Lopez v. Singletary, s. 75847

• Decision Date: 02 September 1993
• Docket Number: 78228,Nos. 75847,s. 75847
• Citation: 634 So.2d 1054
• Parties: 18 Fla. L. Weekly S471, 18 Fla. L. Weekly S633 Eduardo LOPEZ, Petitioner, v. Harry K. SINGLETARY, etc., Respondent. Eduardo LOPEZ, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1054

634 So.2d 1054

18 Fla. L. Weekly S471, 18 Fla. L. Weekly S633

Eduardo LOPEZ, Petitioner, v. Harry K. SINGLETARY, etc., Respondent.

Eduardo LOPEZ, Appellant, v. STATE of Florida, Appellee.

Nos. 75847, 78228.

Supreme Court of Florida.

Sept. 2, 1993.

Rehearings Denied Dec. 9, 1993 and April 20, 1994.

Michael J. Minerva, Interim Capital Collateral Representative, Gail E. Anderson, Asst. CCR and Todd G. Scher, Staff Atty., Office of the Capital Collateral Representative, Tallahassee, for petitioner/appellant.

Robert A. Butterworth, Atty. Gen. and Mary Leontakianakos, Asst. Atty. Gen., Tallahassee, for respondent/appellee.

PER CURIAM.

Eduardo Lopez, a prisoner on death row, petitions this Court for a writ of habeas corpus and appeals the trial court's denial of his motion for postconviction relief. We have jurisdiction. Art. V, Sec. 3(b)(1), (9), Fla. Const.; Fla.R.Crim.P. 3.850. We deny all relief except for remanding to the trial court for an in-camera inspection of the sealed portions of the state attorney's files to determine if those sealed portions should have been disclosed to Lopez.

In January 1983 Lopez and two companions broke into a woman's home and shot her and her eight-year-old son. The boy died, and, under a plea agreement, Lopez received a term of life imprisonment in exchange for his testimony against the accomplices. When Lopez refused to testify, the court rescinded the agreement and sentenced him to death. This Court affirmed the trial court's actions on direct appeal. ¹ Lopez v. State, 536 So.2d 226 (Fla.1988).

Governor Martinez signed a death warrant for Lopez in the spring of 1990, and Lopez filed a petition for writ of habeas corpus and asked for a stay of execution, which this Court granted. In September 1990 Lopez filed a rule 3.850 motion with the trial court, and that court denied the motion without an evidentiary hearing in June 1991. In October 1992 Lopez filed a supplemental habeas petition raising additional issues.

3.850 Motion

Lopez raises eighteen points in appealing the denial of his postconviction motion: (1) state attorney denied Lopez access to public records; (2) the court erred in not holding an evidentiary hearing; (3) Castro's ² abandonment of Lopez constituted ineffective assistance; (4) use of hypnotically induced testimony violated Lopez' rights; (5) Castro rendered ineffective assistance regarding the guilty plea; (6) Haymes was ineffective regarding the sentencing; (7) the mental health experts did not conduct competent evaluations; (8) the court applied an improper automatic aggravator; (9) Lockett ³ error occurred; (10) the court improperly refused to find mitigators; (11) Castro rendered ineffective assistance by testifying at the plea enforcement hearing; (12) the absence of an interpreter violated Lopez' rights; (13) Lopez was absent from critical stages; (14) Brady ⁴ violations occurred; (15) the avoid arrest aggravator was improperly applied; (16) Lopez' guilty plea was not knowing and voluntary; (17) Lopez was incompetent; and (18) Lopez did not knowingly and voluntarily waive the sentencing jury. Postconviction motions are not to be used as second appeals. Medina v. State, 573 So.2d 293 (Fla.1990). Issues that were, or could have been, raised on direct appeal are not cognizable on collateral attack. Johnson v. State, 593 So.2d 206 (Fla.), cert. denied, --- U.S. ----, 113 S.Ct. 119, 121 L.Ed.2d 75 (1992). Therefore, the following claims are procedurally barred because they were or could have been raised on direct appeal ⁵: (4) hypnotically induced testimony; ⁶ (7) mental health exams; (8) automatic aggravator; (9) Lockett error; (10) mitigators; (12) interpreter; (13) absence; (14) Brady violation; ⁷ (15) applicability of an aggravator; (16) propriety of guilty plea; (17) competency; and (18) jury waiver.

If a postconviction motion is denied without an evidentiary hearing, the motion and record must show that no relief is warranted. Roberts v. State, 568 So.2d 1255 (Fla.1990). As set out above, most of the issues raised in the postconviction motion are procedurally barred. Thus, as demonstrated by the motion itself and the record, no evidentiary hearing was necessary regarding them. The trial court attached portions of the record to the order denying relief, and we agree that an evidentiary hearing on the remaining issues was not needed.

