Pinkney Carter v. State of Florida , 175 So. 3d 761 ( 2015 )

Supreme Court of Florida
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No. SC13-1076
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PINKNEY CARTER,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[July 2, 2015]
PER CURIAM.
Pinkney Carter appeals from an order denying a motion to vacate three
judgments of conviction of first-degree murder and two sentences of death under
Florida Rule of Criminal Procedure 3.851. Because the order concerns
postconviction relief from capital convictions for which sentences of death were
imposed, this Court has jurisdiction of the appeal under article V, section 3(b)(1),
Florida Constitution. For the reasons that follow, we affirm the order of the circuit
court denying postconviction relief.
FACTS AND PROCEDURAL HISTORY
Pinkney Carter appeals the order of the circuit court of the Fourth Judicial
Circuit in and for Duval County denying his amended motion for postconviction
relief in which he challenged his convictions and sentences for the 2002 first-
degree murders of Elizabeth Reed, her daughter Courtney Smith, and Glenn
Pafford, whom Reed had been dating. In his postconviction motion, Carter raised
a number of claims, including claims of ineffective assistance of trial counsel.1
The facts surrounding his convictions and sentences for the three first-degree
murders are set forth in this Court’s direct appeal opinion as follows:
Carter and Elizabeth Reed dated on and off for approximately
four years, during which time Carter periodically lived with Reed and
1. The amended postconviction motion alleged the following claims: (1) a
violation under U.S. v. Cronic, 466 U.S. 648 (1984), occurred when defense
counsel admitted at voir dire that Carter killed the three victims, assumed a false
name, and fled the country; (2) trial counsel was ineffective in failing to adequately
prevent the State from seeking the death penalty; (3) trial counsel was ineffective
in failing to move for a change of venue; (4) trial counsel was ineffective in failing
to object to numerous improper comments by the prosecutor during the guilt and
penalty phases of trial; (5) trial counsel was ineffective in failing to challenge
seven of the potential jurors who sat on the jury for cause or by peremptory
challenge despite knowledge that the jurors had been exposed to outside
information about the case; (6) the trial was fraught with procedural and
substantive errors which were not harmless; (7) Florida’s capital sentencing statute
is unconstitutional on its face and as applied in failing to prevent arbitrary and
capricious imposition of the death penalty and, to the extent this issue was not
properly litigated at trial, Carter received ineffective assistance; (8) the law
enacting lethal injection is unconstitutional and violates the prohibition against ex
post facto laws; and (9) trial counsel was ineffective for failing to properly utilize
its chosen mental health experts and argue for two statutory mitigators.
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her four children. During the course of their relationship, Carter
helped Reed purchase a house on Barkwood Drive in Jacksonville and
assisted her financially when she fell behind on her mortgage
payments. At one point in early 2002, Carter proposed marriage, and
Reed accepted. However, the engagement was soon called off and
Carter moved out. Yet, according to Carter, he and Reed continued to
date and were intimate.
By the summer of 2002, Carter learned that Reed had been
seeing Glenn Pafford, who managed the Publix Supermarket where
she worked. Around this time, neighbors spotted Carter lurking
suspiciously near Reed’s home and noticed his red Dodge pickup
truck in the neighborhood.
On Sunday, July 21, 2002, Reed visited Carter’s apartment,
where he was staying with his mother and his brother. Carter testified
that Reed gave him some of her prescription pills for depression, and
the two made plans to meet on Tuesday night. When Reed did not
show up, Carter drove by her house and saw Pafford’s truck in her
driveway. From there, Carter drove home and spent several hours
thinking about his relationship with Reed. He took three of the
antidepressant pills Reed had given him and drank four to five glasses
of whiskey. Around 11:30 p.m., Carter telephoned Reed. Her
fourteen-year-old son Richard answered and told Carter that Reed was
not home.
In the predawn hours of the following day, Carter returned to
Reed’s home. He parked in her front yard, retrieved his loaded .22
caliber rifle from the back seat of his truck, and began walking toward
the house. As Carter approached Reed’s home, Pafford walked out
and Reed stood in the doorway. Concealing his rifle at his side,
Carter confronted the couple and asked why Reed was still seeing him
if she was seeing Pafford. Pafford asked Reed if she was still seeing
Carter, and Reed responded that she was not. Pafford then asked
Reed if she wanted him to stay, but Reed said that she wanted both
men to leave. Carter responded that he was not leaving until he got
some answers. According to Carter, Reed opened the door wider, and
the three entered and stood in Reed’s living room.
Once inside, Carter yelled at Reed, “I can’t believe you’re
going to lie straight to the man’s face like that.” Then, according to
Carter, Reed noticed the gun concealed at his side and grabbed for it.
Reed began struggling with Carter in an attempt to take the gun away
from him. Carter’s finger was on the trigger and Reed had both hands
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on the barrel. Hearing the commotion, Reed’s eldest daughter,
Courtney Smith, ran into the living room, saw the gun, and then ran
back toward her room. At that moment, according to Carter, the gun
discharged, shooting Smith once in the head. Carter testified that
Reed immediately let go of the gun and screamed, “Oh my God, dial
911!” As Reed ran toward her daughter, Carter aimed and shot Reed
twice in the head. Immediately thereafter, Carter turned toward
Pafford, aimed, and shot him three times in the head. Carter then fled
the premises. The noise of the gunshots woke Richard, who came
from his bedroom to find Pafford and Reed dead and Smith critically
injured. Smith later died from her injuries. Reed’s two other
children, Rebecca and Brian, ages eight and six respectively, were
also home at the time of the shooting.
