defendant had been violent toward her and others
where she testified at trial that she had a good relationship with him, that he was
“lovable and tender” and “nice,” that he had never been controlling, and that she
had never been afraid of him); see also Pearce v. State, 880 So. 2d 561, 569 (Fla.
2004) (explaining that impeachment material under section 90.608(1) does not
- 56 -
have to “directly contradict” the witness’s testimony as long as it is “materially
different” from it).
In addition, we agree with Brown that the testimony that Brown and Miller
were sleeping with Lee’s husband would be admissible for impeachment purposes.
Specifically, it would be admissible under section 90.608(2) to impeach Lee
concerning her motive to place the blame on them. Cf. Green v. State, 691 So. 2d
49, 50 (Fla. 4th DCA 1997) (holding that the defendant in a sexual battery case
should have been allowed to elicit testimony that the alleged victim, a witness in
the case, had asked the defendant’s wife if she could think of a way to “get rid of”
the defendant so that the victim could move in with the wife); see also Gibson v.
State, 661 So. 2d 288, 291 (Fla. 1995) (“Our evidence code liberally permits the
introduction of evidence to show the bias or motive of a witness [in testifying].”) 15
At a retrial, the testimony of Edmonson and Swindle would combine with
the impeachment evidence already presented at trial through the cross-examination
of Lee and the testimony of Wendy Moye. Moye’s trial testimony revealed
statements Lee made in jail that are substantively similar to the statements she later
made to Edmonson and Swindle regarding the actions she took in furtherance of
15. To the extent Brown is suggesting that the testimony of Swindle and
Edmonson could be admitted as substantive evidence of Lee’s motive to kill the
victim, she has not explained why the testimony would not constitute inadmissible
hearsay if offered for that purpose.
- 57 -
the murder. As noted in our analysis of the first prong of the Jones test, however,
the new evidence would also go further than Moye’s testimony. This new
evidence would challenge Lee’s credibility as to her relationship with the victim
and role in the events by providing her stated reason for the dominant role she
denied at trial but subsequently claimed; indicate not only that she was dominant
but that, in her words, Brown and Miller “didn’t do anything”; show her lack of
remorse for her participation in the brutal beating, burning, and killing of
Zimmerman, contrary to her trial claim that she would not “harm a hair on
[Zimmerman’s] head”; and suggest an additional reason that she may want to
blame Brown and Miller.
The efficacy of the testimony of Swindle and Edmonson would be enhanced
by the testimony that could be presented from Darren Lee and Terrance Woods
that Lee has made inconsistent statements about her involvement in the murder and
indeed stated a couple of days before the murder that she intended to kill the victim
for having an affair with her husband—evidence Brown now relies on as
substantive proof of Lee’s role and motive. Furthermore, Brown would be able to
present impeachment evidence similar to that of Swindle and Edmonson from
Jabali, including a confession by Lee that she was the “ringleader”; comments by
Lee, which Jabali read in Lee’s journal, that she forced Brown and Miller, who
were scared, “[j]ust to do simple things,” and bribed Brown with drugs, along with
- 58 -
a statement that the victim “got what she deserved”; and a threat by Lee to do to
other inmates what she had done to her “baby daddy’s mistress” if they became
involved with Jabali, who was in a relationship with Lee at the time.
We recognize that, although the new evidence presented through Swindle
and Edmonson would be somewhat cumulative to the impeachment evidence
presented through Moye, cf. Williamson v. Dugger, 651 So. 2d 84, 89 (Fla. 1994),
it would likely have some effect, given the importance of the issue on which Lee
would be impeached and the number and diversity of additional witnesses—not
only those who met Lee in prison but also those who knew her before the crime—
who could come forward on the matter at a retrial. Thus, at a new trial where
Swindle and Edmonson’s testimony was presented, Lee would have even less
credibility than she had at Brown’s original trial, and it would be more difficult for
the State to rely on the position it took at trial that Brown was the one with motive
and the one who poured gasoline on the victim and lit her on fire, while Lee’s
involvement was comparatively minimal.
Nevertheless, the newly discovered evidence must be considered in light of
the other evidence presented at trial and available for any retrial bearing on
Brown’s involvement and culpability in the victim’s murder.
