Cave v. State

• Decision Date: 27 January 2005
• Docket Number: No. SC03-95.,SC03-95.
• Citation: 899 So.2d 1042
• Parties: Alphonso CAVE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

899 So.2d 1042

Alphonso CAVE, Appellant, v. STATE of Florida, Appellee.

No. SC03-95.

Supreme Court of Florida.

January 27, 2005.

Rehearing Denied April 7, 2005.

Mary Catherine Bonner, Fort Lauderdale, FL, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, FL and Debra Rescigno, Assistant Attorney General, West Palm Beach, FL, for Appellee.

PER CURIAM.

Alphonso Cave, an inmate under sentence of death, appeals an order of the circuit court denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction, see art. V, § 3(b)(1), Fla. Const., and, for the reasons that follow, we affirm.

I. BACKGROUND

In 1982, Alphonso Cave was convicted of armed robbery, kidnapping, and first-degree murder. In our opinion on direct appeal, we summarized the underlying facts as follows:

Cave and three accomplices left Ft. Pierce, Florida, on the evening of April 26, 1982, and drove to Stuart, Florida. They arrived in Stuart at approximately 11 p.m. that evening. The driver, and owner of the car in which all four rode, was John Earl Bush. The other two accomplices were J.B. ("Pig") Parker and Terry Wayne Johnson ("Bo Gator"). At approximately 3 a.m. on the following morning, the four men drove to a convenience store in Stuart. Cave and two of the men [Bush and Parker] entered the store where Cave held a hand gun on the youthful female clerk [Frances Slater] and demanded the store's cash. The clerk surrendered the cash, whereupon she was taken from the store and placed in the back seat of the car. The men drove her to a rural area approximately thirteen miles away where she was removed from the car by the four men. After leaving the car, one of the men [probably Bush] stabbed the victim and, when she fell, another [probably Parker] fired a single lethal shot into the back of her head.

Cave v. State, 476 So.2d 180, 183 (Fla.1985) (Cave I). In particular, we wrote that

Cave was the gunman who admits to holding the gun on the clerk during the robbery and forcing her into the car; he was present in the car during the thirteen-mile ride and heard her plead for her life; and he was present when she was forcibly removed from the car in a rural area, stabbed, and shot in the back of the head.

Id. at 187.

At the conclusion of the penalty phase, the jury (by a vote of seven to five) recommended a sentence of death on the first-degree-murder conviction. Following the jury's recommendation, the trial court sentenced Cave to death, finding three aggravating circumstances¹ and no mitigating circumstances. On direct appeal, we affirmed Cave's convictions and his death sentence. Cave I, 476 So.2d at 183.

In 1988, Cave sought postconviction relief under rule 3.850. The circuit court denied Cave's motion, and we affirmed. Cave v. State, 529 So.2d 293 (Fla.1988) (Cave II). Cave then petitioned the federal district court for a writ of habeas corpus. The district court granted Cave partial relief, ordering a new sentencing proceeding but rejecting Cave's plea for a new guilt-phase trial. The court of appeals affirmed, Cave v. Singletary, 971 F.2d 1513 (11th Cir.1992) (Cave III),² and the case was remanded to the state circuit court for a new penalty-phase proceeding.

At the conclusion of this new penalty phase (the 1993 resentencing), the jury (by a vote of ten to two) recommended a sentence of death. Following the jury's recommendation, the trial court sentenced Cave to death, finding five aggravating circumstances,³ no statutory mitigating circumstances, and four nonstatutory mitigating circumstances.⁴ Cave v. State, 660 So.2d 705, 706 (Fla.1995) (Cave IV). On direct appeal, however, we vacated the sentence because the trial judge had erroneously conducted a full evidentiary hearing on the factual allegations contained in Cave's motion to disqualify the judge. Id. at 707-08.

