Stewart v. State, No. SC96177.

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM.
• Citation: 801 So.2d 59
• Parties: Kenneth Allen STEWART, Appellant, v. STATE of Florida, Appellee.
• Decision Date: 20 September 2001
• Docket Number: No. SC96177.

801 So.2d 59

Kenneth Allen STEWART, Appellant,
v.
STATE of Florida, Appellee

No. SC96177.

Supreme Court of Florida.

September 20, 2001.

Rehearing Denied November 26, 2001.

801 So.2d 62

Harry P. Brody, Assistant CCRC-Middle, and Jeffrey M. Hazen, CCRC-Middle Attorney, Capital Collateral Regional Counsel-Middle, Tampa, FL, for Appellant

Robert A. Butterworth, Attorney General, and Carol M. Dittmar, Assistant Attorney General, Tampa, FL, for Appellee.

PER CURIAM.

Kenneth Allen Stewart, an inmate under sentence of death, appeals an order entered by the trial court denying his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons that follow, we affirm the trial court's order denying postconviction relief.

I. FACTUAL AND PROCEDURAL HISTORY

In 1986, Stewart was convicted of first-degree felony murder, attempted second-degree murder with a firearm, robbery with a firearm, and arson. In brief, the evidence established the following:

In April 1985, Michele Acosta and Mark Harris picked up appellant, Kenneth Stewart, while he was hitchhiking. When Acosta stopped to drop Stewart off, he struck her on the head with the butt of a gun and fired three shots, hitting Acosta in the shoulder and Harris in the spine. Stewart then forced Acosta and Harris from the car before driving off and picking up a friend, Terry Smith. The two removed items from the car's trunk and Stewart burned the car after telling Smith that the car belonged to a woman and a man whom he had shot. Acosta recovered from her injuries; Harris later died.

Stewart v. State, 549 So.2d 171, 172 (Fla. 1989).¹

Following the penalty phase of the trial, the jury recommended death and the trial court imposed the death penalty. The trial court found two aggravating factors: (1) that Stewart had prior violent felony convictions (attempted first-degree murder, attempted second-degree murder with a firearm, and armed robbery); and (2) that the murder was committed during the course of a robbery. In mitigation the trial court found: (1) that the murder was committed under the influence of extreme mental or emotional disturbance; (2) Stewart's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially

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impaired; (3) Stewart's age at the time of the offense was twenty-one. The court accorded these mitigating factors little or slight weight

On appeal, this Court affirmed Stewart's convictions, but remanded the case so that the trial court could provide written findings in support of its imposition of the death penalty and its departure from the sentencing guidelines in imposing a life sentence for the attempted second-degree murder conviction. See Stewart, 549 So.2d at 177. On remand, the trial court reduced to writing its findings on aggravation and mitigation in support of the death sentence, which this Court affirmed on appeal. See Stewart v. State, 588 So.2d 972 (Fla.1991).²

On August 2, 1993, Stewart filed his initial motion for postconviction relief. Stewart subsequently amended that motion, filing the present version on September 17, 1996, raising twenty-four claims.³ The trial court summarily denied the bulk of Stewart's claims as procedurally barred or insufficiently pled.⁴ The trial court held

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an evidentiary hearing on Stewart's remaining claims: (1) ineffective assistance of counsel during the pretrial and guilt phases; (2) State's failure to produce jail records in violation of Brady;⁵ (3) inadequate mental health assistance; and (4) ineffective assistance of counsel during the penalty phase. Following the evidentiary hearing, the trial court denied Stewart relief

II. APPEAL

Stewart raises the following ten issues in this appeal: (1) ineffective assistance of counsel during the guilt and penalty phases; (2) State failed to produce jail records in violation of Brady; (3) penalty phase jury instructions diminished the jury's sense of responsibility in violation of Caldwell; (4) penalty phase jury instructions shifted burden to Stewart to prove that death sentence was inappropriate in violation of Caldwell; (5) death sentence rests on unconstitutional automatic aggravating circumstance; (6) statute setting forth aggravating factors is vague and overbroad; (7) vague and overbroad prosecutorial argument on aggravating circumstances and ineffectiveness of counsel for failing to object to the same; (8) shackling during trial and penalty phase denied Stewart fair trial; (9) capital sentencing statute is unconstitutional on its face and as applied; and (10) cumulative error.

