Philmore v. State, SC04-1036.

• Decision Date: 15 June 2006
• Docket Number: No. SC05-250.,No. SC04-1036.,SC04-1036.,SC05-250.
• Citation: 937 So.2d 578
• Parties: Lenard James PHILMORE, Appellant, v. STATE of Florida, Appellee. Lenard James Philmore, Petitioner, v. James R. McDonough, etc., Respondent.
• Court: Florida Supreme Court

Page 578

937 So.2d 578

Lenard James PHILMORE, Appellant, v. STATE of Florida, Appellee.

Lenard James Philmore, Petitioner, v. James R. McDonough, etc., Respondent.

No. SC04-1036.

No. SC05-250.

Supreme Court of Florida.

June 15, 2006.

COPYRIGHT MATERIAL OMITTED

John W. Jennings, Capital Collateral Regional Counsel, James V. Viggiano, Jr. and Richard E. Kiley, Assistant CCR Counsel Middle Region, Tampa, 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.

PER CURIAM.

In 2002, this Court affirmed Lenard James Philmore's sentence of death. See Philmore v. State, 820 So.2d 919 (Fla. 2002). Philmore now appeals an order of the circuit court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.851 and petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained in this opinion, we affirm the trial court's order and deny the petition for a writ of habeas corpus.

FACTS AND PROCEDURAL HISTORY

Philmore was convicted of first-degree murder, conspiracy to commit robbery with a deadly weapon, carjacking with a deadly weapon, kidnapping, robbery with a deadly weapon, and third-degree grand theft based upon the events surrounding the 1997 abduction and murder of Kazue Perron. The facts of this case are fully set forth in this Court's opinion on direct appeal. See Philmore, 820 So.2d at 923-25. Briefly stated, on November 14, 1997, Philmore and codefendant Anthony Spann devised a plan to rob a bank to obtain money to travel to New York. See id. at 923. Spann told Philmore that to facilitate this robbery they would need to steal a getaway vehicle and kill the driver of the vehicle they stole. See id.

They ultimately spotted Perron driving a gold Lexus in a residential community, and the two followed her.

At approximately 1 p.m., Perron entered the driveway of a friend with whom she intended to run errands. Upon entering the driveway, Spann told Philmore to "get her." Philmore approached the driver's side of the vehicle and asked Perron if he could use her phone. Perron stated that she did not live there, and Philmore took out his gun and told Perron to "scoot over." Philmore drove Perron's car, with Spann following in his Subaru. . . .

....

Philmore and Spann passed a side road in an isolated area in western Martin County, and Spann flashed his lights, indicating that they turn around and head down the road. Philmore chose the place to stop. Philmore ordered Perron out of the vehicle and ordered her to walk towards high vegetation containing maiden cane, which is a tall brush.... Philmore then shot her once in the head. Philmore picked up Perron's body and disposed of it in the maiden cane. Spann did not assist in disposing of the body.

Id. at 924.

Philmore and Spann drove the two vehicles to Indiantown, where Philmore entered the bank and took approximately $1100 that a teller was counting. After robbing the bank, Philmore and Spann returned to the Lexus, which they had parked a short distance from the bank, and concealed the Subaru. See id. After a high-speed chase on Interstate 95, the two were apprehended hiding in an orange grove. See id. at 925.

From November 15 through November 26, Philmore gave several statements to the police in which he ultimately confessed that he robbed the bank and abducted and shot Perron. On November 21, Philmore led the police to Perron's body, which was found in the maiden cane. Philmore was charged in a six-count indictment, and the jury found Philmore guilty on all counts.

Id. (footnote omitted).

During the penalty phase, several witnesses who were the victims of previous crimes committed by Philmore testified for the State. Perron's husband, Jean Claude Perron, and Perron's friend, Chandra Bill, also testified, describing their relationships with Perron and discussing Perron's positive impact on the lives of others.

