Fotopoulos v. State

• Decision Date: 19 December 2002
• Docket Number: No. SC00-1511, No. SC01-2824.
• Citation: 838 So.2d 1122
• Parties: Konstantinos X. FOTOPOULOS, Appellant, v. STATE of Florida, Appellee. Konstantinos X. Fotopoulos, Petitioner, v. Michael W. Moore, etc., Respondent.
• Court: Florida Supreme Court

838 So.2d 1122

Konstantinos X. FOTOPOULOS, Appellant, v. STATE of Florida, Appellee.

Konstantinos X. Fotopoulos, Petitioner, v. Michael W. Moore, etc., Respondent.

Nos. SC00-1511, SC01-2824.

Supreme Court of Florida.

December 19, 2002.

Rehearing Denied February 14, 2003.

George E. Tragos, Clearwater, FL; and Kevin T. Beck, Capital Collateral Counsel, and Leslie Anne Scalley, Capital Collateral Counsel, Capital Collateral Regional Counsel—Middle, Tampa, FL, for Appellant/Petitioner.

Richard E. Doran, Attorney General, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, FL, for Appellee/Respondent.

PER CURIAM.

Konstantinos X. Fotopoulos appeals an order of Circuit Court Judge Kim C. Hammond denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9) Fla. Const.

Facts and Procedural History

In 1989, Fotopoulos and Deidre Hunt, a woman with whom he was having an affair, went to an isolated rifle range with Kevin Ramsey. Ramsey was tied to a tree and, at the appellant's direction, was shot three times in the chest with a .22 rifle by Hunt. This portion of the shooting was videotaped by Fotopoulos. The taping of the events then stopped, and Fotopoulos shot Ramsey once in the head with an AK-47 assault rifle. Apparently, Ramsey was executed because he was attempting to blackmail Fotopoulos regarding alleged counterfeiting activities.

The videotape of the Ramsey killing was then used by Fotopoulos to force Hunt to arrange the murder of Fotopoulos's wife, Lisa. After failing to arrange the hiring of someone to kill Mrs. Fotopoulos three times, Hunt was finally successful in enlisting Bryan Chase to carry out the murder for $5000. On November 4, 1989, Chase entered the Fotopoulos home and shot Lisa once in the head. The shot was not fatal. After Lisa had been shot, Fotopoulos shot Chase repeatedly, killing him.

Fotopoulos and Hunt were eventually charged with two counts of first-degree murder, two counts of attempted first-degree murder, two counts of solicitation to commit first-degree murder, one count of conspiracy to commit first-degree murder, and one count of burglary of a dwelling while armed. Prior to testifying at Fotopoulos's trial, Hunt pled guilty to all charges and received two death sentences.

At trial, the State introduced evidence to demonstrate that Fotopoulos was the mastermind behind the events resulting in the deaths of both Ramsey and Chase and the near death of Lisa Fotopoulos. Significantly, the State constantly maintained in this proceeding that Hunt was dominated by Fotopoulos. The appellant/petitioner testified in his own defense and asserted his innocence throughout the trial. The jury found Fotopoulos guilty of all charges and recommended that he be sentenced to death for the murders. The trial court followed the jury's recommendation and sentenced Fotopoulos to death.

Fotopoulos asserted a total of sixteen claims in his direct appeal to this Court, all of which were rejected. See Fotopoulos v. State, 608 So.2d 784 (Fla.1992)

. On May 17, 1993, the United States Supreme Court denied Fotopoulos's petition for a writ of certiorari. Fotopoulos v. Florida, 508 U.S. 924, 113 S.Ct. 2377, 124 L.Ed.2d 282 (1993). Fotopoulos then filed and subsequently amended a timely motion to vacate the judgment against him and his sentence of death pursuant to Florida Rule of Criminal Procedure 3.850. On May 16, 1997, the trial court denied an evidentiary hearing on all claims presented in Fotopoulos's motion. On appeal to this Court, an order was entered denying relief on certain enumerated claims, but remanding the case for the presentation of a proper motion for relief to be submitted for consideration by the trial court. See Fotopoulos v. State, No. 91,227, 741 So.2d 1135 (Fla.1999).

