Bertolotti v. State, 71432

• Decision Date: 07 April 1988
• Docket Number: No. 71432,71432
• Citation: 534 So.2d 386,13 Fla. L. Weekly 253
• Parties: 13 Fla. L. Weekly 253 Anthony BERTOLOTTI, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 386

534 So.2d 386

13 Fla. L. Weekly 253

Anthony BERTOLOTTI, Appellant, v. STATE of Florida, Appellee.

No. 71432.

Supreme Court of Florida.

April 7, 1988.

Rehearing Denied Dec. 28, 1988.

Larry Helm Spalding, Capital Collateral Representative, Mark Evan Olive, Chief Asst. CCR, and Nicholas Trenticosta, Staff Atty., Office of the Capital Collateral Representative, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Margene A. Roper and Sean Daly, Asst. Attys. Gen., Daytona Beach, for appellee.

PER CURIAM.

Anthony Bertolotti, a prisoner under sentence of death and execution warrant, appeals the trial court's denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief, which was filed by the Capital Collateral Representative. We have jurisdiction, article V, section 3(b)(1), Florida Constitution, and affirm the order denying relief.

Bertolotti's conviction of first-degree murder and sentence of death were affirmed by this Court in Bertolotti v. State, 476 So.2d 130 (Fla.1985). The pertinent facts surrounding the murder as set forth in that opinion are as follows:

Bertolotti was arrested for and charged with first-degree murder in the death of Carol Miller Ward. The victim's body was discovered in her home by her husband when he returned from work. She had been repeatedly stabbed with two knives; she was naked from the waist down and medical tests showed intercourse had taken place, though there was no evidence of physical trauma to the vaginal area; she had been strangled and beaten.

Id. at 131. This Court recently denied his petition for a writ of habeas corpus, based on claims of ineffective assistance of appellate counsel. Bertolotti v. Dugger, 514 So.2d 1095 (Fla.1987).

In his rule 3.850 motion to the trial court Bertolotti raised five claims: (1) trial counsel provided ineffective assistance by offering no defense to first-degree felony murder; (2) trial counsel were ineffective for failing to provide competent mental health assistance for the defendant when the only defense offered at trial was mental health based; (3) Bertolotti was denied a meaningful and individualized capital sentencing determination due to his lawyers' unreasonable failure to conduct a thorough, independent investigation and failure to present compelling statutory and nonstatutory mitigation factors; ¹ (4) the prosecutor and trial judge misinformed and thus impermissibly diminished the jurors' understanding of the importance of their role and responsibility in the sentencing pursuant to Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); ² and (5) because of the overlap of statutory aggravating circumstances with the elements of the offense, his death sentence violates the eighth and fourteenth amendments of the United States Constitution. ³

After a four-day hearing, the trial judge found that in connection with the ineffective assistance of trial counsel claims (1) Bertolotti had failed to show that his lawyers' performance was unreasonable or (2) that there was a reasonable probability that the results of either the guilt or penalty phase proceedings would have been different but for the alleged substandard performance as required under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The court correctly noted that in evaluating whether a lawyer's performance falls outside the wide range of professionally competent assistance "courts are required to (a) make every effort to eliminate the distorting effects of hindsight by evaluating the performance from counsel's perspective at the time, and (b) indulge a strong presumption that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment with the burden on claimant to show otherwise." Quoting Blanco v. Wainwright, 507 So.2d 1377, 1381 (Fla.1987).

First, we address Bertolotti's claim that his lawyers were ineffective for failing (1) to raise the defense of voluntary intoxication to the specific-intent crimes of premeditated murder, robbery and burglary and (2) to request a jury instruction on intoxication during the guilt phase of the trial. At trial the only evidence of intoxication was a statement made by Bertolotti in his first confession to police that at the time of the murder he was "high" on a Quaalude he bought from a friend. The trial court correctly determined that such a "self-serving declaration" made during a confession, which was unsupported by independent testimony or evidence and was specifically contradicted at trial, was insufficient to warrant the giving of an intoxication instruction. See Cirack v. State, 201 So.2d 706 (Fla.1967) (self-serving statements of intoxication alone provide no basis for expert testimony as to whether a defendant was able to distinguish right and wrong at the time of the murder). An instruction on intoxication is only warranted when there is sufficient evidence of intoxication. Gardner v. State, 480 So.2d 91 (Fla.1985). The record also supports the trial court's conclusion that "on the facts of this case there simply was no reasonable defense of intoxication." Trial counsel were not deficient for failing to raise a defense which was unreasonable under the circumstances or for failing to request an instruction which was not warranted by the evidence. His lawyers' decision to present a "reasonable doubt" defense to the underlying felonies of robbery, sexual battery and burglary was reasonable under the circumstances.

