Richard England v. State of Florida and SC13-705 Richard England v. Michael D. Crews, etc.

Supreme Court of Florida
____________
No. SC11-2038
____________
RICHARD ENGLAND,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC13-705
____________
RICHARD ENGLAND,
Petitioner,
vs.
MICHAEL D. CREWS, etc.,
Respondent.
[July 3, 2014]
PER CURIAM.
Richard England appeals the denial of his motion to vacate his conviction of
first-degree murder and sentence of death filed under Florida Rule of Criminal
Procedure 3.851 and petitions this Court for a writ of habeas corpus.1 For the
reasons that follow, we affirm the denial of his postconviction motion and deny his
habeas petition.
I. BACKGROUND
The facts of this case were fully set out in this Court’s opinion on direct
appeal. See England v. State, 940 So. 2d 389, 393-96 (Fla. 2006). Briefly, on July
2, 2001, police found Howard Wetherell’s body in the shower of his upstairs
master bathroom. Id. at 393. Wetherell had been beaten to death, and numerous
items, including a fire poker and a green Mercury Sable automobile, were missing
from his condominium. Id. Though “[t]he State’s investigation of the crime scene
was impeded by a white, powdery substance that had been sprayed over the bloody
floor and furniture to cover up and destroy any potential evidence underneath,” law
enforcement recovered two cigarette butts from an upstairs bedroom. Id. DNA on
one of the cigarette butts belonged to England, and DNA on the other belonged to
Michael Jackson, a friend of England’s who had been “liv[ing] with Wetherell
trading sex for money and a place to stay” prior to the crime. Id. Several days
after the murder, Jackson was arrested after wrecking Wetherell’s missing car and
gave a statement implicating England in Wetherell’s murder. Id. On November 6,
1. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.
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2003, a Volusia County grand jury indicted England for first-degree felony and
premeditated murder and robbery with a deadly weapon. Id. at 394.
At England’s trial, in addition to presenting physical evidence linking
England to the crime, the State called numerous witnesses to testify regarding
England’s involvement in Wetherell’s murder, including jailhouse informant
Steven Diehl, England’s friend and drug-dealer fence, Reynaldo DeLeon,
England’s codefendant Michael Jackson, and Jackson’s brother. Id. at 394-96. As
detailed in this Court’s decision in England’s direct appeal, the jury heard
statements or testimony from each of these witnesses that implicated England in
Wetherell’s murder. See id.
The jury found England guilty of first-degree premeditated murder and
felony murder and robbery with a deadly weapon. Id. at 396. At the penalty
phase, the jury heard testimony from England, who denied killing Wetherell and
denied knowing about Wetherell and Jackson’s homosexual relationship; two of
England’s former employers and England’s girlfriend, all of whom testified that
England’s life is worth saving; and a defense investigator, who summarized
information obtained from his interviews with England’s mother and sister
regarding England’s difficult childhood, including physical and emotional abuse he
suffered. Following the penalty phase, the jury recommended death by a vote of
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eight to four. Id. The trial court followed the jury’s recommendation, finding that
the aggravating circumstances2 outweighed the mitigating circumstances.3
On direct appeal,4 this Court affirmed England’s conviction and death
sentence. Id. Thereafter, the United States Supreme Court denied England’s
petition for a writ of certiorari. England v. Florida, 549 U.S. 1325 (2007).
2. “The trial judge found four aggravating factors beyond a reasonable
doubt: (1) that England was under felony probation; (2) that he had a prior violent
felony conviction; (3) that the murder was committed during a robbery; and (4)
that the murder was especially heinous, atrocious, or cruel[.]” England, 940 So. 2d
at 408.
3. The trial court did not find any statutory mitigation. However, it found
“strong nonstatutory mitigators and afforded them great weight collectively.” Id.