Following the murders, Carter drove to his brother’s house
where he wrote notes to his mother and his sister. He then drove to
Valdosta, Georgia, stole a Georgia state license plate from his friend’s
vehicle and placed it on his red Dodge pickup truck. From there,
Carter drove to Starr County, Texas, where he abandoned his truck on
the bank of the Rio Grande and swam across, entering Mexico
illegally. While swimming, Carter abandoned his rifle, which was
later recovered by the Mission County, Texas, Fire Rescue dive team.
Upon entering Mexico, Carter was detained by the Mexican Military
Police but was later released. Carter then traveled to Central America
before returning to the United States to find work. He worked in both
Illinois and Kentucky under the aliases Chris Cruse and Rodney
Vonthun. Then, on January 6, 2004, while working in Kentucky as a
roofer, Carter was identified by the Kentucky State Police and
arrested for the murders of Pafford, Reed, and Smith.
Carter v. State, 980 So. 2d 473, 477-78 (Fla. 2008) (footnote omitted).
At the conclusion of the penalty phase of the 2005 jury trial in which Carter
was convicted of all three murders, the jury recommended a sentence of death for
the murder of Pafford by a vote of nine to three, a sentence of death for the murder
of Reed by a vote of eight to four, and a sentence of life imprisonment for the
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murder of Smith. After a Spencer hearing,2 the trial judge followed the sentencing
recommendations and, as to each of the two sentences of death, found three
statutory aggravators, giving great weight to each: (1) prior capital convictions for
the contemporaneous murders (§ 921.141(5)(b), Fla. Stat. (2005)); (2) that the
murders were committed during a burglary as specifically found by the jury
(§ 921.141(5)(d), Fla. Stat. (2005)); and (3) that the murders were committed in a
cold, calculated, and premeditated (CCP) manner (§ 921.141(5)(i), Fla. Stat.
(2005)). No statutory mitigators were offered or found, but seventeen nonstatutory
mitigators were found, including but not limited to the fact that Carter came from a
broken and sometimes impoverished home, was abandoned by his abusive father
and ignored by his stepfather, achieved success in high school and college,
exhibited leadership at college, had a distinguished service record in the military,
was a good employee with a good work record, had good family relations, was a
loyal friend, and he offered to plead guilty in exchange for life sentences.
On direct appeal, Carter raised a number of claims. He challenged the
constitutionality of section 775.051, Florida Statutes (2002), which provides that
voluntary intoxication is not a defense to any offense and is not admissible to show
2. Spencer v. State, 615 So. 2d 688, 690-91 (Fla. 1993) (providing for a
hearing after trial, before the judge, at which the parties may present any additional
information or evidence pertinent to the appropriate sentence to be imposed and to
afford the defendant an opportunity to be heard in person).
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lack of specific intent, but the claim was found to be meritless. Carter, 980 So. 2d
at 479-80. We also found that the evidence was sufficient to support the
convictions. Id. at 480. As to penalty phase claims, Carter claimed on direct
appeal that the Court should vacate his death sentences for the murders of Pafford
and Reed because: “(1) the trial court erred in finding the burglary and CCP
aggravators; (2) the trial court erred in giving great weight to the burglary and prior
violent felony aggravators; (3) the trial court erred in issuing a sentencing order
that lacks clarity; (4) the trial court erred in refusing to require the State to follow
the promise it made to the government of Mexico that it would not seek a death
sentence if Carter were released into the State’s custody; (5) Carter’s death
sentence is illegal under Ring v. Arizona, 536 U.S. 584, 609 (2002); and (6) the
trial court erred in giving standard jury instructions which diminished the jury’s
sense of responsibility for sentencing.” Id. at 480. We found each of these claims
to lack merit. Finally, we found the two death sentences to be proportional, and we
affirmed the convictions and sentences. Id. at 485-87.
Carter filed his initial postconviction motion in 2009, which was
subsequently amended. After case management hearings held March 18, 2010,
and October 14, 2011, the circuit court, Judge Lance Day presiding, held an
evidentiary hearing on five of the claims on August 1, 2012, and September 24,
2012. Postconviction relief was denied on March 28, 2013, and this appeal ensued.
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Carter now raises two claims. He first contends that his trial counsel was
ineffective in failing to call a mental health expert during the penalty phase of trial
or in the subsequent Spencer hearing to establish two statutory mitigators and to
disprove one statutory aggravator. He also contends that trial counsel was
ineffective in failing to move for a change of venue. We turn first to the claim that
trial counsel was ineffective in failing to call experts to testify as to mental health
mitigation at trial or at the Spencer hearing.
ANALYSIS
Ineffective assistance of counsel claims present mixed questions of law and
fact. Thus, we employ a mixed standard of review in which we defer to the circuit
court’s findings of fact that are supported by competent, substantial evidence, and
we review that court’s application of law to those facts de novo. See, e.g., Franklin
v. State, 137 So. 3d 969, 980 (Fla. 2014). Under the Supreme Court’s decision in
Strickland v. Washington, 466 U.S. 668 (1984), to prove a claim of ineffective
assistance of counsel, the defendant must show that counsel’s assistance was so
defective as to require reversal. “First, the defendant must show that counsel’s
performance was deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as ‘counsel’ guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense.” Id. at 687. The defendant must show that
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“counsel’s errors were so serious as to deprive the defendant of a fair trial,” which
the Supreme Court defined as “a trial whose result is reliable.” Id. Without both
showings, “it cannot be said that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result unreliable.” Id. In
demonstrating prejudice necessary to meet the second prong of Strickland, “[t]he
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.