When the victim first emerged from scene of the burning, she named two
people as the perpetrators—Tina Brown and “Heather”—and said that they
- 59 -
dragged her out of the house, “tased” her, beat her in the head with a crowbar, and
then set her on fire. She repeated those two names several times and told where
those individuals lived. Similarly, the victim told a paramedic that “Tina, Heather,
and Britnee” poured gasoline on her and set her on fire. The victim did not
distinguish among the perpetrators in terms of who did what, which suggests that
in her experience, they were all acting in concert.
M.A., on the other hand, testified that from her observations at the trailer,
Brown was the primary aggressor, although Lee also participated by putting a sock
in the victim’s mouth. Brown is the one whose trailer and vehicle were used in the
crime, and she is the one M.A. heard screaming at the victim about calling Crime
Stoppers. She is the one who, according to M.A., operated the stun gun, held the
victim’s hands behind her back, and forced the victim into the trunk. Consistent
with M.A.’s testimony, Brown’s DNA was on the stun gun.
In addition to M.A.’s testimony and the forensic evidence, there were
incriminating statements by Brown and her daughter. Just before the crime started,
Brown’s daughter, Miller, told M.A. that they were going to kill the victim. And
Pamela Valley testified, albeit not without impeachment, that, days after the crime
was complete, Brown wanted the victim “finish[ed] off.” Further, in any retrial,
Brown’s new jury would hear compelling evidence against her that her original
jury did not: Brown admitted at the Spencer hearing that she “was one of the ones
- 60 -
who participated in taking [Zimmerman’s] life” and commented that
“[Zimmerman] didn’t deserve it at all.”
In consideration of the foregoing evidence that is independent of Lee’s
testimony, when considered cumulatively with all of the evidence that would be
admissible in a new trial, the newly discovered evidence from Edmonson and
Swindle fails the second Jones prong as to the guilt phase, as the evidence is not of
such a nature that it would probably produce an acquittal on retrial. In fact, the
impeachment of Lee would do little, if anything, to disturb the evidence of felony
murder. While Swindle did testify that Lee said that the other two codefendants
“didn’t do anything,” significant evidence belies that claim.
The newly discovered evidence fails the second Jones prong as to the
sentencing question as well. In reaching this conclusion, we recognize that the
testimony of Swindle and Edmonson, along with corroborating evidence, would
impeach Lee on a major point the State relied on in support of the death penalty:
that Brown was the “main aggressor” and the one who lit the fire. Indeed, the trial
court relied on this point in its sentencing order, concluding in its discussion of the
HAC aggravator that, “[o]f all [Brown’s] flagitious acts, . . . the cruelest were her
actions in dousing Audreanna Zimmerman with gasoline and setting her on fire.”
The trial court also reiterated this point in its discussion of whether Brown was a
minor participant in the crime, stating, “The evidence introduced at trial proves
- 61 -
[Brown] was the leader of the efforts to murder Audreanna Zimmerman. It is clear
[Brown] poured gasoline on Zimmerman and set [her] on fire.” Notably, Lee’s
testimony was the only evidence that unambiguously singled out Brown as the
person who lit the victim on fire, but not the only evidence that she was a, if not
the, primary aggressor, at least at the trailer.
Considering the attention given to the facts that Brown was the one who lit
the victim on fire and was the main aggressor—both as points supporting the death
penalty and as an explanation for the different treatment of Lee—we believe the
additional impeachment of Lee might result in a lesser sentence at a retrial.
However, it cannot be said that it would probably result in a lesser sentence. In
delivering that additional impeachment testimony, Swindle and Edmonson would
also testify that Lee seemed to be trying to act tough, as would Jabali in delivering
her corroborating impeachment testimony concerning Lee’s verbal statements to
her. At the same time, Lee’s posttrial claim that Brown and Miller “didn’t do
anything” would be obliterated by the forensic evidence, the victim’s dying
declaration, and the eyewitness testimony of M.A. concerning Brown’s role in the
events at her trailer. Although there would be a more substantial question as to
whether Brown actually lit the fire and acted as the primary aggressor, especially
once the testimony of Darren Lee and Terrance Woods was added, all the evidence
that the murder itself was heinous, atrocious, or cruel—a weighty aggravating
- 62 -
factor—would still stand, and the new evidence would not carry any significant
probability of showing Brown to have been a minor participant. The subjective
assessment of the jurors, and perhaps the trial court, as to whether Brown should
receive a death sentence might change, but the possibility that it would change
does not meet the standard required for a new trial, which is a showing that it
would probably change. See Swafford, 125 So. 3d at 767.
