Whitfield v. State, SC04-651.

• Decision Date: 03 November 2005
• Docket Number: No. SC04-651.,SC04-651.
• Citation: 923 So.2d 375
• Parties: Ernest WHITFIELD, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

923 So.2d 375

Ernest WHITFIELD, Appellant, v. STATE of Florida, Appellee.

No. SC04-651.

Supreme Court of Florida.

November 3, 2005.

Rehearing Denied February 17, 2006.

COPYRIGHT MATERIAL OMITTED

John W. Jennings, Capital Collateral Regional Counsel — Middle Region and Peter J. Cannon, Assistant Capital Collateral Counsel — Middle Region, Tampa, FL, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Katherine V. Blanco, Assistant Attorney General, Tampa, FL, for Appellee.

PER CURIAM.

Ernest Whitfield was convicted of first-degree murder and sentenced to death. We affirmed his conviction. See Whitfield v. State, 706 So.2d 1, 2-3 (Fla.1997). He now appeals an order of the circuit court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons discussed below, we affirm the circuit court's order denying the motion on all issues.

I. FACTS

In early June 1995, Whitfield visited the home of Clarentha Reynolds to seek money from Reynolds, Willie Mae Brooks, and Estella Pierre.¹ Pierre and Whitfield had previously dated. When they refused, Whitfield attempted to take Pierre's purse. Reynolds, however, grabbed him in a headlock and forcibly ejected him. Before leaving, Whitfield threatened, "I'm going to kill all three of you bitches."

Whitfield again visited the home in the predawn hours of June 19, weeks after making the threat. He asked Brooks to let him enter but she refused and returned to bed. A short time later Whitfield forcibly entered the home, armed himself with an eight-inch kitchen knife, and proceeded to the room where Brooks slept beside her infant son. Whitfield raped Brooks and threatened to kill her and her son if she screamed. He then proceeded to Reynolds's room, where she slept with her five children. About ten minutes later, Reynolds, bloodied and near death, stumbled into Brooks's room. A medical examiner would later testify that she had been stabbed twenty-one times, many of the wounds penetrating her flesh up to seven inches. She told Brooks that Whitfield had stabbed her. Brooks and Reynolds's twelve-year-old son escaped through a window and ran for help. Whitfield fled. Shortly after the police arrived, Reynolds died.

Whitfield was apprehended later that day. He admitted the stabbing and led police to the murder weapon. He also told them that he had been high on crack cocaine at the time of the crime.

At trial, Whitfield presented a defense of voluntary intoxication by crack cocaine. His expert witness, a clinical psychologist named Dr. Regnier, testified that Whitfield exhibited classic symptoms of cocaine abuse and opined that there was reasonable doubt of premeditation. The State's expert testified in rebuttal that Whitfield had the capacity to form specific intent at the time of the crime, and cited the fact that Whitfield was arrested within two hours of the murder and did not appear intoxicated. The expert also opined that the manner in which the crime was committed showed planning ability.

The jury convicted Whitfield of armed burglary, sexual battery with a deadly weapon, and first-degree murder. At the penalty phase, Whitfield presented evidence through Dr. Regnier of his impoverished background and deprived childhood as well as his severe drug dependence and his intoxication at the time of the crime. The State presented evidence of Whitfield's prior violent crimes. The jury recommended the death penalty. The trial judge followed the recommendation, finding three aggravators: "prior violent felonies (two prior aggravated batteries and contemporaneous sexual battery of another victim in this case); commission in the course of a burglary; and that the murder was heinous, atrocious, or cruel." Whitfield, 706 So.2d at 3.

On appeal of the conviction and sentence, Whitfield raised five issues.² This Court found no merit to any of them and affirmed his convictions.