In making such an inquiry, “[j]udicial scrutiny of counsel’s performance
must be highly deferential.” Id. at 689. Significantly,
[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. Because of the
difficulties inherent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the
challenged action “might be considered sound trial strategy.”
Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). The Supreme
Court in Strickland recognized that “[m]ore specific guidelines are not
appropriate,” and that the proper measure of attorney performance “remains simply
reasonableness.” Id. at 688. “When a defendant challenges a death sentence such
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as the one[s] at issue in this case, the question is whether there is a reasonable
probability that, absent the errors, the sentencer—including an appellate court, to
the extent it independently reweighs the evidence—would have concluded that the
balance of aggravating and mitigating circumstances did not warrant death.”
Strickland, 466 U.S. at 695. “To assess that probability, [the Court] consider[s]
‘the totality of the available mitigation evidence . . .’ and ‘reweigh[s] it against the
evidence in aggravation.’ ” Porter v. McCollum, 558 U.S. 30, 41 (2009) (quoting
Williams v. Taylor, 529 U.S. 362, 397-98 (2000)). Because both deficient
performance and prejudice must be shown to establish ineffective assistance of
counsel, a reviewing court is not required to rule on one prong of the test when it is
apparent that the other element is not satisfied. See Maxwell v. Wainwright, 490
So. 2d 927, 932 (Fla. 1986).
Mental Health Mitigation
Within this framework, we turn to Carter’s claim that trial counsel should
have presented mental health experts to testify about Carter’s psychological “risk
and protective factors” that he contends would have supported the statutory
mitigators that the murders were committed while Carter was under the influence
of extreme mental or emotional disturbance3 and that his capacity to appreciate the
3. Section 921.141(6)(b), Fla. Stat. (2005).
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criminality of his conduct or conform his conduct to requirements of law was
substantially impaired.4 Carter also contends that an expert could have disproved
the statutory aggravator that the murder was cold, calculated, and premeditated.5
In support of this argument in the postconviction proceeding, Carter
presented the testimony of Dr. Francisco Gomez, a forensic clinical and
neuropsychologist who evaluated Carter and submitted a report as to his
conclusions. Dr. Gomez testified at the evidentiary hearing about Carter’s “risk
and protective factors” that affect an individual’s behavior later in life. He
explained that the research into the effect of these risk and protective factors was
conducted in relation to a study by the United States Department of Justice
assessing risk factors for juvenile violence, as well as protective factors in a
juvenile’s life. He agreed that Carter was not a juvenile, being in his mid-forties
when he committed these crimes, and that Carter had an average IQ and attended
college, both of which tend to negate the effect of the risk factors. Dr. Gomez
opined, however, that the study was still relevant to assess the risk factors in
Carter’s life, in spite of his higher education and older age.
4. Section 921.141(6)(f), Fla. Stat. (2005).
5. Section 921.141(5)(i), Fla. Stat. (2005).
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Dr. Gomez concluded that Carter’s life history showed he had significant
risk factors for mental health problems, alcohol abuse, and violence. Dr. Gomez
testified that he found risk factors in Carter’s life, including childhood
maltreatment, poor family management, lack of structure and discipline, and low
levels of parental involvement. He testified that Carter was affected by his father’s
neglect and then abandonment, and by his mother’s depression, which caused her
to be less emotionally connected. Dr. Gomez reported that Carter developed
significant pathology around being abandoned. Dr. Gomez also noted Carter’s
exposure to domestic violence, family mental illness, and family dysfunction.
Carter experienced family instability as a child and lacked any close male figures
in his life. The family moved often after Carter’s parents’ divorce, and their
economic situation was poor. His mother remarried, but Carter’s stepfather was an
alcoholic and verbally abusive.
Dr. Gomez also identified some protective factors in Carter’s life and
background. These included Carter’s average intelligence, his lack of any
psychopathy, and the facts that he did not lack empathy, that he attended school,
that people liked him, that he did not have a long antisocial history of fighting or
breaking the law, and that he was not extremely irresponsible. Dr. Gomez noted
that Carter served in the United States Air Force after high school and then
attended college—one year at Western Oklahoma State College and three years at
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the Oklahoma State University. However, Dr. Gomez was unaware of the full
extent of Carter’s past history of violence.
Dr. Gomez’s report concluded that Carter had a cognitive disorder not
otherwise specified (hyperactivity and impairments in executive functioning,
memory, inhibiting impulses, and organizing behavior) and borderline personality
disorder (impulsivity, strong emotional reactions to fear of abandonment, and
dramatic behavior). Dr. Gomez opined that Carter’s criminal behavior was a result
of the combination of his risk and protective factors and that when the protective
factors broke down and Carter was placed in stressful situations, he would be
capable of criminal action as occurred in this case. After all the testing was
complete, Dr. Gomez concluded that Carter “may become overwhelmed in
situations that are emotionally charged and will tend to react impulsively.”
Dr. Gomez also concluded that “under duress [Carter] may be prone to act out
aggressively” without thinking the situation through, and that because of Carter’s
strong fear of abandonment, he will act in a dramatic and impulsive manner to
avoid losing a loved one. Based on his evaluation of Carter and his consideration
of the risk and protective factors in Carter’s history, Dr. Gomez opined that Carter
met the requirements for two statutory mental mitigators—that the defendant was
under the influence of extreme mental or emotional disturbance and the
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defendant’s capacity to appreciate the criminality of his conduct or to conform it to
the requirements of law was substantially impaired.
