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Bevel v. State

Supreme Court of Florida

June 15, 2017

THOMAS BEVEL, Appellant,
v.
STATE OF FLORIDA, Appellee. THOMAS BEVEL, Petitioner,
v.
JULIE L. JONES, etc., Respondent.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED

         An Appeal from the Circuit Court in and for Duval County, John Bradford Stetson, Judge - Case No. 162004CF004525AXXXMA And an Original Proceeding - Habeas Corpus

          Frank Tassone of Tassone & Dreicer, LLC, Jacksonville. Florida; and Rick A. Sichta, Susanne K. Sichta, and Joe Hamrick of The Sichta Firm, LLC., Jacksonville, Florida, for Appellant/Petitioner

          Pamela Jo Bondi, Attorney General, and Carine L. Mitz, Assistant Attorney General, Tallahassee, Florida, for Appellee/Respondent

          Stephen K. Harper, Clinical Professor, Death Penalty Clinic, Florida International University College of Law, Miami, Florida; and Stuart L. Hartstone, Acting Executive Director, Florida Capital Resource Center, Miami, Florida, for Amici Curiae The Florida Capital Resource Center and The Death Penalty Clinic at Florida International University College of Law

          Robert C. Josefsberg of Podhurst Orseck, P.A., Miami, Florida; Robert G. Kerrigan of Kerrigan, Estess, Rankin, McLeod & Thompson, LLP, Pensacola, Florida; Karen M. Gottlieb of Florida Center for Capital Representation, Miami, Florida; and Sonya Rudenstine, Gainesville, Florida, for Amici Curiae Justice Harry Lee Anstead, Judge Rosemary Barkett, Martha Barnett, Talbot D'Alemberte, Hank Coxe, Justice Gerald Kogan, Florida Association of Criminal Defense Lawyers, Florida Capital Resource Center, and Florida Center for Capital Representation

          PER CURIAM.

         In this appeal from the denial of an initial motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851, death-sentenced prisoner Thomas Bevel raises the sole claim that his attorney provided constitutionally ineffective assistance during the penalty phase of his capital murder trial. Bevel also raises, in an accompanying petition for a writ of habeas corpus, a claim of ineffective assistance of appellate counsel for not presenting an issue on direct appeal pertaining to allegedly improper prosecutorial comments. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const. For the reasons explained in this opinion, we deny the habeas petition, but reverse the postconviction court's order denying Bevel's motion for postconviction relief, vacate Bevel's death sentences, and remand for a new penalty phase proceeding.

         I. FACTS AND PROCEDURAL HISTORY

         The facts of Bevel's crimes were set forth in this Court's opinion affirming the convictions and sentences on direct appeal:

