Court: Supreme Court of Florida; June 15, 2006; Florida; State Supreme Court
Lenard James Philmore, having previously been sentenced to death for first-degree murder and other charges related to a 1997 robbery and murder of Kazue Perron, appealed a circuit court's denial of his postconviction relief motion and sought a writ of habeas corpus. The Florida Supreme Court affirmed the trial court's order and denied the habeas petition. Philmore's convictions stemmed from a plan with co-defendant Anthony Spann to rob a bank, which escalated to the abduction and murder of Perron after they stole her vehicle. On November 14, 1997, Philmore approached Perron under the pretense of needing to use her phone, then forced her out of her car and shot her in a secluded area. After robbing the bank of approximately $1100, Philmore and Spann were apprehended following a high-speed chase. Philmore confessed to the crimes and led police to Perron's body. During the penalty phase of the trial, witnesses, including victims of Philmore’s prior crimes and family members of Perron, provided testimony about the impact of Perron’s life and her death.
Philmore's family members provided testimony highlighting his background of abuse by his father, the traumatic experience of witnessing his niece's murder at age thirteen, and subsequent struggles with alcohol and head injuries. They also commented on his relationship with codefendant Spann. To support claims of statutory mitigation, expert witnesses Dr. Frank Wood and Dr. Robert Berland were presented. The State countered with testimonies from Dr. Gregory Landrum and Dr. Helen Mayberg. Ultimately, the jury unanimously recommended the death penalty, which the trial court imposed after considering both aggravating and mitigating factors.
Philmore raised eleven issues in his direct appeal, with the court dismissing his ineffective assistance of counsel claim regarding preindictment statements without prejudice and rejecting other arguments as unpreserved or meritless, affirming his convictions and death sentence. Subsequently, Philmore filed a timely postconviction relief motion under rule 3.851, citing various claims of ineffective assistance of counsel during jury selection and the penalty phase, as well as issues with preindictment representation.
Testimony during the evidentiary hearing included insights from Thomas Garland, Philmore's lead trial counsel, and Dr. Michael Maher, a forensic psychiatrist who had not testified at the trial but stated Philmore had organic brain injury and was under extreme emotional disturbance at the time of the offense. Additionally, testimony from John Hetherington, Philmore's preindictment counsel, and his mother was presented. The trial court denied relief, leading Philmore to appeal with four issues and file a habeas corpus petition containing six claims. The appellate court reviews the trial court’s factual findings for substantial evidence while applying the law de novo, requiring Philmore to demonstrate both deficient performance and resulting prejudice in his ineffective assistance claims as established in Strickland v. Washington.
To establish ineffective assistance of counsel, a defendant must demonstrate that the attorney's performance fell below the standard of competence and that this deficiency adversely impacted the fairness and reliability of the legal proceedings. The assessment of counsel's performance must be highly deferential, aiming to avoid hindsight bias and reconstructing the context of the attorney's actions at the time.
Philmore claimed that his preindictment attorney, John Hetherington, was ineffective for several reasons: failing to investigate prior to advising Philmore to make incriminating statements, permitting these statements despite knowing they would implicate Philmore in a murder, being absent during those statements, and not securing a plea agreement beforehand. The trial court conducted a detailed analysis, finding that Hetherington's actions were informed strategic choices supported by substantial evidence.
Hetherington testified that his advice for Philmore to cooperate stemmed from Philmore's initial claims of innocence. Although Hetherington expressed skepticism about information from defendants, he believed Philmore's assertions due to knowledge of another suspect's criminal activities. After Philmore's dishonesty became evident, Hetherington advised him on the importance of truthfulness and suggested against speaking to law enforcement if not honest. Despite this, Philmore chose to provide statements to police, which aligned with his earlier claims. The trial court concluded that Hetherington's hypothetical presence would not have prevented Philmore from admitting his involvement in the abduction.
