VIRGINIA M. HERNANDEZ COVINGTON, District Judge.
Steven Turbi, a Florida inmate, timely filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 (Doc. 1) and supporting memorandum (Doc. 2) challenging his Polk County convictions. Respondent filed a response (Doc. 8) and Turbi filed a reply (Doc. 12). Upon review, the petition is DENIED.
Turbi was convicted after a jury trial of burglary while armed and with an assault and battery; robbery with a deadly weapon; possession of cannabis; and possession of drug paraphernalia. (Doc. 11, Ex. 3). The state trial court sentenced him to 20 years in prison. (Doc. 11, Ex 4). The state appellate court affirmed the convictions and sentences in a written opinion. Turbi v. State, 171 So.3d 787 (Fla. 2d DCA 2015). Turbi filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. (Doc. 11, Ex. 11). The state postconviction court summarily denied the motion, and the state appellate court per curiam affirmed the denial of relief. (Doc. 11, Exs. 12, 14).
Turbi's second postconviction motion, filed while his initial collateral appeal was pending, was dismissed by the state postconviction court. (Doc. 11, Exs. 16, 17). The state appellate court per curiam affirmed the dismissal. (Doc. 11, Ex. 19). Turbi's third postconviction motion was denied as successive. (Doc. 11, Exs. 21, 22). The state appellate court per curiam affirmed the denial. (Doc. 11, Ex. 23).
Atiya Sampson-Davis managed a restaurant inside the Stonegate Golf Club. On the night of December 7, 2012, she was counting money in her office after closing. She heard a knock at the office's exterior door. Expecting the banquet manager to bring her cash, Sampson-Davis replied for the person at the door to come in. When no one entered, she opened the door to find two masked men with firearms. They came into the office, where one man held a gun to her head while the other took money from her desk and a safe. After they left, she called 911.
Sampson-Davis told police that she recognized a tattoo on the arm of the man who took the money. She said a former employee, Steven Turbi, had the same tattoo. During his employment, she had asked Turbi about the tattoo and, as his supervisor, had admonished him to cover it in accordance with the restaurant's policies. She further told police that both perpetrators were dressed in black clothing.
Police established a perimeter around the area. Deputy Kevin Schuttler saw Turbi walking approximately one to two miles away from the restaurant. He was wearing black clothing, appeared sweaty, and had vegetation stuck to his pants legs. After obtaining Turbi's name and observing the tattoo on his arm, Deputy Schuttler detained Turbi and found a bag containing marijuana on his person. After Turbi's apprehension, police continued to search for his accomplice. A police dog tracked about half a mile from the restaurant before losing the scent. Turbi's accomplice was never arrested.
The Antiterrorism and Effective Death Penalty Act ("AEDPA") governs this proceeding. Carroll v. Sec'y, DOC, 574 F.3d 1354, 1364 (11th Cir. 2009). Habeas relief can only be granted if a petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Section 2254(d) provides that federal habeas relief cannot be granted on a claim adjudicated on the merits in state court unless the state court's adjudication:
A decision is "contrary to" clearlyestablished federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A decision is an "unreasonable application" of clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
The AEDPA was meant "to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). Accordingly, "[t]he focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, and . . . an unreasonable application is different from an incorrect one." Id. at 694. See also Harrington v. Richter, 562 U.S. 86, 103 (2011) ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").
The state appellate court affirmed the denial of postconviction relief without discussion. This decision warrants deference under § 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir. 2002). See also Richter, 562 U.S. at 99 ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary."). When a state appellate court issues a silent affirmance, "the federal court should `look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale" and "presume that the unexplained decision adopted the same reasoning." Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
Turbi contends that his conviction and sentence for burglary are illegal because the charging document referenced "the previous statutory language of Section 810.02", Fla. Stat. (Doc. 1, p. 5). The charging document alleges that:
(Doc. 11, Ex. 1, p. 12) (emphasis added).
Turbi claimed in his postconviction motion that "[t]he above statutory language or remain in does not apply to Turbi because the language is only applicable to crimes of burglary committed on or before July 1, 2001." (Doc. 11, Ex. 11, p. 19) (emphasis in original).
