GEORGE PORTER, JR., Petitioner-Appellee, versus ATTORNEY GENERAL, STATE OF FLORIDA, SECRETARY, DEPARTMENT OF CORRECTIONS, Respondents-Appellants.
No. 07-12976
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
December 18, 2008
D. C. Docket No. 03-01465-CV-ORL-KRS
Appeal from the United States District Court for the Middle District of Florida
(December 18, 2008)
Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
I. BACKGROUND
A. The Crimes
In 1985, Porter moved in with Williams in Melbourne, Florida. Their relationship was stormy almost from the beginning. Their relationship was aggravated by the hostility between Williams’ children and Porter, especially Williams’ daughter, Amber.
Porter and Williams’ relationship ended in July 1986, after Porter damaged Williams’ car and threatened to kill both Williams and Amber. Porter left Melbourne shortly after the relationship ended. Meanwhile, Williams began a new relationship with Walter Burrows.
A few days before the murders, Porter suggested to his friend Nancy Sherwood that she would read about him in the paper. Porter also visited Dennis Gardner, another friend, and asked to use Gardner‘s Jennings semi-automatic pistol. Gardner refused to loan Porter the pistol. The pistol later disappeared from Gardner‘s home.
Porter visited Williams on October 8, 1986, the day before the murders. Williams called the police because she was afraid of him. Later that evening, Porter went to two cocktail lounges. He spent the night with his friend Lawrence Jury.
Amber awoke to the sound of gunshots the next morning, October 9, 1986, at 5:30 A.M. She saw Porter standing over her mother‘s body. Amber testified that Porter approached her, pointed a gun to her head, and said, “boom, boom, you‘re going to die.” Burrows then entered the room, struggled with Porter, and forced him outside. Amber meanwhile called for help.
B. Trial
1. Guilt Phase
Porter was charged with two counts of murder and one count each of armed robbery and aggravated assault. He pleaded not guilty to all four charges. He was initially represented by the public defender, who withdrew in March 1987 because of a conflict. After Sam Bardwell,1 a private criminal defense attorney, was appointed to represent Porter, Porter asked the court for permission to represent himself at trial.2 The court granted Porter‘s request, apparently after conducting a Faretta inquiry.3 The court also designated Bardwell as standby counsel.
On November 30, 1987, the court gave Porter, who was proceeding pro se at that time, copies of the two reports and as much time as he needed to review them. Porter took a few moments to review them. After confirming that Porter reviewed and understood the reports, the court conducted another Faretta inquiry. The court again found Porter competent to represent himself at trial.
The court thereafter conducted a hearing regarding Porter‘s competence to stand trial.4 Porter also proceeded pro se at that hearing. Porter and the State stipulated that the psychiatrists’ reports would be received as evidence instead of live testimony. Finding no issue with Porter‘s competency, the court again determined that Porter was competent to stand trial.
Porter‘s trial began immediately after the November 30, 1987 competency hearing. Porter abruptly stopped the trial in early December 1987, when the State
The court refused to accept Porter‘s pleas on those bases. After consulting standby counsel, Porter told the court that he would plead guilty to all four charges, but that he did not want to provide a factual basis for those pleas. The court then extensively inquired into whether the pleas were voluntary. The prosecutor subsequently presented the factual basis supporting guilt. The court accepted Porter‘s guilty pleas to all four counts. In admitting his guilt, Porter said that he changed his pleas “[b]ecause [he] want[ed] to get it over with.”
2. Penalty Phase
Bardwell, who had been serving as guilt-phase standby counsel, became Porter‘s “full” counsel for the penalty phase. Although Bardwell was an experienced criminal defense attorney, Porter‘s penalty phase trial was the first that he had handled as a defense attorney. Bardwell tried to present two witnesses in mitigation: Patricia Porter, Porter‘s ex-wife, and Lawrence Jury, Porter‘s invalid neighbor. Bardwell presented a “Dr. Jekyll-Mr. Hyde” theory. According to Bardwell‘s theory, whenever Porter drank alcohol, Mr. Hyde came out, and Porter could not control his temper or actions.
Bardwell next tried to present Jury‘s testimony. Jury, however, did not appear, likely because he could not get a ride to the courthouse. After being granted a delay, Bardwell read a portion of Jury‘s deposition testimony into the record. Jury‘s testimony supported Bardwell‘s theory.
