CHARLES L. ANDERSON, Appellant, vs. STATE OF FLORIDA, Appellee. CHARLES L. ANDERSON, Petitioner, vs. JULIE L. JONES, etc., Respondent.
No. SC12-1252, No. SC14-881
Supreme Court of Florida
[March 9, 2017]
Charles Anderson appeals an order denying his motion to vacate his conviction of first-degree murder and sentence of death filed under
I. BACKGROUND
In 1999, Anderson was convicted and sentenced to death for the first-degree murder of his stepdaughter, Keinya Smith. The facts of the murder were set forth in this Court‘s opinion on direct appeal as follows:
In 1980, Charles Anderson married Edwina. At the time of the marriage, Edwina had a five-year-old daughter (Keinya) from a previous relationship. In 1992, the Miami police became aware that Anderson was sexually abusing Keinya. He subsequently pled to eleven counts of attempted capital sexual battery and was sentenced to probation. One of the conditions of the probation was that he have no contact with Keinya. If Anderson violated probation, he faced the possibility of life in prison.
Despite the conditions of his probation, witnesses testified that Anderson continued to have contact with Edwina and Keinya. Apparently he spent several nights a week at Edwina‘s house. On Wednesday, January 12, 1994, Keinya was supposed to leave her job at Publix at 6 p.m., yet she did not return home until much later. A Publix employee by the name of Patrick Allen drove Keinya home. After dropping Keinya off, Allen realized that he was being followed by an individual in another car. Allen ultimately eluded the individual. When Allen was later shown photographs of Anderson‘s car, he was able to verify that the car that chased him belonged to Anderson.
Two nights later, on Friday, January 14, Allen brought Keinya home again. Anderson was sitting in his car waiting for Keinya to return, and as soon as Keinya got out of Allen‘s car, Anderson‘s car darted toward Allen. Another chase ensued, and this time Allen fired several gunshots at Anderson during the chase. When Anderson
returned home, he and Keinya got into a heated argument. A neighbor testified that she overheard Anderson say to Keinya, “You told him. Why was he shooting at me?” and that Keinya responded, “I didn‘t tell him nothing.” A cousin who was present during the argument testified that Anderson hit Keinya. Keinya then grabbed a knife and said, “Let me call the police.” She proceeded to dial 911, but when the operator picked up, Keinya hung up the phone. The 911 operator called back, but was unable to get an answer and therefore a police car was sent to the house. When the police arrived, both Anderson and Edwina went outside and talked to the police. Keinya locked herself in her room. Anderson and Edwina convinced the police that everything was okay and the police left. Keinya‘s cousin testified that after the police left, Anderson walked to the room where Keinya was hiding and said that he was going to wait in Publix for twenty-four hours—that if he could not get Patrick, then he would come after her. Although Keinya was supposed to work on Saturday, she did not go to work because she was scared. Keinya did go to work on Sunday, January 16, 1994. Her time card revealed that she left work at 6:01 p.m. Allen testified that he saw Anderson‘s car waiting outside Publix.
On that same day, John Gowdy and Amelia Stringer were driving north on U.S. 27. Gowdy testified that he saw someone on the side of the road at approximately 7 p.m. Although it was dark at the time, Gowdy was able to see the person in the grass median between the northbound and southbound lanes. Gowdy observed the car in front of him make a U-turn and he did the same thing. Gowdy then witnessed the car in front of him swerve into the median and then back into the lane, apparently running over the person. Gowdy immediately reported the incident to the police. Gowdy described the suspect‘s car as a blue/gray four-door. Anderson‘s car is dark blue with a gray top and has two doors. Stringer, who was in the car with Gowdy, saw the person in the median lie down in the grass and then sit up. She also witnessed the car in front of them run over the person in the median.
When the police arrived at the scene, they discovered blood on the pavement, some clothing items, and a name tag which read “Keinya.” Items were found in the northbound lane and in the median near the southbound lane. Four tire impressions were taken from the scene. Keinya‘s dead body was found on Monday, January 17, by a fishing camp in the Everglades.
