Florida Criminal Law Opinions

BILLY LEON KEARSE, Appellant, vs. STATE OF FLORIDA, Appellee. BILLY LEON KEARSE, Petitioner, vs. JAMES R. MCDONOUGH, etc., Respondent.

No. SC05-1876, No. SC06-942

SUPREME COURT OF FLORIDA

August 30, 2007, Decided

NOTICE:

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

PRIOR HISTORY: [*1]

An Appeal from the Circuit Court in and for St Lucie County, Marc A. Cianca, Senior Judge – Case No. 561991CF000136A; And an Original Proceeding — Habeas Corpus.
Kearse v. State, 770 So. 2d 1119, 2000 Fla. LEXIS 1291 (Fla., 2000)

COUNSEL: Neal A. Dupree, Capital Collateral Regional Counsel, Paul Kalil and Christina L. Spudeas, Assistant CCRC-South, Fort Lauderdale, Florida, for Appellant/Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, Florida, for Appellee/Respondent.

JUDGES: LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

OPINION

PER CURIAM.

Billy Leon Kearse appeals an order of the circuit court denying his motion to vacate his first-degree murder conviction and sentence of death, and also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. As we explain below, we affirm the circuit court’s order and deny Kearse’s petition.

I. FACTS AND PROCEDURAL BACKGROUND

Kearse was convicted of robbery with a firearm and the first-degree murder of Fort Pierce police officer, Danny Parrish. On direct appeal, we summarized the facts of the crime as follows:

After Parrish observed Kearse driving in the wrong direction [*2] on a one-way street, he called in the vehicle license number and stopped the vehicle. Kearse was unable to produce a driver’s license, and instead gave Parrish several alias names that did not match any driver’s license history. Parrish then ordered Kearse to exit the car and put his hands on top of the car. While Parrish was attempting to handcuff Kearse, a scuffle ensued, Kearse grabbed Parrish’s weapon and fired fourteen shots. Thirteen of the shots struck Parrish, nine in his body and four in his bullet-proof vest. A taxi driver in the vicinity heard the shots, saw a dark blue vehicle occupied by a black male and female drive away from the scene, and called for assistance on the police officer’s radio. Emergency personnel transported Parrish to the hospital where he died from the gunshot injuries.

The police issued a be-on-the-lookout (BOLO) for a black male driving a dark blue 1979 Monte Carlo. By checking the license plate that Officer Parrish had called in, the police determined that the car was registered to an address in Fort Pierce. Kearse was arrested at that address. After being informed of his rights and waiving them, Kearse confessed that he shot Parrish during a struggle [*3] that ensued after the traffic stop.Kearse v. State, 662 So. 2d 677, 680 (Fla. 1995) (Kearse I). We affirmed as to Kearse’s guilt phase claims, but remanded for a new penalty phase based on errors “relate[d] to the penalty phase instructions and the improper doubling of aggravating circumstances.” Id. at 685. n1

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Most of the twenty-five issues Kearse raised on appeal concerned the penalty phase. Kearse I, 662 So. 2d at 680-81. The guilt phase issues alleged error as follows: (1) the giving of the State’s special instruction on premeditated murder over objection; (2) the instruction to the jury on escape as the underlying felony of felony murder; (3) the denial of Kearse’s cause challenges to prospective jurors; (4) the admission of testimony regarding the purpose of a two-handed gun grip; (5) the denial of motions to suppress; (6) the instruction on reasonable doubt denied Kearse due process and a fair trial; and (7) the admission of hearsay evidence during the guilt phase.
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After the new penalty phase, the unanimous jury recommended death, and the trial court again sentenced Kearse to death. Kearse v. State, 770 So. 2d 1119 (Fla. 2000) (Kearse II), cert. denied, 532 U.S. 945, 121 S. Ct. 1411, 149 L. Ed. 2d 352 (2001). The [*4] trial court found in aggravation that the crime was committed in the course of a robbery, which it afforded “diminished” weight, and found three other aggravating factors that it merged into one-that the murder was committed to avoid arrest and to hinder law enforcement, and that the victim was a law enforcement officer engaged in official duties. The court found one statutory mitigating factor–the age of the defendant–and listed almost forty nonstatutory mitigators to which the court assigned some weight. On appeal, Kearse raised twenty-two issues. Id. at 1123. n2 We affirmed the death sentence. Id. at 1135.

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Kearse raised the following claims: (1) the trial court’s refusal to return venue to the county where the offense occurred; (2) the denial of Kearse’s objection to a motion to compel a mental health examination; (3) the denial of Kearse’s motion for a continuance; (4) the proportionality of the death penalty; (5) the trial court’s evaluation of the mitigating circumstances; (6) the trial court’s failure to find the statutory mitigating circumstance of emotional or mental disturbance; (7) the denial of Kearse’s motion to disqualify the prosecutor; (8) the denial of Kearse’s motion [*5] for mistrial based on the prosecutor’s comments; (9) the trial court informed the jury that Kearse had been found guilty in a previous proceeding, but that the case was remanded for resentencing; (10) the denial of Kearse’s motion to interview jurors to determine juror misconduct; (11) pretrial conferences were conducted during Kearse’s involuntary absence; (12) the granting of the State’s cause challenge to a juror; (13) the denial of Kearse’s cause challenges to two jurors; Kearse’s compelled mental health examination (14) constituted an unconstitutional rule of discovery, (15) violated the ex post facto clauses of the United States and Florida Constitutions, and (16) Kearse’s Fifth, Sixth, Eighth, and Fourteenth Amendment rights; (17) the victim impact jury instruction was vague and gave evidence undue importance; (18) the trial court gave little weight to age as a mitigating circumstance; the “committed during a robbery” aggravating circumstance (19) should have been merged with the other aggravators or (20) should not have been considered; (21) the admission of photographs of the victim; and (22) electrocution is cruel and unusual punishment. Kearse II, 770 So. 2d at 1123.
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Kearse [*6] subsequently filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851, in which he raised several claims and subclaims. n3 The trial court held an evidentiary hearing on some of them, and subsequently denied relief on all claims.

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Kearse claimed the following: (1) that public records were withheld; (2) that defense counsel failed vigorously to advance Kearse’s position, to cross-examine witnesses at trial and at the motion to suppress hearing, to consult with crime scene, firearm, and medical experts, to request co-counsel at the second penalty phase, to prepare witnesses to testify at the resentencing, to object to the admission of evidence, to argue the age mitigating factor, to present evidence regarding the victim’s prior misconduct, to obtain Kearse’s consent to concede aggravating factors, and cumulative error; (3) that the trial court erred in denying a cause challenge, in denying trial counsel’s motion for co-counsel, and in rejecting two statutory mental health mitigating factors; (4) that the State knowingly withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); (5) that newly discovered evidence demonstrates the State’s [*7] expert was biased for the prosecution; (6) that Kearse’s rights under Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), were denied through the ineffective assistance of counsel and inadequate assistance of mental health experts; (7) that Kearse’s death sentence is fundamentally unfair; (8) that Kearse was denied the right to a fair trial because of pretrial publicity, the lack of adequate venue, and events in the courtroom at trial; (9) that Florida’s death penalty scheme violates Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002); (10) that his death sentence is unconstitutionally based on an automatic aggravator; and (11) that Kearse is insane to be executed.
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II. THE ISSUES ON APPEAL

Kearse raises the following four issues on appeal: (A) that trial counsel provided constitutionally ineffective assistance, (B) that the circuit court erred in denying Kearse’s claim of newly discovered evidence warranting a new penalty phase, (C) that the trial court erred in denying Kearse’s public records requests, and (D) that the trial court erred in summarily denying several of his postconviction claims. We address each in turn below.

A. Ineffective Assistance of Counsel

Kearse first argues that he received ineffective assistance [*8] of counsel. In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Court established a two-pronged standard for determining whether counsel provided constitutionally ineffective assistance. First, a defendant must point to specific acts or omissions of counsel that are “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. Second, the defendant must establish prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Id. Claims of ineffective assistance present mixed questions of law and fact subject to plenary review. Occhicone v. State, 768 So. 2d 1037, 1045 (Fla. 2000). This Court independently reviews the trial court’s legal conclusions and defers to the trial court’s findings of fact.

Kearse argues that his trial counsel was constitutionally ineffective for (1) failing vigorously to advocate for him, (2) failing adequately to prepare the defense experts, (3) failing to investigate and prepare for the [*9] State’s mental health expert, (4) failing to present victim misconduct evidence, and (5) failing to prepare lay witnesses to testify.

1. Vigorous Advocacy

Kearse’s claim that counsel did not sufficiently advocate for him is based largely on various statements made by his counsel during the guilt phase and resentencing, most of which the jury did not hear. Kearse has lifted many of the statements from their context and ascribed to them both importance and meaning not present when they are viewed in context. We agree with the trial court that, when viewed in context, the statements and arguments constitute defense counsel’s candid representations to the court. Accordingly, Kearse has demonstrated neither deficiency nor prejudice.

Kearse’s allegation that defense counsel did not understand the mental health issues at resentencing is similarly based on statements taken out of context. Defense counsel was an experienced death penalty attorney. He represented Kearse at the guilt phase and original sentencing and again at resentencing. At both sentencing proceedings, he presented the expert testimony of the same neuropsychologist, a number of professionals who had worked with Kearse when he [*10] was in a school for emotionally disturbed children, and family members. At the postconviction hearing, defense counsel testified that he understood the issues and was prepared at trial. We conclude that Kearse has failed to demonstrate either deficiency or prejudice.

2. Preparation of Experts

Kearse first argues that defense counsel failed adequately to prepare Dr. Lipman, a neuropharmacologist, to testify by failing to provide him with necessary information and did not provide Dr. Lipman with the defense neuropsychologist’s assistance in preparing part of an analysis in support of Dr. Lipman’s testimony. Competent, substantial evidence supports the circuit court’s finding that defense counsel provided Dr. Lipman with necessary materials. Further, Dr. Lipman testified at resentencing that counsel inundated him with information, and at the postconviction hearing testified that he would not change his testimony now that he had seen further information. Finally, Dr. Lipman testified that when he needed expert assistance, he simply consulted another neuropsychologist. Accordingly, Kearse failed to establish either deficiency or prejudice.

Kearse raises another ineffective assistance claim [*11] regarding Dr. Lipman’s testimony. At the resentencing, Lipman testified that Kearse suffered from fetal alcohol effect, explained Kearse’s resulting neurodevelopmental problems, and related these factors to Kearse’s actions on the day of the murder. Kearse alleges that Dr. Lipman was not qualified to testify regarding his consultations with other experts about Kearse’s psychological testing. The resentencing record demonstrates, however, that as a neuropharmacologist, in making his diagnoses Dr. Lipman always relies on medical doctors and psychologists. We agree with the circuit court that Dr. Lipman was not barred from testifying about his reliance on other experts. Thus, Kearse fails to meet either requirement of Strickland.

3. Preparation for Expert Testimony

Kearse argues that defense counsel was ineffective for failing to depose and investigate Dr. Martell, the State’s mental health expert, and was thus unprepared to cross-examine him. He also claims that counsel failed to present a number of mental health experts in mitigation. To address this claim, we first place it in context by summarizing the mitigation testimony presented at resentencing.

Dr. Fred Petrilla, a neuropsychologist, [*12] evaluated Kearse in 1991 and again in 1996 for the resentencing. Petrilla testified for the defense that although Kearse had an IQ of 79 and was not mentally retarded, he had moderate brain dysfunction. Kearse had auditory, concentration, and behavioral problems, and severe learning problems. Kearse also tended to be hyperactive and react impulsively when confronted, and he was culturally deprived. The expert concluded Kearse was not malingering on testing and that two statutory mitigators were supported: extreme emotional disturbance and because of emotional disturbance, Kearse was incapable of conforming his conduct to the requirements of the law.

Dr. Lipman testified that Kearse had neurodevelopmental problems from an early age due to his mother’s alcohol abuse during pregnancy. This alcohol abuse caused Kearse to suffer from fetal alcohol effect (FAE), one of the effects of which is brain dysfunction. The expert testified that his finding of FAE is consistent with Kearse’s hyperactivity, impulsivity, and slow physical and subnormal educational development and is consistent with the findings of other experts who tested Kearse, such as Dr. Petrilla. Further, Dr. Lipman testified that [*13] Kearse confabulated (i.e., rationalized what happened) in retelling the crime and thus was not “lying” about it. Dr. Lipman opined that at the time of the murder Kearse “exploded” without thought and did not kill the officer to avoid arrest. He also concluded that Kearse had a verbal memory disorder and was not malingering on the Minnesota Multiphasic Personality Inventory (MMPI).

