Trice v. Department of Corrections, State of Florida
Filing
31
ORDER denying Charles Trice's application for the writ of habeas corpus; denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the clerk to ENTER A JUDGMENT against Charles Trice, to TERMINATE any pending motion and deadline, and to CLOSE the case. Signed by Judge Steven D. Merryday on 9/7/2017. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHARLES TRICE,
Applicant,
v.
CASE NO. 8:11-cv-1453-T-26AEP
SECRETARY, Department of Corrections,
Respondent.
/
ORDER
Charles Trice applies (Doc. 1) under 28 U.S.C. § 2254 for the writ of habeas
corpus and challenges his convictions for first degree murder, violation of a domestic
violence injunction, and burglary of a dwelling with assault, for which convictions
Trice is imprisoned for life. The respondent moved to dismiss the application as
time-barred, which motion was denied because Trice’s post-conviction counsel’s
misconduct allowed for equitable tolling under Holland v. Florida, 560 U.S. 631
(2010). The respondent filed her response in opposition to the application, which
response is supported by seven exhibits (“Exhibit 1-7”). (Doc. 9) The respondent
argues (1) that Grounds Two, Three, and Four are not fully exhausted because Trice
failed to fairly present the constitutional dimension of these claims to the appellate
court and (2) that these unexhausted grounds are procedurally barred from federal
review. Trice replies. (Doc. 14) The application is fully briefed and ripe for a
decision.
BACKGROUND
Trice was convicted for killing his estranged wife at their marital residence.
The couple was separated and Trice was no longer living at the residence at the time
of the shooting. However, Trice had access to an office that was attached to the back
of the house. The office was accessible through an exterior door that allowed Trice
to enter his office without entering the rest of the residence. A domestic violence
injunction barred Trice from entering the rest of the residence but allowed him to
access the office through the exterior door. Trice was a trooper with the Florida
Highway Patrol and kept tools and paperwork for his job in the office. A door
connected the office and the rest of the residence; however, that door could be locked
from both the residence and the office.
On the day of the shooting Trice visited the residence on two occasions. On
the first visit Trice brought the couple’s daughter back to the residence after she had
spent the day with him. Trice returned a second time later that day and entered the
residence through the garage door in violation of the domestic injunction violation.
The prosecution used this trespass to charge Trice with felony-murder and burglary
with assault.
During the second visit Trice and the victim argued in his office over who
would possess the couple’s Corvette. The sports car had been a source of several
altercations between Trice and the victim. During the altercation Trice shot and
killed the victim. After emergency personnel arrived at the scene, Trice was taken to
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a hospital and treated for a stab wound to his shoulder. Sgt. Ken Lane, a Florida
Highway Patrol Trooper (“Trooper Lane”) accompanied Trice to the hospital.
Trooper Lane returned the next day and accompanied Trice back to the
residence. Trooper Lane was not conducting an investigation of the shooting but
testified that he accompanied Trice as his friend. While at the residence, Trice
detailed to Trooper Lane what happened during the shooting. Trice told Trooper
Lane that he and the victim were arguing. Trice stated that he was kneeling with his
back to the victim retrieving some equipment from the office closet. When he turned
around, the victim stabbed him in the shoulder with a paring knife. Trice stated that
he was in shock and feared for his life. Trice grabbed his .357 revolver from a shelf
and shot the victim at point-blank range. Trice entered the residence, called 911, and
took his young daughter to her room.
After hearing Trice’s explanation of the shooting, Trooper Lane told him
his story was not supported by the blood splatter, the body tissue residue, and the
hole-in-the wall created when the slug exited the victim’s body. Trooper Lane further
noted that — based on the marks in the carpet — the furniture apparently had been
rearranged in the office to support Trice’s explanation. Maintaining that he acted in
self-defense, Trice persisted in this explanation through the trial and the appeal. The
forensic evidence supported the prosecutor’s theory that Trice stabbed himself with
the small paring knife after he shot and killed the victim.
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STANDARD OF REVIEW
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
governs this application. Wilcox v. Florida Dep’t of Corr., 158 F.3d 1209, 1210 (11th
Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly
deferential standard for federal court review of a state court adjudication, states in
pertinent part:
An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim —
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.
In Williams v. Taylor, 529 U.S. 362, 412S13 (2000), the Supreme Court
interpreted this deferential standard:
In sum, § 2254(d)(1) places a new constraint on the power of a
federal habeas court to grant a state prisoner’s application for a
writ of habeas corpus with respect to claims adjudicated on the
merits in state court. Under § 2254(d)(1), the writ may issue
only if one of the following two conditions is satisfied — the
state-court adjudication resulted in a decision that (1) “was
contrary to . . . clearly established Federal Law, as determined
by the Supreme Court of the United States” or (2) “involved an
unreasonable application of . . . clearly established Federal law,
as determined by the Supreme Court of the United States.”
Under the “contrary to” clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion opposite
to that reached by this Court on a question of law or if the state
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court decides a case differently than this Court has on a set of
materially indistinguishable facts. Under the “unreasonable
application” clause, a federal habeas court may grant the writ if
the state court identifies the correct governing legal principle
from this Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
“The focus . . . is on whether the state court’s application of clearly established
federal law is objectively unreasonable, . . . an unreasonable application is different
from an incorrect one.” Bell v. Cone, 535 U.S. 685, 693 (2002). “As a condition for
obtaining habeas corpus from a federal court, a state prisoner must show that the
state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Harrington v. Richter,
131 S. Ct. 770, 786S87 (2011). Accord Brown v. Head, 272 F.3d 1308, 1313 (11th Cir.
2001) (“It is the objective reasonableness, not the correctness per se, of the state court
decision that we are to decide.”). The phrase “clearly established Federal law”
encompasses only the holdings of the United States Supreme Court “as of the time of
the relevant state-court decision.” Williams v. Taylor, 529 U.S. at 412.
The purpose of federal review is not to re-try the state case. “The [AEDPA]
modified a federal habeas court’s role in reviewing state prisoner applications in
order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are
given effect to the extent possible under law.” Bell v. Cone, 535 U.S. at 694. A federal
court must afford due deference to a state court’s decision. “AEDPA prevents
defendants — and federal courts — from using federal habeas corpus review as a
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vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett,
559 U.S. 766, 779 (2010). See also Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011)
(“This is a ‘difficult to meet,’ . . . and ‘highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the benefit of
the doubt’ . . . .”) (citations omitted).
In a per curiam decision without a written opinion, the state appellate court
on direct appeal affirmed Trice’s convictions and sentence. (Respondent’s Exhibit 2)
Similarly, in another per curiam decision without a written opinion, the state appellate
court affirmed the denial of Trice’s subsequent Rule 3.850 motion to vacate.