About a week after the murder, Anderson voluntarily agreed to be interviewed by the police. At one point during the interview, Anderson responded that he did pick up Keinya from work on Sunday night, but that he did not kill her. Within seconds of making this statement, Anderson recanted, claiming that he was being facetious. Anderson consented to a search of his car, although the police already had a warrant. The police took impressions of the car‘s tires. An expert testified that of the four impressions taken from the scene, one could not have been made by Anderson‘s tires, one was consistent with Anderson‘s tires, and the other two impressions were of no value. There was damage to Anderson‘s radiator, the splash guard was cracked, and an area under the car appeared to have been wiped. Another expert testified that grease marks found on Keinya‘s jacket could have been made by two coils from underneath Anderson‘s car. That expert also stated that two other coils from Anderson‘s car could not have been made the grease marks. Several spots in and under Anderson‘s car were suspected to have blood. There was a positive presumptive result from the car‘s splash pan, but the police could not get any DNA results from this spot, meaning that it could have been human blood or animal blood. However, a spot of blood on Anderson‘s car seat matched Keinya‘s DNA. Finally, a number of fibers were found under Anderson‘s car. An expert testified that one of the fibers was consistent with fibers from Keinya‘s pants. Twelve other fibers taken from the car did not match Keinya‘s clothing.
During the trial, the parties agreed to the following stipulation, which was read to the jury:
It has been stipulated between parties that Keinya Smith is dead. That she died on January 16, 1994. And that she died as a result of blunt force trauma inflicted by a motor vehicle. It is further stipulated between parties that the items of evidence found on U.S. 27 by Lieutenant Vaughn and Detective Foley, including jewelry, blood stains, name tags and hair and scalp, originated from Keinya Smith.
The State also presented the testimony of Anderson‘s probation officer, Lisa White, who stated that Anderson was on probation for eleven counts of attempted capital sexual battery on Keinya. White further stated that shortly after Keinya‘s body was found, Anderson
contacted her and asked whether he could have his family back now that Keinya was dead. Anderson did not put on any evidence during the guilt phase. At the conclusion of the guilt phase, the jury convicted Anderson of first-degree murder.
During the penalty phase, the State presented the testimony of the medical examiner, who testified that in addition to various other injuries, Keinya‘s neck was fractured when she was run over by the car, and the fractured neck led to rapid unconsciousness and death. The medical examiner stated that survival following the incident was seconds to minutes at the most. State witness Mitzy Clark testified that on the night of the murder, she was driving on U.S. 27 when she saw a person lunge at her car, trying to get Clark to stop. Clark stated that she did not stop because she was scared. The State also presented the testimony of Edwina, who described the circumstances of Keinya‘s sexual abuse. Edwina made it clear that Anderson not only attempted, but actually completed the crime of sexual battery:
Q: Did [Keinya] tell you that [Anderson] inserted his penis inside her vagina on several occasions?
A: Yes.
Edwina also testified that on the Friday before the murder, Anderson said, “I‘m going to prison, but somebody is going to be dead, I bet you that.” Finally, Edwina stated that Anderson called her on the day of the murder, asked if Keinya was working that day, and asked what time Keinya got off work. Officer Estopinan, the officer who investigated the previous sexual batteries, also testified about the circumstances of Keinya‘s sexual abuse.
The defense called a number of penalty-phase witnesses who described Anderson‘s childhood and subsequent addiction to drugs. Anderson also testified on his own behalf. During the course of his testimony, Anderson admitted that he sexually abused Keinya.
The jury ultimately recommended death by an eight-four vote. The trial court found the following five aggravators: (1) Anderson had a previous conviction of a violent felony (the attempted sexual batteries), (2) the murder was committed while engaged in the commission of a felony (kidnapping), (3) the murder was committed to avoid arrest, (4) the murder was heinous, atrocious, or cruel, and (5) the murder was committed in a cold, calculated and premeditated
manner without any pretense of legal justification. The trial court concluded that Anderson failed to establish the statutory mental mitigators. The court found the following nonstatutory mitigators: (1) Anderson suffers from sexual dementia (minimal weight), (2) Anderson confessed to his sexual relationship with Keinya during drug addiction counseling (medium weight), (3) Anderson suffered from drug addiction (minimal weight), (4) Anderson comes from a good family (minimal weight), (5) Anderson was a good child (minimal weight), (6) Anderson helped Edwina take care of his three natural children (minimal weight), (7) Anderson loves his children (minimal weight), (8) Anderson sends gifts to his kids while in custody (minimal weight), (9) Anderson is a very caring person (minimal weight), (10) Anderson served in the Coast Guard for five years (minimal weight), (11) society would be protected by Anderson serving a life sentence (minimal weight), (12) Anderson earned money playing the market while in custody and therefore can still be a productive member of society (minimal weight), and (13) Anderson has a gift for poetry and can help men who end up in prison (minimal weight). The trial court sentenced Anderson to death.
