PER CURIAM.
This case is before us on the State's appeal from an order granting a new penalty phase based on the defendant's motion to vacate a sentence of death under Florida Rule of Criminal Procedure 3.851 and the defendant's cross-appeal from the trial court's order denying a new trial as to both the guilt and penalty phases. We have jurisdiction.
Thomas D. Woodel was convicted in Polk County, Florida, for the first-degree murders of Clifford and Bernice Moody, an elderly married couple, who he cut and stabbed. Woodel, who was twenty-six years old on the date of the crimes, was also convicted of burglary and robbery in the same case. The pertinent facts pertaining to Woodel's convictions are addressed in our decision issued in his first direct appeal:
The jury voted twelve to zero for Mrs. Moody, and nine to three for Mr. Moody in recommending that Woodel be sentenced to death.
However, when the case returned to the circuit court in 2001, the original trial judge was unavailable to reconsider the sentence. Therefore, Woodel was granted a new penalty phase with a successor judge presiding.
In April 2010, Woodel filed a motion in the Circuit Court of the Tenth Judicial Circuit in and for Polk County, pursuant to rule 3.851, in which he sought postconviction relief. A second successor judge presided over the postconviction proceedings due to the unavailability of the circuit judge that presided over Woodel's second penalty phase in 2004.
The postconviction court ruled that an evidentiary hearing was necessary to address Woodel's allegations of ineffective assistance of counsel. The evidentiary hearing was held in 2011 over nine nonconsecutive days. Woodel presented twenty-seven witnesses, including his former trial attorneys, expert witnesses, and other witnesses. No witnesses appeared for the State.
Woodel presented seven general claims for postconviction relief. In four of his claims, Woodel alleged that he was deprived of his constitutional right to reliable adversarial testing due to ineffective assistance of counsel.
On appeal, the State raises three general issues in which it asserts that Woodel failed to establish that: (1) he was prejudiced regarding his assertion that penalty phase counsel failed to investigate, prepare, and present a mitigation case in a proper manner; (2) penalty phase counsel allegedly failed to ensure that Woodel received a reasonably competent mental health evaluation; and (3) he was prejudiced regarding his assertion that penalty phase counsel should have moved to have certain testimony excluded that Woodel sexually fondled Mrs. Moody. We reverse the postconviction court's order granting a new penalty phase, because Woodel failed to satisfy both prongs set forth in
U.S. 668 (1984), to obtain postconviction relief due to allegations of ineffective assistance of counsel where the death penalty has been imposed.
On cross-appeal, Woodel raises two general issues in which he asserts that: (1) guilt phase counsel provided ineffective assistance for failing to object to the admission of certain testimony that Woodel sexually fondled Mrs. Moody; and (2) the State violated the rules set forth in
This Court has repeatedly upheld the
In applying the
There is a strong presumption that trial counsel does not provide ineffective assistance.
The postconviction court's 2011 order stated the following regarding Woodel's Claim IIA—Counsel's failure to conduct a reasonably competent mitigation investigation and failure to present mitigation:
In 2011, the postconviction court expressed concern about how counsel used the experience of the 1998 penalty phase in preparation for the 2004 penalty phase.
Although the sentencing order resulting from the penalty phase in 1998 was vacated by our decision in
During the 2011 evidentiary hearing, the postconviction court heard testimony from multiple experts and other witnesses concerning the relevant aspects of Woodel's background. The experts offered their opinions about Woodel's mental and emotional condition at the time of the crimes. Within its final order, the postconviction court expressed concern that former counsel Gilberto Colon inadequately prepared for the 2004 penalty phase.
The postconviction court concluded that penalty phase counsel's performance during Woodel's 2004 penalty phase was unreasonable under the prevailing professional norms for counsel representing defendants in capital cases wherein the sentence of death has been imposed. As counsel for Woodel during the 2004 penalty phase, Colon had a duty to act reasonably by investigating available mitigation or to make an informed decision as to why such investigation was not necessary.
In light of the circumstances presented in this case, we determine that there is no need for us to address whether counsel's performance was deficient during the penalty phase, as it pertains to his failure to investigate, prepare and present a proper mitigation case. Instead, we conclude that Woodel cannot demonstrate that he is entitled to a new penalty phase because he failed to establish prejudice under the second prong of the
In 2011, Colon testified at the postconviction evidentiary hearing that he defended Woodel during the penalty phases by emphasizing the following to the jury: (1) Woodel's alcohol consumption was one of multiple factors involved with these crimes; (2) Woodel had no violent criminal record; (3) Woodel grew up in a family with deaf parents; (4) Woodel's mother was abusive, neglectful, and provided a poor household environment; (5) Woodel and his sister stole food from the neighbors as often as possible; and (6) Woodel and his sister were placed by their parents in a children's home for a period of years.
We observe at the outset that the late Dr. Henry Dee, a clinical psychologist and clinical neuropsychologist, provided expert testimony before the jury that addressed and augmented the referenced aspects of the defense that Colon presented. Furthermore, the substance of Dr. Dee's expert opinions was directly reflected in the mitigating circumstances found by the sentencing court in 2004.
We find that the testimony provided by Dr. Dee during the 1998 trial and 2004 penalty phase is relevant in the present capital postconviction appeal. We have examined pertinent portions of the transcripts filed as part of the respective records in
Regarding Colon's handling of the presentation of mitigating circumstances in 2004, the postconviction court found that "[a]ll [Colon] did was review records and proceed with the same type of defense." The postconviction court also found that Colon conducted no additional investigation into Woodel's background for mitigation.
Following the 1998 penalty phase, the jury recommended by a vote of nine to three that the sentence of death be imposed for Mr. Moody's murder, and by a vote of twelve to zero that the sentence of death be imposed for Mrs. Moody's murder. In the 1998 penalty phase, Woodel did not testify. During the first trial, the court found substantial mitigation—one statutory mitigator (no significant history of criminal activity) and seven nonstatutory mitigators
Dr. Dee's testimony during the 1998 trial addressed Woodel's background and immediate family history. In summary, Dr. Dee testified that he: (1) reviewed all of the discovery material; (2) learned some time after his initial interviews with Woodel that both of his parents were deaf; (3) interviewed Woodel's father, Albert Woodel, his sister, Bobbi Woodel, his aunt, Margaret (Becky) Russell, his coworker Leola Kilbourn, and Kilbourn's daughter, Lisa; (4) learned from Woodel "the reason [Woodel's mother Jackie] wasn't here is that, after all, she has her own life. And [Dr. Dee couldn't] imagine a time in his life when [Woodel] needed his mother more than he does right now. And she's not here and [Dr. Dee] can't get in touch with her. I guess that's the way life had been for him"; (5) pointed out that because he was the eldest child, Woodel was born into a different household than Bobbi—i.e., Woodel was the only hearing person in his immediate family until Bobbi was born; (6) noted that Woodel had a tendency to sign while he spoke, signing is a "terribly different [language than] ours"; (7) learned from Woodel that his mother was not accepted by other people (family members described her as psychotic and his friends made fun of her); and (8) described Woodel's household as filled with domestic violence, child abuse and neglect, and alcohol and drug abuse.
