IN THE SUPREME COURT OF FLORIDA
NO. SC00-1782
ANGEL NIEVES DIAZ, Petitioner,
v.
MICHAEL W. MOORE, ETC., Respondent.
CORRECTED PETITION FOR A WRIT OF HABEAS CORPUS
TODD G. SCHER Litigation Director Florida Bar No. 0899641 CAPITAL COLLATERAL REGIONAL COUNSEL 101 NE 3d Avenue, Suite 400 Ft. Lauderdale, Florida 33301 (904) 487-4376 Counsel for Petitioner
1 INTRODUCTION1
Mr. Diaz is a death-sentenced inmate2 who invokes this Court's jurisdiction to cure defects occurring during its prior consideration of his habeas corpus and postconviction appeal proceedings. See Diaz v. Dugger,
719 So.2d 865 (Fla. 1998). In Stephens v. State, 748 So. 2d 1028 (Fla. 1999), the Court recognized having previously applied erroneous legal standards to claims of ineffective assistance of counsel, and cited Mr. Diaz's case as one of the cases in which an erroneous standard had been utilized. Id. at 1032 n.2. Misapplication of constitutional standards is not a matter of "semantic[s]" Stephens, 748 So. 2d at 1036 (Wells, J., concurring in part and dissenting in part); the Supreme Court, for example, recently granted relief due to ineffective
1This is an original action pursuant to Fla. R. App. P. 9.100 (a). See also Art. I, § 13, Fla. Const. The Court's jurisdiction is invoked pursuant to Art. V, § 3(b)(9), Fla. Const., and Fla. R. App. P. 9.030 (a)(3). The Court also has jurisdiction to correct failings in the review process under Art. V, §§ (3)(b)(7) and (9).
2Mr. Diaz not the triggerman. See Diaz v. State, 513 So. 2d 1045, 1046 (Fla. 1987) ("One of three Spanish-speaking men shot and killed the bar manager during the December 29, 1979, holdup of a Miami bar"). Mr. Diaz and Angel Toro were originally indicted on January 25, 1984, for first-degree murder of the bar manager, armed robbery of the bar and customers, and kidnapping of the persons confined in the bathrooms, as well as the use of firearms. Toro eventually accepted a deal for a life sentence, and the state dropped several counts against Mr. Diaz, leaving one count of first-degree murder, four of kidnapping, three of armed robbery, one of attempted armed robbery, and one of use of firearm (R. 692-693). In opening statement, the prosecutor said, "there will be no evidence as to who the actual shooter of [the victim] was" (R. 788). He reiterated this concession in closing argument: "I do not believe the evidence has shown that this defendant went in there with the intention of killing anyone," and argued that the jury should convict based solely on felony murder (R. 1257-58). The sentencing order written by the prosecutor acknowledged that "[t]he evidence was conflicting as to whether the defendant was the actual triggerman" (R. 644), and that although snitch Ralph Gajus "indicated that the defendant was, in fact, the shooter," other testimony "indicated that a co-defendant was the shooter, and that the defendant was an accomplice" (Id.). On direct appeal, the Court rejected Mr. Diaz's disparate treatment and proportionality claims, although Justice Barkett wrote separately to emphasize that "if one believed that this defendant was not the actual triggerman, the proportionality argument would have merit." Diaz, 513 So. 2d at 1049 (Barkett, J., specially concurring). As explained later in this petition, Mr. Diaz's Rule 3.850 motion alleged Brady violations with respect to snitch Gajus, the only witness whose testimony could have supported the fact that Mr. Diaz was the shooter. He never received an evidentiary hearing on this issue, however.
1 assistance of counsel because the Virginia Supreme Court misapplied Strickland v. Washington, 466 U.S. 668
(1984). Williams v. Taylor, 120 S.Ct. 1495 (2000). Due to the Court's misapplication of the constitutional standard, Mr. Diaz was deprived of meaningful appellate review. Parker v. Dugger, 498 U.S. 308 (1992). The
Court must therefore revisit this case. Kennedy v. Wainwright, 483 So. 2d 424, 426 (Fla. 1986) ("It is only in the case of error that prejudicially denies fundamental constitutional rights that this Court will revisit a matter previously settled by the affirmance of a conviction or sentence").
As the Court observed, the "less deferential standard of review inescapably follows from Strickland, the seminal ineffective assistance of counsel case, as well as other decisions of the United States Supreme Court on the appropriate standard of appellate review for issues of constitutional magnitude." Stephens, 748 So. 2d at
1032. Mr. Diaz's case involved substantial allegations of ineffective assistance of counsel, notably of appellate and penalty phase counsel. The same standard of review applies to both, Smith v. Robbins, 120 S.Ct. 746, 764
(2000), and, in light of Stephens, Mr. Diaz is entitled to a full reassessment of his claims which require that habeas relief be granted, that Rule 3.850 relief be granted, and/or that an evidentiary hearing be granted before an impartial tribunal.
As to Mr. Diaz's claims of appellate counsel's ineffectiveness, the Court conducted no detailed review, simply concluding: "We also find his habeas claims to be without merit." Diaz v. Dugger, 719 So. 2d at 868.
Claims of appellate ineffectiveness require plenary detailed consideration. Wilson v. Wainwright, 474 So. 2d
1162, 1165 (Fla. 1985) (emphasis in original) ("We are convinced, as a final result of examination of the original record and appeal and of petitioner's present prayer for relief, that our confidence in the correctness and fairness of the result has been undermined"). See also Freeman v. State, 2000 WL 782622 (Fla. June 8, 2000);
Fitzpatrick v. Wainwright, 490 So. 2d 938 (Fla. 1986). The misapplication of Strickland was extremely
2 harmful as to these claims because, as noted in this petition and in Mr. Diaz's motion for rehearing3 following the affirmance, the State essentially conceded at oral argument that it could not defend appellate counsel's failure to raise clearly meritorious claims.
Moreover, in affirming the denial of Rule 3.850 relief, the Court erroneously deferred to the lower court's order;4 for example, as to Mr. Diaz's allegations that he was incompetent to stand trial and that he received constitutionally inadequate competency evaluations, the Court concluded that "the trial court addressed these claims" and that "[t]he court properly applied the law and competent and substantial evidence supports its findings. We find no error." Diaz v. Dugger, 719 So. 2d at 868. Review of the sufficiency of allegations warranting an evidentiary hearing is plenary, not deferential. See Freeman v. State, 2000 WL 728622 at *3
(Fla. June 8, 2000) (where lower court did not grant evidentiary hearing, "[w]e must examine each claim to determine if it is legally sufficient and, if so, determine whether or not the claim is refuted by the record").
Accord Gaskin v. State, 737 So. 2d 509 (Fla. 1999); Ragsdale v. State, 720 So. 2d 203 (Fla. 1998). As demonstrated below and in his briefs to the Court, Mr. Diaz's allegations were clearly sufficient to warrant an evidentiary hearing. As to the claim of ineffective assistance of penalty phase counsel--the claim on which an evidentiary hearing was granted--the Court likewise deferred to the lower court's order, finding that the court
"properly applied the law and competent and substantial evidence supports its findings." Diaz v. Dugger, 719
So. 2d at 868.5 The Court in Stephens explicitly recognized that the standard it applied in Mr. Diaz's case was
3Mr. Diaz's motion for rehearing was denied over Justice Anstead's dissent).
4Complicating this issue is that the lower court's order was written by the prosecutor, over Mr. Diaz's objection.
5The lower court's order--written by the prosecutor--made no factfindings, and simply stated: "This Court finds, after reviewing testimony of these witnesses, that the defendant has failed to establish that trial counsel
3 erroneous.
Mr. Diaz reasserts his numerous claims for relief on grounds of appellate and trial attorney ineffectiveness, as well as other due process violations such as a violation of Brady v. Maryland, 373 U.S. 83
(1963). Mr. Diaz requests that the Court take judicial notice of the pleadings and records in both the state habeas corpus and postconviction appeal proceedings. The claims, arguments, and allegations contained in these documents are expressly incorporated in this petition.
MR. DIAZ IS ENTITLED TO A NEW DIRECT APPEAL AND/OR A NEW TRIAL
In this petition Mr. Diaz alleges "specific, serious omission[s] or overt act[s]" which deprived him of the effective assistance of appellate counsel. Freeman v. State, 2000 WL 7286722 at *11 (Fla. June 8, 2000). Mr.
Diaz had the right to the effective assistance of counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387, 396
(1985). This Court's duty to review the record in capital cases "is no substitute for the careful, partisan scrutiny of a zealous advocate." Wilson v. Wainwright, 474 So.2d 1162, 1164 (Fla. 1985).
In this section of his petition, Mr. Diaz raises the most serious issues which appellate counsel failed to present on direct appeal.6 Because the constitutional violations at trial were "obvious on the record" and "leaped
provided ineffective assistance under the standards of Strickland v. Washington." Diaz v. Dugger, 719 So. 2d at 868 (quoting lower court's order). In his motion for rehearing following the Court's affirmance in his case, Mr. Diaz specifically noted that, as to the denial of the penalty phase ineffectiveness claim, "this Court simply deferred to the trial court's order denying relief, which made no factfindings at all despite the lengthy evidentiary hearing" (Motion for Rehearing at 43). See also id. at 44 ("This Court and the lower court never discussed any of the historical facts underlying Mr. Diaz's claim that counsel performed deficiently as to the penalty phase"). The rehearing petition also cited to Rose v. State, 675 So. 2d 567 (Fla. 1996), which case set forth the proper standard of review governing these claims. Stephens, 748 So. 2d at 1029.
6The direct appeal brief was 44 pages long; thus, page limits were not a problem, and no reasonable argument can be made, particularly given the nature of the constitutional deprivations that appellate counsel failed to raise, that counsel "winnowed" out weaker arguments and presented only strong ones.
4 out upon even a casual reading of transcript," it cannot be said that the "adversarial testing process worked in
[Mr. Diaz's] direct appeal." Matire v. Wainwright, 811 F. 2d 1430, 1438 (11th Cir. 1987).
1. FAILURE TO SUSPEND TRIAL PENDING COMPETENCY DETERMINATION.
Trial began on December 17, 1985. Up until opening arguments, Mr. Diaz was represented by counsel.7 After the jury was empaneled but before openings, Mr. Diaz asked, through his interpreter and his attorney, to speak to the court. At sidebar, attorney Lamons indicated that Mr. Diaz wished to represent himself (R. 765-68). The court ruled that the State would give its opening and that the court would talk to Mr. Diaz after lunch (Id.).
After the State's opening, the court inquired whether Mr. Diaz was "still desirous of representing himself" (R.
794). After a lunch break, Lamons moved for a mistrial and a competency evaluation because Mr. Diaz was exhibiting "bizarre tendencies" which had been observed both by counsel and the interpreter; the trial court denied the motion (R. 797-98). The prosecutor acknowledged that, once put on notice, the court was required to have a psychiatrist examine Mr. Diaz on an emergency basis, but reassured the court that there need be no delay in the trial since the exam could be done after the court broke for the evening. Lamons argued that the exam needed to be done immediately and argued that "I think the proceedings shall stop at this point and that determine his competency... I don't see how we can go forward and then evaluate his competency" (R. 799-80).
