James Daniel Turner v. State of Florida

Supreme Court of Florida
____________
No. SC12-2271
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JAMES DANIEL TURNER,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[May 15, 2014]
PER CURIAM.
James Daniel Turner appeals an order of the circuit court that denied his
motion to vacate a conviction of first-degree murder and sentence of death filed
pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. Art.
V, § 3(b)(1), Fla. Const.
FACTS AND BACKGROUND
On November 29, 2007, a jury convicted James Daniel Turner of the first-
degree murder of Renee Howard, the attempted first-degree murder of Stacia
Raybon, grand theft of a motor vehicle, home invasion robbery, and aggravated
assault on a police officer. Turner v. State, 37 So. 3d 212, 217, 219 (Fla. 2010).
The jury recommended the death penalty by a vote of ten to two for the murder of
Howard, and the trial court imposed a sentence of death. Id. at 219-20. In the
opinion affirming the convictions and sentences, this Court detailed the facts of the
murder:
. . . Turner had been sentenced to jail in Newberry County,
South Carolina, for a violation of probation stemming from a felony
battery charge. While incarcerated at that location he was primarily
assigned to perform various duties at the local sheriff’s office and was
given special privileges because he was considered trustworthy. . . .
Despite being scheduled to be released from the facility at the end of
2005, on September 28, 2005, Turner escaped from the Newberry
County Jail in a stolen Newberry County Office Sports Utility Vehicle
(SUV). The SUV was discovered by local employees in the parking
lot of a business located in St. Johns County, Florida the next day.
Local law enforcement officials found Turner’s identification card and
multiple rocks of crack cocaine in the stolen vehicle.
On September 30, 2005, two hotel guests saw Turner lurking
around the Comfort Inn located in St. Augustine. . . .
That morning, Renee Howard, her four children ages eighteen,
fourteen, two, and ten months, Howard’s eight-month-old
granddaughter, and Stacia Raybon occupied room 210 of the motel . .
. . Raybon testified that early that morning . . . the defendant passed
them, “almost pushing [them] off the sidewalk.” Shortly thereafter,
Howard drove her son to work and daughter to school, taking two of
the other three children with her . . . . Howard returned to the motel
and Raybon was on the way downstairs to assist Howard in gathering
the children when she noticed Turner outside room 210. Howard,
Raybon, and the three remaining children returned to the room to
prepare to check out of the motel.
The record reflects that while preparing bottles at the rear of the
room for the children, Raybon saw a flash of light hit the mirror as the
door of the room suddenly opened. She then saw Turner go toward
Howard. Turner appeared to strike Howard in the midsection and
then turned and proceeded to attack Raybon. Raybon crouched on the
floor in the rear of the room and buried her face in her hands. Turner
pulled Raybon up by the arm and stabbed her in the elbow.
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Immediately after stabbing Raybon, Turner noticed Howard move
back toward the entry door of the room and Turner turned and
directed his attention to her for the second time. Turner’s movement
afforded Raybon time to grab her purse, rush into the bathroom, and
lock herself inside.
While in the bathroom, Raybon heard “loud hitting noises” in
the room and the children screaming. Raybon then heard water
running in the sink, which was located immediately outside the
bathroom door. Turner attempted to force his way into the bathroom,
and after he failed multiple times, Raybon asked Turner to release one
of the children to her. Turner demanded money, and, after searching
her purse, Raybon slid $5 and several credit cards under the bathroom
door. Turner slid the $5 back under the door to her and told Raybon
to keep it. Turner then brought one of the children to the bathroom
door and allowed the child to enter . . . . After Raybon pleaded for
Turner to leave her and the children alone, Turner ordered Raybon to
wait ten minutes before exiting the room . . . . When Raybon finally
exited the bathroom, she discovered Howard’s motionless body on the
floor.
Id. at 215-17.
In sentencing Turner to death, the trial court determined that the State had
proven beyond a reasonable doubt the existence of five statutory aggravating
circumstances: (1) Turner previously had been convicted of a felony and was under
a sentence of imprisonment (moderate weight); (2) Turner was contemporaneously
convicted of a felony involving the use or threat of violence (the attempted murder
of Stacia Raybon and the aggravated assault on a police officer) (great weight); (3)
the murder was committed while Turner was engaged in the commission of, or an
attempt to commit, the crime of burglary or robbery, or both (great weight) (this
factor was merged with another aggravating factor—that the murder was
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committed for pecuniary gain); (4) the murder was especially heinous, atrocious, or
cruel (great weight); and (5) the murder was committed in a cold, calculated, and
premeditated manner without any pretense of moral or legal justification (CCP)
(significant weight). Id. at 220.
