William Kenneth Taylor appeals the denial of his postconviction motion to vacate his convictions and sentences filed under Florida Rule of Criminal Procedure 3.851. Taylor’s convictions included a conviction of first-degree murder for which the trial court imposed a sentence of death. Taylor also petitions this Court for a writ of habe-as corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the rea
Trial Court Proceedings
A jury convicted Taylor of first-degree murder and robbery with a firearm in connection with the death of Sandra Kushmer, attempted first-degree murder and robbery with a deadly weapon as to William Maddox, and armed burglary of a dwelling. See Taylor v. State,
At trial, Renata Sikes established that on Friday, May 25, 2001, she, along with her daughter Sandra Kushmer and her son William Maddox, went to visit her husband in the hospital. Kushmer and Maddox left the hospital in a rental car. At approximately 10:30 p.m. that night, Sikes called her home and spoke to Kushmer, who advised that “Ken” was there with Kushmer and Maddox, and, according to Sikes, it sounded as though she was having fun. Thirty minutes later, Sikes again called home to inform her children that she would remain at the hospital, but there was no answer. Sikes called her home repeatedly thereafter, but the calls were never answered. At approximately 3:30 p.m. on Saturday, May 26, 2001, Sikes returned home. Upon arriving, Sikes noticed that the rental car was gone, and she observed blood on the outside of her house. In addition, Sikes discovered her daughter’s medication, purse, and shoes lying outside on the ground. Upon entering the house, Sikes found Kushmer lying in a puddle of blood. As Sikes walked further into the house, she discovex-ed Maddox lying on the bed in a back bedroom. Sikes observed that Maddox’s face was black and blue, his pillow black with blood, but he was still alive. Sikes later determined that cameras belonging to her husband which had been stored in the closet of Maddox’s room were missing.
Cynthia Byrnes was working at Harry’s Country Bar on the night of Friday, May 25, 2001, the night of these events. She saw Kushmer and Maddox enter the bar that night, while Taylor was also present. According to Byrnes, Maddox was drinking the most expensive liquor sold at the bar, paying for his drinks with twenty-dollar bills, and leaving good tips. Byrnes testified that Maddox, Kushmer, and Taylor left the bar together.
On Saturday, May 26, 2001, Tommy Riley awoke to see Taylor on his doorstep. Later that morning, Taylor asked Riley to cash a $580 check, but Riley refused. The name on the two-party check was William Maddox, and it was from a bank in California, where Maddox lived. Later that evening, Taylor was in a bar where Riley worked as a bartender, paying for drinks with twenty-dollar bills. The following morning, Sunday, May 27, 2001, Riley was advised by an employee at Harry’s Bar, where Taylor, Kushmer, and Maddox had been the night of the murder, that detectives were looking for Taylor. Riley conveyed this information to Taylor, and he immediately left Riley’s house in his pickup truck.
The detective in charge of investigating these crimes obtained information that Maddox’s credit cards had been used in Tampa, Florida; Valdosta, Georgia; and Memphis, Tennessee. Based on this information, she contacted the*755 United States Marshal’s Office in Tampa, which then relayed the information to the Marshal’s Office in Tennessee. Deputy Marshal Scott Sanders of the Memphis office received the information on May 29, 2001, from the Tampa office that two warrants for Taylor’s arrest for federal probation violations were outstanding and that Taylor might be in the Memphis area because he was believed to be in possession of credit cards that were being used in that location.
The Tennessee marshals located Taylor’s pickup truck at a motel, and he was taken into custody. Sanders wanted to search Taylor’s motel room at that time but he was unable to do so because he could not locate a Marshal’s Office consent form. He then obtained a consent form from the Shelby County Sheriffs Office, added the words “and the U.S. Marshals Office” to the top of the form, and filled it out, writing in the motel name and the room number to be searched. Sanders explained the form to Taylor and told him the consent form was for his motel room. According to Sanders, Taylor did not express any hesitation in signing the form.
The search of Taylor’s room revealed a checkbook wallet containing checks in the name of Bill Maddox, three credit cards issued to Maddox, credit card receipts, a ticket from a pawn shop in Memphis, a Discover credit card issued to Sandra Kushmer, and a Texaco card issued to Barry Sikes, which Renate [sic] Sikes testified she had given to Kushmer. Receipts dated May 29, 2001, indicated that the Maddox credit card had been used to purchase a gold chain and a wedding band. The pawn shop ticket with the same date indicated that Taylor had pawned the two items.
