IN THE SUPREME COURT OF FLORIDA CASE NO.: SC BILLY LEON KEARSE APPELLANT VS. STATE OF FLORIDA APPELLEE

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO.: SC BILLY LEON KEARSE APPELLANT VS. STATE OF FLORIDA APPELLEE ON APPEAL FROM THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT, IN AND FOR ST. LUCIE COUNTY, FLORIDA, (CRIMINAL DIVISION) ANSWER BRIEF OF APPELLEE PAMELA JO BONDI Attorney General Tallahassee, FL Leslie T. Campbell Assistant Attorney General Florida Bar No.: N. Flagler Dr.; Ste. 900 West Palm Beach, FL Telephone (561) Facsimile (561) Counsel for Appellee

2 TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF CITATIONS... ii STATEMENT OF THE CASE... 1 STATEMENT OF THE FACTS... 1 SUMMARY OF THE ARGUMENT... 9 ARGUMENT ISSUE I THE SUMMARY DENIAL OF KEARSE S SECOND SUCCESSIVE POSTCONVICTION RELIEF MOTION WAS PROPER AS KEARSE FAILED TO PRESENT NEWLY DISCOVERED EVIDENCE TO OVERCOME THE DEFENSIVE BARS TO RELITIGATING A CLAIM OF INEFFECTIVE ASSISTANCE OR ALTERATELY TO UNDERMINE THIS COURT S PRIOR REJECTION OF THE INEFFECTIVENESS CLAIM (RESTATED) CONCLUSION...31 CERTIFICATE OF SERVICE CERTIFICATE OF FONT COMPLIANCE i

3 TABLE OF AUTHORITIES CASES Bond v. United States, 1 F.3d 631 (7th Cir. 1993) Byrd v. State, 14 So.3d 921 (Fla. 2009)... 14, 16, 27 Darling v. State, 45 So.3d 444 (Fla. 2010)... 9 Davis v. State, 26 So.3d 519 (Fla. 2009) Freeman v. State, 761 So.2d 1055 (Fla. 2000)... 9 Harvey v. Dugger, 656 So. 2d 1253 (Fla. 1995) Hough v. State, 773 So.2d 90 (5th DCA 2000)... 16, 17, 27 Jones v. State, 591 So.2d 911 (Fla.1991)... 11, 14, 15 Jones v. State, 678 So.2d 309 (Fla.1996)... 11, 15 Jones v. State, 709 So.2d 512 (Fla.1998)... passim Kearse v. Florida, 121 S.Ct (2000)... 3 Kearse v. State, 11 So.3d 355 (Fla. 2009)... 5 Kearse v. State, 662 So.2d 677 (Fla. 1995)... 2, 3, 21, 27 Kearse v. State, 770 So.2d 1119 (Fla. 2000)... 3 Kearse v. State, 969 So.2d 976 (Fla. 2007)... passim Lucas v. State, 841 So.2d 380 (Fla. 2003)... 9 Marek v. State, 14 So.2d 985 (Fla. 2009)... 10, 11, 15, 19 McLin v. State, 827 So.2d 948 (Fla. 2002)... 9 Medina v. State, 573 So. 2d 293 (Fla. 1990) Porter v. State, 653 So.2d 374 (Fla. 1995) Rivera v. Dugger, 629 So.2d 105 (Fla. 1993)... 15, 17, 27 Roach v. Martin, 757 F.2d 1463 (4th Cir. 1985)... 17, 27 ii

4 Rose v. State, 985 So.2d 500 (Fla. 2008)... 9 Scott v. Dugger, 604 So.2d 465 (Fla. 1992) State v. Coney, 845 So.2d 120 (Fla. 2003)... 9 Strickland v. Washington, 466 U.S. 668 (1984)... 16, 23 Tompkins v. State, 994 So.2d 1072 (Fla. 2008) Trepal v. State, 846 So.2d 405 (Fla. 2003)... 15, 16 United States v. Hoffman, 733 F.2d 596 (9th Cir. 1984)... 17, 27 United States v. Mouzin, 785 F.2d 682 (9th Cir. 1986) United States v. Sielaff, 542 F.2d 377 (7th Cir. 1976)... 17, 27 Ventura v. State, 2 So.3d 194 (Fla. 2009)... 9 Rules Fla. R. App. P (a)(2) Fla. R. Crim. P 3.851(d)... 4, 8, 9, 11 iii

