Cherry v. State, SC90511.

• Citation: 781 So.2d 1040
• Decision Date: 28 September 2000
• Docket Number: No. SC90511.,SC90511.
• Parties: Roger Lee CHERRY, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

781 So.2d 1040

Roger Lee CHERRY, Appellant, v. STATE of Florida, Appellee.

No. SC90511.

Supreme Court of Florida.

September 28, 2000.

Rehearing Denied March 27, 2001.

Gregory C. Smith, Capital Collateral Counsel, Andrew Thomas, Chief Assistant CCRC, and Sylvia W. Smith, Assistant CCRC, Office of the Capital Collateral Counsel-Northern Region, Tallahassee, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, Florida, for Appellee.

PER CURIAM.

Roger Lee Cherry appeals an order entered by the trial court below pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For reasons which follow, we affirm the trial court's order denying Cherry's postconviction motion.

Appellant was convicted of two counts of first-degree murder, one count of burglary with assault, and one count of grand theft and was sentenced to death for the 1986 slaying of an elderly couple in Deland, Florida. The facts in this case are set forth in greater detail in our opinion on direct appeal, in which we affirmed Cherry's convictions. See Cherry v. State, 544 So.2d 184 (Fla.1989),

cert. denied, 494 U.S. 1090, 110 S.Ct. 1835, 108 L.Ed.2d 963 (1990).

Briefly, Cherry had burglarized the home of Esther and Leonard Wayne, during which burglary Esther Wayne was killed by multiple blows to the head and Leonard Wayne died from cardiac arrest. The jury recommended death for both murders. The trial court followed the jury's recommendation, finding four aggravating factors for each victim: (1) Cherry had been previously convicted of a felony involving the use and threat of violence (i.e., robbery); (2) the murders were committed while Cherry was engaged in a burglary; (3) the murders were committed for pecuniary gain; and (4) the murders were "especially wicked, evil, atrocious, or cruel."

On appeal we held the aggravators for murder committed while engaged in a burglary and murder committed for pecuniary gain should have been considered as a single aggravating factor because they were based on the same aspect of the crime. We found that the heinous, atrocious, or cruel (HAC) aggravator was appropriate to the death of Esther Wayne but not as to Leonard Wayne. We then found the sentence of death proportionate as to the murder of Esther Wayne but not as to the death of Leonard Wayne. We stated:

Second, Cherry contends that the circumstances of this case do not support the trial court's finding that the murders were "especially wicked, evil, atrocious or cruel." We disagree and find that, as to Mrs. Wayne, the state has demonstrated the existence of this aggravating factor beyond a reasonable doubt.

. . . .

The testimony of the district medical examiner indicates that Mrs. Wayne was literally beaten to death. The medical examiner's external observations of Mrs. Wayne revealed multiple areas of contusion around the neck, eyes, lip, the right shoulder and collarbone, and over the left collarbone. A subdural hemorrhage covered most of the brain and was attributed to a forceful blow to the head. The left temporal bone was fractured and the skull dislocated from the spine at its juncture. Those injuries were consistent with trauma caused by her being struck with a fist, hand, or blunt instrument and resulted from at least five blows.

In addition, there was a shoe print on the back of Mrs. Wayne's pajama bottom with a corresponding bruise on her right buttock. The medical examiner concluded that the injuries received by Mrs. Wayne were severe and must have been inflicted with great force. Under these circumstances, the aggravating factor of heinous, atrocious, or cruel is appropriate to the murder of Mrs. Wayne. However, we find this aggravating factor inapplicable to the murder of Mr. Wayne.

Although we have concluded that there was an improper doubling, we are still left with three aggravating factors as to Mrs. Wayne-prior conviction of a violent felony, murder committed for pecuniary gain, and that the murder was especially heinous, atrocious, or cruel. In the absence of any mitigating factors, under these circumstances we affirm the death penalty as to Mrs. Wayne. However, we reverse the death sentence imposed as to Mr. Wayne on the ground that it is disproportionate as applied. We cannot conclude that death is a proportionate punishment when the victim dies of a heart attack during a felony in the absence of any deliberate attempt to cause the heart attack.

Id. at 187-88 (footnote omitted).

