& SC17-246 Eric Kurt Patrick v. State of Florida and Eric Kurt Patrick v. Julie L. Jones, etc. - Corrected Opinion

Supreme Court of Florida
____________
No. SC16-801
____________
ERIC KURT PATRICK,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC17-246
____________
ERIC KURT PATRICK,
Petitioner,
vs.
JULIE L. JONES, etc.,
Respondent.
[June 14, 2018]
[CORRECTED OPINION]
PER CURIAM.
Eric Kurt Patrick, a prisoner under sentence of death, appeals an order
denying his motion for postconviction relief filed under Florida Rule of Criminal
Procedure 3.851. Patrick also petitions this Court for a writ of habeas corpus. We
have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that
follow, we affirm in part and reverse in part the postconviction court’s denial of
Patrick’s postconviction motion and remand for an evidentiary hearing on one
claim. We grant Patrick’s petition for writ of habeas corpus, which raises a valid
claim under Hurst v. Florida, 136 S. Ct. 616 (2016), and Hurst v. State (Hurst),
202 So. 3d 40 (Fla. 2016), cert. denied, 137 S. Ct. 2161 (2017).
I. BACKGROUND
In 2009, Patrick was convicted of the kidnapping, robbery, and first-degree
murder of Steven Schumacher. Patrick v. State, 104 So. 3d 1046, 1054 (Fla.
2012). On direct appeal, we affirmed his convictions and sentences, including a
sentence of death for the murder, and summarized the guilt-phase evidence as
follows:
Eric Kurt Patrick was recently released from prison and
homeless when he met Steven Schumacher at Holiday Park during a
rain shower when both men took shelter under a pavilion.
Schumacher invited Patrick to lunch, then to stay with him at his
home until Patrick was back on his feet. On the night of Sunday,
September 25, 2005, Patrick beat Schumacher to death. Patrick left
Schumacher’s apartment and took Schumacher’s truck and parked it
at the Tri–Rail station. Patrick withdrew approximately $900 from
Schumacher’s bank account using his ATM card in three separate
transactions. Patrick was arrested after a separate, unrelated
encounter with Deputy Kurt Bukata. Patrick [later] confessed to
beating Schumacher, stated that he was afraid Schumacher was dead,
and that he didn’t mean to kill him.
....
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On the night of the murder, Patrick and Schumacher drank
beers and went to bed. Patrick gave Schumacher a massage, then they
both lay naked in bed. According to Patrick, Schumacher attempted
anal sex, which Patrick refused. Patrick stated that Schumacher was
“riding up on [him] squeezing [him].” After Patrick told him to stop,
Schumacher stopped but tried again later. Patrick then explained that
he “cut loose on [Schumacher].”
Patrick admitted and the evidence verified that Patrick beat
Schumacher in the bedroom, beginning in the bed. He began hitting
Schumacher with his fists but also beat him with a wooden box
because his hands hurt so badly. Schumacher’s nose was broken and
his face was cut. He was hit so hard that his teeth were broken.
Patrick then tied up Schumacher using a telephone cord at the base of
the bed, then taped his mouth when Schumacher yelled for help.
Patrick did not want Schumacher “to go to the law” on him. Patrick
put Schumacher in the bathtub on his side where Schumacher was
later found dead.
Jenny Scott and Robert Lyon, Schumacher’s friends, usually
saw him daily. They last saw Schumacher on [Sunday,] September
25, 2005 . . . . Scott did not hear from Schumacher [after that time,]
and she also noticed his truck was missing. When Scott went to check
on Schumacher on Tuesday, he did not answer so she called the
Sheriff’s Department.
Deputy James Snell responded to Scott’s call. They both went
into the apartment and saw that the bedroom was dark and disarrayed.
Both Deputy Snell and Scott saw blood stains throughout the room.
At that point, Scott ran out of the apartment. Deputy Snell found
Schumacher’s body in the bathtub. The body was very bloody and the
hands and ankles were bound in the back; the head and face were
taped, with the face resting on the drain. The pants were pulled down
although still on the body. The body was cold and stiff and the blood
had pooled. The ankles were bound with torn sheets and a knotted
lamp cord. The wrists were bound by a telephone cord and tape.
There was bruising on an elbow, the chin, and the top of the head.
