IN THE SUPREME COURT OF FLORIDA No. SC 05-1877 CARL PUIATTI Appellant, vs STATE OF FLORIDA Appellee. ON APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PASCO COUNTY, FLORIDA REPLY BRIEF OF APPELLANT Steven A. Reiss Miranda S. Schiller Erin J. Law Joanna R. Varon Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, New York 10153 (212) 310-8000 Counsel for Appellant
TABLE OF CONTENTS Page INTRODUCTION...1 I. THIS COURT HAS NEVER DECIDED THE ISSUES PRESENTED IN THE INSTANT APPEAL...3 II. III. IV. PETITIONER IS NOT PROCEDURALLY BARRED FROM SEEKING RELIEF AT THIS POINT...6 PETITIONER IS ENTITLED TO RETROACTIVE APPLICATION UNDER WITT V. STATE...9 TRIAL COUNSEL CONDUCTED AN INADEQUATE INVESTIGATION... 11 CONCLUSION AND RELIEF SOUGHT... 18 i
Cases: TABLE OF AUTHORITIES Page(s) Puiatti v. Dugger, 589 So. 2d 231 (Fla. 1991)... 8, 17 Rompilla v. Beard, 125 S. Ct. 2456 (2005)...passim Stephens v. State, 748 So. 2d 1028...7 Strickland v. Washington, 466 U.S. 688 (1984)... 2, 6, 7 Wiggins v. Smith, 539 U.S. 510 (2003)...passim Williams v. Taylor, 529 U.S. 362 (2000)...9 Witt, 387 So. 2d 922 (Fla. 1980)... 4, 6, 9 Rule: Fla. R. Crim. P. 3.203... 1, 5 ii
Carl Puiatti respectfully submits this reply memorandum in further support of the Initial Brief and in response to the Answer Brief of Appellee (the Answer ). INTRODUCTION On November 12, 2004, as clarified on December 17, 2004, this Court directed the Circuit Court for the Sixth Judicial Circuit of the State of Florida (the Circuit Court ) to order an examination of Mr. Puiatti s mental competency and to make a determination of mental retardation in accordance with Florida Rule of Criminal Procedure 3.203. (PC-R 37-38) 1. In connection with that examination, the Circuit Court appointed two neutral mental health experts, Dr. Michael Greenberg and Dr. Robert Rosen (the Court-Appointed Experts ), to test, examine and evaluate Mr. Puiatti on the issues of competency and developmental disability and to submit their findings to the Circuit Court and counsel. The reports submitted by the Court-Appointed Experts contained detailed findings and conclusions on the nature and extent of Mr. Puiatti s cognitive impairments, severe and prolonged exposure to physical abuse and impaired state of mind at the time of the crime and explicitly characterized those findings as mitigating factors... that the court may wish to reconsider. (PC-R 43-52). These experts were not, as the State claims, unearthed by Mr. Puiatti 1 PC-R Record on instant appeal to this Court. NY1:\1391179\01\TTFV01!.DOC\99995.0469 1
after two decades (Answer at 26 n.3); rather, they are neutral experts appointed by the trial court and their appointment in this case reflects the confidence that the court places in them. These neutral expert opinions are now part of the record and confirm trial counsel s failure to investigate and present mitigating evidence during the penalty phase of proceedings, demonstrating that Mr. Puiatti was physically and psychologically abused as a child and turned to controlled substances at age thirteen, and explaining the effect such abuse had on his cognitive development. These findings undermine the confidence in the sentence imposed on Mr. Puiatti following a three day joint day trial with his co-defendant (excluding voir dire). This failure to investigate, much less present critical mitigating evidence is precisely the same error the United States Supreme Court cited in Rompilla v. Beard, 125 S. Ct. 2456 (2005) and Wiggins v. Smith 539 U.S. 510 (2003) in reversing the appellate court decisions and is sufficient to undermine confidence in the outcome actually reached at sentencing. Rompilla, 125 S. Ct. at 2469 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). The Court-Appointed Expert reports confirm that trial counsel s investigation into Mr. Puiatti s background for mitigating evidence was neither adequate nor reasonable. Mr. Puiatti s counsel failed to investigate and present mitigating evidence related to: (1) the severe physical abuse to which he was NY1:\1391179\01\TTFV01!.DOC\99995.0469 2
