RICHARD TODD ROBARDS v. STATE OF FLORIDA
No. SC15-1364
Supreme Court of Florida
April 6, 2017
Richard Todd Robards, also known as Damien Robards, appeals an order of the circuit court denying his motion to vacate judgment of two first-degree murder convictions and sentences of death filed under
FACTS AND PROCEDURAL BACKGROUND
Trial and Direct Appeal Proceedings
Robards was found guilty of two counts of first-degree murder for the 2006 deaths of Frank and Linda Deluca. Robards, the couple‘s personal trainer, murdered them during the course of a robbery in which he stole personal belongings of the Delucas, including a safe containing more than $88,000. The Delucas died of multiple sharp force wounds, and their home was set on fire after they were murdered. The facts of the offenses are set forth in detail in this Court‘s opinion affirming Robards’ convictions and sentences on direct appeal. See Robards v. State, 112 So. 3d 1256 (Fla. 2013).
The guilt phase of the trial took place from May 18 to May 21, 2010. The guilt phase was followed by a brief penalty phase on May 25, 2010, during which the State presented testimony from Linda Deluca‘s sister, and the defense presented character evidence about Robards’ personal and professional life using testimony from family members, friends, fellow inmates, and former clients. Id. at 1263. The jury recommended the death penalty for each murder by a vote of seven
In its sentencing order, the court found that four aggravating circumstances were proven by the State beyond a reasonable doubt and assigned each one of them great weight: (1) Robards was convicted of a prior capital felony (based on the contemporaneous murder of the second victim); (2) Robards committed each murder for pecuniary gain; (3) Robards committed each murder while engaged in a commission of a robbery (merged with pecuniary gain); and (4) each murder was especially heinous, atrocious, or cruel (HAC).
Although the jury did not receive evidence of mental health mitigation, the trial court weighed the evidence that was presented at the Spencer hearing and considered as statutory mitigation the following: (1) whether Robards suffered from an extreme mental or emotional disturbance; and (2) whether Robards suffered from an impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. The court rejected both of these statutory mitigating circumstances and explained its rationale in its sentencing order. The trial court did weigh Robards’ mental health as a nonstatutory mitigating circumstance.
The trial court considered a total of twelve nonstatutory mitigating circumstances. The trial court rejected Robards’ argument that Florida‘s budgetary crisis was a reason for not imposing the death penalty and his argument that the closeness of the jury‘s vote was a reason for not imposing the death penalty. Of the remaining ten mitigating circumstances, the trial court gave each one some weight: (1) family history; (2) no plan to murder; (3) good general conduct while in custody; (4) capacity to form positive relationships; (5) remorse and potential for rehabilitation; (6) traumatic injury based on PET scan and PET scan brain image comparison; (7) effect of steroids on brain injury and effect of steroids generally; (8) use of prescribed
steroids, interactions with other prescribed drugs, and withdrawal; (9) mental health issues; and (10) history of steady employment. All of the trial court‘s findings were as to each murder.
Id. at 1264-66.
On direct appeal, Robards raised four issues: (1) whether penalty phase counsel provided ineffective assistance; (2) whether a seven-to-five vote recommending death was unconstitutional; (3) whether the trial judge departed from judicial neutrality in suggesting that the State pursue the prior capital felony aggravating circumstance; and (4) whether improper comments by the prosecutor during closing argument warranted a new trial. Ultimately, this Court rejected all claims raised and affirmed Robards’ convictions and sentences of death. See Robards, 112 So. 3d at 1273.
Postconviction Proceedings
Robards filed a timely motion for postconviction relief raising six claims: (1) trial counsel was ineffective in failing to object to or attempt to suppress testimony, evidence, or prosecutorial argument regarding his offer to “make a deal” with Detective Anthony Monte and any statements related to that offer; (2) trial counsel failed to diligently, timely, and reasonably investigate mitigation evidence; (3) trial counsel‘s failure to object to prejudicial remarks during the prosecutor‘s closing argument constituted ineffective assistance of counsel; (4) the combination of the procedural and substantive errors during the guilt and penalty
Following the evidentiary hearing, the circuit court denied Robards’ motion for postconviction relief in its entirety. Robards appeals the denial of his motion raising three issues: (1) trial counsel was ineffective for failing to object to or attempt to suppress the testimony, evidence, or prosecutorial argument regarding Robards’ offer to make a deal; (2) trial counsel failed to diligently, timely, and reasonably investigate the mitigation evidence and make an adequate penalty phase presentation to the jury; and (3) cumulative error deprived Robards of a fair trial. Additionally, Robards claims that he is entitled to relief based on the United States Supreme Court‘s decision in Hurst v. Florida, 136 S. Ct. 616 (2016), as well as this Court‘s decisions in Hurst and related cases.
