State v. Lewis

• Citation: 838 So.2d 1102
• Decision Date: 12 December 2002
• Docket Number: No. SC96890, No. SC02-468.
• Parties: STATE of Florida, Appellant/Cross-Appellee, v. Lawrence Francis LEWIS, Appellee/Cross-Appellant. Lawrence Francis Lewis, Petitioner, v. Michael Moore, Respondent.
• Court: United States State Supreme Court of Florida

838 So.2d 1102

STATE of Florida, Appellant/Cross-Appellee, v. Lawrence Francis LEWIS, Appellee/Cross-Appellant.

Lawrence Francis Lewis, Petitioner, v. Michael Moore, Respondent.

Nos. SC96890, SC02-468.

Supreme Court of Florida.

December 12, 2002.

Rehearing Denied February 14, 2003.

Richard E. Doran, Attorney General, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, FL, for Appellant/Cross-Appellee/Respondent.

Todd G. Scher, Litigation Director, Capital Collateral Regional Counsel, Fort Lauderdale, FL, for Appellee/Cross-Appellant/Petitioner.

PER CURIAM.

The State of Florida appeals an order granting in part Lawrence Lewis's motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, in which the trial judge vacated Lewis's sentence of death and ordered a new sentencing proceeding. Lewis petitions this Court for a writ of habeas corpus and cross-appeals the trial court's order, asserting that the trial judge erroneously denied his motion to vacate his conviction for first-degree murder. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons expressed below, we affirm the trial court's order and deny the petition.

FACTS

The underlying facts of this case were set forth as follows:

At about 10 p.m. on May 11, 1987, the witness Mayberry was a passenger in a truck being driven by the victim, Gordon, who pulled off the highway because he believed that a tire had been thrown in front of his truck. As Gordon approached a jeep parked beside the highway, a man Mayberry later identified as appellant attacked him with a pipe. Gordon ran toward his truck, chased by appellant. As Gordon climbed into the rear of the truck, appellant got in beside Mayberry, who was now driving, and ordered him to stop or be killed. Mayberry refused, jumped out of the truck, and hid for two or three hours beside the highway, during which time he heard Gordon's truck go by several times. He never saw Gordon alive again.

Appellant appeared briefly at the home of witness Markum at approximately 11 p.m. on May 11, driving a truck she had never seen before, and reported that his jeep was disabled on the road. Markum testified that there was an injured man on the floor of the truck who was asking for water and said he was in pain. Appellant returned to Markum's between midnight and 2 a.m. on May 12. Markum overheard appellant tell her friend Ballard that appellant had left some guy on U.S. 27 and put the truck in a canal. Witness Hedden, after 12:30 a.m. on May 12, saw appellant driving a truck later identified as Gordon's, and saw a man on the floor who had a broken arm. Witness Rivera testified that when she, Ballard, and appellant went to retrieve appellant's jeep in the early morning hours of May 12, appellant told her he had killed someone.

On May 12, Gordon's truck was pulled from a canal on U.S. 27. On May 13, Gordon's body was found in the tall grass in the median of U.S. 27, across the road from where his truck had been found. The medical examiner testified the victim had five lacerations to the head, injuries to his left shoulder, a compound fracture to his left forearm, and various defensive wounds. The examiner opined that Gordon was alive when the wounds were inflicted and he died from blunt head trauma.

Lewis v. State, 572 So.2d 908, 910 (Fla. 1990). Based on these facts, the jury convicted Lewis of first-degree murder. After Lewis waived mitigation evidence, the jury recommended the sentence of death by a vote of ten to two. The trial judge followed the jury's recommendation and imposed the death penalty, finding no mitigation and three aggravators: heinous, atrocious, or cruel ("HAC"); prior violent felony convictions; and the murder was committed during the course of a kidnaping. Lewis appealed, raising eight claims.¹

Lewis's conviction and sentence were affirmed by this Court.

Lewis sought postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. After a Huff² hearing, the trial court granted an evidentiary hearing to determine: (1) whether Lewis had ineffective assistance of counsel during the guilt phase; (2) whether there was a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), as it related to the State's witness, James Mayberry; (3) whether there was ineffective assistance of counsel during the penalty phase; and (4) whether the trial court erred by failing to independently weigh aggravating and mitigating circumstances. After the evidentiary hearing, the trial court denied all relief by written order entered on November 5, 1998. Lewis sought a rehearing and, based on his motion, the trial court ordered an additional evidentiary hearing as to Lewis's claim relative to whether Judge Kaplan was biased when he sentenced Lewis to death.³ Prior to the hearing, however, the trial court reconsidered its initial order and granted the postconviction motion in part, finding that Lewis's counsel was ineffective during the penalty phase. Accordingly, the judge ordered a resentencing and canceled the pending evidentiary hearing.