Various teachers and school officials taught Kearse at a school for severely emotionally disturbed children, where Kearse was placed based on psychological evaluations. These education professionals testified that Kearse suffered from severe emotional dysfunction and functioned below grade level. Kearse had learning disabilities and was unable to master the skills of a normal student. He previously had failed in school, repeating the first and second grades twice and being socially promoted through several grades based solely on his age. At age fifteen, Kearse was in the seventh grade when he scored in the .8 percentile (i.e., the bottom one percent of all students) on the Wide Range Achievement Test. Functioning at a third-grade level, Kearse then dropped out at the end of that school year. The educators [*14] testified that Kearse had a genuine desire to learn, but was unsuccessful because of his limitations, and over time Kearse became increasingly disruptive in school. Further, his mother’s neglect was apparent. Kearse came to school dirty, hungry, unkempt, and malnourished. His mother failed to respond to school requests for information or consultation.

Kearse’s relatives–two aunts, an uncle, and Kearse’s mother-testified that Kearse’s mother was fifteen when he was born, and that his mother drank excessively during and following the pregnancy. Kearse’s father left when he was two, and his mother failed to show him affection and neglected him. She also physically abused him, and as he grew older, was unable to control him. Kearse was slow to develop both physically and emotionally. As a child, he had slurred speech and difficulty pronouncing words. He also was delayed in learning skills, such as tying his shoes. Kearse had difficulty understanding and following through on directions and had significant difficulties with school work. He frequently ran away for days at a time and lived on the street.

Pamela Baker, a licensed mental health counselor and at one time Kearse’s teacher, first [*15] encountered Kearse in 1981 when at age eight he was referred to the Suspect Child Abuse and Neglect program. She testified regarding his documented school and psychological history and Kearse’s home life. According to Baker, Kearse’s mother neglected and frequently “whipped” him. At one time Kearse was reluctant to leave the youth home in which he was placed because he was fed better there. She said that Kearse was classified as severely emotionally disturbed and was placed in special classes. At age twelve, his approximate IQ was 69. He failed grade levels and was usually promoted socially based on age. Neurological testing in 1981 revealed that Kearse had problems related to brain damage, including poor memory, motor skills, and planning skills, an inability to do abstract thinking, and poor comprehension. His mental age was lower than his chronological age. She noted that Kearse became involved in smoking and drinking at an early age and committed petty thefts and burglaries, but there was little aggressive behavior involved in these crimes. Baker visited Kearse in prison and found that he had learned how to read and write while there. She further stated that Kearse exhibited symptoms [*16] of panic attacks and conduct disorder. Finally, she testified that although Kearse was sometimes a bully at school, he was not violent, and she never thought he would kill anyone.

The State presented Dr. Martell, who testified that neither statutory mental health mitigator applied, that FAE is not a mental disorder, and that Kearse had no brain damage. He opined that Kearse was depressed, which could account for Kearse’s low verbal IQ, and that Kearse had a conduct disorder and chose not to apply himself in school. He opined that Kearse had an antisocial personality disorder and scored within the range for psychopathy. Further, Martell said that Kearse’s MMPI results evidenced malingering. Martell concluded that Kearse is a pathological liar, who consciously shot the officer, took the gun with him because of the fingerprints, extinguished his headlights to escape, and then lied to evade responsibility.

Having summarized the evidence at the resentencing, we now address Kearse’s claim that defense counsel was deficient for failing to depose Dr. Martell, the State’s mental health expert. The record shows that Dr. Martell examined Kearse on the Thursday before the resentencing proceedings [*17] began the following Monday, and that defense counsel’s motion for a continuance was denied. Upon receipt of Dr. Martell’s raw data and report, defense counsel forwarded these to his experts and consulted with them about the information. He also consulted the state attorney regarding Martell’s upcoming testimony. At the postconviction hearing, defense counsel testified that despite not having deposed Martell, he knew what Dr. Martell’s testimony would be regarding statutory mitigators, what his test results supposedly revealed, and where Martell’s testimony would differ from his own experts’ testimony. As evidenced from the foregoing summary, the evidence shows that Udell correctly anticipated Martell’s testimony. Kearse thus has not demonstrated anything material that defense counsel did not anticipate or could have done differently had he deposed Dr. Martell.

Kearse also claims that defense counsel should have presented more mitigation or chosen different experts. This claim simply ignores the extensive mental health mitigation outlined above that was presented at resentencing through a psychologist, a neuropharmacologist, a licensed mental health counselor, several educators, and [*18] family members. Further, as the trial court pointed out, and Kearse does not dispute, Kearse’s experts at the postconviction hearing largely testified in conformity with the testimony defense counsel presented at the resentencing. We can think of no other case–and Kearse has not cited one–in which defense counsel has presented so much expert testimony and other mitigation, but has been found ineffective for failure to present mitigation. n4 Accordingly, we hold that Kearse’s claim fails to meet Strickland‘s requirements.

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In fact, when we affirmed the death sentence in this case, three members of this Court found the mitigation so compelling that they dissented, opining that “[t]he bottom line is that this is clearly not a death case. It is not one of the most aggravated and least mitigated or among the worst of the worst for which we have reserved death as the only appropriate response.” Kearse II, 770 So. 2d at 1138 (Anstead, J., dissenting).
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4. Failure to Investigate and Present Victim Misconduct Evidence

Kearse next claims that defense counsel was ineffective for insufficiently investigating and by failing to use a mitigation strategy to vilify the victim. Kearse argues that evidence [*19] of Officer Parrish’s prior misconduct suggested that he provoked the incident resulting in his death and that presentation of this mitigation would have resulted in a life sentence. Defense counsel considered this strategy and investigated citizen complaints against Officer Parrish. Counsel testified that after considering several factors-including the refusal of some witnesses to testify, the lack of substance of some testimony, and determinations by the Fort Pierce police that formal complaints against the officer were unfounded-he ultimately decided not to use this strategy. In addition, he considered the potential that the strategy would backfire, especially in light of the facts, such as Kearse’s firing thirteen bullets into the officer as the officer pled for his life and Kearse’s passenger’s testimony that at all times Officer Parrish was friendly and polite. Defense counsel admitted that he did not request the officer’s personnel file. However, the evidence at the postconviction hearing showed that any evidence in the file supporting the vilification mitigation could have been countered at trial by other evidence in it of Officer Parrish’s good reports and commendations. We [*20] find that counsel’s decision not to present this mitigation strategy was reasonable. Further, Kearse has not demonstrated prejudice from counsel’s failure to obtain the personnel record. Accordingly, we affirm denial of relief on this claim.

5. Failing to Prepare Lay Witnesses

Kearse alleges that defense counsel failed to prepare him, Pamela Baker, and his aunt and uncle to testify. Kearse’s claim that counsel failed to prepare him is based on an exchange at resentencing in which defense counsel asked Kearse where he had been incarcerated before his arrest for the murder. Kearse answered that he had been on death row at Raiford, which is where he was incarcerated after the trial. This answer was unresponsive to the question. Accordingly, Kearse fails to demonstrate that counsel was deficient. Kearse’s claim regarding his relatives was not raised in his postconviction motion and thus it is unpreserved for appeal. Further, in his brief the claim is conclusory, meeting neither prong of Strickland. Kearse’s claim that counsel was ineffective for allowing Ms. Baker to testify regarding his juvenile record is also conclusory and meritless. He claims without explanation that the evidence was [*21] not admissible. As the testimony at the postconviction hearing made clear, the evidence was admissible and defense counsel chose to admit it through Ms. Baker who could present it in context with Kearse’s mental health and social services history. Accordingly, the trial court was correct to deny relief on all of these claims. n5

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Kearse also argues that defense counsel was ineffective for failing to cross-examine two witnesses at the motion to suppress hearing. He claims that on the day of the murder the eyewitness passenger (Rhonda Pendleton) was his girlfriend who was staying at her brother’s home. Kearse argues that the police search of that house was invalid because he was an overnight guest there. This is not the argument Kearse made in his postconviction motion, and it is thus not preserved. Second, we held in Kearse I that exigent circumstances provided probable cause for the warrantless arrest and that physical evidence seized at the scene was not subject to suppression. Kearse I, 662 So. 2d at 684.
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B. Newly Discovered Evidence

Kearse argues that the circuit court erred in concluding that information he alleges could have been used at resentencing to impeach the defense’s mental [*22] health expert does not constitute newly discovered evidence. We disagree.

Kearse claims that evidence about Dr. Martell’s conduct as an expert witness for the federal government in a criminal case in New Mexico demonstrates that he gave biased testimony in favor of the State at resentencing. In Jones v. State, 709 So. 2d 512 (Fla. 1998), this Court articulated a two-part test for establishing newly discovered evidence: (1) The evidence must have existed but have been unknown by the trial court, the party, or counsel at the time of trial, and must not have been discoverable through the use of due diligence, and (2) the newly discovered evidence must be of such a nature that it would probably produce an acquittal on retrial. Jones, 709 So. 2d at 521. The evidence shows that Kearse’s penalty phase commenced on December 9, 1996, and sentence was imposed on March 25, 1997. Both Dr. Martell’s actions in the federal criminal case and allegations regarding his conduct postdated Kearse’s sentencing. Thus, the evidence did not exist at the time of the resentencing, and Kearse fails to meet the first prong of the test. The evidence also fails to meet the second prong.

C. [*23] The Public Record Requests

Kearse next argues that he was denied due process because certain public records pertaining to his case were not provided to him, in violation of Chapter 119, Florida Statutes (2005), and Florida Rule of Criminal Procedure 3.852. Each of his claims is addressed below.

Kearse requested production of pictures and videotape that Fort Pierce police took from the perspective of the apartments of two witnesses on the crime scene. The police produced more than two hundred pictures. At a hearing on Kearse’s public records request, however, the police explained they did not have the videotape and that no records showed a videotape ever was placed in the evidence locker. The police suggested the possibility it did not exist due to malfunction. On appeal, Kearse argues that the postconviction court erred in denying an evidentiary hearing on his claim regarding the failure to produce the videotape. We conclude that the trial court did not abuse its discretion. The undisputed evidence demonstrates that the police did not have a videotape and at the hearing on the request, postconviction counsel apparently accepted the explanation given by the police and never again requested [*24] the tape or listed it as an outstanding request.

Kearse next contends the circuit court abused its discretion by denying his request for the personnel files of a state investigator and two assistant state attorneys. He claims that under Florida Rule of Criminal Procedure 3.852, he must be given the records because the circuit court did not timely deny the request. Rule 3.852(g)(3) provides that the trial court “shall hold a hearing and issue a ruling within 30 days” ordering production if the “additional public records sought are relevant to the subject matter . . . or appear reasonably calculated to lead to the discovery of admissible evidence.” The rule also provides the trial court with discretion to conduct in-camera inspections and extend the time specifications in the rule. See Fla. R. Crim. P. 3.852(k). The record shows that after an in-camera inspection, the court denied the request for the personnel files, finding they were not relevant and could not reasonably be calculated to lead to evidence helpful to Kearse’s postconviction motions. Accordingly, the court issued a ruling making the requisite finding and had discretion with regard to the date of issuing its order. Kearse [*25] has not demonstrated an abuse of that discretion.

Finally, Kearse argues that a letter the assistant state attorney sent to Kearse’s trial counsel regarding the ineffective assistance claims against him in the postconviction proceedings is not privileged work product. The State responds that under section 119.071, Florida Statutes (2005), the letter is exempt from disclosure as work product prepared in anticipation of litigation. We review the claim under the abuse of discretion standard. See State v. Coney, 845 So. 2d 120, 137 (Fla. 2003) (“A circuit court’s ruling on a public records request filed pursuant to a rule 3.850 motion will be sustained on review absent an abuse of discretion.”).

At the evidentiary hearing, Kearse’s trial counsel stated that the assistant state attorney sent him a letter regarding the issues at the hearing. Kearse’s postconviction counsel asked to see the letter. Upon the State’s objection, the circuit court sealed the letter and examined it in camera. After hearing argument, the trial court ruled that given the nature of the witness-Kearse’s trial counsel-in a postconviction proceeding and that trial counsel was listed as a witness for the State as well [*26] as the defense, the letter was work product not subject to disclosure.

