Robert Ira PEEDE, Appellant,
v.
STATE of Florida, Appellee.
Robert Ira Peede, Petitioner,
v.
James R. McDonough, etc., Respondent.
Supreme Court of Florida.
*485 Nеal A. Dupree, Capital Collateral Regional Counsel Southern Region, Tiffany Murphy and Linda M. McDermott, Special Assistant CCR Counsel, and Andrea Harrington, Assistant CCR Counsel Southern Region, Fort Lauderdale, FL, for Appellant/Petitioner.
Bill McCollum, Attorney General, Tallahassee, FL, and Scott A. Browne, Assistant Attorney General, Tampa, FL, for Appellee/Respondent.
PER CURIAM.
Robert Peede appeals the circuit court's denial of his postconviction motion to vacate his conviction of first-degree murder and sentence of death and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. We affirm the trial court's denial of Peede's postconviction motion *486 and deny the petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL HISTORY
Peede was convicted of first-degree murder and sentenced to death for the killing of his wife. The essential facts are outlined in our opinion reviewing the denial of his first postconviction motion in Peede v. State,
The evidence at trial established that Peede returned to Miami to convince Darla [Peede's estranged wife] to go to North Carolina and serve as a decoy in an alleged scheme Peede had to kill his ex-wife and her boyfriend. Peede telephoned Darla and she agreed to pick him up at the airport. However, instead of returning to Darla's home as intended, they mistakenly got on the Florida Turnpike heading for Orlando. As they left the Miami area, Peede pulled a lock-blade knife and inflicted a superficial cut in Darla's side. Subsequently, outside of Orlando, Peede stopped the car, jumped into the back seat, and stabbed Darla in the throat. As a result of this injury, Darla bled to death. Peede was arrested in North Carolina before carrying out his scheme to murder his ex-wife, and he confessed to Darla's murder.
After his trial and conviction, a jury recommended the death penalty. The trial judge followed the jury's recommendation and sentenced Peede to death, finding three aggravating factors [n. 2] and one mitigating circumstance. The trial court found in mitigation that Peede was under the influence of extreme mental or emotional disturbance, but attributed little weight to this finding. On appeal, this Court affirmed Peede's conviction and, although we found that the murder was not cold, calculated and premeditated (CCP), we nevertheless upheld the death penalty. See Peede v. State,474 So.2d 808 (Fla. 1985).
[n. 2] The three aggravating factors found by the trial court were: (1) previous conviction of two felony crimes involving the use of force or threat to another person; (2) murder committed during the commission of a kidnapping; and (3) murder committed in a cold, calculated and premeditated manner.
Peede II,
We upheld the conviction and sentence on direct appeal. See Peede v. State,
The trial court eventually denied all of Peede's claims without an evidentiary hearing even though the State conceded the need for an evidentiary hearing on certain claims and the court had scheduled one earlier. On appeal, this Court denied relief on some claims, but remanded for an evidentiary hearing on Peede's claim that he had not received any records pursuant to his request under chapter 119, Florida Statutes; Peede's Brady claims; some of Peede's claims involving ineffective assistance of counsel; and on Peede's claims "concerning his mental competency, the adequacy of the examinations into his competence, and, especially, the adequacy of his counsel's investigation and representation concerning the mental issues." Id. at 259.[3] Upon remand and after an evidentiary hearing, the trial court found that no relief was warranted. Peede now appeals the trial court's denial of his postconviction claims.
Peede's Competency to Proceed with Postconviction Proceedings
Peede first argues that the trial court erred in finding Peede competent to proceed with postconviction proceedings. After our remand, defense counsel filed a motion to determine competency. Thereafter, the trial court appointed experts to examine Peede and conducted a competency hearing wherein testimony was presented by two experts for the defense and two experts appointed by the court. The two defense experts testified that Peede was unable to assist his counsel in the proceedings. The two court-appointed experts were unable to interview Peede because Peede refused; therefore, they were unable to render an opinion on competency. One court-appointed expert, Dr. Alan S. Berns, subsequently reviewed a videotaped interview conducted by a defense expert and thereafter opined in a written report that Peede was competent. Ultimately, the trial court determined that Peede was competent to proceed.
