Torres-Arboleda v. Dugger

• Decision Date: 21 April 1994
• Docket Number: Nos. 75751,P,TORRES-ARBOLED,A,79246,s. 75751
• Citation: 636 So.2d 1321
• Parties: 19 Fla. L. Weekly S213 Oscaretitioner, v. Richard L. DUGGER, etc., Respondent. Oscarppellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 1321

636 So.2d 1321

19 Fla. L. Weekly S213

Oscar TORRES-ARBOLEDA, Petitioner, v. Richard L. DUGGER, etc., Respondent.

Oscar TORRES-ARBOLEDA, Appellant, v. STATE of Florida, Appellee.

Nos. 75751, 79246.

Supreme Court of Florida.

April 21, 1994.

Rehearing Denied June 6, 1994.

Michael J. Minerva, Capital Collateral Representative, and Stephen M. Kissinger, Asst. Capital Collateral Representative, Office of the Capital Collateral Representative, Tallahassee, for petitioner-appellant.

Robert A. Butterworth, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., Tampa, for respondent-appellee.

PER CURIAM.

Oscar Torres-Arboleda, a prisoner under sentence of death, seeks postconviction relief. He appeals the trial court's denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief and petitions this Court for a writ of habeas corpus. We have jurisdiction pursuant to article V, sections 3(b)(1) and (9) of the Florida Constitution. We reverse the trial court's order denying rule 3.850 relief because we find that Torres-Arboleda was denied effective assistance of counsel during the penalty phase of his trial. However, we deny Torres-Arboleda's petition for a writ of habeas corpus.

Torres-Arboleda was convicted of first-degree murder and attempted armed robbery for the 1981 homicide of Tampa resident Patricio Lorenzo. The jury recommended life imprisonment by a vote of seven to five. The trial judge overrode the jury's recommendation and imposed a death sentence, based upon his finding of two aggravating circumstances (previous felony conviction and committed while attempting to commit a robbery) and no mitigating circumstances. On direct appeal, this Court affirmed both the conviction and the sentence. Torres-Arboledo v. State, 524 So.2d 403 (Fla.), cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988). ¹ We affirmed the jury override because the sole factors upon which the jury could have relied in making its recommendation, namely Torres-Arboleda's intelligence and potential for rehabilitation, were not of "such weight that reasonable people could conclude that they outweigh the aggravating factors proven." Id. at 413.

After the Governor issued a death warrant in 1990, Torres-Arboleda filed an "Emergency Motion to Vacate Judgment of Conviction and Sentence" raising fourteen claims. The circuit court granted a stay of execution, ordered an evidentiary hearing as to all claims of ineffective assistance of counsel, and ore tenus summarily denied all other claims. After evidentiary hearing, the circuit court denied relief as to the ineffective assistance of counsel claims as well.

Torres-Arboleda raises the following thirteen claims ² in the appeal of the denial of his rule 3.850 motion: 1) defense counsel was ineffective at the guilt phase; 2) newly discovered evidence proves his innocence; 3) defense counsel was ineffective at the penalty phase; 4) prosecutorial comments rendered his trial unfair; 5) his absence during the charge conferences and lack of transcription of the conferences denied him due process; 6) the trial court and this Court failed to properly evaluate mitigation evidence; 7) the prosecutor improperly argued nonstatutory aggravating factors; 8) improper victim impact and victim characteristic evidence was considered; 9) felony murder constituted an automatic aggravating circumstance; 10) hearsay statements were improperly introduced during the penalty phase; 11) the trial court relied on an unconstitutional prior conviction as an aggravating circumstance; 12) the cumulative effect of procedural and substantive errors deprived him of fair trial; and 13) the application of Florida Rule of Criminal Procedure 3.851 violated his due process rights.