Anderson v. State, 841 So. 2d 390, 394-97 (Fla. 2003) (alterations in original). Anderson raised thirteen claims on direct appeal.1 Id. at 397 n.1. We affirmed the conviction and sentence of death. Id. at 409.
II. MOTION FOR POSTCONVICTION RELIEF
Anderson initially filed a motion for postconviction relief under
In his postconviction appeal, Anderson asserts that the postconviction court erred in summarily denying the following claims: (1) counsel was ineffective at the guilt phase for failing to utilize forensic experts; (2) the destruction of exculpatory
As to the summary denial of claims raised in a
“The decision of whether to grant an evidentiary hearing on a
rule 3.851 motion is ultimately based on the written materials before the court, and the ruling of the postconviction trial court on that issue is tantamount to a pure question of law subject to de novo review.” Therefore, when reviewing the summary denial of claims raised in an initial postconviction motion below, this Court accepts the movant‘s factual allegations as true to the extent that they are not refuted by the record. A court may summarily deny a postconviction claim when the claim is legally insufficient, procedurally barred, or refuted by the record. “To uphold the trial court‘s summary denial of claims raised in an initial postconviction motion, the record must conclusively demonstrate that the defendant is not entitled to relief.”
Troy v. State, 57 So. 3d 828, 834 (Fla. 2011) (citations omitted).
A. Ineffective Assistance of Counsel
In his first issue on appeal, Anderson asserts that the postconviction court erred in summarily denying his claim that guilt-phase counsel was ineffective for failing to utilize experts to challenge the physical evidence admitted against him at trial. Specifically, Anderson claims that trial counsel should have consulted experts regarding the tire impression evidence, the blood in his car, the grease mark evidence, and the fiber evidence.
“To be entitled to an evidentiary hearing on a claim of ineffective assistance, the defendant must allege specific facts that are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant.” Rhodes v. State, 986 So. 2d 501, 513-14 (Fla. 2008) (quoting Jones v. State, 845 So. 2d 55, 65 (Fla. 2003)). Mere conclusory allegations are insufficient to warrant an evidentiary hearing. The defendant bears the burden of “establishing a ‘prima facie case based on a legally valid claim.‘” Barnes v. State, 124 So. 3d 904, 911 (Fla. 2013) (quoting Valentine v. State, 98 So. 3d 44, 54 (Fla. 2012)). The burden is also “on the defendant, not the State, to show a ‘reasonable probability’ that the result would have been different” but for counsel‘s error.
1. Tire Impression Evidence
At trial, the State presented the testimony of Fred Boyd, a latent print, footwear, and tire-tread analyst. Boyd testified that in the course of his employment with the Broward County Crime Lab, he was asked to compare photos and casts of the tire impressions left at the scene where Keinya Smith‘s body was found to standards made from the tires on Anderson‘s car. Boyd concluded that two of the tire impressions left near Keinya‘s body were of no value, the third “could have been made by” Anderson‘s right front tire, and the fourth impression “could not have been made by” any of the tires on Anderson‘s car.
