& SC16-224 Enoch D. Hall v. State of Florida & Enoch D. Hall v. Julie L. Jones, etc.

Supreme Court of Florida
____________
No. SC15-1662
____________
ENOCH D. HALL,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
____________
No. SC16-224
____________
ENOCH D. HALL,
Petitioner,
vs.
JULIE L. JONES, etc.,
Respondent.
[February 9, 2017]
PER CURIAM.
Enoch Hall appeals an order of the postconviction circuit court denying his
initial motion to vacate his conviction of first-degree murder and sentence of death
filed pursuant to Florida Rule of Criminal Procedure 3.851. He also petitions this
Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9),
Fla. Const. For the reasons that follow, we affirm the postconviction court’s denial
of relief on all claims and deny Hall’s petition for a writ of habeas corpus.
Trial and Appeal
Enoch Hall was convicted and sentenced to death for the first-degree
premeditated murder of Corrections Officer (CO) Donna Fitzgerald. Hall v. State,
107 So. 3d 262, 267 (Fla. 2012). In affirming Hall’s convictions, this Court
previously detailed the facts surrounding the murder:
On July 10, 2008, Enoch Hall was indicted by the grand jury
for the murder of Florida Department of Corrections Officer Donna
Fitzgerald. Hall was an inmate at [Tomoka Correctional Institution
(TCI)], who worked as a welder in the Prison Rehabilitative Industries
and Diversified Enterprises, Inc. (PRIDE) compound where inmates
work refurbishing vehicles. Sergeant Suzanne Webster was working
as the TCI control room supervisor, where she was responsible for
getting a count from all areas of the prison as to the number of
inmates in each area. When Webster had not heard from Fitzgerald,
who was working in the PRIDE compound that night, Webster
radioed Officer Chad Weber, who went to the PRIDE facility with
Sergeant Bruce MacNeil to search for Fitzgerald. Weber saw Hall run
through an open door on the other end of one of the PRIDE buildings
and Weber and MacNeil pursued Hall. Weber caught up to Hall, who
repeatedly stated “I freaked out. I snapped. I killed her.” Hall
responded to Weber’s commands and placed his hands on the wall
and was handcuffed. Weber took possession of the PRIDE keys that
Hall had in his hands. Officer Chad Birch shouted from inside the
building, “Officer down!” and Hall remained outside with other
officers while Captain Shannon Wiggins and Officers Weber and
MacNeil entered the building and located Fitzgerald’s body.
Fitzgerald’s body was found lying face down on top of a cart in the
paint room. The upper part of her body was wrapped in gray wool
blankets, and the bottom half of her body came over the back of the
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cart, with her pants and underwear pulled down to her knees. Inside a
bucket of water that was on the floor next to Fitzgerald’s legs was
Hall’s bloody T-shirt. Hall was escorted to the medical facility
(MTC) of the prison by Officers Brian Dickerson and Gary Schweit.
Several officers took turns watching Hall while he sat in the MTC.
Hall was later escorted to a conference room to talk with investigators
from the Florida Department of Law Enforcement (FDLE) and then to
a cell. Hall gave three statements to FDLE agents throughout the
night regarding the events of the murder.
Guilt Phase
A jury trial commenced on October 12, 2009. Daniel Radcliffe,
a crime scene investigator for FDLE, testified that he found two
packets of pills in a file cabinet in the paint room of PRIDE where the
body was discovered. The pill packets had an inmate’s name on them,
Franklin Prince, and were labeled Ibuprofen 800 milligrams and
Carbamazepine, a generic equivalent of Tegretol, 200 milligrams, an
anti-seizure medication. Hall’s white T-shirt was found in a bucket of
water with other shirts in the paint room, and Hall’s pants were found
in a pile of clothes, also in the paint room. Months later, Hall’s blue
prison shirt was found lodged on top of a paint booth. Granules of
Speedy Dry, an oil absorbent material, were found on the ground in
front of the welding shed and in a coffee can next to the shed. The
granules tested positive for blood and DNA testing confirmed that it
was Fitzgerald’s. A broom found nearby had Fitzgerald’s blood on
the broom head. Blood was found on the walls of the welding shed.
Also found in the welding shed was a cap, which had Fitzgerald’s
blood on it. Hall’s clothes, including his underwear, tested positive
for Fitzgerald’s blood. A sexual assault analysis was performed on
Fitzgerald’s body. Jillian White, a crime lab analyst with the FDLE,
testified that there was no evidence of semen on the body. Wiggins
testified that he was a commander of the TCI rapid response team and
as part of his job would search prisons for weapons. Wiggins testified
that shanks made in the PRIDE facility differed from the usual ones
made by inmates in that they had a machined edge made by a grinder.
Wiggins testified that the shank recovered from the wall of the paint
room which appeared to be the murder weapon had a meticulously
sharpened point like those made from a tool grinder in the PRIDE
facility.
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The State played the three confessions Hall made on the night
of the murder. In the first statement, given to FDLE agents and TCI
personnel, Hall admitted to killing Fitzgerald and stated that he had
taken four pills that Frank Prince, another inmate working in PRIDE,
had given to him. Later that day, when his shift ended, Hall went
looking for more pills, but was unable to find any and became angry.
Officer Fitzgerald came in and laughed and called Hall by his
nickname, “Possum, come on, get out of there.” Hall told her to get
out. Fitzgerald grabbed Hall’s arm and he “freaked out” and began to
stab her with a sharp piece of metal that he found on the floor of the
room. Hall then took off his bloody shirt, put it in a bucket of water,
and put on one of Prince’s shirts. He picked up the PRIDE keys and
continued to look for pills. Hall stated that he did not remember
pulling Fitzgerald’s pants down. Hall said that he did not want to
have sex with Fitzgerald. Hall repeatedly stated that he just wanted to
get high.
The second statement, given at about 1:30 a.m., was taken by
Agent Stephen Miller of the FDLE upon Hall’s request in the cell in
which Hall had been placed. During this interview, Hall admitted that
he killed Fitzgerald somewhere other than the room where she was
found. Fitzgerald found Hall searching for pills in the office. He ran
out past her, she chased him to the welding shed, and he stabbed her
there. Hall carried her to the office and placed her on the cart. Hall
said he threw some dirt on the blood outside the welding shed. Hall
told Miller that he hid the knife in a cinderblock wall near the welding
shed. Hall also told Miller he did not think he was “going to make it
to tomorrow.” Miller told Hall that he would transport him to the
branch jail in a little while.
The third statement was given at about 3:30 a.m. and was made
only to the FDLE agents. In this third statement, Hall agreed that in
his first statement he said he killed Fitzgerald inside the PRIDE
building, but in his second statement he admitted to killing her in the
welding area outside the PRIDE building. Hall admitted that he
stayed behind in the PRIDE compound to look for drugs. While
looking for drugs, Hall found the shank by the sink in Prince’s office
and took it with him. When he realized Fitzgerald was looking for
him, Hall hid inside the welding shed. Fitzgerald opened the shed
door and came in and tried to grab him. He tried to run past her, but
she would not let go, so he stabbed her. Hall did not recall how many
times he stabbed her, but said he stabbed her enough times “just to get
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by.” Fitzgerald fell to the ground inside the shed; he did not know
whether or not she was alive. He hid the shank in the wall and spread
some Speedy Dry on the ground in the welding area to soak up the
blood. Hall wrapped her up in a towel and blankets and carried her
back to the paint room/office. Hall placed her on a cart. He then
continued to look for pills, but was not able to find any. Hall went
back to the room where Fitzgerald was and pulled down her pants. He
did not sexually assault her. Hall said he put his shirt in a bucket of
water, put on Prince’s shirt, but kept on his own pants. Corrections
officers entered the PRIDE facility and he attempted to run from
them.
Dr. Predrag Bulic, the Volusia County associate medical
examiner, testified for the State about the injuries Fitzgerald sustained
based on her autopsy results. He testified that Fitzgerald’s body bore
evidence of blunt force injuries, mostly on her face, consistent with
those caused by punches from a hand. Fitzgerald’s hands and arms
had sustained defensive wounds caused by a sharp instrument
consistent with a knife. Fifteen additional stab wounds were inflicted
upon Fitzgerald, including on her stomach, back, and chest. Dr. Bulic
also testified that a gold chain necklace on Fitzgerald’s body had been
pulled tightly around her mouth and neck from behind in a manner so
as to exert sufficient force to leave a postmortem mark consistent with
ligation. On October 23, 2009, Hall was convicted of first-degree
murder.
Penalty Phase
The penalty phase commenced on October 27, 2009. The
defense renewed its previously argued motion to preclude the State
from offering evidence of the length of Hall’s sentences he was
serving when he killed Fitzgerald. The trial court denied the motion
and the State offered evidence that Hall was serving two consecutive
life sentences when he murdered Fitzgerald.
The State also offered evidence that Hall had committed prior
violent felonies, introducing testimony from two women whom Hall
had raped. The defense objected to the testimony of the two women
as highly prejudicial and irrelevant. The trial court overruled the
objection and allowed the testimonies.
Victim impact statements were published for the jury. Donald
and Dana Shure, Officer Fitzgerald’s younger brother and sister,
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prepared written statements and read them to the jury. Joanne Dunn,
Fitzgerald’s mother, also read a statement to the jury.
The defense presented several witnesses during the penalty
phase to support mitigation. James Hall, Hall’s father, testified that
Hall was a good son and got along well with his two younger brothers.
He also testified that Hall had been raped in jail at age 19, when his
girlfriend’s mother’s boyfriend, a law enforcement officer, arranged to
have him put in jail after a dispute. After his release, Hall became
afraid and mostly stayed home, and he eventually started living in a
shelter in the woods. James Hall had not seen his son since 1995.
Hall’s mother, Betty Hall, also testified regarding her son’s love for
sports growing up. Dr. Reid Hines, a dentist, testified telephonically
that he and Hall had played sports together in high school and that
Hall was an excellent athlete. Bruce Hall, the former plant manager
for PRIDE, testified that Hall started at PRIDE as an apprentice
welder and eventually worked his way up to lead welder. Rodney
Callahan, an inmate who used to work with Hall, described him as a
very good worker, conscientious, and responsible.
Dr. Daniel Buffington, a pharmacologist, testified for the
defense that, among other possible side effects, both Ibuprofen and
Tegretol have the capacity to alter someone’s behavior. The State
called Dr. Wade Myers on rebuttal, who testified that most people
who take an overdose of Ibuprofen do not have any side effects and
the remaining people typically complain of nausea, and that Tegretol
has an anti-aggression component to it, and, in his opinion, it “would
be very unlikely” to cause aggression—“You’re going to get the
opposite effect.”
The jury returned a recommendation of death by a unanimous
vote.
Spencer [n.2] Hearing
[n.2] Spencer v. State, 615 So. 2d 688 (Fla. 1993).
In support of the defense’s contention that Hall should receive
the emotionally and mentally disturbed statutory mitigator, Dr. Harry
Krop testified for the defense that Hall had a cognitive disorder, not
otherwise specified, coercive paraphilia disorder-multiple sexual
offender, and an alcohol substance abuse disorder. Krop testified that
Hall had a serious emotional disorder at the time of the offense and
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that Hall’s ingestion of Tegretol could bring out his underlying
psychological traits.
The State offered rebuttal testimony from Dr. William
Riebsame, a forensic psychologist and professor of psychology, and
Dr. Jeffery Danziger, a board certified forensic psychiatrist.
