IN THE SUPREME COURT OF FLORIDA

CASE NO. SC06-36

LEONARDO FRANQUI,

Petitioner,

vs.

JAMES R. MCDONOUGH, Acting Secretary, Department of Corrections, State of Florida,

Respondent.

ON PETITION FOR WRIT OF HABEAS CORPUS

RESPONSE

CHARLES J. CRIST, JR. Attorney General Tallahassee, Florida

SANDRA S. JAGGARD Assistant Attorney General Florida Bar No. 0012068 Office of the Attorney General Rivergate Plaza -- Suite 650 444 Brickell Avenue Miami, Florida 33131 PH. (305) 377-5441 FAX (305) 377-5655

TABLE OF CONTENTS INTRODUCTION ...... 1

STATEMENT OF THE CASE AND FACTS ...... 1

ARGUMENT ...... 2

I. APPELLATE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RAISE AN ISSUE REGARDING THE DENIAL OF THE MOTION TO SUPPRESS...... 2

II. APPELLATE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RAISE AN ISSUE REGARDING COMMENTS ABOUT THE WEIGHING PROCESS...... 8

III. THE CLAIM THAT APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO CLAIM THAT THE CONFESSION SHOULD HAVE BEEN SUPPRESSED BECAUSE THE CONFESSION WAS NOT RECORDED SHOULD BE DENIED...... 15

IV. APPELLATE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RAISE AN ISSUE CONCERNING THE REFUSAL TO ALLOW HIM TO CALL THE PROSECUTOR AS A WITNESS..... 18

V. APPELLATE COUNSEL WAS NOT INEFFECTIVE FOR RAISING THE CLAIM THAT THE TRIAL COURT REJECTED MITIGATION... 24

CONCLUSION ...... 28

CERTIFICATE OF SERVICE ...... 28

CERTIFICATE OF COMPLIANCE ...... 28

ii INTRODUCTION

Petitioner will be referred to as Defendant. The prosecution and Respondent will be referred to as the State.

The symbols AR.@ and AT.@ will refer to the record on appeal and transcript of proceedings from Defendant=s direct appeal. The symbol “PCR.” will refer to the record on the post conviction appeal.

STATEMENT OF THE CASE AND FACTS

In accordance with Fla. R. Crim. P. 3.851(b)(2), this petition is being pursued concurrently with the appeal from the order denying Defendant=s motion for post conviction relief. See

Franqui v. State, FSC Case No. SC04-2380. The State will therefore rely on its statements of the case and facts contained in its brief in that matter.

1 ARGUMENT

I. APPELLATE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RAISE AN ISSUE REGARDING THE DENIAL OF THE MOTION TO SUPPRESS.

Defendant first asserts that his appellate counsel was ineffective for failing to raise an issue regarding the denial of the motion to suppress on both the appeals from the conviction and from resentencing. Defendant appears to argue that appellate counsel should have contended that the confession should have been suppressed because Defendant could not validly waive his Miranda rights because allegedly had a low IQ and paranoid schizophrenia. However, Defendant is entitled to no relief as the these issues were not preserved and litigating the motion to suppress on the grounds that were preserved would have been meritless.

The standard for evaluating claims of ineffective assistance of appellate counsel is the same as the standard for determining whether trial counsel was ineffective. Williamson v. Dugger,

651 So. 2d 84, 86 (Fla. 1994), cert. denied, 516 U.S. 850

(1995); Wilson v. Wainwright, 474 So. 2d 1162, 1163 (Fla. 1985).

In Strickland v. Washington, 466 U.S. 668 (1984), the United

States Supreme Court announced the standard under which claims of ineffective assistance must be evaluated. A petitioner must demonstrate both that counsel's performance was deficient, and

2 that the deficient performance prejudiced the defense.

Deficient performance requires a showing that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and a fair assessment of performance of a criminal defense attorney:

requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that criminal defense counsel's conduct falls within the wide range of reasonable professional assistance, that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

Strickland, 466 U.S. at 694-695. The test for prejudice requires the petitioner to show that, but for counsel's unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different. Id. at

694.

Moreover, appellate counsel cannot be deemed ineffective for failing to raise an issue that was not preserved. Groover v.