ANALYSIS
Ineffective Assistance of Guilt Phase Counsel
To prevail on a claim of ineffective assistance of counsel, the defendant must demonstrate that counsel‘s performance fell below an objective standard of reasonableness, and the defendant was prejudiced by counsel‘s deficiency such that there is a reasonable probability the result of the proceeding would have been different absent the error. Strickland v. Washington, 466 U.S. 668, 694 (1984). Both prongs of the Strickland test present mixed questions of law and fact. Thus, we employ a mixed standard of review, deferring to the trial court‘s factual findings that are supported by competent, substantial evidence, and reviewing the trial court‘s legal conclusions de novo. See Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004).
“Judicial scrutiny of counsel‘s performance must be highly deferential.” Strickland, 466 U.S. at 689. Further, “[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
Robards argues that guilt phase trial counsel rendered deficient performance for failing to object to or attempt to suppress testimony, evidence, and prosecutorial argument regarding Robards’ offer to make a deal with Detective Monte. The record reflects that Robards made a phone call from the Pinellas County Jail to Detective Monte on August 15, 2006, and left him the following voicemail message, which was introduced into evidence during the State‘s case-in-chief:
Detective Monte, this is Damien Robards. I‘m down here at the Pinellas County Jail. It‘s about two o‘clock. Listen, if you can come here and talk to me, and you guys are ready to make a deal, come in and talk to me, all right? Thanks.
During trial, Detective Monte testified that he went to see Robards in response to the voicemail message and that Robards said he wanted to make a deal. However, when Detective Monte informed Robards that he was not in a position to offer him
Robards argues that the voicemail message and conversation with Detective Monte constitute inadmissible plea negotiations under
Robards contends that his statement exhibited a subjective expectation to negotiate a plea deal because the conversation ended after Detective Monte informed Robards that he did not have the power to make a deal. Robards further asserts that his expectation was reasonable because he had previously spoken with Detective Monte about the murder of the Delucas. Furthermore, Robards argues he was prejudiced because it is a fundamental duty of counsel to preserve conceivable errors for appeal.
The postconviction court found that any subjective expectation by Robards about entering into a plea negotiation was not reasonable considering the totality of the circumstances. First, the call was made while Robards was under arrest for a drug incident; and second, the message was an unsolicited voicemail from a monitored jail line offering to make a deal to an unspecified crime. The court thus determined that the communication was simply an unsolicited, unilateral offer from which Robards could have had no reasonable expectation of negotiating a plea.
Because the voicemail and resulting conversation did not amount to a plea negotiation, the postconviction court observed that the statement could be offered against Robards as a party admission. See
Further, even if counsel should have objected to the introduction of the voicemail or attempted to suppress the evidence, we conclude that Robards cannot demonstrate prejudice under Strickland. The presence or absence of the voicemail is minimal considering the overwhelming evidence linking Robards to the Delucas’ murders. Therefore, there is no reasonable probability that the outcome of the guilt phase would have been different had counsel‘s objection been sustained or had counsel obtained a trial court ruling suppressing the voicemail. We set forth the compelling evidence of Robards’ guilt on direct appeal, stating:
Among the more substantial evidence is that Robards’ fingerprints were found at the crime scene on a piece of newspaper dated within one day of the murders. What is more, Frank Deluca tried to fight his attacker, and Robards’ DNA was found underneath his fingernails. The only other DNA that was identified during the fingernail analysis of Frank Deluca was that of the other murder victim, Frank Deluca‘s wife. Additionally, Robards talked about the Delucas’ safe for weeks before the murders, told many people that he had access to it, and tried to recruit help from Shane Harper to steal it. Then, after Robards murdered the Delucas, he made Robert Kenney an unwitting partner
in removing the safe from the Delucas’ home. In light of such compelling evidence of guilt, Robards is not entitled to relief.
Robards, 112 So. 2d at 1271. Thus, even if counsel‘s performance had been deficient, Robards was not prejudiced. Accordingly, we affirm the postconviction court‘s denial of relief as to this claim.
Hurst Relief
In Hurst v. Florida, the United States Supreme Court held that Florida‘s capital sentencing scheme is unconstitutional because “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury‘s mere recommendation is not enough.” 136 S. Ct. at 619. On remand, we held that “in addition to unanimously finding the existence of any aggravating factor, the jury must also unanimously find that the aggravating factors are sufficient for the imposition of death and unanimously find that the aggravating factors outweigh the mitigation before a sentence of death may be considered by the judge.” Hurst, 202 So. 3d at 54. Moreover, we concluded that “in order for a death sentence to be imposed, the jury‘s recommendation for death must be unanimous.” Id. Further, we determined that Hurst error is capable of harmless error review. Id. at 68. In Mosley v. State, 41 Fla. L. Weekly S629 (Fla. Dec. 22, 2016), we held that Hurst applies retroactively to defendants whose sentences became final after the United States Supreme Court issued its opinion in Ring v. Arizona, 536 U.S. 584 (2002). Robards’ convictions and sentences became final after Ring, thus Hurst is applicable to him.