Riebsame testified that the results of the tests administered to Hall by
Krop were questionable, because Krop failed to test for malingering.
Danziger testified that he administered two tests to determine whether
Hall was mentally ill or was malingering. A score of more than 14 is
highly correlated with malingering and Hall’s score was 29. Danziger
arrived at the opinion that Hall has a history of substance abuse, adult
anti-social behavior, history of sexually-related charges, possible
psychosexual disorder, and pseudo-seizure disorder by history.
Danziger strongly disagreed with any attempt by Buffington to
diagnose a psychological condition and disagreed with Buffington’s
opinion that Tegretol could unmask an underlying psychological
illness. The trial court found that Hall did not establish the existence
of mental or emotional disturbance as a statutory mitigating
circumstance and gave it no weight.
In the trial court’s Sentencing Order, the court found five
aggravators: (1) previously convicted of a felony and under sentence
of imprisonment—great weight; (2) previously convicted of another
capital felony or of a felony involving the use or threat of violence to
the person—great weight; (3) committed to disrupt or hinder the
lawful exercise of any governmental function or the enforcement of
laws—great weight; (4) especially heinous, atrocious or cruel—very
great weight; (5) cold, calculated, and premeditated—very great
weight; (6) the victim of the capital felony was a law enforcement
officer engaged in the performance of his or her official duties—no
weight—merged with aggravator number 3 as listed above. In
mitigation, the sentencing court found no statutory mitigators and
eight non-statutory mitigating circumstances: (1) Hall was a good son
and brother—some weight; (2) Hall’s family loves him—little weight;
(3) Hall was a good athlete who won awards and medals—little
weight; (4) Hall was a victim of sexual abuse—some weight; (5) Hall
was productively employed while in prison—some weight; (6) Hall
cooperated with law enforcement—some weight; (7) Hall showed
remorse—little weight; and (8) Hall displayed appropriate courtroom
behavior—little weight. The trial court concluded that the
aggravating circumstances far outweighed the mitigation and gave
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great weight to the jury’s unanimous recommendation of death. Thus,
the trial court imposed the sentence of death.
Id. at 267-71 (footnote omitted).
On direct appeal, this Court held that the trial court’s finding of the cold,
calculated, and premeditated aggravator was not supported by competent,
substantial evidence and thus it was stricken. Id. at 278-79. Nevertheless, the
Court ultimately affirmed Hall’s conviction and sentence. Id. at 281. The United
States Supreme Court denied certiorari review on October 7, 2013. Hall v. Florida,
134 S. Ct. 203 (2013).
Postconviction Proceedings
Pursuant to Florida Rule of Criminal Procedure 3.851, on September 17,
2014, Hall filed a motion to vacate his judgment of conviction and sentence. Hall
claimed that his counsel were ineffective during both the guilt and penalty phases
of his trial and that he was deprived of a fair trial by the individual and cumulative
effect of any errors. Hall also claimed that his execution will violate his
constitutional rights because he may be incompetent at the time of execution.
Furthermore, in his petition for writ of habeas corpus to this Court, Hall presents
two claims: (1) the jury instructions in capital sentencing are unconstitutional; and
(2) trial counsel was ineffective in litigating the facial and as-applied constitutional
challenges to Florida’s capital sentencing statute.
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Hall presented ten witnesses during the evidentiary hearing: (1) Lt. Stephan
Farrow, the officer who recorded Hall’s transport video from the Volusia County
Jail to Florida State Prison; (2) John Joiner, the officer who conducted the
investigation with regard to PRIDE prison procedures for the Inspector General’s
Office; (3) Elizabeth Lasseter, Hall’s half-sister; (4) Rodney Callahan, a fellow
inmate and PRIDE employee; (5) Jesse Eugene Hall, Hall’s uncle; (6) Enoch
James Hall, Hall’s father; (7) Walter Schell, a fellow inmate and PRIDE employee;
(8) Dr. Michael Maher, M.D., a psychiatrist; (9) James Valerino, one of Hall’s two
trial attorneys; and (10) Matthew Phillips, Hall’s second trial attorney. The State
presented three witnesses: (1) Agent Steven Miller, a Special Agent with FDLE
who investigated the crime and interviewed Hall after the murder; (2) Investigator
Robert Ryan, an investigator for the Office of the Public Defender who conducted
Hall’s mitigation investigation; and (3) Dr. Jeffrey Danziger, M.D., a psychiatrist
for the State.
Hall’s motion for postconviction relief was denied on July 8, 2015, and his
motion for rehearing was denied on August 7, 2015. This appeal follows.
ANALYSIS
Strickland Standard of Review
Under Strickland v. Washington, 466 U.S. 668, 687 (1984), a defendant
seeking relief on the basis of ineffective assistance of counsel must establish both
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that counsel’s performance was deficient and that this deficient performance
prejudiced the defendant, thus depriving him of a reliable proceeding.
Because both prongs of the Strickland test present mixed questions of law
and fact, this Court employs a mixed standard of review, deferring to the court’s
factual findings that are supported by competent, substantial evidence, but
reviewing the court’s legal conclusions de novo. See Sochor v. State, 883 So. 2d
766, 771-72 (Fla. 2004). Moreover, because Strickland requires that a defendant
establish both deficiency and prejudice, an appellate court evaluating a claim of
ineffectiveness is not required to issue a specific ruling on one component of the
test when it is evident that the other component is not satisfied. See Mungin v.
State, 932 So. 2d 986, 996 (Fla. 2006).
There is a strong presumption that trial counsel’s performance was not
ineffective. See Strickland, 466 U.S. at 690. “A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.” Id. at 689. This
Court has held that “strategic decisions do not constitute ineffective assistance of
counsel if alternative courses have been considered and rejected and counsel’s
decision was reasonable under the norms of professional conduct.” Occhicone v.
State, 768 So. 2d 1037, 1048 (Fla. 2000).
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Juror Challenge
Hall first asserts that trial counsel was ineffective for using a peremptory
strike on prospective juror Rapone, instead of striking her for cause, and that this
peremptory strike should have been used to challenge prospective juror Roddy
instead. Hall argues that Roddy was biased because he supervised a full time TCI
corrections officer at his work and he had discussed Hall’s case with this officer.
We disagree.
Deficiency
First, Hall has failed to establish deficient performance. There is competent,
substantial evidence to support the postconviction court’s conclusion that trial
counsel’s failure to challenge juror Rapone for cause and the subsequent use of a
peremptory challenge, rather than a for-cause challenge, was likely the result of
reasonable trial strategy and, therefore, did not rise to deficient performance. See
Evans v. State, 995 So. 2d 933, 942 (Fla. 2008) (“Although [the juror] clearly
supported the death penalty and initially indicated that a case of self-defense would
be the only time she would recommend life, she immediately confirmed that she
would listen to the judge’s instructions, ‘consider all circumstances’ and follow the
law. Based on her clear confirmation of her ability to follow the law and counsel’s
belief that she would be a good guilt-phase juror, counsel’s decision not to
challenge [the juror] was reasonable and a matter of trial strategy.”) (citing Dufour
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v. State, 905 So. 2d 42, 54-55 (Fla. 2005)). Specifically, although juror Rapone
initially stated that she had a preexisting opinion as to Hall’s guilt, she retreated
from that view during extensive questioning by attorney Valerino.1
1. Juror Rapone’s testimony regarding both her opinion of guilt and her
subsequent rehabilitation read as follows:
MR. VALERINO: Had you formed any opinion about the case [given
your media exposure]? . . .
PROSPECTIVE JUROR RAPONE: Well, you know, when you see
rape and you see a prisoner’s involved, you know, you seem to think,
well, he’s already in jail, he’s already in prison, he’s supposed to be
learning a lesson, and what’s going on. And yes, I formed an opinion.
It was not a good opinion.
MR. VALERINO: Okay. And so have you formed an opinion as to
whether he’s guilty or not guilty, based on the information you’ve
received?
PROSPECTIVE JUROR RAPONE: Well, now that I’m in this
situation, I’ve learned some things, and I know my duty, you know,
my—probably, I know my opinion should not matter until I’ve
learned all the facts. However, I have formed an opinion. So, yes.
MR. VALERINO: What is that opinion?
PROSPECTIVE JUROR RAPONE: That he’s guilty. . . .
MR. VALERINO: Having an opinion that he’s guilty, do you have an
opinion, having read in the newspaper that he was serving a life
sentence, and having read in the newspaper it was for rape, as to what
sentence he should receive, death or life in prison without parole?
PROSPECTIVE JUROR RAPONE: I did not have an opinion until I
was asked, probably today, about the death penalty, and I really don’t
have an opinion now. I know it’s on my mind. It’s something I may
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Furthermore, this strategic decision was reinforced by Valerino’s testimony
that juror Rapone had been sufficiently rehabilitated, thus explaining counsel’s use
of a peremptory challenge. Specifically, attorney Valerino explained:
Okay. In regards to Juror Rappone [sic], she is the one who I
had the words—and I don’t know if Mr. Phillips did, too, but I had the
words cause next to her name in different areas.
In reviewing the voir dire of Ms. Rappone [sic], in Volume XV,
starting at page 503, the Court asked Ms. Rappone whether or not
what she had heard and her opinions—what she had heard about the
have to consider in the next few days, if I am chosen. But I did not
have an opinion at that time, no.
MR. VALERINO: So are you able to set aside the information you’ve
received that you’ve told us about in making a decision on guilt or
innocence, and, also, if we get to the second phase, the possible
penalty?
PROSPECTIVE JUROR RAPONE: As I said before, I believe I can.
Yes. . . .
THE COURT: Ms. Rapone, is the opinion that you have that you
expressed to Mr. Valerino, so I’m certain, is the opinion that you
expressed as to his being guilty, is that so fixed in your mind that you
believe you would be unable to set it aside and keep an open mind for
the purpose of this case, listen to the evidence and the law the Court
gives to you, to discuss the case with your fellow jurors in
deliberation, after hearing argument of counsel, and returning a fair
verdict, could you still do that?
PROSPECTIVE JUROR RAPONE: Yes.
THE COURT: You could do that?
PROSPECTIVE JUROR RAPONE: Yes.
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case could be set aside and if she could hear the—decide the case
based on what she just heard in the courtroom and the arguments of
the attorney and return a fair verdict.
And she indicated that she could do that. And so based on that
answer, I’m kind of assuming, based on that answer, we felt that she
had been rehabilitated for a cause challenge.
Thus, we hold that Hall has failed to show deficient performance for this claim.
Prejudice
Furthermore, Hall has not established prejudice. In the postconviction
context, we have held that a defendant must establish that an actually biased juror
sat on the jury to succeed on a claim of ineffective assistance of counsel for failing
to make a cause challenge. See Carratelli v. State, 961 So. 2d 312, 324 (Fla. 2007).
This is a higher standard than on direct appeal—mere doubt about a juror’s
impartiality is insufficient under this standard. See id.; see also Johnston v. State,
63 So. 3d 730, 744-45 (Fla. 2011).
Hall has failed to show that the juror in question was actually biased.
Competent, substantial evidence supports the postconviction court’s determination
that juror Roddy’s work relationship with a TCI officer did not establish actual
bias. Notably, the postconviction court judge was the same judge that presided
over the jury selection process and was therefore in a better position to observe
juror Roddy’s demeanor and the genuineness of his answers relating to his ability
to be fair and impartial. See Carratelli, 961 So. 2d at 319 (“[T]he trial court ‘has a
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unique vantage point in the determination of juror bias’ that is unavailable to us in
the record.”).