subjected as a child; (2) substance abuse; and (3) emotional and mental impairments. Such evidence was essential to corroborate and explain Mr. Puiatti s susceptibility to the coercion of his co-defendant. Here, the mitigating evidence, taken as a whole, might well have influenced the jury s appraisal of Mr. Puiatti s culpability, and the likelihood of a different result if the evidence had been presented is sufficient to undermine confidence in the outcome actually reached at sentencing. Rompilla, 125 S. Ct. at 2469 (citations omitted). I. THIS COURT HAS NEVER DECIDED THE ISSUES PRESENTED IN THE INSTANT APPEAL As a threshold matter, this appeal is not Petitioner s third appeal from the denial of a post-conviction motion as the State asserts. Answer at 12. Petitioner has never had an evidentiary hearing on the issues presented in this appeal. Nor has this Court considered the mitigation evidence presented in the Court-Appointed Expert reports. The precise issues presented in this appeal have never been reviewed or decided by the Court, as the following procedural overview reflects: Based on the extensive mitigating evidence contained in the Court- Appointed Expert reports, on April 7, 2005 Mr. Puiatti filed with the Circuit Court a supplemental memorandum requesting, among other things, an evidentiary hearing on his claim of ineffective assistance of counsel. On April 13, 2005 the NY1:\1391179\01\TTFV01!.DOC\99995.0469 3
Circuit Court issued an order stating that it does not have jurisdiction to consider any other issues that were previously raised in Defendants original motion or in prior motions because the Florida Supreme Court relinquished jurisdiction to this Court for the limited purpose of conducting an evidentiary hearing to determine whether Defendant was mentally retarded as defined in Fla. R. Crim. P. 3.203. (PC-R 41). In that Order, the Circuit Court specifically stated that [a]ny further arguments or memoranda in support of Defendant s motion should be directed to the Florida Supreme Court. (PC-R 42) (emphasis added). In accordance with the Circuit Court s directive, Mr. Puiatti filed with this Court a motion for leave to file a supplemental memorandum in support of his motion to vacate sentence. On June 8, 2005, the Court denied Mr. Puiatti s motion for leave to file without reviewing the instant claim. On July 18, 2005, Mr. Puiatti filed a 3.851 motion in the Circuit Court based on the findings of the Court-Appointed Experts and the recent decisions of the United States Supreme Court in Wiggins and Rompilla. The Circuit Court denied Mr. Puiatti s 3.851 motion on September 7, 2005 and held that (1) neither Wiggins nor Rompilla amounts to new law as contemplated by Witt v. State; and (2) the findings revealed in the Court-Appointed Expert Reports did not constitute newly discovered evidence because they were facts that were not unknown to NY1:\1391179\01\TTFV01!.DOC\99995.0469 4
the movant and, while forming a proper basis for a timely ineffective assistance of counsel claim, is not the proper subject of an untimely and successive motion for post-conviction relief. (PC-R 289). The instant appeal followed. Petitioner s appeal of the Circuit Court s denial of his successive motion for post-conviction relief is not more of the same, as suggested by the State. See Answer at 25 ( [A]ll of the affidavits submitted in connection with this appeal are the same affidavits presented to and considered by this Court when this Court affirmed the denial of Mr. Puiatti s first motion to vacate ). The motion and subsequent appeal were, in fact, based on the findings of three new expert witnesses, two of whom had been appointed by the court. 2 In any event, the State s characterization misses the point. All of the affidavits submitted in connection with these proceedings, including affidavits that had previously been presented to and considered by this Court are entitled to new weight in light of the Supreme Court s decision in Wiggins and Rompilla. 2 The State also attempts to obfuscate the true issues presented in this appeal by discussing at length the experts conclusions that Mr. Puiatti is not retarded, as that term is defined by Fla. R. Crim. P. 3.203. Petitioner does not dispute this finding. In fact, upon reviewing the findings and conclusions of the Court-Appointed Expert Reports, Petition withdrew his Atkins claim. NY1:\1391179\01\TTFV01!.DOC\99995.0469 5