Accordingly, we affirm the circuit court’s denial of relief.
C. Hurst
In the final issue raised on appeal, Brown argues that the circuit court erred
in summarily denying her claim that she is entitled to relief from her death
sentence under Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v. State, 202 So.
3d 40 (Fla. 2016). After the circuit court denied relief, we “recede[d] from Hurst
v. State except to the extent it requires a jury unanimously to find the existence of a
statutory aggravating circumstance beyond a reasonable doubt.” State v. Poole, 45
Fla. L. Weekly S41, S48 (Fla. Jan. 23, 2020), clarified, 45 Fla. L. Weekly S121
(Fla. Apr. 2, 2020). Although the required jury finding does not exist in Brown’s
case, we agree with the circuit court that the error is harmless beyond a reasonable
doubt.16
16. In Mosley v. State, 209 So. 3d 1248, 1283 (Fla. 2016), we held that
Hurst v. Florida and Hurst v. State retroactively apply to sentences of death that
became final after the United States Supreme Court decided Ring v. Arizona, 536
- 63 -
At trial, the State argued that Brown was guilty of first-degree murder under
both premeditated and felony murder theories and presented uncontroverted
evidence that the capital felony was committed while Brown was engaged, or was
an accomplice, in the commission of a kidnapping. Any jury that found, based on
the State’s presentation, that Brown was guilty of first-degree murder could not
have logically concluded that Brown was not also guilty of kidnapping, whether as
the primary aggressor or an accomplice. Accordingly, we hold that, under the
circumstances of this case, there is no reasonable doubt that a “rational jury,”
properly instructed, would have found beyond a reasonable doubt the existence of
the statutory aggravating circumstance that the capital murder was committed
while Brown was engaged in the commission of a kidnapping. Galindez v. State,
955 So. 2d 517, 522 (Fla. 2007) (quoting Neder v. United States, 527 U.S. 1, 19
(1999)); see also State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla. 1986). Because
the existence of a single statutory aggravating circumstance would render Brown
eligible for imposition of the death penalty, see Poole, 45 Fla. L. Weekly at 545-
46, it is unnecessary to address any of the other statutory aggravators found by the
U.S. 584 (2002). In a footnote in its answer brief, the State takes issue with
Mosley, which applies to Brown because her sentence of death became final after
Ring. However, we decline to revisit precedent based on assertions in a footnote.
Cf. Simkins Indus., Inc. v. Lexington Ins. Co., 714 So. 2d 1092, 1093 (Fla. 3d DCA
1998) (explaining that referencing a matter in a footnote “does not elevate the
matter to a point on appeal”).
- 64 -
trial court to conclude that the sentencing error in Brown’s case is harmless.
Accordingly, we affirm the circuit court’s denial.
III. HABEAS PETITION
In her habeas petition, Brown argues that appellate counsel was ineffective
on direct appeal for failing to raise claims of fundamental error based on several
statements made by the prosecutor during the State’s rebuttal closing argument at
trial that Brown now contends amount to prosecutorial misconduct. Because we
disagree with Brown that these statements individually or cumulatively amount to
fundamental error, we deny her habeas petition.
In general, claims of ineffective assistance of appellate counsel are properly
presented in a petition for writ of habeas corpus, Baker v. State, 214 So. 3d 530,
536 (Fla. 2017); Wickham v. State, 124 So. 3d 841, 863 (Fla. 2013), and this Court
has explained the applicable standard of review as follows:
“The standard of review for ineffective appellate counsel claims
mirrors the Strickland standard for ineffective assistance of trial
counsel.” [Wickham, 124 So. 3d at 863]. Specifically, to be entitled
to habeas relief on the basis of ineffective assistance of appellate
counsel, the defendant must establish
[first, that] the alleged omissions are of such magnitude
as to constitute a serious error or substantial deficiency
falling measurably outside the range of professionally
acceptable performance and, second, [that] the deficiency
in performance compromised the appellate process to
such a degree as to undermine confidence in the
correctness of the result.