Without benefit of a mental evaluation, the court questioned Mr. Diaz on his desire to represent himself
(R. 801 et. seq.). After this exchange, the court advised Lamons to act as stand-by counsel and then arranged to have two psychiatrists evaluate Mr. Diaz for "competency, present competency," and report to the court the
7Mr. Diaz was initially represented by attorney Peter Ferrero, who eventually certified a conflict of interest. Attorney Robert Lamons was then appointed to represent Mr. Diaz.
5 next morning (R. 814).8 The court reaffirmed that the appointment was only for "competency to stand trial" (R.
816). The trial then proceeded without any determination of Mr. Diaz's competency with Mr. Diaz proceeding pro se.
The court forced Mr. Diaz to proceed with his opening statement, explaining to him that his opening was limited to what he believed the evidence would show, and specifically ordering that "you cannot tell them what you think, how you feel, how you are treated in this country or anything else" (R. 817). Mr. Diaz's opening is reported in approximately 4 pages of transcript (R. 819-22). The court interrupted and chastised Mr.
Diaz, telling him, "I have given you a considerable enough time to explain to the jury, even though I did tell you that this part of the case is not to do exactly what you have done" (R. 822). After the opening, the trial proceeded, with 5 critical witnesses presented before the evening break. During this time, Mr. Diaz, whose competency to stand trial was still in doubt, and whose competency to proceed without counsel would in fact never be adequately assessed, conducted his own "defense." At one point during the testimony, Mr. Diaz asked to speak to the prosecutor and judge, and told the judge "I have no objection if you permit Mr. Lamons to help me because, truthfully, I am incapable of continuing" (R. 898-900). The court, still without benefit of any mental health evaluation, concluded that Mr. Diaz was merely trying to "make a mockery out of justice" (R.
904).
The lower court's failure to halt the proceedings and to appoint counsel for purposes of determining Mr.
Diaz's competency to stand trial violated due process; appellate counsel's failure to raise this issue constituted
8As discussed later in this petition, the "hearing" on competency the following morning was unorthodox to say the least, and violated due process as well.
6 ineffective assistance of counsel. The law could not have been clearer that the trial court was required to suspend trial proceedings pending a competency determination, and that Mr. Diaz could not knowingly and intelligently waive his right to counsel while his competency was in question. In Pate v. Robinson, 383 U.S. 375
(1966), the Supreme Court held that the failure to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent violates due process. In Drope v. Missouri, 420 U.S. 162 (1975), the
Supreme Court held that a defendant's due process right to a fair trial was violated when the trial court failed to suspend a trial pending the determination of defendant's competency. The reason that pending proceedings must be suspended to address competency is clear: "it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently `waive' his right to have the court determine his capacity to stand trial." Pate,
383 U.S. at 384. The issue in Mr. Diaz's case was further complicated by the fact that the trial court allowed
Mr. Diaz to proceed pro se while his competency was disputed, and then pressured an unrepresented Mr. Diaz into "stipulating" to his competency after the evaluations were conducted. The law, emanating from Pate, is clear that "where a defendant's competence to stand trial is reasonably in question, a court may not allow that defendant to waive [his] right to counsel and proceed pro se until the issue of competency has been resolved."
United States v. Klat, 156 F.3d 1258, 1263 (D.C. Cir. 1998). It is "contradictory to conclude that a defendant whose competency is reasonably in question could nevertheless knowingly and intelligently waive [his] Sixth
Amendment right to counsel." Id. See also United States v. Purnett, 910 F.2d 51, 55 (2d Cir. 1990)
("Logically, a trial court cannot simultaneously question a defendant's mental competence to stand trial and at one and the same time be convinced that the defendant has knowingly and intelligently waived his right to counsel").
These principles applied in Florida before Mr. Diaz's direct appeal. Florida rules established that once
7 competency is an issue, "the court shall immediately enter its order setting a time for a hearing." Fla. R. Crim.
P. 3.210 (1980) (emphasis added). This Court has attached "prime significance to the words `shall' and
'immediately.'" Fowler v. State, 255 So. 2d 513, 514-15 (Fla. 1971). "The mandatory verb `shall' makes it obligatory on the court to fix a time for a hearing if there are reasonable grounds to believe that the defendant is insane. . . . Moreover, the mandatory `shall' is followed by the word `immediately,' which lends urgency and significance to the duty of the judge to conduct the required hearing." Id. at 515. In Jones v. State, 362 So.2d
1334 (Fla. 1978), the Court acknowledged the application of Pate and Drope to Florida, and granted a new trial due to this type of error.9 Appellate counsel failed to raise this clear error. There can be no reasonable tactical decision for this failure, as Drope error requires automatic reversal. Drope; Jones; Pridgen. Moreover, as noted, the error was preserved by trial counsel (R. 799-80).10 A new direct appeal and/or a new trial is warranted.
2. ABSENCES FROM CRITICAL STAGES. Throughout pretrial and trial proceedings, Mr. Diaz was involuntarily absent while important hearings relating to his case were conducted. Some of these hearings were conducted on an ex parte basis between the trial judge and the prosecutor; others were conducted in the absence of anyone from either the prosecution or the defense; still others were conducted after it is clear from the record that the trial court carefully excluded Mr. Diaz from the courtroom. What makes Mr. Diaz's involuntary
9See also Pridgen v. State, 531 So. 2d 951, 955 (Fla. 1988) ("we hold that the judge erred in declining to stay the sentencing portion of the trial for the purpose of having Pridgen reexamined by experts and holding a new hearing on his competency to continue to stand trial"); Manso v. State, 704 So. 2d 516 (Fla. 1998) (same); Finklestein v. State, 574 So. 2d 1164, 1169 (Fla. 4th DCA 1991) (assistant public defender's refusal to proceed with pretrial motions until competency evaluations conducted and hearing occurred was supported by Florida and federal law, and trial court departed from essential requirements of law when removing attorney from case for failing to proceed).
10In any event, Mr. Diaz submits that this type of error is fundamental.
8 absences most disturbing is that, for those proceedings which occurred during trial in his absence, Mr. Diaz was representing himself. None of Mr. Diaz's absences was raised on appeal, despite the fact that it is fundamental error. Carmichael v. State, 715 So. 2d 247, 250 (Fla. 1998) (Harding, J., concurring in result only) ("an error regarding a defendant's right to be present at a critical stage in a trial can be raised for the first time on appeal or in a motion for a new trial") (citing Francis v. State, 413 So. 2d 1175, 1177-79 (Fla. 1982)).
"One of the most basic of the rights guaranteed by the Confrontation Clause is the accused's right to be present in the courtroom at every stage of his trial." Illinois v. Allen, 397 U.S. 337 (1970). It is "[d]eplorable .
. . to remove a man from his own trial, even for a short time," Allen, 397 U.S. at 347, as an accused has "a right to be present at all stages of the proceedings where fundamental fairness might be thwarted by his absence."
Faretta v. California, 422 U.S. 806, 817 (1975). While the Constitution is not violated if a defendant is excluded for disruptive behavior, Allen, 397 U.S. at 343,11 absent such circumstances or a knowing, voluntary, and intelligent waiver of presence, see Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Johnson v. Zerbst, 304
U.S. 458 (1938), a defendant's involuntary absence from trial violates the Sixth and Fourteenth Amendments.
Florida law, well settled at the time of Mr. Diaz's trial and direct appeal, follows federal precedent.
Francis v. State, 413 So. 2d 1175, 1177 (Fla. 1982) (criminal defendant has "the constitutional right to be present at the stages of his trial where fundamental fairness might be thwarted by his absence"); Garcia v. State,
492 So. 2d 360, 363 (Fla. 1986) ("Appellant is correct in his assertion that he has a constitutional right to be
11There has never been any suggestion that Mr. Diaz was disruptive, thereby resulting in his presence being "waived." Illinois v. Allen, 397 U.S. 337, 343 (1970) ("a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom"); Proffitt v. Wainwright, 685 F. 2d 1227, 1258 (11th Cir. 1982) ("The state does not claim that appellant disrupted or hindered any part of his trial, however; hence such exception is inapplicable to this case").
9 present at all crucial stages of his trial where his absence might frustrate the fairness of the proceedings").
Accord Johnson v. State, 750 So. 2d 22 (Fla. 1999). Fla. R. Crim. P. 3.180 (1985), required that Mr. Diaz either be present or that a written waiver of his right to be present be executed.12 If a defendant absents himself,
Florida law likewise requires a knowing, voluntary, and intelligent waiver by either the defendant, Francis, 413
So. 2d at 1178 (defendant's absence violated constitution because "[t]he State has failed to show that Francis made a knowing and intelligent waiver of his right to be present"), or by counsel. If counsel waives the presence of the defendant, it is still invalid unless the defendant "ratifies the waiver either by examination by the trial judge, or by acquiescence to the waiver with actual or constructive knowledge of the waiver." Amazon v. State,
487 So. 2d 8, 11 (Fla. 1986). Accord Johnson, 750 So. 2d at 28 ("in the instant case, there is no record evidence of any inquiry into Johnson's understanding of his right to be present").
In this case, the State cannot show a knowing, voluntary, and intelligent waiver of presence.13 The State conceded at oral argument that the rule was violated:
JUSTICE SHAW: Let me ask you the same thing I asked defense counsel. There's a rule involved here that says that the defendant shall be present at a pretrial conference unless he waives it in writing. How does the State propose to get around that?
MS. BAGGETT: Well, he's obviously not there, and there's obviously not a written waiver, so that rule technically has been violated.
The issue is further complicated because Mr. Diaz was permitted to represent himself yet he was absent and often absented at the direction of the trial judge. The State stood before the Court and conceded it had no
12The rule provided: "In all prosecutions for crime the defendant shall be present . . . (3) At any pretrial conference; unless waived by Defendant in writing." Fla. R. Crim. P. 3.180 (a)(3) (1985).
13See Proffitt, 685 F. 2d at 1258 (the State "does not deny that appellant was neither apprised of the hearing . . . nor afforded an opportunity to assert his right to attend; hence, appellant did not knowingly or voluntarily waive his right to presence").
10 defense to this:
JUSTICE ANSTEAD: Why wasn't Diaz, if Diaz was representing himself, present?
MS. BAGGETT: I don't know the answer to that. I don't know why he was not present for this.
The State cannot show that Mr. Diaz's absences were harmless beyond a reasonable doubt, which, in the "right to be present" context, is very strict: "[w]here there is any reasonable possibility of prejudice from the defendant's absence at any stage of the proceedings, a [judgment] cannot stand." Proffitt, 685 F. 2d at 1260
(quoting United States v. Stratton, 649 F. 2d 1066, 1080 (5th Cir. 1981)). A court cannot speculate as to the probability that an involuntarily absent defendant's presence "would have made a difference." Proffitt, 685 F.
2d at 1260. See also Francis v. State, 413 So. 2d 1175, 1179 (Fla. 1982) (because court is "unable to assess the extent of prejudice, if any, [the defendant] sustained by not being present during [a critical stage], . . . [the defendant's] involuntary absence without waiver or consent or subsequent ratification was reversible error and
[the defendant] is entitled to a new trial"). a. Absence from Competency Proceedings. Not only did the lower court fail to halt the proceedings in order to have Mr. Diaz's competency to proceed evaluated, but Mr. Diaz (representing himself) was involuntarily absent during substantial proceedings about competency. "A competency hearing is . . . a critical stage" of a criminal prosecution. United States v. Klat, 156 F.3d 1258, 1262 (D.C. Cir. 1998) (citing United States v.