Singletary, 656 So. 2d 424 (Fla. 1995); Hildwin v. Dugger, 654

So. 2d 107 (Fla.), cert. denied, 516 U.S. 965 (1995); Breedlove v. Singletary, 595 So. 2d 8, 11 (Fla. 1992). Nor may counsel be considered ineffective for failing to raise an issue that was without merit. Kokal v. Dugger, 718 So. 2d 138, 143 (Fla. 1998);

3 Groover, 656 So. 2d at 425; Hildwin, 654 So. 2d at 111;

Breedlove, 595 So. 2d at 11.

With regard to the claim that counsel should have claimed that the lower court erred in denying the motion to suppress because the mental health evidence allegedly showed that

Defendant’s confession should have been suppressed, Defendant is entitled to no relief. Trial counsel did not challenge the admission of the confession based on mental health issues.

Instead, he asserted that the confession should be suppressed because Defendant had invoked his Sixth Amendment right to counsel in the case under which he had been arrested and had signed a form attempting to invoke his Fifth Amendment right to counsel and to remain silent anticipatorily. Further, Defendant asserted that his confession should have been suppressed because the police ignored Defendant’s alleged invocation of his rights, never properly read Defendant his rights, beat and threatened

Defendant with additional beatings and promised Defendant a 15 year sentence. Further, Defendant claimed that his conversation with his wife should have been suppressed because he has an expectation of privacy when he spoke to her. Since Defendant did not claim that his confession should have been suppressed because of mental health issues, any such issue was not preserved for review. Perez v. State, 919 So. 2d 347, 359 (Fla.

4 2005). Since the issue was not preserved, appellate counsel cannot be deemed ineffective for failing to raise it. Groover,

656 So. 2d at 425; Hildwin, 654 So. 2d at 111; Breedlove, 595

So. 2d at 11. The claim should be denied. 1

To the extent Defendant is claiming that appellate counsel was ineffective for failing to raise the issues that were actually litigated at the time of trial, Defendant is still entitled to no relief. While Defendant asserted that the signing of a form at a first appearance on other charges should have been deemed sufficient to invoke his Miranda rights, this

Court has held that the signing of such forms is not an effective invocation of one’s Miranda rights. Sapp v. State,

690 So. 2d 581 (Fla. 1997). Thus, any issue about the denial of this portion of the suppression claim would be meritless. As such, appellate counsel cannot be deemed ineffective for failing to raise this issue. Kokal, 718 So. 2d at 143; Groover, 656 So.

2d at 425; Hildwin, 654 So. 2d at 111; Breedlove, 595 So. 2d at

11.

With regard to the claims concerning the alleged invocation

1 The same is true of any claim regarding the length of the interrogation. Moreover, this Court has repeatedly rejected such claims. Perez, 919 So. 2d at 361-62; Chavez v. State, 832 So. 2d 730, 749 (Fla. 2002). These cases apply with even more force here, as Defendant was being interrogated about three separate cases and was given breaks and even allowed to speak to

5 of Defendant’s rights, the alleged failure to read Defendant his rights properly and the alleged beatings, threats and promise,

Defendant is again entitled to no relief. The only evidence presented at the time of trial about these circumstances was

Defendant’s testimony. However, all of the police officers involved in interrogating Defendant testified to the contrary.

The trial court found the officers credible and Defendant not credible. This Court has recognized that it is required to accept the credibility findings of trial courts. Zakrzewski v.

State, 866 So. 2d 688, 696 (Fla. 2003). Moreover, this Court has rejected similar claims even without an express credibility finding. Johnson v. State, 696 So. 2d 326, 329-31 (Fla. 1997).

As such, any claim that the trial court erred in denying the motion to suppress on these bases would have been without merit.

Since the issue would have been without merit, appellate counsel cannot be deemed ineffective for failing to raise it.

Kokal, 718 So. 2d at 143; Groover, 656 So. 2d at 425; Hildwin,

654 So. 2d at 111; Breedlove, 595 So. 2d at 11. The claim should be denied.

Finally, the record reflects that the State never admitted the statement that Det. Nabut overheard Defendant make to his wife. Since the statements were not admitted, any issue

his wife. 6 regarding the denial of the motion to suppress them would be without merit. Griffin v. State, 639 So. 2d 966, 972 n.4 (Fla.

