Rose v. State

• Decision Date: 11 March 1993
• Docket Number: No. 76377,76377
• Citation: 617 So.2d 291
• Parties: 18 Fla. L. Week. S152 Milo A. ROSE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 291

617 So.2d 291

18 Fla. L. Week. S152

Milo A. ROSE, Appellant, v. STATE of Florida, Appellee.

No. 76377.

Supreme Court of Florida.

March 11, 1993.

Rehearing Denied May 10, 1993.

Larry Helm Spalding, Capital Collateral Representative; Martin J. McClain, Chief Asst. CCR and Kenneth D. Driggs, Asst. CCR, Office of the Capital Collateral Representative, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen. and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

Milo A. Rose, a prisoner under sentence of death, appeals the circuit court's denial of his motion for postconviction relief. We have jurisdiction. Art. V, Sec. 3(b)(1), Fla. Const.

Rose was convicted and sentenced to death for the 1982 murder of Robert C. Richardson. This Court affirmed the conviction and sentence on direct appeal. Rose v. State, 472 So.2d 1155 (Fla.1985). The pertinent facts of the murder are set forth in that opinion:

At approximately 10 p.m. on October 18, 1982, several witnesses were talking together outside one of their residences. Testimony at trial revealed that they saw two men walking down the street. Subsequently they heard the sound of breaking glass and saw that one of the men, later identified as Robert C. Richardson, was lying on the ground. The other man, identified by witnesses as Milo Rose, appellant, was standing over him. Evidence shows that appellant then walked to a nearby vacant lot, picked up a concrete block, and returned to the man on the ground. Appellant raised the block over his head and hurled it down on Richardson's head. He picked up the block and hurled it down a total of five or six times. The area where the incident occurred was well lighted, so the witnesses were able to see the man with the concrete block clearly.

Appellant was living with Mrs. Richardson, the victim's mother, at the time. Two other acquaintances were staying with them. On the night of the incident, these two acquaintances left an apartment which was in the vicinity where the killing occurred and found appellant hitchhiking on a nearby street. Appellant got into their truck and stated several times that he had just killed Richardson. Appellant was later found in Mrs. Richardson's house and was arrested.

Id. at 1156-57.

Rose filed the instant motion for postconviction relief in 1987. After an evidentiary hearing on some of the claims, the circuit court denied relief.

In his first claim on appeal, Rose argues that his trial counsel, Darryl Rousen, rendered ineffective assistance in the penalty phase by failing to prepare and present mitigating evidence. Rose argues that mitigating evidence regarding his family background, his chronic alcohol abuse, and his intoxication on the night of the offense could and should have been presented.

To warrant relief on this claim, Rose must demonstrate: (1) that his counsel's performance was deficient; and (2) a reasonable probability that the result of the proceeding would have been different absent the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). After an evidentiary hearing on this claim, the court below found that Rose failed to establish either prejudice or deficient performance.

Initially, we note that Rousen had limited time to prepare for trial, due in large part to Rose's own actions. A team of two public defenders was originally appointed to represent Rose in October 1982. In January 1983, Rose sought to dismiss the public defenders because of an "irreconcilable conflict." The same public defenders had represented Rose in an earlier case and Rose had filed a grievance proceeding against them alleging gross misconduct, negligence, and ineffective assistance with respect to the earlier representation. The trial judge appointed a new attorney in February. Trial was set for mid-March. However, that attorney withdrew because of case load conflicts. The next attorney was appointed only a few days before trial was set to begin. He was allowed to withdraw after Rose told him that he did not want him as his attorney and refused to waive speedy trial to allow time to prepare for trial.

Rousen was appointed on March 31. Trial was set for April 11. On April 7, Rousen moved to withdraw because Rose refused to waive his right to speedy trial. Finally, Rose agreed to waive speedy trial to allow Rousen to conduct discovery. Trial was ultimately set for late June.

Rose presented the testimony of two mental health experts at the postconviction hearing. Dr. Krop diagnosed Rose as suffering from chronic alcohol and drug abuse and having minimal brain damage. Although Dr. Krop did not find any statutory mitigating factors present, he testified that several nonstatutory mitigating circumstances existed: Rose was raised in an abusive and neglected environment; his parents were alcoholic; he was a sickly child; he was viewed as different by his parents, peers, and himself; and he was intoxicated at the time of the offense.

