WILLIAM JAMES DEPARVINE, Appellant, vs. STATE OF FLORIDA, Appellee. WILLIAM JAMES DEPARVINE, Petitioner, vs. MICHAEL D. CREWS, etc., Respondent.
No. SC12-407, No. SC12-2124
Supreme Court of Florida
[April 24, 2014]
William James Deparvine appeals an order of the circuit court denying his initial postconviction motion to vacate his conviction of first-degree murder and
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The facts of this case were set forth on direct appeal in Deparvine v. State, 995 So. 2d 351, 356-61 (Fla. 2008). They are summarized here. Deparvine was convicted of the November 25, 2003, first-degree murders of Rick Van Dusen (Rick) and Karla Van Dusen (Karla), as well as one count of armed carjacking of Rick‘s 1971 Chevrolet Cheyenne pickup truck (Cheyenne) in Hillsborough County, Florida. The State‘s theory of the case at trial was that Deparvine responded to the Van Dusens’ attempts to sell the Cheyenne and subsequently murdered them in a plot to take the Cheyenne. Id. The jury recommended that Deparvine be sentenced to death on both murder counts by a vote of eight to four. The trial court sentenced him to death.
The Van Dusens ran multiple ads from February 11, 2003, to November 20, 2003, seeking to sell the Cheyenne for as high as $18,900 to as low as “$13,700 or partial trade for four wheel drive jeep.” Id. at 356. On November 25, 2003, the Van Dusens, believing they were completing the sale of the Cheyenne to
A: I‘m following Rick and the guy that bought the truck. He knows where to get the paperwork done tonight.
....
Q: [State]: Did Karla Van Dusen tell you how the guy was going to pay for the truck that night?
A: She said he‘s got cash.
Id. The next morning the bodies of Rick and Karla were found along a dirt road next to a residence, approximately 3.4 miles away from the last recorded cell tower used by the Van Dusens in Oldsmar. Rick was shot once in the back of the head. He was found with his wallet and money clip containing eighty-three dollars, two gold rings, a cell phone, and a watch. Karla was shot twice in the head and stabbed
The Jeep Karla was driving was discovered 1.3 miles away from the Van Dusens’ bodies at Artistic Doors, a local business. Id. The windshield was cracked and detectives recovered a bullet fragment from the dashboard, a shell casing between the passenger front seat and the doorway, and a bullet fragment on the front passenger floorboard. On the ground next to the Jeep on the driver‘s side was a Florida identification (I.D.) card issued on November 26, 2002, belonging to Henry Sullivan. Id.
Chief forensic print analyst Mary Ellen Holmberg analyzed one print of value for comparison lifted from Sullivan‘s ID card, which remained unidentified. Id. Further, the Van Dusens’ Cheyenne did not make the tire marks around the Jeep. Id. at 357-58. Bloodstains, however, were found throughout the driver and passenger sides of the Jeep. Four of five blood samples taken from different points on the steering wheel of the Jeep matched Deparvine‘s DNA, including one mixture bloodstain containing Deparvine‘s and Rick‘s DNA. Id. at 358. Two additional blood samples taken from different locations on the steering wheel of the Jeep were analyzed by a private laboratory. The samples matched Deparvine, thus six different bloodstains on the steering wheel were linked to Deparvine.
On November 27, 2003, the Van Dusens’ Cheyenne was discovered parked behind Deparvine‘s apartment. A search of Deparvine‘s apartment was conducted on December 24, 2003, pursuant to a warrant. A notarized bill of sale from Rick to Deparvine dated November 25, 2003, was discovered indicating a purchase price of $6,500. Susan A. Kienker, who notarized the bill of sale, later testified that Rick, whom she knew personally, asked her to notarize the bill of sale on November 25, 2003, and handwriting expert Don Quinn confirmed Rick‘s handwriting on the bill of sale as authentic.
George Harrington testified that he came into contact with Deparvine in August 2003, when Harrington was seeking to sell his 1996 F-150 pickup truck for approximately $7,800. Id. Harrington testified that Deparvine wanted to purchase the pickup truck, but before he did, he asked to take the truck to Oldsmar where his mechanic friend would inspect it. Id. Deparvine indicated that he would pay for the truck in cash, which he kept at his friend‘s house in Oldsmar. Id. Deparvine gave Harrington a blank bill of sale and told him to have it notarized, which he did, but the sale was never completed.
Deparvine testified that he had been looking to purchase a pickup truck during the six-month period preceding November 2003. He said that he saw the Van Dusens’ ads from February to November and inquired about the Cheyenne in February, July, September, and November. Deparvine testified that on Sunday,
Deparvine also testified that he told Rick that he only had $6,500 in cash to pay for the Cheyenne, which Rick accepted because he wanted to get rid of it. Id. Deparvine then testified that he paid $1,500 in cash as a deposit. Deparvine gave Rick a blank bill of sale for Rick to complete and they agreed that the Van Dusens
On November 25, 2003, at approximately 5:30 p.m., Rick, driving the Cheyenne, and Karla, following in the Jeep, arrived at the apartment complex. Deparvine testified that he told the Van Dusens to drive around to the back parking lot of the complex to complete the sale. Id. Deparvine then testified that he noticed a person who seemed to be with the Van Dusens driving a red vintage truck that was similar to the Van Dusens’ Cheyenne. Id. Deparvine described the driver of the similar truck as a white male in his mid-fifties with a salt-and-pepper-colored beard, a receding hairline, and wearing sunglasses. On cross-examination, Deparvine admitted that this description was consistent with his own appearance. Id. Once at the back parking lot, Rick exited the Cheyenne and entered the passenger side of the Jeep. Deparvine entered the Jeep and sat in the backseat behind Karla. Id. According to Deparvine‘s testimony, Deparvine then paid the $5,000 remaining balance of the sales price in cash and Rick gave him a notarized bill of sale indicating a purchase price of $6,500. Rick, however, had not been able to find the title but agreed to send it to Deparvine after Thanksgiving. After Deparvine exited the Jeep, Rick entered the similar red vintage truck Deparvine had seen and the two vehicles left, with Karla following in the Jeep. Id. Deparvine
Deparvine, whose bank statement never contained more than $826.21 between June 27, 2003, and December 31, 2003, testified that he obtained the funds to purchase the vehicle by selling a Rolex watch that he inherited while he was in prison from a terminally ill inmate named Bill Jamison, whom he had befriended. Id. at 359-60. Deparvine sold the watch for $7,000 to “a couple of Hispanic guys.” Id. Deparvine could not give any other description of these buyers. Deparvine testified that he kept the cash at his apartment.
After presentation of all the evidence, on August 3, 2005, a jury found Deparvine guilty of both counts of first-degree murder and one count of armed carjacking. Id.
Penalty Phase
During the penalty phase, the State presented the testimony of Officer Richard Gordon, who testified that on April 28, 2003, Deparvine was on conditional release for possession of a firearm by a convicted felon and carrying a concealed weapon. Id. The State then presented five witnesses as victim-impact testimony: (1) Michelle Kroger, Rick‘s youngest daughter; (2) Jay Meyers, Karla‘s son; (3) Christine Crawford, who read a statement prepared by Rene Koppeny, Rick‘s other daughter; (4) Morene Cancelino, Rick‘s sister, who read a statement
On August 4, 2005, the jury recommended that Deparvine be sentenced to death by a vote of eight to four on both murder counts. Id. at 361. A Spencer3 hearing was held on November 22, 2005, wherein two witnesses testified. Dr. Eric Rosen, a psychologist, testified that Deparvine showed “elevated scales for depression and also for psychopathic deviance,” and that although he does not suffer from a “full personality disorder,” he suffers from personality disorder traits and was diagnosed as having dysthymic mood disorder, which is a type of depression. Id. Nevertheless, Dr. Rosen testified that Deparvine was above average in intellect and that his personality disorder shaped the choices he made, but did not limit his ability to make choices.
