LUCIOUS BOYD, Aрpellant, vs. STATE OF FLORIDA, Appellee. LUCIOUS BOYD, Petitioner, vs. JULIE L. JONES, etc., Respondent.
No. SC13-244, No. SC13-1959
Supreme Court of Florida
[December 17, 2015]
Lucious Boyd appeals a final order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under
I. BACKGROUND AND FACTS
Lucious Boyd was convicted for the first-degree murder, armed kidnapping, and sexual battery of Dawnia Dacosta and sentenced to the penalties of death, life imprisonment, and fifteen years’ imprisonment, respectively. Boyd v. State, 910 So. 2d 167, 176-77 (Fla. 2005).
A. Trial and Direct Appeal Proceedings
On direct appeal, we set forth the relevant factual and procedural background as follows:
The evidence presented at trial revealed the following facts. In the early morning hours of December 5, 1998, Dawnia Dacosta‘s car ran out of gas while she was on her way to her home in Deerfield Beach, Florida, from a midnight church service. She had just exited from Interstate 95 (I-95) onto Hillsboro Beach Boulevard and pulled onto the shoulder. She then took a red gas can she kept in her car, walked about a block east to a nearby Texaco gas station, and bought a gallon of gas. At approximately 2 a.m., during the time she was at the gas station, Dacosta spoke with two other customers, Lisa Bell and Johnnie Mae Harris. She asked Bell for a ride back to her car, but Bell had walked to the station and so could not give Dacosta a ride. Bell and Harris then watched Dacosta speak with a black male in a van in the station‘s parking lot. Harris asked the man if he was going to help Dacosta, and the man nodded, indicating yes. Bell later told the police that the van she saw was greenish-blue in color, while Harris said that she thought the van was burgundy. Though somewhat unsure about the van‘s color, Harris was certain that she saw the word
“Hope” on its side. In a photo lineup and at trial, Harris identified the man she saw in the van that night as Lucious Boyd. Boyd spent the evening of December 4 with Geneva Lewis, his girlfriend, at her mother‘s home. Boyd left the house around 10 or 11 p.m., and Lewis did not see him again until the morning of December 5, at around 9 or 10 a.m. Lewis testified that on December 4 and 5, Boyd was driving a green church van with writing on its side and that the van belonged to Reverend Frank Lloyd of the Hope Outreach Ministry Church, for whom Boyd performed occasional maintenance work.
Dacosta‘s family began searching for her after she did not return home on December 5. They found her car at an I-95 exit and began circulating fliers with Dacosta‘s photograph, indicating that she was missing, throughout the area. Bell and Harris saw the fliers, recognized Dacosta as the woman with the gas can at the Texaco station on December 5, and contacted the police with their information.
On December 7, Dacosta‘s body was discovered in an alley behind a warehouse on 42nd Street in Deerfield Beach. The body was wrapped in a shower curtain liner, a brown, flat bed sheet, and a yellow, flat bed sheet. A purple duffel bag and two large black trash bags covered her head. It was determined that she had been dead for between thirty-six and seventy-two hours.
At trial, it was stipulated that Dacosta died due to a penetrating head wound and that the bruising on her head was consistent with but not exclusive to the face plate of a reciprocating saw. Wounds to her chest, arms, and head were consistent with but not exclusive to a Torx brand torque screwdriver, and she had defensive wounds on her arms and hands. There was bruising to her vagina that was consistent with sexual intercourse, although the medical examiner could not determine whether the intercourse was consensual or nonconsensual. Dacosta had thirty-six superficial wounds on her chest, four on the right side of her head, and twelve on her right hand, some being consistent with defensive wounds and some being consistent with bite marks. One fatal wound to the head perforated the skull and penetrated Dacosta‘s brain.
