Cummings-El v. State

• Decision Date: 09 October 2003
• Docket Number: No. SC01-1501, No. SC02-1784.
• Citation: 863 So.2d 246
• Parties: Frederick W. CUMMINGS-EL, Appellant, v. STATE of Florida, Appellee. Frederick W. Cummings-El, Petitioner, v. James V. Crosby, Jr., etc., Respondent.
• Court: Florida Supreme Court

863 So.2d 246

Frederick W. CUMMINGS-EL, Appellant, v. STATE of Florida, Appellee.

Frederick W. Cummings-El, Petitioner, v. James V. Crosby, Jr., etc., Respondent.

Nos. SC01-1501, SC02-1784.

Supreme Court of Florida.

October 9, 2003.

Tony Moss, Miami, FL; and Sara K. Dyehouse, Tallahassee, FL, for Appellant/Petitioner.

Charles J. Crist, Jr., Attorney General, and Steven R. Parrish, Assistant Attorney General, Miami, FL, for Appellee/Respondent.

PER CURIAM.

Frederick W. Cummings-El appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Cummings-El also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we affirm the circuit court's order denying Cummings-El's rule 3.850 motion, and we deny Cummings-El's petition for a writ of habeas corpus.

BACKGROUND

The facts of this case, as set forth in this Court's direct appeal opinion, are as follows:

The defendant, Fred Cummings-El, dated the victim, Kathy Good, for a short period and the two lived together for several months. After the relationship ended, Cummings-El harassed Good and she eventually obtained a restraining order after he assaulted her at a neighbor's house. He then made numerous verbal threats, such as: "Kathy, I'm going to kill you. Kathy, I'm going to kill you [ ]"; and "I love her. If I can't have her, nobody [can] have her."; and finally "If I can't have you, ain't nobody going to have you."

Cummings-El broke into Good's home in the early morning hours of September 16, 1991, and stabbed her several times while she was sleeping, killing her. Several people heard Good's screams and saw Cummings-El at the scene. Good's eight-year-old son, Tadarius, was asleep in bed with his mother and awoke to see Cummings-El "punching" his mother. Good's twenty-year-old nephew, Michael Adams, was asleep on the floor of Good's bedroom and saw Cummings-El fleeing from the house. And Good's mother, Daisy Adams, confronted Cummings-El as he was leaving the bedroom. Cummings-El, whose face was only one or two feet from Daisy's, shoved Daisy to the ground and ran. Good then staggered from the bedroom and collapsed in her mother's arms, saying "Fred, Fred."

Cummings-El v. State, 684 So.2d 729, 730-31 (Fla.1996).

The jury convicted Cummings-El of first-degree murder and armed burglary, and recommended death by an eight-to-four vote. The trial court followed the jury's recommendation and sentenced Cummings-El to death, finding four aggravating circumstances: (1) Cummings-El had three prior violent felony convictions; (2) the murder was committed during the course of a felony; (3) the murder was heinous, atrocious, or cruel (HAC); and (4) the murder was cold, calculated, and premeditated (CCP). The trial court found no mitigating circumstances. State v. Cummings-El, No. 91-32268 (Fla. 11th Cir. Ct. order filed Feb. 19, 1993). Cummings-El appealed his conviction and sentence to this Court, raising six issues.¹ This Court affirmed the conviction and sentence of death. Cummings-El v. State, 684 So.2d 729 (Fla.1996).

On May 26, 1999, Cummings-El filed an amended rule 3.850 motion for postconviction relief, raising eleven issues.² The postconviction court held a Huff³ hearing and thereafter summarily denied all but one of Cummings-El's claims. The court granted an evidentiary hearing regarding Cummings-El's claim that trial counsel was ineffective for failing to investigate and present mitigating evidence at the penalty phase of trial.

