IN THE SUPREME COURT OF FLORIDA CASE NO. SC MARBEL MENDOZA, Appellant, STATE OF FLORIDA, Appellee.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC MARBEL MENDOZA, Appellant, v. STATE OF FLORIDA, Appellee. ON APPEAL FROM THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, STATE OF FLORIDA INITIAL BRIEF OF APPELLANT DAN D. HALLENBERG Assistant CCRC Florida Bar No NEAL A. DUPREE CAPITAL COLLATERAL REGIONAL COUNSEL-SOUTH 101 N.E. 3rd Avenue. Suite 400 Fort Lauderdale, FL (954) ; FAX (954) COUNSEL FOR APPELLANT

2 PRELIMINARY STATEMENT This proceeding involves the appeal of the circuit court's summary denial of Mr. Mendoza's motion for post-conviction relief. The motion was brought pursuant to Fla. R. Crim. P The following symbols will be used to designate references to the record in this appeal: "R" -- record on direct appeal to this Court; "TRT" -- transcript of trial proceedings contained in record on direct appeal to this Court; "PCR" -- record on instant appeal to this Court; "Supp. PCR" -- supplemental record on instant appeal to this Court. i

3 REQUEST FOR ORAL ARGUMENT Mr. Mendoza has been sentenced to death. The resolution of the issues involved in this action will therefore determine whether he lives or dies. This Court has not hesitated to allow oral argument in other capital cases in a similar procedural posture. A full opportunity to air the issues through oral argument would be more than appropriate in this case, given the seriousness of the claims involved and the stakes at issue. Mr. Mendoza, through counsel, accordingly urges that the Court permit oral argument. ii

4 TABLE OF CONTENTS Page: PRELIMINARY STATEMENT... i REQUEST FOR ORAL ARGUMENT... ii TABLE OF CONTENTS...iii TABLE OF AUTHORITIES... vii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 7 ARGUMENT POINT I THE TRIAL COURT ERRED BY SUMMARILY DENYING MR. MENDOZA'S CLAIMS; MR. MENDOZA IS ENTITLED TO AN EVIDENTIARY HEARING...9 A. Erroneous Summary Denial...9 B. Ineffectiveness At Guilt-Innocence Phase Mr. Mendoza Did Not Commit or Attempt to Commit a Robbery or Burglary Mr. Mendoza Did Not Shoot The Victim Closing Argument Counsel's Failure To Attack Co-Defendants' Credibility Conducted No Investigation and Lacked Experience Voluntary Intoxication C. Ineffectiveness At Penalty Phase Denial of Right To Competent Mental Health Assistance and Counsel's Failure To Present Substantial Mitigation iii

5 2. Failure To Establish Innocence of the Death Penalty POINT II ERROR TO DENY MOTION TO DISQUALIFY POINT III MR. MENDOZA IMPROPERLY DENIED ACCESS TO PUBLIC RECORDS POINT IV TRIAL COUNSEL WAS INEFFECTIVE DURING VOIR DIRE POINT V JURY VENIRE WAS NOT SWORN PRIOR TO VOIR DIRE POINT VI PREJUDICIAL, INFLAMMATORY AND IMPROPER STATEMENTS BY THE PROSECUTOR AND THE TRIAL COURT POINT VII INCORRECT AND IMPROPER PENALTY PHASE JURY INSTRUCTIONS SHIFTED THE BURDEN TO MR. MENDOZA TO PROVE THAT DEATH WAS INAPPROPRIATE. 65 POINT VIII TRIAL COURT'S ERRONEOUS INSTRUCTION TO THE JURY ON THE STANDARD FOR JUDGING EXPERT TESTIMONY POINT IX THE JURY RECEIVED INADEQUATE GUIDANCE CONCERNING THE AGGRAVATING CIRCUMSTANCES TO BE CONSIDERED POINT X STATE'S RELIANCE ON NON-STATUTORY AGGRAVATING FACTORS iv

6 POINT XI THE CALDWELL CLAIM POINT XII THE RULES PROHIBITING MR. MENDOZA'S LAWYERS FROM INTERVIEWING JURORS ARE UNCONSTITUTIONAL POINT XIII STATE ATTORNEY OVERBROADLY AND VAGUELY ARGUED AGGRAVATING CIRCUMSTANCES AND TRIAL COUNSEL CONCEDED AGGRAVATING CIRCUMSTANCES WITHOUT MR. MENDOZA'S CONSENT POINT XIV EXECUTION BY ELECTROCUTION AND/OR LETHAL INJECTION IS CRUEL AND/OR UNUSUAL AND INHUMAN AND DEGRADING TREATMENT AND/OR PUNISHMENT 71 POINT XV FLORIDA'S CAPITAL SENTENCING STATUTE IS UNCONSTITUTIONAL.. 71 POINT XVI ABSENCE OF CHANGE OF VENUE DENIED MR. MENDOZA A FAIR AND IMPARTIAL JURY POINT XVII UNCONSTITUTIONAL AUTOMATIC AGGRAVATING CIRCUMSTANCES POINT XVIII IMPROPER CONDUCT OF THE TRIAL COURT WHICH CREATED A BIAS IN FAVOR OF THE STATE POINT XIX MR. MENDOZA IS INSANE TO BE EXECUTED POINT XX v

7 PROCEDURAL AND SUBSTANTIVE ERRORS WHICH AS A WHOLE DEPRIVED MR. MENDOZA OF A FAIR TRIAL CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE vi

