Edward Allen Covington v. State of Florida & Edward Allen Covington v. Ricky D. Dixon, etc.

Supreme Court of Florida
____________
No. SC21-295
____________
EDWARD ALLEN COVINGTON,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC21-1077
____________
EDWARD ALLEN COVINGTON,
Petitioner,
vs.
RICKY D. DIXON, etc.,
Respondents.
August 25, 2022
PER CURIAM.
Edward Allen Covington appeals an order denying his motion
to vacate his convictions and sentences—including three
convictions for first-degree murder and three sentences of death—
filed under Florida Rule of Criminal Procedure 3.851, and petitions
this Court for a writ of habeas corpus. We have jurisdiction. See
art. V, § 3(b)(1), (9), Fla. Const. For the reasons expressed below,
we affirm the denial of postconviction relief and deny Covington’s
habeas petition.
I. BACKGROUND
In 2014, Covington pleaded guilty to murdering his girlfriend
and her two children, mutilating their bodies, and beating their dog
to death with a hammer. He waived a jury for the penalty phase
and was sentenced to death. On direct appeal, this Court set forth
the facts of the murders as follows:
In May 2008, Lisa Freiberg lived in Lutz, Florida,
with her two children, seven-year-old Zachary and two-
year-old Heather Savannah, and her boyfriend, Edward
Allen Covington. Covington met Lisa through an online
dating site and moved into her home in April 2008. On
May 11, 2008, Covington murdered Lisa, Zachary, and
Heather Savannah. He also killed the family dog, Duke.
....
. . . On Monday, May 12, 2008, when Lisa did not
drop the children off at the babysitter’s house as
expected, Barbara [Lisa’s mother] and her husband drove
over to Lisa’s house to check on her. When Barbara
opened the door and looked into the house, she saw
Zachary’s deceased, nude body and called 911.
-2-
Law enforcement responded to the scene and found
the home in complete disarray. The furniture was turned
over and there was blood on the floors, walls, and
surfaces in every room except the bathroom. In addition
to Zachary’s body, they found the bodies of Heather
Savannah, Lisa, and the dead dog at various locations
throughout the house. Heather Savannah had been
dismembered and decapitated. Zachary’s genitals had
been mutilated. Lisa’s body was in the doorway of the
master bedroom, with a bloody handprint on the wall
nearby. The dog’s body was on the floor in Heather
Savannah’s bedroom. Two hammers and five knives that
appeared to have been used in the murders were found
and collected. A mesh bag containing bloody clothing
was found under the mattress in the master bedroom.
Law enforcement found Covington in a closet in one
of the bedrooms. He indicated that he had taken a
number of pills. Depakote and Seroquel pills prescribed
to Covington were found in the house. Covington was
medically cleared by paramedics at the scene but
transported to the hospital for further diagnosis and
clearance. As he was being transported to the hospital,
Covington looked back and stated, “I can’t believe what
I’ve done.” After Covington was released from the
hospital on May 14, 2008, he was transported to the
Sheriff’s Office, where he was interviewed by detectives
and confessed to the murders.
....
Covington’s May 14, 2008, interview with detectives
was played at the penalty phase. In the interview,
Covington said that he met Lisa through an online dating
site in August 2007, and they hit it off. He said that he
had been living with Lisa on and off but officially started
living with her a couple of weeks before the murders and
everything was going great. He said Lisa and the
children loved him. He talked about the days leading up
to the murders. He said that he and Lisa were having
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problems potty-training Heather Savannah and that she
had not been eating properly. He knew that Barbara had
seen marks on Heather Savannah and that she thought
he was abusing the children. Barbara told Lisa that she
did not want Lisa to take the children back home while
Covington was there. Covington denied abusing the
children and said it “really, really ticked [him] off” that
Barbara thought he was. He admitted that he had hit
Heather Savannah on the leg when she picked up a cell
phone a couple of days before the murders but said he
did not mean to hit her hard. He also admitted that the
marks could have occurred when he spanked Heather
Savannah, but he said he did not realize he spanked her
that hard.
Covington said that Lisa picked up the children
from Barbara’s on Saturday afternoon, the day before the
murders. Covington prepared lunch for the children and
dinner for the four of them. They ate dinner around
6 p.m. and then took the children to visit with [Heather
Savannah’s father’s] family. While the children and Lisa
were visiting, Covington said he needed to go check his
mailbox and left, but he actually went to buy and smoke
crack cocaine.
According to Covington, when they got home around
9:30 p.m. or 10 p.m., the children went to bed, and
Covington and Lisa had a drink together and had sex.
Covington then played a computer game. He and Lisa
went to bed around midnight or 1 a.m. Before bed,
Covington said he “took a handful of Seroquel” because
he was “dog tired” and it had not been as effective
recently. He said he took roughly 1,000 milligrams of
Seroquel (including four 200-milligram, extended release
pills), which he described as “a hundred [milligrams] over
the max[imum] safe dose.” Covington said when the
Seroquel works properly, “it’s like turning off a light
switch. . . . [A]ll the extra thought . . . shuts off,
everything goes quiet.” The extended release Seroquel
-4-
was new to Covington and he said the first time he took
one 200-milligram pill, the effects lasted twenty-six
hours. Covington said that Lisa fell asleep in his arms.
Covington initially told the detectives that he did not
know what happened next, but he then admitted that he
“kind of” remembered what happened the next morning
and described what he said he remembered about the
murders.
Covington said that Lisa and Zachary were still in
bed around 10:30 Sunday morning when he found
Heather Savannah awake and lying on the couch in the
living room. Covington asked Heather Savannah “what
she was doing up and she just started to cry.” He said
“that is the last recollection of being in control I know of”
and the next thing he remembered was all the chaos and
killing. He said that he killed Heather Savannah first,
that he “hurt her the most,” and that he “cut her in half”
with a bread knife. He said the first thing he did was cut
Heather Savannah’s throat, “the jugular,” while she was
lying on the couch and he was standing over her. He
used four back-and-forth motions. He said he then
“literally ripped Savannah in half,” “almost like carving a
pig.” He said he had to get her undressed in order to cut
her in half. He believed she was dead at that time but
could not be sure. He also decapitated Heather
Savannah and set her head by the front door. Although
he initially said Heather Savannah was crying, he later
said she never yelled or cried. He specifically
remembered that the bread knife he used on Heather
Savannah was bent in the process. When asked about a
bite mark on Heather Savannah’s arm, he said he may
have left that the night before, because she was biting
Zachary and in order to “break[ ] her on that[,] . . . we
would bite her back.”
After he killed Heather Savannah, Covington
remembered choking and strangling Lisa. He said he did
not remember punching her but thought he might have
-5-
because he remembered her having a bloody face. He
said he used a two-and-a-half-inch-wide butcher knife
and an upward motion to stab her in the chest, which he
believed “probably perforated the heart and the lung.”
Zachary was still asleep in his top bunk when
Covington stabbed him. Zachary did not say anything
during the stabbing, and Covington thought that was
because he stabbed Zachary’s heart. He thought he
stabbed Zachary three times, once in the back and twice
in the chest cavity. He remembered a “chopping knife”
breaking off inside Zachary when it hit bone. Covington
then brought Zachary to the living room and removed his
scrotum and penis. He said that the mutilation did not
have a sexual basis and that he used pliers to touch
Zachary’s penis.
Covington killed Duke last, by punching him and
hitting him with a hammer.
Covington said that after Lisa was dead, he kept
hearing her voice, so he cut her again. Then he “got what
[he] could find of Savannah and Zachary and put ‘em
over by the front door.” He remembered calling his ex-
wife, Cheri, twice, but she did not answer, and he
thought he may have left a message the second time he
called.
