Atwater v. State

• Decision Date: 07 June 2001
• Docket Number: No. SC99-179., No. SC94865
• Citation: 788 So.2d 223
• Parties: Jeffrey Lee ATWATER, Appellant, v. STATE of Florida, Appellee. Jeffrey Lee Atwater, Petitioner, v. Michael W. Moore, etc., et al., Respondents.
• Court: Florida Supreme Court

788 So.2d 223

Jeffrey Lee ATWATER, Appellant, v. STATE of Florida, Appellee.

Jeffrey Lee Atwater, Petitioner, v. Michael W. Moore, etc., et al., Respondents.

Nos. SC94865, SC99-179.

Supreme Court of Florida.

June 7, 2001.

Mark S. Gruber, Assistant CCRC, Capital Collateral Regional Counsel—Middle, Tampa, FL, for Appellant/Petitioner.

Robert A. Butterworth, Attorney General, and Candance M. Sabella, Assistant Attorney General, Tampa, FL, for Appellee/Respondent.

PER CURIAM.

Jeffrey Lee Atwater, a prisoner under sentence of death, appeals an order entered by the trial court denying his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850; he also petitions this Court for a writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(1), (9) Fla. Const. These cases have been consolidated. We affirm the trial court's denial of 3.850 relief, and we deny habeas relief.

STATEMENT OF THE CASE AND FACTS

The following is a statement of the facts that appears in Atwater v. State, 626 So.2d 1325, 1327 (Fla.1993):

On August 11, 1989, Atwater entered the John Knox Apartments in St. Petersburg, Florida, to see Ken Smith, the victim in this case. Upon entering the apartment building, Atwater proceeded to Smith's room where he remained for about twenty minutes. After Atwater left, Smith's body was discovered in the room. Smith was dead and his money was missing. Atwater told several people that he had killed Smith. Atwater was arrested the same day for killing Smith. At trial, he was convicted of first-degree murder and robbery. The jury recommended death by a vote of eleven to one. The trial judge found three aggravating factors and no statutory mitigating factors. The judge held that the aggravators outweighed the mitigators and sentenced Atwater to death.

On appeal, this Court affirmed the convictions and sentence of death. Atwater timely filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He raised twenty-four claims. After a Huff¹ hearing, the trial court summarily denied all but two² of Atwater's claims. After an evidentiary hearing on the two remaining claims, however, the trial court denied those two claims as well.³

Atwater now appeals the denial of all the claims in his initial 3.850 motion and petitions separately for a writ of habeas corpus.

In the petition for writ of habeas corpus, Atwater alleges: (1) The trial court gave a nonstandard Enmund/Tison⁴ jury instruction in the penalty phase and appellate counsel was ineffective in failing to raise this issue; (2) Atwater's sentence rests upon an unconstitutionally automatic aggravating circumstance; (3) Atwater's rights were denied by the judge and jury's consideration of nonstatutory aggravating circumstances. Appellate counsel rendered ineffective assistance by failing to raise this claim; (4) Electrocution is cruel and unusual punishment; (5) No reliable transcript of Atwater's trial exists, and reliable appellate review was and is not possible, and there is no way to ensure that which occurred in the trial court was or can be reviewed on appeal, so the judgment and sentence must be vacated.

The petition for writ of habeas corpus is hereby denied. Claims 1 and 2 are not proper claims for habeas corpus relief. "[H]abeas corpus petitions are not to be used for additional appeals on questions which could have been, should have been, or were raised on appeal or in a rule 3.850 motion, or on matters that were not objected to at trial." Parker v. Dugger, 550 So.2d 459, 460 (Fla.1989). As to the substance of claim 2, this Court rejected this argument in Hudson v. State, 708 So.2d 256 (Fla.1998), and Blanco v. State, 706 So.2d 7 (Fla.1997). Claims 3, 4, and 5 were also raised in Atwater's motion for postconviction relief and are procedurally barred as well. See Parker, 550 So.2d 459

. As for the claims of ineffective assistance of appellate counsel raised in claims 1 and 3, these claims are without merit. See Harvey v. Dugger, 650 So.2d 982 (Fla. 1995); Ferguson v. Singletary, 632 So.2d 53 (Fla.1993); Scott v. Dugger, 604 So.2d 465, 469 (Fla.1992) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