On January 9, 2006, the trial court sentenced Deparvine to death, finding four aggravating factors and giving them all great weight. Id. The trial court found that the murders were: (1) cold, calculated and premeditated (“CCP“); (2) committed for pecuniary gain; (3) committed by a person previously convicted of a felony and under sentence of imprisonment, or placed on community control, or on felony probation; and (4) committed by one previously convicted of another
Direct Appeal
On direct appeal, Deparvine raised several claims. First, Deparvine argued that the trial court erred in admitting Ferris’ testimony regarding Karla‘s statements about where she was and whom she was with during the telephone conversation that ended in Oldsmar. This Court ruled that the statement “I‘m following Rick and the guy that bought the truck” was admissible as a spontaneous statement exception to hearsay. Deparvine, 995 So. 2d at 371. The Court, however, found the statements, “He knows where to get the paperwork done tonight,” and “[h]e‘s got cash,” inadmissible. Id. Nevertheless, the Court ruled that the admission of those statements was harmless error. Id.
Second, Deparvine contended that the indictment charging him with two counts of first-degree murder was void for failure to specify whether the State
Deparvine also raised claims of error regarding the penalty phase. First, Deparvine argued that the trial court allowed the State to present too many victim impact witnesses. Further, he argued that the trial court erred by allowing the victim impact witnesses to display photographs during their testimony. The Court rejected both claims. Second, Deparvine argued that the trial court erred by granting the State‘s for-cause challenge of juror Daryl Rucker. The Court held that Deparvine was procedurally barred from raising the issue on appeal because trial counsel did not make any specific contemporaneous objections. Id. at 379. Third, Deparvine challenged the constitutionality of Florida‘s capital sentencing scheme pursuant to Ring v. Arizona, 536 U.S. 584 (2002). This Court rejected the claim holding that “Deparvine‘s claim is without merit since it is undisputed that he has prior felony convictions.” Deparvine, 995 So. 2d at 379 (citing Marshall v. Crosby, 911 So. 2d 1129 (Fla. 2005)). Fourth, Deparvine challenged the sentencing order, alleging it was defective because it failed to indicate the mitigating circumstances found and it failed to address Dr. Rosen‘s testimony regarding Deparvine‘s mental health disorders. The Court held that the sentencing
Motion for Postconviction Relief and this Appeal
Deparvine filed his initial motion for postconviction relief on February 5, 2010, in which he raised twenty-eight claims. An evidentiary hearing was held on February 7-9, 2011, on eighteen of those claims. Deparvine presented testimony from several witnesses, including Deparvine and John Skye, his counsel at trial. Forensic analysts, lay witnesses, and law enforcement officers also testified in support of Deparvine‘s postconviction claims. On December 6, 2011, the circuit court entered its lengthy order denying relief. The details of the postconviction court‘s ruling, and of the relevant testimony and evidence introduced at the evidentiary hearing, will be discussed below.
In this appeal, he raises twenty-one claims, some with sub-issues.4 Deparvine has also filed a habeas petition raising two claims of ineffective assistance of appellate counsel pursuant to
ANALYSIS
I. Postconviction Appeal
1. Ineffective Assistance of Counsel Claims
Standard of Review
To successfully prove a claim of ineffective assistance of trial counsel, a defendant must satisfy both prongs of the Strickland5 test as follows:
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, however, that trial counsel‘s performance was not ineffective, and judicial scrutiny of counsel‘s performance is highly deferential. See Strickland, 466 U.S. at 689-90. To assess attorney performance, courts must eliminate the distorting effects of hindsight and evaluate the challenged conduct from counsel‘s perspective at the time. Id. at 689. The defendant carries the burden to overcome the presumption that the challenged action may be considered sound trial strategy. Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). “[S]trategic 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).
The Court does not reach both Strickland prongs in every case. “[W]hen a defendant fails to make a showing as to one prong, it is not necessary to delve into
A. Failure to Call Daryl Gibson as an Alibi Witness
Deparvine alleges that trial counsel was ineffective for failing to call Daryl Gibson—who lived in the same apartment building as Deparvine on November 25, 2003—as a defense witness at trial. According to Deparvine, Gibson‘s potential testimony—that he saw Deparvine around dusk on the night of the murders for approximately 30 to 60 minutes—would have conflicted with the State‘s theory that the Van Dusens and Deparvine were miles north of St. Petersburg by then. For the following reasons, we affirm the postconviction court‘s denial of relief on this claim.
After much reluctance, Gibson testified in the postconviction proceeding that he remembered seeing the Van Dusens, Karla in the Jeep and Rick in the Cheyenne, and Deparvine at the front of the apartment building on the day of the murders. He also testified that he remembered seeing Deparvine a little later that day, November 25, 2003, when there was still light and the “sun was going down.” He also stated that it was approximately half an hour later when he saw Deparvine
Trial counsel also testified at the evidentiary hearing about his reasoning for not calling Gibson as a defense witness. Trial counsel testified that Gibson would be a bad witness because he provided inconsistent statements, two of which would be devastating, and the third, which was potentially exculpatory, would be “roundly and soundly impeached.” In Gibson‘s first interview with police, he denied having seen or heard anything. In a second police interview almost a year later, Gibson, who by then was incarcerated and facing multiple charges including attempted first-degree murder, provided information that trial counsel considered “quite damaging.” In that interview, Gibson stated that he witnessed Deparvine meet Rick and Karla in front of the apartment building wearing a ball cap and a backpack, saw Deparvine gesture towards the north, heard Karla ask “how far is it?” but did not hear the answer, and did not see a second red truck or observe the Cheyenne in the back parking lot. Gibson confirmed this information in a separate interview with trial counsel.
A short time later, trial counsel received a notice of exculpatory evidence from the State, which provided that Gibson added information in a third statement to police placing Deparvine at the apartment building around dusk without his backpack. However, trial counsel felt that Gibson added this portion to his
Trial counsel also testified that he felt that Gibson‘s first two statements confirmed the police theory because he told detectives that he did not see a second red truck, but saw Deparvine with a backpack, which the State would consider Deparvine‘s “murder kit” (a backpack label was found inside the Jeep). Further, Gibson‘s repeated reluctance to testify was a concern because trial counsel feared that forcing Gibson to testify would result in the creation of adverse evidence, especially because trial counsel felt that Gibson knew more than he was willing to say. Indeed, although it was not suggested by the State or by Gibson that he fabricated any evidence to avoid testifying, Gibson, whose unrelated criminal trial was also quickly approaching, made reference to “not wanting to help himself” by testifying against Deparvine and not wanting to be a “snitch.”
Deparvine testified at the evidentiary hearing that the backpack he carried that day contained a lock and chain for the Cheyenne because he lived in a bad neighborhood. Further, he testified that when Gibson observed him gesturing
After assessing all the testimony, the postconviction court found that Deparvine failed to carry his burden and demonstrate trial counsel‘s performance was deficient and that he was prejudiced by such deficiency. We agree. Deparvine‘s counsel‘s performance was not deficient for failing to call a witness who could potentially provide damaging testimony and repeatedly claimed that he would not testify. As the postconviction court found, trial counsel considered alternative strategies, but ultimately made a reasonable decision not to call a witness he perceived would be “roundly and soundly impeached” and lacked credibility.
This Court has previously found that a trial counsel‘s decision not to present a witness with questionable credibility was not ineffective. See Evans v. State, 995 So. 2d 933, 943 (Fla. 2008) (holding that trial counsel‘s tactical decision not to present witnesses with questionable credibility did not constitute ineffective assistance). Here, although Gibson testified at the evidentiary hearing and during
Even if Deparvine proved trial counsel‘s performance was deficient, he has failed to prove that the deficient performance undermines this Court‘s confidence in the verdict. First, Ferris’ testimony regarding her phone conversation with Karla established that Karla was following Rick and the man who purchased the Cheyenne. This testimony would have been inconsistent with Gibson‘s testimony. Further, Gibson‘s other testimony would have been consistent with the State‘s theory and the State would have impeached Gibson if he testified that he saw Deparvine at dusk around the apartment building for about half an hour. Accordingly, we affirm the postconviction court‘s denial of relief on this claim.
B. Failure to Investigate and Subsequently Call Wendy Dacosta as a Witness.
In this next claim, Deparvine alleges that trial counsel was ineffective for failure to competently investigate and call Dacosta as a witness at trial to testify that she saw a red truck near the Jeep at approximately 7:25 a.m. the day the Van Dusens’ bodies were discovered. The postconviction court found that Deparvine failed to show that trial counsel‘s performance was deficient or that trial counsel‘s failure to call Dacosta would undermine the Court‘s confidence in the outcome of the trial. As explained below, we agree.
