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In the Supreme Court of Florida Alvin Leroy Morton

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In the Supreme Court of Florida Alvin Leroy Morton IN THE SUPREME COURT OF FLORIDA ALVIN LEROY MORTON, Appellant, v. CASE No. SC06-2091 STATE OF FLORIDA, Appellee. ___________________________/ ON APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, IN AND FOR PASCO COUNTY, FLORIDA ANSWER BRIEF OF APPELLEE BILL McCOLLUM ATTORNEY GENERAL SCOTT A. BROWNE ASSISTANT ATTORNEY GENERAL Florida Bar No. 0802743 Concourse Center 4 3507 East Frontage Road, Suite 200 Tampa, Florida 33607-7013 Telephone: (813) 287-7910 Facsimile: (813) 281-5501 COUNSEL FOR APPELLEE TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................ ii PRELIMINARY STATEMENT ........................................ v STATEMENT OF THE CASE AND FACTS............................... 1 SUMMARY OF THE ARGUMENT ..................................... 23 ARGUMENT.................................................... 25 ISSUE I ................................................ 25 WHETHER THE TRIAL COURT ERRED IN DENYING MORTON’S CLAIM THAT COUNSEL WAS INEFFECTIVE FOR FAILING TO INVESTIGATE AND PRESENT BACKGROUND EVIDENCE IN MITIGATION DURING THE PENALTY PHASE. (STATED BY APPELLEE). ISSUE II............................................... 46 WHETHER THE TRIAL COURT ERRED IN DENYING MORTON’S CLAIMS THAT HE WAS DENIED A COMPETENT MENTAL HEALTH EXAMINATION BELOW AND DENIED EFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO PROVIDE ADEQUATE BACKGROUND MATERIAL TO THE MENTAL HEALTH EXPERT. (STATED BY APPELLEE). ISSUE III .............................................. 77 WHETHER TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO OFFER INTO EVIDENCE A CO-DEFENDANT’S LIFE SENTENCE. (STATED BY APPELLEE). ISSUE IV............................................... 79 WHETHER THE TRIAL COURT ERRED IN MAKING RULINGS ON THE ADMISSION OF EXPERT TESTIMONY AND JUDICIAL NOTICE DURING THE EVIDENTIARY HEARING BELOW. (STATED BY RESPONDENT). ISSUE V ................................................ 87 WHETHER THE TRIAL COURT ERRED IN SUMMARILY DENYING MORTON’S NEWLY DISCOVERED EVIDENCE CLAIM BASED UPON ROPER V. SIMMONS. CONCLUSION.................................................. 90 CERTIFICATE OF SERVICE ...................................... 90 CERTIFICATE OF FONT COMPLIANCE............................... 90 i TABLE OF AUTHORITIES Cases Adams v. Wainwright, 709 F.2d 1443 (11th Cir. 1983), cert. denied, 464 U.S. 1663 (1984)............................... 51 Ake v. Oklahoma, 470 U.S. 68 (1985) ........................................ 53 Anderson v. Sirmons, 476 F.3d 1131 (6th Cir. 2007).............................. 55 Asay v. State, 769 So. 2d 974 (Fla. 2000)................................. 61 Atwater v. State, 788 So. 2d 223 (Fla. 2001)................................. 33 Bertolotti v. Dugger, 883 F.2d 1503 (11th Cir. 1989) ............................. 63 Breedlove v. State, 692 So. 2d 874, 878 (Fla. 1997) ........................ 45, 75 Brown v. State, 755 So. 2d 616 (Fla. 2000)................................. 57 Carroll v. State, 815 So. 2d 601 (Fla. 2002)................................. 56 Cherry v. State, 659 So. 2d 1069 (Fla. 1995)................................ 43 Cherry v. State, 781 So. 2d 1040 (Fla. 2001) ................................ 57 Davis v. State, 604 So. 2d 794 (Fla. 1992)................................. 62 Demps v. State, 462 So. 2d 1074 (Fla. 1984) ................................ 26 Dill v. Allen, 488 F.3d 1344 (11th Cir. 2007) ............................. 80 Downs v. State, 740 So. 2d 506 (Fla. 1999)............................. 33, 61 Dufour v. State, 905 So. 2d 42 (Fla. 2005).................................. 53 ii Elledge v. Dugger, 823 F.2d 1439 (11th Cir. 1987) ............................. 64 Engle v. Dugger, 576 So. 2d 696 (Fla. 1991)................................. 57 Gaskin v. State, 822 So. 2d 1243 (Fla. 2002) ................................ 60 Gilliam v. State, 514 So. 2d 1098 (Fla. 1987) ................................ 83 Goldfarb v. Robertson, 82 So. 2d 504 (Fla. 1955).................................. 26 Gorby v. State, 819 So. 2d 664 (Fla. 2002)......................... 33, 36, 58 Grossman v. State, 932 So. 2d 192 (Fla. 2006)................................. 89 Hill v. State, 921 So. 2d 579 (Fla. 2006)................................. 89 Hodges v. State, 885 So. 2d 338 (Fla. 2003)............................. 43, 44 Holland v. State, 773 So. 2d 1065 (Fla. 2000) ................................ 85 Huff v. State, 495 So. 2d 145 (Fla. 1986)............................. 79, 84 Johnson v. State, 769 So. 2d 990 (Fla. 2001)................................. 50 Jones v. State, 732 So. 2d 313 (Fla. 1999)................................. 61 Kearse v. State, 2007 Fla. LEXIS 1534 (Fla. August 30, 2007) ................ 