Owen v. State, SC06-2104.

• Decision Date: 08 May 2008
• Docket Number: No. SC07-650.,No. SC06-2104.,SC06-2104.,SC07-650.
• Parties: Duane Eugene OWEN, Appellant, v. STATE of Florida, Appellee. Duane Eugene Owen, Petitioner, v. Walter A. McNeil, etc., Respondent.
• Court: Florida Supreme Court

986 So.2d 534

Duane Eugene OWEN, Appellant, v. STATE of Florida, Appellee.

Duane Eugene Owen, Petitioner, v. Walter A. McNeil, etc., Respondent.

No. SC06-2104.

No. SC07-650.

Supreme Court of Florida.

May 8, 2008.

As Revised on Denial of Rehearing July 10, 2008.

Bill Jennings, Capital Collateral Regional Counsel, and James L. Driscoll, Jr., Assistant CCR Counsel, Middle Region, Tampa, FL, for Appellant/Petitioner.

Bill McCollum, Attorney General, Tallahassee, FL, and Celia Terenzio and Leslie T. Campbell, Assistant Attorneys General, West Palm Beach, FL, for Appellee/Respondent.

PER CURIAM.

Owen appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851 and 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 circuit court's order and deny Owen's petition.

I. FACTUAL AND PROCEDURAL HISTORY

Duane Owen was convicted of burglary, sexual battery, and first-degree murder for the 1984 murder of Karen Slattery. The facts of Slattery's murder and Owen's subsequent confession were set out in detail in Owen v. State, 560 So.2d 207 (Fla. 1990) (Owen I). On direct appeal, this Court reversed Owen's convictions and sentence and remanded for a new trial due to a violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Owen I, 560 So.2d at 211. After this Court's decision in Owen I, the United States Supreme Court issued Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), which held that police are not required to cease questioning if a suspect makes an ambiguous or equivocal request for counsel. In State v. Owen, 696 So.2d 715, 720 (Fla.1997) (Owen II), this Court found that the principles announced in Davis applied to the admissibility of confessions in Florida and held that the admissibility of Owen's confession in his retrial would be subject to the Davis rationale.

Following retrial, Owen was found guilty of first-degree murder, attempted sexual battery, and burglary. After the penalty phase, the jury recommended by a ten-to-two vote that Owen be sentenced to death. The trial judge followed the jury's recommendation and imposed a death sentence for the murder conviction, sentenced Owen to fifteen years for the attempted sexual battery, and sentenced Owen to life for the burglary. The trial judge found four aggravating circumstances,¹ three statutory mitigating circumstances,² and sixteen nonstatutory mitigating circumstances.³ State v. Owen, Case No.: 84-4014CF A02 (Fla. 15th Cir. Ct. sentencing order filed March 23, 1999) (Sentencing Order).

Owen appealed his murder conviction and sentence, raising seven issues on direct appeal.⁴ This Court found all of Owen's claims were without merit and affirmed the convictions and sentence of death. Owen v. State, 862 So.2d 687 (Fla. 2003) (Owen III).

Owen subsequently filed a motion for postconviction relief pursuant to rule 3.851, raising eight claims, which included numerous subissues.⁵ During a March 31, 2006, case management conference, the trial court granted Owen leave to amend his motion to avoid summary denial of several claims. On May 18, 2006, Owen filed his first amended motion for postconviction relief. The trial court conducted an evidentiary hearing on some of Owen's claims. On September 21, 2006, the trial judge issued an order denying relief. State v. Owen, Case No. 84-4014CF A02 (Fla. 15th Cir. Ct. order filed September 22, 2006) (Postconviction Order). Owen now appeals the trial court's order, raising five claims.⁶ Owen has also filed a petition for writ of habeas corpus, raising three claims.⁷

II. APPEAL FROM DENIAL OF POSTCONVICTION RELIEF

A. Claims Denied Without Evidentiary Hearing

Owen argues that the trial court erred in summarily denying several of his ineffective assistance of counsel claims and his claims based upon Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). An evidentiary hearing must be held whenever the movant makes a facially sufficient claim that requires a factual determination. Amendments to Fla. Rules of Crim. Pro. 3.851, 3.852, & 3.993, 772 So.2d 488, 491 n. 2 (Fla.2000). "Postconviction claims may be summarily denied when they are legally insufficient, should have been brought on direct appeal, or are positively refuted by the record." Connor v. State, 979 So.2d 852, 868 (Fla.2007). A court's decision whether to grant an evidentiary hearing is subject to de novo review. See State v. Coney, 845 So.2d 120, 137 (Fla.2003).

