Tavares J. Wright v. State of Florida – Revised Opinion on Rehearing , 213 So. 3d 881 ( 2017 )

Supreme Court of Florida
____________
No. SC13-1213
____________
TAVARES J. WRIGHT,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[March 16, 2017]
REVISED OPINION
PER CURIAM.
This case is before the Court on appeal from an order denying Tavares
Jarrod Wright’s initial motion to vacate his convictions and sentences under
Florida Rule of Criminal Procedure 3.851, as well as Wright’s renewed motion to
determine intellectual disability filed pursuant to Florida Rule of Criminal
Procedure 3.203. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
FACTS AND BACKGROUND
On November 13, 2004, a jury found Wright guilty of two counts of first-
degree murder, two counts of kidnapping, two counts of robbery, and one count of
carjacking. See Wright v. State, 19 So. 3d 277, 289 (Fla. 2009). After Wright
waived his right to a penalty phase jury, the trial court sentenced Wright to death
for each murder, as well as life imprisonment for each of his other convictions.
See id. at 289-91.
On direct appeal before this Court, we detailed the facts leading up to
Wright’s convictions and sentences:
With the aid of codefendant Samuel Pitts, Wright carjacked,
kidnapped, robbed, and murdered David Green and James Felker
while engaged in a three-day crime spree that spanned several areas in
Central Florida. [FN2] During the crime spree, Wright was
connected multiple times to a stolen pistol that matched the caliber of
casings discovered at the scene of the murders. The trial court
allowed the State to present evidence of these collateral acts to
demonstrate the context in which the murders occurred and to explain
Wright’s possession of the murder weapon.
[FN2] Wright and Pitts were tried separately for
the murders. Pitts was convicted of two counts of first-
degree murder and other offenses related to this incident.
He received sentences of life imprisonment for the
murders.
The spree began when Wright stole a pistol and a shotgun from
the Shank family’s residence in Lakeland on Thursday, April 20,
2000. On the Friday morning following the burglary, Wright used the
pistol to commit a drive-by shooting in a neighborhood near the
Shank residence. [FN3] That evening, Wright and Samuel Pitts
abducted Green and Felker in Lakeland, drove Green’s vehicle
approximately fifteen miles to Polk City, and murdered the victims in
a remote orange grove. Wright shot one victim with a shotgun, which
was never recovered, and the other victim with a pistol that used the
same caliber bullets as the gun stolen from the Shank residence.
Wright then abandoned the victim’s vehicle in a different orange
grove in Auburndale. In nearby Winter Haven, Wright used the
Shank pistol in a carjacking that occurred during the morning hours
on Saturday, April 21, 2000. That afternoon, law enforcement
-2-
responded to a Lakeland apartment complex based on reports of a
man matching Wright’s description brandishing a firearm.
[FN3] For the drive-by shooting, Wright was
convicted of attempted second-degree murder and two
counts of attempted felony murder.
When an officer approached, Wright fled, but he was eventually
arrested in the neighboring mobile home park. Ammunition matching
the characteristics of the ammunition stolen from the Shank residence
was found in his pocket. The stolen pistol was also recovered near the
location where Wright was arrested. Almost a week later, the bodies
of the victims were discovered. Thus, the following facts are
presented in chronological order to demonstrate the geographical
nexus of the offenses and to provide a complete picture of the
interwoven events surrounding the double murders.
The Crime Spree
The Shank Burglary: Thursday, April 20, 2000
On Thursday, April 20, 2000, Wright unlawfully entered a
Lakeland home with two accomplices. Wright testified that they
separated to search the house for items to steal. In one bedroom,
Wright found and handled a plastic bank filled with money. One of
his accomplices discovered a 12-gauge, bolt-action Mossberg shotgun
and a loaded Bryco Arms .380 semi-automatic pistol with a nine-
round clip in another bedroom. . . . The accomplice also found four
shells for the shotgun in a dresser drawer. In exchange for marijuana,
Wright obtained possession of the pistol from the accomplice.
When Mark Shank returned home after work to discover his
firearms missing, he notified the Polk County Sheriff’s Office of the
burglary. The Sheriff’s Office lifted latent prints from the house,
including several from the plastic bank. An identification technician
with the Sheriff’s Office matched the latent palm print lifted from the
plastic bank to Wright’s palm print, confirming that Wright was inside
the house where the Shank firearms were stolen. The following day,
Wright used the stolen pistol during a drive-by shooting in a nearby
Lakeland neighborhood.
-3-
The Longfellow Boulevard Drive-By Shooting: Friday, April 21,
2000
At approximately 9 a.m. on Friday, April 21, 2000, Carlos
Coney and Bennie Joiner observed a black Toyota Corolla
approaching slowly on Longfellow Boulevard as they were standing
outside a nearby house. Wright and Coney had been embroiled in a
continuing dispute since their high school days. Joiner made eye
contact with Wright, who was sitting on the passenger side. The car
made a U-turn and slowly approached the house again. Wright leaned
out the passenger side window and fired multiple shots. One bullet
struck Coney in his right leg. Coney’s neighbor carried the wounded
man to a car and drove Coney and Joiner to a Lakeland hospital where
a .380 caliber projectile was removed from Coney’s leg.
While Coney was being treated at the hospital, crime-scene
technicians collected cartridge casings and projectiles from the
Longfellow Boulevard scene. Two projectiles had entered the house
and lodged in the living room wall and table. One spent .25 caliber
casing and three spent Winchester .380 caliber casings were recovered
from the driveway and the street. The projectile recovered from
Coney’s leg and the one removed from the living room table were
fired from the .380 pistol stolen from the Shank residence. [FN5]
The recovered casings definitely had been loaded in the stolen pistol,
but the firearms analyst could not state with precision that they had
been fired from the pistol because the casings lacked the necessary
identifying characteristics.
[FN5] However, a .380 handgun could not have
fired the .25 caliber bullet. No explanation for the
different shell casing was presented at trial, though it was
implied by the defense that an exchange of gunfire
occurred between Wright and the victims. Coney and
Joiner denied having a firearm at the Longfellow
Boulevard residence.
Approximately one hour after the drive-by shooting, Wright
unexpectedly visited James Hogan at a house in Lake Alfred, Florida.
Lake Alfred is approximately fourteen miles away from the
-4-
Longfellow Boulevard location. Wright testified that he and an
accomplice from the Shank burglary and Samuel Pitts traveled to see
Hogan because the accomplice wanted to sell the stolen shotgun.
When they arrived, the accomplice attempted to show Hogan the
shotgun, but Hogan was not interested. At that point, Wright pulled a
small pistol from under the floor mat in the front seat of the vehicle.
This placed Wright in possession of the possible murder weapon on
the day of the murders.
The Double Murders in the Orange Grove: Friday, April 21, 2000
The trio remained with Hogan for approximately twenty
minutes and then left together to return to the Providence Reserve
Apartments on the north side of Lakeland. Wright and Samuel Pitts
lived at that apartment complex with Pitts’ family and girlfriend,
Latasha Jackson. To support his theory of defense that he did not
possess the pistol during the time the murders likely occurred, Wright
testified that following the drive-by shooting, he informed Samuel
Pitts of the details of the shooting. Wright explained that he had an
obligation to disclose his actions to Pitts, who was the leader of a gang
of which Wright was a member. According to Wright, the drive-by
shooting upset Pitts, and Pitts demanded that Wright surrender the
pistol. Wright asserted that he complied with Pitts’ demand.
According to Wright’s testimony, around twilight that Friday
evening, a customer messaged Wright to inquire about procuring
marijuana. Wright agreed to meet the customer at a supermarket
parking lot and started walking toward the store. Shortly after 7:15
that evening, a female friend saw Wright walking down the street and
offered him a ride, which Wright accepted. Then, without
provocation, Wright said, “I ain’t even going to lie, I did shoot the boy
in the leg yesterday,” more likely than not referring to the Longfellow
Boulevard drive-by shooting. When they arrived at the store, Wright
exited the vehicle in the supermarket parking lot without further
elaboration of the statement.
Some time that night, James Felker and his cousin, David
Green, were abducted from that parking lot and murdered. The
cousins left Felker’s house at approximately 8 p.m. in Green’s white
-5-
Chrysler Cirrus for a night of bowling. Both men were carrying at
least $100 at that time.
Several witnesses testified that Wright had willingly described
the details of the abduction. Wright had informed the witnesses that
he approached Felker and Green in the supermarket parking lot and
requested a cigarette. When they refused, Wright pulled out a pistol
and forced his way into the backseat of Green’s vehicle. Wright then
ordered Green to drive to the Providence Reserve Apartments, where
Pitts entered the vehicle.
As this group left the apartments between 10 and 10:45 p.m.,
Wright ran a stop sign in the victim’s car. A detective observed the
traffic infraction and conducted a tag check as he followed the
vehicle. The tag check reported that the license plate was registered
to an unassigned Virginia plate for a blue, 1988, two-door Mercury,
which did not match the vehicle to which it was attached.
After receiving this report, the detective activated his
emergency lights and attempted to stop the white Chrysler. The
Chrysler sped through another stop sign and accelerated to sixty miles
per hour. The detective remained in pursuit for ten to fifteen minutes
before his supervisor ordered the pursuit terminated. An all-county
alert was issued to law enforcement to be on the lookout for the
Chrysler. The identification developed from the pursuit connected
Wright to the victim’s vehicle on the night of the murders.
R.R., a juvenile who also lived at the Providence Reserve
Apartments, testified that Wright informed him that Wright and Pitts
drove the victims ten miles from the abduction site to a remote orange
grove in Polk City. When the victims insisted that they had nothing to
give the assailants, Wright exited the car. One of the victims also
exited, possibly by force, and Wright shot him. The other victim then
exited, and Wright shot him as well. While one of the men continued
to crawl and moan, Pitts retrieved the shotgun from the trunk and
handed it to Wright, who then shot this victim in the head execution-
style. Wright and Pitts abandoned the bodies and drove away in the
Chrysler. [FN6]
-6-
[FN6] Wright testified, to the contrary, that after
he arrived at the supermarket, he conducted a drug
transaction and then visited other apartments in the area
to sell more drugs. After making stops at various
apartments, he began walking back to the Providence
Reserve Apartments. While he was walking, Pitts drove
up in a white vehicle. Pitts asked Wright if he wanted to
drive, and as Wright walked to the driver’s side, he
noticed blood on the vehicle. Wright suggested that they
take the vehicle to an apartment to wash it. Wright
testified that it was while they were driving to the
apartment that the police chase occurred.