5 PRELIMINARY STATEMENT Appellant, Billy Leon Kearse, Defendant below, will be referred to as Kearse and Appellee, State of Florida, will be referred to as State. Reference to the records will be: 1991 Direct Appeal - 1ROA 1996 Resentencing Record and Transcript 2ROA-R and 2ROA-T Initial Postconviction record - 1PCR Successive Postconviction Record 2PCR Second Successive Postconviction Record 3PCR Supplemental materials will be designated by the symbol S preceding the type of record referenced, Where appropriate, the volume and page number(s) will be included. Kearse s initial brief will be notated as IB followed by the appropriate volume and page number(s). STATEMENT OF THE CASE AND FACTS On February 5, 1991, Defendant, Billy Leon Kearse ( Kearse ), was indicted for the January 18, 1991 first-degree murder of police officer Danny Parrish and possession of a firearm by a convicted felon. The indictment was amended on May 8, 1991 to include a robbery with a firearm count. Trial commenced October 14, 1991 and a week later, the jury convicted Kearse of armed robbery and first-degree murder. Kearse v. 1

6 State, 662 So.2d 677, 680 (Fla. 1995) (1ROA 1865). A sentence of death was imposed following the jury s eleven to one death recommendation, (1ROA 2361, 2395). On direct appeal, this Court found the following facts: After [police officer Danny] Parrish observed Kearse driving in the wrong direction on a one-way street, he called in the vehicle license number and stopped the vehicle. Kearse was unable to produce a driver's license, and instead gave Parrish several alias names that did not match any driver's license history. Parrish then ordered Kearse to exit the car and put his hands on top of the car. While Parrish was attempting to handcuff Kearse, a scuffle ensued, Kearse grabbed Parrish's weapon and fired fourteen shots. Thirteen of the shots struck Parrish, nine in his body and four in his bullet-proof vest. A taxi driver in the vicinity heard the shots, saw a dark blue vehicle occupied by a black male and female drive away from the scene, and called for assistance on the police officer's radio. Emergency personnel transported Parrish to the hospital where he died from the gunshot injuries. The police issued a be-on-the-lookout (BOLO) for a black male driving a dark blue 1979 Monte Carlo. By checking the license plate that Officer Parrish had called in, the police determined that the car was registered to an address in Fort Pierce. Kearse was arrested at that address. After being informed of his rights and waiving them, Kearse confessed that he shot Parrish during a struggle that ensued after the traffic stop. Kearse v. State, 662 So. 2d 677, 680 (Fla. 1995). Kearse raised 25 issues addressed to the guilt and penalty phases. This Court 2

7 affirmed the convictions, but vacated the death sentence. Id., at The second penalty phase resulted in a unanimous death recommendation Kearse v. State, 770 So.2d 1119 (Fla. 2000) as discussed by this Court. The trial court found two aggravating circumstances: the murder was committed during a robbery; and the murder was committed to avoid arrest and hinder law enforcement and the victim was law enforcement officer engaged in performance of his official duties (merged into one factor). The court found age to be a statutory mitigating circumstance and gave it "some but not much weight." Of the forty possible nonstatutory mitigating factors urged by defense counsel, the court found the following to be established: Kearse exhibited acceptable behavior at trial; he had a difficult childhood and this resulted in psychological and emotional problems. The court determined that the mitigating circumstances, neither individually nor collectively, were "substantial or sufficient to outweigh the aggravating circumstances." Kearse, 770 So.2d at Kearse challenged the death sentence raising 22 issues. This Court affirmed the sentence, and on March 26, 2000, certiorari was denied by the United States Supreme Court. Kearse v. Florida, 121 S.Ct (2000). On October 3, 2001, Kearse filed an unverified, unsworn shell Motion to Vacate Judgments of Conviction and Sentence 3

8 with Special Request for Leave to Amend. Following litigation 1 on the propriety of filing a shell motion and public records requests, Kearse was given until March 1, 2004 to serve his final postconviction motion. He complied with that order raising nine claims, only the claims of ineffective assistance of counsel addressed to Robert Udell s representation are of import here, and the State responded. An evidentiary hearing was held April 18 through 21, 2005 and May 25, 2005 during which Robert Udell testified. Following the evidentiary hearing, relief was denied. Such ruling was affirmed on appeal 2 and the 1 On November 15, 2001, the State responded to the shell motion noting Kearse s motion did not comply with the dictates of Florida Rule of Criminal Procedure governing motions filed on or after October 1, The trial court, on November 26, 2001, dismissed the motion without prejudice. On March 5, 2002, Kearse sought reinstatement of his postconviction motion. The request was treated as a rehearing and dismissed as untimely, but he was given 60 days to comply with the oath requirement of rule 3.851(e)(1). Instead of complying, he appealed to this Court. However, before this Court could rule on the State s Motion to Dismiss, on May 21, 2002, Kearse filed another rule motion. On June 7, 2002, Kearse s postconviction motion was dismissed without prejudice for him to refile after resolving the appeal. On June 10, 2002, he dismissed his appeal and on June 13, 2002, this Court denied as moot the State s Motion to Dismiss. Subsequently, on June 21, 2002, Kearse resubmitted his shell motion. The State s motion seeking dismissal of the pleading as untimely and unauthorized under rule was denied and a response was filed. 2 As identified by this Court: Kearse raises the following four issues on appeal: (A) that trial counsel provided constitutionally ineffective assistance, (B) that the circuit court erred in denying Kearse's claim of newly discovered 4

