PER CURIAM.
Michael Wayne Shellito appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. As explained below, we affirm the postconviction court's denial of relief as to Shellito's guilt phase claims. We reverse the postconviction court's denial of relief as to Shellito's claim of ineffective assistance of trial counsel at the penalty phase. Accordingly, we vacate the sentence of death and remand for a new penalty phase proceeding. We also deny his petition for writ of habeas corpus.
Michael Shellito ("Shellito") was convicted and sentenced to death for the murder of Sean Hathorne in Duval County. The facts of this case are set forth in Shellito's direct appeal of his conviction and death sentence:
Shellito v. State, 701 So.2d 837, 838-40 (Fla.1997) (footnote omitted), cert. denied, 523 U.S. 1084, 118 S.Ct. 1537, 140 L.Ed.2d 686 (1998). No additional evidence was offered at the Spencer
Shellito raises the following eight issues in his appeal of the postconviction court's denial of his 3.851 motion: (1) whether trial counsel provided ineffective assistance of counsel at the penalty phase; (2) whether trial counsel provided ineffective assistance of counsel at voir dire and at the guilt phase; (3) whether the State committed Brady or Giglio violations; (4) whether Shellito was rendered adequate mental health assistance under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); (5) whether trial counsel provided ineffective assistance of counsel regarding prosecutor's arguments at the penalty phase; (6) whether Shellito's constitutional
Shellito also raises the following six issues in his habeas petition: (1) whether appellate counsel was ineffective in failing to raise a claim that the trial court erred in sentencing Shellito when it relied on materials not presented in open court; (2) whether appellate counsel was ineffective for not raising a claim that Shellito was absent from critical stages of his trial; (3) whether appellate counsel was ineffective for failing to raise a claim that evidence of Shellito's prior convictions was inadmissible; (4) whether appellate counsel was ineffective for failing to raise a claim that the use of Shellito's juvenile conviction as an aggravator violated Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); (5) whether appellate counsel was ineffective for failing to raise a claim that the trial court precluded Shellito from presenting mitigation in violation of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), and Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987); and (6) whether Florida's death penalty statute violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). We first consider Shellito's ineffective assistance of trial counsel claims. We then address Shellito's claims as they relate to the guilt phase.
Following the United States Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:
Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citations omitted). Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court's factual findings that are supported by competent, substantial evidence, but reviewing the circuit court's legal conclusions de novo. See Mungin v. State, 79 So.3d 726, 737 (Fla. 2011); Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).
There is a strong presumption that trial counsel's performance was not deficient. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. "A fair assessment of attorney performance requires that every effort be made 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." Id. at 689, 104 S.Ct. 2052. The defendant carries the burden to "overcome the presumption that, under the circumstances, the challenged
Shellito asserts that his trial counsel was ineffective for failing to question prospective jurors about "major issues," such as drugs, alcohol, abuse, and mental illness. The postconviction court found that trial counsel's decision to not question the prospective jurors with respect to their views on these subjects was tactical. Shellito was solely represented at trial by Refik Eler. Eler testified at the evidentiary hearing that Shellito's case was one of his first capital appointments as lead counsel. Eler maintained that he made the strategic decision to not present evidence of Shellito's alcohol and marijuana use at trial. Eler testified that in Duval County, in his experience, "the juror venire are not very sympathetic to [drugs and alcohol] as an excuse and even to an extent ... aggravation." Shellito has failed to demonstrate that any selected juror was biased or had an animus towards the mentally ill or individuals with substance abuse problems. See Davis v. State, 928 So.2d 1089, 1117 (Fla.2005). Shellito has failed to demonstrate that Eler was ineffective in this regard.
Shellito also argues that Eler allowed selection of jurors who had friends or relatives employed by law enforcement and who possessed technical knowledge pertinent to the case. Shellito asserts that Eler was ineffective in failing to determine if the prospective jurors could disregard their specialized training. The postconviction court found Eler's testimony — that he conferred with Shellito about the selection of jurors — to be "more credible and more persuasive" than Shellito's allegations. The specialized training possessed by the particular jurors does not in and of itself rise to the level of a for cause challenge and does not demonstrate actual bias. Shellito's claim is speculative. See Green v. State, 975 So.2d 1090, 1105 (Fla.2008) ("[A]n allegation that there would have been a basis for a for cause challenge if counsel had followed up during voir dire with more specific questions is speculative."). Because Shellito has failed to prove that Eler was deficient during voir dire, we need not address the prejudice prong.