Upon being questioned by trial counsel, juror Roddy assured the court that
he was willing to “weigh all the facts, both pro and con, for and against, and render
a decision based on that.” Further, Roddy also assured counsel that his work
relationship with a TCI corrections officer would not pressure or affect his
decision-making process as a juror. Similar to the facts in Carratelli, where the
Court found the record supported the challenged juror’s lack of bias because he
“held no firm opinion except that he could be fair, listen to the evidence, and
follow the law,” 961 So. 2d at 327, here, juror Roddy similarly assured the court
that he had no set opinion and would abide by the law and consider the evidence
presented in making his determination. Therefore, we conclude that Hall has failed
to establish juror Roddy’s actual bias as required under Carratelli.
In addition, even if counsel was deficient for failing to ask the court for an
additional peremptory challenge in order to strike juror Roddy, this deficiency is
unlikely to have prejudiced Hall, given the fact that the trial court had already
granted the defense three additional peremptory challenges and was unlikely to
grant another for juror Roddy. Thus, juror Roddy would likely have still served on
Hall’s jury, even if counsel had requested an additional peremptory challenge, and
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the result of Hall’s case thus would have remained the same. Therefore, we
conclude that this claim fails.
Ineffectiveness at the Guilt Phase
Hall next argues that his trial counsel was ineffective at the guilt phase for
failing to adequately investigate, develop a defense, and challenge the State’s case.
We disagree.
Primarily, Hall has failed to establish prejudice. Competent, substantial
evidence supports the postconviction court’s findings that trial counsel were not
ineffective at the guilt phase. Notably, for all of the sub-claims addressed below,
none of the alleged deficiencies would have rebutted Hall’s own confession that he
hid from CO Fitzgerald in the welding shed with a shank after she confronted him
in Prince’s office while he was looking for pills. This confession established the
requisite premeditation in the State’s case, and none of the alleged deficiencies
would have rebutted this evidence. Therefore, we conclude that Hall has failed to
establish prejudice with regard to this claim.
Stress at PRIDE
In his first sub-claim, Hall claims that trial counsel was deficient for failing
to introduce evidence of the stressful work conditions at PRIDE in an attempt to
explain what caused Hall to “freak out” on the night of the murder. We hold that
Hall has failed to establish deficiency under this sub-claim.
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We have repeatedly stated that, under Strickland, reasonable strategic
decisions do not constitute ineffective assistance of trial counsel. See Bradley v.
State, 33 So. 3d 664, 671-72 (Fla. 2010). We have also stated that mere
disagreement by a subsequent counsel with a strategic decision of a predecessor
does not result in a showing of deficient performance. See Occhicone, 768 So. 2d
at 1048. Differing, yet reasonable trial strategy comes in various forms. One
example is trial counsel’s decision to not call certain witnesses to testify. See
Johnston, 63 So. 3d at 741.
The postconviction evidence indicated, and the postconviction court found,
that counsel chose not to present evidence of stress to the jury during the guilt
phase because it was inconsistent with counsel’s theory of defense. Attorney
Valerino testified during the evidentiary hearing that the theory of Hall’s defense
was that he had taken pills earlier in the day and needed more, and he stayed late to
look for more pills.
Attorney Valerino further testified that presenting testimony from other
inmates about the stressful work conditions at PRIDE would not have helped
Hall’s case or been consistent with Hall’s theory of defense. Rather, attempting to
present testimony about stress would have potentially hurt Hall’s case due to the
lack of corroborating evidence to show that Hall was particularly stressed on the
day of the murder. Specifically, attorney Valerino testified:
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I just don’t think that the issue of stress was an issue that was
going to help our case in light of the testimony of the other inmates
that, although they felt stress, they never got punished, never had
repercussions from the events.
Another reason not to call inmates, and this was the reason why
we selected the ones we did, is most of the other inmates had contact
with Mr. Hall during that day, and nobody saw anything unusual.
He wasn’t acting unusual that day. As a matter of fact, the—his
assistant, Mr. Geddis, he was a welding assistant.
We took his deposition, and he indicated that Mr. Hall did his
job normal that day. There was nothing unusual about him. He
wasn’t acting weird, nothing out of the ordinary.
So we were also reluctant to call witnesses who might have
testified, because we had this defense of the pills, that Mr. Hall was
testifying—or was acting normally, that he was acting like he did
every day and he wasn’t acting unusual.
We find that competent, substantial evidence supports the postconviction
court’s finding that attorneys Valerino and Phillips made a strategic decision not to
present evidence of the alleged stressful work conditions at PRIDE in light of the
lack of corroborating evidence from co-workers. Had they chosen to present this
evidence, the State almost certainly would have rebutted the evidence by bringing
to light the fact that all of the inmates at PRIDE may have experienced stress, yet
none of them murdered CO Fitzgerald. Furthermore, evidence about stressful
work conditions would likely have also led to rebuttal testimony about Hall’s
seemingly normal behavior on the days leading up to the murder and on the day of
the murder, which would directly contradict the defense’s theory that Hall was
high on the pills that caused him to “freak out.” Therefore, we find that this sub-
claim fails.
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PRIDE Overtime Closing Procedures
Hall next argues that trial counsel were deficient for failing to present
evidence of PRIDE’s closing procedures for the overtime shift and officers’ use of
chemical agents and body alarms when supervising the PRIDE facility as a way to
rebut the State’s contention that he was lying in wait for CO Fitzgerald and place
fault on the victim for the murder. We find that Hall has failed to establish
deficiency under this sub-claim.
Competent, substantial evidence supports the postconviction court’s finding
that Valerino and Phillips considered the relevance of this evidence and ultimately
decided against presenting it due to the potential that the jury would see this
evidence as an attempt to blame the victim. In fact, attorney Valerino justified his
reasoning as follows:
We did not present any testimony regarding her failure to
apply—or follow the rules because I viewed that as that would almost
be an argument that the jury would think that she deserved what she
got by not complying with the rules of the Department of Corrections.
In addition, it’s somewhat—just by Mr. Hall’s own statement,
he knew Ms. Fitzgerald was back there because he first saw her in
Franklin Prince’s room when he ran out of there and then went and
hid in the welding—I think they called it the welding shed when she
came in, so.
Moreover, attorneys Valerino and Phillips testified that they considered
presenting evidence about PRIDE closing procedures and CO Fitzgerald’s unusual
actions of dismissing all of the other PRIDE inmates before going to find Hall by
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herself, without carrying any chemical agents or body alarms, and they weighed
the pros and cons of doing so. Ultimately, they decided not to present this
evidence to avoid the potential negative impact it could have on the jury. Trial
counsel’s decision not to present evidence that could potentially be seen as
advocating that CO Fitzgerald “deserved what she got” is certainly a reasonable
strategic decision under the norms of professional conduct. Therefore, we
conclude that Hall has failed to establish trial counsel’s deficiency.
Unsupervised Access to Sheet Metal and Grinders
Hall’s next sub-claim contends that trial counsel was deficient for failing to
introduce additional testimony to show that all inmates working at PRIDE had
unsupervised access to sheet metal and grinders, rather than the evidence presented
that the welders had unsupervised access to sheet metal and grinders.
We find that Hall has failed to establish trial counsel’s deficiency for failing
to present evidence of PRIDE inmates’ unsupervised access to sheet metal.
Testimony was presented at trial that other PRIDE welders had access to sheet
metal and grinders, and that these other inmates could have made the shank that
Hall ultimately used to kill CO Fitzgerald. Moreover, attorney Valerino testified at
the evidentiary hearing that he did not present additional evidence about the issue
of who made the shank because he was relying on Hall’s statement that he found
the shank. Thus, presenting more evidence about who had unsupervised access to
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sheet metal and grinders would have been merely cumulative to Hall’s own
confession that he found the shank in Prince’s office while looking for pills and to
Captain Wiggins’ testimony about PRIDE welders’ access to sheet metal and
grinders. The failure to present cumulative evidence does not constitute deficient
performance. See Beasley v. State, 18 So. 3d 473, 484 (Fla. 2009). We therefore
hold that counsel were not deficient because they made a reasonable decision not
to present additional evidence about the unsupervised access to sheet metal and
grinders at PRIDE. This sub-claim thus fails.
Toxicology Screen
Hall’s next sub-claim asserts that trial counsel were deficient for failing to
request a toxicology screen to corroborate Hall’s own statement that he was under
the influence of Tegretol pills at the time of the murder.
We conclude that Hall has failed to establish trial counsel’s deficiency for
this sub-claim. Competent, substantial evidence supports the postconviction
court’s finding that trial counsel were not deficient for failing to request a
toxicology screen to test for drugs in Hall’s system. Attorney Phillips testified at
the evidentiary hearing that, to request a toxicology screen from an independent
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lab, the request must specifically allege what substances the lab must test for.2
Attorney Valerino testified that his first encounter with Hall was at first
appearance, and that he recalled having a brief conversation with Hall at that time,
but no mention was made of the facts of the case. There is no evidence in the
record demonstrating that Hall informed Valerino during their brief conversation at
first appearance that he was under the influence of drugs at the time of the murder.
Without having any notice about Hall’s alleged drug use at first appearance
or soon thereafter, trial counsel could not have had any way of knowing that a
toxicology screen was needed. Upon learning that Hall had taken white pills, there
was still no way for trial counsel to request a toxicology screen because Hall could
not specify what kind of pills he had ingested. Presumably, had Hall exhibited any
signs at first appearance evidencing he was still under the influence of drugs, trial
counsel might then have requested a court-ordered toxicology screen. However,
no mention was made about Hall exhibiting any type of unusual behavior that
would have placed trial counsel on notice of the need for a drug screening.
Moreover, the testimony of those closest to Hall immediately before and
2. Similarly, attorney Valerino testified that a toxicology screen was not
requested because the attorneys did not know what substances Hall had taken and
thus did not know what to ask the lab to test for.
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immediately after the murder supports the assertion that Hall was not acting as
though he was intoxicated.3
In light of trial counsel’s lack of notice that a toxicology screen may have
been warranted, attorneys Valerino and Phillips cannot be deficient for failing to
request this screen. As the postconviction court noted, “Counsel cannot be
considered deficient for failing to do something they could not do.” Furthermore,
counsel was not provided with discovery that revealed Prince’s Tegretol blister
pack until three weeks after the murder, at which point a drug screen would have
been unreliable. Upon learning that Tegretol was found in Prince’s office, counsel
then diligently proceeded to hire Dr. Buffington to provide neuropharmacological
testimony about the effects of the drug.
3. FDLE Special Agent Steven Miller stated that he did not order a
toxicology screen because he “didn’t feel it was necessary, nor was I the only
person making that decision. I mean, we had a supervisor on scene, the deputy
chief. And I was not the case agent on the investigation, but quite frankly, I wasn’t
sure what to believe. He—there was several—during the three interviews, there
were several things that changed.” Similarly, attorney Valerino, in explaining why
the issue of stress was not presented to the jury, testified that multiple inmates were
deposed and none mentioned that Hall had been acting differently the day of the
murder. However, Inspector Joiner testified that Hall did not appear to be
intoxicated, although “he seemed to be dazed” and impaired by a substance, such
that drug testing may have been appropriate under DOC policy. Hall’s demeanor
improved as he gave the three separate interviews and he gradually became
increasingly responsive to FDLE’s questions.