During her interview with the defense investigator, Dacosta stated that the truck she saw leaving the restaurant that was approximately fifteen to twenty feet away from Artistic Doors, the business where the Jeep was found, appeared to be the Cheyenne, although she described a truck that did not precisely match its description. She stated that the truck she saw had a tailgate with silver stripes on the top and bottom of the Chevrolet logo, which was written in silver in the middle of the tailgate. She also stated that she did not recall the truck she had seen having a black tonneau. The Cheyenne did not have silver stripes and had a black tonneau.
At the evidentiary hearing, Dacosta testified that she could not describe the front of the truck because she only saw it for a moment and was not paying much attention. She did pay attention to the tailgate area because the truck hurriedly
Trial counsel testified at the evidentiary hearing that he felt Dacosta‘s testimony would be not helpful at worst and confusing at best because she initially identified the truck as the Cheyenne, but described it differently, and trial counsel felt that the jury would perceive that counsel was “grasping at straws” if he argued this was the alleged second red truck. Thus, the record demonstrates that trial counsel considered Dacosta‘s potential testimony, which, as shown above, was not altogether clear or confident either before the trial or at the evidentiary hearing, and chose not to present it in order to preserve his credibility with the jury. Accordingly, Deparvine has failed to demonstrate that trial counsel‘s performance was deficient because trial counsel considered alternative courses and ultimately
The record also demonstrates that, had Dacosta testified, it was improbable that the fairness and reliability of the proceedings would have been affected to such a degree as to undermine this Court‘s confidence in the verdict. See Ferrell, 29 So. 3d at 969. Dacosta could not identify with any specificity the appearance of the individual in the truck and wavered on her recollection of what the truck actually looked like. For instance, as noted above, she described it as more orange or orange-red than red. Further, as suggested by trial counsel, it would appear that he was “grasping at straws” by presenting the argument that the individual in a red truck—the true culprit—returned to the area to dispose of evidence or drop the I.D. card found next to the Jeep as a red herring more than two hours after the Jeep was seen parked at Artistic Doors and then hurriedly pulled out of a nearby restaurant‘s parking lot onto the highway. Accordingly, we affirm the postconviction court‘s order denying relief on this claim.
C. Failure to Effectively Argue for Judgment of Acquittal on the “Armed Carjacking” Charge After the State‘s Case-in-Chief.
In this claim, Deparvine alleges that trial counsel was ineffective for failing to make the following arguments during the motion for judgment of acquittal: (A) the State misrepresented the timeline of events; (B) the Jeep was not the object of the armed carjacking charge and the truck could not have been carjacked under
Trial counsel argued for judgment of acquittal at trial as follows: (1) there is no evidence that there was a continuous series of events; (2) there is no evidence showing how the Van Dusens were separated from the red truck and no evidence the separation occurred as a result of force, violence, assault, or being placed in fear; (3) there is no evidence that either vehicle was taken from the person or custody of the Van Dusens; and (4) the State failed to describe which vehicle was the object of the carjacking in the indictment. Thus, trial counsel specifically advanced arguments regarding sub-issues A and B and raised virtually the same argument raised in sub-issue C—trial counsel did not argue that the Jeep could not be the subject of the carjacking because the State argued pretrial it was the Cheyenne, but he did argue that the State failed to specify which vehicle was the subject of the carjacking in the indictment and he argued that the State failed to prove either scenario. Regarding these sub-issues, Deparvine has failed to
With respect to sub-issue D, this Court held on direct appeal that the State clearly advanced and argued the theory that the Cheyenne was the object of the carjacking charge. Id. at 374-75 (“We also reject Deparvine‘s contention that the State contended that the Jeep, not the truck, was the subject of the carjacking charge in count five. The State did not argue to the jury that the Jeep was the subject of the carjacking.“). Further, Deparvine was convicted of one count of carjacking the Cheyenne. Thus, it is unclear how trial counsel‘s performance was deficient by failing to raise an argument for acquittal on a nonexistent charge or how trial counsel‘s allegedly deficient performance resulted in prejudice. Accordingly, we find that Deparvine has failed to demonstrate deficient performance.
Deparvine also contends that trial counsel was ineffective because his failure to challenge the indictment prior to trial on this basis relied on an unreasonable and outdated legal theory. At the evidentiary hearing, trial counsel testified that he
Deparvine has also failed to demonstrate how trial counsel‘s deficient performance prejudiced him. Had trial counsel filed a bill of particulars to clarify
D. Failure to Impeach Paul Lanier.
In this claim, Deparvine alleges that trial counsel provided ineffective assistance of counsel for the following five reasons: (1) failure to rebut and impeach Paul Lanier on his claim that he followed Deparvine and Rick to Rick‘s home; (2) failure to present evidence that Lanier never made an offer of $13,000 to purchase the Van Dusens’ truck; (3) failure to present evidence that Lanier was actually at the Van Dusens’ home on Tuesday, November 18, 2003, and Sunday, November 23, 2003; (4) failure to call Assunta Fisher, Lanier‘s girlfriend, to refute Lanier‘s claim that the Van Dusens were still at home as late as 6:00 p.m. on Tuesday, November 25, 2003; and (5) failure to adequately impeach Lanier for his false representation of his educational background. The postconviction court found that Deparvine failed to demonstrate deficient performance or prejudice on each claim. For the following reasons, we affirm the postconviction court‘s denial of relief on each claim.
1. Failure to Rebut and Impeach Lanier on his Claim That he Followed Deparvine and Rick to the Van Dusens’ Home.
Deparvine alleges that trial counsel was ineffective for failing to impeach Lanier on his testimony at trial that he saw Deparvine driving the Cheyenne with Rick in the passenger seat approximately a week before the murders occurred. The State called Lanier as a witness at trial so that he could refute Deparvine‘s claim that he test-drove the Cheyenne on Sunday, which is when it ran out of gas, Deparvine cut his finger, and blood got on the steering wheel of the Jeep as he drove the Jeep back to the Van Dusens’ home. According to Deparvine, both Sergeant Harry Hoover and Fisher should have been called to impeach Lanier because both would have testified that Lanier only visited the Van Dusens’ home on Sunday, November 23, 2003, and he only stopped at the house because he saw the Cheyenne in the driveway. As explained below, we affirm the postconviction court‘s denial of relief on this claim.
At trial, Paul Lanier testified that about a week before the murders he met Deparvine and Rick as they returned from a test drive of the Cheyenne. He also testified that he saw Deparvine driving the Cheyenne with Rick as his passenger on Tuesday, November 18, 2003. On cross-examination, trial counsel impeached Lanier‘s testimony by noting that: (1) Lanier had fourteen prior felony convictions instead of the thirteen he claimed he had while testifying on direct examination, (2) he was on probation for burglary and providing a false name to law
At the evidentiary hearing, Lanier testified that he visited the Van Dusens’ home a total of two times during the week before and the week of Thanksgiving in 2003. He believed the first visit was on a weekend, and it occurred because the Van Dusens were selling their home and he saw Rick waxing the Cheyenne. Lanier then stated that he visited the Van Dusens the Tuesday after the previous visit, which was on a Sunday, after seeing the Cheyenne traveling north as he was traveling south. Rick was sitting in the passenger side and Deparvine was driving. Lanier then followed the Cheyenne, but the Cheyenne accelerated as if its horsepower were being tested. He eventually drove to the Van Dusens’ home
Lanier‘s girlfriend, Assunta Fisher also testified at the evidentiary hearing. She stated that she could not recall the exact dates she visited the Van Dusens’ home, but that she knew they were two days apart. After her memory was refreshed by use of her pretrial deposition, Fisher testified that the two dates she visited were Sunday, November 23, 2003, and Tuesday, November 25, 2003. She testified that she could not recall the Cheyenne being driven. However, she testified that the individual that was at the Van Dusens’ home looked similar to Deparvine and acted “like it was a problem” that Lanier was interested in purchasing the Cheyenne.