Shellito claims that Eler was ineffective for failing to present sufficient evidence implicating Stephen Gill as the actual shooter. Shellito argues that Shellito's mother's testimony at trial that Gill confessed to the murder would have been substantiated had the defense investigator also testified. Eler testified at the evidentiary hearing that listing his investigator as a trial witness could have resulted in the revealing of facts and circumstances of the investigation. We find that Shellito
Shellito contends that Eler was ineffective in failing to present evidence of Shellito's alcohol and marijuana use to establish a voluntary intoxication defense.
Shellito also claims that Eler was ineffective when he opened the door to Theresa Ritzer's highly prejudicial testimony. On direct examination, Ms. Ritzer testified that Shellito confessed to her shortly after the murder. Eler attempted to discredit Ms. Ritzer's testimony on cross-examination by having her admit that she failed to mention Shellito's confession in her initial statement to the police. On redirect, however, Ms. Ritzer testified that Shellito held a gun to her head and said that if she talked then he would kill her because he had killed before. At the evidentiary hearing, Eler testified that it was very important for him to delve into this area and he did not anticipate opening the door to damaging evidence. The postconviction court found that Eler's decision to question Ms. Ritzer on this matter was tactical. We find that Shellito has failed to prove that Eler was deficient in his decision to impeach Ms. Ritzer after she had testified to Shellito's murder confession. See Owen v. State, 986 So.2d 534, 553 (Fla.2008) (finding counsel not ineffective "for making a strategic decision to present evidence, even when in hindsight that decision opened the door to admission of evidence that is not entirely favorable to the defendant").
Shellito contends that he was provided ineffective assistance of trial counsel during the penalty phase based on Eler's failure to adequately investigate and present mitigating evidence. Penalty phase claims of ineffective assistance of counsel are also reviewed under the two-prong test established by Strickland, and "[i]n reviewing a claim that counsel's representation was ineffective based on a failure to investigate or present mitigating evidence, the Court requires the defendant to demonstrate that the deficient performance deprived the defendant of a reliable penalty phase proceeding." Hoskins v. State, 75 So.3d 250, 254 (Fla.2011). In determining
"It is unquestioned that under the prevailing professional norms ... counsel ha[s] an `obligation to conduct a thorough investigation of the defendant's background.'" Porter v. McCollum, 558 U.S. 30, 39, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (quoting Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)); see also Hannon v. State, 941 So.2d 1109, 1124 (Fla.2006) ("Pursuant to Strickland, trial counsel has an obligation to conduct a reasonable investigation into mitigation."). Moreover, counsel must not ignore pertinent avenues for investigation of which he or she should have been aware. See Porter, 558 U.S. at 40, 130 S.Ct. 447. "[I]t is axiomatic that `counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.'" Hurst v. State, 18 So.3d 975, 1008 (Fla.2009) (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052). However, "[c]ounsel's decision not to present mitigation evidence may be a tactical decision properly within counsel's discretion." Hannon, 941 So.2d at 1124. This Court has found counsel's performance deficient where counsel "never attempted to meaningfully investigate mitigation" although substantial mitigation could have been presented. Asay v. State, 769 So.2d 974, 985 (Fla.2000). We now apply these principles to counsel's performance in this case.
On July 21, 1995, the jury convicted Shellito of the murder of Sean Hathorne, and the penalty phase commenced exactly one month later. In reviewing the mitigation evidence presented at the penalty phase, we stated on direct appeal:
Shellito, 701 So.2d at 844 n. 4, 844-45.
The record reveals that on April 17, 1995, Eler moved for a confidential psychiatric evaluation of Shellito by Dr. Ernest Miller. In this motion, Eler raised the possibility of Shellito being mentally incompetent to proceed and insane. On April 17, 1995, the trial court granted Shellito a confidential psychiatric evaluation.
According to his testimony at the evidentiary hearing, Eler's decision not to have Dr. Miller testify at the penalty phase was based on his conversation with Dr. Miller on August 16, 1995.
