Riechmann v. State

• Citation: 966 So.2d 298
• Decision Date: 12 April 2007
• Docket Number: No. SC03-760.,SC03-760.
• Parties: Dieter RIECHMANN, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

966 So.2d 298

Dieter RIECHMANN, Appellant, v. STATE of Florida, Appellee.

No. SC03-760.

Supreme Court of Florida.

April 12, 2007.

As Revised on Denial of Rehearing September 20, 2007.

Terri L. Backhus and Martin J. McClain of Backhus and Izakowitz, P.A., Tampa, FL, for Appellant.

Bill McCollum, Attorney General, Tallahassee, FL, and Sandra S. Jaggard, Assistant Attorney General, Miami, FL, for Appellee.

Michael Tarre, Miami, FL, on behalf of the Federal Republic of Germany, as Amicus Curiae.

PER CURIAM.

This case is before the Court on appeal from an order denying a motion to vacate a judgment of conviction of first-degree murder and a sentence of death under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we affirm the trial court's denial of Riechmann's postconviction motion.

FACTUAL AND PROCEDURAL HISTORY

The facts in this case are set forth in Riechmann's direct appeal in Riechmann v. State, 581 So.2d 133 (Fla.1991) (Riechmann I), and in the subsequent appeal on his first rule 3.850 postconviction motion in State v. Riechmann, 777 So.2d 342 (Fla. 2000) (Riechmann II):

Briefly stated, the evidence established that Riechmann and Kersten Kischnick, "life companions," came to Miami, Florida from Germany in early October 1987, and Kischnick was shot to death as she sat in the passenger seat of an automobile driven by Riechmann. Riechmann was charged with her murder. At trial, the State's theory was that Kischnick was a prostitute who worked for Riechmann, and when she no longer wanted to work as a prostitute, Riechmann killed her in order to recover insurance proceeds.

Riechmann maintained that they were riding around videotaping some of Miami's sights when they got lost and asked for directions. He contended that the stranger whom they asked fired the shot that killed Kischnick. Riechmann sped away looking for help, driving several miles before he found a police officer.

At trial, an expert for the State testified that numerous particles usually found in gunpowder residue were discovered on Riechmann's hand and, accordingly, there was a reasonable scientific probability that Riechmann had fired a gun. In Riechmann's hotel room, the police found three handguns and several rounds of ammunition, and an expert firearms examiner testified that the bullets were the same type as used to kill Kischnick. The examiner testified that the bullet that killed Kischnick could have been fired from any of the three makes of guns found in Riechmann's room. A serologist testified that the high-velocity blood spatter found on the driver's seat could not have gotten there if the driver's seat was occupied in a normal driving position when the shot was fired from outside the passenger-side window. Riechmann was convicted of first-degree murder.

Riechmann II, 777 So.2d at 347. At the penalty phase, Riechmann's attorney presented no mitigating evidence, and subsequently, the jury recommended the death penalty by a vote of nine to three. Id. The trial judge sentenced Riechmann to death, finding two aggravating factors: (1) the murder was committed for pecuniary gain, and (2) the murder was committed in a cold, calculated, and premeditated manner. Id. at 347 n. 1. Although Riechmann presented no mitigation, the trial judge "found as a nonstatutory mitigating circumstance that people in Germany who know Riechmann told police they consider him to be a `good person.'" Riechmann I, 581 So.2d at 137. On appeal, this Court affirmed Riechmann's conviction and sentence, id. at 141, and the United States Supreme Court denied Riechmann's petition for writ of certiorari. Riechmann v. Florida, 506 U.S. 952, 113 S.Ct. 405, 121 L.Ed.2d 331 (1992).¹

On September 30, 1994, Riechmann filed his initial rule 3.850 motion for postconviction relief.² After an evidentiary hearing the trial judge vacated Riechmann's sentence and ordered a new sentencing proceeding, concluding that Riechmann received ineffective assistance of counsel at the penalty phase and that the sentencing order had been improperly written by the prosecutor instead of the judge. Id. at 348. The judge denied the remainder of the claims. Id. This Court affirmed the trial court's order in its entirety, and remanded for a new sentencing proceeding before a new trial judge and jury. Id. at 366.³ This Court also denied Riechmann's petition for writ of habeas corpus. Id. at 364.⁴

