Executed October 15, 2013 06:16 p.m. EST by Lethal Injection in Florida
31st murderer executed in U.S. in 2013
1351st murderer executed in U.S. since 1976
6th murderer executed in Florida in 2013
80th murderer executed in Florida since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
William Frederick Happ
W / M / 24 - 51
W / F / 21
Happ v. State, 596 So. 2d 991 (Fla. 1992). (Direct Appeal)
Happ v. Moore, 784 So. 2d 1091 (Fla. 2001). (State Habeas)
Happ v. State, 922 So. 2d 182 (Fla. 2005). (PCR)
Final / Special Meal:
A 12-ounce box of assorted chocolates and 1 1/2 quarts of German chocolate ice cream.
"For 27 years, the horrible murder of Angela Crowley has been clouded by circumstantial evidence and uncertainty. For the sake of her family, loved ones and all concerned, it is to my agonizing shame that I must confess to this terrible crime."
Florida Department of CorrectionsDC Number: 117027
Current Prison Sentence History:
05/24/1986 1ST DG MUR/PREMED. OR ATT. 07/31/1989 LAKE 8801037 DEATH SENTENCE
05/24/1986 BURGLARY ASSAULT ANY PERSON 07/31/1989 LAKE 8801037 SENTENCED TO LIFE
05/24/1986 KIDNAP;COMM.OR FAC.FELONY 07/31/1989 LAKE 8801037 SENTENCED TO LIFE
05/24/1986 SEX BAT/ WPN. OR FORCE 07/31/1989 LAKE 8801037 SENTENCED TO LIFE
09/26/1991 CALIFORNIA DOC DETAIN 04/30/1993
11/13/1991 AMENDED..SACRAMENTO DETAIN 04/30/1993
Incarceration History: 08/02/1989 to 10/15/2013
"Florida executes man with new lethal injection drug," by Bill Cotterell. (Tue Oct 15, 2013 8:01pm EDT)
TALLAHASSEE, Florida (Reuters) - Florida prison officials on Tuesday carried out what they described as the first execution in the United States using the sedative midazolam hydrochloride in a lethal injection. Midazolam was pumped into William Happ, 51, as the first of three drugs in a lethal injection cocktail designed to induce unconsciousness, paralysis and death by cardiac arrest, the Florida Department of Corrections said. He was pronounced dead at 6:16 p.m. EDT in the execution chamber at the Florida State Prison in Starke and there appeared to be no suffering or unusual reaction stemming from the use of the new drug, department spokeswoman Misty Cash said.
In a hand-written final statement, Happ confessed to killing 21-year-old Angie Crowley, who was raped and murdered in 1986. He also apologized to those who believed in his innocence. "It is to my to agonizing shame that I must confess to this terrible crime," he wrote.
Like many other death penalty states across the country Florida is running out of pentobarbital, a barbiturate that has long been the first of three drugs administered in a lethal injection "protocol" for executions. Supplies of pentobarbital are low because its manufacturer has clamped down on sales of the drug for executions, prison officials said. Just last week, Missouri postponed an execution set for October 23 due to uncertainty about using a different drug, propofol, as a pentobarbital substitute. Legal experts had voiced concern over whether midazolam, commercially known as Versed, would spare Happ from suffering extreme pain when the second and third drugs were administered. Richard Dieter, executive director of the Death Penalty Information Center in Washington, called the use of the drug in an execution "an experiment on a living human being."
No late appeals were filed on behalf of Happ, who was sentenced to death in 1989 and abandoned his appeals in September. Another Florida death row inmate, Etheria Jackson, has a hearing scheduled in Jacksonville federal court November 6, contending that the use of midazolam might violate the U.S. Constitution's ban on "cruel and unusual punishment" by allowing inmates to suffer in their final minutes.
Cash told Reuters state authorities had been satisfied that the new drug represented a humane replacement for pentobarbital, however, and would not open the door to "unnecessary or wanton infliction of pain and suffering." "The department was required to develop a new protocol because we have limited supplies of pentobarbital sodium that will expire at the end of November 2013," Cash said.
"Slain Lauderdale Lakes woman's family awaits execution of her killer Tuesday." (Oct 15, 2013)
William Frederick Happ is scheduled to die by lethal injection at 6 p.m. Tuesday for the 1986 rape and strangulation of a Lauderdale Lakes woman. The 51-year-old painter formerly of Gilroy, Calif. will be the 80th person executed in Florida since the U.S. Supreme Court reinstated the death penalty in 1976. Happ has spent more time on death row than Angela Crowley, the 21-year-old woman he killed, spent alive.
Happ's only visitors Tuesday were two Catholic spiritual advisers. One, a priest, administered his last rites. He took his final meal at 10 a.m. At his request, Happ had a 12-ounce box of assorted chocolates and 1-1/2 quarts of German chocolate ice cream. His demeanor Tuesday was "calm," a prison spokeswoman said.
Two of Crowley's brothers, two sisters, a nephew and an aunt will gather with journalists to witness the execution at Florida State Prison, located nine miles north of the small northern Florida town of Starke. Reminiscing about his youngest sister isn't the painful part, Chris Crowley said. Thinking about her brutal end — raped, strangled to death and dumped in a canal — is. "I've lost quite a few people in my immediate family since that murder and that drives me as much as anything," Chris Crowley said of his resolve to witness Happ's execution. "Knowing that he was sentenced to death and he's still alive, yet I've lost a brother, a sister and a mother since that."
It was May 1986 when "Angie" Crowley's raped and strangled body, wearing only a T-shirt, her sweatpants twisted around her neck, was found by a fisherman on a canal bank in Citrus County. Delighted with her new job at a travel agency, Crowley, originally from Oregon, Ill., had relocated to Lauderdale Lakes only five months before she was abducted. She was driving alone to Yakeetown on the Gulf Coast to spend Memorial Day weekend with a former college roommate. At 2 a.m., she pulled off Florida's Turnpike in Wildwood to make a call from a telephone booth at a closed convenience store. The bubbly, outgoing former high-school cheerleader was never heard from again. Her Oldsmobile Firenza was found seven blocks from the store.
Three months later, finger-, palm- and footprints found in or near Crowley's car linked Happ to the crime when he was captured in Pittsburgh and booked for a 1984 kidnapping and robbery of a service station in his hometown of Gilroy, Calif. Happ — who had been arrested in California 30 times between 1974 and 1984 — was convicted of Crowley's murder in the summer of 1989 and sentenced to death.
Happ has outlived Angela Crowley's mother, Julienne, by five years. She died at age 72 in 2008. "My mother was adamant about the execution and following it through to the end," Chris Crowley, of Newburg, Mo., said. "The murder devastated her. That was one of her last things, 'You stay on top of them and make sure this comes to a conclusion.'" Joining Chris Crowley to witness the execution will be his 26-year-old son, Bryce Crowley, a practicing attorney born 14 months after Angela Crowley's murder.
"Happ executed using new drug," by Morgan Watkins. (Tuesday, October 15, 2013 at 10:18 p.m.)
RAIFORD — William Frederick Happ, who raped and murdered 21-year-old Angela Crowley in May 1986, was executed Tuesday using a drug as part of Florida's lethal injection cocktail that had never been used for an execution in the U.S.
Crowley's family was shocked by Happ's final statement, when he apologized for her murder and asked for forgiveness. Still, Crowley's brother Chris told reporters after Happ's execution Tuesday that he does not forgive him. "The fact that he admitted it — apologized for it — was a shock," he said. "He did it, I think, probably for himself."
Crowley, who went by Angie, was from Oregon, Ill., but had moved to Lauderdale Lakes in Florida to work at a travel agency. She was driving alone to meet a friend on Memorial Day weekend. It was dark when she pulled into the parking lot of a closed convenience store in Crystal River to place a call from a telephone booth. But she never made it to the pay phone, and she was never seen alive again. Happ smashed her car window and kidnapped her. He raped and strangled her. Her sweatpants were still wrapped around her neck when a fisherman found her body.
The execution began a couple minutes after 6 Tuesday at Florida State Prison near Starke, more than 27 years after Crowley's murder. Happ was declared dead — and the state's sentence against him carried out — at 6:16 p.m.
After the execution, Crowley's brother Chris said his family would not experience any closure but would be able to move on and remember the good times with Angie now that Happ has been executed. "We have lost a vibrant young woman with dark blue eyes and an infectious smile," he said as he and his family stood together in a field across from the prison. "We've been brought here because the worst possible crime was committed." He said it is the responsibility of family, friends and society to ensure the most severe sentence is imposed with a crime like this. "To do anything less is to say to the murderer their life is more valuable than the one that they've taken," he said.
Happ, who was 24 years old when he killed Crowley and 51 when he was executed, was the first person to be executed using a drug called midazolam hydrochloride — a move by the state that has elicited ethical questions over whether it could potentially constitute cruel and unusual punishment. Florida made the switch because it is running low on pentobarbital sodium, which is the first drug it usually uses in the lethal injection process. The drug's maker has stopped shipping it to prisons where executions are carried out, causing shortages in Florida and other states. Florida uses a three-drug protocol in its executions. Midazolam hydrochloride, which is commercially recognized as Versed and typically used as a sedative prior to surgery, was the first drug administered to Happ as he lay strapped to a gurney Tuesday evening. Then vecuronium bromide was injected intravenously to cause paralysis, followed by potassium chloride, which induces cardiac arrest.
Happ had two visitors earlier Tuesday and his demeanor in the hours leading up to his death was calm, state Department of Corrections spokeswoman Jessica Cary said. One visitor was a Catholic correctional chaplain who was a volunteer and the other was a Catholic priest who gave him last rites. Happ's last meal was a 12-ounce assorted box of chocolates and a quart-and-a-half of German chocolate ice cream.
Twenty-eight people were in the viewing room for the execution, waiting for the opaque curtain covering the window to rise. Crowley's brother Chris was there along with his brother and two sisters, as well as Chris' son and other members of the victim's family. Many wore suit jackets and dress shoes. It was quiet in the room, save for the buzz of the air-conditioning unit. When the curtain rose, Happ lay on the gurney with an IV already inserted into his arm, his hands tied down by brown straps. A mirror above his head reflected the faces of some of Crowley's family members where they sat in the viewing room across from him.
His last words were ones of apology and prayer. "... The terrible murder of Angela Crowley has been clouded by circumstantial evidence and uncertainty," he said. It was "to my agonizing shame" that he confessed to her murder, he said, and he wished to offer his most sincere, heartfelt apology. He also apologized to those he deceived and allowed to believe in his innocence. "I have prayed for the good Lord to forgive me for my sins, but I can understand why those here cannot," he said. He prayed that the Lord grants peace to all those burdened with the day's solemn task. His final word was "Amen."
As the execution began, he closed and opened his eyes before closing them again. His mouth slowly fell open. The white sheet covering him rose and fell slightly with each breath. Minutes ticked by on the digital clock with large red numerals on the wall behind him. Around five minutes in, his head twitched slightly to the side and his mouth fluttered a bit. One of the men in the room checked on Happ a minute later, touching his eyelids and shoulders to see if he was unconscious. Happ didn't move. Around 6:10 p.m., his head twitched again. At 6:15 p.m., a doctor in a white coat came into the room and shined a slim flashlight in both of his eyes before checking for a heartbeat with a stethoscope. He was pronounced dead, and the state's sentence complete, at 6:16 p.m. Crowley's family filed out of the room soon afterward. All were silent, although one woman gave the reporters in the back of the room a small smile as she walked by.
Happ didn't ask for any delays in his execution. During a September court hearing, he told Circuit Court Judge Richard Howard he didn't want any motions filed to postpone it, according to a report by Howard. He told Howard he had had enough time to make this decision and preferred the execution be carried out. "I've thought about this for many years," he said.
In the field across from the state prison, about 30 anti-death penalty protesters gathered around the time the state's sentence was being carried out. One proponent was there, too. George Diller, a 73-year-old man from Gainesville, said the state's use of the untried drug Versed for Tuesday's execution concerned him. "It just added to the horror of the thing," he said.
Richard Dieter, the executive director of the Washington, D.C.-based Death Penalty Information Center, said Florida's use of a three-drug process is already under scrutiny, as several states have recently been switching to a one-drug lethal injection. The paralytic masks any problems with the sedative, so if there was an adverse reaction to Versed, it wouldn't be noticeable, he said. "... It constitutes an experiment on a human subject and I think raises concerns just on that score," he said. "But in addition, Florida's continuing with the three-drug process that has been noted as risky — potentially excruciatingly painful if the first drug doesn't work right — and that's the drug that Florida's experimenting with."
"Fla. executes man for Illinois woman’s 1986 murder." (Associated Press October 15, 2013 at 08:48 PM)
STARKE – It’s been more than 27 years since William Happ strangled Angie Crowley and 24 years since he was sentenced to die. His sentence was carried out Tuesday evening: death by chemical injection at Florida State Prison. In a final statement, Happ expressed remorse for his actions. “To my agonizing shame, I must confess to the crime,” he said in a slow, deliberate voice. “I wish to offer my most sincere, heartfelt apology. I have prayed for the good Lord to forgive me for my sins. But I understand why those here cannot.”
The words didn’t mean much to Crowley’s brother Chris. “The apology, for what it’s worth, I personally think that’s more for himself than anything,” Crowley said, adding that he doesn’t forgive Happ. “He needs to ask someone a lot more important than me for forgiveness.”
The execution began at 6:02 p.m. Happ’s eyes opened and he blinked several times. He closed them and opened them again two minutes later. He then yawned and his jaw dropped open. At 6:08 p.m., the official overseeing the execution tugged at Happ’s eyelids and grasped his shoulder to check for a response. There was none. A minute later, Happ’s head began moving back and forth and shortly thereafter his breathing stopped. He was pronounced dead at 6:16 p.m.
Happ was the first person to be executed under a new mix of drugs Florida is using for lethal injections. It appeared Happ remained conscious longer and made more body movements after losing consciousness than other people executed recently by lethal injection under the old formula.
Angie Crowley’s family gave a statement afterward. “We have lost a vibrant young lady with dark blue eyes and an infectious smile. With this loss we will no longer experience her great sense of humor, her laughter and her loving and caring personality,” Chris Crowley said while surrounded by family and friends. “Our loss is also your loss. You have lost the possibility of meeting such a special person.” Angie Crowley’s mother and two siblings died before they could see the sentence carried out, but Crowley’s surviving sisters and brothers were in Starke to watch as Happ was executed. Chris Crowley made the trip from Missouri.
Angie Crowley had moved to Florida from Oregon, Ill., just five months before her 1986 murder. The 21-year-old was working as a travel agent in the Fort Lauderdale area and planned to make the 300-mile drive to visit a college friend in Yankeetown. Crowley was prone to getting lost, so her friend told her to drive to a convenience store in Crystal River and call her from a pay phone in the parking lot and she’d met her and guide her the last few miles. Crowley found the store, but she never made it to the phone. Happ just happened to be there, too. He smashed the window to the car and kidnapped Crowley and took her to a canal where he gave her 10 to 20 severe blows to the head. He raped her, then strangled her with her stretch pants and threw her body in the water.
Happ left for California, where he was arrested on unrelated charges. A detective flew from Florida to get one of his sneakers and later matched it to a shoe print at the scene of the killing. At the time, Happ was a high school dropout living with his aunt. He did odd jobs, laid bricks and did some landscaping. He was also abusing alcohol and drugs.
Crowley was a beautiful, smart, popular woman who was pursuing her dream to travel the world. Her murder shocked Oregon, a town of about 3,500 about 25 miles southwest of Rockford, Ill. She was an honor student, cheerleader and musician. She just happened to pull into the parking lot at the wrong time. “They just intersected – and the odds,” Chris Crowley said. “Those are lottery odds.” The randomness of the crime has left questions in Crowley’s mind. “The only thing I would like to know is why, and I don’t expect to find out,” Crowley said. “I have a lot of hatred for the man. A lot of hatred.”
After Florida Gov. Rick Scott signed Happ’s death warrant, Happ told a judge he did not want any lawyers filing appeals for him.
Happ was calm Tuesday when he met with two spiritual advisers, including a Roman Catholic priest who administered last rites, according to Department of Corrections spokeswoman Jessica Cary. For his last meal, Happ had a 12-ounce box of assorted chocolates and 1 1/2 quarts of German chocolate ice cream.
