PER CURIAM.
Charles C. Peterson 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.
Peterson was convicted and sentenced to death for the murder of John Cardoso. Peterson v. State, 2 So.3d 146 (Fla.2009). On direct appeal, we set forth the relevant factual and procedural background as follows:
Id. at 148-49.
Id. at 151.
Id. at 152 (citation omitted). The trial court found and assigned weight to the following aggravation:
Id.
Id.
Id.
On direct appeal, Peterson raised six issues:
Peterson, 2 So.3d at 152-53. In addition, this Court reviewed the sufficiency of the evidence to support the conviction. Id. at 153. We affirmed Peterson's conviction of first-degree murder and his death sentence. Id.
On or about September 21, 2010, Peterson filed a postconviction motion in the circuit court, raising four claims: (1) trial counsel was ineffective for failing to strike five biased jurors either for cause or by exercising a peremptory challenge, thus violating Peterson's rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and equivalent provisions of the Florida Constitution; (2) trial counsel was ineffective for failing to object to improper comments, arguments and other conduct of the State and request curative instructions and mistrial, and for failing to investigate exculpatory evidence, thus violating Peterson's constitutional rights; (3) trial counsel was ineffective during the penalty phase for failing to object to or limit testimony and evidence, thus violating Peterson's constitutional rights; and (4) the effect of cumulative errors denied Peterson his constitutional rights. After an evidentiary hearing on the three substantive claims of the four raised, held on December 12, 13, and 14, 2011, the postconviction court denied relief.
Peterson now appeals, claiming that the postconviction court erred by denying Peterson's claim that his trial counsel was ineffective for: (1) failure to strike five biased jurors either for cause or by exercising peremptory challenges; (2) failure to object to improper comments, arguments and other conduct of the State and request curative instructions and mistrial, and for failing to investigate affirmative evidence of innocence; (3) failure to present available mitigation evidence during the penalty phase; and (4) by denying relief based on the cumulative effect of counsel's errors. Peterson also petitions this Court for a writ of habeas corpus, claiming ineffective assistance of appellate counsel.
Any claim that defense counsel provided ineffective assistance at trial must be analyzed under the standard articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Carratelli v. State, 961 So.2d 312, 321 (Fla. 2007).
First, counsel's performance must be shown to be deficient, meaning "counsel's performance fell below the standard guaranteed by the Sixth Amendment." McCoy v. State, 113 So.3d 701, 707 (Fla.2013). The defendant must point to "particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards." Bolin v. State, 41 So.3d 151, 155 (Fla.2010). "[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct." Burns v. State, 944 So.2d 234, 239 (Fla.2006). "The defendant bears the burden to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." McCoy, 113 So.3d at 707 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). However, there is a strong presumption that counsel's performance was not deficient, and great deference is given to counsel's performance. Johnston v. State, 63 So.3d 730, 737 (Fla.2011). Moreover, counsel cannot be deemed ineffective for failing to make a meritless argument. See Lukehart v. State, 70 So.3d 503, 513 (Fla.2011).
Second, "the deficient performance must have prejudiced the defendant, ultimately depriving the defendant of a fair trial with a reliable result." McCoy, 113 So.3d at 708. "[A] defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case." Strickland, 466 U.S. at 693, 104 S.Ct. 2052. Rather, he "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052; see also Bolin, 41 So.3d at 155.
Additionally, both deficient performance and prejudice must be shown. McCoy, 113 So.3d at 708. Therefore, "when a defendant fails to make a showing as to one element, it is not necessary to delve into whether he has made a showing as to the other element." Thompson v. State, 796 So.2d 511, 516 (Fla.2001). "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." McCoy, 113 So.3d at 708.
Peterson initially raises four general issues, which are comprised of eighteen subclaims. Because we find that the following claims are without merit, we affirm the postconviction court's denial of these claims without further discussion: (1) II.A (failure to object during voir dire); (2) II.B (failure to file motion in limine and object during State's case-in-chief); (3) II.C.1 (State's mischaracterization of evidence during closing arguments); (4) II.C.2 (inadequately cross-examining M.P., witness of the Hillsborough County Family Dollar collateral crimes); (5) II.C.3 (failure to impeach Detective Jerry Herren); (6) II. C.4 (failure to make an opening statement); (7) II.C.5 (failure to address State's failure to prove collateral crimes beyond a reasonable doubt); (8) II.D (failure to
We now turn to the discussion of Peterson's remaining claims.