The record shows that Woodel's former defense lawyers testified that they presented to the jury essentially the same mitigating circumstances in the 2004 penalty phase, including Dr. Dee's expert testimony, as they presented during the 1998 trial. The only exception to the same mitigation case was that Woodel testified for the first time during the 2004 penalty phase. We observe that Dr. Dee's 2004 testimony revisited certain points that he made during Woodel's 1998 penalty phase.
We find it significant that during Woodel's second penalty phase, Dr. Dee testified before the jury that he: (1) reviewed the discovery material obtained from the public defender's office—comprising investigation notes, summaries of the crime investigators and a copy of the taped confession; (2) interviewed Woodel's father, his sister, his aunt and two or three coworkers of Woodel's from Pizza Hut for an estimated four hours; (3) met with Woodel at least seven times for an estimated total of twelve hours; (4) spent a great deal of time with Woodel trying to understand the impact that belonging to a mother-father deaf household had on him; and (5) discussed various other pertinent aspects of Woodel's personal history and family background.
Notwithstanding the substantial mitigating circumstances that the trial court found during Woodel's 2004 penalty phase, the postconviction court concluded that penalty phase counsel provided ineffective assistance to Woodel because counsel neglected to explore other available mitigating circumstances. We agree that counsel failed to explore other mitigation about Woodel's personal history and his multigenerational family background. And, it is evident from the postconviction evidentiary record that counsel did not explore Woodel's background stemming from his childhood years in Michigan and North Carolina even though such information could have been presented to the jury. However, we respectfully disagree with the postconviction court's legal conclusion that Woodel was prejudiced under the
A review of Dr. Dee's unimpeached, expert testimony before the jury in 2004 demonstrates to our satisfaction that Woodel's troubled background was comprehensively presented to the jury. Dr. Dee discussed at length various aspects of Woodel's background including his status as a mother-father deaf person, the pronounced dysfunction of his immediate family's household, and his history of alcohol and drug abuse that began at a very early age. The jury was presented with expert testimony explaining the dynamics of Woodel's personal history and family background. The jury also heard Woodel's testimony that provided information consistent with Dr. Dee's expert opinion.
Consequently, we are satisfied that the jury received a thorough presentation of Woodel's life history and his relevant family background. We further conclude that the presentation of Woodel's personal history and family background was instrumentally accomplished through the extensive expert testimony provided by Dr. Dee. We also note that Dr. Dee's testimony provided key testimonial evidence for the sentencing court's findings of the existing mitigating circumstances related to Woodel's personal history and family background. In 2004, Dr. Dee's testimony was informative and persuasive to the trier of fact.
Accordingly, we find that Woodel was not prejudiced by counsel's alleged failure to investigate, prepare, and present additional and relatively minor mitigation stemming from Woodel's personal history and family background.
Next, Woodel alleges his trial counsel was ineffective because he chose not to present expert testimony to explain to the jury the cognitive effects of alcohol abuse beginning at an early age, and how alcohol affected him physically and mentally throughout his life. In support of his claim, Woodel asserts that Colon should have presented an expert who could explain that due to Woodel's blood alcohol level, he was in a partial alcohol-induced blackout at the time of the murders. Woodel further asserts that given the fact that the jury voted seven to five in its recommendation that a death sentence be imposed, it is plausible that with additional mitigation testimony from an expert on alcohol consumption, the balance of aggravating and mitigating circumstances would have been different.
Colon testified on cross-examination during the 2011 evidentiary hearing that he did not consider using a toxicologist or a similar type of expert to explain to the jury the effects of alcohol or to calculate Woodel's blood alcohol level at the time of the crimes. Colon testified as follows:
In responding to whether there were any foreseeable, negative consequences of presenting an expert on the effects of alcohol, Colon further testified that "when you start producing experts in every piece of the defense, I call that shotgun defense and now the jury starts questioning the validity of the actual defense."
The State contends that Colon's decision not to use an expert on the effects of alcohol should be viewed as a strategy that adhered to his theory for the 2004 penalty phase. The State points out that Colon testified that he wanted to humanize Woodel—by presenting to the jury that Woodel's alcohol consumption was only one of several factors involved in his commission of the crimes.
The record in this case shows that Colon testified that he did not remember all of the circumstances involving his decision not to present expert testimony concerning the effects of Woodel's alcohol consumption. And, the record is silent about whether the non-use of an expert on the effects of alcohol consumption was a strategic decision by Woodel's defense team.
Instead, we conclude that Woodel was not prejudiced under the
We observe that during the 2004 penalty phase Dr. Dee testified, as he did during Woodel's first trial,
Dr. Dee explained, and during the 2004 penalty phase Woodel confirmed during his testimony, that Woodel substantially underrepresented to the police the actual amount of alcohol that he consumed on the night he murdered the Moodys. Woodel apparently under-represented how much he drank in the hours immediately before the Moody murders, because he had an inexplicable aversion to admitting to the detectives the actual amount of alcohol that he consumed. Thus, we observe that Dr. Dee's 2004 testimony, in the context of his evaluation of Woodel's psychological and emotional profile, provided the jury with information showing that Woodel had had problems with excessive alcohol consumption that he was dealing with at the time of the crimes. Dr. Dee's testimony further addressed that in the period of his life prior to the Moodys' murders, Woodel exhibited the behavior of an alcoholic. Colon recalled that he assessed during Woodel's trial that the jurors who lived in Polk County were aware that when someone gets drunk they have memory losses and "things of that nature."
The postconviction evidentiary record shows that during the 2011 hearing Dr. Daniel Buffington, a clinical pharmacologist, provided his expert opinion about the effects alcohol had on Woodel's behavior. From his interviews with Woodel, Dr. Buffington identified certain factors that put Woodel at risk for experiencing partial alcohol-induced blackouts—including family history, genetic predisposition, and binge drinking. Dr. Buffington assessed, as did Dr. Dee, that Woodel exhibited the signs of chronic alcoholism. Dr. Buffington further testified that partial alcohol-induced blackouts would have permitted Woodel to be functional, but experience memory loss of the events pertaining to the crimes. The record shows that Woodel apparently only experienced memory loss about certain aspects of the crimes. For example, when being interviewed by detectives, Woodel stated that he could not remember: (1) how he wrested the serrated-edged knife (the murder weapon) from Mrs. Moody; (2) why her body was found completely nude, except for one sock; or (3) why her panties and nightgown had been wadded up and cast aside near the bed where her body was found.
