Haliburton v. Singletary, s. 79382

Decision Date09 January 1997
Docket NumberNos. 79382,83749,s. 79382
Citation691 So.2d 466
Parties22 Fla. L. Weekly S36 Jerry Leon HALIBURTON, Petitioner, v. Harry K. SINGLETARY, Jr., Respondent. Jerry Leon HALIBURTON, Appellant, v. STATE of Florida, Appellee.
CourtFlorida Supreme Court

Michael J. Minerva, Capital Collateral Representative and Todd G. Scher, Chief Assistant CCR, Office of the Capital Collateral Representative, Tallahassee, for Petitioner/Appellant.

Robert A. Butterworth, Attorney General and Randall Sutton and Fariba N. Komeily, Assistant Attorneys General, Miami, for Respondent/Appellee.

PER CURIAM.

This case is before us on appeal from the trial court's denial of Jerry Leon Haliburton's motion to vacate his conviction and sentence pursuant to Florida Rule of Criminal Procedure 3.850. We also have before us a petition for writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(1), (9), Fla. Const.

Haliburton was convicted of first-degree murder and burglary and sentenced to death for stabbing Don Bohannon thirty-one times during a burglary of Bohannon's home in West Palm Beach. On appeal, this Court concluded that statements Haliburton made to the police should have been suppressed and remanded the case for a new trial. See Haliburton v. State, 476 So.2d 192 (Fla.1985). On petition for certiorari, the United States Supreme Court vacated the reversal and remanded the case to this Court for reconsideration. Florida v. Haliburton, 475 U.S. 1078, 106 S.Ct. 1452, 89 L.Ed.2d 711 (1986). On remand, this Court held that police officers' failure to inform the defendant that an attorney was in the stationhouse and had asked to speak with him violated the due process provision of the Florida Constitution so as to vitiate the defendant's otherwise valid waiver of his right to an attorney and to require suppression of the statement made subsequent to the attorney's arrival. Haliburton v. State, 514 So.2d 1088 (Fla.1987).

On retrial, Haliburton was again convicted of burglary and first-degree murder. This Court affirmed the conviction and sentence on appeal. Haliburton v. State, 561 So.2d 248, 249 (Fla.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2910, 115 L.Ed.2d 1073 (1991). In January 1992, Governor Chiles signed a death warrant scheduling Haliburton's execution for March 1992. In February 1992, Haliburton filed a rule 3.850 motion to vacate the judgment and sentence and a motion for a stay of execution. On March 12, 1992, a stay was granted.

In May 1993, Haliburton filed an amended motion for post-conviction relief and in December 1993, the court conducted an evidentiary hearing. The trial court denied Haliburton's motion for post-conviction relief and his subsequent motion for rehearing; this appeal followed together with a petition for habeas corpus.

Rule 3.850 Motion

Haliburton raises nine claims in the appeal of the denial of his 3.850 motion: (1) whether the successor judge properly ruled on Haliburton's motion for rehearing; (2) whether the state withheld exculpatory evidence and whether counsel's performance was deficient during the guilt phase; (3) whether counsel's performance was deficient at the penalty phase; (4) whether the jury instructions and aggravating circumstances were unconstitutionally vague and overbroad; (5) whether the state complied with Haliburton's chapter 119 requests; (6) whether counsel was ineffective in advising Haliburton to waive speedy trial rights on the burglary charge; (7) whether counsel was ineffective regarding prosecutorial misconduct; (8) whether the jury instructions improperly shifted the burden to Haliburton; and (9) whether Haliburton was denied due process when the governor signed his death warrant before the two-year time limit for filing a motion for post-conviction relief expired. Claims (4) and (8) were not raised at trial and as such they are procedurally barred. Haliburton has conceded that claim (9) is moot since the trial court granted his stay of execution in March 1992.

