Ferrell v. State, SC02-1498.
| Decision Date | 16 June 2005 |
| Docket Number | No. SC03-218.,No. SC02-1498.,SC02-1498.,SC03-218. |
| Citation | 918 So.2d 163 |
| Parties | Jack Dempsey FERRELL, Appellant, v. STATE of Florida, Appellee. Jack Dempsey Ferrell, Petitioner, v. James V. Crosby, Jr., etc., Respondent. |
| Court | Florida Supreme Court |
Appeal from the Circuit Court, Orange County, No. CR 92-4096, Maura T. Smith, J.
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Bill Jennings, Capital Collateral Regional Counsel — Middle, Carol C. Rodriguez and Robert T. Strain, Assistant CCR Counsels, Tampa, FL, for Appellant/Petitioner.
Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, FL, for Appellee/Respondent.
Jack Dempsey Ferrell, a prisoner under sentence of death, appeals an order of the trial 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 below, we affirm the denial of postconviction relief and deny the petition for habeas corpus.
Ferrell was charged with first-degree murder for the death of his girlfriend Mary Esther Williams. Ferrell and Williams lived together in an Orlando apartment and their relationship was marked by verbal and physical confrontations. During an argument overheard by neighbors on April 18, 1992, Ferrell shot Williams in the head twice. As he exited their apartment, Ferrell told one of the neighbors to call the police because he had "just killed my old lady upstairs." Williams died from the brain injury ten days later. See Ferrell v. State, 653 So.2d 367, 369 (Fla.1995).
The jury found Ferrell guilty of first-degree murder and recommended a death sentence by a vote of ten to two. The judge followed the jury's recommendation and sentenced Ferrell to death. The judge found one aggravating factor, a prior violent felony conviction which was based on a second-degree murder conviction for the killing of a former girlfriend under strikingly similar circumstances. The judge failed to include an evaluation of the mitigating factors proposed by Ferrell.
On appeal, Ferrell raised five claims.1 This Court found no merit to Ferrell's claims regarding the admission of evidence of a collateral crime, the failure to appoint co-counsel, and the denial of requested special jury instructions. Id. at 369-70. However, we determined that the sentencing order was inadequate as to the requisite findings required under section 921.141(3), Florida Statutes (Supp.1992).2 Thus, we remanded the case to the trial court for a new sentencing order in which each of the statutory and nonstatutory mitigating factors proposed by Ferrell was evaluated as provided in Campbell v. State, 571 So.2d 415 (Fla.1990), receded from on other grounds by Trease v. State, 768 So.2d 1050, 1055 (Fla.2000). In light of this remand, the Court declined to address the merits of Ferrell's proportionality claim pending receipt of a new sentencing order. Ferrell, 653 So.2d at 370-71.
On remand, the trial court once again imposed a death sentence, finding that the one aggravating factor outweighed the six nonstatutory mitigating factors.3 On appeal, Ferrell argued that the trial court erred in imposing sentence. Ferrell v. State, 680 So.2d 390 (Fla.1996). Ferrell claimed the judge had not made the required independent determination of the mitigating and aggravating circumstances, but simply changed his mind at the request of the state attorney, thereby delegating to the State the judge's responsibility to make findings on mitigation. Ferrell also argued that the trial court overlooked the testimony of the defense mental health expert because the sentencing order rejected the statutory mental mitigators "based on testimony from the guilt phase of trial." According to Ferrell, the defense expert testified only in the penalty phase and thus his testimony was not considered in the assessment of mitigation.
However, this Court found no error in considering the expert's testimony because the record showed that the expert testified at both the guilt and penalty phases and that the expert's brief penalty phase testimony "encapsulated his vastly more extensive ... and detailed guilt phase testimony." Id. at 391. The Court also rejected Ferrell's claim that his death sentence was disproportionate in light of the single aggravating circumstance found. Id. at 391-92. We concluded that the sentence was not disproportionate in light of the similar nature of his prior violent felony conviction4 and the slight weight assigned to the mitigating circumstances. Id. at 391-92. Accordingly, the Court affirmed Ferrell's death sentence.