The postconviction court did not find Eler ineffective, reasoning that it was within the wide range of professional judgment for Eler to make a tactical decision to have certain aspects of Shellito's background presented at trial through family
As previously noted, this was one of counsel's first capital cases where he was lead counsel and handled both the guilt and penalty phases of the trial. He was appointed to represent Shellito on February 22, 1995. While counsel indicated that he conducted some preparation for the penalty phase during the guilt phase, the record shows that counsel met with the defendant's parents on June 26, 1995, shortly before the guilt phase of the trial began. It was after the guilt phase, during the month of August 1995, that counsel sought and obtained medical and school records for a penalty phase that began on August 21, 1995. The reports indicated that Shellito had some mental health issues. Although Dr. Miller, who had performed a competency evaluation, was consulted at this point, there was no true follow-up on the matters indicated in the various reports. Yet counsel made a marginal attempt to present organic brain damage and other impairment as mitigation.
Under these circumstances, Eler was deficient in failing to follow up with the indications of Shellito's mental health issues, and in failing to have Shellito's mental health issues presented by an expert at trial to explain their significance and impact on his behavior at the time of the murder. Having determined that Shellito has satisfied the deficiency prong, we now consider the prejudice prong.
Shellito asserts that the mitigation presented at the evidentiary hearing was qualitatively and quantitatively different from that presented at trial. "Penalty phase prejudice under the Strickland standard is measured by whether the error of trial counsel undermines this Court's confidence in the sentence of death when viewed in the context of the penalty phase evidence and the mitigators and aggravators found by the trial court." Hurst, 18 So.3d at 1013. That standard does not "require a defendant to show `that counsel's deficient conduct more likely than not altered the outcome' of his penalty proceeding, but rather that he establish `a probability sufficient to undermine confidence in [that] outcome.'" Porter, 558 U.S. at 44, 130 S.Ct. 447 (quoting Strickland, 466 U.S. at 693-94, 104 S.Ct. 2052). "To assess that probability, [the Court] consider[s] `the totality of the available mitigation evidence ...' and `reweig[hs] it against the evidence in aggravation.'" Id. at 41, 130 S.Ct. 447 (quoting Williams v. Taylor, 529 U.S. 362, 397-98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). We now review the evidence adduced during the evidentiary hearing.
No mental health mitigation, statutory or otherwise, was considered or found by the trial court. Yet, at the postconviction evidentiary hearing, the defense presented mental health evidence that could have been presented to the penalty phase jury. Dr. William Riebsame, a psychologist, evaluated Shellito in May of 2004. At the evidentiary hearing, Dr. Riebsame opined that Shellito's organic brain damage probably occurred after choking on milk when he was just a few days old. According to Dr. Riebsame, this incident might have been a precursor to the cognitive difficulties
Dr. Riebsame opined that at the time of the murder, Shellito was under the influence of extreme mental or emotional disturbance based on his organic brain dysfunction, mood disorder, and erratic behavior which could have been a function of his bipolar disorder, and that Shellito's ability to appreciate and conform his conduct to the requirements of the law was impaired. Dr. Riebsame also opined that at the time of the murder, Shellito had a mental age of fourteen or fifteen years, an emotional age of twelve or thirteen years, an IQ in the low-average range, the presence of organic brain damage, erratic mood swings that often precipitated either depressed episodes that caused suicide attempts or manic episodes that led to aggression, impulse control problems, alcohol dependence, cannabis abuse or dependence, and personality dysfunction or disorder. Dr. Riebsame noted a history of cognitive disorder and antisocial personality, a prior head injury, verified physical and sexual abuse, and that Shellito's parents contributed to the abuse experienced by Shellito.
Postconviction counsel had Shellito undergo a Positron Emission Tomography (PET) scan of his brain on August 4, 2004. Dr. Joseph Wu, a psychiatrist, testified at the evidentiary hearing as to his findings after he had reviewed the PET images: abnormalities in the ratio of activity between the different regions, which falls outside of the range of normal variability and is consistent with a brain abnormality; an abnormality in the asymmetry between the left and right side of the temporal lobe areas which is significantly outside the range of normal variability; less activity in the left temporal lobe than in the right temporal lobe; an abnormality in the front and back ratio; and an abnormality in the frontal lobe (which involves the abilities to exercise proper judgment and to inhibit acting out inappropriate impulses). Dr. Wu opined that the images were not inconsistent with a bipolar diagnosis or a diagnosis of organic brain damage.
