Peterka v. State

• Decision Date: 30 September 2004
• Docket Number: No. SC02-1410, No. SC03-482.
• Citation: 890 So.2d 219
• Parties: Daniel PETERKA, Appellant, v. STATE of Florida, Appellee. Daniel Peterka, Petitioner, v. James V. Crosby, Jr., etc., Respondent.
• Court: Florida Supreme Court

890 So.2d 219

Daniel PETERKA, Appellant, v. STATE of Florida, Appellee.

Daniel Peterka, Petitioner, v. James V. Crosby, Jr., etc., Respondent.

Nos. SC02-1410, SC03-482.

Supreme Court of Florida.

September 30, 2004.

Rehearing Denied December 22, 2004.

Linda McDermott, Assistant Capital Collateral Counsel, Northern Region, Tallahassee, FL, for Appellant/Petitioner.

Charles J. Crist, Jr., Attorney General and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, FL, for Appellee/Respondent.

PER CURIAM.

Daniel Peterka was sentenced to death for the 1989 murder of his roommate, John Russell. This Court affirmed Peterka's first-degree premeditated murder conviction and death sentence. See Peterka v. State, 640 So.2d 59, 62 (Fla.1994)

. Peterka now appeals a trial court order denying postconviction relief following an evidentiary hearing and further petitions this Court for a writ of habeas corpus.¹ For the reasons that follow, we affirm the trial court's order denying Peterka postconviction relief and deny Peterka's habeas petition.

FACTS AND PROCEDURAL HISTORY

The facts of this case are fully set forth in this Court's opinion on direct appeal. See Peterka, 640 So.2d at 62-65

. Briefly stated, Peterka fled Nebraska in February 1989 after being sentenced to a one-year prison term for theft. He reappeared in Niceville, Florida, and sometime in April 1989, he moved into a rental duplex with Russell because Russell was having difficulty paying the rent. On June 27, 1989, Peterka obtained a duplicate driver's license with his picture and Russell's name. Peterka then cashed a $300 money order that was payable to Russell and had been mailed to Russell by a relative. Russell suspected that Peterka had stolen the money order but told several people that he was not going to confront Peterka, who kept a gun at the house.

Russell was reported missing by his friend and co-worker, Gary Johnson, on July 13, 1989. Sheriff's Deputy Daniel Harkins questioned Peterka about Russell's whereabouts, and subsequently ran Peterka's name and birth date in the sheriff's office's computer, which indicated that Peterka was a fugitive from Nebraska with an outstanding warrant. Peterka was arrested early the next morning.

On July 18, 1989, Peterka gave a statement to police in which he admitted shooting Russell. This Court summarized Peterka's statement as follows:

Peterka forged Russell's signature and cashed the money order. He paid Russell one hundred dollars to use Russell's identification. Russell instigated a shoving match over the money order that escalated into a fight in the living room of the duplex. Both men reached for Peterka's gun, but Peterka got it first. As Russell got up from the couch, the weapon accidentally fired and the bullet entered the top of Russell's head. Russell fell down on the couch. Peterka wrapped Russell's body in a rug, drove to a remote part of Eglin Air Force Base, and buried the body in a shallow grave.

Id. at 64. Peterka subsequently led police to Russell's body and gave a videotaped statement similar to the statement he had given earlier. This videotaped statement was introduced into evidence at trial.

The medical examiner testified that Russell died from a close-range gunshot wound to the head and that the wound was consistent with Russell having been shot from behind while in a reclining position. A firearms expert testified that in his opinion Peterka's gun would not accidentally fire and that the gun had two safety mechanisms that would prevent it from firing unless the trigger was pulled.

The jury found Peterka guilty of first-degree premeditated murder. During the penalty phase, Peterka presented the testimony of friends and family members to establish mitigation. Collectively they testified that Peterka is a good brother and son, is caring and understanding, is an excellent, responsible employee, and is always helpful. Peterka also testified on his own behalf, stating that he feels he has something to share with society and that if he could bring Russell back he would be glad to give his life. At the conclusion of the penalty phase, the jury recommended the death penalty by a vote of eight to four. After weighing the aggravating and mitigating circumstances, the trial court followed the jury's recommendation and sentenced Peterka to death.²

Peterka raised twelve issues on appeal. See id.³ We concluded that the trial court erred by (1) allowing the State to present evidence of Peterka's juvenile record during the penalty phase, (2) failing to merge the hinder law enforcement aggravator with the avoid arrest aggravator, and (3) finding the pecuniary gain aggravator. See id. at 70-71. However, we further concluded that these errors were harmless and affirmed Peterka's conviction and sentence. See id. at 72-73.

