Trotter v. StateTrotter v. State
I. FACTS AND PROCEDURAL HISTORY
In 1986, Trotter, in the course of robbing a store, murdered the seventy-year-old shop owner. She died from the seven stab wounds he inflicted, one of which disemboweled her. Trotter v. State, 576 So.2d 691, 692 (Fla. 1990). Upon his conviction for robbery and first-degree murder, the court imposed a death sentence. On appeal, we affirmed Trotter‘s convictions but vacated the sentence and remanded for a new penalty phase because the trial court erred in treating his violation of community control as an aggravating factor. Id. at 694.1
Following the new penalty phase, eleven jurors recommended death, and the court imposed that sentence after finding four aggravating factors and two statutory, and several nonstatutory, mitigating factors. Trotter v. State, 690 So.2d 1234, 1236 (Fla. 1996), cert. denied, 522 U.S. 876, 118 S.Ct. 197, 139 L.Ed.2d 134 (1997).2 On appeal, Trotter raised ten issues, including a contention
Subsequently, Trotter filed a motion for postconviction relief under
Trotter filed this appeal and petitioned for writ of habeas corpus. Following this Court‘s promulgation of
II. THE ISSUES ON APPEAL
Trotter raises issues regarding his claim that he is mentally retarded. He also raises several claims on appeal from the denial of his postconviction motion. Below we address two issues regarding mental retardation. We then address three issues from his original appeal.
A. Mental Retardation Claims
We first address two issues Trotter raised in his supplemental brief regarding
1. Whether Trotter is Mentally Retarded
To establish mental retardation, a defendant must demonstrate all three of the following: (1) significantly subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) manifestation of the condition before age eighteen.
As used in this rule, the term “mental retardation” means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18. The term “significantly subaverage general intellectual functioning,” for the purpose of this rule, means performance that is two or more standard deviations from the mean score on a standardized intelligence test authorized by the Department of Children and Family Services in
rule 65B-4.032 of the Florida Administrative Code. The term “adaptive behavior,” for the purpose of this rule, means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of his or her age, cultural group, and community.
(Emphasis added.) Section
First, no expert who tested Trotter‘s IQ as an adult, including those who also examined his adaptive skills, found that Trotter meets the definition for mental retardation. They reported IQ scores ranging from 72 to 91. The court found that variances in Trotter‘s IQ subtest scores were inconsistent with mental retardation. Trotter‘s scores on some subtests were normal, and score variances were explained by his not starting school until age nine and the deficient environment in which he grew up. The testimony and reports of several doctors directly supported this conclusion, including Dr. Krop, who examined and tested Trotter and reviewed numerous records. These same doctors found that Trotter was not deficient in adaptive skills. In addition, Dr. Mosman, a defense expert, did not assess adaptive skills because Trotter‘s IQ excluded Trotter from the mental retardation category.
Trotter‘s arguments on appeal rest almost completely on the testimony of Dr. Calvin Pinkard. In 1974, Dr. Pinkard tested and interviewed Trotter (then age
In 2002, however, Pinkard reversed himself. He opined that Trotter was at age fifteen, and is as an adult, mentally retarded. He testified that Trotter‘s 1976 IQ score of 88 was artificially inflated by eight points, and having read Dr. Mosman‘s affidavit, Pinkard testified that Trotter had deficits in adaptive functioning. Pinkard did not examine or conduct any new testing on Trotter.
Because Dr. Pinkard is the only expert who examined Trotter in his youth, Trotter contends his testimony should be essentially determinative and afforded great weight. We disagree. First, the question of evidentiary weight is reserved to the circuit court, and this Court does not reweigh the evidence. Tibbs v. State, 397 So.2d 1120, 1123 (Fla. 1981) (“Legal sufficiency alone, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal.“), aff‘d, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). Second, the circuit court found Dr. Pinkard‘s testimony unreliable. The determination of the credibility of witnesses also is reserved to the trial court. Windom v. State, 886 So.2d 915, 927 (Fla. 2004) (“This Court has held that it will not substitute its judgment for that of the trial court on questions of fact, and likewise on the credibility of witnesses and the weight given to the evidence so long as the trial court‘s findings are supported by competent, substantial evidence.“).
