i

PAGE NO.:

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

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . 8

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . 9

ISSUE I . . . . . . . . . . . . . . . . . . . . . . . 9

WHETHER THE TRIAL COURT ERRED IN SUMMARILY

DENYING FINNEY’S CLAIMS AND RENDERING A

FACIALLY INSUFFICIENT ORDER.

ISSUE II . . . . . . . . . . . . . . . . . . . . . . 15

WHETHER THE TRIAL COURT ERRED IN SUMMARILY

DENYING FINNEY’S CLAIM OF INEFFECTIVE

ASSISTANCE OF TRIAL COUNSEL FOR FAILING TO

OBJECT TO PROSECUTORIAL COMMENTS AND

ARGUMENTS.

ISSUE III . . . . . . . . . . . . . . . . . . . . . . 24

WHETHER THE TRIAL COURT ERRED IN SUMMARILY

DENYING FINNEY’S CLAIM OF INEFFECTIVE

ASSISTANCE OF TRIAL COUNSEL FOR FAILING TO

ADEQUATELY QUESTION POTENTIAL JURORS ABOUT

THEIR VIEWS ON RACE.

ISSUE IV . . . . . . . . . . . . . . . . . . . . . . 27

WHETHER THE TRIAL COURT ERRED IN SUMMARILY

DENYING FINNEY’S CLAIM OF INEFFECTIVE

ASSISTANCE OF TRIAL COUNSEL FOR FAILING TO

ADEQUATELY CHALLENGE THE PROSECUTOR’S

EXCLUSION OF JURORS OPPOSED TO THE DEATH

PENALTY.

ISSUE V . . . . . . . . . . . . . . . . . . . . . . . 30

WHETHER THE TRIAL COURT ERRED IN SUMMARILY

DENYING FINNEY’S CLAIM OF INEFFECTIVE

ASSISTANCE OF TRIAL COUNSEL FOR FAILING TO

PRESENT MITIGATION WITNESSES.

ii

ISSUE VI . . . . . . . . . . . . . . . . . . . . . . 38

WHETHER THE TRIAL COURT ERRED IN SUMMARILY

DENYING FINNEY’S CLAIM OF INEFFECTIVE

ASSISTANCE OF TRIAL COUNSEL FOR FAILING TO

PROVIDE THE DEFENSE MENTAL HEALTH EXPERT

WITH ADEQUATE BACKGROUND INFORMATION.

ISSUE VII . . . . . . . . . . . . . . . . . . . . . . 41

WHETHER THE TRIAL COURT ERRED IN SUMMARILY

DENYING FINNEY’S CLAIM OF INEFFECTIVE

ASSISTANCE OF TRIAL COUNSEL FOR FAILING TO

RETAIN A CRIME SCENE EXPERT.

ISSUE VIII . . . . . . . . . . . . . . . . . . . . . 43

WHETHER THE TRIAL COURT ERRED IN FAILING TO

ENSURE THE RENDITION OF EFFECTIVE ASSISTANCE

OF POSTCONVICTION COUNSEL.

ISSUE IX . . . . . . . . . . . . . . . . . . . . . . . 52

WHETHER FLORIDA’S CAPITAL SENTENCING STATUTE

IS UNCONSTITUTIONAL.

ISSUE X . . . . . . . . . . . . . . . . . . . . . . . 53

WHETHER FINNEY’S TRIAL WAS FRAUGHT WITH

PROCEDURAL AND SUBSTANTIVE ERRORS WHICH,

WHEN VIEWED CUMULATIVELY, COMPEL RELIEF.

ISSUE XI . . . . . . . . . . . . . . . . . . . . . . 54

WHETHER FINNEY IS INNOCENT OF THE DEATH

PENALTY AND SENTENCED TO DEATH IN VIOLATION

OF THE UNITED STATES CONSTITUTION.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 55

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . 55

CERTIFICATE OF TYPE SIZE AND STYLE . . . . . . . . . . . . 55

iii

PAGE NO.:

