Andrew Richard Allred v. State of Florida

Supreme Court of Florida
____________
No. SC13-2170
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ANDREW RICHARD ALLRED,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[January 14, 2016]
PER CURIAM.
In this case, Andrew Richard Allred, a prisoner under sentence of death,
appeals an order denying his initial motion for postconviction relief under Florida
Rule of Criminal Procedure 3.851 to vacate his first-degree murder convictions and
sentences of death for the murders of Michael Ruschak and Tiffany Barwick. This
Court has jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons we explain
here, we affirm the postconviction court’s order entered after the evidentiary
hearing denying postconviction relief.
I. BACKGROUND
A. Conviction and Sentence
Allred was indicted on October 23, 2007, on the following
charges alleged to have occurred on September 24, 2007: (1) first-
degree premeditated murder of Michael Ruschak by shooting with a
firearm; (2) first-degree premeditated murder of Tiffany Barwick by
shooting with a firearm; (3) armed burglary of a dwelling while
inflicting great bodily harm or death; (4) aggravated battery with a
firearm (victim Eric Roberts) while inflicting great bodily harm or
death; and (5) criminal mischief of a motor vehicle (Barwick’s car).
Then, on April 30, 2008, Allred entered written and oral guilty pleas
to all charges. The trial court conducted a plea colloquy of the
defendant and accepted the guilty plea . . . .
Allred v. State, 55 So. 3d 1267, 1271 (Fla. 2010). Against advice of counsel,
Allred subsequently waived both his right to a penalty phase jury and his right to
be present in the penalty phase. The facts of the case and the evidence presented
during the penalty phase are more fully described in this Court’s opinion on
Allred’s direct appeal. We briefly review them here.
On August 25, 2007, Allred and his girlfriend Tiffany Barwick publicly and
angrily broke up at a party celebrating his twenty-first birthday. Id. at 1272.
Several days later, he used pictures of Barwick for target practice and sent Barwick
a picture of the bullet-ridden photos. Subsequently, upon learning that Barwick
had sexual intercourse with Michael Ruschak, his best friend, Allred sent them
both threatening messages, and he told his friend Michael Siler that he needed to
start killing some people. Id.
On September 24, the day of the murders, Allred hacked Barwick’s
computer and engaged in a heated exchange of messages, telling Barwick that he
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could not forgive her and threatening to kill Ruschak. Id. at 1273. In a separate
exchange, he also told his friend Siler that he would kill both Barwick and
Ruschak. Id. at 1272-73. Sitting at home later that evening, Allred called Ruschak
and announced that he was coming over. Allred then picked up his gun and drove
to Ruschak’s location.
At the time, Ruschak was living at his friend Eric Roberts’ house, as was
Barwick. Four other friends had arrived for dinner that night, when Ruschak
informed them that Allred was coming. Allred arrived soon thereafter and
repeatedly rammed Barwick’s car with his truck. Then, when no one would let
him in the front door, he shot out the glass back door and entered the house as
everyone fled. Id. at 1273.
After firing a shot down the hallway at Ruschak, Allred walked through the
hall to the kitchen and shot Ruschak four times, killing him. Then, Roberts
grabbed Allred, and they struggled until Allred shot Roberts in the leg. Allred
proceeded to the hall bathroom where he found Barwick standing in the bathtub,
frantically talking to a 911 operator. “In his confession, Allred recounted that after
he gained his release from Roberts, he entered the bathroom. Then, without saying
a word, he fired [six] shots into Barwick. She collapsed in the tub and died.” Id. at
1274.
After leaving the crime scene, [Allred] called 911. He reported
that he had killed two people and threatened to commit suicide. When
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Deputy Sheriff David Kohn arrived at Allred’s home, Allred was
standing at the end of his driveway near the road, with a cell phone in
his hand and his gun on the ground. Upon initial contact, Allred told
the officer, “I’m the guy you’re looking for.” After the officer
secured him, Allred asked “if the people were dead,” but the officer
told him he could not provide that information. Then, in the patrol
car, Allred stated, “I knew I killed someone, I shot fourteen times.”
Id. After being turned over to the Oviedo Police Department and being advised of
his rights, he again confessed to the murders. Id.
In mitigation, Appellant’s mother, father, and grandfather testified regarding
Allred’s formative years, noting his personality change at a young age, a tic
disorder he developed, and his diagnosis of attention deficit hyperactivity disorder
(ADHD). Id. 1275. Three of his school teachers testified to his high IQ and
abilities in school. Id. at 1276. Allred was sentenced to death for each of the
murders.
