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Durousseau v. State

Supreme Court of Florida

January 31, 2017



         An Appeal from the Circuit Court in and for Duval County, Jack Marvin Schemer, Judge - Case No. 162003CF010182AXXXMA.

          Richard Adam Sichta of The Sichta Firm, LLC, Jacksonville, Florida; and Billy Horatio Nolas, Chief, Capital Habeas Unit, Office of the Federal Public Defender, Tallahassee, Florida, for Appellant.

          Pamela Jo Bondi, Attorney General, Carine L. Mitz, Assistant Attorney General, and Robert James Morris, III, Assistant Attorney General, Tallahassee, Florida, for Appellee.

          PER CURIAM.

         Paul Durousseau appeals an order of the Fourth Judicial Circuit Court denying his motion to vacate his conviction of first-degree murder and sentence of death, filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons discussed below, we affirm the circuit court's denial of postconviction relief but vacate Durousseau's sentences and remand for resentencing in light of Hurst v. Florida, 136 S.Ct. 616 (2016), as interpreted by Hurst v. State (Hurst), 202 So.3d 40 (Fla. 2016).


         We discussed the facts of this case in our opinion on direct appeal. See Durousseau v. State, 55 So.3d 543, 548-50 (Fla. 2010). Paul Durousseau was sentenced to death for the murder of Tyresa Mack. In 1999, Mack's sister and stepfather found Mack's body in her apartment. She was naked from the waist down, and a white cord was wrapped around her neck. Durousseau's DNA was found inside Mack's vagina. In 2003, Durousseau was indicted on five counts of first-degree murder for the deaths of five women. The similar methodology of the crimes caused investigators to conclude that Mack was one of Durousseau's victims. Durousseau was arrested for Mack's murder.

         In 2007, Durousseau was found guilty of the first-degree murder of Mack. After the penalty phase, the jury voted ten to two to impose a death sentence. The trial court found four aggravating factors: (1) Durousseau was previously convicted of a felony involving the use or threat of violence; (2) the murder was committed while the defendant was engaged in the commission of a robbery or sexual battery; (3) the murder was committed for pecuniary gain; and (4) the murder was especially heinous, atrocious, or cruel. The trial court did not find any statutory mitigating circumstances, but it did find sixteen nonstatutory mitigating circumstances.[1] Ultimately, the trial court sentenced Durousseau to death. Id. at 550. On December 9, 2010, this Court rejected all of Durousseau's claims[2] on direct appeal. Id. at 564, cert. denied, 132 S.Ct. 149 (2011).

         On October 1, 2012, Durousseau filed a motion for postconviction relief in the circuit court. Durousseau raised two claims in his postconviction motion: (1) that counsel was ineffective for failing to request additional physical and psychiatric testing; and (2) that counsel was ineffective for failing to conduct a meaningful voir dire. However, before the evidentiary hearing, Durousseau abandoned his first claim. On April 9, 2015, the postconviction court began an evidentiary hearing that lasted two days. Ultimately, the postconviction court denied Durousseau's claim that counsel had failed to secure additional physical and mental testing. Durousseau appealed to this Court, arguing that trial counsel was ineffective because she failed to conduct meaningful voir dire. While his appeal was pending in this Court, the United States Supreme Court decided Hurst v. Florida, 136 S.Ct. 616 (2016), holding that Florida's death penalty sentencing statute violated the Sixth Amendment. In light of Hurst v. Florida, Durousseau filed supplemental briefing, arguing that his death sentence should be vacated.


         Durousseau alleges that (1) his counsel was ineffective during voir dire, and (2) his death sentence violates Hurst v. Florida. We first reject Durousseau's claim that his trial counsel, Ann Finnell, was ineffective during voir dire.[3] We then hold that Durousseau's death sentence is unconstitutional under Hurst v. Florida.

         Ineffective Assistance of Counsel

         First, Durousseau argues that Finnell was ineffective for asking more collective questions than individual questions. Second, Durousseau argues that the postconviction court erred in finding that Finnell was not ineffective for failing to inquire further of, and move to strike, two specific jurors and one alternate juror. We reject both arguments.

         In accordance with Strickland v. Washington, 466 U.S. 668 (1984), we review claims of ineffective assistance of counsel as follows:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined.

Long v. State, 118 So.3d 798, 805 (Fla. 2013) (quoting Bolin v. State, 41 So.3d 151, 155 (Fla. 2010)). Additionally,

[t]here is a strong presumption that trial counsel's performance was not deficient. See Strickland, 466 U.S. at 690. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. The defendant carries the burden to "overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). "Judicial scrutiny of counsel's performance must be highly deferential." Id. "[S]trategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel's decision was reasonable under the norms of professional conduct." Occhicone v. State, 768 So.2d 1037, 1048 (Fla. 2000). Furthermore, where this Court previously has rejected a substantive claim on the merits, counsel cannot be deemed ineffective for failing to make a meritless argument. Melendez v. State, 612 So.2d 1366, 1369 (Fla. 1992).
In demonstrating prejudice, the defendant must show a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine ...

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