Sometime between 10 p.m. and midnight, Pitts and Wright
drove the Chrysler to a Lakeland apartment complex to wash blood
spatter off the vehicle. When they arrived at the apartment, Pitts
ordered Wright to wash the car while Pitts removed items from the
vehicle, including a phone, a black bag, and a Polaroid camera. Pitts
placed the items in his sister’s vehicle. She had arrived with R.R.,
who testified that when they arrived, Pitts and Wright were acting
nervous and scared. On the ride back to the apartment complex, Pitts
told R.R. “that they pulled off a lick and that things was getting
crazy.”
Wright testified that before Pitts left, he ordered Wright to burn
the car and throw the weapon into a lake. Instead, Wright kept the
pistol and later drove back to Hogan’s house in Lake Alfred. Hogan
suggested that Wright dump the car in an Auburndale orange grove,
and Wright followed that suggestion.
The Winter Haven Carjacking: Saturday, April 22, 2000
In the vicinity of the Auburndale orange grove where the
homicide victim’s vehicle was abandoned, Ernesto Mendoza and
Adam Granados were addressing a car battery problem in the parking
lot of a fast-food restaurant. It was during those early morning hours
of Saturday, April 21, that Wright allegedly approached them, pointed
a small handgun at a female with them, and announced that he was
going to take the car. [FN7] Wright immediately entered Mendoza’s
vehicle and sped away. Granados and Mendoza quickly entered a
-7-
truck and pursued Wright. The car chase continued through several
streets before Wright ran the vehicle onto the curb near a car
dealership in Lake Alfred. Wright exited the vehicle, fired several
gunshots at Granados and Mendoza, and then escaped across the car
lot in the direction of James Hogan’s house.
[FN7] Wright refused to testify about the details
of [this] carjacking because he was not charged with this
offense.
Several .380 caliber casings were also collected from this scene.
These casings were later identified as having been fired from the
pistol stolen from the Shank residence. One latent print was lifted
from the interior side of the driver’s window of Mendoza’s car, and
three were lifted from the steering wheel. All of these latent prints
matched Wright’s known fingerprints.
Hogan, whose house was within walking distance of the car
dealership from which Wright was seen fleeing, testified that when he
returned home at approximately 12:30 a.m. on Saturday, he found
Wright seated there. Wright asked Hogan to drive him back to the
Providence Reserve Apartments, and on the way there, Wright
spontaneously said “they had shot these two boys,” and that he had
also “got into it with some Mexicans.” Wright confessed to Hogan
that they had transported two white men to an orange grove and shot
both men with a pistol and a shotgun. Wright also confirmed that they
engaged in a high-speed chase with police in Lakeland. However, at
that point, Wright did not disclose the identity of the other person who
aided in the murders.
The Providence Reserve Foot Chase and Subsequent
Investigation: Saturday, April 22, 2000
After Hogan returned Wright to the apartment complex
following the Winter Haven carjacking, Wright was observed
throughout Saturday handling a pistol at the Providence Reserve
Apartments. He also spoke with people regarding the murders.
Wright confessed to R.R. that he received a cellular phone from a
“lick,” meaning it had been stolen. He also described to R.R. the
-8-
details of the abduction and murders. Wright then gave the stolen
phone to R.R.
Later that day, Wright was seated with Latasha Jackson on the
steps of the apartment building, and Wright had a small firearm
resting in his lap. During their conversation, Wright told Jackson that
he shot two white men in an orange grove and that he had shot one in
the head. Soon after this, the police responded to a report of an armed
man, who matched Wright’s description, at that location. [FN8]
[FN8] Wright was charged with aggravated
assault related to this incident, but was acquitted.
A uniformed officer approached Wright and Jackson and stated
that he needed to speak with Wright. Wright jumped over the balcony
railing and raced down the stairs. As Wright ran from the apartment,
his tennis shoes fell off. Jackson picked up the shoes and placed them
by the apartment door. The police later seized these sneakers from the
apartment during the murder investigation. James Felker’s DNA was
determined to match a blood sample secured from the left sneaker.
Though Wright contended that the shoes were not his and that he had
never worn them, both Wright and Pitts were required to try on the
shoes. The shoes were determined to be a better fit for Wright than
for Pitts.
Several officers chased Wright from the Providence Reserve
Apartments to a nearby mobile home park, which was located across a
field from the apartment complex. During the chase, the officers
noticed Wright holding his pants pocket as if he carried something
inside. Wright was arrested at the mobile home park, and his pocket
contained live rounds and a box of ammunition containing both .380
Federal and Winchester caliber of rounds. This was the same caliber
ammunition as that recovered from the drive-by shooting, the
murders, and the carjacking.
After the police departed, a resident of that mobile home park
entered her car to leave for dinner. Her vehicle had been parked there
with the windows down when Wright had been arrested near her front
door. As she entered her vehicle, she discovered a pistol, which was
-9-
not hers. This weapon was determined to be the pistol stolen from the
Shank residence.
Wright was taken into custody pending resolution of the
aggravated assault charges. While Wright was in custody,
Auburndale police officers discovered David Green’s white Chrysler
abandoned in an orange grove. Crime-scene technicians discovered
blood on both the exterior of the vehicle and on the interior left side.
Four of the blood samples from the vehicle matched James Felker’s
DNA profile. Further investigation revealed that prints lifted from
multiple locations on the vehicle matched known prints of Wright.
[FN9]
[FN9] None of the latent prints lifted from the
Chrysler matched the known fingerprints of Pitts or R.R.
A deputy with the Polk County Sheriff’s Office linked this
abandoned vehicle with a missing persons report for David Green and
James Felker. After the vehicle was discovered, the family of the
victims gathered at the orange grove to search for any items that might
aid in the missing persons investigations. Green had his personal
Nextel cellular phone and a soft black bag filled with special
computer tools that he utilized for his work in the Chrysler. A
Polaroid camera had also been left in Green’s vehicle. Green’s
fiancée discovered her son’s jacket in that grove, but Green’s
workbag, tools, cellular phone, and camera were all missing from the
vehicle.
A couple of days after the murders, Pitts attempted to sell the
black bag that contained Green’s computer tools to a pawnshop. R.R.
assisted his stepfather in securing proceeds for the Polaroid camera
from another pawnshop. The police had begun contacting pawnshops
looking for the items missing from Green’s car and recovered the
black computer bag and the pawn tickets, which led them to Pitts and
R.R. [FN10] Further investigation established that three latent
fingerprints from the black bag matched Wright’s known fingerprints.
[FN10] During trial, Green’s fiancée identified the
Polaroid camera as the one she purchased with Green.
She also identified his black workbag.
- 10 -
Following the information obtained from the pawnshop, the
police traveled to R.R.’s residence where they identified and seized
the Nextel cellular phone Wright had given R.R. The phone seized
from R.R.’s residence matched the serial number of David Green’s
phone. R.R. told the police that Wright, who was still in jail on the
aggravated assault arrest, had given him the phone.
A few hours later, a detective questioned Pitts, who revealed the
general location of the bodies. Six days following the disappearance
of David Green and James Felker, their bodies were discovered in a
remote orange grove in Polk City. Each man had been shot three
times, and spent bullet cases surrounded the bodies. David Green was
face-up, with bullet wounds in his chest and in his head. From his
outstretched hand, the police recovered a wallet that contained
Green’s license. James Felker was face-down in the same area, with
three bullet wounds in his head. Green’s cause of death was
determined to be multiple gunshot wounds to the chest, the forehead,
and the back of his neck. A medical examiner removed a projectile
from Green’s face and a deformed projectile from his throat. Felker’s
cause of death was determined to be gunshot wounds to the head, one
by a .380 caliber projectile to the forehead and two by a shotgun blast
to the back of the head. Except for the gunshot wound to Green’s
chest, any of the gunshot wounds would have rendered the victims
unconscious instantaneously.
Law enforcement never recovered the shotgun used in these
murders. However, a Florida Department of Law Enforcement
firearms expert inspected the pistol recovered from the mobile home
park, which was identified as the pistol stolen from the Shank
residence, and the firearms-related evidence collected from the
various crime scenes. The expended projectiles from the pistol and
those found in Wright’s possession were of the same caliber but were
different brands. Due to the damage sustained by some of the
projectiles, the expert was unable to conclusively establish that the
pistol stolen from the Shank residence fired all .380 caliber bullets
discovered at the scene of the murders. However, the projectiles and
the firearm were of the same caliber and displayed similar class
characteristics. Five Federal .380 caliber casings discovered near the
victims were positively identified as having been fired from the pistol.
- 11 -
Thus, the stolen Shank pistol had likely been used in, and connected
with, the Longfellow Boulevard drive-by shooting, the double
murders of David Green and James Felker, and the Winter Haven
carjacking.
The Trial
On October 18, 2004, Wright began his third trial on these
charges. . . . The jury returned a guilty verdict on all seven counts and
made specific findings that Wright used, possessed, and discharged a
firearm, which resulted in death to another. Wright waived his right
to have a penalty-phase jury. The jury was discharged after the trial
court conducted a thorough colloquy and determined that the waiver
was made knowingly, intelligently, and voluntarily.
During the combined penalty-phase and Spencer[ v. State, 615
So. 2d 688 (Fla. 1993),] hearing, the State presented impact
statements from the victims’ families. The State introduced the
certified judgments and sentences from the Longfellow Boulevard
drive-by shooting and from two incidents that occurred while Wright
was imprisoned prior to the capital trial. [FN13] The State also
presented the testimony of the victims of the jail-related felonies.
Defense counsel stipulated that the contemporaneous capital
convictions supported the aggravating circumstance of a prior violent
felony.
[FN13] Prior to the capital trial, Wright was
convicted of two violent felonies while in custody—
aggravated battery by a jail detainee and aggravated
battery. In the former, Wright, along with several other
inmates, attacked another detainee. In the latter, Wright
attacked a jail detention deputy.
