Occhicone v. State, SC93343.

• Citation: 768 So.2d 1037
• Decision Date: 29 June 2000
• Docket Number: No. SC93343.,SC93343.
• Parties: Dominick OCCHICONE, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

768 So.2d 1037

Dominick OCCHICONE, Appellant, v. STATE of Florida, Appellee.

No. SC93343.

Supreme Court of Florida.

June 29, 2000.

Rehearing Denied October 10, 2000.

Harry P. Brody, Assistant CCRC, and John P. Abatecola, Staff Attorney, Capital Collateral Regional Counsel-Middle, Tampa, Florida, for Appellant.

Robert A. Butterworth, Attorney General, and Carol M. Dittmar, Assistant Attorney General, Tampa, Florida, for Appellee.

PER CURIAM.

We have for review the denial of Dominick Occhicone's initial motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the following reasons, we affirm the trial court's denial.

PROCEEDINGS TO DATE

In 1986, Occhicone was convicted for the first-degree murders of the mother and father of his former girlfriend, Anita Gerrety. The circumstances of the murders were described by this Court on direct appeal:

In the early morning hours of June 10, 1986 Occhicone awakened his former girlfriend by knocking on the sliding glass door to her bedroom in a house she shared with her children and her parents. The woman refused to talk with him and he left. He returned an hour or so later, armed with a handgun, and cut the telephone lines and roused the household. When the woman's father confronted him outside the house, Occhicone shot him. The woman and her daughter fled the house while Occhicone was breaking into it through a locked door. Once inside Occhicone shot the woman's mother four times.

Occhicone v. State, 570 So.2d 902, 904 (Fla. 1990). At trial, Occhicone asserted a voluntary intoxication defense claiming that his level of intoxication on the night of the murders, as well as his documented drinking habit, prevented him from having the requisite mental state to premeditate the murders. However, the jury found him guilty and recommended the death penalty for both murders by a seven-to-five vote.

Although the trial judge sentenced Occhicone to life in prison for the murder of his ex-girlfriend's father, he sentenced him to death for the murder of her mother. In support of the death sentence, the trial judge found three aggravating factors: (1) previous conviction of a violent felony; (2) murder committed during a burglary; and (3) murder committed in a cold, calculated, and premeditated manner. As statutory mitigation, the trial judge found that the murder was committed while Occhicone was under the influence of extreme mental and emotional disturbance. Finally, as nonstatutory mitigation, the judge found that Occhicone was a good prisoner and had acclimated to his custodial environment. On appeal, this Court affirmed Occhicone's conviction and sentence. See Occhicone v. State, 570 So.2d 902 (Fla.1990)

. The United States Supreme Court denied Occhicone's petition for writ of certiorari on May 20, 1991. See Occhicone v. Florida, 500 U.S. 938, 111 S.Ct. 2067, 114 L.Ed.2d 471 (1991). On July 7, 1992, Occhicone filed a petition for writ of habeas corpus in this Court, which was denied on April 8, 1993. See Occhicone v. Singletary, 618 So.2d 730 (Fla.1993).

On May 20, 1993, Occhicone filed his initial 3.850 motion raising seven issues.¹ The trial court summarily denied claims (1), (4), (5), (6), and (7) in their entirety and claims (2) and (3) in part. The trial court then conducted an evidentiary hearing on the remaining portions of Occhicone's ineffective assistance of counsel allegations contained in claims (2) and (3), and subsequently denied the remaining portions of these claims.

APPEAL

On appeal, Occhicone raises a number of issues relating to the trial court's denial of his claims.² We conclude some of these issues are procedurally barred,³ and, upon review, find the rest are without substantial merit.

CLAIMS SUMMARILY DENIED

Occhicone alleges that the lower court erred in summarily denying several of his other claims including: his Brady claim, the claim that the State presented false evidence, his competency to stand trial claim, and parts of his ineffective assistance of counsel claims.

To uphold the trial court's summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or the record must conclusively refute them. See Fla. R.Crim. Pro. 3.850(d); Peede v. State, 748 So.2d 253 (Fla.1999); Rivera v. State, 717 So.2d 477 (Fla.1998). Further, where no evidentiary hearing is held below, we must accept the defendant's factual allegations as true to the extent they are not refuted by the record. See Peede, 748 So.2d at 257

; see also Lightbourne v. Dugger, 549 So.2d 1364, 1365 (Fla.1989); Harich v. State, 484 So.2d 1239, 1241 (Fla.1986).

