Opinion
No. SC95075.
Opinion filed July 3, 2003.
An Appeal from the Circuit Court in and for Indian River County, Dwight Geiger, Judge — Case No. 86-322B
Ross B. Bricker, Jeffrey A. Koppy and Ellen C. Lamond of Jenner Block, Chicago, Illinois, for Appellant
Charles J. Crist, Jr., Attorney General, and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, Florida, for Appellee
Harold Lee Harvey, a prisoner under a sentence of death, appeals an order of the trial court denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction.See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we reverse the trial court's denial of rule 3.850 relief and remand to the trial court for a new trial.
FACTS AND PROCEDURAL HISTORY
Harvey was charged with two counts of first-degree murder in the killings of William and Ruby Boyd during the course of a robbery at the Boyds' home. After obtaining money from the victims, Harvey and his codefendant discussed what they were going to do with the Boyds and decided they would have to kill them. Harvey shot both victims. Harvey v. State, 529 So.2d 1083, 1084 (Fla. 1988).
At trial, Harvey was convicted of the first-degree murders of the Boyds. The jury recommended death by a vote of eleven to one. The sentencing judge found four aggravating factors and as a mitigating circumstance found that Harvey had a low I.Q. and poor educational and social skills. Id. at 1088 n. 5.
The murders were found to be: (1) especially heinous, atrocious, or cruel; (2) committed for the purpose of avoiding lawful arrest; (3) committed in a cold, calculated, and premeditated manner; and (4) committed during the commission of or the attempt to commit robbery or burglary. Id. at 1087 n. 4.
On appeal, we affirmed Harvey's convictions and sentences of death.Id. at 1088. After the governor signed a death warrant on March 29, 1990, Harvey filed a petition for writ of habeas corpus with this Court along with a request for stay of execution. We issued a stay so that Harvey could seek relief under rule 3.850. Thereafter, Harvey filed a motion for postconviction relief in the trial court. After an evidentiary hearing on one of the claims, the trial judge entered an order denying relief. Harvey appealed the denial of his postconviction motion, raising seventeen claims, and also filed a supplemental habeas petition raising seven issues. We denied the petition for writ of habeas corpus, but reversed the trial court's summary denial of the postconviction motion as to five issues to determine if Harvey was denied effective assistance of counsel. Harvey v. Dugger, 656 So.2d 1253 (Fla. 1995). After an evidentiary hearing on these five issues, the trial court denied postconviction relief in an amended order.
This Court denied Harvey's remaining rule 3.850 claims. See Harvey v. Dugger, 656 So.2d 1253 (Fla. 1995).
Harvey now appeals the denial of postconviction relief, raising the following claims for review: (1) whether trial counsel was ineffective for failing to investigate and present evidence of mental mitigation; (2) whether trial counsel was ineffective for failing to adequately investigate and present mitigating evidence; (3) whether trial counsel was ineffective for admitting Harvey's guilt during opening statement; (4) whether trial counsel was ineffective for failing to make several arguments in support of his motion to suppress Harvey's confession; and (5) whether the cumulative effect of trial counsel's other errors constituted ineffective assistance of counsel. However, because we find the resolution of claim (3) to be dispositive, claims (1), (2), (4), and (5) are rendered moot in light of this opinion. See Clark v. State, 690 So.2d 1280, 1282 n. 4 (Fla. 1997).
In Harvey v. Dugger, 656 So.2d at 1256, we found the remainder of this claim to be procedurally barred with the exception of the portion of the claim relating to the booking sheet because the issue of the suppression of Harvey's confession was raised on direct appeal and rejected by this Court.
DISCUSSION
Harvey claims trial counsel was ineffective for admitting guilt without Harvey's consent during the guilt phase opening statement. Specifically, Harvey argues that trial counsel's statements to the jury were the functional equivalent of a guilty plea to both first-degree and second-degree murder, and that this concession of guilt, without Harvey's consent, constituted per se ineffective assistance of counsel. The State, on the other hand, argues that the trial court properly denied relief because trial counsel did not concede guilt to the crime charged.
Florida Rule of Criminal Procedure 3.171(c)(1) provides:
Defense counsel shall not conclude any plea agreement on behalf of a defendant-client without the client's full and complete consent thereto, being certain that any decision to plead guilty or nolo contendere is made by the defendant.