The State laid the foundation for Boyd to be deemed an expert in tire-tread examination by asking Boyd about his training and experience. Boyd testified that he spent the first twenty years of his career as a military policeman in the Army Criminal Investigation Division Crime Lab and retired as chief of the latent print unit in 1988. He was then employed by the Broward County Crime Lab, where he worked in fingerprints, footwear, and tire-tread examination for the next eight and a half years. At the time of Anderson‘s trial in 1999, Boyd was employed with the
Anderson now claims that counsel was deficient for failing to object to Boyd being deemed an expert because he was not “certified” in tire-tread examination.3 This claim is without merit. The
Anderson also claims that trial counsel was deficient for failing to utilize a defense expert to challenge Boyd‘s testimony. This claim is also without merit because the alleged deficiency is rebutted by the record. During his cross-examination of Boyd, trial counsel brought out the weaknesses in Boyd‘s testimony and rigorously challenged its significance by pointing out that Boyd could only say that the right front tire on Anderson‘s car was “pretty consistent” or “relatively consistent, but not a hundred percent consistent” with the type of tire that left one of the impressions near Keinya‘s body; the impression was not specific to the tire on Anderson‘s car but only to the type of tire; Boyd did not know how many of that particular type of tire were manufactured, where in the country they were primarily distributed, or which stores carried the tire; while Anderson‘s right front tire “could have, possibly” made that impression, there was “no question at all” that another one of the impressions was not made by any of the tires on Anderson‘s car; Boyd‘s analysis only looked at “the general class design” of the tire; Boyd never went and looked at the actual tires on Anderson‘s car; and there was no “positive I.D. on the tire.”
Anderson did not allege in his motion or on appeal what information could have been obtained from other experts and used to impeach or discredit Boyd‘s
2. Blood Evidence
Anderson argues that counsel was ineffective for failing to utilize defense experts to challenge the State‘s evidence regarding the spot of Keinya‘s blood found on Anderson‘s car seat as it related to the State‘s theory that Keinya‘s body was transported in the car from the location where she was run over to where her
Anderson‘s claim that trial counsel should have utilized an expert to testify that there was no way to determine when Keinya‘s blood was left in his car was not raised in his motion before the trial court and is therefore unpreserved and not properly before this Court for review. See Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982) (“[F]or an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.“). Moreover, even if Anderson raised this claim below, an evidentiary hearing would have been unwarranted because the record demonstrates that counsel elicited testimony during cross-examination of the State‘s expert that there was no way to date the blood found in Anderson‘s car. See Reed v. State, 875 So. 2d 415, 427 (Fla. 2004) (affirming denial of claim that counsel was ineffective for failing to retain a defense expert where facts necessary for defendant‘s defense were established through cross-examination of State‘s experts).
Anderson also claims that an expert could have testified that if Anderson ran Keinya over and then transported her “bloody body” fifteen miles in his car to the location where it was found, there would have been much more than one drop of
Because Anderson failed to identify any specific errors or omissions with respect to the blood evidence that show that counsel‘s performance deviated from the norm such that it fell outside the range of professionally acceptable performance, he was not entitled to an evidentiary hearing on this claim.
3. Grease Pattern Impression Evidence
Anderson also claims that trial counsel performed deficiently in failing to consult experts and challenge the admissibility of the State‘s expert testimony regarding the grease mark or grease pattern impression evidence. At trial, the State called James Gerhart, an FBI pattern impression expert, to testify regarding his
According to Anderson, grease pattern analysis is a “suspect field” of forensic science and the validity of such analysis is “highly questionable due to varying methods of testing and examination.” Anderson claims that trial counsel should have consulted with other experts in this “suspect field” and had those experts available to testify about the shortcomings of grease pattern impression evidence and to explain why Gerhart‘s testimony was inadmissible under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
At the time of Anderson‘s trial, Florida used the Frye standard to determine the admissibility of expert opinion testimony that relied upon a new or novel scientific principle, theory, or methodology.4 Under Frye, the principle, theory, or
”Strickland does not enact Newton‘s third law for the presentation of evidence, requiring for every prosecution expert an equal and opposite expert from the defense. In many instances cross-examination will be sufficient to expose defects in an expert‘s presentation.” Harrington v. Richter, 562 U.S. 86, 111 (2011). Here, the record demonstrates that the cross-examination conducted by Anderson‘s trial counsel was sufficient to expose the defects in Gerhart‘s presentation, and “[t]here is no reasonable probability that re-presenting virtually the same evidence through other witnesses would have altered the outcome in any manner.” Atwater v. State, 788 So. 2d 223, 234 (Fla. 2001).
4. Fiber Evidence
Trace evidence expert Bruce Ayala testified at Anderson‘s trial that one of the thirteen fibers found under Anderson‘s car “could have originated” from the pants Keinya was wearing when she was killed. He concluded that the twelve other fibers taken from the car did not match any of Keinya‘s clothing. As in the previous claim, Anderson alleges that counsel was ineffective for failing to consult with experts and secure a Frye hearing with regard to the fiber evidence.