Covington said that at some point he thought this
must be a nightmare and that he better take some more
Seroquel. He thought it was at that time that he took
Depakote, aspirin, Tylenol, and caffeine. He vaguely
remembered falling down in the closet while he was
looking for clothes. The next thing he remembered was
the police officers telling him to get out of the closet. He
did not know how long he had been in the closet but
remembered that it was daylight when he went in.
-6-
Covington v. State, 228 So. 3d 49, 52-56 (Fla. 2017) (footnote
omitted) (alterations in original), cert. denied, 138 S. Ct 1294
(2018).
The medical examiner testified that Lisa was beaten and
stabbed. Id. at 56. The fatal wound was a large gaping wound to
her neck, which appeared to have been made by a back-and-forth
sawing motion with a knife. Id. Her skull was fractured and
fragmented in a manner consistent with blows from the smaller
hammer found at the scene. Id. After her death, she was stabbed
in her abdomen and pubic region. Id. Heather Savannah died as a
result of her neck being cut. “Prior to the infliction of the fatal
wound, Heather Savannah was severely beaten—her cheek was cut
down to the bone, the top of her head was cut with a knife in a
scalping motion, and both of her femurs were fractured.” Id.Postmortem, “[s]he was decapitated and her torso was cut from the
genital region through the chest. Her right leg and hip were entirely
removed from the body.” Id. “Zachary died as a result of five stab
wounds to his neck and back . . . .” Id. “Prior to his death,
Zachary’s skull was fractured in a manner consistent with [having
been caused by] blows from the larger hammer found at the scene.”
-7-
Id. at 56-57. “A large, gaping wound to the front of Zachary’s body,
which exposed some of his internal organs, was inflicted
perimortem. After Zachary was dead, his genitals were removed,
additional stab wounds were inflicted to his chest and back, and
decapitation was attempted.” Id. at 57.
At the penalty phase, Covington presented
mitigation mainly through his parents and several
experts, including Dr. Daniel Buffington, a clinical
pharmacologist; Dr. Alfonso Saa, a psychiatrist; Dr.
Valerie McClain, a psychologist; Dr. Harry Krop, a
psychologist; and Dr. Bala Rao, a psychiatrist.
The evidence presented in mitigation established
that when Covington was a newborn in 1972, he was
given a massive overdose of an antibiotic, which caused
him to permanently lose thirty percent of his hearing.
The hearing loss was especially upsetting to Covington
because it prevented him from becoming a Navy pilot.
But Covington received a settlement from the hospital
and used the money to hire a private flight instructor and
obtain a pilot’s license at the age of seventeen. Covington
was a good student and did not get into trouble in school.
He was employed with the Florida Department of
Corrections (DOC) from 1996 to 2006.
Covington has a long history of mental health issues
and substance abuse beginning at age fifteen, when he
was first hospitalized for mental health treatment,
diagnosed with a “chemical imbalance,” and prescribed
medication. He was later diagnosed with bipolar disorder
and hospitalized on a number of occasions over the
years. Covington was not always compliant in taking his
prescribed medications and would self-medicate with
drugs and alcohol. While working for the DOC,
-8-
Covington was abusing cocaine and opiates. Covington
stopped working for the DOC because he was getting very
paranoid due to his cocaine use. Covington described
cocaine to Dr. Krop as “like a mistress, like a siren calling
to me.” Covington told Dr. Krop that he spent $200-250
per week on cocaine during the same time period in
which he complained that his psychiatric medications
were financially unavailable to him. Covington admitted
that he was aware for years prior to the murders that
every time he used alcohol and cocaine it triggered a rage
reaction in him and could cause him to lose control, but
he drank almost a half-liter of alcohol and used crack
cocaine the night before the murders anyway.
Id.The trial court found multiple aggravating circumstances were
proven beyond a reasonable doubt as to each murder. Id. at 60. 1
1. This court summarized the trial court’s sentencing findings
as follows:
As to the murder of Lisa Freiberg, the trial court
concluded that three aggravating circumstances were
proven beyond a reasonable doubt: (1) the capital felony
was especially heinous, atrocious, or cruel (great weight);
(2) Covington was previously convicted of another capital
felony or of a felony involving the use or threat of violence
(great weight); and (3) the capital felony was committed
while Covington was on felony probation (minimal
weight).
As to the murder of Zachary Freiberg, the trial court
concluded that four aggravating circumstances were
proven beyond a reasonable doubt: (1) Covington was
previously convicted of another capital felony or of a
felony involving the use or threat of violence (great
weight); (2) the victim of the capital felony was a person
-9-
It found that two statutory mitigating circumstances were
established—“the capital felony was committed while Covington was
under the influence of extreme mental or emotional disturbance
(moderate weight),” and “Covington has no significant history of
prior criminal activity (moderate weight)”—and twenty-four
nonstatutory mitigating circumstances were established, including
that “Covington suffers from bipolar disorder, intermittent explosive
less than twelve years of age (great weight); (3) the capital
felony was committed while Covington was on felony
probation (minimal weight); and (4) the victim of the
capital felony was particularly vulnerable because
Covington stood in a position of familial or custodial
authority over the victim (great weight).
As to the murder of Heather Savannah Freiberg, the
trial court concluded that five aggravating circumstances
were proven beyond a reasonable doubt: (1) the capital
felony was especially heinous, atrocious, or cruel (great
weight); (2) Covington was previously convicted of
another capital felony or of a felony involving the use or
threat of violence (great weight); (3) the victim of the
capital felony was a person less than twelve years of age
(great weight); (4) the capital felony was committed while
Covington was on felony probation (minimal weight); and
(5) the victim of the capital felony was particularly
vulnerable because Covington stood in a position of
familial or custodial authority over the victim (great
weight).
Covington, 228 So. 3d at 60.
- 10 -
disorder, and cocaine and alcohol abuse disorder (great weight),”
and that “Covington’s capacity to conform his conduct to the
requirements of the law was diminished due to his mental illness
and his voluntary use of cocaine and alcohol (moderate weight).”
Id. (footnotes omitted). The trial court sentenced Covington to
death for each murder as well as concurrent sentences of fifteen
years for each of the three counts of mutilation of a dead body and
five years for cruelty to an animal. Id. at 61. We affirmed the
convictions and sentences on direct appeal. Id. at 69.
II. POSTCONVICTION APPEAL
In 2019, Covington filed a motion for postconviction relief
under Florida Rule of Criminal Procedure 3.851, followed by several
amendments thereto. After holding an evidentiary hearing on a
number of claims over five days in December 2019 and September
2020, the trial court denied relief. This appeal follows.
A. Evolving Standards of Decency
Covington first asserts that the trial court erred in summarily
denying his claim that evolving standards of decency prohibit his
death sentence because of his severe mental illness. He claims to
raise the issue on appeal “to preserve this specific subclaim should
- 11 -
current or future law or cases require a claim of incompetency at
time of execution be raised at this stage of postconviction
proceedings.” Initial Br. of Appellant at 6.
In denying this claim, the trial court found that it was
“procedurally barred and has been previously rejected on the merits
by the Florida Supreme Court.” Because this Court has repeatedly
concluded that there is no categorial bar on execution of the
mentally ill and because this claim should have been raised on
direct appeal, see Carroll v. State, 114 So. 3d 883, 886-87 (Fla.
2013), there was no error in denying this claim.
B. Ineffective Assistance of Counsel During the Penalty Phase
Covington contends that the trial court erred in denying a
number of his claims of ineffective assistance of trial counsel.
