Wike v. State, SC00-2141.

• Decision Date: 24 January 2002
• Docket Number: No. SC00-2141.,SC00-2141.
• Citation: 813 So.2d 12
• Parties: Warfield Raymond WIKE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

813 So.2d 12

Warfield Raymond WIKE, Appellant, v. STATE of Florida, Appellee.

No. SC00-2141.

Supreme Court of Florida.

January 24, 2002.

Rehearing Denied March 15, 2002.

Baya Harrison, III, Monticello, FL, for Appellant.

Robert A. Butterworth, Attorney General, and Curtis M. French, Assistant Attorney General, Tallahassee, FL, for Appellee.

PER CURIAM.

Warfield Raymond Wike appeals an order of the circuit court denying a motion for 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 Wike postconviction relief.

Wike, who was thirty-two years old at the time of the offenses, was convicted of first-degree murder, two counts of kidnaping, sexual battery, and attempted murder. See Wike v. State, 596 So.2d 1020 (Fla. 1992)

. The facts of the crime are detailed in this Court's opinion on direct appeal.

The facts reflect that at approximately 6:30 a.m. on September 22, 1988, a couple found eight-year-old Sayeh Rivazfar alongside a rural road in Santa Rosa County. Sayeh was waving one hand and held the other to her throat. The couple noticed that Sayeh's throat was cut and immediately drove her to a store to call for help. During the drive, Sayeh told the couple that a man named "Ray" had taken her and her sister from their home and to the woods where he cut her throat and killed her six-year-old sister, Sarah. Later at the hospital, it was determined that Sayeh suffered a cut throat and two lacerations to her vagina which were consistent with forced penetration.

A search for Sarah Rivazfar began shortly after Sayeh was found. Sarah's body was found in the woods about seventy-five feet from the dirt road where Sayeh was picked up. Footprints were also found at the scene. Sarah's hands were tied behind her back and her throat had been cut. Crime scene technicians recovered several items of evidence from three separate locations near the area where the body was found. These included pieces of shirt material, tire tracks, and blood stains.

On the information investigators gathered from Sayeh and her mother, they determined that Wike was a suspect. Officers immediately went to the Wike residence. From neighbors they learned that an elderly couple, a thirty-year-old man, and a child lived in the house. They also learned that the elderly man was confined to a wheelchair. Parked in front of the house was an older model green Dodge automobile, with a dent on the side, which fit the description given by Sayeh and her mother as being Wike's car. A computer check revealed that the car was registered to a Raymond Wike. Although no one answered when an officer rang the front doorbell, another officer heard movement inside. The officers had the dispatcher call the house. A man named Ray answered. He was asked to come outside with his hands on his head. When he did, the officers arrested him on the spot. Then the officers conducted a sweep of the house to determine if there were other occupants. After the sweep, the officers obtained a search warrant and searched the house and the car and seized several items of evidence from each. The automobile was also seized.

. . . .

At trial, Patricia Rivazfar, the girls' mother, testified that she and her children had known Ray Wike for a little over a year. Evidence seized from Wike and his vehicle established that: Wike, being a type "A" secretor, could have contributed to the semen stains found on various items in the car; (2) semen stains from a type "A" secretor were found on the torn pink bathing suit found in the car; (3) a child's sock found on the car had type "O" bloodstains, matching Sayeh's type; (4) the car seat material had type "O" bloodstains, as did the underpants that Sayeh wore; and (5) other bloodstains matching Sarah's type "O" were found on the pine needles obtained from the scene where Sarah's body was located and also on clothing material, tennis shoes, and a blue blanket seized from the carport. Further DNA testing of the blue blanket identified the type "O" blood found as positively coming from Sayeh. Additionally, a hair expert testified that, from a piece of torn material found at the scene, she found two head hairs that were consistent with Wike's hair. She also testified that two pubic hairs consistent with Wike's were found, and that other head hairs were found consistent with the hair of Sarah and Sayeh. An examination of the clothing from Sarah revealed a pubic hair consistent with Wike's, and a head hair consistent with Wike's was found on both Sarah's and Sayeh's underpants.

Fingerprint evidence was presented that established two palm prints matching Sayeh's were found on the trunk of Wike's car. One of these prints was made in blood or a substance of a high protein content. Two palm prints matching Wike's were located on the edge of the trunk, and these prints were also made in a substance of high protein content. An expert in tire track comparisons testified that plaster casts and photographs of the tire tracks found at the scene matched the tires from Wike's car.