*488 At a status conference after this determination, Peede's new counsel again questioned Peede's competency, and the trial court reaffirmed its prior competency ruling but granted the State's motion for Peede to submit to an examination by a mental health expert selected by the State. The court also granted a defense motion for an additional examination and appointed Dr. Berns to examine Peede. Dr. Berns filed a written report stating that Peede was uncooperative and recommended that Peede be transferred to the psychiatric unit of the Florida State Prison where he could be further observed and evaluated. The State agreed, and Peede was transferred to a state mental health facility.
Thereafter, Dr. David Frank from the psychiatric unit of Union Correctional Institution submitted а report stating that Peede refused most services and evaluations. He concluded that Peede had a personality disorder with antisocial and borderline features that did not require inpatient treatment. Dr. Gloria Calderon, a senior physician at Union, also recommended that Peede's psychiatric classification be lowered because he had not received any mental health treatment that year.
The trial court then conducted another hearing to determine Peede's competency. Dr. Frank, the defense's only witness, testified that Peede was not incompetent to assist his counsel in the proceedings, and that Peede's unwillingness to discuss the circumstances surrounding the murder was not due to any mental illness. During this hearing, the court asked Peede why he would not talk with his lawyer about the murder:
Court: Mr. Peede, why won't you talk to your lawyer about these things?
Peede: Truth is, it hurts too much. So I'm not thinking about it, and I don't want to talk about it.
Court: So it's just a decision. You decided not to talk about these things with your attorney because it's too painful for you; is that what you're saying? Emotionally painful for you? Did you hear my question Mr. Peede?
Peede: Sir, I just told you. I don't think about it. I don't talk about it. That's the end of it. If you want to kill me, kill me. That's it. I'm through with it.
Moreover, although defense counsel asserted that Peede would not discuss the facts of the murder, the evidentiary hearing testimony of Dr. Faye Sultan, a defense witness, demonstrated that Peede had discussed the murder with her. The trial court subsequently found Peede competent to proceed, concluding, "Simply put, Mr. Peede could assist his attorneys, if he wanted to, but is instead choosing not to discuss the facts of this case. It is clear to this Court that Mr. Peede is not incompetent, simply uncooperative."
Legal Standard for Competency
The test for whether a defendant is competent to stand trial is "whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understandingand whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States,
"It is the duty of the trial court to determine what weight should be given to conflicting testimony." Mason v. State,597 So.2d 776 , 779 (Fla.1992). "The reports of experts are `merely advisory to the [trial court], which itself retains the responsibility of the decision.'" *489 Hunter v. State,660 So.2d 244 , 247 (Fla.1995) (quoting Muhammad v. State,494 So.2d 969 , 973 (Fla.1986)). Thus, when the experts' reports or testimony conflict regarding competency to proceed, it is the trial court's responsibility to consider all the relevant evidence and resolve such factual disputes. See, e.g., Hardy [v. State], 716 So.2d [761,] at 764 [(Fla.1998)] (citing Hunter,660 So.2d at 247 ).
"Where there is sufficient evidence to support the conclusion of the lower court, [this Court] may not substitute [its] judgment for that of the trial judge." Mason,597 So.2d at 779 . A trial court's decision regarding competency will stand absent a showing of abuse of discretion. See, e.g., Hardy,716 So.2d at 764 ; Carter v. State,576 So.2d 1291 , 1292 (Fla.1989). Thus, the issue to be addressed by this Court is whether the circuit court abused its discretion in finding [the defendant] competent to proceed in his postconviction proceedings. In addressing that issue, we are mindful that a trial court's decision does not constitute an abuse of discretion "unless no reasonable person would take the view adopted by the trial court." Scott v. State,717 So.2d 908 , 911 (Fla.1998).
Alston v. State,
Upon review of the record, with special attention to the lack of cooperation by Peede, we conclude there is sufficient evidence to support the conclusion of the trial court finding Peede competent to proceed in postconviction proceedings. The trial court entertained multiple motions from the defense regarding Peede's competency, ordered Peede to a psychiatric facility to be observed even after finding him competent, held multiple hearings during which the court discussed the issue with Peede himself, and considered various experts' testimony and written reports. In shоrt, the record supports the trial court's ruling that Peede was competent to proceed in postconviction proceedings, and that any difficulties in communicating with counsel were of Peede's own choosing rather than due to any mental defects.
