Freeman v. State, No. SC79651

CourtUnited States State Supreme Court of Florida
Writing for the CourtPER CURIAM.
Citation761 So.2d 1055
PartiesJohn D. FREEMAN, Appellant, v. STATE of Florida, Appellee. John D. Freeman, Petitioner, v. Harry K. Singletary, etc., Respondent.
Docket Number No. SC79651, No. SC89199.
Decision Date08 June 2000

761 So.2d 1055

John D. FREEMAN, Appellant,
v.
STATE of Florida, Appellee.
John D. Freeman, Petitioner,
v.
Harry K. Singletary, etc., Respondent

Nos. SC79651, SC89199.

Supreme Court of Florida.

June 8, 2000.


761 So.2d 1058
Terri L. Backhus of Backhus & Izakowitz, P.A., Tampa, Florida, for Appellant/Petitoner

Robert A. Butterworth, Attorney General, and Barbara J. Yates, Assistant Attorney General, Tallahassee, Florida, for Appellee/Respondent.

PER CURIAM.

John D. Freeman, a death row inmate, appeals an order entered by the trial court denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, and he petitions this Court for a writ of habeas corpus. We have jurisdiction. See Art. V, § 3(b)(1),(9), Fla. Const. The cases have been consolidated. For the reasons stated below, we remand for an evidentiary hearing on Freeman's claims that defense counsel was ineffective during the penalty phase of this capital proceeding. In all other respects we affirm the trial court's denial of 3.850 relief, and we deny habeas relief.

STATEMENT OF THE CASE AND FACTS1

John D. Freeman (Freeman) was convicted of first-degree felony murder for the 1986 killing of Leonard Collier (Collier). Freeman was sentenced to death, and both the conviction and sentence were affirmed on appeal. See Freeman v. State, 563 So.2d 73 (Fla.1990). Collier caught Freeman in the act of burglarizing his home. Freeman claimed that Collier pointed a gun at him and threatened to shoot him to prevent his escape. The two struggled over the gun and fell outside into the front yard. When Freeman obtained possession of the gun, he used the gun to repeatedly strike Collier in the head ten to twelve times. Collier died from the head wounds.

During the guilt phase of the trial, defense counsel made several objections to

761 So.2d 1059
the prosecutor's closing argument. First, defense counsel objected arguing the prosecutor was trying to get the jury to use this case to send a message to the community when he argued the Legislature had enacted the felony murder law to prevent violent felonies. The judge overruled the objection. Second, defense counsel objected after the prosecutor made several comments that defense counsel had the "gall" and the "nerve" to argue self-defense. This objection was also overruled. Third, defense counsel objected when the prosecutor argued defense counsel's request for a manslaughter conviction was an insult to the jurors' intelligence. The judge sustained this objection and told the jurors he would instruct them on the law at the conclusion of closing arguments, but denied the motion for a mistrial

The judge agreed to give the jury a special verdict form that included a place under first-degree murder where the jury could check premeditated murder or felony murder. Second and third-degree murder did not have places to check whether they were felony murder. The jury was confused by the instructions and asked the judge to clarify them. The judge referred the jury to the page of the instructions that would answer its question, but the jury was still confused. They sent out the same question again. The judge called the jury in and explained that there was no legal reason for distinguishing between first-degree premeditated murder and first-degree felony murder. He further explained the difference between first-degree felony murder and third-degree felony murder would depend on whether the underlying felony was burglary or assault. After the jury had been excused, defense counsel objected because the judge failed to reread all the other possible offenses when he reinstructed the jury. In response, the judge recalled the jurors and reinstructed that he was not trying to influence them in any way and that they should reread all of the instructions, including the other possible offenses. The judge then excused the jury and asked defense counsel if that was satisfactory. Defense counsel responded, "Yes sir. Thank you." The jury convicted Freeman of first-degree felony murder.

