677 F.3d 1117 (11th Cir. 2012), 09-15471, Morris v. Secretary, Dept. of Corrections

Docket Nº:09-15471.
Citation:677 F.3d 1117
Opinion Judge:MARCUS, Circuit Judge:
Party Name:Robert MORRIS, Petitioner-Appellant, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
Attorney:James Vincent Viggiano (Court-Appointed), Capital Collateral Regional Counsel, Tampa, FL, for Petitioner-Appellant. Scott Andrew Browne, Tampa, FL, for Respondent-Appellee.
Judge Panel:Before EDMONDSON, BARKETT and MARCUS, Circuit Judges.
Case Date:April 20, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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677 F.3d 1117 (11th Cir. 2012)

Robert MORRIS, Petitioner-Appellant,



No. 09-15471.

United States Court of Appeals, Eleventh Circuit.

April 20, 2012

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[Copyrighted Material Omitted]

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James Vincent Viggiano (Court-Appointed), Capital Collateral Regional Counsel, Tampa, FL, for Petitioner-Appellant.

Scott Andrew Browne, Tampa, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before EDMONDSON, BARKETT and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

Robert Morris was convicted in 1999 of first-degree murder, burglary of a dwelling, and robbery with a deadly weapon after the brutal killing of an 88-year-old woman in her Lakeland, Florida apartment. He was sentenced to death. After direct appeal and postconviction proceedings in state court, Morris filed his federal

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habeas petition, raising fourteen claims of trial court error and ineffective assistance of counsel. The district court denied the petition on all claims.

We have before us on appeal four of these claims: (1) the alleged ineffective assistance of counsel in excluding Morris from an unrecorded bench conference during the penalty phase of his trial; (2) the alleged ineffective assistance of counsel for failing to advise Morris of his right to testify at the penalty phase or to call Morris to testify at the penalty phase; (3) an alleged trial court error in concluding that Morris's past drug use was " not mitigating" ; and (4) cumulative error. After thorough review, we too conclude that Morris is not entitled to relief on any of these claims. Accordingly, we affirm the judgment of the district court and deny the petition.



The victim of this brutal murder, Violet Livingston, was 88 years old. Her body was found in her apartment by her son on the morning of September 2, 1994. When the police arrived, they found Livingston's body lying on the bedroom floor, with her head wrapped in bed sheets. The police found blood on the walls, some furniture, and the victim's walking cane.

The medical examiner who performed the autopsy, Dr. Alexander Melamud, testified at trial that the victim died as a result of multiple injuries. In particular, Dr. Melamud testified that the victim suffered " multiple bruises, lacerations, abrasions, rib fractures, subarachnoid hemorrhage of the brain and mechanical asphyxia due to suffocation." Dr. Melamud could not determine the order in which the injuries were inflicted, but opined that the victim was alive for a short period after the attack began.

The State presented four main categories of evidence against Morris. First, the State's DNA experts testified that Morris could not be excluded as the source of DNA obtained from two locations on the victim's body and from the victim's kitchen curtain. One of the State's experts testified that the frequency of the tested DNA pattern in the African-American database would be 1 in 7.1 million. The expert testified that this number meant that the likelihood of obtaining the DNA profile from an African-American other than Morris was between 1 out of 710,000 and 1 out of 71 million. Second, the police obtained eleven fingerprints of value from the crime scene, and one of them, from a lightbulb outside of the victim's apartment, was matched to Morris. Third, the police found in and around Morris's residence items known to have belonged to the victim, including coin wrappers, coin collection booklets, a coin sorter, and a small television. Finally, the State presented the testimony of Damion Sastre, who recounted a jailhouse confession to the murder by Morris. Sastre testified that Morris had told him about entering the victim's apartment, murdering the victim, and taking from the victim's apartment a small television, jewelry, old coins, and whatever money was around.

At the conclusion of the guilt phase, the jury convicted Morris of first-degree murder, armed burglary of a dwelling or battery committed during burglary of a dwelling, and robbery with a deadly weapon.


Morris's claims on appeal all relate to the penalty phase of his trial. The penalty phase was conducted before the jury on March 8-11, 1999. At the penalty phase, the State recalled Dr. Melamud, who testified

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that the victim sustained at least thirty-one bruises, abrasions, and lacerations, including defensive wounds. He further opined that the injuries would have caused pain while the victim was conscious. The State also called as victim impact witnesses the victim's two sons and two of her grandchildren.