When Trotter was fifteen, Pinkard concluded that Trotter was not mentally retarded. As the circuit court found, even if the IQ score of 88 were adjusted down to 80, the IQ would still be above the mental retardation level, a fact Pinkard admitted. Importantly, Pinkard‘s revised opinion does not rest on his own new examination or testing of Trotter; he did none. In fact, there is no basis in his own testimony to support his new opinion. His opinion is contradicted by the testimony of all of the other experts who did examine Trotter. Accordingly, we affirm the trial court‘s determination that Trotter is not mentally retarded.
2. Proportionality Claim
Trotter next contends that the 1993 resentencing order is deficient and that the death sentence is not proportional. These arguments were not preserved below and are procedurally barred because we considered them on direct appeal from Trotter‘s resentencing. See Trotter, 690 So.2d at 1236 n. 8, 1237 (denying without discussion Trotter‘s claim that resentencing order was deficient as meritless). Further, this Court considers the question of proportionality in each death penalty case on direct review of the sentence, even when we do not directly address the issue in the written opinion. See Patton v. State, 878 So.2d 368, 380 (Fla. 2004) (“[P]roportionality review is inherent in this Court‘s direct appellate review and the issue is considered regardless of whether it is discussed in the opinion or raised by a party. . . .“); see also Anderson v. State, 841 So.2d 390, 407 (Fla. 2003) (“Due to the uniqueness of the penalty, this Court addresses the propriety of all death sentences in a proportionality review.“);
B. Ineffective Assistance of Counsel Claims
Trotter raises three claims on appeal from the denial of his postconviction motion: (1) that Trotter‘s mental health expert did not provide competent and effective assistance under Ake v. Oklahoma, 470 U.S. 68, 74, 84, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (holding where sanity at the time of crime is at issue and in capital penalty proceedings where expert assistance is needed, due process requires that an indigent defendant have psychiatric expert assistance); (2) that trial counsel was ineffective for failing to investigate Trotter‘s background and develop available mitigation; and (3) that trial counsel was constitutionally ineffective for failing to file a timely motion to vacate a prior conviction.7
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court established a two-pronged standard for determining whether counsel provided legally ineffective assistance. First, a defendant must point to specific acts or omissions of counsel that are “so serious that counsel was not functioning as the `counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. Second, the defendant must establish prejudice by “show[ing] that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Id. Claims of ineffective assistance present mixed questions of law and fact. Occhicone v. State, 768 So.2d 1037, 1045 (Fla. 2000). This Court independently reviews the trial court‘s legal conclusions and defers to the trial court‘s findings of fact. As explained below, we affirm the denial of each of Trotter‘s claims.
1. Mental Health Expert Assistance
In his postconviction motion, Trotter alleged that counsel was ineffective because Trotter did not have the assistance of a competent and effective mental health expert in Dr. Krop.8 On appeal, however, Trotter presents a different claim: that Krop did not provide competent and effective assistance as required by Ake. Accordingly, this claim was not preserved for appellate review. As explained below, it is also meritless.
In Ake, the United States Supreme Court held, with regard to the sentencing phase of capital trials, that “due process requires access to a psychiatric examination on relevant issues, to the testimony of the psychiatrist, and to assistance in preparation at the sentencing phase.” 470 U.S. at 84, 105 S.Ct. 1087. This requirement of access to, and assistance
Moreover, Trotter‘s allegations both below and on appeal are based on the testimony of Trotter‘s more recently hired mental health expert. As we have previously stated, mental health investigation and testimony are not rendered incompetent “merely because the defendant has now secured the testimony of a more favorable mental health expert.” Gaskin v. State, 822 So.2d 1243, 1250 (Fla. 2002) (quoting Asay v. State, 769 So.2d 974, 986 (Fla. 2000)). Accordingly, Trotter is not entitled to relief on this claim.
