Barwick v. State

• Citation: 88 So.3d 85
• Decision Date: 07 May 2012
• Docket Number: SC08–1377.,Nos. SC07–1831,s. SC07–1831
• Parties: Darryl Brian BARWICK, Appellant, v. STATE of Florida, Appellee. Darryl Brian Barwick, Petitioner, v. Edwin G. Buss, etc., Respondent.
• Court: United States State Supreme Court of Florida

88 So.3d 85

Darryl Brian BARWICK, Appellant,

v.STATE of Florida, Appellee.

Darryl Brian Barwick, Petitioner,

v.Edwin G. Buss, etc., Respondent.

Nos. SC07–1831, SC08–1377.

Supreme Court of Florida.

June 30, 2011.

Rehearing Denied May 7, 2012.

D. Todd Doss, Lake City, FL, for Appellant/Petitioner.

Pamela Jo Bondi, Attorney General, and Meredith Charbula, Assistant Attorney General, Tallahassee, FL, for Appellee/Respondent.

PER CURIAM.

Darryl Barwick appeals the circuit court's denial of his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851, and petitions this Court for a writ of habeas corpus. We have jurisdiction. Seeart. V, § 3(b)(1), (9), Fla. Const. As discussed below, we affirm the circuit court's judgment and deny Barwick's habeas petition.

I. FACTS AND PROCEDURAL HISTORY

Barwick was indicted on April 28, 1986, on charges of first-degree murder, armed burglary, attempted sexual battery, and armed robbery. A jury found him guilty as charged. The facts underlying the convictions, as summarized by the Court on direct appeal, are as follows:

On the morning of March 31, 1986, Michael Ann Wendt left her apartment in Panama City to travel to Fort Walton Beach. Rebecca Wendt, Michael Ann's sister and roommate, remained at the apartment complex and lay outside sunbathing until approximately 11:45 a.m. Another resident of the complex who was also outside sunbathing observed a man walking around the complex at about 12:30 p.m. The witness indicated that she saw the man walk toward the Wendts' apartment and later walk from the Wendts' apartment into the woods. She subsequently identified that man as Darryl Barwick.

On the evening of March 31, Michael Ann returned to the apartment and found Rebecca's body in the bathroom wrapped in a comforter. Investigators called to the scene observed bloody footprints at various places throughout the apartment and bloody fingerprints on the victim's purse and wallet. Rebecca's bathing suit had been displaced, and she had been stabbed numerous times. An autopsy revealed that she sustained thirty-seven stab wounds on her upper body as well as a number of defensive wounds on her hands. The medical examiner concluded that the potentially life-threatening wounds were those to the neck, chest, and abdomen and that death would have occurred within three to ten minutes of the first stab wound. The examiner found no evidence of sexual contact with the victim, but a crime laboratory analyst found a semen stain on the comforter wrapped around the victim's body. After conducting tests on the semen and Barwick's blood, the analyst determined that Barwick was within two percent of the population who could have left the stain.

When initially questioned by investigators, Barwick denied any involvement in Rebecca's murder. However, following his arrest on April 15, 1986, he confessed to committing the crime. He said that after observing Rebecca sunbathing, he returned to his home, parked his car, got a knife from his house, and walked back to the apartment complex where he had previously observed Rebecca. After walking past her three times, he followed her into her apartment. Barwick claimed he only intended to steal something, but when Rebecca resisted, he lost control and stabbed her. According to Barwick, he continued to stab Rebecca as the two struggled and fell to the floor.

Barwick v. State, 660 So.2d 685, 688 (Fla.1995) (footnote omitted).

By a vote of nine to three, the jury recommended that Barwick be sentenced to death. The trial court followed the jury's recommendation in imposing a death sentence for the murder conviction. On direct appeal, the Court reversed Barwick's convictions, vacated his sentences, and remanded for a new trial due to an error that occurred during jury selection. Barwick v. State, 547 So.2d 612 (Fla.1989).¹

Upon retrial, and represented by a different attorney, Barwick was again convicted as charged.² The jury unanimously recommended that Barwick be sentenced to death. In following the jury's recommendation, the trial court found six aggravating circumstances ³ and no mitigating circumstances. The trial court sentenced Barwick on the noncapital offenses to two life terms and one thirty-year term.

