Davis v. State, SC02-1424.

CourtUnited States State Supreme Court of Florida
Citation928 So.2d 1089
Docket NumberNo. SC02-1424.,No. SC04-705.,SC02-1424.,SC04-705.
PartiesMark Allen DAVIS, Appellant, v. STATE of Florida, Appellee. Mark Allen Davis, Petitioner, v. James V. Crosby, Jr., etc., Respondent.
Decision Date20 October 2005

Page 1089

928 So.2d 1089
Mark Allen DAVIS, Appellant,
STATE of Florida, Appellee.
Mark Allen Davis, Petitioner,
James V. Crosby, Jr., etc., Respondent.
No. SC02-1424.
No. SC04-705.
Supreme Court of Florida.
October 20, 2005.
Rehearing Denied April 7, 2006.

Page 1090


Page 1091


Page 1092


Page 1093


Page 1094


Page 1095


Page 1096


Page 1097


Page 1098


Page 1099


Page 1100


Page 1101


Page 1102

Linda McDermott, Fort Lauderdale, FL, for Appellant/Petitioner.

Charles J. Crist, Jr., Attorney General, Tallahassee, FL and Candance M. Sabella, Assistant Attorney General, Chief of Capital Appeals, Tampa, FL, for Appellee/Respondent.


Mark Allen Davis appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Davis also petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.


Davis was convicted of robbery, grand theft, and the first-degree murder of Orville Landis. See Davis v. State, 586 So.2d 1038, 1039 (Fla.1991), vacated, 505 U.S. 1216, 112 S.Ct. 3021, 120 L.Ed.2d 893 (1992). The jury, by a vote of eight to four, recommended the death penalty. See id. Following that recommendation, the trial judge sentenced Davis to life in prison on the robbery conviction, five years on the grand theft conviction, and death for the first-degree murder conviction. On direct appeal, we affirmed Davis's conviction for first-degree murder and death sentence. See id. at 1042. In affirming Davis's conviction and sentence, we detailed the facts surrounding the murder of Landis:

[Davis] came to St. Petersburg, Florida, during late June 1985, and immediately prior to the murder of Orville Landis apparently had been living in the parking lot of Gandy Efficiency Apartments. On July 1, 1985, Landis was moving into one of the apartments, and [Davis] offered to assist him. Subsequent to moving, the two men began drinking beer together, and [Davis] borrowed money from Landis. Witnesses testified that Landis had approximately $500 in cash that day. [Davis] told Kimberly Rieck, a resident of the apartment complex, that he planned to get Landis drunk and "see what he could get out of him." During approximately the same time, [Davis] told Beverly Castle, another resident, that he was going to "rip him [Landis] off and do him in." Shortly thereafter, Landis and [Davis] were seen arguing about money and they went to Landis' apartment.

Landis was last seen alive on July 1, 1985, at approximately 8:30 p.m. Castle testified that [Davis] appeared at her door at about midnight and told her that he had to leave town right away, and would not be seen for two or three years. Castle observed [Davis] driving

Page 1103

away in Landis' car. During the afternoon of July 2, Castle became concerned and had Landis' apartment window opened, through which she observed him lying on his bed in a pool of blood.

When the police arrived they found Landis' wallet empty of all but a dollar bill. A fingerprint found on a beer can in the apartment was later identified as [Davis's]. The medical examiner testified that the victim sustained multiple stab wounds to the back, chest, and neck; multiple blows to the face; was choked or hit with sufficient force to break his hyoid bone; was intoxicated to a degree that impaired his ability to defend himself; and was alive and conscious when each injury was inflicted. The evidence showed that the slashes to the victim's throat were made with a small-bladed knife, which was broken during the attack, and the wounds to the chest and back were made with a large butcher knife, found at the crime scene.

[Davis] confessed to the police to the killing, as well as to the taking of Landis' money and car. He also told a fellow inmate that he killed Landis but expected to "get second degree," despite his confession, by claiming self-defense.

Id. at 1040.

At the penalty phase, the State presented one witness, Detective Craig Salmon, a police officer in Pekin, Illinois. Salmon provided testimony relating to Davis's prior offense of attempted armed robbery in Illinois in 1980, which was used in part to provide the basis for the prior violent felony aggravator. Davis was the only witness to testify at the penalty phase on his behalf. The jury voted eight to four in favor of the death penalty. See id.

In sentencing Davis to death, the trial judge found three aggravating circumstances —that the murder was committed while Davis was under a sentence of imprisonment; that the murder was especially heinous, atrocious, or cruel ("HAC"); and that the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification ("CCP"). The trial court also found the following aggravators, but considered them collectively as constituting only one aggravating circumstance: that the murder was committed for pecuniary gain, that Davis had previously been convicted of another capital offense or felony involving the use of or threat of violence to some person,1 and that the murder was committed while Davis was engaged in the commission of a robbery. The trial court found no mitigating circumstances.