Dr. Gomez agreed in his testimony that all the risk and protective factors
were contained in the information reviewed before trial by Drs. Krop and Miller,
two of the three experts retained by trial counsel but not presented in the penalty
phase. Dr. Gomez testified that the trial experts “did what I did and what a normal
psychologist does or a forensic psychologist. They took . . . his family’s history,
his mental health history, his social history, his education history, his schooling
history.” The circuit court denied relief on this claim, finding that although the
experts retained by trial counsel were not presented at trial, the substance of the
risk and protective factors discussed by Dr. Gomez was contained in the lay
witnesses’ testimony in the penalty phase, in which the mitigation witnesses
testified about Carter’s unstable family life, his childhood, education, and work
history. We agree.
For instance, Carter’s brother Clifton Michael Carter testified at the penalty
phase that their father was often absent and, when home, was violent toward their
mother. Their mother was subservient, did not drive, did not work outside the
home, and was totally dependent on their father. He said that all the family
members were afraid of their father, although he never saw their father abuse
Carter. Their father left and never returned when Carter was about ten years old.
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Michael Carter testified that the family moved around a lot and their mother
eventually remarried.
Carter’s sister Cynthia Starling testified that when Carter had a broken arm,
she witnessed their father become angry about it and violently throw Carter on the
bed. After their father left, the family’s life was difficult without his financial
support, and her brothers held part-time jobs to help support the family. While in
high school, Carter worked in a pool hall, a grocery store, and in the school
cafeteria. When their father remarried a woman named Lura Lee, who owned
citrus groves and a summer horse camp for children, the siblings went to visit them
a number of times during summers and helped run the camp. Starling testified that
their father continued to be cold and distant from them. One of Lee’s children, Jo
Larkin, testified that when Carter’s father married her mother and moved to the
ranch, he was a “destructive individual” who was violent and mean to the family.
She said he was verbally and physically abusive to Lee and to some of the
children, and was cruel to some of the horses on the ranch. She said his actions
and cruelty to the family had a lasting negative effect on the children, and she and
one of her sisters required therapy because of Carter’s father.
Carter’s sister Cynthia also testified during the penalty phase that there came
a time when their mother took an overdose of pills and had to be hospitalized in a
mental health facility in 1970 when Carter was in high school. Their mother
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continued to be depressed but remarried when Carter was in high school. After
that, their mother was able to drive and hold a job, although the children continued
to worry about her mental state and would check her medications frequently.
Cynthia testified that they were better off financially after the remarriage, but their
stepfather was an alcoholic who was abusive when intoxicated, and was a racist.
She also testified that Carter was a loving brother who was close to her and her
sons.
Farrell Clay, Carter’s uncle, testified at the penalty phase that Carter’s father
was frequently absent and did not support the family financially, causing them to
have great financial hardship. He also testified about Carter’s mother’s depression,
her gentle manner, and her dependent, subservient relationship with Carter’s father.
Carter’s aunt Georgia Coggins gave similar testimony, and testified about Carter’s
mother’s depression and treatment. Gussie Clay, a relative by marriage to Carter’s
mother, testified about the poor financial condition of Carter’s family after the
father abandoned them. She later helped Carter’s mother get a job at a mill where
she worked until retirement.
Brenda Barron, a teacher from Carter’s high school, testified that Carter was
a respectful student who was involved in sports and other school activities such as
science club, letter club, drama, and football homecoming court. She said he was
very popular with the other students. Ronald Lowe, the football coach from
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Carter’s high school, testified that Carter was a lifeguard one summer at the Lions
Club swimming pool that Lowe managed. He testified that Carter saved the life of
a young child that summer. John Thornton testified that Carter worked for him in
a supermarket while attending Western Oklahoma State College, which was
described as a community college. He said Carter was a good employee, well-
liked, reliable, energetic, and trustworthy. They were close in age, and played
sports and dove hunted together outside of work. John Bayless and Mel Wright,
who both taught Health and Physical Education at Oklahoma State University,
testified about Carter’s generally good college grades, and the fact that Carter was
elected president of the “Majors Club,” which was an important club for health and
physical education majors. Carter also helped with the Special Olympics.
These witnesses were only a small fraction of the twenty-seven mitigation
witnesses presented by trial counsel, which included employers who testified about
Carter’s good employment characteristics, jail personnel who testified he was a
good inmate,6 and jail inmates who gave favorable evidence about Carter. It can
be seen, as the postconviction court found, that this penalty-phase testimony gave
the jury factual information concerning what Dr. Gomez characterized as the
6. Trial counsel also presented Michelle Fletcher, a pretrial detention
facility corrections officer, at the Spencer hearing to testify to Carter’s behavior in
jail, and how he counseled other inmates and got along well with jail personnel.
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various risk and protective factors that affected Carter’s life growing up and into
young adulthood. Carter contends, however, that trial counsel should have
presented a mental health expert to connect all these factors and explain how they
may have led to Carter’s condition at age forty-seven when he shot and killed
Reed, Pafford, and Reed’s daughter, Smith.
Carter contends that the expert testimony would have supported the statutory
mental health mitigators and would have placed his nonstatutory mitigation in a
proper framework to be better understood by the jury, resulting in less severe
sentences. However, the United States Supreme Court has rejected a similar
argument that the prejudice prong was met where counsel failed to present an
expert witness to “make connections between the various themes in the mitigation
case and explain to the jury how they could have contributed to [the defendant’s]
involvement in criminal activity.” Wong v. Belmontes, 558 U.S. 15, 23 (2009)
(quoting Belmontes v. Ayers, 529 F.3d 834, 853 (9th Cir. 2008)). The Supreme
Court reasoned that such evidence was not complex or technical and required only
that the jury make logical connections of the kind a layperson is well equipped to
make. Belmontes, 558 U.S. at 24. The Supreme Court also noted, “What is more,
expert testimony discussing Belmontes’ mental state, seeking to explain his
behavior, or putting it in some favorable context would have exposed Belmontes to
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the [negative] evidence” of past suspected crimes. Id. at 24. These same
conclusions apply in this case.
