ii

This proceeding involves the appeal of the circuit court's

denial of Mr. Finney's motion for postconviction relief. The

motion was brought pursuant to Fla. R. Crim. P. 3.850.

The following symbols will be used to designate references

to the record in the instant case:

"R." -- The record on direct appeal to this Court.

"PC-R." -- The record on instant 3.850 appeal to this Court.

iii

The resolution of the issues in this action will determine

whether Mr. Finney lives or dies. This Court has allowed oral

argument in other capital cases in a similar procedural posture.

A full opportunity to air the issues through oral argument would

be appropriate in this case, given the seriousness of the claims

involved and the fact that a life is at stake. Mr. Finney

accordingly requests that this Court permit oral argument.

iv

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . ii

REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . viii

STATEMENT OF THE CASE AND FACTS . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 3

ISSUE I

THE TRIAL COURT ERRED IN SUMMARILY DENYING APPELLANT’S

CLAIMS WITHOUT AN EVIDENTIARY HEARING AND IN RENDERING A

FACIALLY INSUFFICIENT ORDER WHICH FAILS TO CONCLUSIVELY

REFUTE FACIALLY SUFFICIENT ALLEGATIONS.

. . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ISSUE II

THE TRIAL COURT ERRED IN SUMMARILY DENYING WITHOUT A

HEARING THE MERITORIOUS CLAIM THAT TRIAL COUNSEL RENDERED

INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBJECT TO

PROSECUTORIAL COMMENTS IN VOIR DIRE AND IN CLOSING

ARGUMENT: MISSTATEMENT OF THE LAW; IMPROPER REFERENCE TO

OTHER CRIMES; EXPRESSION OF PERSONAL OPINION AND IMPROPER

CLOSING ARGUMENT IN VIOLATION OF APPELLANT’S RIGHTS UNDER

THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED

STATES CONSTITUTION. . . . . . . . . . . . . . . . . . 10

1. Improper Prosecutorial Comment During Voir Dire. 10

A. Misstatement of the law. . . . . . . . . . . . 10

B. Improper reference to other crimes to be presented

v

2. Improper Closing Argument. . . . . . . . . . . . . 15

vi

ISSUE III

THE TRIAL COURT ERRED IN SUMMARILY DENYING WITHOUT A HEARING

THE MERITORIOUS CLAIM THAT TRIAL COUNSEL RENDERED INEFFECTIVE

ASSISTANCE OF COUNSEL BY FAILING TO ADEQUATELY QUESTION

POTENTIAL JURORS ABOUT THEIR VIEWS ON RACE.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

ISSUE IV

THE TRIAL COURT ERRED IN SUMMARILY DENYING WITHOUT A

HEARING THE MERITORIOUS CLAIM THAT TRIAL COUNSEL RENDERED

INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO ADEQUATELY

CHALLENGE THE PROSECUTOR IN HIS SUCCESSFUL EXCLUSION OF

JURORS WHO WERE GENERALLY OPPOSED TO THE DEATH PENALTY BUT

INDICATED THAT THEY WOULD KEEP AN OPEN MIND. . . . . . 17

ISSUE V

THE TRIAL COURT ERRED IN SUMMARILY DENYING WITHOUT A

HEARING THE CLAIM THAT APPELLANT’S TRIAL ATTORNEY ERRED IN

FAILING TO PRESENT MITIGATION WITNESSES AT THE PENALTY

PHASE IN VIOLATION OF APPELLANT’S RIGHTS UNDER THE SIXTH,

EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION.

. . . . . . . . . . . . . . . . . . . . . . . . . . . 20

ISSUE VI

COUNSEL WAS INEFFECTIVE FOR FAILURE TO PROVIDE MR. FINNEY'S

MENTAL HEALTH EXPERT WITH ADEQUATE BACKGROUND INFORMATION

TO PERMIT A MEANINGFUL EVALUATION OF MR. FINNEY FOR THE

PRESENCE OF MITIGATION OR NEGATION OF SPECIFIC INTENT.

. . . . . . . . . . . . . . . . . . . . . . . . . . . 23

ISSUE VII

THE TRIAL COURT ERRED IN DENYING WITHOUT A HEARING THE

CLAIM THAT APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE IN

FAILING TO RETAIN AN EXPERT TO TESTIFY AS TO THE CRIME SCENE.

. . . . . . . . . . . . . . . . . . . . . . . . . . . 25

ISSUE VIII

THE TRIAL COURT ERRED IN FAILING TO OVERSEE AND ENSURE THE

RENDITION OF EFFECTIVE POSTCONVICTION COUNSEL AS REQUIRED

BY SECTION 27.711(12) FLORIDA STATUTES AND IN FAILING TO

vii

CONDUCT A NELSON HEARING ON THE COMPLAINT OF APPELLANT AS

TO THE COMPETENCE OF HIS ORIGINAL POSTCONVICTION COUNSEL,

MR. JACK CROOKS. A CURSORY EXAMINATION OF APPELLANT’S

POSTCONVICTION COUNSEL’S PRESENTATION OF HIS MOTION FOR

POSTCONVICTION RELIEF SHOWS DEFICIENCIES THAT WARRANT A

REMAND OF THE CASE TO THE TRIAL COURT.

. . . . . . . . . . . . . . . . . . . . . . . . . . . 26

1. Support in Statute and Case law for this result. 26

2. Factual Basis for this claim. . . . . . . . . . . 29

A. Original 3.50 filed on behalf of appellant. 29

B. Postconviction counsel’s deficient pleading of

the claim relating to the prosecutor’s

unchallenged misstatement of the law with respect

to the decision to seek the death penalty. . 30

C. Postconviction counsel’s deficient presentation

of the claim that the prosecutor improperly

referred to another crime to be used as a

statutory aggravator in the course of his voir

dire.

. . . . . . . . . . . . . . . . . . . . . . 33

D. Postconviction counsel’s deficient pleading and

presentation of the claim regarding improper

arguments from the prosecutor in closing arguments.

. . . . . . . . . . . . . . . . . . . . . . 38

E. Postconviction counsel’s deficient pleading and

presentation of the claim regarding trial

counsel’s failure to bring mitigation witnesses.

. . . . . . . . . . . . . . . . . . . . . . 42

F. Postconviction counsel deficiently pleaded the

Ake Claim that trial counsel was deficient in

failing to provide the trial expert, Dr. Michael

Gamache with all relevant data. . . . . . . 48

G. Postconviction counsel deficiently pleaded both

the motion for rehearing and the notice of appeal.

