PER CURIAM.
This case is before the Court on appeal from an order denying a motion to vacate a judgment of conviction of first-degree murder and a sentence of death under Florida Rule of Criminal Procedure 3.851. The order concerns postconviction relief from a capital conviction for which a sentence of death was imposed, and this Court has jurisdiction of the appeal under article V, section 3(b)(1), Florida Constitution. Because Guardado has failed to show that counsel were ineffective at either the guilt or penalty phases of his trial, we affirm the denial of postconviction relief.
This Court summarized the facts of this case in greater detail on direct appeal. The facts relevant here are as follows:
Guardado v. State, 965 So.2d 108, 110-11 (Fla.2007). Guardado was indicted on charges of first-degree murder and robbery with a weapon and pled guilty to both counts. Id. at 110. At the penalty phase, Guardado's attorneys, John Gontarek and Jason Cobb, presented two witnesses: Dr. James Larson, a clinical psychologist, and Guardado himself. At the conclusion of the penalty phase, the jury returned a unanimous recommendation of death. Id. at 111. The trial court sentenced Guardado to death, making the following findings as to the aggravating and mitigating circumstances:
Id. at 112-13. On direct appeal, Guardado claimed that the trial court erred in denying his request to discharge his court-appointed counsel and his motion to dismiss based on Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and that there was no competent, substantial evidence to establish the HAC or CCP aggravators. Guardado, 965 So.2d at 113-18. This Court affirmed the convictions and sentences. Id. at 120.
Guardado filed his original rule 3.851 motion on October 15, 2008, but on June 1, 2010, filed an amended motion, raising four claims
To prevail on an ineffectiveness claim, a defendant must satisfy both prongs of the Strickland
The proper standard for evaluating deficient performance is "reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688, 104 S.Ct. 2052. "[T]he claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards." Walker, 88 So.3d at 134 (quoting Bolin v. State, 41 So.3d 151, 155 (Fla.2010)). In assessing counsel's performance, judicial scrutiny must be "highly deferential," and counsel is entitled to the strong presumption that his or her conduct "falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Thus, a defendant "must 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)).
To establish prejudice, the defendant must show that without counsel's deficiency, there is a "reasonable probability" that the defendant would have received a different sentence. Simmons v. State, 105 So.3d 475, 503 (Fla.2012). The deficiency must be demonstrated to have "so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined." Walker, 88 So.3d at 134 (quoting Bolin, 41 So.3d at 155); see also Strickland, 466 U.S. at 694, 104 S.Ct. 2052 ("A reasonable probability is a probability sufficient to undermine confidence in the
Guardado claims that his defense team provided ineffective assistance by failing to conduct a reasonable investigation into potential mitigation, or to present adequate mitigation, and by failing to expand that investigation when it became evident that such expansion was necessary. Guardado has several complaints regarding his counsel's mitigation investigation, but he fails to demonstrate deficiency or prejudice regarding them. Finding none upon our own review of the record, we summarily deny these claims and only address Guardado's claims that counsel failed to contact and present several potentially mitigating witnesses and failed to expand its investigation of possible mitigation when it became clear that such action was necessary.
"[A]n attorney has a strict duty to conduct a reasonable investigation of a defendant's background for possible mitigating evidence." State v. Riechmann, 777 So.2d 342, 350 (Fla.2000). The goal of such investigation is to discover all reasonably available evidence that could either be mitigating or instead rebut the aggravating evidence introduced by the State. Blackwood v. State, 946 So.2d 960, 974 (Fla.2006). Furthermore, the mitigation presented to the jury must focus on the particularized characteristics of the defendant, so that the recommended sentence may be individualized based on those characteristics. Armstrong v. Dugger, 833 F.2d 1430, 1433 (11th Cir.1987).
Guardado argues that counsel failed to conduct a reasonable investigation by failing to contact ten potentially mitigating witnesses.
The postconviction court found that Guardado was not entitled to relief on this claim. The court properly held that Guardado did not demonstrate deficiency or prejudice as to the first four witnesses because he did not provide any testimony from these witnesses at the evidentiary hearing. Regarding Warren, Porter, and Guardado's brother Bennie, Guardado provided only letters from these witnesses, containing mostly background information about Guardado. The court found no deficiency because the letters did not establish that either of these three were available or willing to testify.
