PER CURIAM.
Labrant Dennis appeals the denial of his motion to vacate his convictions of first-degree murder and sentences of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus.
The facts of this case were fully set out in this Court's opinion on direct appeal. Dennis v. State, 817 So.2d 741 (Fla.2002). Briefly, "[o]n the morning of April 13, 1996, University of Miami football player Earl Little arrived at his on-campus apartment." Id. at 744. When Little opened his apartment door, he discovered his roommate and teammate, Marlin Barnes, on the floor leaning against the door. Id. Marlin was badly beaten and bloody, but still breathing. Id. at 744-45. The police later found Timwanika Lumpkins also beaten, but still breathing, in a bedroom. Id. at 745. Barnes was pronounced dead at the scene, and Lumpkins was later pronounced dead at the hospital. Id. According to the medical examiner, both Barnes and Lumpkins died from massive head trauma, and both had defensive wounds to their hands. Id. at 749-50.
In the living room where Barnes was discovered, the police found wooden and metal fragments, which were later determined to be from a shotgun. Id. at 745, 749. Joseph Stewart, an acquaintance of Dennis, testified that, on April 7, he had loaned Dennis an old sawed-off shotgun, which had a wood-type grill. Id. at 747. After Dennis returned the gun to Stewart, Stewart noticed that the gun had been considerably damaged. Id. Stewart also discovered a knife and black clothing in the duffel bag containing the gun. The police recovered the shotgun and knife from the sewer drain where Stewart had disposed of them. Id. at 748. Barnes' and Lumpkins' wounds were consistent with having been inflicted by this shotgun. Id. at 750.
The evidence presented at trial revealed that Dennis, Lumpkins, and Barnes had been at the same club earlier that night. Id. at 746. Barnes drove to the bar in his roommate's Ford Explorer. Id. at 748. However, after discovering that the tires had been punctured, Barnes had the truck towed back to his apartment. Id. A gas station attendant testified that someone generally matching Dennis' description was parked at the station, which was across from where the Explorer had been parked. Id. at 746-47. The gas station attendant identified Dennis' girlfriend's car as the car in which the person matching Dennis' description waited. Id. at 747. And the knife retrieved from the sewer drain was "consistent with the puncture marks on the tires of the Explorer." Id. at 749.
The jury found Dennis guilty of two counts of first-degree murder, one count of burglary with assault or battery while armed, and one count of criminal mischief. Id. at 748, 750. At the penalty phase, Dennis' mother and grandmothers testified regarding his positive relationships with his family and his children. Id. at 750. Following the penalty phase, the jury recommended death sentences for both murders by a vote of eleven to one. Id. The trial court followed the jury's recommendation, finding that the aggravating circumstances
In November 2003, Dennis filed a motion for postconviction relief. And on October 7, 2004, the trial judge entered an order denying all of Dennis' claims. However, this order did not include any reasoning or findings of fact. Then, on November 15, 2004, the trial court issued an amended order. The amended order did not include findings of fact for all of Dennis' claims. On appeal, this Court remanded to the trial court for a new proceeding on Dennis' postconviction motion and dismissed his habeas petition without prejudice. Dennis v. State, 999 So.2d 644 (Fla. 2008) (table).
Upon remand, the new trial judge allowed Dennis to file an amendment to his postconviction motion, an amendment which included two new claims. A Huff
On appeal, this Court remanded the case for the trial court to hold an evidentiary hearing on two claims. Specifically, this Court ordered the trial court to conduct an evidentiary hearing on Dennis' claims that (a) counsel was ineffective for failing to investigate and present further mitigation evidence at the penalty phase; and (b) the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose the assistant state attorney's memo to Dr. Rao, the medical examiner who testified during the penalty phase. After holding an evidentiary hearing, the trial court denied the claims.
Dennis appeals the trial court's denial of postconviction relief and also petitions this Court for a writ of habeas corpus.
Dennis argues that his trial counsel provided ineffective assistance during the guilt phase for: (1) waiving his right to a speedy trial; (2) failing to adequately prepare for trial; (3) failing to object to improper opinions and bolstering; (4) failing to object to irrelevant and prejudicial evidence; (5) failing to object to improper comment on Dennis' right to remain silent; (6) failing to investigate other suspects; and (7) failing to hire a crime scene expert. Because Dennis has failed to establish the requirements necessary for relief, we affirm the trial court's denial.
After the United State Supreme Court's decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), this Court explained that for ineffective assistance of counsel claims to be successful, two prongs must be satisfied:
Bolin v. State, 41 So.3d 151, 155 (Fla.2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986)).