Following is a list of inmates executed since Florida resumed executions in 1979:
1. John Spenkelink, 30, executed May 25, 1979, for the murder of traveling companion Joe Szymankiewicz in a Tallahassee hotel room.
2. Robert Sullivan, 36, died in the electric chair Nov. 30, 1983, for the April 9, 1973, shotgun slaying of Homestead hotel-restaurant assistant manager Donald Schmidt.
3. Anthony Antone, 66, executed Jan. 26, 1984, for masterminding the Oct. 23, 1975, contract killing of Tampa private detective Richard Cloud.
4. Arthur F. Goode III, 30, executed April 5, 1984, for killing 9-year-old Jason Verdow of Cape Coral March 5, 1976.
5. James Adams, 47, died in the electric chair on May 10, 1984, for beating Fort Pierce millionaire rancher Edgar Brown to death with a fire poker during a 1973 robbery attempt.
6. Carl Shriner, 30, executed June 20, 1984, for killing 32-year-old Gainesville convenience-store clerk Judith Ann Carter, who was shot five times.
7. David L. Washington, 34, executed July 13, 1984, for the murders of three Dade County residents _ Daniel Pridgen, Katrina Birk and University of Miami student Frank Meli _ during a 10-day span in 1976.
8. Ernest John Dobbert Jr., 46, executed Sept. 7, 1984, for the 1971 killing of his 9-year-old daughter Kelly Ann in Jacksonville..
9. James Dupree Henry, 34, executed Sept. 20, 1984, for the March 23, 1974, murder of 81-year-old Orlando civil rights leader Zellie L. Riley.
10. Timothy Palmes, 37, executed in November 1984 for the Oct. 19, 1976, stabbing death of Jacksonville furniture store owner James N. Stone. He was a co-defendant with Ronald John Michael Straight, executed May 20, 1986.
11. James David Raulerson, 33, executed Jan. 30, 1985, for gunning down Jacksonville police Officer Michael Stewart on April 27, 1975.
12. Johnny Paul Witt, 42, executed March 6, 1985, for killing, sexually abusing and mutilating Jonathan Mark Kushner, the 11-year-old son of a University of South Florida professor, Oct. 28, 1973.
13. Marvin Francois, 39, executed May 29, 1985, for shooting six people July 27, 1977, in the robbery of a ``drug house'' in the Miami suburb of Carol City. He was a co-defendant with Beauford White, executed Aug. 28, 1987.
14. Daniel Morris Thomas, 37, executed April 15, 1986, for shooting University of Florida associate professor Charles Anderson, raping the man's wife as he lay dying, then shooting the family dog on New Year's Day 1976.
15. David Livingston Funchess, 39, executed April 22, 1986, for the Dec. 16, 1974, stabbing deaths of 53-year-old Anna Waldrop and 56-year-old Clayton Ragan during a holdup in a Jacksonville lounge.
16. Ronald John Michael Straight, 42, executed May 20, 1986, for the Oct. 4, 1976, murder of Jacksonville businessman James N. Stone. He was a co-defendant with Timothy Palmes, executed Jan. 30, 1985.
17. Beauford White, 41, executed Aug. 28, 1987, for his role in the July 27, 1977, shooting of eight people, six fatally, during the robbery of a small-time drug dealer's home in Carol City, a Miami suburb. He was a co-defendant with Marvin Francois, executed May 29, 1985.
18. Willie Jasper Darden, 54, executed March 15, 1988, for the September 1973 shooting of James C. Turman in Lakeland.
19. Jeffrey Joseph Daugherty, 33, executed March 15, 1988, for the March 1976 murder of hitchhiker Lavonne Patricia Sailer in Brevard County.
20. Theodore Robert Bundy, 42, executed Jan. 24, 1989, for the rape and murder of 12-year-old Kimberly Leach of Lake City at the end of a cross-country killing spree. Leach was kidnapped Feb. 9, 1978, and her body was found three months later some 32 miles west of Lake City.
21. Aubry Dennis Adams Jr., 31, executed May 4, 1989, for strangling 8-year-old Trisa Gail Thornley on Jan. 23, 1978, in Ocala.
22. Jessie Joseph Tafero, 43, executed May 4, 1990, for the February 1976 shooting deaths of Florida Highway Patrolman Phillip Black and his friend Donald Irwin, a Canadian constable from Kitchener, Ontario. Flames shot from Tafero's head during the execution.
23. Anthony Bertolotti, 38, executed July 27, 1990, for the Sept. 27, 1983, stabbing death and rape of Carol Ward in Orange County.
24. James William Hamblen, 61, executed Sept. 21, 1990, for the April 24, 1984, shooting death of Laureen Jean Edwards during a robbery at the victim's Jacksonville lingerie shop.
25. Raymond Robert Clark, 49, executed Nov. 19, 1990, for the April 27, 1977, shooting murder of scrap metal dealer David Drake in Pinellas County.
26. Roy Allen Harich, 32, executed April 24, 1991, for the June 27, 1981, sexual assault, shooting and slashing death of Carlene Kelly near Daytona Beach.
27. Bobby Marion Francis, 46, executed June 25, 1991, for the June 17, 1975, murder of drug informant Titus R. Walters in Key West.
28. Nollie Lee Martin, 43, executed May 12, 1992, for the 1977 murder of a 19-year-old George Washington University student, who was working at a Delray Beach convenience store.
29. Edward Dean Kennedy, 47, executed July 21, 1992, for the April 11, 1981, slayings of Florida Highway Patrol Trooper Howard McDermon and Floyd Cone after escaping from Union Correctional Institution.
30. Robert Dale Henderson, 48, executed April 21, 1993, for the 1982 shootings of three hitchhikers in Hernando County. He confessed to 12 murders in five states.
31. Larry Joe Johnson, 49, executed May 8, 1993, for the 1979 slaying of James Hadden, a service station attendant in small north Florida town of Lee in Madison County. Veterans groups claimed Johnson suffered from post-traumatic stress syndrome.
32. Michael Alan Durocher, 33, executed Aug. 25, 1993, for the 1983 murders of his girlfriend, Grace Reed, her daughter, Candice, and his 6-month-old son Joshua in Clay County. Durocher also convicted in two other killings.
33. Roy Allen Stewart, 38, executed April 22, 1994, for beating, raping and strangling of 77-year-old Margaret Haizlip of Perrine in Dade County on Feb. 22, 1978.
34. Bernard Bolander, 42, executed July 18, 1995, for the Dade County murders of four men, whose bodies were set afire in car trunk on Jan. 8, 1980.
35. Jerry White, 47, executed Dec. 4, 1995, for the slaying of a customer in an Orange County grocery store robbery in 1981.
36. Phillip A. Atkins, 40, executed Dec. 5, 1995, for the molestation and rape of a 6-year-old Lakeland boy in 1981.
37. John Earl Bush, 38, executed Oct. 21, 1996, for the 1982 slaying of Francis Slater, an heir to the Envinrude outboard motor fortune. Slater was working in a Stuart convenience store when she was kidnapped and murdered.
38. John Mills Jr., 41, executed Dec. 6, 1996, for the fatal shooting of Les Lawhon in Wakulla and burglarizing Lawhon's home.
39. Pedro Medina, 39, executed March 25, 1997, for the 1982 slaying of his neighbor Dorothy James, 52, in Orlando. Medina was the first Cuban who came to Florida in the Mariel boat lift to be executed in Florida. During his execution, flames burst from behind the mask over his face, delaying Florida executions for almost a year.
40. Gerald Eugene Stano, 46, executed March 23, 1998, for the slaying of Cathy Scharf, 17, of Port Orange, who disappeared Nov. 14, 1973. Stano confessed to killing 41 women.
41. Leo Alexander Jones, 47, executed March 24, 1998, for the May 23, 1981, slaying of Jacksonville police Officer Thomas Szafranski.
42. Judy Buenoano, 54, executed March 30, 1998, for the poisoning death of her husband, Air Force Sgt. James Goodyear, Sept. 16, 1971.
43. Daniel Remeta, 40, executed March 31, 1998, for the murder of Ocala convenience store clerk Mehrle Reeder in February 1985, the first of five killings in three states laid to Remeta.
44. Allen Lee ``Tiny'' Davis, 54, executed in a new electric chair on July 8, 1999, for the May 11, 1982, slayings of Jacksonville resident Nancy Weiler and her daughters, Kristina and Katherine. Bleeding from Davis' nose prompted continued examination of effectiveness of electrocution and the switch to lethal injection.
45. Terry M. Sims, 58, became the first Florida inmate to be executed by injection on Feb. 23, 2000. Sims died for the 1977 slaying of a volunteer deputy sheriff in a central Florida robbery.
46. Anthony Bryan, 40, died from lethal injection Feb. 24, 2000, for the 1983 slaying of George Wilson, 60, a night watchman abducted from his job at a seafood wholesaler in Pascagoula, Miss., and killed in Florida.
47. Bennie Demps, 49, died from lethal injection June 7, 2000, for the 1976 murder of another prison inmate, Alfred Sturgis. Demps spent 29 years on death row before he was executed.
48. Thomas Provenzano, 51, died from lethal injection on June 21, 2000, for a 1984 shooting at the Orange County courthouse in Orlando. Provenzano was sentenced to death for the murder of William ``Arnie'' Wilkerson, 60.
49. Dan Patrick Hauser, 30, died from lethal injection on Aug. 25, 2000, for the 1995 murder of Melanie Rodrigues, a waitress and dancer in Destin. Hauser dropped all his legal appeals.
50. Edward Castro, died from lethal injection on Dec. 7, 2000, for the 1987 choking and stabbing death of 56-year-old Austin Carter Scott, who was lured to Castro's efficiency apartment in Ocala by the promise of Old Milwaukee beer. Castro dropped all his appeals.
51. Robert Glock, 39 died from lethal injection on Jan. 11, 2001, for the kidnapping murder of a Sharilyn Ritchie, a teacher in Manatee County. She was kidnapped outside a Bradenton shopping mall and taken to an orange grove in Pasco County, where she was robbed and killed. Glock's co-defendant Robert Puiatti remains on death row.
52. Rigoberto Sanchez-Velasco, 43, died of lethal injection on Oct. 2, 2002, after dropping appeals from his conviction in the December 1986 rape-slaying of 11-year-old Katixa ``Kathy'' Ecenarro in Hialeah. Sanchez-Velasco also killed two fellow inmates while on death row.
53. Aileen Wuornos, 46, died from lethal injection on Oct. 9, 2002, after dropping appeals for deaths of six men along central Florida highways.
54. Linroy Bottoson, 63, died of lethal injection on Dec. 9, 2002, for the 1979 murder of Catherine Alexander, who was robbed, held captive for 83 hours, stabbed 16 times and then fatally crushed by a car.
55. Amos King, 48, executed by lethal inection for the March 18, 1977 slaying of 68-year-old Natalie Brady in her Tarpon Spring home. King was a work-release inmate in a nearby prison.
56. Newton Slawson, 48, executed by lethal injection for the April 11, 1989 slaying of four members of a Tampa family. Slawson was convicted in the shooting deaths of Gerald and Peggy Wood, who was 8 1/2 months pregnant, and their two young children, Glendon, 3, and Jennifer, 4. Slawson sliced Peggy Wood's body with a knife and pulled out her fetus, which had two gunshot wounds and multiple cuts.
57. Paul Hill, 49, executed for the July 29, 1994, shooting deaths of Dr. John Bayard Britton and his bodyguard, retired Air Force Lt. Col. James Herman Barrett, and the wounding of Barrett's wife outside the Ladies Center in Pensacola.
58. Johnny Robinson, died by lethal injection on Feb. 4, 2004, for the Aug. 12, 1985 slaying of Beverly St. George was traveling from Plant City to Virginia in August 1985 when her car broke down on Interstate 95, south of St. Augustine. He abducted her at gunpoint, took her to a cemetery, raped her and killed her.
59. John Blackwelder, 49, was executed by injection on May 26, 2004, for the calculated slaying in May 2000 of Raymond Wigley, who was serving a life term for murder. Blackwelder, who was serving a life sentence for a series of sex convictions, pleaded guilty to the slaying so he would receive the death penalty.
60. Glen Ocha, 47, was executed by injection April 5, 2005, for the October, 1999, strangulation of 28-year-old convenience store employee Carol Skjerva, who had driven him to his Osceola County home and had sex with him. He had dropped all appeals.
61. Clarence Hill 20 September 2006 lethal injection Stephen Taylor
62. Arthur Dennis Rutherford 19 October 2006 lethal injection Stella Salamon
63. Danny Rolling 25 October 2006 lethal injection Sonja Larson, Christina Powell, Christa Hoyt, Manuel R. Taboada, and Tracy Inez Paules
64. Ángel Nieves Díaz 13 December 2006 lethal injection Joseph Nagy
65. Mark Dean Schwab 1 July 2008 lethal injection Junny Rios-Martinez, Jr.
66. Richard Henyard 23 September 2008 lethal injection Jamilya and Jasmine Lewis
67. Wayne Tompkins 11 February 2009 lethal injection Lisa DeCarr
68. John Richard Marek 19 August 2009 lethal injection Adela Marie Simmons
69. Martin Grossman 16 February 2010 lethal injection Margaret Peggy Park
70. Manuel Valle 28 September 2011 lethal injection Louis Pena
71. Oba Chandler 15 November 2011 lethal injection Joan Rogers, Michelle Rogers and Christe Rogers
72. Robert Waterhouse 15 February 2012 lethal injection Deborah Kammerer
73. David Alan Gore 12 April 2012 lethal injection Lynn Elliott
74. Manuel Pardo 11 December 2012 lethal injection Mario Amador, Roberto Alfonso, Luis Robledo, Ulpiano Ledo, Michael Millot, Fara Quintero, Fara Musa, Ramon Alvero, Daisy Ricard.
75. Larry Eugene Mann 10 April 2013 lethal injection Elisa Nelson
76. Elmer Leon Carroll 29 May 2013 lethal injection Christine McGowan
77. William Edward Van Poyck 12 June 2013 lethal injection Ronald Griffis
78. John Errol Ferguson 05 August 2013 lethal injection Livingstone Stocker, Michael Miller, Henry Clayton, John Holmes, Gilbert Williams, and Charles Cesar Stinson
79. Marshall Lee Gore 01 October 2013 lethal injection Robyn Novick (also killed Susan Roark but was executed for killing Novick)
80. William Frederick Happ 15 October 2013 lethal injection Angie Crowley
The relevant facts indicate that on May 24, 1986, a fisherman found the partially clad body of a 21-year-old woman on the bank of the Cross-Florida Barge Canal in northwest Citrus County. The woman's shoulders were covered by a tee shirt that was pulled up to her underarms, and a pair of stretch pants were tied tightly around her neck. The medical examiner testified that her face and skull were badly bruised and hemorrhaged, that she had multiple scrapes on her back and right heel, that she had suffered ten to twenty hard blows to the head, and that she had been anally raped before death. The cause of death was found to be strangulation.
Angie Crowley had driven from Fort Lauderdale to Yankeetown to visit a friend. Several newspaper carriers claimed to have seen a small car at a Cumberland Parms store in Crystal River at approximately 2:40 a.m. on May 24, and to have heard a woman scream at approximately the same time. Angie's car was found on May 25 at a restaurant on U.S. Highway 19, approximately six-tenths of a mile south of the Cumberland Farms store. The window on the driver's side of the car had been shattered. The glass from the car was consistent with glass found at the Cumberland Farms store and at the canal where Angie's body was found. A shoe print found outside the driver's side of the car was later found to match one of Happ's shoes. Happ's fingerprints were also found on the exterior of the car.
Angie was making the trip through Florida for Memorial Day weekend and had arranged to meet her friend at a convenience store in Crystal River so she could be guided the last few miles of the trip. She found the store but before she could use the pay phone, Happy had smashed her window and kidnapped her. Happ was indicted for first-degree murder, burglary of a conveyance with a battery therein, kidnapping, and sexual battery likely to cause serious personal injury.
Happ's first jury trial ended in a mistrial caused by the prosecutor's violation of an order in limine prohibiting the State from revealing Happ's prior record. Before the second trial commenced, Happ filed a motion to dismiss the indictment on double jeopardy grounds. The motion was denied, and his petition to the Fifth District Court of Appeal for a writ of prohibition on this issue was also denied.