The defense presented mitigation evidence of Wright’s
traumatic childhood through the testimony of his family, which
included virtual abandonment and neglect by his parents. Two
defense expert witnesses testified that Wright’s exposure to cocaine
and alcohol in utero caused some microcephaly, which is a condition
that affects the size of the brain, and mild traumatic injury to Wright’s
brain. Though one defense expert determined that Wright has
- 12 -
borderline intellectual functioning, including impairments in his
frontal lobe functioning for reasoning and judgment, the expert
testified that Wright did not satisfy the requirements for statutory
mitigation . . . or qualify as mentally retarded under section 921.137,
Florida Statutes (2000). . . .
To the contrary, the other defense expert testified that Wright
was of low intelligence, which approached that of mental retardation
due to fetal alcohol syndrome. In that expert’s opinion, Wright could
not balance a checkbook, maintain a household, or keep his
refrigerator stocked. However, this expert did not consider the
recognized standardized intelligence tests required by section 921.137
to be the measure of mental retardation and conceded that under the
statutory definition, Wright would not be considered mentally
retarded.
A special hearing was held to specifically address whether
Wright met the statutory criteria for mental retardation. Wright’s
scores from each doctor’s evaluation fell within the borderline range,
but did not drop below 70. Thus, the trial court found that under the
statutory requirements, Wright was not mentally retarded. The court
noted that there was evidence to the contrary, but held that such
evidence did not fall within the purview of the applicable statute.
Following this hearing, the trial court found four aggravating
circumstances, three statutory mitigating circumstances, and several
nonstatutory mitigating circumstances. [FN16] The trial court
concluded that the aggravating circumstances far outweighed the
mitigation and that, even in the absence of any individual aggravating
circumstance, the trial court would still find that the aggregate of the
remaining aggravating circumstances outweighed all existing statutory
and nonstatutory mitigating circumstances. Thus, the court imposed a
death sentence for each count of first-degree murder and life sentences
for each of the five noncapital felonies, all to run consecutively.
[FN16] The trial court found four aggravating
circumstances: (1) Wright was previously convicted of
another capital felony or of a felony involving the use or
threat of violence to a person (great weight); (2) Wright
committed the felony for pecuniary gain (no weight); (3)
- 13 -
Wright committed the homicide in a cold, calculated, and
premeditated manner without any pretense of moral or
legal justification [CCP] (great weight); and (4) Wright
committed the felony for the purpose of avoiding or
preventing lawful arrest (great weight).
The trial court found three statutory mitigating
factors and gave them some weight: (1) Wright
committed the offense while under the influence of
extreme mental or emotional disturbance; (2) Wright’s
capacity to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was
substantially impaired; and (3) Wright was 19 years old
at the time of the crime. Wright offered approximately
34 nonstatutory mitigating factors, and the trial court
found the following: (1) Wright suffered emotional
deprivation during his upbringing (some weight); (2)
Wright’s low IQ affected his judgment and perceptions
(some weight); (3) Wright suffered from neurological
impairments, which affected his impulse control and
reasoning ability (some weight); (4) Wright suffered
from low self-esteem (little weight); (5) Wright lacked
the capacity to maintain healthy, mature relationships
(little weight); (6) Wright had frustration from his
learning disability (little weight); (7) Wright lacked
mature coping skills (some weight); (8) Wright displayed
appropriate courtroom behavior (little weight); and (9)
Wright suffered from substance abuse during his
adolescent and adult life (little weight).
Id. at 283-91 (some footnotes omitted). On September 3, 2009, we affirmed
Wright’s convictions and sentences. See id. at 305.
- 14 -
On November 5, 2010, Wright filed a motion to vacate his judgment and
sentence, which he amended on March 9, 2012. A Huff1 hearing was held on
September 6, 2011, to determine which claims merited an evidentiary hearing. An
evidentiary hearing was held on October 16-18, 2012, during which Wright
presented ten witnesses. The postconviction court denied Wright’s amended
motion in its entirety on May 22, 2013. Wright appealed.
On May 27, 2014, however, while Wright’s postconviction appeal was
pending before this Court, the United States Supreme Court issued its opinion in
Hall v. Florida, in which it held Florida’s intellectual disability scheme
unconstitutional insofar as it conditioned presentation of evidence of adaptive
functioning on a strict IQ score requirement. See 134 S. Ct. 1986, 1990 (2014).
As a result, we relinquished jurisdiction of Wright’s case and allowed Wright to
file a renewed motion for determination of intellectual disability with the
postconviction court, which he did. The postconviction court subsequently granted
an evidentiary hearing on the renewed motion. During the evidentiary hearing for
this motion, Wright presented six witnesses and the State presented thirteen
witnesses. On March 26, 2015, the postconviction court denied Wright’s renewed
motion. Wright subsequently appealed that order and we reacquired jurisdiction.
1. Huff v. State, 622 So. 2d 982 (Fla. 1993).
- 15 -
From his amended motion to vacate judgment and sentences, Wright only
appeals the denial of several claims of ineffective assistance of counsel, as well as
his claim that the cumulative effect of those errors deprived him of a fair trial.2
Specifically, with regard to his guilt phase trial, Wright maintains that his counsel
were ineffective for failing to impeach two jail house informants and for failing to
object to an improper comment made by the prosecutor during closing remarks.
With regard to the penalty phase, Wright maintains that his counsel were
ineffective for failing to challenge evidence related to a prior conviction presented
in aggravation, as well as for failing to adequately investigate and present evidence
of mitigation. From his renewed motion for intellectual disability, Wright appeals
the finding that he is not intellectually disabled.
This review follows.
2. Wright does not appeal the denial of his other claims. With regard to the
guilt phase, Wright had also claimed that: (1) his counsel were ineffective for
failing to object to evidence of other crimes or wrongful acts, for failing to
challenge victim family member testimony identifying certain items in evidence as
belonging to the victims, for failing to investigate alibi witnesses, for failing to
present evidence of fetal alcohol syndrome, and for failing to strike a juror from
the jury; (2) the State unconstitutionally withheld exculpatory evidence; and (3) the
State unconstitutionally presented conflicting theories to the jury. With regard to
the penalty phase, Wright had also claimed that: (1) his counsel were ineffective
for failing to assert that he should receive a life sentence due to the superior
intelligence of his codefendant; (2) section 945.10, Florida Statutes,
unconstitutionally withholds the identity of the execution team members; and (3)
Florida’s lethal injection protocol is unconstitutional.
- 16 -
ANALYSIS
Wright’s Renewed Motion for Determination of Intellectual Disability
The Eighth Amendment to the United States Constitution provides that
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. Const. amend. VIII. In 2002, the United
States Supreme Court interpreted the Eighth Amendment to categorically prohibit
the imposition of a death sentence on someone who is intellectually disabled. See
Atkins v. Virginia, 536 U.S. 304, 321 (2002) (“Construing and applying the Eighth
Amendment in the light of our ‘evolving standards of decency,’ we therefore
conclude that such punishment is excessive and that the Constitution ‘places a
substantive restriction on the State’s power to take the life’ of a mentally retarded
offender.” (quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986))).
State law, however, governs the determination of which defendants are
intellectually disabled for purposes of capital punishment. See id. at 317 (“[W]e
leave to the State[s] the task of developing appropriate ways to enforce the
constitutional restriction upon [their] execution of sentences.” (quoting Ford, 477
U.S. at 405)). In Salazar v. State, 188 So. 3d 799, 811-12 (Fla. 2016), this Court
recently explained Florida’s procedures for establishing and reviewing intellectual
disability:
“Florida law includes a three-prong test for intellectual
disability as a bar to imposition of the death penalty.” Snelgrove v.
- 17 -
State, 107 So. 3d 242, 252 (Fla. 2012). A defendant must establish
intellectual disability by demonstrating the following three factors: (1)
significantly subaverage general intellectual functioning; (2)
concurrent deficits in adaptive behavior; and (3) manifestation of the
condition before age eighteen. See Hurst v. State, 147 So. 3d 435,
441 (Fla. 2014) rev’d, Hurst v. Florida, 136 S. Ct. 616 (2016); §
921.137(1), Fla. Stat. The defendant has the burden to prove that he is
intellectually disabled by clear and convincing evidence. Franqui v.
State, 59 So. 3d 82, 92 (Fla. 2011); § 921.137(4), Fla. Stat. If the
defendant fails to prove any one of these components, the defendant
will not be found to be intellectually disabled. Nixon v. State, 2 So.
3d 137, 142 (Fla. 2009). In reviewing intellectual disability
determinations, this Court has employed the standard of whether
competent, substantial evidence supports the trial court’s
determination. See Cherry v. State, 959 So. 2d 702, 712 (Fla. 2007);
Brown v. State, 959 So. 2d 146, 149 (Fla. 2007) (“This Court does not
reweigh the evidence or second-guess the circuit court’s findings as to
the credibility of witnesses.”). “However, to the extent that the [trial]
court decision concerns any questions of law, we apply a de novo
standard of review.” Dufour v. State, 69 So. 3d 235, 246 (Fla. 2011).
In Hall v. Florida, 134 S. Ct. 1986 (2014), the United States
Supreme Court invalidated Florida’s interpretation of its statute as
establishing a strict IQ test score cutoff of 70. Hall explained that
“[a]n IQ score is an approximation, not a final and infallible
assessment of intellectual functioning,” and “[i]ntellectual disability is
a condition, not a number.” Id. at 2000, 2001. Accordingly, “[the
Supreme Court] agrees with the medical experts that when a
defendant’s IQ test score falls within the test’s acknowledged and
inherent margin of error, the defendant must be able to present
additional evidence of intellectual disability, including testimony
regarding adaptive deficits.” Id. at 2001.
Following two evidentiary hearings, including one in which Wright was
allowed to present evidence of adaptive functioning in accord with Hall, the
postconviction court concluded that Wright had not proven that he is intellectually
disabled by clear and convincing evidence. As we will explain, not only do we
- 18 -
conclude that the postconviction court’s findings are supported by competent,
substantial evidence, but we are also convinced that Wright has failed to establish
intellectual disability even by a preponderance of the evidence.3 Accordingly, we
affirm the postconviction court’s order determining that Wright is not intellectually
disabled.