However, it is evident from the record before us that Woodel was able to recall many pertinent details about the events pertaining to the Moodys' murders during his recorded interview by police detectives. For example, Woodel described how he: (1) entered the Moodys' residence without invitation in the hours before sunrise; (2) inflicted numerous stab and cut wounds on two elderly persons who were many decades older than he; (3) shattered a porcelain toilet tank lid over Mrs. Moody's head to stop her from yelling; and (4) took items from the Moodys' residence including Mr. Moody's wallet, keys, and other items that did not belong to Woodel.
Even if Dr. Buffington's testimony concerning Woodel's probable alcohol-induced partial blackout, or some other comparable expert's testimony had been presented to the penalty phase jury in 2004, we conclude that such expert testimony is not dispositive for establishing prejudice under
Next, Woodel alleges his trial counsel was ineffective for failing to locate and consult with an expert on the deaf culture and its impact on CODA. According to Woodel, Colon's reliance on Dr. Dee's inadequate testimony about Woodel's CODA status prejudiced him during the 2004 penalty phase. Instead, Woodel urges us to conclude that the testimony of CODA expert, Dr. Alan G. Marcus, during the 2011 postconviction evidentiary hearing demonstrates why Colon was ineffective regarding his failure to locate a CODA expert.
The postconviction evidentiary record shows that Dr. Marcus testified that there were numerous studies available about CODA in 2004. Dr. Marcus also testified that the scholarly book Dr. Dee read to provide consultation about CODA to Woodel's defense counsel in 1998 and 2004 was an anthropological study, not a psychological review. The postconviction court observed that: "[Dr.] Marcus concluded that Dr. Dee did not totally understand the profound effect of having two deaf parents had on [Woodel]." The State argues that there is no showing that Colon could have readily uncovered a CODA expert in 2004.
In the 1998 and 2004 court proceedings, Dr. Dee provided extensive and unimpeached expert testimony about the deaf culture in general, and persons with "mother-father deaf" status in particular. After reviewing Dr. Dee's testimony, we determine that his reference to Woodel's "mother-father deaf" status is equivalent to the parties' present discussion of Woodel's CODA status. In our view, Dr. Dee utilized his expertise and experience as both a clinical psychologist and clinical neuropsychologist to provide extensive testimony that was relevant in Woodel's sentencing phase. In 1998, Dr. Dee testified that he performed independent research and also utilized the assistance of a professional librarian to familiarize himself with the deaf culture and mother-father deaf subculture. In 2004, Dr. Dee again testified about his additional research into the deaf culture; he also discussed his understanding of the mother-father deaf subculture.
Given the quality of testimony Dr. Dee provided to the jury in 2004, we determine that the jury was presented with a reasonably clear description of Woodel's background in a mother-father deaf household, and his life within the deaf culture. Notwithstanding that the prevailing terminology has apparently been most recently designated as CODA, the jury was presented with relevant expert testimonial evidence from Dr. Dee concerning Woodel's CODA status during the 2004 penalty phase. We note that the sentencing court found the nonstatutory mitigating circumstance that his parents were deaf and spoke primarily in sign language—giving that factor moderate weight. We conclude that the trier of fact had a sufficiently thorough presentation about the mitigating circumstances that existed concerning Woodel's status as a CODA and, therefore, our confidence in the outcome of the penalty phase has not been undermined regarding this subclaim based on counsel's failure to present cumulative mitigation.
The postconviction court's order made the following findings and conclusion of law regarding Woodel's Claim IIB—Counsel's failure to ensure a reasonably competent mental health evaluation:
The postconviction court considered testimony from three experts (Drs. Cunningham, Buffington, and Marcus) in drawing its conclusion that trial counsel failed to ensure that Woodel received a reasonably competent mental health evaluation. However, the postconviction court did not explain how such expert testimony influenced its conclusion that Woodel was prejudiced by Colon's alleged professional errors during the 2004 penalty phase. And, the postconviction record provides insufficient testimonial evidence from the identified experts that trial counsel failed to ensure Woodel had a proper mental health evaluation in preparation for trial.
Colon testified during the postconviction evidentiary hearing "that there was no testimony or evidence available that Mr. Woodel had any mental illness." Colon further testified that "Dr. Dee looked for [any mental illness] but came up empty." Colon further testified that "growing up in the family that [Woodel] grew up [in] and the environment that he grew up in may have provided a basis for this, but Dr. Dee could not pinpoint that."
The record filed along with Woodel's previous appeals to this Court also shows that Dr. Dee examined and performed the mental health evaluation of Woodel for the defense. Dr. Dee also provided multi-faceted information about Woodel's life history within his report to Woodel's defense team. The postconviction court did not state why Colon's reliance on Dr. Dee's mental health evaluation of Woodel, in lieu of obtaining such an evaluation by another mental health clinician, resulted in Woodel receiving an unreliable penalty phase in 2004.
Based on the evidence presented to the jury, including information provided from Dr. Dee's mental health evaluation of Woodel, the sentencing court found extreme emotional disturbance as a statutory mitigating circumstance and accordingly assigned it little weight. Furthermore, the experts that testified during the postconviction evidentiary hearing addressed issues that had been previously identified and given weight as mitigating circumstances during Woodel's 2004 penalty phase: (1) Drs. Cunningham and Buffington identified certain risks associated with Woodel's alcohol and drug abuse—this circumstance was found as the statutory mitigator of substantial impairment of capacity to appreciate his actions or conform his conduct to the requirements of law (given little weight), and nonstatutory mitigator abuse of alcohol and drugs (given little weight); and (2) Dr. Marcus opined that there were special psychological and emotional problems faced by CODA—this circumstance was found as the statutory mitigator of extreme emotional disturbance (given little weight), and the nonstatutory mitigator of being a child of parents who were deaf and spoke primarily in sign language (given moderate weight). Based on the totality of the record, our confidence in the outcome is not undermined so as to establish prejudice, because there is no evidence that Woodel did not receive a reasonably competent mental health evaluation in preparation for trial.
