& SC14-22 Roderick Michael Orme v. State of Florida & Roderick Michael Orme v. Julie L. Jones, etc. ( 2015 )

Supreme Court of Florida
____________
No. SC13-819
____________
RODERICK MICHAEL ORME,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC14-22
____________
RODERICK MICHAEL ORME,
Petitioner,
vs.
JULIE L. JONES, etc.,
Respondent.
[December 10, 2015]
PER CURIAM.
Roderick Michael Orme appeals an order of the circuit court denying his
motion to vacate his sentence of death, filed under Florida Rule of Criminal
Procedure 3.851, and he petitions this Court for a writ of habeas corpus. We have
jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we
affirm the postconviction court’s denial of relief, and we deny habeas relief.
FACTS AND PROCEDURAL HISTORY
A full description of the facts of the instant case can be found in our opinion
from Orme’s direct appeal. Orme v. State (Orme I), 677 So. 2d 258, 260-61 (Fla.
1996). The facts relevant here are as follows. In March 1992, Orme was charged
with premeditated or felony murder, robbery, and sexual battery in connection with
the death of Lisa Redd, whose body was found in Orme’s motel room. Id. at 260.
A jury convicted Orme on all three counts and recommended the death penalty by
a vote of seven to five. Id. at 261. The trial judge followed the recommendation
and sentenced Orme to death, finding three aggravating factors—committed during
the course of a sexual battery; heinous, atrocious, or cruel (HAC); and committed
for pecuniary gain. Id. In mitigation, the judge found both statutory mental health
mitigators (substantial impairment and extreme emotional disturbance), giving
them “some weight.” Id. We have previously described the procedural history of
this case as follows:
On direct appeal, Orme raised eight issues. [n.1] This Court affirmed
Orme’s conviction of first-degree murder and the sentence of death.
[Orme I, 677 So. 2d at 261-64.] Orme filed a petition for writ of
certiorari with the United States Supreme Court. That Court denied
review on January 13, 1997. Orme v. Florida, 519 U.S. 1079 (1997).
[N.1] The following issues were raised: (1) the trial court
should have directed a judgment of acquittal on grounds
-2-
the case against him was circumstantial and the State had
failed to disprove all reasonable hypotheses of innocence;
(2) Orme’s statements to officers should have been
suppressed on grounds he was too intoxicated with drugs
to knowingly and voluntarily waive his right to silence;
(3) death is not a proportionate penalty because Orme’s
will was overborne by drug abuse, and because any fight
between the victim and him was a “lover’s quarrel”; (4)
Orme’s mental state at the time of the murder was such
that he could not form a “design” to inflict a high degree
of suffering on the victim; (5) the trial court erred by
failing to weigh in mitigation the fact that Orme had no
significant prior criminal history; (6) the trial court erred
in declining to give a special instruction that acts
perpetrated on the victim after her death are not relevant
to the HAC aggravator; (7) the instruction on HAC
violated the dictates of Espinosa v. Florida, 505 U.S.
1079 (1992); and (8) Orme was incapable of forming the
specific intent necessary for first-degree murder and this
fact bars his death sentence under Enmund v. Florida,
458 U.S. 782 (1982).
Subsequently, Orme filed an amended motion for
postconviction relief pursuant to Florida Rule of Criminal Procedure
3.851, raising twenty-five claims. After an evidentiary hearing on
four claims of ineffective assistance of trial counsel, the trial court
denied relief. Orme appealed the denial of postconviction relief to
this Court, raising three claims. [n.2] He also petitioned the Court for
a writ of habeas corpus, raising eight claims. [n.3] See [Orme v. State
(Orme II), 896 So. 2d 725, 737 (Fla. 2005)]. This Court found
defense counsel ineffective for failing to further investigate Orme’s
diagnosis of bipolar disorder with respect to the penalty phase. As a
result, a new penalty phase was ordered. Id. [at 740-41].
[N.2] Orme argued that (1) the trial court erred in
denying his ineffective assistance of counsel claim for
trial counsel’s failure to present evidence of Orme’s
diagnosis of bipolar disorder; (2) his death sentence is
unconstitutional pursuant to Ring v. Arizona, 536 U.S.
584 (2002), and its progeny; and (3) the general jury
-3-
qualifications procedure in Bay County, where he was
tried, was unconstitutional. [Orme II], 896 So. 2d 725(Fla. 2005).