On March 17, 1999, while Detectivеs Bukata and Kaminsky of the Broward County Sheriff‘s Office were investigating another crime unrelated to Dacosta‘s death, they saw a green van in the Hope Outreach Ministry Church parking lot. The van had burgundy writing
on it that read “Here‘s Hope.” Bell would later identify the church‘s van as the same van she had seen on the morning of December 5 at the Texaco station. The detectives decided to investigate, and their inquiries as to the owner of the van led them to Reverend Lloyd. When the detectives questioned Lloyd about the location of the van on the night of December 4, Lloyd‘s secretary, who was present at the questioning, remarked that Lucious Boyd had driven the van on that weekend. On December 4, Boyd had taken Reverend Lloyd to pick up a rental car in the church‘s green 1994 Ford van. Reverend Lloyd further testified that he instructed Boyd to take the van back to the church but that Boyd did not return the van until Monday, December 7. Reverend Lloyd also stated that when he left the van with Boyd, various tools owned by the church, including a set of Torx brand screwdrivers and a reciprocating saw, were in the van, as well as a purple laundry bag that the pastor used to deliver his laundry to the cleaners. When Reverend Lloyd returned on December 15, he discovered that the screwdrivers, the saw, and the laundry bag were missing. Boyd was arrested for Dacosta‘s murder on March 26, 1999. Seminal fluid taken from Dacosta‘s inner thigh matched the DNA profile of Boyd. Tests also did not eliminate Boyd as a match for a hair found on Dacosta‘s chest. A DNA profile consistent with Boyd‘s was found in material taken from under Dacosta‘s fingernails. In addition, fingerprints taken from the trash bag found around the victim‘s head matched fingerprints of Boyd‘s girlfriend, Geneva Lewis, and her son, Zeffrey Lewis. Tire marks on a sheet covering the victim‘s body were consistent with the tires on the church van, although trial expert Terrell Kingery, a senior crime laboratory analyst for the Orlando Regional Crime Laboratory, testified that he could not say for certain that the van‘s tires made the marks because over 1.5 million tires could have made the tracks on the sheet. Dr. Steven Rifkin, a private dentist and a forensic odontologist with the Broward County Medical Examiner‘s Office, testified that bite marks on Dacosta‘s arm were, within a reasonable degree of certainty, made by Boyd‘s teeth.
On April 1, Detective Bukata obtained a warrant to search the apartment of Boyd and Lewis, which was a block east of the Texaco station. Detective Bukata arrived at the apartment and told Lewis to leave with her children for a few days so that the officers could fully search the apartment. The investigators found blood at various
locatiоns throughout the apartment. Blood found on the underside of the carpet and on the armoire matched Dacosta‘s DNA profile. The shower curtain rings were unsnapped, and there was no liner to the shower curtain. Carpet fibers taken from the yellow sheet in which Dacosta‘s body was wrapped matched characteristics of carpet samples taken from Boyd‘s apartment. Lewis had previously lived with Boyd at his apartment but had moved out in October of 1998. While living with Boyd, Lewis had purchased a queen-size bed, which she left at the apartment when she moved. Lewis and her three children moved back in with Boyd in February of 1999 and discovered that the bed was no longer at Boyd‘s apartment. When she asked about it, Boyd told her that he had given it away but would get it back. When she inquired about it again, Boyd told her that she would not want that bed and that he would get her another one. Lewis also identified the flat bed sheets, one brown and one a “loud yellow,” that were found around Dacosta‘s body as similar to ones she had owned while living at Boyd‘s apartment but that she no longer knew where they were or if they were at Boyd‘s apartment or at her mother‘s home.
A jury convicted Boyd of first-degree murder, sexual battery, and armed kidnapping. The trial court subsequently conducted a penalty phase proceeding, during which both sides presented evidence. The jury unanimously recommended that Boyd be sentenced to death. The trial court followed the jury‘s recommendation and imposed a death sentence, finding and weighing two aggravating factors, one statutory mitigating factor, and five nonstatutory mitigating factors. State v. Boyd, No. 99–5809 (Fla. 17th Cir. Ct. order filed June 21, 2002) (sentencing order). The trial court also sentenced Boyd to fifteen years’ imprisonment for the sexual battery and to life imprisonment for the armed kidnapping charges.
Id. at 174-77 (footnotes omitted). This Court affirmed Boyd‘s convictions and sentence of death. Id. at 194.
B. Postconviction Relief Proceedings
On May 29, 2009, Boyd filed an amended motion to vacate his convictions and sentences, adding claims that newly discovered evidence undermined the reliance of the forensic evidence used to convict and sentence, and that the State committed a Brady1 violation. Boyd subsequently filed a second amended rule 3.851 motion on March 23, 2012.
II. POSTCONVICTION RELIEF CLAIMS
A. Actual Juror Bias Claims
Boyd asserts that he is entitled to a new trial because two jurors failed to disclose information pertinent to his decision to retain them for jury service, thereby denying him a fair and impartial jury. The present appellate claim involves issues of fact considered and conclusions of law made by the circuit court. This Court employs a mixed standard in reviewing a postconviction court‘s denial of postconviction relief, “deferring to the postconviction court‘s factual findings that are supported by competent, substantial evidence, but reviewing legal conclusions de novo.” Victorino v. State, 127 So. 3d 478, 486 (Fla. 2013) (citing Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004)); Jackson v. State, 127 So. 3d 447, 460 (Fla. 2013) (“This Court accords deference to the postconviction court‘s factual findings following its denial of a claim after an evidentiary hearing.“).