The postconviction court's 2011 order includes the following statements regarding Woodel's Claim IIC—Counsel's failure object to Arthur White's testimony that Woodel fondled Mrs. Moody:
The postconviction court found that Colon was deficient in the 1998 and 2004 penalty phases for not filing a motion to exclude White's testimony because the prejudicial effect regarding fondling far outweighed the probative value. However, the State aptly points out that in
985 So. 2d at 530. In
The postconviction court found it unnecessary to perform a cumulative assessment of alleged trial counsel errors in light of its judgment that penalty phase counsel was ineffective. And, although neither party raises any cumulative effect of trial counsel errors on this appeal, we nevertheless address the reasons why there is no cumulative effect of the alleged errors entitling Woodel to relief due to ineffective assistance of trial counsel.
First, we find no reasonable probability that the proposed additional mitigating circumstances pertaining to Woodel's personal history and family background would have had any impact on the trier of fact, because such information would have been cumulative to evidence that was presented and the mitigating circumstances that were found during Woodel's second penalty phase.
Next, the record reflects that, despite the lack of testimony from an expert on the effects of alcohol consumption, the trier of fact was able to understand from Dr. Dee's testimony and other evidence that Woodel was an alcohol abuser who had difficulty dealing with his alcohol abuse during the period when he murdered the Moodys. Thus, even if counsel's failure to present testimony from an expert on alcohol consumption constituted error, it was harmless error.
Next, we determine that there is no reasonable probability that additional testimonial evidence about Woodel's CODA status from another expert would have changed the outcome of Woodel's second penalty phase; therefore, our confidence is not undermined because such evidence would have been cumulative to what the trier of fact actually heard.
Next, the postconviction evidentiary record does not show that any expert explained why the mental health evaluation performed on Woodel for trial was not competent, or identified any previously undisclosed mental health issue that would have had a reasonable probability of changing the judgment of the trier of fact to impose the sentence of death.
Finally, Woodel's allegation that trial counsel was ineffective for failing to move to exclude Arthur White's testimony is unavailing. As noted above, in light of our decision in
We find no cumulative error because the allegedly unexplored mitigating circumstances were: (1) cumulative to those presented during the second penalty phase; (2) insufficiently demonstrated during the postconviction evidentiary hearing; or (3) otherwise failed to satisfy the
In conclusion, we find the assertions that trial counsel's professional errors deprived Woodel of a fair second penalty phase fail to satisfy the prejudice prong of the
The postconviction court denied Woodel relief from ineffective assistance of counsel under this claim regarding his convictions during the 1998 guilt phase. The court below found that Allen R. Smith, guilt phase counsel, was deficient to the extent that Smith did not "at least consult with a toxicologist or similar type of expert to determine if such an expert could provide useful assistance to the defense with regard to [the defense's] argument of voluntary intoxication and lack of premeditation on part of the Defendant." However, the postconviction court found no prejudice pursuant to the
Woodel's argument that Smith provided ineffective assistance of guilt phase counsel for allegedly failing to consult with an expert on the effects of Woodel's alcohol consumption is without merit. In our decision pertaining to Woodel's first direct appeal, we acknowledged that the trial court specifically rejected the defense's assertion that Woodel was so intoxicated that he could not form the intent to kill.
The postconviction court denied Woodel relief based on his allegation of ineffective assistance of counsel for failure to object to White's testimony during the 1998 guilt phase. The lower tribunal concluded that there was no evidence presented during the 2011 evidentiary hearing to demonstrate that Smith was deficient for not filing a motion to exclude White's testimony that Woodel admitted to sexually fondling Mrs. Moody. The postconviction court also concluded that there was no prejudice under the
We have previously decided, for the reasons discussed above, that there was no showing that the admission of White's testimony constituted fundamental error.
The postconviction court found that Woodel did not prove any of his allegations that the State violated his rights under
More than a decade ago, the Supreme Court of the United States reiterated that in order to establish a
U.S. 263, 281-82 (1999).
With regard to any alleged
This Court applies a mixed standard of review on postconviction
We find nothing in this record to contradict the postconviction court's judgment that there was no evidence that White made a deal with the State to testify against Woodel. Thus, there is no showing that any evidence favorable to Woodel existed to satisfy the first prong under
The postconviction court denied relief under
In previous cases, we have stated that whenever a claimant alleges that the prosecutor has acted in violation of
In our consideration of postconviction
There is simply no showing in the record that a deal was struck between White and the State regarding White's testimony against Woodel. Here, Woodel urges us to infer that because White was an habitual felony offender, who had been in and out of prison for twenty-five years, White should not have been able to receive relatively lenient sentences for his then new convictions. In addition, Woodel asserts that White's prison terms were to be followed by a moderate probation period. Woodel argues that the inexplicable leniency shown in White's eventual sentencing evinces that White had a deal with the State to testify against Woodel. The
Woodel also alleges that White gave false testimony concerning his felony conviction record, and that the State failed to correct it. Assuming, arguendo, that Woodel can carry his burden under the first two prongs, we evaluate whether the State can carry its burden under the third prong of the
The State argues that White's testimony was not material because it is reasonable that the jury's verdict would not have been affected by White's allegedly false testimony. The State further argues that the jury was well aware that White had been in and out of prison during his then twenty-five-year history as a habitual offender; and that White was motivated to testify against Woodel, because he hoped to gain some benefit from his testimony.
We, therefore, conclude that the allegedly "false testimony" from White was not material in Woodel's case because there is no reasonable possibility that the jury's verdict was affected by White's openly self-serving testimony. Accordingly, we affirm the postconviction court's 2011 order to the extent it denies Woodel any relief because there is no evidence establishing that the State violated
In reversing the postconviction court's judgment that Woodel be afforded a new penalty phase, we briefly pause to reiterate our continual adherence to the general premise that the appellate courts of this State should give all due deference to the trial courts' findings of fact that are based on competent, substantial evidence.
We hold that Woodel is not entitled to any relief due to ineffective assistance of counsel under the
It is so ordered.
QUINCE, LABARGA, and PERRY, JJ., concur.
LEWIS, J., concurs in result.
CANADY, J., concurs in result with an opinion, in which POLSTON, C.J., concurs.
PARIENTE, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
CANADY, J., Concurring in result.
I concur with the majority's decision reversing the portion of the trial court's order granting a new penalty phase and affirming the portion of the trial court's order denying a new guilt phase. Even assuming that Thomas Woodel demonstrated that his trial counsel conducted an unreasonable penalty phase investigation, Woodel failed to establish that he was prejudiced as required by
In this case, the postconviction court wrote a detailed order in which it concluded that trial counsel erred by failing to: (1) consult a toxicologist or similar expert to testify about the role Woodel's alcohol abuse played in the crimes; (2) investigate and present a multigenerational history showing the pattern of alcoholism, abuse, and abandonment in Woodel's family; (3) present a reasonably competent mental health evaluation; and (4) file a motion to exclude witness White's testimony. The postconviction court did not, however, include any reasoning for its conclusion that these errors prejudiced Woodel. I agree with the majority's determination that the postconviction court's unexplained finding of prejudice cannot withstand scrutiny.