Trial counsel testified at the evidentiary hearing that Lanier‘s testimony at trial was important because it placed Deparvine at the Van Dusens’ home and he saw Rick driving the Cheyenne back to the house with Deparvine as his passenger. He felt that Lanier‘s testimony, regardless of when he supposedly saw the test
We find that trial counsel‘s performance was not deficient or prejudicial. First, as noted previously, there is a strong presumption that trial counsel‘s performance was not ineffective. See Strickland, 466 U.S. at 690. Trial counsel impeached Lanier multiple times, including with Sergeant Hoover‘s testimony establishing that Lanier only mentioned one visit to the Van Dusens’ home, which occurred on a Sunday, and never mentioned seeing Deparvine driving the Cheyenne. Further, Fisher‘s testimony does establish that Lanier did not visit the Van Dusens’ home other than on Sunday and Tuesday, but she also testified that she could not recall whether she saw Deparvine driving the Cheyenne and that an individual matching Deparvine‘s description seemed upset at the possibility that Lanier would purchase the vehicle. Thus, trial counsel‘s performance was not deficient. Likewise, because Sergeant Hoover‘s testimony and other forms of impeachment already weakened the effect of Lanier‘s testimony, trial counsel‘s failure to call Fisher as a witness does not undermine this Court‘s confidence in the outcome of the proceedings.
2. Failure to Present Evidence That Lanier Never Made an Offer of $13,000 to Purchase the Van Dusens’ Truck.
Deparvine alleges that trial counsel was ineffective for failing to impeach Lanier on his claim that he offered to purchase the Cheyenne for $13,000.
At trial, Lanier testified that he made an offer for the Cheyenne‘s asking price, $13,000, but told Rick that he needed about a week to get the cash together. Deparvine also testified at trial that Rick told him that Lanier had offered to pay the full asking price in cash. Fisher testified at the evidentiary hearing that no deal had been made, but that Lanier did offer to pay the full price or near the full price for the Cheyenne. However, Lanier stated that he needed time to get the cash. Further, as noted previously, trial counsel impeached Lanier in several different manners. Accordingly, Deparvine has failed to demonstrate how trial counsel‘s performance was deficient. Indeed, Deparvine corroborated the accuracy of Lanier‘s testimony.
Trial counsel‘s failure to present this evidence was also not prejudicial. As stated above, trial counsel impeached Lanier in several ways, Fisher would have corroborated Lanier‘s testimony, and Deparvine himself corroborated Lanier‘s testimony at trial.
Deparvine alleges that trial counsel was ineffective for failure to present evidence that Lanier visited the Van Dusens’ home on Tuesday, November 18, 2003, and Sunday, November 23, 2003, rather than on Sunday, November 23, 2003, and Tuesday, November 25, 2003. According to Deparvine, trial counsel should have let stand Lanier‘s testimony at trial regarding the November 18 date—where he observed Deparvine driving the Cheyenne instead of the Jeep—because it did not inculpate Deparvine. Further, had Fisher testified, she would have established that Deparvine was at the home on November 23, 2003, because she saw the Cheyenne in the Van Dusens’ driveway, and her testimony would have negated Lanier‘s testimony indicating that he saw Deparvine driving the Cheyenne. Deparvine alleges that this impeachment is crucial because it would have eliminated the suggestion that Deparvine did not get blood on the steering wheel. We affirm the postconviction court‘s denial of relief on this claim.
At the evidentiary hearing, Fisher stated that she went to the Van Dusens’ home on two occasions, a couple of days apart. Indeed, she testified that she visited the Van Dusens’ home on Sunday and Tuesday before Thanksgiving. She also testified that she did not recall seeing anyone driving the Cheyenne, but noticed that the man at the Van Dusens’ home on Sunday acted strangely when Lanier indicated an interest in the truck. Thus, Deparvine has failed to overcome
First, Fisher‘s testimony would have placed Lanier at the Van Dusens’ home on both Sunday, November 23, 2003, and Tuesday, November 25, 2003, but not on November 18, 2003. Second, Fisher did not deny having seen anyone driving the Cheyenne, but only testified that she did not recall seeing anyone driving it. This testimony would not have corroborated or impeached Lanier‘s testimony—the jury could have believed that Lanier was simply forgetting the dates. Third, Fisher would have established that Deparvine, who testified that he was at the Van Dusens’ home on Sunday, seemed to have an issue with Lanier‘s interest in the truck. And fourth, Lanier‘s testimony was already extensively impeached, including with Sergeant Hoover‘s testimony establishing that Lanier never mentioned any other visits besides the Sunday visit and that he never mentioned seeing anyone driving the Cheyenne. Accordingly, Deparvine has failed to demonstrate how trial counsel‘s performance was deficient or how trial counsel‘s
4. Failure to Call Fisher to Refute Lanier‘s Claim That the Van Dusens Were Still at Home as Late as 6:00 p.m. on Tuesday, November 25, 2003.
Deparvine alleges that trial counsel was ineffective for failure to call Fisher to establish that the Van Dusens were not at home as late as 6:00 p.m. on the date of the murders. As discussed previously, evidence in the form of cell phone records introduced by the State demonstrated that the Van Dusens left the Tierra Verde area, where their home was located, around 5:30 p.m. and arrived in the downtown St. Petersburg area, where Deparvine lived, around 5:50 p.m. In addition, cell phone records established that the Van Dusens were traveling north between 5:54 p.m. and 6:37 p.m. At this time, the Van Dusens were near Oldsmar. Further, the State called Chris Coviello, a neighbor of the Van Dusens, to testify that the Van Dusens left their home between 5:15 p.m. and 5:45 p.m. Thus, Fisher‘s testimony was unnecessary to establish that Lanier‘s testimony was inaccurate. Accordingly, Deparvine has failed to demonstrate how trial counsel‘s performance was deficient or how this deficiency resulted in prejudice.
5. Failure to Adequately Impeach Lanier for his False Representation of his Educational Background
Deparvine alleges that trial counsel was ineffective for failure to adequately impeach Lanier on his claim that he graduated from the University of South
During cross-examination of Lanier, trial counsel attempted to introduce the USF‘s registrar‘s notarized document, but the request to introduce the document as self-authenticating was denied. However, at the beginning of Deparvine‘s defense, trial counsel had the document admitted into evidence as Defense Exhibit 4. Thus, it was available to the jury. In addition, trial counsel testified at the evidentiary hearing that he did not discuss the document during closing arguments because he perceived that there were more important issues to discuss and because the jury ultimately could review the document during its deliberations. Accordingly, Deparvine has failed to demonstrate deficient performance because the document impeaching Lanier was admitted into evidence and trial counsel strategically chose to pursue other arguments during closing arguments.
Likewise, Deparvine has failed to demonstrate prejudice. Trial counsel heavily impeached Lanier‘s testimony during cross-examination and through the testimony of Sergeant Hoover. Trial counsel‘s alleged failure to adequately impeach Lanier on his educational background does not undermine this Court‘s
E. Failure to Present Evidence and Argument that Rick Van Dusen did not Reject a $15,000 Bid at Auction and for Failure to Challenge Stuart Myers on his Testimony That Van Dusen Set a Reserve Price of $17,000.
Deparvine alleges that trial counsel was ineffective for failing to argue that Rick did not reject a $15,000 bid at auction by setting a reserve price of $17,000 and for failure to challenge Stuart Myers on his testimony that Rick set a reserve price of $17,000. Further, trial counsel was ineffective for failing to present evidence and argument that the auction documents listed a reserve price of $1,700, and that if the $1,700 price was a typographical error, trial counsel should have objected to the document‘s introduction on the basis of unreliability. According to Deparvine, had trial counsel raised these arguments, the evidence would not have refuted Deparvine‘s claim that he purchased the Cheyenne for $6,500. The postconviction court found that Deparvine failed to overcome the strong presumption that trial counsel‘s performance was not ineffective. We agree.
At trial, evidence demonstrated that Rick placed the Cheyenne for sale at auction in March 2003. The record shows that trial counsel objected several times to the introduction of documents demonstrating that Rick set a reserve price of $17,000 at auction. Over his objection, however, the documents and testimony were admitted into evidence showing that the reserve price was $17,000 and the
Trial counsel was also not deficient for failing to argue that Rick did not “reject” the $15,000 bid at the auction. Trial counsel testified that he did not think to object because the term “reject” was simply a manner of speech and that the jury ultimately understood the significance of the information. Further, as trial counsel noted, it can be inferred from the setting of a reserve price at $17,000 that Rick did not want to sell the truck for less than $17,000. In short, the same damaging information would have been established if the correct terminology was used—only a few months earlier, Rick believed his truck was worth at least $17,000, which is significantly higher than the alleged $6,500 purchase price. Thus, Deparvine has also failed to demonstrate how trial counsel‘s failure to object to the State‘s argument that Rick “rejected” a $15,000 bid prejudiced Deparvine. Accordingly, we affirm the postconviction court‘s denial of relief on this claim.