Under Strickland v. Washington, 466 U.S. 668, 686-88 (1984),
a defendant alleging that he or she received ineffective assistance of
counsel has the burden to demonstrate counsel’s performance fell
below an objective standard of reasonableness. In order to prevail
on a claim of ineffective assistance of counsel, a defendant must
show both that trial counsel’s performance was deficient and that
the deficient performance prejudiced the defendant. Id. at 687. As
- 12 -
to the first prong, the defendant must establish “that counsel made
errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id. Generally,
a court reviewing the second prong must determine whether “there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id.
at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.“Where the defendant claims counsel rendered ineffective
assistance in the penalty phase, ‘the question is whether there is a
reasonable probability that, absent the errors, the sentencer . . .
would have concluded that the balance of aggravating and
mitigating circumstances did not warrant death.’ ” Hayward v.
State, 183 So. 3d 286, 297 (Fla. 2015) (quoting Strickland, 466 U.S.
at 695).
However, Strickland cautions that “[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.” 466 U.S. at 689. We
must “indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must
- 13 -
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)).
Hayward, 183 So. 3d at 297. “[T]here is no reason for a court
deciding an ineffective assistance claim . . . to address both
components of the inquiry if the defendant makes an insufficient
showing on one.” Strickland, 466 U.S. at 697.
1. Insanity as Mitigation
Covington first argues that the postconviction court erred in
denying his claim that counsel was ineffective for failing to present
evidence at the penalty phase that he was insane at the time he
committed the murders.
At trial, Covington was represented primarily by Julianne Holt,
the elected Public Defender for the Thirteenth Judicial Circuit,
Theda James, and Michael Peacock, all of whom are very
experienced death-qualified defense attorneys. James was lead
counsel for the penalty phase.
During the penalty phase, James elicited testimony from three
mental health experts—Dr. McClain, Dr. Krop, and Dr. Rao—that
Covington suffers from bipolar disorder and that he qualified for
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both mental health statutory mitigators. Covington, 228 So. 3d at
58; see § 921.141(6)(b), Fla. Stat. (2014) (“The capital felony was
committed while the defendant was under the influence of extreme
mental or emotional disturbance.”); § 921.141(6)(f), Fla. Stat. (2014)
(“The capacity of the defendant to appreciate the criminality of his
or her conduct or to conform his or her conduct to the requirements
of law was substantially impaired.”). The trial court found that
Covington had established the statutory mitigator that the capital
felony was committed while he was under the influence of extreme
mental or emotional disturbance. Covington, 228 So. 3d at 60. And
although the court did not find that Covington’s capacity to
appreciate the criminality of his conduct or to conform his conduct
to the requirements of law was “substantially impaired” so as to
qualify for the other statutory mental health mitigator, it did find,
as a nonstatutory mitigator, that his capacity to conform his
conduct to the requirements of the law was “diminished” due to his
mental illness and his voluntary use of cocaine and alcohol. Id.
Both of those mitigators were given moderate weight. Id.
Covington asserts that Dr. McClain would have testified at the
penalty phase that Covington was insane at the time of the murders
- 15 -
had counsel asked, and as a result, “the judge would have given
greater weight to the following mitigating factors: extreme mental or
emotional disturbance; the capacity of Covington to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of law was substantially impaired at the time of
offense”;2 and the nonstatutory mitigators. Initial Br. of Appellant
at 32. At the evidentiary hearing, Covington presented testimony
from two experts retained by Covington in postconviction, Drs.
Mark Cunningham and Frank Wood, who opined that Covington
was insane at the time of the murders.
James testified at the evidentiary hearing that out of the
seventeen doctors she consulted with before the trial, Dr. McClain
was the only one who was of the opinion that Covington was insane
at the time of the murders. James was concerned that if she
elicited testimony from Dr. McClain that Covington was insane at
the time of the murders, that would open the door for the State to
elicit the opinions of other defense experts, namely, Drs. Krop and
2. Because this mitigator was not found by the trial court,
Covington presumably meant that the court would have found it to
be established rather than giving it greater weight.
- 16 -
Rao, as well as the opinions of State experts, Drs. Myers and
Lazarou, that Covington was not insane at the time of the murders.
James also testified that all the underlying factors that led Dr.
McClain to her opinion that Covington was insane at the time of the
murders were presented at the penalty phase in support of the two
statutory mental health mitigators.
We agree with the postconviction court that counsel’s
performance was not rendered deficient by her failure to ask Dr.
McClain for her opinion on insanity in light of the fact that counsel
elicited all of the underlying factors that led Dr. McClain to her
opinion and that asking the question directly would have opened
the door to testimony refuting her opinion from a minimum of four
experts. And even though postconviction counsel was able to find
two more experts who were willing to testify in the postconviction
proceedings that Covington was insane at the time of the murders,
“[t]rial counsel is not deficient because the defendant is able to find
postconviction mental health experts that reach different and more
favorable conclusions than the mental health experts consulted by
trial counsel.” Diaz v. State, 132 So. 3d 93, 113 (Fla. 2013); see
Wyatt v. State, 78 So. 3d 512, 533 (Fla. 2011); Asay v. State, 769
- 17 -
So. 2d 974, 986 (2000). By not directly asking for Dr. McClain’s
ultimate opinion on insanity, counsel presented all of the same
evidence that would have supported the defense but precluded the
State from eliciting potentially damaging testimony that Covington
was sane at the time of the offenses.
Nor was Covington prejudiced by counsel’s decision not to
present insanity as mitigation. Even if Dr. McClain’s opinion on
insanity had been presented at the penalty phase, it would have
been rebutted by no less than four other experts. It is highly
unlikely that the trial court would have made a finding that
Covington was insane at the time of the murders; unless the court
found the other four experts to be incredible, which it did not, the
evidence presented would have weighed against such a finding.
2. PET and qEEG Scans
Covington next argues that trial counsel was ineffective for
failing to obtain a PET scan of his brain and present the results at
the penalty phase. Covington alleges that he was prejudiced
because a PET scan would have shown significant brain impairment
that would have been highly mitigating. He also argues that
counsel was ineffective for failing to move for reconsideration of the
- 18 -
motion to admit the qEEG 3 evidence once Covington waived a
penalty phase jury, and that it violates due process and equal
protection for the trial court here to have barred the qEEG evidence,
while a court in Miami-Dade County has permitted qEEG evidence
in another capital trial.
At the evidentiary hearing, Dr. Wood, a neuropsychologist
retained by Covington for postconviction purposes, testified that a
PET scan was conducted on Covington in 2019. The scan was
conducted in Jacksonville by a scanner that has been in operation
since long before Covington’s trial and has a 500-pound weight
limit. According to Dr. Wood, the PET scan showed “thinning of the
brain tissue in the left auditory cortex,” which is “a possible
mechanism for some of [Covington’s] reported hallucinations,”
hypoactivity of the anterior cingulate, which “organizes and
commits an organized behavior to the muscles of the body” and is
related to “impulsive, reactive aggression, not to carefully planned
aggression.”
3. As explained in this record, a qEEG “is a technique that
puts electrodes around the scalp and tries to localize brain
function, either normal or impaired, under this bank of electrodes.”
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Counsel James testified at the evidentiary hearing that a
pretrial qEEG was conducted on Covington and a Frye 4 hearing was
held, because qEEG scans were new and novel in the Thirteenth
Circuit. James intended to use neuroimaging to provide additional
corroboration for Covington’s bipolar diagnosis, although she
already “had enough medical records to corroborate” his bipolar
diagnosis.
Beginning early in her representation of Covington, James
began consulting with experts to determine whether Covington had
some brain dysfunction or neurological injury that could be
developed as mitigating evidence. In the summer of 2008, Dr. Krop
conducted a series of neuropsychological tests on Covington but
found no deficits. He advised that Covington’s neuropsychological
testing indicated that his frontal lobe is essentially within normal
4. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The
Frye standard is used to determine the admissibility of expert
opinion testimony that relies upon a new or novel scientific
principle, theory, or methodology. Under Frye—the applicable
standard in Florida until 2019—the principle, theory, or
methodology on which the opinion evidence is based must be
scientifically valid, and the procedures followed to apply the
technique or process must be generally accepted in the relevant
scientific community.