Regarding the deficiency prong of Strickland, there is a strong presumption that trial counsel's performance was not ineffective. Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Moreover, "[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. Further, counsel cannot be deemed ineffective for failing to make a meritless argument. Schoenwetter v. State, 46 So.3d 535, 546 (Fla.2010). Regarding the prejudice prong of Strickland, "the defendant must show that there is a reasonable probability that, `absent the [deficient performance], the factfinder would have [had] a reasonable doubt respecting guilt.'" Henry v. State, 948 So.2d 609, 617 (Fla.2006) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052). "A reasonable probability is a `probability sufficient to undermine confidence in the outcome.'" Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).
An evidentiary hearing must be held on an initial 3.851 motion whenever the movant makes a facially sufficient claim that requires a factual determination. See Amendments to Fla. Rules of Crim. Pro. 3.851, 3.852 & 3.993, 772 So.2d 488, 491 n. 2 (Fla.2000). Thus, "[a] hearing is warranted on an ineffective assistance of counsel claim only where a defendant alleges specific facts, not conclusively refuted by the record, which demonstrate a deficiency in the performance that prejudiced the defendant." Ragsdale v. State, 720 So.2d 203, 207 (Fla.1998). "A summary or conclusory allegation is insufficient to allow the trial court to examine the specific allegations against the record." Id.
Because both prongs of Strickland present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the trial court's factual findings that are supported by competent, substantial evidence, but reviewing the trial court's legal conclusions de novo. See Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004). Additionally, because a court's
First, Dennis claims that trial counsel was ineffective for agreeing to an early trial date or for agreeing to a defense continuance, thereby waiving Dennis' right to a speedy trial. We uphold the trial court's summary denial of this claim.
Dennis did not sufficiently allege either deficiency or prejudice. Specifically, given that Dennis did not allege that trial counsel could have been prepared for this capital trial involving two victims by the initial trial date or within the speedy trial period, Dennis did not sufficiently allege that trial counsel's decisions were outside the range of reasonable professional performance. Moreover, Dennis did not include any allegations regarding how he was prejudiced by trial counsel's decisions. He vaguely implied that there was prejudice because a continuance was not charged to the State (and Dennis was not released) as a result of the State's failure to provide a copy of a police report that was not in existence during the speedy trial period. However, before a defendant may have a continuance charged to the State based upon a discovery violation, the defendant must demonstrate that the discovery violation prejudiced his ability to prepare for trial in a manner that could not be corrected within the speedy trial period. State v. Guzman, 697 So.2d 1263, 1264 (Fla. 3d DCA 1997). Here, Dennis did not allege that, but for the lack of access to this police report, Dennis could have been prepared for trial within the speedy trial period.
Accordingly, Dennis is not entitled to relief on this claim.
Next, Dennis argues that trial counsel was ineffective for failing to secure a second chair and for representing other clients while representing Dennis. However, this claim is facially insufficient as Dennis failed to include any allegations regarding the prejudice prong of Strickland. Dennis generally claimed that trial counsel failed to adequately prepare for Dennis' trial. But he did not include any allegation that there is a reasonable probability that, but for trial counsel's failure to secure a second chair and his failure to represent only Dennis, the result of Dennis' trial would have been different or that confidence in the outcome is undermined. See Ragsdale, 720 So.2d at 208 (finding that trial judge properly denied evidentiary hearing where defendant provided insufficient facts as to "how the outcome would have been different had counsel acted otherwise"). Moreover, the record reflects that it was Dennis' desire that Guralnick be his sole attorney at both phases of the trial. And counsel is not ineffective for following his client's wishes. See Cole v. State, 841 So.2d 409, 426 (Fla.2003) (holding that counsel is not ineffective for following his client's wish to not call his mother to testify).
Accordingly, we affirm the trial court's summary denial of this claim.
Dennis argues that trial counsel was ineffective for failing to object to several witnesses' testimony that allegedly bolstered the testimony of other witnesses and that allegedly included improper opinions. With respect to Joseph Stewart's testimony, Dennis contends that trial counsel
First, this claim is facially insufficient because Dennis' postconviction motion did not allege prejudice. See Lott v. State, 931 So.2d 807, 816 (Fla.2006) ("[W]e have repeatedly held that `conclusory allegations are insufficient to warrant relief' on an ineffective assistance claim.") (quoting Wright v. State, 857 So.2d 861, 877 (Fla.2003)).