Major Rhodene Mathis is a retired prison warden who was a major at the prison while Guardado was there. The court found that her testimony at the evidentiary hearing
Elizabeth Padgett, Guardado's friend, testified that she met Guardado when he was dating a friend of hers (Donna Porter). Padgett testified that she had only known Guardado for about six to nine months. Guardado testified that he told his penalty phase counsel about Padgett. However, the postconviction court found that Guardado's testimony was not credible. The court concluded that counsel could not be found deficient "for failing to contact or investigate a witness of which they had no knowledge because of Defendant's own actions." The court also found that Padgett's testimony could have easily been discredited and was largely cumulative of Dr. Larson's and Guardado's testimony at the penalty phase.
The postconviction court's finding that Guardado's testimony was not credible is supported by competent, substantial evidence. Several times at the penalty phase and Spencer hearings, Guardado was asked whether he had anything else that he believed his counsel should present in mitigation. Each time, Guardado either informed the judge that he had "no knowledge of any further mitigation" that he could present or wavered regarding the issue, without ever indicating any additional mitigation. This behavior continued at the evidentiary hearing. As a result, the postconviction court's finding that Guardado's testimony was not credible is supported by competent, substantial evidence. Further, our review of the record confirms the postconviction court's determination that Padgett's testimony would have been cumulative to that already presented. No deficiency has been demonstrated.
Finally, Guardado argues that his mother, Patsy Umlauf, should have been called as a witness or, in the alternative, that defense counsel should have read her letter to the jury at trial rather than just entering it as an exhibit. There was a dispute as to whether Umlauf refused to testify or was simply not contacted by defense counsel. In either event, Guardado is not entitled to relief because he has failed to demonstrate prejudice regarding his mother's potential oral or written testimony.
The postconviction court found that Umlauf's testimony at the evidentiary hearing "failed to establish detailed mitigation."
We agree with the postconviction court's finding of no prejudice from Umlauf not being called as a witness. We also find no prejudice from defense counsel's decision not to read Umlauf's letter to the jury. The letter substantively tracks much of the same information about which Umlauf testified at the evidentiary hearing. Although the jury did not hear about Guardado losing his father and brother at a young age, this fact does not establish prejudice because a claim of ineffective assistance "will not be sustained where the jury was aware of most aspects of the mitigation evidence that the defendant claims should have been presented." Troy v. State, 57 So.3d 828, 835 (Fla.2011). Therefore, we find that Guardado has not demonstrated prejudice regarding the failure to call his mother as a witness or read her letter to the jury and is not entitled to relief on his claim of unreasonable investigation into mitigation. A determination of deficient performance is unnecessary. Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (explaining that a finding of deficient performance is not necessary where an ineffectiveness claim can be disposed of instead for a lack of sufficient prejudice).
"In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691, 104 S.Ct. 2052. This Court must determine whether a decision not to expand the investigation of potential mitigation was reasonable under the circumstances. Cooper v. Sec'y, Dep't of Corr., 646 F.3d 1328, 1351 (11th Cir.2011) ("The question under Strickland is whether ... trial counsel conducted an adequate background investigation or reasonably decided to end the background investigation when [they] did." (internal quotation marks omitted)); see, e.g., Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ("Counsel's decision not to expand their investigation beyond the PSI and the DSS records fell short of the professional standards that prevailed in Maryland in 1989."); Strickland, 466 U.S. at 699, 104 S.Ct. 2052 ("[T]he decision not to seek more character or psychological evidence than was already in hand was likewise reasonable.")
Guardado claims deficiency in that the report by the defense expert, Dr. Larson, failed to address his significant drug problem. Guardado relies on Cooper to argue that counsel should have expanded their investigation by inquiring as to why the report lacked information regarding his substance abuse issues or by instructing Dr. Larson to delve deeper into those issues. Otherwise, Guardado argues that counsel should have sought a more specialized expert in substance abuse addiction. He argues prejudice in that the jury did not hear mitigation related to his drug delirium, never heard that Guardado suffered from a mental illness, and never heard character testimony about Guardado
The postconviction court found no deficiency because defense counsel did present Guardado's chronic alcohol and drug abuse issues at trial, although they were presented as nonstatutory instead of statutory mitigation. The court also found no prejudice because the testimony of the two experts presented at the evidentiary hearing mirrored the information presented to the jury through Dr. Larson's testimony at the penalty phase.
