Arbelaez v. State

• Citation: 898 So.2d 25
• Decision Date: 27 January 2005
• Docket Number: No. SC03-1718., No. SC02-2284
• Parties: Guillermo Octavio ARBELAEZ, Appellant, v. STATE of Florida, Appellee. Guillermo Octavio Arbelaez, Petitioner, v. James V. Crosby, Jr., etc., Respondent.
• Court: United States State Supreme Court of Florida

898 So.2d 25

Guillermo Octavio ARBELAEZ, Appellant, v. STATE of Florida, Appellee.

Guillermo Octavio Arbelaez, Petitioner, v. James V. Crosby, Jr., etc., Respondent.

Nos. SC02-2284, SC03-1718.

Supreme Court of Florida.

January 27, 2005.

Rehearing Denied March 18, 2005.

Todd G. Scher, Special Assistant, Capital Collateral Regional Counsel, Miami, FL, and Marian Garcia Perez, Assistant CCRC-South, Fort Lauderdale, FL, for Appellant/Petitioner.

Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Leslie T. Campbell and Debra Rescigno, Assistant Attorneys General, West Palm Beach, FL, for Appellee/Respondent.

PER CURIAM.

Guillermo Octavio Arbelaez, a prisoner under sentence of death, appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 after an evidentiary hearing. Arbelaez also petitions this Court for a writ of habeas corpus. We have jurisdiction. See Art. V, §§ 3(b)(1), 3(b)(9), Fla. Const. For the reasons that follow, we affirm the denial of Arbelaez's postconviction motion and deny his petition for habeas corpus.

I. PROCEEDINGS TO DATE

Arbelaez was convicted in 1991 of first-degree murder and kidnapping in the death of Julio Rivas, the five-year-old son of his former girlfriend, Graciela Alfara. The child died on February 14, 1988, after being strangled and thrown off Key Biscayne's Powell Bridge into the water seventy feet below. The cause of death was asphyxia resulting from both strangulation and drowning. After committing the crime, Arbelaez fled to his family's home in Medellin, Colombia. He later returned to Florida, however, and gave full confessions on audiotape and videotape. Arbelaez admitted that, on the night before the murder, he saw his former girlfriend kissing another man. Deciding that "the best way to get to a woman is through her children," he murdered her son.

The jury at Arbelaez's trial recommended a death sentence by a vote of eleven to one. The trial court found three aggravating factors: the murder was committed in a cold, calculated, and premeditated manner (CCP) without any pretense of moral or legal justification; the murder was especially heinous, atrocious, or cruel (HAC); and the murder was committed during a kidnapping. The court also found one statutory mitigating factor (Arbelaez did not have a significant prior criminal history) and one nonstatutory mitigating factor (Arbelaez exhibited remorse). Agreeing with the jury's recommendation, the trial court sentenced Arbelaez to death.

On direct appeal, we affirmed both the convictions and the sentence. Arbelaez v. State, 626 So.2d 169, 178 (Fla.1993), cert. denied, 511 U.S. 1115, 114 S.Ct. 2123, 128 L.Ed.2d 678 (1994). After the United States Supreme Court denied his petition for a writ of certiorari, Arbelaez filed a motion for postconviction relief that, as amended, raised twenty-three claims. The trial court summarily denied all relief requested. On appeal, we affirmed the summary denial of all but one. Arbelaez v. State, 775 So.2d 909, 920 (Fla.2000). We concluded that "the trial court erred by failing to conduct an evidentiary hearing as to Arbelaez's claim that trial counsel was ineffective during the penalty phase of his trial for failing to present expert testimony as to his epilepsy and other mental health mitigation and for failing to introduce evidence of his family history of abuse." Id. at 912. The factual allegations that formed the basis of Arbelaez's ineffective assistance of counsel claim were summarized as follows:

Arbelaez contends that testimony was available to show that his life was marked by abuse and deprivation, that he suffered from a lifetime of drug abuse, and that he suffered from mental illness and epilepsy and tried repeatedly to commit suicide; yet no witnesses were called by trial counsel to present this testimony. Arbelaez further contends that trial counsel never had him examined by a competent mental health expert for purposes of presenting mitigation. He asserts that he has now been examined by mental health experts who have found that he suffers from organic brain damage and epilepsy; is mentally retarded; and has an IQ of 67.

