Phillips v. State, 75598

• Decision Date: 24 September 1992
• Docket Number: No. 75598,75598
• Parties: 17 Fla. L. Week. S595 Harry Franklin PHILLIPS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 778

608 So.2d 778

17 Fla. L. Week. S595

Harry Franklin PHILLIPS, Appellant, v. STATE of Florida, Appellee.

No. 75598.

Supreme Court of Florida.

Sept. 24, 1992.

Rehearing Denied Dec. 24, 1992.

Larry Helm Spalding, Capital Collateral Representative (CCR), Jerrel E. Phillips, Asst. CCR, Office of Capital Collateral Representative, Tallahassee, and Billy H. Nolas and Julie D. Naylor, Sp. Asst. CCR, Ocala, for appellant.

Robert A. Butterworth, Atty. Gen. and Ralph Barreira, Asst. Atty. Gen., Miami, for appellee.

PER CURIAM.

Harry Franklin Phillips, a prisoner under sentence of death, appeals from the circuit court's denial of his petition under Florida Rule of Criminal Procedure 3.850. We have jurisdiction under article V, section 3(b)(1) of the Florida Constitution.

Phillips was convicted of the 1982 murder of Bjorn Svenson, a parole supervisor. The jury recommended a death sentence by a vote of seven to five, and the judge followed this recommendation. This Court affirmed the conviction and sentence on appeal. Phillips v. State, 476 So.2d 194 (Fla.1985). After his first death warrant was signed, Phillips filed a petition for habeas corpus, alleging a violation of his rights under Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). The petition was denied by this Court as procedurally barred. Phillips v. Dugger, 515 So.2d 227 (Fla.1987). Phillips then filed this 3.850 motion. An evidentiary hearing was held, and the circuit court denied relief on all claims.

We first address the claims Phillips raises alleging error in the guilt phase of his trial. Much of the State's evidence at trial consisted of the testimony of inmates who had been in a cell with Phillips. These inmates testified that Phillips admitted his guilt to them, and each supplied details of the crime as Phillips portrayed it to them--details which presumably only the killer would know.

Phillips contends that the State failed to disclose the nature or extent of the benefits offered to these inmates in exchange for their testimony, violating his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, before trial, Phillips was allowed to depose the prosecutor in this case, David Waksman. He also took the depositions of the inmates themselves and of the lead detective, Greg Smith. Through these depositions, Phillips learned that the inmates had been told that Waksman would write a letter informing the relevant authority--the parole board for those inmates who were serving prison sentences and the sentencing judge for those inmates who had not yet gone to trial--of their cooperation in the case. In addition, one inmate, Malcolm Watson, was promised that he would be given a polygraph test regarding his crime, and if he passed it his sentencing judge would be so informed. These promises were brought out on cross-examination of the inmates at trial.

Phillips now contends that the inmates were promised much more than was actually disclosed. In support of this claim, he introduced at the postconviction hearing documents showing that Waksman and Smith were involved in various activities in aid of the inmates after trial. For example, Waksman became involved in plea negotiations which ultimately resulted in a lenient sentence of five years' probation for Larry Hunter.

In rebutting this allegation, the State presented Waksman as a witness, who explained that he did in fact do more than simply write letters for some of the inmates. Because they had been such a help to the case and had gone through such pains to testify, including spending more time in jail while their own trials were postponed and being subjected to beatings and threats from other prisoners, Waksman decided to aid these inmates in whatever ways he could. However, he did not inform the inmates that he was going to do anything other than write letters, and in fact he himself had no idea to what extent he would end up helping them. ¹

Phillips also introduced check stubs showing that the inmates were in fact given reward money after trial. However, Smith and Waksman explained that this money was provided by the Florida Police Benevolent Association, a private organization, that they themselves were unaware of the reward until shortly before trial, and that they never told the inmates about the money until after they testified. Accordingly, although the inmates were ultimately given reward money by an outside organization, they were not aware of the possibility of a reward until after trial, and it therefore could not have provided any incentive for them to testify.

Finally, Phillips presented the testimony of William Farley, who stated that he lied on the stand at trial, that Phillips had never in fact confessed to him, that all the information about the crime was provided to him by the police, and that he perjured himself on the stand after being promised freedom and reward money. A similar claim was made as to the testimony of Larry Hunter. While Hunter himself refused to testify on grounds of self-incrimination, the parties stipulated to the consideration of his affidavit. Waksman and Smith denied these allegations. The circuit court found this evidence to be completely unbelievable, and we find competent, substantial evidence to support this finding. Accordingly, we reject Phillips' Brady claim.

Phillips next claims that various witnesses lied on the stand at trial and the State failed to correct the false testimony, in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). In order to prevail on this claim, Phillips must demonstrate: (1) the testimony was false; (2) the prosecutor knew the testimony was false; and (3) the statement was material. Routly v. State, 590 So.2d 397, 400 (Fla.1991).

Phillips first alleges that William Scott was a police informant at the time Phillips confessed to him, yet he stated on the witness stand that he was not a police agent. The fact that Scott had been a paid informant for the federal government and had aided one of the detectives in the Metro-Dade police department was well known to the defense through pretrial depositions of Scott and Detective Smith and was brought out on cross-examination at trial. Scott's statement that he was not a police agent is attributable to the ambiguity of the term "agent." Scott was on the federal government payroll at the time of trial and was assigned an informant number for the federal authorities; he did not, at that time, have an informant number for the Metro-Dade police, and therefore evidently did not believe that he was an agent for that department. Even at the postconviction hearing, Scott seemed confused over whether he was an informant for Metro-Dade. Ambiguous testimony does not constitute false testimony for the purposes of Giglio. Routly, 590 So.2d at 400.

Phillips also alleges that William Farley lied when he stated that the tape was started immediately when he gave his tape-recorded statement to the police; actually, a pre-interview was conducted which lasted approximately one and one-half hours. We find this misstatement to be immaterial. Further, the statement could have been corrected by the defense, had it been important, since the defense was aware of the pre-interview from Detective Smith's pretrial deposition.

Finally, Phillips contends that both Farley and Watson lied about their criminal records. While we agree that statements made by these witnesses regarding their records were incorrect, we find that there is no reasonable probability that the false testimony affected the judgment of the jury. The jury was made aware that these witnesses were convicted felons; the admission of an additional conviction or probationary sentence would have added virtually nothing to further undermine their credibility.

In a related claim, Phillips argues that the State used the jailhouse informants to elicit testimony from Phillips after he asserted his right to counsel, violating his rights under United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). This claim is without merit, as Phillips has made no showing that the informants were state agents when they talked with him, ² that they in any way attempted to elicit information about the crimes, or that the State had anything to do with placing these persons in a cell with Phillips in order to obtain information.

Phillips next argues that his trial counsel was ineffective at the guilt phase. In order to prevail on this claim, Phillips must demonstrate that counsel's performance was deficient and that there is a reasonable probability that the result of the proceeding would have been different absent the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Phillips bases his claim on several alleged actions which counsel failed to take. First, Phillips contends that counsel should have obtained a competency evaluation before trial. In support of this allegation Phillips...