[N.3] Three of the claims Orme raised were: (1)
appellate counsel was ineffective for failing to raise on
appeal the fact that Orme was involuntarily absent from
two bench conferences, which he claims were critical
stages of his trial; (2) appellate counsel was ineffective
for failing to raise on appeal the claim that the prosecutor
engaged in misconduct rendering the conviction and
sentence fundamentally unfair; and (3) appellate counsel
was ineffective for failing to raise on appeal the claim
that the trial court erroneously allowed forty-three
gruesome photographs to be shown to the jury. Orme
raised five additional claims, all of which were found not
to be properly raised in a habeas proceeding because they
were either raised on direct appeal or in postconviction or
should have been raised and were therefore procedurally
barred. [Orme II, 896 So. 2d at 740].
In May 2007, a new penalty phase was conducted before a new
jury, but before the original trial judge. By a vote of eleven to one,
the new jury recommended a death sentence. The trial court followed
the jury’s recommendation and sentenced Orme to death. The trial
court found the following three statutory aggravating factors: (1) the
capital felony was committed for pecuniary gain; (2) the capital felony
was committed while the defendant was engaged in the commission
of, or an attempt to commit, or flight after committing or attempting to
commit a sexual battery; and (3) the capital felony was especially
heinous, atrocious, or cruel. The trial court also found three statutory
mitigators: (1) the defendant had no significant criminal history (little
weight); (2) the capital felony was committed while the defendant was
under the influence of extreme mental or emotional disturbance (little
weight); and (3) the capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of the law was substantially impaired (little weight).
The trial court also found that the following mitigation was either
irrelevant to the murder or did not exist and, as a result, gave them no
weight: (1) the age of the defendant; (2) a bipolar disorder contributed
-4-
significantly to the defendant’s substance abuse; (3) the defendant had
a difficult childhood; (4) the defendant is a model prisoner; (5) the
defendant’s potential for rehabilitation; and (6) the defendant tried to
get the victim help.
Orme v. State (Orme III), 25 So. 3d 536, 542-43 (Fla. 2009).
At resentencing, Orme was initially represented by Russell Ramey, who was
appointed after the Public Defender’s Office certified to the court a conflict of
interest and moved for appointment of separate counsel. Subsequently, attorneys
Sarah Butters and George Schulz of Holland & Knight, LLP, filed a notice of
appearance as cocounsel to Ramey. However, at a September 7, 2005, hearing, the
trial court informed Butters and Schulz that their pro bono representation of Orme
as cocounsel to Ramey could prompt Ramey’s withdrawal from the case, as the
Justice Administrative Commission (JAC) would not pay for court-appointed
counsel when private counsel had been obtained. Thus, on November 2, 2005,
Butters and Schulz filed a motion for appointment of Michel Stone as cocounsel
for Orme.1 A hearing was held on the motion on November 7, 2005, and the trial
court conducted a colloquy with Orme, eventually appointing Stone as cocounsel
to Ramey.
1. Stone had briefly represented Orme before the start of Orme’s original
trial proceedings, when Stone left the Public Defender’s Office to enter private
practice.
-5-
Orme appealed the death sentence he received at resentencing to this Court,
raising nine claims.2 Orme III, 25 So. 3d at 540, 543. We affirmed his sentence,
finding no reversible error. Id. at 543-53. Orme then filed a petition for writ of
certiorari with the United States Supreme Court, which that Court denied on June
7, 2010. Orme v. Florida, 560 U.S. 956 (2010).
On June 1, 2011, Orme filed the instant motion for postconviction relief,
presenting four claims of ineffective assistance of counsel—that resentencing
phase counsel rendered ineffective assistance by (1) violating the Sixth, Eighth,
and Fourteenth Amendments; (2) failing to object to the prosecutor’s improper
arguments at resentencing; (3) failing to preserve the trial court’s error in holding
that a juror’s refusal to consider remorse as a mitigator could only be a basis for a
2. The nine claims were that the trial court erred in (1) refusing to allow
Orme to challenge for cause prospective jurors who could not consider remorse as
a mitigator; (2) refusing to allow him to inquire of prospective jurors whether they
could consider recommending a life sentence as a matter of mercy even if the
aggravators outweighed the mitigators; (3) failing to dismiss the venire after one
prospective juror revealed that Orme had a prior conviction; (4) refusing to allow
Orme to waive his right to the sentencing option of life in prison without the
possibility of parole for twenty-five years in favor of a harsher punishment of life
in prison without the possibility of parole; (5) failing to give weight to Orme’s
difficult childhood, the fact that Orme was a model prisoner, Orme’s potential for
rehabilitation, and Orme’s attempt to get the victim help; (6) finding that the
pecuniary gain aggravator applied; (7) finding the HAC aggravator; and (8) finding
that the “murder was committed in the course of a sexual battery” aggravator
applied; along with the ninth claim that Orme’s death sentence violated Ring v.
Arizona, 536 U.S. 584 (2002). Id. at 543-52.