Prior to the penalty phase of the trial, defense counsel requested a continuance because he had been unable to locate Mr. Sorrells, Freeman's best friend, who would testify to certain nonstatutory mitigation. This testimony would have included Freeman's abusive childhood, his dedication to his work as a carpenter, and his love for children. The judge denied the request for a continuance because defense counsel could not offer sufficient proof that a continuance would produce the witness and because the witness had previously given similar testimony under oath in the penalty phase of a separate first-degree murder trial, the Epps trial. The judge allowed Mr. Sorrells' former testimony to be read to the jury.

During the penalty phase, the prosecutor argued four statutory aggravating factors: (1) Freeman had previously been convicted of the crimes of first-degree murder, armed robbery, and burglary of a dwelling with an assault; (2) the murder occurred while Freeman was committing a burglary of a dwelling; (3) the murder was committed for pecuniary gain; and (4) the murder was heinous, atrocious, and cruel. The State presented Ms. Epps, the wife of the other murder victim, to testify about Freeman's previous murder conviction. As preliminary background the prosecutor asked Ms. Epps her occupation and if she had any children. After Ms. Epps responded that she did have children, defense counsel objected and moved for a mistrial. He argued that the prosecutor had put Ms. Epps on the stand to conjure sympathy for the victims and that it was improper for the prosecutor to inform the jury that Mr. Epps had surviving children. The judge sustained the objection and instructed the jury to disregard the remarks, but he denied the motion for a mistrial. Ms. Epps testified that Freeman

761 So.2d 1060
had previously been convicted for stabbing her husband six times when he came home during a similar burglary. In his final remarks to the jury, the prosecutor argued that Freeman claimed to love children, but he could not help the Epps children

Defense counsel did not present any statutory mitigation and very limited non-statutory mitigation. Freeman's mother and brother testified that he was abused by his stepfather, possessed artistic ability, and particularly enjoyed playing with children. A clinical psychologist testified that Freeman had a below average I.Q. and a fourth grade achievement level. Although Sorrells did not testify in person at the penalty phase of this case, Sorrells' testimony from the penalty phase in the Epps trial was read to the jury. Sorrells' prior testimony was similar to the mitigation evidence presented by Freeman's mother and brother.

The jury, after only fifteen minutes of deliberations, recommended death by a nine-to-three vote. Thereafter, the judge imposed the death sentence. In his sentencing order, the judge found three aggravating circumstances: (1) Freeman had previously been convicted of the crimes of first-degree murder, armed robbery, and burglary of a dwelling with an assault, all of which had been committed just three weeks before Collier's murder; (2) Collier's murder occurred while Freeman was committing a burglary of a dwelling; and (3) Collier's murder was committed for pecuniary gain. The judge found the second and third aggravating factors merged into one. Although the judge did not find any statutory mitigation, he did find non-statutory mitigation including the fact that Freeman: (1) was of low intelligence; (2) had been abused by his stepfather; (3) possessed some artistic ability; and (4) enjoyed playing with children. After weighing these factors, the judge sentenced Freeman to death.

On appeal, appellate counsel argued: (1) the prosecutor erred in presenting Ms. Epps' testimony at the penalty phase, and the trial judge erred in denying the motion for a mistrial based on Ms. Epps' testimony; (2) the prosecutor made several improper comments during the penalty phase that required reversal; (3) the jury instructions on heinous, atrocious, and cruel were unconstitutionally vague; (4) the death penalty was proportionally unwarranted in this case; and (5) Freeman's sentence in this case must be vacated if the Epps conviction is reversed on direct appeal. This Court held: (1) it was improper to allow Ms. Epps to testify, but even without her testimony the jury would still have recommended death; (2) the prosecutor's statements were not reversible error; (3) the heinous, atrocious, and cruel instruction was not properly preserved for appeal; and even if it had been properly preserved, the instruction sufficiently limited the jury's discretion so that it was not unconstitutionally vague; (4) the death sentence was not disproportionate; and (5) the argument to vacate if the Epps conviction was reversed was moot because the conviction was affirmed in Freeman v. State, 547 So.2d 125 (Fla.1989).

