State v. Coney, No. SC01-1185

• Court: Florida Supreme Court
• Writing for the Court: SHAW, Senior Justice.
• Citation: 845 So.2d 120
• Parties: STATE of Florida, Appellant, Cross-Appellee, v. Jimmie Lee CONEY, Appellee, Cross-Appellant. Jimmie Lee Coney, Petitioner, v. James V. Crosby, Jr., Respondent.
• Docket Number: No. SC02-900., No. SC01-1185
• Decision Date: 06 March 2003

845 So.2d 120

STATE of Florida, Appellant, Cross-Appellee,
v.
Jimmie Lee CONEY, Appellee, Cross-Appellant.
Jimmie Lee Coney, Petitioner,
v.
James V. Crosby, Jr., Respondent

Nos. SC01-1185, SC02-900.

Supreme Court of Florida.

March 6, 2003.

Rehearing Denied May 2, 2003.

845 So.2d 124

Charles J. Crist, Jr., Attorney General and Lisa A. Rodriguez, Miami, FL and Scott A. Browne, Tampa, FL, Assistant Attorneys General, for Appellant, Cross-Appellee/Petitioner

William M. Hennis, III, Assistant Capital Collateral Regional Counsel, Fort Lauderdale, FL, for Appellee, Cross-Appellant/Respondent.

SHAW, Senior Justice.

The State of Florida appeals an order of the circuit court vacating the sentence of death imposed on Jimmie Lee Coney and granting a new penalty phase proceeding before a jury pursuant to his first motion filed under Florida Rule of Criminal Procedure 3.850 following an evidentiary hearing. Coney cross-appeals. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm. Coney also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. We deny the petition.

I. FACTS

The facts of the underlying crime are set forth fully in this Court's opinion on direct appeal, which provides in part:

Jimmy Coney set his putative jailhouse lover ablaze. Coney was incarcerated in the Dade Correctional Institution (DCI) serving a 420-year sentence for sexual battery, robbery, burglary with assault, and attempted murder, all arising from the assault of a twelve-year old girl in 1976. While at DCI, Coney's homosexual lover, Patrick Southworth, spurned him. Coney obtained a key to Southworth's cell, entered at about 5 a.m., April 6, 1990, doused him with a flammable liquid, and set him afire. Southworth was burned over a large portion of his body, remained conscious for several hours, lapsed into unconsciousness, and died the following day. No one saw the crime take place except Southworth, who awoke when the liquid was splashed on him. An empty "butt can" was found under Southworth's bunk, and a shoebox containing empty soda cans, tissue paper, and cell keys was found in a garbage container near the fire. The cans contained trace amounts of a flammable liquid and the keys fit Southworth's cell door.

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A prison official testified at trial that Southworth told him shortly after he was burned that when he felt the liquid poured on him he looked up and saw James Coney. He said Coney set him on fire because he, Southworth, is homosexual. The paramedic who treated the victim testified that Southworth told him that his lover set him on fire because he, Southworth, left him. The prison officer who accompanied Southworth to the hospital testified that Southworth told him that Jimmie Coney did it because he, Southworth, would no longer have sex with him.

Inmate Young testified that a week before the murder Coney asked him to get some lacquer thinner from the prison auto shop. Young gave him the liquid in a soda can. Inmate Hoover testified that Coney and Southworth were often seen together touching and that Coney introduced Southworth to Hoover as "his boy," i.e., his homosexual lover. On the day before the murder, Coney seemed angry at Southworth and told Hoover, "I'm going to get that motherfucker.... I'm going to burn his ass." Coney's cellmate, inmate Jones, testified that at 4 a.m. on the night of the murder, Coney awoke, took the shoebox later found near the fire from under his bed, poured paint thinner from two soda cans into a "butt can," left the cell, and returned later announcing, "I got the key."

Coney was convicted of first-degree murder and arson. The state put on the following witnesses during the penalty phase: Former Assistant State Attorney Jacobs testified concerning the details of Coney's prior rape of an eighteen-year-old woman who had car trouble. Coney abducted her, bit her on the face and leg, and raped her. Next, a young woman testified that Coney forced his way into her house when she was twelve years old and sexually assaulted and strangled her, leaving her for dead. The woman's mother testified concerning her daughter's condition when she, the mother, arrived home following the assault. Coney, in turn, put on eight witnesses, including relatives who testified concerning his childhood and upbringing.

