Anthony MUNGIN, Appellant,
v.
STATE of Florida, Appellee.
Anthony Mungin, Petitioner,
v.
James R. McDonough, etc., Respondent.
Supreme Court of Florida.
*990 Todd G. Scher, Miami Beach, FL, for Appellant/Petitioner.
Chаrles J. Crist, Jr., Attorney General, and Curtis M. French, Assistant Attorney General, Tallahassee, FL, for Appellee/Respondent.
PER CURIAM.
Anthony Mungin appeals an order of the circuit court denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 and petitions the Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained in this opinion, we affirm the trial court's order and deny the petition for a writ of habeas corpus.
FACTS AND PROCEDURAL HISTORY
Anthony Mungin was convicted of the 1990 murder of convenience store clerk Betty Jean Woods. The pertinent facts of this case are set forth in this Court's opinion on direct appeal as follows:
Betty Jean Woods, a convenience store clerk in Jacksonville, was shot once in the head on September 16, 1990, and died four days later. There were no eyewitnesses to the shooting, but shortly after Woods was shot a customer [Ronald Kirkland] entering the store passed a man leaving the store hurriedly with a paper bag. The customer, who found the injured clerk, later identified the man as Mungin. After the shooting, a store supervisor found a $59.05 discrepancy in cash at the store.
Mungin was arrested on September 18, 1990, in Kingsland, Georgia. Police found a .25-caliber semiautomatic pistol, bullets, and Mungin's Georgia identification when they searched his house. An *991 analysis showed that the bullet recovered from Woods had been fired from the pistol found at Mungin's house.
Jurors also heard Williams[1] rule evidence of two other crimes. They were instructed to consider this evidence only for the limited purpose of proving Mungin's identity.
First, William Rudd testified that Mungin came to the convenience store where he worked [in Monticello] on the morning of September 14, 1990, and asked for cigarettes. When Rudd turned to get the cigarettes, Mungin shot him in the back. He also took money from a cash box and a cash register. Authorities determined that an expended shell recovered from the store came from the gun seized in Kingsland.
Second, Thomas Barlow testified that he saw Meihua Wang Tsai screaming in a Tallahassee shopping center on the afternoon of September 14, 1990. Tsai had been shot while working at a store in the shopping center. A bullet that went through Tsai's hand and hit her in the head had been fired from the gun recovered in Kingsland.
Mungin v. State,
During the penalty phase, the State presented the testimony of Detective Cecil Towle, who was the lead investigator in the Tallahassee case. Detective Towle testified regarding his interview with the victim, Ms. Tsai, who had returned to China.
In mitigation, Mungin presented the testimony of friends and family who had close contact with Mungin as a child and teenager. They collectively testified that hе was very respectful of his grandparents, with whom he lived, that he attended church, and that he was not a violent or aggressive person. However, most of these witnesses also testified that they had not had any contact with Mungin in at least several years.
Mungin also presented the testimony of Glenn Young, a corrections and probation officer who supervised Mungin for about six months when Mungin resided at the Cross City Correctional Institution beginning in January 1992. Young testified that Mungin had no disciplinary violations during that time. During questioning by defense counsel, Young also indicated that although Mungin was currently serving a life sentence for the other shootings, it did not necessarily mean that he would be incarcerated for life.
Last, Mungin presented the testimony of Dr. Harry Krop, a clinical psychologist and expert in forensic psychology. Dr. Krop testified that he did not find any evidence that Mungin suffered from any major mental illness or personality disorder. Dr. Krop indicated that Mungin functioned in the average range of intellectual ability and that there was no evidence of any type of neurological impairment. Dr. Krop did state that Mungin suffers from a history of drug and alcohol abuse and that Mungin did fairly well in school until drugs changed his lifestyle. Dr. Krop also made it clear that although shooting someone is an antisocial act, in his opinion, Mungin does not suffer from a personality disorder, shows a number of positive strengths, and would be able to function in open prison society.