The court found the existence of two statutory mitigating circumstances: (1)
the murder was committed while Turner was under the influence of an extreme
mental or emotional disturbance (moderate weight); and (2) the capacity of Turner
to appreciate the criminality of his conduct or to conform his conduct to the
requirements of the law was substantially impaired (moderate weight). Id. The
trial court also found that the following nonstatutory mitigating circumstances had
been established:
(1) Turner’s ability to form loving relationships (some weight); (2)
Turner’s family problems and mental suffering (little weight); (3)
Turner’s uncles gave him drugs when he was young (some weight);
(4) Turner’s cognitive development was impaired due to substance
abuse (some weight); (5) Turner’s chronic alcohol and drug problem
(moderate weight); (6) at the time of the murder, Turner was under the
influence of crack cocaine (some weight); (7) Turner was a hard
worker and skilled carpenter (little weight); (8) prior to escaping,
Turner was a good worker in South Carolina (slight weight); and (9)
Turner’s appropriate courtroom behavior (some weight).
Id.On direct appeal, Turner presented the following issues: (1) Turner’s retrial
violated the double jeopardy clauses of the United States and Florida
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Constitutions;1 (2) the trial court erroneously found the existence of the CCP
aggravating circumstance; (3) the death sentence is not proportionate; and (4)
Florida’s death penalty statute violates Ring v. Arizona, 536 U.S. 584 (2002). Id.
at 220-29. This Court denied relief on all claims and affirmed the convictions and
sentences. Id. at 229. The United States Supreme Court denied certiorari review
on October 18, 2010. Turner v. Florida, 131 S. Ct. 426 (2010).
Postconviction Motion
On October 12, 2011, Turner filed a motion to vacate his conviction and
sentence of death pursuant to Florida Rule of Criminal Procedure 3.851. The
motion presented ten claims: (1) trial counsel were ineffective during voir dire for
failing to ask questions that would reveal jurors who could not give meaningful
consideration to mitigating evidence; (2) trial counsel were ineffective for failing
to object to improper comments by the prosecution; (3) trial counsel were
ineffective for failing to (a) present nonstatutory mitigation in the form of Turner’s
probable future good conduct in prison, and (b) ensure that a reasonably competent
mental health evaluation was conducted; (4) the Rule Regulating the Florida Bar
that prohibits interviews of jurors is unconstitutional and denied Turner the
adequate assistance of counsel in pursuing postconviction relief; (5) the instruction
1. Turner’s first trial ended in a mistrial when a juror suffered a seizure
during guilt phase deliberations. Turner, 37 So. 3d at 217-18.
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to the jury that its role was merely advisory is unconstitutional pursuant to
Caldwell v. Mississippi, 472 U.S. 320 (1985); further, to the extent trial counsel
failed to present this challenge, they were ineffective; (6) Florida’s death penalty
statute is unconstitutional because it fails to prevent the arbitrary imposition of the
death penalty and it violates the prohibition against cruel and unusual punishment;
further, to the extent trial counsel failed to present this challenge, they were
ineffective; (7) Florida’s death penalty statute is unconstitutional as applied
pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring; (8)
cumulative error; (9) section 945.10, Florida Statutes (2005), is unconstitutional
because it precludes Turner from knowing the identity of his execution team
members; and (10) Turner may be incompetent at the time of execution.
The postconviction court held a Huff 2 hearing, during which counsel for
Turner advised that an evidentiary hearing was sought only on Claim 3. On March
23, 2012, the postconviction court issued an order that granted an evidentiary
hearing on Claim 3, deferred ruling on the cumulative error claim, and summarily
denied the remaining claims.