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Hall also contends that the State did not present any expert testimony at the
evidentiary hearing to prove that no comprehensive toxicological test exists. This
claim, however, ignores the fact that the defendant carries the burden to show that
counsel’s performance was deficient. See Robinson v. State, 707 So. 2d 688, 694
(Fla. 1998). Thus, it was Hall’s responsibility, not the State’s, to present testimony
that such comprehensive toxicological tests do in fact exist and could have been
utilized by trial counsel. Hall’s claim attempts to establish trial counsel’s
deficiency by using the distorting effects of hindsight to allege error. We conclude
that competent, substantial evidence supports the postconviction court’s finding
that counsel were not deficient.
Dr. Buffington’s Testimony
Hall next asserts that trial counsel were deficient for failing to successfully
present Dr. Buffington’s neuropharmacological testimony by arguing that this
testimony was relevant to prove motive, rather than a mental health defense.
We hold that Hall has once again failed to demonstrate that counsel was
deficient. Competent, substantial evidence supports the postconviction court’s
finding that counsel’s choice of argument was a strategic one and thus was not
deficient. Hall asserts that counsel argued for the admission of this testimony
based on the wrong legal justification, a mental health defense, and that this
amounted to deficient performance. At its core, however, this alleged failure is
- 24 -
based on postconviction counsel’s disagreement with trial counsel’s strategic
choice of argument, rather than trial counsel’s failure to do something that any
reasonable attorney would do under the norms of professional conduct.
Notably, although Hall contends that trial counsel failed to present Dr.
Buffington’s testimony to the jury, attorneys Valerino and Phillips did attempt to
present Dr. Buffington’s testimony by proffering his statement to Judge Walsh, but
were simply unsuccessful. See Bradley, 33 So. 3d at 680 (“Although the strategy
chosen by trial counsel . . . did not prevail, that fact alone does not render the
strategy unreasonable or deficient.”); Heath v. State, 3 So. 3d 1017, 1029 (Fla.
2009) (“The fact that this defense strategy was ultimately unsuccessful . . . does not
render counsel’s performance deficient.”); Henry v. State, 948 So. 2d 609, 616
(Fla. 2006) (“It is all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence . . . .” (quoting Strickland, 466 U.S.
at 689)).
Attorney Valerino testified at the evidentiary hearing that he attempted to
offer Dr. Buffington’s testimony to challenge premeditation,4 but the court found
4. During counsel’s argument after the proffer, attorney Valerino explained
the relevance of Dr. Buffington’s testimony to the trial judge as follows:
The testimony of Dr. Buffington is important because it goes to
the issue of whether there was premeditation or not on the part of Mr.
Hall at the time that this unfortunate incident occurred. According to
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the argument to be one of diminished capacity due to mental illness, which was
inadmissible at the guilt phase. Similarly, at the evidentiary hearing, when
attorney Phillips was asked if he considered “offering Dr. Buffington to explain to
a jury what Tegretol is, why you might want more, you know, motive for staying
[behind],” Phillips explained, “[Y]ou know, first off, we would like Dr. Buffington
to be able to testify to that, but I just don’t think there is—there is a mechanism for
that kind of testimony to come in during a—the guilt phase.” Trial counsel’s
testimony reflects that they attempted to present Dr. Buffington’s testimony to
challenge premeditation, but were ultimately unsuccessful in doing so because the
court ruled that the testimony was inadmissible. Additionally, attorney Phillips’
opinion that this testimony would not have been admissible to show Hall’s motive
the testimony of Dr. Buffington, Mr. Hall identified to him . . . that he
had taken Tegretol.
I think the testimony of Dr. Buffington shows that there are side
effects of Tegretol. Some are naturally associated, such as headaches,
dizziness, drowsiness, aggression, agitation, hallucinations,
disturbance of balance, confusion, speech abnormality, depression
with agitation, visual disturbance.
. . . And not only those side effects, but there’s the potential
side effects of the ability to unmask any underlying psychiatric
conditions.
....
So, again, we’re not going for voluntary intoxication. We’re
not asking for an instruction on insanity. We’re not asking for an
instruction on mental health.
This, we believe, is relevant as to the issue of premeditation.
- 26 -
for staying late further exemplifies the reasoning for the argument presented after
the proffer. See Lukehart v. State, 70 So. 3d 503, 513 (Fla. 2011) (“Counsel
cannot be deemed ineffective for failing to pursue a meritless claim.” (citing
Ferrell v. State, 29 So. 3d 959, 975 (Fla. 2010); Mungin v. State, 932 So. 2d 986,
997 (Fla. 2006))).
Therefore, we conclude that trial counsel were not deficient for failing to
proffer Dr. Buffington’s testimony by not arguing that it was relevant to explain
Hall’s motive for staying late to search for pills, rather than unmasking an
underlying mental illness.
Inconsistencies in Hall’s Confessions
Hall next alleges that trial counsel were deficient, both at the suppression
hearing and the guilt phase of trial, for failing to present testimony and medical
evidence of Hall’s injuries to explain the inconsistencies in Hall’s confessions. We
hold that Hall has failed to establish deficiency under this sub-claim.
Suppression Hearing
With regard to deficiency for failing to obtain and present expert medical
testimony with regard to Hall’s black eye and alleged limp, we conclude that
competent, substantial evidence supports the postconviction court’s finding that
trial counsel were not deficient. The record reflects that the injury that was
primarily noticed by everyone who came into contact with Hall on the night of the
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murder was his black eye. When asked why no medical expert testimony was
presented to attempt to explain when exactly might Hall have incurred the black
eye, attorney Valerino offered the following testimony:
Well, there was no doubt that Mr. Hall had a black eye, so I
don’t think that could be disputed.
The problem was trying to develop testimony in light of the—
some argument in light of the fact that all the corrections officers said
they didn’t hit him.
Something that we could try to convince the judge that maybe
they weren’t absolutely honest, but we would never be able to prove
the State—disprove the State’s argument that Mr. Hall could have
gotten these injuries, the black eye, in confrontation with Ms.
Fitzgerald during the incident where she was killed.
I mean, the reality of it was I did not believe Judge Walsh was
going to believe all these corrections officers were lying about who—
whether or not they hit Mr. Hall.
Valerino further supported his decision not to call a medical expert to testify about
Hall’s black eye, and compare its development to CO Fitzgerald’s black eye to
determine when the injury occurred, by explaining that he felt that he would not
have been able to “draw a corollary between the two because Officer Fitzgerald
was found with her head below her body, hanging upside-down, essentially, and
that she was deceased, so the blood would not have been pooling the same way and
along the same time lines.”
Similarly, Hall contends that he was limping after the alleged injuries and
that this limp was noted by a nurse who examined him the night of the murder and
was also evident in a video of him being transported to Florida State Prison.
- 28 -
However, aside from the nurse who originally noted a limp, whose testimony was
never presented, and Dr. Maher, who was retained for the evidentiary hearing, no
other witness noted Hall’s limp, including attorney Valerino, who briefly observed
him walking at first appearance. FDLE Special Agent Steven Miller testified that
Hall was shuffling his feet due to belly shackles, but did not seem to be in any
pain.
Hall also presented a picture of his shoulders and back at the evidentiary
hearing to show his bruised and scratched skin. Attorney Valerino testified that
this photo was not presented during the suppression hearing because he did not feel
that the photo definitively showed the existence of injuries. In sum, Hall asserts
that these injuries could have been used, and explained through expert testimony,
to corroborate his allegations of abuse. This assertion, however, is predicated on
Hall’s disagreement with trial counsel’s underlying strategy and his ability to find
a more favorable witness to testify at the evidentiary hearing.
Attorney Valerino testified that his strategy at the suppression hearing was to
try to call into question the correction officers’ testimony through cross-
examination to ultimately argue the possibility that the officers were not being
truthful. He considered presenting the picture of Hall’s back and shoulders but did
not find it to be persuasive. He also reviewed the video that Hall claims shows him
using the wall to support himself and testified that he did not note Hall limping, but
- 29 -
he did notice that he was belly-shackled, chained at the ankles, and shuffling to
walk in shower shoes. Attorney Valerino assessed the persuasiveness of the
evidence he had available to him and attempted to anticipate any shortcomings that
the State could capitalize on in deciding how to proceed at the suppression hearing.
We have observed that mere disagreement by a defendant’s subsequent
counsel with a strategic decision of a predecessor does not result in deficient
performance. See Occhicone, 768 So. 2d at 1048. In addition, we have previously
held that trial counsel’s strategy of relying on cross-examination of a witness—in
lieu of calling additional witnesses—was sound trial strategy. See id.Postconviction counsel’s ability to find a more favorable witness for the
evidentiary hearing has no bearing on the effectiveness of trial counsel’s not
having done so. Stephens v. State, 975 So. 2d 405, 413-14 (Fla. 2007).
The record reflects that counsel chose to elicit testimony on cross-
examination to support the theory that Hall had been injured, through evidence
establishing the timeline of when Hall’s eye injury became noticeable to the
officers, rather than relying on expert medical testimony that would likely be
rebutted by the State. Counsel considered the possibility of introducing additional
evidence of the injuries through the photo of Hall’s back and the limp that was
only noted by one person, despite Hall’s encounter with multiple people on the
night of the murder, yet he ultimately rejected these avenues as being
- 30 -
unpersuasive. Hall’s current claim challenges trial counsel’s strategic decisions at
the suppression hearing and uses the more favorable testimony of Dr. Maher to
support it. Based on attorney Valerino’s testimony with regard to his actions at the
suppression hearing, we hold that competent, substantial evidence supports the
postconviction court’s finding that counsel’s conduct was justified as reasonable
trial strategy, and thus Hall has failed to show deficiency at the suppression
hearing.
Guilt Phase
With regard to the claim of deficiency for failing to present evidence of the
alleged injuries to the jury and failing to obtain a mental health expert to testify as
to the effects of fear, head trauma, epilepsy, cognitive disorders, and PTSD on
memory to justify the inconsistencies in Hall’s confessions, Hall has also failed to
establish deficient performance. While no testimony was elicited from trial
counsel at the evidentiary hearing about why a mental health expert did not testify
to the effects that epilepsy, cognitive disorders, and PTSD might have on memory,
attorney Phillips’ testimony regarding his decision not to call Dr. Krop during the
guilt or penalty phase provides some explanation. Throughout the trial, counsel
was careful not to elicit any testimony concerning Hall’s previous history of
violent sexual offenses or his mental health issues in an attempt to not taint the
jury’s mind with potentially negative information. For example, Dr. Krop did not
- 31 -
testify at the penalty phase because trial counsel wanted to avoid the jury hearing
the State’s rebuttal mental health expert testimony, including Hall’s paraphilia
diagnosis and his inconsistent statements to the State’s mental health expert.
Presumably, trial counsel did not want to elicit testimony with regard to
Hall’s numerous mental health issues because they did not want to taint the jury’s
mind, rather than supplement their case. Specifically, had trial counsel chosen to
present this testimony, the State would likely have presented their rebuttal expert to
testify about Hall’s mental health issues, including his diagnosis of paraphilia,
which could have significantly damaged the defense’s case, rather than help
explain the inconsistencies in Hall’s confessions.