Peterka filed a motion for postconviction relief under Florida Rules of Criminal Procedure 3.850 and 3.851, in which he raised numerous claims.⁴ Following a Huff⁵ hearing, the circuit court held an evidentiary hearing on many of these claims. During the hearing, Peterka presented the testimony of his mother, father, sister, and brother regarding his military service, relationships with family, and history of good deeds and nonviolent behavior. Peterka testified as to his good behavior in jail, including his refusal to participate in an escape planned by his cellmates. Allen Atkins, a Lieutenant with the Okaloosa County Jail, testified regarding Peterka's good behavior. Peterka also presented the testimony of Dr. Joseph Cohen, an expert in the field of forensic pathology, who reviewed the physical evidence in the case and disagreed with the medical examiner's conclusions about the trajectory of the bullet through Russell's skull.

In rebuttal, the State presented the testimony of Peterka's trial counsel, Assistant Public Defenders Earl D. Loveless and Mark V. Harlee, investigator James W. Graham, and Dr. Edward Berkland, the Medical Examiner for the First Judicial Circuit. Because Peterka's file was destroyed in a flood, Loveless, Harlee, and Graham were unable to review their notes on Peterka's case and testified based solely on their independent recollections of what occurred at trial twelve years earlier.

The trial court issued an order denying relief and Peterka appeals, raising six issues, which include numerous subissues, for this Court's review.⁶ Peterka also petitions for a writ of habeas corpus, raising eight claims for relief.⁷

POSTCONVICTION APPEAL

I. Ineffective Assistance of Counsel

In his first four issues on appeal, Peterka asserts that the trial court erred in denying his numerous claims of ineffective assistance of counsel (A) during the guilt phase generally, on a number of grounds, (B) during the guilt phase for failing to advise Peterka of his right to testify, (C) during the penalty phase, and (D) during voir dire. In order to be entitled to relief on a claim of ineffective assistance of counsel, Peterka must establish

deficient performance and prejudice, as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Rutherford v. State, 727 So.2d 216, 218 (Fla.1998)

. As to the first prong, deficient performance, a defendant must establish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards. See Strickland, 466 U.S. at 688,

104 S.Ct. 2052. Second, as to the prejudice prong, the deficient performance must be shown to have so affected the fairness and reliability of the proceedings that confidence in the outcome is undermined. See id. at 694, 104 S.Ct. 2052; Rutherford, 727 So.2d at 220.

Gore v. State, 846 So.2d 461, 467 (Fla.2003).

Both the performance and prejudice prongs of Strickland are mixed questions of law and fact, and the Court will give deference to the trial court's findings of fact that are supported by competent, substantial evidence. See Stephens v. State, 748 So.2d 1028, 1033-34 (Fla.1999)

. Further, as the United States Supreme Court explained in Strickland,

[j]udicial scrutiny of counsel's performance must be highly deferential.... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.

466 U.S. at 689, 104 S.Ct. 2052. We address Peterka's first four issues, raising ineffective assistance of trial counsel claims, separately below.

A. Guilt Phase

Peterka first asserts that the trial court erred in denying eight claims of ineffective assistance of counsel during the guilt phase. Specifically, Peterka argues that trial counsel were ineffective for (a) failing to present a coherent theory of defense, (b) conceding Peterka's guilt of first-degree premeditated murder, (c) failing to present expert testimony about the physical evidence, (d) failing to investigate and present evidence of the full extent of Russell's poor financial situation, (e) failing to undermine the State's hearsay evidence that Russell was not going to confront Peterka about the stolen money order, (f) failing to prevent suppressed evidence from reaching the jury, (g) failing to present an adequate closing argument, and (h) failing to object to improper prosecutorial argument. We conclude that trial counsel were not ineffective for any of the aforementioned reasons and therefore affirm the trial court's denial of relief.

Peterka's first claim is that trial counsel failed to present a coherent theory of defense. We conclude that in light of Peterka's statement to police, trial counsel presented a viable, coherent defense strategy of either self-defense or...