Washington v. State

835 So. 2d 1083, 27 Fla. L. Weekly Supp. 960, 2002 Fla. LEXIS 2405, 2002 WL 31519919
Supreme Court of Florida·Decided November 14, 2002·No. SC00-1435, SC01-872·Published·Cited by 6 cases

Opinion

835 So.2d 1083 (2002)

Anthony Neal WASHINGTON, Appellant,
v.
STATE of Florida, Appellee.
Anthony Neal Washington, Petitioner,
v.
Michael W. Moore, Respondent.

Nos. SC00-1435, SC01-872.

Supreme Court of Florida.

November 14, 2002.
Rehearing Denied January 10, 2003.

*1084 Joseph T. Hobson, Assistant CCRC, Ruck P. DeMinico, Assistant CCRC, and Richard E. Kiley, Assistant CCRC, Capital Collateral Regional Counsel-Middle Region, Tampa, FL, for Appellant, Petitioner.

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

PER CURIAM.

Anthony Neal Washington appeals an order of the circuit court denying his first motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 following an evidentiary hearing. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. We affirm. Washington also petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(9), Fla. Const. We deny the petition.

I. FACTS

The relevant facts are set forth fully in this Court's opinion on direct appeal.[1] Alice Berdat in 1989 was found beaten to death in her bedroom. Washington, who was an inmate in a local work release center, was arrested, tried, and convicted of first-degree murder, burglary with a battery, and sexual battery. Evidence supporting the convictions included the following: DNA test results matched his semen to that of semen found at the scene; microscopic test results matched his hair to that of hair found at the scene; he possessed and sold the victim's watch the day after the crime; and he was placed in close proximity to the victim's home at the time of the crime.

The trial court overrode the jury's life recommendation and imposed a sentence of death based on four aggravating circumstances[2] and three nonstatutory mitigating circumstances.[3] Washington appealed, *1085 raising nine issues.[4] We affirmed. Washington in 1997 filed in circuit court a "shell" motion for postconviction relief under Florida Rule of Criminal Procedure 3.850; he filed his present amended motion in 1999. The circuit court held a two-day evidentiary hearing on the issue of ineffective assistance of penalty phase counsel; the court then denied relief. Washington appeals, raising seven issues.[5] He also has filed in this Court a petition for a writ of habeas corpus, raising two issues.[6]

II. RULE 3.850 MOTION

During the penalty phase of the trial, Washington called one lay witness (his mother), who testified in personal terms concerning Washington's character, and one expert (Dr. Merin), who testified as to Washington's potential for rehabilitation. Washington now claims that trial counsel was ineffective in failing to present additional mitigating evidence and in failing to provide Dr. Merin with background information. He claims that if counsel had been effective in these regards, the trial court would have been unable to override the jury's life recommendation. At the evidentiary hearing, Washington presented nine witnesses, including relatives, friends, a psychiatrist, lead trial counsel (Franklyn Louderback), and trial co-counsel (Tom McCoun). The gist of their testimony was that Washington suffered from a drug problem that was never brought out at trial.

This Court in Bruno v. State, 807 So.2d 55 (Fla.2001), articulated the following standards:

The test to be applied by the trial court when evaluating an ineffectiveness claim is two-pronged: The defendant must show both that trial counsel's performance was deficient and that the defendant was prejudiced by the deficiency. The standard of review for a trial court's ruling on an ineffectiveness claim also is two-pronged: The appellate court must defer to the trial court's findings on factual issues but must review the court's ultimate conclusions on the deficiency and prejudice prongs de novo.

Bruno, 807 So.2d at 61-62 (footnotes omitted).

After hearing the testimony of the witnesses at the evidentiary hearing, the circuit court below denied this claim. The court explained:

This one aspect of defendant's life— his serious drug addiction that provides these disorders, carries baggage that a sentencing jury would have to hear that his trial lawyer didn't want them to hear. [Trial counsel] didn't want the *1086 jury to know the defendant was a drug addict. He didn't want them to know the defendant sold drugs, sometimes making $3,000 per week, robbed his girlfriend and others, and stole from his mother, his brother, and many others, to support his drug habit. He didn't want the Pinellas County jury to know he committed a burglary, or sold drugs. The totality of all this may not have been considered mitigating by Mr. Washington's jury. Had they known all this, they may well have recommended a death sentence. Counsel cannot be deemed ineffective for not explaining a background of drug addiction and presenting it to Dr. Merin and thus to the jury when he knew this may not produce a good result for his client. He knew about the defendant's drug use—he simply elected not to explore and exploit it because he didn't want to go there. Knowing what juries will accept as mitigating and what they won't is not ineffectiveness. To the contrary, omitting all this from the jury's knowledge proved to be effective. It got the defendant a life recommendation in a very aggravated case.

The court concluded that even if the additional evidence would have precluded the override, omission of the evidence still would not have constituted ineffectiveness:

In other words, if the defendant could convince this court, which he could not, that the additional evidence presented at the evidentiary hearing would have precluded this court's override, the defendant is not entitled to relief. If the defendant can convince the Florida Supreme Court that the additional evidence presented at the evidentiary hearing would have resulted in that Court's reversal of this court's override, the defendant is not entitled to relief. The reason is that before the defendant is entitled to any relief, BOTH prongs of the Strickland[7] test must be met. The defendant has not been able to establish either prong, but he clearly has failed to establish the first prong, that trial counsel's performance was deficient. To do this, he must have established that counsel made "errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." This he has been unable to do. The defendant had effective counsel at the penalty phase of his trial.

Our review of the record shows that the circuit court's findings of fact on this claim are supported by competent substantial evidence and its ultimate conclusions on the deficiency and prejudice prongs comport with the law. Penalty phase counsel made a strategic decision not to pursue drug addiction as a mitigating circumstance and in fact won a life recommendation from the jury. We find no merit to this claim.

Next, Washington claims that the trial court erred in summarily denying his claim of ineffective assistance of guilt phase counsel. We disagree. The Court in LeCroy v. Dugger, 727 So.2d 236 (Fla. 1998), articulated the following standard:

The standard for determining whether an evidentiary hearing is required on an ineffectiveness claim

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Washington v. State, 835 So. 2d 1083, 27 Fla. L. Weekly Supp. 960, 2002 Fla. LEXIS 2405, 2002 WL 31519919 (Fla. 2002).

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