After explaining the legal error in the postconviction court's determination that trial counsel erred by failing to file a motion to exclude White's statements, the majority—contrary to the dissent's criticism—examines "whether counsel's deficiency as a whole operated to undermine confidence in the outcome of the penalty phase." Dissenting op. at 59. The majority explains that the "allegedly unexplored mitigating circumstances" were either cumulative to mitigating evidence actually presented, insufficiently proven at the evidentiary hearing, or not significant enough to undermine confidence in the penalty phase as required by
During the 2004 penalty phase, trial counsel called Woodel, his sister Bobbie, his father Albert, and an aunt who helped raise them to testify about the abuse and extreme neglect Woodel suffered as a child. Woodel and Bobbie also testified about Woodel's adult life, including his abuse of alcohol. The defense then called Dr. Henry Dee, a clinical psychologist and neuropsychologist, who explained the psychological impact of Woodel's experiences and addressed some of the unique difficulties that Woodel suffered as a result of being a hearing child of deaf parents.
Based on this testimony, the sentencing court concluded that the defense proved four statutory mitigating factors—including both mental health mitigating factors—and fourteen nonstatutory mitigating factors. Regarding the circumstances of the offense, the sentencing court found that on the night of the crime, Woodel felt "acutely alone" and quickly drank "an unquantified amount of beer that may have been as much as twenty-four cans or bottles," that left Woodel unable to "recall what he was doing during some of the time leading up to the crime."
The sentencing court found these mitigating factors were weighty but ultimately concluded that they did not outweigh the serious aggravating factors that applied to the murder of Bernice Moody: (1) Woodel was previously convicted of a contemporaneous capital felony; (2) the murder was committed during the commission of a burglary; (3) the murder was especially heinous, atrocious, or cruel; and (4) the victim was particularly vulnerable due to advanced age or disability.
The mitigating evidence presented during the postconviction evidentiary hearing primarily differed from the penalty phase evidence in that it provided more detail about deaf culture and documented the dysfunction of several generations of Woodel's extended family, not just the family members who spent considerable time with Woodel. The postconviction evidence—considered as a whole—did not, however, paint a materially different picture of Woodel's mental state or "change[] the very nature of the crime." Dissenting op. at 78. No evidence at the hearing established a reason—other than burglary—for the attack or refuted the evidence that despite Woodel's intoxicated state and usual mild demeanor, the attack on Bernice lasted for "some time" and involved both the repeated stabbing and bludgeoning of a partially disabled seventy-four-year-old woman. Sentencing Order at 5. Regardless of any flaws in trial counsel's investigation, the postconviction presentation did not undermine confidence in the 2004 penalty phase.
The dissent's position that Woodel did prove that he was prejudiced appears to rest primarily on an exaggerated view of the differences between the postconviction testimony of clinical psychologist Dr. Alan Marcus and Dr. Dee's 2004 penalty phase testimony. The dissent rests on the unfounded conclusion that "Dr. Marcus's testimony, if it had been presented, would have provided the jury a completely different picture of how the crime occurred and substantially increased the mitigation available to the finder of fact." Dissenting op. at 71.
First, Dr. Marcus's testimony did not establish a mitigating "possible explanation as to how this baffling crime transpired."
Furthermore, Woodel's own penalty phase testimony refuted the theory that due to his upbringing in the deaf community and his intoxication, he mistakenly believed that it was appropriate for him to enter the Moodys' trailer without invitation. Woodel testified that when he first approached the screen porch door of the Moodys' trailer, he "stood there waiting for [Bernice] to . . . turn around and notice me so I could ask her what time it was." Once on the porch, Woodel testified that he heard Bernice tell him to "[g]et out of my trailer" and that when she came to the back door with a knife, he "pushed her back" in order to actually enter the trailer. It would be unreasonable for the jury to conclude from this evidence that Woodel did not know—until it was too late to retreat—that he was unwelcome in the Moodys' trailer.
Second, the postconviction evidence did not establish that Dr. Dee "present[ed] misleading evidence to the jury that psychological testing indicated that Woodel was psychotic." Dissenting op. at 72. To the contrary, Dr. Dee testified that he could not interpret the Minnesota Multiphasic Personality Inventory (MMPI) given to Woodel because the test results were invalid and repeatedly explained that other testing and his clinical evaluation demonstrated that Woodel was not psychotic or schizophrenic. Dr. Dee testified that he administered an instrument expressly designed to test for psychopathic traits and that Woodel's "score didn't even approach—even get close to the cut-off score of 30 that's necessary [for] psychopathy." Dr. Dee further testified that the invalid results of the MMPI, Woodel's "idiosyncratic" interpretation of items in the psychological testing, and Woodel's hand movements, led Dr. Dee to discover that Woodel's parents were deaf. Accordingly, while Dr. Dee did not know prior to administering the MMPI that the results would likely be invalid due to Woodel's status as a child of deaf parents, Dr. Dee discovered that fact and explained to the jury that Woodel was not psychotic.
Third, while Dr. Marcus testified in more detail about the deaf community and the particular difficulties faced by children of deaf adults (CODAs), Dr. Marcus's explanation of Woodel's experiences as a CODA and the psychological effects of those experiences did not materially differ from Dr. Dee's presentation during the 2004 penalty phase. Dr. Dee testified about the "specific subculture" of hearing children of deaf parents. Dr. Dee explained that through adolescence, such children generally associate with and identify with deaf individuals and then experience "shock" and "hurt" when they are "progressively excluded from that culture because they have to enter the hearing world." And because the parents do not know what it is like to hear, the parents cannot appreciate the struggles their children experience when transitioning between two worlds. Moreover, Dr. Dee explained that Woodel's "verbalizations [were] often incomplete and almost b[are] in content" but when Woodel signed, "there was a richness of communication and depth of feeling." Dr. Dee opined that as a result of Woodel's experiences as a child, he had "difficulty with abstract concept formation and understanding feelings" but that Woodel nevertheless did, in fact, feel remorse.