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limits. It was explained to James that neuropsychological testing is
the “gold standard,” meaning it “is the best or primary diagnostic
tool to ascertain the existence of frontal lobe or cognitive
impairment.” Nonetheless, James still pursued neuroimaging,
consulting with more experts.
An MRI and EEG of Covington’s brain were also done pretrial
and came back normal, except the MRI showed some mild diffuse
atrophy, which at least two experts considered not to be a
significant finding. Several experts advised James that a PET scan
would not likely be revealing based on the results of other testing,
but James continued to pursue one, eventually consulting with Dr.
Wu, whom she knew to be “a nationally-recognized medical doctor
with specialty in neuroimaging,” who often testified “on behalf of
criminal death penalty defendants pertaining to neurological issues
and neuroimaging.”
Dr. Wu advised that a PET scan would show abnormalities in
individuals with bipolar disorder, which interested James because
she was seeking corroboration of the bipolar diagnosis. Dr. Wu
further noted that some PET scan facilities have a 300- or 350-
pound weight limit (Covington weighed approximately 350-375
- 21 -
pounds) and that Covington might need to be weaned off his
medications—Seroquel and Depakote 5—for a short time because
they might show up as an artifact on the scan. When James
indicated that it was probably unadvisable to take Covington off his
medications, Dr. Wu advised that the scan could still be conducted,
but that the Depakote might reduce temporal lobe abnormality and
produce a false negative.
James testified that she was concerned about weaning
Covington off his medications because he had previously been
confrontational with the deputies at the jail, received a disciplinary
report, and felt paranoid that some of the deputies were targeting
him. Also, Dr. Weaver, who treated Covington at the jail, had
advised that Covington’s medications were still being modified, so
he was not stable. James noted that Covington’s prior violent
episodes, such as the murders and the killing and dismembering of
his ex-wife’s cats, occurred when he was off his medications. She
was concerned that taking him off his medications for a PET scan
5. Seroquel is an antipsychotic. Depakote is a mood
stabilizer.
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might trigger episodes of rage or violence, which could have affected
his health and his case. Counsel Holt echoed James’s concerns
about Covington’s potential behavior while off his medications and
finding a facility to accommodate his weight. Even Covington did
not think going off his medications was in his best interest,
because, he said, the only time that he felt good and could control
himself was when he was on medication. After her investigation
and after consultation with Dr. Wu and other experts and some PET
scan facilities, and considering Covington’s physical problems,
weight, weaning him off of his medications, and numerous experts
telling her that they did not think a PET scan would be favorable
anyway, James eventually decided not to pursue one further.
Dr. Lawrence Holder testified at the evidentiary hearing that
although there is a lot of research pending about PET scans, “right
now there are no accepted uses for PET imaging in psychology or
behavioral areas.” Dr. Holder reviewed Covington’s postconviction
PET scan images and his pretrial CT scan and MRI and found them
to be normal, with only some mild age-related changes.
In light of the advice of the numerous experts consulted that
neuropsychological testing is the “gold standard” for determining
- 23 -
brain function and that a PET scan was unlikely to be revealing, as
well as the difficulty in finding a PET scan machine to accommodate
Covington’s size or weight, potential security and transportation
issues, the ongoing adjustments to his medication at the jail, and
Dr. Wu’s recommendation that Covington should be weaned off of
his medication when Covington’s history contained extensive
documented evidence of aggression and violence when not on
proper medication, the postconviction court concluded that counsel
made a reasonable decision under the circumstances not to pursue
a PET scan.
The postconviction court also found that Covington failed to
establish that he was prejudiced by the lack of a PET scan, because
any finding of organic brain damage presented in the postconviction
proceedings would not warrant a new penalty phase, and Dr.
Holder’s testimony that the PET and CT scans were normal—which
was consistent with previous reports finding that Covington’s
neuropsychological testing, MRI, and EEG were also normal—was
more credible than that of Covington’s postconviction experts. The
postconviction court found no evidence that his psychological or
neuropsychological examinations were in any way “grossly
- 24 -
insufficient” or that any indicators of brain damage or dysfunction
were ignored.
The postconviction court also found no merit to Covington’s
argument that counsel should have renewed the motion to admit
qEEG evidence once Covington waived the penalty phase jury.
When ruling on the motion, the trial court specifically directed the
parties to file argument as to “whether, assuming arguendo, the
Court concluded that the proposed evidence does not satisfy the
Frye standard for admissibility, such evidence should
notwithstanding be admissible in a death penalty second phase
sentencing proceeding, or in a Spencer hearing proceeding.”
Therefore, the trial court considered the admissibility of the qEEG
in the absence of a penalty phase jury and concluded that it was
inadmissible regardless of the presence or absence of a jury. The
postconviction court did not err in denying relief on this claim.
As to Covington’s allegation that counsel was deficient for
failing to obtain a PET scan, we agree with the postconviction
court’s conclusion that counsel made a reasonable, strategic
decision to forego a PET scan under the circumstances. Several
experts told counsel that a PET scan was unlikely to yield favorable
- 25 -
results. She was also told that a PET scan could only be used in
conjunction with neuropsychological testing, but because the
neuropsychological testing did not reveal any abnormalities, there
was nothing for a PET scan to corroborate. Counsel was also
concerned that by taking Covington off his medications, he might
engage in violent or threatening behaviors that could jeopardize
other aspects of his case. These were reasonable concerns, and
such behaviors could have had a detrimental effect on the
mitigation and lessened Covington’s chance of receiving a life
sentence. Further, because counsel was able to successfully
establish Covington’s bipolar disorder without a PET scan, there
was no deficient performance even if PET scan results would have
provided more corroboration of the diagnosis. “As this Court has
held, ‘even if alternate witnesses could provide more detailed
testimony, trial counsel is not ineffective for failing to present
cumulative evidence.’ ” Wheeler v. State, 124 So. 3d 865, 881 (Fla.
2013) (quoting Darling v. State, 966 So. 2d 366, 377 (Fla. 2007));
see also Downs v. State, 740 So. 2d 506, 516 (Fla. 1999) (affirming
the trial court’s denial of claims that counsel was ineffective for
- 26 -
failing to investigate and present additional mitigating evidence that
was cumulative).
For the same reason, the lack of a PET scan did not prejudice
Covington. Counsel was only interested in a PET scan as additional
corroboration of Covington’s bipolar disorder, for which she already
had sufficient corroboration through medical records, and because
she already had sufficient corroboration, the sentencing court found
that the existence of Covington’s bipolar disorder was established
and substantially mitigating. Thus, there is no reasonable
probability that having additional corroboration of a mitigating
circumstance that was already sufficiently established would have
resulted in a life sentence.
Covington’s allegation that counsel was ineffective for failing to
move for reconsideration of the motion to admit the qEEG in the
penalty phase once Covington waived a penalty phase jury also
fails. Even in the absence of a jury, the qEEG would not have
satisfied Frye, so there would have been no reason for the court to
reconsider its ruling that the qEEG was inadmissible at the penalty
phase. Because “counsel cannot be deemed ineffective for pursuing
futile motions, trial counsel cannot be deemed to have performed
- 27 -
deficiently in this regard.” Gordon v. State, 863 So. 2d 1215, 1219
(Fla. 2003).
Nor is Covington entitled to relief on his claim that it violates
due process and equal protection for the trial court in Hillsborough
County to have barred qEEG evidence in Covington’s capital penalty
phase, while another court in Miami-Dade County permitted the
defense to present qEEG evidence in another capital trial. Because
this claim should have been raised on direct appeal, it is
procedurally barred. See Dailey v. State, 283 So. 3d 782, 793 (Fla.