Specifically, the trial court’s sentencing order stated:
The defense, despite not being allowed enough time by the Defendant
to fully develop the sentencing phase, was able to portray the
Defendant’s other side. . . . [T]hey showed him to be intelligent, a
quick learner, a hard worker. He is personable, trustworthy, a leader,
a good friend, and capable of a loving relationship. He is all of these
things despite a terrible childhood full of abuse, uncertainty and
abandonment. . . . The Defendant was torn from his siblings and
raised by [an] abusive man.
4. England raised the following claims on direct appeal:
(A) fundamental error occurred because Jackson’s testimony included
a reference to facts excluded by the trial judge; (B) the jury should
have been presented with a special verdict form; (C) certain crime
scene and autopsy photographs should not have been admitted
because they were gruesome and overly prejudicial; (D) the trial judge
admitted testimony in violation of the best evidence rule; (E) the trial
judge erred in permitting certain testimony from witness DeLeon; (F)
there was juror misconduct; (G) the trial judge erred in finding the
heinous, atrocious, or cruel (HAC) aggravator; (H) the trial judge
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In 2008, England filed a motion for postconviction relief. The circuit court
granted an evidentiary hearing on some of the claims, while summarily denying
others. Following the evidentiary hearing, the circuit court entered orders denying
relief on all claims.
England appeals the circuit court’s denial of postconviction relief and also
petitions this Court for a writ of habeas corpus.
II. POSTCONVICTION MOTION
A. Ineffective Assistance During the Guilt Phase
First, England argues that his trial counsel was ineffective during the guilt
phase for failing to ask witness Steven Diehl questions that would have allegedly
revealed that Diehl was a state agent. Because England has failed to establish the
requirements necessary for relief, we affirm the circuit court’s denial of this claim.
violated England’s right to a fair sentencing hearing by gagging
England during the penalty phase; (I) England’s right to testify was
violated; (J) the trial judge erred in refusing to permit reverse
Williams[ v. State, 110 So. 2d 654 (Fla. 1959),] rule evidence during
the penalty phase; (K) the trial judge treated England disparately from
codefendant Jackson in sentencing; (L) England’s death sentence
violates Roper[ v. Simmons, 543 U.S. 551 (2005)]; (M) England’s
death sentence was not proportional; and (N) England’s death
sentence violates Ring [v. Arizona, 536 U.S. 584 (2002)].
Id. at 396-97 (footnotes omitted).
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Following the United States Supreme Court’s decision in Strickland v.
Washington, 466 U.S. 668 (1984), this Court has explained that, to prevail on an
ineffective assistance of counsel claim, a defendant must satisfy two requirements:
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.
Bolin v. State, 41 So. 3d 151, 155 (Fla. 2010) (quoting Maxwell v. Wainwright,
490 So. 2d 927, 932 (Fla. 1986)).
Regarding Strickland’s deficiency prong, there is a strong presumption that
trial counsel’s performance was not ineffective. Strickland, 466 U.S. at 690.
Moreover, “[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.” Id. at 689. The defendant bears the burden to
“overcome the presumption that, under the circumstances, the challenged action
‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955)). Regarding Strickland’s prejudice prong, “the defendant
‘must show that but for his counsel’s deficiency, there is a reasonable probability
that he would have received a different [outcome].’ ” Tanzi v. State, 94 So. 3d
482, 490 (Fla. 2012) (quoting Porter v. McCollum, 558 U.S. 30, 40 (2009)). “A
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reasonable probability is a ‘probability sufficient to undermine confidence in the
outcome.’ ” Id. (quoting Strickland, 466 U.S. at 694).
“Because both prongs of Strickland present mixed questions of law and fact,
this Court employs a mixed standard of review, deferring to the trial court’s factual
findings that are supported by competent, substantial evidence, but reviewing the
trial court’s legal conclusions de novo.” Dennis v. State, 109 So. 3d 680, 690 (Fla.
2012).
England has not established either deficiency or prejudice. Regarding
deficiency, trial counsel identified the possibility that Diehl was acting as a state
agent, moved to suppress his testimony, and deposed him on the issue. Trial
counsel did not call Diehl to testify during the suppression hearing, and Diehl’s
deposition occurred after the trial court denied the motion to suppress.