Thomas Bevel was charged with the February 2004 first-degree murders of Garrick Stringfield and his son Phillip Sims and attempted first-degree murder of Feletta Smith.
The key events of February 28, 2004, which ended in two murders and one attempted murder, established the following. Thomas Bevel, who was twenty-two years old at the time of the crime, resided with Garrick Stringfield, who was thirty. The two were close friends, such that Stringfield referred to Bevel as "nephew" or "Tom Tom" and Bevel referred to Stringfield as "Unc." On February 28, 2004, both men were at a street parade in Jacksonville where they ran into Feletta Smith, whom they both knew from their childhood. Smith exchanged telephone numbers with Stringfield and made plans to meet later that evening.
After leaving the parade, Bevel and Stringfield purchased a bottle of gin and went back to Stringfield's house later in the evening. Because Stringfield was going out, he asked Bevel to wait for his thirteen-year-old son, Phillip Sims, who was being dropped off by his mother, Sojourner Parker. Although Parker noticed that Stringfield's car was not in the driveway when she arrived at the house, she was unconcerned because Bevel, a person she considered Stringfield's roommate, answered the door and let her son inside.
Around 9 p.m., Stringfield met Smith at a Walgreens store and she followed him back to his house. When they arrived at Stringfield's house, Bevel and Sims were playing video games in the living room where Smith and Stringfield joined them. Although no illegal drugs were being consumed, Smith stated that Bevel and Stringfield were drinking gin out of the bottle and she had a half cup of gin and grapefruit juice. At some point, Smith and Stringfield went into his bedroom to watch television. Stringfield showed Smith an AK-47 rifle that he kept under his bed and, because Smith was scared of it, he handed the gun to Bevel who removed it from the room. Stringfield and Smith remained in the bedroom with the door closed. Smith said that she last saw Sims playing video games in the living room.
Bevel then drove Stringfield's car to a BP gas station to meet his girlfriend, Rohnicka Dumas, took her to a bar where he purchased another bottle of gin, and brought her back to the house. When they returned, Stringfield and Bevel went into the backyard, Dumas went inside, Smith remained in Stringfield's bedroom, and Sims continued to play video games in the living room. Stringfield and Bevel then came back into the house and each had a gun in his possession; Stringfield was carrying a smaller handgun and Bevel had the AK-47 rifle that Stringfield had handed to him earlier in the evening. Bevel and Dumas went into the other bedroom, located across the hall from Stringfield's room, and talked.
Bevel then left the bedroom with the AK-47 rifle in his hand. He went to Stringfield's bedroom, where Smith and Stringfield were lying in bed nearly asleep, knocked on the door and said, "Unc, open the door." Stringfield got up from the bed, unarmed, and opened the door in his pajamas. Bevel immediately shot Stringfield in the head and he instantly fell to the floor in the doorway. Smith began screaming and Bevel yelled, "Bitch, shut up" while he shot her several times as she lay in the bed. Smith became quiet and pretended to be dead. She testified that there was "no doubt in [her] mind" that Bevel was the shooter. Rohnicka Dumas corroborated Smith's testimony. She observed Bevel pick up the rifle, go out into the hallway, knock on Stringfield's bedroom door and say, "Unc, look here." She testified that multiple shots were fired, during which she heard both the woman in the other room screaming and Bevel yell, "Bitch, shut up."
Bevel then went into the living room where Sims was still sitting on the sofa with the television remote in his hand and shot him twice, once grazing his arm and chest and once in the face. Subsequently, Bevel returned to the bedroom where Dumas had been and they walked out the front door. Bevel locked the burglar bar door, a barred security gate located on the outside of the front door to the house, and drove away in Stringfield's car with Dumas sitting in the passenger seat. While driving to Dumas's house, Bevel held the AK-47 rifle under his chin and stated that he did not mean to kill the boy (Sims), but had to because he was going to be a witness. Bevel abandoned Stringfield's car near Dumas's house.
Smith was eventually able to reach 911 by using Stringfield's cell phone. Because Smith was unable to give the police an exact address, it took some time for the police and rescue to find the house. Ultimately, rescuers were able to transport her to the hospital where she stayed for almost a month while undergoing multiple surgeries for various gunshot wounds to her pelvis and upper legs.
After hiding for almost a month, Bevel was finally found by officers from the Jacksonville Sheriff's Office on March 27, 2004. Bevel was informed of his constitutional rights and indicated his understanding of each right by signing the rights form. The police questioned Bevel on two occasions over the course of twenty-four hours. During these two interviews, Bevel gave four different versions of the story but ultimately confessed to the murders.
Although Bevel confessed to murdering Stringfield and Sims, his version of events was contrary to the testimony of both Smith and Dumas. Bevel stated that he and Stringfield had been fighting recently about money that Stringfield believed he was owed and that Bevel feared that Stringfield was going to try and kill him. He said that when he brought Dumas back to the house that night, Stringfield began to get angry, saying that he should have killed Bevel a long time ago. While Dumas and Smith were in opposite bedrooms, the fight escalated until Stringfield was pointing the handgun at Bevel and Bevel had picked up the AK-47 rifle. Then, Stringfield went into his bedroom and, when Bevel heard a clicking noise that sounded like a magazine being loaded into the handgun, Bevel moved towards the room and shot Stringfield when he reached the door. Bevel said the gun went off several times but he did not mean to shoot Smith.
At trial, the State presented the testimony of several forensic and medical experts, who testified regarding the causes of death of Stringfield and Sims and the extensive injuries suffered by Smith. Dr. Jesse Giles, who performed the autopsy of Sims, testified that Sims received a gunshot wound that grazed his chest and exited his arm but that he died as a result of massive trauma due to a gunshot wound to the head. Dr. Aurelian Nicolaescu, who performed the autopsy of Stringfield, testified that he died as a result of a gunshot wound to the head. Both doctors testified that each victim had stippling injuries, which is indicative of being shot at close to intermediate range. The State also presented evidence technicians and crime-scene analysts who discussed bullet fragments, casings, and fingerprints lifted from the scene. In addition, the State introduced the two videotaped interviews with Bevel and letters that Bevel wrote to Dumas from prison, in which he attempted to convince her to change her testimony and lie at trial to save his life.
In his defense, Bevel presented testimony to contradict Smith's version of events. Officer Kenneth Bowen, one of the first officers to arrive at the crime scene, stated that Smith told him that two black males with ski masks committed the crimes. Francis Smith, Smith's mother, stated that she overheard her daughter tell Bevel's brother and his friend in the hospital that the man who committed the murder had on a mask. Finally, Ketrina Bronner, a neighbor of Stringfield, stated that she had a conversation with Smith at a federal courthouse in which Smith said that she did not see who committed the murder.
After the guilt-phase portion of the trial, the jury found Bevel guilty of first-degree murder of Stringfield by discharging a firearm, first-degree murder of Sims by discharging a firearm, and attempted first-degree murder of Smith by discharging a firearm.

