of 23

Please download to get full document.

View again

All materials on our website are shared by users. If you have any questions about copyright issues, please report us to resolve them. We are always happy to assist you.
23 pages
0 downs
Electronically Filed 05/17/ :11:23 PM ET RECEIVED, 5/17/ :13:47, Thomas D. Hall, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA CASE NO. SC RICHARD ENGLAND, Petitioner, v. MICHAEL
Electronically Filed 05/17/ :11:23 PM ET RECEIVED, 5/17/ :13:47, Thomas D. Hall, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA CASE NO. SC RICHARD ENGLAND, Petitioner, v. MICHAEL D. CREWS, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ET. AL, Respondents. RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS PAMELA JO BONDI ATTORNEY GENERAL Mitchell D. Bishop Assistant Attorney General Florida Bar No Seabreeze Blvd., 5th Floor Telephone: (386) Fax: (386) COUNSEL FOR RESPONDENTS RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS COME NOW the Respondents, by and through counsel, and responds as follows to Richard England s petition for a writ of habeas corpus (Petition). For the reasons set out below, the Respondents move this Honorable Court to deny the petition. RESPONSE TO PRELIMINARY STATEMENT The Preliminary Statement found on page 1 of the petition correctly recites Article 1, Section 13 of the Florida Constitution. The citation form used in the petition appears to be accurately described. The remainder of the Preliminary Statement is argumentative and is denied. RESPONSE TO REQUEST FOR ORAL ARGUMENT The Respondents defer to the Court s judgment as to whether oral argument is necessary or justified in this case. RESPONSE TO INTRODUCTION The Petitioner in this case seeks a writ of habeas corpus. Contemporaneous with his petition, England appeals the denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure (hereinafter Rule or ) from the Circuit Court in Volusia County where he was convicted of firstdegree murder and sentenced to death. This is England s first petition to this Court 2 for a writ of habeas corpus. In his petition, England claims that his convictions and death sentence and their affirmation by this Court were obtained in violation of the Constitutions of the United States and the State of Florida. RESPONSE TO JURISDICTION In this original action, the Petitioner raises claims challenging the constitutionality of his convictions and sentences and the judgment of this Court. Under Article V, Section 3(b)(9) of the Florida Constitution, this Court has jurisdiction. See also Reynolds v. State, 99 So. 3d 459, 465 (Fla. 2012), reh'g denied (Fla. 2012); Fla. R. App. P (a)(3), Fla. R. App. P (a). However, England s petition does not set out appropriate grounds for relief. RESPONSE TO GROUNDS FOR HABEAS CORPUS RELIEF England s petition for a writ of habeas corpus was filed on or about March 11, For the reasons set out below, the State moves this Honorable Court to deny the petition. PROCEDURAL HISTORY While essentially accurate, the procedural history contained in the petition is significantly abbreviated. On direct appeal, this Court summarized the facts of this case in the following way: Factual and Procedural Background On July 2, 2001, after receiving a call from concerned neighbors, the 3 City of Daytona Beach police found the body of Howard Wetherell in the shower of his master bathroom. Wetherell had been brutally beaten to death. He had multiple lacerations, fractures, and bruises over his body. 1 N. Leroy Parker, a Florida Department of Law Enforcement crime lab analyst and expert in the field of blood stain pattern analysis, analyzed the blood stain pattern in the upstairs master bedroom of Wetherell's condominium. He determined the pattern indicated that Wetherell was beaten while conscious and moving in different positions in several different locations in that room including on or near the floor, next to the door, near the dresser, and near the nightstand next to the bed. FN1 Ultimately, it was determined that Wetherell died of a blunt force trauma cervical spine fracture that severed his spinal cord and vertebral arteries causing him to suffocate to death as his diaphragm muscles were paralyzed from the fracture. The State's investigation of the crime scene was impeded by a white, powdery substance that had been sprayed over the bloody floor and furniture to cover up and destroy any potential evidence underneath, including fingerprints. However, crime scene investigators noticed that the poker was missing from the fireplace tools in the living room. They also recovered two cigarette butts from a second upstairs bedroom. Ultimately, Florida Department of Law Enforcement analyst Tim Pietre determined that the DNA on one of these cigarette butts belonged to Michael Jackson, and DNA on the other belonged to Richard England. Numerous items of value were missing from the condominium including antique guns, jewelry, silver, and the victim's green Mercury Sable automobile. Notably, a Rolex watch was found in the pocket of a pair of Wetherell's trousers. Before the crime occurred, Michael Jackson lived with Wetherell trading sex for money and a place to stay. Several days after the murder, he was arrested in Walton County after wrecking Wetherell's 4 green Mercury Sable. Shortly after his arrest, he gave a statement to State Attorney Investigator Shon McGuire implicating his friend, Richard England, in Wetherell's murder. England was not immediately charged for this murder but was taken into custody within weeks of the murder for an unrelated violation of probation (VOP) charge. 2 While incarcerated, England was questioned about Wetherell's murder by Investigator McGuire. Prior to and after this questioning, England gave several inculpatory statements. He also made statements to a fellow inmate. Cumulatively, these statements revealed that England knew of Wetherell through Jackson and was at the condominium the night of the murder; that he and Jackson stole property from the condominium and took the stolen property to Reynaldo DeLeon, a friend of England's in Orlando, so that DeLeon could fence it; and that on their way to DeLeon's home Jackson disposed of a bag of bloody rags and the missing fire poker, which was later determined to be the murder weapon. FN2 England was arrested in August 2001 for violating his probation from a 1987 murder conviction. He later argued that the VOP arrest was subterfuge to take him into custody without the benefit of an attorney. England did, however, have an attorney on the VOP charge, and he insisted on negotiating with the State for release on the VOP charge in return for information regarding Wetherell's murder. On December 21, 2001, Investigator McGuire executed a search warrant on England to obtain a blood sample in order to compare England's DNA to that recovered from one of the cigarette butts found in Wetherell's condominium. England asked to speak to McGuire alone. During this interview, England offered to help find the murder weapon if he could get some consideration on his VOP charge. He said that he had been at the victim's condominium on June 25 when Jackson got a rod and went upstairs. England said he heard the victim screaming and yelling, Why are you hitting me? England said he 5 did not go upstairs and never touched the victim. Instead, he went outside to smoke a cigarette, and when Jackson came downstairs they left. As stated earlier, the DNA on one of the cigarette butts found in the second upstairs bedroom matched England's. On November 6, 2003, a grand jury in Volusia County, Florida, returned a two-count indictment against England. Count one alleged that on or about June 25, 2001, England killed the victim either in a premeditated manner, during the course of a robbery or attempted robbery of the victim by the use of blunt force trauma, or by aiding, abetting, counseling, hiring, or otherwise procuring such offense to be committed by Michael Jackson. Count two alleged armed robbery of the victim with a deadly weapon (a metal rod). At trial, the State called several witnesses to testify regarding England's involvement in Wetherell's murder. DeLeon testified via a translator that England came to his house with Jackson. They brought antique guns, jewelry, and silver. 3 England told DeLeon that Jackson had hit a man, stolen the items, and then went to find England. England also said that he and Jackson went back to the man's house and found him alive, so England hit the man with a fire poker until he died. FN3 DeLeon paid England for the items in cocaine and cash and later sold some of them. DeLeon was arrested for drug trafficking on September 25, The same day, Karen Duggins, England's girlfriend, called and told him to dispose of the property England had given him because England had been arrested and detectives were looking for the property. DeLeon took the property to a hotel to hide it, but the police recovered the items when they arrested him. DeLeon was facing life imprisonment on the drug charges. In light of his cooperation in this case, DeLeon received a thirty-year sentence with twelve years suspended. The State called Steven Diehl, a jail house informant, who testified 6 that he met England in jail in mid-december and that he and England had several conversations about Wetherell's murder. England first told Diehl that he was innocent and that Jackson committed the murder. Later, England told Diehl that he bludgeoned an old pervert to death with a pipe and that the victim deserved it because he had been engaging in sexual relations with a young man. England said he and Jackson took items they had stolen from the man's house to a drug dealer friend of England's in Orlando and that England said he regretted leaving behind a Rolex watch. England also admitted that he left a cigarette butt at the house but planned to cover this mistake by saying that he had been partying at the house a few days earlier. England insinuated that he committed the murder alone but could beat the charges because the evidence was all circumstantial. England also told Diehl that he was going to have someone write a letter in Spanish to the drug dealer in Orlando, DeLeon, asking him not to testify. Finally, England asked Diehl to sign an agreement that he would not testify against him. The State also called Jackson's brother, Samuel, to testify about what Jackson had told him about the murder. Samuel testified that Jackson told him that Jackson and England committed the crime together. According to Samuel, Jackson stated that he and England took their clothes off and went into the victim's bedroom. They gave the victim a hellish beating. The victim screamed, hollered, and begged for his life; but Jackson and England told him to shut up and kept beating him until he died. The State also introduced physical evidence into the record as well as testimony involving evidence that had been destroyed. The physical evidence included (1) crime scene and autopsy photographs used during the medical examiner's testimony to assist his description of the extent and nature of the victim's injuries, (2) a photograph recovered from the crime scene, 4 and (3) telephone records showing calls made from Wetherell's number on the night of the murder to friends of England's who did not know Jackson or Wetherell. The 7 testimony involving evidence that had been destroyed was given by Ivy Evans, a long time friend of England's, and DeLeon. Evans testified about telephone calls received the night of the murder. She testified that England left a message on the answering machine for her husband. She had erased the message, so the tape recording was not available as evidence at trial. DeLeon testified about a letter he received asking him not to testify against England. DeLeon had destroyed the letter, so it also was not available as evidence at trial. FN4 The photograph found at the crime scene and entered into evidence had the words Pervert, f--k with us written across the face with an arrow pointing to the victim. Don Quinn, handwriting expert, examined the handwriting on the photograph and compared it to exemplars from England and Jackson. In Quinn's opinion, Jackson did not author any of the text, but England very probably did write the text. The defense called Jackson to testify. 5 Prior to the trial, Jackson had made a number of statements to the police. 6 In those statements, Jackson said that England committed the murder. He said he and England decided to rob Wetherell, and while they were committing the robbery they heard a noise upstairs. England then stripped naked, picked up the fire poker, went upstairs, and hit Wetherell thirteen to fifteen times with the poker. Jackson said Wetherell was running around the room, hitting the wall, falling, and pushing things out of the way. After Wetherell died, they tried to get rid of any evidence connecting them to the crime. They put Wetherell's body in the shower; England got in the shower and rinsed off; England spread white powder around saying it would take off the fingerprints; and England wiped everything down with white socks. FN5 Jackson had been scheduled to go to trial for Wetherell's murder on September 8, On September 7, Jackson took a plea to second-degree murder, armed robbery, and credit card theft. He agreed to testify against England based on a 8 taped statement. At trial, Jackson became a defense witness and testified that he was trying to withdraw his plea. FN6 Jackson made three pretrial statements: two were made during interviews to investigators on July 31 and August 16, 2001, and one while sworn to the prosecution and defense attorneys on September 7, At trial, Jackson recanted these prior statements. Jackson testified that he alone killed Wetherell with the fire poker because Wetherell was a pervert and that England did not assist. Jackson said that he gave the prior statements implicating England because he thought it was an easy way out. He thought that if he could give the police somebody else as a suspect, they would let him go. Jackson also testified that England had smoked cigarettes in Jackson's second floor bedroom the night before the murder. He said that although England was at the condominium on the night of the murder, he left and they met up later. Jackson said that he returned to Wetherell's condominium around 3 a.m. intending to kill and rob Wetherell. Jackson said he then got the fire poker, went upstairs, and beat Wetherell until he was dead even though the victim yelled, struggled, and asked Jackson to stop. Jackson dragged the body to the shower, took his clothes off, and showered with the body. Jackson said he wiped things down in the house even though he lived there, sprayed fire extinguisher powder everywhere, went through the house looking for valuables placing them in the living room, and then passed out. The next day Jackson loaded the victim's car with the stolen items and drove to a Burger King where he threw away blood-soaked clothing and the fire poker. He testified that England did not become involved until after the murder but that England did help get rid of the stolen items by meeting with DeLeon on June 26. England also took Jackson to Titusville to meet Jackson's brother, Samuel. Jackson denied telling Samuel that he and England had committed the murder. When confronted on cross-examination with Samuel's testimony that 9 he had told Samuel that he and England killed Wetherell together, Jackson said his brother was just trying to protect him. At one point during his trial testimony, when asked about the details of the beating, Jackson said, No, I didn't do nothing; I just was there. He later said, I did it all. Jackson further testified that he was changing his earlier deposition statements because the State was seeking the death penalty against England. On May 24, 2004, the jury returned guilty verdicts against England for both first-degree premeditated murder and felony murder and robbery with a deadly weapon. During the penalty phase, England made several outbursts that led the trial judge to order him gagged. Following the penalty phase, the jury returned an eight-to-four advisory sentence recommending death. A Spencer hearing was held on July 9, On July 23, 2004, England was sentenced to death on count I and to a concurrent life sentence on count II. England v. State, 940 So. 2d 389, (Fla. 2006). England raised fourteen issues on direct appeal: (A) fundamental error occurred because Jackson's testimony included a reference to facts excluded by the trial judge; (B) the jury should have been presented with a special verdict form; (C) certain crime scene and autopsy photographs should not have been admitted because they were gruesome and overly prejudicial; (D) the trial judge admitted testimony in violation of the best evidence rule; (E) the trial judge erred in permitting certain testimony from witness DeLeon; (F) there was juror misconduct; (G) the trial judge erred in finding the heinous, atrocious, or cruel 10 (HAC) aggravator; (H) the trial judge violated England's right to a fair sentencing hearing by gagging England during the penalty phase; (I) England's right to testify was violated; (J) the trial judge erred in refusing to permit defense evidence pursuant to Williams v. State, 110 So. 2d 654 (Fla. 1959); (K) the trial judge treated England disparately from codefendant Jackson in sentencing; (L) England's death sentence violates Roper v. Simmons, 543 U.S. 551 (2005); (M) England's death sentence was not proportional; and (N) England's death sentence violates Ring v. Arizona, 536 U.S. 584 (2002). This Court denied relief on all of England s direct appeal claims and affirmed the convictions and sentence. England, 940 So. 2d at England s petition for writ of certiorari in the United States Supreme Court was denied on April 2, England v. Florida, 549 U.S (2007). England filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure which was denied on October 25, 2011, 1 following a multi-day evidentiary hearing. 1 In the trial court s September 6, 2011 order, the claims for which England did not request an evidentiary hearing were denied. In the trial court s October 20, 2011 order, the remaining claims that were heard at the evidentiary hearing were denied. A clarifying order was issued on October 25, England s contemporaneous appeal from the denial of post-conviction relief is pending before this Court in case number SC STANDARD OF REVIEW INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL The standard of review for ineffective appellate counsel claims mirrors the standard for ineffective assistance of trial counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984). In order to grant habeas relief on ineffectiveness of appellate counsel, this Court must determine... first, whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result. Wickham v. State, 38 Fla. L. Weekly S285, S291 (Fla. May 2, 2013) (citing Pope v. Wainwright, 496 So.2d 798, 800 (Fla.1986). [A]ppellate counsel will not be deemed ineffective for failing to raise meritless issues or issues that were not properly raised in the trial court and are not fundamental error. Wickam, 38 Fla. L. Weekly at S291 (citing Valle v. Moore, 837 So. 2d 905, 908 (Fla. 2002)). CLAIM I THE ABUSE OF DISCRETION CLAIM In his first State Habeas claim, England argues that appellate counsel was ineffective in failing to present a claim of abuse of discretion and error by the trial 12 court when it overrode England s signed waiver of speedy trial and forced trial counsel to try the case. (Petition at 6). This claim should be denied based on this Court s opinion in Landry v. State, 666 So. 2d 121, (Fla. 1995), a death penalty case. As stated above, appellate counsel cannot be ineffective for failing to raise a meritless claim. Wickam, 38 Fla. L. Weekly at S291. In Landry, the defendant, through counsel, demanded a speedy trial, triggering the requirements of Florida Rule of Criminal Procedure (Rule 3.19
Related Search
We Need Your Support
Thank you for visiting our website and your interest in our free products and services. We are nonprofit website to share and download documents. To the running of this website, we need your help to support us.

Thanks to everyone for your continued support.

No, Thanks