Attorney Valerino testified at the evidentiary hearing that he filed Hall’s
motion to suppress because he felt obligated to do so upon learning of Hall’s
allegations against the TCI officers, but that the suppression of Hall’s confessions
would have been problematic in light of their anticipated theory of defense. Once
the motion to suppress was denied, trial counsel chose to pursue a different theory
for Hall’s trial than they had during the suppression hearing. Counsel made the
strategic decision not to present the alleged abuse to the jury because they felt that
it was inconsistent with the theory they were presenting. Specifically, at the
evidentiary hearing, Valerino explained:
[State]: But because your ultimate strategy was just that the
State didn’t prove its ultimate case and you were having to rely on
- 32 -
Enoch Hall’s version of events, you didn’t want to really attack his
statements as to any inconsistencies because you were relying on his
statements; is that a fair—
[Attorney Valerino]: Right. And that’s why I didn’t want to
bring up issues about his statement was coerced or things of that
nature because our theory was he freely and voluntarily spoke with
the police.
(Emphasis added.)
Attorney Valerino had a similar explanation for why he chose not to present
evidence to the jury of the effect that fear and head trauma from beatings could
have on memory. He also explained the confession inconsistencies as being due to
Hall’s attempts to clarify his statements as he remembered more about what had
transpired. Thus, counsel justified his reasoning for not presenting evidence of the
injuries to the jury as being a reasonable strategic decision that was consistent with
the theory of defense presented. We conclude that Hall has failed to establish
deficiency in light of the pervasive evidence in the record that trial counsel’s
actions were strategic and reasonable.
CO Evins’ Testimony
Hall’s next claim contends that trial counsel was ineffective for failing to
object to CO Evins’ trial testimony concerning the procedures that he followed
when closing down the PRIDE overtime shift because he was not listed on the
State’s witness list and only testified about the procedures that he personally
- 33 -
followed in closing down PRIDE, rather than those that CO Fitzgerald and all
supervising PRIDE officers followed. We disagree.
Frederick Evins, who testified at trial for the State, worked the overtime shift
at PRIDE around the time of the murder. CO Evins testified as to the procedures
he followed when closing down the PRIDE overtime shift, which included locking
up all tools and offices before closing and searching all inmates before dismissing
them. Evins testified that he noticed that Hall had developed a habit of being the
last inmate to leave PRIDE, but he would never allow an inmate to stay behind
after the supervising officer left. Evins also testified that Hall usually worked
alongside another welder. When Hall was late coming to check out, the other
welder he worked with was, on occasion, also one of the last inmates to check out
of PRIDE.
Deficiency
Hall has failed to establish deficiency for this claim. Competent, substantial
evidence supports the postconviction court’s finding that trial counsel was not
deficient for failing to object to CO Evins’ testimony at trial. The record shows
that, although CO Evins was not listed on the State’s witness list before trial,
attorneys Valerino and Phillips were not surprised by Evins’ testimony because
they had already deposed him for their own mitigation investigation and thus had
knowledge of the substance of his testimony before trial. Moreover, attorney
- 34 -
Valerino testified at the evidentiary hearing that he did not object to CO Evins’
testimony because he “did not feel that his testimony was objectionable.” Attorney
Valerino explained that he would have objected, had he felt that the testimony was
irrelevant or had some valid theory under which to do so.
This Court, in Brown v. State, 846 So. 2d 1114, 1122 (Fla. 2003), agreed
with the trial judge’s finding that counsel was not deficient for failing to object to
the statements made by a witness because he found that counsel’s failures to object
were “trial tactics on his part not to object to what he perceived as very minor
hearsay matters.” Id.5 We ultimately agreed with the trial court that counsel’s
decisions not to object were strategic and thus not deficient, stating:
We concur in the trial court’s evaluation that, considering trial
counsel’s philosophy, it does not appear to be deficient performance
on his part not to object. “Counsel’s strategic decisions will not be
second-guessed on collateral attack.” Johnson v. State, 769 So. 2d
990, 1001 (Fla. 2000) (citing Remeta v. Dugger, 622 So. 2d 452 (Fla.
1993)).
Id.; see also Peterson v. State, 154 So. 3d 275, 280 (Fla. 2014) (counsel is not
deficient for failing to raise a meritless objection).
5. Similarly, the trial court in Brown also found that “counsel was not
deficient in failing to object to the prosecutor’s statements. Noting counsel’s
hearing testimony in which he stated that being judicious with his objections is a
part of his style, in order to avoid antagonizing the jury and losing credibility, the
court found no demonstration of ineffectiveness or prejudice.” Brown, 846 So. 2d
at 1122.
- 35 -
Hall further argues that CO Evins’ testimony was irrelevant because PRIDE
officers received no formal training and there were no administrative procedures
for PRIDE officers to follow. Thus, CO Evins’ testimony only reflected his own
individual closing procedures, rather than those of PRIDE officers as a whole.
This assertion, however, disregards the internal operating practice that, while
PRIDE officers may have received no formal training, training procedures are in
fact informally passed down from previous PRIDE supervisors. This sheds light
on the relevance of CO Evins’ testimony by providing circumstantial evidence of
informal procedures that are passed down from one officer to another. In light of
this informal training, CO Evins’ testimony could reflect the possible procedures
that CO Fitzgerald used to close down PRIDE on the night of the murder, based on
these verbally transmitted training procedures. Thus, we conclude that trial
counsel was not deficient for failing to object to CO Evins’ testimony at trial
because it was a reasonable strategic decision.
Prejudice
Even if counsel was deficient for failing to object to CO Evins’ testimony,
Hall has failed to show that this deficiency prejudiced the outcome of his case.
Had this objection been sustained and Evins’ testimony not been presented to the
jury, the outcome of Hall’s case would likely have been the same because Evins’
brief testimony did not lay any foundation to establish the State’s case of
- 36 -
premeditation. While Hall contends that the lack of this testimony would have
allowed counsel to challenge the State’s theory of premeditation, this again ignores
Hall’s own confession that, after being confronted by CO Fitzgerald in Prince’s
office while Hall was looking for pills, he ran and hid in the welding shed with
Prince’s shank, knowing that she was looking for him, and stabbed her to death
once she found him. Hall’s anticipation that CO Fitzgerald was coming to look for
him alone and unarmed was not what established the State’s theory of
premeditation; rather, Hall’s own rendition of what happened on the night of the
murder established premeditation. Thus, the outcome of Hall’s case would likely
have been the same even without CO Evins’ testimony. Therefore, we conclude
that Hall was not prejudiced by counsel’s failure to object, and this claim of
ineffective assistance fails.
Mitigation Investigation
Hall next asserts that trial counsel were ineffective for failing to adequately
investigate and present mitigating evidence at the penalty phase. We disagree.
Deficiency
First, Hall has failed to establish deficiency. “An attorney has a duty to
conduct a reasonable investigation, including an investigation of the defendant’s
background, for possible mitigating evidence,” but not necessarily to run down
every possible lead. Sochor, 883 So. 2d at 772 (quoting Rose v. State, 675 So. 2d
- 37 -
567, 571 (Fla. 1996)). “Strickland does not require counsel to investigate every
conceivable line of mitigating evidence no matter how unlikely the effort would be
to assist the defendant at sentencing.” Taylor v. State, 3 So. 3d 986, 998 (Fla.
2009) (quoting Wiggins v. Smith, 539 U.S. 510, 533 (2003)). Furthermore, as the
Supreme Court noted in Strickland, “[t]he reasonableness of counsel’s actions may
be determined or substantially influenced by the defendant’s own statements or
actions.” Strickland, 466 U.S. at 691. We have previously concluded that trial
counsel is not ineffective for failing to discover mitigation that the defendant and
his family have concealed. Asay v. State, 769 So. 2d 974, 987-88 (Fla. 2000)
(finding no ineffectiveness for failing to discover that the defendant was sexually
abused when the defendant and his family were not forthcoming with the
information, even though trial counsel was aware of the defendant’s rough
childhood); Diaz v. State, 132 So. 3d 93, 114 (Fla. 2013) (finding no
ineffectiveness for failing to discover information regarding sexual abuse that Diaz
and his family did not disclose).6
6. For additional cases where the defendant either failed to disclose
mitigation or instructed counsel not to conduct a penalty phase investigation, see
Reed v. State, 640 So. 2d 1094, 1097 (Fla. 1994) (“[W]hen a defendant has given
counsel reason to believe that pursuing certain investigations would be fruitless or
even harmful, counsel’s failure to pursue those investigations may not later be
challenged as unreasonable.”) (quoting Strickland, 466 U.S. at 691); Bryan v.
State, 748 So. 2d 1003, 1007 (Fla. 1999) (finding Bryan’s ineffective assistance of
- 38 -
Competent, substantial evidence supports the postconviction court’s finding
that trial counsel’s investigation into Hall’s family background was comprehensive
and thus not deficient. The record supports the assertion that trial counsel,
Investigator Ryan, and Dr. Krop all, whether individually or together, traveled to
Hall’s hometown to interview his family, friends, and old coaches, extensively
searched the Florida Panhandle for any records that could serve as mitigation, and
presented testimony of relatives and friends to the jury to establish mitigation at the
penalty phase. Despite numerous interviews with Hall’s parents and brother, no
information surfaced with regard to adverse consequences related to his mother’s
infidelity, even when Hall’s father was briefly asked about his divorce.
Hall’s current claim exists only because he and his family were not
forthcoming with information concerning his mother’s infidelity and because Hall
specifically asked that Investigator Ryan not contact certain family members.
Nevertheless, trial counsel still provided effective representation by continuing to
investigate other avenues of mitigation, and doing so in such a diligent manner that
they were able to recover records concerning Hall’s alleged rape in Escambia
County Jail, despite encountering numerous hurdles along the way. Cf. Ventura v.
State, 794 So. 2d 553, 570 (Fla. 2001) (finding counsel deficient for relying on the
counsel claim was properly denied because he failed to provide his counsel with
the mitigating facts).
- 39 -
defendant as the sole source for mitigation after the defendant instructed counsel
not to involve his family in his trial).
Hall relies on two cases to show that trial counsel’s mitigation investigation
was not reasonable: Sears v. Upton, 561 U.S. 945 (2010), and Ferrell v. Hall, 640
F.3d 1199 (11th Cir. 2011). We find both of these cases to be distinguishable from
Hall’s case. In Sears, counsel was found deficient for presenting evidence of
Sears’ “ideal” childhood, when Sears was in fact seriously intellectually disabled
and was verbally, physically, and emotionally abused as a child. Sears, 561 U.S. at
946, 948. This is distinguishable from Hall’s case because Hall’s counsel
presented accurate mitigation about his childhood, but simply failed to discover
and present his mother’s infidelity. Moreover, in Ferrell, counsel was deficient
because of a failure to uncover pervasive mental health mitigation, despite clear
signs in the medical and academic records, due to the seriously limited
investigation and questioning by the defense team and mental health expert.
Ferrell, 640 F.3d at 1227-28. Conversely, here, Hall’s defense team conducted
extensive questioning, mental health testing, and investigation without limiting
their search, but were still unsuccessful in uncovering his mother’s infidelity or any
alleged adverse consequences. We conclude that the cases Hall relies on are
inapposite and that trial counsel were not deficient for failing to uncover evidence
of Hall’s mother’s infidelity in light of the comprehensive investigation conducted.