Crucial to this issue's resolution is a determination of the appropriate standard of review. As we have discussed numerous times, theStrickland v. Washington, 466 U.S. 668 (1984), standard normally applies to ineffective assistance of counsel claims. Under Strickland, in order to establish an ineffective assistance of counsel claim, a defendant must demonstrate (1) deficient performance by counsel and (2) prejudice to the defense. Id. at 687. However, there are instances where the rule announced in United States v. Cronic, 466 U.S. 648 (1984), applies to decisions of trial counsel. In Cronic, "the Supreme Court created an exception to the Strickland standard for ineffective assistance of counsel and acknowledged that certain circumstances are so egregiously prejudicial that ineffective assistance of counsel will be presumed."Stano v. Dugger, 921 F.2d 1125, 1152 (11th Cir. 1991) (en banc). The Supreme Court stated:
Moreover, because we presume that the lawyer is competent to provide the guiding hand that the defendant needs, see Michel v. Louisiana, 350 U.S. 91, 100-101 (1955), the burden rests on the accused to demonstrate a constitutional violation. There are, however, circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.
Most obvious, of course, is the complete denial of counsel. The presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial. Similarly, if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable. No specific showing of prejudice was required in Davis v. Alaska, 415 U.S. 308 (1974), because the petitioner had been "denied the right of effective cross-examination" which "`would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.'" Id., at 318 (citing Smith v. Illinois, 390 U.S. 129, 131 (1968), and Brookhart v. Janis, 384 U.S. 1, 3 (1966)).
Cronic, 466 U.S. at 658-59 (emphasis added) (footnotes omitted). Thus, "Cronic only applies to the narrow spectrum of cases where the defendant was completely denied effective assistance of counsel." Nixon v. Singletary, 758 So.2d 618, 622 (Fla. 2000).
To determine which test applies, we must first decide whether Harvey's trial counsel "entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing." Cronic, 466 U.S. at 659. Trial counsel began his arguments to the jury by stating:
Harold Lee Harvey is guilty of murder. If anything is established over the next week it will be that Harold Lee Harvey is guilty of murder. I have been doing defense work for some time. I've never said that in a court of law, that my client is guilty of murder. But he is. That doesn't by any means end your consideration of his case. The physical act that he committed was that he pulled the trigger on what was an automatic military weapon firing it into a room, discharging projectiles that hit human beings and killed them.
Now, what events lead up to that? What events place this young man in that chair in this room before these 14 people to determine not whether or not he's a murderer but merely what type of murderer he is?
At this point, the State argues that trial counsel's strategy was obvious: trial counsel was attempting, in the face of Harvey's confession, to argue that while Harvey did commit murder, it was second-degree murder because it was done without premeditation. However, a review of trial counsel's entire opening statement tells a different story. In describing the events leading up to the murder, trial counsel stated the following:
And then it happened just about the way that Mr. Morgan said it did. When they got there Mrs. Boyd surprised them. She was outside the house. She was on her way out to get the garbage, they didn't have time to put their masks on. Mrs. Boyd came up to them, it was, I believe, shortly before nightfall, and asked them at the front door, "What are you doing out here?" And Stiteler looked at Lee and Lee looked at Stiteler and they knew that things were starting to go wrong. And they had Mrs. Boyd walk back into the house and Mr. Boyd was in the house and they told them, "We want your money." And Stiteler ran around the house, all through the house looking for this cache of money, while Lee went into the bedroom with Mr. and Mrs. Boyd. Mr. and Mrs. Boyd then gave Lee what little bit they had, which was about $30 or $40 at the time. They didn't have any stash of money there. And Stiteler never did find the stash of money and they came down and completed the robbery. And little facts come out in cases that are always sometimes more indicative of what's really going on and is more indicative about the human beings involved than what the real plan was than other things. And the little fact in this case is Mr. Boyd asked for money for church, it was Saturday. And he said, "I have to go to church tomorrow, you're taking all my money." After all, he's thinking this is the neighbor kid. I know this kid, he lives over here. What's this crazy kid doing? And Lee gave him back money for church, because he didn't plan to kill him.
But then they went outside. And at that time Stiteler had the imposing weapon and Lee had the handgun. And at that point they began this frenzied conversation. They were just outside the home and the door was half open. They asked Mr. and Mrs. Boyd to sit down at a card table in the room, and you'll see pictures of the room.