1994). Since the issue was without merit, appellate counsel cannot be deemed ineffective for failing to raise it. Kokal,

718 So. 2d at 143; Groover, 656 So. 2d at 425; Hildwin, 654 So.

2d at 111; Breedlove, 595 So. 2d at 11. The claim should be denied.

7 II. APPELLATE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RAISE AN ISSUE REGARDING COMMENTS ABOUT THE WEIGHING PROCESS.

Defendant next his appellate counsel was ineffective for failing to raise an issue regarding the State’s comments concerning the weighing process. In discussing the issue,

Defendant does not cite to the comments that he alleges were improper. Defendant does mention that the claim concerns the failure to raise this issue in the original direct appeal.

Moreover, Defendant then refers to the claim raised in the post conviction motion, which concerned a comment made at resentencing. However, Defendant is entitled to no relief because the claim is facially insufficient, procedurally barred and without merit.

To the extent that Defendant is claiming that counsel on the original direct appeal was ineffective, the claim should be denied as facially insufficient. Defendant does not explain what comments were allegedly made or when those comments were allegedly made. Instead, he merely includes a conclusory allegation that comments were made, without even referencing the original direct appeal record. Given the lack of explanation regarding the comments at issue from the original direct appeal, this claim is facially insufficient and should be denied as such. See Patton v. State, 878 So. 2d 368, 380 (Fla. 2004).

8 Further, the claim could not be sufficiently pled. During the original trial, neither the State nor the trial court ever informed the jury that it had a duty to recommend death or was required to recommend death. Since no such comments were made, appellate counsel cannot be deemed ineffective for failing to raise the nonmeritorious issue that they were. Kokal, 718 So.

2d at 143; Groover, 656 So. 2d at 425; Hildwin, 654 So. 2d at

111; Breedlove, 595 So. 2d at 11. The claim should be denied.

With regard to the resentencing appeal, Defendant is again entitled to no relief. Counsel claimed on resentencing appeal that the trial court had erred in making and allowing comments that the jury had a duty to recommend the death penalty.

Initial Brief of Appellant, FSC Case No. SC94269, at 24-30. This

Court rejected the argument:

Next, [Defendant] argues that the trial court erred in instructing and permitting the jury to be instructed by the State during voir dire that it was required to recommend a death sentence if the aggravating circumstances outweighed the mitigating circumstances. During its opening remarks to the initial venire, the trial court stated, “If you believe that the aggravating factors outweigh the mitigating factors, then the law requires that you recommend a sentence of death.” (Emphasis added.) The State argues that this issue was not preserved for appeal because trial counsel did not raise a contemporaneous objection. We disagree. Although defense counsel did not object until a short time after the trial court’s opening remarks were completed, we find the purpose of the contemporaneous objection rule was satisfied in this case, i.e., to

9 place the trial judge on notice that an error may have occurred and provide him or her with the opportunity to correct the error at an early stage of the proceedings.

In Henyard v. State, 689 So. 2d 239 (Fla. 1996), we considered whether a prosecutor’s comments during voir dire that jurors must recommend death when aggravating circumstances outweigh mitigating circumstances misstated the law. See id. at 249-50. We held that the prosecutor’s comments were misstatements of law because “a jury is neither compelled nor required to recommend death where aggravating factors outweigh mitigating factors.” Id.; see also Brooks v. State, 762 So. 2d 879, 902 (Fla. 2000) (stating that prosecutor misstated the law in commenting that jurors must recommend a death sentence unless the aggravating circumstances are outweighed by the mitigating circumstances); cf. Garron v. State, 528 So. 2d 353, 359 & n.7 (Fla. 1988) (finding that it was a misstatement of the law to argue that “when the aggravating factors outnumber the mitigating factors, then death is an appropriate penalty”). For the same reasons expressed in Henyard, we agree with [Defendant] that the trial court’s comment that the law required jurors to recommend a death sentence if the aggravating circumstances outweighed the mitigating circumstances misstated the law. [FN5]

As in Henyard, however, we conclude that [Defendant] was not prejudiced by this error. Despite [Defendant’s] contrary assertions, we find that the trial court’s subsequent comments to prospective jurors during voir dire were consistent with the standard jury instructions. [FN6] More importantly, the trial court did not repeat the misstatement of law when instructing the jury prior to its deliberations. To the contrary, the final jury instructions given in this case were consistent with the standard jury instructions. In addition, the trial court gave defense counsel’s requested instruction apprising the jury that the weighing process was not a mere counting of the aggravating and mitigating circumstances, but rather a reasoned judgment as to what the appropriate sentence should be in light of the nature of the