Peterson first claims that trial counsel should have challenged jurors Aundrea Johnson, Marilyn Breen, Thomas Walbolt, Necole Tunsil, and Christine Salgado for cause on grounds of juror incompetency. "[W]here a postconviction motion alleges that trial counsel was ineffective for failing to raise or preserve a cause challenge, the defendant must demonstrate that a juror was actually biased." Carratelli, 961 So.2d at 324. The actual bias standard requires a showing that the questionable juror was not impartial, that is, "was biased against the defendant, and the evidence of bias must be plain on the face of the record." Id. (citing Patton v. Yount, 467 U.S. 1025, 1038-40, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984)). In other words, the test for juror competency is whether a juror "can lay aside any bias or prejudice and render [his or her] verdict solely upon the evidence presented and the instructions on the law given to [him or her] by the court." Id. (quoting Lusk v. State, 446 So.2d 1038, 1041 (Fla. 1984)).
For each of the challenged jurors, Peterson has failed to allege actual bias. See id. Furthermore, our review of the record does not uncover any indication that a biased juror sat on Peterson's jury. Because Peterson has not demonstrated actual bias, the postconviction court properly denied this claim. See Thompson, 796 So.2d at 516 (requiring both prongs under Strickland be established in order to prevail on ineffective assistance of counsel claim); Smithers v. State, 18 So.3d 460, 464 (Fla.2009) (requiring showing of actual bias in order to establish prejudice prong); see also McCoy, 113 So.3d at 708 ("Further, a court evaluating a claim of ineffectiveness is not required to issue a specific ruling on the performance component of the test when it is evident that the prejudice component is not satisfied.").
Peterson also claims that the postconviction court erred in denying his ineffective assistance of counsel claim based on trial counsel's failure to strike biased jurors during jury selection. Regarding Peterson's specific argument that trial counsel should have exercised peremptory challenges to strike jurors Johnson, Breen, Walbolt, Tunsil, and Salgado, "[e]ffective assistance of trial counsel includes a proficient attempt to empanel a competent and impartial jury through the proper utilization of voir dire, challenges to
The postconviction court found that trial counsel, an experienced defense attorney, made thoughtful inquiries to reach an intelligent decision in selecting the jury. This finding is supported by competent, substantial evidence. During the postconviction evidentiary hearing, Richard Watts, trial counsel for Peterson, testified that it is most important to him in death-eligible cases to focus on the sentencing recommendation. He acknowledged that he has sometimes, including in the instant case, had to select jurors that were not favorable to the defense in the guilt phase, but were favorable in the penalty phase. Furthermore, Attorney Watts testified that in his experience of selecting nearly eighty jurors in death-eligible cases, he has never achieved seating a "perfect jury"; the same was true for the instant case.
Trial counsel attempted to empanel a competent and impartial jury that would have been favorable to the defense in the penalty phase. See id. This Court has recognized such a strategy as a reasonable one. See Dillbeck v. State, 964 So.2d 95, 102-03 (Fla.2007) (finding trial counsel adopted a reasonable trial strategy of avoiding a death sentence by attempting to seat jurors likely to recommend a life sentence); see also Burns, 944 So.2d at 239. Peterson does not point to any particular venire member that would have been better qualified to serve in place of a seated juror. See Johnson v. State, 903 So.2d 888, 896 (Fla.2005) (rejecting appellant's argument that trial counsel could have used peremptory challenges in a different manner to obtain a more defense-friendly jury; "[s]uch speculation fails to rise to the level of ineffective assistance under Strickland...."). Moreover, the record shows that Peterson heavily participated in selecting the jury panel and discussed with defense counsel his desires to retain certain jurors, which further undermines Peterson's claim of ineffective assistance as to counsel's exercise of his peremptory challenges. See Gamble v. State, 877 So.2d 706, 714 (Fla.2004) ("[I]f the defendant consents to counsel's strategy, there is no merit to a claim of ineffective assistance of counsel.").