Section 119.071(1)(d), Florida Statutes (2005), provides as follows in pertinent part:

(d)1. A public record that was prepared by an agency attorney (including an attorney employed or retained by the agency or employed or retained by another public officer or agency to protect or represent the interests of the agency having custody of the record) or prepared at the attorney’s express direction, that reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and that was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or that was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until the conclusion of the litigation or adversarial administrative proceedings. For purposes of capital collateral litigation as set forth in s. 27.7001, the Attorney General’s office is entitled to claim this exemption for those public records prepared for direct appeal as well as for all capital [*27] collateral litigation after direct appeal until execution of sentence or imposition of a life sentence.The assistant state attorney’s letter containing his mental impressions about the case clearly fits within the exemption of attorney work product prepared with regard to the ongoing postconviction proceedings. See § 119.071(1)(d), Fla. Stat. (2005); see also Fla. R. Crim. P. 3.220(g)(1) (“Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the prosecuting or defense attorney or members of their legal staffs.”); State v. Kokal, 562 So. 2d 324, 327 (Fla. 1990) (“Of course, the state attorney was not required to disclose his current file relating to the motion for postconviction relief because there is ongoing litigation with respect to those documents.”). Accordingly, we hold that the circuit court did not abuse its discretion by denying Kearse’s request for the letter.

D. Miscellaneous Claims

Kearse argues that the circuit court erred in summarily denying a number of his claims. We disagree, and affirm the trial court’s order.

During the 1996 resentencing proceeding, [*28] Kearse’s defense counsel told the court that at the 1991 trial the courtroom was full of uniformed law enforcement officers. Based solely on this statement, Kearse argued in his postconviction motion that he was deprived of a fair trial in 1991. The circuit court summarily denied relief, finding the claim legally insufficient because the mere presence of the officers was insufficient to demonstrate a hostile courtroom and Kearse failed to demonstrate prejudice. We agree. Kearse does not allege any other facts that in the “totality of the circumstances” would entitle him to relief. See Woods v. Dugger, 923 F.2d 1454, 1455 (11th Cir. 1991) (applying a totality of the circumstances test to a similar claim).

Finally, in conclusory fashion and without any argument, Kearse alleges the following: (1) that counsel was ineffective for failing to cross-examine or impeach witnesses, failing to consult crime scene and firearms experts, failing to prepare defense witnesses, failing to argue age as a statutory mitigator, and for conceding aggravating factors without Kearse’s consent; (2) that the trial court erred in denying cause challenges and rejecting mental health mitigation; (3) that Brady n6 [*29] violations occurred; (4) that nonstatutory aggravators were presented; and (5) that pretrial publicity, the venue, and events in the courtroom denied him a fair trial. We hold these claims are waived and affirm the denial of relief. See Cooper v. State, 856 So. 2d 969, 977 n.7 (Fla. 2003) (“Cooper has chosen to contest the trial court’s summary denial of various claims, by contending, without specific reference or supportive argument, that the ‘lower court erred in its summary denial of these claims.’ We find speculative, unsupported argument of this type to be improper, and deny relief based thereon.”); see also Duest v. Dugger, 555 So. 2d 849, 852 (Fla. 1990) (“The purpose of an appellate brief is to present arguments in support of the points on appeal. Merely making reference to arguments below without further elucidation does not suffice to preserve issues, and these claims are deemed to have been waived.”).

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Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) (requiring State disclosure of material information favorable to the defense).
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III. THE HABEAS PETITION

In his petition for a writ of habeas corpus, Kearse contends (A) that appellate counsel was ineffective for failing to raise two meritorious [*30] claims, and (B) that both his death sentence and lethal injection are unconstitutional. We address these claims below and deny the petition.

A. Ineffective Assistance of Appellate Counsel

The requirements for establishing a claim based on ineffective assistance of appellate counsel parallel the standards announced in Strickland. “[The] [p]etitioner must show 1) specific errors or omissions which show that appellate counsel’s performance deviated from the norm or fell outside the range of professionally acceptable performance, and 2) the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result.” Wilson v. Wainwright, 474 So. 2d 1162, 1163 (Fla. 1985). Counsel ordinarily is not deemed ineffective under this standard for failing to raise issues that are procedurally barred because they were not properly raised during the trial court proceedings. See Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000). Moreover, appellate counsel cannot be deemed ineffective for failing to raise nonmeritorious claims on appeal. See id.

1. Denial of a Cause Challenge

Kearse alleges first that appellate [*31] counsel was ineffective for failing to raise the trial court’s denial of Kearse’s cause challenge to juror Matthews. Kearse’s resentencing, like the 1991 trial, was held in Indian River County instead of St. Lucie County. During jury selection, defense counsel moved to strike Matthews for cause based on her knowledge of facts of the case and her relationship to a testifying detective. n7 After the court denied the strike, defense counsel took the necessary steps to preserve the issue by requesting additional peremptories and renewing the motion before the jury was sworn. See Trotter v. State, 576 So. 2d 691 (Fla. 1990) (explaining the requirements for preserving a cause challenge). On direct appeal, appellate counsel raised the denials of other cause challenges, but did not raise the preserved claim regarding Matthews, who actually served on the jury. See Kearse II, 770 So. 2d at 1128-29. Accordingly, contrary to the State’s argument, this claim of ineffective assistance of appellate counsel is properly raised by habeas petition in this Court. Nevertheless, we deny the claim.

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Kearse’s contention on appeal that the juror was not qualified because she was the prosecutor’s insurance agent [*32] was not preserved for review.
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During individual questioning by the attorneys, Matthews indicated that she remembered a media report from several years before in which a Fort Pierce officer was “shot about 14 times” and “[t]here was like a trail where he tried to get away.” She repeated that she was uncertain these facts concerned this case and had made the tentative connection based on the questioning during jury selection. Matthews also volunteered that, the night before, she learned from her husband’s parents that her father-in-law’s half brother, a retired Fort Pierce police officer, was coming to Florida for Christmas and to testify at a trial involving the murder of an officer. Matthews stated that she had not seen Detective Raulerson in three years and did not know him well. She assured the court that this would have no effect on her impartiality in the resentencing proceeding. At the resentencing, Raulerson, who was lead crime scene detective in the investigation of Officer Parrish’s murder, testified regarding the gathering of physical evidence in the case.

We find that neither Matthews’s vague memories about the crime, nor her attenuated relationship to a testifying detective, [*33] either separately or cumulatively, raises a reasonable doubt about her ability to be fair and impartial in light of her unwavering statements during voir dire of the need for a fair sentencing proceeding and her ability to be impartial. See Lusk v. State, 446 So. 2d 1038, 1041 (Fla. 1984) (“The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court.”); Singer v. State, 109 So. 2d 7, 24 (Fla. 1959) (announcing test for juror competency). Accordingly, the trial court did not err in denying the cause challenge, and appellate counsel was not ineffective for failing to raise the preserved claim.

2. The Motion for Appointment of Co-Counsel

Kearse next argues that appellate counsel was ineffective for failing to raise on appeal the trial court’s denial of defense counsel’s motion for appointment of co-counsel at the 1991 trial. Shortly after his appointment, defense counsel moved for appointment of co-counsel on numerous grounds. After a hearing, the trial court denied the motion and denied the renewed motion before the first penalty phase.

In [*34] Armstrong v. State, 642 So. 2d 730, 737 (Fla. 1994), we stated that the question of appointment of additional counsel rests within the discretion of the trial court “and is based on a determination of the complexity of a given case and the attorney’s effectiveness therein.” The record shows that trial counsel agreed with the trial court that the case was not complex, and Kearse does not claim here that it was. Accordingly, Kearse has not established that the motion for co-counsel would have been found meritorious on direct appeal and thus has failed to establish ineffective assistance of appellate counsel.

B. Constitutional Claims

Kearse claims that his death sentence is unconstitutional on various grounds. First, he argues that because of his age, low level of intellectual functioning, and mental and emotional impairments he cannot be executed under Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), which prohibited execution of people with mental retardation. However, Kearse’s own expert at the resentencing testified that he was not mentally retarded, and he presented no evidence at his postconviction hearing that he was. Thus, his sentence is not unconstitutional under Atkins. See Hill v. State, 921 So. 2d 579, 584 (Fla.), [*35] cert. denied, 546 U.S. 1219, 126 S. Ct. 1441, 164 L. Ed. 2d 141 (2006).

Next, he argues that because he was only eighteen years and three months old at the time of the crime and had low level intellectual functioning and mental and emotional impairments, he cannot be executed under Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). Roper prohibited execution of any defendant who was under age eighteen at the time of the crime. Accordingly, Kearse does not qualify for exemption from execution under Roper. See Hill, 921 So. 2d at 584.

Kearse also argues that Florida’s capital sentencing scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), because instructions diminish the role of the jury, all elements are not charged in the indictment, a unanimous jury is not required, and the jury does not decide all the elements. First, Ring is not retroactive to Kearse’s case. See Johnson v. State, 904 So. 2d 400, 402 (Fla. 2005) (“We hold that . . . the United States Supreme Court’s decision in Ring v. Arizona . . . does not apply retroactively in Florida.”). We also note that Kearse’s resentencing jury returned a unanimous recommendation of death. Further, this Court has rejected all of these claims previously. See Parker v. State, 904 So. 2d 370, 383 (Fla. 2005) [*36] (listing claims and citing cases in which the Court denied these and other claims).

Finally, Kearse argues that Florida’s lethal injection statute and procedure are unconstitutional. This Court has previously upheld the statute against this challenge in other cases. See Sims v. State, 754 So. 2d 657 (Fla. 2000); accord Thompson v. State, 796 So. 2d 511, 515 (Fla. 2001); Bryan v. State, 753 So. 2d 1244, 1254 (Fla. 2000). We have also previously rejected the claims Kearse raises here regarding the lethal injection procedure. See Diaz v. State, 945 So. 2d 1136, 1144 (Fla.) (citing cases), cert. denied, 127 S. Ct. 850, 166 L. Ed. 2d 679 (2006). Accordingly, we deny relief on these claims. n8

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As a result of the execution of Angel Diaz, litigation concerning the constitutionality of Florida’s lethal injection procedures is ongoing in Lightbourne v. McCollum, No. SC06-2391 (Fla. petition filed Dec. 14, 2006). We do not consider those issues here and express no opinion regarding the merits of any subsequent challenge Kearse may bring related to lethal injection.
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It is so ordered.

Courtesy of David Edelstein

STEPHEN TODD BOOKER, Appellant, vs. STATE OF FLORIDA, Appellee.

No. SC06-121

SUPREME COURT OF FLORIDA

August 30, 2007, Decided

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

PRIOR HISTORY:    [*1]

An Appeal from the Circuit Court in and for Alachua County, Case No. 77-2332-CFA. Robert P. Cates, Judge.
Booker v. State, 773 So. 2d 1079, 2000 Fla. LEXIS 1983 (Fla., 2000)

COUNSEL:   Harry P. Brody and Jeffrey M. Hazen of Brody and Hazen, P.A., Tallahassee, Florida, for Appellant.

Bill McCollum, Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, Florida, for Appellee.

JUDGES:   LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

OPINION  

PER CURIAM.

This case is before the Court on appeal from an order denying a motion to vacate under Florida Rule of Criminal Procedure 3.851. The order concerns postconviction relief from a sentence of death, and this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution.

FACTS AND PROCEDURAL BACKGROUND

Stephen T. Booker was convicted of the 1977 first-degree murder and sexual battery of Lorine Demoss Harmon, a ninety-four-year-old woman, and also the crime of burglary. See Booker v. State, 773 So. 2d 1079, 1081 (Fla. 2000). In the opinion affirming the imposition of the death penalty after resentencing, the Court detailed the facts surrounding the murder:

The victim, an elderly woman, was found dead in her apartment in Gainesville, Florida. The cause  [*2]  of death was loss of blood due to several knife wounds in the chest area. Two knives, apparently used in the homicide, were embedded in the body of the victim. A pathologist located semen and blood in the vaginal area of the victim and concluded that sexual intercourse had occurred prior to death. The apartment was found to be in a state of disarray; drawers were pulled out and their contents strewn about the apartment. Fingerprints of the defendant were positively identified as being consistent with latent fingerprints lifted from the scene of the homicide. The defendant had a pair of boots which had a print pattern similar to those seen by an officer at the scene of the homicide.

Test results indicated that body hairs found on the clothing of the defendant at the time of his arrest were consistent with hairs taken from the body of the victim.

