Farina v. State, SC04-1610.

• Citation: 937 So.2d 612
• Decision Date: 06 July 2006
• Docket Number: No. SC05-935.,No. SC04-1610.,SC04-1610.,SC05-935.
• Parties: Anthony Joseph FARINA, Appellant, v. STATE of Florida, Appellee. Anthony Farina, Petitioner, v. James R. McDonough, etc., Respondent.
• Court: United States State Supreme Court of Florida

937 So.2d 612

Anthony Joseph FARINA, Appellant, v. STATE of Florida, Appellee.

Anthony Farina, Petitioner, v. James R. McDonough, etc., Respondent.

No. SC04-1610.

No. SC05-935.

Supreme Court of Florida.

July 6, 2006.

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John W. Jennings, Capital Collateral Regional Counsel, Marie-Louise Samuels Parmer and Mark S. Gruber, Assistant CCR Counsel, Middle Region, Tampa, FL, for Appellant/Petitioner.

Charles J. Crist, Jr., Attorney General, Tallahassee, FL and Kenneth S. Nunnelley, Senior Assistant Attorney General, Daytona Beach, FL, for Appellee/Respondent.

PER CURIAM.

Anthony Farina, a prisoner under sentence of death, appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.851. Farina also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. As we explain below, we affirm the denial of Farina's postconviction motion and deny the habeas petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

After a Taco Bell restaurant closed early on May 9, 1992, Jeffrey and Anthony Farina confronted Michelle Van Ness, 17, and Derek Mason, 16, while the two employees were emptying trash.¹ Jeffrey had a .32-caliber pistol, Anthony carried a knife and rope, and both wore gloves.²

The Farinas ordered Van Ness and Mason into the restaurant, where they rounded up two other employees. Jeffrey held three employees at gunpoint while Anthony forced employee Kimberly Gordon, 18, to open the safe and hand over the day's receipts. The Farinas then tied the employees' hands, and Anthony forced them into a walk-in freezer. Jeffrey then shot Mason in the mouth. He also shot employee Gary Robinson, 19, in the chest and Van Ness in the head, and stabbed Gordon in the back. The Farinas fled the restaurant, but were arrested later that day. Van Ness died on May 10. The Farinas were charged with first-degree murder and six other offenses.

The jury found Anthony guilty of first-degree murder. At the penalty phase, the jury recommended death by a vote of seven to five. The trial judge followed the recommendation, finding five aggravators and minimal nonstatutory mitigation. On appeal, Anthony raised ten issues. We affirmed the convictions and sentences for the noncapital offenses, but we vacated the death sentence and remanded for a new sentencing proceeding because the trial court erroneously excused for cause a prospective juror who was qualified to serve. See Farina, 679 So.2d at 1157-58.

On remand, a joint penalty proceeding was held before a new jury. The jury unanimously recommended the death penalty for both Anthony and Jeffrey. Regarding Anthony, the trial judge found five aggravating factors, three statutory mitigating factors, and fifteen nonstatutory mitigating factors.³ Following the jury's recommendation, the judge concluded that the aggravating factors far outweighed the mitigating factors and imposed the death penalty.

Anthony appealed, but we denied all claims and affirmed the death sentence. In April 2003, Anthony filed a rule 3.851 motion for postconviction relief, raising thirteen claims. The circuit court denied relief on all of them. Anthony now appeals the court's order denying relief. He raises six issues, several of which contain additional subparts. He also petitions this Court for a writ of habeas corpus, raising four claims.

II. APPEAL OF DENIAL OF 3.851 RELIEF

Of Anthony's various claims, we address only a few. Many of his claims are procedurally barred or legally insufficient, and therefore we deny them without discussion.⁴ See Johnson v. State, 593 So.2d 206, 208 (Fla.1992) ("Issues which either were or could have been litigated at trial and upon direct appeal are not cognizable through collateral attack."). Claim 6 (cumulative errors deprived Anthony of a fair trial) presents a conclusory argument insufficient to state an issue. See LeCroy v. Dugger, 727 So.2d 236, 240 (Fla.1998) (upholding the summary denial of a postconviction motion because the defense alleged no facts to substantiate its conclusory claims of ineffective assistance of counsel); see also Randolph v. State, 853 So.2d 1051, 1063 n. 12 (Fla.2003) ("[T]he purpose of an appellate brief is to present arguments in support of the points on appeal.") (quoting Duest v. Dugger, 555 So.2d 849, 852 (Fla. 1990)). Other claims are clearly meritless.⁵ Finally, some claims were raised on direct appeal and we decided them against Anthony.⁶ We address Anthony's remaining three arguments, corresponding to claims 1(a), 1(b), and 3(c). These are: (A) that Jeffrey's life sentence is newly discovered evidence that warrants granting Anthony a new sentencing phase; (B) that the evidentiary hearing testimonies of four witnesses should exculpate him; and (C) that his counsel provided ineffective assistance for failing to investigate and present evidence of Jeffrey's history of aggression and violence and domination of Anthony.

