Everett v. State

• Decision Date: 10 February 2011
• Docket Number: Nos. SC08–1636,SC09–646.,s. SC08–1636
• Citation: 54 So.3d 464
• Parties: Paul G. EVERETT, Appellant,v.STATE of Florida, Appellee.Paul G. Everett, Petitioner,v.Walter A. McNeil, Respondent.
• Court: Florida Supreme Court

54 So.3d 464

Paul G. EVERETT, Appellant,

v.STATE of Florida, Appellee.Paul G. Everett, Petitioner,

v.Walter A. McNeil, Respondent.

Nos. SC08–1636

SC09–646.

Supreme Court of Florida.

Oct. 14, 2010.As Revised on Denial of Rehearing Feb. 10, 2011.

Charles E. Lykes, Jr., Clearwater, FL, for Appellant/Petitioner.Bill McCollum, Attorney General, and Stephen R. White, Assistant Attorney General, Tallahassee, FL, for Appellee/Respondent.PER CURIAM.

Paul G. Everett appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851. Everett 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 expressed below, we affirm the postconviction court's order and deny the petition for a writ of habeas corpus.

I. BACKGROUND

Everett was convicted of first-degree murder and sentenced to death for the 2001 killing of Kelly M. Bailey. This Court set out the facts of the case on direct appeal:

[D]uring the late afternoon or early evening of November 2, 2001, appellant approached Kelly M. Bailey's home, looking for money and carrying a wooden fish bat or billy club. A stranger to the victim, appellant entered her home uninvited. When Ms. Bailey confronted him, appellant beat her, and as she tried to escape, knocked her down and raped her. He also forcefully twisted her neck, breaking a vertebra, which paralyzed her and caused her to suffocate to death. Before leaving, appellant removed his t-shirt, but he took with him some money from the victim's purse, his fish bat, her credit card, and her sweater. Outside the house, he discarded all but the cash. The victim suffered multiple injuries: a knocked-out tooth; a fractured nose; swollen eyelids; lacerations and bruising of her lips; a lacerated lip through which her teeth protruded; abrasions and carpet burns; a broken neck; and vaginal abrasion evidencing the use of force and consistent with nonconsensual sexual intercourse.

Appellant was indicted on charges of first-degree murder, burglary of a dwelling with a battery, and sexual battery involving serious physical force. Among other evidence at trial, the fish bat was traced to the appellant and his DNA matched the vaginal swabs from the victim on all thirteen genetic markers tested.

Everett v. State, 893 So.2d 1278, 1280 (Fla.2004). Moreover, regarding Everett's apprehension and confession to the crimes, this Court set forth the facts as follows.

Within hours of the murder, an Alabama bail bondsman, unaware of the murder but searching for Everett because he was a fugitive, found him in Panama City, Florida, and transferred him to Alabama authorities. On November 14, 2001, roughly two weeks after the murder, two Panama City Beach police officers investigating the case, having traced the wooden fish bat found near the crime scene to Everett, traveled to Alabama. They read Everett his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Everett agreed to talk. During the questioning, however, he abruptly stated, “I wish to have a lawyer present.... I mean I want a lawyer.” The officers immediately stopped their questioning.

Several days later, on November 19, the Panama City Beach Police requested an Alabama deputy to ask Everett to provide DNA samples for the Florida murder investigation. Everett consented both verbally and in writing. After the DNA swabs were taken, however, Everett advised the Alabama deputy that he had information for Florida authorities. The officer read Everett his Miranda rights, and Everett began his statement. At that point Sergeant Tilley of the Panama City Beach Police Department arrived to retrieve the DNA samples. On the record, Tilley noted that Everett had previously invoked his right to counsel, but had now contacted him desiring to provide information. Sergeant Tilley also read Everett his Miranda rights before Everett continued. At the conclusion of his statement, Everett said, “I do want to talk to a lawyer, but I did want to let you know to get you in the right direction.” Sergeant Tilley immediately stopped the interview. Appellant's November 19 statement was not offered at trial.

Finally, on November 27, Alabama authorities informed Everett that Sergeant Tilley was en route to serve an arrest warrant for the Florida murder. After Sergeant Tilley served the warrant, Everett asked to speak to him. At the outset of the interview, Everett acknowledged that he had previously invoked his right to have counsel present but had now asked to speak to Sergeant Tilley without an attorney present. In the ensuing statement, Everett confessed to the crimes.