After the Huff hearing, Cummings-El expressed dissatisfaction with his attorney. The postconviction court conducted an inquiry into Cummings-El's claim, discharged the attorney, and appointed a new attorney. On June 22, 2000, Cummings-El filed a second amended rule 3.850 motion for postconviction relief, raising three additional issues.⁴ On July 13, 2000, Cummings-El filed a third amended motion for postconviction relief, raising one additional claim.⁵

On September 25, 2000, the postconviction court held a second Huff hearing on Cummings-El's newly added claims. The postconviction court found that Cummings-El's additional claims were technically untimely, but because counsel had been recently appointed and investigated the additional claims in a reasonable period of time after his appointment, the court agreed to consider the additional claims. The court thereafter summarily denied claims twelve and thirteen. The court determined that claim fourteen would be considered as a supplement to claim five. Finally, the court denied claim fifteen without prejudice for defense counsel to obtain a sworn affidavit of recantation or sworn testimony subject to cross-examination from Tadarius Williams. If defense counsel produced such evidence, the court agreed to hear claim fifteen at the previously scheduled evidentiary hearing. State v. Cummings-El, No. F91-33268 (Fla. 11th Cir. Ct. order filed Oct. 11, 2000).

Following the evidentiary hearing, the postconviction court entered a final order denying all relief. State v. Cummings-El, No. F91-33268 (Fla. 11th Cir. Ct. order filed June 14, 2002). Cummings-El now appeals the postconviction court's denial of his rule 3.850 motion. He also petitions this Court for a writ of habeas corpus.

RULE 3.850 APPEAL

Cummings-El's rule 3.850 appeal asserts the following: (1) the postconviction court erred by denying Cummings-El's claim that trial counsel was ineffective for failing to request a second-chair attorney; (2) the postconviction court erred by denying Cummings-El's claim that trial counsel was ineffective for failing to object to the State's method of death-qualifying a jury and for failing to object to the trial court's exclusion of venirepersons Kozakowski and Oshinsky for cause; (3) the postconviction court erred by denying Cummings-El's claim that trial counsel was ineffective for failing to object to an improper comment made by the trial court regarding Cummings-El's right to remain silent; (4) the postconviction court erred by denying Cummings-El's claim that trial counsel was ineffective for failing to investigate and present mitigating evidence during the penalty phase; (5) the postconviction court erred by denying Cummings-El's claim that trial counsel was ineffective for failing to call Daphne Roberts to testify during the penalty phase; (6) the postconviction court erred by denying Cummings-El's claim that trial counsel was ineffective for failing to object to the cumulative testimony of Michael and Daisy Adams at the penalty phase; and (7) the postconviction court erred by denying Cummings-El's claim that the cumulative effect of trial counsel's errors resulted in ineffective assistance of counsel. In view of the thorough and well-prepared order of the trial court, we find it unnecessary to discuss each of Cummings-El's claims and affirm the postconviction court's summary denial of claims one, two, three, five, six, and seven.⁶ We will discuss Cummings-El's fourth claim that trial counsel was ineffective for failing to investigate and present mitigating evidence at the penalty phase of trial.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court provided the guidelines for establishing an ineffective assistance of counsel claim:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown of the adversary process that renders the result unreliable.

This Court reviews a postconviction court's Strickland analysis as follows:

[T]he performance and prejudice prongs are mixed questions of law and fact subject to a de novo review standard but... the trial court's factual findings are to be given deference. See Stephens v. State, 748 So.2d 1028, 1034 (Fla.1999)

. So long as its decisions are supported by competent, substantial evidence, this Court will not substitute its judgment for that of the trial court on questions of fact and, likewise, on the credibility of the witnesses and the weight to be given to the evidence by the trial court. Id. We recognize and honor the trial court's superior vantage point in assessing the credibility of witnesses and in making findings of fact.

Porter v. State, 788 So.2d 917, 923 (Fla. 2001).

With respect to claims of ineffective assistance of counsel for failing to investigate and present evidence at the penalty phase, the United States Supreme Court recently provided:

[O]ur principal concern in deciding whether [counsel] exercised "reasonable professional judgmen[t]" is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence... was itself reasonable. In assessing counsel's investigation, we must conduct an objective review of their performance, measured for "reasonableness under prevailing professional norms," which includes a context-dependent consideration of the challenged conduct as seen "from counsel's perspective at the time."

Wiggins v. Smith, ___ U.S.___, ___, 123 S.Ct. 2527, 2536, 156 L.Ed.2d 471 (2003) (citations omitted).

During the penalty phase of this case, trial counsel Theodore Mastos presented the testimony of two of Cummings-El's sisters, Catherine Covington and Diane St. Fleur. They testified that Cummings-El was good to his family, was not violent, and was innocent of the crime....