Toney Deron Davis v. State of Florida

Supreme Court of Florida
____________
No. SC12-115
____________
TONEY DERON DAVIS,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC13-424
____________
TONEY DERON DAVIS,
Petitioner,
vs.
MICHAEL D. CREWS, etc.,
Respondent.
[April 10, 2014]
PER CURIAM.
Toney Deron Davis appeals an order of the circuit court denying his motion
to vacate his convictions and sentences—including a conviction for first-degree
felony murder and sentence of death—filed under Florida Rule of Criminal
Procedure 3.851. Davis also petitions this Court for a writ of habeas corpus. We
have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons expressed
below, we affirm the postconviction court’s order and deny Davis’s habeas
petition.
I. BACKGROUND
In 1995, Davis was convicted of first-degree felony murder, aggravated
child abuse, and sexual battery, stemming from the murder of two-year-old
Caleasha Cunningham on December 9, 1992. Davis v. State, 703 So. 2d 1055,
1056 (Fla. 1997). On appeal, this Court set out the facts of the crimes:
On the day of the murder, the mother [Gwen Cunningham] left her
child—then in good health and without injuries—in Davis’s care
while she ran an errand.
Thomas Moore, an acquaintance of Davis’s, testified that he
arrived at the apartment at around 12:45 p.m. and that Davis answered
the door with the victim draped over his arm. Moore said Davis told
him Caleasha had choked on a french fry. Moore said that after he
called 911 and returned to the apartment, Davis was giving the victim
mouth-to-mouth resuscitation. Moore went to the hospital with Gwen
Cunningham when she returned.
Davis testified that he had left Caleasha and his friend Moore
alone in the apartment at about 12:30 p.m. and went to make some
phone calls. He said that when he returned, Moore was gone and
Caleasha was having a seizure. He says he administered CPR, put her
in the shower to revive her, and accidentally dropped her in the
shower. Davis said that when Moore returned, he had him call 911.
Davis said that Moore asked him not to mention that he had been with
Caleasha because Moore had marijuana in his possession. Sergeant
Phillips testified that Davis told him he was alone with the child.
A neighbor, Janet Cotton, testified that she heard a child crying
in Cunningham’s apartment and a lot of thumping noises coming from
the apartment at approximately noon. She heard Davis say in a loud,
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angry voice, “Sit down.” She said that thirty minutes after the
“ruckus” ended, rescue personnel arrived.
The victim was wet, unconscious, and had blood in her mouth
when she was examined in the apartment. She was naked from the
waist down, although she had been fully clothed when left with Davis.
Davis said that the victim was choking on a french fry and he had
been trying to revive Caleasha.
The emergency-room doctor who treated the victim, Doctor
DeNicola, testified that the victim was brought in at around 1:40 p.m.
with bruising, swelling of the brain, and pools of blood in the skull.
Doctor Whitworth, who examined the child at the request of state
child welfare authorities, testified that the injuries indicated vaginal
penetration by a penis, a finger, or an object. The medical examiner,
Doctor Floro, testified that there was no injury to the vaginal area, but
that it could have healed quickly. He said the victim had suffered four
separate blows to the head, causing cerebral hemorrhage. This was
the cause of death.
There was additional bruising, and there was a large collection
of blood at the back of the head which was not consistent with being
accidentally dropped. The child was revived but died shortly
afterward on December 10, 1992.
Id. at 1056-57. At the penalty phase, the State relied on the guilt phase evidence
and Cunningham read a victim impact statement. The defense called Davis’s
parents as mitigation witnesses.
The jury recommended the death penalty by a vote of eleven to one, and
after conducting a hearing in accordance with Spencer v. State, 615 So. 2d 688(Fla. 1993), the trial court imposed the death penalty. The trial court found two
aggravating factors: (1) the murder was committed during the course of a sexual
battery; and (2) the murder was heinous, atrocious, or cruel (HAC). Based on
Davis’s three prior convictions—which included a crime of violence—the trial
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court rejected the asserted mitigating factors of “no significant prior criminal
history,” “good person,” and “not violent.” The trial court also determined that
Davis’s claim to be a good student was not proven and that his abstention from
smoking and drinking and the circumstantial nature of the case were irrelevant.
The trial court did give “some weight” to the factor of Davis’s background, based
on evidence that Davis was a good child, had musical talent, wrote poetry, and
attended church. Davis, 703 So. 2d at 1057.
Davis raised eight claims on direct appeal: (1) it was error not to follow
Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973), and Faretta v. California,
422 U.S. 806 (1975), when Davis moved to discharge counsel; (2) it was error to
deny his motion for a judgment of acquittal; (3) the sexual battery conviction
should be reversed; (4) it was error to admit the victim impact evidence; (5) the
court erred in considering and finding HAC where the jury did not consider that
aggravating factor; (6) it was error to find HAC proven; (7) it was error to find the
aggravating factor that the murder was committed during the course of a sexual
battery; and (8) the death penalty is disproportionate. Davis, 703 So. 2d at 1057-
58. This Court determined that sufficient evidence supported the convictions,
claim five was unpreserved, and that all of Davis’s claims were without merit. Id.
at 1058-61.
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In May 1999, Davis filed a shell motion for postconviction relief with a
request for leave to amend. Davis filed an amended postconviction motion in May
2004, and in July 2006, Davis filed a “Third Motion, as Amended, to Vacate
Judgments of Conviction and Sentences with Special Request for Leave to Amend
or Supplement.” Davis’s third motion asserted: (1) trial counsel was ineffective for
failing to ensure that Davis received a Nelson hearing, and appellate counsel was
ineffective for failing to raise this issue and ensure a complete record on appeal;
(2) the State violated Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United
States, 405 U.S. 150 (1972); (3) trial counsel was ineffective for failing to
investigate whether Gwen Cunningham could have been the source of the blood
found on Davis and at the scene; (4) it was fundamental error to conduct voir dire
prior to administering an oath to the jury; (5) it was fundamental error to conduct a
pretrial conference without Davis being present; (6) trial counsel was ineffective
for failing to sufficiently investigate and present evidence at the penalty phase; (7)
trial counsel was ineffective for failing to conduct an adequate voir dire and
exercise strikes; (8) trial counsel was ineffective for failing to object to improper
evidence and argument, failing to present evidence, and arguing the wrong theory
of defense; (9) Davis was denied a fair trial due to unobjected-to comments made
by the prosecutor about Davis’s defense; (10) Davis was denied a fair trial due to
unobjected-to comments made by the prosecutor that attempted to evoke sympathy
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from the jurors; (11) a previously raised claim that was abandoned in Davis’s third
motion; (12) Davis was denied a reliable sentencing when the jury’s role was
diminished in violation of Caldwell v. Mississippi, 472 U.S. 320 (1985); (13)
Davis was denied a reliable sentencing when the jury’s role was diminished in
violation of Ring v. Arizona, 536 U.S. 584 (2002); and (14) cumulative error
denied Davis a fair trial.
In 2010, the postconviction court conducted an evidentiary hearing. Davis
called two of his first cousins, Felicia Cotman and Latoya Johnson Davis; his trial
attorney, Charlie Adams; Dr. Edward Willey; and retired Detective Michael Earl
Hallam. Davis also testified on his own behalf. In rebuttal, the State called Dr.
Randall Curtis Alexander and the victim’s biological father, Rickey Love.
In 2011, the postconviction court entered an order denying Davis’s motion for
postconviction relief. State v. Davis, No. 16-1992-CF-13193-AXXX-MA (Fla. 4th
Jud. Cir. Dec. 19, 2011) (PC Order).
Davis appeals the postconviction court’s order. Davis contends that the
postconviction court erred by denying his claims that: (1) the State violated Brady
and Giglio; (2) defense counsel was ineffective for failing to present Dr. Willey;
(3) defense counsel was ineffective regarding his choice of defense theory; (4)
defense counsel was ineffective for failing to impeach several witnesses; (5)
defense counsel was ineffective for failing to object to prosecutorial misconduct;
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(6) defense counsel was ineffective for failing to investigate and present witnesses
at the penalty phase; (7) defense counsel was ineffective for failing to object to
comments that denigrated the role of the jury; and (8) cumulative error deprived
Davis of a fair trial. In addition, Davis filed a petition for a writ of habeas corpus,
asserting that appellate counsel provided ineffective assistance by: (1) failing to
challenge comments made by the prosecution; and (2) failing to argue that Davis
was entitled to a Nelson hearing based on two letters written by Davis to the trial
court.
II. MOTION FOR POSTCONVICTION RELIEF
On appeal, Davis contends that because the State violated Brady and Giglio
and because Davis’s trial counsel did not provide effective assistance of counsel as
defined by Strickland v. Washington, 466 U.S. 668 (1984), the postconviction
court should have vacated his convictions and sentences. Claims under Brady,
Giglio, and Strickland each present questions of law and fact. This Court thus
employs a mixed standard of review, deferring to the postconviction court’s factual
findings that are supported by competent, substantial evidence, but reviewing legal
conclusions de novo. Simmons v. State, 105 So. 3d 475, 487, 499 (Fla. 2012). For
the reasons explained below, we affirm the postconviction court’s order.
A. Brady and Giglio Claims
1. Brady Claims
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Davis contends that the State violated Brady by failing to disclose three
items: (1) a note written by Detective Hallam during his investigation which stated
that Cunningham had told Melissa Taylor, who was an employee of the hospital
where the victim was treated, that a few days before December 9, 1992, the victim
returned from her father’s home with a bump on her head and vaginal bleeding; (2)
a note written by an unknown author stating that employees of Happyland Daycare
had reported that due to asthma and diarrhea the victim had been absent from
daycare since December 3, 1992, and that in late November 1992, both the victim
and her sister had experienced vaginal discharge; and (3) a report titled “Family
Builders Termination Summary,” dated December 22, 1992, stating that
Cunningham had told a Family Builders’ employee that the victim was not in
daycare on December 9, 1992, due to asthma.
Brady requires the State to disclose material information within its
possession or control that is favorable to the defense. To establish a Brady
violation, the defendant has the burden to show that: (1) the evidence was either
exculpatory or impeaching; (2) the evidence was willfully or inadvertently
suppressed by the State; and (3) because the evidence was material, the defendant
was prejudiced. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). To meet the
materiality prong, the defendant must demonstrate a reasonable probability that
had the suppressed evidence been disclosed, the jury would have reached a
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different verdict. Id. at 289. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Way v. State, 760 So. 2d 903, 913 (Fla.
2000).
The postconviction court did not err in denying relief. To satisfy the
materiality prong of Brady, the suppressed information must either be itself
admissible or “lead to admissible substantive or impeachment evidence,” Hurst v.