Evidentiary Hearing
During the evidentiary hearing, Turner presented the testimony of trial
counsel James Valerino and Valli Sottile, Jeffrey Turner (Turner’s younger
2. Huff v. State, 622 So. 2d 982 (Fla. 1993).
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brother), Betty McAlister (Turner’s aunt), and Dr. Hyman Eisenstein. The State
presented the testimony of Dr. Jeffrey Danziger and Dr. Kimberly Brown. 3
Valerino and Sottile testified that they prepared and presented the guilt and
penalty phases together, with Valerino serving as lead counsel. The attorneys
testified that in addition to Drs. Drew Edwards and Stephen Bloomfield, who
testified during the penalty phase, and Dr. Harry Krop, who testified during the
Spencer4 hearing, they obtained reports of evaluations of Turner by licensed
psychologist and clinical neuropsychologist Dr. Susan Young and psychiatrist Dr.
Miguel Mandoki. Valerino testified that he and Sottile made a strategic decision
not to present Drs. Young and Mandoki as witnesses because the lawyers
concluded the testimony of these doctors would have been detrimental to Turner
during the penalty phase. Additionally, because of Turner’s exposure to drugs and
alcohol at a young age, Sottile approached a psychologist who was experienced in
the field of adolescent development and asked if he could assist in Turner’s
defense. Sottile testified that when the psychologist advised that he could not
assist, she and Valerino continued to seek experts or “anybody else who might be
able to provide helpful information.” Finally, an MRI test was performed on
3. Dr. Brown testified with regard to an issue that is not challenged on
appeal. Therefore, her testimony is not included in our analysis.
4. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
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Turner; however, because the results were normal, Valerino and Sottile decided not
to introduce the MRI results during the penalty phase.
Sottile testified that in preparation for the penalty phase, she spoke with
many of the witnesses on the telephone and she spoke with others in person.
However, she did not travel to South Carolina to meet with members of Turner’s
family in person. Instead, mitigation specialist Dr. William Scott and an
investigator were assigned by the lawyers to travel to and conduct an investigation
in person in South Carolina. Both Valerino and Sottile testified that many of the
family members either were not cooperative, or became uncooperative. Valerino
testified that Dr. Scott spoke with Turner’s aunt, Betty McAlister, “on a couple of
occasions until it reached a point where, according to Mr. Scott, she would not
answer any of his telephone calls.” Valerino testified that he and Sottile were
unable to determine why there was a lack of cooperation on behalf of many family
members, and Turner’s mother in particular. Sottile explained that they did not
present McAlister as a penalty phase witness because she did not want to testify.
Further, with regard to Turner’s brother, Jeffrey, Sottile explained that he “was
helpful in the sense of trying to give us family names and where they lived.
Outside of that, he really did not want to be involved in this case.” Valerino
corroborated Sottile’s testimony, stating that while Jeffrey was willing to help
bring family members to Florida for the penalty phase, he did not want to be a
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witness for Turner. The attorneys testified that although Jeffrey attended part of
the trial, at one point he left the courtroom and was not seen again. Valerino
explained that he presented Dr. Scott during the Spencer hearing in an effort to
offer the trial court mitigation “as to the dysfunctional nature of Mr. Turner’s
family, the complete lack of cooperation or the limited cooperation we were
getting from his family.”
Jeffrey Turner and Betty McAlister testified that when James Turner was
growing up, he was impulsive and spent money recklessly as soon as it was
received. They also described three separate incidents in which Turner cut his
wrists. Jeffrey testified that Turner displayed inappropriate anger during divorces
and relationship breakups. Turner also argued with their parents, punched walls
and other objects, and engaged in reckless driving; however, Jeffrey testified that
this behavior occurred only while Turner was drinking. Jeffrey testified that
Turner could not maintain regular employment. He also stated that their mother
would beat Turner and another brother with any object that was available, and the
beatings would leave welts on his brothers’ bodies.
McAlister testified that Turner did poorly in school, but not because he did
not try. Rather, he had a short attention span and appeared to have difficulty
concentrating and sitting still. McAlister testified that Turner’s grandmother
suffered from mental illness serious enough to require institutionalization on more
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than one occasion. McAlister also stated that she suffers from bipolar disorder, as
do her son and her oldest daughter. McAlister described Turner’s behavior as
“sometimes up, sometimes down.” Both McAlister and Jeffrey testified that they
were available and willing to testify during Turner’s penalty phase, but no one
contacted them to do so.