(Respondent’s Exhibit 6) The state appellate court’s per curiam affirmances warrant
deference under Section 2254(d)(1) because “the summary nature of a state court’s
decision does not lessen the deference that it is due.” Wright v. Moore, 278 F.3d 1245,
1254 (11th Cir.), reh’g and reh’g en banc denied, 278 F.3d 1245 (2002), cert. denied sub
nom Wright v. Crosby, 538 U.S. 906 (2003). See also Richter, 131 S. Ct. at 784S85
(“When a federal claim has been presented to a state court and the state court has
denied relief, it may be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law procedural principles to the
contrary.”), and Bishop v. Warden, 726 F. 3d 1243, 1255S56 (11th Cir. 2013)
(describing the difference between an “opinion” or “analysis” and a “decision” or
“ruling” and explaining that deference is accorded the state court’s “decision” or
“ruling” even if there is no “opinion” or “analysis”).
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As Pinholster, 131 S. Ct. at 1398, explains, review of the state court decision is
limited to the record that was before the state court:
We now hold that review under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the claim
on the merits. Section 2254(d)(1) refers, in the past tense, to a
state-court adjudication that “resulted in” a decision that was
contrary to, or “involved” an unreasonable application of,
established law. This backward-looking language requires an
examination of the state-court decision at the time it was made.
It follows that the record under review is limited to the record
in existence at that same time, i.e., the record before the state
court.
Trice bears the burden of overcoming by clear and convincing evidence a state
court factual determination. “[A] determination of a factual issue made by a
State court shall be presumed to be correct. The applicant shall have the burden
of rebutting the presumption of correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact
but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836
(11th Cir.), cert. denied, 534 U.S. 1046 (2001). The state court’s rejection of Trice’s
post-conviction claims warrants deference in this case. (Order Denying Motion for
Post-Conviction Relief, Respondent’s Exhibit 7)
EXHAUSTION AND PROCEDURAL DEFAULT
An applicant must present each claim to a state court before raising the claim
in federal court. “[E]xhaustion of state remedies requires that petitioners ‘fairly
presen[t]’ federal claims to the state courts in order to give the State the ‘opportunity
to pass upon and correct’ alleged violations of its prisoners’ federal rights.” Duncan v.
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Henry, 513 U.S. 364, 365 (1995), Picard v. Connor, 404 U.S. 270, 275 (1971). Accord
Rose v. Lundy, 455 U.S. 509, 518S19 (1982) (“A rigorously enforced total exhaustion
rule will encourage state prisoners to seek full relief first from the state courts, thus
giving those courts the first opportunity to review all claims of constitutional error.”),
and Upshaw v. Singletary, 70 F.3d 576, 578 (11th Cir. 1995) (“[T]he applicant must
have fairly apprised the highest court of his state with the appropriate jurisdiction
of the federal rights which allegedly were violated.”). Also, a petitioner must present
to the federal court the same claim presented to the state court. Picard v. Connor,
404 U.S. at 275 (“[W]e have required a state prisoner to present the state courts with
the same claim he urges upon the federal courts.”). “Mere similarity of claims is
insufficient to exhaust.” Duncan v. Henry, 513 U.S. at 366.
An applicant must alert the state court that he is raising a federal claim and
not only a state law claim:
A litigant wishing to raise a federal issue can easily indicate the
federal law basis for his claim in a state-court petition or brief,
for example, by citing in conjunction with the claim the federal
source of law on which he relies or a case deciding such a claim
on federal grounds, or by simply labeling the claim “federal.”
Baldwin v. Reese, 541 U.S. 27, 32 (2004). As a consequence, “[i]t is not enough that
all the facts necessary to support the federal claim were before the state courts, or that
a somewhat similar state-law claim was made.” Anderson v. Harless, 459 U.S. 4, 6
(1982). See also Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1271, 1345 (11th Cir. 2004)
(“The exhaustion doctrine requires a habeas applicant to do more than scatter some
makeshift needles in the haystack of the state court record.”) (citations omitted).
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Finally, presenting a federal claim to a state court without the facts necessary
to support the claim is insufficient. See, e.g., Brown v. Estelle, 701 F.2d 494, 495 (5th
Cir. 1983) (“The exhaustion requirement is not satisfied if a petitioner presents new
legal theories or entirely new factual claims in support of the writ before the federal
court.”). Specifically based on Trice’s failure to exhaust, the respondent opposes
Grounds Two, Three, and Four.1
The respondent argues (1) that on direct appeal Trice summarily briefed
the constitutional claims alleged in Grounds Two, Three, and Four but without
explaining the manner in which those rights were violated and (2) that Trice’s
summary constitutional claims in the state court were inadequate to alert the trial
court to the specific constitutional violation alleged. Although the respondent is
correct that a federal applicant for the writ of habeas corpus must first exhaust the
claim in the state court, the respondent’s suggestion — as the respondent calls his
argument — is not well taken. Although Trice’s claims on direct appeal may have
lacked the exactness that respondent claims is necessary, the presentation alerted the
state court that Trice asserted a constitutional claim. Therefore, the grounds warrant
a review on the merits.
The exhaustion requirement precludes relief based on an unexhausted claim unless the
respondent specifically waives the procedural default. “[B]ecause the State did not expressly waive
McNair’s procedural default in this case, we hold that § 2254(b)(3)[’s proscription that the state must
expressly waive the exhaustion requirement] applies and that McNair is procedurally barred from
raising his extraneous evidence claim.” McNair v. Campbell, 416 F.3d 1291, 1305 (11th Cir. 2005),
cert. denied, 547 U.S. 1073 (2006).
1
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INEFFECTIVE ASSISTANCE OF COUNSEL
Trice claims ineffective assistance of counsel, a difficult claim to sustain.
“[T]he cases in which habeas petitioners can properly prevail on the ground of
ineffective assistance of counsel are few and far between.” Waters v. Thomas,
46 F.3d 1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386
(11th Cir. 1994)). Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998), explains
that Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective assistance of
counsel claim:
The law regarding ineffective assistance of counsel claims is
well settled and well documented. In Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the
Supreme Court set forth a two-part test for analyzing ineffective
assistance of counsel claims. According to Strickland, 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. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.
Strickland requires proof of both deficient performance and consequent
prejudice. Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an
ineffective assistance claim . . . to address both components of the inquiry if the
defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When
applying Strickland, we are free to dispose of ineffectiveness claims on either of its
two grounds.”). “[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
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professional judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct
on the facts of the particular case, viewed as of the time of counsel’s conduct.”
466 U.S. at 690. Strickland requires that “in light of all the circumstances, the
identified acts or omissions were outside the wide range of professionally competent
assistance.” 466 U.S. at 690.
Trice must demonstrate that counsel’s alleged error prejudiced the defense
because “[a]n error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no effect
on the judgment.” 466 U.S. at 691S92. To meet this burden, Trice must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” 466 U.S. at 694.
Strickland cautions that “strategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations on
investigation.” 466 U.S. at 690S91. Trice cannot meet his burden merely by
showing that the avenue chosen by counsel proved unsuccessful.
The test has nothing to do with what the best lawyers would
have done. Nor is the test even what most good lawyers would
have done. We ask only whether some reasonable lawyer at the
trial could have acted, in the circumstances, as defense counsel
acted at trial . . . . We are not interested in grading lawyers’
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performances; we are interested in whether the adversarial
process at trial, in fact, worked adequately.
White v. Singletary, 972 F.2d 1218, 1220S21 (11th Cir. 1992). Accord Chandler v.
United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial
lawyers, in every case, could have done something more or something different.
So, omissions are inevitable . . . . [T]he issue is not what is possible or ‘what is
prudent or appropriate, but only what is constitutionally compelled.’”) (en banc)
(quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). The required extent of counsel’s
investigation was addressed recently in Hittson v. GDCP Warden, 759 F.3d 1210, 1267
(11th Cir. 2014), cert. denied sub nom., Hittson v. Chatman, 135 S. Ct. 2126 (2015):
[W]e have explained that “no absolute duty exists to
investigate particular facts or a certain line of defense.”
Chandler, 218 F.3d at 1317. “[C]ounsel has a duty to
make reasonable investigations or make a reasonable decision
that makes particular investigations unnecessary.” Strickland,
466 U.S. at 691, 104 S. Ct. at 2066 (emphasis added).
“[C]ounsel need not always investigate before pursuing or not
pursuing a line of defense. Investigation (even a nonexhaustive,
preliminary investigation) is not required for counsel reasonably
to decline to investigate a line of defense thoroughly.” Chandler,
218 F.3d at 1318. “In assessing the reasonableness of an
attorney’s investigation . . . a court must consider not only the
quantum of evidence already known to counsel, but also
whether the known evidence would lead a reasonable attorney
to investigate further.” Wiggins, 539 U.S. at 527, 123 S. Ct. at
2538.
See also Jones v. Barnes, 463 U.S. 745, 751 (1983) (confirming that counsel has no duty
to raise a frivolous claim).
Under 28 U.S.C. § 2254(d), Trice must prove that the state court’s decision
was “(1) . . . contrary to, or involved an unreasonable application of, clearly
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established Federal law, as determined by the Supreme Court of the United States
or (2) . . . based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” Sustaining a claim of ineffective
assistance of counsel is very difficult because “[t]he standards created by Strickland
and § 2254(d) are both ‘highly deferential,’ and when the two apply in tandem,
review is ‘doubly’ so.” Richter, 131 S. Ct. at 788. See also Pinholster, 131 S. Ct. at
1410 (An applicant must overcome this “‘doubly deferential’ standard of Strickland
and the AEDPA.”), Johnson v. Sec’y, Dep’t of Corr., 643 F.3d 907, 911 (11th Cir. 2011)
(“Double deference is doubly difficult for a petitioner to overcome, and it will be a
rare case in which an ineffective assistance of counsel claim that was denied on the
merits in state court is found to merit relief in a federal habeas proceeding.”), and
Pooler v. Sec’y, Dep’t of Corr., 702 F.3d 1252, 1270 (11th Cir. 2012) (“Because we must
view Pooler’s ineffective counsel claim — which is governed by the deferential
Strickland test — through the lens of AEDPA deference, the resulting standard of
review is “doubly deferential.”), cert. denied, 134 S. Ct. 191 (2013).
The state court conducted an evidentiary hearing and denied the claims of
ineffective assistance of counsel with the following introduction: “When ineffective
assistance of counsel is alleged, the burden is on the person seeking collateral relief
to allege the grounds for relief specifically, and to establish whether the grounds for
relief resulted in prejudice.” (Respondent’s Exhibit 5C at 424) Effective assistance
of counsel does not mean that a defendant must be afforded errorless counsel or that
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future developments in law must be anticipated. See Meeks v. State, 382 So. 2d 673
(Fla. 1980). The state post-conviction court determined that Trice failed to meet his
burden under Strickland. (Respondent’s Exhibit 5C at 424) Because the state court
correctly recognized that Strickland governs each claim of ineffective assistance of
counsel, Trice cannot meet the “contrary to” test in Section 2254(d)(1). Trice
instead must show that the state court unreasonably applied Strickland or
unreasonably determined the facts. In determining “reasonableness,” a federal
application for the writ of habeas corpus authorizes determining only “whether the
state habeas court was objectively reasonable in its Strickland inquiry,” not an
independent assessment of whether counsel’s actions were reasonable. Putnam v.
Head, 268 F.3d 1223, 1244, n.17 (11th Cir. 2001), cert. denied, 537 U.S. 870 (2002).
The presumption of correctness and the highly deferential standard of review requires
that the analysis of each claim begin with the state court’s analysis.
DISCUSSION
Trice alleges five grounds of trial court error and eight grounds of ineffective
assistance of counsel: that the trial court erred by denying his motion for judgment
of acquittal (Ground One); that in this “self-defense case” the trial court erred by
allowing unreliable hearsay to establish the victim’s state of mind (Ground Two);
that the trial court erred by refusing to allow Trice to present evidence that, even in
the absence of an immediate threat, a battered spouse can become an aggressor
(Ground Three); that the trial court erred by allowing a non-expert witness to
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opine on the ultimate issue of fact and to usurp the function of the jury (Ground
Four); that trial counsel failed to adequately investigate Trice’s locked-door defense
(Ground Five); that trial counsel failed to call a witness who would have supported
an argument that Trice and the victim were friendly before the shooting (Ground
Six); that trial counsel failed to call a witness to explain the effect of shock on
Trice’s demeanor (Ground Seven); that trial counsel misadvised Trice about the
admissibility of Trice’s record as a law enforcement officer (Ground Eight); that trial
counsel failed to recuse the trial judge (Ground Nine); that trial counsel failed to
object to Trooper Lane’s testimony or to present an expert to rebut Lane’s testimony
about blood splatter and ballistics (Ground Ten); that trial counsel failed to move for
a change of venue (Ground Eleven); that trial counsel failed to preserve specific
issues for appeal (Ground Twelve); and that the trial court improperly denied Trice’s
motion for post-conviction relief based on the denial of a change in the law (Ground
Thirteen).
Ground One:
Trice argues that his conviction is erroneous because the jury returned a
general verdict. At trial the prosecution argued that Trice was guilty on one of two
alternative theories: premeditated first degree murder or felony-murder. The trial
judge instructed the jury under both theories. The jury returned a verdict of guilty
without specifying which theory supports the conviction. Trice unsuccessfully
moved for a judgment of acquittal. Trice argues that insufficient evidence supported
a charge of first degree murder because all of the evidence against him was
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circumstantial. Trice argues that the trial court’s denying his motion for judgment of
acquittal violated his constitutional rights under both the Due Process Clause and the
Equal Protection Clause.
A general verdict supports a conviction even though the evidence is
insufficient to support a conviction on one charged count if the evidence supports a
conviction on another charged count. Clark v. Crosby, 335 F. 3d 1303, 1309 (11th Cir.
2003) (quoting Griffin v. United States, 502 U.S. 46, 43 (1991)). Sufficient evidence
was presented at Trice’s trial to support the general verdict. A few days before the
murder Trice admitted that “maybe he ought kill his wife,” and on the day of the
murder he twice visited his estranged wife’s residence. The first visit was to return
his daughter. On the second visit Trice was seen entering the residence through the
garage — an unlawful entry that supports Trice’s convictions both for violating a
domestic violence injunction and for burglary with assault. The felony-murder
conviction was based on the burglary with assault. Under Clark, sufficient evidence
supports the prosecution’s felony-murder theory. The trial court’s denying Trice’s
motion for a judgment of acquittal violated no constitutional right. Accordingly,
Trice is entitled to no habeas relief on Ground One.
Ground Two:
Trice argues that the trial court erred by allowing hearsay to establish the
victim’s state of mind. The respondent argues that the trial court allowed the hearsay
because the victim’s state of mind was relevant to rebut Trice’s self-defense claim.
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The trial court allowed the testimony of thirteen witnesses who testified
about the victim’s fear of Trice. (Respondent’s Exhibit 2 at 14) The challenged
statements were admitted to show the victim’s state of mind, specifically, her fear
of Trice. The trial court specially instructed the jury that the statements were not
evidence of any act by Trice or evidence of Trice’s state of mind. The state appellate
court affirmed the trial court’s decision and found that under Florida law the victim’s
hearsay statements demonstrate the victim’s fear of the defendant and that the
statements are admissible to rebut the defendant’s asserted self-defense. See Peterka v.
State, 640 So. 2d 59 (Fla. 1994).
From the moment he called 911 to report the shooting, Trice began claiming
that he acted in self-defense. Trice told Trooper Lane, who visited the crime scene
with Trice, that the victim attacked him with a knife and that the only choice he
had was to shoot the victim to defend his own life. Trice testified at trial that he
acted in self-defense because the victim attacked him with a knife. Because Trice
raised the self-defense issue at trial, under Florida law the trial court properly allowed
the prosecutor to present testimony showing the victim’s fear of Trice as rebuttal
evidence. Stoll v. State, 762 So. 2d 870, 874 (Fla. 2000) (holding that while a victim’s
hearsay statements in a homicide case that the victim was afraid of the defendant
generally are not admissible under the state of mind exception, a victim’s state of
mind might become relevant if the defendant claims self-defense). Accordingly, Trice
is entitled to no habeas relief on Ground Two.
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Ground Three:
Trice argues that the trial court erred by refusing to allow evidence that a
battered spouse can become an aggressor even in the absence of an immediate threat.
Trice wanted to call an expert to support his proposed defense that an individual who
was not battered, but imagined she was battered, can become the aggressor even
without an apparent and immediate threat. After a pretrial hearing, the trial court
denied Trice’s request and found no evidence to support the claim that a spouse who
imagines that she is abused can suffer from “battered woman syndrome.”
(Respondent’s Exhibit 1C at 377) The appellate court affirmed the trial court’s
ruling.
Under Section 90.704, Florida Statutes, an expert’s opinion must derive from
“facts or data . . . of a type reasonably relied upon by experts in the subject to support
the opinion expressed.” During the pretrial hearing Trice’s expert testified that he
had “insufficient evidence to state, within the bounds of reasonable psychological
probability, that [the victim] was a battered spouse or to determine her state of mind”
on the day of death. (Respondent’s Exhibit 1C at 382) As a consequence, the trial
court found that Trice’s expert did not meet the requirements of Section 90.704
because the expert admitted his lack of sufficient facts to support an admissible
opinion.
Further, the trial court noted that the proposed testimony was deficient under
Ramirez v. State, 651 So. 2d 1164, 1167 (Fla. 2d DCA 1995), which requires the
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proponent of a scientific opinion to establish that the expert testimony is reliable by
proving (Respondent’s Exhibit 1C at 375):
[T]he general acceptance of both the underlying scientific
principle and the testing procedure used to apply that principle
to the facts of the case at hand. The trial judge has the sole
responsibility to determine this question. The general
acceptance under the Frye test must be established by a
preponderance of the evidence.
Relying on both the Florida statute and applicable precedent, the trial court
held that Trice’s opinion about a victim’s imaginary belief that she suffers from
“battered woman syndrome” was a novel approach that failed to meet Ramirez’s
general acceptance test. The trial court’s ruling was proper, and Trice is entitled to
no habeas relief on Ground Three.
Grounds Four and Ten:
Both Ground Four and Ground Ten involve Trooper Lane’s testimony about
the physical evidence observed by Trooper Lane at the residence the day after the
shooting. Because Ground Four and Ground Ten are so closely related, Ground
Ten will be considered out of sequence.
In Ground Four Trice contends that the trial court erred by allowing a
non-expert witness to usurp the function of the jury by opining on the ultimate issue
of fact. Trooper Lane testified at trial that Trice’s description of the shooting was
inconsistent with the physical evidence. Trooper Lane testified as follows
(Respondent’s Exhibit 1J at 1070):
If you shot her from the position there in the closet, why is
there no body tissue near the area of the closet? Why did the
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bullet not go straight through her body and — and hit the
wall? Um, the bullet exited her body and struck a window
approximately six foot [sic] to the left of the body. Um, his
response was the bullet possibly had struck her spine and was
deflected left.
Trice argues that the prosecution offered no expert opinion on blood splatter or on
ballistics and used Trooper Lane’s lay testimony — instead of expert testimony — to
refute Trice’s version of the events that led to the shooting.
The respondent argues (1) that Trooper Lane’s testimony was proper because
he is an intelligent person whose experience with firearms naturally suggests to him
that Trice’s description of the shooting did not match with the physical evidence and
(2) that the trial court committed no error by allowing Trooper Lane to testify about
his conversation with Trice.
In citing the advisory committee notes to Rule 701, Federal Rules of Evidence,
Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., LTD., 320 F. 3d 1213, 1222
(11th Cir. 2003) (brackets original), explains:
[M]ost courts have permitted [officers] to testify . . . without the
necessity of qualifying the witness as [an] . . . expert. Such
opinion testimony is admitted not because of experience,
training or specialized knowledge within the realm of an expert,
but because of the particularized knowledge that the witness
has by virtue of his or her position in the business.
Trooper Lane’s testimony about his conversation with Trice at the residence was not
as an expert on ballistics or blood splatter. Trice’s trial counsel had the opportunity
to cross-examine Trooper Lane and inquire if he had any expertise in ballistics or
blood stain evidence. (Respondent’s Exhibit 1J at 1079) Trooper Lane based his
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testimony on Trice’s explanation of the shooting, not based on an investigation of
the death of the victim. Trooper Lane told Trice that the path of the bullet and the
lack of body tissue and blood splatter near the closet (where Trice said he shot the
victim) was inconsistent with Trice’s description of the shooting. Trooper Lane had
the experience, personal knowledge, and training to testify that Trice’s description
of the shooting was inconsistent with the evidence apparent at the crime scene. As
a consequence, the trial court did not err in allowing Trooper Lane’s testimony.
Accordingly, Trice is entitled to no habeas relief on Ground Four.
In Ground Ten Trice argues that trial counsel was ineffective for failing to
object to Trooper Lane’s testimony and for failing to present an expert in blood
splatter or reconstruction to rebut Trooper Lane’s testimony. The respondent argues
that trial counsel objected to the proffered testimony of Trooper Lane, whose
testimony the trial court limited but did not entirely exclude.
Trial counsel testified at the post-conviction hearing that he finds blood
splatter experts unreliable and that he carefully limited the testimony of the State’s
blood splatter expert. (Respondent’s Exhibit 5C at 447–448) Trial counsel testified
that defense testimony from a blood splatter or reconstruction expert would have
invited the prosecutor to expand the testimony of the prosecution’s blood splatter
expert after trial counsel had successfully limited the prosecutor’s expert testimony.
The post-conviction court held that not calling a reconstruction expert and not calling
a blood splatter expert were permissible and reasonable strategic decisions by trial
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counsel. (Respondent’s Exhibit 5C at 448) Trial counsel further testified that he felt
that cross-examining Trooper Lane and the prosecutor’s expert was sufficient.
Based upon the record, trial counsel acted reasonably in not calling a defense
expert. Further, Trice was not prejudiced by trial counsel’s strategy because had he
called an expert, the prosecutor could have presented expert evidence that trial
counsel had precluded. Trial counsel’s strategy was reasonable. The post-conviction
court’s finding that trial counsel’s strategy was reasonable is supported by the record.
Accordingly, Trice is entitled to no habeas relief on Ground Ten.
Ground Five:
Trice claims that trial counsel rendered “inept and unprofessional
representation” by failing to investigate his “locked-door” defense. Trice argues
that trial counsel failed to investigate whether the exterior door to his office was
unlocked at the time of the shooting. Trice believes that an unlocked office door
would evidence that he lawfully entered the residence through his exterior office
door — as allowed in the domestic violence injunction — and not unlawfully
through the garage door. Trice’s illegal entrance through the garage door is the
basis for his conviction for felony-murder. Trice asserts that he entered his office
through the exterior door and his estranged wife entered his office through the
residence door and attacked him.
In his post-conviction motion, Trice argued that trial counsel’s refusal to ask
Trooper Lane whether the exterior entrance to Trice’s office was unlocked amounts
to ineffective assistance of counsel. However, Trooper Lane’s testimony at the
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hearing on Trice’s post-conviction motion contradicts Trice’s claim. Trooper Lane
testified that, when talking with sheriff’s deputies investigating the crime scene, Trice
showed the deputies how he entered and exited his office. Trooper Lane testified
Trice had keys in his hand as he showed the deputies the door. Although he could
not confirm that Trice used the key to open the office door, Trooper Lane testified
that, if the door was unlocked, Trice would not need the key. Questioned further,
Trooper Lane testified as follows (Respondent’s Exhibit 5D at 645–647):
Sir, if he was trying to be emphatic with the two detectives that
that was the way he gained entrance into the house and this
door was unlocked, why wouldn’t he walk over to the door,
turn the knob and say, it’s still unlocked, that’s how I came in.
Why would he need to have a key for any reason? The door
was either open or it was closed, it was locked or unlocked. He
certainly wouldn’t need a key if it was unlocked.
The post-conviction court found that Trooper Lane’s testimony about the
locked door would not have helped Trice at trial. As Trooper Lane testified, if the
door was unlocked no key was needed to demonstrate how the lock worked — Trice
could have easily opened an unlocked door. The post-conviction court concluded
that “[b]ecause the testimony which Trooper Lane did offer would not have assisted
in the ‘door lock’ defense, the [c]ourt finds that Defendant has failed to show how his
former counsel performed deficiently in failing to elicit such testimony from Trooper
Lane during trial.”
Trice argues that trial counsel’s representation was ineffective by failing to
investigate the locked-door defense. However, a tactical decision by trial counsel is
ineffective assistance only if not presenting the defense was so patently unreasonable
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that no competent attorney would have chosen that strategy. Adams v. Wainwright,
709 F. 2d 1443, 1445 (11th Cir. 1983). Because most lawyers do not enjoy the
benefit of endless time, boundless energy, and inexhaustible money, an effective
and reasonable — even astute — “strategy” can include a decision not to investigate.
Rogers v. Zant, 13 F.3d 384, 387 (11th Cir. 1994). Strickland, 466 U.S. at 691, explains
that the ineffectiveness question turns on whether the decision not to pursue a
particular investigation was reasonable. See Atkins v. Singletary, 965 F. 2d 952, 958
(11th Cir. 1992) (noting that “[a]t some point, a trial lawyer has done enough,” and
that “[a] lawyer can almost always do something more in every case”); Gates v. Zant,
836 F. 2d 1492, 1498 (11th Cir. 1989) (as long as his decision was reasonable under
circumstances, counsel may elect to forego a particular line of defense without first
investigating it substantially). Given that the testimony of Trooper Lane at the postconviction hearing controverted Trice’s defense, trial counsel’s deciding not to pursue
the locked-door defense was a reasonable tactical decision. The post-conviction court
reasonably determined that trial counsel was not ineffective under Strickland because
Trice was not prejudiced by trial counsel’s strategic or tactical decision. Accordingly,
Trice is entitled to no habeas relief on Ground Five.
Ground Six:
Trice contends that trial counsel was ineffective for not calling a witness who
would have supported his contention that his relations with the victim were amicable
during the several months preceding the shooting. Trice wanted trial counsel to call
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as a witness his divorce attorney, who Trice contends would have testified that
relations between Trice and his estranged wife were peaceful and that the divorce
settlement was amicable. Also, Trice wanted his neighbor to testify. Trice asserts
that the neighbor would have testified that the neighbor had seen Trice and his
estranged wife in the front yard a few months before the shooting and that the two
were tranquil. Additionally, Trice wanted to call two witnesses from a car dealership
(“dealership witnesses”). Trice contends the dealership witnesses would have
testified that they saw the victim become enraged over the dealership’s refusal to
release Trice’s Corvette to her. Trice argues that possession of the Corvette was the
flashpoint that led to the shooting. Finally, Trice wanted to call a friend to testify
that the friend had spent time with Trice and his estranged wife and that Trice never
directed anger or a threat toward his wife. The respondent argues that trial counsel’s
decision not to call these witnesses was a reasonable and sound strategy.
The post-conviction court noted that Trice’s divorce attorney never spoke to
Trice’s estranged wife and could recount only what Trice had said. The postconviction court concluded that Trice “failed to produce evidence that his divorce
attorney had admissible relevant testimony which he could have offered at trial if he
had been called as a witness.” (Respondent’s Exhibit 5C at 431) Trial counsel did
not call Trice’s divorce attorney to testify because no applicable hearsay exception
would allow the attorney to testify about the victim’s comments.
Trial counsel did not call Trice’s neighbor because trial counsel concluded the
testimony was unhelpful. Also, trial counsel did not call the dealership witnesses to
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testify about the incident over the Corvette because the dealership’s service manager
testified. At the post-conviction evidentiary hearing, trial counsel said he could not
remember exactly why he did not call the dealership witnesses other than he decided
that the dealership’s service manager was a better witness. (Respondent’s Exhibit 5C
at 433) After the hearing the post-conviction court held that trial counsel did not call
the dealership witnesses because their testimony was less specific than the service
manager’s testimony. The post-conviction court continued that the dealership
witnesses could also testify about a second incident involving the Corvette at which
the victim was meek and non-confrontational. Therefore, the dealership witnesses’s
testimony would not be beneficial to the defense’s argument that the Corvette was a
flashpoint that would always enrage the victim.
The post-conviction court held as follows (Respondent’s Exhibit 5C at 435):
[T]he court finds that [trial counsel’s] decision not to call either
of these witnesses was reasonable. Judicial scrutiny of counsel’s
trial decisions should be afforded great deference. See Strickland,
466 U.S. 689. A reasonable strategic decision by counsel does
not constitute ineffective assistance of counsel.
Finally, the post-conviction court considered the testimony of Trice’s friend.
Trice avers that his friend could testify to the good relations between Trice and the
victim. However, the friend testified at the post-conviction hearing that he socialized
with Trice and the victim on only one occasion before Trice’s marriage to the victim.
(Respondent’s Exhibit 5C, at 435) The post-conviction court found that, because
Trice’s friend could not testify from personal knowledge of the relations between
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Trice and the victim, his testimony was unhelpful. Therefore, the post-conviction
court found no error by trial counsel.
A trial attorney’s decision not to call a certain witness is a strategic
decision that constitutes ineffective assistance only if not presenting the evidence is
a patently unreasonable strategy that no competent attorney would choose. Adams v.
Wainwright, 709 F. 2d 1443, 1445 (11th Cir. 1983). In this instance, trial counsel
decided that calling Trice’s divorce attorney was not possible because no hearsay
exception would allow the testimony. Calling the dealership witnesses would have
diminished trial counsel’s argument that the victim became enraged over possession
of the Corvette because the dealership witnesses would testify that on a similar
occasion she was meek and mild-mannered about losing the Corvette. Trial
counsel’s decision not to call Trice’s friend was reasonable because his testimony
about Trice’s and the victim’s relations was based on meeting the victim only once.
After a review of the witnesses and the trial court’s rulings, the post-conviction
court’s holding was not unreasonable. Accordingly, Trice is entitled to no habeas
relief on Ground Six.
Ground Seven:
Trice asserts that trial counsel rendered ineffective assistance by not calling
an expert to explain how Trice’s emotional shock after the shooting and his law
enforcement training affected his personality and his demeanor. The respondent
argued that trial counsel’s decision not to call an expert was reasonable trial strategy.
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Officers testified at trial that Trice was emotionless and nonchalant after the
shooting. Trice claims trial counsel should have called an expert to testify that
Trice’s training as a police officer and Trice’s shock from the shooting induced a state
of indifference. Trial counsel testified at the post-conviction hearing that he did not
call an expert because his strategy was to rely on the jurors’ common sense.
At the post-conviction evidentiary hearing, trial counsel testified that “he
would not have called an expert on the issue of whether [Trice] suffered from a
psychogenic shock after he was stabbed.” (Respondent’s Exhibit 5C, at 439) Trial
counsel continued that “it was his preference not to use an expert witness when he
could easily demonstrate the same thing by relying on common sense.” Trial counsel
testified that he had “elicited testimony on cross-examination and from his own
witness that [Trice] was in a state of psychogenic shock following the murder.”
(Respondent’s Exhibit 5C at 439–40) Indeed, trial counsel presented the testimony
of the first paramedic to observe Trice after the shooting. The paramedic testified on
direct examination that Trice had a rapid pulse, was sweaty, was agitated, and was
nervous. On cross-examination, the paramedic testified that after the shooting Trice
was suffering from psychogenic shock. (Respondent’s Exhibit 5C at 440)
The post-conviction court held (1) that trial counsel’s preference — to rely on
one’s common sense rather than complicate matters with an expert — was a strategy
used to avoid the unnecessary use of experts; (2) that “instead of theorizing, through
expert witnesses, over whether demeanor is indicative of guilt, over whether [Trice’s]
demeanor was cold or aloof, and whether any conclusion about [Trice] could be
- 28 -
drawn from that demeanor, the defense simply called a witness who described
[Trice] as being in a state of shock”; and (3) that trial counsel’s strategy of not calling
experts unless absolutely necessary was reasonable. Trice’s claim concerning trial
counsel’s failure to call an expert witness fails. In reviewing counsel’s performance,
a court must avoid using “the distorting effects of hindsight” and must evaluate the
reasonableness of counsel’s performance “from counsel’s perspective at the time.”
Strickland, 104 S. Ct. at 2065. “[I]t is all too easy for a court, examining counsel’s
defense after it has proved unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable.” As noted above, a tactical decision by trial counsel is
ineffective assistance only if not presenting the defense was so patently unreasonable
that no competent attorney would have chosen that strategy. Adams, 709 F. 2d
at 1445. Contrary to Trice’s argument that he needed an expert to inform the jurors
that he was suffering from psychogenic shock, trial counsel presented evidence that
Trice was suffering from psychogenic shock by calling the paramedic who responded
to the scene. Trial counsel’s strategy not to call an expert witness did not prejudice
Trice because evidence describing his alleged shock was presented to the jurors. The
state court reasonably applied Strickland in determining that trial counsel’s
performance was not deficient. Accordingly, Trice is entitled to no habeas relief on
Ground Seven.
- 29 -
Ground Eight:
Trice claims he received ineffective assistance of counsel because trial
counsel misadvised him by telling him his employment file as a Florida State Trooper
was not admissible. At the time of the shooting, Trice had worked for the Florida
Highway Patrol (FHP) for fourteen years. Although Trice claims that during his
service at FHP he never received a complaint for excessive force or violent behavior,
the former in-laws of Trice’s ex-girlfriend claim that Trice threatened them — an
allegation that appears in Trice’s FHP file.
Trial counsel testified at the post-conviction hearing that he did not recall
every reason why he did not introduce Trice’s FHP file in evidence, but trial counsel
testified that he would introduce into evidence only information helpful to Trice. At
the evidentiary hearing, portions of Trice’s FHP file were read into the record; the
FHP file included a report of an encounter between Trice and his ex-girlfriend’s
former in-laws.
According to the report, Trice’s girlfriend rented a residence from her former
in-laws. Trice encountered the former in-laws at the rented residence while he was
on duty. An argument ensued. Trice allegedly threatened the former in-laws and
allegedly attempted to taunt them into an attack so that he could arrest them.
Testimony at the post-conviction hearing confirmed that Trice’s FHP file was not
admitted because of the incident. The post-conviction court’s order denying relief
quotes trial counsel approvingly (Respondent’s Exhibit 5C at 441):
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I’m reasonably confident that given the nature of the allegations
[in this case], the nature of the testimony of the witnesses that
were going to [be] talking about [the victim’s] alleged fears, and
what this entry in the record about the allegations that he had
been in his girlfriend’s house and had a heated confrontation
with her parents and became abusive, I would never want to
place this before a jury.
After hearing the testimony at the evidentiary hearing, the post-conviction court held
that trial counsel’s omitting Trice’s FHP record did not violate Trice’s constitutional
right to effective counsel.
Trial counsel’s decision to omit Trice’s FHP record based on the confrontation
with his ex-girlfriend’s former in-laws was a conscious and reasonable strategic
decision. Testimony at the hearing confirms that trial counsel strategically decided
that the detriment from admission of the encounter with Trace’s ex-girlfriend’s
former in-laws negated or, at least, outweighed any benefit Trice might gain by
admitting Trice’s FHP record. The post-conviction court was objectively reasonable
in its application of Strickland. Accordingly, Trice is entitled to no habeas relief on
Ground Eight.
Ground Nine:
Trice alleges he received ineffective assistance because trial counsel did
not move to recuse the judge after allegedly adverse comments by the judge about
Trice. The respondent argues both that Trice failed to produce any evidence to
support this claim and that trial counsel said he was unaware of any such comments.
In support of his claim Trice states that the trial judge’s attendance at a
domestic violence seminar the night before the trial was reported in The Tampa
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Tribune. Trice said his mother-in-law attended the seminar and spoke directly with
the trial judge. (Respondent’s Exhibit 5C at 444) Trice testified that the trial judge
told him at his pre-trial bail hearing that she did not like the way he treated women.
He further avers that the trial judge admonished him for crying when the 911 tape
was played in open court at his trial. Finally, Trice said the trial judge stated at his
sentencing that, as an example to others, she would exceed the guidelines and
sentence him to life imprisonment.
Trice had the burden of proof during the state post-conviction proceeding
and, under Bester v. Warden, 836 F. 3d 1331, 1338 (11th Cir. 2016), he has the
burden of establishing prejudice under Strickland. None of the allegedly improper
comments during the pretrial conference or the sentencing were found in the record,
and at the post-conviction evidentiary hearing Trice produced no record of an
improper comment by the trial judge. Trice was unable to produce a newspaper
article reporting that the trial judge commented about him or that the trial judge
attended the domestic violence conference the night before his trial. In fact, Trice’s
mother-in-law, specifically addressing the domestic violence conference allegation,
testified that she was at the domestic violence conference but that she neither saw the
trial judge nor spoke with her. Because the evidence presented at the post-conviction
hearing refutes his allegations, Trice fails to meet his burden to show that that the
post-conviction court unreasonably applied Strickland. Accordingly, Trice is entitled
to no habeas relief on Ground Nine.
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Ground Eleven:
Trice avers that trial counsel rendered ineffective assistance by not moving
for a change of venue because his case was a high profile case with unusually
extensive media coverage, which potentially biased the jury pool.
During voir dire the trial court asked potential jurors whether any of them
had heard about the case and whether anyone had formed an opinion about the case.
(Respondent’s Exhibit 1D at 25) Trial counsel questioned each prospective juror on
whether they had seen media reports about the case and whether any had formed an
opinion because of those media reports. (Respondent’s Exhibit 1G at 503–651)
Those who had formed an opinion were excluded from the jury. The post-conviction
court held that trial counsel acted reasonably. Without some prejudicial effect, even
inordinate widespread publicity fails to warrant a change of venue. Baldwin v.
Johnson, 152 F. 3d 1304, 1314 (11th Cir. 1998). Trice fails to show how the pretrial
publicity prejudiced his case. Trice failed to demonstrate how he was prejudiced by
trial counsel’s failure to move for a change in venue. Because Trice did not establish
prejudice under Strickland, the post-conviction court’s denial of this claim was
reasonable. Trice is entitled to no habeas relief on Ground Eleven.
Ground Twelve:
Trice alleges that trial counsel provided ineffective assistance by not objecting
to the police officers’ testifying while wearing their uniforms but not appearing in an
official capacity. Trice claims the officers’ uniforms bestowed on them an extra
- 33 -
credibility. Trice also claims that trial counsel should have objected to the
prosecutor’s closing argument that suggested that he — as a trained law enforcement
officer — was trained to testify in court and should not be believed. The respondent
argues that Trice offers neither substantive law nor a procedural rule that supports his
contention that an officer testifying in a non-official capacity should not wear a police
uniform.
In fact, no law or rule prevents an officer from wearing a uniform while
testifying in court, even if not testifying in his official capacity. See Zaken v. Kelly, 370
Fed. App’x 982, 987–88 (11th Cir. 2010) (holding that, although the officers were
sued in their individual capacity, the fact the defendants were police officers would
emerge at trial because the plaintiff alleged the officers’ use of excessive force)).
Likewise, even if the officers in this case had not worn a uniform, the fact that they
were police officers would have emerged. The officers were Trice’s colleagues and
testified about Trice’s threatening statements about the victim, but because a law
enforcement officer can wear a uniform while testifying, trial counsel’s not objecting
was not deficient performance. Any objection was meritless and trial counsel is not
deficient for failing to assert a meritless objection.
Further, Trice alleges that “[t]rial counsel failed to object and preserve the
[prosecutor’s] improper comment during closing argument essentially that Trice
was a trained law enforcement officer and was therefore trained to testify and should
not be believed.” Trice points to no statement by the prosecutor that Trice could not
be trusted because of his training as a law enforcement officer. The trial court
- 34 -
rejected this claim because Trice failed to identify with any specificity the argument
Trice claims the prosecutor advanced.
The prosecutor’s mention of Trice’s past employment as a Florida State
Trooper would have no prejudicial effect upon the jurors’ because Trice’s position as
a state trooper was already known. Further, while he speculates that the prosecutor’s
comments attacked his credibility, Trice identifies no objectionable comment. “A
convicted defendant making a claim for ineffective assistance of counsel must
identify the acts or omissions of counsel that are alleged not to have been the result
of reasonable professional judgment.” Strickland, 466 U.S. at 690. Trice’s contention
that trial counsel failed to object to comments that might have attacked Trice’s
credibility is too general and conclusory. Consequently, trial counsel did not provide
ineffective assistance by not objecting to the prosecutor’s closing remarks, nor did the
post-conviction court err by determining that Trice was provided with effective
assistance. Accordingly, Trice is entitled to no habeas relief on Ground Twelve.
Ground Thirteen:
Trice claims that the trial court improperly denied his request to apply a
substantial change in the law governing the duty to retreat by a co-occupant of a
home in a case of self-defense. Trice argues that under Weiland v. State, 732 So. 2d
1044, 1058 (Fla. 1999), a defendant who is attacked in his home by a co-occupant of
that home has no duty to retreat before using deadly force in self-defense. Weiland
applied to future cases and cases that were not final when the decision was issued.
- 35 -
Both the respondent and Trice agree to his entitlement to Weiland because his case
was not yet final when Weiland issued.
Under Florida statutory and common law, a person may use deadly force in
self-defense if the person reasonably believes that deadly force is necessary to prevent
imminent death or great bodily harm. Fla. Stat. § 776.012. Before Weiland, even in a
person’s home, a person had a limited duty to retreat to prevent the loss of life.
Hedges v. State, 165 So. 2d 213, 214–15 (Fla. 2d DCA 1964). Weiland, 732 So. 2d at
1058, eliminated the duty to retreat in one’s own home before resorting to deadly
force against a co-occupant or invitee when necessary to prevent death or great bodily
harm.2
Furthermore, under Weiland a person’s duty to retreat is inapplicable to
Trice because Weiland applies to co-occupants of a residence. Trice was no longer
a co-occupant of the residence with the victim. Trice had been barred from the
residence by a domestic violence injunction that prohibited Trice from entering the
residence, except through an exterior door into his office. The evidence at trial
showed that Trice violated that injunction and entered the residence through the
garage. Any reliance on Weiland by Trice as a co-occupant of the residence would
necessarily fail because Trice was no longer a co-occupant of the residence. As a
consequence, by violating the domestic violence injunction, Trice was a trespasser.
To benefit from a change in the law based on a Florida supreme court decision, the
defendant must timely object at trial if an objection was required to preserve the issue for appellate
review. Smith v. State, 598 So. 2d 1063, 1066 (Fla. 1992). Trice neither objected based on Weiland at
trial nor raised Weiland on direct appeal.
2
- 36 -
Therefore, he may not now obtain habeas relief under Weiland. Accordingly, Trice
is entitled to no habeas relief on Ground Thirteen.
CONCLUSION
To summarize, Trice fails to meet his burden to show that the state court’s
decisions were either based upon an unreasonable application of controlling Supreme
Court precedent or an unreasonable determination of fact. As Burt v. Titlow,
134 S. Ct. 10, 15S16 (2013), recognizes, an applicant’s burden under Section 2254 is
very difficult to meet:
Recognizing the duty and ability of our state-court colleagues
to adjudicate claims of constitutional wrong, AEDPA erects a
formidable barrier to federal habeas relief for prisoners whose
claims have been adjudicated in state court. AEDPA requires
“a state prisoner [to] show that the state court’s ruling on the
claim being presented in federal court was so lacking in
justification that there was an error . . . beyond any possibility
for fairminded disagreement.” Harrington v. Richter, 562 U.S.
[86, 103] (2011). “If this standard is difficult to meet” — and it
is — “that is because it was meant to be.” Id., at [102]. We will
not lightly conclude that a State’s criminal justice system has
experienced the “extreme malfunctio[n]” for which federal
habeas relief is the remedy. Id., at [103] (internal quotation
marks omitted).
Accordingly, Trice’s application for the writ of habeas corpus (Doc. 1) is
DENIED. The clerk must enter a judgment against Trice, terminate any pending
motions and deadlines, and close this case.
- 37 -
DENIAL OF BOTH A CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Trice is not entitled to a certificate of appealability (“COA”). A prisoner
seeking a writ of habeas corpus has no absolute entitlement to appeal a district
court’s denial of his application. 28 U.S.C. § 2253(c)(1). Rather, a district court
must first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the
applicant has made a substantial showing of the denial of a constitutional right.”
To merit a COA, Trice must show that reasonable jurists would find debatable both
the merits of the underlying claims and the procedural issues he seeks to raise. See
28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan,
279 F.3d 926, 935 (11th Cir 2001). Because he fails to show that reasonable jurists
would debate either the merits of the claims or the procedural issues, Trice is entitled
to neither a COA nor leave to appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Trice must obtain permission from the circuit court to
appeal in forma pauperis.
ORDERED in Tampa, Florida, on September 7, 2017.
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