State, 18 So. 3d 975, 1001 (Fla. 2009), and the admissible evidence must then be
of a nature that it undermines confidence in the jury’s verdict. Davis did not
establish that he was prejudiced by the State’s failure to disclose the notes or the
Family Builders report.
While Taylor’s statement to Detective Hallam does not fit a hearsay
exception, Hallam’s note about Cunningham’s statement to Taylor could be used
as impeachment evidence. The note is evidence of a prior statement that was
inconsistent with Cunningham’s trial testimony that the victim had not bled
vaginally before December 9, 1992. See Fitzpatrick v. State, 900 So. 2d 495, 515
(Fla. 2005) (“Romines’ statements made at the hospital are not hearsay because the
statements were offered in evidence not to prove the truth of the matter asserted,
but merely for impeachment purposes . . . .”). Davis cannot, however, establish
that such impeachment would be material.
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The defense argued, in part, that there was reasonable doubt about Davis’s
guilt because the victim may not have been the source of the blood found on Davis
and at the apartment and that the victim may have been injured before being left
with Davis on the morning of December 9, 1992. Cunningham testified that when
she left the house on that morning, the victim appeared healthy, the bed was made,
and there was no blood in the bedroom or the bathroom. A prior statement
undermining Cunningham’s testimony thus could have been favorable to the
defense. But even if the jury disregarded Cunningham’s testimony entirely, such
impeachment would not be material. Overwhelming evidence established that the
victim’s fatal injuries must have occurred on December 9, 1992, not several days
before when the victim was visiting her father.
Retired patrol sergeant Lloyd K. Phillips testified that when he arrived at the
scene, he saw “fresh blood” on the bathtub, the toilet seat, and the bed. Paramedic
Raymond Patrick Wade, Jr., testified that upon his arrival—approximately one
minute after the 911 call—the child was “lifeless” and had a small amount of
“blood coming from her vaginal canal.” Evidence technician Richard Coffee
testified that he was called to the crime scene around 2:30 p.m. on December 9,
1992, and that when he arrived, there were blood spots in many locations in the
apartment but not in the diaper that the victim had been wearing earlier in the day.
Coffee described the blood spots in the hallway as “[f]resh red.” Dr. Whitworth
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testified that when he examined the victim around 4:30 or 4:40 p.m. that day, he
saw two “fresh” hemorrhages to the victim’s hymen, which he opined were created
“less than 12 to 18 hours prior to this examination.” Dr. Whitworth similarly
opined that an injury to the victim’s forehead above her right eye was likely
inflicted “less than 30 or 48 hours” before the examination and that an injury to the
left side of the victim’s head and an injury to the victim’s buttock likely were
inflicted no more than twenty-four to forty hours prior to the examination. When
asked about an injury to the victim’s head, Dr. Whitworth explained that the victim
“would have lost consciousness or maybe begin to have seizures or maybe stop
breathing or some combination of those symptoms, but that she would be
obviously neurologically symptomatic almost immediately after injury.” When
asked if the victim’s response to the injury could have been delayed for a period so
that she could eat something, Dr. Whitworth answered, “No.”
In light of this evidence of recent severe injury, any doubt about the veracity
of Cunningham’s testimony about the victim’s health and the state of the apartment
on the morning of December 9, 1992, does not undermine confidence in the jury’s
verdict. Davis thus has not satisfied the third prong of Brady.
As for the note reporting statements made by employees of Happyland
Daycare and the Family Builders report, Davis again did not prove that he was
prejudiced by any failure by the State to disclose those documents. Davis did not
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establish how the items could be admissible evidence or lead to the discovery of
admissible evidence. Neither the “scribbled” notes nor the report could be
presented as substantive evidence because they “cannot be authenticated, the
author is unknown, and there is no indication of when or under what circumstances
[they were] written.” Jones v. State, 998 So. 2d 573, 581-82 (Fla. 2008). The
notes and report perhaps could be used to impeach Cunningham, see Pearce v.
State, 880 So. 2d 561, 570 (Fla. 2004) (holding that where a witness does not
distinctly admit making a prior inconsistent statement, extrinsic evidence of the
prior inconsistent statement may be admitted), but as explained above, the
possibility that Cunningham could be impeached does not undermine confidence in
the jury’s verdict.
2. Giglio Claims
Davis contends that the State violated Giglio by failing to correct false
testimony by witnesses Olivia Williams and Janet Cotton. “By contrast to an
allegation of suppression of evidence under Brady, a Giglio claim is based on the
prosecutor’s knowing presentation at trial of false testimony against the
defendant.” Mordenti v. State, 894 So. 2d 161, 175 (Fla. 2004). A Giglio
violation is demonstrated when: (1) the prosecutor presented or failed to correct
false testimony; (2) the prosecutor knew the testimony was false; and (3) the false
evidence was material. Guzman v. State, 941 So. 2d 1045, 1050 (Fla. 2006). The
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false evidence is deemed material under Giglio if there is any reasonable
possibility that it could have affected the jury’s verdict. Byrd v. State, 14 So. 3d
921, 925 (Fla. 2009). The State has the burden to prove that the false testimony
was not material by demonstrating it was harmless. Id.In his first Giglio claim, Davis asserts that the State knowingly allowed and
failed to correct false testimony when Williams testified that she spoke with Davis
around 10:30 a.m. on December 9, 1992, but that she did not speak with him again
that day. This Court has held, in the context of a Giglio analysis, that “[a]mbigious
testimony does not constitute false testimony.” Phillips v. State, 608 So. 2d 778,
781 (Fla. 1992) (concluding that informant’s testimony that he was not “a police
agent” was not false because the witness’s statement was “attributable to the
ambiguity of the term ‘agent’ ”). In this case, the postconviction court concluded
that Williams’ deposition testimony was ambiguous and thus did not demonstrate
that her trial testimony was false. The postconviction court did not err in denying
relief. The postconviction court’s factual conclusion that Williams’ testimony was
not false is supported by competent, substantial evidence.
At trial, the defense called Ronald Hezekiah Gordon, Jr., who testified that
on December 9, 1992, Davis came to his apartment around 12:30 p.m., asked to
use the phone, and socialized with Gordon for about twenty minutes. Gordon
explained that after Davis left Gordon’s apartment around 12:50 p.m., Gordon
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received a phone call for Davis. Gordon went to Davis’s apartment around 1:15
p.m. to relay the message, at which time he saw a man running to the phone booth
and Davis holding the victim. The State called Williams in rebuttal. Williams
testified that on December 9, 1992, she was supposed to call Cunningham or Davis
around 9:30 a.m., but she overslept, and instead Davis called her around 10 or
10:30 a.m. When asked if she had “any other contact with this defendant by
telephone at all after 10:30 on that day,” Williams answered that she did not.
Williams explained that she did try to call Davis two more times that day—once
the phone rang without being answered and the other time Cunningham’s neighbor
“Ron” answered.
Davis asserts that Williams’ trial testimony conflicted with her pretrial
deposition about the events of December 9, 1992. In her deposition, Williams
testified that she spoke to Davis on the phone when he called her around 10 or
10:30 a.m., and then when she attempted to call him back, she spoke to Ron once
and another time the phone rang and went unanswered. When asked if she “spoke
with [Davis] only one time,” Williams answered: “That’s when he called me.”
When asked if she had “any contact with Gwen or Toney during the remainder of
the day,” Williams answered: “Gwen. . . . She called me and told me to come to
the hospital, Caleasha was in critical condition.” After stating that she went to the
hospital and “stayed there all night,” Williams added:
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I stayed [at the hospital] all evening until about—it was pretty
late when I got home, but it was—no, it wasn’t too late because Toney
called me at my apartment from jail. And he called me twice, I think.
First time he called—somebody—he called someone’s home and they
had a three-way hookup and they hooked us up. And I—and that was
the only time I talked to Toney.
Williams stated that during this conversation she accused Davis of hurting the
victim, and he replied, “[S]omebody else did it, there was somebody else at that
apartment, another guy.”
Davis also relies on a memorandum written by prosecutor Stephen V.
Bledsoe. In that memorandum, Bledsoe wrote: “Later in the evening, [Williams]
received a telephone call at her home from the Defendant, who was calling from
the jail. The Defendant told the witness that he did not hurt Cale[a]sha and that
there was another guy at the apartment, that the Defendant had left to make a
telephone call . . . .”
Davis has not proven the first two prongs of Giglio. Both in her deposition
and at trial, Williams appears to have assumed that “day” referred to the daylight
hours of December 9, 1992, rather than the entire twenty-four hour period that was
December 9, 1992. “Day” is an ambiguous term. See Webster’s Third New
International Dictionary 578 (1993) (defining day as “the time of light or interval
between one night and the next: the time between sunrise and sunset or from dawn
to darkness” and as “the period of the earth’s rotation on its axis ordinarily divided
into 24 hours”). Moreover, in her deposition, Williams did not specify how late
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she returned home from the hospital and exactly when she received a call from
Davis. The record thus does not establish whether Davis’s call from jail occurred
late on December 9, 1992, or early on December 10, 1992. Bledsoe’s summary
that the call occurred “[l]ater in the evening” belies Davis’s claim that the State
knew precisely when the call was made. Like “day,” “evening” has multiple
meanings. See Webster’s Third New International Dictionary 787 (1993) (defining
evening as—among other definitions—“the part of the day from noon to midnight”
or “the period from sunset or from the evening meal until bedtime”).
In addition, any failure to clarify Williams’ testimony was harmless.
Testimony about Williams’ second phone conversation with Davis—even if it did
occur on December 9, 1992—would not have bolstered Davis’s credibility. The
jury would still be left with the impression—as explained below—that Davis’s
defense evolved after he had time to contemplate the situation.
Davis did not begin to assert that someone else harmed the victim until after
his conversations with the first responders and his interview with the investigating
detectives. Prior to speaking to Williams, Davis spoke to seven people in six
separate statements about what happened to the victim, without ever asserting that
Moore—or anyone else—was left alone with the victim. First, Moore testified that
when he arrived at the apartment, Davis told him that the child had choked on a
French fry and was having an asthma attack. Second, paramedic Wade testified
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that when he arrived on the scene, Davis told him that the victim was choking.
Third, Officer Phillips testified that once the victim was placed in the rescue unit,
he asked Davis what happened and Davis answered that the victim had choked on
a French fry and that when his friend arrived at the door, he sent his friend to call
911. Fourth, Cunningham testified that when she arrived at the hospital, Davis told
her “the same thing that Mr. Moore had told” her: the victim had choked on a
French fry and had an asthma attack. Fifth, Detective Hallam testified that he
spoke with Davis shortly after arriving at the hospital and that Davis informed him
that “he had given her some French fries for lunch and she had, apparently, choked
. . . and he had attempted to dislodge the French fry and give her CPR, but when
that didn’t work, then he had a friend of his who had arrived later, call 911.” Sixth
and seventh, Detective Hallam testified that he and Detective Hickman interviewed
Davis. During the interview, Davis stated that the victim “choked on a French fry,
he tried to giv[e] her CPR. When that didn’t work, he held her under the shower,
tried to revive her.” Detective Hallam further testified that during the interview,
Davis stated that Moore arrived while Davis was doing CPR and that—only after
the detectives specifically asked about the victim’s head injury—Davis explained
that he accidentally dropped her in the shower. Detective Hickman gave similar
testimony regarding the interview.