The tape on the head went both horizontally and vertically and there
was a pillow case folded over the mouth under the tape. The tape
seemed to be one continuous piece. Deputy Snell informed Scott that
Schumacher was dead. Scott then provided the police with a
description of Patrick.
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The deputies found no evidence of forced entry into the
apartment. Additionally, they discovered that the air conditioning was
set at sixty degrees so all the windows had condensation on them. In
the kitchen trash, the deputies found tape matching that used on
Schumacher’s face. Schumacher’s wallet was in the living room.
There were bloody footprints on the tile, a large blood stain on the
bedroom carpet, and blood spatter on the dresser and wall. The
bedroom lamp was cracked and missing its cord. A cord was in the
bed under the sheets. There was blood spatter on the sheets and
headboard. Teeth were found in the bedclothes. A broken box with
blood on it was under the dresser.
Deputy Kurt Bukata ran into Patrick at a gas station and
arrested him on an outstanding warrant. Patrick had injuries on his
knuckles and was carrying a duffel bag. Patrick also had some
abrasions on his upper body. Bukata inventoried the duffel bag and
found blood-stained boots, jeans, briefs, and socks. . . . DNA tests
identified Schumacher’s blood on Patrick’s jeans.
Id. at 1053-54.
Patrick’s jury recommended a death sentence by a vote of seven to five. The
trial court followed the jury’s recommendation, finding seven aggravators1 and
sixteen nonstatutory mitigating circumstances.2 On appeal, this Court struck one
1. The aggravators the trial court found were the following: (1) Patrick was
under a sentence of imprisonment (great weight); (2) Patrick had a prior violent
felony (great weight); (3) the murder occurred in the course of a felony,
specifically robbery or kidnapping (great weight); (4) pecuniary gain (merged with
the in the course of a felony aggravator); (5) the murder was especially heinous,
atrocious, or cruel (great weight); (6) the murder was cold, calculated, and
premeditated (great weight); and (7) the victim was particularly vulnerable due to
advanced age (seventy-two) or disability (great weight).
2. The mitigating circumstances found were the following: (1) Patrick’s
father was physically and mentally abusive (little weight); (2) Patrick had a tragic
youth (little weight); (3) his childhood was unstable (little weight); (4) there was
family abuse (some weight); (5) substance abuse from an early age (little weight);
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aggravator (cold, calculated, and premeditated) but affirmed the death sentence,
finding the consideration of this aggravator harmless error. Id. at 1055, 1068.
Patrick’s death sentence became final in 2013. Patrick v. Florida, 571 U.S. 839
(2013).
Thereafter, Patrick timely filed his initial motion for postconviction relief
under Florida Rule of Criminal Procedure 3.851, followed by a corrected motion,
raising seven claims with subparts.3 Patrick later sought leave to amend his rule
(6) Patrick suffered from severe drug abuse at the time of the crime (some weight);
(7) Patrick sought absolution and forgiveness (little weight); (8) Patrick had
remorse (some weight); (9) he loves his family (little weight); (10) Patrick is close
to his mother (some weight); (11) his brother attended the trial (little weight); (12)
Patrick confessed (little weight); (13) he had good conduct throughout the trial
(little weight); (14) he suffered from emotional stress combined with a history of
family dysfunction (little weight); (15) he had experienced childhood sexual abuse
and exploitation (some weight); and (16) he had some mental health history as
discussed in number 14 (little weight). Patrick, 104 So. 3d at 1055 n.2.
3. Patrick raised the following claims in his corrected rule 3.851 motion: (1)
application of the one-year time limit of rule 3.851 to Patrick’s case violates his
rights to due process and equal protection; (2) section 27.7081, Florida Statutes
(2014), and Florida Rule of Criminal Procedure 3.852 are unconstitutional both
facially and as applied because public records in the possession of state agencies
have been withheld; (3) Patrick is being denied various constitutional rights
because of the rules prohibiting his attorneys from interviewing jurors to determine
the extent to which constitutional error is present; (4.1) trial counsel was
ineffective for failing to properly challenge Patrick’s waiver of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966), and the voluntariness of his confession;
(4.2) trial counsel was ineffective for failing to raise a challenge to the shoeprint
evidence under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); (4.3) the State
failed to disclose that much of the testimony of Martin Diez was false and coerced;
(4.4) the cumulative effect of counsel’s ineffective assistance, prosecutorial
misconduct, and the other errors in this case entitles Patrick to a new trial; (5) trial
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3.851 motion to add a Hurst v. Florida claim. The postconviction court accepted
the amendment and, after an evidentiary hearing on certain claims, denied the
motion in its entirety. As to the Hurst v. Florida claim, the postconviction court
noted that this Court had not yet determined whether the holding in that case would
have retroactive effect and denied the claim without prejudice to Patrick’s filing a
future motion on the same grounds once this Court resolved the retroactivity issue
in then-pending cases.