Ferrell filed an initial postconviction motion pursuant to Florida Rule of Criminal Procedure 3.850 in January 1998, raising thirty-two claims.5 He filed an amended 3.850 motion with the trial court in June 2000, raising sixteen claims.6
The trial court held a Huff7 hearing in August 2000 and granted an evidentiary hearing on a number of Ferrell's claims. These claims included: ineffective assistance of counsel in failing to impeach or effectively cross-examine a witness; ineffective assistance of counsel in the presentation of mitigating evidence based on counsel's failure to adequately investigate mitigating evidence and failure to present lay witnesses, expert social work testimony, and medical evidence of brain damage during the penalty phase; denial of an individualized sentencing because the trial court refused to find the statutory mental mitigators based on off-the-record representations by the state attorney and that trial counsel rendered ineffective assistance in this regard; and judicial bias. When Ferrell's attorneys informed the court that they would be calling the sentencing judge, Circuit Judge Daniel P. Dawson, as a witness at the evidentiary hearing, Judge Dawson recused himself. Circuit Judge Maura T. Smith was assigned to the case. The evidentiary hearing was conducted on February 7-8, 2001. A second hearing was conducted on September 4, 2001, on the issue of medical testing. Final documents in support of Ferrell's claims were filed on April 17, 2002.
On May 23, 2002, the trial court entered an order denying postconviction relief. All of the claims in the initial motion were denied without an evidentiary hearing and all but two of the claims were found to be insufficiently pled. The trial court concluded that Ferrell's claim that he was being denied effective postconviction representation due to lack of funding and understaffing of the Office of Capital Collateral Regional Counsel had not been pled with specificity, nor had he shown how he had been prejudiced. Further, claims of ineffective assistance of postconviction counsel are not a valid basis for relief. The trial court found the public records claim to be moot because all of Ferrell's outstanding public record issues had been resolved in 2000 before his amended motion was filed. The trial court also denied relief on all sixteen claims raised in Ferrell's amended motion.
Ferrell has appealed the denial of his postconviction motion to this Court. He has also filed a petition for a writ of habeas corpus with this Court.
Ferrell has appealed the denial of postconviction relief to this Court, raising three issues. He contends that (1) the trial court erred in denying his claim of ineffective assistance of counsel during the penalty phase based on counsel's alleged failure to adequately investigate, prepare, and present mitigation evidence through lay witness testimony and expert social work testimony; (2) the trial court erred in denying relief based on trial counsel's failure to seek additional expert assistance in determining the extent of Ferrell's brain damage; and (3) he was denied an individualized sentencing and reasoned weighing of the aggravating and mitigating circumstances in his resentencing proceeding. We address each claim in turn below.
In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that trial counsel's performance was deficient and that the deficient performance prejudiced the defendant so as to deprive the defendant of a fair trial. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (). In reviewing counsel's performance, the reviewing court must be highly deferential to counsel, and in assessing the performance, every effort must "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." Strickland, 466 U.S. at 689, 104 S.Ct. 2052; see also Rivera v. Dugger, 629 So.2d 105, 107 (Fla.1993). 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." Strickland, 466 U.S. at 687, 104 S.Ct. 2052; see also Cherry v. State, 659 So.2d 1069, 1072 (Fla.1995). For the prejudice prong, the reviewing court must determine whether there is a reasonable probability that, but for the deficiency, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. See Strickland, 466 U.S. at 695, 104 S.Ct. 2052; see also Valle v. State, 705 So.2d 1331, 1333 (Fla.1997). "Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Stricklan...
To continue reading
Request your trial
-
Taylor v. Sec'y
...the investigation resulting in counsel's decision not to introduce certain mitigation evidence was itself reasonable." Ferrell v. State, 918 So. 2d 163, 170 (Fla. 2005) (citing Wiggins, 539 U.S. at 523; Strickland, 466 U.S. at 690-91). "When making this assessment, 'a court must consider no......
-
Toney v. Sec'y, Fla. Dep't of Corr.
...not to call these witnesses. The Court finds that Defendant has not met his burden as to this part of the sub-claim. SeeFerrell v. State, 918 So. 2d 163, 173-74 (Fla. 2005) (concluding "Ferrell 'opted to forego' the presentation of such evidence at the scheduled evidentiary hearing and thus......
-
Lukehart v. State
...that was used as an aggravator. This claim is procedurally barred, as it was raised and rejected on direct appeal. See Ferrell v. State, 918 So.2d 163, 178 (Fla.2005) (citing Smith v. State, 445 So.2d 323, 325 (Fla.1983) (“Issues which either were or could have been litigated at trial and u......
-
Pham v. State , SC08–2355.
...“[W]e have rejected claims that Ring requires the aggravating circumstances to be alleged in the indictment.” Ferrell v. State, 918 So.2d 163, 180 (Fla.2005). A defendant is not entitled to notice of every aggravator in the indictment because the aggravators are clearly listed in the statut......