. . . . . . . . . . . . . . . . . . . . . . 52

ISSUE IX

viii

FLORIDA'S CAPITAL SENTENCING STATUTE IS UNCONSTITUTIONAL ON

ITS FACE AND AS APPLIED FOR FAILING TO PREVENT THE

ARBITRARY AND CAPRICIOUS IMPOSITION OF THE DEATH PENALTY

AND FOR VIOLATING THE GUARANTEE AGAINST CRUEL AND UNUSUAL

PUNISHMENT IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. TO

THE EXTENT THIS ISSUE WAS NOT PROPERLY LITIGATED AT TRIAL

OR ON APPEAL, MR. FINNEY RECEIVED PREJUDICIALLY

INEFFECTIVE ASSISTANCE OF COUNSEL. . . . . . . . . . . 54

ISSUE X

MR FINNEY’S TRIAL WAS FRAUGHT WITH PROCEDURAL AND

SUBSTANTIVE ERRORS WHICH CANNOT BE HARMLESS WHEN VIEWED AS

A WHOLE, SINCE THE COMBINATION OF ERRORS DEPRIVED HIM OF

THE FUNDAMENTALLY FAIR TRIAL GUARANTEED UNDER THE SIXTH,

EIGHTH, AND FOURTEENTH AMENDMENTS. . . . . . . . . . . 56

ISSUE XI

MR. FINNEY IS INNOCENT OF THE DEATH PENALTY. MR. FINNEY

WAS SENTENCED TO DEATH IN VIOLATION OF THE EIGHTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.57

CONCLUSION AND RELIEF SOUGHT . . . . . . . . . . . . . . . 59

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . 59

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . 60

ix

Ake v. Oklahoma,

470 U.S. 68 (1985) . . . . . . . . . . . . . . . . . . 29

Allen v. Butterworth,

756 So. 2d 52 (Fla. 2000) . . . . . . . . . . . . . . 6

Blake v. Kemp,

758 F.2d 523, 529 (11th Cir. 1985) . . . . . . . . . . 23

Blanco v. Singletary,

943 F.2d at 1500-01 (11th Cir.1991) . . . . . . . . . 46

Demps v. State,

416 So.2d 808, 809 (Fla. 1982) . . . . . . . . . . . . 9

Derden v. McNeel,

938 F.2d 605 (5th Cir. 1991) . . . . . . . . . . . . . 57

Eutzy v. Dugger,

746 F.Supp. 1492 (N.D. Fla. 1989) . . . . . . . . . . 51

Finney v. State,

660 So. 2d 674 (Fla. 1995) . . . . . . . . . . . . . . 1

Furman v. Georgia,

408 U.S. 238 (1972) . . . . . . . . . . . . . . . . . 56

Gaskin v. State,

737 So.2d 509, 516 (Fla. 1999) . . . . . . . . . . . . 52

Godfrey v. Georgia,

446 U.S. 420 (1980) . . . . . . . . . . . . . . . . . 55

Heath v. Jones,

941 F.2d 1126 (11th Cir. 1991) . . . . . . . . . . . . 57

Heiney v. Dugger,

558 So. 2d 398 (Fla. 1990) . . . . . . . . . . . . . . 8

Heiney v. State,

558 So.2d 398, 400 (Fla. 1990) . . . . . . . . . . . . 9

x

Heiney v. State,

620 So.2d 171 (Fla. 1993) . . . . . . . . . . . . . . 45

Hildwin v. Dugger,

654 So.2d 107 (Fla.1995) . . . . . . . . . . . . . . . 51

Holland v. State,

503 So.2d 1250, 1252-53 (Fla. 1987) . . . . . . . . . 9

Huff v. State,

622 So. 2d 982 (Fla. 1993) . . . . . . . . . . . . . . 10

Jackson v. Dugger,

837 F.2d 1469 (11th Cir. 1988) . . . . . . . . . . . . 56

Jackson v. Herring,

42 F.3d 1350, 1367 (11th Cir.1995) . . . . . . . . . . 46

Johnson v. Singletary,

612 So. 2d 575 (Fla. 1993) . . . . . . . . . . . . . . 58

Jones v. State,

591 So. 2d 911 (Fla. 1991) . . . . . . . . . . . . . . 58

Lightbourne v. Dugger,

549 So.2d 1364, 1365 (Fla. 1989) . . . . . . . . . . . 9

Mason v. State,

489 So. 2d 734 (Fla. 1986) . . . . . . . . . . . . . . 8

Middleton v. Dugger,

849 F.2d 491, 493 (11th Cir.1988) . . . . . . . . . . 46

Mordenti v. State,

711 So.2d 30 (Fla. 1998) . . . . . . . . . . . . . . . 7

Mullaney v. Wilbur,

421 U.S. 684 (1975) . . . . . . . . . . . . . . . . . 55

Murphy v. Puckett,

893 F.2d 94 (5th Cir. 1990) . . . . . . . . . . . . . 56

Nelson v. State,

Ornelas v. United States,

xi

517 U.S. 690,

116 S. Ct. 657,

134 L. Ed.2d 911 (1996) . . . . . . . . . . . . . . . 8

Parker v. State,

Patton v. State,

2000 WL 1424526 (Florida, September 28, 2000) . . . . 6

Pearson v. State,

657 So. 2d 21 (Fla. 2d DCA 1995) . . . . . . . . . . 3, 6

Peede v. State,

748 So. 2d 253 (Fla. 1999) . . . . . . . . . . . . 27, 54

People v. Wright,

488 N.E.2d 973 (Ill. 1986) . . . . . . . . . . . . . . 45

Profitt v. Florida,

428 U.S. 242 (1976) . . . . . . . . . . . . . . . 54, 55

Richmond v. Lewis,

113 S. Ct. 528 (1992) . . . . . . . . . . . . . . 54, 56

Ross v. State,

474 So.2d 1170, 1174 (Fla. 1985) . . . . . . . . . . . 45

Sawyer v. Whitley,

112 S. Ct. 2514 (1992) . . . . . . . . . . . . . . . . 58

Scott (Abron) v. Dugger,

604 So. 2d 465 (Fla. 1992) . . . . . . . . . . . . . . 58

Songer v. State,

544 So.2d 1010, 1011 (Fla. 1989) . . . . . . . . . . . 46

State v. Gunsby,

670 So. 2d 920 (Fla. 1996) . . . . . . . . . . . . . . 57

Steele v. Kehoe,

747 So. 2d 931 (Fla. 1999) . . . . . . . . . . . . 28, 54

Stephens v.State,

1

748 So. 2d 1028 (Fla. 2000) . . . . . . . . . . . . . 7

Williams v. State,

2000 WL 1726782 (Fla. 2000) . . . . . . . . . . . 28, 54

Appellant was charged by indictment dated February 13, 1991,

with first degree murder, sexual battery and dealing in stolen

property (R.16-19). The sexual battery charge was nolle

prossed. (R.143).

The case proceeded to trial on September 14-18, 1992. The

jury returned verdicts of guilty on all three counts (R-93).

In the penalty phase, appellant, over a defense objection was

shackled (R. 815). The jury by a vote of 9-3 recommended the

death penalty (R.98).

On November 10, 1992, after denying as legally insufficient

appellant’s motion for disqualification, the trial judge imposed

a death sentence for the murder conviction, a sentence of life

imprisonment for the armed robbery conviction and a fifteen-year

sentence for the conviction of dealing in stolen property

(R.143).

On direct appeal, the Florida Supreme Court affirmed Mr.

Finney’s convictions and sentences, Finney v. State, 660 So. 2d

the respect of timeliness. Presumably the order being

appealed, that which granted a hearing on one claim but denied

same on all four others, was rendered on June 9, 1999. Fla. R

Crim Pr. 3.850(g) requires such motions to be filed within 15

days. This motion was filed on May 4, 2000 nearly one year

later.

2

674 (Fla. 1995).

On April 16, 1999, Mr. Jack Crooks, then of Capital

Collateral Regional Counsel Middle, (CCRC-M), filed on behalf of

appellant a thirty-page final amended motion for postconviction

relief. This motion contained five claims. On November 17,

1999, appellant filed a pro-se "Motion for Appointment of

Competent Counsel" (PC-R. 199-204). No hearing pursuant to

on appellant’s pro-se motion.

The circuit court held a Huff hearing on appellant’s 3.850

motion on May 26, 1999, (PC-R. 272-297).

As a result of this Huff hearing, an Order was entered on

June 9, 1999, by the Circuit Court granting an evidentiary

hearing on only one of appellant’s five claims (PC-R. 190). The

court did not, in this ruling, delineate any reasons for denial

of the other four claims. Postconviction counsel Mr. Crooks,

then filed on May 4, 2000, a "Motion for Rehearing and To Grant

his motion for rehearing on May 17, 2000.

3

On June 4, 2000, Mr. Crooks then filed a notice of appeal

of this order which denied his motion for rehearing (PC-R. 236

).

During the pendency of this appeal, Mr. Crooks left the

employ of CCRC-Middle and undersigned counsel assumed the case.

Undersigned counsel immediately filed a motion to remand

jurisdiction from this court to the circuit court so that it

could render a final order in which it actually explained its

reasons for the denial of appellant’s various claims. While

this motion was pending, the trial court, upon prodding from the

Office of State Attorney which was aware of this problem,

produced a written final order denying appellant’s claims on

October 31, 2000, nunc pro tunc to the date of the Huff Hearing,

May 26, 1999.

This Court denied appellant’s motion to remand the cause

back to the trial court and this appeal proceeds.

The trial court order was illegal, as it lacked jurisdiction

to render the order. Upon appellant’s filing a Notice of Appeal,

the trial court was divested of all jurisdiction. See Pearson v.

additionally defective because it fails to adequately explain

its reasons for denying appellant’s facially sufficient

4

allegations.

The trial court erred in denying an evidentiary hearing on

the claim that appellant’s trial counsel was ineffective for:

failing to object to improper prosecutorial comments which

pervaded both voir dire and closing argument, failing to object

to an improper aggravator and failing to object to a

prosecutor’s closing argument.

The trial court erred in denying without a hearing the claim

that appellant’s trial counsel was ineffective in failing to

adequately question potential jurors about their views on race.

The trial court erred in denying without a hearing the claim

that appellant’s trial counsel was ineffective in failing to

challenge the prosecutor in his successful exclusion of

potential jurors who were opposed to the death penalty but

promised to keep an open mind.

The trial court erred in denying without a hearing the claim

that appellant’s trial counsel was ineffective in failing to

present a greater breadth of mitigation evidence.

The trial court erred in denying without a hearing the claim

that appellant’s rights under Ake v. Oklahoma, 470 U.S. 68

(1985) were violated when his trial counsel failed to provide

his psychiatrist with all the necessary information in

evaluating appellant’s condition.

5

The trial court erred in denying without a hearing the claim

that appellant’s trial counsel was ineffective in failing to

retain a crime scene expert.

The trial court erred in failing to oversee and ensure the

rendition of effective postconviction counsel as required by

Section 27.711(12) Florida Statutes in failing to conduct a

Nelson Hearing on the complaint of appellant as to the

performance of his original postconviction counsel, Mr. Jack

Crooks.

As a result of the ineffectiveness of appellant’s previous

postconviction counsel, his many meritorious claims are

minimally and negligently pleaded in a manner that may well have

harmed his prospect for an evidentiary hearing.

Execution by lethal injection violates appellant’s rights

under the Eighth amendment to the United States Constitution.

The Florida Capital Punishment Statute is

unconstitutionally arbitrary and violates appellant’s rights

under the Fifth, Sixth, Eighth and Fourteenth Amendments to the

United States Constitution.

Appellant’s trial was fraught with procedural and

substantive errors which violate his rights under the Sixth,

Eighth, and Fourteenth amendments to the United States

Constitution.

6

Appellant is innocent of the death penalty and was sentenced

to death in violation of the Eighth and Fourteenth Amendments to

the United States Constitution.

The trial court’s order of denial is illegal. Up until

October 31, 2000, there had never been entered a written order

of denial which actually explained the trial court’s reasons for

denying appellant’s motion. On that date, the trial court filed

an Order of Denial and entered it nunc pro tunc to the date of

the evidentiary hearing, May 26, 1999.

The Circuit Court lacked jurisdiction to enter this Order.

As of May 4, 2000, when appellant had filed his notice of

appeal, this case had been in the Florida Supreme Court. The

trial court had been divested of jurisdiction at the time of the

entry of the nunc pro tunc order. The final order is

accordingly invalid. See Pearson v. State, 657 So. 2d, 21 (Fla.

2d DCA 1995).

The trial court order is also in error for having denied

summarily appellant’s motion without an evidentiary hearing and

without adequately explaining its actions. It largely

7

synposizes the history of the case, carefully lays out what

appellant’s claims are but only briefly and superficially deals

with some of the claims in terms of analysis. It then affixes

a large portion of the trial transcript to the order as if to

add some sort of weight to its position.