8 TABLE OF AUTHORITIES Page: Ake v. Oklahoma 105 S. Ct (1985) Armstrong v. Harris 773 So. 2d 7 (Fla. 2000) Banda v. State 536 So. 2d 221 (Fla. 1988) Bordenkircher v. Hayes 434 U.S. 357 (1978) Brady v. Maryland 373 U.S. 83 (1963) Brooks v. State 25 Fla. L. Weekly S417, 2000 WL , *18 (Fla. May 25, 2000) Brown v. Dewell 131 Fla. 566, 179 So. 695 (1938) Brown v. State 25 Fla. L. Weekly S792, 2000 WL (Fla. Oct. 5, 2000) Buenoano v. State 708 So. 2d 941 (Fla. 1998) Caldwell v. Mississippi 472 U.S. 320 (1985) Carey v. Piphus 425 U.S. 247 (1978) Chastine v. Broone 629 So. 2d 293 (Fla. 4th DCA 1993)...52,56 Craig v. State 769 So. 2d 1087 (Fla. 2d DCA 2000) De La Rosa v. Zequeira 659 So. 2d 239 (Fla. 1995) vii

9 Derden v. McNeel 938 F.2d 605 (5th Cir. 1991) Dickenson v. Parks 104 Fla. 577, 140 So. 459 (1932) Easter v. Endell 37 F. 3d 1343 (8th Cir. 1994) Engberg v. Meyer 820 F.2d 70 (Wyo. 1991) Espinosa v. Florida 505 U.S (1992) Ford v. Wainwright 477 U.S. 399 (1986) Freeman v. State 761 So. 2d 1055 (Fla. 2000) Gaskin v. State 737 So. 2d 509 (Fla. 1999)... 10,11,37 Goines v. State 708 So. 2d 656 (Fla. 4th DCA 1998) Gonzalez v. Goldstein 633 So. 2d 1183 (Fla. 4th DCA 1994) Hamilton v. State 547 So. 2d 630 (Fla. 1989) Hayslip v. Douglas 400 So. 2d 553 (Fla. 4th DCA 1981)... 40,53 Heath v. Jones 941 F.2d 1126 (11th Cir. 1991) Hildwin v. Dugger 654 So. 2d 107 (Fla. 1995) Holland v. State 503 So. 2d 1250 (Fla. 1987) Jennings v. State viii

10 782 So. 2d 853 (Fla. 2001) Lineham v. State 476 So. 2d 1262 (Fla. 1985) Livingston v. State 441 So. 2d 1083 (Fla. 1983)...49,50,52,55 MacKenzie v. Super Kids Bargain Store 565 So. 2d 1332 (Fla. 1990) Marshall v. Jerrico, Inc. 446 U.S. 238 (1980) Maynard v. Cartwright 108 S. Ct (1988) McCaskill v. State 344 So. 2d 1276 (Fla. 1977) Mendoza v. Florida 119 S.Ct. 101 (1998)...6 Mendoza v. State 700 So. 2d 670 (Fla. 1997)...4,5,6,15,34,45,64,67,70 In re Murchison 349 U.S. 133 (1955) Nowitzke v. State 572 So. 2d 1346 (Fla. 1990) Pait v. State 112 So. 2d 380 (Fla. 1959) Peede v. State 748 So. 2d 253 (Fla. 1999) Penry v. Lynaugh 108 S.Ct (1989) Ray v. State 755 So. 2d 604 (Fla. 2000) Richardson v. State ix

11 723 So. 2d 910 (Fla. 1st DCA 1999) Richmond v. Lewis 506 U.S. 40 (1992) Rivera v. State 717 So. 2d 477 (Fla. 1998) Roberts v. State 568 So. 2d 1255 (Fla. 1990) Sinclair v. State 657 So. 2d 1138 (Fla. 1995) Sochor v. State 619 So. 2d 285 (Fla. 1993) Spaziano v. Singletary 36 F.3d 1028 (11th Cir. 1994)...26,55 State ex rel. Brown v. Dewell 131 Fla. 566, 179 So. 695 (1938) State ex rel. Davis v. Parks 141 Fla. 516, 194 So. 613 (1939) State ex rel. Mickle v. Rowe 100 Fla. 1382, 131 So. 331 (1930)...51,58 State v. Dixon 283 So. 2d 1 (Fla. 1973) cert. denied. 416 U.S. 943 (1974) State v. Gunsby 670 So. 2d 920 (Fla. 1996) State v. Kokal 562 So. 2d 324 (Fla. 1991) State v. Middlebrooks 840 S.W.2d. 317 (Tenn. 1992) Stewart v. Martinez-Villareal 118 S.Ct (1998) x

12 Stickler v. Greene 527 U.S. 263 (1999) Strickland v. Washington 466 U.S. 668 (1984) Stringer v. Black 112 S.Ct (1992)...67,70 Suarez v. Dugger 527 So. 2d 190 (Fla. 1988)...49,52 Sume v. State 773 So. 2d 600 (Fla. 1st DCA 2000) Taylor v. Hayes 418 U.S. 488 (1974) Terry v. State 668 So. 2d 954 (Fla. 1996) Thompson v. State 647 So. 2d 824 (Fla. 1994) Tribune Co. v. Cannella 458 So. 2d 1075 (Fla. 1984) United States v. Bagley 473 U.S. 667 (1985) United States v. Goodwin 457 U.S. 368 (1982) Valle v. State 705 So. 2d 1331 (Fla. 1997) Ventura v. State 673 So. 2d 479 (Fla. 1996)... 59,60,62 Wargo v. Wargo 669 So. 2d 1123 (Fla. 4th DCA 1996) Wayland v. Wayland 595 So. 2d 234 (Fla. 3d DCA 1992) Williams v. Head xi

13 185 F.3d 1223, (11th Cir. 1999) OTHER AUTHORITIES CITED: Fla. Code Jud. Conduct, Canon 3E(1)(a) & (b) Fla. R. Jud. Admin. Rule 2.160(c), (d)(1) & (2)...49,52 Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision pp xii