At the second trial, a friend of Happ's testified that he had seen Happ walking down U.S. Highway 19 toward the barge canal at 11:OO p.m. on May 23, and that he saw Happ the next morning with a swollen right hand. Happ's former girlfriend testified that Happ had told her he broke a car window with his fist. Richard Miller, an inmate housed near Happ at the Citrus County Jail, testified at the first trial that Happ had described how he abducted a woman from a parking lot, took her to the canal, beat her, anally and orally raped her, and eventually strangled her. This testimony was read to the jury at the second trial because Miller refused to testify in that proceeding. The jury found Happ guilty of all charges.
At the penalty phase, the State produced evidence of Happ's prior convictions in California, including an incident of an abduction and armed robbery. The medical examiner testified that a person usually chokes for two minutes before losing consciousness and becomes brain dead after four or five minutes. An adult education teacher at the jail testified that Happ had average intelligence, knew right from wrong, was not mentally deficient, and helped teach math to other inmates. Happ's sister testified concerning Happ's age, poor upbringing, and drug and alcohol use. Happ's aunt testified that, when Happ lived with her, he looked for work and helped her with her ailing husband. The jury in the penalty phase recommended the death penalty by a vote of nine to three. The trial judge sentenced Happ to death for the murder of the victim and to three consecutive life sentences on the other three counts.
The judge found the following four aggravating circumstances: (1) that Happ had prior convictions for violent felonies; (2) that the murder was committed during the commission of sexual battery, kidnapping, and burglary; (3) that the murder was especially heinous, atrocious, or cruel; and (4) that the murder was cold, calculated, and premeditated. The trial judge also found three mitigating circumstances, including Happ's age, family history, and educational aid to other inmates. The trial judge concluded that the mitigating circumstances were outweighed by the aggravating circumstances and imposed the death penalty.
Angie Crowley's brother Chris has pushed for years through an online petition and an email campaign to ensure Happ was executed for what he did to his sister. "He killed my sister, he took her life. But when he took that life, he created so many other victims," Crowley said. "What he did affected everybody. It ate my mother up. I changed jobs and moved all within three months."
Angie Crowley was a popular student at Oregon, Illinois High School. After graduating, she attended Northern Illinois University before moving to Fort Lauderdale in December 1985. She worked as a travel agent to help pursue her dreams to travel the world. "He took away the potential. There were seven kids in that family and she had the greatest potential of everybody. She had the personality, she had the looks, she had the smarts and she had the attitude. She really, really accomplished things and he took that," Chris Crowley said. "We were never able to see it." Angie Crowley's friends said she had a magnetic personality. She was a talented musician, honor student and a cheerleader with tons of friends. Always smiling, she never said anything bad about anybody. "She was a sweetheart. Everybody just loved her, she had a great personality.
She was prom queen, she was homecoming queen. She was just a gorgeous, gorgeous girl," said Jim Kaufman, a classmate who visited Angie in Florida just before her slaying. "All of her classmates were devastated. Everybody in the whole town was. The whole town from young to older people knew her very well. She was very, very outgoing." She was also a thoughtful friend who made great efforts to stay connected, said Sharon McBreen, who moved from Illinois to Florida in 10th grade. Not only did Angie write long letters, but she mailed McBreen a senior yearbook signed by all her former classmates. Angie's note in the book was two-pages long. "She was just one of those really good friends who never missed your birthday. The card was always on time. She would write me six-page letters," McBreen said. "She would just write, front and back. She filled these letters with everything that was going on in town, and what she was thinking and what she wanted to do."
UPDATE: Moments before his death Happ told his victim's family, "For 27 years, the horrible murder of Angela Crowley has been clouded by circumstantial evidence and uncertainty. For the sake of her family, loved ones and all concerned, it is to my agonizing shame that I must confess to this terrible crime." Angie's brother Chris replied, "You need to ask somebody a lot more important than me for forgiveness." Seventeen members of Angie's family witnessed the execution, which took more than a quarter century to occur. Her mother and two siblings died during the ensuing years after Angie's murder.
Florida Commission on Capital Cases
Inmate: GORE, Marshall Lee (W/M)
DOC#: 401256 The Commission on Capital Cases was not funded in the FY 2011-2012 General Appropriations Act, and the Commission ceased operations on June 30, 2011. This site and the Commission website are being retained to provide access to historical materials. These actions are effective July 1, 2011. Inmate: Happ, William
02/28/07 USDC 07-00074 Habeas
05/01/07 USDC 07-00074 Response
04/06/10 USDC 07-00074 Denied
06/01/10 USDC 07-00074 Certificate of Appealibility Denied
05/05/10 USCA 10-12159-P Appeal
10/22/07 CC 86-671 Successive 3.850
HAPP, William (W/M)
Fifth Judicial Circuit, Citrus County Case # 86-671
Venue changed to Lake County on 06/29/88
Sentencing Judge: The Honorable Jerry T. Lockett
Attorney, Trial: Jeffery M. Pfister – Assistant Public Defender
Attorney, Direct Appeal: Christopher S. Quarles – Assistant Public Defender
Attorney, Collateral Appeals: Robert Strain & Carol Rodriguez – CCRC-M
Date of Offense: 05/24/86
Date of Sentence: 07/31/89
Circumstances of Offense: On 05/24/86, a fisherman found the body of a partially clad woman on the bank of the Cross-Florida Barge Canal. The woman’s shoulders were covered by a tee shirt that was pulled up to her underarms, and a pair of stretch pants was tied tightly around her neck. The medical examiner testified that the woman’s face and skull were badly bruised and hemorrhaged, had multiple scrapes on her back and right heel, had suffered ten to twenty hard blows to the head, and had been anally raped before death, the cause of which was strangulation.
The victim was last seen at a Cumberland Farms store at 2:30 a.m. on 05/24/86, and a woman’s scream was heard at approximately the same time. The victim’s car was found six-tenths of a mile from the store, with its driver’s side window shattered. A shoe print found outside the driver’s side door matched one of Happ’s shoes and Happ’s fingerprints were found on the exterior of the car. Happ revealed the details of the crime to a fellow jail inmate, Richard Miller.
Happ’s first trial ended in a mistrial when the prosecutor violated a court order and revealed Happ’s prior criminal record. At the second trial, a friend of Happ’s testified that around the time of the murder, he saw Happ walking toward the canal, and the next morning he noticed that Happ had a swollen right hand. Happ’s former girlfriend also testified that Happ told her that he had broken a car window with his fist.
12/02/86 Indicted as follows:
Count I First-Degree Murder
Count II Burglary with Battery
Count III Kidnapping
Count IV Sexual Battery
02/05/87 Entered a plea of not guilty
06/29/88 Venue changed from Citrus to Lake County (Lake County case # 88-1037)
07/28/89 Jury returned guilty verdicts on all counts of the indictment
07/31/89 Jury recommended a death sentence by a vote of 9-3
07/31/89 Sentenced as follows:
Count I First-Degree Murder – Death
Counts II-IV Life Imprisonment
Florida Supreme Court – Direct Appeal
596 So.2d 991
08/30/89 Appeal filed
01/23/92 FSC affirmed convictions and sentences
03/09/92 Rehearing denied
04/08/92 Mandate issued
U.S. Supreme Court – Petition for Writ of Certiorari
506 U.S. 949
06/08/92 Petition filed
11/02/92 USSC granted petition, vacated sentence, and remanded case for reconsideration
Florida Supreme Court – Direct Appeal (on remand from USSC)
FSC # 74,634
618 So.2d 205
05/20/93 FSC affirmed sentence
06/21/93 Mandate issued
U.S. Supreme Court – Petition for Writ of Certiorari
510 U.S. 925
08/18/93 Petition filed
10/12/93 USSC denied petition
Circuit Court – 3.850 Motion
01/17/95 Motion filed
05/15/97 Circuit Court denied Motion
Florida Supreme Court – 3.850 Motion Appeal
770 So.2d 158
06/01/98 Appeal filed
09/13/00 FSC dismissed appeal without prejudice
Circuit Court – 3.850 Motion
01/17/95 Original 3.850 Motion filed
11/02/99 Motion amended
08/31/00 Motion amended
11/10/00 Motion amended
09/18/03 Circuit Court denied Motion
Florida Supreme Court – Petition for Writ of Habeas Corpus
784 So.2d 1091
10/27/00 Petition filed
05/03/01 FSC denied Petition
Florida Supreme Court – 3.850 Motion Appeal
922 So.2d 182
10/22/03 Appeal filed
12/08/05 FSC affirmed denial of motion
02/13/06 Rehearing denied
U.S. District Court, Middle District – Petition for Writ of Habeas Corpus
02/28/07 Petition filed
04/06/10 Petition denied
Circuit Court – 3.850 Motion
10/22/07 Motion filed (Pending)
U.S. Court of Appeals – Petition for Writ of Habeas Corpus Appeal
05/05/10 Appeal filed (Pending)
Happ filed a Direct Appeal with the Florida Supreme Court on 08/30/89, citing the following nine errors: denying motion to dismiss the indictment on double jeopardy grounds, denying motion to suppress evidence, refusing to answer a jury deliberation question, restricting evidence regarding witness testimony, failing to find that the State did not express non-racial reasons for striking a juror, allowing the reading of Miller’s (a fellow jail inmate) testimony at the second trial, commenting on the evidence and limiting defense counsel’s closing arguments, refusing to allow the defense to refer to the key state witness as a “snitch” and “squealer,” and denial of a fair trial due to the cumulative effect of errors. The FSC affirmed the conviction and sentence on 01/23/92.
Happ filed a Petition for Writ of Certiorari with the U.S. Supreme Court on 06/08/92 that was granted on 11/02/92. The USSC vacated the sentence and remanded the case to the FSC.
On 05/20/93, the Florida Supreme Court again affirmed the death sentence of Happ.
Happ filed a Petition for Writ of Certiorari with the U.S. Supreme Court on 08/18/93 that was denied on 10/12/93.
Happ filed a 3.850 Motion with the Circuit Court on 01/17/95 that was denied on 05/15/97.
Happ filed a 3.850 Motion Appeal with the Florida Supreme Court on 06/01/98 that was dismissed without prejudice on 09/13/00 to allow Happ to raise ineffective assistance of counsel claims in an amended 3.850 Motion.
Happ filed an amended 3.850 Motion with the Circuit Court on 11/02/99 that was again amended on 08/31/00 and 11/10/00. The Motion was denied on 09/18/03.
Happ filed a Petition for Writ of Habeas Corpus with the Florida Supreme Court on 10/27/00, citing issues related to ineffective assistance of appellate counsel. The FSC denied the Petition on 05/03/01.
Happ filed a 3.850 Motion Appeal with the Florida Supreme Court on 10/22/03 that was denied on 12/08/05.
On 02/28/07, Happ filed a Petition for Writ of Habeas Corpus with the U.S. District Court, Middle District. This petition was denied on 04/06/10.
Happ filed a 3.850 Motion in the state Circuit Court on 10/22/07. This motion is pending.
On 05/05/10, Happ filed an Appeal with the United States Court of Appeals. This appeal is pending.
Happ v. State, 596 So. 2d 991 (Fla. 1992). (Direct Appeal)
PROCEDURAL POSTURE: Appellant sought review of a judgment rendered by the Circuit Court in and for Citrus County (Florida) that convicted him for first-degree murder, kidnapping, other crimes, and imposed life sentences and death.
OVERVIEW: Appellant was convicted of first-degree murder, kidnapping, and other crimes. The court imposed a death sentence for the first-degree murder charge and several life terms. Appellant sought review of his convictions and his sentences. Appellant raised nine claims in his appeal of the guilt phase of his trial. Appellant asserted that his second trial was barred by the Double Jeopardy Clause in the United States and Florida Constitutions. This claim arose from the prosecutor mentioning that appellant had committed armed robbery during cross-examination of appellant's aunt in the first trial. Prior to appellant's first trial, the trial court entered an order in limine barring the prosecutor from mentioning appellant's prior criminal conviction record. The trial court declared a mistrial. A retrial was not barred, under the double jeopardy clause, unless there was intent on the part of the prosecutor to cause a new trial. The Supreme Court affirmed appellant's convictions and sentence. The court found that appellant failed to establish that the prosecutor intended to force defense counsel to seek a mistrial. Appellant's other contentions were without merit.
OUTCOME: The court affirmed appellant's convictions for first-degree murder, kidnapping, other crimes, and appellant's life sentence because the prosecutor did not intend to force defense counsel to seek a mistrial and all of appellant's other contentions were without merit.
William Frederick Happ appeals his convictions for first-degree murder, burglary of a conveyance with a battery therein, kidnapping, and sexual battery likely to cause serious personal injury, and his resulting sentences, including the imposition of the death sentence for the first-degree murder. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. For the reasons expressed, we affirm Happ's convictions and sentences, including the death sentence.
The relevant facts indicate that on May 24, 1986, a fisherman found the partially clad body of a woman on the bank of the Cross-Florida Barge Canal in northwest Citrus County. The woman's shoulders were covered by a tee shirt that was pulled up to her underarms, and a pair of stretch pants were tied tightly around her neck. The medical examiner testified that her face and skull were badly bruised and hemorrhaged, that she had multiple scrapes on her back and right heel, that she had suffered ten to twenty hard blows to the head, and that she had been anally raped before death. The cause of death was found to be strangulation.
The victim had driven from Fort Lauderdale to Yankeetown to visit a friend. Several newspaper carriers claimed to have seen a small car at a Cumberland Farms store in Crystal River at approximately 2:40 a.m. on May 24, and to have heard a woman scream at approximately the same time. The victim's car was found on May 25 at a restaurant on U.S. Highway 19, approximately six-tenths of a mile south of the Cumberland Farms store. The window on the driver's side of the car had been shattered. The glass from the car was consistent with glass found at the Cumberland Farms store and at the canal where the victim's body was found. A shoe print found outside the driver's side of the car was later found to match one of Happ's shoes. Happ's fingerprints were also found on the exterior of the car.
Happ was indicted for first-degree murder, burglary of a conveyance with a battery therein, kidnapping, and sexual battery likely to cause serious personal injury. Happ's first jury trial ended in a mistrial caused by the prosecutor's violation of an order in limine prohibiting the State from revealing Happ's prior record. Before the second trial commenced, Happ filed a motion to dismiss the indictment on double jeopardy grounds. The motion was denied, and his petition to the Fifth District Court of Appeal for a writ of prohibition on this issue was also denied. At the second trial, a friend of Happ's testified that he had seen Happ walking down U.S. Highway 19 toward the barge canal at 11:00 p.m. on May 23, and that he saw Happ the next morning with a swollen right hand. Happ's former girlfriend testified that Happ had told her he broke a car window with his fist. Richard Miller, an inmate housed near Happ at the Citrus County Jail, testified at the first trial that Happ had described how he abducted a woman from a parking lot, took her to the canal, beat her, anally and orally raped her, and eventually strangled her. This testimony was read to the jury at the second trial because Miller refused to testify in that proceeding. The jury found Happ guilty of all charges.
At the penalty phase, the State produced evidence of Happ's prior convictions in California, including an incident of an abduction and armed robbery. The medical examiner testified that a person usually chokes for two minutes before losing consciousness and becomes brain dead after four or five minutes. An adult education teacher at the jail testified that Happ had average intelligence, knew right from wrong, was not mentally deficient, and helped teach math to other inmates. Happ's sister testified concerning Happ's age, poor upbringing, and drug and alcohol use. Happ's aunt testified that, when Happ lived with her, he looked for work and helped her with her ailing husband. The jury in the penalty phase recommended the death penalty by a vote of nine to three.
The trial judge sentenced Happ to death for the murder of the victim and to three consecutive life sentences on the other three counts. The judge found the following four aggravating circumstances: (1) that Happ had prior convictions for violent felonies; (2) that the murder was committed during the commission of sexual battery, kidnapping, and burglary; (3) that the murder was especially heinous, atrocious, or cruel; and (4) that the murder was cold, calculated, and premeditated. The trial judge also found three mitigating circumstances, including Happ's age, family history, and educational aid to other inmates. The trial judge concluded that the mitigating circumstances were outweighed by the aggravating circumstances and imposed the death penalty.
