Nelson v. State , SC10–540.

Citation73 So.3d 77
Decision Date07 July 2011
Docket NumberNo. SC10–540.,SC10–540.
PartiesJoshua D. NELSON, Appellant, v. STATE of Florida, Appellee.
CourtUnited States State Supreme Court of Florida


Baya Harrison, III, Monticello, FL, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Carol M. Dittmar, Assistant Attorney General, Tampa, FL, for Appellee.


This case is before the Court on appeal from an order denying a motion to vacate a judgment of conviction of first-degree murder and a sentence of death under Florida Rule of Criminal Procedure 3.850. The order concerns postconviction relief from a capital conviction for which a sentence of death was imposed, and, therefore, this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution.

Trial Court Proceedings

A jury convicted Joshua D. Nelson of robbery with a deadly weapon and the first-degree murder of Tommy Owens. See Nelson v. State, 748 So.2d 237, 240 (Fla.1999). The jury recommended death by a vote of twelve to zero. See id. The trial court followed the recommendation of the jury and sentenced Nelson to death for the first-degree murder conviction. See id. The trial court also sentenced Nelson to 189 months imprisonment for the robbery conviction. See id. In the opinion that affirmed the imposition of the death penalty, this Court detailed the following facts with regard to the murder of Owens:

Nelson and Keith Brennan wanted to leave the city of Cape Coral. The two devised a plan to murder Tommy Owens and steal his car. Nelson and Brennan knew that Owens kept a baseball bat in his car. On the evening of March 10, 1995, Owens was lured under false pretenses to a remote street. Nelson and Brennan were able to convince Owens to exit his car, whereupon Nelson hit Owens with the bat. After a number of blows, Owens eventually fell to the ground. Nelson and Brennan tied Owens' legs and arms. Owens pleaded for his life, stating that the two could take his car. After a brief discussion, Nelson and Brennan concluded that to avoid being caught, they should kill Owens. Brennan attempted to slice Owens' throat with a box cutter. Owens was not unconscious when the attacks began and he begged Nelson to hit him again with the bat so as to knock him unconscious before the stabbing continued. Nelson did as Owens requested and Brennan continued to attack Owens with the box cutter. Nelson and Brennan also continued to strike Owens a number of times with the bat. The two eventually dragged Owens' body to nearby bushes, where Owens later died.

Nelson and Brennan picked up Tina Porth and Misty Porth and the four left the city in Owens' car. After stopping in Daytona Beach, the four left the state and drove to New Jersey. At different times during the trip, Nelson and Brennan informed Tina and Misty that they had murdered Owens. Both Tina and Misty testified at trial.

Nelson and Brennan were apprehended by law enforcement officers in New Jersey. Nelson gave a video- and audio-taped confession. In the confession, Nelson detailed his account of the murder, both at the crime scene and at the place where the bat was recovered. The video-taped confession was played to the jury. Additionally, an analyst for the Florida Department of Law Enforcement testified that blood stains on Nelson's shoes, the box cutter, and a pair of underwear that the box cutter was wrapped in all matched Owens' DNA.

Id. at 239–40. This Court also outlined the recommendation of the jury to sentence Nelson to death, as well as the trial court's consideration of the aggravating and mitigating circumstances that supported the sentence of death:

Nelson was found guilty of first-degree murder and robbery with a deadly weapon. At the penalty phase, the jury recommenced death by a twelve-zero vote. The trial court found three aggravators: (1) the murder was committed in the course of a robbery; (2) the murder was especially heinous, atrocious, or cruel (HAC); and (3) the murder was committed in a cold, calculated, and premeditated manner without any pretense of legal or moral justification (CCP). The trial court also found that one statutory mitigator (age of eighteen at the time of the crime) and fifteen nonstatutory mitigators [n.1] were established. The statutory mitigator was given great weight. The first nonstatutory mitigator was given substantial weight, and the remaining nonstatutory mitigators were given from moderate to little weight. The trial court concluded that Nelson failed to establish the following statutory mitigators: (1) that he acted under the effect of extreme emotional disturbance, (2) that he was an accomplice with minor participation, (3) that he acted under the domination of another person, and (4) that his capacity to appreciate the criminality of his conduct was impaired. The trial court followed the jury's recommendation and imposed the death penalty for the first-degree murder conviction.