1. Motion to Suppress

Owen argues that the trial court erred in summarily denying his claim that trial counsel was ineffective for failing to sufficiently challenge on retrial the admission of Owen's statements to law enforcement officers. We find no error in the summary denial because each of Owen's proposed grounds for suppression is without merit. Allegations that counsel was ineffective for not pursuing meritless arguments are legally insufficient to state a claim for postconviction relief. See Melendez v. State, 612 So.2d 1366, 1369 (Fla.1992) (holding counsel cannot be deemed ineffective for failing to make meritless argument).

First, Owen asserts that counsel was deficient for not arguing that Owen's confession should be suppressed because law enforcement officers lacked probable cause to arrest Owen when he was seized. The trial court did not err in summarily denying this subclaim because it is legally insufficient and procedurally barred. On direct appeal from Owen's original conviction, this Court rejected prior appellate counsel's argument that Owen's confession should have been suppressed on the basis that he was illegally seized after finding that the police had probable cause to arrest Owen. Owen I, 560 So.2d at 210. To the extent that this Court authorized relitigating the admissibility of Owen's confession in Owen II, it did so only in the context of whether law enforcement officers violated Owen's right to remain silent. All other issues decided in Owen I became the law of the case. Owen's retrial counsel did not err by not rearguing the seizure issue because the finding that the police had probable cause was the law of the case.

In an attempt to avoid the effect of this Court's decision in Owen I, Owen argues that his counsel at his first trial was ineffective for failing to argue that Owen was seized on May 29, 1984, rather than on May 30, 1984, as three law enforcement officers testified during the hearing on Owen's motion to suppress. We find that the postconviction trial court properly denied this claim.

During his first direct appeal, Owen filed a supplemental pro se brief with this Court. In that brief, Owen argued that he was illegally seized when he "was stopped while walking down the sidewalk at approximately 10:30 AM on May 29th, 1984, by a Boca Raton police officer who was acting on a photograph which looked similar to the appellant." In support of his argument, Owen filed an appendix to his brief that included two "Advisement of Rights" forms. One form was signed "Dana L. Brown," Owen's alias, and dated 1:10 p.m., May 29, 1984. The other form was signed "Duane E. Owen," and dated 5:45 p.m., May 29, 1984. Thus, when this Court held that the "police had more than founded suspicion, they had probable cause" to stop and seize Owen, see Owen I, 560 So.2d at 210, this Court had before it that which is now raised as the basis of an ineffective assistance of counsel claim. Given this record, the postconviction trial court did not err in summarily denying Owen's claim. Owen's postconviction claim reargues the same legal issue, based on the same factual allegations, that was raised in his direct appeal and thus is procedurally barred. Moreover, Owen's postconviction allegations fail to state a prima facie claim of prejudice. Owen's allegation that "numerous law enforcement documents show that Mr. Owen was held in the unlawful custody of the Boca Raton Police Department, including the rights forms signed Dana Brown and Duane Owen on May 29, 1984, and an evidence log with the same date" does not undermine confidence in these proceedings because the majority of this information was presented to this Court on direct appeal.

Second, Owen asserts that counsel was deficient for not arguing that Owen's confession should be suppressed because it was obtained in violation of his Sixth Amendment⁸ right to counsel. Owen argues that his right to counsel in the Slattery murder case attached at his first appearance on an unrelated burglary charge, where the facts of the homicide were used to increase his bond from $1000 to $100,000. The trial court did not err in denying this subclaim because it is legally insufficient—the asserted ground for suppression is without merit as a matter of law.⁹ This Court has explained that "the Sixth Amendment right to the assistance of counsel is `offense specific' and applies only to the offense or offenses with which the defendant has actually been charged, and not to any other offense he may have committed but with which he has not been charged." Ibar v. State, 938 So.2d 451, 470 (Fla.2006). The Sixth Amendment right to counsel "attaches at the earliest of the following points: formal charge, preliminary hearing, indictment, information, or arraignment." Smith v. State, 699 So.2d 629, 638 (Fla.1997). At the earliest, Owen's right to counsel in the Slattery murder attached when he was charged with that offense on June 22, 1984. As a result, his June 21, 1984, confession could not have been obtained in violation of such right.

Third, Owen asserts that counsel was deficient for not arguing that Owen's confession should be suppressed because it was made during what Owen reasonably...