IN THE SUPREME COURT OF FLORIDA CASE NO. SC AILEEN C. WUORNOS, Appellant, STATE OF FLORIDA, Appellee.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC AILEEN C. WUORNOS, Appellant, v. STATE OF FLORIDA, Appellee. ON APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT, IN AND FOR VOLUSIA COUNTY, STATE OF FLORIDA REPLY BRIEF OF THE APPELLANT RICHARD E. KILEY CAPITAL COLLATERAL REGIONAL COUNSEL-MIDDLE REGION 3801 Corporex Park Drive, Suite 210 Tampa, Florida (813) COUNSEL FOR APPELLANT

2 TABLE OF CONTENTS Page TABLE OF CONTENTS... i TABLE OF AUTHORITIES...ii PRELIMINARY STATEMENT... 1 ISSUE I THE APPELLEE IS INCORRECT IN STATING THAT TRIAL COUNSEL DID NOT RENDER INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE PENALTY PHASE... 2 CONCLUSION AND RELIEF SOUGHT CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i

3 TABLE OF AUTHORITIES Page Blanco v. State, 507 So.2d 1377 (Fla Brewer v. Aiken, 935 F.2d 850 (7 th Cir. 1990)... 4 Chandler v. U.S., 218 F.3d 1305,1312 (11 th Cir. 2000)... 4 Brewer v. Aiken, 935 F.2d 850 (7 th Cir. 1990)... 4 Hildwin v. Dugger, 654 So.2d 107 (Fla.1995)... 9 Nibert v. State, 574 So.2d 1059 (Fla. 1990)... 7 Porter v. State, 2001 WL (Fla.) Torres-Arboleda v. Dugger, 636 So.2d 1321 ( Fla. 1994)... 5 Williams v. Taylor, 529 U.S.362, 120 S.Ct. 1495(2000)...14 ii

4 PRELIMINARY STATEMENT This reply brief covers Argument I B. of Appellant s initial brief, Argument I D. in Appellee s answer brief. As to the remaining issues Ms. Wuornos relies upon the argument and law presented in the initial brief. -1-

5 ISSUE I THE APPELLEE IS INCORRECT IN STATING THAT TRIAL COUNSEL DID NOT RENDER INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE PENALTY PHASE 1. Domingo Sanchez, an investigator with the Public Defender s Office at the time of trial, was provided a list of Ms Wuornos childhood friends. (PCR-38) This list was compiled using information provided to Sanchez by Ms. Wuornos. (PCR-44-45) 2. Billy Nolas was the penalty phase attorney at trial and had been made aware of the existence of lay witnesses from his client and one Arlene Praille(PCR-361). In fact, Nolas remembered the name Shovan as people he should have contacted and subpoenaed (PCR ) 3. Sidney Shovan testified that he was contacted by the media after Ms. Wuornos arrest, but was never contacted by the Public Defender s Office back in 1991, although the Shovan family was still living in the same neighborhood as the defendant (PCR-87-88). Sidney Shovan was contacted by CCRC-M before the hearing and stated that he would have -2-

6 testified at Ms. Wuornos trial. 4. Cindy Shovan-Dolmage testified that she was contacted by CCRC-M before the hearing and was aware that her siblings were contacted by the media and that she would have testified at trial if she had been called by defendant s counsel (PCR ). 5. Marlene Shovan-Smith testified that she had been contacted by the media in 1991 and was contacted by CCRC-M and that she was never contacted by trial counsel. Furthermore, Smith testified that she had lived in the neighborhood and would have testified at trial had the defense called her(pcr ). Along with her brother and sister, Smith was prepared to testify as to the abuse Ms. Wuornos suffered at the hands of her family, a powerful rebuttal to the ideal family picture portrayed by the state witnesses, Lori Grody and Barry Wuornos in the penalty phase of Ms. Wuornos trial. 6. Toni Nazar is the youngest of the Shovan sisters. She was not contacted by the media, but she was available to testify in Nazar could have testified as to a local pedophile named Potlock, a man who supposedly fathered defendant s child when defendant was 15 years of age. 7. In Blanco v. State,507 So.2d 1377 (Fla. 1987), this Court held that counsel was not ineffective for failing to -3-