We conclude that trial counsel did not render deficient performance because there was no legal basis to support a request for a Frye hearing. Fiber evidence—which also falls under the broader category of trace evidence6—was not a new or novel science at the time of Anderson‘s trial; it has been admitted in Florida courts since at least 1958. See, e.g., Trimble v. State, 102 So. 2d 738, 739 (Fla. 3d DCA 1958) (noting the admission of expert testimony that fibers found underneath defendant‘s car were similar to those taken from victim‘s blouse); see also Bundy v. State, 471 So. 2d 9, 20 (Fla. 1985) (noting that no Frye hearing was held with
Anderson also asserts that the testing of the fiber evidence was done using “poor analysis and improper methodology” and that counsel performed deficiently in failing to present expert testimony that “could have explained what would have constituted proper methodology.” This allegation is conclusory and insufficient to warrant an evidentiary hearing. Anderson also failed to establish that there is a reasonable probability that the outcome of the trial would have been different had counsel utilized an expert to challenge the conclusion of the State‘s expert that one of the thirteen fibers found under Anderson‘s car “could have originated” from Keinya‘s pants.
5. Cumulative Prejudice
Even if we were to conclude that trial counsel rendered deficient performance in failing to consult with experts and present expert testimony in
order to more rigorously challenge the tire, blood, grease, and fiber evidence, Anderson would still not be entitled to relief on this claim because he cannot establish prejudice.The tire, blood, grease, and fiber evidence were equivocal: the tire and grease impressions may or may not have been left by Anderson‘s car; the drop of blood on the car seat may or may not have been left at the time of the murder; and a single fiber out of the thirteen that were found on the bottom of Anderson‘s car may or may not have come from Keinya‘s pants. The other evidence presented at trial established that two eyewitnesses observed a car that they described as similar to Anderson‘s car running over a person without deviating from its path on the night of the murder in the area where Keinya‘s hair, scalp, blood, and personal items were found; there was damage to the radiator and splash guard on Anderson‘s car; an area under the car had been wiped; Anderson‘s car was seen waiting outside the Publix where Keinya worked just before the murder; Anderson admitted picking Keinya up from work on the night of her murder; Anderson admitted that he had sole control of his car the night Keinya was murdered; within the four days leading up to the murder, Anderson twice used his car to chase after and attack Keinya‘s co-worker, Patrick, after he drove Keinya home from work; approximately 48 hours before the murder, Anderson hit Keinya and threatened her, and she was so scared that she armed herself with a knife, dialed 911, locked
In light of the other evidence presented, there is no reasonable probability that had trial counsel more rigorously challenged the equivocal tire, blood, grease, and fiber evidence, Anderson would have been acquitted of first-degree murder. Even if we were to assume that counsel was deficient, our confidence in the outcome would not be undermined.
B. Failure to Preserve Physical Evidence
Anderson next alleges that the State “willfully or with egregious negligence” caused the deterioration of several key pieces of evidence after his trial. Anderson claims that his car, the tire casts, tire “printouts,” and Keinya‘s clothing were “inappropriately stored” after trial in a manner that destroyed or severely diminished their evidentiary value, which rendered postconviction experts unable to “retest” the evidence and resulted in a violation of Brady v. Maryland, 373 U.S. 83 (1963), California v. Trombetta, 467 U.S. 479 (1984), Arizona v. Youngblood, 488 U.S. 51 (1988), and Anderson‘s due process rights. Anderson further alleges
In Brady, the United States Supreme Court held that the Due Process Clause of the
Anderson has not alleged that any evidence was suppressed by the State, and failure to preserve evidence for retesting during postconviction proceedings does not result in a Brady violation. Thus, Anderson failed to sufficiently plead entitlement to relief under Brady.