Boyd argues that jurors Tonja Striggles and Kevin Rebstock failed to disclose information concerning their criminal histories, which denied Boyd a fair and impartial jury at trial. According to Boyd, the presence of Juror Striggles and Juror Rebstock—one, a convicted felon who had not timely had her civil rights restored; the other, a former misdemeanor defendant for whom adjudication had been withheld—on the jury of his criminal trial was inherently prejudicial to his legal interests. Consequently, Boyd asserts, because his constitutional right to a fair trial was denied when he was convicted by a jury that consisted of said jurors, a new trial must be granted without any further showing of actual bias or prejudice. We disagree.
As an initial matter, Boyd‘s reliance on our decision in Lowrey v. State, 705 So. 2d 1367 (Fla. 1998), is misplaced. In Lowrey, the First District affirmed the defendant‘s conviction for carrying a concealed firearm but certified for review the following question as one of grеat public importance:
MUST A CONVICTED DEFENDANT SEEKING A NEW TRIAL DEMONSTRATE ACTUAL HARM FROM THE SEATING OF A JUROR WHO WAS UNDER CRIMINAL PROSECUTION WHEN HE SERVED BUT THOUGH ASKED, FAILED TO REVEAL THIS PROSECUTION?
Juror Striggles’ criminal history consisted of the following incidents: (1) making a bomb threat and committing extortion (August 1979); (2) making a threatening phone call (December 1980); (3) twice pleading guilty to reporting false bombings (August 1983 and October 1986), and violating the probation order associated with each conviction; (4) pleading guilty to the misdemeanor of contributing to the delinquency of a minor in Georgia (March 1986); and (5) pleading guilty to one count of possession of a firearm by a convicted felon and
The record also reflects that Juror Rebstock was arrested in Broward County in November 1991 and charged with misdemeanor solicitation of prostitution; however, the presiding court withheld adjudication. During voir dire in the present case, Rebstock reported on the voir dire questionnaire form that he did not have any family or friends involved in the legal system. He did not report his own encounter with law enforcement, and no further inquiries were made by the trial judge or counsel for either party concerning Rebstock‘s answer to this question.
The circumstances found in the present case do not implicate the “clear perception of unfairness” as contemplated in Lowrey. As the Second District cogently explained, “[t]he purpose of disqualifying a person who has a pending prosecution is to avoid the possibility that that рerson might vote to convict in the
Next, case law—both from this Court and from other appellate courts throughout the nation—supports our rejection of Boyd‘s claim that he is entitled to
Although a criminal defendant has a constitutional right to be tried by an impartial jury, a criminal defendant does not have a constitutional right to be tried by a jury free of convicted felons. Instead, the right to be tried by a jury free of convicted felons is granted by statute. And by statute, a violation of this “right” only requires a new trial if the defendant demonstrates that such a violation “actual[ly] prejudice[d]” him.
Michigan v. Miller, 759 N.W.2d 850, 855-56 (Mich. 2008) (footnotes omitted); see also Hunt v. Maryland, 691 A.2d 1255, 1266-67 (Md. 1997) (“What is required of jurors is that they be without bias or prejudice for or against the defendant and that their minds be free to hear and impartially consider the evidence and render a fair verdict thereon.“); Washington v. Cleary, 269 P.3d 367, 370 (Wash. Ct. App. 2012) (“The disqualification criterion [for convicted felons addressed] here is by
However, if a criminal defendant has failed to establish that a particular juror could not be fair and impartial and follow the law as instructed by the trial court, then it is unreasonable to further ascertain whether the juror‘s status as a convicted felon rendered him or her more favorable to the State or the defense. In other words, we do not see the efficacy in belaboring the direction in which a felon-juror‘s bias cuts in the absence of legally sufficient evidence showing that the juror was actually biased against the defendаnt. See United States v. Boney, 97 F. Supp. 2d 1, 6 (D.D.C. 2000) (“Even if this Court did not credit the Juror‘s explanation as
Besides, we do not think that it is pragmatic to promulgate a per se rule that one‘s status as a convicted felon denotes inherent bias against a criminal defendant‘s legal interests. Otherwise, courts would be placed in the precarious position of ordering new trials based not on legally sufficient evidence of actual bias or prejudice, but wholly on gut reactions to sociological generalizations of human tendencies. See Uribe, 890 F.2d at 562 (“To be accorded weight, a bias claim requires more than subjective characterizations unanchored in the realities of human experience.“); Boney, 977 F.2d at 633 (“A per se rule [requiring a new trial whenever a felon serves on a jury] would be appropriate, therefore, only if one could reasonably conclude that felons are always biased against one party or another. But felon status, alone, does not necessarily imply bias.“).