14 STATEMENT OF THE CASE AND FACTS A grand jury indicted Mr. Mendoza and two co-defendants, Lazaro Cuellar ("Lazaro") and Humberto Cuellar ("Humberto"), for first-degree murder, conspiracy to commit robbery, attempted armed robbery, armed burglary with an assault, and possession of firearm during the commission of a felony (R 1-4). The grand jury predicated the first-degree murder charge on both the theory of premeditation and felony-murder (R 1). However, at trial, the State abandoned the premeditation theory and conceded that it had failed to establish a prima facie case of premeditation. (TRT 1157). The felony-murder charge was based on the theory that the victim, Mr. Calderon, was killed while the defendants were engaged in committing or attempting to commit a robbery or burglary (R 1). On May 20, 1993, prior to Mr. Mendoza's trial, Lazaro entered into a plea agreement with the State and the lower court in which he agreed to plead guilty to the lesser offense of manslaughter and plead guilty as charged to the offenses of conspiracy to commit robbery and attempted armed robbery (TRT ). The court accepted the plea and agreed to sentence him to three (3) concurrent terms of ten (10) years in prison (TRT 202). The plea agreement specifically set forth the condition that if Lazaro failed to perform any of the required conditions, he would be re-sentenced to twenty-seven (27) years in prison (TRT , 202). 1

15 In exchange for his plea to the reduced charge and the ten-year sentence, Lazaro agreed to take - and successfully pass - a polygraph test (TRT ). The State scheduled Lazaro to take the polygraph test the week following Lazaro's plea and sentencing hearing (TRT 205). The plea agreement further required Lazaro to testify against Mr. Mendoza but specifically provided that he not have to testify against his brother Humberto (TRT ). On January 18, 1994, approximately two weeks before the start of Mr. Mendoza's trial, Humberto entered into a plea agreement in which he pleaded guilty to second-degree murder and was sentenced to twenty (20) years in prison (TRT 237). He also pleaded guilty to the remaining charges(trt ). In exchange for being allowed to plead to the reduced charge and for the twenty-year sentence, Humberto agreed to testify against Mr. Mendoza (TRT 241, 1086). As part of the agreement, Humberto was required to testify consistent with what he told the prosecutor a week earlier when the prosecutor was "discussing his testimony" (TRT 244). If the prosecution thought that Humberto did not testify "truthfully", then the agreement called for Humberto to be resentenced to more than the agreed upon twenty-year sentence (TRT ). He also agreed to submit to a polygraph test (TRT ). During opening statements of Mr. Mendoza's trial, Mr. Mendoza's trial counsel told the jury that Humberto was the person who shot the victim, Mr. Calderon (TRT 610). Trial counsel also argued that Mr. 2

16 Mendoza and the two co-defendants did not confront Calderon in order to rob him but, instead, in an attempt to collect a debt (TRT 610, 611). Counsel further suggested to the jury that, in Lazaro's deposition taken in October of 1993, long after he cut his plea deal with the State in May of 1993, Lazaro maintained that they did indeed confront Mr. Calderon for the purpose of collecting a debt, not robbery, and that evidence of this fact will be presented at trial (TRT 611-2). Trial counsel also suggested that the fact that the evidence will show that gun-shot residue was found on both Humberto's and Lazaro's hands was significant (TRT 608-9). The State's case centered on the testimony of co-defendant-turned- State-witness Humberto Cuellar. Humberto testified that Mr. Mendoza approached him and asked him if he wanted to rob a person, who, according to Humberto's testimony, Mr. Mendoza said always had money on him because he was a "boletero" (TRT 1034). Humberto testified that he agreed to commit the robbery with Mr. Mendoza and at some point asked his brother, Lazaro, to be the driver (TRT 1035, 1038). According to Humberto, on several dates prior to the shooting, they drove by Mr. Calderon's house to learn his routine (TRT 1039, 1041). As to the shooting itself, Humberto testified that after Lazaro drove them to a location near Mr. Calderon's house, Humberto and Mr. Mendoza got out of the car when they saw Mr. Calderon exit the house (TRT 1047). When Mr. Calderon opened the door to his vehicle parked in 3

17 the driveway, Humberto and Mr. Mendoza struggled with him until Humberto hit him on the head with a gun that Humberto had removed from Lazaro's car (TRT 1050). Other than Humberto's testimony, there was no evidence that Humberto was the person who hit Mr. Calderon over the head. Police had no fingerprints from the gun linking Humberto to the Taurus nine millimeter, the gun the State claimed was used to strike Mr. Calderon over the head. After the trial, the prosecutor told the court that Lazaro "had the gun" according to all his statements (TRT 830). According to Humberto, after getting hit over the head with a gun, Mr. Calderon pulled out his own gun and fired three times, striking Humberto once in the chest (TRT 1051). Humberto testified that once Mr. Calderon shot him, Humberto ran back to the car and that, while he was running back, he heard a few more shots (TRT ). Humberto claimed at trial that when Mr. Mendoza returned to the car shortly thereafter, Mr. Mendoza stated that he had shot the man (TRT 1055). This contradicted his statement to police that he passed out when he got in the car and did not even know if Mr. Mendoza got into the car afterward (R 326-7; TRT ). The jury found Mr. Mendoza guilty of first-degree murder, conspiracy to commit robbery, attempted armed robbery, armed burglary with an assault, and possession of a firearm during the commission of a felony. See Mendoza v. State, 700 So. 2d 670 (Fla. 1997). 4

18 After the trial, the State asked the court to vacate Lazaro's sentence on the grounds that he "lied" in his pretrial deposition in violation of his plea agreement (R ; TRT ). The State pointed out to the court that the State could not call Lazaro as a witness because Humberto at trial claimed that Lazaro knowingly participated in the planning of the alleged attempted robbery (TRT 830). Clearly Lazaro's version of events as set forth in his pre-trial deposition so strongly contradicted the State's theory of the case (that this was an attempted robbery) that the State tried to have him re-sentenced to 27 by years for violating the provision of his plea agreement that he "truthfully" testify (i.e. to testify consistent with the State's theory). Also significant in terms of the specifics of the actual shooting: the prosecutor told the court that Lazaro "had the gun in all these statements" (TRT 830). Other than Humberto's testimony, there was no evidence that Humberto was the person who hit Mr. Calderon over the head. There was no evidence, such as fingerprints, linking Humberto to the Taurus nine millimeter, the gun the State claimed was used to strike Mr. Calderon over the head. The jury voted in favor of death by a vote of seven (7) to five (5). See Mendoza v. State, 700 So. 2d 670, 673 (Fla. 1997). The court sentenced Mr. Mendoza to die in the electric chair and found the following aggravating circumstances: (1) prior conviction for a violent 5