First, we address Haliburton's contention that reversible error occurred when a successor judge impermissibly ruled on his motion for rehearing. Judge Lindsey presided over Haliburton's evidentiary hearing and denied his post-conviction motion; yet Judge Burk denied his motion for rehearing. Haliburton relies on Groover v. Walker, 88 So.2d 312 (Fla.1956), for the proposition that a successor judge may not correct any alleged legal errors in a final order issued by his predecessor. However, in Epperson v. Epperson, 101 So.2d 367 (Fla.1958), this Court explained:

We have the view that if the Chancellor who entered the final decree is available and willing to act on a petition for rehearing then the matter should not be acted upon by another judge. However, if the original Chancellor is unable by virtue of death, disability or other equivalent event, or is unwilling by reason of recusation of other cause to consider the rehearing petition, then a successor-Chancellor may consider it under such circumstances.

If the petition for rehearing is merely a reargument on points and facts considered by the original Chancellor, then the successor-Chancellor is without authority on such basis to reverse his predecessor. Such a petition for rehearing should be denied.

Id. at 368-69 (citation omitted). Although the Court advises the original judge to act on a petition for rehearing if possible, the Court does not prohibit the successor judge from denying the motion for rehearing as Judge Burk did in the instant case. The successor judge is only prohibited from reversing the judgment of the predecessor judge on the facts and argument considered by the predecessor. We do not know Judge Lindsey's reason for not acting on Haliburton's motion for rehearing; however, we find no error.

Haliburton next claims that either the state suppressed certain exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), or his counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in failing to investigate, prepare, and present the evidence. Haliburton predicates his claim on the following assertions: The jury did not hear evidence which would have impeached the testimony of Haliburton's brother, Freddie, or Freddie's girlfriend, Sharon Williams; the state failed to disclose that Haliburton's fingerprint was not on the knife allegedly used during the assault on Sharon Williams, and the prosecutor intentionally misled the jury on this point when she argued that Haliburton was guilty because he "used a knife of opportunity ... when he assaulted Sharon Williams"; the jury did not hear the alibi testimony of Bernice Watson; and defense counsel failed to vigorously present evidence and make argument.

First, we will address the Brady claim. According to Haliburton, the state withheld evidence of Freddie's March 15, 1982, statement to police providing a different version of his brother's involvement in the murder; the state's assistance to Freddie in receiving lost gain time in the state prison system as a result of his cooperation and testimony at his brother's trial; the fingerprint results indicating that Haliburton's fingerprint was not on the knife Williams claimed Haliburton held to her throat when he allegedly raped her and made an inculpatory statement; 1 and the tape of Sergeant Houser's interview with Haliburton's former cellmate, Curtis Horne, corroborating Haliburton's statement that he broke in to Bohannon's apartment and found a dead body. 2 In light of the record before us, we find that no Brady violation has occurred.

In Cruse v. State, 588 So.2d 983 (Fla.1991), this Court stated:

Not all evidence in the possession of the State must be disclosed to the defense under Brady. Evidence is only required to be disclosed if it is material and exculpatory. Evidence is material only if "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." In making this determination, the evidence must be considered in the context of the entire record.

Id. at 987 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)).

The record supports the trial court's finding that the state turned over all documentation. There is no evidence that the March 15, 1982, statement was ever transcribed, and Haliburton concedes that he has seen a typed edited version of Houser's interview with Horne. Both Freddie and the prosecutor denied having a deal to induce Freddie's testimony, although the prosecutor assisted Freddie by writing to the Department of Corrections in order to restore the gain time he lost while waiting in jail for his brother's second trial--Freddie testified to this fact during the second trial. As to the fingerprint report, it was retrieved from a separate file on the Sharon Williams rape charge which had been nolle prossed six years prior to Haliburton's second trial; however, the Palm Beach State Attorney's Office had an open files policy and Haliburton could have reviewed the rape file upon request. We find no failure on the state's part to disclose relevant evidence; thus, Haliburton's Brady claim must fail.

Haliburton argues that even if no Brady violation exists, defense counsel was ineffective under Strickland by not presenting the aforementioned evidence to the jury. In addition, Haliburton claims his counsel was ineffective for failing to present the alibi testimony of Bernice Watson and to vigorously present evidence and argument. In order to prevail on this claim, Haliburton must demonstrate that counsel's performance was deficient and that there is a reasonable probability that the outcome of the proceeding would have been different absent the deficient performance. Stri...

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