-6-
peremptory challenge; and (4) failing to preserve the issue of the jury’s
consideration of mercy in making its sentencing recommendation. He also raises
two additional claims: that rules prohibiting Orme’s lawyers from interviewing
jurors to discover constitutional error violate Orme’s constitutional rights and that
Orme’s death sentence violates the Eighth Amendment. The State filed its
response on July 26, 2011. The postconviction court granted an evidentiary
hearing on Orme’s first claim only. The hearing began on April 30, 2012. On
March 1, 2013, the court entered an order denying all of Orme’s postconviction
claims.
Orme now appeals the denial of his motion, raising four claims of ineffective
assistance of resentencing phase counsel3 and one claim of ineffective assistance of
postconviction counsel. Orme also petitions this Court for a writ of habeas corpus,
alleging that appellate counsel rendered ineffective assistance by failing to raise the
following issues on appeal from the resentencing: (1) the use of restraints on Orme
during resentencing; (2) the State’s participation in privileged discussions and
3. These claims are the same as the first four claims presented to the
postconviction court in Orme’s motion below—that resentencing phase counsel
rendered ineffective assistance by (1) violating the Sixth, Eighth, and Fourteenth
Amendments; (2) failing to object to the prosecutor’s improper arguments at
resentencing; (3) failing to preserve the trial court’s error in holding that a juror’s
refusal to consider remorse as a mitigator could only be a basis for a peremptory
challenge; and (4) failing to preserve the issue of the jury’s consideration of mercy
in making its sentencing recommendation.
-7-
communications of defense counsel in violation of the Equal Protection Clause;
and (3) improper arguments by the prosecutor at resentencing.
ANALYSIS
First, we summarily reject Orme’s claim of ineffective assistance of
postconviction counsel because, as Orme recognizes, this Court has repeatedly
rejected such claims.4 We also reject the remainder of Orme’s claims for the
reasons outlined below.
I. Ineffective Assistance of Counsel
To prevail on an ineffectiveness claim, a defendant must satisfy both prongs
of the Strickland5 test: that counsel performed deficiently and that such deficiency
prejudiced the defendant. Lynch v. State, 2 So. 3d 47, 70 (Fla. 2008). Because
both prongs must be demonstrated, once a defendant has failed to meet one prong,
a discussion of the other is unnecessary. Strickland, 466 U.S. at 697; see Maxwell
v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986). Furthermore, because the inquiry
involves mixed questions of law and fact, we defer to the trial court’s factual
4. Mann v. State, 112 So. 3d 1158, 1163-64 (Fla. 2013); Gore v. State, 91
So. 3d 769, 778 (Fla. 2012); Kokal v. State, 901 So. 2d 766, 777 (Fla. 2005);
Foster v. State, 810 So. 2d 910, 917 (Fla. 2002); King v. State, 808 So. 2d 1237,
1245 (Fla. 2002); Carroll v. State, 815 So. 2d 601, 609 n.8 (Fla. 2002); Waterhouse
v. State, 792 So. 2d 1176, 1193 (Fla. 2001).
5. Strickland v. Washington, 466 U.S. 668, 687 (1984).
-8-
findings where supported by competent, substantial evidence, but review the
court’s legal conclusions de novo. Walker v. State, 88 So. 3d 128, 134 (Fla. 2012).
To demonstrate deficient performance, “the claimant must identify particular
acts or omissions of the lawyer that are shown to be outside the broad range of
reasonably competent performance under prevailing professional standards.”
Walker, 88 So. 3d at 134 (quoting Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010)).
In assessing counsel’s performance, judicial scrutiny must be “highly deferential,”
and counsel is entitled to the strong presumption that his or her conduct “falls
within the wide range of reasonable professional assistance.” Strickland, 466 U.S.
at 689. Thus, a defendant “must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’ ”
Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
To establish prejudice, the defendant must show that without his counsel’s
deficiency, there is a “reasonable probability” that he would have received a
different sentence. Simmons v. State, 105 So. 3d 475, 503 (Fla. 2012). In other
words, the deficiency must be demonstrated to have “so affected the fairness and
reliability of the proceeding that confidence in the outcome is undermined.”
Walker, 88 So. 3d at 134 (quoting Bolin, 41 So. 3d at 155); see also Strickland,
466 U.S. at 694 (“A reasonable probability is a probability sufficient to undermine
confidence in the outcome.”). To determine reasonable probability, we must
-9-
“consider the totality of the available mitigation evidence—both that adduced at
trial, and . . . in the [postconviction] proceeding—and reweig[h] it against the
evidence in aggravation.” Walker, 88 So. 3d at 138 (internal quotation marks
omitted).