2019) (stating that claims that “could have been, should have been,
or were raised on direct appeal” are procedurally barred).
3. Interrogation/Confession Video
Covington next asserts that the postconviction court erred in
denying his claim that counsel was ineffective for failing to move to
redact his videotaped interrogation to exclude references to
prejudicial and inflammatory matters, including collateral offenses.
When detectives interviewed Covington at the sheriff’s office on May
14, 2008, he admitted to the murders and discussed events that
preceded them. Counsel attempted to have the entire statement
suppressed, but when that motion was denied, counsel sought to
- 28 -
have the statement admitted in its entirety under the doctrine of
completeness, as opposed to allowing the State to redact portions.
At the evidentiary hearing, James acknowledged that the
videotaped interrogation included various subjects that were
disturbing, including the prior cat mutilations, child abuse,
domestic violence, and other collateral offenses. But James
planned to introduce most of those facts as mitigation through the
experts to show the seriousness of Covington’s mental health issues
and to support her overall penalty phase theme. According to
James, “the bottom line” for the penalty phase was that the defense
“knew that a lot of this stuff was going to come in any way through
the testimony of [their] medical experts when they did the detailed
history of [Covington’s] mental health episodes.”
Counsel Peacock testified that once the motion to suppress
was denied, a strategic decision was made to object to redacting the
tape for purposes of completeness. He testified that evidence of the
cat mutilations, substance abuse, and violent and suicidal acts
would have been presented through Dr. McClain’s testimony
whether or not it was going to come out in the confession tape.
Peacock testified that what is symptomatic of severe mental illness
- 29 -
is conduct or behavior that may not be flattering to a defendant
through a layperson’s eyes, and that was especially true in
Covington’s case.
In denying relief on this claim, the postconviction court found
the testimony of counsel to be credible that after the motion to
suppress the video recorded statement was denied, they made the
strategic decision to allow the unredacted statement to be admitted
in its entirety for purposes of completeness and to support the
severity of Covington’s mental health issues and the overall
mitigation theme. The court found credible counsel’s testimony
that the defense wanted to portray the disturbing facts in the video
as symptoms of Covington’s serious mental illness, and found those
statements were consistent with the penalty phase theme that the
mental health system had failed Covington. Thus, the court
concluded that the decision to allow admission of the unredacted
statement was reasonable under the circumstances, and Covington
failed to demonstrate that counsel performed deficiently.
The postconviction court also found that Covington failed to
demonstrate prejudice where the disturbing facts mentioned in the
video were raised in the testimony of the defense’s mental health
- 30 -
experts to explain Covington’s extensive mental health history and
support their diagnoses.
We find no error in the trial court’s conclusion that counsel
made a reasonable, strategic decision to ask for the confession
video to be admitted in its entirety. At the penalty phase, counsel
used Covington’s history of illicit drug use and the cat mutilations
as a way for Dr. Buffington to explain his opinion that the murders
were likely the result of a violent bipolar episode. This strategy was
ultimately successful because the sentencing court noted that the
murders likely resulted from Covington’s mental health issues,
including bipolar disorder and substance abuse disorder and
afforded great weight to that mitigating circumstance. Other
defense experts gave testimony about the other disturbing facts in
the video as well. Under these circumstances, we agree that trial
counsel made a reasonable, strategic decision to object to the
State’s efforts to introduce a redacted version of Covington’s video
recorded statement. The postconviction court did not err in denying
this claim, and Covington is not now entitled to relief.
- 31 -
4. Waiver of Pretrial Objections and Motions
Covington next argues that the trial court erred in denying his
claim that counsel was ineffective for waiving pretrial objections and
motions and that the State denied Covington due process and
contributed to counsel’s ineffectiveness. In his motion for
postconviction relief, Covington alleged that trial counsel was
ineffective for “waiv[ing] objection to all of Mr. Covington’s
statements to police as well as all evidence of collateral crimes
committed by him,” which “caused the trial court to hear damning
evidence that contributed to the finding of aggravators and
discounting of mitigators.” He also alleged that counsel “failed to
preserve for appellate review Mr. Covington’s various motions to
suppress and motions to exclude collateral crime evidence,”
specifically: a motion to suppress the statements made to law
enforcement while Covington was a patient at University
Community Hospital; a motion to suppress statements made on the
confession tape (the same motion addressed above); a motion in
limine to exclude evidence that Covington committed acts of child
abuse against the two child victims; and a motion in limine to
- 32 -
exclude any evidence that Covington told a sheriff’s deputy that he
had a history of prior drug use.
On appeal, Covington disagrees with the postconviction court’s
finding that counsel was not deficient for failing to continue to
object to admission of the evidence discussed in the pretrial
motions because “counsel was aware that allowing any of this
evidence would be damaging to the fight for their client’s life.”
Initial Br. of Appellant at 71. He essentially argues that the trial
court was wrong to deny the motions and therefore counsel should
have preserved them for appellate review.
The postconviction court did not err in denying relief on this
claim. As explained in the previous issue, counsel made a
reasonable, strategic decision not to object to the admission of
Covington’s video recorded statement and the mention of the
collateral crimes—potential child abuse and drug use—contained
therein.
Section 921.141(1), Florida Statutes (2014), governed
admissibility of evidence at a capital penalty phase and stated that
evidence may be presented as to any matter that the
court deems relevant to the nature of the crime and the
character of the defendant . . . . Any such evidence that
- 33 -
the court deems to have probative value may be received,
regardless of its admissibility under the exclusionary
rules of evidence, provided the defendant is accorded a
fair opportunity to rebut any hearsay statements.
However, this subsection shall not be construed to
authorize the introduction of any evidence secured in
violation of the Constitution of the United States or the
Constitution of the State of Florida.
Thus, even if all portions of the motions in limine regarding child
abuse and drug use were granted as to the guilt phase, the evidence
that would have been excluded at the guilt phase still would have
been admissible at the penalty phase. Further, as previously
explained, it was a reasonable, strategic decision not to object to
admission of this evidence during the penalty phase and to instead
use it as evidence of Covington’s serious mental health issues.
Because section 921.141(1) does not authorize the
introduction of any evidence secured in violation of the United
States or Florida Constitution, the two motions to suppress could
have survived Covington’s guilty pleas. But again, as previously
explained, counsel made a reasonable, strategic decision not to
object to the admission of any part of the video recorded statement
at the penalty phase. Regarding the statements made while
Covington was a patient at the hospital, he does not explain when
- 34 -
these statements were admitted at the penalty phase or how they
were used against him. He has therefore insufficiently briefed this
claim as to those statements and is not entitled to relief.
5. ASPD and Psychopathy
Next, Covington argues that the trial court erred in denying
his claim that counsel was ineffective for failing to object to and
adequately rebut Dr. Myers and Dr. Lazarou’s diagnosis of
antisocial personality disorder (ASPD) and to refute and object to
the use of the bad character evidence of Covington being a
psychopath.
At the penalty phase, trial counsel presented testimony
from three mental health experts, Drs. McClain, Krop, and
Rao, who opined that Covington does not have ASPD. In
rebuttal, the State called Drs. Myers and Lazarou who opined
that Covington does have ASPD. Regarding psychopathy, Dr.
Myers testified that ASPD is “another term really for what
would be criminal personality or psychopathic personality.”
Dr. Lazarou also testified that Covington met the criteria for
psychopathy.
- 35 -
At the evidentiary hearing, Covington presented testimony
from Dr. Cunningham, a clinical and forensic psychologist. Dr.