In addition, in the present case, the risk and protective factors testimony of
the type given by Dr. Gomez was derived from a study of factors predictive of
juvenile violence. And, Dr. Gomez conceded, if a person has an average IQ, gets
older, and goes to college, there is less correlation between the early risk factors
and later violence. Carter was in his mid-forties when this crime occurred, has an
average IQ, attended college where he did well, and held a number of responsible
jobs. Carter also contends Dr. Gomez’s testimony was critical because it explained
why Carter flew into a rage and impulsively shot three people. However, in Dr.
Gomez’s testimony and in his report, he characterizes Carter’s actions as aberrant.
Under that definition, further explanation and attempts to connect early risk and
protective factors to Carter’s actions years later in the multiple murders would
have little predictive value because aberrant behavior is by nature unpredictable
behavior. For this reason alone, the mitigation evidence proposed by Dr. Gomez
was not substantial or compelling. Moreover, if expert testimony such as that
presented by Dr. Gomez were admitted, it would open the door to several
extremely violent past actions committed by Carter. As the court below found,
when separated from his ex-wife, Defendant donned a mask, went to
her home, held her at knifepoint, and threatened to kill her. Another
incident of domestic violence in Illinois led to anger management
courses. Additionally, there was an allegation that when Defendant
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was employed by a carnival he was involved in an aggravated assault.
Defense counsel determined that it was necessary to prevent this
information from being brought out during the guilt or penalty
phase. . . . Defendant agreed with counsel’s penalty phase strategy.
The Eleventh Circuit has reiterated that “it is reasonable to conclude that a
defendant was not prejudiced when his mitigation evidence ‘was a two-edged
sword or would have opened the door to damaging evidence.’ ” Evans v. Sec’y,
Dept of Corr., 703 F.3d 1316, 1327 (11th Cir.) (quoting Ponticelli v. Sec’y, Fla.
Dep’t of Corr., 690 F.3d 1271, 1296 (11th Cir. 2012)), cert. denied 133 S. Ct. 2742(2013). The expert mitigation proposed by postconviction counsel and rejected by
trial counsel was just such a “two-edged sword.”
This case does not present the situation where counsel completely failed to
investigate mental health mitigation. Cf. Hurst v. State, 18 So. 3d 975, 1015 (Fla.
2009) (new penalty phase granted where trial counsel failed to investigate mental
mitigation in spite of evidence that such examination was indicated, and where
there was no countervailing “double-edged sword”). Trial counsel in Carter’s case
did retain mental health experts and had full evaluations performed on Carter in
order to discover any meaningful mental health mitigation. Counsel retained
Dr. Harry Krop, a psychologist, who performed extensive testing7 and evaluation
7. The following tests were conducted: Wechsler Memory Scale III
Abbreviated; Wechsler Abbreviated Scale of Intelligence; Aphasia Screening
Evaluation; Bender-Gestalt Recall, Finger Tapping Test, Trail Making Test;
Booklet Categories Test; Wisconsin Card Sort; and the Test of Memory
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of Carter prior to trial. At the evidentiary hearing, trial counsel characterized
Dr. Krop as a very qualified and experienced expert who has testified numerous
times in death penalty cases. Dr. Krop compiled historical information about
Carter and his family, and was given information on Carter that contained all the
facts that Dr. Gomez called “risk factors.” Defense counsel also retained another
mental health expert, Dr. Miller, to further evaluate Carter for possible mental
health mitigation, and neurologist David P. McCraney, who arranged for an MRI
examination and a PET scan to be conducted on Carter.
Trial counsel Alan Chipperfield testified that the defense did not present
Dr. Krop at trial because his conclusion was not helpful and would have subjected
Carter to an evaluation by the State’s experts, resulting in the likely disclosure of
the violent incident with Carter’s former wife and other past incidents of violence.
Chipperfield testified that he had been as thorough as he could be in investigating
possible mental health mitigation, and that the defense strategy in the penalty phase
was to present Carter as “a good guy” who acted out of character on the day of the
murders, and to prevent harmful information about him from coming before the
jury. He did not recall that the defense experts provided any helpful mitigation
Malingering. Dr. Krop noted a deficit in working memory, a mild deficit in
perceptual motor functioning, and mild deficits in areas associated with the frontal
lobe. For these reasons, the MRI and PET scan were performed.
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information, and counsel decided that whatever benefits would be gained from the
experts’ testimony would be outweighed by opening the door to harmful past
incidents. Chipperfield explained that in every penalty phase case, counsel must
balance the good and the bad to maximize the best mitigating evidence, which is
what they were trying to do when they decided not to present Dr. Krop or another
mental health expert at trial.
As to the statutory mitigators of extreme mental or emotional disturbance
and substantial impairment of Carter’s capacity to appreciate the criminality of his
conduct or conform his conduct to the requirements of law, Chipperfield testified
that the defense did not have an expert who would have provided evidence meeting
those statutory mitigators. Thus, counsel decided to present a humanizing defense,
showing Carter to be a good person deserving of life in prison. Chipperfield
explained that Carter was the only defendant he had represented who had worked
every quarter of every year since he was old enough to work, had gone to college,
and served in the Air Force. Carter “had all kinds of good things in his background
that we were able to present and that together with the fact that the crime was
obviously an emotional thing for him. He was in love with this woman and they
had raised children together . . . . Although they weren’t his children he had loved
those children just as if they were his own.”