Everett, 893 So.2d at 1283 (citation omitted).

The jury found Everett guilty on each charge and, following the penalty phase, unanimously recommended that Everett be sentenced to death for his first-degree murder conviction. Id. at 1280. The sentencing court imposed the death sentence. Id. at 1281. The sentencing court found three aggravating circumstances and five statutory and four nonstatutory mitigating circumstances applicable to the murder. Id. at 1280–81. Everett appealed his first-degree murder conviction and death sentence. This Court affirmed the conviction and sentence. Id. at 1288.

In March 2006, Everett filed a motion for postconviction relief. The motion raised twelve issues, some of which included subparts. In most of his claims, Everett asserted ineffective assistance by trial counsel, Assistant Public Defender Walter Smith. After holding a hearing on the motion pursuant to Huff v. State, 622 So.2d 982, 983 (Fla.1993), the postconviction court entered an order denying relief in part and granting an evidentiary hearing on Everett's claims of ineffective assistance of counsel. The postconviction court conducted an evidentiary hearing and, after considering the evidence presented, denied the motion.¹ In this appeal, Everett raises eleven issues.² In addition, Everett filed a petition for a writ of habeas corpus, raising seven claims.

II. MOTION FOR POSTCONVICTION RELIEF

On appeal from the denial of postconviction relief, Everett raises eleven issues. He raises four guilt-phase ineffective assistance of counsel claims, asserting that counsel was ineffective due to his (a) failure to adequately communicate with Everett; (b) failure to adequately present Everett's Miranda argument at the pretrial suppression hearing; (c) failure to adequately challenge forensic serological evidence and object to an unqualified witness opining on that evidence; and (d) failure to adequately represent Everett by presenting the lead police detective as the sole defense witness. Everett also raises four penalty-phase ineffective assistance of counsel claims, asserting that counsel was ineffective due to his (a) improper reliance upon Everett's alcoholic father for mitigation; (b) failure to present evidence that Everett had no male role model other than his alcoholic father and that Everett was denied a stable upbringing; (c) failure to consult with a psychological or psychiatric professional for purposes of establishing mitigation; and (d) failure to introduce evidence about Everett's drug use. Everett presents three additional arguments. He contends that the cumulative effect of the errors and omissions of counsel in the guilt and penalty phases warrants relief. He asserts that the postconviction court erred in summarily denying his claim that Florida's death penalty procedures violate due process. Finally, Everett argues that the postconviction court erred in summarily denying his challenge to Florida's lethal injection procedures.

A. Claims of Ineffective Assistance of Counsel

In order to prevail on a claim of ineffective assistance of counsel, a defendant must show both that trial counsel's performance was deficient and that the deficient performance prejudiced the defendant so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 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 687, 104 S.Ct. 2052; see also Cherry v. State, 659 So.2d 1069, 1072 (Fla.1995). For the second prong, “ Strickland places the burden on the defendant, not the State, to show a ‘reasonable probability’ that the result would have been different.” Wong v. Belmontes, ––– U.S. ––––, 130 S.Ct. 383, 390–91, 175 L.Ed.2d 328 (2009) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Strickland does not “require a defendant to show ‘that counsel's deficient conduct more likely than not altered the outcome’ of his penalty proceeding, but rather that he establish ‘a probability sufficient to undermine confidence in [that] outcome.’ ” Porter v. McCollum, ––– U.S. ––––, 130 S.Ct. 447, 455–56, 175 L.Ed.2d 398 (2009) (alteration in original) (quoting Strickland, 466 U.S. at 693–94, 104 S.Ct. 2052).

“[T]his Court's standard of review is two-pronged: (1) this Court must defer to the circuit court's findings on factual issues so long as competent, substantial evidence supports them; but (2) must review de novo ultimate conclusions on the deficiency and prejudice prongs.” Reed v. State, 875 So.2d 415, 421–22 (Fla.2004) (citing Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999) (“Thus, under Strickland, both the performance and prejudice prongs are mixed questions of law and fact, with deference to be given only to the lower court's factual findings.”)).

1. Guilt–Phase Claims of Ineffective Assistance of Counsel

a. Communication With Everett

i. Advising Everett While in Alabama Custody

First, Everett argues that attorney Smith was ineffective for failing to communicate with and advise Everett not to speak to law enforcement officers while Everett was in the ...