As shall be argued with particularity in the body of this

brief, legally sufficient claims were asserted by appellant in

his motion for postconviction relief. Yet the trial court fails

to sufficiently explain its reasons for summarily denying each

claim without the benefit of a hearing. Consequently its order

is far below any threshold of legal acceptability. See Patton v.

State, 2000 WL 1424526 (Florida, September 28, 2000).

In Allen v. Butterworth, 756 So. 2d 52 (Fla. 2000) the

Supreme Court of Florida held that in addition to the

unnecessary delay and litigation concerning the disclosure of

public records, another major cause of delay in postconviction

cases was the failure of the circuit courts to grant evidentiary

hearings when they are required. Id. at 32.

The Supreme Court of Florida in its proposed amendments to

Florida Rules of Criminal Procedure 3.851. 3.852 and 3.993 (no

SC96646) (4/14/00) states:

the provision addressing evidentiary

hearings on initial postconviction motions.

As previously noted we have identified the

8

denial of evidentiary hearings as the cause

of unwarranted delay and we believe that in

most cases requiring an evidentiary hearing

on initial postconviction motions will avoid

that delay" Id at 9.

This Court is not required to accord particular deference

to any legal conclusion of constitutional deficiency or

prejudice under the Strickland test for evaluating the

effectiveness of counsel. The alleged ineffectiveness of

counsel is a mixed question of fact and law. While an appellate

court might defer as a question of trial court factual

determination on the issue of the omission constituting a

deviation, the issue of whether such an omission resulted in

prejudice is a de novo determination by the appellate court.

This Court has stated such a principle in the decision of

Stephens v.State, 748 So. 2d 1028 (Fla. 2000). This Court

recognized the trial court’s superior vantage point in assessing

the demeanor and believability of witnesses.

Yet despite this deference to a trial

court’s findings of fact, the appellate

court’s obligation to independently review

mixed questions of fact and law of

constitutional magnitude is also an

extremely important appellate principle.

This obligation stems from the appellate

court’s responsibilities to ensure that the

law is applied uniformly in decisions based

on similar facts and that the appellant’s

9

representation is within constitutionally

acceptable parameters. That is especially

critical because the Sixth Amendment right

to assistance of counsel is predicated on

the assumption that counsel "plays the role

necessary to ensure that the trial is fair"

Stephens, 740 So.2d at 1032.

The United States Supreme Court addressed this identical

issue in another context, as applied to the area of unreasonable

searches and seizures.

A policy of sweeping deference [to the trial

court’s legal conclusions] would permit "in

the absence of any significant difference in

the facts," "the Fourth Amendment’s

incidence to turn on whether turn on whether

different trial judges draw general

conclusions that the facts are insufficient

to constitute probable cause." Such varied

results would be inconsistent with the idea

of a unitary system of law. This as a

matter of course would be unacceptable. In

addition, the legal rules for probable cause

and reasonable suspicion acquire content

only through application. Independent

review is therefore necessary if appellate

courts are to maintain control of, and to

clarify, the legal principles.

Finally, de novo review tends to unify

precedent.

(Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 657, 134 L.

Ed.2d 911 (1996))

Accordingly, appellant requests this Court to order an evidentiary

hearing on his claims. Mr. Finney’s claims involve issues requiring

full and fair Rule 3.850 evidentiary resolution. See, e.g., Heiney v.

10

Dugger, 558 So. 2d 398 (Fla. 1990); Mason v. State, 489 So. 2d 734

(Fla. 1986).

Some fact-based postconviction claims by their nature can only be

considered after an evidentiary hearing. Heiney v. State, 558 So.2d

398, 400 (Fla. 1990). "The need for an evidentiary hearing presupposes

that there are issues of fact which cannot be conclusively resolved by

the record. When a determination has been made that a defendant is

entitled to such an evidentiary hearing (as in this case), denial of

that right would constitute denial of all due process and could never

be harmless." Holland v. State, 503 So.2d 1250, 1252-53 (Fla. 1987).

"Accepting the allegations . . . at face value, as we must for purposes

of this appeal, they are sufficient to require an evidentiary hearing."

Lightbourne v. Dugger, 549 So.2d 1364, 1365 (Fla. 1989)(emphasis

added).

Mr. Finney has pleaded substantial, factual allegations which go

to the fundamental fairness of his conviction and to the

appropriateness of his death sentence. "Because we cannot say that the

record conclusively shows appellant is entitled to no relief, we must

remand this issue to the trial court for an evidentiary hearing."

Demps v. State, 416 So.2d 808, 809 (Fla. 1982).

Under Rule 3.850 and this Court's well-settled precedent, a

postconviction movant is entitled to an evidentiary hearing unless "the

motion and the files and the records in the case conclusively show that

11

the prisoner is entitled to no relief." Fla. R. Crim. P. 3.850;

Hoffman; Lemon; O'Callaghan; Gorham. Me. Finney has alleged facts

which, if proven, would entitle him to relief. Furthermore, the files

and records in this case do not conclusively show that he is entitled

to no relief.

The trial court's denial of Mr. Finney's Rule 3.850 motion stands

in stark contrast to the clear and unmistakable requirements of law.

It makes no use of the record or files in this case to show

conclusively that Mr. Finney is not entitled to relief. It attempts

no analysis whatsoever. The order ignores the express requirements of

Rule 3.850 and is oblivious to the substantial body of case law from

this Court holding that courts must comply with the rule and, at least,

conduct a hearing. Huff v. State, 622 So.2d 982 (Fla. 1993).

As in Hoffman, this Court has "no choice but to reverse the order

under review and remand," 571 So.2d at 450, and order a complete

evidentiary hearing on Mr. Finney's 3.850 claims.

12

In the trial of appellant, the voir dire of the jury panel

was conducted by two individual assistant state attorneys. The

first state attorney questioned the jurors relative to the guilt

phase of the trial, while a second state attorney, Nicholas Cox,

queried the panel as to the penalty phase (R.1-238).

The second assistant state attorney, discussing penalty

phase issues, misstated the law without an objection.

Appellant’s trial counsel was manifestly ineffective in not

objecting to these comments by him:

"...and we're relying on the facts of this

murder, which the Legislature says we can do, --

if certain facts appear, we can still argue for

the death penalty to you -- if the State were to

go forward with no facts -- which wouldn't happen

here -- but if that were the case, do you think

you can still consider the death penalty based

upon the facts of the murder itself." (R.130-

131).

" And the law says that if certain aggravating

factors, one or more, -- I mean, you just need

one..."

(R. 152).

These comments are not a correct statement of the law, which

requires a weighing of the aggravating and mitigating factors.

Counsel's failure to object and move for a mistrial was ineffective and

prejudicial to the defendant.

13

Trial counsel failed to object to the prosecutor's misstatement

of the law as it related to the weighing of aggravators and mitigators.

The prosecutor’s statements gave the jury the impression that if the

State proved "just one" aggravator, then death would be appropriate (R.

152).

Next, the assistant state attorney, Mr. Cox, plants and

cultivates the impression that "other evidence" would be

presented in furtherance of or in support of the state’s

position for the death penalty the second so-called "penalty"

phase. This is not merely an unwitting, verbal slip, it is a

seemingly calculated ploy repeated through his line of inquiry

especially in the following parts:

"But one thing that is important is that if Mr.

Finney is convicted of murder in the first degree

fairness to him, you know, that you can keep an

open mind, okay, because like I said, it's a

whole completely different hearing. You will

probably hear new evidence, new testimony and

Finney and the people that regardless if you're

a person who believes strongly in the death

penalty or just believes in it moderately, can

consider that evidence and not make a decision

both the people and Mr. Finney that you will not

14

consider what may ultimately have to happen." (R.

that you wouldn't make a decision and you

wouldn't commit yourself until you hear the

second phase?" (R. 144) (emphasis added). " So,

you would be willing to listen to the additional

evidence and testimony in the second phase."

(R. 144)

The assistant state attorney’s transgression occurred when

he repeatedly, almost with seeming calculation, alluded to

"additional evidence," which he would be presenting at the

penalty phase of the trial.

The assistant state attorney alluded to the evidence which

ultimately was presented at the penalty phase which was that the

appellant had been convicted of a prior violent felony to wit a

sexual battery (R901) and thus this was an appropriate

aggravating circumstance to consider under Section 921.141 (5)

Florida Statutes.

The clear inference reinforced by the assistant state

attorney was that more evidence than that which would be

presented at guilt phase would be available to the jury in the

second phase.

The trial court’s order of denial clearly fails to

adequately refute this facially sufficient allegation regarding

the improper prosecutorial statements which were made in the

course of voir dire.

15

The court ruled as follows:

Defendant Finney also argues that the

prosecution extracted promises from the

jurors regarding their ability to be fair

and alluded to additional evidence they

would hear in the second phase. The

transcript clearly establishes that the

prosecutor asked the jury to promise that

they would keep an open mind." (Exhibit D -

Transcript, page111). Furthermore,

Defendant’s contention falls under the

analysis of Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L. Ed 2d 624

(1984). It is the obligation of counsel to

determine in voir dire if a juror can be

fair and unbiased as well as the penalty

phase.

Order at 12.

This finding of the Order vacuously glosses over the essence

of the allegation. The court ignores the inference of the

comments by the prosecutor, that the jury will be receiving

"additional" evidence which he cannot disclose until the

commencement of second phase and which they will need to

evaluate before they can decide the question of life or death.

The prosecutor injected his personal feelings into the voir dire

without an objection by defense counsel when the following statement

was made while discussing the juror’s feelings about the death penalty:

"Some of you may think, Gee, it [the death

penalty] should be imposed almost every time

16

(R. 110,111) (emphasis added).

