Grim v. State
| Decision Date | 04 October 2007 |
| Docket Number | No. SC06-1575.,No. SC06-122.,SC06-122.,SC06-1575. |
| Citation | 971 So.2d 85 |
| Parties | Norman GRIM, Appellant, v. STATE of Florida, Appellee. Norman Grim, Petitioner, v. James R. McDonough, etc., Respondent. |
| Court | Florida Supreme Court |
Jeffrey M. Hazen and Harry Brody of Brody and Hazen, P.A., Tallahassee, FL, for Appellant/Petitioner.
Bill McCollum, Attorney General and Ronald A. Lathan, Jr., Assistant Attorney General, Tallahassee, FL, for Appellee/Respondent.
Norman Grim, a prisoner under sentence of death, appeals an order denying his motion for postconviction relief and petitions this Court for writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained below, we affirm the lower court's order and deny Grim's habeas petition.
The underlying facts are stated in our opinion affirming Grim's convictions and sentences, Grim v. State, 841 So.2d 455, 457-59 (Fla.2003), and are briefly summarized here. At about 5:08 a.m. on July 27, 1998, Deputy Sheriff Timothy Lynch responded to a call from Cynthia Campbell regarding a disturbance behind her house. When he arrived, Campbell was standing on her porch with her neighbor, the defendant, Norman Grim, Jr. After Lynch finished his investigation and before returning to his house, Grim invited Campbell over for a cup of coffee. Campbell's bookkeeper arrived at Campbell's house at 7:20 a.m., entered the house, and called for Campbell. Receiving no response, she called the police. Later that morning, Campbell's paralegal went to Campbell's house, saw her car in front of the house, and went inside. Ten to fifteen minutes later, Deputy Sheriffs Calvin Rutherford and Steven McCauley arrived. They spoke with Grim and obtained permission to look inside his home, but saw no signs of struggle. Corporal Blevin Davis arrived at 11 a.m. and talked briefly with Grim. Grim asked for and obtained permission to get his dogs, which were loose in the neighborhood. He was followed for a time by Deputy Donnie Wiggen, who lost sight of him.
Thomas Rodgers, the manager of the north end of the Pensacola Bay fishing bridge, ran a bait and tackle shop and convenience store at the foot of the bridge. Rodgers testified that sometime in the early afternoon of July 27, 1998, Grim came into his store. A surveillance videotape showed Grim entering the store just after 2 p.m. Cynthia Wells, a former coworker of Grim, left work at around 1 p.m. She was traveling on the Pensacola Bay Bridge, and saw Grim on the fishing bridge walking beside his parked car with both doors and the trunk open. At about 3:30 p.m. the same afternoon, James Andrews was fishing from the Pensacola Bay Bridge and hooked Cynthia Campbell's body. The body was wrapped in layers of material, including garbage bags, a floral sheet, blue striped sheets, a piece of green carpet, masking tape, and rope. The autopsy revealed blunt force trauma to Campbell's face, shoulders and head consistent with having been inflicted by a hammer. She also suffered eleven stab wounds to the chest.
Two damp mops with suspected blood stains were found in Grim's kitchen. A piece of green carpet consistent with the carpet wrapped around the victim's body was found on Grim's back porch. Also on the porch was a cooler containing, among other things, prescription glasses matching Campbell's prescription records; a roll of masking tape that fracture-matched the tape on Campbell's body; a steak knife with six genetic markers consistent with the victim; a hammer with genetic markers consistent with the victim; and a blue and white striped pillowcase. The rope and green carpet found on the victim's body, although not fracture-matched, were identical in appearance, construction, and fiber type as those found in Grim's home. Fingerprints on a coffee cup found in Grim's kitchen were identified as the victim's. Bloody fingerprints on a trash bag box also found in his kitchen were identified as Grim's, and DNA testing yielded genetic markers consistent with the victim. Stains on a pair of shorts and shoes found in Grim's living room bore genetic markers consistent with those of the victim.
Grim was arrested in Oklahoma on July 31, 1998. An analysis of stains on the shorts he was wearing when arrested revealed twelve genetic markers consistent with the victim's DNA.
