Kimbrough v. State

• Decision Date: 24 June 2004
• Docket Number: No. SC02-1158, No. SC03-228.
• Citation: 886 So.2d 965
• Parties: Darius Mark KIMBROUGH, Appellant, v. STATE of Florida, Appellee. Darius Mark Kimbrough, Petitioner, v. James V. Crosby, Jr., Respondent.
• Court: Florida Supreme Court

886 So.2d 965

Darius Mark KIMBROUGH, Appellant, v. STATE of Florida, Appellee.

Darius Mark Kimbrough, Petitioner, v. James V. Crosby, Jr., Respondent.

Nos. SC02-1158, SC03-228.

Supreme Court of Florida.

June 24, 2004.

Rehearing Denied as August 31, 2004.

Robert T. Strain, Assistant CCRC and Carol C. Rodriguez, Assistant CCRC, Capital Collateral Regional Counsel — Middle Region, Tampa, FL, for Appellant/Petitioner.

Charles J. Crist, Jr., Attorney General, and Scott A. Browne, Assistant Attorney General, Tampa, FL, for Appellee/Respondent.

Rehearing Denied as to SC02-1158 August 31, 2004.

PER CURIAM.

Darius Mark Kimbrough appeals an order of the circuit court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and petitions the Court for a writ of habeas corpus.¹ We affirm the circuit court's order denying Kimbrough's rule 3.850 motion, and we deny Kimbrough's petition for a writ of habeas corpus.

FACTUAL AND PROCEDURAL BACKGROUND

Kimbrough was convicted of first-degree murder on July 1, 1994, and was sentenced to death on December 9, 1994. His conviction and sentence were affirmed by this Court on direct appeal. The relevant facts as taken from the opinion on direct appeal are:

Kimbrough was convicted of first-degree murder, burglary of a dwelling with a battery therein, and sexual battery with great force and was sentenced to death consistent with a jury recommendation of eleven to one. The victim, Denise Collins, was found nude and semi-conscious in her bathroom by paramedics; she was covered with blood. The sliding glass door to her second floor apartment was partially open, and there were some ladder impressions under the balcony. Collins was rushed to the hospital, where she died soon thereafter.

The officers took semen evidence from the bedsheets, took blood evidence from the victim, and found pubic hairs in the bed and in a towel. The samples were sealed in a bag and sent to the Florida Department of Law Enforcement lab for analysis.

A resident of the apartment complex — Lee — told officers that he had twice seen a man in the vicinity of the apartment and had seen a ladder on the apartment's balcony. Officers were unsuccessful in searching for the man, but later Lee identified Kimbrough from a picture lineup. A workman in the complex — Stone — identified Kimbrough as a man who had watched him putting away a ladder in the complex around the time of the murder.

The DNA evidence showed that the semen taken from the bedsheets was compatible with Kimbrough's, and some of the pubic hairs matched his. There were, however, additional pubic hairs from another unidentified black man and a caucasian male. The DNA evidence indicated that the blood samples taken from the bed matched Kimbrough's.

The medical examiner testified at trial that the victim had a fractured jaw and fracturing around her left temple. The cause of death was hemorrhaging and head injury in the brain area resulting from blunt injury to the face. There was also evidence of vaginal injury, including tears and swelling consistent with penetration. There were bruises on her arms.

The defense's theory suggested that the victim's ex-boyfriend — Gary Boodhoo — had committed the crime since he was with the victim shortly before, had used a ladder before at her apartment, had a key, and had beaten her previously. The evidence of prior beating was excluded.

In the sentencing order, the judge listed three aggravators: prior violent felony, committed during the course of a felony, and heinous, atrocious, or cruel (HAC). To support the prior violent felony aggravator, the judge cited Kimbrough's prior convictions for both burglary of a dwelling with battery therein and sexual battery. The court found that the murder here was committed during sexual battery or attempt to commit sexual battery, citing DNA evidence and bruising, as well as evidence that the victim and defendant did not know each other. HAC was supported by the size of the victim, the three blows to her head causing fracture by blunt force, evidence of a struggle (the room was in disarray), and the amount of blood found around the room.

The judge considered age as a statutory mitigator (Kimbrough was nineteen), but rejected it because there was no evidence establishing that he was immature or impaired. The court considered the following nonstatutory mitigation: Kimbrough had an unstable childhood, maternal deprivation, an alcoholic father, a dysfunctional family, and a talent for singing. The court found that the mitigation did not temper the aggravators.

