LeCroy v. Dugger, No. 76

• Decision Date: 24 December 1998
• Docket Number: No. 995., No. 144, No. 76, No. 89
• Citation: 727 So.2d 236
• Parties: Cleo Douglas LeCROY, Petitioner, v. Richard L. DUGGER, etc., Respondent. Cleo Douglas LeCroy, Appellant, v. State of Florida, Appellee.
• Court: Florida Supreme Court

727 So.2d 236

Cleo Douglas LeCROY, Petitioner, v. Richard L. DUGGER, etc., Respondent.

Cleo Douglas LeCroy, Appellant, v. State of Florida, Appellee.

Nos. 76,144, 89,995.

Supreme Court of Florida.

December 24, 1998.

Rehearing Denied March 2, 1999.

Stephen M. Kissinger, Chief Assistant CCR, Peter Warren Kenny, Assistant CCR, and Julie D. Naylor, Assistant CCR, for the Southern Region, Miami, for Petitioner/Appellant.

Robert A. Butterworth, Attorney General, Sara D. Baggett and Celia A. Terenzio, Assistant Attorneys General, West Palm Beach, for Respondent/Appellee.

PER CURIAM.

Cleo LeCroy appeals an order of the trial court denying relief under Florida Rule of Criminal Procedure 3.850 and petitions the Court for a writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(1), (9), Fla. Const. We affirm the denial of rule 3.850 relief, and we deny the writ.

The facts of these murders are set out fully in our opinion on direct appeal. See LeCroy v. State, 533 So.2d 750 (Fla.1988). John and Gail Hardeman were camping in a remote area of Palm Beach County on January 4, 1981, when LeCroy robbed and killed John and, because Gail happened on the scene, robbed and killed her also. LeCroy and his brother, Jon, were indicted for the murders and tried separately. Jon was acquitted and LeCroy was convicted of two counts of first-degree murder (felony murder for killing John, and premeditated murder for killing Gail) and two counts of robbery with a firearm. The jury recommended life for the murder of John and death by a seven-to-five vote for the murder of Gail. The court sentenced LeCroy to life imprisonment for the murder of John and death for the murder of Gail based on three aggravating circumstances,¹ two statutory mitigating circumstances,² and no nonstatutory mitigating circumstances. The court sentenced LeCroy to consecutive thirty-year terms on the robbery counts, with consecutive three-year mandatory minimum terms for use of a firearm. We affirmed the convictions and sentences after determining that LeCroy's age at the time of the crime, i.e., seventeen years old, did not require reversal of the death sentence.

Before LeCroy filed any postconviction motions, Governor Martinez signed a death warrant on May 17, 1990, and LeCroy filed a petition for a writ of habeas corpus in this Court. We granted a stay of execution to allow LeCroy to seek postconviction relief. He filed a rule 3.850 motion in the trial court in December 1990 and at the same time filed an amended habeas petition in this Court. The trial court denied the rule 3.850 motion without an evidentiary hearing, and LeCroy now appeals that denial.³ LeCroy also seeks relief under his pending habeas petition.⁴

I. RULE 3.850 MOTION

LeCroy first claims that the trial court erred in summarily denying rule 3.850 relief without attaching portions of the record to its order. This issue has already been decided adversely to the defendant. See Anderson v. State, 627 So.2d 1170, 1171 (Fla.1993) ("To support summary denial without a hearing, a trial court must either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion."). The trial court stated its rationale for denying each claim. We find no error.

LeCroy next claims that the trial court erred in failing to grant an evidentiary hearing on three allegations: violations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), misleading evidence, and ineffective assistance of trial counsel.⁵ We disagree. The trial court addressed this claim at length and concluded:

The burden is on the Defendant to make at least a prima facie showing that individually or cumulatively this "evidence" would have, within a reasonable probability, changed the outcome of his trial. His speculation and conjecture about what the letters and notes and opinions and cryptic references may suggest is not sufficient to warrant an evidentiary hearing, much less relief. The evidence in this case was overwhelming. The Defendant not only confessed to killing the Hardemans to the police, but he confessed to Carol Hundley and Roger Slora. A plethora of physical and circumstantial evidence corroborated those confessions and further established the Defendant's guilt. Based on the wealth of evidence against him, there is no reasonable probability that his conviction and sentence of death would have been different had the State disclosed or defense counsel discovered the evidence alleged by Defendant in this claim.