Clinical psychologist Hyman Eisenstein was retained to evaluate Turner for
possible mitigation. Dr. Eisenstein conducted multiple tests on Turner and
reviewed Turner’s school records as well as other background material, including
the findings of other experts who had previously evaluated Turner. Additionally,
Dr. Eisenstein spoke with Dr. Krop, who testified during the Spencer hearing, and
conducted interviews with family members—specifically, Jeffrey Turner, Betty
McAlister, brother Michael Turner, mother Ruby Turner, sister Hope Turner, and
the daughter of Betty McAlister.
According to Dr. Eisenstein, the testing results were indicative of cognitive
brain damage and deficits in the left brain hemisphere because Turner’s verbal
memory was significantly lower than his visual memory, and his verbal
comprehension score was significantly lower than any other score he received on
the Wechsler Adult Intelligence Scale. Dr. Eisenstein agreed with the conclusions
of penalty phase expert Dr. Bloomfield that Turner suffers from frontal lobe
damage, which can affect judgment. According to Dr. Eisenstein, this damage
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manifested in Turner’s inability to concentrate during school and his academic
failure, and it predisposed Turner to use alcohol and drugs. Dr. Eisenstein also
concluded that Turner suffers from alcohol and substance dependence, but noted
that Turner’s dependence is in remission due to his incarceration.
In addition to dependency, Dr. Eisenstein concluded that Turner suffers from
Attention Deficit Hyperactivity Disorder (ADHD), which was evidenced by
Turner’s difficulties in school, his high energy level, and his impulsive behavior.
He further concluded that Turner suffers from Bipolar Disorder, relying upon
Turner’s family history of the disorder, his depression, and his manic-like
symptoms. Dr. Eisenstein also explained that many of the symptoms of Borderline
Personality Disorder—impulsivity, reckless spending of money, volatile mood
swings, self-mutilation, suicidal behavior, and stress-related paranoia—are also
exhibited by individuals who suffer from Bipolar Disorder, and that Turner’s
behavior supports both of these diagnoses. Finally, Dr. Eisenstein stated that while
Turner is not delusional or hallucinating, at times he suffers from an “episodic,
psychotic disorder” which can emerge when there is a “confluence” of the
circumstances previously discussed.
The expert for the State, psychiatrist Jeffrey Danziger, testified that he
interviewed Turner and reviewed documents from the trial and postconviction
proceedings, including the testimony of Drs. Edwards, Bloomfield, and Krop, and
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the report and data of Dr. Eisenstein. He did not speak with any family members,
did not review Turner’s school records, and did not conduct any tests. Dr.
Danziger reached a diagnosis of Polysubstance Dependence—which included
Turner’s use of alcohol, powder cocaine, methamphetamine, and prescription
opiates—that is currently in remission due to Turner’s incarceration. Dr. Danziger
concluded that Turner suffers from an Adjustment Disorder with Depressed Mood,
a diagnosis that does not rise to the level of a major depressive disorder. Dr.
Danziger opined that this diagnosis is not surprising because Turner is on death
row and concluded that Turner’s mood constitutes a “situational unhappiness due
to his current predicament.”
He disagreed with Dr. Eisenstein’s conclusion that Turner suffers from
Bipolar Disorder. According to Dr. Danziger, the manic episodes that are a
symptom of Bipolar Disorder must be spontaneous, and cannot be due to a medical
condition or substances. He concluded that because he was not aware of Turner
exhibiting any manic symptoms during his seven years of incarceration and forced
sobriety, Turner’s mania was the result of intoxication and dependence on
stimulants. He also disagreed with Dr. Eisenstein’s conclusion that Turner has
mental-illness based psychotic features because “[i]t is well-known that if you’re
on a binge of methamphetamine or a binge of cocaine, you can develop transient
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psychotic symptoms.” Where symptoms are substance induced, Dr. Danziger
concluded that they are not evidence of a primary mental illness.
Similarly, Dr. Danziger disagreed with Dr. Eisenstein’s diagnosis of
Borderline Personality Disorder. Dr. Danziger noted that Turner had been abusing
substances from the ages of thirteen to thirty-three. 5 According to Dr. Danziger,
all of Turner’s symptoms that support this disorder—suicide attempts, relationship
problems, risk-taking, and paranoia—were likely due to the use of substances and,
therefore, did not support the diagnosis. As with the Bipolar Disorder diagnosis,
Dr. Danziger noted that since Turner has been incarcerated, there have been no
suicide attempts, transient paranoid ideas, or admissions to a psychiatric unit. Dr.