19 felony; and (2) committed while engaged in the commission of a robbery and for pecuniary gain (merger of aggravators) Id. Significantly, the trial court concluded that Mr. Mendoza failed to establish any mitigating factors, statutory or otherwise, based on his mental health, experiences in Peru, or drug use (TRT , 1733, 1734; R ). The trial court concluded in its sentencing order, "The defendant has failed to establish the existence of any statutory or non-statutory mitigating factors" (R 956; TRT 1735)(emphasis added). On direct appeal, the Florida Supreme Court affirmed the conviction and sentence. See Mendoza v. State, 700 So. 2d 670 (Fla. 1997). The Court specifically relied upon the trial court's rejection of these mitigating circumstances as a basis to conclude that the death penalty was not disproportionate. See Id. at 678 (in finding that the death penalty was proportionate, the majority found it significant that "the trial court considered but found no mitigation in the form of appellant's history of drug use and mental problems"). Mr. Mendoza timely petitioned the United States Supreme Court for certiorari. This petition was denied on October 5, Mendoza v. Florida, 119 S.Ct. 101 (1998). Mr. Mendoza filed his final amended motion for post-conviction relief on September 5, 2000 (PCR ). The trial court subsequently denied Mr. Mendoza's motions to compel the production of public records 6

20 (Supp. PCR/Appellant's Appendix 1 ) and motion to disqualify Judge Postman (PCR 655-6, 798, 800). At the Huff hearing held on January 26, 2001, the court orally summarily denied all of Mr. Mendoza's post-conviction claims (PCR ). The court issued a written summary denial on March 5, 2001 (PCR ). Mr. Mendoza filed a timely notice of appeal on March 27, 2001 (PCR ). This appeal from the trial court's summary denial of Mr. Mendoza's initial motion for post-conviction relief follows. SUMMARY OF THE ARGUMENT Point I: The trial court erred in summarily denying many of Mr. Mendoza's claims, including the claims that he was denied his constitutional right to the effective assistance counsel at both the guilt-innocence and penalty phases of the trial. Point II: The trial court violated Mr. Mendoza's constitutional right to due process of law when the court denied his motion to recuse Judge Postman. Point III: The trial court denied Mr. Mendoza's constitutional right to due process of law and equal protection when the court improperly denied Mr. Mendoza access to public records. Point IV: The trial court erred by denying Mr. Mendoza's claim 1 This Court recently ordered that the record be supplemented. As of the filing of this initial brief, the supplemental record has not yet been filed. Appellant will file an Appendix containing copies of the records ordered supplemented as soon as possible. 7

21 that trial counsel was ineffective during voir dire. Point V: The trial court erred by denying Mr. Mendoza's claim that the jury venire was not sworn prior to voir dire. Point VI: The trial court erred by denying Mr. Mendoza's claim that trial counsel was ineffective as a result of unobjected to prejudicial, inflammatory and improper statements the prosecutor and the trial court. Point VII: The trial court erred by denying Mr. Mendoza's claim that trial counsel was he was denied a fair trial when incorrect and improper penalty phase jury instructions shifted the burden of proof to Mr. Mendoza to prove that death was inappropriate. Point VIII: The trial court erred by denying Mr. Mendoza's claim that he was denied a fair trial when the trial court erroneously instructed the jury on the standard for judging expert testimony. Point IX: The trial court erred by denying Mr. Mendoza's claim that the jury received inadequate guidance concerning the aggravating circumstances to be considered. Point X: The trial court erred by denying Mr. Mendoza's claim that trial counsel was ineffective for not objecting to the State's improper reliance on non-statutory aggravating factors. Point XI: The trial court erred by denying Mr. Mendoza's claim that trial counsel was ineffective for not objecting to comments that 8

22 unconstitutionally diluted the jury's sense of responsibility towards sentencing. Point XII: The trial court erred by denying Mr. Mendoza's request to interview jurors and by denying his claim that the rules prohibiting his lawyers from interviewing jurors are unconstitutional. Point XIII: The trial court erred by denying Mr. Mendoza's claim that was ineffective for failing to object when the State over broadly and vaguely argued aggravating circumstances and when trial counsel conceded aggravating circumstances without Mr. Mendoza's consent. Point XIV: The trial court erred by denying Mr. Mendoza's claim that electrocution and lethal injection are cruel and/or unusual punishments and constitute inhuman and degrading treatment and/or punishment. Point XV: The trial court erred by denying Mr. Mendoza's claim that Florida's capital sentencing statute is unconstitutional. Point XVI: The trial court erred by denying Mr. Mendoza's claim that trial counsel was ineffective for failing to move for a change of venue. Point XVII: The trial court erred by denying Mr. Mendoza's claim that the State's use of automatic aggravating circumstances was unconstitutional. Point XVIII: The trial court erred by denying Mr. Mendoza's claim that improper conduct by the trial court, as well as trial counsels' 9

23 failure to object to such conduct, were unconstitutional. Point XIX: Mr. Mendoza is insane to be executed. Point XX: The trial court erred by denying Mr. Mendoza's claim that Mr. Mendoza did not receive a fair trial due to the cumulative affect of constitutional error. ARGUMENT POINT I THE TRIAL COURT ERRED BY SUMMARILY DENYING MR. MENDOZA'S CLAIMS; MR. MENDOZA IS ENTITLED TO AN EVIDENTIARY HEARING. A. Erroneous Summary Denial In his rule motion, Mr. Mendoza set forth substantial and detailed claims demonstrating entitlement to an evidentiary hearing. These claims include specific fact-based allegations that Mr. Mendoza's trial counsel was ineffective both during the guilt-innocence and penalty phases of the trial. The trial court refused to grant an evidentiary hearing and summarily denied these claims (PCR ). The trial court erred because Mr. Mendoza has alleged facts not conclusively rebutted by the record and which demonstrate deficient trial counsel performance that prejudiced Mr. Mendoza. This Court should reverse the trial court's order summarily denying these claims and remand for an evidentiary hearing. Under rule 3.850, a post-conviction defendant is entitled to an evidentiary hearing unless the motion and record conclusively show that 10