Arbelaez v. State,

25 Fla. L. Weekly S586 (Fla. July 13, 2000) . . . . . . . . 21

Bryan v. State,

753 So. 2d 1244 (Fla.),

cert. denied, 120 S.Ct. 1236 (2000) . . . . . . . . . . . . 52

Buenoano v. Dugger,

559 So. 2d 1116 (Fla. 1990) . . . . . . . . . . . . . . . . 35

Castro v. State,

644 So. 2d 987 (Fla. 1994) . . . . . . . . . . . . . . . . 29

Cherry v. State,

659 So. 2d 1069 (Fla. 1995) . . . . . . . . . . . . . . . . 13

Correll v. State,

558 So. 2d 422 (Fla. 1990) . . . . . . . . . . . . . . . . 39

Diaz v. Dugger,

719 So. 2d 865 (Fla. 1998),

cert. denied, 526 U.S. 1100 (1999) . . . . . . . . . . 9, 11

Downs v. State,

740 So. 2d 506 (Fla. 1999) . . . . . . . . . . . . . . . . 53

Doyle v. State,

526 So. 2d 909 (Fla. 1988) . . . . . . . . . . . . . . 53, 54

Engle v. Dugger,

576 So. 2d 696 (Fla. 1991) . . . . . . . . . . . . . . . . 39

Fernandez v. State,

730 So. 2d 277 (Fla. 1999) . . . . . . . . . . . . . . . . 29

Finney v. Florida,

516 U.S. 1096 (1996) . . . . . . . . . . . . . . . . . . . 5

Finney v. State,

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

cert. denied, 516 U.S. 1096 (1996) . . . . . . 1, 21, 22, 54

Foster v. Dugger,

823 F.2d 402 (11th Cir. 1987) . . . . . . . . . . . . . . . 35

iv

Fotopolous v. State,

Case No. 91,277 . . . . . . . . . . . . . . . . . . . . . . 43

Freeman v. State,

761 So. 2d 1055 (Fla. 2000) . . . . . . 14, 15, 24, 27, 30, 38

Hall v. State,

742 So. 2d 225 (Fla. 1999) . . . . . . . . . . . . . . . . 52

Hill v. Dugger,

556 So. 2d 1385 (Fla. 1990),

cert. denied, 116 S. Ct. 196 (1995) . . . . . . . . . . . . 39

Howell v. State,

707 So. 2d 674 (Fla. 1998) . . . . . . . . . . . . . . . . 45

Jackson v. Dugger,

633 So. 2d 1051 (Fla. 1993) . . . . . . . . . . . . 13, 31, 40

Kearse v. State,

770 So. 2d 1119 (Fla. 2000) . . . . . . . . . . . . . . . . 28

Keeney v. Tamayo-Reyes,

504 U.S. 1 (1992) . . . . . . . . . . . . . . . . . . . . . 47

Kennedy v. State,

547 So. 2d 912 (Fla. 1989) . . . . . . . . . . . . . . 13, 31

Kimbrough v. State,

700 So. 2d 634 (Fla. 1997) . . . . . . . . . . . . . . 28, 29

Lambrix v. State,

698 So. 2d 247 (Fla. 1996),

cert. denied, 522 U.S. 1122 (1998) . . . . . . . . . . 46, 47

LeCroy v. Dugger,

727 So. 2d 236 (Fla. 1998) . . . . . . 13, 22, 31, 40, 42, 52

Lowe v. State,

650 So. 2d 969 (Fla. 1994) . . . . . . . . . . . . . . . . 48

Mendyk v. State,

592 So. 2d 1076 (Fla. 1992) . . . . . . . . . . . . . . 13, 53

Murray v. Giarratano,

492 U.S. 1 (1989) . . . . . . . . . . . . . . . . . . . . . 46

v

Nelson v. State,

274 So. 2d 256 (Fla. 4th DCA 1973) . . . . . . . . 45, 46, 48

Patton v. State,

25 Fla. L. Weekly S749 (Fla. Sept. 28, 2000) . . . . . . . 12

Pearson v. State,

657 So. 2d 21 (Fla. 2d DCA 1995) . . . . . . . . . . . . . 11

Peede v. State,

748 So. 2d 253 (Fla. 1999) . . 9, 15, 24, 27, 30, 38, 43, 46

Pennsylvania v. Finley,

481 U.S. 551 (1987) . . . . . . . . . . . . . . . . . . . . 46

Porter v. State,

478 So. 2d 33 (Fla. 1985) . . . . . . . . . . . . . . . . . 13

Provenzano v. Dugger,

561 So. 2d 541 (Fla. 1990) . . . . . . . . . . . . . . . . 35

Provenzano v. State,

761 So. 2d 1097 (Fla. 2000) . . . . . . . . . . . . . . . . 52

Ragsdale v. State,

720 So. 2d 203 (Fla. 1998) . . . . . . . . 15, 34, 35, 41, 52

Roberts v. State,

568 So. 2d 1255 (Fla. 1990) . . . . . . . . . . . . . . . . 13

Robinson v. State,

707 So. 2d 688 (Fla. 1998) . . . . . . . . 15, 17, 21, 24, 27

Rose v. State,

617 So. 2d 291 (Fla.),

cert. denied, 510 U.S. 903 (1993) . . . . . . . . . . . . . 39

Rose v. State,

675 So. 2d 567 (Fla. 1996) . . . . . . . . . . . . . . . . 16

Routly v. State,

590 So. 2d 397 (Fla. 1991) . . . . . . . . . . . . . . . . 36

Rutherford v. State,

727 So. 2d 216 (Fla. 1998) . . . . . . . . . . . . . . . . 36

vi

San Martin v. State,

591 So. 2d 301 (Fla. 2d DCA 1991),

rev. denied, 598 So. 2d 78 (Fla. 1992) . . . . . . . . . . 10

Shere v. State,

742 So. 2d 215 (Fla. 1999) . . . . . . . . . . . . . . 53, 54

Sims v. State,

754 So. 2d 657 (Fla.),

cert. denied, 120 S.Ct. 1233 (2000) . . . . . . . . . . . . 52

Stano v. State,

520 So. 2d 278 (Fla. 1988) . . . . . . . . . . . . . . . . 39

State v. Sireci,

502 So. 2d 1221 (Fla. 1987) . . . . . . . . . . . . . . . . 39

Steele v. Kehoe,

747 So. 2d 931 (Fla. 1999) . . . . . . . . . . . . . . 43, 47

Steinhorst v. State,

498 So. 2d 414 (Fla. 1986) . . . . . . . . . . . . . . . . 13

Strickland v. Washington,

466 U.S. 668 (1984) . . . . . . . . . . . . 15, 16, 25, 35, 37

Thomas v. Borg,

159 F.3d 1147 (9th Cir. 1998),

cert. denied, 526 U.S. 1055 (1999) . . . . . . . . . . . . 26

Valle v. State,

705 So. 2d 1331 (Fla. 1997) . . . . . . . . . . . . . . . . 16

Wilder v. State,

587 So. 2d 543 (Fla. 1st DCA 1991) . . . . . . . . . . . . 48

Williams v. State,

25 Fla. L. Weekly S1069 (Fla. Nov. 22, 2000) . . . . . 43, 47

Ziegler v. State,

452 So. 2d 537 (Fla. 1984) . . . . . . . . . . . . . . . . 52

Section 27.710, Florida Statutes . . . . . . . . . . . . . 43

Section 27.711(12), Florida Statutes, . . . . . . . . . . . 43

Finney’s direct appeal of his convictions and sentences, Florida

Supreme Court Case No. 80,990, will be referred to as "DA-R."

followed by the applicable volume and page number; references to

the record in the instant postconviction appeal, Florida Supreme

Court Case No. SC00-1351, will be referred to as "PC-R."

followed by the applicable volume and page number.

1

The appellant, Charles Finney, was indicted in February,

1991, for first degree murder, armed robbery, sexual battery,

represented at trial by court appointed counsel Barbara Pittman

(guilt phase) and Richard Escobar (penalty phase) (DA-R. V1/ 37-

38). Prior to trial, the defense secured the appointment of an

expert witness to assist with penalty phase (DA-R. V1/ 46-47),

and a continuance due to the fact that DNA testing on behalf of

the defendant would not be completed in time for trial (DA-R.

V1/ 31-32).

Prior to trial, the State nolle prossed Count III (DA-R. V2/

3). The evidence admitted at trial is outlined in this Court’s

opinion on direct appeal, Finney v. State, 660 So. 2d 674, 678-

79 (Fla. 1995), cert. denied, 516 U.S. 1096 (1996), affirming

the convictions and sentence of death:

According to the testimony at trial,

Sandra Sutherland was discovered stabbed to

death in her apartment shortly after 2 p.m.

on January 16, 1991. The victim was found

lying face down on her bed. Her ankles and

wrists were tied and she had been gagged.

2

On a nightstand near the bed was an open jar

of face cream. The lid was lying next to

the jar. The victim’s bedroom had been

ransacked, the contents of her purse had

been dumped on the floor, and her VCR was

missing.

According to the medical examiner the

cause of death was multiple stab wounds to

the back. Of the thirteen stab wounds, all

but one penetrated the lungs causing

bleeding and loss of oxygen, ultimately

resulting in death. No bruises or other

trauma was observed.

Numerous fingerprints were gathered from

the victim’s apartment, including prints

from a piece of paper with German writing

and from the jar on the nightstand.

Fingerprints also were taken from the

missing VCR, which was located at a local

pawn shop. Pawn shop records indicated that

the VCR was brought in on January 16 at 1:42

p.m. by Charles W. Finney for a loan of

thirty dollars. Finney’s fingerprints

matched prints taken from the pawn ticket,

the VCR, the jar lid, and the paper with

German writing.

After it was determined that Finney had

pawned the victim’s VCR, Detective Bell of

the Tampa Police Department interviewed

Finney on the afternoon of January 30, 1991.

Finney told Bell that he knew the victim due

to the fact that they had lived near each

other in the same apartment complex. Finney

told Bell that he had seen the victim twice

since she moved to another apartment in the

complex. Once, he had talked to her about

putting a screened porch on the back of her

new apartment and then about two months

prior to the murder he talked to her by the

mailboxes at the complex. When asked about

his whereabouts on the day of the murder,

Finney told Detective Bell that he was home

sick all day and never left his apartment.

Upon being confronted with the fact that he

had pawned the victim’s VCR, Finney told the

detective he found it near the dumpster when

he took out the garbage and then pawned it.

Finney called a witness who testified

3

that the day before the murder he saw the

victim arguing with a white male near the

mailboxes at the apartment complex. Another

defense witness testified that around 10

a.m. on the day of the murder, he saw

William Kunkle, who worked as a carpenter at

the apartment complex, come out of the

victim’s apartment. According to the

witness, when Kunkle saw him, Kunkle came

out of the door very quickly, locked the

door with a key, and walked around the

corner. The witness’s girlfriend offered

similar testimony as to Kunkle’s conduct.

In rebuttal, Kunkle testified that on

January 16 he worked in the building next

door to Ms. Sutherland’s apartment, but had

not been in her apartment that day. He

denied ever having any conversation or

interaction with the victim. The

fingerprint examiner also testified during

rebuttal that Kunkle’s fingerprints did not

match those found in the victim’s apartment.

The defense sought to recall the medical

examiner, Dr. Diggs, to testify that the

crime scene was consistent with both a

consensual sexual bondage situation and a

situation where the victim consented to

being bound and gagged out of fear. The

State objected to the testimony as

speculative. During proffer, Dr. Diggs told

the court that whether a bondage situation

was consensual was not something that a

medical examiner would typically testify

about or try to determine. The trial judge

disallowed any testimony about the

circumstances being consistent with sexual

bondage, but allowed Dr. Diggs to testify

concerning the probable positions of the

victim and of the attacker and about the

fact that there were no defensive wounds or

other signs of a struggle.

Finney took the stand in his own

defense. He testified that he had lived

near Ms. Sutherland in the same apartment

complex until she moved about eight months

prior to the murder. A couple of months

after she moved, Ms. Sutherland talked to

him about screening in the patio of her new

4

apartment. At that time, she handed him a

piece of paper to write down measurements

but took the paper back. Finney testified

that he returned about a week or two later

but Ms. Sutherland had decided not to screen

the patio. On that occasion he was in the

victim’s apartment, helped her move boxes

and took various items out of the boxes.

According to Finney the last time he saw Ms.

Sutherland was a day or two before the

murder. She was coming out of her apartment

early one morning. She came over to his car

and they talked. He further testified that

he found the VCR near the dumpsters at the

complex and had pawned it the same day for

pocket cash. He stated that he did not

steal the VCR and that he did not kill Ms.

Sutherland.

Finney was convicted of first-degree murder, armed robbery,

and dealing in stolen property (DA-R. V5/ 758). At sentencing,

the State presented the testimony of Judy Baker, the victim of

Finney’s prior violent felony conviction (DA-R. V6/ 820-839).

The defense presented the testimony of Finney’s common law wife,

Tammy Gallimore (DA-R. V6/ 839-859); a close friend and coworker,

Joseph Williams (DA-R. V6/ 860-869); and a forensic

psychologist, Dr. Michael Gamache (DA-R. V6/ 869-892). These

witnesses described Finney’s background and positive character

traits, including his strong work ethic and military service;

their testimony is more particularly related in Issues V and VI

herein.

The jury recommended death by a vote of nine to three (DA-R.

V6/ 921). The trial judge followed the recommendation, finding

three aggravating factors: 1) Finney previously had been

5

convicted of a violent felony; 2) the murder was committed for

pecuniary gain; and 3) the murder was especially heinous,

atrocious or cruel; and five nonstatutory mitigating factors:

1) Finney’s contributions to the community as evidenced by his

work and military history; 2) Finney’s positive character

traits; 3) Finney would adjust well to a prison setting and had

potential for rehabilitation; 4) Finney had a deprived

childhood; and 5) Finney’s bonding with and love for his

daughter (DA-R. V1/ 153-57).

Finney sought certiorari review in the United States Supreme

Court, challenging this Court’s finding of a procedural bar on

his claim of improper shackling. Review was denied on January

22, 1996. Finney v. Florida, 516 U.S. 1096 (1996).