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... [T]he lead Florida detective searched Taylor’s truck and found a black bag on the floorboard which contained cameras and camera accessories. The detective presented these items to Sikes, who identified them as belonging to her husband. The detective then went to a bar in Memphis at which Taylor had used the Maddox credit cards and spoke with Pamela Williams, who disclosed that Taylor had purchased drinks for her at the bar on the night of May 28, 2001, and introduced himself to her as William Maddox. She also showed the detective a note given to her by Taylor which he signed as “Bill Maddox” and identified himself as the owner of his own financial corporation.
After speaking with Williams, the detective returned to interview Taylor again. When Taylor was advised by the detective that she did not believe everything he had related the day before, Taylor told her the interview was over. However, Taylor continued to speak, and at one point, he said, “I shot her.”
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The medical examiner, Dr. Lee Miller, testified that the cause of Kushmer’s death was a shotgun wound to the head that penetrated her arteries and veins, which caused her to bleed to death. Based on the available evidence, at the time of the shooting the shotgun had been pressed against Kushmer’s mouth. The wound path was consistent with Kushmer having been in a sitting position .... Additionally, the laceration on the back of Kushmer’s head was consistent with being struck by the butt of a shotgun.
A blood spatter expert opined that the blood smears on the outside wall of the Sikes home were likely caused by Kush-mer’s bloody hair. Further, high-veloci*756 ty blood spatter located to the left of the smears indicated that the spatter was caused by a gunshot wound. The impact site was consistent with a victim who had been shot in the mouth while sitting or kneeling at the time. The blood patterns inside the Sikes home were consistent with Kushmer’s body having been carried into the home and swung in an arc-like manner before being dropped on the floor.
Latent fingerprints were lifted from beer bottles found in the garbage at the scene. A fingerprint expert matched one latent fingerprint with the known print of Taylor’s right index finger. The Hillsborough County Sheriffs Office collected the shotgun and the pawn ticket from the shop where Taylor had pawned the item. A different fingerprint examiner was of the opinion that a thumbprint on the pawn ticket from the shotgun transaction also matched the known fingerprints of Taylor. The Florida Department of Law Enforcement tested the shotgun, and two areas tested positive for blood. DNA testing on the blood from these two areas generated partial DNA profiles that matched the profile of Maddox at three and four genetic points.
After hearing the evidence, the jury rendered a verdict finding Taylor guilty of first-degree murder as to the death of Kushmer, attempted first-degree murder as to William Maddox, robbery with a deadly weapon as to Maddox, robbery with a firearm as to Kushmer, and armed burglary of a dwelling.
See Taylor,
During the penalty phase, the trial court sentenced Taylor to death for the murder of Kushmer. See id,.,
On direct appeal, this Court affirmed Taylor’s convictions and sentences. See id. at 592.
Postconviction Proceedings
On October 9, 2006, Taylor, pursuant to rule 3.851, filed a motion to vacate and set aside his convictions and sentences. That
Taylor requested an evidentiary hearing for claims i-ix, and, after a Huff
Ineffective Assistance of Counsel
For a claim of ineffective assistance of trial counsel, this Court follows the United States Supreme Court’s decision in Strickland v. Washington,
First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.
Maxwell v. Wainwright,
The Strickland test presents mixed questions of law and fact, which compels this Court to employ a mixed standard of review when it addresses those claims, deferring to the circuit court’s factual findings that are supported by competent, substantial evidence, but reviewing a circuit court’s legal conclusions de novo. See Seibert v. State,
When addressing a claim of ineffective assistance of counsel, a court employs a strong presumption that the performance of counsel was not ineffective. See id. It is the province of the defendant to overcome this presumption and the supposition that the challenged action was the product of sound trial strategy. See Pagan v. State,
Strategic decisions of counsel 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.’ ” Seibert,
The Sixth Amendment of the United States Constitution guarantees the right to effective assistance of counsel at all critical stages of a criminal prosecution. See U.S. Const, amend. VI. In cases where a defendant is indigent, that defendant is entitled to court-appointed counsel. See Fla. R.Crim. P. 3.111(b)(1). A defendant may waive the right to counsel, so long as that waiver is conducted knowingly, voluntarily, and intelligently. See Faretta v. California,
The right of a criminal defendant to effective assistance of counsel includes the right to competent counsel. See McKenzie v. State,
The right to effective assistance of counsel also encompasses the right to conflict-free counsel. See Hunter v. State,
Further, Taylor failed to establish prejudice caused by the advice of trial counsel. As illustrated during the postconviction proceedings, if trial counsel had moved to withdraw based on the allegations of Taylor, the trial court would not have held a Nelson hearing. That is because the only statement of Taylor that pertained to the purported ineffectiveness of counsel was a blank and generalized statement that a conflict of interest existed. Taylor did not provide any specific instance or basis to support his statement of a conflict of interest, or establish how he was prejudiced by his failure to move to have counsel discharged. Therefore, competent, substantial evidence supports the finding of the postconviction court that trial counsel were not ineffective, and this claim is without merit.