After hearing the State‘s case in aggravation and Porter‘s case in mitigation, the jury unanimously recommended a death sentence for Williams’ murder and, by a 10-2 vote, a death sentence for Burrows’ murder. The court found that four aggravating factors applied in Williams’ murder: (1) “[t]he defendant was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person,”
C. Direct Appeal
In June 1990, the Florida Supreme Court affirmed the convictions and sentences, but struck the HAC factor. Porter v. State, 564 So. 2d 1060, 1063 (Fla. 1990) (per curiam). The court found “that Porter‘s . . . crime . . . was [not] meant to be deliberately and extraordinarily painful.” Id. The U.S. Supreme Court denied certiorari on February 19, 1991. Porter v. Florida, 498 U.S. 1110, 111 S. Ct. 1024, 112 L. Ed. 2d 1106 (1991).
D. State Post-conviction and Habeas Proceedings
In June 1992, Porter filed, pursuant to
Porter also argued that Bardwell acted ineffectively during the penalty phase of the trial by failing to investigate and present evidence of Porter‘s mental health, abusive childhood, problems with alcohol, or military service. The post-conviction court conducted an evidentiary hearing on the issue whether trial counsel rendered ineffective penalty phase assistance. Porter presented extensive statutory and non-statutory mitigating evidence5 that trial counsel did not present during the penalty phase.
First, Porter presented evidence of his abusive childhood. He witnessed his father routinely beat his mother, sometimes sending her to the hospital. Among his siblings, Porter was most often the target of his father‘s rage, which was aggravated by Porter‘s attempts to protect his mother and his father‘s daily activity of getting drunk.
Second, Porter presented evidence of his military history. He joined the U.S. Army at about age 16, at the time of the Korean War. He was awarded the National Defense Service Medal for enlisting in a time of conflict, the U.N. Service Medal for serving with U.N. forces in the Korean conflict, the Korean
Third, Porter presented the testimony of Dr. Henry Dee, a qualified expert in forensic neuropsychology. Dee testified as to Porter‘s emotional and mental health. Dee testified that he reviewed records of Porter‘s history, interviewed him, and administered various accepted psychological tests. He determined that Porter suffered from post-traumatic stress and organic brain syndrome, which could manifest as impulsive, violent acts. He stated that those acts could be caused or aggravated by alcohol use. He concluded that Porter suffered from extreme mental or emotional disturbance at the time of the crimes.6 He further concluded that Porter‘s ability to conform to the law at the time was substantially impaired.7
The post-conviction court denied relief. The Florida Supreme Court affirmed, in a 5-2 decision, the denial of post-conviction relief. Porter v. State, 788 So. 2d 917, 928 (Fla. 2001) (per curiam).8 The Florida Supreme Court
E. Federal Habeas Proceedings
In October 2003, Porter filed, pursuant to
II. STANDARDS OF REVIEW
Because Porter filed his federal habeas petition after April 24, 1996, his claims are governed by the Antiterrorism and Effective Death Penalty Act of 1996
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
“When examining a district court‘s denial of a
III. DISCUSSION
A. Competency Hearing Claim
Porter argues that he was constructively denied the assistance of counsel at his November 30, 1987 competency hearing.10 The state argues that Porter did not exhaust this issue in the state courts. We agree with the state.
Porter failed to present in the state courts the argument that he had been constructively denied counsel. Porter did not argue in the state courts that he was entitled to counsel at his competency hearing. Instead, Porter argued that his standby counsel provided ineffective assistance at the competency hearing. See Smith v. Robbins, 528 U.S. 259, 286, 120 S. Ct. 746, 764–65, 145 L. Ed. 2d 207 (2000) (using the distinction drawn in Penson v. Ohio, 488 U.S. 75, 88–89, 109 S. Ct. 346, 354, 102 L. Ed. 2d 300 (1988), between the constructive denial of counsel and ineffective assistance of counsel). If, as the district court concluded, Porter “effectively raise[d]” the issue in his brief to the Florida Supreme Court, that did not exhaust the issue for habeas review. An issue may not be raised for the first
Even if Porter had exhausted the issue, the district court erred by applying, contrary to Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), a new rule of law. “Under Teague a new rule of criminal procedure generally may not be applied in a federal habeas proceeding where the judgment in question became final before the rule was announced.” Schwab v. Crosby, 451 F.3d 1308, 1323 (11th Cir. 2006). A new rule “‘breaks new ground,’ ‘imposes a new obligation on the States or the Federal Government,’ or was not ‘dictated by precedent existing at the time the defendant‘s conviction became final.‘” Graham v. Collins, 506 U.S. 461, 467, 113 S. Ct. 892, 897, 122 L. Ed. 2d 260 (1993) (citation omitted). According to ADEPA, federal courts operate within the narrow body of precedent of the Supreme Court.