At the conclusion of the penalty phase, the jury recommended the death penalty by a vote of seven to five. See id. at 1028. *992 After weighing the aggravating and mitigating circumstances, the trial court followed the jury's recommendation and sentenced Mungin to death.[2]
Mungin raised nine issues on direct appeal.[3] This Court concluded that the trial court erred in denying Mungin's motion for judgment of acquittal on the theory of premeditated murder. See id. at 1029. However, the Court did not reverse Mungin's first-degree murder conviction because the Court concluded that the trial court correctly denied Mungin's motion for judgment of acquittal on the alternative theory of felony murder. See id. The Court also ruled that although the trial court erred in instructing the jury on premeditated murder, this error was harmless. See id. The Court rejected all of Mungin's other arguments as either unpreserved or meritless, and affirmed the first-degree murder conviction and sentence of death. See id. at 1030-32.
After several changes of counsel, Mungin filed a consolidated amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, in which he raised multiple claims. Following a Huff[4] hearing, the circuit court ordered an evidentiary hearing on three of Mungin's claims: (1) that trial counsel rendered ineffective assistance during the guilt phase; (2) that there is newly discovered evidence; and (3) that trial counsel rendered ineffective assistance during the penalty phase by failing to present evidence of Mungin's troubled childhood. Prior to the evidentiary hearing, Mungin filed two supplemental claims. The first claim alleged that if the State knew of eyewitness Kirkland's criminal history and did not disclose it to defense counsel, the State violated Brady v. Maryland,
At the evidentiary hearing, Mungin presented the testimony of several witnesses to support his claims of ineffective assistance of trial counsel. Charles G. Cofer, Mungin's lead trial counsel, testified regarding his recollection of his actions during trial preparation and trial.[5] Edward Kimbrough, Jesse Sanders, Brian Washington, Victoria Jacobs, Philip Levy, and Vernon Longworth testified regarding Mungin's whereabouts on the day of the murder and tо other facts supporting Mungin's claim that trial counsel was ineffective for failing to fully investigate Mungin's alibi defense. Eyewitness Ronald Kirkland testified regarding his statement to police in 1990, his identification of Mungin, and his prior criminal history. In rebuttal, the State presented the testimony of Cofer and Detective Dale Gilbreath, the lead detective in the case.
The trial court issued an order denying relief and Mungin appeals, raising seven issues, which include numerous subissues, for this Court's review.[6] Mungin also petitions for a writ of habeas corpus, raising three claims for relief.[7]
ANALYSIS
A. MOTION FOR POSTCONVICTION RELIEF
1. Recusal of Judge Southwood
In his first issue on appeal, Mungin argues that Senior Judge John D. Southwood, as well as all of the judges on the Fourth Judicial Circuit, should have been recused from presiding over Mungin's postconviction proceedings because at the time of these proceedings Mungin's trial counsel, Charles G. Cofer, was a sitting county judge in Duval County. Mungin admits that he did not timely file a motion to disqualify in the trial court but argues that Judge Southwood should have sua sponte recused himself and that his failure to do so was fundamental error. Mungin asks this Court to reverse the denial of his postconviction motion and grant him a new evidentiary hearing in another judicial circuit. Essentially, he urges a per se rule that any time a judge in a circuit represented the defendant in a criminal trial and testifies as a witness in a postconviction proceeding, all the judges of that circuit must sua sponte recuse themselves. We disagree that any rule, statute or court precedent dictates such a result and consider *994 a rule of circuitwide disqualification unnecessary to preserve judicial impartiality.
In addition, Mungin's argument is procedurally barred because it was raised for the first time on appeal in disregard of the time parameters in which motions to disqualify should be filed. As we stated in a recent case, a claim of judicial bias is procedurally barred on direct appeal if the defendant fails to seek disqualification of the judge after having specific knowledge of the grounds for disqualification. See Schwab v. State,
In Schwab, the Court rejected the defendant's argument that the judge should have recused himself under Canon 3 E of the Code of Judicial Conduct. We distinguished Maharaj v. State,
In contrast to Maharaj and as in Schwab, Mungin had specific knowledge of the alleged grounds for disqualification but failed to file a motion to disqualify. Further, unlike Maharaj, there is no specific requirement that a trial judge recuse himself or herself simply because a fellow judge in the circuit is to serve as a witness. Mungin has made no claim of actual, rather than merely presumptive, bias. Thus, his claim is both procedurally barred and without merit.