Second, Dennis' improper bolstering claim can be conclusively refuted by the record. For example, as the State accurately notes, the record demonstrates that the State was anticipatorily rehabilitating Stewart when asking him whether he had been afraid he was going to be arrested and whether he "had been told that there is anything at this point that you could be arrested for." Anticipatory rehabilitation is an acceptable practice in Florida. See Lawhorne v. State, 500 So.2d 519, 520 (Fla.1986). Additionally, trial counsel is not ineffective for failing to object to Detective Sanchez's testimony regarding the gas station attendant's identification of the car because trial counsel did, in fact, object repeatedly.
Further, Dennis' claim that Detective Romagni's testimony improperly bolstered other witnesses' testimony is procedurally barred because it was raised and rejected on direct appeal. See Arbelaez v. State, 775 So.2d 909, 915 (Fla.2000) ("[Defendant] may not relitigate procedurally barred claims by couching them in terms of ineffective assistance of counsel."). Specifically, this Court determined on direct appeal that trial counsel's cross-examination of Romagni opened the door to Romagni's testimony on redirect regarding Stewart, the investigation, and Romagni's conversations with other witnesses. Dennis, 817 So.2d at 752-53. Also, this Court concluded that even if there was error, any such error was harmless because "every point mentioned in Romagni's testimony on redirect was properly admitted into evidence through the testimony of other witnesses." Id. at 753.
Based solely upon the record, Dennis' claim regarding Detective Charles' testimony is also without merit. For instance, Charles' testimony about the punctures in Little's tires is simply a description of his observations of the evidence he had processed as a crime scene investigator. Thus, trial counsel was not ineffective for failing to object on this meritless basis. Trial counsel was also not ineffective for failing to raise a meritless objection to Charles' allegedly improper expert and improper bolstering testimony about blood spatter. Charles testified that he had been trained in blood spatter analysis, and the trial court eventually ruled that Charles was an expert in blood spatter analysis.
In light of the above, we affirm the denial of this claim.
Dennis contends that trial counsel was ineffective for failing to object to testimony regarding a gun purchase, testimony regarding a cloned cell phone, and various statements during Detective Poitier's testimony. However, we uphold the denial of this claim.
Like the above guilt phase claims of ineffectiveness, this claim is facially insufficient because Dennis' postconviction motion did not allege prejudice. He did not explain how there is a reasonable probability that the outcome would have been different had trial counsel objected to this testimony. He did not explain how the
With regard to Watisha Wallace's allegedly irrelevant and prejudicial testimony that she and Dennis purchased a gun in her name for Dennis, the record refutes that there was any prejudice. On cross-examination, trial counsel elicited testimony from Wallace explaining that the gun was later transferred into Dennis' name. Moreover, during closing argument, trial counsel argued that Dennis would not have needed to borrow the shotgun used in the crimes since Dennis owned a gun.
Additionally, Dennis' subclaim that trial counsel was ineffective for not objecting to the cloned cell phone testimony is without merit. While the testimony implied that Dennis had illegally used a cloned cell phone, the record demonstrates that this testimony was relevant to the State's case. The State's case included presenting evidence that Dennis made a call to a friend and, during that call, he admitted information about the murders that was not generally available. Moreover, the State's case included evidence that Dennis had made particular phone calls to Stewart from his cell phone. Thus, this cell phone testimony was admissible. See Bryan v. State, 533 So.2d 744, 747 (Fla.1988) (evidence that defendant committed robbery using the murder weapon admissible to demonstrate that defendant possessed the murder weapon). And counsel cannot be ineffective for failing to raise a meritless objection.
Furthermore, most of Dennis' subclaim regarding Detective Poitier's testimony was addressed on direct appeal and is therefore procedurally barred. See Jones v. State, 949 So.2d 1021, 1033 (Fla. 2006) ("Jones' allegation of ineffective assistance of counsel is merely a variant of the issues raised on direct appeal and is therefore procedurally barred."). During his direct appeal, Dennis argued that the State was permitted to elicit, over a defense hearsay objection, Poitier's testimony that he had concluded Dennis committed the crimes because of his history of domestic abuse of the victim and because of Dennis' interview with Romagni. Dennis, 817 So.2d at 753-54. He argued that this constituted inadmissible hearsay and an impermissible opinion as to Dennis' guilt. Id. at 754. This Court held that Poitier's testimony regarding Romagni's interview and the domestic abuse history was harmless "as everything the detective referred to on redirect was testified in detail by other witnesses." Id. Moreover, this Court held that Poitier's testimony regarding Dennis' guilt did not reach the level of fundamental error. Id. The only thing not raised on direct appeal in regard to Poitier's testimony was Poitier's identification of the sexual assault kit. While the sexual assault kit was irrelevant to proving the State's case as Dennis was never accused of raping Lumpkins, it does demonstrate that the State conducted a thorough investigation, including investigating the possibility of a rape motive. And, as Dennis acknowledged in his postconviction motion, "[a]ccording to the defense, this was a case of negligent investigation." Thus, this testimony was relevant because Dennis challenged the completeness of the police investigation, and trial counsel cannot be rendered ineffective for failing to raise a meritless issue.