The district court erred by concluding that clearly established federal law entitled Porter to counsel at a second competency hearing. The Supreme Court has not held that a court must appoint counsel for a competency hearing after a defendant had been found competent and waived his right to counsel. The district court based its decision on the decisions in United States v. Purnett, 910 F.2d 51 (2d Cir. 1990), and United States v. Klat, 156 F.3d 1258 (D.C. Cir. 1998), neither of which constitutes clearly established federal law. See Williams, 529 U.S. at 381, 120 S. Ct. at 1506–07; Dombrowski, 543 F.3d at 1274. These decisions are inapposite because the defendants were allowed to proceed without counsel despite the trial courts’ doubts about, and before the courts ever determined, the defendants’ competency. Purnett, 910 F.2d at 54–56; Klat, 156 F.3d at 1263. In contrast, Porter‘s competency was not in question. The trial court revisited the issue of Porter‘s competency as a precautionary measure, and counsel did not have to be appointed for this second inquiry. See United States v. Morrison, 153 F.3d 34, 45 (2d Cir. 1998) (distinguishing Purnett); Wise v. Bowersox, 135 F.3d 1197, 1203 (8th Cir. 1998).
Porter has not, and cannot, point to any clearly established federal precedent existing on February 19, 1991, that specifically imposes a duty on standby counsel
B. Penalty Phase Claim
Bardwell became Porter‘s full counsel for the penalty phase. Porter argues that Bardwell rendered ineffective penalty phase assistance because Bardwell did little, if anything, to rebut the State‘s case. Porter argues that Bardwell responded to the State‘s case with minimal mitigating evidence and that additional mitigating evidence was available. Porter further argues that the additional evidence would have significantly affected the jury‘s sentencing recommendation and the court‘s ultimate sentencing decision.
We analyze Porter‘s penalty phase claim under the two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish ineffective assistance, Porter must show “that counsel‘s representation fell below an objective standard of reasonableness,” id. at 688, 104 S. Ct. at 2064, and “that the deficient performance prejudiced the defense,” id. at 687, 104 S. Ct. at 2064. We “need not address the performance prong if the defendant cannot meet the prejudice prong, or vice versa.” Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000) (internal citation omitted); see, e.g., Strickland,
To establish prejudice in a case challenging a death sentence, the court decides “whether there is a reasonable probability that, absent [counsel‘s unprofessional] errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S. Ct. at 2069. This standard presumes a reasonable sentencer. Id. at 695, 104 S. Ct. at 2068 (finding irrelevant “the idiosyncracies of the particular decisionmaker, such as unusual propensities toward harshness or leniency“).
In assessing prejudice, the reviewing court considers the totality of the evidence. Id. at 696, 104 S. Ct. at 2069. The court “reweigh[s] the evidence in aggravation against the totality of available mitigating evidence.” Wiggins v. Smith, 539 U.S. 510, 534, 123 S. Ct. 2527, 2542 (2003). “[The] court . . . must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” Strickland, 466 U.S. at 696, 104 S. Ct. at 2069.
The Florida Supreme Court considered the total available evidence in assessing Porter‘s penalty phase claim. The majority determined, after balancing the mitigating factors against the aggravating factors, that the post-conviction court correctly found that Porter had failed to show prejudice. Porter, 788 So. 2d at 925. We address those mitigating and aggravating factors in turn.
a. Mitigating Factors
1. Alcohol Abuse
The Florida Supreme Court concluded that Porter presented “far from conclusive” evidence of his alcohol abuse. Id. at 924. In so concluding, the Florida Supreme Court reiterated the trial court‘s finding that
[Porter] was sober the night before the murders and he was sober immediately after the murders. He was able to drive and transact business. There is nothing in the record which would support a finding that this mitigating circumstance exists.