10 aggravating and mitigating circumstances found to exist. [FN7] This additional instruction was more in accord with Henyard and our seminal decision in State v. Dixon, 283 So. 2d 1, 10 (Fla. 1973), cert. denied, 416 U.S. 943, 40 L. Ed. 2d 295, 94 S. Ct. 1950 (1974), wherein we stressed:

It must be emphasized that the procedure to be followed by the trial judges and juries is not a mere counting process of X number of aggravating circumstances and Y number of mitigating circumstances, but rather a reasoned judgment as to what factual situations require the imposition of death and which can be satisfied by life imprisonment in light of the totality of the circumstances present.

Under these circumstances, we find the trial court’s isolated misstatements of the law during voir dire to be harmless. See Henyard, 689 So. 2d at 250. Further, we find that the trial court did not abuse its discretion in refusing to give the curative instruction requested by defense counsel during voir dire. See Foster v. State, 614 So. 2d 455, 462 (Fla. 1992) (finding trial court did not abuse its discretion in refusing to give instruction on jury's pardon power); Mendyk v. State, 545 So. 2d 846, 850 (Fla. 1989) (stating that there is no requirement that the jury be instructed on its pardon power); see also Dougan v. State, 595 So. 2d 1, 4 (Fla. 1992).

Within this issue, [Defendant] also argues that the trial court erred in permitting the State to instruct the venire that “if mitigation never outweighs the aggravation in your mind, if aggravation is always more powerful, more weighted, than the mitigation, then you vote to recommend the death penalty.” Defense counsel objected to this comment, and in response the trial court informed the jury concerning the law relating to the weighing of aggravating and mitigating circumstances. More importantly, as noted above, the final jury instructions given in this case were consistent with the standard jury instructions. Thus, even assuming

11 that the objected-to comment misstated the law, we conclude any error resulting from this isolated comment made during an extensive jury selection process was harmless. [FN8] See Henyard, 689 So. 2d at 250.

* * * *

[FN5] We also ask that the Committee on Standard Jury Instructions in Criminal Cases review the standard instructions to be certain our opinions in Henyard, Brooks and Garron have been properly considered, and to consider whether additional instructions such as those given by the trial court here should be included in the standard instructions. See note 7, infra. We note, for example, that the Eleventh Circuit’s pattern jury instructions for death penalty cases provide in part:

If, after weighing the aggravating and mitigating factors, you determine that the aggravating factors found to exist sufficiently outweigh the mitigating factors; or, in the absence of mitigating factors, if you find that the aggravating factors alone are sufficient, you may exercise your option to recommend that a sentence of death be imposed rather than some lesser sentence. Regardless of your findings with respect to aggravating and mitigating factors, however, you are never required to recommend a sentence of death.

. . . .

The process of weighing aggravating and mitigating factors to determine the proper punishment is not a mechanical process. The law contemplates that different factors may be given different weights or values by different jurors. In your decision making process, you, and you alone, are to decide what weight is to be given to a particular factor.

12 Your only interest is to seek the truth from the evidence and to determine in the light of that evidence and the Court’s instructions whether to recommend a sentence of death. If you do not recommend a sentence of death, the Court is required by law to impose a sentence other than death, which sentence is to be determined by the Court alone. Let me admonish you again, while you may recommend a sentence of death, you are not required to do so.

Pattern Jury Instructions (Criminal Cases), Offense Instruction 76.4 (Eleventh Circuit District Judges Ass'n 1997) (emphasis added).

[FN6] We do note, however, that the trial court did repeat its prior statement that the law requires the jury to recommend a death sentence if the aggravating circumstances outweigh the mitigating circumstances during individual voir dire of juror Hernandez, who was subsequently removed for cause.

[FN7] In particular, the trial court instructed the jury:

It must be emphasized that the weighing process is not a mere counting of the number of aggravating circumstances and the number of mitigating circumstances. But rather, a reasoned judgment as to what the appropriate sentence in this case in light of the nature and aggravating factors that you find-excuse me, aggravating and mitigating factors that you find.

