Burns v. State, SC01-166.

• Decision Date: 02 November 2006
• Docket Number: No. SC01-166.,SC01-166.
• Parties: Daniel BURNS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

944 So.2d 234

Daniel BURNS, Appellant, v. STATE of Florida, Appellee.

No. SC01-166.

Supreme Court of Florida.

November 2, 2006.

COPYRIGHT MATERIAL OMITTED

John William Jennings, Capital Collateral Regional Counsel—Middle Region, Eric Pinkard and David Robert Gemmer, Assistant CCR Counsel, Tampa, FL, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, Florida and Carol M. Dittmar, Senior Assistant Attorney General, Tampa, FL, for Appellee.

PER CURIAM.

Daniel Burns appeals an order of the circuit court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and an order concluding that he is not mentally retarded. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. As explained below, we affirm the circuit court's denial of Burns' postconviction motion and the order on mental retardation.

I. FACTS AND PROCEDURAL HISTORY

Burns was convicted of first-degree murder and cocaine trafficking, and the judge imposed the death sentence following a unanimous jury recommendation of death. The underlying facts were set out by this Court:

[On August 18, 1987, a] police officer stopped Burns and his companion Samuel Williams as the two were traveling north on Interstate 75. The officer asked the two men for identification and then returned to his vehicle to use the radio. A highway patrol dispatcher confirmed that the officer requested a "persons' check" and a registration check on the tag of the vehicle in which Burns and Williams were traveling. The officer then walked back to Burns and Williams and asked if he could search their vehicle. While searching the trunk, he discovered what appeared to be cocaine. A struggle between the officer and Burns ensued. Williams and several bystanders witnessed the struggle. Burns obtained the officer's gun, and the officer warned the bystanders to stay away. Despite the officer's pleas, Burns shot and killed the officer. Burns told Williams to leave the vehicle, and then Burns fled the scene on foot.

Burns was convicted of first-degree murder and trafficking in cocaine. The jury recommended death, and the trial judge followed the recommendation. On appeal, this Court affirmed Burns' convictions but vacated his death sentence. Burns v. State, 609 So.2d 600 (Fla.1992) (Burns I).

Burns v. State, 699 So.2d 646, 647-48 (Fla. 1997) (Burns II). In Burns v. State, 609 So.2d 600 (Fla.1992) (Burns I), we vacated the death sentence and remanded for a new penalty phase because we could not determine what weight the trial judge gave to the various aggravating and mitigating factors that he found or what part an aggravator found to be invalid played in Burns' sentence. We determined that the error in Burns' case could not be found to be harmless and that because of another evidentiary error in the penalty phase proceeding, a new penalty phase before a jury was required. Burns I, 609 So.2d at 607.

At resentencing the jury again unanimously recommended death, and the trial judge followed that recommendation. The trial judge found three aggravating factors which were merged into one,¹ two statutory mitigating factors,² and three nonstatutory mitigating factors.³ This Court affirmed the death sentence. Burns II, 699 So.2d at 654.

On March 2, 2000, Burns filed an amended motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, raising seven claims.⁴ The postconviction court held a Huff⁵ hearing, and the parties agreed that only the first claim, concerning ineffective assistance of resentencing counsel, required an evidentiary hearing.

The evidentiary hearing was held on November 20, 2000. Burns presented the testimony of his resentencing attorneys, Assistant Public Defender Adam Tebrugge and Public Defender Elliot Metcalfe, and the testimony of forensic psychologist Dr. Robert Berland and clinical neuropsychologist Dr. Henry Dee. The State did not present any witnesses at the evidentiary hearing but requested that the postconviction court take judicial notice of the prior record and the testimony presented both at Burns' initial trial and resentencing. The State specifically requested that the postconviction court examine the testimony of clinical neuropsychologist Dr. Sidney Merin, who testified at the penalty phase of Burns' initial trial.

The postconviction court subsequently denied all of Burns' claims. State v. Burns, No. 87-2014 (Fla. 12th Cir. Ct. order filed Dec. 18, 2000) (Postconviction Order).

