postconviction evidentiary hearing in Florida

2014See Sochor, 883 So. 2d at 771 (citing Strickland, 466 U.S. at 694 ). - 15 - In 2011, Colon testified at the postconviction evidentiary hearing that he defended Woodel during the penalty phases by emphasizing the following to the jury: (1) Woodel’s alcohol consumption was one of multiple factors involved with these crimes; (2) Woodel had no violent criminal record; (3) Woodel grew up in a family with deaf parents; (4) Woodel’s mother was abusive, neglectful, and provided a poor household environment; (5) Woodel and his sister stole food from the neighbors as often as possible; and (6) Woodel an

2010See Hannon v. State, 941 So.2d 1109, 1134 (Fla.2006) (“In assessing prejudice, we reweigh the evidence in aggravation against the totality of the mental health mitigation presented during the postconviction evidentiary hearing to determine if our confidence in the outcome of the penalty phase trial is undermined.”); Asay v. State, 769 So.2d 974, 985 (Fla.2000) (“When evaluating claims that counsel was ineffective for failing to present mitigating evidence, this Court has phrased the defendant’s burden as showing that counsel’s ineffectiveness ‘deprived the defendant of a rehable penalty phase

2020We affirm because competent, substantial evidence supports the circuit court’s finding that trial counsel was not deficient. even that mitigation falls within the scope of trial counsel’s penalty phase presentation. - 41 - This Court has long held that “defense counsel is entitled to rely on the evaluations conducted by qualified mental health experts, even if, in retrospect, those evaluations may not have been as complete as others may desire.” Darling v. State, 966 So. 2d 366, 377 (Fla. 2007) (finding no deficiency where “[t]he testimony presented during the postconviction evidentiary hearin

2014Furthermore, we find that the circuit court did not err in concluding that the lay witness members of Bailey’s family would have provided evidence pertaining to mental health and psychological circumstances at trial that was cumulative to the evidence presented to the jury by Dr. Kubiak. “[T]his Court has held that ‘even if alternate witnesses could provide more detailed testimony, trial counsel is not ineffective for failing to present cumulative evidence.’” Lynch v. State, 2 So.3d 47, 71 (Fla.2008) (quoting Darling v. State, 966 So.2d 366, 377 (Fla.2007) (citing Gudinas v. State, 816 So.2d 1

2010Rutherford, 727 So.2d at 224-25 ; Darling v. State, 966 So.2d 366, 378 (Fla.2007) (“[T]rial counsel is not ineffective for failing to present cumulative evidence.”).

2008Cf. Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) ("[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct." (citing Rutherford v. State, 727 So.2d 216, 223 (Fla.1998); State v. Bolender, 503 So.2d 1247, 1250 (Fla.1987))).

2010See Hannon v. State, 941 So.2d 1109, 1134 (Fla.2006) (“In assessing prejudice, we reweigh the evidence in aggravation against the totality of the mental health mitigation presented during the postconviction evidentiary hearing to determine if our confidence in the outcome of the penalty phase trial is undermined.”); Asay v. State, 769 So.2d 974, 985 (Fla.2000) (“When evaluating claims that counsel was ineffective for failing to present mitigating evidence, this Court has phrased the defendant’s burden as showing that counsel’s ineffectiveness ‘deprived the defendant of a rehable penalty phase

2010See Hannon v. State, 941 So.2d 1109, 1134 (Fla.2006) ("In assessing prejudice, we reweigh the evidence in aggravation against the totality of the mental health mitigation presented during the postconviction evidentiary hearing to determine if our confidence in the outcome of the penalty phase trial is undermined."); Asay v. State, 769 So.2d 974, 985 (Fla. 2000) ("When evaluating claims that counsel was ineffective for failing to present *987 mitigating evidence, this Court has phrased the defendant's burden as showing that counsel's ineffectiveness `deprived the defendant of a reliable penalty

2008See Scott v. State, 717 So.2d 908, 912 (Fla.1998).

