Spencer v. State, No. SC00-1051

• Citation: 842 So.2d 52
• Decision Date: 09 January 2003
• Docket Number: No. SC00-2588., No. SC00-1051
• Parties: Dusty Ray SPENCER, Appellant, v. STATE of Florida, Appellee. Dusty Ray Spencer, Petitioner, v. James V. Crosby, Jr., Secretary, Florida Department of Corrections, Respondent.
• Court: Florida Supreme Court

842 So.2d 52

Dusty Ray SPENCER, Appellant, v. STATE of Florida, Appellee.

Dusty Ray Spencer, Petitioner, v. James V. Crosby, Jr., Secretary, Florida Department of Corrections, Respondent.

Nos. SC00-1051, SC00-2588.

Supreme Court of Florida.

January 9, 2003.

Rehearing Denied March 25, 2003.

Bill Jennings, Capital Collateral Regional Counsel—Middle, and Eric C. Pinkard, Assistant CCRC—Middle Region, Tampa, FL, for Appellant/Petitioner.

Charlie Crist, Attorney General, and Scott A. Browne, Assistant Attorney General, Tampa, FL, for Appellee/Respondent.

PER CURIAM.

Dusty Ray Spencer appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Spencer also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained below, we affirm the trial court's denial of postconviction relief and we deny relief under the habeas petition.

Spencer was convicted of first-degree murder, aggravated assault, aggravated battery, and attempted second-degree murder involving two attacks upon his wife Karen Spencer and his stepson Timothy Johnson. Karen was killed during the second attack. The facts surrounding these crimes are discussed in Spencer v. State, 645 So.2d 377, 379-80 (Fla.1994). The jury recommended a death sentence by a seven-to-five vote. The trial judge found three aggravating circumstances (a previous violent felony conviction based on the contemporaneous convictions; the murder was heinous, atrocious, or cruel (HAC); and the murder was cold, calculated, and premeditated (CCP)), no statutory mitigating circumstances, and one nonstatutory mitigating circumstance (Spencer's history and background). The trial judge followed the jury's recommendation and imposed death. Spencer was also sentenced to five years for aggravated assault, fifteen years for attempted second-degree murder, and fifteen years for aggravated battery, with the sentences to run consecutively for a total of thirty-five years.

On direct appeal, Spencer raised seven issues. He argued that: the trial court erred in denying his motion for judgment of acquittal because the evidence was insufficient to establish premeditation; his motion to sever charges relating to the previous "iron incident" was improperly denied; his objections to the standard jury instructions on premeditation and reasonable doubt were improperly denied; the trial court should have granted his motion for mistrial based upon the prosecutor's improper argument regarding matters not in evidence; the State's use of hearsay testimony violated his rights to due process and to confront and cross examine witnesses; his death sentence had been impermissibly imposed because the trial court considered improper aggravating circumstances, excluded existing mitigating circumstances, and did not properly weigh the circumstances; and Florida's death penalty statute is unconstitutional. This Court affirmed Spencer's convictions, but vacated his death sentence because the trial court improperly found the CCP aggravating circumstance and improperly rejected the statutory mitigating circumstances of "committed while the defendant was under the influence of extreme mental or emotional disturbance" and "substantial impairment of the defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law." Id. at 384-85. Consequently, we remanded the case for reconsideration of the death sentence by the judge. See id. at 385.

On remand, the trial court heard argument from both parties and once again imposed the death sentence. The trial judge found two aggravating circumstances (prior violent felony and HAC), the two statutory mental mitigating circumstances, and a number of nonstatutory mitigating factors in Spencer's background. The judge gave some weight to the statutory mental mitigators, very little weight to the nonstatutory mitigators, and concluded that the aggravating circumstances outweighed all of the mitigating circumstances. See Spencer v. State, 691 So.2d 1062 (Fla.1996)

.

On appeal after resentencing, Spencer raised two issues. He argued that: the death sentence was improperly imposed because the sentencing order was insufficient in its factual basis and rationale, the judge considered inappropriate aggravating factors, the mitigating factors outweighed the aggravating, and the death sentence was not proportionately warranted; and the introduction of hearsay testimony during the penalty phase violated his constitutional rights to due process, confrontation, and cross-examination. This Court found no merit to Spencer's claims and affirmed his death sentence. See id. The United States Supreme Court denied Spencer's petition for certiorari. See Spencer v. Florida, 522 U.S. 884, 118 S.Ct. 213, 139 L.Ed.2d 148 (1997).