24 the defendant is entitled to no relief. Gaskin v. State, 737 So. 2d 509 (Fla. 1999); Rivera v. State, 717 So. 2d 477 (Fla. 1998). The defendant is entitled to an evidentiary hearing on a claim of ineffective assistance of counsel if he alleges specific facts which are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant. Gaskin at 516 citing Roberts v. State, 568 So. 2d 1255, 1259 (Fla. 1990). The trial court must accept all allegations in the motion as true to the extent they are not conclusively rebutted by the record. See Gaskin at 516; Valle v. State, 705 So. 2d 1331 (Fla. 1997). On appeal, in order to uphold a trial court's summary denial of claims raised in a motion, the claims must be either facially or conclusively refuted by the record. See Peede v. State, 748 So. 2d 253, 257 (Fla. 1999). Where no evidentiary hearing is held below, this Court must accept the defendant's factual allegations to the extent they are not refuted by the record. Id. An evidentiary hearing is presumed necessary absent a conclusion demonstration that the defendant is entitled to no relief. Gaskin at 516. There is a presumption in favor of granting evidentiary hearings on initial motions asserting fact-based claims. See Gaskin 737 So. 2d 509, 517 (Fla. 1999) n.17. B. Ineffectiveness At Guilt-Innocence Phase 1. Mr. Mendoza Did Not Commit or Attempt to Commit a Robbery or Burglary In his rule motion, Mr. Mendoza maintains that trial counsel 11

25 was ineffective for failing to investigate, discover, and present available evidence that he did not commit, or attempt to commit, a robbery or burglary (PCR 242-3, 251, 261, 313, 316). Specifically, Mr. Mendoza asserts that his trial counsel failed to present available evidence that Mr. Mendoza and the two co-defendants confronted the victim, Mr. Calderon, in order to collect a debt and not for the purpose of committing a robbery or burglary (PCR 242-3, 251, 261, 313, 316). This evidence, had it been presented at trial, would have established that Mr. Mendoza was not guilty of felony-murder. As alleged in his rule motion, evidence existed - including evidence in the form of statements from Lazaro Cuellar - that this was not an attempted robbery but, instead, an attempt to collect a debt (PCR 242). Trial counsel even stated in opening statements that after co-defendant Lazaro Cuellar entered into a plea agreement with the State, in which, as a condition of his plea, he agreed to testify truthfully in all matters relating to Mr. Mendoza's case or face violating his plea agreement and being re-sentenced to 27 years in prison (TRT ), Lazaro testified in his sworn deposition that they confronted Calderon simply to collect a debt and not for the purpose of robbing him (TRT ). In this regard, after the trial, the State asked the court to vacate Lazaro's sentence on the grounds that he "lied" in his pretrial deposition and therefore allegedly violated his plea agreement (R

26 31; TRT ). At that hearing, the State pointed out to the court that the State did not call Lazaro as a witness because Humberto at trial claimed that Lazaro knowingly participated in the planning of the alleged attempted robbery (TRT 830). Obviously, Lazaro's version of events as set forth in his pre-trial deposition so strongly contradicted the State's theory of the case (that this was an attempted robbery) that the State tried to have him re-sentenced to 27 by years for violating the provision of his plea agreement that he "truthfully" testify (i.e. testify consistent with the State's theory). This evidence - that Lazaro steadfastly maintained even after his plea agreement that this was not a robbery and which trial counsel never presented to the jury - directly refutes the State's theory of the case. Lazaro was obligated to give truthful deposition testimony or face the State vacating his plea agreement (TRT ). This makes Lazaro's sworn statement that they approached Mr. Calderon merely to collect a debt all the more powerful. Lazaro was facing a first-degree murder charge for his involvement in the incident. In exchange for his plea, the State agreed to reduce the charge to manslaughter and agreed to a ten-year prison sentence, a sentence that constituted a downward departure from the sentencing guidelines (TRT 192; TRT ). The State also promised that he would not have to testify against his brother, Humberto (TRT 200). With the threat of having the plea revoked and being re-sentenced to 27 years in prison if he was not truthful, 13

27 Lazaro maintained that it was not an attempted robbery. Trial counsel never presented this powerful evidence to the jury. In its written order summarily denying Mr. Mendoza's rule motion, the trial court concluded that the claim that counsel was ineffective "for failing to investigate: whether Defendant's case was a felony murder... is rebutted by the record" (PCR 665-6). The trial court in its order failed to reference or cite to any portion of the trial record which conclusively refutes Mr. Mendoza's claim that trial counsel was ineffective for not presenting available evidence that this was not an attempted robbery or burglary. Although the trial court cited to portions of the trial transcript in its order (PCR 666), the portions of the record cited do not conclusively refute the claim. Therefore, an evidentiary hearing is required. Mr. Mendoza also alleges that trial counsel was ineffective when counsel failed to present available evidence that, at the time of the shooting, Mr. Calderon was involved in racketeering activities and ran a "bolito" 2 operation (PCR 242-4). This evidence would have further supported the defense that Mr. Calderon was confronted in order to collect a debt and not for the purposes of robbery or burglary. Evidence that Mr. Calderon was involved in bolito activities at the time of his death would have constituted additional evidence that Mr. 2 "Bolito" is a type of illegal lottery. See Greater Loretta Improvement Association v. State, 234 So. 2d 665, 672 (Fla. 1970); Carnagio v. State, 143 So. 164, 165 (Fla. 1932). 14