Happ raises nine claims in his appeal of the guilt phase of his trial. Specifically, Happ claims that the trial court erred in: (1) denying his motion to dismiss the indictment on double jeopardy grounds; (2) denying his motion to suppress evidence of his statements to the police and the fruits thereof; (3) refusing to answer a question asked by the jury during deliberations; (4) restricting the presentation of evidence that Richard Miller had admitted to lying during his first testimony; (5) failing to find that the State did not express non-racial reasons for striking one of the members of the venire; (6) allowing the reading of Miller's testimony; (7) commenting on the evidence and limiting defense counsel's closing arguments; (8) refusing to allow defense counsel to refer to the key state witness as a "snitch" or "squealer"; and (9) that Happ was denied a fair trial due to the cumulative effect of numerous errors that occurred below. After fully examining this record, we find that claims (3), (4), (7), (8), and (9), are without merit and require no further discussion.
Happ asserts in his first claim that his second trial and conviction were barred by the Double Jeopardy Clause in the United States and Florida Constitutions. This claim arises from the prosecutor's mentioning that Happ had committed an armed robbery during the cross-examination of Happ's aunt in the first trial. Prior to Happ's first trial, and as a result of a defense motion, the trial court had entered an order in limine which provided as follows:
Unless the Defense mentions, refers to or attempts to convey to the jury the following described statements or facts, the State and all witnesses in the case shall not mention, refer to, interrogate concerning or attempt to convey to the jury, in any manner whatsoever, either by testimony, inference, directly or indirectly, [the Defendant's prior criminal conviction record except for proper impeachment purposes] without first obtaining permission of the Court, outside of the presence and hearing of the jury.
During the cross-examination of Happ's aunt by the State, the following colloquy took place: Q So you knew in January of 1987 Bill had been charged and was being extradited from California for that murder; correct? A But they were only back there one time after that, and I told them then-- Q That you didn't know. A --that Bill didn't--couldn't do anything like that. Q I understand. A They had never told me--they told me that something happened in Crystal River they thought he was mixed up in. Q You said you knew he couldn't do anything like that. A Yes, sir. Q Do you know that he's committed armed robbery? MR. PFISTER [defense counsel]: Objection, Your Honor. THE COURT: Approach the Bench. (Thereupon, the following proceedings were held at the Bench.) THE COURT: What's your objection? MR. PFISTER: Objection, Your Honor.
Your Honor, out of the complete blue, Mr. King has gone out and said Mr. Happ is guilty of armed robbery or committed armed robbery. That's absolutely not invited at all. He's gone around and simply brought out the fact that Mr. Happ has been convicted of a crime. He's brought out the fact that Mr. Happ has been convicted of a crime. Absolute error for the State, Your Honor. I'd move for mistrial at this point. Absolute error. Prosecutorial misconduct. THE COURT: Mr. King. MR. KING: Your Honor, it's clear that she injected that into the cross examination. THE COURT: It's clear I think you want a mistrial and you did it deliberate. I'll declare a mistrial.
After granting the mistrial, the trial judge filed a citation for direct contempt against the prosecutor and set a hearing on the matter for the following day. The prosecutor's attorney filed a motion to disqualify the trial judge from conducting the contempt proceedings, which was denied. At the hearing, the trial judge concluded that the prosecutor had a different understanding of the order in limine and that, since the propriety of the prosecutor's question was legally debatable, the prosecutor's vigorous advocacy did not rise to the level of direct criminal contempt. 1 The trial judge then entered an order expressly finding that the provisions of the order in limine were legally debatable as to whether they permitted the prosecutor to ask the question propounded and, thus, dismissed the contempt citation. The first trial judge then recused himself and a new trial judge was assigned to the case.
1 The pertinent part of the trial judge's order reads as follows: 1) The Court has determined that the orders in limine of the Court were legally debatable as to whether Mr. King could have asked the question propounded. 2) Since the matter was legally debatable the Court finds that the conduct of Mr. King cannot, as a matter of law, rise to the level of direct criminal contempt. 3) The Citation for Direct Criminal Contempt is hereby dismissed . . . .
The second trial judge then held a hearing on the motion to dismiss on double jeopardy grounds based on the prosecutor's misconduct in causing the mistrial. The second trial judge denied the motion, finding as follows: 1. Reasonable attorneys and reasonable trial court judges could disagree as to the propriety of the question concerning the defendant's prior criminal conviction being propounded to the defense witness in the context in which it was presented. 2. Given the conclusion contained in paragraph #1, the court cannot find that by asking the question the state attorney intentionally engaged in conduct designed to provoke a mistrial or that his conduct rose to the level of gross negligence sufficient to provoke a mistrial. Happ then petitioned for a writ of prohibition in the Fifth District Court of Appeal. In denying the petition, the district court, in Happ v. Lockett, 543 So. 2d 1281 (Fla. 5th DCA 1989), stated:
In the instant case, Judge Thurman's observation that the prosecutor intentionally caused a mistrial, even if considered a finding of fact, cannot be elevated to the status of a final order with greater stature or dimension than an interlocutory order. Judge Thurman's finding, if it was such, was not necessary in order to support his grant of a mistrial and it was never reduced to a final order of dismissal of the charges against Happ, since Judge Thurman left the case before such dismissal was sought by the defense.
We agree with the petitioner that Judge Lockett erred in concluding that it was "reasonable" for the prosecutor to pose the question which triggered the mistrial originally. The question was clearly improper and Judge Thurman so held at the time. That determination was final and could not be revisited by Judge Lockett. Nevertheless, the second paragraph of Judge Lockett's order constitutes a determination that the question by the state attorney in the first trial was not intentionally designed to provoke a mistrial. The latter issue was properly before Judge Lockett by virtue of the defense motion to dismiss filed on January 30, 1989. Although it appears that Judge Thurman may well have made a different legal determination had this matter been presented to him, we cannot find that Judge Lockett's denial of the motion to dismiss lacks record support. The trial prosecutor testified at the evidentiary hearing held on the motion to dismiss that his offending question was motivated by his conception of the law of impeachment rather than an intent to provoke a mistrial. That testimony apparently was credited by Judge Lockett, which was his prerogative. Id. at 1283-84.
In Oregon v. Kennedy, 456 U.S. 667, 72 L. Ed. 2d 416, 102 S. Ct. 2083 (1982), the United States Supreme Court explained that, when a defendant requests a mistrial, the double jeopardy clause is not a bar to the retrial, except in those instances where it is established that the judge or prosecutor, by his or her conducts caused the defendant's motion for a mistrial, and the conduct of the judge or prosecutor "was intended to provoke the defendant into moving for a mistrial." Id. at 679. The Court unambiguously explained that, while the conduct of the prosecutor might justify a mistrial, a retrial is not barred unless there was intent on the part of the prosecutor to cause a new trial.
We find that Happ has failed to establish that the prosecutor, by asking the questions, intended to force defense counsel to seek a mistrial. Although the first trial judge initially found the question was in violation of his order, he subsequently concluded that it was legally debatable whether the question was covered by the order and dismissed the contempt citation against the prosecutor. We agree with the district court of appeal that the second trial judge had sufficient evidence before him at an evidentiary hearing to find that the question by the prosecutor in the first trial was not intentionally designed to provoke a mistrial and that the trial judge's holding denying the dismissal of the cause was correct.
Happ's second point concerns the trial court's denial of his motion to suppress statements he made to two Florida investigating officers concerning this case while he was incarcerated on robbery and kidnapping charges in California. The California charges on which he was incarcerated were unrelated to the Florida investigation. The investigators were aware that Happ was represented by California counsel on the California robbery and kidnapping charges. The Florida officers advised Happ of his Miranda 2 rights, after which he signed a waiver and agreed to talk to them concerning the Florida offense. The only statement made by Happ to the investigators which was introduced at trial was a denial by Happ of any knowledge of why his fingerprints were found on the victim's car. Happ claims that the statement should be suppressed because the investigating officers did not advise him that he had a right to confer with his California lawyers before being interviewed. The trial judge denied the motion to suppress, finding that Happ knowingly, intelligently, and voluntarily waived his Miranda rights prior to the questioning, as evidenced by the investigator's testimony and the signed waiver. The trial judge found that Happ had not invoked his Fifth Amendment rights and had voluntarily waived them. Furthermore, he held that, although Happ was represented by counsel in his unrelated California cases, the United States Supreme Court's decisions in Arizona v. Roberson, 486 U.S. 675, 108 S. Ct. 2093, 100 L. Ed. 2d 704 (1988), and Michigan v. Jackson, 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986), did not preclude the Florida investigating officers from questioning Happ in regards to the Florida crimes after Happ had validly waived his Fifth Amendment rights.
2 Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
Happ argues that, once a defendant invokes his Sixth Amendment right to counsel on pending criminal charges, this right also applies to any subsequent interrogation on any unrelated investigation. He contends that his requests for counsel in Pennsylvania and California on the California charges require that no interrogation on any unrelated crimes can be initiated by officers from other states under Roberson and Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378 , 101 S. Ct. 1880 (1981). We disagree. We find that the United States Supreme Court's decision in McNeil v. Wisconsin, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991), answers the question contrary to Happ's view. That Court held that a person's Sixth Amendment right to counsel does not attach until the initiation of adversarial proceedings and is offense-specific. It explained:
It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced . . . . And just as the right is offense-specific, so also its Michigan v. Jackson effect of invalidating subsequent waivers in police-initiated interviews is offense-specific. Id. at 2207. Because adversarial proceedings had not been initiated against Happ on the Florida crimes when the questioning occurred, the fact that he was represented by counsel on unrelated charges in California did not invoke his Sixth Amendment right to counsel in regards to the investigation of the Florida crimes. The critical factor is the voluntariness of the waiver. No Fifth Amendment right to counsel existed, and, once Happ properly waived his Miranda rights, the statements were admissible. Accordingly, we conclude that the trial court did not err in denying Happ's motion to suppress the statements made to the Florida investigators.
The next claim that merits discussion is Happ's fifth claim in which he asserts that the State failed to offer valid, nonracial reasons for striking a black juror. After the State exercised a peremptory challenge, defense counsel objected. The state attorney responded by explaining that the juror, as a psychology teacher at a community college and a Catholic, was more liberal than people in other professions and would be inclined not to believe in the death penalty. Counsel for the defendant did not contest these reasons, and we find that the trial court properly, within its discretion, accepted these reasons as race-neutral. The State does not have to establish grounds sufficient to have the juror excused for cause. We conclude that the trial court was within its discretionary authority to accept the reasons given by the State as race-neutral. We find no violation of State v. Neil, 457 So. 2d 481 (Fla. 1984), clarified, State v. Castillo, 486 So. 2d 565 (Fla. 1986); State v. Slappy, 522 So. 2d 18 (Fla.), cert. denied, 487 U.S. 1219, 101 L. Ed. 2d 909, 108 S. Ct. 2873 (1988), and their progeny.
In his sixth claim, Happ asserts that the jailhouse informant's testimony regarding his unavailability to testify at trial should not have been presented to the jury. The issue relates to the appropriateness of the preamble explaining why the witness was unavailable, not the unavailability of the witness. Counsel for both the State and Happ had an opportunity to examine the witness prior to the second trial. This examination revealed that the witness was mentally and physically unable to testify, having been stabbed and gang-raped and suffering a nervous breakdown while in prison. The witness was at the time scheduled to start physical therapy and psychological counseling. The trial court found that the witness was unavailable to testify and ruled that his testimony at the first trial could be read to the jury, including Miller's explanation of why he could not be present to testify. Given this record, we find that the trial court did not abuse its discretion in allowing this evidence to be presented in this manner under these circumstances. Jent v. State, 408 So. 2d 1024 (Fla. 1981).
In the penalty phase, Happ claims that the trial court erred in: (1) refusing to admit evidence of plea negotiations; (2) finding that the murder was especially heinous, atrocious, or cruel; (3) failing to hold that the death penalty was disproportionate to the facts of the case; and (4) in failing to find that death penalty unconstitutional. Happ's only point with regard to the penalty phase that merits discussion concerns the use of the aggravating circumstance that the murder was committed in a cold, calculated, and premeditated manner. While there is no question that the other aggravating circumstances have been clearly established beyond a reasonable doubt, we must agree with Happ that the State presented no evidence to illustrate any prior calculation or prearranged plan or design to establish the cold or calculating elements of this aggravating circumstance. The elimination of this aggravating circumstance does not eliminate any facts and circumstances that could appropriately be considered in the sentencing process in imposing the death penalty. Given the record and the other established aggravating circumstances, we find that the elimination of this circumstance would not have changed the sentence imposed in this case. The remaining claims are without merit and require no discussion.
Accordingly, Happ's convictions and sentences, including the sentence of death, are affirmed. It is so ordered. SHAW, C.J. and OVERTON, McDONALD and GRIMES, JJ., concur. BARKETT, J., concurs in result only with an opinion, in which KOGAN, J., concurs.
BARKETT, J., concurring in result.
I believe that the statement obtained by Florida investigating officers while Happ was incarcerated in California was obtained in violation of Happ's right to counsel under article I, section 9 of the Florida Constitution. When Happ attended first appearance in California on the robbery and kidnapping charges, he requested and received appointment of counsel. For the reasons expressed in my partial dissenting opinion in Traylor v. State, 596 So. 2d 957, 1992 Fla. LEXIS 90, 17 Fla. Law W. S 42 (Fla. 1992) (Barkett, J., concurring in part, dissenting in part), I would find that police were thereafter prohibited from initiating questioning of Happ as to any offense and thus his statement was inadmissible. However, in light of the physical evidence at trial as well as the nature of the statement itself, I would find its admission was harmless beyond a reasonable doubt.
DISSENT BY: KOGAN (In Part)
I dissent from that portion of the majority opinion finding Happ's statements to the Florida authorities admissible, for the reasons expressed more fully in my partial dissent to Traylor v. State, 596 So. 2d 957, 1992 Fla. LEXIS 90, 17 Fla. Law W. S 42 (Fla. 1992) (Kogan, J., concurring in part, dissenting in part). I agree with Justice Barkett, however, that the error was harmless.
Happ v. Moore, 784 So. 2d 1091 (Fla. 2001). (State Habeas)
PROCEDURAL POSTURE: Petitioner filed a Fla. R. Crim. P. 3.850 motion for writ of habeas corpus in which he alleged ineffective assistance of appellate counsel stemming from an appeal from his convictions for first-degree murder, burglary of a conveyance with a battery therein, kidnapping, and sexual battery.
OVERVIEW: Petitioner was convicted for first-degree murder, burglary of a conveyance, kidnapping, and sexual battery. On the murder charge he was sentenced to death. He filed a petition for a writ of habeas corpus, wherein he alleged multifarious grounds of ineffective assistance of appellate counsel, including failing to point out in the motion for rehearing that the court relied on inaccurate facts, and failing to argue the trial court erred by finding a witness unavailable to testify and by allowing his former testimony. The court held to establish ineffective assistance of appellate counsel, petitioner was required to show specific errors indicating counsel's performance fell outside the range of professionally acceptable performance, and the deficient performance compromised the appellate process so as to undermine confidence in the fairness and correctness of the appellate result. The court denied the petition, holding petitioner failed to meet his burden of proof as his appellate counsel could not be deemed ineffective for failing to raise unpreserved or non-meritorious issues on appeal and because the petition was improperly utilized to reargue facts previously decided.
OUTCOME: Petition denied, because appellate counsel could not be deemed ineffective for failing to raise unpreserved or non-meritorious issues on appeal, a writ of habeas corpus could not be used to reargue previously decided issues, and the balance of petitioner's claims were found baseless in fact.
William Frederick Happ petitions this Court for writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(9), Fla. Const. For the reasons stated below, we deny Happ's petition.
The facts in this case are set forth in greater detail in Happ v. State, 596 So. 2d 991 (Fla. 1992). Briefly stated, the victim's body was found on the bank of the Cross-Florida Barge Canal in Citrus County. She had been strangled, beaten and raped prior to death. The cause of death was strangulation. Happ's first trial ended in a mistrial because the prosecutor violated an order in limine. At the second trial, the jury convicted Happ of first-degree murder, burglary of a conveyance with a battery therein, kidnaping, and sexual battery likely to cause serious personal injury. On the first-degree murder charge, the jury recommended the death penalty by a vote of nine to three. See id. at 993. The judge sentenced Happ to death, finding four aggravating factors 1 and three mitigating factors. 2
1 The aggravators included: (1) Happ was previously convicted of a prior violent felony; (2) the murder was committed during the commission of sexual battery; (3) the murder was especially heinous, atrocious, or cruel (HAC); and (4) the murder was cold, calculated and premeditated (CCP). 2 These included: (1) Happ's age; (2) his family history; and (3) his educational aid to other inmates.