Cunningham did not refute Drs. Myers and Lazarou’s diagnosis of
ASPD; rather, he felt that it was not the best explanation for
Covington’s conduct the night of the murders. He also stated that
even if Covington has ASPD, it does not explain his conduct relating
to the murders, particularly the mutilation and dismemberment of
the children. Dr. Cunningham disagreed with the State’s trial
experts that Covington is a psychopath. Dr. Cunningham also
testified that ASPD and psychopathy do not rebut or diminish the
mitigation.
Counsel James testified that she was aware prior to the
penalty phase that the State was going to introduce evidence that
Covington had ASPD and it was her understanding that ASPD
encompassed psychopathy. Based on Dr. Lazarou’s pretrial
deposition in which she discussed her opinion that Covington is a
psychopath, James advised her experts that she wanted them to be
prepared to rebut the State’s experts’ opinions that Covington is a
psychopath and has ASPD. When asked whether she considered
asking one of her experts to administer the Hare Psychopathy
- 36 -
Checklist to Covington to see if he would be disqualified as a
psychopath, James responded that she does not tell her experts
what type of tests to conduct, but instead relies on their knowledge.
In denying relief on this claim, the postconviction court first
found no deficiency, because counsel was entitled to rely on the
evaluations conducted by the qualified mental health experts. The
court also noted that Drs. McClain, Rao, and Krop not only testified
regarding their diagnoses of bipolar disorder, but also explained
how they ruled out ASPD, and therefore, Dr. Cunningham’s
postconviction testimony refuting or even explaining ASPD was
substantially cumulative to the testimony presented at the penalty
phase. The court cited Jennings v. State, 123 So. 3d 1101, 1116
(Fla. 2013), in concluding that even if Dr. Cunningham provided
additional information or a different perspective regarding ASPD,
the fact that a defendant has “produced more favorable expert
testimony at his evidentiary hearing is not reason enough to deem
trial counsel ineffective.”
The postconviction court found no prejudice was
demonstrated because the sentencing order did not reflect that the
trial court found that Covington has ASPD or is a psychopath.
- 37 -
Instead, the trial court found that “Covington suffered from a long-
standing condition of bipolar disorder, intermittent explosive
disorder, and cocaine and alcohol abuse disorder,” and accorded
that mitigating circumstance great weight.
The postconviction court did not err. There is competent,
substantial evidence in the record to support the finding that
James’s testimony regarding her efforts to rebut Drs. Myers and
Lazarou’s diagnosis of ASPD was credible. And this Court will not
substitute its judgment for that of the postconviction court as to the
credibility of witnesses so long as the findings are supported by
competent, substantial evidence. See Lowe v. State, 2 So. 3d 21,
29-30 (Fla. 2008).
The records made in both the trial and postconviction
proceedings reflect that James was aware of the State’s intent to
introduce evidence of ASPD and psychopathy in advance of trial
and that she took reasonable actions with her experts to counter
that testimony. The penalty phase record reflects that counsel
presented testimony from at least three experts who testified that
Covington does not have ASPD. There was also evidence introduced
at the evidentiary hearing substantiating James’s claim that she
- 38 -
spoke with at least one expert regarding the necessity for him to be
able to adequately counter the diagnosis of the State’s experts.
Introduced at the evidentiary hearing was a pretrial memo written
by James, memorializing a phone conference with Dr. Rao on
September 16, 2014, in which James advised him that she wanted
him to be able to use specific documents to support his diagnosis to
counter Dr. Lazarou’s use of specific documents to support her
ASPD diagnosis. And Dr. McClain testified at the evidentiary
hearing that she was made aware prior to penalty phase that Drs.
Myers and Lazarou were going to testify that Covington met the
criteria for ASPD, so in anticipatory rebuttal, she testified at the
penalty phase that, in her opinion, Covington does not meet the
criteria for ASPD.
James also testified at the evidentiary hearing (and the trial
record reflects) that she filed a pretrial motion to exclude any
evidence regarding future dangerousness, including psychopathy,
which was granted as to future dangerousness, but did not
preclude the State from introducing testimony that Covington has
ASPD.
- 39 -
The postconviction court also properly concluded that
Covington failed to demonstrate prejudice. The sentencing court
noted that it would consider evidence of ASPD to the extent that it
rebuts evidence presented by Covington that he has bipolar
disorder. Nonetheless, the sentencing order does not reflect a
finding that Covington has ASPD or that he is a psychopath, but it
does reflect that he “suffered from a long-standing condition of
bipolar disorder, intermittent explosive disorder, and cocaine and
alcohol abuse disorder,” and great weight was accorded to that
mitigating circumstance. Thus, even if trial counsel had presented
Dr. Cunningham at the penalty phase in addition to or in lieu of the
experts that were called, there is no reasonable probability that
Covington would have received a life sentence, because the
testimony of the State’s experts regarding ASPD and psychopathy
did not preclude the trial court from finding that Covington suffered
from “bipolar disorder, intermittent explosive disorder, and cocaine
and alcohol abuse disorder” and assigning great weight to that
mitigating circumstance. Covington is not entitled to relief on this
claim.
- 40 -
6. Substance Abuse as Mitigation
Covington next argues that the trial court erred in denying his
claim that trial counsel was ineffective for failing to fully develop
and present substance abuse as a mitigating factor. He claims that
trial counsel was ineffective for failing to argue in the sentencing
memorandum that Covington’s history of drug use was a distinct
mitigating factor independent of its interaction with his severe
mental illness, and as a result, “the State was allowed to present
poly-substance use disorder as an aggravating factor and mislead
with an inaccurate, uneducated, and scientifically unsupported
picture of completely voluntary substance abuse.” Initial Br. of
Appellant at 92. Covington avers that had defense counsel not been
ineffective, the trial court would have considered his history of
substance abuse disorder purely as mitigation and afforded it great
weight.
At the penalty phase, numerous defense experts—Drs.
McClain, Krop, Rao, Suarez, and Weaver—testified that in addition
to his bipolar disorder, Covington has alcohol, cocaine, and/or
polysubstance abuse disorder. In the sentencing order, the trial
- 41 -
court found as a mitigating circumstance accorded great weight
that
Mr. Covington suffered from a long-standing condition of
bipolar disorder, intermittent explosive disorder, and
cocaine and alcohol abuse disorder. At the time he
committed the homicides he was under the influence of
voluntary use of cocaine and alcohol, and was not
properly medicated for his documented mental condition
because it had been interrupted in part because of
insurance issues, and in part because of Mr. Covington’s
own choices and decisions, albeit knowing that cocaine
and alcohol abuse would trigger his rage and violence.
At the evidentiary hearing, Dr. Cunningham testified that the
most powerful factors in determining whether drug and alcohol
dependence is volitional are “heredity and mood disorder”. He
explained that
the person that has this sort of predisposition from mood
disorder or from a hereditary predisposition, when they
use drugs or alcohol—it triggers an experience in them
that is fundamentally unlike what it creates in me. And
so we each get a choice, but we don’t get the same
choice. We get a choice that is shaped by our
metabolism.
In denying this relief on this claim, the postconviction court
found no deficiency because counsel relied on her experts to advise
her of Covington’s mental health mitigation, and the sentencing
court ultimately found that Covington “suffered from a long-
- 42 -
standing condition of bipolar disorder, intermittent explosive
disorder, and cocaine and alcohol abuse disorder,” and accorded
that circumstance great weight. The postconviction court also
found that Dr. Cunningham’s postconviction testimony did not
refute the testimony presented at trial that Covington was aware
that his episodes of rage and violence were precipitated by his
cocaine and alcohol use, and there was no reasonable probability
that Covington would have received a life sentence had counsel
presented Dr. Cunningham’s testimony at the penalty phase or
argued that substance abuse was a mitigating factor in itself.