III. ANALYSIS

At the outset, we dispose of several claims because they are procedurally barred or clearly without merit as a matter of law.⁶ We now turn to address the remainder of the claims.

A. Ineffective Assistance of Counsel

Stewart alleges trial counsel was ineffective in: (1) failing to employ voluntary intoxication as a defense and as mitigation; (2) failing to investigate and present evidence of Stewart's alleged childhood abuse; (3) failing to obtain Stewart's jail records; and (4) failing to adequately prepare Stewart's mental health expert.

For Stewart to succeed in his ineffectiveness claims he must satisfy 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

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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 State v. Riechmann, 777 So.2d 342, 349 (Fla.2000); Downs v. State, 740 So.2d 506, 515 (Fla.1999); Rutherford v. State, 727 So.2d 216, 219 (Fla.1998). Additionally, and because the Strickland standard requires establishment of both prongs, when a defendant fails to make a showing as to one prong, it is not necessary to delve into whether he has made a showing as to the other prong. See 466 U.S. at 697, 104 S.Ct. 2052 ("[T]here is no reason for a court deciding an effective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one."); see, e.g., Downs v. State, 740 So.2d 506, 518 n. 19 (Fla.1999) (finding no need to address prejudice prong where defendant failed to establish deficient performance prong).

Failure to Employ Voluntary Intoxication Defense

First, Stewart claims that trial counsel was ineffective in failing to employ a voluntary intoxication defense or request a jury instruction on the defense. We disagree. Claims expressing mere disagreement with trial counsel's strategy are insufficient: "Counsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel's strategic decisions. Moreover, strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct." Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) (citations omitted). The record of both the evidentiary hearing and trial demonstrates that trial counsel considered a voluntary intoxication defense but rejected it for strategic reasons.

During the evidentiary hearing, Stewart's trial counsel, Rex Barbas, testified that he considered the defense of voluntary intoxication given the fact that some of the evidence in the case indicated that Stewart had been drinking on the day of the offense, but opted against it after determining it was not a viable defense for Stewart. Specifically, Barbas testified that his conversations with Stewart persuaded him that voluntary intoxication defense would be inappropriate given Stewart's detailed account of the crime, which included a statement to Barbas that he planned to shoot and rob the victims.

Moreover, Barbas testified that further militating against the employment of a voluntary intoxication defense was the State's potential use of the experts who examined Stewart to determine his competency to stand trial. Drs. Mussenden and Gonzalez would have been available to testify about Stewart's detailed account of the circumstances of the crime. Barbas concluded that such testimony would more than negate any potential benefit of a voluntary intoxication defense.

In sum, the record demonstrates that counsel made an informed and reasoned decision not to pursue a voluntary intoxication defense. See Occhicone, 768 So.2d at 1048 (affirming denial of petitioner's ineffectiveness claim for counsel's failure to present additional evidence in support of voluntary intoxication defense where defense counsel testified that they chose against presenting the additional evidence because of taped statements made by the petitioner to a psychologist which demonstrated that the defendant "had a good recall of what transpired the night of

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the murders and therefore was not intoxicated to the level of not being able to premeditate the murders"); Johnson v. State, 593 So.2d 206, 209 (Fla.1992) (holding that counsel's decision not to pursue voluntary intoxication defense was a strategic decision, not deficient performance, where defense counsel testified that he rejected the defense because the defendant "recounted the incident with `great detail and particularity' in his confession").⁷

Failure to Investigate

Stewart next contends that trial counsel was deficient for failing to investigate and present evidence of Stewart's alleged childhood abuse at the hands of his stepfather, Bruce Scarpo. We disagree.

In further explaining the "deficiency" prong of the ineffectiveness...