28 Mendoza was not committing or attempting to commit a robbery but, instead, was attempting to collect money owed by Mr. Calderon. The trial court in fact ruled such evidence was relevant and admissible (TRT , ). However, because trial counsel failed to investigate and discover this evidence, the jury never learned of this critical exculpatory information. In the paragraph of the trial court's order in which the trial court concluded that this claim is rebutted by the record (PCR 665-6), the trial court reasoned, "Indeed, defense counsel... argued motions concerning the admissibility of victim's bolitero background and racketeering arrest" (PCR 666). The trial court's summary denial of this claim cannot be sustained based on this reasoning. The issues argued at trial to which the trial court refers in its order were whether or not the trial court should allow the defense to present evidence of the victim's 1987 racketeering arrest (R 168; TRT ) and whether the victim in the past, prior to the time of the shooting, had been involved in bolito activities. While the trial court ruled evidence of the victim's 1987 racketeering arrest and past bolito activity was inadmissible, the court ruled that the defense could present evidence that the victim, at the time of the shooting, was involved in bolito (TRT ). Mr. Mendoza asserts that trial counsel was ineffective for not presenting available evidence - which the trial court ruled it would have admitted - that the victim at the time of the 15

29 shooting was involved in bolito. Because this claim is not refuted by the record, an evidentiary hearing is required. Similarly, Mr. Mendoza argues in his motion that trial counsel failed to present available evidence that Mr. Calderon's involvement in criminal activities were such that he regularly armed himself and had recently been wearing a bullet-proof vest (PCR 243). As noted by Justice Anstead in his concurring and dissenting opinion on direct appeal, Mr. Calderon initiated the shooting - firing three (3) shots before he was shot. Mendoza v. State, 700 So. 2d 670, 679 (Fla. 1997). Evidence that Mr. Calderon regularly armed himself and wore a bulletproof vest is consistent with Mr. Calderon being the aggressor and would have corroborated the defense that he was involved in criminal bolito activities, which in turn would have supported the defense that this was not an attempted robbery or burglary. Mr. Mendoza's claim on this matter is not refuted by the record and is not even addressed in the trial court's order summarily denying the motion. The record clearly demonstrates - and in no manner refutes - the prejudice caused by trial counsel's failure to present evidence that this was not an attempted robbery or burglary. All of trial counsel's deficiencies mentioned above resulted in the jury wrongly concluding that this was an attempted robbery or burglary. Had counsel not been deficient, the jury would have concluded otherwise and Mr. Mendoza would not have been convicted of first-degree murder. 16

30 At trial, the trial court granted Mr. Mendoza's motion for judgment of acquittal on the charge of premeditated murder (the State agreed that it had not established a prima facie case of premeditated murder) (TRT 1157). The State proceeded exclusively on a felony-murder theory. As a result, trial counsel's failure to present evidence that Mr. Mendoza did not commit or attempt to commit a robbery or burglary prejudiced Mr. Mendoza such that had trial counsel not been deficient by failing to challenge the alleged underlying felonies, there is a reasonable probability that the jury would not have found him guilty of felony-murder. If the jury believed that he did not commit or attempt to commit a robbery or burglary, then there would have been no legal basis to find Mr. Mendoza guilty of felony-murder and thus no basis to find him guilty of first-degree murder. In opening statement, trial counsel told the jury that Lazaro would testify that they did not confront Mr. Calderon in order to commit robbery, but, instead, in order to simply collect a debt (TRT ). However, as the record demonstrates, trial counsel never called Lazaro to the stand and presented no evidence supporting this defense. 3 Trial counsel never explained to the jury during closing 3 Counsel presented no evidence to support his opening statement that Mr. Mendoza was not attempting to rob Calderon. All counsel could do was argue that the mere fact that the bank bag was not taken suggested that robbery was not a motive (TRT ). This weak circumstantial evidence pales in comparison to what would have been direct testimony from Lazaro that this was not an attempted robbery. 17

31 arguments why the jury never heard the evidence promised by trial counsel. As a result, the jury likely concluded that trial counsel's promise in opening statement that the evidence - specifically, Lazaro's testimony - would show that this was not an attempted robbery was nothing but knowingly a false claim born out of pure desperation. Given the fact that the only direct and meaningful evidence supporting the State's robbery theory came from the testimony of Humberto, who cut a deal to testify for the State in order to save himself, there is a reasonable probability that had the jury heard evidence contradicting Humberto's testimony on the issue of whether or not this was an attempted robbery, the outcome would have been different. The files and records do not refute this claim. Trial counsel's failure to present the available evidence that this was not an attempted robbery or burglary left unchallenged the State's argument that the jury had to find Mr. Mendoza guilty of felony-murder even if they found that Mr. Mendoza was not the shooter. The prosecutor argued to the jury: You know what, even if -- even if Lazaro Cuellar and Humberto Cuellar and Marbel Mendoza all three of them got out of that car, Lazaro's car, parked down a few houses and walked onto that driveway and Lazaro Cuellar shot Calderon, that man, the defendant in this case, is still guilty... (TRT 1337). The State argued that if the jury found an attempted robbery occurred, then they had to find Mr. Mendoza guilty. By failing 18

32 to present the available evidence that this was not an attempted robbery, trial counsel effectively assured that the jury would find Mr. Mendoza guilty of felony-murder. Out of desperation, trial counsel argued to the jury that there was no robbery in this case because nothing was taken (TRT ). Even though trial counsel admitted that the prosecution was also asserting that this was felony-murder under the theory of attempted robbery, trial counsel reasoned that no such attempt was made since nothing was taken (TRT 1330). Trial counsel's argument made no sense because, by definition, an "attempt" requires that the act was not completed. The fact that none of the victim's property was taken in no manner countered the State's theory of felony-murder based on an attempted robbery or burglary. Without the benefit of the available evidence that this was not an attempted robbery or burglary, the jury had little choice but to find that an attempted robbery occurred. Mr. Mendoza is entitled to an evidentiary hearing on this issue. 2. Mr. Mendoza Did Not Shoot The Victim Mr. Mendoza asserts in his rule motion that trial counsel was ineffective for failing to investigate, discover, and present available evidence that Mr. Mendoza did not shoot Mr. Calderon (PCR 244-6, 251-2). Most critical was trial counsel's failure to effectively present to the jury the gun-shot residue evidence. Even though police department criminalist Rao testified for the defense that, based upon 19

