Grossman v. State, SC10-118.

• Decision Date: 08 February 2010
• Docket Number: No. SC10-118.,SC10-118.
• Citation: 29 So.3d 1034
• Parties: Martin Edward GROSSMAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

29 So.3d 1034

Martin Edward GROSSMAN, Appellant, v. STATE of Florida, Appellee.

No. SC10-118.

Supreme Court of Florida.

February 8, 2010.

Bill Jennings, Capital Collateral Regional Counsel, and Richard E. Kiley, James Viggiano, and Andrew Ali Shakoor, Assistant CCR Counsel, Middle Region, Tampa, FL, for Appellant.

Bill McCollum, Attorney General, and Carol M. Dittmar, Senior Assistant Attorney General, and Stephen D. Ake, Assistant Attorney General, Tampa, FL, for Appellee.

PER CURIAM.

Martin Edward Grossman, a prisoner under sentence of death and under an active death warrant, appeals from the trial court's order summarily denying his motion to vacate his sentence pursuant to Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a sentence of death, this Court has jurisdiction over the appeal under article V, section 3(b)(1), of the Florida Constitution. In his successive motion filed after the death warrant was signed, the summary denial of which is the subject of the present appeal, Grossman raised claims that were either previously raised in his postconviction proceedings that concluded in 1997 or repeatedly rejected by this Court as legally without merit. Therefore, as more fully explained in this opinion, we affirm the trial court's order.

FACTS AND PROCEDURAL HISTORY

In 1985, Martin Grossman was convicted of the 1984 first-degree murder of Wildlife Officer Margaret Park and was sentenced to death on the recommendation of a unanimous jury. This case has a long procedural history. The conviction and death sentence have been reviewed and affirmed on direct appeal and have been the subject of multiple state and federal proceedings.¹ The facts of this case are set forth in this Court's opinion in Grossman's direct appeal of his conviction and sentence:

Appellant and a companion, Taylor, drove to a wooded area of Pinellas County on the night of December 13, 1984, to shoot a handgun which appellant had recently obtained by burglarizing a home. Appellant lived in neighboring Pasco County at his mother's home and was on probation following a recent prison term. Wildlife Officer Margaret Park, patrolling the area in her vehicle, came upon the two men and became suspicious. She left her vehicle with the motor, lights, and flashers on, and took possession of appellant's weapon and driver's license. Appellant pleaded with her not to turn him in as having a weapon in his possession and being outside of Pasco County would cause him to return to prison for violation of probation. Officer Park refused the plea, opened the driver's door to her vehicle and picked up the radio microphone to call the sheriff's office. Appellant then grabbed the officer's large flashlight and struck her repeatedly on the head and shoulders, forcing her upper body into the vehicle. Officer Park reported "I'm hit" over the radio and screamed. Appellant continued the attack, and called for help from Taylor, who joined in the assault. Officer Park managed to draw her weapon, a .357 magnum, and fired a wild shot within the vehicle. Simultaneously, she temporarily disabled Taylor by kicking him in the groin. Appellant, who is a large man, wrestled the officer's weapon away and fired a fatal shot into the back of her head. The spent slug exited her head in front and fell into a drinking cup inside the vehicle. Blood stains, high velocity splatters, the location of the spent slug, and the entry and exit wounds show that the victim's upper body was inside the vehicle with her face turned inward or downward at the moment she was killed. Appellant and Taylor took back the seized handgun and driver's license, and fled with the officer's weapon. They returned to the Grossman home, where they told the story of the killing, individually and collectively, to a friend who lived with the Grossmans. The friend, Brian Hancock, and Taylor buried the two weapons nearby. Appellant, who was covered with blood, attempted unsuccessfully to burn his clothes and shoes which Taylor later disposed of in a nearby lake. Approximately a week later appellant and Taylor, individually and collectively, recounted the story of the murder to another friend, Brian Allan. Approximately eleven days after the murder, Hancock told his story to the police and appellant and Taylor were arrested. Taylor, upon his arrest, recounted the story of the murder to a policeman and, later, appellant told the story to a jailmate, Charles Brewer. Appellant and Taylor were tried jointly over appellant's objection. At trial, the state introduced the testimony of Hancock, Allan, and Brewer against appellant. The state also introduced Taylor's statement to the policeman against Taylor only. In addition, the state introduced the charred shoes, the two weapons, prints taken from the victim's vehicle, testimony from a neighbor who observed the attempted burning of the clothes, appellant's efforts to clean the Grossman van, and the changing of the van tires. Expert testimony as to the cause of death and the significance of blood splatter evidence was also introduced by the state. The jury was instructed that Taylor's admissions to the policeman could only be used against him, not appellant. The jury was instructed on premeditation and felony murder based on robbery, burglary, and escape. A general verdict of first-degree murder was returned against the appellant and Taylor was found guilty of third-degree murder.