II. PETITIONER IS NOT PROCEDURALLY BARRED FROM SEEKING RELIEF AT THIS POINT In its Answer, the State argues that Mr. Puiatti is procedurally barred from seeking post-conviction relief at this time because (1) neither Wiggins nor Rompilla constitute new law but merely involve application of the standard articulated in Strickland v. Washington and (2) that Petitioner is unable to meet the requirements of entitlement to retroactive benefits under Witt v. State. Answer at 12, 29. Contrary to the Circuit Court s decision, Mr. Puiatti s motion was timely because the fundamental constitutional right asserted -- to have his trial counsel investigate and present all reasonably available mitigating evidence -- was not established within the period provided for in Fla. R. Crim. P. 3.851. Although the Supreme Court s recent pronouncements in Rompilla and Wiggins -- decided thirteen years after Mr. Puiatti filed his last post-conviction motion in this Court -- may have involved the application of the standard pronounced originally in Strickland, they established new law with respect to the Florida courts treatment of child abuse as a form of mitigation and the consequences of trial counsel s NY1:\1391179\01\TTFV01!.DOC\99995.0469 6
failure to either discover or present adequate expert testimony on the prolonged effects of such child abuse. 3 The decisions of the U.S. Supreme Court in Wiggins v. Smith, 539 U.S. 510 (2003) and Rompilla v. Beard, 125 S. Ct. 2456 (2005) make clear that the Florida state courts have not properly interpreted the holding of Strickland v. Washington, 466 U.S. 668 (1984) with respect to ineffective assistance of counsel claims. Under Strickland, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Strickland, 466 U.S. at 691. The Supreme Court s pronouncements in Wiggins and Rompilla hold that mitigation must be investigated in a capital case before an attorney turns to some other line of defense and the court must evaluate the totality of the evidence -- both that adduced at trial, and the evidence adduced in the habeas proceedings -- to determine whether counsel exercised reasonable professional judgment in making that determination. Wiggins, 539 U.S. at 525, 536 (citation omitted). 3 Florida courts have, on other occasions, acknowledged that their interpretation of federal precedent with respect to ineffective assistance of counsel claims was in error. See, e.g., Stephens v. State, 748 So. 2d 1028, 1029 (Fla. 1999) ( We find that we must recede from our decision in Grossman and adhere to our prior decision in Rose, which is consistent with the precedent of the United States Supreme Court and other federal courts on the standard of review for Sixth Amendment ineffective assistance of counsel claims. ). NY1:\1391179\01\TTFV01!.DOC\99995.0469 7
The improper application of Strickland is demonstrated by the denial of Petitioner s first 3.850 motion. This Court affirmed the Circuit Court s denial of relief under Rule 3.850 in 1991, prior to the U.S. Supreme Court s decisions in Wiggins, and Rompilla and prior to its Order directing that Mr. Puiatti be examined by court-appointed medical professionals. See Puiatti v. Dugger, 589 So. 2d 231 (Fla. 1991). The Court noted specifically that one of the issues that merit[ed] discussion was the assertion that defense counsel was ineffective for failing to properly investigate and present mitigating circumstances. Id. at 233. In affirming the trial court, the Court reasoned that, [a]lthough all possible background information on Mr. Puiatti may not have been discovered, it is apparent that this attorney presented substantial evidence on his behalf during the penalty phase. Id. at 234 (emphasis added). The Supreme Court has now made clear that presenting substantial evidence is not sufficient -- particularly where, as here, the omitted evidence concerns severe physical abuse, cognitive impairments and substance abuse. See Rompilla 125 S. Ct. at 2463, 2468 (finding that, despite having interviewed family members and obtained reports from three mental health experts, the court had unreasonably failed to investigate mitigating evidence related to defendant s childhood, court file, mental health and other disorders, including a history of dependence on alcohol that might have extenuating significance and NY1:\1391179\01\TTFV01!.DOC\99995.0469 8
test scores showing a third grade level of cognition after nine years of schooling ). III. PETITIONER IS ENTITLED TO RETROACTIVE APPLICATION UNDER WITT V. STATE Contrary to the State s assertions, Mr. Puiatti s claim would be entitled to retroactive application under Witt v. State, 387 So. 2d 922 (Fla. 1980). Under Witt, a change in law supports post-conviction relief in a capital case when it (a) emanated from... the United Stated Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance. Id. at 931. The United States Supreme Court s decisions in Wiggins and Rompilla implicate a fundamental right indeed, a constitutionally protected right to provide the jury with the mitigating evidence that his trial counsel either failed to discover or failed to offer, regardless of the strength of the state s case, the heinous nature of the office or the severity of the aggravators. Williams v. Taylor, 529 U.S. 362, 393 (2000). The first two criteria obviously are met here. To determine what constitutes a development of fundamental significance, Witt envisions changes of law which are of sufficient magnitude to necessitate retroactive application as ascertained by the three-fold test of Stovall and Linkletter, adding that Gideon v. Wainwright... is the prime example of a law change included within this category. 387 So. 2d at 929. The three-fold NY1:\1391179\01\TTFV01!.DOC\99995.0469 9
