Breedlove v. State, 80161

Decision Date13 March 1997
Docket NumberNo. 80161,80161
Citation692 So.2d 874
Parties22 Fla. L. Weekly S130 McArthur BREEDLOVE, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Michael J. Minerva, Capital Collateral Representative; Gail E. Anderson, Assistant CCR and Todd G. Scher, Assistant CCR, Office of the Capital Collateral Representative, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General and Randall Sutton, Assistant Attorney General, Miami, for Appellee.

PER CURIAM.

We have on appeal the judgment of the trial court denying McArthur Breedlove, an inmate under sentence of death, relief requested pursuant to rule 3.850, Florida Rules of Criminal Procedure. We have jurisdiction. Art. V, § 3(b)(1), (9), Fla. Const. For the reasons expressed, we affirm the trial court's order denying Breedlove's postconviction motion.

This case has a long history of appellate and postconviction proceedings beginning in 1979 when a jury convicted Breedlove of first-degree murder for stabbing a man to death during a residential burglary. The trial court sentenced him to death, and this Court affirmed. Breedlove v. State, 413 So.2d 1 (Fla.), cert. denied, 459 U.S. 882, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982). Breedlove filed a 3.850 motion with the trial court. After a death warrant was signed, the trial court stayed Breedlove's execution pending resolution of the 3.850 motion. The trial court summarily denied the 3.850 motion, and this Court affirmed. Breedlove v. State, 580 So.2d 605 (Fla.1991). After Breedlove's second death warrant was signed, he filed a second 3.850 motion, which the trial court summarily denied. Breedlove appealed the denial and filed a petition for writ of habeas corpus. This Court denied the petition and found untimely the claims Breedlove raised in his 3.850 motion. Breedlove v. Singletary, 595 So.2d 8 (Fla.1992).

However, in our decision in 1992, we specifically noted and held:

Breedlove was represented by the public defender's office both at his trial and during his first rule 3.850 proceeding. Therefore, that office was unable to assert a claim of ineffective assistance of trial counsel. Adams v. State, 380 So.2d 421 (Fla.1980). On the peculiar facts of this case, we choose to overlook the procedural default as it relates to claims of ineffective assistance of counsel.

Breedlove, 595 So.2d at 11. 1

Therefore, in light of the public defender's conflicting roles, we reversed the trial court's summary denial with regard to Breedlove's allegations of ineffective assistance of counsel at the penalty phase, stayed Breedlove's pending execution, and remanded for an evidentiary hearing. Breedlove, 595 So.2d at 12. We noted in our opinion that the State primarily argued that Breedlove had failed to demonstrate that prejudice resulted even if his counsel was ineffective. We did not believe that this issue of prejudice could be resolved without a hearing. The trial court held the evidentiary hearing in 1992 and issued an order denying relief; thereafter, Breedlove filed this appeal.

During this appeal of his second 3.850 motion, Breedlove filed in the trial court a rule 3.850 motion on the basis of Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). Breedlove argued that at his original trial, the judge erred when he refused to grant Breedlove's request for an expanded jury instruction for the "heinous, atrocious, or cruel" (HAC) aggravating factor. Breedlove then filed with this Court a motion to hold in abeyance the appeal of his second 3.850 motion. We granted that motion and stayed all proceedings pending disposition of Breedlove's third 3.850 motion. The trial court, after an evidentiary hearing, granted Breedlove's third 3.850 motion on the basis that an expanded HAC instruction should have been given and the court could not determine beyond a reasonable doubt whether the jury would have recommended the death penalty had an expanded instruction been given. The court ordered a new sentencing hearing, and the State appealed this granting of Breedlove's third 3.850 motion. We then reviewed the third 3.850 motion based upon the Espinosa claim. We reversed, determining from our review of the record that the failure to give the requested instruction on HAC was harmless error. State v. Breedlove, 655 So.2d 74 (Fla.), cert. denied, --- U.S. ----, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995).

This brings us to this determination of the appeal of Breedlove's second 3.850 motion containing his claim of ineffective assistance of counsel at the penalty phase. The record of the 1992 evidentiary hearing reflects that assistant public defenders David Finger and Jay Levine were initially assigned to represent Breedlove on his first-degree murder charge. After Breedlove made a statement to the police contrary to the advice of his attorneys, Finger and Levine withdrew from the case; and Eugene Zenobi, their supervisor and the public defender division chief, took over. About two weeks before the trial, Zenobi asked Levine to assist him by reentering the case as "second chair." After the guilt-phase verdict was returned, Zenobi assigned Levine to represent Breedlove during the penalty proceeding. The guilt-phase verdict was returned on a Friday afternoon, and the penalty phase began the following Monday morning.

At the postconviction hearing, the court heard testimony from the three assistant public defenders who represented Breedlove, from family members and friends of Breedlove, from three psychologists who had examined Breedlove for the defense, and from a psychiatrist who had testified for the State. Finger and Levine testified that Levine was hampered in preparing for the penalty phase by the trial court's denial of a time extension between the end of the guilt phase and the beginning of the penalty phase. Levine testified that he had never before handled representation in a first-degree murder trial. Levine further testified that because the responsibility for the penalty phase was "thrust upon [him] on a Friday afternoon," the resulting lack of preparation caused him to "not present effective assistance of counsel." This confession of ineffectiveness because of lack of preparation was somewhat contradicted by the record, which reflects evidence that Levine had handled the representation of Breedlove in motions directed to the penalty phase in advance of the trial. In addition, Zenobi testified that he had been present during the penalty phase and that Levine was an excellent lawyer. 2

Of the three psychologists who testified for the defense at the postconviction hearing, only two had testified at the original penalty phase. Both of those psychologists testified that even with the additional information provided to them in preparation for the postconviction hearing, the opinions to which each had testified at the penalty phase would have been the same. The third psychologist the defense presented at the postconviction hearing had examined Breedlove shortly before the hearing and also had reviewed background information concerning Breedlove. This psychologist testified that Breedlove had longstanding mental health impairments and that in the psychologist's opinion, they existed at the time of the offense in 1978. This third psychologist further testified that he did not agree with the opinions expressed by psychologists who had testified at the penalty phase on behalf of the State and that he doubted that those opinions could have been formed reliably based on information the State psychologists had at the time they expressed their opinions. At the postconviction hearing, the State presented the testimony of a psychiatrist who had testified at the penalty phase. The psychiatrist testified that his opinion expressed in 1979 that Breedlove was a sociopath and that Breedlove was not under extreme mental duress or influence at the time of the offense would be the same as his opinion expressed at the postconviction hearing. The defense had presented a psychiatrist's testimony at the penalty phase, but he was not a witness at the postconviction hearing.

None of the friends and family members who testified at the postconviction hearing had testified at the penalty phase. These lay witnesses testified that Breedlove's father had beaten Breedlove often during his childhood, that Breedlove's mother was an alcoholic, and that Breedlove was addicted to drugs and exhibited violent behavioral changes when he was on drugs. On cross-examination, the State presented evidence that Breedlove's father had been and still was a hard-working man, that some of Breedlove's siblings were gainfully employed and had been convicted of no crimes, and that Breedlove previously had been convicted of two rapes in California and a murder and a burglary in Broward County, Florida.

The trial court in the postconviction hearing applied both prongs of the ineffectiveness-of-counsel test from Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in addressing Breedlove's claim that his counsel was ineffective during the penalty phase. As to the first prong, deficient performance by the attorney, the court found that Levine was not deficient in any way in representing Breedlove during the penalty phase. The court also addressed the second prong as to prejudice resulting from the attorney's performance. Regarding this second prong, ...

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