Patrick appealed the denial of his rule 3.851 motion and filed a petition for
writ of habeas corpus with this Court, requesting relief under Hurst v. Florida and
Hurst. In his appeal, Patrick argues that the postconviction court erred with respect
to the following claims: (1) that he is entitled to a new penalty phase under Hurst v.
Florida; (2) that trial counsel was ineffective for failing to contest Patrick’s
Miranda waiver and the voluntariness of his confession; (3) that trial counsel was
ineffective for failing to raise a Frye challenge to shoeprint evidence or otherwise
contest its credibility; (4) that trial counsel was ineffective for failing to investigate
and present certain mitigation evidence at Patrick’s penalty phase; and (5) that trial
counsel was ineffective in failing to investigate and present available mitigation
evidence; (6) section 922.105, Florida Statutes (2014), and Florida’s existing
procedure for lethal injection violate article II, section 3 and article I, sections 9
and 17 of the Florida Constitution and the Eighth Amendment of the United States
Constitution, both as applied and facially; and (7) trial counsel was ineffective for
failing to adequately question or challenge two jurors.
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counsel was ineffective for failing to adequately question or challenge two jurors
during voir dire. We find no reversible error in the postconviction court’s
procedural ruling that Patrick’s Hurst v. Florida claim was premature, as it was
presented to the postconviction court before this Court decided the retroactivity of
that decision and Hurst in Mosley v. State, 209 So. 3d 1248, 1276 (Fla. 2016).
However, as explained below, we grant Patrick a new penalty phase under Hurst v.
Florida and Hurst in accordance with his petition for writ of habeas corpus.
Because Patrick is entitled to a new penalty phase as argued in his petition for writ
of habeas corpus, the other penalty-phase claim raised before the postconviction
court is moot and need not be addressed. We address each of the remaining claims
in turn.
II. POSTCONVICTION APPEAL
Each of the non-Hurst claims at issue on appeal alleges ineffective
assistance of trial counsel. Some of these claims were denied after an evidentiary
hearing and some summarily. We review the summarily denied claims de novo,
accepting their allegations as true to the extent they are not conclusively refuted by
the record and reversing for an evidentiary hearing if they are facially sufficient to
show entitlement to relief and raise an issue of fact. Ault v. State, 213 So. 3d 670,
677-78 (Fla. 2017). As to the claims denied after an evidentiary hearing, we “defer
to the postconviction court’s factual findings as long as they are supported by
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competent, substantial evidence in the record” and review the postconviction
court’s legal conclusions de novo. Seibert v. State, 64 So. 3d 67, 78 (Fla. 2010).
Substantively, each ineffective assistance of counsel claim required Patrick
to show the following, in accordance with Strickland v. Washington, 466 U.S. 668
(1984):
First, 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.
Second, the clear, substantial deficiency shown must further be
demonstrated to have so affected the fairness and reliability of the
proceeding that confidence in the outcome is undermined.
Abdool v. State, 220 So. 3d 1106, 1111 (Fla. 2017) (quoting Bolin v. State, 41 So.
3d 151, 155 (Fla. 2010)). These two prongs of the ineffective assistance of counsel
test present mixed questions of law and fact, Sochor v. State, 883 So. 2d 766, 771
(Fla. 2004) (citing Strickland, 466 U.S. at 698)), but the ultimate conclusions on
both prongs are matters of law, Peterson v. State, 221 So. 3d 571, 584 (Fla. 2017)
(quoting Everett v. State, 54 So. 3d 464, 472 (Fla. 2010)).