After being given the appropriate warnings, the defendant made a statement, speaking as an alternative personality named “Aniel.” The “Aniel” character made a statement that “Steve had done it.”Id. at 1081-82 (quoting Booker v. State, 397 So. 2d 910, 912 (Fla. 1981)). During Booker’s first penalty phase, the jury recommended the death penalty  [*3]  by a vote of nine to three. See id. at 1082. Following that recommendation, the trial court sentenced Booker to death. See id. On direct appeal, this Court affirmed Booker’s conviction and sentence. See id. However, in 1991, the United States Court of Appeals for the Eleventh Circuit affirmed a federal district court ruling which set aside Booker’s death sentence because the trial court committed a Hitchcock error. See id. [n1] After a new penalty phase was held, the jury recommended the death penalty by a vote of eight to four. See 773 So. 2d at 1086. The trial court again imposed the death penalty, found the following four aggravating factors, and gave each circumstance great weight: (1) the crime was committed while Booker was under sentence of imprisonment; (2) Booker had a conviction of a prior violent felony; (3) the crime was committed while Booker was engaged in the commission of a sexual battery and burglary; and (4) the crime was especially heinous, atrocious, or cruel (HAC). See id. With regard to mitigating circumstances, the Court’s opinion on direct appeal after resentencing reveals:

The court found two statutory mitigating circumstances: (1) Booker committed the capital  [*4]  felony while he was under the influence of extreme mental or emotional disturbances (great weight); and (2) Booker’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired (substantial weight). Finally, the court found nine nonstatutory mitigating circumstances: (1) Booker was sexually abused as a child (substantial weight); (2) Booker was physically abused as a child (substantial weight); (3) Booker was verbally abused as a child (moderate weight); (4) Booker’s family life was inconsistent (moderate weight); (5) Booker’s education was interrupted repeatedly (slight weight); (6) Booker suffered from alcohol and drug abuse (moderate weight); (7) while in prison, Booker substantially improved his ability to be a productive citizen and to produce creative valuable contributions to American Literature (little weight); (8) Booker demonstrated his remorse and attempted to atone for his crime (little weight); and (9) Booker was honorably discharged from the United States Army (slight weight). [N.10]

[N.10] The trial court considered, but gave no weight to, the statements made by Mrs. Zyromski and other members  [*5]  of the victim’s family, which urged that Booker be sentenced to life in prison.Id. at 1086. On appeal, this Court affirmed Booker’s sentence. See id. at 1081, 1096.

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In Hitchcock v. Dugger, 481 U.S. 393, 107 S. Ct. 1821, 95 L. Ed. 2d 347 (1987), the United States Supreme Court held that a death sentence is invalid where the advisory jury “was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances.” Id. at 398-99. In 1988, this Court denied a habeas petition filed by Booker in which he alleged a Hitchcock error. See Booker v. Dugger, 520 So. 2d 246, 249 (Fla. 1988). This Court concluded that even though the penalty phase jury instruction was erroneous, the error was harmless. See id. However, in Booker v. Dugger, 922 F.2d 633 (11th Cir. 1991), the Eleventh Circuit held that the error was not harmless. See id.
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On May 18, 2004, Booker filed a motion for postconviction relief in which he asserted the following claims: (1) counsel was ineffective because (a) two jurors who said they would not consider mitigating evidence remained on the jury simply because they were African-Americans; n2 (b) available factual evidence with regard to Booker’s prior violent  [*6]  felony conviction was not presented, which would have demonstrated to the jurors that the charge actually constituted mitigation instead of aggravation; (c) no objection was made under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), to the reading of testimony from the first trial; to the reading of Booker’s 1974 and 1980 judgments to the jury; and to a witness’s testimony “summing up” the evidence and the investigation; (d) witnesses who could have testified as to mitigation with regard to Booker’s upbringing and his literary accomplishments were not presented; (e) no objection was voiced to the introduction of testimony with regard to Booker’s unrelated collateral crimes; (f) no objection was made to the instruction to the jury that it should not consider the testimony of the victim’s great niece, Page Zyromski, that she found Booker’s remorse to be sincere; (g) no objection was made to numerous improper statements by the prosecution during closing argument; and (h) Michael “Mick” Price, who was previously employed by the Gainesville Police Department, was not presented to rebut the testimony of Dr. Barnard with regard to the issue of malingering and Booker’s honesty; (2) the State violated  [*7]  Booker’s attorney-client privilege by improperly opening and reading his mail without disclosing this fact to Booker’s counsel; (3) Booker was denied his right to equal protection when the trial court did not instruct the jury on the length of time that Booker would be in jail if he received a life sentence; (4) Florida’s sentencing scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002); (5) the presentation of hearsay during the resentencing trial violated the Confrontation Clause under Crawford; (6) Booker’s twenty-seven-year incarceration on death row constitutes cruel and unusual punishment; (7) Booker has matured into an essential literary voice, and to execute him would implicate the freedom of the press and freedom of expression; and (8) an unsigned sentencing order in the State’s files creates the prima facie presumption that the State improperly drafted the sentencing order or that the trial court did not conduct the proper weighing of the evidence.

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Booker later amended this claim to reflect that only one juror remained on the jury solely because of her race.
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After a Huff n3 hearing was held, the trial court issued an order granting an evidentiary hearing on  [*8]  Claim II, allowing Booker to amend Claims I(a), (b), and (d), and summarily denying the remainder of Booker’s motion. On January 15, 2005, Booker filed an amendment to his postconviction motion. The trial court held a second Huff hearing on Booker’s amendment and issued a subsequent order summarily denying Claims I (a), (b), and (d).

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Huff v. State, 622 So. 2d 982 (Fla. 1993).
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On September 16, 2005, the trial court held an evidentiary hearing on Claim II, in which Booker had alleged that the State had improperly interfered with his mail. During the evidentiary hearing, Assistant State Attorney Ralph Grabel testified that he was not aware of a “mail cover” being placed on Booker’s correspondence, n4 that he had never read Booker’s mail, and that he was unaware of anyone else in the State Attorney’s Office reading Booker’s mail. Booker’s counsel then presented to Grabel a memo from an investigator for the State (Michael “Mick” Price) n5 addressed to Grabel and his co-prosecutor, Rod Smith, stating that an employee at Florida State Prison “asked whether or not we wanted mail cover on BOOKER. I declined the offer on the expectation that Johnny Kearns [Booker's attorney on resentencing] would  [*9]  eat us alive if he found out. If you believe otherwise, I’ll simply call Ruise back and he’ll handle it.” Grabel was also shown other dated entries in the memo by Price referencing “mail cover.” In one entry, Price wrote that “on 3-28-97, before leaving FSP, I picked up another collection of letters obtained under mail cover.” In another, Price wrote:

On 4-10-97, while in the Starke areas hunting GASKINS, I drove past FSP and picked up another packet of mail cover. On 4-11-97, while reviewing the above mail cover, I ran across a letter written by BOOKER to Betty VOGH (a Gainesvillian who expects to be called as a witness) which informs VOGH of the “scuttlebutt” that the officers “. . . originators of the lies [Re: hand up dress incident] . . . have received suspensions on an unrelated incident.”Grabel testified that prior to seeing the memo, he would have said that no discussion of “mail cover” had ever occurred. However, he conceded during the hearing that there was apparently a memo sent to him discussing, among other issues, “mail cover.” Grabel verified that Price had been sent to the prison by then-State Attorney Smith to obtain information about other incidents of a disciplinary  [*10]  nature that could be used to rebut the defense’s argument that Booker is now a literary person and that his life was worth saving. However, Grabel reiterated that he has never utilized “mail cover” to gain a benefit for the State, and that he did not direct anyone to intercept any attorney-client privileged mail of Booker.

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In the instant proceedings, the term “mail cover” appears to be used to describe a procedure in which the mail of inmates is monitored by prison staff. 5

Prior to working for the State, Price was employed by the Gainesville Police Department.
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Rod Smith testified that while he was a state attorney, there were certain circumstances under which he would have authorized the use of “mail cover”; however, he did not request a mail cover on Booker’s mail during the resentencing proceedings because it was not necessary. Smith verified that as lead counsel in the case, if “mail cover” were to be ordered, it would have been he (Smith) who would have authorized the procedure, and he did not. When Smith reviewed the memos from Mick Price, he conceded that it appeared that some form of “mail cover” of Booker’s mail had occurred, but he reiterated that he did not authorize it,  [*11]  and if it had occurred, it was conducted without his authority. Smith also testified that the first time he had seen the memo from Price referencing the “mail cover” was the week of the evidentiary hearing. Smith asserted that, to his knowledge, the State Attorney’s Office did not monitor Booker’s mail, and he had never personally reviewed any mail that had been copied or taken from Booker.

The role of Mick Price in the Booker resentencing proceedings was to interview witnesses, and he did not recall any form of “mail cover” on Booker’s mail. However, when Price reviewed the memo that he directed to Smith and Grabel, he conceded that it appeared that he had obtained some of Booker’s prison mail. He stated that if he had been picking up “mail cover,” he would have delivered it to the State Attorney’s Office because he was working there at the time. However, he testified that the memo did not look familiar to him, and he had no recollection of reading Booker’s mail. Further, on cross-examination, he testified that he did not recall having any conversations with Grabel or Smith with regard to “mail cover,” he did not recall being asked to obtain “mail cover,” and he did not recall bringing  [*12]  any mail back to the State Attorney’s Office.

To rebut Booker’s claims of tampering with legal mail, the State presented attorney Johnny Kearns, who represented Booker during resentencing. Attorney Kearns testified that his office was close to Florida State Prison, and either he or one of his investigators delivered all legal documents and mail to Booker by hand. Kearns stated that he would observe the prison officials check the legal documents for contraband, and then they would hand the materials to Booker. Kearns stated that he only sent two letters to Booker through the mail–the first contained a money order for stamps, and the second addressed a court status conference and informed Booker that his case had been continued. Kearns testified that Booker had authored approximately fifty letters to him. Booker would write across the back of the envelope where it was sealed either the words “legal mail” or a series of X’s across the seam. Kearns testified that it was his understanding that Booker was attempting to ensure that any tampering with his legal mail could be observed and identified. Kearns testified that he saw “no visible tampering or opening of the mail from the time they  [*13]  were sealed to the time that I received them.” Kearns saw no signs of any tampering. Kearns further stated that at no time did he have concerns that the State had improperly obtained any information that was then used to subvert his strategy in representing Booker. Kearns testified that he would have objected to a State investigator obtaining privileged mail and reporting its contents to the prosecution. Kearns stated that he was not aware that Price had been picking up Booker’s letters obtained under “mail cover.” Upon reading the entry which discussed the letter from Booker to Betty Vogh, Kearns testified that if he had known about Price’s actions, he would have inquired as to why the State was reading Booker’s mail; however, he also recognized that the “letter from Mr. Booker to Ms. Vogh is not legal mail.”

On November 22, 2005, the trial court entered an order denying Claim II. The trial court concluded that Booker had failed to present any evidence of tampering with his legal mail. The trial court concluded that Grabel and Smith were highly credible witnesses and accorded great weight to their testimony that they did not direct that Booker’s mail be intercepted or opened and that  [*14]  they had not read any of Booker’s mail. Although the trial court concluded that Mick Price was “quite a bit older and his memory . . . was perhaps not as good as it used to be,” it accepted his testimony that he did not tamper with Booker’s legal mail. Finally, in reaching the determination that no tampering with legal mail occurred, the trial court relied on the testimony of Kearns, who “went out of his way to keep Mr. Booker from being concerned about mail tampering by hand delivering any communications.”

Booker appeals the denial of his rule 3.851 motion.

ANALYSIS

“Mail Cover”

The case upon which Booker relies to contend that the attorney-client privilege was violated when an agent of the State intercepted his mail is Weatherford v. Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977). In that case, Weatherford was an undercover agent for the South Carolina Law Enforcement Division. See id. at 547. Weatherford was “arrested” with defendant Bursey for vandalizing a selective service office. See id. While maintaining his cover, Weatherford, at the request of Bursey and his counsel, attended two meetings where they discussed the upcoming trial. See id. at 547-48. At Bursey’s trial, Weatherford appeared as a witness  [*15]  and testified with regard to his undercover activities. See id. at 549. After his conviction, Bursey filed a claim for violation of constitutional rights under 42 U.S.C. § 1983 asserting that Weatherford had communicated defense strategies to his superiors and prosecuting officials which he had learned in meetings with Bursey and his attorney, which deprived Bursey of the effective assistance of counsel and his right to a fair trial. See id. The United States Supreme Court ultimately concluded that Bursey’s section 1983 claim failed because Weatherford did not communicate any defense strategy to the prosecution and did not purposefully intrude on the meetings between Bursey and his counsel. See id. at 558. The Court further explained:

[W]e need not agree with petitioners that whenever a defendant converses with his counsel in the presence of a third party thought to be a confederate and ally, the defendant assumes the risk and cannot complain if the third party turns out to be an informer for the government who has reported on the conversations to the prosecution and who testifies about them at the defendant’s trial. Had Weatherford testified at Bursey’s trial as to the conversation  [*16]  between Bursey and Wise [Bursey's counsel]; had any of the State’s evidence originated in these conversations; had those overheard conversations been used in any other way to the substantial detriment of Bursey; or even had the prosecution learned from Weatherford, an undercover agent, the details of the Bursey-Wise conversations about trial preparations, Bursey would have a much stronger case.Id. at 554.