Byers, 740 F.2d 1104, 1109 (D.C. Cir. 1984) (en banc); Estelle v. Smith, 451 U.S. 454, 471 (1981)). In this case, the proceeding at which the "experts" appointed by the court rendered their reports was conducted ex parte. The State was not present. Mr. Diaz was not present, even though he was supposedly representing himself. Standby counsel was not present. The State conceded at the oral argument that "[N]o one was there.
None of the parties were there. Apparently the judge had a court reporter in the courtroom and took down her
11 conversation or her colloquy with the doctor." The court conducted the "proceedings" on her own. Mr. Diaz's right to an adversarial competency hearing during which he was present was violated. Pate; Drope. See also
Fowler v. State, 255 So. 2d 513, 514 (Fla. 1971) (error found because "failure of the trial judge to hold a plenary hearing on the question of competency . . . infect[ed] the whole of the pre-trial proceedings with respect to competency"). "Our constitutions, indeed the very nature of our system, do not permit events during a criminal trial which decisively affect the defendant's liberty interests to take place behind his back." Howard v.
State, 484 So. 2d 1319, 1322 (Fla. 3d DCA 1986) (Schwartz, C.J., dissenting).
After Drs. Haber and Castiello evaluated Mr. Diaz on the evening of the day trial commenced, this exchange occurred the following morning:
(Thereupon, a discussion was held off the record, after which the following proceedings were had outside the presence of the attorneys, the defendant, and the jury:)
THE COURT: For the record, the report on Angel Diaz, he is very competent.
(Thereupon, other matters were handled, after which the following proceedings were had outside the presence of the attorneys, the Defendant, and the jury:)
THE COURT: Dr. Haber, would you give me an oral on Angel Diaz, please.
DR. HABER: Angel Diaz is competent. But he did express to me that he would like some technical legal help in defending himself.
THE COURT: Did Mr. Diaz tell you that Mr. Lamons sits next to him and gives him help during the entire trial?
DR. HABER: (Thereupon, Dr. Haber shook his head.)
THE COURT: No, he did not tell you that.
The report, as I said, from Dr. Castiello is that Mr. Diaz is very competent.
DR. HABER: Yes, he is.
12 (R. 981-82) (emphasis added).
This was the competency "hearing" that was conducted in this capital case. Mr. Diaz, representing himself, was not present. Standby counsel was not present. The State was not present. One of the doctors was not present. The record is silent as to how Dr. Castiello reported his findings to the court, but the State conceded at the oral argument that "one was private, one was actually on the record." No questioning of Dr.
Haber was conducted by the court as to the evaluation, the specific criteria of Fla. R. Crim. P. 3.211, the length of the evaluation, or anything about the evaluation. No cross-examination of Dr. Haber occurred, and obviously no questioning of Dr. Castiello occurred as he was not even there.
Following the exchange with Dr. Haber, the record next reflects that the prosecutor and Mr. Lamons were present in court (but not Mr. Diaz) and the court informed them that "there was an oral report by two, a psychiatrist and a psychologist. I think the report was Mr. Diaz is very competent" (R. 982). The court never explained what really occurred. The court never disclosed that Dr. Castiello did not come to court. The court never disclosed that the experts had not addressed the criteria of Fla. R. Crim. P. 3.211. The court indicated that she was providing this information to the prosecutor and Lamons "for your own information" (R. 983). Mr.
Diaz was finally brought to court and the prosecutor stipulated to the experts' findings (R. 985). Lamons observed that "[a]s his attorney, I would stipulate" but that because Mr. Diaz is representing himself, "I do not know if I have the ability to stipulate to those reports" (R. 985). The court then told Lamons to have Mr. Diaz
"do that himself" (R. 985). After asking Mr. Diaz if he would "stipulate that the reports of the doctors are true" and that he was "competent in a mental sense" (whatever that means), Mr. Diaz said yes (R. 985-86).
This proceeding was a mockery. At no time was Mr. Diaz informed of his right to have an adversarial competency hearing. At no time was Mr. Diaz ever informed that a hearing even took place and that he had the
13 right to be present.14 The court pressured Mr. Diaz into "stipulating" to the fact that the doctors reports were
"true," yet the court did not afford Mr. Diaz notice of the "oral" reports, much less the opportunity to review the doctors' written reports before stipulating to anything. In fact, written reports had not even been prepared when this "hearing" took place (R. 985); the reports were not written until a day later.15 At the oral argument, the
State conceded that the doctors' reports "were not submitted until later in the day" and that "the record's not clear that he ever gets [copies of the reports]."
Mr. Diaz was representing himself and should have been told of his right to be present, that he had no obligation to stipulate to reports the existence of which he had never been made aware, and had the right to cross-examine the doctors. Mr. Diaz "stipulated" to reports which were not even written at the time. Because the entire proceeding took place without his knowledge or presence, Mr. Diaz had no way of knowing what had actually occurred during the ex parte interlude between the court and Dr. Haber. Mr. Diaz's right to confrontation was also violated. Davis v. Alaska, 415 U.S. 308 (1974); Douglas v. Alabama, 380 U.S. 415
(1965). Mr. Diaz's absence from the competency proceedings is per se reversible error entitling Mr. Diaz to a new trial; the State cannot show that Mr. Diaz made a knowing, voluntary, and intelligent waiver of his presence at the competency proceedings because no inquiry was made regarding whether Mr. Diaz waived his presence. b. ABSENCE FROM DISCUSSIONS ABOUT WITNESSES
14See Johnson v. State, 750 So. 2d 22, 28 ("there is no record evidence of any inquiry into Johnson's understanding of his right to be present during [the codefendant's] presentation of mitigating evidence").
15Among the conclusions contained in Dr. Castiello's written report was that Mr. Diaz's "[i]nsight and judgment into his present situation did not appear more than superficially adequate" (PC-R. 480). This is a significant observation and certainly one which should have been explored during a competency hearing. Because the conversation between Dr. Castiello and the court about Mr. Diaz's competency took place off the record, it is not known if Dr. Castiello reported to Judge Donner his opinion regarding Mr. Diaz's "superficially adequate" level of insight and judgment. If he did so report, the court never informed anyone.
14 i. Discussions Regarding Hector Torres. At a recess during the State's case, with Mr. Diaz (representing himself), out of the courtroom (R. 1094), the court told the prosecutor and stand-by counsel that the public defender representing a man named Hector Torres had asked to withdraw from representing Torres because
Torres said he had information about the Angel Diaz trial (R. 1095). Although familiar with the Torres case, the prosecutor did not know whether the information Torres possessed was inculpatory or exculpatory to Mr.
Diaz (R. 1095-96). The prosecutor and court assumed that the information must be inculpatory because Torres wanted to discuss it with the State (Id.). The prosecutor offered to talk to Torres along with stand-by counsel
"and then come back and report to the court. Certainly if it is Brady material at that point, then Mr. Lamons can make him available to Mr. Diaz to testify in his behalf" (R. 1096). The court stated she would appoint an attorney for Torres (R. 1097). After a short recess, court reconvened, still without Mr. Diaz present (R. 1097), and the court stated that a Mr. Galanter had been appointed to represent Torres (R. 1097-98).
At the close of the State's case, while Mr. Diaz was still in the courtroom, the prosecutor stated that the judge needed to "take care of the matter with Mr. Torres very briefly" (R. 1168). After stating "Yes. Let's do it right now[,]" the clerk stated "You do now want to do that in from of the defendant, do you?" At that point, the judge states: "Okay. All right. Let's do this. I think the defendant needs to go into that area there now" and states "We will see you tomorrow, Mr. Diaz, 9:30 in the morning" (Id.). The record then indicates that Mr.
Diaz "left the courtroom" (R. 1069).16 After Mr. Diaz left the courtroom, the judge, prosecutor, and stand-by
16During the oral argument before this Court, the State candidly conceded that it had no explanation for the trial court's conduct in sending Mr. Diaz out of the courtroom:
JUSTICE ANSTEAD: Why did the court go to great efforts . . . the last excerpt read by your opponent, apparently when everyone realized they were going to be talking about Torres again somebody called it to the court's attention Mr. Diaz is here. And so the court says, we better get him out of here and then went on to . . . It's just very difficult to understand you know
15 counsel engaged in a lengthy discussion about Torres. See R. 1169-76. For example, Torres' attorney stated that, in his view, Torres "has nothing that would put the State under any obligation to disclose any information under Maryland v. Brady, Brady v. Maryland" (R. 1171-72). The prosecutor stated that Torres "would not be willing to divulge that incriminating information unless he got a deal by the State," whereupon the judge stated
"The Court would not allow the State to make a deal with Mr. Torres" (R. 1172). Torres' attorney further stated that Torres indicated that "he has some knowledge about the case" and that "[i]n my opinion, none of exculpatory" (R. 1173-74). The Court stated that if Torres "wishes to say anything about the case without a deal, I will certainly allow the State and the defense to talk to him" (R. 1174-75). The State was "not interested because we have rested our case" (R. 1175). Mr. Diaz's stand-by counsel asked Torres' lawyer if Torres had
"information about any witnesses, specifically, Ralph Gajus or others that would tend to be favorable to the defendant, something that the defense could utilize" (R. 1175). Torres' lawyer simply stated that "I can only tell you as an officer of the Court that, in my opinion, there is absolutely no exculpatory evidence" (R. 1175).
Stand-by counsel then stated "I am satisfied," the Court stated "I am too" and the hearing ended (R. 1176).
The pro se Mr. Diaz was never present for any of this; in fact he had been excluded by the court.
what it going on, and its made additionally difficult by the fact that standby counsel is allowed to be present. So you would assume from that that there is really nothing secret you know, something that is not proper to be disclosed to the defense, and yet we just don't know. And here Diaz is, representing himself, who's carefully being excluded each time this thing comes up. Is there every any explanation in the record laying this out as I asked your opponent. Do you agree with your opponent that there never is anything that...
MS. BAGGETT: No, there isn't, and I understand this Court's difficulty in considering this issue and the context of this issue, and, and, the better course would have been for the trial judge to explain something on the record why she was sending the defendant out. I can stand here and give you my supposition and my speculation, but I won't, from my reading of the record.
16 Galanter, who was not involved in Mr. Diaz's case and likely knew very little if anything about it, offered his opinion that Torres possessed no exculpatory information. Bound by the attorney/client privilege, Galanter revealed none of the substance of Torres' knowledge, just his own opinion that the information was not exculpatory. Lamons had no authority to be agreeing to or waiving anything on behalf of Mr. Diaz. Had Mr.
Diaz been present, he could have at least chosen to interview or depose Torres to see what information he had so that Mr. Diaz could have then made an informed decision about subpoenaing the witness. He was never given that opportunity. The court never informed Mr. Diaz about the discussions regarding Torres and never waived his presence. This was a critical stage of the proceedings, and in fact occurred during the trial itself when Mr.