The judicial scrutiny of the performance of counsel is highly deferential. See Pagan v. State, 29 So.3d 938, 949 (Fla.2009). This Court employs a strong presumption that the performance of trial counsel was effective. See id. The defendant carries the burden to overcome this presumption and the assumption that the challenged action was the product of sound trial strategy. See id.

Juror Claims

Nelson first claims that trial counsel was ineffective because they failed to ensure that Nelson received a verdict and recommended sentence from a fair and impartial jury. More specifically, Nelson contends that trial counsel were ineffective for failure to move to strike for cause the venire members who were allegedly pro-death penalty, for failure to retain juror Sankis on the jury panel, and for failure to utilize peremptory challenges to remove the allegedly pro-death penalty venire members. However, the postconviction court acted correctly when it summarily denied this claim without an evidentiary hearing because the record conclusively establishes that trial counsel were not ineffective.

Effective assistance of trial counsel includes a proficient attempt to empanel a competent and impartial jury through the proper utilization of voir dire, challenges to venire members for cause, and the proper employment of peremptory challenges to venire members. See, e.g., Green v. State, 975 So.2d 1090, 1104–05 (Fla.2008); Dufour v. State, 905 So.2d 42, 53–55 (Fla.2005); Johnson v. State, 921 So.2d 490, 503–04 (Fla.2005). The test for juror competency and impartiality is whether a given juror is capable of placing any bias or prejudice aside and is willing and able to render a verdict recommendation solely on the evidence presented at trial and the instructions on the law provided by the court. See Busby v. State, 894 So.2d 88, 95 (Fla.2004). If a juror does not possess such an impartial state of mind, it is the duty of trial counsel to ferret out that state of mind during voir dire and challenge the juror for cause. See, e.g., Dufour, 905 So.2d at 54–55. Even if trial counsel challenges a juror for cause due to a perceived lack of impartiality, the trial court is not required to excuse that juror if, upon further questioning, the court establishes that the juror is able to base his or her decision on the evidence presented and the trial court's instructions on the law. See id. at 54. For example, jurors may withstand a cause challenge if they inform the court that they can impartially weigh the aggravating and mitigating factors established and, in light of the evidence presented, recommend an appropriate sentence based on that consideration. See Davis v. State, 859 So.2d 465, 474 (Fla.2003).

If the trial court denies a cause challenge, counsel may also remove a venire member through the utilization of a peremptory challenge. See Johnson, 921 So.2d at 503–04. However, the notion that a jury would have reached a different verdict if trial counsel had exercised peremptory challenges in a different manner is generally considered mere speculation that fails to rise to the level of prejudice needed to establish an ineffective assistance of trial counsel claim for which relief is granted. See id. It is a dubious proposition that a different use of peremptory challenges would have resulted in a more defense-friendly jury and verdict and sentencing recommendation. See id.

In this case, Nelson alleges that trial counsel were ineffective for the failure to convince the trial court to strike six venire members—three of whom served on the actual jury—who had an alleged predisposition in favor of the death penalty. Nelson contends that this ineffectiveness emanates from counsel's failure to support the cause challenges with legal authority. However, the purported pro-death penalty jurors under full interrogation attested to the trial court that they could recommend a sentence based on the evidence presented and the trial court's instructions on the law, and that they could weigh the aggravating and mitigating factors as they considered their recommended sentence. More specifically, when presented with venire members who had an alleged predisposition in favor of the death penalty, trial counsel did in fact move to have all of them stricken for cause. However, the initial questions to the jurors did not provide an explanation of Florida law and upon further questioning and proper explanation those venire members clearly confirmed that they could follow the law and consider the established aggravating and mitigating factors in their decision to recommend a sentence for Nelson. Trial counsel was, therefore, not ineffective for a failure to have the purported pro-death penalty venire members stricken for cause upon proper and full questioning.

Nelson also contends that trial counsel were ineffective because they failed to ensure that prospective juror Sankis served on the jury. The trial court excused prospective juror Sankis due to his clear and open adverse predisposition to the death penalty. This excusal...

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