While the appeal on the first rule 3.850 motion was pending, Riechmann filed a second postconviction motion in the circuit court. This successive 3.850 motion, the subject of the current appeal,⁵ raised the following claims (paraphrased): (1) newly discovered evidence involving an alleged confession from Mark Dugen; (2) the State deliberately withheld material exculpatory evidence and knowingly used false evidence regarding State witness Walter Smykowski; (3) the conduct of law enforcement officers in this case was so outrageous that it deprived Riechmann of due process; (4) Riechmann is entitled to DNA testing of the presumptive blood evidence; (5) Riechmann was denied his rights to due process and equal protection because access to the files and records pertaining to Riechmann's case had been withheld by certain state agencies; and (6) the cumulative effect of newly discovered evidence warrants a new trial.

After a Huff⁶ hearing on October 19, 2001, the trial court granted an evidentiary hearing on the claims concerning the alleged confession of Mark Dugen and the State's conduct involving Walter Smykowski. After numerous delays, the evidentiary hearing was held; subsequently, counsel for each side submitted a written closing memorandum.⁷ The trial court thereafter concluded that Riechmann did not exercise due diligence in pursuing his successive motion and amended claims on the merits, and the motion was therefore time-barred; further, the court held that even if the motion were not time-barred, Riechmann's claims were without merit and he was not entitled to relief. Riechmann now asserts five claims of trial court error on appeal.⁸

OFFICER VESKI'S TESTIMONY

Riechmann's first claim is that the lower court erred in refusing to allow Officer Hilliard Veski's proffered testimony at the evidentiary hearing below. This testimony concerns his inventory notes reflecting his recovery of a flashlight and a blanket from Riechmann's car and his recollection of the State's pressuring him to testify at trial in a certain fashion. At the evidentiary hearing, the State objected to Veski testifying for the defense, asserting his testimony was irrelevant to the two claims on which an evidentiary hearing had been granted. Riechmann's counsel responded that the court must consider Veski's testimony cumulatively with the claim involving Smykowski. The court sustained the State's objection and did not permit Veski to testify.⁹ We find no error in the trial court's ruling refusing to allow Veski's proffered testimony.

Riechmann now argues that Veski's testimony should be considered as part of his argument that the State's "outrageous conduct" in this case violated both Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and that furthermore, the trial court erred in failing to grant an evidentiary hearing on this claim. He asserts alternatively that Veski's testimony could have served as an impeachment of the prosecutor who testified on the Smykowski claim at the evidentiary hearing. As noted, the lower court did not grant an evidentiary hearing on Riechmann's claim of outrageous law enforcement conduct, and Riechmann did not advance the "impeachment" argument at the hearing.

We find no error in the trial court's denial of an evidentiary hearing on the "outrageous conduct" claim and possible Brady and Giglio violations, and we agree with the State's assertion that the claim was procedurally barred for not having been properly asserted earlier in the case. The movant in a rule 3.850 motion filed in a capital case is entitled to an evidentiary hearing unless "(1) the motion, files, and records in the case conclusively show that the [movant] is entitled to no relief, or (2) the motion or a particular claim is legally insufficient." Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000); see also Fla. R.Crim. P. 3.850(d). However, when a claim is raised in a successive motion, the movant has the additional burden of demonstrating why the claim was not raised before. See Owen v. Crosby, 854 So.2d 182, 187 (Fla.2003) ("A second or successive motion for postconviction relief can be denied on the ground that it is an abuse of process if there is no reason for failing to raise the issues in the previous motion."). Because a court's decision whether to grant an evidentiary hearing on a rule 3.850 motion filed in a capital case is ultimately based on written materials before the court, its ruling is tantamount to a pure question of law, subject to de novo review. See State v. Coney, 845 So.2d 120, 137 (Fla.2003).

The State asserts that Riechmann failed to demonstrate why this "outrageous conduct" claim in relation to Veski's testimony had not been asserted in the prior 3.850 motion, citing transcripts from the trial and the first postconviction proceedings demonstrating that Riechmann's trial counsel knew early on, even before trial, about Veski's role in securing the blanket and flashlight from Riechmann's car as well as Veski's claim of being pressured by the State.

The State is correct that this current claim is procedurally barred and was properly summarily denied by the trial court. The record reflects that Veski performed an inventory of the car in which the murder occurred. Veski initially stated at a pretrial deposition that he found a flashlight with bloodstains on it in the trunk of the car during his inventory search. After this...