The majority of these claims are either procedurally barred or without merit. Proceedings under rule 3.850 are not to be used as a second appeal; nor is it appropriate to use a different argument to relitigate the same issue. Medina v. State, 573 So.2d 293, 295 (Fla.1990). Likewise, issues that could have been raised on direct appeal, but were not, are not cognizable through collateral attack. See Johnson v. State, 593 So.2d 206 (Fla.) cert. denied, --- U.S. ----, 113 S.Ct. 119, 121 L.Ed.2d 75 (1992); Smith v. State, 445 So.2d 323 (Fla.1983), cert. denied, 467 U.S. 1220, 104 S.Ct. 2671, 81 L.Ed.2d 375 (1984). Applying this standard to the claims raised by Torres-Arboleda, we find that issues four, five, and seven through twelve are procedurally barred because they should have been raised on direct appeal but were not. To the extent that issue four also raises a claim that the State made an improper "Golden Rule" argument during the guilt phase closing arguments, that claim was previously raised on direct appeal and specifically rejected by this Court. Torres-Arboledo, 524 So.2d at 411. We find no merit to issue six that claims that both the trial court and this Court failed to properly evaluate the mitigation evidence presented. See Torres-Arboledo, 524 So.2d at 413, for discussion of jury override and mitigation evidence presented. We also find issue thirteen to be without merit. To the extent that these issues raise claims of ineffective assistance of counsel, we find no merit as Torres-Arboleda has failed to demonstrate deficient performance or prejudice as required by Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Consequently, we deny claims four through thirteen.

Torres-Arboleda also claims that counsel rendered ineffective assistance during both the guilt and penalty phases. Under the two-prong Strickland test, Torres-Aboleda 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. Id. at 687, 694, 104 S.Ct. at 2064, 2068. A court considering a claim of ineffective counsel need not determine whether counsel's performance was deficient when it is clear that the alleged deficiency was not prejudicial. Kennedy v. State, 547 So.2d 912, 913 (Fla.1989).

In issue one, Torres-Arboleda argues that counsel was ineffective during the guilt phase for failing to: investigate and present alibi evidence; impeach State witnesses on the number of their prior convictions; urge that State witnesses were biased; and challenge the State's evidence regarding the murder weapon. The record reflects that defense counsel did ask State witnesses Raymond Jacobs, Fernando Munoz, and George Williams about previous convictions. Although the exact number of convictions was not elicited in each instance, each of the witnesses admitted that he had previous convictions. Counsel also elicited that witness Eva Munoz was married to Fernando Munoz and that Fernando was currently serving time in prison. Furthermore, counsel did question Williams about a reduction in his sentence, but Williams denied that the State had made any deal with him. Based upon this record, we do not find that defense counsel was deficient in either impeaching State witnesses or arguing witness bias. Moreover, we do not find that counsel's performance relating to the murder weapon was deficient. Torres-Arboleda claims that counsel should have argued that the gun could have belonged to the victim and that the shooting could have occurred during a struggle for the weapon. However, counsel cannot be faulted for failure to raise these speculations relating to the weapon when defendant steadfastly maintained his alibi defense.

While failure to thoroughly investigate the alibi defense may constitute deficient performance under circumstances of this case, we find that Torres-Arboleda has failed to establish the prejudice prong of the Strickland test. Four of Torres-Arboleda's friends testified that he was in Tampa shortly before or shortly after the shooting of Lorenzo, which is contrary to the alleged alibi testimony offered at the 3.850 evidentiary hearing. Three other witnesses placed Torres-Arboleda at the scene of the homicide. Thus, we cannot say there is a reasonable probability that the outcome of the proceeding would have been different had counsel presented this alibi evidence.

We also reject Torres-Arboleda's alternative claim in issue two that this alibi evidence constituted newly-discovered evidence of innocence which requires reversal of his conviction. Two requirements must be met in order to set aside a conviction or sentence because of newly discovered evidence. First, the asserted facts "must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence." Hallman v. State, 371 So.2d 482, 485 (Fla.1979), abrogated on other grounds, Jones v. State, 591 So.2d 911 (Fla.1991). Second, "the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial." Jones, 591 So.2d at 915. We find that the claim fails to meet both of these requirements. First, the defendant was aware of this alibi evidence at the time of trial and counsel could have known about it through diligent investigation. Second, for the same reasons discussed in issue one, this evidence probably would not produce an acquittal on retrial in the face of contradictory testimony that placed the defendant at the scene of the homicide.

However, we do find merit to Torres-Arboleda's claim in issue three that defense counsel rendered ineffective assistance of counsel during the penalty phase. The original sentencing court found two aggravating circumstances and no mitigating circumstances. The only mitigating evidence that counsel presented during the penalty phase was the expert testimony of clinical psychologist Dr. Mussenden, who testified that Torres-Arboleda was very intelligent and an excellent candidate for rehabilitation. Torres-Arboledo, 524 So.2d at 413. In affirming the...