Indeed, such a categorical rule is repugnant to the actual bias standard established in our jurisprudence. As further analyzed below, for claims оf juror bias this Court has repeatedly required that the defendant bear the burden of pointing to evidence on the face of the record which exhibits the subject juror‘s lack of impartiality. See Lebron v. State, 135 So. 3d 1040, 1058 (Fla. 2014) (citing Carratelli v. State, 961 So. 2d 312, 323 (Fla. 2007)); see also Smithers v. State, 18 So. 3d 460, 465 (Fla. 2009) (“Juror Collins’ statements did not show a biased unwillingess to consider potential sentences other than death. . . . Thus, the record does not demonstrate actual bias that would prevent juror Collins from serving as an impartial juror.“). Maryland‘s highest state court has expressed a view of this issue that comports with our Carratelli line of cases. Specifically, the Court of Appeals of Maryland has instructed: ” ‘[B]ias on the part of prospective jurors will never be presumed, and the challenging party bears the burden of presenting facts . . . which would give rise to a showing of actual prejudice.’ ” Hunt, 691 A.2d at 1267 (emphasis in original) (quoting Davis v. Maryland, 633 A.2d 867, 873 (Md. 1993)); accord Miller, 759 N.W.2d at 857-58.
Hence, in light of the court decisions discussed above, again, we refuse to accept Boyd‘s position that a criminal defendant is per se entitled to a new trial where he or she was convicted by a jury that included a convicted felon whose civil rights had not been restored. Rather, we hold—as have many other appellate courts throughout this nation—that a criminal defendant is not entitled to relief under such atypical circumstances absent a showing, based on legally sufficient evidence, of actual juror bias against the defendаnt. In other words, a person‘s disqualification from jury service by statute does not necessarily implicate a violation of a criminal defendant‘s constitutional rights if that person somehow served as one of said defendant‘s jurors. Thus, the only relevant issue presently
Under the “actual bias” standard announced by this Court in Carratelli:
A juror is competent if he or she “can lay aside any bias or prejudice and render his [or her] verdict solely upon the evidence presented and the instructions on the law given to him [or her] by the court.” Lusk v. State, 446 So. 2d 1038, 1041 (Fla. 1984). Therefore, actual bias means bias-in-fact that would prevent service as an impartial juror. See United States v. Wood, 299 U.S. 123, 133-34 (1936) . . . . Under the actual bias standard, the defendant must demonstrate that the juror in question was not impartial—i.e., that the juror was biased against the defendant, and the evidence of bias must be plain on the face of the record. See Carratelli v. State, 915 So. 2d 1256, 1260 (Fla. 4th DCA 2005) (citing Jenkins v. State, 824 So. 2d 977, 982 (Fla. 4th DCA 2002)); see also Patton v. Yount, 467 U.S. 1025, 1038-40 (1984).
Carratelli, 961 So. 2d at 324.
Here, Boyd has not alleged actual bias, nor has he pointed to any evidence in this record indicating that Juror Striggles or Juror Rebstock likely did not deliberate the question of his guilt fairly and impartially. In fact, the record is replete with evidence demonstrating facts that support the opposite conclusion. For instance, when asked during voir dire, Striggles informed the trial court that she was treated fairly by the juvenile system as a juvenile delinquent and that she, as previously noted, had gotten over whatever negative feelings she may have developed about that experience. Striggles also told the prosecutor during voir dire that she did not have a problem recommending a sentence of death where
B. Ineffective Assistance of Counsel Claims
Below, Boyd raised numerous ineffectiveness claims regarding defense counsel‘s performance during voir dire as well as the guilt and penalty phases. The circuit court summarily denied some claims, and denied the remainder following an evidentiary hearing. To prevail on an ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668 (1984), the defendant must demonstrate both deficiency and prejudice:
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. There is a strong presumption that trial counsel‘s performance was not deficient. 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. The defendant carries the burden to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Judicial scrutiny of counsel‘s performance must be highly deferential. Strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel‘s decision was reasonable under the norms of professional conduct. Furthermore, where this Court previously has rejected a substantive claim on the merits, counsel cannot be deemed ineffective for failing to make a meritless argument.
In demonstrating prejudice, the defendant must show a reasonable probability that but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Long v. State, 118 So. 3d 798, 805-06 (Fla. 2013) (internal citations and alterations omitted).
