Pace v. State

• Decision Date: 22 May 2003
• Docket Number: No. SC02-519., No. SC01-1831
• Citation: 854 So.2d 167
• Parties: Bruce Douglas PACE, Appellant, v. STATE of Florida, Appellee. Bruce Douglas Pace, Petitioner, v. James V. Crosby, Jr., etc., Respondent.
• Court: Florida Supreme Court

854 So.2d 167

Bruce Douglas PACE, Appellant, v. STATE of Florida, Appellee.

Bruce Douglas Pace, Petitioner, v. James V. Crosby, Jr., etc., Respondent.

Nos. SC01-1831, SC02-519.

Supreme Court of Florida.

May 22, 2003.

Rehearing Denied September 2, 2003.

Michael P. Reiter, Capital Collateral Counsel—Northern Region, and John M. Jackson, Assistant CCC-NR, Office of the Capital Collateral Representative, Northern Region, Tallahassee, FL, for Appellant/Petitioner.

Charles J. Crist, Jr., Attorney General, and Curtis M. French, Senior Assistant Attorney General, Tallahassee, FL, for Appellee/Respondent.

PER CURIAM.

Bruce Douglas Pace appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Pace also files a petition for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons that follow, we affirm the circuit court's order denying Pace's rule 3.850 motion, and we deny Pace's petition for a writ of habeas corpus.

BACKGROUND

On November 7, 1989, investigators found Floyd Covington's bloodstained taxicab in a wooded area. Bloodstain patterns indicated that Covington was shot while he was sitting in the driver's seat, with the first shot coming from the passenger's side. Covington's body was found three days later in another wooded area approximately twelve miles from where the taxicab was found. Covington had been shot twice with a shotgun. Serology testing showed that the blood in the taxicab was consistent with Covington's type. An investigation led police to Pace, who was an acquaintance of Covington's.

During Pace's trial, the State presented evidence that Pace was seen driving Covington's taxicab on the morning of the murder; Pace's clothing had bloodstains that were consistent with Covington's blood type; Pace's fingerprint was found on the driver-side window of the taxicab; and Pace stated to a witness the night before the murder that he was going to do something he hated to do because he needed money. Pace's stepfather testified that Pace informed him that after Covington had given Pace a ride to his stepfather's home, Pace entered the home through an open window and was choked to unconsciousness. Pace told his stepfather that he awoke in the woods, lying next to a shotgun and Covington's car, and after noticing blood in the car, he grabbed the gun and left the scene. Also, on the morning after the murder, Pace's stepfather recovered from the front yard of his house two shotgun shells that were consistent with the type used to kill Covington. Pace had possession of the shotgun believed to be the murder weapon. A jury convicted Pace of first-degree murder and armed robbery.

During Pace's penalty phase, the State introduced a copy of a judgment of conviction for strong-arm robbery that Pace committed on December 4, 1981, for which he had received a fifteen-year sentence. Additionally, the State presented the testimony of probation officer Robert Mann, who testified that Pace was on parole at the time of the murder. Pace's counsel presented five witnesses: Paul Campbell, a correctional officer, who testified that Pace had been a model prisoner; Hurley Manning, Pace's high school football coach, who testified that Pace had been a hard-working football player and the type of player you would want in the program; Robert Settles, Pace's former employer, who testified that Pace had been a master sawman with a lot of potential, which Pace unfortunately had not lived up to; Evelyn Rich, Pace's aunt, who testified that Pace was a loving, caring person who came from a good, supportive family; and Lillian Rich, Pace's mother, who testified that Pace worked to support the family after Pace's stepfather left when Pace was thirteen or fourteen years old.

During the penalty phase closing arguments, the State argued that five aggravating circumstances applied: (1) Pace was on parole at the time of the murder; (2) Pace was previously convicted of a violent felony; (3) the murder was committed during the commission of a robbery; (4) the murder was committed to avoid arrest; and (5) the murder was committed in a cold, calculated, and premeditated manner. Pace's counsel argued that Pace was a human being and a good person with a good heart, and that the State exaggerated the aggravating circumstances of the murder.

