Bruno v. State

• Citation: 807 So.2d 55
• Decision Date: 06 December 2001
• Docket Number: No. SC92223.,SC92223.
• Parties: Michael G. BRUNO, Sr., Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

807 So.2d 55

Michael G. BRUNO, Sr., Appellant, v. STATE of Florida, Appellee.

No. SC92223.

Supreme Court of Florida.

December 6, 2001.

Rehearing Denied February 5, 2002.

Todd G. Scher, Litigation Director, Office of the Capital Collateral Regional Counsel-South, Fort Lauderdale, FL, for Appellant.

Robert A. Butterworth, Attorney General, and Sara D. Baggett and Kenneth S. Nunnelley, Assistant Attorneys General, Daytona Beach, FL, for Appellee.

PER CURIAM.

Michael J. Bruno, under sentence of death, appeals the denial of relief following an evidentiary hearing on his first motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm the denial of relief.

I. FACTS

The facts of the crime are set out fully in the Court's opinion on direct appeal.¹ On August 8, 1986, appellant Michael Bruno and his fifteen-year-old son, Michael Jr., were in the apartment of a friend, Lionel Merlano, when Bruno beat Merlano with a crowbar. Bruno then sent Michael Jr. elsewhere in the apartment to fetch a handgun and, when the boy returned with a gun, Bruno shot Merlano twice in the head. Bruno was arrested several days later and gave a taped statement wherein he at first denied any knowledge of the murder but then later admitted committing the crime, claiming it was self-defense. Michael Jr. also gave a full statement to police. Prior to being arrested, Bruno made numerous inculpatory statements to friends concerning both his plan to commit the murder and the commission of the crime itself. Police found the gun in a canal where a friend, Jody Spalding, saw Bruno throw it.

Bruno was charged with first-degree murder and robbery (he stole a stereo from the apartment after the murder) and his strategy at trial was to raise a reasonable doubt in jurors' minds by claiming that Jody Spalding was the killer. He was convicted as charged, and the judge followed the jury's eight-to-four vote and imposed a sentence of death based on three aggravating circumstances² and no mitigating circumstances. This Court affirmed. Bruno filed the present rule 3.850 motion³ and the trial court conducted an evidentiary hearing at which Bruno presented six witnesses⁴ and the State presented one witness.⁵ The trial court denied the motion. Bruno appeals, raising four issues.⁶

II. INEFFECTIVE ASSISTANCE OF COUNSEL

In issue number one, Bruno argues that the trial court erred in denying his postconviction claims concerning alleged ineffective assistance of counsel. The test to be applied by the trial court when evaluating an ineffectiveness claim is two-pronged: The defendant must show both that trial counsel's performance was deficient and that the defendant was prejudiced by the deficiency.⁷ The standard of review for a trial court's ruling on an ineffectiveness claim also is two-pronged: The appellate court must defer to the trial court's findings on factual issues but must review the court's ultimate conclusions on the deficiency and prejudice prongs de novo.⁸

In his brief before this Court, Bruno asserts several instances of ineffectiveness.⁹ We address each of the subclaims in turn. In subclaim two,¹⁰ Bruno contends that defense counsel was ineffective during the trial due to alcohol and drug impairments. Bruno points to the previous hospitalization of trial counsel for drug and alcohol use. Private counsel was retained in August 1986 to represent Bruno. Over the next few months, counsel developed a drinking problem and, when he was drinking, would occasionally use cocaine. He enrolled in Alcoholics Anonymous on October 15, 1986, and remained alcohol and drug free from then until March 1987, when he began drinking again but not using cocaine. He admitted himself into a hospital on March 15, 1987, for his drinking problem, remained hospitalized for twenty-eight days, and subsequently remained alcohol and drug-free. After being released, counsel apprised both Bruno and the court of his problem and offered to withdraw, but Bruno asked him to continue as counsel. The trial, which originally had been set for March 30, 1987, was rescheduled for August 5, 1987, and began on that date. Counsel testified at the evidentiary hearing below that he never was under the influence of alcohol or drugs while working on this case. The trial court concluded that Bruno "failed to meet his burden of demonstrating how [counsel's] drug and alcohol usage prior to trial rendered ineffective his legal representation to the Defendant and how such conduct prejudiced the Defendant." We agree.