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Postconviction counsel also presented the testimony of trial cocounsel
William White. He testified at the evidentiary hearing that the defense goal was to
present a “good guy” from a “bad background” defense in the penalty phase. He
said information that was discovered and presented included Carter’s childhood,
social background, educational background, family history, work history, and
family relationships. White testified that when Carter’s father abandoned the
family, the mother was depressed and in dire financial straits. However, Carter
later went to college and did fairly well there, and he had a very positive work
history. White testified that on the day of the murder, Carter reported that he had
taken several pills, presumably Prozac, given to him by the victim Reed. White
said that, according to Carter, he had not slept for thirty-six hours prior to the
murders. Therefore, White and his cocounsel researched the side effects of Prozac,
contacting experts both inside and outside the United States to discover any helpful
mitigation, but nothing helpful was discovered. White also confirmed there were
some events in Carter’s past that could prove harmful if revealed, including prior
arrests and prior criminal acts.
White explained that close to thirty witnesses were called in the penalty
phase and Spencer hearing. Prior to trial, people from Oklahoma State University
were interviewed and depositions were conducted in Georgia, Oklahoma, Kansas,
and, he said, possibly Oregon. He obtained records from Carter’s time at
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Oklahoma State University and obtained some of his medical records. As to
counsels’ planning regarding evidence for possible statutory mitigators, White
testified:
The discussions with our experts didn’t lead us to believe that we
would get strong testimony in support of those and in addition the
factors that we discussed earlier in this testimony today about prior
incidents we were fairly certain that if we had presented those
mitigating circumstances those prior factors would have come to the
fore.
When asked why he did not present any evidence of statutory mitigators at the
Spencer hearing, White testified there was concern that if the defense had
presented that evidence, and if the prior harmful incidents in Carter’s past had been
disclosed, it might have influenced the judge in a negative way and resulted in the
judge not finding the mitigation that he ultimately did find in the sentencing order.
White conceded that the strategy he and Chipperfield developed was not
successful and noted “the temptation is to look back and say should I have done
something else.” However, White testified that his strategy was to avoid bringing
out the negative aspects of Carter’s life. When White was asked if it would have
been beneficial to have an expert put the good and bad aspects of Carter’s life into
a framework that would explain why the bad things occurred, he replied that that
would have been “a strategy that conflicted with the strategy we took,” and
“whether we were right or wrong or whether we did the right thing or not it was a
strategy that conflicted with the strategy we took because to do that we would
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have, we felt, opened the door” to incidents which were very negative. White
testified that he and Chipperfield “spent quite a bit of time” with Carter talking
about the penalty phase and the witnesses to present. He testified that it was his
recollection that Carter agreed with the strategy they formulated.
The circuit court correctly found that trial counsel “conducted a thorough
investigation for mitigation in this case and made a reasonable strategic decision to
forgo expert testimony during the penalty phase and instead present nearly thirty
lay witnesses who highlighted Defendant’s strengths and portrayed him as a ‘good
guy,’ and explained his hardships.” The circuit court also correctly found that
inclusion of expert testimony would have opened the door for rebuttal evidence
regarding negative events in Carter’s past. We agree that the evidence presented
by trial counsel White and Chipperfield at the penalty phase, and their testimony at
the evidentiary hearing, demonstrated that they conducted a thorough mitigation
investigation, including extensive family background information, school records,
employment records, Air Force records, and good jail behavior. Importantly, they
retained three mental health experts to test and evaluate Carter, but based on the
information counsel received from the experts after evaluation and testing, both
trial counsel agreed that the experts would not provide any helpful mitigation, but
would open the door to the highly negative violent incidents in Carter’s past.
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We have repeatedly held that a strategy of humanizing the defendant, and
presenting him as a good individual, can be a reasonable strategic choice if based
on an informed and reasoned plan. We explained in Bradley v. State, 33 So. 3d
664 (Fla. 2010):
Trial counsel painstakingly investigated potential mitigation,
including mental mitigation material. He strategically determined that
presenting all the drug and mental information to the jury would not
be beneficial, would open the door to the prosecution’s cross-
examination concerning it, and would conflict with his theory that
Bradley was generally a hard-working, productive member of society
who had simply deviated from his generally good character. These
informed choices were reasonable strategic decisions. See Card v.
State, 992 So. 2d 810, 816 (Fla. 2008) (concluding that counsel
reasonably utilized lay testimony to attempt to humanize the
defendant); Miller v. State, 926 So. 2d 1243, 1252 (Fla. 2006)
(determining that defense counsel reasonably chose not to present
certain mental health records via testimony of a psychologist and
instead presented the information through sympathetic testimony of
defendant’s family members); Gaskin v. State, 822 So. 2d 1243, 1248
(Fla. 2002) (“Trial counsel will not be held to be deficient when she
makes a reasonable strategic decision to not present mental mitigation
testimony during the penalty phase because it could open the door to
other damaging testimony.”); Rutherford v. State, 727 So. 2d 216,
222-23 (Fla. 1998) (concluding that counsel reasonably made the
decision to focus on defendant’s “solid, ‘Boy Scout’ character traits,”
humanize him, and advance the theory that he was a “ ‘good ol’
fellow’ who must have just lost it”) (quoting trial court’s order);
Haliburton v. Singletary, 691 So. 2d 466, 471 (Fla. 1997)
(determining that trial counsel’s penalty phase strategy to humanize
the defendant and not call any mental health experts was not
ineffective assistance of counsel).