Finney, through counsel, filed a "shell" motion for

postconviction relief on March 31, 1997, and an amended motion

on April 16, 1999 (PC-R. V1/ 19-53, 133-162). The trial court

held a Huff hearing on May 26, 1999 and thereafter entered an

Order granting an evidentiary hearing as to Claim I.B. of the

motion, on the issue of "DNA comparison of hair samples and

semen stains taken from crime scene with that of Mr. Kunkel

[sic], and dependent on said testing, any related issues

regarding said test results" (PC-R. V2/ 190). The court held a

number of status conferences to ensure that preparations for the

evidentiary hearing were ongoing (PC-R. V2/ 247-302; V3/ 303-

6

345).

In November, 1999, Finney filed a pro se motion for

dismissal of counsel, Jack Crooks of Capital Collateral Regional

Counsel - Middle Region (PC-R. V2/ 199-207). According to the

motion, Finney was concerned that Crooks intended to use

Finney’s pretrial DNA samples, which Finney feared had been

tampered with, to compare with the crime scene evidence in

preparing for the evidentiary hearing on this issue (PC-R. V2/

200-01). Finney asserted that new samples should be taken from

him in order to ensure the integrity of any evidentiary testing

performed (PC-R. V2/201). Finney also presented vague

allegations of dissatisfaction with counsel, noting that he had

lost the ability to communicate with counsel and that counsel

was employed by the Capital Collateral Regional Counsel for the

Middle Region, which had been criticized for the quality of

representation provided to other death row inmates (PC-R. V2/

201-04).

During the next status conference, on Nov. 24, 1999, the

parties reviewed Finney’s pro se request with the judge (PC-R.

V3/ 314-317). Both defense counsel and the prosecutor suggested

that the motion could be denied without a hearing; the

prosecutor noted that the only specific complaint involved the

DNA evidence, which was being addressed (PC-R. V3/ 317). The

judge concluded that the motion was legally insufficient, and

motion for rehearing are not included in the current record on

appeal; copies of these orders are appended to this brief as Ex.

A and B.

7

denied the motion (PC-R. V3/ 317). Within a few weeks of this

hearing, another hearing was held on a defense motion to secure

a blood draw from Finney for DNA testing comparison purposes;

this motion was granted without objection (PC-R. V2/ 207-09,

210-11; V3/ 320-323).

At a hearing on May 4, 2000, Finney advised the court that

he was withdrawing the DNA claim, and consequently the court

denied the motion to vacate (PC-R. V3/ 335-340). Finney filed

a motion for rehearing, alleging that this Court has indicated

that evidentiary hearings should be held on all initial

postconviction motions, and requesting that an evidentiary

hearing be held on all claims presented in the initial motion

(PC-R. V2/ 212-235). After hearing argument of counsel, the

This appeal follows.

8

The court below properly summarily denied Finney’s motion

for postconviction relief. All of the claims which he presents

are facially invalid and/or refuted by the record and files in

this case. His ineffective assistance of counsel claims, Issues

II through VII, do not warrant an evidentiary hearing. His

complaint as to the adequacy of his prior postconviction

counsel, Issue VIII, does not offer a basis for any relief. His

claims challenging the constitutionality of Florida’s death

penalty statute, cumulative error and actual innocence in

sentencing, Issues IX - XI, are procedurally barred,

insufficiently pled, and without merit.

9

Finney initially attacks the adequacy of the trial court’s

order denying postconviction relief. Specifically, Finney

asserts that the trial court was without jurisdiction to enter

the order; that the trial court’s order does not adequately

explain its reasons for denying the motion; that an evidentiary

hearing should be ordered because the denial of evidentiary

hearings is a cause of unwarranted delay in capital

postconviction proceedings; and that the court’s order fails to

establish that the files and records in this case conclusively

show that Finney is entitled to no relief. As will be seen,

each of these assertions is without merit.

A trial court’s summary denial of a motion to vacate will

be affirmed where the court properly applied the law and

competent substantial evidence supports its findings. Diaz v.

Dugger, 719 So. 2d 865, 868 (Fla. 1998), cert. denied, 526 U.S.

1100 (1999). This Court must accept the factual allegations in

the motion to the extent they are not refuted by the record, and

the summary denial must be upheld if the claims are facially

invalid or conclusively refuted by the record. Peede v. State,

Jurisdiction which represented that the Notice of Appeal in this

case "actually appeals a written order of [May 17, 2000] which

denied a motion for rehearing," but this order is not included

in the record on appeal, suggesting that it was never properly

filed with the clerk below. Even if the order was filed,

however, the subsequent Notice of Appeal would be deemed a

proper invocation of appellate jurisdiction in this case, and

this Court would have "such jurisdiction as may be necessary for

a complete determination of the cause," pursuant to Florida Rule

of Appellate Procedure 9.040(a), and therefore may now properly

consider the validity of the trial court’s denial of Finney’s

motion to vacate. See also, San Martin v. State, 591 So. 2d 301

(Fla. 2d DCA 1991) (entry of nunc pro tunc order after notice of

appeal filed was permissible even without formal remand since

entry of order was procedural matter relating to cause on appeal

within jurisdiction of lower court), rev. denied, 598 So. 2d 78

(Fla. 1992).

10

748 So. 2d 253, 257 (Fla. 1999).

Finney first alleges that the court below had no

jurisdiction to enter the order denying his postconviction

motion, because the previously-filed notice of appeal divested

the trial court of jurisdiction. Contrary to Finney’s

allegation, the notice of appeal filed below did not divest the

circuit court of jurisdiction because there was no written order

controlled by Florida Rule of Appellate Procedure Rule

9.110(m), which provides that although a premature appeal (when

the notice of appeal is filed prior to the written order) may be

subject to dismissal before the rendition of the final order, an

order which is rendered before the appeal has been dismissed is

effective to vest jurisdiction in the appellate court. Thus, it

11

is not the trial court which did not have jurisdiction on

October 31, 2000 (the date the order was signed), but rather

this Court which did not actually have jurisdiction until the

order denying the motion to vacate was rendered.

Finney’s reliance on Pearson v. State, 657 So. 2d 21 (Fla.

2d DCA 1995), to support his argument as to a lack of

jurisdiction in this case is misplaced. Pearson involved an

appeal in a case where a juvenile had been sentenced as an

adult, which by law requires contemporaneous written findings by

the trial court. Although the Pearson court noted that the

trial court’s jurisdiction had been divested prior to the filing

of the written reasons, it also held that the trial court’s

"nunc pro tunc" findings were insufficient to satisfy the

requirement of contemporaneity. In the instant case, there is

no legal requirement that a trial judge offer written reasons

for the denial of a postconviction motion to vacate

contemporaneous with the denial of the motion, and therefore the

nunc pro tunc order rendered below is properly before this

Court.

Finney’s next assertion, that the order fails to

sufficiently explain its reasons for denying each claim, is

refuted by a review of the order. The twelve-page order

addresses the individual issues raised and explains the trial

12

court’s reasons for denying the claims; it is clearly sufficient

to permit meaningful appellate review by this Court. See, Diaz,

719 So. 2d at 867 (to support summary denial, trial court must

either state its rationale in its decision or attach those

specific parts of the record that refute each claim presented in

the motion).

To the extent that Finney is making a generic argument that

the order falls "below any threshold of legal acceptability"

under Patton v. State, 25 Fla. L. Weekly S749 (Fla. Sept. 28,

2000), his claim must be rejected. In Patton, this Court denied

an attack on a trial court’s postconviction order. The trial

court in Patton signed an order which had been prepared by the

State at the court’s request, and Patton alleged that the judge

instead should have written his own order of one sentence

stating the court denied the motion based upon the State’s

arguments; this Court noted that such a conclusory order would

have been insufficient. The opinion does not proscribe a

"threshold of legal acceptability" and there is no reason to

suggest that the lengthy order rendered below could be

comparable to the one-sentence order which was rejected

theoretically in Patton. Thus, the alleged deficiency of the

order offers no basis for relief in this appeal.

Finney next asserts that the court below should have granted

13

an evidentiary hearing because this Court has recognized the

denial of evidentiary hearings as an unnecessary cause of delay

in capital postconviction proceedings. The fact that this Court

has expressed the view that unwarranted delay in many cases

could be avoided by requiring an evidentiary hearing on every

initial postconviction motion does not demonstrate that a

hearing would be beneficial even when legally insufficient

motions have been presented, as in the instant case. Despite

the consideration of automatic hearings in discussions proposing

procedures for timely resolution of postconviction motions, no

such requirement currently exists, and the court below cannot be

faulted for refusing to have a hearing merely for the sake of

having a hearing. Since, as will be seen, none of the claims

presented in Finney’s postconviction motion warranted

evidentiary development, there is no error shown in the trial

court’s denial of an evidentiary hearing below.

Although trial courts are encouraged to have evidentiary

hearings on postconviction motions, if the motion lacks

substantial factual allegations, or where alleged facts do not

render the judgment vulnerable to collateral attack, the motion

may be summarily denied. Steinhorst v. State, 498 So. 2d 414,

414-415 (Fla. 1986); Porter v. State, 478 So. 2d 33 (Fla. 1985).

A hearing is only warranted on an ineffective assistance of

14

counsel claim where a defendant alleges specific facts, not

conclusively rebutted by the record, which demonstrate a

deficiency in performance that prejudiced the defendant. LeCroy

v. Dugger, 727 So. 2d 236, 239 (Fla. 1998); Cherry v. State,

659 So. 2d 1069, 1072 (Fla. 1995); Jackson v. Dugger, 633 So. 2d

1051, 1055 (Fla. 1993); Mendyk v. State, 592 So. 2d 1076, 1079

(Fla. 1992); Roberts v. State, 568 So. 2d 1255, 1256-1260 (Fla.