In September 1999, Spencer filed an amended motion to vacate his convictions and sentences. The lower court conducted a Huff¹ hearing in December 1999 and subsequently conducted a limited evidentiary hearing in March 2000.

Following the evidentiary hearing, the court entered a comprehensive fifty-nine page order denying all relief. Spencer appeals that denial to this Court and raises ten issues. Spencer claims that: (1) he was denied a fair trial by various instances of prosecutorial misconduct; (2) trial counsel rendered ineffective assistance during the guilt phase of the trial; (3) trial counsel rendered ineffective assistance during the penalty phase of the trial; (4) the State committed a Brady² violation by failing to disclose that a reserve deputy sheriff assisted in the investigation of Spencer's first attack on the victim; (5) pretrial publicity and improper contact between protesters and the jurors resulted in juror bias; (6) trial counsel rendered ineffective assistance during voir dire questioning of the prospective jurors; (7) the postconviction court should have granted an evidentiary hearing on several other claims of ineffective assistance of trial counsel during the penalty phase; (8) the State committed several Giglio³ violations by either presenting false evidence or by misrepresenting the evidence during argument to the jury; (9) Rule Regulating the Florida Bar 4-3.5(d)(4), which prohibits trial counsel from interviewing jurors, denied him adequate assistance of counsel in pursuing postconviction relief; and (10) cumulative errors resulted in an unfair proceeding.

Spencer has also filed a habeas corpus petition with this Court, raising two issues. Spencer claims that Florida's death penalty statute is unconstitutional on its face and as applied and that his conviction and sentence violate the constitutional guarantees to due process, effective assistance of counsel, equal protection, and right to jury trial. Spencer also asserts that appellate counsel was ineffective in failing to raise claims of fundamental error on direct appeal.

Denial of Rule 3.850 Motion

In issue one, Spencer claims that the prosecutor engaged in various misconduct during both the guilt and penalty phases of the trial, including improper Golden Rule arguments, improper appeals to the jury's emotions, eliciting prohibited testimony, making false statements, and improperly commenting on Spencer's right not to testify. The lower court found that all of Spencer's claims of prosecutorial misconduct were procedurally barred from consideration in the postconviction proceedings as they should have been raised on direct appeal. However, "in an abundance of caution" the lower court granted a hearing as to these claims and addressed each on the merits.

We conclude that Spencer's substantive claims of prosecutorial misconduct could and should have been raised on direct appeal and thus are procedurally barred from consideration in a postconviction motion. See Smith v. State, 445 So.2d 323, 325 (Fla.1983)

("Issues which either were or could have been litigated at trial and upon direct appeal are not cognizable through collateral attack."). Each of the alleged violations appears on the trial record and could have been raised on direct appeal. Thus, the postconviction court properly concluded that the claims were procedurally barred and we affirm the denial of relief on this claim.

In issue two, Spencer asserts that his trial counsel rendered ineffective assistance during the guilt phase of the trial and cites the following specific examples as evidence of this failure: counsel did not present evidence to rebut the State's claim of premeditation; counsel did not present expert testimony regarding Spencer's "dissociative state" during the murder; counsel did not impeach the testimony of the physician who treated the victim after the first attack; counsel did not test the brick used to strike the victim for evidence of Spencer's blood; counsel failed to impeach the testimony of the victim's son regarding Spencer's use of latex gloves; counsel failed to object to the prosecutor's "emotional display" during closing argument; counsel conceded that Spencer struck the victim with an iron in the first attack and admitted that Spencer intended to kill the victim; and counsel failed to elicit evidence that Spencer regularly carried a knife.

In order to prevail on a claim of ineffective assistance of trial counsel, a defendant must demonstrate that (1) counsel's performance was deficient and (2) there is a reasonable probability that the outcome of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

. A reasonable probability is a probability sufficient to undermine confidence in the outcome. See id. at 694, 104 S.Ct. 2052. In reviewing counsel's performance, the court must be highly deferential to counsel, and in assessing the performance, every effort must "be made to eliminate the distorting effects of hindsight, to...