Ineffective Assistance of Counsel at the Penalty Phase
Peede next argues that his counsel was ineffective during the penalty phase of his trial. During the penalty phase, defense counsel called one expert witness, psychiatrist Dr. Robert Kirkland, to testify regarding Peede's mental health. Dr. Kirkland had been practicing for over twenty years and had given testimony in court as an expert in forensic psychiatry fifty to one hundred times before Peede's trial. Dr. Kirkland interviewed Peede twice, once before trial and once after Peede was convicted. He expressed his opinion that the capital felony "of which Mr. Peede was convicted was committed while Mr. Peede was under the influence of extreme mental and emotional disturbance" based on the interviews he had with Peede and Peede's self-reports. On cross-examination, Dr. Kirkland admitted that he had not reviewed prior medical records or interviewed witnesses who knew Peede. Defense counsеl also presented numerous supportive letters from Peede's family and friends. As noted previously, the jury recommended a sentence of death.
At the postconviction evidentiary hearing, Nancy Wagoner, Peede's aunt, testified to Peede's early life. She testified that Peede was born with a severe blistering skin condition and was sometimes unable to walk. Peede also suffered from scoliosis, a curvature of the spine severe enough to require braces. Peede's mother, who later committed suicide, would *490 spank him for making mistakes on his homework, and he would take blame for things he did not do. Peede and his girlfriend got married when Peede was sixteen because his girlfriend was pregnant, but she left him after a year. Peede married his second wife, Geraldine, after she became pregnant, and left Geraldine and their two children a year later. Wagoner went to California to see Peede in jail after he was convicted of second-degree murder. Peede told Wagoner to leave because the authorities were going to kill her and sent Wagoner a magazine in which he believed he saw Geraldine posing nude. Wagoner then testified that Peede struck her shortly before Darla's death and stated that no one had asked her to testify on Peede's behalf at his trial, but she would have testified if asked.
John Bell, a childhood friend of Peede's, testified that he had not seen Peede in years. During Bell's testimony, Peede threatened and accused Bell of sleeping with Geraldine and fathering Peede's youngest son. Peede then absented himself from the hearing, and Bell continued his testimony, stating that Peede was teased because of his blisters and did not have many friends. Bell testified that Peede had a bad temper and confronted Bell about sleeping with Geraldine, which caused Bell to be cautious around Peede.
Michael Thomas Brown, Peede's cousin, testified that Peede had blisters and felt he was smaller than others. Peede was also overly aggressive with women, and told Brown that Peede was in a relationship with Calvin Wagner, implying that Peede was bisexual. Peede also accused Brown of sleeping with Geraldine.
Dorothy Sedgwick, the prosecutor in Peede's trial, testified that all the witnesses Peede's counsel interviewed in North Carolina were from the State's witness list. She testified that Peede's counsel, Theotis Bronson, maintained the view that Peede would be conviсted of no more than second-degree murder in the case.
Joseph DuRocher, Peede's other trial counsel, testified that he was the senior attorney in the felony division of the public defender's office at the time of Peede's trial. He stated that Peede was his most difficult client. The prosecutor offered Peede life in prison, but Peede refused; DuRocher thereafter took the second chair in the case with Bronson assuming primary responsibility. DuRocher stated that the preparation for a penalty phase should begin when the case is filed, but admitted that he did not prepare for Peede's penalty phase before trial, relying on a couple of weeks between the guilt phase and the penalty phase to prepare. DuRocher did not furnish Dr. Kirkland any background records or names of witnesses to prepare Dr. Kirkland for his interview with Peede. DuRocher was not aware of Peede's skin disease, scoliosis, discipline by his mother, his insecurities, his alcohol and drug abuse, or his mother's suicide. On cross-examination, DuRocher testified that Peede would not allow his counsel to cross-examine Darla's daughters, refused to wear a suit after the first day of trial, triеd to walk out of trial, and told DuRocher to "keep [his] goddamn hands off [him]." DuRocher also testified that he was aware of Peede's California case, and that he had contact with Nancy Wagoner. He also said that he had called some mitigation witnesses, but that relying on anything other than statutory mitigators would have been novel during the time of Peede's trial.
Theotis Bronson, Peede's other trial counsel, now a judge, testified that he had never tried a death penalty case before Peede's case. He stated that Peede wanted the trial to happen fast and Peede wanted to be executed. Bronson did not recall specific responsibilities of the two *491 defense attorneys during the penalty phase. Peede never assisted his counsel and did not provide background information, so Bronson sought DuRocher's help because Peede would not communicate. However, Bronson did know about Peede's mother's suicide. Bronson stated that Dr. Kirkland's first report regarding Peede's competency to stand trial turned up items of interest for the penalty phase, but Bronson did not recall telling Dr. Kirkland that Peede seemed to have several personalities, that his mother committed suicide, or that Darla hoped to reconcile with Peede.