Grossman, 525 So.2d at 835-36.

During the penalty phase, defense counsel called four witnesses: (1) Myra Grossman, Grossman's mother; (2) Thomas Campbell, a correctional officer overseeing Grossman; (3) Steven Martakas, Grossman's friend from junior high school; and (4) Carolyn Middleton, a social worker at the jail housing Grossman. These witnesses testified that Grossman's father was disabled and that Grossman was often tasked from a very young age with taking care of him. Grossman dropped out of junior high school, and his father died when Grossman was fifteen years old. Grossman respected his parents and was not a violent person. Grossman never exhibited behavioral problems while in jail, and he was very nervous and scared about being executed. Following the penalty phase, the jury unanimously recommended death, and the judge imposed a sentence of death. Grossman, 525 So.2d at 836.² This Court affirmed Grossman's conviction and death sentence on direct appeal. Id. at 846.

On March 8, 1990, before Grossman filed any postconviction motions, Governor Bob Martinez signed a death warrant setting the execution of Grossman for the week of May 10, 1990. Grossman filed a petition for writ of habeas corpus in this Court, and this Court granted a stay of execution to allow Grossman the opportunity to seek postconviction relief. Grossman, 708 So.2d at 250. Grossman filed a motion to vacate his conviction and sentence under Florida Rule of Criminal Procedure 3.850 in the trial court in August 1990 ("original postconviction motion") and simultaneously filed an amended habeas petition in this Court. Id.

In his original postconviction motion, Grossman made numerous claims, but three claims are directly relevant to our determination that the present successive motion includes claims that Grossman has previously raised. First, Grossman argued in claim VI of his original postconviction motion that he was denied the effective assistance of counsel during the penalty phase because counsel failed to have Grossman examined by a competent mental health professional as required by Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). The original court-appointed mental health expert for the defense was Dr. Sidney Merin. However, Dr. Merin did not testify during Grossman's penalty phase proceedings. After his evaluation of Grossman, Dr. Merin advised defense counsel that "his findings would not be helpful to the defense position in either the guilt or innocence phase or, if it is held, the sentencing phase of Mr. Grossman's trial." In his original postconviction motion, Grossman alleged that a new mental health expert, Dr. Brad Fisher, had evaluated Grossman in March 1990 and had prepared a report that rebutted the contentions of Dr. Merin.³ Dr. Fisher's report indicated that testing did not reveal any signs of "a current psychotic condition or of any major affective disorder." However, Dr. Fisher noted that his testing revealed "soft signs of organic impairment," which was supported by Grossman's history of "chronic and extensive drug and alcohol dependence," and that "further testing would be required to determine the nature and extent of this probable mental disability." Grossman attached Dr. Fisher's report to his motion and was prepared to call Dr. Fisher to testify at an evidentiary hearing.⁴ The trial court summarily denied this claim, and this Court affirmed that denial. Grossman, 708 So.2d at 252.

Second, Grossman claimed in claim V of his original postconviction motion that counsel was ineffective during the penalty phase for failing to investigate, develop, and present mitigating evidence. Grossman received an evidentiary hearing on this claim. The only expert offered by the defense at the evidentiary hearing in 1994 was Kevin Sullivan, a licensed clinical social worker. Sullivan testified that Grossman was raised in a dysfunctional environment and that a number of factors negatively impacted his development, including that Grossman had been given inappropriate caretaking responsibilities from a young age; that his family had relocated at a critical time in his development; and that he experienced grief at the loss of his father and grandfather.

The trial court denied relief on this claim:

The Defendant has failed to make the required showing of either deficient performance or sufficient prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) to support his ineffectiveness claim.

The Court has

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