Lusk v. State, 67335
| Decision Date | 26 November 1986 |
| Docket Number | No. 67335,67335 |
| Parties | 11 Fla. L. Weekly 615 Bobby Earl LUSK, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Richard Ware Levitt, New York City, for appellant.
Jim Smith, Atty. Gen., and Mark C. Menser and John W. Tiedemann, Asst. Attys. Gen., Tallahassee, for appellee.
Appellant, while an inmate at Florida State Prison in 1978, stabbed to death another inmate, Michael Hall, during Thanksgiving Day lunch and in front of numerous witnesses. A jury convicted appellant of first-degree murder and recommended a life sentence. The trial court, however, overrode the jury and imposed a sentence of death. We affirmed the conviction and sentence in Lusk v. State, 446 So.2d 1038 (Fla.), cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984). This appeal is from the trial court's denial, following an evidentiary hearing, of post-conviction relief, pursuant to Rule of Criminal Procedure 3.850. We have jurisdiction, article V, section 3(b)(1), Florida Constitution. We affirm.
The only issue raised by appellant which warrants discussion is that he received ineffective assistance of counsel at the guilt and penalty phases of his trial. As set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the proper standard for reviewing counsel's performance is whether a defendant received "reasonably effective assistance." Id. at 687, 104 S.Ct. at 2064. In order to determine whether counsel's performance fell below the level of reasonably effective assistance, the Court developed a two-part test:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. In order to satisfy the first component of this test, a convicted defendant must identify acts or omissions of counsel that were not the result of reasonable professional judgment. Courts reviewing ineffectiveness claims must "determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. at 690, 104 S.Ct. at 2066. We find that under the facts presented, appellant has failed to satisfy this first component.
Employing the Strickland analysis requires us to evaluate the challenged conduct from "counsel's perspective at the time." Id. at 689, 104 S.Ct. at 2065. At the time of appellant's trial, his counsel was faced with defending a prisoner who was serving three consecutive life terms for two convictions of armed robbery and a simultaneous conviction for first-degree murder. Appellant fatally stabbed a fellow inmate, Hall, three times in the back in the Florida State Prison cafeteria during the Thanksgiving Day noon meal; this killing was witnessed by numerous inmates and prison personnel. There was evidence which showed that the victim Hall and two other inmates had robbed appellant in his cell the morning of the murder and had threatened reprisals against appellant if he reported the attack. Trial counsel testified at the hearing below that he understood the overwhelming evidence against his client and therefore felt his primary purpose was to save his client's life. 1 Accordingly, at trial the defense strategy was one of self-defense; appellant testified that Hall had threatened to "take him out" and that Hall attacked him first with a knife of his own.
In the motion for post-conviction relief and as presented at the evidentiary hearing thereon, appellant alleged that trial counsel's reliance during the guilt phase on the "all or nothing" strategy of self-defense was, under the facts confronting counsel, such an unreasonable choice that it fell outside the wide range of competent assistance. According to this theory, trial counsel was faced with defending a client who, if convicted of first-degree murder, would then be faced at sentencing with at least two "automatic" aggravating factors, i.e., committed while under sentence of imprisonment; and, previous conviction of another capital felony. Therefore, as it was the sole job of trial counsel to save his client's life, and conviction of a lesser degree of homicide would, in practical effect, be as advantageous as an acquittal, trial counsel's failure to pursue another defense was simply unreasonable. According to appellant's expert who testified below, the defense that should have been presented was that set forth in Forehand v. State, 126 Fla. 464, 171 So. 241 (1936). In Forehand we held that a "dominating passion" operates to exclude premeditation and reduces a first-degree homicide to a lesser degree of murder or manslaughter. Under appellant's theory, trial counsel should have presented this defense based on the following facts: The victim, Hall, was serving a thirty-year sentence for the "sexually related, gang torture murder" of an inmate at another prison; appellant's well-grounded fear that reporting Hall's threats to prison officials would only increase the danger to appellant; the prison officials inability or unwillingness to protect inmates from other inmates; and appellant's "exemplary" behavioral record at Florida State Prison prior to his encounters with Hall. 2
The issue before us is whether trial counsel's decision to rely solely on a theory of self-defense was so unreasonable as to fall outside the wide range of professionally competent assistance. Mindful that "[e]ven the best criminal defense attorneys would not defend a particular client in the same way," 466 U.S. at 689, 104 S.Ct. at 2065, we must conclude that trial counsel's decision to rely on self-defense here was a strategic choice which did not fall outside the acceptable range of competent choices. Considering all the circumstances facing trial counsel initially, self-defense was arguably the only viable choice: Appellant and others were willing to testify about Hall's threats towards appellant, including the robbery incident occurring the morning of the murder; Hall's violent character was brought out at trial and his nickname of "Yard Dog" was explained to the jury to mean an inmate gang leader. While it may have been desirable, as appellant now suggests, to have introduced, during the guilt phase, Hall's conviction for murdering...
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