Accordingly, we affirm the trial court's summary denial of this subclaim.
Dennis contends that trial counsel was ineffective for failing to object to Romagni's testimony that allegedly commented
During cross-examination, trial counsel elicited testimony from Romagni tending to indicate that Dennis was completely cooperative with police. On redirect, the State attempted to demonstrate that Dennis was not entirely cooperative. Therefore, Romagni's testimony regarding his inability to interview Dennis for a second time was relevant to Dennis' lack of complete cooperation with police. Accordingly, trial counsel was not ineffective for failing to raise what would have been a meritless objection. See Melendez v. State, 612 So.2d 1366, 1369 (Fla.1992), receded from on other grounds by Deren v. State, 985 So.2d 1087, 1088 (Fla.2008).
Dennis contends that trial counsel was ineffective for failing to investigate other suspects, particularly Lumpkins' other sexual partners, whom she referenced in her daily planner. We affirm the denial of this claim.
Like Dennis' other ineffectiveness claims, this claim is facially insufficient. Dennis did not specifically allege what information an investigation would have revealed and what information could have been presented at trial. See Nelson v. State, 875 So.2d 579, 583 (Fla.2004) ("Under the circumstances of this case, a defendant would be required to allege what testimony defense counsel could have elicited from witnesses and how defense counsel's failure to call, interview, or present the witnesses who would have so testified prejudiced the case."). He also did not allege that there is a reasonable probability that the outcome of the trial would have been different had counsel investigated Lumpkins' boyfriends and had counsel presented any evidence revealed by the investigation to the jury. He did not allege that the confidence in the outcome is undermined due to trial counsel's failure to investigate other suspects.
Further, the record demonstrates that trial counsel did present the arguments that Dennis now contends were inadequately presented due to trial counsel's failure to investigate other suspects. During the guilt phase, trial counsel argued that Lumpkins had other boyfriends, that Dennis had not been bothered by these other boyfriends, and that these other boyfriends might have had a motive to kill her. Specifically, trial counsel raised this issue during open arguments and during the cross-examination of Romagni. Therefore, as the trial court's order pointed out when denying this claim, "since counsel did present this information, he was not ineffective for failing to do so."
Accordingly, we affirm the summary denial of this claim.
Dennis argues that trial counsel was ineffective for failing to present the testimony of a crime scene expert. We affirm the denial of this claim.
As the trial court explained in its order denying relief, Dennis "fail[ed] to allege what experts should have been hired, what these experts would have testified about and how this failure prejudiced the Defendant." See Ragsdale, 720 So.2d at 207 (explaining that conclusory allegations are insufficient to state a claim for postconviction relief). Instead, Dennis argued that evidence that this crime could not have been committed by one person and that the assailants would not have been able to leave the scene without some blood on their persons is the type of evidence that would have supported Dennis' defense that he did not commit the crime. However, on cross-examination of State witnesses, trial
Consequently, we affirm the denial of relief.
Dennis contends that trial counsel was ineffective for failing to investigate and present further mitigation evidence at the penalty phase. The United States Supreme Court has stated the following with regard to claims of ineffective assistance of counsel for failing to investigate and present mitigation evidence at the penalty phase:
Cummings-El v. State, 863 So.2d 246, 250-51 (Fla.2003) (quoting Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (emphasis and citations omitted)).
Additionally, the defendant bears the burden of demonstrating that he was prejudiced by trial counsel's failure to investigate and present mitigation. See id. at 253. The defendant "must show that but for his counsel's deficiency, there is a reasonable probability he would have received a different sentence. To assess that probability, we consider `the totality of the available mitigation evidence — both that adduced at trial, and the evidence adduced in the [postconviction] proceeding' — and `reweig[h] it against the evidence in aggravation.'" Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 453-54, 175 L.Ed.2d 398 (2009) (quoting Williams v. Taylor, 529 U.S. 362, 397-98, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). "A reasonable probability is a `probability sufficient to undermine confidence in the outcome.'" Henry v. State, 948 So.2d 609, 617 (Fla.2006) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).
