Branch v. State

• Decision Date: 31 August 2006
• Docket Number: No. SC05-433.,No. SC05-1558.,SC05-1558.,SC05-433.
• Citation: 952 So.2d 470
• Parties: Eric Scott BRANCH, Appellant, v. STATE of Florida, Appellee. Eric Scott Branch, Petitioner, v. James R. McDonough, etc., Respondent.
• Court: Florida Supreme Court

952 So.2d 470

Eric Scott BRANCH, Appellant, v. STATE of Florida, Appellee.

Eric Scott Branch, Petitioner, v. James R. McDonough, etc., Respondent.

No. SC05-1558.

No. SC05-433.

Supreme Court of Florida.

August 31, 2006.

Rehearing Denied March 12, 2007.

Michael P. Reiter, Tallahassee, FL, for Appellant/Petitioner.

Charles J. Crist, Jr., Attorney General, and Cassandra K. Dolgin, Assistant Attorney General, Tallahassee, FL, for Appellee/Respondent.

PER CURIAM.

Eric Scott Branch, a prisoner under a sentence of death for a conviction of first-degree murder, appeals an order of the circuit court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. After review, we affirm the denial of relief and deny the petition for writ of habeas corpus.

FACTS AND PROCEDURAL HISTORY

The underlying facts of the case are set out in this Court's decision in Branch's direct appeal:

Eric Branch was wanted by police in Indiana and because the car he was driving, a Pontiac, could be traced to him, he decided to steal a car from the campus of the University of West Florida in Pensacola. When Susan Morris, a young college student, approached her car after attending an evening class, January 11, 1993, Branch accosted her and stole her red Toyota. Morris's nude body was found later in nearby woods; she had been beaten, stomped, sexually assaulted and strangled. She bore numerous bruises and lacerations, both eyes were swollen shut, and a wooden stick was broken off in her vagina. Branch was arrested several days later in Indiana and charged with first-degree murder, sexual battery, and grand theft.

Evidence introduced at trial showed the following: On the night of the murder, a friend saw Branch with a cut hand, which Branch said he had gotten in a bar fight; that same night, Branch was seen on campus wearing a pair of black and white checkered shorts and driving a "smallish red vehicle"; Branch was sighted in Bowling Green, Kentucky, two days later, and Morris's car was recovered the next day in a parking lot there; when Branch was arrested, he had in his possession a pair of black and white checkered shorts stained with his own blood; a bloodstain matching Morris was found on the back of the passenger seat of the red Toyota; when Branch's Pontiac was discovered abandoned in the Pensacola airport parking lot, "medium velocity splatter" bloodstains matching Morris's DNA profile were found on boots and socks inside. Branch testified on his own behalf and was convicted as charged.

Branch v. State, 685 So.2d 1250, 1251-52 (Fla.1996). Branch was convicted by a jury of first-degree murder, sexual battery, and grand theft. The jury returned a death recommendation on the first-degree murder count by a vote of ten to two. The trial court sentenced Branch to death for the murder count, and imposed a life sentence for the sexual battery conviction and five years' incarceration for the grand theft charge. This Court found no error and affirmed Branch's conviction and sentence. Id. at 1253. Branch's petition for writ of certiorari to the United States Supreme Court was denied on May 12, 1997. Branch v. Florida, 520 U.S. 1218, 117 S.Ct. 1709, 137 L.Ed.2d 833 (1997).

Branch filed a shell motion for postconviction relief on May 7, 1998, in order to toll the time periods for federal habeas corpus relief. Subsequently, on April 1, 2003, Branch filed his second amended motion to vacate judgment of conviction, raising fourteen claims for relief.¹ At the Huff² hearing on December 8, 2003, the trial court determined that an evidentiary hearing would be held on claims (1), (2), and (3) of the petition. Following the evidentiary hearing, the circuit court denied all claims.³

RULE 3.850 APPEAL

Branch argues in this appeal that the postconviction court was in error in not finding that (1) trial counsel was ineffective for failing to file a motion to suppress the items taken from the Pontiac; (2) trial counsel was ineffective for failing to investigate and present sufficient mitigation evidence during the penalty phase; (3) trial counsel was ineffective for failing to hire experts; (4) trial counsel was ineffective for failing to object to the introduction of the abstract of judgment during the penalty phase; (5) trial counsel was ineffective for failing to impeach witnesses; (6) trial counsel was ineffective for failing to investigate for the guilt phase; (7) trial counsel was ineffective for failing to object at the guilt and penalty phases; (8) Branch's Indiana conviction was not a felony under Florida law in order to establish the prior violent felony aggravating circumstance; (9) Branch was entitled to relief based on cumulative error.