9 issues raised in the habeas petition 3 were denied. Kearse v. State, 969 So.2d 976 (Fla. 2007). On December 26, 2007, Kearse filed a successive motion for postconviction relief and an amended motion on July 11, (2PCR ; v ; v ). He claimed that Florida s lethal injection protocol, effective August 1, 2007, violates the Eighth Amendment as there is a foreseeable risk of the infliction of pain which would amount to cruel and unusual punishment. The trial court summarily denied relief (2PCR ) and this Court affirmed. Kearse v. State, 11 So.3d 355 (Fla. 2009). The opinion was released on May 22, 2009, and no mandate issued. Kearse, on July 16, 2009, filed a federal habeas corpus petition on July 16, 2009 and on December 15, 2009 the State responded. Federal habeas relief has been denied on the ground the petition was untimely. Review is pending before the United States Court of Appeals for the Eleventh Circuit. evidence warranting a new penalty phase, (C) that the trial court erred in denying Kearse's public records requests, and (D) that the trial court erred in summarily denying several of his postconviction claims. Kearse v. State, 969 So.2d 976, 982 (Fla. 2007). 3 The Florida Supreme Court set out Kearse s state habeas claims as: (A) that appellate counsel was ineffective for failing to raise two meritorious claims, and (B) that both his death sentence and lethal injection are unconstitutional. Kearse v. State, 969 So.2d 976, 990 (Fla. 2007) 5

10 On October 29, 2010, Kearse filed his Second Successive Motion to Vacate Judgments of Conviction and Sentence, Including Sentence of Death, with Special Request for Leave to Amend (3PCR 4-70). In his second successive state postconviction motion, Kearse raised the sole claim of newly discovered evidence based on Robert Udell s disbarment and claimed it was impeachment evidence that may have changed the original postconviction denial of relief. On January 4, 2011, a Case Management Hearing was held, and on January 7, 2011 the trial court concluded that the 2009 disbarment was not newly discovered evidence and in the alternative the prior denial of postconviction relief did not rely solely on Robert Udell s veracity, thus, prejudice for an ineffective assistance of counsel claim was not shown. (3PCR 95-96). This appeal followed. 6

11 SUMMARY OF THE ARGUMENT Issue I Trial counsel Robert Udell s 2009 disbarment is not newly discovered evidence as defined by this Court, thus, summary denial was proper. Moreover, even if the disbarment were considered newly discovered evidence, it amounts to cumulative impeachment of a witness whose testimony did not form the basis for the denial of the ineffective assistance of counsel claim in the original postconviction relief litigation. This Court should find that Kearse has not produce newly discovered evidence and affirm the summary denial of the second successive motion for postconviction relief. 7

12 ARGUMENT ISSUE I THE SUMMARY DENIAL OF KEARSE S SECOND SUCCESSIVE POSTCONVICTION RELIEF MOTION WAS PROPER AS KEARSE FAILED TO PRESENT NEWLY DISCOVERED EVIDENCE TO OVERCOME THE DEFENSIVE BARS TO RELITIGATING A CLAIM OF INEFFECTIVE ASSISTANCE OR ALTERATELY TO UNDERMINE THIS COURT S PRIOR REJECTION OF THE INEFFECTIVENESS CLAIM (restated) Kearse asserts that he has newly discovered evidence in the form of Robert Udell s ( Udell ) October 29, 2009 disbarment which was sufficient to overcome the Rule 3.851(f)(5)(B) Fla. R. Crim. P. bar to successive postconviction motions and to obtain an evidentiary hearing. It is Kearse s claim that Udell s October 2009 disbarment is evidence which he could have used as additional impeachment of Udell when attempting to prove ineffective assistance of counsel during the April/May 2005 evidentiary hearing. The denial of the original postconviction relief motion was affirmed by this Court in August Kearse v. State, 969 So.2d 976 (Fla. 2007). Udell s 2009 disbarment is not newly discovered evidence as defined by this Court, thus, summary denial was proper. Moreover, even if the disbarment were considered newly discovered evidence, it amounts to cumulative impeachment of a witness whose testimony did not form the basis for the denial of the ineffective assistance of counsel claim in the original postconviction relief litigation. 8