Diaz was purportedly representing himself. ii. Discussions About The Defense Case. After the State rested, Mr. Diaz asked to call various witnesses in his defense (R. 1160-61, 1185-1226). Several witnesses were inmates who could impeach the credibility of
Gajus, the jailhouse informant (R. 1201). The court ultimately allowed Mr. Diaz and Mr. Lamons to interview them in a holding cell (R. 1216-17).
That afternoon the court convened to discuss the outcome of the interviews. Mr. Diaz was not present
(R. 1218). A discussion between the Court, the prosecutors, and Mr. Lamons occurred, and the court ruled that she would not allow Mr. Diaz to call the witnesses (R. 1218-19). Although the court later reiterated her ruling to Mr. Diaz (R. 1222), the court never informed him about the discussion between the court, prosecutor and stand-by counsel. The court did not inform Mr. Diaz of the prosecutor's arguments about these witnesses' testimony nor of stand-by counsel's comments about these witnesses. Mr. Diaz never waived his right to be present. These discussions of witnesses Mr. Diaz was considering presenting in his defense clearly constituted a critical stage of the proceedings.
17 C. OTHER ABSENCES . Mr. Diaz was absent from many other proceedings concerning significant matters.
At a pretrial hearing on a defense motion for the state to produce a witness, Mr. Diaz was not present (R. 374-
79). Witnesses in the case either recanted or "disappeared," and the state's discussion of the availability and relevance of witnesses was therefore important to the trial, particularly witness Georgina Deus, yet Mr. Diaz was not present for any of this colloquy (R. 3714). The court made no inquiry about his absence nor was any waiver ever presented (R. 374). This colloquy was a critical stage, but even more so because Mr. Diaz would represent himself. During his defense, he displayed great concern about these witnesses and unsuccessfully attempted to cross examine Detective Smith about the improprieties instigated by the state with regard to these witnesses (R. 1073-85). Mr. Diaz also unsuccessfully attempted to have Georgina Deus produced at trial as a defense witness (R. 1188-1189).
Mr. Diaz was present but without an interpreter at a hearing on a motion to continue by the state (R.
422-28). The State requested this motion because of the unavailability of Candace Braun, a key State witness.
At the hearing the defense and the prosecutor discussed the admissibility of this evidence and whether Mr. Diaz or his co-defendant, Toro, had spoken to this witness (R. 423-24). Defense counsel noted that one witness had already recanted (Georgina Deus) and he was concerned that Braun would also recant (R. 424-25).
Nor was Mr. Diaz present at other pretrial hearings at which Toro's responsibility for the shooting was discussed. He was not present when defense counsel moved for appointment of an expert psychologist and for production by the state of favorable evidence, specifically evidence detrimental to co-defendant Toro (R. 350).
Mr. Diaz was also absent from a motion to strike the death penalty on grounds that the state had failed to produce favorable evidence (R. 359). At that hearing, defense counsel noted that he had reason to believe that
Toro was the triggerman. Defense counsel also brought up the state's failure to respond to his Brady request
18 filed on April 26, 1984, some 20 days prior to the hearing (R. 359). Mr. Ferrero asked about his client's presence; the court asked counsel if he waived Mr. Diaz's presence, and counsel did so despite conceding that
Mr. Diaz did not know "what the motion was for" (R. 359). The record shows no ratification by Mr. Diaz of the waiver.
Mr. Diaz was also absent from a hearing concerning a potential witness against the co-defendant Toro and the conflict resulting from his own attorney's, Mr. Ferrero's, representation of that witness (R. 396-413).
Mr. Diaz was absent during the testimony of security officer Rogers, who testified about the reasons he and Commander Bencomo felt the extreme security measures were necessary (R. 696-702). This became critical because Mr. Diaz attempted to represent himself at trial while shackled. Rogers said that Mr. Diaz had a reputation for violence and had already bribed a security guard (R. 697). This was doubly damaging because the source of these facts is not clear, and injection of such unreliable facts was harmful to the court's general perception of the case. Mr. Diaz, however, was not there to challenge them. The testimony was also prejudicial because the judge relied on it to approve of the extraordinary security measures, including shackles (R. 700-02).
During his testimony, the officer also mentioned a plea offered to Mr. Diaz and defense counsel pointed out that the officer was misinformed (R. 698-99). Mr. Diaz had no chance to challenge this because he was absent.
Again, before Mr. Diaz was brought in to the courtroom, discussions occurred between the court and stand-by counsel about closing arguments. After that discussion, the court states, "We cannot talk about this in front of him, so close the door" and goes on to discuss whether the courtroom personnel would be armed
(R. 1179-81) (emphasis added). The judge then had a conversation with the prosecutors outside the presence of
Mr. Diaz during which she asked how much time the State wanted for its closing argument, and addressed other matters such as the verdict forms (R. 1181-82). Finally, the prosecutor acknowledged that "[w]e should have
19 the defendant here for all these discussions" (R. 1182). Finally, Mr. Diaz was brought into the courtroom (R.
1182). Instead of explaining what had transpired in his absence, the court and the prosecutor immediately went on to address the jury instructions.
D. CONCLUSION. There can be no doubt that these absences had an affect at trial and that the involuntary absences, singularly and cumulatively, constitute reversible error. The issues leaped out from the transcript, such as the portions of the transcript where it is clearly indicated that the proceedings were conducted "outside the presence of the defendant." Habeas relief is warranted.
3. RIGHT TO COMPULSORY PROCESS & PRESENT DEFENSE. At the close of the State's case, Mr.
Diaz indicated that he wanted to call several witnesses in his defense (R. 1160). The court told Mr. Diaz: "Mr.
Diaz, do you understand that we are starting the trial tomorrow at 9:30? Anyone who is not here cannot testify"
(R. 1160). Mr. Diaz explained that "I was told to wait for trial. When the State Attorney's finished, I could present to the Judge my petition for the witnesses that I wanted to present. I have waited for this moment" (R.
1161). Although Mr. Diaz clearly meant that he was requesting subpoenas ("my petition for the witnesses that I wanted to present"), the court then told Mr. Diaz:
THE COURT: I do not understand what you mean by petition. You have the right to call witnesses, of course, and they are to be ready, just as the State's witnesses are ready.
We are going to begin the trial again tomorrow. You have the right to put on whatever witnesses you wish or call any State witness back to the stand who is still available. You did not wish to hold any, but I am sure if they are around, they are available to come to the stand.
Other than that, the trial will continue tomorrow.
(R. 1161). Ironically, the prosecutor then pointed out to the court that if Mr. Diaz "needs the assistance of the
Court and he has a proper address, in securing the attendance of witnesses, he has the right to have the Court aid him in producing people" (R. 1161). The court proceeded to blame Mr. Diaz for the situation (R. 1162).
20 Next, a discussion occurred on the record about the status of the case (R. 1185). Standby counsel informed the court that Mr. Diaz had a list of witnesses who Mr. Diaz wanted to ask the court's assistance in locating (R. 1185). The prosecutor demanded a list of the names and wanted Mr. Diaz to show "whatever efforts he personally has made up to this point to secure their attendance before coming to court, not at the eleventh hour, and asking for your assistance" (R. 1186). After responding that "I almost think this is the twelfth hour" (R. 1186), the court asked Mr. Diaz for the names and addresses of the witnesses he wanted to call to testify (Id.). After conferring with Mr. Lamons, Mr. Diaz stated that "my desire is to present as a potential witness for these charges in favor of the defense Ms. Georgina Deus; the Detective O'Neill, Department of the
Police of Boston, Massachusetts; Detective ---" Id. Mr. Diaz also wanted to call "Detective Murphy from the
Department of Homicide from Boston. I want to present the attorney Gutierrez. I want to present Emilio
Bravo. This is a prisoner who is now in the institution where I am, the jail, and a known State Prisoner Rusty
Simon on the fourth floor, the same institution. I would desire to present Virginia Cummings from Connecticut and Roberto Martinez, a State prisoner" (R. 1189-90). Mr. Diaz further explained "I have evidence which I am going to present to the Court that these witnesses, the first witnesses, are witnesses that in one way or another are working with the government or some government of the United States" (R. 1190).
In support of his desire to call Georgina Deus, Mr. Diaz proffered Detective Smith's statement (R.
1191). The prosecutor argued that in that statement, Deus had recanted her earlier statement implicating Angel
Toro and Mr. Diaz in the killing because she said she was forced by Det. Smith to make the inculpatory statement about Mr. Diaz (R. 1191). The prosecutor then said that since Deus' recantation, "she has been unwilling to testify" for the State (R. 1192). Detective Smith, who was present in the courtroom at this time, explained that "[i]n the last year I have made no efforts to contact [Georgina Deus]; none whatsoever" (R.
21 1192). At that point, the court asked Mr. Diaz where Deus was, and Mr. Diaz responded that he believed
Massachussets or Long Island, and then presented Deus' statement (R. 1193).
After providing the court with self-serving information about Deus, the prosecutor demanded that Mr.
Diaz show "what effort he has made to secure her attendance" because "[w]e cannot at the time the witness is going to be here then start looking for them" (R. 1195). The court questioned Mr. Lamons, who acknowledged that he "knew they could be potential witnesses. I had heard of them, obviously" (R. 1189-90). Lamons divulged, however, that he "would not have called them" if he were the attorney, and Mr. Diaz responded that "it is very important for the defense to present in this court and the jury these witnesses" (R. 1197).
The court ruled that Mr. Diaz was precluded from calling Deus because "since 1983 Mr. Diaz knew
Georgina could possibly be a witness in this trial" and because Mr. Diaz has had "several attorneys, both of them exceptionally capable, and neither of them desired to call Georgina Deus" (R. 1198). The court also ruled that Deus' statements were not yet in evidence, and although recognizing that "Mr. Diaz wants to put them into evidence" (R. 1198), and that Mr. Diaz was "welcome to argue that to the jury when you have the closing argument, for whatever reason you would desire to do so" (R. 1198-99), the court ruled, "I am not going to stop this trial to find someone who lives in the State of Massachusetts" (R. 1199).17 In reply, Mr. Diaz stated:
THE DEFENDANT: Before anything else, I would like to say that the statement is only possessed since 1983, and the statement where Georgina Deus is accusing me of these accusations, the other statements, I had them two days ago right here in this court. I want this to appear on the record, what I am now saying. In other words, that I have not had the opportunity -- I have had lawyers. Peter Ferrero, that was the only document he gave me from 1983, one statement from Georgina Deus where I was being accused.
THE COURT: Thank you.
17The court ignored Mr. Diaz's argument that he had been told that he could not petition the court to have his witnesses available until the State's case was completed. See R. 1161.
22 (R. 1200).
