Phillips v. State

Decision Date14 October 2004
Docket Number No. SC01-1460., No. SC00-2248
Citation894 So.2d 28
PartiesHarry Franklin PHILLIPS, Appellant, v. STATE of Florida, Appellee. Harry Franklin Phillips, Petitioner, v. James V. Crosby, Jr., etc., et al., Respondents.
CourtFlorida Supreme Court

William M. Hennis, III, Assistant CCRC and Leor Veleanu, Staff Attorney, Law Office of the Capital Collateral Regional Counsel, Ft. Lauderdale, FL, for Appellant/Petitioner.

Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appellee/Respondent.

PER CURIAM.

Harry Franklin Phillips, an inmate under the sentence of death, appeals an order of the circuit court denying his amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 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 that follow, we affirm the denial of Phillips's postconviction motion and deny the petition for habeas corpus.

I. PROCEEDINGS TO DATE

We have explained the facts of the case in a previous opinion:

In the evening of August 31, 1982, witnesses heard several rounds of gunfire in the vicinity of the Parole and Probation building in Miami. An investigation revealed the body of Bjorn Thomas Svenson, a parole supervisor, in the parole building parking lot. Svenson was the victim of multiple gunshot wounds. There apparently were no eyewitnesses to the homicide.

As parole supervisor, the victim had responsibility over several probation officers in charge of appellant's parole. The record indicates that for approximately two years prior to the murder, the victim and appellant had repeated encounters regarding appellant's unauthorized contact with a probation officer. On each occasion, the victim advised appellant to stay away from his employees and the parole building unless making an authorized visit. After one incident, based on testimony of the victim and two of his probation officers, appellant's parole was revoked and he was returned to prison for approximately twenty months.

On August 24, 1982, several rounds of gunfire were shot through the front window of a home occupied by the two probation officers who had testified against appellant. Neither was injured in the incident, for which appellant was subsequently charged.

Following the victim's murder, appellant was incarcerated for parole violations. Testimony of several inmates indicated that appellant told them he had killed a parole officer. Appellant was thereafter indicted for first-degree murder.

Phillips v. State, 476 So.2d 194, 195-96 (Fla.1985).

In 1983, Phillips was convicted of one count of first-degree murder in the death of a parole supervisor named Bjorn Svenson and sentenced to death. On direct appeal, we affirmed that sentence. See Phillips, 476 So.2d at 194.1

On November 4, 1987, Phillips filed a petition for writ of habeas corpus in this Court raising one claim: that comments by the court and prosecutor throughout the course of the proceedings resulting in Phillips's sentence of death diminished the jurors' sense of responsibility for the capital sentencing task that they were to perform, and had an effect on the jury, in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), and the Eighth and Fourteenth Amendments. We denied the petition, finding the claim procedurally barred. See Phillips v. Dugger, 515 So.2d 227, 228 (Fla.1987).

The same day that Phillips filed his petition for writ of habeas corpus, he also filed in the trial court a motion for postconviction relief raising ten claims.2 After an evidentiary hearing, the trial court denied the motion. On appeal, we found that Phillips had received ineffective assistance of counsel at the penalty phase of the trial and vacated his death sentence and remanded for a new sentencing proceeding. See Phillips v. State, 608 So.2d 778, 783 (Fla.1992).

In April 1994, a new jury, by a vote of seven to five, again recommended a sentence of death. The trial court followed the jury's recommendation and found the following four aggravators: (1) the defendant was under a sentence of imprisonment at the time of the murder; (2) the defendant had prior convictions for violent felonies; (3) the murder was committed to disrupt or hinder the lawful exercise of a governmental function or the enforcement of laws; and (4) the murder was committed in a cold, calculated, and premeditated fashion. The trial court did not find any statutory mitigators, but it found that the following nonstatutory mitigators applied: (1) Phillips's low intelligence (given little weight); (2) Phillips's poor family background (given little weight); and (3) his abusive childhood, including lack of proper guidance by his father (given little weight). Phillips again appealed his sentence, raising six issues.3 We affirmed the sentence. See Phillips v. State, 705 So.2d 1320 (Fla.1997).

On September 13, 1999, Phillips filed a motion for postconviction relief. He subsequently filed an amended motion for postconviction relief raising twenty-four claims on December 2, 1999.4 The trial court held a hearing pursuant to Huff v. State, 622 So.2d 982 (Fla.1993), and thereafter summarily denied Phillips's amended motion.

Phillips now appeals the trial court's denial of his postconviction motion and petitions for a writ of habeas corpus, raising four claims of ineffective assistance of appellate counsel. For the reasons explained below, we affirm the denial of postconviction relief and deny the petition for habeas corpus. In light of the United States Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), however, and our recent adoption of a rule implementing that decision, see Amendments to Florida Rules of Criminal Procedure & Florida Rules of Appellate Procedure, 875 So.2d 563 (Fla.2004), we deny relief without prejudice to Phillips seeking relief under that rule. We express no opinion about the merits of such a motion.

II. 3.850 APPEAL

Phillips raises eleven claims: (1) the trial court improperly denied his postconviction claims without an evidentiary hearing;5 (2) resentencing counsel was ineffective for failing to argue that section 921.137, Florida Statutes (2001), prohibiting the imposition of the death sentence on mentally retarded defendants, applied to him; (3) his right to due process was violated when the trial judge denied his claim regarding public records disclosure and his motion to disqualify the trial judge; (4) the following sub-claims concerning the jury were improperly denied as procedurally barred and meritless: (a) failure of resentencing counsel to use all of his peremptory challenges; (b) the trial court's jury instructions diminished the jury's sense of responsibility; (c) the prosecutor's remarks during opening and closing arguments in voir dire; (d) trial court's jury instructions regarding voting procedures; (e) the trial court's jury instructions concerning premeditation and the CCP aggravator; (f) jury instructions regarding feelings of prejudice, bias, and sympathy; and (g) not having the opportunity to interview the jurors; (5) the trial court and the prosecutor improperly shifted the burden of proof to the defendant to establish that mitigating circumstances outweighed the aggravating circumstances; (6) the following prosecutorial comments concerning nonstatutory aggravating circumstances were improper: (a) comparing Phillips to his siblings; (b) Phillips's future dangerousness; and (c) the State's use of a door-sized prop that charted Phillips's behavior during parole; (7) the trial court erred in summarily denying his claim that he is innocent of the death penalty; (8) Phillips cannot be put to death due to insanity; (9) the trial court improperly relied upon Phillips's two prior felony convictions during his resentencing in violation of Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988); (10) Phillips's absence from unrecorded bench conferences violated his right to be present at trial; and (11) cumulative error.

The bulk of Phillips's claims on appeal are procedurally barred or without merit.6 We address only certain claims that are not procedurally barred.

A.

In claim 4(a), Phillips contends that his resentencing counsel rendered ineffective assistance when he failed to exercise his two remaining peremptory challenges. This Court has repeatedly held that in order to establish a claim of ineffective assistance of counsel a defendant must prove two elements:

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.

Valle v. State, 778 So.2d 960, 965 (Fla.2001) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In Valle, this Court explained further:

In evaluating whether an attorney's conduct is deficient, "there `is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,'" and the defendant "bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." This Court has held that defense counsel's strategic choices do not constitute deficient conduct if alternative courses
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