The record reveals that the latter part of the trial court's written instructions read: “But rather a reasoned judgement as to what the appropriate sentence is in this case in light of the nature of the aggravators and mitigators you find.”

[FN8] At oral argument, [Defendant’s] appellate counsel also argued that the State misstated the law during closing argument in commenting, “If the aggravation is always stronger, always more powerful

13 in your hearts and in your minds, the Judge is going to tell you it's your obligation that you should vote to recommend for the death penalty.” No objection was made to this comment at trial, nor was this issue raised in [Defendant’s] brief. Nevertheless, we take this opportunity to caution prosecutors to avoid using language instructing the jury that it has a duty or obligation to recommend death. See Urbin v. State, 714 So. 2d at 411, 421 (Fla. 1998); Garron, 528 So. 2d at 359.

Franqui v. State, 804 So. 2d 1185, 1192-94 (Fla. 2001). As counsel did raise this issue, he cannot be deemed ineffective for failing to have done so. Moreover, asserting different arguments in support of an issue that was raised on direct appeal or claiming that the argument that was made was inadequate are not grounds to reconsider the rejection of an issue. Rodriguez v. State, 31 Fla. L. Weekly S39, S49 (Fla. Jan.

19, 2006); Thompson v. State, 759 So. 2d 650, 657 n.6 (Fla.

2000). This is particularly true here, as Defendant had merely made conclusory allegations regarding the alleged inadequacy of the argument raised on direct appeal. See Patton v. State, 878

So. 2d 368, 380 (Fla. 2004). As such, this claim should be rejected.

14 III. THE CLAIM THAT APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO CLAIM THAT THE CONFESSION SHOULD HAVE BEEN SUPPRESSED BECAUSE THE CONFESSION WAS NOT RECORDED SHOULD BE DENIED.

Defendant next asserts again that his appellate counsel was ineffective for failing to raise an issue regarding the suppression of the confession. This claim appears to center around the fact that the interrogation was not recorded.

However, this claim should be denied as the underlying issue is unpreserved and without merit.

When Defendant moved to suppress his confession in the trial court, Defendant did not argue that the confession should have been suppressed because the police did not record the interrogation. However, in order to preserve an issue regarding suppression, it is necessary to raise in the trial court the specific argument raised on appeal. Perez, 919 So. 2d at 359;

Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982)(objection must be based on same grounds raised on appeal for issue to be preserved). Since Defendant did not do so, this issue was not preserved for appellate review. Because the issue was unpreserved, appellate counsel cannot be deemed ineffective for failing to raise it. Groover, 656 So. 2d at 425; Hildwin, 654

So. 2d at 111; Breedlove, 595 So. 2d at 11. The claim should be denied.

15 Even if the issue had been preserved, Defendant would still be entitled to no relief. No Florida court has recognized a right for a defendant to have his interrogation recorded. In fact, the existence of such right has been rejected. State v.

Dupont, 659 So. 2d 405, 408 (Fla. 2d DCA 1995). While Defendant suggests in his post conviction brief that Sparkman v. State,

902 So. 2d 253 (Fla. 4th DCA 2005), and Walker v. State, 842 So.

2d 894 (Fla. 2d DCA 2003), address the issue, this is not true.

The issue presented in both of these cases concerns the propriety of redacting statements the police made to the defendants during the interrogation from the tape played to the jury. In fact, this Court has even rejected the claim that a waiver of rights must be made in writing. See Sliney v. State,

699 So. 2d 662 (Fla. 1997)(waiver of rights does not even have to be in writing). A majority of courts to address the issue of whether interrogations must be recorded have refused to compel the record of confessions. United States v. Short, 947 F.2d

1445, 1451 (10th Cir. 1991); Baynor v. State, 736 A.2d 325, 738-

39 (Md. Ct. App. 1999)(collecting cases holding that interrogations do not have to be recorded). This Court has recognized that counsel cannot be deemed deficient for failing to raise a claim based on a right that had not been found to exist at the time of trial. See Muhammad v. State, 426 So. 2d

16 533, 538 (Fla. 1982)(there is no “deficient conduct,” where a claim is based upon rights which are not established at the time of trial). Since the right that Defendant asserts his appellate counsel should have asserted still does not exist, appellate counsel cannot be deemed ineffective for failing to assert it.

