Smith v. Sec'y, Dep't of Corr.

• Decision Date: 25 March 2020
• Docket Number: Case No. 8:13-cv-2260-T-36AEP
• Parties: LAWRENCE JOEY SMITH, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

LAWRENCE JOEY SMITH, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:13-cv-2260-T-36AEP

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

March 25, 2020

ORDER

Petitioner, a Florida prisoner, initiated this action by filing a petition for habeas corpus relief pursuant to 28 U.S.C. Section 2254 (Doc. 1), and a memorandum in support (Doc. 2). Upon consideration, the Court ordered Respondent to show cause why the relief sought in the petition should not be granted (Doc. 6). Thereafter, Respondent filed a response to the petition (Doc. 21), to which Petitioner replied (Doc. 30). For the reasons set forth below, the petition will be denied.

Petitioner alleges six grounds for relief:

1. The trial court lacked jurisdiction to try, convict, and sentence Petitioner because the Indictment was not drafted, signed, and filed by a qualified assistant state attorney;

2a-j. Defense counsel was ineffective in failing to:

a. effectively cross examine State witnesses Theodore Butterfield and Heath Brittingham;

b. elicit key testimony from the surviving victim Stephen Tuttle;

c. impeach witnesses Bryon Loucks and Ken Shook; d. adequately investigate the case and present available evidence;

e. obtain Butterfield and Brittingham's grand jury testimony;

f. object to Tuttle's testimony that Petitioner's co-defendant Faunce Pearce committed a sexual battery on Tuttle;

g. object to the prosecutor's improper argument;

h. adequately argue against the trial court's sustaining the State's objection to defense counsel impeaching Butterfield by questioning him as to why he failed to mention in his prior statements to law enforcement that Pearce and Petitioner switched guns prior to the shootings;

i. present an alternate defense theory that Butterfield shot the victims; and

j. move to dismiss the Indictment because it was not drafted, signed, and filed by a qualified assistant state attorney;

2k. The cumulative effect of defense counsel's errors deprived Petitioner a fair trial;

3. The State committed Brady and Giglio violations in failing to disclose the deal it made with Butterfield in exchange for his testimony, in allowing him to testify that he had no incentive to testify for the State, and arguing to the jury that he had no reason to testify falsely;

4. Newly discovered evidence casts doubt on his guilt and warrants a new trial;

5. The trial court was without jurisdiction because the jury panel took an oath before a person who was not qualified to administer an oath; and

6. He was denied a fair trial because the trial judge was not present when the jury panel took its oath.

I. FACTS¹

On the evening of September 13, 1999, Faunce Pearce visited Bryon Loucks at Loucks' home, which was also his place of business, and asked Loucks' teenage stepson, Ken Shook, to obtain for him a book of 1000 geltabs (LSD) for $1200. Shook called two friends, StephenTuttle and Robert Crawford, who in turn called another friend, Amanda Havner. Havner contacted her source for drugs, Tanya Barcomb, who said she could obtain the geltabs. Tuttle, Crawford, and Havner then went to Loucks' home, where Pearce gave them the money and indicated that they should not return without either the money or the drugs. The four teenagers went to Barcomb's house, where Barcomb indicated that she, her boyfriend, and Havner would obtain the drugs from a supplier while the boys remained behind. After arriving at an apartment complex, Barcomb told Havner to stay in the car. Barcomb and her boyfriend then entered a friend's apartment, and her boyfriend hid the money in his own shoe after punching himself in the face. When they returned to the car, they told Havner that the supplier had stolen the money. Because of Barcomb's deception, Shook, Tuttle, Crawford, and Havner eventually were forced to return to Loucks' home without either the money or the drugs.

While the teenagers were gone, Pearce and Loucks learned by telephone that the money had been stolen. Pearce became very angry and was standing outside with a gun visibly tucked in his pants when they returned shortly thereafter. As Shook, Tuttle, Crawford and Havner exited the car, Pearce waved the gun and ordered them inside the office of Loucks' business. Loucks and the four teenagers remained confined there by Pearce for an unknown period, during which Pearce's mood swung between calm and threatening. Pearce refused to allow anyone to leave and, at various times, waved his gun. At one point, he grabbed Havner by the throat and slammed her head against a wall. At another, he took Tuttle outside and forced him at gunpoint to perform oral sex upon him.

