Rose v. State, 83623

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM; GRIMES; WELLS; WELLS
• Citation: 675 So.2d 567
• Parties: 21 Fla. L. Weekly S109 James Franklin ROSE, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 83623,83623
• Decision Date: 07 March 1996

Page 567

675 So.2d 567 21 Fla. L. Weekly S109 James Franklin ROSE, Appellant,
v.
STATE of Florida, Appellee. No. 83623. Supreme Court of Florida. March 7, 1996.
Rehearings Denied June 18, 1996.

Page 568

An Appeal from the Circuit Court in and for Broward County, No. 76-5036CF10; John Ferris, Judge.

Gail E. Anderson and Daren L. Shippy, Assistant Capital Collateral Representatives, Office of the Capital Collateral Representative, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General and Sara D. Baggett, Assistant Attorney General, West Palm Beach, for Appellee.

PER CURIAM.

We have on appeal the judgment of the trial court denying James Franklin Rose, an inmate under sentence of death, relief requested under Rule 3.850, Florida Rules of Criminal Procedure. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm in part, reverse in part and remand for a new sentencing proceeding before a jury.

PROCEDURAL STATUS

A more detailed description of the facts of this case is contained in the initial direct appeal, Rose v. State, 425 So.2d 521 (Fla.1982), cert. denied, 461 U.S. 909, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983), wherein we affirmed Rose's convictions and vacated his death sentence and remanded for resentencing. Upon resentencing, the death sentence was reimposed and we affirmed. Rose v. State, 461 So.2d 84 (Fla.1984), cert. denied, 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 706 (1985).

In his subsequent rule 3.850 motion, Rose challenged the lawfulness of his conviction and death sentence on a variety of grounds. The trial court summarily denied Rose's motion without conducting an evidentiary hearing. On appeal, we reversed and directed the trial court to "reconsider Rose's motion and to hold an evidentiary hearing on the ineffective assistance of counsel claims and any other appropriate factual issues presented in the motion." Rose v. State, 601 So.2d 1181, 1184 (Fla.1992).

The trial court reconsidered Rose's 3.850 motion and held an evidentiary hearing on Rose's claims that he received ineffective assistance of counsel at both the guilt and penalty phases of his trial. The trial court again denied relief as to all claims and ruled that Rose's claims of ineffective assistance of counsel did not meet the standards set forth in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 668 (1984).

APPEAL

In this appeal, Rose raises numerous claims, most of which are procedurally

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barred, ¹ meritless, ² or moot in light of this opinion. ³ The remaining issues consist of Rose's claims that he received ineffective assistance of counsel at both the guilt and penalty phases of his trial. We affirm the trial court's denial of relief as to Rose's claim of ineffective assistance of counsel at the guilt phase. Because we find that counsel at the penalty phase was ineffective for failing to investigate and present mitigation evidence, we reverse the trial court's order denying postconviction relief and remand for a new sentencing proceeding.

GUILT PHASE PERFORMANCE OF COUNSEL

First, we consider the trial court's ruling that appellant's claims of ineffective assistance of trial counsel, based on counsel's inadequate performance during the guilt phase of his trial, were insufficient to meet the standards set forth under Strickland 's two-prong test. Under Strickland, a defendant must establish two components in order to demonstrate that counsel was ineffective: (1) counsel's performance was deficient and (2) counsel's deficient performance prejudiced the defense. As to the first prong, the defendant must establish that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." 466 U.S. at 687, 104 S.Ct. at 2064. As to the second prong, the defendant must establish that, "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. "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." Id. ⁴ Applying this standard, we find no error

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by the trial court in rejecting these claims.

Rose simply has failed to demonstrate both a deficient performance and the probability of a different outcome based on the alleged deficiencies. Rose alleges trial counsel was ineffective for failing to call as witnesses several people who were at the bowling alley on the night of the victim's disappearance and who gave statements to the police that they saw the victim alive, or saw Rose's van during the time period when the State maintained that Rose had taken the victim from the bowling alley in his van and killed her. In addition, Rose alleges trial counsel was ineffective for failing to use statements from some of these witnesses to refute the State's "jealous boyfriend" theory.