[T]he court found the following three aggravating factors and ascribed
the weight indicated as to Allred’s murder of Michael Ruschak: (1)
cold, calculated, and premeditated (CCP)—great weight; (2) murder
committed while engaged in a burglary—little weight; and (3) prior
capital or violent felony conviction (Barwick’s contemporaneous
murder)—great weight. As to Barwick’s murder, the court found the
following three aggravators and ascribed the weight indicated: (1) the
murder was especially heinous, atrocious, or cruel (HAC)—great
weight; (2) CCP—great weight; and (3) prior capital or violent felony
conviction (Ruschak’s contemporaneous murder)—great weight. The
court also considered the following mitigating circumstances and
ascribed the weight indicated: (1) defendant accepted responsibility by
entering guilty pleas—little weight; (2) defendant cooperated with law
enforcement—moderate weight; (3) defendant suffered from an
emotional disturbance—moderate weight; (4) defendant’s emotional
and developmental age was less than his chronological age—not
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established; (5) other factors including that defendant was likely
sexually abused—not established; and (6) defendant’s developmental
problems at a young age impacted his educational and social
development—little weight.
Id. at 1277 (footnote omitted).
B. Direct Appeal
On direct appeal, Allred raised the following claims: (1) the CCP aggravator
does not apply to either murder; (2) the HAC aggravator does not apply to
Barwick’s murder because “[her] death from Allred’s rapid gunshots was nearly
instantaneous and thus the victim’s fear of impending death could only have lasted
a matter of seconds”; and (3) the trial court erred in considering mitigation by (a)
ascribing little weight to Allred’s guilty plea and (b) rejecting as mitigation the
factors of extreme emotional disturbance, Allred’s age at the time of the murders,
and the contention “that [Allred] was ‘likely’ sexually abused as a child.” Id. at
1277-83. He also argued that the court erred by failing to consider mitigation that
he did not “specifically propose . . . as separate, nonstatutory mitigating factors.”
Id. at 1282. For the reasons explained in the opinion, we affirmed the trial court’s
judgment on all issues raised and determined that the guilty pleas were voluntary
and the death sentences were proportional. Id. at 1283-84.
C. Postconviction Proceedings
In 2012 Appellant, through counsel, filed a motion for postconviction relief
under Florida Rule of Criminal Procedure 3.851 and amended the motion in 2013.
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In the motion, Appellant raised the following claims: Trial counsel provided
constitutionally ineffective assistance by (1) failing to ensure Appellant received a
reasonably competent mental health evaluation; (2) failing to investigate all
circumstances bearing on Appellant’s decision to plead guilty and advise Appellant
accordingly; (3) causing Appellant to involuntarily waive a penalty phase jury; (4)
failing to employ a mitigation expert; and (5) failing to investigate and present
mitigation regarding Appellant’s ability to adapt to prison life. In addition,
Appellant argued that (6) the cumulative errors of counsel deprived him of a fair
trial; (7) Florida’s capital sentencing statute is unconstitutional on its face and as
applied; (8) the Eighth Amendment prohibition of the United States Constitution
on cruel and unusual punishment will be violated if he is incompetent at the time of
his execution; (9) Florida’s lethal injection method constitutes cruel and unusual
punishment under the Eighth Amendment; and (10) section 945.10, Florida
Statutes, which prohibits Appellant from knowing the identities of his execution
team, violates his rights under provisions of the federal and Florida Constitutions.
The circuit court denied Appellant’s later request to amend his postconviction
motion with a claim that counsel was ineffective for failing to ensure the
procedures of Koon v. Dugger, 619 So. 2d 246 (Fla. 1993), and Muhammad v.
State, 782 So. 2d 343 (Fla. 2001), were followed. The postconviction court
pointed out that Appellant failed to show the cases applied in light of defense
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counsel having presented mitigation in the case. Moreover, Appellant did not
allege that the facts supporting the claim were unknown at the time the
postconviction motion was filed.
The trial court held an evidentiary hearing on the first three claims. Trial
defense counsel Timothy Caudill and Rebecca Sinclair testified, as did Dr.
