PER CURIAM.
Michael Coleman appeals an order of the circuit court denying his motion to vacate his convictions of first-degree murder and sentences of death filed under Florida Rule of Criminal Procedure 3.850 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons expressed below, we reverse the circuit court's denial of postconviction relief
Michael D. Coleman was convicted of the first-degree murders of Derek Hill, Morris Douglas, Michael McCormick, and Mildred Baker and of the attempted first-degree murder of Amanda Merrell. Coleman v. State, 610 So.2d 1283, 1284 (Fla. 1992). The jury recommended life by a vote of six to six. Following that recommendation, the trial court overrode the jury recommendation and imposed four death sentences. Id. at 1287. On direct appeal, this Court affirmed Coleman's convictions and sentences of death. Id. at 1288. There, Coleman raised five issues.
Id. at 1284-85 (footnotes omitted).
In sentencing Coleman to death, the trial court found the existence of five aggravating circumstances. Id. at 1287.
On March 24, 1997, Coleman filed a Motion to Vacate Judgments of Conviction and Sentence with Special Request for Leave to Amend.
On April 18, 2005, Coleman filed a Motion to Relinquish Jurisdiction for a Determination of Mental Retardation. On April 21, 2005, Coleman filed a Motion to Vacate Judgment and Sentence with Request to Amend.
Coleman contends that his trial counsel, Ted Stokes, rendered ineffective assistance of counsel during the penalty phase because Stokes failed to investigate, develop, and present available mitigating evidence that would have legally precluded an override of the jury's life recommendation.
Following the United States Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:
Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986) (citations omitted). Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court's factual findings that are supported by competent, substantial evidence, but reviewing the circuit court's legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla. 2004).
There is a strong presumption that trial counsel's performance was not ineffective. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689, 104 S.Ct. 2052. The defendant carries the burden to "overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)). "Judicial scrutiny of counsel's performance must be highly deferential." Id. In Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000), this Court held that "strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct." It is under this legal framework that Coleman's claim is addressed.
Coleman argues that the postconviction court erred in finding that Stokes' performance was not deficient under Strickland. For the reasons expressed below, we agree.
Under Strickland, "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691, 104 S.Ct. 2052. This Court has held that "[a]n attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence." Rose v. State, 675 So.2d 567, 571 (Fla.1996) (quoting Porter v. Singletary, 14 F.3d 554, 557 (11th Cir.1994)); see also State v. Riechmann, 777 So.2d 342, 350 (Fla.2000). "In the past, this Court has found ineffectiveness where no attempt was made to investigate mitigation even though substantial mitigating evidence could have been presented." Rodriguez v. State, 919 So.2d 1252, 1264 (Fla.2005). To succeed on an ineffective assistance of penalty phase counsel claim, the claimant must demonstrate that counsel performed deficiently and that such deficiency prejudiced his defense. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Pursuant to Strickland, trial counsel has an obligation to conduct a reasonable investigation into mitigation. See id. at 691, 104 S.Ct. 2052; see also Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Counsel's decision to not present mitigating evidence may be a tactical decision properly within counsel's discretion. See Brown v. State, 439 So.2d 872, 875 (Fla.1983) ("The choice
539 U.S. at 521-23, 123 S.Ct. 2527 (citations omitted) (fifth alteration in original) (quoting Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052); see also Sochor, 883 So.2d 766.
In Florida, "[w]e require and encourage death penalty counsel to conduct reasonable investigations as are appropriate to ensure that he or she can properly counsel and inform a defendant with regard to the nature and extent of the mitigation that may be viable in the case." Hannon v. State, 941 So.2d 1109, 1125 (Fla.2006). Defense counsel's "particular decision not to investigate mitigation must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. (quoting Wiggins, 539 U.S. at 521-22, 123 S.Ct. 2527). In Coleman's case, despite there being a significant amount of mitigation as evidenced by the 2001 postconviction evidentiary hearing, trial counsel did not investigate or present mitigation.