See Phillips v. State, 894 So. 2d 28, 36 (Fla. 2004). The claim should be denied.

17 IV. APPELLATE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RAISE AN ISSUE CONCERNING THE REFUSAL TO ALLOW HIM TO CALL THE PROSECUTOR AS A WITNESS.

Defendant next his appellate counsel was ineffective for failing to raise an issue regarding the fact that he was precluded from calling Assistant State Attorney Kevin DiGregory as a witness. Defendant suggests that he should have been allowed to present testimony from Mr. DiGregory regarding his participation in the interrogation of Defendant and his involvement in the filing of the case again Defendant. However, this claim should be denied as the underlying claim is unpreserved and without merit.

At the suppression hearing held in the Hialeah case, testimony and arguments from which were subsequently adopted at the suppression hearing in this case, Defendant attempted to call Mr. DiGregory as a witness “limited solely to whether he was aware that my client was in custody and whether he was aware that the Public Defender’s Office had been appointed to represent [Defendant].” (HT. 345) Defendant now asserts that

Mr. DiGregory should have been called to testify regarding “what instructions he gave to his interrogators, what tactics he approved, why he permitted the questioning to extend approximately twenty hours’ time; whether he prepared a memorandum or gave other instructions telling the officers the

18 absolute edge to which they could go; and whether he intentionally manipulated the judicial system by filing cases in case an order that they would fall to a favored judge under the

Miami ‘Low Number Rule.’” Petition at 8. As these are not the issues about which Defendant proposed to call Mr. Digregory at the time of the ruling, this issue is not preserved.

Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982)(objection must be based on same grounds raised on appeal for issue to be preserved). Since the issue is unpreserved, appellate counsel cannot be deemed ineffective for failing to raise it. Groover,

656 So. 2d at 425; Hildwin, 654 So. 2d at 111; Breedlove, 595

So. 2d at 11.

To the extent that Defendant is attempting to claim that his appellate counsel was ineffective for failing to raise the issue that was presented to the lower court, he is entitled to no relief. In Eagan v. DeManio, 294 So. 2d 639 (Fla. 1974), this

Court held that it was improper for a trial judge to compel state attorneys to testify unless a defendant could show that he had exhausted other means to obtain the information sought from the prosecutors and that such other means had been fruitless.

See also State v. Donaldson, 763 So. 2d 1252, 1255 (Fla. 3d DCA

2000). Here, Defendant did not show that he could not have obtained information he sought through other means. This is

19 particularly true as Sgt. Rivers actually testified at the suppression hearing that Mr. DiGregory was present when the issue of bring Defendant and San Martin from the jail to the police station was discussed. (HT. 144-45) The only reason that Defendant proffered regarding why Sgt. Rivers account of the discussion would not suffice was that Mr. DiGregory’s testimony might support a finding that he committed an ethical violation in allowing the officers to speak to Defendant, whom he should have known was represented in the Van Ness case. (HT.

347) However, in Suarez v. State, 481 So. 2d 1201, 1206 (Fla.

1985), this Court held that even if a prosecutor had committed an ethical violation in connection with obtaining a statement from a defendant, the ethical violation would not provide grounds to suppress the statement. As such, the trial court did not abuse its discretion in refusing to allow Defendant to call

Mr. DiGregory as a witness. Since the issue is without merit, appellate counsel cannot be deemed ineffective in failing to raise it. Kokal, 718 So. 2d at 143; Groover, 656 So. 2d at 425;

Hildwin, 654 So. 2d at 111; Breedlove, 595 So. 2d at 11. The claim should be denied.

The same analysis would also apply to attempting to call Mr.

DiGregory to testify concerning the new issues that Defendant proposes in his petition if they were appropriately before the

20 court. Any instructions or comments Mr. DiGregory may have made to the officers who actually interrogated Defendant could be elicited from those officers. Moreover, the reason why the interrogation session was extended was explained at the suppression hearing: Defendant was interrogated by different officers regarding three different crimes and gave full oral and recorded statements regarding each of these crimes. As such,

Defendant has not made the showing required by Eagan, and there would be no abuse of discretion in refusing to allow him to question the prosecutor about this issue. Because the underlying issue is meritless, appellate counsel cannot be deemed ineffective for failing to raise it. Kokal, 718 So. 2d at 143; Groover, 656 So. 2d at 425; Hildwin, 654 So. 2d at 111;

Breedlove, 595 So. 2d at 11. The claim should be denied.