Grim was tried and found guilty of first-degree murder and sexual battery upon a person twelve years of age or older with the use of a deadly weapon. When Grim instructed his attorneys not to present mitigating evidence, the trial court conducted a hearing pursuant to Koon v. Dugger, 619 So.2d 246 (Fla.1993). The trial judge determined that Grim freely, voluntarily, and knowingly decided to waive mitigation. The jury recommended death by a vote of 12-0. The trial judge ordered a presentence investigation report and appointed special counsel to present mitigating evidence to the court at the sentencing/Spencer1 hearing. Grim did not present any mitigating evidence and objected to presentation by special counsel. Despite Grim's objection, special counsel presented available mitigating evidence. In sentencing Grim, the trial court followed "two separate paths"—considering the jury recommendation and independently weighing aggravating and mitigating circumstances. It concluded that the aggravating factors significantly outweighed the mitigation and that "death is unquestionably the appropriate penalty."2 On appeal, we affirmed the convictions and sentences. Grim, 841 So.2d at 465.3 The United States Supreme Court denied certiorari. See Grim v. Florida, 540 U.S. 892, 124 S.Ct. 230, 157 L.Ed.2d 166 (2003).
On October 5, 2004, Grim filed the postconviction motion at issue, raising numerous claims.4 After an evidentiary hearing, the trial court denied relief.
Grim raises the following claims: (A) the State committed two Brady violations; (B) his guilt-phase counsel was ineffective in various respects; (C) penalty-phase counsel was ineffective; and (D) special counsel had an undisclosed conflict of interest. In his accompanying petition for writ of habeas corpus Grim claims: (1) section 921.141, Florida Statutes (2006), is unconstitutional; (2) the State's failure to specify aggravators in the indictment is unconstitutional; (3) the jury instructions improperly shifted the burden of proof; and (4) appellate counsel was ineffective. We address Grim's claims on appeal in order and then address his habeas petition.
Grim first asserts Brady violations related to (1) the revocation of the medical examiner's license to perform autopsies in Missouri; and (2) a letter regarding Grim's history of drug and alcohol abuse. We address each claim in turn.
Dr. Michael Berkland, a medical examiner, performed the autopsy of Cynthia Campbell. At trial, Berkland testified that Campbell suffered severe blunt force trauma consistent with having been repeatedly bludgeoned with a hammer. Berkland also testified that the victim had been stabbed with a knife no fewer than eleven times and that injuries to the pelvic area indicated an object had been forcibly inserted into her vagina and removed at a sharp angle. Berkland's testimony about the insertion of an object into the victim's vagina formed the basis for the sexual battery charge of which Grim was convicted. The sexual battery charge in turn formed the basis for the felony-murder prong of Grim's first-degree murder indictment.
At the time of Grim's trial, Berkland's license to perform autopsies in Missouri had been revoked.5 The State Attorney's Office had received a twenty-three page facsimile communication dated October 12, 1998, containing various newspaper articles, court papers, and letters documenting the revocation of Berkland's license. These documents were never turned over to the defense. On March 25, 1999, Berkland gave a sworn deposition attended by Assistant State Attorney Ronald Swanson and Assistant Public Defender Antoinette Stitt. Berkland admitted that his Missouri autopsy license had been revoked and explained the circumstances surrounding its revocation.
After the Public Defender withdrew from Grim's case due to a conflict, Richard Hill replaced Ms. Stitt as defense counsel. Hill testified that the Public Defender's Office provided him all its files and deposition records and that he reviewed Berkland's March 1999 deposition testimony. However, Hill never impeached Berkland about the revocation of his Missouri license. Grim argues that the State's failure to disclose the faxed documents constitutes a Brady violation. He also argues that Hill's failure to impeach Berkland at trial constitutes ineffective assistance of counsel. The merits of these claims are analyzed below.
As we recently explained,
Brady requires the State to disclose material information within its possession or control that is favorable to the defense. To establish a Brady violation, the defendant has the burden to show (1) that favorable evidence—either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced.
To establish prejudice or materiality under Brady, a defendant must demonstrate
Riechmann v. State, 966 So.2d 298, ___ (Fla. 2007) (citations omitted) (quoting Ponticelli v. State, 941 So.2d 1073, 1084-85 (Fla.2006)).
The documents the State failed to disclose call into question Berkland's qualifications as a medical examiner. They include a permanent...
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