Mills v. State, 77367

• Decision Date: 04 June 1992
• Docket Number: No. 77367,77367
• Parties: Gregory MILLS, Appellant, v. STATE of Florida, Appellee. 603 So.2d 482, 17 Fla. L. Week. S339
• Court: Florida Supreme Court

Page 482

603 So.2d 482

Gregory MILLS, Appellant, v. STATE of Florida, Appellee.

No. 77367.

603 So.2d 482, 17 Fla. L. Week. S339

Supreme Court of Florida.

June 4, 1992.

Rehearing Denied Sept. 17, 1992.

Larry Helm Spalding, Capital Collateral Representative, Gail E. Anderson, Asst. CCR and Todd G. Scher, Staff Atty., Office of the Capital Collateral Representative, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen. and Barbara C. Davis, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Gregory Mills, a prisoner on death row, appeals the trial court's denial of his motion for postconviction relief. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const.; Fla.R.Crim.P. 3.850. We affirm the trial court's order.

A jury convicted Mills of first-degree murder for killing an elderly man during a residential burglary and recommended that he be sentenced to life imprisonment. The trial court overrode that recommendation and imposed a death sentence, and this Court affirmed Mills' conviction and sentence. Mills v. State, 476 So.2d 172 (Fla.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 349 (1986). After the signing of his death warrant, Mills filed a motion for postconviction relief with the trial court and a petition for writ of habeas corpus with this Court. We denied the habeas petition, but reversed the trial court's summary denial of the 3.850 motion and directed that court to hold an evidentiary hearing on the claim that trial counsel rendered ineffective assistance by failing to develop and present evidence regarding statutory and nonstatutory mental health mitigators. Mills v. Dugger, 559 So.2d 578 (Fla.1990).

Thomas Greene, an assistant public defender, represented Mills during the guilt phase of his trial in August 1979. Joan Bickerstaff, a specially hired assistant public defender, handled the penalty phase on August 20, 1979, and Greene again represented Mills at the actual sentencing in April 1980. Mills' employer, his grandfather, and his older sister testified at the penalty phase. The grandfather and sister spoke of Mills' father being shot and killed when Mills was a child, of his mother's working as a field hand with the sister being responsible for taking care of her younger siblings, and of his poverty-ridden childhood. Bickerstaff made an impassioned argument to the jury that Mills' life should be spared. She emphasized the disparate treatment received by Mills and his codefendant who testified against Mills and argued that Mills' crime was not the type that deserved the death penalty, that Mills had been raised in a ghetto, and that he was capable of being redeemed. After hearing her argument, the jury recommended that Mills be sentenced to life imprisonment.

Mills and his sister both testified before the judge in April 1980. Greene argued that the judge should follow the jury's recommendation because the aggravators should not be applied to Mills. He also argued that the statutory mitigators of impaired capacity to conform one's conduct and age had been established. The prosecutor, however, pointed out that the jury knew nothing of Mills' juvenile criminal record or that Mills had been convicted both of burglary for stealing the shotgun used to kill this victim and of armed robbery where he used that same shotgun and abducted a store clerk. After hearing both sides, the court overrode the jury's recommendation and sentenced Mills to death.

Mills called numerous witnesses at the 3.850 evidentiary hearing, including his trial attorneys. Greene, Mills' lead attorney, testified that he was responsible only for the guilt phase of the trial and, because he had no responsibility for the penalty phase, that he did nothing to develop mitigating evidence. Although he represented Mills at the actual sentencing several months after the jury made its recommendation, he only looked through the file before appearing before the judge. On cross-examination he admitted that nothing about Mills suggested a mental health examination was needed.

Bickerstaff testified that the public defender's office hired her on Saturday, August 18, 1979, to conduct the penalty phase on the following Monday. She stated that "with the benefit of hindsight" mental health evidence should have been looked at. When she met with Mills, however, he gave her no reason to think that any kind of mental impairment existed.

Bennett Ford, the assistant public defender who supervised the case and who hired Bickerstaff, testified that he was not responsible for Mills' trial and did nothing to prepare for it. He also stated that nothing about Mills led him to suspect any mental impairment. The following exchange took place during Ford's testimony.

Q [by Mills' current counsel]. Was there a tactical or strategic reason for not preparing the penalty phase in advance of the trial?

A [Ford]. No. I mean, again, twenty/twenty hindsight looking back, I don't recall any reason for not doing that.

* * * * * *

Q. Looking back on it, looking back on it today, would it have been wiser to prepare the penalty phase in advance?

A. Well looking back, and knowing what's happened ten, twelve years ago, sure, certainly I would.

* * * * * *

Q. And [mental health mitigating evidence] could have been argued to Judge Woodson had there been mental health evidence originally that Judge Woodson could not overrule the Jury with that evidence?

A. Again, twenty/twenty hindsight, my answer is yes.

In questioning by the court Ford stated that he thought Bickerstaff had done an excellent job to secure the jury recommendation of life imprisonment and that she could not have gotten a better result.

Two psychologists testified that Mills has some brain damage and that he met the criteria for the two statutory mental mitigators, i.e., extreme mental or emotional disturbance and substantially impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. One also stated that Mills' IQ is normal, that he has complete contact with reality and knew what he was doing when this crime occurred, and that the brain damage makes him impulsive. The other testified that Mills has impulse control problems and shows a lack of judgment.

Mills' sister who testified at trial and one of his brothers also testified. They recounted growing up in poverty with parents who did not function as parents and how Mills had suffered two head injuries as a child.

After hearing the testimony and argument by counsel, the court held that Mills had not established that counsel's performance was deficient for failing to develop mental health evidence because "there was nothing to indicate to reasonably competent counsel the existence of any mental mitigating factors." The court, therefore, denied the motion for relief.

Mills argues that the trial court should be reversed because, if trial counsel had presented the mental mitigating evidence developed by current counsel, it would have provided a basis for the jury's recommendation of life imprisonment and prevented affirmance of the override on appeal. He claims to have met both parts of the test for counsel's effectiveness set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), i.e., deficient performance (not presenting the currently tendered evidence) that prejudiced his defense (not preventing the trial court from sentencing him to death). We disagree.

Besides setting out the standard for gauging counsel's performance, Strickland also states: "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id. at 688, 104 S.Ct. at 2065. To that end, "a particular decision not to investigate must be directly assessed for reasonableness ..., applying a heavy measure of deference to counsel's judgments." Id. at 691, 104 S.Ct. at 2066. Moreover, "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. Therefore, "when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." Id.

In spite of these admonitions from the Supreme Court, Mills argues that his counsel were ineffective because they did nothing to prepare for the penalty phase. Any lack of preparation, however, is not apparent from the record of the penalty proceedings. Bickerstaff's statement that, "with the benefit of hindsight," she should have investigated Mills' mental health " 'is of little persuasion in these proceedings.' " Routly v. State, 590 So.2d 397, 401 n. 4 (Fla.1991) (quoting Kelley v. State, 569 So.2d 754, 761 (Fla.1990)). It also points up an admonition from Strickland:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.

466 U.S. at 689, 104 S.Ct. at 2065 (citation omitted).

As the United States Supreme Court has recognized: "A defendant's mental condition is not necessarily at issue in every criminal proceeding." Ake v. Oklahoma, 470 U.S. 68, 82, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53 (1985). None of...