Jones v. State, No. SC01-734

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM.
• Citation: 855 So.2d 611
• Decision Date: 11 September 2003
• Docket Number: No. SC01-734, No. SC02-605.
• Parties: Victor Tony JONES, Appellant, v. STATE of Florida, Appellee. Victor Tony Jones, Petitioner, v. James V. Crosby, Jr., Secretary, Department of Corrections, State of Florida, Respondent.

855 So.2d 611

Victor Tony JONES, Appellant,
v.
STATE of Florida, Appellee.
Victor Tony Jones, Petitioner,
v.
James V. Crosby, Jr., Secretary, Department of Corrections, State of Florida, Respondent

Nos. SC01-734, SC02-605.

Supreme Court of Florida.

September 11, 2003.

Rehearing Denied September 11, 2003.

855 So.2d 613

William M. Hennis, III, Assistant CCRC, Office of the Capital Collateral Regional Counsel, South, Fort Lauderdale, FL, for Appellant/Petitioner

Charles J. Crist, Jr., Attorney General, and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appellee/Respondent.

PER CURIAM.

Jones, an inmate currently incarcerated under a sentence of death, appeals an order of the circuit court denying relief, after an evidentiary hearing, on his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Jones also has filed a petition for writ of habeas corpus in this Court. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. Having heard oral argument and considered each of the issues raised here, we both affirm the lower court's order and deny the defendant's petition.

I. FACTS

Appellant was convicted of two counts of first-degree murder and two counts of armed robbery. He was sentenced to death for both murders and to life imprisonment on each of the robbery counts,

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with all sentences to run consecutively. The facts of appellant's crimes are more fully discussed in this Court's opinion in Jones v. State, 652 So.2d 346 (Fla.), cert. denied, 516 U.S. 875, 116 S.Ct. 202, 133 L.Ed.2d 136 (1995). In December 1990, Jones, on his second day of work for Matilda and Jacob Nestor, an elderly couple, killed them both at their place of business. He stabbed Mrs. Nestor once in the back, severing her aorta. As Mr. Nestor approached, appellant stabbed him in the chest, penetrating his heart. Nestor, however, retreated to his office where he extracted the knife, attempted to telephone for help, and fired his .22 caliber pistol five times, striking Jones in the forehead once. No valuables were found on either victim or in Mrs. Nestor's purse, and Mr. Nestor's body had been rolled over for removal of valuables from his pockets. When the police arrived, they broke down the locked door and found appellant inside the locked building, slumped on a couch with Nestor's pistol under his arm and with Mrs. Nestor's purse. The couple's personal valuables and wallets were retrieved from appellant's pockets. After taking appellant outside, police realized appellant had been shot and took him to the hospital. Appellant told officers that Nestor shot him and told an intensive care nurse that he killed the couple because they owed him money

On direct appeal, this Court affirmed the convictions and sentences. Jones, 652 So.2d at 353.¹ Jones later filed a motion and an amended motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, asserting 22 issues.² After

855 So.2d 615

a Huff³ hearing, the court granted an evidentiary hearing limited to appellant's claims of ineffective assistance of counsel related to a voluntary intoxication defense, mitigation, and appellant's pretrial competency. After the evidentiary hearing, the lower court denied relief on all claims

In this appeal Jones raises five issues, several of which include subissues.⁴ We find it unnecessary to address each claim here and affirm the lower court's denial of relief as to all of the issues raised. We discuss only two of appellant's claims: (1) that trial counsel was ineffective for failing to investigate and present a

855 So.2d 616

voluntary intoxication defense at trial, and (2) that counsel failed properly to investigate and present available mitigation during the penalty phase.

II. STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL

Under the standard announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to prevail on a claim that counsel provided constitutionally ineffective assistance, a defendant must demonstrate specific acts or omissions of counsel that are "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Second, the defendant must demonstrate prejudice by "show[ing] that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. With regard to penalty phase claims of ineffective assistance, this means that the death-sentenced defendant must show that but for counsel's errors, the defendant probably would have received a life sentence. See Rose v. State, 675 So.2d 567, 570-71 (Fla. 1996). A defendant meets this burden by showing that counsel's errors deprived the defendant of a reliable penalty phase proceeding. Id. Ineffective assistance of counsel claims present mixed questions of law and fact subject to plenary review based on the Strickland test. Id. at 571. This requires the Court independently to review the trial court's legal conclusions, while giving deference to the trial court's factual findings.

III. VOLUNTARY INTOXICATION DEFENSE

Appellant claimed that his trial counsel was ineffective for failing to investigate and present a voluntary intoxication defense, and that he was prejudiced because such intoxication negates specific intent, the requisite mental state for firstdegree murder. The trial court concluded that trial counsel chose not to present a voluntary intoxication defense as a matter of trial strategy and that appellant failed to establish prejudice, the second prong of Strickland. We agree.

This Court has held that it will not second-guess counsel's strategic decisions about whether to pursue an intoxication defense. Johnson v. State, 769 So.2d 990, 1001-02 (Fla.2000); see Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (holding that "strategic 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"). At the hearing below, appellant's trial counsel testified that he was aware that a toxicology report indicated that appellant's blood contained trace indications of the presence of cocaine. He stated that he did not pursue a voluntary intoxication defense for several reasons. First, it was his experience that juries did not accept voluntary intoxication as a defense or mitigating factor, especially when the charge is murder. In addition, appellant told counsel that he was not intoxicated at the time of the murders and that he was innocent—i.e., that an intruder killed his employers. Thus, the evidence supports the trial court's determination that counsel's decision not to pursue an intoxication defense was a reasonable, strategic one. See Stewart v. State, 801 So.2d 59, 65 (Fla.2001) (holding that counsel was not ineffective for failing to employ a voluntary intoxication defense where, at an evidentiary hearing, defense counsel testified that he considered an intoxication defense but determined that it was not a viable defense based on the facts of the case). In addition, appellant maintained his innocence, a defense inconsistent

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with an intoxication defense. See Cherry v. State, 781 So.2d 1040, 1050 (Fla. 2000) (stating that voluntary intoxication defense is wholly inconsistent with the defense of innocence), cert. denied, 534 U.S. 878, 122 S.Ct. 179, 151 L.Ed.2d 124 (2001); Combs v. State, 525 So.2d 853, 855 (Fla. 1988) (rejecting ineffective assistance claim because the "presentation of an intoxication defense would have been inconsistent with Combs' testimony that he was at home at the time of the murder and did not commit the offense").

Finally, to assert a voluntary intoxication defense, a defendant must present evidence of intoxication at the time of the offense that would establish the defendant's inability to form the requisite specific intent. Rivera v. State, 717 So.2d 477, 485 (Fla.1998); see also Linehan v. State, 476 So.2d 1262, 1264 (Fla.1985) (emphasizing that voluntary intoxication is an affirmative defense and that defendant must come forward with evidence of intoxication, not just use of intoxicants, at the time...