2. Investigation into Mitigation
Trotter contends that resentencing counsel was ineffective for failing either to present Trotter‘s two nieces as penalty phase mitigation witnesses or to provide them to Dr. Krop for interviews. The trial court found their testimony both irrelevant and cumulative. We affirm.
The two nieces were Gladys Casimir and Marshanette Polite. Gladys was four years old when Trotter was placed in foster care, and Trotter lived with Marshanette‘s family for a time when she was five or six years old, and she had no more contact with him until they were both adults. They testified, for example, that Trotter married a drug-using prostitute, cared for her children, and was “slow.” In contrast, Dr. Krop, who testified for Trotter at both sentencing and resentencing, interviewed Trotter six times; reviewed numerous documents, including school records, psychological testing, and prison records; interviewed several people, including Trotter‘s mother, foster mother, sister, and one of Trotter‘s friends, a former foster child who lived with Trotter‘s foster family, and a correctional officer who knew Trotter; and consulted a pharmacologist, a psychiatrist, and a neuropsychologist. As stated previously, the testimony presented at resentencing established two statutory and several nonstatutory mitigating circumstances. Accordingly, Trotter failed to meet either of Strickland‘s requirements.
3. Trotter‘s Prior Conviction
Trotter‘s final argument on appeal is that trial counsel was ineffective for failing to file a timely motion to vacate a prior conviction. In September 1985, Trotter
Trotter contends that the circuit court erred in denying his 3.850 motion to vacate the 1985 conviction. He also claims that defense counsel was ineffective for not filing a motion to vacate the 1985 conviction at the time of his first murder trial and sentencing. We address each claim in turn.
First, on direct appeal from resentencing, Trotter argued that the trial court erred in denying his motion challenging the validity of his 1985 conviction. See Trotter, 690 So.2d at 1236 n. 8. Without discussion, we affirmed denial of the issue as meritless. Id. at 1237. Accordingly, not only could Trotter have raised a claim on direct appeal, but he did so, and is thus procedurally barred from raising any claim regarding the 1985 plea and conviction.
Trotter also claims that defense counsel was ineffective for failing timely to file a motion attacking the 1985 conviction. Assuming this issue is not moot in light of our prior remand for a new penalty phase, we find the claim lacks merit. The trial court in 1992 denied the motions to withdraw the plea and to vacate the conviction as procedurally barred because they were filed beyond the two-year limit of
III. THE HABEAS PETITION
Trotter also petitions us for a writ of habeas corpus, raising two claims, one of which he admits is not yet cognizable for review. We deny both claims as explained below.
Trotter first contends that his death sentence is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). This Court previously has held that neither Apprendi nor Ring applies retroactively. See Hughes v. State, 901 So.2d 837, 838 (2005) (holding that Apprendi does not apply retroactively); Johnson v. State, 904 So.2d 400, 412 (Fla. 2005) (holding that Ring does not apply retroactively). Accordingly, we deny this claim.
In his second habeas issue, Trotter argues that he may be incompetent at the time of execution. He admits, however, that his claim is not ripe for review. Trotter is correct, and we deny this claim as well. See Hall v. Moore, 792 So.2d 447, 450 (Fla. 2001) (stating that consideration of death-sentenced defendant‘s claim of incompetency
IV. CONCLUSION
Having considered the briefs and the supplemental briefs filed following remand and having reviewed the petition for writ of habeas corpus and heard oral argument in this cause, we affirm the denial of postconviction relief and the order determining Trotter is not mentally retarded, and we deny Trotter‘s habeas petition.
It is so ordered.
PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, CANTERO, and BELL, JJ., concur.
QUINCE, J., recused.