FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-0691
_____________________________
WILLIAM J. CORMIER III,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
___________________________
On appeal from the Circuit Court for Escambia County.
W. Joel Boles, Judge.
August 3, 2018
ROBERTS, J.
The Appellant, William J. Cormier III, appeals from an order
denying his postconviction motion brought pursuant to Florida
Rule of Criminal Procedure 3.850. For the reasons discussed
below, we affirm.
The Appellant was indicted by a grand jury for first-degree
murder. The evidence presented at trial reflected that the victim
was last heard from on August 27, 2012, when he called a family
friend, Patricia Burke, from an unfamiliar number and made
plans to meet her at 1:45 p.m. When she arrived at his home at
1:15 p.m., the Appellant was leaving the house. The Appellant
told her that the victim was not home, his plans had changed,
and he had been delayed. Ms. Burke expressed concern for the
victim because he had been in poor health when she spoke to
him. After the Appellant left, Ms. Burke waited at the home,
hoping to see the victim. The Appellant called her less than ten
minutes later from the same number the victim had called from
that morning. He told her that he had spoken to the victim, who
would not be home for hours, and Ms. Burke should go home.
The evidence reflected that the victim had a collection of
Magic: the Gathering cards worth between $50,000 and $100,000.
Some of these cards were signed by the creator of the game. In
particular, he had a Black Lotus card, which was described as
“the number one card you can purchase,” as it was an out-of-print
card with a low print run. He also had rare cards such as a Time
Walk and a Mox Ruby.
The weekend after the victim’s disappearance, the Appellant
attended a sci-fi convention in Atlanta, where he approached a
pair of vendors with a valuable Magic: the Gathering card
collection. The Appellant sold them some of the cards for $5,844.
His twin brother, Christopher Cormier, was present during the
negotiations, but did not participate or receive any money. After
the convention, the Appellant, who did not own a car and had
been driving a rental car provided by his father, paid cash for a
Chrysler Sebring.
On September 3, 2012, the Appellant rented a U-Haul and
storage unit in Florida and started emptying the victim’s home.
He hired a yard service to work on the yard and haul some items
from inside the house to a landfill. He told the owner of the yard
service that he owned the house and his renters had moved out.
When a curious neighbor stopped by, he told the neighbor that
the victim was moving in with him. While the Appellant was at
the house, his brother, Christopher, injured his arm trying to
push open a window, and the Appellant took him to the hospital.
The Appellant returned without his brother and continued
moving the victim’s belongings. The Appellant paid the yard crew
and arranged for people to clean the house. He also paid the
cleaning crew.
On September 6, 2012, the Appellant emptied the storage
unit. The Appellant’s brother was present at the time, but unable
to help due to his injured arm. The Appellant did not tell the
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business that he was emptying the unit. It was discovered empty
and unlocked during a walkthrough of the premises.
On September 7, 2012, Ms. Burke returned to the victim’s
house. There were no cars in his driveway, and the house was
empty except for an old TV. The victim’s father reported his son
missing to law enforcement.
Subsequently, the Appellant arrived at his father’s house in
Georgia, driving a U-Haul. When he opened the back of the truck,
his father noticed a horrible smell, like there was a dead animal
inside. The Appellant told his father that a dog had died in
Pensacola. Subsequently, the Appellant’s father saw a number of
Magic: the Gathering cards in the house. He also noticed his
nephew digging in the backyard.
On September 8th or 9th, the Appellant helped make a
barbecue pit in his father’s backyard. He bought two-by-fours,
stakes, cement buckets, and a mixer for the project. He built the
frame and helped pour the concrete. He testified at trial that he
had to do most of the work because his brother had hurt his
hand.
On September 10, 2012, the Appellant met the two vendors
from the sci-fi convention at a restaurant in Tennessee. They
were meant to meet in Kentucky, but the Appellant’s car broke
down, so the location was changed. The Appellant and the
vendors spent two to three hours haggling over Magic: the
Gathering cards while Christopher watched and left periodically
to smoke. The vendors paid $12,021 in cash for the cards, which
included a Mox Ruby, a Time Walk, and a Black Lotus. The Mox
Ruby card was signed by the creator of the game.