As the above analysis demonstrates, the Weatherford case addressed actual attorney-client communications; it did not involve Bursey speaking with or writing to a layperson. Further, the decisions which discuss the constitutional implications of intercepting inmate mail focus on legal mail rather than on correspondence with laypeople. See generally Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003)(“Interference with legal mail implicates a prison inmate’s rights to access to the courts and free speech as guaranteed by the First and Fourteenth Amendments to the U.S. Constitution.”); Jensen v. Klecker, 648 F.2d 1179, 1182 (8th Cir. 1981)(rejecting claim that “the routine inspection of incoming and outgoing nonlegal mail constitutes a violation of [inmates'] civil rights”); Thomsen v. Ross, 368 F. Supp. 2d 961, 973-74 (D. Minn. 2005)(“A  [*17]  jailer who opens a prisoner’s legal mail outside of the prisoner’s presence may violate a prisoner’s constitutional rights.”). Booker does not present any case to support the proposition that if a government official or agent reads an inmate’s nonlegal mail, the Sixth or Fourteenth Amendments become implicated. With this status of the law, we conclude that the key issue presented by this claim is whether the State interfered with Booker’s legal mail, not whether the State (or its agent) ever accessed Booker’s nonlegal mail.

In the order denying postconviction relief, the trial court made very specific findings with regard to whether tampering with Booker’s legal mail had occurred:

The Defendant has failed to present any evidence demonstrating the Defendant’s legal mail was tampered with by any agent of the State. The Defendant, likewise, failed to present any evidence that privileged communications, in any form, were impermissibly intercepted, interfered with, or used by any agent of the State. Not only does the evidence not support the Defendant’s claim his legal mail was tampered with or that the State knowingly interfered with his attorney-client relationship, there is a great deal  [*18]  of evidence to support it was not.Following the denial of a postconviction claim where the trial court has conducted an evidentiary hearing, this Court affords deference to the trial court’s factual findings. See Walls v. State, 926 So. 2d 1156, 1165 (Fla. 2006). If the trial court’s findings are supported by competent, substantial evidence, this Court will not substitute its judgment for that of the trial court on questions of fact. See id. The same standard applies to the credibility of the witnesses as well as the weight to be given to the evidence by the trial court. See id.

We conclude that the trial court’s finding that neither the State nor its agent, Investigator Mick Price, tampered or interfered with Booker’s legal mail is supported by competent, substantial evidence. Although the extensive facts developed during the evidentiary hearing reveal that some sort of “mail cover” may have occurred, and that Price may have retrieved mail from Florida State Prison, Booker has failed to identify a single piece of legal mail that was intercepted or touched by Price. Booker speculates that Price had collected some of Booker’s mail, and, therefore, “all mail in and all mail out of FSP  [*19]  was compromised by the ‘mail cover.’ ” However, Booker offers absolutely no substantive proof to support this conclusory statement. Further, even if we were to assume that Price did collect some of Booker’s legal mail under the “mail cover,” coprosecutors Rod Smith and Ralph Grabel denied ever having read any of Booker’s mail, let alone his legal mail, and the trial court found their testimony to be credible. Cf. Pietri v. State, 885 So. 2d 245, 272 (Fla. 2004)(rejecting Weatherford claim where a document prepared by defense counsel’s investigator was allegedly stolen and obtained by the State and noting that “[t]he state attorney maintained that he never read nor had access to the stolen document, and defense counsel did not challenge that assertion”).

Further, the most compelling evidence that the State did not access Booker’s legal mail was presented by Booker’s resentencing counsel, Johnny Kearns. Kearns testified that he or one of his investigators had actually hand-delivered all but two pieces of correspondence to Booker, and the two pieces of mail that were sent to the prison did not contain any information with regard to the defense strategy. Moreover, Kearns testified that  [*20]  Booker took heightened precautions to ensure that his mail was not tampered with by writing either “legal mail” or a series of X’s across the seal of the envelope, and Kearns saw “no visible tampering or opening of the mail from the time that they were sealed to the time that [he] received them.” Kearns stated that had he suspected that the State was tampering with Booker’s legal mail, he would have objected because he “would definitely have gotten concerned about” the interception of legal mail.

Competent, substantial evidence supports the trial court’s conclusion that the State did not access, tamper with, or interfere with Booker’s legal mail, and we affirm the trial court’s denial of Booker’s Weatherford claim. n6

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Further, even if Booker had successfully established that the State had intruded into Booker’s attorney-client relationship, he would not be entitled to relief under Weatherford unless he could show “prejudice in terms of injury to the defendant or benefit to the State.” Pietri, 885 So. 2d at 272 (“Because the state attorney had no access to the [allegedly stolen] document, Pietri has failed to demonstrate how he was prejudiced by the state attorney prosecuting the case.”).  [*21]  Booker has failed to identify a single fact gleaned from the alleged “mail cover” that was used to Booker’s disadvantage or to the State’s advantage at trial.
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Abandoned Claims

When a defendant fails to pursue an issue during proceedings before the trial court, and then attempts to present that issue on appeal, this Court deems the claim to have been abandoned or waived. See Mungin v. State, 932 So. 2d 986, 995 (Fla. 2006). We conclude that Booker has abandoned the following claims: (1) counsel was ineffective for failing to object to the trial court instructing the jury not to consider witness Page Zyromski’s testimony; (2) counsel was ineffective for failing to call Mick Price to rebut Dr. Barnard’s testimony regarding possible malingering by Booker; (3) counsel was ineffective for failing to object to testimony regarding the introduction of nonstatutory aggravators that involved Booker’s unrelated collateral crimes; and (4) counsel was ineffective for failing to object to prosecutorial statements during closing argument. The record reflects that although Booker attempted to raise these claims in his initial postconviction motion, they were insufficiently pled. Additionally, during  [*22]  the first Huff hearing, Booker did not raise or argue these issues, nor did he request permission to amend the portions of Claim I that addressed these issues. n7 Moreover, Booker failed to reassert these claims in his amendment to Claim I. We conclude that Booker completely failed to pursue these claims in the proceedings before the trial court, and, therefore, they have been abandoned.

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Instead, Booker specifically requested leave to amend only Claims 1(a)(the juror challenge), 1(b)(the circumstances surrounding Booker’s prior felony aggravator), and 1(d)(the failure to present available mitigation).
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Claims Denied Without an Evidentiary Hearing

Because the decision whether to grant an evidentiary hearing on this postconviction motion below was ultimately based on written materials before the court, the ruling was tantamount to a pure question of law, subject to de novo review. See State v. Coney, 845 So. 2d 120, 137 (Fla. 2003). Accordingly, when we review the summary denial of claims raised in the motion below, this Court accepts the movant’s factual allegations as true, and we will affirm the ruling only if the filings show that the movant has failed to state a facially sufficient  [*23]  claim or that there is no issue of material fact to be determined. See generally Amendments to Fla. Rules of Crim. Pro. 3.851, 772 So. 2d 488, 491 n.2 (Fla. 2000)(endorsing the proposition that “an evidentiary hearing is mandated on initial motions which assert . . . legally cognizable claims which allege an ultimate factual basis”). However, to the extent there is any question as to whether the movant has made a facially sufficient claim requiring a factual determination, the Court will presume that an evidentiary hearing is required. See generally id. It is under this standard of review that this claim and the remainder of Booker’s claims will be analyzed.

I. The Prior Violent Felony Aggravator. Booker contends that the trial court erred in summarily denying his claim that counsel was ineffective for failing to present evidence regarding the inapplicability of the prior violent felony aggravator in this case. In 1980, Booker committed an aggravated battery when he threw a flaming substance at a former Florida State Prison guard and burned him. Booker contends that had the trial court ordered an evidentiary hearing on this claim, Booker would have presented witnesses who would have  [*24]  described the context in which this “fire-bomb” incident occurred. Booker asserts that if counsel had presented this testimony to the jury, it would have viewed Booker’s actions in a more sympathetic context and would have viewed his conviction for aggravated battery as evidence in mitigation rather than aggravation.

To establish a claim of ineffective assistance of trial counsel for failing to call certain witnesses, a defendant must allege in the motion “what testimony defense counsel could have elicited from [the] witnesses and how defense counsel’s failure to call, interview, or present the witnesses who would have so testified prejudiced the case.” Nelson v. State, 875 So. 2d 579, 583 (Fla. 2004). n8 If the claim is insufficiently pled, a defendant should be given leave to amend his claim; however, if the claim is not amended, then the denial may be with prejudice. See 875 So. 2d at 583-84.

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Although Nelson was a noncapital case that involved Florida Rule of Criminal Procedure 3.850, we have applied the pleading requirements enunciated in Nelson to rule 3.851 motions to vacate. See Bryant v. State, 901 So. 2d 810, 821-22 (Fla. 2005).
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In his initial motion, Booker failed to allege  [*25]  the names of the witnesses he would have presented to testify with regard to the alleged “fire-bomb” incident which resulted in his conviction for aggravated battery. In accordance with Nelson, the trial court provided Booker with an opportunity to amend this claim. In his amendment, Booker proceeded to name himself, inmate Gary Trawick, and inmate William White as witnesses who might testify as to the alleged threats that the guard had made against Booker in the context of a “guard riot” that occurred after an inmate had fatally stabbed a prison guard. Booker also named attorney Susan Cary, a death row liaison from the Palm Beach County public defender’s office, who would have testified that litigation may have stemmed from the guards’ post-stabbing conduct.

We conclude that the trial court properly denied this claim without an evidentiary hearing because this claim as amended was still insufficiently pled. In the amended motion, Booker made equivocal statements about the substance of the witnesses’ testimony. For example, Booker stated that “inmates Trawick and White might have testified to the threats which the guard, Mr. Thomas, made against Mr. Booker.” (Emphasis supplied.) With  [*26]  regard to attorney Cary, Booker stated that Cary “believes that there may have been litigation stemming from the guards’ post-stabbing conduct which the Department of Corrections may have settled.” (Emphasis supplied.) Thus, while not totally speculative, there is clearly a lack of specificity as to the substance of the testimony that these witnesses would have offered. Cf. Bryant v. State, 901 So. 2d 810, 821-22 (Fla. 2005) (concluding that a 3.851 claim of ineffective assistance was legally insufficient where the substance of the testimony was not described in the motion and the motion did not allege the specific facts to which the witness would testify). Further, Booker failed to allege such pivotal facts as what first-hand knowledge attorney Cary possessed with regard to the “fire-bomb” incident and whether inmates Trawick and White had actually witnessed prison guard Thomas threaten Booker. With these omissions, we conclude that Booker’s amended claim failed to comply with the pleading requirements announced in Nelson. Therefore, we affirm the trial court’s summary denial of this claim.

Moreover, even if this claim had been sufficiently pled, we conclude that Booker still would  [*27]  not have been entitled to relief. The record of the resentencing proceedings demonstrates that the State initially sought to present multiple witnesses to expand upon the “fire-bomb” incident, including an expansion upon possible motives involved in the incident. Counsel for Booker objected to this expansion, contending that the additional testimony would cause the prior violent felony to become a feature of the trial. The trial court agreed, concluded that the prejudice of this type of testimony would outweigh any probative value, and sustained the objection. The trial court further sustained objections to the presentation of testimony with regard to the medical treatment that the guard received for his burns and the length of time that he was hospitalized for the injuries. The trial court only allowed testimony with regard to the incident itself.

Thus, the trial court precluded the introduction of evidence with regard to matters prior to the attack or after the attack and when the guard was transported to the hospital. Given the strict parameters established by the trial court with regard to the admission of evidence of the “fire-bomb” incident, we conclude that, had counsel for Booker  [*28]  attempted to introduce expanded testimony that attempted to address broad circumstances and motives under which the incident may have occurred, it similarly would have been precluded by the trial court. Therefore, we conclude that trial counsel was not ineffective for failing to offer witnesses to present this testimony. See generally Marquard v. State, 850 So. 2d 417, 431 (Fla. 2002)(“Trial counsel cannot be faulted for failing to hire and call a witness whose testimony would not be relevant or admissible . . . .”).

II. Counsel’s Failure to Investigate and Present Mitigation. Under this claim, Booker alleged that his counsel was ineffective for failing to offer evidence of the full scope of Booker’s accomplishments as an influential figure on the literary scene. According to Booker, his counsel failed to educate himself on the topic of poetry. As a result, counsel could not effectively respond to the State’s assertion that a poet should not be treated differently than anyone else. Booker contended that, had counsel been better prepared, he could have shown that sparing Booker’s life has precedence in literature.