Stovall-Linkletter test considers: (a) the purpose to be served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect on the administration of justice of a retroactive application of the new rule. Witt, 387 So. 2d at 926 (citations omitted). Any change of law that constitutes a development of fundamental significance is bound to have a broadly unsettling effect on the administration of justice and to upset a measure of reliance on the old rule. Id. at 926, 931. With respect to the first Stovall-Linkletter prong, the new rule should reflect a fundamental and constitutional law change[ ] which cast[s] serious doubt on the veracity or integrity of the original trial proceeding. Id. at 929. The Wiggins Rompilla rule is precisely such a fundamental constitutional change. See Rompilla, 125 S. Ct. at 2462-63 (finding that counsel provided ineffective assistance despite interviewing five members of [defendants ] family in a detailed manner and examining reports by three mental health witnesses who were asked to look into [defendant s] mental state as of the time of the offense and his competency to stand trial ). Here, had the jury been confronted with this considerable mitigating evidence, there is a reasonable probability that it would have returned with a different sentence. Wiggins, 539 U.S. at 536. NY1:\1391179\01\TTFV01!.DOC\99995.0469 10
IV. TRIAL COUNSEL CONDUCTED AN INADEQUATE INVESTIGATION The State claims that trial counsel did not fail to present a mitigation case (Answer at 21) because they introduced the testimony of two mental health experts who examined Mr. Puiatti and opined that he had a dysfunction to the right hemisphere of his brain ; that if he was under stress at the time of the crime he would be more easily affected and more easily dominated by another and that, while he might appreciate the criminality of what he was doing, he couldn t control what he was doing. Answer at 22. Under Wiggins and Rompilla, such purported mitigation testimony is constitutionally inadequate where trial counsel entirely overlooked significant evidence of child abuse that was essential to explain and corroborate the opinion rendered by the mental health experts, including Dr. Delbeato. As in Wiggins and Rompilla, the testimony presented by trial counsel here revealed nothing... of petitioner s life history... counsel s decision to hire a psychologist sheds no light on the extent of their investigation into [their client s] social background. Wiggins, 539 U.S. at 523, 532. See also Rompilla, 125 S. Ct. at 2462-63 (finding that counsel provided ineffective assistance despite interviewing five members of defendants family in a detailed manner and examining reports by three mental health witnesses who were asked to look into NY1:\1391179\01\TTFV01!.DOC\99995.0469 11
[defendant s] mental state as of the time of the offense and his competency to stand trial ). Although Dr. Delbeato and Dr. Meadows testified to some of the characteristics of his mental illness, they did not incorporate into their diagnosis the unique and debilitating effects of this condition on Mr. Puiatti s emotional and mental functioning at the time of the crime and were unable to provide an adequate assessment of Mr. Puiatti s state of mind, ability to form intent, independence and susceptibility to influence. In Rompilla, the Court found that defense counsel -- despite having interviewed family members and obtained reports from three mental health experts -- had unreasonably failed to investigate mitigating evidence related to defendant s childhood, court file, mental health and other disorders, including a history of dependence on alcohol that might have extenuating significance and test scores showing a third grade level of cognition after nine years of schooling. 125 S. Ct. at 2463, 2468. The court found that this cumulative evidence would have destroyed the benign conception of [defendant s] upbringing and mental capacity defense counsel had formed from talking with [defendant] himself and some of his family members, and from the reports of the mental health experts. With this information, counsel would have become skeptical of the impression given by the five family members and would unquestionably have gone further to build a mitigation case. Further effort would presumably have unearthed much of the material postconviction counsel found, including testimony from several members of NY1:\1391179\01\TTFV01!.DOC\99995.0469 12