2. Public Records Request
In his second issue on appeal, Mungin argues that the trial court's failure to conduct an in-camera inspection of documents from the Duval County State Attorney's Office and Duval County Sheriff's Office, claimed to be exempt from his public records request, was error that warrants reversal of the denial of his motion for postconviction relief. In Vining v. State,
Although Vining now contends that there are many public records outstanding, he made no further complaint on the public records issue during the five-month span between the postconviction court's public records order and the evidentiary hearing. Based on this record, we conclude that the court afforded Vining ample time and opportunity to pursue any public records claim. Through his own actions, Vining either waived or abandoned any claim that he was denied public records.
Id.
This Court rejected a similar claim in Pace v. State,
As in Vining and Pace, Mungin made a request for public records but subsequently failed to follow up on the request by informing the trial court that the issue had not been resolved. Postconviction counsel, Dale Westling, was well aware of the sealed boxes at the records repository, filing a second request to have those records sent to the court. The trial court subsequently entered an order directing that those records be delivered. Kenneth Malnik, Mungin's privately retained counsel who first appeared in the case on March 1, 2001, was aware that there were records thаt had not been provided by Westling to Malnik. In fact, due to this discovery, Malnik sought and was granted an extension of time in which to file the consolidated amended motion for postconviction relief. However, Malnik did not pursue an in-camera inspection of any documents that were claimed to be exempt from disclosure. Thus, Mungin had ample opportunity to pursue this issue from the date of the trial court's order to the time of the evidentiary hearing in June 2002. Accordingly, Mungin has waived or abandoned his claim that the trial court failed to conduct an in-camera review of these records and we deny this claim for relief.
3. Detective Gilbreath's Notes
Mungin next asserts that he was denied a full and fair postconviction evidentiary hearing because the trial court refused to review Detective Gilbreath's rough notes of the interview Detective Gilbreath conducted with Mungin during the investigation. The trial court declined to review the notes, finding that they were not relevant to Mungin's ineffective assistance of counsel claim and that the issue was beyond the scope of direct examination. Mungin does not contend that these notes might contain Brady material, nor does it appear that these notes were part of the Duval County Sheriff's Office records that were the subject of Mungin's public records request. Under the circumstances of this case, there was no error in the trial court's ruling on this evidentiary matter.
4. Summary Denial of Ineffective Assistance of Counsel Claims
In his next issue on appeal, Mungin argues that the trial court erred in summarily denying several of his claims of ineffective assistance of trial counsel. Florida Rule of Criminal Procedure 3.850(d) provides that a claim may be denied without a hearing where "the motion, files, and records in the case conclusively show that the movant is entitled to no relief."[8] Thus, to support summary denial *996 without a hearing, a trial court must either state its rationale or attach to its order those specific parts of the record that refute each claim presented in the motion. See Anderson v. State,
To obtain relief on a claim of ineffective assistance of counsel Mungin must establish
deficient performance and prejudice, as set forth in Strickland v. Washington,466 U.S. 668 (1984). See Rutherford v. State,727 So.2d 216 , 218 (Fla.1998). As to the first prong, deficient performance, a defendant must establish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards. See Strickland,466 U.S. at 688 . Second, as to the prejudice prong, the deficient performance must be shown to have so affected the fairness and reliability of the proceedings that confidence in the outcome is undermined. See id. at 694; Rutherford,727 So.2d at 220 .
Gore v. State,
"[W]hen 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." Waterhouse v. State,
[j]udicial scrutiny of counsel's performance must be highly deferential. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . .
(a) Voir Dire
Mungin first contends that the trial court erred in denying without an evidentiary hearing his claim that trial counsel wаs ineffective for accepting the jury without objection, which thereby failed to preserve for appeal the issue of whether the trial court erred in overruling a defense objection to the State's use of a peremptory challenge to strike juror Galloway, an African-American female. At the Huff hearing, the State argued that Mungin was not prejudiced by trial counsel's failure to object because the underlying claim was meritless. After reviewing the record of the voir dire, we conclude that the trial court did not abuse its discretion in granting the State's peremptory challenge *997 of juror Galloway. Therefore, the prejudice prong of Strickland is conclusively refuted. See Valle v. State,
(b) Failure to Object During State's Closing Argument
Mungin next asserts that the trial court erred in summarily denying his claim that defense counsel was ineffective for failing to object to three comments made by the prosecutor during guilt and penalty phase closing arguments. After reviewing the comments, we conclude that the record conclusively establishes that none of these isolated argumеnts was objectionable, and accordingly no ineffective assistance of counsel in failing to object can be demonstrated. Thus, summary denial was appropriate because this claim is without merit.
(c) Failure to Properly Prepare Witness
Mungin next asserts that the trial court erred in summarily denying his claim that trial counsel was ineffective during the penalty phase for failing to properly prepare witness Glenn Young. During direct examination, trial counsel asked Young about the amount of time Mungin was already required to serve in prison because of his prior convictions. Young responded that Mungin was serving a life sentence, but that life does not always mean life. Mungin asserts that as a result of trial counsel's failure to prepare Young, Young was permitted to give highly damaging testimony about the possibility of early release if Mungin was sentenced to life in this case. The trial court denied this claim as procedurally barred.
In his motion for postconviction relief, Mungin appеars to argue both the merits of the underlying claimthat Young's testimony was fundamental errorand that trial counsel was ineffective for allowing this testimony. As to the merits of the underlying claim, the trial court correctly found this issue to be procedurally barred because Mungin raised this issue on direct appeal and it was rejected by the Court. See Mungin,
The trial court was required to hold an evidentiary hearing unless Mungin's allegations failed to state a legally sufficient claim or the claim was refuted by the record. See Freeman,
First, Young's testimony on this subject, although not all favorable to Mungin, allowed defense counsel to argue to the jury that Mungin had already been sentenced to prison for the rest of his natural life. Second, as noted by the Court on direct appeal, the trial court properly instructed the jury that the law at the time for capital sentences was death or life with a minimum mandatory term of twenty-five years. See Mungin,
5. Ineffective Assistance of Counsel during the Guilt Phase
In Mungin's fifth issue on appeal, he asserts that the trial court erred in denying three claims of ineffective assistance of counsel during the guilt phase of his trial following an evidentiary hearing. In reviewing a trial court's ruling after an evidentiary hearing on an ineffective assistance of counsel claim, this Court defers to the factual findings of the trial court to the extent that they are supported by competent, substantial evidence, but reviews de novo the application of the law to those facts. See Stephens v. State,
Mungin's first subclaim is that trial counsel was ineffective for failing to sufficiently impeach the testimony of Ronald Kirkland. Specifically, Mungin argues that Cofer should have made the jury aware that Kirkland was on probation at the time of the trial and that warrants had been issued for Kirkland's arrest on violation of probation and subsequently recalled.[10]
Even if Cofer's performance was deficient because he failed to discover and use Kirkland's probationary status as impeachment evidence, Mungin has failed to establish prejudice. Cofer attacked Kirkland's identification of Mungin on cross-examination of Kirkland, and by his cross-examination of the victim of the Monticello *999 shooting and the eyewitness to the Tallahassee shooting, whose descriptions of the perpetrator were different from Kirkland's. In closing argument, Cofer argued extensively that due to these inconsistencies, Kirkland's identification could not be believed beyond a reasonable doubt. Moreover, Kirkland testified that he did not tell anyone from the State Attorney's Office that he was on probation and that he did not have any deals with the State in exchange for his testimony at Mungin's trial. Mungin does not allege that any deаls were made. As for trial counsel's failure to inform the jury of the recalled warrants for Kirkland's arrest, because the warrants were not recalled until after the trial it cannot be said that counsel's performance was deficient.