7 call mitigation witnesses in an attempt to humanize the defendant based on the fact that the witness was in New Jersey, a fact which was unknown to the defendant. Trial counsel had already called several lay witnesses in an attempt to humanize the defendant. However, in the case at Bar, trial counsel called no lay witnesses to rebut the contention of the state that Ms. Wuornos grew up in a normal family. All of these witnesses were available to defense counsel through reasonable investigation and should have been called to document the numerous incidents of beatings, incestuous encounters with Aileen Wuornos uncle and brother and her involvement with a local pedophile. These witnesses were ready, willing and able to testify on Ms. Wuornos behalf at trial. 8. In the answer brief, Appellee relies upon Chandler v. U.S., 218 F.3d 1305,1312 (11 th Cir. 2000) (en banc) (quoting Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 3126, 97 L.Ed. 638 (1987). In Chandler, the trial counsel had called at least one witness in an attempt to humanize his client. In contrast, in the case at Bar, no witnesses were called to humanize Ms. Wuornos and highlight the abusive childhood that she suffered. These witnesses were readily available as evidenced by the fact that two of the Shovans had been located -4-

8 by the media prior to Ms. Wuornos trial and were subsequently located by CCRC-Middle nearly 10 years afterward, and that the other two Shovans were contacted by CCRC-Middle in the same neighborhood in which they lived at the time of Ms. Wuornos trial. Trial counsel s failure to call these witnesses clearly fell below the standard of professional competence. 9. In Brewer v Aiken,935 F.2d 850 (7 th Cir. 1990), the Court, quoting from Kubat v Thieret 867 F.2d 351,369 (7 th Cir. 1989),stated that: Defense counsel must make a significant effort, based on reasonable investigation and logical argument, to ably present the defendant s fate to the jury and to focus the attention of the jury on any mitigating factors. Mitigating factors brought out at trial might be emphasized, a coherent plea for mercy might be given, or new evidence in mitigation might be presented. But counsel may not treat the sentencing phase as nothing more than a mere postscript to the trial. While the Strickland threshold of professional competence is admittedly low, the defendant s life hangs in the balance at a capital sentencing hearing. Indeed, in some cases, this may be the stage of the proceedings where counsel can do his or her client the most good. In our opinion, defense counsel s failure to investigate the mental history of a defendant with low intelligence demonstrates conclusively that he did not make a significant effort, based on reasonable investigation and logical argument, to ably present the defendant s fate to the jury and to focus the attention of the jury on any mitigating factors. -5-

9 Id.at 857. It is Ms. Wuornos contention that in the case at Bar, trial counsel should have made an effort to find the Shovans and to call them in the penalty phase of the trial. 10. In Torres-Arboleda v. Dugger, 636 So.2d 1321 ( Fla. 1994), The Court held: Id. at 1325 Id. at 1325 During the hearing, collateral counsel presented substantial mitigation evidence that trial counsel could have discovered if he had conducted a reasonable investigation of Torres-Arboleda s background. Documentary evidence showed that Torres-Arboleda had a history of good behavior during his incarceration in California, had no police record in Colombia, and had attended a university in Colombia. These documents should have been considered in mitigation as such factors may show potential for rehabilitation and productivity within the prison system. Testimony at the postconviction proceeding also revealed that Torres-Arboleda grew up in abject poverty in Colombia, was a good student and child, and supported his family after his father s death. Such evidence of family background and personal history may be considered in mitigation. Based upon the testimony and documentary evidence presented during the postconviction proceeding, Torres-Arboleda has shown that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the -6-

10 proceeding would have been different. Id at 1326 Defense contends that the facts in Torres-Arboleda are on point with the facts of the case at Bar. In the case at Bar, Sidney Shovan would have testified as to the numerous bruises Aileen Wuornos had received at the hands of her grandfather. He would have also testified as to the incestuous rape that Ms. Wuornos had with her older brother Keith. Cindy Shovan- Dolmage and Marlene Shovan-Smith would have testified as to the rape between Keith and Ms. Wuornos and the rape between Barry Wuornos and Aileen Wuornos. Also both witnesses would have testified as to the cruelty Ms. Wuornos suffered at the hands of her grandfather and Lori Grody. Toni Shovan-Nazar would have testified that Ms. Wuornos was known to frequent the home of a known pedophile and was rumored to have had his baby at age Ms. Wuornos contends that the inclusion of the testimony of the above essential witnesses changes the entire evidentiary picture in Ms. Wuornos case in penalty phase and therefore undermines confidence in the death sentence imposed. Appellee s statement that this testimony would not have made any difference is a mere conclusion. 12. Appellee is in error when he states in his answer -7-