Dennis did not meet his burden of demonstrating prejudice. During the evidentiary hearing after the second remand, Dennis presented evidence of an upbringing in poor and violent neighborhoods primarily with two different grandmothers as well as expert testimony establishing that this upbringing would have left him feeling isolated, abandoned, and desensitized to violence. However, the testimony also demonstrated that the family that raised him loved him and did not abuse him. Furthermore, while there was conflicting mental health evidence that he suffered from post-traumatic stress disorder, even the evidence supporting the presence of this disorder demonstrated that the disorder was mild and in partial remission. Thus, considering the evidence presented during the evidentiary hearing as well as the evidence presented during the penalty phase, the mitigating circumstances would not have outweighed the four aggravating circumstances present in this case, namely HAC, CCP, during the course of a burglary, and conviction of a capital felony. See Porter, 130 S.Ct. at 453-54; Breedlove v.
Accordingly, this Court affirms the denial of relief.
Dennis contends that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose the assistant state attorney's memo to Dr. Rao, which Dennis alleges improperly coached the medical examiner's penalty phase testimony. We affirm the trial court's denial of this claim.
Brady requires the State to disclose material information within its possession or control that is favorable to the defense. Mordenti v. State, 894 So.2d 161, 168 (Fla.2004). To establish a Brady violation, the defendant has the burden to show (1) that favorable evidence, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also Way v. State, 760 So.2d 903, 910 (Fla.2000); Cardona v. State, 826 So.2d 968, 973 (Fla.2002). To meet the materiality prong, the defendant must demonstrate a reasonable probability that had the suppressed evidence been disclosed the jury would have reached a different verdict. Strickler, 527 U.S. at 289, 119 S.Ct. 1936. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Way, 760 So.2d at 913; see also Strickler, 527 U.S. at 290, 119 S.Ct. 1936.
When reviewing Brady claims, this Court gives deference to the trial court on findings of facts and reviews de novo the application of law and independently reviews the cumulative effect of the suppressed evidence. See Mordenti, 894 So.2d at 169-70; Way, 760 So.2d at 913.
Here, Dennis' argument regarding prejudice centers upon the possibility of using the memo to impeach Dr. Rao's penalty phase testimony, which Dennis argues was improperly inflammatory and coached in support of the HAC aggravator. However, other evidence supporting HAC would not have been affected by this impeachment. For instance, it is undisputed that both victims in this case died as a result of brutal beatings and that both sustained defensive wounds. Dr. Gulino testified to those facts. Dr. Gulino also testified that the victims remained conscious and possibly heard the attacks on each other. Earl Little testified that Barnes was alive when Little entered the apartment. Furthermore, a police officer testified that Lumpkins was alive when he arrived at the apartment.
In fact, on direct appeal, this Court upheld the trial court's finding of the HAC aggravator based upon Dr. Gulino's and Toby Wolson's guilt phase testimony, not Dr. Rao's penalty phase testimony. Specifically, this Court stated:
Dennis, 817 So.2d at 766. Similarly, when this Court upheld the CCP aggravator, it did not do so based upon Dr. Rao's testimony during the penalty phase. See id. at 766 ("There is substantial evidence in the record supporting the trial court's finding of the CCP aggravator. In addition to the record evidence recited in the trial court's sentencing order, Stewart testified that Dennis told him, `Don't worry about it. Nobody would think to come here. I just had to do what I had to do and I didn't even go in my car.'"). Confidence in the outcome of the penalty phase is not undermined. As a result, Dennis cannot demonstrate the materiality prong of Brady.
Accordingly, we affirm the denial of relief.
In this claim, Dennis asserts that trial counsel was operating under an actual conflict of interest due to trial counsel's workload and that conflict adversely affected his representation of Dennis. This Court affirms the trial court's summary denial of this claim.
In Quince v. State, 732 So.2d 1059, 1064 (Fla.1999), this Court explained the following regarding conflict of interest claims:
Accordingly, a defendant is required to allege that trial counsel "`actively represented conflicting interests' and that `an actual conflict of interest adversely affected his lawyer's performance.'" Quince, 732 So.2d at 1064 (quoting Strickland, 466 U.S. at 692, 104 S.Ct. 2052 (quoting Cuyler, 446 U.S. at 350, 348, 100 S.Ct. 1708)). And this Court has explained:
Here, instead of identifying anything specific in the record suggesting that his interests were compromised by an actual conflict, Dennis alleges that trial counsel's "work load" related to his other clients, including clients involved in other high profile cases, adversely affected his representation. This allegation of a conflict is overly speculative and hypothetical. Dennis failed to allege that counsel actively represented conflicting interests, and we affirm the denial of relief.