On appeal, this Court struck the trial court's finding as to CCP because the State presented no evidence to establish the cold or calculating elements of the aggravator. See Happ, 596 So. 2d at 997. However, despite the elimination of the CCP aggravator, this Court affirmed Happ's convictions and sentence. See id. The United States Supreme Court vacated judgment and remanded the case to this Court for further consideration in light of Espinosa v. Florida, 505 U.S. 1079, 120 L. Ed. 2d 854, 112 S. Ct. 2926 (1992), concerning the jury instruction for the heinous, atrocious, or cruel aggravating factor. See Happ v. Florida, 506 U.S. 949, 121 L. Ed. 2d 325, 113 S. Ct. 399 (1992). On remand, this Court found a challenge to the instruction on the grounds of vagueness had not been preserved for review because no objection on that ground had been asserted at trial. See Happ v. State, 618 So. 2d 205 (Fla. 1993). However, this Court ruled alternatively that were it to address the issue, it would find that the reading of the defective instruction was harmless and could not have affected the jury's recommendation because the facts supported a finding of HAC. Id. at 206. Thus, we concluded that "regardless of the instruction given, the jury would have recommended and the trial judge would have imposed the same sentence." Id.
Happ filed an amended motion for postconviction relief on October 12, 1995, in which he raised thirty-two claims. 3 After an evidentiary hearing on Happ's alleged Brady violation (claim III), the trial court denied Happ's motion for postconviction relief and Happ appealed. By order dated September 13, 2000, this Court dismissed the appeal without prejudice to allow Happ to further amend his 3.850 motion on four issues. 4 We affirmed the trial court's order on all other issues.
3 These claims included: (1) Happ is deprived of effective representation because CCR lacks sufficient funds; (2) public records are being withheld; (3) State withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and used misleading evidence in violation of Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972), and as a result counsel was rendered ineffective; (4) ineffective assistance of counsel (guilt phase); (5) newly discovered evidence that Happ is innocent of the crime; (6) jury instruction on cold, calculated and premeditated aggravator violates Espinosa v. Florida, 505 U.S. 1079, 120 L. Ed. 2d 854, 112 S. Ct. 2926 (1992), and trial counsel was ineffective for allowing it to be read; (7) jury instruction on prior violent felony aggravator violates Espinosa and trial counsel was ineffective for not objecting; (8) heinous, atrocious or cruel aggravator is unconstitutionally vague and trial counsel was ineffective for not objecting; (9) murder committed during felony aggravator is unconstitutionally vague and counsel was ineffective for not properly litigating this issue; (10) trial court failed to find mitigating evidence established in the record; (11) prosecutor made improper and inflammatory comments; (12) jury was misinformed of its advisory role and counsel was ineffective for failing to object; (13) the penalty phase jury instructions shifted the burden of proof to the defendant and counsel was ineffective for failing to object; (14) newly discovered evidence established that State witness Richard Miller was working for the State and had lied during his prior testimony; (15) counsel was ineffective for failing to object to improper prosecutorial comments; (16) Florida's capital sentencing scheme is unconstitutional; (17) prosecutor improperly instructed jury that it must recommend death and counsel was ineffective for not objecting; (18) ineffective assistance of counsel (penalty phase); (19) the prohibition in the Florida Bar's Rules of Professional Conduct against interviewing jurors is unconstitutional; (20) juror misconduct; (21) trial court erroneously admitted illegally obtained statements and evidence; (22) police misconduct; (23) Happ's sentence is unreliable because of Miller's perjured testimony; (24) Happ was denied the ability to present crucial testimony on his behalf; (25) Happ was illegally extradited from California; (26) State improperly struck jurors based upon Catholic religion; (27) trial court failed to take a recess before imposing sentence and trial counsel was ineffective for not objecting; (28) jury was never sworn; (29) poor condition of record; (30) cumulative errors deprived Happ of fair trial; (31) the State unconstitutionally used jailhouse informants to obtain incriminating statements; and (32) prosecutorial misconduct and counsel was ineffective for failing to object.
4 These issues include: (1) counsel's failure to investigate the origins of an unknown hair sample; (2) counsel's failure to investigate and present mitigating evidence; (3) counsel's failure to object or otherwise challenge the State's case; and (4) whether DNA evidence demonstrates Happ's innocence.
Prior to the issuance of this Court's order on the 3.850 appeal, Happ filed this petition for habeas corpus, in which he alleged four claims for relief based on ineffective assistance of appellate counsel. On October 31, Happ filed a supplemental petition for habeas relief, in which he alleged an additional instance of ineffective assistance of appellate counsel. Each of Happ's five claims will be addressed in turn.
Standard of Review
Claims alleging ineffective assistance of appellate counsel are properly raised in a petition for writ of habeas corpus, subject to the following rules and requirements. The requirements for establishing a claim based on ineffective assistance of appellate counsel parallel the standards announced in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). "[The] [p]etitioner must show 1) specific errors or omissions which show that appellate counsel's performance deviated from the norm or fell outside the range of professionally acceptable performance and 2) the deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result." Wilson v. Wainwright, 474 So. 2d 1162, 1163 (Fla. 1985); see also Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000); Suarez v. Dugger, 527 So. 2d 190 (Fla. 1988). Counsel cannot ordinarily be considered ineffective under this standard for failing to raise issues that are procedurally barred because they were not properly raised during the trial court proceedings. See Rutherford v. Moore, 774 So. 2d 637 (Fla. 2000); Robinson v. Moore, 773 So. 2d 1 (Fla. 2000). Moreover, appellate counsel cannot be deemed ineffective for failing to raise non-meritorious claims on appeal, see Rutherford, or claims that do not amount to fundamental error. See Roberts v. State, 568 So. 2d 1255 (Fla. 1990) (holding that appellate counsel's failure to raise a claim which was not preserved for review and which does not present a question of fundamental error does not constitute ineffective performance warranting relief). Applying these rules to the case at hand, we conclude that Happ has not demonstrated a basis for relief.
As his first claim in the initial petition, Happ argues that his appellate counsel was ineffective during the direct appeal because he failed to point out additional grounds for challenging the trial court's ruling concerning the admissibility of the testimony of a defense witness, Hugh Lee, who would have presented impeachment evidence against the State's witness, Richard Miller. 5 During the direct appeal, Happ's appellate counsel argued that the trial court erred in refusing to allow Lee to testify as an impeachment witness against Miller. In so arguing, counsel maintained that Miller was concerned that his prior testimony "would come back to haunt him," that he admitted to lying during his testimony at Happ's initial trial and that the state prosecutor had told him to lie. Happ now contends that appellate counsel did not go far enough--he should have also argued that Lee would have testified that Miller was given answers to the questions and that the reason he did not want to testify was not because he was sick, but because he was concerned about his own case and that his previous testimony could be used against him.
5 As noted in the fact section of this opinion, Happ's first trial ended in a mistrial. During the initial trial in this case, witness Richard Miller testified for the State against Happ. Miller was a jailhouse informant who provided the only direct evidence against Happ as to how the crime occurred. According to Miller, Happ confessed to killing the victim. During Happ's second trial, Miller refused to testify against Happ. On July 25, 1989, prior to opening remarks, the trial court heard Miller's reasons for not wanting to testify. Apparently, Miller had been attacked and gang-raped while imprisoned in a penitentiary in another state. On the basis of Miller's testimony, the trial court ruled that Miller was unavailable to testify. As a result, the trial court permitted the State to read to the jury Miller's testimony from the first trial.
Two days later, after Miller's former testimony had been read into evidence, but before the State had rested its case, Happ's attorney presented witness Hugh Lee who allegedly had proof that Miller had admitted to lying during his testimony at the initial trial. Lee was a public defender whom Miller had asked to speak with prior to the trial's commencement. The trial court ruled that the attorney-client privilege would not prevent Lee from telling the court what Miller had said and permitted trial counsel to proffer Lee's testimony. Lee testified that Miller had confessed to lying during his trial testimony, that prosecutor Brad King had provided him with answers to questions and that he was concerned that his testimony could be used against him if he were given a new trial. However, the questions to which Miller referred related to whether he had asked for an attorney. Miller did not admit to lying about evidence concerning Happ's involvement in the case. After hearing Lee's testimony, the trial court ruled that Lee's testimony was irrelevant and immaterial and, therefore, Lee would not be permitted to testify. Appellate counsel challenged the trial court's ruling on appeal. This Court rejected the claim as meritless without further discussion. See Happ, 596 So. 2d at 993.
Contrary to Happ's assertion, however, appellate counsel argued the alleged omitted facts. Appellate counsel provided the following facts in the initial brief filed on Happ's behalf: Miller told Lee that his testimony at Happ's trial might come back to haunt him in the event that Miller somehow received a new trial. . . . Miller then admitted that he had lied during his testimony at Happ's trial. He also revealed that Brad King, the prosecutor in Happ's trial, told Miller to lie. Specifically, King told Miller to answer negatively if he was questioned about asking for a lawyer before speaking to law enforcement officials.
Appellant's Initial Brief at 55-56, Happ v. State, 596 So. 2d 991 (Fla. 1992) (No. 74634) (references to record omitted). In arguing to this Court that the trial court erred in excluding Lee's testimony, appellate counsel made the following points: Appellant reminds this Court that Richard Miller's testimony was absolutely critical to the state's case. Miller's testimony provided the only confession allegedly made by Happ. Miller's testimony provided the only details of the crimes charged. Without Miller, the state had no case. As such, Richard Miller's credibility was of paramount importance. Hugh Lee's testimony, if allowed by the trial court, would have destroyed what little credibility Richard Miller had. If Lee had testified, the jury would have heard Miller's admission that he lied under oath. The subject matter of the lie is of no import. A bald admission that one has committed perjury is evidence of paramount importance when the case turns on that witness's credibility. The jury also would have heard that the prosecutor suborned perjury, a charge that the prosecutor never denied. Id. at 56-57 (emphasis added).
The brief filed on Happ's behalf conclusively demonstrates that his appellate counsel argued that Miller admitted to lying, that the prosecutor allegedly had provided him with answers to certain questions (regarding legal representation), and that Miller was concerned about his testimony being used against him in the event he received a new trial. The brief further reflects that appellate counsel argued the fact that the prosecutor suborned perjury, which clearly relates to the allegations that Miller lied and the prosecutor had told him to do so. Thus, Happ's claim that appellate counsel failed to argue certain points on appeal is without merit as the record in this case clearly refutes this claim. 6 Rather, it appears that Happ is using this writ to reargue the trial court's order excluding Lee's testimony because he is dissatisfied with the outcome on direct appeal. The writ of habeas corpus is not to be used to reargue issues which have been raised and ruled upon by this Court. See Rutherford; Roberts v. State, 568 So. 2d 1255, 1261 (Fla. 1990).
6 Happ's claim that the trial court ruled prior to listening to Lee's testimony is likewise without merit. The record conclusively shows that the trial court ruled after hearing Lee's testimony. The only decision made by the trial court prior to Lee's proffered testimony concerned whether the attorney-client privilege prevented Lee from testifying as to what Miller had told him. The trial court ruled that such privilege was waived and then allowed Lee to proffer his testimony. Thus, this claim is without merit. Appellate counsel was not ineffective for failing to raise this argument on appeal.
Next, Happ argues that appellate counsel failed to argue on direct appeal that the State had improperly retained a defense mental mitigation expert during the trial court proceedings. The record reflects that on March 2, 1987, the trial court appointed Dr. Krop as a confidential expert to evaluate Happ and to assist the defense in preparation of the defense's case pursuant to rule 3.216(a) of the Florida Rules of Criminal Procedure. 7 Happ was first tried in January 1989. Prior to trial, however, the defense deleted Dr. Krop's name from its witness list and Dr. Krop was not called to testify. Happ was retried in July of 1989. Dr. Krop did not testify during that trial.
7 Rule 3.216(a) states: (a) Expert to Aid Defense Counsel. When in any criminal case counsel for a defendant adjudged to be indigent or partially indigent, whether public defender or court appointed, shall have reason to believe that the defendant may be incompetent to proceed or that the defendant may have been insane at the time of the offense or probation or community control violation, counsel may so inform the court who shall appoint 1 expert to examine the defendant in order to assist counsel in the preparation of the defense. The expert shall report only to the attorney for the defendant and matters related to the expert shall be deemed to fall under the lawyer-client privilege.
Prior to the second trial, the State filed a petition for payment of expert fees alleging that: 1. It is the opinion of the State Attorney that the service performed by said aforementioned doctor [Dr. Harry Krop] was in the form of expert service. 2. That it was necessary and expedient in the interest of justice to have the above expert perform said service which was relevant and pertinent to the issues in the above-entitled cause. Petition for Expert Fees, State v. Happ, No. 88-1037-CF (Fla. 5th Cir. Ct. Apr. 4, 1989). This motion was filed April 4, 1989, approximately two years after Dr. Krop was appointed to assist the defense, but prior to the second trial in this case. The State concedes that Dr. Krop was listed as a witness for the State.
In the petition to this Court, Happ initially alleged that defense counsel was unaware of the State's retention of Dr. Krop. He further alleged that appellate counsel should have noted this apparent conflict of interest in the record, notwithstanding the fact that trial counsel was unaware of the issue, and should have raised it on appeal. However, during oral argument, Happ's counsel conceded that upon closer examination of the record, it was discovered that defense counsel indeed was aware of the State's retention of Dr. Krop. We find this claim to be without merit. Although defense counsel apparently knew that the State had retained Dr. Krop, he did not object or move to strike Dr. Krop from the State's witness list. Therefore, the issue was not preserved for appeal. An appellate counsel may not be deemed ineffective for failing to raise an unpreserved issue on appeal. See Freeman, 761 So. 2d at 1070; Roberts, 568 So. 2d at 1261.
In claim three of the petition, Happ argues that appellate counsel failed to point out in the motion for rehearing that this Court had relied on inaccurate facts. He claims that, contrary to the facts stated in the majority opinion, (1) the record does not indicate that the shoe found outside the victim's car matched Happ's shoe; (2) witness Ambrosino testified that Happ was at Holiday Drive and Highway 44, not Highway 19; (3) witness Ambrosino merely stated that he "believed" Happ's hand was swollen; and (4) Happ's girlfriend testified that Happ had told her about breaking a car window prior to the murder in this case, not the victim's window. Happ argues that had appellate counsel pointed out these errors to the Court in the motion for rehearing, as well as arguing that the trial court erred in refusing to allow Lee to testify during the trial, this Court would have had a substantially different picture of Happ's trial.
To properly analyze Happ's claim, we consider each statement in turn. Statement One: This Court's opinion on direct appeal states: "A shoe print found outside the driver's side of the car was later found to match one of Happ's shoes." Happ, 596 So. 2d at 992. The crime lab analyst who examined the shoe print found at the scene of the crime, however, was unable to say with certainty that Happ's tennis shoe made the track impression of the shoe print. His opinion was simply that Happ's shoe could have made the impression. The reason he could not be certain was because the shoe print did not contain enough individual characteristics to differentiate it from any other tennis shoe of the same make and design. Thus, Happ is correct that the factual statement in our opinion was inaccurate.
Statement Two: This Court's opinion states: "[A] friend of Happ's testified that he had seen Happ walking down U.S. Highway 19 toward the barge canal at 11 p.m. on May 23 . . . ." Id. Upon review of the record, we agree that this statement is not quite accurate. The "friend," Vincent Ambrosino, actually testified that on Friday, May 23, he last saw Happ at Holiday Drive and Highway 44. According to Ambrosino, Happ was walking in the direction of his house, which was located on Highway 19. The barge canal was located past Happ's house, heading in the same direction. Ambrosino last saw Happ at 11 p.m.
Statement Three: Our opinion states that Happ's friend "saw Happ the next morning with a swollen right hand." Id. This fact accurately reflects the record. Ambrosino testified that Happ had shown him his hand and that it was red and swollen. Happ concedes in his reply brief that this claim was made in error and that this Court's factual account is correct.
Statement Four: As to the final alleged misstatement, our opinion states: "Happ's former girlfriend testified that Happ had told her that he broke a car window with his fist." When read in context of the factual findings in the opinion, 8 this statement incorrectly suggests that Happ told his girlfriend that he had punched the victim's car window. The record reflects that Happ's girlfriend, Jean Marie Pinko, testified that while she and Happ were living in Pennsylvania, he told her that he had once broken a car window with his fist. However, this conversation occurred in Pennsylvania prior to the crime in this case. Thus, to the extent this Court's statement gave the impression that Happ's girlfriend was referring to the victim's car window, such statement was inaccurate.