Danziger did not disagree with the findings of prior experts that Turner has frontal
lobe deficits that create issues with regard to emotional control, planning,
judgment, and reasoning. Further, Dr. Danziger could not rule out a diagnosis of
ADHD, but said that he did not possess data to indicate that the symptoms of poor
concentration and impulsivity were present before the age of seven, which is
required for such a diagnosis. However, even if Turner suffers from ADHD, Dr.
Danziger concluded that it had “very little to do with what took place September
30th, 2005.”
5. Turner was thirty-three years old when he murdered Renee Howard.
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On October 4, 2012, the postconviction court issued an order that denied
Claim 3 of Turner’s motion. This appeal follows.
ANALYSIS
Ineffective Assistance of Counsel
This Court has described the standard of review for claims of ineffective
assistance of counsel during penalty phase proceedings as follows:
Following the United States Supreme Court’s decision in
Strickland v. Washington, [466 U.S. 668] (1984), this Court has held
that for ineffective assistance of counsel claims to be successful, two
requirements must be satisfied:
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. A court considering a claim of
ineffectiveness of counsel need not make a specific
ruling on the performance component of the test when it
is clear that the prejudice component is not satisfied.
Schoenwetter v. State, 46 So. 3d 535, 546 (Fla. 2010) (quoting
Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986)).
To establish the deficiency prong under Strickland, the
defendant must prove that counsel’s performance was unreasonable
under “prevailing professional norms.” Morris v. State, 931 So. 2d
821, 828 (Fla. 2006) (quoting Strickland, 466 U.S. at 688). “A fair
assessment of attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689. The defendant carries the burden to “overcome the
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presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’ ” Id. (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). “Judicial scrutiny of counsel’s
performance must be highly deferential.” Id. In Occhicone v. State,
768 So. 2d 1037, 1048 (Fla. 2000), this Court held 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.”
“Penalty phase prejudice under the Strickland standard is
measured by whether the error of trial counsel undermines this
Court’s confidence in the sentence of death when viewed in the
context of the penalty phase evidence and the mitigators and
aggravators found by the trial court.” Stewart v. State, 37 So. 3d 243,
253 (Fla. 2010) (quoting Hurst v. State, 18 So. 3d 975, 1013 (Fla.
2009)).
Hildwin v. State, 84 So. 3d 180, 186-87 (Fla. 2011).
Both prongs of the Strickland test present mixed questions of law and fact.
Derrick v. State, 983 So. 2d 443, 456 (Fla. 2008). Accordingly, this Court employs
a mixed standard of review: It defers to a postconviction court’s factual findings,
provided they are supported by competent, substantial evidence, but reviews the
legal conclusions of the postconviction court de novo. Id. Finally, this Court has
noted:
The deference that appellate courts afford findings of fact based on
competent, substantial evidence is an important principle of appellate
review. In many instances, the trial court is in a superior position “to
evaluate and weigh the testimony and evidence based upon its
observation of the bearing, demeanor, and credibility of the
witnesses.”
Cox v. State, 966 So. 2d 337, 357-58 (Fla. 2007) (quoting Stephens v. State, 748
So. 2d 1028, 1034 (Fla. 1999)).
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In this case, the Court on direct appeal detailed the penalty phase mitigation
offered by trial counsel as follows:
Two of Turner’s stepdaughters testified that he was a good stepfather.
The grandmother of his stepchildren corroborated that he was a good
stepfather. Turner’s brother testified that the defendant began
drinking with his uncles at a very young age and also helped them
deal drugs.
The defense presented expert testimony with regard to the
effect of crack cocaine use on the brain. An expert testified that
Turner entered a drug rehabilitation facility in 1994 and, while
undergoing treatment, attempted to commit suicide. During cross-
examination, the expert admitted that Turner’s cocaine use influenced
his actions on the day of the murder, but did not necessarily cause
those actions. He further was of the view that at the time of the
murder, assuming Turner had gone at least twelve hours without crack
cocaine, he would have been either depressed and subdued or anxious
and hypervigilant.
Finally, a psychologist testified that although he did not find
that Turner suffered from significant brain damage, he found many
cognitive defects. He testified that Turner’s biggest deficits involved
decision making, judgment, planning, and impulse control. On cross-
examination, the psychologist conceded that Turner clearly
understood that the killing of Renee Howard was wrong.
