Owen v. Crosby

• Decision Date: 11 July 2003
• Docket Number: No. SC01-2146, No. SC01-2476.
• Citation: 854 So.2d 182
• Parties: Duane E. OWEN, Petitioner, v. James V. CROSBY, Jr., etc., et al., Respondents. Duane E. Owen, Appellant, v. State of Florida, Appellee.
• Court: Florida Supreme Court

854 So.2d 182

Duane E. OWEN, Petitioner, v. James V. CROSBY, Jr., etc., et al., Respondents.

Duane E. Owen, Appellant, v. State of Florida, Appellee.

Nos. SC01-2146, SC01-2476.

Supreme Court of Florida.

July 11, 2003.

Rehearing Denied September 2, 2003.

James L. Driscoll, Jr., Assistant CCRC and Eric Pinkard, Assistant CCRC, Tampa, FL, for Petitioner/Appellant.

Charles J. Crist, Jr., Attorney General, and Celia A. Terenzio, Melanie Dale, and Debra Rescigno, Assistant Attorneys General, West Palm Beach, Florida, for Respondent/Appellee.

PER CURIAM.

Duane Eugene Owen, a prisoner under sentence of death, appeals an order of the trial court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Additionally, Owen petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons expressed below, we affirm the decision of the trial court denying postconviction relief and deny habeas corpus relief.

FACTS AND PROCEDURAL HISTORY

Duane Eugene Owen (Owen) was convicted of first-degree murder, sexual battery, and burglary, and sentenced to death. The facts of the case are summarized by this Court in Owen v. State, 596 So.2d 985, 986-87 (Fla.1992):

The body of the victim, Georgianna Worden, was discovered by her children on the morning of May 29, 1984, as they prepared for school. An intruder had forcibly entered the Boca Raton home during the night and bludgeoned Worden with a hammer as she slept, and then sexually assaulted her. Owen was arrested the following day on unrelated charges and was interrogated over several weeks. He eventually confessed to committing numerous crimes, including the present murder and a similar murder in Delray Beach in March 1984. See Owen v. State, 560 So.2d 207 (Fla.1990),cert. denied, 498 U.S. 855, 111 S.Ct. 152, 112 L.Ed.2d 118 (1990). At trial on the present murder, sexual battery and burglary, the evidence consisted of Owen's confession, his fingerprint on a library book at the murder scene, and other corroborating evidence. The jury returned guilty verdicts on the charges and recommended death by a vote of ten to two. The trial judge followed the jury's recommendation and imposed death, finding the aggravating circumstances outweighed the mitigating.¹

On July 31, 1986, after Owen was convicted and sentenced, but before this Court ruled on his appeal, he prematurely filed a motion for postconviction relief. The postconviction proceeding was stayed pending his appeal, and Owen was permitted to amend his motion several times. On November 5, 1997, the trial court held a hearing pursuant to Huff v. State, 622 So.2d 982 (Fla.1993), after which the trial court summarily denied a number of claims. However, the trial court found that an evidentiary hearing was required on the following claims:

(1) Trial counsel rendered ineffective assistance in the guilt phase by failing to provide mental health experts with information necessary to conduct an accurate competency exam; (2) trial counsel rendered ineffective assistance in the guilt phase by failing to mount an insanity or any other defense and failing to call any defense witnesses; (3) attorneys Kohl and Krischer failed to disclose to Owen various conflicts of interest; (4) trial counsel was ineffective in the penalty phase by failing to investigate and present statutory and nonstatutory mitigating evidence and by presenting only one (minor) witness; (5) trial counsel was ineffective in failing to raise various issues. The court also deferred ruling on several additional claims.

Owen v. State, 773 So.2d 510, 512-13 n. 4 (Fla.2000). At the evidentiary hearing, after the first witness's testimony, Owen's counsel informed the court that Owen had decided not to proceed with the hearing because the attorney-client privilege in the Slattery murder case would be violated.² After explaining to Owen the consequences of his decision, the trial court ended the hearing and denied relief on the rule 3.850 motion.

Subsequently, Owen appealed the trial court's denial to this Court. Owen raised eighteen claims.³ This Court affirmed the trial court, finding that Owen waived any attorney-client privilege that existed between him and trial counsel when he accused counsel of ineffectiveness and conflict of interest. This Court also found that Owen waived his ineffective assistance of counsel and conflict of interest claims. Next, this Court held that the principles underlying Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), were inapplicable to the instant case. Finally, the Court found that Owen's remaining claims were procedurally barred. See Owen, 773 So.2d at 515. On June 29, 2001, Owen filed a pro se motion for postconviction relief, which was summarily denied. Owen now appeals the trial court's denial of his rule 3.850 motion. Additionally, Owen petitions this Court for a writ of habeas corpus, raising eleven claims.

