Johnston v. State

• Decision Date: 03 June 2011
• Docket Number: Nos. SC09–780,SC10–75.,s. SC09–780
• Citation: 63 So.3d 730
• Parties: Ray Lamar JOHNSTON, Appellant,v.STATE of Florida, Appellee.Ray Lamar Johnston, Appellant,v.Edwin G. Buss, etc., Appellee.
• Court: Florida Supreme Court

63 So.3d 730

Ray Lamar JOHNSTON, Appellant,

v.STATE of Florida, Appellee.Ray Lamar Johnston, Appellant,

v.Edwin G. Buss, etc., Appellee.

Nos. SC09–780

SC10–75.

Supreme Court of Florida.

March 24, 2011.Rehearing Denied June 3, 2011.

Bill Jennings, Capital Collateral Regional Counsel, David D. Henry, Assistant CC Regional Counsel, Middle Region, Tampa, FL, for Appellant/Petitioner.Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Katherine V. Blanco, Assistant Attorney General, Tampa, FL, for Appellee/Respondent.PER CURIAM.

Ray Lamar Johnston appeals an order of the trial court denying his motion to vacate his conviction for 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.¹ For the reasons that follow, we affirm the trial court's order denying postconviction relief. We also deny the habeas petition.

I. FACTS AND PROCEDURAL HISTORY

Johnston was charged with the 1997 murder, kidnapping, robbery, and sexual battery of Leanne Coryell and with burglary of a conveyance with assault or battery. Johnston v. State, 841 So.2d 349, 351 (Fla.2002). The jury found Johnston guilty on all charges and unanimously recommended the death penalty. The trial court followed the jury's recommendation and sentenced Johnston to death. Id. at 355.

The evidence presented at Johnston's trial demonstrated that Johnston had beaten, raped, and manually strangled Coryell, then dragged her to a pond and left her nude, floating face down. Id. at 352. When law enforcement arrived at the scene, Coryell's car was in a nearby parking lot with the keys in the ignition and the engine still warm. Id. Later that night and early the next morning, ATM surveillance videos captured Johnston using Coryell's ATM card to withdraw $1000 from her account. Id. Police obtained a warrant to search Johnston's apartment, where they found a pair of wet tennis shoes matching three partial impressions found at the scene. Id.

After Johnston saw his picture on television, he voluntarily told police he was friends with Coryell and had gone out for dinner and drinks on the night of the murder. Id. At that time, he explained that he had loaned money to Coryell and that she had provided the ATM card so that Johnston could withdraw money from her account as repayment. Id. After making this initial statement, Johnston was arrested for grand theft. Id. He received Miranda² warnings and agreed to continue the interview. Id. Thereafter, the detectives pointed out factual discrepancies in Johnston's initial statement and confronted Johnston with the information that they had discovered his wet tennis shoes. Id. at 352–53. Johnston continued to deny his guilt and responded that law enforcement would not find any DNA evidence, hair, or saliva that would link him to the victim. Id. at 353.

At trial, the prosecution presented evidence that Coryell had clocked out of work over two hours after Johnston had purported to meet her for drinks. Id. at 351–52. His roommate testified that they lived in the same apartment complex as Coryell, that Johnston left the apartment that night without taking his car, and that Johnston returned later that night with money to repay a loan. Id. at 351. Johnston's fingerprint was found on the outside of Coryell's car. Id. at 352.

In imposing the death sentence, the trial court found four aggravators, ³ one statutory mitigator,⁴ and numerous nonstatutory mitigators.⁵

This Court affirmed Johnston's conviction and sentence on direct appeal. Id. at 361. Johnston subsequently filed a motion for postconviction relief. The trial court denied Johnston's postconviction motion after holding an evidentiary hearing on some of his claims. Johnston now appeals the denial of postconviction relief and has filed a habeas petition in this Court.

II. JOHNSTON'S POSTCONVICTION CLAIMS

On appeal from the denial of postconviction relief, Johnston raises ten issues: (A) counsel was ineffective for failing to adequately question juror Tracy Robinson concerning her prior misdemeanor and active capias; (B) counsel was ineffective for failing to include juror Robinson's resulting nondisclosure in a motion for new trial; (C) the postconviction court erred in denying Johnston's motion to interview juror Robinson; (D) counsel was ineffective for failing to file a motion to suppress Johnston's statements to law enforcement; (E) counsel was ineffective for failing to call Diane Busch as a witness; (F) counsel was ineffective for failing to inform the trial court or jury that Johnston was using prescribed psychotropic medication at the time of trial; (G) counsel was ineffective for offering ill-considered and improper advice concerning Johnston's need to testify; (H) counsel was ineffective for failing to present potential mitigators; (I) counsel was ineffective for failing to adequately challenge fingerprint evidence; (J) counsel was ineffective for failing to adequately challenge shoe tread evidence; (K) counsel was ineffective for failing to further question members of the venire concerning their exposure to pretrial publicity; (L) counsel was ineffective for failing to file a legally sufficient motion to disqualify the trial judge; and (M) cumulative error warrants relief.⁶ As explained below, we affirm the trial court's denial of relief.

A. Failure to sufficiently question juror Robinson at voir dire

Johnston first claims that counsel was ineffective for failing to sufficiently question juror Tracy Robinson at voir dire, suggesting that a targeted “follow-up” question would have brought out additional facts not disclosed by Robinson. He also asserts that such information would have caused defense counsel to move to strike Robinson for cause or to peremptorily exclude Robinson. We disagree.

Juror Robinson, who served as the jury foreperson, was arrested for a drug-related offense during the penalty phase. Johnston, 841 So.2d at 355. ⁷ Her arrest revealed that she pled nolo contendere approximately ten months before Johnston's trial to misdemeanor charges of obstructing a police officer without violence. Id. During voir dire, juror Robinson did not reveal her prior plea and charges. Id. Robinson also failed to pay her court costs in that obstruction case; therefore, at the time of Johnston's trial she was the subject of an active capias for civil contempt charges. Id. at 357. On direct appeal, Johnston argued that he was entitled to a new trial because of Robinson's nondisclosure and active capias. Id. at 355–57. This Court rejected Johnston's argument, holding that the capias did not statutorily disqualify Robinson and that Johnston had failed to raise the issue of Robinson's nondisclosure with the trial court. Id. at 357–58.

Following the United State Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, the defendant must demonstrate both deficiency and prejudice:

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.

Bolin v. State, 41 So.3d 151, 155 (Fla.2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986)).

There is a strong presumption that trial counsel's performance was not deficient. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. at 689, 104 S.Ct. 2052. The defendant carries the burden to “overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). “Judicial scrutiny of counsel's performance must be highly deferential.” Id. “[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000). Furthermore, where this Court previously has rejected a substantive claim on the merits, counsel cannot be deemed ineffective for failing to make a meritless argument. Melendez v. State, 612 So.2d 1366, 1369 (Fla.1992).

In demonstrating prejudice, the defendant must show a reasonable probability that “but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

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 circuit court's factual findings that are supported by competent, substantial evidence, but reviewing the circuit court's legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771–72 (Fla.2004).

First, in this case, counsel was not ineffective for failing to sufficiently question juror Robinson regarding the capias. See Ferrell v. State, 29 So.3d 959, 976 (Fla.2010) (“Trial counsel cannot be deemed ineffective for failing to raise a meritless argument.”). As this Court held on direct appeal, Robinson's civil contempt charge did not disqualify her from service under section 40.013(1), Florida Statutes (1999). Johnston, 841 So.2d at 356–57. Therefore, even if Robinson was aware of the capias...