& SC13-2330 Michael A. Hernandez, Jr. v. State of Florida and Michael A. Hernandez, Jr. v. Julie L. Jones, etc., 180 So. 3d 978

Background

Defendant Michael A. Hernandez, Jr. was convicted (2007) of first-degree murder, robbery, and burglary for the 2004 killing of Ruth Everett; jury recommended death (11–1) and trial court sentenced him to death after finding four aggravators (prior violent felonies; murder in commission of robbery/burglary; to avoid arrest; HAC).
Hernandez confessed to holding the victim while a codefendant attempted to smother her, later feeling a ‘‘snap’’ when moving her, and then cutting her throat; codefendant Arnold pleaded/received life.
On direct appeal this Court affirmed conviction and sentence; U.S. Supreme Court denied certiorari. Hernandez filed a Rule 3.851 postconviction motion alleging numerous instances of ineffective assistance of trial and penalty-phase counsel and a Brady/Giglio claim; the circuit court held an evidentiary hearing and denied relief.
Key contested issues in postconviction and habeas: (1) trial counsel’s handling of Tammy Hartman’s inconsistent/confused testimony and related Giglio claim; (2) counsel’s preparation to rebut prior-violent-felony aggravators (jail battery; aggravated battery on officer); (3) marital-privilege issues as to wife’s testimony; (4) investigation/presentation of mitigation (background, mental-health, possible brain damage, qEEG testing); (5) strategic decisions in guilt-phase (whether to concede lesser offense); and (6) appellate counsel’s failure to raise alleged legal error in State expert Dr. McClaren’s penalty-phase testimony.
The Florida Supreme Court affirmed the denial of postconviction relief and denied the habeas petition, finding no deficient performance meeting Strickland prejudice and rejecting the Giglio, Frye/qEEG admissibility, and other claims.

Issues

Issue	Hernandez's Argument	State's Argument	Held
1. Trial counsel ineffective for failing to impeach/limit Tammy Hartman’s inconsistent/hearsay testimony	Counsel should have impeached inconsistencies and objected to hearsay when Tammy could not identify speaker; prejudice flowed from unchallenged damaging testimony	Counsel strategically used Tammy’s confusion to undermine her credibility; much of her testimony matched Hernandez’s own confession so impeachment would not change outcome	No deficient performance or prejudice; strategy reasonable and no reasonable probability of different result
2. Giglio claim re: prosecutor knowingly presenting false Tammy testimony	Prosecutor presented/failed to correct testimony known to be false about who said what to Tammy	Tammy was confused, not demonstrably false; prosecutor credibly testified he had no reason to believe trial testimony false; materiality not shown	Denied: inconsistencies insufficient to prove Giglio (must show actual falsity and knowing presentation)
3. Penalty counsel ineffective for failing to rebut prior violent felony aggravators (jail battery; officer battery)	Counsel failed to investigate convictions, medical records, or clarify verdict/judgment language that could lessen aggravator weight	Evidence and testimony at penalty phase made the nature of convictions clear; any redaction would not have avoided jury learning facts; other aggravators remained	Denied: any deficiency not prejudicial; aggravator supported and outcome unaffected
4. Admission of wife’s (Stephanie) statement – marital privilege	Testimony should have been excluded as privileged spouse communication	Statement was made in presence of third parties and directed to them; no reasonable expectation of privacy; multiple corroborating witnesses	Denied: privilege inapplicable where communication made openly before third parties; no prejudice shown
5. Ineffective investigation/presentation of mitigation (family history, mental health, brain damage, qEEG)	Counsel failed to find many lay witnesses and failed to obtain qEEG/neuro testing that would have proved brain damage and statutory mitigation	Trial presented two mental-health experts and significant background mitigation; qEEG not generally accepted in 2007 (Frye); additional lay testimony largely cumulative; experts did not show it would change outcome	Denied: counsel’s reliance on experts was reasonable; qEEG would not have been admissible at trial and additional mitigation would not have created reasonable probability of life sentence
6. Guilt-phase strategy: failure to concede lesser offense	Counsel should have conceded second-degree or otherwise limited guilt-phase defense to preserve penalty-phase mitigation credibility	Counsel chose to contest guilt to create reasonable doubt and emphasize relative culpability (Arnold as ringleader); defendant desired jury trial and strategy was consistent with mitigation	Denied: strategy reasonable, not in conflict with penalty-phase; no prejudice shown
7. Habeas: appellate counsel ineffective for not raising Dr. McClaren legal-misstatement claim	Appellate counsel should have argued State expert mis-stated law on statutory mental-health mitigator (extreme mental or emotional disturbance)	McClaren did not limit the mitigator to psychosis; he offered other examples and disagreed only that Hernandez met the statutory standard	Denied: claim would have lacked merit; appellate counsel not ineffective for omitting nonmeritorious claim

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard)
Spencer v. State, 615 So. 2d 688 (Fla. 1993) (Spencer hearing procedure)
Payne v. Tennessee, 501 U.S. 808 (1991) (victim impact evidence admissibility)
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (general acceptance test for novel scientific evidence)
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) (federal gatekeeping standard for expert testimony)
Nixon v. United States, 543 U.S. 175 (2004) (defense concession and counsel strategy)
Foster v. State, 132 So. 3d 40 (Fla. 2013) (Giglio framework and Strickland application)
Kilgore v. State, 55 So. 3d 487 (Fla. 2010) (cumulative-mitigation evidence and counsel performance)