At the 2001 postconviction evidentiary hearing, postconviction counsel called three witnesses to testify regarding mitigation that Stokes allegedly failed to uncover, develop, and present during the penalty phase—Marie Wims, Coleman's maternal aunt, Dolly Leverson, Coleman's mother, and Dr. Jethro Toomer. The mitigating evidence presented at Coleman's 2001 postconviction evidentiary hearing was substantial and revealed that Coleman (1) came from an impoverished background, (2) had an unstable childhood, (3) had a poor relationship with his father, (4) underwent a traumatic experience when he lost his father at a young age, (5) was traumatized by the loss of his half-brother, (6) suffered from negative experiences, such as riots and violence, at a young age, (7) has an erratic school record and history of special education placement, (8) has a long history of substance abuse from a young age, (9) was molested as a child, (10) suffered a severe head injury at the age of
Stokes also testified at the 2001 postconviction evidentiary hearing. His testimony revealed that he was appointed to represent Coleman. He admitted that he did not retain an investigator or seek a mental health evaluation on Coleman's behalf because he claimed he believed Coleman's alibi defense. Stokes pursued the alibi defense Coleman provided. Coleman, his mother, and his girlfriend testified that Coleman was in Miami at the time the murders occurred. Stokes could not remember whether the records he used to show Coleman was in Miami were actually a day off, placing Coleman in Miami on the afternoon of September 20, one day after the murders occurred.
Coleman grew up in Liberty City, which Stokes testified was "probably the most horrendous place [Stokes had] ever been." Yet, Stokes admitted that he spent more time preparing for the guilt phase than he did for the penalty phase. After the jury returned a guilty verdict, Stokes requested a continuance so he could present an expert from the University of Florida. The request was denied. The penalty phase began the next day. Stokes admitted that he never inquired into whether Coleman (1) was in special education classes; (2) abused drugs; or (3) suffered a head injury. Stokes claimed that he relied on the information he obtained from Coleman and Coleman's friends and family in developing mitigation for the penalty phase. At the 2001 postconviction evidentiary hearing, Stokes admitted that he did not spend much time on the penalty phase:
Stokes testified that he would have conducted the penalty phase differently if Mr. Coleman had admitted his guilt:
Stokes further testified that in another case he tried where innocence was not an issue, he prepared for the penalty phase by investigating the defendant's background and presenting substantial mitigation, but "[i]n this case, because he had the alibi defense, it was not like he had confessed. . . . So we really concentrated on the guilt/innocence phase more than the penalty phase." However, he also admitted that Coleman denied having the alias "Mack" or "Max," but Cassandra Pritchett later told Stokes to ask for "Mack George" because that was Coleman's nickname. Despite this revelation, Stokes testified that he was convinced Coleman was innocent and indicated he had no reason to believe he needed to pursue mitigation for the penalty phase.
In addition, Stokes testified that "he did not believe that presenting mitigating evidence of the Coleman's childhood and background or mental state would have made a difference to the Court." However, Stokes' belief was misguided. In Tedder, 322 So.2d at 910, we made clear that the focus of the test is on the reasonableness of the jury recommendation, not on the judge's determinations or personal inclinations. This Court reemphasized the focus of the test in Williams v. State, 987 So.2d 1, 11 (Fla.2008) (finding the trial court's subjective prejudice analysis was legally flawed), and in Hall v. State, 541 So.2d 1125, 1128 (Fla.1989).
During the penalty phase, Stokes attempted to show that Coleman, even if at the scene of the crime, was not a murderer because he was unable to kill Merrell. To do so, Stokes claimed that he made a strategic decision not to present mitigation that would put Coleman in a bad light or make him appear to be capable of murder. Stokes believed this strategy was successful because the jury recommended life. However, this Court has "repeatedly observed that residual doubt is not an appropriate mitigating circumstance." Darling v. State, 808 So.2d 145, 162 (Fla.2002) (citing Preston v. State, 607 So.2d 404, 411 (Fla.1992) (rejecting doubt as an appropriate mitigator); King v. State, 514 So.2d 354, 358 (Fla.1987) (same)).