Freeman now appeals the trial court's summary denial of his motion for postconviction relief and files a petition for a writ of habeas corpus. In the postconviction appeal, Freeman raises eleven issues.2 In

761 So.2d 1061
the petition for writ of habeas corpus, Freeman also raises eleven issues.3

POSTCONVICTION RELIEF APPEAL

Brady Claim and Ineffective Counsel

Freeman claims error in the trial court's summary denial of relief based on his allegations that critical exculpatory evidence was never presented to the jury because of actions by the State. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He further contends that to the extent that these claims are not cognizable under Brady, they demonstrate ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under either theory, Freeman claims he is entitled to an evidentiary hearing, and the trial court erred in failing to have such a hearing. We...

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376 practice notes
  • Downs v. Moore, No. SC00-2186.
    • United States
    • United States State Supreme Court of Florida
    • September 26, 2001
    ...confidence in the fairness and correctness of the appellate result." Id.; see also Rutherford, 774 So.2d at 643; Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000); Groover v. Singletary, 656 So.2d 424, 425 (Fla.1995); Suarez v. Dugger, 527 So.2d 190 However, appellate counsel cannot be cons......
  • Peede v. State, No. SC04-2094.
    • United States
    • United States State Supreme Court of Florida
    • January 11, 2007
    ...of ineffective assistance of appellate counsel are appropriately presented in a petition for writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Consistent with the Strickland standard, to grant habeas relief based on ineffectiveness of appellate counsel, this Cour......
  • Overton v. State, No. SC04-2071.
    • United States
    • United States State Supreme Court of Florida
    • November 29, 2007
    ...rule, claims of ineffective assistance of appellate counsel are presented in a petition for writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Consistent with the Strickland standard, to grant habeas relief based on ineffectiveness of counsel, this Court must dete......
  • Butler v. State, Nos. SC10–1133
    • United States
    • United States State Supreme Court of Florida
    • October 26, 2012
    ...the claim of ineffective assistance of counsel can be based.” Anderson v. State, 18 So.3d 501, 520 (Fla.2009) (quoting Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000)). “Appellate counsel cannot be deemed ineffective for failing to raise meritless issues.” Id. at 521. “In fact, appellate ......
  • Request a trial to view additional results
378 cases
  • Downs v. Moore, No. SC00-2186.
    • United States
    • United States State Supreme Court of Florida
    • September 26, 2001
    ...confidence in the fairness and correctness of the appellate result." Id.; see also Rutherford, 774 So.2d at 643; Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000); Groover v. Singletary, 656 So.2d 424, 425 (Fla.1995); Suarez v. Dugger, 527 So.2d 190 However, appellate counsel cannot be cons......
  • Peede v. State, No. SC04-2094.
    • United States
    • United States State Supreme Court of Florida
    • January 11, 2007
    ...of ineffective assistance of appellate counsel are appropriately presented in a petition for writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Consistent with the Strickland standard, to grant habeas relief based on ineffectiveness of appellate counsel, this Cour......
  • Overton v. State, No. SC04-2071.
    • United States
    • United States State Supreme Court of Florida
    • November 29, 2007
    ...rule, claims of ineffective assistance of appellate counsel are presented in a petition for writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Consistent with the Strickland standard, to grant habeas relief based on ineffectiveness of counsel, this Court must dete......
  • Butler v. State, Nos. SC10–1133
    • United States
    • United States State Supreme Court of Florida
    • October 26, 2012
    ...the claim of ineffective assistance of counsel can be based.” Anderson v. State, 18 So.3d 501, 520 (Fla.2009) (quoting Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000)). “Appellate counsel cannot be deemed ineffective for failing to raise meritless issues.” Id. at 521. “In fact, appellate ......
  • Request a trial to view additional results

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