13 This Court should find that Kearse has not produced newly discovered evidence and affirm the summary denial of the second successive motion for postconviction relief. The standard of review for the summary denial of a successive postconviction was set forth in Ventura v. State, 2 So.3d 194 (Fla. 2009), where this Court stated: Rule 3.851(f)(5)(B) permits the denial of a successive postconviction motion without an evidentiary hearing [i]f the motion, files, and records in the case conclusively show that the movant is entitled to no relief. A postconviction court's decision regarding whether to grant a rule evidentiary hearing depends upon the written materials before the court; thus, for all practical purposes, its ruling is tantamount to a pure question of law and is subject to de novo review. See, e.g., Rose v. State, 985 So.2d 500, 505 (Fla. 2008). In reviewing a trial court's summary denial of postconviction relief, we must accept the defendant's allegations as true to the extent that they are not conclusively refuted by the record. See Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000). The Court will uphold the summary denial of a newly-discoveredevidence claim if the motion is legally insufficient or its allegations are conclusively refuted by the record. See McLin v. State, 827 So.2d 948, 954 (Fla. 2002). Ventura, 2 So.3d at See also Darling v. State, 45 So.3d 444, 447 (Fla. 2010); State v. Coney, 845 So.2d 120, (Fla. 2003); Lucas v. State, 841 So.2d 380, 388 (Fla. 2003). As he did below, Kearse asserts that Udell s October 2009 disbarment provides newly discovered impeachment evidence to 9

14 undermine Udell s credibility at the 2005 evidentiary hearing respecting his testimony of actions taken in representing Kearse at the 1991 guilt and 1997 penalty phases. This in turn, Kearse asserts, impacts the trial court s denial of the original postconviction motion and this Court s affirmance where it relied upon Udell s testimony. Kearse asserts here he should have received an evidentiary hearing to establish that Udell was disbarred and that he was not truthful during 2005 evidentiary hearing. After reviewing the pleadings and hearing from the parties, the trial court relied upon Marek v. State, 14 So.2d 985 (Fla. 2009) to determine that a 2009 disbarment was not newly discovered evidence for the 1991 trial or 1997 sentencing. The trial court reasoned:... The court concludes that an evidentiary hearing is not required on the second successive motion because Kearse has failed to meet the two-prong standard for proving newly discovered evidence. To obtain a new trial based on newly discovered evidence, a defendant must meet two requirements. First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, the newly discovered evidence must be of such nature that it would probably 10

15 produce an acquittal on retrial. See Jones v. State, 709 So.2d 512, 521 (Fla.1998) ( Jones II ). Newly discovered evidence satisfies the second prong of the Jones II test if it weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability. Jones II, 709 So.2d at 526 (quoting Jones v. State, 678 So.2d 309, 315 (Fla.1996)). If the defendant is seeking to vacate a sentence, the second prong requires that the newly discovered evidence would probably yield a less severe sentence. See Jones v. State, 591 So.2d 911, 915 (Fla.1991) (Jones I). Marek v. State, 14 So.2d 985, 990 (Fla. 2009) The court finds that Udell s 2009 disbarment does not constitute newly discovered evidence because it did not exist at the time of the 1991 trial or the 1997 resentencing, and there is no showing that Udell s admission to falsifying fee affidavits in two unrelated cases between 2005 and 2008 would have undermined Kearse s culpability or resulted in a less severe sentence. Consequently, the successive motion is time-barred more than one year after the judgment and sentence became final absent a bonafide exception to the time limitation. Fla. R. Crim. P 3.851(d). (3PCR 95-96). Additionally, the court made the alternate finding that: And even if the disbarment qualified as newly discovered evidence, the postconviction court s 2005 order was based on the record, and did not rest solely on the veracity of Udell s evidentiary hearing testimony. (See order attached as exhibit 11

16 A - pages for police misconduct evidence claim and pages for mental health evidence claim.) Thus, Kearse has failed to demonstrate prejudice. Lastly, to the extent that Kearse seeks review of an appellate decision, this court does not have the authority to review the decision of the Florida Supreme Court for error. (3PCR 96). These rulings comport with the law and should be affirmed. Kearse asserts that the trial court conflated the standard for granting an evidentiary hearing and that for granting a new trial based on newly discovered evidence. (IB at 11). Such is not the case. Kearse presented a successive motion for postconviction relief. He is not entitled to another review absent a showing of newly discovered evidence or the announcement of a new constitutional right by this Court or the United States Supreme Court and held to be retroactive. Kearse chose to assert newly discovered evidence as a method to overcome the time bar. The trial court correctly evaluated whether the new evidence was newly discovered as that term of art is defined under Florida law. Kearse is the sole perpetrator of the instant crime; he has no equally culpable codefendant, thus, he is unable to rely upon the one exception to the newly discovered evidence standard where the evidence was not in existence at the time of trial/sentencing provided in 12

17 Scott v. Dugger, 604 So.2d 465 (Fla. 1992). See Porter v. State, 653 So.2d 374, (Fla. 1995) (refusing to extend the Scott limited exception to other claims of new evidence). Kearse has failed to cite a case where this Court has found that evidence, other than a life sentence for a equally culpable codefendant, which did not exist at the time of trial, or in this case, even by the time of the evidentiary hearing, was deemed to be newly discovered for purposes of obtaining a second evidentiary hearing on counsel s effective assistance. Likewise, Kearse s assertion that the trial court s Marek/Jones newly discovered evidence analysis is flawed (IB at 12-13), is without merit. Kearse initially states that he is not seeking a new trial based on newly discovered evidence, but is seeking a new penalty phase because counsel was ineffective. Kearse does not explain how his request requires a different analysis than would be employed for any successive postconviction motion where newly discovered evidence is alleged. Contrary to Kearse s argument, the trial court applied the correct standard for reviewing successive postconviction motions where newly discovered evidence was alleged and Kearse was unable to meet that standard. In Kearse v. State, 969 So.2d 976 (Fla. 2007), this Court reiterated the two-prong standard announced in Jones v. State, 709 So.2d 512 (Fla. 1998) for establishing newly discovered 13