8 This Court's opinion on direct appeal states in pertinent part: At the second trial, a friend of Happ's testified that he had seen Happ walking down U.S. Highway 19 toward the barge canal at 11:00 p.m. on May 23, and that he saw Happ the next morning with a swollen right hand. Happ's girlfriend testified that Happ had told her he broke a car window with his fist. Happ, 596 So. 2d at 992 (emphasis added).
The Florida appellate rules provide that appellate counsel may notify this Court of any errors or misstatements in the opinion by filing a motion for rehearing or clarification. 9 However, we conclude that counsel's failure to do so in this case did not cause counsel's overall performance to be outside the wide range of professionally acceptable performance. While counsel could have raised these factual misstatements in the motion for rehearing, counsel is not deemed ineffective for failing to do so because not every conceivable claim must be raised. Cf. Kokal v. Dugger, 718 So. 2d 138, 143 n.18 (Fla. 1998). Further, even if counsel had notified this Court of the misstated facts, they would not have altered this Court's conclusion. The facts, once corrected, reveal that the shoe print found at the scene of the crime was consistent with shoes worn by Happ, that Happ was last seen walking in the direction of the barge canal around 11 p.m. on the night in question, and that the next morning Happ's right hand was red and swollen. Finally, Happ's former girlfriend established that Happ had punched in a car window with his fist on a prior occasion, a fact similar to what the State alleged happened in the instant case. Thus, the corrected facts do not significantly alter the events believed to have occurred in this case. Indeed, none of these facts were relied upon by this Court in resolving the legal claims raised by Happ on direct appeal. Finally, none of these facts affect Miller's testimony or his allegedly questionable credibility. 10 Accordingly, we find this claim to be without merit as Happ has failed to demonstrate that his "appellate counsel's performance deviated from the norm or fell outside the range of professionally acceptable performance" or that counsel's omission "compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result." Wilson, 474 So. 2d at 1163; see also Rutherford; Freeman.
9 See Fla. R. App. P. 9.330 (a) (1988) ("A motion for rehearing or clarification shall state with particularity the points of law or fact that the court has overlooked or misapprehended."). In this case, appellate counsel filed a motion for rehearing, but did not notify the Court of any errors in its factual recitation of the evidence.
10 As part of this claim, Happ reargues the fact that appellate counsel erred in not challenging the denial of Lee's impeachment evidence.
In claim four, Happ argues that appellate counsel rendered ineffective assistance of counsel by failing to argue that the trial court erred in finding Miller unavailable to testify. He claims that he was deprived of his constitutional right to confront the witnesses against him because the trial court allowed Miller's former testimony in evidence in lieu of his testifying in person. Happ further maintains that appellate counsel failed to argue that the trial court's reliance on section 90.804(1)(b), Florida Statutes (1989), was error because that section does not apply in this case. Rather, Happ contends that the trial court should have followed rule 3.640 of the Florida Rules of Criminal Procedure which sets forth grounds for using former testimony in a new trial. Because none of the requirements of rule 3.640 were met, Happ claims the trial court erred in allowing Miller's former testimony to be read to the jury.
The record reflects that appellate counsel argued on direct appeal that the trial court erred in admitting Miller's testimony concerning his reasons for not being able to testify in person. Miller's testimony had been taken outside the presence of the jury and then later read to the jury after the judge had determined that Miller was unavailable to testify. Appellate counsel did not argue on direct appeal that the trial court erred in finding Miller to be unavailable and in permitting his former testimony to be read to the jury. Thus, this claim is properly before the Court.
However, contrary to Happ's assertion, trial counsel did not object to Miller's unavailability or to the admission of Miller's former testimony. Trial counsel's objection concerned only the admission of Miller's reason for his unavailability to testify. In fact, trial counsel conceded that the court could find Miller unavailable to testify under section 90.804(1)(b) of the Evidence Code (stating that a witness is unavailable where he or she "[p]ersists in refusing to testify concerning the subject matter of the statement despite an order of the court to do so"). At the time Miller's testimony was read to the jury, trial counsel did not object. Thus, trial counsel did not preserve the specific arguments now raised by Happ in this petition. As such, appellate counsel cannot be faulted for failing to raise claims that were not preserved for appeal. See Roberts, 568 So. 2d at 1261.
As noted above, however, "an exception may be made where appellate counsel fails to raise a claim which, although not preserved at trial, presents a fundamental error." Robinson, 773 So. 2d at 4; see also Roberts, 568 So. 2d at 1261. Happ asserts the trial court committed fundamental error by admitting Miller's former testimony instead of requiring Miller to testify in person because Happ was deprived of his constitutional right to confront Miller. He further argues that the trial court misapplied section 90.804 and that the trial court should have relied on rule 3.640 of the Rules of Criminal Procedure. We note that Happ raised these same arguments, albeit in a cursory manner, in his appeal from the denial of his 3.850 motion (i.e., that trial counsel was ineffective for failing to object to the admission of Miller's former testimony). The trial court denied relief on this claim and this Court affirmed that decision in its order of September 13, 2000. Happ v. State, 770 So. 2d 158 (Fla. 2000). Happ's habeas petition appears to be an attempt to reargue the same issues, but this time under the guise of ineffective assistance of appellate counsel. See Kokal, 718 So. 2d at 143-44.
As for the merits of the claim, we find that Happ's contention that he was deprived of his constitutional right to confront Miller under the circumstances of this case does not rise to the level of fundamental error and, therefore, is without merit. In Thompson v. State, 619 So. 2d 261 (Fla. 1993), this Court held that where a party intends to admit former testimony of a witness, the confrontation clause requires that the party against whom the testimony is admitted "have an opportunity at the prior proceeding to cross-examine the witness." Id. at 265. If the party challenging the admission of former testimony had the opportunity to cross-examine the witness, there is no confrontation clause violation. See id.
Here, Miller testified at the first trial. During that trial, defense counsel cross-examined Miller. At the second trial, Miller's entire trial testimony, including cross-examination, was read to the jury. Therefore, under Thompson, there does not appear to be a patent confrontation clause violation and the trial court did not abuse its discretion in allowing Miller's former testimony to be read to the jury. Even if this argument had been raised on direct appeal, it appears that this Court would have found the claim to be without merit. Appellate counsel cannot be faulted for failing to raise a meritless claim on appeal. See Kokal.
As for Happ's second contention, that the trial court misapplied section 90.804 of the Evidence Code, we find that claim to be without merit as well. Section 90.804 states: (1) DEFINITION OF UNAVAILABILITY.-- "Unavailability as a witness" means that the declarant: (a) Is exempted by a ruling of a court on the ground of privilege from testifying concerning the subject matter of his statement; (b) Persists in refusing to testify concerning the subject matter of his statement despite an order of the court to do so; (c) Has suffered a lack of memory of the subject matter of his statement so as to destroy his effectiveness as a witness during the trial; (d) Is unable to be present or to testify at the hearing because of death or because of then existing physical or mental illness or infirmity; or (e) Is absent from the hearing, and the proponent of his statement has been unable to procure his attendance or testimony by process or other reasonable means.
However, a declarant is not unavailable as a witness if such exemption, refusal, claim of lack of memory, inability to be present, or absence is due to the procurement or wrongdoing of the party who is the proponent of his statement in preventing the witness from attending or testifying. § 90.804, Fla. Stat. (1989). As noted above, trial counsel conceded that the court could admit Miller's former testimony under subsection (1)(b) (refusal to testify).
The record reflects that Miller recently had been stabbed and gang-raped while in prison in Oklahoma, that he was currently recovering from that incident, and that he was undergoing physical therapy and psychological counseling as a result of the incident. Miller testified that he was emotionally and physically unable to testify and that he did not care that his refusal to testify would subject him to additional jail time; he was currently serving a twenty-three-year sentence of imprisonment. Thus, Miller made it quite clear to the court that he was not going to testify despite the possibility of fines or imprisonment. Under these circumstances, a court order would have been futile. Accordingly, Happ's claim that the trial court misapplied section 90.804 is without merit. See Stano v. State, 473 So. 2d 1282, 1286 (Fla. 1985) (holding that trial court did not abuse its discretion in declaring parents of victim unavailable under section 90.804(1)(b) where parents repeatedly refused to testify despite threat of imprisonment or fines). Appellate counsel cannot be deemed ineffective for failing to raise a non-meritorious claim on direct appeal. See Kokal, 718 So. 2d at 142.
Finally, Happ argues that the trial court should have applied rule 3.640 of the Florida Rules of Criminal Procedure in determining whether to admit Miller's former testimony. Trial counsel did not raise this argument to the trial court; therefore, this specific argument was not preserved for appellate review. As a result, appellate counsel may not be faulted for failing to raise this argument on appeal. See Freeman.
As for the merits of the claim, it is arguable whether rule 3.640(b) precludes the admission of Miller's former testimony in this case. Rule 3.640(b), which addresses the effect of granting a new trial, states in pertinent part: (b) Witnesses and Former Testimony at New Trial. The testimony given during the former trial may not be read in evidence at the new trial unless it is that of a witness who at the time of the new trial is absent from the state, mentally incompetent to be a witness, physically unable to appear and testify, or dead, in which event the evidence of such witness on the former trial may be read in evidence at the new trial as the same was taken and transcribed by the court reporter. Fla. R. Crim. P. 3.640(b) (emphasis added). The rule places definite limits on when former testimony may be admitted in a new trial. As Happ argues, the rule does not include within its list of circumstances a finding that the witness is "unavailable" based on a refusal to testify. In this respect, rule 3.640 appears to be stricter than section 90.804 (unavailability) with regard to the admissibility of former testimony. In other words, section 90.804 of the Evidence Code permits the admission of former testimony if the declarant is declared unavailable under one of the enumerated grounds, whereas rule 3.640 limits admissibility to one of the grounds stated therein, none of which includes "unavailable due to refusal to testify."
However, we need not decide whether rule 3.640 conflicts with section 90.804 of the Evidence Code because the record in this case supports the trial court's ruling under either provision. Rule 3.640 states that the former testimony may be read in evidence during the new trial if the witness is "physically unable to appear and testify." While the trial court did not so rule, the record supports a finding that Miller was physically unable to testify. He testified that he had been stabbed and gang-raped, that he was in pain, that as result of the attack he suffered a nervous breakdown, and that he was not mentally and physically able to testify. Based on Miller's testimony, had the trial court considered rule 3.640, it likely would have found Miller to be unavailable, and therefore his former testimony to be admissible, even under that rule. Therefore, we find Happ's claim to be without merit as the alleged errors do not rise to the level of fundamental error.
In a supplement to his initial petition, Happ argues that appellate counsel failed to argue on appeal that the trial court's written final order did not conform with the court's oral pronouncement during the sentencing hearing and that the trial court failed to file the written order contemporaneously with its oral pronouncement of sentence as required by Grossman v. State, 525 So. 2d 833 (Fla. 1988). The record reflects that the jury found Happ guilty of first-degree murder on July 28, 1989. The trial court reconvened on July 31, 1989, for the penalty phase of the trial where the jury recommended that Happ be sentenced to death. That same day, the trial court sentenced Happ to death. The record reflects that trial counsel did not object to this procedure. 11 In sentencing Happ, the trial judge read from a preliminary draft of a sentencing order which he had apparently prepared prior to the time the jury rendered its recommendation. After rendition of sentence, the court informed the attorneys that the preliminary draft of the sentencing order would be reduced to a final draft within the next few minutes. The court then asked if the parties wished to be heard on "anything else," to which both the State and the defense answered "no."
11 The record reflects the following colloquy: THE COURT: All right. I intend to sentence at this time. Do I hear any objection, Mr. King [prosecutor]? MR. KING: No, sir. THE COURT: Mr. Pfister [defense counsel]? MR. PFISTER: No, your honor.
Thus, the record very clearly illustrates that trial counsel did not object to the trial court's oral pronouncement of sentence or the procedure utilized and disclosed by the court in rendering sentence. Because of trial counsel's failure to properly object, we conclude that appellate counsel cannot be deemed ineffective for failing to raise this issue on appeal. See Roberts, 568 So. 2d at 1261. 12
12 In so holding, however, we do not wish to be interpreted as approving the procedure utilized by the trial court. In Grossman v. State, 525 So. 2d 833 (Fla. 1988), receded from on other grounds, Franqui v. State, 699 So. 2d 1312 (Fla. 1997), this Court held "all written orders imposing a death sentence [shall] be prepared prior to the oral pronouncement of sentence for filing concurrent with the pronouncement." 525 So. 2d at 841 (emphasis added). "The purpose of this requirement is to reinforce the court's obligation to think through its sentencing decision and to ensure that written reasons are not merely an after-the-fact rationalization for a hastily reasoned initial decision imposing death." Perez v. State, 648 So. 2d 715, 720 (Fla. 1995).
In Spencer v. State, 615 So. 2d 688 (Fla. 1993), we set forth the sentencing procedure for all trial courts to utilize in presiding over capital cases. Pursuant to this procedure, following a jury recommendation of death, the trial court must conduct a sentencing hearing, wherein the attorneys for the State and the defendant would be permitted to argue the existence of aggravating and mitigating circumstances and present additional evidence. After considering the attorneys' arguments, as well as the evidence and legal memoranda submitted, the trial court must recess to consider which sentence to impose. The obvious import of our decisions in Grossman and Spencer was to ensure that trial judges take the time to consider all relevant circumstances and arrive at an informed decision uninfluenced by haste and initial impressions. While Spencer had not yet been decided, we are troubled by the fact that the trial court here had prepared a sentencing order before the jury had even issued its recommendation.
For the reasons asserted in this opinion, we hereby deny Happ's initial and supplemental petitions for writ of habeas corpus. It is so ordered. SHAW, HARDING, ANSTEAD, PARIENTE, LEWIS, and QUINCE, JJ., concur. WELLS, C.J., concurs in result only.
Happ v. State, 922 So. 2d 182 (Fla. 2005). (PCR)
PROCEDURAL POSTURE: Petitioner prisoner, who was convicted of first-degree murder and sentenced to death, appealed the denial by the Circuit Court in and for Citrus County (Florida) of his motion for postconviction relief. The prisoner argued that his trial counsel was ineffective for, inter alia, failing to effectively cross-examine an alibi witness and call another alibi witness, failing to have a hair tested, and failing to call an expert as to a shoe print.
OVERVIEW: The victim's body was found on the bank of a barge canal. A pair of stretch pants were tied tightly around her neck. Witnesses saw a small car at a store at approximately 2:40 a.m. and heard a woman scream. The victim's car was found approximately six-tenths of a mile south of that store. A shoe print found outside the driver's side of the car was later found to match one of the prisoner's shoes. The prisoner's fingerprints were found on the car. The appellate court held that the prisoner failed to establish that his trial counsel was deficient in failing to call an alibi witness as counsel presented an alibi witness whose testimony was in direct conflict with the non-submitted alibi testimony. Thus, defense counsel could not call both witnesses. Also, calling the other witness would have created additional problems for the defense. Trial counsel made a strategic decision not to have an unknown hair compared to the individual at the medical examiner's office. If the hair remained unknown, the defense had a basis for arguing that there was an unknown assailant who was responsible for the crime. In regard to a shoe print, defense counsel felt it did not need to be rebutted.
OUTCOME: The judgment of the trial court was affirmed.
William Happ, a prisoner under a sentence of death for a conviction of first-degree murder, appeals an order of the circuit court denying his amended motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we affirm.
FACTS AND PROCEDURAL HISTORY
The underlying circumstances of the case against Happ are set out in this Court's decision in Happ's direct appeal.
[O]n May 24, 1986, a fisherman found the partially clad body of a woman on the bank of the Cross-Florida Barge Canal in northwest Citrus County. The woman's shoulders were covered by a tee shirt that was pulled up to her underarms, and a pair of stretch pants were tied tightly around her neck. The medical examiner testified that her face and skull were badly bruised and hemorrhaged, that she had multiple scrapes on her back and right heel, that she had suffered ten to twenty hard blows to the head, and that she had been anally raped before death. The cause of death was found to be strangulation.
