Butler v. State

Decision Date26 October 2012
Docket NumberSC10–2458.,Nos. SC10–1133,s. SC10–1133
Citation100 So.3d 638
PartiesHarry Lee BUTLER, Appellant, v. STATE of Florida, Appellee. Harry Lee Butler, Petitioner, v. Kenneth S. Tucker, etc., Respondent.
CourtFlorida Supreme Court

OPINION TEXT STARTS HERE

Bill Jennings, Capital Collateral Regional Counsel, Mark S. Gruber and Maria Perinetti, Assistant CCR Counsel, Middle Region, Tampa, FL, for Appellant/Petitioner.

Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Katherine Vickers Blanco, Tampa, FL, Assistant Attorney General, Tallahassee, FL, for Appellee/Respondent.

PER CURIAM.

Harry Lee Butler was convicted of first-degree murder and sentenced to death for the March 1997 murder of his former girlfriend,Leslie Fleming. This Court affirmed Butler's conviction and death sentence on direct appeal. See Butler v. State, 842 So.2d 817 (Fla.2003). On July 13, 2004, Butler filed a motion to vacate his conviction and death sentence pursuant to Florida Rule of Criminal Procedure 3.851 in the Sixth Judicial Circuit in and for Pinellas County. Butler filed an amended rule 3.851 motion on February 4, 2005. The postconviction court held three evidentiary hearings on the motion, the first in May 2008, the second in November 2008, and the third in September 2009. On May 13, 2010, the postconviction court entered an order denying relief.

Butler now appeals the denial of his rule 3.851 motion and also petitions this Court for a writ of habeas corpus. We have jurisdiction. Seeart. V, § 3(b)(1), (9), Fla. Const. Having considered the briefs filed by the parties and having heard oral argument, we affirm the postconviction court's denial of relief and deny Butler's petition for writ of habeas corpus.

I. STATEMENT OF THE CASE AND FACTS

We described the facts of this case when Butler's conviction and death sentence were reviewed on direct appeal:

On the night of March 13, 1997, or early morning hours of March 14, 1997, Leslie Fleming (Fleming), also known as Bay, was stabbed multiple times and asphyxiated by her former boyfriend, Harry Butler (Butler). Shawna Fleming (Shawna), Leslie's sister, discovered Fleming's body at about 7:15 a.m. on the morning of March 14 when LaShara Butler (LaShara), the couple's six-year old daughter, opened the apartment door for Shawna. According to LaShara's trial testimony, on the night before the body was discovered, she had been sleeping with her mother when her father entered the bedroom, picked her up, and took her to her own room. LaShara testified that she saw his face during this process. LaShara also stated she heard her mother say, “Stop,” saw her father's leg pinning down her mother's leg, and heard her mother screaming as though she were being hurt. Officer Scott Ballard, one of the first officers on the scene, testified that on the way to the police station, LaShara said, “My daddy hurt mommy. I heard him yelling at her.”

Lola Young, a long-time neighbor of Fleming's who had also known Butler for some time, testified she saw Butler hiding in the bushes near Fleming's apartment between 3:30 and 4 a.m., around the same time as the murder. She also stated that soon after seeing Butler, she saw a blue car speed through the housing complex, stop abruptly, pick up Butler, and speed off. Latwanda Allen (Allen) testified that she, Butler and Martisha Kelly (Kelly) are cousins. Allen said Kelly told her Butler killed Fleming. At trial, Kelly denied having made the statement.

....

Detective Green testified Kelly told him the murder weapon could be found in a dumpster near a food store where a pair of blue shorts, a white T-shirt, a pair of underwear, a towel, and a pair of tennis shoes having no laces were eventually found. However, no weapon was recovered from this location. Dr. Jeannie Eberhardt, a forensic scientist specializing in DNA serology, testified she found the presence of blood on the white T-shirt, but she was unable to confirm a DNA profile of the blood. Blood stains found on the denim shorts, towel, and boxer shorts were also tested, with the same result. The blood was either of an inadequate amount or degraded. The dyes of the denim shorts inhibited DNA testing. However, testing of the sneakers revealed a DNA profile consistent with that of the victim.

Butler, 842 So.2d at 821.