A. Violations of the Sixth, Eighth, and Fourteenth Amendments
Orme’s first claim can be divided into seven subclaims.6 However,
subclaims two through four are so significantly related to the theory of residual
doubt in subclaim one that they will be discussed together below. Subclaims five
through seven will be addressed separately.
The first issues of ineffective assistance involve the injection of residual or
lingering doubt about the murder and the sexual battery convictions into the
resentencing phase by defense counsel. This Court has rejected the use of residual
doubt as a mitigator. Darling v. State, 808 So. 2d 145, 162 (Fla. 2002) (“We have
repeatedly observed that residual doubt is not an appropriate mitigating
circumstance.”). “[A] defendant’s right to present evidence challenging an
6. The first six subclaims are that counsel rendered ineffective assistance by
(1) attempting to use lingering doubt to affect the jury; (2) making false promises
as to the DNA evidence in the case; (3) presenting inconsistent theories of the case;
(4) attempting to convince the jury that Orme had consensual sex with the victim;
(5) calling Drs. Harmor and Riddick to testify; and (6) poorly presenting the
mental health mitigation evidence. As subclaim seven, Orme argues that the
postconviction court erred in not considering the cumulative prejudice resulting
from the deficiencies outlined in the first six subclaims.
- 10 -
aggravating circumstance may not be used to relitigate the guilt determination
through the introduction of evidence suggesting lingering or residual doubt.”
Duest v. State, 855 So. 2d 33, 40 (Fla. 2003). Thus, where the sole purpose for
admitting certain evidence is to show residual doubt as to the defendant’s guilt, the
evidence is inadmissible. Merck v. State, 124 So. 3d 785, 796 (Fla. 2013). See,
e.g., Duest, 855 So. 2d at 40 (upholding court’s exclusion of alibi evidence where
it was not relevant to rebut robbery/pecuniary gain aggravator but was merely an
attempt to relitigate defendant’s failed alibi defense from the guilt phase (citing
Way v. State, 760 So. 2d 903, 916 (Fla. 2000); Waterhouse v. State, 596 So. 2d
1008, 1015 (Fla. 1992))).
Here, resentencing counsel’s strategy was to rebut the sexual battery
aggravator by asserting, based on the unknown third party’s DNA found under the
victim’s fingernail and the fact that Orme did not have any scratches on his person,
that Orme had consensual sex with the victim. Orme argues that such strategy
constitutes an impermissible, residual doubt argument and therefore demonstrates
deficient performance. Orme also argues deficiency for resentencing counsel’s
presentation of inconsistent theories in that counsel highlighted the lack of
scratches on Orme’s body to imply that Orme was not guilty, but also stated that
Orme knew he was the one who killed the victim and that neither the defense nor
- 11 -
Orme was trying to evade responsibility for the victim’s death. As to prejudice,
Orme argues that this strategy caused the defense to lose credibility with the jury.
Regardless of whether this was a good strategy, it does not rise to the level
of ineffective assistance of counsel. Any loss of credibility resulting from a
residual doubt argument has not “so affected the fairness and reliability of the
proceeding that confidence in the outcome is undermined,” Walker, 88 So. 3d at
134 (quoting Bolin, 41 So. 3d at 155), especially given the trial court’s finding and
assigning of great weight to three aggravators, including HAC—which is one of
the weightiest in Florida’s statutory sentencing scheme7—and the “relatively
weak”8 mitigation presented in this case. Because Orme has failed to demonstrate
prejudice, we find that he is not entitled to relief as to these subclaims.
Orme also argues that calling Drs. Harmor and Riddick constituted deficient
performance because portions of their testimony were favorable to and relied upon
by the State in establishing the sexual battery and HAC aggravators. However,
both experts provided testimony that supported the defense theory of the case. Dr.
Harmor testified about a third person’s DNA found at the crime scene. Dr.
Riddick testified that the victim could have been beaten after, rather than before or
7. Bradley v. State, 33 So. 3d 664, 680 (Fla. 2010).
8. Orme III, 25 So. 3d at 544, 545.
- 12 -
during sex, and that the sex could have been consensual. Whether or not
resentencing counsel received what they desired from the testimony of these two
experts, Orme has not shown that he was prejudiced by it. The State produced
sufficient evidence for the finding of the HAC and sexual battery aggravators even
without the testimony from Drs. Harmor and Riddick. See Orme III, 25 So. 3d at
551-52. Accordingly, Orme cannot establish that any deficiency in calling these
experts affected his resentencing in such a way that this Court’s confidence in his
sentence is undermined. Walker, 88 So. 3d at 134.