As with the prior issue, when Booker initially raised this claim in his  [*29]  3.851 motion, he did not name the witnesses that defense counsel should have called, and he failed to outline the specific substance of their testimony. Rather, Booker made general statements such as the following:

Counsel failed to present available evidence of the full scope and extent of Mr. Booker’s accomplishment as an influential figure on the national and international literary “scene.” Numerous witnesses could have been called to explain to the jury Mr. Booker’s accomplishment in this regard, as could exhibits of Mr. Booker’s work, which would have explained the person in a unique and powerful fashion.As with the prior violent felony claim, the trial court provided Booker with an opportunity to amend his motion with respect to this issue. In his amendment, Booker named six witnesses, stating that they would educate the jury on the literary tradition into which Booker’s work fits and more accurately educate the jury on his contributions to the rich vein of American and international letters into which his works feed and from which he has derived his themes. He also asserted that three additional witnesses who were experts on the poet Ezra Pound could have been called “to show  [*30]  why and how [Pound] had been freed from a death sentence.” In denying this claim, the trial court stated during the Huff hearing:

I’ve already indicated that the weight to be given to this particular mitigating circumstance is extremely slight. The fact that one has learned a skill, whether it’s poetry or cabinet-building or whatever it may be, the practice of law, is not a reason not to impose the death penalty.

If Shakespeare committed this crime, regrettably, I think we would be missing a lot of enjoyable plays. You’re not excused from following the law because, especially after the fact, you become adept at some skill.In the order summarily denying this claim, the trial court elaborated:

During the penalty phase, trial counsel presented more than ample evidence of Defendant’s literary accomplishments while on death row. This Court placed little weight on this evidence. Any alleged failure to present additional and cumulative testimony would have not resulted in a life sentence.As with the prior issue, we conclude that the instant claim was insufficiently pled under Nelson. Booker failed to specify what the precise testimony of each of these witnesses would have been, how their testimony  [*31]  would have differed from the six poetry experts who testified during Booker’s resentencing, or how counsel was deficient in selecting those six experts who did testify.

Moreover, even if this claim had been sufficient, Booker cannot demonstrate that his counsel was ineffective. Following the United States Supreme Court’s decision in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla. 1986) (citations omitted). During the resentencing proceedings,  [*32]  trial counsel called the following six witnesses to testify with regard to Booker’s literary accomplishments while he has been incarcerated:

(1) Professor Deborah Tall, professor of English at Hobart and William Smith College, as well as editor of Seneca Review; (2) Ms. Suzann Tamminen, Editor-In-Chief at Wesleyan University Press; (3) Professor Hayden Carruth, Professor Emeritus at Syracuse University (by video); (4) Professor Stuart Lavin, writer and professor at Castleton State College; (5) Professor Stuart Friebert, poet and professor at Oberlin College; and (6) Professor Williard Spiegleman, professor of English at Southern Methodist University.Booker, 773 So. 2d at 1085 n.8.

Professor Tall testified that Booker is “a remarkably original writer and very, very skilled in his use of language,” that he “has tremendous insight into character, into his own and others,” and that “he writes like no one else. I mean, very very valuable poems.” She also testified that Booker’s book “Tug” earned the endorsement of the first African-American to win the Pulitzer Prize, Gwendolyn Brooks. Professor Hayden Carruth made the following statements via videotape with regard to Booker as a poet:

I don’t  [*33]  think of anyone else whom I would compare with him. I can’t think of other people who had done work similar to his, in somewhat similar situations, particularly in recent years. Black writers who have also been in prison, people like Ethridge Knight (phonetic). But also black writers who have not been in prison.

. . . .

People are interested in him. He is doing work that is on the one hand significantly connected to the work of his colleagues, black writers, and on the other hand, new and different and original. (Inaudible). In that sense I think he is comparable to a good many poets.When asked what Booker’s place is in the literary community, Carruth responded: “He’s a person of consequence, he’s a person of great intelligence and perception.” Professor Lavin testified that Booker’s style was “visionary” and that Booker “transmutes . . . language. He actually transforms it. So when you read his work, it evokes something beyond just what the words themselves say.” Professor Friebert testified with regard to Booker’s involvement in translating the work of “arguably Albania’s most important poet” into English. Professor Friebert also read one of Booker’s poems, titled “Prospectus,” to  [*34]  the jury. Finally, on cross-examination, Friebert verified that poet Ezra Pound was prosecuted as a traitor, but was later pardoned due to the intercession of individuals who admired his work.

Trial counsel is not deficient for failing to present cumulative evidence. See Duckett v. State, 918 So. 2d 224, 237 (Fla. 2005), cert. denied, 127 S. Ct. 103, 166 L. Ed. 2d 78 (2006). Given the extensive testimony with regard to Booker’s accomplishments and value as a poet, had defense counsel called the nine witnesses listed in Booker’s amendment, their testimony would merely have been cumulative to that of the six individuals who testified during the resentencing proceeding. Moreover, Booker cannot demonstrate that he was prejudiced by counsel’s failure to present cumulative evidence, especially in light of the fact that the trial court noted in its denial order that (1) it gave little weight to this mitigator in its sentencing order, and (2) “[a]ny alleged failure to present additional or cumulative testimony would not have resulted in a life sentence.” See also Maxwell, 490 So. 2d at 932 (“It is highly doubtful that more complete knowledge of appellant’s childhood circumstances, mental and emotional problems,  [*35]  school and prison records, etc., would have influenced the jury to recommend or the judge to impose a sentence of life imprisonment rather than death.”). Therefore, we affirm the trial court’s summary denial of this claim.

III. Jury Instruction. Booker next claims that the trial court erred in summarily denying his claim that the failure to give an instruction to the jury regarding the amount of time that Booker was facing in prison if he received a life sentence violates equal protection. This claim is procedurally barred because claims that address the adequacy or constitutionality of jury instructions must be raised on direct appeal. See Rodriguez v. State, 919 So. 2d 1252, 1280 (Fla. 2005). Indeed, on direct appeal, Booker asserted that “the trial court erred by refusing to inform the jury regarding the consecutive sentences Booker received for his prior burglary, sexual battery, and aggravated assault convictions.” Booker, 773 So. 2d at 1087. This Court denied Booker’s claim on the merits, noting that “[t]he introduction of this evidence would open the door to conjecture and speculation as to how much time a prisoner serves of a sentence and distract jurors from the relevant issue  [*36]  of what is the appropriate sentence for the murder conviction.” Id. at 1088 (quoting Bates v. State, 750 So. 2d 6, 11 (Fla. 1999)). Thus, Booker already has challenged the propriety of this jury instruction, and he is procedurally barred from raising subsequent challenges in the instant proceeding. See Thompson v. State, 759 So. 2d 650, 665 (Fla. 2000) (stating that substantive challenges to jury instructions are procedurally barred in postconviction proceedings because the claims could and should be raised on direct appeal). The trial court properly denied this claim without holding an evidentiary hearing.

IV. Crawford. Booker next claims that the trial court erred in summarily denying his claim that that the presentation of hearsay materials to the jury violated Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). In Crawford, the United States Supreme Court held that “[w]here testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Id. at 68. However, in Chandler v. Crosby, 916 So. 2d 728 (Fla. 2005), cert. denied, 127 S. Ct. 382, 166 L. Ed. 2d 275 (2006), we held that Crawford does not apply retroactively.  [*37]  See id. at 729. Booker’s resentencing proceedings were held in 1998, roughly six years before the decision in Crawford was issued. Therefore, Crawford is inapplicable to Booker, and we conclude the trial court’s summary denial of this claim was appropriate.

V. Length of Incarceration. Booker contends that the trial court erred in summarily denying his claim that his incarceration for almost thirty years on death row constitutes cruel and unusual punishment. We conclude that the trial court properly denied this claim without an evidentiary hearing. Booker has already asserted on direct appeal that “to execute him after he has already spent over two decades on death row would constitute cruel and unusual punishment under the Eighth Amendment to the Constitution of the United States.” Booker, 773 So. 2d at 1096. In rejecting this claim, we noted that no federal or state court has accepted the argument that a prolonged stay on death row constitutes cruel and unusual punishment, especially where both parties bear responsibility for the long delay. See id. Additionally, in Lucas v. State, 841 So. 2d 380 (Fla. 2003), this Court affirmed the trial court’s summary denial of a claim that the  [*38]  defendant’s extended stay on death row constituted cruel and unusual punishment. See id. at 389 (“Despite his length of stay, under this Court’s clear precedent, the trial court did not err in refusing to grant him an evidentiary hearing on his claim of cruel and unusual punishment.”). We similarly affirm the trial court’s summary denial of this claim.

VI. Newly Discovered Evidence. In his final claim, Booker asserts that the trial court erred in summarily denying his claim that newly discovered evidence has emerged which demonstrates that to execute him at this time would serve no legitimate penological purpose and would infringe upon the First Amendment right of the public to continue reading his work. In this claim, Booker contends that his literary talent has continued to mature, and that numerous editors would testify to the value of preserving his unique and important voice. According to Booker, the American public has acquired an interest in his work, such that the public’s interest in vengeance is outweighed by its interest in benefiting from Booker’s literary voice. Booker asserts that because of the great benefits to society that he can offer, his life should be spared.

We  [*39]  conclude that the trial court properly denied this claim without an evidentiary hearing. Booker has cited no decision, Florida or otherwise, for the proposition that a death row inmate’s literary accomplishments constitute newly discovered evidence that mandates vacation of a death sentence. Booker similarly provides no legal support for his First Amendment claim. Therefore, we affirm the summary denial of this claim.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s denial of the rule 3.851 motion.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

Courtesy of David Edelstein

Willie F. Walker, Appellant, vs. The State of Florida, Appellee.

No. 3D05-12

COURT OF APPEAL OF FLORIDA, THIRD DISTRICT

August 29, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY:    [*1]

An Appeal from the Circuit Court for Miami-Dade County, Pedro Echarte, Judge. Lower Tribunal No. 03-19572.

DISPOSITION:  

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

COUNSEL:   Bennett H. Brummer, Public Defender, and Clayton R. Kaeiser, Special Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Jennifer Falcone Moore, Assistant Attorney General, for appellee.

JUDGES:   Before GERSTEN, C.J. and COPE, J., and SCHWARTZ, Senior Judge.

OPINION BY:   COPE

OPINION  

COPE, J.

Willie Frank Walker appeals his convictions for attempted second degree murder and other offenses. We affirm in part and reverse in part.

Defendant-appellant Walker contends that the trial court erred by allowing the prosecution to introduce a 911 tape of a call made by a neighbor asking the police to send an officer to investigate what sounded like a domestic disturbance in the apartment of defendant-appellant Walker. The trial court correctly overruled the defense objection which was based on the Confrontation Clause of the United States Constitution. See Davis v. Washington, 126 S. Ct. 2266 (2006).

The defendant also objected that, owing to an evident delay in the neighbor’s placing of the 911 call, the tape  [*2]  did not qualify as a spontaneous statement or excited utterance under the Evidence Code. See § 90.803(1),(2), Fla. Stat. (2004). Assuming for purpose of discussion that there was any error, the statement made by the caller was harmless beyond a reasonable doubt, in view of the other evidence in the case. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). n1

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On the 911 tape, the neighbor said that he could hear screaming and this had been occurring off and on all day. When police officers arrived, they found the victim bloody and badly injured all over her body, with visible scarring remaining at the time of trial.
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The defense argues that it was a double jeopardy violation to convict the defendant in count two of kidnapping and in count three of attempted felony murder. The first step of the double jeopardy analysis is to inquire “whether each offense has an element that the other does not.” Gordon v. State, 780 So. 2d 17, 20 (Fla. 2001) (citations omitted); § 775.021(4)(a), Fla. Stat. (2003). n2 For this analysis we look solely to the statutory elements of each crime. Gordon, 780 So. 2d at 20.

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The crime date for these counts was July 11, 2003.
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We conclude that each offense has a statutory  [*3]  element the other does not. For kidnapping under subparagraph 787.01(1)(a)3., the defendant must forcibly, secretly, or by threat confine, abduct, or imprison the victim against his or her will, without lawful authority, with intent to inflict bodily harm upon or terrorize the victim. n3 While confinement is required, there is no requirement for an overt act which inflicts bodily harm or terrorizes the victim. All that is required is the intent to inflict bodily harm or terrorize.