- 40 -
Prejudice
Even if trial counsel was deficient for failing to adequately investigate Hall’s
family history, we hold that Hall has failed to establish prejudice. “To assess [the]
probability [of a different outcome under Strickland], we consider the totality of
the available mitigation evidence—both that adduced at trial, and the evidence
adduced in the [evidentiary hearing]—and reweig[h] it against the evidence in
aggravation.” Sears, 561 U.S. at 955-56 (first, second, and fourth alterations in
original) (quoting Porter v. McCollum, 558 U.S. 30, 41 (2009)). “[T]his Court has
reasoned that where the trial court found substantial and compelling aggravation,
such as commission while under sentence of imprisonment, prior violent felonies,
commission during a burglary, and CCP, there was no reasonable probability that
the outcome would have been different had counsel presented additional mitigation
evidence . . . .” Asay, 769 So. 2d at 988.
In Hall’s case, the trial court found five aggravators: (1) previously
convicted of a felony and under sentence of imprisonment; (2) previously
convicted of another capital felony or of a felony involving the use or threat of
violence to the person; (3) committed to disrupt or hinder the lawful exercise of
any governmental function or the enforcement of laws; (4) especially heinous,
atrocious or cruel; (5) cold, calculated, and premeditated (CCP); (6) the victim of
the capital felony was a law enforcement officer engaged in the performance of his
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or her official duties—merged with aggravator number 3. We later rejected the
CCP aggravator on direct appeal. However, each of the four remaining
aggravators were afforded great weight or very great weight. Given the significant
aggravators found against Hall, and the comparatively weak mitigation found, it is
unlikely that evidence of Hall’s mother’s infidelity, and Hall’s alleged resulting
hostility towards women, would have sufficed to outweigh the established
aggravation. Therefore, we conclude that Hall’s case was not prejudiced by trial
counsel’s failure to further investigate and present Hall’s family background.
Failure to Present Dr. Krop
Hall’s next claim contends that trial counsel were ineffective for failing to
present the expert mental health testimony of Dr. Krop during the penalty phase.
We disagree.
Deficiency
Hall has failed to establish deficiency with regard to this claim. Competent,
substantial evidence supports the postconviction court’s finding that trial counsel
was not deficient for failing to call Dr. Krop to testify as to mental mitigation in
light of his negative testimony about Hall and the potential for the jury’s exposure
to even more negative evidence through the State’s rebuttal expert.
After the jury returned Hall’s guilty verdict, the State’s rebuttal expert, Dr.
Danziger, interviewed Hall. In preparation for his final meeting with Hall, Dr.
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Krop reviewed Danziger’s interview and identified several inconsistencies in the
statements made by Hall to both experts, such as his motive for pulling CO
Fitzgerald’s pants down and how many pills he had ingested on the night of the
murder. When confronted with these inconsistencies, Hall admitted that he had
considered raping Fitzgerald after he had killed her. Attorney Phillips met with
appellate attorney Chris Quarles and Dr. Krop to discuss whether these new
statements changed Dr. Krop’s testimony. In his memo to the file, Dr. Krop
explained:
The following is a summary of a “strategy” meeting involving Mr.
Hall’s attorneys, Dr. Buffington, and myself held on October 27th,
2009. Based on extensive discussion, it was decided that testimony
from this expert would most likely be detrimental to Mr. Hall in that
the negatives would far outweigh any possible assistance.
Ultimately, the defense team made the decision not to present Dr. Krop, in light of
Hall’s harmful statements and Dr. Danziger’s opinion that Hall was malingering
and had paraphilia, not otherwise specified.
Hall relies on a number of cases in support of his assertion that counsel’s
actions concerning Dr. Krop were unreasonable. However, the cases presented fail
to address the issue of whether counsel’s strategic decision not to present mental
mitigation was reasonable under the circumstances. Instead, the cases Hall relies
on in support of his claim involve situations where counsel failed to investigate or
develop any mental mitigation, despite the clear warnings that this mitigation
- 43 -
existed. Hildwin,7 Orme,8 and Willacy9 all involve the total failure of counsel to
investigate mental health mitigation that existed and the resulting failure to present
this mitigation to the jury, rather than counsel’s strategic decision not to call
certain potentially harmful witnesses. Duncan10 involved trial counsel failing to
call his previously hired mental health expert to testify as to mental mitigation.
Unlike in Hall’s case, the Court in Duncan found no evidence in the record to
support the failure to present this mental health expert, nor could counsel justify
his decision not to do so at the evidentiary hearing. Duncan, 894 So. 2d at 825-26.
Conversely, counsel in the present case made the strategic decision not to
present Dr. Krop during the penalty phase based on Krop’s damaging testimony
about Hall’s inconsistent statements to the State’s mental health expert, his
statements that he considered raping CO Fitzgerald after he murdered her, his
statements that he was plotting to escape with CO Fitzgerald’s uniform, and his
varying statements concerning how many pills he consumed on the day of the
murder. Counsel’s ultimate decision was not unreasonable based on the evidence
in the record and the testimony from the evidentiary hearing; rather, it was a
7. Hildwin v. Dugger, 654 So. 2d 107 (Fla. 1995).
8. Orme v. State, 896 So. 2d 725 (Fla. 2005).
9. Willacy v. State, 967 So. 2d 131 (Fla. 2007).
10. State v. Duncan, 894 So. 2d 817 (Fla. 2004).
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calculated decision aimed at avoiding exposing the jury to further damaging
testimony that could be considered additional aggravation.
We hold that Hall’s case is more comparable to that of Gaskin v. State, 822
So. 2d 1243 (Fla. 2002), because in Gaskin, the expert similarly warned trial
counsel that his testimony would likely be damaging due to Gaskin’s extensive
criminal history, sexual deviancy, and lack of remorse. Id. at 1248. Counsel in
Gaskin assessed the pros and cons of presenting the expert in light of his damaging
testimony and ultimately decided not to use the witness due to the risk that the jury
would consider Gaskin’s negative past as aggravation. Id. In Gaskin, we found
this to be a reasonable strategic decision because counsel did, in fact, conduct a
diligent mental health mitigation investigation, but later made the strategic decision
not to present that mitigation witness to the jury. Id.Trial counsel will not be held to be deficient when she makes a
reasonable strategic decision not to present mental mitigation
testimony during the penalty phase because it could open the door to
other damaging testimony. See Ferguson v. State, 593 So. 3d 508,
510 (Fla. 1992) (finding that counsel’s decision to not put on mental
health experts was a “reasonable strategy in light of the negative
aspects of the expert testimony” because the experts had indicated that
they thought that the defendant was malingering, a sociopath, and a
very dangerous person).
Id. at 1248. We conclude that the decision on this expert witness was a reasonable
strategic decision, in light of the circumstances, and hold that Hall has failed to
establish deficiency.
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Prejudice
Hall has also failed to establish prejudice for this claim. Due to the
significant aggravation in Hall’s case, there is no reasonable probability that Dr.
Krop’s testimony regarding his mental health diagnoses would have outweighed
the substantial and compelling aggravation. It is more likely that the jury would
have heard Dr. Krop’s testimony and the State’s rebuttal mental health expert’s
testimony and decided that the testimony justified finding further aggravation.
Therefore, we conclude that trial counsel’s failure to call Dr. Krop to present
evidence that would include damaging mental evidence did not prejudice the
outcome of Hall’s case and Hall’s claim thus fails.
Extreme Mental and Emotional Disturbance Instruction
Hall’s next claim contends that trial counsel were ineffective for failing to
request the statutory mitigating instruction of extreme mental and emotional
disturbance. We disagree.
Deficiency
Hall has failed to establish trial counsel’s deficiency with regard to this
claim. Competent, substantial evidence supports the postconviction court’s finding
that trial counsel was not deficient for failing to request the statutory mitigating
instruction for extreme mental and emotional disturbance. We have previously
held:
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[T]he “Defendant is entitled to have the jury instructed on the rules of
law applicable to this theory of the defense if there is any evidence to
support such instructions.” Hooper v. State, 476 So. 2d 1253, 1256
(Fla. 1985), cert. denied, 475 U.S. 1098 (1986) (emphasis added);
Smith v. State, 492 So. 2d 1063 (Fla. 1986). Regarding mitigating
factors dealing with extreme mental or emotional disturbance, we
have stated that where a defendant has produced any evidence to
support giving instructions on such mitigating factors, the trial judge
should read the applicable instructions to the jury. Toole v. State, 479
So. 2d 731 (Fla. 1985).
Bryant v. State, 601 So. 2d 529, 533 (Fla. 1992) (emphasis in original) (footnote
omitted).
The State and the postconviction court correctly compare Hall’s case to
Nelson v. State, 43 So. 3d 20 (Fla. 2010), where trial counsel was not found to be
ineffective for failing to request the statutory mitigating instruction of extreme
mental or emotional disturbance because it was a reasonable tactical decision based
on counsel’s concern that the State would successfully argue that this mitigation
was not established. Id. at 32. Postconviction counsel in Nelson attempted to
argue that trial counsel’s strategy was not reasonable because it was based on
ignorance of controlling case law. Id.Similarly, here, Hall alleges that counsel’s failure to request this mitigating
instruction was also based on ignorance rather than strategy. However, the record
reflects otherwise. As discussed above, counsel made a strategic decision not to
present Dr. Krop to address mental mitigation. Furthermore, Dr. Buffington’s
testimony at the penalty phase was limited only to the potential side effects that
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Tegretol could produce, although counsel had originally hoped that Dr. Buffington
would also testify that Tegretol may have unmasked Hall’s underlying mental
illness on the night of the murder. Consequently, counsel did not have the
predicate evidence needed to support the request for the statutory mitigating
instruction of extreme mental and emotional disturbance and thus decided to use
the “catch all” instruction under the circumstances. See Looney v. State, 941 So.
2d 1017, 1030 (Fla. 2006) (“[S]trategic decisions do not constitute ineffective
assistance of counsel if alternative courses have been considered and rejected and
counsel’s decision was reasonable under the norms of professional conduct.”
(quoting Howell v. State, 877 So. 2d 697, 703 (Fla. 2004))). Therefore, we
conclude that Hall has failed to establish trial counsel’s deficiency for failing to
request this statutory mitigating instruction.
Prejudice
Even if counsel were deficient in failing to request the statutory mitigating
instruction of extreme mental or emotional disturbance, Hall has also failed to
establish prejudice. Competent, substantial evidence supports the postconviction
court’s conclusion that this failure did not prejudice Hall. Even if the instruction
had been given, the outcome in Hall’s case still would not have changed because
the State presented significant evidence to disprove that Hall was under any mental
or emotional disturbance on the night of the murder. Thus, Hall cannot establish a
- 48 -
reasonable probability that this instruction would have changed the jury’s decision
to recommend the death penalty and our confidence is not undermined. Moreover,
as discussed above, given the substantial aggravation found in Hall’s case, it is
highly unlikely that the finding of the extreme mental or emotional disturbance
mitigator would have shifted the balance of the significant aggravation. Therefore,
we find that Hall has failed to establish that the outcome of his case was prejudiced
by the lack of this instruction and thus this claim fails.
Hall’s Medical History
Hall’s next claim argues that trial counsel were ineffective for failing to
bring Hall’s medical history of epilepsy to Dr. Krop’s attention through Hall’s
Department of Corrections (DOC) medical records, where he self-reported
experiencing a seizure in 2002, despite having no medical documentation of any
seizures in his records since 1995. Hall claims that trial counsel’s failure to
explicitly point this fact out to Dr. Krop amounted to ineffective assistance of
counsel. We disagree.
