Raleigh v. State, SC03-2282.

• Decision Date: 01 June 2006
• Docket Number: No. SC03-710.,No. SC03-2282.,SC03-2282.,SC03-710.
• Citation: 932 So.2d 1054
• Parties: Bobby RALEIGH, Appellant, v. STATE of Florida, Appellee. Bobby Raleigh, Petitioner, v. James R. McDonough, etc., Respondent.
• Court: Florida Supreme Court

932 So.2d 1054

Bobby RALEIGH, Appellant, v. STATE of Florida, Appellee.

Bobby Raleigh, Petitioner, v. James R. McDonough, etc., Respondent.

No. SC03-2282.

No. SC03-710.

Supreme Court of Florida.

June 1, 2006.

COPYRIGHT MATERIAL OMITTED

Ryan Thomas Truskoski, P.A., Orlando, FL, for Appellant/Petitioner.

Charles J. Crist, Jr., Attorney General, Tallahassee, Florida and Kenneth S. Nunnelley, Sr., Assistant Attorney General, Daytona Beach, FL, for Appellee/Respondent.

PER CURIAM.

Bobby Raleigh pled guilty to two counts of first-degree murder and was subsequently sentenced to death. We affirmed his sentences on direct appeal. Raleigh v. State, 705 So.2d 1324 (Fla.1997), cert. denied, 525 U.S. 841, 119 S.Ct. 105, 142 L.Ed.2d 84 (1998). Raleigh now appeals an order of the circuit court denying his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.851. He also 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 below, we affirm the circuit court's order and deny the habeas petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of June 5, 1994, while at the Club Europe in DeLand, Domingo Figueroa told his cousin, Bobby Raleigh, that someone had slapped his mother, Janice Figueroa.¹ Raleigh and Figueroa confronted Douglas Cox and his brother. While they were talking in the parking lot, Raleigh's mother ran out of the bar screaming at Cox. Raleigh took his mother to the car and returned to confront Cox. Raleigh apologized to Cox for his mother's actions and they shook hands. After confronting Cox, Raleigh obtained guns from his home, and he and Figueroa drove to Cox's trailer.

Raleigh went to the door of the trailer with a gun in his hand and asked about Cox. He was told that Cox was asleep. Raleigh and Figueroa left Cox's trailer, drove down a nearby dirt road, and parked. They returned and entered Cox's trailer carrying guns. Raleigh went to the end of the trailer and shot Cox in the head three times at close range. Figueroa and Raleigh each shot Cox's roommate, Tim Eberlin, until their guns jammed. Raleigh then beat Eberlin in the head with the barrel of his gun until Eberlin stopped screaming.

Raleigh and Figueroa next drove to Raleigh's home where they burned their clothes and dumped bullets into a neighbor's yard. They later hid the guns in a secret compartment in Raleigh's Subaru. The police went to Raleigh's house that night, and he agreed to talk to them. Raleigh initially denied his involvement in the murders, but after being told that Figueroa had implicated him, he made a second statement, which was taped. In this second statement, Raleigh admitted killing both Cox and Eberlin.

Raleigh was charged with two counts of first-degree murder, one count of burglary, and one count of shooting into a building. He entered into a plea agreement with the State in which he agreed to plead guilty to both counts of murder and, in exchange, the State agreed to nolle prosequi the counts of burglary and shooting into a building. The court accepted Raleigh's plea pursuant to this agreement on June 6, 1995. Figueroa was tried and sentenced separately.

Raleigh's penalty phase proceeding was conducted in August 1995. Figueroa was not called to testify. Instead, a prior taped statement Figueroa had given to police investigator Lawrence Horzepa on the day of the murders was introduced through Horzepa. Initially, through a series of leading questions during cross-examination, Raleigh's counsel asked Horzepa to confirm specific portions of Figueroa's statement. Specifically, defense counsel asked Horzepa to confirm that Figueroa had told him that his "Aunt Janice" (Raleigh's mother) had been called a bad name by the victim, Cox, and to confirm that Figueroa admitted to owning the safe that contained the guns. On its redirect examination of Horzepa, the State sought to introduce Figueroa's entire statement by playing the tape. Defense counsel stated that the defense had no objection. When the tape was played, the jury heard Figueroa say that he shot Eberlin once at Raleigh's direction, but Figueroa was not sure if his shot hit Eberlin. The jury also heard Figueroa say that Raleigh had already shot Eberlin once.