At trial, Butler admitted that the sneakers were his, but he maintained that another man, Dennis Tennell, had borrowed them prior to Fleming's murder. Other testimony established that Butler moved out of the apartment he shared with Fleming on March 9, 1997, several days before the murder. Lakisha Miller (nicknamed “Red”), Butler's cousin and Fleming's best friend, testified that Butler was upset because of the breakup and because Fleming was having an affair with another man, Adonis Hartsfield. Terry Jackson, Butler's coworker, testified that the day before the murder, Butler said he was going to “kill Bay and Red.” At the end of the guilt phase, the jury found Butler guilty of first-degree murder. See id. at 821–22.

At the penalty phase, the State relied on the evidence presented during the guilt phase, while the defense presented two witnesses: Butler's father, Junior Butler, and Butler's sister, Sandra Butler. The jury recommended that Butler be sentenced to death by a vote of eleven to one. The trial court conducted a Spencer1 hearing at which the defense presented the testimony of a psychiatrist, Dr. Michael Maher. The trial court later issued a sentencing order in which it concurred with the jury recommendation and sentenced Butler to death. The court found one aggravating circumstance, that the murder was especially heinous, atrocious, or cruel (HAC), no statutory mitigating circumstances, and four nonstatutory mitigating circumstances. See Butler, 842 So.2d at 822–23.2

Butler raised six claims of error on direct appeal. This Court rejected each claim and affirmed the conviction and death sentence. First, we held that the trial court did not err in admitting evidence concerning prior acts of violence committed by Butler. Id. at 823–27. Second, we held that the trial court properly allowed Dr. Eberhardt, the State's DNA expert, to testify at trial. Id. at 827–29. Third, we rejected Butler's claim that the trial court should have granted his motion for a new trial because of the State's alleged failure to disclose a probation violation report concerning witness Lola Young. Id. at 829–30. Fourth, we held that Butler's challenge to the jury instruction on the HAC aggravator was unpreserved and without merit. Id. at 830–31. Fifth, we held that the trial court did not fail to consider mitigating evidence of Butler's impaired mental capacity. Id. at 831–32. Finally, we held that Butler's death sentence was proportionate. Id. at 832–34. On rehearing, Butler argued that Florida's capital sentencing scheme violates the holding of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We held that Florida's death penalty does not violate Ring.Butler, 842 So.2d at 834.

Butler raised eleven issues in his amended rule 3.851 motion. Butler's first claim concerned the State's failure to release evidence relating to postconviction DNA testing. Butler argued in his second through tenth claims that his trial counsel rendered ineffective assistance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).3 In his final claim, Butler argued that the cumulative effect of all alleged errors sufficiently prejudiced him as to merit relief. Three evidentiary hearings were held on Butler's amended motion. Two of Butler's trial attorneys, Richard Watts and Anne Borghetti, testified at the hearings. 4 On May 8 and 9, 2008, the postconviction court heard testimony regarding the development and presentation of evidence during the guilt phase of Butler's trial. On November 6 and 7, 2008, witnesses testified regarding Butler's claim that counsel was deficient during the penalty phase. Finally, on September 29, 2009, Butler presented as a witness Professor David Dow of the University of Houston Law Center, who testified as an expert in norms and standards governing attorney conduct in death penalty litigation.

The postconviction court entered an order on May 13, 2010, denying Butler's amended motion. As to Butler's first claim, concerning the State's failure to furnish him with certain public records relating to DNA testing, the court denied the claim as moot, citing an acknowledgement by Butler's counsel that the issue had been resolved. As to Butler's claims of ineffective assistance of counsel, the court denied each claim due to Butler's failure to establish deficiency or prejudice or both under the standards set out in Strickland and its progeny. Lastly, the court held that because it found each of Butler's individual claims to be without merit, cumulative error analysis was not appropriate.

Butler now appeals the postconviction court's denial of relief. He argues that the postconviction court erred in denying relief based on each of his nine claims of ineffective assistance of counsel, and further asserts cumulative error as a basis for relief before this Court. In addition, Butler has filed an accompanying petition for writ of habeas corpus, in which he raises the following claims: (1) appellate counsel provided ineffective assistance by failing to file a petition for certiorari with the United States Supreme Court; (2) appellate counsel provided ineffective assistance by abandoning the claim that LaShara Butler was incompetent to testify at trial; (3) Florida's lethal injection protocol constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution; and (4) Butler's right against cruel and unusual punishment will be violated becausehe may be incompetent at the time of execution. We address each of these claims below.

II. RULE 3.851 MOTIONA. Ineffective Assistance of Guilt Phase Counsel

In claims I through VIII...

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