18 evidence. There the Court held that the defendant must prove that: (1) The evidence must have existed but have been unknown by the trial court, the party, or counsel at the time of trial, and must not have been discoverable through the use of due diligence, and (2) the newly discovered evidence must be of such a nature that it would probably produce an acquittal on retrial. Jones, 709 So.2d at 521. Kearse, 969 So.2d at 987 (emphasis supplied). See Davis v. State, 26 So.3d 519, 526 (Fla. 2009); Marek, 14 So.2d at 990. Moreover, as this Court opined in Tompkins v. State, 994 So.2d 1072 (Fla. 2008): In determining whether the evidence compels a new trial, the trial court must consider all newly discovered evidence which would be admissible, and must evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial. Id. at 916. This determination includes whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence. The trial court should also determine whether this evidence is cumulative to other evidence in the case. The trial court should further consider the materiality and relevance of the evidence and any inconsistencies in the newly discovered evidence. [Jones, 709 So.2d at 521] Tompkins, 994 So.2d at (emphasis supplied). In Kearse s original postconviction case, he raised a newly discovered evidence claim based on facts which came into existence after his sentencing. This Court determined that the 14

19 evidence did not meet the first prong of the definition of newly discovered as the impeachment evidence, the witness s actions in the federal criminal case and allegations regarding his conduct postdated Kearse's sentencing. Thus, the evidence did not exist at the time of the resentencing, and Kearse fails to meet the first prong of the test. Kearse, 969 So.2d at 987 (emphasis supplied). See Trepal v. State, 846 So.2d 405, 424 (Fla. 2003) (rejecting newly discovered evidence claim because claimed evidence did not exist at the time of trial). Newly discovered evidence satisfies the second prong of the Jones [v. State, 709 So.2d 512, 521 (Fla.1998)] test if it weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability. Jones II, 709 So.2d at 526 (quoting Jones v. State, 678 So.2d 309, 315 (Fla. 1996)). If the defendant is seeking to vacate a sentence, the second prong requires that the newly discovered evidence would probably yield a less severe sentence. See Jones v. State, 591 So.2d 911, 915 (Fla. 1991) (Jones I). Marek, 14 So.3d at 990. Clearly, the 2009 disbarment did not exist at the time of the 1991 trial/1997 resentencing, thus, by definition is not newly discovered. See Rivera v. Dugger, 629 So.2d 105, (Fla. 1993) (rejecting request for a new evidentiary hearing following the arrest and eventual disbarment of judge who had presided over the original postconviction hearing even though postconviction appeal was 15

20 pending); Hough v. State, 773 So.2d 90, 91 (5 th DCA 2000) (agreeing appellate counsel s disbarred in 2000 does not constitute newly discovered evidence regarding defendant s appeal) Also, newly discovered evidence must be admissible in the new proceedings. Trepal, 846 So.2d at 424; Jones, 709 So.2d at 521. Here, Kearse has failed to show the disbarment order would be admissible as impeachment as he has not shown that even if the matter came to an evidentiary hearing, that Udell would not answer truthfully about his billing records. Likewise, Kearse failed to show that Udell s billing records would be relevant to issues in either the guilt or penalty phases. Kearse did not show that the evidence, even if considered newly discovered is admissible. Similarly, Udell s was disbarred, not only after trial/sentencing, but years after the postconviction evidentiary hearing, is irrelevant to a claim of ineffective assistance of counsel. The disbarment standing alone would not entitle Kearse to postconviction relief absent a finding of deficiency and prejudice under Strickland v. Washington, 466 U.S. 668 (1984). See Byrd v. State, 14 So.3d 921, 927 (Fla. 2009) (affirming denial of postconviction relief based in part on fact counsel's disbarment some twenty years after the trial in this case does not call into question any of the prior postconviction 16