Orme also argues that his resentencing counsel rendered ineffective
assistance in their presentation of mental health mitigation by failing to: (1) correct
the inaccurate testimony of Drs. Maher and Herkov that they were the only two
experts, other than Dr. Walker, to diagnose Orme as bipolar; (2) call Dr. McClane
as a witness or have Dr. Warriner’s9 prior testimony from Orme’s original
postconviction proceedings read to the jury; (3) have Dr. Herkov testify as to the
statutory mitigators; and (4) present the testimony of Drs. Maher and Herkov in a
detailed, cohesive manner, as it was presented at the original postconviction
hearing.
9. Dr. Warriner died before resentencing.
- 13 -
Neither Dr. McClane nor Dr. Warriner clearly diagnosed Orme as bipolar.
As we noted in Orme II, Dr. McClane testified in Orme’s original postconviction
proceeding that had he received certain information before trial, he “would have
diagnosed Orme as probable bipolar in a depressed phase,” and Dr. Warriner
indicated that “had he been asked to provide a diagnosis, he would likely have
diagnosed Orme with ‘bipolar disorder, mixed type.’ ” 896 So. 2d at 734(emphasis added). These statements are tentative and hypothetical, not an actual
diagnosis. Thus, any attempt by resentencing counsel, on redirect, to correct the
testimony that only three doctors diagnosed Orme as bipolar would have been
useless or even detrimental since Drs. Maher and Herkov obviously did not
consider the statements by Drs. Warriner and McClane to constitute actual
diagnoses. Further, Orme received the benefit of their statements when the State’s
expert, Dr. Pritchard, testified at resentencing that both Dr. Warriner and Dr.
McClane had diagnosed Orme with bipolar disorder. Under the circumstances,
prejudice has not been established.
Nor has Orme demonstrated deficient performance for not presenting
testimony from Drs. McClane and Warriner. Resentencing counsel testified that
they tried contacting Dr. McClane, but he refused to cooperate or testify at Orme’s
resentencing. Orme has not shown that Dr. McClane was willing or available to
testify. In addition, resentencing counsel made the strategic decision to rely on live
- 14 -
testimony rather than reading Dr. Warriner’s postconviction testimony into
evidence. As the postconviction court found, that strategy decision was
reasonable, especially in light of the lack of certainty regarding whether Dr.
Warriner did, in fact, diagnose Orme with bipolar disorder. See Strickland, 466
U.S. at 689. As Orme has not shown deficient performance, we find it unnecessary
to discuss the prejudice prong. Id. at 697.
Orme also cannot demonstrate prejudice for counsel’s failure to have Dr.
Herkov testify concerning the statutory mitigating factors because the other
defense expert, Dr. Maher, testified as to the mitigating circumstances, and the trial
court found the existence of both statutory mental health mitigators and a third
statutory mitigator. Moreover, resentencing counsel asked Dr. Herkov about the
effect of cocaine upon one’s ability to appreciate what one is doing or one’s ability
to avoid doing it. Lastly, Dr. Herkov testified that cocaine intoxication causes
impaired judgment, and he related Orme’s bipolar disorder and drug use back to
the crime. Orme cannot demonstrate prejudice as to this issue and therefore, is not
entitled to relief under Strickland.
Orme’s last allegation as to mitigation—that the expert testimony at
resentencing could have been better presented—does not overcome the “highly
deferential” judicial scrutiny under which attorney conduct is analyzed.
Strickland, 466 U.S. at 689. More importantly, a “general allegation that
- 15 -
mitigating evidence could have been better presented is an insufficient allegation
of prejudice.” Cole v. State, 841 So. 2d 409, 428 (Fla. 2003). Orme argues that
had the testimony been better presented, the experts would have had more
credibility with the jury, resulting in a reasonable probability that Orme’s bipolar
disorder would have been established. However, this argument is purely
speculative and does not entitle Orme to relief. Johnston v. State, 70 So. 3d 472,
477 (Fla. 2011) (“Mere speculation that counsel’s error affected the outcome of the
proceeding is insufficient.”).
Orme has not demonstrated ineffective assistance as to this first claim.
Therefore, we affirm the postconviction court’s denial of relief. Because none of
Orme’s subclaims entitle him to relief, his claim of cumulative prejudice must also
fail. Suggs v. State, 923 So. 2d 419, 433-34 (Fla. 2005) (“Because he failed to
prove a deficiency in any one of the above alleged instances of ineffective
assistance of counsel, Suggs’ cumulative claim of prejudicial error also fails.”).
B. Improper Arguments
Most of the prosecutorial comments to which Orme objects were not
improper. Thus, counsel cannot be ineffective for failing to object to them.
Rogers v. State, 957 So. 2d 538, 548 (Fla. 2007). However, three of the
prosecutor’s arguments were improper, and Orme’s resentencing phase counsel
- 16 -
should have objected. Nonetheless, we deny relief because prejudice has not been
demonstrated.