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The timing of Davis’s accusation that Moore harmed the child also does not
explain Davis’s testimony that when he returned to the apartment after leaving the
victim with Moore, “physically [the victim] didn’t look like anything was wrong
with her. She looked normal, except for she wasn’t breathing.” Testimony from
the medical personnel who treated the victim render Davis’s claim that the child
appeared uninjured patently implausible.
And finally, any testimony about the timing of the Moore defense does not
affect the implausibility of Davis’s explanation of why he did not immediately
implicate Moore. Davis implausibly testified that he promised not to inform law
enforcement about Moore’s presence—and thus risked implicating himself in the
murder—because Moore was afraid of being charged with drug possession.
In his second Giglio claim, Davis asserts that a pretrial deposition and a law
enforcement officer’s field notes demonstrate that witness Janet Cotton’s trial
testimony was false. Again, Davis did not demonstrate that the testimony was
false. As a result, the postconviction court did not err in denying relief.
At trial, Cotton testified that on December 9, 1992, her friend Celeste Wiley
came to Cotton’s apartment to wait until around 1:30 p.m. when Wiley’s son got
out of school. Cotton stated that “[a]round 12:00 o’clock” in the afternoon, “[w]e
heard a lot of child crying and a lot of thumping noise” coming from the victim’s
apartment that lasted for about thirty minutes. Cotton described the thumping as
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like “something was hitting the wall.” Cotton further testified that she heard a
“[v]ery loud” and “stern” “male voice” that she recognized as Davis’s, saying “[s]it
down.” Contrary to Davis’s initial brief, Cotton did not testify that the noises
sounded like “someone was being slammed against a wall.” Initial Brief of
Appellant at 34, Davis v. State, No. SC12-115 (Fla. Mar. 18, 2013). Cotton also
did not comment on whether or not Wiley heard a man’s voice.
In a pretrial deposition, Wiley testified that she was visiting her friend
Cotton at Cotton’s apartment—which was next door to the victim’s apartment—at
12 or 12:30 in the afternoon on December 8, 1992, the day before the murder.
Wiley testified that she heard “some noise—beating and crying, whining” and “a
lot of bumping around and banging.” She explained that the crying sounded like it
was coming from a child and that she did not hear an adult voice. In addition,
Davis attached to his postconviction motion a set of handwritten notes by an
unknown author that appear to be questions and answers from an interview with
Wiley. The first question asked Wiley to attempt to recall the events of Tuesday,
December 8, 1992. There is no response noted after this question. The second
question asks if Wiley had “an occasion to visit w/ Ms. Cotton at her apartment on
Seaboard Ave.?” There followed a series of questions and answers regarding
Wiley and Cotton hearing banging and a child crying from another apartment.
Then, on a separate sheet of paper, the following appears: “[Wed, Dec 9] W
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returned to Ms. Cotton’s apt, but after rescue & police had arrived.” Davis did not,
however, call any witness at the evidentiary hearing to authenticate the notes.
This record does not establish that Cotton’s trial testimony was false. Wiley
did not comment on December 9, 1992, in her deposition, and her statement that
she was at Cotton’s apartment on December 8, 1992, does not conflict with
Cotton’s testimony that Wiley was present on December 9, 1992. The
investigative note regarding Wiley’s whereabouts on December 9, 1992, also is not
proof that Cotton’s testimony was false. The note is vague and ambiguous. Even
assuming Wiley is the “W” referenced in the note, the meaning of the note is
unclear. The note states that W “returned” to Cotton’s apartment after the first
responders arrived, but it does not explain the duration of W’s absence. The note
does not exclude the possibility that Wiley could have been at the apartment
around noon, as Cotton testified, left the apartment—perhaps to retrieve her son
from school—and then returned later in the afternoon.
And even if Cotton’s testimony that Wiley was in her apartment on
December 9, 1992, was false, the State’s failure to correct the testimony was
harmless. As set out above, the State presented ample evidence that the victim was
severely beaten on December 9, 1992—regardless of whether she was also beaten
earlier in the week. In light of this evidence, there is no reasonable possibility that
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the portion of Cotton’s testimony about Wiley hearing noises affected the jury’s
guilty verdict or the trial court’s finding of HAC.
B. Ineffective Assistance of Counsel Claims
Davis argues that the postconviction court erred by denying several of his
claims of ineffective assistance of counsel. 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 so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S.
668 (1984). As 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. at 687. For the second prong,
“Strickland places the burden on the defendant, not the State, to show a ‘reasonable
probability’ that the result would have been different.” Wong v. Belmontes, 558
U.S. 15, 27 (2009) (quoting Strickland, 466 U.S. at 694). Strickland does not
“require a defendant to show ‘that counsel’s deficient conduct more likely than not
altered the outcome’ of his penalty proceeding, but rather that he establish ‘a
probability sufficient to undermine confidence in [that] outcome.’ ” Porter v.
McCollum, 558 U.S. 30, 44 (2009) (quoting Strickland, 466 U.S. at 693-94).
1. Dr. Edward Willey
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Davis contends that the postconviction court erred in denying his claim that
trial counsel was ineffective for failing to call Dr. Edward Willey as an expert
witness at trial. Davis asserts that Dr. Willey’s conclusion that the victim had not
been sexually battered would have caused the jury to have doubts about whether a
sexual battery occurred. Davis concludes that trial counsel’s decision not to call
Dr. Willey was based solely on a misunderstanding of the law, that the decision
prejudiced him at trial, and that but for counsel’s deficiency, the outcome would
have been different. The postconviction court concluded that Davis proved neither
deficiency nor prejudice. The postconviction court did not err.
At trial, the State presented four witnesses whose testimony tended to
establish that the victim had been sexually battered. Two of the witnesses were
first responders. Both testified that when they arrived at the scene, the victim was
nude from the waist down, and one—a paramedic—added that the victim was
bleeding from the vaginal canal. The other two witnesses were physicians who
examined the victim. Dr. J.M. Whitworth, who at that time was the Executive
Medical Director of Children’s Crisis Center and an Associate Professor of
Pediatrics at the University of Florida, examined the victim at the hospital while
she was still alive. He testified that the victim had two fresh hemorrhages on the
hymen consistent with penetration by an object. The other physician, Dr.
Bonifacio Floro, conducted the autopsy of the victim on December 11, 1992, while
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Dr. Whitworth observed. Both physicians testified that by the time of the autopsy,
the injuries to the victim’s hymen had disappeared. The doctors testified that they
would expect this phenomena over the roughly twenty-six hour span of time before
the postmortem examination because in human mucosal areas, such as the mouth
and vagina, there is a rich blood supply that helps injuries to heal quickly.
At the postconviction hearing, trial counsel testified that the decision not to
call Dr. Willey was strategic. Attorney Adams testified that he saw no way to
reconcile Dr. Willey’s contention that no sexual battery had occurred with the
evidence of the victim’s vaginal bleeding and injuries. He also testified that he felt
that Dr. Willey would likely not be viewed as credible on the witness stand.
Dr. Willey also testified at the postconviction hearing. Dr. Willey conceded
that his opinion regarding the victim’s hymen injuries relied on photographs and
not on an in-person examination. Despite being a forensic pathologist, not an
OB/GYN or pediatric physician, Dr. Willey opined that the victim’s injuries were
likely the result of irritation due to poor hygiene. Additionally, Dr. Willey
disagreed with the State’s trial witnesses’ opinions that injuries to the victim’s
hymen could have healed in roughly twenty-six hours, especially since the victim
had been brain dead for a portion of that time. Dr. Willey cited several scholarly
articles regarding the healing time necessary for genital injuries to support this
assertion.
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In rebuttal, the State called Dr. Randall Curtis Alexander, a professor of
pediatrics and the statewide Medical Director for the Child Protection Teams in
Florida. Dr. Alexander testified that he agreed with Dr. Whitworth’s conclusion
that the injuries described were indicative of sexual battery and further opined that
physical injury in a child sexual abuse case is not common. Dr. Alexander also
agreed with Dr. Whitworth’s conclusion that the hemorrhages had healed by the
time the autopsy was conducted. Dr. Alexander explained that “flame-shaped”
hemorrhages—like the ones found on the victim—are very thin superficial injuries
that are not the type to last for several days, especially in a quick healing area of
the body like the vagina.
Dr. Alexander disagreed with Dr. Willey’s opinion that no sexual battery
occurred for several reasons. First, Dr. Alexander explained that the photographs
of the victim were not of sufficient quality to reveal details that would be evident at
an in-person examination. Second, Dr. Alexander distinguished the scholarly
articles relied on by Dr. Willey to show that the injuries could not have healed in
twenty-six hours. Dr. Alexander explained that the articles primarily addressed
lacerations, not superficial hemorrhages. Third, Dr. Alexander criticized Dr.
Willey’s claim that healing would have stopped once the victim was brain dead.
Dr. Alexander testified that healing occurs so long as there is a heartbeat and blood
pressure, or else transplants would not be possible.
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Davis does not argue on appeal that trial counsel erred by not investigating
the medical evidence related to the sexual battery charge or by not consulting
another expert. He argues only that trial counsel was ineffective for not presenting
Dr. Willey. The postconviction court had discretion to credit the State’s experts’
opinions and to also conclude that Dr. Willey would not be a credible witness.
This Court has held that “[s]o long as its decisions are supported by competent,
substantial evidence, this Court will not substitute its judgment for that of the trial
court on questions of fact and, likewise, on the credibility of the witnesses and the
weight to be given to evidence by the trial court.” Windom v. State, 886 So. 2d
915, 921 (Fla. 2004) (quoting Porter v. State, 788 So. 2d 917, 923 (Fla. 2001)).
Here, competent, substantial evidence supports the postconviction court’s
determination that Dr. Willey was not credible. Dr. Willey based his conclusions
on photographs rather than in-person examinations and admitted that he had no
clinical experience in pediatrics, gynecology, or obstetrics. Additionally, the
articles cited by Dr. Willey to argue that the victim’s injuries could not have healed
in twenty-six hours pertained to severe genital lacerations rather than superficial
hemorrhages. Given this record, the postconviction court did not err in denying
relief.