The postconviction court denied Coleman's ineffective assistance claim. In its order denying relief, the postconviction court found, in pertinent part:
In the instant case, it is clear that Coleman's trial counsel failed to conduct any investigation into possible mitigation. A reasonable investigation in Coleman's case would have revealed substantial mitigation. Had Stokes performed a reasonable investigation and uncovered the abovementioned mitigation, he would have been compelled to "explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction." Rompilla v. Beard, 545 U.S. 374, 387, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (quoting 1 ABA Standards for Criminal Justice § 4-4.1 (2d ed. Supp. 1982)).
Contrary to the State's argument, it is also clear that Stokes' preparation for the penalty phase did not overlap with his preparation for the guilt phase. Although Stokes did travel to the Florida Department of Law Enforcement and to Miami to depose people in relation to the guilt phase, he did not attempt to elicit information regarding mitigation during any of the depositions. Stokes testified as to the extent of the inquiries he made to Coleman's family regarding mitigation:
The record demonstrates that Stokes spoke with Coleman's mother and girlfriend only in relation to the guilt phase alibi. At the 2001 postconviction evidentiary hearing, defense counsel asked Coleman's mother, Leverson, whether Stokes ever inquired about "all the questions that [defense counsel] asked a few minutes ago on direct exam about Michael's childhood, and all the other different things," to which Leverson responded, "No, ma'am."
The State contends that Stokes' failure to conduct an investigation was reasonable because, pursuant to his alibi defense and his maintenance of innocence, Coleman did not provide Stokes with any mitigation, and such mitigation may have been harmful to Coleman's case. It is certainly true that "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Strickland, 466 U.S. at 691, 104 S.Ct. 2052. Trial counsel's duty to investigate can be affected by the defendant's conduct, "when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." Id.; see also Rose v. State, 617 So.2d 291, 294-95 (Fla.1993) (finding trial counsel was not ineffective for failing to call family members where defendant told counsel that he had not had contact with his family for a number of years and that his family's testimony would not be helpful). However, in the instant case, the record is devoid of any indication that Stokes ever inquired about Coleman's past or possible mitigation. Admittedly, Stokes focused on the guilt phase and did not investigate any mitigation evidence. It is not clear that Coleman was even aware that his background information would be relevant or helpful to his case or that Coleman would have known what type of information to disclose to Stokes.
Moreover, in the cases cited by the State, the defendant either actively and intentionally concealed potential mitigation or ordered trial counsel not to conduct a penalty phase investigation. See Schriro v. Landrigan, 550 U.S. 465, 475, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) ("If Landrigan issued such an instruction [to "his counsel not to offer any mitigating evidence"], counsel's failure to investigate further could not have been prejudicial under Strickland."); Reed v. State, 640 So.2d 1094, 1097 (Fla.1994) ("[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.") (quoting Strickland, 466 U.S. at 691, 104 S.Ct. 2052); Bryan v. State, 748 So.2d 1003, 1007 (Fla.1999) (finding Bryan's ineffective assistance of counsel claim was properly denied because he failed to provide his counsel with the mitigating facts). In contrast to the aforementioned cases, the record in the instant case does not reflect that, at any time, Coleman actively concealed mitigating factors or that he instructed Stokes not to pursue an investigation of mitigation. Rather, Stokes' conduct likely precluded Coleman from realizing that such information might be helpful.
This Court has found ineffective assistance of counsel where trial counsel failed to conduct a reasonable investigation or failed to present mitigation absent waiver.