Id. (citation omitted). “Given this finding, as well as the conflicting testimony of [Porter]‘s siblings,” id., the Florida Supreme Court determined that Porter had not
2. Abusive Childhood
The Florida Supreme Court concluded that “[a]ny presentation of [Porter‘s abusive childhood] would . . . have been insignificant.” Id. Porter was about fifty-four years old at the time of trial. Following precedent, the Florida Supreme Court determined that evidence of Porter‘s abusive childhood would have been given “little, if any, mitigating weight when compared to the aggravating factors” because of the remoteness of time between his childhood and the trial. Bolender v. Singletary, 16 F.3d 1547, 1561 (11th Cir. 1994) (rejecting the same claim made by a Florida death row inmate who was twenty-seven years old at the time of the murders). The Florida Supreme Court concluded that Porter had not shown prejudice in counsel‘s failure to present evidence of Porter‘s abusive childhood.
3. Military History
The Florida Supreme Court concluded that the mitigating effect of Porter‘s military history “would have [been significantly] reduced” if considered as a whole. See Porter, 788 So. 2d at 925. Although Porter served with distinction and received an honorable discharge, he went absent without leave (“AWOL“) three times while overseas. When he returned to the United States, he went AWOL again for about a year. For doing so, he received a special court martial, a
six-month sentence, and a $50.00 per month fine. Id. at 924-25. Because the trial judge and jury would have been presented with evidence of military discipline, the Florida Supreme Court found no prejudice in counsel‘s failure to present evidence of Porter‘s military history.4. Emotional and Mental Health
The Florida Supreme Court found that counsel was not ineffective under Strickland for failing to present statutory mitigating evidence11 of Porter‘s emotional and mental health. Id. at 923-24. The post-conviction court “[found] Dr. Dee‘s testimony to be speculative and not supported by the evidence to a reasonable scientific certainty.” Id. at 923 (citation omitted). Instead, the court relied on the testimony of Dr. William Riebsame, the State‘s expert witness. The Florida Supreme Court adopted the post-conviction court‘s finding, deferring to “the trial court‘s superior vantage point in assessing the credibility of witnesses and in making findings of fact.” Id.
b. Aggravating Factors
The Florida Supreme Court struck the HAC aggravating factor on Porter‘s direct appeal, leaving three aggravating factors. Porter, 564 So. 2d at 1063. After
1. Cold, Calculated, and Premeditated12
The state trial court found that the “homicide . . . was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification.” This factor is one “of the most serious aggravators set out in the statutory scheme.” Buzia v. State, 926 So. 2d 1203, 1216 (Fla. 2006) (per curiam) (citation omitted). The factor applied here because
[Porter] had made clear his intent to kill Evelyn Williams, and advised her family through three separate phone calls of this intent. . . . Porter previously had threatened to kill Williams and her daughter. He watched Williams’ house for two days just before the murders. Apparently he stole a gun from a friend just to kill Williams. [Then] he told another friend that she would be reading about him in the newspaper. While Porter‘s motivation may have been grounded in passion, it is clear that he contemplated this murder well in advance.
Porter, 788 So. 2d at 925 (citations omitted).
2. Burglary13
The state trial court found that Porter committed the murder while committing a burglary. The court found that
3. Another Capital or Violent Felony Conviction14
The state trial court found that Porter “was previously convicted of another capital felony or of a felony involving the use or threat of violence to the person.” The factor is “especially weighty” under Florida‘s statutory sentencing scheme. Frances v. State, 970 So. 2d 806, 817 (Fla. 2007) (per curiam) (citation omitted). The factor may apply even if the other felony conviction is a contemporaneous, not prior, conviction. See Correll v. State, 523 So. 2d 562, 568 (Fla. 1988) (per curiam). Accordingly, the trial court found that “[t]his aggravating factor applies to both the murder of Evelyn Williams and the murder of Walter Burrows, even though both murder[s] and the aggravated assault of Amber Williams were committed in one episode.”
c. Balancing the Mitigating and Aggravating Factors
The Florida Supreme Court determined that Porter had not met his burden to show prejudice under Strickland. Porter, 788 So. 2d at 925. The majority found
There is additional postconviction expert testimony regarding mitigation which the trial court found to be entitled to little weight in light of conflicting expert testimony. The trial judge found the additional nonstatutory mitigation to be lacking in weight because of the specific facts presented. Finally, following a full evidentiary hearing, the trial judge determined that the additional mitigators were outweighed by the weighty aggravators of a prior violent felony and a cold, calculated, and premeditated murder. We agree.
