State v. Riechmann

Decision Date24 February 2000
Docket Number No. SC93236., No. SC89564
Citation777 So.2d 342
PartiesSTATE of Florida, Appellant, Cross-Appellee, v. Dieter RIECHMANN, Appellee, Cross-Appellant. Dieter Riechmann, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

Robert A. Butterworth, Attorney General, and Sandra S. Jaggard and Randall Sutton, Assistant Attorneys General, Miami, Florida, for Appellant, Cross-Appellee/Respondent.

Terri L. Backhus of Backhus & Izakowitz, Tampa, Florida, for Appellee, Cross-Appellant/Petitioner.

PER CURIAM.

The State appeals the trial court's order vacating Dieter Riechmann's death sentence and granting a new sentencing proceeding pursuant to Riechmann's Florida Rule of Criminal Procedure 3.850 motion. Riechmann cross-appeals the denial of his remaining claims and also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the following reasons, we affirm the trial court's order in its entirety.

PROCEEDINGS TO DATE

The facts in this case are set forth in Riechmann v. State, 581 So.2d 133 (Fla. 1991). Briefly stated, the evidence established that Riechmann and Kersten Kischnick, "life companions," came to Miami, Florida from Germany in early October 1987, and Kischnick was shot to death as she sat in the passenger seat of an automobile driven by Riechmann. Riechmann was charged with her murder. At trial, the State's theory was that Kischnick was a prostitute who worked for Riechmann, and when she no longer wanted to work as a prostitute, Riechmann killed her in order to recover insurance proceeds.

Riechmann maintained that they were riding around videotaping some of Miami's sights when they got lost and asked for directions. He contended that the stranger whom they asked fired the shot that killed Kischnick. Riechmann sped away looking for help, driving several miles before he found a police officer.

At trial, an expert for the State testified that numerous particles usually found in gunpowder residue were discovered on Riechmann's hand and, accordingly, there was a reasonable scientific probability that Riechmann had fired a gun. In Riechmann's hotel room, the police found three handguns and several rounds of ammunition, and an expert firearms examiner testified that the bullets were the same type as used to kill Kischnick. The examiner testified that the bullet that killed Kischnick could have been fired from any of the three makes of guns found in Riechmann's room. A serologist testified that the high-velocity blood spatter found on the driver's seat could not have gotten there if the driver's seat was occupied in a normal driving position when the shot was fired from outside the passenger-side window. Riechmann was convicted of first-degree murder.

At the penalty phase, Riechmann's attorney presented no mitigating evidence. Subsequently, the jury recommended the death penalty by a vote of nine to three. The trial judge followed the jury's recommendation and sentenced Riechmann to death, finding two aggravating factors.1 On appeal, this Court affirmed Riechmann's conviction and sentence,2 and the U.S. Supreme Court denied Riechmann's petition for writ of certiorari.3

On September 30, 1994, Riechmann filed his initial 3.850 motion.4 On May 13-17, June 11, and July 17-19, 1996, the court conducted an evidentiary hearing on all of the fourteen claims except claim twelve.5 Subsequently, the trial judge vacated Riechmann's sentence and ordered a new sentencing proceeding, concluding that Riechmann had received ineffective assistance of counsel at the penalty phase and that the sentencing order had been improperly written by the prosecutor instead of the judge. The judge denied the remainder of Riechmann's claims.

APPEAL

In these proceedings, the State appeals the trial court's order, while Riechmann challenges the denial of his other claims6 as well as seeks habeas corpus, alleging primarily ineffective assistance of appellate counsel.7

I. RULE 3.850 MOTION8
A. State's Appeal
INEFFECTIVE ASSISTANCE AT PENALTY PHASE

In his 3.850 motion, Riechmann alleged that defense counsel was ineffective at the penalty phase of the trial in failing to investigate or present any evidence of mitigation. At the penalty phase of the trial, defense counsel presented no evidence to counter the State's claims of aggravation or in support of mitigation. Thereafter, in argument, defense counsel reviewed the guilt-phase evidence with the jury, argued to the jury that Riechmann was an intelligent person with many decent qualities, and emphasized the testimony of Dina Moeller, a witness who had told the police that Riechmann loved Kischnick. He also discussed several aspects of the death penalty with the jury and told the jury how Riechmann had once saved Kischnick's life by telling her not to sit in the bathtub with the blower nearby.