Next, Taylor contends that the postconviction court incorrectly denied his claim that trial counsel were ineffective for failure to properly investigate the effects of the alleged overmedication of Taylor. The performance of counsel is not deficient, even when counsel fails to seek a competency evaluation with regard to the effects of psychotropic medication, so long as there is no evidence that calls into question the competency of the defendant. See Groover v. State,
In this ease, trial counsel testified during the evidentiary hearing that they did not investigate the effects of Taylor’s medication because Taylor displayed no outward signs that his medication had any negative effects on his cognitive functions. According to trial counsel, Taylor appeared to be coherent and in full possession of his faculties, and he was engaged and active during the pretrial and trial proceedings. Trial counsel also testified that they did not notice any odd behavior that was indicative of a medication overdose.
The testimony of Dr. Donald Taylor, M.D., during the postconviction evidentia-ry hearing bolstered the validity of the testimony of trial counsel. Dr. Taylor testified concerning his four-hour competency
Taylor also claims that the postconviction court erred when it denied his claim that trial counsel were ineffective for prematurely ending plea discussions and for their failure to use a mental health expert during the plea discussions. A criminal defendant is entitled to effective assistance of counsel during the plea process. See Cottle v. State,
(1) counsel failed to communicate a plea offer or misinformed defendant concerning the penalty faced, (2) defendant would have accepted the plea offer but for the inadequate notice, and (3) acceptance of the State’s plea offer would have resulted in a lesser sentence.
Id. at 967 (emphasis added).
Florida Rule of Criminal Procedure 3.171(c) provides the obligations of trial counsel in connection with plea negotiations and the entry of a plea:
(c) Responsibilities of Defense Counsel.
(1) Defense counsel shall not conclude any plea agreement on behalf of a defendant-client without the client’s full and complete consent thereto, being certain that any decision to plead guilty or nolo contendere is made by the defendant.
(2) Defense counsel shall advise defendant of:
(A) all plea offers; and
(B) all pertinent matters bearing on the choice of which plea to enter and the particulars attendant upon each plea and the likely results thereof, as well as any possible alternatives that may be open to the defendant.
(Emphasis added.) In accordance with this rule, defense counsel have a duty to obtain the consent of a defendant before they execute a plea agreement on behalf of that defendant, and to advise the defendant of all plea offers and pertinent matters with regard to a plea. See Fla. R.Crim. P. 3.171. There is, however, no explicit, delineated duty provided in rule 3.171 that requires counsel to ever seek the aid of a third party or mental health expert during the plea discussions. See id.
In this case, the postconviction court’s finding that trial counsel were not ineffective during the plea negotiations was supported by competent, substantial evidence. As established during the postconviction evidentiary hearing, trial counsel believed that it was in the best interest of Taylor to plead guilty in exchange for a life sentence to avoid the death penalty. In February 2003, trial counsel — with the consent of Taylor — explored such a plea offer with the State. However, before the State responded, Taylor decided to rescind his consent to explore a plea offer. Regardless of Taylor’s actions, the State and its homicide committee rejected that offer before it could be withdrawn by trial counsel. Then, in March 2004, immediately before the start of trial, the State approached defense counsel concerning the possibility of a plea offer, contingent on the assurance
The actions of trial counsel during the plea discussions were in accord with prevailing professional norms and they followed rule 3.171, i.e., trial counsel did not make or accept a plea offer without the consent of Taylor. Further, trial counsel cannot be held ineffective for their actions during the plea process because Taylor has failed to establish prejudice, i.e., that he would have accepted a formal plea offer if one was made. See Cottle,
Furthermore, competent, substantial evidence supports the postconviction court’s finding that trial counsel were not ineffective in their decision not to engage the assistance of a mental health expert during the plea discussions with Taylor. As previously discussed, Taylor appeared competent and engaged during the trial proceedings. Dr. Taylor also testified that when he interviewed the defendant in 2004, Taylor was competent and displayed no sign of cognitive impairment. Thus, trial counsel did not perform deficiently when they did not obtain the assistance of a mental health expert during the plea negotiations because trial counsel reasonably concluded that the aid of such a mental health expert was not needed due to the apparent competency of Taylor during the plea negotiations.