The district court rejected the Florida Supreme Court‘s balancing of the mitigating and aggravating factors. In rebalancing those factors, the district court asserted that “[t]he trial judge correctly characterized two of the aggravators as ‘technical’ and found both the heightened premeditation and the HAC factors inapplicable to the Burrows murder.” Porter, 2007 WL 1747316, at *27. The district court further asserted that, after the Florida Supreme Court struck the HAC aggravating factor as to Williams’ murder, “the aggravation evidence at trial boiled down to two technical aggravators and heightened premeditation, itself a rather esoteric concept.” Id. The district court determined that “the balance ha[d] unquestionably shifted away from aggravation.” Id. at *28.
The district court concluded that “the state courts failed to properly consider the weight of the mitigating evidence.” Id. The district court apparently found
The district court further concluded that “the state courts simply chose not to give any weight” to the evidence of Porter‘s abusive childhood and military history. Id. The district court found “no support in the record . . . that the effects of child abuse diminish over time so as to become insignificant by age 54.” Id. at *30. It also asserted that “the fact that [Porter] went AWOL while in the military does not necessarily diminish his honorable and distinguished service.” Id.
The district court, moreover, rejected the Florida Supreme Court‘s weighing of Porter‘s mitigating evidence of emotional and mental health. The district court found “no factual support for the [post-conviction] court‘s conclusion that Dr. Dee‘s testimony was directly challenged [by Dr. Riebsame] or not worthy of consideration.” Id. at *29. The district court suggested that Riebsame, who did not personally examine Porter, may not have contradicted Dee at all. The district court accordingly concluded that “the state court made no credibility findings; rather it simply discounted [the] significance [of Dee‘s testimony].” Id. at *30.
In short, it is obviously difficult, if not impossible, to have confidence in a sentence that was imposed based upon a one-sided presentation, i.e., unchallenged aggravation and no mitigation, when it is later demonstrated that substantial mitigation exists and one of the most serious aggravators was improperly considered and stricken on appeal. To approve of counsel‘s default . . . is tantamount to holding that the defendant was not entitled to the benefit of counsel at his penalty phase proceeding.
Id. at *31 (quoting Porter, 788 So. 2d at 932 (Anstead, J., concurring in part and dissenting in part)). Accordingly, the district court found that counsel‘s deficient performance was prejudicial under Strickland.
The district court recognized that its analysis of Porter‘s penalty phase claim was subject to AEDPA. Id. at *26. The court asserted, however, that AEDPA “does not require district courts to uphold a state court decision simply because a reasonable judge could reach that same conclusion.” Id. The district court found support in Justice Stevens’ opinion in Williams v. Taylor for rejecting the Florida Supreme Court‘s balancing of the aggravating and mitigating factors:
In sum, the statute directs federal courts to attend to every state-court judgment with utmost care, but it does not require them to defer to the opinion of every reasonable state-court judge on the content of federal law. If, after carefully weighing all the reasons for accepting a state
court‘s judgment, a federal court is convinced that a prisoner‘s custody – or, as in this case, his sentence of death – violates the Constitution, that independent judgment should prevail. Otherwise the federal “law as determined by the Supreme Court of the United States” might be applied by the federal courts one way in Virginia and another way in California. In light of the well-recognized interest in ensuring that federal courts interpret federal law in a uniform way, we are convinced that Congress did not intend the statute to produce such a result.
Id. (citing Williams, 529 U.S. at 389-90, 120 S. Ct. at 1511 (opinion of Stevens, J.)).
The district court erred by relying on the above excerpt from Williams as a basis for rejecting the Florida Supreme Court‘s application of Strickland here for two reasons. First, the district court relies on an interpretation of AEDPA to which a majority of the U.S. Supreme Court has not subscribed.15 Second, the district court overlooks that “an unreasonable application is different from an incorrect one.” Bell v. Cone, 535 U.S. 685, 694, 122 S. Ct. 1843, 1850, 152 L. Ed. 2d 914 (2002) (citing Williams, 529 U.S. at 411, 120 S. Ct. 1495 (“[A] federal habeas court may not issue the writ simply because that court concludes in its
In overlooking that difference, the district court did not properly defer to the Florida Supreme Court‘s balancing of the aggravating and mitigating factors. The district court took out of context the state trial court‘s characterization of the previous conviction and burglary aggravating factors. The trial court had indeed called those factors “technical in nature” during Porter‘s sentencing. But it did so in the context of explaining why it did not impose the death penalty for Burrows’ murder.16 The trial court did not try to negate the heavy weight of those aggravating factors under Florida‘s statutory sentencing scheme.