This statement is a personal commentary that the prosecutor

believes every first-degree murder deserves the death penalty and is

highly prejudicial to the defendant because it sends a message to the

ultimate panel that death is the only verdict. Counsel was ineffective

for failing to object to such a statement and in failing to make a

motion for mistrial.

Counsel failed to object to personal comments made by the

prosecutor, one of which was that the murder was disgusting as follows:

" Thirty dollars to pawn that VCR...that is the

value of Sandra Sutherland's life to Charles

(R. 900,901) (emphasis added).

Failure to object by defense counsel was both ineffectiveness and

prejudicial to the defendant.

The prosecutors' acts of misconduct both individually, and

cumulatively, deprived Mr. Finney of his rights under the Sixth,

Eighth, and Fourteenth Amendments.

Defense counsel rendered prejudicially deficient performance in

failing to object to the prosecutor's inflammatory, prejudicial and

misleading arguments. The prosecutor exceeded the boundaries of proper

argument throughout Mr. Finney’s case.

17

As a result of the State's misconduct, and defense counsel's

deficient performance, Mr. Finney's case was not given a fair

adversarial testing. Therefore, Mr. Finney's conviction and sentence

are in violation of the United States Constitution. An evidentiary

hearing is required.

18

Trial counsel performed only a perfunctory voir dire (R. 2-242).

She failed to inquire about possible racial prejudice, even though the

issue was brought to her attention by a juror, Ms. Kinsey. Ms. Kinsey

had stated, "I thought it was a racial thing at the time" (R. 168).

She seemed to be referring to the pre-trial press accounts of a black

man killing a white woman.

Counsel was ineffective for failing to inquire of the juror who

raised the racial issue as to exactly what she meant, and whether race

would have any effect upon her in deciding the case and providing a

fair trial to the defendant. Counsel should have inquired about racial

bias with all the jurors. She was also ineffective for failing to

request that the court inquire about such issues.

Mr. Finney was an African-American accused of murdering a white

woman, which should have put counsel on notice to inquire about the

possibility of racial bias.

Counsel was ineffective for failing to have the court inquire of

the jurors at the conclusion of the trial as to whether the jurors had

discussed or mentioned race during their deliberations.

Since racial questions existed in at least one juror’s mind, and

19

neither counsel nor the court inquired about that issue with the

remaining jurors, it is difficult, if not impossible, to determine

whether it played any part in the minds of the jurors or was considered

in their deliberations, all to the detriment of the defendant. The

danger of such racial bias entering into the verdict cannot be

tolerated, and even the suggestion that it might have influenced the

jury would be so prejudicial to the defendant that failure of the

defense counsel to pursue it would be manifest ineffectiveness on the

part of counsel.

Trial counsel failed to object to the court and the prosecutor

excluding jurors for cause who were opposed to the death penalty, even

though they had indicated they would keep an open mind and follow the

law (R. 118,132,174,193,218,221).

The jurors in question are Mr. Jennings and Mr. Silas who were

excused for cause by the State and the Judge even though they had fully

indicated they would follow the law even with their opinions about the

death penalty. Mr. Jennings had told Ms. Vogel during her inquiry that

he was opposed to the death penalty, and during second phase

20

questioning he stated as follows:

MR. COX: Okay, all right. Mr. Jennings, you

indicated earlier, I believe, to Ms. Vogel that

you were against capital punishment?

MR. JENNINGS: Right. I don't believe in an eye

for an eye.

MR. COX: Mr. Jennings, let me ask you, sir: If

a person or if Mr. Finney in this case were

convicted of first-degree murder, are you

indicating to us under no circumstances could you

impose capital punishment?

MR. JENNINGS: No, sir.

(R. 118).

MS. PITTMAN: Okay. My question is, though: Are

you saying that even if you’re selected as a

juror and Judge Sexton reads you these

instructions, you see, you have to keep an open

mind that --

MR. JENNINGS: I'll keep an open mind, but I

won't go for the death penalty.

MS. PITTMAN: But you can keep an open mind?

MR. JENNINGS: Right.

(R. 174).

MR. COX: No. 2, Mr. Jennings

THE COURT: anymore challenges for cause?

MR. COX: ...Okay. 25, Mr. Silas; ...

(R. 217).

THE COURT: Okay Barbara, what do you want to

say?

MS. PITTMAN: I think I rehabilitated him. He

said he can keep an open mind while listening.

(R. 218).

21

THE COURT: Okay. I have him down as a cause. I'm

going to go ahead and excuse him for cause...

(R. 219)

MR. COX: Okay. Mr. Silas, is that to say if a

person were convicted of murder in the firstdegree,

that under no circumstances could you

impose the death penalty?

MR. SILAS: I'll say "Yes."

(R. 132).

MS. PITTMAN: Okay. Now, you also have very

strong opinions about the death penalty. I

didn't know whether you were able to say one way

or the other, if you were a juror and it gets to

the second phase, whether you can keep an open

mind and listen to the evidence presented during

the second phase before you will make up your

mind?

MR. SILAS: I can do that.

MS. PITTMAN: You can?

MR. SILAS: Yes.

(R. 193).

THE COURT: I'm going to excuse him for cause...

(R. 221).

Clearly these two jurors were indicating that they would keep open

minds and thus follow the law and were able to serve on the panel.

Defense counsel failed to object to either one being removed for cause.

This certainly was ineffectiveness and prejudiced Mr. Finney by

allowing exclusion from the jury panel jurors who didn't believe in the

death penalty, which may well have changed the outcome of the

recommendation for death.

22

During Mr. Finney's capital penalty phase proceedings, substantial

mitigating evidence -- both statutory and non statutory – went

undiscovered. None of this information was presented for the

consideration of the judge and jury, both of whom are sentencers in

Florida. Mr. Finney pleads both Brady and ineffective assistance of

counsel relating to the penalty phase. Either defense counsel failed

to discover, or the State failed to disclose, information which would

have led to mitigating factors. The resulting death sentence was

unreliable. In this case, the defendant was portrayed as a vicious

rapist and murderer. Counsel failed to conduct adequate background

investigation which would have turned up numerous background and

character witnesses. For example, Anastasia Jones, a female fellow

employee at the Huddle House, worked with and knew, for many years,

both the appellant and his common-law wife, Tammy. Jo Ann Nelson and

Otis Williams, who also both worked closely with the defendant at the

University of South Florida, were available at the time of trial, and

could have provided the jury and the court with a different view of the

defendant as a person. There are many other witnesses who could have

23

been called if counsel had investigated properly. They were in the

nature of family relatives: Katherine Richardson; Rev. Billy Stubbs;

Jamie Wesley; Lynn Wesley; and Joyce Wesley.

Mr. Finney was sentenced to death by a judge and jury who knew

very little about him. The evidence set forth demonstrates that an

unreliable death sentence was the resulting prejudice.

At the penalty phase, counsel provided only scant information

about Mr. Finney to the judge and jury in contrast to the vast amount

of revealing information that was available for mitigation as stated in

the 3.850 motion.

Had information been provided to a competent mental health expert

at or prior to trial, and had that expert adequately performed the

necessary tests, Mr. Finney could have presented evidence to the jury

that he was suffering from extreme emotional or mental disturbance at

the time of the offense. These are two of the weightiest mitigating

factors under Florida law.

The trial court, in its written order, which was filed a

year and a half after the Huff Hearing is egregiously in error

in its denial of this claim. The court claims that defense

counsel admits that some of the mitigation evidence is

cumulative. This is actually what Mr. Jack Crooks,

postconviction counsel, actually said:

"Your Honor, the next point would basically

go again, to primarily ineffective

24

assistance of counsel lack of presentation

of mitigation evidence and I can say to the

court candidly that some of it may have been

somewhat cumulative to other witnesses who

testified but there were at least a half a

dozen other witnesses who could have

testified in the mitigation phase or in

mitigation that might have made a difference

again. I can’t state that as an absolute ."

(PC-R. 294).

Postconviction counsel Crooks stated that the testimony

might have been cumulative not that it was. Notwithstanding the

discrepancy, the court’s very premise that mitigation evidence

is even capable of being cumulative is specious. Cumulative

evidence is additional evidence of the same character as

existing evidence which does not need further support.

Additional evidence of mitigation would have been helpful in

that it would have served to enhance and strengthen the

underlying proposition. Cumulative evidence would generally seem

to be less necessary when attempting to establish a fact more

objectively ascertainable , i.e. time of cause of death. In the

area of consideration for mitigation of the penalty of death, an

area of subjective truth, additional evidence would be useful to

establish the extent and depth of the matter sought to be

proven.

The order is equally flawed in its insistence upon the

provision of specific examples. Firstly the postconviction

25

motion does identify the aforementioned witnesses. Secondly,

under Fla.R.Crim. P. 3.850, there is no such requirement, as

suggested by the trial court, of appellant to have provided an

affidavit of Dr. Gamache averring that any other mitigation

evidence at trial would have changed his testimony.

Trial counsel did not provide Mr. Finney's mental health experts

with adequate background information, although available at the time,

including his school records, work records, statements from fellow

employees, neighbors, friends, and relatives to enable them to make a

meaningful evaluation of Mr. Finney at the time of the offense or

develop mitigation. This failure constitutes ineffective assistance

and greatly prejudiced Mr. Finney's defense during all phases of his

trial.

A criminal defendant is entitled to meaningful expert psychiatric

assistance when the State makes his mental state relevant to guiltinnocence

or sentencing. Ake v. Oklahoma, 470 U.S. 68 (1985). What is

required is an "adequate psychiatric evaluation of [the defendant's]

state of mind." Blake v. Kemp, 758 F.2d 523, 529 (11th Cir. 1985).