Deficiency
First, we conclude that Hall has failed to establish deficiency with regard to
this claim. We note that Hall’s brief merely incorporates the arguments made
under Issues 2, 4, and 5, rather than providing any independent analysis to support
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this claim.11 Due to our conclusions above, we similarly conclude here that Hall
has failed to establish either deficiency or prejudice. Additionally, because Hall
did not present Dr. Krop to testify at the postconviction hearing as to what
evidence he did or did not consider in his analysis, Hall has failed to meet his
burden of proof on this issue. Nevertheless, in reviewing this claim on the merits,
we hold that competent, substantial evidence supports the postconviction court’s
finding that counsel was not deficient because Dr. Krop had the information at
issue and there is no evidence that he did not consider this information in making
his report.
Hall has provided no evidence in support of his claim that Dr. Krop failed to
review and consider Hall’s previous diagnoses of epilepsy and psychosis in making
his findings. Furthermore, the record shows that counsel provided Dr. Krop with
11. While we have nonetheless analyzed this claim, this Court has
previously commented on parties’ failure to offer arguments in support of their
claims. As we explained in Bradley, 33 So. 3d at 685,
vague and conclusory allegations are insufficient to warrant relief.
See Doorbal v. State, 983 So. 2d 464, 482 (Fla. 2008) (“[T]o merely
refer to arguments presented during the postconviction proceedings
without further elucidation is not sufficient . . . and these claims are
deemed to have been waived.”); Thompson v. State, 759 So. 2d 650,
668 (Fla. 2000) (denying habeas claim, in part, as legally insufficient
because defendant made only a conclusory statement without specific
supporting facts). The purpose of a legal brief is to offer argument in
support of the issues raised on appeal. See Doorbal, 983 So. 2d at
482.
- 50 -
all of Hall’s medical records, including the DOC records that reflected Hall’s
report of a 2002 seizure. Hall now attempts to present Dr. Maher’s more favorable
diagnosis of epilepsy in support of his claim of ineffective assistance of counsel.
Based on counsel’s comprehensive investigation in developing mitigation and the
fact that Dr. Krop had the records that Hall now claims were disregarded, we hold
that Hall’s claim of deficiency is meritless.
Prejudice
Furthermore, Hall has failed to establish prejudice. Competent, substantial
evidence supports the postconviction court’s findings that trial counsel’s actions
did not prejudice Hall. Hall’s current claim seemingly ignores the fact that counsel
chose not to have Dr. Krop testify at the penalty phase, due to his unfavorable
testimony with regard to the inconsistent statements Hall made to Dr. Danziger,
Hall’s paraphilia disorder, and his statement that he considered raping CO
Fitzgerald after he murdered her. In light of this fact, Hall cannot demonstrate that
he was prejudiced by the allegedly flawed investigation because Dr. Krop’s
testimony would not have been presented to the jury regardless. None of the
additional evidence that Hall uses to justify his claim would dispel trial counsel’s
concerns with regard to Dr. Krop’s potentially harmful testimony. Further, Hall’s
diagnoses of epilepsy and psychosis were disputed by the State’s mental health
expert, Dr. Danziger. Hall simply has provided no evidence to support his
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argument that this testimony reasonably could have caused the jury to recommend
a life sentence rather than the death penalty. Therefore, we conclude that Hall has
failed to establish prejudice under Strickland in light of both the analysis in this
section and our conclusions in the issues discussed above.
Cumulative Error
Hall further contends that the postconviction court erred in finding that he
was not deprived of a fair trial as a result of cumulative errors during both the guilt
and penalty phases. We disagree. This Court has repeatedly held that, “where the
individual claims of error alleged are either procedurally barred or without merit,
the claim of cumulative error also necessarily fails.” See Israel v. State, 985 So. 2d
510, 520 (Fla. 2008) (quoting Parker v. State, So. 2d 370, 380 (Fla. 2005)); see
also Griffin v. State, 866 So. 2d 1, 22 (Fla. 2003). In addition, individual claims
that fail to meet the Strickland standard for ineffective assistance of counsel are
also insufficient to establish cumulative error. See Israel, 985 So. 2d at 520.
As discussed above, Hall has failed to demonstrate that the postconviction
court erred in finding that no Strickland error occurred. As a result, Hall has not
alleged a proper basis for cumulative error.
Incompetence at the Time of Execution
Hall asserts that his Eighth Amendment right under the United States
Constitution against cruel and unusual punishment will be violated because he may
- 52 -
be incompetent at the time of execution. We find that this claim is not ripe for
consideration. Individuals who lack the mental capacity to understand their
pending execution and the reasons for it cannot be executed. Fla. R. Crim. P.
3.811; see Barnes v. State, 124 So. 3d 904, 918 (Fla. 2013). However, claims of
future incompetence are not ripe for decision until a death warrant has been issued
for a given individual. See Fla. R. Crim. P. 3.811(c) (“No motion for a stay of
execution pending hearing, based on grounds of the prisoner’s insanity to be
executed, shall be entertained by any court until such time as the Governor of
Florida shall have held appropriate proceedings for determining the issue pursuant
to the appropriate Florida Statutes.”); Barnes, 124 So. 3d at 918 (“We have
repeatedly held that this claim may not be asserted until a death warrant has been
issued.”); Israel, 985 So. 2d at 521-22 (“Israel conceded that this claim is not ripe
for review . . . . He contends that he is only raising this issue for preservation
purposes. This Court has repeatedly found that no relief is warranted on similar
claims.”). No warrant has been signed in this case. We therefore reject Hall’s
claim as not ripe for review.
Petition for Writ of Habeas Corpus
Constitutionality of Section 921.141, Florida Statutes (2008)
In his habeas petition, Hall first asserts that appellate counsel was ineffective
for failing to challenge the constitutionality of section 921.141, Florida Statutes
- 53 -
because: (1) it is facially vague and overbroad in violation of the Eighth and
Fourteenth Amendments to the United States Constitution, and (2) the trial court’s
instructions to the jury unconstitutionally diluted its sense of responsibility in
determining the proper sentence. We disagree.
Claims of ineffective assistance of appellate counsel are appropriately
presented in a petition for writ of habeas corpus. See Freeman v. State, 761 So. 2d
1055, 1069 (Fla. 2000). Consistent with the Strickland standard, to grant habeas
relief based on ineffectiveness of counsel, this Court must determine
first, whether the alleged omissions are of such magnitude as to
constitute a serious error or substantial deficiency falling measurably
outside the range of professionally acceptable performance and,
second, whether the deficiency in performance compromised the
appellate process to such a degree as to undermine confidence in the
correctness of the result.
Pope v. Wainwright, 496 So. 2d 798, 800 (Fla. 1986); see also Freeman, 761 So.
2d at 1069; Thompson, 759 So. 2d at 660. In raising such a claim, “[t]he defendant
has the burden of alleging a specific, serious omission or overt act upon which the
claim of ineffective assistance of counsel can be based.” Freeman, 761 So. 2d at
1069; see also Knight v. State, 394 So. 2d 997, 1001 (Fla. 1981). Claims of
ineffective assistance of appellate counsel may not be used to camouflage issues
that should have been presented on direct appeal or in a postconviction motion.
See Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000).
- 54 -
With regard to challenges to the standard jury instructions in death penalty
cases, this Court has repeatedly held that
challenges to “the standard jury instructions that refer to the jury as
advisory and that refer to the jury’s verdict as a recommendation
violate Caldwell v. Mississippi, 472 U.S. 320 (1985)” are without
merit. Card v. State, 803 So. 2d 613, 628 (Fla. 2001); see also Brown
v. State, 721 So. 2d 274, 283 (Fla. 1998) (holding that the standard
jury instructions fully advise the jury of the importance of its role,
correctly state the law, do not denigrate the role of the jury, and do not
violate Caldwell); Rose v. State, 617 So. 2d 291, 297 (Fla. 1993)
(rejecting the claim that the sentencing jury was misled by instructions
and argument that diluted their sense of responsibility pursuant to the
rationale of Caldwell and that counsel was ineffective for failing to
object because the jury instructions correctly informed the jury of its
sentencing role); Mendyk v. State, 592 So. 2d 1076, 1080-81 (Fla.
1992) (rejecting Mendyk’s position that counsel was ineffective for
failing to object to an alleged Caldwell violation).
Dufour, 905 So. 2d at 67.
“If a legal issue ‘would in all probability have been found to be without
merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel
to raise the meritless issue will not render appellate counsel’s performance
ineffective.” Id. at 71 (quoting Rutherford, 774 So. 2d at 643). Due to the clear
and extensive case law that establishes that claims challenging the constitutionality
of the standard jury instructions, as they apply to the jury’s advisory role, are
entirely without merit, we conclude that appellate counsel was not ineffective for
failing to raise this meritless claim and thus deny Hall relief on this claim.
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Florida’s Unconstitutional Capital Sentencing Scheme
During the pendency of Hall’s postconviction appeal, the United States
Supreme Court issued Hurst v. Florida, 136 S. Ct. 616 (2016), in which it held that
Florida’s capital sentencing scheme violated the Sixth Amendment. Id. at 621.
The Supreme Court in Hurst concluded that “[t]he Sixth Amendment requires a
jury, not a judge, to find each fact necessary to impose a sentence of death. A
jury’s mere recommendation is not enough.” 136 S. Ct. at 619. On remand from
the Supreme Court, we held that “before a sentence of death may be considered by
the trial court in Florida, the jury must find the existence of the aggravating factors
proven beyond a reasonable doubt, that the aggravating factors are sufficient to
impose death, and that the aggravating factors outweigh the mitigating
circumstances.” Hurst v. State, 202 So. 3d 40, 53 (Fla. 2016). We further held that
a unanimous jury recommendation is required before a trial court may impose a
sentence of death. See id. at 53-54. Finally, this Court determined that Hurst error
is capable of harmless error review. See id. at 67. Recently, in Mosley v. State, 41
Fla. L. Weekly S629 (Fla. Dec. 22, 2016), we further held that our decision in
Hurst v. State applies retroactively to those postconviction defendants whose
sentences were final after the United States Supreme Court’s 2002 decision in Ring
v. Arizona, 536 U.S. 584 (2002). See Mosley, 41 Fla. L. Weekly at S638 (“We
conclude that . . . Hurst [v. State] should be applied to . . . defendants whose
- 56 -
sentences became final after the United States Supreme Court issued its opinion in
Ring.”).
Accordingly, because Hall’s sentence became final on October 7, 2013,
when the United States Supreme Court denied Hall’s petition for certiorari, Hall,
134 S. Ct. 203, we must consider whether any Hurst error during Hall’s penalty
phase proceedings was harmless beyond a reasonable doubt. In Hurst v. State, this
Court explained the standard by which harmless error should be evaluated:
Where the error concerns sentencing, the error is harmless only if
there is no reasonable possibility that the error contributed to the
sentence. See, e.g., Zack v. State, 753 So. 2d 9, 20 (Fla. 2000).
Although the harmless error test applies to both constitutional errors
and errors not based on constitutional grounds, “the harmless error
test is to be rigorously applied,” [State v.] DiGuilio, 491 So. 2d
[1129,] 1137 [Fla. 1986], and the State bears an extremely heavy
burden in cases involving constitutional error. Therefore, in the
context of a Hurst error, the burden is on the State, as the beneficiary
of the error, to prove beyond a reasonable doubt that the jury’s failure
to unanimously find all the facts necessary for imposition of the death
penalty did not contribute to Hurst’s death sentence in this case. We
reiterate:
The test is not a sufficiency-of-the-evidence, a correct
result, a not clearly wrong, a substantial evidence, a more
probable than not, a clear and convincing, or even an
overwhelming evidence test. Harmless error is not a
device for the appellate court to substitute itself for the
trier-of-fact by simply weighing the evidence. The focus
is on the effect of the error on the trier-of-fact.