Dr. Sultan testified at the postconviction hearing that she interviewed Peede on three occasions, and that Peede was very hostile during the first interview. She described his blisters and his attachment to his mother, and said that Peede felt sexually inadequate and emotionally scarred. He felt responsible for his mother's death, and he suspected family members of sleeping with his second wife Geraldine. Peede knew Darla for ten or eleven days before they got married, and thought she was posing nude in magazines with Geraldine but came to Florida to reunite with Darla. Dr. Sultan interviewed witnesses who said Peede had been acting crazily in the weeks prior to Darla's murder. Dr. Sultan testified that Dr. Kirkland's evaluation was inadequate and she opined that Peede had Delusional Disorder, Jealous Type and Paranoid Personality Disorder. She believed that Peede qualified for the statutory mitigator of inability to conform his behavior to the law. On cross-examination, Dr. Sultan admitted that both Dr. Kirkland and she felt Peede was paranoid, and that Peede knew right from wrong. She also expressed her opinion that any psychologist working to support the imposition of the death penalty was unethical.
Dr. Fisher, a clinical psychologist, testified that he performed a competency review of Peede in 2000 and again in 2003. He concluded that Peede had "Delusional Disorder of a paranoid jealous type." He also believed that Dr. Kirkland's evaluation was deficient because although he discussed paranoia and delusion, he did not explain how it related to the crime. Dr. Fisher opined that Peede was delusional at the time of the murder and that both statutory mental mitigators of extreme emotional disturbance and the inability to conform conduct applied to Peede's case.
Dr. Sidney Merin, a State witness, testified that Peede would not allow an examination. Dr. Merin looked at Peede's records and concluded that Peede had a Paranoid Personality Disorder with borderline antisocial features. He ruled out a delusional disorder and stated that Peede knew the wrongfulness of his actions at the time of Darla's murder and was capable of conforming his behavior to the requirements of the law. Peede's behavior was goal-directed, coherent, and relevant; also, he was able to make dеcisions. Dr. Merin disagreed with Dr. Kirkland's finding of the emotional distress mitigator but thought Dr. Kirkland's conclusion that Peede had a paranoid disorder was consistent with his own conclusions.
Dr. Frank, a psychiatrist serving jail inmates who had testified during the competency hearing, was also called by the State. Dr. Frank interviewed Peede three times and spent about nine hours of time with him. Dr. Frank concluded that Peede had Delusional Disorder, Jealous Type, and a personality disorder with antisocial and borderline features or traits. He felt Peede knew the wrongfulness of Darla's murder because when a hitchhiker got in the car, Peede hid the knife he used to kill Darla, and he knew to pull the car over before stabbing Darla. Finally, Dr. Frank opined that Peede had the ability to choose what he wanted to do and when, but that *492 the statutory extreme emotional disturbance mitigator would apply to Peede.
The circuit court denied all of Peede's claims regarding his counsel's ineffectiveness. The court primarily found that Peede refused to provide his counsel with names of witnesses who could present mitigating evidence. Second, the court found that trial counsel's actions in attempting to locate and interview backgrоund witnesses were adequate, especially in the face of Peede's lack of cooperation. Third, the court held that the testimony of three postconviction defense mitigation witnesses established that Peede had always been an angry and suspicious person and this evidence would not have been helpful to Peede. Finally, the court found that Dr. Kirkland's testimony would not have been enhanced even if he had been provided more background information.
Ineffectiveness under Strickland
Following the United States Supreme Court's decision in Strickland v. Washington,
First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.
Maxwell v. Wainwright,
Trial counsel has an obligation to conduct a reasonable investigation into mitigation. Strickland,
*493 Deficient Performance
In Peede's case, the circuit court concluded that defense counsel was faced with an uncooperative defendant who would not provide counsel with names of witnesses to interview regarding mitigation. In Cherry v. State,
Cherry failed to provide defense counsel with the names of any witnesses who would testify on Cherry's behalf. During the evidentiary hearing, trial counsel testified that Cherry did not provide him with names of any witnesses who could have provided mitigating evidence. Further, upon commencement of the penalty phase proceeding, trial counsel asked Cherry in open court whether he knew "of anyone who would be able to come in and substantiate mitigating grounds that the Court has enumerated here." Cherry responded in the negative. As the Supreme Court nоted in Strickland, "the reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Strickland,466 U.S. at 691 ,104 S.Ct. 2052 . By failing to provide trial counsel with the names of witnesses who could assist in presenting mitigating evidence, Cherry may not now complain that trial counsel's failure to pursue such mitigation was unreasonable. See id. Accordingly, it appears the trial court correctly found that counsel was not deficient in failing to investigate and present mitigating evidence because Cherry refused to communicate with trial counsel or provide him with names of witnesses to call for mitigation purposes.