Afterwards, the Appellant’s father picked up the Sebring in
Tennessee. It ultimately required $2,000 in repairs, which the
Appellant paid for. When the Appellant returned from Tennessee,
he bought a BMW for $5,100. Later, one of the twins asked their
father to throw away some spoons. He discarded them in a
dumpster at a Sonic restaurant. He then received a phone call
from a Pensacola detective about a missing person. He asked his
sons what was going on, and one of them told him that they
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would remove what was in the backyard. He believed it was the
Appellant who said this.
On October 8, 2012, a search warrant was executed at the
Appellant’s father’s home. Beneath a pile of leaves in the
backyard, police discovered a concrete slab encased by wood.
When the slab was lifted, they found a blue plastic tote. Inside
the tote were human remains that were later identified as the
victim’s. The victim’s skull had been shattered by blows that
appeared to have been caused by a hammer. Stab wounds and
cuts appeared to have been inflicted post-mortem. His body was
wrapped in plastic, and there were multiple air fresheners,
fragrance oils, and a bag of potpourri inside the tote with him.
The spoons discovered inside the nearby Sonic dumpster were
identified as the victim’s antique spoon collection. Blood in the
back of the U-Haul truck rented by the Appellant was matched to
the victim.
When the brothers were taken into custody, Christopher
simply told the detective that he had not seen the victim in over a
month. Meanwhile, the Appellant admitted to the detective that
he and his brother had stayed at the victim’s home before
attending the sci-fi convention and that he had later spoken to
the victim by phone. He advised that the victim had asked for
help moving to Cantonment. The Appellant claimed to have
loaded the victim’s belongings and left them at a house in
Cantonment with a man named John.
The Appellant’s defense at trial was to blame his brother for
the murder and claim that several other witnesses were lying.
According to the Appellant, his father lied about the smell coming
from the U-Haul and about him promising to move what was in
the backyard after the police called. The victim’s neighbor lied
about him saying that the victim was moving in with him, and
the owner of the yard service lied about the Appellant
representing himself to be the owner of the victim’s house. The
Appellant admitted to lying to Ms. Burke, but claimed that he did
so because his brother showed him a note from the victim
indicating that the victim had fled from his home out of fear of
people who had previously attacked him. He acknowledged lying
during his police interview about helping the victim move to
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Cantonment, but claimed that his brother told him to do so while
they were being arrested.
The Appellant claimed that he purchased the plastic tote, air
fresheners, and tarp that were used to conceal the victim’s body
on his brother’s instructions. He testified that he had to sell some
of the victim’s trading cards to pay for those items because he did
not have enough money. He claimed that his brother showed him
a note from the victim asking him to sell some of the trading
cards due to the victim’s financial problems. The Appellant
indicated that it fell to him to sell the cards because he had ten
years of experience selling Magic: the Gathering cards and kept
himself apprised of the cards’ prices. However, he denied knowing
how valuable the victim’s collection was until after he sold the
cards. He testified that he packed up the victim’s home and
organized the cleaning and the yard work because his brother
told him that the victim was moving.
At the conclusion of the trial, the Appellant was found guilty
of first-degree murder and sentenced to life in prison. His
conviction and sentence were affirmed on appeal. See Cormier v.
State,
156 So. 3d 1076 (Fla. 1st DCA 2015). He then filed the
instant rule 3.850 motion, raising seven grounds for relief. The
lower court summarily denied the motion, and this timely appeal
followed.
In the Appellant’s first ground, he raised two subclaims. In
subclaim (a), he argued that his attorney was ineffective for
failing to investigate and present evidence that he participated in
poker tournaments. He alleged that this evidence would counter
the State’s theory that he committed the murder for monetary
gain due to his own poor financial situation.
A claim of ineffective assistance of counsel is governed by
Strickland v. Washington,
466 U.S. 668 (1984). To prove
ineffective assistance a defendant must allege 1) the specific acts
or omissions of counsel that fell below a standard of
reasonableness under prevailing professional norms and 2) that
the defendant’s case was prejudiced by these acts or omissions
such that the outcome of the case would have been different.
Id.
at 690-92. The prejudice prong requires that the defendant
demonstrate a reasonable probability that, but for counsel’s
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errors, the result of the proceeding would have been different. See
id. at 694.