F. Failure to Challenge Billie Ferris on the Accuracy of her Recollection of Karla Van Dusen‘s Statements.
Deparvine alleges that trial counsel provided ineffective assistance by failing to challenge Ferris on her recollection of her conversation with Karla on the night
First, although the postconviction court did not rule on whether trial counsel was ineffective for failing to object to the alleged leading question, it is evident that the State‘s direct examination was not in the form of a leading question. The State asked, “Did Karla Van Dusen tell you how the guy was going to pay for the truck that night?” Ferris answered, “She said he‘s got cash.” Thus, this question did not suggest the answer to Ferris. Further, the question could not be answered by a mere “yes” or “no.” Trial counsel cannot be ineffective for failing to pursue meritless arguments. See Owen v. State, 986 So. 2d 534, 543 (Fla. 2008) (citing Melendez v. State, 612 So. 2d 1366, 1369 (Fla. 1992)).
Second, the record demonstrates that trial counsel made a strategic decision to not aggressively impeach Ferris.8 Trial counsel testified at the evidentiary hearing that he believed that other things, like Ferris’ statement that they were following Deparvine, were more important to discuss because they contradicted Deparvine‘s assertion that he stayed in his apartment while the Van Dusens left in a second red truck. He further testified that he chose not to challenge her memory after she suffered a stroke shortly before trial because he felt they would use her prior consistent statements and have Sergeant Hoover repeat his testimony regarding what she told him shortly after the murders. Further, he testified that he did not want to appear mean or even suggest that she was lying because she already had the sympathy of the jury because she was Karla‘s mother. Accordingly, trial counsel‘s performance was not deficient because he strategically chose not to impeach Ferris during cross-examination, which was reasonable under the norms of professional conduct. See Derrick, 983 So. 2d at 460-61.G. Failure to Object to Hearsay Testimony by Billie Ferris or Failure to Emphasize the Exculpatory Elements of the Testimony.
Deparvine again alleges, albeit in different fashion, that trial counsel provided ineffective assistance of counsel in dealing with Ferris’ testimony. His argument here is that trial counsel should have argued to the jury that the phone call between Karla and Ferris occurred as they were driving around the block to complete the sale of the truck in the back parking lot of Deparvine‘s apartment. This claim is claim 17 in the postconviction motion. Deparvine, however, did not raise this specific argument below. In claim 17 below, Deparvine argued that trial counsel should have argued that Ferris’ use of “bought” was consistent with the sale being complete at the beginning of that phone call—the postconviction court found that Deparvine failed to demonstrate prejudice on this claim, citing the same reasons as discussed above in the previous claim. Accordingly, this issue was not preserved for appellate review because it was not raised in his postconviction motion. Wickham v. State, 124 So. 3d 841, 853 (Fla. 2013) (citing Green v. State, 975 So. 2d 1090, 1104 (Fla. 2008), and Henyard v. State, 883 So. 2d 753, 759 (Fla. 2004)).
Further, despite the title of the claim, Deparvine has not advanced an argument that trial counsel failed to “preserve harmful error” analysis by objecting to the introduction of Ferris’ statements. “The purpose of an appellate brief is to present arguments in support of the points on appeal . . . [and] to merely refer to arguments presented during the postconviction proceedings without further elucidation is not sufficient to preserve issues.” Sexton v. State, 997 So. 2d 1073, 1086 n.14 (Fla. 2008) (quoting Doorbal v. State, 983 So. 2d 464, 482 (Fla. 2008)). Even if the issue had been preserved, Deparvine has failed to prove counsel was ineffective for failing to object or preserve harmless error because trial counsel did object to the introduction of this testimony on several occasions9 and this Court held on direct appeal that the postconviction court erred in ruling certain portions of Ferris’ testimony admissible.
Further, Deparvine has failed to preserve the argument that trial counsel was ineffective for failing to argue the exculpatory elements of Ferris’ testimony. Even if this issue was fully preserved, trial counsel was not ineffective for failing to
In addition, trial counsel‘s failure to advance this argument did not affect the fairness and reliability of the proceeding so as to undermine this Court‘s confidence in the outcome. See Ferrell, 29 So. 3d at 969. As discussed above, trial counsel argued that Ferris’ memory was inaccurate, the phone records were incorrect, and that the sale had been completed. Further, the jury was presented with Deparvine‘s testimony that the sale only took approximately five minutes and that the Van Dusens left with an individual in a second red truck. The jury rejected this argument. Accordingly, this Court‘s confidence in the verdict is not undermined by the failure to make this argument at trial.
H. Failure to Fully Develop Evidence and Cross-Examine Peter Wilson.
Deparvine alleges that trial counsel was ineffective when he failed to develop evidence and cross-examine Peter Wilson, who testified that he spent a good portion of time on the day of the murders with Rick inside the Jeep, but did not see any bloodstains on the steering wheel. The postconviction court found that Deparvine did not demonstrate deficient performance or prejudice and we affirm the denial of relief on this claim.
The evidence at trial established that at least six bloodstains on the steering wheel matched Deparvine‘s DNA. Wilson‘s testimony at trial established that he
During closing arguments, trial counsel argued that the presence of Deparvine‘s DNA in the truck was circumstantial evidence because the State could only prove its existence, but not how or when it got there. Further, he asked the jury to ponder why Deparvine‘s blood was not present anywhere else in the vehicle. He then showed the jury the photographs the State entered into evidence and noted that the jury would not be able to see anything on the steering wheel. He also argued that this lack of visual evidence of blood indicated that it was likely a small amount that nobody noticed between Sunday and the day of the murders.
Trial counsel explained his rationale for not cross-examining Wilson at the evidentiary hearing. He stated that he did not want to cross-examine a witness without having anything to ask, anything to “jam them on,” or “nothing to mitigate
As noted above, although trial counsel did not cross-examine Wilson, trial counsel did actually develop evidence and argument regarding the visibility of bloodstains at trial. Further, he explained that he purposely chose not to cross-examine Wilson because his cross-examination would have little substance and would ultimately result in the repetition of damaging testimony. In short, he chose to limit Wilson‘s damaging testimony to direct examination only and rebut or attempt to mitigate this damaging testimony during closing arguments. Based on the record, trial counsel considered and rejected alternative courses, and counsel‘s decision was reasonable under the norms of professional conduct. Accordingly, trial counsel‘s performance was not deficient. See Derrick, 983 So. 2d at 460-61.
Likewise, trial counsel‘s failure to cross-examine Wilson would not undermine this Court‘s confidence in the outcome of the trial. As discussed above, trial counsel did not cross-examine Wilson, but did emphasize during closing arguments that the State‘s evidence showed that the bloodstains would not have been noticeable by anyone from Sunday to Tuesday. Accordingly, Deparvine has
I. Failure to Call Paul Dombrowski, Nicholas Klein, and Bill Jamison‘s Wife as Defense Witnesses Concerning Deparvine‘s Wristwatch.
Deparvine alleges that trial counsel was ineffective for failing to call Paul Dombrowski, Nicholas Klein, and Bill Jamison‘s wife as witnesses to establish that Deparvine owned a Rolex watch. The postconviction court found that trial counsel made a strategic decision not to call these witnesses and that because Dombrowski‘s and Klein‘s testimony lacked credibility, this Court‘s confidence in the verdict would not be undermined. For the following reasons, we agree and affirm the postconviction court‘s denial of relief on this claim.
Trial counsel testified at the evidentiary hearing that he chose not to call Klein because he felt Klein would not have been helpful. On cross-examination at the evidentiary hearing, Klein testified that he told the defense investigator that Deparvine was paid by inmates for law clerk services with cash, had never heard of him being paid with a Rolex, and had never seen him with a Rolex. Indeed, Klein testified that Deparvine owned a gold-colored watch, but could not corroborate whether Deparvine owned a Rolex, whether the watch had jewels, or indicate the color of the face of the watch. Trial counsel considered the possibility of calling Klein as a witness, but ultimately chose not to because Klein could not corroborate whether Deparvine owned a Rolex. Accordingly, trial counsel‘s performance was
Regarding Dombrowski, trial counsel testified that he chose not to call him because he felt he would be a horrible witness, did not remember any specific details about the watch, and indicated that he would not want to reveal how many prior convictions he had. At the evidentiary hearing, Dombrowski testified that prior to the day he was available to testify, he could only tell trial counsel that Deparvine had a nice watch, but remembered the watch the night before because he was flipping through a magazine and found an advertisement for a Rolex watch that matched Deparvine‘s. He was unable to inform trial counsel that his memory
Regarding Jamison‘s wife, Jamison was a terminally ill inmate whom Deparvine had befriended and allegedly gave Deparvine the Rolex watch. Deparvine only alleges that she should have been called if Klein and Dombrowski
J. Failure to Request a Limiting Jury Instruction Addressing the Voluntariness of the Van Dusens’ Association with Deparvine.