Dr. Sarkis, who was Shellito's attending psychiatrist at Grant Center Hospital in October 1991, testified at the evidentiary hearing that Shellito was referred to the Grant Center because of his behavioral problems, including arson, suicidal and homicidal threats, and running away. Dr. Sarkis' conclusion was that Shellito has organic brain syndrome, that he was three to seven years behind in his chronological age, and that his IQ was below average. Dr. Sarkis opined that Shellito qualified as having severe mental or emotional disturbance. Shellito's brain deficit causes impulsive aggression and very poor planning ability, that his ability to make decisions is significantly impaired by his impulsivity, and that his cognitive faculties have never been intact.
Dr. Craig Beaver, a psychologist, examined Shellito in May 2002. Dr. Beaver testified at the evidentiary hearing that Shellito met the criteria for organic brain
Fact witnesses also testified at the evidentiary hearing. Shellito's older sister, Rebecca, testified that Shellito hit his head against the wall when he got mad, was depressed, talked like a nine-year-old when he was actually thirteen, was called "retarded," and wet the bed until the time he went to prison. Rebecca testified about Shellito's mother's infidelities. Shellito's mother would leave her children at home without arranging for supervision or food for at least a day or two at a time. Rebecca recalled coming home from school and seeing three-year-old Shellito home alone. Rebecca also testified that one time when Shellito's mother was pulled over by a police officer, everyone had to eat marijuana, including Shellito who was eight years old at the time. Shellito's mother would hit the children with her hands, shoes, hangers, and electric cords. While drinking with her friends, Shellito's mother would announce that she would make her children dance and then proceed to hit them with a cord. Shellito's mother arranged for a man to move into her home to watch her children despite knowing that he had molested his sisters. Thereafter, this man molested Rebecca for two years. Shellito's mother told Shellito to let her see his penis. Shellito's mother would tell Shellito to act like a baby and he would put his head in her lap. She would then expose her breast and hit him with it. Shellito's mother would say to her children that she wished she never had them, and that they ruined her life. Shellito's mother would hit their father in the presence of their children. Shellito did not spend time with his father unless he was being whipped.
Allison Winnicki, Shellito's kindergarten teacher, testified that Shellito was emotionally handicapped, had mood swings, was a loner, ate glue and paper, and would be fine one minute but then something would come over him that he could not control. Shellito would sit on her lap and cry sometimes and say that he did not want to be like he was but that he could not help himself. Ms. Winnicki had a very close bond with Shellito, which was the one stability he had in his life. Ms. Winnicki heard from a neighbor that Shellito would scavenge for food, sometimes in garbage cans, and roam late at night. An investigator for Shellito's postconviction counsel testified at the evidentiary hearing that in March 2003, she spoke to Ms. Johnnie McKinsey, who, from 1982 to 1987, was Shellito's elementary school special education teacher in a class for emotionally handicapped students. Ms. McKinsey told the investigator that she saw signs of abuse or neglect, that Shellito was not able to work at the appropriate grade level, and that he came to school hungry, dirty, in need of a lot of attention, and was easily frustrated. Ms. McKinsey referred Shellito to counseling.
This postconviction evidence shows a different picture of Shellito's upbringing than what was presented at trial. See Shellito, 701 So.2d at 844 ("The defendant was raised in a stable, lower middle class home with his mother, older sister and brother.") (emphasis added). We conclude that based on consideration of the plethora of available mitigation and the dearth of mitigation actually presented, when reweighed against the aggravation in this case,
Shellito asserts claims under both Brady
To meet the requirements of Brady, a defendant must show that "(1) favorable evidence — either exculpatory or impeaching, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced." Parker v. State, 89 So.3d 844, 865 (Fla.2011). Shellito suggests that the State's decision in no longer seeking to prosecute Bays as a Habitual Violent Felony Offender ("HVFO") in his armed robbery case was in exchange for Bays' testimony during Shellito's trial. By the time Bays testified at Shellito's trial, the State withdrew its notice of intent to prosecute Bays as an HVFO. Contrary to Shellito's assertion, the record reveals that there was no agreement entered into between Ricky Bays and the State whereby Bays' testimony in Shellito's murder trial was agreed to be offered in consideration for the State's disposition of Bays' armed robbery case.