The State appealed the trial court's order, which grants Lewis a new sentencing proceeding. Lewis cross-appealed, raising five additional issues: (1) whether his counsel was ineffective during the guilt phase of the proceeding; (2) whether Lewis was sentenced to death by a biased judge; (3) whether improper ex parte communications occurred between the trial judge and the prosecutor during the penalty phase; (4) whether additional public records should be disclosed; and (5) whether Lewis is entitled to a resentencing based on erroneous penalty phase jury instructions. For the reasons discussed below, we affirm the trial court's order, which denied the motion to vacate Lewis's conviction but vacated the death sentence and ordered a resentencing.⁴ Since the State's appeal addresses the penalty phase, we treat that phase first.

THE STATE'S APPEAL

The State asserts that the trial court erred in granting Lewis a resentencing based on the ineffective assistance of penalty phase counsel because Lewis (as opposed to counsel) was responsible for the failure to present mitigation. Lewis asserts that his waiver of mitigation was invalid since defense counsel failed to conduct an adequate penalty phase investigation and hence could not and did not properly advise him relative to the ramifications of waiving mitigation. The trial court held an evidentiary hearing on this claim at which time numerous witnesses were called. In its final order, the trial judge concluded that defense counsel did not spend sufficient time in preparing for the penalty phase. This finding is supported by competent, substantial evidence.

Lewis's two trial attorneys were the first witnesses to testify at the hearing. Richard Kirsch was lead counsel, and at the time of appointment, he had forty years of experience practicing law and previously had handled at least one death penalty case. Oliveann Lancy was appointed as co-counsel in the case. Since she had just been admitted to The Florida Bar months prior to the appointment, she relied heavily on Kirsch's direction. Counsel spent a significant amount of time preparing for the guilt phase of the trial. In fact, the billing records indicated that Kirsch and his co-counsel spent over 659 hours on the case, including attending 67 depositions, 13 hearings, and a 20-day trial. In contrast to this vast preparation for the guilt phase, counsel spent very little time readying for the penalty phase proceedings. Kirsch testified that he did not recall spending any time preparing for the penalty phase until after the jury returned its guilty verdict; nor did he direct Lancy or the investigator to do any penalty phase investigation. Importantly, after the guilty verdict was returned, less than 18 hours were spent preparing for the penalty phase.

Counsel was not diligent in discovering mitigation from Lewis's family members and friends. Although Kirsch tried to talk with Lewis's mother (Bonnie Miller), this attempt was hampered because of Kirsch's delay in starting the investigation. At this point, Miller was quite upset that her son was convicted and blamed it on counsel's trial decisions. The only other attempt to interview witnesses that was mentioned during the evidentiary hearing was a brief conversation with Lewis's father, which occurred mere days prior to the penalty phase. Kirsch asked him if he could testify for the defense or be interviewed by Lewis's mental health expert. Lewis's father responded that he did not feel that he had anything that he could offer his son because he was also a convicted felon. When Kirsch was asked whether he talked to the family members and explained to them the information that counsel needed in presenting evidence, he could only recall talking with Miller:

I'm trying to think of what conversations I had with Ms. Miller. It wasn't much and it was, and she just was not going to talk to me. I mean, she had her ideas about what went wrong during the trial with one witness, I think, or one of the witnesses, I don't recall, and I had a reason for not calling. But she was very upset about it. I know she wanted all of the depositions that had been taken and she was just very upset. She didn't care to talk to me.

Counsel never contacted any of Lewis's other family members in an attempt to discover potential mitigation, nor did counsel attempt to obtain mitigating evidence that was contained in Lewis's background records, including Lewis's hospitalization records, school records, and foster care information.

Kirsch focused on mental health evidence in preparing for the penalty phase but waited more than two weeks after the guilty verdict was returned before he requested the trial court to appoint Dr. Joel Klass as the mental health expert. When Dr. Klass first met with Lewis, he described Lewis as being uncooperative, very suspicious, and confused...