. . . . At the Spencer hearing, Turner presented two witnesses.
A mitigation specialist and a psychotherapist testified that Turner had
a history of abandonment by his mother, became substance dependent
at a very young age and therefore never had proper cognitive
development, and had a low intelligence level. A psychologist
expressed the opinion that Turner had frontal lobe impairment,
experienced difficulty with performance tests used to measure
executive functions, and had an IQ of around 79.
Turner, 37 So. 3d at 219 (footnote omitted).
The postconviction court held that trial counsel were not deficient during the
penalty phase and further concluded that they acted reasonably and in accordance
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with prevailing professional standards. We agree. The postconviction record
reflects that in addition to presenting the testimony of three doctors and one
mitigation expert, trial counsel obtained evaluations from two additional doctors
and submitted Turner for an MRI. Counsel made a strategic decision not to present
this information during the penalty phase or the Spencer hearing because the MRI
did not reflect any abnormalities, and they believed the testimony of Drs. Young
and Mandoki would hurt Turner’s defense rather than help him. Thus, trial counsel
obtained input from no fewer than five addiction, mental health, and medical
professionals (Drs. Bloomfield, Edwards, Krop, Mandoki, and Young) and one
mitigation specialist, Dr. Scott, who travelled to South Carolina to meet with
Turner’s family, in formulating Turner’s mitigation presentation.
In light of the extensive preparation and investigation performed by trial
counsel, we hold that their performance during the penalty phase was in no way
deficient, but rather was extensive and thorough. While it can be argued that Dr.
Eisenstein’s report is more favorable to Turner than the testimony that was
presented during the penalty phase and Spencer hearing, this Court has repeatedly
held that a completely reasonable investigation into mental health mitigation is not
rendered unreasonable simply because the defendant has now obtained the
testimony of a more favorable mental health expert. See Cox, 966 So. 2d at 362.
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Further, with regard to the alleged failure of trial counsel to provide experts
with background information from family members to assist in evaluations of
Turner, the postconviction court reviewed the conflicting testimony of trial counsel
that the family was uncooperative during the penalty phase, and that of Jeffrey
Turner and Betty McAlister, who stated that they were available and willing to
testify, and credited that of trial counsel, noting “Ms. Sottile and Mr. Valerino
never determined why Defendant’s family members were unwilling to cooperate,
but their unwillingness to cooperate was evident through their actions, or lack
thereof, toward counsel and Defendant.” (emphasis supplied). This finding of
witness credibility is entitled to deference by the Court. Id. at 357-58. Moreover,
the record clearly reflects that biological family members were contacted by the
defense but, other than the members who testified during the penalty phase, 6 trial
counsel were stonewalled in their attempts to obtain mitigation evidence. We
conclude that counsels’ performance was not deficient because they affirmatively
sought these witnesses—to the point that Betty McAlister refused to accept phone
calls from the mitigation specialist—but the family was not cooperative.7
6. The record on direct appeal reflects that, in addition to Turner’s brother
Michael, Turner’s sister and cousin also testified during the penalty phase.
7. In fact, Valerino testified that when the mitigation specialist attempted to
speak with Turner’s mother, “she basically answered the door, wouldn’t speak to
him, closed the door, and that was it, no cooperation.” During the Spencer hearing,
the specialist described the encounter as follows:
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With regard to the prejudice prong of Strickland, the postconviction court
concluded that the testimony of Dr. Danziger was clearer and more concise than
that of Dr. Eisenstein, and Dr. Eisenstein’s diagnoses were undermined by Dr.
Danziger’s testimony. The postconviction court found that the available
information did not warrant the diagnoses of ADHD, Bipolar Disorder, or
Borderline Personality Disorder. We conclude that these findings are supported by
competent, substantial evidence. Dr. Danziger presented clear, logical testimony
that Turner’s Bipolar- and Borderline Personality-like symptoms were more likely
due to Turner’s extensive stimulant abuse than mental illness, and this opinion was
supported by the absence of such symptoms during the time that Turner has been
incarcerated and in an environment of forced sobriety. Moreover, although Dr.
Eisenstein testified that he reviewed Turner’s school records, his report contained
no indication that Turner exhibited symptoms of ADHD prior to the age of seven, a
requirement for diagnosis of this condition, and none of the data reviewed by Dr.