1990); Kennedy v. State, 547 So. 2d 912, 913 (Fla. 1989).

Finney had the burden of establishing a prima facie case of

a legally valid claim in order to receive an evidentiary

hearing. Freeman v. State, 761 So. 2d 1055, 1061 (Fla. 2000).

Since the postconviction motion filed below did not render

Finney’s convictions or sentence vulnerable to collateral

attack, the trial court properly denied the motion without an

evidentiary hearing.

15

Finney’s next claim challenges the summary denial of his

claim of ineffective assistance of trial counsel based on

counsel’s failure to object to prosecutorial comments and

arguments. This claim, premised entirely on the trial

transcript, is clearly an improper attempt to use postconviction

proceedings as a second appeal, and should be rejected as

procedurally barred. Ragsdale v. State, 720 So. 2d 203, 204-

205, n. 1, 2 (Fla. 1998); Robinson v. State, 707 So. 2d 688,

697-698 (Fla. 1998) (cannot litigate direct appeal claims under

guise of ineffective assistance of counsel). Even if this

issue is considered, however, no relief is warranted. The

summary denial of this issue must be upheld if the claim is

facially invalid or conclusively refuted by the record.

Freeman, 761 So. 2d at 1061; Peede, 748 So. 2d at 257. The

claim is refuted by the record since the trial transcript shows

that no prosecutorial misconduct warranting an objection by the

defense occurred.

In Strickland v. Washington, 466 U.S. 668, 689 (1984), the

United States Supreme Court established a two-part test for

reviewing claims of ineffective assistance of counsel, which

16

requires a defendant to show that (1) counsel’s performance was

deficient and fell below the standard for reasonably competent

counsel and (2) the deficiency affected the outcome of the

proceedings. The first prong of this test requires a defendant

to establish that counsel’s acts or omissions fell outside the

wide range of professionally competent assistance, in that

counsel’s errors were "so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment." 466 U.S. at 687, 690; Valle v. State, 705 So.

2d 1331, 1333 (Fla. 1997); Rose v. State, 675 So. 2d 567, 569

(Fla. 1996). The second prong requires a showing that the

"errors were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable," and thus there is a

reasonable probability that, but for counsel’s errors, the

result of the proceedings would have been different. 466 U.S.

at 687, 695; 705 So. 2d at 1333; 675 So. 2d at 569. A proper

analysis requires that counsel’s performance be reviewed with a

spirit of deference; there is a strong presumption that

counsel’s conduct was reasonable. 466 U.S. at 689.

Finney’s allegations will be addressed in turn; however, no

deficiency or prejudice can be predicated on the failure to

object to proper comment and argument. Thus, Finney is not

entitled to any relief in this issue.

17

1. FAILURE TO OBJECT DURING VOIR DIRE

The bulk of this issue, and the two ineffective assistance

of counsel claims that follow in Issues III and IV, disputes the

adequacy of Finney’s trial attorneys during voir dire. As

previously noted, the claim that counsel failed to conduct jury

selection in a reasonably professional manner is procedurally

barred, as it is based entirely on the transcript of the trial

and therefore could have been raised on direct appeal.

Robinson, 707 So. 2d at 697, n. 16.

Furthermore, a review of the transcript of the jury

selection as a whole clearly demonstrates that defense counsel

acted reasonably as the advocate required by the Sixth

Amendment. It is evident that the lack of any objection to the

alleged misconduct by the prosecutor is due to the lack of any

misconduct, not to inadequacy of counsel. Finney first

challenges prosecutorial remarks which he asserts misstated the

law with regard to aggravating and mitigating factors. It is

important to review the challenged comments in context. In the

first comment, the prosecutor states that the Legislature has

authorized the State to rely on the facts of the murder itself

in seeking the death penalty (DA-R. V2/ 130-31). This remark

was occasioned by prospective juror Goff’s comments that she

believed in the death penalty and, if phase two followed through

18

with the presentation "like it should," she would keep an open

mind about recommending a death sentence. The prosecutor was

obviously concerned that this comment indicated that the

prospective juror expected that the State would be submitting

evidence in the penalty phase of the trial, and his response was

merely a recognition that the statute does not require the State

to submit additional evidence, but that the State may rely on

guilt phase evidence about the crime itself to justify a death

sentence. No impropriety exists with regard to this comment.

Similarly, the second challenged comment was responsive to

questions about how the State determines when to seek the death

penalty when seeking a murder conviction (DA-R. V2/ 150-52).

The prosecutor was expressing that the State is guided by the

statute, which sets forth aggravating factors, any one of which

may be sufficient for imposition of a death sentence. This is

a correct statement of the law, and again no impropriety has

been demonstrated.

In the comments now disputed, the prosecutor was not

purporting to instruct the jury on the law with regard to their

recommendation, he was simply attempting to respond to specific

questions and concerns raised about the penalty phase process.

As noted at the time, attorneys are constrained in jury

selection because they can not discuss the particular facts of

the case (DA-R. V2/ 153). The prosecutor’s comments below were

19

appropriate responses to the questions asked and issues raised,

and since the remarks were proper, the defense attorneys were

not performing deficiently by neglecting to object to these

statements.

Finney also asserts that the prosecutor improperly inferred

that the State would have other evidence to present during the

penalty phase, citing a number of times where the prosecutor

asked potential jurors if they could promise to keep an open

mind throughout the penalty phase until they had heard all of

the evidence presented. Finney does not explain why it was

improper for the State to tell the jury that additional

evidence, testimony and argument of counsel may be forthcoming

at the penalty phase. In fact, the law provides for the

presentation of additional evidence in the penalty phase, so the

prosecutor was correctly telling the jury what the law requires.

Although Finney couches this claim as the prosecutor referring

to "other crimes" in the penalty phase, the prosecutor obviously

did not reveal that the State had evidence of another crime, or

otherwise intimate the nature of any evidence to be presented in

any penalty phase. The prosecutor also did not imply that the

evidence would be one-sided, and in fact advised the jurors that

the State was not required to present any penalty phase

testimony, but could simply rely on the facts of the crime as

presented in the guilt phase.

20

Once again, counsel for Finney cannot be deemed to have been

ineffective for failing to object to proper argument. Since no

impropriety has been demonstrated with regard to the

prosecutor’s remarks during voir dire, Finney’s allegations fall

far short of warranting an evidentiary hearing on this claim.

Finney’s final assertion in this sub-issue involves trial

counsel’s failure to object to the prosecutor’s statement that

he would not "take issue and argue with" the belief that the

death penalty should be imposed in every first degree murder

case. Once again, reviewed in context, no impropriety can be

discerned from this comment. The prosecutor was not offering

his personal view, he was merely reminding the potential jurors

that individual opinions about the death penalty were not

important, what mattered was the jurors’ ability to set aside

their personal feelings and follow the law. Throughout the jury

selection, the prosecutor constantly reminded the prospective

panel that the death penalty was not appropriate in all first

degree murder cases (See, DA-R. V2/ 105, 106, 113, 122, 128,

131). In fact, immediately before the comments recited in

Finney’s brief, the prosecutor had told jurors he would not

"take issue" with anyone who opposed the death penalty, that all

of their feelings were acceptable, but it was important for the

lawyers to know what those feelings were (DA-R. V2/ 110; see

also, V2/ 119, telling juror concerned with her ability to vote

21

for death, he’s not "trying to take issue with you on anything

at all").

Finney’s failure to establish any impropriety in the

prosecutor’s comment again compels the conclusion that his

attorneys were not deficient in failing to object. Furthermore,

even if any deficiency could be presumed on these facts, no

possible prejudice has even been suggested. The transcript of

the penalty phase establishes that the jury was completely and

accurately instructed on the law with regard to weighing the

aggravating and mitigating circumstances (DA-R. V6/ 916-920).

This case was highly aggravating and the nine to three

recommendation for death would surely have been obtained even if

the challenged comments from jury selection had never been made.

No basis for an evidentiary hearing on ineffective assistance of

counsel has been presented in this claim, and this Court must

affirm the summary denial of this issue entered below.

2. FAILURE TO OBJECT TO PROSECUTORIAL ARGUMENT

Finney also asserts that his attorney was ineffective in

failing to object to the prosecutor’s penalty phase closing

argument. It must be noted again that this claim is

procedurally barred, as the issue of the propriety of the

State’s argument was considered by this Court in the direct

appeal, and therefore is not subject to being revisited in

22

postconviction proceedings. Finney, 660 So. 2d at 683; see,

Arbelaez v. State, 25 Fla. L. Weekly S586, S588 (Fla. July 13,

2000); Robinson, 707 So. 2d at 697-698 (cannot relitigate

direct appeal claims under guise of ineffective assistance of

counsel).

Furthermore, no reasonable claim of deficient performance

by trial counsel in failing to object can be offered. The

transcript of the State’s argument reflects that the prosecutor,

in discussing the aggravating factor of pecuniary gain, stated

that the fact that the victim had been killed for a mere thirty

dollars was "disgusting" (DA-R. V6/ 901). Within the same page

on the transcript, the prosecutor addressed the facts of

Finney’s prior conviction -- a rape and robbery two weeks after

the murder in this case -- and also characterized that crime as

"disgusting" (DA-R. V6/ 901-02). At that point, defense counsel

in fact objected and requested a mistrial, claiming the

prosecutor had twice offered his personal views of disgust (DAR.