21 proceedings on Byrd's ineffective assistance of counsel claims. ); Rivera, 629 So.2d at (rejecting request for a new evidentiary hearing following the arrest and eventual disbarment of postconviction judge); Hough v. State, 773 So.2d 90, 91 (5 th DCA 2000) (agreeing counsel s disbarment does not constitute newly discovered evidence regarding prior appeal); Bond v. United States, 1 F.3d 631, 636 (7th Cir. 1993) (stating [c]ourts consistently have declined to adopt a per se rule that ineffective assistance always results when a disciplinary action is pending against the defendant. ); United States v. Mouzin, 785 F.2d 682, 698 (9th Cir. 1986) (noting [n]either suspension nor disbarment invites a per se rule that continued representation in an ongoing trial is constitutionally ineffective. ); Roach v. Martin, 757 F.2d 1463 (4th Cir. 1985) (finding prejudice may not be presumed where lead counsel was under investigation for disbarment at time of petitioner's trial); United States v. Hoffman, 733 F.2d 596 (9th Cir. 1984) (concluding defendant's representation by attorney who was suspended from his home state bar during federal trial was not a per se denial of Sixth Amendment right); United States v. Sielaff, 542 F.2d 377, 380 (7th Cir. 1976) (rejecting claim that counsel was incompetent because he was later disbarred for accepting fees without providing services for other clients as the subsequent disbarment of the counsel for reasons having 17

22 nothing to do with the instant case was irrelevant to his performance at defendant's trial);;. However, in this case, as will be explained below, Kearse is unable to meet the Strickland standard given this Court s prior decision on the ineffectiveness claims. Even assuming the disbarment is deemed newly discovered, Udell is not entitled to re-litigate his claims of ineffective assistance of counsel. The basis for Udell s disbarment was errors in his billing and requests for attorney fees, however, the veracity of Udell s billing was challenged in the original postconviction evidentiary hearing as it relates to billing for work done in 1996/1997, including noting a deposition was taken of Dr. Martell. In its order denying postconviction relief in 2005, the trial court determined: As to Kearse s specific claim of ineffectiveness, it is apparent from the record that Udell knew or anticipated the substance of Dr. Martell s testimony despite not having deposed Dr. Martell. Udell cannot be responsible for the ruling just weeks before commencement of the second penalty phase compelling the State s mental health examination of Kearse. The ruling resulted in the late disclosure of the State s mental health expert, Dr. Martell. The record reflects that Udell requested, but was denied a continuance to depose Dr. Martell. And although there is no evidence that Udell conducted a deposition of Dr. Martell, at the evidentiary hearing Udell stated that he already knew what Dr. Martell was going to say regarding which mitigating factors didn t exist. (PCR ). Udell was unable to recall the specific circumstances under which he obtained information on the substance of Dr. 18

23 Martell s testimony but concluded that he most likely acquired details of Dr. Martell s report through discussions with the prosecutors and through Udell s familiarity with the work of Dr. Martell s partner, Dr. Deitz. In support of Udell s explanation, it is evident to this Court from Dr. Petrilla s and Dr. Lipman s (defense mental health experts) testimony during the second penalty phase that Udell anticipated that Kearse s personality profile would be at issue, particularly with respect to any indication of malingering. Also, it is apparent that Udell knew the childhood diagnosis of conduct disorder would be problematic where Udell determined it would be an effective strategy to present the testimony of teachers and counselors to provide alternative explanations for Kearse s childhood conduct. Thus, this Court finds Udell s strategy to proceed without deposing Dr. Martell reasonable under the circumstances. (1PCR 37 at 5733; 3PCR 128) (emphasis supplied). The argument raised below and again here establishes that Kearse is seeking nothing more than to re-litigate an issue and re-challenge Udell s veracity where the ultimate conclusion did not rest solely upon Udell s veracity. Although the disbarment does not meet the definition of newly discovered evidence under Marek, 14 So.3d at 990; Kearse, 969 So.2d at 987, this Court s affirmance of the denial of the ineffectiveness claim in the original postconviction appeal highlights not only the fact that Udell s disbarment is not newly discovered evidence because it has no bearing on Kearse s guilt or sentencing, but also establishes that Udell s veracity was not the basis for the rejection of the Strickland claims. As such, a new evidentiary hearing was denied properly as Kearse is unable to show that 19

24 Udell s 2009 disbarment would undermine Kearse s culpability or sentence. Similarly, the disbarment would not alter the postconviction factual findings or Strickland analysis. The trial court rejected the alleged billing notations/inaccuracies, finding that Udell had not deposed Dr. Martell, but nonetheless, determined that based on the trial record, neither deficiency nor prejudice were shown under Strickland. Kearse merely wants to re-litigate Strickland issues already decided against him on record evidence, not Udell s veracity, and not undercut in the least by Udell s recent disbarment. Postconviction motions are not to be used to re-litigate issues decided previously. Cf. Medina v. State, 573 So. 2d 293, 295 (Fla. 1990) (holding [a]llegations of ineffective assistance cannot be used to circumvent the rule that postconviction proceedings cannot serve as a second appeal ); Harvey v. Dugger, 656 So. 2d 1253, 1256 (Fla. 1995). On appeal from the denial of the original postconviction relief motion, Kearse argued that Udell was constitutionally ineffective for (1) failing vigorously to advocate for him, (2) failing adequately to prepare the defense experts, (3) failing to investigate and prepare for the State's mental health expert, (4) failing to present victim misconduct evidence, and (5) 20

