Valle v. State, SC94754.

• Citation: 778 So.2d 960
• Decision Date: 18 January 2001
• Docket Number: No. SC94754.,SC94754.
• Parties: Manuel VALLE, Appellant, v. STATE of Florida, Appellee.
• Court: United States State Supreme Court of Florida

778 So.2d 960

Manuel VALLE, Appellant, v. STATE of Florida, Appellee.

No. SC94754.

Supreme Court of Florida.

January 18, 2001.

Rehearing Denied March 12, 2001.

Todd G. Scher, Litigation Director, and Suzanne D. Myers, Staff Attorney, Office of the Capital Collateral Regional Counsel—South, Fort Lauderdale, FL, for Appellant.

Robert A. Butterworth, Attorney General, and Fariba N. Komeily, Assistant Attorney General, Miami, FL, for Appellee.

PER CURIAM.

Manuel Valle appeals the trial court's denial of postconviction relief after an evidentiary hearing. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we affirm the trial court's order denying Valle postconviction relief.

This Court recited the procedural history of this case in Valle's appeal from the trial court's summary denial of his first motion for postconviction relief under Florida Rule of Criminal Procedure 3.850:

Valle was convicted of first-degree murder, attempted murder, and possession of a firearm, and was sentenced to death for the murder charge.[¹] Valle v. State, 394 So.2d 1004 (Fla.1981). On direct appeal, this Court reversed the convictions and sentences and remanded for a new trial. Id. On retrial in 1981, Valle was again convicted on those three counts and again sentenced to death. The convictions and sentences were affirmed by this Court in Valle v. State, 474 So.2d 796 (Fla.1985). The United States Supreme Court subsequently vacated Valle's death sentence and remanded the case to this Court for further consideration in light of Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), regarding the admissibility of model prisoner testimony. Valle v. Florida, 476 U.S. 1102, 106 S.Ct. 1943, 90 L.Ed.2d 353 (1986). We remanded for a new sentencing hearing before a new jury.[²] On resentencing, the jury recommended death by a vote of eight to four. The trial court, Judge Norman Gerstein presiding, imposed the death sentence, finding five aggravating factors (three were merged) and no mitigating evidence.[³]

Valle v. State, 705 So.2d 1331, 1332-33 (Fla.1997) (citation omitted).

After this Court affirmed Valle's death sentence in 1991,⁴ Valle filed his first rule 3.850 motion for postconviction relief, which the trial court summarily denied without prejudice to file a legally sufficient motion. See id. at 1332. Valle then filed his second postconviction motion, raising twenty claims. See id. Following a Huff⁵ hearing, the trial judge denied the second postconviction motion without an evidentiary hearing. See id. at 1336.

On appeal to this Court, Valle argued that he was entitled to an evidentiary hearing and claimed that his resentencing counsel was ineffective based on the following acts or omissions: (1) failing to move for disqualification of the resentencing trial judge based upon allegations that the judge had kissed the victim's widow and fraternized with friends of the victim in full view of the jury; (2) unreasonably introducing evidence of Valle's prison behavior, referred to as Skipper⁶ evidence; (3) failing to move for disqualification of the trial judge based on alleged ex parte communications with the State; (4) failing to call as witnesses Valle's mother and former wife; (5) failing to properly object to and preserve for appeal the State's peremptory challenges at voir dire for racial discrimination; and (6) failing to prevent the State from filling the courtroom with an "overwhelming presence" of uniformed police officers for the purpose of intimidating the jury and judge. See id. at 1333-35. Moreover, Valle claimed that the trial court erred by not requiring the Dade County State Attorney's Office to comply with section 119.07(2)(a), Florida Statutes (1999), which mandates that an agency list the basis for a claimed public records exemption. See Valle, 705 So.2d at 1335

. Finally, Valle asserted that the trial court erred by refusing to grant Valle leave to pursue public records claims against several state agencies under chapter 119, Florida Statutes (1999), and to thereafter amend his motion. See id.