Nevertheless, as trial counsel testified in the postconviction evidentiary hearing,
had the deposition revealed new facts concerning Diehl’s relationship with the
State, the motion could have been renewed before Diehl was permitted to testify at
trial. However, Diehl’s deposition did not reveal any additional evidence that
indicated he was a state agent.
Instead, the record shows that England faults his trial counsel for failing to
ask Diehl questions that trial counsel actually asked, though trial counsel phrased
these questions differently than England now claims he should have. Specifically,
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England contends that trial counsel did not adequately question Diehl about his
first contact with law enforcement, who initiated that contact, and how Diehl’s
initial meeting with the detectives investigating Wetherell’s murder occurred. But,
during Diehl’s deposition, trial counsel asked, “When did you first talk to law
enforcement about this case?” and “Is it possible you had conversations with law
enforcement before or after the taped interview [with detectives]?” In response,
Diehl spoke only of meeting with the detectives investigating Wetherell’s murder.
Similarly, when Diehl was asked at trial how he came to meet with police, he said
that he had “requested to do so” “[t]hrough a sergeant of the corrections facility.”
Diehl also testified at trial that he came forward because he was disturbed by the
information England told him—which included England’s statement that “he
bludgeoned ‘an old pervert’ to death with a pipe”—because he felt it was his civic
duty. England, 940 So. 2d at 395.
Contrary to his deposition and trial testimony, during the postconviction
evidentiary hearing, Diehl testified that a jail deputy “informed me that he knew I
was kind of buddying up with Richard England and asked me if I would be
interested in speaking with anyone about what was to do — you know, information
that I heard from Richard England.” Though Diehl could not remember the
deputy’s name, he provided a general physical description. Corrections officers
matching this description who were working in Diehl’s area of the jail during the
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time period in question testified at the evidentiary hearing that they had not
contacted Diehl about providing information concerning England and that doing so
would have been against their procedure. Though Diehl testified at the evidentiary
hearing that the detectives asked him, “off the record,” to question England, Diehl
consistently testified (both in his deposition and at trial) that the detectives
cautioned him against asking England questions, informed him that he could not
act as their agent, and did not offer him any benefit in exchange for information or
his testimony. At the evidentiary hearing, the detectives testified that they told
Diehl that he could not act as their agent or question England, that they did not
promise Diehl anything in exchange for information, and that they did not tell
Diehl anything different “off the record.”
Under the circumstances, trial counsel’s attempts to discover whether Diehl
was acting as a state agent were entirely reasonable and therefore not deficient.
See Simmons v. State, 105 So. 3d 475, 493 (Fla. 2012) (concluding that counsel
was not deficient because his actions were “reasonable under the circumstances”).
England has also failed to establish prejudice. As we explained in our
decision on England’s direct appeal, the evidence tying England to Wetherell’s
murder included physical evidence and incriminatory statements that England
made to others implicating himself in the crime. See England, 940 So. 2d at 393-
96. For example, the man whom England contacted about fencing items stolen
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from Wetherell (Reynaldo DeLeon) testified that England and Jackson “brought
antique guns, jewelry, and silver” to his house and “England told [him] that
Jackson had hit a man, stolen the items, and then went to find England. England
also said that he and Jackson went back to the man’s house and found him alive, so
England hit the man with a fire poker until he died.” Id. at 394.
Given that Diehl’s testimony concerning England’s statements was
cumulative of other incriminatory statements that England made, such as those
testified to by DeLeon, there is no reasonable probability that England would have
received a different outcome. Our confidence in the outcome is not undermined.
See Overton v. State, 976 So. 2d 536, 556 (Fla. 2007) (concluding defendant failed
to establish prejudice where similar testimony to that challenged by the defendant
supported the conviction).
Accordingly, we deny relief.