Deborah Day, Ph.D., clinical director of Psychological Affiliates, who was
engaged by defense counsel to conduct mental health interviews and testing of
Appellant in preparation for the penalty phase. Dr. Jeffrey Danziger, M.D., a
forensic psychologist, who examined Appellant before the penalty phase and found
him competent, also offered testimony for the State. Appellant presented the
testimony of two clinical psychologists, Dr. Glenn Caddy, Ph.D., who testified
Appellant was in a dissociative state at the time of the murders, and Dr. Gary
Geffken, Ph.D., who opined that Appellant suffers from an autism spectrum
disorder (ASD) but is high functioning. Finally, Dr. Harvey Moore, Ph.D., of Trial
Practices, Inc., who advises attorneys on trial issues, such as jury selection and trial
strategy, testified for Appellant regarding the considerations involved in making
venue decisions and other consulting services his company provides to trial
counsel. Subsequently, the circuit judge issued an order denying all claims in
Appellant’s postconviction motion. Appellant filed the instant appeal.
II. ANALYSIS
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In this case, Appellant raises three claims that trial counsel provided
constitutionally ineffective assistance and challenges the constitutionality of
several of Florida’s death penalty provisions. Specifically, Allred contends as
follows. The postconviction court erred in denying his claims that trial counsel
provided constitutionally ineffective assistance by (A) failing to obtain a
competent mental health evaluation; (B) failing to conduct an adequate
investigation and advise him regarding the guilty plea; and (C) failing to move for
change of venue and hire a trial consultant. In addition, the postconviction court
erred in (D) denying Appellant’s contention that cumulative error denied Allred a
fair trial. Appellant then contends that (E) Florida’s capital sentencing statute is
unconstitutional; (F) his execution would violate the Eighth Amendment of the
United States Constitution; (G) Florida’s lethal injection method is
unconstitutional; and (H) the Florida statute that protects the identities of his
executioners is unconstitutional. Below, we address each claim in turn.
The claims of ineffective assistance of counsel present mixed questions of
law and fact subject to plenary review. Occhicone v. State, 768 So. 2d 1037, 1045
(Fla. 2000). To obtain relief on a claim of ineffective assistance of counsel, the
defendant must first identify specific acts or omissions of counsel that are “so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
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Then, the defendant must establish prejudice by demonstrating a reasonable
probability that, “but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. A reasonable probability is a
“probability sufficient to undermine confidence in the outcome.” Id. Where, as in
this case, the defendant pleaded guilty, however, the second prong of the
ineffectiveness test is somewhat altered. Thus, Allred must establish prejudice by
demonstrating “a reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart,
474 U.S. 52, 59 (1985). “Unless a defendant makes both showings, it cannot be
said that the conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.” Lynch v. State, 2 So. 3d 47,
57 (Fla. 2008) (quoting Strickland, 466 U.S. at 687). This Court independently
reviews the trial court’s legal conclusions and defers to the trial court on questions
of fact. Below, we address each issue in turn and then conclude that the
postconviction court’s order denying relief must be affirmed. As explained below,
Appellant failed to establish either prong of Strickland as to each claim.
The other claims presented by Appellant are also without merit.
A. Ineffective Assistance Regarding Mental Health Mitigation
Appellant argues trial counsel provided ineffective assistance by failing to
ensure Allred had a reasonably competent mental health evaluation. Specifically,
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he contends that trial counsel (1) misinterpreted and unreasonably relied on Dr.
Deborah Day’s opinion, and (2) failed to adequately investigate Allred’s
background and to present a mental health expert.
1. Reliance on Expert Opinion
Allred contends the postconviction court erred in denying his ineffective
assistance of counsel claim, because defense counsel misinterpreted Dr. Deborah
Day’s diagnosis and unreasonably relied on Dr. Day’s expertise as a mental health
expert. The evidence presented at the hearing showed that defense counsel
Timothy Caudill retained Dr. Day, a forensic clinical psychologist and director of
Psychological Affiliates, to evaluate Allred. Caudill had previously employed Dr.
Day’s services for evaluations of defendants in capital cases and expert mental
health testimony. Her practice employs a team approach, with each professional in
the practice on a particular client’s team participating in the evaluation and the lead
expert making the final diagnosis. Dr. Day and two other psychologists, Dr.