LAW AND ANALYSIS

Rule 3.850 Motion

Owen raises a total of five claims on appeal from the denial of postconviction relief.⁴ We find that this successive motion is governed by Florida Rule of Criminal Procedure 3.850(f), which allows a trial court to dismiss a successive petition if it fails to allege new or different grounds and the prior determination was on the merits; or if new and different grounds are alleged, the trial court finds the failure to assert those grounds in a prior motion constituted an abuse of the procedures governed by the rule. A second or successive motion for postconviction relief can be denied on the ground that it is an abuse of process if there is no reason for failing to raise the issues in the previous motion. See Pope v. State, 702 So.2d 221, 223 (Fla. 1997). Although claims that could have been raised in a prior postconviction motion are procedurally barred, this Court has held that a defendant may file successive postconviction relief motions that are based on newly discovered evidence. See White v. State, 664 So.2d 242, 244 (Fla. 1995). In order to overcome a procedural bar, a defendant must show that the newly discovered facts could not have been discovered with due diligence by collateral counsel and raised in an initial rule 3.850 motion. See id. Based on these principles, we affirm the summary denial of relief on claims 1, 2, and 3, which are ineffective assistance of counsel claims, because these claims were raised in Owen's prior 3.850 motion. Since Owen does not base these present claims upon newly discovered evidence, that exception does not apply here. Claim 4, Owen's Brady⁵ claim, is insufficiently pled because it is unclear as to when Owen obtained the information he claims that the State withheld. Moreover, Owen fails to allege this material was in the State's possession as required under Brady. See Brady, 373 U.S. at 87, 83 S.Ct. 1194. Finally, because Owen's claims are either successive or insufficiently pled, it is unnecessary for this Court to reach the merits of claim 5 concerning the trial court's failure to attach portions of the record. Therefore, we affirm the trial court's order summarily denying postconviction relief.

Habeas Corpus Petition

Owen raises, inter alia, seven claims of ineffective assistance of appellate counsel as well as issues involving the constitutionality of Florida's capital punishment statute.⁶ After reviewing each claim, we find that Owen has failed to demonstrate that he is entitled to habeas corpus relief.⁷

We have repeatedly held that claims of ineffective assistance of appellate counsel are properly brought in a petition for writ of habeas corpus. See Thompson v. State, 759 So.2d 650, 660 (Fla.2000); Groover v. Singletary, 656 So.2d 424 (Fla. 1995); Knight v. State, 394 So.2d 997, 999 (Fla.1981). To prove ineffective assistance of appellate counsel, a claimant must show that appellate counsel performed deficiently and that the deficiency compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result. See Teffeteller v. Dugger, 734 So.2d 1009, 1026 (Fla.1999); Wilson v. Wainwright, 474 So.2d 1162, 1163 (Fla.1985). Appellate counsel is not ineffective for failing to raise issues not preserved for appeal. See Medina v. Dugger, 586 So.2d 317, 318 (Fla. 1991). However, an exception is made when appellate counsel fails to raise a claim which, although not preserved at trial, represents fundamental error. See Roberts v. State, 568 So.2d 1255, 1261 (Fla. 1990). A fundamental error is error that "reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error." Kilgore v. State, 688 So.2d 895, 898 (Fla.1997).

Owen first argues that appellate counsel was ineffective for failing to argue the State violated section 90.410, Florida Statutes (2001), and Florida Rule of Criminal Procedure 3.172 by introducing into evidence statements that he made during plea negotiations.⁸ In Stevens v. State, 419 So.2d 1058 (Fla.1982), this Court described the two-tiered process for determining whether a discussion should be characterized as a plea negotiation so as to render it inadmissible in evidence.

To determine whether a statement is made in connection with plea negotiations, a court should use

a two-tiered analysis and determine, first, whether the accused exhibited an actual subjective expectation to negotiate a plea at the time of the discussion, and, second, whether the accused's expectation was reasonable given the totality of the objective circumstances.

United States v. Robertson, 582 F.2d 1356, 1366 (5th Cir.1978) (en banc); see also United States v. O'Brien, 618 F.2d 1234 (7th Cir.), cert. denied, 449 U.S. 858, 101 S.Ct. 157, 66 L.Ed.2d 73 (1980); United States v. Pantohan, 602 F.2d 855 (9th Cir.1979). Whether a defendant's subjective expectation of negotiating a plea is

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