89 Lockhart v. Fretwell, 506 U.S. 364 (1993) ....................................... 27 Maharaj v. State, 684 So. 2d 726 (Fla. 1996)................................. 88 Monlyn v. State, 894 So. 2d 832 (Fla. 2004)................................. 30 Moore v. State, 820 So. 2d 199 (Fla. 2002)................................. 53 Morton v. State, 789 So. 2d 324 (Fla. 2001)................................. 88 iii Pagan v. State, 830 So. 2d 792 (Fla. 2002)................................. 85 Penalver v. State, 926 So. 2d 1118 (Fla. 2006) ................................ 85 Porter v. State, 788 So. 2d 917 (Fla. 2001)................................. 25 Provenzano v. Singletary, 148 F.3d 1327 (11th Cir. 1998) ............................. 53 Rose v. State, 617 So. 2d 291 (Fla. 1993)................................. 62 Rutherford v. State, 727 So. 2d 216 (Fla. 1998)............................. 74, 75 Schoenwetter v. State, 931 So. 2d 857 (Fla.), cert. denied, 127 S.Ct. 587, 166 L.Ed.2d 437 (2006)............... 79 Simmons v. State, 934 So. 2d 1100 (Fla. 2006) ................................ 84 State v. Riechmann, 777 So. 2d 342 (Fla. 2000)................................. 25 State v. Sireci, 502 So. 2d 1221 (Fla. 1987) ................................ 58 Strickland v. Washington, 466 U.S. 668 (1984) .................... 26, 27, 30, 35, 41, 43 Terry v. State, 668 So. 2d 954 (Fla. 1996)................................. 85 Tompkins v. Dugger, 549 So. 2d 1370 (Fla. 1989) ............................ 45, 75 Waters v. Thomas, 46 F.3d 1506 (11th Cir.), cert. denied, 516 U.S. 856 (1995) ................................ 26 White v. Singletary, 972 F.2d 1218 (11th Cir. 1992) ............................. 50 Windom v. State, 886 So. 2d 915 (Fla. 2004)................................. 30 Other Authorities Diagnostic and Statistical Manual of Mental Disorders, Text Revision .................................................. 70 iv PRELIMINARY STATEMENT References to the record: References to the direct appeal record will be designated as (DAR V#, page#). References to the resentencing record will be designated as (RS V#, page#). References to the post-conviction record will be designated as (V#, page #). v STATEMENT OF THE CASE AND FACTS (A) Trial This Court provided the following factual summary in Morton’s direct appeal opinion: In the late evening of January 26 or early morning of January 27, 1992, appellant Alvin LeRoy Morton, accompanied by Bobby Garner and Tim Kane, forcibly entered the home of John Bowers and his mother Madeline Weisser. Two other individuals, Chris Walker and Mike Rodkey, went with them to the house but did not enter. Morton carried a shotgun and one of the others possessed a “Rambo” style knife. They began looking around the living room for something to take when Bowers and Weisser entered the room from another area of the house. Morton ordered the two of them to get down on the floor, and they complied. Bowers agreed to give them whatever they wanted and pleaded for his life but Morton replied that Bowers would call the cops. When Bowers insisted that he would not, Morton retorted, “That’s what they all say,” and shot Bowers in the back of the neck, killing him. Morton also attempted to shoot Weisser, but the gun jammed. He then tried to stab her, but when the knife would not penetrate, Garner stepped on the knife and pushed it in. Weisser ultimately was stabbed eight times in the back of the neck and her spinal cord was severed. Before leaving the scene, either Garner or Morton cut off one of Bowers’ pinky fingers. They later showed it to their friend Jeff Madden. Acting on a tip, police and firefighters went to the victims’ residence, where the mattresses had been set on fire, and discovered the bodies. Morton was later found hiding in the attic of his home. The murder weapons were discovered underneath Garner’s mother’s trailer. Morton later confessed to shooting Bowers and helping make the first cut on Weisser. Morton v. State, 689 So. 2d 259, 260-261 (Fla. 1997). On resentencing, the prior sworn deposition testimony of one of the conspirators, Timothy Kane, who was fourteen at the time of the murders, was offered into evidence. (RS V1, 189; RS 1 V7, 794). Kane recounted the following about Morton’s role: “He was a leader. I mean, as far as he was the oldest and he was the one that this was all his idea. This was...He was doing this here.” (RS V2, 201). Kane testified that he had previously observed the sawed off shotgun and knife used in the murders in Morton’s bedroom. (RS V2, 221). After noting that the front door was kicked in, Kane testified about what transpired in the victims’ house. (RS V2, 203). Once inside the victims’ house, the male victim came out asking what’s going on. Morton told the man to get down on the ground. (RS V2, 204). Then he heard a different voice,
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