Dennis next contends that he is entitled to relief because of the State's allegedly improper voir dire, improper examination of witnesses, and improper comments throughout the trial. The trial court summarily denied this claim, concluding that portions of it were raised or should have been raised on direct appeal, that the voir dire questions were appropriate, and that wide latitude is permitted during closing arguments.
We affirm the trial court's denial because this claim is procedurally barred. Dennis' claims regarding improper voir dire, improper comments during closing arguments, and improper examination of witnesses should have been raised on direct appeal. See Robinson v. State, 707 So.2d 688, 697-99 (Fla.1998). And Dennis' specific argument about the evidence of abuse and violence between Lumpkins and Dennis is procedurally barred because the issue was decided on direct appeal. Specifically, this Court determined that this evidence was admissible because "[a]lthough certainly prejudicial, the evidence of the nature of Dennis's relationship with the victim was relevant to establish Dennis's motive."' Dennis, 817 So.2d at 762. To any extent that Dennis may now be claiming that trial counsel was ineffective for failing to object to the State's conduct, the claim is facially insufficient as Dennis' postconviction motion contains only conclusory allegations regarding ineffectiveness. See Gordon v. State, 863 So.2d 1215, 1218 (Fla.2003) ("A defendant may not simply file a motion for postconviction relief containing conclusory allegations that his or her trial counsel was ineffective and then expect to receive an evidentiary hearing." (quoting Kennedy v. State, 547 So.2d 912, 913 (Fla.1989))). Therefore, the trial court's summary denial of this claim was proper.
Dennis further claims that Florida Bar Rule of Professional Conduct 4-3.5(d)(4) is unconstitutional and that an individual should be appointed to assist him in interviewing jurors to establish juror bias. However, this claim is procedurally barred as it should have been raised on direct appeal. See Israel v. State, 985 So.2d 510, 522 (Fla.2008) (concluding that juror interview claim was procedurally barred because it was not raised on direct appeal). Moreover, "this Court has consistently rejected constitutional challenges to rule 4-3.5(d)(4)." Id. at 522-23 (citing Barnhill v. State, 971 So.2d 106, 117 (Fla. 2007); Power v. State, 886 So.2d 952, 957 (Fla.2004); Johnson v. State, 804 So.2d 1218 (Fla.2001)). Accordingly, this Court affirms the denial of this claim.
Dennis argues that the trial court erred in denying several of his requests for additional public records. In reviewing a trial court's denial of public records requests, this Court applies an abuse of discretion standard. Hill v. State, 921 So.2d 579, 584 (Fla.2006).
Fla. R.Crim. P. 3.852(g)(3).
First, the trial court did not abuse its discretion in denying Dennis' request to the Miami-Dade Police Department for "any and all documentation" regarding Criminalists Quirk's and Wolson's past casework. These particular criminalists had worked for the department for decades. In that time, they had participated in countless cases. Thus, this request for all documentation related to their past casework was unduly burdensome. Moreover, this request appears to have been a fishing expedition, and "this Court has held that the production of public records is not intended to be a `procedure authorizing a fishing expedition for records unrelated to a colorable claim for postconviction relief.'" Diaz v. State, 945 So.2d 1136, 1150 (Fla.2006) (quoting Sims v. State, 753 So.2d 66, 70 (Fla.2000)).
Second, the trial court did not abuse its discretion in denying Dennis' request for the personnel file of Assistant State Attorney Flora Seff. During the hearing on this request, Dennis stated that he sought the file in order to discover any documents related to the original trial judge's recusal in this case due to an ex parte conversation with Michael Von Zamft, another state attorney. This request was simply an improper fishing expedition.
Third, the trial court did not abuse its discretion in denying the request for the personnel records of all fourteen officers of the Coral Gables Police Department that documented their presence at the crime scene. The trial court ordered the production of the personnel files of those officers who had substantive roles at the crime scene. Dennis' request for the other officers' files was nothing more than a fishing expedition. Additionally, it is unlikely that any complaints of misconduct in the other officers' personnel files would have been helpful to Dennis' case because nothing at the crime scene directly implicated Dennis.