2. Theory of Defense
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Davis argues that the postconviction court erred by denying his claim that
trial counsel was ineffective for failing to present—as Davis’s primary defense—
the theory that Moore was responsible for the victim’s death. The postconviction
court correctly concluded that this claim was untimely and without merit.
In May 1999, Davis filed a shell motion for postconviction relief, which
included general statements of law regarding counsel’s obligations, but did not
challenge the particular defense strategy employed by attorney Adams. Despite
filing an amended motion in May 2004, Davis did not amend his postconviction
motion to include a claim asserting that trial counsel performed ineffectively by
having argued an accidental death theory until July 2006. Despite having roughly
five years between the filing of Davis’s initial motion and Davis’s amended
motion, postconviction defense counsel did not attempt to add the claim until 2006.
In light of the lengthy opportunity that postconviction counsel had to investigate
Davis’s case and amend the postconviction motion, the postconviction court did
not abuse its discretion by determining that Davis’s claim about defense counsel’s
theory was untimely. See, e.g., Huff v. State, 762 So. 2d 476, 481-82 (Fla. 2000)
(concluding postconviction court did not abuse its discretion by denying an
amendment that raised new issues where Huff had “been given ample opportunities
in the subsequent years to prepare and amend his rule 3.850 motion”).
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Davis’s claim also fails on the merits. Attorney Adams made a reasonable
strategic decision to argue a reasonable doubt defense rather than arguing that
Moore committed the crimes.
At the postconviction evidentiary hearing, attorney Adams testified that
when preparing for trial, he thought it would be a “problem” for Davis to testify
and assert that Moore harmed the victim because that testimony would “create[]
inconsistencies” with Davis’s initial statements to law enforcement officers.
Adams testified that he advised Davis not to testify because he would be cross-
examined about those inconsistencies. The trial record confirms that Adams made
a tactical decision not to raise the Moore defense. After the defense rested its case
and the State called Williams as a rebuttal witness, the trial court gave attorney
Adams an opportunity to make a record about Davis’s decision not to testify. At
that point, a discussion between the trial court, Adams, and Davis ensued. Davis
asserted that he wished to testify and that he had additional questions that he
wanted Adams to ask witnesses Moore and Williams. Davis explained that Adams
“wants one defense, and I want another.” Attorney Adams, in turn, stated that he
had “tried to advise” his client that he makes “certain individual decisions” based
on his experience in the courtroom and that there are “rules of procedure and the
rules of evidence” to consider. Adams further stated: “I’m not going to ask every
question that a client gives me, it’s not in my plans, not my theory of the case.”
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Ultimately, Adams reopened the case, called Moore as a witness, and asked the
questions proffered on the record by Davis. Davis then testified, which was, as
Adams described the decision, “totally against my advice as his attorney.”
Attorney Adams’ decision to avoid raising the Moore defense was
reasonable. This Court has held that trial counsel acts reasonably by deciding not
to raise an incredible defense, see, e.g., Hutchinson v. State, 17 So. 3d 696, 701-02
(Fla. 2009); Dailey v. State, 965 So. 2d 38, 47 (Fla. 2007), and in this case, the
totality of the circumstances shows that trial counsel had reason to believe that
Davis would not make a credible witness.
Trial counsel correctly concluded that if Davis took the stand, he would be
cross-examined about his prior statements. See Evans v. State, 838 So. 2d 1090,
1095 (Fla. 2002) (“Evans took the stand in his own defense, and by doing so, he
placed his credibility at issue. Accordingly, the prosecution was entitled to
highlight inconsistencies between Evans’ testimony and other evidence in the case
and to expose contradictions and improbabilities in Evans’ version of events.”).
Moreover, the record supports trial counsel’s determination that such cross-
examination would be harmful to the defense. As set out above, the State
presented evidence establishing that on December 9, 1992, Davis spoke to seven
people about what happened to the victim—without telling any of them that Moore
was left alone with the child. All of these statements occurred before Davis told
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Williams that “somebody else” harmed the victim. In addition, Davis’s testimony
that the victim “didn’t look like anything was wrong with her” was not consistent
with the first responders’ descriptions of the victim’s condition, and Davis’s
explanation for not immediately disclosing Moore’s involvement was incredulous.
Given this record, it was reasonable for attorney Adams to conclude that the
jury would not believe Davis’s claim that Moore caused the victim’s injuries. To
the contrary, the evidence created the impression that Davis manufactured his
defense of blaming Moore as the investigation progressed. Because attorney
Adams made a reasonable strategic decision not to present the Moore defense, the
postconviction court did not err in denying Davis’s claim.
3. Cross-Examination
Davis contends that his trial counsel insufficiently cross-examined witnesses
Cotton, Williams, Cunningham, and Moore. The postconviction court did not err
in denying relief on these claims.
First, Davis asserts that because Cotton’s trial testimony differed from what
she told Detective C.L. Conn during the murder investigation, trial counsel should
have attempted to impeach Cotton about what time she heard noises on December
9, 1992; whether she heard a male voice that she knew to be Davis’s; whether she
was concerned about the noises she heard; and whether her friend Wiley was in the
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apartment that day. Davis has failed to show that trial counsel could have
impeached Cotton on these points.
Cotton testified at trial that on December 9, 1992, she began to hear a child
crying at around 12 in the afternoon and that she heard a male voice, which she
recognized as Davis’s voice, say “[s]it down.” In her deposition, Detective Conn
testified that Cotton had stated that she heard “a male voice say sit down”—
without specifying who the voice belonged to—and a child crying “sometime
between 11:00 and noon, she wasn’t specific on the time.” The fact that Detective
Conn’s recollection of Cotton’s answers was less specific than Cotton’s trial
testimony does not make the deposition and trial testimony inconsistent. Thus,
Davis did not demonstrate that trial counsel—through additional cross-examination
of Cotton or by calling Detective Conn—could have impeached witness Cotton
about the man’s voice and the timing of the child’s crying.
Davis also fails to demonstrate an inconsistency regarding Cotton’s reaction
to the man’s voice and the crying child. At trial, Cotton testified that it was not
unusual for her to hear an adult speaking to the children next door. In her
deposition, Detective Conn stated that after hearing the child crying and the male
voice, Cotton “didn’t think anything else of it.” Based on this record, Davis did
not demonstrate that Cotton’s trial testimony expressed greater concern than
Cotton expressed to Detective Conn. Thus, Davis again failed to demonstrate that
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defense counsel could have impeached Cotton by cross-examining her about her
statements to Detective Conn or by calling Detective Conn to testify about her
interview with Cotton.
As for whether Wiley was at Cotton’s apartment on December 9, 1992,
Davis has not established how defense counsel could have impeached Cotton on
this point. Davis did not call any witness at the evidentiary hearing who rebutted
Cotton’s claim that Wiley was in the apartment on December 9, 1992, or who
could explain the meaning of the unauthenticated investigative note that may have
been about Wiley. Wiley’s deposition is silent regarding December 9, 1992, and
Detective Conn’s deposition does not discuss Wiley. Accordingly, Davis has not
shown that defense counsel erred by not attempting to impeach Cotton on the
subject of the timing of Wiley’s visit on December 9, 1992.
Second, Davis asserts that defense counsel should have used Williams’
deposition to impeach her testimony that she spoke with Davis on the phone only
once on December 9, 1992. This claim is without merit. As discussed above,
Williams’ deposition does not establish that she and Davis spoke twice on
December 9, 1992. Because the deposition and trial testimony are not inconsistent,
the deposition could not have been used as a prior inconsistent statement to
impeach Williams under section 90.801(2)(a), Florida Statutes (1995). And while
defense counsel could have called Williams as a defense witness, defense counsel
- 31 -
made a reasonable strategic decision not to raise the Moore defense. Accordingly,
Davis has not proven that trial counsel was deficient. See Strickland, 466 U.S. at
689 (“[T]he defendant must overcome the presumption that, under the
circumstances, the challenged action “might be considered sound trial strategy.’ ”
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955))).
Third, Davis contends that defense counsel should have asked Cunningham
if Davis made statements to her on the day of his arrest, or shortly thereafter, in
which he blamed Moore for the victim’s injuries. Davis asserts that a State
discovery exhibit outlining Cunningham’s likely testimony establishes that trial
counsel should have known that such testimony could be elicited from
Cunningham. Again, this claim is without merit because defense counsel made a
reasonable strategic decision not to raise the Moore defense. See Strickland, 466
U.S. at 689.
Fourth, Davis asserts that trial counsel was ineffective for not cross-
examining Moore regarding whether, prior to knocking on the door of the
apartment, Moore saw Davis administering CPR to the victim. This claim is
conclusively refuted by the record. After initially resting, attorney Adams—at
Davis’s request—reopened the defense’s case and called Moore. At that time,
defense counsel did question Moore “as to when and how Moore was able to
witness Davis giving the victim CPR prior to calling 911, and why this fact was
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never mentioned in his previous recitation of [the] event.” Initial Brief of
Appellant at 68, Davis v. State, No. SC12-115 (Fla. Mar. 18, 2013). Davis offers
no reason why it was essential for trial counsel to raise this issue during cross-
examination rather than later in the trial when Moore was called as a defense
witness. Accordingly, Davis has failed to prove that trial counsel’s performance
was deficient.
4. Prosecutorial Misconduct
Davis contends that the postconviction court erred in denying his claim that
trial counsel was ineffective for failing to object to misconduct by the prosecution.
Davis is not entitled to relief. Davis has not demonstrated deficiency as to trial
counsel’s failure to object to the prosecutor’s arguments based on Williams’
testimony or the prosecutor’s comments about the Moore defense. As for the
prosecutor’s brief appeal to the jurors’ emotions, Davis has not demonstrated that
he was prejudiced by trial counsel’s lack of objection.
On appeal, Davis contends that trial counsel should have objected to the
prosecutor’s reliance on Williams’ false testimony. In addition, Davis contends
that trial counsel should have objected to a question and several arguments
regarding the Moore defense. Specifically, during cross-examination, the
prosecutor asked Davis: “And now you come into this courtroom and you tell the
members of this jury for the very first time that Thomas Moore must have
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committed this very brutal crime?” And then on several occasions during closing
argument, the prosecutor argued that Davis’s initial statements regarding what
happened to the victim differed from his trial testimony given “two-and-half years”
later. The prosecutor’s arguments and question were not objectionable.
And as discussed above, Davis has not demonstrated that Williams’
testimony was false. Moreover, Davis does not contend that the prosecutor
misrepresented Williams’ testimony during closing arguments. “The proper
exercise of closing argument is to review the evidence.” Bertolotti v. State, 476
So. 2d 130, 134 (Fla. 1985). As a result, Davis has not established that trial
counsel erred by not objecting to the prosecutor’s arguments based on Williams’
testimony.