This Court affirmed the summary denial of all but two of Valle's claims:⁷ ineffective assistance as to the failure to move for disqualification of the trial judge and ineffective assistance regarding the introduction of the Skipper evidence.⁸See id. at 1336. Accordingly, this Court remanded for an evidentiary hearing on these two claims. See id.

On remand, the trial court held an evidentiary hearing. Because Valle voluntarily waived his claim pertaining to the allegations concerning the resentencing judge's conduct, the trial court considered only Valle's claim concerning ineffective assistance of trial counsel for unreasonably presenting Skipper evidence, which led to the State's introduction of prejudicial rebuttal evidence. The trial court ultimately denied Valle's claim.

In the present case, Valle raises two issues on appeal from the trial court's denial of postconviction relief. First, Valle claims the trial court erred in adopting almost verbatim the State's proposed order denying 3.850 relief, in violation of Valle's due process rights. Second, Valle asserts that the record demonstrates ineffective assistance at his resentencing due to defense counsel's presentation of Skipper evidence. We address each of these issues in turn.

ADOPTION OF THE STATE'S PROPOSED ORDER

Following the conclusion of the evidentiary hearing, the trial court requested and received proposed orders from both the State and Valle. On receipt of the State's order, Valle immediately filed written objections not only to the content of the order, but also to the propriety of accepting proposed orders generally. The day after receiving Valle's objections, the court entered an order denying relief. Valle claims that the trial court violated his due process rights by the wholesale adoption of the State's proposed order denying postconviction relief. Valle asserts that although the trial court emphasized that it would write its own order, the court's order was almost identical to the State's proposed order.

This Court has rejected similar due process challenges based solely on the fact that the trial court adopted the State's proposed order where that order was supported by the testimony at the evidentiary hearing. See Patton v. State, 25 Fla. L. Weekly S749, S750-51, ___ So.2d ___, ___ - ___, 2000 WL 1424526 (Fla. Sept. 28, 2000); Hardwick v. Dugger, 648 So.2d 100, 104 (Fla.1994); Groover v. State, 640 So.2d 1077, 1078-79 (Fla.1994).⁹ On the other hand, we have found a due process violation to exist when the defendant was not served with a copy of the State's proposed order or given an opportunity to file objections. See Huff v. State, 622 So.2d 982, 983 (Fla.1993)

; Rose v. State, 601 So.2d 1181, 1182 (Fla.1992).

In contrast to Rose and Huff, in this case the defense had the opportunity to present its own proposed order and to file objections to the State's proposed order. In addition, although the differences were not substantial, it does appear that the trial court made changes to the trial court's order, thus revealing that the trial court reviewed both orders and did not simply "rubber-stamp" the State's order. Most importantly, however, we find that the trial court's final order is supported by the testimony presented at the evidentiary hearing. See Patton, 25 Fla. L. Weekly at S750, at ___. Accordingly, we find no due process violation and no reversible error in this case as a result of the trial court's adoption of a substantial portion of the State's proposed order.¹⁰ See generally Glock v. Moore, 776 So.2d 243, 249 (Fla. 2001)

.

INEFFECTIVE ASSISTANCE OF COUNSEL

We next address Valle's claim that his counsel was ineffective for introducing "model prisoner" evidence pursuant to Skipper, which resulted in the State's introduction of prejudicial rebuttal evidence concerning Valle's misconduct in prison between 1981 and 1988. Valle asserts that his counsel introduced model prisoner evidence because they believed they were legally required to under this Court's remand, rather than as a matter of strategy. At the conclusion of the evidentiary hearing, however, the trial court ruled that Valle failed to establish ineffective assistance of counsel because he demonstrated neither deficient conduct nor prejudice as required under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In order to establish a claim of ineffective assistance of counsel, a defendant must prove 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. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Rutherford v. State, 727 So.2d 216, 219-20 (Fla.1998).

In evaluating whether an attorney's conduct is deficient, "there is `a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,'" and the defendant "bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." Brown v. State, 755 So.2d 616, 628 (Fla.2000) (quoting Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052). This Court has held that defense counsel's strategic choices do not constitute deficient conduct if alternative courses of action have been considered and rejected. See Shere v. State, ...