Preliminarily, Turbi's claim is not cognizable because he does not clearly allege a federal constitutional violation. See Branan v. Booth, 861 F.2d 1507, 1508 (11th Cir.1988) (affirming the dismissal of a state law claim as not cognizable in a federal habeas action and stating that "a habeas petition grounded on issues of state law provides no basis for habeas relief."). Even if Turbi's claim is interpreted as raising a federal constitutional challenge to the validity of his conviction, and assuming the federal claim was exhausted in state court, Turbi's claim remains uncognizable. To raise a cognizable federal habeas claim alleging an error in a state court charging document, the charging document must be so defective that it deprives the court of jurisdiction. See DeBenedictis v. Wainwright, 674 F.2d 841, 842 (11th Cir. 1982) ("The sufficiency of a state indictment or information is not properly the subject of federal habeas corpus relief unless the indictment or information is so deficient that the convicting court is deprived of jurisdiction.").
Turbi has not made this showing. Florida law provides that state circuit courts have jurisdiction over felony cases. § 26.012(2)(d), Fla. Stat. The information identified Turbi and the victim, described the date and location of the offense, and cited the burglary statute, thereby placing Turbi on notice of the burglary charge. (Doc. 11, Ex. 1, p. 12). Turbi does not allege that the information omitted an element of burglary. See, e.g., Figueroa v. State, 84 So.3d 1158, 1161 (Fla. 2d DCA 2012) ("[A]n information is fundamentally defective where it fails to cite a specific section and totally omits an essential element of the crime.").
The information also contains the required oath of the Assistant State Attorney certifying that the allegations in the information "are based upon facts that have been sworn to as true, and which, if true, would constitute the offense therein charged," and that "testimony under oath has been received from the material witness or witnesses for the offense." (Doc. 11, Ex. 1, p. 14). See Fla. R. Crim. P. 3.140(g) (setting forth requirements of the oath). Turbi has not established that the testimony presented to the prosecutor was insufficient to support the charging document. Therefore, he does not show any defect in the charging document that deprived the state court of jurisdiction so as to raise a cognizable claim on federal habeas review. Turbi is not entitled to relief on Ground Two.
The rest of Turbi's claims allege ineffective assistance of counsel. These claims are analyzed under the standard announced in Strickland v. Washington, 466 U.S. 668 (1984). Turbi must demonstrate that his counsel performed deficiently in that "counsel's representation fell below an objective standard of reasonableness." Id. at 687-88. Turbi must also show that he suffered prejudice by demonstrating "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. Obtaining relief on a claim of ineffective assistance of counsel is difficult because "[t]he standards created by Strickland and § 2254(d) are both `highly deferential,' and when the two apply in tandem, review is `doubly' so." Richter, 562 U.S. at 105 (citations omitted). See also Burt v. Titlow, 571 U.S. 12, 15 (2013) (this doubly deferential standard of review "gives both the state court and the defense attorney the benefit of the doubt.").
Turbi argues that trial counsel was ineffective in presenting the motion for judgment of acquittal.
(Doc. 11, Ex. 12, pp. 40-41) (court's record citations omitted).
In moving for a judgment of acquittal, counsel challenged the sufficiency of the evidence, arguing that the State had not established Turbi's identity and had not presented a prima facie case of guilt. (Doc. 11, Ex. 2, Vol. I, pp. 111-20). And counsel argued in the motion for new trial that the verdict was contrary to the weight of the evidence. (Doc. 11, Ex. 12, p. 48). Accordingly, counsel did challenge the State's evidence, as the state court found. Turbi has not shown that counsel was ineffective in failing to more expressly allege that the State failed to overcome Turbi's reasonable hypotheses of innocence, or that the jury would be required to impermissibly stack inferences in order to convict him.
State v. Law, 559 So.2d 187, 188-89 (Fla. 1989).
Turbi alleged that he was not one of the perpetrators. He was arrested a short distance from his home, and claimed that he was merely walking outside to smoke a cigarette when he encountered Deputy Schuttler. However, the State presented evidence of Turbi's identity from which the jury could exclude his hypothesis of innocence. Sampson-Davis stated that the man who took money from her office had a tattoo consistent with Turbi's tattoo. (Doc. 11, Ex. 2, Vol. I, p. 44). She also testified that Turbi knew of the safe in the office. (Id., p. 47). She explained that to get his tips, he had come to the office and see a supervisor, who retrieved the money from the safe. (Id., pp. 47-48). Further, Turbi had worked the closing shift while employed at the restaurant. (Id., p. 48).