Finally, Defendant does not allege what efforts he has made to investigate any alleged “manipulation” of the case assignment system short of seeking to question the prosecutor. Such a lack of pleading is particularly important as Defendant’s own pleadings refute any assertion that the State could have manipulated the case assignment system. In his motion for post conviction relief, Defendant acknowledged that the reason the cases ended up assigned to the particular division was that one of the codefendant’s had a probation revocation pending in that

21 division at the time these cases occurred. (PCR. 119) The

State had no role in deciding that Defendant would commit this crime with this codefendant at that time. Instead, it was

Defendant who elected to commit this crime and to do so with an individual who already had pending cases. Because of this decision by Defendant, his cases were assigned to the same judge who was already handling the codefendant’s prior case.

Defendant offers no explanation of how the State could have known that Defendant would make his decision to commit this crime with this codefendant and have pre-arranged for a particular judge to be assigned to the codefendant’s case so that when this crime was committed, it would fall before this judge. As such, it does not appear that it was possible for the

State to have manipulated the case assignment system. Given this impossibility, Defendant has not made a sufficient showing under Eagan of a need to question the prosecutor. As such, the trial court would not have abused its discretion in refusing to permit him from doing so, and any claim that the trial court did so would be without merit. Since appellate counsel cannot be deemed ineffective for failing to raise a nonmeritorious issue, the claim should be denied. Kokal, 718 So. 2d at 143; Groover,

656 So. 2d at 425; Hildwin, 654 So. 2d at 111; Breedlove, 595

So. 2d at 11.

22

23 V. APPELLATE COUNSEL WAS NOT INEFFECTIVE FOR RAISING THE CLAIM THAT THE TRIAL COURT REJECTED MITIGATION.

Defendant finally asserts that his appellate counsel was ineffective for failing to raise the issue of the rejection of the fact that the bullet Defendant fired into Off. Bauer did not cause the fatal wound adequately. However, this claim should be denied as it is procedurally barred, meritless and facially insufficient.

As Defendant seems to admit tacitly, appellate counsel did claim on resentencing appeal that the trial court had erred in failing to consider the fact that the bullet Defendant fired did not cause the fatal wound to Off. Bauer. Initial Brief of

Appellant, FSC Case No. SC94,269, at 40-43. Counsel argued that since the trial court found that Defendant had not fired the fatal shot, the Enmund/Tison2 culpability requirement for imposition of a death sentence in a felony murder case was not satisfied. Counsel also asserted that the trial court had erred in failing to finding this fact mitigating and to assign weight to this mitigation. Id. This Court rejected these arguments:

[Defendant] also argues that the trial court failed to find and weigh all of the nonstatutory mitigating evidence presented at resentencing. Specifically, [Defendant] contends that the trial

2 Enmund v. Florida, 458 U.S. 782, 797 (Fla. 1982); Tison v. Arizona, 481 U.S. 137, 158 (1987).

24 court should have found and weighed in mitigation his family history and abandonment by his natural parents, his newfound maturity while incarcerated, and the fact that he did not fire the fatal bullet. This Court has stated that a trial court in its written order must evaluate each mitigating circumstance offered by the defendant and decide if it has been established and, in the case of nonstatutory factors, if it is of a truly mitigating nature. See Campbell v. State, 571 So. 2d 415, 419 (Fla. 1990). A trial court “must find as a mitigating circumstance each proposed factor that is mitigating in nature and has been reasonably established by the greater weight of the evidence.” Id. (footnote omitted). However, a trial court may reject a claim that a mitigating circumstance has been proven, provided the record contains competent substantial evidence to support the rejection. See Mansfield v. State, 758 So. 2d 636, 646 (Fla. 2000); Ferrell v. State, 653 So. 2d 367, 371 (Fla. 1995).

* * * * [Defendant] also contends that the trial court failed to find and weigh as a mitigating circumstance the fact that he did not fire the fatal bullet. Although we have indicated that the fact that a defendant did not fire the fatal shot may be a mitigating factor, [FN11] whether it actually is depends on the particular facts of the case. Here, it is uncontradicted that [Defendant] shot at Officer Bauer, striking him in the hip. Although this wound alone was not fatal, the medical examiner testified that his findings were consistent with the conclusion that Officer Bauer was first shot in the hip by a bullet which ricocheted off the pillar he took cover behind, causing him to fall forward and be struck by the fatal bullet fired by Gonzalez. Under the particular facts in this case, we find that the trial court did not err in considering, but ultimately rejecting, the fact that [Defendant] did not fire the fatal bullet as a mitigating circumstance.