The postconviction court did not err in denying relief on this
claim. First, Covington’s allegation that counsel was deficient for
failing to argue in the sentencing memo that Covington’s drug use
should be considered a mitigating factor separately from his mental
illness does not overcome the “highly deferential” judicial scrutiny
under which attorney conduct is analyzed. Strickland, 466 U.S. at
689. Even assuming it was an “error” not to parse out substance
abuse as a separate mitigating circumstance, it cannot be
considered “so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.- 43 -
at 687. Second, the State did not urge, and the sentencing court
did not find, that Covington’s polysubstance abuse was an
aggravating factor.
Further, Covington did not allege in his postconviction motion
that counsel’s alleged deficiencies here prejudiced him such that
but for the alleged deficiencies, the result of the proceeding would
have been different. While he claims that had defense counsel not
been ineffective, the trial court would have considered his history of
substance abuse disorder purely as mitigation and afforded it great
weight, the trial court did afford great weight to the fact that
“Covington suffered from a long-standing condition of bipolar
disorder, intermittent explosive disorder, and cocaine and alcohol
abuse disorder.” Further, even if the trial court did separate
substance abuse into its own mitigating circumstance, Covington
does not assert that the result would have been a life sentence.
7. Child Abuse and People from the Past
In his final claim of ineffective assistance, Covington argues
that the trial court erred in denying his claim that counsel was
ineffective for failing to present evidence of child abuse and
testimony from important people in his past.
- 44 -
He asserts that counsel failed to obtain Dr. Lazarou’s
handwritten notes, which indicated that he had suffered abuse as a
child, and which should have been presented. He further asserts
that counsel was deficient for failing to investigate and speak with
Katherine Black, an ex-girlfriend of Covington’s, whose testimony at
the penalty phase would have shown that he had a warm
relationship with a female.
At the penalty phase, Melissa Pulianas, a former co-worker of
Covington’s, testified that Covington became her closest friend in
2002, for about two years, and he was one of the nicest people she
had ever met, who helped her through a time when she hit rock
bottom with her depression by being her shoulder to cry on and
encouraging her. She was “absolutely dumbfounded” to hear about
the murders because she never saw anything in Covington that
would have given her “the slightest indication that anything like
this could have ever happened.” William Taylor, a very good friend
of Covington’s from high school also testified at the penalty phase,
describing Covington as well-liked by everyone, the kind of guy who
would do anything for you, and happy go lucky. When he learned
about the murders on the news, Taylor was “blown away” and
- 45 -
“couldn’t believe it,” because the Covington he knew would never do
something like that. There was no testimony at the penalty phase
that Covington was abused as a child.
At the evidentiary hearing, James testified that although she
had Dr. Lazarou’s notes reflecting the child abuse, she chose to
present the evidence on which her trusted experts relied. All of the
evidence she had, based on her review of records and her
discussions with her experts and family members, was that
Covington was not physically abused. Covington never told her that
he was physically abused, and she “had no evidence, other than
this one statement by Dr. Lazarou, that he was physically abused.
Nothing from Mr. Covington himself or family members, nothing in
any medical records.” It was very clear to James that Covington
wanted to continue to enjoy an amicable relationship with his
parents, did not want to publicly expose any violence within the
family dynamic, and was, to a certain extent, limiting matters to be
presented at the penalty phase. James explained that Covington
did not want to risk harming the family dynamics, “so the decision
was made with Mr. Covington of how [the defense] would proceed in
certain areas.” James said, “He was very firm in how he wanted his
- 46 -
family to be perceived,” “so those are some decisions that were
made with Mr. Covington’s acquiescence, and, really, his direction if
you don’t like putting word [sic] in his mouth, but those were the
things that he preferred.”
Counsel Holt testified that while Covington told his defense
team that he had been spanked by his father, he did not indicate
that there had been years of abuse. Covington did not describe the
spankings in any terms that would lead her to believe they went
beyond the “usual or normal” corporal punishment that some
families use.
Katherine Black testified at the evidentiary hearing that she
dated Covington for around eight months in 1992 and 1993, when
she was around eighteen and he was around twenty years old, but
she had not seen him since 1993. She described Covington as
compassionate, helpful, and sober, and never violent toward her.
She never saw any bout of depression or any behavior resembling
mania. She lived with Covington and his family for four to six
months. She knew Covington respected his parents and was close
with his father. Covington never told her that his father physically
- 47 -
abused him, and she never witnessed any abuse against him or his
sister.
In denying relief as to the allegation that counsel was
ineffective for failing to present evidence that Covington was
physically abused by his father, the postconviction court found the
testimonies of James and Holt credible that neither Covington nor
any of his family members ever advised his attorneys that he was
physically abused by his father and that he minimized evidence of
spanking or corporal punishment. The court found reasonable
James’s decision not to present evidence of child abuse where the
only reference to the abuse was found in one of the State’s expert’s
notes and there was no other corroborating evidence. The court
also found no prejudice, because even if the defense had presented
testimony or evidence regarding the references in Dr. Lazarou’s
notes, in light of the evidence, the mitigators, and the aggravators
presented, there was no reasonable probability that Covington
would have received a life sentence.
As to the failure to present the testimony of Katherine Black,
the postconviction court found no deficiency because her testimony
was largely cumulative to the penalty phase testimonies of Melissa
- 48 -
Pulianas and William Taylor. Additionally, the trial court found as
a mitigator that Covington “has the ability to form positive
friendships.” The postconviction court also concluded that even if
Katherine Black had testified at the penalty phase, there is no
reasonable probability that Covington would have received a life
sentence.
The postconviction court did not err in denying relief on this
claim. At the outset, it should be noted that Covington’s allegation
that trial counsel failed to obtain Dr. Lazarou’s notes is incorrect.
The record is clear that counsel moved pretrial to obtain Dr.
Lazarou’s notes, and the State provided them in discovery. James
also testified at the evidentiary hearing that she had the notes prior
to trial.
Both James and Holt testified that Covington did not want
evidence of violence in his family introduced at the penalty phase.
The postconviction court found that testimony credible and that
finding is not challenged. “As the Supreme Court noted in
Strickland, ‘the reasonableness of counsel’s actions may be
determined or substantially influenced by the defendant’s own
statements or actions.’ ” Cherry v. State, 781 So. 2d 1040, 1050
- 49 -
(Fla. 2000) (quoting Strickland, 466 U.S. at 691). Where there is
proof that counsel spent substantial effort on the case and was
familiar with the mitigation, but also evidence that the defendant
interfered with trial counsel’s ability to present mitigating evidence,
this Court will not overrule a trial court’s conclusion that counsel’s
performance was not deficient. Power v. State, 886 So. 2d 952, 961
(Fla. 2004); see also Sims v. State, 602 So. 2d 1253, 1257-58 (Fla.
1992) (concluding that counsel could not be considered ineffective
for honoring the defendant’s wishes where the defendant directed
counsel not to collect other mitigating evidence). And to the extent
that counsel relied on her experts and the fact that they did not
discover any evidence to indicate that Covington suffered child
abuse, this Court has previously held that “[c]ounsel cannot be
found deficient for relying on the evaluations of qualified mental
health experts, ‘even if, in retrospect, those evaluations may not
have been as complete as others may desire.’ ” Carter v. State, 175
So. 3d 761, 775 (Fla. 2015) (quoting Jennings, 123 So. 3d at 1116).
Thus, the postconviction court did not err in concluding that
Covington failed to establish deficient performance.
- 50 -
As to the failure to present the testimony of Katherine Black at
the penalty phase, there is competent, substantial evidence in the
trial record to support the conclusion that Black’s testimony would
have been largely cumulative to the testimonies of Melissa Pulianas
and William Taylor, which the trial court relied on to find as a
mitigator that Covington “has the ability to form positive
friendships.” “[T]rial counsel is not ineffective for failing to present
cumulative evidence.” Darling, 966 So. 2d at 378. Thus, there was
no deficient performance. Covington was also not prejudiced by the
failure to present cumulative evidence. See Dufour v. State, 905 So.
