Parker v. State
| Decision Date | 24 March 2005 |
| Docket Number | No. SC02-1471, No. SC03-1045. |
| Citation | 904 So.2d 370 |
| Parties | Dwayne Irwin PARKER, Appellant, v. STATE of Florida, Appellee. Dwayne Irwin Parker, Petitioner, v. James V. Crosby, Jr., Respondent. |
| Court | Florida Supreme Court |
Neal A. Dupree, Capital Collateral Regional Counsel-South and Dan D. Hallenberg, Assistant CCRC, Fort Lauderdale, FL, for Appellant/Petitioner.
Charles J. Crist, Jr., Attorney General, Tallahassee, FL and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, FL, for Appellee/Respondent.
Dwayne Parker, a prisoner under a sentence of death, appeals an order of the trial court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.851, and he petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons stated below, we affirm in part and reverse in part the trial court's summary denial of Parker's initial motion for postconviction relief and remand for an evidentiary hearing on several issues. We also deny Parker's request for habeas relief.
Shortly after 11 p.m. on April 22, 1989, Ladson Marvin Preston and Dwayne Parker entered a Pizza Hut in Pompano Beach. Preston was unarmed, but Parker was armed with both a small pistol and a semiautomatic machine pistol. They forced the manager to open the safe at gunpoint, and Parker then returned to the dining room and robbed the customers of money and jewelry. Sixteen customers and employees were in the restaurant at the time. Parker fired six shots from the semiautomatic machine pistol during the robberies, wounding two customers.
While Parker was in the dining room, an employee escaped from the restaurant and telephoned 911 from a nearby business. Broward County deputies arrived shortly, and first Preston and then Parker left the restaurant. Deputy Robert Killen confronted Parker in the parking lot, and Parker fired five shots at him with the semiautomatic machine pistol. Parker then ran into the street and tried to commandeer a vehicle occupied by Keith Mallow, his wife, and three children. Parker fired the machine pistol once into the car and then fled.
When an unknown person entered a nearby bar and told the patrons that the Pizza Hut was being robbed, several of those patrons, including William Nicholson, the homicide victim, left the bar and went out into the street. Tammy Duncan left her house when she heard the shots. Duncan saw Parker carrying a gun and running down the street with Nicholson chasing after him. Duncan heard another shot and then saw Nicholson clutch his midsection and fall to the ground.
Eventually, deputies Edward Baker, Killen, and Kevin McNesby cornered Parker between two houses. McNesby's police dog subdued Parker, and he was taken to the sheriff's station. The machine pistol and some of the stolen jewelry were found on the ground when Parker was taken into custody. At the station, money and more stolen jewelry were found on Parker.
A Broward County grand jury indicted Parker on one count of first-degree murder, two counts of attempted first-degree murder, and nine counts of armed robbery. Six shell casings were found inside the restaurant, five in the parking lot, and one in the street near the spot where Nicholson fell. The State's firearms expert testified that all twelve shell casings as well as the bullet recovered from Nicholson's body had been fired from Parker's semiautomatic machine pistol. The defense argued, however, that the bullet was misidentified and that a deputy had shot Nicholson. The jury found otherwise and convicted Parker of murder and armed robbery, and on the two counts of attempted murder found him guilty of the lesser offense of aggravated battery with a firearm. The jury recommended a sentence of death by a vote of eight-to-four. The trial court agreed with the jury's recommendation and sentenced Parker to death. The trial judge found four aggravating factors: (1) Parker had a prior conviction of a violent felony; (2) Parker knowingly created a great risk of death to many persons; (3) the murder was committed while Parker was engaged in committing, or during flight after committing, a robbery; and (4) the murder was committed to avoid or prevent arrest. The court found that no statutory or nonstatutory mitigating circumstances had been established. This Court affirmed the convictions and sentences. Parker v. State, 641 So.2d 369, 372-78 (Fla.1994),cert. denied, 513 U.S. 1131, 115 S.Ct. 944, 130 L.Ed.2d 888 (1995).
