Israel v. State

• Decision Date: 20 March 2008
• Docket Number: No. SC06-653.,No. SC05-1739.,SC05-1739.,SC06-653.
• Citation: 985 So.2d 510
• Parties: Connie Ray ISRAEL, Appellant, v. STATE of Florida, Appellee. Connie Ray Israel, Petitioner, v. Walter A. McNeil, etc., Respondent.
• Court: Florida Supreme Court

985 So.2d 510

Connie Ray ISRAEL, Appellant, v. STATE of Florida, Appellee.

Connie Ray Israel, Petitioner, v. Walter A. McNeil, etc., Respondent.

No. SC05-1739.

No. SC06-653.

Supreme Court of Florida.

March 20, 2008.

Rehearing Denied June 26, 2008.

Bill Jennings, Capital Collateral Regional Counsel, Robert T. Strain and David Robert Gemmer, Assistant CCRC, Middle Region, Tampa, FL, for Appellant/Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, and Kenneth S. Nunnelley, Assistant Attorney General, Daytona Beach, FL, for Appellee/Respondent.

PER CURIAM.

Connie Ray Israel appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851. He also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons expressed below, we affirm the order denying postconviction relief and deny the petition for habeas corpus.

FACTS AND PROCEDURAL HISTORY

Connie Ray Israel was convicted of burglary of a dwelling with a battery, kidnapping, sexual battery with great force, and first-degree murder arising out of the December 27, 1991, murder of 77-year-old Esther Hagans in her home in Putnam County. See Israel v. State, 837 So.2d 381, 384 (Fla.2002). Hagans' body was discovered in the bedroom of her house by the police after they were summoned by a neighbor when Hagans did not respond to a telephone call. Hagans had been sexually assaulted and struck on the head, which caused major brain hemorrhaging. The medical examiner testified that Hagans had a weak heart and it gave out due to the stress and shock of the beating and sexual assault. Id. Semen stains from the scene were ultimately identified as Israel's through DNA testing. Id. at 385.

Evidence and testimony at trial showed that Israel stayed at several Palatka hotels after Hagans' murder and paid for the rooms in cash. Israel bought cocaine from his dealer three or four times on the day after the murder and also paid in cash. Israel told a number of individuals that he had "hit the lottery." A prisoner housed in the same cell with Israel testified that Israel stated he was charged with first-degree murder, that he "tried to knock that bitch's head off," that he sexually assaulted Hagans, and that he went into her house to steal some church money. Id. at 384-85.

Israel was the only defense witness at trial. He denied having any involvement in Hagans' murder or confessing to his cellmate. Israel testified that the law enforcement officers took Hagans' money and made the scene look like a murder. Israel insisted that his semen was not found at the scene and that the officers had planted his blood at the scene. Id. at 385.

The jury returned a guilty verdict on all four counts in the indictment. After the penalty phase, the jury returned an advisory sentence of death by a vote of eleven to one. The trial court followed the jury's recommendation and sentenced Israel to death on the first-degree murder conviction. The court found four aggravating circumstances: (1) the defendant was previously convicted of violent felony; (2) the crime was especially heinous, atrocious or cruel (HAC); (3) the crime was committed while the defendant was engaged in the commission of a sexual battery, burglary, and kidnaping; and (4) the capital felony was committed for pecuniary gain. The court found two statutory mitigating circumstances: (1) the defendant was under the influence of an extreme mental or emotional disturbance at the time the crime occurred; and (2) the defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired. The court gave some weight to these mitigating circumstances. Id.

On direct appeal to this Court, Israel raised seven issues.¹ However, this Court found no merit to the claims and affirmed Israel's convictions and the death sentence. Id. at 394.

Israel filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.851, raising sixteen claims. An evidentiary hearing was conducted by the trial court on January 20, 2005. The witnesses at the hearing included Israel's trial attorney Clyde Wolf, defense mental health experts Dr. Brad Fisher (a forensic psychologist) and Dr. Jonathan Lipman (a neuropharmacologist), and State mental health expert Dr. Harry McClaren (a forensic psychologist).