Additionally, the State's evidence showed that police located Turbi less than two miles from the crime scene in clothing consistent with Sampson-Davis's description of the perpetrators' clothing. (Id., pp. 39-40, 87, 97-99). It appeared he might have been running, as he was sweaty and had plant matter stuck to his pants. (Id., pp. 88, 99). In light of this evidence, Turbi has not shown that counsel was ineffective in not more specifically arguing that the State's evidence did not exclude his hypothesis of innocence, or that he was prejudiced by counsel's failure.
Nor does Turbi demonstrate that counsel was ineffective in failing to argue that the jury could only find him guilty by impermissibly stacking inferences. "An impermissible pyramiding of inferences occurs where at least two inferences in regard to the existence of a criminal act must be drawn from the evidence and then stacked to prove the crime charged; in that scenario, it is said that the evidence lacks the conclusive nature to support a conviction." Graham v. State, 748 So.2d 1071, 1072 (Fla. 4th DCA 1999).
Turbi does not explain how the State's evidence would have required the jury to impermissibly stack inferences. He merely claims, in a conclusory manner, that "the evidence was wholly circumstantial and the only way any reasonable juror could have determined Turbi played a part in the crimes was by improperly pyramiding the evidence." (Doc. 1, p. 5). But the State may prove its case through the presentation of circumstantial evidence. See State v. Castillo, 877 So.2d 690, 693 (Fla. 2004) ("[I]t has long been established that circumstantial evidence is competent to establish the elements of a crime."). Turbi's claim is too conclusory and speculative to warrant relief. See Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (a federal court may not grant habeas relief "on the basis of little more than speculation with slight support."); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (vague, conclusory, or unsupported allegations cannot support an ineffective assistance of counsel claim).
Turbi has not shown that the state court's denial of his claim involved an unreasonable application of Strickland or was based on an unreasonable determination of the facts. He is not entitled to relief on Ground One.
Consistent with the standard instruction for burglary, the jury was instructed that they could "infer that the defendant had the intent to commit a crime inside the structure if the entry or attempted entry of the structure was done stealthfully and without the consent of the owner or occupant." (Doc. 11, Ex. 2, Vol. II, pp. 199-200). See Fla. Std. Jury Inst. (Crim.) 13.1. Turbi argues that trial counsel was ineffective in failing to object to the stealthy entry instruction because it involved "an uncharged theory of prosecution." (Doc. 1, p. 6). The state court denied Turbi's claim:
(Doc. 11, Ex. 12, p. 42).
Turbi has not established prejudice as a result of counsel's failure to object to the stealthy entry instruction. As the state court's order indicates, a jury will likely discount an inapplicable instruction. See Reed v. State, 208 So.3d 1231, 1235 (Fla. 1st DCA 2017) ("A jury is likely to disregard an option simply unsupported by the evidence. We see no reason to conclude that the jury in this case did not disregard the stealthy-entry inference based on the manifest lack of evidence to support it, the lack of argument in favor of it, the persuasive argument against it, and the evidence of his intent to commit a crime without it.") (internal quotation marks and citation omitted). Turbi fails to show a reasonable probability that the outcome of trial would have been different had counsel objected to the jury's receiving the stealthy entry instruction. Because he does not show that the state court's denial of his claim involved an unreasonable application of Strickland or was based on an unreasonable determination of fact, Turbi is not entitled to relief on Ground Three.
Turbi claims that trial counsel was ineffective in failing to move to sever counts one and two (burglary and robbery) from counts three and four (possession of cannabis and possession of drug paraphernalia). He asserts that the drug charges "had absolutely no bearing on whether or not he committed the burglary or robbery." (Doc. 1, p. 6).
The state court denied Turbi's claim:
(Doc. 11, Ex. 12, pp. 42-43).
It appears that in his postconviction motion, Turbi referred to Florida Rule of Criminal Procedure 3.152(a)(2)(A), which provides that a defendant may obtain severance of charges of related offenses upon showing "that the severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense." "In determining whether severance is warranted, a court must consider several factors, including the temporal and geographic association of the crimes, the nature of the crimes, and the manner in which the crimes were committed." Bell v. State, 33 So.3d 724, 725 (Fla. 1st DCA 2010).