We agree with the postconviction court that Guardado is not entitled to relief on this claim. "Simply presenting the testimony of experts during the evidentiary hearing that are inconsistent with the mental health opinion of an expert retained by trial counsel does not rise to the level of prejudice necessary to warrant relief." Dufour v. State, 905 So.2d 42, 58 (Fla.2005). Yet, that is what Guardado did here. In fact, at the hearing, Guardado's postconviction counsel expressly asked each expert to agree or disagree with a conclusion or statement made by Dr. Larson at trial. A Strickland analysis does not consider "how present counsel would have proceeded, in hindsight, but rather whether there was both a deficient performance and a reasonable probability of a different result." Brown v. State, 846 So.2d 1114, 1121 (Fla.2003) (internal quotation marks omitted); see, e.g., Dufour, 905 So.2d at 56 (finding that "trial counsel was not ineffective simply because after receiving an initial unfavorable report from Dr. Gutman they did not proceed further to seek additional experts for mental mitigation evidence").
Additionally, Guardado's reliance on Cooper is misplaced. In that case, defense counsel hired an expert who could have testified regarding the child abuse the defendant had suffered at the hands of his father; however, counsel decided not to call the expert. Cooper, 646 F.3d at 1352. Instead, counsel relied on the testimony of the defendant's mother, who testified about the abuse she suffered at the hands of the defendant's father, which the defendant witnessed. Id. at 1352-53. The Eleventh Circuit Court of Appeals found that defense counsel's decision "to end the background investigation" was unreasonable because once they decided not to call their expert as a witness, "they did nothing further to develop background information to support their mitigation theory." Id. at 1351-52.
Here, there was no need to develop additional background information to support the defense's mitigation theory. There was no reason to doubt Dr. Larson's report, although it was not as favorable as the defense would have liked. See, e.g., Dufour, 905 So.2d at 56 ("Although counsel did not seek a second opinion, the record clearly reflects that counsel attempted to secure a mental health expert, had no reason to doubt that expert's negative conclusions, and made an informed decision not to present a mental health expert." (emphasis added)). Unlike the expert in Cooper, the expert here, Dr. Larson, did testify. This was not a scenario where an expert who could provide mitigating testimony about the defendant was not called and counsel instead relied on one witness who did not provide specific details regarding mitigating information. Therefore, Guardado has failed to satisfy Strickland as to this claim.
Guardado presents two claims of ineffective assistance regarding voir dire. First, he claims that two prospective jurors, James Tucker and David Hebert, were improperly stricken for cause without
The State argues that Guardado's claim regarding the prospective jurors is procedurally barred because it should have been raised on direct appeal. However, Guardado's claim is not that two qualified prospective jurors were improperly stricken. Rather, it is that penalty phase counsel were ineffective for failing to object to the State's cause challenges of these jurors,
"The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court." Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984). "When a party seeks to strike a potential juror for cause, the trial court must allow the strike when `there is basis for any reasonable doubt' that the juror had `that state of mind which w[ould] enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial.'" Carratelli v. State, 961 So.2d 312, 318 (Fla.2007) (quoting Singer v. State, 109 So.2d 7, 23-24 (Fla.1959)). A trial court's finding that a cause challenge is proper will be sustained on appeal absent an abuse of discretion. Franqui v. State, 804 So.2d 1185, 1191 (Fla.2001).
