Downs v. State, 64184

Decision Date21 June 1984
Docket NumberNo. 64184,64184
PartiesErnest Charles DOWNS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Elizabeth L. White of the Law Offices of William J. Sheppard, Jacksonville, and Maurice N. Nessen, Michael H. Barr and Leslie Nicholson of Kramer, Levin, Nessen, Kamin & Frankel, New York City, for appellant.

Jim Smith, Atty. Gen. and Raymond I. Marky, Asst. Atty. Gen., Tallahassee, for appellee.

ALDERMAN, Chief Justice.

Ernest Downs appeals the order of the trial court denying his motions to vacate his convictions and sentences. We affirm the order of the trial court and, among other things, hold that Downs was not denied effective assistance of counsel at either the guilt or penalty phase of his trial.

Downs had been approached by Barfield with an offer of five thousand dollars to kill Harris. He accepted the offer and, with the assistance of Johnson, killed Harris. Downs was convicted of first-degree murder and of conspiracy to commit first-degree murder. After a jury recommendation that the death sentence be imposed, Downs was sentenced to death for murder and thirty years for the conspiracy. Upon appeal, finding no reversible error, we affirmed his convictions and sentences. Downs v. State, 386 So.2d 788 (Fla.), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 238 (1980).

Subsequently, Downs filed two motions under Florida Rule of Criminal Procedure 3.850 to vacate his convictions and sentences. After evidentiary hearings, the trial court denied these motions and in its order dealt with each of the points raised by Downs.

On appeal from that order, Downs now argues that a statement made by the prosecutor to the trial judge at sentencing tainted the sentencing process; that sentencing him to death violates the rule for proportionality of sentences; that he should get a new sentencing hearing because the prosecutor informed the jury that Barfield was going to trial for first-degree murder; that he should not have been sentenced to death because the manner in which immunity was awarded to Johnson cast a shadow on the reliability of Johnson's testimony; that his death sentence should be vacated because of erroneous jury instructions on aggravating and mitigating factors; that the trial court erred in denying him reasonable expenses to employ experts to prove that the death penalty is being imposed unconstitutionally in Florida; that the jury that convicted him was not fair and impartial and was "death qualified" under Witherspoon standards; and that his statement implicating him in the murder was not voluntary and that there was insufficient evidence upon which to convict him. We will not consider these issues because they were or could have been raised on direct appeal and are not proper grounds for post-conviction collateral proceedings.

Downs raises several other points which are appropriate grounds for collateral attack. He argues that he was denied effective assistance of counsel at the guilt and penalty phases of his trial; that the contingent fee contract between him and his defense counsel created a conflict of interest which violated his right to effective assistance of counsel; and that his sentence should be vacated because his counsel was privately reprimanded by the Bar for conduct in this case. Downs also alleges several Brady 1 violations. Finally, he maintains that he is entitled to a de novo post-conviction hearing before a new judge because the present trial judge was biased against him. We find no merit to any of these claims and hold that the trial court ruled correctly.

Downs' claims of ineffective assistance of counsel at the guilt and penalty phases of his trial, including his assertion of conflict of interest caused by the contingent fee contract, are the only issues that warrant further discussion.

Downs argues that his trial counsel did not provide him reasonably effective assistance of counsel at the penalty phase of his trial because counsel did not adequately "humanize" him, did not present vital details, and did not offer answers to the prosecution's charges of aggravating circumstances although counsel had available much information relating to Downs' background which he could have employed. He argues that he was denied effective assistance of counsel at the guilt phase of his trial because his counsel made only a meager or misdirected pretrial investigation that focused on an unreal theory for a defense and failed to present available evidence. He argues that he is entitled to a new trial because there is a likelihood that the failure of his trial counsel to present a good defense affected the outcome of his case. He points to the testimony of his expert that no competent counsel would have acted in this manner in a death case.