In Trombetta, the United States Supreme Court held that the State‘s constitutional duty to preserve evidence is limited to evidence that “both possess[es] an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” 467 U.S. at 489. In Youngblood, however, the Supreme Court held that the Due Process Clause requires a different result when the State fails to preserve evidence that does not
Anderson has not demonstrated that the allegedly deteriorated evidence was of an exculpatory nature that was apparent to the State before it was allowed to deteriorate. As to the car, Anderson makes only the following conclusory and fallacious argument: “Law enforcement and the State were well aware of the exculpatory value of the car, because they examined and tested it on several occasions. Testing of a piece of evidence is a clear indication of its exculpatory value.” We reject Anderson‘s assertion that “testing” evidence is a “clear indication of its exculpatory value.” Anderson also failed to provide any explanation of how the tire casts, printouts, or clothing were of an exculpatory
Even assuming that Anderson could establish that the evidence was “potentially useful,” his allegation that the State acted in bad faith in inappropriately storing the evidence resulting in its deterioration is wholly conclusory. He asserts that “[s]uch a flagrant disregard for the maintenance and location of an alleged murder weapon and other highly exculpatory evidence in a capital case should be seen as a defacto [sic] example of bad faith.” But Anderson fails to explain how the items were inappropriately stored, and the only basis he offers to support his claim that the items were inappropriately stored is the fact that they have deteriorated. This argument is circular and insufficient to establish that the State or law enforcement acted in bad faith.
Even assuming that the items were inappropriately stored, “under Youngblood and this Court‘s precedent, the determination of bad faith does not turn on whether law enforcement officers followed established procedures. Instead, bad faith exists only when law enforcement officers intentionally destroy evidence they believe would exonerate a defendant.” Guzman, 868 So. 2d at 509 (citing Youngblood, 488 U.S. at 57). However, Anderson describes the potential usefulness of the items in terms of the results of “independent forensic testing” that he claims possibly would have been done during the postconviction stage.
Because Anderson failed to sufficiently plead entitlement to relief under Brady, Trombetta, or Youngblood, he was not entitled to an evidentiary hearing, and the trial court did not err in summarily denying these claims.
C. National Academy of Sciences Report
Anderson asserts that a report issued in 2009 by the National Academy of Sciences regarding the field of forensic science, titled “Strengthening Forensic Science in the United States: A Path Forward” (“2009 NAS report“), constitutes newly discovered evidence demonstrating that the scientific evidence used to convict him is unreliable. However, we have repeatedly held that the 2009 NAS report does not constitute newly discovered evidence. E.g., Dennis v. State, 109So. 3d 680, 700 (Fla. 2012); Johnston v. State, 27 So. 3d 11, 21 (Fla. 2010). Accordingly, summary denial of this claim was proper.
D. Ring and Hurst
During the pendency of Anderson‘s appeal from the denial of his motion for postconviction relief, the United States Supreme Court issued its decision in Hurst v. Florida, 136 S. Ct. 616 (2016), in which it held that Florida‘s former capital sentencing scheme violated the
before the trial judge may consider imposing a sentence of death, the jury in a capital case must unanimously and expressly find all the aggravating factors that were proven beyond a reasonable doubt, unanimously find that the aggravating factors are sufficient to impose death, unanimously find that the aggravating factors outweigh the mitigating circumstances, and unanimously recommend a sentence of death.
Hurst v. State (Hurst), 202 So. 3d 40, 57 (Fla. 2016).
We have held that Hurst v. Florida and Hurst apply retroactively to defendants in Anderson‘s position, who were sentenced under Florida‘s former, unconstitutional capital sentencing scheme after the United States Supreme Court
III. PETITION FOR WRIT OF HABEAS CORPUS
In addition to his postconviction appeal, Anderson filed a petition for a writ of habeas corpus in this Court, in which he asserts that: (1) appellate counsel was ineffective for failing to raise a claim under Giglio v. United States, 405 U.S. 150 (1972); (2) appellate counsel was ineffective for failing to challenge the trial court‘s decision to allow the State to proceed on a theory of felony murder in addition to premeditated murder; (3) his death sentence is unconstitutionally arbitrary as a result of the Florida Legislature‘s adoption of the Daubert standard in 2013; and (4) his death sentence is unconstitutionally under Ring. Because we have already determined that Anderson is entitled to a new penalty phase, we decline to address Anderson‘s Giglio claim, which is directed at the penalty phase. Nor is
A. Felony-Murder Theory
In his direct appeal, Anderson raised a challenge to the trial court‘s decision to permit the State to proceed on a theory of felony murder in addition to a theory of premeditated murder. In denying relief, we explained:
In his seventh claim, Anderson argues that the trial court erred in permitting the State to proceed on the theory of felony murder when the indictment only charged first-degree murder. The State brought up felony murder for the first time during the charge conference and Anderson argues that he was prejudiced by a lack of notice. Anderson acknowledges that this claim was decided adversely to him in Knight v. State, 338 So. 2d 201, 204 (Fla. 1976). See also Kearse v. State, 662 So. 2d 677, 682 (Fla. 1995). He offers no valid reason for receding from Knight. Hence there is no merit to this claim.