Mr. Diaz was asked about what Detective O'Neill would testify about, as well as Detective Murphy and
Mr. Gutierrez. Mr. Diaz explained that they were all related to the Georgina Deus statement (R. 1200-01). As to Emilio Bravo, Mr. Diaz explained that "[t]his witness . . . will [] prove in this court that the witness the State
Attorney has presented, and I am referring to Ralph Gajus, was lying" (R. 1201), as would Rusty Simon and
Mr. Sanborne because "[t]hose are witnesses that found themselves sharing space with us" (R. 1201). As for
Virginia Cummings, Mr. Diaz told the court that when Candace Braun had testified for the State, Braun
"mentioned that this lady had sent a letter or something threatening with cutting her face if she came to accuse or something like that" (R. 1203), and that Cummings "will take away credibility from this lady in this aspect and in many other aspects as well" (R. 1203). The court replied "[t]hat is not good enough" (Id.). The court then asked Detective Smith if he ever heard of this woman, and Smith replied that "the name was provided to me by
Candace Braun just this past week" (R. 1204). Mr. Diaz repeated that "[w]ith your permission also, I think this witness is very important to his case" Id. Mr. Diaz further detailed that he had Cummings' address and telephone number in Connecticut, and that she also "can take away credibility from Ralph Gajus" (R. 1205). In response to Mr. Diaz's requests, the prosecutor told the court:
MR. KASTRENAKES: The bottom line is, he has admitted to the Court he has the address of the person from Connecticut. He knows her exact phone number. He knows for a period of time. This is judgment day, and yet he has done nothing until this very moment to inform the Court or anybody that he needs that witness.
(R. 1206). To make matters worse, the court then questioned Mr. Lamons about his discussions with Mr. Diaz about this witness. Lamons told the court that he did not recall Mr. Diaz mentioning Cummings to him, and the court used that information against Mr. Diaz, telling him that he "could have mentioned the name" to Lamons
(R. 1206).
23 The questioning continued. As to Robert Martinez, Mr. Diaz explained, "[t]his person was mixed in the case of Ralph Gajus" (R. 1206), and reiterated that with all the witnesses he named, "I consider them to be important to be presented by the defense" (R. 1207). Mr. Diaz also told the court that these witnesses were important because the State witnesses alleged that he spoke perfect English, which is not the case (R. 1207-08).
As to this, the prosecution replied, "if he wants to put somebody on to say he does not speak English we are prepared to present Captain Zappy from the Corrections Department who will testify that he has had many conversations with the defendant in English" (R. 1208). Mr. Diaz then stated that he did not oppose any witnesses that the State would call but "would like the Court not to oppose my witnesses that I wish to present for my defense" (R. 1208).
The court ruled that as to Georgina Deus, Detective O'Neill and Detective Murphy, "the Court can find no reason at this twelfth hour to bring, to look for, to find, and perhaps to persuade or not to be able to persuade these witnesses to come down to the State of Florida to testify in your behalf, Mr. Diaz" (R. 1209-10), and found that "the matters that you wish to bring into this trial are irrelevant" (R. 1209). The court ignored Mr.
Diaz's argument that he had been advised that he could not petition the court for witnesses until the State's case had ended (R. 1161). As to Cummings, the court found that she "should have been called prior to this time" and that "your attorney did not even know the name of this witness or that which she would testify to" (R. 1210).18
As to Sanborn and Bravo, the court noted that because it was possible to go across the street to the jail, she would permit the State and Mr. Lamons to interview the witnesses (R. 1210-11). Then the court changed her mind, and ordered Mr. Lamons to speak with the witnesses first because "that would be appropriate" (R. 1213).
18The court ignored the fact that the existence of this witness was not even known until the week before when Candace Braun talked to Detective Smith (R. 1204).
24 Mr. Lamons then questioned whether he was authorized, adding that he "would not on my own call these witnesses" (R. 1213). The court then told Mr. Diaz that he was not going to be allowed "because of the circumstances of your incarceration" to speak to these witnesses, but Mr. Lamons would go instead (R. 1213).
Mr. Diaz objected, stating "that's not my desire. I understand that Mr. Lamons is not my lawyer. I am representing myself" (R. 1213). The following discussion then ensued:
THE COURT: Mr. Diaz, you may not go over and speak to those people in the jail and have a meeting with them to decide whether or not they are going to testify for you. Though you are representing yourself, there are certain limited restrictions concerning your ability to do that.
THE DEFENDANT: I was not informed by the Court of that. The Court did not inform me that when they told me that they would permit me to take all my own defense.
THE COURT: Well, Mr. Diaz, Mr. Lamons is free to go to the State of Connecticut to look for a witness. Do you think you should be also? MR. DIAZ: I think so.
THE COURT: Then I do not think you understand that you are being held without bond, and that this is the law of the State. I am not going to get into it with you, but I am going to ask you one time. If you decide not to, then I will feel that you are not desirous of calling those witnesses.
Do you or do not wish Mr. Lamons on your behalf to speak to Emilio Bravo and Rusty Sanborn? Because if you do, I will order him to go over there.
THE DEFENDANT: That's not my desire. I don't consider that just.
THE COURT: Okay, Mr. Diaz, then we will continue with the hearing. We are going into closing argument.
(R. 1214-15)(emphasis added).
In an apparent realization of the error, the State asked if there was a way "where they could be transferred one by one over here where the defendant could somehow be present when we speak to them" (R.
1215). The court replied that Lamons "has got to be there" (Id.). The prosecutor again pointed out that Lamons
25 "is right now not his own attorney. Mr. Lamons is nothing but an advisor" (Id.). After the warning by the State, the court then brought the correctional staff in and said "[i]f you agree to let the two, Diaz and one of them, Diaz and the other one, that is all right with the Court" (R. 1216). At the conclusion of the discussion, the prosecutor noted that "[i]f [Mr. Diaz] was convicted, it might be reversed otherwise" (R. 1217). That afternoon, court convened to discuss the witness interviews. Mr. Diaz was not present (R. 1218). Lamons informed the court that "I would not call either one of them, but it is up to him" (Id.). The Court then instructed to "have him brought out as soon as you have the proper personnel" (Id.), adding that "[p]erhaps maybe I should explain [to
Mr. Diaz] that I am not going to permit that kind of testimony" (R. 1219).
Finally, Mr. Diaz was brought to court. After the court told him that she would not allow his witnesses to testify (R. 1222), and explained that he would have the right to two closing arguments if he did not present any witnesses (R. 1223), Mr. Diaz stated:
THE DEFENDANT: Before making this decision, and I would like everything I am about to say go on the record, first of all, I would like to announce to the Court that I give up the supposed assistance that is being offered by Mr. Lamons, upon understanding that he was offering -- it is being allowed for me to make a mistake in my own defense. Therefore, I ask this Court that Mr. Lamons hand over to me all documents, legal, that he possesses on this case or any other case.
Another thing, I wish to present a motion for appeal.
THE COURT: Mr. Diaz, motions for appeal happen after the trial, not during trial.
THE DEFENDANT: Okay, then. A motion -- I'm sorry. A motion, a petition, a motion that is a petition for the Court to consider the petition once again of presenting my witnesses in court. I have been able to demonstrate to the State that my only interest in presenting these witnesses is to prove my innocence.
Of the nine witnesses, the State has been able to present or present themselves personally in front of the two witnesses out of the nine I am speaking of, and they have been able to verify, and I understand that I have not used any technique that's dirty to prove my innocence. Therefore I beg this tribunal to take my motion into consideration to present my nine witnesses
26 that I wish.
I would also like to inform the Court that if those are not considered, I understand that this Court is not being impartial.
THE COURT: All right. Mr. Diaz, I have considered your motion previously, and whether or not you believe this Court is being impartial, I am conducting this trial in what I believe to be a fair, just, and impartial manner.
The witnesses that I told you we will not delay trial to attempt to obtain are those four witnesses whom the Court feels would not in any way assist you in any defense. The two witnesses that we have here you are, of course, are able to call. The other witnesses you do not know where to locate, and the Court will not postpone this trial in order to allow you to search all over the United States to find two people whose location we are unaware of.
Do you still wish to call the two witnesses whom you are now aware are not able to testify concerning the escape of Mr. Gajus?
THE DEFENDANT: After listening to your determination that since it is not being granted that motion, petition, and presenting my nine witnesses, I will not present these two witnesses, and I will have them present -- I will have them present, and I think that this trial should be considered nullified. THE COURT: Thank you, Mr. Diaz, for your opinion.
(R. 1226).
The court's refusal to allow Mr. Diaz to call witnesses denied him his right to present a complete defense in violation of the Sixth, Eighth and Fourteenth amendments. Washington v. Texas, 338 U.S. 14
(1967); Crane v. Kentucky, 476 U.S. 683, 690 (1986); Pointer v. Texas, 380 U.S. 400 (1965). Due process supersedes the application of state evidence rules. Chambers v. Mississippi, 410 U.S. 284, 302 (1973); Rock v.
Arkansas, 107 S. Ct. 2704 (1987); Taylor v. Illinois, 108 S. Ct. 646 (1988). Where a defendant is prevented from presenting evidence which is 'plausibly relevant' to his theory of defense, reversible error occurs. Coxwell v. State, 361 So. 2d 148 (Fla. 1978); Coco v. State, 62 So. 2d 892 (Fla. 1953).
27 The evidence, challenging the credibility of Braun and Gajus, was more than plausibly relevant.19 Mr.
Diaz was asking to present impeachment evidence clearly relevant to disputing the State's evidence. The trial court's exclusion of evidence was constitutional error of the first order "and no showing of want of prejudice
[will] cure it." Davis v. Alaska, 415 U.S. 308, 317-18 (1974). The failure of appellate counsel to raise this issue clearly undermines confidence in the outcome of the direct appeal.
4. NO INDEPENDENT WEIGHING. The Eighth Amendment requires that a sentence of death be the product of an individualized, reasoned, and fair determination and weighing of appropriate aggravating and mitigating circumstances. No independent weighing occurred here, and appellate counsel unreasonably failed to raise this issue on Mr. Diaz's direct appeal.
At sentencing, the trial court stated:
Mr. Diaz, you have been found guilty by a jury of your peers of murder in the first degree, and eight other counts, including armed robbery and armed kidnapping. The jury during the penalty phase of the trial had the opportunity to consider the aggravating and mitigating factors before making its recommendation to this court.The jury and this Court had to consider the fact that you were previously convicted of a violent felony and while serving that sentence, you were found guilty of killing the director of the program in that prison. Thereafter, after being convicted of that murder and from that penal institution, that in December of 1979, you committed the crimes for which you are being sentenced here today; said crimes being committed solely for pecuniary gain and which crime resulted in the death of another; that thereafter you left the State of Florida and was [sic] incarcerated in Hartford, Connecticut, and subsequently attempted to and succeeded in escaping from that institution by taking corrections officers as hostages to be later apprehended; and thereafter convicted of escape.
This court must find that you have a total disregard for human life and the welfare of others; and that this total disregard is apparent to this Court.
I, therefore, and because of the recommendation of the jury, have no choice, sir, but as to Count I, murder in the first degree, sentence you to death in the electric chair. May God have mercy
19During guilt-innocence deliberations, the jury asked for transcripts of the Braun and Gajus testimony (R. 1329), a request indicating these two witnesses were essential to the State's case.
28 on your soul.
(R. 1467-1469). The State pointed out that the court had to make findings and offered to write them (R.