The jury recommended by a seven-to-five vote that Pace be sentenced to death. The trial court followed the jury's recommendation and sentenced Pace to death, finding three aggravating circumstances: (1) Pace had a previous conviction for a violent felony; (2) Pace was on parole at the time of the murder; and (3) the murder was committed during the course of a robbery. The trial court found no mitigating circumstances. See State v. Pace, No. 88-CF-689 order at 3 (Fla. 1st Cir. Ct. order filed Nov. 16, 1989).

Pace appealed to this Court, raising seven issues.¹ This Court affirmed Pace's convictions and sentence. This Court found that the trial court erred by limiting Pace's cross-examination of a witness regarding a third shotgun shell but held that the error was harmless. Regarding Pace's penalty phase, this Court held:

[T]he aggravating circumstances of previous convictions of felony involving violence, committed while on parole, and committed while engaged in a robbery are all supported beyond a reasonable doubt. The trial judge found no statutory mitigating circumstances and, after reviewing the nonstatutory mitigating evidence, concluded that none of the suggested mitigating factors had been established. Considering the totality of the circumstances, we conclude that the record supports the trial judge's conclusion. Accord Floyd v. State, 569 So.2d 1225 (Fla.1990)

. Even if one or more nonstatutory mitigating factors were wrongfully rejected, we are persuaded beyond a reasonable doubt that the weight thereof was so insignificant that the trial judge would have imposed death. Because the aggravating circumstances outweigh any nonstatutory mitigating evidence, death is the appropriate penalty. Accord Eutzy v. State, 458 So.2d 755 (Fla.1984),

cert. denied, 471 U.S. 1045, 105 S.Ct. 2062, 85 L.Ed.2d 336 (1985); Johnson v. State, 438 So.2d 774 (Fla.1983),

cert. denied, 465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984).

Pace v. State, 596 So.2d 1034, 1035-36 (Fla.1992).

On March 7, 1997, Pace filed an amended rule 3.850 motion for postconviction relief, raising twenty-one claims.² The circuit court below (postconviction court) held a Huff³ hearing, thereafter summarily denied several of Pace's claims, and scheduled an evidentiary hearing on the remaining claims. Following the evidentiary hearing, the postconviction court entered a final order denying all relief. Pace v. State, No. 88-CF-689 (Fla. 1st Cir. Ct. order filed June 11, 2001) (postconviction order). Pace now appeals the postconviction court's denial of his rule 3.850 motion. He also petitions this Court for a writ of habeas corpus.

RULE 3.850 APPEAL

Pace's rule 3.850 appeal asserts the following: (1) the postconviction court erred by denying Pace's claim regarding ineffective assistance of penalty-phase counsel; (2) the postconviction court erred by denying Pace's claim regarding ineffective assistance of guilt-phase counsel; (3) the postconviction court erred by denying Pace's Brady⁴ claims; (4) the postconviction court erred by denying Pace's claim regarding ineffective assistance of guilt-phase counsel for failing to object to prosecutorial comments on Pace's silence; (5) Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), renders Florida's capital sentencing scheme unconstitutional; and (6) the postconviction court denied Pace access to public records. We now address each issue raised.

Issue I. Ineffective Assistance of Penalty-Phase Counsel

To establish a claim of ineffective assistance of counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. Additionally, "there is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697, 104 S.Ct. 2052. To prove prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. In Occhicone v. State, 768 So.2d 1037 (Fla.2000), this Court stated: "Counsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel's strategic decisions. Moreover, strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct." Id. at 1048 (citations omitted).

Regarding the review of a postconviction court's Strickland analysis, this Court stated:

[T]he performance and prejudice prongs are mixed questions of law and fact subject to a de novo review

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