25 failing to prepare lay witnesses to testify. 4 Kearse v. State, 969 So.2d 976, 983 (Fla. 2007). This Court did not make any findings that rested entirely upon Udell s testimony as is 4 The claim Udell failed to prepare lay witnesses was rejected based on pleading deficiencies and evidence unrelated to Udell. Kearse's claim that counsel failed to prepare him is based on an exchange at resentencing in which defense counsel asked Kearse where he had been incarcerated before his arrest for the murder. Kearse answered that he had been on death row at Raiford, which is where he was incarcerated after the trial. This answer was unresponsive to the question. Accordingly, Kearse fails to demonstrate that counsel was deficient. Kearse's claim regarding his relatives was not raised in his postconviction motion and thus it is unpreserved for appeal. Further, in his brief the claim is conclusory, meeting neither prong of Strickland. Kearse's claim that counsel was ineffective for allowing Ms. Baker to testify regarding his juvenile record is also conclusory and meritless. He claims without explanation that the evidence was not admissible. As the testimony at the postconviction hearing made clear, the evidence was admissible and defense counsel chose to admit it through Ms. Baker who could present it in context with Kearse's mental health and social services history. Accordingly, the trial court was correct to deny relief on all of these claims.fn5 FN5. Kearse also argues that defense counsel was ineffective for failing to cross-examine two witnesses at the motion to suppress hearing.... This is not the argument Kearse made in his postconviction motion, and it is thus not preserved. Second, we held in Kearse I that exigent circumstances provided probable cause for the warrantless arrest and that physical evidence seized at the scene was not subject to suppression. Kearse I, 662 So.2d at 684. Kearse, 969 So.2d at

26 evidenced from the following assessment of this Court s opinion in Kearse, 969 So.2d at Instead, it was to the entire record, i.e., the actions taken by Udell as evidenced by motions filed and hearings/testimony transcribed during the initial trial and re-sentencing, and the testimony of lay and expert witnesses presented at the evidentiary hearing. With respect to the rejection of the claim that there was no vigorous advocacy, this Court noted that Kearse took the challenged comments by Udell out of context, and when viewed in context the statements and arguments constitute[d] defense counsel s candid representations to the court. Kearse, 969 So.2d at 983. Also, this Court concluded Udell was an experienced death penalty attorney who had represented Kearse at the original guilt and penalty phase and at the resentencing. Id. From the record, this Court concluded that Udell had offered expert mental health testimony in the form of a number of professionals who had worked with Kearse when he was in a school for the emotionally disturbed children, and family members. Id. While this Court stated that Udell had reported that he understood the issues and was prepared for trial, such announcement was based on the objective evidence from the record given the witnesses presented and evidence presented at trial. Id. As such, this Court found that neither deficiency nor 22

27 prejudice was shown, and clearly, that determination was not based solely on Udell s testimony. In assessing the claim Udell did not prepare the defense experts, this Court relied upon the record, including Dr. Lipman s own trial testimony that Udell inundated him with information and Dr. Lipman s evidentiary hearing testimony that he would not change his testimony even with the added postconviction evidence and that when he needed to consult another expert he did so unilaterally. Kearse, 969 Sio.2d at 983. As such, the rejection of this claim was not based on Udell s testimony. Any alleged impeachment with the 2009 disbarment would not undermine that conclusion. In a related issue challenging Udell s preparation and utilization of Dr. Lipman, this Court determined that: The resentencing record demonstrates, however, that as a neuropharmacologist, in making his diagnosis Dr. Lipman always relies on medical doctors and psychologists. We agree with the circuit court that Dr. Lipman was not barred from testifying about his reliance on other experts. Thus, Kearse fails to meet either requirement of Strickland. Id. at 984. Again, the factual findings were based on the objective record, not Udell s evidentiary hearing account. Such establishes the futility of re-litigating the ineffectiveness issues with a disbarment that took place some four years after the collateral litigation and more than ten 23

28 years after the original billing records were submitted to the Court for payment. The trial court s summary denial of postonviction relief was proper and should be affirmed. Addressing the challenge to Udell s actions in preparing for State expert, Dr. Martell s testimony, this Court summarized the mitigation evidence Udell presented at the original and second penalty phases as well as the testimony of Dr. Martell. Kearse, 969 So.2d at This Court rejected the challenge to Udell s failure to depose Dr. Martell because the trial record shows that Udell correctly anticipated Martell's testimony. Kearse thus has not demonstrated anything material that defense counsel did not anticipate or could have done differently had he deposed Dr. Martell. Id. at 986. In a related claim, this Court relied upon the 1996/1997 penalty phase record in rejecting the Strickland claim that Udell should have presented more mitigation evidence. The rationale in rejecting the ineffectiveness claim was not based on Udell s evidentiary hearing testimony, but on the trial record. This Court found Kearse s: claim simply ignores the extensive mental health mitigation outlined above that was presented at resentencing through a psychologist, a neuropharmacologist, a licensed mental health counselor, several educators, and family members. Further, as the trial court pointed out, and Kearse does not dispute, Kearse's experts at the postconviction hearing largely testified in 24

