Dufour v. State

Decision Date14 April 2005
Docket Number No. SC04-232., No. SC03-1326
Citation905 So.2d 42
PartiesDonald W. DUFOUR, Appellant, v. STATE of Florida, Appellee. Donald W. Dufour, Petitioner, v. James V. Crosby, Jr., Respondent.
CourtFlorida Supreme Court

Bill Jennings, Capital Collateral Regional Counsel — Middle, Marie-Louise Samuels Parmer, Assistant CCRC-M, Tampa, FL, for Appellant/Petitioner.

Charles J. Crist, Jr., Attorney General, Tallahassee, FL and Scott A. Browne, and Kimberly Nolen Hopkins, Assistant Attorneys General, Tampa, FL, for Appellee/Respondent.


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


Donald Dufour was convicted of the first-degree murder of Zack Miller. See Dufour v. State, 495 So.2d 154, 156 (Fla. 1986). The jury unanimously recommended the death penalty. See id. at 157. Following that recommendation, the trial court imposed a sentence of death for the first-degree murder charge. See id. On direct appeal, the Court affirmed Dufour's conviction and sentence. See id. at 156. There, the Court detailed the facts surrounding the murder:

The evidence at trial established the following scenario. State witness Stacey Sigler, appellant's former girlfriend, testified that on the evening of September 4, 1982, the date of the murder, appellant announced his intention to find a homosexual, rob and kill him. He then requested that she drop him off at a nearby bar and await his call. About one hour later, appellant called Sigler and asked her to meet him at his brother's home. Upon her arrival, appellant was going through the trunk of a car she did not recognize, and wearing new jewelry. Both the car and the jewelry belonged to the victim.
Appellant had met the victim in the bar and driven with him to a nearby orange grove. There, appellant robbed the victim and shot him in the head and, from very close range, through the back. Telling Sigler that he had killed a man and left him in an orange grove, he abandoned the victim's car with her help.
According to witness Robert Taylor, a close associate of appellant's, appellant said that he had shot a homosexual from Tennessee in an orange grove with a .25 automatic and taken his car. Taylor, who testified that he had purchased from appellant a piece of the stolen jewelry, helped appellant disassemble a .25 automatic pistol and discard the pieces in a junkyard.
State witness Raymond Ryan, another associate of appellant's, also testified that appellant had told him of the killing, and that appellant had said "anybody hears my voice or sees my face has got to die." Noting appellant's possession of the jewelry, Ryan asked him what he had paid for it. Appellant responded "You couldn't afford it. It cost somebody a life." Ryan further testified that he had seen appellant and Taylor dismantle a .25 caliber pistol.
Henry Miller, the final key state's witness, testified as to information acquired from appellant while an inmate in an isolation cell next to appellant's. In return for immunity from several armed robbery charges, Miller testified that appellant had told him of the murder in some detail, and that appellant had attempted to procure through him witness Stacey Sigler's death for $5,000.
At the penalty phase of the trial, Taylor testified over objection to the details of a Mississippi murder for which appellant had been convicted of first-degree murder. The jurors unanimously recommended death and appellant was so sentenced.

Id. at 156-57.

In sentencing Dufour to death, the trial judge found four aggravating circumstances — that Dufour was previously convicted of another capital felony; the murder was committed while Dufour was engaged in the commission of armed robbery; the murder was committed for the purpose of avoiding or preventing lawful arrest; and the murder was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification. The trial judge found no mitigation. On direct appeal, this Court upheld Dufour's conviction and sentence. See id. at 156.

On direct appeal, Dufour asserted sixteen issues. See id. at 157-64. Although this Court denied fifteen of the claims, we held that the trial court erroneously found that the murder had been committed for the purpose of avoiding a lawful arrest, section 921.141(5)(e), Florida Statutes (1981), because the evidence failed to establish the requisite proof of an intent to avoid arrest or detection through the killing. See id. at 163. Despite the trial court's erroneous finding that the murder was committed for the purpose of avoiding a lawful arrest, the sentence of death was upheld in light of the three remaining aggravating factors and the complete lack of mitigation. See id.

Dufour timely filed his amended motion for postconviction relief. A hearing was held pursuant to Huff v. State, 622 So.2d 982 (Fla.1993), after which the lower court ordered an evidentiary hearing on the following claims: (1) ineffective assistance of pretrial and guilt phase counsel; (2) due process violations arising from the court-appointed psychiatrist's failure to conduct appropriate tests for organic brain damage and mental illness; and (3) evidence of the State's bad faith in failing to preserve evidence. The trial court determined that Dufour was not entitled to an evidentiary hearing on his remaining claims.

The evidentiary hearing was held on November 18, 2002, through November 21, 2002. Dufour presented the testimony of his brother, George Dufour; Raymond Dvorak, Dufour's trial counsel; Dr. Jonathan Lipman, a mental health expert; Dr. Sherry Burg-Carter, a forensic psychologist; and Dr. Robert Berland, a mental health expert. The State presented Dr. Sidney Merin, a mental health expert; Assistant State Attorneys, Dorothy Sedgwick and Frank Tamen; Diane Payne, lead detective in Dufour's case; William Vose, general counsel for the Orange County Sheriff's Office; and Paul Cohen, another of Dufour's trial counsel.

On May 30, 2003, the trial court issued an order denying Dufour's claims. In his appeal of the trial court's decision, Dufour presents ten claims.1 Dufour's appeal is accompanied by a petition for writ of habeas corpus in which Dufour advances four claims for relief.2

3.850 APPEAL

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), this Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:

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 proceeding that confidence in the outcome is undermined.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986). Ineffective assistance of counsel claims present a mixed question of law and fact and therefore are subject to plenary review based on the Strickland test. See Stephens v. State, 748 So.2d 1028, 1032 (Fla.1999)

. Under this standard, the Court conducts an independent review of the trial court's legal conclusions while giving deference to the trial court's factual findings. See id.

There is a strong presumption that trial counsel's performance was not ineffective. Strickland provides: "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . ." 466 U.S. at 689, 104 S.Ct. 2052. "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S.Ct. 2052. The defendant alone carries the burden to overcome the presumption of effective assistance: "[T]he defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689, 104 S.Ct. 2052. The United States Supreme Court explained that

a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.

Id. at 690, 104 S.Ct. 2052; see also Asay v. State, 769 So.2d 974, 984 (Fla.2000)

("[T]he defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional standards and was not a matter of sound trial strategy."). Finally, "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689,

104 S.Ct. 2052. It is under this legal framework that Dufour's claims will be addressed.

Failure to Investigate and Present a Voluntary Intoxication Defense

Dufour asserts that trial counsel was ineffective for failing to investigate and present a voluntary intoxication defense, and that if counsel had done so, it could have been demonstrated that Dufour lacked the requisite specific intent to commit premeditated murder. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects...

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