Specifically, the Court held that Claims I, III, IV, V, IX, XII, and XV were not legally cognizable.¹Id. Pursuant to this Court's order, a hearing was held March 6 through 8, 2000. On June 15, 2000, Judge Hammond denied all relief. See Fotopoulos v. State, No. 89-7632 (Fla. 7th Cir. Ct. order filed June 15, 2000). Fotopoulos appealed, asserting eight claims.² Subsequently, on December 21, 2001, Fotopoulos petitioned this Court for a writ of habeas corpus, asserting five additional claims.³

Rule 3.850 Postconviction Proceeding

In his first cognizable claim,⁴ Fotopoulos asserts that trial counsel's performance was constitutionally deficient because he failed to obtain a transcript of testimony given by Fotopoulos at an indigency hearing that was subsequently used to impeach him at trial. As it is clear from the record that Fotopoulos's counsel did not have a transcript of the hearing at trial, he asserts that this is evidence of substandard investigation and preparation by Fotopoulos's attorney. In addition, Fotopoulos asserts that even after his trial counsel was given a copy of the hearing transcript at trial, he failed to request a necessary continuance to assess the import of the document.

Under the standard announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),

[a] claim of ineffective assistance of counsel, to be considered meritorious, must include two general components.

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). Importantly, a court considering a claim of ineffectiveness of counsel "need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied." Id.

In the instant case, it is clear that Fotopoulos cannot satisfy the Strickland prejudice element. At trial, Fotopoulos adamantly insisted that he be permitted to testify. As a result, the damaging evidence from his indigency hearing was certain to be used to impeach him during the State's cross-examination, regardless of his attorney's pretrial investigation, advice, or trial tactics. Therefore, even if the preparation and conduct of appellant's trial counsel were deficient, they were still irrelevant to the impeachment of Fotopoulos through the use of his prior testimony. This impeachment was unavoidable, even by a superb attorney.

Next, Fotopoulos argues that his attorney rendered constitutionally deficient assistance of counsel because he failed to properly prepare for trial through a full investigation for evidence that could have been used either to impeach the testimony of Deidre Hunt or refute the State's theory that Deidre Hunt was dominated by Fotopoulos throughout the time period surrounding the commission of the murders. The central theory advanced by the State at trial was that Deidre Hunt was dominated by Fotopoulos, and that he masterminded the entire chain of events which left Ramsey and Chase dead (and Lisa Fotopoulos severely wounded). Through posttrial investigation, Fotopoulos has identified information which, he asserts, should have been used at trial to rebut this theory. The evidentiary material cited by Fotopoulos falls into two major categories; we address each in turn.

Fotopoulos cites portions of the State's arguments, as well as evidence submitted at Deidre Hunt's sentencing hearing, to show that the picture of the crimes the State painted during that proceeding was different from the rendition it presented to Fotopoulos's jury. During Hunt's prosecution, the State did not contend that she was dominated by Fotopoulos; instead, it argued and introduced evidence indicating that she had participated in the murders voluntarily to gain a secure future with Fotopoulos.

When Fotopoulos's trial counsel was asked about the information revealed at Hunt's sentencing hearing and his decision not to use it at trial, this exchange occurred:

Q: When you were representing Mr. Fotopoulos at trial, was the State trying to prove that Mr. Fotopoulos controlled and dominated Deidre Hunt?

A: I think to a certain extent, yes.

Q: Was Deidre Hunt's sentencing phase conducted prior to Mr. Fotopoulos's trial?

A: Yes, it was.

Q: And did you attend that sentencing phase?

A: Yes, I did.

Q: Now, at that sentencing phase, was the State trying to prove that Dee Hunt was not dominated and controlled by Mr. Fotopoulos?

A. Yes. I think that they focused more on Deidre Hunt's own volitional acts, yes.

. . . .

Q: At that time, why did you not present witnesses that they had called at Deidre Hunt's penalty phase to show that Deidre Hunt was not being abused and assaulted and intimidated and coerced?

A: ... If you're asking for my reasoning as to why I didn't bring in any of that other evidence ... it wouldn't have been as effective as just clearly watching and listening to the videotape of Deidre Hunt telling her story.

Under the Strickland v. Washington test, proper review requires this Court to "reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at that time." 466 U.S. at 689, 104 S.Ct. 2052. Additionally, we have stated that "[t]he standard is not how present counsel would have proceeded, in hindsight, but rather whether there was both a deficient performance and a reasonable probability of a different result." Cherry v. State, 659 So.2d 1069, 1073 (Fla.1995).

When considering Fotopoulos's ineffective assistance of counsel claims, the trial court concluded:

[T]he defendant's assertion that trial counsel was ineffective for not adequately investigating and utilizing evidence of Diedre Hunt's background and "domination" is also rejected.

...