1470).20
The trial court's oral pronouncement of sentence consisted of some 330 words in approximately 2 pages of transcript. The sentencing order drafted by the State and signed by the court consisted of 12 legal-size pages
(R. 319-330). During her oral sentence, the judge made no findings about aggravators and mitigators; rather, she stated that the jury had the opportunity to consider the aggravating and mitigating factors before making its recommendation, and that the jury and the Court considered the fact that Mr. Diaz was previously convicted of a prior crime of violence, and considered that the crimes were committed for pecuniary gain (R. 1467-69). The judge not find that these aggravators existed, but only detailed the information that the jury had been given to consider. At no time did Judge Donner make actual findings regarding aggravating circumstances. At no time did she mention, much less discuss, mitigation. Yet from her silence the sentencing order contains 8 legal-size pages of detailed discussion rejecting mitigation (R. 323-330). The State inserted a passage into the sentencing order concerning the disparate treatment received by co-defendant Toro to the effect that "[t]he Court is satisfied that the disparate treatment of the co-defendant has been sufficiently explained by the written proffer submitted by [Assistant State Attorney] John M. Hogan" (R. 327). The order further included that the State's proffer "is specifically adopted by the Court and made a part of this Order" (R. 327). This was not mentioned by Judge
Donner in her oral pronouncement of sentence.
Capital sentencing judges must conduct a reasoned and independent sentencing determination. Patterson
20To the extent that counsel failed to object, Mr. Diaz's Rule 3.850 motion alleged that trial counsel rendered ineffective assistance of counsel.
29 v. State, 513 So. 2d 1257 (Fla. 1987); Nibert v. State, 508 So. 2d 1 (Fla. 1987); Muehleman v. State, 503 So.
2d 310 (Fla. 1987); Van Royal v. State, 497 So. 2d 625 (Fla. 1986). In this case the trial court delegated that responsibility to the State. The record here reflects that no independent weighing. Appellate counsel's failure to raise this issue on appeal was unreasonably deficient performance.
5. DENIAL OF SELF-REPRESENTATION AT PENALTY PHASE. A defendant has the right to conduct his own defense when he "knowingly and intelligently" so chooses. Faretta v. California, 422 U.S. 806
(1975). If Mr. Diaz properly could waive his right to counsel at the guilt phase, even though it was clear that he was not versed in the law, not literate, and not capable of representing himself (R. 809; 815; 822), then denying the right of self-representation at the penalty phase was error.
At the penalty phase, upon a similar inquiry and similar responses as those elicited at guilt-innocence, the court found that Mr. Diaz would not represent himself (R. 1359-63). Mr. Diaz was either competent to represent himself or he was not. The court, in appointing counsel at the penalty phase, stated:
The Court is going to make the following statement. I would be derelict in my duties as a circuit court judge if I did not appoint Mr. Lamons to represent him, because he has stated at this time that he was not capable of representing himself at these proceedings.
(R. 1363) (emphasis added). If this were the case, Mr. Diaz should not have been allowed to represent himself at "the last trial." There was no change in Mr. Diaz between the guilt and sentencing phases. There was no reason to distinguish between allowing him to proceed pro se in one phase and not in the other. Mr. Diaz did not agree with the court's appointment of counsel in the penalty phase (R. 1363). "In forcing [Diaz], under these circumstances, to accept against his will a state-appointed [attorney], the [Florida] courts deprived him of his constitutional right to conduct his own defense." Faretta, 422 U.S. at . Appellate counsel unreasonably failed to raise this meritorious claim on direct appeal.
30 6. FAILURE TO ENSURE PREPARATION OF COMPLETE RECORD ON APPEAL. Accurate trial transcripts are crucial for adequate appellate review. Griffin v. Illinois, 351 U.S. 212 (1956). In Mr. Diaz's case, several matters are missing from the trial record. For example, Mr. Diaz was initially represented by Mr.
Ferrero. At some point, Mr. Ferrero withdrew, and Mr. Lamons became Mr. Diaz's counsel. The record does not indicate when this occurred, why Mr. Ferrero withdrew or how Mr. Lamons came to be appointed. This information is clearly relevant to Mr. Diaz's later decision to represent himself, but the record is silent.
Additionally, several pretrial conferences appear to be missing from the record.
Finally, the record contains no transcript of matters which occurred the morning of the day Mr. Diaz's trial began. The trial began on December 17, 1985 (R. 430). The only thing indicated in the record for that morning is the court announcing that Mr. Diaz's case is set for trial (R. 433). Then the proceedings were adjourned until 1:30 p.m. (id.), when various motions were heard and jury selection began. However, on the morning of December 17, Mr. Diaz spoke to the court, explained that he had just recently met Mr. Lamons, and asked for two or three weeks to get ready for trial.21 The court informed Mr. Diaz that Mr. Lamons was a good attorney, that everything would be okay, and that there would be no continuance. Mr. Lamons also spoke to the judge that morning, but the court said the trial was going ahead. When Mr. Diaz protested, the court said he would have to represent himself. Mr. Diaz did not ask to represent himself, but just asked for two or three weeks to prepare for trial. The self-representation idea was proposed by the judge, not Mr. Diaz. The judge then asked Mr. Diaz if he knew how to pick a jury, and when Mr. Diaz said no, the judge said Mr. Lamons would pick the jury. The first time the record indicates anything regarding Mr. Diaz representing himself is
21Mr. Lamons appears to have begun representing Mr. Diaz around September, 1985 (R. 439), and trial was set for February, 1986 (Id.). The trial date was then moved up to December, 1985 (Id.).
31 after the jury was selected, just before the State's opening. None of the discussion which occurred that morning is in the record. Because the record in this case is incomplete, confidence in the record is undermined. Mr. Diaz was denied due process, a reliable appellate process, and effective assistance of counsel on appeal.
7. INTERFERENCE WITH ATTORNEY-CLIENT PRIVILEGE. Before trial, Lamons informed the court that the State had just made a new plea offer which he wanted to discuss with Mr. Diaz (R. 434). The court told Lamons that she was "not going to allow you to be in a room alone with him" (R. 434), and directed that a security officer go in the jury room with Lamons and Mr. Diaz and that Mr. Diaz be handcuffed and shackled (R. 435-36). Lamons objected to this interference with attorney/client privilege (Id.). The court then provided an interpreter but allowed Lamons only five minutes to discuss this new plea offer with his client (R.
436).
In Perry v. Leeke, 109 S. Ct. 594 (1989), the Supreme Court observed that a "defendant does have a constitutional right to discuss with his lawyer [matters] such as the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain. It is the defendant's right to unrestricted access to his lawyer for advice on a variety of trial-related matters that is controlling in the context of a long recess." Id. at
602. Counsel's representation of his client must not be interfered with by a government agency or court, yet that is precisely what occurred in Mr. Diaz's case. His attorney, in attempting to convey a new plea offer to his client, was limited by the court to "five minutes" (R. 436), and was ordered to take Commander Bencomo and a
"correctional officer" into the room with them, thereby violating the client-attorney privilege. This was a clear violation of Mr. Diaz's Sixth Amendment right to counsel. Appellate counsel on direct appeal failed to raise this issue.
8. ERROR REGARDING READ-BACK OF TESTIMONY. During deliberations, the jury requested a
32 read-back of the testimony of Candace Braun and Ralph Gajus (R. 1329). After asking Mr. Diaz if he understood the question, the court told him "[t]his is the answer I am going to give the jury" and refused the jurors' request, telling them instead that they were to "rely on [their] collective memories concerning the testimony of any witness" (R. 1329). The court never informed Mr. Diaz that he had the right to object to this answer and had the right to require that the testimony be read back. Fla. R. Crim. P. 3.410. Mr. Diaz had no choice in the matter, although he was supposed to be representing himself.22
Braun and Gajus were critical to Mr. Diaz's defense. The court did not inform Mr. Diaz that the rules of criminal procedure allowed reading back the testimony, Fla. R. Crim. P. 3.410, although at the beginning of trial Mr. Diaz had told the court he did not know Florida law. The court's action violated Rule 3.410 and due process, and appellate counsel was ineffective in failing to raise this clear fundamental error on appeal. Habeas relief is proper.
9. ERROR REGARDING DISPARATE TREATMENT PROFFER. At the close of judicial sentencing, the state indicated that it needed to put reasons on the record for the disparate treatment between Mr. Diaz and his co-defendant. The Court suggested that this be done in a proffer. Mr. Lamons, who was representing Mr.
Diaz at that time, made no objection (R. 1470-1). Thereafter, a written stipulation was submitted by the State's attorney explaining in detail the state's reasons why Angel Toro was offered a reduced charge and Angle Diaz was prosecuted to the ultimate punishment (R. 310-13). There was no cross-examination of Mr. Hogan. There was no adversarial testing of his proffer. There is no indication that he was even under oath. The proffer is full of hearsay, personal opinion and conjecture. Presentation and consideration of the proffer violated due process and the Eighth Amendment. This issue should have been raised on direct appeal. Habeas relief is proper.
22The record does not reflect that Mr. Lamons was present in the courtroom.
33 10. ERROR REGARDING PECUNIARY GAIN JURY INSTRUCTION. The Eighth Amendment requires that a capital jury receive appropriate instructions regarding the limiting constructions of an aggravating circumstance. The trial judge provided only skeletal instructions (R. 1454-55). The failure to explain the pecuniary motive aggravator is especially detrimental here because the prosecutor forcefully argued that greed motivated Mr. Diaz (R. 1422-23). The Court's instruction and the prosecutor's argument were both inaccurate statements of the law. In Peek v. State, 395 So. 2d 492 (Fla. 1981), the court concluded that to find the aggravating circumstances of pecuniary gain it must be established beyond a reasonable doubt that the victim "was murdered to facilitate the theft, or that [the defendant] had [] intentions of profiting from his illicit acquisition." Id. at 499. In Small v. State, 533 So. 2d 1137, 1142 (Fla. 1988), the Court explained that Peek held that "it has [to] be [] shown beyond a reasonable doubt that the primary motive for this killing was pecuniary gain." In Mr. Diaz's case, the jury did not receive an instruction regarding this limiting construction.
In fact, the prosecutor argued that no such limitation was applicable. The jury's 8 to 4 recommendation and the mitigation in the record (including the State's concessions that it could not prove the identity of the shooter or premeditation) establish that this error was not harmless. This claim should have been raised on direct appeal.
11. USE OF NONSTATUTORY AGGRAVATION. Aggravators specified in the statute are exclusive.
Proffitt v. Florida, 428 U.S. 242 (1976). Miller v. State, 373 So. 2d 882 (Fla. 1979); Elledge v. State, 346 So.
2d 998, 1003 (Fla. 1977). The prosecutor improperly argued to the jury that Mr. Diaz should not be allowed to live because he was likely to again escape from prison and commit violent acts in the future. This argument did not address a statutory aggravator, was based on speculation, and designed to inject fear of future acts into the jury's deliberation. Defense counsel objected (R. 1436-37, 1439). The Court gave a curative instruction that did not specifically or adequately rebut the prosecutor's insinuation. Defense counsel correctly noted that the
34 damage was done (R. 1452-53). It appears that the prosecutor's argument infected not only the jury but the trial court as well. The court throughout trial displayed fear of the defendant (R. 689, 701, 1055). In sentencing, the court referred to Mr. Diaz' past violent acts and escapes and implied a risk of future violence (R. 1468). The introduction of nonstatutory aggravation violated the Eighth and Fourteenth Amendments, and this claim should have been raised on direct appeal.