Regarding the prosecutor’s comments about the timing of the Moore
defense, Davis relies on Davis v. Zant, 36 F.3d 1538 (11th Cir. 1994), and Jackson
v. State, 933 So. 2d 1180 (Fla. 4th DCA 2006). In Zant, the prosecutor responded
to the defendant’s statement that codefendant Underwood had confessed by
announcing to the jury that the defendant’s statement was “not true”—when it
was—and argued that the defendant’s testimony that Underwood was guilty was
the “first time in living memory” that the defendant had told that defense to
anyone. 36 F.3d at 1546-47. The prosecutor also described the defendant’s
defense as “last minute stuff” and a “first time defense,” and suggested to the jury
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that defense counsel did not give an opening statement setting out defenses
because “[t]hey hadn’t thought them up yet.” Id. at 1547-48. The Eleventh Circuit
Court of Appeals reasoned that because the State had known about the defendant’s
theory for approximately six months before trial, the comments were error. The
Eleventh Circuit stated: “Little time and no discussion is necessary to conclude that
it is improper for a prosecutor to use misstatements and falsehoods.” Id. at 1548.
In Jackson, the prosecutor repeatedly questioned the defendant about why he
had not raised his chain-of-custody defense prior to trial:
MR. WELLS: You were arrested May fourteenth, two
thousand four, weren’t you?
DANNY JACKSON: Yes, sir.
MR. WELLS: This is the first time you’re claiming that, uh,
the [eyeglasses] case that was, uh, seized, uh, is not your case. Isn’t
that true?
DANNY JACKSON: I never claimed the glass case—
MR. WELLS: You’re saying you never saw that glass case
before, it’s not yours.
DANNY JACKSON: That one is not mine.
MR. WELLS: Are you saying there’s a, a different case that
you had?
DANNY JACKSON: The, the case that was in my pocket was
a maroon—
MR. WELLS: Is it—
DANNY JACKSON: —case, it was almost brand new.
MR. WELLS: Alright, so you’re talking about this brand new
maroon case, uh, and this is the first time you, you’re claiming that
that case that was seized is not yours. Isn’t that true?
DANNY JACKSON: The, the question was never brought to
my attention before.
MR. WELLS: Well, this case has been pending since May
fourteenth, two thousand four.
DANNY JACKSON: Yes, sir.
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MR. WELLS: Okay. You’ve had an attorney, uh, representing
you that, uh, close to that time through today, haven’t you?
DANNY JACKSON: I’ve had two.
MR. WELLS: Okay, you’ve had two attorneys and this is the
first time on the eve of trial that you’re now raising this issue about
your glass case.
Jackson, 933 So. 2d at 1181. The prosecutor then addressed the newness of
Jackson’s defense several times in closing, stating in part:
You think that the defense attorney would, would like to cross
examine the witness about, uh, where the evidence was, how he came
about to have the glasses case. I submit to you that that defendant just
made it up right before he decided to testify because if it
happ[ened]—it was an issue before he came into court today, it would
have been raised, it would have been raised by one of his two prior
attorneys and it would have been raised at some point prior to this, but
no. It was raised at the eleventh hour right before he realized he’s
getting ready to go in flames, uh, he changed his test[imony]—well,
he decided to testify to a set of facts, uh, and, and put the officer’s
credibility at issue.
Id. at 1182. The Fourth District Court of Appeal determined that the prosecutor’s
questioning and argument were improper because they erroneously suggested to
the jury that the defendant had a burden to raise a defense before trial. Id. at 1183.
Davis misreads Zant and Jackson to stand for the proposition that the State
may never comment on the timing of a defendant’s asserted defense. Rather than
curtailing a prosecutor’s discretion to make arguments based on the evidence
presented at trial, Zant and Jackson instead addressed claims that a prosecutor
intentionally misrepresented the facts of the case or mislead the jury regarding the
- 36 -
legal issue of a defendant’s lack of burden of proof in a criminal trial. Davis
cannot establish that such egregious misconduct occurred in his case.
Unlike the prosecutors in Zant and Jackson, the prosecutor in Davis’s case
did not intentionally misrepresent facts known to the prosecution or suggest that
Davis had violated a procedural rule by not presenting his defense before trial. The
prosecutor also did not suggest to the jury that Davis had never raised the defense
to anyone at any time. Instead, the prosecutor commented on the fact that Davis’s
testimony was not consistent with the statements he had made two-and-a-half years
prior and that before Davis took the stand, the defense had not presented to the jury
any evidence or argument supporting the theory that Moore harmed the victim. By
deciding to testify and changing the defense theory mid-trial, Davis put his
credibility at issue and opened the door to the prosecutor’s accurate observation
that Davis had not previously raised the Moore defense during trial. Once Davis
testified on direct examination that Moore committed the charged offenses and
about why Davis did not immediately implicate Moore, the prosecutor was entitled
to cross-examine Davis about the timing of his allegations, Evans, 838 So. 2d at
1095, and to use closing argument to highlight the inconsistencies and weaknesses
in Davis’s testimony, Bertolotti, 476 So. 2d at 134.
Because the prosecutor’s question was not improper, defense counsel cannot
be ineffective for failing to object to the question. See Darling v. State, 966 So. 2d
- 37 -
366, 383 (Fla. 2007) (holding counsel was not ineffective for failing to raise a
meritless objection).
Next, Davis contends that trial counsel should have objected to the following
statement during the State’s penalty phase closing argument:
There’s nothing, Ladies and Gentlemen, that you do today
that’s going to ease the pain of the mother, or her children, Ashley and
Juan. They’re going to live with that. But one day Ashley and Juan
are going to grow up and they’re going to want to know what
happened to Caleasha, and they’re going to know what justice was
done.
This Court and the Third District Court of Appeal have concluded that
similar closing arguments were improper attempts to elicit the jury’s sympathy.
See, e.g., Johnson v. State, 442 So. 2d 185, 188 (Fla. 1983) (“Another family,
perhaps you haven’t become closely associated with, that is the [victim’s] family,
will be facing this holiday season one short.”); Edwards v. State, 428 So. 2d 357,
359 (Fla. 3d DCA 1983) (“I ask you for justice both on behalf of myself and the
people of the State of Florida, also on behalf of [victim’s] wife and children.”).
Given these precedents, Davis’s trial counsel would have had a legal basis to
object to the argument that the victim’s siblings would want to know what justice
was imposed for the victim’s murder.
Davis has not, however, demonstrated that he was prejudiced by trial
counsel’s lack of objection. In Johnson, this Court concluded that the preserved
objection to the argument alluding to the victim’s family did not require reversal
- 38 -
where it was a “single comment made at the sentencing portion of the trial in
response to the testimony of the defendant’s relatives in his behalf.” 442 So. 2d at
188; see also Hudson v. State, 992 So. 2d 96, 113 (Fla. 2008) (“We do not consider
this single isolated reference to the mental anguish of Peller’s family ‘so
prejudicial as to taint the jury’s recommended sentence’ and therefore rise to the
level of fundamental error.”) (quoting Walls v. State, 926 So. 2d 1156, 1176 (Fla.
2006)). Here too, the reference to the victim’s family was an isolated comment.
The prosecutor did not dwell on the victim’s family but primarily focused the
closing argument on the question of whether the death sentence was appropriate in
light of the circumstances of the offense and the lack of mitigating evidence.
Moreover, the emotional appeal expressed by this comment was minimal.
The prosecutor argued that someday the siblings will wonder “what justice” was
done. This comment can be read to suggest that either a life or a death
recommendation would constitute justice. Cf. Fennie v. State, 855 So. 2d 597, 610
(Fla. 2003) (concluding that prosecutor’s comments did not violate preclusion
against arguments encouraging jurors to “do their duty” or to “send a message”
where there was “no evidence that the prosecutor expressly exhorted the jury to
return a verdict of death”). And finally, the trial court did not express sympathy
for the victim’s family in reaching its sentencing decision.
- 39 -
Given the ambiguous nature of the isolated comment, any impropriety in the
argument does not undermine confidence in the jury’s recommendation or the
sentence. As a result, the postconviction court did not err by denying relief on this
claim.
5. Mitigation
Davis argues on appeal that the postconviction court erred by denying
several portions of his claim relating to the presentation of mitigation. Davis
contends that trial counsel erred by failing to call family members such as Felicia
Cotman and Latoya Johnson Davis to testify about Davis’s childhood, failing to
present mental health expert Dr. Harry Krop, and by arguing a “non-violence” or
“nice-guy” defense theory. Initial Brief of Appellant at 84, 90, Davis v. State, No.
SC12-115 (Fla. Mar. 18, 2013). The postconviction court did not err in rejecting
Davis’s argument.
a. Felicia Cotman and Latoya Johnson Davis
At the penalty phase, defense counsel called Davis’s parents, Clarice Lavern
Davis and Alvin P. Johnson. Clarice testified that although she and Davis’s father
never married, they raised Davis together and Davis had a normal childhood in
Richmond, Virginia. She explained that Davis was an only child—born when she
was eighteen—and that both she and Davis’s father worked outside the home when
Davis was a child. Clarice testified that Davis sometimes skipped school but was
- 40 -
otherwise a good student. She further testified that Davis attended church, enjoyed
sports, had a talent for writing songs and poetry, and performed his songs. She
stated that Davis got along well with everyone, had many friends, abstained from
drugs, and cared for his children. Alvin testified that he initially helped provide a
stable home for his son in Virginia, that Davis lived with him in Florida after
leaving Clarice’s home, and that he never had any trouble with Davis. Alvin stated
that Davis did not use drugs and that everyone in the family loved him.
In his postconviction motion, Davis alleged that trial counsel should have
called additional relatives during the penalty phase who could have testified to the
true circumstances of his childhood and thereby dispelled the impression that
Davis had been given every opportunity to grow up to be a law-abiding citizen. In
support of this allegation, Davis called two of his first cousins to testify at the
postconviction evidentiary hearing.
Felicia Cotman testified that as children, she and Davis lived about fifteen
minutes apart and often stayed at each other’s homes on the weekends. She stated
that Davis’s father worked all week as a truck driver and that his mother
sometimes worked, resulting in Davis being left alone frequently. Cotman
described Davis as a creative but rambunctious and spoiled child, who sometimes
seemed sad, but who did not drink or use drugs. Cotman described Davis’s
grandmother as a nurturing figure but explained that his parents “part[ied]” a lot—
- 41 -
including using marijuana and alcohol—even when Davis was in the house.
Cotman testified that Davis’s parents eventually separated and that for a while after
the separation, Davis lived with his mother and her boyfriend Mike. Although she
did not personally witness any abuse, Cotman heard that Mike physically abused
Davis’s mother during the time that Davis lived with them. Cotman further
testified that after Davis’s trial, his father died from alcohol-related causes.