Robert Janner and Dr. Amanda Janner, interviewed Appellant, obtained and
examined Appellant’s school and medical records, police and other reports
pertaining to the crime, including Allred’s text messages, the tape of Allred’s
police interview, and Barwick’s 911 call, and conducted and reviewed
psychological testing of Appellant. The testing included the WAIS-III (Wechsler
Adult Intelligence Scale), MMPI-2 (Minnesota Multiphasic Personality Inventory,
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Second Edition), VIP (Validity Indicator Profile), and an IQ test. As lead, Dr. Day
was responsible for any diagnosis in the case.
The evidence presented at the evidentiary hearing showed that as the penalty
phase proceeding approached, Attorney Caudill encountered Dr. Day at the jail and
inquired whether she had any mitigation to help Allred’s case. According to
Caudill, she responded that she did not have anything helpful, explaining that if she
had to testify to a diagnosis it would be antisocial personality disorder (ASPD) or
possibly that Allred is a psychopath or sociopath. Although defense counsel
understood that Dr. Day had not made a final diagnosis, he deemed such testimony
would be harmful to the case and—after consultation with co-counsel—made the
strategic decision not to use the mental health expert’s testimony. Co-counsel
Sinclair memorialized their tactical decision in a research memorandum that stated
in part that Dr. Day had “concluded” that Allred was a psychopath or sociopath.
Dr. Day testified at the postconviction hearing that she never reached a
formal diagnosis of Allred. If she had testified at trial, however, she would have
opined that Allred’s personality evidenced all but one of the elements of ASPD: he
lacked a conduct disorder extending from childhood or adolescence into adulthood.
In addition, he evidenced traits of sociopathy and psychopathy. Allred was
deceptive and had poor impulse control, anger issues, and a history of
manipulations and antisocial beliefs, among others. In addition, Allred’s MMPI-2
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results showed elevated scores on the psychopathic deviate scale. Moreover, Dr.
Day reported to Caudill that Allred recounted the murders to her in vivid detail,
reflecting cold, calculated, and premeditated acts. And Allred felt justified in the
murders and demonstrated a lack of remorse, empathy, and understanding of what
Barwick’s family was experiencing. For example, while awaiting trial, Allred
wrote several letters to Barwick’s family. When he learned that they tried to block
receipt of his letters, he wrote a letter excoriating them and wishing them lives of
misery.
The postconviction court found that trial counsel’s memorandum overstated
Dr. Day’s “conclusion” because Dr. Day never made a formal diagnosis.
However, the court deemed trial counsel’s reliance on Dr. Day’s representations in
making the strategic decision not to use her testimony was not unreasonable. She
had clearly indicated to Caudill that her testimony would be more aggravating than
mitigating. In addition, by not using her expert testimony, Caudill kept out
testimony about Allred’s lack of empathy or remorse.
As evidenced by the foregoing discussion, Caudill did not misunderstand Dr.
Day; she had little in the way of mitigation to help Allred’s case. Although
testimony of such mental health disorders or traits of disorders, such as ASPD,
may be viewed as mitigating in certain circumstances, the mental health factors in
this case are generally deemed aggravating. In Looney v. State, 941 So. 2d 1017,
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1028 (Fla. 2006), for example, the defendant, like Allred, raised a postconviction
claim that counsel was ineffective for failing to present the testimony of a mental
health expert during the penalty phase. Defense counsel, like counsel in the instant
case, had retained a mental health expert but chose not to have him testify because
it would be too prejudicial. The expert’s diagnosis was that Looney
was a psychopath who typically display[ed] social maladjustments or
socially unacceptable behavior traits such as lack of remorse, criminal
behavior, superficial charm, grandiose sense of self worth, the need
for stimulation, pathological lying, manipulativeness, shallow
emotions, difficulty with lasting relationships, impulsivity, poor
behavior control, lack of empathy, etc.
Id. In Looney, this Court recognized the prior approval of such a strategic decision
and reiterated that “a diagnosis as a psychopath is a mental health factor viewed
negatively by jurors and is not really considered mitigation.” Id. at 1028-29.
Accordingly, we held that “defense counsel [was] not ineffective for deciding not
to seek an additional mental health evaluation after receiving an extremely
unfavorable evaluation.” Id. at 1029. See Floyd v. State, 18 So. 3d 432, 453-54
(Fla. 2009) (holding defense counsel made a strategic—not a deficient—decision
not to present doctor’s ASPD diagnosis of defendant because evidence was
harmful, not mitigating).