Deparvine alleges that trial counsel was ineffective when he failed to seek a jury instruction or argue to the jury that there was no evidence Deparvine forced the Van Dusens to go to Hillsborough County and remain there for hours until their deaths. According to Deparvine, the absence of evidence of kidnapping lessens the impact of the State‘s scenarios given the gap of time between the Van Dusens’ arrival in Oldsmar and the approximate times of their deaths. The postconviction court found that Deparvine failed to establish either deficient performance or prejudice. For the following reasons, we agree.
Trial counsel cannot be deemed ineffective for failing to raise a meritless claim. Simmons, 105 So. 3d at 495 (citing Owen, 986 So. 2d at 543). As the
K. Failure to Challenge Henry Sullivan‘s Claim That He Lost His Florida Identification Card in June 2003.
Deparvine alleges that trial counsel was ineffective for failure to challenge Henry Sullivan‘s claim that he lost his Florida I.D. card in June 2003. Specifically, Deparvine alleges that skillful utilization of the timing of Sullivan‘s brother‘s visit, which occurred around October 2002, would have contributed to a reasonable doubt that Deparvine was the only person likely to have come into possession of Sullivan‘s lost I.D. card, which was found on the ground next to the Jeep on the
At trial, Sullivan testified that his brother visited him in October 2002. After the visit, Sullivan replaced his I.D. card. The issue date of the I.D. found at the scene was November 26, 2002. Sullivan testified that he again lost his I.D., and obtained another new one somewhere around June 2003. Ava Nowak from the Florida Department of Highway Safety and Motor Vehicles (DMV) testified that Sullivan obtained a new I.D. card on August 5, 2003. Frank Crane, who managed a hotel from May 9, 2003, to June 30, 2003, testified at trial that Sullivan and Deparvine rented rooms at the same time. Thus, it is unclear how any argument could have been persuasively made to raise the possibility that the November 26, 2002, I.D. card was the one that went missing when Sullivan‘s brother visited him around October 2002 and Sullivan testified that he noticed his I.D. was missing in June 2003. Further, although not testifying regarding this claim, trial counsel testified at the evidentiary hearing that the less said about the I.D. card the better because “the suggesting that it was this remarkable coincidence that these people were, in fact, killed or kidnapped or whatever they were, murdered or robbed by someone who used to live in Mr. Deparvine‘s apartment house [. . .] [s]omeone totally unconnected to the Van Dusens I felt would have been a ludicrous defense
L. Failure to Present Evidence and Argument That the Detectives Failed to Conduct a Proper Investigation.
Deparvine alleges that trial counsel was ineffective for failing to develop the evidence and present to the jury the fact that the investigation was fatally flawed because detectives focused solely on Deparvine and failed to follow up on other leads in the case. For instance: (1) there was no evidence that detectives searched the DMV‘s records for trucks of similar vintage and body style in the area; (2) the driver of the second vintage red truck was selling a Jeep that Rick wanted to look at, but there was no evidence that detectives made any effort to locate the seller of that Jeep; (3) because a neighbor heard Karla‘s voice on the night of the murders, reasonable investigators would have conducted a search of the victims’ home specifically to look for the missing cash, but such search was not conducted; and (4) the detectives never told Deparvine why he was arrested or that they found blood on the steering wheel. The postconviction court found that trial counsel‘s
At the evidentiary hearing, Sergeant Hoover indicated that the investigation involved checking registrations to determine how many red trucks were registered in Florida, and that none of Deparvine‘s neighbors or individuals questioned at traffic surveys near Artistic Doors confirmed seeing a second red pickup truck. The traffic surveys and questioning of individuals who lived near Artistic Doors and where the bodies were found did not focus on Deparvine. During the interviews with Deparvine, Sergeant Hoover became suspicious because Deparvine described the man in the second red truck as similar to himself in age, build, facial hair, and aviator sunglasses, which Sergeant Hoover believed was preparation of a cover story. Deparvine also declined to come to the police department to help with a sketch of the man in the second red truck.
Sergeant Hoover also testified that law enforcement conducted a thorough search of the Van Dusens’ home and did not find any cash. Also, bank records did not show any cash deposits. Further, trial counsel cross-examined Sergeant Hoover on the circumstances of the alleged test drive. Deparvine testified at trial that he returned to the Van Dusens’ house to retrieve a gas can and then Rick and he drove the Jeep back to the Cheyenne. Sergeant Hoover testified that in prior
At trial, the evidence also showed that law enforcement did not solely focus on Deparvine during the investigation. For instance, law enforcement executed a search warrant for Sullivan‘s home wherein two guns (a silver Bryco nine-millimeter and an Intertec nine-millimeter) and a knife with unique features were found. Erika Henderson, firearms laboratory analyst, testified that the casing recovered from the ground where Karla lay, the casing recovered from the floor board of the Jeep, and the bullets retrieved from Rick‘s and Karla‘s heads during the autopsy were all fired from the same gun. However, Henderson concluded that the casings were not fired from a Bryco nine-millimeter and could not render any conclusive findings on the Intertec nine-millimeter because the gun was broken.
Trial counsel also testified at the evidentiary hearing, albeit discussing the fingerprint on the I.D. card, that he did not think arguing to the jury regarding the effectiveness of the investigation was typically a good argument unless the investigation was particularly poorly done or there was evidence that the defendant was framed. He then stated that this case was not an example of particularly poor investigative work. Thus, given trial counsel‘s testimony that he did cross-examine Sergeant Hoover regarding Deparvine‘s blood and that the details provided by Deparvine could not be corroborated, Deparvine has failed to
M. Failure to Effectively Investigate and Introduce Evidence at Trial Regarding Fingerprints on an I.D. Card Found at the Scene of the Murder.
Deparvine alleges that trial counsel was ineffective for failure to effectively investigate and introduce evidence at trial regarding fingerprints on the I.D. card found next to the Jeep. Deparvine contends that effective investigation, which revealed that the print belonged to Deputy Poore, one of the deputies who handled the I.D. card at the crime scene, would have established a problem with the sanctity of the evidence and raised a reasonable doubt in the minds of the jury. The postconviction court found that trial counsel considered the defense of a shoddy investigation as well as the defense of an unknown print belonging to the real killer and strategically opted for the latter. Thus, the postconviction court concluded that trial counsel made a reasonable tactical decision in not submitting the identifiable latent print for further identification. Further, the court noted that Deparvine failed to establish prejudice. We agree.
At trial, chief forensic print analyst Mary Ellen Holmberg testified that she analyzed the print lifted off Sullivan‘s I.D. card, but it did not match that of Deparvine. At the evidentiary hearing, the current chief forensic print analyst of
Trial counsel testified at the evidentiary hearing that he considered that perhaps the unidentified print showed that the investigation was not handled well, but that he did not know it was a deputy‘s fingerprint at the time of the trial. However, he did not want to test the print against those of officers because he was probably as “happy as I was going to get with the fact that we had an apparently potentially important piece of evidence that had an unidentifiable print on it that wasn‘t Mr. Deparvine‘s” and “it was more valuable to have an unknown print” rather than “proving they didn‘t do a good investigation.” Further, he stated, “[I]t‘s not clear to me how proving that that was Deputy Poore‘s fingerprint helps Mr. Deparvine” because it would show that it was not the “crooks” or the “bad guys” but actually a deputy‘s print. He reasoned that the unknown print argument
He also disagreed with postconviction counsel‘s assertion that there were other mystery prints on the I.D. card, stating that the other prints were of no value for comparison purposes and were only evidence that someone touched the card. When asked directly whether knowledge that the print belonged to Poore would help challenge the sanctity of the evidence, trial counsel responded:
My belief at the time and my belief now was that the less said about that card the better because I felt that for various and sundry reasons it was probably some of the most damaging evidence against Mr. Deparvine. I felt that given the big picture it was . . . the suggesting that it was this remarkable coincidence that these people were, in fact, killed or kidnapped or whatever they were, murdered or robbed by someone who used to live in Mr. Deparvine‘s apartment house. Someone totally unconnected to the Van Dusens I felt would have been a ludicrous defense or proposition to pursue.