The case was remanded for yet another penalty-phase proceeding. At the conclusion of this latest penalty phase (the 1996 resentencing), the jury (by a vote of eleven to one) recommended a sentence of death. Following the jury's recommendation, the trial court again sentenced Cave to death, finding four aggravating circumstances,⁵ one statutory mitigating circumstance,⁶ and several nonstatutory mitigating circumstances.⁷ Cave v. State, 727 So.2d 227, 228 (Fla.1998) (Cave V). On direct appeal, we affirmed the death sentence. Id. Among other things, we rejected Cave's claim that his death sentence was unconstitutional under Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), and Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and we rejected the claim that his death sentence was disproportionate. We noted that the trial court found that even though Cave was not the shooter, he was a ringleader and "exercised a leadership role throughout" the criminal episode. 727 So.2d at 229.⁸ Cave then filed the rule 3.850 motion that is at issue here. Before the circuit court, Cave raised several claims.⁹ The circuit court conducted a two-day evidentiary hearing on all of Cave's claims except the Apprendi claim.¹⁰ After the hearing and after both Cave and the State presented written closing arguments, the circuit court denied relief.¹¹

Cave now appeals the circuit court's denial of relief, raising four claims. First, he argues that he is entitled to a new trial (on both guilt and sentencing) or, at a minimum, to a new sentencing proceeding in light of codefendant Bush's "deathbed statement." As noted above, Bush's former attorney, Kissinger, testified at the evidentiary hearing that Bush, just before he was executed, told Kissinger that Cave had attempted to dissuade the others from killing the victim and, when he was unsuccessful, he withdrew to the car and took no part in the killing. Cave argues that Bush's statement constitutes newly discovered evidence or, alternatively, that counsel's failure to discover and introduce this evidence at the penalty phase, either by preserving Bush's testimony through deposition or by calling Kissinger to testify about what Bush said before being executed, amounted to ineffective assistance of counsel.

Second, Cave argues that Florida's capital-sentencing scheme is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). Third, he argues that counsel was ineffective for failing to present expert mental-health testimony and evidence of Cave's extensive history of heroin abuse. Finally, Cave argues that counsel's overall performance was ineffective, specifically counsel's failure to present evidence of Bush's statement, his failure to object to the State's misleading voir-dire questions, his decision to introduce the fact of Cave's prior arrest and failure to object when the State later elicited the nature of the charge, his failure to prepare Cave and Cave's mother for their testimony, and his overall strategy of not presenting expert mental-health testimony, which, Cave argues, was based on counsel's misunderstanding of the circumstantial-evidence rule.

II. DISCUSSION

A. Codefendant Bush's Statement

1. Introduction

Cave makes two separate arguments here. First, he argues that counsel was ineffective for failing in some way to introduce Bush's statement at the 1996 resentencing. Cave argues that counsel should have preserved Bush's testimony by deposing him prior to his execution or he should have called Bush's lawyer, Kissinger, to testify about the statement Bush made to him. Counsel's failure to take either course of action, Cave argues, resulted in ineffective assistance of counsel because the jury did not get to hear from one of Cave's codefendants that not only did Cave not shoot or stab the victim, but also that he affirmatively tried to prevent the killing, and when this attempt was unsuccessful, he withdrew to the car and took no part in the killing. Cave also argues, alternatively, that Bush's statement constitutes newly discovered evidence entitling him either to a new trial or, at a minimum, a new penalty phase. We reject both of these arguments for the reasons we will explain below.

2. Relevant Statements

At the evidentiary hearing, Kissinger testified about a statement Bush made to him after all of Bush's appeals had been exhausted and Bush knew he would be executed the next morning. Kissinger testified as follows:

Mr. Bush was — was distraught. Distraught at this point not because of his discussion [sic] but because of — he felt responsible in a way for Mr. Cave's predicament.

What he stated to me was — was to a certain extent a repetition of what he had testified to during his own sentencing which was that the — that as between the three individuals, Mr. Bush, Mr. Cave, and Mr. Parker, that they were at the scene of the — the scene of the victim's murder.

That according to Mr. Bush's recollection or Mr. Bush's statements, they had gone out there without any specific plan as to what they were going to do. They had committed this robbery, they had kidnapped this young woman and they had taken her to this area. He stated that at that point Mr. Parker directed Mr. Cave to provide him with a firearm that Mr. Cave had in his possession which Mr. Cave — Mr. Cave did.

....

Mr. Parker then made a statement to the effect, and again, this is a statement which is consistent with Mr. Bush's testimony at the sentencing. Mr. Parker made a statement at this point that he was going to — he was going to do what he had to do or something along those lines.

At this point, Mr. Cave — Mr. Bush told me that Mr. Cave became upset and that he told Mr. Parker basically that it was — that he didn't have — he didn't have to do this. Mr. Parker to my understanding repeated some statement to the effect that it became obvious that he was going through with it. Mr. Cave not being successful in his attempts to affirm [sic] what appeared inevitable, left Mr. Parker and Mr. Bush. And if I recall Mr.

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