Reese v. State

• Decision Date: 26 March 2009
• Docket Number: No. SC07-1309.,SC07-1309.
• Parties: John Loveman REESE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

14 So.3d 913

John Loveman REESE, Appellant, v. STATE of Florida, Appellee.

No. SC07-1309.

Supreme Court of Florida.

March 26, 2009.

Rehearing Denied July 2, 2009.

Frank J. Tassone, Jr., Jacksonville, FL, for Appellant.

Bill McCollum, Attorney General, Meredith Charbula, Assistant Attorney General, Tallahassee, FL, for Appellee.

PER CURIAM.

In this case, John Loveman Reese appeals a circuit court order denying, after evidentiary hearing, his postconviction motion to vacate his judgment of conviction of first-degree murder and sentence of death for the murder of Charlene Austin. See Fla. R.Crim. P. 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Having considered the issues raised in the briefs and having heard oral argument in this case, we affirm.

I. BACKGROUND

Reese was convicted of first-degree murder, sexual battery with great force, and burglary with assault. We previously summarized the facts of the 1992 murder as follows:

The evidence presented at trial reveals that Reese dated Jackie Grier on and off for seven years; the victim had been Grier's best friend for approximately two and a half years. Reese was extremely possessive and disliked Austin because of the amount of time Grier spent with her. Grier and Austin had begun making trips to Georgia where, unknown to Reese, both had met new boyfriends. They returned from the last of these trips on Monday, January 27, 1992. On Wednesday of the same week, Grier was concerned because she could not reach Austin by phone, and she and a neighbor went to Austin's house and entered through the unlocked back door. They found Austin lying face down in the bedroom, covered with a sheet. She had been strangled with an electrical extension cord that was doubled and wrapped around her neck twice with the ends pulled through the loop.

Reese was questioned by police after his palm print was found on Austin's waterbed. He confessed to breaking into her home around noon on Tuesday, January 28. He said he waited for her to return home because he wanted to talk to her about Grier, but when he saw Austin coming home from work around four o'clock he got scared and hid in a closet. Reese said that after Austin went to sleep on the sofa, he came out of the closet but panicked when she started to move. He grabbed her around the neck from behind and dragged her into the bedroom. He raped her, then strangled her with the extension cord. He was arrested after his confession.

Reese v. State, 694 So.2d 678, 680 (Fla. 1997). The jury recommended and the trial court imposed a death sentence. Id.

On appeal, we affirmed Reese's conviction. Id. at 685. Finding the trial court's sentencing order inadequate, however, we remanded for entry of an order that complied with Campbell v. State, 571 So.2d 415, 419-20 (Fla.1990). Reese, 694 So.2d at 684. In Reese v. State, 728 So.2d 727 (Fla.1999), we again remanded the sentencing order. Then, in Reese v. State, 768 So.2d 1057, 1060 (Fla.2000), cert. denied, 532 U.S. 910, 121 S.Ct. 1239, 149 L.Ed.2d 147 (2001), we reviewed the revised sentencing order and summarized the trial court's findings as follows:

The court found three aggravators: (1) the homicide was committed during a burglary and sexual battery; (2) the homicide was heinous, atrocious, or cruel (HAC); and (3) the homicide was committed in a cold, calculated, and premeditated manner (CCP). The court found no statutory mitigators. The court found seven nonstatutory mitigators: (1) good jail record (minimal weight); (2) positive character traits (minimal weight); (3) defendant's support of Jackie Grier and her children (very little weight); (4) his possessive relationship with Jackie Grier (minimal weight); (5) emotional immaturity (little weight); (6) possible use of drugs and alcohol around the time of the murder (little weight); and (7) lack of a significant criminal record (very slight weight). The court rejected the following nonstatutory mitigators: (1) defendant's adaptability to prison life; (2) childhood trauma other than the death of his mother; (3) emotional or mental impairment at the time of the murder; and (4) use of crack cocaine at the time of the murder.