Mungin also asserts that trial counsel was ineffective for failing to call Detective Christie Conn to testify regarding Kirkland's identification of Mungin in a photo spread. Specifically, Mungin asserts that according to Detective Conn's deposition testimony, Kirkland stated at the time of the identification that he could not swear in court that the man in the photograph was the same man he saw exiting the store on the day of the murder. After the evidentiary hearing, the trial court denied this claim, finding that Cofer "made a tactical decision, after discussing the possibility with Defendant, not to call Detective Conn as a witness."
Cofer testified at the evidentiary hearing that after discussing the issue with Mungin, he made a tactical deсision not to call Detective Conn. Cofer stated that it was their decision that unless they had something "pretty important" to present, they wanted to try to reserve initial and final closing argument, and that on balance Kirkland admitted to most of the things that they would have used Detective Conn to impeach. Mungin argues that Cofer's asserted reason for failing to call Detective Conn is belied by the record, which shows that the defense team waived initial closing argument.
Although trial counsel ultimately waived initial closing argument, that does not demonstrate that at the time the decision was made not to call Detective Conn, trial counsel did not intend to use both the initial and final closing. Further, Cofer stated at the evidentiary hearing that the decision was part of his trial strategy, which he discussed with Mungin and to which Mungin agreed. Mungin did not testify at the hearing and therefore failed to present any evidence to rebut Cofer's testimony that Mungin was consulted about this decisiоn.
Even assuming that counsel's performance was deficient in this regard, we conclude that Mungin has failed to establish prejudice. As noted above, trial counsel attacked Kirkland's identification of Mungin on cross-examination by bringing out the limited time he had to actually view the perpetrator and the fact that it took him fifteen to twenty minutes to pick Mungin out of the photo lineup. Cofer also brought Kirkland's identification into question by his cross-examination of the victim of the Monticello shooting and the eyewitness to the Tallahassee shooting, who gave different descriptions of the perpetrator than did Kirkland. Accordingly, our confidence in the outcome of Mungin's trial is not undermined by Cofer's failure to call Detective Conn to testify.
In his final guilt phase ineffective assistance subclaim, Mungin asserts that trial counsel was ineffective for failing to pursue an alibi defense. The trial court denied this claim, finding that Cofer's testimony that the alibi defensе was inconsistent with the facts of the case and that such testimony would not have benefited Mungin was credible. The trial court concluded *1000 that Cofer's strategic decision not to pursue this defense did not result in deficient performance or prejudice. We agree. Mungin's claim that a man named "Ice" would have helped to establish his innocence is not supported by any credible evidence.
The Court has rejected ineffective assistance of counsel claims alleging a failure to present an alibi defense when counsel has investigated and made a strategic decision, supported by the record, not to present the defense. See, e.g., Reed v. State,
In this case, it appears that counsеl was confused about the details of Mungin's alibi defense. However, Mungin has failed to establish prejudice. Mungin was linked to the crime by the ballistics evidence that identified the gun used in the Tallahassee and Monticello shootings, and found in Mungin's room the night he was arrested, as the same gun that was used to shoot the victim in this case. The State also presented the eyewitness testimony of Ronald Kirkland, who identified Mungin as the man he saw leaving the store. In addition, Mungin presented no evidence at the evidentiary hearing that trial counsel would have been able to locate "Ice" or any evidence connecting "Ice" to the gun. Although Edward Kimbrough and Jesse Sanders testified that they knew an individual who went by the name "Ice," Kimbrough had not seen "Ice" since the early or mid-1990s and Saunders had not seen him since 1987. Neither witness testified that he could have helped Cofer find "Ice" in 1992, and neither witness directly supported Mungin's claim that he gave "Ice" the gun.