Coney v. State, 653 So.2d 1009, 1010-11 (Fla.1995).

The jury recommended death by a seven-to-five vote, and the judge imposed a sentence of death based on five aggravating circumstances¹ and no mitigating circumstances. Coney raised ten issues on appeal.² This Court struck one aggravating

845 So.2d 126

circumstance³ and affirmed. On March 24, 1997, Coney filed in circuit court an initial "shell" rule 3.850 motion and on August 5, 1999, an amended motion, raising twenty-two issues.⁴ The circuit court on December 13-15, 2000, conducted an evidentiary hearing on two claims of ineffectiveness of trial counsel (and on a conflict of interest claim to the extent it had an impact on the ineffectiveness claims) and granted partial relief, vacating the death sentence and ordering a new penalty phase proceeding before a jury. The State appeals, raising a single issue,⁵ and Coney

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cross-appeals, raising seven issues.⁶ Coney also has filed in this Court a petition for a writ of habeas corpus, raising three issues.⁷

II. RULE 3.850 MOTION

As noted above, the State appeals the circuit court order vacating Coney's death sentence and granting a new penalty phase proceeding before a jury. Coney cross-appeals the circuit court's order to the extent the court rejects his remaining rule 3.850 claims.

A. Ineffectiveness of Trial Counsel

The following disparate facts are relevant to this claim. During the penalty phase of the trial, defense counsel presented several witnesses, including relatives and friends of Coney, who testified in general terms concerning his childhood and upbringing. No mental health mitigation was presented. Trial counsel testified at the evidentiary hearing below. Due to a fee dispute, the court-appointed defense psychiatrist, Dr. Castiello, never examined Coney prior to trial or later; he never testified at trial and did not testify at the evidentiary hearing. Two other defense mental health experts, Drs. Mutter and David, examined Coney shortly before the penalty phase of the trial and submitted brief reports. Neither was called to testify at trial; both testified at the evidentiary hearing below.

Two additional defense mental health experts, Drs. Hyde and Eisenstein, examined Coney prior to the evidentiary hearing, testified at the evidentiary hearing, and adduced extensive evidence of mitigating circumstances. Their testimony was rebutted by the State's mental health expert, Dr. Ansley, who also examined Coney prior to the evidentiary hearing and testified at the hearing. The circuit court weighed the conflicting testimony of the various witnesses and ruled that trial counsel's performance was both deficient and prejudicial as to the penalty phase but not the guilt phase. The State appeals.

The United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), set forth the following two-pronged standard of proof for a trial court to apply when evaluating a claim of ineffectiveness of trial counsel:

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

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the adversary process that renders the result unreliable.

Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The Court in Strickland addressed further both the first⁸ and second⁹ prongs of the above test and noted that both prongs are mixed questions of law and fact.¹⁰

This Court in Stephens v. State, 748 So.2d 1028 (Fla.1999), set forth the abiding standard of review for an appellate court to apply when reviewing a trial court's ruling on an ineffectiveness claim. We later summarized that standard as follows:

The standard of review for a trial court's ruling on an ineffectiveness claim also is two-pronged: The appellate court must defer to the trial court's findings on factual issues but must review the

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court's ultimate conclusions on the [performance] and prejudice prongs de novo.

Bruno v. State, 807 So.2d 55, 61-62 (Fla. 2001).

In the present case, after hearing the conflicting testimony, the circuit court concluded that counsel's performance was deficient under the first prong of Strickland based on the following reasoning:

Trial counsel, Manuel Casabielle, was appointed to represent Mr. Coney by the original trial judge, Roy Gelber. Mr. Casabielle testified at the evidentiary hearing. He acknowledged that this was the first capital case he had handled, that he found Mr. Coney to be a difficult client, that he did not talk to Mr. Coney about the death penalty since Mr. Coney did not want to talk about it, and that, although he was aware of Mr. Coney's prior rape cases, he did not talk to prior counsel or review prior court records to determine if there was any information which may bear on the defendant's mental status.

Further, although in April 1991, almost eleven months before the trial began in February 1992, Mr. Casabielle filed a motion to have Coney psychologically evaluated, he has no recollection as to whether an evaluation was actually performed by the court-appointed psychiatrist, Dr. Castiello. In fact, there is no record of a report having been

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