The district court also did not properly defer to the Florida Supreme Court‘s adjudications and findings of fact. First, even if the district court correctly16
Second, the district court noted that the record does not show how the mitigating effect of Porter‘s abusive childhood had become insignificant by the time of the murders. Nonetheless, the Florida Supreme Court‘s conclusion to that effect is reasonable, as it follows precedent. See id. (citing Bolender, 16 F.3d at 1561; Francis v. Dugger, 908 F.2d 696, 703 (11th Cir. 1990); Bottoson v. State, 674 So. 2d 621 (Fla. 1996) (per curiam)). We have in prior habeas cases deferred to the Florida Supreme Court‘s conclusion that, in light of the defendant‘s age at the time of the crime, this mitigating factor “is entitled to little if any, mitigating weight when compared to the aggravating factors.” Bolender, 16 F.3d at 1561. We decide no differently here.
Third, the district court asserted that Porter‘s military history “cannot simply be ignored because in the view of the state court it may have been subject to impeachment.” Porter, 2007 WL 1747316, at *30. In so asserting, the district court implies that the Florida Supreme Court applied Strickland incorrectly when
Finally, the district court erred by not properly deferring to the state post-conviction court‘s findings as to Porter‘s emotional and mental health. The expert witness for the state, Dr. Riebsame, testified that the methodology of the defense expert, Dr. Dee, was unreliable. The questionable accuracy of the test results and Porter‘s failure to manifest mental problems during his competency evaluations provided substantial evidence for the trial court to conclude that Porter was not suffering from a mental illness. Based on its factual finding, to which we defer, see Bottoson, 234 F.3d at 534, the state court reasonably concluded that counsel had no duty to further investigate Porter‘s mental health. See Newland v. Hall, 527 F.3d 1162, 1213 (11th Cir. 2008); see, e.g., Williams v. Head, 185 F.3d 1223, 1239-40, 1244 (11th Cir. 1999).
IV. CONCLUSION
The district court erroneously granted habeas relief as to both claims of ineffective assistance of counsel. The court erred by basing on a new rule of law its grant of habeas relief as to Porter‘s competency hearing claim. The court also erred by not giving proper AEDPA deference to the Florida Supreme Court‘s adjudication and findings of fact relating to Porter‘s penalty phase claim. Accordingly, we reverse and enter judgment for the State.
REVERSED.
Notes
State v. Porter, No. 86-5546-CF-A, slip op. at 9–10, 13 (18th Jud. Cir. Brevard County July 12, 1995) (citations omitted).The Defendant . . . argues that counsel was ineffective for failing to object to the Defendant having to read and evaluate the mental health reports himself and then defend against them. The record reflects that the Defendant knowingly waived his right to counsel and was made aware of the perils of self-representation. . . . The trial court appointed Sam Bardwell for the purpose of giving legal advice when needed. At no time did the Defendant object to this arrangement. Clearly, the Defendant acted as his own attorney. He may not now complain “that his ‘co-counsel‘, provided for the purpose of giving advice upon request, ineffectively ‘co-represented’ him . . . .” Thus, this claim is denied.
The Defendant‘s allegations that counsel was ineffective for failing to pursue mental health experts for the preparation of possible defenses is without merit. The defendant knowingly and voluntarily waived his right to counsel. He “was the architect of his defense at trial.” . . . [S]tandby counsel was appointed to provide legal advice upon request. The Defendant cannot now complain that “co-counsel” was ineffective.
The state trial court found that the previous conviction and burglary aggravating factors applied in Burrows’ murder. It found no mitigating factors. If the court had adopted the State‘s recommended “score card” approach, the “score” would have been 2-0, favoring the death penalty. The court then likely would have imposed the death penalty for Burrows’ murder. The trial court noted during sentencing, however, that the Florida Supreme Court disapproved of that approach in State v. Dixon, 283 So. 2d 1 (Fla. 1973), rev‘d on other grounds, State v. Dene, 533 So. 2d 265 (Fla. 1988). The Dixon court
emphasized that the procedure to be followed by trial judges and juries is not a mere counting process as an X number of aggravating circumstances and Y number of mitigating circumstances, but rather a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present.
Id. at 10. In refusing to apply the score card approach, the trial court imposed a life sentence for Burrows’ murder.