Here, the Appellant’s trial counsel did present evidence
regarding the Appellant’s income at the time of the offense. The
Appellant’s father testified that the Appellant’s primary form of
income was from playing poker and that he was extremely good
at it. He explained that the Appellant played in tournaments,
standard cash games, and online poker games. The Appellant
also testified that at the time of the offense, he was playing poker
semi-professionally. He claimed that he did “extremely well” in
tournaments and cash games. He further testified that he had
purchased some Magic: the Gathering cards while attending a sci-
fi convention in Indianapolis before staying at the victim’s house.
He indicated that he had earned money from selling those cards.
During closing arguments, defense counsel stressed that while
the State depicted the Appellant as being in poor financial straits
at the time of the victim’s murder, the Appellant had income from
poker and from his trading cards and a paycheck waiting with his
former employer back in Georgia.
Regardless, even if defense counsel had secured additional
evidence regarding the Appellant’s poker winnings, it would not
have changed the outcome of the trial. The Appellant testified
that he quit his job at Steak ‘n Shake before the murder. He
indicated during his police interview that he was unemployed.
His father testified that the Appellant was unemployed from the
time he went to visit the victim until the victim’s body was
discovered. Prior to the murder, the Appellant did not own a car,
but was driving one his father had rented for him. The Appellant
also testified that when he went to buy a plastic tote, some air
fresheners, and a tarp at Wal-Mart on August 27, 2012, he did
not have enough money for these items, so he had to sell some of
the victim’s trading cards to pay for them.
The Appellant bought the Sebring after selling the victim’s
trading cards, although he denied using the victim’s money in
that transaction. However, he testified that when the Sebring
broke down, he had to borrow money from the victim to repair it.
He claimed that his brother negotiated a deal with the victim via
text messages that required him to sell the Sebring when he
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returned to Georgia and use the proceeds to repay the victim and
buy another car. Instead, he returned to Georgia and bought a
BMW, but continued to drive the Sebring up until his arrest.
Given this information, it is clear that the Appellant was not
in good financial condition at the time of the murder, regardless
of any poker winnings. He did not own a car, could not rent one
for himself, and could not afford to buy relatively inexpensive
items at Wal-Mart without using the victim’s trading card
money. By his own testimony, when the Sebring broke down, he
could not afford to repair it. Under these circumstances, evidence
of his poker winnings would not have disproven the financial
motive for the victim’s murder. Therefore, this subclaim was
properly denied.
In subclaim (b), the Appellant argued that his attorney
should have investigated and obtained records that would prove
that he had given his father money to pay for the rental car. He
alleged that his father did not have the income to pay for the car
and that the utilities at his father’s home were in the Appellant’s
name as well. He asserted that this would have undermined the
State’s evidence that he committed the murder for financial gain.
He claimed that this would have changed the outcome of the
trial. He also argued that this evidence could have been used to
impeach his father’s testimony.
This subclaim was properly denied for the reasons already
discussed in connection with subclaim (a). By the Appellant’s own
testimony, at the time of the murder, he did not have the money
to pay for air fresheners, a plastic tote, and a tarp. He was later
unable to pay for the repairs to his Sebring without borrowing
money. Evidence showing that he was helping to pay for a rental
car and utilities would only have suggested an additional drain
on his financial resources at the time. Therefore, there is no
reasonable probability that this evidence would have changed the
outcome of the trial.
In the Appellant’s second ground, he argued that his
attorney was ineffective for failing to call his nephew, Kirk
Moksnes-Adamson, to testify at trial. He alleged that Mr.
Moksnes-Adamson would have testified that Christopher asked
him to dig the hole in the backyard where the victim’s body was
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ultimately discovered. He asserted that this testimony would
have created a reasonable doubt as to the Appellant’s
involvement in the murder.
The Appellant cannot show prejudice. Insofar as he suggests
that this testimony would have implicated his brother in the
murder, the evidence presented already established his brother’s
involvement. However, it also established that all of the actions
taken to conceal the victim’s death and dispose of the victim’s
property were taken by the Appellant. The Appellant admitted at
trial that he lied to Ms. Burke about the victim’s whereabouts
when she came looking for the victim. He did not testify that his
brother told him to lie to Ms. Burke, but indicated that he lied
because the victim had fled his house out of fear of some people
who had “jumped” him and he did not want to tell Ms. Burke the
victim’s business.