Taylor has also failed to establish prejudice from trial counsel’s decision not to utilize the assistance of a mental health expert during plea negotiations. More specifically, Taylor did not present evidence to establish that the outcome of the trial court proceedings would have been different if plea discussions included a third party expert, i.e., he did not establish that, if a mental health expert had participated in the plea discussions, he would have altered his decision to reject a plea possibility and would have accepted a plea offer. Accordingly, Taylor fails under the prejudice prong of Strickland. See Cottle,
Taylor further contends that the postconviction court incorrectly denied his claim that trial counsel were ineffective for their failure to investigate the alleged link between Taylor’s low levels of serotonin and his violent behavior, and for their failure to present evidence of Taylor’s alleged seizures and seizure medication. To determine if counsel was ineffective for failure to present evidence of mitigation, a court will examine not only the failure to investigate and present possibly mitigating evidence, but the reasons for doing so. See Jones v. State,
Although counsel is not required to conduct a mental health evaluation for mitigation purposes in every capital case, he or she does have a strict duty to reasonably investigate the background of a defendant for possible mitigating evidence. See id. at 583. When available information points to the existence of men
In this case, competent, substantial evidence supports the finding of the postcon-viction court that trial counsel did not act deficiently when they did not present evidence with regard to the alleged low levels of serotonin of Taylor at the time of the homicide. Although Dr. James R. Meri-kangas, M.D., testified at the postconviction evidentiary hearing that Taylor may have low serotonin, Taylor failed to establish that in fact he had low serotonin either permanently or at the time of the homicide. In fact, during the postconviction evidentiary hearing, Dr. Merikangas could not confirm that Taylor ever had low serotonin and admitted that the serotonin levels of Taylor had never been physically tested. Dr. Joseph John Sesta, Ph.D., also testified during the evidentiary hearing and stated that he could not confirm to a reasonable degree of medical certainty that Taylor ever had low levels of serotonin, or that such a serotonin deficiency existed at the time of the homicide.
Further, Taylor failed to establish how the decision of trial counsel to not present evidence of his alleged low serotonin prejudiced him. He did not provide testimony as to how the presentation of such evidence would have led to the mitigation of his sentence, or how its absence exacerbated the severity of the recommended sentence of the jury. It is also a dubious proposition that testimony with regard to low serotonin would have altered the jury’s unanimous recommended sentence of death, especially given the penalty phase evidence presented with regard to the mental health issues of Taylor. That evidence included the testimony of Dr. Harry Krop, Ph.D., which provided a detailed description of the asserted cognitive impairments of Taylor that included frontal lobe syndrome and brain injuries, as well as a litany of mental health diagnoses that included adjustment disorder, depression, borderline personality disorder, and antisocial personality disorder. Dr. Krop also testified during the penalty phase that Taylor abused alcohol and was intoxicated at the time of the homicide, which, along with his mental health disorders, affected his ability to conform his conduct to the requirements of law. Included in Dr. Krop’s testimony were factors with regard to the emotional and physical abuse Taylor suffered as a child. Accordingly, competent, substantial evidence exists to support the postconviction court’s finding that trial counsel were not ineffective in their failure to present evidence of Taylor’s alleged low serotonin.