Atwater's claims on appeal from the denial of his 3.850 motion are paraphrased as follows: (1) Atwater's trial counsel was ineffective because counsel conceded guilt without Atwater's consent; (2) The trial court erred in denying Atwater a hearing on his claim that he was denied effective assistance of counsel in the penalty phase of the trial; (3) Judgment must be vacated because no reliable transcript of Atwater's trial exists and reliable appellate review is and was not possible; (4) Trial counsel was ineffective because the state elicited false and misleading evidence and expert testimony from FBI agents; (5) The trial court erred in allowing the prosecutor to elicit opinion testimony regarding blood spatter evidence from unqualified witnesses; (6) The CCP aggravator is unconstitutionally vague and the jury was improperly instructed on this aggravator; (7) The State failed to reveal that it made promises of lenient treatment to witnesses; (8) The trial court erred in improperly failing to find the statutory mitigator of no significant criminal history; (9) The trial court failed to ensure Atwater's presence during critical stages of the proceedings and Atwater was prejudiced thereby; (10) The State failed to prove each and every element of the offenses charged; (11) Atwater's guilt phase jury instructions were erroneous, unreliable and unsupported by the evidence; (12) The jury and judge improperly considered nonstatutory aggravating circumstances: the prosecutor's inflammatory and improper comments and arguments; (13) Trial counsel was ineffective during voir dire; (14) Atwater's sentence rests upon unconstitutionally automatic aggravating circumstances; (15) The trial court violated the Eighth Amendment by failing to find and weigh the mitigating circumstances in the record; (16) Florida's capital sentencing statute is unconstitutional on its face and as applied because it fails to prevent the arbitrary and capricious imposition of the death penalty; (17) Atwater was denied effective assistance of counsel at the pre-trial phase of his trial; (18) The errors at trial were not harmless when viewed as a whole; (19) Atwater was denied the right to an individualized sentencing when the court submitted to the jury during deliberations a copy of a death penalty sentencing outline designed as a judicial tool to assist the courts in conducting a penalty phase trial; (20) Atwater was denied effective assistance of counsel at pre-trial and the guilt phase when the defense attorney failed to object to the introduction of gruesome and shocking autopsy photos; (21) Atwater is innocent of first degree and second-degree murder and was denied adversarial testing due to ineffective assistance of counsel; (22) Atwater was denied effective assistance of counsel at pretrial and guilt phase of his trial because a full adversarial testing did not occur and counsel's performance was deficient.

We only discuss claims 1 and 2 of the 3.850 motion.⁵ We begin our analysis with the general proposition that a defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient. See, e.g., Maharaj v. State, 684 So.2d 726 (Fla.1996)

; Anderson v. State, 627 So.2d 1170 (Fla. 1993); Hoffman v. State, 571 So.2d 449 (Fla.1990); Holland v. State, 503 So.2d 1250 (Fla.1987); Lemon v. State, 498 So.2d 923 (Fla.1986); Fla. R.Crim. P. 3.850. The defendant bears the burden of establishing a prima facie case based upon a legally valid claim. Mere conclusory allegations are not sufficient to meet this burden. See Kennedy v. State, 547 So.2d 912 (Fla.1989). However, in cases where there has been no evidentiary hearing, we must accept the factual allegations made by the defendant to the extent that they are not refuted by the record. See Peede v. State, 748 So.2d 253 (Fla.1999); Valle v. State, 705 So.2d 1331 (Fla.1997). We must examine each claim to determine if it is legally sufficient, and, if so, determine whether or not the claim is refuted by the record.

Generally, when a defendant alleges ineffective assistance of counsel, he must establish the two prongs necessary to demonstrate ineffectiveness as outlined by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), specifically:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. 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.

466 U.S. at 687, 104 S.Ct. 2052. In reviewing counsel's performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.

In claim 1 of his motion for post-conviction relief, Atwater argues that during closing arguments, his counsel forcefully argued in favor of second-degree murder, displayed gruesome crime scene photographs to the jury, argued the crime was one of malice, and rejected any consideration of...