The Appellant subsequently bought the tarp, tote, and air
fresheners used to dispose of the victim’s body. He rented the U-
Hauls and the Florida storage locker that were used to transport
and store the victim’s body and belongings. He negotiated the
sale of the victim’s trading cards and received the proceeds. He
lied to the victim’s neighbor about the victim moving in with him
and lied to the yard crew about being the owner of the victim’s
house. Even after his twin hurt his arm and the Appellant took
him to the hospital, the Appellant returned to the victim’s home
and continued moving the victim’s belongings. He paid for yard
work and cleaning services at the victim’s home.
After driving the U-Haul to his father’s house, it was the
Appellant who explained the smell from the truck. He admitted
at trial that he bought the supplies and did most of the work
building the barbecue pit that was used to conceal the victim’s
body. After the Appellant was arrested, he lied to the detective
about helping the victim move. While he claimed that his twin
told him to tell that story when they were being arrested,
Christopher did not tell the detective the same story. Instead,
Christopher would only say that he had not seen the victim in
over a month.
The Appellant also appears to be the only one who benefitted
from the sale of the victim’s trading card collection. He bought
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the Sebring and the BMW after selling the cards and admittedly
used money earned by selling the victim’s cards to pay for the
repairs to the Sebring. No evidence suggested that his brother
bought anything with the trading card money.
By contrast, Christopher’s contributions to the murder
appear to be his initials on a rental agreement for a Georgia
storage unit and possibly a request to their father to throw away
the victim’s spoon collection. Otherwise, Christopher was either
passively present during the events while the Appellant did the
talking or was not present at all. Furthermore, their father
testified that he used to tease the Appellant that he was the
husband and his brother was the wife because the Appellant was
the “lead twin.” Additionally, after the Appellant was arrested, he
wrote his father a letter from jail threatening to commit suicide
and stating, “I just feel like this is my only choice and if we go to
trial, they will go after Chris, too. I will not let that happen. He
would not have been in this situation if not for me.” Under these
circumstances, additional evidence of Christopher’s involvement
would not have resulted in the Appellant being acquitted at trial.
In the Appellant’s third ground, he argued that his attorney
was ineffective for failing to file a motion to suppress his
statements to the police on the basis that they were made before
he was read his Miranda 1 rights. He alleged that he was
prejudiced because the prosecutor relied on these statements
during trial to depict him as untruthful.
Even assuming that defense counsel’s performance could be
considered deficient in this regard, given the evidence discussed
above, there is no reasonable probability that the outcome of the
trial would have been different if the statements had been
suppressed. He did not incriminate himself during the interview,
and there was overwhelming evidence of his guilt. Furthermore,
suppression of his statements would not have prevented the
prosecutor from depicting him as untruthful. The evidence
reflected that the Appellant lied to Ms. Burke about the victim’s
whereabouts, to the detective about helping the victim move to
1 Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602,
16
L. Ed. 2d 694 (1966).
9
Cantonment, to his father about the smell coming from the U-
Haul, to the yard crew about owning the victim’s home, and to
the victim’s neighbor about the victim moving in with him.
Therefore, this ground was properly denied.
In the Appellant’s fourth ground, he argued that his attorney
was ineffective for failing to object to the introduction of the
victim’s autopsy photos. He alleged that the photos were
irrelevant and prejudicial, as they only served to trigger an
emotional response in the jurors.
“Relevant evidence is evidence tending to prove or disprove a
material fact.” § 90.401, Fla. Stat. (2012). “Relevant evidence is
inadmissible if its probative value is substantially outweighed by
the danger of unfair prejudice . . . .” § 90.403, Fla. Stat. (2012).
“Photographs are admissible if they assist the medical examiner
in explaining to the jury the nature and manner in which the
wounds were inflicted.” Ault v. State,
53 So. 3d 175, 198 (Fla.
2010) (internal citations omitted). “Moreover, photographs are
admissible to show the manner of death, location of wounds, and
identity of the victim.”
Ault, 53 So. 3d at 198 (internal citations
omitted).
Here, the photographs were introduced to show how the
victim was discovered, wrapped in a tarp inside a plastic bin with
numerous air fresheners. This tended to connect the Appellant to
the offense due to his admitted purchase of the tarp, plastic bin,
and air fresheners on the last day anyone heard from the victim.