Fourth, relief is not warranted on Dennis' subclaim involving his requests to the Departments of Corrections and Health. Dennis appears to be arguing that he was entitled to be present during the trial court's in camera review and that he was entitled to a more detailed order so that he could object to any claimed exemptions (or any claims of confidential materials) with which he disagreed. However, the record demonstrates that Dennis was
Finally, the trial judge did not abuse its discretion in denying Dennis' request to various agencies for records regarding Florida's lethal injection protocol. In Tompkins v. State, 994 So.2d 1072, 1090 (Fla.2008), this Court denied relief on the defendant's claim "that the trial court erred in summarily denying his claim that he was deprived of his rights under chapter 119, Florida Statutes, and Florida Rule of Criminal Procedure 3.852, when the trial court granted the objections of FDLE and DOC to his public records requests." This Court concluded that the records requested were neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Tompkins, 994 So.2d at 1090; see also Walton v. State, 3 So.3d 1000, 1013-14 (Fla.2009). This Court explained that it "has repeatedly upheld summary denial of challenges to Florida's lethal injection procedure." Tompkins, 994 So.2d at 1090 (citing Power, 992 So.2d at 223; Sexton v. State, 997 So.2d 1073, 1089 (Fla.2008); Henyard v. State, 992 So.2d 120, 132 (Fla.2008)).
Therefore, the trial court did not abuse its discretion in denying Dennis' requests for additional public records.
In an amendment to his postconviction motion upon this Court's first remand, Dennis asserts that his convictions and sentences are unreliable due to newly discovered evidence that the forensic science used to convict and sentence him was neither reliable nor valid. His claim is based upon a 2009 report by the National Academy of Sciences regarding the field of forensic science.
Dennis argues that he is entitled to an evidentiary hearing on his claims that Florida's lethal injection statute and procedure are unconstitutional. However, this Court has repeatedly affirmed summary denials of constitutional challenges to Florida's lethal injection protocol. See Tompkins, 994 So.2d at 1080-82; Power, 992 So.2d 218; Henyard, 992 So.2d at 131-32; see also Valle v. State, 70 So.3d 530, 546 (Fla.2011), cert. denied, ___ U.S. ___, 132 S.Ct. 1, 180 L.Ed.2d 940 (2011); Lightbourne v. McCollum, 969 So.2d 326, 353 (Fla.2007); Schwab v. State, 969 So.2d 318, 325 (Fla.2007). Therefore, we affirm the summary denial of Dennis' lethal injection claims.
Dennis' claim that there is insufficient evidence to support his convictions for first-degree murder is procedurally barred as this Court decided the issue on direct appeal. Specifically, this Court stated, "Lastly, although not raised by Dennis, we have independently reviewed the evidence and find it sufficient to support the convictions." Dennis, 817 So.2d at 767. Accordingly, the trial court's summary denial of this claim was proper.
In his habeas petition, Dennis argues that his appellate counsel on direct appeal provided ineffective assistance by failing to raise claims regarding allegedly inflammatory and improper testimony. However, Dennis is not entitled to relief.
Claims of ineffective assistance of appellate counsel are appropriately presented in a petition for a writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Consistent with the Strickland standard, to grant habeas relief based on ineffectiveness of appellate counsel, this Court must determine:
Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986); see also Freeman, 761 So.2d at 1069; Thompson v. State, 759 So.2d 650, 660-61 (Fla.2000).
"If a legal issue `would in all probability have been found to be without merit' had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel's performance ineffective." Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000) (quoting Williamson v. Dugger, 651 So.2d 84, 86 (Fla. 1994)). "In fact, appellate counsel is not necessarily ineffective for failing to raise a claim that might have had some possibility of success; effective appellate counsel need not raise every conceivable nonfrivolous issue." Valle v. Moore, 837 So.2d 905, 908 (Fla. 2002) (citing Jones v. Barnes, 463 U.S. 745, 751-53, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); Provenzano v. Dugger, 561 So.2d 541, 549 (Fla.1990)).
The first portion of Dennis' claim concerns testimony that trial counsel objected to, namely testimony from Lumpkins' aunt regarding Dennis having a gun, testimony from Detective Hudak regarding the reactions of Barnes' teammates to the murders, and testimony from Dr. Gulino regarding smeared blood near the door demonstrating that Barnes was blinded and reaching for the door. "With regard to evidentiary objections which trial counsel made during the trial and which appellate counsel did not raise on direct appeal, this Court evaluates the prejudice or second prong of the Strickland test first." Valle, 837 So.2d at 910 (quoting Jones v. Moore, 794 So.2d 579, 583 (Fla.2001)).