Finally, he stated, “And no, I don‘t think to challenge the way that card had been handled by police would have translated to how they handled the DNA evidence or anything else directly.” Thus, the record demonstrates that trial counsel considered the possible defense of shoddy investigation, but opted to argue that the unidentified latent print of value belonged to the real killer. Accordingly, trial counsel‘s performance cannot be deemed deficient because he made a tactical decision. See Derrick, 983 So. 2d at 460-61.
Deparvine also raised, as a subclaim, the argument that the State violated Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. U.S., 405 U.S. 150 (1972), by failing to provide this exculpatory evidence and knowingly presenting or failing to correct testimony known to be false. Deparvine, however, failed to raise this claim until closing arguments. Thus, the postconviction court properly found that the claims were procedurally barred because they were insufficiently pled. See Darling v. State, 966 So. 2d 366, 379 (Fla. 2007) (holding that trial court properly summarily denied claim that was only raised in written closing argument after the conclusion of the evidentiary hearing).
Deparvine alleges that trial counsel was ineffective for failing to have undertaken the task of monitoring the status of the Cheyenne, which was sold by the Van Dusens’ estate prior to the completion of Deparvine‘s Spencer hearing10 and judgment and sentence. Further, Deparvine raised a due process claim in closing arguments alleging the State improvidently relinquished control of the Cheyenne without notice or hearing. The postconviction court denied relief on these claims. For the following reasons, we affirm the denial of relief.
1. Ineffective Assistance of Counsel Claim
Deparvine argues that trial counsel was ineffective in failing to monitor the status of the Cheyenne, but also notes that the Sheriff‘s Office‘s unilateral relinquishment of control of the Cheyenne without notice or hearing suggests that trial counsel‘s efforts would have been futile. The postconviction court did not rule on the first prong of Strickland, deficient performance, finding only that no prejudice resulted from the failure to monitor the status of the Cheyenne. Even assuming trial counsel‘s failure to monitor the sale of the Cheyenne two years after the murders occurred constitutes deficient performance, Deparvine has failed to demonstrate prejudice.
Michelle Kroger, Rick‘s daughter, and beneficiary and trustee of the Van Dusens’ estate, testified for the State during the evidentiary hearing. She first learned of the role of the Cheyenne in the murders during Deparvine‘s trial and eventually viewed it as the reason Rick and Karla were murdered. Michelle did not care about procuring market value for the Cheyenne. She was seven months pregnant at the time and continued ownership of the vehicle was stalling the resolution of the estate, rather than helping the family move on. She stated that selling it on her own was not an option for her because Rick and Karla were murdered during the sale. As a result, her cousin provided assistance in obtaining minor repairs and eventually selling the Cheyenne. Michelle did not have it appraised prior to placing a $10,000 asking price on the Cheyenne. She received an offer of $9,000, but the buyer wished to make payments. She testified that she
2. Due Process Claim
Finally, Deparvine argues that the actions of the State Attorney‘s Office and Sheriff‘s Office in unilaterally disposing of the truck, critical evidence used at trial, without notice or hearing was a violation of his due process rights. This argument was not specifically raised in either the initial postconviction motion, the reply to the State‘s response to the motion, or the amended postconviction motion. Deparvine raised this specific claim for the first time in closing arguments. Thus,
We now turn to a discussion of Deparvine‘s other claims on appeal.
2. Newly Discovered Evidence
Deparvine also raised a related claim that the estate‘s sale of the Cheyenne for $6,000 constitutes newly discovered evidence that necessitates a new trial. To obtain a new trial based on newly discovered evidence, the defendant must show that evidence was not known by the trial court, the party, or counsel at the time of trial and the defendant could not have known of it by use of due diligence. The defendant must also show that the evidence is of such a nature that it would probably produce an acquittal on retrial. Johnston v. State, 27 So. 3d 11, 18-19 (Fla. 2010). To reach this conclusion, the trial court is required to consider all newly discovered evidence, if admissible, and then evaluate the weight of both the newly discovered evidence and the evidence that was admitted at trial. Jones v. State, 709 So. 2d 512, 521 (Fla. 1998). Further, the second prong is met if the newly discovered evidence weakens the case against the defendant so as to give
Here, the postconviction court did not make a finding on whether Deparvine demonstrated that the evidence was not known by the trial court, the party, or counsel at the time of trial and the defendant could not have known of it by use of due diligence. Even assuming, however, that the evidence was not discoverable through due diligence, it is evident that the potentially newly discovered evidence did not weaken the case against the defendant so as to give rise to reasonable doubt as to his culpability. As noted above, the circumstances of the estate‘s sale of the Cheyenne were entirely different than the circumstances present when the Van Dusens attempted to sell it. Further, this evidence does not minimize the importance of the DNA evidence present on the Jeep steering wheel, Ferris’ testimony that Karla was following the buyer of the Cheyenne, and the absence of any proof that the Van Dusens received a $6,500 cash payment. Accordingly, we affirm the postconviction court‘s denial of relief on this claim.
3. Constitutional Challenges
A. Execution by Lethal Injection Constitutes Cruel and Unusual Punishment.
Deparvine contends that the postconviction court erred in summarily denying his claim that Florida‘s lethal injection procedure violates the Eighth Amendment to the United States Constitution, but does not specifically request an
This Court made clear in Pardo v. State, 108 So. 3d 558, (Fla. 2012), cert. denied, 133 S. Ct. 815 (2013), in rejecting Pardo‘s constitutional challenge to the use of pentobarbital in lethal injection procedures, that to raise a successful Eighth Amendment challenge, the defendant must demonstrate that “the conditions presenting the risk must be ‘sure or very likely to cause serious illness or needless suffering,’ and give rise to ‘sufficiently imminent dangers.‘” Id. at 562 (quoting Baze v. Rees, 553 U.S. 35, 49-50 (2008) (plurality opinion (quoting Helling v. McKinney, 509 U.S. 25, 34-35 (1993)))). Further, this Court held in Pardo that in making such a challenge, the defendant cannot rely on conjecture or speculation. Pardo, 108 So. 3d at 563. Here, Deparvine does not offer any specific rationale for why the lethal injection procedures are unconstitutional, but merely alleges that Florida‘s history of “botched” executions mandates a determination that the lethal
B. Lethal Injection Procedures, Coupled with Section 945.10, Florida Statutes, Which Prohibits Deparvine From Knowing the Identity of Specified Members of the Execution Team, Violate His Constitutional Rights.
Deparvine alleges that
C. Prohibition of Juror Interviews to Determine Whether Constitutional Error Occurred Violates Constitutional Principles.
Deparvine challenges the constitutionality of rule 4-3.5(d)(4) of the Rules Regulating the Florida Bar on First, Sixth, Eighth, and Fourteenth Amendment grounds. The postconviction court summarily denied this claim. For the following reasons, we affirm.
This Court has repeatedly held that such claims are procedurally barred and rejected similar claims. In Troy, this Court held:
Rule 4-3.5(d)(4) precludes a lawyer from initiating communication with any juror concerning a trial with which the lawyer is connected, “except to determine whether a verdict may be subject to legal challenge.” Under the rule, “a lawyer may not interview jurors for this purpose unless the lawyer has reason to believe that grounds for such challenge may exist.” R. Regulating Fla. Bar 4-3.5(d)(4). Troy‘s constitutional challenge to this rule fails for two reasons. First, this claim is procedurally barred because it should have been raised on direct appeal. See Reese v. State, 14 So. 3d 913, 919 (Fla. 2009) (citing Israel v. State, 985 So. 2d 510, 522 (Fla. 2008)). Second, even if the claim was not procedurally barred, we have repeatedly rejected constitutional challenges to rule 4-3.5(d)(4). Id. (citing Barnhill v. State, 971 So. 2d 106, 117 (Fla. 2007)) (rejecting claim that rule 4-3.5(d)(4) violates a defendant‘s constitutional right of equal protection). “Furthermore, where the defendant merely complains about the ‘inability to conduct “fishing expedition” interviews,’ the claim is without merit.” Evans v. State, 995 So. 2d 933, 952 (Fla. 2008) (quoting Johnson v. State, 804 So. 2d 1218, 1225 (Fla. 2001)). Thus, Troy is not entitled to relief on this subclaim.