In this case, Appellant’s trial counsel was not deficient for choosing not to
present Dr. Day’s testimony. Although she did not reach the ASPD diagnosis, her
testimony that Allred met all but one of the factors essential to the diagnosis would
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not have been mitigating in nature. Neither would her testimony that he had some
of the traits of a sociopath and a psychopath. As the postconviction court found,
Dr. Day is a well-qualified expert who has testified in other death penalty
proceedings, and trial counsel’s reliance on her professional assessment—albeit
not a formal diagnosis—was not unreasonable. Accordingly, we affirm the
postconviction court’s determination that trial counsel’s decision not to use a
mental health professional was strategic in nature, not evidence of deficient
performance.
2. Background Investigation and Expert Mental Health Witness
Appellant next argues that counsel was ineffective for failing to conduct a
sufficient background investigation and to present a mental health expert in the
penalty phase. We disagree. First, as recounted in the opinion affirming
Appellant’s conviction and sentence, trial counsel conducted a background
investigation. Defense counsel interviewed and presented a number of witnesses
in mitigation during the penalty phase, including Appellant’s mother, father,
paternal grandfather, and three of Allred’s teachers (one each from elementary,
middle, and high school). The defense also obtained school, medical, and police
records. Allred, 55 So. 3d at 1275-77. The defense presented evidence in the
penalty phase showing that Allred has a high IQ and left school after eleventh
grade, but obtained his high school diploma at a community college and earned a
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two-year degree in accounting at another. Until the day of the murders, “[h]e was
employed full time teaching the use of software, and he paid for his own car and
cell phone.” Id. at 1275. In his youth, however, Allred was diagnosed by a
psychiatrist as having a “tic disorder” that he subsequently outgrew and ADHD. In
addition, he had difficulty with social relationships and witnessed an instance of
his father’s domestic violence on his mother. The evidence also showed that
defense counsel investigated the possible sexual abuse of Appellant by his
grandfather. Counsel, however, was unable to obtain any supporting testimony,
and Appellant denied such abuse occurred and specifically forbade presentation of
any such testimony.
Defense counsel’s decision not to present Dr. Day’s mental health testimony
did not require the continued search for a more favorable mental health opinion.
See Anderson v. State, 18 So. 3d 501, 511-12 (Fla. 2009) (“The fact that [the
defendant] has subsequently found experts whose opinions conflict with [the
mental health expert’s] opinion does not render the earlier evaluation
inadequate.”); Sexton v. State, 997 So. 2d 1073, 1085 (Fla. 2008) (stating
subsequent finding of an expert who disagrees with “the extent or type of testing
performed, or the type of mitigation presented, does not mean that trial counsel
was deficient at trial”). Nevertheless, Appellant urges that counsel should have
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gone expert shopping, citing the opinions of Dr. Caddy and Dr. Geffken offered at
the postconviction evidentiary hearing.
Dr. Caddy concluded, based on Appellant’s fragmented memory of the
events some years after the murders, that during the crimes Appellant was in a
dissociative state and thus lacked a rational understanding of the consequences of
his actions at that time. Dr. Geffken, on the other hand, testified that Allred
suffered from an autism spectrum disorder but was high functioning. He stated
that Allred had a high IQ but lacked empathy and sympathy and was unable to
cope with the breakup from Barwick. Dr. Geffken admitted, however, that
Appellant’s actions in the murders were deliberate, albeit atypical of someone with
such a disorder, and that Allred felt no remorse.
The postconviction court rejected both experts’ diagnoses as not credible
based largely on the testimony of Dr. Jeffrey Danziger, who previously examined
Appellant as to the viability of an insanity defense and found Appellant competent.
Danziger again examined Appellant before the postconviction hearing as the
State’s mental health expert. Dr. Danziger testified that, contrary to Dr. Caddy’s
testimony, the evidence showed that Allred was aware of his actions during the
murders. He explained that Appellant threatened to kill the victims, including on
the day of the murders; warned Ruschak prior to his arrival; and when he arrived,
searched out and killed them. Dr. Danziger also disputed Dr. Geffken’s diagnosis
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of autism spectrum disorder, noting the individual must have restrictive or
repetitive patterns of behavior, and Dr. Geffken acknowledged that Appellant had
none.
In light of the foregoing, we affirm the postconviction court’s rejection of
Appellant’s claim that trial counsel provided ineffective assistance of counsel
regarding the presentation of mental health evidence in the penalty phase. As the
circuit court found, the evidence presented established neither that Appellant was
in a dissociative state nor that he suffered from an autism spectrum disorder.