Dr. Dee also testified about the social dynamic between deaf parents and hearing children generally and Woodel and his parents specifically. Dr. Dee explained that when Woodel's parents were young, deaf children were generally raised in schools for the deaf—rather than by their parents—and that the administrators of these schools did not use sign language. Children raised in those environments learned that they could not communicate meaningfully with adults and were rarely told why they were being disciplined. As a result, the children looked to each other to solve problems, and once they became parents, this generation expected their children to act as peers and tended to be either very permissive or arbitrarily harsh. Dr. Dee noted that where the children of deaf parents can hear, there is an additional layer of "pseudoresponsibility and pseudomaturity" thrust upon the children. He explained that because they could hear and speak, Woodel and his sister, like many CODAs, were expected to communicate for their parents, often in developmentally inappropriate situations such as when a parent needed medical care or was questioned by law enforcement officers.
Finally, while Dr. Dee did not himself use sign language to communicate with Woodel, Dr. Dee was able to interview Woodel about his upbringing. In addition to testifying about the struggles Woodel and his siblings faced as CODAs, Dr. Dee testified about other "pernicious factors going on in" Woodel's childhood. Dr. Dee explained that Woodel and his siblings "were frequently abandoned by their parents." Dr. Dee noted that Woodel moved at least twenty-three times before he was fifteen years old—including being left at a children's home for approximately two years—that the siblings would be left with relatives for long periods, and that for days at a time, they would be left with "whomever would take them" or entirely without adult supervision. Dr. Dee explained that such abandonment "leads to terrifying loneliness," "chronic depression," and "low self-esteem." Dr. Dee also testified that Woodel was physically abused on at least one occasion. Further, while Woodel did not report any sexual abuse, Woodel's sister testified that she was sexually abused by one of her mother's boyfriends, and despite Woodel's denial, Dr. Dee suspected that Woodel might also have been sexually abused. Overall, Dr. Dee opined that Woodel's childhood was "[f]illed with some of the most spectacular neglect and abuse that I think I [have observed] ever."
Based on the foregoing, this is not a case in which "minimal mitigation evidence [was] presented to the jury at Woodel's resentencing" and "other significant mitigation" was overlooked. Dissenting op. at 58, 76. Accordingly, I concur in the majority's conclusion that a new penalty phase is not warranted.
POLSTON, C.J., concur.
PARIENTE, J., Dissenting.
After conducting a lengthy evidentiary hearing and analyzing all of the evidence presented at the hearing in a comprehensive eighty-six-page order, the trial court concluded that a new penalty phase is required because confidence in the sentence of death has been undermined based on trial counsel's troubling failure to properly prepare for the penalty phase and present important available mitigation, even after he was given a second chance when a new penalty phase was previously ordered. I dissent from the Court's rare step of reversing the trial court's determination that its confidence in the death sentence was undermined.
This Court's reversal of the trial court's exceptional grant of postconviction relief is even more troubling in light of the fact that, even with the minimal mitigation evidence presented to the jury at Woodel's resentencing, the jury recommended a life sentence as to one of the murders and recommended a death sentence for the other murder by the slimmest margin possible—a seven-to-five vote. For the reasons addressed below, after a full assessment of all of the evidence presented at the resentencing, in addition to the newly discovered mitigation evidence presented during postconviction proceedings, in my view, competent, substantial evidence supports the trial court's factual findings that formed the basis for granting a new penalty phase and the trial court did not err when in undertook its legal analysis.
Like the trial court, I conclude that the failure of trial counsel to pursue additional mitigation and perform any additional meaningful investigation prior to Woodel's resentencing undermines confidence in the outcome of the death sentence, which was recommended by a bare majority of the jury. A proper analysis of Woodel's ineffective assistance of counsel claim under
In this case, not only does the majority fail to address deficiency at all, but the majority never conducts a full analysis of the
While the majority undertakes a separate cumulative error analysis after erroneously concluding that Woodel's
For those reasons, I view this case as very similar to the United States Supreme Court's reversal in
Moreover, this flawed analysis in this case may have led the majority to improperly conclude that the prejudice prong of
Even though defense counsel did present some witnesses who testified during the resentencing as to the abuse that Woodel suffered during his life, one of the primary witnesses counsel relied upon was the abuser himself who attempted to mitigate his own actions. The other witness was Woodel's aunt, who did not have much contact with Woodel.
By contrast, the quality of the witnesses presented at the postconviction evidentiary hearing provided a more complete picture of not only the abuse, but the impact of being a child of deaf parents. Postconviction counsel found numerous witnesses who were willing to testify, all of whom were available to trial counsel if he had just performed a proper investigation. These witnesses included Woodel's half-brother, who also grew up in the same abusive environment and suffered significant addiction problems as an adult; Woodel's uncle, who discussed the inter-generational abuse within the family; witnesses who knew Woodel when they lived at the Children's Home and saw Woodel's desperate attempts to fit into the hearing world; people who interacted with Woodel's parents and interacted with Woodel when he was a child and who could have testified as to the situation that Woodel faced growing up; a mental health counselor who saw Woodel when he was young and thought his parents were unfit to raise children; neighbors and acquaintances who knew Woodel's parents and expressed concern because, based on their limited interactions, they understood that Woodel's parents were unfit to raise children; a psychiatrist who works with the deaf and hard of hearing, as well as with children of deaf adults (CODAs); an expert as to clinical pharmacology, who discussed the effect of alcohol on Woodel at the time of the crime; and a psychologist who testified as to the significant limitations that Dr. Dee had in attempting to provide his diagnosis during the trial and the second penalty phase based on Dr. Dee's lack of sufficient information.
As addressed in more detail below, I first review the deficiency of Woodel's trial counsel in completely failing to ensure that a full mitigation investigation was undertaken in this case, even though counsel had two attempts in which to act, and second, I review the clear prejudice that this deficiency had on the case.
While this Court can properly deny relief if either deficiency or prejudice is lacking, the majority's failure to address counsel's numerous glaring deficiencies, in addition to its piecemeal approach to each subclaim of prejudice, provides an incomplete picture of why a new penalty phase is required. The deficient performance is even more egregious because counsel had a second chance to pursue important investigative leads between the initial and second penalty phases and completely failed to do anything additional during this significant timeframe.
As the trial court pointed out, although the prejudice analysis must focus on the 2004 trial, the deficiency must be seen as starting during the 1998 proceeding. The evidentiary record establishes trial counsel's complete failure to investigate necessary mitigation prior to the start of the first trial, including crucial social history and Woodel's background. Instead, counsel relied solely upon hiring a mental health expert, Dr. Dee, who had not been provided with the necessary background information. Dr. Dee himself requested counsel to hire a person who could help him find witnesses to interview as a part of his evaluation.