“[W]hen a defendant fails to make a showing as to one element [of the Strickland standard], it is not necessary to delve into whether he has made a showing as to the other element.” Thompson v. State, 796 So. 2d 511, 516 (Fla. 2001); McCoy v. State, 113 So. 3d 701, 708 (Fla. 2013). “Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court‘s factual findings that are
1. Failure to Conduct Adequate Voir Dire
Boyd first claims that defense counsel‘s failure during voir dire to question Juror Striggles more in depth about information she revealed concerning her juvenile delinquency record prejudicially denied him the opportunity to discover information material to excusing Striggles from jury service. However, Boyd has not proffered any additional questions that defense counsel should have asked Striggles during voir dire that would have elicited the now-complained-of information from her. See Green v. State, 975 So. 2d 1090, 1105 (Fla. 2008) (“Second, Parker did not render ineffective assistance in failing to ask Guiles more questions, because an allegation that there would have been a basis for a for cause challenge if counsel had followed up during voir dire with more specific questions is speculative.” (citing Johnson v. State, 903 So. 2d 888, 896 (Fla. 2005); Reaves v. State, 826 So. 2d 932, 939 (Fla. 2002)))). Nevertheless, as discussed above, the record in this case does not show that Striggles harbored any bias against Boyd, and thus, it is not reasonable to conclude that she rendered her duties in any
2. Failure to Properly Challenge Penalty Phase Outburst
The following cross-examination colloquy between the State and Boyd transpired during the penalty phase:
Q. Remember when I stood here and said, Mr. Boyd, I’m sorry I have to ask this of you, but did you have your own sperm in your mouth when they swabbed your mouth with the Q-tip and you said no.
A. But they -- you’re right.
Q. Right. I know I’m right.
A. But they --
Q. Now, you said you’d never do nothing like that.
MR. LASWELL: Objection, your Honor. Mr. Boyd has a right to finish his answer.
THE COURT: Mr. Loe, I’m going to give Mr. Boyd --
BY MR. LOE: Q. I said --
THE COURT: Excuse me, gentlemen. Excuse me. Mr. Boyd, finish your answer and then Mr. Loe may proceed with his next question.
THE WITNESS: I didn’t have my sperm in my mouth, but my sperm was in this young lady right here that they took from me in 1998. That’s where they got my sperm from, out of me. That young lady right there. That’s where my sperm came from.
[J.M.]: You raped me.
THE WITNESS: Yes, sir. Not out of my mouth.
BY MR. LOE:
Q. My question was --
A. Yes, sir.
Q. -- did you have your sperm in your mouth when they swabbed you in 1998, your answer was no?
A. No, sir.
Q. That was my question, wasn’t it? Your answer was no?
A. The answer is no.
(emphasis added).
The record reflects that the trial judge did nothing to restore order in the court from the gallery outburst or otherwise address the statement in the presence of the jury. The record also reflects that counsel for the defense did not object or move for a mistrial during the above exchange. Boyd asserts that such inaction in the midst of the allegedly prejudicial, unsworn statement by the female spectator, J.M., in open court constituted ineffective assistance of penalty phase counsel. We disagree, since there is competent, substantial evidence in this record supporting the circuit court’s finding that defense counsel made a strategic decision not to
This Court has repeatedly held that counsel does not render ineffective assistance by employing strategic decisions made during trial that, in hindsight, did not work to the defendant’s advantage. Reynolds v. State, 99 So. 3d 459, 483 (Fla. 2012); Maharaj v. State, 778 So. 2d 944, 959 (Fla. 2000) (citing Medina v. State, 573 So. 2d 293, 297 (Fla. 1990)). Stated differently, “[c]ounsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel’s strategic decisions. Moreover, strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct.” Occhicone v. State, 768 So. 2d 1037, 1048 (Fla. 2000) (internal citation omitted).
Here, the transcript for opening statements reflects that defense counsel informed the jury that they would hear testimony during trial that Broward County-area law enforcement had attempted to prosecute Boyd for two unrelated sexual battery incidents spanning over the decade prior to the present case. Counsel then suggested that because they had been embarrassed by unsuccessfully obtaining a conviction when they charged Boyd with a sex offense in an earlier case, the Sheriff’s Office and Police Department opportunistically colluded to blame McCloud for the death of Dacosta, the victim in this case. Defense counsel further
Additionally, we agree with the circuit court’s determination that Boyd’s own actions during the penalty phase invited the asserted error. It is well-settled under Florida law that “ ‘a party may not make or invite error at trial and then take advantage of the error on appeal.’ ” Universal Ins. Co. of N. Am. v. Warfel, 82 So. 3d 47, 65 (Fla. 2012) (quoting Sheffield v. Superior Ins. Co., 800 So. 2d 197, 202
The record here shows that Boyd goaded the woman present in the courtroom gallery when he identified her in front of the jury by partially standing while on the witness stand and twice pointing at the woman while insisting she was the source of his semen that law enforcement officers collected in the State’s attempt to convict him of a prior sexual battery charge. The record does not reflect that the woman was causing any disruption during the penalty phase proceeding, or that observers other than the State or Boyd knew of her presence.