[defendant s] family, whom trial counsel did not interview. Id. at 2468. As in Rompilla, Mr. Puiatti s trial counsel did not look for evidence of a history of dependence on alcohol that might have extenuating significance nor did they discover that, like Rompilla s father, Mr. Puiatti was exposed to severe and prolonged physical abuse by his father. This type of evidence would have destroyed the benign conception of Mr. Puiatti s upbringing and mental capacity that defense counsel presented to the jury. Nor did Mr. Puiatti s trial counsel retain a forensic social worker to prepare a social history to build an adequate mitigation case; instead, they decided to focus their efforts on retrying the factual case and disputing [Puiatti s] direct responsibility for the murder -- a failure that was the result of inattention, not reasoned strategic judgment. Wiggins, 539 U.S. at 517, 534. The Court-Appointed Expert reports reveal the nature and extent of the physical and emotional abuse endured by Mr. Puiatti, as well as his chronic substance abuse. Specifically, the Greenberg Report revealed that he (i) was subjected to subjected to severe, arbitrary and prolonged physical child abuse, along with severe verbal abuse by his parents; (ii) has a history of very severe substance abuse ; (iii) has a Personality Disorder ; (iv) that his home life was a private hell and [he] was little more than a punching bag for his parents ; and NY1:\1391179\01\TTFV01!.DOC\99995.0469 13
that (v) these factors, alone or in concert, could have produced neuropsychological impairment. Dr. Greenberg concluded that child abuse is the most important origin of Mr. Puiatti s rumination as an individual and ultimate descent into criminal behavior. Greenberg Report at 10-11. Dr. Rosen emphasized that, Mr. Puiatti s psychosocial history is significant for having been the victim of physical abuse perpetrated upon him primarily by his father although his mother had also repeatedly at times been abusive. (PC-R 48). He further noted that his nonviolent history and abusive childhood were confirmed by a number of individuals in affidavits as well as claims that at the time of his arrest he had been experiencing significant grief due to losses in his life including the loss of his infant. Id. Significantly, the Rosen Report revealed how trial counsel s inexperience and inadequate preparation undermined the testimony of the mental health experts. For example, Dr. Rosen cited Dr. Delbeato s affidavit, which indicated that defendant s inability to control his behavior was partly attributable to drug-related brain damage... and the effect of drug withdrawal. Id. at 48. Despite this medical conclusion, the Court found that both the chronological ages and the emotional ages of each of these defendants are mature enough as to not be a relevant mitigating factor. Id. The Court reasoned that the opinions of these two psychologists and this psychiatrist about the functional age of these defendants NY1:\1391179\01\TTFV01!.DOC\99995.0469 14
are inconsistent with the other evidence in this case and therefore lack credibility. Id. (quoting Findings in Support of Sentences). Here, the other evidence refers to Ms. Garrett s portrayal of Mr. Puiatti s as coming from a loving and supportive home; information the State used as an aggravating factor. Dr. Mills, a forensic psychiatrist, also conducted a psychiatric evaluation of Mr. Puiatti in February 2005. ( Mills Report ; PC-R 68-213) Dr. Mills concluded that the concurrence of trial-naïve counsel and limited psychiatric history (and psychological assessment) resulted in testimony that was shockingly incomplete and remarkably unhelpful. Id. at 80. Dr. Mills was struck not only by the dramatic and (at least in retrospect) unprofessional lack of explanation of Mr. Puiatti s substance abuse and underlying parental abuse, but also by the lack of testimony about how the crimes at trial were completely out of Mr. Puiatti s character. Such testimony was irrefutable and would have been probative on the issues of his compliance with Mr. Glock s directives. Id. The Mills Report sets forth the following: (1) at a very young age, Mr. Puiatti was regularly (sometimes daily and almost always more than weekly) punched in the head and everywhere else, kicked, spat upon, yelled at and generally (and thoroughly) humiliated (Id. at 69-70); and (2) to retreat from this trauma as a young teenager, he abused alcohol and marijuana on a daily basis and supplemented that consumption with almost every available street drug, including NY1:\1391179\01\TTFV01!.DOC\99995.0469 15