Id. at 1050.
Because Peede would not assist his counsel in providing any mitigating evidence or circumstances, the trial court concluded he cannot now complain that his counsel performed ineffectively in failing to pursue additional mitigation. The trial court also found that despite Peede's lack of cooperation, Peede's counsel employed an investigator and interviewed Peede's family and friends. Counsel also submitted some thirteen letters of support from Peede's friends and family to the jury. Ultimately, the trial court concluded that this performancе, although not perfect, was adequate to meet the demands of Strickland and its progeny. We agree with that conclusion. Factually the record supports both the finding of lack of cooperation by Peede and counsel's efforts notwithstanding Peede's recalcitrance. We find no Strickland error in the trial court's evaluation and conclusions.
The mitigating evidence Peede presented during the evidentiary hearing was his mother's suicide, his blistering skin condition as a child, his paranoid behavior regarding his wives' alleged sexual exploits, and his feelings of inadequacy. While this evidence could indeed be seen as mitigating, this mitigation would have been offset by the testimony of Peede's aggressive and impulsive behavior towards women, including his hitting Nancy Wagoner prior to killing Darla, and his bizarre accusations to various friends and family of sleeping with his second wife, Geraldine. It appears that Peede's aggression has not subsided in the years since the murder either. This is illustrated by Peede's reaction when his counsel put his childhood friend John Bell on the stand during the evidentiary hearing; Peede accused him of fathering his youngest child and threatened that he would shoot Bell if he had a gun. With this background of bizarre behavior and hostility, and because of Peede's refusal to allow his counsеl to cross-examine *494 Darla's daughters while they were on the stand during the guilt phase of his trial, reasonable defense counsel would hesitate before putting any of Peede's friends and family on the stand during the penalty phase.
With regards to counsel's failure to provide Dr. Kirkland with sufficient background information to evaluate Peede for the penalty phase, we note that Dr. Kirkland, a highly respected psychiatrist, interviewed Peede twice. He, in fact, provided evidence favorable to Peede in that he opined that the extreme emotional disturbance mitigator applied in Peede's case, and the trial court agreed. The fact that Peede produced more favorable expert testimony at his evidentiary hearing is not reason enough to deem trial counsel ineffective. See Gaskin v. State,
Prejudice
Even if deficient performance had been established, it is apparent that prejudice was not. As noted above, in order for a defendant to meet the prejudice prong of Strickland, "the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined." Maxwell,
Mental Health Examination
Peede next argues that he was denied an adequate mental health examination in violation of Ake v. Oklahoma,
In Ake, the United States Supreme Court held that
when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent *495 psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.
We have consistently held that a mental health investigation is not rendered inadequate "merely because the defendant has now secured the testimony of a more favorable mental health expert." Asay,
[I]t appears that much of the difference between Dr. Kirkland's conclusions and those of the current defense experts is semantic. As explained by Dr. David Frank, testifying for the State, the earlier version of the Diagnostic and Statistical Manual (or "D[SM] III") references a "paranoid disorder" that is now referred to in the current version of the Manual (the "DSM-IV-TR") as a "delusional disorder." Therefore, although Dr. Kirkland did not label his diagnosis as a "delusional disorder," it appears that this was simply because he quite appropriately used the term ("paranoia") recognized by the then-current diagnostic manual.
In short, we find no abuse of discretion or error in the trial court's ultimate conclusion that the mental health evaluations of Dr. Kirkland were adequate under Ake. Therefore, we affirm the circuit court's denial of this claim.
Brady Claims
Peede next argues that the State withheld Darla's diary and police reports from Peede's murder conviction in California in violation of Brady v. Maryland,
To establish prejudice or materiality under Brady, a defendant must demonstrate "a reasonable probability that the jury verdict would have been different had the suppressed information been used at trial." Smith v. State, [931 So.2d 790 , 796 (Fla.2006)] (citing Strickler v. Greene,527 U.S. 263 , 289[,119 S.Ct. 1936 ,144 L.Ed.2d 286 ] (1999)). "In other words, the question is whether `the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" Id. (quoting Strickler,527 U.S. at 290 ,119 S.Ct. 1936 ).