At the evidentiary hearing below, trial counsel testified that each of these witnesses had inherent problems. Some were key witnesses for the State, others were very emotional and counsel felt he would be unable to control them if called to testify. Most importantly, all of these witnesses would relate testimony damaging to Rose. Many of these witnesses had told police that they saw blood on Rose's pants when he returned to the bowling alley and then saw him go to the bathroom and try to cover it up with grease. Others saw blood on Rose's van and heard Rose say the blood was from cutting himself while changing a tire. These same witnesses checked Rose's van and did not believe that a tire had been changed. At the evidentiary hearing, trial counsel testified that he was well aware of the problems with each witness and consciously decided not to call any of these witnesses who said they had seen the victim or Rose's van because their testimony would have been more detrimental than helpful.

Applying the Strickland standard to these claims, we conclude that the trial court did not err in concluding that Rose's claims of ineffective assistance of trial counsel during the guilt phase constitute claims of disagreement with trial counsel's choices as to strategy. See Cherry v. State, 659 So.2d 1069 (Fla.1995) (concluding standard is not how current counsel would have proceeded in hindsight). In light of counsel's testimony at the hearing, it is apparent that counsel was aware of the witnesses in question and knowledgeable about the pros and cons of calling them as witnesses. Based upon this knowledge, counsel made an informed strategic decision not to call them. In light of the strong likelihood that the State could have successfully impeached each of these witnesses, it is apparent that there was a reasoned basis for counsel's decision. Hence, the trial court did not err in concluding that Rose failed to demonstrate that trial counsel's performance was deficient, or that these alleged errors undermined confidence in the outcome of the guilt phase proceedings. Therefore, we affirm the trial court's denial of relief as to Rose's claims of ineffective assistance of counsel at the guilt phase of his trial.

PENALTY PHASE PERFORMANCE OF COUNSEL

We reach a contrary result on Rose's claim of ineffective assistance of counsel at the penalty phase. In this context, assuming there were errors, Rose "must demonstrate that but for counsel's errors he would have probably received a life sentence." Hildwin v. Dugger, 654 So.2d 107,

Page 571

109 (Fla.), cert. denied, --- U.S. ----, 116 S.Ct. 420, 133 L.Ed.2d 337 (1995). Such a demonstration is made if "counsel's errors deprived [defendant] of a reliable penalty phase proceeding." Id. at 110 (emphasis added). The failure to investigate and present available mitigating evidence is a relevant concern along with the reasons for not doing so. Id. at 109-10.

In Baxter v. Thomas, 45 F.3d 1501, 1512-13 (11th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 385, 133 L.Ed.2d 307 (1995), the United States Court of Appeals for the Eleventh Circuit outlined the legal framework for considering a claim of ineffective assistance of counsel at the penalty phase of a capital trial:

An ineffective assistance of counsel claim is a mixed question of law and fact subject to plenary review under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). See Cunningham v. Zant, 928 F.2d 1006, 1016 (11th Cir.1991). In order to obtain a reversal of his death sentence on the ground of ineffective assistance of counsel, Baxter

must show both (1) that the identified acts or omissions of counsel were deficient, or outside the wide range of professionally competent assistance, and (2) that the deficient performance prejudiced the defense such that, without the errors, there is a reasonable probability that the balance of aggravating and mitigating circumstances would have been different.

Bolender v. Singletary, 16 F.3d 1547, 1556-57 (11th Cir.) (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064), cert. denied, --- U.S. ----, 115 S.Ct. 589, 130 L.Ed.2d 502 (1994).

"An attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence." Porter v. Singletary, 14 F.3d 554, 557 (11th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 532, 130 L.Ed.2d 435 (1994). The failure to do so "may render counsel's assistance ineffective." Bolender, 16 F.3d at 1557.

Rose claims that he is entitled to relief under Hildwin and Baxter since the record reflects that counsel made practically no investigation of mitigation and presented little evidence of mitigation in the sentencing proceedings despite the existence of substantial evidence of mitigating circumstances that would have been uncovered if counsel had made a reasonable investigation.

Rose presented evidence at the hearing below that the...