On balance, Peterson has failed to demonstrate that counsel acted beyond the broad range of reasonably competent performance under prevailing professional standards. And, as discussed above, Peterson cannot demonstrate prejudice because no biased juror sat on his jury. See Phillips v. State, 894 So.2d 28, 36 (Fla. 2004) (rejecting claim of ineffective assistance of counsel for failure to exercise two remaining peremptory challenges because defendant failed to demonstrate that his resentencing counsel's performance was deficient during voir dire and that such deficiency created a jury that was not impartial). Accordingly, we affirm the postconviction court's denial of relief with respect to this claim.
Peterson argues that trial counsel was ineffective for not filing a pretrial motion to suppress various in- and out-of-court identifications of Peterson on the ground that the identifications were made in violation of Peterson's due process rights. Peterson also claims ineffective assistance in that counsel should have elicited testimony from an eyewitness identification expert to discuss the factors that potentially affected the accuracy of the witnesses' identifications in the instant case as well as the Williams rule cases.
As also found by the postconviction court, each of the Williams rule collateral crime cases introduced into evidence supports the witnesses' identifications. These three collateral cases, which each involved a signature modus operandi, were based on a combination of DNA, shoeprint and fingerprint evidence, videotape surveillance, and Peterson's possession of the stolen goods.
Further, it is well-established that trial counsel cannot be ineffective for failing to present cumulative evidence. See Duckett v. State, 918 So.2d 224, 236 (Fla.2005); Marquard v. State, 850 So.2d 417, 429-30 (Fla.2002); Patton v. State, 784 So.2d 380, 393 (Fla.2000). This rule is consistent with the Florida Evidence Code, which allows for the exclusion of cumulative evidence. See § 90.403, Fla. Stat. (2013). "Cumulative evidence" calls for a mere "repetition of testimony." See Gracy v. Atl. Coast Line R.R. Co., 53 Fla. 350, 42 So. 903, 906 (1907).
The record shows that Attorney Watts familiarized himself with Dr. Brigham's area of expertise by reading eyewitness identification literature authored by Dr. Elizabeth Loftus and others. This, in conjunction with Attorney Watts' trial experience, training and attendance at related seminars, taught him the various areas in eyewitness identification testimony that are ripe for attack as well as the tactics to employ in attacking those areas. Further, there is competent, substantial evidence to support the postconviction court's findings that trial counsel effectively cross-examined each Big Lots witness regarding these points of attack, including their ability to see the perpetrator, their level of stress, the fact that a gun was in close proximity to their faces, and the passage of time. Moreover, the record shows that counsel reiterated this information at various points throughout closing arguments. Dr. Brigham's testimony, therefore, would have been repetitive, that is, cumulative, of the eyewitness identification evidence elicited by trial counsel. See Duckett, 918 So.2d at 236; Marquard, 850 So.2d at 429-30; Patton, 784 So.2d at 393; see also Owen v. State, 986 So.2d 534, 546 (Fla. 2008).
Accordingly, while it may have been useful to have consulted with an eyewitness identification expert, the failure is not deficient given all the circumstances of this case. Simply put, this is not the type of case in which there was a substantial likelihood of misidentification such that the failure to consult with an expert in eyewitness identification is deficient or where such testimony, if introduced, would have resulted in a reasonable probability of a different result, that is, one that undermines confidence in the outcome. Therefore, neither
As to Peterson's contention that trial counsel was ineffective for failing to file a motion to suppress the various identifications, this Court has recognized that counsel cannot be deemed ineffective for failing to file a pretrial motion to suppress identifications where the decision not to file a motion was a strategic one. Maharaj v. State, 778 So.2d 944, 959 (Fla.2000). In addition, we do not second-guess counsel's reasonable trial decisions. See Jones v. State, 845 So.2d 55, 65 (Fla.2003). According to the record, the defense team strategized not to attack the eyewitness identifications in the collateral Williams rule cases, given that physical evidence existed which connected Peterson to those identifications. Rather, the defense strategized to attack the eyewitness identifications in the instant case because there was no physical evidence associated with Peterson. For instance, the trial transcript shows that counsel elicited cross-examination testimony from Big Lots witness Karen Smith tending to show that her photo identification of the Big Lots perpetrator may have been tainted by a newsflash picture designated to be Peterson that she saw shortly after the robbery. Further, Attorney Watts testified that the focus was to attack the identifications in front of the jury so the jurors could perceive for themselves that the alleged identifications of Peterson were tainted. On review, it appears that trial counsel employed a reasonable trial strategy, given counsel's efforts to weaken the identifications in the instant case for which Peterson was actually charged. Therefore, because Peterson has failed to demonstrate ineffective assistance, we affirm the postconviction court's denial of this claim. See Maharaj, 778 So.2d at 959.
