| [1] | SUPREME COURT OF FLORIDA |
| [2] | No. 74,172 |
| [3] | 1992.FL.42484 <http://www.versuslaw.com>; 596
So. 2d 1026; 17 Fla. Law W. S 159 |
| [4] | decided: March 5, 1992. |
| [5] | LARRY DONNELL BROWN, APPELLANT, v. STATE OF FLORIDA, APPELLEE. |
| [6] | An Appeal from the Circuit Court in and for Pinellas County, Crockett
Farnell, Judge - Case No. CRC81-2248CFASO-C |
| [7] | Larry Helm Spalding, Capital Collateral Representative and Martin J.
McClain, Chief Assistant Capital Collateral Representative, Office of the
Capital Collateral Representative, Tallahassee, Florida, for
Appellant. |
| [8] | Robert A. Butterworth, Attorney General and Robert J. Krauss,
Assistant Attorney General, Tampa, Florida, for Appellee. |
| [9] | Shaw, C.j. and Barkett, Kogan and Harding, JJ., concur. McDONALD, J.,
concurs in part and dissents in part with an opinion, in which Overton and
Grimes, JJ., concur. |
| [10] | Author: Per Curiam |
| [11] | Per Curiam. |
| [12] | Larry Donnell Brown, a prisoner under sentence of death,
appeals the trial court's summary denial of his first motion to vacate
judgment and sentence filed pursuant to Florida Rule of Criminal Procedure
3.850. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. |
| [13] | Brown was convicted of first-degree murder and burglary
of the victim's swelling. The facts surrounding the murder are set forth
in our opinion in Brown v. State, 473 So.2d 1260 (Fla.), cert. denied, 474 U.S. 1038, 88 L. Ed. 2d 585, 106
S. Ct. 607 (1985). The trial court sentenced Brown to death,
overriding a jury recommendation of life imprisonment. A consecutive life
sentence was imposed in connection with the burglary conviction. The
convictions and sentences were affirmed by this Court on direct appeal. 473 So.2d 1260. On December 16, 1985, the United
States Supreme Court denied Brown's petition for writ of
certiorari. Brown v. Florida, 474 U.S. 1038, 88 L. Ed. 2d
585, 106 S. Ct. 607 (1985). |
| [14] | A motion to vacate judgment and sentence was filed by volunteer
counsel for Brown on December 16, 1987. Subsequently, the
Office of the Capital Collateral Representative (CCR) was substituted as
counsel. On July 8, 1988, CCR filed an amendment to the original rule
3.850 motion augmenting several of the claims raised in the original
motion and adding a number of new claims. A motion to disqualify the trial
judge from presiding over the rule 3.850 proceedings was denied. The
amended rule 3.850 motion was later summarily denied by the trial court.
Among the reasons given for the summary denial was the fact that those
claims raised for the first time in the amended motion were filed after
the two-year limitation for filing a motion to vacate prescribed by rule
3.850. This appeal followed. |
| [15] | Brown raises fifteen claims in this appeal. The fifteen
claims are: I) his trial counsel was ineffective during the penalty phase
of his trial; II) he received ineffective assistance of counsel due to a
conflict of interest on the part of one of his trial attorneys; III) his
trial counsel was ineffective during the guilt phase of the trial; IV)
Brown was illegally sentenced because during the trial the
sentencing judge had been suspended from the practice of law for failure
to pay annual bar dues; V) the jury override was arbitrary and capricious
because the recognized standards for an override were not followed; VI)
presentation of impermissible "victim impact" statement to the court, and
reliance upon and use of this evidence as basis for the jury override
constituted fundamental error; VII) the prosecutor improperly injected
racial prejudice into the trial; VIII) the trial judge erred in refusing
to disqualify himself from presiding over the rule 3.850 proceedings; IX)
Brown's sentencing was contaminated by the presentation of
improper and inadmissible opinion evidence; X) non-statutory aggravating
factors were considered in his sentencing; XI) his sentencing proceedings
were tainted by introduction of his post-Miranda*fn1