Danziger suggested an onset prior to age seven either.
Had trial counsel presented Dr. Eisenstein as an expert during the penalty
phase, the State would have undermined his opinions in the same manner as
occurred during the evidentiary hearing. Accordingly, there is no reasonable
[T]he mother refused to see me, but I went to the house where she was staying
anyway. She appeared out of the kitchen, but quickly went in a back bedroom and
shut the door and sent a message that she just didn’t want to talk to me, that she
was too nervous to be able to do that.
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probability that, had Dr. Eisenstein testified during the penalty phase or the
Spencer hearing, the jury would have recommended or the trial court would have
imposed a life sentence, and our confidence in the outcome of the penalty phase
has not been undermined. Therefore, Turner has not satisfied the second prong of
Strickland.
In light of the foregoing, we hold that Turner’s trial counsel were not
ineffective and affirm the postconviction court’s denial of relief on this claim.
Death Penalty Challenges
The remaining claims presented by Turner involve challenges to the death
penalty in Florida. Each of these challenges is either waived,8 procedurally barred,
meritless, or premature. See, e.g., Jones v. State, 928 So. 2d 1178, 1182 n.5 (Fla.
2006) (holding that a Caldwell claim is procedurally barred if it is not raised on
direct appeal); Rigterink v. State, 66 So. 3d 866, 897 (Fla. 2011) (rejecting
Caldwell challenge to the standard jury instructions on the merits); Miller v. State,
926 So. 2d 1243, 1259-60 (Fla. 2006) (rejecting as both procedurally barred and
8. With regard to one claim, Turner merely alleges that “Florida’s death
penalty sentencing scheme is unconstitutional as applied in violation of the Fifth,
Sixth, Eighth and Fourteenth Amendments of the United States Constitution and
corresponding Florida law.” We have previously explained that on appeal,
conclusory allegations are insufficient to warrant relief. Heath v. State, 3 So. 3d
1017, 1029 n.8 (Fla. 2009) (“Heath has waived his cumulative-error claim because
his brief includes no argument whatsoever and instead consists of a one-sentence
heading in his brief.”). Based upon our precedent, this completely conclusory
claim is waived.
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without merit claims that (1) Florida’s capital statute fails to provide a standard for
determining that aggravating circumstances “outweigh” mitigating circumstances,
fails to define “sufficient aggravating circumstances,” and fails to adequately
define the aggravating circumstances; (2) Florida’s capital sentencing procedure
lacks the independent reweighing of aggravating and mitigating circumstances
required by Proffitt v. Florida, 428 U.S. 242 (1976); and (3) the aggravating
circumstances have been applied in a vague and inconsistent manner, and juries
have received unconstitutionally vague instructions); Kilgore v. State, 55 So. 3d
487, 511-12 (Fla. 2010) (holding that a challenge to the constitutionality of
execution methods is procedurally barred if it is not raised on direct appeal); Wyatt
v. State, 71 So. 3d 86, 112 (Fla. 2011) (rejecting challenge to constitutionality of
execution methods as meritless); Darling v. State, 45 So. 3d 444, 447-48 (Fla.
2010) (rejecting challenge to constitutionality of section 945.10, Florida Statutes
(2007), which exempts from public records the identity of an executioner); Israel v.
State, 985 So. 2d 510, 521 (Fla. 2008) (holding that a claim that the defendant may
be insane at the time of execution is premature where no death warrant has been
signed and the defendant has not been found to be incompetent).
Cumulative Error
Finally, where the individual claims presented by a defendant are held to be
procedurally barred or without merit, a claim of cumulative error will fail.
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Lukehart v. State, 70 So. 3d 503, 524 (Fla. 2011); see also Israel, 985 So. 2d at
520. Because we have rejected each of Turner’s challenges on appeal, he is not
entitled to relief based upon a claim of cumulative error.
CONCLUSION
In light of the foregoing, we affirm the order of the trial court denying
postconviction relief.
It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA,
and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for St. Johns County,
Wendy Williams Berger, Judge - Case No. 2005-01954-CF
Raheela Ahmed and Maria Christine Perinetti, Assistant Capitol Collateral
Regional Counsel – Middle Region, Tampa,
for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Mitchell David
Bishop, Assistant Attorney General, Daytona Beach, Florida,
for Appellee
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