We next address Bertolotti's claim that his lawyers were ineffective for failing to have him evaluated by a mental health expert. In connection with this claim Bertolotti contends that such an evaluation would have revealed insanity at the time of the murder and confession as well as provided mitigating evidence to be used during the penalty phase.

Although six months prior to trial a motion for psychiatric examination was granted and Dr. Pollack was appointed to examine Bertolotti, arrangements were never made to have him examined until the morning of the sentencing hearing, at which time Bertolotti refused to see Dr. Pollack. At the rule 3.850 motion hearing, Bertolotti's lawyers at trial, Peter Kenny and Clyde Wolfe, testified that in hindsight they probably should have had him evaluated by Dr. Pollack prior to trial and certainly would do so if they were currently handling his defense. Chan Muller, a legal expert for the defense, testified that under the circumstances Bertolotti's lawyers were deficient for failing to have Bertolotti evaluated. The trial court gave little weight to Mr. Muller's testimony, "as he had not read the trial transcript; did not talk to the defendant; ... did not talk to defense counsel as to strategy ... [and] seems to feel the intervention of mental health experts is always required whether it is merited by the facts of the case or not." The trial judge also noted that in critiquing their own performance, defense counsel allowed the "distorting effects of hindsight" to play a part in their self evaluation, by measuring their performance "to a large extent, not from their perspective at the time or reasonable practices at the time, but from their present perspective of reasonable assistance imparted to them largely from the allegations of the 3.850 motion itself and sophisticated seminar strategies which they now glean as mandatory practice." The trial court concluded that since defense counsel had no reason to doubt Bertolotti's sanity, they were not deficient for failing to follow through with an evaluation which was requested "on the advice of a public defender who routinely filed them with the intent that if it became apparent that it was needed, they would not have to ask for it later."

While mental condition is not necessarily an issue in every criminal proceeding, Blanco v. Wainwright, 507 So.2d at 1383, where there is evidence calling into question a defendant's sanity, defense counsel is bound to seek the assistance of a mental health expert. See Bush v. Wainwright, 505 So.2d 409 (Fla.), cert. denied, 484 U.S. 873, 108 S.Ct. 209, 98 L.Ed.2d 160 (1987); see also Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). As recognized by the United States Supreme Court, where a defendant's mental condition is in question, "without the assistance of a mental health expert ... the risk of an inaccurate resolution of sanity issues is extremely high." 105 S.Ct. at 1096. The trial court's conclusion that defense counsel "had no reason to doubt Bertolotti's sanity in any respect" is not supported by the testimony and other evidence adduced at the 3.850 hearing. Considering only those factors which the public defender's office was aware of prior to trial, it is apparent that defense counsel had reason to question Bertolotti's sanity at the time of the offense.

Mr. DuRocher, the elected Public Defender of the Ninth Judicial Circuit who assigned the case to assistant public defenders Mr. Wolfe and Mr. Kenny, testified that he first met with and interviewed Bertolotti after Bertolotti's arrest in October 1983. When asked whether as a result of this interview he had formed an opinion with regard to whether a mental evaluation of Bertolotti should be conducted, Mr. DuRocher responded that "I certainly had signals about issues of competence and sanity.... [Y]es, all the signals were there. You had to--he should have been evaluated." According to his testimony, a number of factors led Mr. DuRocher to question Bertolotti's mental condition. First, during the interview Bertolotti, who had already given a statement to the police, was in a highly "emotional state," breaking down and "weeping and sobbing" as he recited the facts of the murder. The "bizarre, inherently unbelievable" story Bertolotti told Mr. DuRocher also served as a "signal." Another strong indicator that mental state at the time of the crime...