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Subsection 787.01(1), Florida Statutes (2003), provides:

(1)(a) The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:

1. Hold for ransom or reward or as a shield or hostage.

2. Commit or facilitate commission of any felony.

3. Inflict bodily harm upon or to terrorize the victim or another person.

4. Interfere with the performance of any governmental or political function.

(b) Confinement of a child under the age of 13 is against her or his will within the meaning of this subsection if such confinement is without the consent of her or his parent or legal guardian.
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For attempted felony murder,  [*4]  the statute requires that the defendant either perpetrate or attempt to perpetrate an enumerated felony. n4 The defendant must, in addition, commit, aid, or abet an intentional act that is not an essential element of the enumerated felony and that could, but does not, cause death. Attempted felony murder thus requires an overt act which could, but does not, inflict death. As the Florida Supreme Court said of the predecessor to this statute, “the Legislature clearly evinced its intent to create a new and substantive offense which is to be scored and sentenced separately from the enumerated felony . . . .” Gordon, 780 So. 2d at 22 n.5. We conclude that the two offenses have separate statutory elements.

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Subsection 782.051(1), Florida Statutes (2003), provides:

(1) Any person who perpetrates or attempts to perpetrate any felony enumerated in s. 782.04(3) and who commits, aids, or abets an intentional act that is not an essential element of the felony and that could, but does not, cause the death of another commits a felony of the first degree, punishable by imprisonment for a term of years not exceeding life, or as provided in s. 775.082, s. 775.083, or s. 775.084, which is an offense ranked  [*5]  in level 9 of the Criminal Punishment Code. Victim injury points shall be scored under this subsection.
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The second step of the required double jeopardy analysis is to determine if any of the statutory exceptions are applicable. The exceptions are:

1. Offenses which require identical elements of proof.

2. Offenses which are degrees of the same offense as provided by statute.

3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.§ 775.021(4)(b), Fla. Stat. (2003).

As to exception 1, the elements of proof are not identical. As to exception 3, neither offense is a category 1 lesser of the other. See State v. Florida, 894 So. 2d 941, 947 (Fla. 2005).

As to exception 2, the case law inquires whether the two crimes involve the same “core offense” or “degree variant.” See State v. Florida, 894 So. 2d at 948 (citing Sirmons v. State, 634 So. 2d 153, 154 (Fla. 1994)). The crime of kidnapping punishes the defendant’s confinement of a person against his or her will. See Boyd v. State, 910 So. 2d 167, 184 (Fla. 2005). Attempted felony murder punishes the potential of the defendant’s act to cause death. See State v. Florida, 894 So. 2d at 949. These  [*6]  are different core offenses and are not degree variants of the same crime. We therefore conclude that there was no double jeopardy violation in convicting and sentencing the defendant on count two, kidnapping, and count three, attempted felony murder.

Finally, the defendant argues that it was a double jeopardy violation for him to be convicted in count one of attempted second degree murder and in count three of attempted felony murder. The defendant relies on Mitchell v. State, 830 So. 2d 944, 946-47 (Fla. 5th DCA 2002), which is on point. We agree with the Fifth District. We remand with directions to vacate the conviction and sentence either on count one or count three. The defendant need not be present.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

Courtesy of David Edelstein

LORENZA SESSIONS, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D05-2480

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

[August 29, 2007, Decided

NOTICE:  

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Geoffrey D. Cohen, Judge; L.T. Case No. 03-21278 CF10A.

COUNSEL:   Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.

Bill McCollum, Attorney General, Tallahassee, Richard Valuntas and Katherine Y. McIntire, Assistant Attorneys General, West Palm Beach, for appellee.

JUDGES:   Polen, J. Stone and Gross, JJ., concur.

OPINION BY:   Polen

OPINION  

Polen, J.

Appellant Lorenza Sessions appeals a final judgment and conviction for attempted first degree murder. Following a day of drinking and partying, Sessions assaulted his girlfriend after becoming suspicious that she was cheating on him. Sessions and his girlfriend had a prior altercation the same day at a party they both attended and Sessions left the party. The second assault, which was much more serious, occurred when the girlfriend came home. Sessions did not put up a fight when arrested and told the officers he “did what I had to do.” Sessions was sentenced to life in prison. Sessions specifically appeals the trial court’s denial of his motion to discharge court-appointed counsel and the denial of his motion for continuance after he chose  [*2]  to represent himself at trial. While we find no evidence that Sessions received ineffective assistance of counsel and affirm the trial court’s denial of his motion to appoint new counsel when his second attorney was discharged, we find merit in Sessions’ contention that the trial court erred in denying his motion for continuance.

“A motion for continuance is addressed to the sound judicial discretion of the trial court and absent abuse of that discretion the court’s decision will not be reversed on appeal.” Ziegler v. Klein, 590 So. 2d 1066, 1067 (Fla. 4th DCA 1991 ). “The common thread running through those cases in which a palpable abuse of discretion has been found is that defense counsel must be afforded an adequate opportunity to investigate and prepare any applicable defense.” Weible v. State, 761 So. 2d 469, 472 (Fla. 4th DCA 2000 ) (quoting Smith v. State, 525 So. 2d 477, 479 (Fla. 1st DCA 1988 )). There are seven factors to be considered by the trial court when ruling upon a motion for continuance:

(1) the time actually available for preparation,

(2) the likelihood of prejudice from the denial,

(3) the defendant’s role in shortening preparation time,

(4)  [*3]  the complexity of the case,

(5) the availability of discovery,

(6) the adequacy of counsel actually provided, and

(7) the skill and experience of chosen counsel and his pre-retention experience with the defendant or the alleged crime.D.N. v. State, 855 So. 2d 258, 260 (Fla. 4th DCA 2003).

During the period leading up to his trial, Sessions made several motions to discharge his court-appointed counsel. The trial court held a Nelson n1 hearing three days before the trial was scheduled to begin. Sessions asserted that counsel failed to research and prepare a defense based on the theory that Sessions had been in a diabetic rage, and failed to depose a security guard who witnessed the prior altercation. Sessions alleged he did not know he was diabetic until after he had been arrested and alleged he would not have been drinking all day on the day of the crime had he known that. Sessions asserted he had talked to doctors who told him that high sugar levels can “make you have rages and also can cause temporary memory loss.”

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Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).
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Counsel responded to these allegations by asserting that he did not take the security guard’s deposition because as a matter  [*4]  of trial strategy, it would hurt Sessions’ case as the State could then use it to establish Sessions’ motive. With regard to an incapacity defense caused by diabetes, counsel asserted he had spoken to a doctor about it and the doctor indicated this was an absurd idea.

The trial court determined there was no “specific serious deficiency of [counsel's] efforts on your behalf measurably below that of [a] professionally competent attorney.” Sessions insisted he wanted to represent himself and the trial court questioned him to determine his competency. Throughout the questioning, Sessions admitted he did not know what he was doing, but insisted he did not want his court-appointed counsel to represent him and would have to learn trial procedure as he went along. The trial court told Sessions if it granted his motion, no other attorney would be appointed to represent him. Sessions asked for a continuance to give him time to prepare and to request legal assistance from an agency in Miami. The trial court granted the motion to discharge counsel but informed Sessions the case would not be continued and the trial would begin on Monday.

On the day of trial, Sessions made the following statement  [*5]  to the trial court:

I don’t see how you can find me competent to defend myself even though my lawyer withheld evidence, didn’t try to get evidence, I’m a diabetic, didn’t get my medical record being a diabetic to do with a lot of my charges. . . .I have the right for a proper trial and legal counsel.The trial court reminded Sessions that this was all discussed at the earlier hearing and urged Sessions to use his court-appointed counsel. Sessions refused, again asked for a continuance, and asked that counsel give him the records of his case. Counsel, who was present despite being discharged, responded that he had already given Sessions all the discovery in the case and would supply Sessions with copies of the depositions that he had already given to Sessions. At this point the State asked the trial court to reconsider its decision not to appoint new trial counsel but the trial court declined. Sessions reiterated his request for new counsel and continuances throughout the trial.

“[A] defendant’s invocation of the right to choose his own attorney may not be made in bad faith or ‘for the sake of arbitrary delay or to otherwise subvert judicial proceedings.’” Foster v. State, 704 So. 2d 169, 173 (Fla. 4th DCA 1997 ).  [*6]  When denying Sessions’ motion for continuance, the trial court did not make any findings that Sessions was seeking to delay the trial or making the request in bad faith. While the trial court pointed out that there had been six continuances granted in the course of the case, there was no indication in the record how many of those continuances were due to requests on Sessions’ part. The outcome of the Nelson inquiry, three days prior to trial, meant that Sessions had essentially three days to prepare his defense and obtain his medical records.

While “there is no specified time period which establishes as a matter of law a lack of preparation on the part of counsel so as to mandate a continuance,” we find this was not an adequate length of time to allow for a pro se litigant’s preparation of a defense. Cox v. State, 354 So. 2d 957, 958 (Fla. 3d DCA 1978 ). The State argues that the trial court’s prior denials of his motions to discharge should have put him on notice that the trial court would deny the last motion. While Sessions had been protesting counsel’s representations at other points leading up to the Nelson inquiry, this does not lead to the conclusion that he should have been  [*7]  aware that the trial court was likely to allow him to discharge counsel and represent himself without adequate time to prepare his defense.

While Sessions’ proposed defense that he was in a diabetic rage may be at the outside realm of believability, it was his only defense in a case that was factually against him and might have resulted in the conviction of a lesser included offense. By not allowing him adequate time to either prepare his own defense or obtain private counsel, we find the trial court violated his due process rights. The State itself asked the trial court to appoint new counsel for Sessions, recognizing that he was ill-prepared to represent himself. While the trial court was within its rights in refusing to appoint new counsel, its denial of a continuance to allow Sessions time to prepare and present his affirmative defense to the jury was an abuse of discretion.

We reverse Sessions’ conviction and remand to the trial court for a new trial.

Stone and Gross, JJ., concur.

Courtesy of David Edelstein

EDWARD CLARK, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D05-105

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

August 29, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal from the Circuit Court for Hillsborough County; Daniel Lee Perry, Judge.

DISPOSITION:  

Reversed and remanded; conflict certified.

COUNSEL:   James Marion Moorman, Public Defender, and Robert F. Moeller, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

JUDGES:   FULMER, Judge. DAVIS and WALLACE, JJ., Concur.

OPINION BY:   FULMER

OPINION  

FULMER, Judge.

A jury found Edward Clark guilty of burglary, robbery, false imprisonment, aggravated battery, and battery. We affirm Clark’s judgment and sentence without comment on the two trial-related issues that he raised on appeal. However, we reverse as to four of the monetary charges imposed by the court at sentencing.

Clark preserved his challenges to the four monetary charges (variously denominated as surcharges, costs, or fines) in a motion to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court did not rule on the motion within sixty days, so it is deemed denied. Fla. R. Crim. P. 3.800(b)(2)(B), (b)(1)(B).

The first two items challenged by Clark are surcharges of $ 150 and $ 2 imposed under section 938.085, Florida Statutes  [*2]  (creating a surcharge to fund rape crisis centers), n1 and a court cost of $ 65 imposed under section 939.185, Florida Statutes (creating an “additional court cost” assessable by the board of county commissioners). Section 938.085 became effective on July 1, 2003. See ch. 2003-114, §§ 3, 5, Laws of Fla. Section 939.185 became effective on July 1, 2004. See ch. 2004-265, §§ 88, 109, Laws of Fla. The offenses of which Clark was convicted occurred on October 18, 2002. This court’s precedent precludes the imposition of these two costs because the authorizing statutes became effective after the date of the offenses. See Griffin v. State, 946 So. 2d 610, 614-15 (Fla. 2d DCA 2007). On remand, the $ 152 surcharge and the $ 65 cost shall be stricken.

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The statute actually imposes a surcharge of $ 151.
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The third item challenged by Clark is $ 150 and $ 130 in prosecution and sheriff’s investigative costs imposed pursuant to section 938.27, Florida Statutes (2002). Clark alleges two errors with respect to these costs: that there was no request for costs from the two relevant agencies, see § 938.27(1), and that the court failed to consider Clark’s financial resources and ability to pay, see § 938.27(5).  [*3]  n2 Our precedent requires that costs imposed under the 2002 version of section 938.27 be stricken when either of these conditions has not been satisfied. See, e.g., Taylor v. State, 821 So. 2d 404, 405 (Fla. 2d DCA 2002) (no request for costs); Thibault v. State, 945 So. 2d 646, 647 (Fla. 2d DCA 2006) (court’s failure to inquire into defendant’s financial resources). On remand, the court shall strike the two costs but may reimpose them if the requisites of section 938.27, Florida Statutes (2002), are satisfied, in particular the requirements that the agencies request the costs and provide supporting documentation n3 and that the court considers Clark’s financial resources and ability to pay. See Taylor, 821 So. 2d at 405; Thibault, 945 So. 2d at 647.