A. Confession
Patrick argues that the postconviction court erred in denying the claim that
his attorneys were ineffective for failing to consult a psychopharmacologist or
addictionologist for the purpose of challenging the validity of his Miranda waiver
and the voluntariness of his confession that followed. The motion would have
been based on the premise that Patrick was experiencing cocaine withdrawal,
-8-
which combined with his preexisting conditions of depression and post-traumatic
stress disorder to render him unable to comprehend his rights sufficiently to waive
them or have the mental capacity to withstand police coercion and speak
voluntarily thereafter. Because counsel cannot be deficient for failing to file a
meritless motion, see Merck v. State, 124 So. 3d 785, 800 (Fla. 2013), we affirm
the postconviction court’s denial of this claim.
The confession at issue was given during a video-recorded custodial
interrogation after Patrick was read his Miranda rights, said he understood them,
agreed to waive them, and signed a waiver form. To establish that the proposed
motion would have been successful, Patrick presented the postconviction court
with the video of the interrogation and the testimony of Dr. William Morton, a
psychopharmacologist. After considering the video and Dr. Morton’s testimony,
the postconviction court made the following significant finding:
While, arguably, an expert could point out the subtleties that would
show withdrawal, that is exactly what they would have been in this
case. In other words, there was no glaring behavior that would have
led a reasonable judge or jury to believe that [Patrick] was under the
influence of any drugs or alcohol or manifesting any drug withdrawal
symptoms.
The court also stated that it noted no signs of impairment and that Patrick’s
answers to the detective’s questions were relevant and responsive. Patrick argues
that the lack of “glaring behavior” does not invalidate his claim but proves the
need for expert testimony. Consistent with this position, Dr. Morton testified that
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he was able to detect nuances that would not be observed by the average lay
person. Even so, the essential point of the postconviction court’s finding—that the
video belies Patrick’s claim, even after consideration of his expert’s testimony—
remains valid.
Indeed, while tired and distressed concerning his crimes, Patrick seemed
intelligent, reflective, and engaged during the interview, even drawing a map for
the interviewing officer to show where he left the victim’s keys, while providing
detailed instructions. Moreover, although Dr. Morton indicated that Patrick would
have been experiencing a significant level of physical and emotional discomfort
from drug withdrawal, he did not testify that Patrick was incapable of
understanding the Miranda rights and the consequences of waiving them, and he
found that Patrick’s withdrawal symptoms were only “mild to moderate.” Also,
although Dr. Morton opined that Patrick showed “confusion” and “some episodes
of slow thinking,” Patrick made direct comments during the interview indicating
that he understood the likely consequences of his statements. This evidence
supports the postconviction court’s findings and leads us to conclude that Patrick
gave his statements with “full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it,” such that his
Miranda waiver was valid. Ramirez v. State, 739 So. 2d 568, 575 (Fla. 1999)
(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). Accordingly, a motion to
- 10 -
suppress challenging the validity of Patrick’s Miranda waiver would have been
unsuccessful. Cf. Buzia v. State, 82 So. 3d 784, 793 (Fla. 2011); Orme v. State,
677 So. 2d 258, 262-63 (Fla. 1996).
Likewise, Patrick could not have succeeded on a motion to suppress his
confession due to his experience of withdrawal symptoms during the questioning
itself, as this component of the motion would have relied on his subjective mental
state, not any specific examples of external pressure from the police beyond the
inherent pressure of a custodial interrogation. See Colorado v. Connelly, 479 U.S.
157, 165 (1986) (“[W]hile mental condition is surely relevant to an individual’s
susceptibility to police coercion, mere examination of the confessant’s state of
mind can never conclude the due process inquiry.”); Thomas v. State, 456 So. 2d
454, 458 (Fla. 1984); see also Rigterink v. State, 193 So. 3d 846, 865 (Fla. 2016).
For these reasons, we affirm the postconviction court’s denial of this claim.
B. Shoeprint Evidence
Patrick also argues that the postconviction court erred in summarily denying
his claim that counsel was ineffective for failing to request a Frye hearing
concerning expert testimony that the boots found in his duffel bag matched bloody
shoeprints at the scene, or to challenge the credibility of that evidence. This claim
was based on articles indicating that the FBI has questioned the validity of
shoeprint identifications. At trial, Patrick’s counsel advised the court that he did
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not raise a Frye challenge to this evidence because, “candidly, there [was] so much
other evidence” and the defense was not contesting that Patrick was at the murder
scene. He also noted that he probably would not cross-examine the State’s expert
about the new studies because he did not find them “anywhere near important
enough.”