Cherry subsequently filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The trial court summarily denied the motion without holding an evidentiary hearing on the ground that most of the claims could have been raised on direct appeal. As for Cherry's remaining claim concerning ineffective assistance of counsel, the trial court denied the motion because Cherry failed to satisfy the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). On appeal, we affirmed the summary denials of all claims except those claims alleging counsel was ineffective in the penalty phase of the trial. We remanded for an evidentiary hearing on those claims. See Cherry v. State, 659 So.2d 1069 (Fla.1995)

.

Upon remand, the trial court held a three-day evidentiary hearing. Following the presentation of evidence and arguments by counsel, the trial court denied relief. The trial court entered an extensive, detailed order setting forth her reasons for the denial of relief.

This appeal follows, in which Cherry raises four issues for our review: (1) whether the trial court erred in denying Cherry's claim for ineffective assistance of penalty-phase counsel; (2) whether the trial court erred in denying Cherry's claim that he was denied a competent mental health evaluation and that counsel was ineffective for failing to provide the expert with sufficient background information; (3) whether trial counsel rendered ineffective assistance of counsel by failing to object to unconstitutional jury instructions and improper prosecutorial comments; and (4) whether the trial court erred in denying Cherry's motion to perpetuate testimony of out-of-state expert witnesses. For reasons stated below, we affirm the trial court.

In her order, the trial judge concluded:

The Court finds that in regard to Defendant's ineffective assistance claim alleging that counsel was deficient for not presenting the mental retardation mitigator and the organic brain damage mitigator, the Doctor's conclusions that the Defendant has fetal alcohol syndrome, organic brain damage and mental retardation were not supported at the evidentiary hearing with more than speculation that the Defendant's mother drank while she was pregnant with the Defendant, that he was exposed to agricultural toxins and as a result of these conditions, the Defendant suffers from organic brain damage. As such, Dr. Crown's testimony that the Defendant suffers from organic brain damage was derived from the accounts of his mother's alcohol abuse, the Defendant's mistreatment as a child, and the geographical and economic background of the Defendant during his childhood. Dr. Crown testified at the evidentiary hearing that his conclusion that the Defendant suffers from organic brain damage and mental retardation was not derived from any physical test results of the Defendant.

Moreover, at trial counsel requested psychiatric assistance and Dr. Barnard was appointed. Dr. Barnard testified at the evidentiary hearing held on December 16, 1996, that at the time of trial and at the evidentiary hearing, the Defendant fit the criteria for having an "antisocial personality disorder." Further, the doctor testified that in order to be found retarded, an individual must score seventy (70) or below. As such, the Defendant scored a 71 on verbal and a 76 on performance which gave him a resulting score of 72 which indicates a "borderline retardation" rather than retardation.

Furthermore, in response to the other possible mitigators referenced by the Defendant in his Motion, the Court finds that Dr. Barnard's evaluation/examination was introduced into evidence at the penalty phase at which time it was considered by the jury panel. In the evaluation by Dr. Barnard of the Defendant, Dr. Barnard summarized the Defendant's background from self-accounts of the Defendant as well as other materials provided by trial counsel (Mr. Miller). The information Dr. Barnard relied on included the Defendant's family history, educational history, employment history, marital history, medical history, psychiatric history and alcohol and drug history. See Psychiatric Evaluation of Roger Lee Cherry by Dr. George Barnard, attached hereto as Appendix A. This report came in as evidence at penalty phase without objection by the State, thereby, eliminating cross-examination of the facts presented in the report.

Further, in opposition to Dr. Crown's mental analysis of the Defendant that he does not fit the criteria for anti-social disorder, that he suffers from organic brain damage; and, that he suffers from mental retardation, Dr. Barnard, who evaluated the Defendant in 1986, testified that the Defendant does not exhibit any evidence of organic brain damage and that even if he did, that did not preclude the presence of "anti-social disorder" according to leading treatises. Dr. Barnard testified that the only evidence he had which may have supported a finding of brain damage was the fact that the Defendant had been hit in the mouth with a hammer at the age of 13; however, Dr. Barnard's evaluation report of the Defendant demonstrates that even considering the hammer incident, he still concluded that:

"[T]he defendant is a man who appears his stated age. He is oriented for person, time, place and situation, except that he is one day off for the day of the month. Clinically, he is

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