And they had this conversation and without question what was discussed during this conversation was whether or not to kill these two people. This is a crazy conversation for these two young men to be having but that's what it had gotten to.
(Emphasis added.) The emphasized language above clearly demonstrates that trial counsel admitted that Harvey deliberated his plan to kill the Boyds. By stating that Harvey and Stiteler had a conversation in which they discussed the plan to commit murder, trial counsel conceded that Harvey acted with premeditation and, therefore, conceded Harvey's guilt to first-degree murder. Trial counsel's comments were the functional equivalent of a guilty plea, and for this reason, we find that trial counsel's performance failed to subject the prosecution's case to meaningful adversarial testing under Cronic and therefore must be presumed ineffective. See Atwater v. State, 788 So.2d 223, 231 (Fla. 2001) (explaining when the Cronic presumption is applicable).
We faced a similar situation in Nixon. In that case, the defendant argued that trial counsel was ineffective because his opening and closing arguments contained statements that were the functional equivalent of a guilty plea. 758 So.2d at 620. We agreed, and "conclude[d] that Nixon's claim must prevail at the evidentiary hearing below if the testimony establishes that there was not an affirmative, explicit acceptance by Nixon of counsel's strategy." Id. at 624 (emphasis added). In this case, the trial court has already conducted an evidentiary hearing on this issue, and made the following findings of facts and conclusion of law:
Because [trial counsel] felt the confession "was the case," he had discussed with Mr. Harvey during case preparation what his defense could be and that they probably would admit some degree of murder if the confession was not suppressed. They specifically discussed on more than one occasion that if the confession was ruled admissible, [trial counsel] would make an opening statement that Harvey was guilty of murder, but that it was second degree murder and not either premeditated or felony murder. Mr. Harvey said he understood this defense tactic.
[Trial counsel] stated to the jury during his opening statement that the evidence would show a murder was caused by a frightened and confused young Mr. Harvey after he and his friend had robbed the victims. He stated that Harvey did not intend to kill.
. . . .
Defendant's trial counsel was not ineffective because of his opening statement to the jury. Key to whether the opening statement was ineffective is whether the strategy of conceding guilt of murder and arguing for a conviction of murder in the second degree had been discussed with Mr. Harvey. The argument for a second degree conviction is not per se ineffective and is a valid trial strategy, for which there was an evidentiary basis. The facts show a sufficient discussion of this strategy between counsel and defendant before the statement was made to the jury. The facts also show that the concession of guilt of murder was not of guilt of first degree murder and thus not an improper admission of guilty plea.
However, the trial court's factual findings are not supported by the record.
As outlined above, trial counsel's opening statement actually conceded first-degree murder because trial counsel stated that "without question" Harvey discussed whether to kill the Boyds before the murder. Trial counsel also indicated that Harvey and his codefendant were in the process of robbing the victims when the murders were committed, thereby conceding Harvey's guilt to felony murder. Testimony from the evidentiary hearing demonstrates that, at best, trial counsel informed Harvey of his strategy to concede guilt to second-degree murder. Trial counsel testified that in light of Harvey's confession, "I was offering [the jury] the opportunity of convicting him of murder while saving his life and pointing out that second degree murder is murder. . . . They could convict him of murder and feel as though they had done their civic duty while still saving his life." Harvey, however, testified that he did not consent to trial counsel's statements to the jury conceding any degree of murder, and even so, "[s]ilent acquiescence is not enough." Nixon, 758 So.2d at 624. While we would be inclined to agree with the trial court's conclusion had trial counsel conceded only second-degree murder, we cannot agree in light of trial counsel's opening remarks to the jury.