Significantly Subaverage General Intellectual Functioning
As explained above, the first prong under Florida law requires a capital
defendant to prove that he or she has an IQ low enough to qualify as having
significantly subaverage general intellectual functioning. In Hall, the United States
Supreme Court explained that for purposes of determining intellectual disability as
a bar to execution, IQ scores are best evaluated as a range, taking into account the
standard error of measurement (SEM) and other factors that can affect the accuracy
of the score:
3. Referring us to Cooper v. Oklahoma, 517 U.S. 348 (1996), Wright also
contends that section 921.137(4), Florida Statutes, is facially unconstitutional
because the clear and convincing evidence standard creates too high of a risk that
he will be mistakenly determined to not be intellectually disabled. However, in
light of our holding today, we need not address this issue. Moreover, the claim is
procedurally barred because Wright raised this claim for the first time in his
written closing remarks during the supplemental postconviction evidentiary
hearing. See Deparvine v. State, 146 So. 3d 1071, 1103 (Fla. 2014) (“This
argument was not specifically raised in either the initial postconviction motion, the
reply to the State’s response to the motion, or the amended postconviction motion.
Deparvine raised this specific claim for the first time in closing arguments.”);
Darling v. State, 966 So. 2d 366, 379 (Fla. 2007).
- 19 -
The professionals who design, administer, and interpret IQ tests
have agreed, for years now, that IQ test scores should be read not as a
single fixed number but as a range. . . . Each IQ test has a “standard
error of measurement[”] often referred to by the abbreviation “SEM.”
A test’s SEM is a statistical fact, a reflection of the inherent
imprecision of the test itself. . . . An individual’s IQ test score on any
given exam may fluctuate for a variety of reasons. These include the
test-taker’s health; practice from earlier tests; the environment or
location of the test; the examiner’s demeanor; the subjective judgment
involved in scoring certain questions on the exam; and simple lucky
guessing.
....
The SEM reflects the reality that an individual’s intellectual
functioning cannot be reduced to a single numerical score. For
purposes of most IQ tests, the SEM means that an individual’s score is
best understood as a range of scores on either side of the recorded
score. The SEM allows clinicians to calculate a range within which
one may say an individual’s true IQ score lies. . . . A score of 71, for
instance, is generally considered to reflect a range between 66 and 76
with 95% confidence and a range of 68.5 and 73.5 with a 68%
confidence. . . . Even when a person has taken multiple tests, each
separate score must be assessed using the SEM, and the analysis of
multiple IQ scores jointly is a complicated endeavor. . . . In addition,
because the test itself may be flawed, or administered in a consistently
flawed manner, multiple examinations may result in repeated similar
scores, so that even a consistent score is not conclusive evidence of
intellectual functioning.
Hall, 134 S. Ct. at 1995-96 (internal citations omitted).
In this case, the postconviction court considered expert testimony regarding
Wright’s IQ scores, how the SEM applies to those scores, how the practice effect
applies to those scores, how the Flynn effect applies to those scores, and how
- 20 -
Wright’s effort may have affected the validity of those scores.4 After considering
that evidence, the postconviction court found that Wright had not established by
clear and convincing evidence that he is of significantly subaverage intellectual
functioning. We agree and further hold that Wright has failed to establish this
prong by even a preponderance of the evidence.
Wright has taken a total of nine IQ tests, seven of which were non-
abbreviated IQ tests, and all of which reported full-scale IQ scores of 75 or above.
When he was ten years old, Wright took three Wechsler Intelligence Scale for
Children (WISC-R) tests, receiving full-scale IQ scores of 76 (February 1991), 80
(April 4, 1991), and 81 (September 11, 1991), respectively. On August 25, 1997,
when Wright was sixteen years old, he took his next non-abbreviated IQ test, a
Wechsler Adult Intelligence Scale, Revised Edition (WAIS-R), in which he
attained a full scale IQ score of 75. On July 15, 2005, when Wright was twenty-
four years old, he took a Wechsler Adult Intelligence Scale 3rd Edition (WAIS-III)
and attained a full scale IQ score of 82. Ten days later, he took the same IQ test
and attained a full-scale IQ score of 75. Thus, as the postconviction court noted,
4. According to the expert testimony presented, the practice effect refers to
a test taker’s improvement in scores from taking the same test more than once
within a short time period. The Flynn effect refers to a theory in which the
intelligence of a population increases over time, thereby potentially inflating
performance on IQ examinations.
- 21 -
every single IQ test that Wright took reported a score of 75 or above, five points
above the threshold of 70 utilized under Florida law.
Moreover, the expert testimony in this case makes clear that even when
adjusting the IQ scores to account for the SEM, Wright cannot prove significantly
subaverage general intellectual functioning by even a preponderance of the
evidence. Even taking the most favorable testimony concerning the application of
the SEM to Wright’s scores, at its lowest point, the most favorable range derived
from Wright’s scores dips just one point beneath the threshold of 70 required for a
finding of significantly subaverage general intellectual functioning. Wright’s
expert witness, Dr. Kasper, testified that she adjusted all seven of Wright’s scores
for the SEM and concluded that the most accurate range of scores for Wright was
derived from his first IQ examination—a WISC-R yielding a score of 76 in
February 1991—because it would be free from practice effect concerns as it was
Wright’s first IQ test. Not only was the range yielded from Wright’s first IQ test
the most accurate, but it was also the lowest range. Upon applying the SEM to a
95% confidence interval, the range derived from that score was between 69 and 82.
According to Dr. Kasper, given the 95% confidence interval, one could expect
Wright to score within that range on nineteen out of twenty IQ test administrations,
even taking the practice effect into account for subsequent administrations.
Indeed, she testified that all of Wright’s subsequent scores fell within that range.
- 22 -
Most notably, however, Dr. Kasper agreed that Wright’s score of 82 in 2005 was
valid and free of any practice effect concerns, and she conceded that the score of
82 was within the 95% confidence interval she determined from applying the SEM
to Wright’s first IQ exam. Thus, we cannot conclude that Wright has satisfied this
prong by even a preponderance of the evidence.
Strengthening our confidence in this result, the State’s expert witness, Dr.
Gamache, testified that he had concerns that Wright had malingered or not offered
a full effort on all of his IQ tests. He reached this conclusion because in
administering an IQ test to Wright, he also administered a Validity Indicator
Profile test, which indicated that Wright did not expend a full effort.5 From this
experience, Dr. Gamache determined that Wright may have been malingering on
all of his previous IQ exams because Wright had never been given a validity test
during previous IQ exam administrations. Dr. Gamache explained that although
Wright’s previous evaluators did not detect any malingering, subjective judgment
regarding validity of IQ examinations is notoriously poor. Finally, Dr. Gamache
testified that although one can malinger and fake a low IQ, one cannot fake a
5. In the IQ test administered by Dr. Gamache, Wright scored a 65.
However, it is undisputed that this testing was rendered invalid by Wright’s scores
on the Validity Indicator Profile test administered the same day.
- 23 -
higher IQ. Accordingly, he testified that Wright’s highest IQ score of 82 was the
most accurate representation of his IQ.
Therefore, Wright has not proven even by a preponderance of the evidence,
and certainly not by clear and convincing evidence, that he is of subaverage
intellectual functioning. For this reason alone, Wright does not qualify as
intellectually disabled under Florida law. See Salazar, 188 So. 3d at 812 (“If the
defendant fails to prove any one of these components, the defendant will not be
found to be intellectually disabled.”).
Concurrent Deficits in Adaptive Functioning
We further conclude that Wright cannot demonstrate by even a
preponderance of the evidence that he suffers from concurrent deficits in adaptive
functioning, the second prong of a finding of intellectual disability. In Dufour, we
explained what this prong requires:
As described in section 921.137(1) and rule 3.203(b), the term
adaptive behavior “means the effectiveness or degree with which an
individual meets the standards of personal independence and social
responsibility expected of his or her age, cultural group, and
community.” The definition in section 921.137 and Florida Rule of
Criminal Procedure 3.203 states that the subaverage intellectual
functioning must exist “concurrently” with adaptive deficits to satisfy
the second prong of the definition, which this Court has interpreted to
mean that subaverage intellectual functioning must exist at the same
time as the adaptive deficits, and that there must be current adaptive
deficits. See Jones v. State, 966 So. 2d 319, 326 (Fla. 2007).
69 So. 3d at 248.
- 24 -
In the past, we have looked to a variety of types of evidence to determine
whether a postconviction court’s order concerning intellectual disability is
supported by competent, substantial evidence. Most commonly, we have relied on
a postconviction court’s consideration of expert testimony and its credibility
determinations with regard to that testimony. See Diaz v. State, 132 So. 3d 93, 121
(Fla. 2013). Likewise, we have relied on a postconviction court’s consideration of
lay witness testimony and its credibility determinations. On yet other occasions,
we have also considered the facts of the underlying crime, including a finding of
the CCP aggravating circumstance, as well as a defendant’s testimony and other
involvement during trial. See Hodges v. State, 55 So. 3d 515, 526-37 (Fla. 2010);
Philips v. State, 984 So. 2d 503, 511 (Fla. 2008); Jones, 966 So. 2d at 328. In this
case, all of these types of evidence refute that Wright has concurrent deficits in
adaptive functioning.
First, there was expert testimony that Wright lacked concurrent deficits in
adaptive functioning. Dr. Gamache, the State’s expert, testified that Wright does
not have concurrent deficits in adaptive functioning after interviewing Wright for
five hours, during which time he administered an IQ test to Wright. Taking
Wright’s low socioeconomic status, lack of education, specific learning disability,
and neighborhood culture into consideration, Dr. Gamache concluded that Wright
failed to demonstrate sufficient deficits in all three of the accepted broad categories
- 25 -
of adaptive functioning—conceptual skills, social/interpersonal skills, and practical
skills.
With regard to conceptual skills, Dr. Gamache acknowledged that Wright
has some deficits in reading and writing skills, but attributed them to a lack of
education and his specific learning disability diagnosis, rather than intelligence.
He also acknowledged that Wright has some deficits in self-direction and the
ability to formulate goals or objectives, but none that are significant.