Bevel v. State, 983 So.2d 505, 510-12 (Fla. 2008).

         During the penalty phase, the State presented testimony from Detective Kuczkowski, who had investigated a previous armed robbery charge involving Bevel. Id. at 512. After pleading guilty to the lesser-included offense of attempted robbery without a firearm, Bevel was sentenced to one year in county jail for that crime. Id. at 512 n.1. Within a year of being released, Bevel committed the murders at issue in this case. Id.

         The State also presented penalty phase testimony from Detective Dingee, "who recounted Bevel's confession that he killed Sims because he would have been a witness." Id. at 512. In addition to offering three victim-impact statements as further evidence, "the State played the portion of the videotape in which Bevel stated that he killed Sims because he knew who Bevel was and would tell Stringfield's brother that he killed Stringfield." Id.

         This Court summarized the evidence presented by Bevel during the penalty phase as follows:

In defense, Bevel presented the testimony of several family members who described Bevel's poor childhood, the physical abuse he suffered and witnessed at the hands of his mother's boyfriend, the bond he held with his mother and how her death affected him at the age of twelve, his poor relationship with his father who was a heroin addict, and his positive relationships with his extended family. Bevel also presented the testimony of Dr. Harry Krop, a psychologist, who conducted neuropsychological evaluations and other personality tests to evaluate Bevel for competency to stand trial and his mental state at the time of the crimes, and to explore his psychological status and background to prepare to possibly testify during the penalty phase.
Among other things, Dr. Krop testified about Bevel's low full-scale IQ of 65, which placed him in the range of mild mental retardation; however, he stated that Bevel could not be diagnosed as mentally retarded because, based on Bevel's letters and writings from prison, he believed Bevel "had a lot of street sense and . . . clearly has a higher level of adaptive functioning." Dr. Krop stated that Bevel's mental age is somewhere around that of a fourteen- or fifteen-year-old and that he would function well in a structured environment such as the general population at prison. However, on cross-examination, Dr. Krop admitted that Bevel was clearly responsible for the crimes he committed; he also appreciated the criminality of the conduct, had no organic brain damage or other serious mental infirmity, and was not suffering from any mental illness at the time of the crime.

Id. at 512-13 (footnote omitted).

         The jury recommended the death penalty by a vote of eight to four as to the murder of Stringfield and by a unanimous vote of twelve to zero as to the murder of Sims. Id. at 513. Following the jury's recommendations, the trial court found the prior violent felony aggravating factor applicable to both murders, based on the contemporaneous crimes and the prior attempted robbery, and assigned this aggravating factor "very great weight." Id. As to the murder of Sims, the trial court found the additional aggravating factor that the murder was committed to avoid arrest, assigning this aggravating factor "great weight." Id.

         In mitigation, the trial court rejected the statutory age mitigating circumstance, finding that it had not been proven by a preponderance of the evidence since Bevel was twenty-two at the time of the murders and his mental age, according to the trial court, was not significantly lower. Id. The trial court did, however, find the following six nonstatutory mitigating circumstances: (1) Bevel has religious faith and loves his family members (minimal weight); (2) Bevel confessed to the crime (little weight); (3) Bevel exhibited good behavior in jail (very little weight); (4) Bevel exhibited good behavior in court (little weight); (5) Bevel has an IQ of 65 (little weight); and (6) Bevel struggled with the death of his mother (very little weight). Id. at 513 & n.4.

         "The trial court concluded that the aggravating [factors] strongly outweighed the mitigating circumstances as to the murder of Stringfield and that the aggravators far outweighed the mitigators as to the murder of Sims." Id. at 513. "In fact, the trial court noted that either aggravator standing alone would outweigh the mitigators in the murder of Sims." Id. The trial court therefore sentenced Bevel to death for both murders. Id.

         On direct appeal to this Court, Bevel raised nine claims: (1) the trial court erred in failing to strike a juror for cause on the asserted ground of favoring law enforcement; (2) the trial court erred in finding that the aggravating factors outweighed the mitigating circumstances; (3) Bevel's death sentences are disproportionate; (4) the trial court erred in denying Bevel's motion arguing that Florida's death penalty statute is unconstitutional because a jury, rather than a judge, must make a unanimous finding as to the aggravators; (5) the trial court erred in the weight assigned to the aggravating factors and mitigating circumstances; (6) the trial court abused its discretion in allowing photographic evidence that was gruesome and unduly prejudicial; (7) the trial court erred in admitting Bevel's confession; (8) the trial court erred in adopting verbatim the State's proposed findings of fact and conclusions of law; and (9) the death penalty is inappropriate because Bevel's mental age is under that of an eighteen-year-old. Id. at 513 n.5. This Court unanimously rejected all of Bevel's claims and affirmed his murder convictions and death sentences. Id. at 526.

         Bevel subsequently filed an initial motion for postconviction relief, pursuant to Florida Rule of Criminal Procedure 3.851, in which he raised the following ten claims: (1) trial counsel was ineffective during the guilt and penalty phases of Bevel's trial; (2) Bevel was deprived of the right to the effective assistance of a mental health expert as required by Ake v. Oklahoma, 470 U.S. 68 (1985); (3) Bevel is ineligible for the death penalty because he is intellectually disabled; (4) the State improperly withheld material evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); (5) Bevel was erroneously denied access to public records; (6) Bevel's death sentences are unconstitutional because the State does not have uniform standards for determining whether to seek the death penalty; (7) Bevel's death sentences are not proportionate; (8) cumulative error deprived Bevel of a fundamentally fair trial; (9) Florida's capital sentencing scheme is unconstitutional in violation of the Sixth and Eighth Amendments to the United States Constitution; and (10) execution by lethal injection is unconstitutional.

         The postconviction court held a Huff[1] hearing and thereafter entered an order granting an evidentiary hearing as to three of Bevel's claims: claim 1, pertaining to ineffective assistance of counsel; claim 3, pertaining to intellectual disability; and claim 4, pertaining to Brady. The postconviction court determined that the remaining claims could be decided as a matter of law, with the exception of the cumulative error claim, which it would decide after the evidentiary hearing.

         During an evidentiary hearing that spanned four days, Bevel presented testimony from the following thirteen witnesses: Refik Eler (trial counsel for Bevel who was responsible for the guilt phase); Richard Selinger (trial counsel for Bevel who was responsible for the penalty phase); Mike Hurst (private investigator for the defense); Antorio McCray (Bevel's older brother); Laurel French Wilson (an attorney who had represented Bevel in juvenile court); Carl Burden (Bevel's friend); Barbara Jean Fisher (Bevel's aunt); Lavonne McCray (Bevel's uncle); Maria Sardinas (Bevel's foster parent); Gregorio Hector Sardinas (Bevel's foster parent); Dr. Chester Aikens (employer of Bevel's mother); Blanche Juliette Thayer (social worker); and Sara Flynn (mitigation specialist). In addition, expert witness testimony was elicited from four mental health experts: Dr. Harry Krop, the defense expert from trial; Dr. Robert Ouaou; Dr. Steven Gold; and Dr. Richard Dudley.

         Following the evidentiary hearing, the postconviction court issued an order denying Bevel's motion for postconviction relief. In its order, the postconviction court determined, as a matter of law, that claims 2 (Ake), 5 (public records), 6 (lack of uniform standards), 7 (proportionality), 9 (constitutionality of death penalty statute), and 10 (constitutionality of lethal injection) were without merit. As to claims 1 and 4 (the ineffective assistance of counsel and Brady claims), the postconviction court concluded that Bevel had failed to demonstrate prejudice, and as to claim 3 (the intellectual disability claim), the postconviction court determined that "Bevel's adaptive functioning precludes a diagnosis of mental retardation." Because the postconviction court found no individual error, it also denied claim 8 (the cumulative error claim).

         On appeal to this Court, Bevel contends that the postconviction court erred in denying the ineffective assistance of penalty phase counsel claim. He does not challenge the denial of the intellectual disability[2] or Brady claims, nor does he raise any substantive issue pertaining to the summarily denied claims.[3] He has, however, filed an accompanying petition for a writ of habeas corpus, raising a claim of ineffective assistance of appellate counsel. Bevel also argues that he is entitled to Hurst[4] relief.

         II. ANALYSIS

         We begin by addressing whether Bevel is entitled to postconviction relief as a result of our decision in Hurst, requiring unanimity in the jury's findings of "the existence of each aggravating factor that has been proven beyond a reasonable doubt, the finding that the aggravating factors are sufficient . . . the finding that the aggravating factors outweigh the mitigating circumstances, " and unanimity as to the jury's final recommendation for death. 202 So.3d at 44. We conclude that Bevel is entitled to Hurst relief for his death sentence imposed for the murder of Stringfield, which the penalty phase jury recommended by a vote of eight to four. However, Bevel is not entitled to Hurst relief for his death sentence imposed for the murder of Sims, which the penalty phase jury unanimously recommended. After addressing Bevel's Hurst claim, we then address Bevel's postconviction claim of ineffective assistance of penalty phase counsel and conclude that Bevel has demonstrated both deficient performance and prejudice under Strickland.[5]Thus, we conclude that Bevel is entitled to a new penalty phase based on his ineffective assistance of counsel claim. We also address Bevel's habeas petition, which we conclude lacks a basis for relief.

         A. Hurst v. Florida and Hurst

         In Hurst, we explained that "the jury in a capital case must unanimously and expressly find all the aggravating factors that were proven beyond a reasonable doubt, unanimously find that the aggravating factors are sufficient to impose death, unanimously find that the aggravating factors outweigh the mitigating circumstances, and unanimously recommend a sentence of death." 202 So.3d at 57-58. In Mosley v. State, 209 So.3d 1248 (Fla. 2016), this Court held that Hurst applies retroactively to death sentences that became final after the United States Supreme Court decided Ring v. Arizona, 536 U.S. 584 (2002). Because Bevel's conviction became final after Ring, [6] Hurst applies retroactively to his case. See Mosley, 209 So.3d at 1283. In light of the jury's nonunanimous recommendation of death for the murder of Stringfield, we cannot conclude beyond a reasonable doubt that the jury made the requisite findings required by Hurst. Nor can we speculate why four jurors determined that death was inappropriate for the murder of Stringfield. Thus, we conclude that the Hurst error in this case as to the Stringfield murder was not harmless beyond a reasonable doubt. Accordingly, we vacate Bevel's sentence of death imposed for the murder of Stringfield.

         As to Bevel's death sentence for the murder of Sims, which the penalty phase jury unanimously recommended, we "conclude beyond a reasonable doubt that a rational jury would have unanimously found that there were sufficient aggravators to outweigh the mitigating factors." Davis v. State, 207 So.3d 142, 174 (Fla. 2016). In this case, where no aggravating factors have been struck, "we can conclude that the jury unanimously made the requisite factual findings" before it unanimously recommended that Bevel be sentenced to death for the murder of Sims, and we therefore deny relief under Hurst for that death sentence. Id. at 175. We next consider whether Bevel's penalty phase counsel was ineffective, therefore entitling Bevel to a new penalty phase.

         B. Ineffective Assistance of Penalty Phase Counsel

         Following the United States Supreme Court's decision in Strickland v. Washington, 466 U.S. 668 (1984), this Court has explained that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:

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 ...

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