During closing argument, the prosecutor asked the jury to consider the last
minutes of the victim’s life: “Was she feeling any endorphins, was she feeling a
sense of calm, or was she feeling deep sadness, fear, pain, cruelty, what does our
common sense tell us?” This comment asked jurors to use their common sense to
think about what the victim was feeling. As found by the postconviction court, this
comment is an impermissible, “golden rule” argument—one that asks jurors to
place themselves in the victim’s position, imagine the victim’s pain or fear, or
imagine how they would feel if the victim was their relative. See Williamson v.
State, 994 So. 2d 1000, 1006 (Fla. 2008) (quoting Hutchinson v. State, 882 So. 2d
943, 954 (Fla. 2004)) (internal quotation marks omitted).
The other two comments were impermissible imaginary scripts. “An
‘imaginary script’ is a subtle form of a ‘golden rule’ argument in which the
prosecutor asks the jury to put the prosecutor’s ‘own imaginary words in the
victim’s mouth,’ thereby ‘trying to unduly create, arouse and inflame the
sympathy, prejudice and passions of [the] jury to the detriment of the accused.’ ”
Gonzalez v. State, 136 So. 3d 1125, 1153 (Fla.) (quoting Urbin v. State, 714 So. 2d
411, 421 (Fla. 1998)), cert. denied, 135 S. Ct. 193 (2014). In the first comment,
the prosecutor stated that the victim could not breathe and therefore, could not tell
- 17 -
Orme to “please take my car, go ahead, take the purse, you’ve already beaten me,
you have already raped me, I have no dignity, don’t take my life.” Later on, the
prosecutor stated that the victim “didn’t beg him, please, Mike, let me go, you are
hurting me.” These two comments placed imaginary words into the victim’s
mouth and were therefore improper. However, Orme must demonstrate prejudice
to prevail on this claim.
To establish prejudice for counsel’s failure to object to improper
prosecutorial comments, the prosecutor’s comments must “either deprive the
defendant of a fair and impartial trial, materially contribute to the conviction, be so
harmful or fundamentally tainted as to require a new trial, or be so inflammatory
that they might have influenced the jury to reach a more severe verdict than . . . it
would have otherwise.” Walls v. State, 926 So. 2d 1156, 1167 (Fla. 2006)
(quoting Spencer v. State, 645 So. 2d 377, 383 (Fla. 1994)). Although the
prosecutor in this case made impermissible golden rule and imaginary script
arguments, these arguments do not rise to the level of prejudice required by Walls.
The statements constituted a brief portion of an argument that otherwise focused
on the facts of the case and the evidence against the defendant. None of the
statements were so harmful or inflammatory as to influence the jury to reach a
more severe verdict than it would have otherwise, especially in light of the
evidence presented. Id. As such, we find that Orme has failed to demonstrate
- 18 -
prejudice and, therefore, cannot establish a claim of ineffective assistance for
resentencing counsel’s failure to object to these improper prosecutorial comments.
We take this opportunity to again caution prosecutors about such
impassioned closing arguments. We understand that often comments are made in
the heat of the moment that with hindsight should not be made because they cross
the line from zealous advocacy to improper. However, prosecutors should be ever
mindful that in cases where the evidence supporting guilt or the aggravating
circumstances is not strong, such comments could and have caused this Court to
find that improper comments materially contributed to either the finding of guilt or
the recommendation for a sentence of death.
C. Claims Regarding Voir Dire
Orme argues that resentencing counsel rendered ineffective assistance by not
continuing to question prospective jurors on whether they could consider remorse
or mercy in sentencing. As to prejudice, Orme asserts that when the errors
committed by resentencing counsel are combined with the errors this Court found
harmless on appeal, it is clear that Mr. Orme did not receive the fundamentally fair
proceeding to which he is entitled under the Eighth and Fourteenth Amendments.
During voir dire, resentencing counsel asked prospective jurors if they could
consider remorse as mitigation and whether mercy should be a consideration in
sentencing. Orme III, 25 So. 3d at 543-44. As to each of these issues, the State
- 19 -
objected, and the trial court sustained the objections, restricting defense questions
regarding these topics. Id. Upon reconsideration, the court allowed inquiry into
remorse and mercy again, but resentencing counsel did not ask any other
prospective jurors about remorse. Id. Counsel did, however, resume questioning
about mercy. Id. The State also began to question the jurors about mercy,
explaining that the consideration of mercy rests with the governor. Id. at 544-45.