The victim had driven from Fort Lauderdale to Yankeetown to visit a friend. Several newspaper carriers claimed to have seen a small car at a Cumberland Farms store in Crystal River at approximately 2:40 a.m. on May 24, and to have heard a woman scream at approximately the same time. The victim's car was found on May 25 at a restaurant on U.S. Highway 19, approximately six-tenths of a mile south of the Cumberland Farms store. The window on the driver's side of the car had been shattered. The glass from the car was consistent with glass found at the Cumberland Farms store and at the canal where the victim's body was found. A shoe print found outside the driver's side of the car was later found to match one of Happ's shoes. Happ's fingerprints were also found on the exterior of the car. Happ v. State, 596 So. 2d 991, 992 (Fla.), vacated, 506 U.S. 949, 113 S. Ct. 399, 121 L. Ed. 2d 325 (1992). Happ was indicted for first-degree murder, burglary of a conveyance with a battery therein, kidnapping, and sexual battery likely to cause serious personal injury. Id. Happ's first jury trial ended in a mistrial after the prosecutor violated an order in limine. Id. Prior to the second trial, Happ filed a motion to dismiss the indictment on double jeopardy grounds based on the trial court's finding of the prosecutor's intentional misconduct in violating the order in limine. Id. The motion to dismiss was denied. On retrial, the jury convicted Happ on all counts and recommended the death penalty by a vote of nine to three. Id. at 992-93. The trial judge subsequently sentenced Happ to death for the murder of the victim and to three consecutive life sentences on the other three counts. Id.
On direct appeal, this Court affirmed Happ's convictions and sentences, including the sentence of death, but disapproved the aggravator of cold, calculated, and premeditated (CCP) as unsupported by the evidence. Id. at 997. The United States Supreme Court vacated the judgment and remanded the case to this Court for further consideration in light of Espinosa v. Florida, 505 U.S. 1079, 112 S. Ct. 2926, 120 L. Ed. 2d 854 (1992), concerning the jury instruction for the heinous, atrocious, or cruel (HAC) aggravating factor. See Happ v. Florida, 506 U.S. 949, 113 S. Ct. 399, 121 L. Ed. 2d 325 (1992). On remand, this Court found a challenge to the instruction on the ground of vagueness had not been preserved for review and ruled in the alternative that the reading of the defective instruction was harmless and could not have affected the jury's recommendation. See Happ v. State, 618 So. 2d 205, 206 (Fla. 1993).
Happ filed an amended motion for postconviction relief on October 12, 1995, in which he raised thirty-two claims.1 After an evidentiary hearing on an alleged Brady violation, the trial court denied all of the claims asserted in Happ's motion for postconviction relief, and Happ appealed. Happ, 784 So. 2d at 1094. Subsequently, by an order dated September 13, 2000, this Court affirmed the trial court's order as to most claims but dismissed the appeal without prejudice to allow Happ to further amend his 3.850 motion on four issues: (1) his counsel's failure to investigate the origins of an unknown hair sample; (2) his counsel's failure to investigate and present mitigating evidence; (3) his counsel's failure to object to or otherwise challenge the State's case; and (4) whether DNA evidence demonstrated Happ's innocence. Id. at 1094 & n.4.
1 These claims included: (1) Happ was deprived of effective representation because the Capital Collateral Regional Counsel lacked sufficient funds; (2) public records were withheld from him; (3) the State withheld evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and used misleading evidence in violation of Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); (4) his counsel was ineffective during the guilt phase; (5) there was newly discovered evidence that Happ was innocent of the crime; (6) Happ's trial counsel was ineffective for failing to assert that the jury instruction on the CCP aggravator violated Espinosa v. Florida, 505 U.S. 1079, 112 S. Ct. 2926, 120 L. Ed. 2d 854 (1992); (7) his trial counsel was ineffective for not asserting that the jury instruction on the prior violent felony aggravator violated Espinosa; (8) his trial counsel did not challenge whether the HAC aggravator was unconstitutionally vague; (9) Happ's trial counsel did not properly litigate whether the aggravator of "murder committed during felony" was unconstitutionally vague; (10) the trial court failed to find mitigating evidence that was established in the record; (11) the prosecutor made improper and inflammatory comments; (12) Happ's trial counsel did not challenge whether the jury was misinformed of its advisory role; (13) his trial counsel did not challenge whether the penalty phase jury instructions shifted the burden of proof to the defendant; (14) newly discovered evidence established that State witness Richard Miller was working for the State and had lied during his prior testimony; (15) his counsel was ineffective for failing to object to improper prosecutorial comments; (16) Florida's capital sentencing scheme is unconstitutional; (17) Happ's trial counsel did not challenge whether the prosecutor improperly instructed the jury that it must recommend a sentence of death; (18) his counsel was ineffective during the penalty phase; (19) the prohibition in the Florida Bar's Rules of Professional Conduct against interviewing jurors is unconstitutional; (20) juror misconduct occurred; (21) the trial court erroneously admitted illegally obtained statements and evidence; (22) police misconduct occurred; (23) Happ's sentence is unreliable because of Miller's perjured testimony; (24) Happ was denied the ability to present crucial testimony on his behalf; (25) Happ was illegally extradited from California; (26) the State improperly struck jurors based upon the Catholic religion; (27) his trial counsel did not object to the fact that the trial court failed to take a recess before imposing a sentence; (28) the jury was never sworn; (29) the record was in poor condition; (30) cumulative errors deprived Happ of a fair trial; (31) the State unconstitutionally used jailhouse informants to obtain incriminating statements; and (32) his trial counsel did not object to prosecutorial misconduct. Happ v. Moore, 784 So. 2d 1091, 1094 n.3 (Fla. 2001).
Prior to the issuance of this Court's September 13, 2000, order, Happ filed a petition for a writ of habeas corpus, in which he alleged four claims based on ineffective assistance of appellate counsel. Id. at 1094-95. On October 31, 2000, Happ filed a supplemental petition for habeas relief, alleging an additional instance of ineffective assistance of appellate counsel. Id. at 1095. All of these claims were denied. In our opinion denying the habeas petition, we corrected a statement in respect to the shoe print that had been incorrectly stated in our opinion on the direct appeal of Happ's conviction and sentence. Id. at 1098. 2 We specifically held that the corrected facts did not significantly alter the events that were believed to have occurred in this case.
2 This Court acknowledged that the Court's prior opinion on direct appeal was inaccurate when it stated, "A shoe print found outside the driver's side of the car was later found to match one of Happ's shoes." Happ, 596 So. 2d at 992. Based upon the testimony of the crime analyst who examined the shoe, the analyst's opinion was more accurately that Happ's shoe could have made the impression. The reason that the analyst could not be certain was because the shoe print did not contain enough individual characteristics to differentiate it from any other tennis shoe of the same make and design. Happ v. Moore, 784 So. 2d 1091, 1098 (Fla. 2001).
Pursuant to our order, Happ filed a second amended motion for postconviction relief on November 8, 2000. On March 30, 2001, a hearing was held pursuant to Huff v. State, 622 So. 2d 982 (Fla. 1993). At the Huff hearing, the trial court determined that an evidentiary hearing should be held as to the claims arising out of the four issues referred to in this Court's order on remand. An evidentiary hearing was held on May 12 through 14, 2003. Following the hearing, the trial court denied all claims. 3 Happ filed a notice of appeal for review in this Court, asserting that the trial court erred in denying several of his claims. 4
3 An amended order denying Happ's second amended motion to vacate was issued on November 5, 2003. 4 Happ challenges the trial court's rulings on the following claims: (1) his trial counsel was ineffective for failing to challenge the State's case and for failing to effectively cross-examine an alibi witness and call an available alibi witness; (2) his trial counsel was ineffective during the guilt phase for failing to investigate an unknown negroid hair sample and argue its exculpatory value; (3) his trial counsel was ineffective during the penalty phase by failing to investigate and present mitigation regarding Happ's drug abuse history; (4) Happ was denied a full and fair evidentiary hearing because the trial court denied his request to permit expert tests of Happ's shoes and refused to permit proffered evidence of expert witnesses relating to the shoeprint evidence; and (5) his trial counsel was ineffective for failing to hire and use sufficient expert witnesses to challenge the State's case.
INEFFECTIVE ASSISTANCE OF COUNSEL
In ineffective assistance of counsel claims, we have repeatedly held that a defendant must prove two elements: first, that counsel's performance was deficient; and second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Recently, we explained this standard in State v. Davis, 872 So. 2d 250, 253 (Fla. 2004): Claims of ineffective assistance of trial counsel require a showing of deficient performance and prejudice. See generally Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, a defendant must establish conduct on the part of counsel that is outside the broad range of competent performance under prevailing professional standards. See Gore v. State, 846 So. 2d 461, 467 (Fla. 2003). Second, the deficiency must be shown to have so affected the fairness and reliability of the proceedings that confidence in the outcome is undermined. See id. The two prongs are related, in that "the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Rutherford v. State, 727 So. 2d 216, 219 (Fla. 1998) (quoting Strickland, 466 U.S. at 686). In reviewing a trial court's ruling on an ineffective assistance claim, this Court defers to findings of fact based on competent, substantial evidence and independently reviews deficiency and prejudice as mixed questions of law and fact. See Gore, 846 So. 2d at 468; Stephens v. State, 748 So. 2d 1028, 1033-34 (Fla. 1999).
In reviewing claims of ineffective assistance of counsel, we respect the lesson of Strickland, 466 U.S. at 689: Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U.S. 107, 133-134, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982). A fair assessment of attorney performance 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. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that 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." See Michel v. Louisiana, [350 U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (1955)]. We have further held that the defendant bears the burden in establishing this claim. Zakrzewski v. State, 866 So. 2d 688, 692 (Fla. 2003).
Ineffectiveness as to Alibi Witnesses
In his first claim, Happ argues that he was denied effective assistance of counsel because his counsel failed to object to leading questions and did not effectively cross-examine defense alibi witness Vincent Ambrosino and further his counsel failed to call an available defense alibi witness, Carlos Quinones. After an evidentiary hearing, the trial court denied Happ's claim as to counsel's failure to call Quinones, expressly finding that counsel's performance could not be deficient because Quinones' testimony was not "relevant." The trial court also denied the claim as to the failure of counsel to object when the State allegedly asked Ambrosino leading questions. This Court has reviewed the trial record and the record of the evidentiary hearing. Based upon this review, the Court has concluded that the trial court's denial of relief on this basis should be affirmed. 5 We do so based upon the following record and for the following reasons.
5 The briefs of appellant and the State, as well as statements during oral arguments in respect to this issue, were inadequate and not helpful to the Court in resolving this issue. Counsel was specifically asked by the Court at oral argument what had been Happ's defense at the trial. Counsel did not advise the Court that Happ had presented his great aunt, Edna Peckham, as an alibi witness. This was a serious error by both counsel. This Court relies upon counsel to be knowledgeable about the record and to be candid about the record in their briefs and in oral argument. See R. Regulating Fla. Bar 4-1.1; 4-3.3.
In this case, the significant point argued in the briefs and at oral argument was the failure of trial counsel to call Carlos Quinones as an alibi witness to testify that Happ was at the house at which Mr. Quinones lived on the night of the murder. Counsel had an obligation to present all crucial material facts to the Court, including the fact that Happ filed a pretrial notice identifying Mrs. Peckham as an alibi witness, that defense counsel called Mrs. Peckham to testify that Happ was at Mrs. Peckham's house on the night of the murder, and defense counsel argued Mrs. Peckham's testimony in closing argument. Postconviction defense counsel did not address this issue with the candor which the Rules of Professional Conduct require and which this Court expects and requires. Postconviction counsel for the State failed to demonstrate the knowledge of the record which this Court expects and requires. Counsel are admonished for these failures.
Ambrosino was a State witness during the trial. At the time this murder occurred, Ambrosino lived in his mother's home in Crystal River. Ambrosino's stepfather, Carlos Quinones, and two other younger children also resided in Ambrosino's mother's house at the time. Ambrosino met Happ about a month before the night of the murder, which occurred in the early morning hours of Friday, May 24, 1986. Happ had been in Crystal River since March of 1986 and was living at the home of his great aunt, Edna Peckham. Mrs. Peckham's house was north of Crystal River and south of the barge canal 6 in a wooded area close to Highway 19.
6 The barge canal was where the victim's body was found on the morning of May 24, 1986.
Ambrosino became acquainted with Happ at the bowling alley in Crystal River, which was located a short distance from Ambrosino's mother's house. Ambrosino and Happ became friendly and got together every day that month. Most days, they went to the bowling alley. While living at Mrs. Peckham's home, Happ found work as a painter and wallpaper hanger. Mrs. Peckham bought a truck so that Happ could get to work. However, a day or two before the night of the murder, Mrs. Peckham took the truck away from Happ because she found that the truck was low on oil. Ambrosino testified that Happ was supposed to pick him up from his work at McDonald's on Wednesday, May 21, but because Happ had no truck, Happ did not pick him up. Rather, Ambrosino met Happ "around the corner on [Highway] 44" in Crystal River, and they went from there to the bowling alley. After leaving the bowling alley on that Wednesday evening, Ambrosino and Happ each went their separate ways.
Ambrosino and Happ were next together on Thursday evening, May 22. Ambrosino's testimony during the retrial was: Q [BY THE STATE] The next day, Thursday, did you see Mr. Happ again on Thursday? A Yes. Q And where did you see him that day? A Maybe at my house or at the bowling alley. Q You don't exactly remember where? A No, not exactly for sure. Q Do you remember whether or not that Thursday night he actually spent the night at your mother's house with you? A Yes. Q He did? A He spent all night. Q Okay. And that-- This was after you all had met and been wherever you'd been, you don't really remember but you know he spent Thursday night with you. A Yes. Q As a result of him having spent Thursday night with you, was there any friction between you and I think it's your stepfather? A Yes. Q Or was your stepfather at that time. And what was that friction? A He had to get up in the morning and I had woke him to ask him if my friend could stay the night.
Q You woke him up Thursday night and asked him if Mr. Happ could spend the night. He got upset because you woke him and he was going to have to get up and go to work the next day? A Yes. Q The next day would have been Friday, and now we're talking about the 21st, Thursday the 22nd, Friday the 23rd of May, 1986. You and Mr. Happ I assume got up, you're at your mother's house. Do you remember what you did that day? A Went to the bowling alley and about 11:00--11:00 o'clock or so, we started walking home. Q This is 11:00 o'clock in the evening now? A Yes, p.m. Q Had you considered Mr. Happ's spending the night at your house again on Friday night? A I considered it but I didn't want to up--I didn't want to have any more friction with my stepdad. Q You didn't ask him to spend the night Friday night? A No. Q Friday night, May the 23rd, where was the last place that you saw Mr. Happ? A On Holiday Drive and 44. Q And could you on the map again point out to us where that location is? Can you find it? How about right here (indicating)? A Okay. Q Would that be just a little bit to the left of the dot, the dot then would be Manatee Lanes; right? That's the bowling alley? A That's right. Q Right in that area (indicating)? A Yes. Q Which way was Mr. Happ headed when you last saw him? A Toward this direction, toward his house. Q Okay. Do you know where he lives or where he was living at that time? A He lived down Highway 19. It was down around back in the woods. Q Okay. Would it have been up towards the barge canal? A Yes, down toward that way (indicating), but not as far as the barge canal. Q Okay. And what time of evening was this? A Around eleven. Q Eleven p.m.? A P.M. Q This is Friday night? A Yes.
Q The next morning which would have been Saturday morning, May the 24th, did you have the occasion to see Mr. Happ again? A Yes, he came over in the morning. Q Saturday morning? A Around nine o'clock. Q Okay. When he came over that morning, did that cause any problems between you and your stepfather again? A Yes, he didn't--he had a rule he didn't want any company over before 10:00 o'clock on the weekends. Q Okay. And he was off that Saturday? A He didn't go to work, no. Q And that-- Was it not unusual for him because he usually works on Saturday? A Right. Q He usually works Saturday and is off Sunday and Monday? A Right. Q This particular weekend he had Saturday, Sunday, and Monday off? A Yes, sir. Q When you saw Mr. Happ this was again at your mom's house on Gum Street, right off of Gum Street, in Crystal River; is that right? A Yes. Q When you saw him there that morning, did you notice any injuries to either one of his hands? A I believe his right hand was swollen. He told me he hit a tree. His grandmother (sic) took his truck away, and he had to walk home in the middle of the night. Q Got mad and hit a tree? A Yes. Q And did you actually see his hand red and swollen? A Yes, he showed it to me. Q This now was on Saturday morning at about 9:00 o'clock, May the 24th, 1986. A Yes.