Moreover, securing a more favorable expert opinion does not undermine the
sufficiency of the original expert’s opinion. See Floyd, 18 So. 3d at 453 (“[W]here
counsel did conduct a reasonable investigation of mental health mitigation prior to
trial and then made a strategic decision not to present this information, we have
affirmed the trial court’s findings that counsel’s performance was not deficient.”)
Accordingly, Appellant has demonstrated neither deficiency nor prejudice.
B. Ineffective Assistance Regarding the Guilty Plea
Appellant argues that the trial court erred in denying his claim that counsel
was ineffective for failing to conduct an adequate investigation and advise him
regarding his guilty plea. Specifically, he claims counsel failed to develop a
relationship of trust with Appellant and failed to present evidence that Appellant
was unable to form the requisite premeditation for first-degree murder or the
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heightened premeditation required for the CCP aggravator. The postconviction
court denied the claim, determining that Allred failed to demonstrate a reasonable
probability that he would not have pleaded guilty but for counsel’s errors. See
Hill, 474 U.S. at 58-59. We affirm the postconviction court’s decision.
Appellant did not testify at the evidentiary hearing, and as the postconviction
court found, no evidence was offered to support his claims. Regarding the first
claim, the testimony that was presented by various witnesses shows that Caudill or
one of his associates regularly met with Appellant. Caudill discussed the process
and plans with Appellant, cautiously determining what Appellant would and would
not allow. Appellant, however, never wavered in his desire to waive trial and
plead guilty, despite counsel’s efforts to persuade him otherwise. In fact, the
record shows that Appellant’s decisions were made against the advice of counsel
and there was nothing counsel could have done to change Appellant’s mind.
Regarding the second contention that counsel did not investigate evidence of
Appellant’s mental status to negate the element of premeditation, the evidence is to
the contrary. Defense counsel had Appellant evaluated for competency and for
mitigation. Dr. Danziger found Appellant competent, and although Dr. Day did
not reach a diagnosis, she found that Appellant did not lack the ability to form the
requisite intent for the murders and that she could not provide any mitigation.
Appellant’s claim that he lacked the heightened intent is based on his own self-
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serving statement to police at the time of his arrest that he went to the house that
evening only to bash Barwick’s car. Allred, 55 So. 3d at 1274-75. The evidence
shows that Appellant threatened to kill the victims earlier on the day of the
murders. Id. at 1278. Then, knowing Ruschak and Barwick would be at a friend’s
house, he contacted Ruschak and announced that he was coming over. Taking his
loaded gun, he went out to his truck. As previously stated, when he arrived, he
smashed Barwick’s car, but he did not leave. Without provocation from anyone in
the house, he picked up his gun, went to the front door, and demanded entry.
Failing that, he went to the back of the house and fired his gun into the glass door,
shattering it. He went directly to the kitchen and fired four shots into Ruschak’s
chest, killing him, and then to the bathroom where he fired six bullets into
Barwick’s body, killing her. Id. at 1280. Allred shot at only one other person in
the house. He fired one bullet into the leg of someone attempting to stop him from
killing Ruschak. After leaving the house, Appellant called and surrendered to the
police, stating that he had killed two people. Id. at 1274.
Appellant’s contention that counsel should have presented evidence
rebutting both premeditation and CCP is unsupported by any evidence. Moreover,
Appellant’s self-serving, after-the-fact claim that he did not have a premeditated
design does not negate the clear evidence of premeditated murder. We have
previously affirmed Appellant’s guilty pleas to the charges of first-degree,
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premeditated murder and the finding of the CCP aggravator as to each murder. Id.
at 1277-79. Accordingly, we affirm the postconviction court’s denial of this claim.
C. Ineffective Assistance Regarding Venue,
Mitigation Investigation, and Jury Selection
In his postconviction motion, Allred alleged that his waiver of a jury in the
penalty phase was involuntary because trial counsel provided ineffective assistance
by (1) failing to move for a change of venue and (2) failing to hire an advisor
regarding the mitigation investigation and jury selection. The postconviction court
denied the claim, finding no evidence supported Appellant’s contention that he
would not have waived the penalty phase jury but for counsel’s alleged
ineffectiveness. Below, we address each claim in turn.
