McCrae v. State, 67629

• Decision Date: 18 June 1987
• Docket Number: No. 67629,67629
• Parties: 12 Fla. L. Weekly 310 James Curtis McCRAE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 874

510 So.2d 874

12 Fla. L. Weekly 310

James Curtis McCRAE, Appellant, v. STATE of Florida, Appellee.

No. 67629.

Supreme Court of Florida.

June 18, 1987.

Rehearing Denied Sept. 4, 1987.

Robert H. Dillinger of Dillinger & Swisher, P.A., St. Petersburg, for appellant.

Robert A. Butterworth, Atty. Gen., and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

This case is an appeal from the denial of a motion for post-conviction relief filed under Florida Rule of Criminal Procedure 3.850. Because the judgment and sentence from which relief was sought are a conviction of first-degree murder and a sentence of death, this Court has jurisdiction of the appeal. Art. V, § 3(b)(1), Fla. Const. We affirm in part and reverse in part, finding that it is necessary to remand the case for resentencing.

Appellant was convicted of first-degree murder and sentenced to death. On appeal, this Court affirmed the conviction and sentence. McCrae v. State, 395 So.2d 1145 (Fla.1980), cert. denied, 454 U.S. 1041, 102 S.Ct. 583, 70 L.Ed.2d 486 (1981). During the pendency of the appeal, jurisdiction was relinquished for consideration of a post-conviction motion. The denial of the post-conviction motion was also affirmed on appeal. Id. at 1155-56.

Appellant has twice filed collateral challenges to his conviction and sentence by means of petitions for habeas corpus. The petitions were based on arguments pertaining to due process at trial and effective assistance of counsel on appeal. We denied both petitions for habeas corpus. McCrae v. Wainwright, 439 So.2d 868 (Fla.1983); McCrae v. Wainwright, 422 So.2d 824 (Fla.1982), cert. denied, 461 U.S. 939, 103 S.Ct. 2112, 77 L.Ed.2d 315 (1983).

In 1983, appellant filed a motion for post-conviction relief which was summarily denied by the trial court. On appeal he sought a stay of the then scheduled execution of sentence. On June 13, 1983, this Court granted a stay of execution. On September 15, 1983, we issued an opinion and order remanding the case to the trial court for a statement of reasons by the court supporting the summary denial of relief or for further appropriate proceedings. McCrae v. State, 437 So.2d 1388 (Fla.1983). The trial court held an evidentiary hearing on the rule 3.850 motion and again denied the motion. The present appeal followed.

Appellant contends that he was not given effective assistance of counsel at trial in that his attorney, an assistant public defender, unreasonably failed or neglected to assert at trial the defense of insanity. To prevail on a claim of ineffective assistance of counsel a claimant must show an act or omission on the part of counsel that constituted a serious and substantial deficiency, deviating from the norm or falling outside the range of acceptable professional performance, and that the failure or deficiency had a prejudicial impact upon the defendant's case by compromising the fairness of the trial to such a degree as to undermine confidence in the accuracy and correctness of the outcome. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Smith v. State, 457 So.2d 1380 (Fla.1984); Downs v. State, 453 So.2d 1102 (Fla.1984). Appellant argues that the psychiatric reports that were prepared in anticipation of trial provided a realistic and viable insanity defense and that counsel's abandonment of such line of defense was an unreasonable choice and amounted to a serious and substantial deficiency in the representation of the defendant. We cannot agree. The psychiatric reports that had been performed on motion of the defense, while demonstrating certain mental and emotional problems and even a mild brain disorder, did not present an expert determination of insanity at the time of the offense. Taken together the reports appeared to negate the existence of facts establishing insanity at the time of the offense. The contents of the reports, the testimony counsel could expect to present based thereon, and the evidence concerning the circumstances of the offense were such that defense counsel was clearly within the range of acceptable performance when he decided not to go forward with an insanity defense.

Appellant argues that his counsel at trial was deficient in that he did nothing to correct or remedy a situation which appellant characterizes as a conflict of interest. Appellant asserts that one of the state's witnesses against him at trial was at the time a defendant in a criminal prosecution and was represented by an attorney employed in the same public defender's office as appellant's trial attorney.