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The second requirement was deleted effective July 1, 2003. See ch. 2003-402, §§ 127, 155, Laws of Fla. 3

The 2002 version of section 938.27 provides that investigative costs shall be assessed “if requested and documented” by the relevant agencies. The words “and documented” were deleted from the statute as of July 1, 2003. See ch. 2003-402, §§ 127, 155, Laws of Fla.
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Finally, Clark challenges the imposition of a $ 50 fine pursuant to section 775.083(2), Florida Statutes.  [*4]  The 2002 version of this statute reads, in pertinent part:

The fine is $ 50 for a felony and $ 20 for any other offense. When the defendant enters the plea or is convicted or adjudicated, in a court in that county, the court may order the defendant to pay such fine if the court finds that the defendant has the ability to pay the fine and that the defendant would not be prevented thereby from being rehabilitated or making restitution.§ 775.083(2)(b) (emphasis added). n4 As with the previous cost item, on remand the trial court shall strike the $ 50 fine but may reimpose it if the court finds that Clark has the ability to pay. See Gonzalez v. State, 939 So. 2d 224, 225 (Fla. 2d DCA 2006).

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This statute was amended effective July 1, 2003, such that the factual findings on the defendant’s ability to pay are no longer required. See ch. 2003-402, §§ 117, 155, Laws of Fla. Additionally, the charge is called a “court cost” in the amended statute. § 775.083(2), Fla. Stat. (2004).
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As we did in Griffin v. State, 946 So. 2d at 614-15, we certify conflict with Ridgeway v. State, 892 So. 2d 538 (Fla. 1st DCA 2005) (concluding that imposing the cost required by section 939.185 on a defendant who committed  [*5]  his crime before its effective date did not violate the constitutional prohibition against ex post facto laws).

Reversed and remanded; conflict certified.

DAVIS and WALLACE, JJ., Concur.

Courtesy of David Edelstein

JAMES BAIN, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 2D06-5186

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

August 29, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County; Roger Allan Alcott, Judge.

DISPOSITION:  

Affirmed in part, reversed in part, and remanded.

JUDGES:   SALCINES, Judge. SILBERMAN and KELLY, JJ., Concur.

OPINION BY:   SALCINES

OPINION  

SALCINES, Judge.

James Bain appeals the summary denial of his motion for DNA evidence examination and his pro se motion for DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We affirm the postconviction court’s denial of the motion for DNA evidence examination. We reverse the denial of the Bain’s pro se motion for DNA testing and remand for further proceedings.

On May 23, 1974, Bain was convicted of rape, burglary with an assault, and kidnapping after a jury trial. On September 30, 2003, Bain filed a rule 3.853 motion, which the postconviction court dismissed without prejudice to Bain filing a facially sufficient motion. On May 23, 2006, more than two years later, Bain filed the rule 3.853 motions that are the subject of this appeal. In summarily denying both motions, the postconviction court found that they were untimely, in part because Bain’s delay in refiling was an abuse of process.

However, due to an amendment to section 925.11, Florida Statutes,  [*2]  enacted on June 23, 2006, no time limit applies to rule 3.853 motions for postconviction DNA testing filed on or after October 1, 2005. See Ch. 2006-292, §§ 1, 4, at 2204-7, Laws of Fla. (codified in § 925.11, Fla. Stat. (2006)). Moreover, in dismissing Bain’s 2003 rule 3.853 motion without prejudice, the postconviction court set no filing deadline. Consequently, the postconviction court erroneously denied the 2006 motions as untimely. See Jumper v. State, 903 So. 2d 264 (Fla. 2d DCA 2005) (holding that postconviction court could not deny a refiled rule 3.850 motion as untimely when postconviction court did not set a filing deadline in dismissing defendant’s first rule 3.850 motion without prejudice to refiling.)

Because Bain timely filed his pro se motion for DNA testing the postconviction court should have addressed the motion on the merits. Accordingly, on remand, the postconviction court shall require the State to respond and, if necessary, hold an evidentiary hearing in this matter. See Fla. R. Crim. P. 3.853; Girley v. State, 935 So. 2d 55 (Fla. 1st DCA 2006).

Although Bain’s motion for DNA evidence examination also was timely, it is facially insufficient. Ordinarily, a facially  [*3]  insufficient rule 3.853 motion should be dismissed or denied without prejudice to the refiling of a facially sufficient motion. See, e.g., Harvey v. State, 925 So. 2d 1111 (Fla. 2d DCA 2006); Lemay v. State, 921 So. 2d 853 (Fla. 2d DCA 2006); Scarborough v. State, 906 So. 2d 379 (Fla. 2d DCA 2005). However, Bain requests the same relief for the same reasons in both motions. In light of our holding on Bain’s pro se motion for DNA testing, we affirm the postconviction court’s denial of Bain’s motion for DNA evidence examination.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and KELLY, JJ., Concur.

Courtesy of David Edelstein

DONNA WOLF REYNOLDS, Petitioner, v. STATE OF FLORIDA, Respondent.

Case No. 2D07-574

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

August 29, 2007, Opinion Filed

NOTICE:  

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

PRIOR HISTORY:    [*1]

Peter F. Estrada, Judge.

DISPOSITION:  

Petition granted and order quashed.

COUNSEL:   William B. Fletcher of Fletcher & Pipkin, an association of P.A.s, Sebring, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Respondent.

JUDGES:   SILBERMAN, Judge. WHATLEY, J., and ANDREWS, HORACE A., ASSOCIATE SENIOR JUDGE, Concur.

OPINION BY:   SILBERMAN

OPINION  

Petition for writ of certiorari from the Circuit Court for Highlands County

SILBERMAN, Judge.

Donna Wolf Reynolds seeks certiorari review of a nonfinal order denying a motion for a protective order and to quash a subpoena. The subpoena required her insurance company to produce a transcript of an examination under oath that Reynolds submitted to for her insurance company. We grant the petition on the basis of the attorney-client privilege.

On May 25, 2006, the State charged Reynolds with throwing a deadly missile into an occupied vehicle and aggravated battery based on an incident that occurred on April 27, 2006. Florida Farm Bureau (FFB) insures Reynolds, and the policy may provide coverage to her for civil damages that the other individual in the April incident allegedly suffered. As part of its investigation of the incident,  [*2]  FFB invoked the terms and conditions of its policy with Reynolds and required her to submit to an examination under oath. Present at the examination under oath on July 31, 2006, were Reynolds, her criminal defense counsel, William Fletcher, and the FFB claims adjuster. Fletcher objected to the examination under oath and initially attempted to invoke Reynolds’ Fifth Amendment right against self-incrimination, but then he allowed her to answer the questions. n1

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FFB’s counsel recognized at the hearing on the motion for protective order and to quash subpoena that Reynolds answered the questions because she “understood that if she did not sit for the examination under oath that she would be potentially waiving her insurance coverage.”
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After learning that FFB had conducted an examination under oath, the State issued a subpoena duces tecum to FFB and sought the transcript of the examination for use in the criminal prosecution. FFB and Reynolds objected to the production of the transcript, and FFB filed a motion, in which Reynolds joined, citing the work-product and attorney-client privileges and also asserting the Fifth Amendment privilege against self-incrimination. After a hearing, the  [*3]  trial court denied the motion for protective order and to quash the subpoena and ordered FFB to release the transcript to the State. In its order, the court addressed the work-product privilege and the Fifth Amendment privilege but failed to address the attorney-client privilege. On certiorari review, Reynolds claims that the attorney-client privilege is applicable and that the trial court should have quashed the subpoena.

To be entitled to certiorari relief regarding a nonfinal order granting discovery, the petitioner must show ” ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.’ ” Fassey v. Crowley, 884 So. 2d 359, 363 (Fla. 2d DCA 2004) (quoting Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 648 (Fla. 2d DCA 1995)). Prongs two and three of the test are jurisdictional. Id. Here, the jurisdictional prongs are met in that disclosure of the transcript of the examination under oath would result in material injury that cannot be corrected on postjudgment appeal. Thus, the issue is whether the trial court departed from the essential requirements  [*4]  of the law in allowing the discovery.

We note that the State is incorrect in its assertion that Reynolds did not raise the issue of attorney-client privilege before the trial court. In FFB’s motion and at the hearing on the motion, counsel for FFB addressed the attorney-client privilege based upon Fletcher, Reynolds’ criminal defense counsel, being present at the examination under oath. During the hearing, FFB’s counsel also argued that the attorney-client privilege was not waived. Fletcher, who was present at the hearing, argued the Fifth Amendment privilege. At Fletcher’s request, the court allowed the parties ten days to provide memoranda and additional case law.

Reynolds’ counsel filed a memorandum, arguing that the trial court should quash the subpoena duces tecum “because the material requested constitutes attorney client privileged communications.” Counsel quoted from Vann v. State, 85 So. 2d 133, 138 (Fla. 1956) (quoting J.E. Macy, Annotation, Privilege of Communications or Reports Between Liability or Indemnity Insurer and Insured, 22 A.L.R.2d 659, 660 (1952)), including the following portion:

“According to the weight of authority, a report or other communication made by an insured  [*5]  to his liability insurance company, concerning an event which may be made the basis of a claim against him covered by the policy, is a privileged communication, as being between attorney and client, if the policy requires the company to defend him through its attorney, and the communication is intended for the information or assistance of the attorney so defending him.“(Emphasis added.) Reynolds’ counsel added that “[t]he policy does require the company to defend her and the communication is intended for the information or assistance of the attorney in defending her.” In FFB’s original motion in which Reynolds joined, FFB asserted that the examination under oath “was taken as part of FFB’s investigation of the alleged incident.” FFB also noted that the examination “was taken in part to determine whether the insurer, FFB, might deny coverage or reserve its rights[.]”

Section 90.502, Florida Statutes (2006), provides that communications between a client and a lawyer for the purpose of the client obtaining legal services or the lawyer rendering legal services are privileged, with narrow exceptions. In Vann, the Florida Supreme Court recognized that a communication from the insured to the  [*6]  liability insurance company is privileged if the communication is intended for the purpose of assisting the insurance company’s attorney in defending the insured. 85 So. 2d at 138. Vann did not state that it involved an examination under oath, and neither did Staton v. Allied Chain Link Fence Co., 418 So. 2d 404 (Fla. 2d DCA 1982), the other case that Reynolds relies upon in her petition. However, these cases stand for the general proposition that included within the attorney-client privilege are communications the insured makes to the insurer for its use to fulfill its obligation to defend on the insured’s behalf. Vann, 85 So. 2d at 138; Staton, 418 So. 2d at 405-06.

In Grand Union Co. v. Patrick, 247 So. 2d 474 (Fla. 3d DCA 1971), the plaintiff sought production of an accident report that the insured provided to the insurance company regarding the plaintiff’s fall on the insured store’s premises. Citing Vann, the court held that the report was privileged because it was made by the insured “to its insurer, for investigation by the latter incident to fulfillment of its obligation to defend on behalf of the insured.” Id. at 474. The Grand Union court explained as follows:

The principle  [*7]  under which such reports by an insured to its insurer are privileged is that they are considered relevant to defense of the action and in effect are communications between attorney and client, being information which is to benefit the defense of the cause by counsel, passing through the insurer to counsel.Id.; see also 17A Lee R. Russ, et al., Couch on Insurance 3d § 250:19 (2000) (citing Vann and Grand Union as representing “[w]hat appears to be a majority view . . . that the attorney-client privilege applies to communications between an insured and its liability or indemnity insurer as to an incident possibly giving rise to liability covered by the policy”).

We recognize that the circumstances of FFB’s examination of Reynolds may reflect some adversarial characteristics. The presence of Reynolds’ criminal defense counsel and his initial attempt to invoke his client’s Fifth Amendment rights lends an adversarial element to the communications regarding whether coverage exists. But Reynolds ultimately submitted to the examination under oath to comply with her obligations under the insurance policy. The examination is part of the insurer’s fact-gathering for the dual purposes of (1) defending  [*8]  the insured and (2) determining whether the policy covers the incident giving rise to the claim against the insured. If the insurer denies its duty to defend or denies coverage, then a true adversarial relationship may exist. Here, Reynolds gave the examination under oath as required in a cooperative effort between the insured and the insurer. Pursuant to Vann, Stanton, and Grand Union, the attorney-client privilege is applicable under these circumstances.

Therefore, we conclude that the trial court departed from the essential requirements of the law in allowing the discovery. We grant Reynolds’ petition and quash the trial court’s order that requires FFB to release the transcript of the examination under oath.

Petition granted and order quashed.

WHATLEY, J., and ANDREWS, HORACE A., ASSOCIATE SENIOR JUDGE, Concur.

Courtesy of David Edelstein