Coleman raised an ineffective assistance of counsel claim regarding Stokes' failure to have a mental health expert evaluate Coleman as his fifth subclaim. At the 2001 postconviction evidentiary hearing, Stokes testified that he did not seek an expert opinion regarding a possible mental or medical condition because he made the following observations that Coleman was (1) intelligent, (2) streetwise, (3) able to communicate, (4) bright, and (5) able to remember things. However, had Stokes conducted a reasonable investigation, he would have learned that Coleman suffered from various mental health issues. Even Dr. Larson, the State's expert witness during the postconviction proceedings, agreed that Coleman suffered from polysubstance abuse and that Coleman was an abused or neglected child. Dr. Larson stated, "I have no doubt that this man had a very unfortunate childhood and that he very likely had insults to his brain. He's certainly at risk for a certain amount of organicity."
In the event that Stokes had actually performed an investigation, he would have been entitled to make strategic decisions in deciding whether to present some or all of the potential mitigation. Here, the record shows that Stokes made his decision to not present any mitigating evidence prior to conducting an investigation and prior to discovering whether any worthwhile mitigation existed. Thus, Stokes was deficient in failing to investigate and uncover readily available mitigation evidence regarding Coleman. Under these circumstances, we conclude that Coleman has demonstrated that Stokes rendered deficient performance under Strickland and we find that the postconviction court erred in finding otherwise.
The postconviction court found that Coleman failed to demonstrate deficiency and thus did not conduct a prejudice analysis. Coleman now argues that he was prejudiced by Stokes' deficient performance because the presentation of mitigation would have precluded the judge from overriding the jury's recommendation of life. We agree.
This Court has repeatedly held that a defendant cannot demonstrate prejudice for counsel's failure to present mitigation to the jury, as opposed to the judge, when the jury recommended a life sentence. See Williams, 987 So.2d at 11 ("Williams acknowledges that the jury returned a life recommendation, and hence he cannot demonstrate prejudice for his counsel's decision to fail to present this evidence to the jury. We agree."); Lusk v. State, 498 So.2d 902, 905 (Fla.1986) ("[T]he jury's recommendation [of life] cannot be alleged to have been produced by counsel's ineffectiveness."); Buford v. State, 492 So.2d 355, 359 (Fla.1986) ("Appellant's contention that his trial counsel rendered ineffective assistance of counsel during the penalty phase of the trial is repudiated by the fact that the jury recommended life in this case."). However, this Court has found prejudice where trial counsel failed to present mitigating evidence to the judge and such evidence would have precluded the judge from overriding the jury recommendation. Williams, 987 So.2d at 14 (vacating Williams' death sentence after finding that trial counsel was ineffective for failing to present mitigation that would have precluded the jury override to the judge).
This Court first articulated the proper standard for determining whether a jury override is permissible in Tedder. There, we held, "A jury recommendation under our trifurcated death penalty statute should be given great weight. In order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ." 322 So.2d at 910. The "reasonable basis" analysis must focus on finding support for the jury's recommendation and does not demand that the judge agree with the jury's conclusion. Weaver v. State, 894 So.2d 178, 197 (Fla. 2004).
Thus, this issue turns on whether the mitigating evidence that was presented at the 2001 postconviction evidentiary hearing would have provided a reasonable basis for the jury's recommendation of life. Here, Coleman must show that counsel failed to present evidence which would support a life sentence and constitute "a reasonable basis in the record to support the jury's [life] recommendation." Stevens v. State, 552 So.2d 1082, 1085 (Fla.1989); see Ramirez v. State, 810 So.2d 836 (Fla. 2001).