V6/ 902-03). Since defense counsel in fact objected to this

argument, Finney’s current claim that counsel was deficient for

not objecting is without merit and clearly refuted by the

record. In addition, any claim of prejudice would be unavailing

since this Court considered the prosecutor’s characterization of

the prior conviction as "disgusting" on direct appeal and

determined that "the argument was not so egregious as to warrant

23

reversal." 660 So. 2d at 683.

Thus, Finney’s claim of ineffective assistance of trial

counsel due to failure to object to prosecutorial comments is

rebutted by the trial record. Therefore, the court below

properly denied an evidentiary hearing on this claim. See,

LeCroy, 727 So. 2d at 239 (noting defendant’s burden to allege

specific facts which are not conclusively rebutted by the record

and which demonstrate a deficiency on the part of counsel that

was detrimental to the defendant).

24

Finney’s next claim asserts that counsel was ineffective for

failing to adequately question potential jurors about their

views on race. Once again, this claim is procedurally barred,

Robinson, 707 So. 2d at 697, n. 16, as well as without merit.

This Court must affirm the summary denial of claims that are

facially invalid or conclusively refuted by the record.

Freeman, 761 So. 2d at 1061; Peede, 748 So. 2d at 257. A review

of the record in this case establishes the invalidity of the

claim presented, and therefore no relief is warranted.

As this issue is presented in Finney’s brief, defense

counsel was allegedly alerted to the need to inquire about race

when a prospective juror stated that she "thought it was a

racial thing at the time," which, according to Finney, referred

"to the pre-trial press accounts of a black man killing a white

woman" (Initial Brief of Appellant, p. 16). Finney’s conclusion

that the prospective juror’s reference to a "racial thing" had

something to do with the crime in this case is inexplicable.

The statement was made shortly after defense counsel Pittman’s

questioning of the panel began. The exchange occurred as

follows:

25

MS. PITTMAN: Okay. This question is

directed to this side of the room: Has

anyone on this side of the room ever been

wrongly accused of doing something that

wasn’t so nice? Okay, Ms. Kinsey. How did

that make you feel?

MS. KINSEY: I thought it was a racial

thing at the time.

MS. PITTMAN: Okay. Anyone else?

Anyone on this side of the room been the

subject of a not-so-nice rumor that wasn’t

true? Okay. Ms. McLawhorn, how did that

make you feel?

(DA-R. V2/168). During the entire jury selection, there was

never any reference to any pretrial press about a black man

killing a white woman. Finney clearly has no basis to suggest

that race was ever an issue in the proceedings below.

Finney’s claim in this issue is a classic example of the

Monday-morning quarterbacking prohibited by Strickland. His

argument simply criticizes counsel’s actions during jury

selection and speculates that counsel’s performance was

deficient and prejudicial. Notably, Finney never explains how

his current suggestions for trying the case could have possibly

made any difference, and this allegation of ineffectiveness

again falls short of demanding an evidentiary hearing.

Similarly, no possible prejudice can be discerned from this

allegation of ineffective assistance of counsel. There is no

claim that any juror on the panel was biased or prejudiced, and

Finney has not offered a particular objection to any of the

jurors that participated in his trial. The evidence against

26

Finney was strong, and no reasonable claim of a different

verdict has been offered. No allegation of innocence is

submitted and no new theory of defense has been suggested. In

fact, Finney’s brief does not even present a conclusory

allegation of prejudice with regard to this issue. Since the

outcome would not have been different even if voir dire had been

conducted as now suggested, no prejudice accrued. See, Thomas

v. Borg, 159 F.3d 1147, 1152 (9th Cir. 1998) (in rejecting claim

that counsel was ineffective for failing to establish

underrepresentation of blacks on his jury, court found no

prejudice because evidence was so overwhelming that no

reasonable juror, black or white, would have voted to acquit

Thomas), cert. denied, 526 U.S. 1055 (1999).

Given the speculative nature of Finney’s second-guessing

trial counsel’s jury selection, the lack of any clearly

identifiable bias among the jurors that convicted him, and the

absence of any possible prejudice, the court below properly

summarily denied this claim.

27

Finney’s next claim asserts that counsel was ineffective for

failing to adequately challenge the exclusion of two prospective

jurors who were released for cause due to their views on the

death penalty. Once again, this claim is procedurally barred,

Robinson, 707 So. 2d at 697, n. 16, as well as without merit.

This Court must affirm the summary denial of claims which are

facially invalid or conclusively refuted by the record.

Freeman, 761 So. 2d at 1061; Peede, 748 So. 2d at 257. This

claim is clearly refuted by the record, both because counsel did

object to the exclusion of these jurors, and because the court’s

granting of the State’s cause challenges was proper.

Finney disputes the cause challenges granted on prospective

jurors Jennings and Silas. The most glaring impediment to

relief on this claim is that during the bench conference to

challenge jurors, defense counsel did oppose the excusal of both

Jennings and Silas, stating that she had rehabilitated them

during her questioning (DA-R. V3/ 218, 220-221). The next

morning, prior to the jury being sworn, defense counsel again

reiterated her objection to the granting of these challenges

(DA-R. V3/ 243-44: "Judge, one other thing I would like to put

28

on the record concerning the voir dire yesterday. We would like

the record to note that we object to the Court striking Juror

No. 2, Mr. Jennings; Juror No. 15, Ms. Jackson; and Juror No.

25, Mr. Silas." V3/ 247, jury sworn). Thus, the claim of

deficiency for failing to challenge the State’s exclusion of

Jennings and Silas is clearly refuted by the record.

In addition, no possible prejudice can be discerned since

the record reflects that both Jennings and Silas were properly

excluded. Thus, any further objection to the granting of these

challenges would not have prevailed on appeal. Finney’s brief

simply selects isolated portions of the questioning of these

veniremen, and asserts that their indications of being able to

keep an open mind precluded the cause challenges. Such is not

the test. Even if a prospective juror responds affirmatively to

a defense attorney’s query whether he could follow the oath

administered and apply the law as instructed by the judge, an

excusal for cause may be appropriate where he has previously

expressed uncertainty during voir dire. Kimbrough v. State, 700

So. 2d 634, 639 (Fla. 1997).

A trial court’s decision on whether or not to strike a juror

for cause is reviewed for abuse of discretion, and will not be

disturbed absent manifest error. Kearse v. State, 770 So. 2d

1119 (Fla. 2000) (noting that a trial court has great discretion

when deciding whether to grant or deny a challenge for cause,

29

recognizing that the trial court has a unique vantage point

because the trial court is able to see the jurors’ voir dire

responses and make observations which simply cannot be discerned

from an appellate record, and concluding that it is the trial

court’s duty to determine whether a challenge for cause is

proper); Fernandez v. State, 730 So. 2d 277, 281 (Fla. 1999);

Kimbrough, 700 So. 2d at 639; Castro v. State, 644 So. 2d 987

(Fla. 1994) (excusing a juror for cause is subject to abuse of

discretion review because the trial court has the opportunity to

observe and evaluate the prospective juror’s demeanor and

credibility). No abuse of discretion could be shown the

granting of the cause challenges to prospective jurors Jennings

and Silas, and therefore any failure to object to these rulings

could not be prejudicial to Finney.

Once again, Finney’s brief does not even present a

conclusory allegation of prejudice with this issue. Clearly,

his claim in this regard is refuted by the record, and the court

below properly summarily denied this claim. See, LeCroy, 727

So. 2d at 239 (noting defendant’s burden to allege specific

facts which are not conclusively rebutted by the record and

which demonstrate a deficiency on the part of counsel that was

detrimental to the defendant).

30

Finney next faults penalty phase counsel for failing to

present additional witnesses to provide mitigation evidence.

Although this is an appropriate claim for postconviction

consideration, Finney’s allegations are insufficient to warrant

an evidentiary hearing. Therefore, this claim was also properly

summarily denied. This Court must affirm the summary denial of

claims that are facially invalid. Freeman, 761 So. 2d at 1061;

Peede, 748 So. 2d at 257. This claim is facially invalid

because it does not offer specific facts of mitigating evidence

which could have been presented or how such evidence could have

affected the outcome of the case to warrant an evidentiary

hearing.

Finney identifies several witnesses which he asserts should

have been presented during the penalty phase of his trial:

Anastasia Jones, a fellow employee at the Huddle House where

Finney worked; Jo Ann Nelson and Otis Williams, both of whom

worked with Finney at the University of South Florida; and

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

Lynn Wesley, and Joyce Wesley. However, Finney does not offer

a single fact to which any of these witnesses could have

testified. The most he provides is a characterization of the

31

witnesses as "background and character witnesses" that "could

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

the defendant as a person" (Initial Brief of Appellant, p. 20).

Finney’s failure to allege specific facts regarding possible

evidence that could have been presented through these witnesses

renders his postconviction allegation facially insufficient.