Raleigh testified on his own behalf at the penalty phase. In addition to eight other witnesses, defense counsel called psychologist Dr. James Upson as its mental health expert. Dr. Upson testified that he met with Raleigh for approximately eleven and a half hours, interviewed Raleigh's mother for approximately one hour, reviewed Raleigh's school and medical records, and conducted twenty tests. Dr. Upson found Raleigh to be of normal intelligence with an IQ of ninety-eight. He further testified that Raleigh is a follower who is easily manipulated by others and that Raleigh portrayed some allegiance to Figueroa. Dr. Upson testified that Raleigh fit the criteria for antisocial personality, although Dr. Upson would not clinically diagnose Raleigh with a personality disorder. Dr. Upson further testified that Raleigh's neuropsychological functions may have been impaired by the consumption of alcohol at the time of the murders, but there was no significant impairment. Ultimately, Dr. Upson concluded that he could not find any statutory mitigators to apply in Raleigh's case except Raleigh's age at the time of the murders (nineteen).

At the end of the penalty phase, the jury unanimously recommended the death penalty for Raleigh on both counts of first-degree murder. However, before Raleigh was sentenced, he learned that Figueroa had made another statement about his involvement in the crime. The day following the murder, Figueroa told his uncle that he had killed one victim and Raleigh killed the other. The State had introduced this statement at Figueroa's trial; and, during closing argument, the State had argued that this statement demonstrated that Figueroa had formed the intent to kill Eberlin, regardless of whether Figueroa was the one who actually killed Eberlin. The State argued that this statement, coupled with the forensic evidence that two of the three shots which hit Eberlin may have been fired from Figueroa's gun, demonstrated that Figueroa had downplayed his role in the murders when he gave the statement to investigator Horzepa.

On February 16, 1996, Raleigh was sentenced to death upon the trial court's finding that the five statutory aggravators² outweighed the one statutory and several nonstatutory mitigators.³ On direct appeal, Raleigh raised fourteen claims.⁴ After denying each claim, this Court affirmed Raleigh's death sentence. Raleigh, 705 So.2d at 1331. Raleigh then filed an amended 3.851 motion for postconviction relief, in which he raised fourteen claims. On August 2, 2001, the trial court held a Huff⁵ hearing and ordered an evidentiary hearing on seven of Raleigh's claims.⁶

At the evidentiary hearing, Raleigh presented the testimony of a second mental health expert, Dr. Ernest Bordini. Dr. Bordini diagnosed Raleigh as suffering from a nondescript neuropsychological dysfunction. Dr. Bordini further testified that several statutory mitigators applied, including that Raleigh was acting under the dominion and control of Figueroa. The trial court denied relief. Raleigh now appeals the trial court's denial as it relates to five of his claims.⁷ He also petitions this Court for a writ of habeas corpus.

II. RULE 3.851 MOTION FOR POSTCONVICTION RELIEF

As to Raleigh's appeal of the denial of his motion for postconviction relief, we first address his claim that his mental health evaluation was inadequate under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). We then address three claims alleging ineffective assistance of counsel. Those claims are that counsel provided ineffective assistance by (1) failing to adequately prepare the mental health expert's testimony; (2) failing to object to the admission of Figueroa's taped statement; and (3) counseling Raleigh to plead guilty to two counts of first-degree murder. We then consider the claim that the State knowingly presented false testimonial evidence in violation of Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Lastly, we address the assertion that the State violated Raleigh's right to due process under Bradshaw v. Stumpf, 545 U.S. 175, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005), by taking inconsistent positions in Raleigh's and Figueroa's trials regarding the identity of the principal actor in the murder of Eberlin. For the reasons stated below, we affirm the trial court's denial of these claims.

A. Ake Claim

Raleigh contends that he did not receive adequate mental health assistance as required by Ake. "Ake requires that a defendant have access to a `competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.'" Mann v. State, 770 So.2d 1158, 1164 (Fla. 2000) (quoting Ake, 470 U.S. at 83, 105 S.Ct. 1087). Because an Ake-type claim rests on a denial of a defendant's right to due process and equal protection under the Fourteenth Amendment, 470 U.S. at 76, 105 S.Ct. 1087, it generally is procedurally barred on postconviction review because it should have been presented on direct appeal. See Marshall v. State, 854 So.2d 1235, 1248 (Fla.2003); Moore v. State, 820 So.2d 199, 203 n. 4 (Fla.2002); Cherry v. State, 781 So.2d 1040, 1047 (Fla. 2000). A narrow exception to this general procedural bar was carved out by this Court in State v. Sireci, 502 So.2d 1221, 1223 (Fla.1987).

In Sireci, this Court affirmed the trial court's finding that a limited postconviction evidentiary hearing was necessary to address the defendant's claim that he "was deprived of his rights to due process and equal protection" because, based upon the findings of a third psychiatrist, there was evidence that Sireci's two court...