At the evidentiary hearing, however, Riechmann presented seven witnesses9 who testified in detail about the positive personal qualities Riechmann showed during the extensive period that they knew him. They also established that he had a long-lasting "loving relationship" with Kischnick. They testified that they were available, willing and would have testified at Riechmann's trial if they had been contacted and requested to do so. The court also accepted affidavits of other witnesses who were unable to testify, including Riechmann's mother and brother, in praise of the earlier portions of his life. In addition, Riechmann presented Steven Potolsky,10 an attorney specializing in criminal law, as an expert witness. Potolsky testified that based on his review of the trial record, counsel's performance fell "well below effective representation." Moreover, he testified that he would not refer to the penalty portion of the trial as a penalty phase proceeding because no evidence was presented. Finally, defense counsel testified that he was unable to provide an explanation as to why he did not contact any of the witnesses contained in a handwritten list prepared by Riechmann entitled "Please Take in Germany Deposition."

Based primarily on the evidence discussed above, the evidentiary hearing court made the following findings:

The Court concludes that trial counsel's performance at sentencing was deficient. First, trial counsel failed to renew or pursue his motion to obtain the German and Swiss statements which would have provided him with mitigating evidence to present to the jury. To not do so vigorously when he lacked any mitigating evidence of his own was unreasonable and below community standards, especially where his closing argument contained little, if anything, of a mitigating nature.
Second, trial counsel's sentencing investigation was patently inadequate. At the post conviction hearing, he offered no reasonable explanation as to why he did not independently act in the best interest of his client to search for potential mitigating evidence. He spoke to no witnesses in Germany, and only spoke to members of the Defendant's family about efforts to raise funds, but not "much about the facts of the case." Regarding family members being helpful as witnesses, he stated, "I was able to determine that they weren't really available to me." He conceded he did not send an investigator to Germany, and clarified that he was not prohibited by the Defendant from conducting such an investigation. His file contained the Defendant's hand written list of persons in Germany for him to contact, but he did not recollect calling anyone on the list.
Consequently, trial counsel failed to unearth a large amount of mitigating evidence as to the Defendant's character, family history and relationship with the Victim, which could have been presented at sentencing. At the post conviction hearing, the Defendant presented the testimony of fifteen (15) individuals from Germany who were willing and able to testify at the Defendant's trial had they been contacted and asked to do so. The Court heard from landladies and neighbors Monika and Marlene Seeger, friends Martin and Ulrike Karpischek and Wolfgang Walitzky, and former relationship partners Doris Dessauer and Doris Rindelaub. All traveled from Germany at their own expense to speak for the Defendant. The Court also received written statements from many other individuals who would have made every effort to attend the trial, but who were unable to attend the post conviction hearing: friend and associate Otmar Fritz, friends Angelika Fritz, Sabine Plott, and Thomas Woehe; neighbor Modersohn; the Defendant's mother, Martha, and brother, Hans-Henning, and trial witness Ernst Steffen.
The Court concludes that the Defendant was prejudiced by his counsel's failure to present available mitigation as to his positive character traits, personal history and family background.... With such evidence presented, there is reasonable probability the outcome of the case would have been different, as against a jury, who without any mitigating evidence, was already ambivalent about their recommendation.

Order on Motion to Vacate Judgment of Conviction and Sentence (hereinafter cited as Order) at 53-55 (citations omitted).

In order to prove an ineffective assistance of counsel claim, a defendant must establish two elements:

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.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Rutherford v. State, 727 So.2d 216 (Fla.1998)

; Rose v. State, 675 So.2d 567 (Fla.1996). In Maxwell v. Wainwright, 490 So.2d...

To continue reading

Request your trial
104 cases
  • Johnson v. State
    • United States
    • Florida Supreme Court
    • January 27, 2011
    ...exercise its discretion to deny a request to have testimony read back to the jury. Majority op. at 1006 n. 4 (citing State v. Riechmann, 777 So.2d 342, 365 (Fla.2000)). Since whether to have testimony read back to the jury is a discretionary matter, it cannot be the case that the erroneous ......
  • Sanchez v. Sec'y, Fla. Dep't of Corr.
    • United States
    • U.S. District Court — Middle District of Florida
    • April 10, 2019
    ...waives the speedy trial rule, even if the motion for continuance ismade by counsel over a defendant's protestations. State v. Riechmann, 777 So. 2d 342, 365 (Fla. 2000); Randall v. State, 938 So. 2d 542, 544 (Fla. 1st DCA 2006). In Ground Two, the Court can find no deficient performance by ......
  • Rodriguez v. State
    • United States
    • Florida Supreme Court
    • May 26, 2005
    ...order at the direction of Judge Thomas Carney in violation of Florida law and that trial counsel failed to object. See State v. Riechmann, 777 So.2d 342 (Fla.2000) (concluding that defendant was denied an independent weighing of aggravating and mitigating circumstances because trial judge, ......
  • Hurst v. State
    • United States
    • Florida Supreme Court
    • September 17, 2009
    ...factors and preparation of the sentencing order to the prosecution is improper and will require reversal. See, e.g., State v. Riechmann, 777 So.2d 342, 351 (Fla.2000). That is not what occurred Even where an improper communication occurs, reversal is not automatic. In Randolph, we found tha......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT