IN THE SUPREME COURT OF FLORIDA OBA CHANDLER, Appellant, vs. Case No. SC 01-1468 THE STATE OF FLORIDA, Appellee. _________________________/ On Direct Appeal From A June 28, 2001 Final Order Of The Circuit Court For The Sixth Judicial Circuit In And For Pinellas County, Florida, Denying Appellant’s Post Conviction Motion To Vacate His Convictions, Judgments And Death Sentences Filed Per The Provisions Of Florida Rule Of Criminal Procedure 3.850. INITIAL BRIEF OF APPELLANT BAYA HARRISON 738 Silver Lake Road Post Office Drawer 1219 Monticello, FL 32345-1219 Tel: (850) 997-8469 Fax: (850) 997-8468 Florida Bar No. 099568 1 TABLE OF CONTENTS Page(s) Table of Citations . .iii- vii Preliminary Statement including Record References . viii-ix Statement of the Case and of the Facts . 1- 26 A. Nature of the Case . 1 B. Course of the Proceedings . 1-4 C. Disposition in the Lower Tribunal . .. 4 D. Statement on Jurisdiction . 4 E. Standard of Appellate Review . 5 F. Statement of the Facts . 6- 26 Summary of the Argument . 27- 30 Argument (including Issues Presented for Appellate Review) A. The Venue Issue . 31 2 DID THE TRIAL COURT ERR BY DENYING CHANDLER AN EVIDENTIARY HEARING RE- GARDING HIS CLAIM THAT DEFENSE COUNSEL WAS IN- EFFECTIVE FOR FAILING TO SEEK A VENUE CHANGE FROM ORANGE COUNTY? i B. The Admission of Guilt/Williams Rule Issue . 52 DID THE TRIAL COURT ERR BY NOT FINDING THAT DE- FENSE COUNSEL WAS IN- EFFECTIVE FOR ADMITTING THAT CHANDLER WAS GUILTY OF THE BLAIR SEXUAL BATTERY AND IN INSTRUCTING HIS CLIENT TO ASSERT HIS FIFTH AMEND- MENT PRIVILEGE AGAINST SELF-INCRIMINATION RE- GARDING SAME? C. Ineffectiveness Re. Closing Argument Issue . 63 DID THE TRIAL COURT ERR IN NOT FINDING THAT DE-FENSE COUNSEL WAS IN-EFFECTIVE FOR FAILING TO OBJECT TO THE PROSECU-TOR’S IMPROPER CLOSING ARGUMENT? 3 Conclusion . 80 Certificate of Service . 80, 81 Certificate of Compliance . 81 ii TABLE OF CITATIONS Cases Page(s) Adams v. State, 192 So. 2d 762 (Fla. 1966) . 69 Brown v. State, ___, So. 2d ____, 2000 WL. 63 263425 (Fla. March 9, 2000) Bertolotti v. State, 476 So. 2d 130, 133 . 66 (Fla. 1985) Chandler v. State, 702 So. 2d 186 . 2, 6, 28, 64, 65 (Fla. 1997) 4 Chandler v. Florida, 523 U.S. 1083 . 2 (1998) Cherry v. State, 659 So. 2d 1069 . 31, 73 (Fla. 1995) Cochran v. State, 117 So. 2d 544 . 59 (Fla. 2d DCA 1960) Connelly v. State, 744 So. 2d 531 . 63 (Fla. 2DCA 1999) Copeland v. State, 457 So. 2d 1016 . 37, 38, 39 (Fla. 1984) Foster v. State, 778 So. 2d 906, 912 . 33 (Fla. 2001) Fuller v. State, 540 So. 2d 182 . 72 (Fla. 5th DCA 1959) iii Griffin v. California, 380 U.S. 609 . 68 (1965) Henyard v. State, 689 So. 2d 239 . 33 (Fla. 1996) 5 Highsmith v. State, 493 So. 2d 533 . 76 (Fla. 2DCA 1986) Huff v. State, 622 So. 2d 982 . 3, 71 (Fla. 1993) Irvin v. Dowd, 366 U. S. 717 (1961) . 36, 38 Jackson v. State, 421 So. 2d 15 . 70 (Fla. 3rd DCA 1982) Jenkins v. State, 563 So. 2d 791 . 70 (Fla. 1st DCA 1990) Johnson v. Moore, 789 So. 2d 262 . 5 (Fla. 2001) Knight v. State, 394 So. 2d 997 . 27, 31 (Fla. 1981) Knight v. State, 672 So. 2d 590 . 70 (Fla. 4th DCA 1996) Knight v. State 710 So. 2d 648 . 75, 76 (Fla. 2DCA 1998) Manning v. State, 378 So. 2d 274 . 36 (Fla. 1979) 6 Miller v. State, 676 So. 2d . 63 (Fla. 1st DCA 1996) iv Mills v. Singletary, 63 F.3d 999 . 36 (11th Cir. 1995) Murphy v. Florida, 421 U. S. 794 . 37, 38 (1975) Nixon v. Singletary, 758 So. 2d 618 . 60 (Fla. 2000) Oakley v. State, 677 So. 2d 879 . 37 (Fla. 2nd DCA 1996) Pacifico v. State, 642 So. 2d 1178 . 71 (Fla. 1st DCA 1994) Peete v. State, 748 So. 2d 253 . 5 (Fla. 1999) Redish v. State, 525 So. 2d 928 . 70 (Fla. 1st DCA 1988) Roberts v. State, 568 So. 2d 1255 . 27, 31 (Fla. 1990) 7 Robinson v. State, 661 So. 2d . 74 (Fla. 2d DCA 1996) Rolling v. State, 695 So. 2d 278 . 33 (Fla. 1997) Rose v. State, 675 So. 2d 567 . 5 (Fla. 1996) Ryan v. State, 457 So. 2d 1084 . 70 (Fla. 4th DCA 1984) Sheppard v. Maxwell, 384 U.S. 333 . 36 (1966) v State v. Kinchen, 490 So. 2d 21 . 67 (Fla. 1985) State v. Marshall, 476 So. 2d 150 . 67, 68 (Fla. 1985) Strickland v. Washington, 466 U. S. 668 . 27, 31, 64 (1984) Stewart v. State, 51 So. 2d 494 . 65 (Fla. 1951) United States v. Morris, 568 F.2d 396 . 63 8 (5th Cir. 1978) Statutes and Other Authorities Art. I, Sec. 9, Fla. Const. 58, 59 Art. I, Sec. 16, Fla. Const. 31, 50 Art. V, Sec. 3(b)(1), Fla. Const. 4 Amend. V, U.S. Const. 14, 24, 31, 58, 59 Amend. VI, U.S. Const. 27, 31, 50 Amend. XIV, U.S. Const. 31, 50, 58 Sec. 27.710, Fla. Stat. 2 Sec. 27.711, Fla. Stat. 2 Sec. 90.404(2), Fla. Stat. 7, 10, 56, 59 Sec. 90.404(2)(b), Fla. Stat. 52 Sec. 910.03, Fla. Stat. 32, 34, 35, 36, 40 vi 9 Fla. R. Crim. P. 3.190(c)(4) . 11 Fl. R. Crim. P. 3.240 . 34 Fla. R. Crim. P. 3.850 . 1, 2, 3, 4, 6, 33, 35, 39 Fla. R. Crim. P. 3.850(d) . 34 Fla. R. Crim. P. 3.850(e) . 4, 34 vii 10 PRELIMINARY STATEMENT INCLUDING RECORD REFERENCES Appellant, Oba Chandler, the defendant in the trial court, will be referred to as “the defendant” or “Chandler.” Appellee, State of Florida, will be referred to as “the state.” Except as noted below, the record on appeal in this Florida Rule of Criminal Procedure 3.850 post conviction proceeding is in twelve volumes. At the bottom of each page, the Clerk of Circuit Court has provided a page number. This part of the record includes the pleadings, orders and other related documents. Reference to this part of the record will be by the letter “R” followed by an appropriate page number, or, for example, “R. 2002.” The transcript of the evidentiary hearing on Chandler’s post conviction motion is in two volumes. The Clerk of Circuit Court did not designate the pages of these transcripts with an “R” citation. Therefore, reference to this transcript will be by the symbol “EH” (standing for evidentiary hearing) followed by the page number provided by the court reporter located in the upper right-hand corner of each page. Items introduced in evidence during the Rule 3.850 post 11 viii conviction proceeding will be referred to by a generic description, the exhibit number and the location of the item in the record on appeal. Two reports prepared by Media Specialist Paul Wilson, not introduced in evidence but authorized by the trial court to be a part of the record in support of Chandler’s venue claim, will be referred to by the abbreviated date, author and page number (appearing in the lower right-hand corner of each page) or, for example, “12/7/2000 Wilson Media Report, p. 10.” References to the record on appeal in Chandler v. State, 702 So. 2d 186 (Fla. 1997), the original direct appeal of Chandler’s convictions, judgments and death sentences, will be by the symbols used in that proceeding, a record volume and page number, or for example, “Vol. 7, R. 2324.” ix 12 STATEMENT OF THE CASE AND OF THE FACTS A. Nature of the Case This is a direct appeal from a final Order (R. 2054-2089) of the Circuit Court of the Sixth Judicial Circuit, in and for Pinellas County, Florida, in Case No. CRC 92-17438 CFANO-B, Hon. Susan F. Schaeffer, Circuit Judge, presiding, rendered on June 28, 2001, denying the defendant’s post conviction motion to vacate and set aside his first degree murder convictions, judgments of guilt and death sentences, filed per the provisions of Florida Rule of Criminal Procedure 3.850. B. Course of the Proceedings On November 10, 1992, Chandler was indicted by a Pinellas County, Florida grand jury on three counts of first degree murder for the deaths of Joan and her daughters, Michelle and Christe Rogers, occurring on or between June 1-4, 1989. (R. 1, 2054) Frederick Zinober, Esq, was appointed to represent the defendant. Trial commenced on September 19, 1994, and the jury ultimately returned guilty verdicts on all three 13 counts. (R. 2055; Vol. 66, R. 11082-84)1 On November 4, 1994, after a penalty phase proceeding conducted per the provisions of Section 921.141, Florida Statutes, the trial court imposed three death sentences upon Chandler for the murders of the Rogers women. (R. 2055; Vol. 68, R. 11520-11530) After the filing of a timely notice of appeal, this Court affirmed the convictions, judgments and sentences. Chandler v. State, 702 So. 2d 186 (Fla. 1997). A timely filed petition for writ of certiorari was denied by the United States Supreme Court on April 20, 1998. Chandler v. Florida, 523 U.S. 1083 (1998). On June 17, 1998, the Office of Capital Collateral Representative, Middle Region (CCR-Middle), filed an original “shell” motion to vacate the defendant’s convictions, judgements and sentences per the provisions of Florida Rule of Criminal Procedure 3.850 with leave to amend. (R. 1-27, 2055) A slew of discovery and public records litigation ensued.