Equally important, Mungin's оther alibi witnesses do not establish that Mungin could not have committed the murder on the afternoon of September 16, 1990. The testimony of Brian Washington, who was sure that the date he drove Mungin to Jacksonville was September 16, 1990, placed Mungin in Jacksonville on the day of the shooting. Philip Levy and Vernon Longworth remembered seeing Mungin in Jacksonville on a Sunday in September but neither could remember the exact date or time. Therefore, even assuming that the day they saw Mungin was September 16, 1990, their testimony does not provide persuasive evidence that Mungin would have been unable to commit the murder between 1:30 and 2:00 that afternoon.
In light of the strong evidence linking Mungin to the crime and the weaknesses in the testimony of Mungin's alibi witnesses, we conclude that Mungin has failed to establish that he was prejudiced by Cofer's failure to follow up on his alibi defense. Cf. Torres-Arboleda v. Dugger,
6. Public Defender's Conflict of Interest
In his sixth issue on appeal, Mungin asserts that his conviction and sentence should be vacated because the Public Defender's Office for the Fourth Judicial Circuit had an actual conflict of interest that it failed to disclose due to its representation *1001 of a State's witness, Ronald Kirkland, both before and during Mungin's trial. In the alternative, Mungin contends that trial counsel was ineffective for failing to investigate whether a conflict existed. After the evidentiary hearing, the trial court denied this claim, finding that no actual conflict of interest existed.
This Court has recognized that "[a]s a general rule, a public defender's office is the functional equivalent of a lаw firm" and that "[d]ifferent attorneys in the same public defender's office cannot represent defendants with conflicting interests." Bouie v. State,
[a] lawyer suffers from an actual conflict of interest when he or she "actively represent[s] conflicting interests." Cuyler,446 U.S. at 350 . To demonstrate an actual conflict, the defendant must identify specific evidence in the record that suggests that his or her interests were compromised. See Herring v. State,730 So.2d 1264 , 1267 (Fla.1998). A possible, speculative or merely hypothetical conflict is "insuffiсient to impugn a criminal conviction." Cuyler,446 U.S. at 350 . "[U]ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance." Id. If a defendant successfully demonstrates the existence of an actual conflict, the defendant must also show that this conflict had an adverse effect upon his lawyer's representation. See Strickland,466 U.S. at 692 ; Cuyler,446 U.S. at 350 .
Hunter involved an allegation that an actual conflict existed because a State witness was formerly represented by the same public defender's office that represented the defendant. See id. at 791. The Court rejected the defendant's argument because trial counsel was unaware of the public defender's previous representation of the witness and did not even know about the witness's criminal background. See id. at 793. In reaching this conclusion, the Court found its prior decision in McCrae v. State,
In this case, Cofer was aware of some of Kirkland's prior criminal history. However, there is nothing in the record to support a conclusion that Cofer knew that Kirkland had been represented by the Public Defender's Office for the Fourth Judicial Circuit before or during Mungin's case. Cofer testified that he could not recall whether he checked the public defender's database or whether he knew that Kirkland had been represented by the public defender's office. He also stated that if he had known about the public defender's simultaneous representation of Kirkland in 1992, he would have disclosed *1002 this informаtion to Mungin. Cofer's testimony supports the trial court's finding that no actual conflict existed.
However, even if an actual conflict did exist, Mungin has failed to demonstrate that the conflict adversely affected Cofer's representation. See Hunter,
Finally, regarding Mungin's claim that Cofer was ineffective for failing to determine that the public defender's office had represented Kirkland, this Court rejected that argument in McCrae. Accordingly, we affirm the trial court's denial of relief on this claim.
7. Ineffective Assistance of Counsel During the Penalty Phase
In his final ineffective assistance of trial counsel claim, Mungin asserts that his trial counsel was ineffective during the penalty phase for failing to present mitigation evidence that Mungin attempted suicide at the age of twelve. As with Mungin's claims of ineffective assistance of counsel during the guilt phase, he must establish both deficient performance and prejudice to be entitled to relief. With respect to mitigation this Court has recognized that "the obligation to investigate and prepare for the penalty portion of a capital case cannot be overstated." State v. Lewis,
With regard to deficient performance, Cofer testified that he was aware of Mungin's attempted suicide at age twelve and generally presented this type of information to the mental health expert to incorporate into his or her testimony. Dr. Krop testified at trial that in conducting his evaluation he reviewed psychiatric records from when Mungin was twelve years old. Thus, this is not a case where counsel did not investigate potential mental health mitigation. Instead, Cofer chose to submit all relevant information to the mental health expert to allow the expert to make a diagnosis. This method of presenting Mungin's mental health mitigation cannot be automatically considered deficient performance, especially given Dr. Krop's conclusion that Mungin did not suffer from any major mental illness or personality disorder. It was an informed strategic decision well within professional norms.