29 conformity with the testimony defense counsel presented at the resentencing. We can think of no other case-and Kearse has not cited one-in which defense counsel has presented so much expert testimony and other mitigation, but has been found ineffective for failure to present mitigation. Accordingly, we hold that Kearse's claim fails to meet Strickland's requirements. Kearse, 969 So.2d at 986 (footnote omitted). In rejecting Kearse s original postconviction claim that a different strategy should have been followed, i.e., vilification of Officer Parrish, this Court agreed with the assessment that vilifying the victim would backfire: especially in light of the facts, such as Kearse's firing thirteen bullets into the officer as the officer pled for his life and Kearse's passenger's testimony that at all times Officer Parrish was friendly and polite. Defense counsel admitted that he did not request the officer's personnel file. However, the evidence at the postconviction hearing showed that any evidence in the file supporting the vilification mitigation could have been countered at trial by other evidence in it of Officer Parrish's good reports and commendations. We find that counsel's decision not to present this mitigation strategy was reasonable. Further, Kearse has not demonstrated prejudice from counsel's failure to obtain the personnel record. Kearse, 969 So.2d at 986. To the extent that Udell s testimony is relied upon by this Court for this challenge to Udell s actions, it is supported by the trial record, trial evidence, 25

30 and evidentiary hearing testimony/evidence independent of Udell. Kearse, 969 So.2d at 986. The claim Udell failed to prepare lay witnesses was assessed and rejected based on pleading deficiencies and evidence unrelated to Udell. Kearse's claim that counsel failed to prepare him is based on an exchange at resentencing in which defense counsel asked Kearse where he had been incarcerated before his arrest for the murder. Kearse answered that he had been on death row at Raiford, which is where he was incarcerated after the trial. This answer was unresponsive to the question. Accordingly, Kearse fails to demonstrate that counsel was deficient. Kearse's claim regarding his relatives was not raised in his postconviction motion and thus it is unpreserved for appeal. Further, in his brief the claim is conclusory, meeting neither prong of Strickland. Kearse's claim that counsel was ineffective for allowing Ms. Baker to testify regarding his juvenile record is also conclusory and meritless. He claims without explanation that the evidence was not admissible. As the testimony at the postconviction hearing made clear, the evidence was admissible and defense counsel chose to admit it through Ms. Baker who could present it in context with Kearse's mental health and social services history. Accordingly, the trial court was correct to deny relief on all of these claims.fn5 FN5. Kearse also argues that defense counsel was ineffective for failing to cross-examine two witnesses at the motion to suppress hearing.... This is not the argument Kearse made in his postconviction motion, and it is thus not preserved. Second, we 26

31 Kearse, 969 So.2d at 987. held in Kearse I that exigent circumstances provided probable cause for the warrantless arrest and that physical evidence seized at the scene was not subject to suppression. Kearse I, 662 So.2d at 684. From the foregoing, it is clear that both the trial court hearing the original postconviction motion and this Court on postconviction appeal determined that the objective evidence refuted all Strickland claims of deficiency and that no prejudice resulted from Udell s decisions. Kearse s instant successive motion, where he wishes to have another opportunity to impeach Udell and have the Strickland claims reviewed anew, is nothing more than an attempt to re-litigate an issue fully considered and resolved against him on evidence unrelated to Udell s testimony, using evidence not in existence at the time of trial, resentencing, or even first evidentiary hearing, and not impacted in the least by Udell s 2009 disbarment. The 2009 disbarment has no bearing on Kearse s guilt or sentence and even if considered newly discovered for the 2005 postconviction evidentiary hearing, has no impact on the rejection of the Strickland claims. See Byrd, 14 So.3d at 927; Rivera, 629 So.2d at ; Hough, 773 So.2d at 91; Roach, 757 F.2d at 1463; Hoffman, 733 F.2d at 596; Sielaff, 542 F.2d at 380. This Court 27

32 should affirm the summary denial of Kearse s second successive postconviction motion. 28

33 CONCLUSION Based upon the foregoing, the State requests respectfully 7this Court affirm the denial of postconviction relief. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. mail to: Paul Kalil, Esq., Office of the Capital Collateral Regional Counsel - South, 101 N.E. 3 rd Avenue, Suite 400, Fort Lauderdale, FL this 24day of June, CERTIFICATE OF FONT COMPLIANCE I HEREBY CERTIFY that the size and style of type used in this brief is 12-point Courier New, in compliance with Fla. R. App. P (a)(2). Respectfully submitted, PAMELA JO BONDI ATTORNEY GENERAL LESLIE T. CAMPBELL Assistant Attorney General Florida Bar No N. Flagler Dr.; Ste. 900 Telephone: (561) Facsimile: (561) COUNSEL FOR APPELLEE 29