Anderson, 841 So. 2d at 404. Although the claim was raised and rejected previously, Anderson now contends that appellate counsel was ineffective in raising this claim because the circumstances of his case are different from the circumstances in Knight and appellate counsel “fail[ed] to rely upon the proper due process case law.” This claim is insufficiently pleaded because Anderson has not identified the “proper due process case law” on which he claims appellate counsel was ineffective for failing to rely, and we therefore deny relief.
Anderson claims that his death sentence is unconstitutionally arbitrary in violation of Furman v. Georgia, 408 U.S. 238 (1972), and the
This claim is without merit. What Anderson seems to argue is that because the scientific evidence admitted at his trial was admissible under Frye but would not have been admissible had the Daubert standard been the relevant standard in Florida at the time of his trial, his conviction and death sentence are arbitrary. This argument fails because the scientific evidence admitted at Anderson‘s trial was not subjected to a Frye analysis because Anderson—as he argues in his postconviction appeal as a claim of ineffective assistance of counsel—did not seek a hearing and determination of admissibility under Frye. Thus, because he failed to seek an
Moreover, Anderson ignores the fact that we have previously recognized that the Daubert standard is more lenient in terms of admitting novel scientific evidence than Frye. See Brim v. State, 695 So. 2d 268, 271-72 (Fla. 1997) (footnote omitted) (“Despite the federal adoption of a more lenient standard in [Daubert], we have maintained the higher standard of reliability as dictated by Frye.“); see also Hernandez v. State, 180 So. 3d 978, 1008 (Fla. 2015) (“[T]he Supreme Court in Daubert actually criticized Frye and its ‘exclusive test’ imposing a ‘rigid general acceptance requirement’ as being at odds with the liberal thrust of the Federal Rules and their ‘general approach of relaxing the traditional barriers to opinion testimony.’ ” (quoting Daubert, 509 U.S. at 588-89) (some citations omitted)), cert. denied, 136 S. Ct. 2487 (2016). Thus, any suggestion that a determination of the admissibility of the State‘s scientific evidence would have been more favorable to Anderson under Daubert than Frye is illogical.
IV. CONCLUSION
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
CANADY, J., concurs in part and dissents in part with an opinion, in which POLSTON, J., concurs.
LAWSON, J., did not participate.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.
CANADY, J., concurring in part and dissenting in part.
I agree with the decision to affirm the denial of relief regarding Anderson‘s conviction, and I agree that Anderson‘s habeas petition should be denied. But I dissent from the decision to require a new penalty phase. As I have previously explained, Hurst v. Florida, 136 S. Ct. 616 (2016), should not be given retroactive effect. See Mosley v. State, 41 Fla. L. Weekly S629, S641-44, 2016 WL 7406506, at *27-32 (Fla. Dec. 22, 2016) (Canady, J., concurring in part and dissenting in part).
POLSTON, J., concurs.
An Appeal from the Circuit Court in and for Broward County,
Michael Allen Usan, Judge - Case No. 061994CF015182A8881
And an Original Proceeding – Habeas Corpus
Martin J. McClain, Special Assistant Capital Collateral Regional Counsel, 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
Notes
1. Anderson‘s claims on direct appeal were:
(1) the evidence is insufficient for first-degree murder; (2) the trial court erred in admitting collateral bad act evidence; (3) the trial court erred in allowing a witness to testify concerning other traffic homicides; (4) the trial court erred in allowing nonresponsive opinion testimony as to the intent of the perpetrator; (5) the trial court erred in admitting inflammatory photographs during the guilt phase; (6) the trial court erred in denying Anderson‘s motion for mistrial during closing argument; (7) the trial court erred in allowing the State to proceed on a theory of felony murder; (8) the State‘s penalty phase argument was fundamental error; (9) the trial court erred in admitting inflammatory photographs during the penalty phase; (10) the evidence