As his first claim, Occhicone alleges that the State withheld the names of material witnesses Lilly Lawson, Anita Gerrety, Debra Newell, Phillip Baker, David Hoffman, Barbara Talbert, and Kimberly Connell, all of whom had information of Occhicone's intoxication on the night of the offense and would have assisted the presentation of his voluntary intoxication defense. As to witnesses Hoffman and Talbert, Occhicone maintains that the State withheld notes of interviews it had with each one of them in which they told the State they saw Occhicone on the day of the murders at Shooter's Bar. Specifically, Hoffman told the State that Occhicone "had a buzz." As to Connell, Occhicone alleges that the State failed to disclose notes of an interview it had with Goddard, Connell's sister, wherein Goddard told the State that Connell had been with Occhicone on the day of the murders. Finally, as to Gerrety, Occhicone claims that the State failed to reveal notes of an interview it had with Gerrety where she stated that on the night of the murders and prior to the shootings, Occhicone had difficulty walking and was staggering, evidence which could have been used to cross-examine her at trial.

Just recently, the United States Supreme Court restated the three components that a defendant must show to successfully assert a Brady violation:

The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.

Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). This prejudice is measured by determining "whether `the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" Id. at 290, 119 S.Ct. 1936 (quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). In applying these elements, the evidence must be considered in the context of the entire record. See Haliburton v. Singletary, 691 So.2d 466, 470 (Fla. 1997)

(quoting Cruse v. State, 588 So.2d 983, 987 (Fla.1991)).

At issue in this claim are notes about possible witnesses. This Court had stated that notes of witness interviews maintained by the State constitute Brady material. See Young v. State, 739 So.2d 553 (Fla.1999)

(finding that attorney notes of interviews with State witnesses withheld from the defendant constituted a Brady violation); see also Kyles, 514 U.S. at 446-50,

115 S.Ct. 1555. The court below denied Occhicone's claim based on the materiality prong of the test as well as the fact that the record affirmatively reflects that Occhicone was aware of these witnesses and, more importantly, he knew about the information they would testify to.

Based on the record in this case, we conclude the trial court's summary denial of Occhicone's claims on this issue was proper. In fact, as conceded by Occhicone, these witnesses are allegedly material precisely because they were with him during the hours before the murders. Therefore, no one better than Occhicone himself could have known about these witnesses. Moreover, in several evaluations conducted by mental health experts appointed in this case, Occhicone stated that he had visited Shooter's Bar the days before the murders and discussed some of the people he had visited with.⁴ Therefore, this serves as further proof that Occhicone knew he had visited Shooter's Bar before the murders and was aware of these people. Additionally, some of these witnesses now complained about testified at trial; therefore, Occhicone clearly was aware of them. As noted by the trial court, Occhicone has failed to even allege that he did not know of these witnesses. Although the "due diligence" requirement is absent from the Supreme Court's most recent formulation of the Brady test, it continues to follow that a Brady claim cannot stand if a defendant knew of the evidence allegedly withheld or had possession of it, simply because the evidence cannot then be found to have been withheld from the defendant.

Next, Occhicone alleges that the State knowingly provided false testimony. In support of this claim, Occhicone relies on a sworn affidavit by State witness Lilly Lawson, a barmaid at Shooter's Bar, wherein she states: "There was tremendous pressure put on me by the police pretrial; they made things very difficult for me, and they put words in my mouth. They wanted me to testify a certain way, and they made sure I did so." Additionally, Occhicone alleges that the State failed to disclose a deal it had made with Phil Baker, a "jail-house snitch," and that it remained silent at trial when Baker denied having any understanding with the State. The trial court summarily denied these claims, finding that the testimony of both of these witnesses was not material.

Lawson's most damaging testimony at trial was that a couple of weeks prior to the murders, Occhicone told her that he felt like murdering Gerrety's parents and making her watch. However, as noted by the trial court, Lawson has not alleged that she actually lied or testified falsely at trial as to any particular fact. Moreover, she was not the only witness who testified that...