Kimbrough v. State, 700 So.2d 634, 635-36 (Fla.1997).

Kimbrough filed a rule 3.850 motion on July 30, 1998, and an amended motion on March 10, 2000, raising twenty claims.² The court held a Huff³ hearing on September 22, 2000. At the hearing, Kimbrough dropped three of his claims,⁴ and the court granted an evidentiary hearing on three other claims.⁵

On April 26, 2002, after an evidentiary hearing, the court issued a detailed twenty-seven-page order denying Kimbrough 3.850 relief on all of his claims. This appeal followed.

Kimbrough appeals the denial of relief on claim nineteen and the denial of an evidentiary hearing on claims two, four, six, seven, and eighteen. Kimbrough also petitions this Court for a writ of habeas corpus.

I. AKE CLAIM

Kimbrough alleges that his trial counsel was ineffective and deprived him of the expert mental health assistance required by Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). He alleges that defense counsel was ineffective for failing to call mental health experts, for failing to provide mental health experts with sufficient background information, and for failing to present statutory and nonstatutory mitigating evidence.

The State argues that the two experienced defense attorneys in this case provided extensive background evidence to the jury and hired two well-qualified experts to examine Kimbrough prior to the penalty phase. The State argues that trial counsel made a reasonable strategic decision not to present expert testimony during the penalty phase. Testimony from the evidentiary hearing on this claim is summarized below.

Testimony of Defense Counsel

Kimbrough was represented at trial by two attorneys, Patricia Cashman and Kelly Sims. Both Sims and Cashman are very experienced in capital cases. Cashman testified that Dr. Eric Mings, a forensic criminal psychologist, was retained to conduct a psychological evaluation of Kimbrough and was originally listed as a defense witness. On February 11, 1994, prior to trial, Cashman filed a notice striking Mings from the witness list. Mings was removed from the list quickly so that the State could not depose him. Although she could not recall all of the reasons she had for striking Mings from the witness list, she stated that one of the reasons she struck Mings was because of the things Mings said about Kimbrough being a "psychopathic deviant" and the fact that she thought such testimony would hurt him in front of the jury. Cashman testified that the decision not to call Mings was a joint decision, made by her and Sims, and stated that before making such a decision she would have asked Mings whether he thought he could be helpful as a witness.

At the hearing, Cashman reviewed a note she wrote while preparing for the Kimbrough trial. The note reflected that Kimbrough denied having any problems, had relatives in Tennessee, was raised by his stepfather, and had no history of abuse. The "worst thing that happened to him" was that his cousin was killed at the age of sixteen. Kimbrough won talent show trophies for singing and had an intelligence quotient (IQ) of seventy-six, which was in the fifth percentile on the Wechsler Adult Intelligence Scale test (WAIS). He had an MMPI (Minnesota Multiphasic Personality Inventory) which was valid, but defensive. The note also stated that there was a spike on "scale four, psychopathic deviant⁶ endorsing items consistent with family discord, other scales normal." She did not recall what exactly Mings told her about the psychopathic deviate scale.

Cashman had defended a number of cases prosecuted by Jeff Ashton, the prosecutor in this case, and was familiar with him and his trial tactics. She stated that Ashton liked to use a spike on scale four of the MMPI "[t]o make my client look really dangerous and make the jury scared of him and want to kill him."

In addition to Mings, Cashman retained Dr. Robert Berland, a forensic psychologist, to conduct a pretrial evaluation of Kimbrough. Cashman apparently retained Berland in an attempt to find an expert who might be more favorable to Kimbrough for mental health mitigation purposes. Although Berland thought there were mental health issues which could have been presented at the penalty phase, he thought they would be difficult to present to the jury. Cashman chose not to put Berland on the stand because she thought he would testify that Kimbrough had "hidden craziness." She was concerned that the prosecution would portray Kimbrough as faking mental illness and noted that Berland's intelligence testing, which gave Kimbrough an IQ of ninety-four, placed him in the normal range of intelligence. Cashman was aware that the cutoff for mental retardation was seventy and that seventy-six reflected a low IQ.

Cashman testified that she always ensured the mental health experts she retained had adequate background information on her clients. She recalled that Kimbrough's family members were not particularly cooperative in this case.

Kelly Sims, Cashman's cocounsel, was certain that he had telephone conversations with Mings prior to the time Cashman wrote the note that was found in Kimbrough's file. Sims stated that his practice at the time was not to write notes that could prove harmful to his client because he thought they could fall into the wrong hands. Although he said Cashman was better at taking notes than h...