In 1996, pursuant to chapter 119 of the Florida Statutes, Parker requested that the sheriff provide public records relevant to the investigation of Parker's case. In response, the sheriff made certain records available on June 4, 1996. Parker filed a motion for postconviction relief pursuant to rules 3.850 and 3.851 of the Florida Rules of Criminal Procedure on March 24, 1997, and requested leave to amend the motion once the State complied with all outstanding public records requests. Subsequently, in 1998, Florida Rule of Criminal Procedure 3.852(h)(2) was enacted. Rule 3.852(h)(2) permitted capital defendants who were represented by collateral counsel as of October 1, 1998, and who had already initiated the public records process to file within ninety days of October 1, 1998, a written demand for additional public records that had not previously been the subject of a request for public records. On December 29, 1998, pursuant to rule 3.852(h)(2), Parker filed multiple, written requests for additional public records, including four separate written requests asking the sheriff to provide certain additional public records that had not been the subject of a previous public records request. The sheriff objected, and the trial court sustained the objection. On June 5, 2000, Parker filed an amended postconviction motion.
The trial court scheduled a Huff1 hearing for April 18, 2001. Meanwhile, in March 2001, Parker filed requests for additional public records under rule 3.852(i) based upon newly discovered information of allegations of improper conduct by the sheriff's office in several murder cases. Included in the information were allegations against some of the detectives that investigated Parker's case. At the April 18 hearing, the court denied Parker's requests for additional public records. The court also denied Parker's renewed requests for the personnel and internal affairs files of the officers involved in the investigation of his case. However, the sheriff agreed to provide internal affairs records of two detectives. On February 8, 2002, the court issued a written order summarily denying all of Parker's claims. Parker filed a motion for rehearing and an amendment to the motion for rehearing, which were denied. Parker filed a timely notice of appeal. Simultaneously with the filing of Parker's initial brief in this case, he filed a petition for writ of habeas corpus.
While Parker raises fourteen issues in this appeal from the denial of postconviction relief,2 we reverse the order of the trial court solely with respect to portions of the first issue, alleging ineffective assistance of counsel at the guilt and penalty phases, and remand for an evidentiary hearing. We affirm the order with respect to the remaining issues.3
Parker alleges that the trial court erred in summarily denying his claims of ineffective assistance of counsel during the guilt and penalty phases of his trial. In his amended postconviction motion, Parker set forth a number of claims which he contends require an evidentiary hearing: (1) trial counsel failed to present expert testimony (a) to show that the color of the photographs showing the fatal bullet was subject to manipulation and did not reflect the true color of the bullet and (b) to refute the claim that the bullet that killed the victim was fired from Parker's gun; (2) trial counsel failed to present evidence that there were bullets fired from Parker's gun that were not accounted for and that this evidence would have supported Parker's defense that the police recovered one of these unaccounted-for bullets and switched it with the silver bullet that the medical examiner removed from the victim;4 (3) trial counsel failed to effectively impeach the witness, Duncan, as there were inconsistencies between her testimony at trial and her prior sworn statement regarding the presence of Deputy McNesby at the time the fatal bullet was fired; and (4) trial counsel failed to competently investigate and present significant mitigation evidence of Parker's abusive childhood and serious mental illness. The trial court refused to grant an evidentiary hearing and summarily denied these claims. Parker contends the court erred in summarily denying these claims because he has made facially sufficient allegations that are not conclusively rebutted by the record which demonstrate ineffective assistance of counsel. Therefore, Parker argues, we should reverse the court's order and remand for an evidentiary hearing. We agree in part and remand for an evidentiary hearing on counsel's failure to present expert testimony pertaining to the fatal bullet and on counsel's failure to fully investigate and present mitigating evidence concerning Parker's abusive childhood and his alleged mental illness.
As a general proposition, a defendant is entitled to an evidentiary hearing on any well-pled allegations in a motion for postconviction relief unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient. See Maharaj v. State, 684 So.2d 726 (Fla.1996); Anderson v. State, 627 So.2d 1170 (Fla. 1993); Fla. R.Crim. P. 3.850. The defendant bears the burden of establishing a prima facie case based upon a...
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