Ineffective Assistance of Counsel Claims

In accordance with 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 two elements must be met in order for ineffective assistance of counsel claims to be successful: (1) the claimant must identify particular acts or omissions of the lawyer that are outside of the broad range of reasonably competent performance under prevailing professional standards and (2) the deficiency shown must be demonstrated to have so affected the proceeding that confidence in the outcome is undermined. See, e.g., Lott v. State, 931 So.2d 807, 815 (Fla.2006); Miller v. State, 926 So.2d 1243, 1249 (Fla.2006).

Motion to Suppress

Initially, Branch contends that trial counsel was ineffective for not filing a motion to suppress evidence seized from the Pontiac Bonneville—a vehicle belonging to Branch's family in Indiana—that Branch had been driving in Florida. The trial court denied relief and articulated the facts set out in the police affidavit upon which a search warrant for the vehicle was issued:

1. Susan Morris was reported missing on January 12, 1993;

2. Later that afternoon, the defendant was reported driving Miss Morris's vehicle by his brother, Robert Branch;

3. The defendant had previously been driving the 1982 Pontiac Bonneville in question;

4. That Branch was a fugitive from charges out of Evansville, Indiana, and was also wanted by the Bay County Sheriff's Office for charges of Sexual Battery;

5. Presumably on the afternoon of January 12, 1993, Florida Department of Law Enforcement was dispatched to the Pensacola Airport to investigate an identification of the Pontiac Bonneville in question;

6. The FDLE officer confirmed the identification of the Bonneville and observed that the rear end of the vehicle appeared lower to the ground than the front, consistent with weight being in the trunk;

7. The FDLE officer opened the trunk to determine whether it contained Miss Morris;

8. Miss Morris was not in the trunk;

9. The Bonneville was sealed and transported to the Escambia County Sheriff's Office where it was stored in a secure garage;

10. The only reference to items inside the vehicle prior to the issuance of the search warrant was the sentence "there appeared to be suitcases and clothing throughout the vehicle";

11. Around 5:00 p.m. January 13, 1993, Susan Morris's body was found unclothed and crudely covered with woodland debris; and

12. FDLE believed that evidence existed in the car, to wit: "trace evidence including human blood, hair, fiber, fingerprints, and other trace evidence."

The trial court then explained:

In the instant case, an investigation was clearly ongoing at the time the car had been seized. The trunk had been opened in search of the victim. Although the car was moved to a secure garage, there has been no evidence presented to this Court that it was further searched prior to the issuance of the warrant—beyond the notation of "suitcases and clothing throughout the vehicle" which were presumably in plain view. There certainly was probable cause to support the issuance of the search warrant, which was applied for only a day or two after the car was seized. There is no evidence that the car would have been removed from that lot by the Defendant, who was on the run in Miss Morris' car at the time. The police's alleged misconduct—the seizure of the car—did not provide them with any extra evidence that was obtained without a valid search warrant.

The evidence before the Court does not, under a preponderance of the evidence standard, demonstrate that a motion to suppress had the slightest probability of success. The Court does not find persuasive Public Defender Loveless' testimony that he "would expect" to have filed motions to suppress the evidence in question. It was ultimately Mr. Allbritton's opinion that there was not a sufficient legal basis to file such a motion. Based on the testimony given at the evidentiary hearing, the Court's independent review of the record regarding this issue, and the lack of viable substantive evidence to support the defense's allegation, the Court finds that the Defendant has not overcome the strong presumption that counsel provided effective representation regarding this issue. Counsel cannot be ineffective for failing to file a motion which would have been properly denied.

We find no error in the trial court's analysis and we can add little to it.

Branch asserts that his trial counsel, John Allbritton, should have filed a motion to suppress the evidence seized from the Pontiac. Allbritton testified at the evidentiary hearing that he did not believe that there was a sufficient basis for challenging the search and seizure of the Pontiac. Essentially, the trial court found that the circumstances that existed at the time supported both the legality of the seizure and search of the vehicle and defense counsel's opinion that there was no valid basis upon which to challenge the search and seizure.⁴ Based on the foregoing circumstances, we conclude that Branch has not demonstrated that ...