Resentencing counsel objected to that line of argument and explained that the
defense would not be questioning any more jurors about mercy, so the State should
not be allowed to mention it. The trial court ruled that the State could not discuss
mercy unless defense counsel brought it up. Id. at 545. Resentencing counsel then
did not mention mercy for the rest of voir dire. On appeal, we found Orme’s
claims of trial court error on these issues unpreserved because counsel did not ask
jurors about remorse or mercy after the court made its rulings. Id. at 543, 545.
Orme now argues ineffective assistance of counsel for failing to preserve
these claims. However, Orme cannot demonstrate deficient performance. As to
mercy, resentencing counsel made a strategic decision to abandon that line of
questioning to prevent the State from further argument concerning the
consideration of mercy. Such decision was both sound and reasonable. Strickland,
466 U.S. at 689. Counsel relied on the prospective jurors to consider mercy on
their own rather than suggesting that they consider it and thereby exposing them to
- 20 -
additional negative argument by the State. Furthermore, counsel’s decision not to
continue questioning prospective jurors about remorse and mercy does not fall
below the range of reasonably competent performance because Orme is not entitled
to have prospective jurors questioned about the specific topics of remorse and
mercy. Orme cannot overcome the highly deferential judicial scrutiny to which
counsel’s behavior is entitled. Therefore, Orme is not entitled to relief under
Strickland.
II. Habeas Claims
Ineffective assistance of appellate counsel is determined using the Strickland
standard for ineffective trial counsel. Walls, 926 So. 2d at 1175. Any appellate
counsel deficiency must be related to an error affecting the outcome of the case,
not an error that is harmless. Knight v. State, 394 So. 2d 997, 1001 (Fla. 1981).
Appellate counsel’s deficiency must have compromised the appellate process so
much that confidence in the correctness of the result is undermined. Thompson v.
State, 759 So. 2d 650, 660 (Fla. 2000). Appellate counsel will not be deemed
ineffective for failing to raise a meritless issue. Wyatt v. State, 71 So. 3d 86, 112-
13 (Fla. 2011). As such, appellate counsel cannot be ineffective for not raising
unpreserved claims unless they constitute fundamental error. See Walls, 926 So.
2d at 1176; Davis v. State, 928 So. 2d 1089, 1133 (Fla. 2005). Further, appellate
counsel is not required to raise every claim that might have had some possibility of
- 21 -
success, Zack v. State, 911 So. 2d 1190, 1204 (Fla. 2005), but must instead
“winnow out weaker arguments in order to concentrate on key issues,” Thompson,
759 So. 2d at 656 n.5.
A. Use of Restraints
Orme claims appellate counsel was ineffective for failing to raise as an issue
on direct appeal the use of a restraint during his resentencing. Generally, a
defendant has the right to appear before the jury free from physical restraints.
Weaver v. State, 894 So. 2d 178, 193 (Fla. 2004). However, restraints may be
used to allay security concerns, such as preventing courtroom violence or an
escape, as well as preventing other courtroom disruptions. Deck v. Missouri, 544
U.S. 622, 633 (2005). Orme’s habeas petition and reply to the State’s response
contain speculative and conclusory allegations of prejudice which were not argued
before the trial court.
Prior to jury selection at the resentencing proceeding, the trial judge began a
discussion about the need for security measures. The State reminded the trial
judge of the need to have a hearing on the matter. During the hearing, personnel
from the Bay County Sheriff’s Office testified on this issue and requested the use
of both a stun belt and a Brady brace. The sheriff’s office provided generalized
reasons for requesting the restraints based on the fact that this was the resentencing
of a defendant who had been convicted of first-degree murder. Resentencing
- 22 -
counsel questioned a witness on the issue of whether the use of a stun belt changes
the defendant’s demeanor in the courtroom because the belt might be activated.
The officer answered that the purpose of the stun belt was to make defendants
aware that there is a method in place to deal with outbursts and improper
movements.
At the conclusion of the hearing, the trial judge determined that a restraint
should be used but not two restraints, and indicated that the stun belt should be
used. The trial judge acknowledged that Orme had not been a security problem at
earlier appearances before the court but that his case was now in a different
posture. In essence, the court found that the defendant had been convicted of first-
degree murder, that his conviction had been affirmed on appeal, that the case was
now ready for resentencing, that this was the first time since his conviction that
Orme was in a less restrictive environment, and that it was at this point that this
defendant had more reason to possibly try an escape.