Eventually, Pearce allowed Havner to leave. Around that time, Pearce also called a friend, Theodore Butterfield, and asked Butterfield to bring Smith, the defendant in this case, and come to Loucks' home. Many neighbors were at the house where Butterfield received the call,including Heath Brittingham, who agreed to join Butterfield. When Smith, Butterfield and Brittingham arrived, they were visibly armed, and Smith stated, "We're here to do business." According to Tuttle, Pearce then spoke with these three men outside. Brittingham also testified that Pearce and Smith spoke to each other at a distance from Brittingham, so that he did not hear what was said. At some point, Pearce told the three men that Tuttle and Crawford were going to show them where to find the people who stole Pearce's money. Pearce, still holding his gun, then told Tuttle and Crawford to get in his car. Loucks refused to allow Pearce to take his step-son, Shook, as well. Loucks offered to drive Tuttle and Crawford, who had arrived in Havner's car, to their homes and to get Pearce the money in the morning. Pearce refused, but told Loucks he was not going to hurt the boys--only take them down the road, punch them in the mouth, and make them walk home. Pearce instructed Loucks to wait by the phone to hear from the boys.

Pearce, Smith, Butterfield, Brittingham, Tuttle and Crawford left in Pearce's car, a two-door trans am with T-tops. Pearce drove, and Smith sat in the front passenger seat. In the back, Tuttle sat on Crawford's lap in the middle, while Butterfield and Brittingham sat on either side of the boys. After driving a short time, Pearce turned in the wrong direction for traveling to Barcomb's location. He drove a short distance more and performed a U-turn. According to Butterfield's testimony, sometime during this drive Smith told Pearce that his 9 mm pistol jammed and the two exchanged guns, with Smith receiving Pearce's functional .40 caliber pistol. Brittingham also testified that Pearce and Smith exchanged guns during this trip.

Pearce stopped the car along the side of the road and told Tuttle to get out of the car. Smith first exited from the passenger's side and stood between the door and the car while Tuttle crawled over Brittingham from the middle of the backseat and out the passenger's side. Pearce told Smith to "Pop him in the f---ing jaw," to which Smith replied, "F--- that." Smith thenturned around and shot Tuttle once in the back of the head. When Smith got back in the car, Pearce asked, "Is he dead?" and Smith replied, "Yeah, he's dead. I shot him in the head with a f---ing .40." Pearce then drove approximately two hundred yards further, stopped the car, and Smith again exited the vehicle. Pearce ordered Crawford out. Crawford complied while pleading, "Don't. Please don't." Smith shot Crawford once in the head, Crawford fell, and Smith shot him a second time in the chest.

After leaving the scene, Smith threatened to kill Butterfield and Brittingham if they snitched. Pearce drove to a restaurant where he and Smith ate. Pearce and Smith then left Butterfield and Brittingham at a grocery store, telling them not to leave. They returned approximately forty minutes to an hour later. They drove to a bridge, where Smith wrapped the .40 caliber pistol in newspaper and threw it in the water. Shortly thereafter they split ways, and Smith attempted to leave town by bus but was unable to do so because of an approaching hurricane.

Remarkably, Tuttle survived the gunshot to his head. At trial, he testified that he remembered getting out of the car, then everything went black, and his next memory was waking up on the side of the road. He felt the hole in his head but did not remember being shot or who shot him. He eventually flagged down assistance. Crawford, however, died at the scene.

The entire course of these events occurred during the evening of September 13, and into the morning of September 14, 1999. That morning, Butterfield and Brittingham were located and interviewed by police. Smith was arrested on the same day, and Pearce was located and arrested a couple of weeks later. The murder weapon, Pearce's .40 caliber pistol, was recovered from the location in Tampa Bay where Butterfield testified Smith had thrown it, and the bullets found in Tuttle and Crawford were matched to the same pistol.

Smith and Pearce were charged as codefendants and tried separately. Butterfield and Brittingham served as State witnesses. At trial, the defense's theory was that although Smith was present in the car, Pearce was the shooter, possibly through the T-top opening in the car, and that Butterfield and Brittingham's testimonies were designed to cover for Pearce by naming Smith as the shooter. On May 3, 2001, a jury convicted Smith of the attempted first-degree murder of Tuttle and the first-degree murder of Crawford.

II. PROCEDURAL HISTORY

Petitioner was convicted of first-degree murder and attempted first-degree murder (Respondent's Ex. 2). He was sentenced to death on the murder conviction and life in prison on the attempted murder conviction (Id.). The Florida Supreme Court affirmed the convictions and life sentence but remanded the case to the trial court for a new penalty phase hearing (Id.). Petitioner was resentenced to life in prison on the murder conviction (Respondent's Ex. 7)....