Anthony Mungin v. State Of Florida
Supreme Court of Florida
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No. SC03-780
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ANTHONY MUNGIN,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
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No. SC03-1774
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ANTHONY MUNGIN,
Petitioner,
vs.
JAMES R. MCDONOUGH, etc.,
Respondent.
[April 6, 2006]
PER CURIAM.
Anthony Mungin appeals an order of the circuit court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained in this opinion, we affirm the trial court's order and deny the petition for a writ of habeas corpus.
FACTS AND PROCEDURAL HISTORY
Anthony Mungin was convicted of the 1990 murder of convenience store clerk Betty Jean Woods. The pertinent facts of this case are set forth in this Court's opinion on direct appeal as follows:
Betty Jean Woods, a convenience store clerk in Jacksonville, was shot once in the head on September 16, 1990, and died four days later. There were no eyewitnesses to the shooting, but shortly after Woods was shot a customer [Ronald Kirkland] entering the store passed a man leaving the store hurriedly with a paper bag. The customer, who found the injured clerk, later identified the man as Mungin. After the shooting, a store supervisor found a $59.05 discrepancy in cash at the store.
Mungin was arrested on September 18, 1990, in Kingsland, Georgia. Police found a .25-caliber semiautomatic pistol, bullets, and Mungin's Georgia identification when they searched his house. An analysis showed that the bullet recovered from Woods had been fired from the pistol found at Mungin's house.
Jurors also heard Williams[[1]] rule evidence of two other crimes. They were instructed to consider this evidence only for the limited purpose of proving Mungin's identity.
First, William Rudd testified that Mungin came to the convenience store where he worked [in Monticello] on the morning of September 14, 1990, and asked for cigarettes. When Rudd turned to get the cigarettes, Mungin shot him in the back. He also took money from a cash box and a cash register. Authorities determined that an expended shell recovered from the store came from the gun seized in Kingsland.
Second, Thomas Barlow testified that he saw Meihua Wang Tsai screaming in a Tallahassee shopping center on the afternoon of September 14, 1990. Tsai had been shot while working at a store in the shopping center. A bullet that went through Tsai's hand and hit her in the head had been fired from the gun recovered in Kingsland.
Mungin v. State, 689 So. 2d 1026, 1028 (Fla. 1995) (footnote omitted). The jury, which was instructed on both premeditated murder and felony murder with robbery or attempted robbery as the underlying felony, returned a general verdict of first-degree murder. See id.
During the penalty phase, the State presented the testimony of Detective Cecil Towle, who was the lead investigator in the Tallahassee case. Detective Towle testified regarding his interview with the victim, Ms. Tsai, who had returned to China.
In mitigation, Mungin presented the testimony of friends and family who had close contact with Mungin as a child and teenager. They collectively testified that he was very respectful of his grandparents, with whom he lived, that he attended church, and that he was not a violent or aggressive person. However, most of these witnesses also testified that they had not had any contact with Mungin in at least several years.
Mungin also presented the testimony of Glenn Young, a corrections and probation officer who supervised Mungin for about six months when Mungin resided at the Cross City Correctional Institution beginning in January 1992. Young testified that Mungin had no disciplinary violations during that time. During questioning by defense counsel, Young also indicated that although Mungin was currently serving a life sentence for the other shootings, it did not necessarily mean that he would be incarcerated for life.
Last, Mungin presented the testimony of Dr. Harry Krop, a clinical psychologist and expert in forensic psychology. Dr. Krop testified that he did not find any evidence that Mungin suffered from any major mental illness or personality disorder. Dr. Krop indicated that Mungin functioned in the average range of intellectual ability and that there was no evidence of any type of neurological impairment. Dr. Krop did state that Mungin suffers from a history of drug and alcohol abuse and that Mungin did fairly well in school until drugs changed his lifestyle. Dr. Krop also made it clear that although shooting someone is an antisocial act, in his opinion, Mungin does not suffer from a personality disorder, shows a number of positive strengths, and would be able to function in open prison society.