Following this direct-examination testimony, Ambrosino was cross-examined by defense co-counsel Mark Nacke. Defense counsel elicited in detail that Ambrosino had stated to the Sheriff's investigator in February of 1987 that Happ had spent the night at Ambrosino's mother's house on the night of Friday, May 23, not on the night of Thursday, May 22, and that Happ showed up again on Sunday, not on Saturday morning. Defense counsel further brought out that Ambrosino had testified in a deposition in October 1988 that Happ had spent the night on Friday night, not on Thursday night. Prior to the trial, the defense filed a notice of alibi witness pursuant to Florida Rule of Criminal Procedure 3.200. In this notice, defense counsel listed Happ's great aunt, Mrs. Peckman, as an alibi witness. After the State rested, the defense called Mrs. Peckham, who testified that in May of 1986, Happ was living at her home with her and her sick husband. At that time, Mrs. Peckham's husband was bedridden and had cancer and Alzheimer's disease. He had also suffered a stroke, which rendered him unable to speak.
Mrs. Peckham testified that Happ was at her home on the evening of May 23 and into the morning hours of May 24. According to Mrs. Peckham, Happ had been in her home for dinner on the evening of May 23 and did not go out after dinner. She was up and down all that evening, taking care of her ailing husband. She further testified that Happ was in her home when she awoke the next morning at 6 a.m. She testified that she was able to determine the date because she had taken the truck away from Happ on May 22. In closing, defense counsel argued that Mrs. Peckham's testimony had established that Happ was at her home on the night of the murder. Specifically, lead defense counsel Jeffery Pfister first addressed Ambrosino's constantly changing testimony in conjunction with Mrs. Peckham's testimony, stating: Okay. Now what does Vince Ambrosino really tell us? He was first interviewed eight-nine months after May of 1986. What does he tell you? First he says--he's got four stories. First, he says [Happ] was with him on Friday night which that's what he first told law enforcement. The defense attorneys weren't there, we weren't messing him up.
Story number one: Bill was with me on that Friday night. The State said, well, let's look at your father's work record, see what that shows. He says okay. That fixes it in my mind, okay, it was Thursday night. That's story number two. Mr. Nacke, my co-counsel, takes his [Ambrosino's] sworn statement October 25, of '88. He then says, yes, I looked over all the records, I'm certain, the statement out in California--prosecutor was there--he says, yes, he was there on Friday night. All the testimony, he was there with him on Friday. He says it was Friday night. He gets into court, I'm refreshed again, I'll say he wasn't with me on the night of the 23rd, it was the night of the 22nd. State's own witness. Mr. Happ has an alibi for this crime [Mrs. Peckham]. He did not commit it. Mr. Pfister later elaborated on the alibi testimony, stating: The evidence he gave you established that for sure he was around on the 23rd, the night of the 23rd of May, 1986. He was home. She [Mrs. Peckham] explained to you how she knew for sure. She knew from the receipt from the truck repair, the truck maintenance. That refreshed her memory. She is not like Vince Ambrosino trying to pull something out of the air nine or ten months later. She was questioned earlier in August, a couple of other times, she didn't know then. The facts came to her when she was selling the car, and that's when it came back to her. . . . . One last piece of evidence, Mrs. Peckham's phone bill. . . . . 5-24, that's in the morning of the 24th, 8:12 a.m. Call was for thirteen minutes. 5-24. 5-24, that's Saturday morning, 8:12 a.m. That's not someone making this up because she's his grand--related to him, he's her grandnephew. A thirteen-minute phone call. She didn't make it. She didn't know this number. Here's the evidence, folks, Sharpsville, PA. Thirteen-minutes, 5-24. Twelve-thirteen minutes, 8:12 in the morning. Thirteen minutes, 8:25 a.m. She testified he was home that day. He was home all night. She was up and down with her sick husband. That's what she was there for. For thirteen minutes, he was making a call. That's there. I can't change it. She didn't make it. She didn't make it.
At the rule 3.850 evidentiary hearing, the defense called Carlos Quinones, who was Ambrosino's stepfather. Mr. Quinones testified that he was brought to Florida by the State in 1989 while Happ's trial was being held and the State took his testimony in a deposition where counsel for both parties were present. In the deposition, Mr. Quinones testified that Happ had been at Ambrosino's mother's home on the evening of May 23 and had slept next to his stepson that evening in the living room of that home. Mr. Quinones testified that he last saw Happ on the evening of May 23 at no later than 11 p.m. and next saw Happ at "quarter to 6 in the morning." Mr. Quinones was not called by either party to testify at the trial.
During the trial, Happ was represented by lead counsel Pfister and co-counsel Nacke. At the rule 3.850 hearing, Mr. Pfister was not called as a witness. Mr. Nacke was called as a witness by the defendant and was questioned about why Mr. Quinones was not called during the trial. Q Okay. Can you tell the Court why Mr. Quinones was not called to testify at Mr. Happ's trial? A I don't have any recollection of why not. Q Okay? A I would say that if we brought him there and he maintained that testimony that he did in his deposition, that we would have called him. There must have been some reason, but what that is, I don't know, because I can't imagine with him saying that on a deposition, and we had called other witnesses, we would not be losing opening and closing arguments, so that wouldn't be a reason not to call him, after bringing him down from New York, I know there must have been a reason, but I cannot tell you that I remember why.
In the trial court's amended order of November 5, 2003, denying the rule 3.850 motion, the trial court held, "There is no deficient performance in failing to call witnesses who are neither credible, i.e. LaVenture, reliable, i.e. Partykas, or relevant, i.e. Quinones." The trial court erred in not providing its reasoning in respect to Mr. Quinones. 7
7 We are aware that defense counsel did not argue this issue until pages 52 and 53 of their 59-page written closing argument. There was no reference to Mrs. Peckham's testimony in the State's written closing argument.
However, based on our complete review of the record, we affirm the trial court's decision to deny the 3.850 claim of ineffective assistance of counsel because Happ has failed to establish that his trial counsel was deficient in failing to call Mr. Quinones as an alibi witness. We reach this conclusion for several reasons. First, trial counsel did present an alibi witness,Mrs. Peckham, whom the defense noticed as its alibi witness prior to trial. After the trial had already commenced, the State brought Mr. Quinones to Florida to testify, and he was deposed during the trial. Although his testimony could also have been presented as alibi testimony, it was in direct conflict with Mrs. Peckham's alibi testimony. Based on this conflict, it is clear that defense counsel could not call both Mrs. Peckham and Mr. Quinones.
Secondly, choosing to call Mr. Quinones rather than Mrs. Peckman would have created self-evident problems for the defense. In the State's case, Ambrosino testified that Happ had been at his mother's house on Thursday, May 22, not on Friday, May 23. Mr. Quinones' testimony would have been in conflict with Ambrosino's testimony as to the night on which Happ had spent the night with Ambrosino. There was no such conflict between the testimony of Mrs. Peckham and that of Mr. Ambrosino. Additionally, Mr. Quinones could not testify as to where Happ was during the crucial period of 11 p.m. to 5:45 a.m. Mr. Quinones testified that he did not see Happ during that period. As an additional matter, Mrs. Peckham was noticed as Happ's alibi witness, and Mr. Quinones was not.
Finally, in the postconviction hearing, Happ did not call the lead defense counsel. The defendant only called Mr. Nacke, who testified that there was a reason that he and Mr. Pfister did not call Mr. Quinones, but he could not recall what the reason was. Based on this record, postconviction defense counsel has presented no basis for us to conclude that the failure to call Mr. Quinones was ineffective. As to the parts of the claim that defense counsel failed to object when the State asked Ambrosino leading questions and that defense counsel failed to effectively cross-examine Ambrosino, we likewise conclude that the trial court's denial of the claim of ineffectiveness should be affirmed. Many of the questions which are the basis of this claim are not leading questions. 8 This Court has long held that a question is not necessarily leading simply because it calls for a "yes" or "no" answer. Fla. Motor Lines Corp. v. Barry, 158 Fla. 123, 27 So. 2d 753, 756 (Fla. 1946). Instead, a question is leading when it points out the desired answer. Id. In respect to those questions which are leading in the context of Ambrosino's direct examination, it was not demonstrated that counsel was ineffective so as to breach the Strickland standard or that there was Strickland prejudice. Nor do we find that counsel's cross-examination was in violation of the Strickland standard or that there was Strickland prejudice.
8 Earlier in this opinion, we set out the questions to Ambrosino which are the basis for this claim.
Failure to Investigate a Negroid Hair Sample
In his next claim, Happ contends that his counsel was ineffective for failing to investigate and sufficiently argue exculpatory evidence pertaining to a negroid pubic hair that was found underneath a pair of sweatpants which were tied tightly around the victim's neck. At the trial, defense counsel presented evidence about the unknown hair, and the State rebutted this evidence with two theories: the pubic hair had gotten on the victim's sweatpants at a public restroom or that it was transferred via use of a used sponge by an assistant at the medical examiner's office. During the evidentiary hearing on this postconviction claim, counsel for Happ questioned Mr. Nacke, Happ's trial co-counsel, about the failure to investigate this claim. Mr. Nacke explained that trial counsel did not have any African-American suspects in the case with whom they could make a comparison other than the man who worked for the medical examiner's office. The postconviction court denied this claim, stating that defense counsel was aware of this unknown hair and made an unsuccessful search to find an African-American other than the medical examiner's assistant with whom to make a comparison. The court concluded, "Everything in this record supports their diligence in investigating this issue."
We find no basis for reversing this ruling. Trial counsel made a strategic decision not to have the unknown hair compared to the individual at the medical examiner's office. If the hair remained unknown, the defense had a basis for arguing that there was an unknown assailant who was responsible for the crime. However, the defense would have been unable to present this possibility if the hair had been matched to the medical examiner's assistant. Happ is not entitled to relief on this claim.
Failure to Present Mitigation Evidence Regarding Happ's Drug Abuse History
Happ also alleges that his trial counsel was ineffective during the penalty phase for failing to present mitigation evidence concerning his drug abuse history. The trial court denied this claim after the evidentiary hearing as follows: Appellant called Alexander Martin who was qualified as an expert within the field of psychopharmacology and addictions and the general effects of drugs on the human brain. Happ self-reported significant poli-substance usage during Martin's first interview of March 21, 2000. This witness['s] testimony is totally unpersuasive because he does not make a diagnosis. There was no independent corroboration of Happ's self-reported cocaine usage. This witness did not ask Happ what drugs he was using May 23, 1986, the date of the murder. Nor did he ask him if he [Happ] was under the influence of cocaine and cocaine psychosis when he murdered Angela Crowly. (Citations omitted.) At the evidentiary hearing, trial counsel testified that he did not believe that a jury in Lake County would accept drug usage as a mitigating factor, particularly where it was not tied into the crime. Happ has failed to meet his burden or otherwise demonstrate that the postconviction court erred. We deny this claim.
Failure to Utilize Expert Witnesses
Happ contends that his trial counsel was ineffective in failing to call various experts and witnesses relating to whether Happ could have broken the window with his hand, 9 as well as a forensic pathologist to rebut the medical examiner's testimony. First, Happ alleges that counsel should have presented a forensic expert and an orthopedic surgeon to rebut the suggestion that Happ broke the car window with his fist. At the evidentiary hearing, Happ presented testimony from Paul Kish, a person who conducted tests on glass by breaking a similar type of car window with a hammer. The video showed that the person breaking the window was unsuccessful on his first attempt, and when he did succeed, the glass fell outside of the car, not into the car. However, the window was not from the same make or model car; the expert did not measure the force that it took to break the window; he broke the window while it was much colder and was snowing; and the expert was not sure if the window was in the same position as the victim's car window, despite the fact that he recognized this could impact the results of the test. Counsel for Happ also presented the testimony of Dr. Peter Lopez, who testified that hypothetically, it is unlikely that one could punch a car window with his hand to such an extent as to cause the window to shatter and that even if that person was successful in doing so, he would likely injure his hand, including injuries like superficial to deep lacerations, a significant contusion, or even a fractured metacarpal. Happ also contended that his counsel should have presented his employer, who could have testified that he did not observe any injuries to Happ after the crime. Finally, Happ alleged that his counsel was ineffective in failing to hire a forensic pathologist or vigorously cross-examine the medical examiner.
9 Ambrosino testified that when he saw Happ at approximately 9 a.m. on May 24, Happ's hand was swollen.
The postconviction court denied this portion of the claim as follows: At the evidentiary hearing, the Appellant presented testimony of three (3) experts; Kish, Lopez, and Petraco in an attempt to rebut the State's original trial evidence regarding the impact of outer glass breakage of an automobile, trace evidence, and the lack of Negroid hair fragments in the victim's automobile carpet sweepings. The entirety of their evidence was and is either irrelevant or inadmissible at trial. Mr. Kish's testimony and contribution to this Defendant's theory was to that he conducted a test on a similar type of automobile wherein a driver's side window was broken by means of a hammer. The test window was not measured by Mr. Kish nor was the amount of force necessary to break the glass. The aforementioned testing technique and methodology would not have survived a challenge at trial per Frye [v. United States, 293 F. 1013 (D.C. Cir. 1923)].
Dr. Lopez's testimony that a punch-type of injury by a human hand to an automobile driver's side window would likely result in a swollen hand would have corroborated Ambrosino's original trial testimony that Happ had a swollen right hand the day after the killing of Angela Crowly. Dr. Lopez never examined Happ's hand. (Citations and footnotes omitted.) We find that the postconviction court's conclusions are supported by the record. Moreover, during the evidentiary hearing on the postconviction claim, Mr. Nacke explained why he did not hire a glass expert during the trial.
My recollection was that we did discuss a glass expert, and after we evaluated what the State's expert could actually say and that was that this glass that they had uncovered as supposed evidence was in the same batch or the same type of glass as the victim's side window, I think it was the driver's side window. They would not say that this was a quote match; that it just came from the same batch or, you know, the same type, different cars, would have that same type of glass in it, because it's not unique to any one particular automobile. So, based on that, there was no proof that we could determine that this was, in fact, the actual glass from the victim's car. In other words, the nature of the evidence presented by the State was not such that defense counsel believed that he needed to rebut it. Counsel likewise gave a similar answer to why he chose not to present a shoe expert. The expert presented by the State could not state that Happ's shoe made the shoeprint or that it was even a strong match, just that the pattern on the bottom had the same pattern as one of Happ's shoes. Since there is competent, substantial evidence to support the postconviction court's factual findings and, further, since Happ has failed to show that the court erred relative to its legal conclusions, we deny this claim.
Denial of a Full and Fair Evidentiary Hearing
In the final claim to be addressed, Happ alleges that the postconviction court erred in denying his motion to release the shoes to an expert for further testing. Specifically, postconviction counsel informed the court that they expected their expert witness, Mr. Patraco, to testify that it was physically impossible for the shoeprint near the car to be made by Happ's shoe because it was a different size. Counsel wanted to present this evidence in order to establish that the original trial counsel was ineffective in failing to hire a shoeprint expert. The trial court denied this claim in an order dated November 15, 2002, stating that "defense ha[d] propounded no new theories under which the court felt compelled to release the evidence for testing."
As addressed above, trial counsel had previously asserted that they did not hire a shoeprint expert because they believed that the State's evidence on this issue insufficiently linked Happ to the crime and thus there was no real reason to rebut it. Specifically, during the trial, Ernest Hamm, a crime laboratory analyst with the Florida Department of Law Enforcement, testified relative to the shoeprint evidence. Hamm was given both the negative of the shoeprint left at the crime scene and the shoes seized from Happ in California so that Hamm could compare them. According to Hamm, the shoe he received had a considerable amount of wear in parts, so while it appeared to be the same make and design as the shoe that made the print at the crime scene, he could "only form the opinion [that Happ's shoes] could have made [the print at the crime scene] if there was a time element between the time that this suspect footwear track was made and the time" of the testing. 10 Based upon this record, we cannot conclude that the trial court erred in determining that counsel's decision was not unreasonable. Again, "there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. " Strickland, 466 U.S. at 689. Accordingly, we affirm the trial court's denial of relief on this issue.
10 It was this testimony that was the basis of our correction. See supra note 2; Happ v. Moore, 784 So. 2d 1091, 1098 (Fla. 2001).
For the reasons stated above, we affirm the lower court's denial of Happ's rule 3.850 motion for postconviction relief. It is so ordered. PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.