Rule 3.850(c)(6) expressly requires the recitation of the facts

relied upon in support of a postconviction motion; the

conclusory nature of this claim, as presented, compelled summary

denial. See, LeCroy, 727 So. 2d at 239; Jackson, 633 So. 2d at

1054 ("Conclusory allegations are not sufficient to require an

evidentiary hearing"); Kennedy, 547 So. 2d at 913.

A review of the penalty phase testimony that was presented

at Finney’s trial reveals that a great deal of background and

character evidence was provided to the judge and jury. Finney’s

common law wife, Tammy Gallimore, spoke at length about Finney’s

positive character traits, describing him as gentle, kind and

caring and relating how he had supported her emotionally and

financially as she pursued her education and through her

pregnancy and the birth of their daughter (DA-R. V6/ 840-856).

She spoke of his being a hard worker, taking a second job when

they lived in Georgia in order to make voluntary child support

payments to his ex-wife and again when they were in Florida to

help their financial situation (DA-R. V6/ 841-42, 854-55). She

32

described his devotion to their daughter, even through his

incarceration, and extensively discussed his artistic talents

(DA-R. V6/ 848-54). She noted that everyone liked Finney, and

that he always had stable employment as well as helping her

around the house (DA-R. V6/ 840-43, 846, 849).

The defense also presented Joseph Williams, a friend that

met Finney and helped him get a job at the University Community

Hospital shortly after Finney moved to Florida (DA-R. V6/ 861-

63). Williams testified that he loved Finney like a son, that

Williams’ two sons, ex-wife, and mother all liked Finney a lot

(DA-R. V6/ 864-66, 868). He expressed that Finney was honest,

appreciative, completely trustworthy, very spiritual, and crazy

about his (Finney’s) family (DA-R. V6/ 863-66). He knew that

Finney had been honorably discharged from the service and stated

Finney was "the best working man" Williams had ever seen; he

would do anything that anyone asked of him, a dependable,

enthusiastic employee (DA-R. V6/ 865, 867).

Another penalty phase witness was Dr. Michael Gamache, a

forensic psychologist (DA-R. V6/ 869-70). Dr. Gamache conducted

two clinical examinations, spending a total of five to five and

a half hours with Finney (DA-R. V6/873). He described Finney’s

background in detail. Finney had been born in Macon, Georgia,

where his family lived at or near poverty level (DA-R. V6/ 874).

His mother was a dietician, and his father was a carpenter (DA-

33

R. V6/ 874). His father was also a very heavy drinker; he

abandoned the family when Finney was about three (DA-R. V6/

874). Finney was the youngest of three children (DA-R. V6/

874). He described Finney as an average or better student that

got along well with teachers and other students (DA-R. V6/ 875).

He noted that Finney enlisted in the Army after graduation,

serving two years in the First Airborne Ranger Division before

being honorably discharged (DA-R. V6/ 875-76). Upon returning

to Macon, he used his military benefits to pursue education and

career goals (DA-R. V6/ 876). He had gotten married while in

the military, and had a son born in 1973, when he was still in

the Army (DA-R. V6/ 876). He maintained stable employment and

provided for his family, ultimately landing a "plum" job at a

power plant with job security and benefits (DA-R. V6/ 876-78).

He and his wife were both religious, but they grew apart and

started losing interest in each other; they were separated and

then divorced (DA-R. V6/ 877-78). Finney met Tammy and they

became close; he was willing to give up his secure job to come

with her to Florida, where she wanted to continue her education

(DA-R. V6/ 879).

Dr. Gamache noted that Finney had been a very good employee

his entire adult life; there was never any problem or

dissatisfaction with his work habits (DA-R. V6/ 880). Gamache

had spoken with Tammy at length, and she had corroborated

34

Finney’s description of the ending of his first marriage and the

strength of their relationship, as well as Finney’s very close

bond with his daughter (DA-R. V6/ 880-81). He noted that

Finney, Tammy, and daughter Shannon were a very tight, loving

family, and that the family relationships were very strong and

positive, without any serious problems (DA-R. V6/ 880-81).

The testimony that was presented at the penalty phase

compelled the trial judge to find and weigh mitigating factors

including Finney’s contribution to community and society as

evidenced by his exemplary work and military history; his

positive character traits; his ability to adjust well in prison

and his excellent potential for rehabilitation; his deprived

childhood; and his continued contribution to his family through

the bonding and love he showed for his daughter through frequent

visitations and contacts (DA-R. V1/155-56). No additional

mitigating factors are identified in Finney’s postconviction

motion as available through the other witnesses he now claims

should have been presented.

Finney’s failure to allege any information or evidence that

could have been presented had the newly identified witnesses

testified at trial is fatal to his claim. Although he faults

the court below for rejecting this claim based on counsel’s

representation at the Huff hearing that these witnesses "may

have been somewhat cumulative" to the trial testimony, he fails

35

to suggest how the outcome of his trial could have been affected

had the additional witnesses testified. Therefore, no claim

worthy of an evidentiary hearing has been offered. As in

Ragsdale, "[Finney] has provided insufficient facts as to what

would have been introduced or how the outcome would have been

different had counsel acted otherwise" to obtain an evidentiary

hearing. 720 So. 2d at 208.

Since Finney has not identified any evidence that would

have contributed to the family history and character testimony

which was presented at his resentencing, this allegation of

ineffective assistance did not warrant an evidentiary hearing.

See, Provenzano v. Dugger, 561 So. 2d 541, 546 (Fla. 1990)

(cumulative background witnesses would not have changed result

of penalty proceeding); Foster v. Dugger, 823 F.2d 402, 406

(11th Cir. 1987) (the mere fact that other witnesses might have

been available or other testimony might have been elicited is

not a sufficient ground to prove ineffectiveness).

On these facts, Finney has failed to offer sufficient

allegations of any attorney deficiency to warrant an evidentiary

hearing on this claim. However, Strickland also counsels that,

if it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, it is not necessary to

address whether counsel’s performance fell below the standard of

reasonably competent counsel. 466 U.S. at 697. In this case,

36

even if deficient performance is presumed, the lack of prejudice

is clear.

In Buenoano v. Dugger, 559 So. 2d 1116 (Fla. 1990), trial

counsel had allegedly failed to present mitigating evidence that

Buenoano had an impoverished childhood and was psychologically

dysfunctional. Buenoano’s mother had died when Buenoano was

young, she had frequently been moved between foster homes and

orphanages where there were reports of sexual abuse, and there

was available evidence of psychological problems. Without

determining whether Buenoano’s counsel had been deficient, the

court held that there could be no prejudice in the failure to

present such evidence in light of the aggravated nature of the

crime. See also, Routly v. State, 590 So. 2d 397, 401-402 (Fla.

1991) (additional evidence as to defendant’s difficult childhood

and significant educational/behavioral problems did not provide

reasonable probability of life sentence if evidence had been

presented); Rutherford v. State, 727 So. 2d 216, 224-225 (Fla.

1998) (postconviction identification of evidence cumulative to

that at trial will not establish ineffectiveness of counsel).

In light of the testimony that was presented at the penalty

phase, the newly proffered witnesses are not compelling. Finney

was presented as a nice person and a hard worker. Defense

presented the circumstances of Finney’s father having been a

very heavy drinker who abandoned the family when Finney was

37

about three years old. This is clearly not a case where the

postconviction motion revealed substantial mitigation, or any

mitigation, that had not been presented at trial.

In order to establish prejudice to demonstrate a Sixth

Amendment violation in a penalty phase proceeding, a defendant

must show that, but for the alleged errors, the sentencer would

have weighed the balance of the aggravating and mitigating

factors and found that the circumstances did not warrant the

death penalty. Strickland, 466 U.S. at 694. The aggravating

factors found in this case were: prior violent felony

conviction, committed for pecuniary gain, and committed in a

heinous, atrocious or cruel manner. This was a senseless,

brutal crime against a young neighbor woman. Finney has not and

cannot meet the standard required to prove that his penalty

phase attorney was ineffective when the facts to support the

aggravating factors are compared to the allegations of

cumulative mitigation now argued by collateral counsel.

The investigation and presentation of mitigating evidence

in this case was well within the realm of constitutionally

adequate assistance of counsel. Trial counsel conducted a

reasonable investigation, presented appropriate penalty phase

evidence, and forcefully argued for the jury to recommend

sparing Finney’s life. There has been no prejudicially

deficient performance alleged with regard to the way Finney was

38

represented in the penalty phase of his trial. Therefore, the

court below properly summarily denied this claim.

39

Finney’s next allegation of ineffective assistance of

counsel asserts that counsel failed to provide sufficient

background evidence to the mental health expert, Dr. Gamache.

As noted previously, Dr. Gamache testified extensively at trial

about Finney’s childhood and background; Finney has not

identified any errors or omissions in the background testimony

given by Gamache at trial. Furthermore, he has not alleged how

the provision of any additional background information would

have affected Gamache’s opinions at the time of trial. Once

again, this Court must affirm the ruling below because claims

which are facially invalid or conclusively refuted by the record

are properly summarily denied. Freeman, 761 So. 2d at 1061;

Peede, 748 So. 2d at 257.