Id. at 841-42. As in Troy, Deparvine‘s claim is both procedurally barred because it was not raised on direct appeal and meritless. Specifically, Deparvine‘s claim amounts to nothing more than a complaint about the inability to conduct “fishing expedition” interviews. Accordingly, we affirm the postconviction court‘s summary denial of this claim.
D. Section 921.141, Florida Statutes, is Facially Vague and Overbroad in Violation of the Eighth and Fourteenth Amendments to the Constitution.
Deparvine contends that the trial court‘s instruction to the jury that its role is advisory diminished its responsibility, contrary to Caldwell v. Mississippi, 472 U.S. 320 (1985). The United States Supreme Court held in Caldwell that it is “constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant‘s death rests elsewhere.” Id. at 328-29.
For two reasons, Deparvine is not entitled to relief. First, Deparvine failed to raise this claim on direct appeal. Thus, this claim is procedurally barred. See Lukehart v. State, 70 So. 3d 503, 521-22 (Fla. 2011) (“This Court has repeatedly stated that Caldwell claims are proper on direct appeal and cannot be raised for the first time
Accordingly, we affirm the postconviction court‘s summary denial of this claim.
E. Florida‘s Capital Sentencing Statute is Unconstitutional as Applied Under the Sixth, Eighth, and Fourteenth Amendments of the Constitution.
Deparvine claims that his sentence is unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring, 536 U.S. 584, because Florida‘s capital sentencing scheme does not require that the State charge the aggravating circumstances and does not require unanimous jury findings regarding sentencing aggravating factors. The postconviction court summarily denied this claim without an evidentiary hearing. We affirm.
First, Deparvine‘s Ring claim was raised on direct appeal, which this Court rejected. See Deparvine, 995 So. 2d at 379. Thus, this claim is procedurally barred because issues raised and rejected on direct appeal cannot be relitigated in postconviction proceedings. Everett v. State, 54 So. 3d 464, 485 (Fla. 2010) (holding that Ring and Apprendi claims were procedurally barred because they were raised and rejected on direct appeal).
Accordingly, we affirm the postconviction court‘s summary denial of this claim.
Deparvine claims that Florida‘s capital sentencing scheme violates due process rights and constitutes cruel and unusual punishment on its face and as applied to him. In particular, Deparvine argues that Florida‘s death penalty statute does not ensure that defendants are not sentenced to death in an arbitrary manner. The postconviction court summarily denied this claim without an evidentiary hearing. We affirm.
This claim is procedurally barred because Deparvine should have and could have raised this claim on direct appeal. See Troy, 57 So. 3d at 844 (holding that defendant was procedurally barred from raising a claim that Florida‘s capital sentencing statute fails to prevent the arbitrary and capricious imposition of the death penalty because the claim could have and should have been raised on direct appeal) (citing Jones v. State, 928 So. 2d 1178, 1182-83 n.5 (Fla. 2006)). Further, this Court has consistently held that this claim is without merit. Suggs v. State, 923 So. 2d 419, 441 (Fla. 2005); Knight v. State, 923 So. 2d 387, 414 (Fla. 2005) (citing Provenzano v. State, 739 So. 2d 1150 (Fla. 1999), and Jones v. State, 748 So. 2d 1012 (Fla. 1999)); Hodges, 885 So. 2d at 359 n.9. Thus, we affirm the postconviction court‘s summary denial of this claim.
4. Cumulative Error
Deparvine contends that errors demonstrated in the proceedings below cumulatively entitle him to a new trial. We explained in Troy concerning cumulative error:
We have held:
Where multiple errors are discovered in the jury trial, a review of the cumulative effect of those errors is appropriate because “even though there was competent substantial evidence to support a verdict ... and even though each of the alleged errors, standing alone, could be considered harmless, the cumulative effect of such errors [may be] such as to deny to defendant the fair and impartial trial that is the inalienable right of all litigants in this state and this nation.”
McDuffie v. State, 970 So. 2d 312, 328 (Fla. 2007) (alterations in original) (quoting Brooks v. State, 918 So. 2d 181, 202 (Fla. 2005)). However, where the allegations of individual error are procedurally barred or meritless, a claim of cumulative error also fails. See Israel
[v. State, 985 So. 2d 510, 520 (Fla. 2008)] (citing Parker v. State, 904 So. 2d 370, 380 (Fla. 2005)).
Troy, 57 So. 3d at 844. Deparvine has failed to establish that any errors occurred, which, either individually or cumulatively, would entitle him to a new guilt phase trial. Accordingly, we affirm the postconviction court‘s denial of relief on all of the foregoing claims. Finally, we consider Deparvine‘s petition for a writ of habeas corpus.
II. Petition for a Writ of Habeas Corpus
Deparvine‘s petition for a writ of habeas corpus raises two claims of ineffective assistance of appellate counsel. Claims of ineffective assistance of appellate counsel are appropriately presented in a petition for a writ of habeas corpus. Wickham, 124 So. 3d at 863 (citing Valle v. Moore, 837 So. 2d 905, 907 (Fla. 2002)). The standard of review for ineffective appellate counsel claims mirrors the Strickland standard for ineffective assistance of trial counsel. Wickham, 124 So. 3d at 863. In order to grant habeas relief on ineffectiveness of appellate counsel, this Court must determine:
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.
Deparvine‘s first contention is that his conviction for carjacking the Cheyenne was a conviction for a charge never made as represented by the State in the judgment of acquittal argument. Further, Deparvine contends that a conviction based on a charge not made by indictment or information is a nullity and that this was a fundamental error that appellate counsel should have recognized and argued. Deparvine then notes that, instead, without the proper arguments and citations, this Court denied relief on direct appeal because it had not been raised in the trial court. Thus, according to Deparvine, appellate counsel was ineffective. We deny relief on this claim.
As this Court has previously noted, habeas corpus “is not a second appeal and cannot be used to litigate or relitigate issues which could have been . . . or were raised on direct appeal.” Breedlove v. Singletary, 595 So. 2d 8, 10 (Fla. 1992); see also Taylor v. State, 3 So. 3d 986, 1000 (Fla. 2009) (holding that a petitioner “cannot relitigate the merits of an issue through a habeas petition or use
Deparvine‘s second contention is that appellate counsel was ineffective for failing to argue that the Van Dusens were not in a position to exercise custody or control over the Cheyenne, which is a requirement under the carjacking statute. Deparvine contends that had this argument been raised, both the carjacking and felony murder convictions would have been reversed. This claim, however, was raised and rejected on direct appeal. Accordingly, we deny Deparvine‘s petition for a writ of habeas corpus on this claim.
On direct appeal, appellate counsel‘s initial brief did not specifically cite to the statute or artfully allege that the Van Dusens did not have custody or control of
In the reply brief, appellate counsel also contended, “The evidence does not show when or how appellant obtained possession of the truck. . . . The evidence does, however, show that the truck was not at the scene where the shooting occurred. Even under the broadest interpretation of a carjacking statute, this does not qualify.” Appellant‘s Reply Br., p. 24-25 (citing Alvarez v. State, 963 So. 2d 757, 764 (Fla. 3d DCA 2007) (“Here, . . . the victim was unaware of the theft. We conclude, as we did in that case, that under these circumstances the [L]egislature did not intend for a carjacking conviction to lie.“)). Thus, although appellate counsel did not specifically use the words “custody” or “control,” he argued that the carjacking
CONCLUSION
Based on the foregoing, we affirm the postconviction court‘s order denying postconviction relief on all claims. We also deny relief on both claims Deparvine raised in his petition for writ of habeas corpus.
It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.
CANADY, J., concurs in result.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED
An Appeal from the Circuit Court in and for Hillsborough County,
Susan G. Sexton, Judge - Case No. 04-CF000774A
And an Original Proceeding - Habeas Corpus
for Appellant/Petitioner
Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Stephen D. Ake, Assistant Attorney General, Tampa, Florida,
for Appellee/Respondent