Whether severance would have been appropriate involves an application of Florida law. This Court must defer to the state court's finding that severance was not appropriate. Although Turbi's ineffective assistance of counsel claim is a federal constitutional claim, when "the validity of the claim that [counsel] failed to assert is clearly a question of state law, . . . we must defer to the state's construction of its own law." Will v. Sec'y, Dep't of Corr., 278 Fed. App'x 902, 908 (11th Cir. 2008) (quoting Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir. 1984)). See also Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1354-55 (11th Cir. 2005) ("The Florida Supreme Court already has told us how the issues would have been resolved under Florida state law had [petitioner's counsel] done what [petitioner] argues he should have done . . . 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.'" (quoting Agan v. Vaughn, 119 F.3d 1538, 1549 (11th Cir. 1997))).
Further, in light of the State's evidence, Turbi does not show a reasonable probability of a different outcome with respect to any of the charges, even if they had been severed as he proposes. Turbi has not shown that the state court's ruling involved an unreasonable application of Strickland or was based on an unreasonable determination of fact. He is not entitled to relief on Ground Four.
Turbi alleges that trial counsel was ineffective in failing to object when, during deliberations, the jury requested and was provided a map that had been used as a demonstrative aid but had not been introduced into evidence. It appears that the State utilized the map to show the police perimeter, the path of the police dog's track, and the location where Deputy Schuttler located Turbi. (Doc. 11, Ex. 2, Vol. II, pp. 66-67, 96-98).
The state court denied Turbi's claim:
(Doc. 11, Ex. 12, p. 43).
As the state court noted, the trial transcript reflects that Turbi and his counsel agreed that the jury could have the map:
(Doc. 11, Ex. 2, Vol. II, pp. 222-24).
Turbi fails to establish a reasonable probability that the outcome of trial would have been different had counsel objected to the jury's viewing the map. Turbi makes a conclusory and speculative argument that "[o]bviously, the purported layout in the map was incriminating where after the jury received it, they determined Turbi was guilty as charged." (Doc. 1, p 6). This kind of speculation does not warrant federal habeas relief. See Bartholomew, 516 U.S. at 8; Tejada, 941 F.2d at 1559. Turbi does not show that the state court unreasonably applied Strickland or unreasonably determined the facts in denying his claim. Consequently, he is not entitled to relief on Ground Five.
Turbi contends that trial counsel was ineffective in failing to investigate and present evidence about Sampson-Davis's alleged motive to testify. He explains:
(Doc. 1, pp. 6-7).
The state court denied Turbi's claim:
(Doc. 11, Ex. 12, pp. 43-44).
The state court reasonably denied Turbi's ineffective assistance claim, which is too speculative to provide relief. First, Turbi presents no evidence in support of his theory that Sampson-Davis had a "vendetta" against him. Second, he has not offered any evidence showing that Rosalynn Lugo would have testified as he claims. 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)); United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) ("[E]vidence about the testimony of a putative witness must generally be presented in the form of actual testimony by the witness or on 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).
Furthermore, considering the State's evidence of his identity, Turbi fails to establish a reasonable probability that the outcome would have been different had his attorney investigated and presented evidence concerning the victim's alleged motive to testify. Turbi fails to show that the state court's rejection of his claim involved an unreasonable application of Strickland or was based on an unreasonable factual determination. Turbi is not entitled to relief on Ground Six.
Turbi claims that counsel was ineffective in failing to convey to him the State's plea offer for eight years in prison followed by five years on probation. The State court denied this claim:
(Doc. 11, Ex. 12, p. 44).
The state court did not unreasonably deny relief. As the court noted, the plea form attached to Turbi's postconviction motion was dated after his trial had concluded, and Turbi fails to show that the State prepared it pursuant to an offer that was in fact presented to defense counsel. (Doc. 11, Ex. 11, p. 35). Further, defense counsel did not object when the prosecutor stated on the record that no plea offers had been made in Turbi's case. (Doc. 11, Ex. 12, p. 102). Accordingly, Turbi's unsupported claim that counsel failed to communicate a plea offer is too speculative to warrant relief. See Bartholomew, 516 U.S. at 8; Tejada, 941 F.2d at 1559. Turbi has not shown that the state court's denial of his claim involved an unreasonable application of Strickland or was based on an unreasonable determination of fact. He is not entitled to relief on Ground Seven.
In Grounds Eight through Eleven, Turbi alleges ineffective assistance of trial counsel. Turbi presented these claims in a successive postconviction motion, which the state court dismissed as "an unauthorized successive motion." (Doc. 11, Ex. 22).