12. FAILURE TO FIND MITIGATION. A reviewing court should determine whether there is support for the sentencing court's finding that certain mitigating circumstances are not present. Parker v. Dugger, 498 U.S.
308 (1992); Magwood v. Smith, 791 F.2d 1438, 1449 (11th Cir. 1986). If that finding is clearly erroneous the defendant "is entitled to resentencing." Magwood, 791 F.2d at 1450.
Judge Donner stated that, because of the jury recommendation, she had no choice but to impose the death sentence. The oral pronouncement did not mention mitigation. In her later order written by the State, she found five aggravating factors and no mitigation. This oral sentencing and the written finding of no mitigation are improper. The record reveals that substantial mitigation was present which the court failed to fully consider.
The error was compounded by the court's delegation to the State of the responsibility for independently weighing the aggravation and mitigation.
Possibly the most important mitigation consisted of evidence that the trigger man was not Mr. Diaz, but his codefendant Toro. Candace Braun testified repeatedly that she understood that Toro shot the victim (R. 880-
81). Braun stated that the reason she came forward with this information was to prevent Toro from blaming the shooting on Diaz (R. 889-90, 896, 912, 917). Three eye witnesses who testified about the incident were unable to positively identify the robbers; none of them could identify Mr. Diaz as one of the robbers. Mr. Pardinas, a patron at the bar, testified that he was not a hundred percent certain Mr. Diaz was the man who robbed him (R.
35 965-66). The bartender, Norman Bulenda testified that he did not get a good look at the man who robbed him;
Bulenda could not recognize the robber (R. 1004-05). Another patron told police the night of the crime that the bar was dark. He could not identify the face of the culprit and could not pick out anyone from a photographic line-up (R. 1020-24). Another eyewitness, Leila Robinson, was unable to identify or recognize the culprits (R.
1035).
The prosecutor conceded in opening argument that he could not prove the identity of the shooter (R.
788), and admitted in his closing argument that there was no evidence Mr. Diaz went in the bar intending to kill anyone (R. 1257). The record reveals no evidence that Mr. Diaz killed anyone, but rather that he intended no one be killed. The court should have fairly evaluated this evidence as mitigation.
The court was also aware of prior drug abuse by Mr. Diaz. Dr. Castiello in his competency evaluation reported that Mr. Diaz had previously misused drugs. One of the sentencing orders on a Puerto Rico conviction ordered that Mr. Diaz be evaluated and treated for drug addiction (R. 275). One of the State's witnesses testified that Mr. Diaz had been in an institutional drug program (R. 1379).
The trial court never addressed the presence of this mitigation. This error is particularly egregious as the Court struck an aggravating circumstance on appeal. Under the requirement that a capital sentencer fully consider and give effect to the mitigation, Penry v. Lynaugh, 109 S. Ct. 2934 (1989), as well as under Eddings v. Oklahoma, 455 U.S. 104 (1982), the sentencing court's refusal to consider the mitigating circumstances which were established was error. This claim should have been raised on direct appeal.
13. ERROR WITH REGARD TO THE MAJORITY JURY INSTRUCTION. The jury was erroneously instructed that a majority vote was necessary for the recommendation of a life sentence (R. 525, 534, 535-36,
1457-58). That is not the law; rather, a six-six vote, in addition to a majority vote of seven-five or greater, is
36 sufficient for the recommendation of life. Rose v. State, 425 So. 2d 521 (Fla. 1982); Harich v. State, 437 So.
2d 1082 (Fla. 1983). This claim should have been raised on direct appeal. Habeas relief is proper.
14. Caldwell Error. The State's efforts to misinform the jurors concerning the seriousness of their sentencing responsibility began during voir dire (R. 523-24). For example the prosecutor said "Ultimately it is her responsibility. You do not have to leave here saying I gave him this sentence or am responsible for giving this sentence. Judge Donner sits here because she has some higher responsibilities than the rest of us, and that is part of her job, to assume those responsibilities" (R. 531). The State's voir dire reveals that the veniremen were in fact misled by the prosecutor's statements (R. 534). The court gave its imprimatur to the State's inaccurate statement (R. 559; 633). The prosecutor continued his diminution of the jury's role during the second day of voir dire, telling the jurors that "You are not the ones that are actually doing the sentencing" (R. 648). During her introductory remarks at penalty phase, Judge Donner stressed again that she, not the jurors, held the final sentencing responsibility (R. 1371). During his penalty phase closing argument, the prosecutor continued to refer to the jury's task as merely to "give a recommendation to Judge Donner" (R. 1413). The prosecutor represented the jury's recommendation as an evaluation of Mr. Diaz (R. 1429-30), and defense counsel objected on the basis of Caldwell because "this is an attempt to shift the burden, that the jury now has the burden of determining and making the recommendation of death versus life" (R. 1430). Defense counsel further observed that "the most recent case, 1985, of Caldwell versus Mississippi speaks about that issue of down playing the importance of their decision and trying to shift the burden elsewhere, that the burden goes with someone else as far as the ultimate recommendation" (R. 1431). Counsel concluded that "[t]he prosecutor is indicating that it is just an evaluation. It is more than an evaluation, and I move for a mistrial" (R. 1431). A defense motion for a mistrial on this error was denied (R. 1431). The State reiterated the unimportance of the jury's sentencing task,
37 prompting defense counsel to again object (R. 1435-36). As counsel feared, the trial court's final instruction simply emphasized the error: "As you have been told, the final decision as to what punishment shall be imposed is the final decision of the Judge" (R. 1454).
The instructions and the judge's comments violated Caldwell v. Mississippi, 472 U.S. 320 (1985), and the denial of the mistrial was error. No tactical decision can be ascribed to appellate counsel; defense counsel objected, citing Caldwell.
MR. DIAZ IS ENTITLED TO 3.850 RELIEF AND AN EVIDENTIARY HEARING
In his appeal from the denial of 3.850 relief, Mr. Diaz asserted his entitlement to relief under Strickland v. Washington, 466 U.S. 668 (1984). Moreover, he asserted his right to an evidentiary hearing on numerous other allegations, including additional claims of ineffectiveness, a Brady violation, and deficiencies in the competency proceedings.23 In addition to the Court's recognition in Stephens that it had misapplied the standard for reviewing ineffectiveness claims, Mr. Diaz submits that in light of Williams v. Taylor, 120 S.Ct. 1495
(2000), he is entitled to relief.
1. PENALTY PHASE. Mr. Diaz "had a right--indeed, a constitutionally protected right--to provide the jury with the mitigating evidence that his trial counsel either failed to discover or failed to offer." Williams v.
Taylor, 120 S.Ct. 1495, 1513 (2000). The evidence adduced at the evidentiary hearing established that trial counsel's performance was deficient and that Mr. Diaz was prejudiced as a result. The prejudice analysis
"focuses on the question whether counsel's deficient performance renders the result unreliable or the proceeding fundamentally unfair." Williams, 120 S.Ct. at 1512 n.16.
23This is not an exhaustive list of the arguments raised in his appeal; all the arguments are contained in Mr. Diaz's initial brief.
38 At the penalty phase, Mr. Diaz was represented by Mr. Lamons after the court found that Mr. Diaz could not represent himself. At the evidentiary hearing, Lamons testified that the trial was originally scheduled for February, 1986, but was moved up to December, 1985 (Supp. RII. 774). He received ten days' notice of the new trial date (id.). Lamons had been concentrating on preparing for Mr. Diaz's trial on an escape charge, not on the homicide case (id. at 775). He would have liked more time not only to prepare for the murder case but also because, due to the shortage of time, he "really had not developed the type of relationship [with Mr. Diaz] I would have liked. He was very much inclined to believe that I was an agent, or I was working for the State as opposed to an advocate for his position exclusively, and he didn't seem to understand that" (Supp. RII. 776). As far as investigating Mr. Diaz's background, Lamons said he had two phone numbers for family members but was unable to contact them (Supp. RII. 782), so "I don't think I talked with anybody" (Id. at 783). Then, "as time went on, [Mr. Diaz] forbade me to have any contact with the family (Id.). However, Mr. Diaz did not directly say "'Don't call my family.' It's just a situation where he said he didn't want me to have any contact with his family" (Id. at 787). Lamons did not attempt to locate any medical or other records regarding Mr. Diaz because he did not know that "there would be any type of mental or other reports or history that would be pertinent to this case" based on his conversations with Mr. Diaz (Id. at 811). Since the competency experts had relied solely on Mr. Diaz's self-report, all of Lamons' penalty phase preparations resulted solely from Mr. Diaz's self-report (Id.). Lamons recognized that background information from independent sources may show that a client has greater problems than the client himself will acknowledge (Id. at 818). Lamons did know that Mr.
Diaz had previous incarcerations, but obtained no records from the institutions (Id. at 820-21). Mr. Diaz had told Lamons he had used cocaine, marijuana and heroin, but Lamons investigated no further (Id. at 822-24).
Although prior counsel, Peter Ferraro, had had a mental health expert appointed to prepare for the penalty
39 phase, Lamons never contacted the expert to arrange an evaluation of Mr. Diaz (Id. at 825-26), partly because of the limited time he had before trial began (Id. at 827). Mr. Lamons explained that prior to trial, "I was concentrating on the guilt or innocence, on that phase of the trial" and "was going to try my best to develop whatever additional information would be necessary at that time between the finding of guilt and the penalty phase" (Id. at 844-46).
Counsel's performance was deficient. "To save the difficult and time-consuming task of assembling mitigation witnesses until after the guilt phase almost insures that witnesses will not be available." Blanco v.
Singletary, 943 F. 2d 1477, 1501-02 (11th Cir. 1991). See also Williams, 120 S.Ct. at 1514 ("counsel did not begin to prepare for the penalty phase of the proceeding until a week before the trial"). "It is apparent from the record that counsel never attempted to meaningfully investigate mitigation, and hence violated the duty of counsel `to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence.'" Rose v. State, 675 So. 2d 567, 572 (Fla. 1996). Although counsel had an
"obligation to conduct a thorough investigation of the defendant's background," Williams, 120 S.Ct. at 1515, counsel unreasonably failed to do so. Counsel's obligation to investigate extends beyond acquiescing to the wishes of his client not to investigate. Blanco, 941 F.2d at 1502 ("a defendant's desires not to present mitigating evidence do not terminate counsel's responsibilities during the sentencing phase").
Mr. Diaz has also established prejudice. Strickland's prejudice standard requires showing "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v.