Ultimately, however, Dr. Gamache concluded that Wright’s deficits in
conceptual skills do not rise to the level required for a determination of intellectual
disability because he observed that Wright: (1) rewrites draft blog entries in his
own words; (2) fully communicates with other prisoners and prison staff; (3)
listens to others and takes advice, as evidenced by his brief period requesting
Kosher meals; (4) understands numbers and time; (5) knows the time allocated for
prison activities; (6) manages his prison canteen fund and pays attention to his
monthly statements; (7) managed his own funds as an adolescent to buy
necessities; (8) conducted basic transactions before he was incarcerated; (9) was
attentive to time and number issues during the examination; (10) identifies his
attorneys by name and estimates the amount of time they have represented him;
(11) knows the difference between legal mail and regular mail in the prison
system; (12) understands that he needs his attorneys because he has no legal
- 26 -
training; (13) is receptive to the suggestions of his attorneys; (14) wants his
attorneys to prove that he did not commit the crimes for which he was convicted;
(15) knows that he was sentenced to death and understands the reasoning for his
sentence; and (16) has performed some work on his case.
Likewise, Dr. Gamache did not find that Wright has sufficient deficits with
regard to social/interpersonal skills because he observed that Wright: (1) displayed
good social skills during his examination and followed written and unwritten rules;
(2) interacted effectively during the examination; (3) is able to engage in social
conversation with others; (4) has counseled pen pals on how to deal with difficult
situations; (5) appears to have adapted well to life on death row, as exhibited by his
lack of disciplinary write-ups and ability to ask correctional staff for help; and (6)
is able to effectively distinguish between friends and associates, as well as
recognize and adapt to multiple levels of interpersonal interaction. Dr. Gamache
further testified that Wright denied that he is a victim of exploitation.
Finally, with regard to practical skills, Dr. Gamache observed that Wright
(1) cares for his health by showering and grooming daily, as well as by engaging in
self-care and health-oriented activities; (2) knows how to obtain the necessities for
basic living and follow schedules; and (3) knew how to use public transportation in
his community. Furthermore, although Wright did not have a driver’s license
because he could not pass the written portion of the driving examination, Wright
- 27 -
knew how to drive a car. In addition, Dr. Gamache considered Wright’s
employment at a grocery store, Wright’s gang activity, Wright’s drug dealing, and
Wright’s statements that he lived independently between the ages of thirteen and
eighteen.
Even without the testimony of Dr. Gamache, not even Wright’s expert, Dr.
Kasper, could establish that Wright has concurrent deficits in adaptive functioning.
Rather, Dr. Kasper could only conclude that Wright currently has some deficits in
the subcategory of conceptual skills, but not in the other categories of practical
skills or social skills. Dr. Kasper explained that she twice administered the
Adaptive Behavior Assessment Scales (ABAS-II) standardized test for adaptive
functioning, which involves answering questions about a person’s behavior on a
scale of zero to three, zero indicating the person never performs certain behavior
and three representing that the person always performs certain behavior. The first
ABAS-II administration indicated that Wright had deficits in both conceptual skills
and social skills. By Wright’s second and most recent administration of the
ABAS-II, however, Wright no longer demonstrated deficits in social skills, and
therefore only had deficits in conceptual skills. This was the case even after Dr.
Kasper adjusted the ABAS-II scores for the SEM. Thus, as Dr. Kasper explained,
Wright only met the statutory criteria for intellectual disability with regard to the
conceptual skills sub-component of the adaptive skills prong. This is insufficient
- 28 -
for a finding of intellectual disability in the context of this case when it is
considered against all of the other significant evidence to the contrary presented, as
explained below.
Moreover, Dr. Kasper conceded during cross-examination that her method
of administering the ABAS-II was, at best, unorthodox. Although Dr. Kasper
interviewed many people with regard to the ABAS-II questions, she filled out just
one copy of the ABAS-II and filled in the answers herself by deciding which
person’s response among many was the most accurate response. She clarified that
she would try to confirm the result with other responses and apply the weight of
the evidence, but conceded that her response to each question required her to make
a credibility determination among all the different responses. As she further
conceded, this was not the normal way the ABAS-II is administered, giving us
great pause in considering its validity.
Moreover, we need not limit ourselves to expert testimony alone to conclude
that Wright does not have concurrent deficits in adaptive functioning. Wright gave
extensive testimony during trial, where he told a coherent narrative of his version
of the events. He testified at length and was not generally aided by leading
questions. Furthermore, following his testimony, he endured a strong cross-
examination by the State in which he demonstrated a clear understanding and
unwavering invocation of his Fifth Amendment right against self-incrimination
- 29 -
with regard to certain uncharged offenses he was repeatedly questioned about.
Moreover, the record demonstrates multiple times that Wright assessed the
performance of his counsel across all three of his trials, sometimes expressing
dissatisfaction with their inability to elicit certain evidence that had been elicited
during a previous trial. In addition, during an extensive colloquy, the trial court
judge questioned Wright concerning his waiver of an advisory penalty phase jury
and Wright appeared to understand all of the ramifications of such a waiver, a
waiver we affirmed on direct appeal. Thus, competent, substantial evidence
supports the postconviction court’s determination that Wright’s testimony during
trial and interactions with the trial court refute his alleged deficits in adaptive
functioning.
Furthermore, competent, substantial evidence supports the postconviction
court’s determination that the facts underlying Wright’s convictions refute deficits
in adaptive functioning. First, the trial court found that Wright committed the
murder in a cold, calculated, and premeditated manner. See Philips, 984 So. 2d at
512 (“The actions required to satisfy the CCP aggravator are not indicative of
mental retardation.”). Specifically, the trial court found, and we affirmed, the
findings that Wright had killed his victims execution style. Second, the complexity
of the crime spree reflects someone who is likely not intellectually disabled. In
addition, the State presented testimony from Aaron Silas, who drove the car during
- 30 -
the Longfellow Boulevard drive-by shooting and testified that Wright instructed
him to turn the car around after spotting his victim, someone Wright previously
knew.
The State also placed into evidence a transcript of a taped interview with a
detective who interviewed Wright following his arrest and presented the detective
as a witness. The interview is inconsistent with an intellectually disabled
defendant. Wright admitted to running away from the police because he had
marijuana in his possession, to discarding the marijuana, and to knowing that
possession of marijuana was a crime. Wright was also questioned during the
interview about the box of bullets he was carrying, to which he responded, “I think
they was .380 bullets,” and that he was holding the bullets for a friend. Then,
when informed a .380 caliber handgun was found nearby, Wright denied
knowledge of the gun. Furthermore, while it was the detective’s practice to inquire
about mental illnesses when he suspected it may be a concern, he did not feel the
need to ask Wright whether he had been diagnosed with any mental illnesses.
Finally, the lay witness testimony from people who know Wright does not
dissuade us from concluding that Wright cannot demonstrate concurrent deficits
even by a preponderance of the evidence. Although Wright’s witnesses testified to
general issues, they all ultimately made concessions that suggest Wright lacks
concurrent deficits in adaptive functioning. For instance, Wright’s cousin
- 31 -
conceded that Wright: (1) had a fast-paced job selecting items for shelving at a
grocery store that Wright eventually learned to do on his own, albeit not fluidly;
(2) has improved somewhat with regard to grammar and punctuation; (3) writes
him cards from prison for the holidays and his birthday; (4) reads the Bible; (5)
occasionally calls him on the phone; and (6) has the capacity to learn. Similarly,
Wright’s aunt conceded that Wright: (1) did not appear to have problems
understanding her; (2) did not appear to have problems getting along with other
people; (3) was always clean when she saw him; and (4) sent her cards and letters
from jail on holidays like Mother’s Day, Christmas, Thanksgiving, Easter, and
sometimes her birthday.
Furthermore, the State presented the testimony of Samuel Pitts’s sisters,
Sandrea Allen, Darletha Jones, and Vontrese Anderson, the latter of whom Wright
dated for two to three weeks. All three testified that they had known Wright,
Wright never had trouble understanding them, and they never had trouble
understanding him.6 All three also testified to having observed Wright ride the city
6. One of the State’s witnesses, Toya Long Ford, testified that Wright had
trouble understanding her and that she had to ask him yes or no questions.
However, she further testified that Wright would talk to her about his mother’s
drug problems and his academic difficulties. Furthermore, Ford testified that
Wright would abide by the rules whenever he visited her home and that Wright
would come to her for food and safe haven, but also that Wright’s visits became
less frequent when she and her mother could no longer provide Wright with as
much help as they had in the past.
- 32 -
bus to varying degrees. Vontrese also testified that Wright would follow her
around after they had ended their relationship, and that even though he was advised
by law enforcement to end that activity, he would continue to follow her anyway.
She believed Wright knew he was not supposed to follow her, but chose to follow
her regardless. Vontrese added that Wright had memorized her phone number and
that she received five or fewer jail calls from Wright, but she did not answer them,
and that she had received a letter from the jail that appeared to be written by
Wright.
Given that Wright has not even demonstrated by a preponderance of the
evidence either of the first two prongs for a determination of intellectual disability,
we conclude that he has not demonstrated that he belongs to that category of
individuals that are categorically ineligible for execution.7 We therefore affirm the
7. We recognize that the postconviction court suggested that we conduct a
new proportionality review due to its concerns that Wright is borderline
intellectually disabled. This suggestion, however, is inconsistent with our
precedent. See, e.g., McKenzie v. State, 153 So. 3d 867, 884 (Fla. 2014) (denying
a new proportionality review in postconviction for evidence the defendant chose
not to present during the penalty phase); Lukehart v. State, 70 So. 3d 503, 524-25
(Fla. 2011) (denying a new proportionality review in a petition for habeas corpus);
Green v. State, 975 So. 2d 1090, 1115 (Fla. 2008) (denying a new proportionality
review due to a lack of new evidence); Farina v. State, 937 So. 2d 612, 618 (Fla.
2006) (proportionality claim procedurally barred in postconviction). Moreover,
Wright has failed to brief how a new proportionality review would apply to him
and has, therefore, waived such a claim. See, e.g., City of Miami v. Steckloff, 111
So. 2d 446, 447 (Fla. 1959) (“It is an established rule that points covered by a
decree of the trial court will not be considered by an appellate court unless they are
- 33 -
postconviction court’s determination that Wright is not among those intellectually
disabled defendants that cannot be executed.