Lastly, [Defendant] challenges the proportionality of his death sentence. In so doing, [Defendant] first contends that the trial court failed to include in its sentencing order findings that support the Enmund-

25 Tison culpability requirement. [FN12] We disagree. In its sentencing order, the trial court expressly found that [Defendant] was prepared to use lethal force to eliminate any impediment to his robbery plan and did not hesitate to actually use such force during the bank robbery. Indeed, the record demonstrates that [Defendant] surveyed the bank the day before the crime and observed the bank tellers being escorted to their drive-through booths; he came to the bank armed with a .9-mm handgun; and he fired the gun at Officer Bauer, striking him in the hip. [Defendant] was a direct, active participant in the bank robbery which resulted in Officer Bauer's death, and his actions not only exhibit a reckless indifference to life, but demonstrate that he intended lethal force to be used should he and his accomplices face any resistance during the robbery. Thus, we conclude the Enmund-Tison culpability requirement is satisfied. See San Martin v. State, 705 So. 2d 1337, 1345-46 (Fla. 1997); Van Poyck v. State, 564 So. 2d 1066, 1070-71 (Fla. 1990); DuBoise v. State, 520 So. 2d 260, 265-66 (Fla. 1988); Diaz v. State, 513 So. 2d 1045, 1048 (Fla. 1987).

* * * *

[FN11] See, e.g., Curtis v. State, 685 So. 2d 1234, 1237 (Fla. 1996) (noting as a mitigating circumstance the fact that defendant did not kill the victim and his bullet merely struck victim in the foot after co- perpetrator had fired the fatal shot); cf. Taylor v. State, 294 So. 2d 648, 652 (Fla. 1974) (noting that downward trajectory of the fatal bullet at least raised the possibility that the defendant had not fired the shot).

[FN12] In Enmund v. Florida, 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982), the United States Supreme Court held that imposition of the death penalty in a felony murder case in which the defendant did not kill, attempt to kill, or intend that a killing take place or that lethal force be employed violates the Eighth Amendment prohibition against cruel and unusual punishment as applied to the states through the Fourteenth Amendment of the United States Constitution. In Tison v. Arizona, 481 U.S. 137, 95 L.

26 Ed. 2d 127, 107 S. Ct. 1676 (1987), the Court held that a finding of major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement for consistency with the Eighth Amendment.

Franqui v. State, 804 So. 2d 1185, 1196, 1197 (Fla. 2001). As counsel did raise this issue, he cannot be deemed ineffective for failing to have done so. Moreover, asserting different arguments in support of an issue that was raised on direct appeal or claiming that the argument that was made was inadequate are not grounds to reconsider the rejection of an issue. Rodriguez v. State, 31 Fla. L. Weekly S39, S49 (Fla. Jan.

19, 2006); Thompson v. State, 759 So. 2d 650, 657 n.6 (Fla.

2000). This is particularly true here, as Defendant had merely made conclusory allegations regarding the alleged inadequacy of the argument raised on direct appeal. See Patton v. State, 878

So. 2d 368, 380 (Fla. 2004). As such, this claim should be rejected.

27 CONCLUSION

For the foregoing reasons, the petition for writ of habeas corpus should be denied.

Respectfully submitted,

CHARLES J. CRIST, JR. Attorney General Tallahassee, Florida

______SANDRA S. JAGGARD Assistant Attorney General Florida Bar No. 0012068 Office of the Attorney General Rivergate Plaza -- Suite 650 444 Brickell Avenue Miami, Florida 33131 PH. (305) 377-5441 FAX (305) 377-5655

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was furnished by U.S. mail to Mary Catherine Bonner, 207 S.W. 12th Court, Ft. Lauderdale, Florida 33315, this 28th day of March, 2006.

______SANDRA S. JAGGARD Assistant Attorney General

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief is typed in Courier New 12- point font.

______SANDRA S. JAGGARD Assistant Attorney General

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