11 brief that: Given appellant s age at the time she decided to start murdering people (over thirty), appellant s childhood or early teen difficulties would not be given much weight as a non-statutory mitigator. (AB p-43) In Nibert v. State,574 So.2d 1059 (Fla. 1990),this Court stated that: Id. at Nibert presented a large quantum of uncontroverted mitigating evidence. First, Nibert produced uncontroverted evidence that he had been physically and psychologically abused in his youth for many years. The trial court found this to be possible mitigation, but dismissed the mitigation by pointing out that at the time of the murder the Defendant was twenty-seven(27) years old and had not lived with his mother since he was eighteen(18). We find that analysis inapposite. The fact that a defendant had suffered through more than a decade of psychological and physical abuse during the defendant s formative childhood and adolescent years is in no way diminished by the fact that the abuse finally came to an end. To accept that analysis would mean that a defendant s history as a victim of child abuse would never be accepted as a mitigating circumstance, despite wellsettled law to the contrary. Nibert reasonably proved this nonstatutory mitigating circumstance, and there is no competent, substantial evidence to support the trial court s refusal to consider it. In the case at Bar, Sidney Shovan testified that he had seen Ms. Wuornos with numerous bruises on her body and he had -8-

12 seen her grandfather react to Ms. Wuornos return from school. Sidney Shovan also testified that Keith Wuornos was often teased by larger boys for having sex with his own sister, Aileen Wuornos. This testimony would have humanized Wuornos with witnesses with personal knowledge rather than mere reliance upon a mental health expert who opined that Ms. Wuornos had an abusive childhood. If the testimony had been presented from witnesses who knew Ms. Wuornos during her childhood years, there is a reasonable probability that the outcome of the penalty phase would have been different. Certainly, confidence in the penalty imposed is undermined due to the failure to call these essential witnesses. Cindy Shovan-Dolmage testified that she was present at a party when Aileen Wuornos remarked that she wished her brothers would stop visiting her room at night. When this statement was made, Lori Grody threw a glass of water in Aileen Wuornos face and then threw her out of her own home. This testimony would have rebutted the testimony of both Lori Grody and Barry Wuornos who together asserted that Wuornos grew up in a normal family. Had the jury heard this unbiased testimony from a childhood friend, Grody and Barry Wuornos would have been discredited as witnesses. The proposition put forth by the State at trial that Aileen Wuornos was merely a -9-

13 bad seed would have been vitiated by the testimony of the childhood friends of Wuornos. Under those circumstances, there is a substantial likelihood that the jury would have voted for life rather than death. 13. Appellee s contention that the result would not have been different had trial counsel presented more mitigation witnesses flies in the face of the holding in Hildwin v Dugger,654 So.2d 107 (Fla.1995). In Hildwin, the defendant was convicted of the strangulation murder of Vronzettie Cox. The jury recommended death by a unanimous vote, as in the case at Bar. The Court stated: At his hearing, Hildwin presented an abundance of mitigating evidence which his trial counsel could have presented at sentencing... Our task is to determine whether Hildwin was prejudiced by his counsel s failure to present this evidence at sentencing. The trial court noted that its initial and most visceral reaction on this second prejudice prong of the Strickland test is that the sentencing phase was not a reliable adversarial testing process. However, the trial court concluded that it could not find as a matter of law, a reasonable probability that the outcome of the case would have been different; that is, had such mitigating evidence been presented that six (6) jurors would have changed their votes. In so concluding, the trial court requested that the reviewing Court give particular scrutiny to its conclusion that Hildwin was not deprived of the effective -10-

14 Id. at 110. assistance of counsel at the penalty phase of his trial. Hildwin argues that the trial court erred in concluding that he was not prejudiced by his counsel s failure to investigate and present additional mitigating evidence at sentencing. We agree. In view of the substantial mitigating evidence presented at the hearing, including the testimony of two mental health experts, we find that counsel s errors deprived Hildwin of a reliable penalty phase proceeding. In the case at Bar, trial counsel had failed to humanize Ms. Wuornos, because they ignored the first formative fifteen years of her life in the penalty phase. The testimony of the Shovans proved that Wuornos had experienced beatings and incestous rapes which would irreparably damage the growing psyche of a young girl forced to deal with trauma. Instead of the ideal family picture painted by the testimony of Lori Grody and Barry Wuornos, the jury could have heard from people from Ms. Wuornos childhood who witnessed the numerous instances of physical abuse and incest. The image of an ideal family would have been shattered by the testimony of people who grew up with Wuornos. Aileen Wuornos would have been humanized in the eyes of the jury, and the testimony of Barry Wuornos and Lori Grody would have been rebutted. Barry had reason to paint the family as -11-