In May 2002, Whitfield filed his amended 3.850 motion, raising twenty-one claims. In a thorough sixty-page order, the circuit court denied relief on all of them. Whitfield now raises six issues: (1) ineffective assistance of counsel in the guilt phase for failing to adequately investigate and present a voluntary intoxication defense to the offenses of first-degree murder, burglary, and armed sexual battery and for failing to hire a defense expert in the field of toxicology; (2) ineffective assistance of counsel at the guilt phase for failing to adequately investigate, prepare, and present the defense case as a result of the speedy trial requirements set forth in Florida Rule of Criminal Procedure 3.191; (3) ineffective assistance of counsel for failing to adequately investigate and present Whitfield's case at the penalty phase by not discovering and presenting additional witnesses; (4) ineffective assistance of counsel at the penalty phase for failing to request a jury instruction pursuant to Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994); (5) ineffective assistance at the penalty phase for failing to object to the prosecution's presentation of nonstatutory aggravators in the form of statements to the jury that Whitfield's prior crimes all involved female victims and were committed in the presence of children; and (6) violations of Whitfield's rights under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), by failing to obtain an adequate mental health examination and failing to provide necessary information to the mental health expert.

II. ANALYSIS

Whitfield presents six issues on appeal. We discuss at length only the first three. As to issues four and five, we summarily affirm because Whitfield presents merely conclusory arguments. See Cooper v. State, 856 So.2d 969, 977 n. 7 (Fla.2003) (rejecting the argument that the "lower court erred in its summary denial of these claims," and finding such "speculative, unsupported argument of this type to be improper"); see also Randolph v. State, 853 So.2d 1051, 1063 n. 12 (Fla.2003) ("[T]he purpose of an appellate brief is to present arguments in support of the points on appeal. Merely making reference to arguments below without further elucidation does not suffice to preserve issues.") (quoting Duest v. Dugger, 555 So.2d 849, 852 (Fla.1990)); LeCroy v. Dugger, 727 So.2d 236, 240 (Fla.1998) (upholding the summary denial of a postconviction motion because the defense alleged no facts to substantiate its conclusory claims of ineffective assistance of counsel). As to issue six, we also affirm because, insofar as it states a proper Ake claim, it should have been raised on direct appeal. See Marshall v. State, 854 So.2d 1235, 1248 (Fla. 2003) (holding an Ake claim contained within an ineffective assistance of counsel claim "procedurally barred because it could have been raised on direct appeal"); Moore v. State, 820 So.2d 199, 203 n. 4 (finding Ake claim procedurally barred because it could have been raised on direct appeal); Cherry v. State, 781 So.2d 1040, 1047 (Fla.2000) ("[T]he claim of incompetent mental health evaluation is procedurally barred for failure to raise it on direct appeal."). Insofar as it alleges ineffective assistance of counsel for failing to pursue an Ake claim, Whitfield has failed to show either deficient performance or prejudice.

We discuss below Whitfield's arguments on issues one through three, all of which assert, on different theories, that trial counsel provided ineffective assistance. Ineffective assistance of counsel claims are judged under the following standard:

An ineffective assistance claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense. To establish deficient performance, a petitioner must demonstrate that counsel's representation "fell below an objective standard of reasonableness."

Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citation omitted) (quoting Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The prejudice prong of the analysis "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." 466 U.S. at 687, 104 S.Ct. 2052. Accordingly, in order to succeed on his claims, Whitfield must establish both deficient performance and prejudice.

We begin by examining Whitfield's claim that trial counsel were ineffective for failing to properly present his defense of voluntary intoxication. Next we consider Whitfield's claim that counsel were ineffective for proceeding with speedy trial. Finally, we consider Whitfield's claim that counsel should have called additional witnesses at the penalty phase.

A. Voluntary Intoxication

Whitfield first claims that trial counsel were ineffective for failing to adequately present a voluntary intoxication defense to first-degree murder, burglary, and armed sexual battery. The defense of voluntary intoxication is only valid for specific intent crimes such as first-degree murder and armed burglary. See Straitwell v. State, 834 So.2d 918, 920 (Fla. 2d DCA 2003) (noting that "[v]oluntary intoxication is a defense to specific intent crimes such as burglary and petit theft"); Carter v. State, 801 So.2d 113, 114 (Fla. 2d DCA 2001) (recognizing voluntary intoxication as a defense to specific intent crimes). The defense is not available for general intent crimes. See Straitwell, 834 So.2d at 920 ("[Voluntary intoxication] is not a defense to general intent crimes such as sexual battery."); Bland v. State, 563 So.2d 794, 795 (Fla. 1st DCA 1990) (recognizing attempted sexual battery as a general intent crime for which the defense of voluntary intoxication is not available). Therefore, the circuit court properly rejected Whitfield's claim of ineffective assistance of counsel for failing to properly present the...