Vining v. State, SC99-67.

• Decision Date: 03 July 2002
• Docket Number: No. SC99-67.,SC99-67.
• Citation: 827 So.2d 201
• Parties: John Bruce VINING, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

827 So.2d 201

John Bruce VINING, Appellant, v. STATE of Florida, Appellee.

No. SC99-67.

Supreme Court of Florida.

July 3, 2002.

Rehearing Denied September 19, 2002.

Terri L. Backhus of Backhus & Izakowitz, P.A., Tampa, FL; and John Bruce Vining, pro se, Raiford, FL, for Appellant.

Robert A. Butterworth, Attorney General, and Robert J. Landry, Assistant Attorney General, Tampa, FL, for Appellee.

PER CURIAM.

John Bruce Vining appeals an order of the circuit court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Vining was convicted of first-degree murder and armed robbery in 1990. The pertinent facts of the crime are described in detail in this Court's opinion on Vining's direct appeal. See Vining v. State, 637 So.2d 921, 923-24 (Fla.1994)

. The judge followed the jury's recommendation and imposed a death sentence for the first-degree murder conviction. The judge also sentenced Vining as a habitual offender to life imprisonment on the armed robbery conviction. On appeal, this Court affirmed both the convictions and sentences. See id. at 928. Vining's petition for certiorari was denied by the United States Supreme Court. See Vining v. Florida, 513 U.S. 1022, 115 S.Ct. 589, 130 L.Ed.2d 502 (1994).

Vining filed his original motion for post-conviction relief in March 1996, pursuant to an extension granted by this Court. He amended the motion in December 1996, raising a total of twenty-five claims. Based upon the claim that the judge who presided over Vining's trial and sentencing conducted an independent investigation and considered extra-record materials not presented in open court, the judge disqualified himself and a new judge presided over Vining's postconviction motion. A Huff¹ hearing was held in June 1997 and the court conducted an evidentiary hearing in April 1999 on Vining's claims of Brady² violations and ineffective assistance of trial counsel based upon the trial judge's independent investigation and consideration of extra-record materials. Following this evidentiary hearing, the postconviction court denied relief on all of Vining's postconviction claims in a detailed twenty-nine page order.

On appeal to this Court, Vining raises fourteen claims, including a number of subclaims. Vining claims that (1) the lower court failed to properly consider the evidence withheld by the State as being material evidence under Brady; (2) he was denied the effective assistance of counsel and a fair and impartial tribunal because the trial judge utilized extra-record information in violation of Gardner v. Florida;³ (3) the lower court should have conducted an evidentiary hearing on his claims of newly discovered evidence and ineffective assistance of counsel during the guilt phase proceedings; (4) trial counsel failed to adequately investigate and present mitigating evidence and to adequately challenge the State's case during the penalty phase proceedings; (5) trial counsel failed to object to a number of constitutional errors; (6) the one-year time limit imposed by Florida Rule of Criminal Procedure 3.851 is unconstitutional on its face and as applied because it denies capital defendants due process and equal protection; (7) Florida's death penalty is unconstitutional; (8) insufficient aggravating circumstances render him ineligible for the death penalty; (9) Rule Regulating the Florida Bar 4-3.5(d)(4), which prohibits an attorney from initiating communication with a juror regarding the trial, improperly restricted his ability to discover information that would warrant a new trial; (10) the appellate transcript is unreliable because substantial proceedings were made off the record, including portions of voir dire and the penalty phase and the entire sentencing proceeding, and counsel was ineffective for failing to raise this issue on appeal; (11) he was involuntarily absent during critical stages of the trial proceedings; (12) prosecutorial misconduct relating to evidence of collateral crimes presented during the penalty phase caused prejudice that resulted in a fundamentally unfair proceeding; (13) he was denied a full and fair evidentiary hearing on his public records claim; and (14) the cumulative errors in his trial, sentencing, and direct appeal deprived him of the effective assistance of counsel, the right to counsel, a fundamentally fair trial, due process of law, and individualized sentencing.