silence; XII) the guilt phase instructions to the jury and the prosecutor
in closing argument improperly commented on Brown's failure
to testify; XIII) the State intentionally withheld material exculpatory
evidence and relied upon false and/or misleading testimony; XIV) the trial
court improperly refused to consider the lack of intent to kill in
mitigation; and XV) the trial court failed to consider any aggravating or
mitigating factors other than those set forth in a presentence
investigation report. |
| [16] | As noted above, the trial court ruled that claims V, VII, X, XI, XII,
XIII, and XIV, which were raised for the first time in the amended rule
3.850 motion, are barred under the two-year limitation set forth in rule
3.850,*fn1a
like the thirty-day limitation of Florida Rule of Criminal Procedure
3.851, "was implemented to further some degree of finality in
post-conviction proceedings," Woods v. State, 531 So.2d 79, 83 (Fla. 1988), the two-year limitation does not preclude
the enlargement of issues raised in a timely-filed first motion for
post-conviction relief. However, we need not reach the issue of whether
claims not contained in the original motion may be raised for the first
time by amendment filed after the limitation period has run. As noted
below, the trial court properly ruled that each of the new claims raised
in the amended motion are procedurally barred for reasons other than the
two-year limitation for filing motions for post-conviction
relief. |
| [17] | Of the claims raised in the amended motion, all but the claims of
ineffective assistance of trial counsel and the claim of conflict of
interest, which were raised in the original motion, are procedurally
barred. Raising a different argument in a rule 3.850 motion to relitigate
an issue raised and rejected on direct appeal is inappropriate. Quince v.
State, 477 So.2d 535, 536 (Fla. 1985), cert. denied,
475 U.S. 1132, 90 L. Ed. 2d 204, 106 S. Ct. 1662 (1986). Therefore, claim
V that the override of the jury's recommendation of life was improper, and
claim XIII that the State failed to disclose exculpatory information
received from Brown's co-defendant concerning
Brown's stepson, Ricky Brown, are barred
because they were raised and rejected on direct appeal.
Brown, 473 So.2d at 1264, 1270. Claims
IV, VII, IX, X, XI, XII, XIV, and XV are barred because they could have
been raised on direct appeal. Roberts v. State, 568 So.2d 1255, 1258 (Fla. 1990). None of the decisions relied upon in
connection with these ten claims is such a change in the law as to
preclude a procedural bar under Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067 (1980). |
| [18] | Claim VI before this Court that the trial court considered victim
impact evidence contained in the presentence investigation report and
urged by the prosecutor during presentencing remarks that the victim's
daughter was extremely upset and believed death was appropriate, contrary
to Booth v. Maryland, 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529
(1987), overruled, Payne v. Tennessee, 115 L. Ed. 2d 720, 111 S. Ct. 2597
(1991), is likewise procedurally barred because this claim was not
preserved by timely objection at trial. Jackson v. Dugger, 547
So.2d 1197 (Fla. 1989); Grossman v. State, 525 So.2d
833 (Fla. 1988), cert. denied, 489 U.S. 1071, 103 L. Ed. 2d
822, 109 S. Ct. 1354 (1989). |
| [19] | Next we turn to Brown's contention that he is entitled
to an evidentiary hearing in connection with his claims of ineffective
assistance of trial counsel and conflict of interest. In claim I before
this Court, Brown alleges that his trial counsel was
ineffective for failing to adequately investigate, develop add present
available mitigating evidence of his deprived childhood, and of his mental
and emotional impairment and deficiencies that would have served as a
reasonable basis for the jury recommendation of life. See Torres-Arboledo
v. State, 524 So.2d 403 (Fla.), cert. denied, 488
U.S. 901 (1988); Ferry v. State, 507 So.2d 1373, 1376
(Fla. 1987); Tedder v. State, 322 So.2d 908 (Fla.