In his petition for a writ of habeas corpus, Peterson alleges that appellate counsel was ineffective for erroneously conceding guilt of the three Williams rule cases, which prejudicially led to the denial of relief in this case. Consistent with the Strickland standard, to grant habeas relief for ineffective assistance of appellate counsel, this Court follows a two-prong test:
Schoenwetter, 46 So.3d at 563. The defendant bears the burden of "alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based." Id. (quoting Freeman v. State, 761 So.2d 1055, 1069 (Fla. 2000)).
Our opinion in Peterson reflects that appellate counsel informed this Court that Peterson was "either convicted or pled guilty to each collateral robbery," including the Family Dollar, McCrory's, and Phar-Mor cases. See Peterson, 2 So.3d at
Based on the foregoing analysis, we affirm the postconviction court's denial of relief. We also deny Peterson's petition for a writ of habeas corpus.
It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.
PARIENTE, J., concurs with an opinion in which QUINCE, J., concurs.
CANADY, J., concurs in result.
PARIENTE, J., concurring.
I concur in the majority opinion affirming the postconviction court's denial of relief and denying Peterson's habeas corpus petition, and agree that counsel's failure to utilize an eyewitness identification expert in this case did not constitute ineffective assistance of counsel. However, because I am concerned that our prior jurisprudence has left the impression that testimony of an eyewitness identification expert is generally inadmissible, I write separately to explain why such testimony should be generally admissible to assist the jury in determining the reliability of eyewitness identifications, especially in cases resting substantially or entirely on eyewitness testimony.
Specifically, I would adopt the rationale of the Supreme Court of Connecticut in State v. Guilbert, 306 Conn. 218, 49 A.3d 705, 720 (2012), and conclude that this Court's precedent, which suggests that factors affecting eyewitness testimony are within the common experience of jurors, is "out of step with the widespread judicial recognition that eyewitness identifications are potentially unreliable in a variety of ways unknown to the average juror." Indeed, as noted in Guilbert, the widely accepted scientific research available today "convincingly demonstrates the fallibility of eyewitness identification testimony and pinpoints an array of variables that are most likely to lead to a mistaken identification." Id. at 721. Accordingly, in cases involving eyewitness testimony, I encourage trial courts to truly exercise their discretion in determining whether to admit expert testimony on eyewitness identifications, which oftentimes has the potential to aid the jury in evaluating this extremely weighty evidence.
Among multiple claims and subclaims of guilt-phase ineffectiveness, Peterson claimed that his lawyer was ineffective in dealing with the eyewitness identification evidence presented to the jury. Although I agree with the majority that the defense attorney's failure to consult with an eyewitness identification expert did not constitute ineffective assistance of counsel in this
As the Supreme Court of New Jersey recognized in State v. Delgado, 188 N.J. 48, 902 A.2d 888, 895 (2006), "[m]isidentification is widely recognized as the single greatest cause of wrongful convictions in this country." For that reason, the Innocence Commission appointed by the Florida Supreme Court to analyze the causes of wrongful convictions chose eyewitness misidentification as its first area of study. Florida Innocence Commission, Final Report to the Supreme Court of Florida 18 (2012). Indeed, citing analysis undertaken by the Innocence Project, the Florida Innocence Commission noted that eyewitness misidentification has played a role in more than seventy-five percent of convictions that were subsequently overturned through DNA testing. Id.
Thirty-one years ago, prior to the scientific studies available today pointing out the flaws in eyewitness testimony, I can understand how this Court might have concluded that "a jury is fully capable of assessing a witness' ability to perceive and remember ... without the aid of expert testimony." Johnson, 438 So.2d at 777. However, even in reaching this conclusion, rather than electing a per se rule of exclusion, this Court adopted an abuse of discretion standard. Id.
Unfortunately, though, this Court offered no real guidance as to how a trial court should determine the admissibility of an eyewitness identification expert and even indicated that there was no reason to admit such testimony, stating as follows:
Id. (citations omitted). As I have previously explained, "[i]n so holding, we signaled to trial judges that expert testimony in this area is unnecessary because the assessment of eyewitness identification is within the common experience of jurors." Simmons v. State, 934 So.2d 1100, 1123-24 (Fla.2006) (Pariente, C.J., specially concurring). However, subsequent research in the area of eyewitness identification has clearly demonstrated that the reliability of eyewitness identification testimony is subject to a multitude of factors, the effects of which are often not within the realm of an average juror's general knowledge.