2d 42, 61 (Fla. 2005) (holding that defendant failed to demonstrate
prejudice where additional mitigating evidence did not substantially
differ from that presented during the penalty phase); Atwater v.
State, 788 So. 2d 223, 234 (Fla. 2001) (“There is no reasonable
probability that re-presenting virtually the same evidence through
other witnesses would have altered the outcome in any manner.”).
C. Cumulative Error
The totality of Covington’s argument of cumulative error is:
“Due to the errors that occurred individually and cumulatively, this
Court should grant relief from this unconstitutional death
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sentence.” Initial Br. of Appellant at 99. Because Covington has
not demonstrated error, deficiency, or prejudice as to any of his
claims, the claim of cumulative error fails. See Whitton, 161 So. 3d
at 333 (“As discussed above, Whitton is not entitled to relief on any
of his claims and is therefore not entitled to relief based on
cumulative error.”).
III. PETITION FOR A WRIT OF HABEAS CORPUS
In addition to his postconviction appeal, Covington filed a
petition for a writ of habeas corpus in this Court, in which he raises
two claims.
A. New Proportionality Analysis
Covington first argues that this Court should reconduct its
proportionality analysis to ensure accordance with the Eighth
Amendment’s prohibition against cruel and unusual punishment.
While Covington recognizes our recent decision in Lawrence v.
State, 308 So. 3d 544, 550-52 (Fla. 2020), cert. denied, 142 S. Ct.
188 (2021), in which we held that the conformity clause in article I,
section 17 of the Florida Constitution prohibits us from
undertaking comparative proportionality review, Covington urges us
to recede from Lawrence and conduct a new proportionality
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analysis in this case, taking into account that Covington was insane
at the time of the murders. Covington is not entitled to relief on
this claim for several reasons.
First, the claim is procedurally barred, in more ways than one.
The first sentence Covington writes in support of this claim is “In
Claim III of Mr. Covington’s 3.851 Motion filed February 28, 2019,
he argued in part that his proceedings ‘were inadequate to
determine whether his case was the most aggravated and least
mitigated.’ ” Pet. for Writ of Habeas Corpus at 4. The fact of the
matter is that while claim III of the postconviction motion did not
discuss Lawrence and argued that Covington should be entitled to
relief under Hurst v. State, 202 So. 3d 40 (Fla. 2016), despite
waiving a penalty phase jury, the title of it states, “The proceedings
in Mr. Covington’s case were inadequate to determine whether his
case was one of the most aggravated and least mitigated,” which is
the very heart of this claim in the Petition. And in denying claim III
of the postconviction motion, the postconviction court specifically
noted that part of that claim was that “the procedure employed here
‘was constitutionally inadequate to place Mr. Covington’s case in
the most aggravated and least mitigated.’ ” Thus, because
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Covington did attack this Court’s proportionality review in his
postconviction motion, it is procedurally barred in his habeas
petition. See Smith v. State, 126 So. 3d 1038, 1053 (Fla. 2013)
(stating that claims that were raised in a postconviction motion “are
not properly presented in a petition for a writ of habeas corpus”).
This claim is also procedurally barred because the
proportionality of Covington’s death sentence was raised and
decided on direct appeal. “Habeas corpus is not to be used to
relitigate issues determined in a prior appeal.” Bolender v. Dugger,
564 So. 2d 1057, 1059 (Fla. 1990). Not only is Covington
attempting to relitigate the proportionality of his death sentence, he
is trying to do so with additional mitigation—his alleged insanity—
which was not found by the trial court to have been established.
As to the merits of this claim, Covington asserts that this
Court should reconduct the proportionality analysis to ensure
accordance with the Eighth Amendment’s prohibition against cruel
and unusual punishment. But the Eighth Amendment does not
require a comparative proportionality analysis. Pulley v. Harris, 465
U.S. 37, 50-51 (1984) (“There is . . . no basis [in Supreme Court
case law] for holding that comparative proportionality review by an
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appellate court is required in every case in which the death penalty
is imposed and the defendant requests it.”); Lawrence, 308 So. 3d
at 548. Thus, a new proportionality analysis would not ensure
accordance with the Eighth Amendment, nor would it be any
different than the original analysis since no court has found that
Covington was insane at the time of the murders. This Court is
tasked with assuring that death sentences imposed in Florida
comport with the Eighth Amendment, whether or not they are
comparatively proportional. And Covington has made no
compelling argument to support his request that this Court recede
from Lawrence. We therefore deny relief on this claim.
B. Whether Covington’s Death Sentences Violate the Sixth,
Eighth, and Fourteenth Amendments
Covington claims that his
death sentence[s] violate[] the Eighth and Fourteenth
Amendments to the United States Constitution because
Mr. Covington’s severe mental illness exempts him from
the death penalty based on evolving standards of decency
and because Mr. Covington’s case is not the most
aggravated and least mitigated. The process for
determining Mr. Covington’s death sentence was
inadequate, thus denying him due process under the
Fourteenth Amendment and further violating the Eighth
Amendment by failing to accurately determine whether
his case belonged in the class of cases that may lead to a
death sentence. To the extent that the arguments that
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follow could have been developed and presented by trial
counsel, trial counsel was ineffective, thus denying Mr.
Covington his rights under the Sixth and Fourteenth
Amendments to the United States Constitution.
Pet. for Writ of Habeas Corpus at 25-26.
Similar to the previous claim, the very first paragraph
Covington writes in support of this claim acknowledges that it was,
at least in part, raised in his motion for postconviction relief:
Mr. Covington’s death sentence is unconstitutional
because evolving standards of decency have reached the
point where someone suffering from the severe mental
illness that Mr. Covington does cannot constitutionally
be sentenced to death. This claim was made in Claim II
of the Petitioner’s 3.851 Motion, but was denied as the
lower court found “that mental illness is not a categorical
bar to a death sentence.”
Id. at 26.
By Covington’s own admission, this claim was raised in his
postconviction motion and rejected. The record confirms this.
Thus, the claim that evolving standards of decency bar Covington’s
execution due to his mental illness, is procedurally barred. See
Smith, 126 So. 3d at 1053 (stating that claims that were raised in a
postconviction motion “are not properly presented in a petition for a
writ of habeas corpus”). This claim is also procedurally barred
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because it could have been raised on direct appeal. Dailey, 283 So.
3d at 793.
The other subclaims raised here—that the process for
determining Covington’s death sentence was inadequate and that
trial counsel was ineffective—were previously raised and therefore
also procedurally barred. They are also insufficiently pleaded, as
they are not discussed at all within this claim. See Wheeler, 124
So. 3d at 889-90 (denying a claim as insufficiently pleaded where
the appellant “completely failed to make any legal argument to
support” the claim). Covington is therefore not entitled to relief on
this claim.
IV. CONCLUSION
For the reasons stated above, we affirm the postconviction
court’s order denying Covington’s motion for postconviction relief
and deny the petition for a writ of habeas corpus.
It is so ordered.
MUÑIZ, C.J., and CANADY, POLSTON, LABARGA, LAWSON,
COURIEL, and GROSSHANS, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Hillsborough County,
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Michelle Sisco, Judge - Case No. 292008CF009312000AHC
And an Original Proceeding – Habeas Corpus
Eric Pinkard, Capital Collateral Regional Counsel, David D. Hendry
and Cortney L. Hackett, Assistant Capital Collateral Regional
Counsel, Middle Region, Temple Terrace, Florida,
for Appellant/Petitioner
Ashley Moody, Attorney General, Tallahassee, Florida, and Marilyn
Muir Beccue, Senior Assistant Attorney General, Tampa, Florida,
for Appellee/Respondent
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