Burns appealed the denial of his postconviction motion, raising four issues.⁶ Oral argument was held in this Court on February 5, 2002. On February 4, 2002, Burns requested permission to file a supplemental brief concerning whether he met the statutory definition for mental retardation based on section 921.137, Florida Statutes (2000). This Court granted that motion, and Burns and the State filed supplemental briefs. The Supreme Court subsequently released Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), in which it held that the execution of mentally retarded individuals is unconstitutional.

On November 18, 2004, following the enactment of Florida Rule of Criminal Procedure 3.203, we relinquished jurisdiction of this case to the circuit court for a determination of mental retardation. The circuit court held an evidentiary hearing on May 11, 2005, at which the State and the defendant presented expert testimony and submitted other evidence. The circuit court, in an order dated June 10, 2005, found that the defendant did not meet the statutory definition for mental retardation. In his supplemental brief to this Court, Burns appeals that order. We now address the issues Burns raised in his initial and supplemental briefs.

II. ANALYSIS OF ISSUES ON APPEAL

A. Original Postconviction Issues

1. Ineffective Assistance of Penalty Phase Counsel for Failure to Present Expert Mental Mitigation Evidence

Burns first asserts that the postconviction court erred in denying Burns' claim that resentencing counsel were ineffective for failing to present available mental mitigation evidence. To establish a claim of ineffective assistance of counsel, a defendant must show both that counsel's performance was deficient and that the defendant was prejudiced by that deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An attorney's performance is deficient when it falls below an objective standard of reasonableness under prevailing professional norms. Id. at 688, 104 S.Ct. 2052. Prejudice is demonstrated when "there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. In addition, "[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 from counsel's perspective at the time." Id. at 689, 104 S.Ct. 2052. This Court has stated: "Counsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel's strategic decisions. Moreover, 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." Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (citations omitted).

During the sentencing phase of Burns' initial trial in 1988, Burns called Dr. Robert Berland to testify concerning mental mitigation. Dr. Berland testified that his psychological testing indicated that Burns suffered from a chronic, psychotic disturbance involving a "thought disorder, psychotic thinking." Dr. Berland further testified that a thirteen-point difference between Burns' performance IQ and his verbal IQ indicated a long-term brain impairment of some significance. He thought that at the time of the murder, Burns was suffering from delusional paranoid thinking. Dr. Berland concluded that Burns was suffering from an extreme emotional or mental disturbance.

The State called Dr. Sidney Merin in rebuttal. Based on Dr. Merin's review of Dr. Berland's deposition and test results, statements of Burns and eyewitnesses to the murder, and Dr. Berland's testimony, Dr. Merin concluded that Burns was not under the influence of an extreme mental or emotional disturbance at the time of the murder.

Dr. Berland did not testify at the resentencing, and there was no expert testimony presented as to mental mitigation at the resentencing. Burns argues that counsel's failure to present evidence at the resentencing hearing of Burns' brain damage and psychotic disturbance was ineffective. The resentencing record reveals that counsel considered calling Dr. Berland to testify both at the resentencing before the jury and at the Spencer⁷ hearing before the judge. For example, when the State asked the resentencing court to grant Dr. Merin additional time to review Dr. Berland's testimony and testing, Tebrugge, Burns' counsel, responded by saying:

I can tell the Court and the State, Doctor Berland, if he is called would not be called Monday. So Doctor Merin would not need to be here on Monday.

And other than that, I'm not going to say too much. But if he does testify, I don't see any problem with him bringing his test results and copies of that to provide to the state.

(Emphasis added.) During a later portion of the resentencing proceedings, counsel Tebrugge told the trial court:

Doctor Berland, who the defense has retained in this case, ... was out of town last week to tend to his father who has been very sick. While he was doing that, his grandmother passed away. The funeral for his grandmother is tomorrow and then he'll be flying back into Tampa tomorrow evening. He would be available...