Id. at 679.
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All the positive mitigation trial counsel presented at the penalty phase,
which showed Carter to be a good person who rose from an unfavorable childhood
to be a successful, kind, responsible, well-liked family member, friend, student,
member of the military, and employee, would have been defeated by the negative
information concerning his past acts of violence. Thus, as the circuit court found,
all the mitigation proposed by Carter, when considered as it must be with the
negative information that would have come before the jury, leads to the conclusion
that there is no reasonable probability the jury would have recommended or the
judge would have imposed a life sentence—a reasonable probability being one
sufficient to undermine the Court’s confidence in the result. The circuit court also
correctly found that counsel was not obligated to change their “good guy,”
humanizing strategy at the Spencer hearing.
As we held in Bradley, trial counsel, who reasonably presented a
humanizing, “good guy” defense during the penalty phase after thorough
investigation, did not have an obligation to change that strategy at the Spencer
hearing to show the defendant as violent and abusive. 33 So. 3d at 679-80. As in
Bradley, the fact that the chosen mitigation strategy did not prevail “does not
render the strategy unreasonable or deficient.” Id. at 680. Nor does the fact that
Carter has now obtained a mental health expert with a different or more favorable
opinion render deficient trial counsel’s decision not to present the mental health
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experts retained at the time of trial. We explained in Wheeler v. State, 124 So. 3d
865 (Fla. 2013),
To the extent that Dr. Smith’s testimony is more favorable, this
Court has repeatedly held that “a defendant cannot establish that trial
counsel was ineffective in obtaining and presenting mental mitigation
merely by presenting a new expert who has a more favorable report.”
Wyatt v. State, 78 So. 3d 512, 533 (Fla. 2011); see also Peede v. State,
955 So. 2d 480, 494 (Fla. 2007) (“The fact that Peede produced more
favorable expert testimony at his evidentiary hearing is not reason
enough to deem trial counsel ineffective.”).
Id. at 885. Counsel cannot be found deficient for relying on the evaluations of
qualified mental health experts, “even if, in retrospect, those evaluations may not
have been as complete as others may desire.” Jennings v. State, 123 So. 3d 1101,
1116 (Fla. 2013) (quoting Darling v. State, 966 So. 2d 366, 377 (Fla. 2007)).
In this case, Carter has not suggested that the mental health experts retained
and relied on by trial counsel were not qualified. Indeed, this Court has referred to
Dr. Harry Krop, one of Carter’s experts retained by trial counsel, as “an
experienced and well-documented expert.” Floyd v. State, 18 So. 3d 432, 453 (Fla.
2009). In 2000, we noted that Dr. Krop was “an experienced expert witness who
has evaluated over 400 patients to determine competency and mitigation, and has
testified on behalf of defendants in over 45 cases.” Patton v. State, 784 So. 2d 380,
392 (Fla. 2000). Trial counsel in this case was entitled to rely on the retained
experts’ evaluations and to make a reasoned decision not to present expert
testimony that would not be particularly mitigating, but which would, as
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Dr. Gomez conceded, open the door to evidence of extremely negative acts
committed by Carter in the past.
Based on the record in this case and the circuit court’s comprehensive
evidentiary hearing, we find that Carter has failed to meet either prong of
Strickland necessary to establish ineffective assistance of counsel. Accordingly,
relief is denied on this claim.
Change of Venue
In Carter’s second claim on appeal, he contends that trial counsel was
ineffective in failing to move for a change of venue. In supporting such a claim,
the defendant “must, at a minimum, ‘bring forth evidence demonstrating that the
trial court would have, or at least should have, granted a motion for change of
venue if [defense] counsel had presented such a motion to the court.’ ” Dillbeck v.
State, 964 So. 2d 95, 104 (Fla. 2007) (quoting Wike v. State, 813 So. 2d 12, 18
(Fla. 2002)); see also Taylor v. State, 120 So. 3d 540, 551 (Fla. 2013), cert. denied,
134 S. Ct. 1009 (2014). We have explained the standard for a change of venue as
follows:
Knowledge of the incident because of its notoriety is not, in and
of itself, grounds for a change of venue. The test for determining a
change of venue is whether the general state of mind of the inhabitants
of a community is so infected by knowledge of the incident and
accompanying prejudice, bias, and preconceived opinions that the
jurors could not possibly put these matters out of their minds and try
the case solely on the evidence presented in the courtroom.
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Franklin v. State, 137 So. 3d 969, 986 (Fla. 2014) (quoting McCaskill v. State, 344
So. 2d 1276, 1278 (Fla. 1977) (quoting Kelly v. State, 212 So. 2d 27, 28 (Fla. 2d
DCA 1968))). The extent and nature of the publicity and the difficulty actually
encountered in selecting a jury are critical factors for consideration by the court.
Rolling v. State, 695 So. 2d 278, 285 (Fla. 1997). If the defendant shows no undue
difficulties in selecting a fair and impartial jury, then no legal basis would have
existed for a change of venue—and trial counsel would not have been deficient in
failing to move for one.
The circuit court granted an evidentiary hearing on this claim, but the State
contends that Carter waived this claim by abandoning it at the evidentiary hearing
and presenting no evidence. At the evidentiary hearing, Carter did not question
trial counsel about the decision not to file a motion for change of venue. Further,
postconviction counsel did not introduce into evidence any of the many news
articles that he cites in his postconviction motion as evidence of the prejudicial
publicity that he contends required a change of venue. Thus, the circuit court was
correct in denying relief in part on the finding that Carter failed to submit any
evidence of the alleged inflammatory news articles and stories. However, the
circuit court did not deny relief solely on the basis of waiver, but instead ruled on
the merits that a fair and impartial jury was selected and that trial counsel had no
legal grounds to move for a change of venue. On cross-examination at the
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evidentiary hearing, trial counsel White was asked why he did not move for a
change of venue. He testified that he did not do so because he believed the law
required proof of pervasive absorption of the details of the case into the psyche of
the community and a showing of a kind of “circus atmosphere.” White said, “We
didn’t have that.” White also testified that he believed an effort had to be made to
pick a jury before a motion for change of venue would be warranted.