If a state court's rejection of a federal constitutional claim is based on an "independent and adequate" state procedural ground, federal review of the claim is barred. Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001). See also Caniff v. Moore, 269 F.3d 1245, 1247 (11th Cir.2001) ("[C]laims that have been held to be procedurally defaulted under state law cannot be addressed by federal courts."). A state court's procedural ruling constitutes an independent and adequate state rule of decision if (1) the last state court rendering a judgment in the case clearly and expressly states that it is relying on a state procedural rule to resolve the federal claim without reaching the merits of the claim, (2) the state court's decision rests solidly on state law grounds and is not intertwined with an interpretation of federal law, and (3) the state procedural rule is not applied in an "arbitrary or unprecedented fashion" or in a "manifestly unfair manner." Judd, 250 F.3d at 1313 (citing Card v. Dugger, 911 F.2d 1494 (11th Cir. 1990)).
Further, to be considered adequate, a rule must be firmly established and regularly followed. Lee v. Kemna, 534 U.S. 362, 376 (2002). In Florida, a second or successive postconviction motion is an "extraordinary pleading." Fla. R. Crim. P. 3.850(h)(2).
Id.
Florida decisions also address the dismissal of successive postconviction motions. See Owen v. State, 854 So.2d 182, 187 (Fla. 2003) ("A second or successive motion for postconviction relief can be denied on the ground that it is an abuse of process if there is no reason for failing to raise the issues in the previous motion. . . . [C]laims that could have been raised in a prior postconviction motion are procedurally barred."); Christopher v. State, 489 So.2d 22, 24 (Fla. 1986) (recognizing that Rule 3.850 allows a court to summarily deny a successive postconviction relief that raises new grounds).
The state court's reliance on an independent and adequate state bar to dispose of Turbi's claims results in a procedural default. Therefore, the claims can only be considered if Turbi establishes that either the cause and prejudice or fundamental miscarriage of justice exception applies to overcome the default. See Harris v. Reed, 489 U.S. 255, 262 (1989) ("[A]n adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show" one of these exceptions).
Citing Martinez v. Ryan, 566 U.S. 1 (2012), Turbi asserts that he establishes the cause and prejudice exception to overcome the default. Martinez provides:
Id. at 17. To establish cause pursuant to this rule, "a petitioner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit." Id. at 14. See also Duffy v. Sec'y, Dep't of Corr., 729 Fed. App'x 669, 670 (11th Cir. 2018) ("A defaulted claim is substantial if the resolution of its merits would be debatable among jurists of reason." (citing Miller-El v. Cockrell, 537 U.S. 322, 336 (2003))).
Turbi has not shown that the defaulted claims of ineffective assistance of trial counsel raised in Grounds Eight, Nine, Ten, and Eleven are substantial under Martinez. Accordingly, he has not overcome the procedural default of these claims.
Turbi claims that trial counsel was ineffective for not arguing in the motion for judgment of acquittal that the State failed to prove burglary in the manner charged in the information. He claims that "since the State failed to establish the `remaining in' element and instead presented evidence indicating an unlawful entry, it appeared that Turbi would have been granted an acquittal had his trial counsel argued that the State failed to prove a burglary in the manner charged in the information." (Doc. 2, p. 3).
Turbi does not establish a substantial claim of ineffective assistance of trial counsel. The information charged him with either entering or remaining in the structure. (Doc. 11, Ex. 1, p. 12). As he concedes, the State presented evidence that he unlawfully entered the structure. Accordingly, Turbi fails to show a reasonable probability that the outcome would have been different had counsel objected on the basis alleged. Turbi has not overcome the procedural default of Ground Eight.
Sampson-Davis testified at trial that both perpetrators carried handguns. (Doc. 11, Ex. 2, Vol. I, p. 38). She did not recall telling police that only one of the perpetrators had a gun but agreed that she might have done so:
(Id., pp. 57-58).
Detective Matthew Radabaugh testified that Sampson-Davis stated that one of the individuals had a gun, and that the other did not. (Id., p. 89). Turbi contends that trial counsel should have argued in the motion for judgment of acquittal that "Ms. Davis's prior inconsistent statement standing alone is insufficient to prove guilt beyond a reasonable doubt." (Doc. 1, p. 8).