40 Washington, 466 U.S. 668, 694 (1984).24 This Court's independent review must "evaluate the totality of the available mitigation evidence--both that adduced at trial, and the evidence adduced in the [postconviction] proceeding--in reweighing it against the aggravation." Williams, 120 S.Ct. at 1515. Mr. Diaz submits that the unpresented mitigation "might well have influenced the jury's appraisal of [Mr. Diaz's] moral culpability" and
"alter the jury's selection of penalty." Id. at 1515-16. This is particularly so where the jury recommendation was by an 8-4 vote, Mr. Diaz was not, as practically conceded by the State, the actual shooter, an aggravator was struck on appeal, and numerous improper and objected-to arguments were advanced by the State.25
At the hearing, Mr. Diaz presented testimony from family members and mental health experts.26 These witnesses described Mr. Diaz's alcoholic abusive father who prayed to the devil (Id. at 742-43), and who beat the mother and children until they had to lock themselves in a room to wait for the father to calm down (Id. at
734-35). As a child, Mr. Diaz would lock himself in his room and cry because he could not protect the younger children (Id. at 706). The father sexually abused the female children (Id. at 708, 732-34). The father threatened
24A defendant is not required to show that counsel's deficient performance "[m]ore likely than not altered the outcome in the case." Strickland, 466 U.S. at 693. The Supreme Court specifically rejected that standard in favor of a showing of a reasonable probability. A reasonable probability is one that undermines confidence in the outcome. Williams, 120 S.Ct. at 1513. The quantum of proof needed to establish ineffective assistance of counsel is less than a preponderance of the evidence. Strickland, 446 U.S. at 694. Accord Agan v. Singletary, 12 F. 3d 1012, 1018 (11th Cir. 1994).
25As noted in the first section of this petition, there were repeated efforts by both the trial judge and the prosecutor to diminish the jurors' sense of responsibility, in violation of Caldwell v. Mississippi, 472 U.S. 320 (1985), as well as the attempt to shift the burden of proof. Trial counsel objected to these arguments, but appellate counsel failed to raise them on appeal. Mr. Diaz submits that all of these errors must be considered in assessing prejudice, whether the errors were objected to or not. Cf. Martinez v. State, No. SC90952, Slip op. at 16 (Fla. June 15, 2000) ("it is appropriate to consider both the preserved and unpreserved errors in determining whether the preserved error was harmless beyond a reasonable doubt").
26Mr. Diaz's two sisters and a cousin testified (Supp. RII. 702-730, 731-62, 763-768)
41 the mother and children with a machete (Id. at 709-10). The children began receiving psychiatric treatment at young ages because of this abuse (Id. at 710-11, 7426). All of the children's adult lives have been damaged by the childhood abuse (Id. at 712-14, 742c). Mr. Diaz was especially affected by the abuse because he was the oldest and felt he should protect the younger children and because he was very close to his mother and tried to protect her (Id. at 714-15, 740).
Dr. James Larson described Mr. Diaz's childhood and family background (Supp. RII. 632-33), explaining that this background "had a profound effect on his emotional development" and "created in him a predisposition to impulsivity, and interfered with his ability to benefit from an educational environment" (Supp.
RII. 634-35). During the evaluation, Mr. Diaz was cooperative but guarded, not volunteering information, which Dr. Larson concluded was "indicative as part of his personality disturbance" (Supp. RII. 639), and correlated to his abusive upbringing (Supp. RII. 640). Dr. Larson diagnosed Mr. Diaz as suffering from borderline personality disorder (Id. at 640-42).
Dr. Marina, a clinical psychologist, conducted psychological testing and reviewed background information (Supp. RII. 943-47). Her evaluation revealed no antisocial indications (Id. at 951-52), and she diagnosed Mr. Diaz as suffering from borderline personality disorder and narcissistic personality disorder (Id. at
952-56). These disorders developed as a result of Mr. Diaz's abusive childhood (Id. at 957-59). Dr. Marina described Mr. Diaz's extensive substance abuse (Id. at 962-63), and explained that he was drinking alcohol and injecting cocaine on the day of the offense (Id. at 977-79). She concluded that at the time of the offense, Mr.
Diaz's capacity to conform his conduct to the requirements of law was substantially impaired and Mr. Diaz suffered from an extreme mental or emotional disturbance at the time of the offense (Id. at 977).
Looking at the totality of the mitigation against the aggravation, it is clear that Mr. Diaz is entitled to
42 relief. Williams. It must be also be considered that an aggravator was struck on appeal, that the jurors were repeatedly encouraged by the trial judge and the prosecutor that it was the judge, not the jury, that had the ultimate responsibility for the sentence, that neither of the weightiest aggravators under Florida law--"cold, calculated, and premeditated," and heinous, atrocious, and cruel"--are involved here, and, of course, that the
State failed to prove that Mr. Diaz was the shooter, as it conceded (R. 788 ("there will be no evidence as to who the actual shooter of [the victim] was"). At trial, the sentencing court found no mitigation, a finding that this
Court relied on when determining that the striking of an aggravator did not require resentencing. Diaz, 513 So.
2d at 1049. See Rose v. State, 675 So. 2d 567 (Fla. 1996). Mr. Diaz is entitled to relief under Strickland and
Williams.
2. MR. DIAZ IS ENTITLED TO AN EVIDENTIARY HEARING. Mr. Diaz argued that the trial court failed to accept his allegations as true and order an evidentiary hearing on various claims, as well as the trial court should have been disqualified. Because the Court deferred to the lower court's order and never independently determined his entitlement to an evidentiary hearing, Mr. Diaz reasserts these claims. a. Biased Judge. Aside from alleging that the order denying 3.850 relief resulted from an ex parte communication,27 Mr. Diaz had sought to recuse Judge Donner on numerous occasions. Mr. Diaz's first motion was premised upon the conflict of interest Judge Donner would face in adjudicating claims in Mr. Diaz's 3.850 motion which contended that the judge's actions at trial resulted in a denial of Mr. Diaz's constitutional rights
(Supp. RII. 294-326).28 The second motion to disqualify was grounded on Judge Donner's post-trial conduct in
27This was the only allegation regarding the lower court's bias that was addressed by the Court on appeal. Diaz v. Dugger, 719 So. 2d at 867-68.
28For example, the Rule 3.850 motion alleged that Judge Donner's actions in not providing the trial experts, Drs. Haber and Castiello, sufficient time to conduct proper mental health evaluations, in not requesting
43 granting an interview regarding Mr. Diaz to reporter Sylvia Gomez, whose strong impression was that Judge
Donner was racially prejudiced against Mr. Diaz (Supp. RII. 337-39). The motion contained a supporting affidavit from one of Mr. Diaz's lawyers attesting to her conversations with Ms. Gomez. At the beginning of the evidentiary hearing, Mr. Diaz attempted to proffer the videotape of Judge Donner's interview with Ms. Gomez, but the court refused to hear the proffer (Supp. RII. 619-21).29
Judge Donner was biased and was unable to provide Mr. Diaz with a fair and impartial determination of his issues at trial and in postconviction. A judge's ethical canons prohibit public statements about pending cases. Porter v. Singletary, 49 F. 3d 1483, 1489 (11th Cir. 1995). "Canon 3(B)(9) requires a judge to make no public comment that might reasonably be expected to affect the outcome or fairness of a case pending or impending in any court." Id. at 1489 n.12. Mr. Diaz submits that if an evidentiary hearing is granted by the
Court, a new judge should be assigned. b. Competency. Mr. Diaz challenged the lower court's refusal to grant an evidentiary hearing on the extensive factual allegations set forth in his 3.850 motion that he was not competent to stand trial and that the competency evaluations performed by the court-appointed experts were inadequate. The Court denied this claim, finding that the trial court's summary denial of the claim was supported by competent and substantial evidence. Diaz,
719 So. 2d at 868. As the Court recognized in Stephens, the Court erred in deferring to this finding by the lower court.
Mr. Diaz's 3.850 motion alleged extensive facts which must be accepted as true. Freeman v. State,
thorough mental health evaluations, and in allowing the experts to report to her in an ex parte hearing violated Mr. Diaz's due process rights (Supp. RII. 302).
29Mr. Diaz sought a writ of prohibition, which was denied over the dissent of Justices Barkett and Overton. Diaz v. Donner, Case No. 77,410 (Order dated May 22, 1991).
44 2000 WL 728622 at *3 (Fla. June 8, 2000). The motion contained extensive proffers of two experts, Dr. Dorita
Marina and Dr. Luis Francis. Both conducted lengthy examinations of Mr. Diaz in Spanish, reviewed extensive background information on Mr. Diaz and interviewed family members, and found that Mr. Diaz was not competent to stand trial. See Initial Brief at 17-20.30 These allegations were not refuted by the record. The experts only evaluated Mr. Diaz's competency to be tried with counsel, not his competency to waive counsel or to represent himself. The Court overlooked the extensive nature of the proffers made by Mr. Diaz, as did the lower court in summarily denying the claim. An evidentiary hearing is clearly warranted. Mason v. State, 489
So. 2d 734 (Fla. 1986). c. Brady and Giglio claims. Mr. Diaz's appeal also alleged the improper summary denial of violations of both
Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 763 (1972). In its answer brief to this Court, the State asserted that, as to Mr. Diaz's factual allegation below that witness Gajus had a prearranged deal with the State of Florida in exchange for his testimony against Mr. Diaz, that a Henry31 violation occurred based on information discovered in the State Attorney's Office files, and that Gajus had told
Mr. Diaz's collateral counsel that he lied about testifying that Mr. Diaz admitted complicity to him, "was only that, an allegation" (Answer Brief at 38). A postconviction motion is supposed to contain factual allegations.
See Fla. R. Crim. P. 3.850 (c)(6) ("the motion shall be under oath and include . . . a brief statement of the facts
(and other conditions) relied on in support of said motion"). Factual allegations pled in a Rule 3.850 must be
30Even the State acknowledged in its brief to this Court that Dr. Marina "gave an excruciatingly detailed psychological history, relating to Appellant's abuses as a child, relationships with women, work history, abuse of drugs and alcohol, and medical conditions such as hypoglycemia and hemorrhoids" (Answer Brief at 30- 31).
31See United States v. Henry, 447 U.S. 264 (1980).
45 accepted as true or a hearing must be ordered. Lightbourne v. Dugger, 549 So. 2d 1364 (Fla. 1989); Freeman v. State, 2000 WL 728622 (Fla. June 8, 2000). The State further contended that Mr. Diaz's allegations were refuted by the record because Gajus testified at trial that he had not been promised anything in exchange for his testimony (Answer Brief at 38). This was, of course, Mr. Diaz's point and why these facts were raised as a
Brady/Giglio violation. An evidentiary hearing is clearly warranted.
46 CONCLUSION AND PRAYER FOR RELIEF
In light of the foregoing, Mr. Diaz prays for the following relief (1) That the State be ordered to show cause why this Petition should not be granted; (2) That oral argument be scheduled; (3) That Mr. Diaz be afforded a new direct appeal or a new trial based on appellate counsel's failure to raise significant and uncontroverted reversible error on Mr. Diaz's direct appeal; (4) That Mr. Diaz be granted a resentencing proceeding due to ineffective assistance of counsel; (5) That Mr. Diaz be granted an evidentiary hearing on the sufficiently-pled allegations contained in his Rule 3.850 motion, and that such evidentiary hearing be conducted before an impartial tribunal; (6) That Mr. Diaz be granted any other relief that is just and proper under the circumstances set forth in this Petition.
I HEREBY CERTIFY that a true copy of the foregoing Petition has been furnished by United States
Mail, first class postage prepaid, to all counsel of record on September 11, 2000.
TODD G. SCHER Florida Bar No. 0899641 Litigation Director CCRC-South
101 NE 3d Avenue Suite 400 Ft. Lauderdale, FL 33301 (954) 713-1284 Attorney for Petitioner
47 Copies furnished to:
Fariba Komeily Assistant Attorney General Rivergate Plaza, Suite 950 444 Brickell Avenue Miami, FL 33131
48