B. Ineffective Assistance During the Penalty Phase
Next, England argues that trial counsel was ineffective for failing to
adequately investigate and prepare the penalty phase and counter the State’s case
in aggravation with additional mitigating evidence. Because England has not
established that these alleged failings prejudiced him, we deny relief.
We have repeatedly recognized that where a defendant fails to establish
prejudice, it is not necessary to address whether counsel’s performance was
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deficient. See, e.g., Allen v. State, 854 So. 2d 1255, 1261 (Fla. 2003) (“Because
we hold that Allen fails to establish prejudice, we do not address whether his
counsel’s performance was deficient.”). For a defendant to establish that he was
prejudiced by trial counsel’s failure to investigate and present mitigation, the
defendant “must show that but for his counsel’s deficiency, there is a reasonable
probability he would have received a different sentence. To assess that probability,
we consider ‘the totality of the available mitigation evidence—both that adduced at
trial, and the evidence adduced in the [postconviction] proceeding’—and
‘reweig[h] it against the evidence in aggravation.’ ” Dennis, 109 So. 3d at 695
(quoting Porter, 558 U.S. at 41 (quoting Williams v. Taylor, 529 U.S. 362, 397-98
(2000))). “A reasonable probability is a ‘probability sufficient to undermine
confidence in the outcome.’ ” Id. (quoting Strickland, 466 U.S. at 694).
During the postconviction evidentiary hearing, England presented testimony
from his mother and sister concerning his difficult upbringing, alcohol and drug
use, and the physical and emotional abuse he suffered as a child. Although more
detailed, much of their testimony was cumulative to the defense investigator’s
testimony during the penalty phase, in which he summarized his interviews with
England’s mother and sister—who, as the postconviction court found, were
unavailable to testify before the jury. Further, though England’s mother and sister
testified for the first time during the evidentiary hearing that England may have
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been sexually abused, their testimony was merely speculative, and England himself
has consistently denied ever being the victim of sexual abuse.
In addition to newly-raised speculations of sexual abuse, for the first time at
the evidentiary hearing, England presented testimony from a mental health expert,
Dr. Carpenter, who testified that England suffered from an extreme mental or
emotional disturbance at the time of Wetherell’s murder. Specifically, Dr.
Carpenter testified that England has bipolar disorder and murdered Wetherell in a
“homophobic rage.” In support of his diagnosis, Dr. Carpenter explained that
England has ego-dystonic homosexuality, meaning that he is a homosexual (or
bisexual) but dislikes this about himself because it is at odds with his view of
himself as a heterosexual. Dr. Carpenter opined that, in order to eliminate his
conflict about his own homosexual urges or actions, England lashed out in a
homophobic rage and killed Wetherell. In addition, Dr. Carpenter testified that
England had ADHD as a child that went undiagnosed, was held back in school,
and that he potentially has brain damage.
However, as the postconviction court explained in its order denying relief,
Dr. Carpenter’s testimony was refuted by two other mental health experts and
England himself. Specifically, Drs. Danziger and Riebsame testified that England
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has antisocial personality disorder,5 that he does not have bipolar disorder, and that
there were no statutory mental health mitigators applicable to his case. Dr.
Danziger testified that homophobic rage is not recognized in the DSM-IV, and Dr.
Riebsame explained that a homophobic rage theory would not be consistent with a
first-degree murder like Wetherell’s where the evidence shows that the killer had
the presence of mind to destroy evidence. Dr. Riebsame further testified that
England does not have brain damage but that he does have psychopathic
characteristics. And, though Drs. Danziger and Riebsame testified that England
suffers from alcohol and polysubstance dependence, there was no testimony that
England’s alcohol or drug use played a role in Wetherell’s murder.
Moreover, England himself rebutted his own expert’s homophobic rage
theory. Specifically, England denied killing Wetherell, denied knowing that
Wetherell was in a homosexual relationship with Jackson, prohibited his trial
counsel from making homosexuality an issue in the case, denied that homophobia
or homophobic rage had anything to do with the crime, and wrote a letter to the
postconviction court requesting that this claim be removed from his postconviction
motion because he is not a homosexual.