In subclaim three, Bruno asserts that there was an irreconcilable conflict between Bruno and counsel. Bruno argues that defense counsel repeatedly divulged confidential and damaging information to the trial court. One example of this alleged conflict concerns statements made by defense counsel at the close of the State's case during the guilt phase. Defense counsel informed the trial court that Bruno wanted to testify and present witnesses against counsel's advice. Defense counsel told the court that he believed the witnesses would be detrimental to his case. Defense counsel added that he advised Bruno to take a plea in this case. The trial court told Bruno that he had the right to testify, but that if he chose not to, he would instruct the jury not to infer anything from it. The trial court also told Bruno that by presenting witnesses, he would lose first and last closing arguments. The defense ultimately rested its case without the presentation of witnesses.

Another example of the alleged conflict of interest relates to comments made by defense counsel during the penalty phase. The comments were made in response to Dr. Stillman's testimony that Bruno was insane at the time of the offense. Shortly after Dr. Stillman's testimony, defense counsel requested a side-bar conference and told the trial court that he was surprised by the testimony, as Dr. Stillman had previously informed defense counsel that Bruno was sane at the time of the offense. At the evidentiary hearing below, defense counsel explained that he conveyed his surprise to the court in order to justify his subsequent motion for an additional psychological examination.

The trial court concluded that this claim was barred because it either was, or could have been, raised on direct appeal. This was error. Whereas the main question on direct appeal is whether the trial court erred,¹¹ the main question in a Strickland claim is whether trial counsel was ineffective.¹² Both claims may arise from the same underlying facts, but the claims themselves are distinct and—of necessity —have different remedies: A claim of trial court error generally can be raised on direct appeal but not in a rule 3.850 motion,¹³ and a claim of ineffectiveness generally can be raised in a rule 3.850 motion but not on direct appeal.¹⁴ A defendant thus has little choice: As a rule, he or she can only raise an ineffectiveness claim via a rule 3.850 motion, even if the same underlying facts also supported, or could have supported, a claim of error on direct appeal. Thus, the trial court erred in concluding that Bruno's claim was procedurally barred. Despite ruling that claim three was procedurally barred, the trial court proceeded to address the claim on the merits:

This motion was filed by [defense counsel], after Dr. Stillman testified at the penalty phase, that because of drug and alcohol usage, that the Defendant was not sane at the time the offense was committed. [Defense counsel] indicated to the trial judge that this testimony took him by surprise, because Dr. Stillman was examining the Defendant to render an expert opinion as to possible mental mitigating circumstances, not whether he was sane at the time the crime was committed. [Defense counsel] told the trial judge that prior to Dr. Stillman's testimony, that he had no reason to believe that the Defendant was not competent to stand trial or was insane at the time the offense was committed. [Defense counsel] testified that he explained his surprise to Judge Coker, in order to justify his subsequent motion for an additional psychological examination.

. . . .

This Court does not find that there is any evidence of a "conflict of interest" between [defense counsel] and the Defendant, or that the Defendant was prejudiced by [defense counsel]'s statements to the Trial Judge. [Defense counsel]'s statements to the Trial Judge were made as a justification for his seeking leave of court to file a belated notice of intent to rely on an insanity defense, pursuant to rule 3.216(f). The evidentiary hearing revealed that [defense counsel] was having difficulty with the Defendant as to whether the Defendant should or should not testify, and whether certain alibi witnesses who lacked credibility should be called to testify by the defense. The testimony of [defense counsel] does not reflect a lack of preparation, but reflect his conflicts with the Defendant as to the conduct of the trial. [Defense counsel] stated that he advised the Defendant that "strategy wise," he would be better off not testifying. [Defense counsel] felt that the witnesses which the Defendant wanted to call were not credible, and would result in the loss of first and last closing argument by the defense. [Defense counsel] testified that he had strongly recommended to the Defendant that he take a plea in the case, which advice the Defendant elected to reject. [Defense counsel]'s statements to the trial judge did not amount to a "conflict of interest," but was an effort to seek the trial court's help with a client who constantly refused to cooperate with his defense counsel's trial preparations.

The Defendant has failed to show that he was prejudiced by [defense counsel]'s statements to the trial judge.

Ultimately, the trial court concluded that Bruno failed both prongs of the Strickland test. We agree.

In subclaim four, Bruno argues that...