amphetamine, methamphetamine, acid (LSD), cocaine, heroine, and numerous downers. Dr. Mills notes, in thirty years of psychiatric practice, he has encountered no individual who had consumed so many different drugs at such an early age. Id. at 73. This evidence is new; it is not as the State claims, merely a rehash of trial testimony or cumulative of other psychiatric evidence. Even though there was some evidence of substance abuse presented at trial, there was no evidence of the severe physical abuse that was inflicted by his parents beginning at a young age. No explanation was given at trial for Mr. Puiatti s substance addiction. Had counsel inquired, she would have learned that it began at age thirteen, in response to, among other things, the severe physical abuse he was subjected to starting at age four or five. Nor were the consequences of such abuse on Mr. Puiatti s brain development, cognitive and emotional development, including the long term effects of such substance abuse on maturation, judgment and impulse control, adequately addressed. Mr. Puiatti s intoxication at the time of the crime, his history of abuse and its combined consequences on his psychological and social maturity may have made his acquiescence to the directives of his codefendant much more understandable -- the key defense mounted by his trial counsel. Counsel never tied this evidence together, connected the dots or NY1:\1391179\01\TTFV01!.DOC\99995.0469 16
presented this to the jury as mitigating factors that weigh heavily against a death sentence. The Expert Reports make clear that the decision to conduct no further investigation of Mr. Puiatti s family, friends and neighbors and subsequent decision to forgo presenting this defense amounted to constitutionally deficient representation. Under Wiggins and Rompilla, the Court s previous finding that trial counsel presented substantial evidence of substance abuse (but not physical abuse by his parents) is simply not constitutionally sufficient where, as here, counsel overlooked significant evidence of child abuse. Puiatti, 589 So. 2d at 234. Counsel s failure to investigate deprived the penalty phase jury and judge of critical family background information that supported the diagnosis of the mental health experts and which was essential to an accurate understanding of Mr. Puiatti as an individual and to the circumstances of the crime. NY1:\1391179\01\TTFV01!.DOC\99995.0469 17
CONCLUSION AND RELIEF SOUGHT The foregoing authority, the trial record, and the attached appendices demonstrate that Carl Puiatti is entitled to an evidentiary hearing at which it will be conclusively established that Rule 3.851 relief is warranted in light of the substantial constitutional claims raised herein. Mr. Puiatti, therefore, respectfully requests: 1. That the sentence of death be vacated; and 2. All other and further relief which the Court may deem just and proper. Respectfully submitted this 13th day of May, 2006. /s/ Steven Alan Reiss Steven Alan Reiss (admitted pro hac vice) Miranda S. Schiller Erin J. Law Joanna Varon Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, New York 10153 Counsel for Carl Puiatti NY1:\1391179\01\TTFV01!.DOC\99995.0469 18
CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 13th day of May I caused a true and correct copy of the foregoing to be delivered by mail to the attached service list. WEIL, GOTSHAL & MANGES LLP By: /s/ Joanna R. Varon
CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the memorandum complies with the font requirements of Florida Rule of Appellate Procedure 9.210 and is submitted in Times New Roman 14-point font. WEIL, GOTSHAL & MANGES LLP By: /s/ Joanna R. Varon
SERVICE LIST Robert Landry, Esq. Office of the Attorney General Capital Appeals Division Concourse Center 4 3507 East Frontage Road Suite 200 Tampa, FL 33607 Phil Van Allen Assistant State Attorney 38053 Live Oak Avenue Dade City, FL 33523