5. Dr. Carpenter testified that England has histrionic personality disorder
with antisocial features, but disagreed with Dr. Danziger and Dr. Riebsame’s
conclusion that antisocial is the dominant personality disorder.
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Considering all of the evidence presented during the penalty phase and the
evidentiary hearing, the mitigating circumstances would not have outweighed the
four aggravating circumstances present in this case, namely HAC, prior violent
felony, during the commission of a robbery, and felony probation. See Porter, 558
U.S. at 41; Dennis, 109 So. 3d at 695. There is no reasonable probability that
England would have received a different sentence. Our confidence in the outcome
is not undermined.
Therefore, we affirm the postconviction court’s denial of relief.
III. HABEAS PETITION
A. Ineffective Assistance of Appellate Counsel
England argues that appellate counsel was ineffective for failing to argue
that the trial court (1) abused its discretion by allowing England to revoke his
speedy trial waiver; and (2) erred by allowing England to represent himself without
making the inquiry required by Faretta v. California, 422 U.S. 806 (1975).
Claims of ineffective assistance of appellate counsel are properly presented
in a petition for a writ of habeas corpus. Wickham v. State, 124 So. 3d 841, 863
(Fla. 2013). “The standard of review for ineffective appellate counsel claims
mirrors the Strickland standard for ineffective assistance of trial counsel.” Id.
Specifically, to be entitled to habeas relief on the basis of ineffective assistance of
appellate counsel, the defendant must establish
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[first, that] the alleged omissions are of such magnitude
as to constitute a serious error or substantial deficiency
falling measurably outside the range of professionally
acceptable performance and, second, [that] the deficiency
in performance compromised the appellate process to
such a degree as to undermine confidence in the
correctness of the result.
Bradley v. State, 33 So. 3d 664, 684 (Fla. 2010) (quoting Pope v. Wainwright, 496
So. 2d 798, 800 (Fla. 1986)). Further, “appellate counsel cannot be deemed
ineffective for failing to raise nonmeritorious claims.” Valle v. Moore, 837 So. 2d
905, 908 (Fla. 2002).
(1) Speedy Trial
England first contends that appellate counsel was ineffective for failing to
argue on direct appeal that the trial court abused its discretion by allowing him to
revoke his speedy trial waiver. England is not entitled to relief.
Minutes after agreeing to a continuance that would have waived his right to
a speedy trial under Florida Rule of Criminal Procedure 3.191, England told the
trial court that he had changed his mind and wanted to go to trial. England made
this decision despite being informed that his trial counsel could not adequately
prepare for either the guilt or penalty phases without a continuance and despite the
trial court’s repeated admonitions that England should listen to his attorney. After
recognizing that it could “stand on ceremony” and find that England had waived
his right to a speedy trial because he had signed the motion for continuance, the
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trial court declined to do so, concluding that it was England’s right to a speedy trial
if he wanted one, which he clearly did, despite being informed of the risks.
The trial court did not abuse its discretion by giving England the speedy trial
he requested. See Curtis v. State, 685 So. 2d 1234, 1235-36 (Fla. 1996) (holding
that the trial court did not abuse its discretion by denying defense counsel’s request
for a continuance where the “informed and knowing” defendant “remained resolute
in his desire for a prompt trial” even though his counsel represented that he would
be “ill prepared”); see also Charlot v. State, 85 So. 3d 1176, 1178 (Fla. 4th DCA
2012) (“Insisting on the right to a speedy trial is tantamount to objecting to a
continuance of that trial.”). Therefore, appellate counsel was not deficient for
failing to raise this meritless argument on appeal. See Valle, 837 So. 2d at 908.
Accordingly, we deny relief.