At the time of Patrick’s trial, “new or novel scientific evidence” was
admissible in Florida trials only when it passed the test set forth in Frye v. United
States, 293 F. 1013, 1014 (D.C. Cir. 1923).4 We have previously rejected a claim
that shoeprint evidence is “new or novel.” Ibar v. State, 938 So. 2d 451, 467-68
(Fla. 2006). Thus, the postconviction court properly ruled that if a Frye hearing
had been requested, it would have been denied.
Whether counsel was ineffective for failing to cross-examine the State’s
expert concerning the validity of shoeprint identification is a separate question.
This Court has explained that “strategic decisions do not constitute ineffective
assistance of counsel if alternative courses have been considered and rejected and
counsel’s decision was reasonable under the norms of professional conduct.”
Darling v. State, 966 So. 2d 366, 382 (Fla. 2007) (quoting Howell v. State, 877 So.
4. The Florida Legislature has since amended the Evidence Code to replace
the Frye test with the test of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993). We have declined to adopt that test to the extent it is procedural.
In re Amends to the Fla. Evid. Code, 210 So. 3d 1231, 1238-39 (Fla. 2017).
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2d 697, 703 (Fla. 2004)). A decision that lodging a particular challenge to the
validity of evidence would be a waste of resources in light of counsel’s knowledge
of corroborating facts can be a reasonable strategic decision. Id. Here, the record
establishes that counsel made a decision not to explore defects in shoeprint
identification in part because he had chosen as a matter of strategy, and
consistently with Patrick’s confession and other evidence, to admit Patrick’s
presence at the scene. Accordingly, the record establishes that counsel’s decision
was a reasonable strategic one and, therefore, not deficient. See id. Moreover,
given the concession both in defense argument and in Patrick’s confession that
Patrick was at the scene, there is no reasonable probability that a successful
challenge to the validity of shoeprint comparison as a field would have affected the
outcome of Patrick’s trial. In other words, our confidence in the outcome is not
undermined. Thus, we affirm the postconviction court’s denial of this claim.
C. Jurors
In the last of the appellate issues that we address, Patrick argues that the
postconviction court erred in summarily denying the claim that counsel was
ineffective for failing to challenge or adequately question two jurors concerning
alleged biases. We address this claim as to only one of the jurors, as the claim
concerning the other juror relates to the penalty phase, and we have determined
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that the penalty-phase claims are moot.5 In pertinent part, Patrick claims that his
trial counsel was ineffective for failing to challenge a juror who was biased against
him based on his drug use and participation in sexual acts with the male victim.
We affirm the denial of this claim except as it relates to statements this juror made
regarding the effect evidence of homosexuality would have on his deliberations.
For the reasons explained below, we reverse and remand for an evidentiary hearing
on that aspect of the claim.
A valid claim of ineffective assistance of counsel for failing to challenge a
juror must demonstrate that “one who was actually biased against the defendant sat
as a juror,” meaning that the juror had a “bias-in-fact that would prevent service as
an impartial juror.” Carratelli v. State, 961 So. 2d 312, 323-24 (Fla. 2007). The
evidence of the juror’s actual bias must amount to “something more than mere
doubt about that juror’s impartiality.” Mosley, 209 So. 3d at 1265. Otherwise, the
defendant cannot show prejudice. Carratelli, 961 So. 2d at 324. Our cases
5. Assuming arguendo that Patrick’s claim that he was denied a fair trial
because of the other juror’s views concerning the death penalty extends to how the
juror’s views would have affected his guilt-phase deliberations, we note that the
denial of the claim was proper. Patrick argues that this juror indicated a strong
predisposition for recommending the death penalty by declaring that he leaned
toward the death penalty at a level of “eight or nine” on a scale of one to ten.
However, this juror later said that he was “[r]ight in the middle” concerning the
death penalty, would “go by the law,” and would have to “hear everything.” His
comments do not show actual bias. Cf. Guardado v. State, 176 So. 3d 886, 899
(Fla. 2015).