Even if Cofer's decision not to present evidence of Mungin's suicide attempt directly to the jury could be considered deficient performance, Mungin has failed to establish prejudice. The suicide *1003 attempt took place when Mungin was twelve years old, which was twelve years before he committed the murder at issue in this case. Mungin presented no evidence at the hearing that he had any suicidal tendencies at the time of the murder. Nor did he present any evidence to contradict Dr. Krop's testimony at trial that Mungin did not suffer from any major mental illness or personality disorder at the time of the murder. Finally, there are contradictory statements in the hospital report regarding whether Mungin took two Valium tablets to help him sleep or to attempt suicide. Thus, although the jury recommended death by a close seven-to-five vote, we concludе that Cofer's failure to present evidence of Mungin's suicide attempt to the jury did not "so affect[ ] the fairness and reliability of the proceedings that confidence in the outcome is undermined." Gore,
B. PETITION FOR A WRIT OF HABEAS CORPUS
1. Ineffective Assistance of Appellate Counsel
Mungin raises two claims of ineffective assistance of appellate counsel. "The criteria for proving ineffective assistance of appellate counsel parallel the Strickland standard for ineffective trial counsel." Wilson v. Wainwright,
first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.
Teffeteller v. Dugger,
Mungin first argues that he received ineffective assistance of appellate counsel because appellate counsel failed to raise on appeal the State's introduction of hearsay testimony during the penalty phase. The State presented the testimony of Tallahassee Police Department Officer Cecil Towle regarding the facts of a prior crime that had been used in the guilt phase as Williams rule evidence.
Mungin asserts that this hearsay testimony violated his constitutional right of confrontation. To the extent Mungin relies on Crawford v. Washington,
Mungin also asserts that appellate counsel was ineffective for failing to raise on appeal the State's introduction during the penalty phase of two photographs of the victim of the Tallahassee crime. The same standard for introducing testimony of a prior violent felony conviction during the penalty phase applies to photographs. See generally Lockhart v. State,
We conclude that the two photographs of the Tallahassee victim admitted in this case were relevant to show the victim and circumstances of the Tallahassee shooting, and that even if not relevant, the admission of the photographs was harmless beyond a reasonable doubt. See Dufour,
2. Court's Prior Ruling
In the second claim raised in his habeas petition Mungin asks this Court to reconsider its ruling on direct appeal that the trial court's error in instructing the jury on both premeditated and felony murder was harmless. Since Mungin's direct appeal, this Court has reaffirmed that "[a] general verdict need not be reversed `where the general verdict could have rested upon a theory of liability without adequate evidentiary support when there was an alternative theory of guilt for which the evidence was sufficient.'" Teffeteller,
3. Ring v. Arizona
Mungin acknowledges that this Court has repeatedly rejected claims for relief under Ring, and states that he raises the claim only to preserve it for federal review. Moreover, as the State notes, this Court has now expressly held that Ring does not apply retroactively. See Johnson v. State,
CONCLUSION
For the reasons discussed above, we affirm the trial court's denial of Mungin's motion for postconviction relief and deny Mungin's petition for a writ of habeas corpus.
It is so ordered.
PARIENTE, C.J., and WELLS, LEWIS, CANTERO, and BELL, JJ., concur.
ANSTEAD and QUINCE, JJ., concur in result only.
NOTES
Notes
[1] Williams v. State,
[2] The trial court found two aggravating circumstances: (1) Mungin had previously been convicted of a felony involving the use or threat of violence to another person; and (2) Mungin committed the capital felony during a robbery or robbery attempt and committed the capital felony for pecuniary gain. See id. The trial court found no statutory mitigation and gave minimal weight to the nonstatutory mitigation that Mungin was not antisocial and could be rehabilitated. See id.