Here, even if the admission of this testimony was erroneous, Dennis cannot demonstrate prejudice because any error was harmless. See id. ("If that error was harmless, the petitioner ... would not have been prejudiced." (quoting Jones, 794 So.2d at 584)). The State's blood pattern expert testified "that the pooling and smearing of blood near the front door of the apartment and other nearby patterns were consistent with Barnes struggling and flailing about." Dennis, 817 So.2d at 749. Furthermore, multiple witnesses testified that Dennis possessed a gun. In fact, Stewart testified that he had loaned Dennis a sawed-off shotgun, a gun that was consistent with having been used to inflict the victims' wounds. Stewart, who led the police to the gun, testified that the gun was damaged when Dennis returned it. And the State's expert "testified that the metal fragments recovered from Barnes' apartment conclusively matched the trigger guard of the recovered shotgun."
The next portion of Dennis' ineffectiveness of appellate counsel claim relates to allegedly improper testimony that trial counsel did not object to, namely a paramedic's testimony that the crime scene was bloody, a detective's testimony that the skull of one of the victims was "mushy," Dr. Gulino's testimony that the victim's head injuries were consistent with being hit with the blunt side of the shotgun, and Coach Shannon's testimony that he called Ray Lewis in Lakeland the morning of the murders.
We conclude that this portion of Dennis claim does not rise to the level of fundamental error. Several witnesses testified that the crime scene was bloody, including the States blood pattern expert. See Dennis, 817 So.2d at 749. Moreover, Dr. Gulino, the medical examiner, properly testified about the gruesome injuries to the victims head. See id. at 749-50. Furthermore, the trial court did not abuse its discretion in allowing Dr. Gulino to testify about the consistency between the wounds and the shotgun. See Cox v. State, 966 So.2d 337, 352-54 (Fla.2007). Even if this had been an abuse of discretion, it would not be fundamental error because, as this Court explained on direct appeal, "the State introduced several composite pictures comparing the victims wounds with the shotgun that made it readily apparent that the victims were struck with such force that their skin retained what amounted to the shotguns `fingerprints.'" Dennis, 817 So.2d at 750.
Accordingly, this Court denies relief on this claim.
Dennis claims that appellate counsel was ineffective for failing to claim fundamental error based upon alleged juror misconduct and alleged judicial bias. However, no relief is warranted.
Dennis has not pointed to anything in the record that indicates that potentially prejudicial juror misconduct occurred. See Morris v. State, 811 So.2d 661, 667 (Fla.2002) ("[P]otentially harmful misconduct is presumptively prejudicial, but the defendant has the initial burden of establishing a prima facie case that the conduct is potentially prejudicial.") (quoting Amazon v. State, 487 So.2d 8, 11 (Fla.1986)). Instead, Dennis petition expresses hypothetical
Next, Dennis asserts that judicial bias is evidenced by adverse rulings, an alleged ex parte communication with the jury, and a friendship with Dr. Rao. However, none of these allegations rises to the level of fundamental error. As this Court has explained, adverse trial court rulings do not generally provide a legally sufficient basis for disqualification. Waterhouse v. State, 792 So.2d 1176, 1194 (Fla.2001). Additionally, when viewed in context, it is clear that the record does not support Dennis' claim that an ex parte conversation regarding the jury instructions occurred. Furthermore, Dennis' allegation regarding the judge's friendship with Dr. Rao is based upon information disclosed at an evidentiary hearing that took place during the first proceeding on Dennis' postconviction motion. It is not based upon the appellate record. See Rutherford, 774 So.2d at 646.
Accordingly, appellate counsel was not ineffective for failing to present these alleged instances of fundamental error, and Dennis is not entitled to relief.
Next, Dennis contends that the admission of Dr. Rao's testimony during the penalty phase violated his confrontation rights under the United States Supreme Court's decisions in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), because her testimony was based upon a report written by a medical examiner whom she supervised. However, Crawford does not apply retroactively, and by extension neither does its progeny, Melendez-Diaz. See Whorton v. Bockting, 549 U.S. 406, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007); Chandler v. Crosby, 916 So.2d 728 (Fla.2005). Accordingly, this claim is without merit.
Dennis contends that his constitutional right to be present during pretrial hearings was violated. As this Court has explained,
Orme v. State, 896 So.2d 725, 738 (Fla. 2005).
However, Dennis is not entitled to relief. First and foremost, this claim is procedurally barred because it was not raised on direct appeal. See Morris v. State, 931 So.2d 821, 832 n. 12 (Fla.2006); Phillips v. State, 894 So.2d 28, 35 n. 6 (Fla.2004). Second, Dennis has failed to point to anything discussed during the pretrial hearings that required his consultation. In other words, he has failed to demonstrate that his absence during these pretrial hearings frustrated the fairness of the proceedings.
Accordingly, we deny relief.
For the foregoing reasons, we affirm the denial of Dennis' postconviction motion and deny his habeas petition.
It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.
CANADY, J., concurs in result.