15 perfect since he was actually raping his little sister/niece. It not only would have rebutted his testimony, it would have discredited it by revealing why he would lie. Clearly the jury would have better understood the testimony of the mental health experts. There was a wealth of non-statutory mitigation which, if heard by the jury, would mitigate against imposition of the death penalty. Since this evidence was not presented due to the ineffectiveness of trial counsel, Ms. Wuornos was deprived of a reliable penalty phase proceeding. A new penalty phase proceeding is the remedy. 14. In Porter v. State,2001 WL (Fla.) Justice Anstead, concurring in part and dissenting in part, addresses the prejudice prong of Srickland: Id. at : In rejecting any showing of prejudice, the trial court summarily concluded that no statutory mitigators could have been presented. The nonstatutory mitigation was similarly rejected. This evaluation clearly constitutes an error of law and ignores the obligation of the judge and jury to consider mitigation, and especially the important role of the jury in the determination of life or death. The Court in Porter further explored this issue on Page A simple illustration of this concept may be understood by positing a situation where -12-

16 counsel presented no mitigation, but it turns out there was no mitigation to present. A defendant could hardly be deemed to have been prejudiced by the failure to present what never existed. But Porter has demonstrated a scenario that is the exact opposite of this hypothetical. He presents a scenario where there was an abundance of mitigation but none was presented by counsel. Surely, nothing could be more prejudicial to a defendant whose only hope for life rests on his counsel s challenge of the State s case for aggravation and the affirmative presentation of mitigation in favor of the defendant to the jury. In the case at Bar, it is clear that there was an abundance of mitigation which was not presented by trial counsel. It was critical that the State s witnesses be rebutted by the testimony of the Shovans. It was critical to the credibility of the testimony of the mental health experts that the testimony of actual incidents which shaped the defendant s development at an early age. Due to the ineffectiveness of trial counsel, Ms. Wuornos was deprived of a reliable penalty phase proceeding. 15. Dawn Botkins had met Aileen Wuornos when she and Ms. Wuornos were 15 or 16 years of age. Botkins was asked to testify at Ms. Wuornos trial. She was never called as a witness at the trial.(pcr-177). 16. At the evidentiary hearing Botkins testified that Aileen Wuornos was tied to a bed and raped repeatedly by a -13-

17 member of the Hell s Angels motorcycle club.(pcr-179) 17. Botkins testified that Ms. Wuornos was thrown into the snow at her own party by her brother, Keith Wuornos,and locked out of the house(pcr ). 18. Botkins testified that Ms. Wuornos was reduced to sleeping in the woods and in cars (PCR-183). 19. Botkins testified as to the extensive drug use of Ms. Wuornos during her teen-age years. (PCR ) 20. Botkins testified as to Ms. Wuornos rape and subsequently giving birth to a baby boy(pcr-203). 21. Botkins testified that Ms. Wuornos was reduced to prostitution during her teen-age years (PCR-211). 22. Botkins testified about an incident where Ms. Wuornos was knocked unconscious as a result of a cruel joke played upon her by her friends (PCR-178). 23. It is clear from the post-conviction testimony of Ms. Botkins that she could have testified and humanized Aileen Wuornos as Botkins was Wuornos confidant during their teen age years. Trial counsel was ineffective for not calling this witness. Botkins was available and willing to testify. Due to counsel s ineffectiveness, Ms. Wuornos was deprived of a reliable adversarial testing during penalty phase. 24. Appellee s contention that: While Ms. Botkins was -14-

18 known to the defense and at some time they planned to call her, her testimony was not entirely favorable. Botkins described appellant as mean, potentially violent, and stated that she never complained of suffering abuse, sexual or otherwise, from her family members (PCR-457, ). In particular, she recalled that appellant loved her brother Keith very much (PCR-457). (See Appellee answer brief, P 39-40). The fact that some of the testimony of Botkins might have been construed as unfavorable to the defendant does not vitiate Wuornos contention that Botkins should have been called as a witness in the penalty phase of the trial. 25. In Williams v. Taylor, 529 U.S.362, 120 S.Ct. 1495(2000), the Supreme Court of the United States stated: Id. at 363. Although not all of the additional evidence was favorable to Williams, the failure to introduce the comparatively voluminous amount of favorable evidence was not justified by a tactical decision and clearly demonstrates that counsel did not fulfill their ethical obligation to conduct a thorough investigation of Williams background. Moreover, counsel s unprofessional service prejudiced Williams within Strickland s meaning. In the case at Bar, the Shovan family was available at the time of Ms. Wuornos. Their combined testimony detailed -15-