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addressing such claims tend to focus on this prong of the Strickland test, as it is
necessary to establish that the juror was actually biased before proving that counsel
performed deficiently by failing to challenge that juror due to bias. See, e.g., Hall
v. State, 212 So. 3d 1001, 1016 (Fla. 2017); State v. Bright, 200 So. 3d 710, 742
(Fla. 2016). Accordingly, our analysis of this issue begins with the prejudice
prong.
The juror at issue said that he would give a witness’s testimony less weight
or credence if the witness was on drugs at the time that he observed the things
about which he testified. These comments do not show bias, but rather reflect the
reality of the effect that drug use can have on a person’s ability to see, understand,
and remember events. See Trease v. State, 768 So. 2d 1050, 1054 (Fla. 2000)
(quoting Edwards v. State, 548 So. 2d 656, 658 (Fla. 1989) (describing the
circumstances under which evidence of a witness’s drug use is relevant for
impeachment purposes)). Therefore, this aspect of the claim was properly denied.
In contrast, the juror showed actual bias stemming from Patrick’s sexual
activity. He said that he “would have a bias if [he] knew the perpetrator was
homosexual.” When asked if he would still hold the prosecutor to the proper
burden of proof, he answered, “Put it this way, if I felt the person was a
homosexual, I personally believe that person is morally depraved enough that he
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might lie, might steal, might kill.” The juror said “yes” when asked if this bias
might affect his deliberations.
The State contends that this juror’s bias was not against the defense, as there
was no evidence that Patrick was homosexual, and instead suggested more bias
against the victim. However, the evidence and arguments at trial indicated that,
while Patrick denied being homosexual, he willingly participated in sexual and
intimate acts with the male victim before the encounter in question and that he had
engaged in similar activity in the past with other men.6 Applying this evidence to
the juror’s voir dire answers establishes that, by the juror’s own acknowledgement
on the record, he was predisposed to believe that Patrick is morally depraved
enough to have committed the charged offenses. Although Patrick does not
identify as homosexual and indicated in his confession that his sexual activity with
men was for material support rather than personal fulfillment, these points do not
eliminate the bias that this juror said he would feel based on the evidence that trial
counsel and the trial court knew the jury would hear during trial. Also, the fact
that the juror’s bias would have extended to the victim does not refute the bias he
acknowledged or render him impartial.
6. Patrick’s counsel was aware that this evidence would be presented at
trial, as it was part of his confession, and Patrick’s counsel acknowledged at a
sidebar before the voir dire questioning at issue that there would be evidence of
“[h]omosexual acts.”
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Because the juror’s voir dire answers concerning homosexuality meet the
Carratelli test for prejudice, the validity of the summary denial of this claim
depends on the performance prong. Failure to raise a meritorious issue is not
deficient performance when it results from the exercise of professional judgment
after considering alternative courses. Occhicone v. State, 768 So. 2d 1037, 1048
(Fla. 2000). As the State argues, the record in this case suggests possible strategic
grounds, relating to both phases of the trial, for not striking this juror. We need not
detail these grounds but note that when applying Strickland, “[g]enerally, an
evidentiary hearing is required to conclude that action or inaction was a strategic
decision.” Pineda v. State, 805 So. 2d 116, 117 (Fla. 4th DCA 2002). On this
record, we can neither ignore the possibility that counsel’s failure to challenge this
juror was strategic nor conclude that it was. Therefore, we reverse the
postconviction court’s denial of this claim and remand for an evidentiary hearing.
III. PETITION FOR WRIT OF HABEAS CORPUS
While Patrick’s postconviction motion was pending before the circuit court,
the United States Supreme Court issued its decision in Hurst v. Florida, in which it
held that Florida’s former capital sentencing scheme violated the Sixth
Amendment because it “required the judge to hold a separate hearing and
determine whether sufficient aggravating circumstances existed to justify imposing
the death penalty” even though “[t]he Sixth Amendment requires a jury, not a
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judge, to find each fact necessary to impose a sentence of death.” Hurst v. Florida,
136 S. Ct. at 619. On remand from this decision, we reached the following
holding:
[B]efore the trial judge may consider imposing a sentence of death,
the jury in a capital case must unanimously and expressly find all the
aggravating factors that were proven beyond a reasonable doubt,
unanimously find that the aggravating factors are sufficient to impose
death, unanimously find that the aggravating factors outweigh the
mitigating circumstances, and unanimously recommend a sentence of
death.