Cotman was contacted by an investigator after Davis’s conviction and would have
been willing to testify at the penalty phase if asked.
Latoya Johnson Davis gave similar testimony. Latoya explained that she
spent much of her childhood at her grandmother’s house and that Davis also
frequently stayed with this grandmother and attended church with his extended
family. She described Davis as a spoiled, fun person who loved music and who
was like a good older brother to her. Latoya testified that Davis was close to his
parents, even though they worked “all the time” and left Davis “mainly to fend for
himself.” Latoya stated that Davis’s parents often had parties where alcohol and
marijuana were used and that Davis’s father, a Vietnam veteran, died from alcohol-
related issues. Latoya testified that Davis was “devastated” when his parents broke
up when he was a teenager and that she had heard that his mother’s subsequent
boyfriend physically abused her when Davis was living with the couple. Latoya
- 42 -
explained that she was contacted by an investigator after Davis’s conviction and
would have been willing to travel to Florida to testify on Davis’s behalf.
Davis failed to establish that trial counsel’s investigation was deficient. This
is not a case in which defense counsel failed to investigate potential penalty phase
witnesses. Both cousins testified that they were contacted by a defense
investigator. While Davis contends that trial counsel erred by not contacting the
cousins until after Davis’s conviction, this allegation of error—standing alone—is
insufficient to establish deficiency. These witnesses were relevant to the penalty
phase, not the guilt phase.
Davis also failed to establish that he was prejudiced by trial counsel’s
decision not to call Davis’s cousins. The jury was aware that Davis’s young
parents worked while he was a child, that they eventually separated, and that Davis
was generally a well-behaved child with musical talent. Thus, Davis’s cousins
would have added only two new aspects to the mitigation presentation: (1) Davis’s
parents hosted parties involving alcohol and marijuana when Davis was a child;
and (2) when he was a teenager, Davis may have observed his mother being
physically abused. Davis had not demonstrated that his cousins’ testimony
undermines confidence in the jury’s sentencing recommendation or the trial court’s
decision to follow that recommendation. It is not plausible that the evidence about
the parties that Davis’s parents hosted or speculation that Davis may have observed
- 43 -
his mother being abused would have caused the jury to find significantly more
mitigation or would have caused the trial court to give more than “some weight” to
the factor of Davis’s background. Davis, 703 So. 2d at 1057.
b. Dr. Harry Krop
Next, the postconviction court did not err in denying the portion of Davis’s
ineffective assistance of counsel claim related to Dr. Krop. Attorney Adams
testified at the evidentiary hearing that early in the investigation of Davis’s case,
Adams consulted clinical psychologist Dr. Krop. He asked Dr. Krop to evaluate
Davis initially for any competency or sanity issues and later for mitigation
purposes. Adams explained that he decided not to call Dr. Krop due to concern
that the State would ask Dr. Krop about his psychosexual evaluation of Davis and
about Davis’s behavior while incarcerated. Attorney Adams’ decision not to call
Dr. Krop is also recorded in the trial transcript. Attorney Adams informed the trial
court that “after what Dr. Krop told me and we had a discussion, I decided not to
use him.”
The record and this Court’s precedent establish that defense counsel’s
strategic decision was reasonable. In his pretrial deposition, Dr. Krop testified that
he examined Davis on November 24, 1993, and on May 31, 1995. Dr. Krop
reported that Davis was competent, showed no evidence of insanity, suffered from
“slight depression” but no other mental illnesses or personality disorders, tested in
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the low average to average range of intelligence, and demonstrated no cognitive
deficits. Although Dr. Krop concluded that without more information, he “would
not be able to comment with regard to any psychosexual disorder,” Dr. Krop
testified that he was aware of two past allegations of sexual misconduct with a
minor and that Davis reported that he had been ordered to participate in
psychosexual counseling as a condition of a prior offense. Similarly, Dr. Krop
stated that he would need more information before he could offer any opinion
about Davis’s behavior as an inmate but noted that Davis reported that he had been
twice accused of assault and battery on a law enforcement officer while
incarcerated. Overall, Dr. Krop explained that if he were called to testify during
the penalty phase, he would inform the jury that Davis “does not suffer from any
kind of mental illness” or “any kind of significant psychological problem” and that
because Davis denied committing the murder, sexual battery, and child abuse, Dr.
Krop would not be able to “comment on any kind of mental state at the time of the
offense.”
The instant claim is similar to an issue raised in Everett v. State, 54 So. 3d
464 (Fla. 2010). In that case, this Court concluded that defense counsel made a
reasonable strategic decision not to call a mental health expert who had opined that
“Everett demonstrated no signs of mental retardation or of a major mental illness”
because trial counsel could reasonably determine that such “testimony was not
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favorable to Everett’s case.” Id. at 482; see also Davis v. State, 928 So. 2d 1089,
1111-12 (Fla. 2005) (concluding that trial counsel acted reasonably by not calling
mental health expert who would have testified that defendant was violent but
lacked any psychosis or any major mental problems). In Davis’s case, Dr. Krop
did not conclude that Davis suffered from any emotional, psychological, or
neurological condition that could be argued to be a mitigating factor relevant to his
behavior at the time of the offenses. Dr. Krop’s deposition demonstrates that Dr.
Krop would not have provided helpful testimony. As a result, Davis has not
proven that trial counsel erred by not calling Dr. Krop.
c. “Non-Violence” or “Nice-Guy” Defense Theory
In the third part of this appellate claim, Davis asserts that trial counsel erred
by arguing “ ‘non-violence’ as a recurring mitigation theme” and presenting
evidence that Davis was a “nice guy” because this theme allowed the State to
highlight the violent nature of the crimes for which he had been convicted and to
question defense witnesses about Davis’s criminal history. Initial Brief of
Appellant at 84, 90, Davis v. State, No. SC12-115 (Fla. Mar. 18, 2013).
Davis’s suggestion that defense counsel could have prevented the State from
arguing during the penalty phase that the murder and sexual battery were violent
crimes is without merit. These arguments were properly directed at the
applicability of the HAC aggravating factor, and thus admissible under section
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921.141(5)(h), Florida Statutes (1995). Counsel cannot be deemed ineffective for
failing to make a meritless objection. Darling, 966 So. 2d at 383. As for Davis’s
past criminal offenses, the trial court and the jury heard that Davis had been
convicted of three felonies because Davis—against trial counsel’s advice—decided
to testify during the guilt phase. Once Davis took the stand, the State was entitled
to inquire about his criminal convictions, as those convictions were relevant to his
credibility. See § 90.610(1), Fla. Stat. (1995). Because Davis testified against
counsel’s advice, it was not defense counsel’s error that resulted in the admission
of evidence of Davis’s convictions.
6. Jury’s Role
In his postconviction motion, Davis asserted that Florida’s standard jury
instructions violate Caldwell v. Mississippi, 472 U.S. 320 (1985). Unlike in his
appellate brief, Davis did not argue that trial counsel was ineffective for failing to
object to one of the trial court’s guilt phase jury instructions and to a portion of the
prosecutor’s closing argument. As a result, Davis’s ineffective assistance of
counsel claim is not preserved for review. See Hutchinson v. State, 17 So. 3d 696,
703 (Fla. 2009).
In addition, Davis’s ineffective assistance of counsel claim is without merit.
Trial counsel cannot be deficient for not objecting to the instruction and the
arguments because they were not improper. Davis challenges the trial court’s guilt
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phase jury instruction: “Your duty is to determine if the defendant is guilty or not
guilty in accord with the law. It is the Judge’s job to determine what a proper
sentence would be if the defendant is guilty.” In Combs v. State, 525 So. 2d 853,
856 (Fla. 1988), this Court determined that a substantially similar instruction that
informed the jury that the “final decision as to what punishment should be imposed
rests solely with the judge of this court” did not violate Caldwell. Similarly, Davis
has not shown that the prosecutor improperly disparaged the role of the jury.
Davis challenges the prosecutor’s comment: “And let me emphasize to you, again,
yours will be an advisory sentence, a recommendation to the Court, because the
final decision rests with His Honor, Judge Davis, in this case.” But in Gonzalez v.
State, 990 So. 2d 1017, 1027 (Fla. 2008), this Court concluded that trial counsel
did not err by not objecting when “the prosecutor properly stated the role of the
jury as advisory as stated in the standard jury instructions.”
C. Cumulative Error
Davis is not entitled to relief as a result of cumulative error. Regarding the
guilt phase, Davis did not demonstrate that he was prejudiced by the State’s non-
disclosure of documents that may have been used to impeach witness Cunningham.
Similarly, Davis demonstrated only one potential penalty phase error—trial
counsel had a legal basis for objecting to the prosecutor’s closing argument
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regarding the victim’s siblings—which did not undermine confidence in Davis’s
sentences.
III. PETITION FOR WRIT OF HABEAS CORPUS
A. Ineffective Appellate Assistance Regarding Prosecutor’s Comments
In his first habeas claim, Davis argues that his appellate counsel was
ineffective for failing to challenge on direct appeal a question and several
arguments made by the prosecution. To preserve such a claim for appeal, trial
counsel must contemporaneously object to the prosecutor’s comments. Merck v.
State, 975 So. 2d 1054, 1061 (Fla. 2007). If trial counsel does not so object,
“[u]nobjected-to comments are grounds for reversal only if they rise to the level of
fundamental error. The Court considers the cumulative effect of objected-to and
unobjected-to comments when reviewing whether a defendant received a fair trial.”
Id. (citing Brooks v. State, 762 So. 2d 879, 898-99 (Fla. 2000)).
In this case, trial counsel did not object to the question or closing arguments
identified in Davis’s habeas petition. Thus, a claim on direct appeal based on those
comments would succeed only if the improper comments resulted in fundamental
error. See Downs v. Moore, 801 So. 2d 906, 910 (Fla. 2001). Fundamental error
is the type of error that “reaches down into the validity of the trial itself to the
extent that a verdict of guilty or jury recommendation of death could not have been
obtained without the assistance of the alleged error.” Card v. State, 803 So. 2d
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613, 622 (Fla. 2001). The few comments in this case that were improper did not
create fundamental error. As a result, Davis’s habeas claim is without merit.
1. Guilt Phase Question and Arguments
a. Great Big Conspiracy
On direct examination, Davis testified that he refused to sign a statement
during his interview with Detectives Hallam and Hickson of the Jacksonville
Sheriff’s Office because the detectives were “not going to write down what [he
was] saying, and [they were] writing down things [he was] actually not saying.”
Davis further testified that after he and the detectives disagreed about who was the
biological father of the victim, Davis “became skeptical about what Detective
Hickson was saying.” The State then cross-examined Davis. As part of that cross-
examination, the prosecutor asked: “This sounds like a great big conspiracy. Do
you have any idea where those detectives got that information?”