- 65 -
Bradley v. State, 33 So. 3d 664, 684 (Fla. 2010) (quoting Pope v.
Wainwright, 496 So. 2d 798, 800 (Fla. 1986)).
England v. State, 151 So. 3d 1132, 1140 (Fla. 2014). Further, appellate counsel is
not ineffective for failing to raise meritless claims or issues on appeal that were not
properly raised in the trial court and are not fundamental error. Valle v. Moore,
837 So. 2d 905, 907-08 (Fla. 2002).
An error is considered fundamental if it “reaches 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.” Boyd v. State, 200 So. 3d 685, 708
(Fla. 2015) (plurality opinion) (quoting Rodriguez v. State, 919 So. 2d 1252, 1282
(Fla. 2005)); see Doty v. State, 170 So. 3d 731, 743 (Fla. 2015) (explaining that the
standard for fundamental error with respect to the sentence is “one that ‘reaches
down into the validity of the trial itself’ and that a sentence of death ‘could not
have been obtained without the assistance of the alleged error’ ” (quoting
Snelgrove v. State, 107 So. 3d 242, 257 (Fla. 2012))); see also Chandler v. State,
702 So. 2d 186, 191 n.5 (Fla. 1997) (describing fundamental error as error that is
“so prejudicial as to vitiate the entire trial”).
Brown’s habeas petition references two statements by the prosecutor that
were arguably improper. First, the prosecutor likely crossed the line in referring to
Brown, once, as a “cold-blooded murderer.” See Morris v. State, 233 So. 3d 438,
447, 449 (Fla. 2018) (holding that the prosecutor’s statements referring to the
- 66 -
defendant as “cold-blooded,” “stone cold,” and “ruthless” may have crossed the
line). However, this statement was a single occurrence, and we have declined to
find fundamental error based on comparable statements. See id.; see also Davis v.
State, 928 So. 2d 1089, 1127 (Fla. 2005) (holding prosecutor’s references to the
defendant as “a cagey little murderer” and a “[l]ittle robber, cagey little thief” did
not constitute fundamental error).
Second, and presenting a closer call as to whether the statement is even
improper, is the prosecutor’s rhetorical question asking how Doyle, who was the
State’s witness, would have learned information about the victim’s murder apart
from gaining it from Brown. On the one hand, this argument could be viewed as
improper because the jury did not know Doyle had stated in a pretrial deposition—
at which the prosecutor was present—that she had heard on the news that “there
was a girl that was lit on fire and that she was taken by helicopter and that before
she died she said the . . . names [of her killers].” See Craig v. State, 685 So. 2d
1224, 1229-30 (Fla. 1996) (recognizing that prosecutors have a duty not to present
false or misleading arguments to the judge or jury); Thompson v. State, 273 So. 3d
1069, 1077 (Fla. 1st DCA 2019) (“Improper prosecutorial ‘vouching’ for the
credibility of a witness occurs where a prosecutor suggests that she has reasons to
believe a witness that were not presented to the jury, or, stated differently, where
the prosecutor implicitly refers to information outside the record.” (quoting
- 67 -
Jackson v. State, 89 So. 3d 1011, 1018 (Fla. 4th DCA 2012))). On the other hand,
this argument could be viewed as properly directed at the specific information
about the murder Doyle testified at trial to having learned from Brown, including
the names of the individuals involved and details of the crime, such as that the
victim was beaten and attacked with a stun gun. Regardless, the record establishes
that Doyle’s testimony contained details of the victim’s murder that were not
among the general information that Doyle attributed to the news report during her
deposition. Specifically, Doyle testified in her pretrial deposition that all she heard
on the news was that a “girl” was lit on fire and that before she died she said “the
girls’ names,” noting that the news report did not release the names. At trial,
Doyle testified that Brown told her about details of the victim’s murder, namely
that Brown and her daughter beat the victim with a tire iron, “tazed” the victim,
and caught the victim on fire, and that Miller accidentally set herself on fire during
the crime. Although there is no indication in the record that Miller caught herself
on fire during the crime, the other details Doyle testified to regarding the victim’s
murder indicate that Doyle learned of the details of the murder from Brown and
not the news. Accordingly, even if improper, the prosecutor’s statement was not
so prejudicial as to vitiate the entire trial. See Chandler, 702 So. 2d at 191 n.5.