Id. at 1058. We rejected Reese's claims that the trial court erred in evaluating the mitigating circumstances, finding the CCP aggravator, and determining that his death sentence was proportionate, and we affirmed the sentence of death. Id. at 1058-59.

Appellant subsequently filed an amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.851, raising numerous claims. The circuit court granted an evidentiary hearing on two claims of ineffective assistance of counsel, and the primary focus of the hearing was the adequacy of the presentation of mental health mitigation in the penalty phase. Following the hearing, the trial court entered orders denying relief on all of appellant's postconviction claims. Appellant then filed a timely appeal in this Court.

II. THE ISSUES ON APPEAL

In this appeal, appellant contends that (1) trial counsel was constitutionally ineffective for failing to adequately investigate and present mental health mitigation evidence; (2) the rules that prohibit jury interviews are unconstitutional; (3) lethal injection constitutes cruel and unusual punishment; (4) trial counsel was ineffective for failing to object to unconstitutional penalty-phase jury instructions; (5) cumulative error deprived appellant of a fair trial; (6) appellant's death sentence violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); and (7) appellant is ineligible for the death penalty under Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).¹

III. ANALYSIS

A. MENTAL HEALTH MITIGATION

In his first claim, appellant contends that trial counsel was ineffective for failing to present certain mental health mitigation evidence in the penalty phase. Appellant argues that counsel failed to present evidence that appellant was under the influence of an extreme mental or emotional disturbance at the time of the crime—a statutory mitigator. See § 921.141(6)(b), Fla. Stat. (1991). This claim rests largely on the assertion that counsel did not request that his mental health expert conduct neuropsychological testing—testing which would have shown that appellant had frontal lobe impairment.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court established a two-pronged standard for determining whether counsel provided legally ineffective assistance. A defendant must point to specific acts or omissions of counsel that are "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. 2052. The defendant also must establish prejudice by "show[ing] that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id.; see Gaskin v. State, 737 So.2d 509, 516 n. 14 (Fla.1999) ("Prejudice, in the context of penalty phase errors, is shown where, absent the errors, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different or the deficiencies substantially impair confidence in the outcome of the proceedings.").

First, to the extent that appellant argues that counsel did not present any evidence of appellant's mental or emotional distress at the time of the crime, the record plainly refutes the claim. Trial counsel had appellant examined by Dr. Harry Krop, who interviewed appellant and others, reviewed relevant records, including trial-related material, and conducted psychological testing. He testified at length during the penalty phase, outlining appellant's biography and explaining all the factors affecting his psychological profile. During his testimony, trial counsel asked him specifically to address appellant's mental and emotional state at the time of the murder. Although Dr. Krop stated that appellant knew right from wrong, Krop concluded that "when you look at all factors combined, that [have] accumulated, hurt, frustration feelings, he felt desperate to stay in the relationship, coupled with some fear and anxiety that were occurring at the time of the incident, plus the effects of cocaine and alcohol ... his mental state was seriously impaired at the time of the offense."²

Second, appellant has not demonstrated that counsel was ineffective in failing to request that Dr. Krop conduct neuropsychological testing. Appellant's trial counsel testified at the evidentiary hearing that he was not aware of any reason to request additional testing. Had such testing been recommended, counsel stated that he would have had the doctor conduct the tests. Dr. Krop had interviewed appellant and others, reviewed related records, and conducted psychological testing on appellant in preparation for the penalty phase. He testified at the evidentiary hearing that he did not conduct any neuropsychological testing at that time, finding such testing unwarranted. There was no indication of possible brain damage. Krop further testified, however, that in hindsight he should have conducted such tests. In connection with the postconviction proceedings, Krop did conduct neuropsychological testing of appellant. Krop testified at the evidentiary hearing that the results indicated appellant had frontal lobe impairment, which affects impulse control and problem solving.

As we previously explained in affirming denial of a nearly identical ineffective assistance claim, "[t]his Court has established that defense counsel is entitled to rely on the evaluations conducted by qualified mental health experts, even if, in retrospect, those...