The trial court properly applied the law governing the withholding of evidence under Brady,⁶ the use of misleading evidence under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972),⁷ and ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).⁸ We find no error.

LeCroy next claims that the trial court erred in failing to grant an evidentiary hearing on his claim that trial counsel was ineffective in failing to investigate and present mitigation.⁹ We disagree. The standard for determining whether an evidentiary hearing is required on an ineffectiveness claim is as follows:

A motion for postconviction relief can be denied without an evidentiary hearing when the motion and the record conclusively demonstrate that the movant is entitled to no relief. A defendant may not simply file a motion for postconviction relief containing conclusory allegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing. The defendant must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record and that demonstrate a deficiency on the part of counsel which is detrimental to the defendant. The test for determining whether counsel has been ineffective was established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and is set forth in our opinion in Maxwell v. Wainwright[, 490 So.2d 927 (Fla.1986)]:

A claim of ineffective assistance of counsel, to be considered meritorious, must include two general components. First, a 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.

Kennedy v. State, 547 So.2d 912, 913-14 (Fla. 1989) (citations omitted). In the present case, the trial court addressed this claim at length and concluded:

[T]his Court finds that the Defendant has failed to make even a prima facie showing of prejudice which would warrant an evidentiary hearing, much less relief. Most of the allegations made by the Defendant were wholly conclusory without any basis in fact. Over and over again, the Defendant claimed that a wealth of evidence was available that defense counsel should have presented; yet, in many circumstances, the Defendant failed to detail the nature and/or source of that evidence. Nor has the Defendant come forward with proof of any additional evidence that counsel failed to discover.

As the Defendant conceded, defense counsel presented the testimony of numerous family members that the Defendant was "a nice boy from a nice family." Now, without affidavits or other proof, the Defendant claimed there was a plethora of evidence available to show that his family members were abusive and neglectful....

This Court finds that the Defendant has failed to plead specific facts which would warrant an evidentiary hearing. Even were his conclusory allegations sufficient, this Court finds that the Defendant has failed to "demonstrate a deficiency on the part of counsel which is detrimental to [him]." Counsel had the Defendant evaluated pretrial for sanity and competency by Drs. Romanos and Silversmith, and by Susan LaFehr, the jail psychologist. Counsel then had those same experts appointed to evaluate the Defendant for penalty phase mental mitigation. In addition, he had Susan LaFehr and a private investigator appointed for the penalty phase in general. This Court finds, contrary to the Defendant's assertion that Ms. LaFehr was provided with significant background material upon which to make a competent mental health evaluation. Moreover, this Court finds significant the trial judge's endorsement during the trial of Ms. LaFehr as a competent mental health expert.

. . . .

As for that evidence sufficiently detailed by the Defendant which he claimed should have been admitted, this Court finds that such evidence would not have, within a reasonable probability, had an effect on the sentence. The Defendant committed a brutal double murder, but received only one death recommendation and sentence. Besides the fact that he committed these murders during the commission of a robbery, the jury specifically found that he premeditated the murder of Gail Hardeman. Such a finding was undoubtedly based on the Defendant's own confession that he killed Gail Hardeman to eliminate her as a witness to her husband's murder. The three aggravating factors in this case are very strong. Weighed against these aggravators was substantial evidence of the Defendant's youth and immaturity, his lack of a significant prior history or criminal activity, and other allegedly redeeming qualities. Yet, despite this mitigation, the jury still recommended death for the murder of Gail Hardeman, and this court still imposed a sentence of death. Given the circumstances of this murder, and the weight of the aggravating factors, there is no reasonable

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