Relying on Wilson v. State, 880 So. 2d 1287 (Fla. 3d DCA 2004), Davis
asserts that appellate counsel should have challenged the prosecutor’s statement
that Davis’s testimony “sounds like a great big conspiracy.” In Wilson, the Third
District Court of Appeal concluded that it was error for a prosecutor to ask the
defendant if the State’s witnesses were conspiring against the defendant, reasoning
that an attorney may not ask a witness if another witness was lying and that the
term “conspiring” is functionally equivalent to “lying.” 880 So. 2d at 1289.
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Davis’s case is distinguishable from Wilson. Unlike the defendant in
Wilson, Davis broached the topic of the credibility of the State’s witnesses. Davis
testified on direct examination that the detectives did not accurately record the
interview and that he questioned Detective Hickson’s veracity. Once a defendant
chooses to take the stand and put his credibility at issue, the prosecution is entitled
to “expose contradictions and improbabilities in [the defendant’s] version of
events.” Evans, 838 So. 2d at 1095. As a result, once Davis raised the issue of his
opinion about the detectives’ credibility on direct examination, the State was
entitled to ask Davis to further explain his version of the interview with the
detectives and his confusion regarding the victim’s parentage. Davis’s objection to
the State’s question would be found to be without merit. As a result, Davis has not
demonstrated that appellate counsel erred by not raising the issue on appeal. See
Rutherford v. Moore, 774 So. 2d 637, 649 (Fla. 2000) (“Appellate counsel cannot
be considered ineffective for failing to raise issues on appeal that would have been
found to be meritless.”).
b. Burden Shifting
Davis asserts that on several occasions, the prosecutor improperly shifted the
burden of proof by suggesting to the jury that Davis had a burden prior to trial to
raise his defense that Moore committed the charged offenses. As discussed above
in the context of Davis’s related postconviction claim about the timing of the
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Moore defense, Davis misreads Zant and Jackson. Rather than curtailing a
prosecutor’s discretion to make arguments based on the evidence presented at trial,
Zant and Jackson instead addressed claims that a prosecutor intentionally
misrepresented the facts of the case or misled the jury regarding the legal issue of a
defendant’s lack of burden of proof in a criminal trial.
Neither the question and arguments challenged in Davis’s postconviction
appeal nor the additional comments identified in his habeas petition constitute such
prosecutorial misconduct. Based on the evidence presented at trial, the prosecutor
argued that the defense changed its theory mid-trial and that Davis’s testimony
about Moore’s alleged culpability was implausible. Once Davis testified on direct
examination that Moore committed the charged offenses and about why he did not
immediately implicate Moore, the prosecutor was entitled to cross-examine Davis
about the timing of his allegations and to use closing argument to highlight the
inconsistencies and weaknesses in his testimony.
Because Davis has not demonstrated that the prosecutor’s questions and
arguments about Davis’s failure to immediately implicate Moore were improper,
Davis has not demonstrated that appellate counsel erred by not challenging the
above questions and arguments. See Rutherford, 774 So. 2d at 649.
c. Denigration of Defense
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Next, Davis asserts that appellate counsel should have argued that the
prosecutor improperly denigrated Davis’s defense theory, expressed her personal
opinion about Davis’s credibility, and belittled Davis and his defense. Davis
objects to the prosecutor’s comments that Davis’s defense was “not true,” “lies,” or
“silly,” the prosecutor’s suggestions that his account of what happened to the
victim should be thrown “out the window,” “would not fly today,” “makes no
sense,” and has “changed,” and the prosecutor’s statements that the jury was
“supposed to believe” Davis’s defense, that Davis was “in la-la land,” and that
Davis “probably doesn’t have the same wisdom as counsel does.”
While a prosecutor may “not ridicule or otherwise improperly attack the
defense’s theory of the case,” a prosecutor is permitted to suggest to the jury that
“based on the evidence of the case, they should question the plausibility of the
defense’s theory.” Valentine v. State, 98 So. 3d 44, 55-56 (Fla. 2012). In
Valentine, this Court concluded that the prosecutor did not err by stating that the
defense wanted the jury to “somehow” believe the defense’s theory. Id. Also in
that case, this Court cited with approval its prior decision Craig v. State, 510 So. 2d
857, 865 (Fla. 1987), in which this Court determined that the prosecutor’s
description of the defendant’s testimony as “untruthful[]” or of the defendant as a
“liar” was proper argument based on the evidence of the case. Valentine, 98 So.
3d at 56. See also Davis v. State, 698 So. 2d 1182, 1190 (Fla. 1997) (concluding
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that prosecutor’s reference to defendant’s statements as “bald-faced lies” was not
improper).
Under Valentine and Craig, the majority of the prosecutor’s arguments were
permissible expressions of the inference that Davis’s statements were inconsistent
with the other evidence, not derisive comments offered merely to ridicule the
defense. Two comments, however, require closer examination. The prosecutor
began the rebuttal closing argument by stating: “Mr. Davis doesn’t have the same
wisdom as counsel does with respect to knowing that an unconscious child can’t
choke on a French fry, because by his very two statements he obviously didn’t
realize that.” Second, when explaining the jury instructions related to the
credibility of witnesses, the prosecutor stated that Davis was “in la-la land.” While
the first comment was based on the evidence presented at trial, both comments
were arguably “needless sarcasm.” Gore v. State, 719 So. 2d 1197, 1201 (Fla.
1998); see also Izquierdo v. State, 724 So. 2d 124, 125 (Fla. 3d DCA 1998)
(concluding reference to a defense as a “pathetic fantasy” was improper).
But even if improper, these comments do not constitute fundamental error—
that is, error that “reaches down into the validity of the trial itself to the extent that
a verdict of guilty . . . could not have been obtained without the assistance of the
alleged error.” Card, 803 So. 2d at 622. The comments are less severe in degree to
the guilt phase comments considered in Braddy v. State, 111 So. 3d 810 (Fla.
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2012), cert. denied, 134 S. Ct. 275 (2013). In that case, this Court determined that
comments denigrating the defense, suggesting that conviction of a lesser included
offense would be a “miscarriage of justice,” and arguably making a golden rule
argument—considered cumulatively—“did not deprive Braddy of a fair trial.”
This Court reasoned that the comments “did not go to the heart of the case” and
were “not of such a nature as to cause the jury to convict Braddy against the weight
of the evidence.” 111 So. 2d at 843-44. Here too, the comments were not critical
to the jury’s verdict. Indeed, in the context of Davis’s shifting story, the comment
added nothing to the discrediting of Davis.
d. Davis’s Veracity
Davis contends that appellate counsel should have argued that the following
comment improperly suggested that the jury should convict Davis if the jury
concluded that Davis lied during his testimony:
But you also should consider, when you’re thinking about
lesser included offenses, Toney Davis took the witness stand and he’s
not telling you he didn’t commit first degree murder. I committed
second, or I committed manslaughter. He’s telling you he didn’t do
anything. He is telling you your choice is not guilty, if you believe his
testimony from the witness stand.
And when you go back there you’re going to be given three
verdict forms. . . . What’s so important about the verdict form is what
I just described to you about how there’s lesser included offenses
underneath. . . .
So you’re going to have them written out there. And just
remember, Toney Davis says, I’m not guilty.
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“[I]t is error for a prosecutor to make statements that shift the burden of
proof and invite the jury to convict the defendant for some reason other than that
the State has proved its case beyond a reasonable doubt.” Gore, 719 So. 2d at
1200. An argument that the jury may acquit the defendant if and only if the jury
believes that the defendant is telling the truth is likewise a misstatement of Florida
law. See Northard v. State, 675 So. 2d 652, 653 (Fla. 4th DCA 1996) (concluding
that argument that “in order to find [the defendant] not guilty you’re going to have
to believe that the defendant was telling the truth” was improper). In this case, the
prosecutor did not make either of these types of improper argument. The
prosecutor pointed out that the State and defense both sought an all-or-nothing
verdict—that neither side asserted that Davis was guilty of a lesser included
offense. The prosecutor did not argue that disbelief of Davis’s account was
sufficient for a conviction or that belief in Davis’s account was necessary for an
acquittal. Because Davis has not demonstrated that the prosecutor’s argument was
improper—much less, that it constituted fundamental error—he has not shown that
appellate counsel was deficient. See Rutherford, 774 So. 2d at 649.
e. Arguments from Law Enforcement Testimony
Davis contends that appellate counsel should have challenged two arguments
during the prosecution’s closing because the arguments created an improper
impression that Captain Wade and Detective Hallam did not believe that Davis was
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truthful. Again, Davis’s ineffective assistance of appellate counsel claim is
without merit.
First, Davis challenges the following portion of the closing argument, in
which the prosecutor summarized Captain Wade’s testimony:
Captain Wade testified that when he arrived as the emergency medical
technician, he came into contact with that man right there, he was
loud, abrupt, agitated and defensive. He kept asking him questions,
because the answers didn’t make sense to him. He asked him, after
seeing the child [lying] face down on the living room floor
unconscious and lifeless, what happened?
Man said he gave him his version of what happened, he didn’t
make sense. [Sic] So then the fellow asked him some more
questions. Did this child drown in the bathtub? He kept asking more
questions, because his responses made no sense.
Closing argument is an opportunity for the attorneys to “explicate those inferences
which may reasonably be drawn from the evidence.” Bertolotti, 476 So. 2d at 134.
The prosecutor’s argument that Captain Wade likely continued asking Davis
questions about the child’s condition because Davis’s answers did not make sense
was a reasonable inference from Wade’s testimony about the conversation he had
with Davis upon arriving at the apartment.
Second, the prosecutor reviewed the testimony of Detective Hallam:
Then the detectives testified; both Frank Hallam and Tony
Hickson. They told you that they were both dispatched to investigate
this case, Detective Hallam as a lead investigator. Tony Hickson, in
assisting Detective Hallam, went to the house, Hallam went to the
hospital. Hallam went to the hospital, talked to the defendant, talked
to Mrs. Cunningham, talked to Mr. Moore, talked to the doctor and
then after he realized that everything Toney Davis was saying was
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totally inconsistent with what the doctors were saying, he took him
down to the Police Memorial building as a suspect in this case.
This comment was based on Detective Hallam’s testimony that after speaking to
the treating physicians, he “realized that the story that Mr. Davis had given [him]
was nowhere near consistent [with] what the doctors were telling [him] concerning
her injuries.” The prosecutor was entitled to review the evidence during closing,
see Bertolotti, 476 So. 2d at 134, and no objection was raised at trial or in this
postconviction proceeding to Detective Hallam’s opinion about the consistency of
Davis’s account.