In denying the claim that trial counsel was ineffective in failing to move for
a change of venue, the circuit court found that a significant amount of time elapsed
between the crimes and the trial in September 2005, and noted that news coverage
in PEOPLE magazine occurred in 2003, and the “America’s Most Wanted”
television show on which the crimes were featured occurred in 2004. The court
found that of the over seventy potential jurors, individual voir dire was conducted
with thirty-five who said they had some prior knowledge of the case. Based on the
record, the postconviction court concluded that the jurors had limited extrinsic
knowledge of the case, none had a sufficient personal connection to infer
prejudice, and all jurors with prior knowledge stated unequivocally that they had
not formed any opinions and could render a fair and impartial verdict solely on the
evidence presented at trial. The circuit court also noted that defense counsel
exhausted all peremptories and that Carter approved the final jury that was
selected. Thus, the circuit court held that Carter did not meet the test for
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ineffective assistance of counsel because the record demonstrates that an impartial
jury was seated and that, even if a motion had been made, it would not or should
not have been granted. We agree.
In the widely publicized and infamous case of Rolling, we recognized that
“pretrial publicity is normal and expected in certain kinds of cases, like this one,
and that fact standing alone will not require a change of venue.” Rolling, 695 So.
2d at 285. We held that the first prong of the analysis requires that certain factors
must be evaluated to determine if a change of venue should have been granted.
The second prong of the analysis requires the trial court to examine the extent of
difficulty in actually selecting an impartial jury at voir dire. Id. “If voir dire shows
that it is impossible to select jurors who will decide the case on the basis of the
evidence, rather than the jurors’ extrinsic knowledge, then a change of venue is
required.” Id. “The ability to seat an impartial jury in a high-profile case may be
demonstrated by either a lack of extrinsic knowledge among members of the venire
or, assuming such knowledge, a lack of partiality.” Id.In a similarly widely publicized case, Foster v. State, 778 So. 2d 906 (Fla.
2000), Foster produced voluminous newspaper articles and television accounts of
the crime, most of which were published two years before the trial. Id. at 914. In
Foster, similar to the instant case, most of the veniremen stated that they had heard
something about the case through the media. As in this case, the trial court
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eliminated all those who stated that their fixed opinions would prevent them from
reviewing the evidence in a fair manner; and the jurors who were selected all stated
they could be fair and set aside what they heard. Id. We held on appeal that a
change of venue was not required in Foster because the record did “not indicate
that the community was so infected by the media coverage of this case that an
impartial jury could not be impaneled, and an impartial jury appears to have been
actually seated.” Id.In a postconviction context such as this one, where postconviction counsel
failed to demonstrate there was a legal basis for filing a motion for change of
venue, and where the record reflects no undue difficulty in selecting an impartial
jury, trial counsel is not ineffective in failing to move for a change of venue. See
Dillbeck, 964 So. 2d at 104. We also emphasized in Griffin v. State, 866 So. 2d 1(Fla. 2003), that postconviction counsel must bring forth evidence to demonstrate
that there is a reasonable probability that the trial court would have, or at least
should have, granted a motion for change of venue if one had been filed. Id. at 12.
The circuit court was correct in finding, based on the record in this case, that
if trial counsel had filed a motion for change of venue, there is no reasonable
probability that the motion would have, or should have, been granted. The trial
court questioned all the jurors individually who responded that they had some prior
knowledge of the case. Each one indicated that they could not recall many
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specifics of the case and had not formed any opinions about Carter’s guilt or
innocence.
Juror O’Neill, who served as an alternate, was one of the jurors who was
questioned separately. He explained that he did have some familiarity with victim
Pafford, who managed some of the Publix stores where O’Neill had shopped. He
did not know Pafford as a personal friend, but had only casual contact with him
when making purchases. Juror O’Neill said he could put aside what he knew of
the case from news articles, and that his knowledge of Pafford would not impact
his ability to be fair. Furthermore, alternate juror O’Neill was not called on to
deliberate in this case.
It can be seen that the trial court was careful to question the jurors
separately, and the record shows that it was not impossible or even difficult to seat
a jury that could be fair and impartial and decide the case solely on the law and
evidence presented. For this reason, trial counsel was not deficient in failing to file
a motion for change of venue. Moreover, Carter has not demonstrated—in light of
the record and the case law—that such a motion would have, or should have, been
granted. Because Carter failed to provide evidence to support his claim of
ineffective assistance of counsel in not moving for a change of venue, and because
the record demonstrates that a fair and impartial jury was seated after substantial
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individual voir dire in which the jurors confirmed that they would decide the case
solely on the evidence presented, the circuit court correctly denied the claim.
CONCLUSION
For the foregoing reasons, we affirm the circuit court’s order denying
postconviction relief on all claims.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Duval County,
Lance Manning Day, Judge - Case No. 162004CF000730AXXXM
Frank John Tassone, Jr. of Tassone & Dreicer, LLC., Jacksonville, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, and Charmaine Millsaps, Assistant Attorney
General, Tallahassee, Florida,
for Appellee
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