Turning to the claims of ineffective assistance of counsel, we agree with the trial court that they either have no merit or are procedurally barred. In issue (3) Lopez argues that Castro improperly abandoned his representation. As found by the trial court this was not so. Castro represented Lopez through his guilty plea and Haymes represented him thereafter. Lopez has not shown the substandard performance by counsel that prejudiced him, as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Instead, any prejudice Lopez may have suffered was the consequence of his willful failure to cooperate and uphold his part of the plea agreement.

In issue (5) Lopez argues that Castro rendered ineffective assistance because he failed to investigate mental health issues and allowed Lopez to enter a guilty plea while he was incompetent. On direct appeal Lopez attacked the voluntariness of his guilty plea and his competency to enter that plea and we found his arguments meritless. Lopez, 536 So.2d at 228-30. Lopez was a difficult client, but as we noted on direct appeal, "no question regarding Lopez' competency arose until after the 1985 hearing." Id. at 230. See Mills v. State, 603 So.2d 482, 485 (Fla.1992) (defendant's mental condition not at issue in every criminal case). Charges of ineffective assistance of counsel cannot be used to get around the rule that postconviction proceedings cannot be used as a second appeal. Medina. Thus, this claim is procedurally barred now, the substance of it having been found meritless on direct appeal.

Issue (11), alleging that Castro rendered ineffective assistance by testifying at the plea revocation hearing, suffers from a similar defect. Lopez' motion to vacate the plea called into question the effectiveness of Castro's advocacy. When the state called Castro at the plea revocation hearing, Haymes objected that Castro's testifying would violate the attorney/client privilege, and the court overruled that objection because Castro's knowledge was crucial to determining the voluntariness of the plea. Cf. Wilson v. Wainwright, 248 So.2d 249, 259 (Fla. 1st DCA1971) ("a lawyer who represents a client in any criminal proceeding may reveal communications between him and his client when accused of wrongful conduct by his client concerning his representation where such revelation is necessary to establish whether his conduct was wrongful as accused."); Turner v. State, 530 So.2d 45 (Fla.1987), cert. denied, 489 U.S. 1040, 109 S.Ct. 1175, 103 L.Ed.2d 237 (1989). Thus, the substance of this issue could have been raised on direct appeal and is now barred because it was not so raised. Again, a claim of counsel's ineffectiveness cannot be used to overcome the rule that collateral attacks cannot be used as a second appeal. ⁸

Lopez attacks Haymes' effectiveness in issue (5) by arguing that Haymes failed to investigate his early life in Cuba, did not attack the failure to prosecute his accomplices, failed to develop mental health mitigating evidence, and improperly allowed Lopez to waive a sentencing jury. In denying this claim the trial court wrote that at sentencing it had been "amply apprised of all relevant mitigating and aggravating factors when making its decision, including the presentence investigation and the reports of three mental health experts. Counsel also filed a Written Notice of Mitigating Circumstances.... Additionally, Defendant knowingly and voluntarily chose not to testify on his own behalf and assisted in the decision to waive the jury in the penalty proceedings." ⁹ Lopez has not shown a deficient performance by Haymes that caused prejudice to Lopez, and we agree with the trial court's conclusion that the record does not support this claim. Cf. Mills; Medina.

Pursuant to chapter 119, Florida Statutes (1989), Lopez' current counsel requested the records of a polygraph examiner and of the doctor that hypnotized the victim's mother as well as access to the state attorney's files. The state attorney's office turned over its files except for portions it considered work product and sealed. The examiner and doctor refused to turn over their records except under court order. In issue (1) Lopez now argues that he was denied access to these records improperly.

In State v. Kokal, 562 So.2d 324, 327 (Fla.1990), we held that state attorneys must give access to those portions of their files not exempt from disclosure under chapter 119 and stated that if a state attorney "had a doubt as to whether he was required to disclose a particular document, he should have furnished it in camera to the trial judge for a determination." The instant state attorney's office had no doubt that the portions of its records that it sealed were work product and, thus, exempt from disclosure. We recently clarified this area and held that it is for a judge to determine, in an in camera inspection, whether particular documents must be disclosed. Walton v. Dugger, 634 So.2d 1059 (Fla.1993). Therefore, we direct the state attorney's office to tender to the trial court the portions of its records that it sealed for an in camera inspection of those documents. If the trial court determines that the sealed documents are exempt from disclosure, the documents will remain sealed. If the court determines that the sealed documents are not exempt, they will be disclosed to Lopez. If those documents reveal any new claims, i.e., claims other than those raised in the instant motion and petition, Lopez will have thirty days from the date of access to file an amended postconviction...