Because the prosecutor’s arguments were reasonable inferences from or
summarizations of the evidence admitted at trial, Davis has not demonstrated that
the arguments were improper or constituted fundamental error. Accordingly,
Davis has not shown that appellate counsel could have raised a meritious challenge
to the prosecutor’s arguments
f. Capitalizing on Janet Cotton’s Testimony
In his final challenge related to the guilt phase, Davis contends that appellate
counsel should have argued on appeal that the prosecutor erred by relying on false
testimony from witness Cotton during the closing arguments. As explained above,
Davis did not demonstrate that Cotton’s trial testimony was false. As a result, he
has not established that appellate counsel should have challenged the prosecutor’s
arguments based on Cotton’s testimony.
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2. Penalty Phase Arguments
a. Victim’s Siblings
Davis contends that appellate counsel should have challenged the
prosecutor’s comment that “one day Ashley and Juan are going to grow up and
they’re going to want to know what happened to Caleasha, and they’re going to
know what justice was done.” As addressed in Davis’s related postconviction
claim, this comment was an objectionable appeal to the jurors’ emotions. But for
the same reasons that Davis was not prejudiced by trial counsel’s failure to object
to the comment, the isolated emotional appeal did not constitute fundamental error.
The comment does not undermine confidence in the jury’s verdict, must less vitiate
the fairness of Davis’s trial.
b. Prosecutorial Expertise
Davis contends that appellate counsel should have challenged the following
argument: “As we talked about in jury selection, you know the State of Florida
does not seek the death penalty in every case, because it’s not just proper in every
case. But I submit to you, in this case, it most certainly is.” Davis is correct that
this prosecutorial expertise argument is improper. See, e.g., Ferrell v. State, 29 So.
3d 959, 987 (Fla. 2010); Brooks v. State, 762 So. 2d 879, 901 (Fla. 2000). But
even when considered cumulatively with the prosecutor’s appeal to the jurors’
sympathy for the victim’s siblings, this comment does not rise to the level of
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fundamental error. These comments do not “reach[] down into the validity of the
trial itself to the extent that a . . . recommendation of death could not have been
obtained without the assistance of the alleged error[s].” Card, 803 So. 2d at 622.
The two objectionable comments in the penalty phase of this case were less
egregious than those in Card, in which this Court concluded that a prosecutor’s
comments misleading the jury about whether the defendant would serve a life
sentence, suggesting that the jurors could weigh victim impact evidence as
aggravation, and urging the jury to be the “conscience of the community” “were
not so prejudicial as to vitiate the entire trial.” Id. at 622. Here, the prosecutor’s
improper statements were not numerous and the comment regarding the victim’s
family did not expressly ask the jurors to recommend a death sentence. In
addition, the defense presented little mitigation evidence—none of which pertained
to the circumstances of the offense—to be weighed against the evidence of two
aggravating factors: in the commission of a sexual battery and HAC. Given this
ratio of mitigation to aggravation, Davis cannot establish that the jury’s
recommendation could not have been obtained without the two improper penalty
phase comments.
c. Death Penalty Is Justified
Davis next objects to the prosecutor’s statement: “If you find there are one
or more aggravating circumstances in this case, Ladies and Gentlemen, then that
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justifies the imposition of a death penalty; unless, unless you find mitigating
circumstances. And take it a step further, if those mitigating circumstances
outweigh the aggravating circumstances.” This comment was not improper.
While a prosecutor may not argue that the jury must recommend a death
sentence unless the mitigating circumstances outweighed the aggravating
circumstances, see, e.g., Brooks, 762 So. 2d at 902, in the instant case, the
prosecutor correctly informed the jury that a death sentence is legally permitted
where the aggravating circumstances outweigh the mitigating circumstances
without improperly diminishing the jury’s discretion to recommend less than the
legally allowable sentence. This Court has also disapproved arguments in which
the prosecutor misstates Florida law by urging the jury to recommend a death
sentence where the aggravating circumstances outnumber the mitigating
circumstances. See, e.g., Urbin v. State, 714 So. 2d 411, 421 (Fla. 1998). But in
Davis’s case, the prosecutor correctly stated that the sentencing recommendation
should be based on whether the aggravating factors outweigh the mitigating
factors. Because Davis has not demonstrated that this prosecutorial comment was
improper, he has not demonstrated that appellate counsel erred. See Rutherford,
774 So. 2d at 649.
d. “Cries Out” for Death
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Relying on Ferrell and Brooks, Davis asserts that appellate counsel should
have challenged the prosecutor’s argument that Davis’s case “simply cries out for
the death penalty because of th[e] heavy, heavy aggravating circumstance” that the
murder was committed during the course of a sexual battery. This Court did not
disapprove of any similar comment in Ferrell or in Brooks, and Davis offers no
other authority to support his claim that this argument was improper. Because
Davis did not establish that the argument was improper, he has not demonstrated
that appellate counsel erred.
e. Hold Davis Accountable
Davis asserts that appellate counsel should have challenged the prosecutor’s
arguments that “based on those categories of evidence,” the jury will “determine
whether this defendant will be held fully accountable for the crime that he’s
committed” and that “[j]ustice demands that [the jury] hold this defendant fully
accountable for this murder.” Davis is correct that this Court has concluded that it
is improper for the State to tell jurors that “the only proper recommendation to this
court is a recommendation of death” or that the jurors have a legal duty to
recommend the “appropriate punishment” of death. See Melton v. State, 949 So.
2d 994, 1019 n.16 (Fla. 2006). Davis overlooks, however, that in Gonzalez, 990
So. 2d at 1029, this Court clarified that it is not improper for the prosecutor to tell
the jury that it has a “responsibility” to recommend the death penalty where the
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prosecutor informs the jury that its recommendation should be “based upon all the
evidence in this case.”
This Court explicated the same distinction in Wade v. State, 41 So. 3d 857,
870-71 (Fla. 2010), in which the prosecutor argued:
You might hear an argument about life is enough. Life is
however many years he’s got left and leaves that prison only when he
dies. What I suggest to you is that argument tells you that this
defendant should not be held fully accountable for his actions. The
argument in essence says let’s take the easy way out. I know life is
life and I know it will be a miserable life in prison and let’s give him
life, but that’s not the law of the State of Florida. You have to weigh
and weigh this aggravation and you will find that it cries out for full
accountability.
This Court determined that the argument was not improper because it “correctly
told the jurors that it was their duty actually to weigh the factors, [and the
prosecutor] in no way implied that the jury was required by law to return a
recommendation of death.” Id. at 871. See also Ford v. State, 802 So. 2d 1121,
1131, 1131 n.17 (Fla. 2001) (concluding no error where prosecutor argued that
“[p]eople must be held accountable for their actions”).
As in Gonzalez and Wade, the prosecutor in Davis’s case did not assert that
the jurors had a legal duty to recommend death but instead asserted that the death
penalty was appropriate due to the evidence establishing an aggravating factor. As
a result, the argument was proper and appellate counsel did not err by not raising
this issue on direct appeal. See Rutherford, 774 So. 2d at 649.
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f. Nonstatutory Aggravating Factor
Finally, Davis contends that his appellate counsel should have argued that
the following comment was an attempt to interject into the jury’s evaluation a
nonstatutory aggravating factor:
Now, we have already talked about the circumstances of the
offense. You know what happened to that child and you know how it
happened. And I suggest to you there is no mitigat[ion] in the
circumstances of the offense . . . . I suggest to you there is nothing but
aggravation, because remember this defendant tried to cover that up.
She choked on a French fry and she had an asthma attack. That’s
what he told everybody. That’s what he told the rescue captain who
was frantically trying to save that child’s life.
So this defendant just in a cold-hearted way, lies and
misrepresents as to what happened to that child. That’s the first thing
he does after committing those vicious crimes.
Does that reflect on this defendant’s character? Sure it does.
It’s the same answer, I submit to you, absolutely no regard for the
sanctity of human life. That’s all.
Penalty phase evidence of the defendant’s bad acts is permissible when
“offered in rebuttal to the defense, not as a nonstatutory aggravator.” Zack v.
State, 911 So. 2d 1190, 1208 (Fla. 2005). The challenged comments, when read in
context, do not attempt to interject a nonstatutory aggravating factor into the jury’s
consideration. After explaining why the aggravating factor that the murder was
committed in the course of a felony was applicable to this case, the prosecutor
went on to address the mitigating circumstances that would likely be proposed by
the defense. In doing so, the prosecutor cited Davis’s lack of truthfulness to first
responders as evidence rebutting the defense’s theory that Davis is a good person
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and Davis’s testimony that he did not harm the victim. This argument was
permissible. Accordingly, appellate counsel did not err.
B. Ineffective Appellate Assistance Regarding Nelson Hearing
On direct appeal, Davis’s counsel argued that during the hearings on March
21, 1994, and April 5, 1994, the trial court “erred in not following the dictates of
Nelson and Faretta when Davis moved to discharge his court-appointed counsel
before trial commenced.” Merit Brief of Appellant at 9, Davis v. State, No.
SC86,363 (Fla. Jul. 29, 1996). This Court rejected that claim, concluding that
Davis’s request to discharge was ambiguous. Davis, 703 So. 2d at 1058. Davis
now asserts that appellate counsel also should have argued that the trial court erred
by not conducting additional Nelson hearings in June 1994 and June 1995 based on
letters that he wrote to the trial court. His habeas claim is without merit.
“[T]he requirements of Nelson depend upon a clear and unequivocal
statement from the criminal defendant that he wishes to discharge counsel.” Logan
v. State, 846 So. 2d 472, 477 (Fla. 2003). “This Court has consistently found a
Nelson hearing unwarranted where a defendant presents general complaints about
defense counsel’s trial strategy and no formal allegations of incompetence have
been made.” Logan, 846 So. 2d at 477. Accordingly, expressions of disagreement
with trial counsel’s strategy or complaints about lack of communication—as in
Davis’s June 1994 letter—do not give cause for a Nelson hearing. See, e.g.,
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Stephens v. State, 787 So. 2d 747, 758 (Fla. 2001). And while in his June 1995
letter, filed after the jury reached its verdict on May 11, 1995, Davis asked for a
new trial due to his belief that trial counsel erred, Davis did not ask that trial
counsel be discharged. Because the trial court was not required to hold a Nelson
hearing based on Davis’s June 1994 and June 1995 letters, appellate counsel did
not err by not raising the letters on direct appeal.
IV. CONCLUSION
For the reasons stated above, we affirm the postconviction court’s denial of
Davis’s motion for postconviction relief and deny his petition for a writ of habeas
corpus.
It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA,
and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Duval County,
Henry Elisha Davis, Judge - Case No. 92-13193-CF
Habeas Corpus – Original Proceedings
Richard Adam Sichta, Jacksonville, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, and Stephen R. White, Assistant Attorney
General, Tallahassee, Florida,
for Appellee
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