Cherry v. State

• Decision Date: 31 August 1995
• Docket Number: No. 83773,83773
• Citation: 659 So.2d 1069
• Parties: 20 Fla. L. Weekly S451 Roger Lee CHERRY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1069

659 So.2d 1069

20 Fla. L. Weekly S451

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

No. 83773.

Supreme Court of Florida.

Aug. 31, 1995.

Scott Barker, Richard Schneeback and Craig Stewart of Holland & Hart, Denver, CO, and Matthew Lawry and Anne Jacobs of Volunteer Lawyers' Resource Center of Florida, Inc., Tallahassee, for appellant.

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

PER CURIAM.

Roger Lee Cherry, a prisoner under sentence of death, appeals the trial court's summary denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const. For the reasons expressed below, we affirm in part and reverse in part and remand for an evidentiary hearing consistent with this opinion.

Procedural Status

A more detailed description of the facts of this case is contained in 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), wherein we affirmed Cherry's convictions and death sentence arising out of the murder of Esther Wayne. We vacated Cherry's death sentence as to the death of Leonard Wayne and remanded for the imposition of a sentence of life without parole for twenty-five years. As to the non-capital offenses, we vacated and remanded for resentencing under the guidelines.

In his 3.850 motion, Cherry raised twenty claims which are renumbered before this Court. The trial court summarily denied Cherry's motion without conducting an evidentiary hearing, and also denied Cherry's motion to disqualify the trial judge from presiding over the 3.850 proceedings. The trial court ruled that claims 1, 3, 4, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20 could have been and should have been raised on direct appeal and therefore are not cognizable under rule 3.850. As to Cherry's ineffective assistance of counsel claims raised in claims 3 and 6, the trial court ruled that the claims as stated in the petition did not meet the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). On claim 7, alleging the withholding of evidence by the State, the trial court found that Cherry had established neither materiality nor prejudice under the standard set out in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Appeal

In this appeal, Cherry raises nineteen claims. ¹ (These issues are referred to in Roman numeral style in the trial court's order.)

Disqualification of Judge

As a preliminary matter, we find no error in the trial judge's ruling on the appellant's motion seeking to disqualify the judge in these post-conviction proceedings. We agree that Cherry's allegations in his motion for disqualification are insufficient as a matter of law, and we also reject appellant's claim that the trial court's order on the motion was so improper as to furnish an additional ground for disqualification.

Remaining Claims

As to Cherry's remaining claims, we find no error in the trial court's holding that claims 1, 3, 4, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19 (as numbered by the appellant on appeal) are procedurally barred because they could have been raised on direct appeal. Doyle v. State, 526 So.2d 909, 911 (Fla.1988).

To counter the procedural bar to some of these issues, Cherry has couched his claim on appeal, in the alternative, in terms of ineffective assistance of counsel in failing to preserve or raise those claims. We have consistently recognized that "[a]llegations of ineffective assistance cannot be used to circumvent the rule that post-conviction proceedings cannot serve as a second appeal." Medina v. State, 573 So.2d 293, 295 (Fla.1990). In this instance, because we believe that Cherry is attempting to do exactly this, we reject those claims and affirm the trial court's summary denial thereof.

Exclusion of Witness

Cherry alleged that newly discovered evidence will show a different reason than that asserted at trial for the trial judge's refusal to allow a witness's testimony at trial. However, on direct appeal Cherry specifically raised the issue of the trial court's exclusion of this witness. We rejected Cherry's contention that the trial court's decision to exclude this witness's testimony violated Richardson v. State, 246 So.2d 771 (Fla.1971). Although Cherry has rephrased this claim in terms of newly discovered evidence, we find it inappropriate for Cherry to use a different argument to collaterally relitigate an evidentiary issue already known and specifically considered and rejected on direct appeal. Medina, 573 So.2d at 295. In addition, to the extent that this can be characterized as a different issue, we find the allegations insufficient as a matter of law to merit relief.

Guilt Phase Performance of Counsel

Next, we consider the trial court's ruling finding the allegations of ineffective assistance of trial counsel, based on counsel's alleged inadequate performance during the guilt phase of his trial, insufficient to meet the standards set forth under the two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a defendant must establish two components in order to demonstrate that counsel was ineffective: (1) counsel's performance was deficient and (2) counsel's deficient performance prejudiced the defense. As to the first prong, the defendant must establish that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 686, 104 S.Ct. at 2063. As to the second prong, the defendant must establish that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. "[U]nless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Id. Applying this standard, we find no error by the trial court in rejecting these claims.

Cherry has simply failed to provide sufficient allegations demonstrating both a deficient performance and the probability of a different outcome based on the alleged deficiencies. For instance, Cherry alleges that trial counsel failed to investigate issues relating to Cherry's mental status which would have revealed his incompetency to testify and his intoxication at the time of the offense. At trial, counsel's theory of the case was that Cherry had not committed these crimes. Hence, an involuntary intoxication defense would actually have been inconsistent with Cherry's defense that he had not committed these murders, as well as Cherry's own testimony on the issue of intoxication. Further, counsel was successful in having a mental health expert appointed, and that expert found Cherry competent.

Cherry also claims that counsel was ineffective for failing to present evidence that someone other than Cherry had entered the victims' home and killed them. However, during the trial, defense counsel contended that the most likely culprit was the Waynes' former son-in-law, Jack Baumgartner. Counsel vigorously questioned Baumgartner at trial concerning his troubled relationship with the Waynes. Counsel's cross-examination was obviously aimed at establishing that Baumgartner had a motive to kill the Waynes. Cherry also contends that counsel should have presented evidence that another person, James Terry, may have been the perpetrator of the murders. However, during the trial counsel did question a witness concerning her observations on the morning of the slayings, including her observations of Terry near the scene of the crime.

Applying the Strickland standard to all of these claims, ² we agree with the trial court's conclusion that the multiple allegations simply constitute claims of disagreement with trial counsel's choices as to strategy. More importantly, Cherry has not even attempted to demonstrate that these alleged errors would have altered the outcome in this case. The standard is not how present counsel would have proceeded, in hindsight, but rather whether there was both a deficient performance and a reasonable probability of a different result. We affirm the trial court's summary denial of this claim.

Brady

Cherry next argues that, in violation of Brady v. Maryland, the State failed to turn over several pieces of evidence favorable to his defense. The trial court concluded that Cherry had demonstrated neither materiality nor prejudice under Brady. We agree with the trial court's conclusion.

In determining the effect of the State's failure to disclose exculpatory evidence, the test "is whether there is a reasonable probability that 'had the evidence been disclosed to the defense, the result of the proceeding would have been different.' " Duest v. Dugger, 555 So.2d 849, 851 (Fla.1990) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494 (1985)). In short, in order for Cherry to establish a Brady violation, he would have to prove the following: (1) that the State possessed evidence favorable to him; (2) that the evidence was suppressed; (3) that he did not possess the favorable evidence nor could he obtain it with any reasonable diligence; and (4) that had the evidence been disclosed to Cherry, a reasonable probability exists that the outcome of the proceedings would have been different. Hegwood v. State, 575 So.2d 170, 172 (Fla.1991).

Cherry maintains that the State failed to provide him with information which would have revealed that Baumgartner, the Waynes' son-in-law, was in a convenience store before the murders and had told the store clerk that his in-laws wanted to evict him. Cherry claims this evidence was material because it supported his theory that Baumgartner may have been the perpetrator. In this case...