Hetherington assessed his legal strategy after Philmore's initial confession regarding the abduction, determining that if Philmore was not the shooter, he could benefit from being portrayed as a minor, cooperating participant in the felony murder, which could help him avoid the death penalty. Once Philmore admitted to being the shooter, Hetherington concluded that Philmore had nothing to lose by making further statements to law enforcement. The trial court found that Hetherington's decisions were informed and strategic, influenced by Philmore's own admissions and reasonable under the circumstances, leading to the conclusion that Philmore did not demonstrate ineffective assistance of counsel.
Regarding jury selection, Philmore claimed that trial counsel was ineffective for not challenging the State's peremptory strike of juror Holt, an African-American female, arguing that the State's reason was pretextual. However, this issue was previously raised on direct appeal and was deemed procedurally barred. The court noted that although Philmore objected to the strike at the time, he failed to renew his objection before the jury was sworn, leading to a waiver. Furthermore, the court had previously found the State's reasons for the strike to be race-neutral and thus without merit, indicating that any shortcomings in counsel's performance did not undermine the fairness of the trial.
Finally, Philmore contended that the trial court erred in dismissing his claim of ineffective assistance of trial counsel for failing to present Dr. Maher, who could have testified about Philmore's organic brain damage to support his claim of extreme mental or emotional disturbance as a statutory mitigator.
The Court emphasizes the critical responsibility of attorneys to investigate and prepare for the penalty phase in capital cases, highlighting the need for reasonable background investigations to uncover mitigating evidence. The focus for assessing counsel's performance is whether their investigation was reasonable, not merely whether they chose to present a mitigation case. A defendant must prove that counsel's ineffectiveness led to an unreliable penalty phase. In denying Philmore's claim, the trial court found he did not overcome the presumption of sound strategy by his attorney, Garland, and failed to demonstrate prejudice. The court noted inconsistencies between expert testimonies, particularly regarding Philmore's brain injury and the substantial domination mitigator. Philmore argued that conflicting expert opinions should not have deterred calling Dr. Maher, but the standard for ineffective assistance claims requires showing both deficient performance and prejudice under Strickland. The court concluded that presenting conflicting expert opinions would harm the defense's credibility. Garland's decision not to call Dr. Maher was deemed a tactical choice that was supported by his review of the expert's materials. Ultimately, the trial court found no error in concluding that Philmore did not establish deficient performance or that the absence of Dr. Maher's testimony compromised the reliability of the penalty phase.
Garland called two experts and several lay witnesses to support mitigation efforts, and the absence of Dr. Maher's testimony did not weaken confidence in the penalty phase outcome, despite the State's success in impeaching Dr. Berland's testimony. It is anticipated that the State would similarly undermine Dr. Maher's conclusions. Therefore, the trial court's denial of this claim for relief is affirmed.
In Philmore's appeal concerning ineffective assistance of counsel, he contends that the trial court erred in rejecting his claim that trial counsel was ineffective for conceding his guilt on several charges, including conspiracy and second-degree murder. The trial court determined that these concessions were a reasonable strategy, which Philmore had consented to. Testimony from Garland indicated that this strategy aimed to save Philmore's life, acknowledging his prior confession and life sentence in another case. Garland affirmed that Philmore was aware of and agreed to this strategy, providing competent evidence supporting the trial court’s finding. The case differs from Nixon v. State, where no evidence of consent was found, as here, Philmore explicitly consented. The U.S. Supreme Court's ruling in Florida v. Nixon clarified that a defendant's unresponsiveness does not require explicit consent for counsel's strategic decisions, provided the strategy meets the Strickland standard. Consequently, Philmore's reliance on Nixon is deemed meritless, and the trial court's denial of relief on this claim is affirmed.
In his first claim for habeas relief, Philmore argues that the trial court failed to consider Dr. Wood's testimony regarding his mental state at the time of the offense. The rejection of mitigating circumstances is typically addressed in direct appeals, as established in White v. State, which confirms that such claims are procedurally barred if not raised appropriately.
Philmore contended that the trial court improperly dismissed the statutory mitigator of extreme mental or emotional disturbance during the murder. The court upheld the trial court's decision, finding it backed by substantial evidence (Philmore, 820 So.2d at 937). Philmore's argument regarding Dr. Wood's testimony as additional support for this mitigation was deemed procedurally barred, referencing precedents where similar claims were rejected for failing to be raised on direct appeal (Griffin v. State, 866 So.2d 1, 18; Cherry v. Moore, 829 So.2d 873, 876). Attempts to frame this issue as ineffective assistance of appellate counsel were also denied, as it merely reiterated previously addressed arguments.