The photographs were also used to explain the blunt force and
sharp force injuries to the victim’s head and neck that ultimately
caused his death. The medical examiner testified that the
photographs would help her explain the type and number of
wounds and their location. Additionally, she used the
photographs to explain how she determined what type of weapon
was used to kill the victim. Lastly, the State introduced
photographs to show how the victim was dressed at the time of
his death, which was relevant given the question as to when the
victim was killed. Under these circumstances, any objection by
defense counsel would have been overruled, as the photographs
were relevant and that relevance was not outweighed by their
prejudicial value. See Hitchcock v. State,
991 So. 2d 337, 361 (Fla.
10
2008) (“Counsel cannot be deemed ineffective for failing to make
a meritless objection.”).
In the Appellant’s fifth ground, he argued that the
cumulative effect of counsel’s errors in grounds one through four
denied him a fair trial. However, because those individual claims
of error are meritless for the reasons discussed above, any claim
of cumulative error must also fail. See Barnhill v. State,
971 So.
2d 106, 118 (Fla. 2007) (“Because all of the allegations of
individual legal error are without merit, a cumulative error
argument based upon these errors must also fail.”).
In the Appellant’s sixth ground, he argued that the State
committed a Brady 2 violation by withholding evidence from the
defense. The Appellant alleged that surveillance videos that were
introduced at trial depicted him renting and returning U-Haul
trucks at two different locations. He asserted that if the entire
second video was shown instead of the edited version, it would
have shown that his father and niece accompanied him to the U-
Haul facility, thereby undermining his father’s trial testimony.
He claimed that he did not have access to the entire second video
prior to trial, but expressed his objection to his attorney to the
edited version being shown both before trial and while the video
was being played.
To establish a Brady violation, a defendant must show that:
“(1) the evidence was either exculpatory or impeaching; (2) the
evidence was willfully or inadvertently suppressed by the State;
and (3) because the evidence was material, the defendant was
prejudiced.” Davis v. State,
136 So. 3d 1169, 1184 (Fla. 2014).
However, “a Brady claim cannot stand if a defendant knew of the
evidence allegedly withheld or had possession of it, simply
because the evidence cannot then be found to have been withheld
from the defendant.” Geralds v. State,
111 So. 3d 778, 787 (Fla.
2010) (quoting Occhicone v. State,
768 So. 2d 1037, 1042 (Fla.
2000)).
2 Brady v. Maryland,
373 U.S. 83,
83 S. Ct. 1194,
10
L. Ed. 2d 215 (1963).
11
Here, the record reflects that the video was not edited, but
fast-forwarded past irrelevant portions. This was done with
defense counsel’s consent. Furthermore, the Appellant’s own
allegations indicate that he was aware that there was additional
footage in the video that was not played during trial. Under these
circumstances, the existence of the full version of the second
video is not Brady evidence, as it was known to the defense.
Regardless, the Appellant cannot show prejudice in light of the
evidence discussed above.
In the Appellant’s seventh ground, he argued that his
attorney was ineffective for failing to investigate a letter that
Christopher sent to the prosecutor before trial. The Appellant
alleged that in this letter, his brother took responsibility for the
disposal of the victim’s body and claimed the Appellant was not
involved in transporting or hiding it. The Appellant asserted that
his attorney declined to present the letter at trial due to his
concern about statements coming in that his brother had made to
the detectives. The Appellant indicated that these statements
detailed how he stabbed the victim and chased him around the
house before killing him with a hammer. The Appellant argued
that these statements were easily refuted by the medical
examiner’s testimony that the stab wounds appeared to have
been inflicted post-mortem. The Appellant alleged that this letter
would have supported his reasonable hypothesis of innocence and
the proceedings may have had a different outcome.
Even assuming that counsel can be deemed deficient for
failing to introduce the letter, the Appellant cannot show
prejudice. The Appellant does not suggest that his brother
claimed responsibility for the murder in the letter, only the
disposal of the body. Thus, this letter would not have proven that
the Appellant was not responsible for killing the victim.
Furthermore, in view of the evidence discussed above, there is no
reasonable probability that it would have changed the outcome of
the trial.
AFFIRMED.
ROWE and WINOKUR, JJ., concur.
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_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
William J. Cormier III, pro se, Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
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