Contrary to Boyd’s assertion, these circumstances are reminiscent of those found in Norton, given that in both cases some member of the defense’s party probed the allegedly prejudicial statements. In Boyd’s particular case, J.M. had not responded to or interjected herself into Boyd’s testimony until, in an attempt to bolster the defense’s theory that a DNA sample from his semen was intentionally
Finally, in further contrast to Boyd’s observation, the record does not indicate that the State engaged in “argumentative and antagonistic” cross-examination. Rather, the record shows nothing more than adversarial questiоning aimed at calling into question the credibility of a hostile witness as well as the defense’s overall theory that, against Boyd’s interest, law enforcement planted the incriminating forensic evidence at, and collected it from, the crime scene. See Blanton v. State, 880 So. 2d 798, 801 (Fla. 5th DCA 2004) (describing cross-examination as an “adversarial tool” (citing Crawford v. Washington, 541 U.S. 36 (2004))), approved in part, disapproved in part, 978 So. 2d 149 (Fla. 2008); see also Fla. Power Corp. v. Smith, 202 So. 2d 872, 881-82 (Fla. 2d DCA 1967) (“The very rule that sanctions the calling of a hostile witness permits cross-examination by the adverse party on the subject matter of his original examination as a hostile witness and also permits new evidence to contradict or impeach him.”). Accordingly, we deny relief as to this subclaim.
3. Failure to Question Jurors about Pretrial Publicity
Next, Boyd argues that the circuit court erred in summarily denying his claim that defense counsel rendered ineffective assistance by failing to question two prospective jurors—Barbara Berberich and then-prospective Juror Striggles—
The transcript in this case indicates that the State conducted its voir dire prior to the defense and questioned the prospective jurors about pretrial publicity and their knowledge of the case. Juror Striggles indicated that she had previously overheard her family conversing about an aspect of the case related to the Boyd Funeral Home, which was a business owned and operated by Boyd’s family. However, she immediately stated that she knew nothing about the business or this case. Juror Berberich likewise stated that, although she may have learned about Boyd’s case after seeing it on television or reading about it in a newspaper, she did not recall many details other than remembering Boyd’s name. Thus, because any follow-up questioning by defense counsel likely would have elicited minimum information not already brought out by the State’s voir dire, or otherwise would have elicited cumulative information, Boyd has failed to prove the deficiency prong under the Strickland standard. See id. (“The prosecutor also questioned the
Assuming, however, that counsel was remiss in not asking Jurors Striggles and Berberich additional questions about pretrial publicity and their knowledge of this case, no prejudice resulted from such inaction. When asked by the State, both prospective jurors explicitly assured that they would not permit whatever information concerning Boyd’s case to which they may have been exposed to affect them one way or the other during deliberations if chosen to serve on the jury. Therefore, we find that the record positively refutes a showing that either juror had actual bias against Boyd. See Carratelli, 961 So. 2d at 327 (“[T]he en banc [district] court . . . held that [j]uror Inman’s slight familiarity with the case did not rise to th[e] level of actual bias necessary for postconviction relief. We agree. The record plainly shows that juror Inman held no firm opinion except that he could be fair, listen to the evidence, and follow the law. Thus, Carratelli fails to demonstrate prejudice under Strickland.”) (internal citation omitted). Accordingly, we affirm the trial court’s summary denial of this claim and deny Boyd any relief thereto.
4. Forensic Evidence
a. Failure to Request a Frye Hearing
As Boyd concedes in his initial brief, the forensic methodologies and evidence presented at trial: trace and microscopic fiber analysis; forensic odontology and bite-mark analysis; and Short Tandem Repeat (STR) DNA technology, were neither new nor novel at the time of his 2002 trial. See, e.g., Long v. State, 610 So. 2d 1276, 1281 (Fla. 1992) (holding State’s hair, fiber, and tire-track evidence was admissible in trial for first-degree murder to establish
Boyd maintains that the 2009 National Academy of Sciences (NAS) report on forensic science, while it had not yet been published at the time of his 2002 trial, consisted of sources that were readily available at all relevant times and could have been utilized by defense counsel to challenge the methodology, procedures,
In Taylor v. State, 62 So. 3d 1101 (Fla. 2011), we determined that trial counsel’s decision not to request a Frye hearing to challenge the admissibility of DNA evidence was reasonable, given that the only authority proffered by the defendant that both challenged the use of DNA evidence and existed at the time of trial were academic articles and isolated, nonbinding decisions. Thus, we concluded that “[w]hile this evidence certainly could have been presented at trial, it was not essential for counsel to be determined to be effective.” Id. at 1111 (emphasis in original).