On direct appeal following retrial, Barwick raised five claims pertaining to the guilt phase of his retrial ⁴ and nine claims pertaining to the penalty phase.⁵ While agreeing with Barwick that the trial court erred in finding the CCP aggravating circumstance, the Court found the error to be harmless and affirmed the convictions and sentences on July 20, 1995. Barwick, 660 So.2d at 697.

On March 17, 1997, Barwick filed an initial motion for postconviction relief in the circuit court; Barwick's amended motion, filed on August 26, 2002, raised twenty-one claims.⁶ Following a Huff⁷ hearing, in an order dated December 4, 2003, the circuit court granted an evidentiary hearing on four of Barwick's claims,⁸ reserved ruling on the claim of cumulative error, and summarily denied the remainder of his claims. In a second amended motion for postconviction relief, Barwick realleged the original twenty-one claims and raised two additional claims, which the circuit court summarily denied on September 8, 2005.⁹

An evidentiary hearing was held on November 2 and 3, 2006; Barwick and the State each presented two witnesses.¹⁰ The circuit court issued its final order on August 28, 2007, denying Barwick's rule 3.851 motion. Barwick raises eleven claims on appeal from the denial of postconviction relief,¹¹ and has also filed a petition for writ of habeas corpus, raising nine claims.¹²

II. MOTION FOR POSTCONVICTION RELIEF

A. Ineffective Assistance of Trial Counsel

Claims of ineffective assistance of trial counsel, whether directed at the guilt or penalty phase of trial, must satisfy two requirements:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.

Ferrell v. State, 29 So.3d 959, 969 (Fla.2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986)). Review of counsel's performance “requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Heath v. State, 3 So.3d 1017, 1027 (Fla.2009) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

The prejudice prong of the two-part test presents the issue of whether the specific deficiency in counsel's performance rises to the level that there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Hutchinson v. State, 17 So.3d 696, 700 (Fla.2009) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

1. Failure to Challenge Bay County Circuit Court's Jury Qualification Procedure

Barwick contends that his constitutional rights were violated based upon the general jury qualification procedure of the Bay County Circuit Court. Barwick identifies the following facts in support of his claim: (1) the general jury qualification is held outside the presence of both the defendant and his attorney; (2) the State is allowed to participate in the proceeding; and (3) the proceeding is not recorded. Barwick argues that these facts distinguish his case from the Court's prior decisions holding that the general juror qualification procedure does not constitute a critical stage in the proceedings. See Wright v. State, 688 So.2d 298, 301 (Fla.1996). Barwick further argues that the lack of a record of the jury qualification proceeding in this case, in conjunction with the destruction of all records relating to the jury pool before his conviction became final, denied him a right to a proper appeal. According to Barwick, under the circumstances of his case, he is entitled to a new trial.

Barwick did not raise this claim on direct appeal; therefore, the claim is procedurally barred. Orme v. State, 896 So.2d 725, 737 (Fla.2005); Gorby v. State, 819 So.2d 664, 674 & n. 8 (Fla.2002). Moreover, even if reviewable, Barwick's claim would be denied as a matter of law. Barwick did not establish the facts he relies upon to distinguish his case from the Court's prior decisions on the issue; in fact, testimony from the evidentiary hearing refutes the alleged factual distinctions. See Orme, 896 So.2d at 737. Finally, cases cited by Barwick, including Delap v. State, 350 So.2d 462 (Fla.1977), and Blalock v. Rice, 707 So.2d 738 (Fla. 2d DCA 1997), are distinguishable. Unlike Barwick's case, a new trial was warranted in the cases he relies on because a full transcript of a critical stage or stages at trial was unavailable thereby precluding complete appellate review. We affirm the circuit court's denial of relief.

2. Failure to Effectively Cross–Examine State's Witness Suzanna Capers¹³

At trial, State's witness Suzanna Capers identified Barwick as the man she saw walking around the apartment complex where both she and Ms. Wendt lived, staring at Ms. Capers, and then walking towards Ms. Wendt's apartment. Barwick argues that trial counsel's cross-examination of the witness was ineffective, having failed to (1) bring out the fact that it was only after extremely...