2006In Scott v. State, 717 So.2d 908, 910 (Fla.1998), this Court held that rule 4-3.7 of the Rules Regulating the Florida Bar does not prohibit an attorney from acting as both an attorney and a witness "where the state attorney was called as a witness for the other side on a Brady claim in a postconviction evidentiary hearing before a judge." Lamarca has not presented any evidence that the prosecutor went beyond what is authorized in Scott ; therefore, we deny this claim.

2022See Thomas v. State, 117 So. 3d 1191, 1194 (Fla. 2d DCA 2013) (“[A] defendant has the burden to present evidence at a postconviction evidentiary hearing, and once he does so, even if only through the presentation of his own testimony, the State must present contradictory evidence.” (citations omitted)).

2018P. 3.850(f)(8)(B) ("At an evidentiary hearing, the defendant shall have the burden of presenting evidence and the burden of proof in support of his or her motion, unless otherwise provided by law."). -6- "[W]hen a defendant presents competent substantial evidence in support of his ineffective assistance claim[s], the burden shifts to the State to present contradictory evidence." Williams, 974 So. 2d at 407 (citing Green v. State, 857 So. 2d 304, 305 (Fla. 2d DCA 2003)); accord Thomas v. State, 117 So. 3d 1191, 1194 (Fla. 2d DCA 2013) ("Generally, a defendant has the burden to present evidence

2020Generally, “counsel is not ineffective for deciding not to call a witness whose testimony will be harmful to the defendant.” Diaz v. State, 132 So. 3d 93, 109 (Fla. 2013). - 28 - However, we fail to see—and the record is silent regarding—how calling Darren Lee to testify at trial would have been inconsistent with trial counsel’s stated strategy to place as much blame on Heather Lee as possible without having the jury think he was trying to “scam” them by saying that Brown was not involved in the victim’s murder.

2016See Diaz, 132 So. 3d at 111-12 (“A defendant is not prejudiced by trial counsel’s failure to present cumulative evidence.” (citing Farina, 937 So. 2d at 624 )).

2018Additionally, the defendant’s trial counsel explained at the evidentiary hearing that he had expected the State to call Hunter as a State witness because Hunter would have provided a crucial link between the stolen cell phone and the defendant, and if Hunter had testified at trial, defense counsel would have attempted to cast doubt as to her credibility by trying to establish that there was animosity between Hunter and the defendant’s sister. 5 Thus, the record supports the trial court’s finding that trial counsel’s decision to not call Hunter as a defense witness was a reasonable strategic de

2008Cf. Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000) ("[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct." (citing Rutherford v. State, 727 So.2d 216, 223 (Fla.1998); State v. Bolender, 503 So.2d 1247, 1250 (Fla.1987))).

2014See Sochor, 883 So. 2d at 771 (citing Strickland, 466 U.S. at 694 ). - 15 - In 2011, Colon testified at the postconviction evidentiary hearing that he defended Woodel during the penalty phases by emphasizing the following to the jury: (1) Woodel’s alcohol consumption was one of multiple factors involved with these crimes; (2) Woodel had no violent criminal record; (3) Woodel grew up in a family with deaf parents; (4) Woodel’s mother was abusive, neglectful, and provided a poor household environment; (5) Woodel and his sister stole food from the neighbors as often as possible; and (6) Woodel an

2011Derrick v. State, 983 So.2d 443, 450 (Fla.2008); Sochor v. State, 883 So.2d 766, 771-72 (Fla.2004).

2010See Hannon v. State, 941 So.2d 1109, 1134 (Fla.2006) (“In assessing prejudice, we reweigh the evidence in aggravation against the totality of the mental health mitigation presented during the postconviction evidentiary hearing to determine if our confidence in the outcome of the penalty phase trial is undermined.”); Asay v. State, 769 So.2d 974, 985 (Fla.2000) (“When evaluating claims that counsel was ineffective for failing to present mitigating evidence, this Court has phrased the defendant’s burden as showing that counsel’s ineffectiveness ‘deprived the defendant of a rehable penalty phase

2010See Hannon v. State, 941 So.2d 1109, 1134 (Fla.2006) ("In assessing prejudice, we reweigh the evidence in aggravation against the totality of the mental health mitigation presented during the postconviction evidentiary hearing to determine if our confidence in the outcome of the penalty phase trial is undermined."); Asay v. State, 769 So.2d 974, 985 (Fla. 2000) ("When evaluating claims that counsel was ineffective for failing to present *987 mitigating evidence, this Court has phrased the defendant's burden as showing that counsel's ineffectiveness `deprived the defendant of a reliable penalty

2012In Parker v. State, 3 So.3d 974 (Fla.2009), we reversed for a new penalty phase where counsel presented only “bare bones” mitigation at trial and substantial mental mitigation and mitigation concerning Parker’s childhood were discovered and presented at the postconviction evidentiary hearing.

2009Recently, in Parker v. State, 3 So.3d 974 (Fla.2009), we reversed for a new penalty phase where counsel presented only “bare bones” mitigation at trial and where substantial mental mitigation and mitigation concerning Parker’s childhood were discovered and presented at the postconviction evidentiary hearing.

2010Just very briefly, if he wanted to testify.” Deaton, 635 So.2d at 9 .

2010Just very briefly, if he wanted to testify." Deaton, 635 So.2d at 9 .

2021See Turner v. State, 143 So. 3d 408, 418 (Fla. 2014) (finding that the second prong of Strickland was not satisfied where new mental health expert testimony was undermined by more convincing rebuttal evidence from another mental health expert).

2020See Hoskins v. State, 75 So. 3d 250, 257 (Fla. 2011).

2019Jones v. State, 845 So. 2d 55, 64 (Fla. 2003) (“Postconviction relief cannot be based on speculative assertions.”).

2019See Jones, 845 So. 2d at 64 . - 26 - However, even if trial counsel could have used these questions to cast doubt on Batchelor’s identification of Calhoun, there is no reasonable probability of a different outcome in light of the overwhelming evidence of Calhoun’s guilt, particularly where Batchelor’s identification is cumulative to Bradley’s identification of Calhoun as the person with scratches and dried blood on his hands who drove up to the convenience store in a car that matched the description of the victim’s vehicle.

2018P. 3.850(f)(8)(B) ("At an evidentiary hearing, the defendant shall have the burden of presenting evidence and the burden of proof in support of his or her motion, unless otherwise provided by law."). -6- "[W]hen a defendant presents competent substantial evidence in support of his ineffective assistance claim[s], the burden shifts to the State to present contradictory evidence." Williams, 974 So. 2d at 407 (citing Green v. State, 857 So. 2d 304, 305 (Fla. 2d DCA 2003)); accord Thomas v. State, 117 So. 3d 1191, 1194 (Fla. 2d DCA 2013) ("Generally, a defendant has the burden to present evidence

2017See Troy v. State, 57 So. 3d 828, 835 (Fla. 2011) (“[A] defendant’s claim that he was denied effective assistance of counsel because of counsel’s failure to present mitigation evidence will not be sustained where the jury was aware of most aspects of the mitigation evidence that the defendant claims should have been presented.”).

2017Therefore, after “reweighing the evidence in aggravation against the mitigation evidence presented during the postconviction evidentiary hearing and the penalty phase, our confidence in the outcome of the penalty phase trial is undermined,” Walker v. State, 88 So.3d 128, 141 (Fla. 2012), because “[t]he swaying of the vote of only one juror would have made 'a critical difference.” Phillips, 608 So.2d at 783 .

2017Therefore, after “reweighing the evidence in aggravation against the mitigation evidence presented during the postconviction evidentiary hearing and the penalty phase, our confidence in the outcome of the penalty phase trial is undermined,” Walker v. State, 88 So. 3d 128, 141 (Fla. 2012), because “[t]he swaying of the vote of only one juror would have made a critical difference.” Phillips, 608 So. 2d at 783 .