Counsel has a duty to conduct proper investigation into his client's

26

mental health background. This is done to assure that the client is not

denied a professional and professionally conducted mental health

evaluation.

Defense counsel's disregard of utilizing any character witnesses

showed extreme ineffectiveness on the part of counsel.

Dr. Michael Gamache, who evaluated Mr. Finney, performed two

clinical visits and talked with his common-law wife, Tammy Gilmore.

Dr. Gamache relied upon self-reporting by the defendant to base his

evaluation. It was imperative for counsel to have provided the medical

expert with information other than self-reporting. The Doctor was not

provided with family members for the evaluation including Mr. Finney's

sister, Katherine Richardson, cousins, Rev. Billy Stubbs, Jamie Wesley,

Lynn Wesley, and Joyce Wesley, nor were these witnesses called for

mitigation purposes by the defense counsel, although available at the

time of trial. Thus, the doctor's evaluation was not complete.

Florida law is clear that insanity and mental health mitigation

are assessed under distinctly different standards. Even though sane,

a defendant may be legally answerable for his actions, and even though

he may be capable of assisting his counsel at trial, he may still

deserve some mitigation of sentence because of his mental state.

As stated above, evidence of mental health and mitigation was not

presented to Mr. Finney's jury. Under the basic tenets of death

penalty jurisprudence, ignorance of mental health issues, mitigation,

27

and the capricious results it engenders, is unconstitutional.

In addition, mental health experts could have rebutted the

defendant's mental state at the time of the offense, as well as the

weight of the aggravating circumstances which were presented by the

prosecution.

The order is flawed in its denial of this Ake claim.

Firstly the postconviction motion does identify the

aforementioned witnesses. Secondly, under Fla. R. Crim. P.

3.850, there is no such requirement, as suggested by the trial

court, of appellant to have provided an affidavit of Dr.

Gamache, averring that any other mitigation evidence at trial

would have changed his testimony.

Defense counsel failed to hire a crime scene expert and an expert

in sexual killing/bondage which would have shown that the victim

engaged in some form of sexual activity by virtue of the fact that a

tampon was found near the bed and the lack of defensive wounds. This

failure constitutes ineffectiveness on the part of counsel and was

highly prejudicial to the defendant because it would have provided

reasonable doubt and provided another hypothisis of innocence.

Failure to accomplish the foregoing evidentiary matters cannot be

28

said to be a tactic or strategy, since the failure to do any one may

have been the one thing that resulted in Mr. Finney being acquitted or

the charges dismissed; It was ineffectiveness on the part of counsel

and extremely prejudicial to the outcome of the case.

The State had the burden of proving this case to the exclusion of

every reasonable hypothesis of innocence. Defense counsel's

ineffectiveness coupled with the State's failure to ensure that every

lead and evidentiary matter was pursued, caused undue prejudice to the

defendant in being able to show there was more than one reasonable

hypothesis of innocence.

Under Section 27.711(12) Florida Statutes, the trial court

bears a duty to oversee and reasonably assure some degree of

proficiency in the performance of postconviction counsel. The

pertinent parts of that statutes provide as follows

29

"The court shall monitor the performance of

assigned counsel to ensure that the capital

defendant is receiving quality

representation. The Courts shall also

receive and evaluate allegations that are

made regarding the performance of assigned

counsel. The Comptroller, the Department of

Legal Affairs, the executive director, or

any other interested person may advise the

court of any circumstance that could affect

the quality of representation, including,

but not limited to, false or fraudulent

billing, misconduct, failure to meet

continuing."

Appellant filed, pro se, a seven-page motion before the

circuit court complaining of his postconviction attorney, Jack

Crooks, on November 12, 1999, (PC-R. 199-206). The trial court

never conducted an appropriate Nelson Hearing on this motion.

In this motion, appellant mentioned the difficulty he was having

in maintaining communication with his attorney. Appellant was

critical of the motion which had been filed on his behalf,

labeling it a "boilerplate motion that had apparently been filed

in other cases" of his counsel. Appellant also noted that in

some of the pleadings which his counsel filed on his behalf, the

names of other of his clients had appeared.

Although it is clear that in Florida, no cause of action or

cognizable relief, per se, has been recognized for ineffective

assistance of postconviction counsel, several decisions and

orders of this Court make clear that certain facts can warrant

30

a remand back to the circuit court so that justice may be done

in certain circumstances. In Peede v. State, 748 So. 2d 253

(Fla. 1999), this Court remanded a case back for a new 3.850 to

be filed because of concerns it had with the quality of

postconviction counsel. Regarding the brief filed in that case,

this Court wrote:

"While we are cognizant that quantity does

not reflect quality, the majority of issues

raised were conclusary in nature and made it

very difficult and burdensome to conduct a

meaningful review...We remind counsel of the

ethical obligations to provide competent

representation, especially in death penalty

cases, and we urge the trial court, upon

remand, to be certain that Peede receives

effective representation" Id. at 256

Furthermore, this Court in an order dated August 25,1999,

in the case of Fotopolous v. State, Case No 91,277, was faced

with a brief that had raised several grounds not raised in the

original 3,850. In an attempt to properly administer justice,

this Court remanded the case back to the trial court so that

these claims could be properly asserted and heard and so that

the interests of justice would be honored.

The Supreme Court has implicitly recognized that omissions

by postconviction counsel can result in certain remedies

available to the appellant. See Williams v. State, 2000 WL

1726782 (Fla. 2000), Steele v. Kehoe, 747 So. 2d 931 (Fla.

31

1999).

More importantly it was reversible error for the trial court

to have effectively ignored appellant’s aforementioned motion.

The trial court’s discretion was abused by failing to provide

the appellant with the opportunity to explain why he objected to

In this motion, appellant cited the incompetence of his

attorney as one of the grounds for his motion. This was the

identical scenario in Kearse v. State, 605 So. 2d 534 (Fla. 2d

DCA 1992) where the Court wrote:

In the instant case, appellant requested

that his court-appointed attorney be

dismissed, and, in so doing, asserted

incompetency as one of the grounds for

relief in his motion. Although a Nelson

inquiry was not required as to the conflict

of interests and bias claims. Such an

inquiry was required as to appellant’s

claims of ineffectiveness. While the trial

court did provide appellant with an

opportunity to explain his reason and

complaints set out in his motion, it did not

question defense counsel as to those

complaints. Additionally, the trial court

failed to question counsel concerning the

issue of competency raised orally during the

hearing when appellant asserted that counsel

had nor asked for a bill of particulars

before she took depositions. Finally, the

court failed to make rulings as to the

sufficiency of any of the ineffectiveness

claims. Thus, because the record does not

clearly show that the trial court followed

Nelson, we hold that the court abused its

discretion as to appellant’s motion to

discharge his attorney and reverse

32

Kearse, 605 So. 2d at 536-7.

Mr. Finney was even more disadvantaged than the

appellant in Kearse, he never even had the opportunity to

address the court of his concerns.

The amended motion for postconviction relief ran a mere

29 pages in length, stocked with ten various claims, over half

of which were standard prayers for relief not tailored to the

unique facts of appellant’s case. Furthermore those claims which

do contain merit and which appear in the earlier portion of this

brief are deficiently pleaded and might well prejudice appellant

if this Court finds that based on the meagerness of his

postconviction attorney’s motion, dismissal was appropriate.

Postconviction counsel failed to discover and argue this

claim in such a manner. In the interests of justice, remand of

the motion on this issue is warranted for an evidentiary hearing

and further consideration by the trial court.

Mr. Crooks mentions only one aspect of this error. If the

trial court had been advised of the following attachments, it

33

well could have considered the extent of these comments and have

granted an evidentiary hearing on a broader aspect of this

claim.

MS. O’CONNELL: Is the decision for the State

to seek the death penalty discretionary on

the State, or is there – are there legal

requirements that must be met in order for

you to seek that penalty?

MR. COX: Let me answer that this way,

because I can’t speak with you about

anything except the law as it would apply in

this case. What I can tell you is this: In

the State of Florida, just as Her Honor will

tell you, we recognize the fact that not

every first-degree murder is a death penalty

case. But the Legislature basically in law

has said, if there are certain factors or

certain facts that exist, either in the

murder or with that particular person

convicted of murder, okay, certain factors

or certain attributes that exist, then the

State may proceed and ask for a death

penalty recommendation and ask for the death

penalty. Okay?

So, basically what has happened is the

Legislature has said there are certain –

they have a certain list. And they say if

these things exist, one of them, if

something exists, then the State may proceed

and ask for the death penalty. Does that

answer your question?

MS. O’CONNELL: Yes.

(R. 113).

Later in the voir dire this issue resurfaces and the

assistant state attorney reiterates his original position

reinforcing this misconception of the law in the minds of the

34

jurors.

MR. THOMAS: You mentioned earlier that the

Legislature says specific things you can go

on for the death penalty, maybe one or more

items that you can go on. That is leaving

the decision up to your office, isn’t it, as

to really whether we go to the death penalty

or not. Why do you say in one case, "I

won’t go for the death penalty even though

some of these things are there, and anther

one not?" I am still a little confused

about that.

MR. COX: I understand, and believe me, I’m

not trying to avoid your question or avoid

answering your question at all. Okay? I’m

not trying to do that. All I can discuss

with you right now is what the law is and

what the law says. And the law says that if

certain aggravating factors, one or more, –

I mean, you just need one – but if certain

aggravating factors exist, then the people

of the State of Florida can come before the

jury and say, "Look, because of this

aggravating factor, we ask that you impose

the death penalty and make that

recommendation." I mean, the decision – I

mean, you know, I guess the decision – But,

you know, as to whether or not to impose the

death penalty, you have to go through this

second hearing, the second phase.