1975). Because neither the motion nor record in this case conclusively
demonstrates that Brown is not entitled to relief in
connection with this claim, we agree Brown is entitled to an
evidentiary hearing. See Kennedy v. State, 547 So.2d 912, 913 (Fla. 1989); see also Mills v. Dugger, 559
So.2d 578-79 (Fla. 1990). |
| [20] | We also find a hearing to be warranted in connection with
brown's claims of conflict of interest and ineffective
assistance of counsel during the guilt phase of the trial for failing to
impeach the testimony of key state witnesses that Brown
admitted killing "one white bitch" while threatening to kill his wife
(claims II and III before this Court). Claim II deals with an alleged
conflict of interest on the part of Brown's trial counsel.
This alleged conflict is based on Brown's assertion that one
of his trial attorneys who assisted in cross-examining
Brown's co-defendant and the State's chief witness, George
Dudley, had represented Dudley in connection with a plea of no contest to
a charge of aggravated battery prior to trial and, therefore, owed the
witness a duty of loyalty that conflicted with the attorney's duty to
Brown. |
| [21] | In claim III, Brown combines the two remaining claims of
ineffective assistance of counsel that were raised in his rule 3.850
motion. He first argues that counsel was ineffective for failing to
impeach the testimony of key State witnesses that Brown
admitted killing "one white bitch" while threatening to kill his wife. He
maintains that these witnesses could have been impeached with their own
prior inconsistent statements as well as testimony of others who were
present at the time the admission was allegedly made. Brown
next alleges that counsel was ineffective, for failing to engage an
independent forensic pathologist to rebut the medical examiner's testimony
by establishing that she failed to observe proper protocol during the
autopsy; that her examination of the victim was professionally inadequate;
that her opinions as to the cause of death were unsupportable under
prevailing professional standards; and that her evidence-gathering
techniques were unreliable. |
| [22] | The allegations of conflict of interest and the allegations of
ineffective assistance based on counsel's failure to impeach key witnesses
contained in claims II and III are specific and are not conclusively
rebutted by the record. Therefore, the summary denial of relief in
connection with those claims was also improper. Mills v. Dugger, 559 So.2d
at 578; Kennedy v. State, 547 So.2d at 913. However,
Brown's allegations of ineffective assistance of counsel
based on counsel's failure to engage an independent pathologist are merely
conclusory and therefore warrant summary denial. Kennedy v. State, 547 So.2d at 913. |
| [23] | Finally, we find no merit to Brown's contention in claim
VIII that the trial judge erred in denying Brown's motion to
disqualify the judge from presiding over the rule 3.850
proceedings. |
| [24] | Accordingly, the denial of the motion to disqualify the trial judge is
affirmed. The summary denial of relief in connection with all claims
raised in the amended rule 3.850 motion, except claims I, II, and the
first claim raised in issue III, is also affirmed. The denial of relief in
connection with those claims is reversed and the cause is remanded for an
evidentiary hearing in accordance with this decision. |
| [25] | It is so ordered. |
| [26] | SHAW, C.J. and BARKETT, KOGAN and HARDING, JJ., concur. McDONALD, J.,
concurs in part and dissents in part with an opinion, in which OVERTON and
GRIMES, JJ., concur. |
| [27] | McDONALD, J., concurring in part and dissenting in part. |
| [28] | I agree that Brown is entitled to an evidentiary hearing
on whether he was denied effective assistance of trial counsel. I disagree
that his allegation of an alleged conflict of interest because of past
representation of a witness by one of his lawyers warrants a
hearing. |
| [29] | OVERTON and GRIMES, JJ., concur. |
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| Opinion Footnotes | |
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| [30] | *fn1
Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
1a Florida Rule of Criminal Procedure 3.850 provides in pertinent part:
A motion to vacate a sentence which exceeds the limits provided by law may
be filed at any time. No other motion shall be filed or considered
pursuant to this rule if filed more than two years after the judgment and
sentence become final unless it alleges (1) the facts upon which the claim
is predicated were unknown to the movant or his attorney and could not
have been ascertained by the exercise of due diligence, or, (2) the
fundamental constitutional right asserted was not established within the
period provided for herein and has been held to apply
retroactively. |