Wright’s Amended Motion for Postconviction Relief
Hurst v. Florida
Prior to oral arguments in this matter, the United States Supreme Court
issued its decision in Hurst v. Florida, 136 S. Ct. 616 (2016). The Supreme Court
held that the Sixth Amendment requires a jury to make the findings of fact
necessary to impose death. See id. at 619 (“The Sixth Amendment requires a jury,
not a judge, to find each fact necessary to impose a sentence of death. A jury’s
mere recommendation is not enough.”).
Although Wright validly waived his right to a penalty phase jury during trial,
he nevertheless made a facial claim that Florida’s death penalty scheme is
unconstitutional based on Ring v. Arizona, 536 U.S. 584 (2002). At the time, we
declined to address Wright’s Ring claim because we concluded that his waiver of a
penalty phase jury was valid:
Wright knowingly, intelligently, and voluntarily waived his right to a
penalty-phase jury, as evidenced by the trial court’s colloquy with
Wright during which the trial court explained the impact of a waiver
and specifically informed Wright of the consequences on appeal.
Wright confirmed that it was his knowing intention to waive his
penalty phase jury. The trial court concluded that the waiver had been
made after a full consultation with counsel, that it appeared to be a
properly raised and discussed in the briefs. An assigned error will be deemed to
have been abandoned when it is completely omitted from the briefs.”).
- 34 -
tactical decision on the part of the defense based on counsel’s
statements, and that the waiver was knowingly, intelligently, and
voluntarily made.
Wright does not present any evidence contrary to the finding of
the trial court. In fact, Wright concedes that he waived his right to a
penalty-phase jury, thus barring this claim, and submits that the
waiver was a strategic decision based on the possible “contamination”
of the jury by the trial court’s admission of collateral-crime evidence
during the guilt phase. Wright chose the trial court to be the finder of
fact because it was his view that the trial court would be more likely
to dispassionately consider the aggravating and mitigating
circumstances in light of any emotional impact the collateral-crime
evidence may have had on the guilt-phase jury. This is no different
from the choice that every capital defendant must make when
deciding whether to waive the right to a penalty-phase jury. Wright’s
strategic decision to present the penalty phase of the case to the trial
court instead of a jury constitutes a knowing, intelligent, and
voluntary waiver and a conscious abandonment of any Ring-based
challenges to the constitutionality of Florida’s capital-sentencing
scheme.
Wright, 19 So. 3d at 297-98. Nevertheless, prior to oral argument in this case, we
sua sponte ordered the parties to file supplemental briefs discussing any application
of Hurst v. Florida to his case.
Although Wright did not challenge the validity of his waiver of a penalty
phase jury on direct appeal, he now attempts to challenge it on two bases. First,
Wright contends that he waived his right to an advisory jury, rather than the jury
required by the Sixth Amendment under Hurst v. Florida. Wright bases this
contention on the fact that the trial court repeatedly referenced the advisory jury,
rather than a jury in general terms. However, this reasoning is undermined by his
- 35 -
attorney’s explanation on the record during trial that Wright preferred that the
judge determine whether a death sentence was appropriate because he felt that a
judge would be more objective than the same jury that convicted him. Second,
Wright challenges the validity of the waiver based on his alleged intellectual
disability. However, as affirmed above, Wright is not intellectually disabled under
Florida law.
Having reaffirmed the validity of Wright’s waiver, we conclude that he is
not entitled to any Hurst v. Florida relief. See Mullens v. State, 197 So. 3d 16, 38-
40 (Fla. 2016) (declining to grant Hurst v. Florida relief where the defendant had
knowingly, voluntarily, and intelligently waived a penalty-phase jury prior to the
decision in Hurst v. Florida).
Penalty-Phase Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution provides that “In all
criminal prosecutions, the accused shall enjoy the right . . . to have the assistance
of Counsel for his defence.” U.S. Const. amend. VI. This right, which was
incorporated to the States through the Due Process Clause of the Fourteenth
Amendment, includes the right to effective assistance of counsel. See McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970); see generally Gideon v. Wainright,
372 U.S. 335 (1963) (incorporating Sixth Amendment right to assistance of
counsel to the States).
- 36 -
However, not all ineffective assistance of counsel is unconstitutional. For
this reason, a defendant seeking relief on this basis must establish both that his
penalty phase counsel’s performance was deficient and that the deficient
performance prejudiced him so as to deprive him of a reliable proceeding. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); Hoskins v. State, 75 So. 3d
250, 254 (Fla. 2011). Because both prongs of the Strickland test present mixed
questions of law and fact, this Court employs a mixed standard of review,
reviewing the postconviction court’s legal conclusions de novo, but deferring to
the postconviction court’s factual findings that are supported by competent,
substantial evidence. See Mungin v. State, 79 So. 3d 726, 737 (Fla. 2011); Sochor
v. State, 883 So. 2d 766, 771-72 (Fla. 2004).
In Shellito v. State, 121 So. 3d 445 (Fla. 2013), this Court further explained
how Strickland applies in the penalty phase context:
Penalty phase claims of ineffective assistance of counsel are also
reviewed under the two-prong test established by Strickland, and “[i]n
reviewing a claim that counsel’s representation was ineffective based
on a failure to investigate or present mitigating evidence, the Court
requires the defendant to demonstrate that the deficient performance
deprived the defendant of a reliable penalty phase proceeding.”
Hoskins v. State, 75 So. 3d [at 254]. In determining whether the
penalty phase proceeding was reliable, “the failure [of counsel] to
investigate and present available mitigating evidence is a relevant
concern along with the reasons for not doing so.” Rose v. State, 675
So. 2d 567, 571 (Fla. 1996).
“It is unquestioned that under the prevailing professional norms
. . . counsel ha[s] an ‘obligation to conduct a thorough investigation of
- 37 -
the defendant’s background.’ ” Porter v. McCollum, 558 U.S. 30, 39
(2009) (quoting Williams v. Taylor, 529 U.S. 362, 396 (2000)); see
also Hannon v. State, 941 So. 2d 1109, 1124 (Fla. 2006) (“Pursuant to
Strickland, trial counsel has an obligation to conduct a reasonable
investigation into mitigation.”). Moreover, counsel must not ignore
pertinent avenues for investigation of which he or she should have
been aware. See Porter, 558 U.S. at 40. “[I]t is axiomatic that
‘counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.’
” Hurst v. State, 18 So. 3d 975, 1008 (Fla. 2009) (quoting Strickland,
466 U.S. at 691). However, “[c]ounsel’s decision not to present
mitigation evidence may be a tactical decision properly within
counsel’s discretion.” Hannon, 941 So. 2d at 1124. This Court has
found counsel’s performance deficient where counsel “never
attempted to meaningfully investigate mitigation” although substantial
mitigation could have been presented. Asay v. State, 769 So. 2d 974,
985 (Fla. 2000).
....
“Penalty phase prejudice under the Strickland standard is measured by
whether the error of trial counsel undermines this Court’s confidence
in the sentence of death when viewed in the context of the penalty
phase evidence and the mitigators and aggravators found by the trial
court.” Hurst, 18 So. 3d at 1013. That standard does not “require a
defendant to show ‘that counsel’s deficient conduct more likely than
not altered the outcome’ of his penalty proceeding, but rather that he
establish ‘a probability sufficient to undermine confidence in [that]
outcome.’ ” Porter, 558 U.S. at 44 (quoting Strickland, 466 U.S. at
693-94). “To assess that probability, [the Court] consider[s] ‘the
totality of the available mitigation evidence . . .’ and ‘reweig[hs] it
against the evidence in aggravation.’ ” Id. at 41 (quoting Williams v.
Taylor, 529 U.S. [at 397-98].
121 So. 3d at 453-56.
Failure to Adequately Investigate or Present Mitigation
With regard to the penalty phase, Wright first contends that his trial counsel
were ineffective in failing to adequately present evidence of mitigating
- 38 -
circumstances. Although Wright may not be intellectually disabled for purposes of
the categorical prohibition against execution under the Eighth Amendment, he can
potentially demonstrate that his low IQ and mental health are mitigating
circumstances sufficient to outweigh the aggravating circumstances. As a result,
Wright contends that his penalty phase counsel were ineffective because they
failed to: (1) acquire documents; (2) present lay witnesses; and (3) present expert
witnesses demonstrating his low IQ and mental health as mitigating circumstances.
We conclude that these claims are without merit.
Failure to Acquire Documents
During the postconviction evidentiary hearing, Wright’s postconviction
counsel presented Wright’s complete school records, which included records from
both Florida and New York. The records indicated that Wright had several
Independent Education plans and that Wright was both emotionally handicapped
and specific learning disabled. In addition, the records contained two school
psychological reports that contained IQ scores. Wright contends that his penalty
phase counsel were ineffective for relying on a family member for Wright’s
educational documents in lieu of acquiring all of the school records directly from
the schools. We disagree.
Notwithstanding any deficiency, competent, substantial evidence supports
the postconviction court’s findings that Wright cannot establish Strickland
- 39 -
prejudice.8 To establish prejudice, Wright must demonstrate a reasonable
probability that he would have received a life sentence but for the deficiencies of
counsel. See Gaskin v. State, 822 So. 2d 1243, 1250 (Fla. 2002). Wright has not
carried his burden because the documents would have merely been cumulative to
the information that was presented during the penalty phase. See Diaz, 132 So. 3d
at 111-12 (“A defendant is not prejudiced by trial counsel’s failure to present
cumulative evidence.” (citing Farina, 937 So. 2d at 624)). Dr. Sesta testified
during the penalty phase that he reviewed school records indicating that Wright
took classes for emotionally handicapped students and had a learning disability.
Wright’s family members who testified during the penalty phase corroborated that
information as well. They also added that Wright’s mother was receiving social
security benefits for Wright’s disability. Therefore, Wright has not alleged any
new information contained in the documents that was not previously presented.
See id. at 111 (affirming postconviction court’s finding of no prejudice for failure
to acquire documents where the defendant “[did] not identify any specific facts
contained in the documents that should have been brought to the attention of the
8. Both parties appear to have conceded that the failure to acquire all of
Wright’s school documents constituted deficient performance. The postconviction
court did not address deficiency in its order. Notably, however, penalty phase
counsel testified that he believed that the school records demonstrated that Wright
was not intellectually disabled, but merely a misbehaving student.