Shellito contends that the State committed a Giglio violation due to the State's filing of the withdrawal notice of its intent to prosecute Bays as an HVFO. To establish a violation of Giglio, a defendant must prove: "(1) that the testimony was false; (2) that the prosecutor knew the testimony was false; and (3) that the statement was material." Robinson v. State, 707 So.2d 688, 693 (Fla.1998). Giglio stands for the proposition that a prosecutor "has a duty to correct testimony he or she knows is false when a witness conceals bias against the defendant through that false testimony." Routly v. State, 590 So.2d 397, 400 (Fla. 1991). "[T]he thrust of Giglio and its progeny has been to ensure that the jury know the facts that might motivate a witness in giving testimony, and the prosecutor not fraudulently conceal such facts from the jury." Robinson, 707 So.2d at 693.
Bays testified during the guilt phase that it was his understanding that his maximum possible penalty was life imprisonment in his armed robbery case; that he was not promised anything for his testimony by the State Attorney's office or by the police; and that he understood that he could also receive a fifteen-year minimum mandatory sentence. Shellito contends that Bays testified falsely at trial when he said he was not receiving any benefit for his testimony. However, such statement was not false as the evidentiary hearing was devoid of evidence of an agreement for the withdrawal of HVFO, or any other benefit, in consideration for Bays' testimony. Shellito also argues that Bays testified falsely at trial when he was facing life in prison due to his status as a habitual offender. However, there was no mention of "habitual offender" status during Bays' testimony. In addition, Bays' testimony that he was facing life in prison was not untrue since even without the habitual offender status, Bays was still facing a life sentence. See McDonald v. State, 957 So.2d 605, 613 (Fla.2007) ("Pursuant to section 812.13(2)(a), Florida Statutes (2000), armed robbery is a felony punishable by life."). Shellito contends that Bays testified falsely at trial when he said he was facing a fifteen-year mandatory minimum. We agree that such testimony was false. False evidence is material "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Guzman v. State, 868 So.2d 498, 506 (Fla.2003) (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). We find that there was no reasonable likelihood that this false testimony could have affected the guilty verdict. Accordingly, a Giglio violation was not committed during Shellito's trial.
Shellito claims that Debra Dlugosz, who served as both a trial witness and trial court clerk, communicated with the jury in violation of Shellito's due process rights. During the State's rebuttal, Dlugosz testified that Shellito's mother did not tell her that someone else confessed to the murder. Dlugosz testified at the evidentiary hearing that she resumed her functions as clerk after testifying in Shellito's trial. Dlugosz stated that besides being a witness and performing her duties as a court
Shellito claims that appellate counsel on direct appeal was ineffective in failing to raise a claim that Shellito was absent during critical stages of his trial. We note that a defendant has a constitutional right to be present at all "crucial stages of his trial where his absence might frustrate the fairness of the proceedings." Garcia v. State, 492 So.2d 360, 363 (Fla. 1986). "However, the right `does not confer upon the defendant the right to be present at every conference at which a matter pertinent to the case is discussed, or even at every conference with the trial judge at which a matter relative to the case is discussed.'" Orme v. State, 896 So.2d 725, 738 (Fla.2005) (quoting United States v. Vasquez, 732 F.2d 846, 848 (11th Cir. 1984)).
Shellito points out that during the guilt phase, outside of the presence of the jury and Shellito, an investigator from the State Attorney's office informed the trial judge that witnesses had told him that they overheard two women saying they were going to get the names and addresses of all of the trial witnesses and pay them a visit. The women denied making any threats. The trial judge said that he observed them chatting and shaking their heads during the testimony and warned them that they would be excluded from the courtroom if any nodding continued. The trial judge also warned them of the penalty of contempt of court if they talked to any of the witnesses. The jury was then brought back into the courtroom with Shellito still absent. The jury was excused again for a short recess. Shellito also asserts that he was absent when his trial counsel agreed to have the judge talk privately about a juror's scheduling conflict.
We conclude that Shellito has failed to sufficiently demonstrate that he was absent from critical stages of his trial which might have frustrated the fairness of his trial. Shellito "could have provided no useful input" had he been present. Seibert v. State, 64 So.3d 67, 86 (Fla.2010). Shellito's appellate counsel cannot be deemed ineffective for failing to raise a meritless claim. See Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000) ("[T]he failure of appellate counsel to raise [a] meritless issue will not render appellate counsel's performance ineffective.").
Based on the foregoing, we affirm in part and reverse in part the circuit court's amended order denying Shellito's motion for postconviction relief. We affirm the trial court's denial of relief as to the guilt phase but vacate the sentence of death and remand for a new penalty phase proceeding. We deny his petition for a writ of habeas corpus.
It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.