A. Jeffrey's Life Sentence

Anthony first claims that Jeffrey's life sentence is newly discovered evidence that warrants granting him a new sentencing phase. During resentencing in 1998, a jury unanimously recommended the death penalty for Anthony and Jeffrey. We later vacated Jeffrey's death sentence and reduced it to life imprisonment without the possibility of parole for twenty-five years because he was 16 years old at the time of the crimes. See Farina v. State, 763 So.2d 302, 303 (Fla.2000) (citing Brennan v. State, 754 So.2d 1 (Fla.1999)).

The circuit court construed this argument as a proportionality claim, which we rejected on direct appeal. See Farina v. State, 801 So.2d 44, 55-56 (Fla.2001). Thus, any such argument here would be procedurally barred. See Turner v. Dugger, 614 So.2d 1075, 1078 (Fla.1993) (barring claims for postconviction relief "because they, or variations thereof, were raised on direct appeal").

Nevertheless, Anthony insists that Jeffrey's life sentence is "newly discovered evidence." To set aside a conviction based on newly discovered evidence,

[f]irst ... the evidence "must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence."

Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.

Robinson v. State, 865 So.2d 1259, 1262 (Fla.2004) (citation omitted) (quoting Jones v. State, 709 So.2d 512, 521 (Fla.1998)). "The two elements of a newly discovered evidence claim apply equally to the issue of `whether a life or death sentence should have been imposed.'" Ventura v. State, 794 So.2d 553, 571 (Fla.2001) (quoting Scott v. Dugger, 604 So.2d 465, 468 (Fla. 1992)). Therefore, to succeed on a claim that a death sentence must be set aside because of a codefendant's subsequent life sentence the defendant must show: "1) the life sentence could not have been known to the parties ... at the time of trial; and 2) the codefendant's life sentence would probably result in a life sentence for the defendant on retrial." Id. (quoting Groover v. State, 703 So.2d 1035, 1037 (Fla.1997)). In Scott, we held that a codefendant's subsequent life sentence constitutes newly discovered evidence which would permit collateral relief. 604 So.2d at 468-69. We further held that "in a death case involving equally culpable codefendants the death sentence of one codefendant is subject to collateral review under rule 3.850 when another codefendant subsequently receives a life sentence." Id. at 469.

Anthony meets the first prong of the newly discovered evidence test because we reduced Jeffrey's sentence two years after they were sentenced to death. See Farina, 763 So.2d at 303. However, Anthony fails to meet the second prong. Although Jeffrey's life sentence would normally constitute newly discovered evidence under Scott, we reduced his sentence because he was not eligible as a matter of law to receive the death penalty. See Farina, 801 So.2d at 56 (citing Brennan, 754 So.2d at 5-6). Thus, as we stated in Anthony's direct appeal, Jeffrey's life sentence "is irrelevant to Anthony's proportionality review because the aggravation and mitigation in their cases are per se incomparable." Id. Jeffrey's life sentence would not "probably result in a life sentence for [Anthony] on retrial." See Ventura, 794 So.2d at 571.

The dissent insists that the reason for Jeffrey's reduction in sentence is irrelevant. Dissenting op. at 636. It argues that "[t]here is simply no meaningful distinction between [Anthony's] claim here and the decision in Scott." Id. at 636. We disagree. The mitigating "evidence" that Anthony sought to introduce—Jeffrey's life sentence—was not relevant to Anthony's character, his background, or the circumstances of the crime. We recognize a defendant's right to "present any [mitigating] circumstance to a jury or judge for consideration as a reason to spare his life." Dissenting op. at 636 (citing Smith v. Texas, 543 U.S. 37, 44, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004)). As with all evidence, however, mitigating evidence must meet a threshold of relevance. Although the threshold is low, the evidence must tend "logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value." Id. (quoting Smith v. Texas, 543 U.S. 37, 44, 125 S.Ct. 400, 160 L.Ed.2d 303 (2004) (quoting Tennard v. Dretke, 542 U.S. 274, 284, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004))). In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the Supreme Court held that the sentencer must "not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Id. at 604,...