Furthermore, Philmore argued that Florida's death penalty statute was unconstitutional based on Apprendi and Ring, but stated his intent was solely to preserve the issue for federal review. The court noted that Ring does not apply retroactively (Johnson v. State, 904 So.2d 400, 412), and claims of ineffective assistance of appellate counsel related to this issue were rejected since they would likely have been deemed meritless if raised on direct appeal. The court clarified that when Philmore's direct appeal occurred, Ring had not yet been decided. The trial court found an aggravating circumstance based on Philmore's prior violent felony conviction and noted that the jury had unanimously recommended the death sentence, thus affirming that the claim lacked merit. Consequently, appellate counsel was not ineffective for not raising this issue.
Philmore contends his trial counsel was ineffective for not objecting to various prosecutorial comments, including references to an unknown woman, personal investigator opinions, stereotyping based on attire, and remarks about his brain damage, among others. However, this ineffective assistance claim is deemed improperly raised in a petition for writ of habeas corpus, as established in Reed v. State. Additionally, appellate counsel had adequately addressed these comments on direct appeal, asserting that the cumulative errors did not amount to fundamental error, leading to a denial of relief.
Philmore's claim regarding unconstitutional jury instructions, which stated the jury's role was advisory, is procedurally barred because it should have been presented on direct appeal. The court noted that such challenges have consistently been deemed meritless, referencing Caldwell v. Mississippi and related cases.
Regarding the cumulative effect of trial errors, Philmore argues that they denied him a fundamentally fair trial. However, since his other claims are either meritless or procedurally barred, this cumulative effect argument is also rejected.
Lastly, Philmore raises a concern about potential incompetency at the time of execution, acknowledging that this claim cannot be made until a death warrant is issued, thus preserving the issue for future federal review.
The claim for relief has been denied, as the execution of Griffin, who is under a death sentence but lacks a signed death warrant, is not imminent, rendering the issue of his sanity for execution not ripe. The trial court's denial of Philmore's motion for postconviction relief and his petition for a writ of habeas corpus has been affirmed. The trial court identified five aggravating circumstances for Philmore's capital felony: prior felony conviction involving violence, commission of the felony during a kidnapping, intent to avoid lawful arrest, commission of the felony for financial gain, and execution in a cold, calculated, and premeditated manner. No statutory mitigation was found, but several nonstatutory mitigating factors were recognized, including Philmore's history of abuse, substance dependency, emotional trauma, and expressions of remorse.
Philmore raised multiple issues regarding trial court errors, including the suppression of his statements, juror challenges, photographic evidence admission, and improper arguments by the State during both the guilt and penalty phases. Claims of ineffective assistance of counsel were also made concerning the removal of juror Holt, pre-arrest representation, failure to present evidence of organic brain damage during the penalty phase, and conceding guilt during the guilt phase. The court affirmed the trial court's decisions on these matters.
Philmore presents several claims regarding the validity of his death sentence: 1) The trial court disregarded expert testimony that could have supported statutory mitigation, rendering the sentence invalid. 2) His death sentence violates constitutional principles established in Apprendi v. New Jersey and Ring v. Arizona. 3) Trial counsel was ineffective for failing to object to prosecutorial misconduct, and appellate counsel was ineffective for not addressing the cumulative impact of this misconduct. 4) Jury instructions improperly diminished the jury's role in the sentencing process. 5) A combination of procedural and substantive errors compromised the fairness of Philmore's trial. 6) There are concerns regarding a potential violation of the Eighth Amendment due to possible incompetence at the time of execution. The court determined Philmore did not demonstrate ineffective assistance of counsel during police questioning, thus sidestepping the State's argument about the attachment of his Sixth Amendment right to counsel. Philmore admitted involvement in the abduction of Perron but claimed ignorance regarding her fate.