19 non-statutory mitigating incidents in Aileen Wuornos life up to the age when Wuornos had a baby and was then forced out of the only home she knew. Dawn Botkins then testified at the evidentiary hearing as to Ms. Wuornos life experiences after the age of 16. The testimony of Botkins was eloquent in its portrayal of a 16 year old girl impregnated by an older pedophile, scorned by her grandfather, forced to live in the woods or sleep in cars, and finally turning to prostitution and drugs. Botkins also documents a head injury and further describes Wuornos as a tough girl. Appellant contends that the combined testimony of the Shovans and Dawn Botkins should have been presented to the jury. The Williams Court further stated: Id. at 396. But as the Federal District Court correctly observed, the failure to introduce the comparatively voluminous amount of evidence that did speak in Williams favor was not justified by a tactical decision to focus on Williams voluntary confession. In the case at Bar, Wuornos contends that the failure to introduce the comparatively voluminous amount of evidence that did speak in Wuornos favor, and would have humanized her, as well as bolstering and illuminating the expert testimony, was ineffective assistance of counsel since trial counsel focused -16-

20 on only the testimony of mental health experts. 26. In regards to the prejudice prong of Strickland, the Williams court stated: Id. at 396. Second, The State Supreme Court s prejudice determination was unreasonable insofar as it failed to evaluate the totality of the available mitigation evidence both that adduced at trial, and the evidence adduced in the habeas proceeding in *398 reweighing it against the evidence in aggravation. See Clemons v Mississippi, 494 U.S. 738, , 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990).This error is apparent in its consideration of the additional mitigation evidence developed in the postconviction proceedings. In the case at Bar, Wuornos contends that a great deal of additional mitigation evidence was presented. 27. In regards to the issue of whether the aggravating factors out weigh the mitigation which should have been presented at the defendant s penalty phase trial, the Williams Court stated: Mitigating evidence unrelated to dangerousness may alter the jury s selection of penalty, even if it does not undermine or rebut the prosecution s deatheligibility case. The Virginia Supreme Court did not entertain that possibility. It thus failed to accord appropriate weight to the body of mitigation evidence available to trial counsel. In our judgment, the state trial judge was correct both in his recognition of the established -17-

21 Id. at 398 & legal standard for determining counsel s effectiveness, and in his conclusion that the entire post conviction record, viewed as a whole and cumulative of mitigation evidence presented originally, raised a reasonable probability that the result of the sentencing proceeding would have been different if competent counsel had presented and explained the significance of all the available evidence. In the case at Bar, counsel s failure to present the testimony of the Shovans and Dawn Botkins was clearly ineffective in that these witnesses were available to testify in Wuornos penalty phase. Wuornos contends that due to trial counsel s ineffectiveness, Ms. Wuornos was deprived of a reliable penalty phase proceeding. Had this wealth of non-statutory mitigation been presented, there is a reasonable probability that the result of the sentencing proceeding would have been different. Failure to call the available mitigation witnesses undermines confidence in the penalty imposed. CONCLUSION AND RELIEF SOUGHT Based on the forgoing, the lower court improperly denied Aileen Wuornos Rule relief. This Court should order that her convictions and sentences be vacated and remand the case for such relief as the Court deems proper. -18-

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23 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing Reply Brief of Appellant has been has been furnished by United States Mail, first class postage prepaid, to all counsel of record on this day of August, Richard E. Kiley Florida Bar No Assistant CCRC CAPITAL COLLATERAL REGIONAL COUNSEL-MIDDLE 3801 Corporex Park Drive Suite 210 Tampa, Florida Attorney For Appellant Copies furnished to: The Honorable R. Michael Hutcheson Circuit Court Judge 251 North Ridgewood Avenue Room 204 Daytona Beach, Florida Scott A. Browne Assistant Attorney General Department of Legal Affairs Westwood Center, Seventh Floor 2002 North Lois Avenue Tampa, Fl

24 CERTIFICATE OF COMPLIANCE I hereby certify that a true copy of the foregoing Reply Brief of Appellant, was generated in Courier New, 12 point font, pursuant to Fla. R. App. P Copies furnished to: The Honorable R. Michael Hutcheson Circuit Court Judge 251 North Ridgewood Avenue Room 204 Daytona Beach, Florida Scott A. Browne Assistant Attorney General Department of Legal Affairs Westwood Center, Seventh Floor 2002 North Lois Avenue Tampa, Fl Richard E. Kiley Florida Bar No Assistant CCRC CAPITAL COLLATERAL REGIONAL COUNSEL-MIDDLE 3801 Corporex Park Drive Suite 210f Tampa, Florida Attorney For Appellant -21-

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