(2) Faretta
Next, England claims that appellate counsel was ineffective for failing to
argue on direct appeal that the trial court should have conducted a Faretta inquiry.
Because the trial court did not err, we deny relief.
Florida law is clear that a Faretta inquiry is only required where the
defendant makes an “unequivocal” request for self-representation:
Under Faretta and our precedent, once an unequivocal request
for self-representation is made, the trial court is obligated to hold a
hearing, to determine whether the defendant is knowingly and
intelligently waiving his right to court-appointed counsel.
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Tennis v. State, 997 So. 2d 375, 378 (Fla. 2008).
In this case, England has not argued that he made an unequivocal request for
self-representation. Nor does the record reveal such a request. Nevertheless,
England claims that the trial court should have conducted a Faretta inquiry on the
following occasions: (i) before considering and ruling on oral pretrial motions in
which England asked the trial judge to recuse himself and asked for pretrial release
so that he could locate an alleged alibi witness; and (ii) before giving England the
impression that he could make the final decision about which witnesses to call.
However, since England “was not requesting the right to represent himself at the
trial, a Faretta hearing was not required.” Charlot, 85 So. 3d at 1178. Further, as
the State correctly argues, at the time of England’s trial in 2004, this Court’s
decision in Blanco v. State, 452 So. 2d 520, 524 (Fla. 1984), receded from by
Puglisi v. State, 112 So. 3d 1196, 1197-98 (Fla. 2013), gave defendants the final
say about which witnesses to call.
Accordingly, because the trial court did not err in failing to make a Faretta
inquiry, England cannot establish that appellate counsel’s failure to raise this issue
undermines our confidence in the outcome of his direct appeal. See Gamble v.
State, 877 So. 2d 706, 719 (Fla. 2004) (“Because the trial court did not err in
failing to make a . . . Faretta inquiry, Gamble cannot demonstrate that failure of
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appellate counsel to raise this issue undermined confidence in the outcome of the
appeal.”).
Therefore, we deny relief.
B. Remaining Claims
England raises four additional claims in his habeas petition. We summarily
deny three of these claims because they are procedurally barred since England
raised one of the three on direct appeal and all three in his postconviction motion.6
Having done so, England may not relitigate them in his habeas petition. See
Breedlove v. Singletary, 595 So. 2d 8, 10 (Fla. 1992) (“Habeas corpus is not a
second appeal and cannot be used to litigate or relitigate issues which could have
been, should have been, or were raised on direct appeal.”); Knight v. State, 923 So.
2d 387, 395 (Fla. 2005) (concluding the defendant was procedurally barred from
relitigating his postconviction claims in his habeas petition).
England also raises a cumulative error claim. However, because we find all
of England’s claims of error to be procedurally barred or otherwise without merit,
he is not entitled to relief. See Bell v. State, 965 So. 2d 48, 75 (Fla. 2007)
6. Specifically, England claims that (1) his constitutional right against cruel
and unusual punishment will be violated because he may be incompetent at the
time of his execution; (2) Florida’s capital sentencing scheme is unconstitutional as
applied to him under Ring and Apprendi v. New Jersey, 530 U.S. 466 (2000); and
(3) Florida’s death penalty statute is unconstitutional on its face and as applied to
him. England failed to appeal the postconviction court’s denial of these three
claims to this Court.
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(“[W]here individual claims of error alleged are either procedurally barred or
without merit, the claim of cumulative error must fail.” (quoting Griffin v. State,
866 So. 2d 1, 22 (Fla. 2003))).
IV. CONCLUSION
For the foregoing reasons, we affirm the denial of England’s postconviction
motion and deny his habeas petition.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
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 Volusia County,
James R. Clayton, Judge - Case No. 2003-35769 CFAES
Richard E. Kiley and Ali Andrew Shakoor, Assistant Capital Collateral Regional
Counsels, Middle Region, Tampa, Florida,
for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Mitchell D. Bishop,
Assistant Attorney General, Daytona Beach, Florida,
for Appellee/Respondent
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