At the conclusion of the penalty phase, the jury recommended the death penalty by a vote of seven to five. See id. at 1028. After weighing the aggravating and mitigating circumstances, the trial court followed the jury's recommendation and sentenced Mungin to death.[2]
Mungin raised nine issues on direct appeal.[3] This Court concluded that the trial court erred in denying Mungin's motion for judgment of acquittal on the theory of premeditated murder. See id. at 1029. However, the Court did not reverse Mungin's first-degree murder conviction because the Court concluded that the trial court correctly denied Mungin's motion for judgment of acquittal on the alternative theory of felony murder. See id. The Court also ruled that although the trial court erred in instructing the jury on premeditated murder, this error was harmless. See id. The Court rejected all of Mungin's other arguments as either unpreserved or meritless, and affirmed the first-degree murder conviction and sentence of death. See id. at 1030-32.
After several changes of counsel, Mungin filed a consolidated amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, in which he raised multiple claims. Following a Huff[4] hearing, the circuit court ordered an evidentiary hearing on three of Mungin's claims: (1) that trial counsel rendered ineffective assistance during the guilt phase; (2) that there is newly discovered evidence; and (3) that trial counsel rendered ineffective assistance during the penalty phase by failing to present evidence of Mungin's troubled childhood. Prior to the evidentiary hearing, Mungin filed two supplemental claims. The first claim alleged that if the State knew of eyewitness Kirkland's criminal history and did not disclose it to defense counsel, the State violated Brady v. Maryland, 373 U.S. 83 (1963). In his second supplemental claim, Mungin argued that his death sentence should be reversed under Ring v. Arizona, 536 U.S. 584 (2002). The circuit court declined to consider Mungin's supplemental Brady claim based on its previous ruling that it would not allow any more filings. The trial court also decided not to address the Ring claim until there was further development on the issue from either this Court or the United States Supreme Court.
At the evidentiary hearing, Mungin presented the testimony of several witnesses to support his claims of ineffective assistance of trial counsel. Charles G. Cofer, Mungin's lead trial counsel, testified regarding his recollection of his actions during trial preparation and trial.[5] Edward Kimbrough, Jesse Sanders, Brian Washington, Victoria Jacobs, Philip Levy, and Vernon Longworth testified regarding Mungin's whereabouts on the day of the murder and to other facts supporting Mungin's claim that trial counsel was ineffective for failing to fully investigate Mungin's alibi defense. Eyewitness Ronald Kirkland testified regarding his statement to police in 1990, his identification of Mungin, and his prior criminal history. In rebuttal, the State presented the testimony of Cofer and Detective Dale Gilbreath, the lead detective in the case.
The trial court issued an order denying relief and Mungin appeals, raising seven issues, which include numerous subissues, for this Court's review.[6] Mungin also petitions for a writ of habeas corpus, raising three claims for relief.[7]
ANALYSIS
A. MOTION FOR POSTCONVICTION RELIEF
1. Recusal of Judge Southwood
In his first issue on appeal, Mungin argues that Senior Judge John D. Southwood, as well as all of the judges on the Fourth Judicial Circuit, should have been recused from presiding over Mungin's postconviction proceedings because at the time of these proceedings Mungin's trial counsel, Charles G. Cofer, was a sitting county judge in Duval County. Mungin admits that he did not timely file a motion to disqualify in the trial court but argues that Judge Southwood should have sua sponte recused himself and that his failure to do so was fundamental error. Mungin asks this Court to reverse the denial of his postconviction motion and grant him a new evidentiary hearing in another judicial circuit. Essentially, he urges a per se rule that any time a judge in a circuit represented the defendant in a criminal trial and testifies as a witness in a postconviction proceeding, all the judges of that circuit must sua sponte recuse themselves. We disagree that any rule, statute or court precedent dictates such a result and consider a rule of circuitwide disqualification unnecessary to preserve judicial impartiality.
In addition, Mungin's argument is procedurally barred because it was raised for the first time on appeal in disregard of the time parameters in which motions to disqualify should be filed. As we stated in a recent case, a claim of judicial bias is procedurally barred on direct appeal if the defendant fails to seek disqualification of the judge after having specific knowledge of the grounds for disqualification. See Schwab v. State, 814 So. 2d 402, 407 (Fla. 2002).
In Schwab, the Court rejected the defendant's argument that the judge should have recused himself under Canon 3E of the Code of Judicial Conduct. We distinguished Maharaj v. State, 684 So. 2d 726 (Fla. 1996), in which the defendant discovered after he commenced his appeal of the denial of his 3.850 motion that the trial judge had previously supervised the attorneys who prosecuted the defendant. See Schwab, 814 So. 2d at 408. Canon 3E(1)(b) expressly requires that a judge be disqualified if â€