Finney’s failure to allege any information which should have

been, but was not, provided to the expert again precludes the

granting of relief in this issue. He has simply not provided

sufficient facts to have warranted an evidentiary hearing. He

has not identified any specific deficiency with regard to his

mental health evaluation or with Dr. Gamache’s conclusions. He

has not cited any relevant mental health evidence which was

40

available at the time but not considered by his expert. Finney

does not even claim that a new expert could offer additional,

favorable mental health testimony, but even if he did, such

would not be a sufficient basis for relief. Engle v. Dugger,

576 So. 2d 696, 700-01 (Fla. 1991) ("This is not a case ... in

which a history of mental retardation and psychiatric

hospitalizations had been overlooked"); Correll v. State, 558

So. 2d 422, 426 (Fla. 1990); Hill v. Dugger, 556 So. 2d 1385,

1388 (Fla. 1990), cert. denied, 116 S. Ct. 196 (1995); Stano v.

State, 520 So. 2d 278, 281 (Fla. 1988) ("That Stano has now

found experts whose opinions may be more favorable to him is of

little consequence").

Mental health evaluations may be considered constitutionally

inadequate so as to warrant a new sentencing hearing where the

mental health expert ignored "clear indications" of either

mental retardation or organic brain damage. Rose v. State, 617

So. 2d 291, 295 (Fla.), cert. denied, 510 U.S. 903 (1993); State

v. Sireci, 502 So. 2d 1221, 1224 (Fla. 1987). In order to

obtain an evidentiary hearing on this claim, Finney must have

alleged more than the conclusory argument presented in his

motion. Engle, 576 So. 2d at 702. Since he has failed to

specifically identify any inadequacies in his mental health

examination, or to otherwise show that his mental health

assistance was constitutionally ineffective, this claim was

41

properly summarily denied.

Similarly, no possible prejudice can be discerned from the

allegations of ineffective assistance of counsel based on the

failure to provide additional background information to Dr.

Gamache. Dr. Gamache testified at trial that he had conducted

tests which revealed that Finney was not psychotic, had no major

depression or mania, and no learning disability (DA-R. V6/ 882-

89). Finney had at least average intelligence, with good verbal

skills and good job skills, and he had been truthful in the

testing; there were no significant elevations observed in any of

the clinical scales (DA-R. V6/ 884, 889). In addition, Dr.

Gamache had spoken extensively to Tammy, and she corroborated

information about Finney’s background and his love for and

bonding with his daughter; Gamache observed that he would not

rely on an inmate’s self-serving statements in a clinical

evaluation (DA-R. V6/ 880, 890). Finney’s failure to allege how

the provision of additional information would have affected the

testimony presented at trial compelled summary rejection of this

claim.

Once again, Finney’s claim in this regard is factually

insufficient. LeCroy, 727 So. 2d at 239; Jackson, 633 So. 2d at

1054. On the facts of this case, the trial court’s summary

denial of this claim was proper.

42

Finney’s last allegation of ineffective assistance of

counsel disputes his attorney’s failure to retain a crime scene

expert to show "that the victim engaged in some form of sexual

activity" prior to her murder (Initial Brief of Appellant, p.

25). Once again, although he faults counsel for allegedly

failing to investigate, he characteristically fails to allege

any information or evidence that could have been discovered had

additional investigation been undertaken. He criticizes counsel

for failing to secure a crime scene expert without suggesting

what testimony such an expert could have provided or how this

could have affected the trial. His failure to allege specific

facts or to suggest how the outcome of his trial could have been

affected had the case been tried differently establishes that

again no claim worthy of an evidentiary hearing has been

offered. As in Ragsdale, "[Finney] has provided insufficient

facts as to what would have been introduced or how the outcome

would have been different had counsel acted otherwise" to obtain

an evidentiary hearing. 720 So. 2d at 208. Thus, the court

below properly summarily denied this allegation of guilt phase

ineffective assistance of counsel.

Similarly, no possible prejudice can be discerned from this

43

allegation of ineffective assistance of counsel. The evidence

against Finney was strong, and no reasonable claim of a

different verdict has been offered. No allegation of innocence

is submitted and no new theory of defense has been suggested.

Although Finney now criticizes his attorney’s alleged failure to

investigate, he never identifies what fruit may have been borne

of further investigation or how the outcome may have been

affected. In fact, Finney’s brief does not even present a

conclusory allegation of guilt phase prejudice with this issue.

Clearly, his claim in this regard is factually insufficient.

See, LeCroy, 727 So. 2d at 239 (noting defendant’s burden to

record and which demonstrate a deficiency on the part of counsel

that was detrimental to the defendant). The trial court’s

summary denial of this claim was proper.

cases in which registry counsel has been appointed by the trial

court pursuant to Section 27.710, Florida Statutes.

44

Finney’s next claim asserts that a remand is necessary

because the court below failed to comply with Section

the quality of postconviction representation. He alleges that

his pro se motion complaining of the adequacy of counsel was

denied without a hearing and that the facts of this case warrant

a remand for further postconviction proceedings as ordered by

this Court in Peede v. State, 748 So. 2d 253 (Fla. 1999), and

Fotopolous v. State, Case No. 91,277. He also notes that this

Court has provided relief to postconviction defendants due to

omissions by counsel in Williams v. State, 25 Fla. L. Weekly

S1069 (Fla. Nov. 22, 2000), and Steele v. Kehoe, 747 So. 2d 931

(Fla. 1999). Finally, he offers new versions of issues

previously pled below and in Issues II through VI of his

appellate brief which he claims compel further consideration in

the circuit court. As will be seen, neither the facts of this

case nor the authorities cited by Finney mandate a remand for

further proceedings.

The record on appeal reflects that the court below conducted

45

regular hearings to ensure that this case was properly

litigated. See, PC-R. V2/ 247-54 (Sept. 4, 1997, status

conference); PC-R. V2/ 255-58 (June 30, 1998, status

conference); PC-R. V2/ 259-62 (Nov. 16, 1998, status

conference); PC-R. V2/ 263-67 (Jan. 21, 1999, status conference,

dates set for filing postconviction motion, response, and Huff

hearing); PC-R. V2/ 268-71 (March 15, 1999, status conference);

PC-R. V2/ 272-98 (May 26, 1999, Huff hearing; evidentiary

hearing granted on Claim 1(B) and set for Aug. 21); PC-R. V2/

299-302 (June 16, 1999, defense motion to release samples

granted); PC-R. V2/ 303-08 (Aug. 30, 1999, granting continuance

of evidentiary hearing because samples not provided); PC-R. V2/

309-13 (Oct. 11, 1999, status conference); PC-R. V2/ 314-19

(Nov. 24, 1999, status conference, defense lab still working on

evidence; Finney’s pro se Motion for Appointment of Competent

Counsel heard and denied); PC-R. V2/ 320-23 (Dec. 20, 1999,

granting defense motion to compel Department of Corrections to

allow independent blood draw from Finney); PC-R. V2/ 324-30

(Jan. 24, 2000, status conference, still getting blood draw);

PC-R. V2/ 331-34 (April 4, 2000, status conference, still

waiting for lab results); PC-R. V2/ 335-40 (May 4, 2000, defense

withdraws prior DNA claim, court denies postconviction motion);

PC-R. V2/ 341-45 (May 17, 2000, denying motion for rehearing).

Finney’s pro se motion to dismiss Jack Crooks and secure the

X and XI, which were not raised in his postconviction motion,

but these are meritless claims which are routinely denied in

postconviction, and he does not attempt to explain why counsel

below should have included them in the postconviction motion.

46

appointment of other postconviction counsel was properly denied.

However, it must be noted initially that even if it should not

have been denied, it would be moot at this point and therefore

no basis for a remand since Finney is now represented by

different, and clearly competent, counsel. Current counsel

Joseph Hobson has had an opportunity to meet with Finney and to

review all of the records and transcripts in this case; if there

were additional issues that should have been litigated in the

postconviction motion filed below, he certainly could have

identified those issues in his initial brief. He has not

arguments on the claims raised below. Thus, any relief which

could be provided upon a remand -- specifically, the provision

of different postconviction counsel -- has already been afforded

to Finney, and any issue regarding the denial of his pro se

motion is moot.

Furthermore, the record in this case reflects that the pro

se motion was properly denied. The ruling on a motion to

dismiss court appointed counsel is within trial court’s

discretion, and therefore the standard of review is for an abuse

of discretion. Howell v. State, 707 So. 2d 674, 680 (Fla.

47

1998); Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973).

Although Finney analogizes his motion to one which requires a

hearing on the adequacy of counsel pursuant to Nelson, there are

obvious distinctions between Finney’s motion and the situation

addressed in Nelson. Most critically, a Nelson hearing is

required when a criminal defendant expresses dissatisfaction

with his appointed attorney as a way to ensure that the

constitutional right to counsel is not infringed by incompetent

representation. Of course, there is no constitutional right to

postconviction counsel, and as this Court has recognized, claims

of ineffective assistance of postconviction counsel do not

present a valid basis for relief. See, Lambrix v. State, 698

So. 2d 247, 248 (Fla. 1996), cert. denied, 522 U.S. 1122 (1998);

Murray v. Giarratano, 492 U.S. 1 (1989); Pennsylvania v.

Finley, 481 U.S. 551 (1987).

