BOLIN v. State of Fla.

• Decision Date: 01 July 2010
• Docket Number: No. SC08-1963.,SC08-1963.
• Parties: Oscar Ray BOLIN, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

41 So.3d 151

Oscar Ray BOLIN, Jr., Appellant, v. STATE of Florida, Appellee.

No. SC08-1963.

Supreme Court of Florida.

July 1, 2010.

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Robert A. Norgard and Andrea Norgard of Norgard and Norgard, Bartow, FL, for Appellant.

Bill McCollum, Attorney General, Tallahassee, FL, Stephen D. Ake and Katherine Maria Diamandis, Assistant Attorneys General, Tampa, FL, for Appellee.

PER CURIAM.

This case is before the Court on appeal from an order denying a motion to vacate a judgment of conviction of first-degree murder and a sentence of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a capital conviction for which a sentence of death was imposed, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution.

FACTS

Teri Lynn Matthews'¹ body was discovered on December 5, 1986, near the side of a road in rural Pasco County. Bolin v. State, 869 So.2d 1196, 1198 (Fla.2004). Her wet body was wrapped in a sheet imprinted with a St. Joseph's Hospital logo, and had multiple head injuries. Id. There was a single set of tire tracks leading to her body. Id. Matthews' car keys were found near her body, but her car was found the next day parked at the Land O'Lakes Post Office. Id. Her purse was found untouched in her car and her mail was found scattered nearby on the ground. Id.

Matthews' murder remained unsolved until July 1990, when Danny Coby, of Indiana, telephoned "Crime Stoppers" and reported that he had received information from his wife, Cheryl Coby, regarding the murder of another of Bolin's victims, Stephanie Collins. Following this call, the investigators interviewed Cheryl Coby about the Collins murder, which led them to question Philip Bolin about Matthews.

Bolin was convicted and sentenced to death for Matthews' murder in 1992, but that conviction was overturned by this Court because improper evidence was admitted at trial. Bolin v. State, 650 So.2d 19 (Fla.1995) (concluding that the trial court erred in finding waiver of spousal privilege based on defendant's deposition of ex-wife). On remand, Bolin was convicted and again sentenced to death, which this Court also overturned based on the abuse of discretion by the trial court for denying Bolin's motion for individual voir dire of prospective jurors on the issue of pretrial publicity. Bolin v. State, 736 So.2d 1160, 1161 (Fla.1999).

At the third trial, Bolin's half-brother, Phillip Bolin, testified that Bolin awakened him on the night of December 4, 1986, to help him move the body. Bolin, 869 So.2d at 1198. Phillip Bolin testified that he saw a sheet-wrapped body and that Bolin told him that the girl was shot near the Land O'Lakes Post Office. Phillip testified that Bolin straddled the body and struck it several times with a metal-tipped wooden stick. Bolin then turned on a water hose and sprayed the body. Bolin was convicted and sentenced to death a third time. Id. at 1199. Bolin waived presentation of mitigation and waived having a jury advisory proceeding. Id. at 1199. After the trial court found that Bolin's waiver was knowing, voluntary, and intelligent, the penalty phase proceeded without a jury. In an abundance of caution, the trial court followed Muhammad² guidelines and found three aggravating factors,³ one statutory mitigating factor,⁴ and twelve nonstatutory mitigating factors.⁵Bolin, 869 So.2d at 1200. Bolin was sentenced to death.

On direct appeal, Bolin raised five issues: (1) whether the trial court erred in denying Bolin's challenges for cause, (2) whether the court abused its discretion by replacing juror Cox, who had chronic emphysema, with an alternate juror, (3) whether the court erred by allowing expert DNA testimony that there was a "match" in the bands of the semen and blood samples, (4) whether Bolin was entitled to a new trial because the record did not reflect whether the prospective jurors were sworn prior to voir dire, and (5) whether the court erred by accepting Bolin's waiver of a penalty phase jury recommendation. Although not raised by Bolin, this Court also considered whether Bolin's conviction was supported by sufficient evidence and whether Bolin's sentence was proportionate. This Court affirmed Bolin's conviction and sentence.

Bolin filed his motion for postconviction relief on October 3, 2005. The court held an evidentiary hearing in several sessions beginning on November 16, 2006, and concluding on November 26, 2007. Bolin raised seven claims: five claims of ineffective assistance of counsel,⁶ one claim of cumulative error, and one claim that his due process rights were violated when he was forced to file his motion prior to receiving documents requested from the Federal Bureau of Investigation. Bolin decided not to pursue the two claims relating to Michelle Steen, and the court denied the remaining claims. Bolin now appeals, raising two claims of ineffective assistance of counsel.

ANALYSIS

Following the United States Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:

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.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citations omitted).

Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court's factual findings that are supported by competent, substantial evidence, but reviewing the circuit court's legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).

There is a strong presumption that trial counsel's performance was not ineffective. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. "A fair assessment of attorney 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." Id. at 689, 104 S.Ct. 2052. The defendant carries the burden to "overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). "Judicial scrutiny of counsel's performance must be highly deferential." Id. In Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000), this Court held that "strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct."

Testimony of Danny Ferns

First, Bolin alleges that trial counsel was ineffective for failing to object to the descriptive use of what appeared to be blood in Danny Ferns' testimony. Below, the Sixth Circuit Court in and for Pasco County, Florida, denied Bolin's first claim, stating:

Although there may be other ways to say it, the witness probably could not accurately convey to the jury that the substance looked like blood without using the word blood. Had Ferns simply said that he saw a red substance, it would not have conveyed the essence of what he observed. An intelligent person with some degree of experience may testify as a lay witness to what they observe. See Jones v. State, 440 So.2d 570 (Fla.1983), citing Peacock v. State, 160 So.2d 541 (Fla. 1st DCA 1964). In this case, the witness testified that he observed blood. See Trial Transcript, pp. 874-875 "that a tablecloth found lying on the bed `appeared like someone had taken some type of object that had blood on it and wiped it on there and left it on the bed.'" Id. at 1231. We upheld the testimony as proper and "within the permissible range of lay observation and ordinary police experience." Id. at 1232.

Additionally, there are cases where lay witnesses have mentioned blood in their testimonies that have been upheld by this Court and the district courts of appeal. See Smith v. State, 7 So.3d 473, 489 (Fla. 2009) (witness testified that he helped to clean up blood after he witnessed a shooting); Thorp v. State, 777 So.2d 385, 388 (Fla.2000) (an employee of the mission where defendant was staying testified that he saw Thorp with blood on his shirt); Davis v. State, 586 So.2d 1038, 1040 (Fla. 1991) (witness testified that she discovered the victim lying in pool of blood), vacated on other grounds, 505 U.S. 1216, 112 S.Ct. 3021, 120 L.Ed.2d 893 (1992) (vacated and remanded for consideration in light of Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992)); Moody v. State, 418 So.2d 989, 991 (Fla.1982) (a witness who had been living with Moody in a Volkswagen saw a puddle of blood on the victim's floor); King v. State, 390 So.2d 315, 317 (Fla.1980) (a counselor at the facility where King was incarcerated saw that the crotch of King's pants was covered in blood), receded from on other grounds by, Strickland v. State, 437 So.2d 150 (Fla.1983); Bartlett v. State, 993 So.2d 157, 159 (Fla. 1st DCA 2008) (witness testified to there being a substance that appeared to be blood on one of two knives). Additionally, in Rose v. State, 617 So.2d 291 (Fla.1993), the defendant raised a similar issue on...