Morris presented eleven lay witnesses at the penalty phase. He called several family members and family friends to testify to the unfortunate circumstances of his childhood, including poverty, neglect, physical and emotional abuse, and his mother's past substance abuse. The witnesses also testified about Morris's limited education, past drug use and addiction, and the positive role he has played in his family's life as an adult. Morris also called a clinical psychologist, Dr. Dee, who gave expert mental health testimony that Morris had a borderline to dull-normal IQ, that Morris developed an ulcer as a youth due to stress, and that Morris had abused drugs since childhood and was negatively affected by his troubled childhood. Although Morris testified at the guilt phase, he did not testify during the penalty phase.

At the conclusion of the penalty phase, the jury recommended death by a vote of 8 to 4. On April 30, 1999, the trial court sentenced Morris to death. The court found four aggravating factors, one statutory mitigating factor and numerous nonstatutory mitigating factors. The four aggravators were: (1) the crime was committed while Morris was on parole from a previous felony (robbery), Fla. Stat. § 921.141(5)(a), which the trial court accorded moderate weight; (2) Morris was previously convicted of a felony involving the use or threat of violence (robbery), id. § 921.141(5)(b), which the court accorded moderate weight; (3) the crime was committed for pecuniary gain, id. § 921.141(5)(f), which the court gave great weight; and (4) the crime was especially heinous, atrocious, or cruel, id. § 921.141(5)(h), which the court gave great weight.

The trial court also found the statutory mitigator that Morris had a substantially impaired capacity to conform his conduct to the requirements of law, id. § 921.141(6)(f), and gave this mitigator moderate weight. The court considered the following nonstatutory mitigators together: (1) Morris was born to a teenaged, unmarried mother; (2) Morris was physically and emotionally abused as a child; (3) Morris suffered neglect and physical deprivation as a child; (4) Morris's mother was a drug and alcohol abuser when Morris was a child; (5) Morris grew up in extreme poverty; (6) Morris witnessed the physical and sexual abuse of his mother and sisters; (7) Morris's father was absent for most of Morris's life; and (8) Morris's mother was arrested and had a criminal record while he was growing up. The court gave these mitigators great weight collectively.

The trial court also considered additional nonstatutory mitigators that it weighed individually. It considered the following characteristics regarding Morris: (1) borderline IQ (given little weight); (2) learning disabilities as a child (given little weight); (3) developed ulcers at a young age, reflecting extreme stress (given little weight); (4) use of alcohol and drugs at a young age and lifelong addiction problems (given little weight); (5) obtained high school diploma despite obstacles (given slight weight); (6) had loving protective relationships with family, including his daughter (given some weight); (7) adapts well to prison life (given little weight); (8) can continue to support, encourage, and nurture his family while incarcerated (given some weight); (9) a life sentence is sufficient (little weight); and (10) courtroom

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demeanor was superb (given some weight).

Of particular relevance to this appeal is finding (4) in the individual nonstatutory mitigators. The extent of the trial court's discussion of Morris's past drug use in its sentencing order is found in a section labeled " The defendant began using alcohol and drugs at an early age, and developed a lifelong addiction problem," and reads as follows:

Established and uncontroverted. That the defendant used drugs in the past is not mitigating. Moreover there is no evidence that he was using drugs in September, 1994 when he murdered Mrs. Livingston. This factor is entitled to little weight.

On February 21, 2002, the Florida Supreme Court affirmed Morris's conviction and sentence. Morris v. State, 811 So.2d 661 (Fla.2002) (" Morris I " ). Morris raised five issues, one of which is his present claim that the trial court erred by not considering his past drug use as mitigating evidence. The Florida Supreme Court rejected this claim. Quoting the entirety of the trial court's discussion in the sentencing order, the Florida Supreme Court first noted that the trial court had found established and uncontroverted the fact that Morris had a lifelong addiction to drugs and alcohol. The Florida Supreme Court agreed with Morris that past drug use and addiction are valid nonstatutory mitigators, and that the defendant need not be under the influence of drugs or alcohol at the time of the murder for this mitigating evidence to be weighed. Id. at 667 (citing Mahn v. State, 714 So.2d 391, 401 (Fla.1998)).

But the Florida Supreme Court then found that " [a]lthough the trial court's order on this point is confusing, it appears that the trial court did...

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