As to the fiber and bite-mark evidence at issue here, Boyd points our attention mostly to a number of isolated articles, news reports, journals, book chapters, and other nonbinding decisions from federal circuits. While these documents were readily available at the time of his trial and could have been relied upon throughout the trial proceedings, Boyd has not cited to any authority that obligated counsel to rely upon the substance of the above documents in order to persuade the trial court to grant a Frye hearing. See id. Regarding the DNA analysis, Boyd has not articulated how or what part of the 2009 NAS report would have called into question the admissibility of the DNA expert testimony in this
Tо the extent Boyd characterizes the 2009 NAS report as newly discovered evidence, Boyd cannot show that the portions of the report upon which he relies could “not have been known by the trial court, the party, or counsel at the time of trial,” and that he “or defense counsel could not have known of it by the use of diligence.” Schwab v. State, 969 So. 2d 318, 325 (Fla. 2007). As Boyd acknowledges, many of the statements in the Summary and Introduction sections of the NAS report to which Boyd cites appear in sources that were readily available at the time of his 2002 trial. Therefore, Boyd has failed to demonstrate that the NAS report constitutes newly discovered evidence. See Johnston v. State, 27 So. 3d 11, 21-23 (Fla. 2010) (finding 2009 NAS report was not newly discovered evidence, in part, because report cited existing publications, some of which were published before victim’s murder).
b. Failure to Utilize Forensic Experts
Boyd argues that defense counsel’s decision not to hire a forensic expert to assist him in challenging the DNA and bite-mark evidence was unreasonable and allowed the State to present its expert testimony virtually unchallenged. At the time of Boyd’s trial,
In this case, the record reflects that defense counsel filed a pretrial motion to grant defendant the concluding argument to the jury pursuant to then-applicable
In light of the above, Boyd failed to show from the record evidence that, in exercising a reasonable trial strategy, counsel did not perform the minimum requirements of professional conduct. See Branch v. State, 952 So. 2d 470, 478-79 (Fla. 2006) (agreeing with trial counsel that his ability to cross-examine the State’s witnesses coupled with the importance of the right to present first and last closing arguments were sufficient reasons to avoid the presentation of pathologist and
III. HABEAS PETITION CLAIMS
Claims of ineffective assistance of appellate counsel are appropriately presented in a petition for writ of habeas corpus. Dufour v. State, 905 So. 2d 42, 70 (Fla. 2005). Consistent with the Strickland standard, in determining whether to grant habeas relief for ineffective assistance of appellate counsel, this Court makes the following inquiries:
[F]irst, 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.
Schoenwetter v. State, 46 So. 3d 535, 563 (Fla. 2010).
The defendant bears the burden of “alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Id. (quoting Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000)). Ineffective assistance of appellate counsel claims “may not be used to camouflage issues that should have been presented on direct appeal or in a postconviction motion.” Id.
A. Failure to Raise Issue of Admissibility of Incriminating Statement
Boyd argues that the trial court erred, in violation of his constitutional right against self-incrimination, when it denied his motion to suppress the statement he made to police during custodial interrogation, to wit: “What took you so long to catch me?” It is further asserted that because, according to Boyd, trial counsel preserved the error for appellate review, appellate counsel rendered ineffective assistance by failing to raise the issue on direct appeal.
Assuming trial counsel properly preserved the alleged error and that appellate counsel’s failure to raise it satisfied the deficiency prong, such lack in performance does not undermine our confidence in the correctness of the result of the direct appeal proceedings. As indicated in our direct appeal decision, we found competent, substantial evidence to support Boyd’s conviction of sexual battery:
The State presented substantial evidenсe that Boyd sexually battered Dacosta, including evidence that Boyd and Dacosta did not know each other before she encountered Boyd while looking for a ride back to her vehicle after obtaining gas at the Texaco station; that Boyd’s semen was on Dacosta’s inner thighs; that Dacosta’s blood was in Boyd’s apartment; and that Boyd’s DNA was in material found
under Dacosta’s fingernails. The State also presented testimony establishing the chain of custody of the evidence collected, providing evidence against Boyd’s theory that Detective Bukata planted evidence so that it would match Boyd’s and Dacosta’s DNA. Bruising on Dacosta’s inner thighs and vaginal area was consistent with either consensual or nonconsensual intercourse. Dacosta was last seen alive with Boyd.