On direct appeal, Robards challenged the constitutionality of the jury‘s bare majority recommendation of death, but based on existing precedent at the time, we concluded that the claim was without merit. See Robards, 112 So. 3d at 1267. In his postconviction appeal, Robards again claims he is entitled to relief from his death sentences based upon the seven-to-five jury recommendation of death. Therefore, as Hurst requires, we consider whether the error during Robards’ penalty phase proceeding was harmless.
“[I]n the context of a Hurst error, the burden is on the State, as the beneficiary of the error, to prove beyond a reasonable doubt that the jury‘s failure to unanimously find all the facts necessary for imposition of the death penalty did not contribute to [the] death sentence.” Hurst, 202 So. 3d at 68. As applied to the right to a jury trial with regard to the facts necessary to impose the death penalty, it must be clear beyond a reasonable doubt that a rational jury would have unanimously found that there were sufficient aggravating factors and that the aggravating factors outweighed the mitigating circumstances.
We conclude that the State cannot establish that the error in Robards’ case was harmless beyond a reasonable doubt. The jury in this case did not make any of the requisite factual findings, and the vote to impose a sentence of death was seven
CONCLUSION
For the foregoing reasons, we affirm the denial of postconviction relief as to Robards’ claim alleging that counsel was ineffective during the guilt phase of the trial. However, we must vacate Robards’ sentences of death and remand for a new penalty phase proceeding under Hurst.
It is so ordered.
PARIENTE, J., concurs with an opinion.
POLSTON, J., concurs in part and dissents in part with an opinion, in which CANADY and LAWSON, JJ., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
PARIENTE, J., concurring.
I agree that Robards is entitled to Hurst relief and should, therefore, receive a new penalty phase. I write to emphasize the woeful inadequacy of Robards’ penalty phase counsel who failed to present the jury with evidence of substantial mental health mitigation, which reinforces the necessity for a new penalty phase in this case. As I explained in my concurring opinion in Robards’ direct appeal, “the record before this Court raise[d] questions about” whether Robards’ penalty phase counsel was ineffective in presenting mental health mitigation, but “further factual development [was] necessary in order for this claim to be fairly and properly adjudicated.” Robards, 112 So. 3d at 1274 (Pariente, J., concurring). The postconviction proceedings below have now revealed the breadth of mitigation evidence that penalty phase counsel failed to reasonably investigate. Consequently, the jury in Robards’ case—which recommended his two death sentences by narrow votes of seven to five—was not presented with the full picture of Robards’ life when it made its recommendations. See id. at 1263.
Penalty phase counsel acknowledged in his testimony during the evidentiary hearing that the full extent of mental health mitigation was not known until “months after” the penalty phase jury recommended that Robards be sentenced to death. In this regard, penalty phase counsel did not have a full picture of Robards’ background before he decided against presenting mental health mitigation to the penalty phase jury. Consequently, the penalty phase jury was similarly denied the full picture of the mitigating circumstances in Robards’ life that may have affected its weighing of the aggravation and mitigation when deciding whether Robards was deserving of the ultimate punishment.
Thus, as penalty phase counsel acknowledged during the postconviction proceedings, the picture of Robards’ childhood that the penalty phase jury was presented with was incomplete. The penalty phase jury was not afforded the opportunity to evaluate this testimony against other testimony that depicted Robards as a happy child. “The jury vote in this case was seven to five in favor of a death recommendation. The swaying of the vote of only one juror would have made a critical difference here.” Phillips v. State, 608 So. 2d 778, 783 (Fla. 1992).
POLSTON, J., concurring in part and dissenting in part.
I concur with the majority‘s decision except its vacating of the death sentence pursuant to Hurst.
CANADY and LAWSON, JJ., concur.
An Appeal from the Circuit Court in and for Pinellas County, Joseph Anthony Bulone, Judge - Case No. 522006CF018453XXXXNO
James Vincent Viggiano, Jr., Capital Collateral Regional Counsel, and Raheela Ahmed, Maria Christine Perinetti, and Donna Ellen Venable, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Stephen D. Ake, Assistant Attorney General, Tampa, Florida, for Appellee
Notes
Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding. Evidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution under chapter 837.