DiGuilio, 491 So. 2d at 1139. “The question is whether there is a
reasonable possibility that the error affected the [sentence].” Id.
- 57 -
Id. at 68 (third alteration in original). Finally, in Davis v. State, 41 Fla. L. Weekly
S528 (Fla. Nov. 10, 2016), we determined that a Hurst error was harmless beyond
a reasonable doubt and reiterated that “[a]s applied to the right to a jury trial with
regard to the facts necessary to impose the death penalty, it must be clear beyond a
reasonable doubt that a rational jury would have unanimously found that there
were sufficient aggravating factors that outweighed the mitigating circumstances.”
Id. at S539.
When the jury recommended that Hall be sentenced to death, it did not make
specific factual findings with regard to the existence of any aggravating
circumstances, nor did it make any findings with regard to the relative weight of
the aggravating and mitigating circumstances. Therefore, we conclude that Hall’s
sentence was contrary to Hurst v. Florida.
However, as in Davis, we conclude that this is one of those rare cases in
which the Hurst error was harmless beyond a reasonable doubt. We initially must
emphasize the unanimous jury recommendation of death in this case. This
unanimous recommendation lays a foundation for us to conclude beyond a
reasonable doubt that a rational jury would have unanimously found that there
were sufficient aggravators to outweigh the mitigating factors. The instructions
that were given informed the jury that it needed to determine whether sufficient
aggravators existed and whether any aggravation outweighed the mitigation before
- 58 -
it could recommend a sentence of death. See Fla. Std. Jury Instr. (Crim.) 7.11
(2009) (“[T]he final decision as to what punishment shall be imposed is the
responsibility of the judge; however, it is your duty to follow the law that will now
be given you by the court and render to the court an advisory sentence based upon
your determination as to whether sufficient aggravating circumstances exist to
justify the imposition of the death penalty and whether sufficient mitigating
circumstances exist to outweigh any aggravating circumstances found to exist.”).12
12. The jury was also presented with evidence of mitigating circumstances
and was properly informed that it could consider mitigating circumstances if it was
reasonably convinced that the mitigating circumstances existed. See Fla. Std. Jury
Instr. (Crim.) 7.11 (2009) (“A mitigating circumstance need not be proved beyond
a reasonable doubt by the defendant. If you are reasonably convinced that a
mitigating circumstance exists, you may consider it as established.”). Although the
standard jury instructions used in Hall’s case were different from the ones
currently in place, we explained the 2009 amendments to the burden of proof for
mitigating circumstances as follows:
Although the current and proposed instructions provide that the jury
need only be “reasonably convinced” that a mitigating circumstance
exists, our case law has stated this burden in terms of the greater
weight of the evidence or in terms of a preponderance of the evidence
which are synonymous. We conclude that the better terminology for
this standard is the more widely accepted “greater weight of the
evidence,” which means “more likely than not,” and we have made
the appropriate changes in the instruction.
In re Standard Jury Instructions in Criminal Cases – Report No. 2005-2, 22 So. 3d
17, 21 (Fla. 2009) (citations omitted).
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Even though the jury was not informed that the finding that sufficient
aggravating circumstances outweighed the mitigating circumstances must be
unanimous, and even though it was instructed that it was not required to
recommend death even if the aggravators outweighed the mitigators, the jury did in
fact recommend death unanimously. See id. (“Should you find sufficient
aggravating circumstances do exist, it will then be your duty to determine whether
mitigating circumstances exist that outweigh the aggravating circumstances.”);
Trial T. 3593 (“Regardless of your findings with respect to aggravating and
mitigating circumstance, you are never compelled nor required to recommend a
sentence of death.”). From these instructions, we conclude that the jury
unanimously made the requisite factual findings to impose death before it issued
the unanimous recommendation. Further supporting our conclusion that any Hurst
error here was harmless are the egregious facts of this case—Hall, who was
already imprisoned for four different rapes, hid from a corrections officer while
armed with a shank, stabbed her twenty-two times when she found him, cracking
multiple ribs and puncturing her heart, and then moved her body to a different
location, bent her over a paint cart, and pulled down her pants and underwear. The
evidence in support of the four aggravating circumstances13 found as to CO
13. (1) Previously convicted of a felony and under sentence of
imprisonment; (2) previously convicted of another capital felony or of a felony
involving the use or threat of violence to the person; (3) committed to disrupt or
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Fitzgerald’s death was significant and essentially uncontroverted. Three of the
four aggravators were without and beyond dispute.
Presuming that the jury did its job as instructed by the trial court, we are
convinced that it would have still found that the aggravators greatly outweighed
the mitigators in this case. Indeed, it is inconceivable that a jury would not have
found the aggravation in Hall’s case unanimously, especially given the fact that
three of the aggravators found were automatic (i.e., under sentence of
imprisonment, previously convicted of another violent felony, and the victim was a
law enforcement officer).
Furthermore, Hall’s claim that Florida’s capital sentencing scheme is
unconstitutional because it creates a presumption of death in any case where a
single aggravator applies is also meritless.
This Court has rejected the argument that Florida’s capital sentencing
scheme is unconstitutional because it provides for an automatic
aggravating circumstance and neither “narrow[s] the class of persons
eligible for the death penalty” nor “reasonably justif[ies] the
imposition of a more severe sentence on the defendant compared to
others found guilty of murder.” Parker v. State, 873 So. 2d 270, 286
n.12 (Fla. 2004) (alterations in original) (quoting Zant v. Stephens,
462 U.S. 862, 877 (1983)); see Blanco v. State, 706 So. 2d 7, 11 (Fla.
1997). As this Court pointed out in Blanco, this claim is meritless:
hinder the lawful exercise of any governmental function or the enforcement of
laws; (4) especially heinous, atrocious or cruel; and (5) the victim of the capital
felony was a law enforcement officer engaged in the performance of his or her
official duties, which was merged with aggravator number 3.
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Eligibility for this aggravating circumstance is not
automatic: The list of enumerated felonies in the
provision defining felony murder is larger than the list of
enumerated felonies in the provision defining the
aggravating circumstance of commission during the
course of an enumerated felony.
Id. at 11 (footnote omitted); see also Francis v. State, 808 So. 2d 110,
136 (Fla. 2001).
Miller’s other claims have previously been held to be meritless.
See Proffitt v. Florida, 428 U.S. 242, 255-56 (1976) (upholding
constitutionality of Florida’s death penalty statute against multiple
challenges, including challenge [sic] based on vagueness and
overbreadth of aggravating and mitigating circumstances and the lack
of guidance for the jury in weighing such factors); Lugo v. State, 845
So. 2d 74, 119 (Fla. 2003) (reiterating that this Court has “rejected the
claim that the death penalty system is unconstitutional as being
arbitrary and capricious because it fails to limit the class of persons
eligible for the death penalty”).
Miller v. State, 926 So. 2d 1243, 1260 (Fla. 2006). Therefore, we deny Hall’s
claims relating to the unconstitutionality of the death penalty, and specifically hold
that any Hurst error with regard to Hall’s sentence, which was based upon a
unanimous recommendation of death, is harmless beyond a reasonable doubt.
CONCLUSION
For the reasons discussed, we affirm the postconviction court’s denial of
Hall’s postconviction motion and deny his petition for a writ of habeas corpus.
It is so ordered.
LABARGA, C.J., and LEWIS, J., concur.
PARIENTE, CANADY, and POLSTON, JJ., concur in result.
QUINCE, J., concurs in part and dissents in part with an opinion.
LAWSON, J., did not participate.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
QUINCE, J., concurring in part and dissenting in part.
I agree with the majority’s decision to affirm the postconviction court’s
denial of Hall’s postconviction motion. I dissent, however, to the decision to deny
Hall’s petition for a writ of habeas corpus and would find that the Hurst error in
this case was not harmless beyond a reasonable doubt.
In Hurst v. State, 202 So. 2d 40 (Fla. 2016), we held that for a defendant to
be eligible for the death sentence, a jury must unanimously find the existence of
each aggravating factor, that the aggravating factors are sufficient, and that the
aggravating factors outweigh the mitigating circumstances. Hurst, 202 So. 3d at
44. Additionally, we held that the jury’s death sentence recommendation must be
unanimous. Id. While I agreed in Hurst that errors under Hurst v. Florida, 136 S.
Ct. 616 (2016), are subject to harmless error review, see Hurst, 202 So. 3d at 68, I
do not believe that we can ever find Hurst error harmless when there are
aggravating circumstances that require a factual determination based on evidence
presented to the jury. Because Hurst requires “a jury, not a judge, to find each fact
necessary to impose a sentence of death,” Hurst v. Florida, 136 S. Ct. at 619, the
error cannot be harmless where such a factual determination was not made.
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The aggravating circumstances in this case were: (1) Hall was previously
convicted of a felony and under sentence of imprisonment; (2) Hall was previously
convicted of another capital felony or of a felony involving the use or threat of
violence to the person; (3) the murder was committed to disrupt or hinder the
lawful exercise of any governmental function or the enforcement of laws; (4) the
murder was especially heinous, atrocious or cruel; and (5) the victim of the capital
felony was a law enforcement officer engaged in the performance of his or her
official duties, which was merged with aggravator number 3. Three of these
aggravators are established without a factual determination by the jury, but the
remaining aggravators each required factual findings that, under Hurst, must now
be considered and weighed by a jury. As we stated in Hurst, without an
interrogatory verdict, we cannot determine which aggravators the jury
unanimously found beyond a reasonable doubt. See Hurst, 202 So. 3d at 67.
In Hurst, we declined to speculate why the jurors voted the way they did, yet
because here the jury vote was unanimous, the majority is comfortable determining
that “it is inconceivable that a jury would not have found the aggravation in Hall’s
case unanimously, especially given the fact that three of the aggravators found
were automatic.” Maj. op. at 61. Even though the jury unanimously recommended
the death penalty, whether the jury unanimously found each aggravating factor
remains unknown.
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The majority’s reweighing of the evidence to support its conclusion is not an
appropriate harmless error review. The harmless error review is not a sufficiency
of the evidence test and the majority’s analysis should instead focus on the effect
of the error on the trier of fact. See State v. DiGuilio, 491 So. 2d 1129, 1139 (Fla.
1986). By ignoring the record and concluding that all aggravators were
unanimously found by the jury, the majority is engaging in the exact type of
conduct the United States Supreme Court cautioned against in Hurst v. Florida.
See Hurst v. Florida, 136 S. Ct. at 622. Because the harmless error review is not a
sufficiency of the evidence review nor “a device for the appellate court to
substitute itself for the trier-of-fact by simply weighing the evidence,” DiGuilio,
491 So. 2d at 1139, I conclude that the error here was harmful.
Two Cases:
An Appeal from the Circuit Court in and for Volusia County,
Joseph David Walsh, Judge - Case No. 642008CF033412XXXAES
And an Original Proceeding – Habeas Corpus
James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, Middle Region,
and Ann Marie Mirialakis, Richard Edward Kiley, and Ali Andrew Shakoor,
Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace,
Florida,
for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Stacey E. Kircher,
Assistant Attorney General, Daytona Beach, Florida,
for Appellee/Respondent
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