Rolling v. State, SC01-625.

• Decision Date: 27 June 2002
• Docket Number: No. SC01-625.,SC01-625.
• Parties: Danny Harold ROLLING, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

825 So.2d 293

Danny Harold ROLLING, Appellant, v. STATE of Florida, Appellee.

No. SC01-625.

Supreme Court of Florida.

June 27, 2002.

Rehearing Denied August 23, 2002.

Baya Harrison, III, Monticello, FL, for Appellant.

Robert A. Butterworth, Attorney General, and Carolyn M. Snurkowski, Assistant Attorney General, Tallahassee, FL, for Appellee.

PER CURIAM.

Danny Harold Rolling, a prisoner under sentence of death, appeals the trial court's denial of his motion for postconviction relief pursuant to 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 order denying Rolling postconviction relief.

BACKGROUND

Rolling was charged with five counts of first-degree murder, three counts of sexual battery, and three counts of armed burglary of a dwelling with a battery, which occurred in Gainesville during August of 1990. This Court previously summarized the facts surrounding these crimes on direct appeal. See Rolling v. State, 695 So.2d 278, 281-82 (Fla.1997)

.

On June 9, 1992, Rolling entered a plea of not guilty on all counts. Subsequently, on February 15, 1994, the day set for trial, Rolling changed his plea to guilty on all counts. The trial court accepted Rolling's plea after reviewing with him the factual basis for it and adjudicated him guilty on all counts. A penalty phase proceeding was held, and the jury recommended that Rolling be sentenced to death for each murder by a vote of twelve to zero. The trial court followed the jury's recommendation and sentenced Rolling to death for each homicide. We affirmed Rolling's sentences on direct appeal. See id. at 297. The United States Supreme Court denied Rolling's petition for writ of certiorari on November 17, 1997. See Rolling v. Florida, 522 U.S. 984, 118 S.Ct. 448, 139 L.Ed.2d 383 (1997).

Rolling filed his original 3.850 motion in November of 1998. In April of 1999, Rolling filed an amended 3.850 motion asserting two claims.¹ Following a Huff² hearing, the trial court held an evidentiary hearing on July 11-12 and July 15, 2000. Thereafter, the trial court entered a comprehensive, thirty-eight page order denying relief. This appeal follows.

ANALYSIS

On appeal, Rolling argues that the trial court erred in denying his claim alleging trial counsel were ineffective for failing to timely seek and procure a change of venue.³ Rolling's argument that trial counsel were ineffective is essentially twofold. First, Rolling argues that trial counsel were ineffective for waiting until jury selection was underway to move for a change of venue, rather than seeking a venue change during the three years preceding trial. Second, Rolling argues that even after they belatedly filed a motion for change of venue, trial counsel failed to adequately support the motion and argue in favor of a venue change. Rolling contends that had trial counsel timely sought and sufficiently supported the motion, the trial court would have been required to grant a change of venue.

On direct appeal, this Court thoroughly addressed the issue of whether the trial court erred in denying Rolling's motion for change of venue, which was ultimately filed by trial counsel.⁴ See Rolling, 695 So.2d at 283-88

. In finding that the trial court did not err in denying Rolling's motion for change of venue, we emphasized the meticulous jury selection procedure and screening process undertaken by the trial court. Moreover, we expressly rejected Rolling's argument that the pretrial publicity presumptively prejudiced the entire Alachua County community against him, as well as his claim of actual prejudice. See id. at 285-88. In sum, we concluded:

[B]ecause we find that the trial court's system was an effective one which produced an impartial jury, we affirm the trial court's denial of Rolling's motion for a change of venue. Neither the pretrial publicity in this case nor the lengthy jury selection process evidenced a community bias so pervasive as to make it impossible, under any circumstances, to seat an impartial jury in Gainesville.

Id. at 288.

This Court has repeatedly recognized that claims which were raised on direct appeal are procedurally barred in postconviction proceedings. See, e.g., Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla. 1995)

. At the same time, we have also recognized that a claim of trial court error and a claim of ineffectiveness may arise from the same underlying facts, but the claims themselves are distinct and—of necessity —have different remedies. See Bruno v. State, 807 So.2d 55, 63 (Fla.2001). Notwithstanding this distinction, based on the record in this case and our previous opinion thoroughly treating the venue issue and concluding that it was without merit, we find Rolling's claim is procedurally barred.

However, even if Rolling's claim were not barred, we would find it to be without merit.⁵ In order to prove an ineffective assistance of counsel claim, a defendant must establish 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.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Rutherford v. State, 727 So.2d 216, 219-20 (Fla.1998)

; Rose v. State, 675 So.2d 567, 569 (Fla.1996). To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694,

104 S.Ct. 2052. Ineffective assistance of counsel claims present a mixed question of law and fact subject to plenary review based on the Strickland test. See Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). This requires an independent review of the trial court's legal conclusions, while giving deference to the trial court's factual findings. See id.

In denying relief, the trial court determined that Rolling had failed to satisfy either prong under Strickland. After thoroughly discussing the case history and postconviction proceedings, the trial court concluded as follows:

While the defense team's belief in the ability to choose their model jury in Gainesville may have changed because of their evaluation of the jurors during voir dire, it was certainly not an unreasonable one. The record is replete with evidence that these attorneys did everything in their power to ensure that the adversarial process functioned as it should in our system of justice. One need only peruse the index of pleadings to see the Herculean efforts of the defense attorneys to protect their client's best interests. The index shows four pleadings relating to the grand jury; ten pleadings concerning protective orders; eight pleadings regarding public disclosure of materials and/or in camera inspections; eight pleadings relating to suppression of evidence; four pleadings regarding voir dire (including the motion for change of venue); five jury-related documents; and at least twenty-nine other motions. All told, the defense team filed in excess of seventy pleadings on Rolling's behalf. While the Court is mindful that quantity does not necessarily reflect quality, this case is a textbook example of strategic thinking and careful planning by skilled defense attorneys whose reputations amongst other members of the Florida bar, such as Dave Davis, bespeak their effectiveness.

A glance through the motions for protective orders and motions to prohibit public disclosure is ample reminder that for three years, the defense team took every opportunity possible to bring to this Court's attention the considerable publicity surrounding this case. It is difficult to fathom what else counsel could have done to make this jurist any more acutely aware of the circumstances of this case prior to jury selection. There is nothing counsel could have done in the voir dire process itself that would have increased this Court's scrutiny of each venireman, heightened the Court's observations, or increased the Court's attention to the reasonable doubt standard to which each juror was held.

A survey such as suggested by Defendant would not have changed the responses of the potential jurors. The defense team members testified that although technically giving all the right answers during voir dire, they concluded that the potential jurors were affected at a deeper level than perhaps even the jurors themselves knew. The only way the team was able to arrive at such a conclusion was to stand eye-to-eye with them, observing facial expressions and hearing vocal inflections. None of this information would have emerged from a pen-and-pencil questionnaire, and the lawyers were not ineffective for failing to conduct such an exercise.

In the final analysis, the difficulty with the defense team's case lay not in combating the extensive media coverage, but in the detailed confessions that came from the hand and mouth of their own client and the stark reality of the acts visited upon his victims. The jury selected received an abbreviated and condensed exposure to the horrific facts of this case. The evidentiary portion of the proceedings took two weeks, not the many months contemplated for a complete guilt phase trial. Any challenge to the integrity of the proceedings that occurred must be measured against the gravity of the

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