But it was not until three days
One of Woodel's trial attorneys admitted during the postconviction evidentiary hearing that he did not realize that both of Woodel's parents were deaf until the trial had commenced. Defense counsel did not recall interviewing Woodel's father until after the trial began and never found Woodel's mother, although counsel also did not hire an investigator. At the initial penalty phase, counsel called Dr. Dee, a few people who knew Woodel at the time of the crime, and three of Woodel's family members: Woodel's father, sister, and aunt. However, at trial, Woodel's father testified in an inconsistent manner from his prior statements to Dr. Dee, and because a proper background investigation was never conducted, the defense did not have adequate information to respond.
After the initial penalty phase, the jury recommended a sentence of death for both murders, which the trial court imposed. However, because the trial court failed to provide an adequate sentencing order, this Court reversed for a new penalty phase.
Specifically, counsel failed to request that Maloney, or any other individual, finish the investigation that began in 1998. Instead, trial counsel simply proceeded with the same information gleaned from the original trial. As the trial court stated:
While this Court does not engage in 20/20 hindsight or second-guess strategic decisions, to reach the conclusion that trial counsel was seriously deficient, the Court needs only to look at what trial counsel himself told the trial court in 1998 as to the further necessary investigation, when counsel requested a continuance in order to pursue the additional mitigation sought by Dr. Dee and Maloney. Moreover, the failure to properly investigate can never be considered a strategic decision.
Maloney testified at the evidentiary hearing, detailing the considerable additional investigation that she normally would have conducted had she not been constrained by the significant time limitations during the original trial. Maloney, who served as a mitigation specialist in a number of prior cases, was familiar with the substantial amount of work required to investigate and prepare for a penalty phase, stating that she usually had almost a year to investigate a capital defendant's background and history when she was hired as a mitigation investigator. In this case, she was hired as support during the few weeks while the trial progressed. She testified that when she learned that both of Woodel's parents were deaf, she was "frantic . . . to try to understand that particular issue and the dynamics of it" but had very little time. She found a book on the matter, which she gave to Dr. Dee. If she had been appointed to perform a mitigation investigation with sufficient time, however, she testified that she would have contacted Thomas Kerwin, a mental health expert that Woodel saw as a child; contacted people who worked at the Children's Home where Woodel lived for years as a child; visited the areas where Woodel grew up; and contacted people in the deaf community.
In addition, attorney Robert Norgard testified as an expert on prevailing professional norms among capital defense attorneys. While he was troubled by many things that occurred in this case, Norgard was particularly bothered by the fact that Woodel's trial counsel did not realize that Woodel's parents were both deaf until well into the guilt phase of the trial, as this would have been apparent if counsel had interviewed the parents prior to trial. As he testified, "[That is] the part that just really boggles my mind about the whole situation is that a basic penalty phase investigation would start with the parents. And the first contact with the parents you would have known they were deaf, whether your client told you or not, so. I mean, that's the part that, you know, surprises me about the late discovery of it." The trial court detailed the numerous problems that Norgard discussed, including the amount of research defense counsel failed to undertake before determining whether to present expert testimony concerning a voluntary intoxication defense, evidence concerning addiction and its genetic components in this case, and the complete lack of additional preparation when a new penalty phase was ordered.
Trial counsel himself recognized that although he was responsible for investigating all possible mitigation, he never spoke with numerous members of Woodel's family, including Woodel's mother, half-brother, or childhood friends. In addition, trial counsel recognized that he did not retain a mitigation investigator to help prepare for the second penalty phase or perform additional investigation, even though counsel had previously recognized that additional time and investigation were necessary. Trial counsel explained his decision not to investigate all available mitigation as follows: "I didn't feel that it was necessary based on the package I was presenting. And, as I said before, looking back now, that may have been a very bad idea."
The trial court detailed the numerous deficiencies, and based on the record in this case, there can be no question of counsel's deficient performance. The inquiry then turns to whether prejudice has been demonstrated such that our confidence in the sentence of death has been undermined, as the trial court found.
Numerous witnesses testified at the postconviction evidentiary hearing in great detail as to the abuse that Woodel suffered and the additional mitigation available. While there was discussion of abuse in the second penalty phase proceeding, the quality of the witnesses who were called at the postconviction evidentiary hearing provided a more complete picture of not only the abuse, but the impact of being a child of deaf parents. Although Woodel's trial counsel simply chose not to fully investigate the available mitigation because he was content with the witnesses that he found, failing to investigate and failing to present the lay testimony at issue can never be considered a strategic decision of counsel. Moreover, while trial counsel did not believe that it was necessary to introduce a toxicologist to assist in explaining voluntary intoxication, in describing why he did not investigate whether an expert on the deaf culture would have been helpful, trial counsel again dismissed the need to seek out such information because he "felt comfortable with the package" he was presenting to the jury.
Thus, the issue before this Court does not involve a scenario where counsel failed to present certain evidence because it would open the door to the admission of unfavorable evidence or evidence that would damage a defense. Instead, counsel made an unreasonable decision to not conduct any additional investigation that would have uncovered other important mitigation witnesses who could have been very helpful to the defense.
During postconviction proceedings, Woodel presented the testimony of Dr. Alan Marcus, a clinical psychologist who works with the deaf and with children of deaf parents and who is also a child of deaf parents. Dr. Marcus noted the limitations of the testimony presented by Dr. Dee at the resentencing since Dr. Dee had no prior experience working with children of deaf parents and his sole preparation for testifying in the case was to review the book
First, and perhaps most importantly, because Dr. Marcus was familiar with the deaf community and culture, he was able to provide a possible explanation as to how this baffling crime transpired—testifying that the murder may have occurred after an escalation stemming from an initial misunderstanding that was based on the fact that Woodel still acted like a member of the deaf community. Specifically, Dr. Marcus thoroughly explained the importance of socialization for those in the deaf community and how it was common in the deaf community for people to leave their front doors unlocked so they would not miss the arrival of visitors. Likewise, it was not contrary to societal norms for members of the deaf community to walk into each other's homes, unannounced.
Here, the murder happened after a very intoxicated Woodel walked into the victims' home to inquire as to the time. Woodel saw that Bernice Moody was awake when she was cleaning, and he knocked on the door. When she did not answer, Woodel thought she could not hear his knock and walked in. Woodel's statements describing how he first approached the victim were difficult to follow as he contradicted himself, giving three different accounts as to where he was located when Bernice first saw him: he was at the door that went into her bedroom, he was not inside yet, and he was on the porch. When he was questioned further as to where he was when Bernice first saw him, he stated that he could not remember and was unsure. He testified that when Bernice saw him, she took a few steps away, picked up a knife, and swung it at him as she yelled. Woodel attempted to explain why he was there, as she yelled and swung the knife. On the third swing, Woodel pushed her backwards and somehow acquired the knife, although he could not recall how. According to his statement, Woodel thought at the time that she was trying to cut him. Taking Dr. Marcus's insight together with Woodel's intoxication and his upbringing where it was permissible to walk into each other's homes, the defense could have argued that Woodel did not realize his error in entering her house and thought the victim was threatening him.