- 40 -
judge . . .”). Thus, Wright cannot demonstrate that he was prejudiced by the
failure to acquire documents, and this claim fails. See Evans v. State, 946 So. 2d
1, 12 (Fla. 2006) (“[B]ecause the Strickland standard requires establishment of
both [deficient performance and prejudice] prongs, when a defendant fails to make
a showing as to one prong, it is not necessary to delve into whether he has made a
showing as to the other prong.” (quoting Whitfield v. State, 923 So. 2d 375, 384
(Fla. 2005))).
Presentation of Expert Witnesses
Wright contends that his penalty phase counsel were ineffective for failing to
present expert witnesses to discuss the Flynn effect, the practice effect, and Fetal
Alcohol Syndrome as each relates to his IQ scores and intellectual disability.9 We
disagree.
As an initial matter, Wright has failed to establish deficiency. This Court
has repeatedly held that penalty phase counsel is not deficient for relying on
qualified mental health experts, even where postconviction counsel retains an
expert with a more favorable opinion. See generally Diaz, 132 So. 3d at 93;
9. Wright also contends that his penalty phase counsel were ineffective for
failing to retain Dr. Sesta as a confidential consultant and presenting him as an
expert witness. However, this claim was not raised in Wright’s amended 3.851
motion and the postconviction court did not address it in its order. Wright appears
to have raised it for the first time on appeal and, as such, it is not preserved for
appeal. See Deparvine, 146 So. 3d at 1103.
- 41 -
Bowles v. State, 979 So. 2d 182 (Fla. 2008); Asay, 769 So. 2d at 986; Jones v.
State, 732 So. 2d 313 (Fla. 1999). Wright’s penalty phase counsel pursued the
presentation of evidence of mitigating circumstances diligently and ultimately
retained five expert witnesses. Indeed, trial counsel testified that they specifically
retained Dr. Waldman and Dr. Sesta after the original experts did not find that
Wright was intellectually disabled. Dr. Waldman was the first expert to conclude
that Wright was intellectually disabled. Furthermore, as discussed above, the
record reflects that Wright’s trial counsel at times believed that Wright was bright,
a conclusion that was reasonable in light of Wright’s input with regard to
objections across the three trials and his extensive testimony. Thus, Wright has not
demonstrated deficiency, and this claim fails.
This claim further fails because Wright cannot demonstrate Strickland
prejudice. As noted in the discussion pertaining to Wright’s renewed motion for
intellectual disability, the expert testimony indicated that Wright’s first IQ score
was his most accurate and that all of his subsequent IQ scores fell in the range
derived from his first IQ score after adjusting for the SEM, notwithstanding any
practice effect or Flynn effect concerns. Furthermore, there was testimony that
Wright’s IQ examinations were far enough apart in time that they would not have
been affected by the practice effect. Moreover, during the penalty phase Dr.
- 42 -
Waldman testified that Wright was profoundly impaired and he also testified
extensively about Wright’s Fetal Alcohol Syndrome, as well as Wright’s low IQ.
In addition, Wright has failed to demonstrate that any expert testimony
would have changed the composition of the mitigating circumstances found. For
instance, the trial court found the existence of two statutory mental health
mitigating circumstances: (1) that Wright committed the offense while under the
influence of extreme mental or emotional disturbance, and (2) that Wright’s
capacity to appreciate the criminality of his conduct or to conform his conduct to
the requirements of law was substantially impaired. It assigned those two statutory
factors some weight. The trial court also found one more statutory mitigating
circumstance, that Wright was nineteen years old (some weight), as well as nine
nonstatutory mitigating circumstances: that Wright (1) suffered emotional
deprivation during his upbringing (some weight); (2) had a low IQ, which affected
his judgment and perceptions (some weight); (3) suffered from neurological
impairments, which affected his impulse control and reasoning ability (some
weight); (4) suffered from low self-esteem (little weight); (5) lacked the capacity to
maintain healthy, mature relationships (little weight); (6) was frustrated by his
learning disability (little weight); (7) lacked mature coping skills (some weight);
(8) displayed appropriate courtroom behavior (little weight); and (9) suffered from
substance abuse during his adolescent and adult life (little weight).
- 43 -
Furthermore, the evidence of aggravating circumstances was significant.
Two of the aggravating circumstances found, CCP and prior violent felony for the
contemporaneous murders, are among the weightiest of aggravating circumstances.
See Deparvine v. State, 995 So. 2d 351, 381 (Fla. 2008) (“CCP[] is among the
most serious aggravators set out in the statutory sentencing scheme.”); Sireci v.
Moore, 825 So. 2d 882, 887 (Fla. 2002) (stating that prior violent felony conviction
is among the weightiest aggravating circumstances in Florida’s capital sentencing
scheme). The trial court also found a third aggravating circumstance: that the
murders were committed for the purpose of avoiding arrest. All three aggravating
circumstances were assigned great weight. As a result, Wright has failed to
demonstrate any reason that any expert testimony would have led to a different
assignment of weight to the mental health mitigating circumstances and that a
reweighing of the aggravating circumstances and mitigating circumstances would
result in a life sentence. Thus, Wright cannot establish prejudice.
We therefore conclude that Wright has failed to establish Strickland
ineffective assistance of counsel.
Failure to Present Lay Witness Testimony
Wright contends that his penalty phase counsel were ineffective for failing to
present lay witness testimony from fellow inmates who characterized Wright as a
- 44 -
follower, an outcast, intellectually slow, and pugnacious.10 The postconviction
court found that Wright did not establish either deficient performance or prejudice
with regard to this claim. We agree.
With regard to prejudice, Wright has failed to demonstrate that the evidence
elicited during the postconviction evidentiary hearing would not have been merely
cumulative to the penalty phase testimony of his aunt and cousin. See Diaz, 132
So. 3d at 111-12 (“A defendant is not prejudiced by trial counsel’s failure to
present cumulative evidence.” (citing Farina, 937 So. 2d at 624)). His aunt and
cousin specifically testified that Wright was a follower, was slow, had low self-
esteem, performed poorly in school, and was enrolled in special classes. They also
testified that Wright’s father was in a mental institution and that Wright was
bullied by other children. As a result, Wright has failed to demonstrate that any
new mitigating circumstance would be found or that the existing mitigating
10. Wright mentioned other lay witnesses in his postconviction motion, but
he never presented them as witnesses during the postconviction evidentiary
hearing. Therefore, any claims concerning them are waived. Ferrell v. State, 918
So. 2d 163, 174 (Fla. 2005). Some of them were eventually called during the
evidentiary hearing for Wright’s renewed motion for determination of intellectual
disability, but only after the postconviction court denied Wright’s claim of
ineffective assistance of counsel.
- 45 -
circumstances would have been assigned more weight. Therefore, this claim fails.
See Evans, 946 So. 2d at 12.11
Failure to Challenge Evidence of Aggravation
Wright claims that his counsel were ineffective for failing to present
witnesses to rebut or elaborate on evidence of Wright’s prior convictions for
batteries that occurred while he was in prison during the pendency of his trial.
This claim is meritless. Competent, substantial evidence supports the
postconviction court’s findings.
First, Wright has failed to establish prejudice. None of the evidence
presented during the postconviction evidentiary hearing negates the fact that
Wright had previous convictions for battery. Furthermore, even if those prior
convictions were omitted, the trial court still considered Wright’s
contemporaneous convictions for first-degree murder of the other victim,
carjacking, kidnapping, and robbery with a firearm in finding the prior violent
felony conviction aggravating circumstance. As the postconviction court noted,
the contemporaneous convictions were arguably more serious than the convictions
Wright claims were not properly rebutted. As explained above, two of the three
11. With regard to deficiency, the decision to limit the presentation of lay
witness testimony appears in part to have been strategic based on Wright’s penalty
phase counsel’s assessment of the inmate witnesses’ credibility, which is a valid
strategic reason for foregoing presentation of certain witnesses.
- 46 -
aggravating circumstances found below are among the weightiest aggravating
circumstances. See Sireci, 825 So. 2d at 887; Deparvine, 995 So. 2d at 381-82. In
addition, the previously undiscovered evidence concerning the attack on Cassada
would have been merely cumulative to the concessions elicited from Cassada
during penalty phase cross-examination and the evidence presented by Wright’s
trial counsel. Specifically, evidence was introduced that one other person was
convicted in connection with the attack on Cassada, and Cassada conceded that
perhaps five individuals attacked him and he did not know whether Wright actually
struck him. Thus, because Wright has failed to establish prejudice, we affirm the
postconviction court’s denial of this claim. See Evans, 946 So. 2d at 12.
Moreover, the record reflects that Wright’s trial counsel made a tactical
decision to not present the testimony of other inmates concerning Connelly’s
alleged provocation of Wright. Wright’s trial counsel testified that he did not
consider the provocation sufficient justification for Wright to attack Connelly, and
even if it were, presentation of such evidence would not have changed the fact that
Wright was convicted for the attack. Furthermore, Wright’s trial counsel
represented Wright in the case concerning his attack on Connelly and presented
those witnesses in that case. Thus, Wright’s penalty phase counsel were well
aware of the inmates’ testimony when they elected to not present the inmates as
penalty phase witnesses. In addition, Wright’s lead penalty phase counsel testified
- 47 -
that he did not consider the inmate witnesses to be good witnesses. The decision to
not present rebuttal witnesses concerning the prior conviction for attacking
Connelly was a reasonable tactical decision. Therefore, the postconviction court’s
findings that Wright’s counsel were not ineffective for failing to present additional
witnesses concerning Wright’s prior battery convictions are supported by
competent, substantial evidence.
Guilt Phase Ineffective Assistance of Counsel Claims
Wright first contends that his counsel rendered ineffective assistance of
counsel by failing to present witnesses to testify as to the credibility of two
jailhouse informants who testified during trial that Wright confessed to the
murders. We disagree.
