FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
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,
Jo Bondi, Attorney General, Carine L. Mitz, Assistant
Attorney General, and Robert James Morris, III, Assistant
Attorney General, Tallahassee, Florida, for Appellee.
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).
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.
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. Ultimately, the trial court sentenced
Durousseau to death. Id. at 550. On December 9,
2010, this Court rejected all of Durousseau's
claims on direct appeal. Id. at 564,
cert. denied, 132 S.Ct. 149 (2011).
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.
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. We then hold that Durousseau's death
sentence is unconstitutional under Hurst v. Florida.
Assistance of Counsel
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.
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.
[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 ...