At the 2001 postconviction evidentiary hearing, Coleman presented substantial mitigation that revealed that Coleman (1) came from an impoverished background; (2) had an unstable childhood; (3) had a poor relationship with his father; (4) was traumatized by the loss his father at a young age; (5) was traumatized by the loss of his half-brother; (6) suffered from negative experiences, such as riots and violence, at a young age; (7) has an erratic school record and history of special education placement; (8) has a long history of substance abuse; (9) was molested as a child; (10) received a severe head injury at the age of eighteen; and (11) suffers from mental health and illness deficiencies. This Court has repeatedly recognized the importance and significance of this kind of mitigation. See Williams, 987 So.2d at 14; Torres-Arboleda v. Dugger, 636 So.2d 1321
It takes more than a difference of opinion as to the validity and weight of the evidence presented in aggravation and mitigation to justify a jury override. Holsworth v. State, 522 So.2d 348 (Fla. 1988). In determining whether to override a jury's recommendation of a life sentence, the mitigation evidence should be viewed in the light most favorable to the defendant. The trial court must then consider whether the mitigation evidence could serve as a reasonable basis for a life recommendation. Weaver, 894 So.2d at 197. Here, if Stokes had properly presented the aforementioned mitigating evidence, the trial judge would have had to view it in light most favorable to the defendant and would have been precluded from overriding the jury. Stokes' failure to investigate and present the mitigation evidence deprived Coleman of a reliable penalty phase proceeding, Asay, 769 So.2d at 985, and "so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined." Maxwell, 490 So.2d at 932.
Stokes' failure to present this evidence below, and thereby ensure its presence in the record, also precluded this Court from being able to make a fully informed decision regarding the disposition of this case on direct appeal. "Under our caselaw, it is the existence of such evidence of mitigation in the record that operates to provide a basis for a life recommendation and, hence, preclude a trial judge's override of the jury's decision." Williams, 987 So.2d at 14. On direct appeal, we upheld the jury override because "the potential mitigating evidence presented in the instant case is of little weight and provides no basis for the jury's recommendation." Coleman, 610 So.2d at 1287. This Court explained, "We reach this conclusion, even though we have struck one of the aggravators found by the trial court, because there is no reasonable likelihood that the trial court would conclude that the mitigating evidence outweighed the four remaining aggravators." Id. However, the dissent disagreed, stating, "I do not believe that the jury recommendation of life imprisonment should be disregarded. Based on the circumstances of the killings, as well as the evidence of nonstatutory mitigation, I cannot say that no reasonable person could have recommended a life sentence here." Id. at 1288 (Barkett, C.J., concurring in part and dissenting in part). Thus, it is clear that Stokes' failure to investigate, develop, and present the mitigation evidence not only undermined confidence in the outcome of the trial proceedings, but also precluded this Court from making a proper disposition of the case on direct appeal.
The only remaining issue at this point is whether we should remand this case to the trial court for resentencing before the judge or before a newly empanelled jury, or whether we should remand this case to the trial court for imposition of life sentences
We again emphasize that the proper standard in a jury override case is as follows: the trial court is precluded from overriding the jury's life recommendation unless the court can state that "the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ." Tedder, 322 So.2d at 910. To demonstrate ineffective assistance of counsel in an appeal from a denial of postconviction relief, the defendant must establish that counsel's performance was deficient and must also establish prejudice. To establish prejudice in a jury override case, this Court has explained: "The proper standard is whether a jury recommending life imprisonment would have a reasonable basis for that recommendation. If so, the trial judge could not override the jury's recommendation." Williams, 987 So.2d at 11 (quoting Hall, 541 So.2d at 1128).
Because it is this Court that makes the ultimate determination under Tedder regarding whether there is a reasonable basis for the jury's life recommendation, we conclude that a new sentencing proceeding before a trial court is unnecessary in postconviction jury override cases, just as it is unnecessary in direct appeal jury override cases.
In the present case, we affirm the postconviction court's denial of rule 3.850 relief with respect to the first-degree murder convictions, but we reverse the court's denial of relief with respect to the death sentences. We vacate Coleman's death sentences and remand for imposition of a life sentence on each of the first-degree murder counts. The trial court, in its discretion, may impose the sentences concurrently or consecutively. See Williams, 987 So.2d at 16 ("Nothing in this decision should be construed to prohibit the trial court from considering the imposition of consecutive sentences for the various crimes and convictions involved."). We decline to address Coleman's other penalty phase claims. We further find that Coleman's non-penalty phase claims are without merit, as are his habeas claims. We deny the petition for writ of habeas corpus.
It is so ordered.
CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.