At the hearing below, the attorney who represented appellant at trial testified that he did not know that the witness was being represented by another attorney in the same public defender's office. The other attorney, who represented the witness, testified that he did not discuss the defense of appellant with appellant's trial counsel. Because appellant's counsel was not aware of the situation, he cannot be charged with any deficiency for not taking some kind of action concerning the matter. Nor do we think that the situation called for counsel to make inquiry into the matter in order to be considered reasonably effective and within the range of normal, professional competence. We need not reach the question of whether there was an "actual" or "meaningful" conflict of interest that affected or must be presumed to have affected the outcome. See Porter v. State, 478 So.2d 33, 35 (Fla.1985); Foster v. State, 387 So.2d 344, 345 (Fla.1980). ¹ We simply hold that no deficiency of performance by defense counsel is shown on this point.

Appellant argues that his counsel was ineffective in presenting testimony in which appellant disclosed his past convictions because it opened the door to allow the state on cross-examination to bring out the fact that one of the past convictions was for the felony of assault with intent to murder. Based on the standard set forth in Strickland v. Washington and applied in Downs v. State and numerous other cases, we find that no substantial deficiency is shown. The state had already presented testimony of a collateral crime and similar acts based on the Williams ² rule, so the jury was already apprised of the facts of appellant's past felony conviction. Moreover, defense counsel could reasonably have expected that his defendant-witness was going to be impeached by the state by means of questioning about his prior convictions, and he was merely following the common practice of disclosing the convictions on direct examination in order to deprive the state of the opportunity to impeach, to appear forthcoming to the jury, and to emphasize that the vast majority of the defendant's prior convictions were for misdemeanors. See Lawhorne v. State, 500 So.2d 519, 520 (Fla.1986) ("anticipatory rehabilitation" is permissible to "take the wind out of the sails" of the anticipated impeachment).

Appellant contends that defense counsel at trial was ineffective by reason of the fact that he did not request a special instruction on the limited purpose of the state's Williams-rule evidence. The collateral conduct and similar-act evidence consisted of testimony about appellant having approached people on the street and about an attempt to gain entrance to a home, followed by a criminal attack on an individual. On appeal this Court held the testimony was properly admitted on the ground of relevance to the issue of identity and as showing "a common scheme or plan." McCrae v. State, 395 So.2d at 1148, 1152, 1153. The instructions given to the jury were based on the Standard Jury Instructions in use at the time of the trial. The failure to request special instructions not recognized by inclusion in the standard instructions was not ineffectiveness on the part of counsel. See, e.g., Funchess v. Wainwright, 772 F.2d 683, 691 (11th Cir.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1242, 89 L.Ed.2d 349 (1986).

The representation provided by defense counsel at trial is also questioned on the ground of the lack of a request for special additional instructions on the presumption of innocence and the state's burden of proof with regard to the underlying felony alleged as part of the felony murder charge. Again we believe that no ineffectiveness is shown because the general standard instructions on the presumption of innocence and the state's burden of proof were sufficient to apprise the jury of the applicable principles. There was no deficiency.

Appellant contends that defense counsel failed to protect his right of confidentiality in the various psychiatric examination reports requested and prepared in anticipation of trial. No sufficient argument is made on what counsel should have done or how the outcome was affected. We simply do not see any prejudice.

Appellant argues that defense counsel was deficient for failing to object to certain comments made by the prosecutor in closing argument to the jury. Appellant contends that the comments were improper because they addressed matters not supported by evidence and not relevant to any material issue. Whether to object to an improper comment can be a matter of trial strategy upon which a reasonable discretion is allowed to counsel. We do not find that there was a serious and substantial deficiency, nor does it appear that there could have been any prejudice in terms of effect on the outcome.

With regard to counsel's performance at the sentencing phase of the trial, appellant argues that counsel was ineffective in that he did not obtain and present school records on appellant showing him to have below-average intelligence. However, the psychiatric reports counsel had received contained evaluations of appellant's intelligence and showed him to be of average intelligence or at least within the normal range. Abnormally low intelligence was simply not a sentencing issue in this case. Appellant had graduated from high school, attended junior college,...