Sayeh testified that she and Sarah went to bed on September 22 around 8 p.m. She explained that they both wore their clothes to bed since they were sometimes late for the bus in the morning. She stated that she woke up in a car parked in front of her house and that she recognized the man's voice as her mother's friend Ray. Since she was not fully awake, she went back to sleep. Furthermore, she stated that the man put Sarah in the back seat of the car and, when she asked for her mother, Ray told her that her mother was coming. Sayeh remembered traveling on a paved road, which then turned into a dirt road. The child stated that, when they stopped, Wike raped her on the trunk of the car. Afterwards, they then got back into the car and proceeded to a different location, where they stopped again and walked in the woods. At that point, Ray pulled a knife with finger grips on it and told Sayeh to say a prayer and then cut her throat with the knife. She explained that Sarah was screaming and then Ray cut her throat and left.

Wike testified in his own defense and denied involvement in any of the crimes committed against the girls. Wike explained that somebody else could have used the car because he had been drinking and smoking marijuana that night. The jury found Wike guilty of all charges.

Id. at 1021-22.

After the penalty phase hearing, the jury recommended imposition of the death penalty by a vote of nine-to-three and the trial court imposed the death penalty. See id. at 1023. On appeal, this Court affirmed Wike's convictions, but remanded the case for a new penalty phase proceeding before a new jury, concluding that the trial court erred by denying Wike's motion to continue the penalty phase. See id. at 1025.

On remand, the jury unanimously recommended the death penalty, which the trial court subsequently imposed. See Wike v. State, 648 So.2d 683, 684 (Fla. 1994). This Court on appeal, however, reversed Wike's sentence and remanded the cause for resentencing because the trial court erroneously denied Wike his vested procedural right to conclude the closing arguments before the jury. See id. at 684.

In Wike's third sentencing proceeding, the jury again unanimously recommended that Wike be sentenced to death. See Wike v. State, 698 So.2d 817, 819 (Fla. 1997)

. The Court explained:

In following that recommendation, the trial judge found four aggravating circumstances: prior violent felonies (1974 robbery, and contemporaneous attempted murder, kidnaping, and sexual battery of Sayeh); committed to avoid arrest; heinous, atrocious, or cruel (HAC); and cold, calculated, and premeditated (CCP). Additionally, the judge gave little or no weight to the statutory mitigating circumstance of age (Wike was 32 at the time of the murder). He also considered a number of nonstatutory mitigating circumstances. [Note 1.]

[Note 1.] The nonstatutory mitigating circumstances considered by the trial judge are as follows: Troubled childhood (little weight), mental and emotional disturbance due to father's death and troubled life (little weight), history of alcohol and drug abuse (some weight), under the influence of drugs and alcohol at time of crime (little weight because not corroborated by witnesses who observed Wike just after the crime), gainfully employed (little weight), serving life for sexual battery of Sayeh and able to serve life for this crime (some weight), has behaved well in prison and not likely to be dangerous in the future (little or no weight), and Wike has maintained his innocence (little or no weight).

Id. at 819. This Court affirmed, see id. at 823, and the United States Supreme Court denied review. See Wike v. Florida, 522 U.S. 1058, 118 S.Ct. 714, 139 L.Ed.2d 655 (1998).

Wike thereafter filed a motion for postconviction relief, raising fifteen claims.¹ After a Huff² hearing, the trial court determined that the following six claims required an evidentiary hearing: (7) ineffectiveness of counsel in failing to achieve suppression of evidence; (8) ineffectiveness of counsel for failing to investigate witnesses and present alibi evidence; (9) ineffectiveness of counsel in failing to move for change of venue; (10) ineffectiveness of counsel for failure to ensure Wike's presence at all critical stages of trial; (11) ineffectiveness of counsel for failing to ensure Wike's presence at sidebar conferences; and (14) ineffectiveness of counsel at the third penalty phase. After the trial court conducted a hearing on these issues, the parties entered written post-hearing arguments. The trial court thereafter entered an order denying all of Wike's claims. Wike now appeals the trial court's denial of postconviction relief, raising five issues for this Court's review.

Ineffective Assistance of Counsel for Failing to File a Change of Venue Motion

Wike first contends that...