This principle has not been eviscerated by Peede v. State,

748 So. 2d 253 (Fla. 1999), or Fotopolous v. State, Case No.

91,277. Although Finney claims that Peede was remanded "for a

new 3.850 to be filed because of concerns [this Court] had with

the quality of postconviction counsel," (Initial Brief of

Appellant, p. 27), in fact a reading of Peede establishes that

the case was remanded for an evidentiary hearing, not a new

motion, because the prior motion warranted an evidentiary

hearing and should not have been summarily denied. Similarly,

48

in Fotopolous, this Court’s order (attached hereto as Ex. C)

does not indicate that the remand was occasioned by a finding of

ineffective assistance of postconviction counsel. In fact, the

remand order suggests that there were continuing, outstanding

public records issues to be addressed, suggesting the remand was

not entered due to ineffective assistance of counsel.

Finney’s reliance on Steele v. Kehoe, 747 So. 2d 931 (Fla.

1999), and Williams v. State, 25 Fla. L. Weekly S1069 (Fla. Nov.

22, 2000) to establish a right to relief premised on ineffective

assistance of postconviction counsel is also misplaced. In

those cases, this Court did not recognize any claim of

ineffective assistance of collateral counsel, but resolved the

issues presented on due process grounds. Those cases involved

defendants that had been denied the opportunity to pursue

initial postconviction remedies because their collateral

attorneys did not properly invoke the postconviction process.

The total deprivation of collateral review was a lack of process

that could not stand under the Fifth Amendment. Because Finney

has not been denied the process of postconviction review, his

case is markedly different than Steele, and Williams.

Thus, Finney’s suggestion that a lack of effective

assistance of collateral counsel may entitle a capital defendant

to another opportunity to present claims which reasonably should

have been presented in an initial motion for postconviction

49

relief is not persuasive. There is clearly no constitutional

right to collateral counsel, and therefore any alleged lack of

effective assistance of counsel in postconviction proceedings

cannot create any right to file a successive motion seeking

postconviction relief. See, Lambrix, 698 So. 2d at 248; Keeney

v. Tamayo-Reyes, 504 U.S. 1, 10, n. 5 (1992). However, even if

a capital defendant’s statutory right to counsel deserves the

protections afforded by Nelson and its progeny, the motion filed

below was insufficient to warrant a more extensive hearing than

that provided below.

The only specific complaint noted in the pro se motion was

the assertion that counsel’s intention to use pretrial DNA

samples from Finney was inadequate because of the belief that

tampering with those samples may have taken place (PC-R. V2/

199-206). This concern was obviously resolved when the defense,

within a couple of weeks, secured an independent blood draw from

Finney to use for comparison testing purposes (PC-R. V2/ 207-

211; V3/ 320-323). The other general allegations of

dissatisfaction with counsel included in the motion did not

require further consideration. See, Lowe v. State, 650 So. 2d

969, 975 (Fla. 1994) (merely generalized grievances are

insufficient to warrant dismissal of court appointed counsel);

Wilder v. State, 587 So. 2d 543, 545 (Fla. 1st DCA 1991)

(thorough inquiry required where defendant makes a "seemingly

50

substantial complaint" regarding counsel).

Finally, Finney does not attempt to establish how counsel’s

failure to raise any additional issues in his initial

postconviction motion could have prejudiced him. He certainly

has not identified any issues which he believes should have been

raised which could have made a difference in this case.

Although his appellate brief raises two claims (Issues X and XI)

which were never presented below, both of these claims can be

easily dismissed, since they are conclusory, standard

allegations of cumulative error and innocence of the death

penalty which this Court routinely rejects in postconviction

appeals.

Furthermore, current counsel for Finney has re-argued

several of the ineffective assistance of counsel issues which

were presented below, and even as now argued in the current

brief, the issues do not warrant an evidentiary hearing. Three

of these issues involve trial counsel’s failure to object to

prosecutorial comments and argument. Although these claims are

now padded with additional record citations, they continue to be

both procedurally barred since they are direct appeal issues

attempting to be relitigated under the guise of ineffective

assistance of counsel, as well as without merit because still no

prosecutorial impropriety is demonstrated.

Similarly, the newly re-argued claim that counsel was

51

ineffective for failing to present mitigation witnesses remains

facially insufficient. Although Finney has at least finally

provided some indication of additional mitigating evidence which

counsel did not present, this evidence is not compelling.

Finney notes that, as a child of three or four, he fell off a

rocking chair and received a scar on his head; that he suffered

from anemia; that in elementary school he had a reading problem

and exhibited a stubborn demeanor; that, as a teenager, his best

friend drowned, he was shot by a cousin, and he witnesses the

hit and run death of another cousin; and that, while in the

military, he handled coded military messages in Germany and

completed a training course in voice radio. In addition, Finney

notes that he developed a drug problem while in the military,

smoking hashish and marijuana and using heroin, for which he

never received professional counseling but did attend a

rehabilitation treatment program.

In light of the mitigating testimony that was presented at

trial, and considering the aggravated nature of the murder in

this case, none of this newly proffered evidence can be

considered substantial or compelling enough to possibly make a

difference. There was testimony presented at sentencing about

his military service, which took place in 1972-74 (DA-R. V6/

865, 875-76). Neither the fact that he may have briefly used

drugs nearly twenty years before the murder, nor his typical

52

childhood bumps and traumas, could have led to any different

result in this case. The cases previously cited in Issue V of

this brief continue to refute the need for any evidentiary

hearing on this claim.

Similarly, the new argument as to alleged ineffectiveness

for failure to provide adequate background information to the

mental health expert suffers the same flaws as the previous

argument -- there still is no identification of any particular

information that should have been provided, no allegation that

Dr. Gamache’s testimony as to Finney’s background was inaccurate

or incomplete, and no assertion as to how Dr. Gamache’s opinions

would change had further information been provided. Again, for

the reasons expressed in Issue VI of this brief, no evidentiary

hearing is warranted.

Finally, the argument that Finney’s postconviction counsel

was ineffective because he was "regrettably meek and nonchalant"

in arguing the motion for rehearing does not offer any basis for

relief. Finney’s current counsel does not even make a

conclusory showing of deficiency or prejudice in this claim.

Thus, Finney’s allegation that he was denied effective

assistance of counsel in the presentation of his motion for

postconviction relief must be rejected.

53

Finney’s next issue asserts that Florida’s death penalty

statute is unconstitutional on its face and as applied. This

issue is not cognizable on appeal; therefore, there is no

standard of review. This claim is both procedurally barred and

without merit, and was therefore properly summarily denied by

the court below. See, Hall v. State, 742 So. 2d 225, 226 (Fla.

1999); LeCroy, 727 So. 2d at 241, n. 11; Ragsdale, 720 So. 2d

at 204-205, n. 1, 2; Ziegler v. State, 452 So. 2d 537, 539 (Fla.

1984). To the extent that Finney is challenging Florida’s

lethal injection statute which did not exist at the time of his

resentencing, this Court has rejected his claim on the merits.

Sims v. State, 754 So. 2d 657 (Fla.), cert. denied, 120 S.Ct.

1233 (2000); Bryan v. State, 753 So. 2d 1244 (Fla.), cert.

denied, 120 S.Ct. 1236 (2000); Provenzano v. State, 761 So. 2d

1097 (Fla. 2000).

54

Finney’s claim that cumulative trial errors compel relief

was never presented to the trial court. This issue is not

cognizable in this appeal; therefore, there is no standard of

review. Since this issue was not included in his postconviction

motion, it is procedurally barred. See, Shere v. State, 742 So.

2d 215, 219, n. 9 (Fla. 1999); Doyle v. State, 526 So. 2d 909,

911 (Fla. 1988). In addition, since no showing of

constitutional error has been made with regard to any of the

claims currently or previously presented, no relief is

warranted. In the absence of any demonstrated errors, this

claim must be rejected as meritless. Downs v. State, 740 So. 2d

506, 509, n. 5, (Fla. 1999); Mendyk v. State, 592 So. 2d 1076,

1081 (Fla. 1992).

55

Finney’s last claim asserts that he is actually innocent of

the death penalty. This issue is not cognizable in this appeal;

therefore, there is no standard of review. Once again, this

issue is procedurally barred since it was not included in his

postconviction motion. Shere, 742 So. 2d at 219, n. 9; Doyle,

526 So. 2d at 911. Finney’s position seems to be that the

aggravating factors found by the trial court were all invalid,

and therefore death was not a proper sentence. His argument on

this issue is clearly procedurally barred, particularly since

this Court specifically upheld the applicability of each of the

three aggravating factors in his direct appeal, and expressly

found the sentence imposed in this case to be proportional.

Finney, 660 So. 2d at 680, 684-85. His current brief offers no

basis for reconsideration of the prior affirmance of his death

sentence, and no reasonable basis exists for a different result.

No relief is warranted on this claim.

56

Based on the foregoing arguments and authorities, the

summary denial of the appellant’s motion for postconviction

relief should be affirmed.

Respectfully submitted,

Assistant Attorney General

Florida Bar No. 0503843

2002 N. Lois Avenue, Suite 700

Tampa, Florida 33607-2366

(813) 801-0600

FAX (813) 356-1292

COUNSEL FOR APPELLEE

foregoing has been furnished by U.S. Regular Mail to Joseph T.

Hobson, Esq., Assistant Capital Collateral Regional Counsel -

Middle Region, 3801 Corporex Park Drive, Suite 210, Tampa,

Florida, 33619, this _____ day of April, 2001.

This brief is presented in 12 point Courier New, a font that

is not proportionately spaced.