Id. at 913. We concluded that, under Ragsdale v. State, 720 So.2d 203 (Fla.1998), Arbelaez had "stated sufficient allegations of mitigation to warrant an evidentiary hearing." Arbelaez, 775 So.2d at 913. We therefore reversed in part and remanded to the trial court for an evidentiary hearing on the one claim of ineffective assistance of counsel during the penalty phase.

On remand, Arbelaez filed a motion to disqualify the trial judge, which she denied as legally insufficient. The court then held the evidentiary hearing for which we had remanded the case. After considering post-hearing memoranda, the trial court denied relief. Just before the court entered its order, Arbelaez filed a supplemental motion under rule 3.850 arguing the applicability of the then-recent United States Supreme Court decisions in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). The trial court denied the supplemental claims as untimely and procedurally barred.

Arbelaez now appeals the trial court's order denying postconviction relief, as well as the denial of his supplemental Ring and Atkins claims and the denial of his motion to disqualify. He also petitions this Court for a writ of habeas corpus, raising five separate claims of ineffective assistance of appellate counsel. We examine each of Arbelaez's claims in turn.

II. INEFFECTIVE ASSISTANCE OF COUNSEL AT THE PENALTY PHASE

We remanded this case for an evidentiary hearing to determine whether Arbelaez's trial counsel, Reemberto Diaz, was ineffective during the penalty phase of trial in his investigation and presentation of mitigation evidence concerning three issues: (A) Arbelaez's epilepsy, (B) his "other mental health mitigation," including possible mental retardation, and (C) his "family history of abuse" in Colombia. Arbelaez, 775 So.2d at 912. The trial court denied relief on all three issues.

We have repeatedly held that to establish a claim of ineffective assistance of trial counsel, a defendant must prove two elements:

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. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Valle v. State, 778 So.2d 960, 965 (Fla.2001) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In Valle, we further explained:

In evaluating whether an attorney's conduct is deficient, "there is `a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,'" and the defendant "bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." This Court has held that defense counsel's strategic choices do not constitute deficient conduct if alternative courses of action have been considered and rejected. Moreover, "[t]o establish prejudice [a defendant] `must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " Id. at 965-66 (citations omitted) (quoting Brown v. State, 755 So.2d 616, 628 (Fla.2000), and Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)).

After an evidentiary hearing on a claim of ineffective assistance of counsel, we review the deficiency and prejudice prongs as "mixed questions of law and fact subject to a de novo review standard but ... the trial court's factual findings are to be given deference. So long as the [trial court's] decisions are supported by competent, substantial evidence, this Court will not substitute its judgment for that of the trial court on questions of fact and, likewise, on the credibility of the witnesses and the weight to be given to the evidence." Sochor v. State, 883 So.2d 766, 781 (Fla.2004) (quoting Porter v. State, 788 So.2d 917, 923 (Fla.2001)) (emphasis omitted). Applying this standard of review, we affirm the trial court's decision to deny relief to Arbelaez as to all three issues. We discuss each in turn.

A. Epilepsy

Arbelaez argues that his counsel was ineffective during the penalty phase in presenting evidence of his epilepsy. During the penalty phase, counsel presented three witnesses to testify about Arbelaez's problems with epilepsy. Two lay witnesses testified that they had observed Arbelaez taking epileptic medication. One of them, Adelfa Salazar, described a few "very strong" epileptic seizures he had suffered in her presence. Dr. Raul Lopez, a neurologist, testified that he treated Arbelaez for an epileptic seizure in 1984, four years before the murder. He deemed it "very likely" that Arbelaez had suffered from epilepsy since birth. He testified that, as a youth, Arbelaez had been treated in Colombia with Mysoline, an "anticonvulsion medication" used to prevent epileptic episodes. He testified that two other epilepsy medications, Dilantin and Depakote, were prescribed for Arbelaez after the 1984 incident, but that at times Arbelaez "was not taking his medications as instructed." Dr. Lopez testified that he received...