I wish I could explain. I’m not trying to

avoid your question. I would like to answer

all your questions, but we’re limited as to

how much we can speak now as to the facts of

the case and things of that sort. Okay?

So, I hope you can bear with me on that. I

hope you can understand that because as the

trial progresses, if that becomes

applicable, yea, as that part comes in, you

know, you’ll hear more about it. And you

may understand more and answer more of your

questions.

35

(R. 152-154).

The focus of the juror’s question was to discover whether

it was within the discretion of the office of state attorney in

deciding to seek the death penalty. It is equally clear that in

both of its responses to this question the assistant state

attorney sought to evade giving the obvious categorical answer,

which was yes, and sought rather to convey the impression that

the legislature more or less dictated those circumstances under

which the death penalty may be sought.

A very possible effect this error had was to leave the jury

with the impression that there existed a rigid formula

established by law as to when the death penalty is sought.

Therefore the jury could have been misguided into thinking that

the evidence was of such a nature as to fit into a legislative

definition of circumstances which warrant the imposition of

death. The jury accordingly was not inclined to look critically

or skeptically at the office of state attorney. Rather it was

undoubtedly prejudiced against the appellant believing that the

facts of the crime was of a nature contemplated by law to

warrant the imposition of death.

Postconviction counsel failed to discover and argue this

claim in such a manner. In the interests of justice, remand of

the motion on this issue is warranted for an evidentiary hearing

36

and further consideration by the trial court.

Again, Mr. Crooks includes in his motion only a small

portion of the many and pervasive instances of the prosecutor’s

ongoing comments to the jury as to the "additional evidence"

they will receive in the second phase of the trial where the

only consideration will be whether or not to impose the death

penalty. The jury was told that this is evidence they will

receive from the side that will be seeking execution. The

prejudice is self-evident. It is important to note that the

comments excluded by postconviction counsel are those made by

many of the panel members themselves, which illustrate more

effectively the prejudice which the prosecutor’s remarks caused.

MR. COX: Okay. The same question to you.

If you Her Honor, Judge Sexton, tell you

that you must consider any additional

evidence or testimony later on in the second

phase before you commit yourself to a

decision, could you do that, though?

ME. BARLOTTA: Well, I’m sure I understand

that because in my view if a person is not –

I don’t know. I don’t know what those

criteria are that your telling us.

MR. COX: And you will learn later I’m not

permitted to go over all of them now with

you, and you will be instructed later.

(R. 114).

37

MR. COX: Okay. The same question to you,

then: If Mr. Finney or anybody else were

convicted of murder in the first degree, are

you saying basically under no circumstances

could you impose the death penalty? Or do

you think you would like to hear additional

evidence and find out more about it before

you decide.

(R. 119).

MR. ROGERS: I believe in capital punishment,

but I also believe that I can keep an open

mind and hear all the evidence before I make

up my decision.

MR. COX: Okay. So, you wouldn’t go either

way until hear all of the evidence?

(R. 124).

MR. BLATT: I have a little problem with the

second half. If you have proven to me that

this man is guilty beyond the shadow of a

doubt –

MR. COX: Beyond a reasonable doubt.

ME. BLATT: Right.

MR. COX: Okay.

ME. BLATT: I can’t envision any more

evidence that could change my mind or our

minds to not giving the capital punishment.

I mean, if all the evidence is given in the

beginning and the gentleman is – we

determine that he is guilty

MR. COX: Guilty of Murder.

ME. BLATT: Right, without any – then

ME. COX:Let me just explain it to you this

way: Let me be careful with the words I use.

In the first part of the trial, in the first

stage of the trial you’re only going to be

deciding his guilt or innocence.

38

ME. BLATT: I understand.

MR. COX: Okay. And you’re going to be

hearing about facts of the case and

everything like that.

ME. BLATT: Right.

MR. COX: Okay. But there will be – all I

can tell you is there will be a second phase

of the trial where you will more than likely

hear mor evidence and testimony, okay? And

–

(R. 125-126).

MR. COX: You Mentioned earlier as well that

if the evidence went on in the second part

as well – let me ask you this –

and, you know, this probably will not be the

case here if we get to that point. But if

the State were to go into the second phase

and not present any evidence, okay, and

we’re relying on the facts of this murder,

which the Legislature says we can do, – if

certain facts appear, we can still argue for

the death penalty to you – if the State were

to go forward with no facts – which wouldn’t

happen here – but if that were the case, do

you think you can still consider the death

penalty based upon the facts of the murder

itself?

(R. 130-131).

MR. MILLS: You didn’t hear all the evidence.

MR. COX: I’m saying, you may and you

probably will hear other evidence and

testimony. I can’t tell you anything more

about it. I wish I could. Like I explained

to you earlier, but we can’t at this point –

this isn’t the point where we’re allowed to

do anything, okay? But I know that is so

little to know. But you can keep an open

mind and go either way?

(R. 147).

39

MR. MILLS: Okay. I believe in capital

punishment, and I’ll keep an open mind. But

the evidence that you use to convict the

person, and in the second phase you use

different evidence. So, I can’t see – you

see what I’m saying?

MR. COX: I understand exactly. You’re

asking the same question he did.

(R. 146).

MS. ROLLINS: When you decide to make a

decision prosecuting someone, how do you

determine whether or not – why do you ask –

make it a confusing situation for a jury

when you ask for a penalty along with the

verdict.

MR. COX: You’re basically asking, how do we

decide whether or not to go for the death

penalty?

MS. ROLLINS: No. Why do you give us both

those situations at once that we have to

determine the areas? I mean –

MR. COX: Basically it’s not really at once.

I mean, granted, it’s going to be during the

same trial and things of that sort. But,

you see, the reason that we have broken it

up into phases, one being the guilt phase,

has absolutely nothing to do with the death

penalty, nothing at all. Okay? And then

we have a completely separate second phase

where you will decide whether or not the

death penalty is appropriate.

I don’t know if you’re asking why the same

jury makes that decision. But, you know, I

would venture to say that one reason is

because you hear the evidence of the murder

and, so you know, the reason behind the

underlying facts for murder in the first

degree. Did I answer your question, because

I don’t know if I follow you.

40

THE COURT: No, you didn’t answer her

question. The question is: Why do you bring

it up all at once? Why don’t you let them

decide the guilt and then decide the

penalty, correct?

MS. ROLLINS: Yes.

MR. COX: The law. We are bound to follow

the law, and this is the way we handle it in

the courts in Florida, and that is the way

we do it.

(R. 150-151).

As reflected in the above-provided excerpts, Cox’s

comments prompted questions and apparent confusion on the part

of any jurors. The state attorney, unwittingly or not,

compounded the impropriety of his remarks when he went on to

assure the jury he was not necessarily trying to keep anything

from them but that he was prohibited from commenting further.

Mr. Cox’s questioning clearly planted and cultivated the

clear and unmistakable impression that "other evidence" would be

presented in furtherance of or in support of the state’s

position that the death penalty should be imposed. Especially in

the above passage, it is clear that the jurors questioned why

they would not hear all the evidence on appellant’s guilt at the

same time. This cannot be considered as an unwitting

articulation on the part of the speaker as it is repeated too

often to be considered anything other than what it probably is,

41

a calculated attempt by the assistant state attorney to taint

the jury and alert them to "other" evidence.

Postconviction counsel failed to discover and argue this

claim in such a manner. In the interests of justice, remand of

the motion on this issue is warranted for an evidentiary hearing

and further consideration by the trial court.

Mr. Crook’s 3.850 motion offers a paltry one paragraph

description of a phenomenon which is pervasive throughout Mr.

Cox’s closing argument. A properly pleaded claim could and

should have appeared as the following.

In the closing argument of the penalty phase, Mr. Cox

continued on with his proclivity toward improper argument.

Firstly he implied that the defense was free to and did

present less than veracious testimony in the penalty phase

that they were totally unrestricted in what they could argue.

"Now I’m going to speak with you about the

mitigating and the aggravating factors in a

moment, because you see, as we spoke about

in voir dire, there are certain things that

if these certain circumstances exist, the

state can come to you and urge you to

sentence the defendant to death. The

Defense is limited only by their own

creativity. They can argue anything. This

was their day in court. This was Charles

Finney’s day. You didn’t hear Ms. Vogel or

myself say anything because that is the way

42

it should be. His witnesses should get up

there and tell you whatever they want to

and they did"

( R. 897).

It was ineffective assistance of counsel for appellant’s

trial counsel not to have moved for a mistrial. The comments

by Assistant State Attorney Cox were a subtle invitation to

the jury to disregard whatever was being offered by the

defense. The implication of his remarks is that while the

state is bound by the rules of law, the defense can

essentially say whatever it wants. The defense is not bound by

anything other than their own creativity. The defense is

implied to have no accountability to veracity, no duty to show

relevance. The comments were thus damaging in that they

suggested that only the state had to account for itself in the

presentation of evidence in the penalty phase.

The prosecutor continues:

"And folks we have not heard the

first thing that mitigates this murder.

Nothing can mitigate this murder. Some of

the things we heard in mitigation – and I

anticipate that Mr. Escobar may pop out

some of these to you- whether the defendant

has a good work history. He’s been

honorably discharged from the service.

Folks, there are a lot of people that work

well, there’s a lot of people who have been

honorably discharged from the service, and

they don’t go out and tie people up and

stab them thirteen times. That is not

mitigation. That is not what society

43

expects.

(R. 898).

Trial counsel should most emphatically have objected to

the characterization by the state attorney that Mr. Escobar

would "pop out" the proposed factors for mitigation. The very

term "pop out" connotes huckstering an illusory gimmick,

something unworthy of the jury’s serious consideration.