Guardado claims that Mr. Tucker was erroneously stricken for cause because he never expressed anti-death penalty views that would prohibit his jury service. Guardado argues that the failure to properly object to the striking of this qualified juror is inherently prejudicial under Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976). During voir dire, Mr. Tucker, a lawyer, confirmed that he was opposed to the death penalty for philosophical and personal reasons. He confirmed that he would not be able to vote for the imposition of the death penalty in any case of first-degree murder in Florida. The defense attempted to rehabilitate Mr. Tucker by asking if there were certain circumstances in which he could vote to impose the death penalty, but Mr. Tucker responded:
The State challenged Mr. Tucker for cause and, although defense counsel objected, the court granted the cause challenge. In its postconviction order, the court held that Guardado was not entitled to relief on this claim:
We agree that Guardado is not entitled to relief.
While prospective jurors who voice general objections to the death penalty cannot be excluded from the jury on that basis, Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), prospective jurors who cannot or will not follow the law as applied to the facts of a case can properly be challenged for cause, San Martin v. State, 717 So.2d 462, 467 (Fla.1998). Here, Mr. Tucker did not voice a general objection to the death penalty but instead stated firmly that he could not vote for the death penalty in Florida because of due process concerns and twice stated that his beliefs would substantially impair his ability to obey the law in this case. Thus, the trial court did not abuse its discretion in granting the State's cause challenge as to Mr. Tucker. Any objection by Guardado's counsel would have been meritless, and since "[c]ounsel cannot be deemed ineffective for failing to make a meritless objection," Hitchcock v. State, 991 So.2d 337, 361 (Fla. 2008), Guardado cannot prevail on this claim.
Guardado also claims that prospective juror Hebert did not express anti-death penalty views sufficient to disqualify him from jury service and that the failure to object to the striking of this qualified juror is inherently prejudicial. Davis, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339. During voir dire, Mr. Hebert expressed opposition to the death penalty based on his religious beliefs. Essentially, Mr. Hebert could not, in good conscience, say that he could follow the law. The State moved to strike Mr. Hebert for cause, stating, "And Mr. Hebert is obviously — due to his religious faith is the reason I would move to excuse him." Defense counsel did not object, and the court excused Mr. Hebert for cause. The postconviction court found that Mr. Hebert "could not assure the trial
"[I]t cannot be assumed that a juror who describes himself as having `conscientious or religious scruples' against the infliction of the death penalty ... [has] thereby affirmed that he could never vote in favor of it or that he would not consider doing so in the case before him." Witherspoon, 391 U.S. at 515 n. 9, 88 S.Ct. 1770 (citation omitted). However, if there is any reasonable doubt that a juror who is challenged for cause has the state of mind necessary to render an impartial verdict based on only the law and the evidence, the court must allow the strike. Carratelli, 961 So.2d at 318. Also, a trial court's granting of a cause challenge will be sustained absent an abuse of discretion. Franqui, 804 So.2d at 1191. Here, Mr. Hebert's equivocations did not assure the trial court of his ability to follow the law despite his religion. Thus, the court was reasonable in excusing Mr. Hebert for cause. As counsel cannot be ineffective for failing to make a meritless objection, Hitchcock, 991 So.2d at 361, Guardado has failed to demonstrate ineffective assistance of counsel on this issue.
In a claim of ineffective assistance of counsel "for failing to raise or preserve a cause challenge, the defendant must demonstrate that a juror was actually biased." Carratelli, 961 So.2d at 324. "[A]ctual bias means bias-in-fact that would prevent service as an impartial juror." Id. Evidence of such bias "must be plain on the face of the record." Id.
Guardado argues that three jurors — Pamela Pennington, Earl Hall, and William Cornelius — were biased. Guardado alleged that juror Pennington should have been stricken because the victim had served as a realtor for Pennington's son and Pennington had met with and spoken to the victim in connection with that transaction over the course of several months. Guardado claims that juror Hall should have been stricken because (1) he was "strongly" in favor of the death penalty; (2) he knew three of the police officers who worked on the case; and (3) he noted positive feelings about the victim, whom some of his family members knew personally. Lastly, Guardado claims that juror Cornelius should have been stricken because his aunt and uncle were murdered approximately twenty-five years prior under circumstances similar to the murder in this case. None of these allegations demonstrate actual bias, and Guardado is not entitled to relief.
Guardado has failed to demonstrate ineffective assistance of counsel as to any of his claims. Accordingly, we affirm the postconviction court's denial of relief under rule 3.851.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.