1. Venue
First, as we have previously noted, the determination whether to seek a
change of venue “is usually considered a matter of trial strategy . . . and therefore
not generally an issue to be second-guessed on collateral review.” Rolling v. State,
825 So. 2d 293, 298 (Fla. 2002). To meet the first prong of Strickland on an
ineffectiveness claim regarding venue, the defendant must establish that grounds
for a change of venue existed. To establish prejudice on such a claim—the second
prong—the defendant must produce evidence “demonstrating that there is a
reasonable probability that the trial court would have, or at least should have,
granted” a change of venue motion. Id. at 303 (quoting Wike v. State, 813 So. 2d
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12, 18 (Fla. 2002)). A change of venue should be granted where a community “is
so infected by knowledge of the incident and accompanying prejudice, bias, and
pre-conceived opinions that jurors could not possibly put these matters out of their
minds and try the case solely on the evidence presented in the courtroom.”
Chandler v. State, 848 So. 2d 1031, 1036 (Fla. 2003) (quoting Rolling v. State, 695
So. 2d 278, 284 (Fla. 1997)).
The postconviction court in this case was correct to deny Appellant’s venue
claim because Appellant failed to present any evidence as to either prong of the
Strickland test for ineffective assistance. Dr. Moore, Allred’s professional trial
consultant in the postconviction proceedings, testified at the evidentiary hearing
that articles about the murders appeared in the local press, but he did not discuss
either their nature or their effect on the community and provided no
recommendation regarding change of venue in this case. As the postconviction
court found, Dr. Moore testified to the services he could have offered had he been
hired as a consultant. Moreover, at the evidentiary hearing, defense counsel
Caudill cited several reasons that there was no concern regarding venue. First,
although there had been some publicity about the murders, the defense attorneys in
their professional judgment thought it insufficient to warrant a change of venue.
Caudill had confidence in the trial judge, whom he knew to be experienced in
death penalty proceedings and well-respected in that area of law. Finally, although
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defense counsel wanted to seat a jury for the penalty phase in hopes of garnering a
life recommendation or some votes for life, Appellant did not agree. Having
pleaded guilty against advice of counsel, Appellant wanted to waive the penalty
phase entirely. Counsel, however, explained that such a proceeding was required
for the trial court to determine the penalty. Nevertheless, against the advice of
counsel, Allred waived having a jury in the penalty phase. Accordingly, we affirm
the postconviction court’s denial of Appellant’s ineffective assistance of counsel
claim regarding venue.
2. Failure to Hire a Trial Consultant
Finally, Appellant argues that counsel was ineffective for failing to engage a
trial consultant, like Dr. Moore, to advise defense counsel on voir dire, aid in
researching mitigation, and assist his attorneys in developing trial strategy. The
postconviction court did not err in denying this claim.
Caudill, lead trial counsel, testified that he was an experienced criminal trial
attorney who had previously represented a number of clients in death cases. Thus,
he had experience in developing questions for voir dire, researching mitigation,
determining whether to seek a change of venue, and developing trial strategy—all
aspects of being a trial lawyer. As explained above, there was no trial for which to
prepare because Appellant pleaded guilty against advice of counsel; there was no
jury in the penalty phase because of Appellant’s jury waiver against advice of
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counsel; and there was no basis for or need to request a change of venue. As for
the mitigation investigation, defense counsel hired an investigator to conduct a
search of Appellant’s background and retained Dr. Day to conduct the mental
health examination. In addition, Caudill and co-counsel conducted interviews of
Appellant, his teachers, family, and others and obtained records and other materials
regarding Allred’s family, school, and medical history.
Dr. Moore, on the other hand, did not testify as to any aspect of this case that
would require his assistance. He suggested only that the development of evidence
in mitigation that Appellant was sexually abused would have been helpful.
However, Caudill’s team obtained evidence of a troubled childhood and on its own
initiative investigated the possible sexual abuse of Allred by a relative. Appellant,
however, denied such abuse occurred and disallowed any evidence suggesting that
it took place. Accordingly, Appellant failed to demonstrate that defense counsel
was deficient for not having hired a trial consultant.
D. Cumulative Error
Appellant contends that the cumulative effect of errors of counsel discussed
above regarding his guilty plea and the penalty phase denied him the fundamental
rights guaranteed him by the United States Constitution under the Sixth, Eighth,
and Fourteenth Amendments. Because Appellant has demonstrated neither
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deficiency nor prejudice as to any of his claims, the claim of cumulative error fails.