Hurst, 202 So. 3d at 57.
We have held that Hurst applies retroactively to “defendants whose
sentences became final after the United States Supreme Court issued its opinion in
Ring[ v. Arizona, 536 U.S. 584 (2002)].” Mosley, 209 So. 3d at 1276. Because
Patrick’s death sentence became final in 2013, Hurst applies retroactively to him.
See id. And because the jury recommended the death penalty by a vote of seven to
five, Patrick’s death sentence violates Hurst. See Kopsho v. State, 209 So. 3d 568,
570 (Fla. 2017).
Accordingly, we must consider whether the error is harmless beyond a
reasonable doubt:
The harmless error test, as set forth in Chapman[v. California, 386
U.S. 18 (1967),] and progeny, places the burden on the state, as the
beneficiary of the error, to prove beyond a reasonable doubt that the
error complained of did not contribute to the verdict or, alternatively
stated, that there is no reasonable possibility that the error contributed
to the conviction.
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Hurst, 202 So. 3d at 68 (quoting State v. DiGuilio, 491 So. 2d 1129, 1138 (Fla.
1986)). While at least three of the aggravators in this case are such that no
reasonable juror would have failed to find their existence,7 based on the jury’s
seven-to-five recommendation for a sentence of death, we cannot determine that
the jury unanimously found that the aggravating factors were sufficient to impose a
sentence of death. Nor can we “determine that the jury unanimously found that the
aggravators outweighed the mitigation.” Kopsho, 209 So. 3d at 570. “We can
only determine that the jury did not unanimously recommend a sentence of death.”
Id. Therefore, because we cannot say that there is no reasonable possibility that
the error contributed to the sentence, the Hurst error in Patrick’s sentencing was
not harmless beyond a reasonable doubt. Cf. id.
Accordingly, the petition for writ of habeas corpus is hereby granted. We
vacate the death sentence and remand to the circuit court for a new penalty phase.
See Hurst, 202 So. 3d at 69.
IV. CONCLUSION
For the foregoing reasons, we affirm the denial of postconviction relief
except as to the ineffective assistance of counsel claim concerning juror bias on the
7. Specifically, no reasonable juror would have failed to find that Patrick
was under a sentence of imprisonment, that he had a prior violent felony, or, in
light of the guilt-phase verdict, that the murder occurred in the course of a felony.
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basis of homosexuality, and we grant Patrick’s petition for writ of habeas corpus.
Accordingly, we reverse the denial of the postconviction claim concerning juror
bias and remand for an evidentiary hearing. We also vacate Patrick’s death
sentence and instruct the circuit court to hold a new penalty phase in the event that
Patrick’s conviction for first-degree murder is confirmed after the rule 3.851
motion at issue in this appeal is finally resolved at both the circuit court level and
this level.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and LAWSON, JJ., concur.
POLSTON, J., concurs in part and dissents in part with an opinion, in which
CANADY, J., concurs.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
POLSTON, J., concurring in part and dissenting in part.
I concur with the majority’s decision to affirm in part and reverse in part the
postconviction court’s denial of Patrick’s postconviction motion and to remand for
an evidentiary hearing on one claim. I dissent as to its grant of Patrick’s petition
for writ of habeas corpus and vacating of the death sentence pursuant to Hurst. See
Mosley v. State, 209 So. 3d 1248, 1285 (Fla. 2016) (Canady, J., dissenting on
retroactivity of Hurst). I would also affirm the denial of Patrick’s other penalty
phase claims.
CANADY, J., concurs.
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An Appeal from the Circuit Court in and for Broward County,
Ilona M. Holmes, Judge - Case No. 062005CF016477A88810
And An Original Proceeding – Habeas Corpus
Neal A. Dupree, Capital Collateral Regional Counsel, and Suzanne Myers Keffer,
Chief Assistant Capital Collateral Regional Counsel, Southern Region, Fort
Lauderdale, Florida,
for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Lisa-Marie Lerner and
Ilana Mitzner, Assistant Attorneys General, West Palm Beach, Florida,
for Appellee/Respondent
Billy H. Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender,
Tallahassee, Florida,
Amicus Curiae The Capital Habeas Unit of the Office of the Federal Public
Defender for the Northern District of Florida
- 21 -