[3] These issues were: (1) whether the ial court erred in overruling a defense objection to the State's peremptory strike of an African-American prospective juror; (2) whether the evidence was insufficient to support a first-degree murder conviction; (3) whether the trial court erred in allowing the State to introduce irrelevant evidence that Mungin shot a collateral crime victim in the spine; (4) whether fundamental error occurred when a defense witness testified in the penalty phase that inmates serving life sentences are eligible for conditional release and could be released in as little as five years; (5) whether the trial court erred in instructing the jury on and in finding the aggravating circumstances of robbery and pecuniary gain; (6) whether the trial court erred in refusing to instruct the jury that Mungin's age could be considered in mitigation; (7) whether the trial court erred in failing to find and give some weight to unrebutted nonstatutory mitigation; (8) whether the death sentence is inappropriate if the Court eliminates the aggravating circumstances of robbery and pecuniary gain and considers mitigation that the trial court failed to find; and (9) whether Mungin's conviction and death sentence are unconstitutional. See id. at 1029 n. 4.
[4] Huff v. State,
[5] Lewis Buzzel, who assisted Cofer with Mungin's case, did not testify at the hearing.
[6] These issues are: (1) whether the failure of the trial judge and the Fourth Judicial Circuit to recuse themselves from Mungin's postconviction proceedings was fundamental error; (2) whether the trial court erred in failing to conduct an in-camera inspeсtion of exempted public records from the Duval County State Attorney's Office and the Duval County Sheriff's Office; (3) whether the trial court erred in denying Mungin's request to review Detective Gilbreath's notes of the interview with Mungin; (4) whether the trial court erred in summarily denying several of Mungin's claims of ineffective assistance of counsel; (5) whether the trial court erred in denying Mungin's claims of ineffective assistance of trial counsel during the guilt phase after an evidentiary hearing; (6) whether the trial court erred in denying Mungin's claim that the Public Defender's Office had an actual conflict of interest; and (7) whether the trial court erred in denying Mungin's claim of ineffective assistance of trial counsel during the penalty phase after an evidentiary hearing.
[7] These claims are: (1) Mungin received ineffective assistance of appellate counsel; (2) the Court should reconsider its ruling on direct appeal that the trial court's error in failing to grant Mungin's motion for judgment of acquittаl on the charge of premeditated murder did not require reversal; and (3) Mungin's death sentence is unconstitutional under Ring.
[8] For all death case postconviction motions filed after October 1, 2001, Florida Rule of Criminal Procedure 3.851 requires an evidentiary hearing "on claims listed by the defendant as requiring a factual determination." Fla. R.Crim. P. 3.851(f)(5)(A)(i); see also Amendments to Fla. Rules of Criminal Procedure 3.851, 3.852, & 3.993,
[9] Mungin admits that he raised the following claims in his postconviction motion solely to preserve them for federal review: Claim VI (failure to object to various comments and arguments by the State which diminished the jurors' sense of responsibility in violation of Caldwell v. Mississippi,
[10] In the alternative, Mungin asserts that the State violated Brady by failing to disсlose Kirkland's probation status as well as the recalled warrants. The trial court refused to address this claim because it was raised not in Mungin's consolidated amended motion for postconviction relief, but as a supplemental claim filed on the day of the evidentiary hearing. Despite the trial court's ruling, both Cofer and Kirkland were asked about these events at the evidentiary hearing and there was no evidence presented to support a finding that the State knew about Kirkland's probationary status or warrants. Kirkland testified that he did not disclose his probation to anyone at the State Attorney's Office and was unaware that a warrant for violation of probation had even been issued. Cofer testified that neither the State Attorney's Office nor the Public Defender's Office is involved in obtaining a warrant for violation of probation. Moreover, the warrants were recalled in February 1993, after Mungin's trial. The State could not suppress information that was not available.