In mitigation, Philmore's family members testified that he was both the victim and witness of physical and mental abuse by his father, that he witnessed the murder of his niece when he was thirteen years old and subsequently started drinking, and that he suffered a number of injuries to his head. These witnesses also testified about Philmore's relationship with codefendant Spann. In an attempt to establish statutory mitigation factors, Philmore also presented the expert testimony of Dr. Frank Wood and Dr. Robert Berland. In rebuttal, the State presented the testimony of Dr. Gregory Landrum and Dr. Helen Mayberg.

The jury recommended the death penalty by a vote of twelve to zero. See Philmore, 820 So.2d at 925. After weighing the aggravating and mitigating circumstances, the trial court followed the jury's recommendation and sentenced Philmore to death.¹

Philmore raised eleven issues on direct appeal.² The Court denied without prejudice Philmore's claim that he received ineffective assistance of counsel related to his preindictment statements to law enforcement officers regarding Perron's abduction and murder. See id. at 928-29. The Court rejected all of Philmore's other arguments as either unpreserved or meritless and affirmed Philmore's convictions and sentence of death. See id. at 940.

Philmore filed a timely motion for postconviction relief under rule 3.851, in which he raised multiple claims. The circuit court held an evidentiary hearing at which Philmore presented testimony on his claims that trial counsel was ineffective during jury selection, during the penalty phase, and in conceding Philmore's guilt and that preindictment counsel provided ineffective assistance by allowing Philmore to give multiple statements to police.

Thomas Garland, Philmore's lead trial counsel, who conducted voir dire and was primarily responsible for the penalty phase, testified regarding his recollection of his actions during trial preparation and trial.³ Dr. Michael Maher, an expert in forensic psychiatry, examined Philmore before trial and participated in a pretrial deposition, but was never called to testify at trial. Dr. Maher testified at the hearing that had he been called at trial he would have testified that Philmore suffers from organic brain injury and that at the time of the murder Philmore was operating under extreme mental or emotional disturbance, and that his capacity to appreciate the criminality of his conduct was substantially impaired. John Hetherington, the assistant public defender who represented Philmore prior to his indictment on the kidnapping and murder charges, testified regarding his recollection of the events that led to Philmore's confession that he shot Perron. Lastly, Philmore's mother testified about her conversations with Hetherington during his representation of Philmore.

The trial court issued a comprehensive order denying relief, and Philmore appeals, raising four issues for this Court's review.⁴ Philmore also petitions for a writ of habeas corpus, raising six claims for relief.⁵

ANALYSIS

A. MOTION FOR POSTCONVICTION RELIEF

On appeal, Philmore asserts that the trial court erred in denying several of his claims of ineffective assistance of counsel. Because the trial court denied these claims after holding an evidentiary hearing, the Court defers to the trial court's factual findings to the extent that they are supported by competent, substantial evidence, but reviews de novo the application of the law to those facts. See Stephens v. State, 748 So.2d 1028, 1031-32 (Fla.1999).

To obtain relief on a claim of ineffective assistance of counsel Philmore 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. 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; Rutherford, 727 So.2d at 220.

Gore v. State, 846 So.2d 461, 467 (Fla.2003) (parallel citations omitted). "[W]hen a defendant fails to make a showing as to one prong, it is not necessary to delve into whether he has made a showing as to the other prong." Waterhouse v. State, 792 So.2d 1176, 1182 (Fla.2001). 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 each of Philmore's issues on appeal below.

1. Ineffective Assistance of Preindictment Counsel

In his motion, Philmore asserted that preindictment representation by attorney John Hetherington was ineffective assistance of counsel for several reasons: (1) Hetherington failed to investigate Philmore's case before advising Philmore to give incriminating statements to police; (2) Hetherington allowed Philmore to give incriminating statements to police after Hetherington knew Philmore would implicate himself in Perron's murder; (3) Hetherington was not present when Philmore gave statements to police; and (4) Hetherington failed to secure a plea agreement prior to allowing...