33 gun-shot residue hand swabs taken of Lazaro following the shooting, it was "more likely than not" that Lazaro had fired a gun (TRT 1205, 1207), trial counsel's deficient performance allowed the State to severely discredit this powerful evidence that Mr. Mendoza did not shoot the victim. Mr. Mendoza also asserts that an expert in crime reconstruction has concluded that trial counsel failed to effectively challenge the State's theory that Mr. Mendoza was the shooter and that this failure on the part of trial counsel resulted in Mr. Mendoza being convicted (PCR 246). Because the files and records do not conclusively refute these claims, an evidentiary hearing is required. Mr. Mendoza alleges in his motion that trial counsel failed to assure that police department criminalist Rao rendered his opinion - that Lazaro more likely than not fired a gun - based on the correct time of day that police swabbed Lazaro's hands for gun-shot residue (PCR 252-3; TRT , 1194, 1283). In Rao's opinion, based on Rao's assumption that police swabbed Lazaro's hands for gun-shot residue at 9:00 a.m. on the morning of the shooting, it was more likely than not that Lazaro had fired a gun (TRT 1205, 1207). Rao's opinion was based on the quantity of lead particles found on the swabs of Lazaro's hands (TRT 1207). Significantly, Rao believed that the number of particles found on Lazaro's hands indicated that it was more likely that he had fired a weapon, as opposed to having merely handled a weapon that had been fired (TRT 1205). 20

34 Due to counsel's deficient performance, the State was able to severely undermine this highly exculpatory evidence. Trial counsel failed to inform Rao that police may have swabbed Lazaro's hands at 7:45 a.m. instead of 9:00 a.m. (TRT 1283). Because Rao specifically grounded his opinion on his belief that Lazaro's hands were swabbed at 9:00 a.m., the State was able to discredit Rao's opinion that the evidence showed that it was "more likely than not" that Lazaro had fired a gun. Had counsel properly investigated the case, the State would not have been able to impeach Rao's opinion. Had trial counsel effectively investigated the case, counsel would have learned - and conveyed to defense witness Rao - that police may have swabbed Lazaro's hands earlier than 9:00 a.m. On cross-examination of Rao, the State elicited from Rao that his opinion depended significantly on the length of time between the shooting and when police swabbed Lazaro's hands (TRT 1208). The State then elicited the following testimony from Rao: Q. So if the time frame is wrong, your opinions are invalidated? A. That's correct. (TRT 1208). On rebuttal, the State presented evidence that Lazaro's hands were swabbed at 7:45 a.m., which, if believed by the jury, suggested that possibly Rao's opinion was irrelevant (TRT , 1194, 1283). In closing arguments, the State capitalized on trial counsel's blunder and argued that, because Rao based his opinion on the incorrect 21

35 time that police swabbed Lazaro's hands, Rao's opinion was worthless (TRT , 1341). But for trial counsel's failure in this regard, the outcome would have been different. This claim is not conclusively refuted by the record and the trial court erred by not granting an evidentiary hearing. In addition to failing to effectively present the exculpatory evidence that the gun-shot residue tests strongly suggested that Mr. Mendoza was not the shooter, Mr. Mendoza asserts in his rule motion that trial counsel was ineffective when counsel allowed without challenge the State to attack the significance of Rao's opinion. Specifically, Mr. Mendoza argues in his motion that trial counsel left unchallenged the prosecutor's incorrect suggestion that Lazaro could have gotten gun-shot residue on his hands by helping the wounded Humberto into the hospital (PCR 253; TRT 1342). This is because the record establishes that Lazaro did not help Humberto into the hospital. Trial counsel left the prosecutor's suggestion to the contrary unchallenged and, as a result, let stand the State's argument that the gun-shot residue on Lazaro's hands were not the result of Lazaro having fired a gun. The prosecutor suggested to the jury that the jury should discount Rao's opinion that the gun-shot residue found on Lazaro's hands meant that it was more likely than not that he had fired a gun because, according to the prosecutor, Lazaro helped Humberto into the hospital 22

36 and, therefore, may have gotten the particles on his hands as a result and not from firing a gun (TRT 1342). This was incorrect since it had been established that only Mr. Mendoza, and not Lazaro, had helped Humberto into the hospital (TRT 720, 725, 727, 730). Yet, trial counsel in closing argument never pointed this out to the jury. Even though trial counsel argued to the jury that Lazaro was the shooter (directly contradicting his opening statement that Humberto was the shooter), trial counsel failed to mention the significant fact that, contrary to the State's suggestion, Lazaro could not have gotten gun-shot residue on his hands by helping Humberto into the hospital since the evidence established that only Mr. Mendoza came into the hospital with Humberto (TRT 720, 725, 727, 730). As Mr. Mendoza argued in his motion that had trial counsel effectively presented the evidence surrounding the gunshot residue tests, there is a reasonable probability that the outcome of both the guilt-innocence and the penalty phase would have been different. Because the files and records do not conclusively refute the claim that trial counsel was ineffective for not discovering and effectively presenting evidence that Mr. Mendoza did not shoot the victim, Mr. Mendoza is entitled to an evidentiary hearing. The trial court's order fails to point to any record evidence refuting this claim (PCR 665-6). The trial court in its order cites only to the fact that "defense argued at trial that Defendant was not the shooter" (PCR 666). The mere 23

37 fact that trial counsel argued that Mr. Mendoza was not the shooter does not refute the claim that trial counsel was ineffective. An evidentiary hearing is warranted. 3. Closing Argument Mr. Mendoza also argues in his rule motion that trial counsel was ineffective by arguing to the jury inconsistent theories as to the identity of the shooter (PCR 257-8). In opening statements, trial counsel told the jury that it was co-defendant Humberto Cuellar who shot the victim (TRT 610). Yet, trial counsel switched theories during closing arguments and argued that it was Lazaro Cuellar who shot Calderon, not Humberto (TRT 1225, ), and that Humberto Cuellar was accusing Mr. Mendoza in order to protect his brother (TRT 1329). From the jury's perspective, trial counsel's inexplicable flip-flop on such a significant and basic factual issue - the identity of the shooter - rendered Mr. Mendoza's defense entirely incredible. In opening statement, trial counsel accused Humberto of being the shooter, not Lazaro: [Trial counsel] We know you are going to find out from the evidence that Mr. Calderone [sic], in fact, did fire his gun, three shots. And who gets hit by that shot? Not Marbel Mendoza, but Humberto Cuellar, because he's the one who did the shooting. That's who Mr. Calderone shot. (TRT 610)(emphasis added). However, mid-trial, trial counsel completely abandoned this theory and argued to the jury that Lazaro was the shooter (TRT 1225, ). This could not have made any sense to the 24

38 jury. More importantly, trial counsel's flip-flop rendered the defense unbelievable. The defense was not that Mr. Mendoza was not present at the scene of the shooting, but, rather, that, although he was present, he was not the shooter (and that it was not an attempted robbery or burglary). If Mr. Mendoza was present at the scene at the time of the shooting, the jury would reasonably infer that Mr. Mendoza himself knew who shot Mr. Calderon. Yet, trial counsel, on behalf of Mr. Mendoza, told the jury in opening statement that Humberto was the shooter, and then turned around in closing and told the jury that Lazaro was the shooter. The jury could draw only one conclusion: The defense is not grounded on the truth and cannot be believed. Trial counsel's conduct conveyed to the jury that the defense's case was not only born out of desperation and lack of investigation, but also grounded on deceit. Trial counsel's totally inconsistent and contradictory theories constituted deficient performance that greatly prejudiced Mr. Mendoza. An evidentiary hearing is warranted since this claim is not conclusively refuted by the record. 4. Counsel's Failure To Attack Co-Defendants' Credibility Mr. Mendoza further argues in his rule motion that trial counsel was ineffective for not eliciting evidence that the reason the State offered Humberto a deal was because Lazaro had failed a polygraph test (PCR 254). As a condition of his plea, Lazaro was required to 25

39 take, and pass, a polygraph test (TRT ). Evidence that the State made the plea offer to Humberto only after Lazaro failed a polygraph test would have undermined not only the credibility of Humberto's testimony but the entirety of State's case. The trial court failed to address this claim in its written order summarily denying the motion. The current limited record strongly suggests that Humberto's testimony would have been placed in serious doubt had Lazaro testified. After the trial, the State asked the court to vacate Lazaro's sentence on the grounds that he "lied" in his pretrial deposition in violation of his plea agreement (R ; TRT ). The State pointed out to the court that the State could not call Lazaro as a witness because Humberto at trial claimed that Lazaro knowingly participated in the planning of the alleged attempted robbery (TRT 830). Obviously, Lazaro's version of events as set forth in his pre-trial deposition so strongly contradicted the State's theory of the case (that this was an attempted robbery) that the State tried to have him re-sentenced to 27 by years for violating the provision of his plea agreement that he "truthfully" testify (i.e. to testify consistent with the State's theory). Also significant in terms of the specifics of the actual shooting: the prosecutor told the court that Lazaro "had the gun in all these statements" (TRT 830). Other than Humberto's testimony, there was no evidence that Humberto was the person who hit Mr. Calderon over the 26

40 head. There was no evidence, such as fingerprints, linking Humberto to the Taurus nine millimeter, the gun the State claimed was used to strike Mr. Calderon over the head. Given the State's recognition of Lazaro's ties to the gun, clearly there is a reasonable probability that, had all of this conflicting evidence been presented to the jury, the jury would have had deemed Humberto's testimony credible, and thus found that a reasonable doubt existed as to Mr. Mendoza's guilt. 5. Trial Counsel Conducted No Investigation and Lacked Experience Mr. Mendoza asserts that trial counsel failed to conduct any investigation despite the fact that the trial court allowed the defense funds to hire an investigator (PCR 240-1). The combination of inexperience and lack of investigation is significant. Mr. Mendoza's claims that trial counsel were inexperienced in trying capital cases (PCR 239, 241). Specifically, before being assigned to Mr. Mendoza's case, Mr. Suri, the lead attorney, had never tried a capital case (PCR 239, 241). Mr. Wax had participated in one capital trial and one resentencing proceeding, both resulting in death sentences (PCR 239). Trial counsel's lack of experience, which is not refuted by the record, bolsters Mr. Mendoza's claims of trial counsel was ineffective. See Williams v. Head, 185 F.3d 1223, (11th Cir. 1999)(finding the heavy presumption of reasonableness is stronger when counsel is experienced); Spaziano v. Singletary, 36 F.3d 1028, 1040 (11th Cir. 1994). Because the files and records do not conclusively refute Mr. 27

41 Mendoza's claims that trial counsel was ineffective at the guiltinnocence phase of the trial, Mr. Mendoza is entitled to an evidentiary hearing on his claims. Finally, the trial court also erred by denying Mr. Mendoza's claims that trial counsel was ineffective for conceding that there was no prejudice from the State's admitted discovery violation regarding the medical examiner's opinion that the victim's head laceration was caused by the Taurus nine millimeter gun (PCR 255-6), for arguing to the jury that the shooter necessarily had to be right-handed (PCR 261-3), and for presenting an ineffective closing argument (PCR ). The trial court should have granted an evidentiary hearing. 6. Voluntary Intoxication Mr. Mendoza maintains that trial counsel was ineffective for failing to discover and present to the jury available evidence that he was using drugs and intoxicated to such an extent as to have negated the specific intent elements of the charged offenses (PCR 246-7, ). If the jury believed that he did not commit or attempt to commit a robbery or burglary, then there would have been no legal basis to find Mr. Mendoza guilty of felony-murder and thus no basis to find him guilty of first-degree murder. Had counsel presented the available evidence that Mr. Mendoza could not have harbored the specific intent necessary to support a finding of guilt for the underlying offenses, the outcome would have been different. Because the files and records do 28