Dr. Fox testified that Rose was suffering from an extreme mental disturbance at the time of the murder due to his chronic alcoholism. In addition, Dr. Fox opined that Rose's capacity to conform his conduct to the requirements of law was substantially impaired and that Rose lacked the specific intent to commit the crime due to his intoxication. We note that Dr. Fox's conclusions conflicted with those of Dr. Krop. The circuit court rejected Dr. Fox's testimony regarding the existence of statutory mitigating factors as farfetched and unworthy of belief. The trial court has broad discretion in determining the applicability of mitigating circumstances and may accept or reject the testimony of an expert witness. Roberts v. State, 510 So.2d 885, 894 (Fla.1987), cert. denied, 485 U.S. 943, 108 S.Ct. 1123, 99 L.Ed.2d 284 (1988). The trial court did not abuse its discretion in rejecting Dr. Fox's testimony. ¹

Rousen testified below that at the guilt phase of trial, Rose insisted on presenting the defense that he was innocent and was not present at the scene of the murder. Against Rousen's advice, Rose would not allow counsel to pursue other defenses such as insanity or intoxication. According to Rousen, Rose did not change his posture at the penalty phase. "When a defendant preempts his attorney's strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made." Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir.1985), cert. denied, 483 U.S. 1026, 107 S.Ct. 3248, 97 L.Ed.2d 774 (1987). Rousen testified that once the case reached the penalty phase, he tried to raise issues of insanity, intoxication, and lack of specific intent to the extent possible while still maintaining Rose's innocence. Given the limitations placed on him by Rose, Rousen made reasonable tactical decisions with respect to the presentation of mitigating evidence. See Jones v. State, 528 So.2d 1171, 1175 (Fla.1988) (where guilt-phase defense was that defendant was innocent, counsel made reasonable tactical decision in not calling psychiatrist to testify at penalty phase that defendant was paranoid where counsel concluded that the testimony would destroy the defense's credibility with the jury and would not harmonize with other mitigating evidence).

We further find that Rousen conducted a reasonable investigation into possible mitigation related to Rose's alcoholism and intoxication and made reasonable tactical decisions with respect to the existing mitigation. Rousen testified that he discussed potential mitigating factors with Dr. Slomin, the court-appointed psychologist, prior to the penalty phase. Dr. Slomin diagnosed Rose as suffering from antisocial personality disorder with alcohol abuse. Slomin and Rousen decided that the voluntary use of alcohol or drugs was not necessarily a good mitigating defense. They ruled out the possibility of organic brain syndrome because of the results of testing and because of Rose's recall of the events on the night of the murder. Rousen and Dr. Slomin testified below that they determined that the best course of action was to present the facts to the jury and argue that a person with antisocial personality disorder could function well in prison and should not be executed.

Even if Rose had given defense counsel freedom to pursue more fully the effects of his alcoholism and intoxication, we find no reasonable probability that the testimony presented at the postconviction hearing on these issues would have changed the jury's recommendation of death or the trial court's imposition of the death penalty. The jury was aware of most of the nonstatutory mitigation brought out by Dr. Krop. Dr. Slomin testified at the penalty phase that Rose's parents and brothers allegedly were alcoholics and that Rose may have been in an alcoholic blackout at the time of the offense. In addition, the jury was aware that Rose was an alcoholic and that he had consumed a substantial amount of alcohol prior to the murder.

Counsel was not ineffective in not calling Rose's family members in the penalty phase to testify about his family background. In reviewing this claim, it must be remembered that Rose was thirty-two years old when the murder was committed. Two of Rose's cousins testified at the postconviction hearing that Rose's parents were alcoholics and were verbally abusive to the children. One cousin described an incident when Rose was slapped by one of his parents. Rose's brother testified that their parents were alcoholics, that their mother physically abused the children, that Rose has a chronic drinking problem, that Rose had rheumatic fever as a child, and that other children picked on Rose because of his dark complexion.

Rousen testified that he did not contact family members because Rose indicated to him that his family would not be helpful to him. In the testimony below, one of the cousins admitted that she saw Rose's family only once or twice a year as she was growing up. Be...