Combined with his preceding remarks that the defense can say

whatever they want, the state attorney here effectuates a

cumulative erosion on whatever credibility the defense may

have in the eyes of the jury. The state attorney continues:

"The man whose in court today who you heard

testify he other day and who you heard

these people talk about is not the same man

who on January the 16th killed Sandra

Sutherland, and he’s not the same man who

thirteen days later raped Judy baker. You

see, its s a different picture being

painted here. But let’s remember why we’re

here. Let’s remember Charles Finery’s

character is. There’s good thongs from his

friends but you can’t overlook the bad"

(R. 899).

The state attorney continues on implying that the purpose

and nature of defendant’s friends are to perpetuate lies,

which constitutes his penalty phase defense. All of this is

effectuated without any objection from trial defense counsel.

Again without any objection by appellant’s trial counsel, the

44

state attorney continually attempts to usurp the jury’s

function from them, scoldingly admonishing them that "the

evidence of the appellant is not mitigation." The state

attorney is improperly expressing his opinion here.

"There is nothing more despicable than

taking a human life for money. And what’s

the value of Sandra Sutherland’s life by

this man? Thirty dollars and the contents

of whatever came out of that wallet.

Thirty dollars to pawn that VCR and

whatever came out of that wallet. Thirty

dollars to pawn that VCR and whatever came

out that wallet and the purse was

ransacked. That is the value of Sandra

Sutherland’s life to Charles Finney. What

is disgusting and that is certainly

aggravating"

(R. 901).

The expression of the state attorney’s opinion as to the

actions of appellant as "disgusting" is met by no objection by

the defense counsel.

In referring to one of the crimes that was used as an

aggravator, an incident involving Ms. Judy Baker, the

prosecutor continues:

"And we also know as well in Judy Baker’s

case that the value for the rape of Judy

Baker was fifty-five dollars, for money that

is disgusting"

(R. 902).

Defense counsel finally interposes an objection at a point

when the full prejudice of the prosecutorial misstatements has

45

inured to the prejudice of the appellant’s case. In fact his

attorney concedes that

"I allowed it once but I can’t allow it a

second time. He is giving this jury his

personal views,which contrary to what

closing arguments aresupposed to be. As to

his own personal views about it being

disgusting, he can’t d o that. That is

improper prosecutorial closing and he knows

it.

(R. 902).

Postconviction counsel failed to discover and argue this

claim in such a manner. In the interests of justice, remand of

the motion on this issue is warranted for an evidentiary hearing

and further consideration by the trial court.

Firstly appellant would direct this Court’s attention to the

record transcript of the Huff hearing for appellant’s cause

which was heard on May 26, 1999 (PC-R. 272-288). There is a

noticeable lack of advocacy in the tenor of counsel’s remarks.

In arguing the claim that trial counsel failed to present

mitigation witnesses, counsel inexplicably tells the court of

the possibility of some of the witnesses being "cumulative,"

further evidence of the significant deficiencies in the

performance of postconviction counsel. He also limits the

strength of his own argument when he comments sheepishly that "I

appellant's exemplary work and military history; (2) his deprived

childhood, marked by poverty and abandonment by an alcoholic father;

(3) his positive character traits, such as being a hard worker and a

46

can’t state that as an absolute (PC-R. 294).

"Your Honor, the next point would basically

go again, to primarily ineffective

assistance of counsel lack of presentation

of mitigation evidence and I can say to the

court candidly that some of it may have been

somewhat cumulative to other witnesses who

testified but there were at least a half a

dozen other witnesses who could have

testified in the mitigation phase or in

mitigation that might have made a difference

again. I can’t state that as an absolute ."

(PC-R. 294).

In the trial court’s order dismissing the claims of

ineffectiveness for failure to present mitigation evidence, the

trial court relied upon the very statement of appellant’s own

lawyer when he mentioned that the evidence might be cumulative.

He does not even mention the names and testimony of the

witnesses.

An effective argument as follows could have and should have

been made.

The mitigation witnesses which were presented by the trial

attorney did have some limited impact as reflected in the

statutory mitigators found to exist by the court in its

good parent; (4) excellent potential for rehabilitation and

productive adjustment within the prison setting; and (5) continued

opportunity to maintain a loving relationship with his daughter,

through frequent visitation (R155-56, T948-50).

47

worker he met late in his (appellant’s) life, trial counsel

allowed a major void in the evidence of his background. The

court gave some but not great weight to this aspect of

appellant’s background. The jury and judge failed to receive a

comprehensive account of appellant’s background as they would

have, had the aforementioned witnesses named in the

postconviction motion testified. The trial court ruling

summarily denying this claim compounded the error by denying an

evidentiary hearing so as to review what the omitted testimony

was and as to properly assess the impact its omission had on

the integrity of the judgment and sentence of death.

Trial counsel failed to call: Anastasia Jones, a co-worker

of the appellant; Jo Ann Nelson, also a coworker; Otis Williams,

co-worker; Katherine Richardson, a sister; Louis Stubbs, a cousin;

Rev. Billy Stubbs, a relative; Jamie Wesley, a relative; Lynn Wesley,

a relative; and Joyce Wesley, a relative.

Through these witnesses trial counsel could have

strengthened the story of appellant’s upbringing, childhood and

teen years through independent sources, perhaps more persuasive

than the appellant himself. A careful review of Dr. Gamache’s

48

testimony shows that the portrait of appellant, which he offers,

falls remarkably and strikingly short of presenting the full

range of relevant facts about appellant’s background. For

example, at the age of three or four, appellant sustained a

serious fall from a rocking chair resulting in a four to five

inch scar on his head. Also as a child, appellant was anemic

which resulted in his frequent fainting and acquiring the name

"Falldown."

Throughout his elementary school years, he struggled with

a reading problem and exhibited a stubborn demeanor. As a youth

in Macon, Georgia, appellant sustained several emotional

traumas. His best friend, Willie B. Spencer, drowned when

appellant was only thirteen. Louis Stubbs, his cousin, shot

appellant, then 14, in the abdomen in his backyard. As a result

of this unfortunate accident, appellant had surgery and was

hospitalized at the age of 15. Appellant witnessed the hit and

run death of his cousin, Alvin Stunt. While in the military

appellant was assigned to Germany where he was in the Third

Brigade handling coded military messages. He later completed a

five-week training course in voice radio in Fort Dix, New

Jersey.

Most importantly for purposes of mitigation was the

omission of any evidence of the drug problem appellant developed

49

while in the service. Appellant smoked hashish and pot while in

the service and developed a usage habit of heroin as well.

Unquestionably the omission of this information in the

compilation of his mitigation evidence was paramount. Appellant

had admitted this problem to his military superiors but never

received any professional counseling. Appellant, while in the

military, entered the CCDAC rehabilitation program, an in house

treatment program for drug and alcohol dependence. Records

obtained from this agency indicated that appellant had a

condition which was impairing his judgment and reliability for

temporary periods of time. This Court has held that failure to

prepare and present evidence of chronic substance abuse can

constitute ineffective assistance of counsel. Heiney v. State,

N.E.2d 973 (Ill. 1986). In Ross v. State, this Court held that

a defendant’s past drinking problems, among other things, were

"collectively a significant mitigating factor". Ross v. State,

474 So.2d 1170, 1174 (Fla. 1985). Unrebutted evidence that the

defendant’s "reasoning abilities were substantially impaired by

his addiction to hard drugs" is "significantly compelling"

mitigation. Songer v. State, 544 So.2d 1010, 1011 (Fla. 1989).

Although trial counsel presented some evidence in

mitigation, Mr. Finney’s girlfriend, Tammy Gilmore, his co-

50

worker, Joe Williams, and Dr. Gamache, such a body of mitigation

evidence could hardly be considered exhaustive. Compare Jackson

v. Herring, 42 F.3d 1350, 1367 (11th Cir.1995) (trial counsel,

who had a "small amount of information regarding possible

mitigating circumstances regarding [petitioner's] history, but

... inexplicably failed to follow up with further interviews and

investigation" rendered constitutionally deficient performance);

Blanco v. Singletary, 943 F.2d at 1500-01 (11th Cir.1991)

(deficient performance where counsel left messages with

relatives mentioned by defendant but neglected to contact them);

Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir.1988)

(deficient performance where counsel learned of mitigating

personal history evidence from defendant but failed to

investigate).

The testimony of Tammy Gilmore (R-840-869) was essentially

a narrative account of her relationship with appellant. She had

met the appellant in 1986, and their relationship evolved into

a serious and close relationship. Ms. Gilmore further

established appellant’s stable and exemplary employment history.

He also, in the course of their relationship, was both ambitious

and diligent as evidenced by his obtaining a second job at night

with Greyhound Bus. Appellant did this she said, so that he

could faithfully discharge child support obligations, which he

51

fulfilled voluntarily. During Miss Gilmore’s relationship with

appellant, he was a tremendous source of emotional as well as

financial support (R. 842). On April 21, 1988, a child, Shannon

was born to the couple. Appellant proved to be an extremely

positive role model for the daughter.

The trial counsel called one other additional lay witness

in mitigation , Joseph C. Williams (R. 860). He had met the

appellant in Tampa, established a quick and warm relationship

with and eventually helped him find employment at University

Community Hospital. Mr. Williams testified that the appellant

was a warm, caring and generous man. He left appellant alone

with his 80-year old mother with never any cause for concern

(R.866). Williams was surprised to learn of appellant’s arrest

for this crime because he had always observed him to be polite

and circumspect in the presence of his mother (R. 866-67).