Ponticelli v. State,
Giving deference to the trial court on questions of fact, this Court reviews de novo the application of the law and independently reviews the cumulative effect of the suppressed evidence. See Mordenti,
Darla Peede's Diary
This Court held in Peede's initial postconviction appeal that the record did not disclose whether the State had possession of Darla's diary in its files or whether Peede had access to it, and that an evidentiary hearing was warranted on the issue. Peede II,
Statements from Witnesses in California
Concerning statements from witnesses to the California crime, the prosecutor testified at the evidentiary hearing that she received documents related to the case and tracked down eyewitnesses and Peede's defense attorney in the case. She also stated that any information the prosecution received would have been given to the defense pursuant to discovery. The prosecutor testified that she had numerous discussions with defense counsel Bronson about how the jury would react to a prior murder conviction, and that Bronson was aware the prosecution intended to use the conviction in trial.
*497 Defense counsel DuRocher testified that the defense "knew of the California homicide. I think we'd even had some conversation with the lead investigator there." He also admitted that a statement from a witness taken by the same detective that took other witness statements in California was in the Public Defender file for the case. Defense counsel Bronson testified that he was aware of the information surrounding the California shooting, and recalled reading a number of reports.
"There is no Brady violation where the information is equally accessible to the defense and the prosecution, or where the defense either had the information or could have obtained it through the exercise of reasonable diligence." Provenzano v. State,
Peede's Competency at the Time of Trial
Peede next argues that he was not mentally competent to stand trial in 1984. The trial court denied Peede's claim as "wholly without merit" because even accepting their testimony, the defense mental health experts testified that Peede's delusional disorder was narrowly confined to the single topic of his former wives being unfaithful to him, rather than his ability to assist counsel.
The test for whether a defendant is competent to stand trial is "whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understandingand whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States,
Trial counsel DuRocher testified that he never had a client as difficult as Peede, but trial counsel Bronson testified that he never thought Peede was insane or delusional. Dr. Kirkland was first appointed to evaluate Peede's competency prior to trial in 1983. He found that Peede had a paranoid disorder but was not incompetent to stand trial. The original trial judge, Michael Cycmanick, testified at the evidentiary hearing that Peede appeared to be acting freely, voluntarily, and *498 with a clear head when he decided to absent himself from trial. Judge Cycmanick had been involved with competency issues many times before Peede's trial both as a judge and as a defense attorney.
The defense experts at the postconviction evidentiary hearing testified that Peede's delusional disorder was narrowly circumscribed to his belief that his former wives were not faithful to him, and that Peede knew right from wrong. Dr. Fisher testified that Peede only freezes when the subject of the murder comes up. Further, Dr. Merin, the State's expert, specifically testified that Peede was competent to stand trial.
Based on this evidence, we conclude the trial court properly denied this claim after determining that the issue had been addressed in the earlier trial proceedings, and after the evidentiary hearing on this issue. Furthermore, based on this finding, there was no error in the determination that Peede's counsel was not ineffective in presenting the issue of competency to the original trial court.
Ring v. Arizona
Peede next argues that Florida's death penalty statute is unconstitutional under Ring v. Arizona,
PETITION FOR WRIT OF HABEAS CORPUS
Ineffectiveness of Appellate Counsel
Failure to Challenge the Introduction of Collateral Crime Evidence
In his first issue in his petition for writ of habeas corpus, Peede argues that appellate counsel was ineffective because counsel failed to raise the issue that the trial court erred in admitting collateral crime evidence. Claims of ineffective assistance of appellate counsel are appropriately presented in a petition for writ of habeas corpus. See Freeman v. State,
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.