Second, and important to the quality of the mitigation presented, because Dr. Dee was unfamiliar with the deaf community, he utilized the incorrect psychological testing, thus presenting misleading evidence to the jury that psychological testing indicated that Woodel was psychotic. Before addressing the testing itself, Dr. Marcus explained how English is a second language to a child of deaf parents, with sign language being his or her primary language. Further, Dr. Marcus noted that even Dr. Dee recognized Woodel's difficulties in being able to fully express himself orally in English. Dr. Marcus explained critical differences between the English oral language and American Sign Language, stressing that a person cannot simply translate the English language into American Sign Language because American Sign Language is visually driven, while the English language is sound driven.
As to the administration of psychological testing, including the Minnesota Multiphasic Inventory (MMPI), Dr. Marcus testified that it is widely recognized that the MMPI is inappropriate for deaf people or children of deaf parents because there are too many concepts and terminologies that are misunderstood in the translation, which skews the results. However, the test had never truly been translated into American Sign Language because of the difficulty in translating some of the questions and concepts that are sound based. Based on these problems and the skewed results, as Dr. Marcus directly stated, "They come out looking crazy in simple terms." However, Dr. Dee administered this test to Woodel, testifying to the jury that when he administered the MMPI to Woodel, the test results indicated that Woodel was psychotic. Although Dr. Dee questioned this result, he did not realize that the MMPI was inappropriate, and merely expressed his concerns that the results of the MMPI must have been flawed for some reason, but was unable to provide an explanation for this result to the jury.
Third, Dr. Marcus interviewed Woodel in sign language, which was incredibly important in light of the apparent difficulties that Woodel had in fully expressing himself verbally. Although Dr. Dee recognized that Woodel was not fully stating his thoughts and opinions verbally as he used both sign language and oral responses, Dr. Dee attempted to remedy this problem by asking Woodel what he was signing. Yet, Dr. Dee also recognized that Woodel's interpretation of words and his use of language were so odd that as to certain discussions, Dr. Dee "couldn't make any sense out of what [Woodel] was trying to tell me." However, neither Dr. Dee nor Woodel's counsel ever obtained an interpreter to assist in the communication problems. In interviewing Woodel in sign language, Dr. Marcus was able to provide significantly more details about the impact of Woodel's upbringing on his life and how the abandonment from his parents and the exclusion from the deaf community affected him. In addition, because Dr. Marcus was a child of deaf parents himself, he was able to provide a detailed picture about the culture of the deaf community and other relevant factors.
Finally, having personal familiarity with being a child of deaf parents, Dr. Marcus was able to provide a fuller picture of the relationship between deaf parents and hearing children and the subsequent rejection of older hearing children from the deaf community. Generally, when deaf adults have infants, there is not much separation between parent and child. However, once a child is able to communicate with the hearing world, he or she would be expected to become an adult for his parents, despite the child's very young age.
Many children of deaf parents are forced to help their parents navigate through the hearing world, including helping them obtain Social Security benefits or helping them to deflect any possible trouble with the law. For example, if the child is being required to intervene when his or her parents are involved with a police officer, the child would not tell the officer the truth, but would protect his or her parents. Thus, the families do not obtain the help they need. If a police officer were to encounter a child who was abandoned at the mall by a parent, like the situation that occurred to Woodel, the child would not tell the officer the truth, but would lie for the parent and say that he or she simply got lost.
Despite this close attachment to the deaf community as a child, however, based on the mistrust of the hearing world, as a hearing child gets older, he or she could end up being excluded from the deaf world. Thus, children of deaf parents often feel they have no place where they belong. In Woodel's case, he was abandoned by both his family and the deaf community, which was the society in which he grew up. For Woodel and his sister, being a part of the deaf world was a part of their identity. Woodel and his sister tried to sign at the Children's Home in order to keep their identity as a part of the deaf world, but they were punished because others thought that they were keeping secrets.
Not only did postconviction counsel present evidence at the evidentiary hearing as to this important factor, but counsel also presented other significant mitigation, including that all of Woodel's siblings, including his two half-brothers, had significant addiction problems; that Woodel's parents had serious addiction and physical abuse problems; and that Woodel's half-brother had been raped by his mother's boyfriends, just like his sister had been—evidence that was important for the jury to hear because Woodel testified that he was unable to recall that period of his life and whether he had been raped.
Woodel also called Dr. Mark Cunningham, who testified that based on the numerous damaging developmental factors, the family history, the generational abuse, and the dysfunctions to which Woodel was exposed, this was one of the worst cases that he had encountered, and the lack of a proper mitigation investigation prior to the trial affected Dr. Dee's ability to perform an adequate assessment. Specifically, Dr. Cunningham discussed the significant hereditary and genetic predispositions that impacted Woodel—Woodel had significant damaging developmental factors as he grew up, including being uprooted and moved at least twenty-seven times by the time Woodel was in middle childhood; Woodel suffered from deficient and disrupted attachment, emotional and physical neglect, probable sexual abuse, abandonment, and rejections and failures; and significant parental drinking and abuse. According to Dr. Cunningham, without this crucial information, the jury was left with a simple impression that Woodel's life should be spared because he had a bad childhood, but the jury was never provided with over thirty well-articulated damaging developmental factors that impacted Woodel and the generational abuse within his family that would have provided necessary information to show the significance of the mitigation and how it impacted him.
On too many occasions, this Court has addressed cases in which counsel failed to conduct a mitigation investigation until trial began—conduct that is clearly deficient and will have a significant impact on the case.
During postconviction proceedings, however, current counsel discovered significant additional mitigation, some of which changes the very nature of the crime, and clearly could have impacted the jury's bare majority seven-to-five recommendation. The bottom line is that trial counsel chose not to undertake a full mitigation investigation, which would have uncovered other important mitigation witnesses who were far more compelling than the witnesses that trial counsel utilized during the second penalty phase, who were simply recycled without any additional thought or analysis.
Accordingly, the failure to present the considerable mitigation that existed but was never pursued, due to the deficiencies of trial counsel, results in prejudice such that confidence in the outcome has been undermined. The trial court considered all of this evidence, asked careful and thoughtful questions throughout the evidentiary hearing, and analyzed all of the relevant information in an extensive eighty-six-page order. Based on the analysis above, I would affirm the trial court's decision to grant a new penalty phase.