We are aware that Nixon did not involve a confession. However, even in cases involving a confession, the jury is free to give as much or as little weight to the confession as it wishes. As we explained in Nixon: "In every criminal case, a defense attorney can, at the very least, hold the State to its burden of proof by clearly articulating to the jury or fact-finder that the State must establish each element of the crime charged and that a conviction can only be based upon proof beyond a reasonable doubt." 758 So.2d at 625. In other words, trial counsel cannot be excused for conceding guilt and, under the facts of this case, failing to subject the prosecution's case to a meaningful adversarial testing just because Harvey confessed to the crime charged. We made it very clear in Nixon that a defendant must give an "affirmative, explicit acceptance" of counsel's strategy to concede guilt because conceding guilt is the functional equivalent of a guilty plea. Id. at 624; see also Atwater, 788 So.2d at 231 ("Thus, in Nixon we held that unless the defendant expressly consented to this strategy, or in effect knowingly and voluntarily consented to decline meaningful adversarial testing of the prosecution's case, then prejudice to the defendant is presumed and counsel is thus per se ineffective."). Here, Harvey pled not guilty to the charges against him, including first-degree murder. Trial counsel's concessions, however, rendered that not guilty plea a nullity.
CONCLUSION
In sum, we find that trial counsel conceded Harvey's guilt to first-degree murder by stating, in his guilt phase opening statement, that Harvey acted with premeditation and that the murder was committed during the course of a robbery. Trial counsel testified at the evidentiary hearing that he conceded guilt in response to the denial of the motion to suppress Harvey's confession; however, trial counsel also repeatedly testified that his strategy was to concede guilt only to second-degree murder by arguing Harvey did not intend to kill the Boyds. A close reading of trial counsel's opening statement shows that he did otherwise. Thus, we conclude that under Nixon and Cronic, trial counsel's performance in this case constituted per se ineffective assistance of counsel. For this reason we reverse the denial of Harvey's motion for postconviction relief and remand with directions that his convictions be vacated.
It is so ordered.
ANSTEAD, C.J., PARIENTE and QUINCE, JJ., and SHAW, Senior Justice, concur.
WELLS, J., dissents with an opinion.
LEWIS, J., dissents.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
For many of the same reasons that I dissented in Nixon v. Singletary, 758 So.2d 618 (Fla. 2000), I dissent here. In addition, I find this decision, in its application of United States v. Cronic, 466 U.S. 648 (1984), to be in conflict with this Court's decision in Atwater v. State, 788 So.2d 223 (Fla. 2001), and the Eleventh Circuit's decision inMcNeal v. Wainwright, 722 F.2d 674 (11th Cir. 1984).
However, it is also my view that here the present majority does not follow what this Court did in remanding this case for an evidentiary hearing on this issue in 1995 in Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla. 1995):
In claim 1(f), Harvey argues that he was denied effective assistance of counsel in the guilt phase of the trial when without his consent, defense counsel conceded Harvey's guilt in the opening argument. Harvey maintains that this concession nullified his fundamental right to have the issue of guilt or innocence presented to the jury as an adversarial issue. Because the record before us is unclear as to whether Harvey was informed of the strategy to concede guilt and argue for second-degree murder, we remand to the trial court for an evidentiary hearing on this issue. See Nixon v. State, 572 So.2d 1336 (Fla. 1990), cert. denied, 502 U.S. 854 (1991).
(Emphasis added.) In that 1990 Nixon opinion, this Court did not make a decision that Cronic applied to Nixon. All this Court did was state that it declined to dispose of Nixon's claim on the state of the record at that time.
The point here, though, is that this Court now has before it the very same opening statement by defense counsel that it did in its 1995 consideration of this case. If this Court believed that "trial counsel's comments were the functional equivalent of a guilty plea" and, based uponCronic, that trial counsel's representation of Harvey was presumptively ineffective, there was no need to remand the case for an evidentiary hearing.
Yet, this Court in 1995 did not hold that Cronic applied based upon the opening statement and did remand for an evidentiary hearing. The trial court held an extensive, six-day evidentiary hearing and entered a thorough and detailed order. In that order, the trial judge, based upon the evidence at the evidentiary hearing which this Court had directed that the trial judge have, found:
The argument for a second degree conviction is not per se ineffective and is a valid trial strategy, for which there was an evidentiary basis. The facts show a sufficient discussion of the strategy between counsel and defendant before the statement was made to the jury.
State v. Harvey, No. 86-75 CF, order at 11 (Fla. 19th Cir. Ct. order filed Jan. 26, 1999) (emphasis added). The trial court did precisely what this Court ordered eight years ago. I find no basis under the law of this case to now reverse the trial judge on the basis that the present majority of this Court comes to the conclusion that counsel's opening statement, given in 1986, was per se ineffective assistance of counsel. To the contrary, to grant a new trial to Harvey on this basis is plainly wrong.