Micah Louis Nelson v. State of Florida (SC08-589)

SUMMARY: 7-0 Decision. Per Curiam Opinion. Mr. Nelson tried to have his first-degree murder convication and sentence of death vacated pursuant to Fla. R. Crim. P. 3.851. Mr. Nelson alleged, inter alia, that his trial counsel was ineffective. The circuit court denied post-conviction relief. Mr. Nelson appeals the circuit court's ruling and petitions the Court for a writ of habeas corpus. The Court affirmed the circuit court and denied the petition for writ of habeas corpus.

Editor's Note: The facts of this murder are particularly gruesome. The facts are included in the Court's opinion but have been excluded from this blog post.

Micah Louis Nelson appeals an order of the circuit court denying his motion to vacate his conviction of first-degree murder and sentence of death filed under Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained below, we affirm the postconviction court‘s order and deny the petition for a writ of habeas corpus.

Nelson asserts the following four claims in his motion for postconviction relief regarding ineffective assistance of counsel: (1) trial counsel was ineffective by failing to move for a determination of competency; (2) trial counsel was ineffective by failing to call a witness in both the guilt and penalty phases of the trial to establish that Nelson lacked mens rea and to establish statutory mental mitigation in the penalty phase; (3) trial counsel was ineffective in the investigation and preparation of the penalty phase for failing to call a witness to establish statutory mitigation in the penalty phase; and (4) trial counsel was ineffective for failing to request that the court instruct the jury on statutory mitigation in the sentencing phase of Nelson‘s trial. As explained below, we affirm the trial court‘s denial of relief on all ineffective assistance of counsel claims raised by Nelson.

Failure to Move for a Competency Determination

In Futch v. Dugger, 874 F.2d 1483 (11th Cir. 1989), the United States Court of Appeals for the Eleventh Circuit considered an ineffective assistance claim regarding trial counsel‘s failure to determine the petitioner‘s competency to stand trial. Id. at 1486. The court stated, ―In order to demonstrate prejudice from counsel‘s failure to investigate his competency, a petitioner has to show that there exists ‗at least a reasonable probability that a psychological evaluation would have revealed that he was incompetent to stand trial.‘ ‖ Id. at 1487 (quoting Alexander v. Dugger, 841 F.2d 371, 375 (11th Cir. 1988)). Here, the record demonstrates that Nelson‘s trial counsel were experienced in handling capital cases and deemed Nelson competent to proceed based on Dr. Dee‘s evaluation and through their own contacts with Nelson. Trial counsel indicated during the evidentiary hearing that, based on face-to-face dealings with Nelson, it was never deemed necessary to move for a competency determination. Trial counsel also indicated that they would have filed a motion for a competency determination if Dr. Dee had clearly indicated that Nelson was incompetent. In addition, once the court ordered a competency determination, Nelson was found to be competent and capable of assisting his attorneys. Nelson‘s reliance on Dr. Dee‘s testimony that Nelson was ―marginally competent‖ appears to be misplaced because neither the allegation nor the record demonstrates that Dr. Dee ever deemed Nelson incompetent to proceed. Further, nothing in the record indicates that Nelson was incompetent at the time of trial or at the time of the murder.

Failure to Call Dr. Ashby

Regarding trial counsel‘s failure to call Dr. Ashby during the guilt phase of trial, Nelson relies on Bunney v. State, 603 So. 2d 1270 (Fla. 1992), where we considered whether it was error for the trial court to refuse to allow testimony concerning the defendant‘s alleged epileptic condition absent a plea of insanity. Id. at 1271. We reasoned that ―while evidence of diminished capacity is too potentially misleading to be permitted routinely in the guilt phase of criminal trials, evidence of ‗intoxication, medication, epilepsy, infancy, or senility‘ is not,‖ and held that ―evidence of certain commonly understood conditions that are beyond one‘s control . . . should also be admissible.‖ Id. at 1273. Nelson argues that his psychosis is a condition beyond his control, which was thus admissible. However, Nelson‘s reliance on Bunney is misplaced. Our precedent has firmly established the inadmissibility of evidence relating to mental capacity absent an insanity plea. See, e.g., Everett v. State, 97 So. 2d 241, 245-46 (Fla. 1957) (trial court did not err in refusing to give an instruction that the defendant‘s mental condition could be considered by the jury in deciding whether he was capable of forming a premeditated design even though he was not found insane); Ezzell v. State, 88 So. 2d 280, 282 (Fla. 1956) (―Since the plea of insanity was out and there was no defense based on mental defects less than insanity, there was no reason for . . . testimony or to labor the question.‖). In Chestnut v. State, 538 So. 2d 820 (Fla. 1989), we squarely addressed the admissibility of mental defects where the defendant does not raise an insanity defense. Id. at 820. Ultimately, we explained:

If [alleged] mental deficiencies are sufficient to meet the definition of insanity, these persons should be acquitted on that ground and treated for their disease. Persons with less serious mental deficiencies should be held accountable for their crimes just as everyone else. If mitigation is appropriate, it may be accomplished through sentencing, but to adopt a rule which creates an opportunity for such persons to obtain immediate freedom to prey on the public once again is unwise. Id. at 825. Therefore, because Nelson did not raise an insanity defense, counsel cannot be found deficient for failing to call Dr. Ashby in the guilt phase.

Failure to Call a Witness to Evaluate Dr. Kremper’s Reports

We confronted this issue in Sexton v. State, 997 So. 2d 1073 (Fla. 2008), where we considered whether trial counsel was deficient for choosing not to present testimony from Dr. Maher that the defendant had a history of bizarre

sexual and criminal behavior. Id. at 1082-84. Trial counsel‘s theory was to demonstrate brain damage as documented by a PET scan instead of behavior that ―would be so inflammatory to the jury that it would counteract any possible mitigation.‖ Id. at 1084. Trial counsel reasoned that ―Dr. Maher‘s description of Sexton as a sadistic sexual psychopath, if heard by the jury, would be ‗tantamount to stipulating to death.‘ ‖ Id. We affirmed the postconviction court‘s order denying relief on this claim, finding that penalty phase counsel had made an informed strategic decision and that Sexton failed to demonstrate that counsel was deficient. Id. at 1085. Also, in Willacy v. State, 967 So. 2d 131 (Fla. 2007), we confronted a similar issue where we considered whether it was ineffective assistance for counsel to avoid presenting evidence that the defendant was a sociopath. Id. at 143. We found that the postconviction court‘s finding was supported by competent, substantial evidence and that counsel made a reasonable strategic choice, after investigation, to forego presentation of negative mitigating evidence. Id. at 144. We held that Willacy ―[had] not shown prejudice because presenting [the] mitigating evidence would likely have been more harmful than helpful.‘ Id. (quoting Evans v. State, 946 So. 2d 1, 13 (Fla. 2006)).

As illustrated, it is reasonable for trial counsel to forego evidence that, if presented in mitigation, could damage a defendant‘s chances with the jury.

Further, as we stated in Stephens v. State, 975 So. 2d 405 (Fla. 2007), ―[B]eing able to secure an expert witness to provide an opinion as to mental health mitigation during postconviction proceedings, which arguably could have been helpful . . . does not, in and of itself, render trial counsel‘s performance ineffective.‖ Id. at 415. Thus, trial counsel‘s decision not to present testimony that would have opened the door to Nelson‘s incestuous rape of his minor cousin cannot be deemed deficient. Because Nelson cannot demonstrate deficiency, we need not address whether he was prejudiced.

Trial Counsel’s Failure to Request the Court to Instruct the Jury on Statutory Mitigation in the Sentencing Phase

At the evidentiary hearing, trial counsel was asked whether he had read Bryant v. State, 601 So. 2d 529 (Fla. 1992); Stewart v. State, 588 So. 2d 416 (Fla. 1990); and Smith v. State, 492 So. 2d 1063 (Fla. 1986). Trial counsel testified that he did not recall the cases by their names, but that if they were capital cases, he had probably either read them or read summaries of them. Trial counsel then asked collateral counsel to state what proposition they stood for. The question went unanswered, and collateral counsel moved on to another line of questioning. From this exchange, it does not appear accurate to state that counsel was ignorant of controlling case law. The cases cited establish the right to jury instructions on the statutory mitigating circumstances of extreme mental or emotional disturbance. See, e.g., Bryant, 601 So. 2d at 533 (―We have previously stated that the Defendant is entitled to have the jury instructed on the rules of law applicable to this theory of the defense if there is any evidence to support such instructions.‘ ‖) (quoting Hooper v. State, 476 So. 2d 1253, 1256 (Fla. 1985)). Here, trial counsel testified that he was aware he was entitled to the instructions, but made a strategic decision not to request them, opting instead for the ―catch-all‖ instruction.

Because Nelson has not demonstrated that this decision was based on ignorance of the law as alleged, he is not entitled to relief.

Competency

Nelson next alleges that he was denied substantive due process because he was tried and convicted while mentally incompetent. This issue fails for two reasons. First, the issue is procedurally barred because he failed to raise it on direct appeal. Second, the record establishes that Nelson was competent at the time of the trial.

Pate Claim

Next, Nelson argues that the trial court erred by failing to sua sponte order a competency hearing. Pate v. Robinson, 383 U.S. 375 (1966), held that once the question of competency is raised, there is a constitutional entitlement to a hearing on the issue of competency. Also, Pate established a rebuttable presumption of incompetency upon a showing that the trial court failed to hold a competency hearing despite information raising a bona fide doubt as to the petitioner‘s competency. See James, 957 F.2d at 1570. However, Pate claims ―can and must

be raised on direct appeal.‖ Id. at 1572. Accordingly, this claim is procedurally barred because Nelson raised no such claim in his direct appeal.

HABEAS PETITION

We deny several of Nelson‘s claims without further discussion. First, we deny Nelson‘s claims that section 921.141, Florida Statutes (1997), is facially vague and overbroad and that the Florida death sentencing statute is unconstitutional as applied because they were not raised on direct appeal and are procedurally barred. Breedlove v. Singletary, 595 So. 2d 8, 10 (Fla. 1992) (―Habeas corpus is not a second appeal and cannot be used to litigate or relitigate issues which could have been . . . or were raised on direct appeal.‖). We also deny

Nelson‘s competency claims because they are not ripe for review and were raised solely for preservation purposes. See State v. Coney, 845 So. 2d 120, 137 n.19 (Fla. 2003) (rejecting a claim that defendant was incompetent to be executed where he acknowledged that the claim was not yet ripe and was being raised only for preservation purposes). Nelson‘s claim that trial counsel was ineffective is denied because ineffective assistance of trial counsel is not cognizable in habeas corpus. Griffin v. State, 976 So. 2d 107, 108 (Fla. 3d DCA 2008) (―Habeas corpus is . . . the improper vehicle to address . . . the performance of trial counsel.‖). Finally, Nelson‘s claim that appellate counsel was ineffective for failing to raise a claim of cumulative effect of multiple errors and his claim that Florida‘s capital sentencing statute is unconstitutional on its face and as applied are each denied for lack of merit. Nelson‘s claim of cumulative effect is likewise without merit because each individual claim is without merit. See Griffin v. State, 866 So. 2d 1, 22 (Fla. 2003) (―[W]here individual claims of error alleged are either procedurally barred or without merit, the claim of cumulative error must fail.‖). Nelson‘s claim that Florida‘s capital sentencing statute is unconstitutional is without merit because we have previously found this claim to be without merit. See, e.g., Hudson v. State, 992 So. 2d 96, 118 (Fla. 2008).

We now address Nelson‘s remaining claim that appellate counsel was ineffective for failing to raise the claim that the evidence was insufficient to prove

the avoid arrest aggravator. For the reasons set forth below, Nelson is not entitled to habeas relief on this claim.

Unlike a claim of ineffective assistance of trial counsel, ineffective assistance of appellate counsel is cognizable in habeas corpus. See Rutherford v. Moore, 774 So. 2d 637 (Fla. 2000); Freeman v. State, 761 So. 2d 1055, 1069 (Fla. 2000).

Here, Nelson‘s complaints stem from the avoid arrest aggravator, which this court upheld because Nelson failed to preserve the issue for appeal. Nelson, 850 So. 2d at 525. However, the Court also discussed the merits of the claim, finding that ―Nelson expressly agreed with the police when they asked him if he killed Brace because he felt like she could identify him.‖ Id. at 526. Further, the Court found:

Although Nelson's admissions to police alone support his intentional elimination of Brace as a witness, other considerations also support the avoid arrest aggravator in this case. . . . The evidence in this case indicates that Nelson probably could have accomplished the burglary of Brace's home and sexual battery without killing her since Brace likely posed little physical resistance to Nelson: she was 78 years old; she was awakened from her bed in the middle of the night when she was wearing only a nightgown; and at that time her eyeglasses and hearing aids were on her night stand. Further, Nelson easily obtained access to her car. Therefore, it appears that once Nelson immobilized Brace by putting her in the trunk, he secured an uncontested getaway and there was no reason for him to kill her except to eliminate her as a witness.

Nelson's act of taking Brace to a remote area to kill her also lends support to the finding of the avoid arrest aggravator in this case. The evidence at trial was that Nelson drove to an isolated orange grove to kill Brace, but his plan was stymied when the car became stuck in the sand and he needed the assistance of other people to extricate the car. Nelson then drove to another orange grove where he killed Brace. The record reflects that Nelson's journey to two different orange groves was intended to find an isolated place to kill Brace, the sole witness to his crimes. We find no error in the trial court's finding of the avoid arrest aggravator because the defendant's own statements and actions corroborate evidence that the sole or dominant murder motive in this case was to silence Brace as the sole witness against him.

Nelson, 850 So. 2d at 526 (citations omitted).

Accordingly, Nelson‘s claim must fail because appellate counsel did raise the claim, which this Court rejected as procedurally barred.

For the reasons stated above, we affirm the postconviction court's order denying Nelson‘s rule 3.851 motion, and we deny his petition for writ of habeas corpus.