Turbi's argument is unclear. The State did not rely on Sampson-Davis's prior inconsistent statement to police about whether both robbers carried firearms. The portions of Sampson-Davis's and Detective Radabaugh's testimonies addressed above were elicited by counsel on cross-examination. Furthermore, counsel addressed Sampson-Davis's prior inconsistent statements in moving for a judgment of acquittal. (Doc. 11, Ex. 2, Vol. I, pp. 117-18). Turbi has not established that trial counsel performed deficiently, or that he was prejudiced by counsel's performance. Accordingly, Turbi has not presented a substantial claim of ineffective assistance of trial counsel that establishes cause to excuse his procedural default of Ground Nine.
Turbi claims that counsel should have objected that counts one and two violated double jeopardy. He claims that "the robbery was the only offense, committed while the armed burglary was in progress. The robbery subsumed into a greater offense of armed burglary with an assault or battery." (Doc. 2, p. 4).
The test for whether convictions for multiple offenses violate double jeopardy is "whether each provision requires proof of a fact with the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932). Burglary requires the entering of a structure with the intent to commit an offense therein. § 810.02, Fla. Stat. These elements are not contained in the robbery statute. § 812.13, Fla. Stat. However, robbery requires proof of a taking, which is not an element of burglary. See id. Therefore, the offenses are not different degrees of the same crime, and one is not subsumed by the other. See McAllister v. State, 718 So.2d 917, 918 (Fla. 5th DCA 1998). Because Turbi does not show that his convictions for burglary and robbery violate double jeopardy, he cannot establish a substantial claim of ineffective assistance of trial counsel for failing to raise a double jeopardy objection. Turbi has not overcome the default of Ground Ten.
A person is liable as a principal if he "aids, abets, counsels, hires, or otherwise procures [any criminal offense] to be committed." § 777.011, Fla. Stat. In accordance with Florida's standard instructions, the jury was instructed:
(Doc. 11, Ex. 2, Vol. II, p. 210).
Turbi argues that trial counsel was ineffective in failing to object to this instruction because the State did not cite the principals statute in the charging information. Turbi has not shown that this was a meritorious basis for objection. "Under Florida law, a person who is charged in an indictment or information with commission of a crime may be convicted on proof that she aided or abetted in the commission of such crime." State v. Larzelere, 979 So.2d 195, 215 (Fla. 2008). Accordingly, "if an information charges a defendant with a substantive crime, . . . and the proof establishes only that he was feloniously present, aiding, and abetting in the commission of the crime, a verdict of guilt as charged should be sustained." Watkins v. State, 826 So.2d 471, 474 (Fla. 1st DCA 2002). See also State v. Roby, 246 So.2d 566, 571 (Fla.1971) ("Under our statute, . . . a person is a principal in the first degree whether he actually commits the crime or merely aids, abets, or procures its commission, and it is immaterial whether the indictment or information alleges that the defendant committed the crime or was merely aiding or abetting in its commission, so long as the proof establishes that he was guilty of one of the acts denounced by the statute.").
The principals instruction may be given if supported by the evidence adduced at trial. See Roberts v. State, 813 So.2d 1016, 1017 (Fla. 1st DCA 2002) ("There was sufficient evidence adduced in the state's case-in-chief to support [the principals] instruction; accordingly, the trial court did not err in granting the request for such an instruction, despite the fact that Roberts was not specifically charged with aiding and abetting.").
The State argued that the principals theory was relevant to show that Turbi was guilty of battery and assault during the burglary. (Doc. 11, Ex. 2, Vol. I, pp. 174-75). Turbi's accomplice held Sampson-Davis at gunpoint, putting a hand on her shoulder to keep her from moving and placing a gun to the back of her head. (Id., pp. 39-43). The State also argued that, even if the jury did not believe Turbi carried a weapon, he was still guilty as a principal of burglary while armed and robbery with a deadly weapon because his accomplice carried a weapon. (Doc. 11, Ex. 2, Vol. II, p. 194).
Turbi fails to argue that the evidence did not support giving the principals instruction. Furthermore, the State's evidence was sufficient to show that Turbi intended that burglary and robbery be committed, and that his actions encouraged his accomplice enter the office with a firearm and restrain the victim at gunpoint while he completed the robbery. Accordingly, Turbi does not show that his trial counsel was ineffective in failing to object to the principals instruction, or a reasonable probability that the outcome would have been different had counsel done so. As Turbi's ineffective assistance of trial counsel claim is not substantial, he does not overcome the default of Ground Eleven.
Accordingly, it is
It is