This Court has observed that mere disagreement by a defendant’s
subsequent counsel with a strategic decision of a predecessor does not
automatically result in deficient performance. See Occhicone v. State, 768 So. 2d
1037, 1048 (Fla. 2000). Indeed, reasonable trial strategy appears in a myriad of
forms. One example is a trial counsel’s decision to not call certain witnesses to
testify. See Johnston v. State, 63 So. 3d 730, 741 (Fla. 2011). Although the
“sandwich” rule has been repealed since Wright’s trial, this Court has held that a
valid basis for deciding against calling witnesses to testify is the decision to
preserve opening and closing remarks pursuant to the sandwich rule. See Van
- 48 -
Poyck v. State, 694 So. 2d 686, 697 (Fla. 1997). In addition, this Court has
concluded that trial counsel’s strategy of relying on cross-examination of a
witness—in lieu of calling additional witnesses—was sound trial strategy. See
Occhicone, 768 So. 2d at 1048. Moreover, a failure to present cumulative
evidence—even by mere omission rather than decision—does not constitute
deficient performance. See Beasley v. State, 18 So. 3d 473, 484 (Fla. 2009) (citing
Darling, 966 So. 2d at 378). These examples of reasonable strategy reflect this
Court’s observation that “[m]ore [evidence] is not necessarily better.” Woods v.
State, 531 So. 2d 79, 82 (Fla. 1988).
Furthermore, notwithstanding the deficient performance of counsel,
Strickland prejudice does not arise when a defendant’s trial counsel fails to present
evidence that would have been merely cumulative to evidence that was previously
elicited during trial. See Sochor, 883 So. 2d at 784. In the postconviction context,
evidence presented during an evidentiary hearing is cumulative where the same
evidence was previously elicited during trial through cross-examination. See
Ponticelli v. State, 941 So. 2d 1073, 1085 (Fla. 2006). Moreover, as discussed
above, the omission of any noncumulative evidence must undermine confidence in
the verdict.
Failure to Present Impeachment Witnesses
- 49 -
Competent, substantial evidence supports the postconviction court’s findings
that Wright has not established deficiency with regard to the decision to not present
witnesses to impeach the credibility of Durant or Robinson. Rather, the record
reflects that the decision was the product of reasonable trial strategy. For instance,
trial counsel testified that he felt “Durant was such an easy target and so
incredible” that he was not going to look for any witnesses to impeach him. The
record further reflects that trial counsel extensively and successfully cross-
examined Durant with the goal of discounting his credibility. In addition, trial
counsel testified that they rejected the presentation of additional witnesses, with
Wright’s approval, to preserve opening and closing remarks. Moreover, trial
counsel testified that he did not consider inmates to be strong witnesses and that he
did not consider their testimony sufficient to justify sacrificing the retention of
opening and closing remarks.
Wright also did not suffer prejudice. As an initial matter, Wright testified
that he never confessed to either Durant or Robinson. Therefore, any testimony
concerning the credibility of Durant or Robinson with regard to Wright’s alleged
confession would have been merely cumulative to Wright’s testimony. Wright’s
attorneys extensively cross-examined each of them and even if their testimony was
completely discredited, there were still other non-prisoner witnesses who testified
that Wright confessed to them. Furthermore, this Court has previously concluded
- 50 -
that prejudice was not established for failure to object to improper guilt phase
prosecutorial comments when the evidence of guilt was strong. See Jones v. State,
949 So. 2d 1021, 1032 (Fla. 2006) (“Given the strong evidence of Jones’ guilt,
including his confession to the murder and his possession of McRae’s vehicle and
ATM card, our confidence in the guilty verdict is not undermined by the
prosecutor’s guilt phase comment [that the murder was committed in a heinous,
atrocious, and cruel manner.]”). Here, the remaining evidence of guilt was strong
because, among other evidence, Wright’s fingerprints were found on the car, he
possessed the murder weapon, and blood attributed to one of the victims was found
on a shoe attributed to Wright. Thus, this claim fails.
Failure to Object to Prosecutor’s Closing Remarks
As a second claim against his counsel, Wright contends that his counsel
were ineffective for failing to object to comments made by the State during guilt
phase closing remarks. We disagree.
The comments at issue are the following:
He used the gun on Friday. He shot a man with it. He certain[ly]
doesn’t have any problems shooting people. He shot Carlos Coney.
When you have a carjacking and a murder like this that’s
senseless, it’s an irrational act, and you cannot for the life of you
understand why that happened. You’ll never understand why T.J.
Wright chose to shoot Carlos Coney or chose to shoot Felker and
Green. It’s—it’s an irrational thing to do.
- 51 -
Carlos Coney and Bennie Joiner both know the guy. He shoots
them, a man that he knows. The man—the police come, he goes,
“Yeah, who shot you?”
“T.J. Wright shot me.”
....
You know, you can’t believe T.J. This guy wants you to
believe that somebody that he has an acrimonious relationship with,
they don’t get along, he’s driving by, sees the guy, has a gun in his
car, and tells his buddy turn around and go back, I want to talk to him.
Bull crap. He wanted to shoot him. That’s why he told [the
driver] to turn around. That’s exactly what he did. He shot him.
....
But the second time, when you look at this map, after he
dumped that car on Bolender Road and went and carjacked the
Mexicans, he comes up to right there, and that’s where he flees.
That’s where he shoots at Mr. Mendoza and the owner of the car
who’s since died in a car accident. That’s where he shoots at him.
Wright, 19 So. 3d at 294 n.18 (emphasis in original). On direct appeal, we
admonished the State for those comments: “We caution the State that some of the
arguments appear to have crossed the line into asserting that Wright’s propensity
for violence proved that he committed the murders.” Id. at 294. Ultimately,
however, we reviewed the comments for fundamental error. We concluded that
the comments did not rise to fundamental error.
Despite the distinctions between the fundamental error standard and the
Strickland prejudice standard, this Court has held that a previous finding upon
- 52 -
appeal that statements by a prosecutor failed to rise to fundamental error precludes
a determination of prejudice in the Strickland context. See Chandler v. State, 848
So. 2d 1031, 1046 (Fla. 2003) (“Because Chandler could not show the comments
were fundamental error on direct appeal, he likewise cannot show that trial
counsel’s failure to object to the comments resulted in prejudice sufficient to
undermine the outcome of the case under the prejudice prong of the Strickland
test.”); Sheppard v. State, 62 So. 3d 14 (Fla. 3d DCA 2011) (applying Chandler in
a similar context); c.f. Clarke v. State, 102 So. 3d 763 (Fla. 2012) (distinguishing
Chandler because the Court had affirmed the direct appeal without a written
opinion and therefore did not reveal whether it had found that no fundamental error
occurred). Here, as noted above, this Court determined in a written opinion that
the comments at issue did not rise to fundamental error. Therefore, Wright cannot
now assert, a second time, that he was prejudiced by his trial counsel’s failure to
object to those comments.
We nevertheless briefly address the merits because Wright takes issue with
this Court’s previous conclusion that no fundamental error occurred. Wright
believes that a concession by appellate counsel was self-serving because his
counsel on direct appeal was his trial counsel and, consequently, his appellate
counsel did not have an interest in admitting that he rendered ineffective assistance
of counsel. However, we conclude that competent, substantial evidence supports
- 53 -
the postconviction court’s finding that Wright cannot establish Strickland
prejudice. Here, the record supports the postconviction court’s findings that there
was strong evidence of Wright’s guilt, including testimony of multiple confessions,
the recovery of his fingerprints at the crime scene, and the recovery of blood of one
of the victims from a shoe connected to Wright. As a result, even if we were to
agree that Wright’s counsel were deficient for failing to object, our confidence in
the verdict is not undermined by the comments in this case when they are placed in
context of the overwhelming evidence of guilt. See Jones, 949 So. 2d at 1032.
Thus, this claim fails.
Cumulative Error
This Court has recognized under unique circumstances that “[w]here
multiple errors are found, even if deemed harmless individually, ‘the cumulative
effect of such errors’ may ‘deny to [the] defendant the fair and impartial trial that is
the inalienable right of all litigants.’ ” See Hurst, 18 So. 3d at 1015 (citing Brooks
v. State, 918 So. 2d 181, 202 (Fla. 2005) (quoting Jackson v. State, 575 So. 2d 181,
189 (Fla. 1991))); see also McDuffie v. State, 970 So. 2d 312, 328 (Fla. 2007).
However, this Court has repeatedly held that “where the individual claims of error
alleged are either procedurally barred or without merit, the claim of cumulative
error also necessarily fails.” Israel v. State, 985 So. 2d 510, 520 (Fla. 2008)
(quoting Parker v. State, 904 So. 2d 370, 380 (Fla. 2005)); see also Griffin v. State,
- 54 -
866 So. 2d 1, 22 (Fla. 2003). In addition, individual claims that fail to meet the
Strickland standard for ineffective assistance of counsel are also insufficient to
establish cumulative error. See Israel, 985 So. 2d at 520. Moreover, claims of
error that have previously been presented to this Court on direct appeal or in
postconviction and subsequently rejected cannot form the basis for a valid claim of
cumulative error. See Rogers v. State, 957 So. 2d 538, 555-56 (Fla. 2007) (citing
Morris v. State, 931 So. 2d 821, 837 n.14 (Fla. 2006); Melendez v. State, 718 So.
2d 746, 749 (Fla. 1998)).
We affirm the postconviction court’s findings that Wright has not
established that he was deprived of a fair trial due to cumulative errors. As
discussed above, with regard to every claim, Wright has failed to demonstrate that
the postconviction court erred in finding no Strickland error occurred. As a result,
he has not alleged a basis for cumulative error.
CONCLUSION
We affirm the postconviction court’s denial of Wright’s renewed motion for
determination of intellectual disability and the postconviction court’s order
denying Wright’s rule 3.851 motion. We also determine that Wright is not entitled
to relief pursuant to Hurst v. Florida.
It is so ordered.
- 55 -
LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
CANADY and POLSTON, JJ., concur in result.
LAWSON, J., did not participate.
NO MOTION FOR REHEARING WILL BE ALLOWED.
An Appeal from the Circuit Court in and for Polk County,
Donald G. Jacobsen, Chief Judge - Case No. 532000CF002727A0XXXX
James Vincent Viggiano, Jr., Capital Collateral Regional Counsel-Middle Region,
and Maria Christine Perinetti, Raheela Ahmed, and Donna Ellen Venable,
Assistant Capital Collateral Regional Counsel-Middle Region, Temple Terrace,
Florida,
for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Stephen D. Ake,
Assistant Attorney General, Tampa, Florida,
for Appellee
- 56 -