Even if the trial judge’s articulation of the reasons for the restraint is not
sufficiently specific, we find that such error would not require reversal because
prejudice has not been demonstrated. See Smith v. State, 7 So. 3d 473, 493-94
(Fla. 2009); Elledge v. State, 408 So. 2d 1021, 1022-23 (Fla. 1982) (indicating that
the critical issue to be determined in a restraint case is the degree of prejudice
caused by using a restraint). In this case, resentencing counsel was concerned with
- 23 -
the fact that a stun belt could alter the defendant’s demeanor in the courtroom. No
argument was made that the use of the stun belt would interfere with his right to
counsel or would prevent him from fully participating or communicating with
counsel. Additionally, there is nothing in the record indicating that the stun belt
was ever visible to the jury. See Weaver, 894 So. 2d at 195. Under these
circumstances, we find the defendant is not entitled to relief on the merits of his
claim. Therefore, it has not been demonstrated that appellate counsel was
ineffective for failing to raise the issue on appeal.
B. Access to Privileged Material
Orme next argues that appellate counsel was deficient for failing to raise the
issue of the State being noticed of and allowed to participate in allegedly privileged
discussions and communications because the trial court’s refusal to hear his
motions ex parte was erroneous.10 Orme asserts that there was no justification for
allowing the State to be involved in the preparation of Orme’s defense and that the
disclosure of these motions prejudiced him by revealing to the State information it
10. The State cites Jones v. State, 928 So. 2d 1178 (Fla. 2006), to argue that
Orme’s claim is procedurally barred because it should have been raised on appeal.
Id. at 1182 n.5. However, that case involved a defendant using a postconviction
motion to argue claims of trial court error that should have been raised on appeal.
In contrast, Orme’s claim is being raised in a habeas petition where the very act of
failing to raise an issue on appeal is the basis for the claim of ineffective assistance
of appellate counsel. Thus, Orme’s claim is not procedurally barred.
- 24 -
was not entitled to receive and from which it could deduce the defense strategy.
However, Orme has not indicated any specific information within his motions that
would have revealed any defense strategy, nor has he set forth any basis on which
the trial court should have heard his motions ex parte.11 In addition, Orme has not
specifically stated what information the State learned to which it would not have
already been entitled under Florida’s liberal discovery rules. In a habeas petition,
“[t]he defendant has the burden of alleging a specific, serious omission or overt act
upon which the claim of ineffective assistance of counsel can be based.” Wyatt, 71
So. 3d at 112-13 (quoting Anderson v. State, 18 So. 3d 501, 520 (Fla. 2009)). This
requirement is especially significant here, where the motions in question appear to
be mostly innocuous: requesting DNA testing of items previously tested by the
State and requesting that the court order payment of expert witness invoices by the
JAC. Such vague, conclusory allegations are insufficient to warrant relief on a
habeas claim. Bradley, 33 So. 3d at 685. As such, we deny relief as to Orme’s
second habeas claim.
C. Prosecutorial Arguments
11. See Fla. Code Jud. Conduct, Canon 3(B)(7)(a) (stating that a “judge
shall not initiate, permit, or consider ex parte communications” except where
required “for scheduling, administrative purposes, or emergencies that do not deal
with substantive matters or issues on the merits”).
- 25 -
In his final ineffective assistance of appellate counsel claim, Orme argues
appellate counsel should have argued for reversal of his sentence based on
allegedly improper comments during closing argument. Most of the comments to
which Orme objects were proper and thus, would not be the basis for a successful
argument on appeal. Additionally, resentencing phase counsel did not object to
any of the comments; therefore, they are unpreserved and must constitute
fundamental error to result in ineffective assistance of appellate counsel. Walls,
926 So. 2d at 1176. “In order for improper comments made in the closing
arguments of a penalty phase to constitute fundamental error, they must be so
prejudicial as to taint the jury’s recommended sentence.” Id. As discussed in his
claim of ineffective assistance of resentencing counsel, Orme has not demonstrated
that the comments here rose to such level. Thus, appellate counsel was not
deficient for not raising this meritless issue, Wyatt, 71 So. 3d at 112-13, and
counsel’s failure to raise this claim does not undermine our confidence in the result
of his appeal, Thompson, 759 So. 2d at 660. Therefore, we deny relief on this
claim.
CONCLUSION
Orme has failed to demonstrate ineffective assistance of resentencing phase
counsel as to any of his claims. Accordingly, we affirm the postconviction court’s
denial of Orme’s postconviction motion. Because Orme has not demonstrated
- 26 -
ineffective assistance of appellate counsel, we deny relief on the three claims
raised in his habeas petition as well.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY,
JJ., concur.
CANADY, J., concurs in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Two Cases:
An Appeal from the Circuit Court in and for Bay County,
Brantley Scott Clark, Jr., Judge - Case No. 031992CF000442XXAXMX
And an Original Proceeding – Habeas Corpus
Linda McDermott of McClain & McDermott, P.A., Estero, Florida,
for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, and Patrick M. Delaney, Assistant Attorney
General, Tallahassee, Florida,
for Appellee/Respondent
- 27 -