The state responds that Downs is quarreling with the tactical decisions of counsel and that the decision as to what evidence to present to "humanize" Downs was a tactical decision made by his counsel; that counsel, in fact, did present evidence on Downs' behalf at the penalty phase; and that he could have presented additional evidence but did not because in his judgment much of this evidence was negative and would hurt Downs' chances before the jury. The state further asserts that trial counsel introduced evidence to disprove the factor that the homicide was heinous, atrocious, or cruel; introduced evidence to weaken other aggravating circumstances; and introduced evidence of mitigating factors. The state also argues that counsel conducted a reasonable investigation and that his failure to present the withdrawal and alibi defenses was a matter of trial strategy and that the opinions of Downs' expert were not compelling because he did not review the pretrial depositions or pretrial work of trial counsel and did not fully consider why trial counsel took certain actions in the course of the trial.

At the time the trial court denied Downs' motions to vacate based on claims of ineffective assistance of counsel, our decision in Knight v. State, 394 So.2d 997 (Fla.1981), established the test to be applied in evaluating the merits of claims of ineffective assistance of counsel. In Knight, we adopted a four-step analysis to determine whether a defendant has been provided reasonably effective counsel. We announced that our test, adopted from United States v. Decoster, 624 F.2d 196 (D.C.Cir.1976), "provides a means to discover a true miscarriage of justice and yet does not place the judiciary in the role of interfering with defense counsel's legal and tactical conduct at trial or on appeal." Knight v. State, 394 So.2d at 1000-01. Knight requires that the defendant, in an appropriate pleading, identify the specific omission or overt act upon which the claim of ineffective assistance of counsel is based; that the defendant show that the specific omission or act was a substantial and serious deficiency measurably below that of competent counsel; that the defendant show that the deficiency, under the circumstances, was so substantial as to probably have affected the outcome of the proceedings; and that, if these three factors are established, the state still has the opportunity to rebut the claim of ineffective assistance by showing beyond a reasonable doubt that there was no prejudice.

The trial court correctly determined that Downs has failed to establish that trial counsel was ineffective at either the guilt or penalty proceedings and that the record and evidence reflect that trial counsel conducted a reasonable pretrial investigation and that his decisions now being challenged were strategic trial matters.

In support of its conclusions, the trial court found:

The evidence before this Court is that trial counsel was aware of and explored all possible--and probable--defenses with the Defendant prior to and during the trial. The attorney participated in over thirty (30) depositions or sworn statements of witnesses, filed discovery and other pre-trial Motions, obtained costs for employment of a private investigator and employed such an investigator to explore possible defenses, reviewed depositions taken by other attorneys of co-defendants, conducted legal research and talked with other attorneys representing co-defendants.

After a review of all the evidence, the claims that counsel was ineffective because he did not offer proof of an alibi or other defense are not supported by the evidence.

On the issue of alibi, the first mention of this important matter by the grandmother of the Defendant to the attorney was in late October 1977. At a sworn deposition taken December 6, 1977, the grandmother denied knowing where the Defendant was at the time of the murder. On December 5, 1977, Sharon Darlene Perry, a sister of the Defendant, was deposed. She testified that she did not have information where the Defendant was and that no one told her where he was.

The attorney had talked with these witnesses in August 1977. There was no mention of alibi by the relatives nor the Defendant until shortly before trial and then this was specifically denied by the grandmother at time of her deposition in 1977.

On the issue of not putting the Defendant on the stand or presenting a defense of "withdrawal," it appears clear that this was a strategic decision of counsel. The "withdrawal" defense as raised by present counsel appears tenuous and legally insufficient.

On the issue of presenting other witnesses for defense, trial counsel did attempt at the time of trial to offer proof that other persons had a motive to kill the deceased. This evidence was proffered to the Court and ruled inadmissible. This was reviewed at the time of appeal. The fact that family members were not presented as to the life history and good character of the Defendant in consideration of the State's evidence at trial and the right to two arguments to the jury by defense appears strictly a judgment call.

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