This same evidence, in addition to evidence “that Dacosta was stabbed with a Torx screwdriver thirty-six times in the chest and four times in the head” and “had twelve wounds on her right hand that were consistent with defensive wounds,” supported our determination that there was also competent, substantial evidence to uphold the jury’s guilty verdicts for armed kidnapping and premeditated murder. Id. at 182-84. Finally, we determined that, based on Boyd’s convictions of sexual battery and armed kidnapping, the record on appeal further supported the first-degree murder conviction on the basis of felony murder. Id. at 182. Therefore, even had Boyd’s statement: “What took you so long to catch me?” not be adduced at trial, his convictions and sentence of death would have been upheld, given the overwhelming amount of remaining evidence establishing Boyd’s guilt. See Williamson v. State, 123 So. 3d 1060, 1056-66 (Fla. 2013) (“[T]o establish prejudice under Strickland, . . . a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury, and a verdict or conclusion only weakly supported by the record is more likely to have
B. Failure to Raise Fundamental Error as to Improper Comment
Boyd raises his previous ineffectiveness claim for failure to properly challenge a penalty phasе spectator’s outburst: “You raped me,” see Section II.B.2., supra, but under the guise of ineffective assistance of appellate counsel for failure to raise the claim on direct appeal. Because, as noted, defense counsel did not preserve the issue for appeal during the penalty phase of trial, appellate counsel cannot be ineffective for failing to raise the issue on direct appeal unless the claim involves fundamental error. See Archer v. State, 934 So. 2d 1187, 1205 (Fla. 2006). An error is fundamental if it “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Rodriguez v. State, 919 So. 2d 1252, 1282 (Fla. 2005). Concerning improper comments made in the penalty phase, to be fundamental error the comments “must be so prejudicial as to taint the jury’s recommended sentence.” Fennie v. State, 855 So. 2d 597, 609 (Fla. 2003) (citing Thomas v. State, 748 So. 2d 970, 985 n.10 (Fla. 1999)).
The cases to which Boyd cites for support are factually distinguishable to the present circumstances and, thus, are uninstructive. In Arbelaez v. State, 626 So. 2d 169 (Fla. 1993), for instance, the murder victim’s mother, upon being called by the State to testify, was crying during the administration of the oath. Id. at 176. The prosecutor requested a break for the mother to compose her emotions, after which time she then called the defendant a “murderer” and a “son of a bitch” in Spanish while the jury was still present. Id. Boyd also likened the facts of this case to those in Evans v. State, 995 So. 2d 933 (Fla. 2008), wherе the defendant raised a claim of ineffective assistance of counsel for failure to object to a juror’s participation in the trial. Id. at 945. Particularly, the defendant asserted that he was prejudiced when the juror interjected herself into the trial as an unsworn witness to answer a question concerning a traffic light that was germane to the defense’s theory of the case. Id. Neither of these decisions contemplates a situation in which the defendant incited the complained-of outburst. Id.
To the contrary, Boyd goaded the spectator by partially standing while on the witness stand and twice pointing at her while insisting she was the source of
IV. CONCLUSION
Based on the foregoing analysis, we affirm the circuit court’s denial of postconviction relief. We also deny Boyd’s petition for writ of habeas corpus.
It is so ordered.
CANADY and POLSTON, JJ., concur in result.
LEWIS, J., concurs in result only with an opinion.
QUINCE, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
LEWIS, J., concurring in result only.
Under the Florida Statutes, a person who has been convicted of a felony is disqualified from service on a jury unless and until his or her civil rights have been restored. See
I am surprised that neither Florida courts, nor many courts in other jurisdictions that have addressed this issue, have reached this conclusion. Rather, a significant number have determined, as the majority holds today, that actual bias is the proper inquiry where a convicted felon serves on a jury. See, e.g., Companioni v. City of Tampa, 958 So. 2d 404, 417 (Fla. 2d DCA 2007) (holding that in civil
In my opinion, whether actual bias existed should not be the appropriate consideration where a disqualified juror served in violation of statutory law. Rather, I would conclude that if a jury is not properly comprised pursuant to
Other states, such as Texas and Virginia, have provided statutory remedies where a disqualified individual served on a jury. See
Despite my deep disagreement with the use of the actual bias standard in this context, statutory change is required to address the current injustice in Florida. Until the Legislature takes action, a party must meet a nearly insurmountable burden to obtain relief where a convicted felon served on his or her jury in clear violation of the law. Therefore, I аm compelled to concur in result only.
QUINCE, J., dissenting.
I believe, under the circumstances of the case, the defendant is entitled to a new trial because an unqualified person served on this capital jury. It is undisputed that Juror Striggles was a convicted felon whose civil rights had not been restored at the time she served on the jury that convicted Boyd.
Two Cases:
An Appeal from the Circuit Court in and for Broward County, Andrew L. Siegel, Judge - Case No. 061999CF005809A88810 And an Original Proceeding – Habeas Corpus
Neal Andre Dupree, Capital Collateral Regional Counsel, Southern Region, Suzanne Myers Keffer, Chief Assistant, Capital Collateral Regional Counsel, Southern Region, and Scott Gavin, Staff Attorney, Capital Collateral Regional Counsel, Southern Region, Fort Lauderdale, Florida,
for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, Florida,
for Appellee/Respondent