Accordingly, we affirm the denial of relief on this claim.
E. Unconstitutional Capital Sentencing Statute
Appellant next argues in conclusory fashion that Florida’s capital sentencing
statute, section 921.141, Florida Statutes, is unconstitutional on its face and as
applied. We have previously addressed the question of the statute’s
constitutionality on a number of occasions and upheld its constitutionality. Lowe
v. State, 2 So. 3d 21, 46 (Fla. 2008) (citing prior cases). Accordingly, we affirm
the circuit court’s order denying relief on this claim.
F. Incompetency at Execution
Appellant concedes that the circuit court correctly denied as premature the
claim that his execution would violate the Eighth Amendment if he is not
competent at that time. See Hall v. Moore, 792 So. 2d 447, 450 (Fla. 2001)
(agreeing Hall’s Eighth Amendment claim that he may be incompetent at the time
of execution was “premature” and that Hall conceded “that he cannot legally raise
the issue of his competency to be executed until after a death warrant is issued”).
Accordingly, we affirm the postconviction court’s denial of this claim.
G. Constitutionality of Lethal Injection
Appellant claims that Florida’s current lethal injection method of execution
constitutes cruel and unusual punishment and its use would deprive him of his
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constitutional rights of due process and equal protection in violation of the Eighth
and Fourteenth Amendments to the United States Constitution and corresponding
sections of the Florida Constitution. Specifically, he contends that Florida’s
present lethal injection procedures create an unconstitutional risk of unnecessary
and wanton infliction of pain and cites as evidence the 2006 execution of Angel
Diaz. Allred’s mere reference to the Diaz execution in contesting the present
protocol for execution by lethal injection, however, does not satisfy his “heavy
burden” to show “a substantial risk of serious harm, an objectively intolerable risk
of harm that prevents prison officials from pleading that they were subjectively
blameless for purposes of the Eighth Amendment.” Howell v. State, 133 So. 3d
511, 517 (Fla.) (quoting Pardo v. State, 108 So. 3d 558, 562 (Fla. 2012)), cert.
denied, 134 S. Ct. 1276 (2014). See Butler v. State, 100 So. 3d 638, 670-71 (Fla.
2012) (“Here, [the Appellant’s] only factual basis for challenging Florida lethal
injection protocol—the execution of Angel Diaz—has previously been considered
and rejected by this Court.”). This Court previously has rejected similar challenges
to Florida’s lethal injection protocol. See, e.g., Chavez v. State, 132 So. 3d 826
(Fla.) (rejecting Eighth Amendment challenge to lethal injection drug protocol as
“completely speculative”), cert. denied, 134 S. Ct. 1156 (2014); Muhammad v.
State, 132 So. 3d 176, 197 (Fla. 2013) (denying relief because appellant failed to
establish use of current three-drug lethal injection protocol risked violating the
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Eighth Amendment). Accordingly, we affirm the postconviction court’s denial of
relief on this claim.
H. Execution Team Prohibition
Appellant contends that section 945.10, Florida Statutes, which prevents a
defendant from knowing the identities of his executioners, is unconstitutional. We
have previously found this claim and similar challenges to this statutory provision
to be meritless. Darling v. State, 45 So. 3d 444, 448 (Fla. 2010) (“[T]his Court has
consistently rejected similar claims on the merits.”); accord Turner v. State, 143
So. 3d 408, 419 (Fla. 2014). Moreover, as this Court pointed out in Darling, “as of
this date the Governor has not signed a death warrant for [Allred]; thus, even if
ordered to do so, the Department of Corrections could not state with any certainty
who [Allred’s] eventual executioners will be.” 45 So. 3d at 448. Accordingly, we
affirm the denial of this claim.
III. CONCLUSION
Having considered the issues raised by Appellant in this appeal from the
denial of Appellant’s motion for postconviction relief, we affirm the
postconviction court’s order for the reasons explained above.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Seminole County,
Jessica J. Recksiedler, Judge - Case No. 592007CF004890A000XX
James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Middle Region,
Mark S. Gruber, Capital Collateral Regional Counsel, Middle Region, and Julie A.
Morley, Capital Collateral Regional Counsel, Middle Region, Tampa, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Mitchell David Bishop,
Assistant Attorney General, and Stacey E. Kircher, Assistant Attorney General,
Daytona Beach, Florida,
for Appellee
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