There is also competent, substantial evidence to support the postconviction court’s finding that trial counsel were not deficient in their failure to advise the trial
Therefore, given the disputed evidence that surrounded the alleged seizure disorder, there was competent, substantial evidence to support the finding that trial counsel did not act deficiently when they failed to advise the trial court about Taylor’s alleged recent seizures and seizure medications. Even if trial counsel were deficient, Taylor failed to establish how he was prejudiced by the performance of trial counsel. As supported by the record, trial counsel presented extensive mitigation evidence of Taylor’s mental health, emotional, and physical issues during the penalty phase. Taylor has failed to establish how the mere addition of equivocal and disputed evidence of alleged recent seizures and seizure prescriptions would have altered the unanimous recommendation of the death penalty by the jury. Therefore, the postconviction court was correct in finding that Taylor is not entitled to relief.
In Taylor’s next claim, he contends that the postconviction court incorrectly denied his claim that trial counsel were ineffective for their failure to present Dr. Sesta as a witness during the penalty phase. This Court has consistently held that the strategic decision of trial counsel not to present a certain witness does not constitute ineffective assistance of counsel if that decision was the product of a reasonable trial strategy. See Everett v. State,
As addressed during the postconviction evidentiary hearing, trial counsel, although they respected Dr. Sesta and his credentials, strategically did not think that Dr. Sesta would have been a positive witness for Taylor. Among the numerous reasons was that Dr. Sesta unilaterally conducted psychological testing of Taylor that trial counsel did not consider helpful or useful to the disposition of Taylor’s case, i.e., Dr. Sesta performed a personality test on Taylor even though trial counsel did not request this testing. It was also established at the evidentiary hearing that trial counsel did not consider the prospect of Dr. Sesta’s testimony or results of his testing — along with his accompanying diagnosis of Taylor — to be beneficial to Taylor because the opinion would have conflicted with the testimony of other defense witnesses, Dr. Krop and Dr. David McCra-ney, M.D. More specifically, Dr. Sesta’s
In addition, Taylor contends that the postconviction court acted incorrectly when it denied his claim that the cumulative errors of trial counsel deprived him of a fair trial. Taylor has failed to establish any meritorious claim of ineffective assistance of trial counsel. Therefore, there are no cumulative errors of trial counsel that equate to a degradation of his fundamental right to a fair trial. See Bradley v. State,
Lastly, Taylor contends that he will be subject to cruel and unusual punishment at the time of execution because he is not legally competent. Taylor concedes that this claim is not ripe for review by this Court. Therefore, no relief is warranted. See Anderson v. State,
Petition for Writ of Habeas Corpus
In his petition for writ of habeas corpus, Taylor contends that his counsel on direct appeal was ineffective because she raised only boilerplate issues on direct appeal, improperly contested the constitutionality of the standard penalty phase jury instructions when a special instruction was given, and failed to raise meritorious issues that had been presented before the trial court.
A claimant appropriately raises a claim of ineffective assistance of appellate counsel in a petition for writ of habeas corpus. See Freeman v. State,
first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.
Pope v. Wainwright,
In this case, appellate counsel performed deficiently when she challenged the constitutionality of a standard penalty phase jury instruction on direct appeal because that instruction was not given by the trial court. More specifically, on direct appeal, this Court rejected the challenge to the standard jury instruction by appellate counsel because we have repeatedly determined that the specific instruction did not shift the burden of proof to the defendant and was constitutional.
However, Taylor has failed to establish how the deficient performance of appellate counsel prejudiced him to such a degree that it undermined confidence in the correctness of the result of his direct appeal. Taylor has failed to establish how the decision to contest the standard instruction deprived him of a meaningful direct appeal, or how the decision of appellate counsel negatively affected the result of his direct appeal. Even if appellate counsel had contested the special instruction, the outcome of Taylor’s direct appeal would not have been altered because the more detailed, special instruction would probably have been affirmed as proper.
Lastly, Taylor has failed to sufficiently establish either deficient performance or prejudice emanating from the alleged error by appellate counsel for raising boilerplate issues rather than allegedly meritorious issues on direct appeal. Taylor merely lists an abundance of claims that appellate counsel could have raised on direct appeal. He does not provide a factual or legal basis as to why appellate counsel was ineffective for failing to raise those claims. Therefore, Taylor has failed to provide a sufficient basis for which this Court may grant relief.
Conclusion
For the foregoing reasons, we affirm the postconviction court’s denial of Taylor’s rule 3.851 motion and deny Taylor’s petition for a writ of habeas corpus.
It is so ordered.
Notes
. Huff v. State,