In claim one Vining contends that the lower court failed to properly consider several items of evidence withheld by the State as being material evidence of his innocence, which constituted Brady violations. The lower court conducted an evidentiary hearing on this claim and heard testimony from several witnesses including police detectives who investigated the crime and both of Vining's trial counsel. The court determined that the defense already possessed one of the items alleged to have been withheld.⁴ As to the items that had not been disclosed,⁵ the court determined that this evidence was not material and no prejudice ensued from its nondisclosure.

A defendant must demonstrate the following elements before a Brady violation has been proven: (1) the evidence at issue is favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the evidence has been suppressed by the State, either wilfully or inadvertently; and (3) the defendant has been prejudiced by the suppression of this evidence. See Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)

; Way v. State, 760 So.2d 903, 910 (Fla.2000),

cert. denied, 531 U.S. 1155, 121 S.Ct. 1104, 148 L.Ed.2d 975 (2001); Thompson v. State, 759 So.2d 650, 662 (Fla.2000). A defendant is prejudiced by the suppression of exculpatory evidence if it is material, in other words if "there is a reasonable probability that the result of the trial would have been different if the suppressed documents had been disclosed to the defense." Strickler, 527 U.S. at 289,

119 S.Ct. 1936.

In the instant case, the lower court concluded that no prejudice occurred from the withheld items because Vining did not show any inconsistencies between the items and the trial testimony nor did he show how the items could have been used to impeach the witnesses. Further, the court determined that the evidence was not material under Brady as Vining had not shown that there is a reasonable probability that his conviction or sentence would be different. After reviewing the record and the order below, we agree with the postconviction court's conclusion that Vining failed to show the prejudice and materiality required for a Brady violation. Thus, we affirm the denial of relief on this claim.

As his second claim on appeal, Vining contends that he was denied effective assistance of counsel and a fair and impartial sentencing proceeding because the judge who presided over his trial and sentencing relied upon extra-record information in violation of Gardner v. Florida and that trial counsel's failure to object to this information constituted ineffective assistance of counsel. On direct appeal, Vining raised a Gardner claim, arguing that he had been denied due process, the right to confront witnesses, and the effective assistance of counsel by the trial judge's consideration of extra-record evidence. Specifically, he claimed that the trial judge read all of the depositions in the court file, read the medical examiner's report and discussed it with the medical examiner, obtained and reviewed the probate records of the victim's estate to compare the claims filed against the estate with the testimony at trial regarding the items consigned to the victim, and conducted an independent investigation at various locations relating to the victim. This Court concluded that the issue was waived for purposes of appellate review because defense counsel never objected to the court's consideration of this material even though the trial judge clearly informed counsel that he had reviewed these materials. See Vining, 637 So.2d at 927

.

Under Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), a sentencing judge who intends to use any information not presented in open court as a factual basis for a sentence must advise the defendant of what the information is and afford the defendant an opportunity to rebut it. See also Porter v. State, 400 So.2d 5, 7 (Fla.1981)

(vacating death sentence where trial court relied on deposition testimony to support two aggravating factors without advising defendant of intention to use the deposition and affording defendant opportunity to rebut, contradict, or impeach the deposition testimony). However, even where a Gardner violation occurs, this Court may conclude that such error is harmless. See Consalvo v. State, 697 So.2d 805, 818 (Fla.1996) (finding that court erred in referring to out-of-court deposition testimony, but error was harmless because court did not actually rely on any information that was not otherwise proven during trial); Lockhart v. State, 655 So.2d 69, 73-74 (Fla.1995) (finding that Gardner violation occurred when trial court relied on information from newspaper articles not presented in open court to support its finding of no mitigation, but that error "did not injuriously affect [the defendant's] substantial rights" and that the defendant could not claim that such information was confidential when the articles were based on interviews that the defendant gave). This Court specifically distinguished the harmless error in Consalvo from the reversible error in Porter because the Consalvo trial court "made reference to facts which were established at trial by evidence other than that referred to in the sentencing order." Consalvo, 697 So.2d at 817.

In the instant case, while the sentencing order did state that the judge read all of the depositions, read the medical examiner's report, and checked the...