Moreover, even assuming that both of the prosecutor’s statements were
improper, when “viewed cumulatively in light of the record in this case,” they do
- 68 -
not “reach[] the critical mass of fundamental error” that is so prejudicial as to
vitiate the entire trial. Brooks v. State, 762 So. 2d 879, 899 (Fla. 2000) (quoting
Cochran v. State, 711 So. 2d 1159, 1163 (Fla. 4th DCA 1998)); Chandler, 702 So.
2d at 191 n.5.
Accordingly, because appellate counsel was not ineffective for failing to
challenge on direct appeal unpreserved issues that do not amount to fundamental
error, see Valle, 837 So. 2d at 908, we deny Brown’s habeas petition.17
17. The other statements that Brown references in her habeas petition were
not improper and therefore could not have supported a claim of fundamental error.
Specifically, first, the prosecutor’s statement that Brown “baited” the victim “into
the lion’s den by telling her things were okay” does not cross the line into an
improper inflammatory argument on the facts of this case. Rather, the prosecutor
asked the jury to make a permissible inference based on the evidence that Brown
“lured [the victim] into her home under false pretenses.” Brown, 143 So. 3d at
407. Second, the prosecutor did not improperly belittle defense counsel by
disparaging his argument that Brown was not guilty of first-degree murder.
Rather, the prosecutor permissibly explained why defense counsel’s arguments
seeking a conviction of second-degree murder were not supported by the evidence
adduced at trial. Third, the prosecutor did not improperly vouch for the credibility
of State witnesses Valley and Doyle by asking what motive Valley had to make up
her testimony and what Doyle had to gain by testifying. Rather, the prosecutor’s
arguments were proper responses to defense counsel’s credibility attacks on these
witnesses in light of the evidence presented at trial. Finally, the prosecutor did not
improperly demand justice for the victim or the victim’s family. Rather, the
prosecutor’s reference to “justice” is fairly read as a response to defense counsel’s
explanation of the jury’s role, and it was made in the context of addressing the
verdict that is required when the State meets its burden to prove guilt beyond a
reasonable doubt.
- 69 -
IV. CONCLUSION
For the foregoing reasons, we affirm the circuit court’s order denying
postconviction relief and deny Brown’s habeas petition.
It is so ordered.
POLSTON, LAWSON, MUÑIZ, and COURIEL, JJ., concur.
CANADY, C.J., concurs in result with an opinion.
LABARGA, J., concurs in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
CANADY, C.J., concurring in result.
I agree with the per curiam opinion except for the analysis of the Hurst
issue. Although I agree that the Hurst error here is harmless, I also adhere to the
view that “[t]he new rule articulated in Hurst v. Florida—which simply requires
that the jury find an aggravator—is an evolutionary refinement in the law that does
not cast doubt on the veracity or integrity of penalty phase proceedings resulting in
death sentences that are now final” and that the new rule therefore should not be
given retroactive effect. Mosley v. State, 209 So. 3d 1248, 1291 (Fla. 2016)
(Canady, J., concurring in part and dissenting in part).
Poole—which corrected this Court’s misinterpretation of Hurst v. Florida—
dismantled the foundation for the majority’s analysis in Mosley. After Poole,
Mosley is the ghost of a precedent. The retroactivity issue presented by this case
therefore should be determined in light of Poole. And Poole makes clear that
- 70 -
Hurst v. Florida was an evolutionary refinement in the law that should not be
applied retroactively.
An Appeal from the Circuit Court in and for Escambia County,
Gary L. Bergosh, Judge - Case No. 172010CF001608XXXAXX
And an Original Proceeding – Habeas Corpus
Robert Friedman, Capital Collateral Regional Counsel, Dawn B. Macready and
Stacy R. Biggart, Assistant Capital Collateral Regional Counsel, Northern Region,
Tallahassee, Florida,
for Appellant/Petitioner
Ashley Moody, Attorney General, and Michael T. Kennett, Assistant Attorney
General, Tallahassee, Florida,
for Appellee/Respondent
- 71 -