The powerful impact that eyewitness identification evidence has on jurors cannot
Simmons, 934 So.2d at 1124 (Pariente, C.J., specially concurring).
Since our decision in Simmons, courts throughout the country have continued to take notice of the growing body of scientific research on eyewitness identifications and have repeatedly recognized that expert testimony on eyewitness identification provides jurors with information that is beyond an average juror's general knowledge. For example, only three years after this Court's decision in Simmons, the Supreme Court of Utah, in concluding that a trial court had abused its discretion by excluding expert witness testimony, held that "the testimony of a qualified expert regarding factors that have been shown to contribute to inaccurate eyewitness identifications should be admitted whenever it meets the requirements of [the Utah rules of evidence]." State v. Clopten, 223 P.3d 1103, 1112 (Utah 2009). Further, the Supreme Court of Utah went on to explain that it expected its decision in Clopten to "result in the liberal and routine admission of eyewitness expert testimony." Id.
The Supreme Court of Connecticut reached a similar conclusion in Guilbert, noting that while the court had previously concluded that expert testimony on eyewitness identification was inadmissible because "the reliability of eyewitness identification is within the knowledge of jurors," State v. Kemp, 199 Conn. 473, 507 A.2d 1387, 1389 (1986), its prior decisions on the issue were "out of step with the widespread judicial recognition that eyewitness identifications are potentially unreliable in a variety of ways unknown to the average juror." Guilbert, 49 A.3d at 720. Relying on "extensive and comprehensive research, as reflected in hundreds of peer reviewed studies and metaanalyses," the Supreme Court of Connecticut explained that scientific evidence "convincingly demonstrates the fallibility of eyewitness identification testimony and pinpoints an array of variables that are most likely to lead to a mistaken identification." Id. at 721. Thus, the Supreme Court of Connecticut concluded that "[m]any of the factors affecting the reliability of eyewitness identifications are either unknown to the average juror or
Citing the Supreme Court of Connecticut's decision in Guilbert, the Supreme Court of Oregon stated that "courts around the country have recognized that traditional methods of informing factfinders of the pitfalls of eyewitness identification — cross-examination, closing argument, and generalized jury instructions — frequently are not adequate to inform factfinders of the factors affecting the reliability of such identifications." State v. Lawson, 352 Or. 724, 291 P.3d 673, 695 (2012) (citing Guilbert, 49 A.3d at 705). In light of this conclusion, the Supreme Court of Oregon explained that "the use of experts may prove vital to ensuring that the law keeps pace with advances in scientific knowledge, thus enabling judges and jurors to evaluate eyewitness identification testimony according to relevant and meaningful criteria." Id. at 696.
These decisions represent the modern trend among courts that have addressed the admissibility of expert testimony on eyewitness identification. As noted by the Supreme Court of Connecticut, there is now a "widespread judicial recognition that eyewitness identifications are potentially unreliable in a variety of ways unknown to the average juror." Guilbert, 49 A.3d at 720. By bringing to light research findings on factors that affect an eyewitness identification, which would otherwise be beyond a juror's general knowledge, expert testimony within this area can assist the trier of fact in correctly determining a defendant's guilt.
Given the widespread judicial acceptance of the fact that the reliability of eyewitness testimony is subject to factors beyond the common knowledge of jurors, I once again encourage trial courts to "truly exercise their discretion as to the admission of this testimony." Simmons, 934 So.2d at 1126 (Pariente, C.J., specially concurring). As the burgeoning body of scientific research indicates and courts across the country increasingly recognize, expert witness testimony on the reliability of eyewitness identifications can be a "powerful tool in helping the criminal justice system achieve its goal of convicting the guilty while acquitting the innocent." Id. It is my hope that when this Court is squarely faced with the issue in a direct appeal case, we will seize the opportunity to recede from Johnson, join the modern trend, and hold that eyewitness identification expert testimony should be generally admissible, especially in cases resting substantially or entirely on eyewitness testimony, as long as the other predicates for admissibility are met.
QUINCE, J., concurs.
