David Miller, Jr. V. State Of Florida – Correct
Supreme Court of Florida
____________
Nos. SC04-892 & SC05-472
____________
DAVID MILLER, JR.,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
__________________________
DAVID MILLER, JR.,
Petitioner,
vs.
JAMES R. McDONOUGH, etc., et al.,
Respondents.
[March 23, 2006]
CORRECTED OPINION
PER CURIAM.
David Miller, Jr., a prisoner under a sentence of death for a conviction of first-degree murder, appeals an order of the circuit court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.851 and petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. After review, we affirm the denial of relief and deny the petition for writ of habeas corpus.
FACTS AND PROCEDURAL HISTORY
The underlying circumstances of the case are set out in this Court's decision in Miller's direct appeal:
On March 5, 1997, Linda Fullwood and the victim, Albert Floyd, went to sleep on the floor of a covered doorway of a Jacksonville church. Floyd slept toward the outside and Fullwood closer to the building. Fullwood awoke to a man beating Floyd with a pipe or stick and screamed. The assailant then started hitting Fullwood.
Jimmy Hall testified that he was walking along Duval Street at the time in question when he heard someone yelling. Hall ran behind the church and saw a man beating two people with a pipe. Hall stated that the pipe was four or five feet long with a bent end, the assailant used both hands to swing it, and that blood flung off the pipe onto the ceiling and walls. Hall yelled at the assailant to stop, the assailant turned and started toward Hall, but then fled.
Consequent to the attack, the victim died from three blows to the head. The victim's autopsy revealed three head lacerations that fractured the skull and penetrated into the brain. The injury was consistent with blows from a pipe, any one of which could have resulted in unconsciousness and death.
Two and one-half months later, appellant told a police officer in Louisiana that he killed someone in Jacksonville. Miller met with a detective at the police station, was advised of his rights, and told the detective that he had beaten a man to death while attempting a robbery. Appellant stated that the victim was sleeping, that he intended to knock him unconscious with a five-to-six-foot pipe that was curved at the end, that a woman woke up and started screaming, and that he struck her too. A fourth person then appeared, told appellant to stop, and appellant fled. Miller further stated that he turned himself in because he thought the victim's family was looking for him, his conscience bothered him, he knew that what he did was wrong, and that he wanted to apologize to the victim's family.
Appellant also told detectives that on the night in question he drank three or four quarts of beer, smoked a $10 rock of crack, and then went looking for more money and alcohol. He found a dented six-foot pipe in a park and walked behind a building where he saw a man sleeping under a blanket on a covered concrete porch. Appellant decided to strike the victim to disable him and avoid a struggle before robbing him, although he did not intend to kill him.
In Jacksonville, another detective interviewed appellant and appellant showed him the crime scene. Appellant repeated his story and walked detectives through the crime. He explained that he struck the victim to avoid resistance because he knew that homeless people carry knives and guns, and he did not want to get injured.
Appellant testified that he did not decide to rob the victim until he was actually standing over him with the pipe. He acted without thinking because of his mental state and he battered Fullwood instinctively when confronted by her. When Hall approached, appellant realized his actions and walked away.
During the penalty phase, appellant presented familial, expert, and his own testimony. Appellant's mother, sister, and brother testified about his family background––including abuse by his father when he was a child––and drug and alcohol abuse as an adult. Furthermore, Dr. Harry Krop, a clinical psychologist, testified regarding his findings as to appellant, which included a diagnosis of alcohol and drug abuse, frontal lobe defects, and schizoid personality traits. Appellant testified that he was greatly affected by the fact that his parents never told him that they loved him, although he subsequently learned that his mother loved him as evidenced by her hard work in raising the children. He also expressed religious beliefs and stated that he would accept responsibility for his actions, he apologized to the decedent's family and Fullwood, and he asked for forgiveness.
Miller v. State, 770 So. 2d 1144, 1146-47 (Fla. 2000) (footnote omitted). Miller was convicted by a jury of first-degree murder and the jury returned a death recommendation by a vote of seven to five. The trial court sentenced David Miller to death for the murder and imposed a sentence of twenty-five years incarceration for aggravated battery as a habitual violent felony offender.
On appeal to this Court, Miller raised three issues, claiming the circuit court erred by (1) denying Miller's motion for judgment of acquittal to the premeditation theory for the first-degree murder count; (2) failing to find mitigating circumstances established by the evidence; (3) sentencing Miller to death. This Court affirmed Miller's convictions and sentences on direct appeal. Miller v. State, 770 So. 2d 1144, 1147-50 (Fla. 2000).
Miller filed a shell motion for postconviction relief on September 27, 2001, in order to toll the time periods for federal habeas corpus relief. On January 23, 2002, the trial court granted the State's motion for summary denial and granted an additional thirty days for the filing of an amended motion. On March 11, 2002, Miller filed his amended motion to vacate judgment of conviction, raising sixteen claims for relief.[1] On September 17, 2002, a preliminary hearing was held pursuant to Huff v. State, 622 So. 2d 982 (Fla. 1993). At the Huff hearing the circuit court determined that an evidentiary hearing would be held on claims (2), (3), (4), (8), and (13).[2] Following the evidentiary hearing, the circuit court denied all claims.[3]
RULE 3.851 APPEAL
Miller filed a notice of appeal for review in this Court asserting that the circuit court erred in denying seven of his claims. Miller argues in this appeal that the postconviction court should have found: (1) trial counsel was ineffective for failing to present sufficient mitigation evidence and mental health testimony to the jury during the penalty phase; (2) trial counsel was ineffective in failing to offer evidence to minimize the aggravating factor of a prior violent felony arising from defendant's prior second-degree murder conviction; (3) trial counsel was ineffective for failing to object to the State's closing argument; (4) Florida's death penalty statute is unconstitutional due to numerous jury instructions which fail to ensure that death is not imposed arbitrarily; (5) the death penalty is inappropriate in this case; (6) Florida's sentencing procedure is unconstitutional under Ring v. Arizona, 536 U.S. 584 (2002); (7) Florida's sentencing statute is unconstitutional on its face and as applied because it violates the Eighth and Fourteenth Amendments of the United States Constitution and article I, sections 9, 16, and 17 of the Florida Constitution.
1. Ineffective Assistance of Counsel Claims
Following the United States Supreme Court's decision in Strickland v. Washington, 466 U.S. 668 (1984), this Court has held that two requirements must be satisfied in order for ineffective assistance of counsel claims to be successful: (1) the claimant must identify particular acts or omissions of the lawyer that are outside of the broad range of reasonably competent performance under prevailing professional standards and (2) the deficiency shown must be demonstrated to have so affected the proceeding that confidence in the outcome is undermined. See, e.g., Happ v. State, 30 Fla. L. Weekly S839, S840 (Fla. Dec. 8, 2005); Suggs v. State, 30 Fla. L. Weekly S812, S814 (Fla. Nov. 17, 2005); Holland v. State, 916 So. 2d 750, 756 (Fla. 2005).
A. Mitigating Evidence
Miller asserts that trial counsel was ineffective for failing to perform an adequate investigation into mitigating evidence and failing to present adequate mitigating evidence during the penalty phase.
First, Miller argues that trial counsel Refik Eler performed a deficient investigation because he failed to obtain an adequate mental health evaluation from the health consultant, Dr. Harry Krop. Dr. Krop testified at the evidentiary hearing that his initial communication had been with original counsel, Alan Chipperfield. Eler testified that his task in investigating the case was made easier by the extensive groundwork laid by Assistant Public Defender Chipperfield, who initially had the case, and had prepared it â€