Pope v. Wainwright,
First, Peede argues that appellate counsel was ineffective for failing to argue on appeal that the trial court erred (1) in allowing Tanya Bullis, the victim's daughter, to testify that Darla had told her that she was afraid of Peede trying to kill her along with Geraldine and Calvin; (2) in allowing Rebecca Keniston, the victim's other daughter, to testify that the victim was worried Peede was going to kill Geraldine and "a male person"; (3) in allowing Geraldine Peede, Peede's second wife, to testify regarding the hostile contact she had with Peede; (4) in allowing Special Agent Kent Wilson to testify concerning a statement Peede made to him concerning his plans for killing Geraldine and Calvin after he killed Darla, and that Peede told him that at one point he planned to use Darla as a lure; and (5) in allowing Detective Ross Frederick to testify concerning a confiscated loaded shotgun from Peede's residence. Peede also argues that appellate counsel was ineffective in failing to argue that the trial court erred in allowing pornographic mаgazines and photographs into evidence[5] and that the prosecutor improperly relied on the above evidence to confuse and anger the jury.
A trial court's ruling on the relevancy of evidence and whether or not the probative value is outweighed by the danger of unfair prejudice is governed by an abuse of discretion standard of review. Williamson v. State,
Regarding Geraldine's testimony, in Muhammad v. State,
We find merit in the State's contentions. While Peede argues that the prosecutor needlessly relied on the uncharged attempted murders of Geraldine and Calvin, this Court has held that evidence of uncharged crimes can be admitted if inseparable from the crime for which the defendant is being tried. See Smith v. State,
Similarly, we agree the trial court did not err in allowing Special Agent Kent Wilson's testimony regarding Peede's statements about killing Geraldine and Calvin because the incident was inextricably intertwined with the rest of the criminal episode and the State was properly allowed to establish context in which the current homicide took place. Finally, Detective Ross Fredericks' testimony regarding the shotgun he confiscated from Peede's residence fits with the rest of the story of this crime, and also serves as evidence of consciousness of guilt. See Anderson v. State,
Failure to Challenge the Victim's Daughter's Identification Testimony and the Admission of Nude Photographs
Peede next argues that appellate counsel was ineffective in failing to raise the claim that the trial court erred in allowing Rebecca Keniston, the victim's daughter, to testify regarding the identification of the victim's body. Peede also argues that the trial court erred in allowing the introduction of nude photographs into evidence, and that appellate counsel was ineffective in failing to raise these claims on direct appeal.
*501 Victim's Identification
In Thompson, this Court stated:
Courts of this state have followed a long-standing rule that relatives may not be called solely to identify their deceased victims when unrelated, credible witnesses are available to make an identification. The rule is based on the theory that the testimony of relаtives is likely to be inflammatory and may arouse unwarranted jury sympathy for the victim, interjecting matters not germane to the issue of guilt or punishment.
In Peede's case, the prosecutor argued that there had been difficulty identifying the victim's body because the murder occurred in transit through multiple states and the body was found and the autopsy performed in a state other than where the victim lived. Rebecca Keniston's testimony regarding the identification was limited:
Q. And what did you do with Harvey Amerson [a police officer in Georgia]?
A. We went to identify my mother's body.
Q. Do you remember what kind of place you went to to do that?
A. A funeral home.
Q. And did you look at more than one body at that funeral hоme?
A. No.
Q. Was Harvey Amerson with you when you looked at the body?
A. Yes.
Q. When you looked at the body, could you recognize or identify the body that you looked at?
A. Yes.
Q. And who was that body?
A. My mother, Darla Peede.
Q. When you were at the funeral home or while you were there, was any personal articles turned over to you?
A. Yes.
Q. What type of personal articles?
A. Jewelry.
Q. Could you be more specific?
A. A wedding band, a necklace with a heart and a watch, all gold.
Q. Did you recognize those particular pieces of jewelry?
A. Yes.
Q. Where had you seen those pieces of jewelry before?
A. On my mother.
The trial court also verified that the witness would be testifying to other matters besides the identification of the victim, and she was instructed about the importance of maintaining her composure. The State also coordinated her testimony with the previous witnesses' testimony so she would not have to look at any photographs to testify regarding identification. Under these circumstances, while there is little evidence in the record that the State actually *502 made a concerted effort to find an unrelated witness to testify regarding the identification of the victim's body, we conclude that any error that may exist in the admission of Rebecca Keniston's identification testimony was harmless. Mansfield v. State,
Nude Magazines and Photographs
The State correctly contends that the photographs now objected to formed the motive to kidnaр Darla as part of Peede's plan to murder Geraldine and Calvin. See Muhammad,
Right of Confrontation
Peede next argues that his right to confrontation articulated in Crawford v. Washington,
Prosecutor's Comments and Sentencing Instructions
Peede next argues that the trial court and the State unconstitutionally minimized his jurors' sense of responsibility in violation of Caldwell v. Mississippi,
Peede's counsel also did not object to the court's statements during voir dire. During voir dire, the trial court correctly told potential jurors of the gravity of their duty, telling them "[T]he jury's recommendation is given very heavy weight." Although Peede argues that the trial court and prosecutor erred in emphasizing the jury's role as only a recommender of a sentence, we note that Peede's counsel also referred to the jury's advisory sentence as a recommendation when addressing a potential juror and during his closing argument in the penalty phase. Peede's counsel did not object to the court's jury instructions in the guilt phase of the trial, to the prosecutor's calling the jury's sentence a "recommendation" to the court, or to the trial court's jury instructions during the penalty phase. Moreover, the trial court expressed the importance of the jury's role in the penalty phase:
The fact that the determination of whether a majority of you recommended a sentence of death or sentence of life imprisonment in this case can be reached by a single ballot should not influence you to act hastily or without due regard to the gravity of these proceedings. Before you ballot, you should carefully weigh, sift and consider the evidence, and all of it, realizing that human life is at stake, and bring to bear your best judgment in reaching your advisory sentence.
Because we conclude there is no merit to Peede's argument that these statements were erroneous, appellate counsel was not ineffective in failing to raise these issues on appeal. Id. (citing Lambrix v. Singletary,
CONCLUSION
In light of the above analysis, we affirm the trial court's denial of the claims set out in Peede's postconviction motion and deny Peede's petition for writ of habeas corpus.
It is so ordered.
LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.
NOTES
Notes
[1] The fifteen claims were: (1) Peede was not competent to stand trial; (2) he received an inadequate psychiatric evaluation; (3) he received ineffective assistance of counsel; (4) counsel was ineffective in failing to present an insanity defense; (5) there was a violation of Brady v. Maryland,
[2] The six new issues were: (1) whether the death penalty is constitutional; (2) whether this Court failed to conduct a meaningful harmless error analysis concerning the finding that the murder was cold, calculated and premeditated (CCP); (3) whether the sentencing court failed to properly and timely impose a written sentence of death; (4) whether improper hearsay testimony was admitted; (5) whether the prohibition against interviewing jurors after trial is constitutional; and (6) whether state agencies improperly withheld files and records in violation of chapter 119, Florida Statutes (1993).
[3] This Court interpreted Peede's claims on appeal as being (1) the trial court's due process violation in summarily denying Peede's claims after both the State and the trial court had conceded the need for an evidentiary hearing and when the trial court failed to attach specific portions of the record; (2) the State's failure to disclose public records in violation of chapter 119, Florida Statutes; (3) Peede's incompetence to stand trial; (4) an expert's inadequate psychiatric evaluation; (5) trial counsel's ineffective assistance throughout the course of the trial; (6) the State's Brady violations; (7) the unconstitutionality of the capital sentencing statute; (8) the trial judge's improper instruction to the jury concerning aggravators; and (9) the trial court's failure to consider all nonstatutory mitigators. This Court addressed claims (1), (2), (3), (4), (5), and (6) but held that claims (7), (8), and (9) were procedurally barred because they were raised or should have been raised on direct appeal. Peede II,
[4] Peede argues that, to the extent this Court finds that defense counsel had available the information that was in the State's possession, his counsel was ineffective during the guilt phase of his trial, and confidence in the outcome of the trial is undermined. However, even if Peede were able to prove that his counsel had Darla's diary and the documents from the California shooting, we conclude that he did not meet the deficient performance and prejudice prongs of Strickland. The diary's contents were of questionable relevance and their admissibility was questionable, and highlighting records from a previous murder conviction would obviously be questionable strategy during the guilt phase of a trial. See Occhicone,
[5] This issue is more fully addressed under the third issue of Peede's Petition for Writ of Habeas Corpus below.
[6] While the State argues that any error concerning the admission of the nude photographs wаs not preserved for appeal, Peede argues correctly that after the State moved to introduce nude magazines into evidence, Peede's counsel asked for a bench conference. The contents of that conference are not in the record, and Peede argues that Peede's counsel objected to the magazines during the bench conference, therefore preserving this issue for appellate review. Peede furthers the argument by stating that when the State moved to introduce its next exhibit, nude photographs, into evidence, Peede's counsel objected as to relevancy and predicate.
This Court has held that the fact that there are unreported parts of proceedings in a record does not prejudice an appeal. See Turner v. Dugger,