Dr. Fisher testified that he had interviewed Israel on several occasions and had reviewed previous psychological evaluations and various records, including family interviews, court records, school records, and medical records. However, Dr. Fisher was unable to conduct any meaningful testing because Israel refused to cooperate. Based on the interviews and the materials that he reviewed, Dr. Fisher opined that Israel has a paranoid personality, suffered some level of neurological impairment at age five, has borderline intelligence with an IQ of 81, and has polysubstance abuse that started at an early age. Dr. Fisher testified that his findings were very similar to and consistent with those of the mental health expert who testified at Israel's trial, psychologist Dr. Harry Krop.

Dr. Lipman testified that he had reviewed the reports of the previous and current mental health experts, Israel's criminal records, this Court's opinion on direct appeal, the transcripts of the trial testimony by Israel and Dr. Krop, the transcript of the sentencing proceeding, the sentencing order, and the interviews of Israel's family members. Dr. Lipman also interviewed Israel on two separate days and discussed the case with Dr. Fisher. Dr. Lipman testified that Israel had an extensive record of drug use, principally crack cocaine. He explained that cocaine usage would tremendously exacerbate Israel's underlying psychological disorders that had been diagnosed by the other mental health experts. Dr. Lipman stated that these effects could include delusions, hallucinations, and irrational fears. However, because Israel had not cooperated with him, Dr. Lipman could not offer a more specific evaluation.

The State's expert, Dr. McClaren, testified that he was able to interview Israel for about two hours. Israel refused to cooperate after this initial interview. Dr. McClaren reviewed the same documents as Drs. Fisher and Lipman, but also reviewed Israel's files from the Department of Corrections. Dr. McClaren testified that Israel meets the criteria for paranoid personality disorder and antisocial personality disorder and is suffering from polysubstance dependence. Dr. McClaren also could not rule out that Israel suffers from some degree of brain dysfunction, a delusional disorder relating to his bodily functions, depression, paraphilia (aberrant sexual arousal) with a nonconsenting partner, and sexual sadism. However, Dr. McLaren was also unable to make definitive diagnoses because of Israel's refusal to cooperate.

Trial counsel Wolfe testified that he was appointed as Israel's attorney and that he was the fourth attorney to represent Israel in his case. Wolfe was originally appointed as stand-by counsel while Israel represented himself. As soon as Wolfe was appointed as full counsel, he filed a motion for the appointment of an investigator. Because Israel denied any involvement in Hagan's homicide, Wolfe concentrated on a reasonable doubt defense. Wolfe requested Dr. Krop be appointed as a mental health expert to evaluate Israel's status. However, Israel did not cooperate with Dr. Krop's evaluation. Investigator John O'Malley contacted Israel's family members and sought Israel's school records. Israel's family was not helpful in this investigation.

The trial court issued an order denying all relief on August 9, 2005. Israel has appealed that denial to this Court. He has also petitioned this Court for a writ of habeas corpus.

APPEAL OF RULE 3.851 POSTCONVICTION MOTION

Israel appeals the denial of his postconviction motion to this Court, raising five issues. Israel asserts that: (1) trial counsel rendered ineffective assistance during closing argument of the penalty phase; (2) trial counsel rendered ineffective assistance in failing to file a sentencing memorandum for the Spencer² hearing; (3) trial counsel rendered ineffective assistance for failing to present mitigating evidence and to prepare an expert witness prior to his penalty phase testimony; (4) procedural and substantive errors deprived him of a fundamentally fair trial; and (5) Florida's death penalty statute is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We address each claim in turn below.

In order to succeed on his claims of ineffective assistance of trial counsel, Israel must satisfy both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As explained by this Court,

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 fairness and reliability of the proceeding that confidence in the outcome is undermined. 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.

Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citations omitted). Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the trial court's factual findings that are supported by competent, substantial evidence, but...