As can be gleaned by a review of this evidence, the

to the body of evidence which was adduced. The trial court

order denied this claim and cited the cumulative nature of such

excluded witnesses as the reason. It was resoundingly wrong in

such a holding; the case should be remanded for an evidentiary

hearing on this claim.

Postconviction counsel failed to discover and argue this

52

claim in such a manner. In the interests of justice, remand of

the motion on this issue is warranted for an evidentiary hearing

and further consideration by the trial court.

Mr. Crooks pleaded this claim no better than the

straight mitigation claim because he failed to mention in his 29

page 3.850 motion what the proffered testimony was. A better

and more completed claim should and could have been provided. It

would have read as follows.

In a capital case, the test for determining whether

counsel’s deficient performance prejudiced the defendant is

whether there is a reasonable probability that, absent the

errors, the sentencer would have concluded that the balance of

aggravating and mitigating circumstances did not warrant death.

Strickland, 466 U.S. at 695. A reasonable probability is one

which undermines confidence in the outcome of the sentencing.

Strickland, 466 U.S. at 694.

In the landmark legal case of Ake v. Oklahoma,470 U.S. 68

(1985), the United States Supreme Court entertained the question

or whether the Constitution requires that an indigent defendant

have access to the psychiatric examination and assistance

53

necessary to prepare an effective defense based on his mental

condition, when his sanity at the time of the offense is

seriously in question. Although admittedly the facts of this

case, as framed in both the direct appeal and the postconviction

motion, do not necessarily raise the specter of an insanity

defense, wherein, as in the case at bar, the state has made the

defendant’s mental condition relevant to the degree of

culpability and to the ensuing punishment, the role which a

psychiatrist or mental health expert plays is unquestionably

significant. By laying out the investigative and analytic

process to the jury, the psychiatrists for each party enable the

jury and judge, to make its most accurate determination of the

truth on the issue before them.

In the case at bar, trial counsel failed to provide Mr.

Finney’s mental health experts with available, adequate

background information, including his school records, work

records, statements from fellow employees, neighbors friends and

relatives to enable them to make a meaningful evaluation of Mr.

Finney at the time of the offense or develop mitigation.

Dr. Michael Gamache, who evaluated Mr. Finney, was called

by trial counsel as an expert witness in chief during the

penalty phase of the trial (R.869). Dr. Gamache is a forensic

psychologist. Dr. Gamache testified that he conducted two

54

clinical examinations of Mr. Finney totaling approximately five

and a half hours. This examination included a clinical

interview, a mental status examination, a psych-social history

consistency testing and psychological testing.

Dr. Gamache offered testimony breaking down appellant’s life

into four phase comments upon challenges and difficulties which

attended each phase and how they evolved over time. A

significant weakness in Dr. Gamache’s testimony was the limited

base of information. Essentially Dr. Gamache relied upon only

that which was related to him by the defendant. It was

imperative and ineffective for counsel to have provided the

medical expert with information other than self reporting. It is

not established by trial counsel that Dr. Gamache consulted any

other independent data, be they reports by other doctors,

documented family histories or other psychological tests in his

examination and testimony. The appellant was the sole source of

Dr. Gamache’s testimony. The doctor was not provided with

family members for the evaluation, including Mr. Finney’s sister

Katherine Richardson, cousins, Rev. Billy Stubbs, Jamie Wesley,

Lynn Wesley and Jocye Wesley.

Dr. Gamache’s testimony is actually quite superficial.

There is a wealth of highly pertinent data an appellant’s

background which having never been known or considered by the

55

Doctor, render his evaluation incomplete.

Although its holding appears to pertain to cases where the

defendant’s sanity is in question, Ake clearly stands for the

proposition that in circumstances where psychiatric assistance

would be of probable value, the defendant should not be denied

access to such aid. Appellant, because of the ineffectiveness

of his trial counsel in not properly furnishing Dr. Gamache all

relevant data, was effectively denied access to significant

psychiatric assistance which was warranted.

Further, where permitted by evidentiary rules,

psychiatrists can translate a medical diagnosis into language

that will assist the trier of fact, and therefore offer evidence

in a form that has meaning for the task at hand. Through this

process of investigation, interpretation, and testimony,

psychiatrists ideally assist lay jurors, who generally have no

training in psychiatric matters, to make a sensible and educated

determination about the mental condition of appellant at the

time of the offense.

By organizing defendant’s mental history, examination

results and behavior, and other information, interpreting it in

light of their expertise, and then laying out their

investigative and analytic process to the jury, the

psychiatrists for each party enable the jury to make its most

56

accurate determination of the truth on the issue before them.

See Hildwin v. Dugger, 654 So.2d 107 (Fla.1995)(Counsel’s

failure to investigate and present mitigation evidence which

would have supported two statutory mitigators was ineffective

assistance of counsel); Eutzy v. Dugger, 746 F.Supp. 1492 (N.D.

Fla. 1989)(Trial counsel was ineffective for failing to prepare

and present mitigation even when client said he did not want his

mother involved.).

This claim alleged specific facts which were not

conclusively rebutted by the record and which demonstrate a

deficiency in performance which prejudiced appellant and he was

entitled to an evidentiary hearing. Gaskin v. State, 737 So.2d

509, 516 (Fla. 1999). Because "counsel has a duty to make

reasonable investigation or to make a reasonable decision that

makes particular investigations unnecessary," counsel’s failure

to investigate appellant’s background and family cannot be

considered strategy. Under Strickland, such a strategic choice

must be made after the relevant investigation. Strickland, 466

U.S. 691. Counsel’s deficient performance to research

appellant’s background and uncover other sources to support what

little information they had prejudiced appellant because the

experts hired to help him and the jury and judge who sentenced

him to death never heard the horror and abuse he had endured his

57

entire life. This was not a case in which counsel made a

reasoned decision not to present the circumstances for tactical

or strategic reasons. The circumstances were not presented to

the experts and jury simply because counsel never took the time

to develop them.

Postconviction counsel failed to discover and argue this

claim in such a manner. In the interests of justice, remand of

the motion on this issue is warranted for an evidentiary hearing

and further consideration by the trial court.

On May 17, 2000, at the hearing for his motion for

rehearing, postconviction counsel was regrettably meek and

nonchalant. Here is the essence of his remarks in argument:

"So I filed a motion for rehearing Judge,

and I provided a copy of that asking the

court the Court to reconsider granting us an

evidentiary hearing on all claims. That

seems to be the Supreme Court’s desire where

they are trying to go at this point. I will

leave the motion stand on its own."

Postconviction counsel then filed a Notice of Appeal which

purported to appeal a May 17, 2000, order summarily denying

postconviction relief. The Notice actually appealed a written

order of that date which denied a motion for rehearing of such

58

a denial. Up until October 31, 2000, there had never been an

actual written order of denial of appellant’s postconviction

motion. On that date, the trial court filed an Order of Denial

and entered it nunc pro tunc to the date of the evidentiary

hearing, May 26, 1999.

Postconviction counsel failed to better argue the motion for

rehearing. In the interests of justice, remand of the motion on

this issue is warranted for an evidentiary hearing and further

consideration by the trial court.

As a result of the ineffectiveness of appellant’s previous

postconviction counsel, his many meritorious claims are

minimally and negligently pleaded. This omission may well have

harmed his prospect for an evidentiary hearing. It is in the

interests of justice that this matter be remanded to the trial

court for its consideration of these claims in the manner in

which they should have been and could have been pleaded. See

Williams v. State, 2000 WL 1726782 (FLA 2000); Peede v. State,

748 So. 2d 253 (Florida 1999); Steele v. Kehoe, 747 SO. 2D 931

(FLA. 1999).

59

Florida's capital sentencing scheme denies Mr. Finney

his right to due process of law, and constitutes cruel and unusual

punishment on its face and as applied. Florida's death penalty statute

is constitutional only to the extent that it prevents arbitrary

imposition of the death penalty and narrows application of the penalty

to the worst offenders. See Profitt v. Florida, 428 U.S. 242 (1976).

Florida's death penalty statute, however, fails to meet

these constitutional guarantees, and therefore violates the Eighth

Amendment to the United States Constitution. Richmond v. Lewis, 113

S.Ct. 528 (1992).

Execution by both electrocution and lethal injection impose

unnecessary physical and psychological torture without commensurate

justification, and therefore constitutes cruel and unusual punishment

in violation of the Eighth Amendment to the United States Constitution.

See Claim XII.

Florida's death penalty statute fails to provide any standard of

proof for determining that aggravating circumstances "outweigh" the

mitigating factors, Mullaney v. Wilbur, 421 U.S. 684 (1975), and does

not define "sufficient aggravating circumstances."

Further, the statute does not sufficiently define for the judge's

60

consideration each of the aggravating circumstances listed in the

statute. See Godfrey v. Georgia, 446 U.S. 420 (1980). This leads to

the arbitrary and capricious imposition of the death penalty, as in Ms.

Wuornos's case, and thus violates the Eighth Amendment.

Florida's capital sentencing procedure does not utilize the

independent re-weighing of aggravating and mitigating circumstances

envisioned in Profitt v. Florida, 428 U.S. 242 (1976). Profitt is

particularly offended when, as in this case, the judge finds, a

statutory aggravator (CCP) which both includes the element of

premeditation and is struck on direct appeal.

The aggravating circumstances in the Florida capital sentencing

statute have been applied in a vague and inconsistent manner. See

Godfrey v. Georgia; Espinosa v. Florida, 112 S. Ct. 2926 (1992).

Florida law creates a presumption of death where but a single

aggravating circumstance applies. This creates a presumption of death

in every felony murder case, and in almost every premeditated murder

case. Once one of these aggravating factors is present, Florida law

provides that death is presumed to be the appropriate punishment, and

can only be overcome by mitigating evidence so strong as t