On direct appeal, we affirmed Davis's murder conviction and death sentence. See Davis, 586 So.2d at 1042. In our opinion, we rejected Davis's claim that several comments made during trial by the State constituted impermissible comment. See id. at 1041. With regard to Davis's assertion that he was absent from the courtroom when jury challenges were exercised, we noted that this issue was remanded for a hearing to determine the applicable facts and that the trial judge's finding that Davis was in the courtroom at the relevant time was supported by competent substantial evidence, thereby rendering Davis's claim untenable. See id. Regarding Davis's other claims presented on direct appeal, we denied relief on all of them. See id. at 1040-41.

In June of 1992, the United States Supreme Court granted certiorari and vacated

Page 1104

the judgment of this Court, remanding the case for further consideration in light of the High Court's opinion in Espinosa v. Florida, 505 U.S. 1079, 112 S.Ct. 2926, 120 L.Ed.2d 854 (1992). See Davis v. Florida, 505 U.S. 1216, 112 S.Ct. 3021, 120 L.Ed.2d 893 (1992). On remand, we reaffirmed Davis's death sentence, determining that the Espinosa issue was procedurally barred because vagueness of the instruction was not presented to the trial judge and that had the issue been presented, any error would have been harmless beyond a reasonable doubt. See Davis v. State, 620 So.2d 152 (Fla.1993). In February of 1994, certiorari was denied by the United States Supreme Court. See Davis v. Florida, 510 U.S. 1170, 114 S.Ct. 1205, 127 L.Ed.2d 552 (1994).


On May 4, 2000, Davis filed an amended rule 3.850 motion. On June 28, 2000, the trial court held a Huff2 hearing to determine whether an evidentiary hearing on any of Davis's claims was warranted. On October 4, 2001, the trial court issued an order reflecting its determination that an evidentiary hearing was required to address eight of Davis's claims.3 The trial court determined that Davis was not entitled to an evidentiary hearing on his remaining thirty-three claims. Subsequent to the evidentiary hearing, the trial court denied all of Davis's claims for postconviction relief, concluding that Davis had either failed to prove his claims or that there was insufficient evidence to support the claims and, therefore, the claims were meritless. This appeal followed.

I. Ineffective Assistance of Counsel at the Penalty Phase

Davis claims that his trial counsel, John Thor White (hereinafter "White"), provided ineffective assistance during the penalty phase. Following the United States Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we have previously held that

[a] claim of ineffective assistance of counsel, to be considered meritorious, must include two general components. First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence

Page 1105

in the outcome is undermined. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Downs v. State, 453 So.2d 1102 (Fla. 1984). A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986). The alleged ineffective assistance of counsel claim is a mixed question of law and fact, subject to plenary review based on Strickland. See Stephens v. State, 748 So.2d 1028, 1032 (Fla.1999). Under this standard, we conduct an independent review of the trial court's legal conclusions, while giving deference to the factual findings. See id. at 1032-33.

There is a strong presumption that trial counsel's performance was not ineffective. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. See id....

To continue reading

Request your trial
91 cases
  • Henretty v. Jones, Case No.: 3:14cv177/LAC/EMT
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • 12 November 2015
    ...failed to allege questions counsel should have asked and failed to identify any juror who was unqualified or biased); Davis v. State, 928 So. 2d 1089, 1117 (Fla. 2005) (the defendant's claim of ineffectiveness during voir dire failed where he failed to demonstrate any unqualified juror serv......
  • State v. Petric, CR-17-0505
    • United States
    • Alabama Court of Criminal Appeals
    • 14 August 2020
    ...and he or she may rely upon the services of a properly designated assistant, such as an investigator, to do so.’). Cf. Davis v. State, 928 So. 2d 1089, 1117 (Fla. 2005) (‘Trial counsel is not absolutely required to hire an investigator under all circumstances. Trial counsel is only required......
  • MILLER v. State of Fla., SC08-287.
    • United States
    • United States State Supreme Court of Florida
    • 9 August 2010
    ...that there was insufficient evidence to allow the jury to consider the factor for purposes of the advisory sentence. See Davis v. State, 928 So.2d 1089, 1132 (Fla.2005) (citing Pace v. State, 854 So.2d 167, 181 (Fla.2003) (quoting Bowden, 588 So.2d at In its sentencing order, the trial cour......
  • Hinson v. Tucker, Case No. 3:10cv480/RV/MD
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • 25 October 2011
    ...("[A] claim that could and should have been raised on direct appeal is procedurally barred.") (citing Davis v. State of Florida, 928 So.2d 1089, 1120 (Fla. 2005); Duckett v. State of Florida, 918 So.2d 224, 234 (Fla. 2005); Robinson v. State of Florida, 913 So.2d 514, 524 n. 9 (Fla. 2005)).......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT