Smith v. Secretary, Department of Corrections et al
Filing
64
OPINION AND ORDER. The Petition for Writ of Habeas Corpus 1 is DENIED. The Clerk of the Court shall enter judgment accordingly and close this case. This Court should grant an application for certificate of appealability only if the Petitio ner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Petitioner has failed to make this showing. Accordingly, a Certificate of Appealability is DENIED in this case. And because Petitioner is not entitled to a Certificate of Appealability, he is not entitled to proceed on appeal in forma pauperis. Signed by Judge Charlene Edwards Honeywell on 3/25/2020. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LAWRENCE JOEY SMITH,
Petitioner,
-vs-
Case No.
8:13-cv-2260-T-36AEP
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
__________________________/
ORDER
Petitioner, a Florida prisoner, initiated this action by filing a petition for habeas corpus
relief pursuant to 28 U.S.C. Section 2254 (Doc. 1), and a memorandum in support (Doc. 2).
Upon consideration, the Court ordered Respondent to show cause why the relief sought in the
petition should not be granted (Doc. 6).
Thereafter, Respondent filed a response to the petition
(Doc. 21), to which Petitioner replied (Doc. 30).
For the reasons set forth below, the petition
will be denied.
Petitioner alleges six grounds for relief:
1.
The trial court lacked jurisdiction to try, convict, and sentence Petitioner because
the Indictment was not drafted, signed, and filed by a qualified assistant state
attorney;
2a-j.
Defense counsel was ineffective in failing to:
a. effectively cross examine State witnesses Theodore Butterfield and Heath
Brittingham;
b. elicit key testimony from the surviving victim Stephen Tuttle;
c. impeach witnesses Bryon Loucks and Ken Shook;
d. adequately investigate the case and present available evidence;
e. obtain Butterfield and Brittingham=s grand jury testimony;
f. object to Tuttle=s testimony that Petitioner=s co-defendant Faunce Pearce
committed a sexual battery on Tuttle;
g. object to the prosecutor=s improper argument;
h. adequately argue against the trial court=s sustaining the State=s objection to
defense counsel impeaching Butterfield by questioning him as to why he failed to
mention in his prior statements to law enforcement that Pearce and Petitioner
switched guns prior to the shootings;
i. present an alternate defense theory that Butterfield shot the victims; and
j. move to dismiss the Indictment because it was not drafted, signed, and filed by
a qualified assistant state attorney;
2k.
The cumulative effect of defense counsel=s errors deprived Petitioner a fair trial;
3.
The State committed Brady and Giglio violations in failing to disclose the deal it
made with Butterfield in exchange for his testimony, in allowing him to testify
that he had no incentive to testify for the State, and arguing to the jury that he had
no reason to testify falsely;
4.
Newly discovered evidence casts doubt on his guilt and warrants a new trial;
5.
The trial court was without jurisdiction because the jury panel took an oath before
a person who was not qualified to administer an oath; and
6.
He was denied a fair trial because the trial judge was not present when the jury
panel took its oath.
I. FACTS 1
On the evening of September 13, 1999, Faunce Pearce visited Bryon Loucks at Loucks=
home, which was also his place of business, and asked Loucks= teenage stepson, Ken Shook, to
obtain for him a book of 1000 geltabs (LSD) for $1200. Shook called two friends, Stephen
1
This summary of facts is taken from the Florida Supreme Court=s opinion affirming Petitioner=s
convictions and sentence of life imprisonment for attempted first-degree murder and remanding to the circuit court
for resentencing for the first-degree murder conviction. Smith v. State, 866 So. 2d 51, 53 (Fla. 2004)
Tuttle and Robert Crawford, who in turn called another friend, Amanda Havner. Havner
contacted her source for drugs, Tanya Barcomb, who said she could obtain the geltabs. Tuttle,
Crawford, and Havner then went to Loucks= home, where Pearce gave them the money and
indicated that they should not return without either the money or the drugs. The four teenagers
went to Barcomb=s house, where Barcomb indicated that she, her boyfriend, and Havner would
obtain the drugs from a supplier while the boys remained behind. After arriving at an apartment
complex, Barcomb told Havner to stay in the car. Barcomb and her boyfriend then entered a
friend=s apartment, and her boyfriend hid the money in his own shoe after punching himself in
the face. When they returned to the car, they told Havner that the supplier had stolen the money.
Because of Barcomb=s deception, Shook, Tuttle, Crawford, and Havner eventually were forced to
return to Loucks= home without either the money or the drugs.
While the teenagers were gone, Pearce and Loucks learned by telephone that the money
had been stolen. Pearce became very angry and was standing outside with a gun visibly tucked in
his pants when they returned shortly thereafter. As Shook, Tuttle, Crawford and Havner exited
the car, Pearce waved the gun and ordered them inside the office of Loucks= business. Loucks
and the four teenagers remained confined there by Pearce for an unknown period, during which
Pearce=s mood swung between calm and threatening. Pearce refused to allow anyone to leave
and, at various times, waved his gun. At one point, he grabbed Havner by the throat and
slammed her head against a wall. At another, he took Tuttle outside and forced him at gunpoint
to perform oral sex upon him.
Eventually, Pearce allowed Havner to leave. Around that time, Pearce also called a
friend, Theodore Butterfield, and asked Butterfield to bring Smith, the defendant in this case, and
come to Loucks= home.
Many neighbors were at the house where Butterfield received the call,
3
including Heath Brittingham, who agreed to join Butterfield.
When Smith, Butterfield and
Brittingham arrived, they were visibly armed, and Smith stated, AWe=re here to do business.@
According to Tuttle, Pearce then spoke with these three men outside. Brittingham also testified
that Pearce and Smith spoke to each other at a distance from Brittingham, so that he did not hear
what was said. At some point, Pearce told the three men that Tuttle and Crawford were going to
show them where to find the people who stole Pearce=s money. Pearce, still holding his gun, then
told Tuttle and Crawford to get in his car. Loucks refused to allow Pearce to take his step-son,
Shook, as well. Loucks offered to drive Tuttle and Crawford, who had arrived in Havner=s car, to
their homes and to get Pearce the money in the morning. Pearce refused, but told Loucks he was
not going to hurt the boys--only take them down the road, punch them in the mouth, and make
them walk home. Pearce instructed Loucks to wait by the phone to hear from the boys.
Pearce, Smith, Butterfield, Brittingham, Tuttle and Crawford left in Pearce=s car, a
two-door trans am with T-tops.
Pearce drove, and Smith sat in the front passenger seat.
In the
back, Tuttle sat on Crawford=s lap in the middle, while Butterfield and Brittingham sat on either
side of the boys. After driving a short time, Pearce turned in the wrong direction for traveling to
Barcomb=s location. He drove a short distance more and performed a U-turn.
According to
Butterfield=s testimony, sometime during this drive Smith told Pearce that his 9 mm pistol
jammed and the two exchanged guns, with Smith receiving Pearce=s functional .40 caliber pistol.
Brittingham also testified that Pearce and Smith exchanged guns during this trip.
Pearce stopped the car along the side of the road and told Tuttle to get out of the car.
Smith first exited from the passenger=s side and stood between the door and the car while Tuttle
crawled over Brittingham from the middle of the backseat and out the passenger=s side. Pearce
told Smith to APop him in the f---ing jaw,@ to which Smith replied, AF--- that.@
4
Smith then
turned around and shot Tuttle once in the back of the head. When Smith got back in the car,
Pearce asked, AIs he dead?@ and Smith replied, AYeah, he=s dead. I shot him in the head with a
f---ing .40.@ Pearce then drove approximately two hundred yards further, stopped the car, and
Smith again exited the vehicle. Pearce ordered Crawford out. Crawford complied while pleading,
ADon't. Please don=t.@ Smith shot Crawford once in the head, Crawford fell, and Smith shot him a
second time in the chest.
After leaving the scene, Smith threatened to kill Butterfield and Brittingham if they
snitched. Pearce drove to a restaurant where he and Smith ate.
Pearce and Smith then left
Butterfield and Brittingham at a grocery store, telling them not to leave.
approximately forty minutes to an hour later.
They returned
They drove to a bridge, where Smith wrapped the
.40 caliber pistol in newspaper and threw it in the water.
Shortly thereafter they split ways, and
Smith attempted to leave town by bus but was unable to do so because of an approaching
hurricane.
Remarkably, Tuttle survived the gunshot to his head.
At trial, he testified that he
remembered getting out of the car, then everything went black, and his next memory was waking
up on the side of the road.
He felt the hole in his head but did not remember being shot or who
shot him. He eventually flagged down assistance. Crawford, however, died at the scene.
The entire course of these events occurred during the evening of September 13, and into
the morning of September 14, 1999. That morning, Butterfield and Brittingham were located and
interviewed by police.
Smith was arrested on the same day, and Pearce was located and
arrested a couple of weeks later.
The murder weapon, Pearce=s .40 caliber pistol, was recovered
from the location in Tampa Bay where Butterfield testified Smith had thrown it, and the bullets
found in Tuttle and Crawford were matched to the same pistol.
5
Smith and Pearce were charged as codefendants and tried separately. Butterfield and
Brittingham served as State witnesses. At trial, the defense=s theory was that although Smith was
present in the car, Pearce was the shooter, possibly through the T-top opening in the car, and that
Butterfield and Brittingham=s testimonies were designed to cover for Pearce by naming Smith as
the shooter.
On May 3, 2001, a jury convicted Smith of the attempted first-degree murder of
Tuttle and the first-degree murder of Crawford.
II. PROCEDURAL HISTORY
Petitioner was convicted of first-degree murder and attempted first-degree murder
(Respondent’s Ex. 2).
He was sentenced to death on the murder conviction and life in prison on
the attempted murder conviction (Id.).
The Florida Supreme Court affirmed the convictions
and life sentence but remanded the case to the trial court for a new penalty phase hearing (Id.).
Petitioner was resentenced to life in prison on the murder conviction (Respondent’s Ex. 7).
Florida=s Second District Court of Appeal affirmed the sentence (Respondent=s Ex. 13); Smith v.
State, 29 So. 3d 304 (Fla. 2d DCA 2010) [table].
Petitioner filed an amended post-conviction motion pursuant to Rule 3.850, Fla.R.Crim.P.
(Respondent’s Ex. 16), memorandum in support (Respondent’s Ex. 16A), and a supplement to
the motion (Respondent’s Ex. 16B).
The state post-conviction court issued an order denying
some grounds, struck others, and directed the State to respond to the remaining claims
(Respondent’s Ex. 17).
Following Petitioner’s amendment to Ground 3, Subclaim 10
(Respondent’s Ex. 18), the State=s response (Respondent’s Ex. 19), and Petitioner=s reply
(Respondent’s Ex. 20), the State court denied the remaining grounds (Respondent’s Ex. 21).
The state appellate court affirmed the denial of Petitioner=s amended Rule 3.850 motion
(Respondent=s Ex. 29); Smith v. State, 115 So. 3d 1011 (Fla. 2d DCA 2013) [table].
6
Petitioner filed his petition for a writ of habeas corpus and memorandum in support in
this Court (Docs. 1, 2).
III. GOVERNING LEGAL PRINCIPLES
Because Petitioner filed his petition after April 24, 1996, this case is governed by 28
U.S.C. ' 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996
(AAEDPA@). Penry v. Johnson, 532 U.S. 782, 792 (2001); Henderson v. Campbell, 353 F.3d 880,
889-90 (11th Cir. 2003). The AEDPA Aestablishes a more deferential standard of review of state
habeas judgments,@ Fugate v. Head, 261 F.3d 1206, 1215 (11th Cir. 2001), in order to Aprevent
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. 685, 693 (2002); see also Woodford v. Visciotti, 537
U.S. 19, 24 (2002) (recognizing that the federal habeas court=s evaluation of state-court rulings is
highly deferential and that state-court decisions must be given the benefit of the doubt).
A. Standard of Review Under the AEDPA
Pursuant to the AEDPA, habeas relief may not be granted with respect to a claim
adjudicated on the merits in state court 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.
28 U.S.C. ' 2254(d).
The phrase Aclearly established Federal law,@ encompasses only the
holdings of the United States Supreme Court Aas of the time of the relevant state-court decision.@
Williams v. Taylor, 529 U.S. 362, 412 (2000).
A[S]ection 2254(d)(1) provides two separate bases for reviewing state court decisions; the
7
>contrary to= and >unreasonable application= clauses articulate independent considerations a
federal court must consider.@ Maharaj v. Secretary for Dep=t. of Corr., 432 F.3d 1292, 1308
(11th Cir. 2005).
The meaning of the clauses was discussed by the Eleventh Circuit Court of
Appeals in Parker v. Head, 244 F.3d 831, 835 (11th Cir. 2001):
Under the Acontrary to@ clause, a federal court may grant the writ if the state court
arrives at a conclusion opposite to that reached by [the United States Supreme
Court] on a question of law or if the state court decides a case differently than [the
United States Supreme 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 [the
United States Supreme Court=s] decisions but unreasonably applies that principle
to the facts of the prisoner=s case.
If the federal court concludes that the state court applied federal law incorrectly, habeas relief is
appropriate only if that application was Aobjectively unreasonable.@ Id.
Finally, under ' 2254(d)(2), a federal court may grant a writ of habeas corpus if the state
court=s decision Awas based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.@
A determination of a factual issue made by a state
court, however, shall be presumed correct, and the habeas petitioner shall have the burden of
rebutting the presumption of correctness by clear and convincing evidence.
See Parker, 244
F.3d at 835-36; 28 U.S.C. ' 2254(e)(1).
B. Standard for Ineffective Assistance of Counsel
The United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984),
established a two-part test for determining whether a convicted person is entitled to relief on the
ground that his counsel rendered ineffective assistance: (1) whether counsel=s performance was
deficient and Afell below an objective standard of reasonableness@; and (2) whether the deficient
8
performance prejudiced the defense. 2
Id. at 687-88.
A court must adhere to a strong
presumption that counsel=s conduct falls within the wide range of reasonable professional
assistance. Id. at 689-90.
AThus, 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.@
Id. at 690; Gates v. Zant, 863 F.2d 1492, 1497 (11th Cir.
1989).
As observed by the Eleventh Circuit Court of Appeals, the test for ineffective assistance
of counsel:
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. Courts also should at the start presume effectiveness and
should always avoid second guessing with the benefit of hindsight. Strickland
encourages reviewing courts to allow lawyers broad discretion to represent their
clients by pursuing their own strategy. We are not interested in grading lawyers'
performances; we are interested in whether the adversarial process at trial, in fact,
worked adequately.
White v. Singletary, 972 F.2d 1218, 1220-21 (11th Cir. 1992) (citation omitted).
Under those
rules and presumptions, Athe cases in which habeas petitioners can properly prevail on the ground
of ineffective assistance of counsel are few and far between.@
Rogers v. Zant, 13 F.3d 384, 386
(11th Cir. 1994).
C. Exhaustion of State Remedies and Procedural Default
Before a district court can grant habeas relief to a state prisoner under ' 2254, the
petitioner must exhaust all state court remedies that are available for challenging his conviction,
2
In Lockhart v. Fretwell, 506 U.S. 364, 372 (1993), the United States Supreme Court clarified that the
prejudice prong of the test does not focus solely on mere outcome determination; rather, to establish prejudice, a
criminal defendant must show that counsel=s deficient representation rendered the result of the trial fundamentally
unfair or unreliable.
9
either on direct appeal or in a state post-conviction motion. See ' 2254(b)(1)(A); O=Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999) (A[T]he state prisoner must give the state courts an
opportunity to act on his claims before he presents those claims to a federal court in a habeas
petition.@). A state prisoner A>must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State=s established appellate review
process,= including review by the state=s court of last resort, even if review in that court is
discretionary.@ Pruitt v. Jones, 348 F.3d 1355, 1358-59 (11th Cir. 2003) (quoting O=Sullivan, 526
U.S. at 845.)
To exhaust a claim, a petitioner must make the state court aware of both the legal and
factual bases for his claim. See Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998)
(AExhaustion of state remedies requires that the state prisoner >fairly presen[t] federal claims to
the state courts in order to give the State the opportunity to pass on and correct alleged violations
of its= prisoners federal rights.=@) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995)). A federal
habeas petitioner Ashall not be deemed to have exhausted the remedies available in the courts of
the State. . .if he has the right under the law of the State to raise, by any available procedure, the
question presented.@ Pruitt, 348 F.3d at 1358. The prohibition against raising an unexhausted
claim in federal court extends to both the broad legal theory of relief and the specific factual
contention that supports relief. Kelley v. Sec=y, Dep=t of Corr., 377 F.3d 1317, 1344 (11th Cir.
2004).
The requirement of exhausting state remedies as a prerequisite to federal review is
satisfied if the petitioner Afairly presents@ his claim in each appropriate state court and alerts that
court to the federal nature of the claim. 28 U.S.C. ' 2254(b)(1); Picard v. Connor, 404 U.S. 270,
275-76 (1971). A petitioner may raise a federal claim in state court Aby citing in conjunction with
10
the claim the federal source of law on which he relies or a case deciding such claim on federal
grounds, or simply by labeling the claim >federal.=@ Baldwin v. Reese, 541 U.S. 27, 32 (2004).
The doctrine of procedural default provides that A[i]f the petitioner has failed to exhaust
state remedies that are no longer available, that failure is a procedural default which will bar
federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of
justice exception is established.@ Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). To
establish cause for a procedural default, a petitioner Amust demonstrate that some objective factor
external to the defense impeded the effort to raise the claim properly in state court.@ Wright v.
Hopper, 169 F. 3d 695, 703 (11th Cir. 1999). See also Murray v. Carrier, 477 U.S. 478 (1986).
To show prejudice, a petitioner must demonstrate not only that the errors at his trial created the
possibility of prejudice but that they worked to his actual and substantial disadvantage and
infected the entire trial with error of constitutional dimensions. United States v. Frady, 456 U.S.
152 (1982). The petitioner must show at least a reasonable probability of a different outcome.
Crawford v. Head, 311 F.3d 1288, 1327-28 (11th Cir. 2002).
Alternatively, a petitioner may obtain federal habeas review of a procedurally defaulted
claim if review is necessary to correct a fundamental miscarriage of justice. Edwards v.
Carpenter, 529 U.S. 446, 451 (2000); Carrier, 477 U.S. at 495-96.
A fundamental miscarriage
of justice occurs in an extraordinary case where a constitutional violation has probably resulted
in the conviction of someone who is actually innocent. Schlup v. Delo, 513 U.S. 298, 327
(1995).
A>[A]ctual innocence= means factual innocence, not mere legal insufficiency.@
v. United States, 523 U.S. 614, 623 (1998).
Bousley
To meet this standard, a petitioner must show a
reasonable likelihood of acquittal absent the constitutional error.
11
Schlup, 513 U.S. at 327.
IV. ANALYSIS
Ground One
Petitioner contends that the state trial court was without jurisdiction to try and convict
him because the Indictment was invalid, since it was drafted, signed, and filed by Bruce Bartlett,
who was neither the State Attorney nor a Aqualified@ assistant state attorney.
He asserts that
under Florida law only the State Attorney or a qualified assistant state attorney may draft, sign,
or file indictments to initiate criminal charges.
Petitioner=s claim fails for several reasons.
First, his claim presents a state law issue for which federal habeas corpus relief does not
lie. Whether the Indictment was procedurally sufficient under Florida law is a state law matter.
Federal relief is available to correct only constitutional injury. Wainwright v. Goode, 464 U.S. 78
(1983).
Federal habeas courts sit to ensure that individuals are not imprisoned in violation of
the Constitution, not to correct errors of state law.
(1993).
Herrera v. Collins, 506 U.S. 390, 400
Even when a petition which actually involves state law issues is Acouched in terms of
equal protection and due process,@ this limitation on federal habeas corpus review is of equal
force.
See Willeford v. Estelle, 538 F.2d 1194, 1196-98 (5th Cir. 1976).
A violation of
Florida=s jurisdictional mandates does not raise a federal constitutional issue for which federal
habeas relief may be granted.
See Cook v. Morrill, 783 F.2d 593, 595-96 (5th Cir. 1986);
Caudill v. Scott, 857 F.2d 344, 345-46 (6th Cir. 1988).
Second, the Court agrees with Respondent that to the extent Petitioner attempts to allege
a federal constitutional violation, the claim is procedurally defaulted because he failed to fairly
present such a claim to the state courts. When Petitioner raised this claim on appeal from his
resentencing, he framed his argument only in terms of state law (Respondent=s Ex. 10 - Initial
Brief, pp. 9-16). For a habeas petitioner to fairly present a federal claim to state courts:
12
It is not sufficient merely that the federal habeas petitioner has been through the
state courts . . . nor is it sufficient that all the facts necessary to support the claim
were before the state courts or that a somewhat similar state-law claim was made.
Rather, in order to ensure that state courts have the first opportunity to hear all
claims, federal courts Ahave required a state prisoner to present the state courts
with the same claim he urges upon the federal courts.@ While we do not require a
verbatim restatement of the claims brought in state court, we do require that a
petitioner presented his claims to the state court “such that a reasonable reader
would understand each claim=s particular legal basis and specific factual
foundation.”
McNair v. Campbell, 416 F.3d 1291, 1302-03 (11th Cir. 2005).
Because Petitioner framed his claim solely as error under state law, rather than federal
constitutional law, he did not fairly present a federal constitutional violation to the state courts.
Consequently, he did not satisfy the exhaustion requirement of ' 2254.
Any attempt by Petitioner now to exhaust state remedies regarding this claim would be
futile under Florida law, since Petitioner may not take a second appeal of his conviction.
Therefore, any federal constitutional claim is procedurally defaulted.
And although the
procedural default may be excused through a showing of cause for the default and prejudice
arising therefrom, see Coleman, 501 U.S. at 750, or a demonstration that failure to consider the
claim will result in a Afundamental miscarriage of justice,@ see Murray, 477 U.S. at 495-96,
Petitioner has failed to show that he is entitled to federal review under either exception to the
procedural bar.
Third and finally, Respondent correctly argues that this claim is procedurally defaulted
because Petitioner waived it by failing to challenge the Indictment prior to entering his plea to
the charges and proceeding to trial. See Jenkins v. State, 6 So. 3d 71, 72 (Fla. 3d DCA 2008)
(Aby proceeding to trial under the information, Jenkins waived any objection to it.@) (citing Fla.
R. Crim. P. 3.140(g) (specifying that any alleged defect as to a signature or oath in an
13
information must be asserted prior to a determination of the case on the merits)). See also
Florida Rule of Criminal Procedure 3.190(c) (providing that a defendant Ashall move to dismiss
the indictment or information either before or at arraignment,@ otherwise the claim is deemed
waived).
Since Petitioner did not move to dismiss the Indictment prior to entering his plea and
proceeding to trial, he waived the claim. In its Answer Brief on appeal, the State raised the
argument that the claim was untimely and waived (Respondent=s Ex. 11). Under these
circumstances, the appellate court=s silent affirmance is presumed to rest on the independent and
adequate state procedural ground. See Ylst v. Nunnemaker, 501 U.S. 797 (1991). Petitioner has
not shown both cause excusing the default and actual prejudice resulting from the bar.
Furthermore, he has not shown that he is entitled to the fundamental miscarriage of justice
exception.
Accordingly, because Ground One is barred from federal review, it does not warrant
federal habeas relief.
Ground Two
In Ground Two, Petitioner asserts eleven claims of ineffective assistance of trial counsel.
Subclaim a
Petitioner complains that trial counsel failed to effectively cross examine State witnesses
Butterfield and Brittingham.
He asserts that there was impeachment material, their prior
statements and depositions, available for counsel to challenge their trial testimony on several
matters, including the following: 1) the gun swap between Pearce and Petitioner; 2) Petitioner’s
statement that his gun jams; 3) the private conversation between Pearce and Petitioner at “We
Shelter America;” 4) Brittingham’s testimony that he felt safe telling Petitioner to get out of his
car; 5) Brittingham’s testimony that he saw Petitioner discard the gun into the water; 6)
14
Brittingham’s testimony regarding when he first saw Butterfield with a gun; 7) Brittingham’s
ability to observe the shootings; 8) the reason Brittingham brought a shotgun; 9) Brittingham’s
“deal” to cooperate with law enforcement; 9) Butterfield’s testimony that Pearce told Petitioner
to break Tuttle’s jaw; and 10) Butterfield’s testimony that after Pearce and Petitioner dropped
him and Brittingham off at the Winn Dixie parking lot, Butterfield walked to another store to
telephone his girlfriend.
Petitioner further complains that counsel should have “brought to light
at trial” that in one of Brittingham’s prior statements he said that the guns were not put into the
trunk of the car, and in his subsequent deposition he testified that they were put into the trunk.
This ineffective assistance of counsel claim was raised in state court in Ground Two,
Subclaim 2 of Petitioner’s Amended Rule 3.850 motion (Respondent’s Ex. 16, pp. 5-12).
denying the claim, the state post-conviction court stated:
Defendant next claims his attorney was ineffective in failing to effectively
impeach witnesses Theodore Butterfield and Heath Brittingham with their prior
inconsistent statements.
A. Heath Brittingham:
1. This witness testified that Defendant switched guns with co-defendant
Faunce Pearce before Defendant shot the victims, Stephen Tuttle and Robert
Crawford. Defendant alleges that if counsel had impeached Brittingham with his
prior inconsistent statements on this issue, it would have changed the outcome of
his trial. The defense's theory at trial was that although Defendant was present
in the car, Pearce was the shooter and Brittingham and Butterfield were covering
for Pearce by naming Defendant as the shooter. Brittingham testified on direct
examination that Defendant switched guns with Pearce before he shot the victims.
Defendant claims Brittingham never mentioned this exchange in his prior
statements. He alleges that in his deposition Brittingham denied knowledge of
how Defendant got Pearce's gun. Defendant claims that impeachment of the
witness would have changed the outcome of the trial as there was no physical or
forensic evidence he shot the victims.
It does not appear from the record that Brittingham made a specific prior
15
In
statement about the actual exchange of guns. However, the record indicates that
Brittingham made prior statements that he saw Defendant with Pearce's gun the
night of the shootings and heard Defendant say that he shot one of the victims
with the .40 caliber gun (Pearce's gun). During his deposition, Brittingham
testified that Defendant admitted shooting the first victim with Pearce's .40 caliber
gun. The witness stated, "Joey [Defendant] said, "Yes, I'm fucking sure. I shot
him in the head with a fucking .40." See December 21, 2000 Deposition, p. 58.
At his January 13, 2000 deposition, this witness testified he saw Defendant with
Pearce's gun the night Defendant shot the victim. Brittingham stated, "Yeah, I
seen him with Faunce's .40 caliber a few times." The prosecutor asked, "When?"
The witness, responded, "I seen him with it that night when he shot them kids."
See January 13, 2000 Deposition, p. 27-28. This court finds that Brittingham 's
trial testimony was, therefore, generally consistent with his prior deposition
statements putting Pearce's gun in Defendant's possession. Accordingly, counsel
cannot be ineffective for choosing not to impeach when there is no available
impeachment.
Further, during cross-examination, counsel got Brittingham to admit that
he was "not sure exactly what they traded" and did not actually see the trade.
See Trial Transcript, p. 491-492, lines 21-25 and 1-6. In addition, Defendant
cannot show any prejudice even if counsel did not impeach the witness with every
prior inconsistent statement that may exist on this issue. The state sought
Defendant's conviction on a premeditated murder theory as well as on a felony
murder theory. The state argued that the victims were held at gunpoint by
Pearce who called for reinforcements. Defendant, Brittingham and Butterfield
all arrived with weapons to assist Pearce. The court, over defense counsel's
objection gave a felony murder instruction to the jury. Trial Transcript, p. 701;
770-774. Accordingly, even if the jury did not believe that Defendant personally
shot the victims, if the jury found Defendant to be an accomplice or participant in
the underlying felony of kidnapping, he can still be found guilty under a felony
murder theory. Moreover, Defendant does not claim Brittingham made any
prior contradictory statements to police as to who shot the victims. He points out
only minor inconsistencies between his trial testimony and his prior statements
regarding details of the shootings.
As will be discussed later in this order, Brittingham and Butterfield
offered consistent testimony that Defendant personally shot the victims. Finally,
any alleged inconsistencies Defendant claims exist between their accounts does
not equate to potential impeachment based on prior inconsistent statements.
Moreover, during closing arguments, defense counsel pointed out the
inconsistencies that existed between the testimony of these two witnesses. He
also emphasized that they were friends of each other and of Pearce but not friends
of the Defendant. Further, he reminded the jury that Brittingham and Butterfield
were not charged with these crimes. Trial transcript, p. 724-757. Therefore, this
Court finds counsel sufficiently cross-examined and impeached Brittingham on
16
this issue with the available impeachment. The Court further finds that Defendant
has not shown how any alleged failure by counsel in this regard affected the
outcome of his trial. Therefore, this claim lacks merit and is denied.
2. Defendant also claims counsel failed to impeach Brittingham's
testimony that he observed Defendant having a private conversation with Pearce
before Pearce ordered the victims into his car. He claims Brittingham never
mentioned this conversation in his prior statements. He argues that this
testimony, which he claims was offered only by Brittingham, caused the jury to
believe Defendant conspired with Pearce to kill the victims.
First, the Court notes that Defendant is incorrect that no witness other than
Brittingham testified to this conversation. After victim Stephen Tuttle testified
that Defendant, Brittingham and Butterfield arrived at the scene in response to
Pearce's call for assistance, the prosecutor asked him: "When they show up, was
Mr. Pearce basically giving the other three commands? Tuttle answered, "That’s
how I would -yeah, I would say so...They were all-they were all talking together
in a little crowd by the side of the passenger side of the car, in front of We Shelter
America [one of the crime scenes]. I don't know what they were saying." Trial
transcript, p. 401, lines 22-25.
Next, the record demonstrates that in a deposition, counsel asked
Brittingham whether Pearce and Defendant were having any conversations the
night of the shootings. Brittingham stated that "they were leaned up talking to
each other pretty much the whole night." See December 21, 2000 Deposition, p.
19.
The witness's deposition testimony was, therefore, consistent with his trial
testimony. Consequently, counsel is not ineffective for failing to impeach when
there is no available impeachment. This claim is refuted by the record and is also
without merit.
Again, the court notes that the state sought Defendant's conviction on a
premeditated murder theory and on a felony murder theory. Even if the jury did
not believe that Defendant planned to shoot and shot the victims, if the jury found
Defendant to be an accomplice or participant in the underlying felony of
kidnapping, he is still equally guilty of first degree murder and attempted first
degree murder. Therefore, Defendant cannot show how he was prejudiced, even
if counsel failed to impeach this witness with every existing inconsistent prior
statement.
3. Defendant alleges next that counsel was ineffective in failing to
impeach Brittingham on his testimony that he saw Butterfield with a gun on the
way to We Shelter America. Brittingham actually testified that he initially did
not see Butterfield with a gun and only saw it after they got in the car on the drive
to We Shelter America. See Trial transcript, p. 461; 464-465. Defendant claims
this contradicted his deposition testimony that he never saw Butterfield with a gun
and a prior statement to the prosecutor that he first saw Butterfield's gun at We
17
Shelter America. Defendant alleges that this impeachment would have shown
how Brittingham changed his story to "cover for Butterfield and match his story".
While it would be ideal for a defense attorney to impeach or cross examine using
every available minor inconsistency between prior statements and trial testimony,
Defendant fails to explain what difference this impeachment would have made at
trial in light of the corroborating consistent testimony from the other witnesses.
Brittingham and Butterfield testified consistently that Defendant was the only one
who got out of the car when the victims were shot. See trial testimony of
Brittingham and Butterfield, attached. The surviving victim, Tuttle, testified that
he was shot after Defendant got out of the car and ordered him out of the car.
Trial transcript, p. 404, lines 20-25, p.405, lines 1-18. Defendant's participation
is therefore corroborated by the other witnesses and his own statement (related by
Butterfield) that Tuttle was the thirteenth or fourteenth person Defendant shot.
Trial transcript, p. 433, lines 21-23. Accordingly, the Court finds that failure to
impeach on this alleged inconsistency would not have made any difference in the
outcome of the trial in light of the other consistent corroborating testimony that
Defendant shot the victims. There is also no real dispute in the testimony that
Defendant was an accomplice in the kidnappings and was present in the car when
the victims were shot. Moreover, there is no testimony from any of the
witnesses that Pearce got out of the car and shot the victims. Tuttle testified that
he was ordered out of the car, Defendant got out of the car and then he was
apparently shot. Trial transcript, p. 404-405. Butterfield testified that Defendant
got out of the car to let Tuttle out. Pearce then told Defendant to break Tuttle's
jaw. Butterfield stated that he heard a gunshot but did not actually see the
shooting as it was nighttime. As noted above, he testified that Defendant said
that Tuttle was the thirteenth or fourteenth person he had shot. Trial transcript, p.
430-433.
Brittingham testified that Pearce and Defendant ordered Tuttle out of
the car, Pearce ordered Defendant to "pop him in the jaw'', but Defendant instead
shot Tuttle in the head. Trial transcript, p. 472-477. He testified further that
Defendant then admitted, "I shot him in the head with an F'ing .40" Transcript, p.
475, lines 5-6. Brittingham testified that Defendant told the other victim
(Crawford) to get out of the car and that he saw Defendant shoot him twice. Trial
transcript, p. 475-477. Moreover, as previously discussed, defense counsel
pointed out during closing argument all the inconsistencies that existed between
the witnesses' testimony and between their trial testimony and prior statements.
Trial transcript, p. 725-757.
Accordingly, this claim is refuted in the record and
lacks merit. This claim is denied.
4. Next, Defendant claims counsel failed to impeach Brittingham's trial
testimony that he felt safe ordering Defendant out of the car after he saw
Defendant throw away the murder weapon. He alleges that this testimony
conflicts with his deposition testimony that Defendant forced him with a 9mm
pistol to take him to a train station after the shootings. He also claims that this
trial testimony conflicts with a prior statement that Brittingham "slept from the
time he was picked up from the Winn Dixie parking lot until he returned to
18
Damian Smith's house." However, Brittingham did not testify on direct
examination that he ordered the Defendant out of his car or even that he felt safe
ordering the Defendant out of his car when he drove him to the bus station.
Instead, he testified that he drove Defendant to the bus station and to another
destination after he could not buy a bus ticket. Trial transcript, p. 480-481.
Accordingly, the court finds that this claim is refuted in the record and lacks
merit. This claim is therefore denied.
However, the court notes that on cross examination, defense counsel
impeached this witness on this issue with a deposition where he stated he told
Defendant, of whom he was allegedly afraid, to "get the fuck out of my car".
Trial transcript, p.499-501.
5. Defendant argues that counsel was ineffective for failing to adequately
impeach Brittingham on his ability to observe the shootings. Brittingham
testified at trial that he saw Defendant shoot Tuttle in the back of the head. The
prosecutor asked, "And you actually saw that?" The witness responded, "As
much as you can see. It was in the middle of the night, and it was dark, and
there
wasn't no street lights." He also testified that, " ... I looked at him, and I seen the
flashing from the barrel and I seen the kid start to fall. And I just looked back
forward...." Trial transcript, p. 472-474. The prosecutor asked the witness to
state exactly what he observed. Brittingham testified, "I turned, and I looked at
Joey just as he said, 'F that'. And I was wondering what he was going to do. And I
looked at him, and I seen the kid start to fall. And I just looked back forward...."
He testified that he saw the gun in Defendant's hand after he shot Tuttle.
Transcript, p. 474, lines 24-25. He also testified that Pearce asked Defendant if
Tuttle was dead and Defendant responded, "Yeah, he's dead. I shot him in the
head with an F'ing .40." Trial transcript, p. 475, lines 4-6. Brittingham further
testified that they drove on and Defendant told Robert Crawford to get out of the
car. He stated, "Joey fired a shot, and I seen the kid fall. And then Joey stood
over top of him, and he fired again." He continued to describe the shooting in
great detail. Trial transcript, p. 475-476. Defendant alleges that in a prior
statement, Brittingham claimed he could not see either victim and that counsel
failed to impeach him with this inconsistency. However, the record shows that
defense counsel got Brittingham to admit that it was dark when both victims got
out of the car and that there were no street lights. He also admitted that he was
not able to see either victim after they got out of the car. Trial transcript, p. 493
and 494, 15-19. Brittingham also admitted on cross-examination that he was a
friend of Butterfield and Pearce, but was not friendly with Defendant. Trial
transcript, p. 494-496.
Ideally, counsel can point out every inconsistency that may exist between
a witness's trial testimony and all prior statements or depositions.
However, the
court does not find counsel deficient for failing to point out every potential
19
inconsistency between the witnesses' prior statements and trial testimony.
Moreover, on cross-examination, defense counsel got Brittingham to admit that it
was dark where the victims were shot and was not able to see either victim,
contrary to his testimony on direct examination. Accordingly, the Court finds
that counsel was not ineffective in his cross examination of Brittingham for not
attempting to impeach the witness on every potential inconsistency about his
ability to see the shootings. The court finds that this claim lacks merit and is
refuted in the record. This claim is, therefore, denied.
6. Defendant claims that counsel was ineffective for failing to impeach
Brittingham on his testimony that he took his shotgun to the first crime scene (We
Shelter America) because he was afraid it would get stolen if he left it in his car.
He claims that he previously told police that he brought the gun because
Butterfield told him to. On direct examination, Brittingham testified that he
brought his shotgun to We Shelter America and put it in Pearce's car. Trial
transcript, p. 465-466. On cross-examination, counsel asked him whether
Butterfield asked him to come with him to assist Pearce. Brittingham denied that
Butterfield specifically asked him to come. Trial transcript, p. 485-486. First,
the court finds that contrary to Defendant's contention, counsel attempted to
impeach Brittingham's testimony. However, Brittingham denied that Butterfield
had specifically asked him to come with the others to We Shelter America.
Therefore, this Court finds that this claim is refuted in the record and should be
denied on that basis alone. Moreover, as previously discussed, counsel can ideally
impeach a witness on every small inconsistency that may exist between a
witness's trial testimony and all prior statements or depositions in an attempt to
attack the credibility of the witness. However, the Court finds that Defendant
has specifically failed to show how he was prejudiced in this regard. Again,
there is an abundance of other corroborating testimony in this record that
Defendant was, at the very least, an accomplice in the kidnapping of the victims
and abundant consistent testimony that he personally shot the victims. In addition,
counsel discussed Brittingham's inconsistent statements during closing arguments.
Defendant cannot, therefore, establish any prejudice in regard to counsel's
alleged failure to impeach this witness using all prior inconsistent statements.
This claim is denied.
B. Theodore Butterfield
1. Defendant alleges that if counsel had impeached Butterfield with his
prior inconsistent statements, it would have changed the outcome of the trial.
Butterfield testified on direct examination that Defendant switched guns with
Pearce because Defendant's 9mm gun jammed. Defendant claims Butterfield did
not mention this in a September 15, 1999 statement to police and further did not
mention it until his March 26, 2001 deposition. He claims counsel was
ineffective in failing to impeach the witness with this omission. However, the
record refutes this claim. During cross examination, counsel asked Defendant,
20
"When you gave... your sworn statement to Mr. Van Allen on September 15,
1999... you didn't say anything about any switching of guns; isn't that correct?"
Defendant answered, "No, sir." He added, "I did say they switched guns." Trial
transcript, p. 457-458. Counsel thus made the jury aware that Butterfield
apparently gave a prior inconsistent statement about Defendant switching guns
before shooting the victims, even though he denied making the inconsistent
statement. Also, during closing argument, counsel told the jury: "He doesn't say
anything about this, the switch of this - this alleged switch of guns- until later
when he's giving a deposition. But earlier he makes absolutely no explanation of
any switch of guns between Mr. Pearce and Mr. Smith." Trial transcript, p.
739-740. This court also finds that counsel's impeachment on this issue was
sufficient and that further impeachment would not have made any difference at
trial in light of the other corroborating testimony about Defendant's participation
in these offenses. This claim is refuted by the record and lacks merit. This claim
is denied.
2. Defendant also claims counsel was ineffective in failing to impeach
Butterfield on his trial testimony that Defendant asked Pearce to trade guns prior
to shooting the victims, because Defendant's gun jammed. He appears to claim
that in a prior statement Butterfield claimed Defendant asked Pearce to trade guns
after the shootings, when he threw away the murder weapon. As previously
discussed, counsel can ideally impeach a witness on every small inconsistency
that may exist between a witness's trial testimony and all prior statements or
depositions in an attempt to attack the credibility of the witness. The court finds
that Defendant has specifically failed to show how he was prejudiced in regard to
this alleged failure to impeach. Again, there is an abundance of corroborating
testimony in the record that Defendant was, at the very least, Pearce's armed
accomplice in the kidnapping of the victims. There is also ample evidence in the
record that he personally shot the victims. He cannot, therefore, establish any
prejudice in regard to counsel's alleged failure to impeach Butterfield using all
alleged prior inconsistent statements.
3. Defendant claims that in prior statements Butterfield revealed that he
made a deal with the police to avoid criminal charges. He claims counsel was
ineffective for not objecting when the prosecutor told the jury that Butterfield had
no motive to lie at trial. On direct examination, Butterfield admitted that he
initially lied to investigators and gave several different versions of the events to
investigators. He then decided to cooperate with the police. Trial transcript, p.
438-439. On cross examination, defense counsel got Butterfield to admit that he
initially lied to the police but then cooperated fully with police and therefore had
not been charged with any crimes regarding this case. Trial transcript, p. 444,
lines 17-21; 445-446. Counsel also pointed out during cross-examination that
Butterfield had several motives to lie about the facts of this case: Butterfield
described the drug money that Pearce was attempting to recover from the victims
as "our money"; he had conducted previous drug deals with Pearce; he knew
21
Pearce from working together in the fireworks business; he owed Pearce money
and he was friends with Brittingham and Pearce but was only an acquaintance of
the Defendant. Trial transcript, p. 443-444; 459-460. Finally, during closings,
counsel argued that the jury should discount Butterfield's testimony as he was not
charged with the shootings or any other crimes "regardless of any activities that
he was involved in on September 13." Trial transcript, p. 738-739. Accordingly,
the Court finds that counsel sufficiently cross examined Butterfield and argued to
the jury that Butterfield was not a trustworthy witness. Accordingly, this claim
is refuted by the record and lacks merit. This claim is denied.
4. Butterfield testified that Pearce told Defendant to break Tuttle's jaw.
Defendant claims he never disclosed this in a prior statement and counsel failed to
impeach him on this testimony. As previously discussed, counsel can ideally
impeach a witness on every inconsistency that may exist between a witness's trial
testimony and all prior statements or depositions in an attempt to attack the
credibility of the witness. The court finds that Defendant has specifically failed
to show how he was prejudiced in regard to this alleged failure to impeach.
Again, there is an abundance of corroborating testimony in the record that
Defendant was an accomplice in the kidnapping of the victims, was present in the
car, and that he personally shot the victims. He cannot, therefore, establish any
prejudice in regard to counsel's alleged failure to impeach Butterfield using all
purported omissions from prior statements or inconsistent statements. This
claim is denied.
5. Butterfield testified on direct examination that after the shootings
Defendant and Pearce dropped him and Brittingham in a grocery store parking lot
and ordered them to wait. He testified that he walked across the street to use the
phone and waited for thirty or forty minutes for Defendant and Pearce to return.
Trial transcript, p.436. Defendant claims that in a deposition Butterfield stated he
was afraid he was being watched and thought he might be shot if he used the
telephone. He claims counsel was ineffective in failing to cross examine on this
inconsistency. However, on cross examination, counsel got Butterfield to admit
that he did not run away, did not call the police and even walked across the street
to use the phone and get a drink, even though he stated he was threatened by
Defendant. Trial transcript, p. 448-449. The Court finds counsel successfully
impeached the witness by pointing out that his actions belied his testimony that he
was afraid of Defendant. The Court also finds that counsel was not ineffective
in this regard. As discussed above, counsel can ideally impeach a witness on
every inconsistency that may exist between a witness's trial testimony and all
prior statements or depositions in an attempt to attack the credibility of the
witness. Defendant has specifically failed to show how counsel was deficient
and that he was prejudiced in regard to any failure to impeach on this point.
Defendant has not, therefore, established any prejudice in regard to counsel's
purported failure to impeach Butterfield using all alleged omissions from prior
statements or inconsistent statements. This claim is denied.
22
6. Defendant alleges counsel was ineffective for failing to point out to the
jury the inconsistencies between testimony and statements given by Butterfield
and Brittingham. As previously discussed, at closing counsel vigorously
emphasized the inconsistencies in the witness testimony. Trial transcript, p.
725-757. This claim is refuted in the record and is, therefore, denied.
(Respondent’s Ex. 17, pp. 5-13).
The state post-conviction court found that defense counsel sufficiently cross-examined
and impeached Butterfield and Brittingham regarding inconsistencies between their testimony
and prior statements and pointed out in closing the inconsistencies between their trial testimony
and between their trial testimony and prior statements. The court further found that Petitioner
failed to demonstrate that additional impeachment using all prior inconsistent statements would
have produced a different result at trial.
The court concluded that Petitioner failed to
demonstrate either deficient performance or prejudice.
1. The gun swap
The first inconsistency identified by Petitioner is Butterfield and Brittingham’s testimony
that Pearce and Petitioner switched guns before the shootings. He asserts that defense counsel
should have impeached them with the fact that neither of them mentioned the gun swap in their
statements to police or the State Attorney, Brittingham never mentioned it in his deposition, and
Butterfield never mentioned it until his March 26, 2001 deposition.
The transcript of Brittingham’s statement to the State Attorney reveals that although he
never mentioned that Pearce and Petitioner switched guns, he never was asked a question that
would have elicited that answer (Doc. 56, Exhibit 1). 3
Moreover, he did state that Petitioner
had the .40 caliber, rather than the 9mm he previously had, when he shot the victims (Id.,
3 Butterfield and Brittingham’s statements to law enforcement are not included in the record before this Court.
23
transcript pp. 12, 19).
with a fucking .40.”
He further stated that Petitioner said to Pearce, “I shot him in the head
(Id., transcript p. 20). And the transcript of his first deposition shows that
he stated that he saw Petitioner with Pearce’s gun the night of the shootings (Doc. 56, Exhibit 2,
transcript pp. 27-28).
Additionally, during his second deposition Brittingham again testified
that Petitioner said he shot Tuttle with a .40 caliber (Doc. 56, Exhibit 3, transcript p. 15).
Accordingly, the state post-conviction court’s finding that Brittingham’s trial testimony with
respect to the gun swap was “generally consistent with his prior deposition statement putting
Pearce’s gun in [Petitioner’s] possession” was not unreasonable.
Therefore, defense counsel
did not render deficient performance in failing to question Brittingham about omitting the fact of
the gun swap in his prior statement(s) and depositions.
Moreover, as the state post-conviction
court correctly found, defense counsel sufficiently impeached Brittingham with regard to the gun
swap by getting him to admit that he never actually saw Pearce and Petitioner swap the guns and
was “not sure exactly what they traded” (Respondent’s Ex. 34, transcript pp. 491-92).
The transcript of Butterfield’s statement to the State Attorney reveals that even though he
did not mention the gun swap, he was not asked how Petitioner came into possession of Pearce’s
gun (Doc. 56, Exhibit 4).
And the transcript of his deposition shows that he mentioned the gun
swap (Doc. 56, Exhibit 5, transcript p. 16).
Therefore, Butterfield’s prior statement and
deposition testimony is not inconsistent with his trial testimony regarding the gun swap.
Moreover, defense counsel made the jury aware that Butterfield had previously omitted any
mention of a gun swap in his statement to the State Attorney (Respondent’s Ex. 34, transcript pp.
457-58; Ex. 36, transcript pp. 739-40).
The state post-conviction court’s conclusion that Petitioner failed to show either deficient
performance or prejudice with regard to defense counsel’s impeachment of Butterfield and
24
Brittingham concerning the gun swap was not an unreasonable application of Strickland.
2. Petitioner’s comment that his gun jams
During trial, Butterfield testified that before Pearce and Petitioner swapped guns, and
before the shootings, Petitioner said to Pearce that his “pistol jams.” (Respondent’s Ex. 34,
transcript p. 430).
Petitioner contends that counsel was ineffective in failing to impeach
Butterfield with his prior sworn statement during which he indicated that after the shooting,
Petitioner had made a comment that the .40 shot better because it did not stick (See Doc. 56,
Exhibit 4, transcript p. 33).
Petitioner has failed to demonstrate deficient performance.
First, the content of the
sworn statement regarding this issue is consistent with Butterfield’s trial testimony that Petitioner
had made a comment to Pearce that the .40 caliber did not “stick” or “jam” like Petitioner’s 9mm
handgun.
Moreover, the sworn statement and trial testimony are not inconsistent because
Petitioner may have made comments regarding the gun sticking or jamming both before and after
the shootings. Second, had defense counsel used the sworn statement to attempt to impeach
Butterfield, it would have highlighted that Petitioner had made statements that his 9mm handgun
would “jam,” and that is why he swapped guns with Pearce. Accordingly, Petitioner is entitled
to no relief with regard to his claim that defense counsel failed to impeach Butterfield with
respect to when Petitioner commented that his handgun “jams.”
3. Pearce and Petitioner’s “private” conversation
During trial, Brittingham testified that after he, Butterfield, and Smith were dropped off
at “We Shelter America,” they entered Loucks’ home with Pearce, and Pearce started a
conversation with Petitioner, which Brittingham could not hear (Respondent’s Ex. 34, transcript
p. 465-66).
Petitioner contends that counsel should have impeached Brittingham with his prior
25
statements and depositions that showed he never previously stated that Pearce and Petitioner had
a “private conversation” while inside Loucks’ home.
He argues that he was prejudiced by the
testimony because the State used it to argue that “there was a discussion unheard by anyone, that
occurred between Lawrence Joey Smith and Faunce Pearce before they got in that car” and
imply that Pearce and Petitioner plotted to kill the victims (Respondent’s Ex. 36, transcript p.
785).
In evaluating this claim, the Court must keep in mind that “[j]udicial scrutiny of
counsel’s performance must be highly deferential,” and courts should make every effort to
“eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689.
Moreover, “[a] hindsight review of any cross-examination will
unquestionably reveal an opportunity to ask one more question or highlight one more point;
however, in the midst of a trial with an adverse witness on the stand, a lawyer must always make
split-second decisions as to how to best shape his questioning in order to extract the most
desirable responses.” Yarbrough v. Johnson, 490 F. Supp. 2d 694, 738-739 (E.D. Va. 2007).
Here, even if Brittingham never previously stated that he saw Pearce talking to Petitioner
inside Loucks’ office, at best it would have been a minor omission or inconsistency.
The
statement was made only once at trial, and Brittingham testified that he did not hear what they
were saying.
Moreover, although during closing argument the prosecutor may have referenced
this conversation between Pearce and Petitioner (see Respondent’s Ex. 36, transcript p. 785), the
prosecutor did not state that Pearce and Petitioner hatched a plan to kill the victims at that time.
And, as the state post-conviction court correctly noted, witnesses testified that there were other
occasions that night when Pearce and Petitioner were talking to each other.
26
This Court therefore finds no deficiency in counsel not using Brittingham’s prior
statements and depositions to attempt to impeach Brittingham regarding his testimony that
Petitioner started a conversation with Pearce inside Loucks’ office.
4. Butterfield’s testimony that he felt safe telling Petitioner to get out of his car
because he saw Petitioner throw the gun into the water
Brittingham testified at trial that after the shootings, after Petitioner had thrown the gun
in the water, and after bringing Petitioner to the bus station, he drove Petitioner to a
neighborhood and told him to get out of his car (Respondent’s Ex. 34, transcript pp. 499-51).
When defense counsel questioned him about directing Petitioner to get out of the car when he
was allegedly afraid that Petitioner might kill him (see id., transcript pp. 500-01), Butterfield
explained “I seen [Petitioner] throw the pistol that he used to kill the two boys, out the window
and in the water, I didn’t feel that he could shoot me with that gun anymore.” (Id., transcript p.
501).
Petitioner contends that counsel should have impeached Brittingham with his
inconsistent deposition testimony in which he stated that he was forced to take Petitioner to the
bus station because Petitioner had the 9mm handgun and told him that he would shoot him if he
did not take him to the station (Doc. 56, Exhibit 3, transcript p. 22).
It is apparent from the trial transcript that the point of defense counsel’s
cross-examination of Brittingham with respect to this matter was to show that Brittingham was
not afraid of Petitioner because Petitioner was not the shooter and never threatened anyone (See
Respondent’s Ex. 34, transcript pp. 499-501).
During closing, counsel argued that Brittingham
was not afraid of Petitioner because he and Butterfield waited in the Winn Dixie parking lot for
an hour after Pearce and Petitioner dropped them off rather than leaving or calling the police, got
back into Pearce’s car when Pearce and Petitioner returned, and later told Petitioner to “get the
27
fuck out of my car.” (Respondent’s Ex. 36, transcript pp. 747-49).
Therefore, pointing out that
Brittingham had testified that Petitioner had the 9mm handgun and had threatened to shoot him if
he did not drive him to the bus station would have weakened counsel’s argument that
Brittingham was never afraid of Petitioner, and likely weakened Petitioner’s defense that he was
not the shooter.
Accordingly, counsel was not ineffective in failing to attempt to impeach
Brittingham with this statement. 4
5. When Brittingham first saw Butterfield’s gun
During trial, when Brittingham was asked whether he saw Butterfield with a weapon
when they left to go meet Pearce at “We Shelter America,” he answered, “No, not when we left.
I didn’t see it until after we were in the car.”
(Respondent’s Ex. 34, transcript p. 465).
Petitioner contends that counsel should have impeached Brittingham with his sworn statement
during which he stated that he first saw Butterfield’s gun when they were at “We Shelter
America,” and his deposition during which he testified that he first saw Butterfield’s gun after
they left “We Shelter America.”
He argues that this would have shown that Brittingham
constantly changed his story to cover for Butterfield.
During his sworn statement, Brittingham stated that he became aware that there were
other weapons when they pulled up to “We Shelter America.” (Doc. 56, transcript pp. 10-11).
Arguably, that statement is not inconsistent with Brittingham’s trial testimony because he did not
4 Petitioner further alleges that Brittingham’s trial testimony that he witnessed Petitioner throw the .40 caliber gun
into the water is contradicted by a handwritten statement that Brittingham gave to police the day after the shootings
in which he allegedly said he was sleeping between the time he and Butterfield were picked back up from the Winn
Dixie parking lot to when he arrived at Damian Smith’s house that morning. However, because the handwritten
statement is not in the record, the Court cannot determine whether Brittingham’s trial testimony was inconsistent
with his handwritten statement. Moreover, Petitioner cannot show prejudice because even if Brittingham was
asleep in Pearce’s car at the time the gun was thrown into the water, Butterfield also testified that Petitioner threw
the gun into the water (Respondent’s Ex. 34, transcript pp. 436-37). Additionally, in both his sworn statement and
deposition, Brittingham testified that Petitioner threw the gun into the water (Doc. 56, Ex. 1, transcript pp. 26-27;
28
specify where they were when he saw the guns “in the car.” Brittingham’s testimony during his
deposition that he did not see Butterfield with a weapon until after they got into Pearce’s car to
leave “We Shelter America” (see Doc. 56, Exhibit 3, transcript pp. 46-47) may be inconsistent
with his trial testimony.
Nevertheless, the moment Brittingham first saw that Butterfield had a
gun was essentially immaterial to the case, especially considering the evidence established that
Butterfield had a gun and was in Pearce’s car when the victims were kidnaped and shot.
Counsel’s failure to highlight minor inconsistencies on largely immaterial matters was not
ineffective assistance of counsel. See, e.g., Campbell v. United States, 364 F.3d 727, 735 (6th
Cir.2004); Allen v. Woodford, 395 F.3d 979, 999 (9th Cir. 2005) (there is no ineffective
assistance where defense counsel decides not to impeach a witness over inconsequential
matters).
6. Brittingham’s ability to observe the shootings
Petitioner contends that counsel should have impeached Brittingham’s trial testimony
regarding what he saw during the shootings with his prior inconsistent statements.
he testified that he saw Petitioner shoot both victims.
During trial,
However, he admitted that it was dark,
there were no lights, and he could not actually see the victims when they were shot
(Respondent’s Ex. 34, transcript pp. 474, 476, 494).
When he gave his statement to the State
Attorney, he said that he could not see Tuttle when he was shot because “of the metal on the side
of the car” (Doc. 56, Ex. 1, transcript p. 19), and he could not see Crawford when he was shot
because he was looking at Butterfield at the time (Id., transcript p. 22).
Brittingham’s trial
testimony and sworn statement therefore were consistent to the extent Brittingham stated that he
was not able to see the victims clearly when they were shot.
Ex. 3, transcript p. 20).
29
Only Brittingham’s explanation of
why he could not see the victims varied.
And counsel impeached Brittingham with that
inconsistency by making the jury aware that Brittingham had made a prior statement that he did
not see Crawford when he was shot because he was looking the other direction at Butterfield
(Respondent’s Ex. 36, transcript pp. 503-04).
During his deposition, when Brittingham was asked whether he saw Petitioner shoot
Tuttle, he answered, “Yes, sir, I saw it.
3, transcript pp. 13-14).
answered, “Yes, sir.”
That’s something I will never forget.” (Doc. 56, Ex.
When he was asked whether he saw Petitioner shoot Crawford, he
(Id., transcript p. 14).
And when he was asked how many times
Crawford was shot, he answered, “He shot at him once, and then he stood over top of him while
he was on the ground, and he shot him again.”
(Id.).
On examination by defense counsel,
Brittingham testified that he could see Petitioner when he shot Tuttle and saw him stick the gun
approximately six inches to a foot from Tuttle’s head as he shot him (Id., transcript pp. 55-57).
When asked if he saw Petitioner shoot Crawford, he answered, “Yes, sir, I seen it.
flash from the barrel.
I seen the kid.
I seen the
He had his hands up.” (Id., transcript p. 60).
This prior testimony appears at least slightly inconsistent to Brittingham’s trial testimony.
Nonetheless, defense counsel elicited from Brittingham testimony that during the shootings it
was too dark to see well, and he could not even see the victims when they were shot.
Since
Brittingham admitted upon cross-examination that it was very difficult to see the shootings, there
was no need to impeach him with respect to his ability to see the shootings.
There would not
have been much value in attempting to impeach Brittingham with prior statements that may have
refreshed his memory about facts that were more damaging to the defense.
Accordingly,
defense counsel’s failure to attempt to impeach Brittingham with these prior statements and
testimony was neither unreasonable nor prejudicial.
30
7. Brittingham’s reason for bringing a shotgun
During cross-examination at trial, Brittingham testified that he brought a shotgun to “We
Shelter America” because he “didn’t want to leave it in [his] car. [He] was afraid it would get
stolen.” (Respondent’s Ex. 34, transcript pp. 484-85).
Petitioner contends that counsel should
have impeached Brittingham with a videotaped interview he gave to police the day after the
shootings during which he allegedly stated that he brought the shotgun with him because
Butterfield asked him to bring it, and he did not know “what kind of a situation he was walking
into.” Petitioner argues that this would have been another example of Brittingham “covering”
for Butterfield or attempting to match Butterfield’s story.
Because the videotaped interview is not in the record, it cannot be determined whether
Brittingham’s statements during the interview are inconsistent with his trial testimony.
Moreover, counsel adequately cross-examined Brittingham concerning his testimony that he
brought the shotgun because he was worried that it would be stolen by getting Brittingham to
admit that he brought shotgun shells as well and brought both the shotgun and the shells when
they subsequently left in Pearce’s car (Respondent’s Ex. 34, transcript pp. 485-86).
This
implied that Brittingham brought the shotgun to use it rather than to prevent it from being stolen.
Furthermore, when Brittingham testified that he put the shells on the floor of Pearce’s car,
counsel impeached Brittingham with his deposition testimony where he testified that he “took
[his] shotgun, but [] didn’t take [his] box of shells,” and his prior sworn statement where he
stated that he “left [his] shotgun shells in the glove compartment.”
(Id., transcript pp. 486-89).
And during closing argument, counsel reminded the jury of the inconsistencies between
Brittingham’s trial testimony and prior statements regarding the shotgun (Respondent’s Ex. 36,
transcript p. 745).
Accordingly, defense counsel adequately impeached Brittingham regarding
31
his reason for bringing his shotgun.
8. Butterfield’s deal with police to cooperate to avoid criminal charges
Petitioner contends that in Butterfield’s statement to the State Attorney and deposition, he
testified that he made a deal with the police to cooperate if no criminal charges were pressed
against him.
He argues that counsel was ineffective in failing to alert the jury to the deal
Butterfield made with the police, and he was prejudiced because the State was therefore able to
argue that Butterfield had no incentive to lie.
This claim is belied by the record.
First, as discussed in more detail below in addressing
Ground 3 of the petition, Petitioner has failed to demonstrate that there was a “deal” between
Butterfield and police that no charges would be brought against Butterfield if he cooperated.
Butterfield specifically testified during his deposition that there was no deal between him and
either law enforcement or the State Attorney (Doc. 56, Ex. 5, transcript p. 30).
At most,
Butterfield indicated that the police told him that it would be to his benefit to cooperate and tell
the truth (Id.; Doc. 56, Ex. 4, transcript p. 39). Second, defense counsel adequately impeached
Butterfield by getting him to admit that he initially lied to the police but then cooperated fully
and therefore had not been charged with any crimes (Respondent’s Ex. 34, transcript, pp.
444-46).
And during closing argument, defense counsel reminded the jury that despite
Butterfield’s participation, he was not charged with any offense (Respondent’s Ex. 36, transcript
pp. 738-39).
Accordingly, counsel adequately apprised the jury that Butterfield had an
incentive to lie and cooperate with police.
9. Pearce told Petitioner to break Tuttle’s jaw
During trial, Butterfield testified that after he, Pearce, Petitioner, Brittingham, Tuttle, and
Crawford drove approximately two to three miles away from “We Shelter America,” Pearce
32
stopped the car and ordered Tuttle to get out of the car (Respondent’s Ex. 34, transcript p. 430).
After Petitioner got out of the car to let Tuttle out, Butterfield heard Pearce tell Petitioner “to
break [Tuttle’s] jaw” for getting his money ripped off (Id.). Petitioner contends that counsel
was ineffective in failing to impeach Butterfield with his sworn statement to the State Attorney
in which he stated that he did not hear Pearce tell Petitioner to break Tuttle’s jaw.
He argues
that this was “yet another example of how. . .Butterfield and Brittingham[] continuously change
their stories in order to match one another.”
(Doc. 1, docket p. 16).
The transcript of Butterfield’s deposition reveals that when Butterfield was asked,
“[Pearce] didn’t say anything about breaking his jaw or anything like that?”, he answered “I
didn’t hear nothing like that.
No, sir.” (Doc. 56, transcript p. 22).
Nonetheless, Butterfield
stated that Pearce told Petitioner to “punch [Tuttle] in his mouth” just before Petitioner shot
Tuttle (Id., transcript pp. 21-22).
Therefore, had counsel attempted to use the prior sworn
statement to impeach Butterfield concerning this matter, it likely would have done more harm to
his defense than good because the jury would have heard that the day after the shootings
Butterfield gave a statement that was consistent with his trial testimony that Petitioner let Tuttle
out of the car, and Pearce told Petitioner to punch Tuttle in the mouth just before Petitioner shot
Tuttle. The minor inconsistency between the two statements - - “punch him in the mouth” and
“break his jaw”- - is not significant when weighed against the generally consistent testimony
Butterfield presented in his prior statement and at trial.
Accordingly, counsel was not deficient
in failing to impeach Butterfield regarding this matter.
10. Butterfield’s actions after the shootings
During trial, Butterfield testified that after the shootings he and Brittingham were
eventually dropped off by Pearce and Petitioner at a Winn Dixie (Respondent’s Ex. 34, transcript
33
p. 436).
He further testified that he and Butterfield went inside the Winn Dixie “to see what
time it was” and “walked to a Circle K to use that phone over there.”
(Id.). On
cross-examination, he added that they went to use the phone at the Circle K to call his girlfriend
to “let her know [he] would be home in a little while.”
Petitioner contends that counsel should have impeached Butterfield regarding this
testimony with his deposition where he testified that he and Brittingham stayed at the Winn
Dixie “[b]ecause [they] didn’t know if [Pearce and Petitioner] could see [them], if [Pearce and
Petitioner] were watching [them]. If [they] tried to call the police, if [Pearce and Petitioner]
would shoot [them].
[They] didn’t know what to expect.” (Doc. 56, Ex. 5, transcript p. 26).
He argues that this testimony was inconsistent with Butterfield’s trial testimony that he left the
Winn Dixie to walk to the Circle K to use the telephone to call his girlfriend.
Counsel was not ineffective in failing to impeach Butterfield with this deposition
testimony.
First, the deposition testimony was essentially consistent with the trial testimony.
During his deposition, Butterfield testified that he and Brittingham stayed at the Winn Dixie
because they were afraid that Pearce and Petitioner could be watching them and might shoot
them if they called the police (Id.).
And at trial, Butterfield also testified that he and
Brittingham “stayed right there and waited for [Pearce and Petitioner]” because earlier they had
been threatened by Pearce and Petitioner (Respondent’s Ex. 34, transcript p. 449). The only
variation between the testimony is that at trial Butterfield added the detail that they had walked
across the street to attempt to use the telephone to call Butterfield’s girlfriend.
That testimony
is not wholly inconsistent with Butterfield’s deposition testimony that they stayed at Winn Dixie
because they were unsure if they were being watched and were afraid they might be shot if they
called the police.
34
Second, even if the trial and deposition testimony could be considered inconsistent,
attempting to impeach Butterfield with his deposition testimony likely would have done him
more harm than good.
His trial testimony that he and Brittingham walked to Circle K to use the
telephone tended to show that he and Brittingham may not have been as afraid of Pearce and
Petitioner as they claimed to be. This testimony therefore supported the defense’s theory that
Butterfield and Brittingham were not afraid of Petitioner because he never shot or threatened
anyone that night.
As the state post-conviction court stated, “counsel successfully impeached
[Butterfield] by pointing out that his actions belied his testimony that he was afraid of
[Petitioner].” Attempting to impeach Butterfield with prior testimony that he and Brittingham
felt compelled to remain at the Winn Dixie out of fear that they were being watched and could be
shot would have weakened Petitioner’s defense.
Accordingly, counsel was not ineffective in
failing to impeach Butterfield with this deposition testimony.
11. Testimony regarding whether guns were placed in the trunk of Pearce’s car
after the shootings
During trial, Brittingham testified that his shotgun remained with him in Pearce’s car
until it was placed into the trunk of Pearce’s car after the shootings (Respondent’s Ex. 34,
transcript pp. 490-91).
Petitioner contends that counsel “should have brought to light” that
Brittingham had given a statement to the State Attorney in which he said that the trunk of the car
was never opened after the shootings, but subsequently testified during his deposition that the
guns were placed in the trunk after the shootings.
He argues that the inconsistency between
Brittingham’s initial statement to the State Attorney and his deposition and trial testimony would
have shown the jury that Brittingham changed his testimony to “match” Butterfield’s statement
to the State Attorney that all the guns were placed in the trunk after the shootings.
35
Whether the guns were placed into the trunk sometime after the shootings was an
inconsequential matter in the trial.
Moreover, as the state post-conviction court correctly stated,
defense counsel vigorously emphasized several inconsistencies in the witness testimony.
(Respondent’s Ex. 36, transcript pp. 725-57).
Additionally, defense counsel impeached both
Butterfield and Brittingham’s trial testimony, on numerous issues, with their prior inconsistent
statements, and argued that, considering these inconsistencies, they were not credible witnesses.
It is apparent that Petitioner’s defense was not prejudicially impacted merely because defense
counsel could have elicited this additional impeachment information on cross-examination.
Petitioner has not demonstrated that the state court’s denial of this claim was contrary to,
or involved an unreasonable application of, federal law, nor has he established that the decision
was based on an unreasonable determination of the facts in light of the evidence presented.
Accordingly, Ground Two, Subclaim a does not warrant federal habeas relief.
Subclaim b
Petitioner contends that defense counsel was ineffective in failing to elicit crucial
testimony from Tuttle.
According to Petitioner, Tuttle could have testified that 1) Petitioner
never told him or the other victim, Crawford, to get into the car, 2) no one threatened him to get
into the car, and 3) he never stated that he did not want to get into the car.
Petitioner argues that
this testimony 1) would have shown that Petitioner was unaware that Pearce was kidnaping
Tuttle and Crawford, and did nothing to assist Pearce in kidnaping them, and 2) would have
negated the jury=s findings for felony murder predicated on the kidnaping.
In state court, Petitioner raised this claim in Ground 3, Subclaim 3 of his Amended Rule
3.850 motion (Respondent=s Ex. 16, p. 13). In denying the claim, the state post-conviction court
stated:
36
Defendant claims counsel was ineffective when he failed to use at trial testimony
given at a deposition by surviving victim Stephen Tuttle. However, testimony
given in a deposition is hearsay, which is an out of court statement that is
inadmissible at trial. Counsel cannot be ineffective in failing to attempt to
introduce statements at trial that are inadmissible hearsay. This claim lacks legal
merit and is therefore denied.
(Respondent=s Ex. 17, p. 13).
To the extent Petitioner asserts that defense counsel was ineffective in failing to introduce
Tuttle=s deposition testimony during trial, the state post-conviction court determined that counsel
was not ineffective in failing to do so because the deposition testimony was inadmissible
hearsay.
In Florida, Adiscovery depositions may not be used as substantive evidence in a
criminal trial.@
State v. James, 402 So. 2d 1169, 1171 (Fla. 1981).
Accordingly, the state
post-conviction court=s determination that counsel was not deficient in failing to introduce
Tuttle=s deposition testimony was not objectively unreasonable.
To the extent Petitioner contends defense counsel was ineffective at trial in failing to
elicit testimony from Tuttle that Petitioner never told him to get into the car, no one threatened
him to get into the car, and he never stated that he did not want to get into the car, the claim
likewise does not warrant relief.
In Florida, to convict a defendant of kidnaping, the State must
prove (1) the defendant forcibly, secretly, or by threat, (2) confined, abducted or imprisoned, (3)
the victim against his or her will. See Fla. Std. Jury Inst. 9.1.
AA defendant is guilty as a
principal if he >aids, abets, counsels, hires, or otherwise procures such offense to be committed,
and such offense is committed or is attempted to be committed.=@
Wade v. State, 156 So. 3d
1004, 1017 (Fla. 2014) (quoting ' 777.011, Fla. Stat.).
There was ample evidence that Petitioner was a principal to the kidnaping that preceded
the murders.
Loucks testified that when Petitioner, Butterfield, and Brittingham arrived at his
37
office where Pearce was holding him, Shook, Havner, Tuttle and Crawford, they were armed
with guns (Respondent=s Ex. 28 - trial testimony of Loucks - transcript p. 310).
And when they
got out of the car, they stated that Ait was time to do some business,@ and they were going to take
[Tuttle] and [Crawford] in the car (Id.).
Loucks further testified that after Petitioner and the
others arrived, Pearce ordered Tuttle and Crawford into the car while waiving a gun (Id.,
transcript p. 311).
Shook testified that after Petitioner, Butterfield, and Brittingham arrived with handguns
and shotguns, Petitioner stated that he Awas going to take care of business.@
He further testified
that Tuttle and Crawford had guns pointed at them before they were taken in the car, and it was
apparent that they were not free to leave but were forced to go with Petitioner and the others (Id.,
transcript pp. 329-33).
Tuttle testified that 1) Pearce put a gun to Tuttle=s head and forced him to commit a
sexual act on Pearce, 2) Petitioner, Butterfield, and Brittingham subsequently arrived with guns,
3) Pearce stated Aeverybody pile in the car[,]@ and 4) he felt he had no choice but to get into the
car (Id., transcript pp. 399-402).
Even if defense counsel had elicited testimony from Tuttle that Petitioner never gave him
an order to get into the car, and no one actually Athreatened@ him to get him to enter the car, the
outcome of the trial would not have changed.
Tuttle, Loucks, and Shook=s testimony was
sufficient to prove that Petitioner aided Pearce in kidnaping Tuttle and Crawford.
Petitioner,
Pearce, Butterfield, and Brittingham were armed with guns, Petitioner stated he was there Ato
take care of business,@ Pearce had pointed a gun at Tuttle and forced him to commit a sex act on
him, and Tuttle believed he had no choice but to comply with Pearce=s order to get into the car.
Petitioner has not demonstrated that the state courts= denial of this claim was contrary to,
38
or involved an unreasonable application of, federal law, nor has he established that the decision
was based on an unreasonable determination of the facts in light of the evidence presented.
Accordingly, Grond Two, Subclaim b does not warrant federal habeas relief.
Subclaim c
Petitioner contends that trial counsel was ineffective in failing to impeach Loucks and
Shook=s testimony that when Petitioner, Butterfield, and Brittingham arrived at Loucks= office
(We Shelter America), Petitioner said they came Ato take care of business.@
Petitioner argues
that counsel should have impeached their testimony with the multiple statements they previously
made to law enforcement and the State Attorney=s Office in which they never mentioned that
Petitioner said that they came “to take care of business.” Petitioner further asserts that counsel
should have impeached Shook=s trial testimony with Shook=s testimony during his deposition that
Petitioner had stated that he was going to a motel room to Atake care of business.@
Petitioner
argues that Shook=s deposition testimony shows that the Atake care of business@ comment
referred to retrieving Pearce=s stolen money from the thieves that were staying in a motel, rather
than the kidnaping and murder.
He further argues that Shook=s deposition testimony proves
Shook fabricated his testimony that Petitioner said he was there to Atake care of business@
because Shook did not know the thieves were staying at a motel Auntil facts of the case were
slowly brought to light. . . .@
Finally, Petitioner contends that counsel should have impeached
Shook=s testimony at trial that Petitioner, Pearce, Butterfield, and Brittingham took Crawford and
Tuttle out of Loucks’ office with Shook=s deposition testimony that only Pearce took them out.
In state court, Petitioner raised this claim in Ground 3, Subclaim 4 of his Amended Rule
3.850 motion (Respondent=s Ex. 16, pp. 13-14).
court stated:
39
In denying the claim, the state post conviction
Here, Defendant alleges that counsel was ineffective for failing to impeach
witnesses Ken Shook and Bryan [sic] Loucks.
A. Bryon Loucks: Defendant claims that Bryon Loucks testified that
Pearce called Defendant, Brittingham and Butterfield to help him recover drug
money. They arrived at We Shelter America and stated that it was Atime to take
care of business@.[FN1] Defendant claims Loucks never previously mentioned
Defendant=s statement. Defendant claims counsel failed to impeach Loucks on
this issue. He claims he was prejudiced as a result, but does not explain how he
was prejudiced. When alleging ineffective assistance of counsel, the Defendant
must prove first that counsel=s performance was deficient, and second, that the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). As this court has previously noted, the legal standard for such an
evaluation is Areasonably effective counsel, not perfect or error-free counsel.@ See
Tuffeteller v. Dugger, 734 So. 2d 1009, 1022 n.14 (Fla. 1999). Even if
Defendant alleged that this statement prejudiced him as it demonstrated a
premeditated plan to murder the victims, this claim still lacks merit. The state
sought Defendant=s conviction on a premeditated murder theory and a felony
murder theory. Even if the jury did not believe that Defendant had a premeditated
plan to shoot the victims, if the jury found Defendant to be an accomplice or
participant in the underlying felony of kidnapping, he is still guilty of murder and
attempted murder. Loucks testified that Defendant stated he was there Ato do
business and...take Steve and Rob in the car@. Trial transcript, p. 310. Clearly,
this testimony supports the state=s theory that Defendant was at the very least an
accomplice in the kidnapping of the victims. Further, as previously discussed,
counsel is not necessarily ineffective for failing to cross examine and impeach a
witness on every potential inconsistency between their trial testimony and prior
statements. This claim lacks merit and is legally insufficient. This claim is denied.
B. Ken Shook: Shook testified that Pearce called Smith, Brittingham and
Butterfield to assist him to recover drug money. They all arrived with weapons.
He stated, AWell, they all come in, and they are all standing around talking about
they were going to go take care of business. That=s what Joey says.@ Trial
Transcript, p. 329-330. Defendant appears to allege that counsel should have
impeached the witness with his alleged prior inconsistent statements or omissions,
but again fails to explain what difference this would have made at trial.
Moreover, the record indicates that defense counsel got Shook to admit that
Pearce made all the threats and Awas in charge of the whole scenario.@ Trial
transcript, p. 337. Further, counsel objected and moved to strike Shook=s
statement that Defendant announced he was there to Atake care of business.@
However, the court overruled the defense objection and allowed the testimony.
Trial transcript, p. 330. The court does not find [sic] that counsel was not
deficient in this regard and effectively cross examined Shook. This claim is
denied.
40
Defendant also alleges counsel failed to impeach Shook when he testified
that Defendant, Pearce, Brittingham and Butterfield took the victims individually
outside Loucks= office. He claims that in his deposition, Shook stated that only
Pearce took the victims outside. He claims counsel failed to impeach Shook
with his inconsistent statement. Again, Defendant fails to explain how he was
prejudiced and what difference impeachment on this alleged inconsistency would
have made at his trial. As previously discussed, ideally counsel can impeach or
cross-examine a witness on every conceivable inconsistent statement or omission.
Defendant has failed to show how Defendant suffered any prejudice for a failure
to impeach on this testimony. Therefore, this claim lacks merit and is denied.
[FN1] Mr. Loucks= actual testimony was that when Defendant, Brittingham and
Butterfield arrived, they stated, Ait was time to do business, and they was [sic]
going to take [the victims] in the car.@ Trial transcript, p. 310.
(Respondent=s Ex. 17, pp. 13-14).
The state post-conviction court’s determination that Petitioner failed to establish
prejudice resulting from his counsel’s failure to impeach Loucks and Shook with prior
statements was not an unreasonable application of clearly established Supreme Court law.
In
order to obtain relief under a Sixth Amendment claim of ineffective assistance of counsel, a
defendant must not only establish deficient performance by counsel, but the defendant must also
demonstrate prejudice under the two-pronged Strickland test.
In his Rule 3.850 motion,
Petitioner failed to allege any prejudice other than to simply say Loucks and Shook’s testimony
that Petitioner said they were there “to take care of business,” and Shook’s testimony that
Petitioner and the others took the victims out of Loucks’ office, was “the most damaging
testimony given against me by these two witnesses. . . .” (Respondent’s Ex. 16, pp. 13-14).
Petitioner failed to explain how the testimony was damaging to his case (Id.). Accordingly, his
allegations were insufficient to show prejudice and warrant relief under Strickland.
See Hill v.
Lockhart, 474 U.S. 52 (1985) (petitioner must allege specific facts establishing both deficient
representation and prejudice); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague
41
and conclusory allegations are insufficient to support relief on a claim of ineffective assistance of
counsel).
To the extent Petitioner now attempts to show prejudice by alleging additional factual
support (see Doc. 1, docket pp. 12-23) that was not presented to the state post-conviction court,
he is procedurally barred from doing so.
“Habeas petitioners generally cannot raise claims in
federal court if those claims were not first exhausted in state court.”
McNair v. Campbell, 416
F.3d 1291, 1302 (11th Cir. 2005) (citing 28 U.S.C. § 2254(b)(1); Kelley v. Sec’y for Dept. of
Corr., 377 F.3d 1317, 1343 (11th Cir. 2004)).
“[T]he prohibition against raising nonexhausted
claims in federal court extends not only to broad legal theories of relief, but also to the specific
assertions of fact that might support relief.”
Kelley, 377 F.3d at 1344 (emphasis added).
Because Petitioner has failed to show cause for his default and has failed to make a colorable
showing of actual innocence, this claim is procedurally barred from review.
Even if Petitioner’s new claim of prejudice were not procedurally barred, Petitioner
would not be entitled to relief because he fails to demonstrate deficient performance.
Although
Petitioner alleges that Loucks and Shook’s prior statements do not mention that Petitioner stated
that they were there “to take care of business,” the statements are not included in the record
before the Court.
Without the statements, the Court cannot determine whether Loucks and
Shook omitted Petitioner’s “take care of business” comment.
Moreover, even if that comment
was omitted, it is not clear under Florida law whether counsel would have been allowed to
impeach Loucks and Shook with their prior statements.
See Varas v. State, 815 So. 2d 637 (Fla.
3d DCA 2001) (“It is well-settled that a witness may be impeached by a prior inconsistent
statement, including an omission in a previous out-of-court statement about which the witness
testifies at trial, if it is of a material, significant fact rather than mere details and would naturally
42
have been mentioned.”).
Without the statements, the Court cannot determine whether
Petitioner’s alleged comment that they were there to “take care of business” would naturally
have been mentioned in those statements.
Petitioner has failed to demonstrate that the state post-conviction court unreasonably
applied federal law or made an unreasonable determination of the facts. Accordingly, Ground
Two, Subclaim c does not warrant federal habeas relief.
Subclaim d
Petitioner contends that trial counsel was ineffective in failing to adequately investigate
his case and present available evidence.
Specifically, Petitioner asserts that counsel should
have: 1) called Deborah Smith, Deborah Kaeberlein, Melissa Ellerbee, and Kelley Ross who
each would have testified that Butterfield stated that he intended to testify falsely against
Petitioner in order to “save himself;” 2) called Holly Self to testify that Petitioner did not force
Brittingham to drive him to the bus station, and that after the murders Brittingham was not
scared of and anxious to get away from Petitioner because when he dropped Petitioner off at a
residence, Brittingham remained there approximately 30 minutes; 3) obtained the results of the
State=s gunshot residue test, or had an independent test conducted on the clothes Petitioner wore
on the night of the crime, which would have proven that Petitioner did not fire a gun on the night
of the crime; 4) presented an autopsy report and photographs of the gunshot wounds on
Crawford which, coupled with Brittingham’s description of how Crawford was shot, would have
established that Crawford was shot by someone much shorter than Petitioner; and 5) photographs
of the interior of Pearce’s car that would have rebutted a) Butterfield and Brittingham’s
testimony that they saw Petitioner and Pearce swap guns before the shootings, and b)
Brittingham’s testimony regarding how he saw Petitioner shoot the victims.
43
In state court this claim was raised in Ground 3, Subclaim 6 of Petitioner’s Amended
Rule 3.850 motion (Respondent’s Ex. 16, pp. 16-19).
In denying the claim, the state
post-conviction court stated:
Defendant alleges counsel was ineffective for failing to conduct adequate
pre-trial investigation or present evidence at trial.
1. First, he claims counsel should have called as witnesses Deborah Smith,
Melissa Ellerbee, Deborah Kaeberlein and Kelley Ross. He claims these
witnesses would have testified that they heard Butterfield state that he was going
to testify falsely about Defendant to save himself. However, these alleged out of
court statements would have been deemed by the court inadmissible hearsay.
Objections by the state to this testimony would have been sustained. Counsel
cannot be ineffective for failing to call witnesses whose proposed testimony is
inadmissible hearsay. Defendant has failed to show that counsel was deficient
by not calling these witnesses. This claim is denied.
2. Defendant claims Holly Self would have testified that Defendant did not
force Brittingham to drive him to the bus station after the shootings and that this
witness was not afraid of Defendant. He claims this testimony would have
attacked Brittingham’s credibility. This claim has no merit. Even if counsel
had called this witness to impugn Brittingham’s testimony, her testimony would
not have been sufficient to overcome the evidence in the record establishing
Defendant’s involvement in these offenses. As discussed above, Defendant’s
participation was corroborated by his own statements as well as by the trial
testimony of other witnesses.
Further, additional testimony regarding
Defendant’s flight after the shootings would only confirm Defendant’s
involvement in the murder and attempted murder. Therefore, Defendant has failed
to show that counsel was deficient by not calling this witness. This claim is
denied.
3. Defendant alleges that counsel was ineffective for failing to “investigate
or seek the results to any of the forensic tests performed by police” or seek
independent testing of the evidence. Defendant specifically refers to a gunshot
residue test, testing on his clothing and testing for fingerprints on bullet casings.
Defendant does not, however, allege how the results of the tests would have
assisted him or how independent tests would have supported his defense theory or
affected the outcome of the trial. During opening statements, defense counsel
advised the jury that there was no forensic or physical evidence including gunshot
residue testing and finger prints, linking Defendant to the shootings. Trial
transcript, p. 291. No physical or forensic evidence connecting Defendant to the
crimes was introduced at trial. Counsel advised the jury during closing
argument of this lack of physical evidence and that the gunshot residue test
44
performed on Defendant was negative. Transcript, p. 726; 750-751. Therefore,
the record is clear that counsel was aware of the results of all forensic tests
performed by law enforcement. Moreover, it was also clear at trial that the state
had no physical evidence linking Defendant to the crime.
Therefore,
Defendant’s claim that counsel was somehow deficient in failing to request this
evidence and in failing to have independent tests performed is refuted by the
record and is also nonsensical. There is no valid reason or basis for defense
counsel to seek independent testing of physical evidence that fails to link a
defendant to a crime. This claim lacks merit and is refuted by the record. This
claim is therefore denied.
4. Defendant claims that the medical examiner’s report and autopsy
photographs “strongly suggest” that Crawford was shot by someone much shorter
than himself. Defendant claims that he is nearly the same height as Crawford
but that Pearce and Butterfield are much shorter men. He claims counsel was
deficient for failing to argue that this evidence shows he did not shoot Crawford.
First, this allegation is conclusory and appears to be based on nothing more than
Defendant’s own speculation, and as such, it cannot form the basis for
postconviction relief. See Knight v. State, 923 So. 2d 387 (Fla. 2005) (holding
that speculative and conclusory allegations are insufficient to warrant an
evidentiary hearing). Further, defense counsel thoroughly cross examined the
medical examiner, Dr. Marie Hansen, revealing that she was unable to ascertain
whether the victim was standing, sitting or crouching when he was shot. Trial
transcript, p. 608-609. The court finds that counsel was not deficient in this
regard. This claim is denied.
5. Defendant claims counsel was deficient by failing to use photographs of
the interior of Pearce’s car to establish that Butterfield and Brittingham could not
have seen him trade guns with Pearce and that Brittingham could not have seen
the shootings. The Court finds this allegation is conclusory and appears to be
based on nothing more than Defendant’s own speculation, and as such, it cannot
form the basis for postconviction relief. See Knight v. State, 923 So. 2d 387
(Fla. 2005) (holding that speculative and conclusory allegations are insufficient to
warrant an evidentiary hearing). This claim lacks merit and is denied.
(Respondent’s Ex. 17, pp. 15-17).
1. Failure to call witnesses
Initially, Petitioner has failed to present any evidence to support his allegation that these
witnesses would have testified as he suggests. See United States v. Ashimi, 932 F.2d 643, 650
(7th Cir. 1991) (“[E]vidence about the testimony of a putative witness must generally be
45
presented in the form of actual testimony by the witness or an affidavit. A defendant cannot
simply state that the testimony would have been favorable; self-serving speculation will not
sustain an ineffective assistance claim.”) (footnotes omitted).
habeas relief on this claim.
He therefore cannot obtain
See Johnson v. Alabama, 256 F.3d 1156, 1187 (11th Cir. 2001)
(“Johnson offers only speculation that the missing witnesses would have been helpful. This kind
of speculation is ‘insufficient to carry the burden of a habeas corpus petitioner.’”) (quoting
Aldrich v. Wainwright, 777 F.2d 630, 636 (11th Cir. 1985)).
Even if he had presented evidence in support, the claim still would fail. With regard to
Smith, Ellerbee, Kaeberlein, and Ross, the state post-conviction court has answered the question
of what would have happened had defense counsel attempted to present their alleged testimony
that Butterfield told them that he was going to testify falsely against Petitioner - - the testimony
would have been excluded as inadmissible hearsay.
With regard to Self, Petitioner’s girlfriend who allegedly would have testified that
Brittingham was not afraid of Petitioner and was not forced to drive her and Petitioner to the bus
station, her proposed testimony would have been of marginal value. Butterfield testified, in
pertinent part, that after they went to Pearce’s house, he had to drop Petitioner and Self off at the
bus station (Respondent’s Ex. 34, transcript p. 480). When they discovered no tickets were
being sold because of a pending hurricane, Petitioner dropped them off in another neighborhood
(Id., transcript p. 481). On cross-examination he testified that he was fearful that Petitioner
might kill him (Id., transcript p. 500).
Self’s alleged testimony that Brittingham did not appear to be afraid of Petitioner when
he took them to the bus station would have had little value considering the significant evidence
demonstrating Petitioner’s involvement in the kidnaping and shooting of the victims. Moreover,
46
calling Self to testify would have presented the State with the opportunity to question her
regarding why she and Petitioner were suddenly leaving on a bus shortly after the shootings. As
the state post-conviction court stated, this could have provided additional testimony showing
Petitioner was fleeing after the shootings and further implicated him in the shootings.
Therefore, Petitioner has failed to show that counsel was deficient in failing to call these
witnesses and that he was prejudiced because they did not testify.
2. Failure to obtain gunshot residue report and test Petitioner’s clothes for residue
Petitioner contends that counsel was ineffective in failing to investigate any of the
physical evidence in the State’s possession.
Specifically, Petitioner states that counsel should
have: 1) obtained the results of the gunshot residue test that was taken from Petitioner and
secured independent testing of the gunshot residue “kit”; and 2) obtained the State’s test results
for, or obtained independent testing of, the clothes Petitioner was wearing at the time of the
shootings.
He argues that the test results would have been negative and therefore established
that he did not fire a gun on the night of the shootings.
This claim fails because Petitioner does not demonstrate prejudice.
He neither alleges
nor shows that gunshot residue testing of him or his clothes yielded exculpatory evidence.
Rather, he merely speculates that both tests were or would have been negative.
See Aldrich v.
Wainwright, 777 F.2d 630, 637 (11th Cir.1985) (speculation insufficient to carry burden of a
habeas corpus petitioner as to what evidence could have been revealed by further investigation);
Bible v. Ryan, 571 F.3d 860, 871 (9th Cir.2009) (speculation about test results is insufficient to
show Strickland prejudice).
This claim likewise fails because Petitioner does not demonstrate deficient performance.
Petitioner fails to account for the potential that independent testing could have proved damaging
47
to the defense.
The fear of the unknown may, itself, be reasonable.
Chandler v. United States,
218 F.3d 1305, 1324 (11th Cir. 2000). At least one reasonably competent attorney under the
circumstances could forego the proposed testing because such evidence might produce
incriminating evidence against Petitioner.
See e.g., Jones v. Galdis, 2005 WL 1705470
(M.D.Fla. July 20, 2005) (unpublished) (reasonably competent attorney could forego request for
experts on gunshot residue to avoid risk testing might serve to inculpate defendant, especially
where eyewitness testimony implicated him as shooter).
Moreover, considering the State failed
to present the results of any testing (gunshot residue, fingerprints, etc.), defense counsel was able
to effectively argue to the jury that reasonable doubt existed because no forensic or physical
evidence showed that Petitioner was the shooter (Respondent’s Ex. 36, transcript pp. 726,
750-51).
It is therefore objectively reasonable to conclude that Petitioner has failed to show
that counsel was deficient in failing to obtain test results and independent testing of the evidence.
3. Failure to argue that evidence showed Crawford was shot by someone shorter
Petitioner contends that counsel was ineffective in failing to use the medical examiner’s
autopsy report and photographs of Crawford to argue that the upward angle of the gunshot
wound suggests that the shooter was “significantly shorter” than Crawford.
He argues that
since he is only one inch shorter than Crawford, and Pearce and Brittingham stand 5’6” and 5’3”
respectively, this shows that it is more likely one of them shot Crawford.
As discussed in more detail below in Ground 2, Subclaim i, Petitioner’s contention is
wholly speculative and unsupported by the record.
The medical examiner testified that both
Crawford and the shooter could have been in “many potential positions that would be consistent”
with the trajectory of the bullet wounds (Respondent’s Ex. 35, transcript pp. 608-09).
Moreover, both Butterfield and Brittingham testified that it was dark and very difficult to see the
48
actual shootings (Respondent’s Ex. 34, transcript pp. 432, 453, 476).
Accordingly, Petitioner
has failed to show that counsel was deficient in failing to use this evidence to argue that the
shooter was “significantly shorter” than Crawford.
4. Failure to use photographs of interior of Pearce’s car to argue witnesses could not
see alleged gun swap, and Brittingham could not see the shootings
Petitioner contends that counsel was ineffective in failing to use photographs of the
interior of Pearce’s car to “rebut the testimony of Butterfield and Brittingham concerning the
alleged gun swap.” He argues that the photographs would have shown that Butterfield and
Brittingham could not have seen Pearce and Petitioner swap guns from where they were sitting.
This claim warrants no relief because Petitioner demonstrates neither deficient
performance nor prejudice. First, he shows no prejudice because there are no photographs in
the record before this Court, and therefore his assertion that Butterfield and Brittingham could
not have seen the swapping of guns is unsupported and speculative.
It is more than plausible
that if Butterfield was sitting in the seat behind the driver, and Brittingham was sitting in the seat
behind the front passenger, they still could see a gun passed between Pearce, who was driving,
and Petitioner, who was in the front passenger seat.
Second, he shows no deficient performance
or prejudice because while it is possible that the photographs in question might have aided the
defense presentation of whether Petitioner swapped guns with Pearce before the shooting, they
would have been merely cumulative of other evidence that came out at trial.
Brittingham
testified that he could not see the gun swap because he “was in the back [of the car], crammed
into the far corner.”
(Respondent’s Ex. 34, transcript p. 492).
And defense counsel argued
during closing that the gun swap testimony lacked credibility because in Butterfield’s initial
statements he made “absolutely no explanation of any switch of guns between Mr. Pearce and
49
Mr. Smith” (Respondent’s Ex. 36, transcript p. 740), and that Butterfield and Brittingham had
multiple opportunities to contrive a story that explained how Petitioner came into possession of
Pearce’s gun, which was the murder weapon (Id., transcript p. 750).
“A petitioner cannot
establish ineffective assistance by identifying additional evidence that could have been presented
when that evidence is merely cumulative.” Van Poyck v. Florida Dep’t. of Corrs., 290 F.3d
1318, 1324 n. 7 (11th Cir.2002) (citation omitted).
Moreover, there was substantial evidence of
Petitioner’s guilt under the felony murder theory.
Petitioner has failed to demonstrate that the state court unreasonably applied federal law
or made an unreasonable determination of the facts in denying this claim. Accordingly, Ground
Two, Subclaim d does not warrant federal habeas relief.
Subclaim e
Petitioner complains that trial counsel was ineffective in failing to obtain Butterfield and
Brittingham=s grand jury testimony to establish that said testimony was inconsistent with their
trial testimony.
Petitioner does not identify any inconsistent testimony.
Rather, he asserts that
in light of pre-trial statements Butterfield and Brittingham gave to law enforcement and
prosecutors that were inconsistent with their trial testimony, A[i]t is inevitable@ that they gave
testimony before the grand jury that was inconsistent with their trial testimony.
He contends
that their trial testimony was crucial to the State=s case, and any inconsistent testimony 1) could
have been used to impeach their credibility, and 2) could have changed the outcome of the trial.
In state court, Petitioner raised this claim as Ground 3, Subclaim 8 of his Amended Rule
3.850 motion (Respondent=s Ex. 16).
In denying the claim, the state post-conviction court
determined that the claim was speculative because A[Petitioner] does not argue, and the record is
absent of any indication that these witnesses gave conflicting discoverable grand jury testimony.@
50
(Respondent=s Ex. 17, p. 18).
Neither in state court nor in this Court has Petitioner identified grand jury testimony from
Butterfield and Brittingham that was inconsistent with their trial testimony.
Moreover,
Petitioner has not even alleged that they gave testimony before the grand jury that was
inconsistent with their trial testimony.
Rather, he contends Ait is inevitable@ that their grand jury
testimony was inconsistent with their trial testimony because they gave inconsistent statements to
law enforcement prior to trial. This contention is wholly speculative and therefore insufficient to
demonstrate either deficient performance by counsel or prejudice. See Johnson, 256 F.3d at
1183 (Apure speculation@ is insufficient to demonstrate ineffective assistance of counsel).
The state post-conviction court’s rejection of this claim was not an unreasonable
application of Strickland. Accordingly, Ground Two, Subclaim 5 does not warrant federal
habeas relief.
Subclaim f
Petitioner contends that counsel was ineffective in failing to object to Tuttle=s testimony
that Pearce committed a sexual battery on Tuttle.
Petitioner asserts that counsel should have
objected and argued that the testimony was 1) irrelevant because the sexual battery occurred
before Petitioner first arrived to meet Pearce, and 2) overly prejudicial because its only purpose
was to inflame the passion of the jury.
In state court, Petitioner raised this claim as Ground 3, Subclaim 9 of his Amended Rule
3.850 motion (Respondent=s Ex. 16).
In denying the claim, the state post-conviction court
stated:
Here, Defendant alleges counsel was ineffective for failing to object when
the State introduced testimony from Tuttle regarding the sexual battery.
Defendant argues that the testimony regarding the sexual battery was not relevant
51
to Defendant=s charges and was highly prejudicial. He claims that, but for
counsel=s failure, there is a reasonable probability that the outcome of the trial
would have been different.
The Court finds that the Defendant has failed to establish that counsel was
deficient. First, the Defendant and Pearce were charged as principals to the
murder and attempted murder pursuant to '777.011, Florida Statutes. See Exhibit
A: Indictment. Therefore, evidence of Pearce=s actions was admissible in the
Defendant=s trial to prove the case. See State v. Dene, 533 So. 2d 265 (Fla. 1988).
The State had to prove that Defendant committed first degree murder and
attempted murder. To prove first degree murder, the State argued both
premeditated murder and felony murder. See Exhibit B. Trial Transcript, pp.
770-771. As to felony murder, the State had to establish that the victim=s death
occurred during the Defendant=s commission of the kidnapping and that
Defendant or another killed the victim while acting as principals to the
kidnapping. See Exhibit B: Trial Transcript, p. 773-774. The State also explained
the principal theory to the jury. Trial Transcript, pp. 776-777. As Defendant was
charged as a principal, the State could establish his guilt by presenting testimony
as to Pearce=s activities. The sexual battery was part of the entire criminal episode,
specifically the acts leading up to the kidnapping and Pearce=s motive. The
Florida Supreme Court reversed the trial court=s ruling which found that trial
counsel was ineffective for failing to object or move to exclude the sexual battery
incident. State v. Pearce, 994 So. 2d 1094 (Fla. 2008). Furthermore, the Court in
Smith v. State, 866 So. 2d 51, stated that Aproof of any fact with its circumstances
even though amounting to a distinct crime is admissible if it has some relevant
bearing upon the issue being tried@. The Florida Supreme Court explained that
A[t]he only limitations to the rule of relevancy are that the state should not be
permitted to make the evidence of other crimes a feature of the trial.@ Therefore,
evidence of uncharged crimes which are inseparable from the crime charged or
evidence which is Ainextricably intertwined@ with the crime charged is admissible
under ' 90.402, Florida Statutes, because it is relevant and inseparable from the
crime charged. Smith v. State, 866 So. 2d at 52. The sexual battery was part of
one criminal episode which led to the death of Crawford and the attempted
murder of Tuttle. Therefore, the State was entitled to present evidence to establish
the entire context out of which the crimes arose. Defense counsel did not have
grounds to object to the testimony because Defendant and Pearce were charged as
principals. Therefore, defense counsel is not ineffective for failing to make a
groundless objection. Freeman v. State, 761 So. 2d 1055 (Fla. 2000).
The Court also finds that the Defendant cannot show prejudice in this
claim. The Florida Supreme Court has already ruled on the prejudicial aspect of
the sexual battery testimony, and this ruling has become the law of the case.
Pearce v. State, 994 So. 2d at 1099. The Court found that the evidence of the
sexual assault Adid not become the feature of the trial and was simply one act in a
52
series that led to the murder and attempted murder.@
In the instant case, the words Asexual battery@ were not even spoken during
the State=s closing argument. The only mention of the incident was when the State
discussed Pearce holding the victims hostage and stated A[Pearce] forced Steve
Tuttle to commit acts against his will at the point of this gun.@ Exhibit B: Trial
Transcript, p. 783. Also, the only other mention of the sexual battery incident
during the entire trial was once during the testimony of Tuttle. Trial Transcript, p.
399-400. Therefore, the sexual battery testimony in Defendant=s trial was even
more limited than in Pearce=s trial. See Pearce v. State. 994 So. 2d 1100. This
Court finds that the sexual battery was intertwined with the crimes charged and
did not become a feature of Defendant=s trial. Given all of the other evidence
against Defendant, as outlined in this order and the Court's August 22, 2011 order,
it is unlikely that this testimony affected the outcome of the trial. This claim is
denied.
(Respondent=s Ex. 21, pp. 2-4).
The state post-conviction court found that Tuttle=s testimony regarding the sexual battery
was admissible under Florida law, and had counsel objected to the testimony as irrelevant and
overly prejudicial, the objection would have been overruled. The state post-conviction court
therefore concluded that Petitioner failed to show deficient performance and prejudice.
The state post-conviction court therefore has answered the question of what would have
happened had defense counsel objected to Tuttle=s testimony regarding the sexual battery - the
objection would have been overruled under Florida law. Consequently, Petitioner has failed to
establish deficient performance and prejudice. 5
See, Callahan v. Campbell, 427 F.3d 897, 932
(11th Cir. 2005) (Alabama Court of Criminal Appeals had already answered the question of what
would have happened had counsel objected to the introduction of petitioner=s statements based
5
Federal courts Awill grant [habeas] relief if. . .a state trial judge=s erroneous admission of evidence makes a
petitioner=s trial >so fundamentally unfair that the conviction was obtained in violation of the due process clause of
the fourteenth amendment[.]=@ Herring v. Sec=y, Dep=t of Corr., 397 F.3d 1338, 1355 n.8 (11th Cir. 2005) (quoting
Thigpen v. Thigpen, 926 F.2d 1003, 1012 (11th Cir. 1991)). Petitioner has not established that the admission of the
testimony regarding Pearce=s sexual battery rendered the trial fundamentally unfair. As the state court stated, the
testimony regarding the sexual battery was intertwined with the series of events and was not a feature of the trial.
53
on state decisions; the objection would have been overruled; therefore, counsel was not
ineffective for failing to make that objection).
Moreover, Petitioner has failed to demonstrate
prejudice because he has not shown that had counsel objected, the objection would have been
sustained, and that exclusion of the testimony would have carried a reasonable probability of
changing the outcome of the trial.
Petitioner therefore has failed to show that the state court’s denial of this claim involved
an unreasonable application of Strickland or was based on an unreasonable determination of the
facts.
Accordingly, Ground 2, Subclaim f does not warrant federal habeas relief.
Subclaim g
Petitioner contends that trial counsel was ineffective in failing to object to, or request a
curative instruction regarding, allegedly improper comments made by the prosecutor during
closing argument. Specifically, he asserts that the prosecutor improperly invited the jury to
speculate regarding what he was insinuating when he questioned crime scene technician Lana
Whonsetter.
Petitioner contends that the prosecutor was insinuating that gun residue testing is
neither reliable nor useful.
He argues that the comments were improper because it allowed the
jury to consider facts not in evidence.
In state court, Petitioner initially raised this claim in Ground 3, Subclaim 10 of his
Amended Rule 3.850 motion (Respondent=s Ex. 16, p. 22).
After the claim was stricken with
leave to amend (Respondent=s Ex. 17, pp. 18-19), Petitioner filed his amended claim
(Respondent=s Ex. 18).
In denying the amended claim, the state post-conviction court stated:
In this claim, as amended, Defendant alleges counsel failed to object when
the State made an improper closing argument by asking the jury to Aspeculate@
about evidence and testimony. The Court finds that the claim is, for the most part,
incomprehensible. To the extent that the Court discerns claims, the Court
addresses the claims as follows:
54
First, the Defendant appears to allege that the State asked the jury to
speculate about the results of the State=s gunshot residue test. However, the record
refutes this claim. The Defendant=s defense at trial was that Pearce shot the
victims and there was a lack of evidence establishing Defendant=s participation in
the murder and attempted murder. In the closing statement, counsel for Defendant
argued that since the State did not introduce the result of the gunshot residue test
performed on Defendant, it means the test was negative. Trial Transcript, pp.
750-751. In response to this defense, the State argued in closing that defense
counsel was actually asking the jury to speculate that the test was negative
because it was not introduced. The State argued that the jury should not
speculate and asked them to review only the testimony and evidence in reaching a
verdict. The State then offered examples of speculation on the evidence. Trial
Transcript, p. 781-783. The record indicates that defense counsel asked the jury to
assume that the gunshot residue test was negative and the State asked the jury not
to speculate and to only consider the evidence. The court is unaware of what
objection defense counsel could have reasonably made to the State=s closing
argument. Therefore, counsel is not ineffective for failing to make a groundless
objection.
Defendant also appears to allege that counsel was ineffective for failing to
object to the State=s reference during closing arguments to facts not in evidence.
As stated previously, Defense counsel implied that the State did not introduce
gunshot residue test results from Defendant=s hands because they were negative.
In response to Defendant=s position that the gunshot residue test must have been
negative, the State responded during closings argument that when Defendant was
arrested he was Awet, rolling around in the mud and rain in his front yard@,
implying perhaps that the rain washed away the gunshot residue. Trial Transcript,
p. 781-783. However, Detective Bucenell had testified that he arrested
Defendant on a rainy day and that everyone got wet. He testified that when
handcuffed, the Defendant was Aface down on the ground, in the rain...@. Trial
Transcript, p. 653. Therefore, the State referred to facts that were in evidence.
Accordingly, this claim is refuted in the record. Further, counsel cannot be
ineffective for failing to object when there are no grounds for objection.
The Court also finds that Defendant has failed to establish how the result
of the trial would have been different if the above-referenced objections had been
made and sustained. In light of the other overwhelming evidence and testimony
implicating the Defendant in this case (as described in the Court's August 22,
2011 Order), the Court finds that Defendant has failed to establish any prejudice
from counsel=s lack of objection. This claim is denied.
(Respondent=s Ex. 21, pp. 4-5).
The state court has answered the question of what would have happened had counsel
55
objected to the prosecutor’s comments during closing argument—the objection would have been
overruled. Consequently, Petitioner has failed to establish deficient performance or prejudice
with respect to this claim. See Callahan, 427 F.3d at 932 (Alabama Court of Criminal Appeals
had already answered the question of what would have happened had counsel objected to the
introduction of petitioner’s statements based on state decisions; the objection would have been
overruled; therefore, counsel was not ineffective for failing to make that objection).
During closing argument, defense counsel stated, in pertinent part:
He wasn’t given a gunshot residue test, which now, you know, the police
give in order to find out if there’s evidence of gunshot powder. And now the
State will suggest to you that it’s really not a significant thing to do. It’s really
not important. But the police decided to give it to Mr. Smith, which we never
heard the - - we certainly would have heard if the results were positive. The
results were negative.
***
You heard the testimony, as we have talked about, of several crime scene
technicians, about recovering, processing the crime scene, recovering bullets.
The gunshot residue test was performed on Mr. Smith. The technician
testified that Mr. Smith cooperated fully. And again, somehow, because it’s
negative, it’s - - that whole process is insignificant, unimportant. But it was
certainly not done on Faunce Pearce, or Heath Brittingham, or Teddy Butterfield.
(Respondent’s Ex. 36, transcript pp. 739, 750-51).
In response to those statements, the prosecutor argued:
Speculative doubt, imaginary doubt, forced doubt, what does all that
mean? I will tell you what. For instance, gunshot residue. You heard
evidence about a gunshot residue test. It was performed on the hands of
Lawrence Joey Smith. Granted, nobody else had one done. That's for you to
consider. But you have no evidence of the results.
Mr. Hernandez says that since it wasn't introduced, it must have been
negative. That's speculation. The evidence is is [sic] that a test was given.
There is no evidence of the results.
56
I mean, if you wanted to speculate, I asked Miss -- I believe it was
Weigand -- "Do you know how reliable the test is? Do you know if it's even
done anymore?"
Well, what can you speculate from the nature of those questions?
What can you speculate from the fact that at the time this guy was taken
into custody he was wet, rolling around in the mud and the rain in his front yard?
What can you speculate from that?
Your evidence is the test was given.
to be based upon the evidence.
Don't speculate.
Your verdict has
(Id., transcript pp. 782-83).
“A prosecutor is not limited to a bare recitation of the facts, but instead, may comment on
the evidence. . . .” Crenshaw v. Sec’y, Fla. Dep’t of Corr., 2017 WL 6761058, at *6 (11th Cir.
Oct. 18, 2017) (unpublished) (citation omitted).
The prosecutor properly and accurately
commented on the evidence when he stated that no evidence had been presented showing the
results of the gunshot residue test on Petitioner.
And his comment that defense counsel was
merely speculating when he stated that the result of the test was negative was a fair response to
the evidence and defense counsel’s comment “And again, somehow, because [the test was]
negative, it’s – that whole process is insignificant, unimportant.” See id. (“[T]he prosecutor ‘as
an advocate, is entitled to make a fair response to the arguments of defense counsel.’”) (quoting
Holland v. Florida, 775 F.3d 1294, 1318 (11th Cir. 2014)).
Moreover, the prosecutor’s
comments regarding the jury speculating as to the validity of the test was an invited response to
defense counsel’s speculation as to the result of the test, and his comment that the State was
implying that the test was “insignificant” and “unimportant” only because it came back negative.
See id. (“When a prosecutor’s comments are an ‘invited reply’ in response to defense counsel’s
remarks, and he does ‘no more than respond substantially in order to ‘right the scale,’ such
57
comments would not warrant reversing a conviction.’”) (quoting United States v. Young, 470
U.S. 1, 11–13 (1985)).
Finally, despite Petitioner’s argument to the contrary, the prosecutor did
not invite the jury to speculate whether a gunshot residue test is reliable.
Rather, the prosecutor
argued that although the jury could speculate about several issues (including the reliability of the
test), they should not speculate but rather return a verdict “based upon the evidence.”
Because the prosecutor’s comments were not improper, Petitioner has failed to
demonstrate that the state court’s resolution of this claim was an unreasonable application of
Strickland or based on an unreasonable determination of the facts. Accordingly, Ground Two,
Subclaim g does not warrant federal habeas relief.
Subclaim h
Petitioner contends that trial counsel was ineffective in failing to object to an erroneous
ruling by the trial court. Petitioner asserts that Butterfield’s testimony that he saw Petitioner
and co-defendant Pearce switch guns prior to the shooting placed the murder weapon with
Petitioner. When trial counsel attempted to impeach Butterfield by asking him why he failed to
mention the swapping of guns in his prior statements to law enforcement, the court sustained the
State’s objection that it was improper impeachment.
Petitioner contends that counsel should
have argued that his question was proper impeachment and Arecite[d] the proper law@ in support.
Petitioner further contends that because the court erroneously ruled that defense counsel’s
attempt to impeach Butterfield was improper, counsel never attempted to impeach Brittingham=s
testimony that he too saw Petitioner and Pearce switch guns with Brittingham’s prior statements
that omitted this fact. Finally, he claims that he was prejudiced by counsel’s failure to object to
the ruling because the issue was not preserved for appeal.
This claim was raised in state court in Ground 3, Subclaim 5 of his Amended Rule 3.850
58
motion (Respondent’s Ex. 16, pp. 15-16).
In denying the claim, the state post-conviction court
stated:
Defendant claims defense counsel failed to "object to the trial court's erroneous ruling or
correct prosecutor's misstatement of law, allowing critical testimony on material fact at issue to
go unrebutted." Butterfield testified that he saw Defendant and Pearce trade guns. During
cross-examination, defense counsel attempted to impeach him with a prior inconsistent
statement. Butterfield denied making the prior statement and insisted that he had stated
previously that Defendant and Pearce switched guns. Counsel attempted to introduce
Butterfield's prior written statement into evidence to impeach his trial testimony. Trial transcript,
p. 457-459.
This Court finds that this was incomplete impeachment and that the court's ruling that the
impeachment was improper was a correct ruling. After Butterfield denied making the
inconsistent statement, impeachment would be accomplished by calling as a witness the
individual to whom the statement had been made. Nevertheless, counsel cannot be ineffective
for failing to argue with the Judge or object to a correct ruling by the Judge. This claim is
refuted by the record and is, therefore, denied.
(Respondent’s Ex. 17, p. 15).
The state post-conviction court determined that the state trial court correctly sustained the
State’s objection and that defense counsel’s impeachment was improper under Florida law.
“It
is a ‘fundamental principle that state courts are the final arbiters of state law, and federal habeas
courts should not second-guess them on such matters.’” Herring v. Sec’y, Dep’t of Corr., 397
F.3d 1338, 1355 (11th Cir. 2005) (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th
Cir.1997)).
Therefore, the state courts have answered the question of what would have
happened had counsel attempted to challenge the state trial court’s ruling that his method of
impeachment was improper—his argument would have been rejected, and the State’s objection
would have been sustained.
performance by counsel.
Consequently, Petitioner has failed to establish deficient
See Callahan v. Campbell, 427 F.3d at 932.
Accordingly, the state
court’s ruling did not result in an unreasonable application of federal law, and Ground 2,
Subclaim h warrants no federal habeas relief.
59
Subclaim i
Petitioner complains that trial counsel was ineffective in failing to present an alternate
defense theory, namely, that Butterfield shot the victims.
Petitioner asserts that there was “an
abundance of evidence available to counsel” which pointed to Butterfield as the shooter,
including: 1) in pre-trial statements Butterfield: a) referred to the stolen money as Aours@
(meaning his and Pearce=s), which showed he had a motive to shoot the victims; b) stated that
Pearce had called him Ato retrieve their lost money and asked him to bring a gun@; c) stated that
he and Pearce had previously Adiscussed what to do in this type of situation@; d) admitted that he
and Pearce were drug dealing partners for a while; e) stated that he was seated in the rear of the
car behind the passenger seat, which showed that he was seated in a position that would allow
him to exit the vehicle, and was inconsistent with his trial testimony that he was seated in the
rear of the car behind the driver=s seat; f) indicated that Aafter seperating [sic] from Petitioner and
Pearce@ he Aopted to remain at Pearce=s residence in order to keep an eye on things and gauge
whether or not it was safe for Pearce to return,@ which suggests he was Atrying to cover a crime@
rather than Aa scared witness to a senseless homicide@; 2) Tanya Barcom=s pre-trial statement that
her drug dealer told her that the money she stole belonged to Pearce and Butterfield; and 3)
Petitioner is 5'10" tall, Butterfield is 5'3" tall, and the medical examiner=s autopsy report and
photographs Astrongly suggested@ that the first gunshot wound sustained by Crawford, who was
5’11”, was made by someone significantly shorter than Petitioner.
Petitioner argues that had
counsel presented this evidence during trial, the outcome of the trial would have been different.
In state court, Petitioner raised this claim in Ground 3, Subclaim 7 of his Amended Rule
3.850 motion (Respondent=s Ex. 16, pp. 19-21). In denying the claim, the state post-conviction
court stated:
60
Defendant alleges counsel was deficient because he failed to investigate or
present an Aalternate theory@ that Butterfield was the Atrue perpetrator of the
crime@. Defendant claims that there was substantial available evidence not used
by counsel to present this theory at trial. However, the defense=s theory at trial
was that although Defendant was present in the car, Pearce was the shooter and
Brittingham and Butterfield were covering for Pearce by naming Defendant as the
shooter. Nevertheless, defense counsel stressed during closings all the evidence
and testimony he claimed showed that Butterfield could have been the shooter and
wondered whether Butterfield was covering up for Pearce or for himself. Trial
transcript, p. 731. Accordingly, this claim is refuted by the record. This claim is
denied.
(Respondent=s Ex. 17, pp. 17-18).
The state post-conviction court’s denial of this claim was not objectively unreasonable.
The court correctly found that Petitioner’s theory of defense was that Pearce shot the victims and
Brittingham and Butterfield, who were more closely acquainted with Pearce than Petitioner,
identified Petitioner as the shooter to cover for Pearce (See, e.g., Respondent’s Ex. 36, transcript
pp. 731, 738).
Petitioner has failed to show that no competent counsel would have pursued this
theory of defense and foregone a theory that Brittingham shot the victims. See, Chandler, 218
F.3d at 1315 (“[B]ecause counsel's conduct is presumed reasonable, for a petitioner to show that
the conduct was unreasonable, a petitioner must establish that no competent counsel would have
taken the action that his counsel did take.”) (citations omitted).
This is especially true
considering that the evidence established that the victims were shot with Pearce’s gun (see
Respondent’s Ex. 35, transcript pp. 634-36; Ex. 36, transcript p. 722), and there was no evidence
that Butterfield was ever in possession of Pearce’s gun. 6
And to the extent Petitioner argues
that Butterfield had a motive to kill the victims because there was evidence that showed it was
both Butterfield and Pearce’s money that was stolen, Pearce had the same motive.
6 Both Brittingham and Butterfield testified that Petitioner was in possession of Pearce’s gun shortly before the
victims were shot (See Respondent’s Ex. 34, transcript pp. 430, 472).
61
Petitioner contends that defense counsel should have presented an alternate theory that
Butterfield shot the victims because he is much shorter than Crawford, and the autopsy report
and photographs “strongly suggested” that Crawford was shot by someone significantly shorter.
This conclusion, however, is not supported by any evidence, let alone expert testimony, that the
shooter was “significantly shorter” than Crawford.
In fact, the medical examiner testified that
in light of Crawford’s wounds, the shooter could have been in “many potential positions” (i.e.,
“standing, crouching, lying down”) when shooting Crawford (Respondent’s Ex. 35, transcript p.
609), which could be one explanation for an upward trajectory of the bullet. And to the extent
that Petitioner argues that the shooter had to be “significantly shorter” than Crawford because the
State’s witnesses testified that “Crawford and the shooter were standing erect” when Crawford
was first shot (Doc. 1, docket p. 35), his argument is belied by the record.
Butterfield testified
that he only heard the two shots because it was too dark to see (Respondent’s Ex. 34, transcript p
432, 453).
him.
And Brittingham testified that he “couldn’t see” Crawford when Petitioner first shot
Rather, he heard Crawford say, “No. Please don’t” before he was shot and then heard
Crawford “hit the ground.”
(Id., transcript p. 476).
And during cross-examination when
Brittingham was asked whether he could see Tuttle and Crawford when they were out of the car,
he answered “No, not really.” (Id., transcript p. 494).
Finally, even if there was evidence that
showed the shooter was shorter than Crawford, Petitioner alleges that Pearce was significantly
shorter (5’6”) than Crawford (5’11”) (see Doc. 1, docket p. 27).
The evidence therefore would
have equally supported defense counsel’s theory that Pearce shot Crawford.
Petitioner has failed to demonstrate that the state court’s resolution of this claim was an
unreasonable application of Strickland or based on an unreasonable determination of the facts.
Accordingly, Ground Two, Subclaim i does not warrant federal habeas relief.
62
Subclaim j
Petitioner contends that trial counsel was ineffective in failing to challenge the validity of
the Indictment on the ground that is was not drafted, signed, and filed by an individual
authorized to do so.
In state court, Petitioner raised this claim as Ground 3, Subclaim 1 of his
Amended Rule 3.850 motion (Respondent=s Ex. 16, pp. 4-5).
In denying the claim, the state
court stated:
. . .Defendant claims that his trial counsel was ineffective by failing to file
a motion to Achallenge the validity@ of the indictment on the grounds that it was
drafted, signed and filed by an individual, Bruce Bartlett, who is not authorized to
sign indictments. . . .However, Bruce Bartlett, Esquire, is an assistant state
attorney appointed by the Sixth Judicial Circuit State Attorney, qualified to sign
felony indictments in the Sixth Judicial Circuit. See ' 27.181(2), Fla. Stat.
(2010). Further, Defendant does not allege how counsel=s failure to file a motion
challenging the indictment affected the outcome of his trial. Counsel cannot be
ineffective for not filing a motion that lacks legal merit and will fail. . . .This
claim is, therefore, denied.
(Respondent=s Ex. 17, pp. 2-3).
The state post-conviction court found that Bartlett was qualified to sign the Indictment,
and had counsel filed a motion challenging the validity of the Indictment on the ground that it
was not signed by an authorized individual, the motion would have been denied. The state
post-conviction court therefore concluded that Petitioner failed to show deficient performance
and prejudice.
The state post conviction court has answered the question of what would have happened
had defense counsel moved to dismiss the Indictment - the motion would have been denied.
Consequently, Petitioner has failed to establish deficient performance and prejudice.
See,
Callahan, 427 F.3d at 932.
Petitioner appears to contend that the state court=s decision is based on an unreasonable
63
determination of the facts.
He argues that Bartlett was not qualified to sign the Indictment
because he never signed a written oath affirming that he would faithfully perform his duties as an
assistant state attorney, and never filed the oath with the clerk of the circuit court, as required by
Fla. Stat., Section 27.181.
Section 27.181 provides, in pertinent part, that:
1) Each assistant state attorney appointed by a state attorney shall serve during the
pleasure of the state attorney appointing him or her. Each such appointment shall
be in writing and shall be recorded in the office of the clerk of the circuit court of
the county in which the appointing state attorney resides. No such appointee shall
perform any of the duties of assistant state attorney until he or she shall have
taken and subscribed to a written oath that he or she will faithfully perform the
duties of assistant state attorney and shall have caused the oath to be recorded in
the office of the clerk of the circuit court of the county in which the appointing
state attorney resides. Upon the recordation of such appointment and oath, the
appointing state attorney shall promptly cause certified copies thereof to be
transmitted to the Secretary of State. When any such appointment shall be
revoked, the revocation thereof shall be made in writing and shall be recorded in
the office of the clerk of the circuit court of the county in which the appointment
is recorded, and the state attorney executing the revocation shall forthwith cause a
certified copy thereof to be transmitted to the Secretary of State. If any such
appointee dies or resigns, the appointing state attorney shall promptly give written
notice of such death or resignation to the Secretary of State.
(2) Each assistant state attorney appointed by a state attorney shall have all of the
powers and discharge all of the duties of the state attorney appointing him or her,
under the direction of that state attorney. No such assistant state attorney may sign
informations unless specifically designated to do so by the state attorney. He or
she shall sign indictments, informations, and other official documents, as assistant
state attorney, and, when so signed, such indictments, informations, and
documents shall have the same force and effect as if signed by the state attorney.
Petitioner asserts that he contacted the clerk of the courts for both Pinellas County and
Pasco County, Florida, and they had records showing Bartlett was designated as an assistant state
attorney, but no record of his oath of office (see Respondent=s Ex. 10, p. 13).
This fails to show
by clear and convincing evidence that Bartlett never took his oath or failed to file it with the
courts. Accordingly, Petitioner fails to demonstrate that the state courts= denial of this claim was
based on an unreasonable determination of the facts.
64
Moreover, Petitioner has failed to demonstrate prejudice because he has not shown that,
had counsel moved to dismiss the Indictment, the motion would have been granted.
Additionally, even assuming that defense counsel should have moved to dismiss the Indictment,
there is no reasonable possibility that counsel=s motion to dismiss the Indictment would have
changed the results of the trial.
Assuming that defense counsel moved to dismiss the
Indictment, and the court granted the motion, the court would have allowed the State the
opportunity to correct and refile the Indictment. See Carroll v. State, 251 So. 2d 866, 870 (Fla.
1971) (AIf an indictment or information is quashed or dismissed the state must then elect to either
appeal or refile, or pursue both remedies, if available.@). Once the State refiled the Indictment
signed by a qualified attorney, Petitioner would have faced the same charges, and there is no
reasonable basis to believe the outcome would have been different.
Petitioner has failed to show that the state courts= denial of this claim involved an
unreasonable application of Strickland or was based on an unreasonable determination of the
facts. Accordingly, Ground 2, Subclaim i does not warrant federal habeas relief.
Subclaim k
Petitioner argues that he is entitled to relief because of the cumulative effect of counsel=s
alleged errors. Considering there is no Supreme Court precedent applying the cumulative error
doctrine to claims of ineffective assistance of counsel, this Court cannot say that the state court’s
rejection of Petitioner’s claim is contrary to or an unreasonable application of clearly established
federal law. See Reese v. Sec’y, Fla. Dep’t of Corr., 675 F.3d 1277, 1287-88 (11th Cir. 2012)
(“The Supreme Court has reiterated, time and again, that, in the absence of a clear answer—that
is, a holding by the Supreme Court—about an issue of federal law, we cannot say that a decision
of a state court about that unsettled issue was an unreasonable application of clearly established
65
federal law.”); Hill v. Davis, 781 F. App’x 277, 280–81 (5th Cir.), cert. denied, 140 S. Ct. 389
(2019) (“The Supreme Court has never squarely held that the cumulative error doctrine governs
ineffective assistance of counsel claims.”). The Supreme Court has held, however, in relation to
an ineffective assistance of counsel claim, that Athere is generally no basis for finding a Sixth
Amendment violation unless the accused can show how specific errors of counsel undermined
the reliability of the finding of guilt.@
648, 659 n.26 (1984)).
Id. at 564-65 (quoting United States v. Cronic, 466 U.S.
Petitioner has not met his burden to show that he is entitled to relief on
any of the ineffective assistance claims presented in his federal habeas petition. Accordingly, he
cannot show that relief is warranted on his claim of cumulative error.
Ground 2, Subclaim k
therefore warrants no relief.
Ground Three
Petitioner contends that the State failed to disclose a deal it made with Butterfield, one of
two witnesses who identified Petitioner as the shooter, in exchange for his testimony against
Petitioner.
Specifically, he alleges that Butterfield “made a deal with law enforcement officers
to avoid prosecution,” and at a pretrial hearing, the state attorney denied that any deal existed
after failing in its duty to learn of Butterfield’s deal with law enforcement (Doc. 1, docket p. 39).
He argues that the State’s misconduct violated Brady v. Maryland, 373 U.S. 83 (1963).
He
further argues that the State committed a violation under Giglio v. United States, 405 U.S. 150
(1972), by 1) allowing Butterfield to falsely testify that he had no incentive to testify against
Petitioner, and 2) misleading the jury during closing argument in stating that Butterfield had no
reason to falsely testify against Petitioner.
This claim was presented in state court in Ground 4 of Petitioner’s Rule 3.850 motion
(Respondent’s Ex. 16 pp. 23-24).
In denying the claim, the state post-conviction court stated:
66
Defendant claims that the state committed Brady and Giglio violations by
suppressing that a witness, Butterfield, "made a deal with law enforcement" to
avoid criminal charges and that that the prosecutor misled the jury on this issue
during closing arguments. The Defendant claims he was prejudiced because
Butterfield's credibility was an important issue and there was a reasonable
probability that the outcome of the trial would have been different if the state had
disclosed this evidence. To claim a Brady violation, a defendant must show (1)
that the evidence at issue is favorable to the accused, either because it is
exculpatory, or because it is impeaching; (2) the evidence was suppressed by the
state, either willfully or inadvertently; and (3) prejudice ensued. Under the
prejudice prong, the defendant must show that the suppressed evidence is
material. Reed v. State, 875 So. 2d 415 (Fla. 2004); citing Strickler v. Greene,
527 U.S. 263, 282-82 (1999). To establish prejudice or materiality under Brady,
a defendant must demonstrate a reasonable probability that in light of the entire
record the jury verdict would have been different had the suppressed information
been used at trial.
First, Defendant does not describe the purported deal made by law
enforcement with Butterfield. However, Defendant was clearly aware that law
enforcement had determined to seek assistance from Butterfield rather than
charging Butterfield with the instant crimes. According to Defendant's own
motion, Butterfield and Brittingham offered numerous statements and gave
depositions regarding Defendant's involvement in this case. Further, during the
course of the trial, Butterfield testified in detail about his role in the shootings and
admitted that he had not been charged with these crimes. Trial transcript, p.
419-461. The record is, therefore, clear that Defendant possessed at trial the
evidence he now claims the State withheld in violation of Brady. Accordingly,
Defendant cannot demonstrate that he was prejudiced by the state not specifically
disclosing an alleged deal made with this witness. This claim lacks merit and is
denied.
To prove a Giglio violation it must be shown that (l) some testimony at
trial was false; (2) the prosecutor knew the testimony was false; and (3) the
statement was material. See Craig v. State, 685 So. 2d 1224 (Fla. 1996). The
Defendant alleges that the prosecutor misled the jury by arguing that Butterfield
had no reason to lie when testifying. First, the Defendant has failed to allege or
demonstrate that any of Butterfield's testimony was false. In fact, Defendant does
not even allege that Butterfield gave false testimony but instead claims that the
prosecutor “misled the jury”. Substantive claims of prosecutorial misconduct
could and should have been raised on direct appeal and thus are procedurally
barred from consideration in a postconviction motion. Spencer v. State, 842 So.
2d 52, 60 (Fla. 2003).
Accordingly, the Defendant has failed to show that Butterfield gave false
testimony, that the State knew that the testimony was false or that the testimony
67
was material.
This claim lacks merit and is denied.
(Respondent’s Ex. 17, pp. 19-20) (footnotes omitted).
1. Analysis of Brady 7 claim
“Brady requires the state to disclose material exculpatory evidence in its
possession. The duty to disclose required by Brady includes the disclosure of evidence
that may be used for impeachment purposes and evidence that may be used to attack the
thoroughness and even the good faith of the investigation[.]” Consalvo v. Secretary for
Department of Corrections, 664 F.3d 842, 844–45 (11th Cir.2011) (quotation and citation
omitted) (alteration in original). To obtain relief on his Brady claim, Petitioner must
“establish (1) the government possessed evidence favorable to him; (2) the defendant did
not possess the evidence and could not have obtained it with reasonable diligence; (3) the
government suppressed the favorable evidence; and (4) the evidence was material.”
Lamarca v. Sec’y, Dep’t of Corr., 568 F.3d 929, 941 (11th Cir.2009) (quotation omitted).
“Evidence would be material if it is reasonably probable that a different outcome would
have resulted if the government had disclosed the evidence. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Ferguson v. Sec’y for
the Dep’t of Corr., 580 F.3d 1183, 1205–06 (11th Cir.2009) (quotations and citation
omitted).
Under those requirements, Petitioner’s Brady claim clearly fails.
The state
post-conviction court correctly found that Petitioner “was clearly aware that law
enforcement had determined to seek assistance from Butterfield rather than charging
Butterfield with the instant crimes.” Petitioner contends that in Butterfield’s March 26,
68
2001 deposition, he admitted to making a deal with law enforcement to avoid prosecution
(See Doc. 56, Ex. 5, transcript pp. 29-30).
That deposition, at which defense counsel
was present and questioned Butterfield, was taken before Petitioner’s trial in May 2001.
Accordingly, because Petitioner’s attorney knew about Butterfield’s alleged deal with
law enforcement before trial, the evidence was not “suppressed,” and there was no Brady
violation.
See Felker v. Thomas, 52 F.3d 907, 910 (11th Cir.), opinion supplemented on
denial of reh'g, 62 F.3d 342 (11th Cir. 1995) (“We have held numerous times that there is
no suppression, and thus no Brady violation, if either the defendant or his attorney knows
before trial of the allegedly exculpatory information.”).
Even if the “deal with law enforcement” was suppressed by the State, it was not
material.
During his deposition, Butterfield testified that there was no agreement that he
would not be prosecuted in exchange for his testimony (Id.).
At worst, he testified that
while he was interrogated, law enforcement said it would benefit him to tell the truth
(Id.).
This was not an agreement between Butterfield and law enforcement that
Butterfield would not be prosecuted in exchange for his cooperation.
Rather, it was an
interrogation tactic employed by the officers to convince Butterfield that he should
cooperate.
Accordingly, Petitioner’s Brady claim fails because there is no reasonable
probability that the outcome of the trial would have been different, since there is no
indication that there was a deal between the State and Butterfield, and that a deal was
suppressed.
See Bradley v. Nagle, 212 F.3d 559, 566 (11th Cir. 2000) (“Under Brady,
excluded evidence is material ‘if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different.’”)
7 Brady v. Maryland, 373 U.S. 83 (1963).
69
(quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
2. Analysis of Giglio claim 8
Petitioner contends that after Butterfield testified falsely, the prosecutor misled
the jury during closing argument by stating that Butterfield had no reason to lie to law
enforcement.
He argues that this was a Giglio violation because Butterfield had a
reason to lie, namely, to avoid having the State bring criminal charges against him.
In Giglio, the Supreme Court held that when the prosecution solicits or fails to
correct known false evidence, due process requires a new trial when “the false testimony
could in any reasonable likelihood have affected the judgment of the jury.” 405 U.S. at
154 (quotation and citation omitted) (ellipsis omitted). “Giglio error is a species of Brady
error that occurs when the undisclosed evidence demonstrates that the prosecution’s case
included perjured testimony and that the prosecution knew, or should have known, of the
perjury.” Ventura v. Attorney Gen., Fla., 419 F.3d 1269, 1276–77 (11th Cir.2005)
(quotation and citation omitted). “To establish a Giglio claim, a habeas petitioner must
prove: ‘(1) the prosecutor knowingly used perjured testimony or failed to correct what he
subsequently learned was false testimony; and (2) such use was material, i.e., that there is
any reasonable likelihood that the false testimony could ... have affected the judgment.’”
Guzman v. Sec’y, Dep’t of Corr., 663 F.3d 1336, 1348 (11th Cir. 2011) (quoting Ford v.
Hall, 546 F.3d 1326, 1332 (11th Cir.2008)).
This claim warrants no relief because Petitioner fails to demonstrate that
Butterfield’s testimony was perjurious. Petitioner alleges (see Doc. 1, docket p. 39) the
following testimony by Butterfield was false:
70
Q.
Are you contacted by law enforcement?
A.
Yes, sir. I was - - when I was asleep in Faunce’s bed - - because Faunce
asked me to stay at his house until he would give me a call, and I was supposed to
let him know if the heat was up or down or whatever - - and then I was woke up
four or five hours later, at gunpoint.
Q.
By the Pasco County Sheriff’s Office?
A.
Yes, sir.
Q.
Were you interviewed by detectives from the Pasco County Sheriff’s
Office?
A.
Yes, sir, I was.
Q.
And did you originally tell them what you were telling the members of
this jury here today?
A.
No, sir.
Q.
Did you lie to them?
A.
Yes, sir.
Q.
What did you tell them?
A.
I told them - - first I told them I didn’t even – Faunce said, “Pull over,” on
41, before we even made it to 54, and asked us if anybody was down with this, if
they wanted out, they could get out, if they wasn’t sure they wanted to go up to
the house and do this. And I told them I got out of the car.
Q.
Okay.
Did you tell them anything else?
A.
I think I told them a couple of different things, yes, sir, but I don’t - - I
forget what I said.
Q.
All right.
jury?
A.
Yes, sir.
Q.
Did you ultimately tell them what you told the members of this
Did you cooperate with the investigation in this case?
8 Giglio v. United States, 405 U.S. 150 (1972).
71
A.
Yes, sir, I did.
Q.
Did you take the detectives to the Howard Franklin bridge where the gun
was thrown?
A.
Yes, sir. I did.
Q.
Did you show them where the gun was thrown?
A.
Yes, sir. I showed them at what point in the bridge the gun was thrown
from, and we also took them to where the kids were shot at.
(Respondent’s Ex. 34, transcript pp. 438-39).
Petitioner has failed to explain how any of the above testimony is false.
Moreover,
nowhere in that testimony did Butterfield state or imply that he did not agree to cooperate with
law enforcement in exchange for a promise not to press charges against him.
Therefore,
because Petitioner has failed to demonstrate that the State solicited or failed to correct false
testimony from Butterfield, his Giglio claim fails. See Rodriguez v. Sec’y, Fla. Dep’t of Corr.,
756 F.3d 1277, 1302 (11th Cir. 2014) (“A Giglio violation occurs when the prosecution solicits
or fails to correct false or perjured testimony and ‘the false testimony could ... in any reasonable
likelihood have affected the judgment of the jury.’”) (citation and quotation marks omitted).
The state court’s resolution of Petitioner’s Brady and Giglio claims was neither contrary
to nor an unreasonable application of clearly established federal law.
Accordingly, Ground
Three warrants no federal habeas relief.
Ground Four
Petitioner contends that newly discovered evidence casts doubt on his conviction.
He
asserts that the surviving victim, Stephen Tuttle, recanted his testimony at trial that although he
did not see who shot him, Petitioner was the only person who exited the car with him when he
was shot.
Petitioner states that Tuttle now says he remembers that Butterfield also exited the
72
vehicle with them.
Petitioner argues that this new evidence places Butterfield in such a position
that he could have been the person who shot Tuttle, and therefore creates reasonable doubt that
Petitioner shot Tuttle.
He argues that this new evidence was sufficient to warrant a new trial
under Florida law, and therefore the trial court erred in denying his motion for a new trial (Doc.
2, pp. 20-21). 9
A petitioner can only obtain federal habeas relief if he is in custody in violation of the
Constitution, laws, or treaties of the United States.
28 U.S.C. ' 2254(a).
Accordingly, a claim
that raises no federal constitutional issue is not cognizable in a federal habeas petition.
v. Booth, 861 F.2d 1507, 1508 (11th Cir. 1988).
Branan
This claim is not cognizable on federal habeas
review, as it raises only a state law issue for which federal jurisdiction does not lie.
See
Wainwright v. Goode, 464 U.S. 78, 83 (1983) (A[F]ederal courts may intervene in the state
judicial process only to correct wrongs of a constitutional dimension.@); Barclay v. Florida, 463
U.S. 939, 958-959 (1983) (AMere errors of state law are not the concern of this court . . . unless
they rise for some other reason to the level of a denial of rights protected by the United States
Constitution.@) (citations omitted).
In his reply, Petitioner asserts that he Aproperly presented this claim to the state court,
who refused to hear it and allow Petitioner an opportunity to be heard.
basic federal rights of fairness and equal protection.@
This violates Petitioner=s
(Doc. 30-2, docket p. 10).
This is a
claim of constitutional error in the state post-conviction review process, which is not cognizable
on federal habeas review.
See Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir. 1986) (claim
that post-conviction court erred by not holding a hearing or attaching portions of the record to the
9
Petitioner does not contend that Tuttle=s new Atestimony@ establishes that he is actually innocent of the
crime for which he was convicted.
73
order failed to state a cognizable habeas corpus claim); Mitchell v. Wyrick, 727 F.2d 773, 774
(8th Cir. 1984) (AEven where there may be some error in state post-conviction proceedings, this
would not entitle appellant to federal habeas corpus relief since appellant=s claim here represents
an attack on a proceeding collateral to detention of appellant and not on the detention itself.@)
(quotation and citation omitted).
Accordingly, Ground Four does not warrant federal habeas relief.
Ground Five
Petitioner contends that he was denied due process and a fair and impartial jury, and the
state trial court was without jurisdiction to proceed, because an oath was not properly
administered to the jury panel.
He asserts that although a bailiff administered an oath to the
jury panel, the bailiff Ahad no authority whatsoever to administer oaths to jurors. . . .@
He
argues that without a Aproper@ oath, his trial Anever officially commenced,@ the trial court lacked
jurisdiction, all the proceedings are Anull and void,@ and his right to Aa fair trial by an impartial
jury is reduced to nothing more than a hollow promise.@
Petitioner raised this claim on appeal from his resentencing (Respondent=s Ex. 10 - Initial
Brief, pp. 17-24).
Ex. 13).
The state appellate court affirmed without a written opinion (Respondent=s
The state appellate court=s denial of this claim was not contrary to clearly established
federal law. Petitioner has failed to cite, and the court has been unable to locate, a case holding
that the federal Constitution requires a trial court to swear a jury panel prior to voir dire, much
less one holding that an oath given to a jury panel prior to voir dire is unconstitutional where
administered by an individual not specifically authorized to do so under state law. See, e.g.,
United States v. Turrietta, 696 F.3d 972, 982 (10th Cir.2012) (ANo federal court in the history of
American jurisprudence has held the constitutional guarantee of trial by jury to necessarily
74
include trial by sworn jury.@); Robertson v. McKee, 2012 U.S. Dist. LEXIS 10715, at *10 (E.D.
Mich. Jan. 30, 2012) (APetitioner has failed to show that the federal Constitution is violated
where the trial court fails to swear a prospective jury pool prior to voir dire@).
Moreover, Petitioner=s assertion that the oath was inadequate to confer jurisdiction on the
trial court because under Florida law the bailiff was not authorized to administer an oath to a jury
panel fails to present a claim cognizable on federal habeas review.
habeas review does not lie for errors of state law.
It is well established that
See Estelle v. McGuire, 502 U.S. 62, 67-68
385 (1991).
Finally, the court agrees with Respondent that to the extent Petitioner attempts to allege a
federal due process violation, the claim is procedurally defaulted because he failed to fairly
present such a claim to the state courts. When Petitioner raised this claim on appeal from his
resentencing, he framed his argument only in terms of state law (Respondent=s Ex. 10 - Initial
Brief, pp. 17-24).
He did not fairly present a federal constitutional violation.
Because
Petitioner did not alert the state appellate court that his claim was federal in nature, he did not
satisfy the exhaustion requirement of ' 2254.
Any future attempt to exhaust state remedies would be futile under Florida law, since
Petitioner may not take a second appeal of his conviction. Therefore, any federal constitutional
claim is procedurally defaulted. A procedural default may be excused through a showing of
cause for the default and prejudice arising therefrom, see Coleman, 501 U.S. at 750, or a
demonstration that failure to consider the claim will result in a Afundamental miscarriage of
justice,@ see Murray, 477 U.S. at 495-96. Petitioner has failed to show he is entitled to federal
review under either exception to the procedural bar.
Accordingly, Ground Five does not warrant federal habeas relief.
75
Ground Six
Petitioner complains that his Afundamental right to have the trial judge physically present
at the trial@ was violated because the judge was not present when the bailiff administered the oath
to the jury panel.
Petitioner raised this claim on appeal from his resentencing (Respondent=s
Ex. 10 - Initial Brief, pp. 25-29).
The state appellate court affirmed without a written opinion
(Respondent=s Ex. 13).
The state appellate court=s denial of this claim was not contrary to clearly established
federal law.
Petitioner has not cited any binding authority, and this Court is aware of none,
from the United States Supreme Court holding that the issuance of the oath to the jury panel
prior to voir dire is a critical stage of the trial during which the judge must be present. See, e.g.,
Memminger v. People, 2009 U.S. Dist. LEXIS 131080, at *29 (S.D.N.Y. Sept. 9, 2009) (Athe
judge must be present for >substantive conduct of functional portions of the trial=, but not for
>performance of mechanical repetitions.=@) (quoting United States v. Grant, 52 F.3d 448, 450 (2d
Cir. 1995)).
Accordingly, Ground Six does not warrant federal habeas relief.
Any claims not specifically addressed herein have been determined to be without merit.
It is therefore ORDERED AND ADJUDGED as follows:
1. The Petition for Writ of Habeas Corpus (Doc. No. 1) is DENIED.
2. The Clerk of the Court shall enter judgment accordingly and close this case.
3. This Court should grant an application for certificate of appealability only if the
Petitioner makes Aa substantial showing of the denial of a constitutional right.@ 28 U.S.C. '
76
2253(c)(2).
Petitioner has failed to make this showing. 10 Accordingly, a Certificate of
Appealability is DENIED in this case.
And because Petitioner is not entitled to a Certificate of
Appealability, he is not entitled to proceed on appeal in forma pauperis.
DONE AND ORDERED in Tampa, Florida on March 25, 2020.
Copies to:
Petitioner, pro se
Counsel of Record
10
The district court must issue or deny a certificate of appealability when it enters a final order adverse to
the applicant. See Rule 11 of the Rules Governing Section 2254 Cases In the United States District Courts.
77
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